« January 2021 | Main | March 2021 »

32 posts from February 2021

02/10/2021

Josh Blackman & Seth Barrett Tillman on the Impeachment Disqualification Clause
Michael Ramsey

At Volokh Conspiracy, Josh Blackman & Seth Barrett Tillman: New Evidence and Arguments About the Scope of the Impeachment Disqualification Clause: A Response to the House of Representatives' Managers' Trial Memorandum.  From the introduction:

This post will consider the [House Managers'] trial memorandum's arguments concerning the scope of the Impeachment Disqualification Clause. U.S. Const. Article I, Section 7, Clause 3. The clause states: "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."

...

For more than a decade, Tillman has written that the phrase "Office . . . under the United States" reaches only appointed federal positions. In 2014, well before President Trump announced that he would run for the presidency, Tillman published a full-length article opining on the scope of the Impeachment Disqualification Clause, which uses the phrase "Office . . . under the United States." And for the past four years, we have filed multiple amicus briefs and published several articles contending that the phrase "Office . . . under the United States" does not apply to the presidency, an elected federal official. In 2017, we addressed a frequently asked question about our taxonomy:

Under the [impeachment] disqualification clause, can Congress prospectively bar an impeached officer from being elected to Congress or to the presidency?

... [The Impeachment Disqualification Clause] grants Congress the power to prevent a convicted party from being appointed to a federal position, but does nothing to prevent a convicted party from being elected to the House, Senate or the presidency.

...

We also think that our position is the one that is normatively sound. The impeachment process is a political process that allows Congress to cleanse the government between elections: when there is no time to wait for an appeal to the people. But the impeachment process is a political process. The people doing the impeaching may not only be wrong, but they also might be the wrongdoers. Our position in regard to the scope of disqualification allows the voters, not Congress, to have the last word. If the voters return a disqualified defendant to elective office it is because where in doubt, it is the voters, not their agents in Congress, who should have the last word.

And from further along:

Our position was also expressed during the 1799 Senate impeachment trial proceedings of Senator William Blount. He was the first officeholder impeached under the Constitution. During the Senate trial, both Blount's counsel and a House Manager articulated their views about the scope of the Impeachment Disqualification Clause. The views they articulated are consistent with the view we have advanced. 

Blount was represented by Alexander J. Dallas. Dallas is well known in today's legal community for serving as the first Reporter of Decisions of the United States Supreme Court. He also held cabinet positions and high state office in Pennsylvania. Dallas explained that the Impeachment Disqualification Clause serves as "in effect, [as] a check or limitation to the general power of the Executive." How? The Senate, by voting to disqualify an officeholder, "declar[es] that the delinquent officer, shall be removed, and that he shall never be re-appointed." Dallas's understanding of the Impeachment Disqualification Clause's design was limited: the Senate had the power to restrict the "attributes and exercises of Executive Authority" that includes the power "to appoint, to re-appoint, or to abstain from re-appointing." 

Later in the trial, Dallas reaffirmed his position. He said, "it is manifest, that by the power of [i]mpeachment, the people did not mean to guard against themselves, but against their agents; they did not mean to exclude themselves from the right of re-appointing, or pardoning; but to restrain the Executive Magistrate from doing either, with respect to officers, whose offices were held independent of popular choice." Here too, Dallas's position directly supports the view we have advanced. The Impeachment Disqualification Clause was not designed to serve as a "guard against" the People who use "popular choice" to elect federal officials. Rather, this provision would serve to "guard against" the President's undermining a House impeachment and Senate removal. Consider a situation where a defendant is impeached, tried, convicted, removed, and disqualified. Then, the President re-appoints that person to another appointed position, or even to the same position he previously held. This reappointment would undermine the House's and Senate's power in the impeachment context. In other words, the Impeachment Disqualification Clause prevents the President from re-appointing the disqualified defendant to an office "held independent of popular choice." ...

02/09/2021

French Tribunal Apparently Finds Paris Climate Agreement to Be Binding
Michael Ramsey

According to this CBS report: 

Four environmental groups are crying victory after France was found guilty of failing to meet climate change goals it committed to in a historic accord signed in and named after its own capital city. The Administrative Tribunal in Paris ruled Wednesday that France had fallen short of its promise to reduce greenhouse gases under commitments made in the 2015 Paris Agreement, and was "responsible for ecological damage."

While the court declared the government guilty of inaction, it rejected a claim for damages by the four NGOs that brought the suit, ordering the government to pay just one symbolic euro to them instead. The tribunal also said it would decide within two months whether to recommend any measures for the government to resolve its failure to meet its own commitments.

I'm not sure of the basis or implications of this ruling, as I haven't seen the actual judgment (and can't read much French anyway), and I have only a superficial understanding of French law.  But it sounds as if the Tribunal found (or assumed) that the Paris Agreement imposes binding commitments on its member nations.

That's important because the position of the Obama Administration was that the Agreement was nonbinding in its material terms and thus did not require the advice and consent of the Senate.  (I assume this is the Biden Administration's position in rejoining the Agreement, though I'm not sure if it's been stated officially.)  My view -- as noted in this post and at greater length in this article -- is that the Obama Administration's argument is correct in its view of the Constitution (that is, that nonbinding agreements do not require Senate approval) but possibly wrong in its description of the Paris Agreement as nonbinding.

Assuming the French Tribunal's decision means what it appears to mean, it's important evidence that other signatories of the Paris Agreement regard the Agreement as having material binding terms.  It's not conclusive (because the Tribunal might be wrong about the nature of the Agreement) but it's further support for the view that the Agreement needs Senate approval.

02/08/2021

Mitchell Berman & Guha Krishnamurthi: Bostock was Bogus
MIchael Ramsey

Mitchell N. Berman (University of Pennsylvania Carey Law School) & Guha Krishnamurthi (South Texas College of Law Houston) have posted Bostock was Bogus: Textualism, Pluralism, and Title VII (28 pages) on SSRN.  Here is the abstract:

In Bostock v. Clayton County, one of the blockbuster cases from its 2019 Term, the Supreme Court held that federal antidiscrimination law prohibits employment discrimination on grounds of sexual orientation and gender identity. Unsurprisingly, the result won wide acclaim in the mainstream legal and popular media. Results aside, however, the reaction to Justice Neil Gorsuch’s majority opinion, which purported to ground the outcome in a textualist approach to statutory interpretation, was more mixed. The great majority of commentators, both liberal and conservative, praised Gorsuch for what they deemed a careful and sophisticated—even “magnificent” and “exemplary”—application of textualist principles, while a handful of critics, all conservative, agreed with the dissenters that textualism could not deliver the outcome that the decision reached.

This Essay shows that conservative critics of the majority’s reasoning were correct—up to a point. Specifically, it argues that Title VII’s ban on discrimination “because of” an employee’s “sex” does not cover discrimination because of their sexual orientation as a matter of “plain” or “ordinary” meaning. Further, it demonstrates that Gorsuch’s effort to establish that result as a matter of “legal” meaning wholly fails because it depends upon a fatally flawed application of the “but-for” test for causation, one that flouts bedrock principles of counterfactual reasoning. It follows that if a textualist approach to statutory interpretation is correct or warranted, then Bostock was wrongly decided. However, if Bostock was rightly decided, then it must follow that textualism is wrong or misguided. This Essay endorses the latter possibility, explaining that the dominant American approach to statutory interpretation is neither textualist nor purposivist but pluralist. It concludes by drawing powerful but previously unnoticed support for pluralism from Justice Samuel Alito’s principal dissent.

02/07/2021

The Viability Standard for Abortion Became a Matter of Pragmatic Concern Long After 1868
Andrew Hyman

Ed Whelan wrote a blog post last month titled Supreme Court Should Grant Review in Dobbs v. Jackson Women’s Health Organization.  In the course of his post, he observes:

Laws like Mississippi’s ban on abortions after 15 weeks of gestational age (with exceptions for medical emergencies and instances of severe fetal abnormality) have broad public support and — for those who think it meaningful to look to the laws of foreign countries — are similar to the gestational limit of 14 weeks or earlier that France, Italy, Germany, Spain, Norway, Switzerland, and lots of other European countries have.

He hopes the U.S. Supreme Court hears the case, and, for whatever it’s worth, I agree.  ScotusBlog has the briefs and case history. Let's assume for the sake of argument that the U.S. Supreme Court has legitimate power to resolve all controversies arising in the United States involving “liberty,” broadly construed.  To be sure, I do not believe this assumption is credible or reasonable, because there is much more to the Fourteenth Amendment than that one word in isolation, but let's take this assumption for granted. Under this assumption, does constitutional originalism have anything to say about the viability standard for abortion?  Yes, it does.

As you can see from the opinions in Roe v. Wade, then-Justice Rehnquist pointed out in his dissent that in almost all states abortion was illegal when the Fourteenth Amendment was adopted in 1868.  The majority opinion by Justice Blackmun acknowledged the relevance of that history, and rebutted Rehnquist’s point in an ostensibly originalist fashion: “throughout the major portion of the 19th century prevailing legal abortion practices were far freer than they are today....”  But Blackmun left out (1) that the major portion he was referring to was over and done with by 1868; and (2) on the day after Roe, the prevailing legal abortion practices became far freer than they had been during any portion of the nineteenth century.  The viability standard that the Roe Court adopted does not seem to have appeared anywhere in abortion law of the nineteenth century, and that is the standard now being challenged in the Dobbs case. 

According to an article last year by Elizabeth Romanis in the Journal of Law and the Biosciences, "With the revelation of a design of a neonatal incubator at the World Exposition in 1896, viability became an increasingly important indicator as a matter of medical ‘pragmatic concern’ in the context of prenatal care."  The knowledge that an unborn child (or fetus) may be born too prematurely to survive and thrive is as old as humanity itself, but that point of viability was basically static until Dr. Martin Couney (born in 1869) developed the first neonatal intensive care unit, which he displayed at the World Exposition in Berlin in 1896.  When the point of viability started moving circa 1896, its movement became very relevant for providing life-saving neonatal care, and it was later (in the twentieth century) that the viability standard was employed in the abortion context.  During the nineteenth century, the then-static point of viability was known, but no jurisdiction nor medical organization nor textbook had ever claimed it was relevant to the question whether abortion should be performed, as far as I know.  I disagree with Elizabeth Romanis’s argument for an abortion right regardless of gestational age, but I entirely agree with her that fetal viability is not a legitimate aspect of the Fourteenth Amendment.

In 1973, Justice Blackmun sought to give the viability standard an illusion of age, when he said, “Most Greek thinkers, on the other hand, commended abortion, at least prior to viability.”  However, as Andrew Adams wrote in 2004, Blackmun was attempting to “misrepresent Aristotle’s views” in order to support his own abortion agenda, and the Ancient Greeks by and large did not support abortion nearly so late as the point of viability.

Blackmun’s opinion for the U.S. Supreme Court revolutionized abortion law:

With respect to the State's important and legitimate interest in potential life, the "compelling" point is at viability. This is so because the fetus then presumably has the capability of meaningful life outside the mother's womb. State regulation protective of fetal life after viability thus has both logical and biological justifications.

The Roe opinion is undoubtedly correct that "state regulation protective of fetal life after viability ... has both logical and biological justifications," but so does state regulation protective of fetal life for some time before viability.   As of 1868, when the concept of fetal viability was already widely recognized, it was universally rejected as a legal standard, and it was not a pragmatic concern in the abortion context.

Fortunately, the power of women is far more advanced in 2021 than it was in 1868.  That fact continues to help both women and men to combat sexism through the democratic process, but societal changes since 1868 do not justify either exaggerating or diminishing what was meant by the Fourteenth Amendment in 1868.  From day one, that Amendment coexisted with workable state and territorial laws that paid less attention to how strong a little human being is, and more attention to her markers of life.  That historical context substantially removes any perceived ambiguity in the constitutional text regarding this issue; this is because of the simple presumption that states would be unlikely to simultaneously do one thing pursuant to statutes and the opposite pursuant to a constitutional amendment, and then continue following the statutes instead of the constitutional amendment.

Carl Esbeck on Establishment Clause Originalism
Michael Ramsey

Carl H. Esbeck (University of Missouri School of Law) has posted The Establishment Clause: Its Original Public Meaning and What We Can Learn from the Plain Text (22 Federalist Society Review 26 (2021)) (30 pages) on SSRN.  Here is the abstract:

Modern times in church-state relations began in 1947 with the Supreme Court’s decision in Everson v. Board of Education. The justices in both the majority and dissent said they were interpreting the Establishment Clause based on the intent of the founding generation. However, rather than looking to Congress’s lawmaking in the summer of 1789 that led to the First Amendment, the justices relied on the Virginia disestablishment from four years prior, as well as the efforts of just two statesmen, James Madison and Thomas Jefferson.

For the next half century, the High Court’s search was for events and prominent actors reflecting original intent. This is now considered Old Originalism. Its failing is that lawmaking is a collective task, the work of many individuals with multiple intents. Jurisprudential conservatives have urged an interpretation of the U.S. Constitution that is faithful to its time of inception. They increasingly look to New Originalism. This is an interpretive principle that adheres to the ordinary meaning of the text when adopted.

Seemingly Everson and its progeny were asking the wrong question (Old Originalism) about the wrong event (Virginia). The First Amendment is from a different time (1789-90) and lawmaking body (Congress and ratifying states). James Madison is the one common denominator, but his purposes and power to successfully shape the law emerging from these events were altogether different in the two instances.

As the First Congress assembled in New York City in April 1789, Madison still did not concede that a bill of rights was needed to thwart abuses by the new federal government. Yet he saw its usefulness “to limit and qualify the powers of the Government, by excepting out of the grant of power those cases in which the Government ought not to act, or to act only in a particular mode.”

New Originalism looks at a narrower slice of the historical record, maintaining a laser-like focus on the September 1789 meaning of the final words of the Establishment Clause. Still, this interpretative theory requires some knowledge of a wider context to understand what the First Federal Congress was trying to do in settling on this text. Stated a little differently, the authors of a law choose their words to fit the task. How did those in control at the First Congress conceive of their task?

Answering this question requires first going back and briefly exploring the task of the delegates to the 1787 Constitutional Convention, which is the topic of Part I. Then Part II takes up the task of the First Congress in composing and sending amendments to the states. From the start Congress’s task was made easier because the purpose was not to formulate a comprehensive list of unalienable or natural rights. The effort was the far more modest, and hence achievable, task of agreeing on what powers were not vested in the new government by the 1787 Constitution. Thus, the amendments would be stating negatives, that is, identifying what the federal government had no power to do. We look at some of the day-to-day debates in the House and Senate concerning the religious establishment question, not with the aim of determining the original intent of the framers but with the aim of getting insight into the meaning of the words they chose to fit the task.

Part III then hazards what we have learned concerning the original public meaning of the First Amendment text “respecting an establishment of religion.” Finally, no interpretive rule is required when the text alone is definitive. Thus, Part IV turns to consider what we can know from the grammar and plain text of the Religion Clauses. Whether one is an originalist or not, such a textual investigation allows us to put to bed some longstanding myths, such as the claim that the two clauses are in tension and sometimes conflict.

02/06/2021

John McGinnis on Presidents Changing Positions in Supreme Court Cases
Michael Ramsey

At Law & Liberty, John McGinnis: Should a New President Change Old SCOTUS Positions? From the introduction:

The Biden administration has inherited a variety of legal positions from its predecessor. For instance, the Trump administration argued to the Supreme Court that much of the current Affordable Care Act is unconstitutional because it can no longer be classified as a tax now that flouting the individual mandate to buy insurance has no penalty.

Traditionally, a new Solicitor General’s office is reluctant to make changes to such positions. A debate has arisen, however, about whether the Biden administration should change its positions before the Supreme Court and other courts when it disagrees with the positions that the Trump administration took. While I doubtless will generally disagree with the substance of the Biden administration’s legal claims (the case of the Affordable Care Act is an exception), I believe that the administration may change the position of the United States in litigation to reflect the legal views of the current administration. Indeed, I would go further: If the President and his advisors believe that the previous position is wrong on the law, they have a constitutional obligation to change it.

Agreed.  The supposed disfavor of changing positions is part of the unrealistic and non-constitutional idea of the supposed apolitical continuity of the Justice Department across presidential administrations.  Of course, there's something to be said for continuity across administrations in ordinary day-to-day Justice Department litigation.  But in constitutional cases -- and in other high profile litigation -- the Justice Department is an extension of the President.  When Presidents change, the Justice Department changes.  That's as the Constitution designed it.

As Professor McGinnis says:

The Solicitor General’s position in the constitutional hierarchy is as easily defined as that of the Secretary of State. Like the Secretary, he is subordinate to the President, appointed by him, and serving at his pleasure. Because litigation on behalf of the United States is inherently an executive branch function, his authority and that of other executive branch lawyers is ultimately derived from the Constitution’s grant of executive power to the President and must be exercised in a manner consistent with the President’s obligations.

Yes, and I would also say, "must be exercised in a manner consistent with the President's policy decisions."  Jefferson said that the Secretary of State is an instrument of the President, as much as a pen in the President's hand.  Same with the Solicitor General.  (And the Attorney General).

02/05/2021

Leonid Sirota on Originalism and Stare Decisis (and Canada)
Michael Ramsey

At Double Aspect, Leonid Sirota: Putting Stare Decisis Together Again.  An excerpt:

Critics of the lack of respect for precedent in Canadian public law tend to argue that enough is enough, and the Supreme Court should go back to a much more robust ― and consistent ― application of stare decisis. My argument is that this is too simple, too idealistic a response. In a perfect world where judges had generally been committed to the Rule of Law, unwavering respect for precedent may well be what an ongoing commitment to the Rule of Law requires. But the world of Canadian public law is far from being perfect in this way. Much of this law suffers from deep Rule of Law problems, some of which I described in my own contribution to the St-Hilaire & Baron volume. As a result, while I share the desire to put stare decisis together again, I argue that this operation will be a delicate one, and must be careful and somewhat selective.

One issue which I’ll address here ... is the concern that respect for precedent may force courts to apply something other than the correct legal rule, be it constitutional, statutory or, arguably, even a common law principle. Lord Sankey, perhaps the chief ― if also most misunderstood ― authority on constitutional interpretation in Canada describes the issue eloquently in the Aeronautics Reference, [1932] AC 54, [1932] 1 DLR 58. Pointing out that “[u]nder our system, decided cases effectively construe the words” of enactments, including constitutional enactments, Lord Sankey highlights

a danger that in the course of this process the terms of the statute may come to be unduly extended and attention may be diverted from what has been enacted to what has been judicially said about the enactment. To borrow an analogy; there may be a range of sixty colours, each of which is so little different from its neighbour that it is difficult to make any distinction between the two, and yet at the one end of the range the colour may be white, and at the other end of the range black. (DLR 64)

Lord Sankey’s concerns in the Aeronautics Reference are those of an originalist avant la lettre: “[t]he process of interpretation as the years go on”, he warned,

ought not to be allowed to dim or to whittle down the provisions of the original contract upon which the federation was founded, nor is it legitimate that any judicial construction … should impose a new and different contract upon the federating bodies.

Some prominent academic originalist voices have echoed this belief, notably Gary LawsonRandy Barnett, and Amy Coney Barrett (back when she was still in academia). However, they are not alone in worrying about precedent standing in the way of an accurate application of the law. Debra Parkes raises the same concern from a Canadian living constitutionalist perspective: “[t]he entrenchment of the Canadian Charter of Rights and Freedoms in 1982 has arguably strengthened the case for overruling earlier decisions that are inconsistent with the evolving interpretation of various Charter rights”. (137) Similarly, the late Joseph Arvay and his co-authors have argued that “it is the role and duty of the [Supreme] Court to provide what it believes to be a correct interpretation of the Charter, even if that involves admitting long-standing and oft-repeated past judicial error”. (69)

And from further on:

The Rule of Law concerns about the stability of legal doctrine are serious, of course. But the concern on the other side of the scale is no less based on the Rule of Law. The issue is with what Lon Fuller called “congruence” between the law on the books and the law as it is actually applied. (I wrote about this here.) Law cannot guide behaviour ― and thus play its moral role in providing a secure environment for citizens and establishing a mutually respectful relationship between the citizens and the state ― if it is not applied in accordance with its terms. Officials, including judges, who do not apply the law as it stands are engaged in nothing less than “lawless application of the law”. In my view, lawlessness cannot become the foundation of a Rule-of-Law compliant law; it must be expunged for our legal system to have a claim to the kind of authority that Fuller envisions.

02/04/2021

Richard Epstein on the Paris Climate Agreement
Michael Ramsey

At Defining Ideas, Richard Epstein: Biden’s Unlawful Re-Entry Into Climate Accord.  From the introduction:

On January 20, beneath an imposing array of solar panels, President Biden issued an executive order declaring that the United States would rejoin the Paris agreement on climate change. The order stated in full: “I, Joseph R. Biden Jr., president of the United States of America, having seen and considered the Paris Agreement, done at Paris on December 12, 2015, do hereby accept the said agreement and every article and clause thereof on behalf of the United States of America.”       

This executive order raises issues of huge constitutional import. Does the president of the United States have the constitutional power to “accept” the Paris agreement by unilateral action? The correct answer is a decided no. The Paris agreement should be understood first and foremost as a treaty. As such, it should be governed by Article II, Section 2, Clause 2 of the Constitution, which requires treaty ratification by two-thirds of the senators present. President Obama knew that he did not have the votes in the Republican-controlled Senate to ratify the treaty in 2016—hence the initial entry into the agreement via executive order.

The simple question here is whether the obligation to secure Senate approval can be avoided by rebranding the treaty as an “agreement,” as was done in Obama’s and Biden’s executive orders.

And from the core of the analysis:

To be clear, common midlevel executive orders can and should bind the United States past the current president’s term—no one thinks that the United States Senate should be required to deliberate over and consent to a fifteen-year embassy lease negotiated with a foreign government, for example. Nor does anyone think that it is inappropriate to use executive orders to give guidance about the meanings of key treaties. But in both domestic and international affairs, there must be some clear limit on unilateral president lawmaking. 

This issue has not received sufficient attention in the courts, so it is necessary to articulate some line between constitutional treaties and permissible executive orders. Perhaps the best way to frame the inquiry is by focusing on the twin tests of major impact and long duration. When both are present, the agreement is rightly a treaty. But if both are present in lesser degrees, there will be some serious questions about whether the agreement is a treaty or not. Notwithstanding obvious cases of ambiguity, the Paris Agreement clearly falls on the treaty side of the line. The point becomes painfully clear by looking at Biden’s specific agenda items in the executive order. The first is to “immediately begin the process of developing [a] nationally determined contribution under the Paris Agreement”—that is, an intended level of carbon dioxide reduction. He proposes to implement this program through “analysis and input from relevant executive departments and agencies, as well as appropriate outreach to domestic stakeholders.” Missing from this list is any mention of the role for Congress. 

I mostly agree, but as discussed in this post and in my article Evading the Treaty Power?, it's a little more complicated.  The central question is whether the Agreement is binding on the United States on any material matter and, relatedly, whether President Biden will use it as authorization for taking domestic actions he is not otherwise authorized to take.  On the first point I think the answer is yes, though I don't think Professor Epstein establishes it in his post.  On the second point, I think it remains to be seen.  The example Professor Epstein cites in the quote above does not seem to me to prove the point -- the President may just be directing executive agencies to look into the matter of emissions reduction, which he can surely do with or with the Agreement.  The extraordinary amount of congressional delegation to the President in environmental matters may mean that, as a matter of domestic law, the President doesn't need the Agreement as a basis for his authority.  (That doesn't mean the Agreement is constitutional, though -- just that it may be hard to challenge in court.)

02/03/2021

New Issue of the Harvard Journal of Law and Public Policy: The Structural Constitution in the 21st Century
Michael Ramsey

In its most recent issue (Winter 2021), the Harvard Journal of Law and Public Policy has published some of the presentations from last year's Federalist Society National Student Symposium, titled "The Structural Constitution in the 21st Century."  The short essays don't have abstracts, but here is the beginning of each of them (footnotes omitted):

The Federalist No. 48, The Separation of Powers, and “the Impetuous Vortex”,  by Paul D. Clement (Kirkland & Ellis)

Given that the focus of the Symposium is on the structural Constitution, what I want to talk about today is the separation of powers and, in particular, James Madison’s The Federalist No. 48 and the differences between the strengths of the relative branches of government today versus what Madison envisioned. If you look at The Federalist No. 48, you will see that Madison was most concerned with the power that had been given to the new national Congress.

In fact, he famously described Congress in The Federalist No. 48 as the “impetuous vortex” into which all power would be sucked but for the separation of powers. He was particularly concerned about Congress because of the power of the purse. As he wrote, “[it] alone has access to the pockets of the people.”

The executive, by contrast, was less of a concern for Madison because, as he wrote, it is “restrained within a narrower compass, and [is] more simple in its nature.” The judiciary was even less of a concern for Madison. As he said, “[it is] described by landmarks, still less uncertain,” by which I believe he meant the case and controversy requirement of the Constitution.

Madison was sufficiently concerned with the Congress and sufficiently unconcerned about the executive and the judiciary that he wrote, “projects of usurpation by either of these departments,”— the executive or judiciary—“would immediately betray and defeat themselves.” Congress, in Madison’s view, was not just the most powerful and most dangerous branch, but, if you read The Federalist No. 48 carefully, it is not an overstatement to say that Madison believed that the power of Congress was the raison d’être for the separation of powers. The checks and balances were there largely to constrain Congress. As he wrote, “it is against the enterprising ambition of this department that the people ought to indulge all their jealousy and exhaust all their precautions.”

So, let’s take a moment now to compare Madison’s vision with our present-day reality. What you see is that both the judiciary and the executive are more powerful than Madison envisioned, and Congress is certainly less active and less of the impetuous vortex that Madison had in mind.

The Role of Norms in our Constitutional Order, by Keith Whittington (Princeton)

We have given more attention to the issue of norms recently—maybe specifically during this administration—than we have previously. But I think it is high time that we pay attention to norms. They are an essential part of how our constitutional system works in general, but they tend to be under-analyzed. We do not pay as much attention to them as we should, nor do we have good tools for thinking about them. Moreover, I do not believe we even have
very good tools for identifying them.

So this is a useful moment for us to try to grapple with the fact that the Constitution vests a great deal of discretion in government officials of all sorts, and that norms are part of the process—part of the sub-constitutional sets of practices and rules—by which we make the constitutional system operate effectively, despite the fact that it entrusts vast discretion to government officials.

Keeping the Compact Clause Irrelevant, by Roderick M. Hills (NYU)

I want to say a few words, some sounding in law and some sounding in policy, about why I think the Compact Clause should continue to be, as it has always been, ignored by all relevant constitutional actors. That is not to say we should not acknowledge the Compact Clause is in the Constitution, but we should treat that Clause as a nonjusticiable part of the Constitution, much like the Guarantee Clause of Article IV is treated. I will go even further to argue that the Compact Clause should be understood to announce truisms that are unlikely to ever affect policymaking, because everyone agrees on them and rarely, if ever, violates them.

Rethinking the Senate, by Lynn Baker (Texas)

To give you a sense of where I’m headed, the very first article I published about the Senate back in 1997 was titled, “The Senate: An Institution Whose Time Has Gone?” I do not know if I would term the Senate evil, but I would certainly term it deeply problematic today. I do think it is very important to have some protection for minority viewpoints. Much of my scholarship has sought to underscore the benefits of some measure of state sovereignty within our federal system. I teach state and local government law. I am a big fan of state government. Yet, somehow, I end up in a different place with regard to the Senate than many other scholars.

We are all aware that from the very beginning of our constitutional democracy the Senate has held an exalted place. For example, Article I’s apportionment of representation in the Senate is the only provision among our current Constitution’s dictates that cannot be amended pursuant to the ordinary procedures of Article V. This provision was critical to getting the country off the ground, ensuring that the smaller states would feel protected and represented in the federal government.

But there are two particular harms today that derive from the fact that the existing allocation of representation in the Senate provides small population states what we all understand to be disproportionate power relative to their populations. The first is that the Senate systematically and unjustifiably redistributes wealth from large population states to small population states. 

Secondly, the Senate, systematically and to my mind unjustifiably, affords large population states disproportionately little power, relative to their shares of the nation’s population, to block federal homogenizing legislation. This is a blocking power that I might favor to protect minority viewpoints that minority states might have. The Senate will help provide the blocking power, but the problem is the allocation of that power: the large population states will be at a disadvantage relative to the small population states in protecting their own minority viewpoints in this way.

The Proper Role of the Senate, by John Yoo (Berkeley)

The Framers were wise to design a second house. The original version of the Constitution proposed a Senate that was elected by the House so that it still retained an indirectly majoritarian character. But, of course, the Great Compromise between the large and the small states brought today’s Senate into being as the price of having the Constitution.

It is important to remember that the Founders were suspicious of democracy. James Madison was against having a Senate elected by state legislatures. In fact, he wanted to have a Council of Revision that would have brought together aspects of the national government to continuously exercise not just judicial review, but policy review over all the acts of the state legislatures.

Indeed, Madison and the other leaders of the Constitutional Convention and the ratification debates had come together because they thought that democracy had gone too far in the states. You might recall James Madison wrote a memo right before the Constitutional Convention called “The Vices of the Political Systems of the United States.” He did not call it a memo, but James Madison would have been an inveterate memo writer today. We would have been sick of getting all of his emails.

In that memo, he wrote an analysis of what had gone wrong during the Critical Period between the Revolution and the Constitution. That diagnosis was excessive democracy. The democracies that existed under the state constitutions looked very much like governments with no upper house, other than an upper house controlled by the lower house; governments with a weakened Executive, again, controlled by the lower house;11 and governments that looked much more like parliamentary democracies as we see them in Western Europe. It is no accident, then, that not just the Senate but many aspects of the Constitution have this anti-democratic feature, or at least have the goal of trying to channel and limit democracy.

Constitutionalizing Interstate Relations: The Temptation of the Dark Side, by William Baude (Chicago)

What does the Constitution have to say about interstate relations? Well, it depends on how you ask.

One of the main topics in interstate relations is the question of what is called choice of law, which sounds very technical but fundamentally is the question of who governs—that is, which state gets to govern any given transaction.

The same kind of question comes up at the federal level—federal law versus state law—but it is dealt with by the Supremacy Clause of the Constitution, which makes clear that if a federal law is constitutional, it is controlling. But there is no Supremacy Clause for state law, which has forced people who worry about this question to look harder and elsewhere for some sort of hint about which state is supposed to govern which transaction.

02/02/2021

Definitely my Last Post on Impeachment Trials of Ex-Presidents
Michael Ramsey

Here's a non-comprehensive roundup of recent commentary on the matter of impeaching ex-Presidents (beyond what we've already discussed).  I think the issue is thoroughly beaten into the ground at this point.  I'll try to avoid having any further thoughts.

In Newsweek, Eugene Kontorovich: The Constitutional Case Against Retroactive Impeachment.

In the Washington Examiner, Senator Mike Lee:  The Constitution does not authorize a general impeachment power.

At Volokh Conspiracy, Brian Kalt responds to Senator Lee here (scroll down).

At the Daily Caller, a debate between Steven Calabresi (pro) and Scott Gerber (con).

At Bloomberg, Cass Sunstein; Can Ex-Presidents Be Impeached? No. Convicted? Yes.

To me, one telling weakness of the pro-impeachment-trial side is its harping on the obscure 1876 episode of William Belknap, the Grant administration Secretary of War who was impeached, and then tried for bribery after resigning his office -- and acquitted (though obviously guilty).  Professor Kontorovich rightly pummels this argument in the post linked above: 

Supporters of after-office impeachment have attempted to point to historical precedents—but there are no such precedents. In the 230-year history of the U.S. Constitution, there have been zero impeachments or trials of former presidents, and only one of any former "civil officer"—145 years ago.

Historical practice can be a guide to understanding the Constitution, but the Supreme Court has held that it takes a lot more than an isolated historical episode to show that something is constitutionally acceptable. Moreover, there is no reason to ignore the glaring lack of impeachments of the countless former office holders who may have deserved it. Indeed, since government officials spend more time out of office than in it, if subsequent impeachment were constitutional, one would expect to see it more often than impeachment of sitting officials.

One advantage of originalism is that it makes categorically clear that events like the Belknap episode are simply irrelevant to finding constitutional meaning. Occurring almost 90 years after ratification, it has nothing to say about how people in the founding era read the constitutional language.  An isolated incident 145 years in our past, it does nothing to establish a set of  extra-judicial precedents that would justify departing from the original meaning (even assuming, as I might, that extra-judicial precedents can sometimes have this effect).

Even under non-originalism's all-things-considered approach, I doubt many people would want to argue, as a general matter, that a single late-nineteenth-century event driven by partisan politics should count for much.  But nonoriginalism sets nothing categorically off limits, so in a time of need one may reach for anything.