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22 posts from September 2018


The Law of Nations as of 1789 Forbade Immigration Without Permission, Contra Professor Somin
Andrew Hyman

The Constitution gives Congress power “To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations.”  In a September 12 essay titled "Does the Constitution Give the Federal Government Power Over Immigration?”, Ilya Somin writes (incorrectly) that Congress has no general power under this clause to restrict immigration:
The power to “define and punish” offenses against “the law of nations” presumably allows Congress to restrict the movement of pirates and other violators of international law. But there is no general enumerated power giving Congress the authority to exclude migrants simply because they are foreign nationals or were born outside the United States.
It is true that the law of nations as it stood in 1789 (when the Constitution took effect) did not generally consider immigration to be an offense.  However, it did generally consider immigration-without-permission to be an offense.  Blackstone wrote: “Upon exactly the same reason stands the prerogative of granting safe-conducts, without which by the law of nations no member of one society has a right to intrude into another.”  So, immigration without permission generally violated the law of nations. And, the U.S. Supreme Court has for centuries correctly said that the permission to immigrate can be either express or implied.
In short, immigration into the United States violates the Define and Punish Clause if it occurs without permission.  And, Congress has plenty of power to grant such permission; if the immigration happens aboard a commercial vessel, then obviously the Foreign Commerce Clause empowers Congress to grant permission.  Additionally, Congress can grant such permission to immigrate under its naturalization power.
Further questions remain, such as whether states have a concurrent power to license immigration.  It seems clear from the Constitution’s Migration or Importation Clause that states do have concurrent power over immigration: “The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.”  
There are two main kinds of concurrent powers: those subject to federal preemption, and those not subject to federal preemption (like the power to tax private citizens).  If states possess concurrent power to allow immigration, and if that state power is not subject to federal preemption, then that would somewhat support Professor Somin’s position.  But the Migration or Importation Clause indicates that congressional power to allow immigration preempts the concurrent state power to allow immigration.
MICHAEL RAMSEY ADDS:  On this point, see also Rob Natelson's similar argument, summarized here.


Frank Bowman: British Impeachments (1376 – 1787) & the Present American Constitutional Crisis
Michael Ramsey

Frank O. Bowman III (University of Missouri School of Law) has posted British Impeachments (1376 – 1787) & the Present American Constitutional Crisis on SSRN.  Here is the abstract:

Impeachment is a British invention. It arose as one of a set of tools employed by Parliament in its long contest with the Crown over the reach of the monarch’s authority. British impeachment practice matters to Americans because the framers and ratifiers of the U.S. Constitution were the conscious heirs of Britain’s political evolution. The founders’ understanding of British history influenced their decision to include impeachment in the American constitution and their conception of how impeachment fit in a balanced system of ostensibly co-equal branches. It also produced two central features of American impeachment: the limitation of remedy to removal from office and the definition of impeachable conduct, particularly the famous phrase “high Crimes and Misdemeanors” adopted directly from British parliamentary language. Therefore, at a moment when impeachment talk is rampant, a reexamination of British impeachments is in order. This Article is the first comprehensive analysis of the entire arc of British impeachments from 1376 to 1787 since Raoul Berger’s classic 1974 study. It gives particular attention to issues raised by the current presidency. The Article traces the evolution of Parliament’s use of impeachment and of the categories of behavior customarily designated as impeachable. These embraced, but were never limited to, indictable crimes, and included: armed rebellion and other overt treasons; common crimes like murder and rape; corruption (particularly the abuse of office for self-enrichment); incompetence, neglect, or maladministration of office; and betrayal of the nation’s foreign policy interests. The last of these categories has not been emphasized in modern American scholarship, but assumes particular salience in the present moment. Finally, and crucially, the Article concludes that, although Parliament sometimes used impeachment for less dramatic ends, its one indispensable function was removal of officials whose behavior threatened the constitutional order by promoting royal/executive absolutism over representative institutions and the rule of law. Critics of the incumbent president may find this thread of British precedent both poignant and potentially useful.

Relevant to my comments yesterday, so far as I know Professor Bowman is neither a self-identified originalist nor a professionally trained historian.  Yet I expect he thinks it uncontroversial to write "British impeachment practice matters to Americans because the framers and ratifiers of the U.S. Constitution were the conscious heirs of Britain’s political evolution. ... Therefore, at a moment when impeachment talk is rampant, a reexamination of British impeachments is in order."  And I expect he thinks it uncontroversial and useful to undertake this impressive project.  And he is, in my view, right on both points.  That's not because originalism is necessarily the right approach to constitutional interpretation; it's because most theories of constitutional interpretation have some role for historical inquiry, which they assume is a useful and feasible enterprise.  The debate over originalism is about how much weight to give historical conclusions such as Professor Bowman's, not whether his project is a coherent one.


Was Hayek an Originalist?
Mike Rappaport

Two of my academic interests – one might even call them obsessions – have been Friedrich Hayek and Originalism. So, it is natural that I have long thought of writing about whether Hayek was an originalist. But now 11th Circuit Court Judge William Pryor has written an article on the closely related subject “Hayek and Textualism.” Judge Pryor’s piece is very good and I strongly recommend it.

The interesting thing about Hayek’s writings is that they contain some statements that appear to support originalism and others that oppose it. So, the answer to my question is not entirely clear. But, in the end, I conclude (with Pryor) that Hayek was an originalist of a certain sort – he favored following the Constitution’s original meaning understood not merely as the words of the Constitution, but also the principles that the enactors intended to be followed.

An example of Hayek’s support for originalism is the following statement on the American contribution to constitutionalism: Americans “regarded it as a fundamental doctrine that a ‘fixed constitution’ was essential to any free government and that a constitution meant limited government.”

But Hayek also made statements that evidenced tension with originalism: For example, he wrote that “in most instances in which judicial decisions have shocked public opinion and have run counter to general expectations, this was because the judge felt that he had to stick to the letter of the written law.” Especially the later Hayek seemed to believe that written language often could not fully capture our understanding of the workings of complex ideas and processes.

For these reasons, Hayek appeared to believe that the Constitution should be understood more broadly than the original meaning of the constitutional text. Criticizing developments in the 19th century, Hayek wrote:

gradually, as the ideal of popular sovereignty grew in influence, what the opponents of an explicit enumeration of protected rights [in the Bill of Rights] had feared happened: it became accepted doctrine that the courts are not at liberty ‘to declare an act void because in their opinion it is opposed to a spirit supposed to pervade the constitution but not expressed in words.’

As Pryor explains, Hayek here means by "spirit":

the structure of the Constitution and the traditional Anglo-American legal guarantees of individual liberty the Constitution was understood to preserve – based on what he described as its ‘design,’ ‘discussions of the period,’ and early judicial decisions.

Now, this understanding of the Constitution as including its spirit might seem nontextualist and even nonoriginalist. But Hayek defends himself by arguing that the Ninth Amendment was intended to protect these unwritten protections. He views Alexander Hamilton’s opposition to the Bill of Rights as based on the concern that “the Constitution was intended to protect a range of individual rights much wider than any document could exhaustively enumerate and that any explicit enumeration of some was likely to be interpreted to mean that the rest were not protected.”

Hayek might defend his understanding of the Constitution based on his reading of the Ninth Amendment. And he also argues that the 14th Amendment’s Privileges or Immunities Clause similarly protects unwritten rights.

If Hayek is correct about the 9th and 14th Amendments, then perhaps he could defend his understanding of the Constitution as a type of originalism. Of course, that’s a big if. Randy Barnett has a similar (but much more developed and defended) understanding of these amendments. In a future post, I hope to discuss the proper understanding of these Amendments.

Eric Segall on Originalism and History
Michael Ramsey

Ar Dorf on Law, Eric Segall: Originalism Without History: A Response to Professor Randy Barnett (responding to Professor Barnett's comments on the Kvanaugh hearings, noted here).  From the introduction:

At the Volokh Conspiracy, Professor Randy Barnett has a long post about Brett Kavanaugh's testimony concerning originalism (and other matters). Barnett focuses some of his remarks on the following three questions put to Kavanaugh by Senator Kennedy referring to District of Columbia v. Heller: "Doesn't the originalist approach just require a judge to be an historian? And an untrained historian at that? Wouldn't we be better off hiring a trained historian to go back and look at all of this?"

These questions, of course, suggest a critique of originalism made by many legal scholars and academic historians: the study of history is and should be a rigorous discipline requiring the person doing the studying to immerse herself in the peoples, traditions, values, and events of long ago. Trying to decide what the text of a 1788 or 1868 document meant at the time is simply not an exercise judges, law clerks, and lawyers are trained to do.

Kavanaugh, not surprisingly, ducked these questions by saying that for "most ... constitutional provisions, there's been a body of cases over time interpreting the provision, and you don't have to do the kind of excavation" the Heller Court did.

Barnett's response was different:

[J]udges should not be doing the historical research that originalism requires... this research should be done by constitutional scholars--inside and outside of the law schools--whose evidence and conclusions can be challenged by other scholars in advance of any litigation. Then judges can select the arguments they find most persuasive, as they do when they evaluate competing expert testimony. Indeed, in Heller both Justices Scalia and Stevens relied on outside scholarship by both historians and legal scholars for the sources they mustered in defense of their conclusions.

Professor Segall objects: 

This is all just a little surreal. Are constitutional law scholars supposed to ascertain the legal meanings of words used in 1787 without immersing themselves into the historical practices of the time? More importantly, "it is originalism’s reliance on the past that makes it authoritatively attractive to the bench and bar." Imagine if Justice Thomas were to announce that "originalism isn't really about historical accuracy which is why my law clerks and I rely on it."

The reality, of course, is that originalism as practiced by judges, lawyers, and law professors is not and cannot be about gleaning historical meaning because 1) most are not trained to do so, 2) the constitutional text is too vague and its history to contested to justify firm or even persuasive conclusions about most modern day problems, 3) the overlay of hundreds of years of Court decisions has changed the meaning or the application of the imprecise text that leads to real cases; and 4) lawyers are trained as advocates, not impartial recounters of historical meanings or events.

If a case happens to implicate clear history then of course the original meaning of the text should be one factor in judicial consideration of the issues. But these cases are few and far between. Moreover, the history has to be accurate all things considered, not just in the parsing of words. As Patrick Charles has observed, "by accepting the premise that originalists only need to be familiar with a 'subspecialty of history' or the 'investigation of legal meanings,' originalism fails by facilitating mythmaking more so than fact-finding."

Indeed. Originalism is substantially myth, or maybe more accurately, an article of faith.

Unsurprisingly (since my scholarship is mostly about investigating the historical meaning of parts of the Constitution) I lean toward Professor Barnett's view -- though at times I think the inquiry is quite difficult, and that legal scholars can and should learn much from historical accounts.

It's important to see, however, that Professor Segall's attack (and others like it) is not really an attack on originalism but an attack on conventional constitutional interpretation.  As non-originalist Professor Mitchell Berman of the University of Pennsylvania has written (in The Challenge of Originalism, p. 250), "Virtually nobody denies that the original meaning of a constitutional provision is always relevant to the interpretive task, and few theories deny that it is frequently a weighty consideration." Or to quote Berkeley Law Professor Amanda Tyler, from her magnificent history of the habeas suspension clause, "Although legal jurists and scholars argue over whether history should be the decisive factor in ascertaining the meaning and application of the Constitution, no one seriously questions that history is deeply relevant to the debate." (Habeas Corpus in Wartime, pp. 8-9).  Multiple contemporary controversies, from (to pick one area making recent headlines) the President's duties under the emoluments clause to the President's control over investigation and prosecution to the meaning of "high Crimes and Misdemeanors" in the impeachment clause to the President's power have been and are being debated in large part in terms of the original meaning of the relevant clauses.  Countless essays, articles and books have been written regarding the historical meaning of constitutional clauses or of the Constitution more broadly -- not just by originalists but by people from all parts of the political spectrum, by people representing a wide range of interpretive theories, and by people who are simply interested in the historical answers.

What distinguishes originalists from conventional legal scholars is not that they think the Constitution's original meaning can be usefully investigated by legal scholars, advocates and judges.  It is that they think the Constitution's original meaning, if satisfactorily identified, should be decisive (or at least, decisive absent directly contrary precedent) in modern adjudication.  Professors Tyler and Berman both make this point; as Professor Berman writes (p. 250):  "What makes originalism so controversial is precisely the position it takes on what I have called in other work the dimension of interpretive strength.  Non-originalists do not deny that the original meaning constitutes a reason, possibly even a weighty reason, in favor of a given contemporary interpretation; they only deny the originalist contention that original meaning (or the like) is a conclusive or exclusive reason to a adopt a particular interpretation."

In sum, Professor Segall's objection is property directed not at originalism but at the wider legal culture of viewing the Constitution at least in part through a historical lens.


Randy Barnett on Judge Kavanaugh on Originalism
Michael Ramsey

At Volokh Conspiracy, Randy Barnett has excerpts from the Kavanaugh hearings in which Judge Kavanaugh discusses originalism with various Senators including Mike Lee, Ted Cruz and John Kennedy.

Kavanaugh Testimony, Part 1: On Originalism.  Here's a bit from Judge Kavanaugh on intent and public meaning, and the originalist case for Brown v. Board of Education:

[Judge Kavanaugh, in response to a question by Senator Lee]:  Now, it's very careful when you talk about originalism to understand that people are hearing different things sometimes. So, Justice Kagan, at her confirmation hearing, said we're all originalists now, which was her comment. By that, she meant the precise text of the Constitution matters, and, by that, the original public meaning—of course, informed by history and tradition and precedent. Those matter, as well. There's a different conception that some people used to have of originalism, which was original intent. In other words, what did some people subjectively intend the text to mean, and that has fallen out of the analysis because, for example, let's just take the 14th Amendment's equal protection clause. It says right in the text "equal protection" – equal means equal.

As the Supreme Court said in Strauder, what is that but the law shall be the same for the black and the white – that's Brownv. Board, which focuses on the text. But there were some racist members of Congress who didn't think it should apply in that way to certain aspects of public life. But if you're paying attention to the text, you don't take account of those subjective intentions, nor is it proper as a general proposition to take account of the subjective intentions. They could be evidence in certain cases—the First Amendment, for example—of the meaning of the words.

[…] You don't follow the subjective intention. So, original public meaning originalism—what I have referred to as constitutional textualism, and what Senator Cruz referred to as constitutionalism—I think those are all referring to the same things, which is the words of the Constitution matter. Of course, as I've said repeatedly, you also look at the history. You look at the tradition. Federalist 37 tells us to look at the liquidation of the meaning by historical practice over time. And then you look at precedent, which is woven into Article III, as I said, in Federalist 78.

Professor Barnett comments:   "This statement indicates that Kavanaugh is well aware of the modern approach to originalism that has been developed over the past 20 years: Original Public Meaning Originalism, which he was at pains to distinguish from original framers intent originalism."

Kavanaugh Testimony, Part 2: Colloquy with Senator Kennedy.  Senator Kennedy poses some interesting and somewhat skeptical questions about originalism, leading among other things to this exchange:


[I]f you look at the Heller case—and I'm talking about the DC v. Heller by the US Supreme Court—it wasn't a balancing case. You made that point clear at the court of appeal level. It was a text, history and tradition case. And Justice Scalia wrote the majority opinion. Justice Stevens dissented, and they both took an originalist approach. And I went back and looked. Scalia, this is what he relied on: founding era dictionaries, founding era treatises, he looked at English laws, American colonial laws, British and American historical documents, colonial era state constitutions – he looked at post-enactment commentary on the Second Amendment. And Justice Stevens, also using an originalist approach, looked at the same documents and then he added, he relied on linguistic professors, an 18th century treatise on synonymous words, and a different edition of the colonial era dictionary that Justice Scalia used. Pretty impressive. Here's my question: Doesn't the originalist approach just require a judge to be an historian? And an untrained historian at that? Wouldn't we be better off hiring a trained historian to go back and look at all of this?


Well, the Heller case was one of the rare cases where the Supreme Court was deciding the meaning of a constitutional provision without the benefit of much, if any, relevant precedent. On most of the constitutional provisions, there's been a body of cases over time interpreting the provision, and you don't have to do the kind of excavation that Justice Scalia and Justice Stevens did in that case because it's been done before. The reason, I think, why the Second Amendment posed a challenge in that case, in terms of figuring it out, is the prefatory clause in the Second Amendment, which the question was: Did that define the scope of the right indicated afterwards – the right of the people to keep and bear arms shall not be infringed? Or did the prefatory clause merely state a purpose for which the right was ratified, and, therefore, you read the right as written: the right to keep and bear arms shall not be infringed. To figure out what the prefatory clause meant, you had to figure out, as a general proposition, how legal documents at the time used prefatory clauses, and what the purposes of those were, and that required a lot of historical excavation by the two justices who had the competing positions.

Professor Barnett comments:   

Unlike the Democratic senators, Senator Kennedy was able to marshal somewhat of a critique of Judge Kavanaugh's originalism. If Kennedy, a supporter of the nominee can manage this, one would think that Democratic Senators who object to Kavanaugh's originalism could do the same. But, for whatever reason, they did not even try. Unfortunately, Kavanaugh did not directly respond to Kennedy's challenge of how judges can be historians, asserting instead the rarity with which they may have to do so given the existence of precedent. [

Professor Barnett continues with his own responses whihc seem basically right to me.


Our Bipartisan Due Process Clause
Chris Green

I have posted to SSRN Our Bipartisan Due Process Clause, prepared as part of the big IJ/Law & Liberty Center Fourteenth Amendment symposium at Scalia/Mason this Friday. Here is the abstract:

What it meant to “deprive any person of life, liberty, or property without due process of law” was very well-known to the men who proposed the Fourteenth Amendment: to take away life, liberty, or property without traditional judicial proceedings, except where public safety required it. Congressmen made this very clear, and at great length—but in 1862, rather than 1866.

Download it while it's still got the edgy "under review" watermark--and anyone in the DC area, please stop by on Friday to hassle me about it! Those paying close attention to the Timbs v. Indiana excessive-fines incorporation case will be particularly interested in page 46 footnote 248.

Cato Institute Symposium on Federal Immigration Power
Michael Ramsey

At Cato Unbound, a symposium on federal immigration power, featuring Ilya Somin with the lead article and responses (to come) by Gabriel Chen and John Eastman.  From Professor Somin:

Immigration has become one of the most controversial legal and policy issues on the national agenda, especially since Donald Trump won the presidency on a highly restrictionist platform and began to implement his anti-immigration agenda, seeking to drastically reduce both legal and illegal migration.

Legal debates over immigration have also flourished, such as the recent litigation over Trump’s travel ban order, which the Supreme Court narrowly upheld against claims that it was the result of unconstitutional discrimination on the basis of religion. But few have even considered the possibility that the federal government lacks a general power to restrict immigration to begin with. If such power is absent, many federal immigration restrictions are unconstitutional regardless of whether they might violate individual rights.

And absent it is. If you peruse the list of federal powers in Articles I and II of the Constitution, a general power to restrict immigration is notable by its absence. It just simply is not there. That is not because the Framers only included a small number of very important powers and then left the rest to implication. To the contrary, Article I contains a long and detailed list of congressional powers, including comparatively minor ones, such as the authority to establish “post roads” and “fix the Standards of Weights and Measures.” If the Framers had wanted to give the federal government so massively important a power as the authority to ban immigration, one would think they would have clearly said so.

Legal theorists have developed a vast cottage industry of arguments claiming that the power over immigration can be implied from other authorities given the federal government, or that it is somehow present without being enumerated at all. But these efforts are ultimately unavailing.

The text and the original meaning of the Constitution undercut the notion that the federal government has general authority to restrict immigration, in the sense of having the power to forbid movement to the United States simply on the basis that a would-be immigrant was born abroad and is not a U.S. citizen. The doctrine that Congress has broad “plenary” power over immigration is long established and – today – rarely questioned. But it is actually an emperor walking around without clothes, or at least far more scantily clad than most assume.

(Via Volokh Conspiracy).


Michael Stokes Paulsen on the Justification for Originalism
Michael Ramsey

At NRO, Michael Stokes Paulsen (St. Thomas): Originalism: A Logical Necessity.  It begins:

There is only one proper way to faithfully interpret the Constitution. And that is to ascertain the actual meaning of the words of the text, taken in their proper social and linguistic context.

That meaning must be the objective meaning — not the reader’s subjective understanding or preferred reading. And that meaning must be the original meaning — that is, the meaning the Constitution’s words and phrases would have had to reasonably informed readers of the English language at the time they were used, in context, and accounting for any specialized usages or term-of-art phrases. Any other reading is pure anachronism, a misuse of language. 

This single correct method of constitutional interpretation travels under many names. I call it “original-public-meaning textualism,” emphasizing the text and the requirement that it be taken in its known, original sense. A convenient (if imprecise) shorthand term is simply “Originalism.” It contrasts, sharply, with any of a variety of progressive theories under which the Constitution’s meaning shifts, morphs, evolves, or otherwise transmogrifies to suit the needs or circumstances of the moment — and, typically, to serve the interpreter’s desired political agenda.

There are many good arguments in favor of Originalism: It is less subject to manipulation, produces greater clarity and consistency, better preserves democratic decision-making, and frequently yields better results than any other method. All of these points are true and important.

But the strongest argument for Originalism is simply that it is the method prescribed by the Constitution itself. It is the only method consistent with taking the Constitution on its own terms, as a binding, written document intended to function as supreme law. It is the only method consistent with the terms on which the Constitution claims to be authoritative. It is the only method consistent with the very idea of written constitutionalism. If what one is doing is interpreting a written constitution intended to serve as governing law, as opposed to engaging in some other project, one must take that constitution (literally) on its own terms.


Mark Pulliam on Peter Wallison's New Book on the Administrative State
Michael Ramsey

At Liberty Law Blog, Mark Pulliam: Dismantling the Administrative State (discussing Peter J. Wallison’s "easily-digestible monograph" Judicial Fortitude: The Last Chance to Rein in the Administrative State (Encounter Books, forthcoming 2018)).  From the introduction:

A remarkable movement is underway in the legal world, unlike any other during my lifetime. Growing skepticism regarding the conceptual underpinnings of the “administrative state”—the alphabet soup of powerful administrative agencies that dominate Beltway policymaking—portends imminent retrenchment of well-established understandings (and judicial precedents) that enabled the federal Leviathan. Doctrinal reversals of a significant nature are rare, particularly when they reflect conservative initiatives and overturn the foundations of Progressive governance. Yet we are on the verge of such a dramatic shift.

For half a century—dating to New Deal-era reliance on administrative agencies to “fix” the ostensibly broken machinery of democracy and free markets—it was assumed that “administrative law” is an essential feature of modern life. Specialized expertise by unelected bureaucrats was the “secret sauce” that would remedy the purportedly sclerotic—and old-fashioned—system of checks and balances contemplated by the Constitution. Justice Felix Frankfurter expressed the consensus view when he described administrative law as an essential form of “governmental supervision” that could not be effectively exercised through “self-executing legislation” or the judicial process.

Indeed, there was widespread bipartisan consensus among both politicians and legal scholars that what we now call the administrative state was a good thing—or at least necessary and inevitable. Chevron v. NRDC, the 1984 Supreme Court decision establishing judicial deference to administrative agency interpretation of federal statutes, was the high-water mark of our infatuation with administrative law.


In recent decades, however, the tide of opinion has turned. Some Supreme Court justices (led by Clarence Thomas) have begun to question the reasoning—and even the validity—of once-settled administrative law precedents on originalist grounds. Instead of arguing over divisive issues such as “judicial engagement,” conservative and libertarian legal scholars have united to criticize Chevron and to point out that many features of modern administrative law contravene the separation of powers enshrined in the Constitution (not to mention the plain language of the 1946 Administrative Procedure Act).

And from the discussion of the Wallison book:

Wallison is a knowledgeable Washington, D.C. insider, having served as White House counsel to President Ronald Reagan and general counsel to the U.S. Treasury Department in the Reagan administration.  He now serves as co-director of the American Enterprise Institute’s program on financial policy studies. In Judicial Fortitude, Wallison trods a path previously explored by other scholars, but he manages to find some fresh insights. What makes Wallison’s book notable—and valuable—is that it is relatively brief (166 pages of text), well-written, and accessible to readers who are not administrative law nerds.

Wallison takes the originalist critique of the administrative state beyond merely questioning Chevron; he argues (in chapter 6) that the moribund “nondelegation doctrine” needs to be revived. This compelling analysis is the highlight of the book, a clear demonstration that resuscitating lost wisdom is just as important as trail-blazing scholarship. It is one thing to trim the sails of administrative agencies by making their interpretations (of both statutes and regulations) subject to meaningful judicial review. Article I of the Constitution expressly grants “all legislative powers” to the Congress. Therefore, the threshold question is whether it is constitutional for administrative agencies that are part of the executive branch to promulgate an extraordinary volume of regulations (numbering in the thousands each year) that represent major policy decisions and are the functional equivalent of legislation.

In conclusion:

Wallison contends that the Court’s abandonment of the constitutional function intended by the Framers represents a lack of the judicial “fortitude” that Alexander Hamilton felt was necessary for courts to serve as “faithful guardians of the Constitution.” [5] The Court’s relinquishment of its proper role, Wallison argues, has empowered the administrative state and allowed Congress to cede an unwarranted amount of power to the executive branch.  Notwithstanding a general lack of scholarly enthusiasm for reviving the nondelegation doctrine, Wallison detects “stirrings” at the Supreme Court, counting Chief Justice Roberts and Justices Thomas and Alito as possibly supporting a return to pre-New Deal precedents.

This would not constitute “judicial activism” because preserving the structure of the Constitution is, as Marshall wrote in Marbury v. Madison, “emphatically the province and duty” of the judiciary. The Court’s failure to enforce the nondelegation doctrine constitutes abdication, not restraint.

With President Trump’s appointment of Justice Neil Gorsuch and the nomination of Judge Brett Kavanaugh, the Supreme Court may soon have the votes necessary to change directions. Judicial Fortitude boldly points the way.

And here is the Amazon book description for Judicial Fortitude:

In this book, Peter J. Wallison argues that the administrative agencies of the executive branch have gradually taken over the legislative role of Congress, resulting in what many call the administrative state. The judiciary bears the major responsibility for this development because it has failed to carry out its primary constitutional responsibility: to enforce the constitutional separation of powers by ensuring that the elected branches of government—the legislative and the executive—remain independent and separate from one another. Since 1937, and especially with the Chevron deference adopted by the Supreme Court in 1984, the judiciary has abandoned this role. It has allowed Congress to delegate lawmaking authorities to the administrative agencies of the executive branch and given these agencies great latitude in interpreting their statutory authorities. Unelected officials of the administrative state have thus been enabled to make decisions for the American people that, in a democracy, should only be made by Congress. The consequences have been grave: unnecessary regulation has imposed major costs on the U.S. economy, the constitutional separation of powers has been compromised, and unabated agency rulemaking has created a significant threat that Americans will one day question the legitimacy of their own government. To address these concerns, Wallison argues that the courts must return to the role the Framers expected them to fulfill.


John McGinnis on Originalist Interpretation
Michael Ramsey

At Liberty Law Blog, John McGinnis has a series of posts on methods of originalist interpretation:

Originalism Encompasses Text and Structure

“Democracy” Cannot Unlock the Meaning of the Constitution

How Originalism Addresses Consequences

From the beginning of the initial post:

I had the pleasure of being on panel with Pamela Karlan of Stanford Law School at the Eighth Circuit Judicial conference. There she set forth a view of the “modalities” of constitutional interpretation, arguing that judges should consider a variety of factors in interpreting our fundamental law. She opposed originalism. Indeed, original meaning was not even included as a factor, as I remember.

We did not have a chance to respond to one another directly, because the audience was given the time after our talks to ask questions. But I would have said that originalism of the best kind encompasses modalities that help fix meaning and rightly does not include those that don’t. In a series of posts, I will describe how originalism responds to each of Professor Karlan’s various “modalities.” 

The third post is likely the most important and controversial.  It begins:

In the last two posts, I have argued that originalism can comprehend many of the so-called modalities of constitutional interpretation. That is, while some professors, like Pamela Karlan, argue that interpretation can and should be based on many factors, like text, structure, and consequences, originalism takes account of these as well. One major advantage of originalism as opposed to these modalities is that the interpretive legal rules that were applicable at the time of the Constitution discipline the manner of using these factors to arrive at the meaning of our fundamental law. Interpretive modalities as used by Karlan and others tend to make constitutional interpretation a grab bag of factors where the judge picks out whatever factor will lead to a result that accords with his intuition about justice.

The hardest question for the relation of originalism and the modalities is that of consequences to original meaning. My tentative view is that the interpretive rules of the time may well permit the use of consequential reasoning in limited circumstances. Thus, when the original meaning of the text is otherwise unclear and when the consideration of consequences are those that would help determine whether an interpretation  advances the provision’s purpose and values, this aid to interpretation should be entertained.

I agree with Eric Segall that this approach carries the danger of watering down originalism to the point it's hard to distinguish from living constitutionalism (see his comment on Monday's post here).  But Professor McGinnis has arguments for how it can be contained.