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38 posts from November 2016


Randy Barnett on Supreme Court Nominees, Originalism, and Stare Decisis
Michael Ramsey

Randy Barnett in the Wall Street Journal: Two Questions for Donald Trump’s Supreme Court Nominees

On Trump’s commitment to originalism:

I’m pleased to see that President-elect Trump is echoing Scalia. Last week Mr. Trump’s transition team affirmed that he will nominate judges “who are committed to interpreting the Constitution and laws according to their original public meaning.” During the campaign Mr. Trump released a list of 21 potential candidates for Scalia’s seat. Those on the list with whom I am familiar would be sympathetic to originalism.

Discussing the issue of stare decisis:

The bigger unknown is where they stand on stare decisis—Latin for “let it stand.” This is the idea that precedents of previous Supreme Courts should be followed, even when they conflict with the original text of the Constitution. Here is where Scalia’s friend and colleague, Justice Clarence Thomas, comes to the fore.

Justice Thomas has been more willing to reject stare decisis and reverse precedents. Consider the New Deal-era case Wickard v. Filburn. In 1942 the Supreme Court held that Congress’s power to regulate interstate commerce extended to a farmer growing wheat to feed his own livestock. Sixty-three years later, that expansive reading of the Constitution’s Commerce Clause continues to hold.

Which leads to the two questions that the Trump administration should be asking of potential judicial nominees. First: Will they elevate precedent over the original meaning of the Constitution, thereby locking in a highly distorted reading of federal power? Or will they insist on interpreting America’s founding document and its amendments as they were written?

Second: Do they, like Justice Scalia, have the courage of their convictions—the intestinal fortitude to stand against the public’s demand for this or that outcome, and to do what they believe to be right? Or will they bend with the political wind to protect the “legitimacy” of the court?

And concluding:

This isn’t a matter of seeking judges who will reach conservative results versus liberal ones. It’s about adhering to the text of the Constitution, while letting the political chips fall where they may. (Justice Thomas would have reached a “liberal” result in Raich.)

The last point is particularly important to emphasize.  At the recent Federalist Society convention on Justice Scalia's jurisprudence, one of the themes was the underappreciated extent to which Scalia reached "liberal" results, including in free speech, fourth amendment privacy, and the rights of criminal defendants.


Perpetual Filibusters of SCOTUS Nominees
Andrew Hyman

I do not know if Democrats would filibuster any SCOTUS nominations during the coming administration, but I do expect the GOP Senate to unhesitatingly get rid of the perpetual filibuster for Supreme Court nominees, just like the Democrats did for lower court nominees.  Here are several (redundant) reasons to expect such action by the GOP Senate:

*Gehrke, Joel.  Reid: Dems would nuke Supreme Court filibuster, Washington Examiner (October 24, 2016).
*Fox, Lauren.
Harry Reid's Parting Shot: Dems Will Nuke The Filibuster For SCOTUS, Talking Points Memo (October 24, 2016).
*Kilgore, Ed.  
Harry Reid Promises Democrats Are Ready to End the Filibuster on Supreme Court Nominees, New York Magazine (October 24, 2016).
*Carney, Jordain.  Reid: I have set the Senate for nuclear option, The Hill  (October 24, 2016).

There are further reasons for eliminating (or "nuking") the perpetual filibuster of SCOTUS nominees.  First, a perpetual filibuster has never before killed a SCOTUS nomination (e.g. the Fortas filibuster was avowedly temporary and was cut short by his withdrawal after only a few days).  Second, a perpetual filibuster would prevent SCOTUS from ever changing much, and therefore would allow precedents to become entrenched without ever having to pass muster with a wide diversity of judicial philosophies.  

Some Resources About Judge Willett and the 20 Other Potential SCOTUS Nominees (with Updates)
Andrew Hyman

I have started a resource page that provides some information about the 21 people in the running for the SCOTUS nomination, and hopefully will add more resources as time allows.  I would like to identify some red flags for originalists to be aware of, and will mention one of them now (more later).  

It appears that Justice Don Willett of the Texas Supreme Court is a fascinating fellow with an interesting background that includes riding rodeo along with a stint as a professional drummer.  He has also been instrumental in setting up a terrific online resource called Consourse
that was discussed on this blog back in 2014.

Unfortunately (from my point of view), it appears that Judge Willett admires a doctrine that Justice Scalia abhorred, called substantive due process (or SDP, which was the stated rationale for 
Roe v. Wade among other cases).   In the 5-4 case of Patel v. Texas Department of Licensing and Regulation (2015), Justice Willett characterized non-enforcement of unenumerated rights as "absolute judicial deference to majority rule," which does indeed sound like a horrible sort of deference until you consider that the alternative may be absolute deference to judicial rule. Scholars still argue about whether SDP is consistent with originalism (I think not), and this dilemma calls to mind what Winston Churchill said in 1947: "Many forms of Government have been tried, and will be tried in this world of sin and woe. No one pretends that democracy is perfect or all-wise. Indeed it has been said that democracy is the worst form of Government except for all those other forms that have been tried from time to time.…"

Past nominations by Republican presidents already suggest great caution (Justice Souter is often mentioned in this regard), so I urge caution and patience now in filling the current vacancy.  In any event, rumor has it that only two people are seriously still in the running for the Scalia slot: Judge William Pryor and Judge Diane Sykes.  I hope to blog about them in the future.

MICHAEL RAMSEY adds:  This is a great resource; thanks to Andrew for putting it together.  The last link identifies the rumor with the just-concluded Federalist Society convention, which I attended; I can confirm that Judges Pryor and Sykes seemed to be the leading candidates.  Josh Blackman's updated poll now has the top five as Pryor, Kethledge, Sykes, Cruz, Willett -- but with Pryor and Sykes leading in the most recent votes received.

Re Judge Willett, the fact that he endorses a version of substantive due process should not necessarily mark him as a nonoriginalist, as Andrew acknowledges, nor make him a risky pick (though it does put him at odds with Justice Scalia on this point).  I'm reminded of my late colleague Professor Bernard Siegan, who was nominated by President Reagan to the Ninth Circuit and sadly rejected by the Senate: him was an outstanding originalist and also one of the inspirations of the modern economic due process movement (and would have been a great judge, despite my disagreements with him).

FURTHER UPDATE: Josh Blackman points out, rightly, that Judge Willett's Patel decision was under the Texas state Constitution and carefully distinguished the federal Constitution.  (The two constitutional provisions are, however, more or less parallel).

FURTHER UPDATE FROM ANDREW HYMAN:  Of course, Justice Willett’s opinion in Patel was technically based upon the “due course of law” provision of the Texas Constitution, but that concurring opinion made very clear his support for substantive due process under the federal constitution.  This was noted by the dissents in that case, and is also crystal clear from his own opinion in Patel, which includes this:

There are competing visions, to put it mildly, of the role judges should play in policing the other branches, particularly when reviewing economic regulations. On one side is the Progressive left, joined by some conservatives, who favor absolute judicial deference to majority rule. Judge Robert Bork falls into this camp. A conservative luminary, Bork is heir to a Progressive luminary, Justice Holmes, who also espoused judicial minimalism. Both men believed the foremost principle of American government was not individual liberty but majoritarianism.

While Justice Willett distinguished the federal Constitution from the Texas one, he did not suggest that the two corresponding due process clauses should ideally be interpreted differently.  Quite the opposite.  Majoritarianism is one of the great defenses that has ever been devised to protect liberty, and majorities are responsible for creating the constitutional clauses that courts are sworn to obey.  A majority of the citizenry, or indeed a majority of legislators, will often defend liberty much more appropriately than would a majority of judges left to their own devices.  And when mistakes are inevitably made, legislation is much easier for the citizenry to correct than judicial edicts.

Seth Barrett Tillman on Foreign Gifts to Presidents
Michael Ramsey

In the New York Times' Room for Debate, Seth Barrett Tillman: Constitutional Restrictions on Foreign Gifts Don’t Apply to Presidents.  From the introduction:

President-elect Donald J. Trump has many extensive and diverse business interests, including some abroad, and some of his interests involve foreign government entities. In order to ensure against ethical conflicts, both real and perceived, Trump should place his interests in those holdings beyond his personal control, i.e., into an independently managed blind trust. Such a move would be wise and consistent with America’s best political traditions and practices.

Still the Constitution does not always demand that we and our government act wisely. And that is the situation here. The Foreign Gifts Clause provides that “no person holding any office of profit or trust under them (i.e., the United States) shall, without the consent of the Congress, accept of any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state.”

Does the Foreign Gifts Clause and its office under the United States language apply to the presidency? There are three good reasons to believe that it does not. ...

(All good originalist reasons, too).

Zephyr Teachout (Fordham) has the other view: Trump’s Foreign Business Ties May Violate the Constitution (with contrary evidence from Presidents Tyler and Van Buren).


Tuan Samahon: No Praise for Process Federalism
Michael Ramsey

Tuan Samahon (Villanova University - School of Law) has posted No Praise for Process Federalism: The Political Safeguards Mirage and the Necessity of Substantial, Substantive Judicial Review (Villanova Law Review, Vol. 61, No. 3, 2016) on SSRN. Here is the abstract:      

In this Essay on the occasion of the Villanova Law Review's 60th anniversary, I critique process federalism and its persistent claim that the national political process provides any kind of adequate representation of states' interests. Even modest versions of process federalism, such as Professor Ernie Young's formulation, must rely on a tenuous claim that states are represented in the national political process. Since the elimination of state legislative election of U.S. senators by the 17th Amendment, that predicate representation has been absent, both actually and virtually. Claims to the contrary fail on closer inspection. Accordingly, the process theorist's faith in the national political process rings hollow and leaves room for very substantial doubt that process federalism could ever sufficiently police the scope of congressional power and the appropriate federal balance.

Moreover, failures in the national political marketplace for popular loyalty abound. Non-transparency, popular political ignorance, and inefficiency at the modern senatorial ballot box all but assure resort to the political process will almost never safeguard federalism adequately. Accordingly, substantial, substantive judicial review continues to remain necessary to safeguard what the political process will not -- the structural value of federalism.

I agree.  Plus, as noted earlier, my colleague Laurence Claus has an outstanding forthcoming paper suggesting that the political protections of federalism weren't all that robust in the original design even before the 17th Amendment.


Jeremy Waldron: What a Dissenting Opinion Should Have Said in Obergefell v. Hodges
Michael Ramsey

Jeremy Waldron (New York University School of Law) has posted What a Dissenting Opinion Should Have Said in Obergefell v. Hodges on SSRN.  Here is the abstract:      

This is my contribution to a project organized by Jack Balkin under the heading “What Obergefell v. Hodges Should have Said.” A number of legal scholars participated as though they were Supreme Court justices deciding Obergefell. My contribution is a dissent. Although the outcome of the case was an improvement in the institution of marriage, it was not appropriate for the courts to make such a fundamental change. Marriage as an institution belongs in each state to the people of that state and fundamental changes in the institution should be made legislatively (as they have been in almost every other country in the world that has established marriage equality). This is not just an a fortiori consequence of a general hostility to judicial review. Even if one accepts that judicial review of legislation is the appropriate remedy for a case like Loving v. Virginia, there are considerations that sharply differentiate the decision in that case from the transformation of marriage that took place as a result of the Obergefell decision.


2016 Federalist Society Lawyers Convention (with Trump Short-Listers)
Michael Ramsey

This year’s Federalist Society Lawyers Convention is being held today through Saturday in Washington DC; the theme is “The Jurisprudence and Legacy of Justice Scalia.”  Speakers include Justices Alito and Thomas, plus (it appears) at least nine of the Supreme Court short-listers: Judges Stephen Colloton, Allison Eid, Thomas Hardiman, Raymond Kethledge, Joan Larsen, William Pryor, David Stras, Diane Sykes, and Donald Willett.  (via Jonathan Adler at Volokh Conspiracy, who also links to this fun site predicting the nominee -- current favorites are Larsen, Sykes and Pryor).  

Also speaking are Senators Ted Cruz and Ben Sasse; Governor Nikki Haley; former solicitor general Paul Clement; and too many law professors to count.  One thing worth noting is the Society's ability to attract liberal as well as conservative law professors, including for example Akhil Amar (Yale), Rachel Barkow (NYU), William Eskridge (Yale), Abbe Gluck (Yale), Deborah Rhode (Stanford), and Stepehen Vladeck (Texas).

UPDATE:  Josh Blackman is polling on who the nominee will be -- current leaders are Kethledge, Cruz, Prior, Sykes and Willett.



Eric Segall: Who Is Originalism For?
Michael Ramsey

At Dorf on Law, Eric Segall: Who Is Originalism For?  From the conclusion:

Judge Bork's originalism provided a rule for judges in [hard] cases. The government wins absent clear evidence of unconstitutionality as shown by text or history. But few modern originalists, including Justices Scalia and Thomas, as well Professors Randy Barnett, Jack Balkin, and Will Baude (all self-styled originalists), take that position. Moreover, as far as I can tell, Professor Larry Solum's work does not offer this kind of deference either.

Solum and Barnett might respond that I am confusing the semantic meaning of the text with the legal meaning. They have argued that what the words meant to the people at the time is a very different question than how judges should apply those words to current modern problems, which requires what they call "constitutional construction." The problem is that as I, and many other people have observed, this dichotomy between semantic and legal meaning renders originalism indistinguishable from living constitutionalism. Moreover, if, as Randy argues, originalism often "runs out" in hard cases, then the question again becomes who is originalism for?

The sad answer, I think, is that originalism is a marketing device for judges and politicians (like the President-elect, Ted Cruz, and others) to use to mask personal judgments about what is best for society today. For scholars, it is a means of discussing constitutional law in a way that appears academic and theoretical but at the end of the day doesn't describe accurately how judges decide cases or likely ever will decide cases. I will have more to say about both of those claims in future blog posts, articles, and my book Originalism as Faith. But for now, it is enough to suggest that originalism without deference is absurd, and if I'm right that Supreme Court Justices (life-tenured government officials who have enormous power) will inevitably do what they think is best, as has been the case with Justice Scalia and Thomas, then we must ask seriously who is originalism for?

An interesting and challenging post.  I would say (although it is not a complete response) that there is an intermediate position between Bork-ian deference and Barnett-ian or Balkin-ian New Originalism.  It is that the government should get deference when the originalist sources are inconclusive, but that "inconclusive" is applied narrowly to mean the originalist arguments are close to evenly matched, not just that there is some originalist evidence on both sides.  I think this might describe Scalia (at his best), and perhaps others; so originalism might be for them.


President Trump and International Agreements: A Recap
Michael Ramsey

Because it seems more important now, here is a recap of my assessment of the President's ability to withdraw from some controversial international agreements (see previous post here).

(1)  The Iran nuclear deal (the "Joint Comprehensive Plan of Action" or JCPOA).  This agreement is nonbinding.  The Obama administration has specifically described it in that way, and that is the only way it is even arguably constitutional.  (See my discussion here).  It is not actually an agreement; it is (as its title declares) a "joint plan of action."  As a result, President Trump can decide to adopt a different plan of action regarding Iran.  (Of course, other countries that adopted the prior plan of action are under no obligation to change their approach, and it may be doubtful how effective a unilateral change will be).

Some people have argued that the Iran deal has become binding on the United States as a matter of international law as a result of UN Security Council Resolution 2231, which endorses the deal.  If that were true, it would amount to an extraordinary bit if constitutional bad faith by the U.S. President -- that is, to negotiate and accept a deal as expressly nonbinding in order to satisfy U.S. constitutional requirements, and then "launder" it through the Security Council (where the U.S. has a veto) to turn it into a binding agreement.  If this is what occurred, no subsequent U.S. President (or Congress) should accept any purported obligation achieved in this way.  However, President Obama can't be charged with bad faith here: the administration denied that the resolution would convert the deal into a binding agreement, and indeed it doesn't.  The resolution uses only nonbinding language -- for example, item 1 "Endorses the JCPOA and urges its full implementation on the timetable established in the JCPOA."

In sum, President Trump may constitutionally withdraw from the Iran deal if he chooses.

(2)  The Paris climate agreement.  This agreement, unlike the JCPOA, is binding as a matter of international law.  (Again, see my discussion here).  However, it is not part of the supreme law of the land in the Constitution's Article VI, because it was not approved as a treaty by the Senate nor incorporated into a statute by Congress.  Thus President Trump would have a good argument that U.S. law allows him to repudiate it, even though that would violate international law.  (He can also give notice of U.S. withdrawal pursuant to the agreement's terms, but -- per the agreement -- not for three years).

Some people might argue that, even if the agreement is not part of the supreme law of the land, it is nonetheless a law that the President must faithfully execute under the Constitution's take-care clause.  (I have argued that the take care clause extends to customary international law obligations; I'm less sure it extends to obligations in nontreaty agreements).  If that's right, then President Trump would have to argue that the Paris agreement is unconstitutional (because it should have been approved as a treaty).  This is a plausible argument that I've made in prior posts: if the agreement imposes material long-term obligations on the U.S., then the Constitution requires it to be approved as a treaty.

The Obama administration has argued that the agreement is constitutional (within the President's independent power) because all of its material obligations are nonbinding.  If so, President Trump need not repudiate the agreement; he can simply decline to comply with the nonbinding parts of it.  Nothing in U.S. constitutional law even arguably obligates him to comply with nonbinding commitments made by a prior President.

In sum, the Paris agreement should not be a material barrier to President Trump because it is not part of Article VI supreme law, and (in the alternative) because it either imposes no material obligations or is unconstitutional.

(3) The Trans-Pacific Partnership.  This agreement has been signed but not ratified.  Assuming no action is taken on it prior to the inauguration, President Trump is under no obligation to submit it to Congress and he can withdraw the U.S. signature if he chooses (all as part of the executive power over foreign affairs).

(4) NAFTA (and other trade deals).  This one hurts, because I think NAFTA has been enormously beneficial to the U.S. and to world trade.  But NAFTA provides that the U.S. (or any other party) may withdraw on six months' notice.  In my assessment, the President's foreign affairs power includes the power to withdraw the U.S. from the obligations of international agreements in accordance with their terms.  I think this power extends even to international obligations incorporated in a treaty, and so part of the supreme law of the land; NAFTA is not so incorporated, so the argument for the President is even stronger.  (For some objections and responses, see my prior post).

Related thoughts from Julian Ku here: How President Obama Gave President-elect Trump the Power to Undo the Iran Deal and Paris Agreement.


Josh Blackman: Gridlock (with Response by Josh Chafetz)
Michael Ramsey

In the current issue of the Harvard Law Review, Josh Blackman: Gridlock (130 Harv. L. Rev. 241 (2016)).  From the introduction:

As Congress becomes more polarized, it becomes less able to resolve major questions affecting social, economic, and political issues. With his legislative agenda frustrated, the President takes executive action on those questions Congress either ignored or rejected by adding expansive glosses to generic delegations of authority. The courts are then called upon to assess whether the line the executive drew was within his delegated authority. But these disputes can be resolved on the more neutral principle of whether the agency can take such novel actions in the first instance. If the answer is no, there is no need for judges to draw that difficult line. These “major questions” should be returned to the political process — which is where they should have been decided to begin with.

My goal in this Comment is not to explain whether DAPA complies with the Immigration and Nationality Act (INA), or whether the contraception mandate’s accommodation violates the Religious Freedom Restoration Act of 1993 (RFRA). In fairness, the Court didn’t either. (Texas and Zubik — combined, only ten slip pages — are likely the shortest corpus ever for a faculty comment in the Harvard Law Review’s annual Supreme Court issue.) Rather, I use these two cases to illustrate the relationship between gridlocked government and the separation of powers. Part I applies this framework to Zubik v. Burwell to demonstrate why congressional silence does not vest the executive branch with the awesome authority to make foundational determinations affecting conscience. Part II analyzes United States v. Texas to explain how congressional gridlock does not license the expansion of the executive’s authority. I conclude with a preview of how these cases are likely to be resolved on remand.

With this response in the Harvard Law Review Forum by Josh Chafetz: Gridlock? (130 Harv. L. Rev. F. 51 (2016)).  It begins:

Its title notwithstanding, Professor Josh Blackman’s Comment is not really about gridlock. It makes no attempt to ask what constitutes gridlock or how we might identify it, nor does it offer much by way of a theory of how we ought to respond to gridlock, if indeed we are experiencing it. Instead, Blackman takes the opportunity presented by two recent executive actions of which he disapproves to advance a certain theory of administrative law, one in which the “major questions doctrine” plays an increasingly outsized role. But the reasons Blackman gives in support of this new direction in administrative law do not stand up to scrutiny.