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31 posts from April 2018


John Fabian Witt: A Lost Theory of American Emergency Constitutionalism

John Fabian Witt (Yale Law School) has posted A Lost Theory of American Emergency Constitutionalism (Law & History Review, 36:3, forthcoming) on SSRN.  Here is the abstract:

In the wake of the Civil War, Columbia Law School professor Francis Lieber, architect of some of the Lincoln administration's most important legal strategies, set out to write a definitive text on martial law and the emergency power. Lieber’s text would have summed up his view of the legal lessons of the Civil War. Lieber died in 1872, leaving an unfinished manuscript to his son, Guido Norman Lieber, soon to become the Judge Advocate General of the Union Army. Norman Lieber worked on the manuscript but never finished it. Hidden deep in the younger Lieber’s papers in the National Archives, the manuscript summarizes a strand of thinking about constitutional emergencies that first emerged in the controversies over slavery, then animated Emancipation and the broader legal strategy of the Lincoln White House, before running headlong into the post-war backlash signaled by the Supreme Court’s 1866 decision in Ex Parte Milligan. Building on debates over martial law in Anglo-American empire, the Liebers’ thinking embraced a forceful but constrained approach that made a cabined form of necessity the central principle of emergency governance in the modern state.


Jed Shugerman on Scalia's Morrison v. Olson Dissent
Michael Ramsey

At Slate, Jed Shugerman (Fordham): Stare Scalia: Republican senators’ obsession with Antonin Scalia is leading them to make sloppy mistakes.  From the introduction: 

On Thursday, the Senate Judiciary Committee advanced a bill seeking to protect the special counsel from an unjustified removal on a bipartisan 14–7 vote, an important signal of support for Robert Mueller. Majority Leader Mitch McConnell, however, has promised not to bring the Special Counsel Independence and Integrity Act to the Senate floor, and his obstructionism has been bolstered by a bizarre legal claim by some of his Republican colleagues.

In Thursday’s debate on the motion, Sen. Ben Sasse made a stunning argument for voting no: “Many of us think we are bound” by Justice Antonin Scalia’s opinion in the 1988 case Morrison v. Olson. Sens. Orrin Hatch and Mike Lee expressed a similar reasoning for their “no” votes. It’s not a surprise for a senator to defer to Supreme Court decisions. But it is a shock for a senator to say he is bound by a lone dissent in a 7–1 Supreme Court case decided 30 years ago. There is a reason Scalia was all alone in dissent: He was wrong, and his historical assumptions were irredeemably wrong.

For a while, many conservatives and a handful of law professors have been trying to revive Scalia’s dissent, despite the fact that the court has continued to cite Chief Justice William Rehnquist’s majority as good law. Some even claim that it is one of the greatest dissents of all time. Unfortunately for their position, Scalia’s dissent was fundamentally wrong about American history, which should be a fatal flaw on his own originalist terms. ...

I do not find, however, that the subsequent discussion fulfills introduction's promise.  Moreover, it does not grapple at all with the centerpiece of Scalia's Morrison dissent, which is the Constitution's text -- that is, what does it mean to say that the "executive Power shall be vested" in the President?


Asher Steinberg on the Impending Demise of Chevron Deference
Michael Ramsey

At The Narrowest Grounds, Asher Steinberg: Does Anyone on the Supreme Court Believe in Chevron Anymore? A Squib on Chevron in SAS Institute.

[In SAS Institute v. Iancu, decided last Tuesday], the petitioner proceeded to suggest that "[t]hose constitutional concerns [about Chevron] can be avoided here, however, either by holding that the Board’s practice of issuing partial final decisions fails Chevron step one, or by simply enforcing step two of Chevron by its terms . . . ."  Further still, the petitioner went on to argue that the constitutional concerns with Chevron could not only be avoided in its case were the Court to not defer to the Patent Office, but that Chevron was perfectly constitutional if correctly applied, concluding: "In short, Chevron can survive, and remain consistent with 'the Constitution of the framers' design,' [here quoting from then-Judge Gorsuch's concurring opinion in Gutierrez-Brizuela recommending Chevron's overruling] if its steps are enforced with vigor."

In his [majority opinion in SAS Institute], Justice Gorsuch summarizes this take on Chevron in a curious way, as a "suggest[ion] that we might use this case to abandon Chevron and embrace the ‘impressive body’ of pre-Chevron law recognizing that ‘the meaning of a statutory term’ is properly a matter for ‘judicial [rather than] administrative judgment.’"  Slip op. at 14 (quoting Petitioner's Br. at 41 (quoting Pittston Stevedoring Corp. v. Dellaventura, 544 F.2d 35, 49 (2d Cir. 1976) (Friendly, J.))).  He then goes on to write that, because the statute is clear, "whether Chevron should remain is a question we may leave for another day."  This is curious in a couple ways.  

First, the petitioner never suggested abandoning Chevron, but rather only noted "powerful [constitutional] arguments" to do so and ultimately both argued that the Court should avoid deciding Chevron's constitutionality and that Chevron, properly applied, is a constitutional standard under which the petitioner would win.  Justice Gorsuch would appear to be so interested in overruling Chevron that he's reading requests to overrule it into litigants' briefs  that aren't quite there, thereby availing himself of an opportunity to suggest in an opinion for the Court that "whether Chevron should remain" is a live question.

Second, and along similar lines, his quotation from the petitioner's brief repeats, and if anything substantially enhances, the deceptiveness of petitioner's selective quotation of Judge Friendly.  Judge Friendly's opinion in Pittston Stevedoring is famous for its description of pre-Chevron deference doctrine as an incoherent mess, not for its description of a cohesive "impressive body" of pre-Chevron law that rejected deference to agency statutory interpretation.  ...


The majority opinion's conjuring of a phantom attack on Chevron, and of an impressive body of Judge-Friendly-endorsed, anti-deference, pre-Chevron doctrine, though odd, is probably less odd than the lead dissent's commentary on Chevron.  Justice Breyer's dissent proposed that the Court defer under Chevron to the Patent Office's regulation.  In a paragraph of his dissent joined by Justices Ginsburg and Sotomayor, but not by Justice Kagan, who otherwise joined his dissent in full, Justice Breyer pauses to offer the following remarkable interpretation of Chevron before explaining why he would defer to the Patent Office ...

And in conclusion:

In any event, after SAS Institute there is really only one Justice, Justice Kagan, who is committed on paper to upholding Chevron.  Two members of the Court, Justice Thomas and Justice Gorsuch, have argued that deference to administrative agencies on statutory interpretation is unconstitutional; another three members, Chief Justice Roberts and Justices Kennedy and Alito, joined the former's dissent in City of Arlington, which argued that courts must somehow decide, in the case of every ambiguity in a statute over which an agency has general rulemaking authority, whether Congress implicitly delegated gap-filling authority to the agency as to that particular ambiguity; and Justice Breyer, now joined by Justices Ginsburg and Sotomayor, has argued much the same thing, albeit of course in a more distinctively Breyerian Legal-Process-School-influenced way.

Lots more detail in the post.


Executive Discretion the Travel Ban Case
Michael Ramsey

At Dorf on Law, Michael Dorf sums up the argument on the travel ban case (argued at the Supreme Court on Wednesday):

Travel Ban 3.0 poses a non-trivial constitutional question because: (1) It is clear to any reasonable observer that Trump's anti-Muslim animus was a but-for cause of each version of the Travel Ban; and (2) the Ban has a clear disparate impact on Muslims; but (3) to produce Travel Ban 3.0, the government--including many people who probably do not harbor anti-Muslim bias--did some homework so that it could have a national security justification. If this were a case arising in any other context, the clear import of (1) and (2) would be that the courts would strictly scrutinize the government's justification in (3). The hard question is how to blend the strict judicial scrutiny that ordinarily applies to religious discrimination with the deferential scrutiny that courts apply to assertions of a national security interest by the executive branch.

I think, though, that his point (1) overstates, and so his framing of the question fails.  Consider the following hypothetical conversation:

PRESIDENT:  I want to prevent radical Islamic terrorism in the United States.  Let's just ban all Muslim travel to the US.  That should do it.

ADVISER: Well, OK, boss, but have you considered that most Muslims are not terrorists and in fact probably hate terrorism as much or more than we do?

PRESIDENT:  Good point.  Let's just ban travel from countries where there are lots of terrorists.  How about this? [Hands adviser a list of countries written on a napkin].

ADVISER: Sure, but I see Iraq is on your list, and while there are some bad guys there, the government is friendly to us and lots of Iraqis have helped us in the past so it seems a little unfair.

PRESIDENT:  Fine, take Iraq off the list.

ADVISER:  Might I suggest, sir, that this list is a little, shall we say, ad hoc?  Perhaps you could ask the DHS to investigate which countries really pose the biggest threat.  Then the list would have some basis in, um, reality.

PRESIDENT:  You take all the fun out of this job.  But OK, let's do that.

I can't say that this approximates what actually happened in the evolution of the actual travel ban.  And I wouldn't say it's a good way to make national security policy.  But I do think it's plausible account (especially to anyone who's worked with a somewhat impulsive and temperamental  boss).  And if so, I don't think we can say that "[i]t is clear to any reasonable observer that Trump's anti-Muslim animus was a but-for cause of each version of the Travel Ban."  Rather, a reasonable observer might conclude that the President's desire to prevent Islamic terrorism was the but-for cause, that initially his proposed solution was wildly overinclusive, and that he was gradually persuaded to adopt a more modest position.

Of course, it's also possible that the President/adviser dialogue had a more sinister tone, with the President insisting that we must keep out as many Muslims as possible and the adviser trying to craft a pretext.  But choosing among these accounts involves a high degree of speculation.

What does this have to do with originalism?  I think it is a basic proposition of the original separation of powers, reflected in Marbury v. Madison, that the judiciary does not supervise the exercise of the President's discretion (generally, but especially in national security matters).  To be clear, the judiciary can and should intervene if the President's actions exceed the limits of the Constitution.  (Regular readers know I don't think much of expansive versions of the political question doctrine.)  But if the judicial inquiry reduces to speculation about the President's motivations rather than measuring the President's actions against the Constitution's requirements, I think we would have inappropriate judicial supervision of executive discretion.  Since the travel ban is neutral on its face (as to religion) and plausibly neutral in origins, I don't see an originalist judicial license to go further.

Professor Dorf invokes the Korematsu decision, but Korematsu is entirely different.  Korematsu was wrong on originalist grounds because on its face it does not comport with due process of law to deprive a whole class of U.S. citizens of their property, force them out of their homes and send them to prison camps in the desert just because there was some speculation that some of them might possibly have been spies or saboteurs.  That conclusion doesn't turn on speculation regarding the President's motives.  The President might have had the purest motives in Korematsu; the decision would remain abominably wrong in assessing his actions.  In contrast, assuming the travel ban would otherwise be constitutional, the challengers seek to turn a constitutional policy into an unconstitutional one based only on speculation about presidential motivation.

UPDATE: A more precedent-riven analysis from Josh Blackman: The Easy Way Forward on Trump v. Hawaii.  On the executive power issue:

I have  that the Supreme Court’s domestic establishment clause precedents simply do not apply in the immigration context, and I noted today that there was no indication from the justices today that such precedents, including McCreary County v. ACLU of Kentucky or the dreaded Lemon v. Kurtzman, apply. (Recall that Kennedy joined Justice Antonin Scalia’s dissent in .) Rather, the controlling precedent is [Kleindienst v.Mandel. And Mandel only asks if the policy is “facially legitimate and bona fide.” There are two ways of reading this phrase. Does the word “facially” modify only “legitimate,” or does it modify both the words “legitimate and bona fide”? (I discussed this question in depth .)

If the court holds that “facially” modifies both phrases, then the resolution of this case is straightforward. Such a holding would be . The four corners of the presidential proclamation are, without question, “legitimate” and “bona fide.” Neal Katyal, arguing for Hawaii, conceded during arguments that if then-candidate and now-President Trump had not made the statements that he made, the establishment clause question would vanish. A review of the four corners of the document is apiece with not considering Trump’s statements.


More on Gorsuch and the Dimaya Case
Michael Ramsey

At RealClear Policy, Nathan Chapman (Georgia): Neil Gorsuch and the Return of Rule-of-Law Due Process,  From the core of the argument:

While the holding [in Dimaya] was perhaps unsurprising, Justice Gorsuch’s solo opinion, which provided the crucial fifth vote, was remarkable in every way. It reveals a lot about Gorsuch as a constitutional jurist and reintroduces a cross-partisan notion of due process as a guarantee of the rule of law.

First, Gorsuch’s opinion was deeply originalist. His judgment was based on a searching review of legal materials that would have been familiar to jurists at the time of our country’s founding, including a number of early state and federal cases declining to apply vague statutes. His conclusion? The “void for vagueness doctrine … serves as a faithful expression of ancient due process and separation of powers principles the framers recognized as vital to ordered liberty under our Constitution.” Based on this opinion, Gorsuch appears to be every bit as committed to an originalist approach to constitutional interpretation as his predecessor, Justice Scalia, was — perhaps more so.

Second, Gorsuch married careful historical scrutiny with candor and sensitivity for how our legal system has changed over time. This is where he and Justice Thomas parted ways. Thomas’s dissenting opinion provides a careful historical argument against invalidating vague laws for lack of due process. He thinks such laws may be forbidden by the separation of powers, but not by the Due Process Clause. And, in any case, he thinks the courts should rarely invalidate a vague law, choosing instead to decline to enforce where it does not clearly fit the facts. This is a sensible view of the historical material, but it gives no weight to numerous changes to the legal system since the Founding. One cannot return to the Founding era’s constitutional understanding on a retail basis without unbalancing subsequent wholesale legal changes. ...

For a different view, Mark Pulliam at American Greatness: Has Gorsuch ‘Gone Wobbly’ Already?

Surprisingly, many legal scholars—even those on the Right—have applauded Gorsuch’s decision in Dimaya. I disagree. Even though I am a Gorsuch fan (e.g.here and here), I believe the dissenters in Dimaya were correct. ... As a policy matter, legislators should write statutes as clearly as possible, so that those subject to the law have fair notice of its commands. This principle is especially important in penal statutes, when imprisonment is a possibility.  

The problem, however, is the Constitution does not necessarily dictate the “ideal” result from a policy standpoint. “Originalism,” which the court’s conservatives purport to follow, means that the Constitution should be interpreted in accordance with its original meaning, not based on the justices’ personal policy preferences.

The Constitution—itself full of imprecise terms such as “unreasonable searches and seizures”—does not address the subject of “vagueness.” The court’s “void for vagueness” case law (of which Johnson is an example) is based on the due process clause of the Fifth Amendment, but the most straightforward view is that the Framers understood “due process” to require only procedural fairness (such as an impartial hearing). A poorly drafted statute will rarely result in a denial of procedural due process, as Justice Alito explained in his dissent in JohnsonJohnson is not dispositive in any event.

Unlike JohnsonDimaya was an immigration case, not a criminal case. The statute in question, Section 16(b) of the Immigration and Nationality Act (INA), authorizes the deportation of foreign nationals who are convicted of specified violent crimes. Deportation—a civil matter—is not the same as imprisonment, and foreign nationals do not enjoy the same constitutional rights as citizens. Even if Johnson was correctly decided (and I think Alito’s dissent makes the far stronger case), it does not support—let alone compel—the result in Dimaya. A noncitizen facing deportation from the United States for committing aggravated felonies (as defined in the INA) is not entitled to the same “due process” as a citizen charged with a felony, facing either imprisonment or an enhanced prison sentence.

And further:

Why, then, did so many right-of-center scholars praise Gorsuch’s erroneous decision? (E.g., hereherehereherehere, and here.) At the risk of stepping on some toes, I’ll offer several theories, in no particular order of primacy.

Libertarians, who greatly outnumber traditional conservatives in the legal academy, place little importance on maintaining national sovereignty; indeed, the leading libertarian think tank, the Cato Institute, unabashedly advocates open borders. Libertarians at Cato and elsewhere also support an aggressive judicial role in overseeing the political branches (sometimes called “judicial engagement”).  Result-oriented scholars tend to cheerlead for judges doing their bidding, and Beltway pundits and think tanks serve as the cheerleading squad.

Moreover, the current generation of right-of-center legal scholars (even the small number of conservatives and classical liberals) have largely abandoned the “judicial restraint” advanced by Robert Bork and Lino Graglia in favor of a “new originalism” that critics contend is just a disguised version of the Left’s “living Constitution,” allowing inventive constitutional law theorists to devise pseudo-historical arguments justifying policy outcomes they find congenial. Skeptics sometimes deride this as “law office history.”

(Thanks to Andrew Hyman for the pointer).

I must again protest the division of the originalist world into (as the last quoted paragraph says) "the 'judicial restraint' advanced by Robert Bork and Lino Graglia" and "a 'new originalism' that critics contend is just a disguised version of the Left’s 'living Constitution.'"  There is an intermediate position, surely represented by Justice Scalia and perhaps by Justice Gorsuch, that is not restrained in the Graglia sense (that is, it is very willing to rule against the political branches where the Constitution's original meaning warrants it) but is also far from living constitutionalism.


ATS Originalism from Justice Gorsuch
Michael Ramsey

Jesner v. Arab Bank, decided by the Supreme Court yesterday, rejected a claim under the Alien Tort Statute (ATS) by foreign plaintiffs against a foreign bank.  (SCOTUSblog analysis here).  Justice Gorsuch wrote an opinion concurring in part and concurring in the judgment, focused on the original meaning to the ATS and Article III of the Constitution.  I'm happy to say his analysis is similar to the approach I took in a post on the case for the Just Security blog (see also here, on this blog).  The basic argument is that the original meaning of Article III did not allow suits between alien plaintiffs and alien defendants where no federal question existed; at the time of enactment, no one would have understood a federal question to exist in Jesner because (a) the ATS is only jurisdictional and does not itself create a federal cause of action, and (b) courts acting pursuant to the ATS would have been understood to be applying general common law, which (in the eighteenth century) was not understood as federal law.

Here's Gorsuch's analysis (from Part II, footnotes omitted):

Respectfully, I do not think the original understanding of the ATS or our precedent permits federal courts to hear cases like this [involving foreign plaintiffs and foreign defendants]. At a minimum, both those considerations and simple common sense about the limits of the judicial function should lead federal courts to require a domestic defendant before agreeing to exercise any Sosa-generated discretion to entertain an ATS suit.

Start with the statute. What we call the Alien Tort Statute began as just one clause among many in §9 of the Judiciary Act of 1789, which specified the jurisdiction of the federal courts. 1 Stat. 76–78. The ATS clause gave the district courts “cognizance, concurrent with the courts of the several States, or the circuit courts, as the case may be, of all causes where an alien sues for a tort only in violation of the law of nations or a treaty of the United States.”  Like today’s recodified version, 28 U. S. C. §1350, the original text of the ATS did not expressly call for a U. S. defendant. But I think it likely would have been understood to contain such a requirement when adopted.

That is because the First Congress passed the Judiciary Act in the shadow of the Constitution. The Act created the federal courts and vested them with statutory authority to entertain claims consistent with the newly ratified terms of Article III. Meanwhile, under Article III, Congress could not have extended to federal courts the power to hear just any suit between two aliens (unless, for example, one was a diplomat). Diversity of citizenship was required. So, because Article III’s diversity-of-citizenship clause calls for a U. S. party, and because the ATS clause requires an alien plaintiff, it follows that an American defendant was needed for an ATS suit to proceed.

Precedent confirms this conclusion. In Mossman v. Higginson, 4 Dall. 12, 14 (1800), this Court addressed the meaning of a neighboring provision of the Judiciary Act. Section 11 gave the circuit courts power to hear, among other things, civil cases where “an alien is a party.” 1 Stat. 78. As with §9, you might think §11’s language could be read to permit a suit between aliens. Yet this Court held §11 must instead be construed to refer only to cases “where, indeed, an alien is one party, but a citizen is the other.” Mossman, 4 Dall., at 14 (internal quotation marks omitted). That was necessary, Mossman explained, to give the statute a “constructio[n] consistent” with the diversityjurisdiction clause of Article III. Ibid. And as a matter of precedent, I cannot think of a good reason why we would now read §9 differently than Mossman read §11. Like cases are, after all, supposed to come out alike. See Sarei v. Rio Tinto, PLC, 671 F. 3d 736, 828 (CA9 2011) (Ikuta, J., dissenting) (“Mossman’s analysis [of §11] is equally applicable to [§9]. . . . ATS does not give federal courts jurisdiction to hear international law claims between two aliens”), vacated and remanded, 569 U. S. 945 (2013).

Nor does it appear the ATS meant to rely on any other head of Article III jurisdiction. You might wonder, for example, if the First Congress considered a “violation of the law of nations” to be a violation of, and thus “arise under,” federal law. But that does not seem likely. At the founding, the law of nations was considered a distinct “system of rules, deducible by natural reason, and established by universal consent among the civilized inhabitants of the world,” 4 Blackstone 66. While this Court has called international law “part of our law,” The Paquete Habana, 175 U. S. 677, 700 (1900), and a component of the “law of the land,” The Nereide, 9 Cranch 388, 423 (1815), that simply meant international law was no different than the law of torts or contracts—it was “part of the so-called general common law,” but not part of federal law. Sosa, 542 U. S., at 739–740 (opinion of Scalia, J.). See Bradley & Goldsmith, Customary International Law as Federal Common Law: A Critique of the Modern Position, 110 Harv. L. Rev. 815, 824, 849–850 (1997); see also Young, Sorting Out the Debate Over Customary International Law, 42 Va. J. Int’l L. 365, 374–375 (2002).

Gorsuch goes on to  point out that admiralty and maritime claims (especially piracy) and assaults on ambassadors -- two situations in which the founding generation likely was concerned about alien-versus-alien suits -- are covered by other provisions of the 1789 Judiciary Act.  I would add that other alien-versus-alien suits weren't foreclosed altogether; they just had to proceed in state court rather than federal court, as the Supreme Court said in Mossman.  The design of Article III strongly indicates that the framers were comfortable with keeping alien-versus-alien suits in state court, apart from the special cases of admiralty/maritime suits and suit affecting ambassadors.  Had they thought otherwise, they easily could have included alien-versus-alien claims in the section of Article III establishing diversity jurisdiction.

RELATED:  I joined an amicus brief of International Law and Foreign Relations Law scholars in support of Arab Bank, making the broader point that allowing suits of this type runs counter to the original purposes of the ATS.  Justice Alito cited the brief in his concurrence.  Congratulations to Samuel Estreicher (NYU), the principal author of the brief.


John McGinnis on Justice Gorsuch's Originalism in the Dimaya Case
Michael Ramsey

At Liberty Law Blog, John McGinnis: Gorsuch’s Originalist Exploration of the Legal Meaning of Due Process.  It begins: 

The press has been spinning Justice Gorsuch’s vote in favor of a resident alien in Dimaya v. Sessions as a surprising decision to side with the liberal justices. But that storyline misses out on the real significance of his action, which lies in his opinion, not his vote, however decisive. That opinion shows instead that he will be a sophisticated modern originalist, at least where precedent does not dictate otherwise, no matter where that originalism takes him.


First, Gorsuch reads due process as part of the language of the law. As Mike Rappaport and I have noted, if due process is read, as it can be, in ordinary language, the term would appear to mean something like fair procedure, a pretty open-ended concept. Instead, Gorsuch interprets it as requiring “customary procedures to which freemen were entitled by the old law of England.” And he finds that fair notice was something to which freemen were entitled and which courts enforced. This is a legal reading of due process, much like one the Laura Donohue gives to “reasonableness” under the Fourth Amendment, which requires searches to follow the strictures of the common law.

Gorsuch also notes that many of the other provisions of the Constitution seem to depend laws being reasonably clear. For instance, the right to a lawyer is not much help if the law is very vague. This kind of analysis shows that originalism at its best considers a provision in light of the rest of the Constitution to resolve ambiguity or uncertainty. Gorsuch also argues that this reading better comports with the separation of powers. Vague statutes allow Congress to delegate core legislative responsibilities. I would also note that judges around the time of the Framing applied separation of powers principles to help fix the meaning of constitutions, as in the Kamper v. Hawkins. This is an interpretive principle that may well have been deemed applicable to the Constitution. It would then be an original method of interpretation.


Kenneth Jost on Indeterminate Originalism and the Dimaya Case
Michael Ramsey

At Jost on Justice, Kenneth Jost: At Supreme Court, Originalism's Illusory Promise Exposed.  From the beginning: 

Originalists promise in part that originalism can yield definite answers to hard legal issues and thus force judges to decide cases solely on the basis of law instead of their personal views. But the promise is an illusion, as seen in the dueling opinions of the two originalist justices Clarence Thomas and Neil Gorsuch in the Supreme Court's closely divided decision last week [April 17] in an important immigration law case.

Thomas and Gorsuch clashed on the question of whether the Due Process Clause authorizes courts to strike down laws as unconstitutional on account of vagueness. The two justices came out on opposite sides of the 5-4 decision in Sessions v. Dimaya, with Gorsuch joining the four liberal justices in ruling in favor of the immigrant in the case. Thomas joined with three other conservatives in the main dissent and wrote a separate, history-based dissent for himself alone.

I've responded to the indeterminacy argument many times, but it keeps getting made, so one must continue responding.  Originalism does not claim that it will eliminate indeterminacy nor that it will "yield definite answers to hard legal questions" in all cases.  Originalism does frequently claim that it will "yield definite answers to hard legal questions" in some cases.  (If it didn't, there wouldn't be much point to it.)  The fact that Justices Gorsuch and Thomas wrote dueling originalist opinions in the Dimaya case does nothing to undermine originalism's modest claim that sometimes it resolves hard cases.  Originalism's "definiteness" argument is that it can objectively resolve hard cases more often that an approach based on judges' sense of the best outcome. 

Relatedly, originalism does not claim that it can eliminate judicial reference to personal views; it claims that it can do a better job of eliminating judicial reference to personal views than an approach that (expressly or implicitly) appeals to judges' personal views.  I don't see how the Gorsuch/Thomas debate in Dimaya undermines this claim at all.  I see no reason to think their disagreement was motivated by the Justices' personal views about the best policy outcome for the case as opposed to their views about the best reading of the Constitution's original meaning.  Originalism's objective, even where the answer is not clear, it to make the debate about something apart from the judges' preferred policy outcome.

If you want to show that originalism is indeterminate in all (or most) hard cases, it's not enough to point to one case where originalists disagree.  You need to tackle issues on which originalists mostly agree and show why they are wrong.

I should note that the later part of the post is quite fair, quoting several leading originalist scholars: 

Commenting on the two opinions [by Thomas and Gorsuch in Dimaya], Evan Bernick, a lecturer at Georgetown Law School and a fellow with the school's originalist Center on the Constitution, sees "not a lot of difference" between Thomas and Gorsuch. Thomas, he explains, would apply vagueness doctrine "on a retail basis" — one case at a time — while Gorsuch would strike down a vague law in its entirety as serving the original purpose of the Due Process Clause.

Eric Segall, a law professor at Georgia State University and a sometime critic of originalism, sees the difference between the two justices as an example of the difference between an "old" originalism that emphasized judicial deference and a "new" originalism better disposed to so-called "judicial engagement." The shift, in Segall's view, shows that originalism has become "a political symbol" more than a legal methodology. "Once you say no deference," he explains, "given the indeterminacy of history, originalism will not be able to limit judicial choices."

Bernick and other originalists, such as Case Western Reserve law professor Jonathan Adler, reject the criticism. "No method of interpretation is entirely determinate," Adler replies. Originalism constrains the range of outcomes in constitutional cases, he argues, "but it does not reduce every single case to a single permissible outcome." Bernick similarly views originalism as "marginally more discretion-reducing" than other methods of constitutional interpretation.

(Via How Appealing.)

RELATED:  George Will also has a column on Gorsuch and DimayaGorsuch Strikes a Blow against the Administrative State.  From the core of the discussion:

Gorsuch wrote:

Vague laws “invite the exercise of arbitrary power” by “leaving the people in the dark about what the law demands and allowing prosecutors and courts to make it up.” The lack of “precise and sufficient certainty” (criteria stipulated by the English jurist William Blackstone, whose writings influenced the Constitution’s Framers) invites “more unpredictability and arbitrariness” than is constitutional. Furthermore, the crux of America’s constitutional architecture, the separation of powers, is implicated. All legislative power is vested in Congress. The judicial power, Gorsuch wrote, “does not license judges to craft new laws” but only to discern and follow an existing law’s prescribed course. With the fuzzy “crime of violence” category, Congress abdicated its “responsibilities for setting the standards of the criminal law.” So, allowing vague laws would allow Congress “to hand off the job of lawmaking.” Hence such laws not only illegitimately transfer power to police and prosecutors but also would “leave it all to a judicial hunch.”

The principle Gorsuch enunciates here regarding one provision of immigration law is a scythe sharp enough to slice through many practices of the administrative state, which translates often vague congressional sentiments into binding rules, a practice indistinguishable from legislating. Gorsuch’s principle is also pertinent to something pernicious concerning which he has hitherto expressed wholesome skepticism: “Chevron deference.”

And in conclusion:

Gorsuch represents the growing ascendency of one kind of conservative jurisprudence, “judicial engagement,” over another kind, “judicial deference.” Many conservatives have embraced populism where it least belongs, in judicial reasoning. They have advocated broad judicial deference to decisions because they emanate from majoritarian institutions and processes. Progressives favor such deference because it liberates executive power from congressional direction or judicial supervision. Gorsuch, a thinking person’s conservative, declines to be complicit in this, which raises this question: When has a progressive justice provided the fifth vote joining four conservative colleagues?

Well, just off the top of my head, Van Orden v. Perry (the Ten Commandments/establishment clause case): Rehnquist, Scalia, Kennedy, Thomas and Breyer.  But still, a fair point.

Also, I think the judicial engagement/judicial deference point is overdone.  I suspect it arises from some not-always-well-considered populist rhetoric in some of Justice Scalia's most famous opinions.  But Scalia did not really believe in judicial deference; he believed courts should not interfere with the political branches when the Constitution did not authorize them to.  His view was rooted in separation of powers, not in majoritarianism.  Nor did he, in general, "defer" to the political branches; he simply declined to intervene absent a constitutional directive to do so.  But a list of Scalia opinions invoking judicially enforceable limits on the political branches would take up many pages.


Stephen Griffin: Presidential Impeachment in Partisan Times
Michael Ramsey

Stephen M. Griffin (Tulane University Law School) has posted Presidential Impeachment in Partisan Times: The Historical Logic of Informal Constitutional Change (51 Connecticut Law Review __ (forthcoming 2018)) on SSRN.  Here is the abstract:

The unconventional presidency of Donald Trump has made presidential impeachment once again an issue of national concern. But do legal scholars have a good grasp on what happened in past presidential impeachments with respect to the meaning of the constitutional standard (“high crimes and misdemeanors”)? In this essay, I argue that prior scholarship has largely ignored the historical context and thus the real lessons of the three most prominent instances in which Congress attempted to impeach and convict a president: those of Andrew Johnson, Richard Nixon, and Bill Clinton. The essay then goes beyond these historical episodes to make a contribution to the ongoing debate in constitutional theory over theories of informal constitutional change.

Impeachment scholarship has been predominantly originalist. There is a large measure of consensus on the meaning of the “high crimes and misdemeanors” standard, which I call the “Hamiltonian vision.” The Hamiltonian vision is that impeachment can be used for a broad category of “political” offenses. Most scholars agree that impeachment does not require Congress to allege an indictable offense or other violation of law. Despite this scholarly consensus, the historical reality of the Johnson, Nixon, and Clinton impeachments is quite different. Contrary to prior legal scholarship, I argue that a party-political logic overwhelmed the framers’ design and created a situation in which the position that impeachment is limited to indictable offenses could not be effectively discredited.

I use the example of impeachment to generalize about the process of informal constitutional change and understand what I call its “historical logic.” The essay goes beyond a simple reaffirmation of living constitutionalism to advocate the value of an alternative methodology called “developmental” analysis. Developmental analysis makes explicit what is implicit in most work on living constitutionalism – that it rests on a historicist approach in which institutional changes such as political parties establish new constitutional baselines which are the practical equivalent of constitutional amendments. These baselines then form the new context going forward for evaluating the constitutionality of official action.


John Vlahoplus: Birthright Citizenship and Self-Government in Unincorporated Territories
Michael Ramsey

John Vlahoplus (Independent) has posted Other Lands and Other Skies: Birthright Citizenship and Self-Government in Unincorporated Territories (William & Mary Bill of Rights, forthcoming) on SSRN.  Here is the abstract:

By denying certiorari in Tuaua v. United States the Supreme Court declined to answer the question whether the Constitution confers birthright citizenship in unincorporated territories. Many believe that the question presents a fundamental conflict between individual rights and local self-determination. Denying birthright citizenship discriminates against those born in unincorporated territories, leaves their nationality to the grace of Congress, and extends the racist foundation of the Insular Cases beyond their express holdings. On the other hand, some fear that acknowledging birthright citizenship in unincorporated territories could undermine their self-determination by tightening equal protection constraints on their local governments.

This article argues that there is no fundamental conflict between birthright citizenship and self-government in unincorporated territories. English common law embodied in the original Constitution confers birthright citizenship and permits self-government there. Most of the principal objections to recognizing birthright citizenship were raised in England and rejected in the 1608 decision in Calvin's Case. The remainder are inconsistent with either the common law rule or American legal precedent. The extent to which equal protection doctrine constrains territorial governments is a separate constitutional issue.

Moreover, shortly after the ratification of the Fourteenth Amendment Congress recognized that the common law rule applied in the Oregon Country when it was self-governing, under joint occupation with Britain, and unincorporated under the later-invented standards of the Insular Cases. Congress then believed that Oregon was too distant and likely to separate into its own republic to become or remain a state and discouraged Americans from emigrating there by refusing to provide land grants or to promise statehood. It considered a variety of other destinies for the territory including a military and naval base, an independent republic, and a colony. In 1825 Senator Dickerson firmly resisted colonialism in opposing a proposal to erect military fortifications and extend U.S. revenue laws there:

"As yet, we have extended our laws to no territories, but such as were or are to become states of the Union. We have not adopted a system of colonization, and it is to be hoped we never shall. Oregon can never be one of the United States. If we extend our laws to it, we must consider it as a colony."

Congress rejected the proposal, and Oregon subsequently established its own organic government. Congress did not extend federal law to the Oregon Country until 1848 when it organized the territory and promised statehood by conferring the rights and obligations of the Northwest Ordinance on its residents. Congress abjured colonialism in Oregon only to embrace it later in the insular territories. Congress can correct that error by ceasing to exercise its jurisdiction over the remaining unincorporated territories, which could then constitute (or re-constitute) their own organic governments. The Oregon precedent of organic self-government combined with birthright American citizenship provides a model for self-governing territories that are affiliated with the United States but are neither states nor colonies.

RELATED:  The Tuaua case, mentioned in the abstract, was an unsuccessful constitutional claim to birthright citizenship by people born in American Samoa (an unincorporated territory); long-time readers may recall that I joined an amicus brief in support of the claimants and discussed the case on this blog (see here).  The issue is now pending in a new case filed in the District of Utah, Fitisemanu v. United States (apologies for the lack of a link).  I again joined a group of "Citizenship Scholars," led by Professor Sam Erman of USC Law School, in support of the claimants. In my view the originalist case for birthright citizenship in unincorporated territories is unassailable.