11/11/2017

Ilya Somin: Obama's Constitutional Legacy
Michael Ramsey

Ilya Somin (George Mason University - Antonin Scalia Law School, Faculty) has posted Obama's Constitutional Legacy (Drake Law Review, Vol. 65, No. 4, pp. 1039-1053, 2017 (Symposium on "President Obama's Constitutional Law Legacy")) on SSRN.  Here is the abstract:

President Obama leaves behind a mixed legacy on constitutional issues — one that is likely to remain controversial for a long time to come. Its most dangerous element may be the precedents he set for unilateral presidential initiation of war. More positively, the President played an important role in the establishment of a constitutional right to same-sex marriage, and his Administration’s policies unintentionally led to litigation that resulted in stronger judicial protection for federalism, property rights, and religious liberties. Obama’s judicial appointments are notable for their impressive professional qualifications and strong support for liberal judicial ideology. The long-term constitutional impact of the Obama presidency remains to be seen.

And from the same symposium, Eric Berger (University of Nebraska at Lincoln - College of Law): Of Law and Legacies (Drake Law Review, Vol. 65, 2017).  Here is the abstract:

This contribution to the symposium on President Obama’s constitutional legacy examines the relationship between constitutional law and presidential legacies. Americans respect or even revere many presidents despite their apparent constitutional violations. Some unconstitutional actions, though, appear more forgivable than others. The effect constitutional transgressions may have on a president’s more general legacy turns on a variety of contextual factors, including, among others, the president’s values and vision, the administration’s political successes and failures, political opponents’ principles and behavior, the challenges confronting the country, and the nature of the constitutional norms at issue. Constitutional law, as articulated by lawyers and judges, is not irrelevant to presidential legacies, but it rarely defines them. While some of President Obama’s unilateral executive actions raised serious constitutional questions, it is unlikely his legacy will turn on those measures’ legality. In most cases, President Obama followed past presidential practices and offered colorable (though admittedly contestable) legal defenses. Moreover, context helps explain, if not completely justify, many of Obama’s controversial actions. To this extent, historians and members of the general public are likely to view the Obama presidency through a broader, non-legal lens, considering, inter alia, the challenges he inherited, the policies he helped implement, and, especially, the vitriolic opposition he faced in Congress. Indeed, the lead constitutional story from the Obama years will likely highlight not particular executive actions but rather our constitutional system’s deficiencies more generally. American politics became increasingly dysfunctional during Obama’s presidency, and they have not improved since. Dysfunctional politics, of course, ought not immunize executive actions from legal attack. However, the depth of this dysfunction should encourage lawyers to broaden their focus beyond narrow questions of legality in individual cases to more fundamental concerns about the health of our constitutional democracy.

RELATED:  From a while back, and a different symposium, here is my essay Constitutional War Initiation and the Obama Presidency (American Journal of International Law, 2016, symposium on President Obama's international law legacy).

11/10/2017

Paul Stephan: Inferences of Judicial Lawmaking Power and the Law of Nations
Michael Ramsey

Paul B. Stephan III (University of Virginia School of Law) has posted Inferences of Judicial Lawmaking Power and the Law of Nations on SSRN.  Here is the abstract:

This article, presented at a symposium [ed.: hosted by the Georgetown Law Journal] occasioned by the publication of A.J. Bellia’ and Bradford Clark’s The Law of Nations and the United States Constitution, seeks to build on their work. It argues that the law of nations at the time of the founding can inform modern questions of statutory interpretation, at least those with structural constitutional implications. For one important statutory problem, namely a judicial inference of the authority to make federal common law from a grant of subject-matter jurisdiction, the legacy of the founding era’s law of nations still matters.

Bellia and Clark observe that the Supreme Court twice has invoked an inference of prescriptive power from an assignment of adjudicative authority ‒ what I will call a prescriptive inference ‒ to authorize the federal courts to make (their take on) international law into federal law. In 1917, the Court inferred congressional authorization for the federal courts to make federal common law based on international maritime law from the constitutional and legislative grants of admiralty jurisdiction. In 2004, the Court inferred a power to develop a federal common law of international-law torts from the 1789 Judiciary Act’s grant of jurisdiction over tort claims brought by aliens based on the law of nations. Each of these moves frustrates a central goal that, Bellia and Clark argue, the framers pursued. Both increase the risk that the federal judiciary, acting without support or guidance from the political branches, may disturb the friendly relations of the United States with foreign states.

These instances of the prescriptive inference present at least two puzzles. First, why make the inference with respect to admiralty and alien torts, but not alienage jurisdiction, at least in cases invoking the law merchant? The framers created federal alienage jurisdiction to get control over private-law disputes between Americans and foreigners, which State courts had mishandled to the harm of the nation. Why recognize a judicial power to override aberrant state rules in the case of admiralty and alien torts, but not other disputes involving aliens and one of the branches of the law of nations?

Second, where does private international law fit in all this? Did the framers hope to promote the development of uniform rules of recognition of foreign law and judgments through the federal courts, just as they expected the courts to apply the international law merchant and maritime law? If the answer is yes, what explains our modern approach, which allows States to disregard private international law whenever they choose?

I argue that prescriptive inferences generally are problematic and, in the case of international law, confront strong reasons for their avoidance. Contemporary practice with the law merchant and private international law offers a model for a kind of federalism that tolerates State law affecting foreign relations, while reserving to Congress the power to intervene to suppress State misrule. This model fits admiralty and human rights as much as international commerce and recognition of foreign law and judgments.

I also have a paper for the symposium (full list of participants here), which I will post shortly.  And here is a link to the Amazon page for the outstanding book by Professors Bellia and Clark.

11/09/2017

New Book on James Madison by Noah Feldman
Michael Ramsey

Recently published: The Three Lives of James Madison: Genius, Partisan, President, by Noah Feldman (Random House, Oct. 31, 2017).  Here is the book description from Amazon: 

Over the course of his life, James Madison changed the United States three times: First, he designed the Constitution, led the struggle for its adoption and ratification, then drafted the Bill of Rights. As an older, cannier politician he co-founded the original Republican party, setting the course of American political partisanship. Finally, having pioneered a foreign policy based on economic sanctions, he took the United States into a high-risk conflict, becoming the first wartime president and, despite the odds, winning.

Now Noah Feldman offers an intriguing portrait of this elusive genius and the constitutional republic he created—and how both evolved to meet unforeseen challenges. Madison hoped to eradicate partisanship yet found himself giving voice to, and institutionalizing, the political divide. Madison’s lifelong loyalty to Thomas Jefferson led to an irrevocable break with George Washington, hero of the American Revolution. Madison closely collaborated with Alexander Hamilton on the Federalist papers—yet their different visions for the United States left them enemies.

Alliances defined Madison, too. The vivacious Dolley Madison used her social and political talents to win her husband new supporters in Washington—and define the diplomatic customs of the capital’s society. Madison’s relationship with James Monroe, a mixture of friendship and rivalry, shaped his presidency and the outcome of the War of 1812.

We may be more familiar with other Founding Fathers, but the United States today is in many ways Madisonian in nature. Madison predicted that foreign threats would justify the curtailment of civil liberties. He feared economic inequality and the power of financial markets over politics, believing that government by the people demanded resistance to wealth. Madison was the first Founding Father to recognize the importance of public opinion, and the first to understand that the media could function as a safeguard to liberty.

The Three Lives of James Madison is an illuminating biography of the man whose creativity and tenacity gave us America’s distinctive form of government. His collaborations, struggles, and contradictions define the United States to this day.

But sort of oddly, the only blurb (on Amazon anyway) is from "Walter Isaacson, #1 New York Times bestselling author of Leonardo da Vinci" says:  “In order to understand America and its Constitution, it is necessary to understand James Madison.”  Hard to argue with that, but I'd like to know what Jack Rakove -- arguably the nation's leading modern Madison scholar -- thinks.

(Via Larry Solum at Legal Theory Blog).

11/08/2017

More on Jesner v. Arab Bank and the Original Meaning of the Alien Tort Statute
Michael Ramsey

At Just Security, a guest post by me: A Better Solution in Jesner v. Arab Bank.  Here is the introduction:

In Jesner v. Arab Bank, the Supreme Court is asked to decide whether corporations can be sued under the Alien Tort Statute (ATS).  The Court faced this question in the 2012 case, Kiobel v. Royal Dutch Petroleum Co., but avoided it by deciding the case on other grounds.  The court should avoid the issue again in Jesner – again because there is an easier way to resolve the case.

Jesner involves a claim by non-U.S. plaintiffs against a non-U.S. defendant (a bank based in Jordan) for injuries suffered at the hands of a non-U.S. terrorist group (Hamas) outside the U.S. (in Israel and the Palestinian territories).  The bank is alleged to have provided financial services to Hamas affiliates, but the only connection to the U.S. is that some of the funds are said to have been channeled through the bank’s New York branch.  The purpose of the ATS was not to facilitate this sort of claim, and this sort of claim would not have been subject to ATS jurisdiction when the ATS was originally enacted in 1789. 

For me, the key is that the original meaning of Article III of the Constitution does not extend federal jurisdiction to alien-versus-alien claims (except for certain subjects not relevant here), so when the Alien Tort Statute was adopted in 1789, a case like Jesner could not have been brought under it.  (The statute itself does not contain this limit expressly, but it was necessarily limited by the Constitution).  Here is the core argument:

Some scholars contend that the law of nations was understood to be part of the “Laws of the United States” in Article III, but Article III’s text and structure are inconsistent with this reading.  First, Article III specifically lists cases arising under “this Constitution, Laws of the United States and treaties.”  Thus the category “Laws of the United States” did not include either the Constitution or U.S. treaties, even though those are obviously in some sense laws of the United States: the Constitution lists them as part of “the supreme Law of the Land” in Article VI.  It is hard to see how the law of nations – which is not listed as part of Article VI’s supreme law – could be considered part of Article III’s “Laws of the United States” when the Constitution and treaties were not.  It seems much more likely that “Laws of the United States” in Article III meant laws made by the United States, i.e., statutes enacted by Congress.  That apparently was Hamilton’s view in Federalist 80, where in describing Article III’s categories of jurisdiction he referred to “all those [cases] that arise out of the laws of the United States, passed in pursuance of their just and constitutional powers of legislation.”

Further, the structure of Article III shows that, rather than making all of the law of nations a jurisdictional category, the framers picked the types of law-of-nations cases they thought most appropriate for federal jurisdiction.  Thus for example, Article III separately lists admiralty cases and cases involving ambassadors as categories of jurisdiction.  If not governed by U.S. statues or treaties (where there would be “arising under” jurisdiction), these cases would at the time usually have been governed by the law of nations.  But if the law of nations as a whole was already part of federal jurisdiction, these jurisdictional grants would be largely superfluous.  The better view of Article III is that the framers gave specific grants of jurisdiction over particular kinds of law-of-nations cases.  Again, this is confirmed by Federalist 80, in which Hamilton discussed the specific jurisdictional grants as cases likely governed by the law of nations, but made no mention of a general grant of jurisdiction over all law-of-nations cases.

Changes in modern law have opened the door to the Court creating federal common law causes of action that may extend jurisdiction to alien-versus-alien suits in unusual circumstances involving issues of particular concern to the federal government.  But this isn't one of those circumstances, so (I argue) the Court need not, and should not, make the extension here.  Declining to extend jurisdiction would keep the result aligned with Congress' original goals in passing the statute and would conform to the original meaning of the Constitution.

(Note: this is a somewhat more polished and focused version of a post I did here on this blog.)

For a similar but somewhat distinct argument by Professors A.J. Bellia (Notre Dame) and Bradford Clark (GW), see here (at Lawfare).  For a contrary view see here from Professor William Dodge (UC Davis) (also at Just Security; the discussion of the Bellia/Clark position is toward the end of the post).

11/07/2017

Stephen Gardbaum: What Makes for More or Less Powerful Constitutional Courts?
Michael Ramsey

Stephen Gardbaum (University of California, Los Angeles - School of Law) has posted What Makes for More or Less Powerful Constitutional Courts? on SSRN.  Here is the abstract:

It is sometimes suggested that one or other constitutional or supreme court -- for example, the Indian, U.S. or German -- is the "most powerful" in the world. And yet it is far from clear (a) what such power or "strength" of courts consists in; i.e., what measure, metric, criterion, conception, test, or indicia of power/strength is (usually implicitly) employed, (b) what the components of judicial power are under the given measure, and (c) what explains why some courts are more powerful than others. Is strength exclusively or mostly a function of formal legal powers, so that, for example, a court with the authority to invalidate a constitutional amendment on substantive grounds is ipso facto more powerful than one that may only invalidate statutes, which in turn is more powerful than a court that can do neither? Yet, both the U.S. and Japanese supreme courts are in this middle category, indeed have roughly similar sets of legal powers overall, but while the former is often considered among the most powerful courts in the world, the latter is often considered among the weakest. So it seems clear that formal powers do not tell the whole story, but what part do they play, if any, and what else helps to fill in the picture? Although looking to how courts actually use their legal powers is obviously also relevant, it too falls short of fully completing the picture. For what we are additionally in search of are factors that help to explain why, for example, the U.S. and Japanese courts use their powers in such different ways. 

This article seeks to shed light on all three parts of the uncertainty surrounding claims as to the strength or weakness of constitutional courts: the measure, components, and explanation of judicial power. It begins by arguing that the proper measure of the power of a constitutional court is its consequential nature as an institutional actor in terms of affecting the outcomes of important constitutional and political disputes. Although more diffuse and harder to quantify, this conception of judicial power is more inclusive and realistically nuanced than commonly employed uni-dimensional alternatives such as international influence or strike-down rate. The article then suggests that the consequential nature of a constitutional court is a function of three broad categories or types of variable: (1) formal legal rules and powers, (2) legal and judicial practice, and (3) the specific or immediate electoral and political context in which it operates. Through a process of mutual interaction, each of these three helps to shape and constitute the more specific components of a court's institutional power, which include the nature, scope, and content of the constitution it enforces, the jurisdictional and remedial powers it has and employs, the ease or difficulty of constitutional amendment, and its composition and tenure. Moving from measuring to explaining the strength or weakness of constitutional courts, the article next identifies and discusses three explanatory variables: (1) deliberate constitutional design choices, (2) legal culture, and (3) general or structural political context. The article concludes with case studies of the supreme courts of India and Japan that illustrate the role and interaction of these multidimensional evidentiary and explanatory factors.

11/06/2017

Richard Primus and Kevin Stack on Serkin & Tebbe's "Is the Constitution Special?"
Michael Ramsey

Richard Primus (University of Michigan Law School), Christopher Serkin (Vanderbilt Law School), Kevin M. Stack (Vanderbilt University - Law School), and Nelson Tebbe (Cornell Law School) have posted Debate (Cornell Law Review, Vol. 102, No. 6, 2017) on SSRN. Here is the abstract: 

Do lawyers and judges use distinctive arguments when they interpret the Constitution? Should they? In a 2016 article, Is the Constitution Special?, Christopher Serkin and Nelson Tebbe argued that professionals do in fact interpret the Constitution differently from other sources of law, and they questioned the accepted justifications for that difference. Subsequently, the editors of the Cornell Law Review asked Richard Primus and Kevin Stack to respond to the article. The result is this “Debate,” which features several rounds of short responses, published together in the print edition. This format reveals disagreements among the authors about whether the Constitution is and should be interpreted distinctively, how the category “constitutional law” shifts over time, and how the Constitution’s mythic cultural status informs these questions. But it also uncovers much common ground, including a new way of understanding and debating the distinctiveness of constitutional interpretation. The authors conclude by considering what can be done to reduce some of the dangers that commonly accompany constitutional discourse.

11/05/2017

Ronald Cass: The Quest for Analytic Essentials in Law
Michael Ramsey

Ronald A. Cass (Center for the Rule of Law; Cass & Associates, PC; Boston University School of Law; Center for the Study of the Administrative State at George Mason School of Law) has posted Quality and Quantity in Constitutional Interpretation: The Quest for Analytic Essentials in Law on SSRN.  Here is the abstract:

Henry Manne wrote about many topics central to the law-and-economics canon but also over a period of more than a decade later in life worked on a theory of constitutional interpretation, producing a paper and lectures on this subject. His goal was to use insights from economics to improve constitutional analysis, in particular seeking to ground constitutional interpretation in quantitative assessments he hoped would be both true to the primary goal of constitution-makers and capable of providing guidance to judges in ways less subject to the pull of political preferences. Despite his concerns with controlling constitutional interpretation in practice, the instincts Manne brought to this endeavor ran more to matters of theory than to its implementation by judges, identifying important propositions for interpretation but failing (by his own admission) to produce a test that fulfilled his aspirations.

The strengths and weaknesses of this work provide an intriguing contrast with writings from Antonin Scalia, the American jurist and scholar whose approaches to both constitutional and statutory interpretation had a profound impact on jurisprudence over the past three decades. Like Manne, Scalia highly valued more determinate methods of analysis and was deeply concerned with the architecture of constitutional creation and effectuation. His focus, however, was more on the practical question of what happens when a particular sort of official has the power to implement a highly indeterminate test and what test best constrains interpretation in ways faithful to the interpretive task. Those goals undergird Scalia’s commitments to textualism and originalism.

Manne’s and Scalia’s approaches to constitutional interpretation are instructive on the purposes served by analytical tools in disparate settings. In particular, they offer contrasting and complementary visions, providing insights about the domains of law-and-economics, legal analysis, practical judgment, and perspective.

11/04/2017

David Sloss: California's Climate Diplomacy and Dormant Preemption
Michael Ramsey

David L. Sloss (Santa Clara University - School of Law) has posted California's Climate Diplomacy and Dormant Preemption (Washburn Law Journal, forthcoming) on SSRN.  Here is the abstract:

After President Trump announced that the United States would withdraw from the Paris climate agreement, Governor Brown issued a joint statement with his counterparts from New York and Washington, announcing that the three governors “are teaming up to fight climate change in response to President Trump’s” withdrawal decision. A few days later, Governor Brown met in Beijing with China’s President Xi Jinping. The Chinese President reportedly “welcomed California’s efforts to work with the Chinese government to help combat global warming.” According to the California government web site, the state is party to a total of 54 “international agreements” on climate change, including agreements with both national and sub-national governments.

Governor Brown’s international diplomacy raises two distinct constitutional concerns. First, the Compact Clause provides: “No State shall, without the Consent of Congress . . . enter into any Agreement or Compact . . . with a foreign Power.” California’s cap-and-trade agreement with the Government of Québec (the “Linking Agreement”) is vulnerable to a constitutional challenge in this respect. Second, the Foreign Commerce Clause grants Congress power “to regulate Commerce with foreign Nations.” The Supreme Court has held that state laws may violate the Dormant Foreign Commerce Clause if they “prevent this Nation from ‘speaking with one voice’ in regulating foreign commerce.” The Linking Agreement may also run afoul of the Dormant Foreign Commerce Clause. Although the matter is not free from doubt, I conclude that the Linking Agreement does not violate the Dormant Foreign Commerce Clause. However, the Agreement may be unconstitutional under the Compact Clause, absent congressional consent. The Conclusion considers options available to Governor Brown to mitigate potential constitutional difficulties.

The compact clause is surprisingly understudied from an originalist perspective, and it seems likely that quite a few activities we take for granted are problematic under its original meaning.

11/03/2017

Great Reviews for "Scalia Speaks"
Michael Ramsey

Some highly positive reviews for "Scalia Speaks," the newly published collection of Justice Scalia's speeches edited by Christopher Scalia and Ed Whelan:

In the New York Times, from Alan Dershowitz, here, with this conclusion:

Liberal constitutional lawyers will continue to debate Justice Scalia many years after his death, because when it comes to jurisprudence, he was the most transformative jurist of our generation. His views cannot be ignored. That is his enduring legacy. But he was more than an influential justice. He was a great man, who lived life to the fullest — as a devout Catholic, a proud Italian-American, a devoted family man, a loyal friend, and a person of humor and culture who fondly remembered his roots in Queens and New Jersey. “Scalia Speaks” gives us a glimpse of the man, as I came to know and respect him, despite — no, because of — our arguments.

At SCOTUSblog, Ronald Collins: Justice Scalia’s living words.

If one would know Justice Oliver Wendell Holmes, one must read his memorable speeches, especially his Civil War addresses. The same holds true for Justice Antonin Gregory Scalia: If you would know Scalia the man, read “Scalia Speaks: Reflections on Law, Faith, and Life Well Lived.” In this volume, Christopher Scalia (one of the justice’s sons) and Edward Whelan (law clerk to Scalia for the October 1991 term) give posthumous voice to the late justice by way of a collection of 48 thematically organized speeches delivered between 1984 and 2014. The book’s eight parts – concerning law, life, learning, faith, virtue, friendship and more – show this immigrant son as an American proud of his heritage. Whatever side of the ideological divide one stands on, it is hard not to take heed of what Scalia said in a 1986 speech, the one offered up as the lead in this anthology:

[O]ur attachment to and affection for our particular heritage does not drive our society apart, but helps to bind it together. Like an intricate tapestry, the fabric of our society is made up of many different threads that run in different directions, but all meet one another to form the whole. 

And then this: “[W]e should not fail to be grateful for what America has given to us. It has given us, first and foremost, a toleration of how different we were when we came to these shores.”

That ethos echoes through the book, as Scalia speaks about the nation he loved, the education he valued, the courage of others he esteemed, the faith he cherished, the law and freedom he treasured, and the heroes and friends he venerated. Whether in a speech to students at his alma mater (Xavier High School in New York City), or in his remarks at Wesleyan University (to deliver the Hugo Black Lecture on freedom of expression), or in his words to members of B’nai B’rith in Washington, D.C., time and again the voice of the man leaps from the pages.

At Law360 (subscription required), Judge William Pryor has a review that begins:

For those who will forever celebrate the life and career of the late Justice Antonin Scalia or for those who simply want to learn more about this giant of American law, one of Justice Scalia’s sons, Christopher, and one of his former law clerks, Edward Whelan, have teamed up to publish an indispensable collection of the late justice’s best speeches ...

In today's Wall Street Journal (also subscription required), University of Virginia law professor (and former Scalia clerk) John Duffy has this review; at NRO Ed Whelan has excerpts, including:

This marvelous book surely will be required reading for anyone seeking to understand the mind of this great jurist and conservative thinker. But I would go further and say that it should be required reading for anyone who wishes to understand the mind of a great American, a figure so important to our history that his passing influenced the presidential election held months later. If Scalia Speaks can be said to have one fundamental flaw—one shared with the man’s life—it is that it ends too soon.

(Thanks to Ed Whelan for pointers).

11/02/2017

Christopher Walker: Restoring Congress's Role in the Modern Administrative State
Michael Ramsey

Christopher J. Walker (Ohio State University - Michael E. Moritz College of Law) has posted Restoring Congress's Role in the Modern Administrative State (Michigan Law Review, Vol. 116, 2018 forthcoming) on SSRN.  Here is the abstract:

In Congress’s Constitution, Josh Chafetz provides a timely and compelling historical account of the powers Congress possesses to compete with the other branches of government in our separation-of-powers framework. This Review makes two main observations. Particularly in light of the rise of the regulatory state, Part I explains how the toolbox of congressional powers Chafetz assembles can play a critical role in overseeing and influencing federal agency regulatory activities. Part II then offers a word of caution concerning Congress’s use of this toolbox without also passing laws. To restore Congress’s proper role in the modern administrative state, it is not enough for members of Congress to effectively oversee regulatory lawmaking. Congress must regularly legislate — to reauthorize and modernize the statutes that govern federal agencies, to respond to regulatory activity with which Congress disagrees, and to preserve the separation of powers between legislation and regulation.

And here is a link to Josh Chafetz' book Congress's Constitution: Legislative Authority and the Separation of Powers (Yale Univ. Press 2017).