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31 posts from June 2018


Daniel Martin: The Duty to Appropriate
Michael Ramsey

Recently published, in the California Law Review, Daniel Martin (Berkeley JD '17): The Duty to Appropriate: Why Congress Has a Constitutional Obligation to Fund Criminal Law Enforcement (106 Cal. L. Rev. 511 (2018)).  Here is the abstract:

In the Federalist Papers, James Madison famously called the power of the purse “the most complete and effectual weapon” of the representatives of the people, as part of his defense of the fledgling Constitution. In practical terms, Madison’s claim has proven true time and time again—with Congress using appropriations bills to assert extensive control over the modern administrative state. In legal terms, however, the power of the purse has received remarkably short shrift in both scholarship and case law, especially regarding the relationship between congressional appropriations and the separation of powers doctrine. Specifically, there is no Supreme Court opinion or body of research that systematically defines how appropriations may influence the President’s independent constitutional functions.

In response to this gap, this Note examines the relationship between appropriations and separation of powers, focusing on criminal law enforcement as a model issue. First, this Note argues that the Appropriations Clause confines spending decisions to Congress but does not give Congress plenary control over spending, requiring Congress to appropriate funds to the Executive and Judiciary for their independent constitutional functions. Second, this Note argues that criminal prosecutions should be considered an exclusive executive function, giving Congress a constitutional duty to fund criminal law enforcement. Congress may breach that duty by refusing to provide funding or by placing impermissible conditions on the use of such funds, both of which would force the President to either violate the Appropriations Clause or the Take Care Clause. Because Congress’s action would result in this unconstitutional outcome, this Note ultimately concludes that Congress has a constitutional obligation to provide funding for criminal law enforcement.

An interesting issue, well presented.  But I disagree with the proposition that the President would violate the take care clause if the President is unable to fully execute the law because Congress fails to provide funds for law enforcement.  The clause does not require the President to guarantee full enforcement of the law.  The clause requires the President to faithfully execute the law to the extent of the President's constitutional powers.  With respect to expenditure, the President's constitutional power is (only) to spend the money Congress makes available.  The President does not violate the clause if Congress doesn't make money available.  The alternative view would suggest that, notwithstanding the appropriations clause, the President can (indeed, must?) independently obtain as much money as needed to fully enforce the law.  It has the further implication that the President can issue decrees, use the military, etc., without Congress' approval as needed to fully enforce the law.  That would convert the take care clause from a presidential duty to a vast source of presidential power.


A Response to Professor McConnell on Presidential Self-Pardons
Brian Kalt

[Ed.: Continuing our discussion of presidential self-pardons, we welcome this guest post from Brian Kalt, Professor of Law & Harold Norris Faculty Scholar, Michigan State University College of Law.  He is the author of Pardon Me?: The Constitutional Case Against Presidential Self-Pardons, 106 Yale Law Journal 779 (1996).  Thanks again to Andrew Hyman for facilitating the discussion.]
Put simply, I disagree with Professor McConnell about the proper interpretation of the debate between Edmund Randolph and James Wilson about the pardon power. He is correct that I did not before consider the idea that when Wilson talked about prosecuting the president, he was referring to an impeachment trial and not a criminal trial. Thanks to Professor McConnell, I have now considered that possibility--but I reject it.
The nub of my disagreement with Professor McConnell appears in his statement in his blog post that "To assuage Randolph without advocating an amendment to the pardon power, Wilson would have to explain why Randolph was wrong to assume that the pardon power includes self-pardons. He did not offer any such explanation." Professor McConnell thus reads the debate in the context of his assumption--based on what I am not sure--that Randolph presumed that self-pardons were possible. But he offers no basis to conclude that Randolph (or anyone else present) silently presumed that Presidents had this awesome new power. To me, the more obvious reading is that (1) nobody thought self-pardons were possible; and (2) Wilson was referring to criminal prosecution. That reading explains not only why Wilson's reading assuaged the delegates, but why Randolph had not moved to prohibit self-pardons in the first place.
It also dovetails with Alexander Hamilton's statement in Federalist No. 69 that "The President of the United States would be liable to be impeached, tried, and, upon conviction of treason, bribery, or other high crimes or misdemeanors, removed from office; and would afterwards be liable to prosecution and punishment in the ordinary course of law."
The following is a deeper dive into the debate, taken mainly from my 1996 Note:
Because the Convention debate as rendered in Madison's notes did not mention self-pardons explicitly, there are three possibilities. The Framers either: (1) did not consider the possibility of self-pardons; (2) silently presumed that self-pardons would be invalid; or (3) silently presumed that self-pardons would be valid.
1. Oversight
When Randolph suggested the possibility of presidential treason, his scenario, a treasonous executive pardoning his treasonous lackeys, was similar to the well-known episode in which King Charles II pardoned Lord Danby to prevent Danby from being impeached--the impeachment trial would have revealed Charles's own perfidious dealings with France. In the wake of the Danby pardon, Parliament restricted pardons from preempting impeachments.
Randolph's analogy to the Danby episode could only go so far, though. The status of the King as above the law--he could do no wrong--meant that there was no such thing in Britain as a self-pardon. When contemplating a Danby-like situation, therefore, Randolph might have overlooked the fact that the President was different. In other words, perhaps the self-pardon was just lost in the translation. This may be why Randolph's solution was to eliminate the treason pardon, not to prohibit self-pardons, which would have been a more obvious and direct solution to the problem of a treasonous President if, as Professor McConnell suggests, Randolph thought self-pardons were possible.
Wilson's response to Randolph took the difference between King and President into account: the President could be impeached. Wilson also said that the President could be prosecuted--I read this as referring to criminal prosecution, while Professor McConnell thinks it refers to the impeachment trial. But either reading is consistent with nobody considering the possibility of a self-pardon. Perhaps Wilson made the implicit assumption that the President could only be weaker than the King; that the powers of the former were less than (or at most equal to) those of the latter. As such, it might not have occurred to Wilson that the President could have a new power.
If this was the case--if the continuity between the English and American pardon powers, coupled with the absence of self-pardons in the former, lulled the Framers into missing the possibility of self-pardons--then no positive answer to the self-pardon question can be found in the Convention debates.
2. Implicitly Invalid
In the discussion of treasonous Presidents trying to skirt the law, perhaps the possibility of a self-pardon occurred to one of the dozens of people in the room. Thus, a second explanation for the Framers' silence was that they presupposed a President could not pardon himself--that the illegality of self-pardons literally went without saying. It would have been a violation of natural law for a man to be his own judge; if anyone believed otherwise it would have been a remarkable assumption that one would think would have occasioned some discussion.
When Wilson answered Randolph's concern of a "guilty" President by pointing out that the President could be prosecuted, he might have been referring to criminal prosecution rather than an impeachment trial. If Wilson and everyone present assumed that a self-pardon would be invalid, this would have provided powerful reassurance. Wilson was reminding everybody that the pardon power did not place the President above the law.
Nobody objected to Wilson's interpretation by arguing, "That cannot be; the President in such a situation could just pardon himself and avoid criminal prosecution." Professor McConnell considers that evidence that Wilson was not referring to criminal prosecution. I consider that evidence that nobody thought self-pardons were possible.
3. Implicitly Valid
If, as I believe, "prosecution" referred to criminal prosecution, it is implausible to think that the delegates accepted, without comment, that self-pardons were possible. Wilson's reassurance was that the President could be prosecuted--if anyone thought that the President could head that off with a self-pardon, surely they would have said so. Otherwise, Wilson would have been asking the Convention to rely on a perfidious President's self-restraint, repentance, and willingness to suffer the penalty for treason even though he had the power to avoid it. If this was what Wilson meant, his argument surely would not have carried the day.
But even under Professor McConnell's reading--that "prosecution" referred only to an impeachment trial--it is not plausible that the Framers presupposed a President could pardon himself. It seems more likely that Randolph did not consider self-pardons than that he had no objection to them. After all, if the possibility of pardoning his confederates was "too great a trust" for Randolph to repose in the President, why would the possibility of him pardoning himself (and for any crime, not just treason) not be much worse?
Furthermore, it hardly seems that Wilson would have been able to assuage the Convention's fears by pointing out that a treasonous President could be impeached. Allowing a traitor-President to be impeached but not criminally prosecuted would not have been very reassuring at all, especially given that in Randolph's scenario all of the President's treasonous subordinates would have been pardoned and immune from criminal prosecution as well. Remember that treason was narrowly defined in the Constitution as "levying war" against the United States or "adhering" to its foes. Randolph's scenario was not one of mere political differences but of outright insurrection.
Ultimately, one can only speculate as to what the Framers thought about the self-pardon. Given the course of their debate, however, it is most reasonable to conclude that they believed the power to be invalid, or at least that they did not think about it.


Further Thoughts on the President's Self-Pardon Power
Michael McConnell

[Ed:  For this post we welcome Michael W. McConnell, the Richard & Frances Mallery Professor of Law, Stanford Law School, Director of the Stanford Constitutional Law Center and Senior Fellow, Hoover Institution.  Thanks to Andrew Hyman for arranging this contribution.]

There have been two serious substantive responses to my Washington Post op-ed on whether the President can pardon himself, which I appreciate.

First, Eric Muller argues in The Faculty Lounge, relying largely on the OED, that because a person cannot “grant” anything to himself, the president’s power to “grant” a pardon cannot extend to himself. The premise is not valid. Two examples. The creator of a trust (called the “grantor”) can grant property to himself as trustee to hold in trust for certain purposes. Moreover, if the terms of a trust empower the trustee to grant certain property to other persons (heirs, perhaps), the trustee can include himself among the grantees. Both of these arrangements are common. Of course, in the latter case there may be self-dealing prohibitions (or not), but they do not arise from the linguistics of the word “grant.”

Second, Brian Kalt argues that the exchange between Randolph and Wilson does not support my conclusion [Ed.: Noted by Andrew Hyman on this blog here]. Here is the exchange, which occurred in the context of a near-final draft of Article II, which read: “he shall have power to grant reprieves and pardons for offences against the U. S. &c.”

Mr Randolph moved to “except cases of treason”. The prerogative of pardon in these cases was too great a trust. The President may himself be guilty. The Traytors may be his own instruments.

Col: Mason supported the motion.

Mr Govr Morris had rather there should be no pardon for treason, than let the power devolve on the Legislature.

Mr Wilson. Pardon is necessary for cases of treason, and is best placed in the hands of the Executive. If he be himself a party to the guilt he can be impeached and prosecuted.

II Farrand, at 626 (Sept. 15, 1787). Randolph’s motion was defeated, 8-2-1.

In the op-ed I interpreted this exchange as follows: “The framers of the Constitution thus specifically contemplated and debated the prospect that a president might be guilty of an offense and use the pardon power to clear himself. They concluded that the remedy of impeachment by the House and conviction by the Senate was a sufficient check on the possibility of abuse.” Kalt offers an alternative interpretation: that Wilson’s statement means that the President could be prosecuted (criminally) after impeachment. This would refute the possibility of self-pardon.

Kalt does not take account of the fact that the term “prosecution” was frequently used at the time to refer to the “prosecution” of the impeachment in the Senate. ( For example, Edmund Burke was described as “prosecuting” Warren Hastings in the House of Lords after his impeachment by the Commons.) When used as part of the conjunctive phrase “impeachment and prosecution,” like the modern phrase “impeachment and conviction,” the latter term more naturally refers to the kind of prosecution or the kind of conviction that follows upon an impeachment, namely senatorial. Thus, at a minimum, we must conclude that Wilson’s statement is not proof against self-pardon. Wilson may well have been saying that impeachment by the House and prosecution in the Senate provide a sufficient check against the possibility of presidential treason, even in the face of self-pardon.

Indeed, I believe that is the most likely interpretation. There is no question that Randolph’s concern was about the use of the pardon power with respect to criminal prosecutions. (The plain language of the pardon clause already ruled out the use of the pardon power to prevent an impeachment.) Randolph believed that, unless the pardon clause was amended, the president would have the power of self-pardon, which he thought would be especially pernicious in the case of treason.

What about Wilson? If Wilson were referring to subsequent criminal prosecution, as Kalt assumes, his comment would  highlight Randolph’s concern rather than assuage it. To assuage Randolph without advocating an amendment to the pardon power, Wilson would have to explain why Randolph was wrong to assume that the pardon power includes self-pardons. He did not offer any such explanation. But if Wilson’s point was that House impeachment and Senate prosecution would be a sufficient check on presidential misconduct, even without a criminal prosecution, his answer would be a logical and complete response to Randolph.

One further point: Wilson is not saying that the president would be impeached and prosecuted for granting the pardon, to himself or to his “instruments,” but rather that he would be impeached and prosecuted for the underlying offense.


John McGinnis on Originalism and Alternatives
Michael Ramsey

At City Journal, John McGinnis: A Philosophy of Expedience.  From the introduction: 

Judicial appointments have proved the most successful aspect of the Trump presidency. Neil Gorsuch has begun where Antonin Scalia left off—as a committed originalist and eloquent textualist. Twenty-one appellate justices have been confirmed, a record at this point in a modern President’s term.  And, like Gorsuch, these appointees have been schooled in formalist methodologies of judging. Confident of and committed to their judicial philosophy, they will not shift leftward, as have many Republican appointees in the past. These judges are the fruit of institutions like the Federalist Society and of the work of scholars who have carefully formulated the ideas of originalism and textualism. The Left is enraged because the Trump judges will leave their mark for at least a generation. Thus a group, Demand Justice, has been formed to spend millions to assail the Trump appointees and tout progressive judges for the future.

But however much money they spend, judicial progressives face an existential difficulty: the Left has no philosophy of jurisprudence to compete with originalism. Yes, progressives embrace a familiar set of specific legal positions tied to their agenda. They believe that Citizens United—the case that gave corporations the same right to speak at election time as the media—is an abomination. They believe that the Constitution’s enumeration of powers does not prevent the federal government from regulating anything that it wants to regulate. They believe that progressive programs, be they Obamacare or antidiscrimination law, should never yield to claims of religious liberty, and that discrimination is generally fine, so long as it favors minorities—and majorities, too, as long as those are women.

In answering a question about the Supreme Court in a presidential debate with Trump, Hillary Clinton characteristically subordinated law to a grab bag of progressive policy objectives. “I feel that at this point in our country’s history, it is important that we not reverse marriage equality, that we not reverse Roe v. Wade, that we stand up against Citizens United, we stand up for the rights of people in the workplace.” In contrast, Trump provided a general legal standard based on a principle: “Interpret the Constitution the way the Founders wanted it interpreted.” This is a rough but handy description of originalism.

And from later in the essay:

The one exception to the Left’s constitutional stagnation is the band of liberals, led by Jack Balkin, who embrace originalism, arguing that it can be friendly to progressive goals. This is a welcome development for constitutional theory in the academy, because it puts the debate about the Constitution where it should be—on historical facts about its meaning, rather than on contemporary politics. Nevertheless, the liberal originalism boomlet seems unlikely to have much effect outside the academy. First, the Left has been demonizing originalism for so long that it can hardly now publicly embrace it. Indeed, the whole argument of the Left over the last century is that the law of the Founding was outdated, and today many leftists would add that it is also discredited, being the product of rich white males. Second, with due respect to these theorists, it’s unlikely that a fair reading of an essentially Whig Constitution can be contorted to reflect the progressive agenda today.

And in conclusion:

No victories are permanent in politics or jurisprudence. New left-leaning thinking about constitutionalism will at some point rise to a level worthy of being called a kind of jurisprudence, but for now, originalism has the intellectual power and public resonance. You can’t beat something with nothing.

There's much more of interest in the essay.  I would add an additional supporting point: as discussed a bit on this blog, left-leaning academics and commentators frequently use originalist arguments in support of particular outcomes when originalist arguments seem strongly to support them.  In making these arguments they typically ignore the jurisprudential debate over originalism, and often conveniently overlook their own theoretical opposition to originalism.  (See, for example, this post).

(Via Real Clear Politics).


A Brief Response to Professor McConnell on Self-Pardons
Andrew Hyman

Regarding the WaPo column by Professor McConnell that Mike Ramsey quoted earlier, that column links to the debate transcript from 1787, and I don’t think that transcript really suggests an ability to self-pardon.  Professor McConnell is technically correct that, “The framers of the Constitution thus specifically contemplated and debated the prospect that a president might be guilty of an offense and use the pardon power to clear himself.”  But Professor McConnell crucially omits that they only debated the president using the pardon to clear himself by pardoning his accomplices: “Mr. RANDOLPH moved to ‘except cases of treason.’ The prerogative of pardon in these cases was too great a trust. The President may himself be guilty. The Traytors may be his own instruments.”  According to Professor Brian Kalt, Randolph's scenario was "a treasonous executive pardoning his treasonous lackeys," and Kalt is very likely correct. Shortly after Randolph spoke, James Wilson supported the final language of the Pardon Clause without a treason exception, saying that a sinister president who pardoned his “instruments” could be impeached and also "prosecuted," which of course does not suggest anything about a self-pardon (even in the unlikely event that McConnell is correct that Wilson used the word "prosecuted" to describe prosecution in the Senate rather than by a criminal prosecutor).

Saikrishna Prakash: Congress as Elephant
Michael Ramsey

Recently published, in the Virginia Law Review: Saikrishna Bangalore Prakash (University of Virginia Law School): Congress as Elephant (104 Va. L. Rev. 797 (2018)).  Here is the abstract:

Congress, considered in its entirety, seldom is an object of legal study. Scholars tend to concentrate on discrete features—its Commerce Clause authority, its power to declare war, or the impeachment functions of its chambers. This inclination toward a narrow focus reflects the fact that Congress is so multifaceted that even fathoming its complexity is rather daunting. So intimidating, in fact, that it has caused most scholars to shy away from a comprehensive treatment. This Essay attempts to fill that gap. The Constitution’s text and context suggest that the Founders envisioned Congress playing multiple constitutional functions. After comparing our Congress with its predecessor, the Continental Congress, this Essay describes six roles for Congress, only a few of which are familiar: Chief Lawmaker, Secondary Executive, Chief Facilitator and Overseer of the Magisterial Branches, State Overseer, and Enforcer of Constitutional Rights and Duties. Only when we appreciate Congress in all its complexity can we appreciate why Congress, as an institution, is more than the first branch amongst equals.


Justice Gorsuch Dissents on the Contracts Clause, Cites Mike Rappaport's Student Note
Michael Ramsey

In Sveen v. Melin, decided 8-1 yesterday, Justice Gorsuch filed a solo dissent arguing that the state law at issue was unconstitutional under the original public meaning of the contracts clause.  Here are the key passages:

When it comes to legislation affecting contracts, the Constitution hardens the presumption of prospectivity into a mandate. The Contracts Clause categorically prohibits states from passing “any . . . Law impairing the Obligation of Contracts.” Art. I, §10, cl. 1 (emphasis added). Of course, the framers knew how to impose more nuanced limits on state power. The very section of the Constitution where the Contracts Clause is found permits states to take otherwise unconstitutional action when “absolutely necessary,” if “actually invaded,” or “wit[h] the Consent of Congress.” Cls. 2 and 3. But in the Contracts Clause the framers were absolute. They took the view that treating existing contracts as “inviolable” would benefit society by ensuring that all persons could count on the ability to enforce promises lawfully made to them— even if they or their agreements later prove unpopular with some passing majority. Sturges v. Crowninshield, 4 Wheat. 122, 206 (1819).

The categorical nature of the Contracts Clause was not lost on anyone, either. When some delegates at the Constitutional Convention sought softer language, James Madison acknowledged the “‘inconvenience’” a categorical rule could sometimes entail “‘but thought on the whole it would be overbalanced by the utility of it.’” Kmiec & McGinnis, The Contract Clause: A Return to the Original Understanding, 14 Hastings Const. L. Q. 525, 529–530 (1987). During the ratification debates, these competing positions were again amply aired. Antifederalists argued that the proposed Clause would prevent states from passing valuable legislation. Id., at 532–533. Federalists like Madison countered that the rule of law permitted “property rights and liberty interests [to] be dissolved only by prospective laws of general applicability.” Id., at 532. And, of course, the people chose to ratify the Constitution— categorical Clause and all.

For much of its history, this Court construed the Contracts Clause in this light. The Court explained that any legislative deviation from a contract’s obligations, “however minute, or apparently immaterial,” violates the Constitution. Green v. Biddle, 8 Wheat. 1, 84 (1823). “All the commentators, and all the adjudicated cases upon Constitutional Law agree[d] in th[is] fundamental propositio[n].” Winter v. Jones, 10 Ga. 190, 195 (1851). But while absolute in its field, the Clause also left significant room for legislatures to address changing social conditions. States could regulate contractual rights prospectively. Ogden v. Saunders, 12 Wheat. 213, 262 (1827). They could retroactively alter contractual remedies, so long as they did so reasonably. Sturges, supra, at 200. And perhaps they could even alter contracts without “impairing” their obligations if they made the parties whole by paying just compensation. See West River Bridge Co. v. Dix, 6 How. 507, 532–533 (1848); El Paso v. Simmons, 379 U. S. 497, 525 (1965) (Black, J., dissenting). But what they could not is destroy substantive contract rights—the “Obligation of Contracts” that the Clause protects.

More recently, though, the Court has charted a different course. Our modern cases permit a state to “substantial[ly] impai[r]” a contractual obligation in pursuit of “a significant and legitimate public purpose” so long as the impairment is “‘reasonable.’” Energy Reserves Group, Inc. v. Kansas Power & Light Co., 459 U. S. 400, 411–412 (1983). That test seems hard to square with the Constitution’s original public meaning. After all, the Constitution does not speak of “substantial” impairments—it bars “any” impairment.  Under a balancing approach, too, how are the people to know today whether their lawful contracts will be enforced tomorrow, or instead undone by a legislative majority with different sympathies? Should we worry that a balancing test risks investing judges with discretion to choose which contracts to enforce—a discretion that might be exercised with an eye to the identity (and popularity) of the parties or contracts at hand? How are judges supposed to balance the often radically incommensurate goods found in contracts and legislation? And does this test risk reducing the “Contract Clause’s protection” to the “Court’s judgment” about the “‘reasonableness’” of the legislation at hand? Simmons, 379 U. S., at 529 (Black, J., dissenting). Many critics have raised serious objections along these and other lines. See, e.g., ibid.; Kmiec & McGinnis, supra, at 552; Rappaport, Note, A Procedural Approach to the Contract Clause, 93 Yale L. J. 918, 918 (1984); Epstein, Toward a Revitalization of the Contract Clause, 51 U. Chi. L. Rev 703, 705–717 (1984); J. Ely, The Contract Clause: A Constitutional History 7–29 (2016). They deserve a thoughtful reply, if not in this case then in another.

It's a little surprising to me that Justice Thomas (at least) did not support him on this.

Congratulations to co-blogger Mike Rappaport for the cite to his student note (!) and to Professor James Ely for the cite to his impressive book on the history of the contracts clause, parts of which he presented at the San Diego originalism works-in-progress conference a few years ago.

UPDATE:  John McGinnis comments here: Gorsuch Tries (Unsuccessfully) To Restore the Contract Clause.


Zachary Price: Funding Restrictions and Separation of Powers
Michael Ramsey

Recently published, in the Vanderbilt Law Review, Zachary S. Price (Hastings): Funding Restrictions and Separation of Powers (71 Vand. L. Rev. 357 (2018)).  Here is the abstract:

Congress’s “power of the purse”—its authority to deny access to public funds—is one of its most essential constitutional authorities. A crucial check on executive overreaching, it may provide authority to stop presidents in their tracks. Yet Congress and the executive branch have developed widely divergent views on the scope of this authority. During the Obama Administration, sharp conflicts over this issue arose in areas of acute policy conflict, including climate change, prisoner transfers, proposed closure of detention facilities at the Guantanamo Naval Base, and federal marijuana enforcement. Many planned initiatives of the Trump Administration—from immigration enforcement, to renegotiation of trade deals, to military operations against Islamic terrorists or other foreign adversaries—could present analogous questions. Despite the issue’s contemporary salience, however, existing scholarship provides no satisfactory understanding of Congress’s power to control the other two branches through appropriations constraints.

This Article offers a systematic account of funding constraints as a separation-of-powers problem. Employing a methodology focused on text, structure, original intent, and the broad contours of historical practice, the Article argues that properly analyzing the problem requires disaggregating executive powers. Congress may not control some executive authorities, such as the veto, pardon, and appointment powers, through restricted or conditional appropriations. These powers are “resource-independent” because the president may exercise them personally, and because allowing Congress to control or materially influence their exercise would elide separation-of-powers distinctions essential to the constitutional structure. In contrast, certain other executive powers, most importantly war powers and law enforcement, are “resource-dependent”—they exist only insofar as Congress provides resources for their exercise. As to such powers, Congress properly holds near-plenary authority to restrict or condition use of available resources.

Hard cases arise in two areas: selective support of resource-independent powers and funding constraints on conduct of diplomacy. In these areas, an antimanipulation principle, modeled loosely on analogous federalism cases, provides the appropriate framework for balancing congressional and executive authority: conditions should be invalid only in narrow circumstances when the condition would unduly manipulate judgments that are properly the president’s alone.

Under this framework, the separation of powers shields presidents from congressional control with respect to powers that exist principally to provide a check on Congress. At the same time, the framework preserves a vital congressional check on the most normatively important executive powers—namely, those that involve bringing the government’s coercive and destructive capacities to bear through law enforcement and warfare.


The Pardon Power Clause Does Permit the President to Pardon Himself [Updated]
David Weisberg

With regard to the recent post on this blog concerning Eric Muller’s post at The Faculty Lounge:
(1) Prof. Muller begins his post by asserting: “A person can certainly give himself something.”  (Emphasis in original.)  He then proceeds to express doubts that a person can grant himself something.
He relies, in part, on the OED, which provides the following definition of the verb “to grant”: “5. a. to bestow or confer (a possession, right, etc.) by a formal act.  Said of a sovereign or supreme authority…, etc.  Also, in Law, to transfer (property) from oneself to another person, especially by deed.”
The only relevant OED definition of the verb “bestow” is as follows:  “6. tr. (& absol.) to confer as a gift, present, give.”  If “to bestow” and “to give” are roughly synonymous, and if “to grant” and “to bestow” are roughly synonymous, one would think that “to give” and “to grant” are roughly synonymous.  So, if “give” and “grant” mean the same thing, then it would seem to follow that a person can grant himself something.
The very fact that Prof. Muller has to make an elaborate argument that one cannot grant something to oneself implies that our natural linguistic instinct tells us the opposite is true.  Here is a thought experiment.  Suppose the Pardon Power Clause said: “[H]e shall have Power to grantto anyone other than himself, Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.”  (N.B. The phrase “except in Cases of Impeachment” would still have force, because it bars the president from issuing a pardon to halt the impeachment of someone other than the president.)
Everyone would recognize the hypothetical formulation as definitively supporting the conclusion favored by Prof. Muller, but he himself would have to reject it as meaningless.  If it is linguistically impermissible to say that someone “grants to himself” something—which, by the way, is importantly not one of the phrases Muller analyzed using corpus linguistics—then it would also be linguistically impermissible to say that a person may grant something “to anyone other than himself.”  But we all understand perfectly well what the latter phrase means, and there is no reason to doubt that the framers would have understood it in precisely the same way we do.  (I have fleshed out this point in my paper on SSRN, “Originalism is Dead…Long Live Identicalism!”)
(2) Prof. Muller highlights the part of the OED definition of “grant” that refers to transfers of property.  Notwithstanding the OED’s reference to “Law,” the special use of “grant” in conveyances of property provides no helpful guidance for interpreting “grant” in the Pardon Power Clause.
In the conveyancing context, a “grant” from Mr. A to Mr. A is inherently problematic because Mr. A is granting to himself something—viz., a piece of property—he already owns.  That is a puzzler.  But, in the context of the Pardon Power Clause, there is no analogous problem or puzzle: the president would be granting himself something—viz., a pardon for federal offenses—that he most definitely does not already possess.  The two cases would be, in that sense, entirely different.
(3) I think the expressio unis canon referred to by Prof. Ramsey is controlling here.  The framers took care that a president could not stymie impeachment proceedings against him by giving (providing, granting, issuing, conveying, conferring...?) a pardon to himself.  It is hard—for me, it is impossible—to believe that the framers never noticed a similar possibility relating to ordinary federal prosecutions.  They could have drafted the Pardon Power Clause to end with the following two exceptions: “…, except in Cases of Impeachment, or in criminal prosecutions where he is the accused.”  That they did not do so answers, in my mind, the question at issue. 
UPDATE (by Michael Ramsey):  Michael McConnell (Stanford) agrees in the Washington Post: Trump’s not wrong about pardoning himself (via How Appealing). Professor McConnell mainly relies on the expessio unis argument plus this drafting history:
Two days before the Constitutional Convention voted in 1787 to approve the final draft, Edmund Randolph of Virginia moved to narrow the president’s pardon power on the ground that it “was too great a trust. The President himself may be guilty.” His point was supported by none other than James Madison. But James Wilson of Pennsylvania, the finest lawyer among the delegates and later a justice on the first Supreme Court, stressed the importance of the pardon power and argued that if the president “be himself a party to the guilt, he can be impeached and prosecuted.” (“Prosecuted” meant prosecuted before the Senate.) Randolph’s motion was defeated eight states to two, with one state divided.

The framers of the Constitution thus specifically contemplated and debated the prospect that a president might be guilty of an offense and use the pardon power to clear himself. They concluded that the remedy of impeachment by the House and conviction by the Senate was a sufficient check on the possibility of abuse.


Law Professors' Letter on Executive Power (Part 2): The Faithful President
Michael Ramsey

In a previous post I noted that a group of law professors has released a public letter to the President's counsel arguing that the President's exercise of executive powers is limited by a duty of good faith and  a responsibility not to act for private gain.  The previous post remarked on the fact that the letter is almost entirely originalist in methodology (even though many of its signers are not originalists and indeed some are strong critics of originalism).

This post addresses the letter's substance.  Again, here is the letter's core claim:

First, the best understanding of Article II of the Constitution is that presidential actions motivated by self-protection, self-dealing, or an intent to corrupt or suborn the legal system are unauthorized by and contrary to Article II of the Constitution. Second, and even if one does not accept the foregoing construction of Article II, Congress has enacted obstruction of justice statutes that prohibit any person from acting “corruptly” to interfere with federal criminal investigations. Whatever a President may have been able to do in the absence of such statutes, Congress’s judgment that obstruction of justice is prohibited binds the President.

As an original matter, I agree almost entirely with the conclusion and reasoning of the letter's first point.  The combination of the take care clause and the presidential oath, understood in the political and legal context in which they were written, establish a constitutional rule against the President using the office for private gain contrary to the public interest.  (There are some good originalist sources that could be cited here, including this article by Robert Natelson and this book by Gary Lawson and Guy Seidman).

I nonetheless have two reservations about the letter.  The first is that it doesn't say anything about the remedy for presidential misconduct.  It seems clear to me that the constitutionally provided remedy is impeachment.  Presidential misconduct of this sort would be a "misdemeanor" in the original sense of that word in the impeachment clause: a malfeasance in office.  The inherently subjective nature of such supposed misconduct makes it particularly appropriate for a political remedy.  A President will usually be able to argue that the challenged action was actually taken in the President's perception of the public interest, not for private gain.  Assessment of the President's state of mind in this situation is likely to be extremely difficult.  I think this idea in part underlies Chief Justice Marshall's observation in Marbury that matters of executive discretion are political questions not matters for courts.  This observation did not mean that Presidents aren't answerable for abuses of discretion; it meant that they are answerable through impeachment.

This leads to my second problem with the latter: its second claim.  After making the constitutional point, the letter further argues: "Whatever a President may have been able to do in the absence of such statutes, Congress’s judgment that obstruction of justice is prohibited binds the President."  I think this is not correct.  First, assume (contrary to my view) that the Constitution does not impose a duty on the President to act in good faith.  Can Congress impose that duty?  To do so would take away a power vested in the President by the Constitution.  Suppose, for example, that Article II vests the President with an unlimited power to grant pardons.  Could Congress limit that power by saying the President could only grant a pardon upon an express finding that it served the public interest?  I think not, because then the President would not have the full power vested by the Constitution.

The letter points to Hamdan v. Rumsfeld as an example in which Congress limited the President's express constitutional power (in that case, the commander-in-chief power).  But Hamdan isn't decisive here because in that case Congress had its own express power (to make rules for the government and regulation of the military) that limits the commander-in-chief power.  In the pardon example, Congress must rely on its necessary and proper powers, and depriving the President of a constitutionally vested power isn't a "proper" use of congressional power.

But even if the President has a constitutional duty to act in good faith (as I believe), I think Congress imposing a statutory obligation of good faith through criminal law (at least on a sitting President) is problematic.  Suppose Congress makes it a crime for the President to use the pardon power in bad faith.  This changes the remedy for abuse of executive discretion, creating a judicial remedy rather than (or at least in addition to) a political remedy.  As discussed above, I think the Constitution establishes impeachment as the remedy.  At minimum, I would not read the obstruction of justice statute to make this structural change without more clarity from Congress. 

(To be clear, I am only considering here matters of executive discretion such as removals or pardons; Congress can, for example, criminalize actions such as taking bribes or witness tampering by Presidents because these actions are not part of the exercise of executive power).

In any event, I think there's less here than the letter implies.  As noted, a President will almost always be able to argue a good faith belief that an action serves the public good.  At most, the requirement is not that the President's action actually serve the public good, only that the President believes that it does.  And the fact that an action happens also to boost the President's private interest proves little, as people commonly and in good faith suppose that actions incidentally benefiting them are also the best public policy.  In fact, there's a risk that the letter sets the test for impeachment too high, by implying that the President must be found to have acted in bad faith.  I'm not sure that's correct.  Perhaps Congress can impeach a President for actions that are taken in good faith but are profoundly mistaken.  But that's a subject for another post.