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24 posts from July 2018

07/12/2018

Robert Natelson on Federal Eminent Domain Power
Michael Ramsey

Recently published, in the Federalist Society Review (Vol. 19, p. 88, 2018), Robert Natelson: Did the Constitution Grant the Federal Government Eminent Domain Power?: Using Eighteenth Century Law to Answer Constitutional Questions.  From the introduction:

Did the Constitution as originally understood grant the federal government eminent domain authority? As to federal territories and enclaves, for which the federal government received general police power, the answer is clearly “yes.” As to land lying within state boundaries and outside federal enclaves, the Supreme Court held in Kohl v. United States that the federal government may exercise eminent domain, but the Court’s constitutional reasoning was unsound. The real answer to this question lies in founding-era jurisprudence and law books that today’s constitutional interpreters consult too rarely.

That eighteenth century jurisprudence can answer questions of constitutional interpretation should be obvious. The Constitution is a legal document. A clear majority of its framers were lawyers, and many of the rest (such as James Madison) had extensive legal knowledge. Most of the Federalists who explained the Constitution to the ratifying public were lawyers. Several of the leading Antifederalists, including Virginia’s Patrick Henry and New York’s Robert Yates (possibly the author of the widely distributed “Brutus” essays), were likewise members of the Bar. The Constitution contains many legal terms of art, and the participants in the ratification debates often explained the document in explicitly legal terms.  Just as one of my prior essays in Federalist Society Review illustrated how knowledge of the Latin language can assist in constitutional interpretation, this essay illustrates how eighteenth century law can do so by exploring whether the Constitution granted the power of eminent domain to the federal government.

07/11/2018

Judge Kavanaugh on Judging (and on Justice Scalia)
Michael Ramsey

I saw Judge Kavanaugh deliver this speech in 2016, reprinted in the Notre Dame Law Review: Two Challenges for the Judge as Umpire: Statutory Ambiguity and Constitutional Exceptions.  On Justice Scalia: 

What did Justice Scalia stand for as a judge? It’s not complicated, but it is profound. The judge’s job is to interpret the law, not to make the law or make policy. So read the words of the statute as written. Read the text of the Constitution as written, mindful of history and tradition. The Constitution is a document of majestic specificity defining governmental structure, individual rights, and the role of a judge. Remember that the structural provisions of the Constitution—the separation of powers and federalism—are not mere matters of etiquette or architecture, but are essential to protecting individual liberty. Justice Scalia’s memorable dissent in Morrison v. Olson is of course the best example of that.  Remember that courts have a critical role, when a party has standing, in enforcing those separation of powers and federalism limits. For judges, Justice Scalia would say, don’t make up new constitutional rights that are not in the text of the Constitution. But don’t shy away from enforcing constitutional rights that are in the text of the Constitution. Changing the Constitution is necessary at times, but it is to be done by the people through the amendment process. Changing policy within constitutional bounds is for the legislatures.

That’s about it. Simple but profound.

RELATED: In the New York Times, Akhil Reed Amar: A Liberal’s Case for Brett Kavanaugh.  Among other points:

Most judges are not scholars or even serious readers of scholarship. Judge Kavanaugh, by contrast, has taught courses at leading law schools and published notable law review articles. More important, he is an avid consumer of legal scholarship. He reads and learns. And he reads scholars from across the political spectrum. (Disclosure: I was one of Judge Kavanaugh’s professors when he was a student at Yale Law School.)

This studiousness is especially important for a jurist like Judge Kavanaugh, who prioritizes the Constitution’s original meaning. A judge who seeks merely to follow precedent can simply read previous judicial opinions. But an “originalist” judge — who also cares about what the Constitution meant when its words were ratified in 1788 or when amendments were enacted — cannot do all the historical and conceptual legwork on his or her own.

Judge Kavanaugh seems to appreciate this fact, whereas Justice Antonin Scalia, a fellow originalist, did not read enough history and was especially weak on the history of the Reconstruction amendments and the 20th-century amendments.

07/10/2018

Originalism Myths #1: Originalists Think the Framers Agreed on Everything
Michael Ramsey

With the new Supreme Court nomination (congratulations Judge Kavanaugh!), originalism is likely to be back in popular commentary as it was during Justice Gorsuch's confirmation.  I hope to use this time to highlight the arguments against originalism and separate the good ones from the bad ones.  In particular, I want to highlight the bad ones, in the hopes that originalist critics will give up on them, and find meaningful points of engagement.

So let's start with this one: originalism depends on the framers all agreeing on everything.  Here's Donald J. Fraser at the History News Network: The Founders Would Not Recognize Originalism—Why Should We?  (Thanks to Andrew Hyman for the pointer).  Key claim:

The inability to recognize the extent to which the Founding Fathers argued among themselves is a major flaw in the conservative case for originalism since it is dependent on the theory that people in the 18th century shared a common interpretation of the Constitution. In fact, they did not, as one of the earliest debates over the meaning of the Constitution shows.

[There follows an engaging description of the Hamilton/Jefferson/Madison debate over the national bank].

Fraser's claim is fundamentally misconceived on two counts.  (Before getting to them, though, I'll start by saying that claiming originalists don't recognize the post-ratification disputes over constitutional meaning is either lazy or dishonest.  Originalist scholarship routinely engages with these debates, and anyone who thinks otherwise either hasn't read the relevant literature or is deliberately misstating it.  To pick just a couple of examples beyond the bank debates, Hamilton and Madison famously debated executive power in the Pacificus/Helvidius letters in 1793 [Saikrishna Prakash and I wrote about that debate here, as have many others], and the Federalists and Republicans famously debated the constitutionality of the Jay Treaty in 1794-95 [I wrote about that debate here, as have many others].  The idea that originalist scholarship does not acknowledge these debates is wholly unfounded.)

The existence of these debates (which nobody disputes) does not undermine originalism for at least two core reasons.

(1)  Originalism does not claim that "people in the 18th century shared a common interpretation of the Constitution" as to all matters.  It claims that to the extent that people in the 18th century shared a common interpretation of the Constitution, that interpretation should be binding.  Citing the bank debate (or Pacificus/Helvidius, or the Jay Treaty, or any of a number of other debates) does not show that the founding generation had no common interpretations; it only shows that there were disagreements on some important matters (a point that, again, no one disputes).  

On other matters, though, the founding generation seems to have been largely in agreement.  To take one I've studied a bit, there appears to have been a general consensus, at least among leaders who commented on the matter, that Congress had the exclusive power to initiate war.  Hamilton, Madison, Washington, Jay, and a numbers of others agreed, and there's no material post-ratification commentary to the contrary.  (See Chapter 8 of The Constitution's Text in Foreign Affairs).  This is notable because (a) that's not obvious from the text, which only gives Congress the power to "declare War," and (b) in modern commentary this power is disputed.  Originalism says that the founding generation's common understanding should resolve this issue.  The fact that the founding generation did not agree on other things is irrelevant to whether one accepts as binding their common understanding on this one.

(2) Orignalism also does not require proof of a "common interpretation" (which I take to mean a near-consensus interpretation) in the post-ratification era to establish constitutional meaning.  That is so for three reasons.  (a) Mainstream modern originalism focuses on original meaning of the text, not the original intent of the framers.  Thus the inquiry is what the enacted text meant, not what particular framers, or the framers collectively, thought it meant (though their understandings are of course relevant). (b) Post-ratification reactions to the text must be treated carefully.  Once the text was enacted, commentators and political leaders had incentives to read it in a way that favored their institutional, political and ideological commitments.  Both Jefferson and Hamilton, for example, had personal reasons to read the Constitution as they did in the bank controversy.  They were not neutral readers. (c) Originalism does not claim that there is only one possible meaning of each constitutional phrase.  It recognizes ambiguity, and attempts to resolve ambiguity by finding the most likely meaning in the founding era.  The fact that people in the post-ratification era disagreed on meaning may show ambiguity, but it does not necessarily show irreducible ambiguity.  In the modern era lawyers routinely disagree over the meaning of phrases in statutes, contracts, wills, etc., but that does not mean judges cannot reach conclusions about their meaning.

Putting this all together, originalist scholarship routinely examines debates from the post-ratification era and concludes that one side had the better argument as to the text's meaning.  For example, Professor Prakash and I concluded that Hamilton had the stronger textual arguments in the Pacificus/Helvidius debates, at least on the question whether the President had some independent power in foreign affairs.  We also noted that Madison's contrary view was somewhat undermined because he had expressed a different view earlier, and that Hamilton's view was consistent with other key interpreters such as Washington and Jay.  We did not ignore the post-ratification debate, but we concluded there nonetheless was an originalist answer.  Similarly, I examined the Jay Treaty debates and concluded that the Federalist position (that the treaty power could reach topics not covered by Congress' enumerated powers) was the correct -- or at least the most plausible -- one; while Republican leaders disagreed, their arguments lacked foundation in the text, seemed logically incoherent, and appeared to be motivated by political opposition to the treaty.  (For what it's worth, I also think Hamilton was right on the bank controversy, though I acknowledge it's a closer question).

None of this means that we must today follow the Constitution's original meaning as to initiating war, presidential foreign affairs power, or the scope of the treaty power.  (All of the scholarship I've cited makes clear that that's a separate question).  But it's not helpful, in addressing that question, to pretend we cannot find original meaning.  Concededly, we can't always find it.  But sometimes, perhaps often, we can.  And the fact that the framers sometimes disagreed in the post-ratification era doesn't mean we can't.

This conclusion also leaves two important open questions.  The first is: for how many issues can we find a reasonably determinate original meaning?  If the answer is "some, but not many," then originalism may not have much practical significance. However, even if original meaning leaves many issues unresolved, that is not an argument for ignoring it as to issues it does resolve.  The second of these questions is: how should judges decide if original meaning does not resolve an issue?  That's a complicated question, but it's worth considering that the answer might be: they should leave the matter to the political branches.  That is, showing that original meaning can't provide answers in some cases does not mean that judges are thereby free to develop their own answers.

07/09/2018

John McGinnis et al.: The Legal Turn in Originalism
Michael Ramsey

John O. McGinnis (Northwestern University - Pritzker School of Law), Michael B. Rappaport (University of San Diego School of Law), Ilya Shapiro (Cato Institute), Kevin C. Walsh (University of Richmond - School of Law) and Ilan Wurman (Arizona State University (ASU) - Sandra Day O'Connor College of Law) have posted The Legal Turn in Originalism: A Discussion on SSRN.  Here is the abstract:

These five essays, which were originally published on the Library of Law and Liberty website, explore several themes involving the Legal Turn in Originlism – the trend toward using legal methods either to interpret or construct the Constitution. John McGinnis and Michael Rappaport’s initial essay argues that there has been a legal turn in recent originalist scholarship, exemplified by originalist scholars such as William Baude and Stephen Sachs, Jeffrey Pojanowski and Kevin Walsh, Randy Barnett and Evan Bernick, Jack Balkin, and by McGinnis and Rappaport’s own scholarship. Ilya Shapiro reacts to McGinnis and Rappaport’s initial essay, claiming that the Legal Turn is not very controversial since all originalists agree with the idea of treating the Constitution as a legal text. Kevin Walsh then explores the idea of the legal turn as it is developed in his own approach (coauthored with Pojanowski). Finally, Ilan Wurman expresses skepticism that the legal meaning of the Constitution is as important as McGinnis and Rappaport believe. McGinnis and Rappaport conclude the exchange with a response to their critics.

(Some of these essays were linked individually on this blog as they were posted, but it's great to have them all downloadable in one place.)

07/08/2018

Mitchell Gordon: Continuity, Discontinuity, and the Rights Retained by the People
Michael Ramsey

Mitchell Gordon (University of St. Thomas School of Law) has posted Getting to the Bottom of the Ninth: Continuity, Discontinuity, and the Rights Retained by the People (50 Indiana Law Review 421 (2017)) on SSRN.  Here is the abstract:

The Constitution’s first eight amendments expressly safeguard certain enumerated rights, and the Ninth Amendment instructs that the listing of some rights “shall not be construed to deny or disparage others retained by the people.” But the constitutional text says nothing about how such unenumerated rights are to be identified, evaluated, or enforced. Naturally this has made the Ninth Amendment difficult to apply, and the prevailing approach among courts and commentators has been to trivialize the amendment or ignore it completely. As a result, we have lost sight of its true subject and forgotten the question it was intended to answer.

Part I of this essay observes that most aspects of a new constitution can be classified as either continuous with the old order (maintaining something that already existed) or discontinuous (in the sense of ending a pre-existing institution or initiating something genuinely new). Whether the Ninth Amendment represents continuity or discontinuity, however, is not entirely clear – and this gets to the heart of what the Amendment was intended to do. We know that its author, James Madison, was responding to fears that a partial listing of rights might endanger other rights that were not listed; in the First Congress he proposed an amendment designed simply to clarify what enumeration did and did not do. Congress adopted the idea, but eliminated much of Madison’s proposed language, obscuring both the point of the amendment and the legal effect of enumeration.

Part II sorts the competing views, not according to how they define retained rights, but according to how they answer that question: Does enumeration actually change anything? Does it make any difference whether a right is enumerated? Those who think enumeration might make some difference I call differentialists; those who think it makes no difference at all I call non-differentialists. I subdivide differentialists into strict differentialists, who think enumeration makes ALL the difference (i.e., that rights not enumerated are not judicially enforceable), and moderate differentialists, who think enumeration matters to an extent but that enforceability should not turn entirely on enumeration per se. In Part III, I add a fourth group – I call them exoconstructionists –who interpret the Ninth Amendment not as an invitation to inquire into retained rights but as an instruction about how to construe other parts of the Constitution.

Part IV uses these concepts to examine an idea first suggested by Michael McConnell: that the Ninth Amendment is best understood from the standpoint of Lockean social compact theory. Under this reading, the “rights retained by the people” are simply the individual natural rights that the people did not relinquish as part of the original social compact. McConnell interprets the Ninth Amendment to mean that the enumeration of some rights in the written Constitution does not abrogate other rights that are not enumerated; those rights remain in force, but can be superseded by sufficiently explicit positive law. Finally, Part V observes that judicial discretion is at its lowest ebb when we are at one of the two extreme “poles” (i.e., non-differentialism and strict differentialism). The further we get from both poles, the more discretion the courts enjoy – not only to determine which unenumerated rights are judicially enforceable, but to draw conclusions about which narrative accounts of those rights are most plausible as a matter of historical fact.

(Via Larry Solum at Legal Theory Blog).

07/07/2018

Michael Stokes Paulsen on Originalism and Impeachment
Michael Ramsey

At Liberty Law Blog, Michael Stokes Paulsen: Constitutional Interpretation and the Impeachment Power.  To begin, a primer on original meaning originalism:

My methodology is one that is best described as original public meaning textualism: What is the objective meaning that the words and phrases of the document would have had to reasonable, and reasonably informed, speakers and readers of the English language, at the time of their adoption as part of the Constitution? I have described this methodology (which is not at all unique to me) at great length in other places. (Consider the articles herehere, and here, if interested.)

Briefly stated, the methodology is one that focuses on the (theoretical) objective meaning of the words of an authoritative written text. It is not the subjective “intentions,” or “understanding,” or “expectations” of any of the text’s (collective) authors or adopters that is itself authoritative – though such information might well supply valuable relevant evidence of the meaning of the words of the text. The search is for the meaning of the words and phrases that the framers and ratifiers of the Constitution wrote, and adopted, as part of the Constitution. That meaning is (theoretically) the objective meaning of the language thus written. Put colloquially:  It is not what the framers “had in mind” that counts, in the end. It is what they wrote down in words. The two things are often related, but they are distinct.

The methodology focuses on the original meaning of the words and phrases. This is essential to guard against creeping (or lurching) linguistic anachronism or, even worse, pure subjectivity. The Constitution’s provisions were adopted at particular points in time and reflected the meanings the words of those provisions had at that time and in that social and political context. To treat those words as legally authoritative means to accord them the meaning (or range of meaning) they had at the time they were adopted as authoritative.  That is part and parcel of written constitutionalism generally. Giving the Constitution its original meaning as an authoritative written text also requires that the words and phrases of the Constitution be understood in accordance with any backdrop understandings that would have come with such terms, at the time and in the social and political context in which they were adopted. If a word or phrase functioned as a specific legal or political term of art, and was known to function as such, then its legal meaning is the one that corresponds to that term-of-art meaning at the time, which is not necessarily its modern “literal” meaning.

This is a good summary of what I take to be the conventional description of modern originalism, which I sometimes call "Scalian originalism" because it's associated with then-Judge Scalia's famous 1986 speech and with his subsequent practice as Justice.  Because there seems to be recurring confusing on this point, I'll reiterate that this is NOT the same as "New Originalism," although it is indeed newer than the older form of originalism that focused on framers' intent.  New Originalism adds some additional points most notably including the idea of construction, which are not necessarily accepted by original meaning originalists.

Now on impeachment: 

Readers of the Constitution today can be misled badly by the general modern sense of the words “Crimes” and “Misdemeanors,” which might lead some to embrace anachronistic readings of the impeachment standard as limited to literal criminal-law offenses: felonies and misdemeanors. Under this reading method, the reader has to figure out to do with the word “high” as a supposed modifier and qualifier of the words “Crimes” and “Misdemeanors,” rather than as part of a composite term-of-art. The effort usually involves imputing some modern meaning to the word “high.”

But the word “crime” had a broader, more general sense at the time the Constitution was written than it does today, frequently being used to describe any serious wrongful act, whether technically illegal or not. Often the term was used in a strictly moral sense.  Similarly, the word “misdemeanor,” in eighteenth-century American English, was not limited to the meaning of a criminal-law offense with a lesser degree of seriousness or punishable by less than a year of imprisonment.  Instead, “misdemeanor” bore a broader meaning closer to “misbehaving” or “misdemeaning” – as in the sense of a person not demeaning himself or herself properly. . . 

Agreed.

07/06/2018

Craig Lerner: Originalism and the Common Law Infancy Defense
Michael Ramsey

Craig S. Lerner (George Mason University - Antonin Scalia Law School) has posted Originalism and the Common Law Infancy Defense (American University Law Review, Vol. 67, 2018) on SSRN.  Here is the abstract:

Justice Thomas and the late Justice Scalia consistently argued that the original meaning of the Eighth Amendment was to foreclose only those modes or acts of punishment that were considered cruel and unusual at the time the Bill of Rights was adopted. With respect to juvenile criminal responsibility, this would mean that the Constitution contemplated an infancy defense no broader than what existed in 1791. Yet the common law infancy defense, as sketched by originalist judges, seems barbaric. It treated all fourteen-year-olds as adults, and it permitted the imposition of punishment—even capital punishment—on offenders as young as seven.

This Article argues that the common law infancy defense was more nuanced than modern observers often recognize. With respect to misdemeanors, the defense was more broadly applicable than is typical today. Even with respect to felonies, offenders under the age of fourteen could be found liable only after an individualized inquiry as to their capacity to distinguish right from wrong. The eighteenth-century culture and common law had higher expectations of juvenile abilities than prevail today; and not surprisingly, young people proved more mature than modern adolescents, who are told repeatedly that they are frail and vulnerable. This Article speculates on how the original meaning of the Eighth Amendment, assuming it incorporates the common law approach to juvenile responsibility, might be applied to modern conditions, given the diminished maturity of young people. However, the Article questions whether young people today are as immature as advertised; indeed, the study of the common law infancy defense could prompt a reconsideration of contemporary attitudes about the capacities of young people.

07/05/2018

Matthew Franck on Presidential Self-Pardons
Michael Ramsey

At Public Discourse, Matthew Franck: Presidential Self-Pardons, the Framers at Philadelphia, and the Work of Originalism.  It begins:

In the recent revival of debate over whether a president can pardon himself (a matter on which I weighed in at National Review last year), two authors have relied heavily on the purported significance of a moment during the Constitutional Convention of 1787, which—they argue—disposes of the question definitively in favor of a self-pardoning power.

The post then discusses a post by Nicholas Higgins, Locke and the Founders Agree: The President Can Pardon Himself, and the Michael McConnell post discussed here earlier on this blog.  Noting that both authors rely on a single exchange at the Convention, it continues:

But Higgins and McConnell are too sure of this reading of the event [the Convention exchange], and of its significance for our own interpretation of the Constitution. 

First, there is insufficient evidence, in these few lines, to warrant the conclusion that even the only two relevant speakers—Randolph and Wilson—were thinking about presidential self-pardon, even for a second. ...

Second, the debate on Randolph’s motion ranged over more ground than this question (if it touched on it at all, which there is reason to doubt) and the whole matter probably took up (at a generous estimate) no more than half an hour of the Convention’s time, with six members talking. ...

Far more persuasive is the account of law professor Brian Kalt, who wrote extensively on this question in 1996, and who says of the debate on Randolph’s motion—accurately—that “[t]he self-pardon was nowhere mentioned.” As for what we can infer from the Randolph-Wilson exchange, Kalt says there are three possibilities: that the potential of a self-pardon was just completely overlooked; that it crossed the minds of the framers present but was dismissed as clearly unthinkable and inconsistent with the constitutional principles on which they were acting; and that it came into their minds and was accepted by them as a valid potential use of the power, for which impeachment (which could result only in a “political” punishment of removal from office and disqualification for future service) was the only remedy.  

More importantly, though:

But there is another problem with the argument of Higgins and McConnell. That is that this is simply not how originalism should be done at all. Let us suppose that theirs is the best, most persuasive reading of this brief and rather diffuse discussion of the pardon power on the last working day of the Constitutional Convention. As the late Justice Scalia was fond of pointing out, the views of individual lawmakers in the midst of debate are not themselves the law we must interpret. Neither are the votes taken in a deliberative body rightly viewed as votes on anyone’s interpretation of the text under discussion. The text that they passed, not what they said about what they passed, is the law.  

And in conclusion:

Thinking through constitutional principles, considering the logic and context and relations of various provisions and institutions to one another, is what we must undertake today as we search for the Constitution’s original meaning. This entails far more than cherry-picking a passing moment in a complex, multi-faceted debate that was just coming to a close, a moment that is itself (as we’ve seen) at best “obscure and equivocal,” and declaring victory for one side on a contested question we consider important today but that the founding generation never explicitly discussed at all. No, that’s just not how our work is done at all. 

(Thanks to Michael Perry for the pointer.)

I think I agree, but I'd feel better if the author then applied this advice to develop a conclusion on self-pardons.  As regular readers know, I feel somewhat uncomfortable talking about methodological matters in the abstract.

07/04/2018

Scott Gerber on Originalism and the Declaration
Michael Ramsey

At The Daily Caller, Scott Gerber: Originalism and the Fourth of July.  From the introduction:

President Donald Trump has indicated that he is working hard to appoint “originalist” judges to the federal courts. He is correct to do so, especially because the alternative is for judges to act like legislators by reading their personal views into the Constitution and impose them on the rest of us. But as the United States celebrates its 242nd anniversary on July 4th, it is important to appreciate that there are two different types of “originalism” and that only one of the two truly honors who we are as a nation.

...

The[ ] dominant iterations of originalism can be fairly characterized as “conservative originalism”: an approach that dictates that judges may legitimately recognize only those rights specifically mentioned in the Constitution, or ascertainably implicit in its structure or history. In all other cases, conservative originalists argue, the majority is entitled to govern—to make moral choices—through the political process. “Liberal originalism,” by contrast, maintains that the Constitution should be interpreted in light of the political philosophy of the Declaration of Independence. Liberal originalism rejects both conservative originalism and the notion of a living constitution on the ground that they are post-hoc rationalizations for preconceived political results.

Liberal originalism insists that conservative originalists mischaracterize the Constitution as establishing a majority-rule democracy, a mischaracterization that is also made by many constitutional theorists of progressive political views. Because of the Framers’ desire to avoid what Elbridge Gerry called the “excess of democracy,” they created a republican form of government, not a majority-rule democracy. And in that republican form of government, the judiciary is to play a central role: chief guardian of the unalienable rights of the American people, especially of individuals and minorities. Briefly put, liberal originalism employs a conservative methodology, but arrives at liberal results, as “liberal” is understood in the classic sense of seventeenth- and eighteenth- century Lockean political philosophy. “To secure these rights,” Thomas Jefferson proclaims in the Declaration of Independence, is the reason that “governments are instituted among men.” To secure unalienable rights is, therefore, why the Constitution was enacted, and to secure unalienable rights is how the Constitution should be interpreted. That is the “original intent” of the Founders.

SCOTUS Pick Set for July 9: Two Thoughts on Judge Kavanaugh [UPDATED]
Andrew Hyman

President Trump is aiming for July 9 to announce a U.S. Supreme Court nominee.  There are 25 known contenders, and you can find lots of info about each of them at a website I set up: www.tifis.org/Trump.html

The most recent scuttlebutt is that there are two main contenders, plus one dark horse.  The two main contenders and the dark horse are (allegedly) U.S. circuit judges Amy Coney Barrett, Brett Kavanaugh, and Raymond Kethledge, respectively.  Did I mention that you can find info about each of them at www.tifis.org/Trump.html?

Now comes the delicate part of this blog post, because I want to briefly critique Judge Kavanaugh, who is supported by an "Army" of lawyers.  The following comments are a bit critical, but this should not be taken as opposition to Kavanaugh, because the main question should always be "Who is best?" rather than "Who is perfect?"

That said, I want to point now to two judicial opinions of his that I find concerning: Seven-Sky v. Holder (2011) which sheds light about how much of a textualist Judge Kavanaugh is (textualism, of course, is a leading form of originalism), and In Re Aiken County (2013) which illustrates how he deals with separation of powers and executive branch discretion as a matter of text and original meaning.  Let's briefly consider the two cases in that order.

The Seven-Sky case preceded the U.S. Supreme Court case upholding the ACA ("Obamacare").  In Seven-Sky, Kavanaugh dissented as to jurisdiction and therefore did not address the merits; he said the penalty for disobeying the individual mandate was a "tax" (or at least should be treated like a "tax"), and so the Anti-Injunction Act denied the courts jurisdiction.  The Supreme Court later unanimously disagreed, saying it was not a tax (or to be treated like a tax) for purposes of the Anti-Injunction Act.  Of course, one should not jump to the conclusion that the nine justices were correct while Kavanaugh was incorrect, but still this was a very big case that needs to be considered now.  

Kavanaugh dissented from Judge Silberman's opinion, which stated: "If penalties were equivalent to taxes for all purposes — including the application of the Anti-Injunction Act — the last sentence of section 6671 would be superfluous.  It is a hallowed maxim of statutory interpretation that we must give effect, if possible, to all words in a statute."  Judge Kavanaugh acknowledged that his interpretation made some words of the statute redundant, but he correctly pointed out that sometimes Congress speaks redundantly.  Interested readers can judge for themselves whether Kavanaugh made much of an effort to avoid a redundant  interpretation, and whether Silberman and the nine justices tried too hard to avoid such an interpretation.

Now on to In Re Aiken County.  This case dealt with the scope of the Executive's authority to disregard federal statutes.  A few weeks later, his opinion occasioned much discussion here at this blog (see Mike Ramsey on 08/16/2013 and 08/18/2013, Mike Rappaport on 08/20/2013, and me on 09/13/2013).  The following year, Kavanaugh elaborated on his view in Aiken that a president can decline to execute laws he does not like, by exercising prosecutorial discretion as to private parties. 

It is widely accepted that prosecutorial discretion has several facets including these: (1) presidents can exercise prosecutorial discretion as necessary due to limited prosecutorial resources provided by Congress; (2) presidents can also exercise prosecutorial discretion to not enforce a statute when they think the statute is unconstitutional; and (3) presidents can also exercise prosecutorial discretion on a case-by-case basis as a corollary to the pardon power provided that the offense has already been committed (i.e. provided that the president does not effectively give a license to go commit future offenses).  It's this last prong that Judge Kavanaugh would expand.  He wrote: “The President may decline to prosecute or may pardon because of the President’s own constitutional concerns about a law <i>or</i> because of policy objections to the law, among other reasons”.  He advocated “the power to decline to prosecute a violator of a law simply because of the President’s belief that the law is oppressive.”  

This doctrine supported by Judge Kavanaugh would mark a very significant change in the law (<i>see generally</i> comments by Michael McConnell, Michael Dorf, John Yoo, Charles Krauthammer as well as George Washington (saying "it is my duty to see the Laws executed: to permit them to be trampled upon with impunity would be repugnant to" that duty) and Thomas Jefferson (saying the Sedition Act was not merely unwise or oppressive but unconstitutional)).  Therefore, it is well worth considering In Re Aiken County during this turbulent SCOTUS nomination season.

MICHAEL RAMSEY adds:  For other views of Judge Kavanaugh by two of his former clerks, see here by Jennifer Mascott (Georgetown) at Notice & Comment blog, and here by Sarah Pitlyk at NRO. (Via How Appealing).

FURTHER UPDATE: David Lat at Above the Law says it will be Kavanaugh or Judge Raymond Kethledge: The Supreme Court Sweepstakes: The Latest State Of Play — And The Case For Judge Kavanaugh.

UPDATE/CORRECTION (by Andrew Hyman) (July 4): Due to a glitch, the sixth paragraph above (the one that begins "Kavanaugh dissented from Judge Silberman's opinion ....") should be replaced with this: "

The opinion of Chief Justice Roberts and the dissent of Justice Scalia agreed with each other on this point, and Scalia incisively said: 'That the penalty is to be ‘assessed and collected in the same manner as taxes’ refutes the proposition that it is a tax for all statutory purposes, including with respect to the Anti-Injunction Act.'  Scalia’s observation about the plain text in turn refutes Judge Kavanaugh’s assertion that, 'If we are to give effect to the plain text of the statute, the Anti-Injunction Act must bar pre-enforcement suits challenging the Affordable Care Act’s penalties for failure to have health insurance.'