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29 posts from February 2020


Samuel Bray & Paul Miller: Against Fiduciary Constitutionalism
Michael Ramsey

Samuel L. Bray (Notre Dame Law School) and Paul B. Miller (Notre Dame Law School) have posted Against Fiduciary Constitutionalism (52 pages) on SSRN.  Here is the abstract: 

A growing body of scholarship draws connections between fiduciary law and the Constitution. In much of this literature, the Constitution is described as a fiduciary instrument that establishes fiduciary duties, not least for the President of the United States.

This Article examines and critiques the claims of fiduciary constitutionalism. Although a range of arguments are made in this literature, there are common failings. Some of these involve a literalistic misreading of the works of leading political philosophers (e.g., Plato and Locke). Other failings involve fiduciary law—mistakes about how to identify fiduciary relationships, about the content and enforcement of fiduciary duties, and about the relationship of fiduciary status to good faith. Still other failings sound in constitutional law—linguistic confusions and an impossible attempt to locate the genre of the Constitution in the categories of private fiduciary law. These criticisms suggest fundamental weaknesses in the new and increasingly influential attempt to develop fiduciary constitutionalism.

Three of the leading targets (whose views vary quite a bit among themselves) are Gary Lawson and Guy Seidman's book "A Great Power of Attorney" Understanding the Fiduciary Constitution (2017); Randy E. Barnett & Evan D. Bernick, The Letter and the Spirit: A Unified Theory of Originalism, 107 Georgetown L.J. 1 (2018); and Andrew Kent, Ethan J. Leib, & Jed Handelsman Shugerman, Faithful Execution and Article II, 132 Harv. L. Rev . 2111 (2019).  So this is an ambitious and wide-ranging debate.


John McGinnis on Originalism and Independent Agencies
Michael Ramsey

At Law & Liberty, John McGinnis: Independent Agencies Brought to Heel? (discussing the Seila Law case, to be argued to the Supreme Court next week).  From the introduction:

Independent agencies—agencies whose heads cannot be fired by the President at will—raise profound questions of constitutional structure and political accountability. The Constitution vests the executive power in a single person—the President of the United States. Yet independent agencies can wield some of that power outside of presidential control. Democratic political theory prizes policy accountability to elected officials. But once appointed, the principal officers of independent agencies are not directly accountable to anyone. Such agencies, like the Securities and Exchange Commission (SEC) and the Federal Trade Commission (FTC), continue to grow in importance with the burgeoning of the administrative state.


Next Tuesday, the Supreme Court will hear arguments about the constitutionality of the Consumer Financial Protection Bureau (CFPB) [ed.: in Seila Law LLC v. Consumer Financial Protection Board]. I predict that the Supreme Court, probably in an opinion by Chief Justice John Roberts, will find that this agency is unconstitutional without ruling directly that all independent agencies are unconstitutional. The CFPB is different from most traditional independent agencies in two ways: It has a single director, rather than a board of politically balanced commissioners, and it has an independent funding source because it enjoys access to a percentage of the revenues of the Federal Reserve, another independent agency. It thus trenches on the President’s authority more than the traditional independent agency because he may face the power of a single director appointed by a President of an opposing party and because he has no leverage in the appropriation process, where he would generally be able to wield his veto power.

It is not clear how much difference these formal distinctions make for the actual freedom of action of independent agencies. But the opinion will likely mirror a previous opinion that the Chief Justice wrote in Free Enterprise v. Public Accounting Oversight Board, in which he took the unitary executive promised by Article II’s vesting of executive power in the President and the political accountability that it provides as the constitutional baseline. The opinion will almost certainly not challenge independent agencies run by bipartisan commissions and dependent on yearly appropriations because they have previously been upheld by the Court. But these agencies will be treated as exceptions to the general rule that the President should control his agents. The unitary executive will become the background rule with islands of historical exceptions. As I have noted before, this approach is the characteristic way that John Roberts deploys originalism—not to overturn precedent that contradicts original meaning but to limit its generative force.

I hope he is right; this is the approach urged in the originalist separation of powers amicus curiae brief in Seila Law.

I also think Seila Law undermines the complaint that originalism has become so multifarious in its forms that it can't agree on any outcomes of consequence.  (For example, in this recent review by Jeremy Telman, and also in an array of commentary by leading originalism critic Eric Segall.)  To the contrary, I see widespread agreement among originalist scholars and originalist-oriented judges and Justices that "independent" (that is, for-cause removal) agencies, to the extent they exercise executive power, are inconsistent with the original meaning of Article II.  To be sure, there are opposing textual and historical arguments advanced by scholars and judges who are not themselves originalists.  But I think within the originalist "family" there is a strong consensus here (even if there is not full agreement on the methodology, the normative justifications, or the modern implications).

RELATED:  In The Atlantic, Mario Loyola: Trump’s DOJ Interference Is Actually Not Crazy (among other things, describing broad support for the idea of presidential control over executive and independent agencies among conservative and originalist scholars and judges).   (Via Iain Murray at Instapundit).


Jeremy Telman Reviews "Originalism's Promise" by Lee Strang
Michael Ramsey

D.A. Jeremy Telman (Valparaiso University Law School) has posted The Structure of Interpretive Revolutions (Constitutional Commentary, forthcoming) (30 pages) on SSRN.  Here is the abstract:

This Essay reviews Lee Strang’s natural law defense of originalism, Originalism’s Promise. The Essay first summarizes Strang’s argument, which has both descriptive and normative components. The descriptive component, Strang’s “communication model,” offers both historical and prudential arguments for why we should accept an originalist account of our constitutional history and practice. The normative component, Strang’s “coordination model,” offers an Aristotelian defense of originalism as the best way to promote human flourishing and the common good.

This Essay next offers four criticisms of Strang’s approach. First, Strang understates the problems of constitutional indeterminacy, because he has not adequately addressed the level of generality problem. Second, Strang’s communication model adopts an under-theorized order of operations. If one follows Strang’s approach but changes the order of operations, one can manipulate the theory to produce any pre-determined outcome. Third, Strang exaggerates both the extent of consensus among originalist scholars and the qualitative differences between originalism and non-originalism. Finally, Strang presents a heavily majoritarian perspective on the Constitution, which cannot account for the role of federal courts in protecting individual rights against majoritarian encroachments.

The Essay then uses Strang’s book as an illustration of the collapse of the originalist paradigm. Originalism is now a dysfunctional family of related theories. It has become too incoherent to serve as a useful description of our constitutional tradition, nor can its adherents agree on its normative basis. At the same time, Strang’s book illustrates the increasing divide between originalist scholarship and the popular constitutionalism that animated early originalism. While popular originalism still preaches judicial restraint, academic originalism confidently advocates reversal of precedent, while providing the federal judiciary with the power to veto state and federal laws and regulations. The Essay concludes by indicating some of the characteristics of the emerging post-originalist paradigm for understanding our tradition of constitutional interpretation and implementation.

Here is a link to Professor Strang's book, Originalism's Promise: A Natural Law Account of the American Constitution (Cambridge Univ. Press 2019).  As an aside, the review is not as negative as the abstract suggests, and it contains a good bit of praise for Professor Strang's project (while at the same time making some sharply pointed criticisms).


Randy Barnett: Three Keys to the Original Meaning of the Privileges or Immunities Clause
Michael Ramsey

Randy E. Barnett (Georgetown University Law Center) has posted Three Keys to the Original Meaning of the Privileges or Immunities Clause (Harvard Journal of Law and Public Policy, Vol. 43, No. 1, 2020) (13 pages) on SSRN.  Here is the abstract: 

Establishing the original meaning of the Fourteenth Amendment’s Privileges or Immunities Clause requires a wealth of evidence. But three key data points are crucial to identifying the core of its meaning. First, Supreme Court Justice Washington’s explanation of the meaning of “privileges and immunities” in Corfield v. Coryell; second, the rights protected by the Civil Rights Act of 1866; and third, Michigan Senator Jacob Howard’s speech explaining the content of the Privileges or Immunities Clause when introducing the Fourteenth Amendment to the United States Senate in 1866. Any theory of the Privileges or Immunities Clause and its original meaning that cannot comfortably accommodate these three items is highly questionable.

(Via Larry Solum at Legal Theory Blog, who says "Highly recommended").


Justice Thomas on Mandatory Original Jurisdiction
Michael Ramsey

In yesterday's dissent from denial of cert (actually, denial of a motion for leave to file a bill of complaint) in Arizona v. California, Justice Thomas questions the Court's ability to refuse to hear a case arising under original jurisdiction (in this case, where a state is a party): 

Today the Court denies Arizona leave to file a complaint against California. Although we have discretion to decline review in other kinds of cases, see 28 U. S. C. §§1254(1), 1257(a), we likely do not have discretion to decline review in cases within our original jurisdiction that arise between two or more States.

The Constitution establishes our original jurisdiction in mandatory terms. Article III states that, “[i]n all Cases . . . in which a State shall be [a] Party, the supreme Court shall have original Jurisdiction.” §2, cl. 2 (emphasis added). In this circumstance, “[w]e have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given.” Cohens v. Virginia, 6 Wheat. 264, 404 (1821) (Marshall, C. J., for the Court).

Our original jurisdiction in suits between two States is also “exclusive.” §1251(a). As I have previously explained, “[i]f this Court does not exercise jurisdiction over a controversy between two States, then the complaining State has no judicial forum in which to seek relief.” Nebraska v. Colorado, 577 U. S. ___, ___ (2016) (opinion dissenting from denial of motion for leave to file complaint) (slip op., at 2). Denying leave to file in a case between two or more States is thus not only textually suspect, but also inequitable.

The Court has provided scant justification for reading “shall” to mean “may.” It has invoked its “increasing duties with the appellate docket,” Arizona v. New Mexico, 425 U. S. 794, 797 (1976) (per curiam) (internal quotation marks omitted), and its “structur[e] . . . as an appellate tribunal,” Ohio v. Wyandotte Chemicals Corp., 401 U. S. 493, 498 (1971). But the Court has failed to provide any analysis of the Constitution’s text to justify our discretionary approach.

I agree that the text seems to point to mandatory rather than discretionary review (at least for constitutional claims) and that the Court has been pretty lame in explaining why the contrary rule is justified.  (Seriously, the argument is that mandatory review would require it to work too hard?)  So Justice Thomas seems, as is often the case, both reasonable and way out in front of anyone else (except Justice Alito, who concurred with Thomas) on this issue.

On the other hand, does Arizona even have standing to bring the claim?  The question is whether California's application of a tax to Arizona limited-liability corporations that invest in California corporations is constitutional.  Surely the Arizona LLCs can bring the claim on their own behalf?  Do states have standing to bring claims when their citizens are injured?


Ilya Somin on Nondelegation and Travel Bans
Michael Ramsey

At Volokh Conspiracy, Ilya Somin: A Nondelegation Challenge to Trump's Travel Bans.  From the introduction: 

President Trump's recently announced expanded travel ban policy has most of the same moral, policy, and constitutional flaws as his previous travel bans. Nonetheless, the conventional wisdom holds that there is little, if any prospect of successfully challenging it in court, because the most obvious arguments against it were rejected by the Supreme Court in Trump v. Hawaii, which ruled against legal challenges to the previous travel ban policy, of which the new one is an expansion.

... [B]oth the previous travel ban policy and the new expanded version are vulnerable to constitutional challenge on a basis that was never even considered by the Supreme Court in Trump v. Hawaii: nondelegation. And it's a basis that could potentially prove appealing to at least some of the very same conservative justices who were crucial to the majority in Trump. Liberal justices might support it too.

Nondelegation is the idea that Congress cannot delegate legislative power to the executive branch. The Constitution gives legislative power to Congress, not the president. Thus, there must be some limit to Congress' ability to give the latter the power to determine what is or is not illegal. For example, it would surely be unconstitutional for Congress to give the president the power to ban any private activity  he wants, so long as he decides doing so would be in the public interest.

Where to draw the line between legitimate discretion and impermissible  delegation is a hard issue that has bedeviled judges and legal scholars. For a long time, in fact, the conventional wisdom was that the Supreme Court had no interest in giving nondelegation doctrine any teeth. But last year's ruling in Gundy v. United States shows that at least four conservative justices are interested in enforcing the doctrine more robustly than has so far been the case. Indeed, even the four liberals may be willing to give it at least some modest teeth- enough, as we shall see, to place the travel bans in peril.

As interpreted by the majority opinion in Trump v. Hawaii, federal law grants the president virtually unlimited discretion to exclude immigrants and other potential entrants into the United States, for almost any reason he wants. If that doesn't qualify as an unconstitutional excessive delegation, it is difficult to see what does.

Perhaps, but I'm not convinced that this is the best vehicle for pursuing a revived nondelegation doctrine (assuming that's an originalist goal, contra this article).  First (as Professor Somin acknowledges) there's an argument that excluding aliens at the border is an independent constitutional authority of the President, apart from any delegation; Justice Thomas made this argument in concurrence in Trump v. Hawaii.  Second, it may be that the nondelegation doctrine has less force in foreign affairs that it does elsewhere.  That was the actual holding of the Curtiss-Wright case, and (unlike that case's unsupportable dicta) it might have some foundation in the original design.  (Mike Rappaport suggested an originalist "selective" nondelegation doctrine that might have less force in foreign affairs in this article).


Mark Graber: Original Expectations
Michael Ramsey

Mark Graber (University of Maryland - Francis King Carey School of Law) has posted Original Expectations (Connecticut Law Review, forthcoming) (29 pages) on SSRN.  Here is the abstract:

Professor Kay’s increasingly lonely crusade for interpreting constitutional provisions in light of their original intentions captures how constitutions should be implemented immediately after ratification, with the important proviso that expectations matter as much as intentions. Insisting that the constitution on day one mandates X even though everyone responsible for the constitution thought the constitution mandated not-X violates common sense. A jurisprudence of original intentions at day one acknowledges that constitutions are political documents that serve political purposes and avoids making linguistic theory the practical arbiter when debates break out over impeachment procedures, the regulation of slavery, and the status of state sovereign immunity. At day one, Professor Kay’s originalism best captures the constitutional commitment to rule of law and the underlying constitutional politics of ratification. Intentions and expectations guide the planning processes facilitated by the rule of law. Framers, at least in the United States, spend far more energy making predictions about how the constitution will work than in laying out the meaning of particular phrases. The persons responsible for a constitution focus on intentions and expectations rather than meanings because their concern is with how the constitution as a whole will work and not with the best interpretation of a particular constitutional clause.

The reasons for preferring original intentions/expectations to original public meanings at day one provides grounds for abandoning all originalisms at day ten. If original public meaning cedes too much constitutional authority to linguists at the moment of ratification, both original public meaning and original intentions/expectations cede too much constitutional authority to historians over time. Doctrinalism at day ten better captures the constitutional commitment to rule of law than any form of originalism. People when planning are far more likely to assume that constitutional decision makers will continue to do what they are doing than base decisions on original public meanings that may be unknown to both the planners and constitutional decision makers. Purposivism at day ten better incorporates constitutional developments, particularly those constitutional developments ratifiers did not anticipate, than either original public meaning or original intentions/expectations.


Originalist Showdown over Employment Division v. Smith?
Michael Ramsey

In The New Republic, Matt Ford: Conservative Supreme Court Justices Take Aim at Scalia.  From the introduction:

Justice Antonin Scalia, who died four years ago last week, is among the most celebrated figures in the conservative legal movement. ...

But that reverence does not extend to one of his most influential opinions: the majority decision he authored in Employment Division v. Smith in 1990.  In Smith, Scalia concluded that courts could not use the First Amendment’s free exercise clause to carve out exemptions from “neutral laws of general applicability”—in that case, Oregon’s criminalization of peyote. The ruling drew criticism from religious groups across the country and led to a wave of religious freedom legislation that sought to provide protections that the court refused to enforce on its own.

Three decades later, a coalition of religious groups and legal scholars is now asking the Supreme Court to overturn its ruling in Smith through a new case, Ricks v. Idaho Contracting Board. It argues that Scalia’s concerns about judicial power proved to be largely unfounded, that he misunderstood the framers’ vision of free-exercise protections, and that the ruling has unfairly burdened religious minorities in such cases ever since. If the justices agree to take up the case, the court’s conservative justices could ultimately scrap one of their icon’s most influential decisions.

If the Court takes on challenge to Smith, it will be an originalist event of major proportions.  The originalist arguments on both sides are very strong.  At the Federalist Society Lawyer's Convention last November, I saw Michael McConnell (Stanford) debate Philip Hamburger (Columbia) on the topic and concluded (1) those are two extraordinarily impressive originalist scholars and (2) I have no idea who's right.

Justice Scalia did not help himself with an uncharacteristically weak opinion in Smith (somewhat reinforced by his concurrence in the later case Boerne v. Flores).  His core conclusion in Smith was only that the claimants had not proved that the original meaning of the free exercise clause required exceptions to generally applicable laws.  But substantial originalist scholarship since then (especially by Professor McConnell) has undertaken to prove that proposition, and lawyers are much more sophisticated in making originalist arguments now.

I hope the Court will hear the Ricks case.  Among other things, you can't top these facts (from Ford): 

The case centers around George Ricks, an Idaho contractor who refused to provide his social security number when registering with the Idaho Bureau of Occupational Licenses in 2014. In his petition for the court, Ricks’s lawyers say he has “long had concerns, based on his understanding of the Bible, that it is morally wrong to participate in a governmental universal identification system, especially to buy or sell goods and services.” More specifically, Ricks asserted in a self-written filing in state court that he believes his social security number is “a form of the mark, and in substance (essence) the number of the 2-horned beast written of in the Holy Bible.”


Originalism Works in Progress Conference in San Diego
Michael Ramsey

Today and tomorrow we will host the Eleventh Annual Hugh and Hazel Darling Foundation Originalism Works in Progress Conference at the University of San Diego Law School.  Here is the lineup of papers and commentators: 


Josh Blackman on Executive Power
Michael Ramsey

At Volokh Conspiracy, Josh Blackman:  New Op-Ed in the Washington Post: "The Constitution does not place a wall between the president and the Justice Department".  From the introduction:

The Washington Post invited me to write an op-ed about President Trump, Attorney General Barr, Roger Stone's sentencing. It is titled, "Trump has the constitutional power to intervene in Roger Stone's sentencing. The Constitution does not place a wall between the president and the Justice Department."

Here is the introduction:

President Trump tweeted last week that he has the "legal right" to tell Attorney General William P. Barr how to handle Roger Stone's prosecution — bringing the fury of the legal establishment down on him. Federal prosecutors had recommended a seven-to-nine-year sentence for Stone, who was convicted of perjury and witness tampering. Trump tweeted that the recommendation was "horrible and very unfair." Subsequently, the Justice Department dropped the recommendation.

More than 2,000 former Justice Department employees promptly declared in an open letter that they "condemn" Trump and Barr's "interference in the fair administration of justice." Donald Ayer, who served as deputy attorney general under President George H.W. Bush, wrote in the Atlantic magazine of Barr's complicity in the sentencing shift: "Given our national faith and trust in a rule of law no one can subvert, it is not too strong to say that Bill Barr is un-American."

Un-American? Absolutely not. Unconstitutional? Not even close. Unwise? Yes. As a policy matter, the president should stay out of sentencing decisions, especially those involving his friends. But the president is correct that he has the legal authority to intervene in the case. The Constitution does not create a wall of separation between the president and the Justice Department. To the contrary, the Constitution vests the "executive power" in the president. And the decision whether and how to prosecute someone ultimately belongs to the president.

Agreed.  I made similar points here, though Professor Blackman is as always more eloquent and insightful.

RELATED: From Glenn Reynolds at Instapundit:

Also, the idea that a president shouldn’t be involved in these decisions is anti-constitutional. The executive power — all of it — is vested in the president by Article II of the Constitution. The rules of custom and etiquette that have grown up to the effect that presidents should stay at arms length may be a good idea — or not — but they have nothing to do with the Constitution and to the extent they purport to limit the president are actually in contradiction to the constitution.

Correct.  The President is the chief law enforcement officer of the U.S. government in the same sense that he is the commander-in-chief of the U.S. armed forces.  He is constitutionally the ultimate authority (although it's usually best if he leaves operational matters to the attorney general and the joint chiefs, once they have his confidence).