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18 posts from March 2023


The Electoral Vote Count and Inauguration Day [Updated]
David Weisberg

Andrew Hyman has written an interesting post concerning another interesting post he had initially decided not to post.  (I hope that’s clear.)  I’d like to comment on what I believe to be an error in that formerly unposted post.  Before commenting, however, I want to echo Mr. Hyman’s praise of Vice President Pence’s actions on January 6, 2021: He did the right thing.

Now to my comment.  Mr. Hyman notes correctly that Section 1 of the Twentieth Amendment fixes noon on January 20 as the time “the terms of the President and Vice President shall end[.]”  But he goes on to say that “the Twentieth Amendment … clearly sets a deadline of January 20” for the completion of the counting of electoral votes.  I do not think that is correct; fixing the time of expiration of the terms of office of President and Vice President is not the same thing as setting a deadline for finishing the electoral vote count.  In fact, the Twentieth Amendment impliedly contemplates that the electoral vote count might not be completed by January 20.

Section 3 of the Twentieth Amendment provides, in relevant part:

If … a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President elect nor a Vice President elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified.

It is very clear that the amendment takes into account a situation in which, on the 20th, the president “shall not have been chosen.”  It also contemplates that, on the 20th, neither a president nor a vice president might have “qualified” to serve.  Surely one possible reason for the failure of a president to be chosen, or the failure of both a president and a vice-president to be qualified, would be some dispute over the counting of electoral votes that prevents that count from being completed by the 20th.

The Congress, as authorized by Section 3, has declared who in such a case shall act as president.  The Presidential Succession Act of 1947 provides that the Speaker of the House is next in line for the presidency.  Moreover, Section 2 of the Twentieth Amendment provides that Congress shall meet every year beginning January 3 at noon, which time and date Congress has not altered.  So, the House of Representatives has plenty of time (which was needed this year) before the 20th to choose a Speaker. 

If, on the 20th, there is no qualified president or vice president, the person who had been chosen as Speaker would properly be sworn in to act as president.  Under the Presidential Succession Act, the person acting as president shall serve until such time as “a qualified and prior-entitled individual is able to act[.]”  (3 U.S.C. Sec. 19(d)(2).)  Therefore, nothing in the Twentieth Amendment should be understood as setting a “deadline” for the completion of the electoral vote count.
UPDATE - ANDREW HYMAN COMMENTS:  David Weisberg and I apparently agree that VP Pence’s term of office had to expire on January 20, 2021.  To me, that implies he had to fulfill any mandatory duties by that date, such as opening or counting electoral votes.  One might alternatively argue that the VP could simply hand over any such duties to the president pro tempore of the Senate, but that seems a bit slippery; I am skeptical that any constitutional actor can avoid a mandatory duty by merely saying the next guy can do it.  So I would interpret “President of the Senate” in this context to mean the same person to whom the electoral votes are transmitted "sealed to the Seat of the Government of the United States, directed to the President of the Senate."


The Only Time I Withdrew a Blog Post from the Originalism Blog Pre-Publication Was on January 5, 2021
Andrew Hyman

The historic events at the U.S. Capitol on January 6, 2021 continue to be a subject of much interest, both legally and otherwise, so perhaps some readers might like to see a blog post that I withdrew the day before.  I’ll quote it in full now, and then add a few comments (by the “Electoral Vote Act” I meant the Electoral Count Act).
How Slowly Can the Vice-President Perform His Role Regarding the Electoral Vote Count and Must He Shut Down Dilatory Tactics? 
The Twentieth Amendment sets January 20 as Inauguration Day, so I’m not sure the Vice-President or members of Congress would accomplish much by stretching out the electoral vote count until then.  It would be foolish to do such an extraordinary thing merely for the sake of protest, or to delay the inevitable.  But it’s possible. 
This year, Congress has adopted rules setting January 6 for the start of the electoral vote count, and the clear suggestion is that the count should be finished on that date too, but the rules Congress has adopted do not flatly require a speedy or expeditious vote count, or set a midnight deadline. 
Maybe Congress could have required a speedy vote count, but they apparently did not.  Maybe Congress could now amend the rules to speed up the Vice President, but they have not done so as yet.  And maybe the Vice President has no intention of extending the vote count past January 6, or allowing any dilatory tactics that would have that effect. 
Besides the Constitution itself and the rules linked above that were adopted this year, another relevant law is the Electoral Vote Act, and it too does not require that the job be done by midnight on January 6.  Here’s the pertinent section titled “Counting Electoral Votes in Congress.”  It says that if the joint session of Congress splits up into sessions of the two houses then “When the two Houses have voted, they shall immediately again meet....” (emphasis added) so there’s no opportunity for any delay in reconvening after voting.  The word “immediately” (or a synonym) is distinctly absent as to other stages of the process, though.  A related question is whether members of the joint session can use dilatory tactics, and whether the Vice President would be under any duty to stop them.  Certainly delay or slowness would not be constitutionally permissible if it threatens to violate the Twentieth Amendment which clearly sets a deadline of January 20.  The next section of the Electoral Vote Act says, “if the counting of the electoral votes and the declaration of the result shall not have been completed before the fifth calendar day next after such first meeting of the two Houses, no further or other recess shall be taken by either House.”  That raises the familiar question of what a “recess” means, and I doubt it includes a mere adjournment from day to day. 
I suppose that one reason for delay might be to give state legislatures time to gather more information, further audit their elections, and perhaps try to change their electoral votes if they uncover facts that might justify doing so.  According to ballotpedia.org, the Wisconsin legislature reconvened on January 4, the Pennsylvania legislature on January 5, Arizona and Georgia on January 11, Michigan on January 13, and Nevada’s legislature on February 1 (too late to do anything).  More than a month has already passed since the election on November 3, so the Vice President and members of Congress need to consider whether delaying completion of the electoral vote count is really likely to make any difference in the final result, and whether such an extraordinary move would increase or decrease the actual or perceived legitimacy of whoever is sworn in on January 20.
So that’s what I wrote and withdrew the day before January 6, 2021 partly because I did not want to embolden anyone to delay the electoral vote count.  In retrospect and in the context of originalism, I think this old unseen blog post of mine was pretty much legally correct.  Back on January 6, 2021 Congress had not yet amended the Electoral Count Act, and it was the old language of that Act I relied upon.  In contrast, the amendments of December 22, 2022 require that the vice president cannot solely determine, accept, reject, or otherwise adjudicate disputes over electors.  For centuries before 2022, vice-presidents had been free to count electoral votes in a non-mechanical way, and had been unilaterally deciding some disputes about it. 
While Vice President Pence probably had power to slow down the electoral-vote-count at least under dire circumstances of obvious massive vote fraud, Pence likely did the right thing by refusing to do so here, because those circumstances did not exist.  While Pence heroically stood his ground and did his job, I do not agree that he was powerless to slow down the vote count, at least if those circumstances had justified it. 
No doubt President Trump had understandable grievances, but they did not amount to an appearance of obvious and massive vote fraud as of January 6, 2021.  Perhaps his leading legal grievance was that the U.S. Supreme Court had turned away a lawsuit from the state of Texas on December 11, 2020 which prevented the facts from being explored carefully and quickly in that central legal forum, and the ensuing events might have then been different. I’ve already written on this blog why I agree with what Justices Thomas and Alito said about that Texas lawsuit.  While Texas may not have had standing to attack the validity of statutes enacted by other states, Texas should have had standing to sue other states for not following their own statutes. 
I agree with Michael Ramsey that Pence likely lacked “power to disregard electoral votes which he thinks are invalid.”  But Trump was not demanding that, he was not simply pressuring Pence to disregard electoral votes, per the New York Times reporting on January 5, 2021: “Mr. Trump is now pressuring Mr. Pence to take matters into his own hands to delay the vote tabulation or alter it in Mr. Trump’s favor.”  Delay is something quite distinct from alteration, and slowing the electoral vote count was probably in Pence’s power, but (in my view) Pence heroically decided against delay.  Pence did so in the face of considerable violence as well as pressure from the Secret Service to get him out of the Capitol; massive vote fraud was not obvious at that time, and no states were self-reporting any massive vote fraud to Congress. 
As to the constitutionality of the Electoral Count Act either before or after the 2022 amendments, that Act places limits upon the Vice President as the presiding officer.  The rules of the U.S. Senate have for centuries limited the VP as presiding officer of the Senate, and limiting the VP as presiding officer of a joint session seems like pretty much the same thing. For anyone interested in studying the 2022 Amendments to the Electoral Count Act, a good informal place to start would be the essay by Professor Derek Muller three months ago praising those amendments.


John McGinnis and Michael Rappaport: An Originalist Approach to Prospective Overruling
Mike Rappaport

John McGinnis (Northwestern) and Michael Rappaport (USD) have posted An Originalist Approach to Prospective Overruling (Notre Dame Law Review 2023) on SSRN.  Here is the abstract: 

Originalism has become a dominant jurisprudential theory on the Supreme Court. But a large number of precedents are inconsistent with the Constitution’s original meaning and overturning them risks creating enormous disruption to the legal order. This article defends a prospective overruling approach that would harmonize precedent with originalism’s rise and reduce the disruption from overrulings. Under prospective overruling, the Court declares that an existing statute violates the original meaning but will continue to be enforced because declaring it unconstitutional would produce enormous costs; however, future statutes of this type will be voided as unconstitutional. Under our approach, the Court would employ a rule based doctrine for gradually returning our constitutional law to the original meaning without upsetting the reliance interests that stare decisis rightly protects.

While originalists, like Justice Antonin Scalia, have been extremely critical of the prospective overruling that the Warren Court used to implement its constitutional revolution, we here defend an approach to prospective overruling that would avoid these originalist criticisms. We show that prospective overruling is a legitimate form of the common law of precedent and thus encompassed by the judicial power. We also show that prospective overruling is not dicta that runs afoul of the Constitution’s case or controversy requirement. In many cases, the substantive constitutional question is so intertwined with the question of precedent that a decision on a provision’s original meaning is necessary to decide the stare decisis issue. In other cases, the resolution of the substantive question should be treated as a holding, even if not strictly necessary to the result, because the question was answered using a method that appears designed to resolve the case. We then illustrate how and when prospective overruling should be applied by reference to cases involving the Commerce Clause, the Nondelegation Doctrine, and the Treaty Clause.


Programming Note: Blog Holiday
Michael Ramsey

Programming note: I will be taking a further sabbatical-related blog holiday for most of the rest of this month.  I plan to return in April.

Geoffrey Heeren: Rethinking the Migration or Importation Clause
Michael Ramsey

Geoffrey Heeren (University of Idaho College of Law) has posted Immigration Law and Slavery: Rethinking the Migration or Importation Clause (Wisconsin Law Review, Vol. 2023, No. 4, 2023) (56 pages) on SSRN.  Here is the abstract:

The traditional account of the origins of federal immigration law mostly glosses over its deep connection to slavery. An examination of that connection calls the constitutional foundation for immigration law into question, alters the calculus for judicial review of federal immigration action, reframes our understanding of federalism, and lays bare the nation’s exploitative dependence on immigrant labor. This article makes this paradigm shift by focusing on a long-neglected textual source for federal immigration power: the Migration or Importation Clause of Article I, Section 9, Clause 1 of the Constitution. Scholars have almost uniformly discounted the Migration or Importation Clause as a source for federal immigration power because of its connection to slavery. In sharp contrast, this article contends that the Migration or Importation Clause makes sense as a source for the federal immigration power because of its connection to slavery, which was deeply intertwined in the early Republic with immigration.

The history of the Constitutional Convention reveals that the framers specifically discussed slavery and immigration together and were aware that their chosen wording for the Migration or Importation Clause would apply to free immigrants. An originalist understanding of the Clause therefore supports a federal immigration power under the Commerce Clause, which was the presumptive basis for regulating the slave trade after the 1808 date set out in the Migration or Importation Clause.

The legacy of the Migration or Importation Clause continues to be felt in immigration law. Slavery was an atrocity that inflicted intergenerational harm on blacks; in contrast, immigrants have often enjoyed opportunities and passed on wealth. Nonetheless, the current structure of immigration law perpetuates nineteenth century labor norms for the millions of undocumented workers who under threat of deportation do much of the nation’s most difficult work for lower pay and with fewer legal protections than documented workers. Reckoning with the ties between immigration law and slavery offers an opportunity to reflect on the failures of this system, and also reveals a redemptive path forward. In the face of an exploitative system, the strategies and logic of abolitionism offer hope for a better immigration future.

In my (tentative and evolving) view of the source of federal power over immigration, I agree that (1) the migration or importation clause strongly implies that Congress has power over voluntary migration as well as importation of slaves and (2) that the commerce clause is the likely source of much of this power, as the founding generation presumably thought that most migration would be by commercial ships.  Locating the immigration power solely in the commerce clause, though, may suggest that Congress has no power over voluntary independent migration across land borders.  That may just be a gap in the Constitution's allocation of federal power, as the drafters likely didn't envision much overland migration into the U.S. given the founding-era borders.  And in the absence of federal power, the power would go to the states.  But it's also worth considering Rob Natelson's suggestion that Congress' power over migration also arises from the power to define and punish offenses against the law of nations (his contention is that entering sovereign territory without permission of the sovereign was such an offense).


Ilan Wurman: Importance and Interpretive Questions
Michael Ramsey

Ilan Wurman (Arizona State University  Sandra Day O'Connor College of Law) has posted Importance and Interpretive Questions (Virginia Law Review, forthcoming) (66 Pages) on SSRN.  Here is the abstract:

In its past term, the Supreme Court formalized what it calls the major questions doctrine. The doctrine, as currently formulated, appears to require a clear and specific statement from Congress if Congress intends to delegate questions of major political or economic significance to agencies. The doctrine has been almost universally assailed on the right by scholars who argue that the doctrine is inconsistent with textualism and on the left by those who claim it is a recently invented, functionalist tool devised to reach anti-administrativist results. One can explain at least some of the cases, however, in a way that constructs a coherent doctrine in which importance has a significant but narrow role in resolving interpretive questions involving ambiguity or uncertainty. Thus understood, such a doctrine could be defensible, if not as a substantive canon, then as a kind of linguistic canon. Unlike other linguistic canons, such a canon would be about how people and lawmakers use language to accomplish results in a circumscribed range of contexts—namely, the delegation of important authorities, whether to other private actors, to government actors in Constitution, or to government actors in the executive department. But unlike substantive canons, it would not relate to a substantive value encoded in the Constitution or in longstanding tradition. Existing empirical work about how legislators legislate, and insights from the philosophy of language, suggest that such a doctrine may be consistent with textualism, and historical research further reveals that a canon of this type may be a longstanding feature of constitutional, contract, and statutory interpretation in related contexts. More provocatively, these same intuitions about importance may explain some substantive canons that are difficult for textualists to justify.


Fred Smith on Mila Sohoni on Procedural Originalism
Michael Ramsey

At Jotwell, Fred O. Smith Jr. (Emory): Originalism's Procedural Puzzle (commenting on Mila Sohoni, The Puzzle of Procedural Originalism, 72 Duke L.J. 941 (2023)).  From the introduction: 

Here is the puzzle. On one hand, various species of originalism have ostensibly come to dominate American constitutional law. “We are all originalists,” Justice Elena Kagan contended during her 2010 confirmation hearings. “Is originalism our law?” William Baude asked in widely cited 2015 Columbia Law Review article. (His answer was a qualified and nuanced “yes.”) And in the last couple of years, originalism at the Supreme Court has become broad and deep. Broad, in that originalist arguments have proven resistant to countervailing methodological tools such as precedent or even text, allowing originalist arguments to prevail in a wider range of constitutional settings. Deep, in that on issues such as gun rights, the Court has demanded more and more in the way of precise historical analogies from the Founding (or the Second Founding).

On the other hand, Mila Sohoni observes that despite originalism’s rise, one area has been mostly absent from originalism’s reach—procedure. Sohoni focuses on a body of law she terms “constitutional civil procedure,” explaining that a number of important questions in civil procedure turn on interpretations and constructions of constitutional text. Sohoni cabins her analysis to constitutional doctrines that tend to be taught in civil procedure as opposed to courses on constitutional law, federal courts, or remedies. Originalism has barely touched core questions of civil procedure. “It would be tempting to say that all this has been hidden in plain view, but that would only be a half-truth. Civil procedure’s nonoriginalism hasn’t been hidden at all. And yet—until recently—few originalists have faulted procedural law for its infidelity to original meaning.” (P. 992.)

Sohoni offers numerous examples; consider three...

(Via Howard Wasserman at Prawfsblawg.)


2023 Joseph Story Award Goes to Professor Jennifer Mascott
Michael Ramsey

Originalist scholar Jennifer Mascott (George Mason) is the recipient of the Federalist Society's Joseph Story Award.  From the Society's website:

The Joseph Story Award is given annually to a young academic (40 and under or 10 years on the tenure track or fewer) who has demonstrated excellence in legal scholarship, a commitment to teaching, a concern for students, and who has made significant public impact in a manner that advances the rule of law in a free society. This award is presented during the Federalist Society's Annual Student Symposium.

And from the presentation of the award, by Award Chair Matt Phillips:

Mr. Phillips began by detailing Professor Mascott's scholarly contributions.  Referencing her article "Who Are Officers of the United States?," which he called "an originalist tour de force," Mr. Philips noted that Professor Mascott's "seminal work"situated her at the "forefront of the national debate" on the separation of powers. He said Prof. Mascott is an "intellectual trailblazer" and "stalwart defender of the rule of law." He also pointed out her extensive involvement in the legal profession, including her "incredible thought leadership" as the Co-Executive Director of the Gray Center, Public Member of the Administrative Conference of the United States, and Vice Chair of the Constitutional Law and Separation of Powers Committee within the ABA's Section of Administrative Law and Regulatory Practice, as well as her "tireless public service" at the Office of Legal Counsel in the Department of Justice.

Finally, Phillips described Professor Mascott's strength as a "dedicated teacher and mentor" to her students at Scalia Law. He identified her various roles on campus, including that of faculty director of the law school's Supreme Court and Administrative Law clinics, founder of the Separation of Powers Clinic, and co-professor with two Supreme Court Justices. In the words of her students, she is a "fantastic instructor" and "wonderful person" who "models a commitment to family and takes genuine joy in her profession."

(Via Josh Blackman, the 2018 Story Award winner, at Volokh Conspiracy.)

Professor Mascott's articles include:

Who Are "Officers of the United States"? (Stanford Law Review)

Executive Decisions After Arthrex (Supreme Court Review) (with John Duffy)

Early Customs Laws and Delegation (George Washington Law Review)

Gundy v. United States: Reflections on the Court and the State of the Nondelegation Doctrine (George Mason law Review)

The Dictionary as a Specialized Corpus (BYU Law Review)


New Book: "Female Genius: Eliza Harriot and George Washington at the Dawn of the Constitution" by Mary Sarah Bilder
Michael Ramsey

Recently published: Female Genius: Eliza Harriot and George Washington at the Dawn of the Constitution, by Mary Sarah Bilder (University of Virginia Press 2022).  Here is the book description from the publisher:

In this provocative new biography, Mary Sarah Bilder looks to the 1780s—the Age of the Constitution—to investigate the rise of a radical new idea in the English-speaking world: female genius. Bilder finds the perfect exemplar of this phenomenon in English-born Eliza Harriot Barons O’Connor. This pathbreaking female educator delivered a University of Pennsylvania lecture attended by George Washington as he and other Constitutional Convention delegates gathered in Philadelphia. As the first such public female lecturer, her courageous performance likely inspired the gender-neutral language of the Constitution.

Female Genius reconstructs Eliza Harriot’s transatlantic life, from Lisbon to Charleston, paying particular attention to her lectures and to the academies she founded, inspiring countless young American women to consider a college education and a role in the political forum. Promoting the ideas made famous by Mary Wollstonecraft, Eliza Harriot brought the concept of female genius to the United States. Its advocates argued that women had equal capacity and deserved an equal education and political representation. Its detractors, who feared it undermined male political power, felt deeply threatened. By 1792 Eliza Harriot experienced struggles that reflected the larger backlash faced by women and people of color as new written constitutions provided the political and legal tools for exclusion based on sex, gender, and race.

In recovering this pioneering life, the richly illustrated Female Genius makes clear that America’s framing moment did not belong solely to white men and offers an inspirational transatlantic history of women who believed in education as a political right.

Sounds super interesting -- I had not heard anything about this before.  Also only $29.99, which is pretty reasonable for an academic press book (are academic presses finally trying to sell books?).  And the author promises "lots of pictures."



Donald Dripps: The "Cruel and Unusual" Legacy of the Star Chamber
Michael Ramsey

Donald A. Dripps (University of San Diego School of Law) has posted The "Cruel and Unusual" Legacy of the Star Chamber (Journal of American Constitutional History, forthcoming 2023) (79 pages) on SSRN.  Here is the abstract:

Supreme Court justices have read the “cruel and unusual punishments” clause as prohibiting torturous methods of punishment, prohibiting grossly disproportionate punishments, and/or prohibiting arbitrary discretion over the infliction of the death penalty. All three accounts face familiar and formidable historical challenges. There is general agreement that the founders took the clause from Article 10 of the English Bill of Rights, and that Article 10 repudiated the horrific sentence passed on Titus Oates by the infamous Judge Jeffreys in 1685. Each of the major interpretations fails to account for important pieces of the Oates puzzle.

The methods of punishment inflicted on Oates were two days of horrific flogging, recurring stands in the pillory, and life imprisonment. These methods were not capital, were not unusual in 1685, and were all included in the Crimes Act passed by the First Congress. Oates’s sentence was not, by contemporary standards, disproportionate. His perjuries caused the executions of numerous innocents, quite possibly by torture. By the standards of the times, he deserved hanging.

The Eighth Amendment, however, responded to anti-federalist fears that Congress might adopt torturous methods of capital punishment. Prevailing theories fail to account for the disconnect between what the English provision did and what the American provision meant to do.

This Article argues that prevailing accounts are breathtakingly incomplete. The full story begins not with the flogging of Titus Oates in 1685, but with the abolition of the Star Chamber in 1641. Sentencing Oates, Jeffreys claimed for King's Bench all the Star Chamber's lawless power to determine punishments less than capital. The English Article 10 repudiated this attempt to resurrect the Star Chamber. Then Congress, responding to anti-federalist fears about Congress adopting European-style executions by torture, freighted the "cruel and unusual" language with two additional meanings. The clause now applied to capital, as well as noncapital, penalties. It now also restricted legislative as well as judicial discretion. Synthesizing the English original and the later concerns of the American founders, the Eighth Amendment forbids lawless discretion in both capital and noncapital cases, and torturous methods of punishment. Proportionality was left to the legislature, subject to the powerful check provided by a constitutional requirement of even-handed enforcement.

At a time when the Court is reconsidering longstanding precedents from originalist premises, this account is not only a major advance in the academic literature. It may also be, practically speaking, a matter of life and death.