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27 posts from June 2020


Jed Shugerman on the Imaginary Unitary Executive
Michael Ramsey

Jed Handelsman Shugerman (Fordham Law School) has posted two new papers (or, Parts I and II of one paper) on SSRN: The Indecisions of 1789: Strategic Ambiguity and the Imaginary Unitary Executive (Part I) (61 pages) and The Decisions of 1789 Were Non-Unitary: Removal by Judiciary and the Imaginary Unitary Executive (Part II) (52 pages). Here is the abstract:

Supporters of the unitary executive rely on “the Decision of 1789” to establish an originalist basis for presidential removal power at will. However, the first Congress’s legislative debates and a diary (missed by legal scholars) suggest strategic ambiguity and retreat on the constitutional questions, and the Treasury Act contradicted the unitary model. Here are seven overlooked moments from 1789 that dispel unitary assumptions:

1) The “decision” is premised on an ambiguous text and an indecisive unicameral legislative history. Madison's switch from explicit power to a contingency clause was likely strategic ambiguity to get the bill passed in the Senate and to move forward on an urgent legislative agenda. House opponents called this move a retreat and questioned its integrity, and the House debates show the presidentialist/unitary view was held by only one third of the House...

2) …and a Senator’s diary indicates the Senate sponsors, in order to win passage, denied the clause was important, disclaimed its constitutional meaning, and disavowed even the presidential power itself. A comment by a House member who supported the presidentialist view hinted at this strategy on the day of the pivotal vote.

3) Justices have erred in claiming that the first Congress decided officers served “at will.” Few members of Congress spoke in favor of presidential removal at pleasure in 1789. The first Congress gave such a low degree of protection to only two offices: marshals and deputy marshals. Meanwhile, in the Treasury debate, opponents of presidential removal power warned against presidential corruption and successfully deleted (without needing debate) a provision that the Treasury Secretary would “be removable at the pleasure of the President.”

4) A tale of two Roberts: two finance ministers, one English, one during the Articles of Confederation era, both scandalous. A reference by Madison during the Treasury debate provide context for independent checks, as opposed to a unitary hierarchy.

5) Judges and scholars have missed that Madison proposed that the Comptroller, similar to a judge, should have tenure “during good behavior.” Though Madison dropped this proposal, the debate reflected his more consistent support for congressional power and how little had been decided in the Foreign Affairs debate.

6) Most problematic for the unitary theory, the Treasury Act’s anti-corruption clause established removal by judges: Offenders “shall be deemed guilty of a high misdemeanor… and shall upon conviction be removed from Office.” The 1789 debates had focused on presidential corruption of finance, and this clause allowed relatively independent prosecutors and judges to check presidential power. Congress added similar judicial removal language to five other statutes between 1789 and 1791, and many more over the next 30 years.

7) These debates pilloried prerogative powers and discussed justiciability of for-cause removals in the English writ tradition, suggesting a larger role for Congress and the courts to investigate presidential power.

For the powers cited by unitary theorists (the constitutional basis for presidential removal power, offices held “during pleasure”), the first Congress was, in fact, indecisive. On whether the president had exclusive removal power, the first Congress decisively answered no. If post-ratification history is relevant to constitutional meaning, the “Decision of 1789” presents more challenge than support for the unitary theory, with implications for Seila Law v. CFPB, independent agencies, independent prosecutors, the Trump subpoena cases, and justiciability.

Without having yet read the whole paper, I would only say quickly that the core of the unitary executive theory is that the President has removal power, not necessarily that the President has exclusive removal power.  So I'm not sure I see that point (6) above is "[m]ost problematic" (or even really problematic at all) for the unitary theory.  The process described does seem of questionable constitutionality, but that is because of the impeachment clause, not the executive power clause.


More Utah Originalism from Justice Thomas Lee
Michael Ramsey

From the Utah Supreme Court's unanimous decision in Mitchell v. Roberts (June 11. 2020), per Associate Chief Justice Thomas Lee: 

We would thus uphold the legislature’s decision if the question went merely to the reasonableness of its policy judgment. But that is not the question presented for our review. We are asked instead to interpret and apply the terms of the Utah Constitution (in particular, the Due Process Clause). We take a solemn oath to uphold that document—as ratified by the people who established it as the charter for our government, and as they understood it at the time of its framing. That understanding is controlling.

The original meaning of the constitution binds us as a matter of the rule of law. Its restraint on our power cannot depend on whether we agree with its current application on policy grounds. Such a commitment to originalism would be no commitment at all. It would be a smokescreen for the outcomes that we prefer.

Our laws are written down for a reason. And a key reason is to establish clear, fixed limits that the public may rely on—unless and until the law is repealed or amended by established procedures for doing so. The people of Utah retain the power to amend the Utah Constitution to alter the legislature’s authority in this area if they see fit. But the document as it stands (and as originally understood) forecloses the legislature’s power to enact legislation that retroactively vitiates a ripened statute of limitations defense.

And from later in the opinion:

In the latter part of the nineteenth century the principle of due process was viewed at least in part through the lens of the separation of powers and the concept of vested rights. Due process thus flavored the original understanding of the “legislative power” throughout the country and specifically in Utah. And the original understanding of the ratifying public dictates our answer to the questions presented in this case.

In the era of the framing of the Utah Constitution, the public understood the principle of “due process,” at least in part, as a matter relegating certain functions to the courts and not the legislature. Nathan S. Chapman & Michael W. McConnell, Due Process As Separation of Powers, 121 YALE L.J. 1672, 1781–82 (2012). The legislature was viewed as prohibited from exercising judicial functions—in interpreting and applying the law to the disposition of a case in which a party’s rights or property were in dispute. “This meant the legislature could not retrospectively divest a person of vested rights that had been lawfully acquired under the rules in place at the time.” Id. at 1782. The legislature “could enact general laws for the future, including the rules for acquisition and use of property, but [it] could not assume the ‘judicial’ power of deciding individual cases.” Id. Retroactive divestment statutes were viewed as judicial in nature (in the nature of “deciding individual cases”) because these laws were backward looking and operated to deprive individuals of rights and property “acquired under the rules in place at the time” of acquisition. Id. at 1782; id. at 1738 (“[C]ourts invalidated legislative acts to protect vested rights because the acts were quasi-judicial ‘sentences’ rather than genuine ‘laws.’”). Thus, valid legislative acts, in contrast to retroactive divestment statutes, stated the law going forward rather than “determin[ing] specific applications of law or . . . punish[ing] past acts”—functions relegated to the judiciary.14 Id. at 1719. Because divestment statutes operated to confiscate or vitiate previously vested rights, the nineteenth-century public viewed these laws as “judicial decrees in disguise.” Nathan N. Frost et al., Courts over Constitutions Revisited: Unwritten Constitutionalism in the States, 2004 UTAH L. REV. 333, 382 (2004) (citation omitted). And the public viewed such legislative encroachment into the domain of the judiciary as unconstitutional both as a matter of the principle of separation of powers itself and under the due process clause, which was understood as policing the division of powers between coordinate branches of government.

(Via How Appealing.)


Robert Pushaw: Comparing Literary and Biblical Hermeneutics to Constitutional and Statutory Interpretation
Michael Ramsey

Robert J. Pushaw (Pepperdine University - School of Law) has posted Comparing Literary and Biblical Hermeneutics to Constitutional and Statutory Interpretation (Pepperdine Law Review, Vol. 47, No. 2, 2020) (30 pages) on SSRN.  Here is the abstract: 

Interpreters determine the meaning of language. To interpret literary and biblical texts, scholars have developed detailed rules, methods, and theories of human understanding. This branch of knowledge, “hermeneutics,” features three basic approaches. First, “textualists” treat words as directly conveying their ordinary meaning to a competent reader today. Second, “contextualists” maintain that verbal meaning depends on generally shared linguistic conventions in the particular historical and cultural environment of the author—and that therefore translations or commentaries are necessary to make the writing intelligible to a modern reader. Third, “hermeneutic circle” scholars argue that texts have no objective meaning. Rather, a person’s subjective perspectives and norms affect his or her understanding of a text, which then generates new meanings that in turn may influence future readers. These three methodologies have parallels in the legal field. Most importantly, judges and scholars have interpreted the United States Constitution by employing (1) textualism, (2) originalism—discerning the meaning of constitutional provisions in historical context, or (3) subjective “living constitutionalism.” Similarly, federal statutes have been analyzed by applying textualism, contextbased pragmatism, or freewheeling “dynamic interpretation.” In this Essay, I will begin by summarizing the three main approaches to literary and biblical hermeneutics. I will then explore their analogues in federal constitutional and statutory interpretation.


Josh Blackman & Seth Barrett Tillman on Territorial Officers
Michael Ramsey

At Volokh Conspiracy, Josh Blackman & Seth Barrett Tillman:  The PROMESA Board Members Are Not "Officers of the United States." So What Are They?  From the introduction:

Recently, the Supreme Court decided Financial Oversight and Management Bd. for Puerto Rico v. Aurelius Investment, LLC. This case considered the status of members of the Financial Oversight and Management Board for Puerto Rico, who are appointed by the President without the Senate's advice and consent. These positions were created by The Puerto Rico Oversight, Management, and Economic Stability Act of 2016 (PROMESA).

All nine Justices agreed that the appointment of these board members is not subject to the strictures of the Appointments Clause: that is, appointment by the President, with advice-and-consent by the Senate. All nine Justices also agreed that these board members are not "officers of the United States." However, the Justices parted company on the next question: what precisely are the PROMESA board members? The majority opinion by Justice Breyer punts on this question. Justice Thomas's concurrence hints at the answer. And Justice Sotomayor's concurrence suggests these board members occupy some other type of position in a "zone of twilight." This case illustrates that the precise characterization of federal positions is important. We cannot simply presume that the Constitution indiscriminately refers to different types of "offices" and "officers." Our taxonomy provides a better answer: Article IV Territorial Officers Hold "Office[s] under the Authority of the United States," and are bound by the Sinecure Clause.

And from later on:

Article IV territorial officers are not "officers of the United States." They are not appointed pursuant to the Appointments Clause. Moreover, we think these territorial officers do not hold "office . . . under the United States." These positions exist outside the three branches of the federal government. Justice Thomas's concurrence alludes to this point in the passage we quoted above. According to Justice Thomas, the power to authorize territorial positions comes from Article IV; therefore such positions are not within the three branches of government. But there is another phrase in the Constitution that provides a more natural fit for Article IV territorial officers.

The Ineligibility Clause, also known as the Sinecure Clause, states, "[n]o Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been [i]ncreased during such time. . . ."  This Clause is the only provision in the Constitution that uses the phrase "civil Office under the Authority of the United States." Who holds such an office? In our view the phrase "civil Office under the Authority of the United States" encompasses all officers of the United States, but also refers to a broader category of irregularly appointed officers. 


Barzun on Originalism and Living Constitutionalism
Mike Rappaport

Over at Balkinization, Charles Barzun criticizes originalism.  I am not sure that I understand his argument entirely, so I will just give some specific responses.  Barzun’s words are indented.  Mine are not indented.

It is an essential feature of the Constitution that it is the kind of thing that is amenable to different but proper interpretations over time, and it is in virtue of that amenability to change that (at least in part) it compels our obedience to it as our fundamental law.

I mainly disagree with this, especially the first part of the sentence (the nonitalized part).  The Constitution is the kind of thing that is correctly interpreted only in one way.  It is true that sometimes the answers are not clear.  And in those situations, a court may make a mistake, and later courts may follow that interpretation.  But that is not because the mistaken interpretation was “different but proper.”  Rather, it is because our precedent rules sometimes require that we follow mistaken interpretations in order to protect other interests such as reliance.

My suggestion is that this last, italicized phrase [ed, the italicized portion above] contains the essential nugget of living constitutionalism.  In philosopher’s lingo, it amounts to the claim that the Constitution’s adaptability to changed circumstances—precisely its “living” quality—is what grounds (at least in part) its normative claim on us.  I qualify it with “at least in part” because the Constitution (and its interpretations) must clearly satisfy some minimal threshold of moral adequacy in order to compel obligation.  But the basic idea is to stress the moral significance of the Constitution’s responsiveness to social, political, and economic change.  Let’s call this claim the adaptability claim.

I agree that, as a normative matter, the adaptability of the Constitution to changing values and circumstances is important.  But Barzun completely ignores the Amendment Process.  That is how the Constitution is to be adapted to new values and circumstances, when such adaptation is needed.  In fact, as John McGinnis and I show, living constitutionalism undermines the Amendment Process, largely preventing it from operating.       

At first blush, the adaptability claim seems to be nearly the opposite of what originalists argue, which is that the Constitution’s current authority derives primarily from the continuity it establishes between the law today and the founding (though they, too, would likely acknowledge the need for some minimum moral threshold).  Thus, the adaptability claim seems to be a meaningful claim and a genuine rival to originalism.

Yes, I agree with that, although Barzun will take it back in his next paragraph.

But it’s not hard to see that the adaptability claim just restates the traditional theory of the common law, according to which the law evolves through case-by-case adjudication.  If that’s right, then even originalists are committed to the adaptability claim, for every time a judge decides a constitutional case (or refuses to do so) the Constitution has either adapted or failed to adapt.  And who would deny that the Court should respond properly rather than improperly in such cases?  Surely Chief Justice John Marshall had something like this idea in mind when he famously insisted that “we must never forget that it is a constitution we are expounding.”  And that’s true even if the proper response was to rule the Bank of the United States unconstitutional.

Unless I am misunderstanding Barzun here, I believe he is mistaken here.  First, even assuming that the common law has this adaptability quality, the Constitution is not the common law.  It is a controversial, and I think erroneous claim, to view the written Constitution as common law.

Second, Barzun’s interpretation of Chief Justice Marshall’s statement that “we must never forget that it is a constitution we are expounding,” while a common one, is by no means clearly correct.  As John McGinnis and I argue in this article:  “While Marshall certainly addresses the problems of allowing future decision makers to respond to new circumstances, his argument is not that the Constitution should be adapted to mean whatever those future decision makers believe it should mean. Instead, he argues that this problem of anticipating future circumstances requires that Congress be given broad authority so that it can choose among the means.”  Moreover, we add that “it is significant that the . . . interpretation [followed by Barzun] was not one that was followed by the courts at the time.  During the nineteenth century, this quote was never cited to support the view that the meaning of the Constitution could change over time.”  It was only during the New Deal that it came to mean what Barzun thinks it means.  

More from Charles Barzun on Originalism and Nonoriginalism
Michael Ramsey

At Balkinization, Charles Barzun: An Unoriginal Joke (Part II), or Why We are all Living Constitutionalists. From the introduction: 

In Part I of this post [Ed.: noted here], I sought to explain the point of a joke tweet I had made in which I offered a theory of living constitutionalism as a satire.  The point was to pose a question to the new generation of originalists.  It asked, given how potentially capacious an understanding of originalism they defend, what’s at stake for them in defending it?  Why does it matter to them to prove originalism true if its substance has become so diluted?
This Part puts the same question to the other side of the debate.  The worry is that originalism has become so drained of substance that it’s no longer worth resisting.  If Jack Balkin can be an originalist, why can’t we all?  Is there any essential idea at the heart of living constitutionalism to which even a very ecumenical form of originalism fails to do justice?
I think the answer is both yes and no.  I think that there is such an essential idea but that it’s one even originalists accept or should accept.  Once we see why that is, it becomes possible to reframe the traditional debate in a way that, in my view, shows more clearly the question at the heart of what Larry Solum has called The Great Debate.
In my view the supposed convergence of originalist and nonoriginalist approaches and outcomes is greatly overstated, although it seems to be assumed among some (nonoriginalist) constitutional theorists.  Consider, for example, the "faithless electors" case, discussed by John McGinnis here.  The question is whether states can punish or replace electors who vote (or plan to vote) for persons other than the candidate who received the most votes in their respective states.  As Professor McGinnis recounts, some Justices at oral argument seemed concerned that a ruling against the states would have unfortunate modern consequences.  That seems an appropriate concern as a matter of nonorignalism but (as Professor McGinnis says) an inappropriate concern as a matter of originalism.  And whether the Justices take that concern into account or not may well be determine the outcome of the case.  So I remain unpersuaded that there's no real difference between originalism and nonoriginalism.


Robert Post: Tension in the Unitary Executive
Michael Ramsey

Robert Post (Yale Law School) has posted Tension in the Unitary Executive: How Taft Constructed the Epochal Opinion of Myers v. United States (Journal of Supreme Court History, 2020) on SSRN.  Here is the abstract:

This article is excerpted from the forthcoming Volume X of the Oliver Wendell Holmes Devise History of the Supreme Court of the United States, which covers the period 1921-1930 when William Howard Taft was Chief Justice. The article will be published in an upcoming issue of the Journal of Supreme Court History.

The article offers for the first time a detailed account of the process by which William Howard Taft authored his pathbreaking opinion in Myers v. United States, the first Supreme Court decision ever to hold a statute of Congress unconstitutional because incompatible with Article II prerogatives of the President. The decision was six to three, featuring strong dissents by Brandeis, McReynolds, and Holmes. Using archival sources, the article discusses competing views within Taft’s majority coalition of six, as well as Taft’s own independent views about the question of the presidential power of removal.

Analyzing the reasoning of Myers in detail, the article argues that the decision is neither an example of originalism, as Justice Antonin Scalia has claimed, nor is it compatible with contemporary understandings of the “unitary” executive.


An Originalist Argument for Overruling Employment Division v. Smith
Michael Ramsey

In Fulton v. City of Philadelphia, the Center for Constitutional Jurisprudence filed this amicus brief in support of the petitioners, addressing the question whether the Supreme Court should overrule its reading of the free exercise clause in Employment Division v. Smith, 494 U.S. 872 (1990) (per Justice Scalia).  Here is the summary of argument: 

Amicus agrees with Petitioners that the Court should overrule Employment Division v. Smith, 494 U.S. 872 (1990). Courts applying Smith frequently deny relief even when the law imposes a substantial burden on the exercise of religion—a situation as intolerable as if the controlling standard for free speech routinely allowed censorship. Thirty years’ hardship under a faulty constitutional standard is long enough.

Without Smith, the Court can restore the Free Exercise Clause to its full vigor. Deciding how to do that depends on two questions. What does the Clause mean? And how should it be applied?

This brief addresses only the question of original public meaning—not the separate question of contemporary application. We argue that the Free Exercise Clause was originally understood to protect the unqualified right to exercise religion, free from government interference. Another amicus brief explains that the Free Exercise Clause should be applied through a combination of recognized categorical rules and strict scrutiny. See Brief of The Church of Jesus Christ of Latter-day Saints, et al. as Amicus Curiae Supporting Petitioners, Fulton v. Phila., No. 19-123.

A serious effort to determine the  meaning of the Free Exercise Clause begins with the “duty to interpret the Constitution in light of its text, structure, and original understanding.” N.L.R.B. v. Canning, 573 U.S. 513, 573 (2014) (Scalia, J., concurring in judgment). Although Smith is criticized for not considering the history of the Free Exercise Clause, it is hardly alone in that respect. See Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 575 (1993) (Souter, J., concurring in part and concurring in judgment). No opinion of the Court has explored that history since the nineteenth century, id. at 574, though Justices Scalia and O’Connor debated rival historical interpretations while advocating for and against Smith. For Justice Scalia, history denied that “accommodation was understood to be constitutionally mandated by the Free Exercise Clause.” City of Boerne v. Flores, 521 U.S. 507, 541 (1997) (Scalia, J., concurring). For Justice O’Connor,  “the right to free exercise was viewed as generally superior to ordinary legislation, to be overridden only when necessary to secure important government purposes.” Id. at 555 (O’Connor, J., dissenting).

Our review of historical evidence—including materials that are frequently overlooked—suggests a different approach. Americans in 1789 understood the Free Exercise Clause as a guarantee that the new federal government would not make laws curtailing the exercise of religion. Decades later, the Fourteenth Amendment was added on the understanding that the right to exercise religion also would be unqualified against the states. Those who enshrined these provisions in our Constitution understood them as a pledge that all Americans could exercise their religion freely. It is that original understanding that ought to weigh heavily in the balance as the Court decides how to honor that pledge now—and in the future.

This reading of the Free Exercise Clause is consistent with the place that the constitutional founders assigned religious freedom. Preserving it was one of the grand aims of the Revolutionary War. Religious freedom was widely understood at the time as an inalienable right and as a condition of maintaining a republican form of government. New York and other states refused to enter the Union without an assurance that the Constitution would be amended to protect religious freedom. Every state ratifying convention that proposed a religious freedom amendment gave the free exercise of religion unqualified protection.

Interpreting the Free Exercise Clause as an unqualified right is also consistent with the constitutional text and legislative history, as well as early legal treatises. A categorical right to exercise religion attracted broad consensus because none of the federal government’s enumerated powers included the authority to regulate religious activity. The Fourteenth Amendment extended that unqualified right as a shield against infringement by state governments.

This interpretation holds significant implications.First, Smith should be overruled as irreconcilable with the original understanding of the Free Exercise Clause. An unconditional right to exercise religion cannot be squared with Smith’s holding that a law is valid if it satisfies the bare-bones criteria of neutrality and general applicability. See 494 U.S. at 879. Second, an unqualified protection of religious exercise should be the constitutional baseline from which to assess any judicial standard replacing Smith.

Strict scrutiny looks different from that perspective: it allows the government to carry out its most essential purposes even when it imposes a substantial burden on the exercise of religion. That standard no doubt furnishes the most plausible modern solution for vindicating the Free Exercise Clause despite the manifold conflicts that arise in a society governed under today’s regulatory state. See also Bowen v. Roy, 476 U.S. 693, 732 (1986) (O’Connor, J., concurring in part and dissenting in part) (“The rise of the welfare state was not the fall of the Free Exercise Clause.”). But the historical baseline we describe suggests that strict scrutiny is a compromise with the Constitution’s pledge of religious freedom—and ought to be acknowledged as such. Far from granting religious people and institutions a gratuitous benefit, strict scrutiny gives the exercise of religion less protection than the Constitution was originally understood to guarantee.

Note: whether to revisit Employment Division v. Smith is specifically one of the questions on which cert was granted.

(Thanks to James Phillips, who is one of the attorneys on the brief, for the pointer.  Prominent originalist scholar John Eastman of Chapman University Law School and the Center for Constitutional Jurisprudence is also on the brief.)


Michael Morley: Article III and the History of Nationwide Injunctions
Michael Ramsey

Michael Morley (Florida State University - College of Law) has posted Article III and the History of Nationwide Injunctions: A Response to Professor Sohoni (Alabama Law Review, Vol. 72, 2020) (19 pages) on SSRN.  Here is the abstract: 

In a recent article in the Harvard Law Review entitled, “The Lost History of the ‘Universal’ Injunction” [Ed.: available here], Professor Mila Sohoni contends that Article III permits federal courts to issue nationwide injunctions because they have issued such orders since the early 1900s. She offers 15 main examples of federal cases from between 1894 and 1943 in which she contends that the court issued nationwide injunctions. These historical precedents, she argues, legitimize the continued constitutionality of nationwide injunctions today.

This Essay demonstrates that the Article III objection to nationwide injunctions survives Professor Sohoni's critique for three main reasons. First, the only case that "Lost History" discusses in which the Supreme Court expressly addressed the validity of nationwide injunctions, Perkins v. Lukens Steel Co., largely rejected them. Perkins' express consideration of such orders carries far greater weight than inferences drawn from a handful of other cases, many from lower courts, that do not consider potential Article III concerns.

Second, most of the orders on which "Lost History" focuses are not the type of nationwide injunctions at the heart of most modern debates over the issue. The term "nationwide injunction" is ambiguous, encompassing up to five fundamentally different type of orders that each raise distinct jurisdictional, rule-based, fairness-related, prudential, and structural concerns. The ongoing controversy concerning so-called nationwide injunctions involves a type of order that I call a "defendant-oriented injunction." A defendant-oriented injunction prohibits a governmental defendant from enforcing a challenged legal provision against anyone, anywhere in the nation, including third-party non-litigants in other jurisdictions.

Most of the orders that "Lost History" cites are not defendant-oriented injunctions. Instead, they have materially different characteristics and are properly classified as completely distinct types of nationwide injunctions. These orders do not establish that federal courts have a lengthy history of issuing broad nationwide or statewide defendant-oriented injunctions aimed at enforcing the rights of third-party non-litigants.

Finally, even treating all 15 orders as relevant examples, they prove very little. In most cases, the scope of the order was neither contested by the parties nor addressed by the Supreme Court. To the contrary, in several cases, the Government implicitly or explicitly consented to the requested relief on an interim basis, alleviating the need for the Court to consider their propriety. Perhaps more importantly for the examples involving constitutional challenges to state laws, most federal districts in the period had only one or two district judges, who adjudicated such matters as part of three-judge trial-court panels. Whether a district court granted a statewide defendant-oriented injunction was usually irrelevant as a practical matter, since any future constitutional challenges to that state law were virtually certain to be heard by the same judge. Thus, even if such orders were technically improper, it is entirely understandable under the circumstances that defendants would not have wasted time challenging them.

In short, the history of nationwide injunctions does little to establish the constitutionality of defendant-oriented injunctions. Particularly in light of Article III precedent as it has evolved over the decades since, the Article III objection to such orders remains compelling.


Tammy Gales & Lawrence M. Solan on Church of the Holy Trinity v. United States
Michael Ramsey

Tammy Gales (Hofstra University) & Lawrence M. Solan (Brooklyn Law School) have posted Revisiting a Classic Problem in Statutory Interpretation: Is a Minister a Laborer? (Georgia State University Law Review, Vol. 36, p. 491, 2020) (44 pages) on SSRN.  Here is the abstract:

This study presents a new analysis of an iconic United States Supreme Court case, Holy Trinity Church v. United States (1892). The question in Holy Trinity Church concerned whether a law making it illegal to pay the transportation of a person entering the U.S. under contract to perform “labor or service of any kind” applied to a wealthy Manhattan church that had paid to bring its new rector from England to New York. The Supreme Court unanimously ruled that the law did not apply to the church’s contract, relying first on the ordinary meaning of “labor” and second on the legislative history of the single construction “labor or service.”

Highlighting the use of corpus linguistic methods, this study tests the arguments presented by the Court and reveals new insights through an analysis of historic and contemporary reference corpora and a specialized corpus of U.S. statutes. The results demonstrate that the disjunctive phrase labor or service appeared to be a legal term of art with narrow interpretation that would exclude clergy, but around the time of Holy Trinity Church, slight variations on the phrase (e.g., pluralization, conjunction, and modification) applied to contexts with broader meaning. When examining “labor” as an independent term, those who labored were generally not clergy and the description of the activities of clergy was typically not described as labor, although examination evidenced instances of both. The findings demonstrate the importance of consulting corpora in the evaluation of statutory and ordinary meaning and considering the socio-historical contexts in which it occurs.

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