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41 posts from October 2016


The Rise of Delegation
Mike Rappaport

We now live in a world of delegation.  It is often said that most of the rules that are enforced at the federal level have not been enacted by Congress, but by administrative agencies.  It was not always that way.  The binding rules in the United States used to be enacted or recognized by other entities.  The statutory rules would be enacted by Congress and they would be interpreted by the courts.  Common law rules would be recognized by the federal courts.  And, of course, more areas were addressed solely at the state level.  It is true that agencies sometimes exercised delegated authority, but it was a much more limited affair.

This transformation to a world of delegation – to the Administrative State – has been quite astounding.  It is worthwhile pausing to consider some of the ways it happened.  There are two principal types of delegation that have occasioned this transformation: delegation of policymaking and delegation of legal interpretation.

The delegation of policymaking involves a congressional decision to authorize an agency to exercise policymaking discretion.  For example, many statutes that authorize agencies to take actions that are in the public interest are best interpreted as delegating such discretion to the agency.  The responsibility for this delegation largely lies with Congress, which decided to pass the statute.  The lead in this type of delegation has been taken by the Democrats – during the New Deal, the Great Society, and the Obama Administration – but the Republicans have certainly employed this tactic as well.  Additional responsibility for this type of delegation must lie with the Supreme Court, which after striking down a few delegations in 1935, has not struck down any, with the one possible exception of the Line Item Veto Act – the one delegation that would reduce the size of government.  

The second type of delegation – the delegation of legal interpretation – has occurred differently.  This type of delegation – which allows the agencies deference as to their interpretation of statutes or legislative regulations – occurred mainly through the judicial doctrines of Chevron deference and Seminole Rock deference.  Unlike the delegation of discretion, which clearly came from Congress, this type of delegation is principally the responsibility of the courts.  And here the Republicans have had at least equal, if not more, responsibility than the Democrats.

Congressional statutes are best read as not generally conferring deference on the agencies.  The Administrative Procedure Act (APA) does not appear to confer deference, but to require the courts to decide all legal questions. While specific statutes could explicitly or perhaps even implicitly confer deference on the agencies, this is nothing like the Chevron regime, which presumes that all ambiguities and gaps in the statute are delegated to the agency.  In my view, the great majority of cases where the courts currently grant Chevron deference would not involve any discretion under an approach that honestly asked whether Congress had actually conveyed such deference.  While there was some deference found by courts in the first generation or two under the APA, it was generally limited to smaller issues (such as mixed questions of law and fact rather than to pure questions of law).  It was the Republican judges in the middle 1980s that were the most important cause of the adoption of Chevron.

Chevron and Seminole Rock (which extends deference to agency interpretation of regulations) were disasters.  The Congress had already delegated policymaking discretion, but at least that discretion was limited by an independent decision on the law from the courts.  After Chevron and Seminole Rock, the agency’s delegated authority was greatly expanded, since the agency could now enjoy both types of delegation.

The moral of the story here is that dramatic changes like delegation are not simply the result of the actions of one government entity.  Such changes have to gain the approval (or at least acquiescence) of multiple parts of the government and often of both parties.

Ariane de Vogue on Justice Thomas
Michael Ramsey

At CNN Politics, Ariane de Vogue (CNN Supreme Court Reporter): Clarence Thomas' Supreme Court legacy.  A lengthy and surprisingly balanced  and complimentary article.  Some excerpts: 

"More so than any of the justices he's served with during his 25 years on the Court, there's a coherent theory behind almost every one of the opinions he writes," said Steve Vladeck, a CNN contributor and law professor at the University of Texas School of Law.
From his earliest days on the bench Thomas has stuck with a rare discipline to his view that the Constitution should be interpreted based on its original public meaning.
"He has exceeded all of our expectations about the magnitude of his talent," C. Boyden Gray, who worked in the White House Counsel's office on the Thomas nomination, said recently.
Although he largely stays out of public view, Thomas still attracts plenty of controversy and much of it concerns his opinions on race. The coming term will be no exception. He confounds his critics who seek something different from the man who replaced Justice Thurgood Marshall, a famed civil rights lawyer, on the court but delights his supporters for looking at the Constitution through what they believe is a color-blind lens.
His supporters were stunned when the Smithsonian opened a major museum meant to promote and highlight the contributions of African-Americans last month and almost entirely ignored the achievements of a black man who rose up from poverty to reach the highest pinnacle of the federal judiciary. His name came up only in reference to Hill's Senate testimony. They question why there is so little attention to Thomas' overall jurisprudence and so much time spent analyzing why he chooses to remain largely silent during oral arguments.
"It's long been a mistake to view Justice Thomas as operating in Justice Scalia's shadow," said Vladeck. "Behind the fact that they often (albeit not always) ended up on the same side of disputes lurked some fairly significant differences in methodology, interpretative commitments and style."
(Thanks to one of my Constitutional Law students for the pointer).


A Postscript About Migratory Birds and Missouri v. Holland
Andrew Hyman

I mentioned in my last post that I don't think Missouri v. Holland (the case involving a migratory bird treaty) was correctly decided.  I just want to add that a lot may depend upon the type of bird.  Suppose we're talking turkeys, for example, instead of eagles; a migratory turkey could have a lot more commercial significance than a migratory eagle, especially in view of a certain upcoming holiday.  Seriously, if the bird has commercial significance then its international travel may well fall within federal power, as distinguished from some other type of bird that flies across international lines without having any commercial significance.

Now, if we migrate this discussion from birds to, say, automobile manufacturing equipment, then would anyone argue that Ford Motor Company might be exempt from federal regulation when it transfers manufacturing equipment from its property in Michigan to its property in Canada, merely because no buying or selling was involved in that transfer?  Of course not.  And so migratory turkeys and migratory manufacturing equipment seem to both fall within the power of the federal government to regulate foreign commerce.  I leave it to you to ponder whether humans are more like eagles or more like turkeys, in this regard.

Martin Lederman: The Law (?) of the Lincoln Assassination
Michael Ramsey

Martin Lederman (Georgetown University Law Center) has posted The Law (?) of the Lincoln Assassination on SSRN.  Here is the abstract:      

Shortly after John Wilkes Booth killed Abraham Lincoln, President Andrew Johnson directed that Booth’s alleged coconspirators be tried in a makeshift military tribunal, rather than in the Article III court that was open for business just a few blocks from Ford’s Theater. Johnson’s decision implicated a fundamental constitutional question that had been a source of heated debate throughout the Civil War: When, if ever, may the federal government circumvent Article III’s requirements of a criminal trial by jury, with an independent, tenure-protected judge presiding, by trying individuals other than members of the armed forces in a military tribunal?

This Article III question has been debated in several of the nation’s major wars, yet remains unresolved, particularly with respect to the trial of domestic-law offenses. Moreover, that question is especially significant in the United States’ current armed conflicts against nonstate terrorist organizations, such as al Qaeda, both because members of such enemy forces, who lack international law “combatant immunity,” often violate U.S. criminal laws, and because Congress has recently authorized military commissions to try such enemy forces for certain domestic-law, war-related offenses. In attempting to justify the constitutionality of such military trials, the government has, perhaps surprisingly, turned to the Lincoln assassination commission as a leading precedent, one that arguably helps to establish a longstanding political branch practice that should inform constitutional understandings. Such reliance on the Lincoln trial as legal authority is understandable, because that proceeding was, in Judge Kavanaugh’s words, “the highest-profile and most important U.S. military commission precedent in American history,” and thus it would be striking — indeed, a significant constitutional embarrassment — to conclude that the trial and convictions of the Lincoln conspirators were unlawful.

As I demonstrate in this article, however, such respect for the Lincoln assassination trial as a canonical constitutional precedent would itself be historically anomalous. For almost 150 years it was virtually unthinkable for anyone to rely upon that proceeding as venerated legal authority: as one knowledgeable observer wrote, the Lincoln trial was a case of military jurisdiction that “no self-respecting military lawyer [would] look straight in the eye.”

This article offers the first comprehensive account of the ways in which the Article III question was contested during and immediately after the Civil War, with particular attention to the Lincoln assassination trial. The article also carefully examines the place of the Lincoln trial in the national constitutional discourse after 1868 — the ways in which that proceeding, and other Civil War military trials, have been accorded authority, or dismissed as nonauthoritative, by later generations. This broader historical narrative thus can help inform current academic and judicial debates about whether and under what circumstances political branch practice, especially high-profile precedents, ought to inform, or “liquidate,” the meaning or proper application of the Constitution.

(Thanks to Seth Barrett Tillman for the pointer).


Lawrence Solan & Tammy Gales
Michael Ramsey

Lawrence M. Solan (Brooklyn Law School) and Tammy A. Gales (Hofstra University) have posted Finding Ordinary Meaning in Law: The Judge, the Dictionary or the Corpus? (The International Journal of Legal Discourse, forthcoming) on SSRN.  Here is the abstract:      

Courts in the U.S. frequently apply a rule of statutory construction that calls for the words in laws to be given their “ordinary meaning”. The rule is based on the presumption that legislatures are most likely to have intended the language to be understood in their ordinary sense and on the value that people subject to such laws will more likely comprehend the rights and obligations granted to them. Courts are not, however, in accord when it comes to determining which of a term’s available meanings is the “ordinary” one. This article describes three methods for making this determination: the judge’s linguistic intuitions, dictionary definitions, and reference to linguistic corpora. We argue that the use of corpus analysis enhances the legal system’s ability to rely on actual distributional facts about word usage, thus enhancing the accuracy of ordinary meaning analysis. 

We apply the three methods to a case pending before the U.S. Supreme Court, Shaw v. United States, at the time this article is written. The issue in Shaw is whether the expression “defraud a financial institution” applies to a situation in which the defendant tricked a bank into releasing to him the funds of another depositor, when the bank suffered no loss. 

We look first at linguistic literature based largely on intuition, then at dictionary definitions, and finally at a corpus. Examining hundreds of examples from the Corpus of Historical English (COHA) developed at Brigham Young University, we find that the verb “defraud” is virtually always used to describe a situation in which the object of the fraud is also the target of the ultimate loss. Analyses based on the intuitions of linguists and on dictionary definitions are consistent with this result, although less robust. We conclude that if the Court wishes to be faithful to the ordinary meaning of the statutory language, it should rule that the statute does not apply to this situation.

(Via Larry Solum at Legal Theory Blog, who says "Highly recommended.  Download it while it's hot!").


Justice Scalia & John Manning on Statutory and Constitutional Interpretation
Michael Ramsey

From 2012, but recently posted on SSRN, Antonin Scalia (U.S. Supreme Court) and John Manning (Harvard Law School): A Dialogue on Constitutional and Statutory Interpretation (80 Geo. Wash. L. Rev. 1610 (2012)).  Here is the abstract:      

This dialogue addresses oft-discussed questions of statutory and constitutional interpretation.  The topics include the reasons for treating statutory text as determinative, the arguments for not treating legislative history as authoritative evidence of statutory meaning or legislative intent, the permissibility of excising absurd results and/or scrivener’s errors from a statute’s scope, the proper method of interpreting often-technical legal texts, and the differences between statutory and constitutional interpretation (with emphasis on the proper role for The Federalist in constitutional adjudication).

It's mostly about statutory interpretation, but there's this of note on constitutional interpretation (Scalia responding to a question about why he would use "legislative history" such as the Federalist Papers to interpret the Constitution although he refused to use legislative history to interpret statutes):

I cite The Federalist, but not because it's legislative history. I don't rely on the views of its authors because they were present at the writing of the Constitution-because since they wrote it, they must know what it means. That's not the reason. One of the authors, John Jay, did not attend the Philadelphia Convention.

Nor do I rely on The Federalist because the ratifiers must have known and agreed with it. (That's the kind of unrealistic assumption the practitioners of legislative history use.) I rely on it because it sets forth the views of intelligent, well-informed persons of the time, which are entitled to great weight on the basis of their experience and their closeness to the process. For similar reasons, I'll consider what Thomas Jefferson says, though he also was not present at the Constitutional Convention and though his words were most unlikely to have been before the ratifying conventions. His words won't be conclusive, but they may supply a persuasive indication of what the Constitution meant to the people at the time. That's quite different from legislative history.


More on Originalists Against Trump
Michael Ramsey

At The Atlantic, Conor Friedersdorf: The 'Originalists Against Trump' Manifesto.  He adds this argument: 

The few prominent originalists who support Donald Trump fail to understand not only the shortcomings listed [in the anti-Trump statement], but the catastrophe that will befall the originalist cause if the GOP rallies around a president as he subverts originalism. In that case, neither major political coalition would be defending the approach. It is far better, from an originalist perspective, to have one major party working on behalf of originalism, even if that party does not control the presidency for the next four years, than to have the only party that might plausibly advance that agenda be overtaken by a man who neither understands nor respects the Constitution.

There are plenty of reasons to oppose Trump but I am not persuaded that this is one.  True, if Republicans "rall[y] around [Trump] as he subverts originalism," that would be bad for originalism.  But I'm doubtful this will happen.  I don't think Republicans (especially Republican intellectuals and Republican congressional leaders) are likely to rally around Trump.  More likely, they will chart an independent course, perhaps in alliance with Democrats who would seek to use the Constitution to limit potential Trump excesses.

Further, I don't think it's ultimately a productive situation to have only one major party working for orignalism.  As the originalists-against-Trump statement says, originalism need not be a partisan issue.  But for it not to be, Democrats need to see some advantage to it.  Here's one advantage: it limits the power of the President.  A Trump presidency would highlight that point.  That might not be a bad thing.

(Thanks to Michael Perry for the pointer).


William Baude & Stephen Sachs: Originalism's Bite
Michael Ramsey

William Baude (University of Chicago Law School) and Stephen Sachs (Duke University School of Law) have posted Originalism’s Bite (forthcoming, Green Bag 2d) on SSRN. Here is the abstract:     

Is originalism toothless? Richard Posner seems to think so. He writes that repeated theorizing by "intelligent originalists," one of us happily included, has rendered the theory "incoherent" and capable of supporting almost any result. We appreciate the attention, but we fear we've been misunderstood. Our view is that originalism permits arguments from precedent, changed circumstances, or whatever you like, but only to the extent that they lawfully derive from the law of the founding. This kind of originalism, surprisingly common in American legal practice, is catholic in theory but exacting in application. It might look tame, but it has bite.

Bonus: only 6 pages long.


Originalists Against Trump
Michael Ramsey

A group of originalist scholars has posted a statement condemning Trump and his treatment of the Constitution. Here is Originalists Against Trump's full statement: 

We, the undersigned lawyers and scholars, are committed to the original meaning of the Constitution of the United States. We write to oppose the election of Donald Trump.

Our Constitution vests in a single person the executive power of the United States. In light of his character, judgment, and temperament, we would not vest that power in Donald Trump.

Many Americans still support Trump in the belief that he will protect the Constitution. We understand that belief, but we do not share it. Trump’s long record of statements and conduct, in his campaign and in his business career, have shown him indifferent or hostile to the Constitution’s basic features—including a government of limited powers, an independent judiciary, religious liberty, freedom of speech, and due process of law.

  • The President must take care that the laws be faithfully executed; he admires dictators as above the law.
  • The President must serve as Commander in Chief, enforcing rules for the government and regulation of the land and naval forces; he praises armed repression and makes light of the laws of war.
  • The President must hold a public trust on behalf of all Americans; he courts those who would deny to others the equal protection of the laws.
  • The President must preserve, protect, and defend the Constitution; he has treated the legal system as a tool for arbitrary and discriminatory ends, especially against those who criticize him or his policies.

We also understand the argument that Trump will nominate qualified judicial candidates who will themselves be committed to the Constitution and the rule of law. Notwithstanding those he has already named, we do not trust him to do so. More importantly, we do not trust him to respect constitutional limits in the rest of his conduct in office, of which judicial nominations are only one part.

Whatever reasons there might be to support Donald Trump, the Constitution is not among them.

We are under no illusions about the choices posed by this election—or about whether Hillary Clinton, were she elected, would be any friend to originalism. Yet our country’s commitment to its Constitution is not so fragile that it can be undone by a single administration or a single court. Originalism has faced setbacks before; it has recovered. Whoever wins in November, it will do so again.

Originalism is a commitment to the Constitution, not to any one political party. And not every person who professes support for originalism is therefore prepared to be President. We happen to see Trump as uniquely unsuited to the office, and we will not be voting for him.

We urge all like-minded Americans to vote their consciences in November. And we call on them, through their voices and their ballots, to deny the executive power of the United States to a man as unfit to wield it as Donald Trump.


Prof. Jonathan H. Adler
Case Western Reserve University School of Law

Prof. William Baude
University of Chicago Law School

Prof. Josh Blackman
Houston College of Law

Prof. Steven G. Calabresi
Northwestern University Pritzker School of Law

Oren Cass
Domestic Policy Director, Romney-Ryan 2012

Prof. Bernard J. Dobski
Assumption College

Prof. Richard A. Epstein
New York University School of Law
Hoover Institution
University of Chicago Law School

Prof. Christopher Green
University of Mississippi School of Law

Josh Hammer

Jameson Jones

Prof. Richard Kay
University of Connecticut School of Law

Prof. Benjamin Kleinerman
James Madison College, Michigan State University

Prof. Stephen F. Knott
Author of Washington and Hamilton: The Alliance That Forged America

Yuval Levin
The Ethics and Public Policy Center

Prof. Nathan B. Oman
William & Mary Law School

Prof. Michael Stokes Paulsen
University of St. Thomas School of Law

Prof. David G. Post
Temple University Law School (ret.)

Prof. Jeremy A. Rabkin
Antonin Scalia Law School, George Mason University

Prof. Stephen E. Sachs
Duke University School of Law

Kristen Silverberg
Former U.S. Ambassador to the European Union

Prof. Steven D. Smith
University of San Diego School of Law

Prof. Stephen F. Smith
Notre Dame Law School

Prof. Ilya Somin
Antonin Scalia Law School, George Mason University

Prof. Kevin C. Walsh
University of Richmond School of Law

Adam White
Hoover Institution

Prof. Greg Weiner
Assumption College

Prof. Keith E. Whittington
Princeton University

George F. Will

Prof. Michael P. Zuckert
University of Notre Dame

(Institutional affiliations are for identification purposes only; this statement does not represent the views of these or any other institutions. For further information or to be added as a signatory, please contact originalistsagainsttrump@gmail.com .)

Plus comments from signers Ilya Somin (here) and Josh Blackman (here).

Some people may infer that I support Trump from the fact that my name is not on the list.  They would be mistaken.  There are various reasons not to sign a group statement that have nothing to do with its conclusion.

While not conclusive, I would add this point: it's not clear to me that a Trump presidency would be bad for the Constitution or for originalism.  As the statement says, "our country’s commitment to its Constitution is not so fragile that it can be undone by a single administration."  I think we might emerge from a Trump presidency with renewed appreciation for our system of separation of powers, federalism, limited government, an independent judiciary and the rule of law.  In particular, I think people on the left might do so.  And if these values are to prevail, they must prevail on the left as well as the right.  So in truth the idea of President Trump does not worry me as much as it seems to worry many people.  (Plus it would be a big boost for people who write about the limits of executive power).  But that doesn't mean he gets my vote.


Justice Scalia and Congress’s Power to Regulate Immigration
Mike Rappaport

In a recent post, I noted that Justice Scalia has been criticized for departing from originalism in various areas.  But the positions that Justice Scalia took in many of these cases – including a prohibition on state affirmative action, limitations on regulatory takings, and protection of various state immunities, such as sovereign immunity and commandeering immunity – could have been defended on originalist grounds.  One area, however, where there is little to be said for Justice Scalia’s position has largely been ignored: the federal government’s power over immigration.

In Arizona v. United States, Justice Scalia started strong, initially questioning the federal government’s general authority to regulate immigration.  That also led him to recognize, again rightly in my view, that the states would then enjoy more power over immigration.

But unfortunately Justice Scalia then made an enormous mistake.  While he recognized that Congress first passed a general immigration law only in 1882, he wrote:

I accept that as a valid exercise of federal power—not because of the Naturalization Clause (it has no necessary connection to citizenship) but because it is an inherent attribute of sovereignty no less for the United States than for the States.  As this Court has said, it is an “‘accepted maxim of international law, that every sovereign nation has the power, as inherent in sovereignty, and essential to self-preservation, to forbid the entrance of foreigners within its dominions.’”  Fong Yue Ting v.  United States, 149 U. S. 698, 705 (1893). . . . That is why there was no need to set forth control of immigration as one of the enumerated powers of Congress, although an acknowledgment of that power (as well as of the States’ similar power, subject to federal abridgment) was contained in Art. I, §9, which provided that “[t]he Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight . . . .”

This is extremely weak.  First, what international law says about the United States is not the relevant question.  What is relevant is what the Constitution says about the matter, and the Constitution does not give Congress authority over immigration.  Congress does have the power to enforce offenses against the law of nations, but that would not confer power to regulate immigration (since immigration is not an offense under international law).  Second, there is no conflict with international law.  The entire immigration power would be shared between the federal government and the states, which would meet any international law expectations for the country.  Third as I have stated before, the Migration and Importation Clause does not acknowledge a general immigration power, but is best read as merely recognizing that Congress has some power over immigration through its Commerce Clause authority.  Congress could, for example, regulate ships that are coming from other nations and pass restrictions on immigration as to those ships.  Congress could also regulate immigration coming through the territories (which was a large part of the US in the early years) through its power to pass legislation as to the territories.

Claiming that the federal government possesses an immigration power through an inherent attribute of sovereignty is a stake in the heart of the enumerated powers and the Tenth Amendment.  This isn’t even reading an acknowledged power broadly, like the Commerce Power.  It is just making up a new power where there is no textual indication.  It is hard to believe that the Tenth Amendment does not forbid this.

Interestingly, Justice Thomas did not join Scalia’s opinion, even though Thomas largely agrees with Scalia on the preemption questions in the case.  One interesting possibility is that Thomas did not join Scalia because Thomas does not agree that the federal government has, as an original matter, the power to regulate immigration as part of its inherent sovereignty.

Scalia’s position in this case is especially unfortunate, as he had an alternative ground to found his position: judicial precedent.  Scalia could have simply argued that judicial precedent had recognized such a power for more than a century and therefore he would follow it.  But he did not do that; instead, he addressed the original meaning issue and failed miserably.

Even Homer nods, and one should not make too much about this mistake.  Justice Scalia was a giant and one can only expect so much.  But if we are going to discuss his problematic opinions, this was one of the worst from an originalist perspective.