John Harrison: Legislative Power, Executive Duty, and Legislative Lawsuits
Michael Ramsey

John Harrison (University of Virginia School of Law) has posted Legislative Power, Executive Duty, and Legislative Lawsuits on SSRN. Here is the abstract: 

The Constitution does not entitle members of Congress, or the houses of Congress, as such, to judicial relief for executive failure to carry out the law properly. Nor does the Constitution empower Congress to authorize lawsuits for that purpose by legislators or legislative bodies. The argument that the Constitution itself authorizes that kind of litigation rests on an error concerning the concept of legislative power. Insofar as it creates an interest that could be injured so as to figure in a cause of action, legislative power creates an interest in the validity of legal enactments, not in compliance with them. The interest in validity is not threatened when a private person fails to comply with, or when the executive fails to carry out, a valid enactment. Because the legislative power’s operation is complete when a valid enactment is created, to enable legislators or legislative bodies to sue executive officers for failure properly to carry out the law would be to enable them to exercise or control the executive power, and so would be inconsistent with the separate vesting of the two powers. Although the federal courts have generally assessed the constitutionality of lawsuits by legislators as such under the Supreme Court’s Article III standing doctrine, the genuinely important question involves causes of action, not the authority of the federal judiciary. Legislative lawsuits to enforce the law raise questions concerning the relationship between the legislature and the executive, not the role of the federal courts in the constitutional system.


James Pfander & Daniel Birk: Article III Judicial Power, the Adverse-Party Requirement, and Non-Contentious Jurisdiction
Michael Ramsey

James Pfander (Northwestern University School of Law) and Daniel Birk (Northwestern University School of Law) have posted Article III Judicial Power, the Adverse-Party Requirement, and Non-Contentious Jurisdiction (UCD Working Papers in Law, Criminology & Socio-Legal Studies Research Paper No. 13) on SSRN. Here is the abstract: 

The jurisprudence of Article III has so far failed to confront a fundamental tension in the theory of adverse parties. On the one hand, Article III has been said to limit the federal courts to the resolution of concrete disputes between adverse parties, one of whom traces her injury to the other’s conduct. On the other hand, Congress has repeatedly conferred power on the federal courts to hear ex parte proceedings that feature no opponent at all. Such proceedings call upon the federal courts to play an inquisitorial role that seems hard to square with the nation’s commitment to an adversary system.

In this Article, we offer a catalog of ex parte proceedings and the first general theory of how those proceedings fit within our largely adversarial federal judicial system. We argue that Article III embraces two kinds of judicial power: power over disputes between adverse parties, which was known in Roman and civil law as “contentious” jurisdiction, and power over ex parte and other uncontested proceedings, which was described in Roman and civil law as voluntary or “non-contentious” jurisdiction. Non-contentious jurisdiction allows a party to seek a binding determination of a claim of right in the absence of an adverse opponent; it was incorporated into equity, admiralty, and ecclesiastical practice and promptly introduced into the federal judicial practice of the early Republic. Non-contentious jurisdiction encompasses such familiar federal proceedings as applications for naturalization, administrative proceedings in bankruptcy jurisdiction, guilty pleas and ex parte warrant applications, and inquisitorial proceedings in connection with settlement agreements and the entry of default judgments.

Apart from casting doubt on the view that Article III embeds an unyielding constitutional requirement of adverse parties, the construct of non-contentious jurisdiction requires that we rethink Article III’s case-or-controversy requirement and reconsider the injury-in-fact test of standing doctrine as well as the underpinnings of such judicial power standards as Hayburn’s Case and Tutun v. United States. Finally, by offering a theoretical account of practices that many view as aberrations in the exercise of federal judicial power, our examination of non-contentious jurisdiction better situates Article III within America’s broader legal inheritance.


Will Baude on Judicial Disagreement and Ambiguity
Michael Ramsey

At Volokh Conspiracy, Will Baude: Does judicial disagreement imply ambiguity?  From the introduction: 

Adrian Vermeule and Eric Posner have a pair of blog posts sketching out a new paper idea. Their idea is to explore the question: “Under what conditions should judges take into account the information contained in the votes of other judges?” For instance, if judges disagree over how to interpret a statute, does that mean that either interpretation is reasonable?

(My answer: no, because some judicial interpretations are not reasonable.)  Professor Baude goes on (reasonably) to say:

I’m very interested in reading what Posner and Vermeule work out about this. My own instinct is that it only makes sense for judges to take into account the votes of other judges when those other judges share relevant elements of an interpretative framework. A strong textualist’s view of the statute’s meaning is largely beside-the-point for a strong purposivist, and vice versa. Similarly, lower-court judges who approach the Anti-Terrorism and Effective Death Penalty Act in very different ways will not learn very much from one another’s votes.


Scott Gerber: Liberal Originalism
Michael Ramsey

Scott Gerber (Ohio Northern University - Pettit College of Law) has posted Liberal Originalism: The Declaration of Independence and Constitutional Interpretation (Cleveland State Law Review, Vol. 63, No. 1, 2014) on SSRN. Here is the abstract: 

This article is part of a law review symposium about "History and the Meaning of the Constitution." In the article I explain a theory of constitutional interpretation I named "liberal originalism" while I was writing my Ph.D. dissertation (later, my first book). Next, I assess the criticisms of liberal originalism, Justice Clarence Thomas's use of liberal originalism, and the reaction to Justice Thomas's liberal originalism. I conclude the article with a brief discussion of the future of liberal originalism.


Originalism in Canada: Judicial Posts for Huscroft and Miller
Michael Ramsey

Two of Canada's leading originalist scholars -- Grant Huscroft and Bradley Miller -- have been appointed to the Canadian courts in Ontario, per this report: Tories appoint two conservative law professors as judges.  Congratualations to Professors Huscoft and Miller (both of whom, I can't help adding, are past participants in the USD originalism works-in-progress conference).  They are the co-editors of the outstanding volume The Challenge of Originalism: Theories of Constitutional Interpretation (Cambridge Univ. Press 2011).

(Thanks to Larry Solum for the pointer.)

Sachs on Smith, and Balkin on Everyone
Michael Ramsey

At Liberty Law Forum, Stephen Sachs (Duke): Saving Originalism’s Soul (commenting on Steve Smith's essay Meanings or Decisions? Getting Originalism Back on Track).  From the introduction:

What shall it profit originalism, to gain academic adherents but lose its soul? As Steven Smith tells it, the “new originalism” has made a disastrous Faustian bargain, with Jack Balkin playing Mephistopheles. It may have gained sophistication and intellectual respect, but it’s lost its ability to resist falsehood and manipulation—and lost the firm roots that made “That Old-Time Originalism” great.

To Smith, the new originalism lacks any claim to the Framers’ authority. Because it looks to the meanings of the Framers’ words, and not to their substantive expectations, it can be made by skilled sophists to justify things “the enactors wouldn’t have approved—would perhaps have deplored,” like rights to abortion or to same-sex marriage. If the Framers had foreseen such consequences, their Constitution “would have been reworded to avoid the unwanted results, or would not have been enacted at all.” That makes the new originalism irrational, a product (at best) of the Framers’ “ignorance” and lack of foresight, not their “mindful deliberation.” Instead, Smith counsels a return to the “original decision,” which (he argues) rules out any deplorable consequences that the Framers would have opposed.

And in conclusion:

The soul of originalism is a method, not a collection of results. The theory is aimed at getting the law right, not at advancing any particular political platform. It rules nothing out in advance, looking to what the law and history actually reveal. This openness to potential surprises is a strength, not a weakness: it shows that the theory is robust—that it can handle a variety of different kinds of evidence.

That flexibility, it’s true, raises a risk of manipulation. Smith not-so-subtly accuses Balkin, Michael Perry, and even Robert Bork of bending the historical record to support their preferences. But he writes as if such manipulation were largely unstoppable—as if only a fundamental change in interpretive method could build a firewall strong enough to resist it. It’d be far simpler, though, to argue that the manipulators are wrong: that they misunderstand what the Framers did and what results follow therefrom. Is that not enough? And if they aren’t wrong, shouldn’t that lead Smith to reexamine his own views?

Like anything else, the new originalism can be done poorly, or even fraudulently. That doesn’t mean that we should stop doing it—any more than “junk science” should lead us to ban science, or motivated reasoning should lead us to abandon reason. Not every bargain is a Faustian one; some trade-offs really are worthwhile. In each case, we do what we can with the tools that we have. And in the end, as G.K. Chesterton put it, “if a thing is worth doing, it is worth doing badly.”

At Balkinization, Jack Balkin comments (at length, and with characteristic depth and insight) on the Smith essay and the responses from Sachs as well as those (noted here earlier) from Mike Rappaport and Will Baude.


New Book -- "Overruled: The Long War for Control of the U.S. Supreme Court" by Damon Root
Michael Ramsey

Damon Root (Reason) has this new book out: Overruled: The Long War for Control of the U.S. Supreme Court (Palgrave Macmillan 2014).  Here is the book description from Amazon: 

Should the Supreme Court defer to the will of the majority and uphold most democratically enacted laws? Or does the Constitution empower the Supreme Court to protect a broad range of individual rights from the reach of lawmakers? In this timely and provocative book, Damon Root traces the long war over judicial activism and judicial restraint from its beginnings in the bloody age of slavery, the Civil War, and Reconstruction to its central role in today’s blockbuster legal battles over gay rights, gun control, and health care reform.

It's a conflict that cuts across the political spectrum in surprising ways and makes for some unusual bedfellows. Judicial deference is not only a touchstone of the Progressive left, for example, it is also a philosophy adopted by many members of the modern right. Today’s growing camp of libertarians, however, has no patience with judicial restraint and little use for majority rule. They want the courts and judges to police the other branches of government, and expect Justices to strike down any state or federal law that infringes on their bold constitutional agenda of personal and economic freedom.

Overruled is the story of two competing visions, each one with its own take on what role the government and the courts should play in our society, a fundamental debate that goes to the very heart of our constitutional system.

With this blurb from P.J. O'Rourke:

“In Overruled, Damon Root explains a divide in judicial theory about which I was not only ignorant but mistaken. ‘Judicial activism’ is wrong.  Right? It gives unelected authorities minority power to impose rules and regulations that violate individual rights without a democratic process. Wrong. It’s ‘judicial deference’ that gives elected authorities majority power to impose rules and regulations that violate individual rights within a democratic process. And to further confuse the issue judicial activism and judicial deference have, by turns, been the darlings of both Liberals and Conservatives.  Fortunately, Damon Root explains it all.”

Ilya Somin has a generally positive review here.


Josh Blackman on Text and Enforcement Discretion (Plus Bonus Discussion of the Immigration Enforcement Ruling)
Michael Ramsey

At Josh Blackman's Blog, Josh Blackman: The Take Care Clause and Prosecutorial Discretion (continuing this discussion). Here is his core point, which I think has not been given the attention it deserves in other discussions of the issue: 

 I think there are a few textual hooks in Article II to think about. First, the President must “take care.” Second, he must do so “faithfully.” ...

... It is very true that Congress only appropriates a fraction of the amount of money necessary to enforce all drug crimes. But it does so, knowing that the threat of enforcement nationwide serves as a deterrent to committing these crimes (I’m sure there are reams of legislative history on this point). When the President categorically declines to enforce the drug laws in several states, the deterrent effect–which Congress asked the President to execute–is eliminated. Here, I don’t think it can be said the President is acting as a faithful agent of Congress. In fact, he is thwarting what Congress designed. 

So as I understand it, then, the problem is not so much that the President is refusing to enforce as to certain categories of offenders, but that he is publicly announcing that he is refusing to enforce as to certain categories of offenders.  It is the public announcement that undercuts the congressionally intended deterrence.

This is a better textual argument than I've seen elsewhere on the point.  But I'm not sure that it doesn't assume its conclusion.  That is, it assumes that Congress wants the residual threat of non-enforcement to remain.  But what if Congress assumes the President will use categorical non-enforcement to mitigate the unfairness of Congress' (poorly drafted) laws, so that Congress does not have to think too carefully about what it is doing?    Speculation about what Congress intended is a dubious move, and appeals to legislative history don't make me feel any better about it.

I continue to think it's hard to make much headway here on text alone without a historical understanding of executive non-enforcement power (which I have not conclusively investigated).

RELATED:  Professor Blackman comments here on the district court decision (sort of) finding the President's immigration non-enforcement policy unconstitutional.  

Further thoughts on the decision at Volokh Conspiracy:  Ilya Somin, A poorly reasoned federal district court opinion striking down Obama’s executive order on immigration and Orin Kerr, Unless I’m missing something, this is an exceedingly strange opinion (the latter is especially amusingly harsh).

As Professor Somin notes, the core of the court's constitutional argument is that the policy is unconstitutional because

(a) It provides for a systematic and rigid process by which a broad group of individuals will be treated differently than others based upon arbitrary classifications rather than case-by-case examination; and

(b) it allows undocumented immigrants, who fall within these broad categories, to claim substantive rights.

The first point is, I think, sort of what Professor Blackman and I have been discussing, and I'm inclined to think it is not a constitutional problem.  (Professor Somin makes some good points against the court's view in his post.)  The second point I think, if true, is a very big constitutional problem, but I'm not sure if it's true (Professor Somin thinks it's not).  I'll return to this issue later. However, it is one reason I think it more productive to discuss non-enforcement in the context of the federal marijuana laws, where this issue plainly doesn't exist.

AND MORE: Timothy Sandefur at Freespace: The President shall take care that the law be faithfully executed. Or ignore it. Whatevs. (criticizing an earlier article by Professor Somin on textual/historical grounds).


The Commerce Power and Constitutional Structure: Counterarguments
Mike Rappaport

In my prior two posts here and here, I discussed why even the narrowest view of the commerce power under modern precedents – Lopez and Morrison – is inconsistent with the constitutional structure because that view renders several other enumerated powers redundant.  Here I discuss whether there are any counterarguments to my position.

One counterargument is that redundancy is not a serious matter since the Constitution contains clear redundancies.  I disagree with this view.  The standard way of writing formal legal documents, especially short ones like the Constitution, was to avoid redundancies.  As a result, courts interpreted the document to avoid reading it to contain surplusage – including in the landmark case of Marbury v. Madison.  (On the argument for following interpretive methods at the time, see here.)

It is true that the Constitution does contain a few redundancies, such as Congress’s power to establish inferior federal courts in both Article I, section 8 and in Article III, section 1.  Sometimes one can come up with an explanation for a redundancy -- with the second provision added for clarification or as a limitation.  But if not, one must accept it as an oversight of the drafting process.  But the few redundancies that the Constitution contains should not be used as a justification for embracing redundancies or failing to regard redundancies as matters to be avoided.  That way lies clear misinterpretation.

Another counterargument is that the redundancies are the result of changed circumstances.  At the time of the Constitution, the commerce power was limited, but over time – due to the expansion of interstate commerce – the power came to be much broader.  Again, this has a grain of truth in it – interstate commerce certainly has grown since 1789.  The problem is that even under the degree of interstate commerce at the framing, the modern interpretations would still allow significant redundancies.  So long as a commercial activity had a substantial effect on interstate commerce, from an aggregation of individual actions, the activity could be regulated, and that would probably produce all of the examples of redundancies listed in my last post.

Kurt Lash: Originalism All the Way Down?
Michael Ramsey

Kurt Lash (University of Illinois College of Law) has posted Originalism All the Way Down? (Constitutional Commentary, Vol. 30, p. 149, 2014) on SSRN. Here is the abstract: 

In their new book, ORIGINALISM AND THE GOOD CONSTITUTION [Ed: Harvard Univ. Press, 2013, see here], John McGinnis and Michael Rappaport attempt to vanquish what they call constructionist originalism with an approach that I call methodist originalism. Unlike constructionist theories, which allow for non-originalist construction of underdetermined texts, methodist originalism proposes filling in the historical gaps with what McGinnis and Rappaport claim were the originally accepted methods of interpretation. This is originalism all the way down.

It’s a creative effort, and one that appropriately rejects some of the more latitudinous originalist theories currently in play. Unfortunately, the same history McGinnis and Rappaport rely upon fatally undermines their effort to associate every constitutional text with its own originally accepted method of interpretation. The Founding was a time of methodological dispute as legal theorists struggled to reconcile the content of common law with the commitments of popular sovereignty and American-style federalism. Although McGinnis and Rappaport have introduced an important consideration in determining the original meaning of constitutional texts, gaps remain in both our understanding of both original textual meaning and original interpretive methodology. The dragon of construction is not yet vanquished.