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41 posts from January 2017


More on Prosecutorial Discretion and President Trump's Obamacare Order
Michael Ramsey

In a previous post, I asked but did not answer the question whether President Trump's executive order on Obamacare, coupled with an aggressive application of prosecutorial discretion, could allow him to effectively suspend Obamacare by presidential authority alone.  Here is my answer.

The order states: 

To the maximum extent permitted by law, the Secretary of Health and Human Services [and other executive officials] ... shall exercise all authority and discretion available to them to waive, defer, grant exemptions from, or delay the implementation of any provision or requirement of the Act that would impose a fiscal burden on any State or a cost, fee, tax, penalty or regulatory burden on individuals, families, healthcare providers, health insurers, patients, recipients of healthcare services, purchasers of health insurance, or makers of medical devices, products, or medications.

As I noted, the key question is: what does "the maximum extent permitted by law" mean?  Let's leave aside the question of what statutory authority may exist.  My question is what constitutional authority exists, apart from what's granted by the statute.

My thinking on this issue evolved somewhat during the debate over President Obama's partial nonenforcement of the immigration laws.  Though initially skeptical, I became persuaded that the President has fairly broad constitutional power of prosecutorial discretion, at least absent a statute specifically constraining it.  However, as this post indicates, I concluded that the power is limited in its effect by being strictly a power to decline to prosecute.  It does not allow the President to suspend or alter the actual law in any respect, including by formally relieving individuals of their obligation to comply.  All the President can do is refrain from acting.

On this ground I concluded that President Obama's immigration policy was apparently not authorized by the President's constitutional power because it seemed to do more than merely decline to enforce; it constituted a change in the law by changing the formal legal status of certain categories of immigrants.  (The policy might nonetheless have been authorized by statute, as discussed further below).

For the same reason, I think the Constitution does not give President Trump independent power to do what he calls for in his executive order.  I do think (consistent with the discussion above) that he can decline to prosecute violations of the statue's requirements, and indeed I think he likely can adopt an official policy of nonenforcement.  However, the executive order calls on executive agencies to "waive, defer, grant exemptions from, or delay the implementation of" requirements of the Affordable Care Act.  Although there might be some ambiguity, all of these verbs seem to me to call for changes in formal legal status: a requirement that is "waive[d]" is not legally binding; a requirement that is "defer[red]" is not formally in effect; where an "exemption" is "grant[ed]" the person receiving the exemption is no longer covered by the law; when a requirement's implementation is "delay[ed]" it does not take effect.  These actions are all directed at the content of legal obligations, not just the consequences of violating legal obligations.  As a result, they do not come within the power of prosecutorial discretion.

As with Obama's immigration policy, Trump's health care policy might rest on statutory authority -- that is, the statute might allow him to waive, defer, grant exemptions and delay implementation.  That is a separate question, not properly understood as a question of prosecutorial discretion or constitutional executive power.

CLARIFICATION:  In my prior post, I wrote -- perhaps imprecisely -- that "during the Obama administration there was plenty of talk that the President's non-enforcement discretion allows basically unlimited nonenforcement."  [Ed.: note annoyingly inconsistent use/non-use of hyphens].  A reader objected to the implication that the Obama administration itself claimed basically unlimited nonenforcement power from the Constitution.  I did not intend that implication: I should have said, instead "while Obama was President" people made this claim.    In defending the immigration policy (and, so far as I recall, nonenforcement of parts of the health care law) the administration relied on statutory authority, not on constitutional nonenforcement discretion, and did not claim it was basically unlimited.  (The same goes for the administration's most sophisticated academic defenders, see for example here and here).  However, it is surely true that some commentators during that time claimed what amounted to effectively unlimited nonenforcment discretion for the President (see authorities cited in this post).  That was what I had in mind.


More on Radical and Moderate Originalism
Mike Rappaport

My last post distinguished between radical and moderate versions of originalism. This post discusses a few more aspects of the distinction and assesses my own views as radical or moderate.

First, one sees the original and moderate versions assumed in debates about originalism. Some people claim that originalism would require radical changes in existing doctrine, and use that to criticize originalism. Other people defend originalism by denying it would be radical, in effect saying it would only be moderate.

By contrast, some radical originalists view their radical interpretation as morally beneficial because it conforms with their political philosophies. Others then attempt to criticize those radicals by claiming their radical interpretation of the Constitution is mistaken.

My own views about the Constitution’s original meaning is something of a mixture of the radical and moderate views. In general, I have an intellectual proclivity in different areas to attempt to synthesize different positions to reach a middle of the road view. (For example, I have something of an intermediate view between consequentialism and deontology as to moral philosophy.) But that is not what occurs as to my originalism. I just look at different constitutional issues and come to different conclusions. Thus, I find the radical interpretation of one clause to be persuasive and the moderate interpretation of another clause to be compelling. I think of it as honest, while others might see it as incoherent.

In general, I tend to have a strong view of federalism, believing that there is a very limited commerce power, no spending power, and a relatively limited necessary and proper power. I also have a pretty strict understanding of the separation of powers. My views on economic rights have changed over the years and tend to be middle of the road for originalists.

When I was confident that the Fourteenth Amendment incorporated the Bill of Rights, I believed the Fifth Amendment Taking Clause did not restrict regulation (only physical invasions), but the Fourteenth Amendment Taking Clause that was incorporated might have extended to regulations. These days, I have a more complicated view of incorporation, which may or may not implicate that result.

As to the Privileges or Immunities Clause, I tend to believe it protects a wide array of substantive rights, but those rights are limited by the police power. And those rights might or might not be dynamic—that is, those constitutional rights might change as the rights recognized in the different states change over time.

Further, I tend to believe that the freedom of speech and press provisions are wide but shallow—that is, the rights extend to a whole variety of areas, such as commercial speech, but do not provide as strong protection to political speech as modern doctrine provides.

Finally, the rigor of my interpretation of the original meaning is moderated by a doctrine of precedent. While I favor a more limited version of precedent than the one the Supreme Court purports to apply, it is still stronger than the no precedent version of many radicals.

Overall, then, I end up with something of an intermediate view of originalism, combining elements of both the radical and moderate versions.

Laura Donohue: The Original Fourth Amendment
Michael Ramsey

In the current issue of the University of Chicago Law Review, Laura K. Donohue (Georgetown): The Original Fourth Amendment (83 U. Chi. L. Rev. 1181 (2016)).   Here is the abstract:

The meaning of the rights enshrined in the Constitution provides a critical baseline for understanding the limits of government action—perhaps nowhere more so than in regard to the Fourth Amendment. At the time it was adopted, the Fourth Amendment prohibited the government from entering into any home, warehouse, or place of business against the owner’s wishes to search for or to seize persons, papers, or effects, absent a specific warrant. Consistent with English common law, the notable exception was when law enforcement or citizens were pursuing a known felon. Outside of such circumstances, search and seizure required government officials to approach a magistrate and, under oath, to provide evidence of the suspected offense and to particularly describe the place to be searched and persons or things to be seized. Scholars’ insistence that the Fourth Amendment does not entail a general protection against government entry into the home without a warrant does more than just fail to appreciate the context. It contradicts the meaning of the text itself, which carefully lays out the conditions that must be met before the government may intrude. Reclaiming this meaning is essential for understanding the scope of the original Fourth Amendment and for ensuring a doctrine that reflects fidelity to the founding principles.

I like this project so much I am including the table of contents as well:



A.  English Cases Prohibiting General Warrants 

1.  Entick v Carrington (1765)

2.  Wilkes v Wood (1763)

3.  Leach v Money (1765)

B.  English Legal Treatises’ Condemnation of General Warrants 

C.  Keeping the King’s Peace: The Known-Felon Exception

1.  Public safety: powers of arrest and search

2.  The hue and cry

D.  Summary


A.  Paxton’s Case: The Child Independence

B.  Influence of English Law 

C.  State Prohibitions 

1.  General warrants rejected

2.  “Unreasonable” as violating the reason of the common law

3.  The warrant requirement


A.  Ratification and Reservation 

B.  Adopting the Fourth Amendment

1.  Drafting the text

2.  Judicial affirmation

C.  The Rise and Fall of the “Mere Evidence” Rule 




Is the Rational Basis Test Unconstitutional?
Michael Ramsey

The Georgetown Journal of Law and Public Policy has a great symposium "Is the Rational Basis Test Unconstitutional?' (nominally the Summer 2016 issue but I only recently received a copy).  It includes contributions from Evan Bernick (Institute for Justice), Randy Barnett (Georgetown), Dana Berliner (Institute for Justice), Erwin Chemerinsky (UCI), Richard Epstein (NYU), Robert Farrell (Quinnipiac), Tara Leigh Grove (William and Mary), Jeffrey Jackson (Washburn), John McGinnis (Northwestern), Clark Neily (Institute for Justice) and Suzanna Sherry (Vanderbilt).

A number of the contributions have a strong originalist orientations.  In particular, John McGinnis's essay "Reforming Constitutional Review of State Economic Legislation" gives an originalist account of the review of economic legislation, as described in his introduction (footnotes omitted):

For the first time in decades, lower appellate courts have struck down economic legislation as lacking a rational basis.  These cases likely reflect a growing concern that many occupational licensing regimes have become a barrier to social and economic inclusion. This view is not limited to the right side of the political spectrum.  The combination of judicial decisions and policy concerns prompts anew the question of whether the Supreme Court's very lenient review of economic legislation is sound as a constitutional matter.

This short essay unpacks that issue because it is not a single question but many. Such unpacking also allows us to get closer to an originalist view of the proper standard of review, because “rational basis”--the term now used to describe review of economic legislation--does not appear in the Constitution. The phrase thus cannot be the starting point of an originalist analysis.

This essay suggests that the original meaning of the Fourteenth Amendment likely requires more searching judicial review of economic legislation, particularly occupational licensing, than the post-New Deal consensus provides. The Amendment not only prohibits legislation with solely a protectionist rationale but also requires legislation that substantially harms economic prospects to have a bona fide police power rationale, such as one advancing health or safety.

The appropriate scope of judicial review in this area involves both procedural and substantive aspects. The procedural aspect of judicial review focuses on such issues as who has the burden of proving that legislation has a police power rationale and the somewhat related question of whether courts can hypothesize reasons for the legislation that the legislature did not put forward. The substantive question focuses on what provision in the Constitution authorizes invalidation of economic legislation and what standard of review it provides.

The procedural issues have clear answers that derive from the nature of judicial review and the structure of litigation. Briefly, those challenging a regulation must shoulder the burden of showing that the regulation fails to meet the constitutional standard because judicial review itself requires the judges to come to a clear view that legislation is unconstitutional before invalidating it. But this presumption is a relatively weak one. Its nature is jurisprudential and not based on the claim that the legislature is better at finding social facts than the courts. Thus, if the courts can use their traditional methods for finding facts and come to a firm conclusion that the legislation is not supported by the rationale and/or factual predicate that the Constitution requires, they should invalidate the legislation.

This presumption is also consistent with putting the burden of production on the government in the course of litigation because the government likely has better access to the justification and relevant evidence. Once the production burden is satisfied, the burden shifts to the plaintiff. The judiciary, however, is not confined to upholding legislation on the basis of the rationale or on the evidence that a legislature provides so long as the government in litigation satisfies the burden of production. The legislature has no obligation to provide either rationale or evidence, just as it has no obligation to provide reasons for its constitutional interpretations.

A full assessment of the appropriate stringency for review of economic legislation requires a more substantial inquiry than the space allotted here. But it seems very likely that the original meaning of the Fourteenth Amendment protects economic rights, such as the right to pursue an occupation. The more difficult question is to define the substantive standard of review for economic legislation that does offer a police power justification. And here the standard is probably relatively weak. Courts can and should invalidate legislation where the police power justification is nonexistent or pretextual or when it is counterproductive, as when a safety regulation makes for less safety.

But the greater practical problem is legislation that does have some justification but where the benefits are much smaller than the costs, costs such as interference with people's capacity to choose their professions and the consumer surplus created by easier entry. The Fourteenth Amendment does not enact cost-benefit analysis. Thus, while the rational basis test should be revised if we are to be true to the Constitution, the direct effects of such reform may be modest.

To be sure, recalibrating what has been called rational basis review can also have expressive effects beyond the direct benefits of invalidating unconstitutional legislation. The new standard may well move legislatures to consider more seriously the actual economic effects of their economic regulation. But there are other more promising avenues to create more coherent economic regulation of occupational licensing and other economic legislation at the state or local level. These include the more vigorous use of federal antitrust law and state and local implementation of cost-benefit analysis on the model of the federal government.

I have noted draft versions of a couple of these papers as posted on SSRN.  Unfortunately the whole symposium is not available online -- indeed, the Journal's website does not even currently show the table of contents of the symposium (!), much less provide pdf versions of the articles.  The Journal is a great source for originalist publications (I've published there in the past) -- but it needs to join the twenty-first century.  Most law reviews are making their materials available on line simultaneously or near-simultaneously with print publication.  Especially in the case of symposia, it's impact on the scholarly conversation is greatly limited when they don't.  (I do appreciate them sending me a print copy though).


Josh Blackman on President Trump's Obamacare Executive Order
Michael Ramsey

At Josh Blackman's Blog: Undone: With His First Executive Order, President Trump Begins The Repeal of Obamacare.  An extensive discussion, including this observation:

 On cue, ardent defenders of President Obama’s executive actions have now discovered the separation of powers.

The post includes the full text of the order.  The key passage from the executive order is this one (Section 2):

To the maximum extent permitted by law, the Secretary of Health and Human Services [and other executive officials] ... shall exercise all authority and discretion available to them to waive, defer, grant exemptions from, or delay the implementation of any provision or requirement of the Act that would impose a fiscal burden on any State or a cost, fee, tax, penalty or regulatory burden on individuals, families, healthcare providers, health insurers, patients, recipients of healthcare services, purchasers of health insurance, or makers of medical devices, products, or medications.

As Professor Blackman observes, much depends on what "the maximum extent permitted by law" means -- but during the Obama administration there was plenty of talk that the President's non-enforcement discretion allows basically unlimited nonenforcement.  The post notes various commentators arguing about the extent that the Affordable Care Act grants statutory discretion.  But doesn't the President also have constitutional nonenforcement discretion?  And doesn't that qualify also as the "extent permitted by law"?

Seth Barrett Tillman on Foreign Emoluments (Podcast)
Michael Ramsey

From Opening Arguments, a two part podcast with Seth Barrett Tillman discussing the foreign emoluments clause and President Trump.  Part I is here; Part 2 is here

Related: Also featuring Professor Tillman on foreign emoluments, this segment from Many Things Considered.


Ilya Somin on President Obama's Constitutional Legacy
Michael Ramsey

At Volokh Conspiracy, Ilya Somin: Obama’s constitutional legacy.  From the introduction:

Obama deserves credit for helping to push the struggle for same-sex marriage to a successful conclusion, for appointing some highly capable judges (despite flaws in their judicial philosophy), and for causing the Supreme Court to establish some valuable precedents protecting federalism, property rights, and religious freedom (albeit, often unintentionally). On the other hand, we may well have occasion to rue his overly expansive approach to executive power, particularly when it comes to initiating wars without congressional authorization.


Perhaps the most important constitutional legacy of the Obama administration is one that does not get nearly as much attention as it deserves: by starting two wars without the constitutionally required congressional authorization, Obama established dangerous precedents that can be used by Donald Trump and other potentially unscrupulous successors. In the case of both the 2011 war against Libya and the still-ongoing war against ISIS, Obama relied on flimsy legal pretexts to to initiate wars.

Although Professor Somin and I generally agree on war powers, I have a somewhat more optimistic view of President Obama's war powers legacy -- see here: Constitutional War Initiation and the Obama Presidency.



Radical and Moderate Originalism
Mike Rappaport

Here I want to draw a distinction between two types of originalism: between a radical originalism and a more moderate originalism.

The radical originalist believes that the Constitution’s original meaning establishes a regime that is extremely different from the current legal regime.  The easiest way to get a radical view is through a strong federalism.  If one believes that the Commerce Clause is narrow, that there is no Spending Power, that the Necessary and Proper Clause is very limited, then one can generate a regime that holds Social Security to be unconstitutional, that places significant limits on paper money, and that treats a large number of federal programs as unconstitutional.  Similarly, if one believes there are strong limits on the states through the 14th Amendment that extend to economic rights, then a significant number of state regulations would be unconstitutional as well.

The moderate originalist, by contrast, believes that the Constitution’s original meaning establishes a regime that is different, but not radically, from the regime under which we live.  In the area of federalism, one can get to this result by believing in strong national power.  In the area of state regulation, one can believe that the 14th Amendment permits incorporation, but otherwise merely prohibits caste legislation.

One sees the differences between these approaches in different theories of originalism.  The radical approach can be easily justified under a popular sovereignty approach to originalism or a variety of other justifications, including the supermajoritarian approach.  This approach looks back to earlier decisions – at the Founding or during Reconstruction – that might differ significantly from our modern institutions.

The moderate approach might seem to be most congenial to the positivist justification of originalism – the view that originalism is our law.  Clearly, if our existing law is binding, and if it is originalist, then there is little divergence between originalism and the existing law.

But this analysis is too simple.  Positivist originalist often have arguments that they employ to uncouple the existing decisions from our law.  For example, Stephen Sachs argues that our law today might adopt certain higher order norms, but then mistakenly apply those norms to reach mistaken decisions.  Even though those decisions are mistaken, our law should still be understood as comprising the higher order norms rather than the mistaken decisions.  Thus, if the higher norms include originalism, then the fact that nonoriginalist decisions are reached does not necessarily mean that nonoriginalism is the law.  For more on this, see here.

Another way that a moderate originalism can be justified is through precedent and related doctrines, such as liquidation.  Under this view, even if the decisions were mistaken when rendered, they can be followed today based on precedent.

But however one reaches the moderate or radical approaches, these two different approaches really capture something very important about how we think about originalism and how it operates.  The radical originalists are something of revolutionaries, believing that our existing institutions are problematic and need to be replaced.  The moderate originalists, by contrast, are much more accepting of our modern institutions, even though they generally seek certain changes.

Nelson v. Colorado and Some Tricky Aspects of an Easy Case
Michael Ramsey

Nelson v. Colorado, argued to the Supreme Court last week, seems like it should be an easy case.  In brief oversimplification: in Colorado, certain criminal offenses require payment of money (fines, costs, etc.) to the state upon conviction -- but if the conviction is overturned on appeal and the charges are ultimately dropped, the money is not automatically refunded.  Instead, to get a refund, former defendants must bring a separate claim in which they must show that they were actually innocent of the charge.  Petitioners in this case are former defendants facing that situation.

That looks like a deprivation of property without due process -- the state keeps the money, even without a valid conviction, unless the former defendant can make a showing much more difficult than simply defending against a criminal charge.  Further, Nelson's attorney -- UCLA law professor Stuart Banner, channeling Justice Scalia -- demonstrated without much counterargument that this sort of procedure doesn't have any traditional foundation in Anglo-American law (and only exists in Colorado).

But I have been studying Justice Scalia's opinions closely for an article I am writing, and I think it's a little more complicated.  Scalia's view of the correct originalist approach to individual rights, including due process, depended on whether the challenged government action had a traditional foundation.  If it did, he thought that was essentially conclusive as to its constitutionality (unless the constitutional text was unambiguous).  If the challenged procedure did not have a traditional foundation, then his course was less clear.  Sometimes he thought he lack of traditional foundation was very strong evidence against the practice's constitutionality, but other times he was less sure.  He pointed out that the mere fact that a practice wasn't employed at the time the Constitution was adopted does not mean people at the time thought it was unconstitutional. They might have only thought it unwise, or perhaps it did not occur to them to use it.

That seems right as a general matter -- that is, non-use alone isn't enough to show unconstitutionality in the case of an ambiguous provision.  We don't expect the Constitution to freeze practices (especially procedural practices) in exactly the form they existed at the time of enactment.  But we (originalists, at least) do expect the Constitution to freeze some practices in the form they exist to prevent the erosion of rights supposedly protected against the development of new invasive practices.  The question has to be some form of asking whether the new practice strikes at the core of the right that the constitutional provision was understood to protect.

One way to approach the problem is to see if the challenged government practice is the kind that the enactors specifically understood the constitutional protect to address.  (E.g., the due process clause prevents executive detention without authority of law).  But often new practices are not within the enactors' specific contemplation because they are new -- and the question becomes somewhat more hypothetical.

So in Nelson, I don't think it's enough to say Colorado's approach has no historical foundation.  We need some kind of argument that it is the sort of practice against which the due process clause was understood to protect.

I think the case can be made that it is.  The background assumption, reflected in both the due process clause and the takings clause, was an individual right to private property.  Government could deprive individuals of their private property in various ways -- e.g., through fines after conviction, by the government paying compensation, by forfeiture -- but the government had to act within one of these traditional categories.  The executive (or the judiciary) could not simply seize private property (even if purportedly authorized by the legislature) -- there had to be "due" process, which in property cases meant one of the traditional forms of transferring private property to the the government.  If new forms of seizure could be invented and declared "due" by later courts, then the constitutional protection for property would be ineffectual.

In Nelson, the state's only possible argument for acting through one of the traditional forms of seizing property is the levying of fines and related penalties after a criminal conviction.  But this form of seizure depends on a lawful conviction, which Colorado does not have in this case.  Colorado is in effect circumventing the legal process by keeping the fines paid, even without a conviction.  The fact that a statute authorizes this procedure is no answer: otherwise, the legislature could pass a law allowing fines to be collected upon arrest, with no criminal prosecution at all.  The reason it can't do this is not just because it was not done at the time of the Constitution's enactment, but because the due process clause was specifically understood at the time of enactment to prevent this from happening by requiring property seizure to occur in only certain traditional categories of circumstances.

Thus my very short version of Nelson is this:  The Constitution has long been understood to prevent government seizure of private property except within certain traditional categories and processes.  Colorado's only justification for seizure here is that defendants were lawfully convicted and thus must pay statutorily authorized penalties.  That would indeed be a justification, if the defendant's convictions were lawful.  But they were not, because they were reversed on appeal and no new convictions were obtained.   Thus Colorado is wrongfully retaining defendants' property, and it cannot create burdensome procedures to prevent defendants from obtaining a refund.

And so it's an easy case after all.  (As I assume the Court will conclude, based on the tough questions Colorado encountered at oral argument [transcript here; argument analysis from Steve Vladeck here] -- and the fact that there seems no good reason for the Court to hear this case other than to reverse it).


Timothy Sandefur: Comments on Tara Smith's "Judicial Review in an Objective Legal System"
Michael Ramsey

Timothy Sandefur (Goldwater Institute) has posted Comments on Tara Smith's Judicial Review in an Objective Legal System on SSRN.  Here is the abstract:    

These comments on Tara Smith's book "Judicial Review in An Objective Legal System" [ed.: available here] were prepared for a panel at the American Philosophical Association's Ayn Rand Society. They challenge the interaction between political values and linguistic meaning in Smith's theory, asks whether objectivity does a better job than original meaning in understanding constitutional clauses like the Commerce Clause, and asks whether there is anything wrong in regarding a judge as engaged in a creative act.

There's a lot more to this paper than the abstract may suggest, as it thoughtfully explores a number of issues relating to originalism and the meaning of laws.  Very much worth a read.