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46 posts from June 2012


Two More Developing Separation-of-Powers Debates
Michael Ramsey

Last week was a big week for separation of powers.  Focus on the President's immigration order has (at least on this blog) overshadowed two other major separation-of-powers debates: the President's claim of executive privilege in response to the House's demand for documents in the "fast and furious" investigation, and a new lawsuit challenging core aspects of the Dodd-Frank financial regulation bill.  So to start this week I'll begin some discussion of these two controversies.

On executive privilege, there has not been much in the way of originalist analysis in the recent debates that I've seen.  (For modern doctrinal analysis critical of the President, see here from John Hinderaker at Powerline).  The question, of course, is whether the President can assert executive privilege to shield Attorney General Eric Holder from a House committee's demand for documents related to executive branch decision making.

Here's my initial intuition: the Constitution's text has nothing to say on this matter.  Any constitutional rule (in an originalist sense) is going to have to come from historical practice of the ratification era and before that was so deeply entrenched as to be necessarily understood as part of the Constitution's basic grants of executive and legislative power.

That formulation puts a heavy burden on Congress.  Where does Congress get the power to order the Attorney General to deliver internal executive branch documents?  (I mean, in a legally significant way).  Of course the House can "order" the Attorney General to deliver the documents, and can "hold him in contempt" if he refuses, to the same extent that the House can "declare" tomorrow "Eric Holder Appreciation Day" (and to the same extent I can do all of those things).  For those pronouncements to have any more legal significance than if I made them, the House must have some constitutional power behind them.

By Article I, Section 7 and the venerable textualist/originalist opinion INS v. Chadha, Congress can change individuals' legal rights only by passing a bill through both Houses and obtaining the President's signature (or, lacking the President's signature, by then obtaining a supermajority vote in Congress).  Unless there is another way for Congress to act in this specific area, not immediately obvious from the Constitution's text, I don't see how a committee of Congress has any legal power to order Mr. Holder to do anything.  And if that is so, focus on the existence-or-not of "executive privilege," as a legal matter, misses the point.

That's not the end of the story, because Congress may have a power that's not textually explicit.  By Article I, Section 1, it has the "legislative Power herein granted."  Could that include the power to order Mr. Holder to deliver documents? Maybe, if it were well established at the time of ratification that legislative bodies (notably, the British parliament) had such a power.  But that is a historical burden Congress would have to carry.  I'm not expressing an opinion here on whether it could -- only framing the issue.  And it's not obvious to me it can be carried.

One further note: it's not clear that cases on the judicial power to order the delivery of executive branch documents (which the post noted above relies on) are on point.  The federal courts' power comes from Article III, Section 1's grant of "the judicial Power."  Although the basic analysis is the same as in respect of Congress, the historical record may be different.  In particular, it seems likely that eighteenth-century courts had power to order the production of documents in connection with judicial proceedings and to hold in contempt those who refused to deliver.  Whether and to what extent eighteenth-century legislatures had a similar power is, at minimum, a different question.

As a result, I start off on the President's side here.  Maybe Congress has a historical basis for a (non-textual) power, but I would need a good bit of evidence in support.  And if Congress lacks power to demand a response in the first place, the President is of course entitled to decline to respond.

On the second issue, the core claim of the suit, filed as State National Bank of Big Springs v. Geithner, is that Dodd-Frank creates an agency (the Consumer Financial Protection Bureau) that does not comport with the Constitution's allocations of executive, legislative and judicial power.  (Powerline's sympathetic analysis is here).  That's probably right as an originalist matter, but this is an area where non-originalist precedent is strong, so the real question (in terms of judicial outcomes) is whether there's a path to begin re-establishing something like the original understanding incrementally, as for example the Court did in the Free Enterprise Fund case from 2010.


Jeffrey Love & Arpit Garg: Presidential Inaction and the Separation of Powers
Michael Ramsey

Jeffrey Love emails:

I just saw your post on President Obama's new immigration policy and presidential refusals to enforce the law. It's a fascinating issue, and, for what it's worth, I just posted a full-length academic treatment of the general subject on SSRN (with a few paragraphs devoted to the current controversy), available here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2088697.

I thought it might be of interest to your readers, as my co-author and I attempt to answer the line-drawing question several of the commentators raised. For us, the key is the baseline set by Congress. If the legislature explicitly removes discretion (as some have argued it did in the case of immigration, though I don't see it in the statute), no amount of separation of powers hand waving could justify prosecutorial discretion.

Most basically, I'd ask Professor Shapiro [Ed.: I think he means Somin] how he thinks the Take Care Clause (and whatever other provisions he thinks apply) would deal with an executive decision to punish anyone who drives 5 miles an hour *under* the speed limit. What is it about the separation of powers that makes a President's refusing to act more an act of constitutional heroism than a decision to impose *extra* sanctions by fiat? Is it that Congress (or the Constitution) implied that the former was okay but not the latter? If so, from where do we get that implication?

(My answer to the questions posed in the last paragraph, if I am understanding it correctly, is that prosecutorial discretion -- that is, the decision not to prosecute for an act covered by a statute -- is a historical aspect of the executive power that an originalist would recognize as granted by the Article II, Section 1 "executive Power."  There's no corresponding aspect of "executive Power" that would even semi-plausibly support the decision to prosecute for an act not covered by a statute.  That doesn't mean that the President's immigration decree is constitutional, but it does make it a closer case than the alternate scenario the paragraph poses).

The very timely article he mentions is Jeffrey A. Love & Arpit K. Garg, Presidential Inaction and the Separation of Powers.  Here is the abstract from SSRN:

James Madison famously articulated a functional account of our governmental structure; he and his Federalist brethren created overlapping authority to prevent any single branch of government from acting unilaterally to dictate policy for the nation as a whole. And for more than two hundred years, the focus has been on just that: action. But the Framers and their intellectual heirs have failed to update their story to account for the government we have. In the modern administrative state, the Executive’s refusal to enforce prior statutes — what we call “presidential inaction” — will often dictate national policy and yet will receive virtually none of Madison’s checks and balances.

This article seeks to re-envision the law and theory of separation of powers by viewing it through the lens of presidential decision-making, rather than the impoverished distinction between action and inaction. In particular, the Article suggests that when the President and his agencies choose not to act pursuant to the legislative will, the Madisonian theory of separation of powers breaks down. For while Congress can use its traditional powers to enforce checks and balances when the President pursues action out of line with its wishes, those tools are simply inadequate when it comes to policing inaction. Moreover, courts have been reluctant to review Executive refusals to act for reasons that will be recognizable to any informed reader. This asymmetry between action and inaction cannot be justified if we are to be faithful to Madison’s notion that inter-branch competition is core to our constitutional regime.

What’s more, the failure of Congress and the courts to police inaction will inevitably bias outcomes toward less government intervention. This is not a partisan argument — on different issues, different parties will be the party of inaction. Refocusing separation of powers to account for inaction would call on Congress to assume the role of robust adversary to the Executive, a role it can assume far better than the Judiciary. Moreover, it would offer new insights on old problems, from administrative deference to federalism to the role of congressional and judicial review.

RELATED:  At Volokh Conspiracy, John Elwood tries to take all the fun out of the debate:

It’s a background principle of administrative law that, “[a]bsent statutory language to the contrary, agencies are free to decide whether to implement a grant of discretion by means of rules, which provide prospective standards of behavior, or by means of case-by-case decisionmaking (or adjudication).” Agency Rules as Constraints on the Exercise of an Agency’s Statutory Discretion, 7 Op. OLC 39, 44 (1983) (AAG Ted Olson); cf. NAACP v. Fed. Power Comm’n, 425 U.S. 662, 668 (1976) (“As a general proposition it is clear that the Commission has the discretion to decide whether to approach these problems through the process of rulemaking, individual adjudication, or a combination of the two procedures.”). So the question then becomes whether the specific provisions of the immigration laws allow the Secretary of Homeland Security to exercise her discretion by rule in this manner.

(His conclusion, after further analysis, is that the answer isn't obvious). 

Meanwhile, at Redstate, Andrew Hyman also reads the statute closely and reaches a more definite conclusion: Krauthammer is Right: The Immigration Edict Is Lawless.


Two Articles on Second Amendment Originalism
Michael Ramsey

Two articles on the Second Amendment, one by David Konig from a while back and one a new draft by Robert Leider, are now on SSRN:

David Konig (Washington University in St. Louis - School of Law) has posted Why the Second Amendment Has a Preamble: Original Public Meaning and the Political Culture of Written Constitutions in Revolutionary America (UCLA Law Review, Vol. 56, No. 1295, 2009/Washington University in St. Louis Legal Studies Research Paper No. 12-05-26) on SSRN (Accepted Paper Series). Here is the abstract:

This article seeks to apply careful analysis to the preamble of the Second Amendment, sensitive to the linguistic usages of the time and to the historical context of the prevailing political culture.  This approach does not entirely reject Justice Scalia’s announced method of giving an original meaning to the amendment as understood by the public in 1791. This article, however, includes an analysis of post-ratification meaning in order to contrast nineteenth-century sources with the more proper object of analysis, that of the eighteenth century.

Part I of the article revisits the emergence of original public meaning jurisprudence. Part II examines the ways that the American public between 1776 and 1800 struggled to use the language of written law to articulate what it meant in establishing republican government. Part III looks at the constitutional mechanisms created to give meaning to the American public’s ideas on the restraint of power, especially the many nonjudicial mechanisms, including the “well regulated militia,” that mobilized or enlisted public participation in checking arbitrary government. Part IV turns to the use of preambles in the new state constitutions and in the Second Amendment, showing the preamble to the Second Amendment to be inseparable from “the right of the people to keep and bear Arms” and narrowing its meaning to service in state constituted militias. A brief final concluding section sees the 1790s as a liminal decade in American constitutionalism — one in which ideas were being overtaken by political changes occurring so fast that the political community had trouble recognizing the powerful historical forces that the community itself was propelling. Within a generation, a new political culture gave rise to a public understanding of an individual right to keep and bear arms that overtook the “original public meaning” of a collective right and buried what the “public” actually had meant when it ratified the amendment in 1791. What the clear articulation of that right meant in 1830, therefore, illuminates what it did not mean in 1791.

Robert Leider (Yale University - School of Law) has posted Our Non-Originalist Right to Bear Arms: How Public Opinion Has Shaped the Second Amendment (Working Paper Series) on SSRN. Here is the abstract:

This paper develops a robust model of how nineteenth-century courts actually adjudicated the content of the right to bear arms under federal and state constitutional guarantees. My argument is that nineteenth-century courts were not "originalists or "textualists" about the Second Amendment: they did not look to how James Madison viewed the right in 1789 or how Americans in 1791 commonly understood the Second Amendment.

Instead, I argue that most nineteenth-century courts shaped the right to bear arms around the contemporary popular understanding of the right. In other words, as the popular consensus about the appropriate scope of the right to bear arms changed over time, courts evolved their jurisprudence on the right to bear arms to reflect this popular shift. Courts only struck down weapon control laws when those laws fell too far outside the contemporary popularly accepted scope of the right.

After examining the nineteenth-century jurisprudence, I turn my attention to the federal jurisprudence in the twentieth century. I offer a revisionist account for why the federal courts adopted the collective rights reading of the Second Amendment after United States v. Miller. I argue that Miller entrenched the nineteenth-century rule that the Second Amendment protected only military arms. Because the military was transitioning to automatic weapons, which were widely considered inappropriate for civilian use, Miller left federal courts unable to adapt the right to bear arms around its contemporary popular consensus. Consequently, courts adopted the "collective rights view" — not because they necessarily thought that it was the correct interpretation of the Second Amendment (though a few of them did) — but because they were unwilling to entrench an individual right to bear arms that was too extreme by contemporary standards. In fact, until the Fifth Circuit shook matters up in 2001, the courts of appeals generally disposed of Second Amendment claims with little or no serious analysis.

I conclude by arguing that District of Columbia v. Heller was a return — not to originalism — but to the nineteenth-century evolving right to bear arms. The right to bear arms articulated in Heller reflects the popular conception of the right in the twenty-first century: the right of law-abiding citizens to have handguns (but not military arms) in their homes for personal protection. Unlike Miller, Heller empowered the federal courts to shape the Second Amendment around contemporary notions of reasonableness. In so doing, I argue that Heller continues a tradition established long ago. When scholars attempt to predict how future courts will handle novel Second Amendment claims, they should look towards contemporary popular beliefs about the right to bear arms — not to how the Framers viewed the right.

Interestingly, if these articles are right about nineteenth-century views, it would seem that the gun rights protected by the Second Amendment may be much narrower than the rights protected by the Fourteenth Amendment (exactly the opposite of what the dissent argued in the McDonald case).


Southern Union v. United States: Juries and Criminal Fines
Michael Ramsey

A reader draws attention to yesterday's Supreme Court opinion in Southern Union Co. v. United States, which contains an interesting disagreement on the relative weight of historical practice versus post-ratification court opinions.  SCOTUSBlog summarizes: "[The Court] held that the rule established in Apprendi v. New Jersey – in which the Court held that the Sixth Amendment’s jury-trial guarantee requires that any fact (other than the fact of a prior conviction) which increases the maximum punishment authorized for a particular crime be proved to a jury beyond a reasonable doubt –  applies to the imposition of criminal fines."

Our reader comments:

Interestingly enough [Justice] Sotomayor [writing for the majority] looks to history and [Justice] Breyer [writing for the dissent] looks to an 1812 opinion, US v. Tyler.

Sotomayor wrote:

Whatever the precise meaning of this decision [Tyler], it does not outweigh the ample historical evidence showing that juries routinely found facts that set the maximum amounts of fines. 

Breyer writes

The Court [in Tyler] did not say explicitly that the Sixth Amendment permitted the judge to find the relevant sen­tencing fact. ... But it seems unlikely that a Court that included Chief Justice John Marshall, Justice Joseph Story, and others familiar with both the common law and the Constitution would have interpreted a federal statute as they did if either contemporary legal practice or the Constitution suggested or required a differ­ent interpretation.

Notably, Justices Scalia and Thomas joined the majority.



The Spending Power is Madisonian, not Hamiltonian: Part II (A Defense of the Madisonian Interpretation)
Mike Rappaport

In my first post on the Spending Power, I identified problems with the Hamilton interpretation.  In this post, I defend the Madisonian interpretation.

4.  If the Hamiltonian interpretation is mistaken, how can we reach the Madisonian interpretation?  Michael Greve makes the common argument that the Madisonian interpretation has a serious redundancy.  The language “to pay the debts and provide for the common defense and general welfare of the United States” was not needed to allow Congress to spend for the enumerated powers.  Presumably, spending for a particular enumerated power was pretty clearly allowed under that power and the Necessary and Proper Clause.

This argument has been used against the Madisonian interpretation for a long time.  But even if the Madisonian interpretation did involve a redundancy, I still think it would be the best interpretation.  The problems I mentioned in my first post seem to me much worse (even though I, unlike some others, regard redundancy as a relatively serious cost of an interpretation).  But I think defenders of the Madisonian interpretation can do better than swallowing the cost of the redundancy.

5.  There are two significant ways that the Madisonian interpretation can be improved.  First, we can show that this language is not redundant.  Second, we can link the language “to pay the debts and provide for the common defense and general welfare of the United States” to the enumerated powers.  Let me start with the second way.

One might wonder why the Framers would not have said, Congress can tax in order to fund the government’s execution of the powers conferred on it by this Constitution.  That might have seemed clearer, but the language they used also conveyed the same meaning.  To begin with, the enumerated powers are readily described as powers that “provide for the common defense and general welfare of the United States.”  Local (nongeneral) powers, for example, were left to the states.  The addition of paying the debts seems a bit specific (under any reading) but it is comfortably part of the powers of Congress.

Moreover, the Articles of Confederation had already used a similar phrase to refer to the enumerated powers of the federal government.  Section 8 of the Articles provides that “All charges of war, and all other expenses that shall be incurred for the common defense or general welfare, and allowed by the United States in Congress assembled, shall be defrayed out of a common treasury.”  It seems pretty clear that the Articles here is saying that all money that is spent pursuant to an enumerated power must come out of a common treasury.  And it is using common defense and general welfare to refer to those powers.  By contrast, the Hamiltonian interpretation would suggest that the Congress under the Articles had the power to spend for the general welfare, which, given the sparse powers conferred under the Articles, seems exceedingly unlikely.

6.  Finally, the general welfare language need not be understood as redundant.  Rather, we can make full sense of the language – its reference to the enumerated powers and its inclusion as the purpose of the tax powers – in the following way.  This language was added to make clear that the tax power needed to be used to raise revenue.  In other words, the purpose of the taxing power was to raise revenue to fund the government.  It was not to use that power for regulatory purposes.  That explains why the language took the form of the purpose of the tax powers.

One potential problem with conferring the taxing power is that it could be used for regulatory purposes.  For example, after the Supreme Court held that Congress did not have the power to prohibit child labor, Congress sought to tax such labor as a means not of raising revenue, but to prohibit or discourage it.  The Supreme Court saw through this ruse and struck down the taxing power.  Moreover, it is necessary to prohibit such “regulatory taxes” if provisions like the interstate requirement of the Commerce Clause are not to be avoided.

The language specifying the purpose of the taxing power confirms the correctness of this interpretation.  The language makes clear that the taxing power is to be used to fund the enumerated powers – to provide for the common defense and general welfare – and not to regulate.

Thus, the Madisonian interpretation of the spending power does not have a redundancy problem.  It reads the purpose oriented language of the taxing power as having a clear and important effect.

(Cross posted at the Liberty Law Blog)

Ilya Somin on the President's Power to Not Enforce the Law
Michael Ramsey

At Volokh Conspiracy, Ilya Somin has a post titled In Praise of Obama's New Immigration Policy.  It's mostly a defense on policy grounds (which I don't care about, at least for purposes of this blog), but it has this argument on the constitutionality of the President's order:

Some critics, such as John Yoo and Arnold Kling, attack the president’s decision not on the merits, but on the grounds that he lacks legal authority to choose not to enforce the law in this case.

This criticism runs afoul of the reality that the federal government already chooses not to enforce its laws against the vast majority of those who violate them. Current federal criminal law is so expansive that the majority of Americans are probably federal criminals. That includes whole categories of people who get away with violating federal law because the president and the Justice Department believe that going after them isn’t worth the effort, and possibly morally dubious. For example, the feds almost never go after the hundreds of thousands of college students who are guilty of using illegal drugs in their dorms. The last three presidents of the United States – all have reason to be grateful for this restraint.

Yoo contends that there is a difference between using "prosecutorial discretion" to "choose priorities and prosecute cases that are the most important" and "refusing to enforce laws because of disagreements over policy." I don’t think the distinction holds water. Policy considerations are inevitably among the criteria by which presidents and prosecutors "choose priorities" and decide which cases are "the most important." One reason why the federal government has not launched a crackdown on illegal drug use in college dorms is precisely because they think it would be bad policy, and probably unjust to boot. That, of course, is very similar to Obama’s decision here.

Finally, Yoo also argues that prosecutorial discretion does not allow the president to refuse to enforce an "entire law," as opposed to merely doing so in specific cases. But Obama has not in fact refused to enforce the entire relevant law requiring deportation of illegal immigrants. He has simply chosen to do so with respect to people who fit certain specified criteria, that the vast majority of illegal immigrants do not meet. Even if the president did choose to forego enforcement of an entire law, it’s not clear to me that that is outside the scope of prosecutorial discretion. A president who uses his discretion to "choose priorities" could reasonably conclude that enforcement of federal laws A, B, and C is so much more valuable than enforcement of D that no resources should be devoted to the latter if they could possibly be used for the former.

These are all fair points, though I'm left with two questions:

(1)  Where would Professor Somin draw the line between permissible non-enforcement and violation of the take care clause?  Could the President, if unable to persuade Congress to enact a middle-class tax cut, announce that henceforth people making below a specified income level will not be punished for failing to pay taxes?  I'd be surprised if many people think he could do that, but I'm having some trouble seeing how the present policy is different.

(2) Is it true that all of the President's policy can be explained simply as a decision not to enforce the law?  Professor Somin assumes so, but my limited understanding was that the policy conveys affirmative benefits.

UPDATE:  Professor Somin responds (via an update to his original post) as follows:

On Ramsey’s first question, I would say that the president could indeed choose not to prosecute people making below a specified income for tax evasion. I think that is an inevitable result of a system of separation of powers where prosecutorial discretion is lodged in an executive separate from the legislature. The constraint on this kind of abuse of power is primarily political. A president who takes discretion too far risks a backlash by Congress and the public. Notice that the same scenario could arise from the use of the president’s pardon power. The president could announce that he will pardon anyone who is convicted of tax evasion if their annual income is below a certain level. No one doubts that the Constitution gives him such authority, and that the relevant constraint on it is mostly political. In reality, president’s are unlikely to massively abuse prosecutorial discretion for much the same reason as they are unlikely to pardon anyone who violates a federal law they disagree with.

Regarding the second question, I am not aware of any “affirmative benefits” attached to Obama’s decision, other than those that are inevitably attached to being able to remain in the US. If there are such benefits, they may indeed raise legal issues that go beyond the issue of prosecutorial discretion.

Leaving the second point aside for now (because it's not as interesting), I'll further comment on the first by saying:  Wow, so the President can lower everyone's tax rates by executive order?  Why then did President Bush work so hard in 2001 to encourage Congress to enact the "Bush tax cuts" when he could have just announced that anyone who paid at the rate he specified wouldn't be prosecuted?  Relatedly, does that mean the President can in effect adopt a (temporary) flat tax by saying that anyone who pays, say, 10% of income in taxes doesn't need to worry about enforcement? 

More seriously, it seems to me that we face here two conflicting constitutional rules: the President's Article II, Section 3, obligation to take care that the laws are faithfully executed and the President's Article II, Section 1, executive power to decide how to enforce the law.  The challenge is to explain how they interact.  Professor Somin's response seems instead simply to ignore one of them.  In posing my hypothetical, I was trying to draw out his explanation of the take care clause.  But perhaps he thinks that the President does not have an obligation to enforce the laws.  I'm not sure how that could be reconciled with the Constitution's text, but I'm also not sure what other conclusion to draw from his response.

RELATED:  Charles Krauthammer argues here that the key is a blanket rule versus case-by-case discretion:

Prosecutorial discretion is the application on a case-by-case basis of considerations of extreme and extenuating circumstances. No one is going to deport, say, a 29-year-old illegal immigrant whose parents had just died in some ghastly accident and who is the sole support for a disabled younger sister and ailing granny. That’s what prosecutorial discretion is for. The Napolitano memo is nothing of the sort. It’s the unilateral creation of a new category of persons — a class of 800,000 — who, regardless of individual circumstance, are hereby exempt from current law so long as they meet certain biographic criteria.

This is not discretion. This is a fundamental rewriting of the law.

I'm not sure that's right either.  I don't see why the executive can't exercise discretion categorically rather than case-by-case.  The Highway Patrol may decide, for example, that even though the speed limit is 65, it won't bother stopping anyone going under 70 (regardless of individual circumstances).  I think we would understand that as an exercise of executive enforcement discretion, not as rewriting the law.  The puzzle goes deeper than Krauthammer suggests, I think.


The Spending Power is Madisonian, not Hamiltonian: Part I (Problems with the Hamiltonian Interpretation)
Mike Rappaport

In a recent post, I criticized Michael Greve's new book for adopting the Hamiltonian interpretation of the Spending Power rather than the Madisonian interpretation.  In response, Michael argues that the Madisonian interpretation of the spending power that I recommend is inconsistent with the language of the Constitution.  Thus, Michael concludes that we are stuck with the Hamiltonian interpretation of the spending power, whether we like it or not.

I don’t agree.  As an originalist, I believe that the Madisonian interpretation, rather than the Hamiltonian one, accords with the original meaning.  In a series of two posts, I will explain why.  This post criticizes the Hamiltonian interpretation.  My next one defends the Madisonian interpretation, using what I think are some new arguments.

First, some definitions.  The Madisonian interpretation of the spending power reads the power as limited to spending on the other enumerated powers of the federal government.  The Hamiltonian interpretation of the spending power, by contrast, argues that Congress has the power to spend for the general welfare, even if its spending is not authorized by any other enumerated power.

The constitutional language reads: “The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States.”

1. The first point to be clear about is that this language means “The Congress shall have power to lay and collect taxes . . . in order  to pay the debts and provide for the common defense and general welfare of the United States.”  Paying the debts and providing for the common defense and general welfare are the purposes for which the taxes are collected.

The alternative interpretation would read the language as saying “The Congress shall have power to lay and collect taxes . . . and power  to pay the debts and provide for the common defense and general welfare of the United States.”   Under this interpretation, there are two separate powers: the power to tax and the power to provide for the common defense and general welfare.  This reading seems far worse for a variety of reasons too numerous to go into here.  To just mention one, it would be odd to list the extremely broad power of providing for the common defense and general welfare after the power to lay and collect taxes (dividing them with a comma rather than a more grammatically correct “and” or semicolon) and then to return at the end of the sentence to address the taxing power again by requiring all duties to be uniform throughout the United States.

2. So let’s assume the language means “in order to provide for the general welfare.”  Once we do that, though, a problem arises.  The power to spend for the general welfare (beyond the enumerated powers) is an enormous power.  It authorizes Social Security,  Medicare, and Medicaid, to name just a few programs.  It would be odd to convey that power by describing it (as this reading does) as the purpose of the taxing power.  Rather, such a large power should be listed as an independent power (but as we have just seen, the language cannot be read in that way).

The language here says the government can tax in order to  spend for the general welfare.  The constitution usually provides for significant powers by listing them separately such as the power to declare war, to regulate interstate commerce, to tax, etc.  Thus, one needs an explanation for why such a significant power would be phrased merely as the purpose of the taxing power.  (In my next post, I explain why the language takes the form of a purpose, using an explanation that supports the Madisonian interpretation.  The Hamiltonian interpretation has, as far as I can see, no explanation for why the language takes the form of a purpose.)

3. Another problem with the Hamiltonian interpretation is that it requires us to believe that the Framers would have conveyed an enormous power like spending for the general welfare while limiting that power only with an extremely vague term like “general welfare.”  They understood that general welfare was difficult to define.  If one looks at Congress’s other powers, they are not limited by such vague terms.  Even though the Framers use general terms that certainly require interpretation, like commerce among the states, the terms they use are uniformly less vague and clearer than “spending for the general welfare.”  This vagueness, combined with the fact that the alleged power is in the form of a purpose, make it extremely unlikely that the Constitution is conveying the Hamiltonian spending power.

These are main problems with the Hamiltonian interpretation.  In my next post, I defend the Madisonian interpretation.

(Cross posted at the Liberty Law Blog)

Jeremy Leaming: Justice Scalia, the Opportunistic Originalist
Michael Ramsey

At the ACS Blog, Jeremy Leaming: Justice Scalia, the Opportunistic Originalist (commenting on Scalia's apparent change-of-heart regarding Wickard v. Filburn).

David Bernstein and Jonathan Adler have related thoughts at Volokh Conspiracy.


Andrew Hyman Comments on the President's Take Care Obligation
Michael Ramsey

Andrew Hyman sends two thoughts on this post regarding the President's obligation to enforce the law.  First:

Regarding Bob Krumm's point [that President Jefferson refused to enforce a congressional appropriation], Congress has sometimes made permissive rather than mandatory appropriations. That’s what happened in 1803. Congress appropriated $50,000 to build “not exceeding fifteen gun boats, to be armed, manned and fitted out, and employed for such purposes as in his opinion [THAT’S JEFFERSON’S OPINION] the public service may require,” Act of Feb. 28, 1803, ch. 11, §3, 2 Stat. 206. And JEFFERSON’S opinion was that, “The favorable and peaceable turn of affairs on the Mississippi rendered an immediate execution of that law unnecessary,” 13 Annals of Cong. 14 (1803).  And even if you believe somehow that Jefferson was defying a constitutional law enacted by congress, the Supreme Court has clearly rejected that sort of power.  See Train v. City of New York, 420 US 35 (1975).

A great point.  Especially with that clarification, I don't think Bob Krumm's post has any solid near-founding-era precedent for the President flatly refusing to enforce the law (not to say, though, that there isn't some out there).

Second, in response to my claim that the Bush administration claimed the power to "suspend" treaties:

[R]egarding the Gonzales interpretation of the Geneva Conventions ... Alberto Gonzales on January 25, 2002 wrote:

"The U.S. will apply GPW [Geneva Convention on Prisoners of War] 'whenever hostilities occur with regular foreign armed forces.' By its terms, therefore, the policy [of the first President Bush] does not apply to a conflict with terrorists, or with irregular forces like the Taliban...."

I haven't analyzed the GPW myself to determine whether the distinction between regular and irregular armed forces is legitimate, but it certainly was US policy before 9/11/2001.

He's right that the ultimate Bush administration policy was that the Geneva Conventions by their terms did not apply, not that the Conventions were suspended.  But in a prior memo on behalf of the Office of Legal Counsel, John Yoo and Robert Delahunty argued that "[a]s a constitutional matter, the President has the power to consider the performance of some or all of the obligations of the United States under the Conventions suspended .... As the Nation's representative in foreign affairs, the President has a variety of constitutional powers with respect to treaties, including the power to suspend them."  (See my article Torturing Executive Power, Georgetown Law Journal, vol. 93, at pp. 1227-28 (2005) for discussion).  This was the claim I had in mind.

Ralph Rossum: Clarence Thomas’s Originalist Understanding of the Interstate, Negative, and Indian Commerce Clause
Michael Ramsey

Ralph A. Rossum (Claremont McKenna College) has posted Clarence Thomas’s Originalist Understanding of the Interstate, Negative, and Indian Commerce Clause (University of Detroit Mercy Law Review, Vol. 88, No. 769, 2011) on SSRN.  Here is the abstract:

During his twenty years on the Supreme Court, Justice Clarence Thomas has pursued an original understanding approach to constitutional interpretation. He has been unswayed by the claims of precedent — by the gradual build-up of interpretations that, over time, completely distort the original understanding of the constitutional provision in question and lead to muddled decisions and contradictory conclusions. Like too many layers of paint on a delicately crafted piece of furniture, precedent based on precedent — focusing on what the Court said the Constitution means in past cases as opposed to focusing on what the Constitution actually means — hides the constitutional nuance and detail he wants to restore. Thomas is unquestionably the Justice who is most willing to reject this build-up, this excrescence, and to call on his colleagues to join him in scraping away past precedent and getting back to bare wood — to the original understanding of the Constitution.

In what follows, Section I describes Thomas’s originalism and contrasts it with Antonin Scalia’s different kind of originalism. Section II explores Thomas’s originalist understanding of the limits of Congress’s power under the Interstate Commerce Clause. Section III focuses on Thomas’s rejection of the Court’s claim of power to invalidate state laws burdening interstate commerce under the negative Commerce Clause on originalist grounds. Section IV addresses Thomas’s rejection of the view that the Indian Commerce Clause gives the Congress plenary power in Indian country and his call in United States v. Lara for the Court to "examine more critically our tribal sovereignty case law." Section V concludes.