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42 posts from February 2013


Indiana's Imminent Application for a Limited Convention
Mike Rappaport

Over at Balkinization, Gerard Magliocca writes that Indiana "is poised to pass a resolution petitioning for a national constitutional convention."  The resolution calls for a limited convention -- one that is "strictly confined to consideration of amendments concerning the limitation of the commerce and taxing powers of Congress."  Moreover, the resolution states that at the convention each state should have one vote.

Like all applications for a convention -- whether limited or not -- the odds are against this one.  But you never know.  There is always a first time.  It is too bad that this aspect of our Constitution works so poorly.  For elaboration on this argument, see here.

Over the years, many scholars have argued that the Constitution does not recognize limited conventions, usually relying on originalist or textualist arguments.  But I think they are mistaken.  Here is the syllabus of my recent paper on the subject:

This article revisits the classic question of whether the Constitution allows limited conventions. The Constitution provides two methods for proposing constitutional amendments: the congressional proposal method and the convention method. Under the convention method, when two thirds of the state legislatures apply for a convention, the Congress is required to call for a “Convention for proposing Amendments.” An issue much debated over the years has been whether the state legislatures can apply for a limited convention – either a convention limited to proposing an amendment on a specific subject or, even more restrictively, a convention limited to deciding whether to propose a specifically worded amendment. A long line of leading constitutional scholars, such as Bruce Ackerman, Alexander Bickel, Charles Black, Walter Dellinger, Gerald Gunther, and Michael Paulsen, have argued that the Constitution does not authorize limited conventions.

In this article, I argue that the Constitution’s original meaning allows for both types of limited conventions. In making this argument, I supply the first rigorous account of how the original meaning of the constitutional text permits such limited conventions. In particular, I show, based on evidence from contemporary dictionaries, from other parts of the Constitution, from conventions existing at the time, and from other evidence of word usage, that the original meaning of the Constitution’s phrase a “Convention for proposing Amendments” includes both limited and unlimited conventions. I also show that the Constitution’s authorization of state legislatures to apply for a “Convention for proposing Amendments” allows them to apply for limited conventions. Finally, the article critiques the leading theories arguing for the contrary view, focusing on the work of Charles Black and Walter Dellinger.

The Treaty Power: Its History, Scope and Limits, by Oona Hathaway et al.
MIchael Ramsey

Recently published in the Cornell Law Review (Vol. 98, No. 2) -- The Treaty Power: Its History, Scope and Limits, by Oona A. Hathaway, Spencer Amdur, Celia Choy, Samir Deger-Sen, John Paredes, Sally Pei & Haley Nix Proctor.  Here is the abstract:

This Article examines the scope of the treaty power under the U.S. Constitution.  A recent challenge in the courts has revived a debate over the reach and limits of the federal government’s treaty power that dates to the Founding. This Article begins by placing today’s debate into historical perspective—examining the understanding of the treaty power from the time of the Founding, through the Supreme Court’s landmark decision in 1920 in Missouri v. Holland, and up to the present. It then provides a systematic account of the actual and potential court-enforced limits on the treaty power—including affirmative constitutional limits, limits on implementing legislation, and limits on the scope of the Article II treaty power itself. In the process, the Article develops a detailed pretext test that courts could use to assess whether the federal government has exceeded its Article II authority. Yet even this elaborated pretext test is unlikely to be used to invalidate many treaties. Hence the most important protection against abuse of the treaty power comes not from the courts but from structural, political, and diplomatic checks on the exercise of the power itself—checks that this Article describes and assesses. These checks provide for “top-down” and “bottom-up” federalism accommodation. The result is a flexible system in which the states and the federal government work together to preserve the boundary between their respective areas of sovereignty. The Article concludes that this flexible system of accommodation is likely to be more effective than any court-enforced restraint at protecting against abuse of the federal treaty power.

This article recounts some interesting history, but it doesn't deliver on what I first thought would be its goal -- to defend Congress' power to enforce treaties through legislation (a power challenged in Bond v. United States, the case referenced in the abstract, and by academic commentators such as Nick Rosenkranz).  On this point, the article principally argues that there is little founding-era evidence because the Framers assumed treaties would be self-executing. 

If true, that would seem to favor, not undermine, the argument that Congress lacks treaty enforcement power.  I doubt, though, that the claim is true.  While I think the Framers thought many treaties would be self-executing, they likely also thought some enforcement would be needed.  For example, I doubt they thought treaties (even self-executing treaties) would themselves directly create crimes.  Like the treaty in Bond, eighteenth- and nineteenth-century treaties were more likely to proscribe conduct without specifically setting out how wrongful conduct would be punished.  Perhaps such conduct could be punished under common law (depending on what the Framers thought about common law crimes), but even so a power to enforce by statute would be an important tool.  So I think the paper is too quick to conclude that there are no useful originalist arguments to be made on the point.


Randy Barnett: The Gravitational Force of Originalism
Michael Ramsey

Randy Barnett (Georgetown Law Center) has posted The Gravitational Force of Originalism (Fordham Law Review, forthcoming) on SSRN.  Here is abstract:

In part I of this essay, prepared for the Fordham conference on “The New Originalism and Constitutional Law,” I describe four aspects of the New Originalism: (1) The New Originalism is about identifying the original public meaning of the Constitution rather than the original framers intent; (2) The interpretive activity of identifying the original public meaning of the text is a purely descriptive empirical inquiry; (3) But there is also a normative tenet of the New Originalism that contends that the original public meaning of the text should be followed; (4) Distinguishing between the activities of interpretation and construction identifies the limit of the New Originalism, which is only a theory of interpretation. In part II, I then discusses how originalism can influence the outcome of such cases as D.C. v. Heller, McDonald v. Chicago, and NFIB v. Sebelius. I suggest that, so long as there are justices who accept the relevance of original meaning, originalism can exert a kind of “gravitational force” on legal doctrine even when, as in McDonald and ​NFIB​, the original meaning of the Constitution appears not to be the basis of a judicial decision.

Here is a link to the conference where the paper is being presented: The New Originalism and Constitutional Law.


Jack Goldsmith on Drone Strikes within the United States
Michael Ramsey

At Lawfare, Jack Goldsmith: Of Course President Obama Has Authority, Under Some Circumstances, to Order Lethal Force Against a U.S. Citizen on U.S. Soil (and a Free Draft Response to Senator Paul for John Brennan).  From the introduction:

I noted last week than in his answer to the question whether the Obama administration could “carry out drone strikes inside the United States,” John Brennan gave this non-response: “This Administration has not carried out drone strikes inside the United States and has no intention of doing so.” Now Senator Paul has followed up in a letter that asks Brennan: “Do you believe that the President has the authority to order lethal force, such as a drone strike, against a U.S. citizen on U.S. soil, and without a trial?” Senator Paul says that he will block Brennan’s confirmation unless he “directly and clearly” answers this question. That should be easy for Brennan to do. The direct and clear answer to the question is, “Yes he does, under certain circumstances.”

I agree with the general statement, and I agree with the "certain circumstances" Professor Goldsmith goes on to outline (basically, as absolutely necessary to counter immediate threats of harm, in self-defense, or in a battlefield-type situation).  What's missing (implied, perhaps, but not directly stated) is this: an explanation of why, constitutionally, that's correct.

My answer is that where due process protection applies (as it surely does within the United States), unilateral executive deprivation of life is allowed only in narrow categories where there is strong evidence of a historical exception.  That's the case in most or all of the situations Professor Goldsmith notes.

Putting matters this way is important because it contrasts with the Justice Department's defense of drone strikes on U.S. citizens abroad (a defense that by extension seems to apply to strikes within the U.S. as well).  In the Justice Department view, as I understand it, the test for executive action is not categorical but derives from balancing the particulars of any given situation.  (See this assessment from Gregory McNeal).

The balancing approach is flawed in two respects.  First, it is not grounded in a textual or historical understanding of the Constitution.  And second, it doesn't provide a meaningful limit on the executive -- especially in a field where before-the-fact judicial review is unlikely.  The President's lawyers will be able to argue that the balance favors a strike when they (and he) want the balance to favor a strike.  Opponents may argue the contrary, but the right answer won't be obvious, and the initiative will be with the executive.  In areas of weak judicial review, categorical rules provide the best promise of limits on the executive, because violations are less debatable.

So I would amend Professor Goldsmith's conclusion to say: “Yes he does, under certain circumstances, which are defined by narrow, historically based categories."

Further note:  The House Judiciary Committee will hold a hearing tomorrow (2/27) on drone strikes on Americans overseas.


Combining Executive and Judicial Power
Mike Rappaport

One of the key issues in Administrative Law is that administrative agencies do not conform to the separation of powers.  In a meaningful sense, agencies possess legislative, executive, and judicial power, which makes them a separation of powers monstrosity.

In this post, I will discuss an aspect of this problem: the combining of prosecutorial and adjudicative functions in the agency.

Prosecuting and adjudicating seems like an obvious violation not merely of the separation of powers but also of the rule of law.  It has long been recognized that a man should not be a judge in his own case, and allowing administrative agencies to adjudicate their own prosecutions does exactly that.  As a result, agencies may not faithfully follow the existing law, but instead bias the adjudication towards their own interests.   

The Administrative Procedure Act, passed in 1946 to impose some constraints on agencies, established some checks on an agency's power to adjudicate its own cases.  In cases involving formal adjudication – those adjudications that are subject to the strongest procedural checks – the agency adjudicator (typically an administrative law judge or ALJ) cannot be supervised by an agency official who prosecutes.  This is a significant check, and is all for the good.

But there are two significant exceptions to this check.  First, if the head of the agency adjudicates the case -- if, for example, the Federal Trade Commission itself adjudicates -- then it can both decide to prosecute the action and adjudicate it.

Second, even if an ALJ adjudicates and decides against the agency, the agency can generally appeal the decision to itself and the agency is largely free to reverse.

It is true that these adjudications by the agency are subject to judicial review by the courts.  But that is a limited check as well.  When the courts review agency actions, they confer deference on the agency's decisions as to facts, law, and policy.  So, yes, judicial review is a check, but it is a limited check because the agency gets deference.  Judicial review will only prevent the most problematic decisions reached by the agency.

In my next post, I will discuss how this problem might be resolved.

(Cross posted on the Liberty Law Blog)

MIKE RAMSEY ADDS:  When I first saw the title of this post, I thought it would be about drones.

The issues share at least two common themes.  For one,  due process is, as Nathan Chapman and Michael McConnell show, at its core a restatement of separation of powers.  The executive exercising judicial power violates due process because it violates separation of powers.  So you can think of an issue like drones (or effectively unreviewable agency adjudication) as a separation of powers issue, or as a due process issue; it amounts to the same thing.  And second, process within the executive branch is not "due" process in the constitutional sense, precisely because it does not cure the separation of powers problem.

Seth Barrett Tillman's Answers on "Officers" and "Offices"
Michael Ramsey

Seth Barrett Tillman (National University of Ireland, Maynooth - Faculty of Law) has posted Six Puzzles for Professor Akhil Amar: The Answers on SSRN (giving his answers to the six puzzles posed here about the Constitution's use of "Offices" and "Officers").


Barnett, Kerr and Somin on Federalism and Constitutional Gestalt
Michael Ramsey

At Volokh Conspiracy, an exchange on the Supreme Court's commitment (or lack thereof) to federalism.

Randy Barnett: Who Won the Obamamcare Case (and Why Did So Many Law Porofessors Miss the Boat?)

Ilya Somin: Comstock, Bond, and Predictions About the Individual Mandate Case

Orin  Kerr: Understanding the New Federalism and the Rehnquist Court: A Response to Randy

Randy Barnett: Ain't Prognosticatin'

The core question remains, I think , whether the Court is willing to take meaningful -- as opposed to symbolic -- steps toward a federalism revival.  (Of course, the fact that the Court has been willing to take several symbolic steps is, as Professor Barnett says, itself a considerable shift in what he -- and Larry Solum -- call the "constitutional gestalt".  When I was in law school, even the idea of symbolic steps was laughable.)


Ephraim Unell: The First Word Revisited
Michael Ramsey

Ephraim Unell has posted The First Word Revisited on SSRN.  Here is the abstract:

This short piece reexamines the original meaning of the first word of the First Amendment: “Congress.” Does “Congress,” in the Amendment, refer to the federal legislature alone – or does it function as a synecdoche and convey a broader meaning there, encompassing one or both of the other branches of the federal government?

That the Constitution in Article I defines “Congress” does not mean it has the same meaning throughout. The literature examining the contextual meaning of “Congress” there is scant. Only two sources directly consider the meaning of “Congress” in the Amendment and its implications for the scope and content of the rights there.

My purpose here is to update and expand on those sources. My discussion here reviews and updates the evidence of the (original public) meaning of “Congress” in the First Amendment.

Though the evidence is inconclusive, on balance it tilts to the second possibility. I will show that “Congress” in the First Amendment is best understood as a synecdoche that includes the Executive branch as well.

At Legal Theory Blog, Larry Solum has some thoughtful comments, beginning:

This very interesting paper is recommended.

This issue is fascinating, but my own take is quite different than Unell's.  So far as I can tell there is no direct evidence that "Congress" was used as a syndecdoche--Unell adduces no such evidence.  There is substantial evidence that various First Amendment rights were understood to apply more broadly, but that evidence is consistent with a much more plausible hypothesis--that the Ninth Amendment reflected the understanding that the enumerated rights in Article One and the first eight Amendments confirmed preexisting rights and limits on federal powers.  Of course, there is the familiar difficulty with determining the content of such rights, but the extension of "freedom of speech" and other First Amendment rights to actions by the executive and judicial branches would appear to be an easy case.  Unell deals with a version of this theory briefly in a footnote, but does not discuss its implications for the syndecdoche theory.

I would suggest a third view.  At least with respect to the executive, perhaps this is a false issue.  The executive lacks lawmaking power, as a consequence of Article I, Section 1, and Article II, Section 1.  Any restriction of speech by the executive branch (that has the effect of law) must derive from an authorization by Congress.  Thus, it is subject to the First Amendment, because the authorizing statute is subject to the First Amendment.  As a result, a literal reading of the First Amendment does not pose material problems of executive restrictions on speech.

One difficulty with this view is the question of treaties that restrict speech.  Treatymaking is a presidential lawmaking power exercised without the involvement of Congress as a whole.  So arguably, a literal reading of "Congress" in the First Amendment leaves open the prospect of treaties violating First Amendment rights.  But perhaps "Congress" is properly read as "no part of Congress" -- thus including the Senate acting on its own in consenting to treaties.


Recess Appointments Case to the Supreme Court Next Term?
Michael Ramsey

At Point of Order, Michael Stern reports that (according to his sources) the Justice Department will not seek rehearing en banc of the D.C. Circuit's recess appointments decision and will try for review in the Supreme Court on a non-expedited basis.  If that's right, and if the Court grants review (as I assume it will), that would likely put the recess appointments case on the early part of the calendar for next Term (Fall 2013) -- along with another high-profile originalist-oriented case, Bond v. United States.

UPDATE:  And likely another -- Moore v. Madigan (Second Amendment right to carry firearms in public; rehearing en banc denied today).


Richard Epstein on “Constitutionalism, Originalism, and Libertarianism"
Mike Rappaport

Last month, the Center for the Study of Constitutionalism Originalism at the University of San Diego hosted a talk by leading Libertarian scholar Richard Epstein based on his new book The Classical Liberal Constitution.  Commentary was provided by Larry Alexander, David McGowan and myself.  You can watch the talk here.  (You have to scroll down a little.)

Richard’s brand of originalism works as follows.  He believes that the constitutional language should be given its original meaning, but that the language is often incomplete or vague.  Therefore, he argues that the language must be interpreted in accordance with some background principles, and those are classical liberal principles, because the leading political theory at the time of the Constitution was classical liberalism.  As a result, Richard is able to argue that the Constitution’s originalism meaning leads largely to classical liberalism.

While I found Richard’s argument powerful, I nonetheless disagreed with Richard’s interpretive approach to a certain extent.  First, the principles of classical liberal sounds like a single approach, but in fact at the time of the Constitution there were a range of different classical liberal approaches.  It is therefore difficult to know which of these approaches to apply.  For example, some classical liberals believed in individual rights more than others who reserved a larger place for community norms or legislative enactments.  How do we know which of these different approaches to apply?  This reduces (although does not eliminate) the value of looking to classical liberal principles.

Second, when determining the meaning of unclear provisions in the Constitution, one must look to a variety of matters, including the legal meanings at the time as well as the content of the practices and laws that existed in the states.  These meanings, practices, and laws will sometimes conflict with classical liberal principles, but they should be followed nonetheless.

The upshot of all this is that I believe that the Constitution’s original meaning will end up being less strongly classically liberal than Richard does.  In sum, it will be a classical liberal document, just one that involves a mix of different provisions, some more and some less classically liberal.

For those interested in my comments, they begin at the 36 minute mark of the video.

(Cross Posted at the Liberty Law Blog)