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5 posts from December 2019


Michael Greve on Justice Gorsuch's "A Republic, If You Can Keep It"
Michael Ramsey

At Law & Liberty, Michael Greve: Three Cheers (Very Nearly) for Justice Neil M. Gorsuch.  From the introduction:

When Richard Reinsch asked me to review Justice Neil M. Gorsuch’s recent book, A Republic, If You Can Keep It, I entertained some doubts: I suspected that I might like it, but know full well that I have never written and probably cannot write in a gentle key. To borrow one of William F. Buckley’s lines: Sarcasm—snark—isn’t my preferred mode of discourse, it’s my only mode of discourse, one wholly unsuited to this occasion. But let’s see if we can make this work.

With the generously acknowledged assistance of two law clerks, Justice Gorsuch has collected some of his speeches, excerpts from law review articles, and extracts from some of his written opinions, all edited for length and stripped of footnotes and other distractions. The Justice complements and rounds out the collection with anecdotes and reflections on his family background; his beloved West; colleagues, friends, mentors, and role models; and life-shaping moments, including his nomination and appointment to the U.S. Supreme Court.

An overused aphorism for a title; snippets and war stories: that cannot work, you’d think. But it does work, splendidly. Justice Gorsuch makes good on his choice of the title (see below). The essay and opinion excerpts hold together and often convey insights in a way that is not easily replicable in a more conventional format. And the author has a point to make (several excellent points, in fact). This isn’t a vanity project; it’s a serious work of civic education.

And from the conclusion:

I haven’t managed to get the tone of those observations quite right. They’re meant not as criticism but as encouragement. A constitutional rehabilitation project of the kind I’ve hinted at cannot be accomplished, and should not be attempted, in a book intended for a broad audience. It cannot be accomplished in a handful of individual judicial opinions, either; it is a long-term project for the entire Court. It will require judicial courage, patience, a certain humility, and a deeply grounded understanding of the Constitution and the way it’s supposed to work.

Neil M. Gorsuch understands all that, and he possesses those virtues in spades. To our great good fortune, he has just the right day job.


Aditya Bamzai: Delegation and Interpretive Discretion
Michael Ramsey

Aditya Bamzai (University of Virginia School of Law) has posted Delegation and Interpretive Discretion: Gundy, Kisor, and the Formation and Future of Administrative Law (133 Harvard Law Review 164 (2019)) (37 pages) on SSRN.  Here is the abstract:

Congress is supposed to write laws. So much seems apparent from the constitutional design, which in no uncertain terms vests “[a]ll legislative Powers herein granted . . . in a Congress of the United States” and forces Congress to exercise those “Powers” through an elaborate process of enacting the same legal text in two legislative chambers and presenting the passed bill to the President for approval. But in the modern state, and for quite some time, Congress has delegated authority to write rules and regulations with the status of laws to administrative agencies situated within the executive branch. In turn, those agencies have written rules and regulations affecting the private lives of citizens, and litigants have sometimes challenged in court an agency’s authority to promulgate, and to interpret, a rule. Two critical issues that arise out of this arrangement are the limits, if any, on Congress’s power to delegate such rulemaking authority to agencies and the interpretive methodology that courts ought to apply when a private party disagrees with the executive branch’s interpretation of one of those rules.

This Comment addresses two cases decided this past Term, Gundy v. United States and Kisor v. Wilkie, that appeared poised to break substantial new ground on these two issues. In both Gundy and Kisor, the Court fractured, producing plurality opinions that ensure the questions the Court addressed in both cases will remain live ones for years to come. Notwithstanding the Gundy and Kisor opinions’ fractured quality, setting the two cases side by side highlights the interrelated nature of administrative law doctrines, as well as the current Court’s understanding of administrative law’s two foundational codes, the Constitution and the Administrative Procedure Act. This Comment seeks to assess whether the Gundy and Kisor opinions get the questions that they address right and what the opinions tell us about the future.


James Durling & Garrett West: Appointments Without Law
Michael Ramsey

James Durling (Independent) and E. Garrett West (Independent) have posted Appointments Without Law (105 Virginia Law Review 1281 (2019)) (76 pages) on SSRN.  Here is the abstract:

Debates about the Appointments Clause tend to turn on drawing the right distinctions. This Article argues that the Appointments Clause draws a little-recognized distinction between the officers specifically enumerated by the Clause (“Ambassadors,” “other public Ministers and Consuls,” and “Judges of the supreme Court”) and the officers referred to only as a residual category (“all other officers of the United States”). The basic claim is that enumerated offices need not be “established by Law”—that is, by congressional legislation—but are established instead by the Constitution or the law of nations.

Although the “enumerated-residual distinction” has been essentially ignored by judges and scholars, it raises a basic interpretive puzzle. The Appointments Clause appears to give the President the same authority to appoint each category of enumerated officers. But in practice, we have construed the President’s authority to appoint diplomats and Supreme Court Justices quite differently. Since the Founding, the President has appointed diplomats without congressional authorization, but at the same time everyone has assumed that Congress must pass a statute before the President may appoint any Justices.

This Article argues that the President has the authority to appoint both diplomats and Justices without congressional authorization. This view accords with the Constitution’s text, suits the unique constitutional status of the Supreme Court, and was advanced by political actors soon after the Constitution’s ratification. But even if one rejects the strongest version of this argument, the Article’s core insight—that the Appointments Clause requires parallel treatment of diplomats and Justices—has a series of potential implications for constitutional doctrine.


James Rogers on Incorporating the Establishment Clause
Michael Ramsey

At Law & Liberty, James R. Rogers (Texas A & M, Political Science): Incorporating the Establishment Clause, Wrongly.  From the introduction: 

In a supreme irony, the First Amendment’s Establishment Clause, incorporated against state governments by the Supreme Court via the Fourteenth Amendment in 1947, is precisely the type of national usurpation of state government policies that the Clause was adopted to prohibit.

The First Amendment’s religion clauses form the well-known start to the Bill of Rights, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” The Amendment includes two different religion clauses, an Establishment Clause and a Free Exercise Clause. To understand how these clauses apply to state governments, we need first to understand the First Amendment itself, and then we need to understand the liberty guarantee of the Fourteenth Amendment, which is the means by which some parts of the U.S. Constitution’s Bill of Rights have come to apply to state governments.

While some overlap exists between the two clauses, each serves broadly different functions. When the U.S. Supreme Court first applied the Establishment Clause to the states in 1947—in Everson v. Board of Education—it did so without discussion of the nature of the Establishment Clause itself. The Court merely appealed to dictum from a Free Exercise case from 1943 which struck down a Pennsylvania tax on the sale of religious merchandise. The Court’s decision to incorporate the Establishment Clause was subject to scholarly criticism early on. The debate over the appropriateness of incorporating the Establishment clause revived in the early 2000s as a result of a series of concurring opinions by Justice Thomas.

The criticism of incorporating the Establishment Clause of the U.S. national Constitution and applying it to restrict state governments via the liberty guarantee of the Fourteenth Amendment arose because incorporation is based on a fundamental misreading of the Establishment Clause, and a misunderstanding of the nature of religious establishments. . . . 

(Thanks to Mark Pulliam for the pointer.)


Hassan Jabareen on Originalism and Israeli Constitutionalism
Michael Ramsey

Hassan Jabareen (Hebrew University of Jerusalem) has posted The Paradigm of Originalism: Israeli Constitutional Law and Legal Thought (Israel Law Review 52(3) 2019, pp 427–454) (28 pages) on SSRN.  Here is the abstract:

This review essay challenges three main claims about originalism in American legal thought. While it affirms that originalism could be the Law of a legal system, it first challenges the mainstream idea that American originalism is the paradigmatic case in theory and in practice. Second, the essay confronts the normative justification that originalism ensures democracy based on the rule of law. Third, it interrogates the dichotomy between living constitutionalism and originalism regarding the use of history by arguing that originalism is a form of hegemony. The case study analyzed in this article is Israeli legal thought and practice after the enactment of the 1992 Basic Laws, with the focus on the right of equality.