Mitchell Berman: Judge Posner's Simple Law
Michael Ramsey

Mitchell Berman (University of Pennsylvania Law School) has posted Judge Posner's Simple Law (Michigan Law Review, 2015, Forthcoming; U of Penn Law School, Public Law Research Paper No. 14-36) on SSRN. Here is the abstract: 

The world is complex, Richard Posner observes in his most recent book, Reflections on Judging. It follows that, to resolve real-world disputes sensibly, judges must be astute students of the world’s complexity. The problem, he says, is that, thanks to disposition, training, and professional incentives, they aren’t. Worse than that, the legal system generates its own complexity precisely to enable judges “to avoid rather than meet and overcome the challenge of complexity” that the world delivers. Reflections concerns how judges needlessly complexify inherently simple law, and how this complexification can be corrected.

Posner’s diagnoses and prescriptions range widely — from the Bluebook to the law school curriculum. But the principal culprit, in Reflections as in many of Posner’s previous writings, is legal formalism and, in particular, the textualist and originalist approaches to legal interpretation associated with Justice Antonin Scalia. Indeed, the book’s centerpiece is a substantially expanded version of a scathing, previously published review of Scalia’s book, co-authored with Bryan Garner, Reading Law: The Interpretation of Legal Texts. Accordingly, this article, a review of Reflections produced for the Michigan Law Review’s annual book review issue, focuses on the debate between Posner and Scalia.

After offering a scorecard of blows landed and missed, I argue that the debate reveals two ironies. First, Posner’s criticisms often misfire precisely because he fails to appreciate the irreducible complexity of law. Despite common rhetoric, the central thesis of contemporary originalism is not about the activity denominated “interpretation.” Rather, it is fundamentally a claim about the content of law. Contemporary originalists by and large believe that what the law is — what our legal powers, duties, and rights are — is fully determined by semantic qualities of promulgated texts. What those texts say is, for that reason, what the law is. This is not true of all originalists, but it is true of the dominant (Scalian) branch. It is a picture of law of breathtaking simplicity. In short, the canard that law is simple is vastly more congenial to originalism than to whatever nonoriginalist picture of law Posner might have inchoately in mind. 

Second, if this orthodox originalist conception of law is mistaken, we are far from agreed on an alternative account. If we are ever to understand the underpinnings of legal precepts — how the normative entities that are legal powers, duties, rights, and permissions, correspond to or are produced by such facts as the enactment of legal texts, the issuance of judicial opinions, and the dispositions and behaviors of legal actors — that understanding will come, almost certainly, from advances in legal theory. Yet Posner is disdainful of legal and constitutional theory — of the field, and not only of its current practitioners. That is unfortunate. What are the determinants of legal content is a theoretical question of great difficulty. Posner should not be so dismissive of the field that tries to resolve it.

More from Eugene Kontorovich on Zivotofsky
Michael Ramsey

Eugene Kontorovich has further thoughts on Zivotofsky v. Kerry (responding to the posts noted here):

Zivotofsky  is not about recognition (I)

Zivotofsky  is not about recognition (II)

I agree that Zivotofsky is not about recognition (and therefore that the challenged statute does not infringe the President's exclusive recognition power, even if he has one).  But there's this: 

A major feature of the statute makes it exceedingly difficult to characterize it as official speech about the status of Jerusalem. The law allows citizens born in Jerusalem to choose whether to put “Jerusalem” or “Israel” on their passports. Thus it is if anything the bearer’s speech, and Congress is simply allowing the passport to be a “public forum” for citizens, like affinity license plates [on a] car.

Again, I agree ... but how does this fit into any power of Congress?  Putting it this way seems to me to show that it's not a commerce power being exercised here, or any other power that might in some circumstances allow some regulation of passports.  Congress isn't empowered to offer private citizens a forum to speak on official documents such as a passport, and permitting such speech does not serve any of the powers Congress actually has.

UPDATE:  Argument transcript here (via How Appealing); argument analysis from Lyle Denniston at SCOTUSblog here.


Andrew Friedman: Can Constitutional Drafters See the Future?
Michael Ramsey

Andrew Friedman (Independent) has posted Can Constitutional Drafters See the Future? No, and It's Time to Acknowledge That on SSRN. Here is the abstract: 

Perhaps the greatest trouble with constitutional drafting is its tendency to look backward, at the country’s own political and legal history along with international comparative sources. This makes it difficult for provisions to have a textual basis for modern technologies. While such technologies must be dealt with, they are often brought in by judges who can be unprepared for such technological analysis. This paper provides a history of “influential” constitutions and the circumstances that brought about privacy and search and seizure provisions, along with drafting recommendations that will alleviate this problem for future drafters.


Abbe Gluck: What 30 Years of Chevron Teach Us About the Rest of Statutory Interpretation
Michael Ramsey

Abbe Gluck (Yale Law School) has posted What 30 Years of Chevron Teach Us About the Rest of Statutory Interpretation (Fordham Law Review, Vol. 83, 2014) on SSRN. Here is the abstract: 

Chevron, the most famous rule of administrative law, is also a central doctrine of statutory interpretation. But Chevron is understood and operates quite differently from most of the other statutory interpretation rules. This Essay explores six such divergences and how they illuminate of some the most important, unanswered questions of the statutory era.

First, thirty years of Chevron highlight the enduring puzzle over the legal status of statutory interpretation methodology in general. Chevron is a "precedent;" the remaining statutory interpretation doctrines do not even rise to the status of 'law." But second, Chevron’s own fate is inextricably tied to these other rules, because Chevron relies on them in its famous two-step test. Critics blame Chevron’s manipulability, but arguably the blame lies more with the legal indeterminacy of all of the other statutory interpretation rules upon which Chevron relies. Third, as the Chevron doctrine has evolved, it has become more attendant to the realities of how Congress drafts statutes — realities in which the Court seems wholly uninterested when it comes to the rest of statutory interpretation. Relatedly, the Court shows no shame in acknowledging Chevron’s source; the Court created the doctrine. The jurisprudential status of the other interpretive rules, however, remains ambiguous, with the federal courts loathe to admit that they have fashioned a common law of statutory interpretation. Fourth, Chevron, as further developed by Mead, is the one instance in which the Court has explicitly used interpretive doctrine to influence the procedures that Congress uses. Again in contrast, across the rest of the statutory landscape, the Court has refused to enter the sausage factory, continuing to reject the idea that courts should interfere in the lawmaking process, or that how a law is made should affect its interpretation. Fifth, Chevron’s evolution has blown a hole through conventional notions of statutory stare decisis, but at the same time the Court now seems afraid that it has given away too much. Today, agency statutory interpretations may displace judicial precedents but, when agencies are not in the picture, the Court hoards power: it gives its own statutory precedents "super" stare decisis effect; is stingy when it comes to interpreting congressional overrides; and won’t cede any control over interpretive rules to any other branch. Finally — and this is a shared feature — both Chevron and the rest of the statutory interpretation rules rest on an outmoded, "Schoolhouse Rock!" understanding of Congress and agencies that is no more, if it ever was. Thirty years of Chevron thus reveal a statutory law–landscape in remarkable flux, and a Court making few connections between the closely linked administrative and statutory domains.


Zivotofsky on Monday
Michael Ramsey

Zivotofsky v. Kerry, which may be the most important originalist case at the Supreme Court this term, will be argued Monday 11/3.  (But, that's not saying much, as the term generally lacks cases of originalist interest).  This is the Jerusalem passport case; here is the question presented:

Whether a federal statute that directs the Secretary of State, on request, to record the birthplace of an American citizen born in Jerusalem as born in "Israel" on a Consular Report of Birth Abroad and on a United States passport is unconstitutional on the ground that the statute "impermissibly infringes on the President's exercise of the recognition power reposing exclusively in him."

At Lawfare, Jack Goldsmith argues that this isn't the right question (or at least that this question can be avoided) -- there's no need to get into questions of exclusive power because Congress lacks an enumerated power to pass the statute in the first place:

The issue is the constitutionality of a federal law that requires the Secretary of State to record “Israel” as the place of birth for a citizen born in Jerusalem who requests the designation.  The court below, and the Solicitor General, maintain that this statute intrudes into an exclusive domain of Executive power, and is thus unconstitutional.  But there is a prior constitutional question of great significance that the Solicitor General hints at dimly near the end of his brief (pp. 46-48): Where does Congress get the power under Article I to require the designation “Israel” on a passport?  The Petitioner says in passing that the legislation “falls squarely within Congress’ power to regulate the issuance of passports.”  To which one might ask: What power to regulate the issuance of passports?

I agree.  Here's my reaction to the lower court decision when it came out in 2013.  In relevant part:

... I think the decisive issue is Congress' power.  The [D.C. Circuit] assumes Congress has power over passports without much textual analysis.  ("Neither party has made clear the textual source of the passport power in the Constitution, suggesting that it may come from the Congress’s power regarding immigration and foreign commerce.").  It may be that Congress has some power over passports from these sources, but the Act in question has nothing to do with either of them.  Instead, it is an attempt to direct U.S. policy regarding the sovereign status of Jerusalem.  Or, put even more sharply, it is an attempt to force the President to make a diplomatic statement endorsing Israel's sovereignty over Jerusalem.

That is the exercise of a diplomatic power, not the exercise of a power over immigration or commerce.  And no other enumerated power even arguably allows Congress to exercise diplomatic power in this context.  In sum, I think the court made the case harder than it needed to be by assuming Congress had an Article I power to pass the law in the first place.

Marty Lederman at Just Security seems to agree as well (his long post is more subtle and complex than this excerpt, but I like this excerpt): 

Congress enacted Section 214(d) not to advance any of the legitimate Article I objectives that are the basis for its other passport regulations, but instead to force the Executive branch itself to say something to foreign officials inconsistent with what the Executive branch would (and does) otherwise say–and indeed, inconsistent with the official view of the U.S. government of an important and sensitive issue of sovereignty.  (The passport is, and is understood to be, a form of official government speech.  As the Court explained in Haig, it is, at a minimum, “a letter of introduction in which the issuing sovereign vouches for the bearer and requests other sovereigns to aid the bearer.”  Thus, every U.S. passport, including Zivotofsky’s, states at the very outset:  “The Secretary of State of the United States of America hereby requests all whom it may concern to permit the citizen/national of the United States named herein to pass without delay or hindrance and in case of need to give all lawful aid and protection.”).

If the Court rules for Zivotofsky, foreign audiences will reasonably understand the word “Israel” on the passports of thousands of U.S. citizens born in Jerusalem to be a statement on behalf of the United States that Jerusalem has (and/or ought to have) sovereignty over that city.  And that would, of course, be precisely the effect Congress expressly designed the statute to accomplish:  Section 214 is, after all, entitled “UNITED STATES POLICY WITH RESPECT TO JERUSALEM AS THE CAPITAL OF ISRAEL.”

Again, the key is not that the President has an exclusive power over U.S. statements regarding the status of Jerusalem, but that in this context Congress has no power.  If the context were different -- if, for example, the regulation at issue was a trade regulation designating products made in Jerusalem as products "of Israel," then Congress would plainly have an enumerated power (commerce) and the President would have no constitutional objection.  (Here, though, is a strong counter-argument by Eugene Kontorovich that Congress does have an enumerated power in Zivotofsky).

Two further points: 

(1)  While Professors Goldsmith and Lederman don't reach the issue, I think it is very clear that the President does not have an exclusive power here.  This is a powerful amicus brief by the great foreign relations law historian Louis Fisher rejecting the ideas of exclusivity expressed in United States v. Curtiss-Wright, on which the lower court partly relied.  Another good history-oriented amicus brief is this one by Ted Olson on behalf of the House of Representatives, also attacking the exclusive presidential power view (and citing The Constitution's Text in Foreign Affairs).  

I agree with all they say (even though I come out on the other side in the end).  Nothing in the Constitution gives the President an exclusive power over diplomacy, in the sense of overriding otherwise-legitimate acts of Congress that are inconsistent with what the President is saying diplomatically.  Rather, what the Constitution provides (as Alexander Hamilton said in Pacificus No. 1) is concurrent power.  The President can act within his sphere (diplomacy) and Congress can act within its sphere (e.g., foreign commerce).  If a commercial regulation (e.g., the rule that products of Jerusalem are treated as products of Israel for tariff purposes) conflicts with what the President says about the status of Jerusalem ... well, so be it.  That's separation of powers.  Curtiss-Wright's idea that the United States must speak with one voice in foreign affairs is pure judicial invention.  Separation of powers means that the United States does not speak with one voice, because there are multiple power centers.

(2)  I can't help noting that the President's case rests heavily on the executive power over foreign affairs (that is, the grant of substantive foreign affairs powers to the President in Article II, Section 1).  Without that power, it is very hard to see the source of any presidential power here.  The Solicitor General also invokes the President's power to receive ambassadors, but that seems very remote from what is at stake in Zivotofsy.  Congress' statute says nothing even remotely bordering on the question of what ambassador to receive or (derivatively) what government of a country to accept as legitimate.  Rather, it seems clear that what's at stake is the President's general diplomatic power -- what messages to send foreign governments (in this case, about the status of Jerusalem).  Everyone seems to agree that the President has this power.  But it must come from the Article II, Section 1 vesting clause; there simply is no other plausible textual basis.


The Textual Case against the Dormant Commerce Clause
Michael Ramsey

Since we've been attacking the dormant commerce clause (see here and here), I thought it would be good to quickly summarize the textual case against it.  To be clear, there are enough historical arguments in its favor that I remain officially agnostic.  But the textual case against it is powerful. Consider:

1.  The commerce clause is a grant of power to Congress.  On its face, it does not say anything to indicate it is an exclusive grant of power, or that it has any effect on the states.

2.  The commerce clause appears in a section of the Constitution (Article I, Section 8) whose purpose is to grant powers to Congress.  A number of the powers granted to Congress in this section, in terms indistinguishable from the commerce clause, are understood not to be exclusive powers. For example, the power to lay and collect taxes; the power to establish rules of naturalization and bankruptcies; the power over patents and copyrights; the power to punish piracies and felonies on the high seas (which states can do, at minimum, if the offender is a citizen of the state); the power to punish offenses against the law of nations (again, at least if the offender is a citizen of the state or the offense takes place in the state).

3. Also in Article I, Section 8, Congress is expressly declared to have "exclusive" power in one instance (the power "To exercise exclusive Legislation" over the capital district).  Thus the absence of the word "exclusive" in the commerce clause is especially significant.

4.  A different section -- Article I, Section 10 -- lists the things states cannot do.  (E.g., states cannot enter into treaties, grant letters of marque and reprisal, coin money, etc.).  The same section contains another list of things states cannot do without the consent of Congress (e.g., engage in war, keep troops or ships of war).  Article I, Section 10 does not include regulating interstate commerce as one of the things states cannot do.  Expresio unius, etc.

5.  Article I, Section 10 contains a narrower restriction on state interference with interstate commerce: states cannot impose duties on imports or exports.  Presumably these duties would be invalid under the dormant commerce clause (and thus this provision would be superfluous) if there actually was a dormant commerce clause in the text.

6.  Many of the things prohibited to states in Article I, Section 10 are also granted to Congress in Article I, Section 8 (e.g., granting letters of marque and reprisal, coining money, keeping troops and ships of war, engaging in war).  If a grant of power in Article I, Section 8 implies an exclusive grant (as the dormant commerce clause holds), then all these provisions of Article I, Section 10 are superfluous.  To take a devastating example, Article I, Section 10 indicates that giving Congress the power to grant letters of marque and reprisal in Article I, Section 8 did not, in itself, deny states the power to grant them.  Rather, in order to make letters of marque and reprisal an exclusive power of Congress, the Constitution also needed to say in Article I, Section 10 that states could not grant them (as it did).

7.  In any event, even if one thought the grant to Congress of power to regulate commerce among the states could be read as a grant of exclusive power to regulate commerce among the states, that still would not provide a textual foundation for the modern dormant commerce clause.  No one today thinks that states cannot regulate any commerce among the states.  Rather, the dormant commerce clause doctrine is that (a) states cannot discriminate in their regulations of interstate commerce; and (b) states cannot impose an undue burden on interstate commerce, as balanced against the legitimate regulatory goals of the state.  This rule simply cannot be reached by a claim that Congress has exclusive power to regulate interstate commerce.

While this textual evidence may not be conclusive (depending on what other evidence exists), at minimum proponents of the dormant commerce clause doctrine start with much to overcome.

(As an aside, I agree with Mike Rappaport that the privileges and immunities clause of Article IV may prohibit at least some of the discriminatory behavior presently prohibited under the dormant commerce clause doctrine.  The most problematic part of the dormant commerce clause doctrine is the claim that states cannot unduly burden interstate commerce even with regulations that do not discriminate.)


Michael Morley: The Intratextual Independent 'Legislature' and the Elections Clause
Michael Ramsey

Michael Morley (Barry University School of Law) has posted The Intratextual Independent 'Legislature' and the Elections Clause on SSRN. Here is the abstract: 

Article I’s Elections Clause and Article II’s Presidential Electors Clause confer authority to regulate congressional and presidential elections, respectively, specifically to State "legislatures," rather than to States as a whole. In the pending case Arizona State Legislature v. Arizona Independent Redistricting Commission, the U.S. Supreme Court will decide whether the Elections Clause allows a State to remove the authority to draw congressional districts from its legislature, and confer it instead in an independent commission. Its ruling will have tremendous ramifications not only for similar redistricting commissions across the nation, but for a wide range of other doctrines, principles, and protections that stem from the Elections Clause and Presidential Electors Clause.

Intratextualism is a powerful technique for interpreting the Constitution that can yield valuable insights into the proper meaning of the term "Legislature," as it appears in both provisions. A careful intratextual analysis of the Constitution as a whole reveals that the term "Legislature" is best understood as referring to the entity within each state comprised of representatives that has the general authority to pass laws, and excludes executive officials, judges, and independent agencies or commissions. Such an interpretation is bolstered by both the original understanding of the term "Legislature," as well as the "independent state legislature" doctrine, which recognized that the U.S. Constitution directly confers authority to regulate federal elections directly and specifically on institutional legislatures, and a State constitution may not impose substantive limits on the scope of that authority. Thus, to the extent laws establishing independent commissions purport to prohibit State legislatures from regulating federal elections or drawing congressional districts, they are unconstitutional under the Elections Clause.

Yes, this is my intuition as well.


The Dormant Commerce Clause
Mike Rappaport

Mike Greve and Mike Ramsey both have interesting posts on McCulloch v. Maryland and the Dormant Commerce Clause.  Here are my views:

1. In McCulloch, the Supreme Court held that federal institutions such as the Bank of the United States were immune from discriminatory state taxes. I have long been skeptical of this opinion. The federal government has the power to immunize federal institutions and so an argument for a constitutional immunity is extremely weak.  That said, there is a reasonably strong argument that the federal statute establishing the bank preempted the state tax.

2. I do not believe that the Constitution’s original meaning supports the Dormant Commerce Clause. It is possible that some of the work may be done by the Privileges and Immunities Clause of Article IV, but only some of it. While there are articles attempting to ground a Dormant Commerce Clause in the original meaning, I have not found them persuasive.

3.  I believe the Dormant Commerce Clause doctrine is beneficial and therefore I would be disappointed from a policy perspective if it were overturned. By contrast, I do not think desirable policy would be harmed if the immunity portion of McCulloch were overturned, because Congress would step in.

4. While Congress would surely, in the absence of the McCulloch immunity, preempt state laws that interfered with federal institutions, it is less clear that it would act to prohibit states from taking actions that interfered with interstate commerce. But I believe it is much more likely than Mike Greve does. It may be, as Mike says, that “No tax coordination rule has ever come from Congress (let alone the states themselves).”  But that does not mean, as Mike says, that “The argument against the dormant Commerce Clause is an argument for unchecked state aggression.”

We may not have seen Congress’s actions in this area because the Court has already acted.  We simply do not know.  After all, Congress does not take actions to overturn the Dormant Commerce Clause (except in very limited areas, such as insurance).  And it would only take one statute for Congress to duplicate the Dormant Commerce Clause in the form of a statute..

While individual states may benefit from discriminatory state action, states as a whole will be harmed – and that is the question that Congress addresses when it considers a Dormant Commerce Clause statute.  Moreover, it is not state officials who make the decision, but national officials in Congress.  I think there is a substantial chance that Congress would pass such a statute if the Dormant Commerce Clause were eliminated.

(Cross posted at the Liberty Law Blog)

Chief Judge Robert Katzmann on Statutory Interpretation
Michael Ramsey

At SCOTUSblog, Ronald Collins interviews Chief Judge Robert Katzmann on his new book Judging Statutes (Oxford Univ. Press 2014) [discussed here].


Will Baude on Free Speech,, Voting Rights and Abortion Rights
Michael Ramsey

At Volokh Conspiracy, Will Baude:  Free speech vs. voting rights and abortion rights (commenting on this article by Dahlia Lithwick).

Lithwick’s basic point is that the right to vote and to obtain an abortion ought to get, but do not get, the same strong protection from the Court as free speech does. ...

But I can’t help but noticing one interesting and important difference between the right to free speech, and the rights to vote or to obtain an abortion. The right to free speech is enumerated in the text of the Constitution. The rights to vote and to obtain an abortion are not — at least not as explicitly.