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36 posts from August 2018


Charles Zug on Carson Holloway on Originalism
Michael Ramsey

At Liberty Law Blog, Charles Zug (doctoral candidate, University of Texas, Austin): Toward a More Perfect Originalism: A Reply to Carson Holloway.  From the introduction: 

Brett Kavanaugh’s recent nomination to the Supreme Court has sparked renewed interest in the alternatives of “originalism” and “the living constitution”—what some conservatives are calling “A Battle of Two Constitutions.” Though it was written several months before Kavanaugh’s nomination, Carson Holloway’s eloquent and thought-provoking essay, “In Defense of Originalism” (published in Public Discourse April 3, 2018) constitutes a timely addition to this debate. Holloway’s particular defense of originalism bases that doctrine on the twin notions of “original intent” and “original public meaning.” While sound in many respects, Holloway’s defense contains several historical and theoretical weaknesses which defenders of living constitutionalism are likely to exploit—weaknesses which make an improved version of originalism more necessary than ever.


Broadly speaking, Holloway advises conservatives to double down, and turn to the thought of the founders—a sound injunction....

Less sound, however, is the particular version of originalism which Holloway seeks to vindicate. According to Holloway, “[o]riginalists hold that the Constitution should have a fixed meaning, that it ought to be interpreted according to the mind of those who wrote and ratified it.”

And in conclusion:

Holloway has done constitutional theory and American political thought a real service in further exploring the nuances of Constitutional originalism. Nevertheless, his particular defense of originalism—which relies on argumentative consensus rather than argumentative merit, and privileges founding intentions over founding arguments—leaves room for further improvement.


Reminder: Proposals for the 2019 Originalism Works-in-Progress Conference Are Due Tomorrow
Michael Ramsey

The Tenth Annual Hugh and Hazel Darling Foundation Originalism Works-in-Progress Conference will be held at the University of San Diego Law School on February 22-23, 2019.  Anyone wishing to present a paper should send an abstract to Professor Mike Rappaport (or me) by tomorrow, August 31, 2018.

A committee from the Center for the Study of Constitutional Originalism will select approximately seven papers, and presenters will be notified by early October.  Everyone interested in originalism scholarship (or anti-originalism scholarship) is invited to attend.

Podcast: Will Baude on "First Mondays"
Michael Ramsey

Via SCOTUSblog, this "First Mondays" podcast features Will Baude (Chicago/Volokh Conspiracy) "discuss[ing] the latest news of Judge Brett Kavanaugh’s nomination. Plus, what do we mean when we talk about originalism?"

More from Professor Baude at Volokh Conspiracy

In this episode, I put forth my proposal for improving judicial confirmation hearings and announced my views about Judge Kavanaugh: "He's an incredibly conscientious person, who I think has the right way of thinking of about the law, and it would be a travesty if he were not confirmed."

I got so little pushback on that point that we then spent a lot of time talking about originalism, judicial supremacy, and lots more. 


John Harrison: The Original Meaning of the Habeas Corpus Suspension Clause
Michael Ramsey

John C. Harrison (University of Virginia School of Law) has posted The Original Meaning of the Habeas Corpus Suspension Clause on SSRN.  Here is the abstract:

The Habeas Corpus Suspension Clause of Article I, Section 9, is primarily a limit on Congress’ authority to authorize detention by the executive. It is not mainly concerned with the remedial writ of habeas corpus, but rather with the primary right of natural liberty. Suspensions of the privilege of the writ of habeas corpus are statutes that vest very broad discretion in the executive to decide which individuals to hold in custody. Detention of combatants under the law of war need not rest on a valid suspension, whether the combatant is an alien or a citizen of the United States. The Suspension Clause does not affirmatively require that the federal courts have any jurisdiction to issue the writ of habeas corpus, and so does not interfere with Congress’ general control over the jurisdiction of the federal courts. The clause does not impose any limits on congressional authority with respect to the habeas corpus jurisdiction of state courts that would not exist in its absence.

UPDATE:  Kurt Lash calls attention to this methodological point (at pp 41-42 of the draft):

The reading presented here rests on an interpretive premise that I will identify but not defend. The premise is that when a legal text refers to an existing legal phenomenon, the text refers to the phenomenon, about which the enactors of the text may be mistaken. Someone who adopted a rule about suspensions of the habeas corpus, referring thereby to the British statutes that were called by that name, might have been in error about the content of those statutes. In my view, the reference is to the statutes, not the author’s incorrect understanding of them.

That approach may require the integration of facts about the law that no one at the time had brought together. While the association of suspension with executive discretion was well known when the Constitution was adopted, it may be that no individual had come to the conclusion that discretion is the feature that unites British and American suspensions. In order to understand the Suspension Clause, which refers to the legal practices that were called suspension of habeas corpus and similar names, that integration must be performed. The reading presented  here, which relies only on legal facts and concepts available at the time of the framing, may thus be both novel and true to the original meaning.


Confirmations and the Senate's Duty (Again)
Michael Ramsey

At Balkinization, Jason Mazzone: Still the President: Garland, Kavanaugh, Trump.  He argues: 

When, after the death of Justice Scalia in February of 2016, President Obama nominated Merrick Garland to the Supreme Court, Senate Republicans took the position that because Scalia had died in a presidential election year, the choice of the next Supreme Court justice should be made by the next President. They therefore refused to proceed with any consideration of the Garland nomination. Senate Republicans claimed their position had nothing to do with Obama or Garland but rather they were merely adhering to a longstanding tradition of not considering Supreme Court nominees in an election year. As Rob Kar and I showed, however, there was no such tradition Indeed, the tradition supported consideration of the Garland nomination. And, on the merits, we said, there was no constitutional basis for asserting a power (or duty) to divest a sitting President of his authority, under Article II, section 2, to “nominate . . . judges of the Supreme Court.” A President in his final year in office is still the President with all of the powers Article II gives him.

Here we go again.

Some Senate Democrats (who, two years ago, themselves complained about the way their Republican colleagues were treating Obama and Garland) say that consideration of Brett Kavanaugh to replace Justice Kennedy must be delayed until after the conclusion of the Mueller investigation. Their argument is that President Trump might have engaged in criminal conduct and, if so, he should not be choosing Supreme Court justices particularly given that the Court might be asked in the future to rule on an issue (for example, can a sitting President be indicted?) involving Trump himself. This argument should be soundly rejected.

Under Article II, there is “a President” who, unless removed from office, resigns, dies or becomes incapacitated, serves a fixed “term of four years.” During that “term,” the President “shall have Power” as defined by the Constitution. A President under investigation, indicted, and even (if it comes to it) convicted by a trial court is still the President. ...

I also want to be clear that my position has not changed since the Garland nomination, and it continues to be the exact opposite of Professors Mazzone and Kar.  I agree of course that the President has all the powers of the office even if he is in the final year of his presidency, is under investigation, or even is in the midst of impeachment.  But the President's power, as relevant to Supreme Court appointments, is to nominate, and if the Senate consents, to appoint.  The Senate refusing to consent does not deprive the President of these powers.  The Senate's decision to consent or withhold consent is not constrained by anything in Article II; it is entirely discretionary to the Senate.  The Senate may refuse to consent based on some particular attribute of the nominee or on some more general aspect of the situation it confronts.

Thus I argued in 2016 that the Senate could withhold consent on Judge Garland's nomination for reasons having nothing to do with Judge Garland individually; similarly the Senate could choose to withhold consent on Judge Kavanaugh's nomination for reasons having nothing to do with Judge Kavanaugh individually, including (for example) the possible conflict of interest arising from the potential issue of the President's criminal conduct.  This might be a breach of tradition or of protocol among the branches, and it might be punished politically by voters as being partisan and unwise, but nothing in the Constitution says it can't be done.

In sum, the advice-and-consent clause doesn't put any duties on the Senate at all.  It only provides that the President can nominate, and if the Senate gives its advice and consent, the President can appoint.  Correspondingly, if the Senate withholds advice and consent, for whatever reason or indeed for no reason, the President may not appoint.  That's it.


Michael Stern's Questions for Judge Kavanaugh
Michael Ramsey

At Point of Order, Michael Stern: Of Special Counsels and Congressional Investigations: Questions for Judge Kavanaugh. From the introduction:

I would like to propose a different line of questioning for Kavanaugh’s confirmation hearing, one that is not designed to score points for the pro-confirmation or anti-confirmation teams, but instead to illuminate the legal/constitutional framework within which allegations of presidential misconduct must be addressed. The jumping-off point for this discussion is Kavanaugh’s repeatedly expressed preference for congressional, rather than criminal, investigation of presidential misconduct. As we will see, this preference is not (or at least should not be) controversial, but it is in some tension with Kavanaugh’s efforts to hinder congressional oversight during his time as associate White House counsel.

And in substance:

To sum up briefly, these are the three most important points I would aim to establish during Kavanaugh’s confirmation hearing:

1.  According to Kavanaugh, Congress is or should be the sole entity to determine whether the conduct of a sitting president warrants a sanction. The special counsel should not (or perhaps constitutionally may not) indict or prosecute a sitting president. (I think Kavanaugh is right about this, but it is important that Congress and the general public understand this view).

2.  Congress must have investigatory powers as strong as (or stronger than) those of the special counsel, at least when it is investigating presidential misconduct. Kavanaugh has recognized that a special counsel has a right of broad access to executive branch information, and he should do the same for Congress. Whether or not Kavanaugh accepts this proposition (or will speak to it at all), it seems to me a logical corollary of the first point. Otherwise we would be in a “catch 22” situation where only Congress can judge the conduct of a president but only the special counsel has access to the information needed to make that judgment.

3.  During his time at the White House counsel’s office, Kavanaugh was a key architect/defender of legal positions allowing the Bush administration to withhold information from Congress, including with respect to several congressional investigations involving serious and credible allegations of executive branch wrongdoing (the campaign finance, Boston FBI and Clinton pardon investigations). Kavanaugh should be pressed to explain the apparent inconsistency between those positions and points 1 and 2 above by, for example, acknowledging that the Bush administration positions were ill-considered and/or distinguishing them on the grounds that they are inapplicable to an investigation of a sitting president.

SOMEWHAT RELATED: In the Washington Post, George Will also has some questions for Judge Kavanaugh (via How Appealing).  I don't think he'll answer those either.


More on the Space Force and the Constitution
Michael Ramsey

At Constitution Daily, Scott Bomboy: The Space Force and the Constitution (summarizing the blog debate among Michael Dorf, Ilya Somin, Mike Rappaport and me, also discussed on this blog here).  He adds that the Congressional Research Service has just released a report on the issue here: Toward the Creation of a U.S. “Space Force” (Aug. 16, 2018).  On the constitutional point, CRS observes:

Under the Constitution, authority over the Armed Forces is divided between the President and Congress. Under Article I, section 8, Congress has the power “To lay and collect Taxes ... to ... pay the Debts and provide for the common Defence,” “To raise and support Armies,” “To provide and maintain a Navy,” “To make rules for the Government and Regulation of the land and naval Forces,” and “To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States.” Further, Congress is empowered “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers ...” as well as “all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”

Congress also has virtually plenary constitutional power over appropriations, one that is not qualified with reference to its powers in Section 8. Article I, Section 9, provides that “No money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.” It is well established, as a consequence of these provisions, that “no money can be paid out of the Treasury unless it has been appropriated by an act of Congress” and that Congress can specify the terms and conditions under which an appropriation may be used, so long as the restrictions do not impair power inherent solely in other branches or otherwise run afoul of constitutional restrictions on congressional prerogatives. 

Article II of the Constitution vests the President with the “executive Power,” and appoints him “Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States.”

Accordingly, the constitutional framework appears to contemplate that the role of establishing, organizing, regulating, and providing resources for the Armed Forces belongs to Congress, while the President is in charge of commanding the forces Congress has established using the funds Congress has provided. It may conceivably be argued that congressional authority is limited to “land and naval forces,” including “Armies” and “the Navy” as well as the “Militia” (i.e., the reserve components), and thus would not extend to a new armed force operating primarily in the realm of space. The President’s commander-in-chief authority is similarly limited to the Army and Navy and activated reserve components. However, it is unclear whether a new Space Force would actually carry out functions in space or that its functions would be any different from those related to space operations already carried out by the various services. Given this uncertainty, it is possible that a Space Force would already constitute a land and naval force under the Constitution. Finally, it is of note that respective congressional and presidential authorities over the Air Force—which is not specifically mentioned in the Constitution—have not been historically called into question.

The report also says:

Congress could choose to establish a new military department with a new military service focused on space operations. The most recent establishment of a military department occurred in 1947, when Congress established the Department of the Air Force via the National Security Act of 1947. This act also transferred equipment, personnel, and installations from the Army Air Corps to the newly created Air Force. The statutory authorities required to establish a new department would likely be similar to those used for the Army (Subtitle B of Title 10), Navy (Subtitle C of Title 10), and Air Force (Subtitle D of Title 10).

This seems to leave open the question whether the President acting alone could establish a separate Space Force.


Brian Kogelmann & Alexander William Salter: Rawlsian Originalism
Michael Ramsey

Brian Kogelmann (University of Arizona - Department of Philosophy) and Alexander William Salter (Texas Tech University - Rawls College of Business; American Institute for Economic Research) have posted Rawlsian Originalism on SSRN.  Here is the abstract:

How should judges reason in a well-ordered constitutional democracy? John Rawls answered they ought to do so in accordance with public reason. We show this requirement is correct but inadequate. It permits too many disparate principles of constitutional interpretation. Intriguingly, Rawls himself suggests another criterion: any principle of constitutional interpretation must forestall the political stakes problem – the tendency for ordinary politics to become do-or-die affairs when de facto constitutional amendment can follow from majoritarian control. We consider two opposed interpretive principles, Originalism and Living Constitutionalism, which are both consistent with public reason. But only the former solves the political stakes problem. Originalism does this by striking down constitutional revisions that do not proceed according to de jure procedures. In contrast, Living Constitutionalism merely relocates the political stakes problem to whatever arena determines the selection of judges. We thus conclude, on Rawlsian grounds, that judges should be Originalists.

(Thanks to Laurence Claus for the pointer).


SCOTUSblog on Originalist Amicus Briefs
Michael Ramsey

At SCOTUSblog, William Seidleck & JP Schnapper-Casteras: Top 10 ways to “friend” SCOTUS.  From the introduction:

Filings by “friends of the court,” known as “amicus briefs,” are more important and sophisticated than ever. They come in many forms and lengths — but contemporary practice suggests that there are 10 (or so) common themes and clear strategies that can have a real impact.


The surge of amicus briefs also presents a conundrum: As the number of briefs increases in a particular case, the ability to “stand out” — and get closely read and utilized by the clerks or justices — can decrease.


In a nutshell, here are the top 10 types of amicus briefs that can help “friend” the Supreme Court...

And their number one is:

1. Historical: a brief focused on American history, legislative history or originalism. Examples: a brief by originalist scholars in National Labor Relations Board v. Noel Canning [Noel Canning Originalist Scholars] and a brief detailing how the founding generation would have understood the Fourth Amendment in Carpenter v. United States [Originalist Brief].

Agreed.  Litigants are getting more sophisticated about making originalist arguments, but I think there is substantial room for originalist amicus briefs for (at least) two reasons:  (1) The parties' attorneys have to cover the whole range of constitutional "modalities" in their briefs; even when they have a strong originalist argument, there is only so much space they can devote to it, so the parties' originalism may necessarily be somewhat superficial. (2) Originalist amicus briefs by originalist scholars can bring expertise and familiarity with founding-era sources developed over a long period of time with deep scholarly attention; even the best appellate attorneys can't develop that level of expertise in the relatively short life of a Supreme Court case.  In the Noel Canning brief mentioned in the SCOTUSblog post, for example (on which I was counsel of record), we relied to a substantial extent on the expertise and past scholarship of Mike Rappaport, who had been studying the recess appointments issue for many years.


Ilan Wurman: The Specification Power
Michael Ramsey

Ilan Wurman (Arizona State University - Sandra Day O'Connor College of Law) has posted The Specification Power on SSRN.  Here is the abstract: 

The executive power to interpret law is at the center of modern debates over administrative law. One prominent set of scholars claims that deference to executive interpretations of law has no historical or constitutional basis, yet another that broad delegations from Congress make such deference inevitable. Because statutes will invariably contain significant ambiguities or “gaps,” it is better that politically accountable and expert agencies resolve or fill them—a justification seemingly running counter to Article III’s purpose of vesting power to interpret law in courts with judges insulated from political accountability. 

This Article challenges both accounts. It shows that this debate is interminable because the two sides are rooted in radically different conceptions of the agency power being exercised. The doctrine and the skeptics assume that the agency power at issue is one over law-interpretation, and hence (according to the skeptics) suitable for courts. The view of the deference proponents, on the other hand, is premised on the very different understanding that interpretation inherently entails lawmaking or that, although their acts are described as interpretation, administrators and judges are actually making law in the interstices of statutes. 

This Article aims to show that neither account is fully correct because both courts and agencies have historically exercised two kinds of powers when implementing a statutory scheme—a power of law-interpretation and a power of “law-specification”—and that both powers have firm constitutional roots. The constitutional sources further suggest that, as an originalist matter, even if deference to an agency’s interpretation power is unsupportable, deference (if one can even call it that) to an agency’s specification power may be fully consistent with the constitutional scheme of separate powers. Calls to overturn deference, although perhaps technically correct, may therefore be overblown if agencies are usually exercising their powers not of interpretation, but of specification.