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41 posts from January 2015


Josh Blackman on the Rules Enabling Act and the Non-Delegation Doctrine
Michael Ramsey

At Josh Blackman's Blog, Josh Blackman asks: Does the Rules Enabling Act Violate the Non-Delegation Doctrine? Here is an excerpt: 

The Non-Delegation doctrine is aimed at preventing one branch (Congress) from delegating the legislative power to another branch (President). But what about the Judicial branch? We know from Article II, Section II that Congress can “vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law.” So the Constitution envisaged some delegation, with Congress’s permission, of the power to appoint inferior officers. What about Congress delegating the legislative power to the courts?

Under the 1934 Rules Enabling Act (now codified at 28 U.S.C 2072), the Supreme Court “shall have the power to prescribe general rules of practice.” The statute stresses that “Such rules shall not abridge, enlarge or modify any substantive right.” After the Court proposes the rules, Congress can “enact[] legislation to reject, modify, or defer the pending rules,” but if it fails to do so, the rules go into effect. For all intents and purposes, the rules of procedure have the binding effect of law, even if they are not so labeled.


Jennifer Anglim Kreder: The 'Public Trust'
Michael Ramsey

Jennifer Anglim Kreder (Northern Kentucky University - Salmon P. Chase College of Law) has posted The 'Public Trust' on SSRN. Here is the abstract:

It seems as if no one really knows the meaning of the term “public Trust” used in the Religious Test Clause of Article VI of the U.S. Constitution. This Article is the first scholarly attempt to define the term by exploring historical evidence pre-dating the nation’s founding through the Constitution’s adoption, including British and colonial trust law that influenced the Founders’ conception of the term. Today, one can find the term used only in the cases and scholarship concerning environmental law, tax law and museum law. After a thorough analysis of the old and new sources, this Article proposes the following original definition of term “public Trust”: “Any entity given special privilege by the government, beyond the simple grant of a state corporate charter often coupled with state or federal tax waivers, so long as that entity is legally obligated to engage in conduct that could traditionally have been performed by the government itself for the public’s benefit.”

Thanks to Seth Barrett Tillman for the pointer.

Ed Whelan on Originalism and Same Sex Marriage
Michael Ramsey

At NRO, Ed Whelan responds to William Eskridge on the merits of the same-sex marriage argument: Originalism and Marriage.  He begins: "I think that Eskridge’s claim is wildly implausible, indeed preposterous."


Even More on Netanyahu's Address to Congress
Michael Ramsey

Ryan Scoville has these thoughts at Just Security: Boehner Invites Bibi: A Closer Look at Historical Practice.  From the introduction:

[In regard to] questions of original meaning and custom ... I think the blogosphere has been too summary in its judgment. Ramsey emphasizes that influential members of the Washington Administration viewed the executive as a constitutionally required intermediary for official communication between Congress and foreign governments. Spiro suggests that there is no supporting practice from the Founding Era. And Bernstein states, albeit somewhat tentatively, that “direct diplomatic relations with foreign governments are exclusive in the executive.” In my view, this commentary overlooks a lot of important precedent and, in the case of Ramsey, focuses too much on the views of the Washington Administration and too little on contemporaneous understandings of the First Congress. 

Professor Scoville is the author of the outstanding article Legislative Diplomacy (Michigan Law Review 2013).

Also, Peter Spiro (who started all this!) has additional thoughts at Opinio Juris: More on Boehner’s Netanyahu Invite (and What It Says About Constitutional Change).  Although in theory I don't disagree with him as a descriptive matter, and perhaps not even as a normative matter, that practice can create precedents beyond the original meaning, I think he reads a bit much into this particular incident.  Whether the address ultimately goes forward or not, I don't think it will be regarded as a happy precedent.

Orin Kerr and Larry Solum on Originalism and Same-Sex Marriage (UPDATE: And Lots More from Ilya Somin)
Michael Ramsey

At Volokh Conspiracy, Orin Kerr asks: Is there an originalist case for a right to same-sex marriage?  His post reviews arguments by Steven Calabresi, Ilya Somin, William Eskridge and me, and continues: 

These are important arguments, but here’s where I am stuck: I don’t yet see how these are distinctly originalist arguments. My primary problem is at ... the articulation of the broad principle. I am not an originalist theoretician, so maybe I am missing something. But I would think that for these arguments to be considered distinctly originalist arguments, at a minimum, the process by which we identify the broad principle that the Fourteenth Amendment adopts has to be based on specific constitutional text as it was understood by the public at the time of its enactment. From what I can tell, the originalist arguments made so far haven’t really done that. As a result, I’m not sure there is anything distinctly originalist about these claims.

Larry Solum responds at Legal Theory Blog:  What Should Count as an Originalist Case for a Right to Same Sex Marriage (a long and insightful post that defies any easy summary).

My brief response to Professor Kerr's challenge is this: I agree with his standard, that "for these arguments to be considered distinctly originalist arguments, at a minimum, the process by which we identify the broad principle that the Fourteenth Amendment adopts has to be based on specific constitutional text as it was understood by the public at the time of its enactment."  I think my (tentative) argument meets that standard.

For me, the specific constitutional text is the equal protection clause, which (I assume) has an original meaning that imposes some sort of equal treatment requirement.  (This is controversial among originalists and I'm not trying to defend it here; I am only assuming it to get to the hard part).  But, still agreeing with Professor Kerr, an originalist needs to show, not just that some idea of equal treatment establishes a right to same-sex marriage, but that the public meaning of equal treatment at the time establishes a right to same-sex marriage.  

In the next step I would ask what principle did the public meaning at the time establish.  I say that it is something like an anti-caste provision.  The paradigm case of equal treatment was for Blacks to be treated equally with Whites.  But the clause does not say just that, so it should be read to mean that sort of discrimination or anything like it (else they would have used specific rather than general language).  So, for example, discrimination against Chinese laundries is also covered, as in Yick Wo v. Hopkins, even if no one at the time of enactment was thinking about Chinese laundries.

So far, I think the argument is comfortably originalist, and I doubt Professor Kerr would disagree. The trick is in the next step.  It's clear that at the time no one would have thought the rule established by the equal protection clause meant there was a right to same-sex marriage, had they considered it.  Is is possible they were mistaken?

My argument is that they might have been.  Unlike some originalists, I think it is very hard to make an argument for applying a rule in a way that is expressly contrary to the common expectation of how it would be applied at the time of enactment.  But hard is not impossible.  In this case, it's possible to say that we now understand discrimination on the basis of sexual orientation in a different way than they did, and, in particular, we understand it in a way that might make it resemble discrimination on the basis of race. And if  that's the case, then I think we can say that the discrimination is unconstitutional under the same originalist rule that makes race discrimination unconstitutional.  It is (as Ilya Somin says) just a case of applying the old rule to a new circumstance, except that the circumstance is "new" not because of a change in technology but because of a change in the way we understand the relevant facts.

To be clear, there are a number of highly contestable steps in the argument, but my view is that if you accept the steps you have made an originalist argument.

UPDATE:  Ilya Somin has extensive further comments (which I read after writing the above): Originalism is broad enough to include arguments for a constitutional right to same-sex marriage.  I think we are in broad agreement.

FURTHER UPDATE:  Orin Kerr and Ilya Somin continue the conversation: More on originalism and same-sex marriage (Kerr) and Originalism and same-sex marriage revisited – a further rejoinder to Orin Kerr (Somin).


David Sloss: Bond v. United States: Choosing the Lesser of Two Evils
Michael Ramsey

David Sloss (Santa Clara University - School of Law) has posted Bond v. United States: Choosing the Lesser of Two Evils (Notre Dame Law Review, Forthcoming) on SSRN. Here is the abstract: 

In Bond v. United States, Carol Anne Bond used toxic chemicals in an attempt to poison her husband’s lover. The federal government prosecuted Bond for violating the Chemical Weapons Convention Implementation Act of 1998 (the “CWC Act”). Congress enacted the CWC Act to implement U.S. obligations under the Chemical Weapons Convention (CWC), a multilateral treaty signed in 1993 that is designed to address the global threat posed by chemical weapons. Bond challenged the constitutional validity of the federal statute and urged the Court to overrule Missouri v Holland, a 1920 case holding that the combination of the Treaty Power and the Necessary and Proper Clause empowers Congress to enact treaty-implementing legislation that would exceed the scope of Congress’ Article I powers in the absence of a treaty. Chief Justice Roberts, writing for the majority, avoided the constitutional question by adopting a narrow construction of the statute. Justice Scalia, writing for himself and Justice Thomas, would have overruled Holland and invalidated the CWC Act.

This essay makes two main points. First, the majority’s interpretation of the CWC Act is inconsistent with the statute and the underlying treaty. Indeed, the majority opinion displays a basic misunderstanding about the design of the underlying treaty. Second, Justice Scalia’s construction of the Necessary and Proper Clause is antithetical to the structure and original understanding of the Constitution. If adopted as law, Justice Scalia’s view would seriously harm the federal government’s ability to conduct foreign affairs on behalf of the nation. Since Justice Scalia’s constitutional error would be far more damaging than the majority’s statutory error, the majority’s statutory misinterpretation is the lesser of two evils.

Another paper for the Notre Dame Law Review's outstanding symposium on Bond.


Ilya Somin on William Eskridge on Originalism and Same-Sex Marriage
Michael Ramsey

At Volokh Conspiracy, Ilya Somin: William Eskridge on originalism and same-sex marriage (discussing the post noted here). Professor Somin offers this alternative originalist approach:

Overall, I continue to believe that the better originalist argument for striking down laws forbidding same-sex marriage is that such laws amount to unconstituitonal sex discrimination. Unlike in the case of gays and lesbians, most informed observers in the 19th century clearly recognized that women are a distinct class, and that laws discriminating against could be challenged under Fourteenth Amendment. Most of them nonetheless believed that all or nearly all sex-discriminatory laws of that era were constitutional. But that conclusion was premised on factual understandings about women’s capabilities that have been superseded by later evidence. Similarly, nineteenth century (and later) support for laws restricting marriage on the basis of gender were also premised on factual assumptions that later evidence proves largely false. As nearly all originalists recognize, that methodology is entirely consistent with updating the application of its fixed principles in light of new factual information. Indeed, such updating is often not only permitted, but actually required by the theory. Otherwise, it will often be impossible to enforce the original meaning under conditions different from those envisioned by the generation that framed and ratified the relevant provision of the Constitution.

Ramsey and Tillman on the Receive Ambassadors Clause
Mike Rappaport

Mike Ramsey and Seth Barrett Tillman have been debating whether House Speaker John Boehner’s invitation to Israel's Prime Minister Netanyahu to speak to Congress is unconstitutional.  See also the posts by David Bernstein and Peter Spiro.    

Here I do not want to take a position on the issue, but just to note some interpretive moves that Mike and Seth make concerning the Receive Ambassadors Clause, which provides that the President “shall receive Ambassadors and other public Ministers.” 

Seth argues for a strict reading of ambassador and public minister.  He argues that Netanyahu is neither an ambassador or public minister.  An ambassador has a meaning that excludes heads of government and other public ministers extends only to “diplomatic officials having lesser status or rank than ‘Ambassadors.’”  He supports this reading of other public ministers with various other clauses that seem to suggest this reading of other public Ministers.  See Article 2, Section 2, Clause 2 (referring to “Ambassadors, other public Ministers and Consuls” as under the scope of the President’s appointment power).  See also Article 3, Section 2, Clauses 1 and 2 (similar as to judicial power).  As a reading of the language, Seth’s argument here is quite plausible.

Mike contends for a broader reading of “other public minister.”  To support this, he writes that “the alternative would be a strange result: that the President would receive the Israeli ambassador, but not Israel's head of government.”  What type of argument is this strange result claim?  One might interpret it as a purpose argument – the purpose of the Clause is to have the President receive representatives of foreign governments and the head of the government is the chief representative. 

Is this a legitimate use of a purpose argument for a textualist?  In my view, so long as one reads “other public minister” as ambiguous – as having this as one of its meanings – then it is legitimate.  Even if Seth’s proposed meaning is the stronger reading of the language (without reference to the purpose), this purpose argument might shift the result toward’s Mike’s reading so long as one concludes this purpose argument is sufficiently strong. 

Is this language ambiguous?  One can imagine Seth denying it is.  The language sets forth ambassadors and then includes “other public ministers” as similar but lesser officials.  But Mike might reply that the reason ambassador is singled out is because it was the most common representative, not that it was the highest representative. 

(Cross Posted at the Liberty Law Blog)     

Adam White and Josh Blackman on Netanyahu's Proposed Address to Congress
Michael Ramsey

Adam White has this thoughtful post at The Weekly Standard: The Constitution Doesn't Let President Close Congress's Doors to Israel (disagreeing with my view).  [He calls me "a significant voice[ ] in the conservative legal movement," which I doubt is true, but thanks!]

Among other points, the post asks: "Would Professor Ramsey prohibit Republican presidential candidates, including members of Congress, from traveling abroad to meet with foreign audiences and leaders, as President Obama did in 2008...?"  My answer is: that's another matter.  First, it's not a problem if the President doesn't object (and in most instances I doubt there was any objection). Second, it is much less textually problematic: it doesn't violate the reception clause, because the foreign representative isn't being formally received; and it doesn't raise the issue of Congress' power because it isn't an act of Congress.  Third, a very different message is sent when an individual member meets privately with a foreign representative, as compared when a foreign leader is invited to make a formal speech to all of Congress; the individual communication is much less likely to undercut the President's role as diplomatic mouthpiece of the nation.  So I don't think my view on addressing Congress commits me to a view on communications by individual members.  That said, I do think it a little troublesome when individual members meet with foreign leaders against the President's wishes for the specific purpose of communicating a message contrary to the President's views.

Meanwhile, Josh Blackman has this take on the matter at his blog: Gridlock and Congressional Power (in a nutshell, saying that gridlock doesn't authorize congressional overstepping any more than it authorizes presidential overstepping, which sounds right to me).


A Response on Netanyahu's Address to Congress
Seth Barrett Tillman

I think the question posed – Is Netanyahu’s addressing Congress constitutional? – is closer than Professor Bernstein’s and Professor Ramsey's posts suggest. I see this question as a competition between two implied powers (albeit, perhaps, each power is beyond the scope of the Necessary & Proper Clause). But Professor Ramsey suggests that the President can rely on an enumerated power.
Article II, Section 3, provides that “he [the President] shall receive Ambassadors and other public Ministers.” In this situation, Prime Minister Netanyahu, appearing as the official representative of his country, should be classed as a “public Minister.”
I don’t think that is right. “Public minister” in everyday modern American-English might extend to all foreign government officials. However, as I understand it, back in 1788-1789, the language “other public Ministers” extended to diplomatic officials having lesser status or rank than “Ambassadors”. That is (I suspect) the reason “public Minister” follows “Ambassadors” in Article II, Section 3. There are further diplomatic officials having even lower status than “public Ministers”; they are called “consuls”. See Article 2, Section 2, Clause 2 (referring to “Ambassadors, other public Ministers and Consuls” as under the scope of the President’s appointment power); Article 3, Section 2, Clause 1 (extending the judicial power to “Ambassadors, other public Ministers and Consuls”); Article 3, Section 2, Clause 2 (same). Foreign legislative leaders and foreign heads of government do not squarely fall under the “public Minister” rubric. Moreover, a legislative leader who is not a minister (a/k/a cabinet member), who does not control a ministry (a/k/a an American agency) is not a “public Minister” at all.
As an abstract matter, the answer to the original query should be resolved as a competition between two sets of implied powers: on the one hand, the President’s power to act as the sole channel of official communications between the national government and foreign powers, and, on the other hand, Congress’ power to inform itself and to maintain exclusive control over access to its physical facilities. Framed this way, the question is reasonably close. But there is an easy way to resolve the dispute. The President and his officials control the borders; that is, the President can physically exclude foreigners from entering the United States, particularly where such foreigners intend to assist (purported) violations of the President’s implied constitutional powers. If the President refuses to exclude, where self-help is in easy reach, that is implied consent. And Congress should prevail on these facts.
To put it another way, certain undocumented aliens / illegal immigrants are in the United States in contravention to express statutory provisions. But the President does not have to enforce each such statutory provision against any one such person. If the President exercises his discretion not to enforce the power to arrest, try, and exclude such a person, the President could even (theoretically) take such a person on a tour of the White House or make that person his personal guest at a State of the Union address (as insane as that might sound). Congress might exclude such a person from its physical premises, but if it does not do so, that is implied consent by Congress to the person’s presence during the President’s annual address. Just so – if the President’s border control officials admit Netanyahu at a time it is publicly known Netanyahu intends to speak to Congress, such admission by the President constitutes implied consent to Netanyahu’s addressing Congress.