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24 posts from November 2018


Craig Green: Deconstructing the Administrative State
Michael Ramsey

Craig Green (Temple University - James E. Beasley School of Law) has posted Deconstructing the Administrative State: Constitutional Debates over Chevron and Political Transformation in American Law on SSRN.  Here is the abstract: 

In 2018, Justice Kennedy wrote that the Supreme Court should “reconsider the premises” of Chevron v. NRDC based on “separation-of-powers principles.” In 2015, Justice Thomas was the first judge to argue in an opinion that Chevron is unconstitutional, and Justices Gorsuch and Kavanaugh are the only judicial nominees whose anti-Chevron critiques were featured elements of their candidacy. Petitions for certiorari have challenged Chevron’s constitutionality, echoing litigants in other federal courts, and academics have joined both sides of the debate. This Article responds to modern disputes over Chevron with a new history of how the constitutional crisis developed, a rebuttal of modern critiques, and a description of their potentially destructive effect on administrative governance and constitutional law. The Article describes a shift from Reagan-era support for Chevron to “post-Scalian” attacks. It concludes by considering anti-Chevron constitutional critiques alongside other Trumpist efforts to “deconstruct the administrative state.” To overrule Chevron would be the most radical decision about constitutional structure in eighty years, unsettling hundreds of judicial decisions, thousands of statutes, and countless agency decisions. This Article contributes to existing literature with novel historical research, and detailed engagement with anti-Chevron critiques that have become newly sophisticated and politically powerful.


Eric Segall: Is Originalism a Theory?
Michael Ramsey

At Dorf on Law, Eric Segall: Is Originalism a Theory? Here is a key part of the argument: 

As I've been giving talks at various law schools discussing my new book "Originalism as Faith," one common reaction is great surprise that Originalism today refers to many different theories of constitutional interpretation that have very little in common with each other. When judges and law professors self-identify as "Originalists," there is no longer any serious metric or common definition to understand how they would approach hard constitutional cases.  Professor Michael Paulsen, a noted national scholar and Originalist, believes that originalism must be exercised with strong deference to the decisions of non-judicial political actors. He has said the following:

Where vague or general language admits a range of meaning, actions of representative government falling within that range cannot be said to be unconstitutional. Ambiguity does not supply a justification for courts picking any answer they prefer. Just the reverse: The less clearly the Constitution addresses any issue, the less the justification for judicial invalidation of what elected branches have done. The more unspecific a text, the more room it leaves for democratic choice. This is a feature, not a failure, of Originalism.

Other prominent Originalists who believe that judicial deference and modesty are essential components of the theory include Professors Michael McConnell, Rick Duncan, and Steve Smith. For example, Professor Duncan, objecting strongly to Roe and Obergefell v. Hodges, has said that "of course, some results that liberal elites love, such as the Court created right to abortion-on-demand and the judicial re-definition of marriage to include same-sex couples, are based upon non-originalist reasoning. Originalism could never have reached these results." No doubt many originalists agree with Duncan. Yet, other noted Originalists, such as Randy Barnett, Ilya Somin, and Steve Calabresi, have made originalist arguments for one or both of those cases. That is a broad tent given the importance and controversial nature of both Roe and Obergefell.

More importantly, Originalists like Randy Barnett, Ilya Somin, Ilya Shapiro, Jack Balkin, and Evan Bernick all reject substantial deference when it comes to originalist approaches to constitutional interpretation.  . . .

And from the conclusion:

Every time I raise this issue with Originalists, they respond that they do share something very important in common. They say most Originalists agree with [Lawrence] Solum that the original public meaning of the Constitution's text is fixed at the time of enactment and that meaning ought to constrain judges. Leaving aside that some prominent Originalists such as Professor [Steven D.] Smith advocate for a more intent-style as opposed to public-meaning approach to originalism, the reality is that just repeating those two principles (fixation and constraint) without more tells us little about how originalists would actually resolve hard constitutional cases. As noted above, some Originalists favor aggressive judicial review, some deferential review; some believe we are bound by what people living in 1787 or 1868 thought about specific questions, while others think we can disregard those expectations if they are based on mistaken facts (which in the case of sex discrimination I would argue are really changes in values). And I haven't even mentioned the many different approaches to integrating non-originalist precedent into a serious and workable theory of originalism, which is an issue that divides many Originalists.

I am far from the first scholar to point out how many disparate theories of originalism are embraced by self-identifying Originalists. Professors Tom Colby and Peter Smith have raised this issue in a series of articles, concluding that originalism today is a "smorgasbord of distinct constitutional theories that share little in common except a misleading reliance on a single label." 

Ilya Somin responds at Volokh Conspiracy: Is Originalism a Theory? Is Living Constitutionalism?  He argues:

Segall is right that originalists disagree amongst themselves on many issues. ...

At the same time, however, Segall is wrong to deny there are important areas of agreement among different types of originalists. As he himself notes, his originalist critics "say most Originalists agree with [Larry] Solum that the original public meaning of the Constitution's text is fixed at the time of enactment and that meaning ought to constrain judges." Segall complains that this doesn't provide sufficient indication of how originalists would resolve "hard cases." But even if a methodology does not by itself settle all disputes about hard cases, it is still significant, because it provides a road map for how to go about resolving these issues. In truth, no constitutional theory can resolve cases by itself. Such resolution also requires understanding of relevant factual evidence, institutional constraints, and perhaps other factors, as well. For example, in my view, originalist methodology justifies striking down sex-discriminatory laws that most would have considered constitutional in 1868, because we now have better factual evidence on the capabilities of women. Much (though not all) of the disagreement among originalists turns on these kinds of issues.

As originalist legal thought has developed, internal disagreements among originalists have clearly grown. But that does not mean there is no longer any significant common ground among them. To use an admittedly imperfect analogy: over time, many internal disagreements have arisen between different types of Christians. They disagree amongst themselves on numerous theological questions, and also on practical moral and political issues, such as abortion and the death penalty. But there are still significant commonalities among Christians that separate them from adherents of other religions (and from atheists and agnostics). For example, Christians overwhelmingly agree on the crucial importance of Jesus Christ (even while differing on its exact nature), and on the idea that the Old and New Testaments contain some sort of divinely inspired moral guidance. Similarly, originalists agree on the importance of an unchanging original meaning of the Constitution, even as they differ greatly on exactly what that meaning is, and how courts (and others) should apply it.

Moreover, there is more agreement about particular cases among originalists than Segall lets on. For example, there is widespread agreement among originalists that the original meaning sets tighter limits on the scope of federal power relative to the states than is currently the case under post-New Deal Supreme precedent, that the Constitution provides substantially greater protection for property rights than currently exists, and that the Second Amendment includes a relatively robust individual right to bear arms.

And on living constitutionalism:

If disagreement on various theoretical issues and case outcomes does disqualify originalism from being a theory, the same applies to living constitutionalism. Like originalists, living constitutionalists also disagree among themselves on basic theoretical issues, on the extent to which courts should defer to the other branches of government, and on case outcomes. For example, living-constitutionalist opinion on judicial deference ranges from those who would do away with binding judicial review almost entirely (e.g. - Mark Tushnet and Larry Kramer) to those who advocate more robust judicial scrutiny of many types of legislation than exists today (e.g. - the late Ronald Dworkin). On basic theoretical premises, living constitutionalists disagree even more than originalists do. For example, there are huge differences between John Hart Ely's "representation-reinforcement" theory, David Strauss' "common law constitutionalism," Ronald Dworkin's moral approach to constitutional interpretation, and Bruce Ackerman's theory of "constitutional moments."


Old English Law Indicates that "Six Months" is the Maximum Necessary and Proper Constitutional Limit on Tenure of Acting Cabinet Secretaries
Andrew Hyman

My co-bloggers Michael Ramsey and Michael Rappaport both say that the following act violated the Constitution's original meaning.  On February 13, 1795 Congress passed this law titled, "An Act to Amend the Act, entitled 'An Act Making Alterations in the Treasury and War Departments'" (emphasis added):

[I]n case of vacancy in the office of secretary of state, secretary of the treasury, or of the secretary of the department of war, or of any officer of either of the said departments, whose appointment is not in the head thereof, whereby they cannot perform the duties of their said respective offices, it shall be lawful for the president of the United States, in case he shall think it necessary, to authorize any person or persons, at his discretion, to perform the duties of the said respective offices, until a successor be appointed, or such vacancy be filled: Provided, That no one vacancy shall be supplied, in manner aforesaid, for a longer term than six months.

For reasons already explained, this statute seems in my view entirely consistent with the original meaning of the Constitution, as a necessary and proper effectuation of the executive power; the executive power is limited not just by the Appointments Clause, but also by the Take Care Clause which seems to be one of the clauses that provides for appointments.  Here is the Take Care Clause, with the Commission Clause added for context: "he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States." 

The 1795 statute that I quoted above places a "six month" limit on acting cabinet secretaries, and I want to point out now that this was a longstanding limit under old English law.  Here is what the legal lexicographer Giles Jacob wrote in 1762 (emphasis added):

All officers civil and military are to take the oaths, and receive the sacrament, etc., upon pain of disability and other penalties. Stat. 25 Car. 2. 13 W. 3.  And no such office shall be void on the death of the King, but shall continue six months; unless superseded, or made void by the next successor.  1 Ann. c. 8....[A]ll persons who shall hereafter be admitted into any office, shall take the oaths, and within six months, or actually be liable to all penalties and disabilities, by Stat. 9 Geo. 2, c. 26 and 16 Geo. 2. c. 30.

The first part about “successors” explains why John Jay could serve for six months in an acting capacity after Congress established his department under the Constitution, but could not have served as Acting Secretary of State until his death in 1829.  As a whole, this blockquote explains why Congress in 1795 would have thought a six-month grace period was a necessary and proper limit on acting cabinet secretaries.  My main point is that the “six month” duration was not plucked from thin air, but rather was part of an old English principle, reasonably adapted to our republican form of government that Americans substituted in place of monarchy.  If, as Mike Ramsey argues, the Constitution by "mistake" set zero months instead of six months as the limit on acting cabinet secretaries, except for holdovers from the Articles of Confederation who could constitutionally continue serving forever, then it seems likely that people in the eighteenth century would have proposed a constitutional amendment once they realized the purported mistake.

Kevin Tobia: Testing Original Public Meaning
Michael Ramsey

Kevin P. Tobia (Yale University; ETH Zurich) has posted Testing Original Public Meaning on SSRN.  Here is the abstract: 

Various interpretive theories recommend using dictionaries or corpus linguistics to provide evidence about the “original public meaning” of legal texts. Such an interpretive inquiry is typically understood as an empirical one, aiming to discover a fact about public meaning: How did people actually understand the text at the time it became law? When dictionaries or corpora are used for this project, they are empirical tools, which might be reliable or unreliable instruments. However, the central question about these tools’ reliability remains unanswered: Do dictionaries and corpus linguistics reliably reflect original public meaning?

This paper develops a novel method to assess this question. It begins by examining the public meaning of modern terms. It compares people’s judgments about meaning to the verdicts that modern dictionaries and corpus linguistics deliver about (modern) public meaning. Eight experimental studies (total N = 1,327) reveal systematic divergences among the verdicts delivered by ordinary concept use, dictionary use, and corpus linguistics use. For example, the way in which people today apply the concept of a vehicle is systematically different from the way in which people apply the modern dictionary definition of a “vehicle” or the modern corpus linguistics data concerning vehicles. Strikingly similar results arise across levels of legal expertise; participants included 999 ordinary people, 230 “elite-university” law students (e.g. at Harvard and Yale), and 98 United States judges. These findings provide evidence about the reliability of dictionaries and corpus linguistics in estimating modern public meaning. I argue that these studies also provide evidence about these tools’ reliability in estimating original public meaning, in historical times.

The paper develops both the positive and critical implications of these experimental findings. Positively, the results reveal systematic patterns of the use of dictionaries and corpora. Corpus linguistics tends to generate prototypical uses, while dictionaries tend to generate more extensive uses. This discovery grounds normative principles for improving the use of both tools in legal interpretation. Critically, the results support five argumentative fallacies that arise in legal-interpretive arguments that rely on corpus linguistics or dictionaries. More broadly, the results suggest that two central methods of determining original public meaning are surprisingly unreliable. This shifts the argumentative burden to public meaning originalism and other theories that rely upon these tools; those theories must provide a non-arbitrary account of these tools’ use and a demonstration that such methods are, in fact, reliable.


Counterpoint: The Whitaker Appointment Is Unconstitutional under the Constitution's Original Meaning
Michael Ramsey

In the matter of the appointment of Matthew Whitaker as Acting Attorney General, my co-bloggers are divided: Andrew Hyman argues here that the appointment is constitutional under the Constitution's original meaning, while Mike Rappaport argues here (relying on his earlier law review article) that it is not, because Mr. Whitaker does not hold a Senate-confirmed office.  Also, yesterday the Department of Justice released a legal opinion (per Assistant Attorney General Steven Engel) in support of the constitutionality of the appointment, although (as I'll discuss below) its analysis of the original meaning is very thin.

I mentioned some initial concerns about the appointment last week, and on further reflection I side with those who find that the Constitution's original meaning does not allow the appointment.  But Andrew Hyman raises some important arguments that need a response.

The basic textual argument against the appointment's constitutionality is simple.  The appointments clause, Article II, Section 2, states that the President "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other Public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not otherwise herein provided for."  This provision is subject to two textual exceptions: (1) Congress may "vest the Appointment of such Inferior Officers, as they think proper" in the President alone, the courts of law, or the heads of departments, and (2) the President may make appointments to vacancies that happen during the recess of the Senate.  The most plausible reading (indeed, I would say the only plausible reading) of this text and structure is that it establishes a general rule of Senate advice and consent for appointments subject to only two exceptions, for recess appointments and for inferior officers.

Since the Whitaker appointment is not a recess appointment, it is constitutional only if (a) he is an inferior officer or (b) the "appointment" is not really an appointment.  As to (b), that argument might work for persons who hold another federal office and merely have their duties expanded temporarily.  But that is not the case for Mr. Whitaker, who does not concurrently hold another office.  As to (a), the core definition of an inferior officer would seem obviously to be someone subject to a superior other than the President.  Whitaker does not meet that definition.  Again, it's possible that a person already holding a inferior office could be delegated temporarily  the duties of a superior office and yet remain an "inferior Officer" so long as that person still had a "superior" -- but that is not Whitaker's situation.

The Department of Justice opinion argues that an acting officer might be an inferior officer because of the short duration of the appointment.  But I agree with Mike Rappaport: "It is not the length of time, but the duties that are performed that are relevant."  Specifically, it is whether the duties are performed with supervision by someone other than the President.  The text does not suggest anything about duration (and in any event, an acting appointment could last fairly long).  

I'm not aware of any pre-ratification discussion or other evidence that would undermine this view.  There is some contrary post-ratification evidence but I find it insufficient given the clarity of the text.  First, Congress by statute in 1792 gave the President power to make acting appointments without limitation.  The Whitaker appointment would have been legal under that statute.  But it does not appear that this statute produced any reflection or debate, and no one explained how it could be constitutional as applied to superior officers who lack Senate confirmation (plainly it is constitutional as applied to inferior officers and [as discussed below] superior officers with prior Senate confirmation).  Second, under that statute and its successors, Presidents made some acting appointments that appear not to comply with the Constitution's text.

According to the Engel opinion, the first of these appointments was by President Jefferson in 1809, designating John Smith to serve as Acting Secretary of War.  (In a prior post, I suggested that the first such appointment might have been in 1829, but I mistakenly assumed that the office of Chief Clerk of the War Department, which Smith held, was a Senate-confirmed position; it was not).  However, it does not appear that the practice of appointing non-confirmed persons to superior offices became at all common until the Jackson administration in 1829.  Again, the single unexplained appointment in the Jefferson administration does not seem sufficient to overcome the clear text; the practice in the Jackson administration is not good evidence of original meaning, both because it is remote from the drafting and ratification of the Constitution and because President Jackson was not overly cautious about expanding executive powers.

The Department of Justice opinion does not claim that the historical practice indicates an original meaning in support of the appointment; rather, it principally relies on subsequent historical practice as creating the meaning in itself.  It says only that calling someone with an acting appointment an inferior officer is a possible reading of the text.  (It also relies on the 1898 Supreme Court case United States v. Eaton, but Eaton also does not have much originalist analysis).

Andrew Hyman makes three main arguments, not reflected in the Department of Justice opinion, in support of the Whitaker appointment: (1) that it is supported by early practice, specifically John Jay's service as acting Secretary of Foreign Affairs; (2) that it is constitutional under the take care clause; and (3) that its constitutionality is implied by the recess appointments clause.

As to the first, he points out that John Jay served as acting Secretary of Foreign Affairs under Washington prior to the appointment of the first Secretary of State.  There is some weight to this, but on the other hand it occurred during a time of transition and in the face of practical necessity.  Foreign affairs needed continuing management and there were no other federal officers at the time; Jay was not so much appointed as carried over from the Articles of Confederation, under which he held the office.  Jay himself said he was acting "not officially."

On the second point, he argues that the President's duty to take care that the laws are faithfully executed implies power in the President to take necessary actions to assure faithful execution, including making short-term acting appointments.  He also points to the language in the appointments clause limiting the Senate role to approving officers "whose Appointments are not otherwise herein provided for" and argues that acting appointments are provided for (implicitly) in the take care clause. I think any such power would come from the executive vesting clause of Article II, Section 1, not the take care clause, which is only a duty to take care to the extent of the powers elsewhere provided.  But that's a quibble.  The more important point is that the President's executive power is qualified by the Constitution's express assignments of executive power to other branches.  Thus the President cannot declare war, even if war is needed to assure the laws are faithfully executed, because war power is expressly assigned elsewhere.  Similarly, the President cannot make appointments (other than in accordance with the appointments clause) even if appointments are needed to assure the laws are faithfully executed.  The "otherwise provided for" language does not help because, first, acting appointments are not "provided for" in the take care clause, and second the "otherwise provided for" language is more naturally read to refer to the inferiors officers clause and the recess appointments clause, which immediately follow and which provide for appointments without Senate consent.

The third point is the most interesting.  It is true that the recess appointments clause allows the President alone to appoint any person, without limitation, as a superior officer without Senate approval.  Thus if if the Attorney General vacancy had "happen[ed] during the recess of the Senate" the Whitaker appointment would be obviously constitutional.  This substantially undercuts the argument of people such as George Conway and Neal Katyal that the Whitaker appointment somehow betrays fundamental constitutional principles.  In fact, the appointment is only constitutionally problematic because it happened not to be a recess appointment.  Yet, Andrew Hyman reasonably asks, why would the Constitution draw such a sharp line between a recess appointment and a temporary appointment?  Both serve the same purpose of allowing the executive branch to function at full strength until the Senate's consent can be obtained.

My answer illustrates an important point about the Constitution: it's drafters were human, and thus fallible.  I think it was likely a mistake.  The drafters understood that when the Senate was in recess, there needed to be a way to fill vacancies.  They thought that when the Senate was not in recess, filling vacancies would not be a problem, because if the vacancy created serious difficulties the Senate would act quickly.  But they did not appreciate that vacancies or incapacities can arise suddenly, that the President may need time to identify and vet a suitable long-term candidate, and that the Senate may need time to deliberate.  Vacancies that arise when the Senate is sitting may still be problematic.  That doesn't mean the Constitution has to provide for them. 

The 1792 Act, and subsequent vacancy acts, are thus something of a work-around.  They work to an extent, as Mike Rappaport explains.  Congress can provide that the duties of a Senate-confirmed officer include assuming the duties of another office, on an acting basis, if the President directs.  The acting "appointment" is not really an appointment, but a reallocation of duties.  The person is acting as a superior officer in carrying out these duties, but that is constitutionally unobjectionable because that person has already been approved by the Senate.  Although the framers may not have envisioned this work-around, the text does not prevent it.  And placing the power over acting appointments with Congress allows Congress to limit them.

The Constitution's text does, however, prevent the President from allocating "acting" duties of superior officers to persons who have not been approved by the Senate for any office.  In assuming such duties, the person becomes a superior officer (that is, acts without supervision by anyone other than the President).  And the text says that all superior officers, other than those appointed during a recess, must be approved by the Senate.

UPDATE:  John Yoo has a somewhat similar analysis, reaching a similar conclusion, at The Atlantic.  (Thanks to Michael Perry for the pointer).


Acting Appointments and the Constitution’s Original Meaning
Mike Rappaport

There has been much controversy over the naming of Matthew Whitaker, the Chief of Staff of former Attorney General Sessions, to be Acting Attorney General. Whitaker was not serving in a position that required the advice and consent of the Senate. So the question is whether Whitaker can be named as Acting Attorney General when the Attorney General can only be appointed with the advice and consent of the Senate. In my view, the Constitution’s original meaning does not allow this appointment, but nonoriginalist positions might very well permit it.

Many years ago, I published an article on the original meaning of the Recess Appointments Clause. While Justice Scalia relied on the theory I developed in the Noel Canning case, unfortunately his opinion was a dissent for four justices. The majority accepted Justice Breyer’s view, which was clearly contrary to the original meaning. In that article, I also developed an argument what the Constitution’s original meaning says about acting appointments, which I present below.

The Attorney General is the Head of the Department of Justice. As such, the Attorney General is not an inferior officer under the Appointments Clause and therefore can only be appointed with the advice and consent of the Senate. How then can the President alone name a person to be Acting Attorney General—that is, to serve temporarily as Attorney General? To understand how this can happen requires a little background. When the President makes an “acting appointment,” it is important to understand that there is no appointment made under the Constitution.

For example, suppose that Congress provides that either the Deputy Attorney General or the Solicitor General, both of whom are appointed with the advice and consent of the Senate, shall be eligible to serve as Acting Attorney General when, in the absence of the Attorney General, the President designates one of them to be Acting Attorney General. In this situation, no appointment actually occurs. Instead, the correct way to conceptualize this is that both the Deputy Attorney General and the Solicitor General have, as one power of their office, the responsibility to serve as Acting Attorney General when the President so designates them. Thus, when the Senate consented to their appointment, it already consented to them serving as Acting Attorney General.

This process cannot occur constitutionally, however, if the person designated to serve as Acting Attorney General was not appointed with the advice and consent of the Senate. Since serving in the position of Attorney General requires an advice and consent appointment, a person who has been appointed without the Senate's advice and consent cannot serve in that position, even temporarily.

The best argument on the other side is that temporarily serving as acting Attorney General is not the same as serving as Attorney General. Therefore, a temporary appointment does not require advice and consent. But this argument is weak. It is hard to know how short an appointment needs to be to be considered temporary. Moreover, being the Head of a Department is an important job, even if one only serves there for a brief period. It is not the length of time, but the duties that are performed that are relevant.

It is true that an early statute, passed in 1792, appeared to allow officers who had not secured the advice and consent of the Senate to serve as Heads of Departments. But that view is problematic. Interestingly, Senator Rufus King, who was a Philadelphia Framer, recognized the problem in 1813. David Currie writes that King argued that allowing officers appointed without the Senate’s consent to act as the Head of the Department “would permit a President to evade the requirement of Senate approval.”

In my next post, I will explain why the analysis differs for nonoriginalists.

Christopher Schmidt: Originalism and Congressional Power to Enforce the Fourteenth Amendment
Michael Ramsey

Christopher W. Schmidt (Chicago-Kent College of Law; American Bar Foundation) has posted Originalism and Congressional Power to Enforce the Fourteenth Amendment (74 Washington and Lee Law Review Online 33 (2018)) on SSRN.  Here is the abstract:

In this Essay I argue that originalism conflicts with the Supreme Court’s current jurisprudence defining the scope of Congress’ power to enforce the Fourteenth Amendment. Under the standard established in Boerne v. Flores, the Court limits congressional power under Section 5 of the Fourteenth Amendment to statutory remedies premised on judicially defined interpretations of Fourteenth Amendment rights. A commitment to originalism as a method of judicial constitutional interpretation challenges the premise of judicial interpretive supremacy in Section 5 jurisprudence in two ways. First, as a matter of history, an originalist reading of Section 5 provides support for broad judicial deference to congressional constitutional interpretive authority. Second, even if one accepts originalism as the best way for courts to interpret the Constitution, this assumption does not necessarily apply to nonjudicial actors when they are fulfilling their own constitutional responsibilities—such as members of Congress acting to enforce the provisions of the Fourteenth Amendment. Placing judicial originalism into the foreground of our discussion of Section 5 jurisprudence thus offers additional support for a broader reading of the congressional enforcement power than exists today under Boerne.

This is a response to William D. Araiza, Arming the Second Amendment—and Enforcing the Fourteenth, 74 Wash. & Lee L. Rev. 1801 (2017).


More on Birthright Citizenship: Nonoriginalism Allows the Denial of Birthright Citizenship but Originalism Does Not
Mike Rappaport

The debate on birthright citizenship continues. But I find it frustrating in two ways. First, nonoriginalists continue to ignore that there is a very reasonable case to be made that nonoriginalism denies birthright citizenship. Second, some critics of birthright citizenship, who purport to write from an originalist perspective, continue to argue that the original meaning does not protect birthright citizenship.

Let’s start with the nonoriginalists. Sometimes I think that nonoriginalism actually is what it is caricatured to be: a method of reaching decisions according to the moral values of the interpreter. Some nonoriginalists are simply asserting that birthright citizenship is the meaning of the Constitution and that anyone who claims otherwise is simply ignorant and morally depraved. But such vehemence does not prove that these nonoriginalists are right or consistent.

Nonoriginalism does not do what many nonoriginalists think it does. Nonoriginalism is a methodology that often leads to significant uncertainty. While that means that you can often argue for the result that you like, it also means that you do not have a strong argument against people who interpret the Constitution to mean something you don’t like. The uncertainty of nonoriginalism means that lots of results become permissible. Simply ignoring this aspect of nonoriginalism does not make it go away. If you are a nonoriginalist, you don’t have a strong principled argument against people who interpret the Constitution to deny birthright citizenship.

Now on to those marching under the banner of originalism. Andrew McCarthy, following Lino Graglia, claims that the Fourteenth Amendment Citizenship Clause does not confer birthright citizenship. Instead, the Constitution only confers citizenship on the children of American citizens (and some legal resident aliens). But this argument is not the best reading of the evidence and turns on some problematic originalist methodology.

Graglia, upon whom McCarthy relies, argues that the meaning of “subject to the jurisdiction” of the United States in the Fourteenth Amendment gets its meaning from the Civil Rights Act, which was passed two years before Congress passed the Amendment. Graglia notes that the Civil Rights Act had different language, which provided that “[A]ll persons born in the United States, and not subject to any foreign power,” were citizens. I agree there is a strong argument that this language of the Civil Rights Act does not confer birthright citizenship, but that does not support Graglia or McCarthy’s argument. The Amendment changed the Civil Rights Act’s language. The natural inference is that it did so for a reason. One cannot simply claim, as Graglia does, that it does not appear that this change in the language changed the meaning of the provision. If the better reading of the Fourteenth Amendment’s actual language is to confer birthright citizenship, then that is what one goes with.

I don’t mean to suggest that that the history here is a slam dunk. I myself have argued that there is some uncertainty as to the full meaning of “subject to the jurisdiction” of the United States. But the argument for birthright citizenship is still much stronger than the alternative.

In the end, advocates and opponents of birthright citizenship are stuck in a dilemma. The advocates tend to be nonoriginalists, but that methodology does not provide them with a strong case against those who deny birthright citizenship. The opponents tend to be originalists, but originalism is more determinate than nonoriginalism and provides strong support for birthright citizenship.

Why the Whitaker Appointment Complies With the Original Meaning of the Constitution
Andrew Hyman

A few days ago, Jeff Sessions resigned as Attorney General, and Matthew Whitaker was appointed Acting Attorney General pending the nomination and confirmation of a permanent replacement for Sessions.  Several lawyers have been claiming the Whitaker appointment violates the Constitution, including George Conway and Neal Katyal writing in the New York Times.  Others disagree with Katyal and Conway, including law professor Stephen Vladeck who argued in the New York Times three days ago that "Whitaker May Be a Bad Choice, but He’s a Legal One."  I don't know if it's a bad one, but I do believe it conforms with the original meaning of the Constitution.

The first thing everyone has to realize is that the Whitaker appointment is 100% compliant with a federal statute called the Federal Vacancies Reform Act of 1998 (FVRA) which authorizes temporary appointments of people who have never been nominated or confirmed by the Senate.  That statute is supported not just by the powers of Congress, but also by the powers of the Senate (e.g. its rulemaking power).  Statutes like the FVRA, authorizing the appointment of acting department heads without Senate confirmation, have been on the books since the 1790s, and we can look even earlier for precedents.

For example, Congress created the office of Secretary of Foreign Affairs on July 27, 1789 and John Jay acted in that position even though he had never been nominated or confirmed by the Senate to anything.  President Washington explicitly referred to Jay (e.g. in a September 5, 1789 letter to Henry Knox) as the “acting Secretary of Foreign Affairs.”   Jay wrote on October 7, 1789: “Circumstances hav[e] rendered it necessary that I should continue, though not officially, to superintend the Department of Foreign Affairs.”  Washington wrote on October 13, 1789 that Jay “has been so obliging as to continue his good offices…."  Congress renamed the department "State" while Jay was still its acting head.  That leaves the question of why Washington and Jay thought it was constitutional, and they didn't explicitly say, as far as I know.  But there is a very reasonable answer.

Ever since the 1840s (if not earlier), the executive branch has been arguing that the presidential power of appointment results from his constitutional duty to take care that the laws are faithfully executed.   You cannot faithfully execute the law without subordinates, and appointing subordinates is a core part of executive power.

The Constitution says: "The executive Power shall be vested in a President . . ." and "he shall take Care that the Laws be faithfully executed."  And the Constitution further says that Congress has power to "make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof" (my emphasis).

The main argument against the Whitaker appointment is that it does not comply with Article II, Section 2 of the Constitution (my emphasis):
The President....shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments. The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.
The last sentence is about recess appointments.  There would be no controversy about the Whitaker appointment if it happened during the recess of the Senate, but the Senate was holding brief "pro forma" sessions instead of deciding to recess, so let us assume the Senate was not in recess.  But observe: the Recess Appointments Clause could have easily been written so as to require that the President only choose an acting Attorney General from people who were already holding some Senate-confirmed office, but that Clause instead was written so as to allow the President to choose anyone.

And how about the sentence preceding the Recess Appointments Clause?  Doesn't the Whitaker Appointment (and the FVRA) violate that?  Actually, no.  One could argue in Whitaker's favor that he is an "inferior officer" because he is only serving for a limited time, but that argument is not very compelling because he has a LOT of power and no boss other than the President; and anyway, saying that John Jay was an "inferior officer" would not have boosted Jay's legitimacy at all, because Congress had not vested any power for Jay's appointment in the President.

The real reason why the Whitaker and Jay appointments (and countless appointments in between) comply with the original meaning of Article II, Section 2 is very probably because they were "herein otherwise provided for" in the sense that they were provided for by this language that I already quoted above: "The executive Power shall be vested in a President....he shall take Care that the Laws be faithfully executed" (and we also have the power of Congress to "make all Laws which shall be necessary and proper for carrying into Execution" that presidential power).  As long as the Whitaker appointment is limited in time, and the President intends to go through the nomination and confirmation process, the appointment is necessary and proper.

Katyal and Conway argue that it would have been okay if one of the hundreds of Senate-confirmed officials had been transferred ("cut and pasted") to Acting Attorney General, even though the Senate never checked their qualifications to run the Justice Department.  Whitaker was the Chief of Staff for Sessions without having been confirmed by the Senate, and had been confirmed by the Senate as a U.S. Attorney back in 2004.  Trump could have just as constitutionally appointed George Conway as Acting Attorney General, even though Conway has never been confirmed by the Senate for anything.
(Cross-posted at Redstate).


Birthright Citizenship: Originalism and Nonoriginalism
Mike Rappaport

President Trump has put the Fourteenth Amendment’s Citizenship Clause in the news. The question is whether the language in the Amendment—“All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States”—provides citizenship to the children of illegal or undocumented aliens who are born in the United States.

I have a two-part position on this issue. I believe that the Constitution’s original meaning makes the children of illegal aliens, who are born in the United States, citizens. Since I am an originalist, I would follow this interpretation. But I also believe that a reasonable case can be made—based on nonoriginalism—for not interpreting the Amendment to cover the children of illegal or undocumented aliens.

A couple of years ago Mike Ramsey and I had a Constitution Day debate on this issue. It was an unusual debate. Mike took the position that the original meaning conferred citizenship on the children of illegal aliens. I agreed with him. Here is the essence of Mike’s position as to what “subject to the jurisdiction thereof” meant:

It was a bedrock principle of nineteenth-century international law that sovereigns had complete jurisdiction (that is, authority to prescribe law) over all persons and things within their sovereign territory. This principle was subject to several exceptions, notably (1) territorial jurisdiction did not extend to ambassadors and other diplomatic personnel, nor to foreign rulers and their property, all of whom had immunity from the laws of the territorial sovereign; (2) territorial jurisdiction could be limited by treaty, as the U.S. did to some extent in treaties with Indian tribes; and (3) territorial jurisdiction did not exist as a practical matter over hostile armies and in areas under hostile occupation. U.S.-born children of illegal immigrants do not fit into any of the exceptions to territorial jurisdiction. Nor is there any doubt that such children are governed by U.S. law at the moment of their birth. Thus they are "subject to the jurisdiction" of the United States at birth. As a result, the text's original meaning grants them U.S. citizenship at birth.

While agreeing that this was the original meaning, I argued that a nonoriginalist might reasonably disagree. Here let me offer three nonoriginalist arguments that I made for this interpretation—the type of arguments that are typically made by nonoriginalists.

First, there are strong nonoriginalist reasons for not following the original meaning as to birthright citizenship for the children of illegal immigrants. At the time of the Fourteenth Amendment, there was not an illegal immigrant issue, since there were essentially no federal laws restricting immigration. Thus, the Framers of the Amendment were unlikely to have had that issue in mind. Nonoriginalists typically argue that the decisions made by the Framers are more relevant when they addressed the actual issue and less relevant when they failed to anticipate a matter.

Second, there are strong normative arguments against birthright citizenship for illegal aliens (and for many others).

Normative arguments are, of course, one of the mainstays of nonoriginalist interpretation. One common argument is that conferring citizenship on the children of illegal aliens obviously provides an incentive for more illegal aliens. A less common argument against conferring citizenship of the children of noncitizen legal residents is that it makes it more difficult to have guest worker programs, since those workers may have children while they are in the United States.

But the strongest normative argument against conferring citizenship on the children of illegal aliens derives from the fact that, in the modern world, American citizenship is a tremendous privilege. Given the benefits that U.S. citizenship conveys, the normative question is how we should allocate this privilege. It seems obvious that citizenship should not be granted simply based on the accident of being born in the United States. There are a variety of ways one might want to allocate citizenship (and immigration)—based on quotas from countries, based on skills contributed to the United States, based on years already lived in the United States—but none of those are based on the simple accident of being born in the US.

A third type of nonoriginalist argument is to look to the existence of laws throughout the world, especially the developed countries in Europe.

A strong trend as to these laws suggests that normatively the United States ought to follow it. Significantly, the only two developed countries in the world that have birthright citizenship are Canada and the United States. None of the European countries have it and several developed nations have repealed it in the last generation.

Thus, there is a strong nonoriginalist argument for reading the Fourteenth Amendment not to confer birthright citizenship, at least to the children of illegal or undocumented aliens.

Nonoriginalists might not agree with this argument, but it is hard for them to argue that the argument is illegitimate since they accept this type of argument. In the end, one can’t have it both ways. If one favors the freedom that nonoriginalist interpretation gives to an interpreter, then one must live with the way that those who disagree with you would use that interpretive freedom.