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45 posts from November 2013


Eugene Volokh on Freedom of the Press
Michael Ramsey

At Volokh Conspiracy, Eugene Volokh:  Freedom for the Press — Protection for an Industry/Profession, or for All Users of a Technology?

And a follow-up:  Freedom of the Press as Protecting All Users of Mass Communications Technology — Responding to the Redundancy Objection.

Professor Volokh is quite simply the leading modern scholar of the original meaning of the First Amendment.  His example of how to use originalism to reinterpret a field should be an inspiration.  (I'm not saying I agree with him on everything, of course.)


The New Filibuster Rule
Mike Rappaport

The Democrats have passed a new rule that prevents the filibuster from being used to block confirmation votes for all presidential nominations, except Supreme Court Justices. In passing this rule, the Democrats used the Constitution or Nuclear Option to change the rules.  The Senate rules require 67 votes to end a filibuster of a change in the Senate rules, which would have prevented the Democrats from changing the filibuster rule.  But many people, including yours truly, argue that this Senate rule cannot constitutionally prevent a majority of Senators from changing the filibuster rule. Hence, the name the Constitutional Option.

But this maneuver has also been termed the Nuclear Option for another reason: its use has been deemed to be like a nuclear attack, which will lead to incredible retaliation. When it has been used in the past, it has almost always led to a compromise shortly afterward to avoid the bitter relations that would have otherwise resulted. So I would not be surprised to see some kind of compromise.

Whether or not a compromise occurs, however, this change is likely to have one enduring consequence. It will be used when the Republicans control the Presidency and the Senate, and the Democrats seek to filibuster Republican nominees. People may remember that the practice of filibustering lower court judicial nominees was established by the Democrats in the early years of the Bush Administration. The new rule, unless changed, will prevent them from doing so again.

Robert Reinstein: Is the President’s Recognition Power Exclusive?
Michael Ramsey

Robert Reinstein (Temple University - James E. Beasley School of Law) has posted Is the President’s Recognition Power Exclusive? (Temple Law Review, forthcoming) on SSRN.  Here is the abstract:

The power of the United States government to recognize foreign states and governments is much broader than the authority merely to place a symbolic stamp of legitimacy on that state or government. Recognition allows foreign governments to establish diplomatic relations with the United States and also confers other substantial benefits on those governments. Despite its importance to foreign relations, the recognition power was not enumerated in the United States Constitution or discussed in the Constitutional Convention or ratification debates.

A recent decision of the Court of Appeals for the District of Columbia Circuit, Zivotofsky ex rel. Zivotofsky v. Secretary of State, is the first to hold, in the context of a conflict between an act of Congress and an executive decision, that the recognition of foreign states and governments is an exclusive executive power. A seemingly innocuous passport statute created a conflict between executive and congressional policies over a controversial, and as yet unresolved, political issue: the status of Jerusalem. The court relied on post-ratification history which, it concluded, established that Presidents consistently claimed, and Congress consistently acknowledged, that the recognition power was exclusively an executive prerogative. The passport statute was held to unconstitutionally infringe on the Executive’s recognition power.

This Article provides the first in-depth analysis of the historical relationship of the executive and legislative branches to the recognition power in nearly a century. The Article examines in detail the post-ratification recognition events discussed by the Court of Appeals, beginning with the decisions of the Washington administration during the Neutrality Crisis in 1792-93. The Article also examines events not addressed by the Court of Appeals, most significantly early congressional acts of recognition and the 1979 Taiwan Relations Act.

The Article concludes that post-ratification history establishes an authority in the President to recognize foreign states and governments but provides little support for any claim of an exclusive recognition power. However, post-ratification history is not by itself dispositive and the legal importance of the history is examined through the lens of certain fundamental questions, including the significance of presidential and congressional inactions, acquiescence and acknowledgement. The Article analyzes these questions through constitutional doctrine and normative values, ultimately concluding that the constitutional text, original understanding, structure, and post-ratification evidence do not support an exclusive recognition power in the Executive. The President’s recognition power is subject to the legislative control of Congress.

Professor Reinstein is quickly making a mark in this area, see also here and here.

For my take on the D.C. Cirucit's Zivotofsky opinion (in which I agree with the result but not the reasoning, even though the court cites me), see here.  My question: from what enumerated power does Congress get recognition authority?


Berman and Toh on the New and Old Originalism: Part I – The New Originalism

Recently, Mitch Berman and Kevin Toh have published an article entitled “On What Distinguishes New Originalism from Old: A Jurisprudential Take.” While I don’t know Toh’s work, Berman is a well respected scholar who is a critic of originalism, having penned a widely read article entitled “Originalism is Bunk.” I like Mitch, but I have serious concerns about this new article and so I thought I would write a couple of posts about it.

The article covers a lot of ground in relatively brief space and is quite dense, but its main points can be summarized. A common theme in originalist scholarship is to draw a distinction between the old and the new originalism. The most common distinction is that the old originalism advocated original intent and the new originalism supports original public meaning. Berman and Toh argue instead that the old originalism focused on theories of adjudication – that is, how judges should decide cases – whereas the new originalism is concerned with theories of law – that is, how the law of the Constitution should be understood.

Both aspects of this claim are interesting and the assertion about the new originalism seems novel. Yet, in both cases, I think the claims are mistaken. Finally, Berman and Toh also discuss the theory that John McGinnis and I defend in our new book. I also believe that Berman and Toh mischaracterize that theory.

The New Originalism

Let me start with the Berman and Toh claim that the new originalism is defined by its focus on theories of law. This is a startling claim. While Berman has in his own work been interested in such theories, that is not how new originalist theories have been understood. Nor, in my opinion, is that what such theories are about.

Berman and Toh’s principal evidence for this claim is their view that Gary Lawson and Keith Whittington are focused on theories of law. Since I didn’t really have time to review both of them, I just went back and looked at Lawson to confirm my memory that this is not what he had in mind.

In a well known article, On Reading Recipes . . . and Constitutions, Lawson drew a distinction between “theories of interpretation,” which “concern the meaning of the Constitution,” and “theories of adjudication,” which concern the manner in which public officials “resolve disputes.” The point, as I understood it, is that the meaning of the Constitution is one thing, whether to follow it is another.

Berman and Toh read Lawson to be claiming that theories of interpretation involve claims about the nature of the constitution as law. But that is not persuasive. Rather, Lawson is really interested in the meaning of the document. He writes “Interpretation is a search for the meaning of the interpreted document.”

Supporting this interpretation is also the fact that Lawson in other places analogizes the interpretation of the Constitution with the interpretation of the Articles of Confederation. The latter is not about law, as the Articles are no longer the law. Similarly, Lawson’s claims about the Constitution are also not about the law, but about the meaning of the document. Additional support is derived from the fact that Lawson says nothing about theories of law, such as Hart’s, which one would expect him to discuss if he were making claims about theories of law.

I should add that Berman and Toh admit that new originalists Randy Barnett and Larry Solum are not making claims about theories of law. Thus, even if one assumes (simply because I haven’t gone back to read him again) that Whittington is presenting a theory of law, that Lawson, Barnett, and Solum are not making such claims strongly suggests that Berman and Toh are mistaken about the dominant focus of the new originalists.

(Cross posted at the Liberty Law Blog)

Michael J. Perry: Human Rights in the Constitutional Law of the United States
Michael Ramsey

Michael J. Perry (Emory University School of Law) has published the book Human Rights in the Constitutional Law of the United States (Cambridge University Press, 2013).  

Perry has posted the Introduction on SSRN.  Here is the abstract:

The title of my new book references the subject matter that has been my principal scholarly obsession since the beginning of my academic career: Human Rights in the Constitutional Law of the United States.

In the book -- the introduction to which is available here for download -- I elaborate three internationally recognized human rights, each of which, as I explain, is entrenched in the constitutional law of the United States: the right not to be subjected to “cruel and unusual” punishment, the right to moral equality, and the right to religious and moral freedom. I then pursue three inquiries: Does punishing a criminal by killing him violate the right not to be subjected to “cruel and unusual” punishment? Does excluding same-sex couples from civil marriage violate the right to moral equality or the right to religious and moral freedom? Does criminalizing abortion violate the right to moral equality or the right to religious and moral freedom?

I also pursue a fourth inquiry: In exercising judicial review of a certain sort -- judicial review to determine whether a law (or other public policy) claimed to violate a constitutionally entrenched human right does in fact violate the right -- should the Supreme Court of the United States inquire whether in its own judgment the law violates the right? Or, instead, should the Court proceed deferentially, inquiring only whether the lawmakers’ judgment that the law does not violate the right is a reasonable one? In short, how large/small a role should the Court play in protecting (enforcing) constitutionally entrenched human rights?

I have long been engaged by, and have before written about, questions such as those I address in this book: questions about the implications of constitutionally entrenched human rights -- and the question about the proper role of the Supreme Court in adjudicating such questions. (The title of my first book, published in 1982: The Constitution, the Courts, and Human Rights.) Indeed, I have before written about each of the three constitutional controversies at the heart of this book: capital punishment, same-sex marriage, and abortion. Because I was not satisfied with my earlier efforts, I decided to revisit the controversies.

Professor Perry has also posted two papers on SSRN which draw on material from the book.  The titles are:

1) The Morality of Human Rights (University of San Diego Law Review, Forthcoming)

2) Freedom of Conscience as Religious and Moral Freedom (Journal of Law and Religion, Forthcoming)


Respondents' Brief Filed in Recess Appointments Case
Michael Ramsey

Via How Appealing, here's a link to the recently-filed respondents' brief in Noel Canning v. NLRB, the recess appointments case.  From the introduction:

The Executive Branch ... asks this Court to expand [the recess appointments clause] to the point that it completely overwhelms the [appointments clause]. In this single case, it attempts to eradicate all meaningful limitations on the President’s recess-appointment power, asserting authority to make recess appointments: (1) whenever the President deems appropriate, so long as he believes there has been a "cessation" in the Senate Session (or, perhaps, a cessation exceeding three days); (2) to fill whatever office the President chooses, no matter how long vacant; and (3) regardless of whether the Senate is convening regularly. Taken together, the Executive’s contentions yield a virtually unlimited unilateral appointments power.

The Constitution does not "hide elephants in mouseholes." Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 468 (2001). It is inconceivable that this narrow "supplement" supplies the extravagant power the Executive now claims.

Amicus briefs in support are due on Monday, 11/25.

Seth Barrett Tillman on Executive Authority to Refuse to Enforce a Statute
Michael Ramsey

Seth Barrett Tillman sends these comparative law thoughts on the President's enforcement discretion:

It's foreign, but interesting ...

Duggan v An Taoiseach [1989] I.L.R.M. 710, 730 (Ireland) (Duggan, P.) (finding unlawful the decision of the government not to collect mandatory taxes due under a statute); Norris v Attorney General [1984] I.R. 36, 81 (McCarthy, J.) ("If there were a positive decision made by the [police] or the Director of Public Prosecutions never to prosecute in any such case [under a particular statute], in my view it would be unlawful as a positive decision not to enforce the law."); James Casey, Constitutional Law in Ireland 222 (2000) ("[T]he executive cannot by ipse dixit suspend the operation of a statute" but distinguishing the position of Ireland from that of the UK where the concept of "prerogative Order in Council" remains alive).

A v Hayden (No. 2) (1984) 156 C.L.R. 532 (Austr.) (executive cannot authorise breach of the law); see also Yip Chiu-Cheung v R [1994] 2 ALL E.R. 924 (Privy Council) (same).

The citations above appear in Casey, Constitutional Law in Ireland, at 222-223 & n.8.

Andrew Koppelman: Why Scalia Should Have Voted to Overturn DOMA
Michael Ramsey

In the Northwestern University Law Review Colloquy, Andrew Koppelman: Why Scalia Should Have Voted to Overturn DOMA.  From the introduction:

Justice Antonin Scalia claims that when the Supreme Court invalidated Section 3 of the Defense of Marriage Act (DOMA) in United States v. Windsor, it improperly impugned Congress’s motives. The Court held that the statute, which withheld federal recognition from same-sex marriages for all purposes throughout the U.S. Code, reflected a “bare congressional desire to harm a politically unpopular group.” Scalia is right that opposition to same-sex marriage is not the same as hatred of gays.

Yet Scalia’s own methods of statutory interpretation support what the Court did in Windsor. If one infers the statute’s purpose from its language and interaction with other statutes, with no attention to the legislative history or the subjective intentions of the law’s authors, the result the Court reached is inescapable. The statute may not precisely reflect a bare desire to harm, but it reflects an extreme indifference to the welfare of gay citizens that violates equal protection.

Part I of this Essay describes the debate among the Justices about the purpose of DOMA. Part II uses Scalia’s theory of statutory interpretation to discern DOMA’s purpose. Part III explains why DOMA, as understood through that theory, violates the Equal Protection Clause. The last Part concludes.


Nicholas Parrillo: The Administrative State, the Judiciary, and the Rise of Legislative History, 1890-1950
Michael Ramsey

In the current edition of the Yale Law Review, Nicholas R. Parrillo (Yale Law School) has the article Leviathan and Interpretive Revolution: The Administrative State, the Judiciary, and the Rise of Legislative History, 1890-1950 (123 Yale L.J. 266).  Here is the abstract:

A generation ago, it was common and uncontroversial for federal judges to rely upon legislative history when interpreting a statute. But since the 1980s, the textualist movement, led by Justice Scalia, has urged the banishment of legislative history from the judicial system. The resulting debate between textualists and their opponents—a debate that has dominated statutory interpretation for a generation—cannot be truly understood unless we know how legislative history came to be such a common tool of interpretation to begin with. This question is not answered by the scholarly literature, which focuses on how reliance on legislative history became permissible as a matter of doctrine (in the Holy Trinity Church case in 1892), not on how it became normal, routine, and expected as a matter of judicial and lawyerly practice. The question of normalization is key, for legislative history has long been considered more difficult and costly to research than other interpretive sources. What kind of judge or lawyer would routinize the use of a source often considered intractable?

Drawing upon new citation data and archival research, this Article reveals that judicial use of legislative history became routine quite suddenly, in about 1940. The key player in pushing legislative history on the judiciary was the newly expanded New Deal administrative state. By reason of its unprecedented manpower and its intimacy with Congress (which often meant congressmen depended on agency personnel to help draft bills and write legislative history), the administrative state was the first institution in American history capable of systematically researching and briefing legislative discourse and rendering it tractable and legible to judges on a wholesale basis. By embracing legislative history circa 1940, judges were taking up a source of which the bureaucracy was a privileged producer and user—a development integral to judges’ larger acceptance of agency-centered governance. Legislative history was, at least in its origin, a statist tool of interpretation. 

(Via Orin Kerr at  The Volokh Conspiracy)


Kurt Lash: Stare Decisis and the Role of Normative Theory
Michael Ramsey

Kurt T. Lash (University of Illinois College of Law) has posted The Cost of Judicial Error: Stare Decisis and the Role of Normative Theory (Notre Dame Law Review, Forthcoming) on SSRN.  Here is the abstract:

Before a justice on the Supreme Court applies stare decisis in a constitutional case, they must first determine whether the application of the doctrine is appropriate. This requires the application of normative theory. Depending on the justice’s normative theory, some judicial errors impose such high costs that application of the doctrine of stare decisis is inappropriate and the error should simply be rectified. Even in those constitutional cases where theory allows the maintenance of judicial error as a legitimate option, considerations of normative theory affect how the justice ought to balance the costs of upholding against the costs of overruling erroneous precedent. In cases where theory suggests that the costs of judicial error are relatively low, avoiding substantial harm to rule of law values might reasonably suggest that the Court should “stand by” the flawed decision. Where theory suggests the costs of error are high, however, only the most severe disruption to the rule of law can justify maintaining a flawed precedent. This balancing of normative theory and stare decisis occurs in all judicial applications of stare decisis, though not always in a transparent manner.

Focusing on some of the more high profile discussions of stare decisis by the Rehnquist and Roberts Courts, this essay explores how judicial application of stare decisis generally includes a normative evaluation of the costs of judicial error. The counter-balancing impact of normative theory is especially evident in the Roberts Court decision to overrule Austin v. Michigan Chamber of Commerce in Citizens United v. Federal Election Commission. Building upon the implicit normative theory of Citizens United, the essay sketches a more complete theory of stare decisis that takes into consideration both the rule of law considerations of stare decisis and the normative considerations that flow from the theory of popular sovereignty.
(Via Richard Reinsch at Liberty Law Blog).