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35 posts from April 2019

04/30/2019

The Ninth Amendment and the Federalist Interpretation
Mike Rappaport

Andrew Hyman writes a response to my post that the Ninth Amendment refers to natural rights, although it does not protect them as constitutional rights. Hyman offers a different interpretation of the Ninth Amendment, one I call the Federalist interpretation (which I referred to in my earlier post).

Hyman argues that the:

Amendment means the Constitution’s enumeration of powers – and not its enumeration of rights – may be construed to deny or disparage unenumerated retained rights to the same extent as under the original unamended Constitution.

Why, you might ask, would the framers have suggested that the enumeration of powers can be construed to deny unenumerated retained rights?  It is not a mystery.  As James Madison wrote to George Washington on December 5, 1789: “If a line can be drawn between the powers granted and the rights retained, it would seem to be the same thing, whether the latter be secured by declaring that they shall not be abridged, or that the former shall not be extended.”

Hyman’s post is a bit brief. But it is worthwhile explaining his view in a bit more detail, since it is a significant one. Under this view, there was a concern that the Bill of Rights might be dangerous and lead to interpretations that would expand the powers of the federal government. How could that happen?

Consider the following example. The Federalists had argued that an amendment protecting freedom of the press was unnecessary because Congress did not have authority under the enumerated powers to regulate the press. But if a freedom of the press amendment was passed, that could be dangerous. People might argue that the passage of the freedom of the press amendment showed that Congress’s powers were broad enough to regulate the press. The reason is that a freedom of the press amendment might have seemed unnecessary if the enumerated powers did not extend to regulations of the press. The amendment would have been superfluous. To avoid that superfluousness, one should interpret the enumerated powers to allow regulation of the press. Therefore, a Bill of Rights might expand the interpretation of the enumerated powers. According to this argument, the Ninth Amendment was needed to eliminate this inference.

I used to prefer this interpretation of the Ninth Amendment and still think there is much to it. But ultimately I concluded that it did not fit the original meaning of the text as well as the interpretation I defended in my previous post.

Let me explain why. Madison’s original proposal for the Ninth Amendment was the following:

The exceptions here or elsewhere in the constitution, made in favor of particular rights, shall not be so construed as to diminish the just importance of other rights retained by the people; or as to enlarge the powers delegated by the constitution; but either as actual limitations of such powers, or as inserted merely for greater caution. [Emphasis added.]

Thus, Madison’s original proposal was concerned with two inferences: that the enumeration in the Bill of Rights would enlarge Congress’s enumerated powers (the italicized portion) and that the enumeration would disparage the rights retained by the people.

But Madison’s proposal was changed into the Ninth Amendment, which states: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”  Clearly, the italicized language has been taken out.  Instead, it is only the language about the retained rights that remains.

Thus, it is hard to argue that the Ninth Amendment merely protects against the expansion of Congress’s powers. Given that the language about rights retained by the people typically referred to natural rights, I believe the best public meaning of the language here is a reference to those natural rights. Now, it might be possible that the Ninth Amendment is also referring to the expansion of enumerated powers. If so, then the Ninth Amendment will have a meaning that protects against the freedom of press inference described above. But I do not believe that the best meaning can deny that natural rights are at least part of what is being referred to here in the Ninth Amendment.

The President and Obstruction, Specifically
Michael Ramsey

I had not intended to write anything specific about the Mueller investigation beyond my general sketch of the constitutional aspects of the President and obstruction of justice.  But I think some important commentary is misunderstanding – or glossing over – a fundamental point about the President’s role (e.g., here from Quinta Jurecic at Lawfare).  So here are some specifics.

It is not sufficient to say that a President’s attempts to influence (or “interfere with”) an investigation or prosecution amount to obstruction of justice.  This is the tone of a good bit of commentary regarding the current President: that is, that the only substantial question in the case of the Mueller report is whether the President in fact tried to influence investigations or prosecutions.  But that is entirely the wrong way to look at it.  The key question is whether the President failed to act in his understanding of the public interest in influencing the investigations or prosecutions.

To sum up what I wrote before, the President is the nation’s chief prosecutor, by Article II, Section 1 of the Constitution.  Other federal prosecutors and investigators are his agents and instruments as a constitutional matter, although the executive branch may choose to impose some administrative separation.  (Again, I leave aside the question whether Congress can alter that arrangement by statute, per Morrison v. Olson, because Congress has not done so here).  That means that when the President "influences" an investigation or prosecution, he acts in his role as chief prosecutor.

That does make him beyond the obstruction of justice statutes.  The President has a constitutional duty of faithful execution of his office and a constitutional duty to take care that the laws are faithfully executed.  I read this language to mean that he can indeed obstruct justice, within the meaning of the statutes, when he acts against his duty of faithful execution.  Thus when a President takes bribes, destroys evidence or threatens witnesses, we may be confident he is acting against the public interest and thus contrary to his duty of faithful execution.

But it is an entirely different matter when the President seeks to influence or direct – or even discontinue – an investigation or prosecution in his role as chief prosecutor.  There are many reasons a prosecutor might do so in the public interest.  Making that decision is the essence of prosecutorial discretion.

As a result, the fact (if it is a fact) that the President sought to influence or discontinue investigations or prosecutions is not, standing alone, evidence of obstruction of justice.  Without more, it is merely evidence that he exercised his role as chief prosecutor to supervise prosecutions (prosecutions mostly left to his subordinates, but nonetheless subject to his constitutional oversight).  There needs also to be evidence that in doing so he was not acting in what he believed to be the public interest.  And absent bribe-taking, evidence destruction or the like, it is unlikely that such a case can be made.

Consider, for example, one of the claims against President Trump: that he asked then-FBI Director Comey to go easy on Michael Flynn in the prosecution for lying to the FBI.  As chief prosecutor, the President had constitutional authority over the Flynn matter.  Asking (or even ordering) Comey to go easy on Flynn is simply part of that authority.  The President could have ordered Comey to shut down the prosecution altogether, and fired him if he refused.  (For that matter, the President could have ended the whole matter by pardoning Flynn).  The idea that the much lesser act of suggesting leniency amounts to obstruction of justice misunderstands the President’s role and authority.

Of course, if the President asked Comey to go easy on Flynn for reasons not in the public interest, that would be a different matter.  But there’s no evidence of this.  It’s entirely plausible that the President thought Flynn’s supposed wrongdoing was debatable or inconsequential and that Flynn’s previous service should count in his favor.  That would be sufficient to support a request for leniency.

The same analysis applies to Mueller’s investigation of Russian collusion.  As a constitutional matter the President had authority over it.  As chief prosecutor he could decide to influence it or discontinue it (or to dismiss Mueller and find a replacement).  The President chose largely to allow Mueller to proceed independently and to cooperate with him.  But the President could decide that the investigation was not in the public interest or that Mueller was not the right man for the job. Again, this would not be obstruction of justice; it would be acting in his constitutional role – so long as the President understood himself to be acting in the public interest.

To be sure, it’s possible that the President did not believe himself to be acting in the public interest to the extent he sought to influence or curtail Mueller’s investigation.  (I leave aside factual questions of whether such attempts occurred).  Such a conclusion is somewhat more plausible than in the case of the Flynn prosecution, because the investigation potentially implicated the President himself.  But that is hardly decisive.  Especially because Mueller ultimately could not demonstrate any collusion, it’s very likely that the President considered the investigation a pointless hindrance to the performance of his official duties.  The question is not whether the President acted in ways that benefited himself; the question is whether he acted in ways he believed harmed the public interest.  It is only the latter that would take the case from the constitutional exercise of prosecutorial discretion to the violation of the duty of faithful execution.

I don’t think any of this analysis is inconsistent with what the Mueller report actually says (I confess to not having read all of it), although it may be contrary to some of its implications.  The report emphasizes that the question is whether the President acted “corruptly” or contrary to his duty of faithful execution.  I understand that to be parallel to my assessment.  But that would seem to require more proof of a bad motive than the report supplies.  The President’s disagreement with the investigation is not evidence of a corrupt motive; it’s evidence that he understood the public interest differently from his critics.

Two final points:  First, the Mueller report argues that its assessment of how the obstruction statutes interact with the president’s constitutional powers should not unduly chill the exercise of the President’s Article II powers.  I agree.  But only if the President’s actions to direct prosecutions and investigations (including of himself) are not assumed to be done from corrupt motives.  The burden should be on those claiming wrongdoing to prove it.

And second: The likely response to my assessment is that it puts the President in charge of investigating himself and thus effectively insulates him from investigation.  To that there are in turn two responses.  One is that it is the Constitution’s design, even if not an ideal one.  The second is Justice Scalia’s response in his Morrison dissent.  The President faces political constraints.  It is no accident that President Trump let the Mueller investigation proceed largely (if not entirely) unchecked despite his disagreement with it.  And in any event, Congress has the final say by invoking (or not invoking) the impeachment process.  That is the Constitution’s solution.

04/29/2019

John McGinnis on the Flexible Constitution
Michael Ramsey

At Law & Liberty, John McGinnis:  Originalism Protects the Timelessness of the Constitution (responding to this post by Michael Greve).  From the core of the argument: 

... [W]hat is most striking about [Professor Greve's] position is that he seems at times to adopt the progressive view of an evolutionary rather than a timeless Constitution. Michael calls “a timeless Constitution above all politics” a “mirage.”

But the Constitution itself is indeed in one sense timeless and it is this timelessness that energizes a politics to address change. As I said in my remarks and Mike Rappaport and I have expounded at greater length, the Constitution interpreted timelessly itself contemplates politics to address social change in three ways.

First, the states themselves have ample powers subject to relatively few restrictions. Their experiments to address social change can be readily adopted by other states in a continental republic with a free press.

Second, Congress has substantial but not unlimited powers to legislate. And the powers are often stated as principles, like the Commerce Clause, that expand in scope even if they do not change in meaning as the nation matures. The Necessary and Proper Clause allows them to choose the means to do this, so long as their decisions are bona fide attempts to effectuate these powers and do not try to exercise other “great powers” denied by the enumeration.

Finally, the Constitution creates an amendment process by which to replace provisions that have become outmoded.  And here is where originalism comes in again. The high politics of the amendments will not work without originalism. If judges can change the constitution, which includes interpreting it in ways not contemplated by the Framers, the judiciary rather than the people will control constitutional change. Indeed ordinary politics may be compromised too as people seek to have judges unconstrained by the original meaning do what they cannot persuade legislators to do in legislation.

How Old is Originalism?
Mike Rappaport

Michael Greve recently published a piece entitled Originalism as Ideology which criticizes originalism and argues that it may have “run its course.”  Greve’s essay covers a lot of ground, but I thought it might be useful to discuss one key aspect of it that is of wider concern: how old is originalism?

According to Greve, originalism was born approximately in 1982 as a means of combatting Warren Court judicial activism.  He believes that in some ways it has been stupendously successful, but it is time to move on.

But is this right?  In my view, Originalism is not a thirty seven year old ideology, but a legal idea that is as old as the Constitution.  The main interpretive approaches at the time of the Constitution's ratification were originalist.  First, Alexander Hamilton’s interpretive approach was originalist.  Under original methods originalism – which in my view is the best originalist approach – one should look to the interpretive rules that existed at the time to discern its original meaning.  As Hamilton said in 1791, “whatever may have been the intentions of the framers of a constitution, or of a law, that intention is to be sought for in the instrument itself, according to the usual and established rules of construction.”  Using the conventional methods was the dominant approach in the early years.

The principal competing approach was that of Thomas Jefferson, which viewed the Constitution as a compact among the states.  Jefferson’s approach was also originalist.  He argued that one should look to the original intent as evidenced by the actions of the ratification conventions.  Significantly, Jefferson also was arguing for applying the conventional methods at the time – he simply believed that different conventional methods applied because he thought of the Constitution not as fundamental law, but as a compact among the states.

Thus, originalism was dominant from the beginning.  And it continued to be dominant through the Civil War.  At some point after the Civil War, it began to weaken a bit.  Finally, it was exiled through a combination of the Progressive criticisms of the Constitution and New Deal court packing.  By the 1940s, originalism was dead.  At first, it was replaced by a form of judicial restraint, and then by Warren Court judicial activism.  Neither of these approaches was friendly to originalism.

Eventually, some people opposed to these movements – especially Warren Court activism – came to settle on originalism and the modern originalism that Greve talks about emerged.  But it is a mistake to see this emergence as the birth of originalism.  Instead, it was an attempt to rediscover originalism.

It has taken some time for a genuine originalism to be rediscovered (what Greve refers to as originalism being “repeatedly reformulated”).  But this should not be surprising.  Originalism had been dormant for many years.  And when it became active again, it faced many obstacles.  Besides figuring out the historical methods for determining the original meaning, one needed to figure out how to apply these methods to a Constitution that was no longer a generation or two old, but that had been in existence for more than two centuries.  So modern interpreters needed to figure out how to discover the meaning of older words from a different legal world.  And originalism also needed to defend itself against a modern academy that was filled with theoretical arguments for different positions.

So modern originalism has changed a bit over its 37 years.  But that is all understandable when one realizes it is merely seeking to rediscover the original method for interpreting the Constitution and to defend those methods against modern critiques.

Greve says it is time to recognize that originalism has passed its period of usefulness.  By contrast, I would say it is time to recognize what modern originalism is and that it is attempting to restore the original methods for interpreting our Constitution.

04/28/2019

What an “Inalienable Natural Right” Originally Meant (Updated)
Andrew Hyman

In Kansas, the first section of the state constitution’s bill of rights says this:
 
1. Equal rights. All men are possessed of equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness.
 
In a widely-reported April 26 opinion, the Kansas Supreme Court asked:  “Is this declaration of rights more than an idealized aspiration?”  The court answered “yes.”  And then the court went on to say that abortion is part of “liberty” and so the state legislature is subject to strict scrutiny under this clause (Justice Stegall wrote a dissent).
 
Some other state constitutions have similar clauses, and of course there is similar language in the Declaration of Independence.  An interpretation of this clause like the Kansas Supreme Court gave this week could supercharge the ability of state courts to undo almost any state law that they strongly disagree with.  So, it seems worthwhile to figure out if that would really be legitimate based upon original meaning.
 
This clause of the state constitution was adopted in 1859 during a convention in Wyandotte, Kansas.  According to the full transcript of the debates at that convention, it does appear that they meant for this clause to be more than an idealized aspiration, but that raised a problem for them: if liberty, or the control of a man’s person, is a right that cannot be alienated, then how could the state ever put anyone in jail for committing a crime?  One delegate said it would become impossible to “make a man amenable to any criminal law,” another complained that such a clause would “open all your jails,” and yet another asked how it would be possible to carry a defendant into court “without violating this clause.”  Then Samuel Kingman (later Chief Justice of the Kansas Supreme Court) rose to defend a revised and final version of the clause, and his defense was not even close to the modern doctrine of fundamental substantive rights.  On the contrary, the argument by Kingman that won the day was this:
 
I hold that this use of the word "inalienable," is misunderstood and misinterpreted in this House.  A man's right to his life is inalienable in law under all circumstances. He has no right to sell or give it away — no right to dispose of it at all. But the word "inalienable" has a fixed meaning in law. And when in the common use of the word we say, that a man cannot alienate his property, none would suppose we mean to say, he cannot forfeit his property.
 
Even today, one sense of the word “alienation” is “The voluntary and complete transfer from one person to another.”  And so, according to Kingman (putting aside the clause’s equality requirement), the clause in question does not limit what the state can do to a person but rather limits what a person can legally do to himself.  What I find remarkable is that the Kansas Supreme Court mentioned and quoted Kingman well over a dozen times in its opinion this month, and yet never even alluded to the part where Kingman said the meaning of the word “inalienable” had been misunderstood.  So perhaps the court’s opinion contained elements of originalism, but not nearly enough.  If it had, the court likely would have found that this clause affirms legislative power to stop people from killing themselves, from enslaving themselves, or from taking other actions which disable them from pursuing happiness.
 
UPDATE FROM ANDREW (April 28, 2019): At page 63 of the Kansas Supreme Court's opinion, the court did repeat part of the Kingman quote that is blockquoted above, in particular the fourth and fifth sentences. The court then cites John Locke and Randy Barnett regarding natural rights that the state should defend, but does so as if the word "inalienable" were not present in the clause at issue, and as if the rest of the Kansas bill of rights does not protect many natural rights regardless of whether they are inalienable.

04/27/2019

William Baude: Adjudication Outside Article III
Michael Ramsey

William Baude (University of Chicago - Law School) has posted Adjudication Outside Article III (133 Harvard Law Review (forthcoming)) (61 pages) on SSRN.  Here is the abstract: 

Article III requires federal courts that exercise federal jurisdiction to be given life tenure and undiminished compensation, limiting Congress’s ability to influence the judiciary. But from the beginning, we have accepted certain forms of adjudication outside Article III – state courts, most obviously, but also territorial courts, administrative adjudication of public rights, and military tribunals. The question is why.

This article attempts to provide an answer. It argues that it is a mistake to focus on the act of adjudication itself; adversary presentation about the application of law to fact is simply a procedure, and not a procedure uniquely limited to Article III courts. Instead, the constitutional question is one of government power. What kind of power has the tribunal been vested with and what it is trying to do with that power? 

With this framework in view, the structure and scope of non-Article-III adjudication becomes clearer. Some courts exercise the judicial power of some other government. This is why territorial courts and state courts are constitutional. Some bodies exercise executive power, subject to the constraints reflected by the Due Process Clause. This is why administrative adjudication of public rights and military trials are constitutional. Some exercise no governmental power, and can proceed only as an adjunct to another entity, or on the basis of consent. This is the only basis on which magistrate judges and bankruptcy judges can proceed, and may render some of their current behavior unconstitutional.

(Via Larry Solum at Legal Theory Blog, who says: "Highly recommended.  Download it while it's hot!")

04/26/2019

Michael Greve: Originalism as Ideology
Michael Ramsey

At Law and Liberty, Michael Greve: Originalism as Ideology.  From the introduction: 

I propose to explore originalism as ideology. What I mean by “ideology” is not partisan commitment but the original, Hegelian meaning: an idea whose progenitors deny, or cannot bring themselves to reflect upon the contingent conditions of that idea’s origin or creation—a thought or theory that parades around as timeless truth, as opposed to recognizing that it is a child of its time. In my view, originalism has been way too ideological in that sense. It would benefit from reflection and candor.

Originalism originated circa 1982 as a bit of a good-natured joke. Conservatives needed some respectable way of telling Justice Brennan and Justice Marshall, you can’t just make things up. “Strict construction” had failed (too Nixonian); so had Alex Bickel’s “passive virtues” (too fusty, and futile after the 1960s and certainly after Roe). Originalism looked like it might work. It seemed to offer a big tent for conservatives of all stripes and, at the same time, a program beyond partisan ideology and culture wars. This isn’t just about abortion or the death penalty, originalism seemed to be saying: we have a neutral program—a method of interpretation. Obviously, that was never quite true; but it had a certain surface plausibility.

It soon turned out that the originalist program had to be reformulated—not once, but repeatedly. Some of the reasons were theoretical; others political. Initially originalism was supposed to be about adhering to the Founders subjective intentions. That position is hard to defend as a serious theory and, worse, seems to be saying that Brown v. Board was probably wrong. Michael McConnell solved that latter problem in a famous article; and originalism migrated to a theory of “original public meaning.” That position is still au courant. But it, too, has been modified—again, for a combination of political and theoretical reasons. As for politics: in academic precincts, there must be a right to same-sex marriage if you want to remain part of the conversation. And there is, Steven Calabresi and other noted originalists purport to have shown: right there in the Fourteenth Amendment.  Other originalists have been cagier, although I wonder how long that can last.

(Thanks to Andrew Hyman and Mark Pulliam for the pointer).

Also at Law and Liberty, Mike Rappaport has a response:  How Old is Originalism?

For me, a telling paragraph in Professor Greve's critique is this one:

A far more consequential example [of the problems with originalism]: the separation of powers, and the “unitary executive.” We were supposed to celebrate Chadha (the “legislative veto” case) and we weren’t supposed to question the “unitary executive” because President Reagan and his Justice Department fought it ["fought for it," I think is intended] and, more important, because it wasn’t just a theory or doctrine but came directly from the Constitution’s text: it vests the Executive Power, all of it, in a President. That uncompromising position makes it hard to entertain second thoughts about presidential government, as many serious people now do; or to put the “unitary” piece of the puzzle together with an executive state that’s obviously out of control. 

No, accepting the unitary executive as an aspect of the text's original meaning does not "make[] it hard to entertain second thoughts about presidential government."  You may entertain all the second thoughts you wish.  But (if you are an originalist) you can't implement those thoughts through the courts under the cover of a supposed reinterpretation of the Constitution (in fact, by persuading five Justices to share your second thoughts).

Professor Greve is, in short, a conservative living constitutionalist.  Like most living constitutionalists, he wants to dress his modern intuitions up with some connection to the Constitution and the founding era, but he doesn't want those connections to get in the way of any "second thoughts" he might have about the modern efficacy of what was actually written in the Constitution. 

And that's fine.  Living constitutionalism is a worthy opponent of originalism, and there's no reason why living constitutionalism should necessarily lean left.  Indeed, I think the broader discussion of constitutional interpretation would be a more balanced and useful one if there were more conservative living constitutionalists.  Among other things, people on the left might find that originalism has more virtues than they supposed.

04/25/2019

Thomas Colby: Originalism and Structural Argument
Michael Rmasey

Thomas Colby (George Washington University Law School) has posted Originalism and Structural Argument (113 Northwestern University Law Review 1297 (2019)) (39 pages) on SSRN.  Here is the abstract:

The "new originalism" is all about the text of the Constitution. Originalists insist that the whole point of originalism is to respect and follow the original meaning of the text, and that originalism derives its legitimacy from its unwavering focus on the text alone as the sole basis of higher law. And yet, many leading Supreme Court decisions in matters of great importance to conservatives—in opinions authored and joined by originalist judges, and often praised by originalist scholars—are seemingly not grounded in the constitutional text at all. They rest instead on abstract structural argument: on freestanding principles of federalism and separation of powers in lieu of the original meaning of any particular provision of the Constitution. This Essay demonstrates and examines the underexplored tension between original meaning textualism and structural argument.

This is a very important paper by one of originalism's most insightful critics.  A central point is that originalism is not necessarily the same as textualism (a point I've also made with respect to Justice Scalia's judicial decisionmaking in this article, which Professor Colby cites).  Originalists (especially originalist judges) are sometimes criticized for being nonoriginalist when they use structural reasoning -- but structural reasoning is not necessarily nonoriginalist; it's just non-textualist.

04/24/2019

New Ratification Documents Now Available
Rob Natelson

I've written six short postings, available at the Independence Institute website, summarizing the implications for constitutional meaning of documents in the three newly published volumes of the Documentary History of the Ratification of the Constitution.   Scholars may find them useful as a sort of guide to the "What's New" in those volumes. 
 
The new volumes print material from the Pennsylvania ratification debates that the Documentary History series formerly made available only on microfiche. That microfiche was unindexed and very hard to read. The new volumes make the material readily accessible.
 
Some of the new material is important enough that perhaps it should have been in the initial printed version---for example, four essays on the Constitution's meaning written by Tench Coxe.
 
There are no substantive surprises in any of this material, and much of it buttresses conclusions already reached by objective and careful originalist scholars. (You know who you are!) I'm gratified to report that there is ample corroboration of conclusions reached in my series of articles on the original meaning of discrete constitutional clauses.
 
Anyway, these six posts summarize the most important content of the three volumes. In preparing them I did not merely check the volume indices. Rather, I spent many hours leafing through every page of all three volumes. Perhaps that will relieve others from having to do the same.
 
The descriptions and URLs are below.
 
 
 
3. Various authors on paper money.
 
4. Comments by various authors that shed light on the "convention for proposing amendments" in Article V.
 
 
6. Multiple uses of the word "commerce," tending to show its limited, mercantile meaning.

The President and Obstruction, Briefly
Michael Ramsey

At Lawfare, Josh Blackman has an interesting analysis of the federal obstruction of justice statute as it relates to the Mueller report.  I think we have the same basic approach and conclusions although my analysis is a little different.

In this brief post I won’t say anything specific about the Mueller report or the current President.  Rather, my goal is to sketch an outline of the relationship between the statute and the constitutional office of the President.  There are, I think, two basic points.

(1) As a general matter of the obstruction of justice statute applies to the President.    It is written broadly to apply to everyone.  The U.S. Constitution does not create a presidency that is above the law (in fact, the original design was a President personally constrained by law, in contrast to the English monarch).  So there is no general constitutional problem with laws applying to the President.  Moreover, specifically on the obstruction issue, the President has the duty to take care that the laws be faithfully executed (Art. II, Sec. 3).  A statutory obligation not to interfere with due enforcement of law parallels the President’s constitutional obligation.

As a result, the President violates the obstruction statute by, for example, destroying or hiding evidence, lying or directing others to lie to investigators, and similar actions.  Whether the President can be prosecuted for these actions while in office is a separate question.  But as to violations, the President seems no more above the law with respect to obstruction than he is above other laws such as those against murder, bribery, etc.  Nothing in the Constitution’s text or background suggests otherwise.

(2) However, the President is the chief law enforcement officer of the United States.  Article II, Section 1 vests the President with “the executive Power,” and whatever else executive power may mean, its core meaning embraces law execution.  While federal law execution is typically done by presidential agents in the Department of Justice, those agents act as extensions of the President and in the service of the President’s executive power.  (Whether Congress can insulate some law enforcement from the President’s complete oversight is a separate question; my view is that it cannot, under the Constitution’s original meaning, for the reasons stated by Justice Scalia’s dissent in Morrison v. Olson.  But there is currently no statute of the type that was at issue in Morrison).

A core component of law enforcement power is the power of prosecutorial discretion, or the power not to pursue an investigation or prosecution.  This power can be exercised on at least three grounds: (1) that there is not enough evidence of a violation; (2) that the violation was inadvertent, technical, or otherwise undeserving of punishment; or (3) that the prosecution would be detrimental to the public interest.  (There may be others but these are the important ones for the present discussion).

Suppose, for example, that the Secretary of State is alleged to have mishandled classified information in violation of federal law.  The President might nonetheless decide not to pursue an investigation or prosecution based on a conclusion that (1) the Secretary did not actually mishandle classified information; (2) the Secretary did mishandle classified information but it was an accidental, incidental violation that didn’t cause material harm; or (3) the Secretary did mishandle classified information but the investigation/prosecution would damage the national interest by, for example, threatening national security or resulting in undue political divisiveness.  In any of these situations the President, as the chief law enforcement officer, could direct that investigations and prosecutions be discontinued (and could fire any agents who disagreed).

In blocking the prosecution of the hypothetical Secretary, the President is not obstructing justice.  Rather, the administration of justice (that is, the exercise of the executive power of law enforcement) includes the power to decline to prosecute.  (If it were otherwise, prosecutors would routinely be engaging in obstruction of justice.)  The obstruction of justice statute, drafted against the background of the traditional power of prosecutorial discretion and the President’s constitutional role of chief law enforcement officer, surely does not mean otherwise.

Of course, prosecutors (including the chief prosecutor, the President), might fail to investigate or prosecute for inappropriate reasons.  If a prosecutor takes a bribe in return for halting a prosecution, that is a wrongful act.  If a prosecutor fails to bring a prosecution solely because it would implicate family or friends (or himself), that is a wrongful act.  Prosecutorial discretion is not a power to halt prosecution for any reason; it is the power to halt prosecution in the interests of justice, for preservation of prosecutorial resources, or to prevent broader harms to the public interest.

But the range of reasons for exercising prosecutorial discretion leave prosecutors (including the President) with very broad authority to limit or discontinue investigations and prosecutions.  Absent proof of a bribe or some other direct evidence of wrongful motive, a prosecutor will typically be able plausibly to assert an appropriate ground for the exercise of discretion.  Thus other than in a very unusual case, a prosecutor’s decision not to pursue an allegation (and to direct subordinates not to do so) isn’t an obstruction of justice; it’s the ordinary course of law enforcement.  And the fact that we might disagree with the prosecutor’s decision doesn’t make it otherwise.

A final thought: one might say that the matter is different if the investigation/prosecution is of the President himself or his close associates.  But I do not see a constitutional basis for this distinction.  The President holds the executive power with respect to all prosecutions, including of himself and his associates, while he is in office.  The President might choose to recuse himself, but that does not appear to be a constitutional obligation.  And the President might easily conclude that such a prosecution should be discontinued for appropriate reasons (including, for example, that the alleged offense did not occur).  This does not mean the President is above the law.  The President’s decision not to pursue an allegation is not binding on the next President.  And it is not binding on Congress; if Congress concludes that the President has misused his constitutional authority, Congress may pursue impeachment. 

In sum, the obstruction of justice statute constrains the President in some ways.  But it does not prevent the President from using the constitutional power of prosecutorial discretion to limit or discontinue investigations and prosecutions.  Such actions are part of the President’s executive power – constrained not by statute but by Congress’ power of impeachment and the electorate’s power to choose a different chief executive.