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31 posts from February 2018


Jennings v. Rodriguez Cuts Back on the Constitutional Doubt Canon
Michael Ramsey

Speaking of the constitutional doubt canon (see here from last week) ... Tuesday's opinion from the Supreme Court in Jennings v. Rodriguez took a somewhat narrow view of it.  The lower court had found a statutory right to periodic bail hearings for aliens being detained pending removal; the conclusion was that, absent such a right, the statute authorizing detention would "raise serious constitutional concerns."  Wrong, said Justice Alito, writing for himself, Roberts, Kennedy, Thomas and Gorsuch:

The canon of constitutional avoidance “comes into play only when, after the application of ordinary textual analysis, the statute is found to be susceptible of more than one construction.” Clark v. Martinez, 543 U. S. 371, 385 (2005). In the absence of more than one plausible construction, the canon simply “‘has no application.’” Warger v. Shauers, 574 U. S. ___, ___ (2014) (slip op., at 10) (quoting United States v. Oakland Cannabis Buyers’ Cooperative, 532 U. S. 483, 494 (2001)).

The Court of Appeals misapplied the canon in this case because its interpretations of the three provisions at issue here are implausible. In Parts III–A and III–B, we hold that, subject only to express exceptions, §§1225(b) and 1226(c) authorize detention until the end of applicable proceedings. And in Part III–C, we hold that there is no justification for any of the procedural requirements that the Court of Appeals layered onto §1226(a) without any arguable statutory foundation.

The Court sent the case back to the Ninth Circuit to decide whether the statute, lacking the right to bail hearings, is constitutional.  As discussed in the previous post, I'd rather get rid of the canon altogether, but a strict prerequisite of textual ambiguity is a useful step.  The alternative, as shown in the lower court opinion, is courts rewriting statutes to avoid constitutional doubt -- something well outside the judicial function.




Originalism, Minorities, and Women
Mike Rappaport

At the Originalism Conference recently, Christina Mulligan presented a well received paper on the objections to originalism from racial minorities and women and how such objections might be addressed.

It was an interesting paper and canvassed the whole range of objections, without asking whether or not they were well considered.  While it is annoying for originalists to find weak criticisms taken as seriously as strong ones, I nonetheless found the strategy useful.  If one is attempting to engage with people who believe a range of things, it will sometimes be better to give the best response rather than to tell them that their criticism is mistaken.

Some of the criticisms by minorities are important.  One significant criticism of the Constitution is that it was written by white men at a time when much of the country practiced slavery and women were treated as second class citizens.  John McGinnis and I devoted a chapter of our book, Originalism and the Good Constitution, to this issue.  We basically argued that the original Constitution was seriously defective and did not obligate black slaves, but that the defects of the Constitution were largely corrected by the Reconstruction Amendments.

One of the criticisms that Mulligan addresses derives from the claim that most originalists in the academy are white males.  Based on this claim, it might be thought that originalism is biased against women and minorities and that white male originalists are unconcerned with the interests of these groups.  I found this to be a disturbing criticism.  The white male originalists in the academy that I know are neither biased against women and minorities, nor unconcerned with their interests.  And the suggestion that they are is outrageous.

But what of the fact that most originalists in the academy are white males?  That is true, but the question is what it proves.  My sense is that people who are on the right in the academy tend to be white males.  Thus, to the extent that originalists are on the right, it is no surprise that they tend to be white males.

Yet, not all originalists are white males.  In fact, the person I regard as the leading originalist in the world today is a black man, Justice Clarence Thomas.  It is significant that among people who criticize originalism as anti-minority, so little is made of the fact that arguably the leading originalist is a black man.  If one made this point in the academy today, many people would scoff at the idea that Clarence Thomas is black.  Sure he is black, they would say, but he is not a genuine black man.  He has the views of a white man.  He is a conservative originalist.

But this response is revealing.  It suggests that whether a person is a racial minority is not the primary question.  The question instead is whether that person has progressive views.  That originalists do not tend to be progressive is an important fact, but it is different than the claim that originalists tend not to be minorities.

I tend not to focus on the racial identity or sex of scholars or judges.  But if one is concerned about such things, then it is striking fact about originalism that arguably the world’s leading originalist is a black man.  But it is seldom, if at all, mentioned.

Rebecca Roiphe & Bruce Green: Can the President Control the Department of Justice?
Michael Ramsey

Rebecca Roiphe (New York Law School) and Bruce A. Green (Fordham University School of Law) have posted Can the President Control the Department of Justice? (Alabama Law Review, forthcoming) on SSRN. Here is the abstract:

This article addresses the question of presidential power principally from an historical perspective. It argues that the Department of Justice is independent of the President, and its decisions in individual cases and investigations are largely immune from his interference or direction. This does not result from any explicit constitutional or legislative mandate, but is rather based on an evolving understanding of prosecutorial independence and professional norms.

American democratic discourse has included the value of independent prosecutions from its inception, and scholars have debated how much this concept influenced the initial structure of American government. In the late 18th century, federal prosecutors enjoyed a significant degree of independence from the White House, both because of the diffuse local nature of federal prosecutions and the vague and overlapping lines of authority. As federal law grew in scope and complexity, there was an increased need to consolidate and rationalize the legal arm of the government. Ultimately the Department of Justice assumed this function under the executive branch. In 1870 when it created the law department, Congress was not overly concerned that partisan politics would infiltrate and undermine the rule of law, because at the time expertise, including professional norms for attorneys, were considered the ultimate protection against partisan corruption. In arguing that professional norms operated as an internal barrier between the Department of Justice and the remainder of the executive branch, this Article contributes to a growing debate about intra-branch checks and balances.

First, I say it's "a historical perspective" not "an historical perspective."  Just as it's "a hippopotamus" not "an hippopotamus."(Sorry, just a pet peeve I can't resist).

Second, more seriously, this interesting paper raises an important question encountered here before.  It's familiar view that longstanding custom can relax a constitutional requirement, especially in the separation of powers area.  This is, of course, Justice Frankfurter's concurrence in the Steel Seizure case, among many others.  But this paper's argument is that longstanding practice can create a constitutional requirement where the Constitution's text doesn't impose one.

This issue came up in the context of Judge Garland's nomination to the Supreme Court.  One of the arguments then was that, even if the Constitution itself did not impose a duty on the Senate to consider the nomination, past practice imposed such an obligation.

I doubted this was true, however (even assuming there was such a past practice) [further thoughts here].  My view was that even if practice can relax constitutional obligations, it can't create them.  That's because the relevant political actors may be behaving the way they are out of convenience, not out of a sense of legal obligation.  In the Garland situation, even if the Senate had uniformly given nominees a hearing in the past, that did not suggest anyone felt a legal obligation to do so.  In contrast, where the political actors relax a constitutional obligation, they necessarily are taking the view that as legal matter the obligation should be relaxed.

One example I gave is the two-term limit for Presidents.  This was a custom established by George Washington and followed until Franklin Roosevelt.  It was probably a good idea.  But I think few people thought it was a legal obligation.  Roosevelt's standing for a third term did not violate a constitutional obligation.  And when people wanted to make it a constitutional obligation, they amended the Constitution.  (Another example is the Senate filibuster -- again, a longstanding practice but one we generally assume could be changed).

I could not think of any examples where the Supreme Court had found a longstanding practice to create (as opposed to relax) a constitutional obligation.  I'm still looking for examples, as it seems an important point.  (A reader suggested Chief Justice Roberts' commerce clause opinion in NFIB v. Sebelius, but that seems more an interpretation of textual limitation rather than a creation of a nontextual obligation.)

So my initial reaction on this paper is that the practice does not create an obligation.  Assuming that the Constitution's original meaning is that the Department of Justice is under the President, a practice of independence from the President doesn't create a new rule; it just creates a practice -- arguably a good one -- and the decision whether to depart from that practice is a political rather than a constitutional one (until it is incorporated into a constitutional amendment).


Janus v. AFSCME Argument Today (Updated)
Michael Ramsey

The Supreme Court hears argument today in Janus v. AFSCME, the union dues case.  The question presented is "Whether Abood v. Detroit Board of Education should be overruled and public-sector 'agency shop' arrangements invalidated under the First Amendment."

As I've mentioned earlier, this case appears very problematic from an originalist perspective.  Commentary generally assumes that the five center-right Justices are inclined to hold that compelled payment of union dues to public sector unions violates the freedom of speech.  The argument is that compelling an individual to give financial support to an entity that takes public positions on matters of public concern is effectively unconstitutional compelled speech.  Abood held (to oversimplify) that this is sort of true and sort of not true, depending on what positions were being taken.  The project in Janus is to get rid of the Abood intermediate position and hold that such compelled payments are always unconstitutional.

The problem from an originalist perspective is that it's not clear (and certainly not demonstrated in the briefs in Janus) that the original meaning of the First Amendment says anything about compelling payments (as opposed to compelling speech).  As Eugene Volokh and Will Baude point out in an interesting amicus brief, taxpayers are routinely compelled to pay money to the government, which uses some of that money to fund speech with which the taxpayers disagree (see further discussion from Professor Volokh here; also here from Eric Segall).  No one thinks that poses a First Amendment problem.  The government could collect taxes from Mr. Janus and then pay that money to the AFSCME union, with the AFSCME union using the money to fund its speech with which Mr. Janus disagrees.  If that arrangement is constitutional (and surely it is), then why would it be unconstitutional if the government authorizes AFSCME to collect money from Mr. Janus directly?

This argument proves a little less conclusive than Professors Volokh and Baude may think, because if "the freedom of speech" drew this distinction at the relevant time, it shouldn't matter whether we now find it a bit irrational.  To an originalist, constitutional rights come with the extent and limits recognized at the time of adoption, whatever we may now think of them.  But that observation highlights the crucial point: no one (so far as I am aware) has shown that compelled payments were understood as contrary to "the freedom of speech" at the relevant time.

Of course, no one has shown that compelled payments are consistent with "the freedom of speech" either.  But as Volokh and Baude argue, Abood held that some compelled payments are consistent with the freedom of speech.  To overrule that conclusion, the Court would seem to need some evidence it was wrong -- and an originalist should need some originalist evidence.

The reasons that Janus is a problem for originalism, then, it that the originalist-oriented Justices seem likely to overrule Abood without any originalist reasons for doing so. That outcome, if it occurs, weakens originalism by suggesting that it is just a tool for conservative results, to be discarded when it does not lead to conservative results.  Originalism would emerge much stronger if Janus came out the other way (or if at least someone in the majority in Janus explained its originalist foundation).

UPDATE:  According to SCOTUSblog, Justice Gorsuch said nothing in oral argument, an interesting development.  But also according to SCOTUSblog, the union's attorney tried to appeal to Gorsuch by "warn[ing] of an 'untold specter of labor unrest throughout the country' if Janus prevails."  I don't know Gorsuch personally, but that sounds like the wrong approach.  I think you need an originalist argument to make a difference here.


Garrett West: Congress's Arrest Power and the Limits of Liquidation
Michael Ramsey

E. Garrett West (Yale Law School, students) has posted Revisiting Contempt: Congress's Arrest Power and the Limits of Liquidation (forthcoming) on SSRN. Here is the abstract:

This Article presents the first sustained challenge to the conventional wisdom. Beginning with the Constitution’s text, I argue that this power has no basis the enumerated powers of each chamber. What’s more, the express provision of other unicameral powers (say, the power to punish members) reinforces this absence, and the Constitution’s other rights-protecting provisions make it unlikely that such a power exists by implication. The Article then responds to two other arguments in favor of the inherent contempt power. First, defenders argue that both Parliament and the pre- and post-revolutionary state legislatures had the power; therefore, this authority should be inherent in Article I’s grant of “legislative power.” Conceding the empirical claim, I challenge the conclusion. Put simply, the Constitution’s commitments to popular sovereignty and separation of powers undermine the relevance of pre-constitutional precedent. Second, defenders argue that Congress must have this inherent contempt power by implication; otherwise, it could not perform its constitutional functions. Applying the doctrinal means-end test — that contempt be the “least possible power necessary to the end proposed” — I argue that Congress has less-constitutionally-problematic ways to serve the interests asserted.

The Article contributes to the literature on interpretive methodology. Because the inherent contempt power has been exercised by Congress since 1795, some argue that the Constitution’s meaning has been “liquidated” or “glossed” to allow the power. This generally unchallenged constitutional practice, pursued in the teeth of contrary constitutional text, raises thorny questions about interpretive methodology. First, I argue that decisions that do not result from inter-branch contestation and settlement should not be considered authoritative liquidations of constitutional meaning. Second, I argue that, even if the meaning of the Constitution has been liquidated, it can be de- and re-liquidated if practice shifts over a period of time. Third, I argue that if the constitutional justification for past assertions turns on a structural argument that no longer obtains (as here), then that precedent can be ignored without issue. These three assertions bolster the substantive point: Neither chamber of Congress may unilaterally arrest, detain, and try private citizens or executive branch officials for contempt.


Benjamin Flowers: An Essay Concerning Some Problems with the Constitutional-Doubt Canon
Michael Ramsey

Recently published, in the Washington & Lee Law Review Online, Benjamin M. Flowers (Jones Day): An Essay Concerning Some Problems with the Constitutional-Doubt Canon (74 Wash. & Lee L. Rev. Online 248 (2018)).  Here is the abstract:

The constitutional-doubt canon instructs that statutes should be interpreted in a way that avoids placing their constitutionality in doubt. This canon is often said to rest on the presumption that Congress does not intend to exceed its constitutional authority. That presumption, however, is inconsistent with the notion that government actors tend to exceed their lawful authority—a notion that motivates our constitutional structure, and in particular the series of checks and balances that the Constitution creates. This tension between the constitutional doubt canon and the Constitution’s structure would be acceptable if the canon accurately reflected the manner in which the public understands legislative enactments. But it doesn’t. Thus, the only possible justification for the constitutional-doubt canon is stare decisis.

Agreed.  Regular readers won't be surprised that I have nothing good to say about the constitutional doubt canon.  It seems another made-up bit of judicial imperialism-disguised-as-modesty without foundation in constitutional structure or founding-era practice.  If courts think a statute might be unconstitutional (or that it probably is unconstitutional) their job is to decide whether it is or not.  As Chief Justice Marshall said in Marbury: "It is emphatically the province and duty of the judicial department to say what the law is.  Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each."  This in turn follows from the oath to support the Constitution (Art. VI, para. 3) and the supremacy clause (Art. VI, para. 2): on one hand, courts must apply the Constitution at the expense of unconstitutional statutes; on the other, they must apply as supreme law statutes that are not unconstitutional.  So if there is constitutional doubt, they need to resolve it, not fail to apply a statute that is close to unconstitutional.

I was disappointed that Justice Scalia and Bryan Garner endorsed the canon in Reading Law (pp. 247-251), albeit a bit weakly.  (I like that they quoted in a footnote Judge Easterbrook's view that the canon is "noxious," "wholly illegitimate" and "a misuse of judicial power").  Scalia and Garner conceded that the canon could not be defended on the basis of finding Congress' intent, and instead claimed it was a "judicial policy of ... minimizing conflicts with the legislature."  But I cannot see how courts would think that they are justified in developing "judicial policy" to not enforce statutes, nor how doing so reduces conflicts with the legislature.

There's a more legitimate canon -- dating at least to Mossman v. Higginson in 1800 -- that statutes may be construed not to be unconstitutional.  In light of this canon, I don't see how the constitutional doubt canon avoids any conflict with the legislature.  Courts can decide if a proffered reading of an ambiguous statute is unconstitutional, and if so, can avoid a conflict with the legislature by construing the statute a different way. What the constitutional doubt canon avoids is the court having to make difficult constitutional calls in close cases.  But making life easy for courts isn't a constitutional value.

More broadly, the avoidance canon illustrates a problem for Reading Law, previously noted by John McGinnis and others.  The book presents a list of canons and pronounces some of them valid and others not valid.  But it never explains a general theory of why some canons are valid and some aren't.  True, some are valid as common sense ways to find the meaning of legal texts, and some are valid as interpretive tools that were in common use in the founding era.  But the constitutional doubt canon isn't either of these (Scalia and Garner's earliest citation of it is from 1909).  

Maybe (as Flowers' essay says at the end) the canon can be defended as a matter of stare decisis.  But I doubt even that.  Surely there is no reliance interest in it.  Its only beneficiaries are judges who don't feel like deciding hard constitutional questions.


Eric Segall Asks "What is Originalism?"
Michael Ramsey

At Dorf on Law, Eric Segall: What is Originalism circa 2018? (an entertaining account of his presentation and the reaction to it at the San Diego originalism works-in-progress conference last weekend).  An excerpt:

I spent last Friday and Saturday at the works-in-progress Originalism Conference at the University of San Diego. Professors Mike Rappaport, Mike Ramsey, Steve Smith, and Larry Alexander were wonderful hosts. I highly recommend this annual conference for anyone interested in originalism specifically or constitutional theory generally. I learned a tremendous amount from the papers presented and the robust, civil, and interesting discussions that took place. One thing I didn't learn, however, was what is Originalism circa 2018.


I identified a number of well-known originalists in the room, including Randy Barnett and Evan Bernick, Will Baude and Steve Sachs, the three Mikes (Ramsey, Rappaport and McConnell), Kurt Lash, and Steve Smith. Jack Balkin was also present, but other than Barnett, no one really knows why Balkin calls himself an originalist. Anyway, my point was that Baude and Sachs believe cases like Brown v. Board of Education, Lawrence v. Texas and the same-sex marriage decisions show that "originalism is our law," while none of the three Mikes or Barnett, or almost anyone else in the room take that position. Their views are emphatically not that originalism is our law, but that it should be our law.

I also observed that Barnett's and Bernick's libertarian form of originalism with strong judicial engagement is worlds away from other more deferential kinds of originalism. Moreover, Rappaport's and McGinnis's "original methods" theory, which calls for judges to only apply the interpretative methods of the founders, is a distant relative to some of the forms of originalism advocated by others in the room.

Thanks to Professor Segall for his kind words about the conference (and for his outstanding contribution to it).  I'll say in very brief response (1) I don't know that it's a problem that originalism is more a family of related approaches rather than a single unified approach; and (2) while I do think originalism is a family, I also think it is unified by a set of core commitments, and can appear more fragmented when one focuses on the more novel theories and the more difficult constitutional provisions.


Daniel Smyth on the Origination Clause (Updated)
Michael Ramsey

In the British Journal of American Legal Studies, Daniel Smyth: The Original Public Meaning of Amendment in the Origination Clause Versus the Patient Protection and Affordable Care Act (6 Br. J. Am. Leg. Studies 301 (2017)).  Here is the abstract: 

Robert Natelson recently published his article, The Founders’ Origination Clause and Implications for the Affordable Care Act, in the Harvard Journal of Law & Public Policy. This article argued the original understanding of the scope of the Senate’s power to amend the House of Representatives’ bills for raising revenue in the Origination Clause permits complete substitutes that are new bills for raising revenue, such as the Patient Protection and Affordable Care Act (PPACA). The original understanding of a constitutional word or provision is what the ratifiers of the Constitution thought was the meaning of the word or provision. When the Senate originated PPACA as an amendment to the House’s Service Members Home Ownership Tax Act of 2009, the Senate replaced the entire House bill, except for the bill’s number, with PPACA.

I consider the original public meaning—not the original understanding—of a constitutional word or provision, unless unrecoverable, to be the controlling meaning of that word or provision. The original public meaning is the meaning that a “reasonable speaker of English” during the founding era would have ascribed to the word or provision. My article argues the original public meaning of amendment is clear and disallows complete substitutes. For instance, founding-era dictionaries indicate an amendment was a change or alteration to something that transformed the thing from bad to better. This definition suggests an amendment must not be a complete substitute because an amendment must preserve at least a part of the thing being amended so that there is something to transform from bad to better.

My article further argues the preponderance of evidence suggests the original understanding of the scope of an amendment actually disallows complete substitutes. For example, much evidence from the Philadelphia Convention, Confederation Congress, state legislatures, and state conventions suggests the dominant view among the founders was that an amendment to the Articles of Confederation, the legal compact between 13 states enacted in 1781, could not be a complete substitute.

My conclusion argues PPACA or any other such complete substitute violates the original public meaning of the scope of an amendment.

UPDATE:  Link was bad; now fixed (link goes to the journal website; click on "Latest Issue of the British Journal of American Studies").


A Response to Professor Nourse’s "Reclaiming the Constitutional Text from Originalism," Part 2
Seth Barrett Tillman

[Note:  This is Part 2 of my response to Professor Nourse's article Reclaiming the Constitutional Text from Originalism: The Case of Executive Power.  Part 1 is here.]

This is not the place for a full defense of my views regarding the Constitution’s divergent Office-language. That has been done several times elsewhere. Here, I will respond to Nourse’s charge that I have engaged in intellectual “gerrymandering.” What is meant by this charge? Nourse provides helpful examples. Article II, Section 1, Clause 1, the Executive Power Vesting Clause, states: “The executive power shall be vested in a President of the United States of America.” In reading this clause, in his Morrison v. Olson dissent, Justice Scalia has stated: “this [language] does not mean some of the executive power, but all of the executive power.” Scalia, in effect, is changing the language of the clause to: “All the executive power shall be vested in a President of the United States of America.” Nourse challenges this type of textual enrichment as unsupported by the text. In other words, such enrichment is both reliant on unsupported assumptions of coherence across the Constitution’s text and reliant on unstated preferences of the interpreter. I agree. Nourse also objects to: “intratextual arguments . . . that come from excising particular words from one ‘home’ clause and moving that enrichment to a different ‘receiving’ clause, where the term takes on a new meaning.” I agree with this too: such a strategy poses dangers.

Consider the Impeachment Clause: “The President, Vice President and all Civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” Now some read this clause as suggesting that the clause’s use of Office, standing alone, is equivalent to the clause’s “Officers of the United States” language. In other words, such interpreters engage in textual enrichment. Such people read the clause either as:

The President, Vice President and all Civil Officers shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.


The President, Vice President and all Civil Officers of the United States, shall be removed from [the] Office of the United States [that they are holding] on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

Others assume redundancy—they assume that the latter “Officers of the United States” language also covers the presidency and vice presidency. They read the clause as:

The President, Vice President and all other Civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

All this textual enrichment—assuming Office is coextensive Officer of the United States—and assuming Officers of the United States also encompasses the President and Vice President—relies on just the sort of assumptions and inferences Nourse objects to. So do I. So does Story, as discussed in Part 1 of my response. The meanings above are textually possible. It is also textually possible, as Story has stated, that the President and Vice President hold “office,” but they are not encompassed by the category of “Officers of the United States” or “Civil Officers of the United States.” The clause-bound text does not answer this question.

Let’s look at another clause: the Elector Incompatibility Clause (art. II, § 1, cl. 2). It states: “[N]o Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector” (emphasis added). Some think the clause uses redundant language. They think the clause means: “[N]o Senator or Representative, or Person holding any other Office of Trust or Profit under the United States, shall be appointed an Elector.” In other words, they think the clause’s “Office of Trust or Profit under the United States” language extends to senators and representatives. The positions of senator and representatives need not have been separately listed as they were included by the clause’s Office-language. Others think the Constitution’s divergent office language does not extend to members of Congress. Is the clause’s language redundant? That question cannot be answered from the text of the Elector Incompatibility Clause (standing alone). There is a second question. Does the clause’s “Office of Trust or Profit under the United States” language extend to the President and Vice President? Here too, the text of the clause (standing alone) supplies no determinate answer. The fact that some elected federal positions were listed (Senators and Representatives), but not others (President and Vice President), might mean the latter positions are excluded from the scope of the clause. But such an inference is not obvious.

Finally, there is the Foreign Emoluments Clause. Again, the clause states:

[N]o Person holding any Office of Profit or Trust under [the United States], shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.”

How does Nourse read the clause?

The President, Vice President, and no Person holding any other Office of Profit or Trust under [the United States], shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.

Here it is Nourse that is engaged in just the sort of pragmatic enrichment she decries in Justice Scalia (who, you will remember, added “all” to the Executive Power Vesting Clause). Talk about unstated assumptions and unstated preferences! Not only does Nourse not recognize the clause’s ambiguity in regard to the presidency, she affirmatively states (pp. 40-41) that the contrary reading (i.e., the reading which excludes the President—a position not expressly mentioned by the clause—from the scope of the clause) is “verging-on-the-silly.”

Nourse’s sole defense of her interpretation of the Foreign Emoluments Clause—where she pragmatically enriches the text by adding language about the presidency—is that: “Article II, Section 4 provides that the President ‘shall be removed from Office by Impeachment’ for ‘high crimes and [m]isdemeanors.’ [Likewise,] Article I, Section 3, Clause 7 provides that the ‘Judgement in cases of Impeachment shall not extend further than to removal from Office’” (p. 28). Here too, Nourse is engaged in just the sort of weak intratextualism she decries in others. She assumes that “Office,” standing alone, in the Impeachment Clause, and “Office,” standing alone, in the Disqualification Clause are co-extensive or sufficiently similar with the Foreign Emoluments Clause’s “Office of Profit of Trust under [the United States]” language to make comparison and enrichment meaningful. I do not suggest that such a view is stupid; it is not. Others have held this view in the past. I do suggest that Nourse’s interpretation is not the only possible one. The text is not determinate. There are competing reasonable views. Given that competing reasonable views are consistent with the clause’s text, I have turned to historical practice in the Federalist Era regarding diplomatic gifts to presidents, the Hamilton document, and other contemporaneous and roughly contemporaneous extrinsic evidence. But the merits of that debate are beside the primary point. The primary point I am making here is that Nourse does not understand my position, and that in seeking to argue the contrary, she has engaged in just the sort of interpretive strategies that she says she opposes.

A Response to Professor Nourse’s "Reclaiming the Constitutional Text from Originalism," Part 1
Seth Barrett Tillman

[Note: This post is a section of a forthcoming paper in South Texas Law Review, where I respond to several of my critics.  A longer version of this response is posted on SSRN, here.]

Professor Victoria F. Nourse recently published in the California Law Review the article Reclaiming the Constitutional Text from Originalism: The Case of Executive Power, in which she criticized my work on the emoluments clauses.  She wrote (pp. 27-28, footnotes omitted):

At least one constitutional textualist/originalist argued that the [foreign emoluments] clause did not even apply to the President because the clause says “Office,” and based on a survey of the use of the term “office” throughout the Constitution, the term “office” typically applies to unelected members of the executive branch, not the President. He claimed that many other scholars, originalists and others, agreed with the position that “office” means the same thing throughout the Constitution. …

First, let us take the argument that the clause does not apply to the President. This is a classic form of textual gerrymandering—an argument that takes text out of context to create a new meaning. Let us assume that, in some parts of the Constitution, the term “office” means a lower ranking, unelected, member of the [E]xecutive [B]ranch. The problem comes in moving that definition from one part of the Constitution (call this the home clause) to another part (the receiving clause). Once isolated from the home clause, the term “office” is recontextualized within the receiving clause. If the home clause only covers unelected officials, then the receiving clause is now deemed to cover unelected officials. Such inferences, however, can rewrite the Constitution. The transferred home context effectively amends the new receiving context—the Foreign Emoluments Clause—by inserting the term “unelected.” Of course, that is not the actual text of the Constitution. The term “unelected” does not exist in the Foreign Emoluments Clause; it has been added by the interpreter.

Under “analytic textualism,” one asks whether a pragmatic addition such as “unelected” is falsified by any other text in the Constitution. And, yes, there is powerful evidence that the President can be covered by the term “Office.” No one doubts that the President can be impeached. And so, no one should doubt that the term “Office” in the Foreign Emoluments Clause can easily be interpreted to cover an elected official like the President. Article II, Section 4 provides that the President “shall be removed from Office by Impeachment” for “high crimes and [m]isdemeanors.” Article I, Section 3, Clause 7 provides that the “Judgement in cases of Impeachment shall not extend further than to removal from Office.” This falsification procedure allows us to see that the claimed textual enrichment is not the “only possible” interpretation; in fact, it is not a terribly plausible enrichment at all: even President Trump’s lawyers now admit that the Foreign Emoluments Clause does in fact cover the President.

I trust the fair minded reader and, in time, even Professor Nourse, will not object to my stating that Nourse does not actually understand my position in regard to the Constitution’s divergent Office-language. Because she does not understand it, she fails to fairly characterize it. Although, I wholeheartedly agree with the textual falsification method put forward by Professor Nourse, she has not actually falsified anything I have argued. It might help the reader if I point out that at no point does Nourse ever quote any actual language from any of my publications where I take the positions which she incorrectly asserts are mine.

First, Professor Nourse states that my view is that the term “Office,” as used in the Constitution, does not extend to the President. I have made no such claim. After all, such a position is a nonstarter: the Constitution (Art. II, Sec. 1) squarely states the President holds an “office.” What could be more clear? Rather, my view is that the President does not hold an “office . . . under the United States.”  (My position is aptly summarized by Professor William Baude on Jotwell, including a helpful chart.)

Second, Nourse states that my view is that the term “Office,” as used in the Constitution, “applies to unelected members of the executive branch.” I have made no such claim. My view is that Office and officer, standing alone without modifiers, include those holding office under the United States (i.e., appointed positions in all three branches) as well as those holding certain elected positions: e.g., President, Speaker of the House, and Senate President Pro Tem. (My view is that rank-and-file members of Congress, in the House and Senate, are not encompassed by the word “Office,” as used in the Constitution.)

Third, after telling her readers that my position is that “Office” means the same throughout the Constitution, Nourse tells her readers that I claim to have found support for my position among other scholars who take the same position. This also is not correct. I report the position others to distinguish my position from their position. These other scholars have argued that the Constitution’s divergent Office-language is coextensive. I disagree with that position. My position is that divergent language accommodates different meanings.

Fourth, Nourse states that “This falsification procedure [which she puts forward] allows us to see that the claimed textual enrichment [put by forward by Tillman] is not the ‘only possible’ interpretation . . . .” I ask: Why is “only possible” in quotation marks? Who is she quoting? Given that the only scholarship she is discussing in that section of her paper is my scholarship, the reader is likely to think I am being quoted. Nourse cites only a single Tillman-authored publication, and I do not use the quoted language in my article.

For what it is worth, I do not believe that by interpreting the text of the Constitution, standing alone, one ought to conclude that there is only a single possible interpretation in regard to the Constitution’s divergent Office-language. In fact, I have repeatedly made a very different claim. In my Northwestern University Law Review article, which is my only publication actually cited by Nourse, I stated:

I do not suggest that the Constitution’s text, drafting history, and ratification debates are free from all ambiguity on the meaning of Office . . . under the United States. Fortunately, we can turn to two incidents from President George Washington’s first Administration to understand the meaning of this somewhat opaque phrase.

My position is that where the constitutional text is ambiguous, one turns to early practice and history. I would add that the practices of George Washington and his administration, and that of the First Congress are entitled to special consideration. My methodological outlook is hardly an outlier.

Finally, Nourse concludes that my use of intratextualism (with its assumptions of coherence) is methodologically unsound, and that my conclusion in regard to the scope or reach of the Foreign Emoluments Clause is not “terribly plausible.” My response, beyond what I have written above, is that my using intratextualism in this fashion predates my publications, predates original public meaning originalism, and even predates original intent originalism. It is far older.

In his Commentaries on the Constitution, Justice Joseph Story wrote:

[T]he [Impeachment] [C]lause of the Constitution now under consideration does not even affect to consider the[] [President and Vice President] officers of the United States. It says, “the President, Vice-President, and all civil officers (not all other civil officers) shall be removed,” &c. The language of the clause, therefore, would rather lead to the conclusion that they were enumerated, as contradistinguished from, rather than as included in the description of civil officers of the United States. Other clauses of the Constitution would seem to favor the same result, particularly the clause respecting appointment of officers of the United States by the executive, who is to “commission all the officers of the United States;” and the sixth section of the first article which declares that “no person holding any office under the United States shall be a member of either house during his continuance in office;” . . . .

In short, Story concludes that the President is neither an officer of the United States nor holds an Office under the United States (which is a superset of the Foreign Emoluments Clause’s more limited Office of Profit or Trust under the United States-language). At the very least, Story thinks this position is plausible and supported by the text of the Constitution. Indeed, although not discussed by Story, the drafting history of the Impeachment Clause also confirms Story’s interpretation: an early draft of the Impeachment Clause applied to “other Civil officers of the U.S.,” but the “other” was dropped by the Committee of Style.  Nor was Story alone—a fair number of later commentators followed Story’s lead.  Nourse says (in effect that) Story’s view (a view with which I agree) is not plausible. But saying that it is implausible does not make it so; nor does her more strongly condemnatory language.