Shoba Sivaprasad Wadhia: The History of Prosecutorial Discretion in Immigration Law
Michael Ramsey

Shoba Sivaprasad Wadhia (Penn State Law) has posted The History of Prosecutorial Discretion in Immigration Law (American University Law Review, Vol. 64, 2015) on SSRN.  Here is the abstract:

This Article describes the historical role of prosecutorial discretion in immigration law and connects this history to select executive actions announced by President Obama on November 20, 2014.


"Oh, well, we know better."
Chris Green

My contribution to the SCOTUSblog symposium on Obergefell is now posted, with a title from Justice Kennedy's comment at oral argument. Most of the content will probably surprise few readers of this blog, but I do work in references to Toy Story 2 and Apocalypse Now, leaving Pride & Prejudice on the cutting room floor.

Statutory Originalism in King v. Burwell
Michael Ramsey

Without getting into the merits of the majority opinion in King v. Burwell, I just want to note that methodologically it is both textualist and originalist.  The key sections are Parts II.A. and B.  In Part II.A., the majority looks closely at various textual provisions which (it says) raise doubt about whether the key phrase "an exchange established by a state" really means what it appears to mean.  Then, after concluding (mainly on the basis of the text) that the key phrase is ambiguous, Part II.B turns to the majority's understanding of the intent of the enacting Congress in order to resolve the ambiguity.

Here is some of the key language:

Here, the statutory scheme compels us to reject petitioners’ interpretation because it would destabilize the individual insurance market in any State with a Federal Exchange, and likely create the very “death spirals” that Congress designed the Act to avoid. See New York State Dept. of Social Servs. v. Dublino, 413 U. S. 405, 419–420 (1973) (“We cannot interpret federal statutes to negate their own stated purposes.”).

As discussed above, Congress based the Affordable Care Act on three major reforms: first, the guaranteed issue and community rating requirements; second, a requirement that individuals maintain health insurance coverage or make a payment to the IRS; and third, the tax credits for individuals with household incomes between 100 percent and 400 percent of the federal poverty line. In a State that establishes its own Exchange, these three reforms work together to expand insurance coverage. …

Under petitioners’ reading, however, the Act would operate quite differently in a State with a Federal Exchange. As they see it, one of the Act’s three major reforms—the tax credits—would not apply. And a second major reform—the coverage requirement—would not apply in a meaningful way. …

It is implausible that Congress meant the Act to operate in this manner. See National Federation of Independent Business v. Sebelius, 567 U. S. ___, ___ (2012) (SCALIA, KENNEDY, THOMAS, and ALITO, JJ., dissenting) (slip op., at 60) (“Without the federal subsidies . . . the exchanges would not operate as Congress intended and may not operate at all.”). Congress made the guaranteed issue and community rating requirements applicable in every in the Nation. But those requirements only work when combined with the coverage requirement and the tax credits. So it stands to reason that Congress meant for those provisions to apply in every State as well.

This is originalism: it is looking at the intent of the enactors to reach a conclusion about the original meaning of the enactment.  (Whether it is persuasive originalism I leave for another day).


Departmentalism versus Judicial Supremacy – Part IV: The Argument Based on the Constitution Being a New System
Mike Rappaport

In my last post, I noted that the advocates of departmentalism do not rely on pre-constitutional practice to found their view.  Instead, they tend to argue that the Constitution adopted a new system, one in which each of the branches is equally entitled to interpret the Constitution.

The problem with this argument is that it lacks support.  The Constitution both relied upon the preexisting English and state systems as well as establishing some innovations.  The question for departmentalists is to show that the Constitution actually adopted departmentalism.

Here is what I regard as the basic textual problem with arguing that the new system established departmentalism: the Constitution typically used terms that had their historical or common law meanings.  Thus, when the Constitution used the term “judicial power” or “executive power” it typically meant those terms to have their traditional meanings.

That does not mean that the Constitution retained the entire traditional system.  It clearly established a new system in certain ways, but it did so by changing the rules governing these entities, not by using the traditional terms in a new way.

Let me provide an example.  The Constitution diminished the powers of the President from those of the King.  But it did not do this simply assuming that the term “executive power” would have a new meaning.  Instead, it vested the executive power in the President, but then took away or constrained various powers that the King had.  So it gave the Congress the King’s power to declare war.  And it constrained the King’s unilateral power to make executive appointments by giving the President the power to appoint officers only with the consent of the Senate.  It did these things expressly rather than by assuming that readers would understand that the system had been changed.

Thus, if departmentalism were to be adopted by the Constitution, it would occur through provisions in the Constitution that would adopt it.  But I am not aware of any such provisions.

That the Constitution is the supreme law of the land and that each branch is required to follow it do not do the trick.  That the Constitution is the supreme law does not prevent courts from the obligation to follow judicial precedent if, as I have argued, precedent is either required by the Constitution or if the Constitution treats it as a matter of federal common law.  Similarly, that the Constitution requires each branch to follow it does not prevent the other branches from also having to follow judicial precedent if, as I have suggested might be true, such an obligation is either required by the Constitution or it the Constitution treats it as a matter of federal common law.

(Cross posted at the Liberty Law Blog)

Originalism and Sons of Confederate Veterans
Michael Ramsey

Candid originalists acknowledge that originalism can't give a clear answer to every case.  One that seems especially difficult: last week's Supreme Court decision in Walker v. Sons of Confederate Veterans.  The question is whether Texas can offer its citizens the opportunity (for a fee) to design their own license plates, but reserve the ability to veto designs it finds offensive (in this case, a design incorporating the confederate flag).  Justice Breyer's answer ("yes," for a 5-4 Court) has come in for some sharp criticism from across the political spectrum -- see here from Josh Blackman ["not only wrong, but dangerous"]; here from Michael Dorf ["so badly reasoned that it cannot be taken seriously"]; here from Ed Whelan ["Justice Alito's dissent strikes me as devastating"]; here from Calvin Massey ["The Court got it badly wrong."]).

I doubt originalism has anything useful to say on this issue.  Textually, the question is whether this restriction "abridg[es] the freedom of speech."  But how to assess that?  I can't think of any practice in the eighteenth or nineteenth century that's reasonably analogous.  That being so, I can't see how to answer the textual question.  We can't make any progress without knowing whether analogous practices were understood to violate the freedom of speech.  The question (from an originalist standpoint) isn't whether the practice abridges the freedom of speech in the abstract, but whether it abridges the eighteenth/nineteenth century meaning of freedom of speech.  And if there's no analogous historical practice, there's no way to assess that question.

A couple of options are then available.  We could say that this is a situation in which the original meaning "runs out" and leaves us in the "construction zone" where (apparently) judges create their own answers.  (And if that's the case, I'm not sure on what basis we can criticize judges for picking one result where we would have picked another).

Or we could impose a default rule.  For example, we could say (as I assume John McGinnis would say) that since the government action is not clearly contrary to a constitutional rule, it should be upheld.  But also, perhaps we could say that, since the First Amendment protects speech and the Texas rule appears to limit speech, the Texas rule should be invalid unless Texas can show it's allowed by the Constitution's original meaning (which Texas can't).  Thus we would face the question of how to pick among default rules.

John McGinnis would further say, I think, that originalism provides the default rule, because the presumption of constitutionality was part of the way people understood the courts' judicial power at the time.  Perhaps that's right, but it depends on proof of a common understanding that may not be possible.  And if the common understanding on this point is ambiguous or not fully developed, then what?  We would need a default rule for picking the default rule.

I don't think any of this amounts to an argument against originalism.  A common argument against originalism is that it can't give a clear answer to every question.  The response is, of course it can't.  That's not an argument against using originalism where it does give an answer.  But I'm inclined to think Walker is a case where it doesn't (and one may as well admit it).


Paying Ransoms and Presidential Enforcement Discretion
Michael Ramsey

According to CNN

The payment of ransoms to terror groups like ISIS and al Qaeda has long been tolerated, though it is technically illegal. The administration has looked the other way when families of Americans held overseas have paid ransoms.

On Wednesday, the White House will explicitly indicate that families should not fear criminal prosecution if they choose to make ransom payments. The new directive will not include a formal change to existing laws. But administration officials will state publicly, for the first time, that ransom payments will be tolerated.

This strikes me as a much better test of executive enforcement discretion than the immigration non-enforcement debate, as it's not complicated by arguable changes in legal status, conferral of benefits, etc.  As I understand it, there's a law against aiding terrorists, which is violated by (among other things) paying ransoms to terrorists; the President is now declaring categorically that as to a specified class (families of hostages paying ransoms) the law will not be enforced, I assume principally for policy reasons.  As the CNN story notes "[t]he new directive will not include a formal change to existing laws" [well, that's a relief], but the families will be assured (in a non-binding way) of non-prosecution.

Is this within the President's constitutional power?  Some of the arguments raised in the immigration non-enforcement debate seem to suggest it is: it declares (a) in advance (b) a specified category of non-enforcement, (c) mainly for policy reasons.  If the immigration non-enforcement policy is unconstitutional for these reasons, the ransom non-enforcement policy should be as well.

But I think the hostage non-enforcement policy is within the President's power.  He is not dispensing with an entire law, but only mitigating the harsh and possibly unintended effect of a law in a particular set of circumstances.  He can argue that he is "faithfully execut[ing]" the law because (in his view) Congress would not want it enforced against this group (if Congress had thought about it).  And more fundamentally this is part of the check the executive power provides on the power of Congress.  

As Madison quoted Montesquieu in Federalist 47, "When the legislative and executive powers are united in the same person or body, there can be no liberty, because apprehensions may arise lest the same monarch or senate should enact tyrannical laws to execute them in a tyrannical manner."  That is, separating the enactment and the execution preserves liberty because (among other things) the body with execution power can mitigate unjust laws.  But this check works only if the executive authority has an independent power to assess the justness of a law as applied to particular circumstances.  And I see no reason why this check can't be applied in advance by an announced policy as to a designated class.

So in this case, I would argue, if the President concludes it's unjust to enforce laws prohibiting support of terrorism against families negotiating for the return of their loved ones, then that is part of the Madisonian/Montesquieu-ian liberty-protecting separation of powers.

(On the merits, I think allowing ransom to be paid to terrorists is a terrible idea, but that's not the point).


Richard Re on the Article VI Oath
Chris Green

Richard M. Re (University of California, Los Angeles (UCLA) - School of Law) has posted Promising the Constitution, 110 Nw. U. L. Rev. __ (2016) on SSRN. The abstract:

The Constitution requires that all legislators, judges, and executive officers swear or affirm their fidelity to it. The resulting practice, often called “the oath,” has had a pervasive but underappreciated role in constitutional law. For example, the Supreme Court has variously cited the oath as a reason to invalidate statutes, or sustain them; to respect state courts, or override them; and to follow precedents, or overrule them. Meanwhile, commentators contend that the oath demands particular interpretive methods, such as originalism, or particular distributions of interpretive authority, such as departmentalism. 

This Article provides a new, philosophically grounded framework for understanding the oath, its moral content, and its implications for legal practice. In particular, the Article argues that the oath engenders a promise and so gives rise to personal moral obligations. Further, the content of each oath, like the content of everyday promises, is linked to its meaning at the time it is made. The oath accordingly provides a normative basis for officials to adhere to interpretive methods and substantive principles that are contemporaneously associated with “the Constitution.” So understood, the oath can help solve the “dead hand problem” by explaining how the people can legitimately bind their elected representatives: with each vote cast, the people today choose to be governed by oathbound officials tomorrow. On this view, constitutional duty flows from a rolling series of promises undertaken by individual officials at different times. As old officials give way to new ones, the overall constitutional order gradually evolves, with each official bound to a distinctive promise from the recent past. This process of gradual change is normally invisible because the oath also incorporates publicly recognized rules for legal change, or “change rules,” such as the Article V amendment process. As a result, the timing of an official’s oath becomes morally relevant only when a legal change has not complied with previously recognized change rules, such as in the case of a revolution. Finally, because promises, even constitutional promises, should sometimes be broken, the oath can illuminate the bounds of constitutional duty, including the role of stare decisis, and shed light on instances when the Constitution itself should be set aside.

Larry Solum at the Legal Theory Blog comments--and I quite agree--"Highly recommended. Download it while its hot!" Some quibbles, though, after the jump.

Continue reading "Richard Re on the Article VI Oath
Chris Green" »

Originalism in the Raisins Case
Michael Ramsey

A strong originalist rejection of the proposition that the takings clause protects only real property, not personal property (from Chief Justice Roberts' opinion for the Court yesterday in Horne v. Department of Agriculture):

The Takings Clause provides: “[N]or shall private property be taken for public use, without just compensation.” U. S. Const., Amdt. 5. It protects “private property” without any distinction between different types. The principle reflected in the Clause goes back at least 800 years to Magna Carta, which specifically protected agricultural crops from uncompensated takings. Clause 28 of that charter forbade any “constable or other bailiff” from taking “corn or other provisions from any one without immediately tendering money therefor, unless he can have postponement thereof by permission of the seller.” Cl. 28 (1215), in W. McKechnie, Magna Carta, A Commentary on the Great Charter of King John 329 (2d ed. 1914).

The colonists brought the principles of Magna Carta with them to the New World, including that charter’s protection against uncompensated takings of personal property. In 1641, for example, Massachusetts adopted its Body of Liberties, prohibiting “mans Cattel or goods of what kinde soever” from being “pressed or taken for any publique use or service, unlesse it be by warrant grounded upon some act of the generall Court, nor without such reasonable prices and hire as the ordinarie rates of the Countrie do afford.” Massachusetts Body of Liberties ¶8, in R. Perry, Sources of Our Liberties 149 (1978). Virginia allowed the seizure of surplus “live stock, or beef, pork, or bacon” for the military, but only upon “paying or tendering to the owner the price so estimated by the appraisers.” 1777 Va. Acts ch. XII. And South Carolina authorized the seizure of “necessaries” for public use, but provided that “said articles so seized shall be paid for agreeable to the prices such and the like articles sold for on the ninth day of October last.” 1779 S. C. Acts §4.

Given that background, it is not surprising that early Americans bridled at appropriations of their personal property during the Revolutionary War, at the hands of both sides. John Jay, for example, complained to the New York Legislature about military impressment by the Continental Army of “Horses, Teems, and Carriages,” and voiced his fear that such action by the “little Officers” of the Quartermasters Department might extend to “Blankets, Shoes, and many other articles.” A Hint to the Legislature of the State of New York (1778), in John Jay, The Making of a Revolutionary 461–463 (R. Morris ed. 1975) (emphasis deleted). The legislature took the “hint,” passing a law that, among other things, provided for compensation for the impressment of horses and carriages. 1778 N. Y. Laws ch. 29. According to the author of the first treatise on the Constitution, St. George Tucker, the Takings Clause was “probably” adopted in response to “the arbitrary and oppressive mode of obtaining supplies for the army, and other public uses, by impressment, as was too frequently practised during the revolutionary war, without any compensation whatever.” 1 Blackstone’s Commentaries, Editor’s App. 305–306 (1803).

(And congratulations to the Horne's counsel, Stanford Law Professor Michael McConnell).

UPDATE:  Josh Blackman pummels Justice Sotomayor's dissent.


Departmentalism versus Judicial Supremacy – Part III: Some Thoughts on the History
Mike Rappaport

In my previous post, I noted that any obligation of the executive and Congress to follow court precedents – either a strong judicial supremacy or a milder obligation to follow a series of court decisions – would have its source in either an interpretation of the Constitution’s judicial power or federal common law.  But that reading of the Constitution or the common law would require evidence that judicial precedents were seen as imposing such an obligation.

What then might that evidence be?  One possible source of evidence are statements made by various framers at the Philadelphia and Ratification Conventions that Randy Barnett has recently blogged about.  For example, he notes that James Wilson said:

If a law should be made inconsistent with those powers vested by this instrument in Congress, the judges, as a consequence of their independence, and the particular powers of government being defined, will declare such law to be null and void; for the power of the Constitution predominates. Any thing, therefore, that shall be enacted by Congress contrary thereto, will not have the force of law.

One might read Wilson as stating that a judicial decision declares an unconstitutional law “null and void” and therefore the executive is obligated not to enforce it.  But Wilson need not be read that way.  As Ed Whelan notes, this statement might be understood instead as stating that the executive will as a practical matter not be able to enforce laws that the courts are unwilling to apply in adjudications.What I find more persuasive is that there is very little, if any, evidence of departmentalism at the time of the Constitution.  I have not systematically investigated the law prior to the Constitution, but Joseph Story in his Commentaries claims that English law understood judicial decisions as determining the meaning of the laws.  I am not aware of anyone who has provided evidence disputing this claim.  Nor am I am aware of any contrary examples until at least the Jefferson Administration.  If these examples emerged in 1800 – and there was an earlier contrary practice – then these new examples can hardly be the original meaning.  And of course Jefferson had strong political reasons – a federalist judiciary – to invent a new justification.  Most significantly, apart from examples of nonenforcement, I am not aware of a practice of nonenforcement that has been followed during any presidency.

Of course, if the history differs from this account, that would be very important and one would want to take that into serious consideration.  But I am not aware of anyone claiming something to the contrary.

Ed Whelan does provide an apparently contrary statement from James Madison, who states “The several departments being perfectly co-ordinate by the terms of their common commission, none of them, it is evident, can pretend to an exclusive or superior right of settling the boundaries between their respective powers.”  Whelan argues “and what is the claim of judicial supremacy but a claim that the judiciary has a “superior right” to settle the boundaries governing the executive and legislative branches?”

While Madison’s quote could be interpreted as Whelan does, that is not the only interpretation.  Madison does not specifically say that the executive can ignore judicial precedents when enforcing the law.  Instead, Madison might just mean that each branch has various powers that it can use to police the boundaries of the other branch’s powers without settling the matter.  For example, a court might decide a case and then the legislature might impeach the judges for that decision.  Neither the judicial decision nor the impeachment might settle the matter.  And the norm of judicial supremacy might not extend to impeachment.

Of course, advocates of departmentalism sometimes argue that there is no principled reason why the legislature can ignore the bindingness of the judicial decision when engaging in impeachment but not in other circumstances, such as enforcement of the laws.  But that is a mistake.  The issue is not one of logical or principled distinctions.  The question is what were the norms in 1789 and it is quite likely that the legislature was not bound by the judicial precedents when making impeachment decisions.  The whole point of judicial impeachment is to check the judges.

(Cross posted at the Liberty Law Blog)

More on Originalism and Liberty
Michael Ramsey

At Liberty Law Forum, two additional responses to Ilya Somin's essay How Constitutional Originalism Promotes Liberty:

Hadley Arkes: What “Liberties” Does the Constitution Protect?

Peter Lawler: Originalism and Legislative Deliberation

Here is Professor Lawler's conclusion:

Liberty, in truth, has to be understood, even under the law, as more than the negative liberty of isolated individuals. For liberty to be sustainable, we need some shared understanding of what our freedom from political domination is for. If Americans have reasonably competing views of what marriage (or abortion) is, and if neither the Framers of 1787 nor the authors of the Fourteenth Amendment had any thought at all about making same-sex marriage (or the pro-choice position on abortion) a constitutional requirement, then liberty is best protected by legislative deliberation and compromising accommodation.

All in all, it’s fine for Somin to write to maximize his personal preference, but we have no reason to trust him that our Constitution means simply what he says he does. He should have a respected place (thanks to our Framers’ true intentions) in our complicated process of political deliberation, in which the Constitution is never simply what the Court at any particular moment says it is.