« August 2019 | Main | October 2019 »

34 posts from September 2019

09/30/2019

The Challenge of Naming the Modern Originalist Movement
Mike Rappaport

One sign of the success of an academic movement, like originalism, is that it becomes attractive enough to develop multiple theories that promote the movement in different ways. The existence of these different theories has advantages. The various theories provide multiple perspectives and differing defenses of the movement, making it more likely to prevail in the marketplace of ideas by providing them with a broader appeal. But the existence of various theories also presents challenges. First, how should the objective of the movement be defined? In the case of originalism, how can we define originalism in a way that includes all of the different theories?

Second, how can the terms in the theories be made consistent? In the case of originalism, it is useful to have a common vocabulary so that the different theories can debate and communicate with one another and other scholars about their theories. But the different perspectives of the various theories leads them to use terms in conflicting ways.

Unfortunately, meeting these challenges is not so easy. It takes hard work, mutual respect, and compromise among the adherents of different views. But it is extremely important that these challenges be met if the originalist movement is to succeed in its overall objective of establishing an originalist judicial and legal system.

The Meaning of Originalism

Let me start with the first question: What is originalism? How can we define the term so that it includes the major theories? Larry Solum has the leading view here, defining modern originalism as including those who accept two beliefs—what he calls the fixation thesis and the constraint principle. Solum’s view appears to have been accepted by most originalists and there is much to be said for it as a consensus view of originalism.

The fixation thesis is the view that “the linguistic meaning of the constitutional text was fixed at the time each provision was framed and ratified.” In other words, the meaning of the text is the meaning it had when it was enacted—its original meaning. The constraint principle is the view that decision-makers, especially judges, should “at a minimum” be constrained by the original meaning of the constitutional text.

In my view, treating these two principles as the core of modern originalism is both helpful and enlightening. The version of originalism that John McGinnis and I champion (original methods originalism alongside a normative view based on the goodness of the Constitution) certainly satisfies these two principles. Under our view, one discovers the original meaning of the constitutional text by using the methods that people at the time of the Constitution’s enactment would have employed to interpret it. This view certainly complies with the fixation thesis. We believe that the original meaning determined by applying these methods fixes the meaning of the constitutional text. Our view also satisfies the constraint principle. In our view, the only situation where one ought to depart from the original meaning is in following certain non-originalist precedents, especially those that have been widely accepted. We hold that precedent is authorized by the Constitution itself, and those departures from the original meaning are relatively limited. Therefore, our view does not violate the constraint principle’s requirement that the original meaning should constrain decision-makers.

A bigger question, I believe, arises for the version of originalism advanced by Will Baude and Stephen Sachs. Under their theory of original law originalism, we are bound by the law that existed at the time of the enactment of the Constitution unless that law has been lawfully changed. The law that existed at the time of the Constitution’s enactment includes what they call the law of interpretation. This law governs how the Constitution should be interpreted.

Baude and Sachs are clear that the law of interpretation does not necessarily yield interpretations that conform to linguistic meaning. But if that is true, then this theory risks requiring judges to be bound by interpretations that do not conform to the text’s original meaning. And thus the theory might violate either the fixation thesis or the constraint thesis, or both.

For example, consider the absurdity rule, an interpretive rule that applied at the time of the Constitution. Under this rule, an interpretation of the ordinary or legal meaning of a provision that was absurd would not be followed. Consequently, original law originalism would recommend following an interpretation of a provision that the theory did not regard as conforming to the original meaning.

If original law originalism, which is an important modern theory of originalism, does not conform to Solum’s two principles, then the principles may need to be modified. Perhaps modern originalism should be defined as focused on either the original meaning or the original law.

Terms within Originalism

Let me now move to the second issue—the various names that are used for different theories within originalism. One type of originalism is called “the New Originalism.” This term usually refers to a group of theories authored by Randy Barnett, Evan Bernick, Larry Solum, and Keith Whittington, which place an important emphasis on what is called the interpretation and construction distinction. To oversimplify, these theorists believe that for a significant portion of the Constitution, the original meaning of the language can “run out” because the language is vague or ambiguous. As a result, these provisions must be given effect by considering matters other than the original meaning.

But there is a problem with calling this group “the New Originalism.” This theory is not the only new theory these days. Other new theories include Baude and Sach’s original law originalism and McGinnis and Rappaport’s original methods originalism. Reserving the term “New Originalism” for only a portion of the new originalist theories is confusing and inaccurate. McGinnis and I have suggested changing the name of the new originalism to “constructionist originalism” but the new originalists have rejected that. Fair enough—no one should be forced to accept a name they don’t like. But that still leaves us looking for an appropriate name for the new originalism.

Unfortunately, the problems in this area continue. Some of the new originalists have sometimes taken to simply calling their theory original public meaning originalism. I think that is problematic. First, Justice Scalia was an important developer of original public meaning, but he did not accept the interpretation/construction distinction. Second, I regard the best form of McGinnis’ and my own theory of original methods originalism to be a type of original public meaning. Thus, reserving original public meaning for the new originalism again seems to risk confusion.

What can one say about these matters? The basic problem is that these different theories have differing views about their subject and try to select names based on their own perspective. Since the theories disagree, it is not surprising that there is disagreement about the names. But this disagreement has significant costs. The first cost is that it creates confusion, especially for those that are not well versed in the theories. Since that is most people, this is a serious problem. Second, these disagreements create friction among the different theorists, since they each view the other’s names as inappropriate or aggressive.

I am not sure that there is a single solution to this matter. But one essential component is that the different theorists should look at these matters not just from their own perspective, but also from an ecumenical perspective. In choosing names, we should be sensitive to the overall situation and how matters can be understood by people who are not very familiar with the theories. We should remember that, while we are competing over our theories, we should also be cooperating in promoting originalism in a wider sense. It is to that wider goal of establishing originalism in general as the dominant constitutional interpretive theory that originalist theorists should pledge allegiance.

One good example of this ecumenical approach is the use of the term “original meaning” in the scholarly literature. While there is disagreement between theories that advocate original public meaning and those that advocate original intent, original meaning has been used as a term to cover both theories. This helps to unify the field: despite their differences, both theories advocate the same end point. In this way, differing theories seem to be pursuing the same objective and are using a term to have the same meaning.

Roderick Hills: Strategic Ambiguity and Article VII’s Two-Stage Ratification Process
Michael Ramsey

Roderick M. Hills, Jr. (New York University School of Law) has posted Strategic Ambiguity and Article VII’s Two-Stage Ratification Process: Why the Framers (Should Have) Decided Not to Decide (74 pages) on SSRN.  Here is the abstract:

The U.S. Constitution ratified in 1788 contains a lot of apparently ambiguous language — abstract phrases like “executive power,” “judicial power,” and “necessary and proper” — the meaning of which seemed to be reasonable debatable. The array of approaches to constitutional interpretation dubbed “originalist” all share the ambition of eliminating these apparent ambiguities by careful exhumation of facts about linguistic usage and constitutional purposes in existence when the Constitution was ratified. This article argues that Article VII’s two-stage ratification process is one such original fact suggesting that apparently ambiguous language ought to be construed as deliberately ambiguous. That process gave the drafters at the Philadelphia convention (the first stage) incentives to choose deliberately ambiguous language as a strategy to mollify critics of the Constitution in the state ratifying conventions (the second stage). The drafters at Philadelphia were overwhelming drawn from “Federalists” — politicians who favored a strong national government. Because critics of centralization (dubbed “Anti-Federalists” by their Federalist opponents) were simply not present in significant numbers at the drafting stage, the Federalists could not use clarifying amendments to determine precisely what their opponents would tolerate in the ratifying conventions. Because Article VII did not permit the state ratifying conventions to approve clarifying amendments, the ratification process created a risk that, offended by specific language in an unamendable proposal, Anti-Federalist ratifiers would reject the entire proposal and doom the project of a stronger central government that everyone desired. By proposing and approving deliberately ambiguous language, Federalist drafters and Anti-Federalist ratifiers could sidestep their most intractable disagreements, making deliberate ambiguity a rational strategy for facilitating ratification. Moreover, this rational strategy is also normatively attractive. The critics of the Constitution deeply resented Article VII as a device for “cramming the Constitution down our throats” through its reversion threat. The presumption of strategic ambiguity reduces the power of the Federalist agenda-setters to force through specific constitutional language with a reversion threat that violated contemporary norms of fair dealing, thereby advancing the goal of popular sovereignty with which Federalists defended the Constitution’s legitimacy.

UPDATE:  At Legal Theory Blog, Larry Solum says "Highly recommended. Download it while it's hot!" and adds comments.

 

09/29/2019

Joyce Lee Malcolm: The Right to Carry Your Gun Outside
Michael Ramsey

Joyce Lee Malcolm (George Mason University - Antonin Scalia Law School, Faculty) has posted The Right to Carry Your Gun Outside: A Snapshot History (Law and Contemporary Problems, forthcoming) (26 pages) on SSRN.  Here is the abstract:

The right of self-defense is the core of the Second Amendment right to keep and bear arms as the US Supreme Court has affirmed in two landmark decisions. The right does not, and cannot, stop at the domestic doorstep. Nevertheless there are those arguing that somehow the right “to bear arms” is confined to the home. This essay addresses this latest effort to deny the individual right to keep and bear arms that the Court has affirmed. It focuses on the right to carry a gun outside the home, mindful that the right to keep and bear arms, like other rights, included some practical restrictions. In reviewing the history, the crucial time for an understanding of the meaning of the Second Amendment is the point in the evolution of the Anglo-American right when the amendment was drafted and added to the American Bill of Rights.

09/28/2019

John Bickers: Greenbacks, Consent, and Unwritten Amendments
Michael Ramsey

John M. Bickers (Northern Kentucky University - Salmon P. Chase College of Law) has posted Greenbacks, Consent, and Unwritten Amendments (33 pages) on SSRN.  Here is abstract:

“We the people,” the Constitution begins, setting forth the core republican principle that the American government would henceforward be one based upon the consent of the governed. Yet after that announcement the Constitution set forth written rules of varied levels of specificity that clearly mean to bind future generations of those same people. One set of those rules establishes a complicated set of options for amendment: the authors at the end of the eighteenth century made it quite difficult for anything less than a future double supermajority to change their work.

Yet over the centuries there have been countless changes to the society governed by this formative document. The originalist judicial philosophy would prevent such changes from occurring unless they were at least countenanced by the original public understanding of the Constitution among those who made (that is to say, ratified) the document. Other philosophies argue that the current people have a right to remake the Constitution outside of the formal amendment process, an idea resisted fiercely by the originalists. Some thinkers have speculated about the possibility of discovering, at two centuries of remove, an unusual but consistently held view of the founding generation: would the discovery invalidate experiments the United States had adopted in the interim?

No such speculation truly needs to be engaged, as the preeminent example of this puzzle is offered on sheets of paper found in almost every wallet. Each sample of U.S. paper money contains the confident, all-capital phrase “THIS NOTE IS LEGAL TENDER FOR ALL DEBTS, PUBLIC AND PRIVATE.” The population accepts this assertion. But it has not been ever thus.

Just a century and a half ago, a challenge to the Civil War issuance of paper money as legal tender made its way to the U.S. Supreme Court. There, Chief Justice Salmon P. Chase authored an opinion denouncing this legal innovation that had occurred under the watchful eye of Treasury Secretary Salmon P. Chase. Although some legal scholars have argued that he was wrong, most of the legal world has accepted Chase’s analysis: the Constitution prohibited the adoption of paper money as legal tender by text, by the understanding of those who wrote the text, and by the original meaning ascribed to the text by the portion of the public that ratified it.

Chase’s decision sent shock waves through an American economy that had quickly become reliant on this new device. There is evidence that the search for new Supreme Court justices focused to some degree on finding people who would reject Chase’s originalism in favor of letting We the People decide the issue. When two newly appointed justices joined the Court and reconsidered the matter just a year after the rejection by Chase, they embraced paper money. The embrace of paper money as legal tender remains to this day.

The triumph of that second of the Legal Tender Cases was so complete that Americans today are frequently confident that the use of the phrase “coin money” in the constitutional powers of Congress is meant metaphorically. Chase’s solid demonstration that it was nothing of the kind has faded from the consciousness of all but a few specialists.

What does this unwritten amendment of Congress’s powers mean, then, for the role of consent of the governed? For if the Constitution must be limited to its original public meaning, the United States should immediately revert to an economy suitable for the first years of the Republic, when the decision whether to accept paper in payment of debt was the choice of the individual, and the government could only compel acceptance of coins. Yet that, surely, is not an idea to which more than a bare handful of contemporary Americans would consent.

If “consent of the governed” means consent by those current Americans, they evince it by continue to live in the America of their understanding. They demonstrate such consent to unwritten amendments every time they offer or accept cash believing that the claim made on the face of the bill is true.

The Legal Tender Cases are undoubtedly a challenge for originalism.  I'm not so sure, though, that the Court's ultimate conclusion (that Congress had power to issue paper money) was incorrect.  Article I, Section 10, bars the states from "emit[ting] Bills of Credit; [or] mak[ing] anything but gold and silver Coin a Tender in Payment of Debts."  There's no equivalent textual prohibition on Congress.  Congress has an express power to borrow money -- and, I would think by implication the power to make evidence of that debt freely assignable.  That's essentially a power to create paper money.  So the core question would seem to be just whether Congress can make the paper money legal tender.  Quite arguably that could be found under the necessary and proper power.

09/27/2019

Michael Louis Corrado: Insanity and the Historical Understanding of Mens Rea
Michael Ramsey

Michael Louis Corrado (University of North Carolina School of Law) has posted Kahler v. Kansas: Insanity and the Historical Understanding of Mens Rea (23 pages) on SSRN.  Here is the abstract: 

In October of this year, the United States Supreme Court will hear the case of Kahler v. Kansas, and it will have the opportunity to answer a question that it has been avoiding for some time: Does the United States Constitution — in particular, do the Due Process and the Cruel and Unusual Punishment clauses — require each of the jurisdictions of the United States to provide an affirmative defense of insanity for those accused of a crime? The petitioner, Kahler, argues that the right to an affirmative defense is "deeply rooted" in our history and tradition, and so is embedded in our Constitution. To undermine that argument, the State of Kansas attempts to show that eliminating the affirmative defense and limiting the admissibility of evidence of mental illness to its role in rebutting mens rea is consistent with history and tradition. This paper argues that the State misreads the history of mens rea, and that that misreading leads to an equivocation in the State's argument.

Kahler [SCOTUSBlog summary here, argument 10/7/19) is one of a number of cases of originalist interest in the upcoming Term of the Supreme Court.  I will try to get an origianlist preview posted shortly.

09/26/2019

Eric Segall on Justice Gorsuch on Originalism
Michael Ramsey

At Dorf on Law, Eric Segall: Reviewing Justice Gorsuch's New Book: An Originalist Fantasy out of the Old West (reviewing [very harshly] Justice Gorsuch's book A Republic If You Can Keep It).  From the introduction:

Justice Neil Gorush's new book "A Republic If You Can Keep It," isn't completely awful. Made up mostly of old speeches and essays, portions of his judicial opinions, and some new content, he provides a portrait of himself as that fishin'-lovin', down home, Western cowboy who just happened to graduate from an elite prep school in Bethesda, Maryland, and then Columbia, Harvard, and Oxford. But there are photos in the book of him fishing (with Scalia even), and he talks about how he and his wife raised two daughters "along with chickens, a goat, horses, a rabbit, dogs, cats, mice, and more in our home on the prairie." He "loves the West," but if you want to know much more about his personal life than that, well you will be disappointed. In this book, he has much bigger fish to fry, or cattle to lasso, or, well you get the idea.

Much of the book is about how originalism and textualism are great while living constitutionalism, purposivism, and pragmatism are bad. Throughout the book he discusses and provides excerpts from criminal law cases where he ruled for criminal defendants to show that even originalists and textualists can side with those accused of crimes. In this sense, and many others, he follows in the footsteps of Justice Antonin Scalia, who ruled for criminal defendants slightly more often than some might have thought likely given the rest of Scalia's priors. I believe Gorsuch does care about the rule of law when it comes to denying people their liberty, and this prior is of course consistent with his liberty-and-freedom-loving self-descriptions (if not with originalism).  ...

And from the critical parts: 

Throughout the book, Gorsuch argues that originalism and textualism will keep judges in their place whereas living constitutionalism, purposivism, and pragmatism will allow unelected, life-tenured judges to impose their value judgments on the rest of us. But nowhere in the book does Gorsuch discuss the panoply of  important decisions that so-called originalists and textualists Scalia and Thomas signed on to over the years that invalidated laws without any persuasive basis in originalist or textualist methodology--cases like Shelby County v. HolderCitizens United v. FEC, and Seminole Tribe of Florida v. Florida. That would have been an interesting discussion.

More importantly, Gorsuch himself has voted to strike down important statutes in his short time on the Court without demonstrating or even trying to demonstrate ... that original meaning required those results. In Trinity Lutheran v. Missourithe issue was the constitutionality of a Missouri constitutional amendment prohibiting the giving of public funds to religious institutions. This amendment was originally passed in the late 19th century and over 20 states have similar ones. Neither the narrow plurality opinion, which limited its holding striking down the amendment to the specific facts of the case, nor Gorsuch's much broader concurring opinion, contain a word about the Free Exercise Clause's original meaning either at the time of the founding or in 1868 when the Clause was made applicable to the states through the 14th Amendment ...

09/25/2019

Mila Sohoni: The Lost History of the 'Universal' Injunction
Michael Ramsey

Mila Sohoni (University of San Diego School of Law) has posted The Lost History of the 'Universal' Injunction (133 Harvard Law Review (2020, forthcoming)) (90 pages) on SSRN.  Here is the abstract: 

The issuance of injunctions that reach beyond just the plaintiffs has recently become the subject of a mounting wave of censorious commentary, including by members of Congress, a Supreme Court justice, the Solicitor General, the Attorney General, and the President. Critics of these “universal” injunctions have claimed that such injunctions are a recent invention and that they exceed the power conferred by Article III to decide cases “in … equity.” This Article rebuts the proposition that the universal injunction is a recent invention and that it violates Article III or the traditional limits of equity as practiced by the federal courts. As far back as 1913, the Supreme Court itself enjoined federal officers from enforcing a federal statute not just against the plaintiff, but against anyone, until the Court had decided the case. If the Supreme Court can issue a universal injunction against enforcement of a federal law, then — as an Article III matter — so can a lower federal court. Moreover, lower federal courts have been issuing injunctions that reach beyond the plaintiffs as to state laws in cases that date back more than a century, and the Supreme Court has repeatedly approved of these injunctions. If Article III allows such injunctions as to state laws, it also allows such injunctions as to federal laws. Mapping these and other pieces of the lost history of the universal injunction, this Article demonstrates that the Article III objection to the universal injunction should be retired, and that the unfolding efforts to outright strip the federal courts of the tool of the universal injunction — whether by statutory fiat or by a judicial re-definition of Article III — should halt.

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

More from Samuel Bray at Volokh Conspiracy: Breaking–Professor Mila Sohoni on Article III and the "Universal" Injunction.

09/24/2019

Joel Alicea & John Ohlendorf: Against the Tiers of Constitutional Scrutiny (Updated)
Michael Ramsey

At National Affairs, Joel Alicea & John D. Ohlendorf: Against the Tiers of Constitutional Scrutiny.  Here is the introduction: 

This year, for the first time in nearly a decade, the Supreme Court will return to the subject of the Second Amendment. New York State Rifle & Pistol Association, Inc. (NYSRPA) v. City of New York concerns a New York City licensing regime that, at the time the Court granted review, prohibited the transportation of any firearm outside city limits. ... Although most popular attention will focus on the outcome of the case, the long-term significance of NYSRPA could be how the justices arrive at that outcome, for NYSRPA poses a challenge to what has become a familiar feature of American constitutional law: the tiers of scrutiny.

The tiers of scrutiny are elements of a method of constitutional analysis in which courts examine the goal that a law purports to achieve and the means the law uses to accomplish it. ...

This three-tiered method of analysis has come to dominate the jurisprudence of the First Amendment's Free Speech Clause and the 14th Amendment's Equal Protection Clause. It remains an open question whether it will dominate Second Amendment jurisprudence. ...

That framework ought to be abandoned. The tiers of scrutiny have no basis in the text or original meaning of the Constitution. They emerged as a political solution invented by the justices to navigate internal factions at the Supreme Court, and they do not withstand critical analysis even on their own terms. Not only do they have no place in Second Amendment jurisprudence; they have no place in American constitutional law. The Roberts Court would have few accomplishments of greater significance than the repudiation of the tiers of scrutiny and the reassertion of a method of constitutional analysis based on the text, history, and tradition of the Constitution.

UPDATE:  Nelson Lund (George Mason University -- Antonin Scalia Law School) has posted a related article, taking a different view, on SSRN:  The Proper Role of History and Tradition in Second Amendment Jurisprudence (University of Florida Journal of Law & Public Policy, forthcoming).  Here is the abstract: 

The Supreme Court’s decisions in District of Columbia v. Heller (2008) and McDonald v. City of Chicago (2010) resolved two foundational issues. First, the Second Amendment protects the inherent right of individuals to self-defense, not a right of states to maintain an organized militia. Second, the Amendment applies to state and local governments in the same way that it applies to the federal government. Both cases also held that a general ban on the possession of a handgun in one’s home are unconstitutional. In the ensuing decade, the lower courts have confronted many questions about the scope and application of the Second Amendment that were left unanswered by these decisions.

Shortly after the retirement of Justice Anthony Kennedy, who was probably the median voter in the 5-4 decisions in Heller and McDonald, the Court granted certiorari in New York State Rifle & Pistol Association v. City of New York. This challenge to New York City’s uniquely severe restrictions on transporting firearms in public raises another foundational issue: whether the Second Amendment right to “bear Arms” is protected outside one’s own home. New York has attempted to render this case moot by changing the law to accommodate the plaintiffs’ very specific and modest demands. The plaintiffs maintain that the case is not moot, and the Court has not yet ruled on that issue.

Whether in this case or some other, Justice Brett Kavanaugh will have an opportunity to press an unusual jurisprudential approach that he developed in a dissenting opinion while he was on the D.C. Circuit. He contended that Heller requires courts to apply a history-and-tradition test to every issue that is not resolved by the constitutional text. No circuit court has adopted this position. Many, however, have employed a version of the means-end analysis that the Supreme Court routinely uses in analogous areas of constitutional law, and none has rejected the use of such analysis.

This Article will show that then-Judge Kavanaugh misinterpreted Heller, and it will explain why neither he nor other members of the Supreme Court should adopt the approach that he mistakenly imputed to Heller. Other circuit judges have developed a better framework, in which text, history, and tradition are relied on when, and only when, those sources provide reasonably clear guidance. In other cases, which in practice will be much more numerous, judges should engage in means-end analysis that is informed by what is known about the purpose of the Second Amendment from its text and history.

09/23/2019

A Brief Reply to Michael Ramsey Regarding Korematsu (with Further Update)
Andrew Hyman

Mike Ramsey (who edits this excellent blog) writes: “Congress cannot simply conclude (or authorize the President to conclude) that particular persons or a class of persons pose too great a risk to remain free.”  I do not think that is necessarily always true if there is compelling proof of risk, which there certainly was not in Korematsu.  In denying congressional power, Mike may be alluding to the concept of a “status crime” which occurs when there is no unlawful behavior; the Supreme Court held in 1962 that status crimes violate the Eighth Amendment, with Justice Black writing for the Court in that case of Robinson v. California (perhaps suggesting how he would have ruled in Korematsu if the Court had reached the issue of detention).  Later, in a 1989 case, the Court insisted more generally that we must rely on specific applicable constitutional provisions when they are available, “not the more generalized notion of substantive due process.”  

Maybe I misread Mike, and maybe he did not mean to rely on substantive due process (which was not explicitly mentioned in his blog post).  He wrote, “I am taking sides in a larger intra-originalist debate on whether the due process clause restrains only the executive and judiciary, or whether it also constrains the legislature; I take the latter side.”  I take the latter side too, and always have, but of course that does not require support for substantive due process, which was not widely known in 1792 when the Bill of Rights took effect, and still had not taken wing by 1868 when the Fourteenth Amendment took effect.

If a Korematsu-like case had arisen in Hawaii instead of California, immediately after the bombing in December 1941, and the internment had been limited to hypothetical American citizens who obviously favored the bombing and were therefore likely Japanese recruitment targets,  and the government acknowledged that it would have to make out a case for treason or attempted treason in order to hold them very long, then I think it probably would have been constitutional assuming Congress specifically authorized it. 

MICHAEL RAMSEY ADDS:  Our usual custom on this blog is to limit exchanges to post/response/reply, to avoid unduly extended back-and-forth.  I'm granting myself an exception to this rule for the limited purpose of clarifying that in my prior post I'm emphatically not relying on substantive due process (or the Robinson theory of the Eighth Amendment).  My view is that there are certain traditional judicial procedures that the legislature cannot override (or authorize the executive to override).  In particular, the legislature cannot override the prerequisite of trial and conviction before imprisonment, even where the person (or group) is reasonably perceived as a national security threat (except when habeas corpus is suspended).  That was Justice Scalia's view, dissenting in Hamdi v. Rumsfeld, as to an individual and I think it applies equally to a group, as in the Korematsu analogues we are discussing.  I regard this as an appropriately procedural form of due process.

FURTHER UPDATE by Andrew: Just to be clear, I agree that detention without trial is generally unconstitutional, but there are exceptions.  A person could plead guilty or plea bargain to accept imprisonment while avoiding trial.  Or a person could be arrested pending trial, and be denied bail if the person poses a threat to others, resulting in pre-trial imprisonment.  Of course, a trial to determine if someone has committed the “crime” of merely being Japanese-American would not be very helpful to anyone, nor easily placed within any enumerated power of Congress.

The Battle of the "For Cause" Directors
Michael Ramsey

It seems somewhat likely (as much as these things can be predicted) that the Supreme Court will take up the question whether Congress can require an agency director to be removable by the President only for cause.  At Vox, Ian Millhiser has this post: Trump just asked the Supreme Court to let him fire the CFPB’s head. The implications are enormous.  Despite the doomsday title (actually, the implications really aren't all that enormous), it's a good overview.  Here is the introduction: 

On Tuesday, the Trump administration asked the Supreme Court to hear a lawsuit challenging the leadership structure of the Consumer Financial Protection Bureau (CFPB) — taking the same side as the people suing the government in a major constitutional dispute.

The administration essentially threw in the towel in the challenge to the consumer protection agency started by senator and presidential candidate Elizabeth Warren. As a general rule, the Justice Department has a duty to defend federal laws challenged in court. The administration, however, decided not to defend the law at issue in this case.

With the Justice Department urging the Court to weigh in, it is now very likely that the justices will do so. The policy implications of this suit, Seila Law v. CFPBare unclear. In the narrowest sense, Seila Law is a case about whether a federal agency can be led by a single director that the president cannot remove at will. More broadly, however, the case is the most recent skirmish in a war over what kind of government our Constitution permits.

I joined an amicus brief on behalf of "Separation of Powers Scholars" -- but really, on behalf of originalist separation of powers scholars -- written by Ilan Wurman of Arizona State law school, in support of the challengers.  (I am honored to be among such distinguished company: Steven Calabresi, Michael McConnell, Saikrishna Prakash, Jeremy Rabkin and Michael Rappaport).  Here is the introduction:

The for-cause removal provision respecting the director of the CFPB creates an unprecedented concentration of unsupervised executive power, threatens the separation of powers and democratic accountability, and is unconstitutional. The Constitution vests the executive power in the President of the United States. U.S. Const. art. II, § 1 (“The executive Power shall be vested in a President of the United States of America.”). Whatever else this power includes, at a minimum it includes the power to appoint, control, and remove principal executive officers. To be sure, the Constitution assigns some of this executive power away from the President: Article II, Section 2 gives the Senate a share in the appointment power. But other than the Constitution’s specific assignments away from the President, the executive power of the laws rests with the President. The Take Care Clause supports this structural inference, implying that the President has that species of power—the ability to direct and remove officers—to ensure the faithful execution of the laws. Id. § 3 (“he shall take Care that the Laws be faithfully executed”).

Two important sources confirm that the power to remove executive officers was part of the “executive power.” William Blackstone, whose Commentaries on the Laws of England guided the Framers’ drafting of the Constitution, included within his conception of “the executive power of the laws” the power to conduct prosecutions, to issue proclamations binding on subjects (and, therefore, subordinate officers) as to how the laws are to be executed, and to appoint assistants—strongly suggesting the power to direct and remove subordinate executive officers engaged in the kind of enforcement function at issue in this case. Further, the First Congress concluded that, although not expressly mentioned in the Constitution, this removal power was constitutionally vested in the President because it was part of the executive power—an inference supported by the Take Care Clause. 

At Law and Liberty, John McGinnis discusses a related case: How Originalism Changes Legal Analysis.  Here is the introduction:

In Collins v. Mnuchin, the Fifth Circuit, sitting en banc, advanced the concept of the unitary executive by holding that the structure of the Federal Housing Finance Agency (FHFA) was unconstitutional, because its director did not serve at the pleasure of the President. The opinion is very important for showing how lower court judges should address precedent in tension with their view of the original meaning of the Constitution—in this case, that Article II vests the entire executive power in the President and thus gives him control over agencies exercising executive functions. Led by judges recently appointed by President Trump, the Fifth Circuit is asserting that the original meaning should cabin Supreme Court precedent averse to original meaning. That is, such precedent should control the outcome of a case when it is directly on point, but should be narrowly read. Chief Justice John Roberts is not generally praised by originalists, but here lower court judges are aggressively following his lead in sharply revising precedent [that is] contrary to the original meaning of provisions that establish our separation of powers.

Collins is pretty much the same issue as Seila (although a different agency) and reaches the opposite conclusion -- hence my prediction that the Court might agree to get involved. 

The keys to the "single director" cases such as Seila and Collins are (a) that while there is Supreme Court precedent upholding "for cause" limitations on agency removals, it is only for multi-member boards, not single directors, and (b) the "for cause" single director is a recent and relatively narrow phenomenon.  Thus a ruling against the "for cause" single directors is not actually in itself all that big a deal as a practical matter, but in principle it would be an important declaration that nonoriginalist precedent in this area won't be extended any further.  That's basically what then-judge Kavanaugh said in dissent in an earlier single director case, PHH Corp. v. Consumer Financial Protection Bureau, 881 F.3d 75 (D.C. Cir. 2018).

RELATED: The Wall Street Journal has this editorial on the matter: Administrative State Under Judicial Fire -- Appeals courts brawl over agency power. Will the Justices intervene? (discussing the Collins case and noting "The influx of originalist judges to the federal bench is moving the center of judicial opinion on administrative power.").