12/05/2019

Michael Greve on Justice Gorsuch's "A Republic, If You Can Keep It"
Michael Ramsey

At Law & Liberty, Michael Greve: Three Cheers (Very Nearly) for Justice Neil M. Gorsuch.  From the introduction:

When Richard Reinsch asked me to review Justice Neil M. Gorsuch’s recent book, A Republic, If You Can Keep It, I entertained some doubts: I suspected that I might like it, but know full well that I have never written and probably cannot write in a gentle key. To borrow one of William F. Buckley’s lines: Sarcasm—snark—isn’t my preferred mode of discourse, it’s my only mode of discourse, one wholly unsuited to this occasion. But let’s see if we can make this work.

With the generously acknowledged assistance of two law clerks, Justice Gorsuch has collected some of his speeches, excerpts from law review articles, and extracts from some of his written opinions, all edited for length and stripped of footnotes and other distractions. The Justice complements and rounds out the collection with anecdotes and reflections on his family background; his beloved West; colleagues, friends, mentors, and role models; and life-shaping moments, including his nomination and appointment to the U.S. Supreme Court.

An overused aphorism for a title; snippets and war stories: that cannot work, you’d think. But it does work, splendidly. Justice Gorsuch makes good on his choice of the title (see below). The essay and opinion excerpts hold together and often convey insights in a way that is not easily replicable in a more conventional format. And the author has a point to make (several excellent points, in fact). This isn’t a vanity project; it’s a serious work of civic education.

And from the conclusion:

I haven’t managed to get the tone of those observations quite right. They’re meant not as criticism but as encouragement. A constitutional rehabilitation project of the kind I’ve hinted at cannot be accomplished, and should not be attempted, in a book intended for a broad audience. It cannot be accomplished in a handful of individual judicial opinions, either; it is a long-term project for the entire Court. It will require judicial courage, patience, a certain humility, and a deeply grounded understanding of the Constitution and the way it’s supposed to work.

Neil M. Gorsuch understands all that, and he possesses those virtues in spades. To our great good fortune, he has just the right day job.

12/04/2019

Aditya Bamzai: Delegation and Interpretive Discretion
Michael Ramsey

Aditya Bamzai (University of Virginia School of Law) has posted Delegation and Interpretive Discretion: Gundy, Kisor, and the Formation and Future of Administrative Law (133 Harvard Law Review 164 (2019)) (37 pages) on SSRN.  Here is the abstract:

Congress is supposed to write laws. So much seems apparent from the constitutional design, which in no uncertain terms vests “[a]ll legislative Powers herein granted . . . in a Congress of the United States” and forces Congress to exercise those “Powers” through an elaborate process of enacting the same legal text in two legislative chambers and presenting the passed bill to the President for approval. But in the modern state, and for quite some time, Congress has delegated authority to write rules and regulations with the status of laws to administrative agencies situated within the executive branch. In turn, those agencies have written rules and regulations affecting the private lives of citizens, and litigants have sometimes challenged in court an agency’s authority to promulgate, and to interpret, a rule. Two critical issues that arise out of this arrangement are the limits, if any, on Congress’s power to delegate such rulemaking authority to agencies and the interpretive methodology that courts ought to apply when a private party disagrees with the executive branch’s interpretation of one of those rules.

This Comment addresses two cases decided this past Term, Gundy v. United States and Kisor v. Wilkie, that appeared poised to break substantial new ground on these two issues. In both Gundy and Kisor, the Court fractured, producing plurality opinions that ensure the questions the Court addressed in both cases will remain live ones for years to come. Notwithstanding the Gundy and Kisor opinions’ fractured quality, setting the two cases side by side highlights the interrelated nature of administrative law doctrines, as well as the current Court’s understanding of administrative law’s two foundational codes, the Constitution and the Administrative Procedure Act. This Comment seeks to assess whether the Gundy and Kisor opinions get the questions that they address right and what the opinions tell us about the future.

12/03/2019

James Durling & Garrett West: Appointments Without Law
Michael Ramsey

James Durling (Independent) and E. Garrett West (Independent) have posted Appointments Without Law (105 Virginia Law Review 1281 (2019)) (76 pages) on SSRN.  Here is the abstract:

Debates about the Appointments Clause tend to turn on drawing the right distinctions. This Article argues that the Appointments Clause draws a little-recognized distinction between the officers specifically enumerated by the Clause (“Ambassadors,” “other public Ministers and Consuls,” and “Judges of the supreme Court”) and the officers referred to only as a residual category (“all other officers of the United States”). The basic claim is that enumerated offices need not be “established by Law”—that is, by congressional legislation—but are established instead by the Constitution or the law of nations.

Although the “enumerated-residual distinction” has been essentially ignored by judges and scholars, it raises a basic interpretive puzzle. The Appointments Clause appears to give the President the same authority to appoint each category of enumerated officers. But in practice, we have construed the President’s authority to appoint diplomats and Supreme Court Justices quite differently. Since the Founding, the President has appointed diplomats without congressional authorization, but at the same time everyone has assumed that Congress must pass a statute before the President may appoint any Justices.

This Article argues that the President has the authority to appoint both diplomats and Justices without congressional authorization. This view accords with the Constitution’s text, suits the unique constitutional status of the Supreme Court, and was advanced by political actors soon after the Constitution’s ratification. But even if one rejects the strongest version of this argument, the Article’s core insight—that the Appointments Clause requires parallel treatment of diplomats and Justices—has a series of potential implications for constitutional doctrine.

12/02/2019

James Rogers on Incorporating the Establishment Clause
Michael Ramsey

At Law & Liberty, James R. Rogers (Texas A & M, Political Science): Incorporating the Establishment Clause, Wrongly.  From the introduction: 

In a supreme irony, the First Amendment’s Establishment Clause, incorporated against state governments by the Supreme Court via the Fourteenth Amendment in 1947, is precisely the type of national usurpation of state government policies that the Clause was adopted to prohibit.

The First Amendment’s religion clauses form the well-known start to the Bill of Rights, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” The Amendment includes two different religion clauses, an Establishment Clause and a Free Exercise Clause. To understand how these clauses apply to state governments, we need first to understand the First Amendment itself, and then we need to understand the liberty guarantee of the Fourteenth Amendment, which is the means by which some parts of the U.S. Constitution’s Bill of Rights have come to apply to state governments.

While some overlap exists between the two clauses, each serves broadly different functions. When the U.S. Supreme Court first applied the Establishment Clause to the states in 1947—in Everson v. Board of Education—it did so without discussion of the nature of the Establishment Clause itself. The Court merely appealed to dictum from a Free Exercise case from 1943 which struck down a Pennsylvania tax on the sale of religious merchandise. The Court’s decision to incorporate the Establishment Clause was subject to scholarly criticism early on. The debate over the appropriateness of incorporating the Establishment clause revived in the early 2000s as a result of a series of concurring opinions by Justice Thomas.

The criticism of incorporating the Establishment Clause of the U.S. national Constitution and applying it to restrict state governments via the liberty guarantee of the Fourteenth Amendment arose because incorporation is based on a fundamental misreading of the Establishment Clause, and a misunderstanding of the nature of religious establishments. . . . 

(Thanks to Mark Pulliam for the pointer.)

12/01/2019

Hassan Jabareen on Originalism and Israeli Constitutionalism
Michael Ramsey

Hassan Jabareen (Hebrew University of Jerusalem) has posted The Paradigm of Originalism: Israeli Constitutional Law and Legal Thought (Israel Law Review 52(3) 2019, pp 427–454) (28 pages) on SSRN.  Here is the abstract:

This review essay challenges three main claims about originalism in American legal thought. While it affirms that originalism could be the Law of a legal system, it first challenges the mainstream idea that American originalism is the paradigmatic case in theory and in practice. Second, the essay confronts the normative justification that originalism ensures democracy based on the rule of law. Third, it interrogates the dichotomy between living constitutionalism and originalism regarding the use of history by arguing that originalism is a form of hegemony. The case study analyzed in this article is Israeli legal thought and practice after the enactment of the 1992 Basic Laws, with the focus on the right of equality.

11/30/2019

Saikrishna Prakash on Ratifying the Equal Rights Amendment
Michael Ramsey

In the LA Times, Saikrishna Prakash (Virginia): Sorry, Virginia, you can’t revive the Equal Rights Amendment.

In January, when a new Democratic majority takes over in Virginia, the Commonwealth likely will become the 38th state to ratify the Equal Rights Amendment. At that point, the proposal will cross the three-quarters threshold for inclusion in the Constitution, almost a half century after the amendment went to the states. Understandably, the ERA’s supporters will be jubilant. Though I endorse the ERA, I can’t join them. Virginia’s ratification will be stillborn and the Equal Rights Amendment will still be dead. Under a proper reading of the Constitution, it perished decades ago.

When Congress sent the ERA to the states in 1972, the accompanying resolution provided that that the amendment would be valid only if ratified by three-fourths of the states in a little over seven years. As that expiration date drew near, Congress extended it an additional three years. The extension was controversial because it changed the terms of the ratification period midstream, and because it was not passed with a two-thirds majority in both chambers, as the 1972 resolution had been. To add to the uncertainty, by the time of the extension, a handful of states had voted to rescind their ratifications, a move as legally murky as monkeying with the deadline.

And from later in the analysis:

To be sure, the Constitution says nothing directly about time frames for lawmaking or amendment passage, but that doesn’t mean it doesn’t speak at all on the topic. It assumes and implies a great deal. No one thinks that Congress can pass laws “inter-generationally,” with the House voting for a bill in the 18th century, the Senate in the 19th century and the president receiving it and signing it into law in the 20th. Though the Constitution does not expressly forbid this wild scenario, it implicitly does. The same is true for amendments, both their proposal and their ratification. The various acts necessary to make an amendment cannot stretch across decades or centuries.

To take another example, the Constitution requires federal legislators to muster a majority to make laws. Such “majority rule” only makes sense within time limits. If Senators voted for something 50 years ago, how could those votes reasonably be added to ones cast today by new senators to conjure up supposed majority support for a bill? Or consider the question in contractual terms: Virginia’s attempt to ratify the ERA 47 years after it was sent to the states is akin to a person attempting to accept a contractual offer made over 50 years ago. It’s impossible.

(Via How Appealing).

I'm not sure I agree as a general matter.  Certainly nothing in the Constitution says directly (or even indirectly) that ratification periods have an expiration date.  It's true, of course, that one House's passage of legislation expires, but that's implied from the nature of the legislative process.  There's nothing really analogous for amendments.  In treaty law, by contrast, the time for ratification of a treaty does not expire, unless the treaty specifies a ratification period.  I don't see why that shouldn't also be true of amendments.  (Also I like the Twenty-seventh Amendment.)

As to the Equal Rights Amendment, though, I agree on the specifics.  The initial proposed amendment specified a fixed period for ratification.  Congress extended the period by legislation, but I think that itself is unconstitutional (or, rather, has to be done by a new proposed amendment).  Congress cannot by ordinary legislation change a proposed amendment, and the specified time for ratification was part of the original agreed proposal.  Consider, for example, if the original proposed amendment specified, say, a 10 year ratification period but Congress subsequent changed that to a five-year period by ordinary legislation.  The purported shortening of the period seems plainly invalid.  So too for a lengthening.

11/26/2019

Justice Kavanaugh Provides Another Sign the Nondelegation Doctrine May be Revived
Mike Rappaport

Last term, the Supreme Court decided Gundy v. United States, which reviewed a large and largely standardless delegation of power to the Attorney General.  The Court approved of the delegation in a 5 to 3 vote, with a strong dissent by Justice Gorsuch arguing on originalist grounds in favor of the revival of a more limiting nondelegation doctrine. 

The significant fact about the case was that Justice Kavanaugh did not participate because he was not confirmed at the time of the oral argument.  As a result, Justice Alito announced that he would vote in favor of the delegation in the case.  But Alito said he would seriously consider the issue of reinvigorating the nondelegation doctrine if Justice Kavanaugh were to participate in the future and there were potentially five votes in favor of strengthening the doctrine.  But until then, he would vote in favor of the delegation.

Put aside the curiousness of Justice Alito’s position.  And put aside the puzzling fact that the Court did not order a reargument to allow Kavanaugh’s participation, even though it did so in another important case (the Knick Takings Case).  Still, this signaled that four or five members of the Court might be ready to reinvigorate the nondelegation doctrine.

Now, there is more evidence that the doctrine might be resurrected.  Justice Kavanaugh, in a statement respecting the denial of certiorari, seemed to indicate that he was open to reviving the nondelegation doctrine.  Kavanaugh wrote:

In the wake of Justice Rehnquist’s opinion, the Court has not adopted a nondelegation principle for major questions.  But the Court has applied a closely related statutory interpretation doctrine: In order for an executive or independent agency to exercise regulatory authority over a major policy question of great economic and political importance, Congress must either: (i) expressly and specifically decide the major policy question itself and delegate to the agency the authority to regulate and enforce; or (ii) expressly and specifically delegate to the agency the authority both to decide the major policy question and to regulate and enforce.

The opinions of Justice Rehnquist and JUSTICE GORSUCH would not allow that second category—congressional delegations to agencies of authority to decide major policy questions—even if Congress expressly and specifically delegates that authority. Under their approach, Congress could delegate to agencies the authority to decide less-major or fillup-the-details decisions. 

Like Justice Rehnquist’s opinion 40 years ago, JUSTICE GORSUCH’s thoughtful Gundy opinion raised important points that may warrant further consideration in future cases.

Another thing that Kavanaugh’s statement makes clear is that he would prefer the nondelegation doctrine to be framed in terms of the major questions doctrine.  When he discusses the revival of the nondelegation doctrine, he frames it in terms of “major policy questions of great economic and political importance.” 

This last point is important.  One significant advantage of employing the major questions standard to the nondelegation doctrine is that one can argue that it is an existing standard.  If the Court currently employs the major questions doctrine to determine whether Chevron deference should be given to an agency, then it is harder to argue that the same standard is too unclear to apply to questions of whether delegations are constitutional.  

Stay tuned. 

11/25/2019

Evan Bernick: Faithful Execution
Michael Ramsey

Evan D. Bernick (Judicial Clerk, Judge Diane Sykes) has posted Faithful Execution: Where Administrative Law Meets the Constitution (Georgetown Law Journal, Vol. 108, No. 1, 2019) (71 p;ages) on SSRN.  Here is the abstract:

The administrative state and administrative law are commonly understood to be the product of statutes, judicial doctrines, and agency practices rather than constitutional text. In recent years, however, federal courts have been forced to confront important constitutional questions concerning the President’s exercise of administrative discretion under broadly worded federal statutes. Among those questions: (1) Does the Constitution impose any independent constraints on the administrative discretion that is available to the President under the text of federal statutes? (2) If so, are judges obliged to determine whether that discretion has been abused? and (3) How should judges make such determinations?

This Article argues that the Take Care Clause of Article II, Section 3 constrains the President’s administrative discretion and that judges are obliged to determine whether that discretion has been “faithfully” exercised. It then constructs a faithful execution framework that judges can use to implement the “letter” — the text — and the “spirit” — the functions — of the Take Care Clause. To that end, it makes use of a theory of fiduciary government that informed the content and structure of the Take Care Clause and draws upon well-established administrative law doctrines. It uses the faithful execution framework to evaluate President Barack Obama’s 2014 Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program and President Donald Trump’s 2017 travel bans. By so doing, this Article shows that central components of modern administrative law rest upon sound constitutional foundations. It also provides judges with constitutionally inspired tools that can be used to promote presidential accountability, discipline presidential discretion, secure the rule of law, and thwart presidential opportunism.

(Via Larry Solum at Legal Theory Blog, where it is "Download of the Week").

11/24/2019

Keith Whittington (and Alexander Hamilton) on Impeachable Offenses
Michael Ramsey

At Lawfare, Keith Whittington: Must Impeachable Offenses Be Violations of the Criminal Code?  From the beginning:

Supporters of President Trump have regularly argued that there can be no impeachment without a violation of the criminal code. So long as the Mueller investigation held the possibility that the president might be linked to actual criminal activity, the question of whether impeachable offenses had to be indictable crimes was not a particularly salient one for either the administration’s critics or its defenders. Given that the House has now focused its attention specifically on the administration’s actions in regard to Ukraine, the question of whether the House could constitutionally pursue an impeachment in the absence of a violation of the criminal code has become more pressing.

...

Despite what Trump’s supporters say, however, the president can commit an impeachable high crime without violating the federal criminal law. To conclude otherwise would be to ignore the original meaning, purpose and history of the impeachment power; to subvert the constitutional design of a system of checks and balances; and to leave the nation unnecessarily vulnerable to abusive government officials.

...

Examining the relevant history, however, makes clear that this understanding of impeachment is unnecessarily constrained. The constitutional framers were familiar with the impeachment device from English history, and after independence, it was quickly incorporated into American state constitutions. In English parliamentary practice, impeachment was a tool for checking the king and his ministers, and the term “high crimes and misdemeanors” developed within that practice to refer to misconduct by public officers. William Blackstone noted that “oppression and tyrannical partiality ... in the administration and under the colour of their office” could often escape ordinary justice and was therefore accountable “by impeachment in parliament.” Famously, more than a century before the American Revolution, the House of Commons had impeached the Earl of Strafford for attempting “to subvert the Fundamental Laws and Government of the Realms ... and instead thereof, to introduce Arbitrary and Tyrannical Government.” The British imperial officer Warren Hastings was embroiled in an impeachment scandal at the time of the Philadelphia Convention, and the House of Commons eventually charging him with “arbitrary, illegal, unjust, and tyrannical Acts” that rendered him “guilty of High Crimes and Misdemeanors.” ...

I'm inclined to agree.  Note, though, that it's an originalist argument (by an originalist scholar).  Nonoriginalists might want to be careful embracing it.

RELATED:  Jonathan Adler has more at Volokh Conspiracy: Hamilton on Impeachment.  Quoting Hamilton, Federalist 65:

A well-constituted court for the trial of impeachments is an object not more to be desired than difficult to be obtained in a government wholly elective. The subjects of its jurisdiction are those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself.

11/23/2019

New Book: Theatres of Pardoning by Bernadette Meyler
Michael Ramsey

Recently published: Theatres of Pardoning (Cornell University Press 2019), by Bernadette Meyler (Stanford).  Here is the book description from Amazon:

From Gerald Ford's preemptive pardon of Richard Nixon and Donald Trump's claims that as president he could pardon himself to the posthumous royal pardon of Alan Turing, the power of the pardon has a powerful hold on the political and cultural imagination. In Theaters of Pardoning, Bernadette Meyler traces the roots of contemporary understandings of pardoning to tragicomic "theaters of pardoning" in the drama and politics of seventeenth-century England. Shifts in how pardoning was represented on the stage and discussed in political tracts and in Parliament reflected the transition from a more monarchical and judgment-focused form of the concept to an increasingly parliamentary and legislative vision of sovereignty.

Meyler shows that on the English stage, individual pardons of revenge subtly transformed into more sweeping pardons of revolution, from Shakespeare's Measure for Measure, where a series of final pardons interrupts what might otherwise have been a cycle of revenge, to later works like John Ford's The Laws of Candy and Philip Massinger's The Bondman, in which the exercise of mercy prevents the overturn of the state itself. In the political arena, the pardon as a right of kingship evolved into a legal concept, culminating in the idea of a general amnesty, the "Act of Oblivion," for actions taken during the English Civil War. Reconceiving pardoning as law-giving effectively displaced sovereignty from king to legislature, a shift that continues to attract suspicion about the exercise of pardoning. Only by breaking the connection between pardoning and sovereignty that was cemented in seventeenth-century England, Meyler concludes, can we reinvigorate the pardon as a democratic practice.

11/22/2019

More Fun with "Officers" from Blackman & Tillman
Michael Ramsey

In The Atlantic, Josh Blackman & Seth Barrett Tillman: The Weird Scenario That Pits President Pelosi Against Citizen Trump in 2020.  From the introduction:

Assume that President Donald Trump is impeached and removed from office. At that point, Mike Pence would become president. The position of vice president would remain vacant until Congress confirmed a replacement, nominated by the president.

This shift in positions could result in a very unlikely possibility: If, prior to the confirmation of a new vice president, President Pence were to become unable to discharge the office, then Nancy Pelosi, the speaker of the House, would assume the office of the president under the Presidential Succession Act of 1947.

Or would she? Two prominent constitutional-law professors contended in 1995 that the Succession Act now in force is unconstitutional. And a recent New York Times op-ed agreed: Legislators, such as the speaker of the House, cannot be elevated to the presidency, the thinking goes.

This theory, if correct, risks throwing the United States and the entire free world into a state of chaos. The speaker and the secretary of state (the next-in-line, nonlegislative officer) could both claim, with some legitimacy, to be president. Bush v. Gore would be tame by comparison.

A better reading of the Constitution, however, gives Congress the power to place Nancy Pelosi second in line for the presidency. But, as we’ll get to below, that same reading has an unexpected implication: Contrary to common belief, after removing the president from office, the Senate cannot disqualify him from being elected to the White House a second time.

11/21/2019

Segall on Descriptive and Normative Theories of Originalism
Mike Rappaport

Eric Segall raises the important distinction between two different types of originalist theories.  One type of theory – a descriptive theory – holds that originalism has been the dominant approach to constitutional interpretation throughout American history and then uses this prevailing approach as the main (or at least one important) argument for using that approach today.  Another type of theory – a normative theory – acknowledges that originalism has not been employed for significant portions of American history, especially since the New Deal, but argues that originalism should still be employed today based on normative arguments. 

Eric places me in the latter grouping, which is correct, but with one significant amendment.  Under my approach to constitutional interpretation (written with John McGinnis), the early interpretive approaches to the Constitution, beginning at the time of the Constitution, were originalist.  Although these early approaches could differ (as with the disagreements between Thomas Jefferson and John Marshall), the various dominant approaches at the time were all versions of originalism.  It is only as the years passed, and especially beginning in the New Deal, that constitutional interpretation came to be inconsistent with originalism.  (Thus, I agree with Mike Ramsey that the early interpretations of the Constitution were originalist and that it is only over time that they become largely nonoriginalist.)       

Some advocates of the descriptive approach criticize the normative theory as “mere law reform.”  The idea seems to be that the most important arguments for originalism are based on what is the current law and that other arguments are of lesser weight.  I disagree.  If one employs a positivist theory of law, then the case for following the law may be weak, because the law might be normatively unattractive.  Moreover, in the case of the U.S. Constitution, the Constitution’s original meaning ended up being changed during the New Deal without acknowledgment of what was occurring and without constitutional amendments – a quite normatively unattractive process.    

Finally, I should clarify my position on the Originalist Positivism of scholars such as Will Baude and Stephen Sachs, who are normally treated as within the descriptive group.  In writing this post, I don’t want to be seen as necessarily rejecting their position that originalism is the law today.  Baude and Sachs have a sophisticated defense of their claim.  Whether one accepts that view turns on disputed questions within positivism and on the content of the rule of recognition.  I don’t have strong views about these matters.  But I should note two aspects of their argument.  First, the case for originalism for me does not turn on these disputed questions, but instead on a variety of other, principally, normative arguments.  Second, even if one does accept Baude and Sachs’s view of these matters, it does not change the fact that large portions of our current law do not conform to the Constitution’s original meaning.  

The Original Constitutional Meaning of Bribery as Applied to the Ukraine Scandal
Andrew Hyman

Giles Jacob wrote the leading law dictionary of the founding era, and he defined bribery as, “[T]he receiving, or offering, any undue reward, to or by any person concerned in the administration of public justice, whether judge, officer, etc., to act contrary to his duty….” 

There is also a modern federal statutory definition of bribery, but it does not seem relevant. The general federal bribery statute is at 18 U.S.C. 201, but only defines bribery “for purposes of this section,” and even then it only applies to bribing United States officials rather than foreign officials.  There is also the Foreign Corrupt Practices Act which also refers to “anything of value” but apparently does not define or even use the words “bribe” or “bribery.”  Congress could hypothetically write a statute about what it means to “bribe” a foreign official, and that statute might be relevant to the Impeachment Clause of the Constitution, but only to clarify or detail the constitutional term “bribery” rather than to enlarge or expand it; this is because the rule of construction noscitur a sociis applies, and therefore a “high crime or misdemeanor” within the meaning of the Constitution cannot be less serious than bribery and treason were in 1789. 

One of the current issues in the impeachment hearings is whether promising a visit to the White House could be enough to impeach, even if there is insufficient evidence of a monetary bribe.  As Giles Jacob wrote, “To take a bribe of money though small, is a great fault….”  So any amount of money could constitute a bribe for impeachment purposes, though the higher the better.  As to payments that basically have no market value, puny or trivial rewards probably cannot be bribery or at least cannot be high bribery.  For example, offering gratitude, applause, a pat on the back, or a public endorsement would not be enough to be what Jacob called an “undue reward.”  Probably offering a mere visit to the White House would fall into that same category.  But offering hundreds of millions of dollars would surely be enough, provided of course that it is offered to induce a violation of duty.

Another current issue is whether the Impeachment Clause refers to the President accepting bribes, as opposed to the President offering bribes.  From a textual point of view, it does not matter whether the President of the United States is the offerer or the offeree, even though the framers were probably more concerned that he would be the offeree. James Iredell  said, "I suppose the only instances, in which the President would be liable to impeachment, would be where he had received a bribe, or had acted from some corrupt motive or other" (emphasis added).  Textually, though, there is no distinction between giving and receiving a bribe, and Jacob covered both (see the first paragraph of this post).  Perhaps accepting a bribe might be a “higher” crime than offering one, but both are potentially impeachable.

A further current issue is whether the deal has to be consummated for the offense to be impeachable.  The answer is no.  Jacob wrote that, “if a judge refuse a bribe offered him, the offerer is punishable,” and of course that applies equally to “judges” as to any other official.  So no consummation is needed for the offerer to be held liable, although it’s usually much more difficult to prove that a bribe was offered if it was never consummated. 

There are currently two potential bribes at issue.  Chronologically, the first potential bribe was Joe Biden withholding aid to Ukraine until the Ukrainian government fired a prosecutor who was widely deemed to be corrupt; complicating that matter is the fact that Biden’s son’s company (Burisma) may have been an actual or potential target of that fired prosecutor.  The second potential bribe was when President Trump suggested that the new President of Ukraine (Zelensky) investigate various matters pertaining to the 2016 election and/or Burisma and/or Joe Biden.

Regarding the allegation that Joe Biden offered a bribe to get the prosecutor fired, he may have benefited from the firing, but there was no violation of duty by Ukrainian officials when they fired that prosecutor because they had other good reasons besides helping Biden’s personal situation with his son at Burisma.  Likewise, even supposing Trump was eager to get an electoral advantage over Biden in the 2020 election by having Democratic frontrunner Biden investigated by Ukrainian authorities, any failed attempt by bad actors in Ukraine to buy influence with an American Vice-President would be well worth investigating and punishing.  Foreigners who try to bribe high-ranking American officials (even incorruptible ones) represent perhaps the most dangerous form of foreign corruption, and so Trump would have had every reason to single out that sort of corruption for special attention, and it would be no violation of duty for a Ukrainian President to look into a failed bribery attempt.

It is troubling that Trump may have wanted Zelensky to publicly announce an investigation of Burisma in exchange for a White House visit, if not in exchange for military aid. After all, usual best practice is for investigators to keep quiet about their investigations until they obtain enough evidence to actually make an accusation, but Trump understandably might have wanted Zelensky to publicly commit to some sort of investigation to ensure that Zelensky would not renege on the investigation once he got the U.S. money.  

Here is a key exchange between Trump and Zelensky:

President Trump: There's a lot of talk about Biden's son, that Biden stopped the prosecution and a lot of people want to find out about that so whatever you can do with the Attorney General would be great. Biden went around bragging that he stopped the prosecution so if you can look into it... It sounds horrible to me.

President Zelensky: I wanted to tell you about the prosecutor. First of all, I understand and I'm knowledgeable about the situation. Since we have won the absolute majority in our Parliament, the next prosecutor general will be 100% my person, my candidate, who will be approved, by the parliament and will start as a new prosecutor in September. He or she will look into the situation, specifically to the company that you mentioned in this issue. The issue of the investigation of the case is actually the issue of making sure to restore the honesty so we will take care of that and will work on the investigation of the case.

So, it looks like Zelensky agreed to investigate something, though perhaps not all Trump had hoped for, but maybe enough to satisfy Trump.  Judging by this transcript, Trump was not asking Zelensky to go beyond what the U.S. Attorney General would approve, and as far as I know the U.S. Attorney General has never approved any joint U.S.-Ukrainian investigation of bad actors at Burisma who attempted to buy influence with Joe Biden, much less an investigation of Joe Biden himself.  

It is fortunate for everyone that the House of Representatives is currently focusing on a “bribery” charge, because the original meaning of that word is much clearer and more relevant than the more nebulous “high crimes and misdemeanors” term.  Even if the charge of “bribery” was selected by a focus group, it may expedite resolution of the controversy.

MICHAEL RAMSEY ADDS:  Here are some other views of the issue, from Carissa Byrne Hessick (North Carolina) at Prawfsblawg and Ben Berwick & Justin Florence (Protect Democracy) at Lawfare.

But I'm with Andrew on this one (only maybe more so).  Without expressing a view on high crimes and misdemeanors, the bribery argument seems strained to me.  I don't see either (in Jacob's words) an "undue reward" or an "act contrary to [one's] duty" on the Ukrainian side.  As far as I can tell, President Zelensky did not receive anything he shouldn't have nor do anything he shouldn't have.  I would be very surprised if there were any founding-era precedent for applying the term "bribery" to anything like this situation.

Put another way, I presume that exchanges of political favors are routine in domestic politics and (especially) in foreign affairs, and if we start calling them bribery a lot of surprised people are going to jail.  For example, suppose a member of Congress agrees to vote for a bill benefiting another member's district, with the understanding (or hope) that the other member will vote for a different bill benefiting the first member's district.  I doubt members of Congress think this is bribery.

Robert George on Textualism in the Title VII Cases
Michael Ramsey

At National Review, Robert P. George (Princeton): Counterfeit Textualism.  From the beginning: 

In 1964, Congress adopted Title VII, which forbids employers to discriminate based on sex. No one suggests that any member of Congress or the public then understood Title VII to ban discrimination based on “sexual orientation” or “gender identity.” Did generations of Americans miss something hidden in plain sight? Justice Elena Kagan thinks so. And she believes she can prove it with a knockdown “textualist” argument. But that argument fails for a decisive reason — one foreshadowed by Justice Neil Gorsuch’s expert dismantling of Kagan’s analysis in an earlier anti-discrimination case, Masterpiece Cakeshop v. Colorado Civil Rights Commission.

In the Title VII cases, Kagan proposes to test for sex discrimination by asking what would happen if an employee’s sex were flipped and all else were held constant. Thus, she would say, a company that fires Riley for being a woman who dates women is discriminating based on sex, because it would have kept Riley on if she were a man who dates women.

Clever, right? But the argument is fallacious. If it seems like a knockdown, that’s only because the objectionable moves were made offstage and then smuggled into the argument’s setup, diverting our gaze from the only fair reading of Title VII.

The whole appeal of Kagan’s argument is that it purports to flow directly from the text (“discriminate”), without any contestable moves along the way. Once you see that this is false, the argument loses all appeal, and its proponents have to fall back on dubious premises that cut against the only reasonable reading of the text. As we’ll see, the “textual” part of Kagan’s “textualist” case is doing no work whatsoever.

The hypothetical scenario described above doesn’t actually hold “all else constant.” In changing Riley’s sex while holding constant the sex of Riley’s dating partners, it flips a second factor, too: Riley’s “sexual orientation,” which has gone from homosexual to non-homosexual (or, if you prefer, from “gay” to “straight”).

11/20/2019

Eric Segall on the Descriptive/Normative Gap in Originalist Theory
Michael Ramsey

At Dorf on Law, Eric Segall: Solum on Posner and the Descriptive/Normative Gap in Originalist Theory.  From the key discussion: 

Solum's praise of Posner raises a question I have tried to get academic originalists to engage in but, with one exception (Professor Christopher Green), with little success, and it is an enormously important question for constitutional theory. On the one hand, many originalists, including Solum in his congressional testimony, argue that originalism and textualism have a long pedigree and have traditionally (maybe until the Warren Court), been "the predominate view of constitutional interpretation.... [F]or most of our nation’s history, the Supreme Court has made a good faith effort to follow the constitutional text."

But, on the other hand, many originalists argue that the Court has never been sufficiently originalist and that needs to change. I am quite confident, as I've written here before, that Professor Barnett along with noted academic originalists Michael Rappaport, Richard Kay, Michael Paulsen, and many others, believe that the "predominate view" of constitutional interpretation over the course of the Court's history has been closer to living constitutionalism than originalism, and that is why these scholars write the way they do. They would likely view their work as mostly normative, not descriptive.

Here's my attempt at an answer, not on behalf of any particular person but generally the sense of where conventional originalists are on the matter:  (a) textualist originalism was the leading (or at least a leading) approach to constitutional interpretation in the founding era and for some time after, although -- judges being human -- there are always examples of departures; (b) somewhere in the course of constitutional history -- there is debate about when it materially began -- the Court started to lose its way, shading more and more into nonoriginalist approaches, culminating in the late Warren Court; but (c) in any event and irrespective of the history, originalism is the correct theory of interpretation for normative reasons.

Professor Segall, relying on the outstanding and provocative work of Jeremy Telman, says that the founding era (especially the Marshall Court) was not originalist.  With all respect to Professor Telman, I disagree (though the disagreement may turn on what it means to be originalist).  As Telman shows, Marshall sometimes justified his opinions in part by results.  But Marshall also justified them on originalist/textualist grounds, and I don't think there is any major Marshall (or earlier) decision that isn't very arguably consistent with the text's original meaning.  (As to earlier decisions one might point to Chisholm v. Georgia but I think that decision is arguable justifiable on textualist grounds despite its sharp repudiation in the Eleventh Amendment.)

11/19/2019

Josh Blackman & Seth Barrett Tillman on Impeachment without a Chief Justice (Updated)
Michael Ramsey

At Balkinization (guest-posting), Josh Blackman & Seth Barrett Tillman: Could Justice Thomas Preside over President Trump’s Impeachment Trial?  From the introduction: 

 During most impeachment trials, the Vice President presides over the Senate. But when “the President of the United States is tried,” the Constitution states that “the Chief Justice shall preside.” If President Trump were impeached by the House of Representatives, we can expect Chief Justice John G. Roberts, Jr. to cross the street from the Supreme Court to the Capitol. But what if Roberts can’t, or won’t do the job? Does President Trump get off scot-free? We don’t think so. Instead, the most senior Associate Justice would serve as acting Chief Justice. As a result, Clarence Thomas would preside.
 
Farfetched? Certainly. Impossible? Absolutely not. Seventeen people have served as Chief Justice. Nine of them died while in office. Historically, several months have elapsed before a new Chief Justice is selected. In the last two centuries, we have had two presidential impeachments. In both cases, the chief justices who presided over those trials subsequently became seriously ill and then died in office. Chief Justice Salmon P. Chase suffered a debilitating stroke two years after he presided over President Johnson’s impeachment trial. And Chief Justice William H. Rehnquist was diagnosed with thyroid cancer less than five years after he presided over President Clinton’s impeachment. It is difficult to imagine a circumstance in which Chief Justice Roberts would not be ready, willing, and able to preside over a presidential impeachment trial. But this unlikely scenario should be considered now, and not during a potential constitutional crisis.
 
As a threshold matter, can someone other than a Chief Justice act as a substitute and preside at the President’s impeachment trial? The text of the Constitution is silent about this question. Recently, Gerard Magliocca suggested that only the Chief Justice could preside. In contrast, Akhil Amar maintained that “the senior associate justice might presumably fill in temporarily” during a presidential impeachment trial if the Chief Justice had resigned. Long-standing congressional procedure with regard to temporary officers in the House and in the Senate suggests that Amar is correct. ...
 
I am doubtful about this proposition though:
 
Congress has the greater power to create, by statute, the position of Chief Justice. Therefore, Congress should have the lesser power to provide, by statute, for temporary alternates during a presidential impeachment trial. 
 
But Congress does not create the position of Chief Justice by statute.  The office of Chief Justice arises from the Constitution, as it is named in the Constitution.  (The post's ultimate conclusion may still be right, however).
 
 
(I agree with the answer but I won't even hint here as to what it is.)
 
UPDATE:  The Blackman/Tillman post has inspired more commentary.  At Balkinzation, Gerard Magliocca: Structural Arguments and Impeachment.  He argues:
 
Suppose that after President Andrew Johnson's impeachment, but before his trial was over, Chief Justice Chase had died. A constitutional textualist says, "Well, the trial cannot resume until a new Chief Justice is nominated and confirmed." Presumably, President Johnson would have responded by not nominating anyone. Without a nomination, there could be no Chief Justice. With no Chief Justice, there could be no trial verdict. With no trial verdict, there could be no removal.

That can't be right. The President cannot possess the power to halt his own removal through inaction. ...
 
I think this argument reflects the "perfect Constitution" fallacy.  Of course the President can possess the power to halt his own removal through inaction -- if the framers expressly provided for it, or if they mistakenly wrote the Constitution in a way that has this result.  Just because an outcome is bad (or even nonsensical) does not mean it is unconstitutional.  The Constitution is not perfect.  (But, a nonsensical outcome does suggest one might be misreading the Constitution).
 
 
I think there is a simpler solution. Article III vests the judicial power in one Supreme Court without specifying the number of justices and without any mention of a chief justice. Article II says only that the Chief Justice shall preside over presidential impeachments, with no mention of how the chief is chosen. The details are left to Congress, and 28 U.S.C. § 3 provides:

Whenever the Chief Justice is unable to perform the duties of his office or the office is vacant, his powers and duties shall devolve upon the associate justice next in precedence who is able to act, until such disability is removed or another Chief Justice is appointed and duly qualified.

That ought to be the end of the discussion, without wending our way through various analogous provisions of Article II (Blackman and Tillman) or relying on structure (Magliocca) before reaching 28 U.S.C. § 3.

I think this is wrong too, or at least incomplete.  The question is whether 28 U.S.C. § 3 is constitutional, as applied to the Chief Justice's constitutional duties.  Obviously Congress can assign the Chief's statutory duties to another Justice.    But as to impeachment the Constitution says the Chief shall preside.  Congress says someone other than the Chief will preside.  I think it's not clear Congress can do that, or if it can what limitations there might be.  Could Congress (or the Senate) provide that the majority leader of the Senate shall preside if the Chief cannot?  Can Congress (or the Senate) provide that the majority leader of the Senate shall preside if the Chief is a friend of the President, or was appointed by the President? If not, why not?

(Though as a practical matter I agree with Professor Lubet that 28 U.S.C. § 3 would likely be the end of the matter if the situation did arise.)

11/18/2019

Rob Natelson on McCulloch v. Maryland
Michael Ramsey

At the Epoch Times, Rob Natelson: Why McCulloch v. Maryland—Now 200 Years Old—Is Not a ‘Big Government’ Manifesto.  From the introduction:

This year marks the 200th anniversary of the Supreme Court’s ruling in McCulloch v. Maryland. In that case, Chief Justice John Marshall upheld Congress’s power to charter a national bank—a distant forerunner of the modern Federal Reserve System.

Nearly all constitutional writers consider McCulloch one of the Supreme Court’s most important cases. They are correct to do so.

But many also depict the McCulloch ruling as justifying vast federal powers under a broad interpretation of the Constitution. They portray Marshall as a “big government” judge. That portrayal is wrong.

And from further on, some important points about the necessary and proper clause: 

The Constitution lists the powers of Congress. These include such functions as national defense, borrowing money, taxing, the postal system, the monetary system, and regulating foreign and interstate commerce. In addition to these explicit items, the Constitution adds that “the Congress shall have Power … To make all Laws, which shall be necessary and proper for carrying into Execution” its listed powers.

The Constitution’s list of explicit powers doesn’t include chartering a national bank. In McCulloch, the court had to determine whether chartering the bank was “necessary and proper” to carry out Congress’s explicit powers.

Marshall, like other lawyers of his time, was familiar with documents by which one person or group granted authority to another—documents such as powers of attorney, wills, trust instruments, and statutes. The phrase “necessary and proper” was common in such documents.

As used in the Constitution, the “necessary and proper” phrase meant that in addition to the functions explicitly listed, the person or group receiving authority could exercise incidental powers. These were lesser powers intended to accompany the listed ones. Lesser powers usually were incidental if they were customary or necessary to carrying out the listed functions.

For example, it is customary for a manager hiring employees to investigate candidates before hiring them. So a manager with power to hire employees usually has incidental authority to investigate candidates. Similarly, a real estate broker with authority to sell a vacant building may have incidental authority to clean it for showing.

In like manner, the Constitution’s grant of power to Congress to impose taxes carries with it incidental authority to obtain office space for revenue officers.

Marshall’s McCulloch opinion shows that he understood the necessary and proper clause as embodying the law of incidental powers ...

Seems right to me.  Correctly read, I don't regards McCulloch as either a "big government" opinion or as a nonoriginalist opinion.

11/17/2019

Federalist Society Convention Updates
Michael Ramsey

Here is further video of the Federalist Society National Lawyers Convention, with the theme "Originalism" (from the Federalist Society website): 

Saturday panels

Showcase Panel III: Does Originalism Protect Unenumerated Rights?

Originalism and Constitutional Property Rights Jurisprudence

51 Imperfect Solutions for the Ethical Practice of Law

Special Session: Executive Power vs. Congressional Power

Twelfth Annual Rosenkranz Debate & Luncheon, featuring Professors Michael McConnell and Philip Hamburger on the free exercise clause

Showcase Panel IV: Originalism and Precedent

Friday panels

Showcase Panel II: Why, or Why Not, Be an Originalist?

Address by Secretary Eugene Scalia

The Future of Telecommunications Law and Policy

Money and the Constitution

Stare Decisis in Civil Rights Cases

Originalism, Populism, and the Second Amendment Right to Keep and Bear Arms

Freedom of Speech and Private Power

Economic Law & Policy as a Tool of National Security

19th Annual Barbara K. Olson Memorial Lecture (Attorney General William Barr)

(Thursday panels are linked here).  Also, here is the text of Attorney General Barr's speech. which has generated some substantial press coverage.

One takeaway I had from the conference is that originalism seems now to completely dominate as a theory of constitutional interpretation in the center-right legal world.  At least in the parts I attended, there was almost no reference to conservative nonoriginalist approaches by panelists or push-back on this point from the audience.  There were, of course, critics of originalism from the left, as the Society works hard to present a balanced program.  But I did not hear much if any skepticism from the right.  (I'm not sure that's entirely a good thing for originalism).

New Book: "The Spirit of the Constitution" by David Schwartz
Michael Ramsey

Recently published: The Spirit of the Constitution: John Marshall and the 200-Year Odyssey of McCulloch v. Maryland (Oxford Univ. Press 2019), by David S. Schwartz (Wisconsin).  Here is the book description from Amazon:

2019 marks the 200th anniversary of one of the most important Supreme Court decisions in American history: McCulloch v. Maryland. The state of Maryland tried to impede the establishment of the Bank of the United States, but Chief Justice John Marshall decided that the Necessary and Proper clause of the Constitution gave the federal government implied powers that allowed it to charter the bank without hindrance. The decision expanded the power of the national government vis-à-vis the states, and it still figures centrally in contemporary debates about the scope of national legislative power. Indeed, Chief Justice Roberts' 2012 decision upholding the Affordable Care Act relied on it.

In The Spirit of the Constitution, David S. Schwartz tells the story of the decision's long-term impact and the evolution of Justice Marshall's reputation. By tracing the rich history of McCulloch's influence from 1819 to the present, he shows that its meaning-and significance-for judges, political leaders, and the public varied greatly over time. The case was alternately celebrated, denounced, ignored, and reinterpreted to suit the needs of the moment. While Marshall was never reviled, he was not seen as especially influential until the late nineteenth century. Competing parties utilized McCulloch in constitutional debates over national power in the early republic; over the question of slavery in the late antebellum period; and over Congress's role in regulating the economy and civil rights in the twentieth century. Even after McCulloch's meaning seemed fixed by the mid-twentieth century, new debates about its implications have emerged in recent times. Schwartz's analysis of McCulloch's remarkable impact reaffirms the case's importance and unveils the circuitous process through which American constitutional law and ideology are made.

Via Balkinization, which is hosting an online symposium on the book, featuring Mark Graber (Maryland), Mark Killenbeck (Arkansas), Kurt Lash (Richmond), Sanford Levinson (Texas), Christina Mulligan (Brooklyn), Victoria Nourse (Georgetown), Richard Primus (Michigan), Franita Tolson (USC), and John Mikhail (Georgetown).

11/16/2019

Scott Gerber on Corey Robin on Justice Thomas
Michael Ramsey

At Law & Liberty, Scott Gerber:  A Marxist Takes a Swing and a Miss at Justice Thomas’s Jurisprudence (reviewing [harshly] Corey Robin,  The Enigma of Clarence Thomas (Metroploitan Books 2019)).  From the introduction:

Corey Robin’s The Enigma of Clarence Thomas has certainly attracted a lot of attention. To mention a few of the highlights: the New Yorker excerpted it; the New York Times reviewed it twice and also published an op-ed by Robin about it; the Washington Post, the Wall Street Journal, and The Atlantic reviewed it too; Vanity Fair interviewed Robin about it; C-SPAN broadcast the New York Public Library’s book launch for it; and Annette Gordon-Reed, Patricia J. Williams, Dahlia Lithwick, and Jack M. Balkin provided dust-jacket “blurbs” for it.

Unfortunately, Robin’s book is both agenda-driven and wrong. With respect to the former, any book about a public official that the author labels an “enemy” and a “liar” must be read with a skeptical eye, especially when the secondary sources the author tends to cite are either written by other authors who view Justice Thomas as an “enemy” and a “liar” (e.g., Jane Mayer and Jill Abramson, the co-authors of the anti-Thomas screed Strange Justice: The Selling of Clarence Thomas) or mis-characterized (e.g., despite Robin’s assertion that I am a “conservative admirer” of Justice Thomas because of my book First Principles: The Jurisprudence of Clarence Thomas (1999), I am a libertarian scholar who frequently disagrees with him but who tries to treat him fairly… as Justice Thomas himself has publicly acknowledged).

The principal reason why Robin’s book is wrong is because Robin is a Marxist ideologue who has constructed categories of interpretation that no one utilizes, and this leads him to make a mess of Justice Thomas’s constitutional philosophy. 

11/15/2019

Federalist Society National Lawyers Convention, Featuring Originalism
Michael Ramsey

The Federalist Society's National Lawyers Convention is this weekend (Thursday through Saturday) in Washington D.C, with the title "Originalism" and the opening panel "What Is Originalism?"  Video of Thursday's sessions is available here.

At Dorf on Law, Michael Dorf has his contribution to the panel "Why Be, or Not Be, an Originalist?"  He concludes:

But if one defines the meaning of constitutional terms at a sufficiently high level of generality in order to avoid odious results, originalism ceases to be a distinctive approach to constitutional interpretation. Jack Balkin got a lot of attention for arguing that originalism based on original public meaning is indistinguishable from living constitutionalism, but the point had already been made by others, including such notable nonoriginalists as Ronald Dworkin.

And if originalism isn't really any different from living constitutionalism, the right answer to the question of whether or not to be an originalist is "it doesn't matter."

...  The problem, however, is that while original public meaning originalism does not fundamentally differ from living Constitutionalism, many judges and the public at large continue to adhere to or support the discredited expectations-and-intentions version of originalism. They borrow the patina of respectability that scholars and learned judges give to originalism via resort to original public meaning and use it to purport to justify appeals based on expectations and intentions. ...

Thus, one very good reason not to be an originalist is that even if you are very careful only to endorse public-meaning originalism, your defense of any form of originalism will be used to give unearned credibility to the widely-and-rightly discredited expectations-and-intentions originalism. Given that public-meaning originalism is essentially living Constitutionalism, the better course is the one that leads to less confusion: Don't claim to be an originalist.

...  Indeed, confusion may be too charitable a term for the phenomenon I've just described. "Bait and switch" seems more accurate. Scholars and other sophisticates defend original public meaning but judges practice original expectations and intentions, which politicians sell to the public as determinate.

Yet even that account may be too generous. A more accurate description is probably something like this: Judges who call themselves originalist sometimes invoke original public meaning, sometimes invoke original expectations and intentions, and sometimes simply ignore original understanding altogether, but in any event they vote their ideological druthers. And it happens that the judges and justices who call themselves originalists have conservative ideological druthers.

...

So in the end I suppose the answer to the question whether a judge should be an originalist depends on whether the judge wants a means to shield from the public and possibly even from herself the fact that her values and ideology play a very large role in how she resolves contested legal questions.

To respond briefly:  

(1) I do not agree that original public meaning originalism is the same as living constitutionalism.  Nor do I agree that original public meaning originalism is wholly independent of original intent and expectations.  Original intent and expectations are relevant to (but not decisive of) original meaning.

(2) In any event, if judges are doing bad originalism (and, to be sure, judges are human) the answer is better originalism.

But more importantly, congratulations to the Federalist Society for inviting liberal critics such as Professor Dorf and giving them a prominent role in such a prominent convention.  The Society was founded on the goal to provide fair debate on important legal topics and it's great to see it remain true to its founding principles.

11/14/2019

Steven Calabresi on the Impeachment Process (and Responses) (Updated)
Michael Ramsey

At the Daily Caller, Steven Calabresi (Northwestern):  House Democrats Violate The 6th Amendment By Denying Trump A Public Trial.  The "public trial" point has been a bit overtaken by events as the House process is now public, but the essential claim remains relevant -- that the Sixth Amendment requires the procedures of a criminal trial.  For example:

Moreover, the Sixth Amendment guarantees Trump the right “to confront the witnesses against him”, which right House Democrats are denying to Trump. The president has a right under current Supreme Court case law to have a public face-to-face confrontation with the witnesses against and to testify in his own defense. House Democrats are denying the president that very basic constitutional right.

Commentators have pushed back hard, including David Post at Volokh Conspiracy -- Impeachment and the Sixth Amendment -- and Steven Lubet at the Faculty Lounge and the American Prospect:  No, The House Impeachment Proceeding Is Not Unconstitutional.  From the latter: 

Calabresi argues that “Impeachment is a legal proceeding, and just as criminal defendants have constitutional rights in criminal trials so too does Trump have constitutional rights, which House Democrats are denying him.” He then sets out the basic rights afforded to criminal defendants under the Sixth Amendment, and asserts that these rights have been denied to the president by the House of Representatives.

The opening words of the Sixth Amendment—“In all criminal prosecutions”—make it unmistakable that its provisions do not apply to impeachments, which are clearly noncriminal in nature. Impeachment by the House and conviction by the Senate cannot result in imprisonment, fine, or any other criminal penalty. Rather, the only allowable consequences are removal from office and disqualification from future office-holding.

A full reading of the Sixth Amendment makes it even more obvious that it cannot, by its own terms, apply to congressional impeachments. Calabresi complains that the House of Representatives has denied Trump the rights of confrontation and public trial, but another provision of the Sixth Amendment guarantees trial by “an impartial jury of the State and district wherein the crime shall have been committed.” Impeachments, of course, are tried by the Senate, per Article I, Section 3, with no requirement of impartiality. ...

Professor Calabresi is a highly respected originalist scholar, so I hate to pile on -- but I think the critics are right, at least as to the Sixth Amendment.  Impeachment is not a "criminal prosecution" so the Sixth Amendment does not apply.  In addition to the points made by Professor Lubet, I'd add that Article I, Section 3, in the final paragraph, makes clear that persons convicted in an impeachment proceeding remain "subject to Indictment, Trial, Judgment and Punishment, according to Law" -- that is, subject to a separate criminal prosecution.  Double jeopardy does not bar the second prosecution because the first prosecution (the impeachment) isn't a criminal prosecution.

If there is anything to Professor Calabresi's argument, it doesn't come from the Sixth Amendment.  Rather it comes from the word "impeachment."  It's possible that historically "impeachment" was understood to carry the same procedural rights as an ordinary criminal trial (or at least the core ones such as confrontation, though not -- obviously -- a jury).  One would need to look at procedures under English impeachment law and practice, the American reaction to them, and American commentary and practice after ratification.  Professor Calabresi does not provide any of this, and I doubt (but without having looked into it closely) that such an argument could be sustained.

Rather, I think the House impeachment process is entirely political; the Constitution doesn't require anything apart from a majority vote.  From the Constitution's text, anyway, it appears the House could impeach a President merely on the basis of something its members read in the New York Times, without any hearings at all.  (The modern fetish for hearings is just that -- a modern fetish).  Of course the integrity and fairness of the process (or lack thereof) may influence the Senate and popular opinion as to whether to take the impeachment seriously.  And commentators and defenders of the President are free to point out any lack of integrity and fairness.  But that does not make it a constitutional question.

In the Senate, it may well be a different matter.  Article I, Section 3 refers to the Senate's power to "try" impeachments with the potential outcome being a "Conviction."  This is the language of a criminal trial.  That does not mean the process in the Senate is a criminal trial; the stated remedies are not criminal penalties.  But the parallel language may suggest that the framers understood the basic procedures of a criminal trial to also apply in an impeachment trial.  As indicted above, a complete argument in this direction would include an examination of pre- and post-ratification history.  It seems much more promising, however, than the argument regarding House procedures.

(As an aside, I wonder if Professor Calabresi is more clever than his critics realize.  By taking the position that the House impeachment process is akin to a criminal prosecution, with the attendant protections, he leads critics such as Professors Post and Lubet [and me] to state clearly that it is not such a proceeding, and in fact is it instead wholly political.  Perhaps that is the point he really wants to make: that the House process, lacking the procedural protections we typically expect, is indeed wholly political and should not be given the respect we accord a criminal inquiry.)

UPDATE:  Professor Calabresi responds to critics in an update to his post.  His main arguments are (a) that Sixth Amendment type procedures were used in the Nixon and Clinton impeachment hearings, and (b) impeachment trials in eighteenth-century England had criminal punishments (including execution).

These points do not seem to add much, as (a) that such procedures were used does not shown (especially as an original matter) that they are constitutionally required, and (b) the English situation is obviously different as the Constitution specifically precludes criminal punishments in impeachment trials.

Via Jim Lindgren at Volokh Conspiracy, who adds: 

... [T]he question whether these hearings are fundamentally unfair is different from the question whether full 5th and 6th amendment rights are legally required.

We have an established tradition in the Clinton and Nixon impeachment proceedings for how to conduct fair hearings of this type, a tradition that is being ignored today.  Further, a presidential impeachment is important enough that the protections should be exemplary, not sub-normal.  One should also remember that grand juries are often criticized as being fundamentally unfair (e.g., "ham sandwich")–and with grand juries, proceedings are secret and leaking testimony is a crime.

Here having public hearings, while allowing only one side of the story and prohibiting the Republicans from calling their own witnesses, makes the hearings less like a trial or a grand jury and more like a show trial.

11/13/2019

James Pfander & Jacob Wentzel: The Common Law Origins of Ex parte Young
Michael Ramsey

James E. Pfander (Northwestern University School of Law) and Jacob Wentzel (Northwestern University - Pritzker School of Law) have posted The Common Law Origins of Ex parte Young (Stanford Law Review, forthcoming) (62 pages) on SSRN.  Here is the abstract: 

Few doubt the significance of Ex parte Young as a cornerstone of modern constitutional litigation. But important recent scholarship has come to question the origins and legitimacy of the Ex parte Young proceeding, the primary mode by which individuals test the constitutionality of government action. Deploying a historically-inflected methodology that we call equitable originalism, scholars and jurists have sought to define federal equity power by reference to the forms of equitable intervention that were common in the English High Court of Chancery at the time judicial power was first conferred on the lower federal courts in 1789. Such investigations have led scholars and jurists to question the power of federal courts to grant affirmative Ex parte Young relief and to issue what have come to be known as national or universal injunctions.

This Article explores the Ex parte Young action and the power of federal courts to issue affirmative constitutional remedies in its name. It shows that equity’s traditional reluctance to intervene in public law matters was driven by the primacy and perceived adequacy of the common law writs—mandamus, certiorari, and prohibition—as tools for the judicial oversight of the eighteenth century administrative state. Over time, however, courts in the United States came to view the common law writs as imperfect modes of oversight. Displaying its customary flexibility, equity adapted. Ex parte Young confirms a nineteenth century transition away from the common law writs and toward the equitable injunction as the primary mode of judicial control of administrative action. Equitable originalism could rule out such adaptation, returning equity to its private law eighteenth-century form and undermining modern constitutional remediation.

11/12/2019

Don't Fear Bivens
Michael Ramsey

Today is the Supreme Court oral argument in Hernandez v. Mesa, the cross-border shooting case.  One important background to the case is the suspicion with which originalist and originalist-leaning judges (including the late Justice Scalia) have viewed Bivens claims (Hernandez seeks to bring a Bivens claim against Mesa, a border patrol officer, for the shooting).

I think that suspicion is unjustified.  True, the Bivens case itself is poorly reasoned from an originalist perspective, and the Court's description of the Bivens process as an implied right of action under the Constitution is unfortunate.  But the basic proposition that persons harmed by federal officers acting unconstitutionally can bring claims against them was central to the framers' understanding of constitutional limits on federal power.  In the framers' world -- and indeed the world until Bivens was decided -- these claims would typically be state common law claims.  And, so long as state common law claims remained viable, Bivens was indeed an anomaly. 

But then (post-Bivens) Congress abolished state law claims against federal officers in the Westfall Act.  In my view, absent  a Bivens remedy the Westfall Act would be unconstitutional, as applied to state law claims based on unconstitutional behavior.  Congress lacks power to eliminate a remedy for unconstitutional behavior, as that action is not necessary or proper in support of any constitutional power.  The Westfall Act is constitutional only because Congress likely assumed Bivens remedies would remain in place.  Thus in the post-Westfall Act world, Bivens remedies take the place of the common law remedies assumed by the framers.  Sharply curtailing or eliminating Bivens, as Justice Scalia wished, would radically alter the checks on federal officers, as compared to the original constitutional design.

This amicus brief by the Institute of Justice, supporting the petitioners in Hernandez, makes a similar argument.  From the summary:

Bivens’s pedigree dates back to the English common law, which allowed damages actions for violations of fundamental rights. William Blackstone famously proclaimed that without a method for “recovering and asserting” fundamental rights, “in vain would rights be declared, in vain directed to be observed.” 1 William Blackstone, Commentaries on the Laws of England 55-56. The Founders were so committed to the common law tradition of holding government agents personally liable that anti-federalists, like Luther Martin and George Mason, opposed ratification of the U.S. Constitution in part because they feared that the newly created federal judiciary would take away this common law remedy. Federalists like John Marshall sought to reassure the delegates that the remedy would most definitely live on. After all, our constitutional rights are meaningless if courts cannot redress their violation.

As a result of this history, individuals, for much of America’s existence, could subject federal officers to common law tort liability for violations of constitutional rights. Such cases were heard in state and federal courts (depending on the subject matter), with the common law being the source of the tort remedy in both.

In Bivens, the Court allowed a direct constitutional remedy in federal court, as a supplement to common law remedies, concerned that in the post-Erie world, “leaving the problem of official liability to the vagaries of common-law actions” would hurt federal interests, such as the need to enforce the Constitution without being bound by state precedent. Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 409 (1971) (Harlan, J., concurring). Thus, in the seventeen year period between the Bivens decision and the passage of the Westfall Act, individuals could vindicate their constitutional rights either directly under the Constitution or through the system of common law remedies.

By passing the Westfall Act, Congress precluded all tort suits, including constitutional ones, against federal officers under state common law. But it preserved the right of aggrieved citizens to bring claims “for a violation of the Constitution of the United States.” 28 U.S.C. § 2679(b)(2)(A). This language, the Court has found, is an “explicit exception for Bivens claims.” Hui v. Castaneda, 559 U.S. 799, 807 (2010). In other words, Congress has passed the torch of accountability for constitutional violations from the system of common law remedies to Bivens. By shutting the door on recovery under state common law and still authorizing claims for violations of the Constitution in federal court, Congress made Bivens into the one and only mechanism for holding federal officers personally liable for unconstitutional conduct. ...

The key to this argument, as the brief emphasizes, is to see Bivens not as an anomaly but as a continuation of the common law and constitutional tradition, dating back to the founding, of suing federal officers for unconstitutional acts.  Thus to the extent Congress acknowledged Bivens in the Westfall Act, it should be understood as acknowledging not just claims on the specific facts of Bivens, but the broader tradition.

11/11/2019

Josh Blackman on the DACA Case [Updated]
Michael Ramsey

At Volokh Conspiracy, Josh Blackman: DOJ finally identifies the "constitutional defects" in DACA.  From the beginning:

In a 2017 letter, Attorney General Sessions concluded that DACA suffered from "constitutional defects." Over the past two years, the Department of Justice has steadfastly refused to acknowledge what these "constitutional defects were."

In DHS v. Regents of the University of California, Ilya Shapiro and I submitted an amicus brief on behalf of the Cato Institute and Professor Jeremy Rabkin. We lamented the fact that DOJ has never explained what these "constitutional defects" were, but urged the DOJ to state its position:

The better understanding is that the reference to DACA's "constitutional defects" was framed in terms of the major questions and non-delegation doctrines, as Justice Gorsuch recognized in Gundy. But if there is any doubt about this important question, the government should be asked to represent its position about DACA's "constitutional defects."

DOJ finally opined on this question in its reply brief (pp. 20-21) ...

RELATED (I): Professor Blackman notes that his amicus brief is discussed in a recent Washington Post column by George Will.  An excerpt:

The Trump administration's main reason for rescinding DACA is thoroughly disreputable but entirely permissible — that DACA is bad policy. Another and sufficient reason, however, is that DACA was implemented in accordance with the noxious theory that presidents acquire new constitutional powers by engaging in practices that a lethargic Congress does not challenge. As Cato's brief says, "The executive branch does not need the judiciary's permission to cease enforcing a regulation it determines to be unconstitutional. . . . Courts should allow reversals of novel execution actions that expand presidential power."

RELATED (II): Andrew Pincus, an attorney on an amicus brief supporting the claimants, has a helpful post at Balkinization outlining the background.  But the post actually convinces me of the the opposite of what he intends.  If a President has a reasonable argument that a presidential policy is unconstitutional, it seems clear that the President should be able to discontinue that policy.  To probe whether the President really believes the policy is unconstitutional (as Pincus asks) appears beyond both the constitutional mandate and the institutional capacity of the judiciary.

The DACA case, DHS v. Regents of the University of California, will be argued on Tuesday.

UPDATE: Also at Volokh Conspiracy, Ilya Somin has a contrary view: Why DACA Is Legal.

Professor Somin may be right, but I think the correct question for the Court is not whether DACA is legal, but whether the Attorney General unreasonably concluded it was not legal.  That seems a much harder case to make.

11/10/2019

James Rogers on Ken Kersch on Originalism and Conservatism
Michael Ramsey

At Law & Liberty, James R. Rogers (Texas A & M, Political Science): Originalism, Conservatives, and the Constitution (reviewing Conservatives and the Constitution: Imaging Constitutional Restoration in the Heyday of American Liberalism, by Ken I. Kersch [Cambridge 2019]).  From the introduction:

In Conservatives and the Constitution: Imaging Constitutional Restoration in the Heyday of American Liberalism, Ken I. Kersch provides a tour de force survey of conservative constitutional theory between World War II and 1980. The book, the first of a planned trilogy, provides as much an intellectual history of American conservatism during this period as it does a conservative constitutional theory. The scope of his discussion impresses. From traditionalists, libertarians, Straussians, religious leaders (Catholic, Evangelical, Jewish and Mormon), to Austrian economists, neoconservatives, public choice and rational choice theorists, all come within the book’s compass.

Kersch argues throughout that liberals—and the liberal professoriate, particularly those in law schools—do not recognize the heterogeneity of conservative constitutional thought prior to the Reagan Revolution of 1980. This lack of recognition results partly from the absence, if not exile, of conservative academics from the ascendant liberalism of the legal academy during the period (until the early 1970s). This lack of recognition also results from the identification today of conservative constitutionalism with “originalism.” Doing so, however, projects backwards an intellectual movement gaining ascendency largely after 1980, even though its roots were planted in the earlier period.

In a book as ambitious and wide ranging as Kersch has written, there are bound to be a few missteps. Some minor, if not almost trivial, others more a matter of perspective, and a few are more serious. ...

And from further on, this comment on orignalism:

There is, after all, a difference between constitutional theory and a theory of constitutional interpretation, even as they interrelate. To be sure, one’s constitutional theory cannot help but influence one’s constitutional interpretation in the face of textual ambiguity. Yet originalism is a theory of constitutional interpretation, and as such it is not—nor can it be—a constitutional theory in itself. Indeed, significant differences in constitutional theories divide modern originalists—despite agreement that textual interpretation should be originalist. (Consider the heated discussion among L&L contributors on the Fourteenth Amendment’s privileges and immunities clause some months back.)

Kersch at times writes as if modern originalism is at variance with conservatives during this period who advocated amending the Constitution or who criticized significant aspects of the Constitution. While originalist legal scholars undoubtedly have opinions of what provisions they think should be included or excluded in a constitution, the interpretive project of originalism is to understand the text of the Constitution as it is actually written. As an interpretive methodology, originalism is agnostic as to what should or should not be included in that text. Critics of originalism often conflate focus on understanding original text with worshipping original text. This as opposed to originalism as an interpretive methodology whether one approves of the text or not. The mistake in this gloss is more difficult to make when thinking of originalist approaches to statutory interpretation (a major focus of Justice Scalia’s book on originalism). There, originalist/textualist interpretation of the statutory text can rarely be mistaken as “worship” of the often obscure topics legislated in the interpreted statute. “Constitutions” are just special types of statutes.

Here is the description of Kersch's book from Amazon:

Since the 1980s, a ritualized opposition in legal thought between a conservative 'originalism' and a liberal 'living constitutionalism' has obscured the aggressively contested tradition committed to, and mobilization of arguments for, constitutional restoration and redemption within the broader postwar American conservative movement. Conservatives and the Constitution is the first history of the political and intellectual trajectory of this foundational tradition and mobilization. By looking at the deep stories told either by identity groups or about what conservatives took to be flashpoint topics in the postwar period, Ken I. Kersch seeks to capture the developmental and integrative nature of postwar constitutional conservatism, challenging conservatives and liberals alike to more clearly see and understand both themselves and their presumed political and constitutional opposition. Conservatives and the Constitution makes a unique contribution to our understanding of modern American conservatism, and to the constitutional thought that has, in critical ways, informed and defined it.

(Thanks to Mark Pulliam for the pointer.)

11/09/2019

George Christie: The Well-Intentioned Purpose but Weak Epistemological Foundation of Originalism
Michael Ramsey

George C. Christie (Duke University School of Law) has posted The Well-Intentioned Purpose but Weak Epistemological Foundation of Originalism (Connecticut Law Review, Vol. 51, No. 2, p. 451, 2019) (31 pages) on SSRN.  Here is the abstract:

The attraction of an originalist approach to constitutional interpretation is understandable. It is maintained that only that method can provide the judicial objectivity and certainty that constitutional adjudication requires.  They claim that the traditional common-law evolutionary approach leads Supreme Court Justices to succumb to the temptation to fill in gaps in constitutional law and thereby ignore that major expansions in constitutional meaning and should be made in the way the Founders envisioned, namely by amendment of the Constitution. However difficult or impractical that process may be, it is the only way to avoid the politicization of the Court. Whether that goal is achievable is highly unlikely, as is shown by the large number of five-to-four decisions of the Court. The original understanding is often hotly contested and, as shown in this Essay, often inconsistently applied. It is naive to expect that, once the Court claims to have discovered the original understanding, a future Court would not disagree.

Significant members of the founding generation realized that, in the process of interpreting and applying the Constitution, its meaning would evolve, even in ways that were contrary to the expectations of the Founders, and this is what has happened. In trying to halt and even overturn those developments, originalists have also failed to consider that the founding generation was concerned with more than the semantics of the Constitution as if it were a secular scripture.

As is argued in this Essay, the Founders also had understandings about what was the comparative importance of its clauses in case of conflicts. In adopting the Constitution their ultimate purpose was to create a lasting political society. It is hard to believe that they would accept economic collapse or civil unrest for what some judges believed was textual faithfulness.

As to the first point, Justice Scalia would say: originalism doesn't have to be perfect in achieving objectivity and certainty; it just has to be better than competing theories.

As to the second point -- is Professor Christie suggesting that the political branches should depart from the text as necessary (in their view) to head off "economic collapse or civil unrest"?  So the President can decline to hold an election or to leave office after four years, and rule by decree, to avert economic collapse or civil unrest, via an implied emergency power?  I'm not sure he really wants to make that claim, and I think to the contrary the framers wrote the text in the way they did exactly to prevent such claims.

11/08/2019

New Book: "The Free Exercise of Religion in America" by Ellis West
Michael Ramsey

Recently published, by Ellis M. West (Richmond, Political Science): The Free Exercise of Religion in America: Its Original Constitutional Meaning (Palgrave Macmillan, 2019).  Here is the book description from Amazon:

This book explains the original meaning of the two religion clauses of the First Amendment: “Congress shall make no law [1] respecting an establishment of religion or [2] prohibiting the free exercise thereof.” As the book shows, both clauses were intended to protect the free exercise of religion or religious freedom.  West shows the position taken by early Americans on four issues: (1) the general meaning of the “free exercise of religion,” including whether it is different from the meaning of “no establishment of religion”; (2) whether the free exercise of religion may be intentionally and directly limited, and if so, under what circumstances; (3) whether laws regulating temporal matters that also have a religious sanction violate the free exercise of religion; and (4) whether the free exercise of religion gives persons a right to be exempt from obeying valid civil laws that unintentionally and indirectly make it difficult or impossible to practice their religion in some way. A definitive work on the subject and a major contribution to the field of constitutional law and history, this volume is key to a better understanding of the ongoing constitutional adjudication based on the religion clauses of the First Amendment.

Via this brief and generally positive book review posted on SSRN by Richard Garnett (Notre Dame), at Review of Politics 82 (2019), 1-3.  Professor Garnett concludes in part:

West’s study is, notwithstanding its above-mentioned long gestation, timely, in part because there are reasons to believe that more than a few, and perhaps a majority, of the current Supreme Court are open to reconsidering the 1990 ruling in Employment Division v. Smith, which announced a rule that is consistent with West’s conclusions: Generally speaking, although legislative exemptions from general laws for religious objectors are constitutionally permissible and, in many cases, morally warranted, the Free Exercise Clause does not require, or even authorize, judges to create them. Of course, the Smith ruling was criticized and controversial from the outset, and Congress and state legislatures alike responded to it with statutory exemption-creation regimes such as the 1993 Religious Freedom Restoration Act. Some of Smith’s leading scholarly critics insist, contra Prof. West, that the case’s rule is inconsistent with the First Amendment’s original meaning. Others emphasize the facts that, regardless of public understanding or expectations in 1791 (or, perhaps, in 1868, when the Fourteenth Amendment was ratified), the dramatic increases in both religious diversity and government regulations require a constitutional role that provides greater protection for vulnerable minorities from political majorities. And, still others warn that, for a variety of reasons – the weakening of and loss of confidence in religious institutions, the much-remarked “rise of the nones” and general secularization, the increasing salience of “culture war”-related conflicts between the religious commitments of some and others’ understandings of equality’s demands, etc. – it can no longer be taken for granted that American officials, administrators, regulators, and citizens assign foundational importance to religious freedom and its demands.

11/07/2019

My Thoughts on Segall versus Solum
Michael Ramsey

Last week I promised some thoughts on the exchange between Eric Segall and Larry Solum.  Here they are.

To oversimplify, Professor Solum argues that sometimes originalism requires interpreters to consider changed facts (or changed understandings of facts) in applying a text's original meaning.  (His example is Bradwell v. Illinois, asking whether a law barring women from becoming lawyers violates the equal protection clause; his answer is that, because we now understand that women are equal to men in terms of practicing law, there is an equal protection violation, even if that was not understood at the time of enactment.)  Professor Segall says that this move converts originalism into living constitutionalism because it gives judges discretion to update the Constitution in accord with modern values.

I'm with Solum on this one (though I'm with Segall on some other matters).

The Bradwell example does not involve changing the meaning of the equal protection clause.  "Equal" still means what it meant at the time of enactment.  It's just that we now understand that two things are equal (in that original meaning) although previously they were thought unequal.  I once saw an exhibit at a science museum that displayed an array of objects arranged around two parallel lines, creating an optical illusion in which one line appeared much longer than the other.  If you asked me, are these two lines equal in length, I would have said no.  But when the lines were measured with a ruler, it turned out that they were the same length.  If you then asked me, are these two lines equal in length, I would have said yes they are; I was mistaken before.  This change does not depend on a change in the meaning of "equal" -- in reaching my second conclusion, I am using the original meaning of equal.  So with Bradwell.

But the Bradwell situation is unusual in constitutional law.  Most provisions don't work like the equal protection clause, which states a rule whose application is highly dependent on facts.  Consider (as I often like to) the declare war clause.  Assume the original meaning of the declare war clause is that the President must have the approval of Congress before initiating military hostilities.  Further assume that the framers thought this was a good rule because hostilities unfolded relatively slowly in the eighteenth century, so requiring Congress' approval was not a threat to national security.

Now assume in the modern world we conclude, because of the increase in the speed with which threats develop, that requiring congressional approval to initiate hostilities produces a serious national security problem.  May a modern originalist interpreter "update" the declare war clause in light of modern circumstances to allow presidential wars in response to developing threats?

My answer (and I assume Professor Solum's answer) is: absolutely not.  If the original meaning of the declare war clause is that the President must get Congress' approval, the application of that meaning in the modern world isn't affected by the changes in the technology of warfare.  The President still must get Congress' approval.  True, the changes in the technology of warfare may make the rule, as established by the original meaning, a greater threat to national security.  But that's an argument about whether the original meaning establishes a good rule, not an argument about what the rule is.  The change in factual circumstances is irrelevant to identifying the rule established by the declare war clause.

I think most constitutional provisions (especially outside the Fourteenth Amendment) are like the declare war clause, not like the equal protection clause.  And even if they aren't, the declare war clause example shows that sometimes, at least, originalism is different from living constitutionalism.

11/06/2019

Daniel Birk: Interrogating the Historical Basis for a Unitary Executive
Michael Ramsey

Daniel D. Birk (Chicago-Kent College of Law) has posted Interrogating the Historical Basis for a Unitary Executive (48 pages) on SSRN.  Here is the abstract:

This Article demonstrates that the historical claims about the original meaning of the executive power made by proponents of the "unitary executive" theory of presidential and executive power in the United States are largely unfounded. The ability to remove executive officials was not one of the prerogative powers possessed by the King of England at the time of the framing of the U.S. Constitution. Moreover, the king neither appointed nor was able to remove all of “his” principal officers, many of whom held their offices for life or pursuant to other forms of tenure and operated largely free of the king’s direction or control. While the king possessed plenary authority to choose his high-level advisers and the officers who carried out his prerogatives over the military and foreign affairs, Parliament frequently regulated the appointment, qualifications, and tenure of other executive officials in Great Britain, including by protecting them from removal by the king or his ministers, when there was good reason to do so.

The evidence surveyed in this Article, which includes confirmation from a previously overlooked passage from one of James Madison's writings in The Federalist Papers, has important implications for debates over the unitary executive theory as well as for this term's Supreme Court case over the constitutionality of the Consumer Financial Protection Bureau. It suggests that the Constitution does not proscribe efforts by Congress to insulate regulatory and law-enforcement officials, such as the heads of independent agencies and special prosecutors, from political interference.

11/05/2019

Josh Blackman & Seth Barrett Tillman on Congress Approving Emoluments [Updated]
Michael Ramsey

At Volokh Conspiracy, Josh Blackman & Seth Barrett Tillman, Senator Blumenthal's Emoluments Clause brief conflicts with INS v. Chadha.  From the introduction:

The Foreign Emoluments Clause provides that "[N]o Person holding any Office of Profit or Trust under [the United States], shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State." In a series of briefs and articles, we have explained that the phrase "Office of Profit or Trust under [the United States]" applies to appointed federal officers, but not to elected officials. Therefore, the Foreign Emoluments Clause does not forbid the President or members of Congress from accepting foreign government gifts and emoluments. Congressional consent is not a precondition to their accepting such things. By contrast, appointed officers need congressional consent before accepting foreign government gifts and emoluments. This understanding of the operation of the clause is consistent with the original practice of the government under Washington, his administration, and his successors in the early Republic who were Framers and founders, and their administrations.

When Congress has chosen to grant its consent, it has acted by statute: an instrument passed by both houses of Congress and presented to the President. ... INS v. Chadha (1983) teaches that these resolutions, like any other statute however stylized, must comply with the requirements of bicameralism and presentment—that is, the resolutions must be approved by both houses of Congress and be presented to the President. ...

However, Senator Blumenthal and other Democratic members of Congress articulated a different theory about congressional instruments that consent to foreign state gifts and emoluments. In a recent brief filed in Blumenthal v. Trump, the plaintiffs stated that the President plays no role when Congress, under the Foreign Emoluments Clause, grants consent to a covered officer's accepting a foreign state gift or emolument.

The Framers' decision to give Congress an ongoing procedural role in vetting foreign emoluments—an exclusive authority exercised without the President—was a deliberate one. Unlike the Foreign Emoluments Clause, some constitutional prohibitions give Congress no special role to play, e.g., U.S. Const. art. II, § 1, cl. 7 (Domestic Emoluments Clause), while others require only that certain acts be authorized "by Law," e.g.id. art. I, § 9, cl. 7 (Appropriations Clause).

Plaintiffs' Opposition Brief at 9–10 (D.C. Cir. Oct. 22, 2019) (emphasis added). The plaintiffs contend that a concurrent resolution would suffice to approve a foreign state gift or emolument. This sort of instrument is merely passed by both houses of Congress and is not separately presented to the President. Plaintiffs' position is novel: such a concurrent resolution cannot have the force of law. Instead, the Constitution, under settled Supreme Court precedent, demands that Congress must use a bona fide statute, even if stylized as a so-called joint resolution.

Maybe.  I'm not sure Chadha is decisive because it (arguably) relied on the fact that the resolution changed private rights.  But Article I, Section 7 is categorical: "Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States; ..."  It would take some work to get around that.  On the other hand, a literal reading  of Article I, Section 7 would seem to include some other things that I think not everyone agrees must be presented to the President, including declarations of war (Art. I, Sec. 8); congressional consents to various state activities (Art. I, Sec. 10); and (especially) proposals for constitutional amendments (Art. V).

UPDATE: John Vlahoplus comments: 

One might also consider the roles of state legislatures under the federal constitution.  Those roles have included prescribing the times, places and manners of holding federal elections; directing the manner of appointing the state’s Electors; choosing the state’s U.S. Senators; ratifying proposed constitutional amendments; consenting to federal purchases of state lands and to the formation of certain states; and directly appointing the state’s Electors.  In some of these cases the legislature might function in a lawmaking capacity, submitting its decisions to the executive for approval or veto.  In others it might function as an assembly, independent of the executive.  In yet others its function might differ depending on how it acts—as an assembly if by majority vote or in a lawmaking capacity if by a plurality vote.  If it acts as an assembly, it might act by concurrence of both houses or by joint ballot.  Indeed, Article I, Section 7 might not even apply to consent under the Foreign Emoluments Clause. The Clause might allow Congress to consent by joint ballot rather than concurrence.

The Supreme Court has applied a functional test to determine whether a state legislature acts as a lawmaking body or an assembly under specific constitutional provisions.  A functional test might authorize Congress to act as an assembly under the Foreign Emoluments Clause.  The Clause provides a check.  The Constitution might allow Congress, as a steward, to waive that check—including for the President if the presidency is an office of profit or trust under the United States. 

For much of the constitutional history noted above, see James C. Kirby, Jr., here at 501-03.

11/04/2019

William Baude & Stephen Sachs: The Misunderstood Eleventh Amendment
Michael Ramsey

William Baude (University of Chicago Law School) and Stephen E. Sachs (Duke University School of Law) have posted The Misunderstood Eleventh Amendment (52 pages) on SSRN.  Here is the abstract:

The Eleventh Amendment might be the most misunderstood amendment to the Constitution. Both its friends and enemies have treated the Amendment’s written text, and the unwritten doctrines of state sovereign immunity, as one and the same — whether by reading broad principles into its precise words, or by treating the written Amendment as merely an illustration of unwritten doctrines. The result is a bewildering forest of case law, which takes neither the words nor the doctrines seriously.

The truth is simpler: the Eleventh Amendment means what it says. It strips the federal government of judicial power over suits brought against states, in law or equity, by diverse plaintiffs. It denies subject-matter jurisdiction in all such cases, to federal claims as well as state ones, and in only such cases. It cannot be waived. It cannot be abrogated. It applies on appeal. It means what it says. Likewise, the Amendment does not mean what it does not say: it neither abridges nor enlarges other, similar rules of sovereign immunity, derived from the common law and the law of nations, that limit the federal courts’ personal jurisdiction over unconsenting states.

Current case law runs roughshod over these distinction, exposing sound doctrines to needless criticism, and sometimes leading the Court badly off track. A better understanding of the Amendment’s text lets us correct these errors and respect the unwritten principles that the Amendment left in place.

Just in time for this case: Allen v. Cooper  -- Supreme Court oral argument scheduled for 11/5/19; Question presented: "Whether Congress validly abrogated state sovereign immunity via the Copyright Remedy Clarification Act in providing remedies for authors of original expression whose federal copyrights are infringed by states."

(This paper will be presented at the originalism works-in-progress conference in San Diego in February 2020.)

UPDATE:  At Legal Theory Blog, Larry Solum says "Highly recommended.  Download it while it's hot!"

11/03/2019

Daniel Rice on Federalism and the Treaty Power
Michael Ramsey

At Just Security, Daniel Rice (Institute for Constitutional Advocacy and Protection): Female Genital Mutilation and the Treaty Power: What Congress Can Do.  From the introduction:

Since 1996, the act of female genital mutilation (FGM) has been a federal crime. Federal circuit courts have characterized FGM as “a barbaric practice unbecoming of a civilized society,” “a form of physical torture causing grave and permanent harm,” and “a horrifically brutal procedure.” According to a high-ranking official in ICE’s Homeland Security Investigations unit, “[b]rutality of this nature is inconceivable and horrifying.” And the Solicitor General of the United States recently declared FGM to be “an especially heinous practice . . . that should be universally condemned.” In keeping with this uncompromising posture, successive administrations have used their diplomatic clout to pursue the global eradication of FGM.

...

But in November 2018, Judge Bernard Friedman of the U.S. District Court for the Eastern District of Michigan issued a sweeping opinion holding the FGM statute unconstitutional on the grounds that neither Congress’s treaty-implementing authority nor its power to regulate interstate commerce justified § 116(a)’s enactment.

... Despite “condemn[ing] [FGM] in the strongest possible terms,” DOJ insisted that no reasonable argument could be made in the statute’s defense under either the treaty power or the Commerce Clause. DOJ then moved to withdraw its appeal ...  The Sixth Circuit granted DOJ’s motion, thereby ensuring that the district court’s extraordinary ruling would avoid appellate review.

...

My thesis is simple: both the district court and DOJ performed disastrously. Each actor predicated its constitutional analysis on an astonishingly shallow understanding of the nature of FGM and the legal framework for regulating it. In this article, I will explain why § 116(a) is justifiable as a means of implementing the United States’ treaty obligations. There is a clear rational relationship between the FGM statute and rights protected under the International Covenant on Civil and Political Rights (ICCPR). And even if federalism principles constrained Congress’s ability to implement treaty obligations—which, under current law, they do not—FGM is not the sort of “purely local” crime purportedly reserved for state and local regulation.

It's an insightful and informative post, but my view is different -- as explained in an article I wrote after Bond v. United States (the case involving the woman in Pennsylvania who attempted to poison a romantic rival and was prosecuted for violating the Chemical Weapons Convention implementation act): Congress’s Limited Power to Enforce Treaties.

Contrary to Justice Scalia's concurrence in the Bond case, I think Congress (as an original matter) does have power to enforce treaties from a combination of the President-and-Senate's power to make treaties and Congress' power to "make all laws which shall be necessary and proper for carrying into Execution ... all other powers vested in the Government of the United States, or in any Department or Officer thereof."  But in order to constrain the threats to federalism identified by Scalia's concurrence, I argued that the "necessary and proper" requirement should be interpreted to impose two constraints:

(a) the treaty obligation Congress seeks to enforce should be unambiguous (so that Congress cannot augment its power beyond what the treatymakers intended);  and

(b) the treaty obligation Congress seeks to be enforce should not be readily enforceable by the states (so that Congress' action is really "necessary").

Applied to the FGM statute, I wouldn't say there is no reasonable argument in favor of Congress.  But although it's a close case I would say the statute, as applied to purely local incidents, fails both prongs of the test.   First, the treaty obligation is not unambiguous.  There is no treaty prohibiting FGM by name.  As the linked post explains, the supposed obligation comes from Article 24 of the International Covenant on Civil and Political Rights (ICCPR), which provides that “[e]very child shall have, without any discrimination as to race, colour, sex, language, religion, national or social origin, property or birth, the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State.”  Maybe this provision prohibits FGM (the UN Human Rights Committee says it does), but maybe it doesn't.  My view is that only obligations the Senate clearly approved in the treatymaking process should be the foundation for congressional enforcement -- else the political protections for federalism embodied in the treatymaking process can be circumvented.

The post argues that "an implementing statute need be only rationally related to the treaty it seeks to effectuate."  I think that's the wrong standard, both as an original matter and as a matter of modern law.    The implementing statute needs to be tied (we can debate how closely) to an actual obligation in the treaty (not just to an obligation that could possibly be found in the treaty).  Otherwise, Congress has far too much ability to legislate beyond what the treaty authorizes.

As to the second point, it's not clear to me why FGM cannot be prohibited at the local level.  The post argues that (a) FGM is a matter of international concern because it has generated international opposition and international support for its suppression, and (b) that it often involves travel across state or national boundaries.  As to the first point, I don't think that matters.  The question is whether states have the will and ability to act against it.  In its purely local manifestation, I would think they do.  If states have systematically failed to act, that might make federal intervention necessary.  But it's not clear that states are refusing to act.  As to the second point, Congress can use its interstate and foreign commerce power to suppress interstate and foreign travel for commercial purposes, and the treaty implementation power might allow Congress to suppress noncommercial travel across state lines.  But the fact that such travel occurs does not make it necessary for Congress to regulate purely local activity.

So on balance I think Judge Friedman and the Justice Department got it right, despite Daniel Rice's excellent argument to the contrary.    Congress' power to implement treaties is, as Justice Scalia argued in Bond, a grave threat to federalism if not adequately constrained.    Congress needs to show that it is implementing an obligation clearly contained in the treaty (not just an arguable one) and that congressional action is necessary because the states are unwilling or unable to enforce that obligation.

11/02/2019

Ilya Somin on Police Power Takings
Michael Ramsey

At Volokh Conspiracy, Ilya Somin: Federal Court Rules there is no Taking if the Police Destroy an Innocent Person's House During a Law Enforcement Operation.  From the introduction:

Earlier this week, the US Court of Appeals for the Tenth Circuit ruled [in Lech v. Jackson] that the Takings Clause of the Fifth Amendment does not require the government to compensate an innocent man for the destruction of his house during a police operation ...

The Takings Clause of the Fifth Amendment requires the government to pay "just compensation" to property owners any time their land or other property is "taken" by the state. That includes many situations where the government destroys or damages the property in question, rather than appropriates it for its own use. For example, in 2013, the Supreme Court unanimously  held that a taking can occur as a result of the government deliberately flooding land. ...

Why then, did the court rule that no taking had occurred, thereby denying the Lech family any right to compensation? Because the destruction of the house occurred in the course of a law enforcement operation intended to promote "the safety of the public" ...

The court is right to point out that this distinction between  the "police power" and eminent domain has been adopted in many of previous takings decisions immunizing law enforcement agents from liability. The main relatively new aspect of this case is applying the distinction to the physical invasion or destruction of property, as well as to "regulatory takings" where the government merely restricts the owner's ability to use his or her land. But the rule still makes no sense, and should be done away with.

Citing this article by Benjamin Barros, Professor Somin argues that "The history and original meaning of the Takings Clause also supports the notion that exercises of the "police power" can be takings."

This seems like a question originalism ought to be able to answer.  Police (and military) damages to property were likely fairly common in the founding era (or, if you prefer, in the time leading up to the enactment of the Fourteenth Amendment).  It should be fairly easy to see whether there was a pattern of compensating -- or, more importantly, not compensating -- them.  (I haven't read the cited article closely enough to have an opinion).

For what it's worth, Chief Justice Taney in Mitchell v. Harmony (1851) strongly implied that a military taking, even if motivated by emergency, would require compensation. In a case involving military seizure of private property during the Mexican War, he wrote for the Court:

There are, without doubt, occasions in which private property may lawfully be taken possession of or destroyed to prevent it from falling into the hands of the public enemy, and also where a military officer charged with a particular duty may impress private property into the public service or take it for public use. Unquestionably in such cases the government is bound to make full compensation to the owner, but the officer is not a trespasser.

But we are clearly of opinion that in all of these cases the danger must be immediate and impending, or the necessity urgent for the public service such as will not admit of delay and where the action of the civil authority would be too late in providing the means which the occasion calls for. It is impossible to define the particular circumstances of danger or necessity in which this power may be lawfully exercised. Every case must depend on its own circumstances. It is the emergency that gives the right, and the emergency must be shown to exist before the taking can be justified.

(The Court held in the particular case that no such emergency existed).

11/01/2019

Anthony J. Bellia & Bradford Clark: The International Law Origins of American Federalism
Michael Ramsey

Anthony J. Bellia Jr. (Notre Dame Law School) & Bradford R. Clark (George Washington University Law School) have posted The International Law Origins of American Federalism (Columbia Law Review, 2020, forthcoming) (97 pages) on SSRN.  Here is the abstract:

Courts and commentators have long struggled to reconcile robust federalism doctrines with the text of the Constitution. These doctrines include state sovereign immunity, the anti-commandeering doctrine, and the equal sovereignty of the States. Supporters of such doctrines have generally emphasized the history, structure, and purpose of the Constitution over its precise text. Critics of such doctrines have charged that they lack adequate support in the Constitution and are the product of improper judicial activism. This Article reconciles federalism and textualism by looking to a surprising source—international law. The Constitution contains numerous references to “States”—a term of art drawn from the law of nations. The founding generation first used the term “States” in the Declaration of Independence to claim independence for the original thirteen colonies and declare that they possessed full sovereign rights under the law of nations. The law of nations not only defined the rights of sovereign States, but also provided rules governing how States could surrender these rights. Understanding the term “States” against this backdrop provides a firm textual basis for the Supreme Court’s most significant federalism doctrines, and suggests that courts and commentators have been asking the wrong questions in assessing these doctrines. Under the law of nations, a “State” possessed full sovereignty unless it clearly and expressly surrendered some of its sovereign rights in a binding legal instrument. Thus, to determine the sovereign rights of the “States” under the Constitution, courts should ask not whether the constitutional text affirmatively grants them certain rights, but whether the constitutional text clearly and expressly abrogates such rights. This approach grounds many of the Court’s prominent federalism doctrines in the constitutional text.

Mike Rappaport made something like this point a while back in "Reconciling Textualism and Federalism: The Proper Textual Basis of the Supreme Court's Tenth and Eleventh Amendment Decisions" (93 Northwestern U. L. Rev. 819 (1999)) [not on SSRN].