07/14/2017

Textualism from Justice Elena Kagan
Michael Ramsey

Jonathan R. Nash at The Hill: Justice Kagan Channels Scalia in Textualist Supreme Court Opinion. From the introduction:

A fair amount of attention has focused on the first opinion — in the case of Henson v. Santander Consumer USA — authored by newly-minted Supreme Court Justice Neil Gorsuch.

But the Court’s opinion in another case decided in June — Advocate Health Care Network v. Stapleton, an opinion arising under the federal Employee Retirement Income Security Act (“ERISA”) statute — is also worthy of some attention.

As in Henson, the opinion in Advocate Health Care Network was for a unanimous Court (although Justice Gorsuch did not participate in the latter case). Like Justice Neil Gorsuch’s opinion in Henson, the opinion in Advocate Health Care Network was heavily textualist, emphasizing the importance of following the words Congress used in drafting a statute rather than speculating what Congress might have wanted to do if confronted with the facts now before the Court.

What is surprising is that the Advocate Health Care Network opinion was authored by Justice Elena Kagan, an appointee of President Barack Obama. While Kagan has exhibited a penchant for textualism over the years, this opinion is a tour de force in textualist interpretive technique.

07/13/2017

Jean Galbraith: Cooperative and Uncooperative Foreign Affairs Federalism
Michael Ramsey

In the current edition of the Harvard Law Review, Jean Galbraith has the book review Cooperative and Uncooperative Foreign Affairs Federalism. (reviewing Michael Glennon and Robert Sloane, Foreign Affairs Federalism: The Myth of National Exclusivity).  From the the introduction:

Foreign affairs are a matter for our national government. On this there was agreement from the beginning, with even the Jeffersonians accepting that the nation should be “one as to all foreign concerns,” albeit “several as to all merely domestic.” The text of the Constitution bestows a cornucopia of foreign affairs powers upon the federal government and explicitly limits the powers of the states. The received wisdom was that, as Alexis de Tocqueville wrote, “[n]ations in relation to each other are but single units” and “[a] nation needs a single government above all to give it the advantage when dealing with foreigners.”

But are foreign affairs exclusively a matter for our national government? And if not, then what can states and local governments do with regard to foreign affairs? Like other separation of powers issues, these questions have been with us throughout our constitutional history, sometimes salient and sometimes muted, expressed through the continued practice of various layers of government and the sporadic interventions of courts. From early on, states have engaged with issues involving both local and transnational dimensions, including immigration, the treatment of foreign nationals, and the use of foreign law.

Today the shared space between what is local and what is transnational is far greater. Just as issues once viewed as local matters increasingly came to be seen as national, so now they are increasingly taken to have transnational significance. Globalization presses on practically every front: trade, environment, security, health, human rights, investment, migration, and more. One prominent effect of this shift has been the rise of transnational regulation through treaties and other forms of international cooperation.The counterpart is the growing extent to which state and local governments act in this shared space. This is the focus of Professors Michael Glennon and Robert Sloane’s thoughtful recent book, Foreign Affairs Federalism: The Myth of National Exclusivity.

...

In what follows, I argue for reorienting the focus of foreign affairs federalism toward its cooperative and uncooperative aspects. In Part I, I situate Glennon and Sloane’s contribution within the broader literature on foreign affairs federalism and describe some of their contributions. In Part II, I briefly examine four of the examples of foreign affairs federalism given by Glennon and Sloane: the sister-cities program, trade sanctions and related measures, the regulation of undocumented immigrants, and climate change mitigation actions. I argue that both the political choices made by state and local governments and the legal consequences of these choices interact closely with a backdrop of federal statutes and executive branch action, while background constitutional principles about state power in the face of federal silence play a distinctly smaller role. In Part III, I draw on scholarly work engaging with cooperative and uncooperative federalism and consider what implications it offers for the foreign affairs context. This literature explores how the federal government can incentivize state and local governments to help advance federal interests, how these state and local governments can in turn influence or resist federal policy, and how both Congress and the executive branch can use state and local action to muster power at the expense of the other branch. At a high level of generality, these insights apply to the foreign affairs context. But because of the added complexity of the foreign affairs context — including its ties to international law and its increased reliance on strong executive power — the specifics cannot simply be imported wholesale. I therefore close by suggesting three sets of ways in which the practice and doctrine associated with cooperative and uncooperative foreign affairs federalism should differ from the domestic context.

07/12/2017

More Emoluments Originalism
Michael Ramsey

At Lawfare, Jane Chong, Reading the Office of Legal Counsel on Emoluments: Do Super-Rich Presidents Get a Pass?

On the originalist aspect of the debate: 

A threshold issue before turning to the OLC literature is the confusion created by cherry-picking historical materials without consideration of their factual context. For example, in its motion to dismiss, the Justice Department followed the lead of some scholars in pulling some Supreme Court language that suggests the term “emoluments” applies only to salary and other duty-related benefits. Most notably, in Hoyt v. United States, 51 U.S. 109 (1850), the Court defines emoluments as “every species of compensation or pecuniary profit derived for a discharge of the duties of office” (emphasis added).

But in Hoyt, the Supreme Court was specifically asked to decide what constitutes an “emolument of office” per a statute governing Treasury Department collectors in their official capacity; the case did not require the Court to consider or rule on the existence of emoluments of other kinds. This is a key point for purposes of properly construing any Comptroller or OLC opinion that cites Hoyt and regurgitates its definition of “emoluments.” These opinions, like Hoyt, have to be read with an eye to their facts: they do not assert that “emoluments” must derive directly from discharge of duty; rather, the kind of emoluments at issue in those opinions was the kind derived for discharge of duty. As a consequence, the reliance on Hoyt in these opinions does not serve as evidence of a limiting principle for emoluments in general.

In short, as pointed out by the plaintiffs and by assorted scholars, the proper question for purposes of discerning the historical scope of “emoluments” is not whether the term could be interpreted in a restricted way, to refer only to benefits derived from discharging the duties of an office, but whether it was necessarily so interpreted at the time the Emoluments Clauses were drafted. As John Mikhail haspainstakingly documented, the answer is no—and we don’t have to look at secondary sources, however authoritative (e.g., Black’s Dictionary) to draw that conclusion. Consider, for example, some of the constitutions ratified during the first of two major waves of state constitution-making in the Founding decade. Several included “common benefits clauses” that used the word “emoluments” in a way that simply defies narrow interpretation. The Pennsylvania Constitution (1776) provides: “That government is, or ought to be, instituted for the common benefit, protection and security of the people, nation or community; and not for the particular emolument of advantage of any single man, family or sett [sic] of men, who are a part only of that community[.]” Very similar language appears in the Virginia (1776), Vermont (1777), and New Hampshire (1784) constitutions. Far more elaborate historical arguments demonstrating the broad uses of the term have been presented elsewhere: see here,here and here. The bottom line is that there is an abundance of primary Founding-era material making use of the broad definition of emoluments, so it is wrong to use language from fact-bound case law to assert that the term is an inherently limited one.

Seth Barrett Tillman responds at the New Reform Club:

... It is conceivable that the Hoyt Court added “of office” language to “emolument” because it believed that there were “emoluments” which were unrelated to office, but it is also possible that the Hoyt Court thought all “emoluments” were tied to office-and-employment-type relationships. Without [Chong's] initial misreading of Hoyt or any other substantial reason to believe the former, the rest of her analysis makes no sense.

It is not as if the meaning of “emoluments” has not come up before. Chong only turns to OLC memoranda as guidance because she lacks anything akin to a judicial decision from the U.S., any state or territory, and any foreign court in the common law world—any decision asserting that you can have an emolument unrelated to discharging the duties of office (or an employment-type relationship). That is telling. And it is not as if commentators have not spoken to this question: the meaning of “emoluments.” They have done that long before Trump. In 1850, the Hoyt Court tied “emoluments” to employment-type relationships, and it did that when interpreting a 1799 statute (as subsequently amended). A 1799 statute’s use of “emoluments” is not obviously so different from how the same word was used in the Constitution in 1789. More recently, Professor Kerridge explained: “[W]hile it is perfectly possible to argue that a payment is a profit but that it is not a profit from an employment, it makes no sense to argue that something is an emolument but that it is not from an employment. All emoluments must be from employments,” and “All emoluments are from employments, or from the equivalent of employments, that is the essenceof emoluments.”

And Brianne Gorod at Take Care Blog, responding to a separate argument by Professor Tillman: What Alexander Hamilton Really Said. 

... [A] small group of commentators has nonetheless maintained that [the emoluments clause] does not apply, or at least may not apply [to the President].  The leader of this group of naysayers is Seth Barrett Tillman, who has argued forcefully—and repeatedly—that the Foreign Emoluments Clause’s broad language does not encompass the President of the United States.  Although Tillman makes more than one argument in this fight, he has often leaned heavily on one particular piece of evidence: a list of “persons holding office under the United States and their salaries” put together by Treasury Secretary Alexander Hamilton that, he says, “did not include any elected officials in any branch.”  According to Tillman, this document demonstrates that “officers under the United States are appointed; by contrast, the president is elected, so he is not an officer under the United States.  Thus, the Foreign Gifts Clause, and its operative office under the United States language, does not apply to the presidency.”

Tillman pointed to this document here and here and here, and others have understandably relied on his accounting of the Hamilton document.  Most recently, Tillman pointed to it in an amicus brief in support of the government’s motion to dismiss the lawsuit filed by CREW and others in the Southern District of New York.

But there’s a big problem: the document Tillman cites is not the only record of Hamilton’s communication to the United States.  The document Tillman cites states, “The Secretary of the Treasury, in obedience to the order of the Senate of the 7th of May last, respectfully transmits herewith sundry statements of the Salaries fees and Emoluments for one Year ending the first of October 1792, of the Persons holding civil offices or employments under the united States (except the Judges) as far as Returns have been rendered . . . .”  The editors of Alexander Hamilton’s papers added a footnote explaining that there was, as Hamilton’s letter indicated, an enclosure—the actual list of officeholders and their respective compensation.  And as the footnote further explained, while “[t]his enclosure, consisting of ninety manuscript pages, has not been printed,” an “abbreviated version of it” is available in the American State Papers.

When one looks at the “abbreviated version” of the enclosure (available here at image 57), one name is right at the top: George Washington, President of the United States.  John Adams, as Vice President, appears right below his.

It seems that people care what origianlism says about the emoluments clause, Professor Ledewitz notwithstanding.

07/11/2017

New Book: "Settled Versus Right: A Theory of Precedent" by Randy Kozel
Michael Ramsey

Recently published, by Randy Kozel (Notre Dame): Settled Versus Right: A Theory of Precedent (Cambridge Univ. Press 2017). Here is the book description form Amazon:

In this timely book, Randy J. Kozel develops a theory of precedent designed to enhance the stability and impersonality of constitutional law. Kozel contends that the prevailing approach to precedent in American law is undermined by principled disagreements among judges over the proper means and ends of constitutional interpretation. The structure and composition of the doctrine all but guarantee that conclusions about the durability of precedent will track individual views about whether decisions are right or wrong, and whether mistakes are harmful or benign. This is a serious challenge, but it also reveals a path toward maintaining legal continuity even as judges come and go. Kozel's account of precedent should be read by anyone interested in the nature of the judicial role and the trajectory of constitutional law.

(With very positive blurbs from Adrian Vermeule, Jack Balkin and Fred Schauer).

Originalism needs a theory of precedent.

(Via Rick Garnett at Prawfsblawg).

RELATED:  Professor Kozel is guest-blogging about his book at Volokh Conspiracy.  Here is his first post.

07/10/2017

David Weisberg on Trinity Lutheran
Michael Ramsey

David Weisberg comments:

There has been much discussion of whether the Trinity Lutheran opinionsomehow signals the end of original-public-meaning originalism.  I have expressed my own views as to the fatal flaw in original-public-meaning originalism, but Trinity Lutheran is not in any way illustrative of that flaw.  Rather, that case can best be understood as correctly decided under the Establishment Clause, as that clause has been applied against the States.
 
Importantly, the Establishment Clause does not prohibit only a law “establishing a religion;” it more broadly prohibits a law “respecting an establishment of religion.”  The former prohibition would nullify a law announcing that the State will provide more favorable treatment to one religion than to any other religion, but the broader latter prohibition also nullifies a law announcing that the State will treat one religion less favorably than any other religion.  What is in effect the disestablishment of one particular religion is also a law “respecting an establishment of religion.”
 
What is true of laws dealing with particular religions is, I think, also true of laws dealing compendiously with all religions.  Suppose a State provided funding to private schools for some activity having no connection with the exercise of religion—e.g., the repaving of a school playground—if and only if the school were affiliated with some religious organization and its students were taught, in addition to the state-required curriculum, religious lessons.  (We know that repaving school playgrounds has, in itself, nothing to do with the exercise of religion because Missouri was willing to repave the playgrounds of schools unaffiliated with religious institutions.)  This law would, I think, violate the Establishment Clause, because treating religious institutions more favorably than non-religious ones amounts to a law “respecting an establishment of religion.”
 
The converse is also true: if a State treats religious institutions less favorably than secular institutions with regard to activities having no connection with the exercise of religion, that amounts to the disestablishmentof all religious institutions.  A law that disestablishes all religious institutions falls within the prohibition of a law “respecting an establishment of religion.”
 
And in response to my follow-up  question whether this view makes the Free Exercise Clause superfluous:
 
I don't think it does.  Employment Division v. Smith, e.g., is a case in which a law that on its face makes no reference to religion (unlike the constitutional provision in Trinity Lutheran) nevertheless violates, in my opinion, the Free Exercise clause.  That is, I think Employment Division v. Smith is wrongly decided because, absent a compelling state interest, the state law (unconstitutionally) interferes with the free exercise of religion.  But, in my view, the Oregon law does not in any way violate the Establishment Clause. 
 
To further clarify: when the government acts with the actual intention of favoring or disfavoring a religion or all religions, the Establishment Clause is almost certainly the relevant constitutional provision.  In these cases, the government's law, regulation or practice will inevitably make reference to religion or religious institutions.  But, where the government acts in a facially neutral way and without any intent to favor or disfavor any religion or all religions, the government might nevertheless violate the Free Exercise Clause.  These latter cases, however, would not violate the Establishment Clause.  The Eighteenth Amendment was not adopted for the explicit purpose of advancing or hindering religion, and it makes no reference to religion.  But if, for example, sacramental wine had not been exempt during Prohibition, in my view that would have been a violation of the Free Exercise Clause.  The drafters of the Volstead Act agreed, I think, because they did exempt sacramental wine.

Must the President Fill Executive Offices?
Michael Ramsey

At Lawfare, Christopher Fonzone & Joshua A. Geltzer, Can President Trump Just Leave Key Executive Branch Offices Unfilled? From the introduction:

Five months into Donald Trump’s presidency, the top ranks of the Executive Branch remain a lonely place. Commentators have, increasingly, noted the number of key positions that remain unfilled—emphasizing, in particular, critical national security roles that sit empty. For example, in April, Business Insider assessed that the Trump administration had yet to nominate candidates for 85 percent of positions requiring Senate confirmation, pointing to the concerns such absences raise for executing time-sensitive national security policies; and, in June, Vox focused on 14 vital national security positions that remained unfilled. Indeed, not only are these critical jobs empty, but there aren’t even potential officials proposed for most of them. 

Several reasons have been advanced for this slow pace: a transition that made less progress selecting appointees than previous hand-offs; internal disagreements over personnel policy; and so on. Perhaps most tellingly, consistent with his professed goal of “draining the swamp,” President Trump has said that a number of the Executive Branch slots are vacant simply because he doesn’t want those roles to exist: “A lot of those jobs I don’t want to appoint because they’re unnecessary to have. We have so many people in government. . . .  You don’t need all those jobs.” As Sarah Posner has noted in the Washington Post, simply failing to fill key jobs is Trump’s fastest and easiest way to deliver on Steve Bannon’s promise of the “deconstruction of the administrative state.”

And that raises an interesting and important question: Is the persistent and deliberate failure to identify candidates not merely a sign of inept governance and deadlocked politics but also, at least in certain cases, a legal failing as well?

And from the core of the argument:

[Some statutes establishing offices]  state that the president “shall appoint” certain officials: the Attorney Generalother high-ranking Department of Justice officialsInspectors General across the federal government, and many other critical positions.

These statutes are mandatory, not discretionary. Their language doesn’t simply permit the president to appoint an officer; they establish an office and require the president to fill it. 

Legal scholars debate whether the Appointments Clause’s use of “shall” places an affirmative duty on the president to fill statutory offices. Noting that the Constitution uses “shall” not only to assign duties but also to allocate authority or indicate that action will be taken in the future, many scholars point to historical practice and language from early Supreme Court decisions to argue that no such constitutional duty is created.

But even if one accepts this argument, these same scholars who deny the existence of a constitutional duty recognize that “shall” is understood very differently today. Consistent with Supreme Court case law on what that word means in federal statutes, the dominant view in modern statutory interpretation is that the use of “shall” ordinarily indicates an affirmative obligation, not merely an available choice. That’s especially true in the context of these statutes. As shown above, Congress has distinguished between offices that may be filled and offices that must be filled; and, unlike certain constitutional text using “shall,” these statutory provisions serve no “predictive” purpose—to the contrary, their apparent sole function is to impose an obligation on the president to create and fill roles in the Executive Branch.

At the New Reform Club, Seth Barrett Tillman disagrees: A Response to Fonzone & Geltzer’s Can President Trump Just Leave Key Executive Branch Offices Unfilled? The main argument:

The President can only make appointments to Supreme Court positions and certain other federal positions if the President has the advice and consent of the Senate. Sometimes Senate consent is required as a constitutional matter, and sometimes Senate consent is required as a statutory matter, and sometimes, a position requires Senate consent under the Constitution and as a statutory matter. In regard to all these positions, positions where Senate consent is required, my view is that the Senate cannot impose a mandatory duty on the President to make an appointment. There are two primary reasons for this. First, the President cannot make any such appointments absent Senate consent, and the Senate has no duty even to consider the President’s nomination.  [citations omitted]. The second reason is that in Marbury v. Madison, the Supreme Court described the 3-stage process of presidential nomination, Senate advice and consent, and presidential appointment. Justice Marshall did not characterize the President’s role in this process merely as “discretionary,” and if he had, such discretion-related language might extend no further than to the choice of nominee. Rather, the Marshall Court described the President’s role as one which was “voluntary.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 155–56 (1803) (Marshall, C.J., for a unanimous Court). Of course, Fonzone & Geltzer might respond: So what: John Marshall was just speaking about the President’s duty under the Appointments Clause, not under a federal statute. But that response is insufficient, Fonzone & Geltzer must show how a federal statute could turn a voluntary presidential power into a mandatory duty. Does anyone really believe Congress can do that? The President, under the Constitution, can sign bills, veto them, or leave them unsigned. Could Congress mandate that the President must sign or veto all bills? Could Congress mandate that the President sign all bills? I think not. So how could Congress mandate that the President must act where (according to the Court in 1803) he has discretion not to act at all?

07/09/2017

Is Trinity Lutheran the End of Originalism? [Updated]
Michael Ramsey

In the Philadelphia Inquirer, Bruce Ledewitz: 'Trinity' case marks end of originalism.  It begins:

It was probably always a mistake to take originalism seriously as a theory of constitutional interpretation. Originalism, or textualism as its great proponent, the late Justice Antonin Scalia, termed it, is the theory that constitutional provisions should be interpreted in accordance with their original public meaning.

The theory never made any sense either as a matter of language or political theory and was premised on a nihilistic skepticism about the possibility of truth in political affairs. Nevertheless, originalism has achieved a real rhetorical dominance. But, with the Trinity Lutheran Church decision on June 26, originalism as a theory can confidently be relegated to the historical ash heap.

Professor Ledewitz appears to belong to the camp that thinks one can make originalism go away by yelling at it.

At Volokh Conspiracy, Randy Barnett has extensive (harsh) comments: Does Trinity Lutheran mark the “end of originalism”. He begins:

What is it about originalism that makes smart living constitutionalist law professors write silly things? Duquesne law professor Bruce Ledewitz is a smart guy. But he’s written a snarky op-ed about about the Trinity Lutheran case and originalism entitled, ‘Trinity’ case marks end of originalism.  Let’s review it, shall we?

Professor Barnett makes a number of excellent points.    Here are a couple I'll amplify.

(1) Professor Ledewitz's contention that originalism is "premised on a nihilistic skepticism about the possibility of truth in political affairs" is nonsense, and Professor Ledewitz makes no effort (literally none) to support the claim.  Originalism is premised on the contention that the search for "truth in political affairs" is committed in our constitutional system to the people and their elected representatives, not to unelected judges;  judges have the more modest role of determining what the law is, based on the meaning of laws enacted by the people and their representatives, rather than saying what the law should be.  Professor Ledewitz apparently envisions a much more outsized role for judges as the arbiters of "truth in political affairs."  That, he should recognize, is his real objection to originalism.  It's a legitimate objection, but of course does not lead to the sort of absolutism he's pursuing.

(2)  Ledewitz's contention that originalism "never made any sense either as a matter of language or political theory" is equally unsupported.  As to political theory, originalism's basic claim is the one laid out in point (1) above: the search for "truth in political affairs" should be, as much as possible, committed to the people and their representatives, and judges should be constrained, as much as possible, to the meaning of their enactments.  One may not like that theory (because it arguably leads to sub-optimal outcomes), but it would take quite a bit to show that it makes no sense.  As to making sense as a matter of language, I assume that means that finding the original meaning simply isn't possible.  But as Barnett writes:

But if [Ledewitz] means to claim that an original public meaning of the text cannot be discovered “as a matter of language,” he then immediately contradicts that claim by asserting an original meaning of the Establishment Clause so definitive that a finding for Trinity Lutheran was “ridiculous” “from the point of view of originalism.”

I'm amazed that nonoriginalist commentators continue to simultaneously claim that originalism is fatally indeterminate and that it inevitably leads to bad results, even though this contradiction has been repeatedly pointed out.

(3) The idea that, based on Trinity Lutheran, "originalism as a theory can confidently be relegated to the historical ash heap" is equally unexplained and equally nonsensical.  True, Trinity Lutheran is not much of an originalist opinion.  But that says little about originalism as a theory.  First, I see Trinity Lutheran as mostly based on precedent.  Many versions of originalism accommodate precedent, especially when the Constitution's text is not clear.  Second, originalism as a theory is not typically a predictive theory of what the Court will do; it's a theory of what the Court should do.  The Court has issued many nonoriginalist opinions.  It's true also that the Court's originalist and originalist-oriented Justices did not have much to say about originalism in the opinion, and that's a cause for some concern.  But again, Professor Ledewitz seems unduly apocalyptic.

(4) On the merits, Ledewitz makes a complete hash of the originalist analysis.  His main claim is that the Establishment Clause precludes the state from giving money to improve the church playground (as part of a program to generally improve playgrounds).  As Professor Barnett points out, the Establishment Clause issue is complicated by the fact that it's a state law being challenged, and so the analysis must come from the Fourteenth Amendment, not the Establishment Clause directly (something Ledewitz ignores).  But even leaving that aside, it's not at all clear to me that the original meaning of the Establishment Clause requires churches to be excluded from benefits generally available to other private entities. Presumably, for example, the government may offer police and fire protection to churches along with other buildings, and may build and maintain roads leading to churches.  The founders were indeed worried about government money going to churches (as Ledewitz says), but the paradigm concern was special benefits for churches.  The "established" church received benefits not available to others; thus the core problem was favoritism.  Trinity Lutheran does not involve favoritism.  To say it is covered by the Establishment Clause (to the extent that any other position is "ridiculous") seems a stretch.

(5)  Nonetheless, I have some ultimate sympathy for Professor Ledewitz's position.  Although I don't find the Establishment Clause argument persuasive, I also have doubts about the Free Exercise Clause argument.  The Court's majority largely assumes that the Free Exercise Clause is a non-discrimination provision (as noted, mostly on the basis of precedent).  Maybe that's right, but it does not seem to follow inevitably from the clause's text.  The state's failure to fund improvements to the church playground does not seem to "prohibit" the church members' free exercise of their religion.  Exercise of religion does not require a playground.  True, denial of the state funding burdens the religious exercise slightly, by making it more expensive for the church (compared to other entities) to have a playground.  But that seems, at least arguably, short of a prohibition.  Thus I think Ledewitz is right that a serious originalist analysis would seem to call for more discussion than the Court accorded it, and that the opinions may be criticized on this ground.  I would say, though, that that indicates the continuing relevance of originalism, not its demise.

UPDATE:  Professor Ledewitz has an extensive response to Professor Barnett at his blog Hallowed Secularism, and Professor Barnett has an extensive response to the response: “The end of Originalism” Round Two: Ledewitz doubles down. Quite a bit has been said so I don't think I'll add any more.

ASIDE:  Professor Ledewitz's Hallowed Secularism, which I hadn't encountered before, is an interesting blog with generally a lot more subtlety than in the originalism broadside -- see here (on the President firing James Comey), here (on the Paris Agreement) and here (Putnam versus Scalia).  One of my favorite parts of collecting originalism commentary is discovering new (t0 me) perspectives.

FURTHER UPDATE:  John McGinnis has a somewhat related post at Liberty Law Blog, although not tied to this discussion: Is the Court’s Originalist Jurisprudence Mostly Symbolic? He concludes:

Originalism in the academy has entered an almost golden age.  Careful scholarship offers better and better templates for interpreting provisions the Constitution as written. But the originalist revival on the Court, while valuable for its models of sound judicial reasoning, is still in its infancy. Originalism will be recognized as the dominant mode of constitutional interpretation when most Justices are ready to make originalist decisions that go beyond symbolism.

Agreed.  The fact that the Court's originalism remains a bit tentative does not mean (as Professor Ledewitz would have it) that originalism has failed.  It means only that its future is unclear.  As the future usually is.

07/08/2017

William Baude and Ryan Doerfler: Arguing with Friends
Michael Ramsey

William Baude (University of Chicago - Law School) and Ryan D. Doerfler (University of Pennsylvania Law School) have posted Arguing with Friends (U of Penn Law School) on SSRN. Here is the abstract:

It is a fact of life that judges sometimes disagree about the best outcome in appealed cases. The question is what they should make of this. The two purest possibilities are to shut out all other views, or else to let them all in, leading one to concede ambiguity and uncertainty in most if not all contested cases.

Drawing on the philosophical concepts of “peer disagreement” and “epistemic peerhood,” we argue that there is a better way. Judges ought to give significant weight to the views of others, but only when those others share the judge’s basic methodology or interpretive outlook – i.e., only when those others are methodological “friends.” Thus textualists should hesitate before disagreement with other textualists, and pragmatists should hesitate before disagreeing with like-minded pragmatists. Disagreement between the two camps is, by contrast, "old news" and so provides neither additional reason for pause. We thus disagree with a recent proposal by Eric Posner and Adrian Vermeule, that would give presumptive weight to the votes of all other judges, regardless of methodology.

We also suggest that judges should give weight to the views of all of their methodological friends, not just judges. And we suggest, even more tentatively, that our proposal may explain and to some extent justify the seemingly ideological clusters of justices on the Supreme Court. The most productive disagreements, we think, are ones that come from arguing with friends.

07/07/2017

Sai Prakash and John Yoo on Justices Gorsuch and Thomas
Michael Ramsey

In the Wall Street Journal, Sai Prakash (Virginia) and John Yoo (Berkeley): Gorsuch Makes a Mark on the Court --Thomas, the consistent originalist, seems to have found a fellow traveler in his new colleague.  From the introduction:

The Republican gamble to stiff-arm Merrick Garland and hold open Justice Antonin Scalia’s seat appears to have hit the jackpot. In his abbreviated first year on the Supreme Court, Justice Neil Gorsuch has lived up to supporters’ greatest hopes and critics’ worst fears.

RELATED:  This article from Adam Liptak at the New York Times:

New justices usually take years to find their footing at the Supreme Court. For Justice Neil M. Gorsuch, who joined the court in April, a couple of months seem to have sufficed.

His early opinions were remarkably self-assured. He tangled with his new colleagues, lectured them on the role of the institution he had just joined, and made broad jurisprudential pronouncements in minor cases. ... [with a good analysis of the opinions following].

All this seems right.  My thoughts on Gorsuch and Thomas are here: The Thomas-Gorsuch Alignment.

(Via How Appealing)

07/06/2017

D.C. Circuit Decision on Drones and the Political Question Doctrine
Michael Ramsey

In a recent decision, the D.C. Circuit rejected -- principally on political question grounds -- a challenge to the legality of U.S. drone strikes: Ahmed Salem Bin Ali Jaber v. United States (per Judge Janice Rogers Brown).  Here is the court's discussion of the political question analysis post-Zivotofsky:

Plaintiffs argue their reading of [the D.C. Circuit's prior decision in] El-Shifa gains support from the Supreme Court’s opinion in Zivotofsky ex rel. Zivotofsky v. Clinton, 566 U.S. 189 (2012), which held the political question did not bar judicial review of a claim attacking the constitutionality of a statute allegedly regulating the Executive. Again, Plaintiffs’ claim fails.

In Zivotofsky, the Court considered a statute directing the Secretary of State, upon request, to issue a registration of birth or passport to a U.S. citizen born in Jerusalem that identified the individual’s place of birth as “Jerusalem, Israel.” Id. at 193. The President’s signing statement asserted the statute, if it were construed as mandatory, would impermissibly interfere with the Executive’s foreign relations powers. Id. at 192. Consequently, the U.S. Embassy later refused Zivotofsky’s request to list his place of birth as Jerusalem, Israel and issued a passport and registration of birth listing only “Jerusalem.” Id. at 193. The Supreme Court noted “the parties [did] not dispute the interpretation” of the statute, and the question before the Court concerned whether the statute was constitutional. Id. at 196. Accordingly, the Court held the question justiciable, reasoning Zivotofsky did not “ask the courts to determine whether Jerusalem is the capital of Israel” but sought only to vindicate his statutory right to have Israel designated as his place of birth on his passport. Id. at 195.

Zivotofsky confirms no per se rule renders a claim nonjusticiable solely because it implicates foreign relations. Rather, it recognizes that, in foreign policy cases, courts must first ascertain if “[t]he federal courts are . . . being asked to supplant a foreign policy decision of the political branches with the courts’ own unmoored determination” or, instead, merely tasked with, for instance, the “familiar judicial exercise” of determining how a statute should be interpreted or whether it is constitutional. Id. at 196. In the latter case, the claim is justiciable. Id.; see also Japan Whaling Ass’n v. Am. Cetacean Soc’y, 478 U.S. at 229–30 (stating not “every case or controversy which touches foreign relations lies beyond judicial cognizance[,]” and emphasizing “courts have the authority to construe treaties[,] . . . executive agreements, and . . . congressional legislation” and to address other “purely legal question[s] of statutory interpretation” in the foreign policy realm). Therefore, if the court is called upon to serve as “a forum for reconsidering the wisdom of discretionary decisions made by the political branches in the realm of foreign policy or national security[,]” then the political question doctrine is implicated, and the court cannot proceed. El–Shifa, 607 F.3d at 842.

Zivotofsky sought only to enforce a statute alleged to directly regulate the Executive, and the reviewing court needed to determine only “if Zivotofsky’s interpretation of the statute [was] correct, and whether the statute [was] constitutional.” Zivotofsky, 566 U.S. at 196. 2 The Court was not called upon to impose its own foreign policy judgment on the political branches, only to say whether the congressional statute encroached on the Executive’s constitutional authority. This is the wheelhouse of the Judiciary, and accordingly, it does not constitute a nonjusticiable political question. Here, however, Plaintiffs assert claims under the TVPA and ATS that would require the Court to second-guess the wisdom of the Executive’s decision to employ lethal force against a national security target—to determine, among other things, whether an “urgent military purpose or other emergency justified” a particular drone strike. JA 10. Indeed, Plaintiffs’ request is more analogous to an action challenging the Secretary of State’s independent refusal to recognize Israel as the rightful sovereign of the city of Jerusalem, a decision clearly committed to executive discretion.

This seems right to me, but it depends a bit on how the plaintiffs' framed their claim.  In my originalist view (admittedly perhaps not a widely shared view) plaintiffs would state a non-political claim if they contended that the strikes were unconstitutional because not approved by Congress.  (See Little v. Barreme).  As the D.C. circuit opinion rightly sums Zivotofsky, the analysis is whether the claim asks a pure question of constitutional (or statutory) law or whether it asks for an assessment of executive discretion.  The question of congressional approval seems to me to be the former (without saying how it should be answered on the merit).

Judge Brown added a concurrence to her own opinion, saying in part:

… Courts are ill equipped “to assess the nature of battlefield decisions” or “to define the standard for the government’s use of covert operations in conjunction with political turmoil in another country.” Al-Aulaqi v. Obama, 727 F. Supp. 2d 1, 45 (D.D.C. 2010).

Of course, this begs the question: if judges will not check this outsized power, then who will? No high-minded appeal to departmentalism, arguing “each [branch] must in the exercise of its functions be guided by the text of the Constitution according to [that branch’s] own interpretation of it,” E. BURNS, JAMES MADISON: PHILOSOPHER OF THE CONSTITUTION 187 (reprinted 1968), changes the fact that every other branch of government seems to be passing the buck. The President is the most equipped to police his own house. See generally AKHIL REED AMAR, AMERICAN’S CONSTITUTION: A BIOGRAPHY 60–63 (2005) (discussing the President’s independent obligation to ensure his actions comply with the Constitution). But, despite an impressive number of executive oversight bodies, there is pitifully little oversight within the Executive. Presidents are slow to appoint members to these boards; their operations are shrouded in 6 secrecy; and it often seems the boards are more interested in protecting and excusing the actions of agencies than holding them accountable. Congress, perhaps? See generally Frank H. Easterbrook, Presidential Review, 40 CASE W. RES. L. REV. 905, 912 (1990) (“If Congress enacts a War Powers Act and the President goes his merry way in reliance on a more expansive view of executive power (and a stingy view of legislative power), Congress need not give up.”). But congressional oversight is a joke—and a bad one at that. Anyone who has watched the zeal with which politicians of one party go after the lawyers and advisors of the opposite party following a change of administration can understand why neither the military nor the intelligence agencies puts any trust in congressional oversight committees. They are too big. They complain bitterly that briefings are not sufficiently indepth to aid them in making good decisions, but when they receive detailed information, they all too often leak like a sieve.

Our democracy is broken. We must, however, hope that it is not incurably so. This nation’s reputation for open and measured action is our national birthright; it is a history that ensures our credibility in the international community. The spread of drones cannot be stopped, but the U.S. can still influence how they are used in the global community— including, someday, seeking recourse should our enemies turn these powerful weapons 180 degrees to target our homeland. The Executive and Congress must establish a clear policy for drone strikes and precise avenues for accountability.

(Via Jonathan Adler at Volokh Conspiracy).