Marty Lederman on Zivotofsky v. Kerry
Michael Ramsey

At Just Security, Marty Lederman has a series of interesting posts on Zivotofsky v. Kerry, with this one focused on the exchange between Justice Thomas and Justice Scalia:  Thoughts on Zivotofsky, Part Four: Justice Thomas as constitutional iconoclast (or, “What was so terrible about King George III, anyway?”).

Professor Lederman seems especially upset by the proposition that Congress' power to carry into execution the powers of other branches does not allow Congress to limit the power of other branches:

As I noted in my previous post, the other eight Justices in Zivotofsky strongly affirm Congress’s authority to enact laws “necessary and proper” to regulate the President’s own constitutional authorities.  (They disagree among themselves as to whether that congressional power to restrict the President carries over to statutes regulating the President’s recognition power; but otherwise, they express similar views of Congress’s extensive powers to limit or direct the President in the area of foreign affairs.)

Justice Thomas would reject that well-established understanding altogether.  As he has done in recent separate opinions in cases such as ComstockKebodeaux and Gonzales v. Raich, he articulates a dramatically constricted view of Congress’s necessary and proper power, in which much of what Congress has done over the course of our constitutional history would be deemed not “proper.”  In particular, when it comes to legislation regulating the conduct of the other two branches, Justice Thomas would hold that such a law is not proper if “the branch to which the power is allocated objects to the action” (and perhaps, he adds, even if that branch does not object!).  Thomas favorably cites an article by Sai Prakash and Mike Ramsey to the effect that “Congress has the general power to legislate in support of the President’s foreign policy goals.  But . . . [s]ince it is derivative of the President’s power, it must be exercised in coordination with, and not in opposition to, the President.”

Suffice it to say that this understanding of the Necessary and Proper Clause would effect a fairly radical shift in our constitutional history.

I'm not sure why this is a radical view, and Professor Lederman doesn't explain.  All I meant by it is that if Congress relies on its power to pass laws necessary and proper to carry into execution the President's power, Congress must be acting in a way that is actually furthering the President's power, not restricting it.  Otherwise, simply as a textual matter, I don't it's accurate to say that Congress is carrying into effect; Congress is keeping it from taking effect.  (I assume this is also all Justice Thomas meant).

In Zivotofsky, for example, I don't think one can plausibly say that Congress is carrying into effect the President's recognition power when Congress tells the President what to recognize.  This is Congress taking over the recognition power, not helping the President to exercise it.  It's like me helping you eat your ice cream, not by getting you a spoon, but by eating it myself.

However (and I think there may be some misunderstanding here) this proposition does not prevent Congress from passing laws that restrict or direct the President's foreign affairs powers pursuant to other powers of Congress.  Thus Justice Scalia thought that Congress' naturalization power enabled Congress to make the regulations at issue in Zivotofsky.  If that's right, then Congress can rest on that power, and Congress' power to carry into execution the President's powers is irrelevant.  The only reason the latter power mattered to Justice Thomas is that he thought (and I agree) there was no other relevant power of Congress.

As a result, I don't think Justice Scalia's sneer about King George is appropriate.  The point about Congress' power to carry into execution the President's powers is fairly minor and comes into play only when Congress has no other enumerated power.  Congress has many powers in foreign affairs and I fail to see how having to rely on them would leave Congress powerless to direct foreign affairs to a significant extent.

As a further note, contrary to Professor Lederman I don't think eight Justices rejected Thomas' point here -- I think none of them reached it.  The dissenters thought Congress had power under the naturalization clause.  The majority didn't address the question whether Congress had an Article I power because it thought, in any event, the President had an exclusive Article II power that displaced any power Congress might have.

Michael Paulsen Returns (with an Exam Question)
Michael Ramsey

Just as the judicial supremacy debate seemed to be getting stale (but still ongoing -- see here), Michael Stokes Paulsen (who in a sense started it all) is back with an exam question testing the binding nature of an indisputably wrong Supreme Court decision.

The question is here.

His "model answers" to the four parts of the exam are herehere, here and here.

I commit to taking the exam at some point, once a pending deadline has been met.


Departmentalism versus Judicial Supremacy – Part I: Some Preliminary Distinctions
Mike Rappaport

Since I was away on vacation when this debate began, I am coming late to the party.  But I have some distinctive views on this issue and so I thought I would write some posts about the matter.

I should start out by saying that I have something of an intermediate view of the matter – I recognize that both sides have some strong points to make.  In the end, I stand much closer to the judicial supremacy side, but for different reasons than at least some of those defending the position.

I originally encountered this issue in law school and especially at the Meese Justice Department when Attorney General Meese gave a speech defending departmentalism.  I initially was attracted to a moderate departmentalist position, but over time I began to have second thoughts.  By the time I published this paper (here and here) in 1993, I had already moved towards seriously doubting the departmentalist position.  And I have only become more skeptical over time.

Let me start by drawing some distinctions.  In general, departmentalism is the view that each department or branch of the federal government makes decisions as to the law based on its own views.  Thus, the courts are not bound by the decisions of the Congress or the President.  And the Congress and the President are not bound by the decisions of the courts.  By contrast, judicial supremacy is the view that the Congress, the President (and the states) are required to follow the decisions of the courts.  (The recent debate has focused on constitutional questions, but it need not do so.  To conform to what others are discussing and to avoid making things too complicated, I will generally limit myself to constitutional matters.)

This general statement of departmentalism, however, glosses over a key distinction – the distinction betweeen departmentalism as to judgments and departmentalism as to precedents.

Departmentalism as to judgments holds that the executive (and the Congress) are not required even to follow the judgments of the courts.  Consider the following extreme example.  The executive branch imprisons an individual, who seeks a writ of habeas corpus and prevails in the courts.  While the courts order the executive to release the individual, the President disagrees with the court’s view of the Constitution and refuses to follow the order.  Under departmentalism as to judgments, the President’s action here is lawful, because he is not bound by the constitutional views of the courts.

By contrast, under departmentalism as to precedents, the President’s action here would be unlawful.  While the President is not obligated to follow the court’s constitutonal views in future cases, he is required to follow the judgments of the courts in specific cases.  Thus, the President must release the individual involved in this example.  In a future case, the President would not be required to follow the court’s decision – its precedent – until a court issued a judgment.

For the most part, I will ignore the departmentalism as to judgments position – even though a few commentators appear to hold it – on the ground that it is an extreme minority position and one that has very little basis in the original materials.  I know of no real originalist evidence that supports it and it has the enormous problem of rendering judicial decisions to be effectively nonbinding, which is inconsistent with a large amount of originalist evidence.

Thus, the real question is whether judicial supremacy or departmentalism as to precedents is the correct position.

(Cross posted at the Liberty Law Blog) 

Mila Sohoni: Novel Questions and the Avoidance Canon
Michael Ramsey

My colleague Mila Sohoni's article The Problem with “Coercion Aversion”: Novel Questions and the Avoidance Canon is now published by the Yale Journal on Regulation.  It takes up Justice Kennedy's suggestion, in the King v. Burwell oral argument, that the Court should construe the statute to allow subsidies on federal health insurance exchanges because otherwise it might be regarded as unconstitutionally coercing the states into establishing their own exchanges.  The article argues, however: 

Modern avoidance has two justifications:  honoring Congress’s presumed intent not to legislate unintentionally close to a constitutional line and preventing courts from unnecessarily issuing constitutional opinions.  The logic of these justifications disintegrates when the putative constitutional problem is a novel question of first impression that crystallized only after Congress legislated.  Congress can’t be presumed to have legislated in light of new constitutional problems that were not evident at the time of lawmaking, and the Court can’t claim to be leaving constitutional law undisturbed when its avoidance holding itself manufactures new constitutional doubts.  As a result, the Court should apply the canon to avoid truly novel constitutional problems only if it has exhausted other available tools of statutory interpretation, and even then only in preference to actual constitutional invalidation.

For King, this principle boils down to a simple syllogism.  Because (1) the constitutional problem of coercion by regulatory threat is novel; and because (2) the justifications for the modern avoidance canon disintegrate where the problem being avoided is novel; therefore (3) the Court should use coercion aversion to resolve King only as a last resort.  In King, an alternative avenue for resolving the case is necessarily available to a justice who would otherwise use the avoidance canon to circumvent this novel problem.  To avoid the ostensibly coercive reading of the statute, a justice must conclude that an alternative, non-coercive construction of the statute is “fairly possible” or “reasonable.”  But if there’s a “reasonable” reading of the ACA whereby tax credits are not linked to the creation of state exchanges, then a fortiori the ACA must fail to state unambiguously the conditions on the availability of tax credits—which would run afoul of the federalism clear-statement cases that require Congress to impose such conditions in unmistakable terms. Consequently, a justice inclined towards coercion aversion need not and should not rely on it to resolve the case—even if that justice would rule that a clearly worded regulatory threat of this kind was unconstitutional if she were unavoidably confronted with that novel question on the merits.


Michael Dorf and Josh Blackman on Zivotofsky v. Kerry
Michael Ramsey

At Dorf on Law, Michael Dorf: Zivotofsky May Be Remembered as Limiting Exclusive Presidential Power. From the conclusion:

... [O]ver the long run, I suspect that Zivotofsky will come to be seen as a relatively narrow ruling. Even Justice Jackson in Steel Seizure recognized that there could be cases in which an Act of Congress invalidly interferes with the president's exclusive powers. He described presidential power in case of such a conflict as at its "lowest ebb." He did not say truly exclusive presidential power is non-existent.

Indeed, if I am right, then just as Hamdi v. Rumsfeld is now routinely cited for Justice O'Connor's sweeping line that "a state of war is not a blank check for the President when it comes to the rights of the Nation’s citizens," even though the Hamdi Court allowed military detention of citizens, so too, Zivotofsky's repudiation of the broad language of Curtiss-Wright will come to overshadow the fact that the Court ends up invalidating an Act of Congress as unduly interfering with an exclusive presidential power.


It hurts, though, that earlier in the post Professor Dorf says that Justice Thomas' invocation of the residual theory of executive foreign affairs power is something close to Curtiss-Wright's extraconstitutional and exclusive presidential power foreign affairs power.  The central point of the first three chapters of The Constitution's Text in Foreign Affairs is that they are radically different theories.

Meanwhile, Josh Blackman notes 5 Questions from Zivotofsky that Justice Thomas raised but were “not necessary to resolve.”


Jeremy Jacobs on Utah Prairie Dogs
Michael Ramsey

At Greenwire, Jeremy P. Jacobs: Legal fight over prairie dog could chew hole in ESA (giving interesting background on People for the Ethical Treatment of Property Owners v. U.S. Fish & Wildlife Service, the endangered species/commerce clause case discussed here).  It begins:

The Utah prairie dog -- tawny-furred, with black eyebrows and white-tipped tails -- looks like it hopped out of a Disney cartoon.

But the little burrowing rodent is seen as a monster in southwest Utah.

"Go talk to five people who live here and ask about the prairie dogs, and you're going to get an earful," said Matt Munson, a lawyer leading opposition here to federal efforts to protect the prairie dog under the Endangered Species Act. "Everyone has been impacted. People have lost businesses, people have lost their homes. People have been bitten. Their dogs have died. You name it, there have been all types of issues."

Munson and a group of property owners took the Fish and Wildlife Service to court over species law's "take" provision, which bars killing or harassing prairie dogs. And last November, a federal district judge in Utah sided with the Cedar City group, striking down the prohibition because it violated the Constitution's Commerce Clause. The law, the court held, cannot regulate the activity of a species that exists in just one state and has no impact on interstate economic activity.

The ruling shocked environmentalists and emboldened conservatives who had long questioned the take provision's constitutionality.


Suddenly, the government's appeal of the prairie dog decision has become one of the country's most important environmental cases.

Also one of the most important commerce clause cases.


SCOTUSblog Symposium on Zivotofsky v. Kerry
Michael Ramsey

SCOTUSblog's symposium on Zivotofsky v. Kerry is up, with contributions from Curtis Bradley (Duke), Eugene Kontorovich (Northwestern), Alan Morrison (George Washington) and me.  Here are the links: 

Zivotofsky and pragmatic foreign relations law (Bradley)

Zivotofsky was not about recognition by Congress or the President (Kontorovich).

President wins in Zivotofsky: Will there be another battle? (Morrison)

Justice Thomas gets it right in Zivotofsky (me)

All the contributions are excellent.  Here I want to briefly take issue with one aspect of Professor Bradley's insightful comments.  One of his central points is that the majority opinion in Zivotofsky is functionalist rather than formalist, and as such may undermine the suggestion (made by Harlan Cohen and by Ganesh Sitaraman and Ingrid Wuerth) that the Court is "normalizing" foreign relations law.

My counterpoint is: "functionalist" (or "not normalizing") compared to what?  

Curtiss-Wright, the Court's most aggressive statement on presidential power in foreign affairs (albeit mostly in dicta) claimed (a) that the U.S. foreign affairs power did not arise from the Constitution but rather from the inherent nature of sovereignty; and (b) that U.S. foreign affairs power was principally lodged in the executive because the executive was most suited to exercise it.  Dames & Moore v. Regan (applying the concurrences from Youngstown) claimed that the interactions between Congress and the President could be derived from speculation about what Congress had "acquiesced" to as a result of its non-action with respect to somewhat activities (and this was supposedly an improvement on Curtiss-Wright!).  These cases are about as far from the text and original meaning of the Constitution as it's possible to get.

Justice Kennedy's opinion in Zivotofsky is an enormous improvement.  First, Kennedy rejects Curtiss-Wright -- by name, but also by looking to the text and history of the Constitution to find the meaning of a particular power, rather than relying on a generalized foreign affairs power.  Second, he relies on a particular clause -- the ambassador reception clause -- to establish a particular presidential power.  Third, Kennedy relies on both history and structural considerations to find that power exclusive.  (Professor Bradley calls this latter move functionalism, but I think it is entirely permissible, even to a formalist, to ask whether the specific power in question is in its nature the type that needs to be exclusive -- indeed, that's part of my argument for why the declare war clause is exclusive to Congress.).  Fourth, the holding is categorical: that the president's recognition power is exclusive, period -- not that the recognition power is exclusive in this case, under some balancing test that may or may not apply indeterminately in later cases.

True, there's a bit more on modern needs and practices in the majority opinion than a formalist would like to see, and true also I think the majority is wrong about the scope of the reception power (as I say in my contribution, and as Eugene Kontorovich also argues at greater length in his).  But especially compared to Curtiss-Wright (or Dames & Moore), the Zivotofsky majority is more formalist, more aligned with ordinary constitutional adjudication, and more tied to text and historical meaning, than has often been the case in foreign relations adjudication.  So I would count it in favor of the Cohen/Sittarman/Wuerth thesis, not against it.

The Judicial Supremacy/Judicial Equality Debate Continues
Michael Ramsey

Ed Whelan responds to Randy Barnett here and here, at NRO Bench Memos.

Evan Bernick responds to Ed Whelan at Huffington Post: Judicial Equality and Its Critics: Dispelling the Myth of Majoritarianism.

I'm hesitant to prolong this discussion, but here's one further thought.  Barnett and Bernick seem to see the debate as mostly involving the powers of the Court versus Congress.  But I see it also (and perhaps even more so) about the Court versus the President.  At least the strong form of Ed Whelan's position really amounts to executive supremacy.  Consider:

1. The President seizes your property.  You sue to get it back.  The Court agrees that the President acted unconstitutionally and orders the property restored.  The President says that the Court got it wrong.  You don't get your property back.

2.  Congress passes a law saying the President must restore your property.  The President says the law is unconstitutional and he won't enforce it.  You sue under the statute.  The Court agrees that the President violated the statute and the statute is not unconstitutional.  The President says that the Court got it wrong.  You don't get your property back.

3.  You speak out against the President's abuses.  The President puts you in administrative detention.  You bring a petition for a writ of habeas corpus on the ground that the detention is not authorized by law.  The Court grants the writ. The President says that the Court got it wrong.  You stay in jail.

4.  Congress directs that the President end your administrative detention.  The President says the statute is unconstitutional.  You sue for your release.  The Court agrees that the statute is not unconstitutional.  The President says that the Court got it wrong.  You stay in jail.

5.  You sue a state official for acting unconstitutionally.  The Court agrees with you and orders relief.  The state official declines to comply.  You ask the federal government to step in.  The President says the Court got it wrong.  You don't get what you want.

6.  At your request, Congress directs the state official to stop acting unconstitutionally.  The state official declines to comply.  The President says Congress' statute is unconstitutional.  The Court says it is not.  The President says the Court got it wrong.  You don't get what you want.

The President, who controls enforcement, gets the last word.

Of course there are caveats.  Congress can impeach the President and remove him from office -- if it can muster two-thirds of the Senate to convict.  So it is really the President plus two thirds of the Senate who are supreme.

And, it will be said, Presidents won't take these extreme actions because of the public outcry they would produce.  That is likely true, at least most of the time, as things now stand.  But that is because most people don't believe the President has authority to refuse to obey a court decision, even an incorrect one.  If that changes, so will the cost to the President of refusing to comply.

In sum, I think it extraordinarily unlikely that the framers created a system of executive supremacy (even a system of executive supremacy qualified by impeachment/removal and by the possibility of popular opposition).


Originalism in Zivotofsky v. Kerry
Michael Ramsey

Today's opinion in Zivotofsky v. Kerry found unconstitutional Congress' requirement that U.S. citizens born in Jerusalem be able to have their passports reflect birth in Israel.  (Majority by Justice Kennedy; partial concurrence, partial dissent by Justice Thomas; dissent by Chief Justice Roberts; dissent by Justice Scalia, joined by Roberts and Alito).

Jack Goldsmith at Lawfare thinks the opinion is a significant victory for the executive branch. I'm not so sure; the majority opinion is written narrowly and tightly focused on the President's exclusive recognition power (wrongly, in my view).  

I'll have an invited comment at SCOTUSblog posted shortly.  My brief takeaway is that Justice Thomas' concurrence has the right approach: the President wins because Congress does not have power to establish "United States Policy with Respect to Jerusalem as the Capital of Israel," as the statute's title purports to do (see 116 Stat. 1365).  Deciding U.S. policy with respect to whether or not Jerusalem is part of Israel does not have anything to do with receiving ambassadors, but it is part of the President's diplomatic power.  That power isn't exclusive as to things over which Congress also has power, but here Congress lacks an enumerated power.  Thomas relies on extensive originalist materials in support to this framework (persuasively, in my view).

Justice Scalia's dissent is also originalist but in my view is far too lax in policing Congress' enumerated powers.  He argues that Congress can insist on "Israel" in the passport of a Jerusalem-born citizen because "[t]he birthplace specification promotes the document’s citizenship authenticating function by identifying the bearer, distinguishing people with similar names but different birthplaces from each other, helping authorities uncover identity fraud, and facilitating retrieval of the Government’s citizenship records."  But this is an imagined function; as the title of the provision makes clear, the point is to make a statement, not to facilitate recordkeeping.  And the provision allows but does not require inclusion of "Israel" (at the passport-holder's option), further underscoring that the provision's role is symbolic, not administrative.

The majority opinion by Justice Kennedy ranges over precedent, practice, recent history, and functional needs, but also devotes substantial attention to immediate post-ratification understandings (with a much appreciated cite to my article with Sai Prakash on executive foreign affairs power, albeit to the part Prakash mostly wrote).

At Opinio Juris, there are further comments on the case from Julian Ku, Peter Spiro (who thinks, perhaps optimistically, that the opinion is the end of Curtiss-Wright) and Deborah Pearlstein.

And Josh Blackman has extensive excerpts from the opinions and his commentary here.

Renee Lerner on the Civil Jury
Michael Ramsey

Renee Lettow Lerner (George Washington) has been guest-blogging at Volokh Conspiracy on her scholarship on the Seventh Amendment and the right to jury trials in civil cases.  Here are the posts:

The Uncivil Jury Part 1 -- American's Misplaced Sentiment about the Civil Jury

Mike Rappaport had these posts earlier on Professor Lerner's writing in this area: here, here, here, and here.
This is a very interesting field about which I know nothing.  I think this is an interesting suggesting, however (from Professor Lerner's fifth post linked above):
One possibility is to construe the Seventh Amendment, at least, not to require jury decisions in cases involving multiple parties, claims, and complicated facts and law. These types of cases were not given to ordinary lay juries “at common law.” In a future article, I’ll explain this interpretation in detail.
My guess is that our current view of when civil juries are required is not very well linked to the eighteenth-century idea of "Suits at common law," because I doubt we have a clear understanding of what that phrase meant.  So this sounds like an excellent project.
Meanwhile, here is an alternative view on the merits on the civil jury (although not an originalist one).