The Originalism Blog

Alexander Volokh on Separation of Powers and the Chevron DoctrineMichael Ramsey

In the CPI Antitrust Chronicle, Alexander Volokh: Goodbye, Chevron: Rediscovering the Virtues of an Independent Judiciary (behind a paywall, but excerpts available here at Volokh Conspiracy).  From the conclusion:

Putting the courts in the driver's seat, and preventing agencies from interpreting statutes in ways that are wrong but not crazy — these are positive moves. Consider, for some perspective, City of Arlington v. FCC, where the Supreme Court confronted whether Chevron applied to an agency's interpretation of the scope of its own jurisdiction or authority. Justice Scalia wrote that the distinction between jurisdictional and non-jurisdictional interpretations is illusory: "No matter how it is framed, the question a court faces when confronted with an agency's interpretation of a statute it administers is always, simply, whether the agency has stayed within the bounds of its statutory authority." For courts, the jurisdictional/non-jurisdictional distinction is meaningful: "Whether the court decided correctly is a question that has different consequences from the question whether it had the power to decide at all." But for agencies, that distinction makes no sense: "Both their power to act and how they are to act is authoritatively prescribed by Congress, so that when they act improperly, no less than when they act beyond their jurisdiction, what they do is ultra vires."

Justice Scalia used that reasoning as an argument in favor of Chevron deference: Because the question of whether the agency acted ultra vires is the same every time the agency adopts an interpretation of its statute, there's no reason to separate out supposedly "jurisdictional" interpretations.

Against the background of his longstanding support for Chevron, this meant Chevron all the time. But one could turn this around and make it an argument against Chevron deference.

The premise and promise of cases like Youngstown is that courts are ready to guard against executive overreach by authoritatively interpreting statutes and holding the government within its proper bounds. The "province and duty of the Judicial Department," says Marbury v. Madison, is, after all, to "say what the law is." But Justice Scalia's reasoning implies that all agency statutory interpretations are created equal; if this is so, then any deference allows the fox to guard the henhouse, and any admission that the agency is wrong-but-not-crazy amounts to acquiescence in ultra vires action.

The Marbury/Youngstown promise of checks and balances works when courts tell the executive what statutes mean — not the other way around. The idea of robust separation of powers sits uneasily with an attitude that the Executive Branch is allowed to be wrong-but-not-crazy. Of course, if there really were a delegation of congressional lawmaking power, that might be acceptable under our current loose non-delegation doctrine; but the idea of anti-delegation canons suggests that such delegations shouldn't be casually allowed as a broad background principle of administrative law.

Robert Natelson on Article V ConventionsMichael Ramsey

At Law & Liberty, Robert G. Natelson: Busting the Myths About Article V Conventions.  From the introduction: 

aw & Liberty recently featured an excellent exchange between John Grove and Mark Pulliam on state nullification as a way to respond to federal overreach and infringements on liberty.

There is, however, an alternative. The Constitution’s Article V permits constitutional amendments through a state-based process of proposal and ratification. The Framers designed this procedure to enable the states to bypass Congress while correcting or curbing a dysfunctional or abusive federal government.

State legislatures have initiated the procedure on many occasions. In 1788 and 1789, the legislatures of Virginia and New York initiated it to induce Congress to propose the Bill of Rights. Early in the twentieth century, a majority of states employed it to persuade the Senate to agree to the Seventeenth Amendment (direct election of senators). After World War II, states employed it to convince Congress to propose the Twenty-Second Amendment (presidential term limits).

Since that time, however, the federal government has become more dysfunctional and Congress more resistant to reform. Yet the states have never carried through the amendment process to completion.

In 2009, when I began to investigate this procedure, I started with the following hypotheses: that the 1787 Philadelphia convention was the only federal convention ever held; that Congress called it for the sole purpose of amending the Articles of Confederation; that by proposing a new Constitution, the convention “ran away”—i.e., exceeded its power; that an Article V “Convention for proposing Amendments” would be a constitutional convention untethered to the scope of its call; that its composition and protocols are unknown; and that courts rarely, if ever, had adjudicated Article V issues—if they were justiciable at all.

All of these hypotheses turned out to be glaringly false, and the evidence forced me to reject all of them. ...

Justice Patrick DeWine: Ohio Constitutional InterpretationMichael Ramsey

Justice R. Patrick DeWine (Ohio Supreme Court) has posted Ohio Constitutional Interpretation (86 Ohio State L.J. (forthcoming 2025)) (31 pages) on SSRN.  Here is the abstract:

There has been a good deal written about why state courts should independently interpret state constitutions.  But not much on how they should do that.  We shouldn’t just assume that the interpretive methodologies for state constitutions are necessarily the same as for the Federal Constitution.  I focus here on some key interpretive issues for the Ohio Constitution, but the issues addressed will be relevant in the interpretation of other state constitutions as well.

 I argue for an original public meaning approach to the Ohio Constitution.  Such an approach is rooted in our earliest caselaw.  And there is a compelling normative case for original public meaning because every provision of the Ohio Constitution was approved by popular vote of the people and because the Ohio Constitution is relatively easy to amend. Most proponents of a “living constitution” focus their arguments on the difficulty of amending the federal constitution, but because the Ohio Constitution can be easily updated by the people, there is no justification for judges to do that work for them.

So how do judges discern original public meaning?  Text is paramount, but what should judges look at when text is not determinative?  I explore several possibilities including: (1) Ohio’s prior constitution and other state constitutions, (2) constitutional convention proceedings and other historical materials, (3) ballot language and other officially promulgated materials, and (4) campaign materials, news articles and other contemporaneous materials available to voters considering a constitutional amendment.

Finally, I take up the problem of how to deal with prior “lockstep precedent” that says that a provision of the Ohio Constitution has the same meaning as a similar provision in the federal Constitution.  I argue that we should only give minimal stare decisis effect to such pronouncements and in most cases should abandon them when text and history demonstrate a different meaning.

Via Jonathan Adler at Volokh Conspiracy.

Jack Balkin: What Lawyers Want from HistoryMichael Ramsey

Jack M. Balkin (Yale Law School) has posted What Lawyers Want from History (11 pages) on SSRN.  Here is the abstract:

This short essay, written for academic historians, explains how lawyers who argue and decide constitutional cases use history and what they want from history.

Lawyers’ use of history is both normative and prescriptive. They construct a lawyerly version of the past to tell us what we should do in the present. This lawyerly construction of history has three basic features. First, lawyers use history to establish authority for their own arguments and to undermine claims of authority by their opponents. Second, lawyers channel history through standard forms of legal argument that shape what they see in history and what they look for in history. Third, lawyers construct memory. They are memory entrepreneurs who try to get their audiences to remember the past in particular ways.

Lawyers remake history in law’s image and for lawyers’ purposes. They beat history into shape so that they can use it in their quest for authority. To understand the legal uses of history, one must be clear-eyed about what lawyers want from history. Their practices follow their desires.

Via Larry Solum at Legal Theory Blog, who says "Highly recommended".

An Originalist Defense of the Major Questions Doctrine (Revised)Michael Ramsey

I have posted a revised and expanded version of my article An Originalist Defense of the Major Questions Doctrine (Administrative Law Review, vol. 76, forthcoming 2024) (43 pages) on SSRN.  Here is the abstract:

Courts invoke an array of “canons” to aid their interpretation and application of legal texts. Their authority to do so remains contested and underdeveloped. The debate over judicial canons has been rekindled by the major questions doctrine (MQD), announced by the Supreme Court in West Virginia v. EPA and related cases. According to the Court, the MQD requires “clear congressional authorization” for administrative or executive agencies to exercise delegated authority over “major policy decisions.”

The MQD has been criticized from various perspectives, including by originalist- and textualist-oriented scholars. This essay, prepared for a roundtable at the C. Boyden Gray Center for the Study of the Administrative State, addresses part of that criticism – specifically, the question whether the Constitution’s original meaning permits courts to adopt clear statement canons like the MQD. It concludes that such canons are sometimes constitutionally permissible (though not necessarily advisable), even if they allow courts to depart from a statute’s most plausible original meaning. It particular, it argues that this judicial practice was deployed by courts in the immediate post-ratification period without material objection, suggesting that it is an aspect of the “judicial Power” vested in federal courts by Article III.

Comments welcome.

Sixteenth Annual Hugh and Hazel Darling Foundation Works-in-Progress ConferenceMichael Ramsey

A message from the Center for the Study of Constitutional Originalism:

On behalf of the University of San Diego's Originalism Center, we are pleased to present the complete list of papers and commentators for the Sixteenth Annual Hugh and Hazel Darling Foundation Originalism Works-in-Progress Conference scheduled for February 7-8, 2025 at the University of San Diego Law School.

Randy Barnett (Georgetown) & Larry Solum (Virginia), "Originalism and the Party Presentation Principle"

Commentator: Tara Grove (Texas)

Mitchell Berman (Penn), “Public Meaning Originalism: Right Question, Wrong Answer”

            Commentator: Will Baude (Chicago)

Charles Capps (Arizona State), “Does the Law Ever Run Out?”

Commentator: Jack Balkin (Yale)

Sherif Girgis (Notre Dame), "Unfinished Rights: The Inevitability Of Balancing Liberties Over Time" 

            Commentator: Stephanie Barclay (Georgetown)

Robert Leider (Scalia), "The Individual Right To Bear Arms For Common Defense"

Commentator: Adam Winkler (UCLA)

Stephen Sachs (Harvard), “The Twelfth Amendment and the ERA.”

Commentator: Thomas Schmidt (Columbia)

Ilan Wurman (Minnesota), "The Constitution of 1789: Foreign Affairs and War." 

Commentator: Michael McConnell (Stanford)

The selection of the papers was difficult, as there were a large number of worthy submissions.  In the end, the selections were made based on both individual merit as well as the need to have a balanced group of papers on originalism.

In addition to the authors and commentators, the members of the Originalism Center should also be in attendance.  The members include: Larry Alexander, Laurence Claus, Donald Dripps, Michael Ramsey, Michael Rappaport, and Steven Smith.

We are excited to have such a distinguished lineup of authors and commentators, and again we invite all scholars who are interested in originalism to attend and participate in the conference by reading the papers and joining the discussion. The Center would be happy to pay for the group meals for those attending the whole conference but not giving a paper or serving as a commentator.

Christine Kexel Chabot: Rejecting the Unitary ExecutiveMichael Ramsey

Christine Kexel Chabot (Marquette University Law School) has posted Rejecting the Unitary Executive (62 pages) on SSRN.  Here is the abstract:

Critics have dismissed originalism as an empty methodology incapable of resolving our most important constitutional disputes. The debate over the unitary executive has proved particularly difficult to resolve as a matter of original public meaning.  While unitary scholars claim that Article II grants the President an indefeasible power to remove all subordinates at will, their interpretation rests on minimal text and conflicts with significant historical evidence. The Supreme Court circumvented this impasse when it adopted a strong unitary interpretation of Article II in Trump v. United States. 

This Article develops a new methodological framework to address the underlying disconnect between ongoing historical disputes over the unitary executive and original public meaning’s claims to a determinate understanding of the Constitution. Leading originalists have staked their claims to determinacy on empirical, fact-based assertions of historical consensus on the Constitution’s meaning. My framework responds to these empirical claims on their own terms. It requires unitary theorists who assert historical consensus to measure their claims against the entire historical record including evidence that would render these claims false. Under my approach, for example, a theory asserting an absolute claim that all that swans are white cannot withstand observations of swans that are black. A theory of historical consensus that Article II empowered the President to remove all subordinates at will likewise cannot withstand reliable historical counterevidence of restrictions on the President’s removal power.

 While the supposedly competing evidence relied on by unitary executive theorists may show an unrestricted removal power over some subordinate officers, this evidence does not rule out tenure protection for other subordinate executive officers. It aligns just as well with the unitary executive’s theoretical alternative: a pluralist understanding in which Congress has discretion whether or not to restrict the President’s removal power. The framework developed by this Article makes clear what originalism’s underdetermined methodological framework has hidden from plain sight. The Founding generation rejected the unitary executive and not today’s pluralistic system of congressional discretion. 

Cass Sunstein: Administrative Law's Grand NarrativeMichael Ramsey

Cass R. Sunstein (Harvard Law School) has posted Administrative Law's Grand Narrative (16 pages) on SSRN.  Here is the abstract:

For many decades, administrative law has been clouded, or perhaps haunted, by a Grand Narrative. According to that narrative, the Supreme Court has abdicated. It has allowed the modern administrative state to breach the safeguards established by Article I, Article II, and Article III. The Court permitted the breach of Article I by authorizing Congress to delegate broad discretionary authority to agencies (and thus to become legislators). The Court permitted the breach of Article II by authorizing Congress to create independent agencies, immunized from presidential control. The Court permitted the breach of Article III in two ways: (1) by giving Congress broad authority to allow administrative agencies to engage in adjudication, unprotected by the Constitution's tenure and salary provisions and (2) by granting interpretive authority to such agencies. In recent years, the Court has acted as if the Grand Narrative is essentially right. Thus it has sharply cabined Congress' power to create independent agencies; imposed new constraints on Congress' power to allow agencies to adjudicate; signaled the vitality of the nondelegation doctrine; insisted on independent judicial interpretation of law; and invoked the separation of powers, through the major questions doctrine, to limit the exercise of discretionary power by agencies. The Grand Narrative also affects other areas of administrative law, including "arbitrary or capricious" review. There are other grand narratives about administrative law (originalist, Burkean, Thayerian, and pragmatic), and they might well be more compelling; but in the current era, they are not nearly as grand, or as influential, as the Grand Narrative. Law has multiple equilibria, and the current equilibrium, if it can be called that, is one in which the Grand Narrative is on the ascendency.

Sounds right to me.

Thomas Lee & Jesse Egbert on AI and Corpus Linguistics [Updated]Michael Ramsey

At Volokh Conspiracy, Justice Thomas Lee (Utah Supreme Court, ret.) & Jesse Egbert (Northern Arizona University - Applied Linguistics) are guest-blogging about their article Artificial Meaning?  Here is the article abstract: 

The textualist turn is increasingly an empirical one—an inquiry into ordinary meaning in the sense of what is commonly or typically ascribed to a given word or phrase. Such an inquiry is inherently empirical. And empirical questions call for replicable evidence produced by transparent methods-not bare human intuition or arbitrary preference for one dictionary definition over another.

Both scholars and judges have begun to make this turn. They have started to adopt the tools used in the field of corpus linguistics—a field that studies language usage by examining large databases (corpora) of naturally occurring language.

This turn is now being challenged by a proposal to use a simpler, now-familiar large language model (LLM)—AI-driven LLMs like ChatGPT. The proposal began with two recent law review articles. And it caught fire—and a load of media attention—with a concurring opinion by Eleventh Circuit Judge Kevin Newsom in a case called Snell v. United Specialty Insurance Co. The Snell concurrence proposed to use ChatGPT and other LLM AIs to generate empirical evidence of relevance to the question whether the installation of in-ground trampolines falls under the ordinary meaning of "landscaping" as used in an insurance policy. It developed a case for relying on such evidence—and for rejecting the methodology of corpus linguistics—based in part on recent legal scholarship. And it presented a series of AI queries and responses that it presented as "datapoints" to be considered "alongside" dictionaries and other evidence of ordinary meaning.

The proposal is alluring. And in some ways it seems inevitable that AI tools will be part of the future of an empirical analysis of ordinary meaning. But existing AI tools are not up to the task. They are engaged in a form of artificial rationalism—not empiricism. And they are in no position to produce reliable datapoints on questions like the one in Snell.

We respond to the counter-position developed in Snell and the articles it relies on. We show how AIs fall short and corpus tools deliver on core components of the empirical inquiry. We present a transparent, replicable means of developing data of relevance to the Snell issue. And we explore the elements of a future in which the strengths of AI-driven LLMs could be deployed in a corpus analysis, and the strengths of the corpus inquiry could be implemented in an inquiry involving AI tools.

And here are the initial posts:

Corpus Linguistics, LLM AIs, and the Assessment of Ordinary Meaning

Corpus Linguistics, LLM AIs, and the Future of Ordinary Meaning

LLM AIs as Tools for Empirical Textualism?: Manipulation, Inconsistency, and Related Problems

UPDATE: A further post, which is a core part of the argument:

Corpus Linguistics v. LLM AIs - The selling points of LLM AIs are insufficient; corpus tools hold the advantage.

Stephen Griffin: History vs. OriginalismMichael Ramsey

Stephen M. Griffin (Tulane University Law School) has posted History vs. Originalism: The Bill Comes Due (39 Constitutional Commentary (forthcoming)) (30 pages) on SSRN.  Here is the abstract:

This is a review essay of three highly significant recently published books concerning constitutional history, the controversy over originalism, and constitutional interpretation.  The books are: Jack Balkin, Memory and Authority: The Uses of History in Constitutional Interpretation; Jonathan Gienapp, Against Constitutional Originalism: A Historical Critique; and Mark Graber, Punish Treason, Reward Loyalty: The Forgotten Goals of Constitutional Reform after the Civil War.

The views of historians on how to best use historical evidence to interpret the Constitution have long taken a back seat in the debates of legal scholars.  I argue that this will no longer be the case once the legal academy has absorbed the lessons of these books.  Historians have finally weighed in and constitutional scholarship will be better for it.

While academic originalism comes in for substantial criticism in all three books, their more subversive theme is that giving history its proper due poses difficulties for the ordinary practice of constitutional lawyering as well.  Whether originalist or not, all lawyers and judges have much to learn from these books.

Fourteenth Amendment Original Meaning in SkrmettiChris Green

I have posted an article to SSRN, Equal Citizenship Yes, Intermediate Scrutiny No, a companion to my amicus brief filed this morning at the Supreme Court. Here is the abstract: 

United States v. Skrmetti, a constitutional challenge to Tennessee’s limits on children’s use of cross-sex hormones, offers the Supreme Court the chance to rethink its 1976 ipse dixit in Craig v. Boren that “previous cases establish that classifications by gender must serve important objectives and must be substantially related to achievement of those objectives.” Intermediate scrutiny has six fatal flaws:

• its false claim about what “previous cases establish,"
• Fourteenth Amendment discussions in 1866 that lump gender and age distinctions together, inconsistent with their radically different treatment in Craig and Murgia,
• the fraught nature of all of the terms in the tiers-of-scrutiny framework: “substantial,” “important,” “narrowly tailored,” “compelling,” “rational,” and “legitimate,”
• inconsistency about whether widespread practice counts for or against heightened scrutiny,
• the heterogeneity of the costs of policies—e.g., male-only draft registration and young-female-only low-alcohol-beer consumption—treated by Craig as equally in need of justification, and
• the implausibility of making so much turn on whether a distinction—e.g., distinctions based on pregnancy, or symmetric sex distinctions—counts as “classification by gender.”

Abandoning Craig does not, however, discard Fourteenth Amendment rights for women (or those with gender dysphoria). Rather than intermediate scrutiny, the Court should ground women’s Fourteenth Amendment rights in the nineteenth-century tradition of equal citizenship. The 1848 Seneca Falls Declaration, Jacob Howard’s introduction of the Fourteenth Amendment to the Senate, 1866 campaign discussions of voting rights, Matthew Carpenter’s argument for Myra Bradwell, the 1872 and 1876 Republican platforms, and Minor v. Happersett all converge to support a simple path from the Fourteenth Amendment’s text to women’s equal Fourteenth Amendment citizenship: citizens are those whose interests the government must promote impartially. While women were long denied equal voting and occupational rights, such limits were defended, not on the basis that female citizens do not matter, but on the empirical ground that (in the case of voting) men were naturally inclined to act in women’s interests as well as their own, and that (in the case of occupational limits) “[t]he natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life.” These empirical claims can, of course, be challenged. But like all citizens, women are subject to governmental paternalism; their “right to ... pursue and obtain happiness” is “subject nevertheless to such restraints as the government may justly prescribe for the general good of the whole.” Only if a statute is clearly not based on a good-faith belief that it will serve women’s interests as well as it serves the interests of men may courts properly intervene. Because the regulations challenged in Skrmetti are based on a good-faith belief that a delay in the use of cross-gender hormones will best promote the health of young citizens with gender dysphoria, they are akin to prohibition laws. States may prohibit alcohol—even alcohol seen as medically necessary by some doctors—to prevent decisions states reasonably regard as likely to be self-destructive. States may likewise delay the use of cross-gender hormones until adulthood.

Comments welcome!

Ilya Somin on Donald Trump and the Alien Enemies Act [Updated]Michael Ramsey

At Volokh Conspiracy, Ilya Somin: Trump's Plan to Use the Alien Enemies Act of 1798 as a Tool for Mass Deportation. From the introduction: 

Donald Trump recently announced his intention to use the Alien Enemies Act of 1798 as a tool for mass deportation of immigrants. The Alien Enemies Act is a component of the notorious Alien And Sedition Acts. It's the only part of that legislation that remains on the books today. Unlike the more sweeping Alien Friends Act, which gave the president broad power to deport and bar any "aliens as he shall judge dangerous to the peace and safety of the United States," and was therefore rightly denounced as unconstitutional by James Madison, Thomas Jefferson, and others, the Alien Enemies Act allows detention and removal only when  there "is a declared war between the United States and any foreign nation or government, or any invasion or predatory incursion is perpetrated, attempted, or threatened against the territory of the United States by any foreign nation or government." In that event, the president is given the power to detain or remove "all natives, citizens, denizens, or subjects of the hostile nation or government, being of the age of fourteen years and upward, who shall be within the United States and not actually naturalized."

Katherine Yon Ebright of the Brennan Center has an excellent explanation of why the Alien Enemies Act cannot legally be used against migrants from countries with which the US is not at war. Here's her summary of her analysis ...

I agree (with the legal analysis, though perhaps not all the political/policy contentions).  Textually, it's an easy call.  Here's the full relevant text of the Alien Enemies Act of 1798 (emphasis added).

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That whenever there shall be a declared war between the United States and any foreign nation or government, or any invasion or predatory incursion shall be perpetrated, attempted, or threatened against the territory of the United States, by any foreign nation or government, and the President of the United States shall make public proclamation of the event, all natives, citizens, denizens, or subjects of the hostile nation or government, being males of the age of fourteen years and upwards, who shall be within the United States, and not actually naturalized, shall be liable to be apprehended, restrained, secured and removed, as alien enemies. And the President of the United States shall be, and he is hereby authorized, in any event, as aforesaid, by his proclamation thereof, or other public act, to direct the conduct to be observed, on the part of the United States, towards the aliens who shall become liable, as aforesaid; the manner and degree of the restraint to which they shall be subject, and in what cases, and upon what security their residence shall be permitted, and to provide for the removal of those, who, not being permitted to reside within the United States, shall refuse or neglect to depart therefrom; and to establish any other regulations which shall be found necessary in the premises and for the public safety...

Even if the current situation involves an "invasion or predatory incursion," it is not one "perpetrated, attempted, or threatened ... by any foreign nation or government." (It might be a different conclusion if a foreign government were actively promoting illegal migration of its citizens to the United States, but I doubt the facts support such a claim.)  Although Professors Somin and Ebright have considerably more analysis, I don't think more is needed.

I also agree with Professor Somin that courts should not treat the matter, if it comes to them, as a political question.  Here is his discussion:

Despite the strong legal arguments against it, there is a chance Trump could succeed in using the Alien Enemies Act as a tool for detention and deportation. As Ebright notes, courts might rule that the definitions of "invasion" and "predatory incursion" are "political questions" that courts aren't allowed to address. Several previous court decisions have held that the definition of "invasion" in the Constitution is a political question (thereby preventing state governments from invoking broad definitions of invasion under the Invasion Clause of Article IV in order to be able to "engage in war" in war without federal authorization), though many have simultaneously held that an illegal migration does not qualify as "invasion" because an invasion requires a large-scale armed attack (see pp. 20-22 of my amicus brief).

Ebright argues (correctly, I think) that even if the definition of "invasion" is usually a political question, the use of the Alien Enemies Act as a tool for mass detention and deportation of migrants from countries with which the US is not at  war should fall within the exception for "an obvious mistake" or "manifestly unauthorized exercise of power" (Baker v. Carr (1962)). I would add that the entire political question doctrine is an incoherent mess, and courts should not extend it further.

Again, I think the analysis can be more simple.  The question, in my view, isn't whether there is an invasion (which indeed might be a political question, even under the original concept of political questions), but whether it -- whatever it is -- is "perpetrated ... by any foreign nation or government." Since that's clearly not the case, for the reasons Professor Somin says, a court would simply be called on to enforce the statute as written, which is comfortably within the judicial power.

(Of course, for non-textualists, the analysis may be a bit more challenging.)

UPDATE:  Ilya Somin has further thoughts here: More on "Invasion," the Alien Enemies Act, and the Political Question Doctrine.

FURTHER UPDATE:  Andrew Hyman comments:

Putting aside the Alien Enemies Act, the POTUS seems to have very broad deportation authority per other statutes, like 8 USC 1227.  That statute says, “Any alien who at the time of entry …was within one or more of the classes of aliens inadmissible by the law existing at such time is deportable…..Any alien who is present in the United States in violation of this chapter or any other law of the United States, … is deportable.”

Well, sure, but the Alien Enemies Act is more interesting.  (Also it applies -- if it applies at all -- to persons legally present in the U.S. as well.)

FURTHER COMMENT BY ANDREW HYMAN:  

As to the Alien Enemies Act, it was triggered by “any invasion … perpetrated, attempted, or threatened against the territory of the United States, by any foreign nation or government….”  The last few words indicate that action by a foreign “government” is not necessary, if the “nation” more generally is responsible. Here’s what Vattel wrote on that score: “the nation in general, is guilty of the base attempt of its members….when by its manners or the maxims of its government it accustoms, and authorizes its citizens to…make inroads into the neighboring countries….” Mike mentioned above that the Alien Enemies Act might apply “if a foreign government were actively promoting illegal migration of its citizens to the United States, but I doubt the facts support such a claim….” Vattel indicates that “allowing” rather than “promoting” would suffice, and foreign governments have done so (and have also urged the United States to not strongly oppose the unlawful inroads).

Andrew Lanham on Supreme Court OriginalistsMichael Ramsey

In The New Republic, Andrew Lanham: The Supreme Court’s Originalists Are Fundamentally Wrong About History.  From the introduction:

In early July 1985, U.S. Attorney General Edwin Meese launched a legal revolution from the tony confines of the Sheraton Washington Hotel. Speaking to the American Bar Association, he argued that “far too many” Supreme Court decisions had devolved into mere “policy choices,” driven by the justices’ personal preferences, rather than following “constitutional principle.” In a fiery line that Meese skipped when he read the speech but that appeared prominently in the published version, he said the court’s turn to policymaking was most evident in “the radical egalitarianism and expansive civil libertarianism of the Warren Court.” The Warren court had, among other things, desegregated public schools in Brown v. Board, guaranteed equal voting rights in Reynolds v. Sims, and protected the right to contraception in Griswold v. Connecticut. Now, in 1985, Meese labeled the court’s “egalitarianism” a “threat” to the proper legal order.

Meese demanded a different form of judging. He called it “a Jurisprudence of Original Intention.” The Constitution’s framers “chose their words carefully,” he said, and those words “meant something.” The Supreme Court’s job was to find and enforce that meaning. Meese then promised that the Justice Department would “press for a Jurisprudence of Original Intention.” In 1988, the department duly released its Guidelines on Constitutional Litigation, which claimed that “constitutional language should be construed as it was publicly understood at the time of its drafting and ratification.” All government lawyers “should attempt to construct arguments based solely” on that original meaning. Thus did originalism—which had been percolating among conservative scholars and jurists like Antonin Scalia and Robert Bork—surge onto the public stage.

Thirty years later, after Donald Trump appointed a conservative supermajority to the Supreme Court, originalism has come to rule us all. Through the court, originalism shapes our social, political, and economic systems, from global problems like climate change to national issues like voting rights to deeply personal questions like what kind of medical care a doctor can provide.

Originalism has been subjected to a variety of searching critiques. The most common focuses on the difficulty—or even the outright impossibility—of discovering what a constitutional clause might have meant centuries ago, based on a thin, fragmentary, sometimes puzzling, and often contradictory historical record. I’ve made the same point about the constitutional amendments passed after the Civil War. But that critique, though it’s quite compelling, is by now well-trodden ground. The historian Jonathan Gienapp’s new book, Against Constitutional Originalism: A Historical Critique, injects a fresh, powerful new argument against originalism into the debate.

The book is careful and thorough—chock-full of historical evidence—but Gienapp’s argument is ultimately straightforward. Founding-era Americans didn’t think of the Constitution as the kind of thing that had a fixed meaning. Therefore, it wouldn’t have made sense to look for unchanging original meanings that were fixed for all time in the Constitution’s text. So if one would like to be an originalist, that original history says not to be an originalist. “When we recover Founding-era constitutionalism,” Gienapp writes, “we discover how deeply at odds originalism is with the history it claims to recover.” His book reveals “how un-originalist originalism turns out to be.”

Aside from occasional snark, this is actually a good brief intellectual history of originalism and of Professor Gienapp's critique.  But as for the Gienapp critique, I'm confident that Founding-era Americans did think at least some parts of the Constitution had a fixed meaning (like, for example, that each state gets two Senators). And once you concede that, then it's just a debate over how much they thought was fixed.

Or Bassok: Originalism as an Empty SignifierMichael Ramsey

Or Bassok (University of Nottingham  Faculty of Law and Social Sciences) has posted Originalism as an Empty Signifier (18 pages) on SSRN.  Here is the abstract:

In what sense is Dobbs an originalist judgment? Reva Siegel argues that Justice Samuel Alito’s majority opinion does not follow the originalist methodology, yet she insists it should be understood as an originalist judgment. [Ed.: The key articles are Reva B. Siegel, Memory Games: Dobbs’s Originalism as Anti-Democratic Living Constitutionalism-and Some Pathways for Resistance, 101 Tex. L. Rev. 1127 (2022) and Reva B. Siegel, The 'Levels of Generality' Game, or 'History and Tradition' as the Right’s Living Constitution, 47 Harv. J. L. & Pub. Pol'y (forthcoming 2024).]  According to Siegel, the brand “originalism” allows supporters of the Republican Party to promote a conservative vision of American identity through constitutional law while keeping the façade of speaking law and not politics. Siegel does not believe that revealing this doublespeak feature of originalism is enough to eradicate it. Instead, her aim is to make originalism an empty signifier—a brand with no distinct content behind it—by making it compatible with progressive ideology. I offer three lines of critique of Siegel’s argument. First, while Siegel is correct in identifying a version of originalism that is focused on American identity, Alito’s majority opinion in Dobbs—especially when compared to the dissenting opinion—avoids issues of identity. Second, Siegel has promoted the idea of constitutional amendments driven by social movements that do not follow the Article V procedure. Her support of this path undermines her ability to use the legal language to criticize judgments, such as Dobbs, in which the change in constitutional interpretation was driven by a social movement. Finally, I argue that one viable way out of the current dire situation of a lack of boundary between law and politics in constitutional law is to take identity issues away from the Court. In this manner, constitutional reason—rather than public will—could better control the development of constitutional law within the Court. Surprisingly, Alito’s judgment in Dobbs opens the path for achieving this result. Yet rather than recognizing Alito as her true ally in making identity issues less court-centric, Siegel prefers to adopt originalism as a tool for promoting a progressive identity-vision while transforming originalism into an empty signifier thus further undermining the boundary between law and politics.

Saikrishna Prakash: The Spirit of the LawMichael Ramsey

Saikrishna Prakash (University of Virginia School of Law) has posted The Spirit of the Law: "Controuling the Letter by the Plain Spirit" (U. Penn. L. Rev., forthcoming) (71 pages) on SSRN.  Here is the abstract:

The Founders were not textualists. Certainly, the letter of the law mattered quite a bit. But, as William Blackstone noted, interpretation also required the consideration of purpose, intent, and reason-what he and others called "spirit." This Article makes several contributions. First, spirit was a familiar tool of legal interpretation, applicable to constitutions, laws, treaties, judicial precedents, and even executive rules. Second, spirit was a potent interpretive factor, for it not only helped resolve textual ambiguities, but people also invoked it to overcome a law's semantic meaning. More precisely, the Founders deployed spirit to generate a meaning that often trumped the letter of the law. Spirit might be used to extend the law beyond its letter-extensive interpretation. And spirit could restrict the meaning suggested by the letter of the law-restrictive interpretation. Third, spirit was not the peculiar province of the courts. Instead, spirit was more democratic, for everyone made free use of it. Early federal legislators, including James Madison, invoked spirit to make sense of the Constitution. Executives, including George Washington, Alexander Hamilton, Thomas Jefferson and many others utilized spirit to make sense of the Constitution, laws, treaties, and executive rules. John Marshall deployed spirit to defeat the letter of the law before he was Chief Justice and continued invoking it while on the bench. This excavation of Founding-era practices has implications for modern debates. To begin with, the Founders eschewed the extreme fixation on text that characterizes modern textualism. One should not use a late twentieth-century theory to make sense of late eighteenth-century documents, particularly the Constitution. Relatedly, given that the Founders frequently used spirit, textualists should reassess the claim that the Constitution mandates modern textualist precepts. Lastly, originalists of all stripes should refine their understanding of originalist methodology, for a proper conception of originalism should perhaps reflect the interpretive practices of the Founders. Public meaning originalists, original methods originalists, and every other species of originalist must come to grips with spirit's central role in early American thought and practice. For too long, we have been in the thrall of a textualism that is at war with the pervasive use of spirit at the Founding.

Sherif Girgis: Originalism's Age of IroniesMichael Ramsey

Sherif Girgis (Notre Dame Law School) has posted Originalism's Age of Ironies (138 Harv. L. Rev. F. (forthcoming 2024)) (20 pages) on SSRN.  Here is the abstract:

Guns, abortion, religious establishments, Presidential power: While today’s Supreme Court identifies as originalist, it has settled constitutional questions on these and many other issues using history and tradition, not just original meaning. Scholars debate whether this trend can be squared with originalism. Last Term, the originalist Justices joined the fray. A close look at their dueling opinions reveals the divergent paths that originalists take when the method is pressed to its limits. It turns out that the purer one’s originalism at the level of theory, the less it constrains judges in practice. That is especially true for cases applying open-ended liberties like free speech and gun rights, where there are systematic reasons to expect balancing over time to be inevitable.  

The resulting dilemma — that stringency about originalist theory might reduce restraint in adjudication — reflects an irony for a modern movement born to rein in judges. Still, irony is not incoherence or even error. The developments discussed here are predictable results of a legal theory’s transition to governing philosophy on an apex court. Not only are broad rights and vague texts likelier to drive cases before a Court that resolves circuit splits; now that the Court identifies as originalist, it’s likelier to get cases that are close according to originalism. If the Priest-Klein hypothesis is right to predict a trend toward 50% plaintiff victories in litigated cases, perhaps by extension an originalist Supreme Court will see more cases where originalism isn’t conclusive. This is not to say original meaning does no work at the Court. The Court may even be advancing originalism by cases that never reach it because their originalist resolution would be predictable and expected. A method’s value isn’t exhausted by its footprint in the U.S. Reports. But the reach for non-textual criteria is no surprise.

Nor is it a betrayal of originalism as the theory has developed under decades of intellectual pressure. Modern academic originalism is not just a theory of adjudication (much less Supreme Court adjudication), not just a means of tying judges’ hands, but a theory of our higher law’s content. The law created by adoption of a text depends on interpretive conventions at the time. So among scholars, originalism has of its own accord become attuned to non-textual criteria — constitutional “backdrops,” general law, customary norms of interpretation, constitutional “construction” — that both traditionalism and judicially developed doctrines may reflect efforts (sometimes fumbling efforts) to capture. The practical pressures of governance are causing “chambers” originalism to converge on the direction taken by the academic variety. The method so developed may prove less simple, less peremptory, less useful in polemic against rivals than Judge Bork’s, but not for all that less principled.

Via Larry Solum at Legal Theory Blog, who says "Highly recommended. Download it while it's hot!"

Jonathan Gienapp vs. Stephen Sachs on OriginalismMichael Ramsey

At the National Constitution Center, For or Against Constitutional Originalism?: A Debate (video).  From the event description:

Stanford University professor Jonathan Gienapp, author of the new book, Against Constitutional Originalism: A Historical Critique, is joined by Stephen Sachs of Harvard Law School to discuss Gienapp’s challenge to originalists’ unspoken assumptions about the Constitution, the history of originalism as a constitutional methodology, and its role in constitutional interpretation today. Thomas Donnelly, chief content officer at the National Constitution Center, moderates.

Participants

Jonathan Gienapp is associate professor of history and law at Stanford University. He has published widely on the Constitution in American life and is the author of the prizewinning The Second Creation: Fixing the American Constitution in the Founding Era. His second book is Against Constitutional Originalism: A Historical Critique. He is a member of the Historians Council on the Constitution at the Brennan Center for Justice and has contributed to a number of historians' amicus briefs to the Supreme Court of the United States.

Stephen Sachs is the Antonin Scalia Professor of Law at Harvard Law School. He previously taught at Duke University School of Law and as a visiting professor at the University of Chicago Law School. Before entering academia, he practiced in the Washington, D.C., litigation group of Mayer Brown LLP, and he clerked for Chief Justice John G. Roberts Jr. as well as for Judge Stephen F. Williams of the U.S. Court of Appeals for the D.C. Circuit.

Thomas Donnelly is chief content officer at the National Constitution Center. Prior to joining the Center in 2016, he served as counsel at the Constitutional Accountability Center, as a Climenko Fellow and Lecturer on Law at Harvard Law School, and as a law clerk for Judge Thomas Ambro on the U.S. Court of Appeals for the Third Circuit.

Additional Resources

• Jonathan Gienapp, “Against Constitutional Originalism: A Historical Critique” (2024)
• Stephen Sachs and Will Baude, “Originalism and the Law of the Past” (Law and History Review, 2019)
• Michael Stokes Paulsen and Vasen Kesavan, “Is West Virginia Unconstitutional?” (90 Cal L. Rev. 291, 2002)
• William Baude, Jud Campbell, and Stephen Sachs, “General Law and the Fourteenth Amendment” (76 Stanford L. Rev 1185, 2024)
• Jud Campbell, “Four Views of the Nature of the Union” (47 Harvard J. Law & Public Policy 2, 2024)
• Fletcher v. Peck (1810)
• District of Columbia v. Heller (2008)
• United States v. Rahimi (2024)

Lucas Morel reviews "Black Writers of the Founding Era" by James BaskerMichael Ramsey

At Law & Liberty, Lucas E. Morel (Washington & Lee University - Politics): Black Americans’ Indispensable Contribution to the Founding (reviewing Black Writers of the Founding Era, by James G. Basker (Library of America, 2023)).  From the introduction:

Omission of the political opinions and literary creations of black Americans during the Founding era has produced an incomplete history of the birth and growth of the American republic that has distorted Americans’ self-understanding of who they are as a diverse but whole people. The most pernicious effect has been to reinforce the white supremacy that debilitated early and longstanding efforts to rid the nation of racial slavery and secure the equal protection of the law to all Americans regardless of race, color, or nation of origin. In Black Writers of the Founding Era, James G. Basker has compiled an anthology of 200 texts from more than 120 black writers that offers a much overdue public service announcement regarding the contribution that blacks have made to America.

The volume’s raison d’etre, according to the foreword by historian Annette Gordon-Reed, is “recovering marginalized voices.” To borrow from Carter G. Woodson, the creator of Negro History Week (now African American History Month), such a volume presents “not Negro History, but the Negro in history.” He added, “The case of the Negro is well taken care of when it is shown how he has influenced the development of civilization.” For far too long, few American history textbooks contained references to blacks in American history that extended beyond being either victims of white injustice or beneficiaries of white largesse. Their contributions to their liberation on American soil are largely missing, a liberation that also helped white Americans live up to their noblest professions.

The need for this volume is apparent when we consider the hue and cry raised last year by Florida’s revision of state standards of African American history for K-12 when they referred to the ability of enslaved blacks to express their humanity, talents, and skills despite their enslavement. Had the letters, stories, sermons, petitions, and literature contained in this volume been more widely known, the proposed standards would have been less susceptible to caricature and misrepresentation. Some had even condemned the new standards as teaching, along the lines of John C. Calhoun’s “positive good” thesis, that American slavery was a benefit to the slaves. Basker rightly declares that “the myth of Black passivity—if it ever had any truth to it—is finished.”

Curtis Bradley on Historical Gloss in Foreign AffairsMichael Ramsey

At Volokh Conspiracy, Curtis Bradley (Chicago) is guest blogging on his new book Historical Gloss and Foreign Affairs: Constitutional Authority in Practice (Harvard University Press 2024).  His initial post is New Book on Historical Gloss and Foreign Affairs, Part I: What is historical gloss?  From the introduction:

In a series of five posts this week, I will describe my new book, Historical Gloss and Foreign Affairs: Constitutional Authority in Practice (Harvard University Press 2024). This first post discusses the phenomenon of "historical gloss" and explains why it has played an especially significant role in the foreign affairs area.

The core question addressed in the book is how foreign affairs authority is distributed between Congress and the President. The first thing that you might want to do in answering this question would be to consult the text of the Constitution. You would immediately encounter a problem, however, which is that the text is silent about many key issues of foreign affairs authority. For example, there is no mention in the text of the powers to declare neutrality, issue passports, recognize foreign governments, extradite criminal suspects, enter into executive agreements, terminate treaties, regulate the exclusion and deportation of non-citizens, or wage undeclared wars. As Louis Henkin noted long ago in his treatise on foreign relations law, there are a host of what appear to be "missing" foreign affairs powers that "were clearly intended for, and have always been exercised by, the federal government."

These omissions would be less of a problem if it were easy to amend the Constitution, but it is not. Amendments normally require a two-thirds vote in both the House and the Senate and an approval by three-fourths of the states. In part because of this difficulty, none of the foreign affairs provisions of the Constitution have ever been amended in the more than 230 years since the Constitution took effect.

Yet, to state the obvious, we live in a world that is very different from that of the Founding. The country has grown from a small group of former colonies along the eastern seaboard to fifty states including Alaska and Hawaii. The United States was a party to seven international agreements at the Founding and is now a party to many thousands. The country was extremely weak militarily at the Founding, with only about 700 people in the army and no navy, and it is now a global superpower with bases around the world and nuclear weapons. The State Department at the Founding was Thomas Jefferson and a couple of clerks, but it now has over 70,000 employees. From the perspective of the constitutional text, we are managing foreign affairs with a horse-and-buggy constitution.

As for the rest of the world, at the Founding it was thought that there were only a handful of "civilized states" with which a country like the United States might have formal diplomatic relations; now there are over 190 recognized nations. Today, threats to the United States arise less from the danger of an invasion than from the possibility of terrorist attacks, nuclear proliferation, cyber warfare, and global pandemics. International law, meanwhile, has changed dramatically: banning war as an instrument of foreign policy, regulating the protection of human rights, and seeking to protect the global environment, to name just a few of the many developments.

Perhaps the courts could fill in the gaps of our old and hard to change Constitution. But for a variety of reasons judicial review tends to be low in the foreign affairs area. There is often a lack of standing to sue, and the political question doctrine has long had particular vibrancy in the foreign affairs area. In applying these and other limiting doctrines, judges perceive that their expertise, access to relevant information, and ability to predict the outcome of decisions is lower in the foreign affairs space than in other areas. This means that judicial review of foreign affairs authority is at best sporadic, and sometimes non-existent.

As a result, constitutional law in this area is often interpreted and developed outside the courts through the practices of government, and these practices then become a form of non-judicial precedent. We can call these precedential practices "historical gloss." The word "gloss" is being used here in the sense of explaining or annotating a text, akin to medieval scholars "glossing" the Code of Justinian. As Justice Felix Frankfurter observed in his concurrence in the Youngstown steel seizure case, it "is an inadmissibly narrow conception of American constitutional law to confine it to the words of the Constitution and to disregard the gloss which life has written upon them."

Marty Lederman on the Unitary ExecutiveMichael Ramsey

At Balkinization, Marty Lederman: A Vivid Illustration of the Impact of the Roberts Court's Radical New "Unitary Executive" Doctrine.  From the introduction:

In a story published this weekend in the New York Times, Michael Schmidt writes about President Trump's frustrations in April 2018 when Attorney General Jeff Sessions refused to prosecute Hillary Clinton and Jim Comey (presumably because there was no evidentiary basis for such prosecutions).  In an Oval Office meeting, Trump "told startled aides" that if Sessions refused to do so, Trump would "prosecute [Clinton and Comey] himself."

Hoping to head off such an unprecedented and indefensible presidential intervention, White House Counsel Don McGahn told Trump he would prepare a memorandum "explaining to you what the law is and how it works, and I’ll give that memo to you and you can decide what you want to do."  Schmidt reports that McGahn eventually gave Trump a "polished" version of the memo, but it appears that Schmidt has only seen two earlier drafts of it, excerpts from which the Times has now published.  

 

The memos are interesting for several reasons.  What most struck me, however, was just how obsolete those memos might now be, just six years later, because of intervening legal developments--namely, two radical opinions of the Supreme Court, both written by Chief Justice John Roberts.  Those opinions, if taken at face value, appear to confirm Donald Trump's view--rejected by McGahn--not only that the President is constitutionally entitled to control DOJ's criminal law enforcement investigations and prosecutions, and not only that the President himself could perform those functions, but also that Congress may not prohibit the President from directing DOJ officials to abuse their statutory authorities for unlawful ends. ...

 

I think it's not so "radical" to suppose that the President, who "shall be vested" with the executive power, "is constitutionally entitled to control DOJ's criminal law enforcement investigations and prosecutions." Necessarily the President must have this power, or the President is not vested with the executive power: criminal law enforcement is the core of executive power.  This is the central proposition of Justice Scalia's dissent in Morrison v. Olson. I also think it is only marginally more "radical" (and still not very radical) to suppose that "the President himself could perform those functions." If there were no DOJ or Attorney General, of course the President could perform these functions.  The question is whether Congress can force the President to work through the DOJ.  To that, I say maybe, so long as it doesn't materially diminish the President's control of law execution. At minimum that in turns means that the first proposition -- that "the President is constitutionally entitled to control DOJ's criminal law enforcement investigations and prosecutions" -- must be true.  And further it would seem that if the DOJ were unable to prosecute (due for example to vacant offices) the President could (and indeed under the take care clause would be obligated to) undertake the prosecution directly.

 

As to the third proposition -- that "Congress may not prohibit the President from directing DOJ officials to abuse their statutory authorities for unlawful ends," it seems to me that this is probably not constitutionally precluded, but I'm not entirely sure what it means.  "Abuse their statutory authorities" and "unlawful ends" could be interpreted in various ways, and I'd want to know for sure what the author meant by them before I agreed to the proposition. At minimum, it seems to me that Congress could prohibit the President from directing DOJ officials to act contrary to the Constitution.  It's not clear to me, though, that the Court would take a different view.  Nothing in the conventional originalist version of the unitary executive would require it to.

Katie Eyer: Title IX in the Age of TextualismMichael Ramsey

Katie R. Eyer (Rutgers Law School) has posted Title IX in the Age of Textualism (86 Ohio State L. J. __ (forthcoming, 2025)) (58 pages) on SSRN.  Here is the abstract:

Title IX has long been thought of as a quintessentially administrative statute, i.e., a statute whose contours are defined primarily by its agency interpreters. Known as much for its administrative interpretations as for its statutory text, both the public image, and legal enforcement of Title IX have been profoundly shaped by the administrative state. This Article asks: what becomes of such an “administrative law” in the wake of the rise of textualism?

This question has gained new urgency, as the most recent Title IX regulations issued by the Department of Education are facing numerous legal challenges—and as the Supreme Court’s opinion in Loper Bright Industries v. Raimondo has led to a rapidly shifting administrative law landscape. This Article thus takes up the question of how Title IX may be understood in the changed interpretive environment. Does Title IX’s statutory text provide meaningful guidance in relation to contemporary Title IX disputes? And how might an examination of Title IX’s regulations help us to understand the space for administrative agencies to act in a post-Loper Bright world?

This Article contends that Title IX’s statutory text can and does provide clear guidance on many of the contemporary issues that have been raised in challenges to the Department of Education’s most recent regulations. Thus, simply taking Title IX’s statutory text seriously can answer the question of whether (as the DOE’s new regulations provide) anti-LGBT discrimination is proscribed (it is), whether regulatory exceptions that exceed the statutory text must be harmonized with the statute (they must), and whether the DOE’s recently adopted hostile environment standard is too broad (it is not).

But this Article also suggests that other, future, challenges to Title IX’s administrative infrastructure may prove more complex. Taking up the example of Title IX’s athletics regulations and guidance, the Article suggests a series of important questions that the courts will have to resolve as they consider the role for statutory text—and the role for administrative law—today. While the answers to such questions will necessarily be case-specific—and as the case of Title IX”s athletics regulations shows, may well be susceptible of conflicting answers—they will be central to understanding the role for administrative law in our modern textualist era.

Judge Bumatay Strikes Yet Again in Devas v. AntrixMichael Ramsey

The Supreme Court granted fifteen new cases after its beginning-of-the-term conference, but there' seems to be little of major originalist interest in any of them.  One worth mentioning, though, is CC/Devas (Mauritius) Limited v. Antrix Corp. Ltd., in which the question presented is:

Whether plaintiffs must prove minimum contacts before federal courts may assert personal jurisdiction over foreign states sued under the Foreign Sovereign Immunities Act.

The Ninth Circuit answered this question "yes", over a dissent from denial of rehearing en banc by Judge Patrick Bumatay (I've lost count of how many Bumatay dissents have led to cert grants).

As background, the federal Foreign Sovereign Immunities Act (FSIA) provides (in 28 U.S.C. § 1330(b)) that in suits against foreign sovereign defendants, "Personal jurisdiction over a foreign state shall exist" where the FSIA establishes an exception to sovereign immunity.  The Ninth Circuit somehow managed to find that the statute requires plaintiffs suing foreign sovereign defendants to show not only that an exception to immunity exists, but also that the defendant has minimum contacts with the forum jurisdiction of the kind required for personal jurisdiction under the due process clause.  As Judge Bumatay's dissent makes painfully clear, the statute absolutely does not say that, and especially with the Court's history of giving the FSIA a textualist reading, I'd be shocked if the Court found otherwise.

But that just sets up the more difficult constitutional question.  Perhaps the personal jurisdiction section of the FSIA is unconstitutional. The central question becomes whether a foreign sovereign (or in this case a foreign state-owned corporation) is a "person" within the meaning of the Fifth Amendment.  The answer is not obvious.  Under current law, private corporations are "persons" for this purpose but U.S. states are not. As an originalist matter, the sometimes-originalist-oriented immunities scholar Ingrid Wuerth has a powerful article arguing on originalist grounds that foreign sovereigns are
"persons": Ingrid Wuerth, The Due Process and Other Constitutional Rights of Foreign Nations, 88 Fordham L. Rev.
633 (2019).  But another sometimes-originalist-oriented scholar, my casebook co-author Donald (Trey) Childress, says otherwise: Donald Earl Childress III, Questioning the Constitutional Rights of Foreign Nations, 88 Fordham L. Rev. Online 60 (2019).  And in Republic of Argentina v. Weltover, Inc., 504 U.S. 607 (1992), Justice Scalia heavily implied that foreign states do not have constitutional rights. So there is a lurking issue of substantial originalist interest.

Sadly, though, the Court could easily reverse the Ninth Circuit on statutory grounds and remand for consideration of the constitutional issue (which would be a win for Judge Bumatay, but not very interesting).

Josh Blackman: A Historical Record of Special Counsels Before WatergateMichael Ramsey

Josh Blackman (South Texas College of Law Houston) has posted A Historical Record of Special Counsels Before Watergate (27 pages) on SSRN.  Here is the abstract:

This Article presents a corpus of primary sources that were written by Presidents, Attorneys General, United States Attorneys, Special Counsels, and others between the 1850s and the 1950s.  This corpus reproduces primary sources from more than a dozen archives to present a better legal account showing how Special Counsels were retained by Attorneys General under Presidents Buchanan, Andrew Johnson, Grant, Garfield, Theodore Roosevelt, and Truman.

During these six presidential administrations, Attorneys General retained outside lawyers as Special Counsels either: (1) to assist a U.S. Attorney with prosecutions, or (2) to assist the Attorney General with an investigation. In none of these matters did the Attorney General appoint an outside lawyer as a Special Counsel, and then delegate to him the powers now claimed by modern special counsels: all of the powers of a Senate-confirmed U.S. Attorney.

There was one outlier. In 1924, during the Coolidge Administration, Congress enacted legislation establishing Senate-confirmed special counsels to prosecute Teapot Dome Scandal defendants. These Special Counsels were afforded “total independence.”  It is doubtful that these positions would be consistent with the Supreme Court’s modern separation of powers jurisprudence.

This practice shows that the positions of special counsels in the post-Watergate era are not analogous to the positions of special counsels in the pre-Watergate era. Thus pre-Watergate history does not provide support for the modern, post-Watergate special counsel and the vast powers that they are purportedly vested with.

Adam Carrington on William Allen on MontesquieuMichael Ramsey

At Law & Liberty, Adam M. Carrington (Ashland University): Revisiting The Spirit of the Laws.  From the introduction: 

Scholarly interest in Montesquieu, the eighteenth-century French political thinker, has blossomed over the last 20 years. In addition to further analyzing his longstanding link to the American Founders, scholars have looked to him for thoughts on international relations, despotism, and the relationship between culture and law.

In line with that renewed interest, Anthem Press has recently released a new translation and commentary on Montesquieu’s magnum opus, The Spirit of the Laws, from William B. Allen. Allen, who served under the Reagan and Bush administrations and has published extensively on the American founding, certainly did not need to publish this translation and commentary out of any professional need. Instead, his work exudes not just intellectual curiosity but also personal love for the subject.

This volume also has a long backstory. In his preface to The Spirit of the Laws, Montesquieu writes, “I request a consideration which I fear some may not accord me: that is, not to judge by a moment’s reading a work of twenty years.” William B. Allen has been working on this translation for more than fifty.

I cannot do justice to Allen’s effort. He engages the immense complexity of The Spirit of the Laws with a range and depth worthy of his subject. He speaks of and with Montesquieu as an old friend with whom he has conversed warmly and beneficially for much of his life.

To understand Allen’s distinct contribution to the study of Montesquieu, we must touch on other views of the work to which he responds. For some interpreters, Montesquieu’s “spirit” consists of something akin to the zeitgeist. The laws have an underlying sentiment that the lawmaker must perceive, react to, and to some limited extent, guide. Moreover, The Spirit of the Laws lacks any real foundation in nature. Instead, Montesquieu acts as a kind of sociologist, dispassionately observing the infinite variety among peoples, their societies, and their political orders as part of pinpointing the spirit of each. His answers to political problems consist largely of a moderation built around economic commerce that seeks peace at the cost of the noble, comfort instead of virtue. His system of separation of powers, too, partakes in this lowering of the political by seeking to limit governmental power to thwart despotism. These answers, moreover, remain subject to the deterministic limitations of climate and terrain that constrain human possibility and thus, ultimately, human political achievement.

Allen’s extended commentary challenges these and similar interpretations. His Montesquieu looks more like Aristotle than he does a modern sociologist. At the same time, Allen’s Montesquieu does not merely reprint Ancient thoughts. Instead, Allen writes, “Montesquieu labored to integrate what was thought prior to modernity with what surfaced in modern theorizing.” This Montesquieu has one foot in the classical world and another in the early modern, seeking to place them in helpful conversation in pursuit of a politics superior to either.

And here is the book description from Amazon:

The Spirit of the Laws not only systematizes the foundational ideas of “separation of powers” and “balances and checks,” it provides the decisive response to the question of whether power in the nation-state can be limited in the aftermath of the Westphalian settlement of 1648. It describes a civilizational change through which power becomes domesticated, with built-in resistance to attempts to absolutize (or make total) political power. As such, it is the Bible of modern politics, now made more accessible to English readers than it ever has been.

Josh Blackman on the Appeal in the Special Counsel LitigationMichael Ramsey

At Volokh Conspiracy, Josh Blackman: New Eleventh Circuit Amicus Brief In Special Counsel Appeal.  In summary:

[Yesterday] our team submitted an amicus brief in United States v. Trump before the Eleventh Circuit. This case is an appeal from Judge Cannon's decision declaring the appointment of the Special Counsel to be unlawful. Our brief was filed on behalf of Robert Ray, Professor Seth Barrett Tillman, and the Landmark Legal Foundation. We are grateful to Michael A. Sasso for serving as local counsel.

Tillman and Landmark joined our District Court brief. We are honored that Ray joined our effort on appeal. Ray served as one of the last Independent Counsels, replacing Kenneth W. Starr in October 1999, and was in charge of the Whitewater and Monica Lewinsky investigations. He concluded the investigations by March 2002 with the decision not to prosecute President Clinton once he left office.

Our brief makes four primary arguments: ...

And from the brief's summary of argument:

The District Court correctly dismissed the indictment. Amici advance four rationales to support the judgment below. First, from the 1850s through the 1950s, during six presidential administrations, Attorneys General retained outside lawyers as Special Counsels either: to assist a U.S. Attorney with prosecutions, or to assist the Attorney General with an investigation. And the Watergate Special Prosecutor is a thin reed to stand on. United States v. Nixon expressly and repeatedly recognized that the Watergate Special Prosecutor had “unique authority and tenure.” 418 U.S. 683, 694 (1974). Further, in 1973, the Acting Attorney General, with the acquiescence of the President, granted the Special Prosecutor unsurpassed insulation against removal. Apart from those compromises, this insulation would be inconsistent with Bowsher v. Synar. 478 U.S. 714 (1986). Whether the Nixon analysis is holding or dicta, it is not controlling, and it should not be extended to today’s context under today’s statutory and regulatory framework.

Second, Special Counsel Jack Smith (“Smith”) cannot rely on the permanent indefinite appropriation found in a “note” to 28 U.S.C. §591. In 2004, the Government Accountability Office determined that this appropriation can be used for “investigat[ing] and prosecut[ing] high ranking government officials.”1 But Trump was not a “high ranking” official when he was indicted, and all the alleged conduct took place after he was out of office. In these circumstances, the funding mechanism in Section 591’s note cannot be used to pay Smith.

Third, Supreme Court precedent distinguishes between officers and employees. An “Officer of the United States” position must have a duration that is continuous. Though Smith’s prosecution has already continued for several years, and his duties are regular, his position is not continuous, because his extant position would not continue to a successor. Morrison v. Olson, 487 U.S. 654, 672 (1988). At most, Smith is a mere “employee” who cannot exercise the sweeping powers of a Senateconfirmed U.S. Attorney.

Finally, Amici have properly preserved for review by the Supreme Court the question of whether Morrison v. Olson should be overruled. ...

Preemption and Trump v. Anderson [Updated with a Response from Josh Blackman]Michael Ramsey

Everyone seems to be offering a view on Trump v. Anderson, the Supreme Court's presidential disqualification case from last term, so I'll offer one too (different from my earlier suggestions).  I agree with critics that the Court's opinion does not hold together well on originalist grounds and instead seems more directed to the perceived problem of presidential disqualification being determined piecemeal at a state-by-state level.  Andrew Hyman's recent post on the federal insurrection statute got me thinking about whether the case could be resolved as a matter of preemption, without reaching any of the hard constitutional questions. 28 U.S.C. 2383 provides:

Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.

Originally passed in 1862 and revised in 1878, the last part of the statute seems clearly an implementation of Section 3 of the Fourteenth Amendment.  It gives at least a partial answer to the question "who decides?" whether a potential officeholder is disqualified for participating in insurrection: that is (or at least that can be) decided in a federal criminal prosecution.

What if states also purport to decide the disqualification issue?  Section 2383 doesn't directly exclude states from deciding, so on a narrow view of preemption perhaps states and the federal government could make parallel and opposing determinations of disqualification.  But at least under modern preemption law, a state law is preempted if it's an obstacle to the purpose of the federal law.  And we might conclude that a purpose of the federal law is to establish a federal pathway to disqualification to the exclusion of piecemeal state-by-state determinations (for the reasons the Supreme Court gave in its opinion).  It's often said in preemption determinations that a key question is whether the federal statute meant merely to establish a baseline to which states could add if they wanted, or whether instead the federal statute was understood as a uniform national standard.  Again, for the policy reasons the Court described, at least for federal offices, and especially for the presidency, a single federal standard makes the most sense.  Thus one could say that Section 2383 established the way to invoke insurrection-based disqualification, to the exclusion of other routes to disqualification through state courts and procedures.

Suppose that after a number of controversies over who is a natural born citizen (and thus eligible for the presidency), Congress established a procedure under which a candidate for the presidency, wishing to challenge the natural-born status of a competitor, could bring a claim for declaratory relief in a designated federal court. Would this preempt alternative channels at the state level for excluding candidates from the ballot on this ground?  I think it might.  The purpose of the hypothetical statute, one might say, is to establish a single forum to resolve the issue (even if the statute does not say so in so many words).  My suggested reading of Section 2383 is parallel, but perhaps stronger given the potentially difficult factual issues involved in assessing participation in insurrection.

William Baude and Michael Paulsen discuss and reject something like this argument in their extended assessment of presidential disqualification under Section 3, and initially I found their argument persuasive.  They frame the issue as whether conviction under Section 2383 is a prerequisite to disqualification, and I think the answer is likely no.  There might be other federal pathways to disqualification.  But thinking of the matter as one of preemption -- especially in light of the Court's concern about multifarious state-level determinations -- makes me think it's plausible that Section 2383 excludes state pathways to disqualification.  And that conclusion would mostly get to where the Court wanted to be in Trump v. Anderson, without having to squeeze the result out of the Constitution (while also avoiding difficult questions like whether Section 3 applies to the presidency).

UPDATE:  In response, Josh Blackman points to this paper (with Seth Barrett Tillman): What Happens if the Biden Administration Prosecutes and Convicts Donald Trump of Violating 18 U.S.C. § 2383? (2021 U. Ill. L. Rev. Online 190 (April 30, 2021)).  Here is the abstract:

President Trump’s term in office has drawn to a close, and the Biden administration has begun. Attorney General Merrick Garland will soon face a difficult decision: Should he pursue a criminal prosecution of Trump for his conduct leading up to, and during the events of January 6, 2020? One possible basis for prosecution would be under the Insurrection Act, 18 U.S.C. § 2383. This statute provides:

Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.

In this Article, we take no position whether Trump committed the substantive offenses of inciting or engaging in an insurrection. Rather, we will analyze the potential legal consequences of convicting Trump under this statute. Specifically, what would it mean for Trump to be “incapable of holding any office under the United States.” Would this punishment disqualify Trump for serving a second term as President, should he be elected?

Attorney General Garland’s decision will be complicated because there are no settled authorities to answer these legal questions. He will also face tough political choices. Any prosecution could be seen as an effort to disqualify the presumptive Republican nominee for President in 2024. In effect, a Biden Administration prosecution could knock out its most likely political opponent. A substantial segment of the public may view the Attorney General as disenfranchising tens of millions of voters. This decision is fraught with difficulty.

However, we think Garland’s decision is simpler in one regard: Trump’s conviction under § 2383 would not prevent his serving in the White House again. In our view, if Trump were convicted of violating § 2383, he would be disqualified from holding appointed federal positions. However, that conviction would not disqualify him from holding the presidency or any other elected federal position. We think our reading is correct as a matter of original public meaning with respect to the Constitution of 1788. And this conclusion is unchanged by Sections 3 and 5 of the Fourteenth Amendment. Our position is supported by modern Supreme Court and other federal court precedent.

In our view, even if Trump were convicted of violating § 2383, he would not be disqualified from serving a second term as President.

This Article proceeds in five parts. Part I explains that under the Constitution of 1788, Congress cannot add qualifications for elected federal officials. To illustrate our position, Part II analyzes an anti-bribery statute that the first Congress enacted in 1790. This statute imposes additional qualifications on certain federal positions. But, we argue, it should not be read to impose additional qualifications on elected federal positions. In Part III, we consider whether our general position is altered by the ratification of the Fourteenth Amendment. In other words, do Sections 3 and 5 of the Fourteenth Amendment give Congress the power to impose additional qualifications on holding elected federal positions? Part IV traces the history of the Insurrection Act, 18 U.S.C. § 2383. The Insurrection Act has remained virtually unchanged since President Lincoln signed it into law in 1862. This law should not be read to impose additional qualifications on elected federal officials. Finally, in Part V, we consider an amended, hypothetical version of § 2383 in which Congress expressly invoked its powers under Sections 3 and 5 of the Fourteenth Amendment. Even under this hypothetical statute, we still do not think Congress could disqualify former President Trump from serving a second term in office.

I don't necessarily disagree.  My post above was assuming without deciding that § 2383 disqualification applies to the President.

If a Candidate Has Been Charged and Convicted of Insurrection in a Court of Law She’d Still Be Eligible for the Presidency, Believe it or NotAndrew Hyman

Suppose a candidate has been convicted under the federal insurrection statute, 28 USC 2383.*  Would she then be ineligible for the presidency under Section Three of the Fourteenth Amendment?  No, she would not be ineligible.

Perhaps a conviction like that ought to cause ineligibility under a better Constitution and better laws than we have now, but a bare conviction under 28 USC 2383 is not legally enough under current law to disqualify. Of course (if elected) she could then be impeached, convicted of insurrection, and disqualified by the U.S. Senate.

I assume for present purposes that the presidency is generally an “office, civil or military, under the United States,” as the Fourteenth Amendment puts it.  I also assume that 28 USC 2383 was modified in 1878 to conform with the Fourteenth Amendment, and does enforce the Fourteenth Amendment even though that statute was enacted years before the Fourteenth Amendment was adopted in 1868.**

The problem for proponents of disqualification sans impeachment, regarding the presidency, is that both the Disqualification Clause in Section Three of the Fourteenth amendment, as well as the Disqualification Clause in 28 USC 2383, have implied exceptions of which the congressional authors were very likely aware.  For example, one of those exceptions is the pardon power: if someone convicted of insurrection is pardoned by the president then nobody disputes that the disqualification disappears (unless the person has also been deemed an insurrectionist in civil rather than criminal proceedings).  Another exception, and the one most pertinent here, is that the Constitution’s list of qualifications for the presidency is explicit and exclusive in Article II, Section One, and cannot be modified by some later general provision that does not even mention the presidency:

No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.

There’s nothing in there about insurrection, and the general language of the Fourteenth Amendment is not enough to amend the specific language of Article II, Section One (especially given that the Fourteenth Amendment is not shy about specifically describing various other government positions as being banned and/or triggering a ban). So, a federal jury in Guam or some other unusual jurisdiction could put a candidate in jail for insurrection, but cannot thereby stop any candidacy for president.

Nothing I’ve said here calls into question whether the President is subject to other clauses, like the Emoluments Clause or the Incompatibility Clause, because subjecting the president to those clauses does not necessarily conflict with or amend any other clause of the Constitution.  It should go without saying that a civil judgment or congressional finding would be no more successful than a criminal conviction in disqualifying an insurrectionist for the presidency, because the presidency is not a banned office under section three of the Fourteenth Amendment.  Of course, if elected, the candidate could then be impeached and disqualified, but the Constitution sets a high bar for that (two-thirds of the Senate), and the senators would be openly defying the result of a national election. 

* Yes, I’m alluding to ex-President Trump, who hasn’t been charged under the insurrection statute, and if he were charged then I doubt he would or should be found guilty, but imagine for argument’s sake that a presidential candidate is a convicted insurrectionist.  Incidentally, if Trump is elected in November, then there may well be another effort to disqualify him, either civilly or criminally.

** The pertinent 1862 statute said that a person convicted of insurrection “shall be forever incapable and disqualified to hold any office under the United States.”  The 1878 version then dropped the “forever” requirement, and instead said that a person convicted of insurrection “shall, moreover, be incapable of holding any office under the United States.”  The “forever” language that was cancelled in 1878 has been cancelled ever since.  It is very likely that the reason for the change in 1878 was to accommodate the Fourteenth Amendment’s language about removing disqualifications by supermajority. The possibility of a pardon was not the reason why the word “forever” was removed from the statute in 1878; if it had been the reason, then similar language (“forever thereafter incapable”) would likely have been removed in several other places in the very same 1878 volume of the revised statutes; also, by 1878, the courts had already explained that the pardon power was considered an automatic exception to general language in a law, so removing the word “forever” had no effect on pardons. See Carlisle v. United States, 83 U.S. 147, 153 (1873).

NOTE: this post supersedes an earlier post on this topic dated September 24 which has now been taken down.  

Lael Weinberger: The Origins of Church AutonomyMichael Ramsey

Lael Daniel Weinberger (Stanford Constitutional Law Center) has posted The Origins of Church Autonomy: Religious Liberty After Disestablishment (51 pages) on SSRN.  Here is the abstract:

The Supreme Court's most important cases on religious liberty in the last decade have featured religious institutions rather than individuals as the key actors. The Court has endorsed a "church autonomy" doctrine which protects religious institutions' ability to self-govern. In the name of church autonomy, the Court excepted religious institutions from what are apparently otherwise neutral and generally-applicable laws. Critics have argued that this is a novel move, out of step with the Court's precedents, and without deeper historical support-the critics claim that religious liberty in the early republic was not understood to protect church government from regulation by the civil government. Meanwhile, proponents of a robust church autonomy doctrine (including the Supreme Court) have traced the doctrine's antecedents to political theory and theology going back into the medieval period-but without devoting equal attention to the history of religious institutions in early America.

This article revisits the origins of church autonomy in American law. Rather than a late addition to the church-state conversation, church autonomy was one of the very first principles of church-state relations that American judges proclaimed in the aftermath of disestablishment. Most of the original American colonies had established churches. The United States Constitution prohibited any national establishment of religion, and the states with established churches gradually ended their legal establishments in the early republic. As judges in state courts wrestled with how to honor the principles of religious freedom and disestablishment in the following several decades, they gradually coalesced around a general principle to guide their decisions: matters of internal church governance should be respected by civil courts. In essence, the principle was church autonomy.

Moving from the descriptive to the normative, this paper argues that this history provides a solid foundation for church autonomy in American law. This historical foundation should matter to constitutional theorists of both originalist and common-law constitutionalist persuasions. The history also provides insight into some of the current questions about church autonomy doctrine. The early history of church autonomy presents alternative approaches to contemporary doctrine on issues of the doctrine's scope, jurisdictional character, and rationale.

My Further Thoughts on Justice Jackson, the Youngstown Case, and OriginalismMichael Ramsey

David Weisberg has this outstanding post on Justice Jackson's concurrence in the Youngstown case, responding to this post by Eric Segall.  I want to add two quick points.

First, to the extent Jackson was attacking originalism, his target was an especially unpersuasive version of originalism that is accepted by basically no modern originalists.  Here again is the famous "dreams of Pharaoh" quote from his concurrence: 

Just what our forefathers did envision, or would have envisioned had they foreseen modern conditions, must be divined from materials almost as enigmatic as the dreams Joseph was called upon to interpret for Pharaoh. A century and a half of partisan debate and scholarly speculation yields no net result, but only supplies more or less apt quotations from respected sources on each side of any question. They largely cancel each other. (343 US at 634-635, footnote omitted.)

No modern originalist thinks the inquiry is "what our forefathers ... would have envisioned had they foreseen modern conditions."   To the extent this is an attack on originalism (as Professor Segall contends), it's an attack on an outdated and discredited version.

(As an aside, Jackson was in any event wrong about Hamilton and Madison cancelling each other, at least as applied to the dispute in Youngstown.  Although Hamilton was likely the most pro-executive of the framers, I'm not aware of any comment by Hamilton that even remotely suggests that he would have thought the President could, on his own authority, direct seizure of private property within the United States. Hamilton and Madison disagreed on whether the British monarch's executive power was at least in part a template for the U.S. President's executive power, but the British monarch did not have power to seize private property within the realm.)

Second, Professor Segall disparages Justice Black's majority opinion in Youngstown as a "foolish formalism and rarely cited for anything of importance."  I disagree on two counts.  There's nothing foolish about Justice Black's opinion.  He makes a point that is fundamental to our constitutional structure: the President is not a lawmaker.  This proposition arises directly from the vesting clauses of Article I and Article II: the Congress has legislative (lawmaking) power and the President has executive (law execution) power.  That is the Constitution's single most important limitation on the power of the executive/President.  To be sure, the implications of that proposition are not always clear in particular cases. But that does not undermine that core truth of the proposition as a constitutional lodestar.  And in Youngstown the implications were in fact perfectly clear.  The President could not, on his own say-so, alter the property rights of people within the United States (as President Truman purported to do).

And it's not true that Black's opinion lacks force for today's courts. One of the most important modern cases for presidential power is Medellin v. Texas, in which (among other things) the George W. Bush administration claimed that a unilateral presidential policy to enforce a non-self-executing treaty could override a contrary state law.  Relying on Justice Black's opinion, the Court's majority rejected this claim of executive power: 

The President’s authority to act, as with the exercise of any governmental power, “must stem either from an act of Congress or from the Constitution itself.” [quoting Youngstown]. . . . The President has an array of political and diplomatic means available to enforce international obligations, but unilaterally converting a non-self-executing treaty into a self-executing one is not among them. The responsibility for transforming an international obligation arising from a non-self-executing treaty into domestic law falls to Congress. . . .'

The requirement that Congress, rather than the President, implement a non-self-executing treaty derives from the text of the Constitution . . . . Once a treaty is ratified without provisions clearly according it domestic effect . . . whether the treaty will ever have such effect is governed by the fundamental constitutional principle that the power to make the necessary laws is in Congress; the power to execute in the President. . . . see U.S. Const., Art. I, § 1 (“All legislative Powers herein granted shall be vested in a  of the United States”). . . . Indeed, “the President’s power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker.” Youngstown, 343 U.S., at 587.

(For more on the centrality of Justice Black's Youngstown opinion to constitutional structure, see my article The Vesting Clauses in Foreign Affairs, 91 George Washington Law Review at 1518-1523)  The short of it is that, as the Supreme Court in Medellin recognized,  Justice Black identified a core constitutional principle that retains its force today, even though  Justice Jackson's eloquent concurrence remains the favorite of academic commentators.

Eric Segall on Justice Jackson and Originalism/TextualismDavid Weisberg

Prof. Eric Segall has written a post, “The Boys are Back: Section 3, Trump's Failed Disqualification, and the Irrelevancy of Originalism,” criticizing a new article by Profs. William Baude and Michael Stokes Paulsen in which they vehemently reject the Supreme Court’s unanimous decision—Trump v. Andersen (2024)—which itself rejected their now-famous contention that Section 3 of the 14th Amendment bars Donald Trump from the presidency. 

At the outset, I would agree with Prof. Segall that Trump v. Andersen was correctly decided, although my reasons (here) are entirely different from his.  And, like him, I do not accept original-public-meaning-originalism as a valid theory of constitutional interpretation (see, here).  Rather, I consider myself to be a constitutional textualist.  In my mind, both originalism and textualism require courts, with certain very narrow exceptions, to interpret the Constitution in accordance with the plain meaning of its terms.  (Originalism entertains a rebuttable presumption that constitutional texts have time-dated meanings different from current meanings, while textualism, in my understanding, entertains a rebuttable presumption that those texts have meanings identical to current meanings.) 

Baude and Paulsen argue that, unlike the Court’s opinions in other “great” cases they cite, the opinions in Trump v. Andersen ignored the plain original meaning of Section 3.  In contrast, Segall asserts: “The ‘great’ cases cited with approval by [Baude and Paulsen] were demonstrably much more concerned with consequences than the words on the page or ancient historical events.”  The contention that originalism is irrelevant because it relies on text and history would apply equally well (or ill) to textualism.  Therefore, I want to demonstrate the weakness of that contention.

Segall seeks confirmation in one of those “great” decisions: Justice Robert Jackson’s concurring opinion in Youngstown Sheet & Tube Co. v. Sawyer, which dealt with President Truman’s seizure of privately-owned steel mills to provide war materiel for the Korean conflict.  Segall notes that Justice Jackson wrote:

Just what our forefathers did envision, or would have envisioned had they foreseen modern conditions, must be divined from materials almost as enigmatic as the dreams Joseph was called upon to interpret for Pharaoh. A century and a half of partisan debate and scholarly speculation yields no net result, but only supplies more or less apt quotations from respected sources on each side of any question. They largely cancel each other. (343 US at 634-635, footnote omitted.)

Segall asserts: “A more direct and complete condemnation of originalism is hard to imagine.”  But it is a truism to observe, as Jackson did, that we can never know with any certainty how people who are now dead would have decided an issue that they never thought about when they were alive.  That truism is not in any way a condemnation of originalism or textualism.

Immediately after the passage Segall quotes, Jackson’s concurrence examines the structure of “a workable government” (343 US at 635) created by the text of the Constitution.  Jackson sets forth his famous three-part analysis of lawful presidential authority: it is maximal when the president’s own authority is added to congressional authorization of presidential action; in a middling state when the president acts on his or her own authority without the approval or disapproval of Congress; at its lowest ebb when the president’s actions are incompatible with the express or implied will of Congress.

Having set forth this three-part analytical framework, which follows logically from the text of Articles I and II, Jackson turns to the seizure of the steel mills.  He decides that the seizure falls within the third classification, because, although Congress enacted three statutes authorizing presidential seizure of private property, Pres. Truman had concededly not complied with any of those three statutes.  Therefore, the seizure was incompatible with the will of Congress.

Having made that determination, Jackson considers whether the seizure can nevertheless be sustained because it “is within [the president’s] domain and beyond control by Congress.”  (343 US at 640.)  To begin, Jackson rejects the argument that the first sentence of Article II grants to the president “all the executive powers of which this Government is capable.”  (Id.)  One reason for that rejection is that, if that argument is correct, there would have been no reason to delegate explicitly certain powers to the president: “[I]t is difficult to see why the forefathers bothered to add several specific items, including some trifling ones.”  (343 US at 640-641.)  Jackson’s position, contrary to Segall, is here explicitly based on constitutional text, i.e., on Sections 2 and 3 of Article II.

Moreover, regarding the unlimited executive power claimed by Truman, Jackson says that “[t]he example of such unlimited executive power that must have most impressed the forefathers was the prerogative exercised by George III, and the description of its evils in the Declaration of Independence leads me to doubt that they were creating their new Executive in his image.”  (343 US at 641.)  Thus, Jackson explicitly relies on “ancient historical events” that Segall denigrates as irrelevant to important, historic Court opinions.   

In rejecting the argument that the president’s power as commander in chief of the armed forces authorized the seizure, Jackson states:

There are indications that the Constitution did not contemplate that the title Commander in Chief of the Army and Navy will constitute him also Commander in Chief of the country, its industries and its inhabitants. He has no monopoly of "war powers," whatever they are. While Congress cannot deprive the President of the command of the army and navy, only Congress can provide him an army or navy to command. It is also empowered to make rules for the "Government and Regulation of land and naval Forces," by which it may, to some unknown extent, impinge upon even command functions. (343 US at 643-644, emphasis in original.)

Again, Jackson relies on explicit constitutional text in dismissing Truman’s contention.

Pres. Truman also invoked the presidential oath, which requires the president to “take Care that the Laws be faithfully executed[.]”  But Jackson contrasts this language with that of the Fifth Amendment, which prohibits the deprivation of property “without due process of law[.]”  (343 US at 646.)  Relying explicitly on the Amendment’s text, Jackson rejected Truman’s position.

Finally, Truman argued that the president must have inherent powers “to deal with a crisis or an emergency according to the necessities of the case, the unarticulated assumption being that necessity knows no law.”  (Id.)  Justice Jackson rejected that argument as well:

The appeal, however, that we declare the existence of inherent powers ex necessitate to meet an emergency asks us to do what many think would be wise, although it is something the forefathers omitted. They knew what emergencies were, knew the pressures they engender for authoritative action, knew, too, how they afford a ready pretext for usurpation.… Aside from suspension of the privilege of the writ of habeas corpus in time of rebellion or invasion … , they made no express provision for exercise of extraordinary authority because of a crisis.  I do not think we rightfully may so amend their work, and, if we could, I am not convinced it would be wise to do so[.]  (343 US at 649-650, footnotes omitted.)

This is, again, an instance where Jackson relies explicitly on constitutional text—or, more precisely, the absence of constitutional text—to dispose of the president’s contention.

One final, and perhaps most important, point.  The very first paragraph of Jackson’s concurrence states:

The opinions of judges, no less than executives and publicists, often suffer the infirmity of confusing the issue of a power's validity with the cause it is invoked to promote, of confounding the permanent executive office with its temporary occupant. The tendency is strong to emphasize transient results upon policies -- such as wages or stabilization -- and lose sight of enduring consequences upon the balanced power structure of our Republic.  (343 US at 634.)

The warning against confusing “a power’s validity” with “the cause it is invoked to promote” strikes me as the precise opposite of Segall’s notion that Jackson’s concurrence minimizes the importance of text and history, while maximizing the importance of the consequences of a particular decision.  Prof. Segall is all about cause, while Justice Jackson focuses on validity grounded in text and history.

Gary Lawson: A Framework for Life Without ChevronMichael Ramsey

Gary Lawson (University of Florida Levin College of Law) has posted 'Then What?': A Framework for Life Without Chevron (60 Wake Forest L. Rev. __ (forthcoming 2025)) (50 pages) on SSRN.  Here is the abstract:

The Supreme Court overruled Chevron in Loper Bright Enterprises, Inc. v. Raimondo and Relentless, Inc. v. Dep’t of Commerce. What happens next? What should happen next?

This essay does not try to answer either of those important questions. Rather, it seeks to provide a framework to promote careful thinking about those questions. Specifically, any predictive or prescriptive account of the law governing judicial review of federal agency legal interpretations needs to think carefully about four issues.

First, what does “deference” actually mean in any given context? “Deference” can mean anything from polite respect to absolute obeisance, and everything in between. The magnitude of deference given to agency legal interpretations was never spelled out clearly during the Chevron era, and it is not clear how the term was used by the Court in Loper Bright and Relentless. Whether and how deference remains appropriate after Chevron may depend on precisely what one means by “deference.”

Second, what could justify deference, however, defined, in specific contexts? There are numerous possible justifications for deference, ranging from treating deference as a helpful tool for decisional accuracy to using it as a cost-savings measure. Having a clear sense of how some or all of those reasons apply in various contexts is crucial to clear thinking, whether one is engaged in description, prediction, or prescription.

Third, what was the precise holding in Loper Bright and Relentless, and does that holding really matter in the real world? The Court told lower courts not to apply Chevron, but it said surprisingly little about what would take Chevron’s place. Bare case-specific Skidmore deference? Pre-1984 law, which included at least some categorical deference to agencies when legal interpretation was bound up with fact-finding? Categorical deference grounded in epistemic concerns? The Court did not say. More importantly, even if one can decode the Court’s prescription in Loper Bright and Relentless, it remains to be seen how lower courts will respond to it. If lower courts constructed the Chevron doctrine for reasons of judicial economy, as I think they did, telling them not to apply Chevron may simply encourage them to find alternative means to accomplish the same ends.

Fourth, assuming that Loper Bright and Relentless successfully reduce the level of deference afforded agency legal interpretations, will that simply encourage litigants and lower courts to push cases out of the “law” category and into the “policy” category, where deference still prevails? The case law has never drawn a sharp line between law and policy, and nothing in Loper Bright or Relentless helps draw such a line. Is there any way to draw that line in the modern world?

Again, the object of this essay is not to answer these questions. It is to provide an analytic framework to promote clear thinking about the present and future direction of administrative law. Hopefully, it at least points the way towards asking the right questions.

Hunter Mason: A Unified Departmentalist Theory of Constitutional InterpretationMichael Ramsey

T. Hunter Mason (Yale Law School) has posted As the Force of Their Reasoning May Deserve: A Unified Departmentalist Theory of Constitutional Interpretation (69 pages) on SSRN.  Here is the abstract:

The power to interpret law is the power to govern at will. Although the Constitution parcels out interpretive authority over its own meaning among three coequal branches of government, the prevailing public narrative of constitutional interpretation is that the judiciary, with the Supreme Court at its apex, is the ultimate expositor of our shared charter. In the crusade against judicial supremacy, this departmentalist view of constitutional interpretation has garnered considerable scholarly support. But the conversation remains largely academic. In this Article, I seek to justify and reignite the interpretive faculties of the nonjudicial branches of the federal government. I do so by propounding a holistic theory of departmental interpretation of the Constitution that endeavors to catalog the full range of constitutional review available to each branch and how these tactics can legitimately resist the interpretive claims of rival branches. Through myriad revisionary devices, the Constitution precludes unilateral interpretive control by any one branch except in certain specified arenas of constitutional interpretation. The persuasive force of an interpretive stance-rather than its sourcedetermines the extent to which the interpretation is operationalized in the business of government. Departmentalist literature has stopped short of offering a systematic theory of when and how each branch may weigh in on a question of constitutional meaning and what effect their interpretive activities have on the ground. By appreciating the totality of their own interpretive prerogatives, the political branches may begin to jealously-and effectively-rebut claims of judicial supremacy and vindicate the fundamental American maxim that the only body from which there is no appeal on questions of fundamental law is the People.

Chad Squitieri: "Appropriate" Appropriations Challenges after Community FinancialMichael Ramsey

Chad Squitieri (Catholic University Columbus School of Law) has posted "Appropriate" Appropriations Challenges after Community Financial (Cato S.Ct. Review) (28 pages) on SSRN.  Here is the abstract:

This Article, prepared for the Cato Supreme Court Review, offers an analysis of the of the Supreme Court's Appropriations Clause decision in CFPB v. Community Financial.  The Article argues that, although the Supreme Court's Appropriations Clause holding was correct, future appropriations challenges should focus on the Necessary and Proper Clause rather than the Appropriations Clause.

And from the introduction:

As this article will explain, the Supreme Court got it right in Community Financial. But here’s the kicker: That does not mean that Section 5497 is constitutional. As I’ve argued before and as the Supreme Court now agrees,9 it is not the Appropriations Clause that vests Congress with the authority to appropriate funds. It is other constitutional text that vests Congress with the authority to enact appropriations laws. Thus, future “appropriate” appropriations challenges (as I have termed them) should focus on the limitations imposed by that other constitutional text—and not the Appropriations Clause itself. Understanding as much provides crucial context concerning the Court’s careful effort in Community Financial to explain that its “narrow” holding was limited to the requirements of the Appropriations Clause alone. The Court explicitly declined to address “other constitutional checks on Congress’ authority to create and fund an administrative agency.”

Jack Balkin: We Are All Cafeteria Originalists Now (and We Always Have Been)Michael Ramsey

Jack M. Balkin (Yale Law School) has posted We Are All Cafeteria Originalists Now (and We Always Have Been) (William & Mary Bill of Rights Journal (forthcoming 2024)) (35 pages) on SSRN.  Here is the abstract:

Americans are “cafeteria originalists." They pick and choose when to follow the views of the founders, framers, or adopters (as they understand them) and often artfully re-characterize these views to support contemporary political and legal arguments. Even self-described originalist judges are originalist only when they want to be.

Cafeteria originalism is not a pathology or a falling away from a pure or correct version of constitutional interpretation. Instead, the persistence of cafeteria originalism in American constitutional culture reveals the deep rhetorical structure of American constitutional law. That is why non-originalists make originalist arguments all the time without thereby being converted to the originalist creed. And that is why conservative originalists have always had to leaven their theories with qualifications, exceptions, and epicycles. 

Cafeteria originalism is our law. The most plausible versions of interpretive theory — including the most plausible versions of originalism — make their peace with cafeteria originalism; indeed, they enjoy the smorgasbord. Cafeteria originalism has multiple uses in American legal thought. It offers a powerful rhetoric for legal reform. It clears the ground for new doctrinal development. And it helps people express their contemporary values through appeals to constitutional memory.

Interpretive theories lie downstream from constitutional culture. Within that culture, originalist arguments are simply one element of a larger collection of rhetorical strategies. This produces the effect called cafeteria originalism. From the standpoint of conservative originalism, this fact is a problem. But from the standpoint of American constitutional culture, it is perfectly normal. It is just what we do around here.

I mostly agree, as a descriptive matter.  But (again, mostly) what is being described is rhetoric, not reality.  "Cafeteria originalists" -- including, to be sure, many judges -- reach conclusions on other grounds and use originalism to justify conclusions already reached (when originalism is helpful to them).  The originalist project -- real originalism -- would use originalism as a decisional tool to determine outcomes, not as a rhetorical tool to justify outcomes. This may not be what judges or (especially) legal commentators generally now do, but the originalism project is to change that.

I think, though, that recognizing "cafeteria originalism" has consequences for some leading fundamental critiques of real originalism.  One critique is that determining original meaning is not really possible. The idea of "cafeteria originalism" suggests that this is not only a critique of originalism (that is, the aspiration to use original meaning as a decisional tool) but rather a critique of the broader American legal culture, which embraces the idea of determinate original meaning when it's helpful.  Perhaps it's a fair critique (though I think not) -- but in any event it's taking on much more than originalism; it's saying that our entire constitutional discourse is misconceived.  The same could be said -- only more so -- of a second critique: that original meaning should not be the touchstone of interpretation because the original founding was undemocratic, closed to women, minorities, etc.  Again, this isn't just a critique of originalism, but a critique of the broader legal culture that, under cafeteria originalism, appeals to original meaning some of the time.  Thus neither critique works to discredit originalism alone; the prevalence of "cafeteria originalism" shows that originalism is actually just a subset of a legal mainstream that finds original meaning at least sometimes determinate and at least sometimes rhetorically attractive.

Eric Segall on Baude & Paulsen on Trump v. AndersonMichael Ramsey

At Dorf on Law, Eric Segall: The Boys are Back: Section 3, Trump's Failed Disqualification, and the Irrelevancy of Originalism.  From the introduction:

The Boys of Originalism are back. Professors William Baude and Michael Stokes Paulsen have published a follow up to their law review article concluding that Section 3 of the 14th Amendment disqualifies Donald Trump from holding federal office. That article went viral (by law professor standards) and placed the potential disqualification of Trump in the center of the American legal landscape. 

They begin their new article [ed.: noted here] by quoting Justice Oliver Wendell Holmes, Jr. for the proposition that “great cases, like hard cases, make bad law.” They lament that the Supreme Court did not follow their version of text and history when the justices unanimously reversed the Colorado Supreme Court’s disqualification of Trump, and they dislike the justices'  holding that states cannot disqualify federal officials absent congressional authorization. The authors view Trump v. Anderson as a complete jurisprudential disaster.

Both Professors Baude and Paulsen are diehard originalists who believe that the Supreme Court should pay careful attention to text and history rather than policy and consequences when making constitutional law decisions. Their article reflects great disappointment with the current justices for refusing to rise to the occasion in this “great” case and issuing an important decision disqualifying Trump from holding federal office again.

The authors discuss many "great" cases that most of us would also consider "great" in the way the authors and Holmes use that term (not because they, you, or I necessarily agree with the results). These cases, however, as the authors recognize (mostly in footnotes), are either non-originalist or anti-originalist and turn on pragmatic concerns. Baude and Paulsen, quite consistently with their prior work, take issue with this type of decision-making. They also, however, admire the courage of at least some of those cases to, in their own words, "rise to the occasion."

And from the conclusion:

The authors' discussion of these "great" cases where they believe the Court "rose to the occasion" is mysterious, given the often express denial of originalism in many of those cases. But the Court almost never decides constitutional law cases, much less "great" ones, with reliance on text and history. 

If the authors' predominant concern was method, not result, they might have spent more time critiquing the non-originalist aspects of these cases rather than putting most of that analysis in short footnotes. Whatever their reasons, these “great” cases get in the way of Baude's career-long quixotic quest to convince us that Originalism is our Law. It is not and never has been, as the authors' own recitation of the cases conclusively demonstrates.

The history of constitutional law in this country is one of pragmatism and attention to consequences, sometimes hidden by easily condemnable formalist irrelevancies. The greatest judges of them all--Marshall, Holmes, Brandeis, Hand, Cardozo, Jackson, Brennan, and Posner--all knew this and usually acted accordingly. The "great" cases cited with approval by the authors were demonstrably much more concerned with consequences than the words on the page or ancient historical events. 

Originalism is not now nor has it even been our law, and the authors' complaint about Trump v. Anderson is not really about method--such complaints rarely are. They wanted a different result, not believing those of us who for explicitly prudential reasons did not want Trump disqualified. We might have been right or we might have been wrong but like all major constitutional cases, the battlefield is consequences, not method. That is the real lesson of the disqualification case and all the "great" cases cited by the authors as well as, ironically, their own empty nods to and defenses of originalism in their new article.