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Ilan Wurman in The Weekly Standard (Jun 25, 2012, Vol. 17, No. 39): Framers of Mind: A constitutional scholar asks: What were they thinking? (discussing Jack Balkin's Living Originalism).
With most commentators focused on the Supreme Court's decision in the health care cases, I thought it might be useful (or at least a change of pace) to mention the Court's other big decision from yesterday, United States v. Alvarez. The Court (plurality by Justice Kennedy, plus a two-Justice concurrence-in-judgment by Justices Breyer and Kagan) invalidated the federal Stolen Valor Act, which made it a crime to lie about one's military honors, under the First Amendment. Justice Alito, joined by Scalia and Thomas, dissented.
Two comments from an originalist perspective. First, the case gets framed in a way that is reasonably conducive to a textualist/originalist approach (leaving aside -- not surprisingly -- Breyer's concurrence). From the introduction to Kennedy's substantive discussion (quotations and citations omitted):
As a general matter, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content. As a result, the Constitution demands that content-based restrictions on speech be presumed invalid and that the Government bear the burden of showing their constitutionality.
In light of the substantial and expansive threats to free expression posed by content-based restrictions, this Court has rejected as startling and dangerous a free-floating test for First Amendment coverage based on an ad hoc balancing of relative social costs and benefits.
Instead, content-based restrictions on speech have been permitted, as a general matter, only when confined to the few historic and traditional categories of expression long familiar to the bar.
That seems right in acknowledging the core textualist point that the First Amendment appears absolute on its face and the core historical point that founding-era practice included well-established speech restrictions that no one at the time found problematic.
Alito's dissent uses the same starting point, but the opinions diverge on whether there is an applicable "historic and traditional categor[y] of expression" that encompasses false speech as a general matter. Kennedy says no: there may be some loose language to that effect in prior opinions, but the only solid historical false-speech exceptions are in particular contexts such as libel, perjury or fraud. None of the specific categorical exceptions covers the speech involved in Alvarez, and there is (he says) no broad categorical exception. Alito, in contrast, finds that there is a broad categorical exception for false statements, resting in part on a generalization from the historical examples of libel, perjury and fraud.
From an originalist perspective that seems basically the right framework, although I would say (originally speaking) the exceptions should be rooted in founding-era practice (a point that Kennedy does not make directly and that, as discussed below, Alito ultimately rejects). Still, the core originalist question seems roughly replicated in the debate between Kennedy and Alito: do the acknowledged First Amendment exceptions for false statements (libel, perjury, fraud and the like) represent isolated categories, or are they specific manifestations of a broader category encompassing all false statements? And absent historical evidence of a broader category, it seems exceptions should be limited to what we can actually observe in the founding era. But as discussed on this blog on other occasions, our knowledge of speech regulations in the founding era is underdeveloped. Thus the framework seems right, but Kennedy's conclusion is at least open to challenge upon the uncovering of contrary evidence.
My second point, though, is that Justice Alito's dissent does not find any founding-era evidence, and indeed rejects the idea that it needs to. Here is the core of his analysis on the point:
[M]any kinds of false factual statements have long been proscribed without raising any Constitutional problem. Laws prohibiting fraud, perjury, and defamation, for example, were in existence when the First Amendment was adopted, and their constitutionality is now beyond question. [Ed.: so far, so good.]
We have also described as falling outside the First Amendment’s protective shield certain false factual statements that were neither illegal nor tortious at the time of the Amendment’s adoption. [Ed.: this is where originalists should get worried.] The right to freedom of speech has been held to permit recovery for the intentional infliction of emotional distress by means of a false statement even though that tort did not enter our law until the late 19th century. And the Court [has] concluded that the free speech right allows recovery for the even more modern tort of false-light invasion of privacy.
In line with these holdings, it has long been assumed that the First Amendment is not offended by prominent criminal statutes with no close common-law analog. The most well known of these is probably 18 U. S. C. §1001, which makes it a crime to “knowingly and willfully” make any “materially false, fictitious, or fraudulent statement or representation” in “any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States.” Unlike perjury, §1001 is not limited to statements made under oath or before an official government tribunal. Nor does it require any showing of “pecuniary or property loss to the government.” United States v. Gilliland, 312 U. S. 86, 93 (1941). Instead, the statute is based on the need to protect “agencies from the perversion which might result from the deceptive practices described.” Ibid. (emphasis added).
Still other statutes make it a crime to falsely represent that one is speaking on behalf of, or with the approval of, the Federal Government. See, e.g., 18 U. S. C. §912 (making it a crime to falsely impersonate a federal officer); §709 (making it a crime to knowingly use, without authorization, the names of enumerated federal agencies, such as “Federal Bureau of Investigation,” in a manner reasonably calculated to convey the impression that a communication is approved or authorized by the agency). We have recognized that §912, like §1001, does not require a showing of pecuniary or property loss and that its purpose is to “maintain the general good repute and dignity” of Government service. United States v. Lepowitch, 318 U. S. 702, 704 (1943). All told, there are more than 100 federal criminal statutes that punish false statements made in connection with areas of federal agency concern.
These examples amply demonstrate that false statements of fact merit no First Amendment protection in their own right.
I don't see how the last statement follows from the previous discussion. At most, Justice Alito has shown that some kinds of speech that wasn't (or may not have been) considered wrongful at the founding have been prohibited in recent times (or at least in what originalists would consider recent times), and some of that speech involved false statements (though of a different kind than occurred in the present case).
A better way to put it, I think, would be to say that the Court has created some categorical exclusions from First Amendment protection that aren't rooted in founding-era practice, so the Court can create one here too. But that still doesn't explain why the Court should create one: doing so, it seems, rests on Justice Alito's view of policy.
This approach is consistent with Justice Alito's previous views of the First Amendment, and perhaps with his emerging non-originalist views more generally. It's more surprising that Justice Scalia and (even more so) Justice Thomas agreed. Scalia, it is true, is influenced by precedent and customary practices, but I don't see that the dissent has any holdings (as opposed to general statements) in support, and the customary practices it mentions seem to involve distinct statutes and concerns. Thomas, who feels less constrained by precedent and practice, is even more of a puzzle. The dissent has nothing from the founding era that would allow it to generalize from the specific instances of libel, perjury, fraud, etc., to an broader no-false-statements rule; that being so, I'm unclear why Thomas would think it persuasive.
(To be clear, I'm not saying an originalist case for the dissent couldn't be made -- just that the dissent doesn't make it).
Benjamin Silver: Jurisprudence as Activism: A review of Cosmic Constitutional Theory by J. Harvie Wilkinson III (at Counterpoint: The University of Chicago's Conservative Quarterly).
RELATED: David Bernstein asks:
Has there been a single pundit from the liberal left who has proactively denounced the Supreme Court for undue “activism” if it invalidates the individual mandate who has also denounced the Supreme Court for activism for invalidating most of Arizona’s immigration-enforcement statute?
Continuing the discussion on the President' s power to not enforce the law, Jeffrey Love adds this comment by way of clarification:
I'm writing to clarify my point, which I realize now was entirely unclear:
I think we [ed.: he and co-author Arpit Garg in this article] basically agree with your response to Professor Somin that there must be some limits to what the President can call an exercise of prosecutorial or executive discretion--whether those limits are found in Article II or elsewhere. But regarding the speeding example, what if we replaced "prosecute" with "regulate"? Then it seems like the President goes beyond the literal grant of power in congressional statutes all the time. In fact, that's (part of) Jerry Mashaw's explanation for the rise of the administrative state.
That leads to one of the big issues we address in our paper, and the point I was trying to get at with my admittedly ill-conceived speeding question: lots of people criticize over-enforcement, but few think about the parallel problem of under-enforcement. There may be something in Article II that distinguishes action from inaction, but the confusion that you outlined in your original post suggests that no one has provided a definitive account yet.
In the meantime, Arpit and I look to Madison's functional theory of the separation of powers for guidance. Based on his story, there's no reason we should treat action and inaction as presenting wholly different separation of powers problems, and yet as the article argues, scholars and the courts have done just that. (We go on to explore the structural consequences of that fact in the paper.)
Mike Rappaport comments that Justice Scalia, in the course of his dissent in Arizona v. United States, appears to find federal power over immigration as an inherent power of sovereignty derived from international law. From the dissent:
I accept that as a valid exercise of federal power—not because of the Naturalization Clause (it has no necessary connection to citizenship) but because it is an inherent attribute of sovereignty no less for the United States than for the States. As this Court has said, it is an “‘accepted maxim of international law, that every sovereign nation has the power, as inherent in sovereignty, and essential to self-preservation, to forbid the entrance of foreigners within its dominions.’” Fong Yue Ting v. United States, 149 U. S. 698, 705 (1893) (quoting Ekiu v. United States, 142 U. S. 651, 659 (1892)). That is why there was no need to set forth control of immigration as one of the enumerated powers of Congress, although an acknowledgment of that power (as well as of the States’ similar power, subject to federal abridgment) was contained in Art. I, §9, which provided that “[t]he Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight . . . .”
Professor Rappaport says:
Sorry, but that is inconsistent with Scalia’s principles and he should know better. What international law says about the United States is not the relevant question, as Justice Scalia has often stated. If the federal government had a general power over immigration, it would have been listed as an enumerated power. And the Tenth Amendment confirms that.
I agree. I'm sorry to see Scalia seduced by the extra-legal idea of inherent powers (which, once accepted, can be stretched to include all sorts of things one might like the national government to do but don't fit comfortably within the enumerated powers).
I'll add one further point. Scalia is wrong about international law. It's true that eighteenth-century international law saw exclusion of aliens as an attribute of sovereignty. But in the U.S. system the national government is not the exclusive sovereign (as Scalia surely believes -- indeed, that's the central point of his dissent). The national government has a share of sovereignty, the states have a share of sovereignty, and ultimate sovereignty rests with the people. Thus the people can, via the Constitution, distribute sovereignty in any way they wish. They could, for example, by constitutional amendment prohibit the national government from adopting any restrictions on immigration. (In fact, the Constitution did so, prior to 1808, in the clause Justice Scalia himself cites). That would not make the United States less sovereign from an international perspective, although it would mean that its national government couldn't exercise one of the common rights of sovereignty. International law has absolutely nothing to say about the internal allocations of sovereign power within a nation.
At Library of Law and Liberty, Lee J. Strang: Why Originalism Needs the Virtues.
I have not a chance to fully digest the Supreme Court’s new decision in Arizona v. US, which held that three of the four challenged Arizona provisions were preempted by federal law. But I do have some initial reactions.
1. The line up of the justices seems significant. The three conservatives dissented, but Chief Justice Roberts joined the majority. Had the Chief Justice voted with his ordinary political allies, that would have left the Court tied at 4-4 (because Justice Kagan was recused.) One might speculate – and I should emphasize the italicized term – that the Chief Justice switched his vote for some specific reason. Two possible reasons come to mind. First, it sometimes thought that a 4-4 split (which would not have been a precedent but would have left the Ninth Circuit decisions in place) is a failure of the Court. The Chief might have thought that avoiding that failure, which would have been largely caused by ideological differences, would reflect especially on him, as he has emphasized the institutional need for agreement by the justices. Second, one might guess even more speculatively that, if the Chief Justice is writing the decision striking down the mandate in the health care case, he would want to help the Administration in this case to soften the blow. Legal realism ain’t pretty, but much of the real world isn’t.
2. It seems significant that each of the three conservative dissenters – Scalia, Thomas, and Alito – wrote separately and did not join one another’s opinions. This reflects a large degree of disagreement. If one adds that the Chief Justice was in the majority, then all four conservatives took somewhat different positions. I have some thoughts below on why this may have happened.
3. Justice Scalia wrote a spirited dissent, arguing that all four Arizona provisions should have been upheld. Most interesting from my perspective was Justice Scalia’s views on the Constitution’s original meaning. He quite rightly in my view initially questioned the federal government’s general authority to regulate immigration. That also led him to recognize, again rightly in my view, that the states would then enjoy more power over immigration.
But unfortunately Justice Scalia then dropped the ball. While he recognized that Congress first passed a general immigration law first only in 1882, he wrote:
I accept that as a valid exercise of federal power—not because of the Naturalization Clause (it has no necessary connection to citizenship) but because it is an inherent attribute of sovereignty no less for the United States than for the States. As this Court has said, it is an “‘accepted maxim of international law, that every sovereign nation has the power, as inherent in sovereignty, and essential to self-preservation, to forbid the entrance of foreigners within its dominions.’” Fong Yue Ting v. United States, 149 U. S. 698, 705 (1893) (quoting Ekiu v. United States, 142 U. S. 651, 659 (1892)). That is why there was no need to set forth control of immigration as one of the enumerated powers of Congress, although an acknowledgment of that power (as well as of the States’ similar power, subject to federal abridgment) was contained in Art. I, §9, which provided that “[t]he Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight . . . .”
Sorry, but that is inconsistent with Scalia’s principles and he should know better. What international law says about the United States is not the relevant question, as Justice Scalia has often stated. If the federal government had a general power over immigration, it would have been listed as an enumerated power. And the Tenth Amendment confirms that. As I have stated before, the Migration and Importation Clause does not acknowledge a general immigration power, but is best read as merely recognizing that Congress has some power over immigration through its Commerce Clause authority.
4. What accounts for Scalia’s mistake here? Here is one speculation. Scalia’s reaction to the Supreme Court’s nonoriginalism depends on when it occurred. The most recent nonoriginalism – of the Warren and Burger Courts – is disliked most strongly by Scalia. The earlier nonoriginalism of the New Deal is more approved of by Scalia, at least as a matter of precedent. Finally, the 19th Century nonoriginalism of the inherent powers doctrine – one of the earliest nonoriginal doctrines – gets the strongest nod, accepted not merely as precedent but also as the original meaning, despite the weakness of the case.
5. Justice Scalia also criticizes the majority and the Obama Administration for arguing that state enforcement of federal immigration laws is preempted because it conflicts with executive branch priorities. President Obama’s new immigration policy is based on the idea that the federal government has limited resources to enforce the immigration laws. Arizona seeks to help them enforce the law, with an offer that calls the Administration’s bluff. The Administration is saying: “No thanks, we don’t want the help. We like the discretion.”
Justice Scalia writes: “But to say, as the Court does, that Arizona contradicts federal law by enforcing applications of the Immigration Act that the President declines to enforce boggles the mind.” I am sympathetic to Scalia here, although the Administration could be right if the Congress had expressed a preference for executive branch discretion and against state assistance.
6. Interestingly, Justice Thomas did not join Scalia’s opinion, even though Thomas largely agrees with Scalia on the preemption questions. One interesting possibility is that Thomas did not join Scalia because Thomas does not agree that the federal government has, as an original matter, the power to regulate immigration as part of its inherent sovereignty.
7. Finally, Justice Alito writes separately from both Thomas and Scalia. Part of the reason is that Alito has a different bottom line. Alito believes that Section 3 of the Arizona Act, which provides that an alien who willfully fails “to complete or carry an alien registration document” in violation of federal law is guilty of a misdemeanor under state law. Justice Alito’s view is that the Supreme Court’s 1941 decision in Hines v. Davidowitz required this conclusion. According to Alito, Hines had said that Congress had enacted a complete scheme of alien registration and therefore state laws could neither interfere with or complement that scheme.
Justice Alito’s opinion is written in the language of precedent and institutionalism that we have come to expect from him. He seems happy to avoid Justice Scalia’s originalism and to continue the development of his own distinctive style of reasoning.
(Cross-posted on the Liberty Law Blog)
In response to this post on "Fast and Furious" and executive privilege (in which I asked how Congress had a power to demand documents in the first place), Brett Bellmore writes:
Where does Congress get the power to order the Attorney General to deliver internal executive branch documents? From 2 U.S.C. §§192 and 194?
"Every person who having been summoned as a witness by the authority of either House of Congress to give testimony or to produce papers upon any matter under inquiry before either House, or any joint committee established by a joint or concurrent resolution of the two Houses of Congress, or any committee of either House of Congress, willfully makes default, or who, having appeared, refuses to answer any question pertinent to the question under inquiry, shall be deemed guilty of a misdemeanor, punishable by a fine of not more than [$100,000] nor less than $100 and imprisonment in a common jail for not less than one month nor more than twelve months. ...
"Whenever a witness summoned as mentioned in Section 192 of this title fails to appear to testify or fails to produce any books, papers, records, or documents, as required, or whenever any witness so summoned refuses to answer any question pertinent to the subject under inquiry before either House, or any joint committee established by a joint or concurrent resolution of the two Houses of Congress, or any committee or subcommittee of either House of Congress, and the fact of such failure or failures is reported to either House while Congress is in session or when Congress is not in session, a statement of fact constituting such failure is reported to and filed with the President of the Senate or the Speaker of the House, it shall be the duty of the said President of the Senate or Speaker of the House, as the case may be, to certify, and he shall so certify, the statement of facts aforesaid under the seal of the Senate or House, as the case may be, to the appropriate United States attorney, whose duty it shall be to bring the matter before the grand jury for its action."
Well, sure, but are those statutes constitutional? Congress is giving itself a power that is not obviously a "legislative" (lawmaking) power (and further giving that power to committees acting according to their own rules of procedure rather than to Congress as a whole acting through Article I, Section 7). Mr. Bellmore's implication, I suppose, is that these provisions are "necessary and proper" to Congress' enumerated powers -- though note that the statute he quotes doesn't limit Congress' power of "inquiry" to matters related to its enumerated powers.
To be clear, (a) I'm well aware that Congress' power to compel witnesses is firmly established in modern doctrine (albeit with sometimes unhappy results), and (b) I think it's likely that there is solid historical/originalist support for some form of the power. My point is that, from an originalist perspective, one should not assume the constitutional validity of Congress' power; rather, it needs to be proved historically and textually, and doing so might reveal its limitations. Focusing on the particular facts of "Fast and Furious," why is it within Congress' constitutional sphere that an executive branch scheme for enforcing federal law went tragically awry? Except in exceptional cases warranting impeachment (and that doesn't appear plausibly to be the case here), it is the executive, not Congress, that the Constitution tasks with supervising the enforcement of federal law.
UPDATE: Brett Bellmore responds:
My own doubtless quite eccentric view of the matter is that Congress' subpoena power is questionable in regards to random citizens, or even members of the Judiciary, or the President or vice-President. But for people holding offices Congress itself created, like the AG? Congress could pass a statute requiring the AG to stand on his head and bark like a seal. The office is their creation, it only has such rights as they endow it with. Congress can't give an official the power to say no to a latter session of Congress.
John Eastman has this analysis of the Arizona v. United States decision at Bloomberg: Where the Supreme Court Went Wrong in Arizona. He puts it exactly right, from my perspective, in this passage:
So where did Kennedy’s majority opinion go astray? In striking down the three provisions of the Arizona law, it bucked a recent trend of the court with respect to its pre-emption doctrine. There is no question that, in exercising its powers over naturalization and immigration, Congress can expressly pre-empt various state laws that would conflict with the federal law. But there was no express pre-emption provision in federal law that prohibited Arizona’s efforts. …
Kennedy thus had to resort to various implied pre-emption doctrines, about which the court has grown increasingly suspicious. Field pre-emption, for example, has in the past recognized that when Congress so comprehensively occupies an entire field of the law, we can infer that it intended to displace any state authority over the subject. And “policy” pre-emption [ed.: I would say “obstacle preemption,” since that's the standard doctrinal term] yields the view that states can’t act if, in the court’s judgment, they are undermining unspoken policy goals of the congressional statutory plan.
Both doctrines require the justices to engage in the highly speculative enterprise of what Congress might have intended by its silence, and, as I said, the court has grown increasingly suspicious of the very legitimacy of that enterprise.
Not so with Kennedy’s opinion, which embraces both doctrines. Congress’s decision not to impose federal criminal sanctions was viewed as a deliberate decision to bar states from imposing state criminal sanctions. But, as the dissenting justices pointed out, it is an equally plausible inference that Congress simply wished to leave the matter of whether to impose state criminal sanctions to the states.
Normally, any such ambiguity would be interpreted to the benefit of the states, because in other areas of the law, the Supreme Court has been pretty adamant that the displacement of state sovereign authority can only be done with the clear and unambiguous determination of Congress. In other words, there is normally a presumption against pre-emption.
That presumption will no longer apply as vigorously in the immigration context in areas where the federal government has extensively regulated. [Ed.: see also this post by Mike Dorf: SCOTUS Adopts a Tacit Presumption in Favor of Preemption in Immigration Cases].
I'm not sure the Court has grown "increasingly suspicious" of implied preemption, but it should, as the Arizona case illustrates. Like most difficult preemption cases, the case asks whether the federal law is supposed to be a minimum that states can supplement with their own laws or a maximum that states cannot exceed. (For example, does the fact that federal law in general imposes only civil, not criminal, penalties for being in the U.S. illegally mean that the states can chose to impose their own criminal penalties, or not?) The problem, absent statutory language addressed to that matter, is that other than in exceptional cases there isn't any way to answer the question apart from speculation (and in fact various members of the enacting Congress probably had differing views on the question, to the extent they considered it at all; reconstructing what Congress as a whole thought is likely impossible even in theory). And judicial speculation in this regard usually reduces to what the judge thinks is reasonable (since surely Congress would have acted reasonably!). The result is preemption by judiciary, which is not the constitutional design.
As Professor Eastman suggests (and the Court has sometimes said) the better approach would be to require Congress to be clear on the matter -- Congress can displace states expressly (or by clear implication) and remove the need for speculation. This is the core of Justice Thomas' relatively short and straightforward dissent in the Arizona case. Adoption of that approach would get us back to the idea of statutory preemption by Congress rather than speculation by the courts.
And no great harm is likely to arise from taking Justice Thomas' approach. If the courts fail to preempt something Congress wants preempted, Congress can easily correct the error. It might be argued, of course, that Congress can also correct decisions that wrongly find preemption, so there's no need for a presumption in favor of the states. But Congress is more likely to act quickly and decisively to correct errors that threaten its own power, as compared to errors that threaten state power. Moreover, Article VI says that federal law "made in Pursuance" of the Constitution (that is, through the Article I, Section VII procedures) displaces state law, not unenacted policies. So I view the case in general as an unfortunate step away from the right approach to preemption, albeit one fortunately likely to be limited to immigration.
On the other hand, I absolutely agree with the majority opinion (contra Professor Eastman and the dissents) that "preemption" should not be hyphenated.
At Legal Insurrection, William Jacobson has a quick summary of the main holdings of the Arizona immigration case (Arizona v. United States) that the Supreme Court decided today. He provides this language from the dissents:
Justice Scalia:
What this case comes down to, then, is whether the Arizona law conflicts with federal immigration law—whether it excludes those whom federal law would admit, or admits those whom federal law would exclude. It does not purport to do so. It applies only to aliens who neither possess a privilege to be present under federal law nor have been removed pursuant to the Federal Government’s inherent authority….
The most important point is that, as we have discussed, Arizona is entitled to have “its own immigration policy”—including amore rigorous enforcement policy—so long as that does not conflict with federal law. The Court says, as though the point is utterly dispositive, that “it is not a crime for a removable alien to remain present in the United States,” ante, at 15. It is not a federal crime, to be sure. But there is no reason Arizona cannot make it a state crime for a removable alien (or any illegal alien, for that matter) to remain present in Arizona….
Arizona has moved to protect its sovereignty—not incontradiction of federal law, but in complete compliance with it. The laws under challenge here do not extend or revise federal immigration restrictions, but merely enforce those restrictions more effectively. If securing its territory in this fashion is not within the power of Arizona, we should cease referring to it as a sovereign State. I dissent.
Justice Thomas:
I agree with JUSTICE SCALIA that federal immigration law does not pre-empt any of the challenged provisions of S. B. 1070. I reach that conclusion, however, for the simple reason that there is no conflict between the “ordinary meanin[g]” of the relevant federal laws and that of the four provisions of Arizona law at issue here.
