The Originalism Blog

Marty Lederman on the Unitary ExecutiveMichael Ramsey

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

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

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

 

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

 

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

 

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

Katie Eyer: Title IX in the Age of TextualismMichael Ramsey

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

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

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

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

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

Judge Bumatay Strikes Yet Again in Devas v. AntrixMichael Ramsey

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

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

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

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

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

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

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

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

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

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

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

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

Adam Carrington on William Allen on MontesquieuMichael Ramsey

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

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

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

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

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

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

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

And here is the book description from Amazon:

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

Josh Blackman on the Appeal in the Special Counsel LitigationMichael Ramsey

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

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

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

Our brief makes four primary arguments: ...

And from the brief's summary of argument:

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

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

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

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

Preemption and Trump v. AndersonMichael Ramsey

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Lael Weinberger: The Origins of Church AutonomyMichael Ramsey

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Eric Segall on Justice Jackson and Originalism/TextualismDavid Weisberg

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Gary Lawson: A Framework for Life Without ChevronMichael Ramsey

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

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

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

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

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

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

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

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

Hunter Mason: A Unified Departmentalist Theory of Constitutional InterpretationMichael Ramsey

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

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

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

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

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

And from the introduction:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

And from the conclusion:

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

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

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

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

William Baude & Michael Stokes Paulsen: A Comment on Trump v. AndersonMichael Ramsey

William Baude (University of Chicago - Law School) & Michael Stokes Paulsen (University of St. Thomas School of Law) have posted Sweeping Section Three under the Rug: A Comment on Trump v. Anderson (138 Harvard Law Review (forthcoming 2025)) (43 pages) on SSRN.  Here is the abstract:

In Trump v. Anderson, the Supreme Court was confronted with the explosive question of whether former President Donald Trump was constitutionally disqualified from future office by Section Three of the Fourteenth Amendment. The Colorado Supreme Court had found that he was and consequently held him ineligible for the state’s primary ballot as a matter of state election law. Rarely have the stakes of a constitutional issue been so great. The institutional, political, and personal pressures on the justices presented by Trump v. Anderson were enormous, requiring the justices to rise to the demands of the occasion in a way perhaps unrivaled in the Court’s history.

They did not do so. Unlike some “great cases” of American history, where the press of time and circumstances had the effect of concentrating the judicial mind to produce important landmark constitutional decisions, the Court in Trump v. Anderson produced a flimsy decision in a high-stakes, high-profile, high-intensity case of great importance. Instead of confronting the issues squarely, the Court tried to sweep Section Three under the rug. The Court decided little, in the end, and what it did decide was still flagrantly wrong.

The Court held that states may not enforce Section Three’s disqualifications from office in the context of state election law concerning elections to federal office. That holding is legally indefensible. It fundamentally inverts the Constitution’s text, structure, and history concerning the power of states in presidential elections.  

Yet equally significant is what the Court did not decide. It did not reject the Colorado Supreme Court’s conclusion that Trump is disqualified from future office, under the standards of Section Three. It did not hold that the events culminating in the January 6 attack on the capitol fell short of the constitutional standard for an “insurrection.” It did not reject the Colorado Supreme Court’s conclusion that Trump had “engaged in” that insurrection. It did not question the Colorado courts’ factual findings concerning Trump’s conduct and intent. And–perhaps contrary to initial appearances, and contrary to the critique of the justices concurring in the judgment only–the Court did not hold that Section Three is legally inoperative without enforcement legislation by Congress. Nothing in the case contradicts the conclusions we reached in our prior scholarship, The Sweep and Force of Section Three, on any of these points.

The upshot is that Donald Trump remains constitutionally disqualified from the presidency and may not lawfully serve in that office or any other unless Congress removes the disqualification by two-thirds majorities of both houses. Nothing in Trump v. Anderson changes that legal reality. If Donald Trump was constitutionally ineligible to the presidency on March 3, 2024, the day before the Court’s decision, he remained constitutionally ineligible on March 5, the day after its decision. And he remains ineligible today. A variety of potential avenues to enforce that disqualification remain. Sweeping Section Three under the rug thus may merely have postponed the day of ultimate constitutional reckoning.

Ilya Somin: What the Supreme Court Got Wrong in Trump v. AndersonMichael Ramsey

Ilya Somin (George Mason University - Antonin Scalia Law School) has posted A Lost Opportunity to Protect Democracy Against Itself: What the Supreme Court Got Wrong in Trump v. Anderson (Cato Supreme Court Review, Symposium on the 2023-24 Supreme Court Term, forthcoming) (59 pages) on SSRN.  Here is the abstract:

In Trump v. Anderson, a divided Supreme Court achieved unusual unanimity in an important case. All nine Justices agreed that state governments could not use Section 3 of the Fourteenth Amendment to disqualify former President Donald Trump from running for the presidency in the 2024 election. Section 3, the Court ruled, is not self-enforcing. Unfortunately, the Court achieved unanimity by making a grave error. In so doing, they went against the text and original meaning of the Fourteenth Amendment and undermined a potentially vital constitutional safeguard of liberal democracy.

Section 3 states that “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.” Plaintiffs argued Trump had engaged in insurrection by instigating the January 6, 2021 attack on the Capitol in order to stay in power after losing the 2020 presidential election.        

In this article, I explain what the Court got wrong. I also consider some of the broader issues raised by the case that the Justices did not address because they disposed of the litigation against Trump on the self-enforcement issue. Part I provides a brief overview of the history of the Section 3 litigation against Trump. Part II explains why the Court got the issue of self-enforcement badly wrong. In the process, I also address the argument that disqualification required a prior criminal conviction for “insurrection.” Part III considers the question of whether the January 6 attack qualifies as an “insurrection,” and—more briefly—whether Trump “engaged” in it. The answers to both questions are “yes,” though the second is a closer call than the first.  Part IV addresses broader implications of Section 3 for constitutional democracy. There is an obvious tension between respect for democracy and provisions that limit voter choice, as Section 3 necessarily does. Nonetheless, there is good reason for this and some other constitutional constraints that protect the democratic process against itself. The Supreme Court’s effective gutting of Section 3 gravely weakens one of those constraints. Finally, Part V summarizes the implications of the Trump v. Anderson decision for the future.

Josh Blackman on Fredrick Douglass on John Marshall Harlan and the Civil Rights CasesMichael Ramsey

At Volokh Conspiracy, Josh Blackman: Frederick Douglass Praises the "Courage" Of Justice John Marshall Harlan.  From the introduction:

One of the coolest pieces I saw [on a visit to the University of Louisville] was a letter that Frederick Douglass wrote to Justice Harlan shortly after the Civil Rights Cases (1883) was decided. I encourage you to read the entire letter.... Here is an excerpt:

[Harlan's dissent] seems to me to be absolutely unanswerable and unassailable by any fair argument at any point for there is not a single weak point in it. You had an important and in some respects a difficult and delicate work to do, and you have done it with amazing ability skill and effect. . . . I have nothing bitter to say of your Brothers on the Supreme Bench, though I am amazed and distressed by what they have done. How they could at this day and in view of the past commit themselves and the country to such a surrender of National dignity and duty, I am unable to explain. I have read what they have said, and find no solid ground in it. Superficial and [???], smooth and logical within the narrow circumference beyond which they do not venture, that is all

The post continues:

To this day, I remain convinced that Justice Harlan was correct in the Civil Rights Cases. Had his view prevailed, the Court would have never needed to contort the Commerce Clause in Katzenbach and Heart of Atlanta Motel. And cases like United States v. Morrison would have come out differently. Moreover, if the Civil Rights Act of 1875 had been upheld, we never would have had Plessy, because a segregation law on a public conveyance would have been preempted by the federal bill. Everyone focuses on Plessy, but truly the root cause of the problem was The Civil Rights Cases, and if you want to go back a decade earlier, The Slaughter-House Cases.

Frederick Gedicks: The Myth of Second-Class Free ExerciseMichael Ramsey

Frederick Mark Gedicks (Brigham Young University - J. Reuben Clark Law School) has posted The Myth of Second-Class Free Exercise (Villanova Law Review, Vol. 72, 2025) (48 pages) on SSRN.  Here is the abstract:

Employment Division v. Smith (1990) ended nearly three decades during which the Court purported to apply strict scrutiny to incidental burdens on religion. This period departed from nearly a century during which believers held no special right to disobey laws that bind everyone else, lest each believer become "a law unto himself."

Nevertheless, the belief persists that Smith demoted free exercise to subordinate status. "It is difficult to see," Justice Barrett has observed, "why the Free Exercise Clause--lone among First Amendment Freedoms--offers nothing more than protection from discrimination" (emphasis added). Scholars rushed to endorse Barrett's suggestion that Smith relegated free exercise to second-class status. These "Smith revisionists" variously invoke expressive conduct, compelled speech, expressive association, and content-neutral regulations to show that the Speech Clause protects speech against incidental burdens but not religion.

Like early critics of Smith, the revisionists are wrong. The freedoms of press, speech, and assembly also protect primarily against discrimination. Where they protect liberty interests, so does free exercise. In fact, religious exercise enjoys more liberty protection than other 1st Amendment rights through unique doctrines prohibiting government considerations of religious questions and mandating "most-favored nation" treatment of religion.

I demonstrate that the revisionist premise of second-class free exercise is incorrect as a matter of doctrinal fact. With the Court now poised to abandon Smith, it is crucial that debates about its merits rest on an accurate comparison of the doctrines of free exercise and other 1st Amendment rights. Whatever Smith's flaws, subordinating free exercise is not one of them.

Donald Elliott: Monomaniacal Textualism Undermines Congress's Power of the PurseMichael Ramsey

E. Donald Elliott (Yale Law School; Antonin Scalia Law School) has posted Monomaniacal Textualism Undermines Congress's Power of the Purse (Harv. J. L. & Pub. Pol'y, forthcoming) (17 pages) on SSRN.  Here is the abstract:

No structural principle of our government is more fundamental than that the House of Representatives, the part of our national government closest to the people, controls the "power of the purse" to raise and spend money. However, in  its Consumer Financial Protection Bureau v. Community Financial Services Association of America, Ltd. decision, the U.S. Supreme Court upheld a funding mechanism whose only purpose was to make it more difficult for a future House with a different political composition to use appropriations riders to rein in initiatives by the CFPB with which it disagrees.  The author contends this erroneous result was a consequence of a jurisprudence of "monomaniacal textualism," which carries a reform too far by considering only the wording and history of constitutional provisions but not their purposes.  The article further argues that in considering institutions such as the Administrative State which did not exist at the time the Constitution was adopted, courts should consider the "spirit" as well as the text of the Constitution.  It further argues that courts had been using common law methods to interpret colonial charters for a century and a half prior to the ratification of the Constitution, and that by vesting them with "the Judicial power" the drafters and ratifiers of the Constitution conferred on the courts the power to continue doing so. 

Not sure I see the difference between monomaniacal textualism and just regular textualism.

More from Robert Natelson on Direct Taxes [Updated]Michael Ramsey

At Law & Liberty, Robert Natelson: Direct Taxes and the Founders’ Originalism.  From the introduction:

Professor Donald Drakeman’s response to my essay on direct and indirect taxes presents an opportunity to offer some background on constitutional originalism.

My thesis was that the longstanding uncertainty over the Constitution’s distinction between direct and indirect taxes persists because probative Founding-era evidence continues to be overlooked. In addition to references in eighteenth-century literature, that evidence consists of (1) uncontradicted comments by participants in the ratification debates which mesh well with (2) a plethora of eighteenth-century British and American direct tax statutes. (Detailed citations can be found here and here.)

These sources tell us that direct taxes include capitations and levies on real and personal property (i.e., wealth), income, and occupations. Indirect taxes (duties) include levies on consumption of domestically-sold goods (excises), customs (exactions on imports and exports), and levies on certain other transactions and events.

Professor Drakeman’s response cited his 2013 co-authored article on the 1796 Supreme Court case of Hylton v. United States. The participants in that case included such leading Founders as Alexander Hamilton, James Iredell, and William Paterson. The central issue was whether an annual tax on carriages for personal use was direct or indirect. Professor Drakeman tells us that the disagreements among those directly and more remotely involved in Hylton demonstrate that evidence of original public meaning (the goal of what he calls the “new originalism”) sometimes conflicts. When it does conflict, he favors returning to the intention of the framers, which he calls the “old originalism.”

Professor Drakeman certainly is correct to say that evidence of original meaning sometimes conflicts. His co-authored article is not quite the “deep dive” into the direct-indirect distinction he suggests, but it is an excellent summary of Hylton and the general issues surrounding eighteenth-century excise taxes. I believe his suggestion, however, that Hylton is relevant to originalism, is based on misunderstandings.

As explained below, documentary interpretation during the Founding era was governed by “original understanding originalism.” This approach was different from either the “old” or “new” variety Professor Drakeman identifies. It also is far older than either. But under any version of originalism, the Hylton case is useless, or worse than useless, as evidence of constitutional meaning. It should be disregarded.

Extensive methodological discussion follows, including this observation:

With very rare exceptions, only evidence arising previously to or contemporaneously with the ratification is useful for discerning the content of the ratification bargain. Later evidence is too often adulterated by changed circumstances, altered incentives, failing memories, and absent witnesses.

I wouldn't put it quite so strongly, but I agree post-ratification evidence needs to be treated carefully, for the reasons stated.  (Also I agree that Hylton isn't as important as people think it is.)

(Via Paul Caron at TaxProf Blog.)

UPDATE:  Donald Drakeman has this response on the methodological points: Framers, Founders, and Originalism.

(Thanks to Michael Rosman for the pointer.)

More from Seth Barrett Tillman on Section 3 of the Fourteenth AmendmentMichael Ramsey

At The New Reform Club, Seth Barrett Tillman: Some Thoughts on Scholarship on Section 3 of the Fourteenth Amendment.  An interesting passage:

You might ask why do I take a (or, indeed, any) position in regard to the meaning of the Constitution’s “officer of the United States”-language in 1868, but not in regard to meaning of the Constitution’s “Office ... under the United States”-language in 1868. The reasons are as simple as they are clear. We have Supreme Court cases, scholarship, and other authorities, across the 19th century, before and after 1868, opining on the Constitution’s “officers of the United States”-language, and also because the meaning of “officers of the United States” was defined by the language of the Appointments Clause. Its meaning was fixed and determined by the document to which the 14th Amendment was added. There was no hard intellectual break or interregnum. There was no Year Zero; the Fourteenth Amendment was no tabula rasa.

By contrast, “Office ... under the United States” was a legal, genealogical descendant of “Office ... under the Crown.” That language and its meaning was known to the drafters of the Constitution of 1788 because it was in British statutes, and coordinate colonial era charters, early state constitutions, and colonial and state statutes, as well as in the Articles of Confederation. The Framers of 1787–1788 grew up with this phrase, and they well understood its meaning. But by 1868, after political disunion with Great Britain, after our appeals were no longer taken to the Privy Council, after we established independent bars and independent law schools [in lieu of the Inns of Court in London], after about 80 years had passed, the public and those who drafted, passed in Congress, and ratified the Fourteenth Amendment in the States, during 1866 through 1868, would no longer have had the same prior, formative experiences as those who had Framed the original United States Constitution. Those latter-day Reconstruction era Americans might have understood the same “Office ... under the United States”-language differently from those who had framed the original Constitution of 1788. ...

Steven Hayward on Originalism and Common LawMichael Ramsey

At Law & Liberty, Steven Hayward (Pepperdine - Public Policy): The Return of the Common Law?  From the introduction:

The consensus among legal scholars and media observers is that we have at last arrived at the triumph of “originalism” in our jurisprudence, the culmination of a legal counter-revolution decades in the making. But there seem to be as many versions or shadings of originalism as there are flavors at Baskin-Robbins. Even when the conservative originalist justices of the Supreme Court agree on a holding and doctrine, the jural anchors and lines of reasoning often differ considerably.

Regardless of the lack of a clear center point, the triumph of originalism represents the end of the free-wheeling, result-driven “due process” jurisprudence of the Warren Court, arguably rolling back the judicial odometer to before the “legal realism” of the early twentieth century sanctified the progressive drive for judicial modification of the law to meet “the felt needs” of the time.

Originalist interpretations range between what might be called the “40-yard lines” of strict textualism and “original public meaning.” With the conspicuous exception of Justices Clarence Thomas and Samuel Alito, few Supreme Court justices appear to be comfortable anchoring their reasoning explicitly on old natural law doctrines. But there are some clues that the natural law tradition, and its long centrality in practice in the common law, is slowly making a meaningful comeback.

And in conclusion:

The re-emergence of classic common law treatises looks to be a significant aspect of the story of originalism, by anchoring new originalist rulings to a much longer and older tradition. But there is no guarantee the classic treatises will be correctly understood or applied. This is not a new problem. Chief Justice Morrison Waite, in his majority opinion in Munn v. Illinois that upheld state regulation of grain elevators (1877), arguably misconstrued Matthew Hale’s treatise De Jure Maris about the nature of monopolies, a point the redoubtable Justice Stephen Fields—a firm natural law man—argued in his dissent that relied on first principles.

By degrees, it appears that originalism at the Supreme Court is slowly reviving key aspects of the natural law tradition found in what Jefferson described as “the elementary books of public right.” But it is being done in an indirect or circuitous manner, conspicuously avoiding direct mention of natural law, perhaps because the very idea of human nature itself has become so controversial in our wider culture. The originalist revolution will remain incomplete as long as this reticence persists, even while classic treatises persist, too. Thus originalists of whatever variety should hold off on declaring victory until this encouraging trend fully breaks out of its self-imposed box.

(Thanks to Mark Pulliam for the pointer.)

A possible indicator of the underlying direction of things comes from an unusual recent paper by Dana Neacsu of Duquesne Law School and Paul Douglas Callister of the University of Missouri–Kansas City School of Law, entitled “The Persistent Treatise,” currently available on the Social Science Research Network. The paper attempts a quantitative longitudinal analysis of the citations of legal “treatises” in federal court cases from 1962 through 2022.

Harvey Mansfield on Presidential ImmunityMichael Ramsey

In the Wall Street Journal, Harvey Mansfield: Presidential Immunity From Plato to Trump.  An exceprt:

The executive office, though separate from the legislature, is subordinate to the latter because the former’s duty is to execute, or carry out, the law it doesn’t make. In this old view, it’s better that the executive be plural so that a single person isn’t tempted to become a king. A king is the main danger threatening every republic, and our republic, or democracy, will die should it elect an authoritarian like Mr. Trump who thinks he is king. Here I adapt President Biden’s critique of Trump v. U.S. to the minority opinion in the case.

Against this old-fashioned republican view, the majority rests on the innovation of the Constitution’s framers. It isn’t sufficiently appreciated that the U.S. is the first republic ever to be made with a single strong executive separate from the legislature and not dependent on it. Previously, the last thing a republic would want is a king. With our republic, however, the power of executing was “fortified” (in James Madison’s words) by giving to one person a share in legislation (the veto power), a power to pardon and the role of commander in chief of the military. In Article II the “executive power” is given as a whole with no specification of limited powers as for Congress, and the president takes his own special oath that he will “faithfully execute the office,” not merely the laws.

A republic with a strong executive was a difficult sell in 1787 after the revolution against King George III, whose misdeeds were listed in the Declaration of Independence. But the need for a republican substitute near-king was argued in the Federalist Papers and sealed in its famous statement: “Energy in the executive is a leading character in the definition of good government.” Executive energy must be protected, nourished and given opportunity. And it has been.

This constitutional feature has spread throughout our society in a way we now take for granted. The result is that in the American republic there is a great deal of one-man rule, though it is never called monarchy. One finds it not only in government but also in corporations and even in newspapers and universities. We like to use the word “executive” and never say “king” except in fun or derision. We prefer the energy and unity of monarchy without the name and ceremony. The dissenters in Trump v. U.S., who might be admirers of Franklin D. Roosevelt, speak calmly of the president as if there was nothing of the king about him already before the court awarded him immunity from legal prosecution.

The majority, for its part, also takes for granted the expanded power of the president but wants to secure it through immunity. Now, what can make such a president accountable for his misdeeds? As a last resort another Declaration of Independence might be required, but what does the constitutional system offer before this desperate measure is reached? The voters can decide not to re-elect the offender, of course, and Congress can impeach him. The Roberts opinion briefly mentions impeachment and describes it as a “political process.”

And in conclusion:

A closing thought on accountability through the rule of law: Accountable to whom? To the people? And to whom are they accountable? To no one, it appears, apart from God and future historians. The people vote in secret, and no one watches them as they do. No one accuses the people or gets away with blaming the voters; we look to them as if we were courtiers to a king. If there is criticism, it is sotto voce and directed at other courtiers.

Or perhaps, if the people are like a king, they have a king to whom they look. In their best thinking that would be the greatest American, who was also the greatest president, Abraham Lincoln. He is our democratic king, and he told us two things about the rule of law: First, always obey the law, for how can law rule if we don’t obey? Second, in great emergency, adventurous deeds under the Constitution and seemingly against the rule of law might be needed. These are reserved for people like him in defense of the rule of law. Meanwhile, after this bow to Lincoln, we should thank the Supreme Court for holding an instructive debate on the meaning of the rule of law.

Interesting and balanced, but in the end I don't fund much in support of an originalist presidential immunity.

Rachel Shelden: Finding Meaning in the Congressional GlobeMichael Ramsey

Recently published, in the Journal of American Constitutional History, Rachel A. Shelden (Penn State, history): Finding Meaning in the Congressional Globe: The Fourteenth Amendment and the Problem of Constitutional Archives (2 J. Am. Con. Hist. 715 (2024)) (19 pages).  Here is the abstract:

Few legislative terms left a bigger mark on U.S. constitutional law than the first session of the Thirty-Ninth Congress, which met from December 1865 through July 1866. Although legislative history has become more controversial in modern legal interpretation amid the rise of public meaning originalism, this ses-sion and the men who drafted the Fourteenth Amendment so fundamentally altered the constitutional politics of modern America that their stories remain the subject of deep scholarly interest and fierce debate. InPunish Treason, Reward Loy-alty, Mark Graber takes a comprehensive look at this session through theCongressional Globe—which then served as the “official” records of the legislative branch—to explain the broader constitutional and political considerations of the men who framed the Fourteenth Amendment. Using theGlobe’s text, Graber ar-gues that Sections 2, 3, and 4 were the heart of that amendment, rather than the better-known Section 1. Yet, a closer look at the context in which theCongressional Globeoperated shows that such debates were far from an accurate depiction of con-gressional business. Instead, theGlobe’s pages contained an outsized number of “buncombe” speeches designed for constituents rather than for persuading or ne-gotiating with colleagues; the men who make up Graber’s book used these speeches as a tool of dialogue with the broader public. Ultimately, theGlobe may tell us just as much about the public meaning of the Fourteenth Amendment—and many other constitutional and statutory concerns—as it does about legislative intent.

(Via Larry Solum at Legal Theory Blog, who says "Interesting and recommended.")

Vikram Amar: The Constitution as Client Michael Ramsey

Vikram D. Amar (University of California, Davis - School of Law) has posted The Constitution as Client (UC Davis Law Review, forthcoming) (26 pages) on SSRN.  Here is the abstract:

In this Endowed Lecture, Professor Amar discusses how the Supreme Court bench has become a group of well-credentialed, very smart generalists who are experienced at judging but who lack deep expertise in many areas of law and history, including constitutional law. He observes that, at the same time, the Supreme Court bar is becoming increasingly dominated by very smart lawyers who may be quite knowledgeable about Supreme Court practice and the inclinations of particular Justices, but who also lack deep subject-matter expertise in many crucial areas of legal history and doctrine, including constitutional law. This combination poses distinct challenges and problems for a Court that professes to be guided by originalism, as is illustrated in some recent high-profile rulings. The academy could in theory help provide more of the necessary subject-matter expertise, but if this solution is to work both the Court and the legal academy need to be more open to introspection, and to thinking about the Constitution itself as the client.

Martin Flaherty: Peerless History, Meaningless OriginsMichael Ramsey

Martin Flaherty (Fordham University School of Law) has posted Peerless History, Meaningless Origins (1 Journal of American Constitutional History 671 (2023)) (50 pages) on SSRN.  Here is the abstract:

As with any major law review article, Anthony Bellia and Bradford Clark’s “The International Law Origins of American Federalism," raises the question of whether modern constitutional scholarship is part of the problem, part of the solution, or both. “International Law Origins” qualifies as a representative case study on several grounds. Its authors are prolific constitutional scholars who teach at elite law schools. The piece itself appears in the Columbia Law Review, not only one of the nation’s leading law journals, but one that frequently features constitutional history. As is typical of constitutional history in law reviews especially, Bellia and Clark offer an original, indeed revisionist, argument about major aspects of the Founding. Finally, and perhaps most importantly, the authors self-consciously offer their insights to the Supreme Court as an originalist basis for several important areas of current and controversial doctrine. This essay will consider “International Law Origins” mainly in the broader context of originalist legal scholarship and its relationship as an appeal to historical expertise. Part I reviews the rise of such scholarship in response to the emergence of modern originalism, with a focus on its relation and reception among professional historians. In Part II, this essay considers the historical standards that constitutional historians have proposed and how those standards might usefully be applied to originalist scholarship. Among other things, this essay will suggest when certain presumptions should be applied against originalist accounts and how these might be rebutted. Part III then considers whether those presumptions should apply against “International Law Origins.” Next, in Part IV, the essay will briefly consider whether those presumptions have been overcome in this case, leaving the more direct and detailed work to the other scholars in this issue. Finally, this essay will conclude with a reconsideration of the feasibility of originalism as a method of constitutional interpretation. 

More from Mark Pulliam (and others) on NullificationMichael Ramsey

At Law & Liberty, Mark Pulliam wraps up a forum on nullification with a response to commentators.  Here are the contributions:

Nullification of the Constitution by Mark Pulliam

Nullification and Ultimate Authority by John G. Grove

America the Compact by Tom Woods

To Restore Republicanism by Forrest A. Nabors

E Pluribus Unum by Mark Pulliam

From the response:

I am flattered that my essay received the thoughtful attention of a trio of fine scholars, who raise many interesting points and offer three distinct perspectives. American history is rich in nuance and has unfolded in a fascinating series of complex vignettes—fodder for generations of historians. Alas, the subject of my lead essay was ultimately quite narrow—and purely legal: Does the Constitution authorize individual states unilaterally to declare federal laws unconstitutional, and to resist their enforcement on that ground? The answer is no, and my respondents do not raise any serious arguments to the contrary. Yes, states can—and do—protest, complain, and lobby against objectionable federal laws. James Madison called this “interposition.”

Prior to ratification of the Seventeenth Amendment, the states’ political opposition to federal laws had substantial force. I have no beef with “interposition” or other forms of political opposition to federal laws. Nullification—meaning outright defiance, such as Arkansas Governor Orval Faubus’s resistance to Brown v. Board of Education—is a different matter. That is what this debate is about.

The concept of nullification by the states is nowhere mentioned in the Constitution, was not raised during the Constitutional Convention in 1787, is not contemplated in the pro-ratification Federalist essays, and is contradicted by over 200 years of Supreme Court decisions. In fact, the Constitution was adopted, following nearly a decade under the dysfunctional Articles of Confederation, precisely to replace the unworkably loose confederation with a strong central government. Thus, nullification advocates are left to read the “tea leaves”—fragments of history and out-of-context quotes from various founding-era figures supposedly supporting the notion that individual states have veto power over federal laws. Their case is unconvincing....

RELATED:  My earlier post on U.S. v. Missouri.  I think (contra the Eighth Circuit) that states are entitled to say that in their view a federal law is unconstitutional and to refuse to cooperate in its enforcement on that ground.  On the Faubus example, I think states are not entitled to affirmatively interfere with enforcement of a federal law the courts have found to be constitutional (even if they think it is unconstitutional).  I'm less sure about some intermediate situations.

Most Cited Originalist-Oriented Scholars [Corrected]Michael Ramsey

At Brian Leiter's Law School Reports, Professor Leiter has a list of the 20 most-cited constitutional law scholars over the last five years (2019-2023), based on data assembled by Gregory Sisk et al.  At least eight of the twenty are strongly originalist-oriented scholars:

3. Jack Balkin (Yale) 1800

6. Akhil Amar (Yale) 1430

7.  William Baude (Chicago) 1190

9.  Michael McConnell (Stanford) 1080

11.  Randy Barnett (Georgetown)  990

12.  Lawrence Solum (Virginia) 980

14.  Steven Calabresi (Northwestern) 890

20.  Keith Whittington (Yale)  710

(I say "at least" because I'm not sure how to classify Bruce Ackerman, who's also on the list at #10.)

Using the same methodology, here are additional highly cited originalist-oriented constitutional law scholars (min. 400 citations):

Gary Lawson (Florida) 800 [not sure why he's not on Professor Leiter's list, but perhaps he is considered primarily an administrative law scholar]

Saikrishna Prakash (Virginia) 660

John McGinnis (Northwestern) 660

John Yoo (Berkeley) 640

Caleb Nelson (Virginia) 620

Larry Alexander (San Diego) 600

Josh Blackman (South Texas)  580

Ilya Somin (George Mason)  570

Philip Hamburger (Columbia) 560

Stephen Sachs (Harvard) 530

Michael Paulsen (St. Thomas)  500

John Harrison (Virginia) 440

Michael Rappaport (San Diego) 440

I have probably forgotten someone (apologies and please let me know).

CORRECTION:  Yes, I did forget someone.  Updated to add Ilya Somin (George Mason).

Nicholas Parrillo: Foreign Affairs, Nondelegation, and Original MeaningMichael Ramsey

Nicholas R. Parrillo (Yale Law School) has posted Foreign Affairs, Nondelegation, and Original Meaning: Congress's Delegation of Power to Lay Embargoes in 1794 (University of Pennsylvania Law Review, Volume 172, pp. 1803-1843 (2024)) (41 pages) on SSRN.  Here is the abstract:

Originalist proponents of a tougher nondelegation doctrine confront the many broad delegations that Congress enacted in the 1790s by claiming that each fell into some exceptional category to which the original nondelegation doctrine was inapplicable or weakly applicable, one being foreign affairs.  There is lively debate on whether the founding generation actually recognized an exception to nondelegation principles for foreign affairs.  This Article, commissioned for a symposium on “The Statutory Foreign Affairs Presidency,” intervenes in the debate by examining the Embargo Authorization Act of 1794, which empowered the President to lay an embargo on all ships in U.S. ports (and/or other classes of ships) if “the public safety shall so require,” for the upcoming five-month congressional recess.  This was a delegation of remarkable power over the U.S. economy, which at the time depended heavily on maritime transport. 

An examination of the Act undermines the idea that there existed a foreign-affairs exception to cover it.  Originalist proponents of a tougher nondelegation doctrine claim the doctrine was meant to protect private individual rights of liberty and property, yet Americans in the late 1700s lived in an economy that was more dependent on foreign commerce than it has ever been since, in which a five-month international embargo could be disastrous for private business nationwide.  In this context, an “exception” for foreign affairs would be strange, turning economic reality on its head.  Furthermore, the Act itself flouted any objective or even workable distinction between the foreign and the domestic.  The Act’s unqualified use of the term “embargo” authorized the President to prohibit the departure of all ships, not only those sailing to foreign ports but also to other U.S. ports in the coastwise trade, which was then the main channel of U.S. domestic commerce.  And even if the President were to impose an embargo aimed mainly at international maritime trade, preventing evasion of such a restriction required regulation of the coastwise trade—regulation that contemporaries apparently understood the Act to authorize.  

This paper has some relationship with my recent paper (with Matthew Waxman) on delegating war powers.  We are also skeptical of an originalist case for a "foreign affairs exception" to nondelegation rules.

Mike Rappaport adds: This paper also has some relationship with two of my papers, but the opposite relationship that Mike Ramsey notes.  In these two papers, I defend applying a foreign affairs exception to the nondelegation doctrine.  See A Two Tiered and Categorical Approach to the Nondelegation Doctrine and The Selective Nondelegation Doctrine and Line Item Veto.  

Aditya Bamzai & Saikrishna Prakash: How to Think About the Removal PowerMichael Ramsey

Recently published, in the Virginia Law Review Online, Aditya Bamzai & Saikrishna Prakash: How to Think About the Removal Power (110 Va. L. Rev. Online 159 (2024)).  Here is the abstract:

In an earlier article titled The Executive Power of Removal, we contended that Article II gives the President a constitutional power to remove executive officers, at least those who are presidentially appointed. In this Essay, we expand on, and reply to a critique of, that article. We discuss the meaning of the clause vesting “executive Power” in the President and the clause authorizing Congress to make laws “necessary and proper for carrying into Execution” the powers of the federal government. We contend that the former vests authority to remove in the President and the latter does not allow Congress to treat that allocation of authority as a default. We discuss how constitutional developments in the Commonwealth of Pennsylvania—specifically, a 1784 report authored by the Council of Censors—support our understanding of the federal Constitution’s text and structure. We also discuss early practice under the federal Constitution—specifically, high-profile instances where presidents removed executive subordinates without Senate participation. These sources and episodes, along with those we discussed in our previous article, support the conclusion that the Constitution confers on the President the authority to remove presidentially appointed executive officers.

The authors' initial article is Aditya Bamzai & Saikrishna Bangalore Prakash, The Executive Power of Removal, 136 Harv. L. Rev. 1756 (2023).  The response, to which this article is in turn responding, is Andrea Scoseria Katz & Noah A. Rosenblum, Removal Rehashed, 136 Harv. L. Rev. F. 404 (2023).

And from the introduction (footnotes omitted):

In this Essay, we reply to a critique of [the authors' previous] article—Removal Rehashed by Professors Andrea Katz and Noah Rosenblum. We part ways with their analysis in several significant respects. But despite our disagreements, we are grateful for the chance to sharpen our own thinking on these issues. Just as the hammer and the anvil forge the metal, so too in the realm of intellectual discovery the critic forces the author to refine arguments that would otherwise remain untested. In that spirit, we offer this reply. We continue to believe that, although our theory is not the only one possible, it best fits text, structure, history, and early practice, and is therefore preferable to the alternatives.

In contrast to our views, Katz and Rosenblum reject altogether the notion that the Constitution confers a removal power on the President. Starting from that perspective, they advise that readers “will find little new” in our article. To be sure, if one starts from the premise, as Katz and Rosenblum do, that it is “intellectually indefensible” to believe that Article II grants a presidential removal authority, then we agree: there is nothing to see here. But for those who are more open-minded about one of the most significant (and historically, most debated) questions of the separation of powers, read on. The case for a presidential removal power is stronger than they are willing to acknowledge.

Consider, for example, one of Katz and Rosenblum’s claims about the historical pedigree of the President’s removal authority. They contend that “[t]he historian might wonder why th[e] argument [for an executive power of removal,] if once so widespread, disappeared so quickly.”  To support their claim that the argument for a removal power “disappeared so quickly,” Katz and Rosenblum rely on a quotation from a 1916 book by Frank Goodnow providing that courts “have held that [the Vesting Clause] has little if any legal effect, and that for the most part it is to be explained by the powers which are later specifically mentioned.” But Katz and Rosenblum’s use of this quotation does not properly characterize Goodnow. Two pages after the quoted language, Goodnow explained that the “practice” with respect to removal is “that the President has the power to remove arbitrarily almost all civil officers of the United States, not judges. This power has been recognized as belonging to the President as a part of the executive power granted to him.” Rather than demonstrating the “disappearance” of an “executive power of removal,” Goodnow’s 1916 book demonstrates how into the twentieth century, it was widely recognized that Article II conferred removal power on the President. Professor Goodnow once remembered what some modern historians have forgotten.

As we discuss below, this is not the only occasion where we part ways with Katz and Rosenblum’s characterization of our article or the underlying sources. ...

Federal Supremacy and U.S. v. MissouriMichael Ramsey

Via Jonathan Adler at Volokh Conspiracy, in a recent decision in U.S. v. Missouri the Eighth Circuit invalidated Missouri's  so-called gun sanctuary law as violating the supremacy clause. As Chief Judge Colloton explained for the court:

Missouri's Second Amendment Preservation Act classifies various federal laws regulating firearms as "infringements on the people's right to keep and bear arms, as guaranteed by Amendment II of the Constitution of the United States and Article I, Section 23 of the Constitution of Missouri." The Act declares that these federal laws are "invalid to this state," "shall not be recognized by this state," and "shall be specifically rejected by this state."

... The Act imposes a “duty” on “the courts and law enforcement agencies of this state to protect the rights of law-abiding citizens . . . from the infringements defined under section 1.420.” The Act also mandates that “[n]o entity or person, including any public officer or employee of this state or any political subdivision of this state, shall have the authority to enforce or attempt to enforce” a federal law that “infring[es] on the right to keep and bear arms.”

Also at Volokh Conspiracy, Ilya Somin objects that all the statute does is refuse to allow state officials to enforce federal law, which states are constitutionally entitled to do.  It shouldn't matter why the state decides to act as it does -- that is, whether it thinks federal firearms laws are unconstitutional or just bad policy -- as long as the state's actions themselves are constitutional (which they are).

I agree, but I wonder if there isn't something more fundamentally wrong with the court's conclusion.  The opinion rests on the following core proposition: 

The Supremacy Clause states that federal law is “the supreme Law of the Land, . . . any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” U.S. Const. art. VI, cl. 2. “By this declaration, the states are
prohibited from passing any acts which shall be repugnant to a law of the United States.” McCulloch v. Maryland, 7 U.S. (4 Wheat.) 316, 361 (1819). The “Second Amendment Preservation Act” states that certain federal laws are “invalid to this state,” Mo. Rev. Stat. § 1.430, but a State cannot invalidate federal law to itself.

That first sentence, though, is not correct. The Supremacy Clause states that federal law made in pursuance of the Constitution is “the supreme Law of the Land, . . . any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”  Federal laws not passed in pursuance of the Constitution -- that is, unconstitutional laws -- are not part of the supreme law of the land.  (See Hamilton's discussion in Federalist 34, noting that Article VI "expressly confines this supremacy to laws made pursuant to the Constitution") (emphasis in original)). So the second sentence, quoting McCulloch, is only right if one reads it to say "the states are prohibited from passing any acts which shall be repugnant to a constitutional law of the United States."

That being so, at minimum I don't see how Missouri's law is a constitutional problem unless the federal laws it targets are in fact constitutional.  That is, I don't see how the court can resolve this case against Missouri without reaching the merits of the Second Amendment issue.  (On the merits, Missouri's law seems way too broad, but that's a different question.)

Alison LaCroix: Dispatches From Amendment ValleyMichael Ramsey

Alison L. LaCroix (University of Chicago Law School) has posted Dispatches From Amendment Valley (California Law Review, forthcoming) (28 pages) on SSRN.  Here is the abstract:

Professor Jill Lepore’s Jorde Lecture seeks to broaden our understanding of what qualifies as constitutional debate by looking to “the philosophy of amendment.” In this essay, I offer a different account of how amendments fit into U.S. constitutional history. I argue that the six decades between the ratification of the Twelfth Amendment in 1804 and the Thirteenth Amendment in 1865 did not, as is commonly assumed, constitute a gap in national-level constitutional change. Examining the full sweep of the constitutional landscape between the War of 1812 and the Civil War shows that the Constitution was undergoing profound shifts in meaning. These inter-amendment decades overlap with the period of my recent book, The Interbellum Constitution: Union, Commerce, and Slavery in the Age of Federalisms. The central claim of the book is that the decades between 1815 and 1861 – which I call the “interbellum period” – witnessed profound constitutional transformations, especially regarding the nature of the Union. A crucial domain in which this change occurred was Congress’s power to regulate commerce among the states, with foreign nations, and with Native nations. This change occurred not through text, but through debate. Early-nineteenth-century Americans did not feel bound to accept the textual Constitution as they inherited it. By de-sacralizing our view of how early-nineteenth-century Americans understood the Constitution, we discover that they were incessantly discussing ways to amend it. Ultimately, however, they saw the text of the Constitution as a relatively unimportant site of constitutional change. Instead, they prioritized argument, oratory, and practice.

Matthew Schafer on Eugene Volokh on the Press ClauseMichael Ramsey

Matthew Schafer (Paramount Global; Adjunct, Fordham University School of Law) has posted "The Press": A Response to Professor Volokh (69 pages) on SSRN.  Here is the abstract:

For more than a decade, Professor Eugene Volokh’s article—Freedom For The Press As An Industry, Or For The Press As A Technology? From The Framing To Today—has been recognized as the authoritative work on the meaning of press freedom at the Founding. In it, Volokh argued that the Press Clause’s reference to “the Press” meant the printing press as a technology rather than as the journalistic enterprise we recognize today. On that basis, he concluded that the Founding generation understood the Press Clause not as providing special rights for the institutional press but as securing every man’s right to use the printing press. Those in favor of a Press Clause that specially protected the press, he said, must look elsewhere than the text or history of that Clause. 

This Article calls Volokh’s into doubt. By examining his sources and reasoning, I show how he misunderstood the historical record and drew conclusions unsupported by it. Specifically, Volokh’s inquiry suffered from three problems: conceptual (defining “the Press” does not define the meaning of the Press Clause at the Founding), evidentiary (too little, too unpersuasive), and methodological (he followed none). I then explain that two premises on which Volokh based his article—that the newspaper industry at the Founding was insignificant and practiced no real journalism—are contrary to the historical record and academic consensus. Contrary to Volokh’s view that press-specific rights are a modern invention, I finally provide examples of them from the Founding era and posit that early Americans recognized such rights because they understood them ultimately to inure to the benefit of the public in the form of the news. The news, in turn, helped secure public liberty. I close by calling on Volokh to revisit his thesis.

(Via Karen Tani at Legal History Blog)

(Aside: Matthew Schafer is not my casebook co-author Matthew Schaefer.)