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18 posts from February 2019


Steven Calabresi & Gary Lawson: Why Robert Mueller’s Appointment As Special Counsel Was Unlawful
Michael Ramsey

Steven G. Calabresi (Northwestern University - Pritzker School of Law) and Gary Lawson (Boston University School of Law) have posted Why Robert Mueller’s Appointment As Special Counsel Was Unlawful (88 pages) on SSRN.  Here is the abstract:

Since 1999, when the independent counsel provisions of the Ethics in Government Act expired, the Department of Justice (“DOJ”) has had in place regulations providing for the appointment of Special Counsels who possess “the full power and independent authority to exercise all investigative and prosecutorial functions of any United States Attorney.” Appointments under these regulations, such as the May 17,2017 appointment of Robert S. Mueller to investigate the Trump campaign, are patently unlawful, for three distinct reasons.

First, all federal offices must be “established by Law,” and there is no statute authorizing such an office in the DOJ. We conduct what we think is the first thorough examination of the statutes structuring the DOJ to show that the statutory provisions relied upon by the DOJ and lower courts for the appointment of Special Counsels over the past two decades do not – and even obviously do not – authorize the creation and appointment of Special Counsels at the level of United States Attorneys. They authorize the creation and appointment of Special Counsels to “assist” United States Attorneys, and they allow existing Senate-confirmed United States Attorneys to serve also as Special Counsels, but they do not remotely authorize the creation of the kind of Special Counsels represented by Robert Mueller who replace rather than assist United States Attorneys. United States v. Nixon, 418 U.S. 683 (1974), does not hold to the contrary, because no question was raised in that case about the validity of the independent counsel’s appointment.

Second, even if one chooses to overlook the absence of statutory authority for the position, there is no statute specifically authorizing the Attorney General, rather than the President by and with the advice and consent of the Senate, to appoint such a Special Counsel. Under the Appointments Clause, inferior officers can be appointed by department heads only if Congress so directs by statute – and so directs specifically enough to overcome a clear-statement presumption in favor of presidential appointment and senatorial confirmation. No such statute exists for the Special Counsel.

Third, the Special Counsel is, in all events, a superior rather than inferior officer and thus cannot be appointed by any means other than presidential appointment and senatorial confirmation regardless of what any statutes purport to say. This is obviously true as a matter of original meaning, and it is even true as a matter of case law once one understands that neither Morrison v. Olson, 487 U.S. 654 (1988), nor Edmond v. United States, 520 U.S. 651 (1997), can plausibly be read to say that any person who is in any fashion subordinate to another executive official is an “inferior” officer. Such a reading leads to the ludicrous result that there is only one non-inferior officer in every federal department, which is a good reason not to read them that way.

There are surely times when Special Counsels are appropriate. Both statutes and the Constitution provide ample means for such appointments through the use of existing United States Attorneys with unimpeachable credentials and reputations for standing above politics. Any number of United States Attorneys have performed these functions with distinction. Statutes and the Constitution do not, however, permit the Attorney General to appoint a private citizen as a substitute United States Attorney under the title “Special Counsel.” That is what happened on May 17, 2017. That appointment was unlawful, as are all of the legal actions that have flowed from it.

From a constitutional originalist/textualist perspective, the second point seems especially troubling.



Congress' Power to Deploy Troops?
Michael Ramsey

The Senate has passed a resolution calling for the continued deployment of troops in Afghanistan and Syria, despite the President's announced plans for withdrawal.  Sadly (from an academic perspective) the resolution is nonbinding, so it creates no actual constitutional controversy.  But suppose Congress did direct continued deployment of troops in Afghanistan and Syria by statute (over the President's veto).  Does Congress have this power?

My answer is no.  The question is similar to one debated by me and Professor Saikrishna Prakash, hosted by the Texas Law Review.  (His paper is here; my response is here).  Professor Prakash's view was  that Congress has essentially plenary power over military matters through a combination of the declare war power and the power to "make Rules for the Government and Regulation of the land and naval Forces."  My argument in response was that Congress does not have power over purely tactical decisions, such whether to attach a fortified enemy or whether to defend a threatened position.

Although it's a closer question, I think my conclusion also extends to the decision to deploy troops.  Congress does not appear to have an enumerated power to make such a decision.  The declare war power relates only to the status of relations between the U.S. and its adversary.  If Congress declares war (or authorizes the President to declare war), the President may use military force against the enemy; if it does not, then the President may not use force (unless the U.S. is attacked).  But once Congress has declared war or otherwise authorized the use of force, the declare war power does not encompass management of the war effort.

The government-and-regulation power, in my view, is not a general authorization to Congress to direct military operations, but rather is a specific grant of power to establish standing rules on the conduct of military personnel.  (This argument is developed further in my Texas Law Review essay).  A substantial element of this argument is that under the Articles of Confederation, Congress had both the power of  "making rules for the government and regulation of the said land and naval forces" and the power of "directing their operations." (Art. IX, para. 4).  Thus, these were understood as two distinct powers.  And the former power, but not the latter, was carried over to Congress by the Constitution.  The power of "directing their operations," under the new Constitution, presumably went to the President as Commander-in-Chief.

As a result, Congress may declare that the U.S. is in a state of war with ISIS in Syria and with the Taliban in Afghanistan (leaving aside the issue that both ISIS and the Taliban are nonstate actors, and the fact that Congress has not actually made such a declaration in either case, but only an authorization to the President to use force as appropriate).  But Congress does not have power to direct the President to make any particular deployment of troops as a result of the state of war.


Eric Segall on Baude & Sachs on Originalism as Our Law
Michael Ramsey

At Dorf on Law, Eric Segall: Originalism off the Ground.  From the beginning:

Professors Will Baude and Stephen Sachs are at it again. They have continued their quest to convince the world that originalism is, indeed, our law. Their new article is "Grounding Originalism."

In previous articles and essays, Baude and Sachs have set forth a positivist account of constitutional law, arguing that our law is the Founders' law until properly amended or changed. They have also claimed that our Founders' law allows judges to change old applications of legal principles if new facts require such changes, as long as the constitutional provision at issue was intended, designed or originally meant to allow judges to do just that. In other words, cases such as Brown v. Board of Education and Obergefell v. Hodges, which most scholars categorize as non-originalist, may properly be classified as originalist decisions if, and only if, the 14th Amendment's original meaning embraced evolving applications by judges (an issue that the authors surprisingly have so far ducked).

Baude and Sachs have also argued that lawyers, law professors and judges often criticize or praise Supreme Court decisions based on originalist criteria and make originalist arguments to the Court, thereby demonstrating that our legal vocabulary is originalist, which shows that originalism is our law. In their newest piece, they point to scholarly and lawyerly debates over the Emoluments Clause and what that word originally meant to show the large role that originalism plays in constitutional interpretation. Why argue so ferociously over originalist evidence if originalism isn't our law (well maybe to hide the value judgments that will ultimately decide the case)?

"Grounding Originalism" also contains much discussion of Hartian philosophy and rule of recognition issues, which some critics have used to critique their work. But the authors concede that "the more enduring dispute between us and many of our critics is far more banal: it’s a simple empirical disagreement. Maybe our beliefs seem odd, not because there’s anything wrong with our legal theory, but simply because other readers don’t see how our existing legal practice grounds a form of originalism." This is where I come in.  ...

And from later on:

 The real question is how much of a role originalism actually plays in Supreme Court decisions. ... [M]y recent book spends considerable ink showing not much. The authors don't wrestle with those of us who have documented how little text or history actually matters to the Court. In "Grounding Originalism," Baude and Sachs respond to Professor David Strauss' compelling descriptive account of common law constitutionalism not by wrestling with the long list of cases he says support his theory but by suggesting Strauss admits his account is odd because it is “not [one] we usually associate with a written constitution, or indeed with codified law of any kind.” Yet, Strauss maintains he is correct, so I'm not sure what this response adds. Many of us think the Court's behavior across a spectrum of issues and practices is "odd," but we describe the Court we have, not the one we want.

(Thanks to Mark Pulliam for the pointer).

RELATED:  D.A. Jeremy Telman (Valparaiso University Law School) has posted this review of Eric Segall's book Originalism as Faith on SSRN: Originalism as Fable (Hofstra Law Review, forthcoming).  Here is the abstract: 

Eric Segall’s Originalism as Faith provides both a history of the originalist movement in constitutional interpretation and a critique of that movement from the perspective of legal realism. This Review Essay summarizes Segall’s main argument: as originalism has abandoned deference to the political branches, it has become indistinguishable from its nemesis, living constitutionalism. Emptied of substance, originalism becomes nothing more than an expression of faith. Segall makes his argument very convincingly, evidencing both his knowledge of originalism in all its variants and his mastery of constitutional doctrine.

This Essay offers two ways in which Segall’s exemplary work might be supplemented. First, it teases out the various meanings that “faith” can have in this context, ranging from quasi-religious belief to myth to ideology to political credo. Second, it offers two alternative narratives as supplements to Segall’s legal realist critique. Originalists insist that their approach has “bite,” which they contend distinguishes it from unprincipled living constitutionalism. In the alternative, Jack Balkin reconciles originalism and living constitutionalism. Legal decision-makers, following his “living originalism,” may be legal realists, but their construction of the Constitution must be constrained by their duties of good faith and fidelity to the Constitution.

Originalism with bite and living originalism provide theoretical responses to Segall’s challenges, but their positions must also accord with the reality of constitutional adjudication. Segall challenges originalists to reconcile their faith in unelected judges with a Constitution designed to provide governmental accountability through democratic processes. If they cannot do so, originalism is not a true account of our judicial processes but a fable designed to disguise a new version of legislation by the judiciary as the neutral application of legal rules.


Alexander Pearl: Originalism and Indians
Michael Ramsey

Recently published, in the Tulane Law Review, M. Alexander Pearl (Texas Tech): Originalism and Indians (93 Tul. L. Rev. 269 (2018)).  Here is the abstract:

Indian tribes, in the context of U.S. constitutional theory, do not fit.  They are an anomaly in American governmental structure.  Tribal governments exist today within the constitutional framework of the United States only by virtue of acrobatic displays of rhetorical legal reasoning and mythologized interpretations of history.  Originalist theory can provide a clear exit from the inconsistencies and inaccuracies underlying the foundation of federal Indian law.

Typically, scholars embracing an originalist position are thought of as conservative.  A conservative position is typically associated with opposition to tribal sovereignty.  In contrast to those traditional views, I argue that an originalist view of the Constitution can produce a very different constitutional understanding of Indian tribes that supports a robust construction of tribal sovereignty.  Today, a number of originalists occupy seats on the United States Supreme Court, but their respective records on Indian law decisions are distinct.  To advance an originalist constitutional theory supportive of meaningful tribal sovereignty, this Article compares the jurisprudence of Justice Thomas and Justice Gorsuch with respect to Indian law.  These two Justices, supposedly cut from the same originalist cloth, provide a perfect opportunity to critically examine the complexities of originalism as applied to Indian tribes.

(Via Larry Solum at Legal Theory Blog).


The President's Power to Suspend and Terminate Treaties
Michael Ramsey

The Trump administration's announcement that it is suspending the Intermediate-Range Nuclear Forces Treaty with Russia, and that it will terminate the treaty in six months unless Russia moves toward full compliance, has produced little reaction in legal commentary.  (I couldn't find anything on it on reliably anti-Trump national security law blogs like Lawfare or Just Security.)  But does the President have constitutional power to suspend or terminate treaties?  Apparently it's widely assumed that he does, perhaps as a result of historical and modern practice, as explained by Curtis Bradley in this article: Treaty Termination and Historical Gloss.  That isn't a sufficient answer from an originalist perspective, however.

My originalist answer is: yes, the President does have this power, so long as the suspension or termination is in accord with the terms of the treaty or with the international law of treaties.  As argued here, suspension and termination are part of the President's executive power in foreign affairs -- that is, foreign affairs powers that were viewed in the eighteenth century as part of the traditional executive power and which were not assigned elsewhere by the Constitution.  Like a number of other foreign affairs powers (such as establishing foreign policy, directing and removing ambassadors, and entering into executive agreements, it is not mentioned directly in the Constitution, and thus remains part of the "executive Power" vested in the President by Article II, Section 1.

The issue came up early in the post-ratification period, in 1793, when President Washington considered whether to suspend the U.S. treaties with France after the French Revolution.  In the cabinet, Treasury Secretary Hamilton argued for suspension and Secretary of State Jefferson argued against it -- but both assumed the President had the constitutional power.  Jefferson (who like Hamilton endorsed the idea of executive foreign affairs power) argued against suspension on the merits, but not on constitutional grounds.

The counterarguments are that suspension/termination power should lie with Congress or the Senate.  As to the Senate, it's true of course that entering into treaties requires approval of two thirds of the Senate.  But that does not suggest that it should take two thirds of the Senate to withdrawn.  It takes a majority of the Senate to approve an appointment to an executive office, we don't conclude that (as a constitutional requirement) removal of an executive officer needs majority Senate approval.  The Constitution is not founded on an idea of reciprocal powers (that is, that the same entity that approves something must consent to undoing it).

As to Congress, I agree that Congress can terminate treaties in areas within its enumerated powers.  In exercising its enumerated powers, Congress may find that an existing treaty is a barrier to achieving the outcome Congress prefers.  Terminating the treaty is thus necessary and proper for carrying into execution the enumerated power.  Indeed, in doing so Congress is not limited to terminating treaties in accordance with their terms.  But Congress can do so only in pursuit of an enumerated power, not generally.  Treaty termination is not a textually identified independent power of Congress (the way, for example, declaring war is).  Thus it does not displace the President's treaty termination power; rather, Congress and the President have concurrent powers.

To be clear, it's an entirely different matter if the President seeks to terminate a treaty in violation of the treaty's express or implied terms.  Treaties are the supreme law of the land, by Article VI, and the President is constitutionally bound to faithfully execute the law.  But in the case of the INF Treaty, the President is suspending it on the basis of Russia's violation of the treaty (as the international law of treaties allows the U.S. to do) and is terminating it on the basis of the termination provisions of the treaty (six months' notice).  As a result, he is acting within his executive power in foreign affairs.


Jeremy Telman: Originalism and Second-Order Ipse Dixit Reasoning in Chisholm v. Georgia
Michael Ramsey

D.A. Jeremy Telman (Valparaiso University Law School) has posted Originalism and Second-Order Ipse Dixit Reasoning in Chisholm v. Georgia (Cleveland State Law Review, forthcoming; 56 pages) on SSRN.  Here is the abstract: 

This Article presents a new perspective on the Supreme Court’s constitutional jurisprudence during the Early Republic. It focuses on what I am calling second-order ipse dixit reasoning, which occurs when Justices have to decide between two incommensurable interpretive modalities. If first-order ipse dixit is unreasoned decision-making, second-order ipse dixit involves an unreasoned choice between or among two or more equally valid interpretive options. The early Court often had recourse to second-order ipse dixit because methodological eclecticism characterized its constitutional jurisprudence, and the early Court established no fixed hierarchy among interpretive modalities. 

Chisholm, the pre-Marshall Court’s most important constitutional decision, illustrates second-order ipse dixit reasoning. The Justices issued their opinions seriatim, and they did not engage with one another’s reasoning. As a result, the Court issues a ruling, but there is no agreement as to the basis for that ruling. Rather, the Justices present us with five separate legal essays in which they ruminate on the nature of sovereignty and its relationship to the jurisdiction of the federal courts.

Scholarly engagement with the constitutional jurisprudence of the early Court has gained new urgency because originalist scholars recently have claimed that originalism informed the early Court’s approach to constitutional interpretation. This Article finds that contemporary filters do not capture the essence of eighteenth-century constitutional adjudication. Like modern textualists, the Justices of the Chisholm Court begin their inquiries with an examination of the constitutional text. However, the constitutional text rarely provided clear constraints on the early Court’s discretion because, to borrow language from New Originalists, their cases arose in the “zone of construction” where original meaning “runs out.” Justices chose among plausible arguments about the Constitution’s meaning. At key points, the Justices simply declared what the law was. They did so, not without justification, but also not based on evidence of the Framers’ intent or the original meaning of the constitutional text. 

Along with Professor Telman's paper on the Marshall Court, this line of inquiry is opening an important new front in the attack on originalism.  To the extent that originalism claims at least some normative force from being a traditional or longstanding approach to the Constitution, it's obviously a bit problematic if early post-ratification courts did not consistently use a version of originalism.

But for a counterpoint, at Law and Liberty, Carson Holloway (Heritage): Marshall, the Dartmouth College Case, and Originalism. Central point:

Nevertheless, Marshall continued, those who sought the intentions of the Framers were not asking the most important question. The key consideration, he suggested, was the words of the Constitution itself, understood according to their ordinary meaning. While “a particular and a rare case may not, in itself, be of sufficient magnitude to induce a rule, yet it must be governed by the rule, when established, unless some strong reason for excluding it can be given.” Put another way: “The case being within the words of the rule, must be within its operation likewise, unless there be something in the literal construction so obviously absurd, or mischievous, or repugnant to the general spirit of the instrument, as to justify those who expound the Constitution in making it an exception.”


This is to say that, for Marshall and for the Court, the immediate intentions of the Framers of the Constitution mattered less than the original meaning of the words they chose to employ in writing the document’s particular provisions. And, Marshall added, those words clearly embraced and therefore protected Dartmouth’s charter of incorporation. For a lawyer, he suggested, it was so obvious as to “require no argument to prove” that a corporate charter is a kind of contract. Moreover, Marshall noted, in being guided by the original meaning of the words used in the Constitution, the Court was simply following “the ordinary rules of construction.”

The originalist inquiry, then, is not an invention of contemporary conservatives. Nor is it an invention of John Marshall or even of the Constitution’s authors. It is rather part of the traditional approach to legal interpretation that the Founding generation had learned from English authorities like William Blackstone.


Robert Natelson: What Is Originalism?
Michael Ramsey

At the Epoch Times, Robert Natelson (Independence Institute) has this essay for a general audience: What Is Originalism? From the introduction:

When President Donald Trump nominated Neil Gorsuch and Brett Kavanaugh to the Supreme Court, it was widely claimed he was appointing “originalists.”

What is an originalist? Although originalists disagree among themselves over some details, they share one core belief: The courts should read the U.S. Constitution in much the same way they read other documents. Judges should not create special exceptions to accommodate politicians or favored groups.

The standard rules for interpreting legal documents—often called “canons of construction”—are centuries old. Some date as far back as the Roman Empire. Originalism is how the Founding Fathers expected the Constitution to be interpreted. If you examine the “Federalist Papers,” you’ll find occasional references to the canons of construction.

Most of the canons are designed to serve one fundamental principle: They help us understand a document the same way the document’s creators understood it.

This basic principle applies to almost all documents. For example, suppose your spouse sends you to the grocery store with a shopping list. The list tells you to buy vegetables. In reading it, you interpret the word “vegetables” as your spouse would have. You don’t “re-interpret” the word to mean “chocolate cake.” You remain faithful to your spouse’s intent, even if you wish he or she had written “chocolate cake” instead.


Lawrence Solum: Originalism versus Living Constitutionalism
Michael Ramsey

Lawrence B. Solum (Georgetown University Law Center) has posted Originalism versus Living Constitutionalism: The Conceptual Structure of the Great Debate.  Here is the abstract: 

This Essay explores the conceptual structure of the great debate about “originalism” and “living constitutionalism.” The core of the great debate is substantive and addresses the normative question, “What is the best theory of constitutional interpretation and construction?” That question leads to others, including questions about the various forms and variations of originalism and living constitutionalism. Originalists argue that the meaning of the constitutional text is fixed and that it should bind constitutional actors. Living constitutionalists contend that constitutional law can and should evolve in response to changing circumstances and values. This Essay advances a metalinguistic proposal for classifying theories as originalist or living constitutionalist and suggests that some constitutional theories are hybrids, combining elements of both theories.

(Via Legal Theory Blog.)