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43 posts from July 2015


Amanda Tyler: Habeas Corpus and the American Revolution
Michael Ramsey

Amanda L. Tyler (University of California, Berkeley - School of Law) has posted Habeas Corpus and the American Revolution (California Law Review, Vol. 103, No. 3, 2015) on SSRN.  Here is the abstract:      

Modern debates concerning the protections afforded by the Suspension Clause of the U.S. Constitution have taken place within the Supreme Court’s chosen methodological approach in this context, which openly calls for careful attention to the historical backdrop against which the Clause was drafted. This approach is hardly surprising given that long ago Chief Justice John Marshall declared that when the Founding generation constitutionalized “this great writ,” they invoked “[t]he term...in the [C]onstitution, as one which was well understood.” No matter how well the Founding generation understood the content, reach, and application of the “privilege of the writ of habeas corpus,” however, significant portions of the relevant historical backdrop to the ratification of the Suspension Clause remain lost to the annals of history. In particular, the details surrounding one of the most consequential periods in the history leading up to the adoption of the Suspension Clause — namely, the treatment and legal classification of the American colonists by the British during the American Revolutionary War — remain largely unexplored in legal scholarship. 

Professor Tyler seeks to recover and tell this story here by drawing upon a wealth of sources, including: archival documents, parliamentary debates, contemporary press accounts, colonial papers, diaries and private papers of key participants, and significant decisions and rulings of the British courts. As these materials reveal, determinations regarding the reach and application of the English Habeas Corpus Act of 1679, rather than solely the common law writ of habeas corpus, were of tremendous consequence during this important period in Anglo-American legal history. Where the Act was in force and where prisoners could claim its protections, the legal framework demanded that such persons be charged criminally and tried in due course or otherwise be discharged. Significantly, the privilege associated with the English Act did not speak merely to process; it further imposed significant substantive constraints on what causes would be deemed legal justification for detention in the first instance. The important role that the Act played in the Revolutionary War legal framework, moreover, suggests that modern jurisprudence has underappreciated the Act’s enormous influence upon the development of habeas law in the Anglo-American tradition. Finally, the history recovered here demonstrates more generally that during the Revolutionary War, suspension, geography, and allegiance each played significant roles in determining the availability of the privilege of the writ of habeas corpus to those who would claim its protections.

(Via Larry Solum at Legal Theory Blog, who says "Highly Recommended").


Brian Lipshutz: Justice Thomas and the Originalist Turn in Administrative Law
Michael Ramsey

Brian Lipshutz (Yale Law School, JD '15) has posted Justice Thomas and the Originalist Turn in Administrative Law (Yale Law Journal Forum, 2015) on SSRN.  Here is the abstract:

Until recently, it seemed that administrative law was beyond the reach of originalism at the Supreme Court. But this past term, Justice Thomas wrote six concurring and dissenting opinions amounting to a systematic originalist critique of administrative law. 

In these cases–AAR, Perez, B&B Hardware, Wellness International, Texas Department of Housing, and Michigan v. EPA – Justice Thomas re-examined non-delegation, judicial deference, and agency adjudication of private rights. This Essay highlights that these opinions are the first sustained originalist analysis of administrative law by a Justice. It also identifies the ways in which the opinions connect to each other, to scholarship, to previous opinions, and to possible future opinions.


New Book: "A Less Perfect Union: The Case for States' Rights" by Adam Freedman (with a Review by Michael Greve)
Michael Ramsey

Adam Freedman's book A Less Perfect Union: The Case for States' Rights (Broadside Books 2015) is now published.  Here is the book description from Amazon: 

The Constitution's stated purpose is to create "a more perfect union." but what if our union has become too perfect? what if our national government has become too powerful? what if our states are losing the very rights and freedoms that made our country what it is?

"States' rights" has become a dirty phrase in American politics. Over the past few decades, especially since the civil rights movement, liberals have been amazingly successful in painting states' rights as a smoke screen for racist repression. It is a convenient way to demonize small government conservatives and tar them with the brush of segregation.

Yet as Adam Freedman reveals in this surprising and essential book, states' rights has been an honorable tradition—a necessary component of constitutional government and a protector of American freedoms since the birth of our nation. In fact, states' rights has historically been the rallying cry for just about every cause progressives hold dear: the abolition of slavery, union rights, workplace safety, social welfare entitlements, and opposition to war.

In A Less Perfect Union, Adam Freedman provides an illuminating history of states' rights, from the Constitutional Convention through the Civil War and the New Deal to today. He reveals how hard the Founders fought to keep power in the hands of the states, the surprising role of states' rights as a weapon against slavery, and the federal government's eventual abandonment of all constitutional limitations on the scope of its power. Surveying the latest developments in Congress and the state capitals, he finds a growing sympathy for states' rights on both sides of the aisle, as the federal government usurps more and more control.

But Freedman goes further, boldly arguing that a return to states' rights is the only way to check the tyranny of federal overreach, take power out of the hands of the special interests and crony capitalists in Washington, and realize the Founders' vision of freedom. With concrete policy proposals, A Less Perfect Union lays out an achievable vision of a nation in which states are free to address the health, safety, and economic well-being of their citizens without federal coercion and crippling red tape.

As states' rights issues continue to drive the national conversation as we approach 2016 and beyond, A Less Perfect Union is essential reading for anyone frustrated by the federal government's daily infringement of the quintessentially American right of local self-government.

Via Michael Greve at Liberty Law Blog (with a pointer to his [generally favorable] review in the Wall Street Journal).


Two Reasons the Iran Deal Is Unconstitutional
Michael Ramsey

In the Wall Street Journal, David Rivkin and Lee Casey argue that "The Iranian nuclear agreement announced on July 14 is unconstitutional, violates international law and features commitments that President Obama could not lawfully make."  (Via Elizabeth Price Foley at Instapundit, who has further quotes and  favorable comments).  Jack Goldsmith responds at Lawfare: More Weak Arguments For The Illegality of the Iran Deal.

I agree with most of Professor Goldsmith’s comments, including: (a) I think objections to the UN Security Council resolution are misplaced, as it appears to the bind the U.S. to future action regarding U.S. sanctions [at least that’s what John Bellinger says, and I would not want to argue with him], and (b) I see no constitutional objection to the President telling Iran that he will take certain actions that are within his constitutional and statutory powers [as Goldsmith has argued previously].

But I still think the Iran deal is constitutionally problematic, for two reasons (neither of which Professor Goldsmith addresses):

1.  The deal’s constitutionality appears to depend on it being non-binding.  A number of commentators have assumed that it is.  But it appears ambiguous  at best on this point.  It’s true that the text (introduction to Article I) declares that “Iran and E3/EU+3 will take the following voluntary measures...”  But standing alone that language seems unclear – does it mean that the parties need not take the measures unless they voluntarily want to in the future, or that the parties are voluntarily (i.e., without coercion) entering into the agreement?  On a quick read, nothing else in the agreement refers to it as non-binding, and many of its measures are described in obligatory terms.  (For example, Section 26, the U.S. “will refrain” from re-imposing sanctions once sanctions are lifted.)  Although the U.S. negotiators previously referred to the pending deal as nonbinding, Iran insisted in response that it was intended to be binding (this was in March/April of this year).  I’m not aware that the U.S. has recently and unequivocally described the deal as nonbinding (and even if it did, it’s not clear that the unilateral view of the U.S. negotiators would be conclusive).

In my view, the President has a constitutional obligation to make clear, to both the other parties to the agreement and to Congress, that the agreement is nonbinding.  For reasons set forth here, the President does not have independent constitutional power to make a binding agreement in these circumstances.  But if the U.S. is not clear that the agreement is nonbinding, the agreement might be regarded as binding under international law despite the unexpressed U.S. intentions.  Moreover, as Congress considers whether to approve lifting U.S. sanctions, Congress needs to understand whether Iran’s commitments under the deal are binding (especially because if the U.S. commitments aren’t binding, neither are Iran’s).

As a result, at minimum the deal is unconstitutional unless the administration makes clear (and gets agreement from the other parties) that the deal is nonbinding.

2.  Even if the deal is nonbinding, the President has still exceeded his authority by making commitments on which he cannot deliver.  As noted, I entirely agree with Professor Goldsmith that the President, exercising his executive power over foreign affairs, may agree that he will take actions within his constitutional and statutory power if Iran undertakes specified actions (all in a reciprocal and nonbinding way).  But the Iran deal promises U.S. actions beyond President Obama’s term in office, and as a result promises actions over which he has no control.  To take two examples --

As noted, under Section 26:

The U.S. Administration, acting consistent with the respective roles of the President and the Congress, will refrain from re-introducing or re-imposing the sanctions specified in Annex II that it has ceased applying under this JCPOA, without prejudice to the dispute resolution process provided for under this JCPOA. The U.S. Administration, acting consistent with the respective roles of the President and the Congress, will refrain from imposing new nuclear-related sanctions.

Under Section 28:

Senior Government officials of the E3/EU+3 [which includes the U.S.] and Iran will make every effort to support the successful implementation of this JCPOA including in their public statements.

Both sections reflect ongoing commitments by the U.S. for the ten-year life of the deal.  At minimum, these sections purport to direct future U.S. Presidents to support the deal, and at least arguably they direct future Congresses not to re-impose sanctions.  Even if these directions are not binding as a matter of international law, they create diplomatic expectations which seem constitutionally unsound.  Nothing in the Constitution empowers the President to speak for future Presidents.

It may be argued that, whatever the Constitution’s original meaning, Presidents have entered into many nonbinding commitments on important matters, sufficient to establish a constitutional precedent.  I’m skeptical, however, that many prior nonbinding commitments have contained specific directions to future Presidents, as opposed to undertakings by the current President.  (And even if they have, they may simply represent previous constitutional violations).

In sum, the Iran deal is unconstitutional (a) because the President has not taken sufficient action to assure that it is nonbinding under international law, and (b) even if it is nonbinding under international law, it should be only a commitment of the current President and should not purport to be an undertaking of future Presidents for whom the current President cannot speak.


William Marshall: Evaluating the Obama Administration’s Commitment to Unilateral Executive-Branch Action
Michael Ramsey

William P. Marshall (University of North Carolina at Chapel Hill - School of Law) has posted Actually We Should Wait: Evaluating the Obama Administration’s Commitment to Unilateral Executive-Branch Action (2014 Utah Law Review 773 (2014)) on SSRN.  Here is the abstract:      

Although once committed to diminishing the expansion of presidential power, President Obama has become a proponent of energetic unilateral executive-branch action. Faced with a relentless and uncompromising opposition in Congress, the President has come to believe that it is only through the exercise of his unilateral powers that he will be able to accomplish his agenda and meet the promises that he made to the American people.

Some defend President Obama’s expansive use of presidential power because Congress has been so defiant. According to this view, the President should have the authority to aggressively use executive power when Congress does not act responsively or appropriately. This article contests that position. It agrees with the premise that increased polarization in American politics has made the work of the executive branch more difficult and that this Congress in particular has failed to act responsibly. It also agrees that presidents may no longer be able to expect that members of Congress will abandon their partisan interests in favor of the common good. It does not agree, however, that separation-of-powers constraints on the presidency should be adjusted to reflect this new political dynamic.

Part I of this article provides the necessary background by briefly describing the partisan political gridlock faced by President Obama and identifying some of the unilateral uses of presidential power employed by the Obama administration in its efforts to overcome or circumvent its political opponent's obduracy. Part II places the Obama administration's actions in context by discussing why presidential power had already become so expansive and why it continues to expand. Part III discusses the paradoxical role that congressional obstruction plays in relation to presidential power. Part IV identifies some of the concerns related to the centering of power in the presidency and questions whether, for whatever reasons, including congressional obstruction, presidential power should be expanded in a manner that accentuates those concerns. Weighing the concerns of government breakdown and harm to the national interest on one side versus aggrandized presidential power on the other, it contends that the constitutional answer to this question, with minimal exceptions, should be no.


Gregory Maggs: Judge Bork's Remarkable Adherence to Unremarkable Principles of National Security Law
Michael Ramsey

Gregory E. Maggs (George Washington University Law School) has posted Judge Bork's Remarkable Adherence to Unremarkable Principles of National Security Law (13 Ave Maria L. Rev. 5-19 (2015)) on SSRN.  Here is the abstract:

The late Judge Robert H. Bork is usually remembered as an eminent jurist and scholar in the fields of antitrust law and constitutional law. His judicial opinions and his writings, especially The Antitrust Paradox and The Tempting of America, are certainly standards in these areas. Judge Bork, however, also deserves acclaim for his contributions to other fields of law. One extremely important subject, in which Judge Bork’s judicial work has received little attention, is the law pertaining to national security and U.S. foreign relations. 

This essay discusses Judge Bork’s opinions in four important D.C. Circuit cases: Demjanjuk v. Meese, Persinger v. Islamic Republic of Iran, Finzer v. Barry, and Tel-Oren v. Libyan Arab Republic. In these cases, Judge Bork identified and followed nine very traditional principles of law concerning national security and foreign relations. These principles were so clear and well-established that at the time they seemed unremarkable. Indeed, while scrutinizing nearly every other aspect of Judge Bork’s records, proponents and opponents of his nomination to the Supreme Court said very little about his opinions in these cases. How Judge Bork addressed the law in the area of national security and U.S. foreign relations is a subject that deserves a fresh look in light of important Supreme Court litigation arising out of the War on Terror. In a series of cases, often decided by the narrowest of margins, Justices of the Supreme Court have effectively rejected each of the nine traditional principles that Judge Bork applied in his D.C. Circuit opinions. Contrasting the Supreme Court’s controversial decisions in these cases to Judge Bork’s very different and more restrained approach reveals another aspect of what was lost when the Senate failed to confirm Judge Bork’s nomination to the Supreme Court in 1987.


Bernadette Meyler: Law, Literature, and History
Michael Ramsey

Bernadette A. Meyler (Stanford Law School) has posted Law, Literature, and History: The Love Triangle (UC Irvine Law Review, forthcoming) on SSRN.  Here is the abstract:

A decade ago, at the end of her characteristically astute provocation of law and literature scholars in “Law, Literature, and the Vanishing Real,” Julie Peters suggested moving beyond the law/literature dichotomy into both “law, culture, and the humanities” and global “disciplinary tourism.” By silently glossing over “literature” in favor of the broader terms “culture” or the “humanities,” new formulations of the area of study might, she indicated, help to dispel the “interdisciplinary illusion” fueling the opposition between and relation of law and literature, dispensing with the notion shared by scholars of both law and literature that the “real” is located just over the methodological divide between the fields. Peters’ essay valuably rejected the binary that appears in far too many versions of law and literature scholarship. Its aspiration to put aside disciplinary boundaries among sectors of the humanities in studying “law, culture, and the humanities” or “law and the humanities” tout court has not, however, proved entirely feasible, nor is it necessarily desirable.

As those familiar with “law and society” know, the turn toward a broader category — like culture, or the humanities, or society — may not remain unvexed, as questions arise respecting the unity of the umbrella term and its framing in opposition to law. Moreover, from within the parameters of law, and particularly those of legal pedagogy, “law and the humanities” designates not precisely a decomposition of the boundaries between law and its outside, but a gesture toward one form of law’s outside, the humanistic, as opposed generally to the social sciences. Despite the proliferation of the “law and” fields, many — including law and the humanities — still appear from the vantage point of legal pedagogy as a superficial carapace that can be shed when financial exigencies press law schools to cut costs and reduce tuition.

This Article aims to demonstrate the centrality of the humanities to the core of law school pedagogy today. At the same time, by focusing on two areas within the humanities — literature and history — it tries to show how disciplines still matter, both as engines and impediments. Examining the shifting passions that bind law, literature, and history to each other, it foregrounds the dynamic quality of disciplinary relations as the attraction of fields for each other waxes and wanes. This dynamism itself advances the possibilities for new births of knowledge. Although unstable and of unknown fate, the love triangle of law, literature, and history continues to spawn fertile offspring.


Daniel Farber: The Declaration, the Constitution, and the Interpreter's Dilemma
Michael Ramsey

Daniel A. Farber (University of California, Berkeley - School of Law) has posted The Declaration, the Constitution, and the Interpreter's Dilemma: An Essay on Historical and Iconic Meaning on SSRN.  Here is the abstract:      

The Declaration of Independence is one of the paradigm texts in American history. It was originally written for a time-specific purpose. But it also has spoken to a broader audience across time, as an icon representing American ideals. After describing how the Declaration has been given both historical and iconic meaning by judges, presidents, and public figures, this Essay considers the relevance of these two forms of meaning to current debates over constitutional interpretation. Originalists generally privilege the historical meaning of texts. 

Yet originalist Justices on the Court have acknowledged that iconic meaning also exists and can sometimes be more relevant. In Pleasant Grove City v. Summum, 555 U.S. 460 (2009), these originalist Justices turned to iconic meaning over historical meaning, endorsing dynamic interpretation of monuments -- even those containing texts. Ironically, then, they found fluidity in the meaning of texts that are literally carved in stone. 

The Essay closes with a discussion of the interpreter’s dilemma: the tension between fidelity to the past (served by historical meaning) and affirmation in the present (served by iconic meaning).


Thomas Colby: In Defense of the Equal Sovereignty Principle
Michael Ramsey

Thomas Colby (George Washington University Law School) has posted In Defense of the Equal Sovereignty Principle (Duke Law Journal, Vol. 65, 2016, forthcoming) on SSRN.  Here is the abstract:     

The Supreme Court of the United States based its landmark decision in Shelby County v. Holder on the proposition that the Constitution contains “a fundamental principle of equal sovereignty among the States.” For the central holding of a blockbuster constitutional case, that assertion was surprisingly unsupported. The Court simply declared it to be true, and made little effort to substantiate it. Naked as it was, the Court’s conclusion prompted savage criticism not only from the left, but also from the right. The consensus critical reaction was epitomized by Judge Richard Posner’s remark that “the court’s invocation of equal sovereignty is an indispensable prop of the decision. But...there is no doctrine of equal sovereignty. The opinion rests on air.” Critics also worried that, because there are countless federal laws that can be said to treat the states disparately, the Court’s brand-new equal sovereignty principle is, as Justice Ginsburg put it in her strident dissent, “capable of much mischief.” This Article contends that the critics of Shelby County are only half right — and that the Shelby County majority, despite its cursory analysis, is half right too. The critics are correct that the Court seemingly pulled the equal sovereignty principle out of thin air — that it played a little too fast and loose with precedent and failed to wrestle adequately with constitutional text, structure, and history. Nonetheless, this Article concludes — after performing the thorough examination of the traditional sources of constitutional law that was missing from the ipse dixit of Shelby County — that there is indeed a deep principle of equal sovereignty that runs through the Constitution. In James Madison’s words, the Constitution contemplates “a government of a federal nature, consisting of many coequal sovereigns.” Properly understood, however, the equal sovereignty principle is not a guarantee of state equality in all respects. It guarantees only equal sovereignty — equal capacity for self-government — which makes it more fundamental, but also less expansive, than critics have feared.


Ilya Somin on the Constitution and the Iran Deal
Michael Ramsey

At Volokh Conspiracy, Ilya Somin: Is the Iran deal constitutional? (following up on my post here). This is a key point:

In the slightly longer run, however, the constitutional objections to the agreement might make it easier for a future administration to repudiate it. Opponents of the deal could potentially begin laying the groundwork for such a move by taking the position that it will not be legally binding unless and until it gets affirmative congressional approval.

At least, the administration should be pressed to explain why it thinks the deal is constitutional.  (I have not seen an official defense, if there is one.)