Can the House Sue the President (More Seriously this Time)?
Michael Ramsey

I noted this possibility earlier, but it now seems to be actually happening.  Michael Stern (Point of Order) comments here: U.S. House of Representatives v. Obama: The Problem of Standing.  

Jack Goldsmith has these thoughts: Suing the President for Executive Overreach.  

And Andy McCarthy has even harsher thoughts: Boehner Is Bringing a Whistle to a Gunfight and Boehner Issues Memo Explaining His Feckless Plan to Sue Obama.

As I've discussed before, I'm skeptical of the originalist foundations of modern standing doctrine.  But I'm even more skeptical that the House vs. Obama case is a "Case or Controversy" under the Constitution's original meaning.  It seems to me that Speaker Boehner's principal complaint is the the President isn't doing his job right, in a way that is injuring the U.S. as a whole.  Whatever one thinks "Case or Controversy" is, this can't be it -- or everyone would have standing to challenge everything.

The counter is that the House, as the body that enacted the laws, is especially harmed by the laws'  non-enforcement.  But this claim seems to misunderstand separation of powers.  Congress has power over legislation; the President has power over execution.  If the President misues his power of execution, that doesn't harm Congress (in its legislative capacity) any more than it harms everyone else -- we all have an interest in the President acting constitutionally within his domain.  Similarly, one could say that we all have an interest in the Supreme Court judging a statutory case correctly; but Congress does not have a greater interest than any of the rest of us just because it passed the statute in the first place.

In contrast, in the census litigation Michael Stern discusses in his post, I agree that Congress had a distinct injury.  As he explains:

The essence of the House’s complaint [in the census litigation] was an informational injury, i.e., the illegal census design would deprive it of specific information that it needed to perform its constitutionally mandated duty of re-apportioning the House of Representatives. This is quite different than the “wholly abstract” injury involved in Raines [v. Byrd, the previous cognressional standing case]. ...

By law the president is required to report the results of the decennial census to Congress in the first week of the regular session of the following year (see 2 U.S.C. § 2a (a)). If the president failed to provide the legally required census data, not only would Congress be deprived of specific information to which it was entitled, but the composition of the House itself could be affected.

Thus one can imagine ways in which the Congress' constitutional role gives it a distinct interest in certain types of executive action.  But (as Stern says) this observation suggests a lack of standing in the House v. Obama litigation, because in that case there is nothing like this sort of particularized injury.

I can accept, as an orginal matter, the general proposition that the "Case or Controversy" language means at minimum that everyone can't sue everyone for everything.  How modern standing law derives its particular intricacies from this basic proposition is a mystery to me.  But that doesn't matter in this case, which seems fundamentally about an abstract injury common to everyone. 

For some contrary views, see the links here.  At best, one can say that the Constitution's original meaning in this area is poorly understood.


The Recess Appointments Decision Part III: How Protective Are Pro Forma Sessions Against Improper Recess Appointments
Mike Rappaport

While people who favor the original meaning of the Recess Appointments Clause were disappointed by the majority decision in Noel Canning, some people argue that at least the Court’s holding as to pro forma sessions puts a significant check on executive power. According to this view, the Senate can simply hold pro forma sessions every 3 days to prevent the President from making a recess appointment. That would prevent recess appointments, because the Supreme Court held that a recess of more than 3 days and presumptively more than 10 days is required to make a recess appointment.

Moreover, these people argue that even if the party opposing the President only controls the House and not control the Senate, it can still block recess appointments. Since neither house can adjourn for more than 3 days without the consent of the other house, the House of Representatives can force the Senate to meet every 3 days (by the House refusing to adjourn for more than 3 days). The party opposing the President can therefore prevent recess appointments so long as it controls one house. Thus, even if the Supreme Court’s holding regarding pro forma sessions conflicted with the original meaning, it at least constrains the Presidents otherwise excessive recess appointment power.

While there is something to be said for this view, it is by no means clear that the pro forma sessions will work to constrain the President. There are two issues here: how many houses the party opposing the President needs to control and whether a single Senator from the President’s party can defeat the pro forma session procedure.

1. How many houses does the party opposing the President need to control? While the Republican House was able to force the Democratic Senate to hold pro forma sessions in 2012, it is not clear that will work in the future. Instead, the party opposing the President might have to control both houses to stop the recess appointments.

The Constitution provides that “Neither House, during the session of Congress, shall, without the consent of the other, adjourn for more than three days.” Thus, it would seem that each house can prevent the other from adjourning for more than 3 days and therefore from allowing the President to make a recess appointment. But there is another provision that states that “in Case of Disagreement between [the houses], with Respect to the Time of Adjournment, [the President] may adjourn them to such Time as he shall think proper.”

Under this provision if one house attempts to hold pro forma sessions every three days (as was done in the Noel Canning case) and the other wants to hold a two week recess (to allow the President to make a recess appointment), the President would have the authority to determine that the houses should take a 2 week recess and thereby allow himself to make recess appointments. That would suggest that the party opposing the President would need to control both the House and the Senate to stop recess appointments.

But perhaps the party opposing the President could take another action. It could hold a pro forma session every day. In that event, one might conclude there was no adjournment at all and therefore no “disagreement between [the houses] with respect to the Time of Adjournment.”

2. But even in this situation, a single Senator from the President’s party might be able to prevent the pro forma session from operating. If the two Senators meet for the pro forma session, a third sabotaging Senator could show up and assert there was no quorum. If he did, that would appear to require a quorum determination and a conclusion that there was no quorum. In that event, the pro forma session would presumably not count as a real session and therefore would not have ended the recess.

Perhaps there are some Senate rules that would prevent this from occurring in the way I suggest, but I would question their constitutionality. If those rules prevented the Senate from determining whether there was a quorum, even after a Senator raised the issue, it is hard to see how they would be constitutional, even under the Supreme Court’s decision.

Of course, taking this action might not be costless to the Senator who did it and to his party. If the Senator’s action showed that there was no quorum, then that might require the entire Senate or a majority of it to meet (unless there was agreement between the two houses as to the length of the recess). But this action is nonetheless a way that the President and his party can combat the use of pro forma sessions.

In conclusion, if the pro forma sessions are used to combat recess appointments, there will be ways of responding to those sessions. And that might once again leave the President with broad recess appointment authority, notwithstanding opposition in one or both of the houses to his actions.

(Cross Posted at the Liberty Law Blog)

Timothy MacDonnell: Justice Scalia's Fourth Amendment Text, Context, Clarity, and Occasional Faint-Hearted Originalism
Michael Ramsey

Timothy MacDonnell (Washington and Lee University - School of Law) has posted Justice Scalia's Fourth Amendment Text, Context, Clarity, and Occasional Faint-Hearted Originalism (Virginia Journal of Criminal Law, Forthcoming) on SSRN. Here is the abstract:

Since joining the United States Supreme Court in 1986, Justice Scalia has been one of the most prominent voices on the Fourth Amendment, having written twenty majority opinions, twelve concurrences and eight dissents on the topic. Justice Scalia’s Fourth Amendment opinions have had a significant effect on the Court’s jurisprudence relative to the Fourth Amendment. Under his pen, the Court has altered its test for determining when the Fourth Amendment should apply; provided a vision for how technology’s encroachment on privacy should be addressed; and articulated the standard for determining whether government officials are entitled to qualified immunity in civil suits involving alleged Fourth Amendment violations. In most of Justice Scalia’s opinions, he has championed the originalist/textualist theory of constitutional interpretation. Based on that theory, he has advocated that the text and context of the Fourth Amendment should govern how the Court interprets most questions of search and seizure law. His Fourth Amendment opinions have also included an emphasis on clear, bright-line rules that can be applied broadly to Fourth Amendment questions. However, there are Fourth Amendment opinions in which Justice Scalia has strayed from these commitments; particularly in the areas of the special needs doctrine and qualified immunity. The article asserts that Justice Scalia’s non-originalist approach in these spheres threatens the cohesiveness of his Fourth Amendment jurisprudence, and could, if not corrected, unbalance the Fourth Amendment in favor of law enforcement interests.

RELATED: At Talking Points Memo, Sahil Kapur: Antonin Scalia Emerges As Fighter For Fourth Amendment Privacy Rights.


The Recess Appointments Decision Part II: Pro Forma Sessions Are Not Real Sessions
Mike Rappaport

In my first post, I noted that I thought Justice Breyer’s decision was wrong on all three grounds based on the original meaning of the Constitution. This may surprise some people who believe that the third ground of the Court’s decision – that the pro forma sessions were real sessions and therefore the recesses were not long enough to justify a recess appointment – was a favorable rebuke of the Obama administration. But in my view, the majority’s third ground is probably not in accord with the original meaning.

I have come to this position over time. But the final straw was Justice Breyer’s opinion, which ironically convinced me that the pro forma sessions were not real ones (ironic since he was arguing the opposite position). It is significant that Justice Scalia and the other concurring justices did not join this part of the opinion, suggesting that they may agree with my doubts about this conclusion.

A pro forma session involves two or three Senators meeting for a minute or two. Justice Breyer argues that the Senate is entitled to deference as to its conclusion that the Senate is in session and therefore the Court and the President must treat these sessions as real ones.

But this is mistaken. The Constitution establishes that a majority of the Senators constitutes a quorum. Therefore, one or two Senators cannot operate the Senate. If the Senate was in a recess, a meeting of two Senators would not end the recess. The Senate as a whole would lack capacity to conduct business.

Justice Breyer argues that, based on a reasonable Supreme Court precedent, the Senate is entitled to adopt rules that are reasonably related to a constitutional provision. Thus, any rule that is reasonably related to determining whether there is a quorum is constitutional. And he argues that the Senate operates based on a rule that assumes there is a quorum, unless someone objects and calls for a quorum determination.

But while the Supreme Court precedent Justice Breyer relies upon makes sense, his application of it to the Senate’s “no quorum determination unless someone objects” rule is mistaken. The Supreme Court precedent, which may very well accord with the original meaning, merely means that the Senate can adopt a rule that does a reasonable job of determining whether there is a quorum. It can take attendance and lists who says “here.” Or it can have someone take attendance by observing who is in the room. It does not have to take attendance again every ten minutes, even though it is possible that some Senators left and therefore there is no longer a quorum.

But if two Senators show up, and it is clear to both of them that no one else is in the room, that is not a reasonable method for determining whether there is quorum. That is a way of evading a constitutional provision. It is unreasonable and unconstitutional.

I suppose if someone were to come up with strong historical evidence that this is how Parliament operated and people assumed this rule would operate, I would reconsider. But I doubt two or three people would be a quorum of a house of Parliament or in the colonies.

(Cross posted at the Liberty Law Blog)

Richard Epstein on McCullen v. Coakley
Michael Ramsey

At Defining Ideas, Richard Epstein: Wrong on Abortion Picketing (arguing that the Supreme Court unanimously erred in striking down the abortion clinic buffer zone in McCullen v. Coakley).  From the analysis:

Abortion foes should not be shut out from the opportunity of dissuading women from going through with abortions. But by the same token, any form of intimidation is off limits. From the nineteenth century onward, the line between force and persuasion has always been hard to police in labor picketing cases, both as a common law and constitutional matter, as the correct approach is often highly context dependent.

The issue is no simpler in abortion cases. With unruly crowds repeatedly massed at its doors, shouting at people who want to go through, the facility could obtain some form of injunction in routine fashion. The terms of that injunction would, of course, be contested, but any court would be well within its powers to adopt a fixed rule—stay 35 feet from the entrance way—to reduce the pressure of ad hoc disputes that always arise under some vaguer standard that compels demonstrators not to unduly harass or annoy potential patrons of the business acting in exercise of their constitutional right; ...

So how does the First Amendment change this analysis? In my view, not at all. Recall that the Amendment’s chief office is to prevent legislatures from eroding common law protections of freedom of speech, which did not happen in McCullen. End of case.

And this:

It is tragi-comic that all nine Supreme Court justices have signed on to a set of ad hoc rules that can only make matters worse. One constant misconception in modern constitutional law is that ceaseless balancing somehow serves the interests of justice better than clear rules.

(Via Instapundit).


The Recess Appointments Decision Part I: Nonoriginalism and Originalism
Mike Rappaport

The Supreme Court’s recess appointments decision in Noel Canning was largely a disappointment from the perspective of originalism and the original meaning of the Recess Appointments Clause.

There were three issues involved in the case: (1) the type of recess issue (whether a recess appointment could be made only during an intersession recess or also during an intrasession recess); (2) the happen issue (whether a recess appointment could be made only to a vacancy that happened during the recess, or also to a vacancy that initially arose during the session); and (3) the pro forma issue (whether 1 minute sessions attended by 2 Senators count as real sessions).

A majority decision by Justice Breyer is almost always a bad thing for originalism. And that was true in Noel Canning. The majority got the type of recess issue wrong (saying that a recess appointment could be made during not only an intersession recess but also an intrasession recess). And it got the happen issue wrong (saying that a vacancy could be filled with a recess appointment not only if it happened during the recess, but also if it initially happened during the session).

Some people are happy that the majority still struck down the recess appointments on the ground that the pro forma sessions were real sessions and therefore the Senate’s recesses were too short to allow a recess appointment to be made. But I can’t even take solace in that conclusion, because I think it is likely that the pro forma sessions were not constitutional sessions. (More on this in a future post.)

But there is a silver lining here. The originalist concurrence by Justice Scalia was exceptional (and I personally feel gratified that he relied so heavily in it on my two recess appointment papers — see here and here). Moreover, when I first published my article on the Original Meaning of the Recess Appointments Clause in 2005, virtually no one adopted the view that I defended. And even after the D.C. Circuit surprised everyone by relying on the theory in Noel Canning, an astute observer of the Supreme Court’s separation of powers jurisprudence said at a Federalist Society event that he would buy me dinner if anyone other than Justice Thomas adopted my view of the happen issue. Yet, four justices embraced this view.

Moreover, there was good reason to be skeptical that Justices Alito and Roberts would sign on. Both of them have histories in the executive branch and therefore might have been hesitant to limit the President’s recess appointment power. And both of them have emphasized questions of practice, with Justice Alito especially seeming to be skeptical of originalism. Yet, both joined the opinion, with no reservations.

Justice Breyer’s opinion was obviously not an originalist opinion. It is true that it attempts to camouflage itself in originalist garb, but it is merely a faux originalism. There are two basic problems with the opinion. First, he claims that the Recess Appointments Clause was ambiguous. But Justice Breyer relishes the ambiguity, because it gives him an opportunity to depart from the constitutional constraints. Yet, he was way too quick to decide that the language was ambiguous. It is not enough to say that there were two meanings of “recess” at the time of the Constitution. It was true there were two meanings, but it is pretty clear that the ordinary meaning of recess (which would allow a 30 minute recess) was not employed in the Constitution and that the more technical legislative meaning was used. In this area, Justice Breyer, like other faux originalists, resembles Justice Foster in Lon Fuller’s Speluncean Explorers, whose favorite part of a statute were the holes in them.

Second, Justice Breyer does not attempt to resolve the alleged ambiguity correctly. Statutory purpose was one of the traditional means of resolving ambiguities, but not the way that Justice Breyer uses it – his is a New Dealer approach that allows judges to update the Constitution. Purpose requires putting oneself in the place of the people at the time, given their values and circumstances. It does not involve simply asserting what one regards as a good constitutional result, as Justice Breyer does.

In my next several posts, I will address various aspects of the Recess Appointments decision.

Eugene Volokh on Harris v. Quinn (Updated)
Michael Ramsey

Eugene Volokh argues against Monday's decision in Harris v. Quinn and "The bedrock principle that, except perhaps in the rarest of circumstances, no person … may be compelled to subsidize speech by a third party that he or she does not wish to support":

But what I don’t see is why there should be any First Amendment problem here at all. Yes, if I’m compelled to pay union dues, I’m being “compelled to subsidize speech by a third party that [I do] not wish to support” (whether that subsidized speech is just related to collective bargaining, or to politics more broadly). But I’m compelled to pay taxes, and that compels me to subsidize speech by the government — and by various recipients of government funds — that I do not wish to support. It doesn’t matter how much I disapprove of the views (both governmental and nongovernmental) taught in public schools or public universities. It doesn’t matter how much I disapprove of the views that the government expresses on enlistment in the military, on the environment, on race relations, or on the vast range of other subjects on which the government speaks.

I agree, and would add that this whole line of cases, from Harris back through Keller v. State Bar (1990) to Abood v. Detroit Bd. of Ed. (1977), is dismally lacking in originalist foundations.  Maybe it's a First Amendment problem to require a private person to directly fund another private person's speech (even though, as Professor Volokh says, it's not a constitutional problem to require a private person to fund the government's speech, or to require a person to pay taxes that the government then uses to fund another private person's speech).  But surely that proposition does not follow as a logical necessity from the text or leading concerns of the First Amendment.

That being so, it would be great for originalist justices to offer some founding-era support for the idea.  I'm not aware that any material support has been offered, however.  (It's definitely not offered in Harris, which assumes a background rule of no compelled funding and then asks whether the Abood line of cases require an exception for the union speech at issue in Harris).  True, one could argue that this is another area (like the Fourth Amendment warrent requirement in Riley v. California) where originalists are just following existing precedent while recognizing that the precedent is detached from the text and founding history.  If that's so, however, they should not be extending the precedent; rather (as I argue here) they should be reading it narrowly.  And, although it isn't my area at all, Harris looks like an extension of the Abood line of cases.

UPDATE: Will Baude appears to agree at the end of this post (and also see here).


The Treaty Power and the Necessary and Proper Clause
Mike Rappaport

In my previous post, I argued that the Treaty Power should be interpreted as allowing the President and the Senate to make treaties that involve intercourse with foreign nations, but not simply domestic matters. In this post, I discuss the second constitutional issue raised by the decisions in Bond v. US – whether Congress has the authority under the Necessary and Proper Clause to pass legislation (outside of its other enumerated powers) that carries into execution a treaty. (As with my prior post, I note that I have not fully researched this issues and therefore my views should be regarded as preliminary.)

In analyzing this question, I will assume that the Treaty Power only allows treaties that involve intercourse with foreign nations. If that is true, there are at least two significant positions as to Congress’s authority to carry those treaties into execution:

1. Congress can only pass legislation under the Necessary and Proper Clause that carries into execution Congress’s other enumerated powers, but not the President and Senate’s Treaty Power.

2. Congress can pass legislation under the Necessary and Proper Clause that carries into execution the President and Senate’s Treaty Power.

The first position was articulated by Justice Scalia’s concurrence in Bond, and was joined by Justice Thomas. It was first developed by Nick Rosenkranz. Under this interpretation, while the President and Senate could enter a treaty that involved intercourse with foreign nations that extended beyond Congress’s enumerated powers, Congress could not pass legislation that carried that treaty into execution.

As an initial matter, this position seems strange. After all, a basic purpose of the Constitution was to allow for enforcement of US treaties throughout the country. If Congress could not carry into execution the treaty, then the main enforcement method would be to place the obligations into the treaty itself (which, if it is self executing, is the law of the land), but many provisions for enforcement, such as criminal penalties,are not typically placed into treaties.

One reason why one might read Congress’s authority narrowly is if one was concerned about the federalism implications of such authority. But if the Treaty Power is already confined to matters involving intercourse with foreign nations, one need not worry about Congress exercising unlimited authority. Instead, Congress would be restricted to enforcing treaties involving intercourse with foreign nations. And a check on expansive treaties would be that they required two thirds of the Senate to ratify – a Senate that was initially elected by the State legislatures and therefore was particularly representative of state interests.

The main argument for concluding that Congress does not have the power to enforce treaties is textual. From Justice Scalia’s concurrence:

Start with the phrase “to make Treaties.” A treaty is a contract with a foreign nation made, the Constitution states, by the President with the concurrence of “two thirds of the Senators present.” That is true of self-executing and non-self-executing treaties alike; the Constitution does not distinguish between the two. So, because the President and the Senate can enter into a non-self-executing compact with a foreign nation but can never by themselves (without the House) give that compact domestic effect through legislation, the power of the President and the Senate “to make” a Treaty cannot possibly mean to “enter into a compact with a foreign nation and then give that compact domesticlegal effect.” . . . Upon the President’s agreement and the Senate’s ratification, a treaty—no matter what kind—has been made and is not susceptible of any more making.

How might Congress have helped “carr[y]” the power to make the treaty—here, the Chemical Weapons Conven­tion—“into Execution”? In any number of ways. It could have appropriated money for hiring treaty negotiators, empowered the Department of State to appoint those negotiators, formed a commission to study the benefits and risks of entering into the agreement, or paid for abevy of spies to monitor the treaty-related deliberations of other potential signatories.

Once a treaty has been made, Congress’s power to do what is “necessary and proper” to assist the making of treaties drops out of the picture.

My sense of this textual interpretation is that it shows at best that the language is ambiguous. It is possible that Congress’s power to carry into execution the President’s (and Senate’s) Treaty Power was limited to negotiating the treaty and other related matters. But it is also possible it meant to enforce the actual treaty. It seems permissible to speak of carrying the power to make a treaty into execution by enforcing that treaty. This interpretation gains force from the fact that in England, the King made a treaty and the Parliament passed legislation enforcing it. This was certainly one model that the Framers might have been following.

Given the strong argument for allowing Congress to enforce treaties and the lack of a strong federalism argument against allowing it to do so, I would tentatively interpret this ambiguity in favor of the second interpretation.

John McGinnis on Noel Canning
Michael Ramsey

At Liberty Law Blog, John McGinnis: Noel Canning, Liberty, and the Coase Theorem.  From the introduction:

Conservatives have been celebrating Noel Canning, the recent Supreme Court decision on recess appointments, because President Obama lost 9-0. But in reality the case was a loss both for liberty and the rule of law. While the result was unanimous, the reasoning in Justice Stephen Breyer’s five-person majority dramatically diverged from Justice Antonin Scalia’s four-person concurrence.  And it is the reasoning, not the result, that may shape our constitutional future.  Justice Breyer’s majority opinion elevates practices of the President and Congress over the original meaning of the Constitution.  Adoption of Breyer’s principle of constitutional interpretation threatens our liberty.


Ronald Turner: Justice Clarence Thomas's Conspicuously Nonoriginalist Affirmative Action Jurisprudence
Michael Ramsey

Ronald Turner (University of Houston Law Center) has posted Disparate Treatment: Justice Clarence Thomas's Conspicuously Nonoriginalist Affirmative Action Jurisprudence (19 Texas Journal on Civil Liberties and Civil Rights 251 (2014)) on SSRN. Here is the abstract: 

In the eagerly anticipated but anticlimactic decision in Fisher v. University of Texas at Austin the United States Supreme Court, by a 7-1 vote, held that the United States Court of Appeals for the Fifth Circuit did not correctly apply the strict scrutiny standard of judicial review in assessing the constitutionality of the university’s race-conscious undergraduate admissions process. Joining the Court’s opinion, a concurring Justice Clarence Thomas, an avowed originalist, agreed that the Fifth Circuit did not properly apply strict scrutiny and, going further than the majority, argued that the Court’s 2003 Grutter v. Bollinger decision should be overruled. Conspicuously absent from Justice Thomas’s concurrence is any reference to or application an originalist interpretive methodology. While Justice Thomas has issued originalist opinions in constitutional cases involving, for example, the Commerce Clause, the First Amendment, the Takings Clause, and the Ex Post Facto Clause, he does not employ an originalist analysis when seeking an answer to the question whether certain race-conscious governmental actions violate the Constitution. This essay discusses Justice Thomas’s conspicuously nonoriginalist affirmative action jurisprudence, and provides commentary on the ways in which the nonoriginalist views of Justice Thomas in this area of constitutional law are, in all material respects, the same as Clarence Thomas’s nonjudicial and personal views and positions.