Even More on Netanyahu's Address to Congress
Michael Ramsey

Ryan Scoville has these thoughts at Just Security: Boehner Invites Bibi: A Closer Look at Historical Practice.  From the introduction:

[In regard to] questions of original meaning and custom ... I think the blogosphere has been too summary in its judgment. Ramsey emphasizes that influential members of the Washington Administration viewed the executive as a constitutionally required intermediary for official communication between Congress and foreign governments. Spiro suggests that there is no supporting practice from the Founding Era. And Bernstein states, albeit somewhat tentatively, that “direct diplomatic relations with foreign governments are exclusive in the executive.” In my view, this commentary overlooks a lot of important precedent and, in the case of Ramsey, focuses too much on the views of the Washington Administration and too little on contemporaneous understandings of the First Congress. 

Professor Scoville is the author of the outstanding article Legislative Diplomacy (Michigan Law Review 2013).

Also, Peter Spiro (who started all this!) has additional thoughts at Opinio Juris: More on Boehner’s Netanyahu Invite (and What It Says About Constitutional Change).  Although in theory I don't disagree with him as a descriptive matter, and perhaps not even as a normative matter, that practice can create precedents beyond the original meaning, I think he reads a bit much into this particular incident.  Whether the address ultimately goes forward or not, I don't think it will be regarded as a happy precedent.

Orin Kerr and Larry Solum on Originalism and Same-Sex Marriage (UPDATE: And Lots More from Ilya Somin)
Michael Ramsey

At Volokh Conspiracy, Orin Kerr asks: Is there an originalist case for a right to same-sex marriage?  His post reviews arguments by Steven Calabresi, Ilya Somin, William Eskridge and me, and continues: 

These are important arguments, but here’s where I am stuck: I don’t yet see how these are distinctly originalist arguments. My primary problem is at ... the articulation of the broad principle. I am not an originalist theoretician, so maybe I am missing something. But I would think that for these arguments to be considered distinctly originalist arguments, at a minimum, the process by which we identify the broad principle that the Fourteenth Amendment adopts has to be based on specific constitutional text as it was understood by the public at the time of its enactment. From what I can tell, the originalist arguments made so far haven’t really done that. As a result, I’m not sure there is anything distinctly originalist about these claims.

Larry Solum responds at Legal Theory Blog:  What Should Count as an Originalist Case for a Right to Same Sex Marriage (a long and insightful post that defies any easy summary).

My brief response to Professor Kerr's challenge is this: I agree with his standard, that "for these arguments to be considered distinctly originalist arguments, at a minimum, the process by which we identify the broad principle that the Fourteenth Amendment adopts has to be based on specific constitutional text as it was understood by the public at the time of its enactment."  I think my (tentative) argument meets that standard.

For me, the specific constitutional text is the equal protection clause, which (I assume) has an original meaning that imposes some sort of equal treatment requirement.  (This is controversial among originalists and I'm not trying to defend it here; I am only assuming it to get to the hard part).  But, still agreeing with Professor Kerr, an originalist needs to show, not just that some idea of equal treatment establishes a right to same-sex marriage, but that the public meaning of equal treatment at the time establishes a right to same-sex marriage.  

In the next step I would ask what principle did the public meaning at the time establish.  I say that it is something like an anti-caste provision.  The paradigm case of equal treatment was for Blacks to be treated equally with Whites.  But the clause does not say just that, so it should be read to mean that sort of discrimination or anything like it (else they would have used specific rather than general language).  So, for example, discrimination against Chinese laundries is also covered, as in Yick Wo v. Hopkins, even if no one at the time of enactment was thinking about Chinese laundries.

So far, I think the argument is comfortably originalist, and I doubt Professor Kerr would disagree. The trick is in the next step.  It's clear that at the time no one would have thought the rule established by the equal protection clause meant there was a right to same-sex marriage, had they considered it.  Is is possible they were mistaken?

My argument is that they might have been.  Unlike some originalists, I think it is very hard to make an argument for applying a rule in a way that is expressly contrary to the common expectation of how it would be applied at the time of enactment.  But hard is not impossible.  In this case, it's possible to say that we now understand discrimination on the basis of sexual orientation in a different way than they did, and, in particular, we understand it in a way that might make it resemble discrimination on the basis of race. And if  that's the case, then I think we can say that the discrimination is unconstitutional under the same originalist rule that makes race discrimination unconstitutional.  It is (as Ilya Somin says) just a case of applying the old rule to a new circumstance, except that the circumstance is "new" not because of a change in technology but because of a change in the way we understand the relevant facts.

To be clear, there are a number of highly contestable steps in the argument, but my view is that if you accept the steps you have made an originalist argument.

UPDATE:  Ilya Somin has extensive further comments (which I read after writing the above): Originalism is broad enough to include arguments for a constitutional right to same-sex marriage.  I think we are in broad agreement.

FURTHER UPDATE:  Orin Kerr and Ilya Somin continue the conversation: More on originalism and same-sex marriage (Kerr) and Originalism and same-sex marriage revisited – a further rejoinder to Orin Kerr (Somin).


David Sloss: Bond v. United States: Choosing the Lesser of Two Evils
Michael Ramsey

David Sloss (Santa Clara University - School of Law) has posted Bond v. United States: Choosing the Lesser of Two Evils (Notre Dame Law Review, Forthcoming) on SSRN. Here is the abstract: 

In Bond v. United States, Carol Anne Bond used toxic chemicals in an attempt to poison her husband’s lover. The federal government prosecuted Bond for violating the Chemical Weapons Convention Implementation Act of 1998 (the “CWC Act”). Congress enacted the CWC Act to implement U.S. obligations under the Chemical Weapons Convention (CWC), a multilateral treaty signed in 1993 that is designed to address the global threat posed by chemical weapons. Bond challenged the constitutional validity of the federal statute and urged the Court to overrule Missouri v Holland, a 1920 case holding that the combination of the Treaty Power and the Necessary and Proper Clause empowers Congress to enact treaty-implementing legislation that would exceed the scope of Congress’ Article I powers in the absence of a treaty. Chief Justice Roberts, writing for the majority, avoided the constitutional question by adopting a narrow construction of the statute. Justice Scalia, writing for himself and Justice Thomas, would have overruled Holland and invalidated the CWC Act.

This essay makes two main points. First, the majority’s interpretation of the CWC Act is inconsistent with the statute and the underlying treaty. Indeed, the majority opinion displays a basic misunderstanding about the design of the underlying treaty. Second, Justice Scalia’s construction of the Necessary and Proper Clause is antithetical to the structure and original understanding of the Constitution. If adopted as law, Justice Scalia’s view would seriously harm the federal government’s ability to conduct foreign affairs on behalf of the nation. Since Justice Scalia’s constitutional error would be far more damaging than the majority’s statutory error, the majority’s statutory misinterpretation is the lesser of two evils.

Another paper for the Notre Dame Law Review's outstanding symposium on Bond.


Ilya Somin on William Eskridge on Originalism and Same-Sex Marriage
Michael Ramsey

At Volokh Conspiracy, Ilya Somin: William Eskridge on originalism and same-sex marriage (discussing the post noted here). Professor Somin offers this alternative originalist approach:

Overall, I continue to believe that the better originalist argument for striking down laws forbidding same-sex marriage is that such laws amount to unconstituitonal sex discrimination. Unlike in the case of gays and lesbians, most informed observers in the 19th century clearly recognized that women are a distinct class, and that laws discriminating against could be challenged under Fourteenth Amendment. Most of them nonetheless believed that all or nearly all sex-discriminatory laws of that era were constitutional. But that conclusion was premised on factual understandings about women’s capabilities that have been superseded by later evidence. Similarly, nineteenth century (and later) support for laws restricting marriage on the basis of gender were also premised on factual assumptions that later evidence proves largely false. As nearly all originalists recognize, that methodology is entirely consistent with updating the application of its fixed principles in light of new factual information. Indeed, such updating is often not only permitted, but actually required by the theory. Otherwise, it will often be impossible to enforce the original meaning under conditions different from those envisioned by the generation that framed and ratified the relevant provision of the Constitution.

Ramsey and Tillman on the Receive Ambassadors Clause
Mike Rappaport

Mike Ramsey and Seth Barrett Tillman have been debating whether House Speaker John Boehner’s invitation to Israel's Prime Minister Netanyahu to speak to Congress is unconstitutional.  See also the posts by David Bernstein and Peter Spiro.    

Here I do not want to take a position on the issue, but just to note some interpretive moves that Mike and Seth make concerning the Receive Ambassadors Clause, which provides that the President “shall receive Ambassadors and other public Ministers.” 

Seth argues for a strict reading of ambassador and public minister.  He argues that Netanyahu is neither an ambassador or public minister.  An ambassador has a meaning that excludes heads of government and other public ministers extends only to “diplomatic officials having lesser status or rank than ‘Ambassadors.’”  He supports this reading of other public ministers with various other clauses that seem to suggest this reading of other public Ministers.  See Article 2, Section 2, Clause 2 (referring to “Ambassadors, other public Ministers and Consuls” as under the scope of the President’s appointment power).  See also Article 3, Section 2, Clauses 1 and 2 (similar as to judicial power).  As a reading of the language, Seth’s argument here is quite plausible.

Mike contends for a broader reading of “other public minister.”  To support this, he writes that “the alternative would be a strange result: that the President would receive the Israeli ambassador, but not Israel's head of government.”  What type of argument is this strange result claim?  One might interpret it as a purpose argument – the purpose of the Clause is to have the President receive representatives of foreign governments and the head of the government is the chief representative. 

Is this a legitimate use of a purpose argument for a textualist?  In my view, so long as one reads “other public minister” as ambiguous – as having this as one of its meanings – then it is legitimate.  Even if Seth’s proposed meaning is the stronger reading of the language (without reference to the purpose), this purpose argument might shift the result toward’s Mike’s reading so long as one concludes this purpose argument is sufficiently strong. 

Is this language ambiguous?  One can imagine Seth denying it is.  The language sets forth ambassadors and then includes “other public ministers” as similar but lesser officials.  But Mike might reply that the reason ambassador is singled out is because it was the most common representative, not that it was the highest representative. 

(Cross Posted at the Liberty Law Blog)     

Adam White and Josh Blackman on Netanyahu's Proposed Address to Congress
Michael Ramsey

Adam White has this thoughtful post at The Weekly Standard: The Constitution Doesn't Let President Close Congress's Doors to Israel (disagreeing with my view).  [He calls me "a significant voice[ ] in the conservative legal movement," which I doubt is true, but thanks!]

Among other points, the post asks: "Would Professor Ramsey prohibit Republican presidential candidates, including members of Congress, from traveling abroad to meet with foreign audiences and leaders, as President Obama did in 2008...?"  My answer is: that's another matter.  First, it's not a problem if the President doesn't object (and in most instances I doubt there was any objection). Second, it is much less textually problematic: it doesn't violate the reception clause, because the foreign representative isn't being formally received; and it doesn't raise the issue of Congress' power because it isn't an act of Congress.  Third, a very different message is sent when an individual member meets privately with a foreign representative, as compared when a foreign leader is invited to make a formal speech to all of Congress; the individual communication is much less likely to undercut the President's role as diplomatic mouthpiece of the nation.  So I don't think my view on addressing Congress commits me to a view on communications by individual members.  That said, I do think it a little troublesome when individual members meet with foreign leaders against the President's wishes for the specific purpose of communicating a message contrary to the President's views.

Meanwhile, Josh Blackman has this take on the matter at his blog: Gridlock and Congressional Power (in a nutshell, saying that gridlock doesn't authorize congressional overstepping any more than it authorizes presidential overstepping, which sounds right to me).


A Response on Netanyahu's Address to Congress
Seth Barrett Tillman

I think the question posed – Is Netanyahu’s addressing Congress constitutional? – is closer than Professor Bernstein’s and Professor Ramsey's posts suggest. I see this question as a competition between two implied powers (albeit, perhaps, each power is beyond the scope of the Necessary & Proper Clause). But Professor Ramsey suggests that the President can rely on an enumerated power.
Article II, Section 3, provides that “he [the President] shall receive Ambassadors and other public Ministers.” In this situation, Prime Minister Netanyahu, appearing as the official representative of his country, should be classed as a “public Minister.”
I don’t think that is right. “Public minister” in everyday modern American-English might extend to all foreign government officials. However, as I understand it, back in 1788-1789, the language “other public Ministers” extended to diplomatic officials having lesser status or rank than “Ambassadors”. That is (I suspect) the reason “public Minister” follows “Ambassadors” in Article II, Section 3. There are further diplomatic officials having even lower status than “public Ministers”; they are called “consuls”. See Article 2, Section 2, Clause 2 (referring to “Ambassadors, other public Ministers and Consuls” as under the scope of the President’s appointment power); Article 3, Section 2, Clause 1 (extending the judicial power to “Ambassadors, other public Ministers and Consuls”); Article 3, Section 2, Clause 2 (same). Foreign legislative leaders and foreign heads of government do not squarely fall under the “public Minister” rubric. Moreover, a legislative leader who is not a minister (a/k/a cabinet member), who does not control a ministry (a/k/a an American agency) is not a “public Minister” at all.
As an abstract matter, the answer to the original query should be resolved as a competition between two sets of implied powers: on the one hand, the President’s power to act as the sole channel of official communications between the national government and foreign powers, and, on the other hand, Congress’ power to inform itself and to maintain exclusive control over access to its physical facilities. Framed this way, the question is reasonably close. But there is an easy way to resolve the dispute. The President and his officials control the borders; that is, the President can physically exclude foreigners from entering the United States, particularly where such foreigners intend to assist (purported) violations of the President’s implied constitutional powers. If the President refuses to exclude, where self-help is in easy reach, that is implied consent. And Congress should prevail on these facts.
To put it another way, certain undocumented aliens / illegal immigrants are in the United States in contravention to express statutory provisions. But the President does not have to enforce each such statutory provision against any one such person. If the President exercises his discretion not to enforce the power to arrest, try, and exclude such a person, the President could even (theoretically) take such a person on a tour of the White House or make that person his personal guest at a State of the Union address (as insane as that might sound). Congress might exclude such a person from its physical premises, but if it does not do so, that is implied consent by Congress to the person’s presence during the President’s annual address. Just so – if the President’s border control officials admit Netanyahu at a time it is publicly known Netanyahu intends to speak to Congress, such admission by the President constitutes implied consent to Netanyahu’s addressing Congress.

Alexander Kasner: National Security Leaks and Constitutional Duty
Michael Ramsey

Alexander Kasner (Stanford Law School J.D. '15) has posted National Security Leaks and Constitutional Duty (Stanford Law Review, Vol. 67, No. 1, 2015) on SSRN. Here is the abstract:

Edward Snowden’s disclosure of national security information is the newest chapter in the United States’ long and complicated history with government leaks. Such disclosures can help to root out illegal and unconstitutional behavior that might otherwise evade scrutiny. And yet, unlike the press, government leakers are often assumed to have no claim to constitutional protections. National security leaks are treated as an opportunity to discuss the constitutionality of underlying government conduct or the balance of federal powers, but there is little reflection on the leaker who made the discussion possible. This Note addresses that oversight by focusing our attention on the Constitution’s treatment of government officials who choose to leak. In so doing, it asks us to consider the duty of executive officers to affirmatively support the Constitution, itself required by the very text of the Article VI Oath Clause.

This Note presents one of the first concentrated studies of the Article VI Oath Clause, drawing upon its text, structure, and history to draw out the obligation it places on executive officers to resist unconstitutional government behavior. It also explains how recent developments in national security, secret keeping, and the doctrine of standing render the Article VI duty even more critical. At the same time, this Note departs from other literature by recognizing that unfettered disclosures of broad swaths of information are constitutionally indefensible. I contend that the Article VI duty should generally be limited to Article II executive officers, that it endorses some but not all affirmative disclosures, and that it anticipates constitutional interpretation as a shared enterprise between the judiciary and those officers. This Note concludes by discussing the implications of the duty, both suggesting potential legal and policy solutions and reflecting on our assumptions about constitutional interpretation and enforcement.


Is Netanyahu’s Address to Congress Unconstitutional? (UPDATED)
Michael Ramsey

As has been widely reported, House Speaker John Boehner has invited Israel's Prime Minister Netanyahu to address the U.S. Congress.  If Congress does host the speech, would it be unconstitutional?  Peter Spiro at Opinio Juris suggests that it would.  I agree.

First, Congress has no Article I, Section 8 to host a foreign leader.  (Moreover, the necessary and proper clause, the usual refuge of Congress when it lacks an express power, isn’t available here, because Congress isn’t passing a law.  The power is only to “make all Laws which shall be necessary and proper…”).

Second, reception of foreign leaders is an exclusive power of the President.  Article II, Section 3, provides that “he [the President] shall receive Ambassadors and other public Ministers.”  In this situation, Prime Minister Netanyahu, appearing as the official representative of his country, should be classed as a “public Minister.”  (The alternative would be a strange result: that the President would receive the Israeli ambassador, but not Israel's head of government).  The President’s power here is properly understood as exclusive – both because that is how the reception power has traditionally been regarded since the Washington administration and because that is the implication of specifically calling it out in Article II.  Consider the other presidential powers specifically identified in Article II: to make treaties (subject to Senate approval); to nominate judges, ambassadors and other executive officers; to make recess appointments; to execute the law; to commission officers of the United States – all are exclusive.  So too is the reception power, which is granted in parallel with these powers.

Of course, a foreign leader may appear before Congress at the invitation of the President (as has happened many times in the past).  The President’s reception and communication powers include the power to decide how an ambassador or foreign minister shall be received and with whom he should communicate; the President might think an appropriate reception should include an appearance before Congress.  I see no constitutional difficulty with that determination.  The present case is different, though, because Congress cannot rely on the President’s reception power for authorization.

As described in The Executive Power over Foreign Affairs, George Washington as President asserted his role as the “sole channel of official intercourse” with foreign nations.  (Letter from Washington to the Emperor of Morocco, Dec. 1, 1789, cited at 111 Yale L.J., p. 317; further discussion of the point at pp. 318-322).  Notably, Washington quarreled with French ambassador Edmond Genet in 1793, who sought to enlist U.S. support for France in its conflict with Britain.  When Washington insisted on neutrality, Genet attempted to communicate directly with Congress, which he suspected was more sympathetic to France than the President.  Washington, through Secretary of State Thomas Jefferson, responded sharply:

Jefferson upbraided Genet for attempting to contact Congress at all, declaring that all of Genet’s transactions must occur with the Executive of the United States.  Any communications between the President and Congress were none of his business, and he could not interfere.  The “President must be left to judge for himself what matters his duty or the public good may require him to propose to the deliberations of Congress.” 

(The Executive Power over Foreign Affairs, 111 Yale L.J. at 322, quoting Letter from Jefferson to Genet, Dec. 31, 1793).  Ultimately Washington asked France to recall Genet, in part due to his attempts to circumvent the President and appeal instead to the supposedly pro-French Congress.

The current situation  replays the events of 1793.  Netanyahu presumably believes (probably correctly) that Congress is more sympathetic to his nation’s predicament than is the President, and that by appealing directly to Congress he can pressure the President into a more favorable policy.  However, as Jefferson explained to Genet, the President is the channel of communication between the United States and foreign powers, and “no foreign agent can be allowed … to interpose between him and any other branch of Government.”  (Id. at 321, quoting Letter from Jefferson to Genet, Nov. 22, 1793).  The Constitution assures this result first by failing to convey any diplomatic power to Congress, and second by giving the President control over both outgoing communication (via U.S. ambassadors, who are removable by the President) and incoming communication (via foreign ambassadors and other public ministers, who are received by the President).

And as an aside, if the current facts do not seem to make the constitutional point sharply, consider the situation had a Democratic Congress invited Fidel Castro, Daniel Ortega or Mikhail Gorbachev to address Congress over President Reagan’s objection.

UPDATE (10:00 pm):  At Volokh Conspiracy, David Bernstein notes the above post and comments here, mostly in agreement.  Of course I agree with Professor Bernstein's clarification that Prime Minister Netanyahu himself isn't violating the Constitution since he isn't bound by it.  Congress violates the Constitution by hosting the speech.

I think this is a good summary: 

Here’s the logic of the “unconstitutional” position: (a) the power to receive ambassadors and public ministers a foritiori includes the power to receive foreign heads of state when they are here on diplomatic business; (b) this power is lodged by Constitution in the executive, and, explicitly given to the executive, Congress can’t exercise it unless at the invitation of the president. There is good reason for this, because while Congress has a role in foreign policy, direct diplmoatic relations with foreign governments are exclusive in the executive, so the nation speaks with one voice–Congress could not have its own State Department, for example; and (c) Netanyahu is coming to speak to Congress on a formal diplomatic mission, not for mere private conversation or consultation, and thus the president has to give his assent, or at least Congress shouldn’t do it over the president’s objection. None of these three points is unassailable, but they do strike me as likely being right.


Richard Garnett: Chief Justice Rehnquist, Religious Freedom, and the Constitution
Michael Ramsey

Richard Garnett (Notre Dame Law School) has posted Chief Justice Rehnquist, Religious Freedom, and the Constitution (Bradford P. Wilson, ed., The Constitutional Legacy of William H. Rehnquist (West Academic Press, 2015 Forthcoming); Notre Dame Legal Studies Paper No. 1501) on SSRN. Here is the abstract: 

It might not have been foreseen that William Rehnquist would have a marked influence on the Supreme Court’s interpretation, construction, and application of the First Amendment’s Religion Clauses. And yet, he certainly did. Kent Greenawalt wrote that Rehnquist – or, more precisely, the “Rehnquist Court” – “turned the constitutional law of religion upside down.” “[W]e have moved,” he reported, “from expansive readings of both of the religion clauses to narrow readings of the Free Exercise Clause and of very important aspects of the Establishment Clause.” It is suggested in this paper that in facilitating and guiding the “move[s]” identified by Greenawalt, Rehnquist for the most part “turned the constitutional law of religion” right-side up, rather than “upside down.” He left the Court’s Religion Clauses doctrine better than it was before, that is, better rooted in the Constitution’s text, history, structure, and values than it was when he joined the Court. In any event, that the “move[s]” happened, and that they happened in no small part because of him, seems beyond dispute.

Rehnquist was able, for the most part, to exercise both judicial humility in the face of politically accountable actors’ attempts to deal with debatable questions of policy and morality – including most of the questions that arise in free-exercise and non-establishment cases – and careful review of measures and actions that might compromise the structural integrity of our Constitution. This paper’s appreciative review of his contributions to the Court’s Religion Clauses doctrine will, it is hoped, serve as a reminder that cases involving tension or collision between political and religious authority implicate the “first principles” of our constitutional experiment no less than those involving federal interference with the states’ appropriate functions or regulatory overreach by Congress.


Michael Knoll & Ruth Mason: Striking a Balance between State Sovereignty and Interstate Commerce
Michael Ramsey

Michael  Knoll (University of Pennsylvania Law School ; University of Pennsylvania - Real Estate Department) and Ruth Mason (University of Virginia School of Law) have posted Wynne v. Comptroller: Striking a Balance between State Sovereignty and Interstate Commerce (U of Penn, Inst for Law & Econ Research Paper No. 14-44) on SSRN. Here is the abstract:

Wynne v. Comptroller, the dormant Commerce Clause case currently before the Supreme Court, has already been called the Court’s most important state tax case in decades because the Court seems poised to reshape the Constitutional balance between state sovereignty over taxation and the national interest in maintaining an open economy. The challenge for the Court, whose dormant Commerce Clause rulings have been strongly criticized by commentators and the Court itself, is to prescribe clear limits on tax discrimination without unduly restricting the states’ taxing authority. In a series of articles focusing on a similar line of cases from the European Union, we used economic analysis to develop a framework to resolve tax discrimination cases in a consistent and intuitive manner that provides states with broad flexibility while maintaining an open interstate market. In this essay, we apply that framework to Wynne; we also describe how our approach resolves many issues that seemed to trouble the Justices at oral argument, especially the confusion between double taxation and tax discrimination.


More on Rand Paul and Judicial Restraint
Michael Ramsey

Continuing the debate noted in this post, Evan Bernick replies to Ed Whelan at NRO: When Courts Abdicate -- There’s nothing originalist in rubber-stamping laws that wrongly infringe liberty.  From the core of the argument: 

Ed chides me for failing to explicitly embrace originalism. (For the record, I’m an originalist.) But even a universal commitment to originalism would not cure what ails our judiciary. It is impossible for judges to hold the government to the terms of a written Constitution if they do not judge. Under the rational-basis test, judges must uphold a law unless the plaintiff can perform a logically impossible feat: refuting an infinite set of negatives. This standard of review has no basis in constitutional text or the political philosophy that informs it — no surprise, given that it is the product of a Court, the Holmes Court, that largely signed on to the so-called Progressive agenda (as Ed rightly notes, this agenda was predicated upon the “abandonment of originalist principles”). As James Madison noted in Federalist 10, “No man is allowed to be a judge in his own cause, because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity.” When judges do not judge (or, rather, when they merely go through the motions of judicial review while depriving it of any substance, as they routinely do in rational-basis cases), the political branches are left to be judges in their own cause, and unconstitutionality follows.

Ed Whelan replies: More on Rand Paul’s Support for Judicial Activism.  Matthew Franck adds these thoughts: Misreading Federalist No. 10.

I'm not sure that Evan Bernick's (and Rand Paul's) central claim is adequately answered, though. The Constitution (given its original meaning) imposes substantial limits on Congress, both structurally and through individual rights.  One may doubt how effective those can be without judicial enforcement of them.  But meaningful judicial enforcement requires an independent judicial assessment both of the Constitution's original meaning and (often) of the circumstances surrounding the challenged enactment.  If courts defer to the legislature, through some version of the rational basis test, judicial enforcement becomes very thin.

Of course, you can say this deference is a good thing (in the terms of my earlier post, as a "restrained originalist"), although you would need some argument for it aside from just opposition to "activism." More importantly -- as Senator Paul said in the remarks that prompted this debate -- you would have to give up some positions that are common ground to many originalists: for example, you might have to agree with the majority in Kelo v. New London; the majority in Gonzales v. Raich; and the majority in NFIB v. Sebelius.  The short of it is that a nominal commitment to originalism plus strong deference to the legislature (or the executive branch) is not going to do much to implement the Constitution's original design of limited government.


Ernest Young: Constitutionalism Outside the Courts
Michael Ramsey

Ernest Young (Duke University - School of Law) has posted Constitutionalism Outside the Courts  on SSRN. Here is the abstract: 

This essay is a chapter to be included in the forthcoming Oxford Handbook on the U.S. Constitution. Using the actions of Arkansas Governor Orville Faubus during the Little Rock crisis of 1957 and the U.S. Supreme Court’s subsequent decision in Cooper v. Aaron as a lens, it explores constitutional interpretation and enforcement by extrajudicial institutions. I explore the critique of Cooper’s notion of judicial supremacy by departmentalists like Walter Murphy, empirical scholars skeptical of judicial efficacy like Gerald Rosenberg, and popular constitutionalists like Larry Kramer and Mark Tushnet. I also consider four distinct institutional forms of extrajudicial constitutional interpretation and enforcement: protection of constitutional values through political processes and checks and balances; the role of social movements in shaping constitutional meaning; resolution of particular constitutional controversies in the political branches through processes of “constitutional construction”; and the role of “administrative constitutionalism.” The critique of judicial supremacy and the analysis of extrajudicial interpretation and enforcement have had a salutary impact in broadening the horizons of constitutional law. To the extent that theories of constitutionalism outside the courts are used to go further and attack judicial review, however, I find them less persuasive. One need not believe in judicial supremacy to value the courts’ ultimate settlement function in litigated constitutional controversies. If the Constitution is to continue to act as an external constraint on political action, then constitutionalism outside the courts can never be wholly autonomous of constitutionalism inside.


Statutory Expansion of the Marshall Court's Original Jurisdiction Was Very Clearly Unconstitutional
Andrew Hyman

Regarding Mike Ramsey's recent assertion [Ed.: in item (3) of the linked post)] that the Court's opinion in Marbury v. Madison may have been inconsistent with judicial restraint, it seems to me that the federal statutory provision at issue in that case was (at least as interpreted by the Court) very clearly unconstitutional.  That key aspect of the opinion absolutely was restrained, say what you will about the rest.

The Court's original jurisdiction is clearly limited to the list in Article III.  That Article gives Congress power to regulate the Court's appellate jurisdiction, but not its original jurisdiction.  Moreover, expressio unius should apply to the types of original jurisdiction listed in Article III.  I don't see any doubt about this, despite the absence of the word "only" in the Constitution's grant of original jurisdiction.  Congress clearly cannot expand the Court's original jurisdiction, and I'm unaware that it has ever gotten away with doing so.

Sure, Congress can allow the Court to have appellate jurisdiction in a case where the Court already has original jurisdiction, if the general judicial power extends to that case.  Nevertheless, issuing a mandamus to the executive branch seems clearly to be something a court can only do in exercise of original jurisdiction, as the Court held in Marbury, and Congress simply cannot expand the Court's original jurisdiction.

Even if one subscribes to "departmentalism" (which is Jefferson's notion that each branch interprets the Constitution for itself), the only power that was diminished in Marbury was the Court's own power (to issue a mandamus).  Furthermore, Secretary of State James Madison was very obviously not a "public minister" within the meaning of Article III's grant of original jurisdiction, given that that term is used in connection with ambassadors and consuls.

The only part of the exercise of judicial review in Marbury that seems a little doubtful is whether the Court properly interpreted section 13 of the Judiciary Act as purporting to give the Court power to issue a mandamus to the executive branch even in cases that do not satisfy the original jurisdiction requirements of Article III.  But I don't think that that uncertainty signifies a lack of judicial restraint, because the Court was clearly correct to hold that the alleged statutory expansion of original jurisdiction was void, either because it violated the Constitution or because it did not really happen.
One can plausibly argue that there was no clear conflict between the Constitution and the statute in Marbury.  However, a better characterization would be that there was indeed a clear conflict between the Constitution and the application of the statute that the Court rejected in Marbury.  
For more background about these issues, I recommend....
Amar, Akhil Reed, "Marbury, Section 13, and the Original Jurisdiction of the Supreme Court," University of Chicago Law Review (1989).


MIKE RAMSEY adds:  OK, I have to admit this is a pretty compelling argument.

The Declaration of Independence and the U.S. Constitution
Mike Rappaport

What is the relationship between these documents, especially for interpreting the Constitution?  There are several different possibilities.

1. Largely Unrelated. This is the conventional view in constitutional law.  Under this view, one generally can ignore the Declaration when interpreting the Constitution.  One justification is that the Declaration had a limited purpose – announcing to the world that the US was independent – and that was concluded by the end of the Revolutionary War.

2. Significant as a Document. Under this view, the principles announced in the Declaration are important guides to the meaning of the Constitution.  The force of the Declaration comes from the fact that it is one of the foundational documents in US history.  While not the standard view in either  originalist or conventional constitutional law, it does have some adherents.

3. Significant as Evidence of Political Principles. Under this view, the Constitution should be interpreted in accordance with certain important political principles, such as natural law or traditional common law principles.  The Declaration is evidence that natural law principles were widely accepted by the people in the latter part of the 18th  The reason for employing these principles, however, is not that they are in the Declaration, but that they were widely accepted.

I am not entirely sure whether I hold position 1 or 3 (or something in between), but I believe that position 2 is mistaken.

The argument for 2 is that the Declaration of Independence was an operative document that is one of the basic documents of U.S. history.  Under the English system of constitutional law at the end of 18th century, significant documents would have been included in the constitution – documents such as the English Bill of Rights and the Magna Carta.  But the American system departed from the English system by placing the entire constitution in a single document.

Another problem with this argument is that the Articles of Confederation was also a fundamental document of U.S. history, yet we do not interpret the Constitution in accordance with it (which is not to say that it is irrelevant to the interpretation of the Constitution).

Finally, the U.S. Constitution makes no reference to the Declaration, but such reference might have been expected if the Declaration were deemed to be a continuing part of constitutional law.

It is not really clear that people who want to interpret the Constitution in accordance with natural law need the Significant as a Document view.  The natural law content would be much the same under the Significant as Evidence view, and that view could rely upon far more evidence and support.  In the future, I hope to post about this latter view.

Randy Kozel: Original Meaning and the Precedent Fallback
Michael Ramsey

Randy Kozel (Notre Dame Law School) has posted Original Meaning and the Precedent Fallback (Vanderbilt Law Review, Vol. 68, No. 1, 2015) on SSRN. Here is the abstract: 

There is longstanding tension between originalism and judicial precedent. With its resolute focus on deciphering the enacted Constitution, the originalist methodology raises questions about whether judges can legitimately defer to their own pronouncements. Numerous scholars have responded by debating whether and when the Constitution’s original meaning should yield to contrary precedent.

This Article considers the role of judicial precedent not when it conflicts with the Constitution’s original meaning but rather when the consultation of text and historical evidence is insufficient to resolve a case. In those situations, deference to precedent can serve as a fallback rule of constitutional adjudication. The strengths and weaknesses of the originalist methodology take on a unique valence when a primary commitment to original meaning is coupled with a fallback rule of deference to precedent. Even when the Constitution’s original meaning leaves multiple options available, falling back on precedent can channel judicial discretion and contribute to a stable, impersonal framework of constitutional law.


William Eskridge on Originalism and Same-Sex Marriage
Michael Ramsey

SCOTUSblog is hosting a symposium on the same-sex marriage cases, including this post from William Eskridge (Yale): Original meaning, public deliberation, and marriage equality.  Excerpts:

Upon reflection, I believe that Justice Kennedy’s opinion in Romer provides the constitutional starting point, one grounded in the text and original meaning of the Equal Protection Clause.  Romer opened with a reminder that the Fourteenth Amendment’s original meaning was to bar class or caste legislation, including laws that discriminate against minorities, “not to further a proper legislative end but to make them unequal to everyone else.”  Judge Jeffrey Sutton’s thoughtful majority opinion in DeBoer invoked the original meaning of the Fourteenth Amendment but declined to engage with (or even acknowledge) Romer’s articulation of that original meaning.   In the marriage cases to be heard this Term, the Cato Institute (and other amici) will argue that original meaning strongly supports the equal protection challenges in these cases, a line of argument I wholeheartedly support.


To be sure, the original meaning of equal protection does not prevent the state from making neutral distinctions that advance the public interest, and traditionally judges have given the state wide leeway to make policy judgments.  So the central question in these appeals will be this:  What public interest justifies the exclusion of this minority group from a central state institution like civil marriage? 

Three quick thoughts:

(1)  It says something about originalism's new place that the most prominent academic defender of same sex marriage makes the text's original meaning the centerpiece of his argument.  

(2) Whatever one thinks of the merits, it would be better from a rule-of-law perspective for the Court to adopt this approach -- which as Professor Eskridge says, surely has at least a plausible root in original meaning (see also my thoughts here) -- than to persist with whatever it has been doing in this area.  A win for same sex marriage on these terms would be a win for originalism, even if one is not persuaded.

(3) The example of same sex marriage helps illustrate a point I suggested last week -- that originalism/nonoriginalism and activism/restraint are distinct dimensions of judicial decisionmaking.  Even if Professor Eskridge has the best argument for original meaning, it is a closely constested one.  So an activist originalist might well embrace it, but a restrained originalist likely would not.  (This isn't meant as a prescription either way, just as a description).

Ryan Scoville: Compelled Diplomacy in Zivotofsky v. Kerry
Michael Ramsey

Ryan Scoville (Marquette University Law School) has posted Compelled Diplomacy in Zivotofsky v. Kerry (NYU Journal of Law & Liberty, Vol. 9, 2014) on SSRN. Here is the abstract:

To the parties and lower courts, Zivotofsky v. Kerry has been a dispute primarily about the nature of the President's power to recognize foreign borders. But what if the law also raises another, entirely separate issue under Article II?

This essay explores the possibility that Section 214(d) of the Foreign Relations Authorization Act of 2003 is unconstitutional not because it recognizes a border or materially interferes with the implementation of U.S. recognition policy, but simply because it purports to compel diplomatic speech that the President opposes. From this angle, Zivotofsky presents a question about who controls official diplomatic communications, and recognition is beside the point.

I agree.  Although I would call it an issue under Article I.

UPDATE -- RELATED:  Martin Lederman has made some similar arguments at Just Security, previously noted (here and here) -- Zivotofsky: Questions about Article I and Executive diplomatic speech and The core of Zivotofsky: of passports, property, commerce, recognition . . . and, ultimately, diplomacy.


Duncan Hollis: An Intersubjective Treaty Power
Michael Ramsey

Duncan Hollis (Temple University - James E. Beasley School of Law) has posted An Intersubjective Treaty Power (Notre Dame Law Review, Vol. 90, No. 4, 2015) on SSRN. Here is the abstract:

Does the Constitution require that U.S. treaties address matters of international concern? For decades, conventional wisdom answered that question negatively; The Restatement (Third) of U.S. Foreign Relations Law dismissed the very existence of an international concern test. In Bond v. United States, however, three Justices – Alito, Thomas, and Scalia – insisted on its existence, pushing the issue into the foreground of foreign relations law.

This article analyzes whether the Constitution contains an international concern test and what contours it has. I argue that Justices Alito, Scalia and Thomas are correct – and the Restatement (Third) was wrong – on the test’s existence. Various modalities of constitutional interpretation – original meaning, historical practice, doctrine, structure, and prudence – offer evidence supporting some version of an international concern test. But I part ways with the Justices on how the test works. They and other proponents have tended to look for static or objective criteria to divide appropriate “international” matters from impermissible “purely domestic” ones.

In contrast, I argue that the international concern test is intersubjective. U.S. treaties can only be formed (or ratified, implemented, or applied) where the relevant actors at each stage (e.g., States in forming a treaty, the President and the Senate in ratifying it) share a belief that its subject-matter is international. Absent that understanding, the treaty will not be formed (or ratified, or implemented, or applied). Such views may coincide or divide depending on the context. Thus, the Supreme Court could agree that the Chemical Weapons Convention generally addressed a matter of international concern, even if they also agreed that the prosecution of Ms. Bond did not. Nor are these understandings fixed; issues need not be “purely” domestic (or international) for all time. Some topics such as human rights were once understood by States (and the President and the Senate) to be inappropriate subjects for treaty-making, but are now believed to be an essential aspect of international relations. Other topics such as Native American relations were once subject to extensive treaty treatment, but are now no longer accepted as appropriate subjects for U.S. treaties.

This article thus answers one of the longest running questions of U.S. foreign relations law. It confirms the existence of an international concern test, but locates its operation within the treaty process rather than in an externally-imposed laundry list of topics or criteria. In doing so, it provides an explanatory lens for a U.S. treaty practice that many label incoherent and suggests a need for more research on what conditions generate intersubjectivity (or its absence).

This is part of the outstanding Notre Dame Law Review symposium on Bond v. United States.  My contribution is here.


Josh Blackman: The Constitutionality of DAPA Part II
Michael Ramsey

Josh Blackman (South Texas College of Law) has posted The Constitutionality of DAPA Part II: Faithfully Executing the Law  on SSRN. Here is the abstract:

Article II imposes a duty on the President unlike any other in the Constitution: he “shall take Care that the Laws be faithfully executed.” More precisely, it imposes four distinct but interconnected duties. First, the imperative “shall” commands the president to execute the laws. Second, in doing so the President must act with “care.” Third, the object of that duty is “the Laws” enacted by Congress. Fourth, in executing the laws with care, the President must act in good “faith.” A careful examination of the four elements of the “Take Care” clause provides a comprehensive framework to determine whether the Executive has complied with his constitutional duty. This article assesses the constitutionality of President Obama's “Deferred Action for Parental Accountability” (DAPA) on immigration through this lens of the “Take Care” clause.

First, DAPA is an extremely “broad policy” that was “consciously and expressly adopted” not as a means to enforce the laws of Congress, but to exempt nearly 40% of undocumented aliens in the United States-even those who were not previously subject to any previous enforcement action-from the threat of removal, and to provide them with work authorization. Second, DAPA was implemented without “care” for the immigration laws as it displaced officer discretion, both procedurally and substantively, with the Secretary's blanket policy to turn meaningful review into a “rubber stamp.”

Third, DAPA finds refuge in none of the three tiers identified in Justice Jackson's opinion Youngstown. Congress has and continues to oppose the scope of this executive action. Further, DAPA is not consonant with long-standing congressional policy towards deferred action. Previous uses were typically ancillary to statutory grants of lawful status or responsive to extraordinary equities on a very limited scale. In this bottom rung of authority, presidential power is at its “lowest ebb,” unentitled to a presumption of constitutionality. Fourth DAPA was not a good faith mistake of law, but a bad faith deliberate deviation. Implementing executive action to achieve several of the key statutory goals of laws Congress voted against reflects a deliberate attempt to circumnavigate around an uncooperative legislature. Exacerbating this conclusion is the fact that prior to the defeats of DACA and DAPA, the “sole organ” of the Executive Branch consistently stated that he lacked the power to defer the deportations of millions by himself.

This pattern of behavior amounts to a deliberate effort to act not in good faith, but in an effort to undermine the Laws of Congress. The duty under Article II has been violated.

Part I of this series addresses whether Congress has acquiesced to deferred action. Josh Blackman, The Constitutionality of DAPA Part I: Congressional Acquiescence to Deferred Action, 103 Georgetown Law Journal Online __ (Forthcoming 2015), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2545544


Ed Whelan (and others) on Rand Paul on Judicial Activism
Michael Ramsey

At NRO, Ed Whelan: Rand Paul Is Wrong: Judicial Restraint Is Right (criticizing this speech by Senator Paul to the Heritage Foundation [C-SPAN video and transcript]; Josh Blackman has a more readable "unofficial" transcript here).  Plus more from Ed Whelan: The Libertarian Choice:

Contra Rand Paul, the Big Question in constitutional interpretation is not judicial restraint versus judicial activism. It’s originalism versus non-originalism (whether the “living Constitution,” pragmatism, or any other stripe). It’s Paul’s confusion on that point that makes him—who touts himself as “100% pro-life” and who has introduced a bill that “would extend the Constitutional protection of life to the unborn from the time of conception”—suddenly unable even to say that Roe v. Wade was wrongly decided.

For those libertarians, like Randy Barnett, who embrace originalism, judicial conservatives are their natural allies. To be sure, libertarians and judicial conservatives will often have different reads on what originalism yields, but they will be in productive conversation with each other and will recognize that they share the same opponents. Most judicial conservatives are very sympathetic to the small-government cause and will be open to exploring libertarian originalist arguments for it.

More from Evan Bernick:  Rand Paul Is Right: Judicial Restraint Is Wrong; and Matthew Franck: Judicial Restraint, (At Least) As Old as Judicial Review Itself.

To repeat and expand some points I have made before:

(1) I do not agree with Ed Whelan's insistence (in the first post) that it's useful to define "judicial activism" as decisions departing from the Constitution's original meaning and "judicial restraint" as decisions following the original meaning.  This approach conflates two distinct dimensions of judicial decisionmaking: (1) should a court follow the original meaning? and (2) should a court intervene aggressively against the political branches?  It's possible to be a restrained originalist (that is, someone who would intervene against the political branches rarely and only when the Constitution's original meaning is clear -- John Roberts, perhaps) or an activist originalist (who would intervene against the political branches frequently under contested views of the original meaning -- Randy Barnett, for example). Similarly, one could be a restrained nonoriginalist (Felix Frankfurter; perhaps Jeff Rosen) or an activist nonoriginalist (gee, quite few possible examples here).  Oversimplifying, you could think of it as a four-box matrix.  In any event, trying to flatten it onto a one-dimensional line is not helpful.

(2)  That said, I agree with Ed Whelan's criticism of Senator Paul to this extent: Senator Paul's presentation is insightful and sophisticated, especially for a Senator, but it too is a bit one-dimensional.  It sees the debate only in terms of how much one intervenes against the political branches.  It would be a richer analysis if he thought about how originalism fits into the decisionmaking (or, at least, if he made clear when he thinks judicial intervention is appropriate and when not).  Activism and restraint (in my definitions of them, and I think also in Senator Paul's) are not interpretive theories; they are measures of aggressiveness.  Whether aggressive or passive, a judge needs a theory of when to act or not act (unless the judge is always going to intervene or never intervene, neither of which are realistic).

(3) I agree with Matthew Franck to this extent: claims of judicial restraint are as old as judicial review.  Whether there is a corresponding practice is another question.  Just considering Marbury, one might well think that there is reasonable disagreement on, at minimum: (a) whether Marbury's right to his office vested upon the President signing his commission rather than upon the commission being delivered; (b) whether Article III, Section 2's list of the Supreme Court's original jurisdiction is exclusive, given that the text says the Court "shall" have original jurisdiction in certain matters but does not say it shall have original jurisdiction in only those matters; and (c) whether it is appropriate for a court that decides it does not have jurisdiction to nonetheless opine on the constitutional questions it lacks jurisdiction to answer.  In this light, Marbury does not look especially restrained, whatever Marshall and other judges may have (understandably) claimed about the judicial role.  (Note, though, to say Marbury isn't restrained is not to say it isn't originalist; actually I think Marbury is a pretty good originalist opinion).

Anita Krishnakumar: Dueling Canons
Michael Ramsey

Anita Krishnakumar (St. John's University - School of Law) has posted Dueling Canons on SSRN. Here is the abstract: 

This Article offers the first targeted study of the Supreme Court’s use of the canons and other tools of statutory interpretation in a “dueling” manner — i.e., to support opposing outcomes in both the majority and dissenting opinions in the same case. Taking its inspiration from Karl Llewellyn’s celebrated list of canons and counter-canons, the Article seeks to examine how often and in what ways the members of the Roberts Court counter each other’s references to particular interpretive tools when disagreeing about the proper reading of a statute.

Many of the Article’s findings are unexpected and undermine the assumptions made by some of the most prominent theories of statutory interpretation. Textualists, for example, long have urged the rejection of interpretive tools such as legislative history, statutory purpose, and congressional intent on the ground that such tools are indeterminate and can be manipulated to support almost any statutory construction favored by the judge. Moreover, textualists have advocated the use of other interpretive tools — e.g., statutory text / the plain meaning rule, the whole act rule, language canons, other statutes — on the theory that these tools are neutral and will constrain judges to reach the correct or “best” reading of the statute. But the data from the Roberts Court’s dueling canon cases reveals that many of textualism’s most-favored interpretive tools are at least as susceptible to dueling use as the tools that textualists love to denigrate. The study shows, for example, that the justices duel extensively over the meaning of statutory text but duel at low, virtually identical, rates over legislative history, purpose, intent, dictionary references, the whole act rule and language canons.

The study also reveals some unsurprising data. For example, the canons do not seem capable of constraining the judges to vote against ideology. And non-canon tools of analysis, including precedent and practical consequences reasoning, lead to higher rates of dueling than do most traditional canons or tools of statutory interpretation. After reporting the data, this Article examines the theoretical implications of the justices’ relatively infrequent, though ideologically-slanted, dueling canon use.


Curtis Bradley & Neil Siegel: Historical Practice, Textual Ambiguity, and Constitutional Adverse Possession
Michael Ramsey

Curtis Bradley (Duke University - School of Law) and Neil Siegel (Duke University - School of Law) have posted After Recess: Historical Practice, Textual Ambiguity, and Constitutional Adverse Possession (Supreme Court Review, Forthcoming) on SSRN. Here is the abstract: 

The Supreme Court’s interpretation of the Recess Appointments Clause in NLRB v. Noel Canning stands as one of the Supreme Court’s most significant endorsements of the relevance of “historical gloss” to the interpretation of the separation of powers. This Article uses the decision as a vehicle for examining the relationship between interpretive methodology and historical practice, and between historical practice and textual ambiguity. As the Article explains, Noel Canning exemplifies how the constitutional text, perceptions about clarity or ambiguity, and “extra-textual” considerations such as historical practice operate interactively rather than as separate elements of interpretation. The decision also provides a useful entry point into critically analyzing the concept of constitutional “liquidation,” which the majority in Noel Canning seemed to conflate with historical gloss but which seems more consistent with the approach to historical practice reflected in Justice Scalia’s concurrence in the judgment. Finally, this Article argues that the historical gloss approach, when applied cautiously and with sensitivity to the potential concerns raised by Justice Scalia and others, is not vulnerable to the charge of licensing executive aggrandizement by “adverse possession.”


Randy Barnett on Executive Enforcement Discretion
Michael Ramsey

At Volokh Conspiracy, Randy Barnett: The President’s Duty of Good Faith Performance.  This is a long, insightful post that is hard to capture in a quick excerpt, but the basic idea is that the President's constitutional duty of faithful execution can be analogized to a contract party's duty of good faith performance: 

What distinguishes good faith from bad faith performance of a contract is not the exercise of discretion but is the motive or purpose for which discretion is exercised. Does the party exercising its discretion under the contract seek to exercise the letter of the contract (the discretion) to evade its spirit (the rest of the commitment)? More concretely, does it seek to gain the benefit of the contract (the store lease) while using the discretion granted by the contract to evade the cost of entering into the contract (paying the percentage of sales as rent). In this way, the doctrine of good faith performance is not a restriction on the freedom of contract, but is instead a means of enforcing the actual terms of the contract where discretion is allowed. But is this theory applicable to the President of the United States?

At this point, the text of the Take Care Clause struck me: the President “shall take Care that the Laws be faithfully executed. . . .” There it was right in the text of the Constitution: the president’s duty of good faith performance. True, I do not view the Constitution as a literal contract. But like a contract, the Constitution is a writing that must be interpreted and applied. And the President is supposed to be the agent of the people. He consents to take an oath to obey “this Constitution,” the written one. Under the terms of this Constitution, the President owes a duty or “shall” take care that the laws be “faithfully” executed. Although this duty inevitably requires the exercise of discretion, like any other agent, the President owes his principal — the People — a duty of good faith in the exercise of this discretion.

According to this theory of good faith performance, “scarcity of enforcement resources” is an appropriate motive for exercising prosecutorial discretion, but disagreement with the law being enforced is not. The same holds true with exercising prosecutorial discretion to enforce marijuana laws in states that have made it legal under state law. Prioritizing seriousness of offenses is one thing; disagreeing with the policy of the Controlled Substances Act (as I do) is another.

But how do you tell the difference? Here is where the President’s previous statements about the scope of his powers, about his legislative priorities, and his frustration with Congress’s “inaction” become legally relevant. His prior statements go to the President’s state of mind or motive, which is dispositive of the issue of “good faith.” If the President believed that the law precluded these actions but he was exercising the discretion he was given under the law to accomplish them nonetheless, he was abusing his discretion and acting in bad faith. Whether or not the law gave him discretion is not the answer to the question, it is the problem that a doctrine of good faith performance is devised to address.

RELATED: Josh Blackman describes the amicus brief he joined (with the Cato Institute and other law professors) supporting Texas' challenge to the deferred immigration enforcement.


A Good Day for Justice Scalia
Michael Ramsey

Two unanimous textualist opinions announced by Justice Scalia today: Whitfield v. United States (holding that the phrase "to accompany" someone in the federal bank robbery statute means "to go with" someone, without any added connotation of going a substantial distance) and Jesinoski v. Countrywide Home Loans Inc. (holding that "to rescind" in the federal Truth in Lending Act means to notify the lender of the decision to rescind, not to file suit to judicially enforce the notice of rescission).

Whitfield is notable on two grounds.  First, the opinion specifically considers the meaning of "to accompany" at the time the statute was enacted (1934) [more stautory originalism!] and second it rejects a fairly plausible policy argument that Congress was only concerned about accompanying a substantial distance.  As to the second point, the statute provides an enhanced punishment for bank robbers who force someone "to accompany" them in the course of the robbery.  Apparently the impetus (or an impetus) was bank robber John Dilllenger's practice of escaping the crime scene with hostages.  As Justice Scalia himself said at oral argument, it is a little odd to greatly enhance punishment for someone (like Whitfield) who only forced his victim "to accompany" him from one room of a house to another.  So one could pretty easily say that Congress really only wanted to enhance punishment for, in effect, kidnapping in the course of a robbery.

But I think the case shows how textualism is more likely to produce agreement than speculating about Congress' true intent.  As Scalia's (short!) opinion make clear, it's fairly obvious what "to accompany" means, including that you can "accompany" someone to the next room.  On the other hand, even if Congress in 1934 was principally concerned with John Dillenger, it's no more than speculation to try to decide whether Congress would have wanted to punish only Dillenger-style tactics or would have thought any forced movement (even if less that what Dillenger practiced) deserved enhanced punishment.  And matters of speculation are less likely to produce consensus.

(Via Josh Blackman, who has more, including applause for Scalia's selection of sources).

Brian Leiter: Constitutional Law, Moral Judgment, and the Supreme Court as Super-Legislature
Michael Ramsey

Brian Leiter (University of Chicago) has posted Constitutional Law, Moral Judgment, and the Supreme Court as Super-Legislature on SSRN.  Here is the abstract: 

I defend and explore three claims in this lecture. First, there is very little actual “law” in federal constitutional law in the United States, especially with respect to cases that end up at the U.S. Supreme Court: there, the Court operates as a kind of super-legislature, albeit one with a limited jurisdiction, essentially making decisions based on the moral and political values of the justices, and not on the basis of legally binding standards. This is, in part, a jurisprudential thesis about what counts as “legally binding standards,” one that I shall defend by reference to the most plausible account of the nature of law, the legal positivist theory developed by H.L.A. Hart and Joseph Raz. Second, the absence of law in so many parts of federal constitutional law means that the quality of moral and political judgment exercised by judges is of decisive importance in how they fulfill their role and thus should be the overriding factor in the appointment of federal appellate judges, especially Supreme Court Justices. That brings me to my third claim, namely, that all political actors know that the U.S. Supreme Court often operates as a super-legislature, and thus that the moral and political views of the Justices are decisive criteria for their appointment. This almost banal truth is, however, rarely discussed in the public confirmation process, but is common knowledge among political and legal insiders. To be sure there is media speculation about the political predilections of the nominees, but their actual moral and political views are treated as off limits in the real confirmation process. This anti-democratic secrecy is, in my view, deeply wrong and must be replaced with a realistic acknowledgment of the role of the Supreme Court as a political actor of limited jurisdiction. I will illustrate these claims by discussing a number of important public law cases, recent and not-so-recent, including New York v. U.S., Heller, Hobby Lobby, Shelby County, and others.

Note: This is the text of the 24th Mathew O. Tobriner Memorial Lecture in Constitutional Law to be presented at the University of California Hastings College of the Law, San Francisco, January 12, 2015.

Assuming the description is right, a question it prompts is whether there is any way to introduce more "legally binding standards" into constitutional law.  I take it that the originalism project is, in many people's minds anyway, an attempt in that direction.



Daniel Rice: Territorial Annexation as a 'Great Power' (UPDATED)
Michael Ramsey

Daniel Rice (Duke Law School, J.D. '15) has posted Territorial Annexation as a 'Great Power' (Duke Law Journal, Vol. 64, No. 4, 2015) on SSRN. Here is the abstract: 

The Roberts Court has recently begun reviving a long-latent structural constitutional principle — that some unenumerated powers are too important to be inferred through the Necessary and Proper Clause. Under this abstractly sensible theory, some powers are too “great” to have been conferred by implication alone. This structural logic seems poised to command majority holdings in the Supreme Court. But it is largely unclear what results so undertheorized a concept might dictate. Now is the time to survey the domain of “great powers” in service of developing an appropriately modest and judicially enforceable great-powers doctrine.

This Note argues that a power to annex foreign territory is too important to be inferred through the Necessary and Proper Clause. Because the Constitution does not enumerate a territorial-acquisition power, Congress therefore disregarded great-powers limitations in annexing Texas and Hawaii through joint resolution. Congressional Globe debates from 1845 reveal that opponents of annexing Texas boldly anticipated this very argument. This Note explores their forgotten constitutional claim in the course of highlighting annexation’s historical pedigree as a great power.

Rethinking the constitutional basis for territorial expansion demonstrates that judges cannot apply great-powers principles consistently. And previously overlooked congressional annexation rhetoric supplies fresh diagnostic tools for identifying other great powers, allowing scholars to escape deceptively stale search terms. In fact, this Note marks the first attempt to identify a federal statute struck down on great-powers grounds: the Court’s decision in Afroyim v. Rusk can be fairly read as holding that involuntary expatriation is too important a power to be inferred through the Necessary and Proper Clause.

Will Baude, call your office...

But actually, I don't see this as a "gotcha" against the great powers theory.  I entirely agree with the article's main premise.  Quite plausibly, the Texas and Hawaii annexations were unconstitutional, for the reasons it states.  That doesn't mean that the United States cannot annex territory; it can (contra Jefferson) do so by treaty.  [As I have argued, the treatymaking power is not limited to Congress' enumerated powers].  President Tyler originally tried to annex Texas by treaty, and it was switched to a joint congressional resolution only after it became clear that two-thirds of the Senate would not approve.  Hawaii simply followed the (dubious) Texas precedent.  But it makes sense, with a power as connected to national identity as annexation, that a two-thirds approval be required.

UPDATE:  On reflection, I see that my comment above could be taken as criticizing the article, but it was not intended that way.  It's an excellent article, and among other things it makes that point that annexation can likely be done through the treaty power.  I entirely agree with its discussion of the annexation issue.  If I have any disagreement with it, it's with the implication (which perhaps I am imagining) that Congress' apparent lack of annexation power under the "great powers" theory is a problem for the great powers theory.

As a further aside: If indeed Congress lacked annexation power as an original matter, the Texas/Hawaii episodes might form an example of a non-judicial precedent which some originalists (possibly including me) would now find binding.  But (consistent with this article) I would limit the force of the precedent just to annexation (or just to absorption of an entire country) and would not regard it as displacing the entire great powers theory.


Gregory Brazeal: Constitutional Fundamentalism
Michael Ramsey

Gregory Brazeal (U.S. Army JAG Corps) has posted Constitutional Fundamentalism on SSRN. Here is the abstract: 

There is widespread agreement that judges’ and legal scholars’ interpretations of the Constitution should be based on what the Constitution means, not what the interpreter believes it should mean. There is equally widespread agreement that this principle is more honored in the breach than the observance. 

This Article offers a novel account of the pervasive role of ideological bias in constitutional adjudication and legal scholarship based on a reconception of the nature of legal discourse. The argument begins by drawing an analogy between the way we talk about religious belief and the way we talk about legal discourse. As Wittgenstein observed, it is easy to be misled by the appearance of expressions of religious belief into concluding that religious belief must be seen as no different from scientific belief. Expressions of faith and statements of scientific fact appear structurally identical. In fact, however, attention to the context surrounding statements of religious belief suggests that they may be seen as belonging to a different social practice governed by different norms from those governing scientific belief.

Something similar can be said of legal discourse, including interpretations of the Constitution. Statements of the law made by legal actors are usually phrased as purely descriptive statements of what the law is. Viewed in isolation, these statements appear to be no different from statements of scientific fact. Attention to the context surrounding legal actors’ statements of the law suggests, however, that legal discourse may be seen as governed by different norms from those governing purely descriptive scholarly or scientific analysis. Legal discourse, including constitutional argument, can be seen as partly defined by the blending of descriptive (“positive”) reasoning about what the law is with prescriptive (“normative”) reasoning about what the law ought to be. To reach a legal conclusion based on a blend of descriptive and prescriptive reasoning, and to phrase this conclusion as purely descriptive, as legal actors habitually do, is not to violate the rules of legal discourse, but to abide by them.

Moreover, just as we can distinguish at least three attitudes toward a religious belief — fundamentalism, atheism, and non-fundamentalist faith — so we can distinguish at least three analogous attitudes toward a legal claim, including a legal interpretation of the Constitution’s meaning. Fundamentalism is the most frequent stance among constitutional theorists. Jack Balkin’s Constitutional Redemption illustrates the often neglected possibility of a non-fundamentalist constitutional faith.


Will Baude on the Raisin Taking Case
Michael Ramsey

At Volokh Conspiracy, Will Baude comments on Horne v. Department of Agriculture (the raisin takings case): If this isn’t a taking, what is? and Will the Supreme Court summarily reverse the raisins case?   As Professor Baude explains:

The raisin regulations require raisin producers to reserve a portion of their crop to be sold by the government; the government determines both the portion and the price, which it sometimes sets to be basically zero. The Hornes argued that these regulations are a taking of the raisins, and that they are therefore entitled to a determination about whether the government’s chosen compensation is “just compensation” within the meaning of the Takings Clause.

Normally, when the government takes your property away from you, as opposed to regulating it, that’s a taking. I take it that if the government told me to set aside part of my land and forced me to get rid of it for a government-determined price, that would be a taking. But the Ninth Circuit concluded that wasn’t true of the raisins for two reasons — first, because they were personal property rather than real property, and second because they did not lost all of their rights in the raisins, since they “retain the right to the proceeds of their sale.”

The case is pending on petition for writ of cretiorari, with an excellent (short) amicus brief by Professors Ely, Kochan, Mossoff and Somin. Unsurprisingly, they find powerful originalist evidence that the clause fully protects (as its text indicates) to all "private property," not just just real property.


Habeas Corpus as a Power Implied by the Suspension Clause
Andrew Hyman

Article I, Section 9, Clause 2 of the Constitution says: "The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it."  Many authors have observed that this clause is phrased negatively, rather than affirmatively guaranteeing either the privilege or guaranteeing a congressional power to suspend the privilege.  The question is: why was it phrased negatively?  The answer says a lot about how Congress can regulate the writ, and what the Clause means.

Back in 2013, this blog highlighted an article by Professor Lee Kovarskyon this subject, and so you might consider this blog post as a late response.  I agree with Professor Kovarsky, and others, that there is something fishy in the notion that the writ of habeas corpus never would have taken hold in the federal courts but for the affirmative guarantee of the writ in Section Fourteen of the Judiciary Act of 1789.  There is a big problem with that notion, despite its noble lineage tracing back at least to Chief Justice Marshall's opinion in Ex Parte Bollman (1807), and echoed by Justice Story’s opinion in Prigg v. Pennsylvania (1842).  First of all, it is problematic to suggest that part of the 1789 statute essentially became unrepealable immediately upon passage, and that future congresses became bound to obey the First Congress to some extent, and bound to obey any prior congresses that expanded the writ.   It may be possible to read Marshall and Story in a way that avoids these problems, but it’s not easy.  More recently, the Supreme Court has apparently abandoned the notion that Congress must establish the writ before it can be judicially implemented; prior to the case of Boumediene v. Bush (2008), Congress had never (as far as I know) extended the writ to aliens abroad, although it had established a procedure for executive branch review of their status.  Whatever else may have been messed up about the Boumediene decision, I think its recognition of an implied constitutional privilege of habeas corpus was correct. 

Incidentally, I like this quote from Justice Johnson’s dissent in Bollman: “Strange indeed would be the doctrine that an inadvertency once committed by a court shall ever after impose on it the necessity of persisting in its error. A case that cannot be tested by principle is not law, and in a thousand instances have such cases been declared so by courts of justice.”  If the Court in that case was suggesting that Congress can bind future congresses to a particular vision of habeas corpus, then that was surely an inadvertent error.

Despite my agreement with Professor Kovarsky about the impact of Section 14 of the Judiciary Act, I doubt that he is correct that power to issue the writ of habeas corpus is an inherent Article III power that would exist regardless of the Suspension Clause.  In my view, that theory opens a big can of worms, and raises many unnecessary questions.  What other writs would likewise be inherent in judicial power?  Why did so many state constitutions in the 1780s explicitly and affirmatively provide for the writ if it was considered just as inherent as the power of a judge to silence outbursts in court?

I suspect that federal judges probably do have some constitutional power to issue the writ of habeas corpus even absent federal statutory authority, based not upon a nebulous doctrine of inherent powers, but rather based upon the direct implications of the Suspension Clause.  The Suspension Clause is likewise the source of an implied power of Congress to suspend the writ under the named conditions. 

The power implied by the Suspension Clause for federal judges to issue writs of habeas corpus has limits, of course.  But the power is clearly implied because the absence of it would have suspended the writ; the writ had previously existed for all people arrested in the United States, and denial of the writ would have suspended it.  The limits upon an implied power of habeas corpus must include these: (1) the prisoner or someone acting in his behalf has to request the writ; (2) the prisoner is in federal custody within the geographic jurisdiction of the federal court; (3) Congress has not validly suspended the writ; (4) the prisoner has not already obtained the full benefit of the writ with regard to his current imprisonment; (5) neither congress nor the judiciary have assigned the task of issuing the writ to other judges instead, such as federal appeals court judges or state court judges having concurrent jurisdiction; and (6) any further reasonable regulations by Congress are followed in keeping with the common law right as understood in 1789.  All of these limitations upon the writ were very likely considered essential in 1789, both before and after the Judiciary Act was passed.  If all the pertinent limitations are satisfied, then a refusal by a federal district court judge to grant the writ would be tantamount to a suspension of habeas corpus in violation of Article I, Section 9, Clause 2 − even without a word about habeas corpus in federal statutes.

True, the Suspension Clause is located in Article I rather than Article III.  However, that is likely because everyone already recognized that issuance of the writ is a judicial function, whereas power to suspend the writ might otherwise have been more plausibly claimed by the President than by Congress.

A draft of the Suspension Clause expressly and affirmatively guaranteed the writ: "The privileges and benefit of the writ of habeas corpus shall be enjoyed in this government in the most expeditious and ample manner: and shall not be suspended by the Legislature except upon the most urgent and pressing occasions...."  Several state ratifying conventions later suggested similar language.  There are a slew of reasons why those proposals did not succeed, and none of the following reasons indicate that action by Congress was considered necessary for the writ to exist.  First, an affirmative guarantee was considered unnecessary and superfluous.  Second, placing such affirmative language in Article I would have suggested that some action by the legislative branch might be needed not just to suspend the writ but also to initiate and maintain it.  Third, an affirmative constitutional guarantee of the writ could have jeopardized at least some of the six limitations listed above regarding implied judicial power.  And, fourth, an affirmative constitutional guarantee of the writ, such as the draft provision quoted above, would have suggested that the writ only has to be available in federal court, whereas framers like Roger Sherman anticipated that, “the constitution does not make it necessary that any inferior tribunals should be instituted, but it may be done if found necessary; 'tis probable that courts of particular states will be authorized by the laws of the union, as has heretofore been done in cases of piracy, &c….” 

Incidentally, Professor Kovarsky has a new article that came out in April of last year, discussing the impact of the Privileges or Immunities Clause upon the writ of habeas corpus, following adoption of the Fourteenth Amendment in 1868.  As with his theory about inherent judicial power to grant the writ under the original Constitution of the 1780s, I think this new theory is interesting but not well-supported by the text and original meaning.  But that’s another story.

Myron Steele & Peter Tsoflias: Realigning the Constitutional Pendulum
Michael Ramsey

Myron Steele (Government of the State of Delaware - Supreme Court of Delaware) and Peter Tsoflias (Widener University - School of Law) have posted Realigning the Constitutional Pendulum (Albany Law Review (2014)) on SSRN. Here is the abstract: 

The United States Constitution — an instrument modeled after state constitutions — uniquely creates a federal government of limited and enumerated powers, leaving general police power to the individual states. This governmental framework, if properly carried out, strikes the appropriate balance of power. With the federal government supervising matters of national concern, states are able to respond effectively and efficiently to local problems. What’s more, this system of government suitably promotes state experimentation — a necessary ingredient to economic and social amelioration. In this article, we argue that federal courts, through their broad interpretation of the federal Constitution, have deleteriously altered this power equilibrium. We refer to this equilibrium as the “constitutional pendulum,” and with each broad federal constitutional interpretation, the constitutional pendulum becomes misaligned.

We begin by briefly discussing the key components of the federal constitutional framework and the benefits of state experimentation. We then highlight some of the ways in which states, through their individual constitutions, have benefited from this system of government. Next, we argue that a broad interpretation of certain federal constitutional provisions improperly shifts power to the federal government, thereby stifling state innovation. We posit that more narrowly interpreting the federal Constitution swings the constitutional pendulum back to its rightful place, distributing power appropriately between state and federal government. To illuminate this point, we analyze a recent Third Circuit decision (decided by a divided three judge panel) interpreting (albeit incorrectly) the United States Constitution’s First Amendment’s right of public access: Delaware Coalition for Open Government, Inc. v. Strine.


Josh Blackman: Congressional Acquiescence to Deferred Action
Michael Ramsey

Josh Blackman (South Texas College of Law) has posted The Constitutionality of DAPA Part I: Congressional Acquiescence to Deferred Action (103 Georgetown Law Journal Online (2015 Forthcoming)) on SSRN. Here is the abstract: 

On November 19, 2014, the Department of Justice's Office of Legal Counsel issued an opinion entitled The Department of Homeland Security's Authority to Prioritize Removal of Certain Aliens Unlawfully Present in the United States and to Defer Removal of Others. The opinion justified new initiatives by the Department of Homeland Security, first, dealing with the prioritization of removal for certain categories of alien unlawfully present in the United States, and second, establishing a deferred action program for the parents of U.S. citizen or lawful permanent resident children. OLC's opinion is of great practical importance for both general and specific reasons.

As a general matter, the framework it instituted for gauging whether a particular exercise of enforcement discretion is consistent with relevant constitutional principles is likely to have continuing importance in all the varied areas where administrative agencies and the Executive exercise such discretion. As a specific matter, it seeks to place the Obama Administration's immigration initiatives on firm legal footing by justifying those broad programs as valid exercises of enforcement discretion.

The opinion founders, however, on the complexities of immigration law, and thus its specific application of the opinion's framework to the Executive's initiatives is ultimately unconvincing. The opinion overstates the degree to which the Immigration and Nationality Act ("INA") is concerned with family unification, misapprehends the extraordinarily narrow scope of relief provided to the parents of U.S. citizen and lawful permanent resident children under existing law, and misstates the limited scope of prior Congressional acquiescence to deferred action programs. These flaws undercut the opinion's key conclusion that DHS's deferred action programs are consistent with Congressional policy, and thus also place into question the ultimate judgment that these initiatives are permissible exercises of enforcement discretion.

Part I reviews the two most recent discretionary initiatives, mainly focusing on the so-called Deferred Action for Parental Accountability initiative ("DAPA"). Part II turns to OLC's opinion on the legality of DAPA, analyzing its conclusion that DAPA is consistent with Congressional policy. First OLC contends that DAPA is an extension of Congressional policy towards family unity. Second OLC explains that Congress's past acquiescence in or extension of administrative deferred action initiatives supports DAPA. Both propositions are premised on misleadingly superficial readings of Congressional policy in this realm, and fail to justify DAPA.

Part III critiques OLC's conclusion on these points, while placing the all-important flesh on the skeletal version of immigration law contained in that opinion. Previous instances of deferred action exhibit two currents: (1) the alien has an existing lawful presence, or (2) the alien has the immediate prospect of lawful residence or presence. For each, deferred action acted as a temporary bridge from one status to another, where benefits were construed as immediately arising post-deferred action. These threads bring the deferred action within the ambit of Congressional policy embodied inside the INA. However, neither principle holds true to the DAPA. With DAPA, deferred action serves not as a bridge for beneficiaries between two approved statuses, but as a tunnel to dig under and through the INA. 

Upon full consideration of the relevant provisions of the INA, including their history and the exact extent of the relief offered, it becomes apparent that DAPA does represent a fundamental rewrite of the immigration laws that is inconsistent with the Congressional policy currently embodied in the INA. To the extent that DAPA's constitutionality rests on congressional acquiescence, OLC has failed to carry this burden.

This article's scope is narrow and means to address only the question of whether or to what extent deferred action for the parents of U.S. citizen and lawful permanent resident children is consistent with Congressional policy as currently embodied by the INA. The second part of this series will consider whether the President complied with the "Take Care" clause. See Josh Blackman, The Constitutionality of DAPA Part II: Faithfully Executing The Law, 19 Tex. R. of Law & Pol. __ (2015 Forthcoming).


William Baude: State Regulation and the Necessary and Proper Clause
Michael Ramsey

William Baude (University of Chicago Law School) has posted State Regulation and the Necessary and Proper Clause (Case Western Reserve Law Review, Vol. 65, 2015) on SSRN. Here is the abstract: 

The new marijuana federalism is here, but is it here to stay? This paper worries about that question by way of two related points, a practical one and a technical one, to ultimately argue that states should have a bigger role in defining the limits of federal constitutional power.

The practical point is that the current regime of state marijuana legalization is unstable, and it is a miracle that it is working as well as it is. Because marijuana remains contraband at the federal level, businesses and lawmakers who invest in responsible legalization at the state level have no guarantee their investments are safe from the whims of federal law enforcement. Moreover, even if the federal drug laws are not actively enforced in those states, the laws create serious problems for banks, lawyers, and others who might otherwise want to work with the in-state marijuana industry.

The technical point is that this instability can be traced to an importantly erroneous footnote in the Supreme Court’s recent decision in Gonzales v. Raich. Footnote 38 claims that state law can never be relevant to the scope of Congress’s power under the Commerce Clause or the Necessary and Proper Clause. That conclusion is wrong, is not required by the rest of the Court’s enumerated powers jurisprudence, and should be cast aside.

In this piece, I’ll argue that the Necessary and Proper Clause should be interpreted to give states a bigger role in defining when the federal drug laws are constitutional. Congress’s power to reach purely in-state conduct is premised on the possibility of interstate spillovers. If a state legalizes and regulates a drug in a way that minimizes the risk of spillovers into the interstate black market, the federal drug laws should be forbidden to apply within that state. This both creates a more stable set of incentives for states to responsibly manage local behavior, and provides a more satisfactory formal grounding for the executive non-enforcement policy.

I especially agree with the point in the third paragraph of the abstract, which is relevant to my draft paper on Congress' power to implement treaties. (Briefly, I argue in part II.B of that paper that Congress' power to implement a treaty under the necessary and proper clause, in  areas of traditional state regulation, depends on some showing that the states are unable or unwilling to implement the treaty themselves).


Josh Blackman on Executive Non-Enforcement and the Text of the Take Care Clause
Michael Ramsey

At Josh Blackman's Blog, The Text of the “Take Care” Clause.  Key conclusion:

With this selection of “faithful” [in the take care clause], the framers adopted a standard well known in the common law of contracts—one of good faith. The Constitution did not include language such as “shall think proper,” which would suggest a subjective good faith standard, based on how the President envisages his own independent duty to execute the law. Rather, the duty was pegged to the “Laws” of Congress, preferring an objective good faith standard based on what Congress would want the President to do in such a situation.

In this sense, akin to the law of agency, the President serves as a “faithful” agent to Congress, and to the people, the ultimate sovereigns, and residual of all legitimate governance. The people elect Congress to write the laws, and choose the President to enforce the laws on their behalf. Viewed this way, the Take Care clause is indeed the fulcrum that holds together our entire system of governance. The President always has an independent constitutional duty to not obey unconstitutional laws. But he must remain a faithful steward of the laws of Congress, and cannot shirk that duty when he disagrees with them.


Due to the unavoidable dilemma of inadequate resources, even in good faith, the President will not be able to enforce all of the laws. Within that framework, the President can decide to allocate priorities. However, deliberately declining to enforce the laws, as a means to bypass laws the Executive dislikes, and Congress will not change, is not in good faith. To ascertain the state-of-mind of the President, the “sole organ” of the Executive branch, a careful study should be made of all official, and unofficial administration statements, particularly if they are against interest. If a pattern of behavior reveals a deliberate effort to act not in good faith, but in an effort to sabotage or undermine the Laws of Congress, the duty under Article II has been violated. Here, the President has dislodged Article II’s fulcrum, knocking out of orbit this fixed star in our constitutional constellation.


Originalism Top Ten of 2014
Michael Ramsey

Continuing a New Year's tradition...

1.  The Supreme Court decides NLRB v. Noel Canning (the recess appointments case), with a fairly non-originalist majority and a strongly originalist 4-Justice concurrence.  A win for originalism? It depends on whom you ask.  Good news: the majority cites the amicus brief of originalist scholars; bad news: it cites the brief as an example of an argument it is rejecting; consolation: Mike Rappaport's 2005 article The Original Meaning of the Recess Appointments Clause is cited multiple times by the concurrence.

2.  The "positive turn" in originalism scholarship takes shape in important papers and commentary by Stephen Sachs (here and here) and Will Baude.  The idea (to oversimplify just a little): originalism is the law.  Mike Rappaport is not persuaded.

3.  The Supreme Court decides Bond v. United States (the chemical weapons case), with the majority avoiding the interesting constitutional questions but with much originalism in concurrences by Justices Scalia and Thomas (most of which I disagree with see here [on Thomas] and here [on Scalia]).

4.  Kurt Lash publishes The Fourteenth Amendment and the Privileges and Immunities of American Citizenship (Cambridge Univ. Press), and blogs about it at Volokh Conspiracy.   Chris Green has a lot to say on this blog in response.

5.  President Obama's decision not to enforce various laws puts the President's non-enforcement discretion at the top of the discussion list, with substantial originalist overtones.  (A sample here, and more here).  (Maybe originalism really is the law).  Zachary Price (rightly) gets some time in the spotlight.

6.  Philip Hamburger publishes Is Administrative Law Unlawful? (Univ. of Chicago Press) and becomes an unlikely media star.  (Adrian Vermeule answers "No.")

7.  Harvard Law School launches a speaker series named after Justice Scalia; Judge Easterbrook is the first speaker.  

8.  Zivotofsky v. Kerry (the Jerusalem passport case, granted review by the Supreme Court in April and argued in November) prompts originalist-oriented commentary from various perspectives, including from  Ryan ScovillemeJack Goldsmith, and (at the National Constitution Center) Eugene Kontorovich and me.

9.  The President orders air strikes against the Islamic State in Iraq and Syria, prompting further discussion of presidential war powers in a very complex context (and here, and even more here, and here -- proving that I am not sure what to think).

10.  Scholars gather in San Diego for USD's  Fifth Annual Hugh and Hazel Darling Foundation conference on originalism works-in-progress; many of the same people reconvene a week later for the Stanford Constitutional Law Center's conference on "The Role of History in Constitutional Law."

Honorable mention:  Leading Canadian originalists Grant Huscroft and Bradley Miller get judicial posts; Will Baude and Eric Posner teach a course on originalism at the University of Chicago Law School and post online back-and-forth commentary; a play called "The Originalist" (about Scalia) is performed; Bruce Allen Murphy's unfavorable biography of Scalia is poorly received (see also here, and also here, and here, and also here -- does this seem like piling on?); the Supreme Court agrees to hear the Arizona redistricting case (asking the meaning of "legislature"); and John Manning publishes The Means of Constitutional Power in the Harvard Law Review, with commentary from Will Baude.