Article III's Case-or-Controversy Requirement: The Original Meaning
Mike Rappaport

Another of the papers held at the Works-in-Progress Conference at the Originalism Center at the University of San Diego this past weekend was The Contested History of Article III's Case-or-Controversy by James Pfander of Northwestern University Law School.  Pfander’s paper provides evidence that early Congresses authorized and courts allowed lawsuits that do not seem to satisfy the modern Article III doctrine in terms of injury in fact and adverseness of the parties.  (While Pfander’s paper is not yet available online, a longer related paper is.)

One of Pfander’s examples is the naturalization proceeding that involved an action by an individual in court seeking citizenship.  The government was not a party to the proceeding.  According to Pfander, this proceeding does not involve an injury in fact and does not involve adverseness.  It does not involve injury in fact, because the applicant for citizenship has not been denied his citizenship by the government.  He is simply applying for it in court.  It does not involve adverseness because the government has not taken an adverse position to the applicant for citizenship.  The government is not involved. Other noncontentious proceedings included administrative proceedings in bankruptcy jurisdiction and ex parte warrant applications.

Pfander also argues that early statements support this understanding.  He argues that Chief Justice Marshall and Justice Story understood the constitutional term “case” not to require injury in fact or adverseness, but instead merely to require conformity to legal forms.  Pfander claims that the terms case and controversy in the Constitution actually have different meanings.  Case is broader referring to all actions that conform to legal forms; controversy requires that their be adversity between the parties.

Pfander’s argument is powerful and provides additional evidence that the modern Supreme Court’s standing doctrine does not conform to the original meaning of the Constitution.

The commentator on the paper was Caleb Nelson of the University of Virginia Law School, the co-author of one of the leading papers on standing, and one of the best originalist scholars in the country.  Nelson agreed that Pfander’s evidence cast doubt on the modern Supreme Court’s standing doctrine.  But Nelson sought to read the evidence more narrowly than Pfander did.

Nelson argued that the injury in fact requirement should be modified to be something of a litigable interest requirement.  For example, the applicant for citizenship had a concrete interest, even though he was not injured.  And Nelson argued that there was still adverseness; the Congress had simply waived its right to contest the application.  I agree with Nelson about the first point.  The second sounds like a bit of a stretch, but perhaps it works.

In the end, though, Pfander’s analysis provides significant evidence that our standing rules are too strict.  It would be interesting to ask how administrative law would be changed if this rule was accepted.  Under this rule, for example, Congress could require that persons who seek benefits go into court to get them.  In this way, even if other parties did not have standing to challenge the conferral of benefits, a court would still have to approve their provision.

(Cross posted at the Liberty Law Blog)

New Book: "Untrodden Ground: How Presidents Interpret the Constitution" by Harold Bruff
Michael Ramsey

An interesting forthcoming book by Harold Bruff (Colorado): Untrodden Ground: How Presidents Interpret the Constitution (Univ. of Chicago Press 2015).  Here is the book description from Amazon:

When Thomas Jefferson struck a deal for the Louisiana Purchase in 1803, he knew he was adding a new national power to those specified in the Constitution, but he also believed his actions were in the nation’s best interest. His successors would follow his example, setting their own constitutional precedents. Tracing the evolution and expansion of the president’s formal power, Untrodden Ground reveals the president to be the nation’s most important law interpreter and examines how our commanders-in-chief have shaped the law through their responses to important issues of their time.
Reviewing the processes taken by all forty-four presidents to form new legal precedents and the constitutional conventions that have developed as a result, Harold H. Bruff shows that the president is both more and less powerful than many suppose. He explores how presidents have been guided by both their predecessors’ and their own interpretations of constitutional text, as well as how they implement policies in ways that statutes do not clearly authorize or forbid. But while executive power has expanded far beyond its original conception, Bruff argues that the modern presidency is appropriately limited by the national political process—their actions are legitimized by the assent of Congress and the American people or rejected through debilitating public outcry, judicial invalidation, reactive legislation, or impeachment. Synthesizing over two hundred years of presidential activity and conflict, this timely book casts new light on executive behavior and the American constitutional system.

(With enthusiastic blurbs from David Strauss, Michael Gerhardt and Martin Flaherty).

Though I would have to quibble with the opening sentence of the description ... Jefferson may have thought he was adding a new power, but he was surely wrong: I find it hard to believe that the treatymaking power didn't include the power to add new territory, since (a) eighteenth century treaties among European powers routinely added and ceded territory; (b) the Constitution grants the treatymaking power without any subject matter limitations; and (c) Americans had for years dreamed of adding Canada to the Union, so it would be quite surprising if the Constitution barred them from doing so.

(Via Larry Solum at Legal Theory Blog).


King v. Burwell on Wednesday
Michael Ramsey

Oral argument in King v. Burwell (Obamacare subsidies) is tomorrow 3/4.

Abbe Gluck (Yale) has this interesting article at Politico: King v. Burwell Isn’t About Obamacare; It’s all about states’ rights—but the plaintiffs would rather you didn’t know that.  She mostly argues that Congress did not intend to limit subsidies to state exchanges because that would be too coercive of the states: 

The challengers’ interpretation turns Congress’s entire philosophy of states’ rights in the ACA upside down. Congress designed the exchanges to be state-deferential—to give the states a choice. But under the state-penalizing reading that challengers urge, the ACA—a statute that uses the phrase “state flexibility” five times—would be the most draconian modern statute ever enacted by the U.S. Congress that included a role for the states. What’s more, if interpreted as the challengers hope, the ACA would have been debated, enacted and implemented for two whole years under intense public scrutiny, including the scrutiny trained on it during the last major constitutional challenge in the Supreme Court in 2012, without anyone—no state, congressman or blogger—noticing these consequences or objecting to them.

brief filed by Virginia and more than 20 other states attests that any clue of the dramatic penalty the challengers have read into the statute was entirely lacking. In the end, King is about whether an invented narrative that only emerged for purposes of this case should be permitted to work the greatest bait and switch on state governments in history.

(By assumption, then, we should interpret the ACA according to its original intent).

But here is an eloquent account from an opposing perspective, by James Blumstein (Vanderbilt), guest-posting at Volokh Conspiracy, who sees the case as principally about separation of powers: The Administration, the IRS and the ACA: Will the courts rein in the president’s pen?:

... [T]he ACA clearly provides notice to states that their decision to establish an exchange is a prerequisite for subsidies for their residents.  Secondly, states are not foreclosed from establishing an exchange so as to allow their residents to qualify for a subsidy. There is no bait and switch as there was with expanded Medicaid. The state exchanges reflect an entirely new program. If a state misapprehended the stakes for not running an exchange, it can rectify that mistake now.  As long as states can still set up an exchange, the alleged lack of notice to states about the consequences of not establishing an exchange can be remedied. King is nothing like the expanded Medicaid case in this regard, as far as the clear notice rule is concerned.

The lower court in King ruled for the government, basically on the theory that the ACA intended to subsidize those income-qualified purchasers who buy insurance on all exchanges. But the issue is not some abstract question of what Congress intended, but what Congress actually did. And about that there can be no serious dispute. The Supreme Court should rein in the IRS by invalidating its regulation to the contrary.


Heller v. Doe in Obergefell
Chris Green

One thing that strikes me about the briefs filed Friday in the same-sex marriage cases, which the Supreme Court has put on its web site here (amici will be here), is how little attention they give to (what seems to me) the respondents' strongest argument: the deference due to traditionally-drawn distinctions under Heller v. Doe.  In Heller, Justice Kennedy said for the Court, considering the distinction between mental retardation and mental illness,

Ancient lineage of a legal concept does not give it immunity from attack for lacking a rational basis. That the law has long treated the classes as distinct, however, suggests that there is a commonsense distinction between the mentally retarded and the mentally ill.

Respect for the rationality of longstanding traditions--a much, much stronger tradition in the case of the distinction between same-sex and opposite-sex relationships than ever existed in favor of the distinction between inter-racial and intra-racial ones--is, I think, the strongest argument for the constitutionality of traditional limits on marriage.  It suggests that the commonsense distinction identified in Hernandez v. Robles ("Intuition and experience suggest that a child benefits from having before his or her eyes, every day, living models of what both a man and a woman are like.") is not unconstitutionally arbitrary. 

The key precedents on which the Obergefell petitioners depend--Romer, Lawrence, and Windsor--involved unique, unusual, or rarely-enforced laws.  Colorado's Amendment 2 was one-of-a-kind, Texas's sodomy prosecution had become quite unusual, and DOMA's failure to defer to states ran counter to history. The Obergefell cases, however, consider whether to nationalize an innovation only 15 years old in any country--same-sex marriage was first adopted by the Netherlands in 2000--and adopted in the U.S. by only 17 states (legislatures or popular votes in California, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Minnesota, New Hampshire, New York, Rhode Island, Vermont, and Washington, and state courts in Iowa, Massachusetts, New Jersey, and New Mexico) and the District of Columbia. The leap from Romer, Lawrence, and Windsor to Obergefell is not quite so stark as was the leap from Griswold to Roe, but the large difference in the laws' outlier status is plain. 

The petitioners' briefs by Obergefell, Tanco, DeBoer, and Bourke do not confront the key language in Heller. Three of the four quote the ancient-lineage non-immunity sentence (here at 54, here at 51, and here at 42) but none mention the commonsense-distinction sentence that follows. It is possible that petitioner-side amicus briefs, due this Friday, will do more to help the Court clarify the precise nature of tradition in equal-protection analysis, but the petitioners' briefs don't take on the task. 

The German and Dutch Founding-Era Translations of the Constitution
Mike Rappaport

Last  weekend, the Center for the Study of Constitutional Originalism at the University of San Diego held its Sixth Annual Works-in-Progress Conference.  I had thought I might blog about a couple of the papers.

One of the papers – Founding-Era Translations of the Federal Constitution by Christina Mulligan, Michael Douma, Hans Lind and Brian Patrick Quinn – involved the discovery of some new information about the original meaning of the Constitution.  At the time of the Constitution, significant portions of Pennsylvania and New York were respectively inhabited by German and Dutch speaking citizens.  As a result, the Constitution was translated into German and Dutch during the ratification contests in these states and these translations were relied upon by the German and Dutch speaking citizens.

For originalists, these translations represent an important new piece of evidence about the original meaning.  They are in some ways similar to commentary at the time that indicates the meaning of the Constitution.  But the translations differ in that they translate the entire Constitution.  And unlike contemporary dictionaries, the translations are in context – that is, rather than the modern originalist having to consult a dictionary with a number of word meanings, he needs only to review the word that the translator inserted into the specific clause. 

But there is a downside to these translations.  For modern English speakers to understand them, they must rely on people who have knowledge of 18th century German and Dutch.  The question is why modern people would have more knowledge of 18th century German and Dutch than of 18th century English.  While we would probably not, still this information is one more data point as to the meaning of the Constitution.

One interesting piece of information is that the German and Dutch translations seem to confirm the narrow understanding of the Commerce Power – that is, the commerce power extended to buying and selling rather than to all productive activities undertaken for profit.  The German and Dutch translations both suggest this meaning.

(Cross posted at the Liberty Law Blog)

More on Judicial Restraint from Evan Bernick and Greg Weiner
Michael Ramsey

At Huffington Post, Evan Bernick (Institute for Justice) responds to Greg Weiner: Professor: Who Needs Judges? Let's Put Our Constitutional Rights to a Vote.  From the opening:

Let's start with the judicial power. The judiciary was established to serve as an intermediary between the political branches and the people. The duty of judicial review obliges judges to ensure that the political branches do not act exceed the scope of the powers delegated to them. The Framers were well aware that what James Madison referred to in Federalist 10 as the "mischiefs of faction" could lead overbearing majorities and entrenched special interests to use government power to oppress minorities and further their own, private ends. Thus, Alexander Hamilton argued in Federalist 78 that constitutional limitations "can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void."

And in conclusion:

Proponents of constitutionally limited government must reject the false choice Weiner offers between elective despotism on the one hand and government-by-judiciary on the other. Judicial engagement offers a third way. By requiring the government in every case to demonstrate, with record evidence, that it is pursuing a constitutionally valid end through constitutionally legitimate means, judicial engagement ensures that the government offers us a sufficient reason when it restricts our liberty. If we seek to restore the rule of law established by the Constitution, we need judges to consistently hold the political branches accountable to it-- not leave our rights to be voted up or down.

Professor Weiner's original post is here.  He responds here: Judicial Activism Isn’t the Remedy Publius Prescribed: A Reply to Evan Bernick.

(The George Will column linked to yesterday connects the debate over judicial restraint to the Arizona Legislature case argued at the Supreme Court today:  "[T]he Arizona case is another legal log fueling the crackling fire of the conservative argument for a vigorously engaged rather than passive judiciary. Which is another reason not to wait until Wednesday [for King v. Burwell] to watch the court.").


The Meaning of "Legislature" on Monday
Michael Ramsey

The argument in the Arizona Legislature case is Monday 3/2.  Lyle Denniston previews the case for SCOTUSblog here.  

George Will  comments: Two reading lessons from the Supreme Court (also discussing King v. Burwell, argument on Wednesday).  He thinks the case is clear: 

Surely ... in writing the elections clause the Framers used the word “legislature” as it was and still is generally understood, to mean the representative body that makes a state’s laws. Arizona cannot strip its legislature of a power that flows to it from the U.S. Constitution.

My previous thoughts are here:  The Original Meaning of "Legislature."  Plus counterarguments from Seth Barrett Tillman and Gerard Magliocca.  I agree with Will that the language is clear (but I don't agree with his implication that it's clear how the Court will rule).  It's an important test for textualism, in my view.

(Interestingly, Will goes on to suggest that the voter initiative process that produced the Arizona system is itself unconstitutional as violating Article IV's guarantee clause -- direct democracy, in his view, not being part of a "Republican Form of Government."  At minimum, this seems much less obvious).


Marty Lederman on the Statutory Basis for DAPA
Michael Ramsey

At Balkinization, Marty Lederman: Judge Hanen's--and Michael McConnell's--mistakes about "affirmative action" in DAPA (responding to this article by Michael McConnell: Why Obama's Immigration Order Was Blocked).

Professor McConnell:

If this president can create a new legal status for aliens unlawfully present under the terms of the Immigration Act, future presidents will have the same authority to employ broad notions of “prosecutorial discretion” to gut the enforcement of whichever laws they dislike—using the excuse that “Congress has failed to act.”

The supporters of DAPA may well rue the day that presidents seized this kind of extralegal authority. Whatever immigration policy any of us may favor—and I, for one, would like to see major reform—we should all be able to agree that the executive branch must follow the law until it has been amended by Congress.

Agreed, says Professor Lederman, but in this case the statute authorizes the presidential actions through broad delegation (a possibility I acknowledged in my prior post on the matter):

So where do Judge Hanen and Professor McConnell go wrong?  Simply in this:  There is no basis for their underlying assumption that DHS would bestow upon DAPA-eligible aliens certain “benefits” that are not authorized by statute and by pre-existing regulations that have been promulgated pursuant to the notice-and-comment rulemaking process.

Extensive analysis follows.

(Josh Blackman has some different views on statutory authorization here).

Stephen Matthew Feldman: New Originalism or Eclecticism?
Michael Ramsey

Stephen Matthew Feldman (University of Wyoming - College of Law) has posted Constitutional Interpretation and History: New Originalism or Eclecticism? (28 BYU Journal of Public Law 283, 2014) on SSRN. Here is the abstract:

The goal of originalism has always been purity. Originalists claim that heir methods cleanse constitutional interpretation of politics, discretion, and indeterminacy. The key to attaining purity is history. Originalist methods supposedly discern in history a fixed constitutional meaning. Many originalists now claim that the most advanced method -- the approach that reveals the purest constitutional meaning -- is reasonable-person originalism. These new originalists ask the following question: When the Constitution was adopted, how would a hypothetical reasonable person have understood the text? This Article examines historical evidence from the early decades of nationhood to achieve two goals. First, it demonstrates that reasonable-person originalism is incoherent at its historical core. As an interpretive method, originalism cannot achieve its stated goal: to identify fixed and objective constitutional meanings. Contrary to originalist claims, historical research uncovers contingencies and contexts. More specifically, the evidence shows that reasonable-person originalim is historically unjustified. Early in the nation's history, neither lawyers nor laypersons would have suggested that constitutional interpretation should be based on the views of a hypothetical reasonable person. Second, the Article demonstrates that the historical evidence instead supports an alternative conception of constitutional interpretation. In the early decades, numerous Americans -- including framers, Supreme Court justices, and constitutional scholars -- used an eclectic or pluralist approach to constitutional interpretation. Depending on the case, an eclectic interpreter considered a shifting variety of factors, including original meaning, framers' intentions, practical consequences, and judicial precedents.

Larry Solum comments at Legal Theory Blog:

As Feldman recognizes, I do not invoke the reasonable person in my defense of public meaning originalism.  The best understanding of "public meaning" does not require the invocation of a hypothetical "reasonable person."  For example, in order to determine the public meaning of a word or phrase in 1787, we need to examine the relevant linguistic facts--patterns of usage at the time.  The best tool for such an investigation is corpus linguistics, which allows the examination of many instances of usage.  To the extent that the "reasonable person" could any role in such an investigation it would be purely as a heuristic (a way of thinking about the problem), and not as a normative standard.

That sounds right to me.


Eric Segall and Jonathan Adler on King v. Burwell
Michael Ramsey

The University of Pennsylvania Law Review Online has this debate between Eric Segall (Georgia State) and Jonathan Adler (Case Western): King v. Burwell and the Validity of Federal Tax Subsidies Under the Affordable Care Act.

On the textual issues, Professor Segall principally argues (footnotes omitted):

The plaintiffs rely on an [Affordable Care Act] section stating that subsidies will be available for certain low-income taxpayers who purchase health insurance from an "Exchange established by the State." They then argue that exchanges created by the federal government are not "established by the State," and therefore the IRS acted illegally by deciding to provide subsidies on federal exchanges. ...

The problem with the plaintiffs’ argument is that it ignores another section of the ACA, which states that, if the states do not create a health exchange as required by the first section, the federal government will establish "such exchange."  The authority given to the U.S. Department of Health and Human Services (HHS) is not to create "an" exchange, a "federal" exchange, or a "United States" exchange but quite specifically "such" exchange.

What does the word "such" connote in the context of the law? Given that the entire structure of the ACA relies on three essential components—one of which is the availability of federal subsidies—it is no surprise that the IRS read the statute to allow for subsidies on both state and federal exchanges. The only legal issue is whether the clear language of the entire law makes that reading impermissible because it is an unreasonable interpretation of the statutory scheme. ...

The word "such" according to Black’s Law Dictionary means something "having just been mentioned." This clear parsing of the relevant statutory language shows that the government should win (in both the hypothetical and the real case).

He adds as a second textual argument:

[A]s health law expert Nicholas Bagley has argued, if the law is read as the plaintiffs ... argue, federal exchanges would not be able to provide insurance to anyone.  The ACA says that only people who "reside[] in the State that established the Exchange" may purchase insurance from the exchanges. If Congress really meant to distinguish between state-established exchanges and federal exchanges, the law would seem to preclude people residing in a state with a federally established exchange from purchasing insurance from that exchange. Congress could not possibly have intended for HHS to create federal exchanges incapable of selling health insurance.

He also has some purpose arguments, plus Chevron, but apparently the foregoing are the central textual arguments as he sees them.  The second of these seems potentially strong (the first one does not move me much).

Professor Adler responds, first emphasizing (as one would expect) the "established by the State" language; he continues:

Section 1321 provides that should a state fail to create the "required exchange"—that is, the exchange required under section 1311—"the Secretary shall . . . establish and operate such Exchange within the State and the Secretary shall take such actions as are necessary to implement such other requirements." But this language does not establish the proposition that an exchange established by HHS is an exchange "established by the State." Section 1321 expressly refers to HHS as the entity that must "establish" the exchange and provides that HHS does so "within" the state, rather than on the state's behalf. And were there any doubt that HHS is not a "State" under the ACA, section 1304 expressly provides that "'State' means each of the 50 States and the District of Columbia."

On the second point, Professor Adler responds:

Professor Segall claims that, were the Court to accept the plaintiffs' interpretation of the ACA, "federal exchanges would not be able to provide insurance to anyone" because section 1312 provides that "qualified individuals" must be residents of "the State that established the Exchange." Yet the relevant statutory provision, when read in context, creates no such absurd result and is readily harmonized with the rest of the statutory text. Section 1312's definition of a "qualified individual" who may "enroll in any qualified health plan available to such individual" is—like the other requirements of Part II of Subtitle D (sections 1311 through 1313)—addressed to the states on the assumption that they have complied with section 1311's command that each state establish its own exchange. This requirement is conditioned on the state's cooperation. Should a state fail to cooperate, however, the residency requirement has no effect, as there is no state-established exchange to which it may apply.

I'm interested in King v. Burwell mostly on the question whether it is truly a text versus purpose case, or whether, to the contrary, the government has a strong textual argument.  I'm still not sure what to think after these posts.

I also like the case as an example of statutory originalism -- everyone seems focused on the text and the intent of the Congress that enacted it.  Professor Segall, for example, relies (in his conclusion) on "clear text and unassailable context" to show what the ACA "intended."

RELATED: Professor Adler links to video of a King v. Burwell event at the Heritage Foundation here (with Carrie Severino of the Judicial Crisis Network, Simon Lazarus of the Constitutional Accountability Center, and Robert Weiner of Arnold & Porter).

ALSO:  More from Josh Blackman (and Ilya Shapiro) here.

(The King v. Burwell oral argument is Wednesday, 3/4 [date corrected]).