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12 posts from November 2019

11/12/2019

Don't Fear Bivens
Michael Ramsey

Today is the Supreme Court oral argument in Hernandez v. Mesa, the cross-border shooting case.  One important background to the case is the suspicion with which originalist and originalist-leaning judges (including the late Justice Scalia) have viewed Bivens claims (Hernandez seeks to bring a Bivens claim against Mesa, a border patrol officer, for the shooting).

I think that suspicion is unjustified.  True, the Bivens case itself is poorly reasoned from an originalist perspective, and the Court's description of the Bivens process as an implied right of action under the Constitution is unfortunate.  But the basic proposition that persons harmed by federal officers acting unconstitutionally can bring claims against them was central to the framers' understanding of constitutional limits on federal power.  In the framers' world -- and indeed the world until Bivens was decided -- these claims would typically be state common law claims.  And, so long as state common law claims remained viable, Bivens was indeed an anomaly. 

But then (post-Bivens) Congress abolished state law claims against federal officers in the Westfall Act.  In my view, absent  a Bivens remedy the Westfall Act would be unconstitutional, as applied to state law claims based on unconstitutional behavior.  Congress lacks power to eliminate a remedy for unconstitutional behavior, as that action is not necessary or proper in support of any constitutional power.  The Westfall Act is constitutional only because Congress likely assumed Bivens remedies would remain in place.  Thus in the post-Westfall Act world, Bivens remedies take the place of the common law remedies assumed by the framers.  Sharply curtailing or eliminating Bivens, as Justice Scalia wished, would radically alter the checks on federal officers, as compared to the original constitutional design.

This amicus brief by the Institute of Justice, supporting the petitioners in Hernandez, makes a similar argument.  From the summary:

Bivens’s pedigree dates back to the English common law, which allowed damages actions for violations of fundamental rights. William Blackstone famously proclaimed that without a method for “recovering and asserting” fundamental rights, “in vain would rights be declared, in vain directed to be observed.” 1 William Blackstone, Commentaries on the Laws of England 55-56. The Founders were so committed to the common law tradition of holding government agents personally liable that anti-federalists, like Luther Martin and George Mason, opposed ratification of the U.S. Constitution in part because they feared that the newly created federal judiciary would take away this common law remedy. Federalists like John Marshall sought to reassure the delegates that the remedy would most definitely live on. After all, our constitutional rights are meaningless if courts cannot redress their violation.

As a result of this history, individuals, for much of America’s existence, could subject federal officers to common law tort liability for violations of constitutional rights. Such cases were heard in state and federal courts (depending on the subject matter), with the common law being the source of the tort remedy in both.

In Bivens, the Court allowed a direct constitutional remedy in federal court, as a supplement to common law remedies, concerned that in the post-Erie world, “leaving the problem of official liability to the vagaries of common-law actions” would hurt federal interests, such as the need to enforce the Constitution without being bound by state precedent. Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 409 (1971) (Harlan, J., concurring). Thus, in the seventeen year period between the Bivens decision and the passage of the Westfall Act, individuals could vindicate their constitutional rights either directly under the Constitution or through the system of common law remedies.

By passing the Westfall Act, Congress precluded all tort suits, including constitutional ones, against federal officers under state common law. But it preserved the right of aggrieved citizens to bring claims “for a violation of the Constitution of the United States.” 28 U.S.C. § 2679(b)(2)(A). This language, the Court has found, is an “explicit exception for Bivens claims.” Hui v. Castaneda, 559 U.S. 799, 807 (2010). In other words, Congress has passed the torch of accountability for constitutional violations from the system of common law remedies to Bivens. By shutting the door on recovery under state common law and still authorizing claims for violations of the Constitution in federal court, Congress made Bivens into the one and only mechanism for holding federal officers personally liable for unconstitutional conduct. ...

The key to this argument, as the brief emphasizes, is to see Bivens not as an anomaly but as a continuation of the common law and constitutional tradition, dating back to the founding, of suing federal officers for unconstitutional acts.  Thus to the extent Congress acknowledged Bivens in the Westfall Act, it should be understood as acknowledging not just claims on the specific facts of Bivens, but the broader tradition.

11/11/2019

Josh Blackman on the DACA Case [Updated]
Michael Ramsey

At Volokh Conspiracy, Josh Blackman: DOJ finally identifies the "constitutional defects" in DACA.  From the beginning:

In a 2017 letter, Attorney General Sessions concluded that DACA suffered from "constitutional defects." Over the past two years, the Department of Justice has steadfastly refused to acknowledge what these "constitutional defects were."

In DHS v. Regents of the University of California, Ilya Shapiro and I submitted an amicus brief on behalf of the Cato Institute and Professor Jeremy Rabkin. We lamented the fact that DOJ has never explained what these "constitutional defects" were, but urged the DOJ to state its position:

The better understanding is that the reference to DACA's "constitutional defects" was framed in terms of the major questions and non-delegation doctrines, as Justice Gorsuch recognized in Gundy. But if there is any doubt about this important question, the government should be asked to represent its position about DACA's "constitutional defects."

DOJ finally opined on this question in its reply brief (pp. 20-21) ...

RELATED (I): Professor Blackman notes that his amicus brief is discussed in a recent Washington Post column by George Will.  An excerpt:

The Trump administration's main reason for rescinding DACA is thoroughly disreputable but entirely permissible — that DACA is bad policy. Another and sufficient reason, however, is that DACA was implemented in accordance with the noxious theory that presidents acquire new constitutional powers by engaging in practices that a lethargic Congress does not challenge. As Cato's brief says, "The executive branch does not need the judiciary's permission to cease enforcing a regulation it determines to be unconstitutional. . . . Courts should allow reversals of novel execution actions that expand presidential power."

RELATED (II): Andrew Pincus, an attorney on an amicus brief supporting the claimants, has a helpful post at Balkinization outlining the background.  But the post actually convinces me of the the opposite of what he intends.  If a President has a reasonable argument that a presidential policy is unconstitutional, it seems clear that the President should be able to discontinue that policy.  To probe whether the President really believes the policy is unconstitutional (as Pincus asks) appears beyond both the constitutional mandate and the institutional capacity of the judiciary.

The DACA case, DHS v. Regents of the University of California, will be argued on Tuesday.

UPDATE: Also at Volokh Conspiracy, Ilya Somin has a contrary view: Why DACA Is Legal.

Professor Somin may be right, but I think the correct question for the Court is not whether DACA is legal, but whether the Attorney General unreasonably concluded it was not legal.  That seems a much harder case to make.

11/10/2019

James Rogers on Ken Kersch on Originalism and Conservatism
Michael Ramsey

At Law & Liberty, James R. Rogers (Texas A & M, Political Science): Originalism, Conservatives, and the Constitution (reviewing Conservatives and the Constitution: Imaging Constitutional Restoration in the Heyday of American Liberalism, by Ken I. Kersch [Cambridge 2019]).  From the introduction:

In Conservatives and the Constitution: Imaging Constitutional Restoration in the Heyday of American Liberalism, Ken I. Kersch provides a tour de force survey of conservative constitutional theory between World War II and 1980. The book, the first of a planned trilogy, provides as much an intellectual history of American conservatism during this period as it does a conservative constitutional theory. The scope of his discussion impresses. From traditionalists, libertarians, Straussians, religious leaders (Catholic, Evangelical, Jewish and Mormon), to Austrian economists, neoconservatives, public choice and rational choice theorists, all come within the book’s compass.

Kersch argues throughout that liberals—and the liberal professoriate, particularly those in law schools—do not recognize the heterogeneity of conservative constitutional thought prior to the Reagan Revolution of 1980. This lack of recognition results partly from the absence, if not exile, of conservative academics from the ascendant liberalism of the legal academy during the period (until the early 1970s). This lack of recognition also results from the identification today of conservative constitutionalism with “originalism.” Doing so, however, projects backwards an intellectual movement gaining ascendency largely after 1980, even though its roots were planted in the earlier period.

In a book as ambitious and wide ranging as Kersch has written, there are bound to be a few missteps. Some minor, if not almost trivial, others more a matter of perspective, and a few are more serious. ...

And from further on, this comment on orignalism:

There is, after all, a difference between constitutional theory and a theory of constitutional interpretation, even as they interrelate. To be sure, one’s constitutional theory cannot help but influence one’s constitutional interpretation in the face of textual ambiguity. Yet originalism is a theory of constitutional interpretation, and as such it is not—nor can it be—a constitutional theory in itself. Indeed, significant differences in constitutional theories divide modern originalists—despite agreement that textual interpretation should be originalist. (Consider the heated discussion among L&L contributors on the Fourteenth Amendment’s privileges and immunities clause some months back.)

Kersch at times writes as if modern originalism is at variance with conservatives during this period who advocated amending the Constitution or who criticized significant aspects of the Constitution. While originalist legal scholars undoubtedly have opinions of what provisions they think should be included or excluded in a constitution, the interpretive project of originalism is to understand the text of the Constitution as it is actually written. As an interpretive methodology, originalism is agnostic as to what should or should not be included in that text. Critics of originalism often conflate focus on understanding original text with worshipping original text. This as opposed to originalism as an interpretive methodology whether one approves of the text or not. The mistake in this gloss is more difficult to make when thinking of originalist approaches to statutory interpretation (a major focus of Justice Scalia’s book on originalism). There, originalist/textualist interpretation of the statutory text can rarely be mistaken as “worship” of the often obscure topics legislated in the interpreted statute. “Constitutions” are just special types of statutes.

Here is the description of Kersch's book from Amazon:

Since the 1980s, a ritualized opposition in legal thought between a conservative 'originalism' and a liberal 'living constitutionalism' has obscured the aggressively contested tradition committed to, and mobilization of arguments for, constitutional restoration and redemption within the broader postwar American conservative movement. Conservatives and the Constitution is the first history of the political and intellectual trajectory of this foundational tradition and mobilization. By looking at the deep stories told either by identity groups or about what conservatives took to be flashpoint topics in the postwar period, Ken I. Kersch seeks to capture the developmental and integrative nature of postwar constitutional conservatism, challenging conservatives and liberals alike to more clearly see and understand both themselves and their presumed political and constitutional opposition. Conservatives and the Constitution makes a unique contribution to our understanding of modern American conservatism, and to the constitutional thought that has, in critical ways, informed and defined it.

(Thanks to Mark Pulliam for the pointer.)

11/09/2019

George Christie: The Well-Intentioned Purpose but Weak Epistemological Foundation of Originalism
Michael Ramsey

George C. Christie (Duke University School of Law) has posted The Well-Intentioned Purpose but Weak Epistemological Foundation of Originalism (Connecticut Law Review, Vol. 51, No. 2, p. 451, 2019) (31 pages) on SSRN.  Here is the abstract:

The attraction of an originalist approach to constitutional interpretation is understandable. It is maintained that only that method can provide the judicial objectivity and certainty that constitutional adjudication requires.  They claim that the traditional common-law evolutionary approach leads Supreme Court Justices to succumb to the temptation to fill in gaps in constitutional law and thereby ignore that major expansions in constitutional meaning and should be made in the way the Founders envisioned, namely by amendment of the Constitution. However difficult or impractical that process may be, it is the only way to avoid the politicization of the Court. Whether that goal is achievable is highly unlikely, as is shown by the large number of five-to-four decisions of the Court. The original understanding is often hotly contested and, as shown in this Essay, often inconsistently applied. It is naive to expect that, once the Court claims to have discovered the original understanding, a future Court would not disagree.

Significant members of the founding generation realized that, in the process of interpreting and applying the Constitution, its meaning would evolve, even in ways that were contrary to the expectations of the Founders, and this is what has happened. In trying to halt and even overturn those developments, originalists have also failed to consider that the founding generation was concerned with more than the semantics of the Constitution as if it were a secular scripture.

As is argued in this Essay, the Founders also had understandings about what was the comparative importance of its clauses in case of conflicts. In adopting the Constitution their ultimate purpose was to create a lasting political society. It is hard to believe that they would accept economic collapse or civil unrest for what some judges believed was textual faithfulness.

As to the first point, Justice Scalia would say: originalism doesn't have to be perfect in achieving objectivity and certainty; it just has to be better than competing theories.

As to the second point -- is Professor Christie suggesting that the political branches should depart from the text as necessary (in their view) to head off "economic collapse or civil unrest"?  So the President can decline to hold an election or to leave office after four years, and rule by decree, to avert economic collapse or civil unrest, via an implied emergency power?  I'm not sure he really wants to make that claim, and I think to the contrary the framers wrote the text in the way they did exactly to prevent such claims.

11/08/2019

New Book: "The Free Exercise of Religion in America" by Ellis West
Michael Ramsey

Recently published, by Ellis M. West (Richmond, Political Science): The Free Exercise of Religion in America: Its Original Constitutional Meaning (Palgrave Macmillan, 2019).  Here is the book description from Amazon:

This book explains the original meaning of the two religion clauses of the First Amendment: “Congress shall make no law [1] respecting an establishment of religion or [2] prohibiting the free exercise thereof.” As the book shows, both clauses were intended to protect the free exercise of religion or religious freedom.  West shows the position taken by early Americans on four issues: (1) the general meaning of the “free exercise of religion,” including whether it is different from the meaning of “no establishment of religion”; (2) whether the free exercise of religion may be intentionally and directly limited, and if so, under what circumstances; (3) whether laws regulating temporal matters that also have a religious sanction violate the free exercise of religion; and (4) whether the free exercise of religion gives persons a right to be exempt from obeying valid civil laws that unintentionally and indirectly make it difficult or impossible to practice their religion in some way. A definitive work on the subject and a major contribution to the field of constitutional law and history, this volume is key to a better understanding of the ongoing constitutional adjudication based on the religion clauses of the First Amendment.

Via this brief and generally positive book review posted on SSRN by Richard Garnett (Notre Dame), at Review of Politics 82 (2019), 1-3.  Professor Garnett concludes in part:

West’s study is, notwithstanding its above-mentioned long gestation, timely, in part because there are reasons to believe that more than a few, and perhaps a majority, of the current Supreme Court are open to reconsidering the 1990 ruling in Employment Division v. Smith, which announced a rule that is consistent with West’s conclusions: Generally speaking, although legislative exemptions from general laws for religious objectors are constitutionally permissible and, in many cases, morally warranted, the Free Exercise Clause does not require, or even authorize, judges to create them. Of course, the Smith ruling was criticized and controversial from the outset, and Congress and state legislatures alike responded to it with statutory exemption-creation regimes such as the 1993 Religious Freedom Restoration Act. Some of Smith’s leading scholarly critics insist, contra Prof. West, that the case’s rule is inconsistent with the First Amendment’s original meaning. Others emphasize the facts that, regardless of public understanding or expectations in 1791 (or, perhaps, in 1868, when the Fourteenth Amendment was ratified), the dramatic increases in both religious diversity and government regulations require a constitutional role that provides greater protection for vulnerable minorities from political majorities. And, still others warn that, for a variety of reasons – the weakening of and loss of confidence in religious institutions, the much-remarked “rise of the nones” and general secularization, the increasing salience of “culture war”-related conflicts between the religious commitments of some and others’ understandings of equality’s demands, etc. – it can no longer be taken for granted that American officials, administrators, regulators, and citizens assign foundational importance to religious freedom and its demands.

11/07/2019

My Thoughts on Segall versus Solum
Michael Ramsey

Last week I promised some thoughts on the exchange between Eric Segall and Larry Solum.  Here they are.

To oversimplify, Professor Solum argues that sometimes originalism requires interpreters to consider changed facts (or changed understandings of facts) in applying a text's original meaning.  (His example is Bradwell v. Illinois, asking whether a law barring women from becoming lawyers violates the equal protection clause; his answer is that, because we now understand that women are equal to men in terms of practicing law, there is an equal protection violation, even if that was not understood at the time of enactment.)  Professor Segall says that this move converts originalism into living constitutionalism because it gives judges discretion to update the Constitution in accord with modern values.

I'm with Solum on this one (though I'm with Segall on some other matters).

The Bradwell example does not involve changing the meaning of the equal protection clause.  "Equal" still means what it meant at the time of enactment.  It's just that we now understand that two things are equal (in that original meaning) although previously they were thought unequal.  I once saw an exhibit at a science museum that displayed an array of objects arranged around two parallel lines, creating an optical illusion in which one line appeared much longer than the other.  If you asked me, are these two lines equal in length, I would have said no.  But when the lines were measured with a ruler, it turned out that they were the same length.  If you then asked me, are these two lines equal in length, I would have said yes they are; I was mistaken before.  This change does not depend on a change in the meaning of "equal" -- in reaching my second conclusion, I am using the original meaning of equal.  So with Bradwell.

But the Bradwell situation is unusual in constitutional law.  Most provisions don't work like the equal protection clause, which states a rule whose application is highly dependent on facts.  Consider (as I often like to) the declare war clause.  Assume the original meaning of the declare war clause is that the President must have the approval of Congress before initiating military hostilities.  Further assume that the framers thought this was a good rule because hostilities unfolded relatively slowly in the eighteenth century, so requiring Congress' approval was not a threat to national security.

Now assume in the modern world we conclude, because of the increase in the speed with which threats develop, that requiring congressional approval to initiate hostilities produces a serious national security problem.  May a modern originalist interpreter "update" the declare war clause in light of modern circumstances to allow presidential wars in response to developing threats?

My answer (and I assume Professor Solum's answer) is: absolutely not.  If the original meaning of the declare war clause is that the President must get Congress' approval, the application of that meaning in the modern world isn't affected by the changes in the technology of warfare.  The President still must get Congress' approval.  True, the changes in the technology of warfare may make the rule, as established by the original meaning, a greater threat to national security.  But that's an argument about whether the original meaning establishes a good rule, not an argument about what the rule is.  The change in factual circumstances is irrelevant to identifying the rule established by the declare war clause.

I think most constitutional provisions (especially outside the Fourteenth Amendment) are like the declare war clause, not like the equal protection clause.  And even if they aren't, the declare war clause example shows that sometimes, at least, originalism is different from living constitutionalism.

11/06/2019

Daniel Birk: Interrogating the Historical Basis for a Unitary Executive
Michael Ramsey

Daniel D. Birk (Chicago-Kent College of Law) has posted Interrogating the Historical Basis for a Unitary Executive (48 pages) on SSRN.  Here is the abstract:

This Article demonstrates that the historical claims about the original meaning of the executive power made by proponents of the "unitary executive" theory of presidential and executive power in the United States are largely unfounded. The ability to remove executive officials was not one of the prerogative powers possessed by the King of England at the time of the framing of the U.S. Constitution. Moreover, the king neither appointed nor was able to remove all of “his” principal officers, many of whom held their offices for life or pursuant to other forms of tenure and operated largely free of the king’s direction or control. While the king possessed plenary authority to choose his high-level advisers and the officers who carried out his prerogatives over the military and foreign affairs, Parliament frequently regulated the appointment, qualifications, and tenure of other executive officials in Great Britain, including by protecting them from removal by the king or his ministers, when there was good reason to do so.

The evidence surveyed in this Article, which includes confirmation from a previously overlooked passage from one of James Madison's writings in The Federalist Papers, has important implications for debates over the unitary executive theory as well as for this term's Supreme Court case over the constitutionality of the Consumer Financial Protection Bureau. It suggests that the Constitution does not proscribe efforts by Congress to insulate regulatory and law-enforcement officials, such as the heads of independent agencies and special prosecutors, from political interference.

11/05/2019

Josh Blackman & Seth Barrett Tillman on Congress Approving Emoluments [Updated]
Michael Ramsey

At Volokh Conspiracy, Josh Blackman & Seth Barrett Tillman, Senator Blumenthal's Emoluments Clause brief conflicts with INS v. Chadha.  From the introduction:

The Foreign Emoluments Clause provides that "[N]o Person holding any Office of Profit or Trust under [the United States], shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State." In a series of briefs and articles, we have explained that the phrase "Office of Profit or Trust under [the United States]" applies to appointed federal officers, but not to elected officials. Therefore, the Foreign Emoluments Clause does not forbid the President or members of Congress from accepting foreign government gifts and emoluments. Congressional consent is not a precondition to their accepting such things. By contrast, appointed officers need congressional consent before accepting foreign government gifts and emoluments. This understanding of the operation of the clause is consistent with the original practice of the government under Washington, his administration, and his successors in the early Republic who were Framers and founders, and their administrations.

When Congress has chosen to grant its consent, it has acted by statute: an instrument passed by both houses of Congress and presented to the President. ... INS v. Chadha (1983) teaches that these resolutions, like any other statute however stylized, must comply with the requirements of bicameralism and presentment—that is, the resolutions must be approved by both houses of Congress and be presented to the President. ...

However, Senator Blumenthal and other Democratic members of Congress articulated a different theory about congressional instruments that consent to foreign state gifts and emoluments. In a recent brief filed in Blumenthal v. Trump, the plaintiffs stated that the President plays no role when Congress, under the Foreign Emoluments Clause, grants consent to a covered officer's accepting a foreign state gift or emolument.

The Framers' decision to give Congress an ongoing procedural role in vetting foreign emoluments—an exclusive authority exercised without the President—was a deliberate one. Unlike the Foreign Emoluments Clause, some constitutional prohibitions give Congress no special role to play, e.g., U.S. Const. art. II, § 1, cl. 7 (Domestic Emoluments Clause), while others require only that certain acts be authorized "by Law," e.g.id. art. I, § 9, cl. 7 (Appropriations Clause).

Plaintiffs' Opposition Brief at 9–10 (D.C. Cir. Oct. 22, 2019) (emphasis added). The plaintiffs contend that a concurrent resolution would suffice to approve a foreign state gift or emolument. This sort of instrument is merely passed by both houses of Congress and is not separately presented to the President. Plaintiffs' position is novel: such a concurrent resolution cannot have the force of law. Instead, the Constitution, under settled Supreme Court precedent, demands that Congress must use a bona fide statute, even if stylized as a so-called joint resolution.

Maybe.  I'm not sure Chadha is decisive because it (arguably) relied on the fact that the resolution changed private rights.  But Article I, Section 7 is categorical: "Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States; ..."  It would take some work to get around that.  On the other hand, a literal reading  of Article I, Section 7 would seem to include some other things that I think not everyone agrees must be presented to the President, including declarations of war (Art. I, Sec. 8); congressional consents to various state activities (Art. I, Sec. 10); and (especially) proposals for constitutional amendments (Art. V).

UPDATE: John Vlahoplus comments: 

One might also consider the roles of state legislatures under the federal constitution.  Those roles have included prescribing the times, places and manners of holding federal elections; directing the manner of appointing the state’s Electors; choosing the state’s U.S. Senators; ratifying proposed constitutional amendments; consenting to federal purchases of state lands and to the formation of certain states; and directly appointing the state’s Electors.  In some of these cases the legislature might function in a lawmaking capacity, submitting its decisions to the executive for approval or veto.  In others it might function as an assembly, independent of the executive.  In yet others its function might differ depending on how it acts—as an assembly if by majority vote or in a lawmaking capacity if by a plurality vote.  If it acts as an assembly, it might act by concurrence of both houses or by joint ballot.  Indeed, Article I, Section 7 might not even apply to consent under the Foreign Emoluments Clause. The Clause might allow Congress to consent by joint ballot rather than concurrence.

The Supreme Court has applied a functional test to determine whether a state legislature acts as a lawmaking body or an assembly under specific constitutional provisions.  A functional test might authorize Congress to act as an assembly under the Foreign Emoluments Clause.  The Clause provides a check.  The Constitution might allow Congress, as a steward, to waive that check—including for the President if the presidency is an office of profit or trust under the United States. 

For much of the constitutional history noted above, see James C. Kirby, Jr., here at 501-03.

11/04/2019

William Baude & Stephen Sachs: The Misunderstood Eleventh Amendment
Michael Ramsey

William Baude (University of Chicago Law School) and Stephen E. Sachs (Duke University School of Law) have posted The Misunderstood Eleventh Amendment (52 pages) on SSRN.  Here is the abstract:

The Eleventh Amendment might be the most misunderstood amendment to the Constitution. Both its friends and enemies have treated the Amendment’s written text, and the unwritten doctrines of state sovereign immunity, as one and the same — whether by reading broad principles into its precise words, or by treating the written Amendment as merely an illustration of unwritten doctrines. The result is a bewildering forest of case law, which takes neither the words nor the doctrines seriously.

The truth is simpler: the Eleventh Amendment means what it says. It strips the federal government of judicial power over suits brought against states, in law or equity, by diverse plaintiffs. It denies subject-matter jurisdiction in all such cases, to federal claims as well as state ones, and in only such cases. It cannot be waived. It cannot be abrogated. It applies on appeal. It means what it says. Likewise, the Amendment does not mean what it does not say: it neither abridges nor enlarges other, similar rules of sovereign immunity, derived from the common law and the law of nations, that limit the federal courts’ personal jurisdiction over unconsenting states.

Current case law runs roughshod over these distinction, exposing sound doctrines to needless criticism, and sometimes leading the Court badly off track. A better understanding of the Amendment’s text lets us correct these errors and respect the unwritten principles that the Amendment left in place.

Just in time for this case: Allen v. Cooper  -- Supreme Court oral argument scheduled for 11/5/19; Question presented: "Whether Congress validly abrogated state sovereign immunity via the Copyright Remedy Clarification Act in providing remedies for authors of original expression whose federal copyrights are infringed by states."

(This paper will be presented at the originalism works-in-progress conference in San Diego in February 2020.)

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

11/03/2019

Daniel Rice on Federalism and the Treaty Power
Michael Ramsey

At Just Security, Daniel Rice (Institute for Constitutional Advocacy and Protection): Female Genital Mutilation and the Treaty Power: What Congress Can Do.  From the introduction:

Since 1996, the act of female genital mutilation (FGM) has been a federal crime. Federal circuit courts have characterized FGM as “a barbaric practice unbecoming of a civilized society,” “a form of physical torture causing grave and permanent harm,” and “a horrifically brutal procedure.” According to a high-ranking official in ICE’s Homeland Security Investigations unit, “[b]rutality of this nature is inconceivable and horrifying.” And the Solicitor General of the United States recently declared FGM to be “an especially heinous practice . . . that should be universally condemned.” In keeping with this uncompromising posture, successive administrations have used their diplomatic clout to pursue the global eradication of FGM.

...

But in November 2018, Judge Bernard Friedman of the U.S. District Court for the Eastern District of Michigan issued a sweeping opinion holding the FGM statute unconstitutional on the grounds that neither Congress’s treaty-implementing authority nor its power to regulate interstate commerce justified § 116(a)’s enactment.

... Despite “condemn[ing] [FGM] in the strongest possible terms,” DOJ insisted that no reasonable argument could be made in the statute’s defense under either the treaty power or the Commerce Clause. DOJ then moved to withdraw its appeal ...  The Sixth Circuit granted DOJ’s motion, thereby ensuring that the district court’s extraordinary ruling would avoid appellate review.

...

My thesis is simple: both the district court and DOJ performed disastrously. Each actor predicated its constitutional analysis on an astonishingly shallow understanding of the nature of FGM and the legal framework for regulating it. In this article, I will explain why § 116(a) is justifiable as a means of implementing the United States’ treaty obligations. There is a clear rational relationship between the FGM statute and rights protected under the International Covenant on Civil and Political Rights (ICCPR). And even if federalism principles constrained Congress’s ability to implement treaty obligations—which, under current law, they do not—FGM is not the sort of “purely local” crime purportedly reserved for state and local regulation.

It's an insightful and informative post, but my view is different -- as explained in an article I wrote after Bond v. United States (the case involving the woman in Pennsylvania who attempted to poison a romantic rival and was prosecuted for violating the Chemical Weapons Convention implementation act): Congress’s Limited Power to Enforce Treaties.

Contrary to Justice Scalia's concurrence in the Bond case, I think Congress (as an original matter) does have power to enforce treaties from a combination of the President-and-Senate's power to make treaties and Congress' power to "make all laws which shall be necessary and proper for carrying into Execution ... all other powers vested in the Government of the United States, or in any Department or Officer thereof."  But in order to constrain the threats to federalism identified by Scalia's concurrence, I argued that the "necessary and proper" requirement should be interpreted to impose two constraints:

(a) the treaty obligation Congress seeks to enforce should be unambiguous (so that Congress cannot augment its power beyond what the treatymakers intended);  and

(b) the treaty obligation Congress seeks to be enforce should not be readily enforceable by the states (so that Congress' action is really "necessary").

Applied to the FGM statute, I wouldn't say there is no reasonable argument in favor of Congress.  But although it's a close case I would say the statute, as applied to purely local incidents, fails both prongs of the test.   First, the treaty obligation is not unambiguous.  There is no treaty prohibiting FGM by name.  As the linked post explains, the supposed obligation comes from Article 24 of the International Covenant on Civil and Political Rights (ICCPR), which provides that “[e]very child shall have, without any discrimination as to race, colour, sex, language, religion, national or social origin, property or birth, the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State.”  Maybe this provision prohibits FGM (the UN Human Rights Committee says it does), but maybe it doesn't.  My view is that only obligations the Senate clearly approved in the treatymaking process should be the foundation for congressional enforcement -- else the political protections for federalism embodied in the treatymaking process can be circumvented.

The post argues that "an implementing statute need be only rationally related to the treaty it seeks to effectuate."  I think that's the wrong standard, both as an original matter and as a matter of modern law.    The implementing statute needs to be tied (we can debate how closely) to an actual obligation in the treaty (not just to an obligation that could possibly be found in the treaty).  Otherwise, Congress has far too much ability to legislate beyond what the treaty authorizes.

As to the second point, it's not clear to me why FGM cannot be prohibited at the local level.  The post argues that (a) FGM is a matter of international concern because it has generated international opposition and international support for its suppression, and (b) that it often involves travel across state or national boundaries.  As to the first point, I don't think that matters.  The question is whether states have the will and ability to act against it.  In its purely local manifestation, I would think they do.  If states have systematically failed to act, that might make federal intervention necessary.  But it's not clear that states are refusing to act.  As to the second point, Congress can use its interstate and foreign commerce power to suppress interstate and foreign travel for commercial purposes, and the treaty implementation power might allow Congress to suppress noncommercial travel across state lines.  But the fact that such travel occurs does not make it necessary for Congress to regulate purely local activity.

So on balance I think Judge Friedman and the Justice Department got it right, despite Daniel Rice's excellent argument to the contrary.    Congress' power to implement treaties is, as Justice Scalia argued in Bond, a grave threat to federalism if not adequately constrained.    Congress needs to show that it is implementing an obligation clearly contained in the treaty (not just an arguable one) and that congressional action is necessary because the states are unwilling or unable to enforce that obligation.