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28 posts from February 2022

02/18/2022

On “Federal Functions,” the 2020 Presidential Election, the Necessary and Proper Clause, and Our Constitutional Law Courses
Rob Natelson

[Ed.: We're pleased to have Rob Natelson back for another guest post.  He taught Constitutional Law, Advanced Constitutional Law, First Amendment, and Constitutional History at the University of Montana. After 25 years he left academia in 2010 to work with the Independence Institute in Denver, where he is Senior Fellow in Constitutional Jurisprudence. He is the author of, among many other works, The Original Constitution: What It Actually Said and Meant (3d ed., 2015).]

I’ve become known among state lawmakers for my contributions to the popular press and as a member of the board of scholars for a legislative trade organization. So I should not have been surprised when, in the aftermath of the November 3, 2020 presidential election, I started getting calls and emails from state lawmakers and their associates in those states where the apparent results were disputed.

They had been receiving multiple reports of serious voting irregularities. By “reports” I don’t mean the claims of the Trump campaign. I mean statements from constituents about what they had seen on the ground. These statements seemed reliable enough to outweigh media efforts to dismiss them.

“We may have a mess,” they said. “What, if anything, can we do about it?”

The usual answer from their legislative counsel seems to have been: “Nothing.” Counsel told lawmakers that because the popular vote was over and the results had been (or were about to be) certified, the choice of presidential electors was a fait accompli. Moreover, in all states with disputed presidential elections, the governor (whether Republican or Democrat) opposed legislative response. Lawmakers were told, “The governor is not going to call you into session. And even if the state constitution allows you to call yourselves into session, the governor will veto anything you try to do.”

However, this advice was erroneous.

In fact, lawmakers could have called themselves into session, whether the state constitution authorized it or not. They could have acted without the governor’s cooperation. They could have (1) investigated to ascertain whether there were serious irregularities and, if so, their likely effects, (2) called a re-vote for presidential electors, or (3) chose the electors themselves. The only caveat was that any new slate of electors would have to be chosen before the constitutionally-authorized federal deadline of December 14—the day designated as the time presidential electors cast their ballots.

This post builds on that episode to develop three principal points:

*          There is a significant, but little-understood field of law governing the exercise of constitutional power (“federal functions”) by persons and entities not acting as part of the federal government.

*          The rules governing federal functions often are different from those governing other enumerated powers. Neither ordinary legislation nor the Necessary and Proper Clause applies to them.

*          A primary reason this field is little understood, including by legislative counsel, is that we don’t teach it in law school constitutional law courses. We are too busy teaching more transient doctrines.

I.  Federal Functions.

The Constitution grants enumerated powers to Congress, the President, the Courts, and the federal government per se. (The grants to the federal government are phrased in words of obligation. They appear, for example, in the Guarantee Clause of Article IV and the Debt Assumption Clause of Article VI.) But the Constitution also grants powers to persons or entities acting outside the federal government. The courts refer to the exercise of those powers as “federal functions.” Detailed citation in support of the following discussion is available in my recent article on the subject (pdf).

Some “federal function” grants are to ad hoc entities. By way of illustration, the Constitution grants the Electoral College power to select the President and Vice President. It grants conventions power to propose and ratify amendments.

Other federal functions are performed by state officials. The Constitution gives governors authority to issue writs for election to fill congressional vacancies. It gives state legislatures power to regulate the times, places, and manner of holding congressional elections. It also authorizes state legislatures to force the call of a “Convention for proposing Amendments” and, if designated by Congress, to ratify amendments. Before the Seventeenth Amendment, the Constitution entrusted state legislatures with power to elect U.S. Senators as well.

Additionally, the Constitution bestows power on Congress (acting bicamerally) to propose constitutional amendments and (acting unicamerally) to oversee the count of electoral votes. It grants the House of Representatives (acting under special rules) and the Senate power to conduct run-off elections for the President and Vice-President respectively.

Finally, the Constitution bestows the choice of presidential electors on the states qua states, but authorizes only their legislatures (not, for example, their constitutions or other institutions) to determine the “Manner” in which the choice is made.

The power to exercise a federal function comes directly from the Constitution. Occasionally, the Constitution grants the function to the entire legislative apparatus of a state and contemplates that the function will be exercised by state law. For example, in Arizona State Legislature v. Arizona Independent Redistricting Commission (pdf) the Supreme Court held that the Election Clause grant to set the times, places, and manner of congressional elections is given to the entire legislative apparatus of the state. Thus, it includes any local provisions for initiative and referendum and gubernatorial veto. From an originalist standpoint, this decision probably was correct, because (as far as I have been able to determine) colonial and early state legislatures adopted election regulations by ordinary statute.

Most federal functions, however, are carried out by the person or entity named in the Constitution, acting alone. Thus, in 1798, the Supreme Court held that when Congress proposes a constitutional amendment it does not act in a legislative capacity, so the signature of the President is unnecessary (pdf). Later jurisprudence has extended the same principle to state legislative action in the amendment process. Participating assemblies act pursuant to the Constitution as representatives of the people, without participation by the governor and without mechanisms of direct democracy. Similarly, in 1892 in McPherson v. Blacker (pdf), the Supreme Court compared the state legislature’s power to determine the manner of choosing presidential electors to the legislature’s then-prevailing authority to select U.S. Senators—both of which the legislature could do without regard to state constitutional limitations, such as the gubernatorial veto. Indeed, McPherson held that state legislative power over the choice of electors was “plenary.” (SCOTUS reaffirmed McPherson as good authority in 2020 (pdf).)

In McPherson, the court made it plain that state constitutional limitations on the legislature do not apply to its federal function of determining the manner of choosing electors. In 1922 the Supreme Court, speaking through Justice Louis Brandeis, held that because ratification of a constitutional amendment is a federal function, the governing law is solely federal constitutional law (pdf); state laws and constitutions are irrelevant. In 1982, a federal district court held that Congress’s Article I lawmaking power is likewise irrelevant to the amendment process (pdf).

II.  The Necessary and Proper Clause, the Electoral Count Act, and the 2020 Election

A number of legal writers, including Professor Michael Ramsey in his excellent recent commentary on the Electoral Count Act, have assumed that the Necessary and Proper Clause grants Congress power to regulate federal functions. But consideration of the foregoing principles shows that this is not so. The Necessary and Proper Clause authorizes Congress to make “Laws.” If federal functions are governed directly by the Constitution and not by federal laws, the Clause is inapplicable on its face. Moreover, the Clause applies to the “Government of the United States” and to its “Department[s]” and “Officer[s].” State legislatures, governors, the Electoral College, and independent conventions are not “Departments” of the federal government. Nor, really, is Congress when it acts in the amendment process or in a joint session for counting electoral votes. It exercises those functions as an independent assembly.

In 1975, John Paul Stevens, who was just about to ascend to the Supreme Court, chaired a three-judge district court panel in a case called Dyer v. Blair (pdf). The issue was the validity of the Illinois legislature’s ratification of the Equal Rights Amendment. I commend this case as a source of federal function law. Justice Stevens’ most relevant point for our purposes is this: When a legislature or convention exercises a federal function, statutory law on the subject is advisory only.  The assembly may choose to comply with it, and that choice may be inferred from the assembly’s action. But the assembly is not required to comply with it.

It follows that the Electoral Count Act is unconstitutional as a statute. It is valid only as a recommendation to the joint session of Congress, which may opt to follow or disregard it.

As for the 2020 presidential election, federal function law makes it clear that the legislatures in states with disputed presidential election results could respond as independent assemblies. They didn’t need the governor to call them into session. They could call themselves into session. They didn’t need the governor to sign their bills. They didn’t need the governor at all.

By the time state lawmakers learned this, however, it was too late to pursue most of the options they otherwise could have pursued.

III. A Failure in our Constitutional Law Courses

The realm of federal functions is an important area of constitutional law. It governs the amendment process. It governs, in large part, our presidential elections. It governs, to a certain extent, our congressional elections.  But I’ve never heard of the subject being addressed in a law school constitutional law course. Perhaps a reader can tell me of one. Is it any wonder that state legislative counsel were ignorant of it?

One reason we exclude federal functions from constitutional law courses is what we include.  If the available law school case books are any measure, we spend an average of two-thirds of our course time on only two percent of the Constitution—that is, on the First Amendment and on Sections 1 and 5 of the Fourteenth Amendment. Perhaps this is because we feel comfortable with the “common law”-type methodology the Supreme Court has imposed in those areas. Or, just as likely, it is because law professors like to talk about race, sex, and porn—or believe their students do.

Whatever the reason, I think it is perverse to spend so much class time on areas of recurrently-shifting jurisprudence, while neglecting constitutional principles that are just as central and far more enduring.

I retired from law teaching in 2010. Sometimes (although admittedly not often) I think I’d like to do it over.

02/17/2022

Thirteenth Annual Originalism Works-in-Progress Conference in San Diego Friday and Saturday
Michael Ramsey

The Thirteenth Annual Hugh and Hazel Darling Foundation Originalism Works-in-Progress Conference, hosted by the University of San Diego Law School's Center for the Study of Constitutional Originalism, will take place tomorrow and the next day, February 18-19, 2022.  Here is the schedule: 

Friday, Feb. 18

2:30 – 2:45      Opening Remarks, Michael Rappaport (USD)

2:45 – 4:00      First Paper: Will Baude (Chicago): Severability First Principles

Commentator: Tara Leigh Grove (Alabama); Moderator: Steve Smith (USD)

4:15 – 5:30      Second Paper: Michael Paulsen (St. Thomas), The Power to Declare Peace

Commentator: Michael McConnell (Stanford); Moderator: Larry Alexander (USD)

Saturday, Feb. 19

9:30 – 10:45    Third Paper:  Evan Bernick (Northern Illinois) & Chris Green (Mississippi), There Is Something That The Constitution Just Is

Commentator: Bernie Meyler (Stanford); Moderator: Eric Segall (Georgia State)

11:00 – 12:15  Fourth Paper: Ilan Wurman (Arizona State), Reconstructing Reconstruction-Era Rights

Commentator: John Harrison (Virginia); Moderator: David Upham (Dallas)    

1:30 – 2:45      Fifth Paper: Adam Samaha (NYU), Construction Zone Destruction

Commentator: John McGinnis (Northwestern); Moderator: Tom Colby (George Washington)

3:00 – 4:15      Sixth Paper: Jud Campbell (Richmond), Rights of American Citizenship

Commentator: Ryan Williams (Boston College); Moderator: Mila Sohoni (USD)

4:30 – 5:45      Seventh Paper: Anthony Bellia (Notre Dame) & Bradford Clark (George Washington), The Original Law of Constitutional Interpretation

Commentator: Ingrid Brunk Wuerth (Vanderbilt), Moderator: Maimon Schwarzschild (USD)

02/16/2022

Conor Casey & Adrian Vermeule: Myths of Common Good Constitutionalism
Michael Ramsey

Conor Casey (University of Liverpool School of Law & Social Justice) & Adrian Vermeule (Harvard Law School) have posted Myths of Common Good Constitutionalism (Harvard Journal of Law and Public Policy, Vol. 45, No. 1, 2022) (43 pages) on SSRN.  Here is the abstract: 

This essay takes stock of the debate over common good constitutionalism and the revival of the classical legal tradition. In doing so, we suggest that several of the most common critiques of that revival are based on serious misconceptions and question-begging claims, especially for the superiority of originalism.

Our hope is to clear away these myths so that actual engagement may occur. We hope to inaugurate a new phase of discussion, one in which critics of the classical legal tradition begin with a baseline comprehension of what it is they are criticizing. In a sense, despite all the sturm und drang, the real debate over common good constitutionalism has yet to begin.

Part I sketches the largely ersatz debate so far. Part II introduces the essentials of the classical theory of law and of common good constitutionalism, which is nothing more than the core precepts of the classic legal tradition translated, adapted and applied to current constitutional debates. We do not purport to provide a comprehensive statement of the classical theory, but merely offer an introductory mini-primer, with references to more comprehensive literature. As we will see, the myths we will discuss beg even the elementary questions. Part III explains how the myths are incorrect—or, more precisely, beg the questions in controversy. In the conclusion, we invite genuine engagement with the classical legal tradition.

02/15/2022

John Kerkhoff on Julian Mortenson on Nondelegation
Michael Ramsey

At the Yale Journal on Regulation's Notice and Comment Blog, John Kerkhoff (Pacific Legal Foundation): Sources and Subdelegation.  From the introduction: 

In their important paper on nondelegation, Professors Julian Davis Mortenson and Nicholas Bagley take to task those who use thinly sourced arguments to support the nondelegation doctrine. They put it bluntly: “It should go without saying that sweeping assertions about widely shared (let alone undisputed) understandings should not rest on such scanty source material.” (p. 297).

I agree. But such a rule should apply across the board. That includes their own work—and particularly to the sweeping assertion that the Founders explicitly embraced subdelegation of legislative powers to other branches. Yet it turns out that for this claim, they cite just one lecture from one founder, and the lecture does not even say what Mortenson and Bagley suggest it does.

Last month, Professor Mortenson doubled down on this position—with the same citation—in an amicus brief to the Supreme Court in a case about an agency’s delegated powers. To my mind, the case doesn’t present much of a nondelegation issue, but lots of people think otherwise, so the case has drawn attention from all corners of the nondelegation world. ...

From the core of the argument:

To my concern with the brief. It first points out that “the legislature’s authority had already been delegated by the people.” (Brief, p. 4). That’s certainly correct. “We the people,” as sovereign, delegated powers to the separate branches—including to Congress. But the brief then goes on to say that “the propriety of further subdelegation was taken for granted.” This goes to the heart of the brief’s claim: that there was no nondelegation doctrine at the Founding. In support of this crucial proposition, the brief cites to only one source: the lectures of James Wilson. Mortenson’s law review article invokes the same citation to argue that “legislative power could be redelegated just like any other.” (p. 299).

I agree that it's problematic to rely just on Wilson to establish a widely held founding-era understanding, if that's what Professors Bagley and Mortenson are doing.

As to the substance, the post continues:

[I]t is crucial to understand what Wilson said. Here is the passage, as quoted by Mortenson and Bagley in their paper:

Representation is the chain of communication between the people and those, to whom they have committed the important charge of exercising the delegated powers necessary for the administration of publick affairs. This chain may consist of one link, or of more links than one; but it should always be sufficiently strong and discernible. (p. 299)

This passage, standing alone, can certainly be read to support Mortenson’s claim. But a closer look shows that it has nothing whatsoever to do with subdelegation of legislative powers, let alone delegations to a separate branch. The passage instead has to do with what historian Gordon Wood has explained was the new form of representation reflected in the American system of government: one in which the people for the first time were represented throughout all of government, not just the legislative branch. (WoodCreation, at p. 596-603). As the context of Wilson’s lecture makes clear, he is talking about the chain of representation from the people to judges. 

Substantial further historical discussion follows.  It's a serious challenge, and it will be interesting to see how Professor Mortenson responds.

Without looking at the matter too closely, I'm doubtful that even on its face the Wilson quote supports the Bagley/Mortenson hypothesis.  In any event, it doesn't show a founding-era reading of particular constitutional text, since Wilson was speaking very abstractly (as he often did).  I would be hesitant to rest much on it.

(Thanks to Ilan Wurman for the pointer.)

02/14/2022

Mark Joseph Stern on the Federal Employee Vaccine Mandate
Michael Ramsey

I don't often agree with Slate's polemical left-wing legal commentator Mark Joseph Stern, but I think he's right on this one: The 5th Circuit Just Rewarded a Brazen Heist of Presidential Power.  As he explains: 

[T]he 5th U.S. Circuit Court of Appeals upheld one of the most egregious abuses of the federal judiciary in memory. By a 2–1 vote, the court refused to halt a Trump judge’s nationwide injunction barring President Joe Biden from requiring his own workforce to get vaccinated against COVID-19. 

...

It’s important to understand at the outset that this case, Feds for Medical Freedom v. Biden, is fundamentally different from other vaccine-related lawsuits. Previous cases tested the limits of the executive branch’s authority to compel private companies—including federal contractors and recipients of government funding—to impose a vaccine mandate (or a vaccinate-or-test policy) on their workers. Feds for Medical Freedom involves a very different workforce: the executive branch of the United States government. The president, of course, is the head of the executive branch, and according to the Supreme Court, he holds all executive power. Although the chief executive often delegates oversight of his roughly 2.1 million employees, he is, as a constitutional matter, their boss. Congress has acknowledged this fact in a sweeping law that allows the president to “prescribe regulations for the conduct of employees in the executive branch.” And the Supreme Court has recognized that, under both this statute and his inherent constitutional authority, the president bears responsibility for “the efficient operation of the executive branch.”

And from Judge Stephen Higginson's dissent from the 5th Circuit order:

“Under our Constitution, the ‘executive Power’—all of it—is ‘vested in a President,’ who must ‘take Care that the Laws be faithfully executed.’” Seila Law LLC v. Consumer Fin. Prot. Bureau, 140 S. Ct. 2183, 2191 (2020) (quoting U.S. Const. art. II, § 1, cl. 1; id. § 3). The President’s executive power has long been understood to include “general administrative control of those executing the laws.” Id. at 2197-98 (quoting Myers v. United States, 272 U.S. 52, 163-64 (1926)). Accordingly, the President “has the right to prescribe the qualifications of [Executive Branch] employees and to attach conditions to their employment.” Friedman v. Schwellenbach, 159 F.2d 22, 24 (D.C. Cir. 1946); see also Old Dominion Branch No. 496, Nat. Ass’n of Letter Carriers, AFL-CIO v. Austin, 418 U.S. 264, 273 n.5 (1974) (noting “the President’s responsibility for the efficient operation of the Executive Branch”); Crandon v. United States, 494 U.S. 152, 180 (1990) (Scalia, J., concurring in the judgment) (describing “the President’s discretion-laden power” to regulate the Executive Branch under 5 U.S.C. § 7301); Nat’l  Treasury Emps. Union v. Bush, 891 F.2d 99 (5th Cir. 1989) (upholding President Reagan’s executive order authorizing random drug testing of certain federal employees). Thus, the President, as head of the federal executive workforce, has authority to establish the same immunization requirement that many private employers have reasonably imposed to ensure workplace safety and prevent workplace disruptions caused by COVID-19. 

...

Though the district court asserted, without evidence or citation, that “there is no reason to believe that the public interest cannot be served via less restrictive measures than the mandate” and that “[s]topping the spread of COVID-19 will not be achieved by overbroad policies like the federal-worker mandate,” the public interest is not served by a single Article III district judge, lacking public health expertise and made unaccountable through life tenure, telling the President of the United States, in his capacity as CEO of the federal workforce, that he cannot [impose the vaccine mandate].

Agreed.  The power to supervise the executive branch is vested in the President by Article II, Section 1.  It isn't subject to court review to determine whether in the court's opinion "the public interest [could] be served via less restrictive measures."  That is a court attempting to exercise executive power.

Plus (as both Stern and Judge Higginson note), even if the court were right on the merits, the issuance of a nationwide injunction here is surely beyond the judicial power.  From Judge Higginson's dissent: 

However, even if I were to conclude that the motion should be denied with respect to these plaintiffs, I would grant the  government’s motion insofar as the district court’s nationwide preliminary injunction applies to any person or entity that is not either a named plaintiff or an individual possessing, at the time the complaint was filed, bona fide indicia of membership in one of the plaintiff organizations. As we recently explained, nationwide injunctions “can constitute ‘rushed, high-stake, low-information decisions,’ while more limited equitable relief can be beneficial.” Louisiana v. Becerra, 20 F.4th 260, 264 (5th Cir. 2021) (quoting Department of Homeland Sec. v. New York, 140 S. Ct. 599, 600 (2020) (Gorsuch, J., concurring in the grant of a stay)); see also Trump v. Hawaii, 138 S. Ct. 2392, 2425 (2018) (Thomas, J., concurring) (observing that nationwide injunctions “are beginning to take a toll on the federal court system—preventing legal questions from percolating through the federal courts, encouraging forum shopping, and making every case a national emergency for the courts and for the Executive Branch”). [also citing Samuel L. Bray, Multiple Chancellors: Reforming the National Injunction, 131 Harv. L. Rev. 417, 421, 424 (2017)].

Even if one credits my colleague Mila Sohoni's defense of nationwide injunctions in some cases, this seems clearly not one of those cases.  The judge has no authority to go beyond the relief necessary to protect the plaintiffs, and I cannot imagine how a nationwide injunction is needed to protect the plaintiffs in this case (again, even assuming they are right on the merits).

So Stern's outrage seems justified in this instance.  I don't recall, though, any similar outrage from him regarding nationwide injunctions overturning exercises of executive discretion during the Trump administration.

02/13/2022

Joseph Kimble: Dictionary Diving in the Courts
Michael Ramsey

Joseph Kimble (WMU–Cooley Law School) has posted Dictionary Diving in the Courts: A Shaky Grab for Ordinary Meaning (22 Journal of Appellate Practice and Process (2022 forthcoming)) (54 pages) on SSRN.  Here is the abstract:

This article examines courts’ use and misuse of general (lay) dictionaries. It is unique in several respects: (1) I believe it is the first to collect data on the use of dictionaries from a court’s beginning—in this instance the Michigan Supreme Court from 1845 until 2020. The numbers are startling. And they correspond with the rise in textualist methods of interpretation. (2) It catalogues 15 ways in which this court has has misused dictionaries. Those same kinds of misuses would surely appear in cases from other jurisdictions. (3) It collects comments from lexicographers themselves on courts’ use of dictionaries. (4) It explains in some detail why resorting to dictionaries is linguistically misguided. (5) It collects and distills, at the end, the (scathing) scholarly commentary.

02/12/2022

Vasan Kesavan on the Vice President's Powers
Michael Ramsey

Seth Barrett Tillman reminded me of this classic article by originalist writer Vasan Kesavan, Is the Electoral Count Act Unconstitutional?, 80 N. Carolina L. Rev. 1653 (2002), which anticipates some of the current issues relating to the Vice President's power (see here and here).

Among other things, the article asks whether the Vice President counts the electoral votes (recall that under the Twelfth Amendment "The President of the Senate [i.e., the Vice President] shall, in the presence of the Senate and the House of Representatives, open all the certificates and the votes shall then be counted").  Kesavan says this does not in itself empower the Vice President to count the votes (contra John Eastman), and on further reflection that seems right to me.  We should conclude that the passive voice ("the votes shall then be counted") is there for a reason, and the most evident reason is to not specify who counts.  If the intent was to constitutionally designate the Vice President, it would have been easy to say "the President of the Senate shall then count the votes."

Kesavan next says that if the Constitution doesn't specify who counts, Congress can make that determination.  I agree with that too.  The necessary-and-proper power gives Congress power to carry into execution the power to count, including specifying who is to do it.

Finally, Kesavan says that Congress cannot specify the Vice President as the person who counts.  Here I disagree (and thus would defend this part of the Electoral Count Act).  I see no textual limit on Congress' power to decide who counts.  Kesavan says there is an implied constitutional limit on conflicts of interest that prevents Congress from vesting the counting power in the Vice President (who may be a candidate).  That's way too much implication for me.  The Constitution creates potential conflicts of interest in lots of places.  If Congress is worried about a conflict of interest here (and maybe it should be), it can vest the counting power elsewhere, or (as the Electoral Count Act does) put substantial limits on it.

At the end of the section (pp. 1709-1710), Kesavan takes up a question that implicates the Vice President's tie-breaking power:

A final consideration is whether the President of the Senate has a vote in the counting function when questions arise. Although the counting of electoral votes takes place in the presence of the President of the Senate, the President of the Senate participates no more in the counting function than she participates in trial of impeachment--in neither case does the Vice President have a vote. The Constitution carefully circumscribes the participation of the Vice President in the business of the Senate: “The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided.” The joint convention of the Senate and House of Representatives--assembled for the purpose of the electoral count--is most decidedly not the Senate. To be sure, the Electoral Count Act provides that, upon any objection to an electoral vote, the Senate shall separately withdraw to consider the objection. Notwithstanding constitutional objections to this bicameralism, neither textual nor structural reasons suggest that the President of the Senate's tie-breaking vote in the Article I business of the Senate applies to any Article II business of the Senate in counting electoral votes.

The first part of this paragraph seems fine.  But the last part seems unsupported.  Kesavan assumes that the Vice President's tie breaking power relates only to "the Article I business of the Senate" (anticipating Laurence Tribe's recent argument relating to appointments).  But Kesavan provides no reason to think the tie-breaking power is limited to "Article I business."  He says there is no textual reason to think the power extends beyond Article I -- but I think instead that because the text has no such limit, one should not be implied.

In a long textual footnote (note 246), he continues:

As a related matter, it is not at all clear that the Vice President may cast a tie-breaking vote in a contingency election for Vice President in the Senate should there be no winner under the electoral college mode of vice presidential election. U.S. Const. amend. XII provides:

The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice.

...

There are some very good reasons to seriously doubt that the Vice President could cast such a tie-breaking vote. As a textual matter, the Vice President is not a “Senator” and the Twelfth Amendment ostensibly requires a majority of the whole number of Senators--today, fifty-one Senators. If there is no majority of Senators in a contingency election for Vice President in the Senate, the Senate would have to choose again. ...

Agreed.  The textual analysis is conclusive.  The Vice President is not a Senator, and a "majority of the whole number [of Senators]" is required.  But then he adds, somewhat tentatively:

Finally, if the theory is that the Vice President's power to cast tie-breaking votes only applies to Article I business (legislation and the internal matters of the Senate, including the election of Senate officers and the appointment of Senate committees) and not to Article II or Twelfth Amendment business, then it would also follow that the Vice President would not have a tie-breaking vote under the Treaty Clause or the Appointments Clause, which both appear in Article II. See U.S. Const. art. II, §2, cl. 2. This appears to be the case, reinforcing the arguments above. It is not possible for the Vice President to cast a tie-breaking vote with respect to treaties which require a two-thirds majority of Senators, see id., but it is possible for the Vice President to do so with respect to presidential nominations under the Appointments Clause, which only require a majority of Senators. Notwithstanding, Alexander Hamilton intimated early on that the Vice President could not cast a tie-breaking vote on presidential nominations under the Appointments Clause. See The Federalist No. 69, at 389 (Alexander Hamilton) (Clinton Rossiter ed., Mentor 1999) (1961) (“In the national government, if the Senate should be divided, no appointment could be made; in the government of New York, if the council should be divided, the governor can turn the scale and confirm his own nomination.”). The lack of mention of the Vice President is surprising given that he discussed the Vice President (and her tie-breaking vote) in the immediately preceding essay, see The Federalist No. 68, at 47 (Alexander Hamilton) (Clinton Rossiter ed., Mentor 1999) (1961), but perhaps he thought that the Vice President would not necessarily act in accordance with the President's interests (recall that prior to the development of the party system, the Vice President was merely the runner-up in the presidential election and oftentimes the chief opponent of the President). Only once in our nation's history, to my knowledge, has a Vice President cast a tie-breaking vote on a presidential appointment. In 1832, President Andrew Jackson nominated Senator Martin Van Buren as ambassador to Great Britain. The Senate split evenly, and Vice President Calhoun broke the tie by voting against President Jackson's nomination. ... Vice President Calhoun's negative vote was unnecessary of course, as a tie vote is widely considered to be defeated, though some accounts treat his vote as the “deciding vote.”

I disagree for multiple reasons.  First, the theory preventing the Vice President from breaking a tie on the Senate's selection of a Vice President is not that the tie-breaking power is limited to Article I.  Rather, it's that the text of the Twelfth Amendment specifically rejects the power in that situation (as Kesavan argues). But the Twelfth Amendment language is different from the appointments clause.  Second, the only non-textual support he gives for excluding the tie-breaking power from appointments votes is the quote from Hamilton.  But that quote is unpersuasive for the reasons discussed I discussed in previous posts.  And Kesavan himself anticipates a key objection: Hamilton didn't mention the tie-breaking power because he was talking in Federalist 69 about the President's power, not the Vice President's power.  As Kesavan says, "perhaps he [Hamilton] thought the Vice President would not necessarily act in accordance with the President's interests" -- I'm sure that's what Hamilton thought, no "perhaps" about it.  Under the original design and prior to the party system, the Vice President would most likely be a rival of the President, not an ally.

In any event, it's an interesting and thoughtful paper, even if I don't agree with some of it, and impressively relevant today for something written 20 years ago.

SETH BARRETT TILLMAN comments:

You wrote: "As Kesavan says, "perhaps he [Hamilton] thought the Vice President would not necessarily act in accordance with the President's interests" -- I'm sure that's what Hamilton thought, no 'perhaps' about it."

You might be correct, but you should not be "sure." We don't know what Hamilton thought. He is not here to ask for clarification, nor did he clarify his views in his subsequent writings. We can only make reasonable inferences. One possible inference is that he simply erred. That's my view. See Seth Barrett Tillman, The Federalist Papers as Reliable Historical Source Material for Constitutional Interpretation, 105 W. Va. L. Rev. 601 (2003), pages 612-13. We all make mistakes: so could and did Hamilton from time to time. 

02/11/2022

Chad Squitieri: Towards Nondelegation Doctrines
Michael Ramsey

Recently published: Chad Squitieri (independent), Towards Nondelegation Doctrines (86 Missouri L. Rev. (2022)).  Here is the abstract: 

When discussing the nondelegation doctrine, courts and scholars frequently refer to Congress’ “legislative power.” The Constitution, however, speaks of no such thing. Instead, the Constitution vests a wide variety of “legislative powers” (plural) in Congress, including the powers to “regulate commerce,” “declare war,” “coin money,” and “constitute tribunals.” Shoehorning Congress’ diverse array of powers into a one-size-fits-all nondelegation doctrine has necessitated the development of the vaguely worded “intelligible principle” test. Unsurprisingly, that malleable test has failed to produce a judicially manageable standard. In response, this Article proposes that the nondelegation doctrine be transformed into a series of nondelegation doctrines, each corresponding to one of Congress’ distinct powers. Adopting such an approach can lessen the risk that reviving the nondelegation principle – a task the current Supreme Court has expressed an interest in taking on – will result in a complete reworking of the modern administrative state.

And from the introduction (footnotes omitted):

In this Article, I offer a two-part proposal. First, the single nondelegation doctrine should be replaced with a series of nondelegation doctrines, each applying to a different congressional power. Second, each nondelegation doctrine should be developed by interpreting specific constitutional provisions to mean what the public originally understood them to mean at the time the provisions were enacted.

To be sure, one need not adopt the second part of my proposal to adopt the first. Those who object to interpreting text pursuant to its original public meaning, and those who prefer other nondelegation tests – such as the intelligible principle or important subjects tests – can accept the first part of my proposal alone. Put differently, one might be convinced of the benefits of transforming a single doctrine into multiple doctrines, but decide to develop those multiple doctrines by using different interpretive methods—such as a law and economics method, or a method of interpretation pursuant to which text is better able to take on new meaning over time. Those alternative methods could vastly improve the current nondelegation doctrine. But in this Article, I use a historical based approach to develop multiple doctrines—in part because that approach might be attractive to the current Supreme Court (which seems poised to revive the nondelegation principle in potentially problematic ways), and in part because recent nondelegation scholarship has exhibited a focus on historical evidence.

Fully developing nondelegation doctrines for each of Congress’ powers will require more historical research than can be offered here. Entire articles can (and should) be dedicated to determining the original public meaning of each power. I invite such scholarship by introducing and defending the idea that the original public meaning of each of Congress’ powers speaks not only to the subjects Congress can address (e.g., what is “commerce” and “war”), but also to the extent Congress can delegate its authority to address those subjects (e.g., who can “regulate” commerce or “declare” war).

Rather than review all delegations under a single nondelegation doctrine, different delegations should be reviewed under different nondelegation doctrines. And the relevant doctrines should not be derived from judicial dicta or the latest political science literature. Instead, the doctrines should be derived from the Constitution’s text and history. Thus, when it comes to the “legislative powers” vested in Congress by Article I, Section 8, the relevant nondelegation question concerns whether a particular delegation would have been considered a “necessary and proper” means “for carrying [the relevant Article I, Section 8 power] into execution,” as understood by the objective reader in 1788. By comparison, when it comes to the power vested in Congress by the Fifteenth Amendment, the relevant nondelegation question includes a consideration as to whether an objective reader in 1870 would have understood a particular delegation to have been an “appropriate” way for Congress to “enforce” the Fifteenth Amendment’s voting rights.

Parts II.A and II.B will discuss the current state of the nondelegation doctrine by briefly describing the intelligible principle test and its failure to produce a judicially manageable standard. Part II.C will then situate this Article within an active scholarly debate discussing the existence (or nonexistence) of the nondelegation doctrine at the time of the Founding. That debate has helpfully uncovered important evidence exhibiting narrow (and broad) delegations made by early Congresses. This evidence is helpful, but its limits must be recognized: the evidence only speaks to particular delegations of particular powers. By attempting to leverage power-specific evidence into larger arguments in favor of the existence (or nonexistence) of a single nondelegation doctrine, scholars on both sides of the present debate go too far.

In response to the present debate, Part III proposes the development of multiple nondelegation doctrines. These text-centric doctrines require a closer parsing of the relevant text and history than has been called for in present literature. In proposing nondelegation doctrines, Part III provides textual analyses of Congress’ original legislative powers, other powers vested in Congress by the Constitution as originally ratified, and additional powers vested in Congress by constitutional amendments. Each of those powers requires the application of a different nondelegation doctrine.

Finally, Part IV provides three defenses of nondelegation doctrines...

02/10/2022

Brian Leiter: Realism About Precedent
Michael Ramsey

Brian Leiter (University of Chicago Law School) has posted Realism About Precedent (forthcoming in T. Endicott, H. Kristjansson, & S. Lewis (eds.), Philosophical Foundations of Precedent (Oxford University Press)) (16 pages) on SSRN.  Here is the abstract:

In jurisdictions with a doctrine of precedent, later courts are bound only by those earlier decisions which are “on point” or “the same in relevant respects” to the case currently before the court. Since cases are never identical in all particulars, this always requires figuring out which general categories that subsume the particulars of different cases are the relevant ones: I will call this “relevant similarity” in what follows. Relevant similarity is typically assessed in light of either the reasons the earlier court actually gave for the decision or the reasons that can be imputed to the earlier court based on the legal decision that court reached. Realists about precedent—from Karl Llewellyn to Julius Stone to this author—are skeptical that precedent really binds courts. Realists are skeptical not because they believe judges improperly disregard binding precedents; the worry, rather, is that judges can often properly distinguish precedents that might impede the decision they want to reach on moral or political grounds. They can do so precisely because judgments of “relevant similarity” that are central to distinguishing are largely unconstrained by law. First, such judgments depend on inchoate and sometimes unconscious norms that govern general classifications of particulars, about which reasonable people can and do differ, and about which the law is mostly silent. Second, given the range of permissible characterizations of the earlier court’s reasons in many instances, the requirement that the judgment of relevant similarity or difference be consistent with those reasons imposes only a limited constraint on the general classification employed.

Agreed.  This is why the idea of logical reasoning from precedent as an alternative to the originalism/living constitutionalism dilemma is a false alternative.  Logical reasoning from precedent, in any reasonably contested case, is (overtly or covertly) dependent on moral intuitions about what Professor Leiter calls "relative similarity."  See also my discussion here.

(Via Brian Leiter's Law School Reports.)

02/09/2022

David Gans: Reproductive Originalism
Michael Ramsey

David Gans (Constitutional Accountability Center) has posted Reproductive Originalism: Why the Fourteenth Amendment’s Original Meaning Protects the Right to Abortion (SMU Law Review Forum (forthcoming 2022)) (18 pages) on SSRN.  Here is the abstract:

The conventional wisdom among conservative originalists is that the right to abortion has no basis in the Constitution’s text and history. This Essay demonstrates that this originalist attack on Roe v. Wade and nearly a half-century of Supreme Court precedent is wrong. The text and history of the Fourteenth Amendment, in fact, protect unenumerated fundamental rights, including rights to bodily integrity, establish a family, and reproductive liberty. The right to abortion flows logically from these fundamental rights that the Fourteenth Amendment was written to protect. The Supreme Court should recognize this when it decides this Term’s blockbuster case, Dobbs v. Jackson Women’s Health Organization, a challenge to a Mississippi law banning abortions after fifteen weeks of pregnancy.