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32 posts from September 2016


Mitchell Berman: The Tragedy of Justice Scalia
Michael Ramsey

Mitchell N. Berman (University of Pennsylvania Law School) has posted The Tragedy of Justice Scalia (Michigan Law Review, Vol. 115, 2017, forthcoming) on SSRN.  Here is the abstract:      

Justice Antonin Scalia was, by the time of his death last February, the Supreme Court’s best known and most influential member. He was also its most polarizing, a jurist whom most students of American law either love or hate. This essay, styled as a twenty-year retrospective on A Matter of Interpretation, Scalia’s Tanner lectures on statutory and constitutional interpretation, aims to prod partisans on both sides of our central legal and political divisions to better appreciate at least some of what their opponents see—the other side of Scalia’s legacy. Along the way, it critically assesses Scalia’s particular brand of originalism and sketches a living constitutionalist alternative. It concludes by arguing not only that Scalia was a tragic figure who combined elements of greatness with deep flaws, but also that his life and judicial performance hold lessons of profound importance for all who care about our law and our legal culture.


Could President Trump Unilaterally Withdraw the U.S. from its International Agreements?
Michael Ramsey

At Opinio Juris, Julian Ku: Preparing for Trumpxit: Could a President Trump Withdraw the U.S. from International Treaties and Agreements?

Professor Ku concludes that a President Trump could for the most part constitutionally withdraw the U.S. from international agreements by giving the notice required.  I mostly agree with his assessment as a matter of the Constitution's original meaning, but with a few qualifications.

Although the Constitution says nothing directly on the matter, I think the best general assessment of the original meaning is this:  (a) The President can withdraw from all treaty and treaty-like undertakings according to their terms.  The Constitution does not say directly who has power to decide to trigger withdrawal provisions, but the President has residual executive power in foreign affairs -- and moreover is charged with executing treaties as part of the supreme law of the land.  Deciding whether to withdraw from a treaty under its terms is part of executing the treaty and directing U.S. foreign affairs, so the power is with the President.  (b) The President cannot terminate treaties in violation of their terms because treaties are part of the supreme law of the land (even if non-self-executing, see here); therefore, Presidents must take care that they are faithfully executed, and violating them is not faithful execution. (c) The President can terminate non-treaty agreements even in violation of their terms because they are not part of the supreme law of the land (unless they are incorporated into a statute).  

As applied to some obligations President Trump might want to terminate:

(1) Mutual defense treaties.  I agree with Professor Ku that the President may terminate such treaties by giving the prescribed notice.  President Carter terminated the Taiwan treaty in this way, and that is constitutional under the rules sketched above (as I argued in The Constitution's Text in Foreign Affairs).

(2) Nonbinding agreements.  Again I agree with Professor Ku that the President may terminate nonbinding agreements.  However, he says:

I think there is no legal problem with a President Trump  unilaterally withdrawing from the Paris Agreement or the  JCPOA (aka the Iran Nuclear Deal).  As I have argued in the past (here and here), both agreements are likely to be “nonbinding” political agreements, and can be terminated at the new President’s sole discretion.

I agree regarding the Iran deal, but the Paris Agreement is much more complicated.  As explained here, as a whole the Paris Agreement is a binding international obligation, even though the more important provisions of it are not binding.  Moreover, the Paris Agreement by its terms only allows a notice of withdrawal after three years.  So if President Trump wants an immediate withdrawal, he would have to violate the Agreement (I am assuming that the Agreement will take effect before the next President takes office; I see no constitutional barrier to the President withdrawing the U.S. ratification if the treaty has not taken effect).

However, the Paris Agreement is not a treaty and therefore is not supreme law of the land.  Perhaps, as a matter of U.S. domestic law, the President can terminate it, even though that entails violating international law.  But some commentators have argued that the President's constitutional "take care" obligations extend to international law as well as to the supreme law of the land (the take care clause is not drafted in parallel with the supremacy clause, suggesting that it might be broader).  I have taken this position, very tentatively, with regard to customary international law.  Whether that would extend as well to violating non-treaty agreements is a more difficult question.

Further, though, in my view there is a plausible argument the Paris Agreement is unconstitutional because it should have been adopted as a treaty (see here).  Maybe, then, President Trump can withdraw from the agreement on this ground, as his duty to uphold the Constitution presumably overrides any duty he might have to international law.

(3) Congressional-executive agreements.  Professor Ku suggests that there might be some difficulty with the President withdrawing from trade deals:

The hardest question here has to do with trade agreements like NAFTA and the WTO.  Most commentary, including this paper by Gary Hufbauer, have assumed a President Trump could unilaterally terminate all trade agreements (see some dissenting views from Rob Howse here).  Unlike the Paris agreement or the JCPOA, these are unquestionably binding agreements that are approved by Congress.  But unlike a traditional arms control treaty like NATO, withdrawing from NAFTA or the WTO could require some meaningful changes to U.S. domestic law.  Moreover, unlike a traditional treaty, the President engages in trade agreement negotiations under the “trade promotion” authority enacted by Congress prior to the conclusion of any trade agreement.  In other words, the President could be understood to be negotiating pursuant to a delegated congressional power as opposed to under his inherent constitutional powers.

Here I disagree, and accept what appears to be the more conventional view: the President can unilaterally withdraw.  First, it may be true that in order to carry into effect a withdrawal from (say) NAFTA, various changes would need to be made to U.S. law.  But even if that is true, that would not prevent the President from withdrawing from the agreement.  It would simply be the case that certain benefits conveyed by Congress in order to implement the agreement would remain on the books in the U.S. -- but they would no longer be required by any international agreement.  I expect that there are a number of NAFTA benefits that are implemented but executive order pursuant to a delegation, and the President could terminate these.  And Mexico, for example, could change its laws to deny NAFTA benefits to the U.S. upon the President's withdrawal.  The agreement is fundamentally distinct from the implementing legislation, and the President can terminate one even though he lacks authority to terminate the other.

Second, the fact that the trade agreements are negotiated under a congressional delegation of authority does not imply any limitation on the President.  All trade authority delegated to the President is discretionary.  The President is not under any statutory obligation to complete any trade deal.  That being so, I don't see why he would be under any statutory obligation to keep a trade deal in place.  Importantly, neither the NAFTA implementation act nor (as far as I know) the acts implementing other trade deals contain language incorporating the agreement in its entirety into U.S. law.  (Even if they did, that incorporation would also incorporate the withdrawal-by-notice provision.)  The implementing acts simply say Congress "approves" the deal; they do not say a deal shall be made.  For example, the NAFTA implementation act, section 101(b), says only:

    The President is authorized to exchange notes with the Government of Canada or Mexico providing for the entry into force, on or after January 1, 1994, of the Agreement for the United States....

Under this provision the President is not required to provide for the agreement's entry into force.  Since nothing expressly requires the deal to remain in force once it becomes effective, I think it hard to imply such an obligation.  Again, the key is that the President would not violate any U.S. law by withdrawing from the agreement.  

It would, of course, be a different matter if an implementation act required the approval of Congress to withdraw from the agreement, but as far as I know, no such provision exists in any U.S. statute.  Professor Ku points to Section 125 of the WTO implementation act, but it is somewhat different.  It provides a way for Congress to terminate the agreement, including over the objections of the President.  That doesn't say anything about the President's ability to terminate the agreement over the objections of Congress (if anything, by failing to address the President's power to withdraw, it implies that the power is not limited).

So in sum I think President Trump could withdraw from any international agreement he wanted to, provided that in the case of treaties (and perhaps in the case of other binding agreements that are not unconstitutional) he observed the formalities for withdrawal specified in the agreement.

I leave it to readers to decide whether that is a reason to vote for him or a reason to vote against him.


Constitutional Change, Article V, and the Presidential Election
Mike Rappaport

Recently, I did a podcast interview on Constitutional Amendments and the Presidential Election.  The interview, which was conducted by the National Constitutional Center, also featured David Strauss of the University of Chicago.  Jeff Rosen, the President of the National Constitution Center and a Professor at George Washington Law School, was the interviewer.

It was an interesting discussion, which focused both on the constitutional amendment process and the impact that Hillary Clinton and Donald Trump might have on constitutional change if they were elected.

It was fun discussing these issues with David Strauss, because his views are so diametrically the opposite of mine.  Many nonoriginalists resist being described as living constitutionalists.  Strauss embraces it.  He takes the opposite position of mine on a whole range of specific issues, which follows from his more general approach.

Strauss believes two main things about constitutional change.  First, he claims that the actual practice of constitutional change occurs through judicial decisions and other governmental actions.  In fact, he believes that constitutional amendments are largely irrelevant.  Second, he believes that constitutional amendments are not generally a good way generally of changing the Constitution.  The way that is actually practiced – where judges follow a common law like system – is better.

My view obviously differs from Strauss’s, but more as to normative matters than as to descriptive ones.  As a matter of description, I agree to a significant extent with Strauss that the Courts do in fact effect most of the constitutional change in the country through nonoriginalist interpretation of the Constitution.  This has been going on at least since the New Deal, but perhaps to a lesser degree for a considerably longer period.

The difference is that I believe this is a bad system.  It would be far better if constitutional change occur through the amendment system.  Although the amendment system is strict, it has many virtues.  First, the amendment system ensures that constitutional amendments are supported by a consensus of the nation.  To secure this consensus, people must compromise on their constitutional goals.  Second, this consensus requirement means that people can feel more secure that the Constitution will not be changed in ways that they strongly dislike.  Third, the amendment system makes use of a limited veil of ignorance.  Because amendments typically last for so long, it is often difficult to determine how the amendment will apply to people in the future.  This forces people to evaluate an amendment based on its public interest rather than on whether it benefits them.

By contrast, under Supreme Court judicial updating, constitutional change largely occurs through a majority vote of 9 people.  There is little reason to believe these decisions will be supported by a consensus.  Nor are these changes enacted by a veil of ignorance.  If the Supreme Court does not like the way its decision applies in the future, it can overturn or modify its prior decision.

Charles Reid: America's First Great Constitutional Controversy
Michael Ramsey

Charles J. Reid Jr. (University of St. Thomas School of Law (Minnesota)) has posted America's First Great Constitutional Controversy: Alexander Hamilton's Bank of the United States on SSRN.  Here is the abstract:      

This article aims at a careful reconstruction of what has been called America’s first great constitutional controversy — the 1791 debate over Alexander Hamilton’s Bank of the United States. This article reviews this debate both at the congressional level and within the executive branch. The debate over the bank led to the articulation of theories of constitutional interpretation that are with us still. On the one hand, we find theories of interpretation that stress implied constitutional powers and an expansive role for the federal government. On the other hand, we encounter theories of interpretation that emphasize limited federal authority and a preeminent role for the states. These debates included not only well known figures, such as Alexander Hamilton, Thomas Jefferson, and James Madison, but other leading figures of the time less well known today, such as Fisher Ames, Theodore Sedgwick, and Elbridge Gerry.


Ilya Somin on Donald Trump’s Supreme Court List and Originalism
Michael Ramsey

Ilya Somin at Volokh Conspiracy: Donald Trump’s expanded Supreme Court list changes nothing.  From the introduction:

On Friday, Donald Trump issued an expanded list of potential Supreme Court nominees, adding ten more names to the list of eleven options he put out back in May. Whether you like the names on the expanded list or not, it does not change any of the reasons why Trump is a menace to the Constitution. It also does nothing to change the reality that Trump’s longterm agenda is deeply inimical to originalism, limited government, and efforts to ensure that the federal judiciary will protect those values.

The most prominent name on the new list is Utah Senator Mike Lee, ironically also a leading #NeverTrump conservative.  . . . Senator Ted Cruz has cited the expanded list as one of his principal reasons for belatedly endorsing TrumpRegardless of what Cruz might say, the list changes nothing. 

Voicing concerns over Trump’s list of nominees:

To the contrary, he has a wide-ranging repressive agenda that would undermine the Constitution at many points. And much of that agenda is an outgrowth of views he has consistently held since long before the 2016 campaign. Unlike the Supreme Court list, it is probably not just a campaign ploy.

Given these types of commitments, it seems likely that Trump will seek to appoint judges who will allow him to do what he wants in all these areas, not originalists or limited government conservatives who might rein them in.

Trump’s threat to originalism:

 . . . As prominent originalist constitutional scholar Randy Barnett points out, “puts it, “[i]f Trump takes over the Republican Party it’s likely to become a right-wing nationalist party of the kind you see in Europe.”

In the long run, such a party would have little use for originalism, free markets, property rights, or constitutional constraints on government power, more generally. To the contrary, all of these things are likely to be obstacles to its authoritarian nationalist agenda. And, like other parties throughout our history, a Trumpist GOP would, over time, appoint judges who are in generally line with its objectives. That’s a far greater threat to constitutional originalism and limited government than even a Hillary Clinton victory is ever likely to be.

For originalists, limited-government conservatives, and libertarians who care about the judiciary, one or two distasteful Supreme Court appointments are a far lesser danger than having both major parties adopt judicial philosophies inimical to their goals. 

And, concluding:

In sum, originalists backing Trump because of his Supreme Court list are trading their principles for a mess of pottage they might never get to eat. And even if Trump does serve up a helping or two, it will not be worth the awful long-term price.

Without expressing an opinion on the larger question, these comments seems doubtful on two narrower grounds.  First, it seems unfair to call the lists "a mess of pottage."  I think the general consensus is that the lists are quite strong.  On the new list, in addition to Senator Lee, there are two well respected court of appeals judges with originalist/textualist orientations -- Neil Gorsuch and Timothy Tymkovich.  I'm not familiar with all of the people named, but I think it would be hard for conservative/libertarian-leaning orignalists to be too disappointed with a pick from the lists.

There is also the question whether a President Trump would actually pick from his promised lists.  Professor Somin thinks not, but I'm inclined to disagree.  At least as to the first pick, it would be one of the new President's first actions; departing from the lists would constitute an open break with congressional Republicans and the Republican base, who at this point are heavily invested in getting someone who is at least quasi-originalist.  My guess is that Trump doesn't care enough about the Supreme Court to provoke a rupture over it.

Whether that justifies overlooking the other issues Professor Somin raise is, of course, a different question.


Jonathan Adler on the Emoluments Clause and Hillary Clinton
Michael Ramsey

At Volokh Conspiracy, Jonathan Adler: Is the Emoluments Clause a problem for Hillary Clinton?

The issue is whether the Clinton Foundation’s acceptance of gifts from foreign governments while Hillary Clinton served as secretary as state violated [the foreign emoluments clause] (assuming, of course, that gifts to the Foundation were, in some sense, also gifts to her). Additionally, it would seem, there would also be a question as to whether the Clinton Foundation could accept such gifts if Hillary Clinton is elected president.


The meaning and current application of the Emoluments Clause might not seem like much of an issue to you, but it is to two of my colleagues, Jonathan Entin and Erik Jensen [see here and here].

For background, Professor Adler also points to this exchange on the foreign emoluments clause at the National Constitution Center's Interactive Constitution, by  Seth Barrett Tillman and Zephyr Teachout.

Whether or not Clinton violated the clause (by having the Foundation accept the gifts), I'm surprised that people would think (as I guess some do) that such a violation would make her ineligible to the presidency.  The emoluments clause says nothing about the consequences of a violation, and the presidential eligibility clause says nothing about ineligibility due to prior violations of the Constitution.  The constitutional remedy for a violation would presumably be impeachment, if Congress chose to pursue it.


Josh Blackman and Ilya Somin Debate the Constitutionality of DAPA
Michael Ramsey

Josh Blackman: Debate on the Constitutionality of DAPA with Ilya Somin at the George Mason Federalist Society

From the post:

On 9/14/16, Ilya Somin and I [that is, Josh Blackman] debated the constitutionality of DAPA and the Take Care Clause at the George Mason Federalist Society Chapter. It was a special treat to verbally-joust with my former professor at my alma matter. As well, the event was moderated by my former International Law Professor, Jeremy Rabkin. The debate was replete with references to the Statue of Liberty (built at an immigration checkpoint), Donald Trump (no wall will be built), and of course Star Wars (Ilya is fond of comparing me to the wayward Anakin Skywalker; of course, he is Obi Wan).

The debate can be watched here.


Eric Segall on Justice Scalia's Legacy
Michael Ramsey

At Dorf on Law, Eric Segall: Justice Scalia 1 and Justice Scalia 2: A Modest Proposal.  From the introduction:

Jack Balkin of Yale Law School recently posted an essay about Justice Scalia's legacy which sets forth four criteria for ascertaining what a Justice's long term reputation is likely to be. Balkin argued we should look at 1) how useful the Justice is likely to be to future generations; 2) Is the Justice central to the political regime in which he lived; 3) Did the Justice take positions that are likely to end up on the "right side of history"; and 4) Did the Justice have promoters and "acolytes" willing to strongly defend his positions.

I think these criteria are fine for the task at hand, and so does my friend Ilya Somin, who responded to Balkin with his own post on the Volokh Conspiracy. 

And the key point:

One thing Scalia did do was talk the talk of originalism and textualism in his writings, his dissents, and his public speaking engagements. And, he did that very well. So, here is my proposal. From now on, I hope academics will refer to "Scalia 1" and "Scalia 2."  Scalia 1 was the witty academic, fun public speaker, and caustic dissenter who made detailed and interesting arguments in favor of judges leaving elected officials alone unless they violated the clear text or original meaning of the Constitution. Scalia 2 was the judge who voted to overturn the acts of those very same officials all the time through huge swaths of constitutional law even though neither the clear text nor the original meaning supported those decisions.

Whatever Scalia's legacy ends up being, if we don't keep the two Scalias straight, we are not doing justice to the actual man.


John McGinnis: The Continuity of the Fourteenth Amendment with the Founding
Michael Ramsey

At Liberty Law Blog, John McGinnis: The Continuity of the Fourteenth Amendment with the Founding.  From the introduction:

At a splendid conference at the University of the South last weekend, the most important underlying theme turned out to be the question of the continuity of the 14th Amendment with the rest of the constitution. Some scholars—indeed most– argued that the Reconstruction Amendments represented a second founding and a radical break with the past.

In contrast, I believe that there is substantial continuity between these two essential parts of our charter of liberty.  The 14th Amendment advanced and opened to all the commercial republic that was at the heart of the original Constitution. By their secession and actions leading up to succession, the South showed that it recognized that commercial dynamism and freedoms of the original founding would doom slavery. The Civil War just accelerated the realization of guarantees that flowed from principles implicit in the original Constitution. ...


Martin Lederman: History's Lessons for Wartime Military Tribunals
Michael Ramsey

Martin Lederman (Georgetown University Law Center) has posted If George Washington Did it, Does that Make it Constitutional?: History's Lessons for Wartime Military Tribunals (Georgetown Law Journal, forthcoming) on SSRN.  Here is the abstract:      

Congress has recently authorized military commissions to try individuals for domestic-law offenses—such as providing material support to terrorism, targeting U.S. forces, and conspiring to commit law-of-war offenses—in addition to offenses against the international laws of war. Such military tribunals lack the civilian jury and independent judge that Article III of the Constitution guarantees. The constitutionality of such an abrogation of Article III’s criminal-trial guarantees has been debated in many of the Nation’s wars, without clear resolution. The Article III question is now the subject of a potentially landmark case, al Bahlul v. United States, that the Supreme Court may consider as early as this Term.

In the rare cases where the Court has recognized exceptions to Article III’s criminal trial protections, it has almost invariably invoked functional and normative justifications; as this Article explains, however, the government has not offered any such justifications that would be sufficient to justify denial of the independent judge and jury that Article III guarantees when adjudicating domestic-law offenses, even in wartime. The government and judicial defenders of military tribunals thus must rely almost exclusively upon historical claims to defend the constitutionality of using commissions. This Article addresses one of the government’s central historical claims—namely, that the Constitution should be understood to have preserved, rather than to have modified, the federal government’s power to “carry[] on war as it had been carried on during the Revolution.” According to this argument, the Constitution was ratified against, and should be presumed not to have called into question, a purported “backdrop” of military criminal adjudication of offenses that were not violations of the international laws of war: court-martial proceedings, authorized by the Second Continental Congress and approved by General George Washington, against both spies and disloyal civilians who provided aid to the British.

The Article provides the first comprehensive account of those Revolutionary War precedents, how they were understood in the decades just after the Constitution was ratified, and the ways in which they have been invoked as authority, and mischaracterized, in later wars. It demonstrates that the age-old received wisdom about those precedents is almost entirely mistaken, and that they do not offer a basis for recognizing a new Article III exception for military adjudication of war-related domestic-law offenses.

The pre-constitutional history does, however, include one conspicuous aberration —a 1778 congressional resolution authorizing the trial by court-martial of civilians who provided a particular kind of aid to the British, which General Washington relied upon in 1780 as authority to convene a court-martial to try Joshua Hett Smith for assisting Benedict Arnold in the plot to capture West Point. In the Article, I argue that the Smith case—a striking deviation from Washington’s otherwise consistent conduct—should not be accorded much, if any, weight in interpreting Article III or in crafting exceptions to its criminal trial guarantees.

More broadly, this Article—together with another article that examines the government’s alternative reliance upon a series of military tribunal precedents in the Civil War and World War II (most importantly, the 1865 trial of the individuals accused of conspiring with John Wilkes Booth to kill Abraham Lincoln)—illustrates how a complex history can be misunderstood, and distorted, in the course of constitutional interpretation, particularly on questions of war powers.