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51 posts from April 2014


Ryan Scoville (and Eugene Kontorovich) on the Jerusalem Pasport Case
Michael Ramsey

At Opinio Juris, Ryan Scoville (Marquette Law) has a great post on Zivotofsky v. Kerry, the Jerusalem Passport case.  From the introduction:

Recently the Supreme Court granted certiorari in Zivotofsky v. Kerry to resolve an important question in U.S. foreign relations law: does the power to recognize foreign states and governments belong exclusively to the President, or do the political branches hold it concurrently? More specifically, Zivotofsky concerns the constitutionality of Section 214(d) of the Foreign Relations Authorization Act of 2003, which requires that upon request from a U.S. citizen born in Jerusalem the Secretary of State must record “Israel” as the place of birth on the individual’s passport. Oral arguments are scheduled for the fall. The case has generated a lot of interesting commentary, the most impressive of which is a pair of law review articles (here and here) by Robert Reinstein, who uses textual and historical analysis to argue that the President shares the recognition power with Congress. In this post, I want to sketch out an alternative view that grants substantial recognition powers exclusively to the President while also making sense of Professor Reinstein’s historical research.

Briefly, Professor Scoville's claim (which I generally think is right) is that the President has an exclusive power of de jure recognition but Congress has a shared power of de facto recognition.  As he explains:

... I want to suggest first that it’s important to be precise about what “recognition” means. International law of course differentiates between ... recognition de jure and de facto. With de jure recognition of a state, the United States expresses that a given political unit qualifies as a state under international law and thus holds the rights and obligations that accompany statehood, including the right to invoke sovereign immunity and the act of state doctrine as defenses in court. De jure recognition of a government, by contrast, is acknowledgment of a foreign government as the depository of a state’s sovereignty. This kind of recognition signals a general willingness to enter into normal diplomatic relations and facilitate the government’s exercise of the state’s sovereignty vis-à-vis the United States. Finally, de facto recognition also entails a willingness to carry on official relations, but without necessarily saying anything about the particular form those relations will take. One can de facto recognize a foreign government, for example, without exchanging ambassadors or providing its leaders with immunity from suit. ...

These distinctions offer a useful way to conceptualize the separation of powers problem in Zivotofsky. To say that Congress holds a concurrent power to recognize de jure would mean that Congress can formally establish the willingness of the United States to enter into normal diplomatic relations with a foreign government. It would also mean that Congress can decide who gets to invoke sovereign immunity and the act of state doctrine in court and otherwise exercise the prerogatives of statehood under international law. But if Article I provides only for a concurrent power to recognize de facto, then Congress can do no more than establish official relations that fall short of de jure recognition. This might include, for example, trade relations.

This all seems rights as far as it goes, and it's a very insightful refinement of the recognition arguments in Zivotofsky.  And, as he goes on to say, it suggests that the President does not have an exclusive power to say whether Jerusalem is in Israel (because that is -- probably -- a de facto rather than a de jure conclusion).

Eugene Kontorovich has a related post at Volokh Conspiracy arguing even more strongly that Zivotofsky does not implicate the President's exclusive recognition power.  Again, I entirely agree.  The President does not, directly, have an exclusive recognition power.  The President has an exclusive power to receive ambassadors.  That power encompasses the de jure recognition power Professor Scoville discusses, because de jure recognition is exercised by receiving ambassadors.  But it does not encompass de facto recognition (or at least not some aspects of it), because de facto recognition can be done other than by receiving ambassadors (for example, by trade relations, again as Scoville says).  And, as Kontorovich says, the passport case has nothing to do with receiving ambassadors.

But, to repeat myself, I don't think this gets Professors Scoville and Kontorovich where they want to be in Zivotofsky itself.  Congress needs a power to act in the first place, before we even get to the question of exclusive presidential power.  I entirely agree that Congress could, for example, pass trade regulations that defined "products of Israel" to include products made in Jerusalem -- and even that said "for purposes of this statute Jerusalem shall be treated as part of Israel."  But Congress' power over passports is much more tenuous. 

A passport is a communication from the State Department to foreign governments.  At least, that was its historical function.  Thus it is an exercise of diplomacy.  Congress does not have a general power over diplomacy.  (Professor Scoville may disagree, because he has a great article somewhat to the contrary).  But in my view, Congress has no enumerated-power-based interest in having Zivotofsky's passport say anything about the status of Jerusalem.  

Professor Kontorovich suggests that the passport power arises from Congress' power over immigration and naturalization, but that also seems a stretch.  I agree that Congress' naturalization power allows Congress to declare that Zivotofsky is a U.S. citizen because his parents are U.S. citizens.  But the status of the territory on which he was born is, for immigration and naturalization purposes, irrelevant.

In sum, I think the more interesting issue in this case is where Congress might get a power to force a passport to reflect Jerusalem's status.  That Congress can declare its view of Jerusalem's status in statutes clearly within its enumerated power seems correct.

Further note: Ryan Scoville also has his own blog on international matters, which is worth watching for constitutional foreign affairs law commentary.

Evaluating Justice Black
Mike Rappaport

My last post argued that Justice Hugo Black was not the most overrated justice and in fact was a first rate justice. I thought I would comment here on attempts to rate Justice Black as a justice – a matter that was recently debated by Will Baude and David Bernstein of the Volokh Conspiracy.

I always have a hard time with lists of great justices or great presidents, because it is always difficult for me to determine what are the appropriate criteria. As a libertarian, I have certainly been upset by the liberal or progressive historians or law professors selecting justices or presidents based on their own politics. Its fine if people want to rate officials based on their politics; the raters, however, should make clear that is what they are doing.

Attempts at nonpolitical criteria avoid the problems of political ratings, but introduce other challenges. One might judge presidents or justices based on how consequential they were, but unless one smuggles in political criteria, one can be an enormously bad president or justice and be very consequential.

Will defended Justice Black on grounds of “historical significance and legal ability.” Historical significance appears to be nonpolitical. Legal ability could be political or nonpolitical, depending on how one understands legal ability.

My defense of Justice Black is based on normative criteria – I believe that Black was an originalist/textualist and that is the right way to interpret the Constitution. While I acknowledge that Black probably got some textual and historical issues wrong, he still had the correct goal and did not appear to pursue the goal in a bad faith way. Especially given the period during which he served, Black’s achievement in pursuing originalism and doing so in a way that avoided many of the mistakes that others made (such as dismissing incorporation) was significant.

David A. Simon: Constitutional War Termination Powers and the Conflict Against Al Qaeda
Michael Ramsey

David A. Simon (Independent) has posted Ending Perpetual War? Constitutional War Termination Powers and the Conflict Against Al Qaeda (Pepperdine Law Review, Vol. 41, No. 685, 2014, Forthcoming) on SSRN.  Here is the abstract:

This Article presents a framework for interpreting the constitutional war termination powers of Congress and the President and applies this framework to questions involving how and when the war against Al Qaeda and associated forces could end. Although constitutional theory and practice suggest the validity of congressional actions to initiate war, the issue of Congress’s constitutional role in ending war has received little attention in scholarly debates. Theoretically, this Article contends that terminating war without meaningful cooperation between the President and Congress generates tension with the principle of the separation of powers underpinning the U.S. constitutional system, with the Framers’ division of the treaty-making authority, and with the values they enshrine. Practically, this Article suggests that although the participation of both Congress and the President in the war termination process may make it more difficult to end a war, such cooperative political branch action ensures greater transparency and accountability in this constitutional process.

This Article also examines normative questions about the role of the President and Congress in exercising their respective war termination powers, and argues that the treaty-making process represents an approach to war termination that best reflects the constitutional values of the interdependence of the political branches, while checking interbranch rivalry and preserving the constitutional and foreign relations prerogatives of Congress and the President.


Paul Horwitz Replies to Steve Smith on Religious Freedom
Michael Ramsey

Paul Horwitz (University of Alabama School of Law) has posted More 'Vitiating Paradoxes': A Reply to Steven D. Smith — And Smith (Pepperdine Law Review, forthcoming) on SSRN.  Here is the abstract:

This is a reply to Steven D. Smith's Brandeis Lecture, "The Last Chapter?" That lecture is substantially drawn from the concluding pages of his fine recent book, The Rise and Decline of American Religious Freedom. In the lecture and the book, Smith explores what he calls some "vitiating paradoxes" of some of the key concepts that undergird the conventional account of American religious freedom, and argues that those paradoxes may render religious freedom especially vulnerable in an age of increasing liberal egalitarianism. He also offers a competing account of religious freedom, one that involves both a "soft constitutionalism" approach to the Establishment Clause and a revival of some form of "freedom of the church."

My reply is basically an internal account, supportive in some respects and critical in others. One of the main contributions that Smith has made to law and religion scholarship over the years is his skillful deployment of critical tools to reveal flaws in the underpinnings of Religion Clause law and theory. He is, I suggest, the charter member of the law and religion branch of a rather small but valuable school: Conservative Critical Legal Studies. In this reply, I take his critical views on board and wonder where, if anywhere, the "potentially vitiating paradoxes" that he identifies in the conventional account of religious freedom end; I also apply Smith's critical framework to the competing account of American religious freedom that he offers. In particular, I question his recommendation of some form of "soft constitutionalism" limited essentially to the Establishment Clause; explore the difficulties involved in what I suggest is a growing reconciliation, including among conservatives, to the Supreme Court's decision in Employment Division v. Smith; and ask whether we might not view arguments for "freedom of the church" as a kind of salvaging device for those who favor a "soft" or jurisdictional reading of the Establishment Clause, and who have come around on Employment Division v. Smith, while still seeking to preserve some measure of church autonomy.

Was Justice Black the Most Overrated Justice? No way!
Mike Rappaport

Cass Sunstein has a column arguing that Justice Hugo Black “who served from 1937 to 1971, is the court’s most overrated justice.” I strongly disagree with Sunstein (hardly the first time); I think Black is one of the best justices who served during the middle of the 20th century.

Sunstein likes Black’s generally liberal decisions, but he is critical of Black’s methodology of textualism and originalism. Sunstein begins with Black’s textualism, writing:

Too much of the time, Black claimed that the text of the Constitution required a particular result, when it did nothing of the kind. He famously defended his free speech absolutism by noting that the First Amendment “provides, in simple words, that ‘Congress shall make no law ... abridging the freedom of speech, or of the press.’ I read ‘no law ... abridging’ to mean no law abridging.”

But Sunstein rightly points out that the key question is what “freedom of speech” means and many laws that interfere with speech may not interfere with freedom of speech.

Next Sunstein moves on to Black’s originalism:

If you believe that the Constitution means what it originally meant, you might be able to make more progress by consulting history.

Some people think that if the Establishment Clause is understood literally, it merely bans the government from establishing an official church. Others believe that the government must avoid any kind of religious favoritism -- but that it need not respect any wall. It is not easy to avoid the conclusion that the idea of a “high and impregnable” wall came, at least in part, from Black’s own convictions.

Sunstein may be right that Black viewed the history in a biased manner to support results he desired, although to be fair scholars disagree about this.

But even assuming Sunstein is right about Black on text and history, that does not eliminate the value of what Black did (especially as compared to the other justices, who after all, largely followed their own political convictions). Black was an important voice for originalism (and textualism) during a period when it was scoffed at by the legal world (much as Sunstein continues to scoff at it.) Thus, Black had the correct view of constitutional interpretation – which in my view is the most important issue in constitutional law – during a period when almost no one else did. That is an impressive achievement.

Moreover, if Black got the text and history wrong, within an originalist enterprise, that is more easily correctable than if Black was using other interpretative approaches. If one accepts originalism – especially a version that recognizes significant input from the originalist materials – then the possible mistakes that Black made are more easily correctable. Other scholars and judges can see where the mistakes were made, since they based on text and history.

Contrast the ease of correcting an error when the justice follows the wrong position. Sunstein likes that Black was “on the right side of history.” Even assuming we know what the “right side of history” means in the abstract, how do we show that someone’s views are the right side?

Finally, it is a bit unfair to treat Black as getting the text and history wrong consistently. He sometimes voted based on the text, such as in the Contracts Clause case of City of El Paso v. Simmons, against what we would predict his political views were.  And Justice Black appears to have gotten right the incorporation of the Bill of Rights under the Privileges or Immunities Clause

In the end, Justice Black was a first rate justice. He was an originalist when almost no one else was and that counts for quite a bit.

(Cross posted at Liberty Law Blog)


The Cell Phone Search Cases: Justice Scalia as the Swing Vote?
Michael Ramsey

In the L.A. Times, David Savage: Scalia set to play key role in Supreme Court smartphone case (via How Appealing).

Justice  Antonin Scalia, the Supreme Court's new champion of the 4th Amendment, is likely to play a crucial role Tuesday when the court hears this year's most important search case: whether the police may routinely examine the digital contents of a cellphone confiscated during an arrest.


In the past, defense lawyers did not look first to the conservative Scalia as an ally. But in recent years, he has insisted on forbidding the kinds of "unreasonable searches" that he says would have troubled the framers of the Constitution.

Last week, he slammed the high court's majority for serving up a "freedom-destroying cocktail" in an opinion that gave police a free hand to stop cars on the highway based solely on an anonymous tip.

Last year, he fired off a fierce dissent when the court ruled that police may routinely take DNA swabs from people who are arrested.

He wrote the decision that accompanied a 5-4 ruling last year banning police from using drug dogs to sniff at the front of a house and a 2012 ruling barring police from attaching a GPS tracking device to a car.

With an eye toward Scalia, lawyers in the cellphone case have carefully quoted the 4th Amendment, which protects the "right of the people to be secure in their persons, houses, papers and effects." In the 21st century, they say, many people store their "papers and effects" on a mobile device.

The cell phone search cases (Riley v. California and United States v. Wurie), are set for argument tomorrow (4/29).

With apologies to all who have written so much on this issue, the more I think about it, the less difficult it seems.  Carrying a smartphone is like carrying a big (really big) box of papers in public.  If you get arrested carrying a big box of papers in public, can the police read the papers?  I'm entirely ignorant on criminal procedure issues, so I don't know the answer, either for today or for 1791/1868.  But it's the same answer, is it not?

Apparently the defendants don't want to frame it this way.  From the David Savage article:

"Private information used to be kept at home on paper, including your photos," said Elizabeth Wydra, counsel for the Constitutional Accountability Center [supporting defendants]. "Now they're in your pocket on a phone..."

Well, in earlier times people could make a decision to leave their private information at home or bring it out in public.  They still can.  I don't see the constitutional difference, merely because it's now easier to bring it out in public.  If the rule is, the police can search everything you have on you when you are arrested, that's still the rule, even though people are now choosing to have more things on them.

On the other hand:

Defending the search, California Deputy Atty. Gen. Christine Levingston Bergman argued the court should not devise a new rule for smartphones. Though the technology may be more advanced, "the phone and video clips at issue here are not different in kind from wallets, address books, personal papers and other items that have long been subject to examination by police," she said in her brief to the court.

The first part of this sounds right, but as to the conclusion: really? Police can search address books, personal papers, etc., that you happen to have in your pocket when they arrest you?  I would like some evidence that this was the rule in 1791 before I accepted this argument.  If someone is stopped for a traffic violation (as the petitioner in the Riley case was), I have a hard time seeing how the police have reason to read his address book (paper or electronic).

President Obama’s Decision to Sign and Not Enforce
Mike Rappaport

Recently, President Obama signed a bill into law and then announced that he would not enforce (or at least feel bound by) a provision in the bill. Once again, President Obama has aggressively asserted executive power – in a way that prior Presidents have, but that he and Democrats criticized before he became President.

The law prohibited admittance to the U.S. by representatives to the United Nations determined to have "engaged in terrorist activity" against the U.S. or its allies. “Obama, in a signed statement attached to the measure, warned the legislation curtailed his "constitutional discretion" and that he planned to treat the law as ‘advisory.’” Obama could have vetoed the law, but he chose to sign it and then not regard it as legally binding.

There are several positions that one can have – based on the Constitution’s original meaning – in a situation where the President is presented with a bill that contains an unconstitutional provision.

1. One might believe the President has discretion to sign the bill and then to not enforce the unconstitutional provision. This appears more or less to be the position of Presidents of both parties.

2. At the opposite extreme, one might argue that the President has a duty to veto laws that he believes are unconstitutional. This is Sai Prakash’s position.

3. A less extreme position is that the President would normally have a duty to veto a law that he regards as unconstitutional, but this duty can be outweighed by other obligations. For example, the President might believe that the bill implements some constitutional obligation, such as the constitutional requirement to provide equal protection of the laws and that this obligation can outweigh the obligation to veto the unconstitutional bill. This is Will Baude’s position.

4. Another intermediate position – my position – is that the President can never do what President Obama did in this case – sign a bill and then not enforce a provision in the bill. One might defend the duty of the President to veto laws that he regards as unconstitutional, as Sai Prakash does, but I am not certain of the originalist case for this. One might argue, after all, that the President (and the Congress) is not obliged to veto (or vote against) such bills or not categorically obliged to veto them. In other words, one might argue that the President (and the Congress) does not have the same categorical obligation to enforce the Constitution as the judiciary does.

But a President cannot argue that he is not required to follow the Constitution by vetoing the bill, if he also argues that he has the power to not enforce unconstitutional statutory provisions. The basis for not enforcing statutory provisions is that the President is obligated by the Constitution to give it priority over statutes. But if that is his position, then he cannot argue that he does not have to veto an unconstitutional bill. Hence, a President can never sign a bill and then not enforce a provision in the bill he just signed.

Will Baude’s argument that the President’s obligation to veto a bill that contains an unconstitutional provision can be overridden does not, in my view, allow the President to sign a bill and then not enforce an unconstitutional provision.

The Constitution often imposes obligations that must be implemented in accordance with other constitutional requirements. For example, the Equal Protection Clause might require the President to take action, but that action might require statutory authority. In that case, the President could not fulfill his obligation if Congress does not provide the statutory authority. Similarly, if the President must veto a bill with an unconstitutional provision, then his other obligations under the Constitution cannot override his obligation to veto the bill.

Julian Davis Mortenson: Law Matters, Even to the Executive
Michael Ramsey

In the current issue of the Michigan Law Review, Julian Davis Mortenson (University of Michigan Law School) has the article Law Matters, Even to the Executive (112 Mich. L. Rev. 1015), reviewing Jack Goldsmith's book Power and Constraint: The Accountable Presidency After 9/11. (W.W. Norton & Co. 2012) and  Eric A. Posner and Adrian Vermeule's book The Executive Unbound: After the Madisonian Republic (Oxford University Press. 2011).  Here is the abstract: 

In both constitutional and international law, many legal rules cannot be implemented without what most people would describe as the voluntary compliance of their target. Is that really “law”? Or is rule compliance in such circumstances just an expression of “interests”? Forget jurisprudence for the moment. As a practical matter, what does it mean to work as a lawyer in a field where the rules are not coercively enforced against private parties by an independent judiciary whose orders are implemented by a cooperative executive? This question has particularly high stakes for national security policy, where we find judicial deference at its highest, the centralization of modern government at its most pronounced, delegations of authority to the executive at their broadest, and contempt for idealism at its most self-satisfied.

Here is the description of Goldsmith's book from Amazon:

Conventional wisdom holds that 9/11 sounded the death knell for presidential accountability. In fact, the opposite is true. The novel powers that our post-9/11 commanders in chief assumed—endless detentions, military commissions, state secrets, broad surveillance, and more—are the culmination of a two-century expansion of presidential authority. But these new powers have been met with thousands of barely visible legal and political constraints—enforced by congressional committees, government lawyers, courts, and the media—that have transformed our unprecedentedly powerful presidency into one that is also unprecedentedly accountable.

These constraints are the key to understanding why Obama continued the Bush counterterrorism program, and in this light, the events of the last decade should be seen as a victory, not a failure, of American constitutional government. We have actually preserved the framers’ original idea of a balanced constitution, despite the vast increase in presidential power made necessary by this age of permanent emergency.

Here is the description of Posner and Vermeule's book from Amazon:

Ever since Arthur M. Schlesinger Jr. used "imperial presidency" as a book title, the term has become central to the debate about the balance of power in the U.S. government. Since the presidency of George W. Bush, when advocates of executive power such as Dick Cheney gained ascendancy, the argument has blazed hotter than ever. Many argue the Constitution itself is in grave danger. What is to be done? The answer, according to legal scholars Eric Posner and Adrian Vermeule, is nothing. In The Executive Unbound, they provide a bracing challenge to conventional wisdom, arguing that a strong presidency is inevitable in the modern world. Most scholars, they note, object to today's level of executive power because it varies so dramatically from the vision of the framers. But there is nothing in our system of checks and balances that intrinsically generates order or promotes positive arrangements. In fact, the greater complexity of the modern world produces a concentration of power, particularly in the White House. The authors chart the rise of executive authority straight through to the Obama presidency. Political, cultural and social restraints, they argue, have been more effective in preventing dictatorship than any law. The executive-centered state tends to generate political checks that substitute for the legal checks of the Madisonian constitution.

My review of the Posner/Vermeule book (co-authored with Saikrishna Prakash) is here.


Ackerman on Barnett, and Barnett on Ackerman
Michael Ramsey

Bruce Ackerman comments on Randy Barnett's We the People: Each and Every One.  Randy Barnett replies here -- with a long discussion of originalism, Chisholm v. Georgia and the Eleventh Amendment, and this conclusion:

For this reason, Ackerman’s characterization of my position as a “rejection of originalism” is a gross distortion. Unsurprisingly, I remain fully committed to originalism but argue, as I always have, for the legitimacy of the originalist constitutional order on normative grounds. The opinions in Chisholm v. Georgia demonstrate that individual popular sovereignty is deeply rooted in our constitutional tradition, but the normative legitimacy of the constitutional order must be supported by reasons that we can affirm here and now.

Sandra Eismann-Harpen: Is He a Soldier Under the Third Amendment?
Michael Ramsey

Sandra Eismann-Harpen (Salmon P. Chase College of Law '13) has posted Rambo Cop: Is He a Soldier Under the Third Amendment? (Northern Kentucky Law Review, Vol. 41, No. 1, P. 119, 2014) on SSRN.  Here is the abstract:

This Comment analyzes whether modern police fall within the meaning of soldier under the Third Amendment. It provides the historical context for the Third Amendment, and reviews the meaning of soldier within this historical context. Then, it analyzes the culture, techniques, weaponry, et cetera of modern police within the framework of the Third Amendment. Because militarized police present the same fundamental risk to American civil liberties that they posed several centuries ago, the judiciary should apply the Third Amendment to both federal and state action, and the definition of soldier under the Third Amendment should include federal, state, and local law enforcement.

(Thanks to Seth Barrett Tillman for the pointer).