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42 posts from July 2013


The Government's 'General Warrants' for the Digital Age by Jeremy Leaming
Michael Ramsey

At the ACS Blog, Jeremy Leaming: The Government's 'General Warrants' for the Digital Age (plus video interview with Jameel Jaffer, ACLU Deputy Legal Director):

If the Fourth Amendment bar against unreasonable searches and seizures undertaken by the government “prohibits anything, it surely is that kind of dragnet surveillance that’s not based on individualized suspicion of any kind,” Jaffer said. “In fact, the whole point of the Fourth Amendment was to prohibit general warrants; warrants that were not particularized, that were not based on individualized suspicion. And I think it is fair to say that what we are looking at now is general warrants for the digital age -- that is what the government is proposing and defending here.”

For related thoughts, see this earlier post by Mike Rappaport (discussing a WSJ article by Randy Barnett).  As the post puts it, the difficulty is whether the surveillance constitutes either a "search" or "seizure."

ALSO RELATED: At Volokh Conspiracy, Orin Kerr discusses the recent decision by the Fifth Circuit on cell-site data.

Gary Lawson, Guy Seidman & Robert Natelson: The Fiduciary Foundations of Federal Equal Protection
Michael Ramsey

Gary Lawson (Boston University School of Law), Guy I. Seidman (Interdisciplinary Center (IDC) Herzliyah - Radzyner School of Law), and Robert G. Natelson (The Independence Institute; Montana Policy Institute) have posted The Fiduciary Foundations of Federal Equal Protection (Boston Univ. School of Law, Public Law Research Paper No. 13-32) on SSRN.  Here is the abstract: 

In Bolling v. Sharpe, the Supreme Court invalidated school segregation in the District of Columbia by inferring a broad “federal equal protection” principle from the Due Process Clause of the Fifth Amendment. It is often assumed that this principle is inconsistent with the Constitution’s original meaning and with “originalist” interpretation.

This Article demonstrates, however, that a federal equal protection principle is not only consistent with the Constitution’s original meaning, but inherent in it. The Constitution was crafted as a fiduciary document of the kind that, under contemporaneous law, imposed on agents acting for more than one beneficiary – and on officials serving the general public – a well-established duty to serve all impartially. The Constitution, like other fiduciary instruments, imposes a standard of equal treatment from which lawmakers and officials cannot depart without reasonable cause. Although the Constitution’s original meaning does not precisely define the answers to all “equal protection” cases, and does not necessarily prescribe norms identical to those of existing equal protection jurisprudence, it clearly does prohibit racial discrimination of the kind at issue in Bolling.

I expect this paper to attract a good bit of attention, as it is written by three prominent originalists and takes issue with a longstanding originalist assumption.


Frank Buckley, James R. Rogers and John Yoo Debate Liberty and the Presidency
Michael Ramsey

This is from a while back, but very worthwhile -- at Liberty Forum, Frank Buckley (George Mason) argues in A New Critique of American Exceptionalism that the United States' strong presidency is contrary to the Framers' expectations and that the United States is free despite (not because of) its strong presidency:

Parliamentary governments, which lack a separation of powers, rank significantly higher on measures of political freedom. That’s not to deny that America is one of the freest countries in the world. It’s simply to assert that it wasn’t the presidential system that made the difference. What makes America exceptional is that it has for more than 200 years remained free while yet presidential.

John Yoo (Berkeley law) and James R. Rogers (Texas A &M, Political Science) respond.  Professor Yoo argues in part:

... Separating the executive and legislative power, and generally placing obstacles before the government’s ability to act, will better protect liberty by reducing the scope of public action.  A simple legislative majority cannot quickly reduce liberty, or even act at all, without the concurrence of an independent branch of government elected in a separate manner at a different time.  By internally hamstringing government, civil society will flourish in the absence of regulation.  And even when legislation passes, it will result from long deliberation and effort that is more likely to balance costs and benefits properly and protect minority rights. 

It seems to me that this relationship between the separation of powers and liberty is borne out by American constitutional history.  There has never been a socialist or communist party in the United States (we can all agree that these parties would be the greatest threat to liberty), unlike many of the western nations that might temporarily outscore us on the Freedom House index.  Louis Hartz argued that these parties failed here but not in Europe, even though the West went through industrialization at about the same time, because the Constitution’s separation of powers made it too difficult for radical social movements to change the American economic and political systems instantly.  Whatever its success or failures in other countries, the American presidential system, by which Buckley must also mean the American separation of powers, has succeeded in the United States in preventing the extreme economic and political radicalism that has so beset and almost ruined countries in the rest of the world.

Libertarian Nonoriginalism
Mike Rappaport

In my earlier post on activist liberal nonoriginalism, I discussed the methodology of this interpretive approach, which basically pursues liberal political principles to the extent that the Court can get away with it.

At the end of the post, I indicated that I wanted to discuss other kinds of nonoriginalism in the future. So here let me briefly discuss one of these types – libertarian nonoriginalism. These days my sense is that the dominant position among libertarians is to be originalist and to believe that the original meaning of the Constitution is a very libertarian document (although not a perfectly libertarian one). Randy Barnett is probably the leading person holding this view.

But my sense is that there are still some libertarians who hold the previously dominant nonoriginalist libertarian view. This view was different than activist liberal nonriginalism. It tended to look backward to the Lockian underpinnings of the Constitution. The standard libertarian nonoriginalist argument would contend that the dominant view held by the founding generation was a certain type of Lockian liberalism (of the classical type) and then they would argue that the Constitution should be interpreted in accordance with that type of liberalism.

At times, this approach seemed like it was being faithful to the original Constitution. But ultimately it was not. It was not looking at particular clauses or to the original meaning of the constitutional language. Another problem with this approach was that it assumed that the dominant political theory of the time was the version it most liked, even though the Constitution was a product of compromises between different views.

In the end, this type of libertarian nonoriginalism had a different feel that the activist liberal nonoriginalism. It was backward looking and had more historical support. It was certainly more congenial to my (moderate libertarian) political views. But while I would say that libertarian nonoriginalism was more originalist than activist liberal nonoriginalism, it was still not originalist.

(Cross posted at Liberty Law Blog)

Lael K. Weis: What Comparativism Tells us About Originalism
Michael Ramsey

Lael K. Weis (Melbourne Law School) has posted What Comparativism Tells us About Originalism  (International Journal of Constitutional Law (Forthcoming)) on SSRN.  Here is the abstract:

Defended as a method of constitutional interpretation, originalism is typically thought to reflect uniquely American anxieties about the judicial expansion of rights and the place of popular constitutional culture in judicial review. As such, it has appeared to be of little general interest to constitutional scholars. This paper uses comparative constitutional law to challenge that assumption. Australian constitutionalism lacks the key features thought to make the view distinctively American and yet, the paper argues, originalism not only thrives in Australia but has a firmer foundation in the Australian constitutional system. This has important implications for the application of comparativism to constitutional theory beyond the debate about originalism: the fact that theorists have largely overlooked the possibility that the American constitutional system is not the best fit for originalist interpretation helps show how assumptions grounded in American debates about judicial activism have come to define the aims of interpretive theory.


Law, Politics, and Liberal Nonoriginalism
Mike Rappaport

Recently, I started following a constitutional law professor listserv for the first time in many years.  The listserv is dominated by a certain form of liberal nonoriginalism that might be called activist.  One justice who I believe reflects this approach was Justice Brennan, but some current members of the Court might be included in this group as well.  This has gotten me thinking a bit about the methodology of activist liberal nonoriginalism.

What is striking about this approach is how much of an overlap there is between a person’s political views and his views on the meaning of the Constitution.   This overlap is so strong that might wonder whether the content of constitutional law under this approach is simply one’s political views.

While the person's political views are a first approximation of the content of constitutional law under this approach, I do think there are some constraints on constitutional law under this approach. First, the constitutional text might seem like a constraint, and in some cases (such as the Senate containing two Senators from each state) it does constrain.  But, as anyone trained in these matters knows, one can derive a great many meanings from the words of the Constitution, especially if one accepts relatively loose derivations, as do practitioners of this approach. 

Second,  precedent might seem like a constraint, but in the main it is not all that constraining. Precedents which further the person’s political views are accepted and read broadly.  Precedents which constrain or block one’s political views are read narrowly or thought to require being reversed.  Supreme Court precedent doctrine, moreover, is relaxed enough that the Justices can usually overturn (and if not distinguish) cases they disagree with.

Third, another constraint is based on politics – the reaction to judicial decisions by elites or the public.  I have little doubt that many of the justices in the majority in Windsor (the DOMA case) would have liked to go all the way and hold same sex marriage to be constitutionally required under the Equal Protection Clause, but did not do so because they believed that there would be strong resistance throughout the country to such a holding.  This is true, even though such a holding would have made much more sense, from both originalist and nonoriginalist jurisprudential perspectives, than Windsor did. Thus, these justices were “constrained” to support the decision in Windsor.  But notice this constraint did not affect the outcome of the case, only the reasoning and the current meaning of the precedent.

There may be other constraints – a sense of what the culture of lawyers would accept as a constitutional arguments might be one – but I believe the above three are the main ones.  Given the weakness of the constraints, one might ask why judicial opinions and law review articles do not look like simple statements of political preferences. Instead, they read like inquiries into the legal materials.

One cynical way to view this issue is that the reference to legal materials is just a lot of window dressing or misdirection (to mix metaphors) that obscure what is really going on.  Another possibility is that the discussion of legal materials is a necessary part of the analysis – to ensure that the text and the precedents do no actually block a decision.  So it is not irrelevant, although it may not be the key consideration.

While I think there is something to be said for each of these possibilities, another possibility is even more interesting.  It may be that the legal materials have more of a constraint the less one cares about the result on political grounds. Thus, when the justices decide cases involving mundane issues, one would expect the legal materials to matter more. When the justices decide hot button issues, the materials matter less –quite a bit less.

One way to think of the way in which a nonoriginalist liberal activist’s political preferences fit into the law is as if the political preferences are the lawyer’s client.  When a lawyer writes a brief for a client, he employs the legal materials to the extent possible to support his client, even if they don’t really support the client. Similarly, when a nonoriginalist liberal activist writes an article or decision to support his political principles, he employs the legal materials to the extent possible to support those principles, even if they don’t really support them.  That is why these opinions seem legal, even though in a fundamental sense, they are not.

While in this post I have discussed liberal nonoriginalists, I should not only pick on that approach. Libertarian and conservative nonoriginalists display many of the same problems, although there are important differences.  Perhaps I will discuss these approaches in the future.

(Cross posted at Liberty Law Blog)

James E. Pfander & Nassim Nazemi: The Anti-Injunction Act and the Problem of Federal-State Jurisdictional Overlap
Michael Ramsey

James E. Pfander (Northwestern University School of Law) and Nassim Nazemi (Northwestern University School of Law) have posted  The Anti-Injunction Act and the Problem of Federal-State Jurisdictional Overlap (Texas Law Review, Forthcoming) on SSRN.  Here is the abstract:

Ever since Congress decided in 1789 to confer jurisdiction on lower federal courts over matters that the state courts could also hear, the nation has faced the problem of how to allocate decision-making authority between the two court systems. Central to this body of concurrency law, the federal Anti-Injunction Act of 1793 (AIA) was enacted to limit the power of the federal courts to enjoin state court proceedings. Justice Felix Frankfurter decisively shaped our understanding of those limits, concluding in Toucey v. New York Life Insurance Company that the statute absolutely barred any such injunction. Much of the law of federal–state concurrency has been predicated on Toucey’s account.

In this Article, we offer a new account of the AIA that challenges prior interpretations. Rather than a flat ban on injunctive relief, we show that the AIA was drafted against the backdrop of eighteenth century practice to restrict “original” federal equitable interference in ongoing state court proceedings but to leave the federal courts free to grant “ancillary” relief in the nature of an injunction, to protect federal jurisdiction and to effectuate federal decrees. It was this ancillary power that gave rise to the exceptions that Toucey decried and Congress restored in its 1948 codification.

We draw on our new account of the 1793 and 1948 versions of the Act to address current problems of jurisdictional overlap. Among other things, we raise new questions about the much-maligned Rooker-Feldman doctrine; offer a new statutory substitute for the judge-made doctrine of equitable restraint; and suggest new ways to harmonize such abstention doctrines as Burford and Colorado River. Curiously, answers to these (and other) puzzles were hiding in the careful decision of the 1793 drafters to restrict only the issuance of “writs of injunction” and otherwise to leave federal equitable power intact.

Pfander and Nassim also have a different forthcoming article on the history of the Anti-Injunction Act, noted here.


Bradley Silverman: Originalism and Affirmative Action
Michael Ramsey

Bradley Silverman (Columbia Law School. J.D. '16) has posted Originalism and Affirmative Action (Washington Undergraduate Law Review Vol. VI, Issue III, Spring 2013) on SSRN.  Here is the abstract:

Last fall, the U.S. Supreme Court heard Fisher v. Texas, a case concerning the affirmative action policy at the University of Texas. The decision that the Court hands down later this term could shape affirmative action policy and jurisprudence for decades to come. At least two of the Justices call themselves originalists, saying that the Constitution should be interpreted in light of its original understanding. But what does originalism have to say about affirmative action? In this study, I argue that contrary to some expectations, both the original intent and original meaning inherent in the 14th Amendment’s Equal Protection Clause support reading it to allow states to implement affirmative action policies. Although the Clause is often assumed to mandate colorblindness in the law, the passage of laws affirmatively benefiting African Americans as a racial group by the same Congresses that passed the Reconstruction Amendments indicates that the framers of those amendments did not consider affirmative action to violate equal protection of the law. Furthermore, a unitary reading of the Reconstruction Amendments supports understanding the Equal Protection Clause to prohibit not simply race-conscious laws, but laws that connote stigma or inferiority upon a racial group. Because affirmative action does not imply the inferiority of whites even though it benefits African Americans, it does not violate the 14th Amendment.


Charles Tiefer: Can Congress Make a President Step Up a War?
Michael Ramsey

Somewhat related to this post from yesterday, Charles Tiefer (University of Baltimore School of Law) has posted Can Congress Make a President Step Up a War? (Louisiana Law Review, Vol. 71, 2011, pp. 391-449) on SSRN.  Here is the abstract:

May Congress use its appropriation power to direct the President to step up a war? When Congress uses its spending power for intensifying a war-stepping it up, pressing it more aggressively-against the resistance of a "less hawkish" Commander in Chief, who wins?

This Article posits differences of view in the 2010s toward the Afghanistan war as a way to revisit, generally, the history of constitutional disputes over war-related appropriation riders. Describing the differences in very simplistic terms, a "hawkish" opposition in Congress may gain political strength at any time, such as in 2010 or 2014, not necessarily because of the war issues but perhaps from running on a political platform in which a "hawkish" view of the war is one of the platform's explicit or implicit planks. An elected "hawkish" majority in Congress may want to use tougher measures in the theatre of war than the President. It would enact measures past the bounds of policy set by the President as its way to step up the war.

This Article does not look at such hypotheticals, of course, to discuss their policy implications. Rather, the discussion seeks to develop the analytical structure about whether a "hawkish" Congress may constitutionally enact various kinds of provisions. The provisions at issue have been chosen so as not to aim at restricting war, rather, these make a reluctant Commander in Chief step up a war.

Accordingly, Part II of this Article provides the constitutional history of Congress's war appropriation riders. It develops the key background events, shedding a special light on the Framers' intent in wording the potent "No Appropriation" provision in the negative so that Congress would have a great power to limit, not to force, action. Proper appropriation riders derive great support from the plenary nature, venerable history, and contemporary significance of Congress's power of the purse.

Part III of this Article uses the just-summarized constitutional history to set up and to apply a basic structure to categorize congressional appropriation riders. Although the main focus is to contextualize provisions for stepping up a war, the approach also yields insight regarding all war-related appropriation riders. In light of history, whether provisions are presumptively unconstitutional depends on whether the provision goes to the very core of the Commander in Chiefs more "central" concerns in the war zone: command, disposition of forces, and military campaigns.

Part IV proceeds to apply the analysis to three hypothetical measures, one in each of these categories that Congress might enact years from now in the Afghan conflict. First, Congress may enact a provision that directs the President to make an armed incursion into "border sanctuaries" within Pakistan. Such congressional action would collide with the core of the Commander in Chief's central issue of Campaigning.

The next Section of Part IV studies a congressional mechanism for intrusively overseeing command- a special oversight committee. This Section delves into the under-appreciated history of congressional wartime inquiries. It compares the infamous joint committee that oversaw the conduct of the Civil War with the praiseworthy major oversight inquiry at the start of the Korean War.

The third Section of Part IV analyzes a hypothetical provision as to "shared" issues of Congress and the President, in contrast to the prior examples that affect the "central" Commander in Chief issues. Namely, this Part considers a congressional provision mandating a poppy eradication program. Also, this Part reviews the complex history of military impoundments.

Part V, this Article's conclusion, discusses how consideration of the issues surrounding "more hawkish" congressional action shakes up habitual ways of thinking. This approach invites observers to rethink their settled presumptions. The unspoken assumption has been that a strong Commander in Chief power invariably drives an unwelcome expansion of war. To think otherwise opens new frontiers for study of the war power.

As with the Jerusalem passport case discussed yesterday, I think this analysis, while interesting and useful, at times comes at the question from somewhat the wrong angle.  The initial question should be whether Congress has an Article I power to act in the first place.  I'm skeptical that the Constitution's text conveys many "exclusive" powers to the President, in the sense of powers that allow the President to override powers Article I appears to convey to Congress.  Rather, I think (with Hamilton writing as Pacificus) that there are substantial areas of concurrent power.  Thus I very much doubt that the commander-in-chief power contains much exclusive power (in the sense of excluding otherwise-constitutional acts of Congress).  For example, the Continental Congress gave specific tactical direction to General Washington, even though Washington was styled the "commander-in-chief".

Instead, the way the Constitution typically creates "exclusive" presidential power is by not granting power to Congress in the first place.  As I explained yesterday, that is the way I would approach the Jerusalem passport case: Congress does not have an enumerated power to announce the U.S. view on the question of sovereignty over Jerusalem.  Thus the President has an "exclusive" power -- not because the President's power trumps Congress' power, but because the President is the only one with a relevant power.  Similarly, I would ask what enumerated power of Congress allows Congress to decide questions on the extent of force to be used in war.  Congress has the power to "declare War" but (thanks to Madison's amendment at the Convention) it does not have the power to "make War."

Saikrishna Prakash and I had this exchange on the subject a few years ago (in which he argued that the declare war power gave Congress power to control the extent of military operations once war was declared, and I argued that it didn't).  I'm not sure which of us was right, but I do think that it is the right way to approach these questions.


D.C. Circuit (Rightly) Upholds Executive Power in the Jerusalem Passport Case
Michael Ramsey

Earlier this week the D.C. Circuit (again) decided the long-running Jerusalem passport case (Zivotofsky v. Secretary of State) in the President's favor, invalidating an Act of Congress that allowed U.S. citizens born in Jerusalem to have their passport reflect birth in "Jerusalem, Israel."  (Opinion here; interesting comment by Eugene Kontorovich here).

I agree with the result, though I would get there by a somewhat different route.

According to the court (Karen LeCraft Henderson writing a thorough and scholarly opinion), the President has exclusive power over recognition -- a power found not so much through text and "originalist evidence", which she finds inconclusive after careful consideration, but from longstanding practice dating to the Washington administration.  While Congress has power to legislate regarding passports, the court says, it cannot do so in a way that infringes the recognition power.  The law at stake infringes that power, because sovereignty over Jerusalem is contested and the President, as part of the recognition power, is entitled to avoid taking a position on that question.

I have less confidence that the Constitution directly gives the President an exclusive recognition power (though it might, through the ambassador reception clause).  See here for further skepticism from Jack Goldsmith at Lawfare.  Rather, I think the decisive issue is Congress' power.  The court assumes Congress has power over passports without much textual analysis.  ("Neither party has made clear the textual source of the passport power in the Constitution, suggesting that it may come from the Congress’s power regarding immigration and foreign commerce.").  It may be that Congress has some power over passports from these sources, but the Act in question has nothing to do with either of them.  Instead, it is an attempt to direct U.S. policy regarding the sovereign status of Jerusalem.  Or, put even more sharply, it is an attempt to force the President to make a diplomatic statement endorsing Israel's sovereignty over Jerusalem.

That is the exercise of a diplomatic power, not the exercise of a power over immigration or commerce.  And no other enumerated power even arguably allows Congress to exercise diplomatic power in this context.  In sum, I think the court made the case harder than it needed to be by assuming Congress had an Article I power to pass the law in the first place.  (Similarly Professor Goldsmith, who finds the case a difficult one in the post noted above, appears to assume an Article I power).

There is still the question of the source of the President's power, but this is (for me anyway) an easy one: the President's Article II, Section 1 "executive Power" includes diplomatic power, which in turn includes the power to formulate and announce the United States' position (or lack of position) on the status of Jerusalem.

So I come out in the same place as the court: the President has the exclusive power to speak for the United States on the status of Jerusalem. But rather than saying the President's power overrides Congress' power (which seems a tricky claim given the admitted lack of textual support), I would say the President has the power and Congress doesn't.  And, contrary to Professor Goldsmith, I think that conclusion rests firmly on the Constitution's text.

NOTE:  The D.C. Circuit previously dismissed Zivotofsky's claim as a political question and the Supreme Court reversed (a decision I applauded).  I would add that the D.C. Circuit's decision on the merits confirms that result -- as the new opinion shows, it's just an ordinary separation of powers question that involves ordinary tools of constitutional analysis and does not require the court to engage in any discretionary foreign policy activities that are properly exercised by another branch. 

FURTHER NOTE:  Immodesty compels me to add that the D.C. Circuit's merits decision cites the article I co-authored with Saikrishna Prakash, The Executive Power over Foreign Affairs, 111 Yale L.J. 231 (2001) a couple of times, most notably on p. 18.  Modesty compels me further to add that the citations are principally to our description of Washington administration diplomacy, on which Professor Prakash had the lead.  Congratulations to him.