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42 posts from February 2015


Alison LaCroix: The Interbellum Constitution
Michael Ramsey

In the current issue of the Stanford Law Review, Alison L. LaCroix: The Interbellum Constitution: Federalism in the Long Founding Moment (67 Stan. L. Rev. 397 (2015)).  Here is the abstract: 

Today, the mechanism of the spending power helps to drive the gears of the modern federal machine. But early nineteenth-century constitutional debates demonstrate that the spending power is essentially a work-around, and a recent one at that—a tool by which Congress achieves certain political and legal ends while respecting the formal boundaries set by Article I and the Tenth Amendment. The “interbellum” period between 1815 and 1861 was enormously significant for American constitutional law, in particular the constellation of related doctrines concerning congressional power that we now place under the general heading of “federalism”: the spending power, the enumerated powers of Article I, and the anticommandeering principle of the Tenth Amendment. Political and legal actors in the early nineteenth century believed they lived in a long Founding moment in which the fundamental terms of the federal-state relationship were still open to debate. Constitutional scholars have mistakenly overlooked the constitutional creativity of the period. As a normative matter, I argue for an approach to modern constitutional interpretation that recognizes the ever-changing nature of the landscape of constitutional permissibility, and that offers documentary evidence of the precise contours of that change. Studying the evolution of the spending power over time, especially where the text itself remains constant, demonstrates that ideas about federal structure are not fixed. Therefore, constitutional federalism itself is not fixed—a particularly important insight in an area of constitutional doctrine that is dominated by originalist approaches.


USD Originalism Conference Today and Tomorrow
Michael Ramsey

USD's 2015 Hugh and Hazel Darling Foundation Originalism Works-in-Progress conference takes place today and tomorrow.  Here is the line-up (which I think might be our best ever):

Friday, February 20, 2015:

2:30 – 2:35  Welcome:   Dean Stephen Ferruolo

2:35 – 2:45   Opening Remarks:  Mike Rappaport (USD)

2:45 – 4:00  First Paper:  Richard Ekins (Oxford), The Enacted Constitution.  Commentator: Fred Schauer (Virginia);  Moderator: Larry Alexander (USD)   

 4:00 – 4:15      Break

4:15 – 5:30      Second Paper: James Pfander (Northwestern), The Contested History of Article III's Case-or-Controversy Requirement.   Commentator: Caleb Nelson (Virginia);      Moderator:  Steve Smith (USD)

Saturday, February 21, 2015:

 9:30 – 10:45    Third Paper: William Baude (Chicago), Is Originalism Our Law?                     Commentator: Matt Adler (Duke); Moderator: Mila Sohoni (USD) 

 10:45 – 11:00  Break

11:00 – 12:15  Fourth Paper: James Ely (Vanderbilt), The Contract Clause: Origins and Early Development.  Commentator: Michael McConnell (Stanford);  Moderator: Maimon Schwarzschild (USD)

 12:15 – 1:15    Lunch 

 1:15 – 1:30      Break

1:30 – 2:45      Fifth Paper: Ian Bartrum (UNLV), Two Dogmas of Originalism.                      Commentator: Larry Solum (Georgetown); Moderator: Bryan Wildenthal (Thomas Jefferson)

2:45 – 3:00      Break

 3:00 – 4:15      Sixth Paper: Christina Mulligan (Brooklyn), Founding-Era Translations of the U.S. Constitution.  Commentator: Jack Balkin (Yale);  Moderator: Laurie Claus (USD)

 4:15 – 4:30      Break

 4:30 – 5:45      Seventh Paper: David Moore (BYU), The Broader Founding and International Law.  Commentator: David Golove (NYU).  Moderator: Mike Ramsey (USD) 


Incorporation, Total Incorporation, and Nothing But Incorporation: The Essay
Chris Green

I have combined into an essay my posts responding to Kurt Lash's excellent book adopting an enumerated-rights-only reading of the Privileges or Immunities Clause.  The new version--with many fewer abbreviations!--is here. Please send me any comments you might have!

Update: The essay is now forthcoming in the William and Mary Bill of Rights Journal.

Leo Strine Jr. & Nicholas Walter: Originalist or Original
Michael Ramsey

Leo Strine Jr. (Government of the State of Delaware - Supreme Court of Delaware; Harvard Law School; University of Pennsylvania Law School) and Nicholas Walter (Wachtell, Lipton, Rosen & Katz) have posted Originalist or Original: The Difficulties of Reconciling Citizens United with Corporate Law History on SSRN. Here is the abstract:

Citizens United has been the subject of a great deal of commentary, but one important aspect of the decision that has not been explored in detail is the historical basis for Justice Scalia’s claims in his concurring opinion that the majority holding is consistent with originalism. In this article, we engage in a deep inquiry into the historical understanding of the rights of the business corporation as of 1791 and 1868 — two periods relevant to an originalist analysis of the First Amendment. Based on the historical record, Citizens United is far more original than originalist, and if the decision is to be justified, it has to be on jurisprudential grounds originalists traditionally disclaim as illegitimate.

Damon Root on Rand Paul and Judicial Restraint
Michael Ramsey

At Reason, Damon Root: Rand Paul and the Libertarian Case Against Judicial Restraint: Sen. Paul takes sides in a libertarian-conservative battle over SCOTUS and the Constitution (also covering some of the debates among Richard Reinsch, Greg Weiner and Randy Barnett previously noted).


Josh Blackman and Ilya Somin on Executive Enforcement Discretion (Updated)
Michael Ramsey

Josh Blackman and Ilya Somin have competing views of the district court decision in Texas v. United States enjoining the President's non-enforcement of the immigration laws.

Up to a point, I agree with Professor Somin:

[T]he [immigration nonenforcement] policy is little different than numerous other situations where the executive branch chooses not to enforce a variety of federal laws in particular situations, such as the de facto policy of not enforcing federal laws banning marijuana possession on college campuses. The latter actually affects a far larger number of lawbreakers than Obama’s new immigration policy does. Some 70% of Americans have violated federal criminal law and millions have also violated various federal regulations that carry civil penalties. Every administration chooses to pursue only a small fraction of these cases, and in the process effectively exempts large categories of offenders from any legal sanction.

But I am less sure about these observations: 

[The district court] claims that the administration’s new [immigration nonenforcement] policy creates “a standard of conduct” that “has the force of law” and is “clearly contrary to Congress’ intent.” He claims that “[t]he DHS cannot reasonably claim that under a general delegation to establish enforcement policies, it can establish a blanket policy of nonenforcement that awards legal presence and benefits to otherwise removable aliens.” In his view, the administration’s policy is “in effect, a new law.”

... [T]his reasoning fails because the administration’s decision does not actually have “the force of law” or legalize the status of previously illegal immigrants. While the administration has committed to a policy of not deporting those aliens who fall within the scope of the policy, it has not declared their presence in the US to be legal, nor given them any “benefits” that have the force of law (the benefits in question are primarily exemption from enforcement of federal laws banning the employment of illegal aliens). Both the acceptance of their presence in the US and the work permits can be withdrawn by President Obama or his successors at any time. By contrast, the executive cannot and does not have the power to revoke legal status that genuinely has the force of law, except perhaps in cases where Congress has specifically delegated the power to do so.

As the district court opinion puts it, in a passage I predict will be widely quoted:

Exercising prosecutorial discretion and/or refusing to enforce a statute does not also entail bestowing benefits.  Non-enforcement is just that -- not enforcing the law.  Non-enforcement does not entail refusing to remove these individuals as required by law and then providing three years of immunity from that law, legal presence status, plus any benefits that may accompany legal presence under current regulations.

Although I'm not an expert in this area, the district court's characterization of the policy seems more accurate here.  Unlike marijuana nonenforcement (on which I entirely agree with Professor Somin), the immigration nonenforcment does appear to me to convey affirmative benefits.  It allows covered persons the ability to work (which they would not otherwise have) and (at least under the executive branch's view of the matter) requires states to treat the covered persons as legally entitled to remain in and work in the United States on the same terms as legal immigrants.  It's true that these benefits can be withdrawn by executive order, but until they are, they are binding.  (Query: could an employer refuse to hire a person covered by the President's non-enforcement policy on the ground that the person is in the U.S. illegally?  My impression is that the answer is "no," because by the President's policy they are entitled to work in the U.S.  If that's correct, the policy goes beyond mere non-enforcement).

That's not to say that the executive action here is unconstitutional -- only that it has to be authorized by statute rather than resting just on prosecutorial discretion (which, as the district court says, is only non-action).

For more, see these articles by Professor Blackman: The Constitutionality of DAPA Part I: Congressional Acquiescence to Deferred Action and The Constitutionality of DAPA Part II: Faithfully Executing the Law.

UPDATE:  Josh Blackman has more here at NRO, plus also at NRO this from Andrew McCarthy.

Eric Posner has a different view here, which further confirms what is becoming the main point of disagreement: does the immigration non-enforcement order convey legal benefits?  Professor Posner says it does not.  But then he sort of acknowledges that it does, because it would [might?] preempt state law.  If the order changes (improves) people's legal status under state law, surely that conveys a legal benefit?


Michael Stokes Paulsen: The Commander in Chief Power to Target and Kill Americans
Michael Ramsey

Michael Stokes Paulsen (University of St. Thomas School of Law) has posted Drone on: The Commander in Chief Power to Target and Kill Americans (38 Harvard Journal of Law and Public Policy 43 (2015)) on SSRN. Here is the abstract: 

The President of the United States, in his capacity as Commander in Chief in time of legally authorized war, possesses the constitutional power to target and kill specific individuals that he determines to be active enemy combatants engaged in lawful or unlawful hostilities against the United States. In targeting and killings such combatants, the President may use any and all appropriate weapons technologies available to him -- including drone technology.

Such enemy combatants might sometimes be, unfortunately, United States citizens. The constitutional power of the President to target and kill such citizen enemy combatants is no different from the power to target and kill enemy combatants generally.

This article examines this core proposition in the context of the paradigmatic case of the targeted killing of Anwar al-Awlaki, a U.S. citizen and al Qaeda operational commander, by drone attack in Yemen in 2011.


Greg Weiner vs. Randy Barnett on Natural Rights Adjudication
Michael Ramsey

At Liberty Law Blog, Greg Weiner: Who Are the Guardians of the Natural Rights Polity?  From the introduction:

There is no reason there cannot be a natural rights politics as opposed to a natural rights jurisprudence.

Rights are not inherently judicial claims. We are only accustomed to thinking of them that way. Consider that the Supreme Court was almost wholly silent on the Bill of Rights for much of its first century even though early political commentary (see the debates over the Sedition Act) is rife with references to it.

It might be healthier and, crucially, ultimately better for liberty if rights claims were to be politically resolved. There is substantial evidence that this is what prominent Framers, including Madison, had in mind.

Randy Barnett responds: The majoritarian fable.  From the core of the argument:

So tell me a story about how an individual denied the right to braid hair without an expensive and time consuming cosmetology licence can get her right vindicated in “the legislative process.” Tell me how some monks can get their right to sell a wooden box in which to bury the dead without being licensed funeral home directors can get their rights decided by “the rest of us.”

I don’t want proof or a report of an actual case. I just want Mr. Weiner to tell me a story about how it can possibly happen. What does this African American woman do who wants to braid hair for money? How does her right become part of the agenda of the state Republican and Democratic parties and their candidates for the state representatives or senators? How does she make “the rest of us” aware of her liberty being violated so they can vote Republican or Democrat accordingly? How does she get the public to place a greater weight on her lone right to pursue a harmless occupation than they do on the other policies advocated by Republicans or Democrats? When will “deliberate majorities” ever even hear her claim?

“The rest of us” were never asked our opinion about hair braiding or casket sales. Majorities in the state legislature never voted on the regulation beyond delegating their lawmaking power to administrative agencies or professional boards.


I know of only one way for an individual to assert her claims against administrative government workers and boards and panels. By bringing a lawsuit that is then decided by a genuinely neutral magistrate. Bringing suit is hard. Bringing suit is expensive (unless supported by a public interest attorney). But bringing suit is possible. It is only possible, however, in a legal system that recognizes the existence of a third co-equal branch of government called the “judiciary.” In a system that acknowledges that the “due process of law” includes the ability to get an independent magistrate to pass upon the reasonableness of a legislative or regulatory restriction of liberty so that it is within the “just power” of republican government.

This is why we need courts, why we need judges, and why we need lawyers.


Calvin TerBeek: Originalism's Obituary
Michael Ramsey

At his Balls and Strikes blog, Calvin TerBeek writes Originalism's Obituary.  From the introduction:

Originalism is facing an existential crisis.  Some of its leading proponents might not know it — might not want to admit it — but viewed from the outside it seems clear that the edifice of originalism, old and new, is crumbling.  To use Thomas Kuhn’s The Structure of Scientific Revolutions as a helpful analytical jumping-off point: the new methods of thinking about constitutional interpretation (i.e., original public meaning) were developed because the old methods (e.g., original intentions) were not up to the task of solving the “dilemma” of interpretation (neutral and objective criteria for judging), but instead have now thrown the “state of knowledge” (about the “best” theory of constitutional interpretation) into flux or crisis as views once deemed heretical or unforeseen (progressive results flowing from an originalist approach) have opened the field.  However, unlike Kuhn’s model for scientific knowledge, there will be no new originalist paradigm that emerges from this crisis.  That is, no one version of originalism will triumph to return the state of knowledge back to “normal” (originalist) theorizing. The originalist project has finally collapsed in on itself.

(One might see Kurt Lash's essay at Liberty Law Blog, noted yesterday, as something of a response).


Kurt Lash: Safe Harbor Originalism
Michael Ramsey

At Liberty Law Blog, Kurt Lash: Safe Harbor Originalism.  From the introduction:

Originalism’s success has resulted in a rapidly expanding body of scholarship by a richly diverse group of constitutional theorists, many of whom “tweak” the method in order to bring it within their preferred normative theory. This is the cost of success—everyone wants to play.

There are many ways to be an “originalist.” However, not all ways are originalist, and even those that are arguably originalist will not be equally accepted by practitioners of the method. If originalism is to maintain a degree of coherence as an interpretive option, its advocates are now pressed to define it, and to do so in a manner that distinguishes the method from its rivals while still leaving room for healthy exploration, disagreement, and development.

Thanks to the work of Professor Lawrence Solum, we have an easily understood, robustly theorized, and broadly accepted definition. Originalism claims that 1) the meaning of a text is fixed at the time of its adoption and 2) this constrains judicial application of the text. There may be other ways to define originalism, but any work that accepts Solum’s definition will be accepted as “originalist” by most academics, lawyers, and judges.

How does one go about determining the textual meaning that was fixed at the time of adoption? Once again, different scholars have adopted different methods. What follows is an originalist methodology that I believe all originalists accept as a properly originalist methodology. It has four basic steps, and to fall within the safe harbor, all four must be completed, and completed in order.

I agree with the first three, anyway.