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37 posts from January 2021


Randy Kozel: Retheorizing Precedent
Michael Ramsey

Randy J. Kozel (Notre Dame Law School) has posted Retheorizing Precedent (Duke Law Journal, Vol. 70, No. 5, 2021) (32 pages) on SSRN.  Here is the abstract:

Does the doctrine of stare decisis support judicial attempts to retheorize dubious precedents by putting them on firmer footing? If it does, can retheorization provide a means for Chevron to endure as a staple of administrative law notwithstanding serious challenges to its established rationale?

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


An Interesting Impeachment Argument from Michael McConnell (and my Responses) [Updated with Professor McConnell's Reply]
Michael Ramsey

At Volokh Conspiracy, Michael McConnell (guest blogging): Impeaching Officials While They're in Office, but Trying Them After They Leave.  From the core of the argument:

Whether a former officer can be impeached is beside the point. Donald Trump was President of the United States at the time he was impeached by the House of Representatives. The impeachment was therefore unquestionably permissible (putting aside any disagreements over the nature of the charges).

Article I, Section 3, Clause 6, states: "The Senate shall have the sole Power to try all Impeachments." The key word is "all." This clause contains no reservation or limitation. It does not say "the Senate has power to try impeachments against sitting officers." Given that the impeachment of Mr. Trump was legitimate, the text makes clear that the Senate has power to try that impeachment.

Article II, Section 4, states: "The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors." This provision does appear applicable only to sitting officers. But it does not limit the power of the Senate to try, which comes from Article I, Section 3, Clause 6. It merely states that removal from office is mandatory upon conviction of any sitting officer. No lesser sanction will suffice.

I think this is a powerful argument, more persuasive than others that claim broader impeachment power.  I have two responses.

First, the post assumes the impeachment was completed when the House voted to approve the article of impeachment. But that does not appear to be correct as a matter of original meaning.  As discussed here and here, impeachment in its original sense meant the delivery of the articles of impeachment.  As I put it in the second linked post: 

[A]s argued by Andrew Hyman on this blog, and by Noah Feldman at Bloomberg (and elaborated by Keith Whittington at Volokh Conspiracy), historical understanding and practice strongly indicate that a President is not impeached (under the Constitution's original meaning) until the Articles of Impeachment are delivered to the Senate.  Impeachment, in this view, is not the act of voting on the articles, but rather the act of making an accusation to the entity having trial authority (in this case, the Senate).

From Professor Whittington's post:

When the House contemplated its first impeachment, of Senator William Blount in 1797, there was a fair amount of uncertainty about how it should do it. Legislators looked to the English Parliament to try to figure out how the process worked and did their best to follow along.

Notably, that meant passing a resolution in the House designating someone to walk over to the Senate and impeach Senator Blount. The Senate Journal records that a message had been received from the House to be delivered by Representative Samuel Sitgreaves, to wit:

Mr. President: I am commanded, in the name of the House of Representatives, and of all the people of the United States, to impeach William Blount, a Senator of the United States, of high crimes and misdemeanors; and to acquaint the Senate, that the House of Representatives will, in due time, exhibit particular articles against him, and make good the same.Mr. President: I am commanded, in the name of the House of Representatives, and of all the people of the United States, to impeach William Blount, a Senator of the United States, of high crimes and misdemeanors; and to acquaint the Senate, that the House of Representatives will, in due time, exhibit particular articles against him, and make good the same.

The House had commanded Sitgreaves to go to the Senate and impeach Blount. Once that was done, then the Senate could send notice to Blount that he had been impeached and could prepare for trial. The House would draft and exhibit in the Senate articles of impeachment later.

This was the form that the House used to impeach officers all through the nineteenth century. The form was the same when the House impeached judges, a justice, a cabinet member, and a president. In 1904, the Senate sergeant-at-arms announced the presence of a member of the House who

In obedience to the order of the House of Representatives we appear before you, and in the name of the House of Representatives and of all the people of the United States of America we do impeach Charles Swayne, Judge of the district court of the United States for the northern district of Florida, of high crimes and misdemeanors.

Professor Whittington goes on to note that the terminology changed in the 20th century, so that people began to speak of impeachment occurring upon the House's vote.  But the original meaning seems clearly to the contrary.  Thus in an originalist analysis, even if Professor McConnell is right about the Senate's trial power, that does not affect the outcome in the particular case, because President Trump was impeached, for constitutional purposes, after he left office.

Second, I don't find Professor McConnell's argument on the Senate's power is as conclusive as he thinks it is.  He says: "I have not seen any answer to this textual point from those who think the trial of Mr. Trump would be unconstitutional. They ignore ... the text of Article I, Section 3, Clause 6, which states that the Senate may try 'all' impeachments."  But I think there is a textual counterargument, which I and others have made: Article II, Section 4 defines the scope of the impeachment process (including the trial as well as the impeachment itself), and so qualifies Article 1, Section 3.  Philip Bobbitt makes this point in a recent post at Lawfare, Why the Senate Shouldn’t Hold a Late Impeachment Trial:

Article II, Section 4 provides the substantive standard of law that governs impeachment. It states that “[t]he President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other High Crimes and Misdemeanors.” 

Article I, Section 2 provides the procedural authority for impeachments. Clause 5 states that “the House of Representatives … shall have the sole Power of Impeachment.” Clause 6 states that “[t]he Senate shall have the sole Power to try all Impeachments. … And no Person shall be convicted without the Concurrence of two thirds of the Members present.” Clause 7 limits the penalties that can be levied as a consequence of conviction: “Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States” and qualifies this limitation by adding, “but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.”

There is no authority granted to Congress to impeach and convict persons who are not “civil officers of the United States.”

Third, Professor McConnell's approach seems attractive because it's limited to trials of ex-officers who are impeached while in office.  But I don't see any textual basis for this limitation.  Why would he think the House can't impeach a former officer?  It can only be because of Article II, Section 4 (limiting impeachments to current officers).  But if Article II, Section 4 limits the impeachment to current officers, it should also limit conviction to current officers, as it combines impeachment and conviction in the same clause of the same sentence.  Thus Professor McConnell's limited position is not actually textually tenable.  Inevitably, he would have to argue that Article II, Section 4 provides no limit on impeachment or conviction. Professor Bobbitt makes this counterargument as well:

The interpretation that persons are subject to impeachment and conviction even if they are not civil officers would greatly expand the Senate’s ability to prevent future office-holding. The argument for doing so depends on the claim that disqualification is an alternative, stand-alone penalty rather than one supplementary to removal. (Obviously a former officer who is no longer in office cannot be removed.) The paradigm case is one in which an official is impeached while in office but then tried by the Senate after he or she leaves. Nevertheless, under the “alternative penalty” rationale, once removal is irrelevant, any person who was once a civil officer might be impeached and convicted and by this means disqualified from any future office.

Professor McConnell is among the very best originalist scholars in the nation and I hesitate to disagree with him on anything, but ultimately I am not persuaded on this point.  I think either the impeachment/conviction power is defined by Article II, Section 4, or it is essentially unlimited (except as to the nature of the punishment).

UPDATE:  Professor McConnell responds to the first point at Volokh Conspiracy, here.

ANDREW HYMAN adds: Even in the unlikely event that Professor McConnell is right about impeachment starting before the articles were delivered to the Senate, clearly the impeachment was not completed before delivering the articles to the Senate.  Impeachment is an extended process that includes both accusation and prosecution, and McConnell has not shown, nor can show, that the House has power to complete an impeachment merely because it had power to start the impeachment.  See my earlier post here.  It would be like saying that President Trump now has power to complete the border wall because he had power to start the border wall.  


Enjoining the 100-Day Deportation Moratorium
Michael Ramsey

Via Josh Blackman at Volokh Conspiracy, SDTX Enjoins Biden Administration's 100-Day Moratorium on Deportations Based on DACA Decision.  The temporary injunction relies on two grounds: (1)  that the policy violates 8 U.S.C. § 1231(a)(1)(A); and (2) that it is arbitrary and capricious under the Administrative Procedure Act.  Professor Blackman quotes this section of the APA analysis (his emphasis): 

Here, the January 20 Memorandum not only fails to consider potential policies more limited in scope and time, but it also fails to provide any concrete, reasonable justification for a 100-day pause on deportations. The January 20 Memorandum states that the 100-day pause is required to assess immigration policies because of the "unique circumstances" present with respect to immigration, including "significant operational challenges at the southwest border as [the United States] is confronting the most serious global public health crisis in a century." (Dkt. No. 2-2 at 2). DHS specifically cites to its apparent (1) need for a comprehensive review of enforcement policies, (2) need for interim civil enforcement guidelines, and (3) "limited resources" that would necessitate a pause in executing removal orders. (Id. at 2–5). Additionally, the January 20 Memorandum states that the 100-day pause in deportations is necessary to "(1) provide sufficient staff and resources to enhance border security and conduct immigration and asylum processing at the southwest border fairly and efficiently; and (2) comply with COVID-19 protocols to protect the health and safety of DHS personnel and those members of the public with whom DHS personnel interact." (Id. at 3). The January 20 Memorandum also provides that DHS "must ensure that [the agency's] removal resources are directed to the Department's highest enforcement priorities." (Id.). DHS, however, never explains how the pause in removals helps accomplish these goals. It remains unknown why a 100-day pause is needed given the allegedly "unique circumstances" to which the January 20 Memorandum alludes. Indeed, despite such unique circumstances, DHS did not state or explain why 100 days specifically is needed to accomplish these goals. The silence of the January 20 Memorandum on these questions indicates that the terms provided for in the Memorandum were not a result of "reasoned decision-making." Allentown Mack Sales, 522 U.S. at 374, 118 S.Ct. at 826.

This cannot be right.  I'm not an APA scholar, so I have no opinion what the APA requires.  But if this is what the APA requires, it seems unconstitutional.  It's one thing for the APA to regulate executive agency procedures when Congress delegates rulemaking authority (in effect, lawmaking authority) to the agency.  But this is pure executive power being exercised here.  The President is deciding how best to execute the law in terms of enforcement.  (I don't think I agree with the policy, but that's beside the point.)  The President is the constitutional decisionmaker here (exercising "the executive Power" of Article II, Section 1), and his decision should not be subject to what is in effect policy second-guessing by the judicial branch (Professor Blackman calls it "lower courts ... Monday-morning-quarterbacking every change in executive-branch policy").  Perhaps its permissible to have some very low level of judicial review to assure the President isn't making decisions by flipping a coin.  But the standard adopted here would allow a court to overturn almost any executive policy decision on the ground that there could (in the court's view) be a better way of doing it.

(I'm not expressing any opinion here on the alternative ground for the order.)


Further Thoughts on Impeaching Ex-Presidents
Michael Ramsey

Without trying to be comprehensive, here are more discussions of the issue, which has become of much more than just academic interest.

At the National Constitution Center, Jeffrey Rosen moderated a discussion with Judge Michael Luttig and Keith Whittington.  Professor Whittington also had this op-ed in the Wall Street Journal: Yes, the Senate Can Try Trump -- Impeachment for former officials was the norm at the time of the founding.  And, via Ilya Somin at Volokh Conspiracy, here is a statement by Constitutional Law Scholars on Impeaching Former Officers (signed by some notable originalist scholars including Steven Calabresi and Michael Stokes Paulsen), concluding that such trials are permissible.

On the other side, in National Review, Robert Delahunty (St. Thomas) and John Yoo (Berkeley): The Originalist Case against a Trump Impeachment Trial.  This part is similar to what I've argued: 

Article II of the Constitution declares that “the President, Vice President, and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” Impeaching a former official flatly contradicts this wording. After January 20, Trump no longer qualifies as an “Officer of the United States,” and the sentence of removal cannot apply to someone who is no longer in office. 


Supporters of Trump’s impeachment must make heavy inferences from ... Article I, Section 3’s “judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States.” Trump critics argue that by including future disqualification, the Founders intended impeachment to extend to former officials. But it is not clear from this text whether disqualification must accompany removal (notice the “and” before “disqualification”), or whether it constitutes an independent and separate penalty.

Trump’s critics must rely on a power of impeachment outside the pure confines of the constitutional text. They must argue that when Article II prescribes removal as punishment for “the President, Vice President, and all civil Officers of the United States,” it only describes the standard that applies, and the punishments available, to existing officers — but not former ones. ...

Any originalist should recognize the faults of this non-textual approach. It contains within itself no limiting principle as to time or targets or terms. If Article II only describes the punishments due to current officers, but does not define other targets of impeachment, then impeachment can include all former executive officers and judges. Congress could impeach Jimmy Carter for the failed Iran hostage rescue operation or Barack Obama for refusing to enforce the immigration laws. It could impeach any former cabinet officer too; it could charge Hillary Clinton for failure to safeguard classified information or James Comey for provoking the Russia special counsel investigation.

Even more worrisome, this theory means that Congress need not limit its scope to federal officials, either present or past. Impeachment could target private citizens who had never held public office — as had occurred in Great Britain in the centuries before the Constitution — or state and local officials. If we adopted British practice before the ratification of the Constitution, Congress could even impose punishments beyond removal or disqualification too, so long as the defendants were not current office holders. ...

I have one further thought.  A centerpiece of the pro-impeachment side is the supposed oddity of allowing disqualification of sitting officers but not allowing disqualification of former officers.  I've given some responses to this already, but I think there's a further one.  

I assume that a sitting officer can be impeached, convicted and removed from office for a high crime of misdemeanor which that officer committed in a previous office.  (That is, hypothetically, President Biden can be impeached for something he did as Vice President).  Assuming that's right (and I see no immediate reason why it isn't), then there's an obvious reason to disqualify an impeached sitting officer from a future office.  Having gone through impeachment, trial and conviction once, it would be wasteful and duplicative for Congress to go through the process again, should the officer gain a new office.  But as to a former officer, with no imperative to remove the officer from a current office, impeachment can be invoked when and if the officer gains a new office.  There wouldn't be a need for disqualification to avoid a duplicative process (and impeachment would be avoided entirely if the former officer never gained a new office).

Of course, there are policy arguments for the other side as well.  Anticipatory disqualification might be a good idea to keep a former misbehaving officer from seeking a new office.  And disqualification of a former officer might make a statement about the wrongfulness of the officer's conduct.  My point, though, is that it's not absurd to treat sitting officers and former officers differently with respect to disqualification.  Thus we shouldn't strain the text to avoid that result.


Section 3 of the 14th Amendment Doesn’t Apply to the Presidency
David Weisberg

There’s lots of controversy (seeherehere, and here) as to whether Section 3 of the 14th Amendment bars anyone from serving as president.  I think the most reasonable answer is ‘no’. 

Section 3 of the 14th Amendment provides, in schema, that certain persons (whom I will call “disloyal persons”) are disabled from holding certain offices (which I will call “protected offices”) unless Congress, by a two-thirds vote in each House, removes the disability.  Disloyal persons are those who, upon entering certain offices (which are not identical to the protected offices), took an oath to support the U.S. Constitution and thereafter engaged in insurrection against, or aided enemies of, the U.S.  The protected offices are: “Senator or Representative in Congress, or elector of President and Vice- President, or…any office, civil or military, under the United States, or under any State[.]”

Surely the most striking feature of Section 3 is that the list of protected offices does not include president or vice-president.  The list does include “any office, civil or military, under the United States,” and there’s been debate as to whether that phrase encompasses the presidency and the vice-presidency.  But it seems blindingly obvious that, if the presidency and vice-presidency were meant to be included, the list of protected offices would begin with “President or Vice-President, or Senator or…etc.”  I think I can explain why those two highest offices were intentionally omitted. 

In 1868 (when the amendment was ratified), formerly rebellious States were being readmitted into the Union, and there was probably great concern that those States might send disloyal persons to represent them in Washington, D.C.  Section 3 provides a check or brake on the ability of voters in formerly rebellious States to elect a disloyal person as a “Senator or Representative in Congress, or elector of President or Vice-President”—all of which are federal offices filled by elections in a single State

Electing a president (or vice-president), however, is different.  Before and after the Civil War, States committed to the Union had larger populations and more electoral-college votes than States that seceded.  Even if a disloyal person were elected as president after the war, that election would reflect the choice of citizens in States with a majority of the electoral-college vote.  Thus, in a national election, the need for a check on Confederate sentiment would have vanished.  Common sense would have confirmed that any disloyal person who managed to be elected president would have succeeded despite, rather than because of, past disloyalty.  I think that is why Section 3, both on its face and after careful analysis, does not bar anyone, including a disloyal person, from serving as president or vice-president.

Gregory Sisk: Recovering the Tort Remedy for Federal Official Wrongdoing
Michael Ramsey

Gregory C. Sisk (University of St. Thomas School of Law (Minnesota)) has posted Recovering the Tort Remedy for Federal Official Wrongdoing (Notre Dame Law Review, forthcoming 2021) (57 pages) on SSRN.  Here is the abstract: 

As the Supreme Court weakens the Bivens constitutional tort cause of action and federal officers avoid liability for unlawful behavior through qualified immunity, we should recollect the merit of the common-law tort remedy for holding the federal government accountable for official wrongdoing. For more than a century after ratification of the Constitution, federal officers who trespassed on the rights of American citizens could be held personally liable under common-law tort theories, but then routinely were indemnified by the government.

The modern Federal Tort Claims Act (FTCA) roughly replicates the original regime for official wrongdoing by imposing liability directly on the government. Through modest revisions to the FTCA, most claims for abuse of federal government power can be adequately addressed through a common-law tort cause of action. The FTCA should be reformed to put claims for intentional wrongdoing on a more secure footing.

Constitutional principles remain central to adjudication of tort claims against the federal government. First, ordinary tort elements and defenses, such as probable cause in false arrest cases and justified use of force in assault and battery cases, may be refuted by asserting constitutional-equivalent violations. Second, discretionary policy immunity under the FTCA is precluded when constitutional limits are transgressed, as no federal officer has discretion to bypass constitutional requirements. And, because the doctrine of qualified immunity is misplaced in a tort regime, the commands of the Constitution should be directly enforced, without the diluting appraisal of whether the constitutional directive was clearly established in prior court precedent.

Agreed.  I understand why conservative/originalist judges and commentators don't like Bivens, but the original constitutional design of individual rights depended on a common law tort system that could be invoked against federal officers who acted unconstitutionally.  Congress can codify that system but it can't (or rather, shouldn't be able to) displace parts of it by precluding remedies for constitutional violations.  See my post here: Don't Fear Bivens.


Early Delegations of Federal Powers
John Vlahoplus

I have posted Early Delegations of Federal Powers, forthcoming in The George Washington Law Review Arguendo, on SSRN here.  It expands on the work of Professors Posner, Vermeule, Mortenson and Bagley critiquing historical and theoretical arguments for a nondelegation doctrine (debated in posts here, here and here, among others).  The Article demonstrates that early congressional statutes delegated power to impose federal rights, obligations, and penalties to a broad group of actors including private experts acting alone, private experts acting under judicial or executive oversight, and non-federal authorities in addition to federal executive officials.  Statutory guidance for exercising the delegated powers was nonexistent, aspirational, or limited to general restrictions.  The delegations included areas demanding expertise or flexible decision-making, applied to private rights and obligations, and required the delegate to balance risks against economic costs. 

A 1790 statute, for example, protected the health and safety of sailors on foreign voyages.  It specified minimum requirements for the types, amounts, and storage of food and water for every sailor.  It also provided that each American ship of a certain size and crew

shall be provided with a chest of medicines, put up by some apothecary of known reputation, and accompanied by directions for administering the same; and the said medicines shall be examined by the same or some other apothecary, once at least in every year, and supplied with fresh medicines in the place of such as shall have been used or spoiled.  

Food, water, and medicines have costs, of course.  Congress could have balanced the costs of medicines to shipowners against the risks to sailors of illness or death at sea.  It could have specified minimum required medicines and their proper administration just as it did minimum provisions and their storage.  But Congress did not.  Instead, it delegated to unelected medical experts the power to evaluate risks and benefits and to impose obligations on private American shipowners without providing any guidance on the types of medicines to include or their administration.

Congress enacted these statutes knowing that it could later repeal them while recognizing that repeal might be difficult in practice.  Thomas Jefferson argued in 1789 that the earth belongs to the living, that repeals are generally difficult and impractical, and therefore that all constitutions and statutes should sunset.  Nonetheless the Founders included only one sunset in the Constitution, limiting appropriations in support of armies to two years, the term of membership in the House of Representatives.

The use of experts and of administrative law are well within the Constitution’s constraints on the federal government.  Those who oppose this exercise of federal power may always do so in Congress or through living constitutional arguments.  But they cannot rely on history to assert that the Constitution includes a nondelegation doctrine.

A Response to Andrew Hyman on Section 3 of the Fourteenth Amendment [Updated with a Comment from Andrew Hyman]
Seth Barrett Tillman & Josh Blackman

A few points in response to Andrew Hyman’s recent post Section Three of the Fourteenth Amendment Does Apply to the Presidency. Hyman wrote: "Professors Josh Blackman and Seth Barrett Tillman say, first, that Section Three does not jurisdictionally apply to former Presidents of the United States, and say, second, that the Senate cannot disqualify anyone at all from holding the presidency." 

First, in our recent co-authored post on Volokh Conspiracy, we did not state that Section 3’s jurisdictional element applies to Presidents or former Presidents. And we did not state that it does not apply to Presidents or former Presidents. Instead, we took the limited position that there is “good reason” to conclude that it does not apply—a position which we supported with evidence. Furthermore, we argued that the burden of production and persuasion lies with those making an application or seeking to apply Section 3. It is they who have to make a case that Section 3’s generic “officer of the United States”-language applies to the presidency. 

Second, in regard to the scope of a Section 3 disqualification—i.e., whether or not a defendant who is disqualified under Section 3 can hold the presidency—we took no position at all. 

Third, Hyman wrote: “Professors Blackman and Tillman point to the Removal Clause as evidence that the word ‘officer’ does not describe the President ….” That is entirely incorrect too. Our recent Volokh Conspiracy post made the point that the President is not an “officer of the United States.” To support that view, Blackman and I pointed to many sources—constitutional text, Supreme Court opinions, memoranda from the Executive Branch, etc.—indicating that positions characterized as “officers of the United States” are appointed exclusively pursuant to Article II, Section 2 procedures. To substantiate the opposite point, Hyman quotes Professor Magliocca—but Magliocca’s discussion relates to “office … under the United States”-language in Section 3’s disqualification element, and not to “officer of the United States”-language in Section 3’s jurisdictional element. The two Section-3 elements use different language in the very same sentence, which is some indication that these textual distinctions were chosen with care and carried different meanings as a matter of original public meaning. Hyman may think it proper to conflate “officer,” and “officer of the United States,” and “office … under the United States,” but any such position is at odds with the text. He is welcomed to that position, but his ascribing that position to Blackman and me is error.

(Editor's note:  This post has been updated to reflect that it was co-authored by Josh Blackman).

COMMENT FROM ANDREW HYMAN: Professors Blackman and Tillman, in a second blog post to which I linked, wrote: “The Senate has no power to disqualify a defendant from holding elected federal positions, such as the presidency.”   So, like I asserted, they said that the Senate cannot disqualify anyone at all from holding the presidency. 

I also asserted that they said Section Three of the Fourteenth Amendment does not jurisdictionally apply to Presidents or former Presidents  of the United States.  Indeed, they contend (1) that they are unpersuaded Section Three applies, (2) that they presented evidence it does not apply, and (3) that others have the burden to present evidence to the contrary.  So, they are not exactly neutral in this matter, though perhaps I could have  explained in more detail that they were making a suggestion rather than taking a firm position.  

Of course, I realize that one of their two blog posts relates primarily to disqualification under Section 3 of the 14th Amendment, while the other relates primarily to disqualification under the impeachment clause of Art. I, Sec. 3.  But these are very closely related (indeed overlapping) subjects, which is why I bundled them into one blog post of mine.  As for their last point above, I’ll just refer people to what I already wrote (in which I used the word “officer” as shorthand for officer of/under the United States).


John McGinnis & Michael Rappaport: Minimizing the Construction Zone
Michael Ramsey

John O. McGinnis (Northwestern University - Pritzker School of Law) and Michael B. Rappaport (University of San Diego School of Law) have posted The Power of Interpretation: Minimizing the Construction Zone (Notre Dame Law Review, forthcoming) (55 pages) on SSRN.  Here is the abstract:

One of the most important conceptual innovations within modern originalism is the distinction between a zone of interpretation and a zone of construction. When constitutional provisions have a determinate meaning, decisions finding that meaning occur within the interpretation zone. But when the original meaning of a constitutional provision is indeterminate, decisions are based on something other than the original meaning and occur within the construction zone.

This Article represents the first sustained challenge to the importance of the distinction. It argues that a variety of techniques enhance the power of interpretation to resolve uncertainties and thus greatly reduce the size of the construction zone. These techniques are principally supplied by the language of the law in which the Constitution is written. The language of the law’s technical legal terms and legal interpretative rules provide a precision that ordinary language does not. When these techniques are correctly employed, the construction zone ends up being small. Under a small construction zone, issues that cannot be resolved based on the original meaning – principally the application of vague terms – rarely arise and, when they do, they involve only questions of secondary importance.

We make our case in three ways. We first offer a conceptual framework for resolving indeterminacy. We show how ambiguity can always be resolved by choosing the better attested meeting—an interpretive direction that existed at the Founding. We also show that many terms that seem vague are in fact ambiguities of related meaning, as for instance when the term property may mean either real property or real property and personal property. These ambiguities can, like other ambiguities, be resolved by following the better attested meaning. We then consider constitutional issues prominently proffered as examples of vagueness or other indeterminacies and show how they can be resolved under our framework. We finally show that modern originalist scholarship interpreting important constitutional provisions makes implicit use of our techniques to find determinate meanings rather than the indeterminacy requiring construction.

Via Larry Solum at Legal Theory Blog, where it is "Download of the Week."  Professor Solum adds: "Highly recommended.  There is much in this essay with which I agree and some things that I believe are deeply wrong.  Download it while it's hot!"


The Chief Justice Can (but Need Not) Preside at the Trial of an Ex-President
Michael Ramsey

Rumor has it that Chief Justice Roberts has said privately he will not preside at the Senate trial of former President Trump (via Powerline).  As a constitutional matter, that appears to me to be allowed but not required.  Article I, Section 3, para. 6 says:

When the President of the United States is tried, the Chief Justice shall preside...

Donald Trump is not the President of the United States.  So the Chief Justice is not required to preside.  That's simple.

Article I, Section 3, para. 4 says:

The Vice President shall be President of the Senate ...

The only limitation on this power is the rule from paragraph 6 quoted above.  Thus in all impeachment trials other than an impeachment of the President, the Vice President presides.  No provision requires recusal  for conflicts of interest -- so even though in the current circumstance the Vice President has a substantial conflict of interest, she is entitled to preside.  (Aside: Some scholars have argued that this creates an oddity -- even an "absurdity" --  that the Vice President could preside over the Vice President's own impeachment trial.  I say: yep, the Constitution creates some oddities sometimes; the Framers didn't always think through all the hypotheticals.)

But Article I, Section 3 also contemplates that the Vice President may not be available to preside (for whatever reason) and provides an alternative: 

The Senate shall chuse their other Officers, and also a President pro tempore in the Absence of the Vice President ...

So if the current Vice President decides not to preside (for conflict of interest reasons or otherwise), the Senate trial may proceed with another person designated by the Senate to preside "pro tempore" (meaning "for the time being").

By tradition, the presiding officer pro tempore has been a member of the Senate.  But I don't see any constitutional limitation to that effect.  As I read the text, the Senate could choose the Chief Justice to act as President pro tempore for purposes of the impeachment trial.  (Senate rules may provide otherwise, but I don't see a constitutional objection.)

Of course, the Chief Justice may decline the invitation because (as stated at the outset), he isn't required to preside.

(And also, I agree with Judge Luttig and co-bloggers Andrew Hyman and David Weisberg that the Senate doesn't have power to try an ex-President who is a private citizen.  But that's a different question.)