01/18/2021

A Textualist/Originalist Case Against the Power to Impeach and Try Former Presidents
Michael Ramsey

My co-bloggers have made powerful arguments for (Mike Rappaport, John Vlahoplus) and against (Andrew Hyman, David Weisberg) Congress' power to impeach and try former officers.  This post restates and expands the textualist/originalist case against Congress' power.

To begin, a problem with interpreting the Constitution's impeachment provisions is that they are scattered across three sections in two different articles.  The framers would have done better to draft a single impeachment section.  The order in which one reads the provisions is important to discerning their meaning.

First, read the impeachment provisions this way: 

The President, Vice President and all Civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.  The House of Representatives ... shall have the sole Power of Impeachment.  The Senate shall have the sole Power to try all Impeachments. ... [N]o Person shall be convicted without the Concurrence of two thirds of the Members present.  Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

This order makes much sense.  Read in this order, the natural interpretation is that the first sentence establishes the impeachment power.  It says who can be impeached (the President, etc.), what impeachment accomplishes (removal from office), and for what one can be impeached ("high Crimes and Misdemeanors").  The subsequent sentences describe how this impeachment power is distributed among institutions (the House impeaches, the Senate tries, with a supermajority conviction requirement).  The last sentence limits the scope and effect of punishment upon conviction.  In this reading, the disqualification clause appears ancillary -- in addition to removal from office, the Senate can add disqualification (thus the conjunctive "and").

But the provisions could be read in a different order:

The House of Representatives ... shall have the sole Power of Impeachment.  The Senate shall have the sole Power to try all Impeachments. ... [N]o Person shall be convicted without the Concurrence of two thirds of the Members present.  Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law. The President, Vice President and all Civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

Now the opening sentences convey an undefined power of impeachment (whatever that may mean) divided between the House and Senate.  The subsequent sentences limit the power: punishment can be only removal or disqualification, and (in the last sentence) it is directed that if a sitting President or other officer is impeached and convicted for high crimes or misdemeanors, they "shall" be removed (no discretion).  This appears to be the reading given by John Vlahoplus here.

The latter order has the advantage of being the order in which the sentences appear in the Constitution.  And I agree it is a possible reading.  But I think there are a number of reasons to prefer the former order.

First, this appears to be the way the drafters thought about it.  At the Constitutional Convention, the delegates spent some time debating the sentence that became Article II, Section 4.  In particular, they debated whether "high Crimes and Misdemeanors" was the right standard.  The understanding seems to have been that this language defined and limited the impeachment power.  That is, they thought that if they adopted the "high Crimes and Misdemeanors" standard, there could not be impeachments for other types of actions that did not meet the standard.  In contrast, they did not spend much time at all on the general concept of impeachment, other than as defined in that sentence.  Thus they understood the sentence that became Article II, Section 4 as defining the impeachment power.  Their reading, in the sense of the alternatives stated above, began with Article II, Section 4.

That approach is consistent with a related understanding reflected in the framing debates: the framers saw impeachment as principally about removal.  In the debates, that was the central focus.  They did not talk about the advantages or disadvantages of a general power of disqualification, or a general power of impeachment of private citizens.  That suggests that the drafters understood disqualification as an ancillary punishment that could be added to removal of officers, not as a freestanding punishment that could be wielded against private citizens.

Second, the alternative reading of a largely unlimited impeachment power seems implausible.  The consequence of the second reading is that the House and Senate could impeach and try anyone for any reason.  The power wouldn't be limited to officers or former officers, and it wouldn't be limited to "high Crimes and Misdemeanors." True, it would be limited by the scope of punishment: only removal from office or disqualification from future office.  But that is still an extraordinary power, and one not mentioned in the drafting or ratifying debates.

Professor Rappaport, responding to an earlier version of this argument, says that limits could be derived from eighteenth century English law.  As a general methodological approach, I agree.  But in my understanding, eighteenth century English law did not have any material limits on the impeachment power.  Impeachment was just a judicial proceeding in the parliament.  In particular, it was not clear that "high Crimes and Misdemeanors" was the required standard under English law.  Indeed, that is exactly why the framers had their debate over the language of Article II, Section 4.  They wanted to specify which standard from English law would govern American impeachments.

Further, the common understanding in the post-ratification period and continuing to today is that Article II, Section 4 limits the impeachment power.  That is, people understood  that only officers (or perhaps former officers) could be impeached only  for "high Crimes and Misdemeanors" -- and they understood that this limit arose from Article II, Section 4.  For example, in the 1799 impeachment trial of William Blount, the central question was whether Blount (a former Senator) could be tried.  And the threshold question there was whether Senators are "Civil Officers of the United States."  Blount was acquitted, and the outcome is commonly taken as indicating that Senators are not such officers (and so not subject to impeachment).  But this debate and conclusion makes sense only if Article II, Section 4 defines the scope of the impeachment power.

It's true that (very occasionally) the Senate held a trial after a former officer had left office (Blount, plus Secretary of War William Belknap in 1876, and perhaps one or two others).  But in each case the principal claim was that the impeachment power attached to the officer when that officer was in office (and thus that the limits of Article II, Section 4 were satisfied).  But in any event these are scattered precedents -- by far the more significant precedent is the longstanding assumption that the Senate cannot try private citizens and cannot try people other than for high crimes and misdemeanors.

In sum, my view is that the best reading of the text's original meaning is that Article II, Section 4 defines the impeachment power.  It provides a way to remove sitting officers for specified misconduct.  It does not do more than that.  Article I, Section 3 adds that the Senate, in removing an officer pursuant to this power, may also impose future disqualification (removal "and" disqualification).

There are three main counterarguments.  The first is that it would be implausible (even "absurd") to allow an officer to escape future disqualification by the fortuity of the officer's term expiring or the expediency of an abrupt resignation.  One could respond to this claim by implying a power to try officers who resigned, or whose terms expired, after being impeached (as Andrew Hyman and Keith Whittington, respectively, suggest).  But in addition to being atextual, I don't think the power's purpose compels it. As discussed, the framers' central focus in creating impeachment power was removal of a miscreant officer, before the officer could do further damage.  Once the officer resigned or left office, that purpose would be accomplished.  And the threat of future disqualification upon conviction might be seen as an incentive to leave office without contesting the impeachment (sort of in the nature of an implicit plea bargain).  One may speculate which approach better suits the framers' purposes.  But neither seems absurd or implausible.  A narrow reading (limited to sitting officers) accomplishes the framers' central purpose of removal.

Second, it's argued that English law (and some post-Revolution state practice) allowed impeachment of private citizens.  I agree that this would be highly relevant if the Constitution's text didn't establish its own limits.  But it's quite plausible that the framers wanted to limit the scope of impeachment as compared to English law.  We know they did with respect to some aspects, including the extent of punishment.

The third counterargument relies on precedent -- especially the Belknap precedent mentioned above.  I'm surprised that anyone (especially any originalist or traditionalist) regards this precedent as meaning anything. It occurred 88 years after ratification (so not indicative at all of original meaning); it was a single incident almost 150 years ago (so not indicative of an common historical practice).  Moreover, it occurred in a highly partisan atmosphere.  The Democrats, in the midst of the intense post-war debate over reconstruction, had recently regained control of Congress and were anxious to further embarrass the scandal-plagued Grant administration in the run-up to the 1876 elections.  Ultimately Belknap was acquitted, with voting largely on partisan lines.  This does not seem a reliable exposition of constitutional principle.  (Perhaps there are other meaningful precedents -- some have mentioned the Blount impeachment, which also seems inconclusive -- but the surprising focus on Belknap indicates that there aren't others).

As a result, neither purpose nor precedent seems strong enough to overcome the simple textual argument: Article II, Section 4 establishes the scope of the impeachment power: only officers can be impeached and tried, and only for high crimes or misdemeanors.

01/17/2021

Keith Whittington on the Timing of Impeachment
Michael Ramsey

At Volokh Conspiracy, Keith Whittington:  When is an Officer Impeached?  From the introduction: 

During the first impeachment I wrote a series of posts trying to answer the question of when exactly an officer is impeached. (Just to address a common terminological confusion, recall that an "impeachment" is what the House does, and an "impeachment trial" is what the Senate does.) The question seemed relevant because House Speaker Nancy Pelosi decided to sit on the articles of impeachment adopted by the House and delay delivering them to the Senate. But as I emphasized then, the question of the official timing of the impeachment was entirely academic since there is no constitutional or legal consequence to an impeachment except that the Senate may then hold an impeachment trial (unlike in some state systems where the officer is immediately suspended from his office at the moment of impeachment). The delay did have political and rhetorical consequences, however, undermining the House's claim that the president was a clear and present danger to the republic who needed to be removed immediately.

Pelosi is doing it again. The House has voted to impeach and has approved an article of impeachment, and Pelosi has even named a team of managers to prosecute the impeachment case. But Pelosi has once again decided to sit on the articles and to not formally notify the Senate that the president has been impeached. This time it might have more substantial consequences.

And further: 

[T]he House risks handing the Trump defense team unnecessary legal arguments. It will already be difficult to persuade two-thirds of the senators that a former president can be put on trial and convicted of high crimes and misdemeanors. I believe that the House can impeach a former president and that the Senate can try a former president, but the textual case is stronger for the latter than the former.

...

But if you are of the view that the Senate can try all constitutionally valid impeachments, even when the officer has left the office, but an impeachment is only constitutionally valid when the impeached individual is a current officer, then the timing of the impeachment matters. Some of what Judge Luttig has written suggests that he is of this view. This might be the one circumstance in which, under the federal constitution, the question of when an officer is impeached has actual constitutional consequences.

And the key point:

If you take that possibility seriously—and some senators might—then it matters a great deal when exactly the House used its impeachment power to formally impeach Trump such that it can validly authorize the Senate to hold an impeachment trial. As I observed in the earlier posts, the traditional understanding of the impeachment power in the United States up until the early twentieth century was that the "impeachment" occurs when an authorized member of the lower chamber appears on the floor of the upper chamber and "impeaches" an officer by formally leveling an accusation and demanding a trial. Starting in 1912, the House has taken the view that the "impeachment" occurs when the House votes to adopt a resolution of impeachment. Under the modern view, Trump has already been impeached, and so there should be no question about whether the Senate can start a trial whenever the House gets around to exhibiting articles of impeachment. Under the traditional view, Trump has not yet been impeached and will not be impeached until the House formally notifies the Senate.

01/16/2021

Convicting Former Presidents
John Vlahoplus

The Constitution is famously short on detail, and its impeachment provisions are no exception.  Read literally, their express terms provide only five rules of procedure and three of punishment.  They do not provide an exhaustive list of who may be impeached and convicted, on what grounds, or when.  They do not expressly or by implication forbid convicting a former president. 

The rules of procedure are that the House has the sole power of impeachment; the Senate has the sole power to try impeachments; Senators shall be sworn or affirmed when trying impeachments; the Chief Justice shall preside over the trial of a President; and conviction requires concurrence of two thirds of the Senators present.

The first rule of punishment is that the President cannot grant reprieves or pardons in cases of impeachment.  The express terms of the other two merely set a cap and a floor on punishment.

Cap:  “Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States . . . .”  On its face, this rule is merely a limitation on punishment.  It does not require any.  It allows the Senate to convict but to impose no punishment at all.  It allows the Senate to impose only one of the two specified punishments.  If the presidency is not an office of honor, trust or profit under the United States, for example—as Seth Barrett Tillman argues—the rule allows the Senate to forbid convicted Presidents ever to hold such offices while permitting them to remain in the presidency for the remainder of their term.

Floor:  “The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”  On its face, this rule is merely a floor on punishment.  For specified persons convicted of specified offenses, the Senate loses some of its flexibility over punishment.  The convict shall be removed from office. 

None of these eight rules provides an exhaustive list of persons subject to impeachment.  The President, Vice President and all U.S. civil officers at least are subject.  But the rules do not exclude others. 

None of the rules provides an exhaustive list of the grounds for impeachment.  Specified persons who commit specified offenses must be removed from office.  But there could be other grounds for impeachment, or other persons subject to impeachment, for which or for whom the Senate retains its discretion and only the cap, not the floor, applies.

None of the rules limits when Congress may impeach and convict.  Some people read too much into the floor; they infer from the punishment that the Senate can only convict someone who currently holds one of the specified offices.  But the rule merely provides a minimum punishment for those currently in office who commit certain offenses.  It says nothing about the ability to convict those who no longer hold office, nor about the punishments they face.  For any other rules or limitations on impeachment and conviction, one must look beyond the text, as one always does in constitutional interpretation.  It may be that the grounds for impeachment are limited to treason, bribery, and other high crimes and misdemeanors, and that former officeholders cannot be convicted.  But one must make the case on grounds other than the Constitution’s text.

Anita Krishnakumar on Tara Grove on Textualism
Michael Ramsey

At Jotwell, Anita Krishnakumar: The Multiple Faces of Textualism (discussing  Tara Leigh Grove, Which Textualism?, 134 Harv. L. Rev265 (2020)).  From the introduction:

In her wonderfully-titled article, Which Textualism?, Tara Leigh Grove uses the recently decided Bostock v. Clayton County case to highlight a truth about statutory interpretation theory that scholars have largely ignored: Textualism is not a monolithic interpretive approach, but one that contains multiple competing strands. This observation is long overdue, and Bostock is an excellent vehicle for exploring its implications, given that the three separate opinions issued by the Court all claimed to employ a textualist interpretive approach—while reaching different outcomes.

Which Textualism? begins by differentiating between what Grove calls “formalistic textualism,” on the one hand, and “flexible textualism,” on the other—and uses this frame to discuss “some real, but underappreciated, disputes among textualists” regarding the universe of interpretive tools and resources courts should avail themselves of when interpreting statutes. Specifically, Grove argues that “formalistic textualism” authorizes interpreters to apply only a “closed set” of normative canons, whereas “flexible textualism” allows interpreters to consult a much wider range of canons, such as the absurdity doctrine, that invite considerable judicial discretion.

In Bostock, Grove contends that Justice Gorsuch’s majority opinion exemplified “formalistic textualism” because it focused intently on the statutory term “because of sex” and what that term means in the context of sexual orientation-based discrimination. By contrast, Grove characterizes both Bostock dissenting opinions as engaging in “flexible textualism”—because the dissents relied on atextual considerations including public views about homosexuality in 1964, other statutes enacted after Title VII, and the “far-reaching” consequences of construing Title VII to cover discrimination based on sexual orientation.

01/15/2021

Additional Thoughts on Impeachment, Disqualification and Former Presidents
David Weisberg

With the recent posts of Michael Ramsey, Andrew Hyman, and Mike Rappaport in mind, here are four questions:      

(1)            Does the Constitution permit the Senate to try an ex-president on articles of impeachment?

(2)            Is question (1) a justiciable question?

(3)            If the Senate proceeds with a trial of the ex-president and convicts him, does the Constitution permit the Senate to render a judgement disqualifying him from serving again as president?

(4)            Is the question whether the Constitution permits the Senate to render a judgment that disqualifies an ex-president from serving again as president a justiciable question?

Counterintuitively, I’m first going to answer question (2), because that facilitates the exposition.  The rationale of Nixon v. US506 US 224 (1993), strongly suggests that question (1) is not justiciable, particularly in a case where judicial relief is sought before the Senate has convicted and rendered a judgment.  In a 9 to 0 decision, the Court in Nixon held that the claim asserted by petitioner (a former federal judge) that the procedure the Senate had followed in his trial was unconstitutional was nonjusticiable, because the language and structure of Art. I, Sec. 3, cl. 6 demonstrate a textual commitment of impeachment to the Senate, and also because of the difficulty of fashioning judicial relief.  If the Senate proceeds with a trial of the former president, I don’t believe the courts would presume to interfere. 

Regarding question (1), I agree with Andrew Hyman that the best answer is ‘no,’ because that is the most natural reading of the relevant provisions of the Constitution.  If there had been an intention to permit such a trial, it would have been easy enough to provide in Art. I, Sec. 2: “The House of Representatives…shall have the sole Power of Impeachment, which shall extend to Persons in Office and to Persons no longer in Office.” or words to that effect.

Prof. Ramsey cites Art. II, Sec. 4: “The President…shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes or Misdemeanors.”  He acknowledges that this text clearly refers only to incumbent presidents, but cautions that that might be so because the provision relates only to removal from office and “it does not directly say anything about impeachments leading to other penalties.” 

Prof. Ramsey quotes a very similar argument made by Michael Stokes Paulsen: “Impeachment is the exclusive method for removing a president from office but nothing in the constitutional text literally limits impeachment to present officeholders. Moreover, it would seem almost absurd to permit a miscreant officeholder to frustrate completely the possibility of receiving the constitutionally contemplated punishment of disqualification from future office by quickly submitting a pre-emptive resignation, hoping to launch a new bid for office in the future. The impeachment power thus arguably extends to former officeholders.”  Prof. Paulsen goes on to say: “But that argument is contestable.”

In the same vein, Prof. Rappaport writes that the “disqualification” clause “suggests a clear purpose why the Constitution would allow impeachments of former officials – preventing them from serving in the future.”   

I would respond to the idea that disqualification from future service provides a clear purpose for permitting former officials to be impeached in two ways.  First, if that were the framers’ purpose, one would expect Art. I, Sec. 3, cl. 7, to state: “Judgment…shall not extend further than to removal from Office, or disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States, or both: but the Party convicted….”  With the substitution of “or” for “and” and the addition of the words “or both,” that purpose would have been manifestly accomplished.  Instead, we find: “Judgment…shall not extend further than to removal from Office, and disqualification….”  The most natural, ordinary understanding here is that, when disqualification occurs, it always follows upon removal and never occurs without it.

The second point: Even if disqualification from future service suggests a clear purpose why former officials should be eligible for impeachment, I think all would agree that that does not identify from which offices a former official can properly be disqualified.  If, e.g., a former president may properly be disqualified from serving in the future as a federal judge, but not from serving again as president, that might substantially decrease the weight one would give to the idea that disqualification provides a clear purpose for impeaching former officeholders.         

This brings us directly to question (3).  There are two good reasons to answer that question in the negative.  First: Prof. Seth Barrett Tillman has undertaken extensive historical research supporting the conclusion that the presidency does not fall within the meaning of “any Office of honor, Trust or Profit under the United States[,]” as that phrase was understood when the Constitution was adopted.  If he is correct, a judgment of disqualification issued by the Senate would not bar anyone—whether a former or incumbent officeholder—from subsequently serving as president.

But, putting Tillman’s historical research aside, there is a ‘structural’ argument that provides another reason to answer ‘no’ to question (3).  If question (3) is answered affirmatively, that result is contrary to the specific grounds of ineligibility for the presidency set forth in Art. II, Sec. 1.  That provision makes ineligible any person who is not a natural born citizen, or who is not at least 35 years old, or who has not been a United States resident for 14 years.  Those three are the only grounds of ineligibility specified in the Constitution.

An affirmative answer to question (3) would in effect amend Art. II, Sec. 1, by adding the provision that any person who has been convicted by the Senate and disqualified from holding and enjoying “any Office of honor, Trust or Profit under the United States” is ineligible to be president.  I think this is an untenable position.  (This argument would extend to membership in the House of Representatives and the Senate, which would make the conclusions supported by the structural argument—that is, that the Senate lacks authority to disqualify anyone from seeking and holding an elective federal office—fully consistent with the results of Tillman’s historical research.)

In Powell v. McCormack395 US 486 (1969), the Court (in a 7 to 1 decision, with Chief Justice Earl Warren writing for the Court and Justice Potter Stewart dissenting only on mootness grounds, without reaching the merits) held that Adam Clayton Powell, Jr. had asserted a justiciable and meritorious claim that the House of Representatives had acted unconstitutionally in refusing to seat him—purportedly by exercising its authority under Art. I, Sec. 5, which makes each House “the Judge of the Elections, Returns and Qualifications of its own Members”—despite the uncontested fact that he met all the requirements set forth in Art. I, Sec. 2: He was at least 25 years old, he had been a citizen of the U.S. for at least 7 years and, when elected in N.Y., he was an inhabitant of N.Y.  If the House of Representatives may not deviate from eligibility requirements the Constitution establishes for the House’s own members, surely the vote of a majority of the Senate (the vote of only a majority would impose the penalty of disqualification after two-thirds have voted to convict, seeProcedure and Guidelines for Impeachment Trials) may not alter the eligibility requirements the Constitution establishes for the presidency. 

Powell also indicates that question (4) should be answered in the affirmative.  If Citizen Trump were to run for president in 2024, after purportedly being disqualified by the Senate, a lawsuit he might bring, e.g., to compel some State to permit him to compete in a primary election, would not in any way interfere with his impeachment trial, which would have concluded long before the lawsuit; I don’t think the Senate would even be a proper party.  Because the Senate would have finished the trial and issued its judgment, there could be no “potentially embarrassing confrontation between coordinate branches,” which Powell recognizes as a factor supporting non-justiciability.  Nor is determining the effect of a Senate verdict of disqualification something that a “textually demonstrable constitutional commitment” assigns to the Senate.  Whether the presidency is an “Office of honor, Trust or Profit under the United States” is a garden-variety question of constitutional interpretation to be answered by courts, not the Senate.

Gerard Magliocca: Amnesty and Section Three of the Fourteenth Amendment
Michael Ramsey

Gerard N. Magliocca (Indiana University Robert H. McKinney School of Law) has posted Amnesty and Section Three of the Fourteenth Amendment (67 pages) on SSRN.  Here is the abstract:

This Article is the first scholarly account of Section Three of the Fourteenth Amendment, which excluded many ex-Confederates from office unless a supermajority of Congress granted a waiver. Section Three was the first part of the Fourteenth Amendment applied by Congress--even before the Amendment was ratified. Section Three was the first part of the Fourteenth Amendment applied by the courts, with Chief Justice Chase's opinion in "Griffin's Case" setting the tone for future Fourteenth Amendment decisions that narrowed the text's scope. And Section Three was the part of the Amendment that received sustained attention in Congress when a broad amnesty was enacted in 1872 and Senator Charles Sumner tried (unsuccessful) to add a broad civil rights amendment to the amnesty bill.

The story of Section Three is a microcosm of the trajectory of the Fourteenth Amendment as a whole during Reconstruction. Radical aspirations were followed by judicial caution and vigorous enforcement by Congress, only to give way to exhaustion with the implacable anger of southern whites over the protests of the first Black Representatives in Congress. And in a final irony, the first man to claim the protection of Section Three (in 1868) was the last man to benefit from congressional relief under that provision (in 1978)--Jefferson Davis. Section Three is a constitutional failure that deserves closer scrutiny.

This article has gotten quite a lot of attention (over 2300 downloads) due to its possible implication that Section 3 of the Amendment might disqualify President Trump from office, the relevant language being: 

No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.

Noah Feldman explains at Bloomberg: Trump’s 2024 Hopes Just Crashed Into the 14th Amendment.

Does this provision to apply to Trump? The first part certainly does: Trump took an oath to uphold the Constitution when he became president.

The trickier question is the second part: Has Trump’s conduct amounted to insurrection? You can be sure that, if Trump runs for office in the future, someone will go to court charging that he is ineligible to become president because of his conduct leading up to, on and following Jan. 6, 2021.

Professor Feldman is a little skeptical (as am I):

That question is, assuming the march on the Capitol was an insurrection [ed.: I'm pretty sure he means, or should mean, the storming of the Capitol, as a march alone shouldn't be]: Did Trump himself engage in insurrection when he spoke to the crowd and encouraged or incited the march? If a court says yes, Trump isn’t eligible to be president again.

It’s worth noticing that the 14th Amendment does not use the word “sedition,” which is often employed to describe verbal acts that organize or plan an insurrection. That absence could be used by Trump or his lawyers to argue that even if the march on the Capitol was an insurrection, and even if Trump verbally helped bring it about, he was not himself “engaged” in insurrection for purposes of the 14th Amendment ban on holding office.

The counterargument would be that insurrection necessarily requires a level of verbal encouragement and planning — and that inciting a crowd to engage in insurrection is every bit as insurrectionary as rebelling oneself. If this is right, then the question becomes whether Trump actually incited insurrection.

A further suggestion I've seen elsewhere is that Congress, pursuant to its Section 5 power to enforce the Fourteenth Amendment, could declare Trump to have engaged in insurrection and thus to be disqualified under Section 3.  But that sounds a lot like a bill of attainder to me.

01/14/2021

Impeaching Former Presidents
Mike Rappaport

Since everybody seems to be discussing it, I thought I would also chime in on the impeachment of former Presidents question.  Here I assume the reader has read Mike Ramsey’s extremely helpful post.  Needless to say, but sadly very needful in our age, none of this speaks to the desirability of impeaching President Trump or any other former President.    

I had always assumed that former Presidents could be impeached, so perhaps this has influenced my view.  I think this is a hard question, but I continue to lean slightly in that direction.      

As Mike’s post makes clear, there is really no text that speaks clearly to the issue.  But I am very influenced by three considerations.  First, the history appears to be that both England and the early states allowed impeachment of former officials.  This suggests that the power of impeachment extended to former officials.  It is true that the Framers did not necessarily employ the English and early American model.  But to me it is significant that the Constitution departs from the English model in specific ways – most importantly, by limiting the punishments that result from impeachment to removal and disqualification from future office.  Thus, in other ways, it might  seem to follow the English model.   

Second, the provision limiting punishment “in Cases of Impeachment . . . to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States”  is also relevant in another way.  It suggests a clear purpose why the Constitution would allow impeachments of former officials – preventing them from serving in the future. 

Third, if disqualifying from future office was thought to be one purpose of impeachment, then it would defeat that purpose if a President could resign before being impeached, just to launch a new bid for the office in the future.

The strongest argument on the other side is supplied by Mike – the fact that the high crimes and misdemeanors standard is in Article II, section 4, which seems to apply only to sitting Presidents, since it only discusses removal.  (“The President . . . shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”)  This raises the question what is the standard for removing former Presidents.  If this provision does not apply, then the Constitution seems to leave the question unanswered.  As Mike says, “Perhaps, then, the lack of limitation on non-removal impeachments implies that ex-Presidents (and other ex-officers) can't be impeached, because it was assumed that impeachment convictions would always involve removal from office.  Otherwise, the framers would have put the high crimes and misdemeanors limit somewhere else, to cover non-removal impeachments.” 

One reaction to this argument is to say that it looks like an unintentional feature of the language – the Framers did not intend this result, but produced by oversight.  But I do not think that is good objection to the argument.  We often do not really know the reason for provisions, and if we are to be textualists, we have to take the language seriously.

There is, however, an element of the above objection that is appropriate.  If the Framers thought to prohibit the impeachment of former Presidents, this was a very indirect way of making the point.  Normally, one would expect a more direct statement.  Thus, I do not think Mike's textual argument is as strong as most other textual arguments. 

How, then, to reconcile these conflicting considerations?  I believe that one can find a way to derive the high crimes and misdemeanors standard from the constitutional text.  The explanation, looks to “the power of impeachment.”  If the Constitution did not mention the high crimes and misdemeanors standard at all, then one would have to look at English law to discover what the power of impeachment entailed as to this issue.  It is my understanding that one of the possible standards for impeachment under English law was “high crimes and misdemeanors,” but there were others.  The provision in Article II, section 4, referring to high crimes and misdemeanors, indicates the correct standard and so should apply to all impeachments.  But by itself it does not apply to the impeachment of former Presidents.  Instead, the standard comes from the power of impeachment, and that power is explicated by Article II, section 4.  

This argument is somewhat stronger than simply applying the high crimes and misdemeanors standard to former Presidents without any textual hook.  Instead, it is the combination of the power of impeachment and the reference in Article II, section 4 that does the work.  With this marginal improvement in the textual argument, I believe the considerations in favor of applying impeachment to former Presidents outweigh the considerations in favor of restricting it to sitting Presidents.

Shalev Roisman Reviews "The Living Presidency" by Saikrishna Prakash
Michael Ramsey

At Lawfare, Shalev Roisman (Arizona): The Originalist Presidency in Practice? (reviewing Saikrishna Bangalore Prakash's "The Living Presidency: An Originalist Argument Against Its Ever-Expanding Powers" (Harvard University Press 2020)).  From the introduction;

Saikrishna Prakash, the James Monroe Distinguished Professor of Law at the University of Virginia, has written a terrific book. In “The Living Presidency: An Originalist Argument Against Its Ever-Expanding Powers,” Prakash provides a wide-ranging and deeply researched account of the expansive understanding of presidential power today and how it compares to the Constitution’s original meaning. In brief, the comparison is not favorable—at least if one is looking for a close fit. As Prakash explains in detail, the modern president’s power has vastly expanded relative to the prevailing conceptions of the Founding era.

Prakash provides several case studies of this phenomenon, examining how the president’s power to use military force, to conduct foreign affairs, and to make policy on his own, rather than simply executing Congress’s, has grown over time. Prakash concludes the book with an interesting and inventive set of proposals to “recage” the president’s power, which are worth reading in full.

In this review, I focus less on whether the president’s power has expanded and more on Prakash’s story of how we got here. Why is it that the modern president’s power is so much more expansive than that of the Founding era? Prakash discusses developments in public expectations of the president and the corresponding shift in presidential behavior to meet such expectations. But his main focus centers on an interpretive methodology that, in his view, has enabled the expansion of presidential power. As the title suggests, Prakash pins most of the blame on what he calls “living constitutionalism.” Prakash uses the term broadly to include any form of interpretation that allows for “informal constitutional change” outside the Article V amendment process (see pp. 112-13, 130). Prakash’s main target, though, is the common interpretive practice of relying on historical branch practice in determining the constitutionality of presidential exercises of power.

And from later on:

Prakash clearly thinks originalism is a superior alternative—the book is subtitled “An Originalist Argument Against [the Living Presidency’s] Ever-Expanding Powers.” But, if the primary critique of the “Living Presidency” is how it has operated in practice to expand the scope of the president’s power, it seems important to ask whether originalism would operate any better in its stead. But the focus of Prakash’s important and erudite book is elsewhere. Prakash’s book operates largely as a comparison of how a rigorous and principled form of originalism (i.e., Prakash’s) compares to how the interpretive method of looking to past branch practice has fared in reality. It is thus largely a comparison of originalism in theory versus resort to past practice in practice. Largely left out of the picture is the more apples-to-apples comparison of how originalism in practice compares to resort to past practice in practice. It is this comparison that lingered with me after reading Prakash’s terrific book and the one I’ll explore in the remainder of this review.

In my view, this comparison is well worth making. If the major critique of “living constitutionalism” is how it has operated in practice to produce a more expansive, less originalist vision of presidential power, then it seems fruitful to ask whether potential alternatives would fare better in practice. After all, as noted above in relation to the historical gloss approach, resort to past practice in theory could result in much narrower views of presidential power than have resulted in reality. Comparing how these methods are likely to operate in the world seems important in assessing their relative strengths and weaknesses.

Admittedly, how originalism would fare in practice as compared to so-called “living constitutionalism” is largely a counterfactual question, so we’ll never really know the answer. But I confess that I have my doubts that originalism as practiced in the executive branch, at least, would necessarily fare better than what Prakash terms “living constitutionalism.” Below I flesh out two reasons for these doubts—the first, institutional, and the second, empirical (albeit anecdotal)....

01/13/2021

Jeremy Rozansky on Precedent and Burke
Michael Ramsey

At National Affairs, Jeremy Rozansky: Precedent and the Conservative Court. From the introduction: 

The [Supreme Court's] recent overrulings [of prior cases] have provided an opportunity for the justices to reason about the nature and authority of judicial precedent. To the nation's great benefit, several justices in the conservative majority have forthrightly described the conditions under which they would vote to overrule precedent. By publicly elaborating criteria for overruling past decisions, these justices have provided a way for the governed to hold them accountable to a neutral set of principles. They also offer some valuable clues as to which way the Court's new majority may be headed and the internal divisions that may characterize it. More important still, their discussions illuminate the role and the limits of judicial authority in our constitutional system.

And introducing the discussion of Burke:

A conservative looking to take sides in these debates has many proof-texts to choose from. The writings of The Federalist and the opinions of Chief Justice John Marshall and Justice Joseph Story may be especially relevant, since their discussion of the "judicial power" vested by the Constitution will have some legally binding force for the originalist. But frequently these debates also focus on the Anglo-Irish philosopher-statesman Edmund Burke, who may have some particularly useful insights to offer.

Before serving as a member of British Parliament, Burke studied law. He trained at Middle Temple, one of London's four Inns of Court, around the same time as John Dickinson, the conservative American founder and author of Letters from a Farmer in Pennsylvania. Burke is reputed to have called a legal education one that "sharpens the mind by narrowing it" and, despite his training, determined never to practice as a barrister. Yet the common law clearly left an impression on his thought. Indeed, if one takes a close look at many of the most quotable and essential passages in Burke's writings, one usually finds a metaphor from the English common law of trusts, agency, or property.

Because of these passages, modern legal scholars routinely look to Burke as a kind of theorist of precedent — a conservative who prefers stare decisis to original meaning. As luminaries like David Strauss, Cass Sunstein, Thomas Merrill, and Ernest Young have described it, Burkeanism begins from a perception of the limits of individual reason. Strauss summarizes the Burkean's beginning proposition as the acknowledgement that "no single individual or group of individuals should think that they are so much more able than previous generations." Instead, it advises we look to traditions and other multigenerational institutions that aggregate both the insights of many limited minds and the knowledge gained through centuries of trial and error — what Burke called the "general bank and capital of nations and of ages" — which are presumed wiser than any individual's reasoning.

...

Chief Justice Roberts explicitly took up this conventional view of Burke at the end of the Supreme Court's most recent term. In June Medical, he cited Burke for the proposition that judges should adopt "a basic humility that recognizes today's legal issues are often not so different from the questions of yesterday and that we are not the first ones to try to answer them." Ironically, Roberts was defending his reliance on a precedent that was merely four years old. Nearly all the current justices had been the first to try and answer the question posed in that case, a point Justice Thomas made with his own quote of Burke. As Thomas put it, a true Burkean respects not just any prior decision, but only those decisions old enough to be revered as an inheritance. Yet Thomas did not ultimately disagree with the conventional view of Burke as an expositor of the wisdom of precedent; he merely rejected the idea that Burke would presume wisdom from a four-year-old decision.

There is certainly some truth to the conventional view of Burke. In Reflections on the Revolution in France, Burke praised the common-law "science of jurisprudence" as "the pride of the human intellect" and "the collected reason of the ages." Yet this picture of his thought is fundamentally incomplete....

Via Ed Whelan at NRO Bench Memos, who comments;

By Rozansky’s account, a “basic mistake the conventional view of Burkean jurisprudence makes is to think of judicial precedent as law” rather only as evidence of what the law is. (The same mistake is routinely made by those who refer to Supreme Court decisions as “constitutional law”—a bad practice reinforced by decades of legal miseducation.) Burke “believed a precedent should be followed only if it can prove itself to be good evidence of the law” (my emphasis), and he “is therefore even less friendly to precedent as such than is Justice Thomas.”

Burkean jurisprudence allows a Supreme Court justice to consider “a whole host of prudential factors” in deciding whether to grant review of a case. But “[w]hen the question of overruling is squarely presented to the Court, Burke offers the justices no justification for upholding an erroneous precedent.”

01/12/2021

Impeachment and Silver Blaze
Andrew Hyman

Arthur Conan Doyle wrote a short story in 1892 titled “The Adventure of Silver Blaze” about the disappearance of a racehorse and the murder of the horse’s trainer.  It's not quite incitement to insurrection, but still very relevant to current events.  The story is most remembered for this dialogue....

Detective Gregory of Scotland Yard: “Is there any other point to which you would wish to draw my attention?”

Sherlock Holmes: “To the curious incident of the dog in the night-time.”

Detective Gregory of Scotland Yard: “The dog did nothing in the night-time.”

Sherlock Holmes: “That was the curious incident.”

The Constitution says a lot about impeaching incumbent office holders, but is totally silent about impeaching other people.  That silence is very curious indeed. It seems like an indication that impeachment is only for incumbents.  People who believe impeachment is not just for incumbents ought to describe just how many paragraphs of the Constitution would have to be exclusively devoted to impeaching incumbents, in order to deliver the message that impeaching non-incumbents was not intended.

To get around this conclusion, some people point to the rare situation where an impeached official leaves office before the final vote in the Senate.  Actually, that has happened, and the Senate trials of William Blount and William Belknap are briefly described in this excellent Washington Post piece from 2019 (emphasis added):

The House impeached Sen. William Blount of Tennessee in 1797 on treason charges related to land speculation, and the Senate quickly expelled him. Senators held an impeachment trial after expelling Blount, but later acquitted him.  President Ulysses S. Grant’s secretary of war, William Belknap, resigned shortly before being impeached by the House for bribery. The Senate nevertheless heard from more than 40 witnesses in his 1876 trial, “as House managers argued that Belknap should not be allowed to escape from justice simply by resigning his office,” according to the Senate Historical Office.  Neither precedent really settles the question ... [Frank O. Bowman III of the University of Missouri School of Law] said. The Constitution requires a two-thirds Senate majority to convict an official on impeachment charges, but can a simple majority set a working precedent?  “The tricky thing about Belknap is that there are actually two votes at the end of the trial, and one of them was a vote on whether the Senate had jurisdiction in light of the fact that he resigned, and the Senate voted that it did have jurisdiction,” Bowman said. “They voted 37-29 that they had jurisdiction. But on the other hand, then they voted 35-25 for conviction, but that didn’t meet the two-thirds threshold, and one conventional interpretation of that is that many of the senators who voted for acquittal concluded that they lacked jurisdiction. … What does it mean constitutionally? I don’t know.”

I know.  It means the general rule is that impeachment by the House and trial by the Senate are for incumbents only, but there may well be a narrowly limited exception that lasts throughout the normal term of office for a person who leaves office early.  Assuming President Trump is guilty of a high crime or misdemeanor but does not resign, then the House and Senate are perfectly free to amend their rules so as to quickly impeach and convict him before his term ends, but if they are too slow then they cannot.  

If the Senate tries to create a bigger exception than the one in the Blount and Belknap trials, then we would all be in danger of impeachment to prevent us from ever holding office.  That would go far beyond Hamilton's cautionary words in Federalist 65 that the subject of impeachment is "the misconduct of public men, or, in other words, from the abuse or violation of some public trust."  It would be no less of a disaster for public officials to be subject to impeachment decades after they leave office.

I'm not a fan of manufacturing exceptions to the Constitution years, decades, or even centuries after it was written.  In this situation though, I think there's a reasonable argument that the exception was baked into the original document.  For instance, the Constitution says about the President, "He shall hold his Office during the Term of four Years." Taken literally, this would bar resigning like Richard Nixon did, but everyone knows as a matter of common sense that it does not mean that (Article II elsewhere discusses “Removal of the President from Office, or of his Death, Resignation, or Inability...”).   Given that fuzziness about resignation, it is plausible to infer that a President who resigns his office (or otherwise leaves office early) cannot resign from the possibility of being impeached and convicted during the remainder of his term.  If I am mistaken about the effect of resignation (i.e. I am wrong that both the Blount and Belknap trials were constitutional), then impeachment by the House and conviction by the Senate would all have to happen before the president leaves office, or not at all.

FURTHER NOTE BY ANDREW: Blount was a member of Congress, and it may well be that members of Congress are not subject to impeachment.  That was a primary reason why he was acquitted by the Senate.  If indeed members of Congress are not subject to impeachment, then that would strongly support the idea that non-incumbents are not subject to impeachment either, because the rationale is the same: the Constitution is silent about impeaching them.

MICHAEL RAMSEY ADDS: Former Court of Appeals Judge (and Scalia clerk) Michael Luttig has an op-ed in the Washington Post arguing that impeaching or trying a former President is unconstitutional.  It's behind a paywall, but Byron York at the Washington Examiner  quotes Judge Luttig on the matter:

"The crux of my argument is that the very purpose of the impeachment power is to remove an incumbent official," Luttig said. "That seems to me to be crystal clear and inescapably true under the text of the Constitution itself."  

Also , the National Constitution Center has a good balanced analysis by Scott Bomboy.  Here's his description of the Blount precedent that Andrew mentions, which is the only one (that I'm aware of) close enough to the framing to matter to originalists: 

Jared Ingersoll, a signer of the Constitution, was one of the attorneys representing Blount at the trial. Ingersoll argued a senator was not a “civil officer” subject to impeachment, unlike the President and other officials. Representative James A. Bayard of Delaware, the House’s lead manager, replied that the considerations for the Northwest Ordinance of 1787 and the Constitution’s plain language made it clear that senators were civil officers subject to impeachment.

Rep. Bayard and Alexander James Dallas, Blount’s other attorney, debated that secondary question. Bayard believed a civil officer could not escape impeachment through resignation. “The party, by resignation or the commission of some offense which merited and occasioned his expulsion, might secure his impunity. This is against one of the sagest maxims of the law, which does not allow a man to derive a benefit from his own wrong.”

Dallas conceded that argument, but then said Blount had been expelled by the Senate, which was a different matter. “I certainly shall never contend that an officer may first commit an offense and afterwards avoid punishment by resigning his office; but the defendant has been expelled. Can he be removed at one trial and disqualified at another for the same offense?”

In the end, the Senate voted 14 to 11 on January 11, 1799, to dismiss a motion that “William Blount was a civil officer of the United States within the meaning of the Constitution.” It then passed another resolution by a vote of 14–11: “The court is of opinion that the matter alleged in the plea of the defendant is sufficient in law to show that this court ought not to hold jurisdiction of the said impeachment, and that the said impeachment is dismissed.” Many scholars see this as evidence a senator cannot be impeached, and expulsion by a two-thirds vote is instead the proper remedy, but that was not conclusively stated by the Senate.

01/11/2021

Can an Ex-President Be Impeached?
Michael Ramsey

My first intuition was "no" based on the common paraphrase of the Constitution as saying that the President can be impeached for high crimes and misdemeanors; an ex-President is not a President.  But that's not what the Constitution says.  Here are the relevant clauses:

Art. 1, Sec. 2:  "The House of Representatives ... shall have the sole Power of Impeachment."  This text on its face does not limit the impeachment power to sitting Presidents.

Art, II, Sec. 4: "The President ... shall be removed from office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors."  This text is limited to "The President," excluding ex-Presidents - of course, because it relates to removal from office.  But it does not directly say anything about impeachments leading to other penalties.

Art. I, Sec. 3, para. 5:  "The Senate shall have the sole Power to try all Impeachments."  No limit here.

Art. I, Sec. 3, para. 6:  Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust, or Profit under the United States."  This text seems ambiguous.  Perhaps it means that the judgment can include only removal from office plus future disqualification, implying that impeachment is only appropriate where the person can be removed from office.  And obviously holding an office is a prerequisite to being removed.  Read this way, it means no impeachments of ex-Presidents.  But maybe the "and" in the text is actually partly disjunctive: the judgment can include removal from office and/or future disqualification.  In that case, impeachment of ex-Presidents is fine.

There's a bigger textual puzzle lurking, however.  If ex-office holders can be impeached, what can they be impeached for?  The immediate response is: high crimes and misdemeanors, of course.  But no so fast.  That limit comes from Article II, Section 4.  And Article II, Section 4 only relates to removal from office (see above).  If Congress can impeach people without removing them from office (because they are ex-officers), there doesn't seem to be any textual limit on the grounds for such impeachments.

That seems an implausible result.  Perhaps, then, the lack of limitation on non-removal impeachments implies that ex-Presidents (and other ex-officers) can't be impeached, because it was assumed that impeachment convictions would always involve removal from office.  Otherwise, the framers would have put the high crimes and misdemeanors limit somewhere else, to cover non-removal impeachments.  So on this reasoning, my initial intuition is correct (but it's a harder argument).

That's also a lot to squeeze out of the text.  Originalist materials might help confirm or reject it.  I'm not aware of any discussion of this point (or practice) around the time of the founding (though there may have been some).  Background assumptions might also be an important part of an originalist analysis.  English practice included impeachment of former officers (see this article by Brian Kalt), which could suggest that the Framers assumed impeachment under the Constitution also included such a procedure.  But even that is not assured: the English system might well have included impeachment of ex-officers because it contemplated more serious punishments (including execution!).  The framers deliberately cut back on that English practice in Article I, Sec. 3, para, 6 (limiting penalties to removal and disqualification).  So maybe they cut back on other English impeachment practices too.

In sum, this seems like a hard question.  Glad I don't have to answer it.

RELATED:  At The Bulwark, originalist impeachment scholar Michael Stokes Paulsen touches on this issue in The Constitutional and Moral Imperative of Immediate Impeachment:

There is a fair argument that the Constitution would permit impeachment, conviction and disqualification from future office even of a former president, in order to impose the punishment of disqualification. Impeachment is the exclusive method for removing a president from office but nothing in the constitutional text literally limits impeachment to present officeholders. Moreover, it would seem almost absurd to permit a miscreant officeholder to frustrate completely the possibility of receiving the constitutionally contemplated punishment of disqualification from future office by quickly submitting a pre-emptive resignation, hoping to launch a new bid for office in the future. The impeachment power thus arguably extends to former officeholders. [He goes on to say "But that argument is contestable" and calls for a quick impeachment/trial instead.] 

I largely agree with his textual point, per the discussion above.  His policy argument cloaked as an absurdity argument works less well.  Maybe the framers thought impeachment of former officers would be necessary to prevent preemptive resignations, but maybe they thought a resignation would largely accomplish the main desired result.

Also, the post assumes that the presidency is an "Office of honor, Trust, or Profit under the United States," but is it?  See here from Seth Barrett Tillman.

A FINAL POINT: Textually, if an ex-President is tried in the Senate, the Chief Justice does not preside.  Per Article I, Sec. 3, para. 5, the Chief Justice presides only "when the President of the United States is tried."  The ex-President is not the President.

UPDATE:  At the Epoch Times, Alan Dershowitz says ex-Presidents can't be impeached (via Instapundit). But I did not feel like signing in to find out why.

At Volokh Conspiracy, Ilya Somin takes the opposite view.

01/10/2021

Federalist Society Panel: Originalism and Its Discontents
Michael Ramsey

The Federalist Society has posted videos of its 23rd Annual Faculty Conference (Jan. 6-8), including this panel: Originalism and Its Discontents (featuring Randy Barnett (Georgetown), Marc DeGirolami (St. John's), Joshua Kleinfeld (Northwestern), Jesse Merriam (Patrick Henry College) and Christina Mulligan (Brooklyn), with John McGinnis moderating.

Also of originalist interest: A debate between Michael McConnell (Stanford) and Eugene Volokh (UCLA) on the topic: Resolved: Employment Division v. Smith Should be Overruled (Richard Garnett moderating).

01/09/2021

Mark Mancini on Textualism and Purposivism in Canada
Michael Ramsey

At Double Aspect, Mark Mancini: The Top Statutory Interpretation Cases of 2020.  From the introduction:

To say that one believes in “purposive interpretation” has been the calling card of Canadian legal scholars for some time. Saying this, as some do, is radically incomplete. That is because competing schools of thought also look to purpose. Textualists, for example, look to the context in which words are used, as well as the purpose evident in those words (Scalia & Garner, at 20). To say that one is a purposivist might as well mean nothing, because everyone—even textualists—“routinely take[] purpose into account…” (Scalia & Garner, at 20).

Far from just being a lazy turn of phrase, though, the routine deployment of the term “purposivism” as a distinct school of thought blocks us from a clearer conversation about what should matter in statutory interpretation. For example, the real division between textualists and others is how purpose is sourced in statutory interpretation: textualists are wary of importing some abstract purpose to subvert a “close reading” of the text (see Scalia & Garner, at 20; see also the opinion of Côté Jin West Fraser), while others might source purpose differently. Saying that one is a “purposivist” also does not answer an important question: which purpose should count more in interpretation, since statutes often pursue multiple purposes at different levels of abstraction? (see, for an example of this, Rafilovich). These are real interpretive questions that are only now receiving any sort of sustained attention in the case law.

I should not hide my priors here. I too think that purpose is a relevant consideration in statutory interpretation, because it assists in the task of reading text to mean all it fairly encompasses. But purpose can be abused: indeed, “[t]he most destructive (and most alluring) feature of purposivism is its manipulability” (Scalia & Garner, 20). Because purposes can be stated in all sorts of ways, it is up to the judge, in many cases, to choose the most appropriate purpose to assist in interpreting the text. Sometimes, purpose can subvert text—which, of course, is problematic if the purpose is not sourced in text (McLachlin CJC’s opinion in West Fraser is a classic example of this).  Put simply: purpose informs text, it does not supplant it (Placer Dome, at para 23).

For that reason, we must come to sound and principled ways of sourcing purpose, rather than simply stating that we look to purpose. It is this theme that defined, in my view, the task for judicial interpreters in 2020. The following three cases are, to my mind, exemplars of dealing with some of these deeper questions in statutory interpretation. Rather than simply reciting the Rizzo & Rizzo formula and taking an “anything goes” approach to interpretation, these cases delve deeper and answer some knotty interpretive questions in a way that furthers a discussion about statutory interpretation in Canada—particularly with reference to the so-called “purposive” approach. Because these cases start a conversation on these issues (and because I happen to agree with the methodology employed by the judges writing the lead opinions in each case), these are the top statutory interpretation cases of 2020, in no particular order ...

01/07/2021

The Year in Review: Originalism Articles of 2020 (Part 3)
Michael Ramsey

My final post in this series is entirely subjective: I picked 16 originalist-oriented articles from 2020 (that weren't on my other 2 lists), that were featured on the Originalism Blog, and that I thought were especially interesting.  But probably I forgot some.  Here they are:

Christine Kexel Chabot (Loyola Chicago), The Lost History of Delegation at the Founding 

Travis Crum (Chicago), The Superfluous Fifteenth Amendment?

William Eskridge (Yale), Brian Slocum (McGeorge) and Stefan Gries (UC Santa Barbara - Linguistics), The Meaning of Sex: Dynamic Words, Novel Applications, and Original Public Meaning

Jeffrey Goldsworthy (Monash), Legislative Intentions in Antonin Scalia’s and Bryan Garner’s Textualism 

Mark Graber (Maryland), Original Expectations 

Gregory Maggs (George Washington), A Guide and Index for Finding Evidence of The Original Meaning of The U.S. Constitution in Early State Constitutions and Declarations of Rights 

Jennifer Mascott (George Mason), Early Customs Laws and Delegation 

James Macleod (Brooklyn), Finding Original Public Meanings

Mark Moller (DePaul) and Lawrence Solum (Georgetown [now Virginia]), Corporations and the Original Meaning of “Citizens” in Article III

Caleb Nelson (Virginia), Vested Rights, "Franchises," and the Separation of Powers 

Farah Peterson (Chicago),  Expounding the Constitution 

James Phillips (Chapman) and John Yoo (Berkeley), You're Fired: The Original Meaning of Presidential Impeachment 

Zachary Price (Hastings), Congressional Authority Over Military Offices 

Scott Soames (USC - Philosophy), To What Should Originalists be Faithful

John F. Stinneford (Florida), Is Solitary Confinement a Punishment?

Kevin Tobia (Georgetown) and John Mikhail (Georgetown), Two Types of Empirical Textualism

01/06/2021

The Year in Review: Originalism Articles of 2020 (Part 2) - the "Top 25"?
Michael Ramsey

For this list, I tried for a (sort of) objective measure.  These are the twenty-five most downloaded originalism-oriented new papers on SSRN for 2020.  I defined the category "originalism-oriented" as papers that have the terms "originalism," "originalist," "textualism," or "textualist" in the title, abstract or keywords on SSRN.  "New" papers are those posted in the last year.  Then I cross-checked the list against papers featured on the Originalism Blog and added a few highly downloaded papers from 2020 that didn't use the magic words in the title, abstract or keywords but are obviously originalism-oriented.

Of course this measure has substantial limitations, including that it favors papers posted early in the year; that not all important papers are posted on SSRN; and that number of downloads does not really prove anything about a paper except, well, how many times it was downloaded.  But with those caveats, here's the list:

1.  Julian Davis Mortenson (Michigan) and Nicholas Bagley (Michigan), Delegation at the Founding

2.  Orin Kerr (Berkeley), Decryption Originalism: The Lessons of Burr 

3.  Cass Sunstein (Harvard), Textualism and the Duck-Rabbit Illusion

4.  Tara Leigh Grove (Alabama), Which Textualism?

5.  Ilan Wurman (Arizona State), Nondelegation at the Founding 

6.  Stephanie Barclay (BYU [now Notre Dame]), The Historical Origins of Judicial Religious Exemptions 

7.  Jack Balkin (Yale), Lawyers and Historians Argue About the Constitution 

8.  William Baude (Chicago), Precedent and Discretion

9.  Neil Buchanan (Florida) and Michael Dorf (Cornell), A Tale of Two Formalisms: How Law and Economics Mirrors Originalism and Textualism

10.  Michael Morley (Florida State), The Independent State Legislature Doctrine, Federal Elections, and State Constitutions

11.  Andrew Koppelman (Northwestern), Why Do (Some) Originalists Hate America?

12.  Jed Shugerman (Fordham), The Indecisions of 1789: Strategic Ambiguity and the Imaginary Unitary Executive (Part I) 

13.  Nicholas Parrillo (Yale), A Critical Assessment of the Originalist Case Against Administrative Regulatory Power: New Evidence from the Federal Tax on Private Real Estate in the 1790s

14.  Nelson Lund (George Mason), Unleashed and Unbound: Living Textualism in Bostock v. Clayton County

15.  Aaron Tang (Davis), Harm-Avoider Constitutionalism

16.  Michael Ramsey (San Diego), Originalism and Birthright Citizenship 

17.  Aaron Gordon (Yale JD ‘20), A Rebuttal to 'Delegation at the Founding'

18.  Stephen Griffin (Tulane), Optimistic Originalism and the Reconstruction Amendments 

19.  Josh Blackman (South Texas), Presidential Subpoenas during the Burr Trials

20.  Stephen Sachs (Duke), The Unlimited Jurisdiction of the Federal Courts

21.  Evan Bernick (Georgetown), Antisubjugation and the Equal Protection of the Laws 

22.  Andrew Koppelman (Northwestern), Bostock, LGBT Discrimination, and the Subtractive Moves

23.  Schlomo Klapper (Yale, students), Soren Schmidt (independent) and Tor Tarantola (Cambridge – Psychology), Ordinary Meaning from Ordinary People

24.  Samuel Bray (Notre Dame) and Paul Miller (Notre Dame), Against Fiduciary Constitutionalism 

25.  Michael Rappaport (San Diego), A Two Tiered and Categorical Approach to the Nondelegation Doctrine

Let me known of ones I've overlooked.  In my next and final post in this series, I'll highlight some papers that didn't make this list but seemed to me to be especially important.

01/05/2021

Kurt Lash: The 1791 Amendments as the 'Bill of Rights'
Michael Ramsey

Kurt T. Lash (University of Richmond School of Law) has posted The 1791 Amendments as the 'Bill of Rights,' Founding to Reconstruction (A Response to Revisionists) (94 pages) on SSRN.  Here is the abstract:

Unlike the “Declaration of Rights” annexed to many state constitutions, the ten amendments added to the federal Constitution in 1791 have no formal title at all. It is only by cultural tradition that Americans refer to these provisions as our national “Bill of Rights.” Until recently, most scholars assumed that this tradition could be traced back to the moment of ratification. Over the last decade or so, however, a number of scholars have challenged this assumption. These “Bill of Rights revisionists” claim that Americans did not commonly refer to the first ten amendments as “the bill of rights” until the twentieth century. Prior to that, most Americans either did not believe they had a national bill of rights or they would have more likely pointed to the Declaration of Independence as the country’s “bill of rights” than to the 1791 amendments. If the revisionists are right, then a substantial portion of constitutional historical scholarship is shot through with historical error, in particular scholarship supporting the incorporation of the Bill of Rights as part of the Fourteenth Amendment.

This essay examines the historical record in order to determine whether the claims of the Bill of Rights revisionists are correct. It presents the results of an exhaustive investigation of political, legal and cultural references to the “bill of rights” from the time of the Founding to Reconstruction (and beyond). These references, most of which are presented here for the first time, suggest that the revisionist claims about the ten amendments are false. Long before the twentieth century, and decades before Reconstruction, Americans commonly referred to the first ten constitutional amendments as “the Bill of Rights.” Moreover, references to the 1791 amendments as the national bill of rights vastly outnumber historical references to the Declaration of Independence as a “bill of rights,” and indicate that nineteenth century Americans were not at all confused about the meaning and content of their national “Bill of Rights.” If any “revision” is in order, it is the need to (1) revisit and revise our understanding of the original theoretical role played by the Bill of Rights at the time of the Founding and (2) recognize the remarkably broad coalition of Americans who, by the time of Reconstruction and the Fourteenth Amendment, embraced an altogether different theory of the 1791 amendments.

01/04/2021

Does Laurence Tribe Still Think the Vice President Cannot Break Appointments Ties in the Senate?
Michael Ramsey

On the eve of the Georgia Senate election that could result in an evenly divided Senate, here's a reminder that one of the nation's leading constitutional law scholars thinks that the Vice President cannot break tie votes in the Senate on appointments,  From the Boston Globe back in September 2020, Laurence Tribe (Harvard): No hiding behind Pence’s skirt on the Supreme Court nomination -- The vice president doesn’t have the power to break a tie on the appointment.  He argued:

While the vice president has the power to cast a tiebreaking vote to pass a bill, the Constitution does not give him the power to break ties when it comes to the Senate’s “Advice and Consent” role in approving presidential appointments to the Supreme Court.

You don’t have to take my word for it. Alexander Hamilton said the same thing way back in 1788, in Federalist No. 69: “In the national government, if the Senate should be divided, no appointment could be made.” ...

Consistent with Hamilton’s understanding, as two thoughtful recent scholarly analyses have pointed out, no vice president in our history has ever cast a tiebreaking vote to confirm an appointment to the Supreme Court. If Pence tried to cast the deciding vote to confirm Trump’s nomination to replace Justice Ruth Bader Ginsburg, who died last week at age 87, it would be the first time that has ever happened. 

And further:

Hamilton’s view and the historical practice (up until this administration) is confirmed by the structure and drafting history of our Constitution. As a structural matter, the provision granting the vice president the power to break ties in the Senate is located in Article I, which addresses Legislative Power. By contrast, the Senate’s “Advice and Consent” power over judicial appointments appears in Article II, making it a form of power wielded by the Senate that is executive, not legislative, in nature. The vice president has some power to influence legislation, by casting a tiebreaking vote in the Senate, while the Senate has some power to influence executive appointments, by granting or withholding consent. Structurally, the vice president cannot smuggle his Article I legislative tiebreaking power into Article II to undermine the Senate’s unique Article II executive power of advice and consent.

Originalism Blog bloggers were not persuaded.  Andrew Hyman and I expressed skepticism here, David Weisberg here, and Mike Rappaport here (calling it a "peculiar argument").  And here is further skepticism from leading originalism scholar John McGinnis.

But I hope Professor Tribe persists with his argument (if nothing else, to show it wasn't just a political convenience at the time).  If the Senate does end up evenly divided on an appointment and the Vice President purports to break the tie, a court challenge should be fairly straightforward.  

Also I'm confident originalists will stick with their initial doubts.  To restate my conclusion:

Article I, Section 3 says that the Vice President, as President of the Senate, "shall have no Vote, unless they [the Senators] be equally divided."  It does not say that the Vice President has this voting power only as to Article I matters.  Rather, the Vice President has this voting power  whenever the Senators are equally divided.  Article I, Section 3 is about how the Senate operates -- not just as to powers in Article I, but generally.  Professor Tribe's contrary arguments aren't nothing (from an originalist perspective), but they aren't enough.

Still true.

01/03/2021

The Year in Review: Originalism Articles of 2020 (Part 1)
Michael Ramsey

Continuing my 2020 retrospective (see here for the first post), I turn to originalism-oriented articles featured on the blog in the past year.  I plan to highlight some of the most important articles (in my view), but to avoid conflicts of interest, I'll first note articles from my Originalism Blog and USD Originalism Center colleagues (and me).  Here are ten:

Larry Alexander (San Diego), Connecting the Rule of Recognition and Intentionalist Interpretation: An Essay in Honor of Richard Kay (Connecticut Law Review 2020) 

Laurence Claus (San Diego), Separation, Enumeration, and the Implied Bill of Rights (Journal of Law and Politics, forthcoming)

Laurence Claus (San Diego), Authority and Meaning (Connecticut Law Review 2020)

Christopher Green (Mississippi), Tribes, Nations, States: Our Three Commerce Powers 

Michael Rappaport (San Diego), A Two Tiered and Categorical Approach to the Nondelegation Doctrine

Michael Ramsey (San Diego), Originalism and Birthright Citizenship (Georgetown Law Journal 2020)

Michael Ramsey (San Diego), Courts and Foreign Affairs: 'Their Historic Role' (Constitutional Commentary 2020)

Steven D. Smith (San Diego), Why School Prayer Matters

John Vlahoplus (independent), Bound Electors (Virginia Law Review Online 2020)

John Vlahoplus (independent), Textualism and Title VII (Wake Forest Law Review Online 2020)

01/02/2021

The Year in Review: Originalism Books of 2020
Michael Ramsey

As a 2020 retrospective, here are some of the year's leading originalism-oriented books (as featured on this blog):

Wendell Bird (Emory): The Revolution in Freedoms of Press and Speech: From Blackstone to the First Amendment and Fox's Libel Act (Oxford University Press 2020)

Michael McConnell (Stanford), The President Who Would Not Be King: Executive Power under the Constitution (Princeton University Press 2020)

Saikrishna Prakash (Virginia), The Living Presidency: An Originalist Argument against Its Ever-Expanding Powers (Belknap Press 2020)

Edward Purcell (New York Law School),  Antonin Scalia and American Constitutionalism: The Historical Significance of a Judicial Icon (Oxford University Press 2020)

Jack Rakove (Stanford), Beyond Belief, Beyond Conscience: The Radical Significance of the Free Exercise of Religion (Oxford University Press 2020)

Jack Rakove (Stanford) & Colleen Sheehan (Villanova), eds., The Cambridge Companion to The Federalist (Cambridge University Press 2020)

Gary Schmitt (AEI) & Rebecca Burgess (AEI), eds., McCulloch v. Maryland at 200: Debating John Marshall’s Jurisprudence (AEI Press 2020)  

Jeffrey Sutton (U.S. Court of Appeals for the Sixth Circuit) & Edward Whelan (Ethics and Public Policy Center), eds., The Essential Scalia: On the Constitution, the Courts, and the Rule of Law  (Crown Forum 2020)

Ilan Wurman (Arizona State), The Second Founding: An Introduction to the Fourteenth Amendment (Cambridge University Press 2020)

Yes, I know there are only nine, so it's not yet a top ten list.  But I'm sure I've missed more than one.  I invite reader nominations for the 10th slot.

01/01/2021

Shipwrecks and National Monuments and Corpus Linguistics
Andrew Hyman

This is a brief comment about a recent blog post: A Response to David Weisberg on Corpus Linguistics by James Cleith Phillips.  The question is whether the Antiquities Act of 1906 authorizes monuments to be established if they are situated upon  the sea floor.  It says:

Sec 2. That the President of the United States is hereby authorized, in his discretion, to declare by public proclamation historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest that are situated upon the lands owned or controlled by the Government of the United States to be national monuments, and may reserve as a part thereof parcels of land, the limits of which in all cases shall be confined to the smallest area compatible with proper care and management of the objects to be protected.

Using Advanced Google Books to do a search, I find this phrase about oyster farming, in the Maryland Code published 1906: “parcels of land beneath the waters.”  This seems like evidence that the word “lands” in the Antiquities Act is broad enough to cover the sea floor.  Not conclusive evidence, but good evidence.   It’s not what first springs to mind when one hears the phrase “parcels of land,” but it doesn’t seem like a misuse of that phrase either.  Actually, under the circumstances of oyster farming, it seems like the best possible phrasing.  Does corpus linguistics really require an opposite conclusion?  Maybe it all depends upon how corpus linguistics is used (or misused).  If a World War II shipwreck is lying on a piece of the ocean floor owned by the U.S. Government, then I’d be inclined to say that it can be turned into a national monument.  Why not?  Also, Happy New Year from all of us regular bloggers at the Originalism Blog!

MICHAEL RAMSEY ADDS:  I agree, especially with the last sentence!

12/30/2020

Matthew Franck on "McCulloch v. Maryland at 200"
Michael Ramsey

At Law & Liberty, Matthew Franck: Why McCulloch Is Blamed or Praised But Rarely Understood (reviewing McCulloch v. Maryland at 200: Debating John Marshall’s Jurisprudence (Gary Schmitt & Rebecca Burgess, eds., AEI Press, 2020)).  From the introduction: 

In any compilation of the greatest judicial opinions by the Great Chief Justice, John Marshall, McCulloch v. Maryland (1819) is bound to be mentioned, however short the list. Some scholars regard it as even more significant than Marbury v. Madison (1803), in which Marshall expounded on the power we now call judicial review. One thing the opinions have in common, unfortunately, is that both are widely misunderstood today. Marbury is commonly taught as though it stood for the puffed-up pretensions of judicial supremacy that attained the status of gospel truth among judges, lawyers, and law professors in the last century. And McCulloch is blamed or praised, depending on the political preferences of commentators, for allegedly writing a permission slip for Congress to do nearly anything it pleases under the rubric of “implied powers” authorized by the “necessary and proper” clause. But was that either the purpose or the effect of the Marshall Court’s decision in the case?

...

For two centuries, then, McCulloch has been a lightning rod of controversy. It was fitting therefore that the American Enterprise Institute should sponsor a conference on the bicentennial of the case, resulting in the present volume edited by Gary J. Schmitt and Rebecca Burgess.

And in conclusion:

As I have indicated above, the contributions of Christopher Wolfe and Adam White are the high points of this collection. Wolfe, long one of our best Marshall scholars, has the rare capacity to see Marshall’s jurisprudence as the chief justice himself saw it—as animated by a devotion to principle and an aversion to judicial aggrandizement. White’s contribution is a thoughtful consideration of what Marshall can teach us about the meaning of “judicial statesmanship.” Since in part he takes issue with an article of mine from three decades ago, I will take this opportunity to say that he seems quite ready to condemn judicial statesmanship as I described it, and I am quite ready to embrace judicial statesmanship as he describes it. And as he describes McCulloch—as a case in which a statesmanlike Marshall exercised restraint, declining to endorse a broad agenda of nationalism in American politics—I am quite happy to say amen. Twentieth-century “big government” will have to look elsewhere than Marshall’s great decision to find its constitutional justification.

Here is a list of contributors and their chapters:

Nelson Lund, The Destructive Legacy of McCulloch v. Maryland

Michael Zuckert, The Sound of the Third Hand Clapping: James Madison's Reading of the Necessary and Proper Clause

Christopher Wolfe: McCulloch v. Maryland and John Marhsall's Constitutional Interpretation

Robert Webking: "A Friend of the Constitution": John Marshall's Defense of McCulloch v. Maryland

Abram Shulsky, How an Economist Might View McCulloch v. Maryland

Adam White, McCulloch v. Maryland and John Marshall's Judicial Statesmanship

12/29/2020

A Response to David Weisberg on Corpus Linguistics
James Cleith Phillips

[Ed.: We're pleased to have this guest response from James Cleith Phillips, Assistant Professor of Law at Chapman University Dale E. Fowler School of Law and one of the nation's leading experts on corpus linguistics in legal interpretation.]

David Weisberg has commented on a recent article I posted to SSRN wherein my co-author and I applied a corpus linguistic methodology to determine the ordinary meaning of key terms of the Antiquities Act of 1906. Our paper looked at the usage of the following phrases or words as they were used in the time leading up to and including the first decade of the 20th century:

  • situated upon (the) land(s) (searching for various forms of the verb situate)
  • upon the lands
  • lands
  • on land
  • land
  • parcel(s) of land

We searched for these phrases and words in the Corpus of Historical American English. And after reading hundreds of results, we could find no clear evidence that Americans from 1810-1909 commonly (if at all) used these phrases or words to refer to the bottom of the ocean. We concluded that the ordinary meaning of these terms would not include so-called “land” underneath the sea.

Mr. Weisberg criticizes not so much our research but the enterprise of using a corpus linguistic methodology itself for questions of ordinary meaning (his title supports this broader criticism). He finds it “false” that the dominant sense of a word or phrase in a context relevant to a statute is the ordinary meaning. In his view, “[f]requency does not determine or even alter meaning.”

As we noted in our paper, how exactly one should operationalize ordinary meaning is a theoretical question scholars and jurists have yet to definitely answer. If ordinary meaning is the meaning a word or phrase would have had to ordinary folks in a particular context, then understanding how people use language is an important insight into how they understand language. After all, just because a word or phrase can take on a particular meaning doesn’t mean it is usually understood to have that meaning in that context. Otherwise, language would constantly be ambiguous.

Mr. Weisberg rejects this and puts forth his own methodology using an example of the term misdemeanors from the Constitution’s text. He contends that while a search of the term in U.S. materials would reveal that in the context of “high crimes and misdemeanors” it would mean “serious, substantial wrongdoing,” it also had the common usage of “a relatively minor, insubstantial infraction.” Thus, in his view, the “frequency of one usage would not have obliterated or changed the meaning of the less-frequent usage.” So, the President could be impeached for “crossing against [a traffic] light.” (How could he know how common the criminal law usage was without resorting to a corpus? And when he refers to frequency, is he referring to overall or in a particular context?)

This example demonstrates at least three errors, which, unfortunately, are all too common. First, it ignores the linguistic principle of “non-compositionality.” Sometimes “the combination of words has a meaning of its own that is not a reliable amalgamation of the components at all,” such as for good or at all. Idioms are a specific type of this, as are cliches and frozen metaphors. (This is why the Supreme Court adopted the Anti-Dissection Rule in analyzing trademarks a century ago.) Phrases need to be understood as units—perhaps they will mean nothing more than the sum of their parts, but perhaps not.

Second, his misdemeanors example ignores context. The Constitution allows impeachment for high crimes and misdemeanors. Thus, the most relevant sense of the word misdemeanor is the sense with which it was used in the context of impeachment. To use the sense not used in the impeachment context would lead to a misreading of the Constitution just as if one argued that the phrase corruption of blood could be understood at the founding to mean one had a blood ailment.

Third, the misdemeanors example relies on a methodology that appears to never eliminate senses, which would lead to communication chaos. Just because a word or phrase has multiple possible senses doesn’t mean each one is activated in a given context. And with statutes, it would make the laws dangerously broad, particular those laws that use words with dozens of senses.

Next in his criticism, Mr. Weisberg appears to reject textualism in favor of some form of intentionalism (this is bolstered by a later sentence where he claims, “There is absolutely no reason to believe that Congress intended to limit the Antiquities Act to objects on dry lands and to exclude objects on submerged lands….”) While conceding that land or lands would be infrequently used to refer to the seafloor, he argues that the legislators probably never gave the distinction much thought and that there is no evidence they deliberately thought to exclude the seafloor sense from the statute. Without perhaps realizing it, he has stumbled upon another interesting theoretical question that textualism has yet to answer (as we noted in our paper): what to do in situations when a broader sense can include a narrower sense, but we think the narrower sense is the ordinary one in that context? Still, his criticisms are of the ordinary meaning inquiry and textualism itself. To the extent textualism’s ordinary meaning inquiry is concerned about notice, then requiring statutes to incorporate rare understandings that few if any would have understood seems deeply problematic. There is no real evidence that Americans around 1906 would have understood the Act to include seafloors, whatever the intent of Congress (and Mr. Weisberg seems to concede it wasn’t really thinking about seafloors either).

Finally, Mr. Weisberg asks, “If that’s what the legislators meant, why isn’t that what they enacted” That is, why didn’t the 1906 Act provide that the president could declare monuments on “dry lands” of the federal government?” Is anyone going to argue that, in 1906, the phrase ‘dry lands’ was not in common use?” Obviously the phrase was in use, though it appears just 3 times from 1900-1909 in the corpus, as compared to lands, which appears 1241 times. Furthermore, when used in those three instances in the decade the Act was adopted, it was in reference to land that did not get much rain and either had to be sowed with a type of wheat suited for such, or irrigated. Of course, dry land could have the meaning that Mr. Weisberg points out the Oxford English Dictionary gives it—land above water. But what he ignores is that nearly every time (that we examined) that Americans around the turn of the 20th century used the word lands or lands (when it wasn’t an irrelevant sense such, as the verb to land or as a synonym for a country), they used it to mean dry land. That was its common or ordinary meaning.

And Mr. Weisberg is silent on the other term from the act we analyzed, parcels of land, and how anyone could read that a statute that authorized Congress to reserve “parcels of land” to protect the objects made national monuments “situated upon the lands” the federal government owned or controlled. No one in the early 20th century used parcels of land to refer to the ocean or seafloor.

In sum, whatever Congress intended, we are stuck with the ordinary meaning of the words it used in the 1906 Act. And people didn’t use these words and phrases to mean anything under the ocean. They therefore would not have understood the Act to cover such. How do we know how they would have understood these words phrases? By how they used them. And if the way a word is most commonly used doesn't determine its meaning, what does?

12/28/2020

Ashlee Paxton-Turner: Continental Originalism
Michael Ramsey

Ashlee Paxton-Turner (Independent) has posted Continental Originalism: Keeping Our Republic (27 pages) on SSRN.  Here is the abstract:

This Article accepts that originalism is a powerful and appealing method of constitutional interpretation that continues to gain much attention. That said, to the extent we have to reckon with originalism, the idea of union preservation as the lodestar for the originalist’s constitutional interpretation can make originalism a little more faithful to the historical moment it holds sacred and thus add some legitimacy to judicial opinions at a time when we need it most. Through a close reading of the Federalist Papers—and the historical moment from which they are born—this Article builds a theory of “continental originalism” with union preservation as the originalist’s lodestar. Because if we accept that originalism is not going anywhere anytime soon and we also accept its basic principles, we must then also take seriously the historical point—clearly revealed by the Federalist Papers—that baked into the original meaning, original intent, or the ratifiers’ understanding is this idea of securing the nation’s survival and preserving our union. Plainly put, to keep our republic, we can start by “think[ing] continentally.”

12/27/2020

And, on the Third Day, God Created Dry Land and Refuted Corpus Linguistics
David Weisberg

Professors James Cleith Phillips and John Yoo have published a paper arguing that corpus linguistics generates a negative answer to the question: Does the Antiquities Act of 1906, which authorizes the president to declare as national monuments objects of historic or scientific interest situated upon lands owned or controlled by the federal government, authorize the president to make such declarations with regard to objects on the ocean floor?  With all due respect, their paper vividly illustrates why corpus linguistics is dangerously unreliable as a method of legal analysis.

First, accepting the criterion that Phillips and Yoo themselves adopt, corpus linguistics is unsatisfactory on its face.  This is how they summarize the methodology:

[I]f 90% of people would understand a word to mean X in a particular context, and 10% would understand a word to mean Y in that context, textualism would declare X to be the ordinary meaning, as long as X and Y did not overlap or one was not subsumed within the other. Since we cannot survey Americans from the 1900s (and surveying people has its own problems for determining meaning), we will need to turn to corpus data to see if there was a dominant sense of the relevant terms from the Act, at least dominant in how frequently it was used. If there is, that dominant sense is a particular term’s ordinary meaning.

The notion that dominance “in how frequently [a term] was used” in a certain context can somehow be equated with “dominant sense” or “ordinary meaning” is false on its face.  Frequency does not determine or even alter meaning.  Consider the following. 

It’s certain that, when President Trump was impeached and on trial, a survey of written materials published in the U.S. would have found that the word “misdemeanors” overwhelming appeared in the context of “high crimes and misdemeanors,” in which context it meant serious, substantial wrongdoing.  Nevertheless, we all understood that that word also retained what had formerly been its more common usage: a relatively minor, insubstantial infraction.  The frequency of one usage would not have obliterated or changed the meaning of the less-frequent usage.  Even during Trump’s Senate trial, crossing against the light was still a misdemeanor.

Of course, in 1906 (and, I would bet, today) the word “land” or “lands” was used infrequently in discussions of the seafloor.  But it is one thing for legislators not to give any substantial thought to the seafloor, and it is a very different thing for them deliberately to exclude the seafloor from the scope of legislation.  In fact, if they did deliberately exclude the seafloor, one would expect that there would be more frequent use of “land” in that context than if they had never given the matter serious consideration either way.

This brings us directly to the question a statistical methodology, such as corpus linguistics, can never answer: If that’s what the legislators meant, why isn’t that what they enacted?  That is, why didn’t the 1906 Act provide that the president could declare monuments on “dry lands” of the federal government?  Is anyone going to argue that, in 1906, the phrase “dry lands” was not in common use?  The King James version of the Bible, generally accepted as the most widely published English text of all time, says that, on the third day of creation, God gathered the waters together and let “the dry land” appear.  Were legislators in 1906 ignorant of the Bible?  Moreover, the Oxford English Dictionary has a definition of the phrase “dry land”—“Land not submerged or under water; land as opposed to sea.”—which has been valid since the year 1225. This definition establishes that, over the last millennium, competent English speakers have at least implicitly understood that "land" refers to stuff that can be either submerged under water or not.  Whether above or below water, it's still "land".

There is absolutely no reason to believe that Congress intended to limit the Antiquities Act to objects on dry lands and to exclude objects on submerged lands; they could easily have used the phrase “dry lands” if they so intended.  Moreover, there is no reason to believe that underwater objects have less historic or scientific interest than objects on dry lands, even if legislators did not discuss that possibility.  In sum, corpus linguistics provides a clearly incorrect interpretation of the Antiquities Act. 

12/23/2020

Mark Pulliam on Sunstein & Vermeule on the Administrative State
Michael Ramsey

At Misrule of Law, Mark Pulliam: Trust Us. We’re Experts. (reviewing [unfavorably] Law & Leviathan by Cass Sunstein and Adrian Vermeule (Belknap Press 2020)).  From the introduction:

In recent years, some (mostly right-of-center) scholars—notably, Philip HamburgerRichard EpsteinGary LawsonPeter Wallison, and John Marini—have written devastating critiques of the administrative state, including challenges to the legality and constitutionality of administrative law itself. These criticisms, although not (yet) sufficient to provoke a wholesale re-thinking of the bureaucratic Leviathan, have prompted small but important course corrections. For example, on the Supreme Court, Justices Neil Gorsuch and Clarence Thomas have recently indicated their intention to push back against Congress’s delegation to agencies of lawmaking authority and to reduce the degree of judicial deference to agency actions (e.g., limiting or overruling the Court’s 1984 Chevron decision). These may seem like minor changes, but they represent radical deviations from decades of established orthodoxy.

... In a recent book, Law & Leviathan, Harvard Law School professors Cass Sunstein and Adrian Vermeule (an odd pairing of, respectively, an Obama administration veteran and a former Scalia clerk who espouses a substitute for originalism that he terms “common-good constitutionalism” and which critics condemn as theocratic integralism) undertake a breezy defense of the status quo, while recommending a few minor tweaks in lieu of dramatic changes.  Both scholars teach administrative law, and their slim book (145 pages of text) evinces an insider’s familiarity with the subject’s technical minutiae (in a field in which such minutiae abounds). Both authors are (separately and together) prolific, and both are significantly invested in preserving the overall model of administrative law as it has emerged since the enactment of the Administrative Procedure Act in 1946. The book, admittedly written by insiders for insiders, assumes that the reader shares their pro-APA worldview, and will nod along in agreement. The administrative law orthodoxy is deeply entrenched in the legal academy. As Michael Greve observed in an essay reviewing Vermeule’s 2016 book, Law’s Abnegation, “administrative law’s arc toward deference simply marks the triumph of a certain legal class.” The book is obviously directed at this sympathetic audience.

And on the originalist aspect of the debate:

Sunstein and Vermeule begin by charging that critics of the administrative state are “best understood as a living-constitutionalist movement,” falsely suggesting that [the critics' view] is unsupported by constitutional text and history. (Elsewhere, the authors undercut this point by stating that “It is not clear that we should be originalists.” Which is it?) Sunstein and Vermeule then erect a straw man, characterizing the critics’ “main concern” as “the overriding fear that the executive will abuse its power.” This is incorrect. The critics’ main concern (keeping in mind that the critics speak with many voices) is that the administrative state violates the constitutional separation of powers—creating a federal Leviathan while simultaneously diluting democratic accountability—in a way that shreds institutional constraints on the growth and reach of the federal government. The issue is not merely “the fear of executive abuse,” as Sunstein and Vermeule claim, but also congressional abdication and judicial acquiescence. 

Moreover, the administrative state denies Americans their freedom to be governed by rules and institutions created by their elective consent. Decrees and regulations issued by unelected bureaucrats reduce citizens to the status of subjects, contrary to the Founders’ intentions. The Progressive concept of “administration” in lieu of representative democracy represents a form of governmental absolutism that sacrifices neutrality, fairness, and due process on the altar of “technical expertise.” The system we dignify with the label “administrative law” is really not law at all—it is an evasion of law, properly understood. Without the benefit of actual legislative direction, or actual courts bound by traditional rules of procedure, agency commands resemble long-discredited prerogative tribunals such as Star Chamber.  The Founders were understandably opposed to “extralegal” power once asserted by English monarchs, and when adopting the Constitution went to great lengths to prevent similar abuses from happening in the federal government.

12/22/2020

Larry Solum's Legal Theory Lexicon on the Construction Zone
Michael Ramsey

At Legal Theory Blog, Larry Solum has an entry in his Legal Theory Lexicon for "The Construction Zone".  From the introduction: 

The idea of a "construction zone" is based on the interpretation-construction distinction.  The distinction between "interpretation" and "construction" marks the fundamental conceptual difference between two activities:

Interpretation is the activity that aims to recover the meaning of a legal text, such as a contract, regulation, statute, or constitutional provision.

Construction is the activity that determines the legal effect of text.  For example, in the case of a constitution, construction determines the legal content of constitutional doctrines and the decision of constitutional cases.

This is an old distinction in American legal theory and played a prominent role in the works of the great treatise writers of the second half of the nineteenth century and the first half of the twentieth, but it gradually fell into disuse.  The revival of the interpretation-construction distinction is associated with the "New Originalism" and especially Keith Whittington and Randy Barnett. [Ed.: Professor Solum is too modest to add his own name here, but it obviously belongs; see for example this article.]

And from later on:

Now that we have the idea of a construction zone, we can introduce a contrasting notion.  The "interpretation zone" is the set of issues and cases for which the meaning of the text is determinate.  Some legal texts are fully determinate: once we know what they mean, we know how to apply them.  For example, the Constitution specifies that each state has two Senators: in practice, this provision is fully determinate: issues concerning this provision are in the interpretation zone.

The notion of an interpretation zone is relative to theories of interpretation and construction.  For example, statutory textualists believe that any statutory issue that can be answered by the meaning of the statutory text is in the interpretation zone.  But purposivists may not accept this idea.  Because they believe that the purpose of a statute should determine the statute's legal effect, they reject the idea that clear text automatically resolves questions about the legal effect of a statute.

For counterpoints, see Original Methods Originalism: A New Theory of Interpretation and the Case Against Construction by John McGinnis and Michael Rappaport, and Construction, Originalist Interpretation and the Complete Constitution by Richard Kay.

12/21/2020

Second Amendment Public Carry Case now on Petition to the Supreme Court
Michael Ramsey

New York State Rifle and Pistol Association Inc. v. Corlett may be the case to finally get the Supreme Court to answer the question whether the Second Amendment protects a right to carry firearms in public. If so, it is likely to have substantial originalist implications.  Here is the summary statement from the petition for certiorari, filed December 17 by Paul Clement: 

Perhaps the single most important unresolved Second Amendment question after this Court’s landmark decisions in District of Columbia v. Heller, 554 U.S. 570 (2008), and McDonald v. City of Chicago, 561 U.S. 742 (2010), is whether the Second Amendment secures the individual right to bear arms for self-defense where confrontations often occur: outside the home.

The text, history, and tradition of the Second Amendment and this Court’s binding precedents compel the conclusion that the Second Amendment does indeed secure that right. As this Court held in Heller, the “right of the people to keep and bear Arms” protects at its core “the individual right to possess and carry weapons in case of confrontation.” 554 U.S. at 592. A law that flatly prohibits ordinary law-abiding citizens from carrying a handgun for self-defense outside the home cannot be reconciled with the Court’s affirmation of the individual right to possess and carry weapons in case of confrontation. The Second Amendment does not exist to protect only the rights of the happy few who distinguish themselves from the body of “the people” through some “proper cause.” To the contrary, the Second Amendment exists to protect the rights of all the people.

Despite the wealth of authority confirming that the Second Amendment guarantees the people’s right to keep and bear arms for self-defense outside the home, several courts of appeals continue to resist that conclusion, leaving the law in a state of chaos and the fundamental right to carry a firearm dependent on where one lives. The D.C. Circuit has seen these restrictive regimes for what they are—“necessarily a total ban on most D.C. residents’ right to carry a gun”—and joined the Seventh Circuit in concluding that the government may not prohibit ordinary law abiding citizens from carrying handguns for self defense. See Wrenn v. District of Columbia, 864 F.3d 650, 666 (D.C. Cir. 2017); Moore v. Madigan, 702 F.3d 933 (7th Cir. 2012). But the Second Circuit upheld New York’s materially identical regime, on the basis that the Second Amendment right of self-defense is subject to state control. In other words, in its view, the Second Amendment may protect a fundamental, individual right of the “people,” but the state may fundamentally and individually dictate which people (if any) may exercise that right. See Kachalsky v. Cty. of Westchester, 701 F.3d 81 (2d Cir. 2012). This view is untenable.

Unfortunately, the Second Circuit is not alone in that view. The First, Third, and Fourth Circuits have likewise endorsed restrictions that cut off the right to keep and bear arms at a homeowner’s door. Common sense dictates that the need for armed self-defense (i.e., cases of confrontation) is not confined to the interior of a home. And yet, these courts seem unconcerned with regimes in which the exercise of a right that the Constitution guarantees to all “the people” is instead deemed a crime unless one can preemptively convince a state official that she enjoys an especially good reason for wanting to exercise it. See Gould v. Morgan, 907 F.3d 659 (1st Cir. 2018); Drake v. Filko, 724 F.3d 426 (3d Cir. 2013); Woollard v. Gallagher, 712 F.3d 865 (4th Cir. 2013). Such decisions stand in clear conflict with the D.C. Circuit’s Wrenn decision and the Seventh Circuit’s Moore decision. The circuits are thus in open and acknowledged division over the constitutionality of laws denying ordinary law-abiding citizens their right to carry a handgun for self-defense. This Court should grant certiorari, resolve this untenable circuit split, and restore to all “the people” protected by the Second Amendment the right to keep and bear arms.

As the petition notes later, panels of the Ninth Circuit have twice upheld the right, using strongly originalist analyses, but each decision was vacated by the en banc process. Peruta v. Cty. of San Diego, 742 F.3d 1144, 1167 (9th Cir. 2014), vacated, rev’d on reh’g en banc, 824 F.3d 919, 942 (9th Cir. 2016); Young v. Hawaii, 896 F.3d 1044 (9th Cir. 2018), vacated, reh’g en banc granted, 915 F.3d 681 (9th Cir. 2019). (My former student Alan Beck argued the latter case for the claimant.)

Via Robert VerBruggen at NRO, who comments:

Since the previous Supreme Court cases, some academics have purported to find strong evidence that, instead, the term ["bear arms"] overwhelmingly referred to military-related activity in Founding-era writings. I find their methods unimpressive — here’s a good demonstration of the problem with counting a term’s uses and pretending that’s the same as defining the term, and here’s a more positive take on the method that also discusses its limits. Further, their conclusion flies in the face of several direct analogues to the Second Amendment, including state declarations of rights. These provisions protected the right of the people to bear arms “for the defense of themselves and the state,” “for the defense of the state” (which would be redundant if “bear arms” inherently referred to the defense of the state), and even “for the purpose of killing game.” But I’m curious what the Court and especially its conservatives will make of this new evidence.

12/20/2020

Richard Murphy on Nicholas Parrillo on Nondelegation
Michael Ramsey

At Jotwell, Richard Murphy (Texas Tech): The Nondelegation Doctrine and a Deep Dive into Federal Taxation of Real Estate in 1798 that You Didn’t Even Know You Needed.  From the introduction:

In response to this prospect [of a reinvigorated nondelegation doctrine], three leading scholars of administrative law have recently produced two major law review articles that deploy originalist arguments to debunk the nondelegation doctrine. Professors Julian Mortenson and Nicholas Bagley, based on a wide-ranging survey of Anglo-American legal thought before and after 1789, conclude that “the overwhelming majority of Founders didn’t see anything wrong with delegations as a matter of legal theory.” (Delegation at the Founding121 Columbia L. Rev. (forthcoming 2021)) Turning to practice, they identify numerous delegations of generous grants of discretionary rulemaking authority to administrative authorities from the very early years of the Republic. In their view, squaring this history with a meaningful nondelegation doctrine requires too many gerrymandered exceptions to be remotely persuasive. Delegation at the Founding, which does not pull any punches, has already generated a great deal of discussion in law reviews and the blogosphere. For one of several rejoinders, you might check out, Ilan Wurman’s Nondelegation at the Founding, forthcoming in the Yale Law Journal.

The other major salvo, and the subject of the remainder of this jot, is Professor Nicholas Parrillo’s splendid article with the really long title, A Critical Assessment of the Originalist Case Against Administrative Regulatory Power: New Evidence from the Federal Tax on Private Real Estate in the 1790s, which will be published next year in the Yale Law Journal. This article, too, examines early congressional legislation to shed light on whether the original understanding of the Constitution demands a nondelegation doctrine with sharp teeth. Rather than go for the magisterial sweep in the fashion of Mortensen and Bagley, however, Parrillo instead goes for the deep dive, exploring for over one hundred pages the discretionary powers that Congress granted to administrators to implement a tax on real estate that Congress imposed in 1798.

To explain why this 1798 tax is so important, Professor Parrillo notes that proponents of a strong nondelegation doctrine often try to explain away early congressional delegations by arguing that they fall into exceptions that allow more constitutional room for rulemaking. For instance, greater administrative discretion is permissible for foreign and military affairs because they fall within the natural domain of the executive in any event. Also, Congress can grant rulemaking discretion to administrative authorities to determine how to allocate benefits, services, and privileges. On this view, the nondelegation doctrine does, however, bar Congress from delegating to administrative authorities the power to promulgate “coercive regulation[s] of private rights and private conduct.” (P. 9.)

One way to combat the nondelegation doctrine in this limited form is to contend, as Mortensen and Bagley do, that the exceptions represent an implausible effort to save the doctrine from the evidence of history. Another way is to find early congressional delegations that in point of fact did grant agencies coercive power over private rights. And, in the form of the 1798 federal real estate tax, Professor Parrillo has found just such a delegation....

Mike Rappaport adds: Parrillo will be giving his paper at the 12th Annual Hugh & Hazel Darling Originalism Works in Progress Conference to be held in February

12/19/2020

James Cleith Phillips & John Yoo: The Ordinary Meaning of the Antiquities Act of 1906
Michael Ramsey

James Cleith Phillips (Chapman University, The Dale E. Fowler School of Law) and John Yoo (University of California at Berkeley School of Law; American Enterprise Institute; Stanford University - The Hoover Institution on War, Revolution and Peace) have posted The Ordinary Meaning of the Antiquities Act of 1906: A Corpus Linguistic Analysis (37 pages) on SSRN.  Here is the abstract:

The Antiquities Act of 1906 authorized presidents to declare to be national monuments objects that were situated upon lands owned or controlled by the federal government. Further, the Act allowed the president to reserves parcels of land around the object to protect it. In recent years, Presidents Bush and Obama have relied on the Act to declare objects such as coral reefs and sea canyons to be national monuments, reserving millions of square miles of ocean for their protection.

This essay seeks to determine what the ordinary meaning of the Act was in 1906. Relying on the Corpus of Historical American English (COHA), the paper finds that American English leading up to and around the time of the adoption of the Act did not use the terms and phrases in the Act to refer to anything found under the ocean. The ordinary meaning of the Act, then, would appear to not authorize the marine monuments created by recent presidents.

(Via Larry Solum at Legal Theory Blog.)

12/18/2020

Disqualifications and Officers [Updated with a Comment from Martin Lederman]
John Vlahoplus

Regarding this post about General Austin, Section 8 of the 1789 Act  creating the Treasury Department provided “[t]hat no person appointed to any office instituted by this act, shall directly or indirectly be concerned or interested in carrying on the business of trade or commerce, or be owner in whole or in part, of any sea vessel,” or carry on a variety of other conflict of interest transactions.  It punished violators by a fine, removal from office, and permanent disqualification from holding any office under the United States. 

The potential for a conflict of interest from a prior position differs little from that of a current outside interest.  Disqualification for either reason restricts the president’s selection power.  Permanent disqualification restricts the selection power of all presidents, current and future, even further.  Yet the First Congress thought that it had the power to disqualify candidates for presidentially appointed offices, both temporarily and permanently.

The Treasury Act specified violations to be high misdemeanors.  So violators could be impeached, which would be consistent with the sanctions of removal from office and disqualification from future offices.  But the Constitution forbids fines as sanctions for impeachment.  Congress created a shortcut to the Constitution's two step process of impeachment/conviction and subsequent criminal trial.  Moreover, it delegated its powers of removal and permanent disqualification to prosecutors and criminal courts--apparently without waiving its power to impeach and convict independently if it acted before a criminal prosecution or even after a criminal acquittal.  The First Congress was quite comfortable with delegation.

MICHAEL RAMSEY ADDS:  A supporting comment from Martin Lederman (Georgetown):

Check out pages 264-275 of Brandeis's opinion in Myers, listing countless such statutes (yup, eleven pages of footnotes worth).  And even Taft's opinion in Myers v. United States -- the high-water mark of executive authority pre-Seila Law -- concedes this power:

It is argued that the denial of the legislative power to regulate removals in some way involves the denial of power to prescribe qualifications for office, or reasonable classification for promotion, and yet that has been often exercised.  We see no conflict between the latter power and that of appointment and removal, provided, of course, that the qualifications do not so limit selection and so trench upon executive choice as to be, in effect, legislative designation. ...

Article II expressly and by implication withholds from Congress power to determine who shall appoint and who shall remove except as to inferior offices.  To Congress under its legislative power is given the establishment of offices, the determination of their functions and jurisdiction, the prescribing of reasonable and relevant qualifications and rules of eligibility of appointees, and the fixing of the term for which they are to be appointed, and their compensation—all except as otherwise provided by the Constitution. 

This is the modern Executive branch view, embracing the canonical statement by AG Akerman.

Ed Whelan on Eric Segall on Ed Purcell on Justice Scalia
Michael Ramsey

At Dorf on Law, Eric Segall: Justice Scalia's Legacy as Irony: Reviewing Ed Purcell's Antonin Scalia and American Constitutionalism.  From the introduction:

Justice Scalia used to tour the United States arguing that the "Constitution is Dead, Dead, Dead." He detested what he saw as the judicial lawlessness of the Warren/Burger Court's eras and he claimed to follow a different path devoted to the study of text and history, not the imposition of value judgments by a "committee of nine lawyers." 

Yet, when Scalia's thirty years of jurisprudence are examined carefully without the trappings of the late Justices' barbs, quips, and talking points, it turns out, as Professor Ed Purcell shows in his new book, "Antonin Scalia and American Constitutionalism," that Scalia's legacy demonstrates that he could no more avoid living constitutionalism than any other Justice. For all his unyielding rhetoric about originalism as the only true method of constitutional interpretation, Scalia's career shows that pluralistic decision-making was the true hallmark of his judicial method.

This is not news to most academics who have studied Scalia, but Purcell's book is a wonderfully comprehensive and devastating critique of Scalia the Justice. In time, I hope this book play a major role in dispelling the myths surrounding Justice Scalia so that we can stop pretending this man was a principled or even honest Supreme Court Justice.

At NRO Bench Memos, Ed Whelan has a response: Law Prof Eric Segall Damns Scalia Book with Ardent Praise.  From the core of the argument:

Segall, I’ll note, is unlikely to have approached Purcell’s book skeptically. He has previously shown himself all too willing to attack Scalia by setting up and knocking down a bunch of straw men, and he sees the book as bolstering his preconception that Scalia was not “a principled or even honest Supreme Court Justice.”

I haven’t read Purcell’s book, so I can’t comment directly on it. I will note, though, that the two block quotes from it that Segall presents severely undermine his case that the book deserves praise.

1. Here’s the first block quote from Purcell (underlining added):

Scalia believed wholeheartedly in the death penalty, market economics, limited government, the centrality of religion, the right to possess firearms, and a broad set of values he considered ‘traditional.’ He was adamantly opposed to abortion, gay rights, affirmative action, and a right to assisted suicide. In his mind two truths were beyond question: His position on each of those issues was morally right, and on each of those issues the Constitution was either fully consistent with his moral position or, at a minimum, failed absolutely to support those who disagreed with him.

It’s extraordinary that Purcell would claim to know what Scalia “believed wholeheartedly,” what he “adamantly opposed,” and what “truths” he regarded as “beyond question.” I’d be curious to see the evidence that Purcell presents for these claims. But I strongly suspect that he’s just reasoning backwards from his assertion that “on each of those issues the Constitution was either fully consistent with his moral position or, at a minimum, failed absolutely to support those who disagreed with him.”

But what does this assertion even mean?  I count nine “issues” on which Purcell claims that Scalia concluded that the Constitution “was either fully consistent with his moral position or, at a minimum, failed absolutely to support those who disagreed with him.” (I read the four issues in the second sentence as spelling out the “broad set of values” in the first.) On seven of these nine issues—“the death penalty, market economics, limited government, the centrality of religion [whatever that means], … abortion, gay rights, … and a right to assisted suicide”—Scalia clearly did not believe that the Constitution dictated his putative “moral position.” On each of those matters, he believed that the Constitution left to the legislative processes broad leeway to adopt different positions and to revise those positions over time.

Agreed, and I'd add that two of the issues listed in the block quote are especially odd as evidence of Scalia's conflation of personal morality and constitutionalism.  As to "market economics," Scalia emphatically rejected the broad claim of constitutional economic rights under the Ninth and Fourteenth Amendments, as pressed by Scalia's contemporary Bernard Siegan (of the University of San Diego Law School) and today by scholars such as Randy Barnett.   So if Scalia had a moral/policy preference for market economics (and I think he did), his rejection of the Siegan-Barnett position shows his ability to separate his moral/policy preferences from his constitutionalism.  That is, it's evidence of the exact opposite of the position Segall and Purcell are advancing.

Religion under the free exercise clause is similar.  One of Scalia's best known majority opinions is Employment Division v. Smith, holding that a neutral generally applicable law that incidentally prohibits a religious practice does not violate the free exercise clause.  Scalia believed that legislatures should provide (and indeed were under a moral duty to provide) exceptions from general laws for religious practices where that was consistent with public order. (I heard him say so on several occasions, sometimes colorfully).  But he did not find that to be a constitutional duty.  Again, the example proves the opposite of the Segall-Purcell contention.

Like Whelan, I haven't read the book, and it no doubt has some responses to these points.  But in any event the simplistic version -- that Scalia just voted his policy preferences -- seems overstated.

12/17/2020

A Judicially Manageable Nondelegation Doctrine
Mike Rappaport

            After several generations in which the nondelegation doctrine has been largely ignored, the Supreme Court has given hints that it may start to enforce the doctrine once again.  This change in constitutional interpretation could have enormous consequences, because a strong nondelegation doctrine poses a significant check on the excesses of the administrative state.  But enforcing the nondelegation doctrine raises a problem that has made even those sympathetic to the doctrine hesitant about applying it—the view that there is no clear way to distinguish between constitutional and unconstitutional delegations of policymaking authority to the executive.  Here, I want to propose a solution to that problem (elaborated in this article) that would allow for a judicially manageable nondelegation doctrine.

            The nondelegation doctrine holds that Congress cannot delegate its legislative power to the executive branch.  The legislative power is normally identified with policymaking discretion.  Thus, the doctrine limits Congress from assigning policymaking to administrative agencies. 

            It was 85 years ago that the Supreme Court used the doctrine to strike down important delegations of legislative power in a few cases during the New Deal.  But the doctrine fell prey to the New Deal judicial revolution.  With the appointment of New Deal justices, the Supreme Court started to apply the doctrine extremely leniently to allow enormous delegations of policymaking discretion to the executive.  Since the New Deal, no delegations reviewed by the Court—and there have been many—have been struck down as unconstitutional.

            This relaxation of the doctrine has been important, since it has allowed the administrative state to grow.  If a strict nondelegation doctrine were enforced, Congress would have to pass laws rather than simply having agencies enact rules, as is now the standard practice.  This requirement would be significant because divided government (which usually exists) means that fewer and more moderate regulations would be passed if Congress had to enact them. 

            But the Supreme Court has now indicated that it may be willing to reinvigorate the nondelegation doctrine.  In the 2019 case of Gundy v. United States, Justice Gorsuch wrote a dissent, joined by two other justices (Roberts and Thomas), advocating a return to a strict nondelegation doctrine.  In a separate opinion, Justice Alito stated that he would be willing to revisit the doctrine in a suitable case, and in a subsequent opinion Justice Kavanaugh expressed similar sentiments.  That’s five justices, and with the addition of originalist Justice Amy Coney Barrett, there is a real chance of establishing a strong nondelegation doctrine.  

            But there is a problem with a strict nondelegation doctrine:  How does one distinguish between constitutional and unconstitutional delegations?  This obstacle irked Justice Scalia and led him to refuse to enforce a strong nondelegation doctrine.  In Mistretta v. United States, Scalia wrote:

Once it is conceded, as it must be, that no statute can be entirely precise, and that some judgments, even some judgments involving policy considerations, must be left to the officers executing the law and to the judges applying it, the debate over unconstitutional delegation becomes a debate not over a point of principle, but over a question of degree (emphasis added). 

As a result, Scalia believed that courts should not enforce the nondelegation doctrine, even though he acknowledged the prohibition of delegation was part of the Constitution. 

            While Scalia was unwilling to have the courts enforce the doctrine, advocates of a strict judicially enforced nondelegation doctrine have also admitted that it would be difficult to draw the line between constitutional and unconstitutional delegations of policymaking discretion.  Relying on some language from Chief Justice Marshall, Gary Lawson (who clerked for Scalia) argues that the Constitution requires Congress to decide the “important subjects,” but can allow the executive to resolve “matters of less interest.”  This rule, which Lawson admits would involve very unclear applications, is precisely what Scalia feared.  

            But after struggling with the issue for many years, I have discovered a more determinate way of drawing the distinction between constitutional and unconstitutional delegations of policymaking authority.  In my view, the Constitution categorically prohibits the delegation of policymaking authority (in the area covered by the non-delegation doctrine, which I discuss in my penultimate paragraph).  By contrast, Congress can assign non-policymaking tasks to the executive—most importantly, genuine legal interpretation and genuine fact-finding.  If an agency is merely interpreting laws or finding facts, then it is not exercising policymaking authority and therefore its authority and actions are constitutional.

            How do we determine whether an agency action constitutes legal interpretation?  The answer is that, when interpreting a law, the agency must be acting as a traditional court would have done at the time of the Constitution’s ratification.  It must seek to discern the meaning of the law from its text and intent.  So long as the agency is behaving in this manner, its actions constitute legal interpretation rather than policymaking.

            But modern statutes often ask agencies to go beyond such traditional legal interpretation. For example, imagine that a statute authorized an agency to adopt regulations that were in the public interest.  If the agency then adopted a regulation on the ground that it was one of many possible regulations that were in the public interest, that would go beyond legal interpretation because the agency would be exercising policymaking discretion by deciding which public interest regulation to adopt.  If the agency argued instead that the single regulation it adopted was uniquely determined by the public interest standard, then this too would be unconstitutional because a court at the time of the Constitution would not interpret a general and vague term like the public interest to yield a single specific regulation.

            A similar approach distinguishes policymaking from fact-finding.  If an agency is genuinely deciding a factual issue, then the agency is not exercising policymaking authority.  But these days agencies are often given discretion to decide issues that resemble fact questions, but are actually decided on policy grounds.  For example, agencies are sometimes asked to decide the fact question whether a substance is a carcinogen even though there is no good evidence whether or not it is.  Agencies often decide these questions by adopting a policy position, such as it is better to be safe than sorry.  These type of decisions are not limited to factual findings but also include policy determinations, and therefore are unconstitutional.  But if an agency is deciding only a genuine factual question—a question about which there is a knowable fact of the matter—then the decision will be constitutional.  

            Unlike the non-delegation doctrine that Scalia envisioned, my approach does not involve a question of degree.  Instead, it involves the classification of a task as fact-finding, law interpretation, or policymaking.  There may be close cases—where it is not clear whether there is a genuine question of fact or law—but that is true in most areas of law.  Significantly, there is a distinction in kind between questions of policy and questions of fact and law.

            While my approach provides a relatively clear line between policymaking and executive authority, it does require courts to answer another question.  In my view, the strict non-delegation doctrine only applies to actions that involve the regulation of private rights, such as common law rights. When the government regulates a private right, such as how one uses one’s land or operates one’s business, the strict nondelegation doctrine applies to this regulation.  These were the rights at the Founding that were the most prized and considered most in need of protection.  By contrast, a variety of laws, such as those involving spending programs, foreign affairs, and territories, are not covered by the strict nondelegation doctrine.  There is significant historical evidence that delegations of these types occurred near the time of the Founding.  While my approach thus requires courts to draw a distinction between laws that are and are not covered by the strict nondelegation doctrine, this task is no more difficult than many tasks that court deciding constitutional issues undertake.

            In the end, the Constitution’s original meaning provides a judicially manageable line between constitutional and unconstitutional delegations of authority to the executive.  Although there are other challenges to a strong non-delegation doctrine, such as the potentially disruptive effect it would have on our existing laws, a judicially manageable standard is not one of them.

12/16/2020

The Constitution, General Austin, and the Seven-Year Rule
Michael Ramsey

With President-elect Biden announcing retired general Lloyd Austin as his pick for Defense Secretary, 10 U.S.C. 113(a) is back in the news.  It provides:

A person may not be appointed as Secretary of Defense within seven years after relief from active duty as a commissioned officer of a regular component of an armed force.

General Austin does not meet the seven year limit, so he needs a waiver from Congress.  Or does he?  Maybe the statute is unconstitutional.

Mike Rappaport had an interesting post on this issue four years ago in connection with President Trump's nomination of James Mattis as Defense Secretary (Mattis also failed the seven year test, but got a waiver from Congress).  From the core of his analysis:

The argument for concluding that the Congress cannot pass the qualification requirement is that [the appointments] clause gives to the President and the Senate the decision whether a person is qualified for the office.  The President, with the consent of the Senate, has the power to decide who to appoint for an officer and that includes deciding whether his qualifications are sufficient.  

The counter to this argument is that the Clause does not govern qualifications, but only the selection of a person who has the requisite statutory qualifications.  Congress has the power to set the qualifications for an office based on its authority to “establish . . . by law . . . officers of the United States.”  One might argue that establishing an office includes the power to establish qualifications for the office.  

If establishing an office includes the power to establish qualifications for the office, then the President and the Senate have only the power to determine whether someone, who has the legally required qualifications, is an appropriate person to appoint to the office.  If not, then the President and the Senate can choose who they like, notwithstanding any statutory qualifications.  

It is not entirely clear what the answer is.  Establishing qualifications might or might not fall under the power to establish an office.  My intuition is that there is a bit stronger case for concluding that qualifications are part of the office.  Under that view, then, Congress could establish the binding qualifications. 

Ultimately, answering this question would turn on the history of these matters.  One aspect of the history is that the King of England had the power both to establish the offices and to make the appointments.  This Constitution then split the power between the President (and the Senate) and the Congress.  The question is on what side the power to set qualifications was placed.  Given the fact that the English practice is not that helpful, an examination of the practice in the states prior to the Constitution would be extremely important. 

My tentative view is that the restriction is unconstitutional for the reasons stated in the post.  It infringes the appointments power, which is vested solely in the President and the Senate.  The seven year rule is said to be based in a desire to preserve civilian control over the military.  But that's a policy decision as to who is best qualified for the job.  The President may believe that someone with more immediate military experience is actually better qualified.  (President Washington appointed former general Henry Knox as Secretary of War in 1789; Knox would have failed the seven year rule if it existed then.) The constitutional check on this assessment is the Senate, which must agree to the appointment (as Hamilton described in Federalist 76).  The appointments clause does not give the House a say in the matter.  But if Congress can specify qualifications for executive offices, that creates an appointments role for the House, which can drastically limit the choices available to the President by refusing to waive previously enacted qualifications.

In an originalist analysis, early post-ratification practice seems significant.  For the most part, the first Congress did not specify qualifications for the offices it created.  For example, no qualifications were specified for the Secretaries of State, War or Treasury when those offices were created in 1789.  Nor were any qualifications specified for judges in the 1789 Judiciary Act.  This practice suggests that Congress thought the assessment of qualifications was part of the appointment power, not the power of creating offices.

The record isn't entirely one-sided, however.  The Judiciary Act did require that the Attorney General and the U.S. District Attorneys be "person[s] learned in the law."  One might argue that this is not a material limitation on appointment, as it's hard to imagine that the President would nominate anyone for such positions who did not have at least some legal experience; whether that experience qualified as "learned in the law" surely would as a practical matter be for the President and Senate to decide in connection with the appointment.

I'm not sure if there are other early examples of Congress prescribing qualifications.  David Currie, in The Constitution in Congress (p. 43 n. 255) reports that:

The following April [i.e., 1790], however, Representative Scott moved to excise from a bill to regulate Indian commerce a requirement that the Superintendent of Indian Affairs be a military officer, arguing among other things that this restriction ... "infringe[d] the power of the President."  In response it was noted that "the President and Senate are restricted in their appointments of officers in several other departments," and the Attorney General was cited as an example.  When the bill was enacted, the military qualification had disappeared -- the precedents suggested for reasons of policy rather than constitutional compulsion.

Currie goes on to cite presidential power expert Edward Corwin for the proposition that "a vast variety of qualifications" have been imposed by Congress over the years -- which is surely true of more recent practice, but not (I think) of early practice.

Thus I'm inclined to say that the text and early practice indicate that Congress cannot impose meaningful limits on the President's selection.  At least, it seems that Congress should be highly deferential to the President in approving statutory waivers.

12/15/2020

Scott Keller: Qualified and Absolute Immunity at Common Law
Michael Ramsey

Scott A. Keller (Baker Botts LLP) has posted Qualified and Absolute Immunity at Common Law (Stanford Law Review, forthcoming) (47 pages) on SSRN.  Here is the abstract: 

Qualified immunity has become one of the Supreme Court’s most controversial doctrines. But while there has been plenty of commentary criticizing the Court’s existing “clearly established law” test, there has been no thorough historical analysis examining the complicated subject of government officer immunities under nineteenth-century common law. Yet the legitimacy of state officer immunities, under the Court’s precedents, depends on the common law as it existed when Congress passed the Civil Rights Act of 1871. In the Supreme Court’s own words, it cannot “make a freewheeling policy choice” and must apply immunities Congress implicitly adopted from the “common-law tradition.”

This Article therefore provides the first comprehensive review of the common law around 1871 on government officer immunities. In particular, it canvasses the four nineteenth-century treatises that the Supreme Court consults in assessing officer immunity under the common law of 1871: Cooley’s 1879 Law of Torts; Bishop’s 1889 Commentaries on Non-Contract Law; Mechem’s 1890 Law of Public Offices and Officers; and Throop’s 1892 Law Relating to Public Officers. Not only do these treatises collect many overlooked state common law precedents, but they rely heavily on the Supreme Court’s own, often ignored, nineteenth-century decisions.

These historical sources overwhelmingly refute the prevailing view among modern commentators about one critical aspect of qualified immunity. This Article confirms that the common law around 1871 did recognize a freestanding qualified immunity protecting all government officers’ discretionary duties—like qualified immunity today.

But many other important features of the Supreme Court’s current officer immunity doctrines diverge significantly from the common law around 1871: (1) high-ranking executive officers had absolute immunity at common law, while today they have only qualified immunity; (2) qualified immunity at common law could be overridden by showing an officer’s subjective improper purpose, instead of a violation of “clearly established law”; and (3) the plaintiff had the burden to prove improper purpose with clear evidence, while today there is confusion over this burden.

Restoring the common law around 1871 on state officer immunities could address many modern problems with qualified immunity, and these three features from the common law provide a roadmap for reforming qualified immunity. If high-ranking executive officials have absolute immunity, that would sufficiently protect the separation of powers without resort to the “clearly established law” test—which frequently denies plaintiffs money damages when lower-ranking executive officials violate their constitutional rights. At the same time, if plaintiffs in qualified immunity cases have the burden to prove lower-ranking officers’ subjective bad faith with clear and convincing evidence, then officer defendants and courts will have significant procedural mechanisms to dismiss insubstantial claims before trial.

William Baude and James Pfander have responses.  From Professor Baude: Is Quasi-Judicial Immunity Qualified Immunity?  Here is the abstract:

In an important article, Scott Keller argues that in 1871 “the common law definitively accorded at least qualified immunity to all executive officers’ discretionary duties.” This is not correct. The common law did not recognize the doctrine of qualified immunity. It recognized a doctrine of quasi-judicial immunity.

A closer examination of the doctrine of quasi-judicial immunity shows just how distant it was from the modern doctrine of qualified immunity. It protected quasi-judicial acts like election administration and tax assessment, not ordinary law enforcement decisions. It allowed for harsh liability for officers who exceeded their authority. And the defense was not an immunity from suit. Thus, today’s doctrine of qualified immunity owes more to modern judicial invention than it does to the common law.

From Professor Pfander: Zones of Discretion at Common Law, Here is the abstract:

Scott Keller argues in an important forthcoming article that the common law recognized forms of qualified immunity. This reply suggests that Keller’s authorities comprise a body of administrative law, rather than a body of qualified immunity law. Many of the doctrines Keller identifies operate much the way Chief Justice Marshall’s account of judicial review operated in Marbury v. Madison. Marshall acknowledged that matters lawfully assigned to the discretion of the executive branch were beyond the scope of judicial review. But where an official’s lawful discretion ended, and legal boundaries were transgressed, the common law was available (indeed obliged according to Marshall) to supply a remedy. In much of what Keller points to, common law courts were acknowledging that executive officials enjoyed zones of lawful discretion. But the common law did not confer immunity when those boundaries were transgressed.

12/14/2020

A Two Tiered and Categorical Approach to the Nondelegation Doctrine
Mike Rappaport

I have a new essay available on the strict nondelegation doctrine.  The essay offers an approach to the doctrine that avoids the criticism that no workable distinction can be drawn between statutes that permissibly and impermissibly delegate policymaking discretion.  More on this in a future post. 

This essay was written for a book of essays on the nondelegation doctrine to be published by the American Enterprise Institute. Building upon an earlier article, I explore the original meaning of the Constitution’s prohibition on the delegation of legislative power to the executive. I make two main claims.

First, I argue that there is a two tiered nondelegation doctrine, with a strict tier extending to certain areas and a lenient tier extending to other areas. Although the strict tier imposes very substantial restrictions on delegation, the lenient tier does not. The lenient tier covers legislation in various areas, including spending laws, the territories, foreign commerce, and foreign and military affairs. The most important area that is covered by the strict tier is domestic law regulating private rights.

Second, I argue that the strict tier imposes a categorical prohibition on the delegation of policymaking discretion to the executive. Under my approach, the executive does not exercise policymaking discretion when it undertakes law interpretation or genuine fact finding. Such activities may involve some uncertainty, but so long as the executive is genuinely seeking the meaning of the statute or finding facts, it is not exercising policymaking discretion.

Unlike other strict approaches to the nondelegation doctrine that prohibit the executive from being given “too much” policymaking discretion, my approach categorically forbids the executive from being given any policymaking discretion in the areas governed by the strict tier. Thus, my approach avoids criticisms, like that of Justice Scalia, that argue that no distinction in kind can be drawn between statutes that permissibly and impermissibly delegate policymaking discretion.