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33 posts from December 2017


Seth Barrett Tillman: The Blue Book & the Foreign Emoluments Clause Cases Against the President
Michael Ramsey

 Seth Barrett Tillman (National University of Ireland, Maynooth - Faculty of Law) has posted The Blue Book & the Foreign Emoluments Clause Cases Against the President: Old Questions Answered on SSRN.  Here is the abstract:

This short paper attempts to explain why the American State Papers roll of officers (published in 1834) substantively amended Hamilton's original 1793 roll of officers (partially reproduced in The Papers of Alexander Hamilton).


University of Chicago Law Review Special Issue on Justice Scalia
Michael Ramsey

Recently published: the University of Chicago Law Review special issue on Justice Scalia.  Here is the table of contents:

In Memoriam

Some Reflections on Justice Scalia
Lillian R. BeVier

Justice Scalia: Constitutional Conservative
Noel J. Francisco

Coots, Loons, and Civility
Taylor A.R. Meehan

The Education of a Law Clerk, with Thanks to Justice Scalia
Andrew J. Nussbaum

The Forthrightness of Justice Scalia
Ryan J. Walsh


Congressional Insiders and Outsiders
Amy Coney Barrett

Originalism as a Constraint on Judges
William Baude

Scalia in the Casebooks
Brian T. Fitzpatrick & Paulson K. Varghese

Justice Scalia’s Other Standing Legacy
Tara Leigh Grove

Confronting Crawford: Justice Scalia, the Judicial Method, and the Adjudicative Limits of Originalism
Gary Lawson

Remembering the Boss
Jonathan F. Mitchell

Originalist Law Reform, Judicial Departmentalism, and Justice Scalia
Kevin C. Walsh

Via Will Baude at Volokh Conspiracy (recently relocated to Reason.com from the Washington Post).


Santiago Legarre: A New Natural Law Reading of the Constitution
Michael Ramsey

Santiago Legarre (Universidad Catolica Argentina; Notre Dame Law School) has posted A New Natural Law Reading of the Constitution (Louisiana Law Review (2018), forthcoming) on SSRN.  Here is the abstract:

This article first explains what natural law is not; secondly, it explains what is natural law; finally, and hopefully more originally, the article explores two different ways in which natural law is relevant in constitutional interpretation (and indeed in the interpretation of any positive law). In so doing it criticizes originalist theories of interpretation insofar as they make of historical inquiry not the starting but the final point of the interpretative venture.


Josh Blackman on the President's Immigration Powers
Michael Ramsey

At Lawfare/Josh Blackman's Blog, Josh Blackman: The Ninth Circuit Previews Why Article II Will Save The Travel Ban.  From the introduction:

In invalidating the latest iteration of the travel ban, known as the Proclamation, the Ninth Circuit Court of Appeals reached an important question of first impression: whether the policy could be supported by the President’s independent Article II  authority. The Hawaii v. Trump panel held that “the President lacks independent constitutional authority to issue the Proclamation, as control over the entry of aliens is a power within the exclusive province of Congress.” This conclusion is the most important sentence in the entire 77-page opinion. If the president has the inherent power to deny entry to aliens, then the court’s Immigration and Nationality Act (INA) analysis is largely superfluous. If he lacks such a power, then the Ninth Circuit’s statutory analysis would hold up on appeal.

Professor Blackman relies principally on  (1950) to conclude that the President has such an inherent power: 

Through a 1941 law, Congress gave the president the power to issue a proclamation, which would have the effect of rendering “unlawful” the “entry into the United States” of certain aliens when “the President shall find that the interests of the United States require that restrictions.” In other words, Congress permitted the president to effectively amend the statutory grounds for inadmissibility. President Roosevelt issued such a proclamation, which ordered that “no alien should be permitted to enter the United States if it were found that such entry would be prejudicial to the interest of the United States.” (This open-ended language is very similar to 8 U.S.C. 1182(f), which would be enacted a decade later.) Pursuant to this proclamation, the Attorney General promulgated the regulations that denied Knauff’s entry into the United States. On appeal to the Supreme Court, Knauff argued that the “1941 Act and the regulations thereunder are void to the extent that they contain unconstitutional delegations of legislative power.”

The court rejected this argument, explaining that the power at issue in the 1941 act was not a legislative power at all; it was an inherent executive power. “The exclusion of aliens is a fundamental act of sovereignty,” Justice Sherman Minton stated. “The right to do so stems not alone from legislative power but is inherent in the executive power to control the foreign affairs of the nation.” Thus, there cannot be a violation of the non-delegation doctrine, because Congress is not delegating legislative power at all. The court supported this argument with a citation to , which also rejected a non-delegation doctrine challenge because the President was exercising his exclusive powers concerning foreign affairs.

What was the 1941 act doing then, if not delegating legislative power? “When Congress prescribes a procedure concerning the admissibility of aliens,” the court explained, “it is not dealing alone with a legislative power.” Rather, “[i]t is implementing an inherent executive power.” In the normal course, the court noted, “Congress supplies the conditions of the privilege of entry into the United States.” However, “because the power of exclusion of aliens is also inherent in the executive department of the sovereign, Congress may in broad terms authorize the executive to exercise the power.”

I think this is probably right as an original matter as well.  First, there's no textual indication that Congress has plenary power over admission of aliens.  Congress has no express power over admission of aliens; several of Congress' enumerated powers may allow partial control over admission of aliens, and those powers combined may come close to full control as a practical matter.  But that does not seem sufficient to support an exclusive power.  Second, as I've argued in multiple places (but initially here), the President's executive power vested by Article II, Section 1 included traditionally executive foreign affairs powers to the extent such powers were not vested in Congress by the Constitution.  Third, it seems likely that the power to exclude aliens (especially the power to exclude aliens considered to be a threat to national security) was a traditional executive power.  Although I've not done the research necessary to say for sure, it seems likely that the English monarch had broad power to exclude aliens, at least absent a contrary direction from parliament.  If that's right (and I'd be very surprised if it isn't), and since the text does not give Congress a direct power over admitting aliens, that power should be understood as vested in the President by Article II, Section 1.  That's more-or-less where Knauff v. Shaughnessy comes out, although the Court's majority rested too much on "inherent" power and not enough on the Constitution's text for an originalist to endorse the opinion.

(Thanks to Mark Pulliam for the pointer).


Gregory Ablavsky: Race, Citizenship, and Original Constitutional Meanings
Michael Ramsey

Gregory Ablavsky (Stanford Law School) has posted 'With the Indian Tribes': Race, Citizenship, and Original Constitutional Meanings (Stanford Law Review, forthcoming) on SSRN.  Here is the abstract:

Under black-letter law declared in Morton v. Mancari, federal classifications of individuals as “Indian” based on membership in a federally recognized tribe rely on a political, not a racial, distinction, and so are generally subject only to rational-basis review. But the Supreme Court recently questioned this long-standing dichotomy, resulting in renewed challenges arguing that, because tribal membership usually requires Native ancestry, such classifications are race-based.

The term “Indian” appears twice in the original U.S. Constitution. A large and important scholarly literature has developed arguing that this specific constitutional inclusion of “Indian tribes” mitigates equal protection concerns. Missing from these discussions, however, is much consideration of these terms’ meaning at the time of the Constitution’s adoption. Most scholars have concluded that there is a lack of evidence on this point—a “gap” in the historical record.

This Essay uses legal, intellectual, and cultural history to close that “gap” and reconstruct the historical meanings of “tribe” and “Indian” in the late eighteenth century. Rather than a single “original meaning,” it finds duality: Anglo-Americans of the time also alternated between referring to Native communities as “nations,” which connoted equality, and “tribes,” which conveyed Natives’ purported uncivilized status. They also defined “Indians” both in racial terms, as non-white, and in jurisdictional terms, as non-citizens.

These contrasting meanings, I argue, have potentially important doctrinal implications for current debates in Indian law, depending on the interpretive approach applied. Although the term “tribe” had at times derogatory connotations, its use in the Constitution bolsters arguments emphasizing the significance of Native descent and arguably weakens current attacks on Native sovereignty based on invidious legal distinctions among Native communities. Similarly, there is convincing evidence to read “Indian” in the Constitution in political terms, justifying Morton’s dichotomy. But interpreting “Indian” as a “racial” category also provides little solace to Indian law’s critics, since it fundamentally undermines their insistence on a colorblind Constitution.


Emoluments Case Dismissed (with my Comments)
Michael Ramsey

The opinion from Judge Daniels (S.D.N.Y) in CREW et al. v. Trump is here.  (Via PoliticoJudge dismisses suits claiming Trump violated emoluments clause.)

The opinion mostly rests on doctrinal analysis finding that plaintiffs lack standing.  There's this about the original intent of the emoluments clauses (concludind that the plaintiffs are not within the "zone of interest" for standing purposes): 

Nothing in the text or the history of the Emoluments Clauses suggests that the Framers intended these provisions to protect anyone from competition. The prohibitions contained in these Clauses arose from the Framers' concern with protecting the new government from corruption and undue influence. Indeed, at the time of the Founding, the new republic was conscious of the European custom of bestowing gifts and money on foreign officials. The Framers, who fought a war to gain their independence from British rule, wanted government officials to avoid future undue influence. As Edmund J. Randolph explained at the Virginia Ratifying Convention,

The [Foreign Emoluments Clause] restrains any person in office from accepting of any present or emolument, title or office, from any foreign prince or state .... This restriction is provided to prevent corruption.

Jonathan Elliot, The Debates in the Several State Conventions on the Adoption of the Federal Constitution, 465-66 (2d ed. 1891); (see also Br. of Former Gov't Ethics Officers as Amici Curiae Supporting Pls., ECF No. 71-1, at 1 (stating that the Clauses "are an important check on corruption, and a beacon for good governance.").)

The Framers were not only concerned with foreign corruption, but they were also wary of undue influence from within. To ensure the president's independence from the states and additional financial incentives from the federal government, the Framers included in the Constitution the Domestic Emoluments Clause. That clause was meant to ensure that the president has "no pecuniary inducement to renounce or desert the independence intended for him by the Constitution." The Federalist No. 73 (Alexander Hamilton). Evidently, the Framers were concerned that

[T]he legislature, with a discretionary power over the salary and emoluments of the [president], could render him as obsequious to their will as they might think proper to make him. They might, in most cases, either reduce him by famine, or tempt him by largesses, to surrender at discretion his judgment to their inclinations.

Id. The Clause also helps to ensure presidential impartiality among the states given that"[n]either the Union, nor any of its members, will be at liberty to give, nor will he be at liberty to receive, any other emolument than that which may have been determined by the first act." Id.

Given this history, there can be no doubt that the intended purpose of the Foreign Emoluments Clause was to prevent official corruption and foreign influence, while the Domestic Emoluments Clause was meant to ensure presidential independence. Therefore, the Hospitality Plaintiffs' theory that the Clauses protect them from increased competition in the market for government business must be rejected…

Apparently as independent grounds for dismissal, the court found the case to be a political question and (relatedly) unripe for adjudication:

Plaintiffs' Foreign Emoluments Clause claims do implicate political question concerns. The political question doctrine has its roots in the separation of powers and is ultimately a doctrine of justiciability. It bars courts from deciding cases that are inappropriate for judicial resolution based on a lack of judicial authority or competence, or other prudential considerations. [Citing Baker v. Carr]

Here, the issue presented under the Foreign Emoluments Clause is whether Defendant can continue to receive income from his business with foreign governments without the consent of Congress. As the explicit language of the Foreign Emoluments Clause makes clear, this is an issue committed exclusively to Congress. As the only political branch with the power to consent to violations of the Foreign Emoluments Clause, Congress is the appropriate body to determine whether, and to what extent, Defendant's conduct unlawfully infringes on that power. If Congress determines that an infringement has occurred, it is up to Congress to decide whether to challenge or acquiesce to Defendant's conduct. As such, this case presents a non-justiciable political question.

[In addition,] Plaintiffs' Foreign Emoluments Clause claims are indeed not ripe for judicial review. Ripeness is a different justiciability doctrine designed to prevent courts from prematurely adjudicating cases. [Citing Abbot Labs. v. Gardner and Justice Powell’s opinion in Goldwater v. Carter].  … Here, Plaintiffs' suit implicates a similar concern regarding a conflict between two coequal branches of government that has yet to mature. As indicated earlier, the Foreign Emoluments Clause makes clear that Congress, and Congress alone, has the authority to consent to violations of that clause. Plaintiffs' principal allegation is that Defendant has completely ignored this balance of power by continuing to accept emoluments without Congressional approval. As such, this case involves a conflict between Congress and the President in which this Court should not interfere unless and until Congress has asserted its authority and taken some sort of action with respect to Defendant's alleged constitutional violations of its consent power.

At this stage, it would be "both premature and presumptuous for [a court] to render a decision on the issue of [whether Congress's consent] is required at this time or in the near future when ... Congress itself has provided no indication whether it deems such [consent] either necessary, on the one hand, or imprudent, on the other." Dellums v. Bush, 752 F. Supp. 1141, 1149-50 (D.D.C. 1990). If Congress wishes to confront Defendant over a perceived violation of the Foreign Emoluments Clause, it can take action. However, if it chooses not to, "it is not [this Court's] task to do so." Goldwater, 444 U.S. at 998. This Court will not tell Congress how it should or should not assert its power in responding to Defendant's alleged violations of the Foreign Emoluments Clause. In short, unless and until Congress speaks on this issue, Plaintiffs' Foreign Emoluments Clause claims are not ripe for adjudication.

I'm not persuaded by either of these latter points.  Of course, it is a political question textually entrusted to Congress whether to approve of the receipt of emoluments.  But the question here is not whether Congress rightly or wrongly approved; the question is whether absent approval the benefits the President is receiving count as "emoluments" for constitutional purposes.  That's purely a question of constitutional interpretation, the type of activity to which courts are particularly suited, and exactly the sort of question that, under Zivotofsky v. Clinton, is not a political question.  (Aside: why do courts persist in relying on Baker v. Carr and ignoring the more recent and more important decision in Zivotofsky?).

I do think there is a potential political question, but it's not the one the court identifies.  Rather, it is whether Congress has implicitly approved (or decided that the benefits are not emoluments, or that the emoluments clause does not apply to the President).  Congress has been interacting with the President for almost a year now, with full knowledge of the emoluments issues raised in this case, without (as an institution) making any objection.  Arguably that might count as implicit approval, and arguably it's a political question how Congress chooses to signal its approval.

Relatedly, I don't think much of the ripeness argument.  If Congress were actively considering the issue, or if the matter had just arisen, I could see an argument that the court should wait.  But Congress does not seem to be actively considering it.  So that squarely presents the question whether the President is acting unconstitutionally by receiving benefits without the consent of Congress.  Dellums and Goldwater both involved suits by members of Congress, so perhaps the considerations were different.  But if a private party is harmed, the burden should be on the President to get consent, not the other way around.  Calling the present decision unripe in effect means that Congress must affirmatively disapprove to block the President's action.  That's not how the Constitution reads.

Indeed, if the ripeness decision is correct it would seem to bar all sorts of separation of powers disputes that we ordinarily think of as justiciable.  Commonly the President is said to be taking an unconstitutional action because Congress has not approved.  In the famous Steel Seizure case, for example, the claim was that the President had seized steel mills without Congress' approval.  That did not make the claim unripe.  It meant that, if the claim had merit, the President could not act unless Congress approved.  I don't see why the same conclusion shouldn't apply here.


Some Thoughts on the Logan Act
Michael Ramsey

It's not really originalism, but perhaps of interest: at the invitation of the Federalist Society, I contributed this short essay on the Logan Act to their blog and participated in a podcast that is available here.  (18 U.S.C. §953, originally enacted in 1799 and informally called the Logan Act, prohibits unauthorized private diplomacy by U.S. citizens with foreign governments).

There are various issues relating to the Act -- some with originalist overtones and some not -- as sketched in the essay.  For present purposes, I'm most interested in the question of what it means to be "without authority of the United States."  The Act provides:  

Any citizen of the United States, wherever he may be, who, without authority of the United States, directly or indirectly commences or carries on any correspondence or intercourse with any foreign government or any officer or agent thereof, with intent to influence the measures or conduct of any foreign government or of any officer or agent thereof, in relation to any disputes or controversies with the United States, or to defeat the measures of the United States, shall be fined under this title or imprisoned not more than three years, or both.

As I put it in the essay:

The Act applies to persons who act “without authority of the United States.” That could be read to mean any persons who do not act with the approval of the President; but it could also be read to mean only persons who have no public status at all. For example, members of Congress, acting in pursuance of their legislative duties, might be thought to act with authority of the United States even when they are not acting with approval of the President. The immediate purpose of the Act in 1799 was to prevent the sort of purely private diplomacy [George] Logan [a private citizen who was the inspiration for the Act] himself engaged in, which is distinct from activities of public officials such as members of Congress. 

As with members of Congress, the foregoing factors might counsel hesitancy to apply the Logan Act to the activities of presidential transition teams after a presidential election. The purpose of the transition is to smooth the way for the new administration, and in the diplomatic field that seems necessarily to involve speaking with foreign governments about matters of dispute. Indeed, this seems a vital activity to reduce uncertainty during the transition. It is likely that members of transitions teams of other incoming Presidents have routinely discussed pending disputes with foreign officials without raising Logan Act concerns. The Act’s goal of preventing private diplomacy is far removed from the context of presidential transitions, and there were no quasi-official transition teams at the time the Act was passed. Thus the history and purpose of the Act may suggest that it should not apply to transition teams. Moreover, one might see designated members of a transition team have a sort of official status, having been selected by the President-elect, who in turn has a quasi-official status as a result of the election. Indeed, the presidential transition process is formally established by law: the Presidential Transition Act of 1963, as amended, provides funding, facilities and access to government services for the transition team. Thus, although the diplomatic activities of the transition team may not have been directly authorized by the existing Executive Branch, like the activities of members of Congress they might be seen as done with “the authority of the United States” due to the transition’s quasi-official status and the longstanding purpose and practice of transitions. 


Aziz Huq: Separation of Powers Metatheory
Michael Ramsey

Aziz Z. Huq (University of Chicago - Law School) has posted Separation of Powers Metatheory (Columbia Law Review, Vol. 118) on SSRN.  Here is the abstract:

Scholarship and jurisprudence concerning the Constitution’s separation of powers today is characterized by sharp disagreement about general theory and specific outcomes. The leading theories diverge on how to model the motives of institutional actors; on how to weigh text, history, doctrine, and norms; and on whether to characterize the separation-of-powers system as abiding in a stable equilibrium or as enthralled in convulsively transformative paroxysms. Congress’s Constitution [ed.: the new book by Josh Chefetz, available here] — a major contribution to theorizing on the separation of powers — provides a platform to step back and isolate these important, if not always candidly recognized, disputes about the empirical and normative predicates of separation-of-powers theory — predicates that can be usefully grouped under the rubric of ‘separation of powers metatheory.’ Unlike much other work in the field, Congress’s Constitution directly identifies and addresses the three important key metatheoretical questions in play when the separation of powers is theorized. This review analyzes how it grapples with those profound challenges, and tries to articulate a descriptively fit and normatively compelling account of our federal government. Considering Congress’s Constitution from this perspective offers a valuable opportunity for considering the state and direction of academic theorizing on the separation of powers more broadly.


Nonconstitutional Adjustments and the Carpenter Case
Mike Rappaport

I have written three prior posts on the Third Party Doctrine and the Carpenter Case – see here, here, and here.  My basic, tentative take, is that under the original meaning, cell phone customers probably aren't currently protected by the Fourth Amendment, but that they could be protected by the actions of states, of the federal government, or through private contracts with cell phone companies.

Many people feel strongly that cell phone customers should be protected (as do I) and will be tempted to argue (as I do not) that the Fourth Amendment should be “interpreted” to protect them.  Some people will argue – in a variety of ways – that the circumstances of the modern world are different from those in the Framers’ world and therefore the Amendment must be adjusted to reflect modern circumstances (if not modern values).  Even if private contracts or state laws could be employed to protect customers under the Fourth Amendment’s original meaning, the process of forming these contracts or enacting these laws is thought to be too burdensome.  Instead, the Supreme Court should modify the Constitution to protect customers without these private or state adjustments.

One way to look at this situation is to see that there are two sets of adjustments: nonconstitutional and judicial adjustments.  One way to protect Fourth Amendment rights is through nonconstitutional adjustments (private contracts and state laws).  If these adjustments are made, then the Constitution is “updated” to modern circumstances.  Such adjustments are not always possible (for example, expanding federal power to regulate commerce during the New Deal), but often they are.  But even where possible, such nonconstitutional adjustments require effort and time.  For example, changing the contracts between cell phone companies and customers would involve significant effort – a publicity campaign by privacy groups followed by consumers caring about those contracts.  For many people, these nonconstitutional adjustments are just too difficult.

But the alternative to employing nonconstitutional adjustments is to employ judicial adjustments – having judges rewrite or update the Constitution to reflect their view of what modern circumstances require.  In my view, such judicial updating is seriously problematic for a variety of reasons, but most importantly that having a 9 member court in Washington D.C. redraft the Constitution is not very attractive.

Unfortunately, many people, including most nonoriginalists, seem to believe that it is better to have the Supreme Court redraft the Constitution than to incur the costs of nonconstitutional adjustments.

Jonathan Adler: Auer Evasions
Michael Ramsey

Jonathan H. Adler (Case Western Reserve University School of Law; PERC - Property and Environment Research Center) has posted Auer Evasions (16 Georgetown Journal of Law & Public Policy, forthcoming) on SSRN.  Here is the abstract:

Auer v. Robbins requires federal courts to defer to federal agency interpretations of ambiguous regulations. Auer built upon, and arguably expanded, the Court’s long-standing practice of deferring to agency interpretations of their own regulations born in Bowles v. Seminole Rock. Although initially uncontroversial, the doctrine has come under fire from legal commentators and prominent jurists, including Auer’s author, the late Justice Antonin Scalia. As Justice Scalia came to recognize, Auer deference enables agencies to evade a wide range of legal constraints that are otherwise imposed upon agency behavior, the ability of agencies to take action with the force of law in particular. This brief Article seeks to explain how the practice of Auer deference undermines – and facilitates the evasion of – basic administrative law principles of accountability, notice, responsibility and finality. After reviewing Auer history and considering these evasions, the Article ponders whether we are approaching Auer’s end.