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19 posts from April 2018


Gorsuch versus Thomas on Vagueness
Michael Ramsey

Yesterday's Supreme Court decision in Sessions v. Dimaya held that part of the Immigration and Nationality Act, providing for removal of aliens convicted of a violent felony, was void for vagueness.  Justice Gorsuch (concurring, providing the fifth vote) and Justice Thomas (in dissent) disagreed over the originalist foundations of the vagueness doctrine.

From Justice Thomas' dissent:

First, the vagueness doctrine is not legitimate unless the “law of the land” view of due process is incorrect. Under that view, due process “require[s] only that our Government . . . proceed . . . according to written constitutional and statutory provision[s] before depriving someone of life, liberty, or property.” Nelson v. Colorado, 581 U. S. ___, ___, n. 1 (2017) (THOMAS, J., dissenting) (slip op., at 2, n. 1) (internal quotation marks omitted). More than a half century after the founding, the Court rejected this view of due process in Murray’s Lessee v. Hoboken Land & Improvement Co., 18 How. 272 (1856). See id., at 276 (holding that the Due Process Clause “is a restraint on the legislative as well as on the executive and judicial powers of the government”). But the textual and historical support for the law-of-the-land view is not insubstantial.

[Footnote:  See, e.g., In re Winship, 397 U. S. 358, 382–384 (1970) (Black, J., dissenting); Rosenkranz, The Objects of the Constitution, 63 Stan. L. Rev. 1005, 1041–1043 (2011); Berger, “Law of the Land” Reconsidered, 74 Nw. U. L. Rev. 1, 2–17 (1979); Corwin, The Doctrine of Due Process of Law Before the Civil War, 24 Harv. L. Rev. 366, 368–373 (1911); see also 4 The Papers of Alexander Hamilton 35 (Syrett & Cooke eds. 1962) (“The words ‘due process’ have a precise technical import, and . . . can never be referred to an act of legislature”).]

Even under Murray’s Lessee, the vagueness doctrine is legitimate only if it is a “settled usag[e] and mod[e] of proceeding existing in the common and statute law of England, before the emigration of our ancestors.” Id., at 277. That proposition is dubious. Until the end of the 19th century, “there is little indication that anyone . . . believed that courts had the power under the Due Process Claus[e] to nullify statutes on [vagueness] ground[s].” Johnson, supra, at ___ (opinion of THOMAS, J.). That is not because Americans were unfamiliar with vague laws. Rather, early American courts, like their English predecessors, addressed vague laws through statutory construction instead of constitutional law. See Note, Void for Vagueness: An Escape From Statutory Interpretation, 23 Ind. L. J. 272, 274–279 (1948). They invoked the rule of lenity and declined to apply vague penal statutes on a case-by-case basis. The modern vagueness doctrine, which claims the judicial authority to “strike down” vague legislation on its face, did not emerge until the turn of the 20th century.

(Thomas goes on to argue on originalist grounds that even if the vagueness doctrine applies to criminal statutes, it does not apply immigration removal decisions.)

Gorsuch responds at length (some citations and footnotes omitted):

I begin with a foundational question. Writing for the Court in Johnson v. United States, 576 U. S. ___ (2015), Justice Scalia held the residual clause of the Armed Career Criminal Act void for vagueness because it invited “more unpredictability and arbitrariness” than the Constitution allows. Because the residual clause in the statute now before us uses almost exactly the same language as the residual clause in Johnson, respect for precedent alone would seem to suggest that both clauses should suffer the same judgment.

But first in Johnson and now again today JUSTICE THOMAS has questioned whether our vagueness doctrine can fairly claim roots in the Constitution as originally understood. For its part, the Court has yet to offer a reply. I believe our colleague’s challenge is a serious and thoughtful one that merits careful attention. At day’s end, though, it is a challenge to which I find myself unable to subscribe. Respectfully, I am persuaded instead that void for vagueness doctrine, at least properly conceived, serves as a faithful expression of ancient due process and separation of powers principles the framers recognized as vital to ordered liberty under our Constitution.

Consider first the doctrine’s due process underpinnings. The Fifth and Fourteenth Amendments guarantee that “life, liberty, or property” may not be taken “without due process of law.” That means the government generally may not deprive a person of those rights without affording him the benefit of (at least) those “customary procedures to which freemen were entitled by the old law of England.” Pacific Mut. Life Ins. Co. v. Haslip, 499 U. S. 1, 28 (1991) (Scalia, J., concurring in judgment). Admittedly, some have suggested that the Due Process Clause does less work than this, allowing the government to deprive people of their liberty through whatever procedures (or lack of them) the government’s current laws may tolerate. But in my view the weight of the historical evidence shows that the clause sought to ensure that the people’s rights are never any less secure against governmental invasion than they were at common law. Lord Coke took this view of the English due process guarantee. 1 E. Coke, The Second Part of the Institutes of the Laws of England 50 (1797). John Rutledge, our second Chief Justice, explained that Coke’s teachings were carefully studied and widely adopted by the framers, becoming “‘almost the foundations of our law.’” Klopfer v. North Carolina, 386 U. S. 213, 225 (1967). And many more students of the Constitution besides—from Justice Story to Justice Scalia—have agreed that this view best represents the original understanding of our own Due Process Clause. See, e.g., Murray’s Lessee v. Hoboken Land & Improvement Co., 18 How. 272, 277 (1856); 3 J. Story, Commentaries on the Constitution of the United States §1783, p. 661 (1833); Pacific Mut., supra, at 28–29 (opinion of Scalia, J.); Eberle, Procedural Due Process: The Original Understanding, 4 Const. Comment. 339, 341 (1987).

Perhaps the most basic of due process’s customary protections is the demand of fair notice. See Connally v. General Constr. Co., 269 U. S. 385, 391 (1926); see also Note, Textualism as Fair Notice, 123 Harv. L. Rev. 542, 543 (2009) (“From the inception of Western culture, fair notice has been recognized as an essential element of the rule of law”). Criminal indictments at common law had to provide “precise and sufficient certainty” about the charges involved. 4 W. Blackstone, Commentaries on the Laws of England 301 (1769) (Blackstone). Unless an “offence [was] set forth with clearness and certainty,” the indictment risked being held void in court. Id., at 302 (emphasis deleted); 2 W. Hawkins, Pleas of the Crown, ch. 25, §§99, 100, pp. 244–245 (2d ed. 1726) (“[I]t seems to have been anciently the common practice, where an indictment appeared to be [in]sufficient, either for its uncertainty or the want of proper legal words, not to put the defendant to answer it”).

The requirement of fair notice applied to statutes too. Blackstone illustrated the point with a case involving a statute that made “stealing sheep, or other cattle” a felony. 1 Blackstone 88 (emphasis deleted). Because the term “cattle” embraced a good deal more then than it does now (including wild animals, no less), the court held the statute failed to provide adequate notice about what it did and did not cover—and so the court treated the term “cattle” as a nullity. Ibid. All of which, Blackstone added, had the salutary effect of inducing the legislature to reenter the field and make itself clear by passing a new law extending the statute to “bulls, cows, oxen,” and more “by name.” Ibid.

This tradition of courts refusing to apply vague statutes finds parallels in early American practice as well. In The Enterprise, 8 F. Cas. 732 (No. 4,499) (CC NY 1810), for example, Justice Livingston found that a statute setting the circumstances in which a ship may enter a port during an embargo was too vague to be applied, concluding that “the court had better pass” the statutory terms by “as unintelligible and useless” rather than “put on them, at great uncertainty, a very harsh signification, and one which the legislature may never have designed.” Id., at 735. In United States v. Sharp, 27 F. Cas. 1041 (No. 16,264) (CC Pa. 1815), Justice Washington confronted a statute which prohibited seamen from making a “revolt.” Id., at 1043. But he was unable to determine the meaning of this provision “by any authority . . . either in the common, admiralty, or civil law.” Ibid. As a result, he declined to “recommend to the jury, to find the prisoners guilty of making, or endeavouring to make a revolt, however strong the evidence may be.” Ibid.


John Vlahoplus Responds to Thomas H. Lee on Natural Born Citizens
Michael Ramsey

John Vlahoplus (Independent) has posted 'Natural Born Citizen': A Response to Thomas H. Lee (American University Law Review Forum (forthcoming)) on SSRN.  Here is the abstract: 

In "Natural Born Citizen" Thomas H. Lee provides a challenging and in his own words "novel interpretation" of the original meaning of that constitutional term. Lee analyzes a wide range of sources including American constitutional history, Anglo-American legal treatises, continental natural law theory, and four centuries of English and British statutes and political and economic history. He concludes that the original meaning of the term at the adoption of the Constitution includes foreign-born children of "U.S. citizen fathers who had resided in the United States but went abroad temporarily for a private purpose," following the natural law principle of jus sanguinis (right of blood). He considers the analysis to be important in part because it shows how to do originalism.

This Response disputes Lee's conclusion and argues that he overlooks or misinterprets important authorities including writings of the Founders, legislative history from the First Congress, the 1608 English decision in Calvin's Case, relevant portions of Blackstone's Commentaries, and the English and British statutes and cases interpreting them. It suggests that "Natural Born Citizen" represents a constructive rather than an originalist interpretation of the Constitution. Finally, it suggests that Lee's conclusion implies significant additional rights to birthright citizenship and judicial power to interpret natural law in the constitutional context. "Natural Born Citizen" may not be originalism, and it may not constrain judicial power as some intend originalism to do, but it is certainly a bold and challenging interpretation of Anglo-American legal history that merits close attention.

Professor Lee's paper is here: "Natural Born Citizen" (American University Law Review, Vol. 67, No. 327 (2017).

John Vlahoplus' previous paper on the issue is: Toward Natural Born Derivative Citizenship (British Journal of American Legal Studies, Vol. 7, forthcoming 2018).

Add my paper on the eligibility clause, and there are three recent and very different originalist accounts of the Constitution's natural born citizen requirement.  And to complete the picture, there is Mary Brigid McManamon's paper from a few years ago, The Natural Born Citizen Clause as Originally Understood (Catholic U. Law Review 2015).


The Original Meaning of 'Natural Born' (Revised)
Michael Ramsey

I have posted a revised version of my article The Original Meaning of "Natural Born" (University of Pennsylvania Journal of Constitutional Law, Vol. 20, 199-246, 2018, forthcoming) on SSRN.  The central arguments remain the same but I have corrected some incidental errors and responded to numerous helpful comments.  Here is the (revised) abstract:

Article II, Section 1 of the U.S. Constitution provides that no one but a “natural born Citizen” is eligible to be President of the United States. Modern conventional wisdom generally holds that the phrase “natural born Citizen” includes anyone made a U.S. citizen at birth by U.S. statutes or the Constitution. But that conventional wisdom is under attack in academic commentary and open to doubt on textual grounds. If anyone born a U.S. citizen is eligible, the word “natural” in the eligibility clause is superfluous. Further, in general in eighteenth-century legal language, natural meant the opposite of “provided by statute” (hence “natural law” and “natural rights”). And plausible arguments can be made for a narrow meaning of “natural born” on the basis of either traditional English common law or eighteenth-century continental public law. To this point, modern scholarship has provided no comprehensive response to these objections.

This article defends the broad view of the original meaning of the eligibility clause. Although it finds that the usual sources of original meaning – the Constitution’s drafting and ratifying history, and contemporaneous commentary – are inconclusive on the meaning of “natural born,” it argues that meaning of the phrase in English law provides a useful guide. Under traditional English common law, a “natural born subject” meant, with minor exceptions, only a person born in English territory. But beginning in the seventeenth century, in a succession of Acts Parliament extended the meaning of “natural born” to include some persons born abroad to English parents. In adopting the phrase “natural born” from English law, the American framers likely understood that they were using a phrase without a fixed definition and subject to at least some legislative alteration through the naturalization power. That conclusion in turn provides support for the modern view that Congress can create categories of “natural born” citizens by statute, although that power is likely subject to some limitation to preserve the original purpose of the eligibility clause.


John Miller on Joyce Lee Malcolm and the Second Amendment
Michael Ramsey

At National Review, John Miller:  The ‘Nice Girl’ Who Saved the Second Amendment (profiling Professor Joyce Lee Malcolm of George Mason University).  From the introduction: 

Malcolm looks nothing like a hardened veteran of the gun-control wars. Small, slender, and bookish, she’s a wisp of a woman who enjoys plunging into archives and sitting through panel discussions at academic conferences. Her favorite topic is 17th- and 18th-century Anglo-American history, from the causes of the English Civil War to the meaning of the American Revolution. Her latest book, due in May, is The Tragedy of Benedict Arnold, a biography of the infamous general. She doesn’t belong to the National Rifle Association, nor does she hunt. She admits to owning an old shotgun, but she’s unsure about the make or model. “I’ve taken it out a couple of times, but the clay targets fall safely to earth,” she says in an interview at George Mason University’s Antonin Scalia Law School in Virginia, where she’s a professor who teaches courses on constitutional history as well as on war and law.

She is also the lady who saved the Second Amendment — a scholar whose work helped make possible the Supreme Court’s landmark Heller decision, which in 2008 recognized an individual right to possess a firearm. “People used to ask, ‘How did a nice girl like you get into a subject like this?’” she says. “I’m not asked that anymore.” She smiles, a little mischievously. “Maybe they don’t think I’m a nice girl anymore.”

On the origins of her key book:

Malcolm’s doctoral dissertation focused on King Charles I and the problem of loyalty in the 1640s, and much of her scholarship has flowed from this initial work. The Royal Historical Society published her first book, and she edited a pair of volumes for the Liberty Fund, totaling more than 1,000 pages, on political tracts in 17th-century England. As she researched and wrote on the period, she noticed something peculiar. “During the English Civil War, the king would summon the local militia to turn out with their best weapons,” she says. “Then he would relieve them of their best weapons. He confiscated them. Obviously, he didn’t trust his subjects.”

At a time when armies were marching around England, ordinary people became anxious about surrendering guns. Then, in 1689, the English Bill of Rights responded by granting Protestants the right to “have Arms for their Defence.” Malcolm wasn’t the first person to notice this, of course, but as an American who had studied political loyalty in England, she approached the topic from a fresh angle. “The English felt a need to put this in writing because the king had been disarming his political opponents,” she says. “This is the origin of our Second Amendment. It’s an individual right.”


Her research led to a groundbreaking book on the history of gun rights, To Keep and Bear Arms. Before it went to print, however, she faced something she had not expected: political resistance. “I had a hard time finding a publisher,” she says. After several years in limbo, To Keep and Bear Armscame out in 1994, from Harvard University Press — an excellent result for any scholar in the peer-reviewed world of publish-or-perish professionalism. “The problem was that I had come up with an answer that a lot of people didn’t like.”

The Second Amendment, she insisted, recognizes an individual right to gun ownership as an essential feature of limited government. In her book’s preface, she called this the “least understood of those liberties secured by Englishmen and bequeathed to their American colonists.” Confusion reigned: “The language of the Second Amendment, considered perfectly clear by the framers and their contemporaries, is no longer clear.” The right to keep and bear arms, Malcolm warned, “is a right in decline.”

She aimed to revive it at a time when governments at all levels imposed more restrictions on gun ownership than they do today. Many legal scholars claimed that the Second Amendment granted a collective right for states to have militias but not the individual right of citizens to own firearms. With To Keep and Bear Arms, which received favorable reviews and went through several printings, Malcolm joined a small but increasingly influential group of academics with different ideas. 

And the Heller connection:

Then, in 2008, came Heller, arguably the most important gun-rights case in U.S. history. A 5–4 decision written by Scalia and citing Malcolm three times, it swept away the claims of gun-control theorists and declared that Americans enjoy an individual right to gun ownership. “If we had lost Heller, it would have been a big blow,” says Malcolm. “Instead, it gave us this substantial right.” She remembers a thought from the day the Court ruled: “If I have done nothing else my whole life, I have accomplished something important.”

Here is the Amazon page for the book: To Keep and Bear Arms: The Origins of an Anglo-American Right (Harvard Univ. Pres 1996).


New Book: The Lives of the Constitution by Joseph Tartakovsky
Michael Ramsey

Recently published, by Joseph Tartakovsky (Claremont Institute):  The Lives of the Constitution: Ten Exceptional Minds that Shaped America’s Supreme Law (Encounter Books, 2018).  Here is the book description from Amazon:

In a fascinating blend of biography and history, Joseph Tartakovsky tells the epic and unexpected story of our Constitution through the eyes of ten extraordinary individuals―some renowned, like Alexander Hamilton and Woodrow Wilson, and some forgotten, like James Wilson and Ida B. Wells-Barnett.

Tartakovsky brings to life their struggles over our supreme law from its origins in revolutionary America to the era of Obama and Trump. Sweeping from settings as diverse as Gold Rush California to the halls of Congress, and crowded with a vivid Dickensian cast, Tartakovsky shows how America’s unique constitutional culture grapples with questions like democracy, racial and sexual equality, free speech, economic liberty, and the role of government.

Joining the ranks of other great American storytellers, Tartakovsky chronicles how Daniel Webster sought to avert the Civil War; how Alexis de Tocqueville misunderstood America; how Robert Jackson balanced liberty and order in the battle against Nazism and Communism; and how Antonin Scalia died warning Americans about the ever-growing reach of the Supreme Court.

From the 1787 Philadelphia Convention to the clash over gay marriage, this is a grand tour through two centuries of constitutional history as never told before, and an education in the principles that sustain America in the most astonishing experiment in government ever undertaken.


The President and Syria, Again (Again)
Michael Ramsey

With the President threatening Syria (again), we are (again) hearing that the President does not have constitutional authority to launch attacks without Congress' approval.  Here's Katherine Timpf at NRO (channeling Senator Bernie Sanders): Trump Does Not Have the Constitutional Authority to Strike Syria.  She writes:

“President Trump has no legal authority for broadening the war in Syria,” Sanders said in a statement. “It is Congress, not the president, who determines whether our country goes to war, and Congress must not abdicate that responsibility.”

“If President Trump believes that expanding the war in Syria will bring stability to the region and protect American interests, he should come to Congress with his ideas,” he continued.

There are many things that I disagree with Senator Sanders on (such as economic policy, spending, and health care) but here, he is absolutely right. The president has absolutely no authority to take military action against Syria. The Constitution is clear about this; it’s not hard to understand.

Of course, I agree (also here).  But let's be clear that Senator Sanders and those agreeing with him are making an originalist argument.  The Constitution given its original meaning is clear.  I'm not sure it's "easy" to understand -- my first try at explaining it took me 95 pages in the Chicago Law Review; but I do think after examining all the evidence, it's clear.  To "declare war" in eighteenth-century terms included "declaring" by taking military action as well as by issuing a proclamation, and even relatively small armed conflicts with foreign nations were considered "war."

In contrast, the nonoriginalist case against the President's war-initiation power is highly uncertain.  It can be made -- here's David French, also at NRO, making it:

America’s constitutional structure exists for a reason. When we launch military campaigns — especially campaigns that could lead our nation into direct conflict with a great power — it’s in our national interests that the commander in chief rally the people through their elected representatives. Military action should be an expression of national will.

But the argument the other way is strong as well.  Circumstances have changed drastically since the Founding.  Military action can take place much more quickly, and often needs to do so to be effective.  The United States' air power superiority makes quick strikes more practical and less likely to involve material U.S. casualties.  The power disparity and our limited objectives make it less likely that full-scale war will ensue.  Congress has proved unwilling to wield the war-initiation power except for major conflicts (and sometimes not even then).  Presidents have used their independent power to launch airstrikes repeatedly in modern times -- Clinton in Kosovo, Obama in Libya, Trump in Syria last year -- with relatively muted criticism.  The President's lawyers have consistently taken the position across multiple administrations that Presidents have this power.  No Supreme Court decision in modern times has even hinted at a limitation, as the Court has carefully avoided the issue. 

Taking all these arguments together, there's a strong claim that the Constitution's meaning has evolved, or should be seen as evolving.  It's not an airtight case, but it seems at minimum hard to say that a nonoriginalist approach excludes independent presidential war-initiation power, at least with regard to low-intensity strikes with limited objectives.

So when we hear people such as Senator Sanders say the Constitution gives war-initiation power to Congress, it's good to remember that he's speaking as an originalist, even if he doesn't realize it.

RELATED:  Ilya Somin has thoughts on the matter here: The Constitution and Trump's Next Strike Against Syria.


Justice Gorsuch, Mainstreaming Originalism?
Michael Ramsey

There have been many reports in the popular press inspired by Justice Gorsuch's completion of his first year at the Court.  In general they seem positive, and in particular present his originalism as a notable but not alarming aspect of his judging.  This remarkably even-handed report by Ariane de Vogue at CNN is an illustration: Trump's originalist, Neil Gorsuch, finds his place.  It begins:

Neil Gorsuch slipped out his Colorado home a year ago to race to Washington and become President Donald Trump's first pick in a bid to reshape the judiciary.

He had a glistening resume and a decade of experience on the federal bench, but a few problems: He had only packed two ties, one shirt was frayed and about 70 senators were waiting to meet him.
"He packed quickly and went to Washington for the announcement, but he wasn't prepared for how fast things would move," said Michael Trent, one of Gorsuch's childhood friends who rushed out to buy the future justice some extra shirts.
As an appeals court judge, Gorsuch did not have an extensive wardrobe. "And if his shirts were frayed nobody noticed because he was wearing a robe," Trent said, laughing.
But more substantively:
"We are appointing judges who will interpret the Constitution as written," the President said [at the State of the Union address]. It was all that judicial conservatives - who seek to fill the benches with judges in the mold of the late Justice Antonin Scalia -- could hope for. Like Scalia, Gorsuch believes the Constitution should be interpreted based on its original public meaning. In legalese, it's called originalism, or textualism.
And this:
Indeed, at oral arguments, Gorsuch's questions suggest that he sees the law at times through a Scalian lens. One of the biggest issues of the term, for example, concerns partisan gerrymandering. The justices appear deeply divided about whether they can or should come up with a standard to decide when politicians go too far in using political motives to draw congressional districts. In 2004, Scalia said that courts should stay out.
At oral arguments in a case challenging Republican-drawn maps in Wisconsin, Gorsuch seemed to echo that sentiment.  "Maybe we can just for a second, talk about the arcane matter, the Constitution," Gorsuch said to a lawyer representing those challenging the Wisconsin maps. "Where exactly do we get authority to revise state legislative lines?"
Professor Rick Hasen, of the University of California, Irvine School of Law, who has penned a new book on Scalia, says the exchange highlights Gorsuch's fidelity to originalism. "Like Scalia," Hasen said, Gorsuch believes "other methodologies would unconstitutionally turn judges into legislators."
And further:
In another case, Gorsuch hinted that he might side with the liberals in a dispute concerning a provision of law that requires the mandatory removal of some immigrants who have committed crimes.
But even in agreeing with liberals, he could be in line with Scalia's jurisprudence. Scalia did tend to side with the left side of the bench when it came to the vagueness of statutes used to convict criminal defendants.
And there is some indication that Gorsuch has independent views when it comes to the 4th Amendment.
The article quotes some critical law professors and politicians, but it's mostly snark-free and generally depicts the Justice as an interesting and engaging character.  In conclusion:
In 2016, when he was still a judge on the 10th Circuit, Gorsuch spoke more plainly, this time echoing Socrates.
In a speech, he said that his model as a judge was to "hear courteously, answer wisely, consider soberly, and decide impartially."
In the coming weeks and months, his critics and his supporters will get their first full glimpse of those deliberations.
Yes, that's pretty bland.  But that's my point.  Perhaps the role of the second-generation originalist Justice is to be mainstream, as Scalia never was. 


Lawrence Solum's "Surprising Originalism"
Michael Ramsey

Lawrence Solum delivered the 2018 Regula Lecture at the University of Akron School of Law, titled "Surprising Originalism."  Here is a description of the lecture (via Legal Theory Blog):

Many judges, lawyers, legal scholars, and law students assume that they already know everything that is important about "originalism."  But they may be in for some surprises.  The nature of originalism itself has changed.  Even law professors may not know that the doctrine of "original intent" was abandoned by almost all originalists more than thirty years ago.  Another common assumption about originalism is that it inevitably leads to "conservative" results, perhaps because it is part of a right-wing ideology.  Surprisingly, originalism frequently produces results that are progressive on topics where the dominant living-constitutionalist approach has produced outcomes that are frequently associated with conservatism.  "Surprising Originalism" is about the ways in which contemporary originalist constitutional theory diverges from widely held preconceptions.

And here is video of the lecture (via Jeff Lipshaw at TaxProf Blog, who has comments: The Rule Of Law Is Not A Rule Of Law: Thoughts on Solum and Meyer [also commenting on Linda Meyer's essay Sisyphus and the Clockmaker: Two Views of the Rule of Law in Keally McBride's 'Mr. Mothercountry: The Man Who Made the Rule of Law.']).


Christina Mulligan: Diverse Originalism
Michael Ramsey

Christina Mulligan (Brooklyn Law School) has posted Diverse Originalism (University of Pennsylvania Journal of Constitutional Law, forthcoming) on SSRN.  Here is the abstract:

Originalism has a difficult relationship with race and gender. People of color and white women were largely absent from the process of drafting and ratifying the Constitution. Today, self-described originalists are overwhelmingly white men. In light of these realities, can originalism solve its “race and gender” problems while continuing to be originalist? This Article argues that originalists can take several actions today to address originalism’s race and gender problems, including debiasing present-day interpretation, looking to historical sources authored by people of color and white women, and severing originalism and the Constitution’s text from their historical associations with racism and sexism. Taking these steps will not only make originalism more inclusive, but also help originalists become better at accessing the original meaning of the Constitution.

Professor Mulligan presented an earlier draft of this paper at the originalism works-in-progress conference in San Diego last February.


Reviving the Nondelegation Doctrine
Mike Rappaport

The Supreme Court has accepted certiorari in a case that raises a nondelegation doctrine question (as well as several other issues). In Gundy v. United States, the nondelegation issue involves the federal Sex Offender Notification and Registration Act ("SORNA"). The Act relates to the requirement that sex offenders register their status. In one provision of the Act, “Congress left it to the Attorney General to decide whether and on what terms sex offenders convicted before the date of SORNA's enactment should be required to register their location or face another criminal conviction.”

While the Act specified in detail how it was to be applied to a person convicted after its passage, the Act said almost nothing about how it was to be applied to past offenders. Instead, it delegated the question to the Attorney General, providing that “The Attorney General shall have the authority to specify the applicability of the requirements of this subchapter to sex offenders convicted before the enactment of this chapter ... and to prescribe rules for registration of any such sex offender.”

As then-Judge Gorsuch wrote in a different case before the 10th Circuit on the provision, this leaves enormous discretion to the AG:

As the government acknowledges, this language leaves the Attorney General free to do nothing . . . Alternatively, "[u]nder his delegated authority in Subsection (d), the Attorney General could" require all past offenders to register or "require some but not all to register." Or, alternatively still, he could require those forced to register to "comply with some but not all of the registration requirements" applicable to future offenders in order to adapt the law as he thinks best for past offenders . . . Even then, the Attorney General remains free to "change his mind at any given time or over the course of different administrations."

I agree with Judge Gorsuch that the Supreme Court should hold this delegation unconstitutional.

The problem in this area is to establish a workable standard for excessive delegations. I have a proposal for a reasonably workable standard.  Some broad delegations to agencies allow them to take actions that are “in the public interest.”  Such delegations should be unconstitutional.  Only delegations that are more constraining would be constitutional. While this would allow less constrained delegations than I would prefer, it would establish a relatively clear standard. And it would hold the delegation in Gundy unconstitutional, since the delegation in that case had no limitation on the AG at all.

But my guess is that the Supreme Court is not interested in resolving the matter in this way. Instead, I am guessing some of the justices are attracted to Justice Gorsuch’s dissent when he was a 10th Circuit judge, where he advocates a special standard on delegations that involve criminal law sanctions. Here is Gorsuch’s proposed standard, which he believes is consistent with Supreme Court case law in the Touby v. US case:

Distilling Touby to its essence, at least three "meaningful" limitations emerge: (1) Congress must set forth a clear and generally applicable rule (unauthorized persons may not possess the drug) that (2) hinges on a factual determination by the Executive (does the drug pose an imminent hazard?) and (3) the statute provides criteria the Executive must employ when making its finding (does the drug in question currently have an accepted medical use?). These three criteria could easily be applied to most any delegation challenge in the criminal context and provide the more meaningful standard the Court has long sought. In fact, since Touby a number of courts of appeals have employed something very much like them when assessing delegation challenges to federal criminal statutes.

While it would have a narrower application than the standard I suggest, Gorsuch’s standard would still be important, as it would strike down a delegation arguably for the first time since the New Deal. And once that occurs, it becomes easier for the Court to strike down other delegations.