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14 posts from May 2021


New Book: "The Words that Made Us" by Akhil Amar
Michael Ramsey

Recently published: The Words That Made Us: America's Constitutional Conversation, 1760-1840 (Basic Books 2021) by Akhil Amar (Yale).  Here is the book description from the publisher:

A history of the American Constitution’s formative decades from a preeminent legal scholar
When the US Constitution won popular approval in 1788, it was the culmination of thirty years of passionate argument over the nature of government. But ratification hardly ended the conversation. For the next half century, ordinary Americans and statesmen alike continued to wrestle with weighty questions in the halls of government and in the pages of newspapers. Should the nation’s borders be expanded? Should America allow slavery to spread westward? What rights should Indian nations hold? What was the proper role of the judicial branch?
In The Words that Made Us, Akhil Reed Amar unites history and law in a vivid narrative of the biggest constitutional questions early Americans confronted, and he expertly assesses the answers they offered. His account of the document’s origins and consolidation is a guide for anyone seeking to properly understand America’s Constitution today.


New Book: "Administrative Law Theory and Fundamentals" by Ilan Wurman
Michael Ramsey

Recently published: Administrative Law Theory and Fundamentals: An Integrated Approach (Foundation Press 2021), by Ilan Wurman (Arizona State).  Professor Wurman has posted the Introduction on SSRN; here is the abstract: 

New casebooks can be hard to justify. Many legal doctrines and their canonical cases are well established. But few fields are more in need of fresh thinking than administrative law. My new casebook, Administrative Law Theory and Fundamentals: An Integrated Approach, newly out with Foundation Press, seeks to provide such thinking. To my knowledge, it is the only administrative law casebook with the words “theory” and “fundamentals” in its title. And the reason might be that there is at present no coherent theory regarding the nature of administrative power. And the debates surrounding administrative power, on the part of both proponents and opponents of administrative government, have stalled.

The new casebook proposes a theory of administrative power that better explains constitutional text and structure, as well as historical and modern practice, than competing accounts. It argues that there are “exclusive” powers that only Congress, the President, and the courts can respectively exercise, but also “nonexclusive” powers that can be exercised by more than one branch. This theory of “nonexclusive powers” allows students and scholars of administrative law to make more sense of—or better critiques of—administrative concepts such as delegation, quasi-powers, judicial deference, agency adjudications, the chameleon-like quality of government power, and of the separation of powers more broadly. This five-page introduction seeks to situate this theory within the existing administrative law scholarship.

And from the conclusion (footnotes omitted):

This theory of nonexclusive and exclusive powers advances the field of administrative law. It explains why the concept of “quasi-legislative” and “quasi-judicial” power is appealing, but ultimately erroneous. It explains the “chameleon-like” quality of government power. It explains why Congress must authorize agencies to promulgate “legislative rules,” which are nonexclusive legislative power, but not interpretative rules or policy statements, which are executive power simply. It explains what Chief Justice Marshall meant when he wrote that Congress cannot delegate power that is “exclusively
legislative” in nature, but it can delegate to other departments power that it could have exercised itself, namely, the power to fill in the details pursuant to a more general provision. The theory better explains Chevron deference, once it is acknowledged that in most Chevron cases agencies are not actually interpreting law, but rather making policy—that is, exercising nonexclusive legislative power.  And the theory explains why most, but not all, administrative  adjudications are constitutional. In summary, administrative law is in need of a serious rethinking and clarification—and my new casebook lays the necessary groundwork. It takes formalism and originalism seriously, but concludes that much, although not all, of the administrative state may be constitutional after all.


Federalist Society Executive Branch Review Conference Starting Next Monday
Michael Ramsey

A week from today (Monday, May 17) is the beginning of the Federalist Society's annual Executive Branch Review Conference (held virtually again this year).  Here is the announcement from the Federalist Society:

Please join us for the Federalist Society's Executive Branch Review Conference Week which will take place virtually May 17-20 on Airmeet, a new platform that includes a networking option. Webinar panels this year will focus on "The Next Four Years" and include topics such as civil rights in the Biden Administration, the future of social media regulation, judicial nominations and confirmations, the environmental agenda, religious liberties, financial services, and much more.
There is no cost to attend and all panels will be live-streamed and available to watch online with up to 6 credits of CLE available (there is a minimal cost for CLE credit). To learn more and register, visit fedsoc.org/ebr9.
And here is the program for the first day:
11:00 a.m. - 12:30 p.m.
Non-Delegation? Or No Divesting? Art. I, Sec. 1 at the Founding and Today

Administrative Law & Regulation and Federalism & Separation of Powers Practice Groups

Whether as the result of hyper-partisanship or as a residue of the constitutional design for lawmaking, government by executive “diktat” is lately increasing.  Many of these executive actions appear to have dubious—if any—statutory authority, but the courts have been reticent to validate objections along these lines.  The U.S. Supreme Court has indicated a willingness to revisit and possibly to reinvigorate the non-delegation doctrine (with 5 Justices adhering to that view publicly), or at least to put some teeth into its supposedly constraining intelligibility principle.  To do so, the Court first will have to grapple with whether Article I, Section 1 of the Constitution contains a non-delegation principle at all?


Prof. Nicholas Bagley, Professor of Law, University of Michigan Law School

Prof. Philip Hamburger, Maurice & Hilda Friedman Professor of Law, Columbia Law School

Prof. Jennifer Mascott, Assistant Professor of Law, Antonin Scalia Law School

Prof. Nicholas Parrillo, William K. Townsend Professor of Law, Yale Law School

Moderator: Hon. Neomi Rao, United States Court of Appeals, D.C. Circuit

1:00 p.m. - 2:30 p.m.
Trade and Its Cross-Cutting Equities: New Horizons, New Challenges

Intellectual Property and International & National Security Law Practice Groups

The Trump Administration re-focused U.S. trade policy on the interests of several sectors of the U.S. market, including traditional manufacturing. How the Biden Administration directs U.S. trade policy remains to be seen.

Rising to the challenge of IP theft—both by commercial firms and strategic actors—the previous Administration took a hard look at trade with China and other competitors. Keeping pace with emerging technologies, it re-aligned U.S. policies on export control and investment review. Meanwhile, the U.S.-Mexico-Canada Agreement (USMCA) re-configured the United States’ two most important trade relationships. Being a treaty in force, USMCA is likely to stay the touchstone for those relationships. Other areas of trade policy, however, the President may more readily shift in new directions. A range of national security-related policies in particular fall within Executive Branch discretion, and because of the granularity of so many critical trade-related rules, the interplay of White House preferences and Interagency equities inevitably will influence policy outcomes as well.

The ideal for any market is the frictionless flow of goods, services, capital, and ideas. Seldom, if ever, however, does any given market live up to the ideal. Trade, because it takes place across different national markets and regulatory régimes, entails distinctive challenges. This Conference Panel, Trade and Its Cross-Cutting Equities: new horizons, new challenges, will explore several key challenges that lie ahead as the Executive Branch seeks to steer its trade-related departments and agencies to make best use of its particular tools of the trade.


Prof. Thomas D. Grant, Faculty of Law, University of Cambridge 

Hon. F. Scott Kieff, Fred C. Stevenson Research Professor, George Washington University Law School 

Dr. Joshua Meltzer, Senior Fellow, The Brookings Institution 

Moderator: Mr. Steven Tepp, President & CEO, Sentinel Worldwide


A Response by Leonid Sirota & Mark Mancini on the Rule of Law
Michael Ramsey

At Double Aspect, Leonid Sirota & Mark Mancini: Interpretation and the Value of Law II (responding the this essay by Stéphane Sérafin et al., critiquing an earlier Sirota & Mancini post).  Here is the introduction:

We read with interest Stéphane Sérafin, Kerry Sun, and Xavier Foccroulle Ménard’s reply to our earlier post on legal interpretation. In a nutshell, we argued that those who interpret legal texts such as constitutions or statutes should apply established legal techniques without regard for the political valence of outcomes. Only in this way can law function as a common reference and guide in a pluralistic, democratic society in which, as Madison eloquently argued in Federalist No. 10, disagreement about fundamental values and the policies required to implement them is pervasive and bound to remain so “[a]s long as the reason of man continues fallible, and he is at liberty to exercise it”.

Our interlocutors claim that our argument leads legal interpretation into “insipid literalism” and, ultimately, sees law as nothing more than a form given to the outcome of power struggles, rather than as the product of reason striving to advance the common good. We remain unconvinced. Our interlocutors seem to wish to escape the more controversial uses to which the “common good” term has been put, but rely on ambiguous claims in doing so. We write today to address some of these claims.

The bottom line is this: if our interlocutors wish to fundamentally change the way we understand texts by sotto voce urging interpreters to adopt a “substantively conservative” position at the outset of the interpretive task, we must dissent. If they wish to simply “tune-up” the way we use purpose and context to enrich our understanding of bare texts, then that is a worthy contribution to the ongoing effort in which many of us are engaged: trying to make Canadian interpretation more workable, less results-oriented, and more focused on the text itself, understood in light of its legislative context in real, practical cases.

Our response is divided into two parts. First, we describe how our interlocutors misunderstand the relationship between, as Jeremy Waldron put it, “The Concept and the Rule of Law”. Second, we catalogue the ways in which our interlocutors’ position is muddled.


New Issue of the Harvard Journal of Law and Public Policy
Michael Ramsey

The Spring 2021 issue of the Harvard Journal of Law and Public Policy is now published, with two principal articles:  

Revisiting Smith: Stare Decisis and Free Exercise Doctrine  by Branton J. Nestor

Who Determines Majorness?  by Chad Squitieri

From the introduction to the second: 

Do federal courts have the constitutional authority to definitively determine questions of politics? The answer would appear obvious: No. Separation-of-powers principles mandate that the judiciary play no direct role in the political process. Instead, federal courts are limited to faithfully applying the outcome of the political process (i.e., law) to particular sets of facts. Peculiar then is the major questions doctrine, which calls on courts to determine policy questions’ “economic and political significance.”

The major questions doctrine is said to do one thing but in practice does another. What is more, at least two sitting Supreme Court Justices have proposed strengthening the major questions doctrine so that it does something else entirely. Both of those Justices are committed textualists. The present moment thus calls for a thorough explanation as to why textualists should reject the major questions doctrine—including what the doctrine is said to be, what the doctrine actually does in practice, and what the doctrine might soon become.

And from the first: 

The Supreme Court held in Employment Division v. Smith that the Free Exercise Clause does not generally protect religiously motivated conduct from neutral laws of general applicability. That holding, although good law, remains controversial, with many scholars and judges now asking whether, if Smith was wrong, it should be overturned. Wading into this debate, this Article suggests that one common stare decisis consideration—a precedent’s consistency with related decisions—likely cuts against retaining Smith, at least to the extent that Smith’s holding and rationale are compared to the Supreme Court’s broader approach to the Religion Clauses. This Article first argues that Smith broke from prior Free Exercise Clause precedent and that, although Smith remains good law, it is in tension with many strains of Free Exercise Clause precedent today. This Article next argues that Smith is in tension with the ascendant focus on text, history, and tradition that has become increasingly central to contemporary Establishment Clause doctrine. While this Article does not fully resolve Smith’s stare decisis fate, it suggests one important weakness confronting any attempt to defend Smith on stare decisis grounds—with that weakness, and the doctrinal tensions it reveals, pointing the way toward how to reform contemporary Free Exercise Clause doctrine to better account for the text, history, and tradition of the Religion Clauses.



David Forte on Hadley Arkes et al. on Originalism
Michael Ramsey

At Law & Liberty, David Forte (Cleveland State): Originalism and Its Discontents (responding to this essay by Hadley Arkes, Josh Hammer, Matthew Peterson, and Garrett Snedeker).  From the introduction: 

The King is Dead. Long Live the King.

So do our friends, the authors of “A Better Originalism,” intone their unsympathetic obsequies over the corpse of originalism, struck dead, they declare, by the hand of Justice Neil Gorsuch in Bostock v. Clayton County. One can understand their dismay over the forms that originalism has often taken. Justice Antonin Scalia, for example, often dismissed the moral imperative behind certain constitutional provisions. The authors note appropriately, for example, that in Obergefell v. Hodges, he declared “[The] substance of today’s decree is not of immense personal importance to me.” Such a perspective could, if adopted rigorously, turn respect for the positive law into positivism. Moreover, the fear is that such an ungrounded legalism results in relativism.

The authors declare that Justice Gorsuch’s textualism signals “the failure of originalist jurisprudence,” and they then go a step further by condemning a jurisprudence that “solely relies on proceduralist bromides,” chiding that “[t]oday’s legal eagles exalt procedure over substance.” I do not dwell on those rhetorical overstatements, but turn to the authors’ more fully justified critique that “the only rational way to interpret a legal text is both through its plain meaning and the meaning given to it by the distinct legislative body (or plebiscite) that ratified it.” In fact, that view of textualism was championed by Justice Samuel Alito in his dissent to Bostock.


Charles Kesler on Shep Melnick on "Crisis of the Two Constitutions"
Michael Ramsey

At Law & Liberty, Charles Kesler (Claremont McKenna - Government): America’s Constitutional Crisis (responding to Shep Melnick's review of Professor Kesler's book).  From the introduction: 

Law & Liberty turned over a lot of space (“Claremont’s Constitutional Crisis,” March 29) to Shep Melnick’s review of my recent book. I wish he had made better use of it. Looking over the dozen pieces he has written for me over the years at the Claremont Review of Books, I find a sobriety and balance that he seemed to misplace in this one.

Perhaps it’s because he can’t help illustrating the thesis of Crisis of the Two Constitutions even as he deprecates it: that American politics grows embittered because it is increasingly torn between two rival constitutions, cultures, and accounts of justice. At any rate, I shall return the favor by asking Law & Liberty for considerable space myself.


[Melnick's] argument is threefold: (1) there are “serious flaws in the American regime” that I ignore; (2) the influence of “progressive historicism” is not as baneful as I claim; and most dramatically, (3) the book as a whole “constructs a narrative that encourages anti-constitutional extremism” à la Trump. The three are connected. Because I have too high an opinion of the founding, Melnick asserts, I take too negative a view of progressivism, and end up imagining a crisis where none exists—thereby helping actually to create one.

Professor Kesler's book is Crisis of the Two Constitutions: The Rise, Decline, and Recovery of American Greatness (Encounter Books 2021).



Eric Segall Reviews Jamal Greene's "How Rights Went Wrong"
Michael Ramsey

Eric Segall (Georgia State University College of Law) has posted The Battle Over Rights is the Problem but Judges are not the Solution (Constitutional Commentary, forthcoming) (15 pages) (reviewing Jamal Greene, How Rights Went Wrong: Why Our Obsession with Rights Is Tearing America Apart) on SSRN.  Here is the abstract:

In his new book, How Rights Went Wrong, Professor Jamal Greene takes apart much of American constitutional law in a detailed and beautifully written account of how the Supreme Court's approach to rights has made us more polarized and more divided. But Professor Greene, who wants the Court to take a more detailed, fact specific, and contextual approach to rights cases is looking for answers in the wrong place. The solution to the Court's inability to provide some measure of balance to our great divides over rights is to return most of those issues to the political process where, absent clear text or history, they belong.

Here is my prior post on Professor Greene's book.

As is often true, I agree with much of what Professor Segall says -- but I think we differ very substantially on what constitutes "clear text or history."

RELATED:  At Dorf on Law, Professor Segall has this post on the recent "profane cheerleader" case: Cursing Cheerleaders, Constitutional Interpretation, and Law as Social Policy.


Is There a Presidential Exception to the Usual Power of Congress to Impose Disqualification for Executive Branch Employment as a Punishment for Federal Crimes?
Andrew Hyman

The Constitution prevents Congress from adding qualifications for members of Congress, but that fact does not automatically limit how Congress can treat presidential qualifications.  However, in a February post by Professors Seth Barrett Tillman and Josh Blackman at the Volokh Conspiracy blog, they wrote (all bracketed words are as in their blog post):

In Federalist No. 60, Hamilton argued that Congress lacks the power to add to the qualifications for elected federal positions. In that paper, Hamilton wrote, "[t]he qualifications of the persons who may choose or be chosen [for a seat in Congress], as has been remarked upon other occasions, are defined and fixed in the Constitution, and are unalterable by the legislature."

In that second sentence, Tillman, Blackman, and Hamilton are 100% correct, and they accurately limit the scope of that sentence to seats in Congress.  But the first sentence is an overbroad inference from the second sentence, because the first sentence apparently makes an assertion about all elected federal positions, not just seats in Congress.  

It should go without saying that presidents and members of Congress are in different branches of government, controlled by different clauses in different sections of the Constitution, and it would be wrong to say that Federalist 60 somehow supports the idea that Congress has no power to add qualifications for the presidency, which is an elected federal position.  Such a lack of congressional power is exactly the position that Blackman and Tillman are advocating, but they ought to have made clear that Hamilton said nothing in Federalist 60 to prove it.

Now, in an April 30 piece in the Illinois Law Review Online, Tillman and Blackman suggest the same overbroad inference from Federalist 60 (all bracketed words are as in their piece):

Our argument starts from a basic premise: Absent express constitutional authorization, Congress cannot impose additional qualifications for elected federal officials beyond those already expressly enumerated in the Constitution. This position is not novel. In Federalist No. 60, Alexander Hamilton argued that Congress lacks the power to add to the qualifications for elected federal positions. He wrote, “[t]he qualifications of the persons who may choose or be chosen [for a seat in Congress], as has been remarked upon other occasions, are defined and fixed in the Constitution, and are unalterable by the [national] legislature.”

This last sentence by Tillman and Blackman is correct, but the rest exaggerates it.  This exaggeration can be confirmed by looking at the relevant material from Federalist No. 60 without any ellipsis or brackets.  Hamilton begins by discussing the authority of the national government (emphasis added):

Its authority would be expressly restricted to the regulation of the times, the places, and the manner of elections. The qualifications of the persons who may choose or be chosen, as has been remarked upon another occasion, are defined and fixed in the constitution; and are unalterable by the legislature.

Hamilton is obviously referring here not to Article II, but rather Article I of the Constitution, which says (emphasis added): 

The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Place of Choosing Senators.

This key phrase (“Times, Places and Manner”) is used only with respect to Congress, and not with respect to the President, in the U.S. Constitution.  So why do Tillman and Blackman quote Federalist 60 to bolster their argument about the President?  As I wrote previously at this blog, “Notice that that time, place, and manner language of Article I forms a list that excludes items not listed, whereas Article II does not include such a list pertaining to presidential elections (that is, Article II does not seem to create any ‘presidential exception’ to the usual power of Congress to impose disqualification for federal office as a punishment for federal crimes).”  It's true that the Constitution lists some presidential qualifications:

No person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty-five Years, and been fourteen Years a Resident within the United States.

But this is a list of civil qualifications, which impliedly rules out other civil disqualifications; it's not a list of criminal disqualifications, and so does not rule out any criminal disqualifications.  The expressio unius canon only rules out items of the same type as those listed, and does not rule out things of a different type, which is probably why Hamilton did not rely upon the listing of congressional qualifications to rule out other congressional disqualifications; instead, Hamilton relied upon the "time, place, or manner" language of Article I which ruled out much more than did the listing of congressional qualifications.  Likewise, when Madison in Federalist 52 applied the expressio unius canon to the listing of qualifications for House members, he only found that it forbade Congress from imposing additional civil disqualifications ("the door of this part of the federal government is open to merit of every description, whether native or adoptive, whether young or old, and without regard to poverty or wealth, or to any particular profession of religious faith").

Lament Hilts: Understanding Nativist Elements Relating to Immigration Policies and to the American Constitution’s Natural Born Citizen Clause
Michael Ramsey

Lament Hilts (independent) has posted Understanding Nativist Elements Relating to Immigration Policies and to the American Constitution’s Natural Born Citizen Clause (28 pages) on SSRN.  Here is the abstract: 

I start with a definition. A “nativist” element of a legal system is one which preserves some benefit for, all or some of, the nation’s citizens or its indigenous inhabitants, as opposed to granting that benefit neutrally to citizens and immigrants alike.

Not so long ago the essential morality of such a distinction was considered so obvious that no defense was thought to be necessary. Indeed, in many traditional societies there is no distinction between the indigenous inhabitants (that is, the people) and the nation. Any attempt by a government to treat newcomers equally in all respects would have been akin to incomprehensible.

Today, in the West, there is a growing view that all such distinctions are actual or tantamount to invidious racial, ethnic, or religious discrimination. Still such distinctions have long-standing bona fides — even in Western societies. For example, under the United States Constitution (1787), all elected federal officials in the national government must be held by citizens. Members of the diet’s lower chamber must be 25 years old, be an inhabitant of the state in which they are elected, and have held citizenship for at least 7 years. Similarly, members of the upper chamber must be 30 years old, be an inhabitant of the state in which they are elected, and have held citizenship for at least 9 years. Like holding a congressional seat, eligibility to hold the presidency and vice presidency requires that the candidate meets an age requirement (at least 35 years old) and a residency requirement (at least 14 years in the United States). However, unlike holding a congressional seat, eligibility to hold the presidency and vice presidency is limited to natives, or more properly, using the language of the United States Constitution, to “natural born citizen[s]” — a person who is born in the United States and a citizen since birth.

This essay asks two related questions: Is a society justified in distinguishing citizens and immigrants? Is a society justified in distinguishing citizens from birth from those who become citizens subsequently through naturalization?

The efforts of the modern commentators to explain the Natural Born Citizen Clause as one rooted in bigotry and prejudice directed at naturalized citizens is the product of an intellectual milieu of large, powerful countries, where there is no memory of bombs falling on the nation’s core territory or any existential fear of conquest by foreign powers. The concern of these authors is merely the fair distribution of society’s benefits and opportunities, between citizens and immigrants. The “other,” to the extent he exists at all, is just a person who has not yet become or who has not yet been allowed to become an American.

Modern theories of separation of powers and constitutional design have little or nothing to do with the Framers’ and Founders’ world of revolutions and imperial wars—where oceans and frontiers pose dangers—as you yourself pose dangers to others—where others may burn down your capital as you may burn down theirs. The Natural Born Citizen Clause was the limited policy response of a People who believed that beyond one’s national frontier was a dangerous world. That the clause’s purpose is no longer widely understood indicates that much has changed since 1787.