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41 posts from January 2015


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).