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46 posts from August 2012


More on the Incompatibility Clause
Michael Ramsey

At Dorf on Law, Seth Barrett Tillman responds to Mike Dorf: Coda on Dual Service in Congress and as VP.  Interesting comments as well, including from Marty Lederman, who notes that "in 2009 we at [the Office of Legal Counsel] concluded without pausing at all that the President 'surely' holds an Office of Profit or Trust under the U.S.  See www.justice.gov/olc/2009/emoluments-nobel-peace.pdf."

RELATED:  The final version of Professor Tillman's op-ed on the subject at Jurist is now posted here.


Rick Hills on McCulloch and Banking Preemption
Michael Ramsey

At PrawfsBlawg, Rick Hills:  McCulloch and Banking Preemption: A Case Study in the Tenacity of Bad Precedents (discussing his article recently posted on SSRN). From the SSRN abstract:

Conventional wisdom holds that federal law’s conferring banking powers on national banks presumptively preempts state laws seeking to control the exercise of those powers. This conventional wisdom springs from a long-standing legal tradition, originating with McCulloch v. Maryland, that nationally chartered banks are federal instrumentalities entitled to regulate themselves free from state law, even when national law fails to address the risks that state law seeks to regulate. Incorporated into National Bank Act of 1864 by 19th century precedents but then abandoned by the New Deal Court, McCulloch’s theory of preemption is being revived today by the Office of the Comptroller of the Currency (“OCC”) to preempt broad swathes of state law.

This article maintains that it is time to exorcise McCulloch’s theory from our preemption jurisprudence. Far from being sanctioned by legal tradition, McCulloch’s theory that national banks are federal instrumentalities offends a deeply rooted tradition in American political culture and law that I call the “anti-banker non-delegation principle. This principle has been manifest in campaigns against national banks’ immunities from political oversight ranging from Andrew Jackson’s 1832 veto of the charter of the Second Bank of the United States message to Louis Brandeis’ 1912 campaign against the “House of Morgan” as a “financial oligarchy.” Rather than accept McCulloch’s view of banks as impartial instruments of the federal government, the American political system and, since the New Deal, the federal courts, have adopted the view that federal law should not delegate unsupervised power to private banks to determine the honesty, safety, and soundness of their own operations. Accordingly, if federal regulators set aside state laws regulating banking practices, then those federal regulators must explain how federal law addresses the risks the state law attempts to control.

The most recent effort to eliminate McCulloch’s theory of preemption, according to this article, §1044(a) of the Dodd-Frank Act, which provides detailed standards governing the power of the OCC to preempt state law. This article argues that the OCC’s 2011 rules mistakenly revive McCulloch’s theory of preemption, contradicting not only §1044(a) but also the more general tradition of distrusting unsupervised delegations of immunity from state law to national banks. In particular, like McCulloch, the OCC’s rules draw irrational distinctions between states’ general common-law doctrines and states’ rules specifically directed towards banking practices, subjecting the latter to a sort of field preemption. Rather than accept such preemption, this article urges that courts ought to follow the ordinary principles of conflict preemption, barring preemption of state law unless the OCC has specifically approved the banking practice that state law forbids.

Not surprisingly, I agree.  As Professor Hills adds in his blog post, "The idea is ludicrous that [officers of national banks] are somehow the moral equivalent of U.S. Attorneys and federal postmasters, entitled to make policy for the federal government free from state oversight even when no bona fide federal agency is checking their work. Those banks are just private enterprises, acting out of banking self-interest..." 

Like most areas of preemption, there's no need here for the courts to do Congress' work for it -- if Congress wants to preempt state banking law, it's very straightforward for it to do so.  True, there may be political and administrative costs.  But that is exactly the point.  In our system federalism is protected in large measure by the formal procedures Congress must use to displace the states.  Where it really matters, Congress can overcome these hurdles.  Where it doesn't matter so much, those hurdles protect the states' field of action -- unless the courts intervene on what is in effect their own initiative.


David Bernstein on Originalism and Fisher v. University of Texas
Michael Ramsey

At Volokh Conspiracy, David Bernstein: The Originalist Case for UT in the Fisher Case Falls Short (commenting on the amicus brief discussed here).

Stephen Ware: Originalism, Balanced Legal Realism, and Judicial Selection
Micahel Ramsey

Stephen J. Ware (University of Kansas Law School) has posted Originalism, Legal Realism and Judicial Selection: A Case Study on SSRN.  Here is the abstract:

The “balanced realist” view that judging inevitably involves lawmaking is widely accepted, even among originalists, such as Justice Scalia, Randy Barnett and Steven Calabresi. Yet many lawyers are still reluctant to acknowledge publicly the inevitability of judicial lawmaking. This reluctance is especially common in debates over the Missouri Plan, a method of judicial selection that divides the power to appoint judges between the governor and the bar.

The Missouri Plan is one of three widely-used methods of selecting state court judges. The other two are: (1) direct election of judges by the citizenry, and (2) appointment of judges by democratically elected officials, typically the governor and legislature, with little or no role for the bar. Each of these two methods of judicial selection respects a democratic society’s basic equality among citizens — the principle of one-person, one-vote. In contrast, the Missouri Plan violates this principle by making a lawyer’s vote worth more than another citizen’s vote.

This Article provides a case study of the clash between the inevitability of judicial lawmaking and the reluctance of lawyers to acknowledge this inevitability while defending their disproportionate power under the Missouri Plan. The Article documents efforts by lawyers in one state, Kansas, to defend their version of the Missouri Plan by attempting to conceal from the public the fact that Kansas judges, like judges in the other 49 states, inevitably make law. The case study then shows examples of Kansas judges making law. The Article concludes that honesty requires lawyers participating in the debate over judicial selection in the United States to forthrightly acknowledge that judges make law. Lawyers who seek to defend the power advantage the Missouri Plan gives them over other citizens can honestly acknowledge that this is a power advantage in the selection of lawmakers and then explain why they believe a departure from the principle of one-person, one-vote is justified in the selection of these particular lawmakers.


Professors Dorf and Tillman discuss Paul Ryan and Incompatibility
Michael Ramsey

At Dorf on Law, Seth Barrett Tillman and Mike Dorf debate whether Paul Ryan can be Vice President and Congressman at the same time.

At noted here earlier, Professor Tillman's somewhat counterintuitive argument is that the Vice President does not hold an "Office under the United States" and thus dual service by Ryan wouldn't violate Article I, Section 6 ("no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office").

Interestingly, Professor Dorf largely concedes the textual and historical arguments:  "Tillman has persuaded me" he says, "that, standing alone, the text and early history of the Constitution are probably best read to permit a single person simultaneously to serve in Congress and as either President or Vice-President."   He goes on to say:   "But text and early history do not stand alone. To use language coined by Philip Bobbitt, there are other 'modalities' of constitutional interpretation, including structure and prudence--and these seem to me to give ample room to implement the intuition that dual service in Congress and the Presidency or Vice Presidency is nuts."  (There's more, but it all seems a bit weak, especially by Professor Dorf's standards: Bobbitt's "prudence" has always struck me as a fancy word for "seems like a bad idea to me," which doesn't seem very attractive from an originalist perspective; and "structure" as used here also seems only a little removed from "seems like a bad (structural) idea to me").

Nonetheless, as to Professor Tillman's argument, I'll be persuaded when Saikrishna Prakash is persuaded.

UPDATE:  Professor Tillman's argument is based on this article forthcoming in Jurist:  Member Of The House Of Representatives And Vice President Of The United States: Can Ryan Hold Both Positions At The Same Time? 


Richard Epstein and Roger Pilon on Alexander Bickel
Michael Ramsey

SCOTUSBlog's continuing symposium on Alexander Bickel includes two strong posts of originalist interest: Richard A. Epstein: An affectionate, but contrarian, remembrance and Roger Pilon: Bickel and Bork beyond the academy.

From the introduction to the latter:

[Robert] Bork, after he left Yale, and whatever his several differences with Bickel, drew nonetheless on Bickel’s two main themes – the “countermajoritarian difficulty” and the “passive virtues” – to become the dominant figure in the rising conservative legal movement, with its call for “judicial restraint” – a direct response to the “judicial activism” and the “rights revolution” conservatives saw coming from the Warren and Burger Courts. Whether in the pages of National Review from the late 1950s, in the aftermath of the Goldwater takeover of the Republican Party in the late ’60s and on through the ’70s, the emergence of the Federalist Society in 1982, or through the Reagan administration’s judicial appointments, Bickel’s influence on the Bork brief for “judicial restraint” was at the center of the increasingly influential conservative political debate concerning the courts.

But a funny thing happened along the way. During the mid-’70s a tiny band of libertarians, rooted for the most part in that emerging conservative political movement and, in academia, in philosophy and law, began to question the conservative thesis. After all, didn’t the nation spring from the idea of natural rights? And weren’t courts instituted to secure those rights by limiting government power? Indeed, what was it with this judicial “deference” to majoritarian democracy, the very process that had given us the Leviathan against which conservatives (and libertarians) were otherwise railing?

Thus the debate over the conservative movement’s jurisprudential soul began. Long dominated by Borkian conservatives, it has slowly shifted over the years in the libertarian direction – not entirely, to be sure, but significantly. Drawing on both theory and history, libertarians have called for a more “active” judiciary – not to be confused with liberal “judicial activism” – first to defend rights, as in Lucas v. South Carolina (1992) and Lawrence v. Texas (2003), then to challenge powers, as in Lopez (1995), Morrison (2000), and the Obamacare cases, where six of the twelve judges who had ruled on the merits by the time the Supreme Court granted cert. were sufficiently “engaged” to hold that Congress had exceeded its power under the Commerce Clause, as the Court itself just ruled and as libertarians had argued long before conservatives came to that view for fear of unleashing the courts. Two years ago, nearly all academics and many conservatives gave that argument little chance.

It’s that story, about how the Bickel-influenced Bork thesis has played out, and declined, over the several decades during which the conservative legal movement has grown, quite outside of academia, that I want to tell ...

James Stern: Property's Constitution
Michael Ramsey

James Y. Stern (University of Virginia Law School) has posted Property's Constitution (California Law Review, forthcoming) on SSRN.  Here is the abstract:

Long-standing disagreements over the meaning of property as a matter of legal theory present a special problem in constitutional law. The Due Process and Takings Clauses set forth individual rights that can only be asserted if “property” is at stake. Yet the leading cases interpreting constitutional property doctrines have never managed to articulate a coherent general view of property and in some instances reach opposite conclusions about its meaning. Most notably, government benefits are considered “property” for purposes of due process but not takings doctrines, a conflict the cases acknowledge but do not attempt to explain.

This Article offers a way to bring order to the confused treatment of property in constitutional law. It shows how a single definition of property can be adopted for all of the major constitutional property doctrines without the calamitous results that many seem to fear. It begins by arguing that property is best understood as the right to have some measure of legal control over the way a particular item is used, control that comes at the expense of all other people. It then argues that legal rights are a kind of private property and that, while courts and commentators are correct that legal entitlements to government benefits — so-called “new property” — should receive constitutional protection, they mistakenly believe the property at issue is the good that a recipient has a right to receive, rather than the legal right to receive it. The Article proceeds to show that legal rights are the only kind of things whose existence government can altogether extinguish and therefore that ownership of legal rights is the only kind of property right government can terminate without conferring equivalent property rights on others. The Article further argues that while due process protection should be read to apply whenever a person is denied an asserted property right (a deprivation), takings protection should only come into play when property rights are transferred from one party to another (a taking). Combining these observations, the Article concludes that termination not only of “new property” rights but also of old-fashioned in personam legal rights should trigger due process but not takings protection. This analysis provides theoretical coherence to constitutional doctrine that has thus far been lacking and it sheds light on the essential characteristics of property rights as a general matter, helping theoreticians understand more clearly the core structures of property law.

I met Professor Stern, who is just launching his scholarly career, at a conference last semester and was extraordinarily impressed.  Look for him to have major long-term impact.

UPDATE:  Larry Solum (Legal Theory Blog) says "Very interesting and highly recommended. Download it while it's hot!"


Michael Mannheimer: Harmelin's Faulty Originalism
Michael Ramsey

Michael Mannheimer (Northern Kentucky University - Salmon P. Chase College of Law) has posted Harmelin's Faulty Originalism on SSRN.  Here is the abstract:

In Harmelin v. Michigan, in 1991, Justice Scalia, writing only for himself and Chief Justice Rehnquist, set forth the claim that the Cruel and Unusual Punishments Clause, as understood in 1791, did not require proportionality in sentencing. Instead, he argued, it was understood at that time as addressing only certain methods of punishment. Twenty-one years later, the plurality opinion in Harmelin remains the foundation for conservative originalist arguments against the notion that the Clause forbids disproportionate punishment. It has continued to be cited by its adherents, Justices Scalia and Thomas, as recently as the last week of the October 2011 Term. Meanwhile, those who contend that the Eighth Amendment prohibits disproportionality in sentencing have generally conceded the originalist position, and Harmelin’s originalist arguments have gone virtually unchallenged.

Until now. This Essay contains a point-by-point refutation of the arguments made by Justice Scalia in Harmelin. It demonstrates that the original understanding of the Cruel and Unusual Punishments Clause is not nearly as clear as the Harmelin plurality opinion pretends. Moreover, to the extent that there was any consensus in 1791, it appears that the framers and ratifiers of the Clause contemplated that it encompassed some requirement of proportionality. In any event, the notion that the Clause was clearly understood as forbidding only certain methods of punishment is demonstrably false.

Harmelin was decided the Term that I clerked, so I take this personally.  Sort of.  Actually, I'm just happy to see somone writing about cases from that year.

(Via Larry Solum at Legal Theory Blog).


David Gans on Fisher v. University of Texas
Michael Ramsey

At Balkinization, David Gans: Scholars’ Brief in Fisher v. University of Texas Urges New Look at Text and History of the Fourteenth Amendment.  From the introduction:

On Monday, Constitutional Accountability Center filed an amici curiae brief in the Supreme Court in Fisher v. University of Texas, urging the Court to reaffirm that the Fourteenth Amendment permits the sensitive use of race to foster equality in education and to uphold the University of Texas’ use of race as one factor in its holistic admissions policy.  The brief is available here.  Our brief, filed on behalf of CAC and six of the nation’s most prominent constitutional scholars – Bruce Ackerman, Vikram Amar, Jack Balkin, Burt Neuborne, James Ryan, and Adam Winkler – demonstrates that the text and history of the Fourteenth Amendment permit government to take race into account in certain circumstances in order to ensure equality of opportunity for all persons regardless of race. 


Andrew Hyman on Executive Agreements
Michael Ramsey

Andrew Hyman writes:

I noticed in your recent blog post [ed: here] that you posed a couple questions: "To what extent, then, should originalists push for a return to the original meaning in this area?  Or should they accept the change as in effect a constitutional amendment (which is what Ackerman and Golove contend)?"

My view is that NAFTA has a critical feature: it says that the US can get out of the deal on six months' notice whenever we want, without any penalty imposed by the deal.  I think, therefore, that the framers arguably might well have considered NAFTA to be within the power of Congress.  NAFTA does not entangle.  It does not bind a successor Congress to any long-term commitment.  Consider what Thomas Jefferson wrote:

"It is desirable, in many instances, to exchange mutual advantages by Legislative Acts rather than by treaty: because the former, though understood to be in consideration of each other, and therefore greatly respected, yet when they become too inconvenient, can be dropped at the will of either party: whereas stipulations by treaty are forever irrevocable but by joint consent...." 

Jefferson wrote this in his "Report of the Secretary of State to the President" (January 18, 1791) [ed: item 8559 in the link].  It reflects a point of view very familiar in international law of that time.  For example, Vattel's "Law of Nations" said that an international deal is not necessarily a treaty if it contains no long-term commitment, in which case it can instead be denominated an "agreement".

I wrote about this subject in 1995 (http://www.andrewhyman.com/articles/denver.pdf). [ed: Andrew T. Hyman, The Unconstitutionality of Long-Term Nuclear Pacts that are Rejected by Over One-Third of the Senate, 23 Den. J. Int'l L. 313 (1995)].