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38 posts from December 2015


Hiroshi Motomura: Executive Authority, Enforcement, and the Rule of Law in Immigration Law
Michael Ramsey

Hiroshi Motomura (University of California, Los Angeles - School of Law) has posted The President's Dilemma: Executive Authority, Enforcement, and the Rule of Law in Immigration Law (55 Washburn Law Journal, forthcoming) on SSRN.  Here is the abstract:      

In 2012, President Obama announced the Deferred Action for Childhood Arrivals (DACA) program, and in 2014, he announced an expansion of DACA as well as a new program called Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). Both programs would allow some noncitizens who may be subject to deportation (technically, “removal”) from the United States to apply for multi-year temporary reprieves. These programs have faced a combination of policy and legal challenges. This article, based on my 2015 Foulston Siefkin Lecture, does not address all of the issues posed by DACA and DAPA, but it elaborates on two points that appear very briefly in my book, Immigration Outside the Law (Oxford 2014). First, whether DACA and DAPA are consistent with federal immigration legislation is a question that can be persuasively answered only with reference to the operation of the entire federal immigration scheme, which is one of selective admissions, selective enforcement, and vast discretion in enforcement. In this scheme, the key question is not whether enforcement discretion is exercised, but rather who exercises it. Second and relatedly, the discretion in federal immigration enforcement is so vast and so central to the scheme’s operation that the President faces a dilemma: how to control discretionary enforcement in the field. Adherence to the rule of law requires that the President assert meaningful control over the exercise of prosecutorial discretion by ensuring that discretion is exercised in a uniform, predictable, and non-discriminatory manner. DACA and DAPA respond to this dilemma in two principal ways. First, they regularize grants of deferred action through an application process, followed by a formal process of discretionary adjudication that relies initially on categories and guidelines. Second, DACA and DAPA transfer discretionary authority away from the units within the Department of Homeland Security where rank-and-file employees have actively resisted and challenged prosecutorial discretion guidelines as well as these deferred action programs. In short, DACA and DAPA respond to the President’s dilemma in ways that are grounded not only in the federal legislative scheme but more fundamentally in the rule of law.


John McGinnis on the Judicial Duty of Clarity
Michael Ramsey

At Liberty Law Blog, John McGinnis: More Evidence for the Judicial Duty of Clarity.

In a previous post, I discussed my new paper, The Duty of Clarity. There I show that the original meaning of the Constitution requires a clear violation of its terms before invalidating legislation. But the Constitution also demands that judges use the ample interpretive methods available to clarify the precise meaning of our fundamental law. Both the obligations of clarity and clarification flow from the judicial duty, a duty that is an aspect of the judicial power granted under Article III of the Constitution. 


Since finishing a draft of the paper, I have come across one more powerful piece of evidence for this proposition. It is widely agreed among early Supreme Court justices that this duty of clarity exists and was binding on them. Nevertheless, I had not previously found any instance in which a justice claimed that the duty was the proximate cause of a refusal to hold legislation unconstitutional.

The case in which the duty of clarity appeared to be decisive was United States v. Ravara. ...


Matthew Franck (and others) on Substantive Due Process
Michael Ramsey

At NRO, Matthew Franck criticizes George Will: Asking Busybody Judges to Overrule Busybody Legislators.

Will is right to say that due process imposes “limits inherent in the idea of law” on the action of legislatures, and that “generality” and “regularity” are among those limits.  As I have shown in an article on the historic emergence of “substantive due process,” such norms are what distinguish a law, properly speaking, from a decree in the guise of legislation. But in the entire tradition of Anglo-American jurisprudence prior to the Dred Scott case, there is no judicial deployment of the due process principle to test the “fairness,” “rationality,” or justice of the substantive policy choices of legislatures.  Transforming due process into an all-purpose clause for overturning laws that fail to live up to the moral vision of judges was the work of Dred Scott, and continued in Lochner v. New York, Roe v. Wade, and—most recently—Obergefell v. Hodges.  Conservatives and constitutional originalists should have no truck with this ahistorical, anti-textual jurisprudence, which may occasionally achieve desirable results for political justice but will always traduce the proper limits of judicial power. ...

Evan Bernick has a strong response at Huffington Post: Pagedale and the Rule of Law: Matthew Franck's Unoriginal Case Against Substantive Due Process; as does Timothy Sandefur at Freespace: Franck's misrepresentation of my views (and) of the Constitution.  Here's Bernick: 

Franck is wrong on all counts. So-called substantive due process is firmly grounded in constitutional text; rooted in ideas about the function and limits of government that were accepted by the Founding generation, and critical to ensuring that the courts perform their appointed function as "bulwarks of liberty." It is Franck who breaks with Marshall, Hamilton, and Madison. [Timothy] Sandefur has already effectively demolished Franck's arguments; I come to spread salt on the ground, lest he (or others) seek to build upon it again.

Unsurprisingly, Matthew Franck has a further response: Due Process, Logic, and History, which is pretty harsh in general and in particular in this passage:

In general, Sandefur reasons that the unjust is the irrational, the irrational is the arbitrary, and the arbitrary is forbidden by the principle of due process.  This is a string of equivocations, and begins with unsubstantiated opinion.  The fact that Sandefur and I might even agree that a legislative enactment is unjust does not make it so, and it certainly does not follow that it is arbitrary under the fairly concrete meaning of due process, which requires regularity, generality, prospectivity, notice, and the like—all of which are present in the laws Sandefur lately condemns, but absent in his own favorite examples such as in Shirley Jackson’s The Lottery.  The trouble with practitioners of substantive due process is that they do not so much employ logic as collapse it.

I'm happy to stay out of this fight, except to note that it is not particularly helpful to originalism that most libertarian originalists tend to side with Bernick and Sandefur, while most non-libertarian originalists don't.


Jack Goldsmith on Authorizing the War Against the Islamic State
Michael Ramsey

At Lawfare, Jack Goldsmith argues that the omnibus spending bill just passed by Congress constitutes an authorization to use force against the Islamic State because it approves spending for operations against the Islamic State.  As he argues (in a post written just before the bill passed):

I have not read the vast majority of the 2000-page Omnibus bill that contains the fiscal year 2016 Defense Appropriations bill.  But presumably Representative Hal Rogers, the Chairman of the House Appropriations Committee, has read it.  And he says that the bill “includes funds to combat the real-world threat of the Islamic State of Iraq and the Levant (ISIL).”  The funds are probably located in the “$58.6 billion in Global War on Terror/Overseas Contingency Operations (GWOT/OCO) funding” that is sprinkled around the bill.  The Obama administration has previously made clear that GWOT/OCO funds are used in large part for the fight against ISIL, and it surely did so again in places I cannot now find.   

If this bill clearly appropriates funds for the fight against ISIL, then Congress is about to vote for an authorization to use force against ISIL.  As this OLC opinion (pages 332-339) explains:

[B]asic principles of constitutional law — and, in particular, the fact that Congress may express approval through the appropriations process — and historical practice in the war powers area, as well as the bulk of the case law and a substantial body of scholarly opinion, support the conclusion that Congress can authorize hostilities through its use of the appropriations power.  Although it might be the case that general funding statutes do not necessarily constitute congressional approval for conducting hostilities, this objection loses its force when the appropriations measure is directly and conspicuously focused on specific military action.

I think this is probably correct as an originalist matter (embracing the qualification in the last sentence above that "the appropriations measure is directly and conspicuously focused on specific military action").  As I argued here, the best way to think about congressional authorizations to use force (as opposed to formal congressional declarations of war) is that they are delegations to the President.  They allow, but (typically) do not require, the President to use force in specified places or against specified opponents.  Thus they do not "declare war" in themselves, but they authorize the President to declare war (whether by proclamation or by using force).

Assuming these authorizations satisfy the non-delegation doctrine (whatever one thinks it take to do so), there should be no constitutional objection to them.  If the authorization is "directly and conspicuously focused on specific military action" it should satisfy all but the strongest version of the non-delegation doctrine.  And war-powers-related delegations have a long history, going back to the 1798 Quasi-War and the wars against the Ohio Valley tribes in the early 1790s.

If war powers delegations are constitutional, then I don't see why they couldn't take the form of spending authorizations.  A spending authorization seems necessarily to approve the underlying action.  If I say to my son "Here's $2 to buy an ice cream," and he buys an ice cream, he is going to be quite surprised if I then say "hey, I didn't say you could have an ice cream."  Again, the specificity limit is key: simply giving my son $2 as an allowance does not authorize him to spend it on anything he wants (such as ice cream).  But if the ice cream is specifically mentioned or clearly contemplated when I hand out the money, it seems hard to say that it isn't authorized.


Marty Lederman on the Paris Climate Agreement
Michael Ramsey

At Balkinization, Marty Lederman: The constitutionally critical, last-minute correction to the Paris climate change accord. Spoiler: the change is from "shall" to "should":

[T]he word "shall" would have established a legally binding obligation under international law--one that the U.S. delegates apparently thought would (as a matter of U.S. constitutional law) require the approval of either two-thirds of the Senate or majorities of both Houses of Congress.

He continues: 

[T]he determinative question is not so much whether the agreement as a whole is in some sense "binding," but instead whether any of particular provisions of the agreement impose the sorts of binding obligations that would trigger the requirement in U.S. constitutional law for Senate or congressional approval.  As Daniel Bodansky writes, in a very useful, concise paper on such questions in the context of the Paris accords:  "Treaties often contain a mix of mandatory and non-mandatory elements. . . .  [T]he Paris agreement might contain a mix of mandatory and hortatory provisions relating to parties’ nationally determined contributions and other issues. For example, it might include commitments that parties maintain, report on, and update their NDCs throughout the lifetime of the agreement, but make the achievement of NDCs only hortatory."  As one U.S. diplomat is quoted as saying, the Paris accord is not subject to Senate or congressional approval because "[t]he [emissions] targets are not binding; [and] the elements that are binding are consistent with already approved previous agreements.”

There seems a potentially substantial degree of wiggle room in that last statement.  Is a binding agreement immune from the congressional/senatorial approval requirements because its binding elements are "consistent with already approved previous agreements"?  I suppose this depends on the nature of those "elements" and the meaning of "consistent with".  

But I am skeptical of this principle as a textual matter.  Either an agreement is a binding, in which case it needs approval (unless it is of the subject matter that can be done by sole executive agreement), or it is not a binding agreement.  Otherwise, I do not see how the President is complying with the constitutional direction that all treaties gain approval.   There's no exception for treaties that are similar to prior treaties, nor should there be.  The fact that an obligation has been approved by the Senate in one agreement should not automatically mean it can be added to a second agreement without the Senate's further approval.  The two agreements may have (for example) different parties, different reciprocal obligations, different durations and termination provisions, and different dispute resolution procedures.   It's hard to say for sure in this case without identifying the nature of the binding obligations, but I would say that the acknowledgement of some binding obligations in the agreement would make it hard to defend constitutionally.


Caleb Nelson: Civil Forfeiture and the Constitution
Michael Ramsey

Caleb Nelson (University of Virginia School of Law) has posted Civil Forfeiture and the Constitution (Yale Law Journal, forthcoming) on SSRN.  Here is the abstract: 

Many state and federal statutes provide that when property is used in certain prohibited ways, ownership of the property instantly passes to the government. Often, the statutes allow these forfeitures to be declared in civil proceedings against the property itself, without the normal safeguards of the criminal process. Indeed, if no one claims the property after proper notice, the government’s assertion of ownership can become incontestable without any judicial proceedings at all. Statutes authorizing such civil or administrative forfeiture might seem like egregious violations of both property rights and criminal-procedure rights guaranteed by the federal Constitution. But while forfeiture statutes may be unfair and unwise, this paper cautions originalists not to assume that they are unconstitutional. The paper concludes that the original meaning of the Constitution (as liquidated by historical practice) does not foreclose the three key features of forfeiture statutes considered here—the fact that noncriminal forfeiture typically proceeds in rem rather than in personam, the fact that people often must file timely claims in order to trigger judicial proceedings, and the fact that claimants are not afforded the procedural protections that the Constitution requires for criminal defendants.


Checking the Government with Anti-Severability Provisions
Mike Rappaport

The federal government has been arguing that the terror attacks in Paris and San Bernardino require that it be able to circumvent encryption of messages, something they have sought for a long time.  A cynic might argue that they see their opportunity and are seizing it.

But let's assume that they actually need the access to encrypted messages to combat terrorism.  How can the government be monitored so that the acquired information is not used for other purposes, such as non-terror law enforcement or disclosure for political purposes?

Here is one idea.  Congress should pass a law that prohibits the use of this information for any purpose other than the prevention of terrorism.  The sanctions for a violation should be both criminal and civil.  Moreover, an Inspector General should be given the tools to uncover any such wrongdoing. 

It might be thought that the executive branch might simply choose not to prosecute the individuals involved, as it has have done so many times in the past.  But I believe there is a way to prevent such behavior.  Congress should require the executive to bring prosecutions for violations of this unauthorized disclosure law whenever it has probable cause to believe a violation has occurred.  While the executive might argue that it is unconstitutional to take away its prosecutorial discretion, I have argued in the past this is untrue.

But the executive might argue that it believes it is unconstitutional to take away its prosecutorial discretion and therefore choose not to enforce the law requiring prosecutions.  To prevent this from occurring, Congress should make the encryption bypass authority nonseverable from the prosecution requirement.  That is, Congress should include an anti-severability provision that states that if the prosecution requirement is not enforced based on constitutional grounds, the encryption bypass authority should also be unenforceable.

There is nothing problematic about such a provision. Many laws contain provisions that are not severable – if one provision is found to be unconstitutional, then another provision is unenforceable – because Congress either implies or states it would not want the one provision enforced without the other.  My guess is that the executive would be reluctant to lose its encryption bypass authority and therefore would bring the requisite prosecutions.

I believe that such non-severability provisions would be a useful check against the executive.  I hope to blog about them in the future.

An Invitation (and Challenge) to Anti-Originalist Historians
Michael Ramsey

Inspired by Kurt Lash's post Do Historians Understand Originalism? (noted here) and the Fordham Law Review's historians' symposium, I offer the following invitation (or challenge, depending on how you look at it) to historians who are originalist critics. 

Saikrishna Prakash and I (separately, but with lots of overlap) have put much energy into developing an original meaning account of the declare war clause.  While we differ on some details, our general conclusion is that the clause substantially limits the President's ability to initiate the use of military force without Congress' approval.  My impression (with all due modesty) is that this account has been generally persuasive to a fair number of modern originalist-oriented legal scholars, with the significant exception of John Yoo and a few others.  (Their position is that the clause does not, or at least does not materially, limit the President's use of force).

I am not aware that any pure historian has commented in detail on this debate.  My invitation to historians is this: tell us where we are wrong. 

We could be wrong at least three ways.

(1) Perhaps there is no identifiable meaning of the declare war clause.  That is, perhaps we can't tell what it's language meant, how people of the time understood it, what the framers thought it's role was, etc.; the Yoo position is as likely to be right as ours, but the bottom line is that it's all indeterminate.  No useful light can be shown on the matter.  So, really, one can't say that the clause limits the President.  I would like to hear, though, why we can't reach any useful conclusions on the matter (since I think we can).

(2) Perhaps the Yoo position is the better reading (he uses a lot of history and historians in support).  I'm not aware of any pure historian taking this view, but I would be interested to hear their account.

(3) Perhaps our conclusion is right, but we are getting there the wrong way.  This would be the most interesting, I think, because it would illustrate the differences in how historians approach original meaning and how legal scholars do.  But I think it's not sufficient to quibble over isolated pieces of evidence (though I welcome quibbles as well).  What  I'd most like to see is a historian's account of how the clause limited the President.

I think this is a pretty fair test.  The meaning of the clause is not obvious, as the idea of declaring war is ambiguous and somewhat outdated, so it requires some attention to history to understand it.  Assuming most academic historians lean somewhat to the left politically, there is less likely to be a policy-driven reaction against originalist conclusions here.  Legal scholars, while having a clear majority and minority position, are far from unanimous, and the clause's meaning is highly contested among political commentators and executive branch and legislative branch lawyers.  So it is not an easy or intuitive case.  Yet ultimately I do think there is a answer, and I've tried to make the case as best I can (and Prakash makes it better).

I mean this invitation in an entirely serious and non-confrontational way.  I really would like to understand, concretely, what it is that historians don't like about originalism, as I think we can learn from each other.  I think working in depth on a particular issue, rather than in the abstract or on the basis of scattershot examples, would make the discussion more meaningful.  So it is a genuine invitation.

But it's also a bit of a challenge.  Because if historians are going to say that originalism as an enterprise is flawed (as opposed to just that some arguments are flawed or that some clauses can't be given meaning), they have to show that all (or most, anyway) originalist analyses are flawed.  Since I'm pretty confident of this one, I offer it up as a target.  To make their criticism stick, I think they need to knock it down.

So what do you say?  I think it would make a great article.


Kurt Lash on Historians on Originalism
Michael Ramsey

At Liberty Law Blog, Kurt Lash, Do Historians Understand Originalism?  It begins: 

I just returned from a conference of law-department and history-department legal historians discussing the Thirteenth Amendment (well done, Randy Barnett). As I listened to historian after historian explain to us law professors just what we are doing wrong, I was surprised by how ignorant some well-known historians are about public meaning originalism. While I appreciate Eric Foner’s bravely spoken declaration (to a room full of originalist scholars) that “there is no such thing as an original meaning of a text,” I respectfully disagree. In fact, I think his recent op-eds about the true meaning of the Thirteenth Amendment suggest that even Eric does not really believe historical inquiry is incapable of discovering original legal meaning.

Actually, I am quite certain that law professors are far, far ahead of Foner in developing theories of textual interpretation and methodologies for identifying common historical patterns of language usage. And where historians like Foner seem to believe that historical knowledge is directly applicable to contemporary legal problems and politics, originalists understand that historical meaning is one thing, but applying such meaning to contemporary cases requires a separate normative argument. And woe to the originalist who fails to reveal her priors!

(and continuing with some harsh words for Jack Rakove's piece in this symposium in the Fordham Law Review).

RELATED:  Ian Bartrum (UNLV) has this recent post on Prawfsblawg about the Fordham  symposium.



So Is It Binding?
Michael Ramsey

Secretary of State Kerry is applauding the agreement reached by the climate change conference in Paris.  But (as far as I can tell) he has not been clear on whether it is a binding agreement under international law.  For reasons I have discussed here in connection with the Iran nuclear deal, that makes a huge difference constitutionally.

As I assume the Paris agreement will not be submitted to Congress or the Senate for express approval as a treaty or a congressional-executive agreement, the question is: how can it be constitutional?

(1)  It could be a nonbinding agreement.  This is the most promising constitutional route.  As I've argued previously, the President likely has power to conclude nonbinding agreements as part of his executive power in foreign affairs.  There remain a couple of concerns (which I developed in connection with the Iran deal).  The most prominent is that, in my view, the President has a constitutional obligation to make clear that a nonbinding agreement is nonbinding.  Although the State Department eventually made clear that the Iran agreement was nonbinding, the delay in doing so was problematic, especially to the extent it may have misled other parties to the agreement or inadvertently created obligations under international law.  Second, on a quick read, the Paris agreement does not look like a nonbinding agreement; rather (as Dan Bodansky anticipated here), it looks like an ordinary multilateral treaty in its formalities (full text here; note for example the references to "entry into force"; the provision that no reservations may be made; and repeated use of "shall" in reference to parties' undertakings).  The United States cannot simply declare something to be nonbinding (especially a multilateral agreement) if the other parties to the agreement reasonably do not understand it this way.  Third, as I argued in connection with the Iran agreement, it is problematic for the President to commit the United States, even in a nonbinding way, to specific actions beyond the President's term (and thus beyond his control).  It amounts to promising something he cannot deliver.  I haven't looked closely enough at the Paris agreement to know whether this is a problem.

(2)  It could be an executive agreement.  Again, as discussed in connection with the Iran deal, in my view the President has some limited power to enter into binding agreements on his own authority -- but only those that are short-term, minor, or within his specific substantive areas of constitutional authority such as military agreements.  It would seem a stretch to put the Paris agreement in this category.

(3)  Perhaps the President could argue that the agreement was approved in advance (or more likely that authority was delegated to him) by a prior statute.  This seems unlikely, but it depends on a review of applicable statutes that I haven't done.  I agree with Oona Hathaway in this article that the standard for finding approval/delegation to enter into international agreements should be fairly high given the "lock in" effects of a binding international agreement.  One would want to be confident not only that Congress wanted the President to take action in a given area, but also that it wanted the President to be able to lock in that action against future revision.

The Paris agreement seems to raise two other possibilities.  First, suppose the agreement is binding in a formal sense (that is, it has the appearance of a binding agreement, the parties intend it to be binding, etc.) but the actual substantive provisions do not in fact impose any material requirements upon the parties.  My impression is that this might be a fair description of the agreement.  Can the President enter into such an agreement on his own authority?  Maybe, on one of two theories: (1) despite the formalities, it is in effect an nonbinding agreement and so should be treated as one for constitutional purposes; or (2) because it does not impose any material obligations on the United States, it can be concluded as a (putatively binding) executive agreement.  

Finally -- and I am only speculating here, again not having studied the relevant provisions -- perhaps the Paris agreement will be incorporated into another binding agreement, specifically the pending Trans Pacific Partnership (TPP).  The TPP makes a reference to the Paris agreement; if the reference is sufficient to incorporate the Paris agreement into the TPP, then Congress' approval of the TPP (if it happens) arguably would be an approval of the Paris agreement as well.  If you think Congress' approval (as opposed to the Senate's supermajority approval) is constitutionally sufficient for the TPP, that might be a way to make the Paris agreement constitutional.  At least, it's something for Congress to think about as it considers whether to approve the TPP.