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33 posts from December 2017


Josh Blackman on the President and Obstruction of Justice
Michael Ramsey

At Josh Blackman's Blog: Obstruction of Justice and the Presidency: Part III.  Here is the introduction:

In  of this series, I concluded that the “president cannot obstruct justice when he exercises his lawful authority that is vested by Article II of the Constitution.” For purposes of either a criminal conviction, or an impeachment trial, I wrote, “the question of whether the president obstructs justice will turn on whether his actions are supported by Article II itself.”

 advanced a framework to understand how the Constitution’s negative limitations on Congress’s powers and positive vestings of power to the president both limit the scope of what can constitute “high Crimes and Misdemeanors.” With respect to the negative limitations, if the Constitution limits Congress’s power over certain areas—such as the religious test clause or the free speech clause—Congress lacks the power to define “high Crimes” on those bases. In a similar fashion, because the Constitution disables the president from, for example, violating a person’s life, liberty, or property, without due process of law, such conduct could give rise to “high Crimes.” On the flip side, when the Constitution grants the president and vice president certain positive powers, Congress cannot then define “high Crimes” on those bases.

This third installment will consider how “obstruction of justice” can serve as the predicate for “high Crimes,” with respect to the impeachments of Presidents Richard Nixon and Bill Clinton. Finally, this entry will discuss how the positive vestings of power over foreign affairs in President Trump, combined with his absolute power to remove a principal officer, could serve as the basis for his defense against obstruction of justice charges, either in a criminal court or a court of impeachment.


Cass Sunstein on Jud Campbell on the First Amendment
Michael Ramsey

At Bloomberg View, Cass Sunstein (Harvard): What If the Founders Had Free Speech Wrong? (commenting on Jud Campbell, Natural Rights and the First Amendment (127 Yale L.J. 246 (2017)).  Here is the introduction:

According to the most famous words of the First Amendment, “Congress shall make no law . . . abridging the freedom of speech.” But what did the founders understand those words to mean?

 A remarkable answer comes from Jud Campbell, a University of Richmond law professor, who has just produced what might well be the most illuminating work on the original understanding of free speech in a generation. In brief, Campbell argues that the founders meant to protect a lot less speech than most of us think.
And summarizing Professor Campbell's paper: 

In [Campbell's] account, [the founders' world] was an altogether different political world, and their concepts and principles were not at all like ours.

Campbell starts with the claim that much of the founders’ thinking was organized around the idea of “natural rights” -- rights that people could have without any government at all. Unlike the rights to a jury trial and to due process of law, the right to speak counted as a natural right.

But this didn’t mean that free speech was an absolute, or even that courts should protect it. Far more modestly, it meant that speech could be restricted only to protect the public good, and only when the people’s representatives voted in favor of the restriction.

Campbell offers two important qualifications. First, the founding generation opposed licensing of the press. In that way, they sought to forbid prior restraints on what members of the press could say (without necessarily forbidding subsequent punishment through criminal trials).

Second, they thought that (in Campbell’s words) “well-intentioned statements of one’s views were immune from regulation.” That means that so long as your speech was not meant to mislead or harm others, you were protected.

And from the conclusion:

Campbell’s research raises serious questions for “originalists” – those who believe, with Justices Clarence Thomas and Neil Gorsuch, that the meaning of the Constitution is settled by the original understanding of its terms. Do we really want to go back to the 18th-century view of freedom of speech?


John Manning: Justice Scalia and the Idea of Judicial Restraint
Michael Ramsey

John F. Manning (Harvard Law School) has posted Justice Scalia and the Idea of Judicial Restraint (115 Mich. L. Rev. 747 (2017)) on SSRN.  Here is the abstract:

The book review of Antonin Scalia, A Matter of Interpretation (1997), suggests that Justice Scalia’s commitment to textualism and originalism may be rooted as much in a scruple against judicial discretion as in claims of democratic legitimacy.   In particular, Justice Scalia structured A Matter of Interpretation around a criticism of the “common law” method, which he saw as vesting excessive discretion in judges.  He went on to argue that interpretive approaches such as statutory purposivism and living constitutionalism raise concerns, in large part, because they invite judges to behave as common law judges.   Connecting this theme with some of Justice Scalia’s well known opinions, the book review adds that Justice Scalia’s “anti-discretion principle” also explains some other aspects of his judicial behavior, such as his tradition-based approach to substantive due process, his general antipathy to balancing tests, and his views on stare decisis.  The book review concludes by identifying some puzzles arising out of Justice Scalia’s “anti-discretion principle” and offers some preliminary thoughts about why his approach may have gained traction despite those puzzles.


Kristen Eichensehr: Courts, Congress, and the Conduct of Foreign Relations
Michael Ramsey

Kristen Eichensehr (University of California, Los Angeles (UCLA) - School of Law) has posted Courts, Congress, and the Conduct of Foreign Relations (University of Chicago Law Review, Vol. 85, 2018 (forthcoming)) on SSRN.  Here is the abstract:

In the U.S. constitutional system, the President generally conducts foreign relations. But not always. In recent years, the courts and Congress have repeatedly taken steps to interact directly with foreign governments. “Non-executive conduct of foreign relations” occurs when the courts or Congress engage in or take actions that result in the opening of a direct channel of official communications between the U.S. non-executive branch and a foreign executive branch. Non-executive conduct of foreign relations raises serious constitutional questions, but to date there is no clear rubric for analyzing the constitutionality of the judiciary’s or Congress’s actions. Moreover, non-executive conduct of foreign relations is likely to become more frequent due to changes in technology, foreign governments’ increasing sophistication about the U.S. government, hyperpartisanship in the United States, and what might be called the “Trump effect.” 

Building on Justice Jackson’s iconic tripartite framework from Youngstown Sheet & Tube Co. v. Sawyer, this Article proposes a converse Youngstown framework for determining when non-executive conduct of foreign relations is constitutional. The converse Youngstown framework judges the constitutionality of the courts’ or Congress’s actions in light of executive authorization or condonation (Category 1), executive silence (Category 2), or executive opposition (Category 3). The converse Youngstown framework offers significant advantages over the current ad hoc approach to analyzing non-executive conduct of foreign relations, and it avoids some of the pitfalls that critics have identified with traditional Youngstown analysis. First, it more accurately reflects the fact that the President isn’t the only actor who exercises foreign relations initiative. Second, it avoids much of the indeterminacy that plagues the traditional Youngstown analysis. Finally, it simplifies the constitutional analysis of non-executive conduct of foreign relations by explaining why easy cases are easy, allowing courts to engage in constitutional avoidance in some cases, and showing how Congress and the courts may sometimes trump the executive, even in Category 3.

Bonus: The Originalism Blog is cited in footnote 108.

(Thanks to Seth Barrett Tillman for the pointer).


Mark Kende: The Unmasking of Balancing and Proportionality Review in U.S. Constitutional Law
Michael Ramsey

Mark Kende (Drake University Law School) has posted The Unmasking of Balancing and Proportionality Review in U.S. Constitutional Law (25 Cardozo Journal of International and Comparative Law (JICL) 417 (2017)) on SSRN.  Here is the abstract:

U.S. constitutional law is frequently described as formalistic. For example, the U.S. is one of the few nations where originalism is taken seriously as an interpretive method. This method sometimes involves searching through 18th Century American dictionaries to see how key words in the Constitution were defined to answer questions today. Moreover, conservative politicians constantly beat the drum against “judicial activism,” supposedly seeking a strictly construed Constitution. Conservative scholars and judges can be part of this chorus (though sometimes they are the real judicial activists). Alexander Bickel highlighted the “passive virtues.” Herbert Wechsler doubted the correctness of Brown v. Board of Education because it was not based on “neutral principles.” Free speech case law is supposedly categorical, and equality law purportedly depends on three scrutiny levels. Foreign law’s influence is frowned upon by several Justices. And the U.S. Constitution supports individualistic liberty with no affirmative socio-economic rights, only negative civil and political rights,as well as strong principles of state sovereignty. This symposium paper, however, seeks to unmask the flexibility, functionalism and other factors that lie behind this pretense of formalism. 

Specifically, this paper insists that American constitutional law often is, and should be pragmatic, purpose oriented, and contextual. Facts and evidence should matter, not out of date abstractions. Indeed, many of those who defend the formalist conservative view are actually masking flexible balancing analysis and proportionality review. Moreover, the paper argues that unmasking and openly balancing would make U.S. constitutional law more coherent and enhance the U.S. Supreme Court’s fading reputation.

(Via Larry Solum at Legal Theory Blog)


The Original Meaning and the Carpenter Case: Establishing Joint Ownership of Customer Records
Mike Rappaport

In my last post, I discussed whether the federal statute conferring protection of customer cell phone information, including location information, is sufficient to render such information a paper or effect.  My answer is that, based on my limited research, I am a bit skeptical that such information constitutes a paper or effect.  The terms paper and effect do not seem to refer to information, but to other things.

But there is a better way to protect this information, which might be accomplished by contract, state statute, or federal statute.  Imagine that a cell phone company and its customers reached an agreement that specified that all of the cell phone company’s records about the customer constituted the joint property of the customer and the company.  The agreement might provide that the records (and the information contained within them) should not be disclosed to third parties, except as allowed by the agreement.  The agreement might allow the cell phone company to use the records for certain purposes, such as to collect on a bill from the customer.

Would this agreement render the records a paper or effect?  There is a strong argument that it would.  The focus would be on the records themselves.  If the records were in paper form, then they would clearly be a paper.  If the records were in electronic form, they might constitute a paper or effect.  If the records were on a memory stick, they clearly would be an effect.

What if the records were on a hard drive contained in a computer?  The hard drive by itself again would seem to clearly be an effect.  But would a hard drive that is connected to a computer or to a server be an effect?  If the computer or server was personal property that could be moved – which it would seem to be – then the computer or server would be an effect.  But would the portion of the computer that contained the records be an effect?  It is not clear why not.  It is not clear why the fact that the records are part of a larger piece of property that contains other people’s property would mean the records are not an effect.

While this result could be accomplished through a contract between the cell phone company and the customer, it could also be produced through legislation by either a state or the federal government.

There is, of course, no obligation on the part of Congress or the states to provide this protection.  But the private parties and the individual states could choose to do so.

It might be argued that Congress could prevent this from occurring.  For example, the government reads the existing statute providing protection to customers as allowing an exemption for government search without a warrant.  But such a statute would be problematic if it applied to what would otherwise be a paper or effect.  It would be problematic for Congress to pass a statute that provided that owners of certain types of property were not entitled to Fourth Amendment protection.  Similarly, there would be constitutional issues if Congress sought to prohibit customers and cell phone companies from entering into arrangements that would provide Fourth Amendment protections to those customers.

Judge Brett Kavanaugh on Chief Justice Rehnquist and the Constitution
Michael Ramsey

The American Enterprise Institute's 2017 Walter Berns Lecture: Judge Brett Kavanaugh, From the Bench: The Constitutional Statesmanship of Chief Justice William Rehnquist.  From the introduction:

It is sometimes said that the Constitution is a document of majestic generalities. I view it differently. As I see it, the Constitution is primarily a document of majestic specificity, and those specific words have meaning. Absent constitutional amendment, those words continue to bind us as judges, legislators, and executive officials.

And if I can be so bold as to suggest an initial homework assignment from my talk today, it is this: In the next few days, block out 30 minutes of time and read the text of the Constitution word for word. I guarantee you’ll come away with a renewed appreciation for the Constitution and for its majestic specificity.

We revere the Constitution in this country, and we should. We also, however, must remember its flaws. And its greatest flaw was the tolerance of slavery. That flaw cannot be airbrushed out of the picture when we celebrate the Constitution. It was not until the 1860s, after the Civil War, that this original sin was corrected in part, at least on paper, by ratification of the 13th, 14th, and 15th Amendments to the Constitution.

But that example illustrates a broader point as well. When we think about the Constitution and we focus on the specific words of the Constitution, we ought to not be seduced into thinking that it was perfect and that it remains perfect. The Framers did not think that the Constitution was perfect. And they knew, moreover, that it might need to be changed as times and circumstances and policy views changed.

And so they provided for a very specific amendment process in Article V of the Constitution. The first 10 amendments, as we all know, came very quickly after the new Congress met in 1789. And those amendments were ratified in 1791. The 11th and 12th Amendments followed soon thereafter, and that process has continued.

Indeed, the amendments have altered fundamental details of our constitutional structure. The 12th Amendment changed how presidents and vice presidents are elected. The 22nd Amendment changed how long presidents can serve. The 17th Amendment altered how the Senate is selected, changing it from a body selected by state legislatures to a body directly elected by the people. The 13th, 14th, and 15th Amendments altered the autonomy of the states and created new constitutional rights and protections for individuals against states.

Many think we could use a few more constitutional amendments: term limits for Supreme Court justices, term limits for members of Congress, an equal rights amendment, a balanced budget amendment, abolition of the death penalty. Different people have different views. But here, as elsewhere, the Constitution already focused on the specific question that lies at the foundation of this and so many other constitutional disputes: Who decides?

In this instance, the question is this: Who decides when it is time to change the Constitution? Who decides when it is time to create a new constitutional right or to eliminate an existing constitutional right or to alter the structure of the national government? The Constitution quite specifically tells us that the people decide through their elected representatives. An amendment requires the approval of two-thirds of both houses of Congress as well as three-quarters of the states.

But the amendment process is slowed in part because it is so difficult to garner the congressional and state consensus needed to pass constitutional amendments. Because it is so hard, and because it is not easy even to pass federal legislation, pressure is often put on the courts and the Supreme Court in particular to update the Constitution to reflect the times.

In the views of some, the Constitution is a living document, and the Court must ensure that the Constitution adapts to meet the changing times. For those of us who believe that the judges are confined to interpreting and applying the Constitution and laws as they are written and not as we might wish they were written, we too believe in a Constitution that lives and endures and in statutes that live and endure. But we believe that changes to the Constitution and laws are to be made by the people through the amendment process and, where appropriate, through the legislative process—not by the courts snatching that constitutional or legislative authority for themselves.

He gets around to Chief Justice Rehnquist later.

(Via How Appealing).


Akhil Amar on the President and Obstruction of Justice
Michael Ramsey

A transcript of Akhil Amar's appearance on Hugh Hewitt's radio show, here: Yale Law School Professor Akhil Amar On Whether A Sitting President Can Be Prosecuted, Indicted Or Even “Obstruct Justice”.

On the first point:

Let’s take the possibility of federal prosecution. Well, the Constitution makes the president the chief executive of the federal government. Prosecution is an executive branch function. And executive branch powers are vested by the first sentence of Article II, the presidential article, in a president. What’s more, and the people in the executive branch basically work for him. That’s why he’s chief executive as to the same way he’s commander-in-chief in the military. You know, he’s the ultimate generalissimo. You say, well, what about Bob Mueller? Bob Mueller, Constitutionally, is what’s called an inferior officer under Article II, Section 2, Paragraph 2, which your audience can look at, because the Constitution is very readable itself. The Constitution says that certain officers can be basically picked by low level officials, but aren’t picked by the president, aren’t confirmed by the Senate. But those officers like Bob Mueller, who wasn’t picked by a president, wasn’t confirmed by a Senate, has to be inferior officers. That’s the word the Constitution uses. Now it’s really hard to be inferior if you’re indicting a president of the United States and possibly undoing a national election. So two different reasons when it comes to federal prosecution, but this can’t happen, because one, the president is the chief executive, and everyone in the executive branch ultimately answers to him, and second, and more pointedly, Bob Mueller is an inferior officer, and he wouldn’t be, he was never confirmed by the Senate, never picked by a president, he would not be inferior if he could do this. And by the way, I not only have Joseph Story on my side on that, I have Justice Scalia also, who said that way back when in a case in the 1980s called Morrison v. Olson. That leaves the possibility of state prosecution. If federal prosecution against an un-consenting president really are unavailing, what about state prosecutions? Here, the basic argument is an argument of federalism, of structure. In a nutshell, we all elect a president. I voted against President Trump, but elections matter. We the people of the United States made a decision, and I wouldn’t want any individual state to be able to undo that election. What’s popular in Massachusetts is unpopular in Alabama, and the vice versa. The president has to represent all of us, and so I wouldn’t want the people of any given state to be able to undo a presidential election. And a state prosecution would involve a local jury, a local grand jury. It would be the part overturning the whole. It would be as if, let’s say, in the 1860s North Carolina could have indicted Abraham Lincoln on some fabricated charge and tried to demand that he go down to the Carolinas for trial or something when he had other things to do, namely win the Civil War.

Agreed as to federal prosecution.  I would say that it's not a matter of an atextual presidential immunity; it's because the President can direct the Justice Department not to prosecute.  I think that is what Professor Amar is saying.  I'm  little less sure on state prosecution.  If the President violates a state law -- for example, murders someone -- what provision in the Constitution requires the state not to prosecute?  Professor Amar says it is a matter of "structure," and perhaps that's right, but that type of structural argument starts getting a little beyond the text for my taste.

As to the second point: 

I’m closer to Alan [Dershowitz]'s view. He doesn’t, I think, when he’s best understood, say that there could never be an obstruction of justice under, you know, where bribery or something else. What he does rightly remind us is frankly the rules are different for presidents, because, for example, the president has the pardon power. The president can decide that he actually doesn’t think, for example, marijuana laws in Colorado should be enforced the same as Barack Obama, or that draft dodgers should be prosecuted the same as Jimmy Carter. So the president has a unique role in the criminal justice system. He’s allowed to actually decide whom he wants as the head of the FBI, and he’s allowed to have enforcement priorities. Focus on A, B and C, and not D, E and F. And so unless one actually has specific evidence of a certain kind of corruption, of bribery or something like that, it’s not enough to merely state oh, he didn’t like Jim Comey, and he didn’t like him because of Comey’s enforcement priorities. The president is allowed to have his own enforcement priorities, and that in and of itself does not amount to obstruction of justice absent some specific evidence of corruption and overt acts. And that’s, I think, Alan’s argument sort of most, sort of carefully reconstructed. So I’m probably closer to Alan’s than my dear friend, Larry Tribe on this.

Agreed (as regular readers know).  This follows from the propositions that (a) the executive power is vested in the President (as Professor Amar says elsewhere) and (b) that the executive power includes prosecutorial discretion (as he says in this passage).

RELATED: At Josh Blackman's Blog, Obstruction of Justice and the Presidency: Part II.  (But part III is going to be the big conclusion).


James Lucas on Amending Article V
Michael Ramsey

At NRO, James Lucas: The Supreme Court versus the Constitution.  The most interesting point is the final one: 

An invigorated Article V should be central to the program of those who respect the Constitution. Professor Randy Barnett summarized originalism as the view that “the meaning of the Constitution must remain the same until it’s properly changed.” (My own preferred summary is that “the Constitution says what it means and means what it says,” but we’ll go with the professor for now.) Originalism arose as a response to the unrestrained judicial amendment of the Warren and Burger courts, so it is not surprising that it has emphasized the first part of the summary — the meaning of the Constitution must remain the same.

However, those who respect the Constitution need to recognize that its vitality depends on its ability to respond to changing circumstances. If we are to decisively rebut the arguments for judicial amendment, we need to attend to the second part of Professor Barnett’s summary — proper change. Article V is no longer fulfilling its function of providing a democratic, deliberative process of constitutional change. This has permitted the Supreme Court to usurp the rights of the people and their elected legislatures and has left us with a Constitution riddled with imprecise, complicated judicial amendments. A reformed, reinvigorated Article V will be the definitive and democratic response to the Supreme Court’s usurpation of that article’s vital functions and confirm the right of the American people to determine the meaning of their Constitution.

As to specific reforms: 

The most important reform would be to allow the states to initiate amendment proposals without having to go through a convention. Article V provides that amendments may be proposed by a convention called by Congress “upon the Application of the Legislatures of two-thirds of the several States.” Such a convention has never occurred, nor is one likely (despite the valiant ongoing efforts of some conservative activists). The fundamental impediment was pointed out by James Madison at the constitutional convention of 1787, when the convention mechanism was added on the second-to-last day in the rush to conclude. Madison noted that Article V does not provide any procedures for such a convention. Consequently, a host of critical issues are left unresolved, such as whether an Article V convention could be limited as to subject, how votes would be counted, how many votes would be required, what would constitute a quorum, who would pay for it, how long it would sit, and so forth.

Yet at the 1787 convention, all agreed that the states should have the same power as Congress to initiate amendments. As Madison wrote in Federalist No. 43, Article V was intended to “equally enable the general and the State governments to originate the amendment of errors, as they may be pointed out by the experience on the one side, or the other.” Eliminating the convention requirement and allowing a small group of states (I have proposed five) to initiate an amendment would empower the states and enable the people to consider many widely supported amendment proposals that are now hopelessly stuck in a dysfunctional Congress. Under this plan, if five states passed an amendment within a period of four months, the other states would have nine years to provide the necessary 29 additional approvals to reach two thirds and make the amendment part of the Constitution.

Another reform would be to slightly lower the approval thresholds, which, as noted above, are the highest in the world. There is no indication that the Framers wanted to make approval as difficult as it is. Since only 12 states attended the 1787 convention, the difference between two-thirds and three-fourths was very small (just one state, in fact). No one considered what the impact of a three-fourths threshold would be when there were 50 states. Most proposals to reform Article V reduce that requirement to two-thirds. Because of the great disparity in state populations, I have also proposed adding a requirement that the ratifying states must have a majority of the nation’s population.

Note: James Lucas is the author of Timely Renewed: Amendments to Restore the American Constitution (2010) and Are We The People? How We the People Can Take Charge of Our Constitution (2012).

The Original Meaning and the Carpenter Case: Congress’s Protection of Customer Information
Mike Rappaport

In my last post, I discussed the Fourth Amendment, the third party doctrine, and the Carpenter case (which involved information secured from a cell phone company about a consumer’s cell phone location).  In that post, I discussed the third party doctrine generally and applied it to Carpenter as an illustration.  But Carpenter has an important feature, noted by other bloggers and commenters, that goes beyond the narrow question of the third party doctrine: Congress has passed a statutory provision that protects against the disclosure of information about cell phone customers.

In particular, Congress has provided customers of cell phone companies with protection as to their location information.  In 47 U.S.C. 222(a), Congress states that “every telecommunications carrier has a duty to protect the confidentiality of proprietary information of, and relating to, … customers.”  Other provisions make clear that location information is part of the information to be protected.  47 U.S.C. 222(c), (g).

Some have argued that this provision creates a property right or interest in the customer.  While this information has been disclosed to a third party (the cell phone company), it is argued that the customer still retains a property interest in its protection.  Thus, if one has a property oriented understanding of the Fourth Amendment, as Justice Scalia seemed to have, then this property right might indicate the customer had a right to be protected under the Fourth Amendment.

This is an interesting argument, but it may or may not be right under the original meaning.  As I explained in my prior post, the Fourth Amendment provides that “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” Therefore the question is whether this information is a “paper” or “effect.”  Perhaps Justice Scalia had a property oriented theory of the Fourth Amendment, but the text of the Amendment does not speak of property, but of more specific things, such as “paper” or “effect.”

Under a straightforward, but perhaps narrow definition of paper and effect, the information would not be a paper or effect.  A paper would refer to the actual physical piece of paper, not the information contained on it.  An effect would refer to personal property or movables that a person can carry on their person.  In neither case would the “information” be a paper or effect.  Perhaps a paper or a memory stick with that information on it would be a paper or effect, but not the information itself.

Yet one might argue that these terms should be read more broadly.  In particular, perhaps an effect should be understood to include not merely personal property movables but also property in information.  Perhaps, but my sense – albeit based on limited study – is that this information would not have been considered an effect in 1791.

But maybe a different interpretive rule would justify a broader reading.  If property in information of the relevant kind did not exist in 1791 – there were patents, but no privacy interests seem implicated by them, and trade secrets did not exist until the 19th century – then one might say that the relevant legal environment did not exist at the time of the Fourth Amendment.  In those circumstances, sometimes it makes sense to answer the question based on an analogy.  For example, one might argue that freedom of press might extend to radio or tv news, even though they did not exist at the time of the First Amendment, on the analogy that they are similar to the printing press in the relevant respects.  Similarly, one might argue that if property in information of the relevant kind existed in 1791, the Fourth Amendment would have protected it.  Maybe.

In a future post, I hope to show how Congress, the states, or private parties might protect against disclosure in a way more likely to satisfy the Fourth Amendment’s original meaning.