« May 2019 | Main | July 2019 »

34 posts from June 2019

06/30/2019

Branton Nestor: The Original Meaning and Significance of Early State Provisos to the Free Exercise of Religion
Michael Ramsey

Recently published, in the Harvard Journal of Law and Public Policy, Branton J. Nestor: The Original Meaning and Significance of Early State Provisos to the Free Exercise of Religion (42 Harv. J. L. & P. Pol'y 971 (2019)).  Here is the introduction (footnotes omitted): 

The Supreme Court held in Employment Division v. Smith that the Free Exercise Clause does not generally protect religiously motivated conduct from neutral laws of general applicability.  But the Supreme Court has never determined whether this holding reflects the original meaning of the Free Exercise Clause. Justice Scalia’s City of Boerne concurrence provides the strongest argument issued by any member of the Court defending Smith on historical grounds.  He defends Smith’s historical foundation by relying in part upon the provisos to the free exercise guarantees found in the early state constitutions. These provisos withheld protection from, inter alia, conduct that violated the “public peace” or “safety” of the state. Justice Scalia’s argument supporting Smith on the basis of these state provisos is twofold. First, he argues that these provisos generally withheld protection from conduct that violated any neutral, generally applicable law that a legislature might enact. That is because any violation of law would necessarily be understood to constitute a violation of the “peace” or “safety” of the state. Second, he concludes that this limited understanding of the free exercise of religion was the one that the federal Free Exercise Clause adopted. In short, Justice Scalia concludes the state free exercise provisos suggest that Smith’s rule is on firm historical footing.

This Note offers a different conclusion. It focuses on the provisos to the state free exercise guarantees to advance a twostep argument against Justice Scalia’s historical argument for Smith. First, the state free exercise provisos did not withhold protection from all religiously motivated conduct that violated any neutral, generally applicable law that a legislature might enact. Instead, these state provisos represented specifically enumerated, compelling state interests that were narrow exceptions to an otherwise broad free exercise right. And second, the Free Exercise Clause—which lacks any express proviso—should be read to protect religious exercise at least as broadly as the proviso-laden state constitutions. ... 

This will be a very important discussion if there is interest on the Court in revisiting Justice Scalia's opinion in Employment Division v. Smith (as I think there may be).

NOT RELATED (but in the same issue): James C. Phillips, Benjamin Lee & Jacob Crump, Corpus Linguistics and “Officers of the United States” (42 Harv. J. L. & P. Pol'y 871 (2019)), previously noted here.)

06/29/2019

Ilya Somin on Precedent
Michael Ramsey

At Volokh Conspiracy, Ilya Somin: The Rights and Wrongs of Overruling Precedent.  The core conclusion:

The justices' highest legal obligation is not to the Court's past precedents, but the Constitution. If they are convinced that the latter conflicts with the former, they should overrule, if at all possible. There is a good case for adhering to precedent in situations where the court is uncertain whether it is correct or not. In such situations, it might be reasonable to defer to the seeming accumulated wisdom of earlier judges, especially if there was a broad cross-ideological consensus among them. As noted above, I think it is also justifiable to maintain wrong precedent in some instances where massive reliance interests would be upset otherwise.

With some interesting points about precedent, originalism, and living constitutionalism:

Ironically, living constitutionalists (the school of thought to which most liberal judges adhere) probably have more reason to oppose strong rules of stare decisis than originalists do. One of the tenets of most versions of living constitutionalism is that we need to update constitutional doctrines to take account of new knowledge acquired over time. If so, today's judges are more likely to get issues right than those of earlier eras (other things equal); not because current judges are necessarily smarter or more virtuous than their predecessors,  but because they have the benefit of greater knowledge acquired through a longer period of historical experience.

Originalism's connection to precedent is more ambivalent, and originalists in fact disagree among themselves about how much deference to give it. Judges from some earlier eras might sometimes have greater insight into original meaning than today's jurists do, at least in the case of those who personally lived through the period when the relevant constitutional provisions were drafted and ratified. On the other hand, later judges often have access to superior methods for determining original meaning, as there have been numerous methodological improvements in originalist legal theory in recent years. Moreover, the potentially superior insight of earlier judges is only relevant—from an originalist point of view—when those judges' decisions actually tried to apply originalism. In many cases, their decisions were based on other methodologies.

Furthermore, while originalists are committed to a fixed textual meaning, they also recognize that doctrine can change over time when a fixed meaning is applied to new facts, or to a better understanding of old ones. That too can justify overturning precedent.

Overall, I think those originalists who give constitutional precedent only modest weight have the better of the debate, in my view. And living constitutionalists have even more reason to be skeptical of strong forms of stare decisis.

06/28/2019

Political Gerrymandering and Political Questions
Michael Ramsey

Regular readers know I fundamentally distrust the political question doctrine.  So it will not surprise anyone that I have doubts about the Supreme Court's political gerrymandering cases (Rucho v. Common Cause and Lamone v. Benisek, decided yesterday).  But I'll express some doubts anyway.

The Court, per Chief Justice Roberts, held that the constitutionality of political gerrymandering is a "political question" not suitable for judicial resolution, principally because it lacks judicially manageable standards.  Once one grants that at least some consideration of political consequences is acceptable in redistricting decisions, how is one to say when it becomes too much consideration, and hence unconstitutional?

I'm entirely unpersuaded.  Courts routinely draw difficult lines between borderline-acceptable behavior and borderline-unacceptable behavior.  True, this is often messy.  Justice Scalia, for example, famously wanted bright lines and hated balancing tests.  But if the lack of a bright line makes a claim nonjusticiable, federal courts are going to have a great reduction in work load.

To take a couple of examples favored by center-right originalists, it's not so easy to say when a law is sufficiently necessary and proper to the regulation of interstate commerce that it falls within Congress' enumerated powers.  Few people doubt that some federal regulation of local matters is justified due to their connection to interstate commerce, but how much connection is enough?  This question isn't considered a political question, nor should it be.  And to take a very recent case, any re-invigoration of the nondelegation doctrine, as suggested by Gundy v. United States, involves deciding how much policymaking delegation by Congress is too much (it being undoubtedly true that some policymaking delegation is inevitable).  It's true that Justice Scalia thought this was sufficient reason to hold nondelegation claims basically nonjusticiable, but the current Court (including Chief Justice Roberts) seems prepared to reconsider.  In neither of these situations (nor in many others I can think of) does the Constitution say exactly where the line should be drawn.  But, generally speaking, courts still decide these cases, perhaps with a good bit of deference to the government in the gray areas.  As I think a famous Justice said, the existence of twilight does not mean we cannot distinguish day and night. 

The Court in Rucho does better in noting two points: (1) that founding-era Americans knew about partisan gerrymandering; and (2) that they nonetheless generally gave state legislatures power over districting, subject to oversight by Congress, but not subject to any other express limitations.  One might say that this builds a case for application of the other prong of the political question doctrine -- that a constitutional judgment is textually committed to another branch.  But I doubt that approach as well.  The fact that Congress has oversight does not mean the courts do not also have oversight.

Instead, I think the Court's points about the text and history show something different: the Constitution does not limit partisan districting.  At minimum, I would say that the originalist case for a constitutional limit on partisan districting is not proved.  That does not mean partisan districting isn't bad.  It well be, as Erwin Chemerinsky argues here in commenting on the Rucho case (and quoting Justice Scalia) that it is "incompatibl[e] ... democratic principles."  But the Constitution does not enact "democratic principles" in the abstract.  And it does not have a provision governing districting, although it could have.  Put this way, districting is a political question, but not because of some arcane doctrine of justiciability.  It is a political question because the Constitution did not address it, and thereby left it (like many other issues) to the political branches.

06/27/2019

Aaron Gordon: Justice Thomas and Indian Law
Michael Ramsey

Aaron Gordon (Yale University, Law School, Students) has posted Justice Thomas and Indian Law (58 pages) on SSRN.  Here is the abstract:

Supreme Court Justice Clarence Thomas is an exceptional jurist in a variety of ways. With the exception of his late colleague Antonin Scalia, perhaps no other figure is more associated with originalism than Justice Thomas. Today, Thomas is the Court’s most senior justice, its only African-American member, as well as its only southerner. He writes more opinions per term than any other justice, often presenting provocative critiques of existing law and suggesting reconsideration of long-settled precedent. Justice Thomas’s jurisprudence in the area of Indian Law has been no less bold. He has repeatedly expressed doubts about the constitutional validity of the plenary-power doctrine, the rule of law holding that Congress has plenary legislative authority over in all matters related to the Indian tribes. Justice Thomas also vigorously takes the position that Indian tribal sovereign immunity from private or state lawsuits is baseless and deserves no federal judicial recognition. By contrast, Thomas has long been a steadfast believer in state sovereign immunity, firmly supporting the extension of this principle beyond the literal language of the Constitution, and even joining opinions in two landmark state-sovereign-immunity cases that invoked the doctrine as basis for prohibiting an Indian tribe from suing a state. In addition, Justice Thomas has indicated strong support for the Court’s jurisprudence holding that Indian tribes, as a result of their dependent status, have been implicitly divested of some of their sovereign power over nonmembers of the tribe.

Here, I intend to evaluate Justice Thomas’s jurisprudence in the area of Indian law. Like Justice Thomas, I adhere to the originalist method of interpretation. I aim to offer the most comprehensive possible overview of relevant historical evidence — including some sources that, so far as I am aware, have been overlooked in prior scholarship. First, when it comes to the plenary power doctrine, I agree with Thomas that this rule of law is at odds with constitutional original meaning, although I think that Thomas has argued for what seems to be an overcorrection in the direction of constraining federal power over tribes. Next, I argue that Justice Thomas is mistaken in his belief that tribal immunity lacks legal or historical foundation, though I agree with him that tribal immunity at least has a narrow “immovable-property” exception. In addition, I argue that Thomas has extended the principle of implicit divestiture of tribal sovereign power beyond what is warranted under an originalist reading of the Constitution. I then call attention to an arguably underexplored justification for narrowing state sovereign immunity to allow suits against states by Indian tribes, a theory that may call into question Justice Thomas’s past votes to disallow such suits. Finally, I conclude by briefly discussing some public-policy implications of my arguments; as well as by arguing for retention of tribal sovereign immunity, and abandonment of the plenary-power and implicit-divestiture doctrines, principles I think are more rooted in the racist and assimilationist ideology of Manifest Destiny than they are in our constitutional framework.

(Aaron Gordon is also the author of the recently posted and very timely article Nondelegation).

06/26/2019

Will Baude on the PROMESA Case
Michael Ramsey

At Volokh Conspiracy, Will Baude discusses the PROMESA case (Financial Oversight and Management Board for Puerto Rico v. Aurelius Investment, LLC), in which the Supreme Court recently granted certiorari.  From the introduction:

Last February I noted that the First Circuit had invalidated the appointments to the Financial Oversight Management Board created by a statute called PROMESA to oversee the Puerto Rico bankruptcy. ...

The basic problem is that under the statute, most of the board members are appointed by the President from a series of lists given to him by the Speaker of the House, the Senate Majority Leader, and the House and Senate Minority Leaders. Article II, Section 2 of the Constitution, by contrast, says that "officers of the United States" must be appointed by the President with the advice and consent of the Senate, or if they are "inferior officers," they can be vested in the President alone. The statute doesn't do either one.

Former students from my Constitutional Law course may recognize one of the issues in the appointments/removals question on a recent final exam.

But this case has an additional wrinkle, as Professor Baude explains, due to the setting in Puerto Rico:

First, territorial officers are not governed by the Appointments Clause I quoted above. That Clause applies only to offices "of the United States," while the officers (such as judges) of a territory or the Commonwealth of Puerto Rico exercise a different kind of power. They are officers "of the Commonwealth of Puerto Rico," or a particular territory and can exercise the executive/legislative/judicial power of that territory rather than of the United States. (I talk about this at pp. 10-20 of my draft on Adjudication Outside Article III.)

Second, I am simply unsure whether PROMESA board members are territorial officers. This turns, I think, on the scope of Congress's power over territories and the proper legislative jurisdiction of territorial officers, which I just don't know enough about. But I am pretty confident that this is the right question to determine whether the Appointments Clause applies.

Third, but even if PROMESA board members are territorial officers, not governed by the Appointments Clause, their appointment might still be unconstitutional. In particular, the involvement of individual members of Congress as a formal part of the appointments process raises a serious constitutional question.

(Plus more at the link).

06/25/2019

The Gundy Project
Michael Ramsey

In the Wall Street Journal, David Rivkin and Lee Casey celebrate the possible revival of the nondelegation doctrine in Gundyv. United States:  Alito Teases a Judicial Revolution-- His concurrence suggests the dissenters will soon prevail in restoring the ‘nondelegation’ doctrine.

Justice Alito joined his four liberal colleagues in rejecting Mr. Gundy’s appeal but said he was prepared to switch sides: “If a majority of this Court were willing to reconsider the approach we have taken for the past 84 years, I would support that effort.” A dissent from Justice Neil Gorsuch, meanwhile, set forth the case for nondelegation.

...

Justices Gorsuch’s and Alito’s opinions, together with Justice Kavanaugh’s strong separation-of-powers jurisprudence as an appellate judge, suggest that a majority of justices are prepared to reimpose proper constitutional restraints on congressional delegations. All they need is a suitable case.

But at Prawfsblawg, Rick Hills  (echoing earlier thoughts by Adrian Vermeule and Gerard Magliocca) is skeptical: Gundy, Constitutional Coalitions, and the Credible Commitment Problem of Constitutional Doctrine.

There is a high probability that the SCOTUS will, some time in the near future, strike down some statute as a way of sending the message that the Non-Delegation Doctrine remains a part of the judicially enforced Constitution — but that opinion will later be quietly nullified by lower courts just as Lopez itself was quietly nullified prior to Raich — with the SCOTUS’s tacit blessing of repeated cert denials. As [Gerard Magliocca] notes, the problem is that “it's simply too hard for the Court to create a sensible distinction between valid and invalid delegations.

...

The problem with unintelligible doctrines like the “intelligible principle” doctrine is coalitional instability. As I suggested in a different context back in 2015, “neither side will rationally stick with a principle that it suspects its rivals will ditch when the ideological value sign of the case changes.” Aided by a swing vote in the center, liberals plus the swing vote will invoke the mushy doctrine against conservative statutes; conservatives (plus the swing) will invoke it against liberal ones, and the doctrine itself will become little more than a marker for the essentially legislative discretion of the SCOTUS. 

Professor Hills elaborates the argument in a followup post:  Institutional Flip-Flops and Mushy Doctrine: Why Gorsuch’s Non-Delegation Revolution Won’t Happen (noting the absence of a "hard-edged, crisp, defection-proof doctrine" of nondelegation).

I agree this is a problem, and the vast academic writing about the nondelegation doctrine doesn't much help (and in fact may exacerbate it).  What's needed is indeed a clear rule that limits delegations in accordance with the founding design that Justice Gorsuch sketches in his dissent.  Justice Scalia thought it couldn't be done -- hence his majority opinion in Whitman v. American Trucking Association largely declaring the nondelegation doctrine non-justiciable.  It seems like a worthy academic challenge.  I even have a title: "An Originalist Rule for Delegations." I hope someone (other than me) will undertake the project.

Julian Davis Mortenson: The Executive Power Clause
Michael Ramsey

Julian Davis Mortenson (University of Michigan Law School) has posted The Executive Power Clause (University of Pennsylvania Law Review, Vol. 119) (93 pages) on SSRN.  Here is the abstract:

Article II of the Constitution vests “the executive power” in the President. Advocates of presidential power have long claimed that this phrase was originally understood as a term of art for the full suite of powers held by a typical eighteenth-century monarch. In its strongest form, this view yields a powerful presumption of indefeasible presidential authority in the arenas of foreign affairs and national security.

This so-called Vesting Clause Thesis is conventional wisdom among constitutional originalists. But it is also demonstrably wrong. Based on a comprehensive review of Founding-era archives — including not just records of drafting, legislative, and ratification debates, but also committee files, private and official correspondence, diaries, newspapers, pamphlets, and other publications—this article not only refutes the Vesting Clause Thesis as a statement of the original understanding, but replaces it with a comprehensive affirmative account of the clause that is both historically and theoretically coherent.

The Founding generation understood “executive power” to mean something both simple and specific: the power to execute law. This authority was constitutionally crucial, but it extended only to the implementation of pre-existing legal norms and directives that had been created pursuant to some other authority. It wasn’t just that the use of executive power was subject to legislative influence in a crude political sense; rather, the power was conceptually an empty vessel until there were laws or instructions that needed executing.

06/24/2019

Why the Full Faith and Credit Clause Supports the Supreme Court's Decision in Hyatt
Andrew Hyman

In the recent case of California v. Hyatt, the U.S. Supreme Court said that one state must respect the sovereign immunity of another.  That decision has been criticized for not relying upon any particular text of the Constitution.  I commented on May 26 at this blog that the decision in Hyatt could have and probably should have been supported by the Full Faith and Credit Clause (FFC Clause).  Now I’d like to elaborate about the FFC Clause which is at Article IV, Section I:

Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.

The second sentence is not directly pertinent here, because Congress has not made any laws substantively addressing interstate sovereign immunity in a context like the Hyatt case.  The main federal statute about full faith and credit is 28 USC 1738 which deals with establishing credence of acts, records and judicial proceedings in sister states (“credence” is basically synonymous with “credit”), without saying whether the sister states must ever be faithful to those acts, records and judicial proceedings (the word “faith” often suggests loyalty, allegiance, or fidelity).  That’s why I’ve put in bold the first sentence above, which is self-executing.  The FFC Clause derived from the following clause in the Articles of Confederation:  

Full faith and credit shall be given in each of these States to the records, acts, and judicial proceedings of the courts and magistrates of every other State.

This older clause did not clearly cover acts of state legislation like the FFC Clause does, and so this older clause would not address a state’s legislative declaration of sovereign immunity as in Hyatt.  Likewise, the addition in 1787 of a second sentence to the FFC Clause empowered Congress, which suggests that the framers were not entirely satisfied with how states had previously treated the clause just block quoted above.  For these reasons, one should not assume that a settled pre-1787 understanding would control the first sentence of the FFC Clause, and in fact the matter was unsettled during the Confederation period.

Professors Will Baude and Steve Sachs argued in their Hyatt amicus brief that the 1781 case of Nathan v. Virginia shows that the precursor of the FFC Clause in the Articles of Confederation did not guarantee interstate sovereign immunity.  But in that case, it was decided that states had sovereign immunity in the courts of sister states automatically by the law of nations unless waived, so there was no need in that case to address whether the “full faith and credit” language in the Articles of Confederation would have done something similar. 

Another event in 1781 is often overlooked: a committee of the Continental Congress reported that “execution” of that clause in the Articles of Confederation required a congressional declaration of two different things: “[1] the method of exemplifying records and [2] the operation of the Acts and judicial proceedings of the Courts of one State contravening those of the States in which they are asserted….”  Thus, the clause was often understood during the Confederation period as going beyond evidentiary matters, and the second sentence that was later added in 1787 addressed the exact two things that the committee had pointed to in 1781, including not just the method of authentication but also the effect of items authenticated. 

In Federalist 42, Madison called that older clause in the articles of Confederation “extremely indeterminate,” and yet the constitutional convention deemed it sufficiently determinate in 1787 to include in Article IV, at least as a default rule when Congress does not act.  An article by David Engdahl discussed various court cases from the Confederation period suggesting that the duty of “full faith and credit” mainly referred to authenticating actions of sister states, without any substantive duty to respect the stuff that was authenticated, but Engdahl acknowledged that the matter “remained in some dispute” as of 1787.  

Contrary to what several state courts opined before 1787, the words “faith” and “credit” should not be treated as redundant, and the word “credit” would have been sufficient if the only purpose was authentication.  An article by James Sumner (34 OR. L. REV. 224, 226 (1955)) pointed to evidence that this potential “repetition of meaning was apparently recognized by the members of the Constitutional Convention.”  In ordinary speech, the phrase “faith and credit” probably means “loyalty and credence,” and the preceding word “full” probably refers to a particular body of law or custom instead of referring to some maximum hypothetical extent.  After all, it would be ridiculous to force one state to fully obey every statute made by another state.  Sure enough, a pertinent body of law or custom was discussed at the constitutional convention by James Wilson: “what now takes place among all independent nations.”  

It is tempting to suppose that the word “full” in the FFC Clause instead means (per a 1790 statute quoted at length by Engdahl) “such faith and credit…as they have by law or usage in the courts of the state from whence the said records are or shall be taken.”  That supposition is problematic though, because the 1790 statute confined that use of the word “full” to records of judicial proceedings rather than acts of legislatures.  So, that 1790 statute was modifying (rather than elaborating) the default rule provided by the first sentence of the FFC Clause.  Engdahl confirms that this point “caused confusion among lawyers, judges, and even legislators.”

In sum, absent congressional modification of the default rule, states very probably must be faithful to a sister-state’s legislative claim of sovereign immunity.   This was the prevailing rule among the states and among nations in 1787, and is therefore essential for “full” faith and credit.  As Baude and Sachs wrote, “both parties in Nathan understood the case to turn directly on the law of nations."  Indeed, the law of nations was so clear that there was no need to use the proto-FFC clause, which at that time did not cover state-legislative assertions of sovereign immunity anyway.

06/23/2019

Michael Dorf on Originalism in Gamble v. United States
Michael Ramsey

At Dorf on Law, Michael Dorf highlights a small but interesting issue of originalist methodology in the Supreme Court's recent opinion in Gamble v. United States (the double jeopardy case).  He writes: 

Justice Alito [in the majority opinion] notes that the petitioner's argument based on original understanding relies extensively on a single 1677 case involving a fellow named Hutchinson but that there is no surviving report of the case and that much of what we do know about the case suggests that it and subsequent cases cut in favor of the separate-sovereigns principle. He then takes note of an argument made by the petitioner. Justice Alito writes for the Court:

[Petitioner argues that] [w]hatever the English courts actually did prior to adoption of the Fifth Amendment, by that time the early English cases were widely thought to support his view. This is a curious argument indeed. It would have us hold that the Fifth Amendment codified a common-law right that existed in legend, not case law.

But why is this argument curious as a matter of original public meaning? Suppose you are reading a journal of the proceedings of an astronomical society from 1791 and you come across a calculation of the orbit of "the outermost planet in the solar system." You wonder whether the astronomers were discussing Neptune or Pluto, but find yourself puzzled, because the calculations are way off for either one. Then it hits you. In 1791, the most distant known planet was Uranus, which was discovered ten years earlier. Neptune would not be discovered until 1846. The most sensible reading of "outermost planet in the solar system" in this context is Uranus.

That's not a perfect analogy, of course, but it underscores a basic point that a reconstruction of original public meaning properly takes account of what the public thought, not necessarily of what was true.

I partly agree and partly don't.  I agree as to Gamble.  The question is what the enactors of the Fifth Amendment understood the double jeopardy right to be.  It's possible that they understood the Amendment to prohibit double jeopardy as defined in English common law, however it was defined.  But it's more likely that they understood the Amendment to prohibit double jeopardy -- at least as to its major contours -- as they (the enactors) defined it, which in turn was likely their understanding (right or wrong) of English common law.  If there was not common understanding of the double jeopardy right in America at the time of enactment, then I would think the actual rules of English common law should be decisive.  But if it could be established that there was a consensus understanding of double jeopardy in America a the time of enactment, I think that should be close to conclusive as to the Amendment's meaning, and not at all undermined by a showing that Americans misunderstood English law.  (This argument seems particularly significant in the free speech area, where it may well be that the enactors adopted "a common-law right that existed in legend, not case law."

But I don't agree with Professor Dorf's planetary analogy.  Suppose a law is enacted that no one may travel "beyond the outermost planet in the solar system."  At the time of enactment, Planet X is the most distant known planet in the solar system.  Later, a more-distant planet in the solar system, Planet Y, is discovered.  Does the law now prohibit travel beyond Planet X, or beyond Planet Y?  I say, at least presumptively, only beyond Planet Y.  Context indicates that the enactors were not thinking of a specific planet, but rather of the outer bounds of the solar system, wherever that might be.  Indeed, if the law had instead said no one may travel "beyond the outer bounds of the solar system," it seems obvious that that means beyond the outer bounds of the solar system as we understand it from time to time, not the outer bounds of the solar system as known at the time of enactment.  The non-specific reference to the outermost planet has the same character, and should be interpreted the same way.

Nonetheless, I concede this is often a difficult methodological issue for originalism, because it seems clear that sometimes it should go one way and sometimes the other based on context, and there will often be cases in the middle.  Thus I agree that Justice Alito was wrong to dismiss the petitioner's argument out of hand (though it seems likely he was right to conclude that the petitioner had not established a common understanding as of the time of enactment).

06/22/2019

A Small Step Forward in Knick
Michael Ramsey

After criticizing the Supreme Court for allowing several constitutional messes to persist on Thursday, I should congratulate the Justices (or rather 5 of them) for cleaning up a small mess on Friday in Knick v. Township of ScottIlya Somin, who filed an excellent amicus brief, celebrates at Volokh Conspiracy: Supreme Court Overrules Precedent that Created "Catch-22" for Property Owners Attempting to Bring Takings Cases in Federal Court. As he explains the case: 

The main point at issue in Knick was whether the Court should overrule Williamson County Regional Planning Commission v. Hamilton Bank  (1985). Under Williamson County, a property owner who contends that the [state or local] government has taken his property and therefore owes "just compensation" under the Fifth Amendment [ed.: actually, under the Fifth Amendment as incorporated by the Fourteenth], could not file a case in federal court until he or she first secured a "final decision" from the relevant state regulatory agency and "exhausted" all possible remedies in state court. Even then, it was still often impossible to bring a federal claim, because various procedural rules preclude federal courts from reviewing final decisions in cases that were initially brought in state court.

The majority, per Chief Justice Roberts, overruled Williamson County and held for the claimant, Knick.

This not really an originalism issue, because it doesn't turn on the original public meaning of a particular phrase.  It is a textualist issue, because Williamson County wasn't based on anything in the text, but was rather something the Court made up.  Williamson County said that a property owner hasn't suffered a constitutional violation until state remedies are exhausted, but that's not what the text says.  As Justice Roberts explained for the majority:

Contrary to Williamson County, a property owner has a claim for a violation of the Takings Clause as soon as a government takes his property for public use without paying for it. The Clause provides: "[N]or shall private property be taken for public use, without just compensa­tion." It does not say: "Nor shall private property be taken for public use, without an available procedure that will result in compensation." If a local government takes private property without paying for it, that government has violated the Fifth Amendment [ed.: actually, the Fifth Amendment as incorporated by the Fourteenth; also I'm going to stop making this correction now]—just as the Takings Clause says—without regard to subsequent state court proceedings….

The Fifth Amendment right to full compensation arises at the time of the taking, regardless of post-taking remedies that may be available to the property owner. That principle was confirmed in Jacobs v. United States, 290 U. S. 13 (1933), where we held that a property owner found to have a valid takings claim is entitled to compensation as if it had been "paid contemporaneously with the taking"—that is, the compensation must generally consist of the total value of the property when taken, plus interest from that time.

Or as Justice Thomas wrote in concurrence (quotations and citations omitted):

The Fifth Amendment does not merely provide a damages remedy to a property owner willing to shoulder the burden of securing compensation after the government takes property without paying for it. Instead, it makes just compensation a prerequisite to the government’s authority to take property for public use.  A purported exercise of the eminent-domain power is therefore invalid unless the government pays just compensation before or at the time of its taking. If this requirement makes some regulatory programs unworkable in practice [as the United States argued as amicus] so be it—our role is to enforce the Takings Clause as written.

(It's worth noting that the decision in Knick vindicates Justice Thomas' dissent from denial of certiorari in Arrigoni Enterprises, LLC v. Durham, 136 S.Ct. 1409 (2016), in which he made these arguments and called for overruling Williamson County.  One may assume the Court denied cert. in Arrigoni because there were not five votes to overrule Williamson County at that time.)

Chief Justice Roberts also makes this structural point:

The state-litigation requirement relegates the Takings Clause "to the status of a poor relation" among the provisions of the Bill of Rights. Plaintiffs asserting any other constitutional claim are guaranteed a federal forum under §1983, but the state-litigation requirement "hand[s] authority over federal takings claims to state courts." San Remo, 545 U. S., at 350 (Rehnquist, C. J., concurring in judgment). Fidelity to the Takings Clause and our cases construing it requires overruling Williamson County and restoring takings claims to the full-fledged constitutional status the Framers envisioned when they included the Clause among the other protections in the Bill of Rights.

Finally, since the standards for overruling precedent has been in the news, I'll add that Williamson County seems to meet Justice Thomas' "demonstrably erroneous" standard.  I think, despite what some commentators have said, that standard could (and perhaps should) be applied in a demanding way.  But even with a demanding standard, Williamson County is pretty hard to defend on textual and structural grounds.  (It got four votes in dissent, though -- mostly on stare decisis grounds, and because I suspect the dissent didn't have much sympathy for the claimant).