Harold Lloyd: Justice Scalia and Queen Anne
Michael Ramsey

Harold Anthony Lloyd (Wake Forest University School of Law) has posted Justice Scalia and Queen Anne (The Huffington Post July 9, 2015) on SSRN.  Here is the abstract:  

This article explores problems with several definitions of Originalism proposed by Justice Scalia in "Reading Law: The Interpretation of Legal Texts." It begins by looking at Justice Scalia's citation of a possible statement by Queen Anne that Justice Scalia claims in itself justifies Originalism. Queen Anne may have told Sir Christopher Wren that St. Paul's Cathedral was "awful, artificial, and amusing" at a time when those words meant "awe-inspiring, highly artistic, and thought-provoking." Conceding that one must understand how Queen Anne meant these terms, this article shows how this example actually undermines Originalism when applied to on-going rules. It also explores inconsistencies and problems with several definitions of Originalism including Justice Scalia's arbitrary exclusion of technology from the constraints of "original meaning." It further disputes his claim that Originalism ". . .will narrow the range of acceptable judicial decision-making and acceptable argumentation [and that it] will curb -- even reverse -- the tendency of judges to imbue authoritative texts with their own policy preferences." This article maintains that Originalism has the opposite effect.


Originalism in Canada?
Michael Ramsey

Via Josh Blackman: PM Harper Appoints Conservative Blogging Law Professor to Canadian Supreme Court (the professor is Russ Brown, formerly of the University of Alberta).

The Globe and Mail reports:

In his blogs, the 49-year-old Justice Brown accuses the court of expanding the reach of the Charter of Rights and Freedoms beyond what those who drafted it intended. From the beginning, he says, the court misinterpreted the right to life, liberty and security, the section that caused prostitution and assisted-suicide laws to be struck down. (He is the third former academic appointed in the past eight months to voice this view. Bradley Miller and Grant Huscroft, named by the Conservative government to the Ontario Court of Appeal in the past eight months, are the others.)

Steven Semeraro: Interpreting the Constitution's Elegant Specificities Through Farsighted Originalism
Michael Ramsey

Steven Semeraro (Thomas Jefferson School of Law) has posted Originally Meant to Live: Interpreting the Constitution's Elegant Specificities Through Farsighted Originalism on SSRN.  Here is the abstract:     

Professor Semeraro's essay contends that the traditional debate between originalism and living constitutionalism is a charade because American constitutionalism commits all interpreters to both methods.

Originalism comports with American society's commitment to the written rule of law, not men. Living constitutionalism resonates with the tradition of self-government embodied in the ideal of "We the People." The on-going debate over the Constitution's majestic generalities in fundamental-rights-defining cases thus amounts to the search for the proper accommodation between originalism and living constitutionalism rather than a choice between them.

Professor Semeraro proposes a new method of constitutional interpretation – farsighted originalism – for cases dealing with specific constitutional clauses regulating intra-governmental conflicts. Scholars and judges have long assumed that these specific clauses would prove easier to interpret. But in the last two terms, bitterly divided Courts have struggled with them. Using an analogy to quantum mechanics, Professor Semeraro shows that the Constitution's specific clauses should be interpreted through the problem-solving rubric embodied in the clause. This rubric creates a superposition of potential original meanings, all of which the founding generation – in a meaningful sense – held, even though they may not have considered all of the circumstances to which the rubric might apply. In this way, the meaning of the Constitution remains fixed, as originalism requires, while simultaneously living to resolve new problems.


Julian Ku on the Constitution and the Iran Deal
Michael Ramsey

At Opinio Juris, Julian Ku defends the constitutionality of the Iran deal (expanding on his discussion in this podcast from the National Constitution Center [also featuring David Rivkin]).

He makes two arguments: 

First, the terms of the agreement, which describe its obligations as “voluntary”, indicate that it is a nonbinding “political commitment”.  Even the UN Security Council Resolution which supposedly enshrined the JCPOA into international law leaves some wiggle room for the U.S. allowing it to refuse to lift sanctions on Iran without violating the SC Resolution (or at least that is how John Bellinger reads it).


Second, the JCPOA does not have to be submitted as a treaty because it doesn’t require the U.S. to change its domestic laws or even to change any domestic policy that is not already within the President’s constitutional or delegated statutory powers.  Crucially, the President has delegated authority under the various sanctions statutes to waive or lift those sanctions without getting further congressional approval.  That is by far the most important U.S. obligation under the JCPOA.  The idea of giving the president these powers to lift sanctions implies that he will seek out certain changes in behavior by the sanctioned governments and then use those promised changes (by say Iran, or in the recent past Burma) as a basis to lift the sanctions.

The consequence, he adds, is that:

Iran should not feel itself “legally” bound to abide by the agreement, or at least those parts that are not enshrined in the UN Security Council Resolution.  For U.S. constitutional purposes, it also means that any future president can withdraw from these political commitments without any requirement of legal consultation with Congress or any concerns about violating international law.  A U.S. President is also empowered to withdraw from its UN Security Council commitments as well.

Professor Ku points to the 1972 Shanghai Communique between the U.S. and China as precedent for a significant nonbinding agreement done on independent presidential authority.  I agree that the Shanghai Communique (which established the basis for U.S.-China diplomatic relations) was constitutional as an aspect of the President's executive power over foreign affairs.  But I think it was a very different matter from the Iran agreement.  Here is the only really substantive commitment by the U.S. in the Communique: 

12.  The U.S. side declared: The United States acknowledges that all Chinese on either side of the Taiwan Strait maintain there is but one China and that Taiwan is a part of China. The United States Government does not challenge that position. It reaffirms its interest in a peaceful settlement of the Taiwan question by the Chinese themselves. With this prospect in mind, it affirms the ultimate objective of the withdrawal of all U.S. forces and military installations from Taiwan. In the meantime, it will progressively reduce its forces and military installations on Taiwan as the tension in the area diminishes. ...

This is very different from the Iran JCPOA on both dimensions I identified as constitutionally problematic in my prior post.  

First, it is not written in the language of binding commitment.  It simply says that the U.S. "acknowledges" [for the moment] that there "is but one China."  In contrast, the JCPOA has specific commitments, timetables, and even a dispute resolution process.  It looks much like a binding agreement would look.  And the U.S. has not (so far) been clear that the JCPOA is nonbinding.  (Nonetheless, I agree with Professor Ku that (a) the best argument for its constitutionality is that it is nonbinding, and (b) if it is nonbinding, it would have the consequences -- or rather lack of consequences -- he identifies).

Second, unlike the JCPOA, the Communique does not purport to commit the U.S. executive branch to specific actions in the distant future.  It only states the U.S.'s current policy position.  It does not imply anything about how future presidents might view the situation.  In contrast, the JCPOA contains specific commitments about things the U.S. will do (or refrain from doing) in the distant future (after President Obama's term has expired).

To expand a little on my prior post, I think the latter feature of the JCPOA makes it constitutionally problematic even if it is unambiguously nonbinding.  This seems to follow from the basis of the President's constitutional authority to give diplomatic assurances.  The President can't make promises binding on the U.S. as a whole in this situation (since these would need to be approved by the Senate), but he can make diplomatic representations about what he himself will do (that's part of his diplomatic power).  It follows that he can make conditional representations -- that is, he can say: I will do X if you do (or agree to do) Y.  As a result, a nonbinding agreement relating to matters within the President's power is constitutional, because it is in effect a conditional representation.  However, the President can't make diplomatic representations about what some other body will do. That is, he can't give assurances that, for example, Congress will pass legislation; he can't speak for Congress (even in a nonbinding way).  Similarly, it seems also to follow that he can't give assurances about what a future president will do.  Just as the current president doesn't control -- and so can't speak for -- Congress, he likewise doesn't control, as so can't speak for, a future president.   But in making an agreement (even a nonbinding one) that would have to be carried out by a future president, President Obama is purporting to speak for a future president.  I do not see any constitutional source for this authority.


More from Damon Root and Ed Whelan on Judicial Restraint
Michael Ramsey

At Reason, Damon Root: Ted Cruz, Judicial Activism, and 'Useful Idiots for Progressive Statists'.  An excerpt: 

If you examine the actual legal arguments made by prominent conservative legal thinkers (as I do in my recent book Overruled), you will find that it is the conservatives who routinely adopt legal positions that were first invented or pioneered by the progressive left. It is conservative advocates of judicial restraint, for example, who consistently invoke the writings of Progressive hero Justice Oliver Wendell Holmes. Similarly, it is conservative advocates of judicial restraint who say that the New Deal Supreme Court was correct when it stopped protecting economic rights from government infringement. Conservative Justice Antonin Scalia even went so far as to cast a vote in favor of the New Deal's expansive interpretation of the Commerce Clause in the 2005 medical marijuana case Gonzales v. Raich.

Conservative SCOTUS critic Ted Cruz, meanwhile, recently proposed "an amendment to the U.S. Constitution that would subject each and every justice of the United States Supreme Court to periodic judicial retention elections." Not coincidentally, that bright idea was first popularized on the national stage by the granddaddy of all progressive statists, the trust-busting, warmongering ex-president Theodore Roosevelt. ...

Ed Whelan responds at NRO: On Libertarians and ‘Useful Idiots’.  

Root’s first point is that “conservative advocates of judicial restraint” join progressives in broadly deferring to progressive democratic enactments. I don’t dispute the point, broadly stated. But most of us who are “conservative advocates of judicial restraint” see judicial restraint as supplementing originalism, not as substituting for it. (See, e.g., the “Third” point in this essay of mine). That means that, unlike progressives, we will recognize clear limits on governmental power. So, insofar as Root is concerned about deference to progressive democratic enactments, he still ought to prefer judicial conservatives to judicial progressives.

Root also observes that [Clark] Neily was “one of the libertarian lawyers who conceived, litigated, and won the landmark Second Amendment case known as District of Columbia v. Heller.” Yes, he was—and Heller is a model of what libertarian and conservative originalists can achieve together. It thus supports my observation that libertarians have a far more promising alliance with conservatives than with progressives.


Amanda Tyler: Habeas Corpus and the American Revolution
Michael Ramsey

Amanda L. Tyler (University of California, Berkeley - School of Law) has posted Habeas Corpus and the American Revolution (California Law Review, Vol. 103, No. 3, 2015) on SSRN.  Here is the abstract:      

Modern debates concerning the protections afforded by the Suspension Clause of the U.S. Constitution have taken place within the Supreme Court’s chosen methodological approach in this context, which openly calls for careful attention to the historical backdrop against which the Clause was drafted. This approach is hardly surprising given that long ago Chief Justice John Marshall declared that when the Founding generation constitutionalized “this great writ,” they invoked “[t]he term...in the [C]onstitution, as one which was well understood.” No matter how well the Founding generation understood the content, reach, and application of the “privilege of the writ of habeas corpus,” however, significant portions of the relevant historical backdrop to the ratification of the Suspension Clause remain lost to the annals of history. In particular, the details surrounding one of the most consequential periods in the history leading up to the adoption of the Suspension Clause — namely, the treatment and legal classification of the American colonists by the British during the American Revolutionary War — remain largely unexplored in legal scholarship. 

Professor Tyler seeks to recover and tell this story here by drawing upon a wealth of sources, including: archival documents, parliamentary debates, contemporary press accounts, colonial papers, diaries and private papers of key participants, and significant decisions and rulings of the British courts. As these materials reveal, determinations regarding the reach and application of the English Habeas Corpus Act of 1679, rather than solely the common law writ of habeas corpus, were of tremendous consequence during this important period in Anglo-American legal history. Where the Act was in force and where prisoners could claim its protections, the legal framework demanded that such persons be charged criminally and tried in due course or otherwise be discharged. Significantly, the privilege associated with the English Act did not speak merely to process; it further imposed significant substantive constraints on what causes would be deemed legal justification for detention in the first instance. The important role that the Act played in the Revolutionary War legal framework, moreover, suggests that modern jurisprudence has underappreciated the Act’s enormous influence upon the development of habeas law in the Anglo-American tradition. Finally, the history recovered here demonstrates more generally that during the Revolutionary War, suspension, geography, and allegiance each played significant roles in determining the availability of the privilege of the writ of habeas corpus to those who would claim its protections.

(Via Larry Solum at Legal Theory Blog, who says "Highly Recommended").


Brian Lipshutz: Justice Thomas and the Originalist Turn in Administrative Law
Michael Ramsey

Brian Lipshutz (Yale Law School, JD '15) has posted Justice Thomas and the Originalist Turn in Administrative Law (Yale Law Journal Forum, 2015) on SSRN.  Here is the abstract:

Until recently, it seemed that administrative law was beyond the reach of originalism at the Supreme Court. But this past term, Justice Thomas wrote six concurring and dissenting opinions amounting to a systematic originalist critique of administrative law. 

In these cases–AAR, Perez, B&B Hardware, Wellness International, Texas Department of Housing, and Michigan v. EPA – Justice Thomas re-examined non-delegation, judicial deference, and agency adjudication of private rights. This Essay highlights that these opinions are the first sustained originalist analysis of administrative law by a Justice. It also identifies the ways in which the opinions connect to each other, to scholarship, to previous opinions, and to possible future opinions.


New Book: "A Less Perfect Union: The Case for States' Rights" by Adam Freedman (with a Review by Michael Greve)
Michael Ramsey

Adam Freedman's book A Less Perfect Union: The Case for States' Rights (Broadside Books 2015) is now published.  Here is the book description from Amazon: 

The Constitution's stated purpose is to create "a more perfect union." but what if our union has become too perfect? what if our national government has become too powerful? what if our states are losing the very rights and freedoms that made our country what it is?

"States' rights" has become a dirty phrase in American politics. Over the past few decades, especially since the civil rights movement, liberals have been amazingly successful in painting states' rights as a smoke screen for racist repression. It is a convenient way to demonize small government conservatives and tar them with the brush of segregation.

Yet as Adam Freedman reveals in this surprising and essential book, states' rights has been an honorable tradition—a necessary component of constitutional government and a protector of American freedoms since the birth of our nation. In fact, states' rights has historically been the rallying cry for just about every cause progressives hold dear: the abolition of slavery, union rights, workplace safety, social welfare entitlements, and opposition to war.

In A Less Perfect Union, Adam Freedman provides an illuminating history of states' rights, from the Constitutional Convention through the Civil War and the New Deal to today. He reveals how hard the Founders fought to keep power in the hands of the states, the surprising role of states' rights as a weapon against slavery, and the federal government's eventual abandonment of all constitutional limitations on the scope of its power. Surveying the latest developments in Congress and the state capitals, he finds a growing sympathy for states' rights on both sides of the aisle, as the federal government usurps more and more control.

But Freedman goes further, boldly arguing that a return to states' rights is the only way to check the tyranny of federal overreach, take power out of the hands of the special interests and crony capitalists in Washington, and realize the Founders' vision of freedom. With concrete policy proposals, A Less Perfect Union lays out an achievable vision of a nation in which states are free to address the health, safety, and economic well-being of their citizens without federal coercion and crippling red tape.

As states' rights issues continue to drive the national conversation as we approach 2016 and beyond, A Less Perfect Union is essential reading for anyone frustrated by the federal government's daily infringement of the quintessentially American right of local self-government.

Via Michael Greve at Liberty Law Blog (with a pointer to his [generally favorable] review in the Wall Street Journal).


Two Reasons the Iran Deal Is Unconstitutional
Michael Ramsey

In the Wall Street Journal, David Rivkin and Lee Casey argue that "The Iranian nuclear agreement announced on July 14 is unconstitutional, violates international law and features commitments that President Obama could not lawfully make."  (Via Elizabeth Price Foley at Instapundit, who has further quotes and  favorable comments).  Jack Goldsmith responds at Lawfare: More Weak Arguments For The Illegality of the Iran Deal.

I agree with most of Professor Goldsmith’s comments, including: (a) I think objections to the UN Security Council resolution are misplaced, as it appears to the bind the U.S. to future action regarding U.S. sanctions [at least that’s what John Bellinger says, and I would not want to argue with him], and (b) I see no constitutional objection to the President telling Iran that he will take certain actions that are within his constitutional and statutory powers [as Goldsmith has argued previously].

But I still think the Iran deal is constitutionally problematic, for two reasons (neither of which Professor Goldsmith addresses):

1.  The deal’s constitutionality appears to depend on it being non-binding.  A number of commentators have assumed that it is.  But it appears ambiguous  at best on this point.  It’s true that the text (introduction to Article I) declares that “Iran and E3/EU+3 will take the following voluntary measures...”  But standing alone that language seems unclear – does it mean that the parties need not take the measures unless they voluntarily want to in the future, or that the parties are voluntarily (i.e., without coercion) entering into the agreement?  On a quick read, nothing else in the agreement refers to it as non-binding, and many of its measures are described in obligatory terms.  (For example, Section 26, the U.S. “will refrain” from re-imposing sanctions once sanctions are lifted.)  Although the U.S. negotiators previously referred to the pending deal as nonbinding, Iran insisted in response that it was intended to be binding (this was in March/April of this year).  I’m not aware that the U.S. has recently and unequivocally described the deal as nonbinding (and even if it did, it’s not clear that the unilateral view of the U.S. negotiators would be conclusive).

In my view, the President has a constitutional obligation to make clear, to both the other parties to the agreement and to Congress, that the agreement is nonbinding.  For reasons set forth here, the President does not have independent constitutional power to make a binding agreement in these circumstances.  But if the U.S. is not clear that the agreement is nonbinding, the agreement might be regarded as binding under international law despite the unexpressed U.S. intentions.  Moreover, as Congress considers whether to approve lifting U.S. sanctions, Congress needs to understand whether Iran’s commitments under the deal are binding (especially because if the U.S. commitments aren’t binding, neither are Iran’s).

As a result, at minimum the deal is unconstitutional unless the administration makes clear (and gets agreement from the other parties) that the deal is nonbinding.

2.  Even if the deal is nonbinding, the President has still exceeded his authority by making commitments on which he cannot deliver.  As noted, I entirely agree with Professor Goldsmith that the President, exercising his executive power over foreign affairs, may agree that he will take actions within his constitutional and statutory power if Iran undertakes specified actions (all in a reciprocal and nonbinding way).  But the Iran deal promises U.S. actions beyond President Obama’s term in office, and as a result promises actions over which he has no control.  To take two examples --

As noted, under Section 26:

The U.S. Administration, acting consistent with the respective roles of the President and the Congress, will refrain from re-introducing or re-imposing the sanctions specified in Annex II that it has ceased applying under this JCPOA, without prejudice to the dispute resolution process provided for under this JCPOA. The U.S. Administration, acting consistent with the respective roles of the President and the Congress, will refrain from imposing new nuclear-related sanctions.

Under Section 28:

Senior Government officials of the E3/EU+3 [which includes the U.S.] and Iran will make every effort to support the successful implementation of this JCPOA including in their public statements.

Both sections reflect ongoing commitments by the U.S. for the ten-year life of the deal.  At minimum, these sections purport to direct future U.S. Presidents to support the deal, and at least arguably they direct future Congresses not to re-impose sanctions.  Even if these directions are not binding as a matter of international law, they create diplomatic expectations which seem constitutionally unsound.  Nothing in the Constitution empowers the President to speak for future Presidents.

It may be argued that, whatever the Constitution’s original meaning, Presidents have entered into many nonbinding commitments on important matters, sufficient to establish a constitutional precedent.  I’m skeptical, however, that many prior nonbinding commitments have contained specific directions to future Presidents, as opposed to undertakings by the current President.  (And even if they have, they may simply represent previous constitutional violations).

In sum, the Iran deal is unconstitutional (a) because the President has not taken sufficient action to assure that it is nonbinding under international law, and (b) even if it is nonbinding under international law, it should be only a commitment of the current President and should not purport to be an undertaking of future Presidents for whom the current President cannot speak.


William Marshall: Evaluating the Obama Administration’s Commitment to Unilateral Executive-Branch Action
Michael Ramsey

William P. Marshall (University of North Carolina at Chapel Hill - School of Law) has posted Actually We Should Wait: Evaluating the Obama Administration’s Commitment to Unilateral Executive-Branch Action (2014 Utah Law Review 773 (2014)) on SSRN.  Here is the abstract:      

Although once committed to diminishing the expansion of presidential power, President Obama has become a proponent of energetic unilateral executive-branch action. Faced with a relentless and uncompromising opposition in Congress, the President has come to believe that it is only through the exercise of his unilateral powers that he will be able to accomplish his agenda and meet the promises that he made to the American people.

Some defend President Obama’s expansive use of presidential power because Congress has been so defiant. According to this view, the President should have the authority to aggressively use executive power when Congress does not act responsively or appropriately. This article contests that position. It agrees with the premise that increased polarization in American politics has made the work of the executive branch more difficult and that this Congress in particular has failed to act responsibly. It also agrees that presidents may no longer be able to expect that members of Congress will abandon their partisan interests in favor of the common good. It does not agree, however, that separation-of-powers constraints on the presidency should be adjusted to reflect this new political dynamic.

Part I of this article provides the necessary background by briefly describing the partisan political gridlock faced by President Obama and identifying some of the unilateral uses of presidential power employed by the Obama administration in its efforts to overcome or circumvent its political opponent's obduracy. Part II places the Obama administration's actions in context by discussing why presidential power had already become so expansive and why it continues to expand. Part III discusses the paradoxical role that congressional obstruction plays in relation to presidential power. Part IV identifies some of the concerns related to the centering of power in the presidency and questions whether, for whatever reasons, including congressional obstruction, presidential power should be expanded in a manner that accentuates those concerns. Weighing the concerns of government breakdown and harm to the national interest on one side versus aggrandized presidential power on the other, it contends that the constitutional answer to this question, with minimal exceptions, should be no.