Ilya Somin Responds to Rob Natelson on Federal Immigration Power
Michael Ramsey

At Volokh Conspiracy, Ilya Somin: Congress’ power to “define and punish” violations of “the Law of Nations” does not give it authority over immigration (responding to this essay by Rob Natelson).  From the introduction:

The law of nations argument is creative. But it ultimately fares no better than more conventional rationales for a general federal power over immigration.

Eighteenth century understandings of the law of nations did indeed assume that each state has the authority to restrict the entry of aliens, largely as it sees fit. But the fact that international law recognized the exclusion of aliens as a power of sovereign states does not mean that a violation of a national law restricting migration is thereby a violation of the law of nations. Blackstone and the other eighteenth century writers cited by Natelson make the former claim, but not the latter.

And from later in the post:

A slightly different variant of the law of nations argument is that the Define and Punish Clause gives Congress the power to forbid any acts that a foreign nation has an international law obligation to prevent, such as the use of its territory to launch attacks against a neighbor.  [Editor's note:  in my view, this is a power that the clause grants.  Typically, with the exception of piracy, this is how eighteenth century commentators understood individual violations of the law of nations.]   But in the eighteenth century, and even today, states have no international law obligation to prevent the peaceful migration of their citizens to foreign nations that might wish to exclude them. For example, no serious commentator contends that Mexico’s failure to prevent migration by its citizens to the United States is a breach of its international law obligations, even if the migrants violate US immigration law.


More from Calvin TerBeek on the History of Originalism
Michael Ramsey

At the Faculty Lounge, Calvin TerBeek (guest-blogging): The Transition to Self-Conscious Originalism, 1977-1985.  From the introduction:

On December 6, 1984, then-Judge Robert Bork gave a speech to the American Enterprise Institute (AEI) calling on conservatives to combat the theory emanating from the (liberal) legal academy. “Now we need theory,” Bork stated, “theory that relates the framers’ values to today’s world . . . It is necessary to establish the proposition that the framers’ intentions with respect to freedoms are the sole legitimate premise from which constitutional analysis may proceed.”

This seems curious in light of the fact that originalists, in telling their own intellectual history, point to Robert Bork's 1971 Indiana Law Journal article as proto-originalism and Rauol Berger's 1977 Government by Judiciary as the theoretical point of congealment around original intent orignalism, the pre-cursor to original public meaning originalism. If indeed constitutional conservatives had homed in on Berger, original intent, and originalism, why would Bork be calling for more "theory" on this very point seven years after Berger's book was published?

This answer is straightforward but has been overlooked: constitutional conservatives did not immediately congeal around Berger's formulation and begin to call themselves “originalists.” In addition to the anachronism of imputing labels and motives to historical actors they would have not have recognized or accepted, it is also another data point that political scientists, historians, and legal academics have ceded this important terrain to originalists. Furthermore, it is also a small window into how ideas gain traction. In short, while Berger's book was important, digging a bit deeper shows that original intent originalism was not inevitable, but one of a few existing narrative frames for constitutional conservatives before 1985 (and perhaps even after). 

For his previous post, see here (and commentary by co-blogger Chris Green here).


Greg Weiner on Impeachment
Michael Ramsey

In the New York Times, Greg Weiner (Assumption College Political Science/Liberty Law Blog): Impeachment’s Political Heart. From the core of the argument:

Our tendency to read the impeachment power in an overly legalistic way, which is ratified by 230 years of excessive timidity about its use, obscures the political rather than juridical nature of the device. The Constitution applies presidential impeachment to “Treason, Bribery, or other high Crimes and Misdemeanors.” The famous latter phrase does not refer to offenses like burglary on the one hand or loitering on the other. If it did, impeachment would be available for casual transgressions, which no framer of the Constitution intended.

The phrase dates in American constitutionalism to the founder George Mason’s proposal to make the president liable to impeachment not just for treason and bribery — the original formulation at the Constitutional Convention — but also for what he called “maladministration.” His fellow framer James Madison objected to the vagueness of the term, so Mason substituted “high Crimes and Misdemeanors.” That phrase, in turn, is traceable to the British legal commentator William Blackstone, a contemporary who was revered in colonial America, who applied it to the “mal-administration of high officers,” among other things.

Mason’s intent was clearly to delineate a political category, something Alexander Hamilton — who did not shrink in the defense of executive power — recognized in Federalist 65, which says that impeachment applied to offenses “of a nature which may with peculiar propriety be denominated POLITICAL, as they related chiefly to injuries done immediately to the society itself.”

And in conclusion, with respect to President Trump:

The evidence should be carefully gathered, a process in which Robert S. Mueller III, acting as special counsel, will help considerably. But Mr. Mueller is no substitute for Congress’s independent responsibilities of investigation and sober evaluation. The question is by what standards they should conduct this work, and that question provides an opportunity to correct the mistaken assumption according to which presidents can forfeit the public trust only by committing what the law recognizes as a crime. That is a poor bar for a mature republic to set. It is not the one a newborn republic established.

And that is why the idea that the conversation about impeachment is simply a political persecution of a man who is technically innocent of a literal crime not only jumps the investigatory gun. It misses the constitutional point.

(Thanks to Michael Perry for the pointer).

I think it inevitable that, if there is serious discussion of impeachment, a central issue in popular commentary will be the framers' understanding of "high Crimes and Misdemeanors."  This despite repeated claims during Justice Gorsuch's confirmation that originalism is impossible or incoherent, that originalism is a fringe approach, and/or that originalism leads to such manifestly bad outcomes that it should be denounced and rejected.

RELATED:  At Bloomberg View, Noah Feldman: Trump Should Worry: Comey Memo Describes a High Crime.  Despite the title, the article is mostly a fair-minded assessment of whether the President's alleged comments to Director Comey violated statutory law or the Constitution (concluding no): 

...[T]he federal obstruction statute, 18 U.S.C. Section 1503 ... punishes anyone who “corruptly or by threats or force, or by any threatening letter or communication, influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede, the due administration of justice.”

On a close reading, this isn’t a great fit with the president asking the director of the Federal Bureau of Investigation if he can let a probe go because the target is “a good guy.” Remember, as a constitutional matter, the director of the FBI, like the attorney general and the rest of the machine of federal law enforcement, works for the president.

Although there has been a strong tradition of separating investigation and prosecution from the president -- a tradition grossly violated by Trump’s request -- it’s still just a tradition, not a legal requirement.

Thus, as a constitutional matter, Trump has the authority to propose ending an investigation. If he wanted to, Trump could just order the investigation to be brought to an end. He wouldn’t even have to exercise his pardon power, another way to put a preemptive stop to investigations. He could just direct his subordinates to cease.

To be sure, Comey probably would have resigned had this order been given. The point is that Trump could have given it, legally speaking.

Agreed.  But the Professor Feldman -- no originalist! -- goes on to say:

Impeachment is another matter. Using the presidential office to try to shut down the investigation of a senior executive official who was also a major player in the president’s campaign is an obvious and egregious abuse of power. It’s also a gross example of undermining the rule of law.

This act is exactly the kind that the Founding Fathers would have considered a “high crime.” [editor's note: in the essay, no evidence follows this assertion.]

First, no.  If anything, it is (as Professor Weiner argues) a high misdemeanor.  I'm not aware of any evidence that "crime" meant anything different in the eighteenth century than it does today -- an act contrary to law.  Since Professor Feldman spent the first two-thirds of his essay explaining (correctly in my view) that no crime could be found in these allegations, that should be an end of that.  The ambiguous word is "misdemeanors," which can mean "minor crimes" but also can mean (and could also mean in the eighteenth century) "misdeeds."  (Aside: why are nonorignalists such terrible originalists?)

Second: why does Professor Feldman care what "the Founding Fathers would have considered a 'high crime'"?   Only because he thinks (rightly) that originalist arguments carry force in this debate.


William Thro: Originalism and School Finance Litigation
Michael Ramsey

William E. Thro (General Counsel, University of Kentucky) has posted Originalism and School Finance Litigation (335 Education Law Reporter 538 (2016)) on SSRN.  Here is the abstract:

In school finance litigation, the plaintiffs claim that the state legislature has violated the State Constitution by failing to fund the public schools in an equitable or adequate manner. Although the constitutional theories seem straightforward, the judicial opinions raise complex jurisdictional, merits, and remedial questions. Moreover, despite scores of cases and a significant amount of academic commentary, “there are few certainties in the school funding litigation process.”

This uncertainty is the result of judges and attorneys asking the wrong questions. Like all constitutional litigation, a challenge to a State’s school finance system involves three fundamental questions. First, who allegedly violates the Constitution? As Rosenkranz demonstrated, answering this question tells us whether the constitutional challenge is a facial challenge to legislative authority or simply an as-applied challenge to executive enforcement of a statute. This is the question about standing and standards of proof. Second, what does the Constitution prohibit or require? Answering this question tells us how the Constitution limits the sovereign discretion of the government and what those limits mean. This is the question about constitutional meaning. Third, why is the Constitution violated or not violated? Answering this question tells us what constitutional actors must do to correct the violation or why the constitutional actors have conformed to the constitutional norms. This is the question about remedy.

I addressed the first question in a previous work and I intend to address the third question in the future, but this Article addresses the second question — what does the State Constitution require or prohibit with respect to the financing of schools? In particular, I focus on how to determine what the State Constitutions mean for school finance. My thesis is that Originalism is the best way of enforcing the constitutional limits and constraining judicial power.


University of Chicago Law Review Symposium: "Developing Best Practices for Legal Analysis"
Michael Ramsey

In the current issue of the University of Chicago Law Review, a symposium on Developing Best Practices for Legal Analysis.  Of particular originalist interest:  Lawrence B. Solum, Originalist Methodology (84 U. Chi. L. Rev. 269 (2017)).  Here is the introduction:

This Essay sketches an originalist methodology using ideas from legal theory and theoretical linguistics, including the distinctions between interpretation and construction and between semantics and pragmatics. The Essay aims to dispel a number of misconceptions about the methods used by originalists. Among these is the notion that originalists rely on dictionary definitions to determine the communicative content of the constitutional text. Although dictionaries may play some role, the better approach emphasizes primary evidence such as that provided by corpus linguistics. Another misconception is that originalists do not consider context; to the contrary, the investigation of context plays a central role in originalist methodology.

Part I of this Essay articulates a theoretical framework that draws on ideas from contemporary legal theory and linguistics. Part II investigates methods for determining the constitutional text’s semantic content. Part III turns to methods for investigating the role of context in disambiguating and enriching what would otherwise be sparse semantic meaning. Part IV describes an originalist approach to constitutional construction. The Essay concludes with a short reflection on the future of originalist methodology.

(Also available in final form on SSRN here.  This is the final version of the draft noted on this blog here.)

Other contributions to the symposium include Curtis Bradley, Doing Gloss (discussing methodology of using historical practices to interpret the Constitution) and essays on textualist/formalist statutory interpretation by Frank Easterbrook (The Absence of Method in Statutory Interpretation) and Abbe Gluck (Congress, Statutory Interpretation, and the Failure of Formalism: The CBO Canon and Other Ways That Courts Can Improve on What They Are Already Trying to Do).


Benjamin Mendelson: The Geographic Scope of the Citizenship Clause
Michael Ramsey

Recently published in the Texas Law Review, Benjamin Wallace Mendelson: Courts Have Gone off the Map: The Geographic Scope of the Citizenship Clause (95 Tex. L. Rev. 873 (2017)).  From the introduction (footnotes omitted):

… In all of the debates surrounding birthright citizenship, it appears that a small, yet critical, piece of the Citizenship Clause has been overlooked. The Clause reads: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” Few courts, however, have paused to consider what the phrase “in the United States” means because it seems so obvious. At first glance, everyone knows what that phrase must mean. We all looked up at the map of America from our desks in elementary school, the teacher pointed to the states, we memorized them, we took our exams, and that was the end of it.

Recently, however, some courts have had to consider the geographical scope of the phrase “in the United States.” They have ruled that an American military base in Germany, American Samoa, and the Philippines at the time it was a U.S. territory are not “in the United States” for the purposes of the Fourteenth Amendment. Despite the fact that where the United States ends and another sovereign begins is a serious constitutional issue and has obvious implications for the American immigration system, the Supreme Court this past term denied certiorari on this question.

This Note will argue that, from an originalist, historical perspective, all of the recent federal appellate cases interpreting the phrase “in the United States” for purposes of the Fourteenth Amendment have been incorrectly decided, and that if one wishes to stay true to the framers’ intent, the correct interpretation of that phrase is “in the dominion of the United States.” In other words, the framers of the Fourteenth Amendment would have considered anywhere that the United States exercises sovereignty to be “in the United States,” not just the fifty states and the District of Columbia. This would include U.S. territories, military bases, embassies, and other similarly situated locations.

Part I of this Note will examine the English common law idea of citizenship and show how that definition of citizenship crossed the Atlantic. Part II will discuss early interpretations of the Fourteenth Amendment and argue that it codified the citizenship ideas of the common law, specifically the geographical scope of birthright citizenship. It will further assert that early Supreme Court decisions recognized this in dicta. Finally, Part III will analyze recent federal appellate decisions that have interpreted the phrase “in the United States” and argue that those cases have been incorrectly decided from an originalist, historical perspective.

An interesting student note.  As readers of this blog know, I completely agree about American Samoa (see here).  I'm less sure about U.S. military bases abroad -- but the Note makes a good case that I think has not been made before.


John Manning and Mitchell Berman on Scalia's 'A Matter of Interpretation'
Michael Ramsey

Recently published in the Michigan Law Review, two new reviews of Justice Scalia's classic book "A Matter of Interpretation." From John Manning (Harvard): Justice Scalia and the Idea of Judicial Restraint (115 Mich. L. Rev. 747 (2017)).  From the introduction (footnotes omitted):

When one thinks about Justice Antonin Scalia’s legacy, it is tempting to focus on his role in promoting statutory textualism and constitutional originalism. He pressed these related approaches with surprising success in a legal culture that had not taken either idea all that seriously before his arrival on the Court. He accomplished this feat, in part, by developing the affirmative claim that taking the text seriously best respects the democratic process. For him, if a lawmaking body goes to the trouble of reducing its policies to writing through a carefully prescribed process, then common sense dictates that a faithful interpreter must ascertain, as accurately as possible, the meaning of the words the lawmaker has chosen.

Perhaps no less important, however, was his negative claim about appropriate limits on judicial power in our system of separated powers. Every theory of interpretation entails a theory of lawmaking and of adjudication. Justice Scalia’s was no exception. Much of his theory of adjudication built on what he took to be a constitutionally warranted view of judicial restraint. In the Tanner Lectures he published as part of A Matter of Interpretation: Federal Courts and the Law, his defense of textualism and originalism rested heavily on a critique of the “common law” mindset that he saw federal judges bringing to statutory and constitutional interpretation (pp. 3–14, 16–18, 21, 25, 28, 36, 38–39, 45–46). In this account, as in many of his most arresting opinions,7 Justice Scalia exploited an apparent cultural suspicion of judicial discretion—especially the kind that judges exercised sub rosa, as in the guise of legislative intent or living constitutionalism. If our system of government makes the democratically accountable branches primarily responsible for lawmaking, he did not want the federal judiciary to make an end run around the democratic process by exercising common law discretion “to make the law” (pp. 6, 10).

And from Mitchell Berman (Pennsylvania): The Tragedy of Justice Scalia (115 Mich. L. Rev. 783 (2017)).  From the introduction (footnotes omitted):

Given the magnitude of Scalia’s renown and the intensity of the passions he has engendered, it would be folly to advance in this space any bold new thesis on his jurisprudence or judicial legacy. My ambitions, accordingly, are less grand. They are to offer an account of his central jurisprudential claims, the arguments he marshaled, and the difficulties they encountered, in a fashion that might enable partisans on both sides of today’s legal, cultural, and political divides to see a little more clearly at least some of what their opponents see—the other side of Scalia’s legacy. I will try to accomplish that task by concentrating on his Tanner Lectures delivered at Princeton two decades ago and published, complete with scholarly comments and his response, as A Matter of Interpretation: Federal Courts and the Law. You might say that my modest goal for this twenty-year retrospective on Scalia’s best-known and most important book is to render Justice Scalia two-dimensional.

Because I will try to make a case both for what was truly great and for what was profoundly flawed about Scalia the jurist, the account that follows depicts him as a tragic figure. That is not a novel characterization. But it remains disappointingly marginal. Too often, Scalia’s critics demonize him as a simple villain, while his acolytes glorify him as a paladin without warts. These are disturbingly partial visions. Commentators who remain blind to the truths that others see vividly will never adequately understand the complex legacy of this complex man. But that is not all. Although tragedies and tragic figures abound in life, tragedy’s natural home is in the theater. Tragedies are performed for an audience. And the power, value, and meaning of tragedy “lies in its capacity to elicit the audience’s response.” Now, precisely how tragedy should affect an audience, or precisely what the audience is supposed to learn, is controversial. If theorists of tragedy agree on anything, it’s that, while a concept of tragedy has been vital in Western culture since ancient Greece, its content, assumed functions, and associated norms, have varied across time and place.8 Still, there are lessons we can learn—not only about him, but also about our own condition—by understanding Scalia in tragic terms. Or so I hope to show.


Defining Officers of the United States
Mike Rappaport

In Jennifer Mascott’s new paper, Who are the Officers of the United States?, she argues that the definition of an officer was much broader than the Buckley standard of significant authority pursuant to the laws of the United States and that it included positions with ministerial duties.  I think the evidence that the paper discusses supports this conclusion.

The common definition of office defined it broadly, as Chief Justice Marshall did in 1815, when he wrote it was “ ‘a public charge or employment,’ and he who performs the duties of the office, is an officer.  If employed on the part of the United States, he is an officer of the United States.”  This broad interpretation accorded with many statements, including those by George Mason and Gouverneur Morris that Mascott mentions (and that are referenced in a reader’s comment to my prior post).  Mascott also notes Thomas Bailey’s dictionary included more than 500 references to the term “officer” – and those references to officers “encompassed numerous record-keepers, assistants, and other officials with duties of a menial nature.”

While the fact that the definition is broader than the one Buckley employs is important, the question remains how one draws the line between an officer and a non-officer.  Although today we call the latter category an employee, Mascott notes that the Framers’ generation would not have used the term “employee.”  When they spoke of non-officers, they tended to refer to “servants or attendants.”

Mascott proposes a definition of an officer as one who enforces a statutory duty.  Even assuming this is the correct standard, this standard still requires more precision, because it is unclear what enforcement of a statutory duty is.  One might define that standard broadly to include servants on the theory that they helped implement an agency’s statutory duty and mission.  After all, if they did not, hiring them at all would presumably not be authorized.  How then to draw the line in a way that is faithful to the concepts of the Framers’ generation?

One possibility is that the Framers had a concept of distinguishing between significant and minimal authority, like Buckley’s, but that they drew the line to include as officers many more people who had ministerial duties.  That is certainly a possibility.  Under that view, we would need to know more about how to draw the line, but the positions they included and excluded from the officer category would provide helpful guidance.  Moreover, under that view, modern government workers, such as secretaries and assistants, might be excluded from being officers as not sufficiently exercising authority.

But it is not clear that is the correct way to understand the Framers’ world.  Perhaps they distinguished servants based on social understandings at the time that drew a distinction between a servant and other jobs (such as those filled by gentlemen plus other people lower in the social hierarchy) that informed the concept of an officer.  That social understanding would then be relevant to the constitutional meaning of an officer.

Under this possibility, the hardest part would be applying it to the modern day.  If the social distinction between servants and others no longer apply in our world, then it might be hard to apply it to arguably new positions such as secretaries and assistants, while remaining faithful to the concepts of the Framers world.

Rob Natelson on Congress' Immigration Power
Michael Ramsey

In The Hill, Rob Natelson (Independence Institute): The Constitution does indeed permit immigration caps as part of ‘the law of nations’.  From the introduction:

Some pro-immigration activists question whether the federal government has any constitutional power over immigration. “Where,” they ask, “is the word ‘immigration’ among the powers the Constitution grants to Congress?”

This question has embarrassed many who favor restrictions. They have cast around for answers, but by and large, their answers have been unpersuasive. For example, they have argued the Constitution granted implied power to restrict immigration because such power is core to sovereignty. They also claim immigration is within Congress’s authority to govern naturalization and regulate commerce.


As I point out in my book, The Original Constitution, both sides are missing something. They are missing the clause in the Constitution giving Congress “Power … To define and punish … Offenses against the Law of Nations.”

“The law of nations” was the usual 18th-century term for international law. It included standards of conduct among nations. But it also encompassed some rules within national boundaries. A power to “define and punish” an “offense against the law of nations” included protecting foreign ambassadors against interference, protecting safe-conduct passes — and restricting immigration.

Why have so many writers — including some constitutional law professors — missed this? One reason is that 18th-century legal terms and categories were different from those we use today. For example, a modern law book might feature a heading for “immigration law.” But in William Blackstone’s "Commentaries," the English book that served as America’s most popular legal treatise, there was no such heading. 

Instead, Blackstone addressed the topic in his chapter on the British king’s prerogative powers. When discussing safe-conduct passes, Blackstone observed that without them “by the law of nations no member of one society has a right to intrude into another ... [I]t is left in the power of all states, to take such measures about the admission of strangers, as they deem convenient.” ....


Evan Bernick: Is Judicial Deference to Agency Fact-Finding Unlawful?
Michael Ramsey

Evan D. Bernick (Georgetown University Law Center) has posted Is Judicial Deference to Agency Fact-Finding Unlawful? (Georgetown Journal of Law & Public Policy, forthcoming) on SSRN.  Here is the abstract:

Judicial deference to fact-finding by federal administrative agencies took root and developed alongside the modern administrative state. This fact deference is of great consequence to people who are charged with regulatory violations by agencies. Such violations are often initially adjudicated, not in federal courts by Article III judges, but in administrative proceedings by employees of the agency that is seeking to impose fines or other penalties. While review can later be sought in federal court, judges broadly defer to the factual findings made by agency adjudicators in the course of administrative proceedings—and those findings can be determinative of whether a regulatory violation has taken place. Although fact deference was initially constructed by the Supreme Court, it now has the express command of the Administrative Procedure Act of 1946 (APA) behind it. Section 706 (2)(E) of the APA provides that fact-finding in formal administrative adjudication may be overturned by reviewing courts only if an agency’s factual determinations are found to be “unsupported by substantial evidence."

Yet, although longstanding administrative law doctrines that command judges to defer to agency interpretations of statutes and regulations have received intense academic and judicial scrutiny in recent years, fact deference has received comparatively little attention. This Article provides an overview of the origins, development, and present state of fact deference and subjects fact deference to a thorough constitutional critique, focusing on Article III and the Fifth Amendment's Due Process of Law Clause. It concludes that in cases involving administrative deprivations of core private rights to "life, liberty, or property," fact deference violates Article III's vesting of "[t]he judicial power" in the federal courts; constitutes an abdication of the duty of independent judgment that Article III imposes upon federal judges; and violates the Fifth Amendment by denying litigants “due process of law,” which requires (1) judicial proceedings in an Article III court prior to any individualized deprivation of “life, liberty, or property”; and (2) fact-finding by independent, impartial fact-finders. It then proposes an alternative: de novo determination of questions of fact in Article III courts prior to any binding judgment that deprives people of core private rights.