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35 posts from May 2019


More from Seth Barrett Tillman on George Washington and Emoluments
Michael Ramsey

At the New Reform Club, Seth Barrett Tillman has further evidence on George Washington's view of emoluments: DOJ Response to Office of Inspector General Report (and, by implication, to Jonathan Hennessey).  From the conclusion: 

That is, the land sold by the D.C. Commissioners was land donated to the United States and was public property when purchased by Washington. In addition, Washington stated that “the present Proprietors shall retain every other lot” beyond those ceded and would “be allowed at the rate of Twenty five pounds per acre” as payment “for such part of the land as may be taken for public use, for square, walks, &ca.” [Id.] Consistent with this understanding, one amicus has explained that although the Commissioners “did make certain payments to the landowners . . . , those payments were not [to pay] for auctioned land, such as the lots Washington bid on,” but were for land appropriated for public use at £25 per acre, and “[n]o payments were made to the proprietors for the land that was sold at auction. The proprietors gifted such land to the government in the expectation that their other properties in the new federal capital would become more valuable.” [quoting Brief of Amici Curiae Scholar Seth Barrett Tillman and the Judicial Education Project at 14–16, DC & MD v. Trump, No. 18-2488 (4th Cir. Jan. 31, 2019), Doc. No. 31-1, 2019 WL 411728.]
In any event, the Court need not decide this disagreement as to the historical record. Again, for purposes of interlocutory appeal, it is enough that reasonable jurists could conclude that Washington received benefit from the federal government through the land sale transactions; that if Plaintiffs’ interpretation of “Emolument” were correct, then Washington likely violated the Domestic Emoluments Clause; and that this historical precedent therefore casts doubt on Plaintiffs’ interpretation.
[Note: this is an excerpt from the Department of Justice's Supplemental Reply and Motion to Stay Proceedings at 14–16, Blumenthal v. Trump, Case 1:17-cv-01154-EGS (D.D.C. May 28, 2019).]
For further earlier thoughts by Professor Tillman on Washington and emoluments, see here.
Especially in light of this evidence, it does seem quite plausible that an arm's length purchase-and-sale transaction was not understood as an emolument.


Is the Yemen Conflict Unconstitutional?
Michael Ramsey

At Vox, Tara Golshan:  Trump ignored Congress on war powers. Constitutional scholars want Democrats to take him to court. From the introduction:

A group of constitutional scholars and lawmakers want House Speaker Nancy Pelosi to take President Donald to the Supreme Court over the war in Yemen.

Their case is straightforward: Trump is unilaterally involving the United States in war, and that’s unconstitutional. For four years, the United States has participated in a war in Yemen that was never authorized by Congress and that Congress expressly told Trump to withdraw from. Trump ignored the directive. Now, as the White House escalates tensions with Iran, there’s growing concern that unless legal action is taken, Congress will cede more war powers to Trump.


“The president’s veto [of the bill to end involvement in Yemen] doesn’t end this conversation,” Bruce Ackerman, a constitutional law scholar with Yale University, told Vox. He’s one of a diverse group of legal experts who have sent Pelosi a letter urging her to take legal action.

And from further along:

The United States got involved in Yemen four years ago when Saudi Arabia and its allies began a military campaign in Yemen against Iranian-backed Houthi rebels. The US is providing Saudis with intelligence, arms and ammunition, and, until late last year, fuel for their warplanes.


“This is a moment of truth, both for the congressional war power and for the Supreme Court of the United States,” Ackerman said. “Does the Supreme Court of the United States — and its claim of originalism — is that supposed to be taken seriously?”

I signed the letter (which isn't public yet -- I'll provide a link once it is).  The hard question, I think, it whether the U.S. involvement in Yemen is a "war" for constitutional purposes.  Of course I think that under the Constitution's original meaning only Congress has the power to initiate war (or authorize the President to initiate it).  It seems implausible that Congress has authorized the Yemen action, both because of the recently vetoed bill but even more so because the Yemen rebels appear to have nothing to do with al Qaeda.  (Congress' 2001 authorization to use force against al Qaeda and its allies appears to be the only remotely plausible basis of congressional authorization).   I also think it is appropriate for courts to decide some (though not all) war powers questions, as discussed here.  So that leads back to the question whether the U.S. is engaged in "war" in Yemen.  And that depends both on facts on the ground (which may be somewhat uncertain) and on the difficult question of when military support for an ally becomes a war.  (It's much less clear in Yemen than, for example, with respect to President Obama's intervention in Libya, which I discussed in this article).  But in any event it seems entirely appropriate for Congress to raise objections.


Hernandez v. Mesa and the Extraterritorial Constitution Return to the Supreme Court
Michael Ramsey

Yesterday the Supreme Court granted certiorari (again) in Hernandez v. Mesa, the case of the border patrol agent (Mesa) who, while in the United States, shot across the border and killed a Mexican citizen (Hernandez) in Mexico.  The case reached the Court in 2017 but was remanded without a definitive ruling; after the Fifth Circuit reaffirmed its ruling for Mesa, it's back.

The core issue of originalist interest in whether the Constitution protects non-citizens outside the United States.  Here are two guest posts on that issue from Andrew Kent (Fordham) from the time that the Court first heard the Mesa case.

Extraterritorial Constitutional Rights: How Does Originalism Answer the Question in Hernandez v. Mesa?

Extraterritorial Constitutional Rights: How Does Originalism Answer the Question in Hernandez v. Mesa? Part 2

Unfortunately the Court isn't likely to reach this issue, as it has set itself up to decide the remedy first.  Specifically, the Court limited its grant to the question:

Whether, when the plaintiffs plausibly allege that a rogue federal law-enforcement officer violated clearly established Fourth and Fifth amendment rights for which there is no alternative legal remedy, the federal courts can and should recognize a damages claim under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics.

And the Court's approach to Bivens questions has been strongly nonoriginalist, whatever one may think of its outcomes.  (Here is a post I wrote many years ago on originalism and Bivens).


New Book: "Fidelity and Constraint" by Lawrence Lessig
Michael Ramsey

Recently published, by Lawrence Lessig: Fidelity & Constraint: How the Supreme Court Has Read the American Constitution (Oxford U. Press 2019).  Here is the book description from Amazon: 

The fundamental fact about our Constitution is that it is old -- the oldest written constitution in the world. The fundamental challenge for interpreters of the Constitution is how to read that old document over time. 

In Fidelity & Constraint, legal scholar Lawrence Lessig explains that one of the most basic approaches to interpreting the constitution is the process of translation. Indeed, some of the most significant shifts in constitutional doctrine are products of the evolution of the translation process over time. In every new era, judges understand their translations as instances of "interpretive fidelity," framed within each new temporal context. 

Yet, as Lessig also argues, there is a repeatedly occurring countermove that upends the process of translation. Throughout American history, there has been a second fidelity in addition to interpretive fidelity: what Lessig calls "fidelity to role." In each of the cycles of translation that he describes, the role of the judge -- the ultimate translator -- has evolved too. Old ways of interpreting the text now become illegitimate because they do not match up with the judge's perceived role. And when that conflict occurs, the practice of judges within our tradition has been to follow the guidance of a fidelity to role. Ultimately, Lessig not only shows us how important the concept of translation is to constitutional interpretation, but also exposes the institutional limits on this practice. 

The first work of both constitutional and foundational theory by one of America's leading legal minds, Fidelity & Constraint maps strategies that both help judges understand the fundamental conflict at the heart of interpretation whenever it arises and work around the limits it inevitably creates.

(With blurbs from Jack Balkin, Richard Fallon, Sanford Levinson, David Strauss and Cass Sunstein).


Abolish the Feres Doctrine
Michael Ramsey

In the New York Times, Stephen Vladeck (Texas): Congress Should End a ‘Harsh and Unfair’ Rule That Blocks Troops From Court.  From the introduction:

The Supreme Court justices Clarence Thomas and Ruth Bader Ginsburg don’t agree on much. On Monday, however, they both dissented from their colleagues’ decision to deny review of Daniel v. United States, in which Walter Daniel, whose wife, Rebekah Daniel, died four hours after giving birth to their daughter, had brought a suit for medical malpractice and wrongful death. He claimed that his wife’s death resulted from the negligence of the medical staff.

In any other context, this case would hardly attract the Supreme Court’s attention. But Mr. Daniel’s wife was a lieutenant in the United States Navy and was treated at a military hospital, and so his suit on her behalf was foreclosed by the Supreme Court’s 1950 decision in Feres v. United States. That unanimous decision bars any and all lawsuits brought by service members against the federal government for injuries that “arise out of or are in the course of activity incident to” their military service.

And from later on:

As Justice Antonin Scalia put it in 1987, “Feres was wrongly decided and heartily deserves the ‘widespread, almost universal criticism’ it has received.” Not only did the court in 1950 read into the tort claims act an exception with no textual support; subsequent decisions broadly construed Feres’s scope so that it is virtually impossible for service members to recover damages from the government for almost any negligence or other misconduct they suffer while serving. In the process, Feres treats service members more harshly than any other Americans, even in contexts that are entirely analogous to civilian life — like medical malpractice claims at stateside hospitals. It would be one thing if Congress had expressly required such an unjust and unfair result. But nearly every contemporary court and commentator agrees that it did not — and that the result of the decision, in Justice Scalia’s words, has been “unfairness and irrationality.”

Here's Justice Thomas, dissenting from denial of certiorari in Lanus v. United States (2013):

The [Federal Tort Claims Act (FTCA)] is a sweeping waiver of sovereign immunity that, under specified circumstances, renders the Government liable for money damages for a variety of injuries caused by the negligence of Government employees. 28 U. S. C. §1346(b)(1). As written, the FTCA “renders the United States liable to all persons, including servicemen, injured by the negligence of Government employees.” United States v. Johnson, 481 U. S. 681, 693 (1987)
(SCALIA, J., dissenting). While the Act contains a number of exceptions to this broad waiver of immunity, “none
generally precludes FTCA suits brought by servicemen.” Ibid. Congress contemplated such an exception, Feres, supra, at 139, but codified language that is far more limited. See §2680(j) (excluding from waiver “[a]ny claim arising out of the combatant activities of the military or naval forces, or the Coast Guard, during time of war” (emphasis added)).

Nevertheless, in Feres, the Court held that “the Government is not liable under the [FTCA] for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service.” 340 U. S., at 146.  There is no support for this conclusion in the text of the statute, and it has the unfortunate consequence of depriving servicemen of any remedy when they are injured by the negligence of the Government or its employees.

And Justice Scalia, joined by Justices Brennan, Marshall and Stevens, dissenting in Johnson v. United States (1987):

[T]he Feres rule is now sustained only by three disembodied estimations of what Congress must (despite what it enacted) have intended. They are bad estimations at that.


Had Lieutenant Commander Johnson been piloting a commercial helicopter when he crashed into the side of a mountain, his widow and children could have sued and recovered for their loss. But because Johnson devoted his life to serving in his country's Armed Forces, the Court today limits his family to a fraction of the recovery they might otherwise have received. If our imposition of that sacrifice bore the legitimacy of having been prescribed by the people's elected representatives, it would (insofar as we are permitted to inquire into such things) be just. But it has not been, and it is not. I respectfully dissent.

Agreed on all counts.  But note that Feres is fundamentally a nonorignalist opinion.  It purports to find what the enacting Congress intended, but it does so not on the basis of text or historical evidence; rather it speculates about what Congress intended based upon the Court's assessment of what the best contemporary policy would be.  And somehow people keep supposing that turning the Court loose to decide cases on such grounds will more often lead to just results.


Hyatt I, II, and III
Andrew Hyman

On May 16, my co-blogger Michael Ramsey blogged here about the California v. Hyatt (Hyatt III) case involving a state’s sovereign immunity in the courts of other states, and did so again on May 22.  I agree with much of what Mike writes, for example that Hyatt III is very different from other SCOTUS precedents regarding sovereign immunity, which only restrict the federal government without restricting the states. But still (as he says) I am more sympathetic to Hyatt III than he is.
It’s the result rather than the rationale that I sympathize with in Hyatt III.  It seems absurd to read the Constitution as allowing citizens of one state to sue another state as long as the suit is not brought in a neutral federal forum.   Mike replies that, during the founding era, “States may well have thought that judgments from the new federal courts were more of a threat than judgments from the courts of other states (which would be less likely -- being subject to retaliation -- and much harder to enforce).”  Maybe, but I have another argument too.
The Full Faith and Credit Clause at Article IV, Section 1 says that, “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.”  Suppose State A decides that, as a general rule, it shall have sovereign immunity to the maximum extent possible in all future lawsuits.  State B should then be obliged to give full faith and credit to that prior enactment of State A.  And that’s basically the same result as in Hyatt III via a different rationale. Unfortunately, SCOTUS rejected this full-faith-and-credit-argument in  Hyatt I (2003): “We granted certiorari to resolve whether the Nevada Supreme Court's refusal to extend full faith and credit to California's statute immunizing its tax collection agency from suit violates Article IV; § 1, of the Constitution. We conclude it does not....”  I think Hyatt I was wrongly decided.
So what happened between Hyatt I and Hyatt III? Hyatt II (2016) of course.  In that case, the Court attempted to split the baby by giving California some immunity in Nevada courts under the Full Faith and Credit Clause, but less immunity than the Court would give in Hyatt III, though more immunity than the Court had given in Hyatt I (Chief Justice Roberts summarized Hyatt II in his dissent: “To comply with the Full Faith and Credit Clause, the Nevada Supreme Court need only afford the Board the same limited immunity that Nevada agencies enjoy”).
The Full Faith and Credit Clause may be more difficult to apply to states’ statutory law than to states’ court judgments, but in situations where the state law is a straightforward claim of traditional sovereign immunity then what’s the difficulty?


Ilan Wurman on Hyatt and Sovereign Immunity
Michael Ramsey

At Law & Liberty, Ilan Wurman (Arizona State): Originalism and Sovereign Immunity.  From the core of the argument:

... I agree that the Court has indeed messed up sovereign immunity doctrine. But, as I explain in my book, A Debt Against the Living: An Introduction to Originalism, the results in most of these cases are consistent with both textualism and originalism (to the extent those are different methods).

The mistake that both the Supreme Court and the opponents of its sovereign immunity cases make is to presume that the answer to this specific question must be found in the Constitution. This gets the Constitution backward. The Constitution was not adopted on a tabula rasa, but rather atop many layers of preexisting law. Sovereign immunity—the immunity of the state from a suit for money damages in court without its consent—was part of that law. As Caleb Nelson has written, sovereign immunity was part of the common law of personal jurisdiction: a court simply could not exercise power over the body of the King or the state because there was no way to force them into court or to pay money from the treasury. James Iredell in 1793 explained that this sovereign immunity was part of the law of every state of the Union prior to the adoption of the Constitution. Therefore, if nothing in the Constitution itself abrogates that immunity or gives Congress the power to abrogate it, then the states’ immunity remains intact.

On the key cases involving Congress' abrogation of sovereign immunity:

The question thus boils down to whether abrogating sovereign immunity is a sufficiently “small” power such that Congress can do it [via the necessary and proper clause] to effectuate its other enumerated powers, or whether it is a “great substantive and independent power” that must be expressly enumerated. I am not sure the answer must be that it is the latter, but certainly the way the Founding generation viewed sovereign immunity (see their reaction to Chisolm) suggests the power to abrogate it was indeed thought to be a great and substantive power that could not be left to implication. If that’s right, then Seminole Tribe and Alden v. Maine are easy cases.

Finally, on Hyatt:

This brings us finally to Hyatt, which did not involve Article III, the Eleventh Amendment, or Congress’s enumerated powers. The Supreme Court nevertheless held that the Constitution grants the states immunity even in suits in the state courts of other states. This is a mistake. Again, the Constitution does not grantsovereign immunity to anybody. Sovereign immunity was already out there—a constitutional backdrop, as William Baude has explained—that the Constitution left in place. How, then, are we to analyze a suit against one state in the courts of another?

As Professors William Baude and Stephen Sachs explained in a friend of the court brief, the answer is likely that the Constitution leaves this entirely to the states. The state in which the suit is proceeding may by comity afford immunity to a sister state; but if it doesn’t, then the defendant-state may nevertheless refuse to enforce the judgment. This would effectively lead to the result in Hyatt in the sense that a state could ultimately maintain its immunity, but it would be up for the states themselves to work that out. This approach may not answer all the relevant questions, but it is plausible and workable.

The full post is an outstanding concise explanation of why the Court's sovereign immunity cases (apart from Hyatt) are defensible as a matter of originalism and textualism, but that Hyatt isn't.  It's exactly what I think (but he says it much better).


Seth Barrett Tillman on George Washington and Foreign Emoluments
Michael Ramsey

At the New Reform Club, Seth Barrett Tillman: General George Washington and the Bank of England.  From the introduction (footnotes omitted):

There is substantial evidence to support the inference that Washington, for one, did not view “private business pursuits . . . with foreign state-chartered trading companies” as emoluments. During the Revolutionary War, George Washington owned stock in, and received dividends from, the Bank of England. This foreign corporation received its charter by operation of an act of the English Parliament: the Tonnage Act of 1694. The Bank of England, which was analogous to the first Bank of the United States, served as the private banker for the British Exchequer. More importantly, the Bank of England was analogous to the foreign government “instrumentalit[ies]” that Plaintiffs [in the emoluments litigation] allege Trump-affiliated commercial entities are doing business with.

At the relevant times, the Articles of Confederation governed our young republic. That charter included a Foreign Emoluments Clause, which provided “[N]or shall any person holding any office of profit or trust under the United States, or any of them [i.e., any State], accept of any present, emolument, office or title of any kind whatever from any King, Prince or foreign State . . . .” Furthermore, the Continental Congress had chosen Washington as the commander-in-chief of the nation’s armed forces. As an appointed military officer, he held an “office . . . under the United States,” and could not “accept of any . . . emolument” from a “foreign State.”

This is an excerpt from the amicus curiae Brief of Scholar Seth Barrett Tillman and Judicial Education Project Support of the Defendant’s Supplemental Brief in Blumenthal v. Trump (Civ. A. No. 1:17-cv-01154-EGS) (D.D.C.), available in full here.


Michael Pardo: Confrontation After Scalia and Kennedy
Michael Ramsey

Michael S. Pardo (University of Alabama School of Law) has posted Confrontation After Scalia and Kennedy (Alabama Law Review, Vol. 70, 2019) (29 pages) on SSRN.  Here is the abstract:

This symposium essay discusses the recent history and current state of the Confrontation Clause and then explores its possible futures. Justice Scalia’s 2004 opinion in Crawford v. Washington transformed confrontation doctrine and consequently rendered many types of hearsay statements potentially inadmissible in criminal cases. Although Crawford strengthened the right to confrontation in several respects, the subsequent decade produced significant backlash and disagreements—including dissenting opinions from Justice Kennedy—as the Court attempted to implement and develop confrontation doctrine. The fault lines that emerged among the Justices have left the current state of confrontation doctrine in disarray, particularly in cases involving expert witnesses. The replacement of Justices Scalia and Kennedy (Crawford’s champion and one of the principal dissenters in subsequent cases, respectively) with Justices Gorsuch and Kavanaugh has added to the uncertainty surrounding the doctrine’s future. This essay examines the possible pathways by which the doctrine on the Confrontation Clause may develop, distinguishing between cases involving experts and non-expert witnesses.


Scott Gerber on Chisholm v. Georgia
Michael Ramsey

At Law & Liberty, Scott Gerber: In Defense of the Supreme Court’s First Constitutional Law Decision.  From the introduction:

Last Monday, the U.S. Supreme Court held in Franchise Tax Board of California v. Hyatt, in a 5 to 4 opinion by Justice Clarence Thomas, that a state can maintain its sovereign immunity from lawsuits in other states, reversing a prior decision the Court issued in 1979 in Nevada v. Hall. ...

Importantly, [Hall] was not the only precedent on the subject. In fact, the Court’s first full-scale constitutional law decision, Chisholm v. Georgia, decided in 1793, was also in the way. At issue in Chisholm was whether a citizen of one state, South Carolina, could bring suit in federal court against another state, Georgia. The subject matter of the suit was a sizable debt that the state of Georgia had incurred in purchasing military supplies from Chisholm’s testator during the American Revolution.

As the post goes on to explain, in the Court's seriatum opinions Justice Wilson and Chief Justice Jay embarked on wide-ranging opinions that distract from the textual force of the argument against sovereign immunity.  However:

The opinions of John Blair and William Cushing in the Chisholm case have been called, among other things, “unimaginative.” It is more accurate to say they stayed on point. Blair began his opinion with a subtle expression of disapproval of the rambling opinions of Iredell [in dissent], Wilson, and Jay: Blair said he would pass over the “various European confederations. . . . The Constitution of the United States is the only fountain from which I shall draw.” Blair was true to his word. In fact, he needed but three pages to decide the case, and his decision was based on a plain reading of the words of the Constitution.

William Cushing’s opinion was similar to Blair’s in both tone and method. He, too, began by saying, “the point turns not upon the law or practice of England, . . . nor upon the law of any other country whatever” and he, too, emphasized the words of the Constitution. Put simply, Cushing’s opinion is a straightforward example of textual analysis. To Cushing, the clause in question, “between a state and citizens of another state,” needed to be read in conjunction with the clause that immediately preceded it, “to controversies between two or more states”—a clause that plainly envisioned the state as a defendant. If any exception was intended in the suability of a state, Cushing insisted, it would have been written into the Constitution. Cushing drove this point home by explaining that another clause in the relevant section subjected foreign states to suit in federal court by American citizens. Thus, the “sovereignty” argument was of no avail, Cushing concluded, unless one accepted the improbable argument that the clause meant “we may touch foreign sovereigns but not our own.”

The modern Court's doctrines of state sovereign immunity depend on the proposition that Chisholm was wrongly.  But perhaps that is not so obvious.

(Thanks to Mark Pulliam for the pointer).

RELATED:  Michael Dorf has this post at Justia criticizing the Hyatt decision:  Supreme Court’s Conservative Majority Issues Another Atextual Ruling in a Sovereign Immunity Case.  As discussed here, I basically agree with his bottom line.  But I think he obscures how much more problematic Hyatt is by lumping it in with the rest of the Court's state sovereign immunity decisions.

Professor Dorf says the others decisions are also atextual, but that's not entirely right.  Properly understood, the rule that states are immune in federal court comes from the vesting of the "judicial Power" of federal courts in Article III.  The theory is that historically "judicial power" did not include the power to hear suits against sovereigns, and so that meaning should be giving to it in Article III.  True, one has to go outside the text to find this rule, but it reflects the use of a background assumption to interpret text, which is not at all contrary to conventional originalism.  (This may be an incorrect interpretation of Article III, as Professor Gerber argues in the post linked above.  But that doesn't mean it's atextual; it just means it's wrong).

It's also true (as Professor Dorf says) that interpreting Article III does not get the result in Alden v. Maine, holding that state courts are immune from suit in their own courts.  But it's important to state the holding of Alden precisely (which Professor Dorf does not): it is that Congress cannot make states subject to suit in their own courts.  This conclusion is (or should be) based on the necessary and proper clause.  It's not necessary and proper to any of Congress' powers to impose such liability on the states (in particular, it isn't "proper" given the federal structure).  Unfortunately Justice Kennedy, writing for the majority, did not put it this way in Alden, but it is a reasonable textual foundation for the result in Alden.  (As with the other immunity decisions, I'm only saying here that there is a textual foundation for Alden, not that it is correct).

In contrast, so far as I can tell, there is no plausible textual foundation for Hyatt at all.  It is not an interpretation of any constitutional text.