Josh Blackman on Executive Non-Enforcement and the Text of the Take Care Clause
Michael Ramsey

At Josh Blackman's Blog, The Text of the “Take Care” Clause.  Key conclusion:

With this selection of “faithful” [in the take care clause], the framers adopted a standard well known in the common law of contracts—one of good faith. The Constitution did not include language such as “shall think proper,” which would suggest a subjective good faith standard, based on how the President envisages his own independent duty to execute the law. Rather, the duty was pegged to the “Laws” of Congress, preferring an objective good faith standard based on what Congress would want the President to do in such a situation.

In this sense, akin to the law of agency, the President serves as a “faithful” agent to Congress, and to the people, the ultimate sovereigns, and residual of all legitimate governance. The people elect Congress to write the laws, and choose the President to enforce the laws on their behalf. Viewed this way, the Take Care clause is indeed the fulcrum that holds together our entire system of governance. The President always has an independent constitutional duty to not obey unconstitutional laws. But he must remain a faithful steward of the laws of Congress, and cannot shirk that duty when he disagrees with them.


Due to the unavoidable dilemma of inadequate resources, even in good faith, the President will not be able to enforce all of the laws. Within that framework, the President can decide to allocate priorities. However, deliberately declining to enforce the laws, as a means to bypass laws the Executive dislikes, and Congress will not change, is not in good faith. To ascertain the state-of-mind of the President, the “sole organ” of the Executive branch, a careful study should be made of all official, and unofficial administration statements, particularly if they are against interest. If a pattern of behavior reveals a deliberate effort to act not in good faith, but in an effort to sabotage or undermine the Laws of Congress, the duty under Article II has been violated. Here, the President has dislodged Article II’s fulcrum, knocking out of orbit this fixed star in our constitutional constellation.


Originalism Top Ten of 2014
Michael Ramsey

Continuing a New Year's tradition...

1.  The Supreme Court decides NLRB v. Noel Canning (the recess appointments case), with a fairly non-originalist majority and a strongly originalist 4-Justice concurrence.  A win for originalism? It depends on whom you ask.  Good news: the majority cites the amicus brief of originalist scholars; bad news: it cites the brief as an example of an argument it is rejecting; consolation: Mike Rappaport's 2005 article The Original Meaning of the Recess Appointments Clause is cited multiple times by the concurrence.

2.  The "positive turn" in originalism scholarship takes shape in important papers and commentary by Stephen Sachs (here and here) and Will Baude.  The idea (to oversimplify just a little): originalism is the law.  Mike Rappaport is not persuaded.

3.  The Supreme Court decides Bond v. United States (the chemical weapons case), with the majority avoiding the interesting constitutional questions but with much originalism in concurrences by Justices Scalia and Thomas (most of which I disagree with see here [on Thomas] and here [on Scalia]).

4.  Kurt Lash publishes The Fourteenth Amendment and the Privileges and Immunities of American Citizenship (Cambridge Univ. Press), and blogs about it at Volokh Conspiracy.   Chris Green has a lot to say on this blog in response.

5.  President Obama's decision not to enforce various laws puts the President's non-enforcement discretion at the top of the discussion list, with substantial originalist overtones.  (A sample here, and more here).  (Maybe originalism really is the law).  Zachary Price (rightly) gets some time in the spotlight.

6.  Philip Hamburger publishes Is Administrative Law Unlawful? (Univ. of Chicago Press) and becomes an unlikely media star.  (Adrian Vermeule answers "No.")

7.  Harvard Law School launches a speaker series named after Justice Scalia; Judge Easterbrook is the first speaker.  

8.  Zivotofsky v. Kerry (the Jerusalem passport case, granted review by the Supreme Court in April and argued in November) prompts originalist-oriented commentary from various perspectives, including from  Ryan ScovillemeJack Goldsmith, and (at the National Constitution Center) Eugene Kontorovich and me.

9.  The President orders air strikes against the Islamic State in Iraq and Syria, prompting further discussion of presidential war powers in a very complex context (and here, and even more here, and here -- proving that I am not sure what to think).

10.  Scholars gather in San Diego for USD's  Fifth Annual Hugh and Hazel Darling Foundation conference on originalism works-in-progress; many of the same people reconvene a week later for the Stanford Constitutional Law Center's conference on "The Role of History in Constitutional Law."

Honorable mention:  Leading Canadian originalists Grant Huscroft and Bradley Miller get judicial posts; Will Baude and Eric Posner teach a course on originalism at the University of Chicago Law School and post online back-and-forth commentary; a play called "The Originalist" (about Scalia) is performed; Bruce Allen Murphy's unfavorable biography of Scalia is poorly received (see also here, and also here, and here, and also here -- does this seem like piling on?); the Supreme Court agrees to hear the Arizona redistricting case (asking the meaning of "legislature"); and John Manning publishes The Means of Constitutional Power in the Harvard Law Review, with commentary from Will Baude.


Shapiro/Blackman Amicus Brief in King v. Burwell
Michael Ramsey

At Cato at Liberty, Ilya Shapiro: Obamacare and the Rule of Law (discussing this brief filed on behalf of the Cato Institute and Professor Josh Blackman in King v. Burwell, the health care subsidies case).  From the conclusion: 

In King, which will be argued on March 4, the Supreme Court should address the president’s disregard of Congress and belief that legislative gridlock allows him to transcend his constitutional authority. A ruling that upholds his behavior sets a dangerous precedent for the nascent ACA superstatute, which will be implemented for years to come by administrations with different views of the law. More troubling, such a precedent could be used in future to license virtually any executive action that modifies, amends, or suspends any duly enacted law.

And here is the brief's Summary of Argument:

This case is about much more than statutory interpretation and Chevron deference. It is about the separation of powers and the rule of law. The Patient Protection and Affordable Care Act (ACA) is the most wide-ranging law of our young century. Through the ACA, Congress sought to transform the way Americans access health insurance. In many places, Congress gave the executive branch broad latitude to decide how best to implement the law. For the law’s most important parts, however—the “three-legged stool” of coverage rules, mandates, and subsidies— Congress spoke precisely, providing specific dates, formulas, and directions for implementation.

First, an individual mandate was imposed to penalize certain people who do not maintain  “minimum essential coverage” after January 1, 2014. Second, an employer mandate was designed to penalize certain employers who do not offer such comprehensive insurance to their employees after that date. Both mandates were structured to offset the cost of the “minimum essential coverage” for virtually all Americans. Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S.Ct. 2566, 2585 (2012) (“NFIB”) (“This allows insurers to subsidize the costs of covering the unhealthy individuals the reforms require them to accept.”). Finally, and most relevant here, an elaborate schedule of subsidies was appropriated for states choosing to create exchanges—Congress could not command states to establish them—to assist those who lack employer-sponsored insurance. Again, the subsidies were designed to offset the cost of providing minimum essential coverage” for millions.

In what has become a troubling pattern of abuse, the executive branch has modified, delayed, and suspended these three pillars of the ACA. None of these provisions have gone into effect as Congress designed because they conflicted with the president’s policy preferences. Through a series of memoranda, regulations, and even blog posts, executive officials have disregarded statutory text, ignored legislative history, and remade the law on their own terms.

Executive lawmaking—which has alas become commonplace—poses a severe threat to the separation-of-powers principles that undergird the Constitution and ultimately the rule of law itself. Accordingly, this Court should vacate the IRS rule that provides subsidies in states that did not establish exchanges. This rule violates Congress’s limitation of such subsidies to insurance bought through exchanges “established by the State.” 

Josh Blackman has further comments here.


Federalist Society Faculty Conference Today; Focus on Executive Enforcement Discretion
Michael Ramsey

The Federalist Society's 17th Annual Faculty Conference, held in conjunction with the American Association of Law School's annual conference, is today and tomorrow.  Notable events include the opening panel on executive enforcment discretion and a series of works-in-progress presentations.  Here is the full program.  The panel on executive enforcment discretion features: 

  • Prof. John Harrison, University of Virginia School of Law
  • Prof. Gillian Metzger, Columbia Law School
  • Prof. Zachary Price, University of California Hastings College of Law
  • Prof. Nicholas Quinn Rosenkranz, Georgetown University Law Center
  • Moderator: Prof. Tara Grove, William & Mary Law School

RELATED:  At Constitution Daily, Lyle Denniston: Is Obama’s new immigration policy constitutional, or not?

NOT REALLY RELATED:  Speaking of Constitution Daily, immodesty compels me to note that they list my discussion with Eugene Kontorovich on Zivotofsky v. Kerry (the Jerusalem passport case) as their second-most-downloaded podcast of 2014.  (The most downloaded was Ask Jeffrey Rosen, a three part series in which Constitution Center founder Jeffrey Rosen answers listener questions about the Constitution).


Robert Tsai: Legal Language in Nineteenth-Century America
Michael Ramsey

Robert Tsai (American University - Washington College of Law) has posted Legal Language in Nineteenth-Century America (Nan Goodman & Simon Stern (eds.), The Ashgate Research Companion to Law and Humanities in Nineteenth-Century America (2015)) on SSRN. Here is the abstract: 

This contribution explores the development of legal language in nineteenth-century America as a species of political discourse. In particular, I sketch the broad, competing trends in legal language. On the one hand, legal rhetoric became more popular and fragmented, as the sources of law multiplied. On the other hand, the law also became increasingly sophisticated and specialized with the rise of institutions. These features on the surface of legal rhetoric hinted at deeper changes in the imperatives of political development and efforts at cultural resistance.


Tom Ginsburg: China's Invisible Constitutional Enforcement Mechanism
Michael Ramsey

Tom Ginsburg (University of Chicago Law School) has posted Constitutional Interpretation in Law-Making: China's Invisible Constitutional Enforcement Mechanism (American Journal of Comparative Law, Forthcoming) on SSRN. Here is the abstract: 

It is conventional wisdom that China’s Constitution is unenforceable, and plays little role in China’s legal system, other than as a symbolic document. This view rests on the fact that the Supreme Court has no power to interpret the Constitution. The formal body with interpretive power, the Standing Committee of the National People’s Congress, has never issued an official interpretation. Despite this apparent lack of enforcement, we argue that China’s Constitution indeed plays an increasingly important role within the party-state. It does so not through the courts but through the legislative process, in which formal requirements of constitutional review have helped the legislature to resolve complex disputes about the relationship among different government organs, the economic system, and even rights claims. Understanding this hidden mechanism contributes to our knowledge of the internal constitutional workings of authoritarian systems, which differ from those of liberal democracies. But it is also consistent with broader literatures on the constitution outside the courts, in which internal legislative processes have received relatively little scrutiny.


Kurt Lash Responds to Richard Primus' "The Limits of Enumeration"
Michael Ramsey

Kurt Lash (University of Illinois College of Law) has posted The Sum of All Delegated Power: A Response to Richard Primus, The Limits of Enumeration (The Yale Law Journal Forum, December 22, 2014) on SSRN. Here is the abstract: 

In his provocative article, The Limits of Enumeration, Richard Primus rejects what he calls the “internal-limits canon” and challenges the assumption that the powers of Congress do not add up to a general police power, such that “there are things Congress cannot do, even without reference to affirmative prohibitions like those in the Bill of Rights.” Primus does not claim that federal power actually does amount to a general police power, only that it might. His principal claim is that nothing in the theoretical nature of enumerated power requires an a priori limit on the aggregate scope of delegated authority. As result, the modern Supreme Court is wrong to limit its interpretation of government power in order to maintain a distinction between “what is truly national and what is truly local.”

If we are talking about enumeration in general, then Primus is right: logic does not require that all enumerations of delegated authority exclude at least some other possible delegated authority. If we are talking about our actual Constitution, however, he is wrong. Whatever else is uncertain about the scope of delegated power, the constitutional text, reasonably interpreted, communicates that the sum of all actual delegated federal power amounts to something less than all possible delegated power. If a theory of federal power allows federal regulation of every possible subject, that theory cannot be correct. This fundamental truth about the limited scope of delegated powers of the American government is canonical for good reason: no other interpretation of the meaning of the text is reasonable. In the case of the federal Constitution, the sum of all enumerated power is less than all possible power.

(Also available from the Yale Law Journal's website here).


Judge Wilkinson and Judicial Restraint Revisited
Michael Ramsey

At NRO, Ed Whelan faults Judge J. Harvie Wilkinson for the recent decision in Stuart v. Camnitz, in which a panel of the Fourth Circuit (Judge Wilkinson writing) invalidated on First Amendment grounds a North Carolina statute that required physicians to perform an ultrasound, display the sonogram, and describe the fetus to women seeking abortions.

The decision may well be correct, but (as Ed Whelan notes) it's remarkable coming from Judge Wilkinson, who is the author of the leading recent appeal to judicial restraint as an alternative to both originalism and living constitutionalism -- Cosmic Constitutional Theory: Why Americans Are Losing Their Inalienable Right to Self-Governance.  If judicial restraint means strong judicial deference to legislative judgments (as Judge Wilkinson defines it, rightly in my view), one would think it indicates the opposite result in Stuart -- there's no obvious Supreme Court case on point, the Constitution's text has nothing specific to say on the matter, and other courts have upheld similar statutes.

For me, this highlights the problem with judicial restraint as a self-contained theory of constitutional adjudication.  If it is going to mean anything more than total judicial deference to legislative judgments, it needs a theory for when deference is overridden.  But it has none (notably, Judge Wilkinson does not develop one in Cosmic Constitutional Theory).  Unstated, then, its rule seems to be: defer except when the legislative judgment is unreasonable.  That rule, though, is not manageable in practice.  Without more definite parameters, the rule easily becomes: defer except when the judge does not like the legislative outcome (or perhaps: when the judge really does not like the legislative outcome).  And in this way, judicial restraint becomes little more than a rhetorical device, invoked where judges intervene against the political branches in ways that the speaker doesn't approve (for example, conservatives when they are talking about something other than campaign finance, or liberals when they are talking about something other than same sex marriage). It would have more force as a theory if its proponents stuck up for it more broadly in practice.


William Partlett: The American Tradition of Constituent Power
Michael Ramsey

William Partlett (The Chinese University of Hong Kong (CUHK)) has posted The American Tradition of Constituent Power on SSRN. Here is the abstract: 

How do “the people” exercise their “constituent power” to replace the current constitutional order? The conventional answer — drawing heavily on the American Founding period — is that the people act through specialized constitution-making bodies like constitutional conventions in an extralegal form of constitutional politics. Comparative experience, however, suggests self-dealing majorities can dominate these specialized constitution-making bodies, claim to represent the limitless constituent power of the people, and then unilaterally draft new constitutional law that entrenches their power or policies.

This Article will recover the American tradition of constituent power — which is still present in the common law of the American states — that limits the powers of specialized constitution-making bodies. This tradition in turn minimizes a serious agency problem in constitutional replacement: It allows the people (the principal) to better control their representatives (agents) in extraordinary constitution-making bodies. A recovery of this American practice therefore represents an important step in helping revise the universal claim that courts should play no role in constitutional politics. It suggests that judicial review can — in certain contexts — play an important role in ensuring a fuller and more deliberate expression of constituent power in formal constitutional replacement.


Micro-Symposium on Scalia & Garner's 'Reading Law'
Michael Ramsey

The Green Bag's Micro-Symposium on Scalia & Garner's 'Reading Law' (Green Bag 2d, Vol. 18, No. 1, 2014, pp. 105-123) has been posted on SRRN. Here is the abstract: 

Recently, the Green Bag issued a call for short (1,000 words) essays on Reading Law: The Interpretation of Legal Texts, by Antonin Scalia and Bryan Garner. We sought “[a]ny theoretical, empirical, or practical commentary that will help readers better understand the book.” The result is this micro-symposium. Our call drew dozens of micro-essays, some thought-provoking, some chuckle-prompting, and some both. Blessed with an abundance of good work but cursed by a shortage of space, we were compelled to select a small set – representative and excellent – of those essays to publish in the Green Bag and its sibling publication, the Journal of Law. We regret that we cannot do full justice to the outpouring of first-rate commentary we received. May you enjoy reading the following excellent representatives as much as we did.