Richard Samuelson on Executive Power
Michael Ramsey

At Liberty Law Blog, Richard Samuelson: Entropy in the Executive.  From the conclusion:

It is, however, an open question whether a government as big as as ours can at this point stay a limited constitutional government. Must contemporary “big government,” to use our shorthand term for it, be arbitrary government? Madison worried that it would be, as he noted in a passage I quoted in this space recently.  It bears re-quoting in the current context:

In proportion as the objects of legislative care might be multiplied, would the time allowed for each be diminished, and the difficulty of providing uniform and particular regulations for all be increased. From these sources would necessarily ensue a greater latitude to the agency of that department which is always in existence, and which could best mould regulations of a general nature so as to suit them to the diversity of particular situations. And it is in this latitude, as a supplement to the deficiency of the laws, that the degree of Executive prerogative materially consists.

Madison may not have been entirely correct. It might be possible, in some ways, to expand the job of government in a manner consistent with the separation of powers. But that line probably does not go all that far. There is one particular concern to keep in mind. Human beings are creatures of habit, as are our politicians. An executive that grows accustomed to having a great deal of discretion in writing and implementing the laws that Congress passes will, almost certainly, come to think his job is to exercise discretion in general, even in cases where the law is quite clear or where there is no law giving him any authority to act.

Given that the kind of person who is likely to become President is not likely to be the kind of person who likes to think of himself as the employee of anyone, much less of the common people of the United States, the growth of administrative discretion is a grave danger to the separation of power and hence to the cause of republican self-government.


Suja Thomas on the Seventh Amendment and the States
Michael Ramsey

Suja Thomas (Illinois) has some interesting thoughts at Volokh Conspiracy on a recent decision in Puerto Rico.  Excerpts:

Should juries decide civil cases in state, commonwealth, and territory courts? According to a federal judge in the Gonzalez-Oyarzun v. Carribean City Builders case, the answer is yes.


Following McDonald, this summer, a judge in the federal district court of Puerto Rico [in the Gonzalez-Oyarsun case] found that the Seventh Amendment applies to the states. In the case, the plaintiff sued for age discrimination and retaliation in the federal court. The defendant moved to dismiss on several grounds including that a termination agreement required the plaintiff to bring the case in a Puerto Rico court. The plaintiff argued that this forum selection clause was invalid, because Puerto Rico does not permit jury trials in civil cases (whereas jury trials are available in the federal courts), which violated his Seventh Amendment right. While the court held that the clause was valid, it cited my article Nonincorporation and adopted its reasoning that the civil jury right was a fundamental right. Thus, according to the judge, the Seventh Amendment applied to the states.

That seems likely correct as a matter of original meaning.  As Professor Thomas outlines:

I have written that significant evidence from England at the time of the adoption of the Constitution, at the time of the founding of the Constitution, and at the ratification of the Fourteenth Amendment showed a civil jury was a fundamental right, and as a result, the Seventh Amendment should apply against the states. For example, Blackstone wrote that “[i]n magna carta [trial by jury] is more than once insisted on as the principal of our liberties; but especially . . . that no freeman shall be hurt in either his person or property” without trial by jury. And the founders quoted Blackstone on the general importance of the jury to protect property, liberty, and life. Moreover, evidence that the civil jury right was fundamental includes that many states had the civil jury right at the time of the founding and at the time of the ratification of the Fourteenth Amendment.


Are the Strikes on ISIS Unconstitutional?
Michael Ramsey

I see this as a very difficult question.  I start from the premise that the declare war clause gives Congress exclusive power to decide whether the United States will initiate war (although that power is delegable to the President).  Applying this rule to the situation in Iraq is, to say the least, tricky.  At least 5 questions must be answered:

(1) Can the U.S. be at war with ISIS?  That is, is ISIS enough of a state-like entity that engaging it militarily is a "war" in the constitutional sense?  I would think that helping an ally suppress rebel groups within its borders is often not a war, because the rebel groups are too unstable and disorganized to look anything like an entity that could be one side of a war.  On the other hand, I assume that an entity need not be a "state" in the formal modern international law definition in order to be part of a war.  (Attacking Hamas in support of Israel, for example, would seem to initiate a war with Hamas, even if Hamas is technically not a state).

(2) If the U.S. can be at war with ISIS, is the U.S. at war with ISIS?  Perhaps infrequent and defensive airstrikes, designed to protect U.S. personnel in Erbil and/or to assist evacuation of civilians but not to fundamentally threaten ISIS's control of its territory or its military power does not count as warfare.  (In contrast, the 2011 Libya campaign, designed at minimum to prevent the Libyan government from using military power to destroy opposing forces, and apparently more broadly to assist in driving it from power, should count).  To be sure, it's not clear that the U.S. operation against ISIS is so limited.

(3) If the U.S. is at war with ISIS, is this a new war?  Perhaps the ISIS conflict is just the latest iteration of the conflict with Sunni extremists that the U.S. fought in 2007-08.  If so, it's an extension of the prior, congressional authorized conflict in Iraq, and therefore does not need any further authorization.  (See also # 5(a) below, although these are not exactly the same questions).

(4)  If this is a new war, did the U.S. start it?  Here the key question is not who started the shooting, but who first showed a determination to settle differences between ISIS and the U.S. by force?  Perhaps ISIS initiated a state of war with the U.S. by making bellicose statements such as (apparently) saying it would plant its flag on the White House.  In my view (and Alexander Hamilton's), when another country begins a war with the United States, the President does not need Congress' approval to respond.

(5) If the U.S. started a war with ISIS, did the President acting without Congress' approval? (a) Perhaps authority comes from the authorization to use force in Iraq, which is not limited to any particular adversary or time period (and which apparently allowed the U.S. to fight a previous round of battles against Sunni rebels in western Iraq) -- Jack GOldsmith makes the argument here.  (b) Perhaps authority comes from the authorization to use force against al Qaeda and its supporters, since ISIS (maybe) started as an al Qaeda off-shoot.  (Also (c), perhaps authority comes from the war powers resolution, although I discount that argument).

Each of these questions must be answered "yes" to make the President's action unconstitutional.  I am not confident about the answers to any of them.

Michael Coenen on Jefferson's Proposed Solution to the "Dead Hand" Problem
Michael Ramsey

At Concurring Opinions, Michael Coenen: On Jefferson’s Proposed Solution to the “Dead Hand” Problem (and the Futility Thereof).  An excerpt: 

Thomas Jefferson once opined to his friend James Madison that “the earth belongs in usufruct to the living” and “the dead have neither powers nor rights over it.”  These observations underlie the so-called “dead hand” problem of constitutional theory.  The problem is this:  Why should we the living generation of the present be governed by the constitutional dictates of dead people from the past? What gives those people the authority to rule us from the grave?

To Jefferson, these questions were unanswerable: The dead, on his view, had no right to rule from the grave, which in turn meant that “no society can make a perpetual constitution, or even a perpetual law.” But that conclusion raised a further question of its own: namely, how should we the people of the present design a constitutional system that defuses the threat of dead-hand rule down the road.  Jefferson’s answer was simple: Require that “every constitution . . . , and every law, expire after 19 years,” at which point the new generation of the living would acquire the prerogative to choose a new constitutional system for itself.


What Constitutional Obligations Does Congress Have?
Michael Ramsey

Josh Blackman comments on this post:

I agree entirely with you about the scope of Congress's duties--they have no affirmative obligation to pass any laws, or confirm any nominees, or really do just about anything for the other branches. The best I could come up with, is that they have to pay salaries to the President and Federal Judges, and perhaps have to receive the state of the union address.
I address just this point in my article [Gridlock and Executive Power]:
The President has a constitutional duty to “take care that the laws [are] faithfully executed,” but the Congress has no similar duty to “faithfully enact” laws. Rather “Congress shall have the power” to make a number of laws, but need not do so. In fact, the Constitution is entirely silent about any obligation of Congress to exercise its Article I powers. Congress’s affirmative duties towards the other branches are limited to providing compensation for the President and federal judges—these commands appear in Article II and Article III, respectively, not Article I. Likewise, while the President has the duty to appoint officials—he “shall nominate” executive branch officials—the Senate’s role is limited to “Advise and Consent,” which need not be given at all. When Congress refuses to pass laws the executive desires, or confirm nominees the President selects, we have in the words of Justice Breyer, “a political, not a constitutional problem.”

Agreed.  I took another look at Congress' legislative duties & could only come up with one clear additional one: arranging for the census.  (Article I, Section 2: "The actual Enumeration shall be made within three Years after the first Meeting of teh Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they [Congress] shall by Law direct.").  Also per the guarantee clause of Article IV, "[t]he United States shall guarantee" each state a republican form of government, which probably imposes a duty on Congress.  (Article I, Section 4 also requires Congress to "assemble at least once in every Year," though this does not require any legislation).  All in all, though, it is notable how few obligations the Constitution imposes on Congress -- almost every clause relating to Congress grants a discretionary power, not a duty.

More from Professor Blackman here (commenting on this further post by Eric Posner). 

Originalism and Current Practices
Mike Rappaport

With a view towards President Obama’s military actions against ISIS, Mike Ramsey has a good post on whether the significant limits imposed by the Constitution’s original meaning on the President’s power to initiate hostilities operate to place inconvenient constraints on the US’s ability to take desirable actions. Mike concludes that the original meaning’s constraints, while considerable, would still allow the US significant ability to take action.

Mike writes that the President: “has independent power to respond to attacks . . . on the United States”; to “deply troops to defensive positions in support of an ally” (and to respond if those troops are attacked); and to “transfer weapons and supplies to allied forces” (which in my opinion should have been done a long time ago).

He also writes: “Congress can delegate to the President the power to use force if the President thinks necessary” and therefore “Congress could have (and probably should have) delegated to the President temporary authority to deal militarily with ISIS prior to leaving on vacation.” And finally the Constitution allows the President to call the Congress into session, which with modern transportation, would allow quick action.

I think there is an important point here about how to apply the original meaning to the present world.  In a world governed by the original meaning – where both the President and the Congress understand the original meaning and follow it – practices and institutions can be developed that allow for a workable government that conforms to the original meaning.  By contrast, if one simply imagines applying the original meaning to our existing world, which does not have those understandings or practices, the original meaning may seem burdensome.

For example, if the Congress really believed that the President could not and would not act against ISIS without authorization, it could have and would have delegated to him authority to act before leaving on vacation.  Similarly, if the Congress refused to provide such authority to the President, then he could still provide arms to the Kurds, which would not require congressional authorization.

The basic point is that people often dismiss the original meaning as impractical or undesirable because it does not coordinate well with current practices.  But that is because current practices have been developed in response to nonoriginalist rules of law.  If the original meaning were accepted – or required by the courts or some other entity – then the practices would adapt.

(Cross posted at the Liberty Law Blog)

Philip Hamburger: Deference to Administrative Interpretation
Michael Ramsey

Philip Hamburger (Columbia University - Law School) has posted Deference to Administrative Interpretation: The Unasked Questions on SSRN. Here is the abstract: 

The key questions about judicial deference to administrative interpretation have not yet been asked, let alone answered. Under cases such as Mead, Chevron, and Arlington, judges must “respect” or otherwise “defer” to agency interpretations of ambiguous authorizing statutes. The Supreme Court and myriad scholars justify this deference by asking whether an agency has statutory authorization to interpret. There remain, however, two constitutional questions about the role of the judges.     

First, under the Constitution, the judges have an office or duty to exercise their own independent judgment about what the law is, and it therefore must be asked how the judges can defer to the interpretation or judgment of executive or other agencies about what the law is. In respecting or otherwise deferring to agency judgments, the judges are abandoning their duty--indeed, their very office--of independent judgment. 

Second, under the Fifth Amendment, parties have a right to the due process of law, and it therefore must be asked whether judicial deference is really systematic bias for one party and against others. The judges respect or otherwise defer to agencies’ interpretations of statutes, and they thereby typically are favoring the interpretation or legal position of one of the parties in their cases. They thus are engaging in systematic bias in favor of the government and against other parties in violation of the due process of law.

Even where agencies have authorization to interpret for their purposes, this statutory authority cannot put to rest the constitutional questions about the judges. The statutory authority for agencies cannot excuse the judges from their constitutional duty to exercise their own independent judgment about the law; nor can it brush aside the constitutional right of parties not to be subjected to systematic bias.


The Washington Post (and Josh Blackman and others) on Executive Power
Michael Ramsey

The Washington Post Editorial Board: Frustration over stalled immigration action doesn’t mean Obama can act unilaterally.  From the conclusion:

The right response to the collapse of the U.S. immigration system is for Congress to fix the law. The House had a vehicle to do just that by taking up the legislation passed by the Senate last year. But it does not follow that Congress can be ignored based on its failure to act. The right response to lawmakers who won’t solve the immigration mess is to replace them with ones who will.

Via Josh Blackman, who outlines his views here.  Also via Josh Blackman, at Slate, Reihan Salam: Gridlock is Good --  When House Republicans stand in the way of President Obama, it means they’re taking their constitutional duties seriously.

And a further related post from Josh Blackman: 1992 OLC Memo: President, In Face of Senate Filibuster, Should Not Use Unilateral Authority to Change Unambiguous Law.

In the New Republic, Eric Posner has a somewhat contrary view: Obama Is Legally Allowed to Enforce—or Not Enforce—the Law -- with which, surprisingly, I agree a good bit (more on that later).  But there's this:

If Congress cannot pass any laws because of gridlock, then it has violated its obligations under the Constitution, and accordingly the president has the right to use his enforcement powers to implement policies that serve the public interest. 

Wrong.  Congress has no "obligations under the Constitution" to pass laws (subject perhaps to a few specific exceptions that aren't relevant to immigration or anything else that Professor Posner is talking about).  Congress has the power to pass laws.  But it also has the power to decide not to pass laws.  That Congress fails to pass laws that President Obama or Eric Posner thinks are needful only proves that Congress has a different view, not that something subtlely unconstitutional, justifying extra-constitutional solutions, is afoot. 


Gary Lawson: The Unsavory Origins of Administrative Law
Michael Ramsey

Gary Lawson (Boston University School of Law) has posted The Return of the King: The Unsavory Origins of Administrative Law (Texas Law Review, Forthcoming) on SSRN.  Here is the abstract:

Philip Hamburger's Is Administrative Law Unlawful? is a truly brilliant and important book. In a prodigious feat of scholarship, Professor Hamburger uncovers the British and civil law antecedents of modern American administrative law, is really just the most recent That problem is the problem of power: its temptations, its dangers, and its tendency to corrupt. Administrative law, contemporary toward consolidated It represents precisely the forms of both in general and as was designed to prevent. Accordingly, virtually every aspect of modern administrative law directly challenges the Constitution.

This extraordinary book will be immensely valuable to anyone interested in public law. My comments here concern two relatively minor points that call for more clarification. First, Professor Hamburger does not clearly identify what in violation ” There is evidence that Professor Hamburger means something more than the former, but it is not clear what more is intended. In order to gauge the real status of administrative law, we must have a more direct conception of law than Professor Hamburger provides.

Second, much of Professor Hamburger’s historical and constitutional analysis focuses on the subdelegation of legislative authority. While his discussion contains numerous profound insights, including some that require correction in my own prior scholarship on the subject, it does not discuss how to distinguish interpretation by judicial and executive actors from lawmaking by those actors. Presumably, the prohibition on subdelegation of legislative authority prohibits only the latter. Figuring out where interpretation ends and lawmaking begins is one of the most difficult questions in all of jurisprudence, and I am not convinced that Professor Hamburger can successfully perform an end-run around it.

But these are modest nitpicks about a path-breaking work that should keep people of all different persuasions engaged and occupied for quite some time.

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


More from Ilya Somin on ISIS and War Powers
Michael Ramsey

At Volokh Conspiracy, Ilya Somin: Does the need for swift action in a crisis justify presidential initiation of war without congressional authorization? (commenting on this post).