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45 posts from June 2014


The Treaty Power and the Necessary and Proper Clause
Mike Rappaport

In my previous post, I argued that the Treaty Power should be interpreted as allowing the President and the Senate to make treaties that involve intercourse with foreign nations, but not simply domestic matters. In this post, I discuss the second constitutional issue raised by the decisions in Bond v. US – whether Congress has the authority under the Necessary and Proper Clause to pass legislation (outside of its other enumerated powers) that carries into execution a treaty. (As with my prior post, I note that I have not fully researched this issues and therefore my views should be regarded as preliminary.)

In analyzing this question, I will assume that the Treaty Power only allows treaties that involve intercourse with foreign nations. If that is true, there are at least two significant positions as to Congress’s authority to carry those treaties into execution:

1. Congress can only pass legislation under the Necessary and Proper Clause that carries into execution Congress’s other enumerated powers, but not the President and Senate’s Treaty Power.

2. Congress can pass legislation under the Necessary and Proper Clause that carries into execution the President and Senate’s Treaty Power.

The first position was articulated by Justice Scalia’s concurrence in Bond, and was joined by Justice Thomas. It was first developed by Nick Rosenkranz. Under this interpretation, while the President and Senate could enter a treaty that involved intercourse with foreign nations that extended beyond Congress’s enumerated powers, Congress could not pass legislation that carried that treaty into execution.

As an initial matter, this position seems strange. After all, a basic purpose of the Constitution was to allow for enforcement of US treaties throughout the country. If Congress could not carry into execution the treaty, then the main enforcement method would be to place the obligations into the treaty itself (which, if it is self executing, is the law of the land), but many provisions for enforcement, such as criminal penalties,are not typically placed into treaties.

One reason why one might read Congress’s authority narrowly is if one was concerned about the federalism implications of such authority. But if the Treaty Power is already confined to matters involving intercourse with foreign nations, one need not worry about Congress exercising unlimited authority. Instead, Congress would be restricted to enforcing treaties involving intercourse with foreign nations. And a check on expansive treaties would be that they required two thirds of the Senate to ratify – a Senate that was initially elected by the State legislatures and therefore was particularly representative of state interests.

The main argument for concluding that Congress does not have the power to enforce treaties is textual. From Justice Scalia’s concurrence:

Start with the phrase “to make Treaties.” A treaty is a contract with a foreign nation made, the Constitution states, by the President with the concurrence of “two thirds of the Senators present.” That is true of self-executing and non-self-executing treaties alike; the Constitution does not distinguish between the two. So, because the President and the Senate can enter into a non-self-executing compact with a foreign nation but can never by themselves (without the House) give that compact domestic effect through legislation, the power of the President and the Senate “to make” a Treaty cannot possibly mean to “enter into a compact with a foreign nation and then give that compact domesticlegal effect.” . . . Upon the President’s agreement and the Senate’s ratification, a treaty—no matter what kind—has been made and is not susceptible of any more making.

How might Congress have helped “carr[y]” the power to make the treaty—here, the Chemical Weapons Conven­tion—“into Execution”? In any number of ways. It could have appropriated money for hiring treaty negotiators, empowered the Department of State to appoint those negotiators, formed a commission to study the benefits and risks of entering into the agreement, or paid for abevy of spies to monitor the treaty-related deliberations of other potential signatories.

Once a treaty has been made, Congress’s power to do what is “necessary and proper” to assist the making of treaties drops out of the picture.

My sense of this textual interpretation is that it shows at best that the language is ambiguous. It is possible that Congress’s power to carry into execution the President’s (and Senate’s) Treaty Power was limited to negotiating the treaty and other related matters. But it is also possible it meant to enforce the actual treaty. It seems permissible to speak of carrying the power to make a treaty into execution by enforcing that treaty. This interpretation gains force from the fact that in England, the King made a treaty and the Parliament passed legislation enforcing it. This was certainly one model that the Framers might have been following.

Given the strong argument for allowing Congress to enforce treaties and the lack of a strong federalism argument against allowing it to do so, I would tentatively interpret this ambiguity in favor of the second interpretation.

John McGinnis on Noel Canning
Michael Ramsey

At Liberty Law Blog, John McGinnis: Noel Canning, Liberty, and the Coase Theorem.  From the introduction:

Conservatives have been celebrating Noel Canning, the recent Supreme Court decision on recess appointments, because President Obama lost 9-0. But in reality the case was a loss both for liberty and the rule of law. While the result was unanimous, the reasoning in Justice Stephen Breyer’s five-person majority dramatically diverged from Justice Antonin Scalia’s four-person concurrence.  And it is the reasoning, not the result, that may shape our constitutional future.  Justice Breyer’s majority opinion elevates practices of the President and Congress over the original meaning of the Constitution.  Adoption of Breyer’s principle of constitutional interpretation threatens our liberty.


Ronald Turner: Justice Clarence Thomas's Conspicuously Nonoriginalist Affirmative Action Jurisprudence
Michael Ramsey

Ronald Turner (University of Houston Law Center) has posted Disparate Treatment: Justice Clarence Thomas's Conspicuously Nonoriginalist Affirmative Action Jurisprudence (19 Texas Journal on Civil Liberties and Civil Rights 251 (2014)) on SSRN. Here is the abstract: 

In the eagerly anticipated but anticlimactic decision in Fisher v. University of Texas at Austin the United States Supreme Court, by a 7-1 vote, held that the United States Court of Appeals for the Fifth Circuit did not correctly apply the strict scrutiny standard of judicial review in assessing the constitutionality of the university’s race-conscious undergraduate admissions process. Joining the Court’s opinion, a concurring Justice Clarence Thomas, an avowed originalist, agreed that the Fifth Circuit did not properly apply strict scrutiny and, going further than the majority, argued that the Court’s 2003 Grutter v. Bollinger decision should be overruled. Conspicuously absent from Justice Thomas’s concurrence is any reference to or application an originalist interpretive methodology. While Justice Thomas has issued originalist opinions in constitutional cases involving, for example, the Commerce Clause, the First Amendment, the Takings Clause, and the Ex Post Facto Clause, he does not employ an originalist analysis when seeking an answer to the question whether certain race-conscious governmental actions violate the Constitution. This essay discusses Justice Thomas’s conspicuously nonoriginalist affirmative action jurisprudence, and provides commentary on the ways in which the nonoriginalist views of Justice Thomas in this area of constitutional law are, in all material respects, the same as Clarence Thomas’s nonjudicial and personal views and positions.


Will Baude on Judge Posner on Riley v. California
Michael Ramsey

At Volokh Conspiracy, Will Baude: A response to Judge Richard Posner on Riley v. California.  (Originalism-related material -- which I agree with -- toward the end of the post, but the rest is good too).


NLRB v. Noel Canning and Originalism (Updated)
Michael Ramsey

First, congratulations to co-blogger Mike Rappaport for having two of his articles cited multiple times in yesterday's recess appointments decision, NLRB v. Noel Canning.

Second, my quick takeaway is that the case is a win for originalism.  True, the majority opinion (Breyer, writing for Kennedy, Ginsburg, Sotomayor and Kagan) is an ugly bit of non-originalism.  But for me, the attraction of this case has always been its potential to show that originalism is possible -- that is, that attention to the Constitution's text and original meaning can (sometimes, not always) supply reasonably determinate answers to current contested questions.

On this ground, I think victory can be declared.  Justice Scalia's concurring opinion is a powerful originalist reading, concluding that  (a) "the recess" of the Senate is the period between sessions, and (b) vacancies that "happen during the recess" are those that arise during the recess (not those that arise earlier and continue into the recess).  The majority does not seriously dispute either point (instead relying on more recent practice and other practical considerations).  More significantly, all of the other originalist and somewhat-originalist-oriented Justices (Thomas, Roberts, Alito) joined the concurrence, lining up with the three originalist-oriented judges in the D.C. Circuit.  And further, their views coincide with the dominant position among originalist-oriented scholars, as reflected in the amicus brief my colleague Michael Devitt and I filed on behalf of a diverse group of law professors, and in the writings of other scholars on the issue.

Notably, Noel Canning did not have an overriding political valance.  While it was nominally a challenge to President Obama, George W. Bush made similarly dubious "recess" appointments while in office, as no doubt will the next Republican President.  Further, many of these Justices and scholars have been supportive of presidential power in other contexts; they are not driven by reflexive anti-executive sympathies.  In sum, in this case there is no reason to think that originalist arguments were made as cover to achieve political or policy preferences; rather, originalist-oriented scholars, judges and Justices were all simply trying to figure out what the Constitution's text meant.  And they were able to come to a strong consensus.

Of course that does not mean that originalists will come to a strong consensus in every case, or that originalism is the right approach for resolving constitutional questions.  It does show, I think, that originalism can provide some answers (if we want to use them).  To those who argue that originalism is inherently indeterminate or conceptually misconceived, the case is a strong rebuttal.  That the Court's non-originalist majority chose a different path does not show otherwise.

UPDATE:  SCOTUSblog has an excellent symposium on the case.  At least two of the posts take a somewhat different view from mine.  Brianne Gorod (A Victory for Text and History) argues:

Indeed, one of the most striking things about today’s opinions is the extent to which both Justice Breyer’s majority opinion and Justice Scalia’s dissent-like concurrence both tried to lay claim to the Constitution’s text and history.  ...  Although Justice Scalia attempted to suggest otherwise – he accused the majority of adopting an “adverse-possession theory of executive authority” and engaging in “judicial adventurism” – Justice Breyer’s opinion for the Court began and ended with the Framing.

More cautiously, Will Baude (What divides the Court, and what unites it) observes:

On the surface, the opinions appear to reflect an irreconcilable split in our current legal culture, and a victory for stability against constitutional textualism or originalism.

But I think, thankfully, that the appearance is illusory.  For all that the opinions disagree strongly about how to read the Clause and what its purpose was, they actually do agree — at least in theory — about the role of the text and its original meaning.  ...

[T]he majority *first* concludes that the text is “ambiguous,” looking to the text and structure of the Constitution and evidence of its original meaning.  It claims that its construction is permissible because “the Framers likely did intend the Clause to apply to a new circumstance that so clearly falls within its essential purposes, where doing so is consistent with the Clause’s language.” ...

Similarly, Justice Scalia agrees that when there is “an unclear text and clear practice,” the practice controls.  That is an agreement in principle with the majority.  To be sure, for those of us who have immersed ourselves in the text, history, and purpose of the clause, it may feel like the lower-order disagreement is far more important than the higher-order agreement.  But in the long run, from an interpretive point of view, the higher-order agreement is the one more likely to be remembered.

In a way, I'd like for these points to be true.  But I'm not persuaded.  In my view, the Justices in the majority ruled as they did because (a) they saw a long-standing and uncontested executive branch practice, and (b) they thought the President needs the ability to fill vacancies when the Senate is not available, regardless of whether the circumstances match those described in the Constitution's text.  True, the majority makes a gesture to the text and original meaning by "first" finding them ambiguous.  And the perceived need for that gesture in itself is a victory for text and original meaning.  But the majority opinion's argument for ambiguity is so thin (and candidly so) that I can't believe the Justices in the majority would have found ambiguity had they not been motivated by the considerations noted above.

But I still regard the case as a victory (of sorts) for originalism -- first because the majority did feel the need to claim to find ambiguity, and second because a substantial minority joined a rigorous textualist/originalist analysis.  To see how things have changed, consider Morrison v. Olson, from Justice Scalia's earliest days on the Court.  Morrison, the independent counsel case, was a somewhat similar clash between separation of powers formalism and functionalism.  But the majority there barely acknowledged the Constitution's text and original meaning on the central point of executive power, and Scalia dissented alone.


Oral Argument in the Amish Beard Cutting Appeal
Michael Ramsey

The Sixth Circuit hears oral argument today in U.S. v. Miller, the Amish beard-cutting case.  Jonathan Adler has this extended discussion: How the Justice Department is using the Commerce Clause to criminalize forcible beard cutting as a federal hate crime.  As he explains:

According to the Justice Department, the defendants crimes are subject to federal prosecution under the hate crimes statute because the shears and scissors used in the assaults had previously crossed state lines because they were manufactured in another state and because the defendants rode in cars to the scenes of the attacks.  ...

Pause for a minute and consider the implications of the government’s argument as upheld by the district court.  Under the Justice Department’s theory of jurisdiction, any time an individual rides in a car to or from the scene of a crime, that criminal act may be subject to federal prosecution, provided Congress has enacted a relevant statute.  Under the government’s theory once a potential weapon has “traveled in interstate commerce” ... any violent act for which it is used may become a federal crime, whether or not the criminalized conduct substantially has any genuine relationship to commerce (let alone the substantial relationship the Supreme Court’s decisions require) or whether the relevant statute regulates economic activity. ...

... In other words, the government’s theory of the case implies a nascent federal police power that follows any and all items that have, in the government’s words, “traveled in interstate commerce.”  This is a power without meaningful limits.

I previously wrote about this case here, here and  here.  As noted in the post at the last link, Michael Rosman and the Center for Individual Rights are representing Miller in the appeal.  Here is the government's response brief, and here is the defendant's reply.  (Thanks to Michael Rosman for the links).

The case is potentially a very big deal for federalism.  As the briefs make clear, the government really is claiming that Congress' commerce power allows it to regulate any use of any article that at any point traveled in interstate commerce, and (apparently, although this is a little less clear) any activity that invovles traveling by car.  As the defendant's reply begins:

In her opening brief ... Kathryn Miller pointed out that the Government’s theory of national power would lead to the conclusion that Congress could set speed limits through local towns and enact other local traffic regulations; pass laws on the use of bicycle helmets; criminalize local petty crimes in which some car, bicycle, bus, knapsack, purse, or other “device” capable of transporting someone or something over a state line (regardless of whether it ever had) was used; and regulate the use of any object that ever had crossed a state or national boundary and the conduct of any person that had ever crossed a state line in their lives. 

Remarkably, the Government disputes none of this. To the contrary. It argues for a national power just that broad, stating only that “there is a difference between the potential scope of Congress’s power and the exercise of that power.” Brief of the United States (“Govt. Br.”) 99-100. In short, the Government asks this Court to take comfort in, as Justice O’Connor famously put it, Congress’s “underdeveloped capacity for self-restraint.” Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 588 (1985) (O’Connor, J., dissenting).

Professor Adler suggests a the possibility of a narrow holding for the defense:

The Supreme Court’s recent opinion in Bond v. United States and the hate crimes act’s inclusion of a jurisdictional element [that the acts must "affect interstate commerce"] suggest another approach the Sixth Circuit could take.  In Bond, as here, the federal statute at issue applied to a wide range of conduct traditionally subject to control under state criminal law.  In addition, the criminal defendant’s specific conduct was not the sort that would normally justify federal action. As a consequence, not a single justice was willing to uphold the conviction. Yet rather than invalidate the statute, the majority read it narrowly.  As the Chief Justice explained:

Because our constitutional structure leaves local criminal activity primarily to the States, we have generally declined to read federal law as intruding on that responsibility, unless Congress has clearly indicated that the law should have such reach.

To endorse the government’s reading of the statute at issue would be to sacrifice principles of federalism and enumerated powers.

I agree, and I'd add that this approach would make Bond appear a more important holding that many commentators have suggested.

Randy Barnett: The Wages of Crying Judicial Restraint
Michael Ramsey

Randy Barnett (Georgetown University Law Center) has posted The Wages of Crying Judicial Restraint (Harvard Journal of Law and Public Policy, Vol. 36, pp. 925-933, 2013) on SSRN. Here is the abstract:    

Five Justices voted to affirm the proposition that the Constitution creates a government of limited and enumerated powers and that the courts will enforce those limits. To understand why this victory was possible, it is important to understand that there are not just two versions of federalism, pre‐New Deal and post‐New Deal. There is also a third version. The failure to recognize the third version goes a long way to explain why most of my academic colleagues predicted that the right would have no chance to prevail in our constitutional challenge to the individual insurance mandate.

The first version of federalism is the pre‐New Deal version. This version affirms that the Constitution established a national government of limited and enumerated powers, that those powers should be interpreted according to their original meaning, and that much of what the federal government tried to do before the New Deal, and did during the New Deal and after, is unconstitutional.

The post‐New Deal vision of federalism has been interpreted by progressives, quite beyond what the Court has actually said, as repudiating the idea that the Constitution enumerates certain limited congressional powers and that these limits are to be enforced by the courts. This progressive vision of the post‐ New Deal federalism essentially says that Congress has the plenary power to legislate as it will with respect to the national economy. Put another way, the Commerce and Necessary and Proper Clauses combine to create a “National Problems Power” vested in Congress.

Because most law professors held this vision of the New Deal, it came as quite a shock to them when the Rehnquist Court established the New Federalism. The New Federalism established the proposition that there were limits that were compelled by what Chief Justice Rehnquist referred to as “first principles” of constitutional government. That these limits would be enforced by the Court seemingly rejected and repudiated the progressive vision of the post‐New Deal constitutionalism that, up to that point, had seemed orthodoxy.


Lawrence Solum: The Positive Foundations of Formalism
Michael Ramsey

Lawrence B. Solum (Georgetown University Law Center) has posted The Positive Foundations of Formalism: False Necessity and American Legal Realism (Harvard Law Review, Vol. 127, No. 8, p. 2464, 2014) on SSRN. Here is the abstract: 

"The Positive Foundations of Formalism: False Necessity and American Legal Realism" explores the relationship between claims that judging is inherently political or ideological and contemporary studies of judicial behavior. These themes are developed in the context of a review of "The Behavior of Federal Judges" by Lee Epstein, William M. Landes, and Richard Posner. 

In this review, I begin in Part I with the book’s core, situating Behavior of Federal Judges’ empirical findings in the context of the evolution of the attitudinal model and the emergence of empirical studies of judicial behavior that emphasize the role of law as an important causal factor. Part II is about microfoundations. Behavior of Federal Judges offers a rational choice account theory of the causal mechanisms that determine judicial behavior in the form of a labor economics model — judges are viewed as agents of a diffuse principal whose preferences range over their income and the satisfactions obtained from the various ways in which they spend their time. 

In Part III, the review then takes a step back from the details of Behavior of Federal Judges’ empirical and theoretical account and engages the fundamental issues at stake — the questions raised by the debate between formalists and realists. Behavior presents itself as a purely positive account: “Ours is strictly a positive analysis. We do not ask how judges should decide cases but how they do decide them — more broadly, how they do their judicial work (which is not limited to casting votes in cases).” (pp. 5-6) Implicitly, Behavior assumes that the empirical findings and rational choice models show that judging is an inherently realist enterprise — not only does ideology partially determine judicial behavior, it does so necessarily. But this assumption is undermined by Behavior’s empirical findings. In fact, Epstein, Landes, and Posner provide strong evidence that that these claims (that judging must be political) involve false necessity. Putting this same point positively, Behavior provides evidence that legal formalism is possible — inside the feasible choice set and not mere “pie in the sky.”


Ben Cassady: Why the Disqualification Clause Doesn't (Always) Disqualify
Michael Ramsey

Ben Cassady (Yale Law School '13) has posted 'You've Got Your Crook, I've Got Mine': Why the Disqualification Clause Doesn't (Always) Disqualify (Quinnipiac Law Review, Vol. 32, No. 209, 2014) on SSRN. Here is the abstract:    

Alcee Hastings was impeached, convicted, and removed from the federal bench. He later ran for Congress, won, and was seated without controversy. But what if the Senate had instead imposed the ultimate political death sentence for a federal officer: "disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States"? Had Hastings been impeached, convicted, AND disqualified, would he still have been able to take his seat in the House? Should he have been able to do so?


This Article argues that, for reasons of history, structure, and institutional practice, the Disqualification Clause should not be read to apply to legislative seats. While an impeached, convicted, and disqualified President, department head, or judge may be disqualified from ever again serving in the executive or judicial branches, he cannot be barred from serving in the House or the Senate after his voters have knowingly pardoned him.

Update: Thomas Porteous, a former federal district court judge for the Eastern District of Louisiana, was impeached, convicted, and disqualified for corruption in 2010. He is only the third official (and the only living one) to be punished by disqualification, and thus the only potential beneficiary of this paper's arguments should he develop federal political aspirations. Page 216 (fns. 35-36), however, omit Porteous, and should read that the Senate has imposed this punishment three times (not twice.) Much thanks to Seth Barrett Tillman for pointing this out.

Thanks to Seth Barrett Tillman for the pointer.


Brian Slocum: The Ordinary Meaning of Rules
Michael Ramsey

Brian G. Slocum (University of the Pacific - McGeorge School of Law) has posted The Ordinary Meaning of Rules (Problems of Normativity, Rules and Rule-Following (Springer 2014)) on SSRN. Here is the abstract:

Judges typically claim that rules contained in legal texts are interpreted in accordance with their ordinary meaning. It follows that the constituent question of what makes some meaning the ordinary one and the evidential question of how the determinants of ordinary meaning are identified and conceptualized are of crucial importance to the interpretation of legal texts. While a comprehensive analysis of these questions is beyond the scope of this chapter, it is possible as well as important to outline how such questions must necessarily be approached. Certainly, there are a variety of ways in which courts habitually go beyond or reject the linguistic meaning of the relevant text. Normatively based desires to, for example, ensure fair notice or avoid constitutional questions may cause a court to give a text a legal meaning that does not correspond with its linguistic meaning. The ordinary meaning principle, though, is necessarily concerned with the linguistic meaning of the text and not normative matters. As such, certain views about meaning and interpretation can be rejected as being incorrect. In particular, certain claims made by actual intentionalists are fundamentally inconsistent with how the ordinary meaning doctrine must be conceptualized. In short, the intentionalist position that a text means what its author intended it to mean, as well as the associated claims about the nature of natural language that often accompany this assertion, must be rejected. Instead, the ordinary meaning doctrine must be explicated on the basis of systematicities and conventions of language.