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31 posts from September 2023


Appropriations Clause Arguments on Monday [Correction: Tuesday] [Updated]
Michael Ramsey

The Supreme Court opens its 2023 term of oral arguments on Monday , with the leading case of originalist interest being Consumer Financial Protection Bureau v. Community Financial Services Association of America, Limited [correction: actually argued Tuesday].   Here is the question presented:

Whether the court of appeals erred in holding that the statute providing funding to the Consumer Financial Protection Bureau, 12 U.S.C. § 5497, violates the appropriations clause in Article I, Section 9 of the Constitution, and in vacating a regulation promulgated at a time when the Bureau was receiving such funding.

At SCOTUSblog, Amy Howe has this preview: Consumer watchdog funding fight goes before justices.  From the introduction: 

In the aftermath of the 2008 financial crisis, Congress consolidated the task of enforcing federal consumer finance laws into one agency. It created the Consumer Financial Protection Bureau to protect consumers in the marketplace and, in part, regulate predatory financial products, like the high-risk mortgages that had contributed to the crash. As part of its efforts to foster the agency’s independence, funding for the CFPB would come not from the annual appropriations process in Congress, but instead from the Federal Reserve, which itself is funded through the fees that it charges depositors for the services that it provides. On Oct. 3, the Supreme Court will hear oral argument in a case brought by groups representing the payday-lending industry, who argue that this funding scheme is instead the CFPB’s fatal flaw.

The stakes in the case are high. The Biden administration, which represents the CFPB, warns that a ruling for the challengers could call into question not only the payday-lending rule at the center of this case but also a wide swath of other regulations that protect consumers. And more broadly, the case is the first of several on the court’s docket this term in which the justices will weigh in on the division of authority between the three branches of government, as well as the power of administrative agencies.

And from later on:

The court of appeals pointed to Article I, Section 9 of the Constitution, known as the appropriations clause, which instructs that “[n]o money shall be withdrawn from the Treasury, but in Consequence of Appropriations made by Law.” In this case, the court of appeals contended, the CFPB’s funding is “double-insulated” from Congress’s power under the appropriations clause: Not only does the CFPB receive its funding from the Federal Reserve, rather than through the normal appropriations process, but Congress does not determine the amount of that funding. Instead, the CFPB requests the amount that it needs from the Fed and automatically receives the money, subject to a cap imposed by Congress. “Whatever the line between a constitutionally and unconstitutionally funded agency may be, this unprecedented arrangement crosses it,” the court of appeals determined, because the CFPB is “no longer dependent and, as a result, no longer accountable to” Congress.

Turning to the question of the remedy for the violation of the appropriations clause, the court of appeals concluded that the CFPB could not have issued the payday-lending rule without its unconstitutional funding scheme. As a result, the court of appeals vacated the rule. The Biden administration came to the Supreme Court in November, and the justices agreed to weigh in.

As noted earlier, Christine Kexel Chabot (Marquette) has this originalist defense of the financing arrangement: The Founders' Purse (Virginia Law Review, forthcoming).  Here is the abstract:

This Article addresses a new and impending war over the constitutionality of broad delegations of spending power to the executive branch. In an opening salvo, the Fifth Circuit held that Congress unconstitutionally delegated its power of the purse to the Consumer Financial Protection Bureau, and the Supreme Court has agreed to review its decision this term. Notwithstanding the fact that Congress authorized the Bureau’s budget “by law,” the Fifth Circuit held that this law violated the Appropriations Clause because it granted the Bureau substantial budgetary independence in two key respects: first, it afforded the Bureau broad discretion to self-direct its budget for an unlimited duration, and second, it granted the Bureau permanent funds that were drawn from interest-based earnings of the Federal Reserve system. The Fifth Circuit supported this conclusion with an ambitious but highly selective originalist interpretation of Article I, section 9’s Appropriations Clause. Defenders of the Fifth Circuit’s ruling have likewise justified its holding with formalist and originalist arguments that the Bureau’s budgetary independence amounts to an unconstitutional delegation of legislative spending power. The broader debate about delegation of spending power extends beyond the Bureau and calls into question laws awarding similar budgetary independence to financial regulators such as the Federal Reserve as well as the Biden Administration’s ability to forgive student loans (and spend debt owed the government) “without specific statutory authorization.”

Originalist claims to a nondelegation doctrine that limits the duration, generality, and source of spending in laws passed by Congress have missed a critical body of contrary historical evidence introduced by this Article. First, records of the Constitutional Convention show that the delegates approved new and durable congressional revenue and spending powers to support the U.S. government and its credit while declining proposals for general temporal limitations on Congress’s revenue and spending powers. Second, early congresses repeatedly put these new and durable spending powers to use in laws that bypassed all three proffered limitations on duration, generality, and source of funding. To support U.S. credit, and upon the recommendation of Secretary of the Treasury, Alexander Hamilton, early congresses granted an agency known as the Sinking Fund Commission power to self-direct a permanent fund that was drawn from interest-based earnings on debt held by the United States. To establish an affordable new federal government, early congresses also funded a majority of federal officers including core law enforcement officials and even a new agency through permanent and independently directed fees that were paid by private parties. This history shows that Article I, section 9 means what it says and requires only that Congress authorize spending “by law.” Critics who have questioned the constitutionality of broad delegations of spending power have strayed from the lessons of both text and history.

UPDATE:  The SCOTUSblog summary of the argument is here: Court divided over funding mechanism for consumer watchdog.  At Volokh Conspiracy, Jonathan Adler has an interesting note on one exchange in the argument: Is It Unamicable to Reject the Argument of a Friendly Amicus Brief? (noting that the government disavowed the argument in a supposedly supportive law professors' brief).


Cass Sunstein: Originalism and the Separation of Powers
Michael Ramsey

Cass R. Sunstein (Harvard Law School; Harvard Kennedy School) has posted Does Evidence Matter? Originalism and the Separation of Powers (19 pages) on SSRN.  Here is the abstract:

In the last two decades, there has been an extraordinary outpouring of careful historical work on two of the most fundamental questions in constitutional law: (1) whether Congress may delegate open-ended discretionary power to the executive branch (or others) and (2) whether Congress may restrict the president’s power to remove high-level officials in the executive branch. The best reading of the new evidence is that there was no robust nondelegation doctrine at the founding period, if there was a nondelegation doctrine at all. Though the issue is closer, the best reading of the new evidence is that during the founding period, the Constitution was understood to authorize Congress to restrict the president’s power of removal, even over principal officers (with important qualifications). Understood in terms of its original public meaning, the Constitution almost certainly allowed Congress to grant very broad discretion to the executive branch and also permitted Congress to limit the president’s removal authority over (some) principal officers. What is remarkable is that in both contexts, no originalist on the Court has been convinced by the relevant evidence, or even seriously grappled with it. Any explanation of the apparent impotence of historical evidence in this context (or others) would be speculative, but there are three plausible accounts. The first points to a simple lack of awareness of the relevant evidence and the crucial role of epistemic communities in constitutional law. The second is Bayesian and spotlights rational updating. The third points to motivated reasoning. All three accounts offer lessons for lawyers and others seeking to marshal historical evidence to disrupt engrained judicial beliefs.

Well, I would add that there's a fourth possibility, which is that the Court's originalists aren't persuaded by the new historical evidence because it's not all that persuasive.  Professor Sunstein, who on the merits favors the outcomes supported by the new scholarship, is persuaded -- but that doesn't mean people who aren't persuaded are operating in ignorance or bad faith.

I agree, though, that it would be appropriate for the Justices to engage the new scholarship in appropriate cases, to the extent they haven't already done so.

Mike Rappaport adds: I agree with Mike Ramsey.  Back when I started writing my article on Originalism and the Colorblind Constitution, Sunstein had written about how the originalist evidence was clearly in favor of allowing affirmative action.  But as I got deeper into it, I concluded that Sunstein was mistaken.  (I have a similar view about the nondelegation doctrine, where I have concluded that the doctrine has support in originalist evidence.)  And as Mike also states, it would have been good back then for the justices to have addressed his and other scholars' arguments concerning affirmative action.  In the Harvard case, the justices, especially Justice Thomas, have now done exactly that. 


Marco Basile: Ordinary Meaning and Plain Meaning
Michael Ramsey

Marco Basile (Harvard Law School) has posted Ordinary Meaning and Plain Meaning (Virginia Law Review, forthcoming) (63 pages) on SSRN.  Here is the abstract:

With textualism’s ascendancy, courts increasingly invoke the canon to assume “ordinary meaning” unless the context indicates otherwise and the rule to enforce “plain meaning” regardless of extratextual considerations. Yet the relationship between ordinary meaning and plain meaning can become confused in practice. Courts use the terms interchangeably, and they conflate them doctrinally.

Ordinary meaning and plain meaning are distinct. Ordinary meaning is what the text would convey to a reasonable English user in the context of everyday communication. Plain meaning refers to a judgment that whatever the text conveys in context is clear from the text. Thus, a term’s ordinary meaning is also its plain meaning only when it is clear from how the term is used in the statute that its context is ordinary, as opposed to technical. Courts conflate the two, however, when they assume ordinary meaning under the ordinary meaning canon and then conclude that they are therefore bound to enforce that meaning under the plain meaning rule. As a result, they end interpretation prematurely, excluding extratextual aids that might well show that the ordinary meaning assumption should give way.

This Article is the first to investigate the relationship between ordinary meaning and plain meaning. It clarifies their differences, identifies the ways in which they are conflated, and evaluates when they should converge. For textualists, greater clarity on this score illuminates when and how to bring ordinary meaning and plain meaning together in a principled manner. For methodological pluralists, understanding the gap between ordinary meaning and plain meaning opens opportunities to argue beyond the text in our increasingly textualist world.

Via Larry Solum at Legal Theory Blog, who says: "Highly recommended.  Download it while it's hot!"


The Constitution is Written in the Language of the Law
Mike Rappaport

Mike Ramsey discusses the issue of whether the Constitution should be interpreted as a legal document or as a nonlegal document.  He notes my work with John McGinnis arguing that the Constitution is written in the language of the law.  Mike’s discussion gets our view entirely correct.

Rather than engage in an elaborate discussion, let me just mention several essential points.

1.  The language of the law contains a legal vocabulary and legal interpretive rules.

2.  The strongest evidence that the document is written in the language of the law is that the Constitution contains a) many words that have unambiguous legal meanings, b) many other words (such as good behavior) that have both legal and ordinary language meanings (and that context makes clear should be given their legal meanings), and c) provisions that are clearly written with legal interpretive rules in mind (such as the Supremacy Clause).

3.  The language of the law does not mean that terms with both legal and ordinary language meanings always get legal meanings. The language of the law, since it includes all of ordinary language, often permits terms with both legal and ordinary language meanings to be given ordinary language meanings. By contrast, ordinary language has a hard time accounting for the legal meanings in the Constitution.

4.  The legal meaning of the Constitution is its original public meaning. The original public meaning is the meaning that was publicly conveyed. Anyone reading the Constitution (including nonlawyers) should know it is a legal document with legal meanings – because it includes technical terms such as letters of marque and reprisal; it refers to obvious legal concepts such as jurisdiction, common law, and equity; it includes legal forms, such as a preamble; and it states that it is the supreme law of the land.  Thus, its legal meanings, which are expressed and thus public, constitute its original public meaning.  

5.  The great bulk of – perhaps virtually all – originalist scholarship employs the language of the law. Scholars look at how courts and lawyers understood the constitutional terms. Thus, it is not surprising that Mike Ramsey says his work employs the language of the law.  Even Larry Solum’s excellent work on the original meaning of due process relies on the language of the law. 

"Of" and "Under" the United States (Updated)
Michael Ramsey

Will Baude offers this correction/clarification to my post from last week:

Calabresi continues to think that the presidency is an “Office Under the United States,” as he says in the post that Congress can and should disqualify Trump from the presidency through impeachment (which is an “Under” Clause).
And Tillman and Blackman have taken no position on the “Under” phrase in the 14th Amendment, only in the original Constitution. In the 14th Amendment they take a position only on “of.”
To recap (to be sure I have it right):
Section 3 of the Fourteenth Amendment says that (a) no one can hold an "office ... under the United States" who (b) engaged in insurrection after taking an oath as an "officer of the United States."
Under (a), the question is whether the presidency is an office "under the United States."  If not, then no one (including Trump) can be disqualified from the presidency.
Under (b), the question is whether the President is an "officer of the United States."  If not, then Trump can't be disqualified from the presidency (or any other position) because, although he took an oath, it was not as an "officer of the United States."
Calabresi (see here), Judge Mukasey (see here) and Blackman & Tillman (see here, Part V) say that the President is not an "officer of the United States."
David Weisberg (see here) says the presidency isn't an office "under the United States," at least for Fourteenth Amendment purposes, mainly because of the way the clause in Section 3 is phrased (omitting any specific reference to the presidency while specifically calling out, for example, Senators and Representatives).  Mukasey hedges, saying both views are plausible.
As Professor Baude says, Calabresi must think the presidency is an office "under the United States," at least under the original Constitution, because he says (in the post linked above):
As a result of Trump's behavior that day, I wrote an op-ed supporting his second impeachment for the commission of a High Crime and Misdemeanor.  I urged that Trump be disqualified from ever holding any federal office again.  The Senate foolishly failed to convict and disqualify Trump, and so now he is running for re-election.
Article I, Section 3 says that judgment in cases of impeachment shall extend only to removal from office and "disqualification ... [from] any office of honor, Trust or Profit under the United States." So the Senate could have disqualified Trump from running again only if the presidency is an office "under" the United States.
Blackman and Tillman have the opposite view on impeachment but their article on the Fourteenth Amendment doesn't address the "under" point.  Given what they say about the "officer of" point, though, I'm not sure how they wouldn't take the same view of "under" in the Fourteenth Amendment.
On the "officer of" point, Calabresi says it's a "technicality" that may not have been understood by the drafters of the Fourteenth Amendment.  Assuming that he (and others) are right about the technical meaning in the original Constitution but also that no one in 1866-1868 realized it, that sets up an interesting question of originalist interpretation.
UPDATE: A further clarification from Josh Blackman, who writes:
You wrote:
Blackman and Tillman have the opposite view on impeachment but their article on the Fourteenth Amendment doesn't address the "under" point.  Given what they say about the "officer of" point, though, I'm not sure how they wouldn't take the same view of "under" in the Fourteenth Amendment.
We do address the "under" point. See pp. 118-119 of the most recent version of the paper. Will Baude noted (correctly) that we do not take a position on the "under" question, but we certainly address it, and offer an explanation for why we do not take a position (the potential for linguistic drift). 
He also adds:
Our NYU piece explains at some length why there was no linguistic drift for "officer of." 
The Appointments Clause goes a long way to anchoring the meaning of "officer of the US" into the Constitution. There is no similar provision defining "office under the US." 


Glenn Moots on Obscure Founder Elias Boudinot
Michael Ramsey

At Law & Liberty, Glenn A. Moots (Northwood University - Political Science and Philosophy): Rediscovering an Extraordinary Founder (reviewing Andrew Farmer’s Ordinary Greatness: A Life of Elias Boudinot (American Bible Society, 2022)).  From the introduction:

[Elias] Boudinot may be the greatest Founder that most Americans have never heard of. [Andrew] Farmer writes, “Boudinot wasn’t just a witness to history. He helped make it.” Indeed he did, and surely in ways Boudinot himself could not have predicted. He was initially a practicing attorney in New Jersey and supporter of the Patriot cause, but he soon became a colonel in the Continental Army under George Washington’s direction, where he handled the demoralizing and difficult plight of American prisoners of war. He helped negotiate the Treaty of Paris. Boudinot became a member of the Continental and Confederation Congresses (including serving as president). After ratification of the Constitution, Boudinot served in the new nation’s First (and Second and Third) Congress. He was the first Director of the US Mint. Like Washington, he repeatedly denied himself retirement or private ambition so that he could answer his nation’s call. 

Boudinot was a model citizen in other ways as well. He was instrumental in founding the American Bible Society, served as a trustee of Princeton, consistently opposed slavery, and defended the rights of American Indians. Boudinot and his wife Hannah were also philanthropic to a fault, contributing to causes patriotic, charitable, and evangelistic at great cost to their personal fortune. The homes he built with his wife housed needy youths (including Alexander Hamilton) and men and women waiting on judges to free them from slavery. (Unlike many Founders, even many who opposed slavery, Boudinot never owned slaves.) 


The point of Farmer’s book is not to supply a curriculum vitae, however, but to situate Boudinot in a milieu that includes, most notably, Benjamin Franklin (his next-door neighbor as a child), George Washington, Alexander Hamilton, and influential ministers like George Whitefield and Gilbert Tennent. 

Central to Farmer’s narrative is Boudinot’s convictions and character. His deep personal faith descended from French Huguenots and was nurtured by his coming of age during the Great Awakening. Boudinot devoted himself to Presbyterian churches and Princeton Seminary (which he founded). He is buried in the cemetery of the Episcopal church where he finally retired, considering it the best of his local alternatives. As a faithful Protestant, however, Boudinot wasn’t interested merely in “private, inward spirituality” but also in the consequence of piety for public affairs and politics in the new nation. Boudinot believed that America’s fortunes would be tied to its faithfulness, including not just the fate of the Federalist Party (against supposedly godless Jeffersonians) but the desire of Americans for brotherhood more generally. In a 1793 oration, presciently seeing America’s future, he wrote, “All men, however different with regard to nation or color, have an essential interest in each other’s welfare.” ...

And here is the book description from the publisher:

Learn how the founder of American Bible Society drew on the Bible to navigate the spiritual, intellectual, moral, and political challenges of the American Founding.

You won’t find this American Founder on a coin or a Broadway musical. But Elias Boudinot (1740–1821) left an enduring mark on history. Hamilton’s mentor. Washington’s friend. President of the Continental Congress, Revolutionary War veteran, legislator, entrepreneur, philanthropist, and abolitionist. Boudinot shaped governments, schools, churches, and charities. Now, in the first biography dedicated to his life in 50 years, Ordinary Greatness invites readers to discover the compelling story of this Founder’s dedication to faith and liberty amid volatile times.

Set in times of division and change not unlike our own, Ordinary Greatness guides readers from the Great Awakening to the early Republic. It explores Boudinot’s life alongside four of his close connections: George Whitefield, Benjamin Franklin, George Washington, and Alexander Hamilton. It shows how Boudinot’s faith shaped his public and private roles and his convictions on government, slavery, and missions. And it offers a new generation fresh inspiration and courage to face our own challenges.


Michael McConnell and Marci Hamilton on Religious Liberty
Michael Ramsey

At the National Constitution Center, Michael McConnell (Stanford) and Marci Hamilton (Penn) discuss The History of Religious Liberty in America (Video):

How did America’s founders view religious liberty? And what does it mean today? Join constitutional law experts Marci Hamilton, author of God vs. the Gavel: The Perils of Extreme Religious Liberty, and Michael McConnell, co-author of Agreeing to Disagree: How the Establishment Clause Protects Religious Diversity and Freedom of Conscience, for a special Constitution Day discussion to celebrate the opening of the Center’s new First Amendment gallery. Jeffrey Rosen, president and CEO of the National Constitution Center, moderates.

Via Legal History Blog.



Preston Lim: The Originalism of F.R. Scott
Michael Ramsey

Preston Jordan Lim (Villanova University Charles Widger School of Law) has posted The Originalism of F.R. Scott (Supreme Court Law Review (2d) vol 111 pp. 101-113 (2023)) (14 pages) on SSRN.  Here is the abstract:

Few figures have impacted 20th century Canadian history and thought as deeply as F.R. Scott. Although many remember Scott today as a socialist, nationalist, civil libertarian and poet, few remember him as an originalist. After defining various schools of originalism, I argue that Scott implicitly espoused two types of originalism: intentionalism and framework originalism. As an intentionalist, Scott treated the Framers’ purposes and objectives as paramount in interpreting the British North America Act of 1867. As a framework originalist, Scott contended that the Framers established a constitutional architecture fully capable of meeting the challenges of future centuries. Scott’s originalism contains broader lessons both for contemporary originalist theory and Canadian constitutional theory.


Delegating War Powers (Near-Final Version)
Michael Ramsey

Matthew C. Waxman (Columbia) and I have posted a revised and near-final version of our co-authored article Delegating War Powers (Southern California Law Review, vol. 96 (2023, forthcoming)) (82 pages) on SSRN.  Here is the abstract: 

Academic scholarship and political commentary endlessly debate the President’s independent constitutional power to start wars. And yet, every major U.S. war in the last sixty years was fought pursuant to war-initiation power that Congress gave to the President in the form of authorizations for the use of military force. As a practical matter, the central constitutional question of modern war initiation is not the President’s independent war power; it is Congress’s ability to delegate its war power to the President.

It was not until quite late in American history that the practice of war power delegation became well accepted as a domestic law basis for starting wars. This Article examines the development of war power delegations from the Founding era to the present to identify when and how war power delegations became a broadly accepted practice. As this Article shows, the history of war power delegation does not provide strong support for either of two common but opposite positions: that war power, as a branch of foreign affairs powers, is special in ways that make it exceptionally delegable; or that it is special in ways that make it uniquely nondelegable. More broadly, that record counsels against treating “foreign affairs delegations” as a single category, and it reveals that constitutional questions of how Congress exercises war power are as significant as whether it does.


Earl Maltz: The Entire Fourteenth Amendment
Michael Ramsey

Earl M. Maltz (Rutgers Law School) has posted The Entire Fourteenth Amendment (85 pages) on SSRN.  Here is the abstract:

Discussions of the legislative history of the Fourteenth Amendment have almost uniformly focused on the background of section one. However, the recent debate about the proper interpretation of section three has reminded us that section one was in fact only one part of a multi-faceted measure that was designed to outline the conditions under which the states that had been part of the Confederacy would be allowed to regain their status as equal members of the United States. This article is the first to provide a comprehensive overview of the legislative history of the entire Fourteenth Amendment, including both section one and section three, as well as sections two and four.

The introduction states in part:

The article describes the evolution of the conflict between Andrew Johnson and mainstream Republicans over the issue of Reconstruction generally, as well as the disputes among the members of the Joint Committee on Reconstruction and the discussions of the proposals that emerged from that committee on the floor of the House of Representatives and the Senate.  In addition, unlike most accounts, which characterize the proposal that was reported by the committee in late April as a modification of a five-part constitutional amendment initially proposed by Republican activist Robert Dale Owen, the article demonstrates that the measure that was ultimately reported was in fact a substitute for that plan and embodied the principles that were endorsed by New York Republicans at a meeting that took place shortly after the initial committee vote on the Owen proposal.    The article also argues it was the embrace of the New York template that provided the impetus for the fateful decision to abandon a simple prohibition on race discrimination in favor of the race-blind formulation of section one that has provided the foundation for much of modern constitutional doctrine.