Richard Samuelson on the Halbig litigation and Chevron Deference
Micahel Ramsey

At Liberty Law Blog, Richard Samuelson (CSU San Bernardino, History): Time to Rethink the Chevron Doctrine.  An excerpt:

It is ... worth asking whether the Chevron Doctrine is itself mistaken. I would argue that it has deeply troubling implications for republican self-government. When “We the People” created the federal government, giving it certain powers, we ratified the Constitution. It established three branches of government: legislative, executive, and judicial. If the branches are to be equals, each must have an equal right to interpret the Constitution. Failing that, the branches cannot be equal. The Congress is also “the People’s House.” The legislative power is in Article 1 of the Constitution for a reason. The men who wrote and ratified it believed that the legislative branch, being closest to the people, was the most important. That being the case, it is entirely reasonable for federal courts, although  part of an equal and independent branch, to pay Congress a great deal of deference. It should presume that Congress would not intentionally violate the Constitution.


A like deference emphatically is not owed to the federal bureaucracy.  ...

... Precisely because it is problematic, from the perspective of having a government of, by, and for the people, to have our legal code written by bureaucrats, if there is a question of statutory construction, the general rule should be against the expansion of the Fourth Branch’s power. If such power is needed, then the people’s representatives can pass another law adding it.

Plus a strong response in the comments from "Grant", beginning: "While I am also troubled by the excesses of the adminsitrative state, the path that you propose is a path towards less democracy and more activism, just by a different group."

Scott Lemieux on Bruce Allen Murphy on Scalia
Michael Ramsey

Scott Lemieux (Lawyers, Guns and Money) comments (harshly) on Bruce Allen Murphy's Scalia: A Court of One: Murphy's Hamdi Botch.  From the conclusion:

[I]n an extreme form it [the error on Hamdi] illustrates why Scalia: A Court of One is a major disappointment ... [A] lot of the book is taken up with Murphy’s analysis of what Scalia contributes to the United States Reports, and this really isn’t Murphy’s strong suit. Again, the hash [Murphy] makes of Hamdi seems to be an outlier, but he’s sometimes shaky on basic concepts (“the Court defers to a state’s laws because a rational person would agree with them” isn’t really what the “rational basis” test means) and even when his doctrinal analysis is unobjectionable it’s pedestrian.

(Via Ed Whelan, who adds his thoughts here).


Zachary Clopton: State Law Litigation of International Norms
Michael Ramsey

Zachary Clopton (University of Chicago Law School) has posted two related articles on SSRN.  The first is State Law Litigation of International Norms: Horizontal and Vertical Dimensions (108 American Society of International Law Proceedings __ (2014 forthcoming)); here is the abstract:

For decades, scholars of international litigation focused their attention on the federal courts. The combination of diversity, alienage, federal question and Alien Tort Statute (ATS) jurisdiction largely justified this focus, opening multiple avenues for litigants to prosecute claims in federal courts. In recent years, however, the federal courts have closed some doors to international litigation. In response, international litigators have turned their gaze to state courts. This panel is but one example of this new direction. For an excellent earlier treatment of this topic, the U.C. Irvine Law Review published a symposium issue in 2013 dedicated to human rights litigation in state courts and under state law. [Ed.: Here is the introduction to that symposium.]

Within this new domain of U.S. states and international law, the focus justifiably has been on causes of action derived from common-law sources (whether in state or federal courts): (i) state law; (ii) foreign law, through state choice of law rules, and (iii) international law, also through state choice of law. What unites these categories is that courts are responsible for the relevant lawmaking choices. But state political branches also can engage with international norms. Examining the current and potential roles for state political branches permits an examination of doctrinal and theoretical questions in state litigation. First, I will offer some examples (real and hypothetical) of state political branch involvement. Then I will discuss two sets of inquiries in these cases: vertical debates about federal versus state actors, and horizontal debates about courts versus political branches. Third, I will discuss federal court doctrines that could limit state-level litigation, but I will do so in light of these horizontal and vertical dimensions. Finally, I will comment briefly on how state political branch involvement could play out with respect to the litigation of international norms.

The second is Executive Foreign Policy and the States: Recent Developments (111 Michigan Law Review First Impressions 28 (2012)) on SSRN. Here is the abstract:

On February 23 of this year, the Ninth Circuit Court of Appeals invalidated a California statute permitting victims of the Armenian genocide to file insurance claims, finding that the state's use of the label "Genocide" intruded on the federal government's conduct of foreign affairs. This decision, Movsesian v. Versicherung AG, addresses foreign affairs federalism — the division of authority between the states and the federal government. Just one month later, the Supreme Court weighed in on another foreign affairs issue: the separation of foreign relations powers within the federal government. In Zivotofsky v. Clinton, the Supreme Court ordered the lower courts to help referee a conflict between the executive and legislative branches of the federal government concerning how Jerusalem — born American citizens list their country of birth on their passports. The former case presented an issue of federalism and the latter an issue of separation of powers; yet both cases sought to delineate foreign affairs authority in the United States.

This Essay addresses the relationship between the states and the federal executive in foreign affairs — a federalism question — in light of coming separation-of-powers decisions. Part I briefly outlines foreign affairs federalism: how far into foreign affairs may states reach without stepping into the federal government's exclusive terrain? Part II looks at a particular permutation of this federalism debate, examining the conflict between the states and the national executive. Movsesian, the Armenian genocide case, highlights this state-executive clash. The panel and en banc opinions in Movsesian offered two different approaches to this federalism question, both of which present textual and practical difficulties. Having laid out the problems with these approaches, Part III looks for answers in an unlikely place: decisions about the separation of powers within the federal government. In Zivotofsky, the Supreme Court called for increased judicial participation in contests between Congress and the President in foreign affairs. This command will produce a body of law defining the sphere of exclusive executive authority vis-à-vis Congress. Synthesizing these decisions, Part IV argues that, for structural and pragmatic reasons, courts should bar states as well as Congress from this exclusive executive sphere. The Supreme Court has called upon the courts to articulate the boundaries of executive and legislative authority within the federal government, but in so doing, the courts indirectly will provide guidance about the division between the federal government and the states.

My take on these issues from an originalist perspective is somewhat different, see here, here and here.


Caleb Nelson: The Legitimacy of (Some) Federal Common Law
Michael Ramsey

Caleb Nelson (University of Virginia School of Law) has posted The Legitimacy of (Some) Federal Common Law (Virginia Law Review, Forthcoming) on SSRN. Here is the abstract:

Much of the modern debate over federal common law starts from the premise that when courts articulate rules of decision as a matter of unwritten law, they are "making law" in a robust, quasi-legislative sense. For people who deny that federal courts have inherent authority to invent their own rules of decision, the logical conclusion is simple: federal common law is legitimate only where the Constitution or Congress gives the federal courts a special delegation of lawmaking power.

That conclusion, however, does not fit our legal system very well. On the one hand, it may discourage courts from recognizing even widely accepted principles of common law in enclaves of federal preemption. On the other hand, the need to recognize some unwritten law in those enclaves may make judges strain to read federal statutes or constitutional provisions as implicitly delegating quasi-legislative power to the federal courts. Where federal judges think they have such power, moreover, they may end up indulging their own policy preferences at the expense of other sources of unwritten law. By the same token, the arguments advanced by some skeptics of federal common law may have the ironic effect of encouraging state judges to think that they are completely in charge of the unwritten law of their state and can legitimately articulate whatever rules they like

The root of all these problems lies in the skeptics' failure to distinguish rules of decision that courts make up out of whole cloth from rules of decision that reflect pre-existing sources (such as widespread customs or the collective thrust of precedents from the courts of the fifty states). While courts certainly shape even the latter sort of rules, and while the process by which courts do so can be described as a species of "lawmaking," it is not the type of lawmaking in which legislatures engage, and it might not require the sort of delegation that skeptics of federal common law have in mind.


James Fleming: Are We All Originalists Now? I Hope Not!
Michael Ramsey

James Fleming (Boston University - School of Law) has posted Are We All Originalists Now? I Hope Not! (91 Texas Law Review 1785 (2013)) on SSRN. Here is the abstract:

In recent years, some have asked: “Are we all originalists now?” My response is: “I hope not!” In the Article, I explain why. But first, I show that there is a trick in the question: Even to pose the question “Are we all originalists now?” suggests that one is presupposing what I shall call “the originalist premise.” To answer the question affirmatively certainly shows that one is presupposing it. The originalist premise is the assumption that originalism, rightly conceived, is the best, or indeed the only, conception of fidelity in constitutional interpretation. Put more strongly, it is the assumption that originalism, rightly conceived, has to be the best, or indeed the only, conception of constitutional interpretation. Why so? Because originalism, rightly conceived, just has to be. By definition. In the nature of things — in the nature of the Constitution, in the nature of law, in the nature of interpretation, in the nature of fidelity in constitutional interpretation! I will sketch some of the problematic assumptions underlying this premise (and thus underlying the projects of many scholars who seek to reconstruct originalism or to put forward new originalisms). Worse yet, raising the question “Are we all originalists now?” may presuppose that we all have come around to Justice Antonin Scalia’s and Robert Bork’s ways of thinking, without conceding that many versions of originalism themselves have been moving targets that have moved considerably toward the positions of their critics.

If I hope we are not all originalists now, what do I hope we (at least some of us) are? Much of the best work in constitutional theory today is not originalist in either an old or a new sense; rather, it is what I have called “constructivist.” I am interested in developing a constructivist account of the uses of history in constitutional interpretation. A constructivist world would look somewhat like the pre-originalist world (that is, the pre-Borkian world), although it would be far more sophisticated theoretically than that world was. It would treat original meaning as one source of constitutional meaning among several, not the exclusive source, let alone the exclusive legitimate theory. It would use history for what it teaches rather than for what it purportedly decides for us. In a constructivist world, we would understand that history is a jumble of open possibilities, not authoritative, determinate answers. We would understand that we — self-styled originalists no less than the rest of us — always read the past selectively, from the standpoint of the present, in anticipation of the future. We look to the past, not for authoritative answers, but for illumination about our experience and our commitments. Finally, we would understand that it dishonors the past to pretend — in the name of originalism — that it authoritatively decides questions for us, and to pretend that it avoids the burden of making normative arguments about the meaning of our commitments to abstract moral principles and ends. I argue that fidelity in interpreting the Constitution as written requires a philosophic approach to constitutional interpretation. No approach — including no version of originalism — can responsibly avoid philosophic reflection and choice in interpreting the Constitution.


Josh Blackman: State Judicial Sovereignty
Michael Ramsey

Josh Blackman (South Texas College of Law) has posted State Judicial Sovereignty on SSRN. Here is the abstract:

In our “dual sovereignty,” we have a dual judiciary. While the Constitution creates a single Supreme Court, and gives Congress the power to constitute inferior tribunals, predating our federal union were the courts of the states. Through concurrent jurisdiction, these courts, subject to the complete control of the states, were deemed parallel forums to adjudicate federal claims. Yet, in specific areas, Congress designated the federal courts as the exclusive forums of certain federal claims, depriving the state courts of that jurisdiction. In other areas, the Supreme Court has determined that state courts, with or without the consent of the state, are required to entertain certain federal causes of action.

Each of these well-known features of our judicial system — concurrent, mandatory, and exclusive jurisdiction — represents efforts by one sovereign, the federal government, to command and control the jurisdiction of another sovereign, the states. Though the power to mandate, and exclude state court jurisdiction has been construed broadly, certain limits have been placed on this authority based on a respect for the autonomy of each state to manage their courts. I refer to the basis of these constraints on federal power as state judicial sovereignty. State judicial sovereignty refers to the power of states to vest their courts with subject matter jurisdiction to hear, or not to hear, federal causes of action.

This article articulates a framework to explain how the autonomy of the states to control their own courts interacts with Congress’s efforts to use, or disregard the state courts for federal claims. Building on the analysis of concurrent, mandatory, and exclusive jurisdiction, I identify three attributes of state judicial sovereignty that are repeated throughout the Court’s precedents. First, state judge sovereignty refers to the constitutional obligations and state-law duties, of state judges with respect to federal causes of action. Second, state jurisdictional sovereignty, explains the autonomy of the states to vest their state courts with jurisdiction, subject to the strictures of the federal constitution. Third, state judge sovereignty, working under the auspices of state jurisdictional sovereignty, places a limit on the federal government’s power to regulate the state court, based on the anti-commandeering principle.

The bounds of federal authority over the way state courts conduct their business have remained undefined for over 200 years. This article aims to bring some clarity to those boundaries.


Evan Zoldan: The 'Professional' Meaning of the Ex Post Facto Clauses
Michael Ramsey

Evan Zoldan (University of Toledo College of Law) has posted The 'Professional' Meaning of the Ex Post Facto Clauses on SSRN. Here is the abstract:

Since its decision in Calder v. Bull, the Supreme Court has held consistently that the Ex Post Facto Clauses apply only to retroactive criminal, as opposed to civil, laws. Nevertheless, there continues to be significant scholarly debate over the original meaning of the clauses. Relying on sources contemporaneous with the framing of the Constitution, like treatises, newspaper articles, and notes from the debates in the Philadelphia Convention, some scholars conclude that the original meaning of the Ex Post Facto Clauses includes civil as well as criminal statutes; others, relying largely on this same evidence, conclude that the original meaning reaches only criminal statutes.

The key to resolving the dispute between these two camps of scholars lies in uncovering the “professional” meaning of the Ex Post Facto Clauses, that is, the meaning of the phrase “ex post facto” as it was used by the professional community of American judges and lawyers in the course of their work in the years leading up to the framing of the Constitution. The professional meaning of the phrase ex post facto has always been, and continues to be, the focal point for discussion of the original understanding of the Ex Post Facto Clauses; nevertheless, historical evidence of the professional meaning of the phrase ex post facto has been all but unexamined.

In this article, I seek to resolve the debate over the original understanding of the Ex Post Facto Clauses by examining undeveloped evidence of the professional meaning of the phrase ex post facto. I conclude that the professional meaning of the phrase ex post facto, and original understanding of the Ex Post Facto Clauses, includes retroactive civil, as well as criminal, laws. Finally, even leaving aside these historical arguments, the story of uncovering the professional meaning of the Ex Post Facto Clauses suggests that there are prudential, doctrinal, and structural reasons for reconsidering Calder’s limitation on the scope of the clauses.


Originalism and Positivism: The Problem of Interpretive Contestation
Mike Rappaport

I have written various posts about originalism and positivism.  Perhaps the academic who has written the most about interpretive approaches and positivism is Matt Adler from Duke, but I have relatively neglected his articles.  It is not a mistake I will make again.

I strongly recommend a recent article of his – Interpretive Contestation and Legal Correctness –that lays out the issues clearly and admirably.  In particular, the puzzle for him is how there can be law when there is significant disagreement about interpretive matters (such as the disagreement between originalism and nonoriginalism).  He explores how various theories would address the issue, including natural law theory, positivism, and Dworkin’s interpretive theory.

At the end of the article, his discussion of positivism addresses what in essence is my solution to the problem.  In my view, certain forms of originalism and nonoriginalism are now accepted as law and therefore either can be employed.  The reason is that (1) there are a significant number of people or officials who accept these interpretive methods, (2) decisions reached according to them are disagreed with but not treated as illegal, and therefore (3) the rule of recognition appears to accept both interpretive approaches.

Matt has two objections to this solution.  First, he argues that this solution means that a large number of legal cases involve indeterminacy and therefore neither the majorities in those cases nor the dissenters “were determinately legally correct.”

The question is whether this is a bug or a feature.  I share the concern that such indeterminacy is undesirable as a normative matter, but as a descriptive matter it accurately captures our constitutional practice.  It is generally recognized that hard cases go to the Supreme Court, where the court will split as to the correct resolution.  It is accepted that the Supreme Court gets to decides these cases (so long as it uses acceptable methods).  We may not like it, but that is how our system functions.  If a description of our legal system did not acknowledge this legal indeterminacy, it would be problematic.

Matt’s second objection to the solution that both originalism and nonoriginalism are allowed is that it would suggest that judges and scholars who debate interpretive methods are confused about the law.  They are “confused” because they treat their solution as the legally correct one and other side’s solution as legally incorrect, even though “no method is determinately correct.”

I don’t buy this objection either.  There is nothing problematic in different judges each believing that their view is the better view – the one more likely to be correct.  When they say it is correct, they don’t deny that others believe otherwise.  Nor are they saying that it follows clearly from accepted premises.  Instead, they believe they are correct but recognize that others have a different view (and that different view cannot be ruled out in the same way that deciding cases based on astrology would be).  It is similar to the disagreement about a difficult case involving arguments based on text, structure, history, purpose, tradition and normative desirability.  Just as the justices disagree about the resolution of the case based on these various criteria, so to do the justices disagree about the appropriate interpretive approaches based on multiple criteria.

Finally, it is true that an individual case produces a precedent and therefore some stable resolution, whereas interpretive disagreements continue.  But that is the result of the fact that precedent is not applied to interpretive matters.  The Supreme Court decides case 1 based on originalism and then case 2 based on nonoriginalism.  But no one argues that it failed to follow precedent.  So the problem of interpretive disagreement continues.  But that does not mean that the Court’s disagreement about interpretive approaches is any less legal than its disagreements about particular cases.

James Fleming: Fidelity, Change, and the Good Constitution
Michael Ramsey

James Fleming (Boston University - School of Law) has posted Fidelity, Change, and the Good Constitution (American Journal of Comparative Law, Vol. 62, 2014, Forthcoming) on SSRN. Here is the abstract:

In thinking about fidelity and change in constitutional interpretation, many have framed the basic choice as being between originalism and living constitutionalism. Consider, for example, Jack M. Balkin’s Living Originalism, Robert W. Bennett and Lawrence B. Solum’s Constitutional Originalism: A Debate, and John O. McGinnis and Michael B. Rappaport’s Originalism and the Good Constitution. I shall argue for the superiority of what Ronald Dworkin called “moral readings of the Constitution” and what what Sotirios A. Barber and I have called a “philosophic approach” to constitutional interpretation. By “moral reading” and “philosophic approach,” I refer to conceptions of the Constitution as embodying abstract moral and political principles – not codifying concrete historical rules or practices – and of interpretation of those principles as requiring normative judgments about how they are best understood – not merely historical research to discover relatively specific original meanings.

I shall argue that Dworkin’s and my conceptions of fidelity and change are superior to those of originalism in its many varieties. For our moral readings enable us to see what originalisms (besides Balkin’s) obscure or deny: that one of the main purposes of the Constitution is to exhort us to change in order to honor our aspirational principles and affirmatively to pursue good things like the ends proclaimed in the Preamble. Thus, the aspiration to fidelity requires rather than forbids change. But it does so in the name of honoring our commitments and building out our framework of constitutional self-government with coherence, integrity, and responsibility, rather than in the name of “updating” a “living” constitution. It aims for something better than preventing “rot,” as Scalia famously put it. I shall attempt to make good on these claims by arguing that moral readings help us better understand the Constitution as both a framework for change and a charter of aspirations to which we owe fidelity. They enable us to see how the multiple modalities of argument in constitutional interpretation (including original public meaning and precedent), rather than preventing change, are sites in which we argue about, and sources through which we justify, change: in particular, how best to realize and thus to be faithful to our constitutional aspirations. Or, as Dworkin put it, how to interpret the Constitution so as to make it the best it can be.

In sum, my topic is fidelity without originalism and change without living constitutionalism. I also ponder the reasons for the grip of originalism in our constitutional culture as contrasted with its rejection elsewhere. I shall suggest that the reasons commonly offered in fact demonstrate the grip of the aspiration to fidelity, not the grip of originalism itself. And I shall contend that those reasons in fact show the need for a moral reading or philosophic approach that conceives fidelity as redeeming the promise of our constitutional commitments, not an authoritarian originalist conception of fidelity as following the relatively specific original meaning (or original expected applications) of the Constitution.


Andrew Hyman: The Substantive Role of Congress Under the Equal Protection Clause
Michael Ramsey

Andrew Hyman  (The Institute for Intermediate Study) has posted The Substantive Role of Congress Under the Equal Protection Clause on SSRN.  Here is the abstract: 

The authors of the Fourteenth Amendment deliberately wrote that no state may deny the equal protection “of the laws” rather than “of its laws.” This may seem nowadays like a small difference, but it was important in that era, because it meant that the word “laws” includes both state and federal laws. Hence Congress has a substantive role under this clause that applies against the states. This meaning conflicts with recent U.S. Supreme Court cases like City of Boerne v. Flores, 521 U.S. 507 (1997) which have largely shut Congress out. The emphasis here is on the original meaning of the Equal Protection Clause, and especially on the public understanding of its text when it was enacted.