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40 posts from August 2016


Jonathan Adler: The Senate Has No Constitutional Obligation to Consider Nominees
Michael Ramsey

Jonathan H. Adler (Case Western Reserve University School of Law) has posted The Senate Has No Constitutional Obligation to Consider Nominees (George Mason Law Review Developments, forthcoming) on SSRN.  Here is the abstract:      

After the death of Justice Antonin Scalia, Senate Republicans announced they would refuse to consider any nomination for his seat on the Supreme Court prior to the next presidential election. In response, some have argued that the Senate has a constitutional obligation to act on a Supreme Court nomination. This argument finds no support in the relevant constitutional text, constitutional structure, or the history of judicial nominations. While there are strong policy and prudential arguments that the Senate should promptly consider any and all nominations to legislatively authorized seats on the federal bench, and on the Supreme Court in particular, the argument that the Senate has some sort of constitutional obligation to take specific actions in response to a judicial nomination is erroneous.

I agree.


The Tiers of Scrutiny: A Public Choice Analysis
Mike Rappaport

In a prior post, I discussed Justice Clarence Thomas’s criticism of the Supreme Court’s tiers of scrutiny jurisprudence.  Given Thomas’s criticism of the tiers as both made up and inconsistently applied, one might wonder why the Supreme Court follows this approach.  My explanation is one that relies on a public choice theory of the justices.  The Supreme Court follows this approach because it enhances – perhaps maximizes – its power.

One might question that the Supreme Court’s power is enhanced by the tiers of scrutiny jurisprudence.  After all, the tiers seem to involve rules of a sort that would arguably limit the discretion of the court.  If racial classifications are subject to strict scrutiny, it makes it difficult for the Court to allow them, even the ones that the Court might approve of.  Instead, a Court seeking to maximize its discretion would employ entirely vague standards – or individual edict like judgements – so that it could do as it pleased.

There are, however, two problems with this approach.  The major problem is that this approach would make it difficult for the Supreme Court to control the lower courts.  The Supreme Court cannot review every decision of the lower courts.  In fact, it can only review a small percentage of their decisions, even in the politically salient cases.  The tiers of scrutiny – as well as doctrine generally – is a device the Court uses to control the lower courts.  This seemingly rule like jurisprudence places real limits on the inferior courts.

Another problem with exceedingly vague standards is that it would reduce the legitimacy of the Supreme Court.  If the Court were seen as simply announcing its preferences, that would reduce its legitimacy. If the Court can argue that its decisions follow from more general principles, it can be seen as enforcing a prior jurisprudence.

While this approach has these advantages for the Supreme Court, it also is not all that constraining in the way that the Court implements it.  As Justice Thomas suggested, the Supreme Court applies the approach in an inconsistent way, thereby generally allowing it to reach the results it prefers.

Ed Whelan on Randy Barnett's "Our Republican Constitution"
Michael Ramsey

At NRO, Ed Whelan has a four-part review of Randy Barnett's Our Republican Constitution (Broadside Books 2016).  Here are part 1, part 2, part 3 and part 4.

Parts 3 and 4 are, I think, the most important, and illustrate the two core differences between libertarian orignialism and more conventional originalism.  First, from part 3:

Barnett particularly criticizes the “Thayerian” version of “judicial restraint” or “judicial deference,” and the readers of his book might well be left with the impression that the only viable alternative is Barnett’s “judicial engagement.” Such an impression would be mistaken.

In an 1893 law-review article, Harvard law professor James Bradley Thayer adopted an extreme view of deference under which a federal court should not strike down a federal law merely because it “conclude[s] that upon a just and true construction the law is unconstitutional”; rather, it should do so only “when those who have the right to make laws have not merely made a mistake, but have made a very clear one—so clear that it is not open to rational question.”

As I have observed before, among the many originalist proponents of judicial restraint, there might be one Thayerian. ...  As law professor John McGinnis has explained in “The Duty of Clarity,” there is ample middle ground between Thayerian deference and no deference. Specifically, McGinnis makes the originalist case for a more modest “deference theory” that “requires the judiciary to decline to displace legislation unless it conflicts with a meaning of the Constitution that can be clearly ascertained after applying all legal methods.”

The amount of judicial deference owed to the political branches is a major point of disagreement among originalists.  I agree that it is a spectrum rather than a dichotomy.  But I would add that the McGinnis model is not necessarily the preferred model, even among conventional originalists.  For example, I wouldn't say that Justice Scalia (for all his exalting of democratic values) was deferential in applying actual provisions of the Constitution (as opposed to propositions he regarded as invented by judges).  For example, he voted in favor of the constitutional challenge to Obamacare, where more deferential originalist judges such as Jeffrey Sutton and Laurence Silberman voted the other way.

Next, from Part 4: 

Barnett contends that the[ ] Due Process guarantees mean that any person subject to a law that restricts his life, liberty, or property must have a “fair opportunity to contest whether [that law] is within the ‘proper’ or ‘just power’ of a legislature to enact and therefore carries the obligation of a law.” (P. 228 (emphasis in original).) A law that is “irrational or arbitrary” is by definition “not within the just powers” of a legislature—even if it is enacted through an exercise of a constitutional power. (P. 228.) Further, if a power is being exercised for a just purpose, “we must next ask if the restriction of liberty is necessary to serve” that purpose. “Strict logical necessity is not required,” but “some degree of means-ends fit must be shown.” (P. 231.)

My basic question for Barnett is: Where does all this come from? How, in particular, does it flow from the original-meaning principles that he advocates?

Even more than judicial deference, I think this is the fault line between libertarian originalists and conventional originalists. While sometimes mis-described as a question of deference, it's really a question of substance: does the due process clause give judges the ability to assess the substantive rationality of a law?  (Scalia, representing conventional originalism, thought no -- even though he was, as noted, not especially deferential in applying other constitutional provisions).  Even here, though, there may be a spectrum of views.  See this post from yesterday.


John McGinnis on the Constitution and Rent Seeking
Michael Ramsey

At Liberty Law Blog, Johm McGinnis: The Constitution Constrains Rent-Seeking Without Eliminating Politics.  From the introduction:

Greg Weiner, in a characteristically thoughtful post, suggests that libertarian constitutionalism wrongly eliminates democratic politics from the polity in favor creating a republic of reason where rationality is judicially determined. While I am not a libertarian, but a classical liberal, I think that the correct reading of the U.S. Constitution does impose important constraints on the politics of rent-seeking. But it does not suppress politics so much as redirect it.

Professor Weiner correctly observes that many libertarians want to use the Constitution to prevent rent-seeking. The provision commonly referenced for this purpose is the Fourteenth Amendment. Note first, however, that the Fourteenth Amendment’s provisions apply only to the states. Thus, under a proper reading of our Constitution, the federal government may countenance rent-seeking within the scope of its enumerated powers. The difference between the strictures on states and on the nation may comport with the greater confidence that the extended republic will not be dominated by particular factions.

Moreover, at least under the appropriate reading of the Fourteenth Amendment, the restrictions on state legislation are relatively modest. The state must show that the legislation possesses a public regarding rationale and is not simply an instrument to transfer of resources or opportunity from one group to another. The great error of Williamson v. Lee Optical was that it permitted judges to make up a rationale for the legislation, and one that was not actually pleaded by the state, let alone supported by any evidence. Under the proper interpretation of the Fourteenth Amendment, legislation does not have to be perfectly rational, but it does have to some palpable basis in the public interest, such as health and safety. ...


Amy Coney Barrett and John Copeland Nagle: Congressional Originalism
Michael Ramsey

Amy Coney Barrett (Notre Dame Law School) and John Copeland Nagle (Notre Dame Law School) have posted Congressional Originalism (University of Pennsylvania Journal of Constitutional Law, forthcoming 2016) on SSRN. Here is the abstract:     

Precedent poses a notoriously difficult problem for originalists. Some decisions – so-called super precedents -- are so well baked into government that reversing them would wreak havoc. Originalists have been pressed to either acknowledge that their theory could generate major disruption or identify a principled exception to their insistence that judges are bound to enforce the Constitution’s original public meaning. The problem is especially acute for an originalist member of Congress. While the stylized process of adjudication narrows the questions presented to the Court, in Congress the question of a measure’s constitutionality is always on the table. And because framing constraints do not narrow the relevant and permissible grounds of decision as they do in litigation, evaluating a bill’s constitutionality arguably requires analysis of every possible constitutional flaw.

We argue that Congress may employ a working presumption that super precedents are constitutional and thereby refrain from re-examining them. Presuming that a super precedent is correct is different from endorsing its correctness. If the precedent is erroneous, the latter course gives priority to precedent rather than text. The former course, however, is a technique for avoiding the question whether the precedent is right or wrong. Congress may assume arguendo that well settled precedents are correct and focus its attention on questions that are politically salient. If the Court reconsiders super precedent in response to litigants, Congress does so in response to constituents. The responsibility for initiating a correction of constitutional error lies with the People. If the People want Congress to examine the soundness of constitutional precedent, they must convince it to do so.


Andrew Coan: The Foundations of Constitutional Theory
Michael Ramsey

Andrew Coan (University of Arizona, James E. Rogers College of Law) has posted The Foundations of Constitutional Theory  on SSRN. Here is the abstract:     

Normative constitutional theory asks at least two distinct questions: How should judges and other officials approach constitutional decision-making? And what counts as a good reason — or “normative foundation” — for adopting a particular approach? The two questions are obviously related, but the first has filled libraries while discussion of the second has been largely unsystematic and ad hoc. There is no well-recognized taxonomy of the types of reasons on which an approach to constitutional decision-making might be premised. Nor is it widely appreciated that competing approaches might rest on the same type of normative foundation or that multiple normative foundations might be invoked to support a single approach to constitutional decision-making.

This Article proposes a taxonomy organizing the normative foundations of constitutional theory into four distinct categories: metaphysical, procedural, substantive, and positivist. This taxonomy clarifies that theoretical disagreement can concern the proper approach to constitutional decision-making, what counts as a good reason for adopting a particular approach, or both. It also permits analysis of the attractions and limitations common to each type of normative claim, revealing significant points of overlap between apparently divergent approaches. Positivist originalism, for instance, may in some respects share more in common with positivist common-law constitutionalism than with metaphysical originalism. These points of overlap should serve as the basis for new and more productive discussion among theorists who have previously considered themselves completely at loggerheads.

(Note: this is a different paper from this one, noted earlier).


Josh Blackman: Government by Blog Post
Michael Ramsey

Josh Blackman  (Houston College of Law) has posted Government by Blog Post (11 Florida International University Law Review 389 (2016)) on SSRN.  Here is the abstract:  

During the implementation of the Affordable Care Act, President Obama repeatedly turned to this all-too-familiar pattern of executive action. First, the impact of the Affordable Care Act made certain groups worse off. Second, as a result, Congress was pressured to modify the law to alleviate these negative externalities from the law. However, Democrats feared that Republicans would seize the opportunity to unravel other portions of the law. This halted any possible bipartisan support for legislative amendments. Third, in the face of this gridlock, President Obama turned to executive action to alter the ACA’s onerous mandates. Specifically, he delayed and suspended the individual and employer mandates, as well as modified provisions affecting benefits for Congressional employees and coverage in the U.S. territories.

Each of these executive actions — implemented through formal notice-and-comment rulemaking or informal social-media blogging — came as a complete surprise. Each change posed risks to the long-term sustainability of the law. Each change relied on tenuous readings of the statute, and dubious assertions of executive authority to accomplish ends entirely at odds with what Congress designed. Each action was contested in court by states and private parties. However, because the executive actions had the effect of lifting burdens, rather than imposing any injuries, the government vigorously contested that no one had standing to bring suit. As a result, the ultimate legality of these moves was decided not by the courts, but by the President, who desperately acted alone to salvage his signature law.

One of the more disconcerting aspects of the law’s implementation, beyond the numerous delays and waivers, has been the cavalier approach by which the government announced these changes. It soon became a painful pastime of ferreting through these massive document dumps and attempting to find the actual basis for the rule previously announced in the blog post. And invariably, the policy, as stated in the blog post, doesn’t quite match up what is in the rule. This was no longer a government of law, but a government by blog post.

This article was part of a symposium on the separation of powers hosted by the Florida International University Law Review.

(Via Josh Blackman's Blog).  Video of the symposium is here.  Professor Blackman's slideshow is memorable.  My much-less-memorable contribution  is this article: Evading the Treaty Power?: The Constitutionality of Nonbinding Agreements.


Andrew Coan: Living Constitutional Theory
Michael Ramsey

Andrew Coan (University of Arizona, James E. Rogers College of Law) has posted Living Constitutional Theory on SSRN.  Here is the abstract:    

Recent work has questioned the dichotomy between living constitutionalism and originalism on the ground that our understanding of what is “original” is itself a changing phenomenon. It is not just understandings of constitutional history, however, that evolve over time. It is also understandings of the role that history ought to play in constitutional interpretation and adjudication. Indeed, the two evolutionary processes are intertwined in complex ways. In this Essay, I sketch a brief, stylized narrative explaining how this dynamic has played out in U.S. constitutional theory over the past five decades. The upshot is that constitutional theory, no less than constitutional doctrine or constitutional history, lives. On some level, everybody understands this. But at any given time, it is far from the forefront of consciousness for most constitutional theorists. This Essay is a reminder and a call for greater self-consciousness.

(Via Larry Solum at Legal Theory Blog, who says "Interesting and recommended.")


Justice Thomas on the Tiers of Scrutiny
Mike Rappaport

In a prior post, I noted Jeffrey Toobin’s criticism of Justice Clarence Thomas for Thomas’s claim that since the New Deal, the Supreme Court’s constitutional doctrine has become an ‘unworkable morass of special exceptions and arbitrary applications.’”  Interestingly, Toobin never argues that Thomas’s claim is mistaken.  Toobin seems to feel that voicing the criticism of the Court is itself worthy of censure, whether or not it is true.  But in my view, Thomas’s claim is both true and damning.

In his dissent in the Court’s most recent abortion case, Whole Woman’s Health v. Hellerstedt, Justice Thomas offers two basic criticisms of the Court’s tiers of scrutiny jurisprudence: the tiers are not in the Constitution and that they are followed only inconsistently by the Court.

1. The Supreme Court generally employs three tiers of scrutiny: rational basis, intermediate, and strict scrutiny. Thomas first argues that these tiers are not in the Constitution. He claims that the Court has made them up, which Thomas focusing his criticism on the famous case of Carolene Products.  Thomas argues that the Court, in a footnote that was “pure dicta,” attempted to justify its special treatment of certain personal liberties like the First Amendment and the right against discrimination on the basis of race.

Thomas is certainly correct here.  There is little in the original meaning of the Constitution to justify special scrutiny to certain rights, such as the First Amendment or Equal Protection.  Those rights certainly deserve to be enforced, but it is not clear why they are “preferred rights.”

And Thomas goes on to show how the Court would later enforce certain unenumerated rights, such as the right to privacy, with equal vigor, even though the Carolene Products did not justify it.  Instead, liberal values supported these rights.

2. Thomas’s second point is that the tiers of scrutiny are not followed consistently. If the Court followed them consistently, then at least it would further the rule of law. But they don’t.   “Strict scrutiny is now applied in unequal, arbitrary manner.”

Thomas writes:

If our recent cases illustrate anything, it is how easily the Court tinkers with levels of scrutiny to achieve its desired result. This Term, it is easier for a State to survive strict scrutiny despite discriminating on the basis of race in college admissions than it is for the same State to regulate how abortion doctors and clinics operate under the putatively less stringent undue-burden test.

Likewise, it is now easier for the government to restrict judicial candidates’ campaign speech than for the Government to define marriage—even though the former is subject to strict scrutiny and the latter was supposedly subject to some form of rational-basis review.

I wonder what Toobin would say about these criticisms if he addressed them rather than simply dismissing them for being critical of the Court.  If the Court’s behavior is problematic – and it is – then it is open to criticism and should be criticized.

Eric Segall on Justice Scalia
Michael Ramsey

At Dorf on Law, Eric Segall: Supreme Irony: GOP Talking Points and Scalia’s True Legacy.  From the introduction:

It is fair for Republicans to promise to appoint Justices who will vote for policies that further their interests. It is absurd, however, for Republicans to suggest, as they always do, that what that means is that their judges, and only their judges, will respect the text and history of the Constitution. Since both Donald Trump and the official GOP platform pay specific homage to Justice Scalia as the kind of Justice they would name, examining the late Justice’s actual voting record instead of fairy tales about his alleged text-and-history approach shows the falsity of the GOP talking points about our highest Court.

Justice Scalia did consistently vote against abortion and gay rights, often ranting that the Constitution is “dead, dead, dead” and arguing that judges shouldn’t make up rights that are not listed in the text of the Constitution. In a famous dissent in an important abortion case, Scalia said that “value judgments should be voted on [by the people] not dictated” by unelected judges. These cases, however, are aberrations. because Justice Scalia frequently made up rights and rules that aren’t mentioned anywhere in the Constitution and are often in direct conflict with the history of the Constitution.

Some examples:

For example, the Eleventh Amendment to the Constitution unambiguously provides that states cannot be sued without their consent by a “citizen of another state.” Justice Scalia enthusiastically accepted a line of cases twisting this text to invent a rule that states can’t be sued even by their own citizens. He endorsed this conclusion not just on stare decisis grounds but on the merits, and on the bizarre basis, one that might even embarrass a so-called “living constitutionalist,” that the Amendment’s clear text was more important for what it “reflected” than for what it “said.”

Justice Scalia also concocted a rule that even when Congress is acting within its power to regulate commerce among the states, or any other power expressly given it in the Constitution, Congress cannot require states to help implement otherwise valid federal law. This so-called “anti-commandeering” rule is nowhere in the Constitution and directly conflicts with clear statements in the Federalist Papers that the states that ratified the Constitution understood that Congress could use them to implement federal law. If we needed a draft in a hurry, the strange made-up nature of this rule could become apparent quite quickly.

Justice Scalia voted to strike down a key section of the Voting Rights Act in a decision in which Chief Justice Roberts said that, even when Congress acts pursuant to its authority under the Reconstruction Amendments, ratified in the wake of the demise of slavery and the Civil War, it cannot treat different states differently absent a very strong reason. This principle is nowhere in the text of the Constitution, and it is hard to imagine any rule being more inconsistent with the original meaning of the Civil War Amendments than Chief Justice Roberts’ completely fabricated “equal state sovereignty” rule, which the Court announced for the first time ever in 2013.

Plus some further examples.  Without conceding the validity of any of them, it does seem that these are points Justice Scalia's defenders need to consider.