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35 posts from December 2016


Seth Barrett Tillman on Foreign Emoluments and Scholarship
Michael Ramsey

At The New Reform Club, Seth Barrett Tillman: This Is What I Think And This Is What Other People Think Scholarship Looks Like (a definitive tour through the foreign emoluments debate, plus a slam on Laurence Tribe -- an excerpt can't capture it, but it's well worth a full read). 


More on President Trump and the Foreign Emoluments Clause
Rob Natelson

[Editor's note:  for this post we welcome returning guest blogger Rob Natelson of the Independence Institute, formerly Professor of Law at the University of Montana (and one of the nation's leading originalist scholars).]

            Michael Ramsey points out that commentators who claim Donald Trump will violate the so-called “Foreign Emoluments Clause” (actually the Foreign Emoluments Subclause) on the day of his inauguration make a number of unsupported assumptions about the meaning and scope of the provision. One assumption is that market-driven payments to Trump’s businesses are “emoluments” within the Constitution’s meaning of the term.

            This may be correct, but then again it may not. Founding-era records display at least six variations in the meaning of “emolument” in official discourse. The variations differed significantly in their scope. Following are the six, each exemplified with a quotation. All the quotations except the last are from the journals of the Continental and Confederation Congresses, where nearly all the framers and leading ratifiers had seen service. The last is from the records of the Constitutional Convention:

*          “Emolument” could mean any advantage or benefit whatsoever, as in “they should be permitted . . . to share in the blessings of peace, and the emoluments of victory and conquest.” This was the broadest usage, and the common dictionary definition.

*          “Emolument” could mean gain that was specifically pecuniary, including gain attached to a particular office and “private emolument”—that is, money from outside sources, such as trade: Examples: “that honor and emolument should naturally follow the fortune of those who have steered the vessel in the storm and brought her safely to port” and “The emoluments of the trade are not a compensation for the expense of donations.”

*          It could mean the compensation—pay and fringe benefits—attached to a particular office, as in “such as his rank entitles him to . . . and without pay or any other emolument whatever.”

*          It could mean the fringe benefits attached to a specific office but not the pay, as in “that his emoluments and one half of his pay be suspended” or “his request for pay cannot be complied with, and that all the emoluments he derives from the United States are to cease” or “he should be allowed the emoluments but not the pay.”

*          It might include items such as living supplies, extra compensation, and reimbursement for expenses, as in “The value of the additional emoluments of forage and subsistence would amount at the rate of thirty six dollars per month . . .”

*          Or it could exclude one or more of these items, as in “the Post-master general make such an allowance to the postmaster  . . . in addition to the emoluments of his office, as may be a reasonable compensation for his extra services” or “[Pennsylvania] President Franklin moved . . . that the executive should receive no salary, stipend or emolument for the devotion of his time to the public services, but that his expenses should be paid.”

            The first two definitions are broad enough to include outside commercial transactions. The phrase in the Foreign Emoluments Subclause “of any kind whatever” suggests that the term should be read this way.

            The other four variations are all tied to compensation for holding a particular office. Presumably they would include a salary from the French government to an American official for holding his office. But they would exclude payments made to President Washington if the British government happened to buy some of Mount Vernon’s exported tobacco, and they would exclude fair market rents paid at the Trump Tower.

            Arguing for one of the definitions tied to office is the fact that the Foreign Emoluments Subclause uses the word as one item in a series. Pointing in the same direction are the Constitution’s other two uses of “emoluments,” both of which are directed at compensation for holding office.

Andre LeDuc: Paradoxes of Positivism and Pragmatism in the Debate About Originalism
Michael Ramsey

Andre Leduc (independent) has posted Paradoxes of Positivism and Pragmatism in the Debate About Originalism (Ohio Northern University Law Review, Vol. 42, No. 2, 2016) on SSRN.  Here is the abstract:    

The long-running debate between originalism and competing accounts of the Constitution has unfolded with little attention to classic American jurisprudential concepts of legal positivism and legal pragmatism. In this syncretic article, I explore how these jurisprudential and theoretical strands fit together. I also explore several lessons we can learn about legal positivism and legal pragmatism and one critical lesson we can learn about the debate about originalism, if we contextualize the debate over originalism in that part of the space of reasons.

First, positivist and natural law originalisms are substantially similar in their substantive constitutional content. Originalism critics — both those who embrace positivism and those who embrace natural law — similarly share substantially congruent substantive criticisms of originalism. These parallels raise an important question about the significance of the distinction between legal positivism and natural law. The debate over originalism shows that the opposition between legal positivism and natural law may be less interesting or important than it is generally taken to be.

Second, the fundamental difference between originalism — which, in relevant part, defends a deontological account of constitutional law — and its consequentialist pragmatist critics provides another argument why the debate about originalism cannot be resolved on its own terms. I have previously argued that sophisticated philosophical premises make the originalism debate pathological rather than fruitful. But those arguments are quite highfalutin. This article provides another argument for the fruitlessness of the debate. Without common grounds between the protagonists as to the place of consequences in constitutional decision process, a resolution of the more particular issues in the debate over originalism cannot be hoped for or expected. But as we contextualize the originalism debate we may understand why it is a dead end in our constitutional theory and, more importantly, in our constitutional decision process. It is a dead end because the two sides in the debate have inconsistent theories of the nature of constitutional law. With a better understanding of how the debate fits in with other parts of our constitutional jurisprudence, we may leave the debate behind in our continuing constitutional discourse.


John McGinnis on Christmas and the Constitution
Michael Ramsey

At Liberty Law Blog, John McGinnis: The Christmas Holiday of 1870 and the Establishment Clause.  The main argument:

But instead of thinking what the current Establishment Clause doctrine means for the Christmas holiday, we can turn the question around and ask what the Christmas holiday means for the meaning of the Establishment Clause. Christmas was first declared a federal holiday in 1870. At that time Christmas was a predominantly religious holiday without the overwhelming commercial aspect of our contemporary world.

As far I can tell, there was no substantial objection to the holiday on the basis of the Establishment Clause. The lack of objection to giving official status to a predominantly religious holiday suggests that the meaning then attributed to the Establishment Clause does not comport with the so-called “endorsement test” employed today to test for violations of the Clause. The government proclaimed a Christmas holiday, although that proclamation, like the forbidden religious Christmas display today, may give the appearance of endorsing a religion.

Recognizing the constitutionality of religious holidays, however, is consistent with the so-called “coercion test” for the Establishment Clause that holds that only coercive support of religion, like forcing citizens to pay taxes to a church, triggers its prohibition [Ed.: As Justice Scalia argued]. A holiday, even one which is predominantly religious, is not coercive in this respect. Even if it suspends commercial obligations till the next day, as does the bank holiday created by the 1870 law, citizens will not be made substantially worse off by a brief delay that is applied equally to all.

And further:

[S]ome constitutional theorists might object to this type of evidence entirely, because it concerns an “an expected application” of a constitutional principle rather a parsing of the language of the principle itself. Mike Rappaport and I have argued that such a dichotomy is false. The meaning of  moral and legal principles can sometimes be best be pinned down by looking at their applications.

I especially agree with this last point.  The Constitution's commands are formed by its text, not by its expected applications.  But expected applications can be important evidence of meaning.  In this example, "establishment of religion" doesn't have an meaning in the abstract; for an originalist, its meaning is whatever the phrase meant at the time it was enacted.  How people expected the phrase to be applied to concrete circumstances (e.g., did they think declaring a Christmas holiday was an "establishment"?) is good evidence of what they thought an "establishment" was.   (And there is no relevant meaning of "establishment" apart from what they thought it meant).

True, they could have been wrong (or, as likely, they could have failed to live up to their own aspirations).  But demonstrating that is something of an uphill battle, requiring evidence from the relevant period of a contrary meaning.   I would say that the expected application, if directly on point, puts the burden of proof on the side that would find a contrary meaning.


Why Does the Unconstitutionality of Prohibiting Faithless Electors Seem Problematic?
Mike Rappaport

In my last post, I argued that the original meaning forbids states from passing laws that prohibit faithless voting by the electoral college.  But if the original meaning imposes this prohibition, then why does such faithless voting seem problematic even to an originalist like me?

One problem is that the practice in this country, for a very long time, has involved electoral college voters being understood as voting for the pledged candidate.  But the mere fact of practice cannot be sufficient.  There are plenty of unconstitutional practices that I would happily see eliminated.

A second problem is that this practice has been part of the rules of the competitive game of elections.  The two parties compete according to existing rules.  When those rules appear to be changed in midstream to the advantage of one or the other party, it seems much more problematic than in other situations.

But perhaps the most significant reason I am troubled by following the original meaning in this area is that the electors’ names are not on the ballot.  Assume that the electoral college worked the way that the original meaning seems to suggest it should: independent electors cannot be forced to vote for a particular candidate but instead can exercise independent judgment.  If that were the case, then the people we were electing would really matter.  We should know who they are.  We should be choosing between voting for John Doe, who is a scientist, and Sally Smith, who is a lawyer.  But we do not.  The only name on the ballot is actually that of the candidate the elector is pledged for.  Thus, it is natural to assume that we are actually voting for the candidate.  If the elector does not vote for the pledged candidate, it appears like the rug was pulled out from under us.

One might wonder whether this arrangement is constitutional.  After all, would it really be constitutional if a state sought to hold a congressional election but did not put the names on the ballot?  While such an election would certainly violate democratic norms, it probably would not be unconstitutional.  The Constitution merely states that “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors ....”  Presumably, a ballot without the electors’ names is one such way.  The best argument on the other side is that a nameless ballot somehow violates the Republican Form of Government Clause, but it is likely (although not certain) that the names of the pledged candidates on the ballot is sufficient to avoid violating the Clause.

To be clear, I am not arguing here that we should not follow the original meaning in this area.  I believe we should.  I just believe that it would be best if that original meaning were announced ahead of time, so that a change in the rules did not interfere with a presidential election.

Christopher Yoo on Presidential Signing Statements
Michael Ramsey

Christopher S. Yoo (University of Pennsylvania Law School) has posted Presidential Signing Statements: A New Perspective (University of Pennsylvania Law Review, Vol. 164, p. 1801, 2016) on SSRN.  Here is the abstract:     

This Article offers a new perspective on Presidents’ use of signing statements. Following the dichotomy reflected in the literature, I will analyze signing statements raising constitutional objections and those offering interpretive guidance for ambiguous provisions separately. With respect to constitutional interpretation of statutes by the executive branch, Presidents have long asserted the authority and obligation to consider constitutionality when executing statutes. The widespread acceptance of the President’s power to construe statutes to avoid constitutional problems and to refuse to defend the constitutionality of or to enforce statutes in appropriate cases confirms the propriety of this conclusion. If these fairly uncontroversial forms of executive review are permissible, the arguments against signing statements amount to nothing more than objections to the form in which constitutional review is exercised. Indeed, when the objections are constitutional in nature, the signing statement does little work itself, as it is the Constitution itself rather than the signing statement that invalidates the statute, and there are clear benefits to announcing the constitutional interpretation that will be applied to the statute at the time of enactment.


Robert Reinstein: The Limits of Congressional Power
Michael Ramsey

Robert Reinstein (Temple University - James E. Beasley School of Law) has posted The Limits of Congressional Power (Temple Law Review, Vol. 89, No. 1, 2016) on SSRN.  Here is the abstract:  

This article explores the outer limits of congressional power. The debate over those limits began in 1791 when James Madison challenged the constitutionality of Alexander Hamilton’s Bank of the United States in the First Congress and has continued through the present. According to Madison, the Necessary and Proper Clause was constrained by three doctrines: implied powers must be “direct and incidental” to express powers; they could not be used to invert constitutional ends and means; and powers of exceptional importance could not be derived from implication. Although Madison’s challenges to the Bank failed in the First Congress and in McCulloch v. Maryland, his limiting doctrines have recently been resurrected in an impressive body of scholarship and adopted by several Supreme Court Justices. In addition, eminent scholars have meticulously analyzed McCulloch and argue that this foundational opinion, conventionally regarded as affording great discretion to Congress in the use of implied powers, is actually a moderate and defensive validation of federal power.

This article is in three parts. The first part examines the Bank debate and other legislation enacted by the First Congress. This historical review demonstrates a mainstream Federalist constitutional philosophy that broadly construed and applied the express and implied powers of Congress. That philosophy was synthesized in Hamilton’s influential opinion on the constitutionality of the Bank and became the blueprint for McCulloch. This material contains arguments that greatly influenced the Marshall Court but tend to be overlooked in modern scholarship.

The second part of this article presents an extensive analysis of McCulloch. The early portions of the opinion are connected to the pressing constitutional issues of the time. The opinion’s determinations of the breadth of Congress’s implied powers and the constitutionality of the Bank, when related back to the Federalist blueprint, establishes McCulloch as an aggressive, albeit not unlimited, endorsement of national power. The Bank was upheld not only as a means of carrying out specific enumerated powers but also as Congress’s agent in implementing an aggregated national fiscal power. This part of the article also shows how each of Madison’ limiting principles was rejected and explains why the degree of necessity is a political question, what Marshall meant by the “spirit” of the Constitution, why legislative and judicial approaches to the relationship of means and ends can be contradictory, whether McCulloch requires the application of the rational basis test, and what the limits of congressional power are. 

Part three of the article returns to Madison’s theory that the implied powers of Congress are limited by the degree of their importance. This part reflects Edmund Randolph’s forgotten warning against overreliance on intratextualism as a method of constitutional construction. It then shows that the intratextualist methodology used by Madison and modern scholars does not accurately account for the enumeration of legislative powers in Article I. This part concludes by offering an alternative theory for the construction of Article I that explains why seemingly incidental powers are included among the express powers, how the enumerations serve the separation of powers, how certain express powers are actually limitations on powers that could be derived through implication (including, potentially, the Necessary and Proper Clause), and how the constitutionality of the implied powers of Congress is not inversely proportional to their importance.


More on President Trump and the Foreign Emoluments Clause
Michael Ramsey

In The Guardian, Laurence Tribe argues: Donald Trump will violate the US constitution on inauguration day.  Key claim: 

The US constitution flatly prohibits any “Person holding any Office of Profit or Trust under [the United States]” from accepting “any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State”.

Known as the emoluments clause, this provision was designed on the theory that a federal officeholder who receives something of value from a foreign power can be tempted to compromise what the constitution insists be his exclusive loyalty: the best interest of the United States. The clause applies to the president and covers even ordinary, fair market value transactions with foreign states and their agents that result in any profit or benefit. That a hostile government has gotten its money’s worth from our president is obviously no defense to a charge that he has abused his office.

Maybe.  But it seems to me that all this essay does (at least for an originalist) is to set up the issues, not to resolve them.  Professor Tribe makes two key steps: (1) the clause applies to the President, and (2) the clause applies to "ordinary, fair market value transactions."  He offers no argument at all on (1), and his argument on (2) -- that apparently as a matter of common sense, doing business in an arms' length manner isn't a defense to a charge of abuse of office -- seems less obvious than he thinks it is.

As to point (1), as readers of this blog know, Seth Barrett Tillman has a strong argument that the clause does not apply to the President, based on text and early post-ratification practice.  If you think he is wrong, you need to explain why.  As to point (2), as I have argued earlier, the modern meaning of emoluments appears not to refer to ordinary transactions, but only to salaries and benefits for employment.  There's evidence that it had a broader meaning in the founding era, but this is the sort of thing that must be demonstrated by evidence of founding-era usage and assumptions, not merely declared on the basis of what might appear to be modern common sense.

On a related point, Professor Tribe continues for another 13 paragraphs (including a discussion of congressional remedies) without considering the proposition (expressly in the Constitution's text) that Congress can consent to any potential emolument Trump might receive.  How can that consent be shown?  As a formalist (and a strict reader of Article I, Section 7), I'm inclined to say that Congress must pass a formal resolution of approval.  But many people (perhaps including Professor Tribe) are not formalists nor strict readers of Article I, Section 7.  For example, it's been argued that Congress can acquiesce in the President's exercise of certain powers by failing to object (Dames & Moore v. Regan) or through appropriations (presidential war-initiation).  If Congress does not object to Trump's business dealings and works with Trump on the understanding that he is acting constitutionally in taking office without divesting his businesses, why isn't that enough to show Congress' consent?  It seems necessary at least to consider this point (and to consider whether, in addressing other constitutional controversies, one has taken the position that Congress can consent informally).

Finally, if Congress wanted to signal some interest in asserting its constitutional prerogatives without taking much risk, what about this:  it should pass a resolution of consent to the Trump family's continued business dealings, provided that Trump does not play an active role in the businesses and that dealings are conducted on an arms' length basis.  Since Trump has said that's what he intends to do, he would not have much basis to object.

(Thanks to Michael Perry for the pointer).

UPDATE:  At the New Reform Club,  Seth Barrett Tillman has this post on the other emoluments clause: The Presidential Compensation Clause & Trump’s “No New Deals” Motto.  

Also, Professor Tillman points out this 1974 memo in which future-Justice Scalia (as assistant attorney general) concludes: “[W]hen the word ‘officer’ is used in the Constitution, it invariably refers to someone other than the President or Vice President.”


Evan Bernick on Constitutional Construction
Michael Ramsey

At the Federalist Society Blog, Evan Bernick (Institute for Justice): Deciding Unclear Originalist Cases: Towards Good-Faith Constitutional Construction.  From the introduction:

Interpreting a centuries-old document and applying it to factual circumstances unknown and perhaps inconceivable to those who ratified it into law is not an easy task. As Professor Mike Rappaport recently observed, many of the provisions of our Constitution “are simply not clear, unless one has done . . . extensive historical research.” Further, even those who maintain—as originalists do—that (1) the meaning of the Constitution’s text was fixed when each provision was framed and ratified; and (2) judges must decide cases in accordance with that fixed meaning, must acknowledge that fallible, busy judges may be unable to arrive at a single determinate answer concerning the meaning of a particular clause or how that clause applies to a particular set of facts. What are judges to do in such cases?

In recent years, many (though not all) originalists have embraced the use of constitutional constructions—implementing doctrines that are designed to give legal effect to the Constitution in settings where interpretation of the text does not yield a single answer. Originalists who accept the distinction between interpretation (ascertaining the meaning of the text) and construction (giving that text legal effect) generally agree that judges cannot develop rules of construction that contradict the Constitution’s text—but no systematic effort has yet been made to establish the contours of permissible judicial activity within a “construction zone” that might be quite vast, depending upon how many constitutional questions cannot be resolved by interpreting the text.

And from further on:

As Professor Randy Barnett and I will argue in a forthcoming paper, judges who draw their power from “this Constitution” and publicly promise to adhere to it are legally bound to act consistently with not only the letter of the Constitution—its text—but its spirit—the function of its particular provisions, as ascertained by study of the publicly accessible context in which those provisions were framed and ratified. They are duty-bound to exercise the discretionary power delegated to them in good faith—to seek to give effect to the law of the land rather than seeking to impose their own extralegal beliefs or desires. Where the letter of the law does not yield a clear answer, they must have recourse to the spirit of the law in formulating rules of construction.

(Thanks to Mark Pulliam, who adds "Sounds like trouble.")

Also I don't think  the essay's ensuing example is illustrative.  Bernick points to the recent D.C. Circuit decision in PHH Corp. v. Consumer Financial Protection Bureau, which held that the Consumer Financial Protection Bureau (CFPB) violates Article II because its director is not removable at will by the President:

Judge Kavanaugh recognized that Humphreys Executor [finding a multi-member independent agency to be constitutional] foreclosed a conclusion that the structure of the CFPB violated Article II simply because the CFPB is an independent agency with consolidated powers and is not directly accountable to the President. He responded by formulating a construction, informed by the spirit of the clause he was giving effect to: Independent agencies may not be headed by a single person.

I would not call this a construction based on the Constitution's spirit; I would call it an application of the original meaning plus a very narrow (but arguably justified) reading of Humphrey's Executor.

RELATED:  At Liberty Law Blog, Greg Weiner: Crouching Congress, Hidden Judges (commenting on Randy Barnett on Mark Tushnet, noted here).  Among other highlights: 

Yet the judicial Minotaur does not differ from other variants of the all-consuming creature. Judicial power, like other kinds of power, is liable to abuse. Like all kinds, judicial power, having been forged for one hand to brandish, will ultimately be wielded by another. Like all power, judicial power, overly centralized or imposed, saps initiative and induces lassitude. 


The Unconstitutionality of Prohibiting Faithless Electors
Mike Rappaport

Recently, there has been a bit of an originalist debate about the issue of the “faithless elector.”  David Post argues that “the original intent of the Constitution, supported by its text and overall structure, not only permits but also ‘requires’ presidential electors to exercise ‘discretion and independent judgment’ in casting their ballots.  Mike Ramsey responds that the original meaning of the constitutional text – both the original Constitution and the 12th Amendment – allows the states to select electors “based on the electors' advance pledge to vote for a particular candidate.  There is no textual duty to exercise independent judgment.”

I tend to agree here with Mike and commend his post to all readers.  The constitutional text, as Mike describes it, “says two relevant things: (a) ‘Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors ...’ and (b) ‘The electors shall meet in their respective states, and vote by ballot for President and Vice President...’”  Although the text is not crystal clear, there does not appear to be a prohibition on the states deciding only to select electors who have pledged to vote for a particular candidate.

That said, I want to move on to a related issue that is not addressed in the Post/Ramsey exchange.  Is it constitutional for a state to require that the elector actually vote for the pledged candidate?  Many states have such laws.  While one might extend Ramsey’s argument to cover this situation, I don’t think it can be extended that far.  And therefore I tentatively conclude that the original meaning forbids such prohibitions.

What is the difference here?  The Constitution allows the state to appoint “in such Manner as the Legislature thereof may direct” the electors.  The key is drawing a distinction between appointing the electors and controlling the electors’ behavior once they have been selected.  The Constitution appears to draw this distinction, allowing the states to appoint the electors, but not appearing to give the state any authority over how the electors vote, stating only that the electors shall meet in their states to cast their ballots.

A law that says that only electors who are pledged to a candidate may run for office appears to involve the appointment method of the electors.  The pledge is a statement made prior to the selection of the electors and thus part of the appointment method.  By contrast, a law that requires the electors to vote for the pledged candidate crosses the line and purports to regulate how the electors vote.

Here I believe the type of evidence that Post and others rely upon (such as Alexander Hamilton’s statement from the Federalist Papers) is relevant.  That evidence supports my reading of the text.  One might doubt my reading of the text if one believed that the purpose of the provision was to allow the states to necessarily control the electors’ votes.  But that evidence suggests that was not necessarily the purpose, since it was certainly contemplated that independent judgment would occur.