Josh Blackman on the OLC Memo and the Constitutional Limits of Prosecutorial Discretion
Michael Ramsey

Josh Blackman has multiple posts on the President's immigration order, including: The Constitutional Limits of Prosecutorial Discretion. Here is an excerpt: 

The Department of Justice Office of Legal Counsel’s memorandum justifying President Obama’s new executive action recognizes that prosecutorial discretion is not “unlimited.” As a result, the memo attempts to draw a line between lawful prosecutorial discretion, and unconstitutional executive lawmaking.

Citing the Supreme Court’s 1985 precedent of Heckler v. Chaney, the memo identifies four “principles governing the permissible scope of enforcement discretion.” First, as the Court noted in Chaney, enforcement decisions should reflect “factors which are peculiarly within [the enforcing agency’s] expertise.” This factor would almost always seem to be satisfied.

Second, the President “cannot, under the guise of exercising enforcement discretion, attempt to effectively rewrite the laws to match its policy preferences.” Specifically, the memo adds, “an agency’s enforcement decisions should be consonant with, rather than contrary to, the congressional policy underlying the statutes the agency is charged with administering.” This argument reflects the backdrop of Congressional acquiescence, and the failure of the legislative branch to set any broad policies concerning immigration laws.

Plus this: Eight Observations About OLC Memo on Constitutionality of Executive Action on Immigration

And this: My Op-Ed in L.A. Times – Congress has itself to blame for ceding so much power to the President. Here is an excerpt: 

Last week at the Federalist Society convention, a panel was held on the President’s duty to take care that the laws are faithfully executed with John Baker, Ron Cass, John Eastman, Chris Schroeder, Neal Devins, and moderated by Judge Griffith (CADC). Most of the discussion focused on the President’s ability to defer prosecutions of deportations. Sam Stein of the Huffington Post (who was sitting next to me by the only table in the Mayflower with a power outlet) reported “Legal Panel At Federalist Society Begrudgingly Accepts Obama’s Immigration Powers.”

This headline irked many members of the Federalist Society, but Sam accurately reported the event.

The talk was, well, lawyerly. Every conclusion seemed to have a qualification attached to it. But, by and large, the panelists agreed the president has wide legal latitude to prioritize and shape deportation laws, as regrettable for Republicans or the long-term balance of powers that may be.

My good friend John Baker made a very important point, which inspired an Op-Ed I wrote in today’s Los Angeles Times.

“If Congress wants to restrain the discretion of the president, they are supposed to do what the separation of powers encourages them to do: Write the statute tightly so that it will be actually administered the way you want it administered,” Baker said. “The reality is many members of Congress don’t care how it is administered until somebody squawks about it. They don’t read the statutes, so how do they know how it is going to be administered.”

As usual, John is exactly right on the structure of our Constitution. Throughout the 20th Century, Congress has shirked its duty to legislate and appropriate to maintain the separation of powers.

RELATED:  At Balkinization, Adam Cox and Cristina Rodriguez: Executive Discretion and Congressional Priorities. Here is an excerpt: 

... [I]n the debate leading up to the President’s announcement of administrative immigration relief, most commentators acknowledged that his prosecutorial discretion was not unlimited—that somewhere a line would be crossed from permissible effectuation of enforcement priorities and to an unconstitutional failure to enforce the law.  Yet most commentators—especially proponents of the President using his discretion to provide relief to broad categories of unauthorized immigrants—have been reluctant to specify where that line might be.  We think this is because the line cannot be drawn with precision using conventional legal analysis.  Last night the debate changed with the OLC opinion’s decision to draw a sharp line.

The OLC opinion is a fascinating and important legal document, and in our view it reflects a novel conception of the President’s enforcement authority.  The memo ties the President’s use of his prosecutorial discretion directly to “congressional priorities.”  Again and again, the memo emphasizes the importance of whether a discretionary decision is “consistent with . . . the priorities established by Congress” in the Immigration and Nationality Act.  Where the decision to grant relief tracks priorities reflected in the statute, such as keeping intact the families of citizens and lawful permanent residents, it falls within the zone of discretion. But where the relief cannot be linked to statutory provisions, the executive is constrained.  This is the reason OLC concluded that providing relief to the parents of DACA recipients would not be lawful.

ALSO:  Via Volokh Conspiracy, here is the OLC memo; Ilya Somin comments here.

A Comment in Response to Dale Carpenter Regarding Equal Protection
Andrew Hyman

Mike Ramsey recently quoted Professor Dale Carpenter as follows: “The Equal Protection Clause is a self-conscious repudiation of exclusion and hierarchy supported by nothing more than ancient practice.”  Perhaps it would have been wise if the clause really said that, but I don’t think it was written that way.  Presumably, Professor Carpenter means that the exclusion and hierarchy are supported by nothing but ancient practice together with current legislative action.  As I understand it, this clause of the Constitution does not endorse unreasonable exclusion and hierarchy, but neither does it authorize the federal judiciary to make such reasonableness determinations all by itself.

To start with, let us consider what a few legal luminaries have had to say about the original meaning of this clause of our Constitution.  Keep in mind that these scholars either support a non-originalist meaning of the clause, or alternatively would rely upon other constitutional clauses or values to advance equal rights.   With that caveat out of the way, consider: Professor Laurence Tribe says that “the Constitution lacks a textual basis for much of what is commonly attributed to the very notion of ‘the equal protection of the laws’….[which] was taken to mean less than ‘the protection of equal laws.’”  As far as I am aware, Professor Steven Calabresi has not altered his view that, “the Equal Protection Clause says nothing about equality in the making or implementing of equal laws.” According to Professor Kermit Roosevelt, “the most natural reading of ‘equal protection of the laws’ probably takes it to be about application or enforcement, rather than content.”  Judge Richard Posner is on that bandwagon too: “on its face the equal protection clause guarantees not legal equality but merely equal protection of whatever laws there may happen to be….”  Others could be added to the list, which should at least give pause to anyone who suggests, as Professor Carpenter does, that the U.S. Supreme Court was actually given power in 1868 to strike down whatever governmental classifications that it deems unreasonable and/or hierarchical.  A further caveat: I do not entirely agree with Professor Carpenter but also do not entirely agree with those other luminaries whom I’ve quoted; the truth lies, as it so often does, in the middle.

So where did Professor Carpenter’s notion come from?  It is certainly not original to him, so where did it originate?  As best I can tell, the historical source most commonly cited for this idea is the speech of Senator Jacob Howard introducing the Fourteenth Amendment in the Senate, in 1866.  According to the Congressional Globe, he said: “This abolishes all class legislation in the states, and does away with the injustice of subjecting one caste of persons to a code not applicable to another.”  Don’t get me wrong, these are excellent sentiments to guide legislative action, but if Howard was correct then the Supreme Court could legitimately (though unwisely) characterize virtually any legislative classification as verboten, whether it be a law that imposes special burdens or disabilities upon kleptomaniacs, or children, or police officers, or what have you.  Howard is recorded in the Congressional Globe as saying those words, but I (like those luminaries I mentioned) do not think they are fairly inferrable from the original meaning of the text of the clause.  Equally significant is that not a single solitary one of the newspaper accounts of Howard’s speech included anything like that quote in the Congressional Globe about class legislation.  See hereherehereherehereherehere and here.  However, Howard’s line about “class legislation” did show up in his handwritten draft of that speech.  Why it was omitted from all news reports remains a mystery, though it may be that he skipped over that part of his draft speech, and only included it in the Congressional Globe by altering “the transcript prior to its printing” (which is one of David Hardy’s guesses).

There were other speakers during the ratification period from 1866 to 1868 who mentioned that the Fourteenth Amendment would prohibit class legislation, but there were still others who were more careful and precise.  I myself believe that the Fourteenth Amendment does bar states from having various laws that amount to class legislation, but only if Congress has restrained the executive branch from making such discriminations.  The Equal Protection Clause does not say that “no state shall deny equal protection to any person within its jurisdiction,” although that is how the U.S. Supreme Court has interpreted it.  Can you spot the words I have omitted?


John Stinneford: Death, Desuetude, and Original Meaning
Michael Ramsey

John Stinneford (University of Florida Levin College of Law) has posted Death, Desuetude, and Original Meaning (William & Mary Law Review, Vol. 56, 2014) on SSRN. Here is the abstract: 

One of the most common objections to originalism is that it cannot cope with cultural change. One of the most commonly invoked examples of this claimed weakness is the Cruel and Unusual Punishments Clause, whose original meaning would (it is argued) authorize barbaric punishment practices like flogging and branding, and disproportionate punishments like the death penalty for relatively minor offenses. This Article shows that this objection to originalism is inapt, at least with respect to the Cruel and Unusual Punishments Clause. As I have shown in prior articles, the original meaning of “cruel and unusual” is “cruel and contrary to long usage,” or “cruel and new.” The primary purpose of the Cruel and Unusual Punishments Clause is to prevent legislatures and courts from imposing new punishments that are unduly harsh in light of the long usage of the common law. This Article demonstrates that the Clause also incorporates the common law doctrine of desuetude, which holds that a once traditional punishment can become “unusual” if it falls out of usage long enough to show a stable multigenerational consensus against it. State courts and the Supreme Court of the United States employed this doctrine in decisions prior to 1958 to determine whether punishments such as ducking of a common scold, execution accompanied by torture, and imprisonment at hard labor for a minor offense were cruel and unusual. Under the original meaning of the Cruel and Unusual Punishments Clause, the death penalty could become unconstitutional if it fell out of usage long enough to show a stable, multigenerational consensus against it. This process already occurred with respect to flogging, branding, and execution for relatively minor crimes like theft, and under the constitutions of states that abolished the death penalty several generations ago.


Josh Blackman on Whether the Compact Clause Requires Presentment
Michael Ramsey

At Josh Blackman's Blog, Josh Blackman: Does the Compact Clause Require Presentment? Here is an excerpt: 

The Compact Clause of Article I, Section 10 provides:

No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.

As a purely textual matter, it would not seem that the President must sign an interstate compact for it to be effective. The states only need the consent of Congress, which includes both houses. This is contrasted with the Article I, Section 7 presentment clause:

Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States.

“Every bill” that passes both houses must be signed by the President to take the force of law. It is not clear that a “compact” is a “bill,” though it would seem to be some species of federal law for purposes of the Supremacy Clause.  Also, the phrase “Consent,” is quite different from “passed.” In other words “pass[ing]” a “Bill” seems quite different from providing “Consent” for a “Compact.” As a mater of text, I’m not sure if Presentment is necessary.

Erwin Chemerinsky on Objective Judging
Michael Ramsey

At Constitution Daily, Erwin Chemerinsky: There is No Such Thing as Objective Judging. Here is an excerpt: 

There is no such thing as objective constitutional law, or objective law in any area. Supreme Court justices inevitably must make value choices in deciding cases, and these decisions inherently are a product of their life experiences and views.

Inescapably, constitutional law involves the balancing of competing interests, and there is no “objective” way to do this. It is why a conservative, like Antonin Scalia, and a liberal, like Ruth Bader Ginsburg, will so often disagree even though they are equally smart, conscientious, and knowledgeable. No constitutional rights, not even the prohibition of racial discrimination, are absolute. Courts constantly must decide if there is a compelling or at least a legitimate government interest that justifies infringing a right or discriminating.

Is the government’s interest in protecting children sufficient to justify a law that prohibits minors under 18 from buying or renting violent video games without parental consent? Does the desire to protect the privacy and sensibility of those grieving justify forbidding offensive protests at the funerals of those who died in military service? Does the government have a compelling interest in diversity in the classroom sufficient to permit affirmative action by colleges and universities? Do laws that discriminate against gays and lesbians by denying them the right to marry advance any legitimate government interest?


Another Argument for Originalism
Mike Rappaport

In the past, I have noted that there are three main arguments for originalism: 1. Originalism as an interpretive theory (the most accurate meaning of the original document); 2. Originalism as a normative theory (the most normatively desirable interpretation of the Constitution); and 3. Originalism as positivism (the original meaning is the law).

Here I want to explore a type of theory that intersects between the second and third categories: a theory that views the original meaning as the law, not based on positivism, but based on a normative or idealized conception of the law.

If one looks back at some of the old originalist theories, I think it is possible to read them as adopting an idealized conception of the law.  The law is not what the rule of recognition requires, as in the positivist theory.  Nor is the law what would lead to the best results in general, as some versions of the normative theory hold.  Instead, the law is determined through an idealized conception of the law.

Consider this statement by Robert Bork in The Tempting of America:

“When we speak of ‘law,’ we ordinarily refer to a rule that we have no right to change except through prescribed procedures. . . . Statutes, we agree, may be changed by amendment or repeal.  The Constitution may be changed by amendment pursuant to the procedures set out in article V.  It is a necessary implication of the prescribed procedures that neither statute nor Constitution should be changed by judges.  Though  that has been done often enough, it is in no sense proper.”

How are we to understand Bork’s argument here?  One might see it as a claim about what the law is in a positivist sense.  The rule of recognition allows changes in the law only through these prescribed procedures.

But this argument is a bit peculiar.  What about changes in the common law?  This occurs through judges.  Perhaps Bork would say that judges are allowed to change the common law – this is a prescribed procedure.  But if judges can change the common law, then why can’t they change constitutional and statutory law?  Presumably, Bork would say that written law can only be changed by the same lawgiver who enacted them.  But why?  Who says so?

Bork does not explain his argument, but one might develop it.  Bork might argue that law ought to be determined in this way – as based on the enacted written text – because that is the best understanding of law.  In other words, this is how law should function.  It is an idealized conception – a kind of natural law, if you will – but one that looks to the lawgiver as the source of norms.  While no one can know for sure, this may have been Bork’s underlying view.  And I believe it is a premise of many people’s intuitive originalist beliefs.

Jeremy Christiansen: Returning to the Original Meaning of State Prohibitions on Unreasonable Searches and Seizures
Michael Ramsey

Jeremy Christiansen (Independent) has posted Returning to the Original Meaning of State Prohibitions on Unreasonable Searches and Seizures on SSRN. Here is the abstract: 

All fifty states have search and seizure provisions in their state constitutions. And the overwhelming majority of those states have opted to interpret those provisions as including an exclusionary rule, similar to the Fourth Amendment. The problem with this approach is that it functionally excises law-abiding citizens from constitutional protection because if there is nothing to exclude there is no remedy. And where there is no remedy, there is no right. This Article will set out to provide a solution to this problem from the perspective of originalism.

Part I will first set the stage by contending that originalism is a pervasive and main-stream method of state constitutional interpretation. Nearly every state regularly invokes some iteration of originalism currently and has done so for at least 100 years. This prevalence of originalism in state constitutional interpretation provides a solid precedential platform for returning to the original meaning of search and seizure provisions.

Part II will then seek to apply originalism to uncover the original meaning of state search and seizure provisions. First, Parts II.A, B, and C will discuss how the text and structure of these provisions, along with the constitutional convention debates that accompanied their adoption, point to a nearly uniform original meaning, despite temporal and geographical distance between the various ratifications of these provisions. And the meaning this analysis leads to is that these provisions were not understood to incorporate an exclusionary rule, but were seen as a self-executing, constitutional tort. Part II.D will then examine the prevalent themes in case law discussing the tort of illegal search against both private parties and police officers, concluding that at their core, search and seizure provisions protect the people’s interests in their property, privacy, dignity, and reputation. Violations of these rights would result in the awarding of civil damages, including punitive damages where warranted.

Part III will address various critiques of the outcomes described in this Article and provide responses to those critiques. 

Part IV will then conclude.


Steven Menashi & Judge Douglas Ginsburg: Rational Basis With Economic Bite
Michael Ramsey

Steven Menashi (New York University School of Law) and Judge Douglas Ginsburg (U.S. Court of Appeals for the District of Columbia Circuit ; George Mason University School of Law) have posted Rational Basis With Economic Bite (NYU Journal of Law & Liberty, Vol. 8, No. 3, p. 1055, 2014) on SSRN. Here is the abstract: 

In The Classical Liberal Constitution, Richard Epstein argues that the normative theory of classical liberalism underlies the Constitution and gives life to its guarantees; many constitutional guarantees have been undermined, however, by unduly deferential judicial review that is satisfied if there is a "rational basis," real or hypothetical, for a law. Yet even the rational basis standard asks whether a law serves a legitimate government purpose, which entails normative assumptions about the ends a government may permissibly pursue. Before the New Deal, the Supreme Court applied a form of rationality review that was deferential but not toothless because the Court had a stronger sense of the proper scope of the police power. The contemporary Court applies more searching "rational basis with bite" but only where it thinks impermissible purposes are at play, particularly where legislation appears to target a vulnerable group. Rational basis review, therefore, is variable depending upon the Court's normative frame. 

Recently, three circuit courts applying rational basis review have held licensing laws that restrict entry into a field of economic activity are unconstitutional. These circuits have concluded that a state's purpose to protect an interest group from economic competition is illegitimate — and have struck down licensing regulations that served no other purpose. This application of "rational basis with bite" to protect economic rights suggests another normative shift, one involving public disapproval of rent-seeking and special-interest legislation. In the nearly 60 years since the Court adopted its stance of extreme deference to economic legislation in Lee Optical, a deregulation movement has focused attention on the costs of excessive regulation and public choice theory has undermined the confidence expressed by the Court in Carolene Products that democratic political processes will protect the public from undesirable legislation. The occupational licensing laws invalidated in the circuit cases are precisely the sort of special-interest legislation that the political process is unlikely to screen out. Thus, even the modern concern with "clearing the channels of political change" suggests that heightened judicial scrutiny is warranted. Epstein connects that concern with the Madisonian focus on the problem of faction. His discussion suggests other types of economic legislation should be subject to judicial review using the "rational basis with bite" standard.


Dale Carpenter on Originalism and Same-Sex Marriage
Michael Ramsey

At Volokh Conspiracy, Dale Carpenter: Inverted equal protection: same-sex marriage at the Sixth Circuit (Part I, originalism).  It's a long, thoughtful discussion of originalism and same-sex marriage, critiquing Judge Sutton's approach in the Sixth Circuit opinion.  From the core of the argument:

Principles-based originalism has been used in equal-protection doctrine to enforce the larger principles embodied in the text–like abolishing caste-creating laws and prohibiting discrimination against a group for invidious reasons unrelated to their own merits, that is, failing to treat them like “any person” who possesses equal worth and dignity. The Equal Protection Clause is a self-conscious repudiation of exclusion and hierarchy supported by nothing more than ancient practice. It demands reasons. And what counts as legitimate and sufficiently rational reasons evolves over time, as it has in every area of equal protection. How to reconcile the need to resist “anything goes” in equal-protection cases with the doctrine’s undoubted reliance on a broader principles-based originalism is a genuine problem. But DeBoer does not even acknowledge, much less grapple with it.

In fact, there are originalist-oriented arguments in favor of a constitutional right to same-sex marriage, as Ilya notes, including a recent article by Federalist Society co-founder Steve Calabresi. I don’t evaluate those arguments here, although suffice it to say that originalist arguments can be used plausibly and have been used in fact to reach results that would never have been anticipated by the authors of the amendment. Judge Sutton’s opinion simply does not engage the issue at the level of originalist principle. His originalist analysis is incomplete and selective.

The Sixth Annual Originalism Works-in-Progress Conference
Mike Rappaport

Every February, the Center for the Study of Constitutional Originalism at the University of San Diego holds the annual Hugh and Hazel Darling Works-in-Progress Conference.  The conference brings together many of the leading originalist scholars, both advocates and critics of originalism.  This year’s conference – the Sixth – is being held on February 20-21 at the University of San Diego.  Here is the line up of paper presenters and commentators:

In addition to paper authors and commentators, the Center invites all scholars who do work on originalism to attend and participate in the conference by reading the papers and joining in the discussion.  Each year, various leading scholars of originalism attend the conference in this capacity, significantly enhancing the level of discussion through their participation.

For last year’s conference, including a video of the proceedings, see here.