11/18/2018

Craig Green: Deconstructing the Administrative State
Michael Ramsey

Craig Green (Temple University - James E. Beasley School of Law) has posted Deconstructing the Administrative State: Constitutional Debates over Chevron and Political Transformation in American Law on SSRN.  Here is the abstract: 

In 2018, Justice Kennedy wrote that the Supreme Court should “reconsider the premises” of Chevron v. NRDC based on “separation-of-powers principles.” In 2015, Justice Thomas was the first judge to argue in an opinion that Chevron is unconstitutional, and Justices Gorsuch and Kavanaugh are the only judicial nominees whose anti-Chevron critiques were featured elements of their candidacy. Petitions for certiorari have challenged Chevron’s constitutionality, echoing litigants in other federal courts, and academics have joined both sides of the debate. This Article responds to modern disputes over Chevron with a new history of how the constitutional crisis developed, a rebuttal of modern critiques, and a description of their potentially destructive effect on administrative governance and constitutional law. The Article describes a shift from Reagan-era support for Chevron to “post-Scalian” attacks. It concludes by considering anti-Chevron constitutional critiques alongside other Trumpist efforts to “deconstruct the administrative state.” To overrule Chevron would be the most radical decision about constitutional structure in eighty years, unsettling hundreds of judicial decisions, thousands of statutes, and countless agency decisions. This Article contributes to existing literature with novel historical research, and detailed engagement with anti-Chevron critiques that have become newly sophisticated and politically powerful.

11/17/2018

Eric Segall: Is Originalism a Theory?
Michael Ramsey

At Dorf on Law, Eric Segall: Is Originalism a Theory? Here is a key part of the argument: 

As I've been giving talks at various law schools discussing my new book "Originalism as Faith," one common reaction is great surprise that Originalism today refers to many different theories of constitutional interpretation that have very little in common with each other. When judges and law professors self-identify as "Originalists," there is no longer any serious metric or common definition to understand how they would approach hard constitutional cases.  Professor Michael Paulsen, a noted national scholar and Originalist, believes that originalism must be exercised with strong deference to the decisions of non-judicial political actors. He has said the following:

Where vague or general language admits a range of meaning, actions of representative government falling within that range cannot be said to be unconstitutional. Ambiguity does not supply a justification for courts picking any answer they prefer. Just the reverse: The less clearly the Constitution addresses any issue, the less the justification for judicial invalidation of what elected branches have done. The more unspecific a text, the more room it leaves for democratic choice. This is a feature, not a failure, of Originalism.

Other prominent Originalists who believe that judicial deference and modesty are essential components of the theory include Professors Michael McConnell, Rick Duncan, and Steve Smith. For example, Professor Duncan, objecting strongly to Roe and Obergefell v. Hodges, has said that "of course, some results that liberal elites love, such as the Court created right to abortion-on-demand and the judicial re-definition of marriage to include same-sex couples, are based upon non-originalist reasoning. Originalism could never have reached these results." No doubt many originalists agree with Duncan. Yet, other noted Originalists, such as Randy Barnett, Ilya Somin, and Steve Calabresi, have made originalist arguments for one or both of those cases. That is a broad tent given the importance and controversial nature of both Roe and Obergefell.

More importantly, Originalists like Randy Barnett, Ilya Somin, Ilya Shapiro, Jack Balkin, and Evan Bernick all reject substantial deference when it comes to originalist approaches to constitutional interpretation.  . . .

And from the conclusion:

Every time I raise this issue with Originalists, they respond that they do share something very important in common. They say most Originalists agree with [Lawrence] Solum that the original public meaning of the Constitution's text is fixed at the time of enactment and that meaning ought to constrain judges. Leaving aside that some prominent Originalists such as Professor [Steven D.] Smith advocate for a more intent-style as opposed to public-meaning approach to originalism, the reality is that just repeating those two principles (fixation and constraint) without more tells us little about how originalists would actually resolve hard constitutional cases. As noted above, some Originalists favor aggressive judicial review, some deferential review; some believe we are bound by what people living in 1787 or 1868 thought about specific questions, while others think we can disregard those expectations if they are based on mistaken facts (which in the case of sex discrimination I would argue are really changes in values). And I haven't even mentioned the many different approaches to integrating non-originalist precedent into a serious and workable theory of originalism, which is an issue that divides many Originalists.

I am far from the first scholar to point out how many disparate theories of originalism are embraced by self-identifying Originalists. Professors Tom Colby and Peter Smith have raised this issue in a series of articles, concluding that originalism today is a "smorgasbord of distinct constitutional theories that share little in common except a misleading reliance on a single label." 

Ilya Somin responds at Volokh Conspiracy: Is Originalism a Theory? Is Living Constitutionalism?  He argues:

Segall is right that originalists disagree amongst themselves on many issues. ...

At the same time, however, Segall is wrong to deny there are important areas of agreement among different types of originalists. As he himself notes, his originalist critics "say most Originalists agree with [Larry] Solum that the original public meaning of the Constitution's text is fixed at the time of enactment and that meaning ought to constrain judges." Segall complains that this doesn't provide sufficient indication of how originalists would resolve "hard cases." But even if a methodology does not by itself settle all disputes about hard cases, it is still significant, because it provides a road map for how to go about resolving these issues. In truth, no constitutional theory can resolve cases by itself. Such resolution also requires understanding of relevant factual evidence, institutional constraints, and perhaps other factors, as well. For example, in my view, originalist methodology justifies striking down sex-discriminatory laws that most would have considered constitutional in 1868, because we now have better factual evidence on the capabilities of women. Much (though not all) of the disagreement among originalists turns on these kinds of issues.

As originalist legal thought has developed, internal disagreements among originalists have clearly grown. But that does not mean there is no longer any significant common ground among them. To use an admittedly imperfect analogy: over time, many internal disagreements have arisen between different types of Christians. They disagree amongst themselves on numerous theological questions, and also on practical moral and political issues, such as abortion and the death penalty. But there are still significant commonalities among Christians that separate them from adherents of other religions (and from atheists and agnostics). For example, Christians overwhelmingly agree on the crucial importance of Jesus Christ (even while differing on its exact nature), and on the idea that the Old and New Testaments contain some sort of divinely inspired moral guidance. Similarly, originalists agree on the importance of an unchanging original meaning of the Constitution, even as they differ greatly on exactly what that meaning is, and how courts (and others) should apply it.

Moreover, there is more agreement about particular cases among originalists than Segall lets on. For example, there is widespread agreement among originalists that the original meaning sets tighter limits on the scope of federal power relative to the states than is currently the case under post-New Deal Supreme precedent, that the Constitution provides substantially greater protection for property rights than currently exists, and that the Second Amendment includes a relatively robust individual right to bear arms.

And on living constitutionalism:

If disagreement on various theoretical issues and case outcomes does disqualify originalism from being a theory, the same applies to living constitutionalism. Like originalists, living constitutionalists also disagree among themselves on basic theoretical issues, on the extent to which courts should defer to the other branches of government, and on case outcomes. For example, living-constitutionalist opinion on judicial deference ranges from those who would do away with binding judicial review almost entirely (e.g. - Mark Tushnet and Larry Kramer) to those who advocate more robust judicial scrutiny of many types of legislation than exists today (e.g. - the late Ronald Dworkin). On basic theoretical premises, living constitutionalists disagree even more than originalists do. For example, there are huge differences between John Hart Ely's "representation-reinforcement" theory, David Strauss' "common law constitutionalism," Ronald Dworkin's moral approach to constitutional interpretation, and Bruce Ackerman's theory of "constitutional moments."

11/16/2018

Old English Law Indicates that "Six Months" is the Maximum Necessary and Proper Constitutional Limit on Tenure of Acting Cabinet Secretaries
Andrew Hyman

My co-bloggers Michael Ramsey and Michael Rappaport both say that the following act violated the Constitution's original meaning.  On February 13, 1795 Congress passed this law titled, "An Act to Amend the Act, entitled 'An Act Making Alterations in the Treasury and War Departments'" (emphasis added):

[I]n case of vacancy in the office of secretary of state, secretary of the treasury, or of the secretary of the department of war, or of any officer of either of the said departments, whose appointment is not in the head thereof, whereby they cannot perform the duties of their said respective offices, it shall be lawful for the president of the United States, in case he shall think it necessary, to authorize any person or persons, at his discretion, to perform the duties of the said respective offices, until a successor be appointed, or such vacancy be filled: Provided, That no one vacancy shall be supplied, in manner aforesaid, for a longer term than six months.

For reasons already explained, this statute seems in my view entirely consistent with the original meaning of the Constitution, as a necessary and proper effectuation of the executive power; the executive power is limited not just by the Appointments Clause, but also by the Take Care Clause which seems to be one of the clauses that provides for appointments.  Here is the Take Care Clause, with the Commission Clause added for context: "he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States." 

The 1795 statute that I quoted above places a "six month" limit on acting cabinet secretaries, and I want to point out now that this was a longstanding limit under old English law.  Here is what the legal lexicographer Giles Jacob wrote in 1762 (emphasis added):

All officers civil and military are to take the oaths, and receive the sacrament, etc., upon pain of disability and other penalties. Stat. 25 Car. 2. 13 W. 3.  And no such office shall be void on the death of the King, but shall continue six months; unless superseded, or made void by the next successor.  1 Ann. c. 8....[A]ll persons who shall hereafter be admitted into any office, shall take the oaths, and within six months, or actually be liable to all penalties and disabilities, by Stat. 9 Geo. 2, c. 26 and 16 Geo. 2. c. 30.

The first part about “successors” explains why John Jay could serve for six months in an acting capacity after Congress established his department under the Constitution, but could not have served as Acting Secretary of State until his death in 1829.  As a whole, this blockquote explains why Congress in 1795 would have thought a six-month grace period was a necessary and proper limit on acting cabinet secretaries.  My main point is that the “six month” duration was not plucked from thin air, but rather was part of an old English principle, reasonably adapted to our republican form of government that Americans substituted in place of monarchy.  If, as Mike Ramsey argues, the Constitution by "mistake" set zero months instead of six months as the limit on acting cabinet secretaries, except for holdovers from the Articles of Confederation who could constitutionally continue serving forever, then it seems likely that people in the eighteenth century would have proposed a constitutional amendment once they realized the purported mistake.

Kevin Tobia: Testing Original Public Meaning
Michael Ramsey

Kevin P. Tobia (Yale University; ETH Zurich) has posted Testing Original Public Meaning on SSRN.  Here is the abstract: 

Various interpretive theories recommend using dictionaries or corpus linguistics to provide evidence about the “original public meaning” of legal texts. Such an interpretive inquiry is typically understood as an empirical one, aiming to discover a fact about public meaning: How did people actually understand the text at the time it became law? When dictionaries or corpora are used for this project, they are empirical tools, which might be reliable or unreliable instruments. However, the central question about these tools’ reliability remains unanswered: Do dictionaries and corpus linguistics reliably reflect original public meaning?

This paper develops a novel method to assess this question. It begins by examining the public meaning of modern terms. It compares people’s judgments about meaning to the verdicts that modern dictionaries and corpus linguistics deliver about (modern) public meaning. Eight experimental studies (total N = 1,327) reveal systematic divergences among the verdicts delivered by ordinary concept use, dictionary use, and corpus linguistics use. For example, the way in which people today apply the concept of a vehicle is systematically different from the way in which people apply the modern dictionary definition of a “vehicle” or the modern corpus linguistics data concerning vehicles. Strikingly similar results arise across levels of legal expertise; participants included 999 ordinary people, 230 “elite-university” law students (e.g. at Harvard and Yale), and 98 United States judges. These findings provide evidence about the reliability of dictionaries and corpus linguistics in estimating modern public meaning. I argue that these studies also provide evidence about these tools’ reliability in estimating original public meaning, in historical times.

The paper develops both the positive and critical implications of these experimental findings. Positively, the results reveal systematic patterns of the use of dictionaries and corpora. Corpus linguistics tends to generate prototypical uses, while dictionaries tend to generate more extensive uses. This discovery grounds normative principles for improving the use of both tools in legal interpretation. Critically, the results support five argumentative fallacies that arise in legal-interpretive arguments that rely on corpus linguistics or dictionaries. More broadly, the results suggest that two central methods of determining original public meaning are surprisingly unreliable. This shifts the argumentative burden to public meaning originalism and other theories that rely upon these tools; those theories must provide a non-arbitrary account of these tools’ use and a demonstration that such methods are, in fact, reliable.

11/15/2018

Counterpoint: The Whitaker Appointment Is Unconstitutional under the Constitution's Original Meaning
Michael Ramsey

In the matter of the appointment of Matthew Whitaker as Acting Attorney General, my co-bloggers are divided: Andrew Hyman argues here that the appointment is constitutional under the Constitution's original meaning, while Mike Rappaport argues here (relying on his earlier law review article) that it is not, because Mr. Whitaker does not hold a Senate-confirmed office.  Also, yesterday the Department of Justice released a legal opinion (per Assistant Attorney General Steven Engel) in support of the constitutionality of the appointment, although (as I'll discuss below) its analysis of the original meaning is very thin.

I mentioned some initial concerns about the appointment last week, and on further reflection I side with those who find that the Constitution's original meaning does not allow the appointment.  But Andrew Hyman raises some important arguments that need a response.

The basic textual argument against the appointment's constitutionality is simple.  The appointments clause, Article II, Section 2, states that the President "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other Public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not otherwise herein provided for."  This provision is subject to two textual exceptions: (1) Congress may "vest the Appointment of such Inferior Officers, as they think proper" in the President alone, the courts of law, or the heads of departments, and (2) the President may make appointments to vacancies that happen during the recess of the Senate.  The most plausible reading (indeed, I would say the only plausible reading) of this text and structure is that it establishes a general rule of Senate advice and consent for appointments subject to only two exceptions, for recess appointments and for inferior officers.

Since the Whitaker appointment is not a recess appointment, it is constitutional only if (a) he is an inferior officer or (b) the "appointment" is not really an appointment.  As to (b), that argument might work for persons who hold another federal office and merely have their duties expanded temporarily.  But that is not the case for Mr. Whitaker, who does not concurrently hold another office.  As to (a), the core definition of an inferior officer would seem obviously to be someone subject to a superior other than the President.  Whitaker does not meet that definition.  Again, it's possible that a person already holding a inferior office could be delegated temporarily  the duties of a superior office and yet remain an "inferior Officer" so long as that person still had a "superior" -- but that is not Whitaker's situation.

The Department of Justice opinion argues that an acting officer might be an inferior officer because of the short duration of the appointment.  But I agree with Mike Rappaport: "It is not the length of time, but the duties that are performed that are relevant."  Specifically, it is whether the duties are performed with supervision by someone other than the President.  The text does not suggest anything about duration (and in any event, an acting appointment could last fairly long).  

I'm not aware of any pre-ratification discussion or other evidence that would undermine this view.  There is some contrary post-ratification evidence but I find it insufficient given the clarity of the text.  First, Congress by statute in 1792 gave the President power to make acting appointments without limitation.  The Whitaker appointment would have been legal under that statute.  But it does not appear that this statute produced any reflection or debate, and no one explained how it could be constitutional as applied to superior officers who lack Senate confirmation (plainly it is constitutional as applied to inferior officers and [as discussed below] superior officers with prior Senate confirmation).  Second, under that statute and its successors, Presidents made some acting appointments that appear not to comply with the Constitution's text.

According to the Engel opinion, the first of these appointments was by President Jefferson in 1809, designating John Smith to serve as Acting Secretary of War.  (In a prior post, I suggested that the first such appointment might have been in 1829, but I mistakenly assumed that the office of Chief Clerk of the War Department, which Smith held, was a Senate-confirmed position; it was not).  However, it does not appear that the practice of appointing non-confirmed persons to superior offices became at all common until the Jackson administration in 1829.  Again, the single unexplained appointment in the Jefferson administration does not seem sufficient to overcome the clear text; the practice in the Jackson administration is not good evidence of original meaning, both because it is remote from the drafting and ratification of the Constitution and because President Jackson was not overly cautious about expanding executive powers.

The Department of Justice opinion does not claim that the historical practice indicates an original meaning in support of the appointment; rather, it principally relies on subsequent historical practice as creating the meaning in itself.  It says only that calling someone with an acting appointment an inferior officer is a possible reading of the text.  (It also relies on the 1898 Supreme Court case United States v. Eaton, but Eaton also does not have much originalist analysis).

Andrew Hyman makes three main arguments, not reflected in the Department of Justice opinion, in support of the Whitaker appointment: (1) that it is supported by early practice, specifically John Jay's service as acting Secretary of Foreign Affairs; (2) that it is constitutional under the take care clause; and (3) that its constitutionality is implied by the recess appointments clause.

As to the first, he points out that John Jay served as acting Secretary of Foreign Affairs under Washington prior to the appointment of the first Secretary of State.  There is some weight to this, but on the other hand it occurred during a time of transition and in the face of practical necessity.  Foreign affairs needed continuing management and there were no other federal officers at the time; Jay was not so much appointed as carried over from the Articles of Confederation, under which he held the office.  Jay himself said he was acting "not officially."

On the second point, he argues that the President's duty to take care that the laws are faithfully executed implies power in the President to take necessary actions to assure faithful execution, including making short-term acting appointments.  He also points to the language in the appointments clause limiting the Senate role to approving officers "whose Appointments are not otherwise herein provided for" and argues that acting appointments are provided for (implicitly) in the take care clause. I think any such power would come from the executive vesting clause of Article II, Section 1, not the take care clause, which is only a duty to take care to the extent of the powers elsewhere provided.  But that's a quibble.  The more important point is that the President's executive power is qualified by the Constitution's express assignments of executive power to other branches.  Thus the President cannot declare war, even if war is needed to assure the laws are faithfully executed, because war power is expressly assigned elsewhere.  Similarly, the President cannot make appointments (other than in accordance with the appointments clause) even if appointments are needed to assure the laws are faithfully executed.  The "otherwise provided for" language does not help because, first, acting appointments are not "provided for" in the take care clause, and second the "otherwise provided for" language is more naturally read to refer to the inferiors officers clause and the recess appointments clause, which immediately follow and which provide for appointments without Senate consent.

The third point is the most interesting.  It is true that the recess appointments clause allows the President alone to appoint any person, without limitation, as a superior officer without Senate approval.  Thus if if the Attorney General vacancy had "happen[ed] during the recess of the Senate" the Whitaker appointment would be obviously constitutional.  This substantially undercuts the argument of people such as George Conway and Neal Katyal that the Whitaker appointment somehow betrays fundamental constitutional principles.  In fact, the appointment is only constitutionally problematic because it happened not to be a recess appointment.  Yet, Andrew Hyman reasonably asks, why would the Constitution draw such a sharp line between a recess appointment and a temporary appointment?  Both serve the same purpose of allowing the executive branch to function at full strength until the Senate's consent can be obtained.

My answer illustrates an important point about the Constitution: it's drafters were human, and thus fallible.  I think it was likely a mistake.  The drafters understood that when the Senate was in recess, there needed to be a way to fill vacancies.  They thought that when the Senate was not in recess, filling vacancies would not be a problem, because if the vacancy created serious difficulties the Senate would act quickly.  But they did not appreciate that vacancies or incapacities can arise suddenly, that the President may need time to identify and vet a suitable long-term candidate, and that the Senate may need time to deliberate.  Vacancies that arise when the Senate is sitting may still be problematic.  That doesn't mean the Constitution has to provide for them. 

The 1792 Act, and subsequent vacancy acts, are thus something of a work-around.  They work to an extent, as Mike Rappaport explains.  Congress can provide that the duties of a Senate-confirmed officer include assuming the duties of another office, on an acting basis, if the President directs.  The acting "appointment" is not really an appointment, but a reallocation of duties.  The person is acting as a superior officer in carrying out these duties, but that is constitutionally unobjectionable because that person has already been approved by the Senate.  Although the framers may not have envisioned this work-around, the text does not prevent it.  And placing the power over acting appointments with Congress allows Congress to limit them.

The Constitution's text does, however, prevent the President from allocating "acting" duties of superior officers to persons who have not been approved by the Senate for any office.  In assuming such duties, the person becomes a superior officer (that is, acts without supervision by anyone other than the President).  And the text says that all superior officers, other than those appointed during a recess, must be approved by the Senate.

UPDATE:  John Yoo has a somewhat similar analysis, reaching a similar conclusion, at The Atlantic.  (Thanks to Michael Perry for the pointer).

11/14/2018

Acting Appointments and the Constitution’s Original Meaning
Mike Rappaport

There has been much controversy over the naming of Matthew Whitaker, the Chief of Staff of former Attorney General Sessions, to be Acting Attorney General. Whitaker was not serving in a position that required the advice and consent of the Senate. So the question is whether Whitaker can be named as Acting Attorney General when the Attorney General can only be appointed with the advice and consent of the Senate. In my view, the Constitution’s original meaning does not allow this appointment, but nonoriginalist positions might very well permit it.

Many years ago, I published an article on the original meaning of the Recess Appointments Clause. While Justice Scalia relied on the theory I developed in the Noel Canning case, unfortunately his opinion was a dissent for four justices. The majority accepted Justice Breyer’s view, which was clearly contrary to the original meaning. In that article, I also developed an argument what the Constitution’s original meaning says about acting appointments, which I present below.

The Attorney General is the Head of the Department of Justice. As such, the Attorney General is not an inferior officer under the Appointments Clause and therefore can only be appointed with the advice and consent of the Senate. How then can the President alone name a person to be Acting Attorney General—that is, to serve temporarily as Attorney General? To understand how this can happen requires a little background. When the President makes an “acting appointment,” it is important to understand that there is no appointment made under the Constitution.

For example, suppose that Congress provides that either the Deputy Attorney General or the Solicitor General, both of whom are appointed with the advice and consent of the Senate, shall be eligible to serve as Acting Attorney General when, in the absence of the Attorney General, the President designates one of them to be Acting Attorney General. In this situation, no appointment actually occurs. Instead, the correct way to conceptualize this is that both the Deputy Attorney General and the Solicitor General have, as one power of their office, the responsibility to serve as Acting Attorney General when the President so designates them. Thus, when the Senate consented to their appointment, it already consented to them serving as Acting Attorney General.

This process cannot occur constitutionally, however, if the person designated to serve as Acting Attorney General was not appointed with the advice and consent of the Senate. Since serving in the position of Attorney General requires an advice and consent appointment, a person who has been appointed without the Senate's advice and consent cannot serve in that position, even temporarily.

The best argument on the other side is that temporarily serving as acting Attorney General is not the same as serving as Attorney General. Therefore, a temporary appointment does not require advice and consent. But this argument is weak. It is hard to know how short an appointment needs to be to be considered temporary. Moreover, being the Head of a Department is an important job, even if one only serves there for a brief period. It is not the length of time, but the duties that are performed that are relevant.

It is true that an early statute, passed in 1792, appeared to allow officers who had not secured the advice and consent of the Senate to serve as Heads of Departments. But that view is problematic. Interestingly, Senator Rufus King, who was a Philadelphia Framer, recognized the problem in 1813. David Currie writes that King argued that allowing officers appointed without the Senate’s consent to act as the Head of the Department “would permit a President to evade the requirement of Senate approval.”

In my next post, I will explain why the analysis differs for nonoriginalists.

Christopher Schmidt: Originalism and Congressional Power to Enforce the Fourteenth Amendment
Michael Ramsey

Christopher W. Schmidt (Chicago-Kent College of Law; American Bar Foundation) has posted Originalism and Congressional Power to Enforce the Fourteenth Amendment (74 Washington and Lee Law Review Online 33 (2018)) on SSRN.  Here is the abstract:

In this Essay I argue that originalism conflicts with the Supreme Court’s current jurisprudence defining the scope of Congress’ power to enforce the Fourteenth Amendment. Under the standard established in Boerne v. Flores, the Court limits congressional power under Section 5 of the Fourteenth Amendment to statutory remedies premised on judicially defined interpretations of Fourteenth Amendment rights. A commitment to originalism as a method of judicial constitutional interpretation challenges the premise of judicial interpretive supremacy in Section 5 jurisprudence in two ways. First, as a matter of history, an originalist reading of Section 5 provides support for broad judicial deference to congressional constitutional interpretive authority. Second, even if one accepts originalism as the best way for courts to interpret the Constitution, this assumption does not necessarily apply to nonjudicial actors when they are fulfilling their own constitutional responsibilities—such as members of Congress acting to enforce the provisions of the Fourteenth Amendment. Placing judicial originalism into the foreground of our discussion of Section 5 jurisprudence thus offers additional support for a broader reading of the congressional enforcement power than exists today under Boerne.

This is a response to William D. Araiza, Arming the Second Amendment—and Enforcing the Fourteenth, 74 Wash. & Lee L. Rev. 1801 (2017).

11/13/2018

More on Birthright Citizenship: Nonoriginalism Allows the Denial of Birthright Citizenship but Originalism Does Not
Mike Rappaport
 

The debate on birthright citizenship continues. But I find it frustrating in two ways. First, nonoriginalists continue to ignore that there is a very reasonable case to be made that nonoriginalism denies birthright citizenship. Second, some critics of birthright citizenship, who purport to write from an originalist perspective, continue to argue that the original meaning does not protect birthright citizenship.

Let’s start with the nonoriginalists. Sometimes I think that nonoriginalism actually is what it is caricatured to be: a method of reaching decisions according to the moral values of the interpreter. Some nonoriginalists are simply asserting that birthright citizenship is the meaning of the Constitution and that anyone who claims otherwise is simply ignorant and morally depraved. But such vehemence does not prove that these nonoriginalists are right or consistent.

Nonoriginalism does not do what many nonoriginalists think it does. Nonoriginalism is a methodology that often leads to significant uncertainty. While that means that you can often argue for the result that you like, it also means that you do not have a strong argument against people who interpret the Constitution to mean something you don’t like. The uncertainty of nonoriginalism means that lots of results become permissible. Simply ignoring this aspect of nonoriginalism does not make it go away. If you are a nonoriginalist, you don’t have a strong principled argument against people who interpret the Constitution to deny birthright citizenship.

Now on to those marching under the banner of originalism. Andrew McCarthy, following Lino Graglia, claims that the Fourteenth Amendment Citizenship Clause does not confer birthright citizenship. Instead, the Constitution only confers citizenship on the children of American citizens (and some legal resident aliens). But this argument is not the best reading of the evidence and turns on some problematic originalist methodology.

Graglia, upon whom McCarthy relies, argues that the meaning of “subject to the jurisdiction” of the United States in the Fourteenth Amendment gets its meaning from the Civil Rights Act, which was passed two years before Congress passed the Amendment. Graglia notes that the Civil Rights Act had different language, which provided that “[A]ll persons born in the United States, and not subject to any foreign power,” were citizens. I agree there is a strong argument that this language of the Civil Rights Act does not confer birthright citizenship, but that does not support Graglia or McCarthy’s argument. The Amendment changed the Civil Rights Act’s language. The natural inference is that it did so for a reason. One cannot simply claim, as Graglia does, that it does not appear that this change in the language changed the meaning of the provision. If the better reading of the Fourteenth Amendment’s actual language is to confer birthright citizenship, then that is what one goes with.

I don’t mean to suggest that that the history here is a slam dunk. I myself have argued that there is some uncertainty as to the full meaning of “subject to the jurisdiction” of the United States. But the argument for birthright citizenship is still much stronger than the alternative.

In the end, advocates and opponents of birthright citizenship are stuck in a dilemma. The advocates tend to be nonoriginalists, but that methodology does not provide them with a strong case against those who deny birthright citizenship. The opponents tend to be originalists, but originalism is more determinate than nonoriginalism and provides strong support for birthright citizenship.

Why the Whitaker Appointment Complies With the Original Meaning of the Constitution
Andrew Hyman

A few days ago, Jeff Sessions resigned as Attorney General, and Matthew Whitaker was appointed Acting Attorney General pending the nomination and confirmation of a permanent replacement for Sessions.  Several lawyers have been claiming the Whitaker appointment violates the Constitution, including George Conway and Neal Katyal writing in the New York Times.  Others disagree with Katyal and Conway, including law professor Stephen Vladeck who argued in the New York Times three days ago that "Whitaker May Be a Bad Choice, but He’s a Legal One."  I don't know if it's a bad one, but I do believe it conforms with the original meaning of the Constitution.

The first thing everyone has to realize is that the Whitaker appointment is 100% compliant with a federal statute called the Federal Vacancies Reform Act of 1998 (FVRA) which authorizes temporary appointments of people who have never been nominated or confirmed by the Senate.  That statute is supported not just by the powers of Congress, but also by the powers of the Senate (e.g. its rulemaking power).  Statutes like the FVRA, authorizing the appointment of acting department heads without Senate confirmation, have been on the books since the 1790s, and we can look even earlier for precedents.

For example, Congress created the office of Secretary of Foreign Affairs on July 27, 1789 and John Jay acted in that position even though he had never been nominated or confirmed by the Senate to anything.  President Washington explicitly referred to Jay (e.g. in a September 5, 1789 letter to Henry Knox) as the “acting Secretary of Foreign Affairs.”   Jay wrote on October 7, 1789: “Circumstances hav[e] rendered it necessary that I should continue, though not officially, to superintend the Department of Foreign Affairs.”  Washington wrote on October 13, 1789 that Jay “has been so obliging as to continue his good offices…."  Congress renamed the department "State" while Jay was still its acting head.  That leaves the question of why Washington and Jay thought it was constitutional, and they didn't explicitly say, as far as I know.  But there is a very reasonable answer.

Ever since the 1840s (if not earlier), the executive branch has been arguing that the presidential power of appointment results from his constitutional duty to take care that the laws are faithfully executed.   You cannot faithfully execute the law without subordinates, and appointing subordinates is a core part of executive power.

The Constitution says: "The executive Power shall be vested in a President . . ." and "he shall take Care that the Laws be faithfully executed."  And the Constitution further says that Congress has power to "make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof" (my emphasis).

The main argument against the Whitaker appointment is that it does not comply with Article II, Section 2 of the Constitution (my emphasis):
 
The President....shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments. The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.
 
The last sentence is about recess appointments.  There would be no controversy about the Whitaker appointment if it happened during the recess of the Senate, but the Senate was holding brief "pro forma" sessions instead of deciding to recess, so let us assume the Senate was not in recess.  But observe: the Recess Appointments Clause could have easily been written so as to require that the President only choose an acting Attorney General from people who were already holding some Senate-confirmed office, but that Clause instead was written so as to allow the President to choose anyone.

And how about the sentence preceding the Recess Appointments Clause?  Doesn't the Whitaker Appointment (and the FVRA) violate that?  Actually, no.  One could argue in Whitaker's favor that he is an "inferior officer" because he is only serving for a limited time, but that argument is not very compelling because he has a LOT of power and no boss other than the President; and anyway, saying that John Jay was an "inferior officer" would not have boosted Jay's legitimacy at all, because Congress had not vested any power for Jay's appointment in the President.

The real reason why the Whitaker and Jay appointments (and countless appointments in between) comply with the original meaning of Article II, Section 2 is very probably because they were "herein otherwise provided for" in the sense that they were provided for by this language that I already quoted above: "The executive Power shall be vested in a President....he shall take Care that the Laws be faithfully executed" (and we also have the power of Congress to "make all Laws which shall be necessary and proper for carrying into Execution" that presidential power).  As long as the Whitaker appointment is limited in time, and the President intends to go through the nomination and confirmation process, the appointment is necessary and proper.

Katyal and Conway argue that it would have been okay if one of the hundreds of Senate-confirmed officials had been transferred ("cut and pasted") to Acting Attorney General, even though the Senate never checked their qualifications to run the Justice Department.  Whitaker was the Chief of Staff for Sessions without having been confirmed by the Senate, and had been confirmed by the Senate as a U.S. Attorney back in 2004.  Trump could have just as constitutionally appointed George Conway as Acting Attorney General, even though Conway has never been confirmed by the Senate for anything.
 
(Cross-posted at Redstate).

11/12/2018

Birthright Citizenship: Originalism and Nonoriginalism
Mike Rappaport

President Trump has put the Fourteenth Amendment’s Citizenship Clause in the news. The question is whether the language in the Amendment—“All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States”—provides citizenship to the children of illegal or undocumented aliens who are born in the United States.

I have a two-part position on this issue. I believe that the Constitution’s original meaning makes the children of illegal aliens, who are born in the United States, citizens. Since I am an originalist, I would follow this interpretation. But I also believe that a reasonable case can be made—based on nonoriginalism—for not interpreting the Amendment to cover the children of illegal or undocumented aliens.

A couple of years ago Mike Ramsey and I had a Constitution Day debate on this issue. It was an unusual debate. Mike took the position that the original meaning conferred citizenship on the children of illegal aliens. I agreed with him. Here is the essence of Mike’s position as to what “subject to the jurisdiction thereof” meant:

It was a bedrock principle of nineteenth-century international law that sovereigns had complete jurisdiction (that is, authority to prescribe law) over all persons and things within their sovereign territory. This principle was subject to several exceptions, notably (1) territorial jurisdiction did not extend to ambassadors and other diplomatic personnel, nor to foreign rulers and their property, all of whom had immunity from the laws of the territorial sovereign; (2) territorial jurisdiction could be limited by treaty, as the U.S. did to some extent in treaties with Indian tribes; and (3) territorial jurisdiction did not exist as a practical matter over hostile armies and in areas under hostile occupation. U.S.-born children of illegal immigrants do not fit into any of the exceptions to territorial jurisdiction. Nor is there any doubt that such children are governed by U.S. law at the moment of their birth. Thus they are "subject to the jurisdiction" of the United States at birth. As a result, the text's original meaning grants them U.S. citizenship at birth.

While agreeing that this was the original meaning, I argued that a nonoriginalist might reasonably disagree. Here let me offer three nonoriginalist arguments that I made for this interpretation—the type of arguments that are typically made by nonoriginalists.

First, there are strong nonoriginalist reasons for not following the original meaning as to birthright citizenship for the children of illegal immigrants. At the time of the Fourteenth Amendment, there was not an illegal immigrant issue, since there were essentially no federal laws restricting immigration. Thus, the Framers of the Amendment were unlikely to have had that issue in mind. Nonoriginalists typically argue that the decisions made by the Framers are more relevant when they addressed the actual issue and less relevant when they failed to anticipate a matter.

Second, there are strong normative arguments against birthright citizenship for illegal aliens (and for many others).

Normative arguments are, of course, one of the mainstays of nonoriginalist interpretation. One common argument is that conferring citizenship on the children of illegal aliens obviously provides an incentive for more illegal aliens. A less common argument against conferring citizenship of the children of noncitizen legal residents is that it makes it more difficult to have guest worker programs, since those workers may have children while they are in the United States.

But the strongest normative argument against conferring citizenship on the children of illegal aliens derives from the fact that, in the modern world, American citizenship is a tremendous privilege. Given the benefits that U.S. citizenship conveys, the normative question is how we should allocate this privilege. It seems obvious that citizenship should not be granted simply based on the accident of being born in the United States. There are a variety of ways one might want to allocate citizenship (and immigration)—based on quotas from countries, based on skills contributed to the United States, based on years already lived in the United States—but none of those are based on the simple accident of being born in the US.

A third type of nonoriginalist argument is to look to the existence of laws throughout the world, especially the developed countries in Europe.

A strong trend as to these laws suggests that normatively the United States ought to follow it. Significantly, the only two developed countries in the world that have birthright citizenship are Canada and the United States. None of the European countries have it and several developed nations have repealed it in the last generation.

Thus, there is a strong nonoriginalist argument for reading the Fourteenth Amendment not to confer birthright citizenship, at least to the children of illegal or undocumented aliens.

Nonoriginalists might not agree with this argument, but it is hard for them to argue that the argument is illegitimate since they accept this type of argument. In the end, one can’t have it both ways. If one favors the freedom that nonoriginalist interpretation gives to an interpreter, then one must live with the way that those who disagree with you would use that interpretive freedom.

Anthony Bellia & Bradford Clark: Why Federal Courts Apply the Law of Nations Even Though It Is Not the Supreme Law of the Land
Michael Ramsey

Anthony J. Bellia Jr. (Notre Dame Law School) & Bradford R. Clark (George Washington University Law School) have posted Why Federal Courts Apply the Law of Nations Even Though It Is Not the Supreme Law of the Land (106 Georgetown Law Journal 1915 (2018)) on SSRN.  Here is the abstract:

We are grateful to the judges and scholars who participated in this Symposium examining our book, The Law of Nations and the United States Constitution. One of our goals in writing this book was to reinvigorate and advance the debate over the role of customary international law in U.S. courts. The papers in this Symposium advance this debate by deepening understandings of how the Constitution interacts with customary international law. Our goal in this Article is to address two questions raised by this Symposium that go to the heart of the status of the law of nations under the Constitution. The first question is whether the Constitution adopted the law of nations (or some subset of it) as the supreme law of the land. This fundamental question has profound implications for the proper role and status of customary international law in the U.S. federal system. The second question is whether the Constitution’s allocation of certain powers to the political branches of the federal government has any bearing on the power or obligation of federal courts to apply the law of nations. Resolution of this question is particularly important if one concludes, as we do, that the Constitution did not adopt the law of nations itself as supreme federal law.

Regarding the first question, Professors David Golove and Daniel Hulsebosch echo the modern position that the Constitution adopted the law of nations as supreme federal law and thus assigned primary responsibility to courts, rather than the political branches, to comply with the law of nations. Their evidence for this proposition, however, is unpersuasive. Although they present ample evidence that members of the founding generation understood the law of nations to form “part of the law of the land” or “part of the law of the United States,” they present no evidence that the founders understood the Constitution to adopt the law of nations as the “supreme Law of the Land,” enforceable by courts not only in preference to contrary state law, but also in preference to contrary executive action and possibly even acts of Congress. By design, the Supremacy Clause recognized only three sources of law as “the supreme Law of the Land” — the “Constitution,” “Laws made in Pursuance thereof,” and “Treaties.” Under the Constitution, each of these sources of law can be adopted only with the participation and assent of the Senate (designed to represent the states) or the states themselves. This veto was the price of supremacy exacted by the states during the drafting and ratification of the Constitution. Professors Golove and Hulsebosch acknowledge that the Supremacy Clause did not make the law of nations the supreme law of the land, and they identify no other constitutional provision giving it that status.

Regarding the second question, whereas Professors Golove and Hulsebosch overstate the status of the law of nations as supreme federal law, they undervalue the relationship between the law of nations and the Constitution’s allocation of powers. Specifically, they contend that the Constitution’s allocation of power to the political branches to recognize foreign nations was historically irrelevant to the obligation of U.S. courts to uphold the rights of foreign nations under the law of nations. In the twentieth century, the Supreme Court has expressly relied on recognition to uphold the sovereign rights of foreign nations. Such reliance is largely consistent with historical understandings and practice. Because early federal courts applied the law of nations as general law, they had little need in most cases to spell out the precise relationship between judicial adherence to the law of nations and the exclusive powers of the political branches over war, foreign relations, and recognition. But background understandings of the law of nations suggest that the Constitution’s exclusive allocation of these powers to the political branches required courts — in the absence of contrary instructions from the political branches — (1) to respect rights of recognized foreign nations under the law of nations and (2) to refrain from enforcing rights of the United States against other nations. Early Supreme Court opinions also suggest that the judiciary’s failure to uphold the rights of foreign nations under the law of nations, and the judiciary’s unilateral enforcement of U.S. rights against other countries, would usurp the exclusive constitutional powers of the political branches over these matters. In some early cases, when necessary to resolve the dispute at hand, the Court alluded to these points explicitly. The Court’s increased reliance on the Constitution’s allocation of foreign relations powers to justify these same practices in the modern era rests on a foundation established by early precedent in light of the Constitution’s original design.

This essay is principally a response to this article by Professors Golove and Hulsebosch, for the symposium on this book by Professors Bellia and Clark.

11/11/2018

Garrett West: Congressional Power over Office Creation
Michael Ramsey

Apologies for missing this one earlier, but it's suddenly very timely.

E. Garrett West (Independent; Yale Law School J.D. '18) has posted Congressional Power over Office Creation (128 Yale Law Journal 166 (2018)) on SSRN.  Here is the abstract: 

The Constitution leaves the creation of the institutions of government to ordinary political processes. While intricate constitutionalized procedures govern the election of Congress, the President, and the Vice-President, the Constitution anticipated but did not establish a host of other personnel and positions. Instead, it leaves the task of institution-building to Congress. This Note argues that text, structure, and history demonstrate that the Constitution gives Congress exclusive authority over office-creation. Textually, the Appointments Clause and the Necessary and Proper Clause together give Congress exclusive authority to “establish[] by Law” the government’s offices. Structurally, Congress has the democratic and technical capacity to structure the government. And Congress’s power to “constitute” governmental institutions mimics the original act of Constitution-making: just as “We the People” could “ordain and establish this Constitution,” the Appointments Clause allows Congress to “establish[] by Law...all other Officers of the United States.”

Congress’s exclusive office-creating power has important implications for the separation of powers. This Note discusses three such issues: First, I discuss the related problems of statutory qualifications clauses and for-cause removal provisions. Perhaps counter-intuitively, qualifications clauses should almost never raise constitutional problems, but for-cause removal provisions almost always will. I argue that the Constitution’s distinction between ex ante office-creation and ex post presidential control explains this distinction. Second, I discuss the constitutionality of temporary appointments that do not meet the strictures of the Recess Appointments Clause. Drawing on Justice Thomas’s concurrence in SW General, I show that, in some circumstances, the Federal Vacancies Reform Act of 1998 makes an unconstitutional “end-run around the Appointments Clause.” Third, I argue that this Note clarifies the employee-officer distinction in Appointments Clause jurisprudence. Together, these three doctrinal issues illustrate how Congress’s exclusive office-creating power ought to inform the analysis in separation-of-powers cases.

(Emphasis added).

RELATED: At Volokh Conspiracy, Will Baude has this post, which is pretty much in line with my thinking: Who Is Lawfully the Attorney General Right Now? Why first principles suggest that Matthew Whitaker's acting appointment is invalid, but precedent and practice might suggest the opposite.

COMMENT (by Andrew Hyman):  I’d just like to mention a few further resources.  The following Attorney General’s opinion says the president has appointment power not just under Art. 2 Sec. 2, but additionally has interim appointment power under the Take Care Clause:

https://books.google.com/books?id=lowFAAAAQAAJ&pg=PA1633

Here is a list of acting Secretaries of State:

https://history.state.gov/departmenthistory/people/principalofficers/secretary-ad-interim

And here is a list of acting Secretaries of War:

https://books.google.com/books?id=MQJLO96t2RIC&pg=PA171

FURTHER COMMENT (by Michael Ramsey):  I eyeballed the list of acting Secretaries of State.  It appears to me that only one of them (James Hamilton in 1829) had not been confirmed by the Senate to another office.  Early on, the acting Secretaries were usually heads of other departments.  Later, they were Chief Clerks, deputy Secretaries of State or similar titles.  But as far as I can tell no one objected to Hamilton's appointment.  I'm still not sure how this all cuts.

11/10/2018

Is the Federal Vacancies Reform Act Constitutional? (With Comments by Michael Ramsey)
Andrew Hyman

Following up on Mike Ramsey’s informative blog post questioning the constitutionality of the Attorney General, I’ll comment a little bit.  The ostensible power to enact the FVRA is supported not just by the powers of Congress but also by the rulemaking power of the Senate.  The Senate is effectively telling POTUS: “We’re really busy right now, but go ahead and appoint anyone you want for a limited time, just like we allowed George Washington to do, while we all go through the nomination process.”  This has been happening for centuries.  Congress imposed a six-month time limit on such appointments in 1795, three years after the original 1792 Vacancies Act.

Let’s assume that the Recess Appointments Clause is not directly applicable here, because of the brief “pro forma” sessions of the Senate.  Still, the Recess Appointments Clause is indirectly very relevant.  That clause could have easily required that a recess-appointed department head be a present or former Senate-confirmed officer (but did not), and that clause also could have easily been phrased as an exception to the preceding sentence of the Constitution (but was not).  So, respectively, I doubt that there is an unwritten constitutional requirement for particularized Senate confirmation for temporarily filling cabinet-level vacancies, and I likewise doubt that recess appointments without particularized Senate consent would have been flatly forbidden if the Recess Appointment Clause had been omitted.  Of course, the House and Senate can require particularized Senate confirmation every time vacancies are temporarily filled outside of a recess, but they have not done so.

As a practical matter, it would be shortsighted to judge the FVRA by who the current president is, though I’m not suggesting that many scholars are now doing that.  Striking down all or part of the FVRA could cause especially dramatic consequences at the beginning of a future presidency, when the need to fill vacancies is very great.  For all these reasons, I’m glad that the judicial power does not include voiding statutes for unclear constitutional reasons.

MICHAEL RAMSEY ADDS: My prior post only considered the matter from an originalist perspective. The argument from practice seems strongly to favor the President, based on federal statutes since 1792 giving the President power to name persons to acting offices without requiring prior Senate confirmation.  Those who accept Justice Frankfurter's "historical gloss" method of interpretation would seem hard pressed to dispute it, and that approach was endorsed by the Supreme Court majority in Noel Canning.  Thus it seems a bit incomplete, to say the least, that the Katyal/Conway New York Times op-ed, which flatly declares the Whitaker appointment "illegal," does not even mention the 1792 Act and subsequent practice.

I wonder how strong the practice is beyond the statutes themselves.  That is, to what extent have past Presidents conferred the "acting" duties of principal offices upon persons not confirmed by the Senate to any position?  I have not seen this discussed (Katyal and Conway don't even acknowledge that there might be some prior practice).  As a start, Andrew Hyman helpfully supplied this link (to the trial of Andrew Johnson), in which (for reasons I haven't fully figured out) a list of past acting designations of department heads was entered into the record.  Looking over these quickly, it looks like some of the nineteenth-century acting officers were people who had been confirmed by the Senate to other high positions, but others may well not have been.  Many are not recorded as having titles (as the people with high offices are), so they may just have been private citizens.  In any event, this seems like a good place to start looking.

FURTHER UPDATE (by Michael Ramsey):  I picked one of the appointments in the above document at random:

On the 19th of August 1829, President Jackson appointed William B. Lewis Acting Secretary of War during the absence of the Secretary of War.

From this site it looks to me that William B. Lewis did not hold any Senate-confirmed office in 1829:

William Berkeley Lewis (1784-1866) of Tennessee was Andrew Jackson's friend and political advisor. He served as quartermaster under Jackson during the Creek War and War of 1812, and was a member of the "Kitchen Cabinet” in the Jackson administration, holding considerable influence until Jackson's second term. In 1830 Jackson appointed Lewis as Second Auditor of the Treasury, a position he lost in the Polk administration.

(Wikipedia also does not not mention any federal offices held by Mr. Lewis in 1829).

11/09/2018

Is the Attorney General Unconstitutional?
Michael Ramsey

In the New York Times, Neal Katyal and George Conway argue that the President's appointment of Matthew Whitaker as Acting Attorney General is unconstitutional: the problem, they say, is that Whitaker, who was Attorney General Sessions' chief of staff, was never confirmed by the Senate; thus he's not eligible to fill a position that requires Senate confirmation.

At NBC News, Steve Vladeck argues persuasively that the appointment complies with the Federal Vacancies Reform Act, and adds:

There is also a constitutional objection [citing Katyal and Conway] to having someone who has not been confirmed by the Senate serve on even a temporary basis in such a senior position. But as Justice Antonin Scalia explained in 2014, “Congress can authorize ‘acting’ officers to perform the duties associated with a temporarily vacant office — and has done that, in one form or another, since 1792.” [quoting Scalia's separate opinion in NLRB v. Noel Canning].

That's right as far as it goes: Scalia cites the Act of May 8, 1792, Section 8, which provides: 

And be it further enacted, That in case of the death, absence from the seat of government, or sickness of the Secretary of State, Secretary of the Treasury, or of the Secretary of the War department, or of any officer of either of the said departments whose appointment is not in the head thereof, whereby they cannot perform the duties of their said respective offices, it shall be lawful for the President of the United States, in case he shall think it necessary, to authorize any person or persons at his discretion to perform the duties of the said respective offices until a successor be appointed, or until such absence or inability by sickness shall cease.

But maybe the 1792 Act was unconstitutional.  Katyal and Conway cite Justice Thomas' opinion in NLRB v. Southwest General, where he argued that appointment of the acting General Counsel of the NLRB required Senate approval: 

The officer in question was a principal officer, [Justice Thomas] concluded. And the public interest protected by the Appointments Clause was a critical one: The Constitution’s drafters, Justice Thomas argued, “recognized the serious risk for abuse and corruption posed by permitting one person to fill every office in the government.” Which is why, he pointed out, the framers provided for advice and consent of the Senate.

This was also an appointment under the Federal Vacancies Reform Act, so Justice Thomas was saying that the FVRA, as applied to principal officers, is unconstitutional.

Scalia's opinion and Thomas' opinion can be reconciled if one concludes that, as to principal officers, the acting appointment can only be given to a person who has already been confirmed to another office by the Senate.  We could say that the Senate implicitly confirmed the person to an office whose duties included (a) whatever duties are assigned to that office; plus (b) acting temporarily in another office if the President chooses.  Noel Canning didn't involve the specific issue of whether un-confirmed persons could assume the duties of offices that ordinarily require confirmation, so Scalia may have been speaking loosely and not meant that the President could designate anyone as an acting officer (although that's what the 1792 Act says).  And Southwest General didn't involve appointment of a person previously confirmed to a different office, so Thomas may not have been thinking about that possibility. 

But that doesn't help Whitaker, who wasn't confirmed by the Senate for another office (at least not recently; Katyal and Conway concede he was confirmed for a different office, since relinquished, in 2004).

One more possibility: maybe an acting position isn't an "office" and so designation of that person isn't an "appointment" for constitutional purposes.  Note that the 1792 Act doesn't say the President can "appoint" an acting officer; it says the President may "authorize any person or persons at his discretion to perform the duties" of the vacant office.  This is also true of the FVRA, which says the President "may direct" a person to perform duties of the office but doesn't say "appoint." Maybe that's coincidence, or maybe it's Congress trying to draft around the appointments clause.    In any event, I'm not sure it works, because it still leaves a un-confirmed person doing things that are supposed to be done by a confirmed person.  Thomas didn't consider this question in Southwest General but he necessarily assumed (without discussion) that designating an acting general counsel is an "appointment."

So maybe the (acting) Attorney General indeed is unconstitutional.

(Thanks to Andrew Hyman for raising the issue, but he doesn't necessarily endorse the analysis).

11/08/2018

Textualism Wins...
Michael Ramsey

...in the first Supreme Court opinion in an argued case this term.  In Mount Lemmon Fire District v. Guidothe Court held (unanimously, per Justice Ginsburg) that the Age Discrimination in Employment Act (ADEA), U.S.C. § 630(b), means what it obviously says about the definition of "employer."  The relevant language is: 

The term ‘employer’ means a person engaged in an industry affecting commerce who has twenty or more employees . . . . The term also means . . . a State or political subdivision of a State.

The question in the case was whether a political subdivision of a State (here, the fire district) must have 20 or more employees to be considered an "employer."  The answer is: of course not.  That's pretty much what Justice Ginsburg's opinion says.

The Wall Street Journal, in an editorial titled Judges vs. Telepathists -- Are the Supreme Court Justices all textualists now?, comments favorably -- noting that "The Court’s conservatives agreed with liberals though the ruling may subject cities to more litigation."  Yes, that's how textualism works.

Astoundingly, the Mount Lemmon case went to the Supreme Court because there was a circuit split, with most of the courts of appeal to consider the issue coming out the other way (the Ninth Circuit in the decision below got it right; thanks, Judge O'Scannlain). The problem appears to go back to a Seventh Circuit case, Kelly v. Wauconda Park Dist., 801 F. 2d 269 (CA7 1986), which I looked up to see how things went wrong.  And the answer is: legislative history. 

The panel there began by deciding that the text of the ADEA is ambiguous, not because the text is ambiguous but because it's a "fair and reasonable interpretation" that Congress "merely intended to make it clear that states and their political subdivisions are to be included in the definition of 'employer,' as opposed to being a separate definition of employer."  Then, having created ambiguity by imagining a purpose contrary to the plain text of the statute, the panel looked at the legislative history and found such a purpose, mainly in general statements such as “[t]he passage of this measure insures that Government employees will be subject to the same protections against arbitrary employment [discrimination] based on age as are employees in the private sector.”  And finally it ruled against Kelly, the employee, because "[i]n the face of this evidence that Congress intended [the ADEA] to apply the same coverage to both public and private employees, Kelly fails to offer any evidence from the legislative record of the 1974 ADEA amendment which supports his interpretation."  To the contrary, the panel noted with evident disdain, the employee relied only on the text of the statute!

Justice Scalia would be proud.  We have come a long way from Kelly v. Wauconda, with much credit to him.

11/07/2018

Heather Elliott: Justice Gorsuch's Would-Be War on Chevron
Michael Ramsey

Heather Elliott (University of Alabama - School of Law) has posted Justice Gorsuch's Would-Be War on Chevron (21 Green Bag 2d 315 (2018)) on SSRN.  Here is the abstract:

Supreme Court decisions such as Chevron v. Natural Resources Defense Council require varying levels of deference to legal interpretations provided by administrative agencies – deference that recently appointed Justice Neil Gorsuch believes undermines the separation of powers. He has, since joining the Court in April 2017, found no vehicle for actually executing his anti-Chevron mission. This Essay examines his statement upon denial of certiorari in Scenic America v. Department of Transportation. Justice Gorsuch’s statement is telling both for Scenic America’s unsuitability as a vehicle to address the deference doctrines that he cares about and for the rhetoric he uses in discussing the case. The rhetoric he uses reveals his interest in reviving the non-delegation doctrine and his formalist approach to separation of powers, both of which bode ill for the modern administrative state.

(She writes that last line like its a bad thing...).

11/06/2018

Want to Get Cited by Supreme Court Justices? Try Originalism
Michael Ramsey

SCOTUSblog's "Empirical SCOTUS" feature has this post: With a little help from academic scholarship.  Among many interesting findings, author Adam Feldman's analysis suggests that originalist scholarship is a good way to get cited by Supreme Court Justices (though not so much in majority opinions).  He finds:

Justices Clarence Thomas and Neil Gorsuch were much more likely to cite journal articles than their colleagues on the court, as Thomas had by far the most such cites and Gorsuch had all of his cites in a little over one term. Thomas cited the majority of these articles in his dissenting opinions; 39 of his citations came in dissent compared to 33 in concurrence, and only 7 in majority opinions. Gorsuch on the other hand mainly cited articles in his concurrences with 23, compared to 19 in dissent and only two in the majority.

The post doesn't directly examine what kinds of articles are cited, but as Thomas and Gorsuch are the most strongly originalist Justices, it seems likely that originalist articles catch their eye.  This is borne out by another set of findings:  the post lists the most-cited scholars, and that list includes originalist-oriented scholars Caleb Nelson, Akhil Amar, Saikrishna Prakash, William Baude, Bradford Clark and Anthony Bellia (eight of the ten most cited).

And of the University of San Diego law faculty, two appear on the list of scholars cited by the Justices at least twice in the last two terms, and both of them are originalist-oriented scholars.

(But sadly, placement in a top journal appears to be a key factor too: "Looking at this practice from another angle, we can see that the justices tended to cite elite law reviews most frequently, although they cited a wide variety of law journals across all opinions. Over the past two terms the justices cited Harvard Law Review in 29 opinion-observations. Yale Law Journal was cited next most often with 15 cites, followed by University of Chicago Law Review with 12. Several journals outside of schools’ flagship law reviews received multiple cites, including the online Harvard Law Review Forum, the American Criminal Law Review and the Antitrust Law Journal.").

11/05/2018

Tenth Annual Originalism Works-in-Progress Conference in San Diego
Michael Ramsey

The Center for the Study of Constitutional Originalism is pleased to announce the papers and commentators for the Tenth Annual Hugh and Hazel Darling Foundation Originalism Works-in-Progress Conference at the University of San Diego, February 22-23, 2019:

Josh Blackman (South Texas) & James Phillips (Stanford), Corpus Linguistics and the Second Amendment.  Commentator:  Nelson Lund (George Mason)

Andrew Kent (Fordham), Ethan Leib (Fordham) & Jed Shugerman (Fordham), “Faithful Execution” and Article II.  Commentator:  Bernadette Meyler (Stanford)

Jennifer Mascott (George Mason), The Ratifiers’ Theory of Officer Accountability.  Commentator:  Will Baude (Chicago)

Robert Reinstein (Temple), The Implied Powers of the United States.  Commentator:  Michael McConnell (Stanford)

Fred Schauer (Virginia), Against the Interpretation-Construction Distinction. Commentator:  Keith Whittington  (Princeton)

Jeremy Telman (Valparaiso), John Marshall’s Constitution: Distinguishing Originalism from Ipse Dixit in Constitutional Adjudication.  Commentator:  Michael Paulsen (St. Thomas)

William Treanor (Georgetown), Framer’s Intent: Gouverneur Morris, the Committee of Style, and the Creation of the Federalist Constitution. Commentator:  Jonathan Gienapp (Stanford)

We are excited to again have such a distinguished lineup of authors and commentators for the conference, and we invite all scholars who are interested in originalism to attend and participate in the conference by reading the papers and joining the discussion.

Complete Gienapp Symposium at Balkinization
Michael Ramsey

Thanks to Jack Balkin, here is a complete set of links to the Balkinization symposium on Jonathan Gienapp's new book The Second Creation: Fixing the American Constitution in the Founding Era (Belknap Press 2018): 

Jack Balkin, Introduction to Symposium on Jonathan Gienapp, The Second Creation

Jack Balkin, The Second Creation and Orignalist Theory

Gerard Magliocca, Fixation and Legitimacy

Bernadette Meyler, The Second Creation and Its Implications

Christina Mulligan, Evolving into the Fixed Constitution

Alison L. LaCroix, The Invention of the Archival Constitution

 
 
 
 

11/04/2018

Ernest Young: Dying Constitutionalism and the Fourteenth Amendment
Michael Ramsey

Ernest A. Young (Duke University School of Law) has posted Dying Constitutionalism and the Fourteenth Amendment (Marquette Law Review, forthcoming) on SSRN.  Here is the abstract:

The notion of a “living Constitution” often rests on an implicit assumption that important constitutional values will “grow” in such a way as to make the Constitution more attractive over time. But there are no guarantees: What can grow can also wither and die. This essay, presented as the 2018 Robert F. Boden Lecture at Marquette University Law School, marks the sesquicentennial of the Fourteenth Amendment’s ratification as a powerful charter of liberty and equality for black Americans. But for much of its early history, the Fourteenth Amendment’s meaning moved in reverse, overwhelmed by the end of Reconstruction, the gradual entrenchment of Jim Crow in the South, and the consolidation of racial discrimination in the North. All of the recognized modalities of living constitutionalism—evolving public mores, social movements, electoral outcomes and landmark legislation, and common law development—contributed to constitutional changes that left the Fourteenth Amendment meaning less in the late 19th and early 20th centuries than it did at its ratification. The Amendment’s early history is thus an instance of dying—not living— constitutionalism. It is far from clear, however, that alternative constitutional approaches—such as originalism—could have prevented this constitutional regression. This essay explores how the Fourteenth Amendment got so off track and whether the theory of living constitutionalism can be modified to help it hang on to the Constitution’s core commitments in the face of social change. Ultimately, the essay suggests that constitutional methodology may be less important than constitutional culture in this regard, and that the culture of living constitutionalism ought to emphasize caution over optimism about the inevitability of moral progress. The Fourteenth Amendment’s “lost years” offer precisely the sense of tragedy that might inspire that cultural shift.

(Thanks to Larry Alexander for the pointer).

11/03/2018

Steven Calabresi & Lena Barsky: An Originalist Defense of Plyler v. Doe
Michael Ramsey

In the BYU Law Review, Steven G. Calabresi & Lena M. Barsky: An Originalist Defense of Plyler v. Doe (2017 BYU L. Rev. 225 (2017)).  Here is the abstract:

This Article offers a defense of the Supreme Court’s opinion in Plyler v. Doe based on the original public meaning of the Fourteenth Amendment when it was enacted in 1868. We argue that at that time, the Fourteenth Amendment granted certain rights, such as life, liberty, and possession of personal property, to immigrants under the Equal Protection and Due Process Clauses, but did not grant them the privileges and immunities of citizenship (e.g. all civil rights and the political right to vote). We also argue that public education is a right of all persons protected by the Due Process and Equal Protection Clauses and was protected at the time of the Fourteenth Amendment’s ratification. We thus conclude that the Fourteenth Amendment granted a free public school education to both citizens and immigrants from July 9, 1868, onward.

11/02/2018

"Originalism 3.0"
Michael Ramsey

I am in Chicago today (with co-blogger Mike Rappaport) for the Northwestern University Law Review Symposium "Originalism 3.0".  Here is the program description:

As originalist modes of argument come to dominate Supreme Court opinions and argument, understanding and debating this theory of constitutional interpretation has only become more relevant. NULR is excited to host this important and timely dialogue organized by leading scholar of originalism Professor John O. McGinnis. Bringing together leading figures and exciting new voices in the field of constitutional interpretation and originalism, along with prominent critics of the theory, the symposium will focus on interesting and hotly debated questions within originalism as the theory moves into its next chapter.

These important questions will be presented through new papers, and accompanying comments, by:

  • Bernadette Meyler, with comments from John Harrison
  • Steven Calabresi, with comments from Jamal Greene
  • Larry Solum, with comments from William Ewald
  • William Baude & Stephen Sachs, with comments from Michael Ramsey
  • Thomas Colby, with comments from Randy Barnett
  • John McGinnis & Michael Rappaport, with comments from Richard Kay 

Discussions will be moderated by esteemed members of the Northwestern Law Faculty.

11/01/2018

Birthright Citizenship: The Other Side
Michael Ramsey

Some media reports make it sound like no legal experts endorse the President's reading of the Constitution's birthright citizenship clause.  I do not endorse it.  But some do, typically on originalist grounds.  Here is some recent commentary:

Hans A. von Spakovsky: Trump is right – ending birthright citizenship is constitutional. (Fox News).

Seth Barrett Tillman: Canonical Cases and Other Quodlibets: A Response to Professor Fallon
Michael Ramsey

Seth Barrett Tillman (National University of Ireland, Maynooth (NUI Maynooth) - Faculty of Law) has posted Canonical Cases and Other Quodlibets: A Response to Professor Fallon (97 Texas Law Review Online __ (forthcoming circa Dec. 2018)) on SSRN.  Here is the abstract:

In a far ranging 2018 article in Texas Law Review, Professor Fallon opines on the scope of the duty of subordinate Executive Branch officers to obey conflicting commands and policies emanating from the President and the federal courts, including the Supreme Court. The subject is not an easy one. It is a question which cannot be answered by turning exclusively to the past practices of executive officers during times of crisis and conflict—i.e., crises in the country and conflict between the branches of the federal government. Nor can it be answered by turning exclusively to the decisions of the courts. Still, those practices and decisions are important starting points for Fallon’s argument. I have some substantial (and long-standing) doubts about Fallon’s discussion of three well known, if not canonical, cases. My goal, then, is to explain why I think Fallon’s discussion of these cases is—wrong, and then to suggest what may follow from those errors.

10/31/2018

More on Birthright Citizenship
Michael Ramsey

Predictably there has been an outpouring of commentary on birthright citizenship in light of the President's comments.  Without attempting anything comprehensive, here are a few highlights:

At Vokokh Conspiracy, Ilya Somin and Eugene Volokh (both of whom have some policy reservations about birthright citizenship for U.S. born children of illegal immigrants) nonetheless think it is constitutionally required.  Professor Somin adds (and I agree):

Even if the Fourteenth Amendment does not guarantee birthright citizenship to children of undocumented immigrants or temporary visa holders, it does not follow that the president can deny it to them by executive order. The Naturalization Clause of Article I of the Constitution gives Congress, not the president, the power to "establish an uniform Rule of Naturalization." And, when it comes to children of aliens born on US soil, Congress has in fact exercised that power. A federal statute, 8 U.S.C. Section 1401, extends birthright citizenship to any "person born in the United States, and subject to the jurisdiction thereof." For reasons well explained by Michael Dorf, this law must be interpreted as granting birthright citizenship to children of undocumented immigrants, even if the Supreme Court were to rule that the similar language of the Fourteenth Amendment does not.

Professor Volokh writes:

I personally think that categorical birthright citizenship is a bad idea; it would be better if children born in the U.S. to illegal aliens, or to legal alien tourists, didn't get U.S. citizenship as a result (though perhaps the answer might be different as to children of legal permanent residents, or to children who have lived here for long enough, or some such). U.S. citizenship is one of the most valuable things in the world, and we generally don't let people get hugely valuable things because of the criminal acts (even if only mildly criminal) of their parents, or for that matter because their parents were lawfully visiting the U.S. at a particular time. Whatever the basis for deciding who our future fellow citizens -- and thus the future rulers of the nation -- should be, the fact that the child was born on our territory shouldn't be enough.

This having been said, the Constitution seems pretty clear to me, even if I disagree with the rule it sets forth: Being the child of illegal aliens (as opposed to, say, the child of foreign diplomats) doesn't stop you from being "subject to the jurisdiction" of the U.S. Jurisdiction is an entity's power to impose its legal will on someone, and the U.S. unquestionably has the power to do that for children of illegal aliens as much as for children of legal aliens or of citizens. People who commit a crime, including the crime of illegal entry, don't somehow elude the jurisdiction of the U.S. as a result. Likewise, the children of people who commit this crime are subject to our jurisdiction as well.

In the New York Times, the great Reconstruction historian Eric Foner: Donald Trump;s Unconstitutional Dreams: The President Has Birthright Citizenship All Wrong.  (Thanks to Michael Perry for the pointer).

And at NRO, Robert Verbruggen: Birthright Citizenship: A Nutty Policy We’re Probably Stuck With.  It concludes:

The argument against birthright citizenship certainly has a long history, as can be seen in these legal opinions released within decades of the 14th Amendment’s enactment. But as I said at the outset, I don’t quite find it convincing, given the more direct evidence from the text and more immediate historical context — though it must be conceded that we have no idea what the framers of the 14th Amendment would have thought about illegal immigrants in particular, because illegal immigrants simply didn’t exist back then.

To defend an executive order before the Supreme Court, however, the Trump administration would need to convince all five originalist judges that “subject to the jurisdiction” must be read in a way that’s somewhat quirky to modern ears, relies on a highly specific reading of the historical evidence, and overturns more than a century’s worth of standard practice. That’s a longshot.

Does Illegal Immigration Necessarily Consist of “Aliens in Amity” With the U.S.?
Andrew Hyman

Birthright citizenship is much in the news right now.  In the leading case of Wong Kim Ark (1898), the U.S. Supreme Court discussed the old law of England (my emphasis in bold):

The fundamental principle of the common law with regard to English nationality was birth within the allegiance, also called "ligealty," "obedience," "faith," or "power" of the King. The principle embraced all persons born within the King's allegiance and subject to his protection. Such allegiance and protection were mutual -- as expressed in the maxim  protectio trahit subjectionem, et subjectio protectionem -- and were not restricted to natural-born subjects and naturalized subjects, or to those who had taken an oath of allegiance, but were predicable of aliens in amity so long as they were within the kingdom. Children, born in England, of such aliens were therefore natural-born subjects. But the children, born within the realm, of foreign ambassadors, or the children of alien enemies, born during and within their hostile occupation of part of the King's dominions, were not natural-born subjects because not born within the allegiance, the obedience, or the power, or, as would be said at this day, within the jurisdiction, of the King.

Therefore, one key question now is whether it’s reasonable to say that people who have immigrated unlawfully (by skipping over long lines of applicants, evading points of entry, and refusing to prove any right to asylum) are necessarily “aliens in amity,” regardless of what the President might say, and regardless of what Congress might say.  In Miller v. United States (1870), for example, the U.S. Supreme Court said (citing an old English case from 1696) that “subjects of a state in amity with the United States” are nevertheless not themselves in amity with the United States if they engage in “hostile acts” against the U.S. during a war.  Surely, if a million unarmed citizens of the United States decide to elbow their way into another country, without any involvement of the U.S. government, that country could properly consider them to be invaders at war, and treat them accordingly.  

So, I respectfully dissent from Mike Ramsey’s <view that “illegal immigrants do not fit into any of the exceptions to territorial jurisdiction.”  Just because illegal immigration was not an offense against any federal laws in 1868 doesn’t mean we must refrain from drawing reasonable inferences about how it would have (or could have) been addressed at that time.

Responses to Andrew Hyman and Michael Ramsey
Eric Segall

Thanks to Andrew Hyman for engaging with my post. We agree on most matters but do have one bone of contention. He writes that "non-originalists have a variety of approaches to constitutional law; they are no more monolithic than originalists, and often they have no compunction about giving the constitutional text a new meaning that it never previously had, essentially rewriting the text.  There’s nothing shameful or mythical about acknowledging this."

The major point of my post was that today's originalists who claim not to be bound by original expected applications are no better (or worse) than so-called non-originalists "at giving the constitutional text a new meaning that it never previously had, essentially rewriting the text." Both sides claim that they are giving the text itself an updating meaning not rewriting it. The reality, however, is that very few judges or scholars today are primarily motivated by text or history in hard constitutional cases and have little compunction in updating old principles to new facts. The difference is many originalists are claiming to be applying the original public meaning as a major factor in constitutional interpretation (when they are really just updating old principles) while non-originalists admit up front that updating the text is fully permissible with original meaning being just one factor among many to be considered.

As for Professor Ramsey's question from yesterday , here's my answer:

I’m not an expert on the issue of birthright citizenship but it appears there is strong consensus among scholars that both the text and history of the 14th Amendment are clear on this question. In my fantasy world of super clear error judicial review, this might be a close case but as I said I haven't researched it. Of course, we don’t come close to living in that world so the reality is that all bets are off and we can only predict what the Court will do as a political, not legal, matter. (See Janus).

An Interpretive Conundrum in Jam v . IFC
Michael Ramsey

The Supreme Court hears oral argument today in Jam v. International Finance Corporation (SCOTUSblog coverage here and here).  It's a statutory case with an interesting interpretive twist.

The International Finance Corporation (IFC), an international organization based in Washington D.C., claims it is immune from suit under the International Organizations Immunities Act (IOIA), a federal law enacted in 1945.  IOIA provides that  that international organizations “shall enjoy the same immunity from suit and every form of judicial process as is enjoyed by foreign governments.” 28 U. S. C. 288a(a)(b).  When the statute was enacted, foreign governments enjoyed almost complete immunity from suit, although courts would defer to an executive branch determination that immunity should not be applied.  Today, however, foreign governments have less in the way of immunity thanks to the Foreign Sovereign Immunities Act (FSIA), enacted in 1976.  Among other things, the FSIA provides an exception for immunity for commercial activities (which would likely include most of what the IFC does).

So when the IOIA said that the IFC gets the "same immunity" as foreign governments, did it mean the same immunity that foreign governments had in 1945, or the same immunity as foreign governments may have from time to time?

The issue splits foreign affairs law scholars, in a divide that crosses ideological and methodological lines.  For what it's worth, I joined an amicus brief in support of the IFC (that is, arguing for the 1945 version of immunity), along with some internationalist scholars with whom I rarely agree.  There is an impressive list of scholars on the other side, reflected in this amicus brief, and also this Lawfare post by Ingrid Wuerth (Vanderbilt) (with whom I often do agree).

I found it a close question, but I was mostly persuaded by this argument (developed in the IFC brief, and not really engaged in the opposing professors' amicus):  The IOIA additionally provides that "The President shall be authorized, in the light of the functions performed by any such international organization, by appropriate Executive order to withhold or withdraw from any such organization or its officers or employees any of the privileges, exemptions, and immunities provided for in this subchapter ..."  28 U.S.C 288.  That looks like a delegation to the President to allow a more flexible approach to immunity where appropriate, which is consistent with picking a near-absolute and fixed baseline immunity.  (The plaintiffs' brief and the opposing professors' amicus brief complain that using the 1945 baseline is unduly rigid, but that's simply not true once one considers the role of the President).  Then, when Congress enacted the FSIA, it made no reference to the IOIA or to international organizations, or to the President's role under IOIA.  I think that meant it was leaving their immunity to the President to decide under IOIA, rather than supplanting the President's role.   (This argument is somewhat parallel to the immunity of foreign governments officials, which is also not covered in the FSIA).

Notably, the briefs on both sides concentrate heavily on finding Congress' meaning at the time of enactment (so, it's another case of statutory originalism).

I can't resist this aside, though it's not in the briefs or part of the question presented at the Supreme Court:  The IFC should absolutely lose this case (as to immunity), despite our amicus.  The IFC's Charter (called its Article of Agreement) states: 

Actions may be brought against the [IFC] only in a court of competent jurisdiction in the territories of a member in which the Corporation has an office, has appointed an agent for the purpose of accepting service or notice of process, or has issued or guaranteed securities.

That looks like a waiver of immunity to me, and the IOIA specifically says international organizations may waive their immunity.  If that's right, there's no need for the Court to answer the question presented, because there's no immunity even under a 1945 version of immunity.  But in a preposterous opinion in Mendaro v. World Bank, 717 F.2d 610 (D.C. Cir. 1983), the D.C. Circuit read equivalent language in the World Bank charter to allow only a suit that “would benefit the organization over the long term.”  The D.C. Circuit in Jam dutifully followed Mendaro, although Judge Silberman's opinion for the panel expressed some doubt about it (calling it, with some understatement, "a bit strange"), and the Supreme Court did not take up the issue.

10/30/2018

Birthright Citizenship and Constitutional Interpretation
Michael Ramsey

Various media outlets are reporting that President Trump is considering an executive order modifying rules on birthright citizenship.  They are also typically reporting or heavily implying that this order would violate the Constitution.  I think the issue is more complicated than it's being portrayed.

There are two separate issues, (a) whether the Constitution allows the U.S. to deny birthright citizenship to the U.S.-born children of illegal immigrants, and (b) if so, whether the President can do it on his own, without an act of Congress.  I'll leave the second question to one side, as I think it's mainly a question of administrative law.  I assume the President's order would amount to a reinterpretation of existing statutory citizenship law; it seems clear that the President does not have independent power to vary the citizenship laws, but arguably he has power to change the administrative interpretation of them.  (As an aside, though, my guess is that if the issue ends up in court, the most likely outcome would be for the courts to find that the President lacks power to change the rules on his own and thus avoid reaching the constitutional question).

On the constitutional question, as I have written several times in the past (e.g., here, with links to earlier posts), I think the original meaning of the Fourteenth Amendment is clear in granting birthright citizenship to U.S.-born children of illegal immigrants.  Briefly:

The Amendment says that "All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States..."  It was a bedrock principle of nineteenth-century international law that sovereigns had complete jurisdiction (that is, authority to prescribe law) over all persons and things within their sovereign territory.  This principle was subject to several exceptions, notably (1) territorial jurisdiction did not extend to ambassadors and other diplomatic personnel, nor to foreign rulers and their property, all of whom had immunity from the laws of the territorial sovereign; (2) territorial jurisdiction could be limited by treaty, as the U.S. did to some extent in treaties with Indian tribes; and (3) territorial jurisdiction did not exist as a practical matter over hostile armies and in areas under hostile occupation.  These principles are described in Chief Justice Marshall's opinion in The Schooner Exchange (1812) and in widely read international law treatises of the time.

U.S.-born children of illegal immigrants do not fit into any of the exceptions to territorial jurisdiction.  Nor is there any doubt that such children are  governed by U.S. law at the moment of their birth.  Thus they are "subject to the jurisdiction" of the United States at birth.  As a result, the text's original meaning grants them U.S. citizenship at birth.

For originalists, that should be an end of the matter.  (There are some counterarguments [discussed here] principally based on comments made in Congress during the drafting process.  But on the whole the drafting debates support the above reading, as Garrett Epps has shown, and in any event the debates contain a range of views, some poorly expressed or poorly thought out; they should not overcome the text’s clear meaning.)

But that is not the end of the matter.  Modern constitutional interpretation does not fully embrace originalism.  The birthright citizenship issue is much more difficult from an evolving constitution approach (see my post here, and especially this post by Mike Rappaport).  The drafters and ratifiers of the Fourteenth Amendment did not understand the issue of widespread illegal immigration.  The country did not have restrictive immigration laws at the time.  Thus the drafters and ratifiers likely did not see themselves as deciding the issue.  It’s possible that, had the issue been before them, they would have made a different choice.  And in any event, modern circumstances are much different.  Most evolving constitution approaches typically would allow courts to consider the best fit for modern conditions in deciding an issue under these circumstances.  And depending on one’s view of the policy arguments, it’s quite possible to reach the conclusion that the nineteenth century rule, adopted by people long dead to resolve a different challenge (principally the citizenship of former slaves), should not be used to constrain the choices of the elected branches to deal with a modern problem the framers did not anticipate.

I think this is a substantial difficulty for evolving constitutionalists, which is why I expect that most of the arguments against the President’s proposal will be couched in originalist terms (even by commentators who are typically not originalists).

The issue also poses an interesting dilemma for advocates of judicial restraint, including recent guest blogger Eric Segall.  Professor Segall says in his recent post that (a) courts should not intervene against the political branches except where the originalist arguments are overwhelmingly clear, and (b) in litigated cases the originalist arguments are virtually never overwhelmingly clear.  (Specifically, he writes: "Judges should not strike down laws unless the plaintiff shows through clear and convincing evidence that the law violates either clear text (almost never happens) or uncontested history behind the text.")  My question to him:  is this a case (assuming it gets to court) where the originalist arguments are sufficiently clear?  And, as a follow up: if the answer to that question is yes, are the changed modern circumstances sufficient to permit a reinterpretation, or at least to make the outcome sufficiently unclear that the courts should decline to intervene?

Professor Segall is Mostly Correct “IMHO”
Andrew Hyman

I agree with Professor Eric Segall’s recent blog post on several points.  For example, he writes that there are different kinds of originalists (i.e. “not all have” the same approach), and says that original meaning “often requires that the application of the text evolves as modern circumstances evolve.”  I agree with all of that.  Segall is also correct that originalists and non-originalists fit on a spectrum where they meet and become virtually indistinguishable.  And, he writes that “[j]udges should not strike down laws unless the plaintiff shows through clear and convincing evidence that the law violates either clear text ... or uncontested history behind the text. ”  All pretty much true, but I would like to disagree on a few points.   
 
Professor Segall writes that, “It is a shameful myth propounded by some originalists that non-originalists manufacture new constitutional principles outside the Constitution’s text.”  On the contrary, some non-originalists do attach a much higher value to current societal needs than to the Constitution’s text, on the ground that the Constitution’s meaning should evolve so as to fit whatever the times now demand; some non-originalists are less freewheeling than that, but still would allow the Constitution to be amended outside of the Article V amendment process during so-called “constitutional moments.”  Whether Professor Segall subscribes to any such views or not, non-originalists have a variety of approaches to constitutional law; they are no more monolithic than originalists, and often they have no compunction about giving the constitutional text a new meaning that it never previously had, essentially rewriting the text.  There’s nothing shameful or mythical about acknowledging this.  
 
Regarding specific clauses mentioned by Professor Segall, I’ve written a bit about phrases like “equal protection of the laws,” and “due process of law,” and have found that there is no preponderance of evidence, much less clear and convincing evidence, for the extremely broad meanings that the judiciary have attributed to these clauses in the Fourteenth Amendment. But that has not stopped many non-originalists from using those clauses to embody whatever policy preferences they want.    I disagree with Professor Segal that those two clauses are “hopelessly vague,” but appreciate his reluctance to let the judiciary harness that supposed hopeless vagueness.  
 
The Due Process Clause has ancient roots going all the way back to Magna Carta, and primarily established a separation of powers, i.e. the executive could not inflict deprivations without judicial proceedings authorized by legislatures.  To the extent that the Due Process Clause limits how American legislatures authorize deprivations of liberty, the clause simply establishes a remedy for violating other constitutional trial procedures — and that remedy is liberty.  The Equal Protection Clause was more innovative in 1868, but still was not a blank check for the judiciary to impose equality; if the clause had referred to “the equal protection of its laws” instead of “the equal protection of the laws” then the clause would have only required equal administration  of whatever laws were on the books of each state; the only purpose for using the word “the” instead of “its” was to include federal law, thus allowing SCOTUS to check state legislatures pursuant to congressional declaration.  I would have no problem if those two clauses (DP and EP) would be applied faithfully against legislators in new and unexpected circumstances, if there is clear and convincing evidence that the legislators have violated these clauses.  Professor Segall is absolutely right to require clear and convincing evidence,  or “irreconcilable variance” as Hamilton put it in Federalist 78, and this requirement is deeply rooted in the original meaning of judicial power.

10/29/2018

What is Original About Original Meaning?
Eric Segall

[Editor's note:  For this guest post we again welcome Eric Segall, the Kathy and Lawrence Ashe Professor of Law at Georgia State University College of Law.]

Over the last three weeks, I have given talks at six law schools discussing my recent book Originalism as Faith. In my book, I go all the way back to before the Constitution was ratified to discuss the topic, but in these talks, I began with Judge Robert Bork, Attorney General Ed Meese, and Raoul Berger and explain how they thought the Warren and early Burger Court’s liberal decisions were illegitimate. They complained that the only proper inquiry (leaving aside precedent) for a judge in a constitutional case is to try to ascertain whether the law challenged by the plaintiff violates the original intent of the Constitution applying a heavy burden of proof on the plaintiff. The Original Originalists, as I call them, expected judges to defer substantially to the decisions of other political officials.

But times, politics and judges change. By 1992, the lower courts had been flooded with conservative judges selected by Ronald Reagan and George H.W. Bush, and Justices Anthony Kennedy and Clarence Thomas joined with Rehnquist, O’Connor, and Scalia to form a five-person majority that reached, if not consistently conservative results at least decisions substantially more conservative than those of the Warren and early Burger Courts. In the areas of federalism and criminal procedure, especially, the Rehnquist Court moved the law far to the right. This new conservative Court, and the new conservative lower federal courts, was followed by a different brand of originalism that had little in common with the Original Originalists.

Many, certainly not all, academic originalists searched for a theory to justify the new aggressively conservative judicial review. The so-called New Originalists made several important changes to the doctrine. They decided that the search was for the original public meaning of the text not the original intent of the ratifiers; they distinguished between constitutional interpretation (the search for the non-legal communicative context of the text) and constitutional construction (giving the text legal effect); they dropped the deference aspects of originalism; and most importantly for this post, they decided that originalists were bound by original “fixed principles” but not “original expected applications.” That last move took the “original” out of “originalism” and is the move that has most befuddled the audiences for my book talks.

Here is Mike Ramsey’s explanation for why it is possible that the 14th Amendment’s original meaning prohibits same-sex orientation discrimination:

To begin, I assume that the Fourteenth Amendment’s equal protection clause establishes   an anti-discrimination or equal treatment rule …. the focus, then, is on the original public meaning of “equal” in the equal protection clause.  I will further assume the word had an original public meaning of (at minimum) non-discrimination on the basis of characteristics such as race (but not only race, or the clause would have proscribed only race discrimination).  Thus the question is whether sexual orientation is a characteristic like race.  Clearly people at the time the clause was adopted didn’t think so, because apparently no one thought the clause protected same-sex sexual conduct.  Though this is sometimes called an “original expected application” it is (especially in this context) highly probative of original meaning: the best explanation of the expected application is that whatever “equal protection” meant to people in 1868, it did not mean constitutional protection of same-sex relationships.

That, though, may not be the end of the argument.  It is possible that understandings of the facts underlying sexual orientation might change in a way that would affect sexual orientation’s status under the fixed meaning of “equal.”  While original public meaning methodology must apply the fixed meaning of the constitutional term, changes in knowledge might change the application of that fixed meaning to particular facts. (emphasis added).

Similarly, Professor Ilya Somin, conceding that gender discrimination laws (like statutes prohibiting women from being lawyers) were deemed constitutional by most people when the 14th Amendment was ratified, thinks they could be struck down by originalist judges today because of factual mistakes made by the people at the time. Today, an originalist can vote to strike down such laws because “as nearly all originalists recognize, that methodology is entirely consistent with updating the application of the Constitution’s fixed principles in light of new factual information. Indeed, such updating is often not only permitted, but actually required by the theory. Otherwise, it will often be impossible to enforce the original meaning under conditions different from those envisioned by the generation that framed and ratified the relevant provision of the Constitution.”

And Ilan Wurman’s recent book on Originalism says the following: “Originalists recognize that original meaning often requires that the application of the text evolves as modern circumstances evolve.”

Constitutional litigation does not implicate clear language such as the President must be 35 or there must be two Senators from every state. Therefore, what originalists call constitutional interpretation is mostly if not entirely irrelevant to how judges decide cases. Most litigation involves phrases like “equal protection,” “due process,” “free exercise,” and “establishment.” Calling the broad principles raised by these provisions “fixed” but then saying their application can change based on new facts, values, and knowledge is exactly how alleged “living constitutionalists” or folks who believe in pluralistic methods of constitutional interpretation would approach constitutional litigation. It is a shameful myth propounded by some originalists that non-originalists manufacture new constitutional principles outside the Constitution’s text. No one I know does that. Instead, non-originalists simply believe that “original meaning often requires that the application of the text evolves as modern circumstances evolve,” just like Wurman says.

Chapter 7 of my book documents the votes by Justices Scalia and Thomas employing exactly the methodology Wurman, Somin, and Ramsey claim is originalist but in effect is simply the same methodology employed by non-originalist judges and scholars. Cases like Printz v. United States, Seminole Tribe v. Florida, Shelby County v. Holder, Lujan v. Defenders of Wildlife and many other cases striking down laws were decided on the basis of non-textual principles derived from imprecise constitutional language and contested history using a method no different than that employed by the Court in Roe v. Wade, Reynolds v. Sims, and Obergefell v. Hodges.

The reality is that allowing judges to update vague and imprecise constitutional principles with new facts and knowledge takes the “original” out of “originalism.” Thus, today’s originalists who have moved far away from Bork and Berger (and not all have) should stop pretending that their method is legitimate while the method employed by “living constitutionalists” is not. That is simply false because both methods are the same.

Finally, my preferred method of constitutional interpretation, as outlined in my 2012 book Supreme Myths: Why the Supreme Court is not a Court and its Justices are not Judges, is similar to Bork’s and Berger’s. Judges should not strike down laws unless the plaintiff shows through clear and convincing evidence that the law violates either clear text (almost never happens) or uncontested history behind the text.

As I’ve said many times, that method of constitutional interpretation is substantially different than the one employed by any modern Justice and most academic originalists (Mike Paulsen and Steve Smith are exceptions). My deferential approach as a matter of reason and logic is substantially different than the one employed by so-called living constitutionalists and New Originalists. The idea that allowing judges to update the application of “fixed” but hopelessly vague principles prioritizes text and history in constitutional litigation is not based on reason or logic but rather a deeply held faith that the New Originalist method is better or more legitimate than the “living constitutionalists” method. Leonard Leo made that clear at the National Federalist Society annual dinner last year. That faith is misplaced, wrong, and insulting to many lawyers, law professors and judges who believe exactly what Wurman, Somin, and Ramsey (as well as the so-called Originalist Justices) believe about the relevance (or lack thereof) of original expected applications to constitutional law.

10/28/2018

Sean Kammer: Anti-Intellectualism, the Supreme Court, and the Legitimacy of Law
Michael Ramsey

Sean Kammer (University of South Dakota Law School) has posted 'Whether or Not Special Expertise Is Needed': Anti-Intellectualism, the Supreme Court, and the Legitimacy of Law (South Dakota Law Review, forthcoming) on SSRN.  Here is the abstract:

Recently, there has deservedly been much consternation regarding what some see as the increased politicization of the judiciary and the impact it could have on the law’s legitimacy within the broader political order. While that is a valid concern, we should not ignore other potential threats to the judiciary’s legitimacy, including the spread of a particularly virulent strain of anti-intellectualism. Notably, judges have shown an antipathy to expertise aimed not only toward highly technical or complex fields of study, but also toward scholarly fields that judges and lawyers have typically been willing to apply in their analyses, such as history. This article builds upon scholarship regarding the propensity of lawyers and judges to produce simplistic, selective, and ends-oriented histories, a practice that has come to be known as “law office history,” in support of their legal arguments and rulings. It does so by examining two Supreme Court opinions that represent fundamentally different judicial philosophies, thereby demonstrating that law office histories are not unique to any particular approach to judicial lawmaking. It then examines the history of how the judiciary (especially the Supreme Court) and the broader legal profession have come to attain their elite positions within the American social order. This history shows law’s position—indeed, its legitimacy—to be a tenuous one built in substantial part on the perceived intellectual character of law and the perceived intellectual aptitudes of its practitioners. This article thus concludes that the embrace of anti-intellectualism by the legal community, including the frequent dismissal of the work and methodologies of professional historians, threatens to undermine the rule of law itself.

10/27/2018

Kent Barnett: Due Process for Article III—Rethinking Murray's Lessee
Michael Ramsey

Kent H. Barnett (University of Georgia School of Law) has posted Due Process for Article III—Rethinking Murray's Lessee (Geo. Mason L. Rev. __ (2019)) on SSRN.  Here is the abstract: 

The Founders sought to protect federal judges’ impartiality primarily because those judges would review the political branches’ actions. To that end, Article III judges retain their offices during “good behaviour,” and Congress cannot reduce their compensation while they are in office. But Article III has taken a curious turn. Article III generally does not prohibit Article I courts or agencies from deciding “public rights” cases, i.e., when the government is a party and seeking to vindicate its own actions and interpretations under federal law against a private party. In contrast, Article III courts generally must resolve cases that concern “private rights,” i.e., disputes under state or common law between private parties. In other words, despite Article III’s raison d’être, Article III is less likely to apply when the government is a party seeking to advance interests under federal law, and more likely to apply when the government has little to no interest in the controversy.

This essay for the George Mason Law Review’s “Agency Adjudication and the Rule of Law” symposium argues that the ever-expanding, shape-shifting public-rights exception to Article III—as it has developed from abstruse passages in Murray’s Lessee v. Hoboken Land & Improvement Co., 59 U.S. (18 How.) 272 (1856)—was neither inevitable nor consonant with Article III purposes or separation-of-powers underpinnings of Due Process. The public-rights exception is best justified, in general, as extending only to those matters that due process does not implicate (and thus those that Congress could have decided on its own). Accordingly, the public-rights exception’s domain should have an inverse relationship with Due Process’s domain. The essay concludes by considering whether Article III should track traditional notions of due process or modern ones.

10/26/2018

George Will on Hate Crimes and Federal Powers
Michael Ramsey

In the Washington Post, George Will: The federal hate crime law is both unconstitutional and unwise

After showing off his swastika tattoo, Randy Metcalf became involved in a barroom brawl. One of his opponents was an African American, whom he and his friends knocked unconscious. Metcalf repeatedly kicked him in the head and, according to a witness, said, “Die, [n-word], die.” Metcalf was sentenced to 10 years in prison under the federal Hate Crimes Prevention Act that was enacted six years earlier, in 2009.

Soon, perhaps at its conference this Friday, the Supreme Court will decide whether to hear Metcalf’s argument that the provision of the HCPA that he was convicted under is unconstitutional because none of the Constitution’s enumerated powers authorized Congress to enact it. The court should hear and endorse this argument, lest the nation’s dangerously attenuated commitment to limited government become even more so.

On the constitutional point:

Congress, always eager to slip what little remains of the Constitution’s leash that limits Congress’s powers by enumerating them, frequently justifies doing whatever it wants by saying that the behavior it wants to proscribe or prescribe affects interstate commerce and therefore comes under Congress’s enumerated power to regulate this. But although the commerce clause has been construed to be so elastic that it is almost entirely permissive, Congress, perhaps manifesting a vestigial capacity for embarrassment, looked elsewhere for the power to prohibit racially motivated crimes.

Embarrassingly, it pretended to act under the 13th Amendment. Ratified in 1865, it says:

“Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

To justify enacting the HCPA, Congress cited the power granted to it 144 years earlier to effectuate the end of slavery, which shows no sign of returning. Congress, surely with more audacity than sincerity, said that the 13th Amendment, written to erase slavery, authorizes Congress to pursue any goal that it asserts is in some way, however attenuated, a response to a “relic” or “incidents” or lingering reverberation of slavery.

This, says an amicus brief on Metcalf’s behalf, reflects “a growing movement in both academia and Congress to use the 13th Amendment to address a variety of social ills thought to be in some way traceable to, or aggravated by, slavery.” Yet the amendment’s legal significance is unusually clear and limited: It bans slavery, period. So, in 1883, the Supreme Court held that the amendment did not empower Congress to prohibit race discrimination in public accommodations. Congress did that 81 years later, properly acting under the commerce clause. If now the court allows Congress to construe — to flagrantly misconstrue, to its advantage — a notably unambiguous constitutional provision, the damage done by this misguided judicial deference will go beyond injuries to federalism. This dereliction of judicial duty will devalue the written Constitution itself.

The amicus brief mentioned in the article is by Peter Kirsanow and my colleague Gail Heriot, available here.  Prior Originalism Blog coverage of the case is here.

(Via Gail Heriot at Instapundit, who adds: " In a nutshell: Congress claims to be using its power to outlaw slavery in prohibiting hate crimes. And … well … hate crimes are bad things, but they aren’t slavery.").

10/25/2018

Ingrid Wuerth: The Future of the Federal Common Law of Foreign Relations
Michael Ramsey

Ingrid B. Wuerth (Vanderbilt University - Law School) has posted The Future of the Federal Common Law of Foreign Relations (106 The Georgetown Law Journal 1825 (2018)) on SSRN.  Here is the abstract:

The federal common law of foreign relations has been in decline for decades. The field was built in part on the claim that customary international law is federal common law and in part on the claim that federal judges should displace state law when they conclude that it poses difficulties for U.S. foreign relations. Today, however, customary international law is generally applied based upon the implied intentions of Congress, rather than its free-standing status as federal common law, and judicial evaluation of foreign policy problems has largely been replaced by reliance upon presidential or congressional action, or by standard constitutional analysis. Two traditional areas of the federal common law of foreign relations–immunity and the act of state doctrine–are alive and well doctrinally. Their status as federal common law is somewhat unsteady, however, because the Court has not provided a convincing account of why these two topics should be governed by federal common law, and because the traditional basis for the federal common law of foreign relations have eroded. In an important new book, The Law of Nations and the United States Constitution, Anthony J. Bellia, Jr. and Bradford R. Clark argue that the Constitution itself requires courts to apply customary international law in these two areas. Their argument fails to convince. A better alternative is to justify federal common law as necessary to give effect to the very closely-related statutory framework governing foreign sovereign immunity, and because judicial lawmaking is also cabined by the content of customary international law and by some actions of the executive branch. The federal common law of foreign relations does have a future, but it depends neither upon the status of customary international law as federal common law nor upon judicial decision-making about the deleterious effect of state law upon U.S. foreign policy.

This is part of the Georgetown Law Journal symposium on Anthony J. Bellia and Bradford Clark's excellent book The Law of Nations and the United States Constitution.  (I have a contribution to the symposium as well but I didn't say anything about the federal common law of foreign relations there.  My view of its appropriate future is narrower than Professor Wuerth's, though maybe not by much: as described here, I think it is incompatible with the Constitution's original meaning and as a practical matter can be confined to a few narrow areas where it is long established).