« October 2023 | Main | December 2023 »

24 posts from November 2023

11/30/2023

Saikrishna Prakash: Deciphering the Commander-in-Chief Clause
Michael Ramsey

Saikrishna Prakash (University of Virginia School of Law) has posted Deciphering the Commander-in-Chief Clause (Yale Law Journal, Vol. 133, No. 1, 2023) (98 pages) on SSRN.  Here is the abstract:

The conventional wisdom is that the Commander-in-Chief Clause arms the President with a panoply of martial powers. By some lights, the Clause not only equips the President with exclusive control over military operations, but also conveys the powers to start wars, create military courts, direct and remove officers, and wield emergency wartime powers. Under such readings, the meaning of “commander in chief” is as obvious as it is unequivocal—it confers some measure of absolute and unchallengeable authority upon the President. Yet, seemingly paradoxically, proponents of this stance cannot say where the Commander in Chief’s power begins and ends. In particular, establishing the Clause’s limits is an acute and persistent problem.

Using eighteenth-century understandings as a yardstick, this Article topples the orthodox reading of the Clause and demarcates the Clause’s elusive frontiers. In contrast to modern assumptions, the Article reveals that eighteenth-century commanders in chief enjoyed neither sole nor supreme authority over the military. Throughout the seventeenth and eighteenth centuries, there were, at any one time, a multitude of British and American commanders in chief, and both assemblies and other military officials consistently directed these commanders, often in quite intrusive ways. By borrowing a familiar expression, the Constitution incorporated the modest, contemporary conception. Rather than being a sui generis military potentate, the President is nothing more than a chief commander, or what Alexander Hamilton called the “first General and Admiral.” The Commander in Chief of the Army and Navy lacks a vast arsenal of military authority but instead possesses only the constrained powers of a general and admiral. Crucially, the Clause does not grant any exclusive authority over peacetime operations or even the conduct of war. Nothing about the term “commander in chief” would have suggested such autonomy because previous chief commanders had lacked such independence. Indeed, early Presidents never objected to congressional bills that sought to regulate military operations pervasively, including wars. Rather, they signed the proposals into law and, thereafter, sought to faithfully execute them.

To be sure, the President is more than a mere general and admiral. Due to the rest of Article II and the Presentment Clause, the President wields considerable authority and influence over the military, far more than a generic commander in chief would. These other sources of power convey authority over the appointment, direction, and removal of military officers and substantial influence on which military bills will become law. In the grand scheme of things, the Commander-in-Chief Clause is far less significant than these other clauses.

How we read the Commander-in-Chief Clause matters. Without a sense of the Clause’s alpha and omega, Presidents will continue to cite it to evade, minimize, and commandeer congressional powers. If this Article’s assertions are correct, however, Presidents will no longer be able to insist that the Founders established a chief commander that can start wars or one that enjoys exclusive authority over operations. By decrypting the Clause, this Article highlights the extent to which Presidents have amassed power untethered from constitutional moorings and also may help fend off further executive overreach. Although some puzzles remain, this Article takes some initial strides in the long march towards deciphering the Commander-in-Chief Clause.

11/29/2023

Curtis Bradley & Jack Goldsmith: Foreign Affairs, Nondelegation, and the Major Questions Doctrine
Michael Ramsey

Curtis Bradley (University of Chicago Law School) & Jack Landman Goldsmith (Harvard Law School) have posted Foreign Affairs, Nondelegation, and the Major Questions Doctrine (University of Pennsylvania Law Review, forthcoming) (55 pages) on SSRN.  Here is the abstract:

Some of the Supreme Court Justices and scholars who support a reinvigoration of the nondelegation doctrine would allow for an exception for grants of authority relating to foreign affairs. Others have criticized such an exception as unprincipled or as reflecting improper “foreign affairs exceptionalism.” This Article argues against a foreign affairs exception to the nondelegation doctrine but contends that the doctrine should be applied less strictly in situations in which the recipient has independent constitutional power relating to the subject of a statutory delegation. The President has more independent constitutional power relating to foreign affairs than domestic affairs, so this limitation on the nondelegation doctrine will do more work in the foreign affairs area. But the President does not have plenary power over foreign affairs and has some independent constitutional power relating to domestic affairs, so it is inaccurate and potentially misleading to refer to a “foreign affairs” exception. After establishing this point, the Article identifies several ways in which independent power is relevant to the nondelegation doctrine, which we call situations of “redundant authorizations,” “unlocking authorizations,” and “independent discretion authorizations.” The Article then analyzes a number of broad statutory authorizations relating to foreign affairs and domestic security and finds that some but not all of them can be justified by reference to the President’s independent powers. For others, the best defense of their constitutionality (assuming a reinvigoration of the nondelegation doctrine) likely stems from longstanding historical practice—that is, “historical gloss.” The Article concludes by considering the relevance of this analysis to the application of the “major questions doctrine,” and it explains why that doctrine likely poses less of a threat to authorizations related to foreign affairs than scholars have maintained.

The article has some connection with my forthcoming article (with co-author Matthew Waxman) Delegating War Powers.  Like Professors Bradley and Goldsmith, we argue against a generalized "foreign affairs" exception to the nondelegation doctrine and also note that there are particular areas where the President's independent powers (in our study, the power to conduct war, enforce the law and suppress insurrection) may make broad delegations more defensible.

11/28/2023

Jarkesy on Wednesday, Plus Some Thoughts on Removal
Michael Ramsey

The Supreme Court's oral argument in Securities and Exchange Commission v. Jarkesy, a case with multiple issues of originalist interest, will be tomorrow, 11/29.  As Ronald Mann at SCOTUSblog describes it

[Jarkesy] will present a remarkable spectacle of three entirely distinct constitutional challenges to wholly disparate attributes of the SEC. Ordinarily, the ability of the justices to control their docket would allow them to wait on each question for the development of a circuit conflict and select a suitable case in which to resolve each issue. But in this case a bold (I did not say “rogue”) panel of the U.S. Court of Appeals for the 5th Circuit accepted all three arguments and invalidated three aspects of the SEC’s operations. To leave the decision unreviewed would force Congress to revise substantially the affected portions of the securities laws solely based on the opinion of one divided lower court panel – hence, the Supreme Court’s buffet of constitutional law topics on Wednesday morning. 

Here are the questions presented

(1) Whether statutory provisions that empower the Securities and Exchange Commission to initiate and adjudicate administrative enforcement proceedings seeking civil penalties violate the Seventh Amendment; (2) whether statutory provisions that authorize the SEC to choose to enforce the securities laws through an agency adjudication instead of filing a district court action violate the nondelegation doctrine; and (3) whether Congress violated Article II by granting for-cause removal protection to administrative law judges in agencies whose heads enjoy for-cause removal protection.

I don't have an originalist view on the specific removal question (#3 above) because I haven't looked into the details of how administrative law judges function.  But I do have an originalist view on presidential removal more generally, and since some fairly harsh things have been said about originalist methodology in connection with this issue recently, I thought it would be useful to briefly summarize the argument.

The basic originalist position I and others have defended is that Article II generally requires that the President have unrestricted removal authority over federal officers who exercise significant executive authority.  In my view (and I'm writing only for myself here), the argument has three main components.

(1) The text.  The core of the argument is textual rather than historical.  Article II, Section 1 says that "[t]he executive Power shall be vested in a President of the United States of America."  As Justice Scalia famously said in dissent in Morrison v. Olson, "this does not mean some of the executive power" (or, I would add, even most of the executive power) "but all of the executive power." (487 U.S. at 705)  And if it "shall be vested" in the President, then by obvious negative implication it shall not be vested in anyone who is not the President.  (As an aside, I don't attach any particular importance to the word "vested" here -- it would mean the same, I think, if it said "shall be exercised by".)  Of course, everyone at the time assumed Congress would provide officers to assist the President in exercising the executive power, as it surely couldn't be done by a single person.  But providing officers to assist in execution wouldn't be contrary to vesting executive power in the President so long as the President had the ability to control the officers -- a point reinforced by the President's duty in Article II, Section 3 to take care that the laws are faithfully executed.

To be sure, one could structure an executive branch differently.  A constitution could direct that the attorney general, for example, be entirely independent of the President.  But in that circumstance one would not say that the executive power is vested in the President, since much of the executive power would be in fact vested in the attorney general, beyond the President's control.  And the Constitution we actually have says that the the executive power "shall be" -- that is, must be -- vested in the President.

Various lawyers and law professors have offered ingenious arguments to show why Article II doesn't necessarily mean what it appears to say, but I don't find them persuasive.   They seem at most to show that the text could possibly be read to mean something different, not that it most plausibly (or even somewhat plausibly) could be. Nor do I understand what they think the consequences of their arguments are: could Congress create an office of attorney general with a lifetime appointment, removable only through impeachment?  In what sense would that structure be consistent with the direction that the executive power be vested, not in the Attorney General, but in the President?

In short, I think the text is sufficiently clear that only very strong history could overcome its apparent meaning.  The history, though, is ambiguous at best, and generally tends to confirm the most evident reading of the text.

(2) The English background.  The drafters of Article II likely had in mind Blackstone's description of the executive power, which emphasizes the unity of the monarch:

the executive part of government ... is wisely placed in a single hand by the British constitution, for the sake of unanimity, strength and dispatch.  Were it placed in many hands, it would be subject to many wills: many wills, if disunited and drawing different ways, create weakness in a government: and to unite those several wills, and reduce them to one, is a work of more time and delay that the exigencies of state will afford. The King of England is therefore not only the chief, but properly the sole, magistrate of the nation: all others acting by commission from, and in due subordination to him. (vol. 1, pp. 242-43)

It's hard to read this description without concluding that the monarch had full control over executive officers, and the framers were presumably familiar with monarchs removing ministers and other high officials who displeased them.  Blackstone's description also contrasts sharply with his later description of the judicial power (sometimes described by other sources as a branch of the executive power), which Blackstone thought was rightly rendered independent by the Act of Settlement's limits on the crown's ability to remove judges.

Blackstone acknowledged in later chapters that the tenure of some local offices was limited by law or custom, and Professor Jed Shugerman has shown that in fact the situation was somewhat less coherent, with a patchwork of rules applying to various offices (a situation that may or may not have been full understood by the American framers).  But none of this seems to me to undermine the basic thrust of the passage quoted above -- that the ideal, at least, was a unitary model of the executive.

(3) Post-ratification practice and commentary.  The evidence from the early post-ratification period also has some ambiguities, but it generally supports the text's most apparent meaning (and in any event it does not point in the opposite direction).

(A) In 1789, when Congress was creating the executive departments, Madison and others expressed the view stated above -- that the President had constitutional authority to remove executive officers as part of the executive power and the take-care duty.  Madison of course was sometimes mistaken as to constitutional meaning, and others at the time disagreed.  But his argument reflects what someone close to the drafting thought about it, with additional weight given that, as a member of Congress, he was taking a view contrary to his institutional interest.  Further, while Congress debated the matter at great length, its ultimate products -- the statutes it enacted in 1789 -- are most consistent with Madison's reading.  (I say more on this point in a new article: Presidential Power and What the First Congress Did Not Do.)

(B) In practice, early Presidents beginning with Washington removed executive officers without statutory authorization, relying on their constitutional power.  Generally this practice did not provoke strong opposition on constitutional grounds, even when the removal was contested for other reasons (as with Washington's removal of James Monroe as ambassador to France).  And generally Congress in this period did not limit removal authority of officers with substantial executive power (although there are some episodes at the margins that may be difficult to characterize.)

In sum, while the history does not all point in the same direction, it tends to support the President's constitutional right of removal as to principal executive officers, and in any event it is not unambiguous enough to overcome the clear direction of the text.

(This is of course only a quick sketch, and each point could be elaborated with additional detail and further consideration of counterarguments.  The goal here, though, is only a quick sketch.)

 

11/27/2023

Tanner Allread: The Specter of Indian Removal [Updated]
Michael Ramsey

W. Tanner Allread (J.D. '22, Stanford Law School; Ph.D. Candidate in History, Stanford University) has posted The Specter of Indian Removal: The Persistence of State Supremacy Arguments in Federal Indian Law (123 Colum. L. Rev. 1533 (2023)) (78 pages) on SSRN.  Here is the abstract:

In the 2022 case of Oklahoma v. Castro-Huerta, the Supreme Court departed from one of the foundational cases in federal Indian law, Worcester v. Georgia. Chief Justice John Marshall’s 1832 opinion had dismissed state power over Indian Country. But in Castro-Huerta, the Court took precisely the kind of arguments about state power that Chief Justice Marshall rejected in Worcester and turned them into the law of the land—without any recognition of the arguments’ Indian Removal–era origins.

This Article corrects the Court’s oversight. Relying on rarely utilized archival sources, it provides a historical narrative of the development of what the Article terms the theory of state supremacy, first articulated by the southern state legislatures in the Removal Era to justify state power over Native nations and eradicate Native sovereignty. Even though Worcester rejected this theory, Supreme Court Justices and state litigants have continued to invoke its tenets in Indian law cases from the late nineteenth century to the present. Castro-Huerta, then, is just the latest and most egregious example. And the decision’s use of Removal-era arguments revives the specter of Indian Removal in the present day.

This Article reveals that the continued use of state supremacy arguments defies constitutional law and federal Indian affairs policy, produces an inaccurate history of Native nations and federal Indian law, and perpetuates the racism and violence that characterized the Removal Era. Ultimately, this Article seeks to counter future attacks on tribal sovereignty and combat the broader revival of long-rejected federalism arguments.

UPDATE:  At Legal Theory Blog, it is "Download of the Week" and Larry Solum says "Highly recommended".

11/22/2023

Josh Blackman on Second Thoughts on Rahimi [Updated]
Michael Ramsey

At Volokh Conspiracy, Josh Blackman: A Reversal in Rahimi Will Be Tougher to Write Than Critics Admit.  From the introduction: 

The conventional wisdom is that the Supreme Court will certainly reverse the Fifth Circuit in Rahimi. Indeed I've voiced that position myself several times, especially in light of a potential grant in Range. (The New York Times picked up Justice Barrett's question). But let me challenge that conventional wisdom: an opinion reversing Rahimi will be tougher to write than most critics will admit.

Let's start with a premise: Rahimi was a faithful application of Bruen. Efforts to "clarify" Bruen are really an attempt to rewrite the precedent. I don't think anyone seriously doubts this premise. Now the reason why the Court may "clarify" Bruen is because certain members of the Court don't like the results that it yields: namely, that a dangerous person like Rahimi can possess a firearm. Again, the correctness of the Bruen precedent should be able to stand without regard to how it may be applied in future cases. But that's where we are. Some members of the Court who profess to be originalists are still motivated by consequentialism. And these concerns came out loud and clear during oral argument.

Still, there is a long time between November and June. A majority opinion has to be written. And that opinion will have to navigate an issue that didn't get much attention during oral argument: what other constitutional rights should dangerous people lose? Certainly this case can't just be about guns.

One of my first published articles, The Constitutionality of Social Cost, was published in the Harvard Journal of Law & Public Policy in 2011. I had started thinking about the topic in 2009, before McDonald v. Chicago was decided. The basic premise of my article was that there are many dangerous rights, and the Second Amendment was not an outlier....

UPDATE:  Will Baude has a contrary view: It's Not So Hard to Write an Opinion Following Bruen and Reversing in Rahimi.  In conclusion:

In general, I do think there is a campaign to get the Court to walk back from the test it set forth in Bruen, as the right to keep and bear arms is generally quite unpopular among lawyers and policymakers. But not every decision upholding a regulation against facial challenges in fact reflects such a retreat from Bruen. And the Court's decision in Rahimi need not be such a retreat, so it seems premature to conclude that it would be.

11/21/2023

Stephen Sachs: Life After Erie
Michael Ramsey

Stephen E. Sachs (Harvard Law School) has posted Life After Erie (17 pages) on SSRN.  Here is the abstract:

Erie Railroad Co. v. Tompkins is the most important case that no one who isn’t a lawyer has ever heard of. Viewed narrowly, it holds that a federal court, when deciding issues subject to state law, has to defer to the opinions of state courts. That proposition is often false. But the problem with Erie isn’t this narrow result; the problem is its reasoning. As the Supreme Court would later put it, Erie overruled, not just a past line of cases, but “a particular way of looking at law.” Erie rejected a category of law—sometimes called general common law, or just “general law”—which was fundamental to our federal system, and the absence of which has left us unable to understand basic aspects of American jurisprudence.

This lecture, delivered on the occasion of the author’s appointment as Antonin Scalia Professor of Law, explores what life will look like after Erie—how the law will operate on the happy and glorious day when Erie has been overturned. This is not a prediction that Erie will be overturned. Though some legal seismologists have discerned rumblings in that direction, we have no guarantee that courts will get things right: the arc of jurisprudence does not always bend toward intellectual coherence. Rather than make predictions, it sets out a research agenda, attempting to think through some of the problems overruling Erie may pose—so that when the time comes to reconsider Erie, those who do so will have a clear path to follow.

The most important feature of life after Erie may not be any particular doctrines the courts enforce, but the attitude with which they enforce them. To reject Erie is to recognize, as Francis Bacon put it, and as Justice Scalia noted in Rogers v. Tennessee, that the judge’s “office is jus dicere, and not jus dare; to interpret law, and not to make law, or give law.” When this power to make law is conferred by a statute or a constitution, maybe a judge can lawfully wield it. But one hopes that, after Erie, we will recognize this authority as one that no officials, least of all judges, have any right to arrogate to themselves.

11/20/2023

Peter Walliston on Trump and Section 3
Michael Ramsey

At Law & Liberty, Peter Walliston: The Fraught Question of Eligibility.  From the introduction: 

The upcoming presidential election will be one of the most important—and fraught—in our history, largely because of the questions that have been raised about Donald Trump’s eligibility to run for a second term as president.

The most authoritative foundation for these questions is a scholarly paper based on the language of Section 3 of the Fourteenth Amendment to the Constitution written by two conservative constitutional scholars, William Baude and Michael Stokes Paulson. The original work, which I have summarized here, is probably too long and its argument too detailed for most readers, but the summary should make its fundamental elements clear. The summary also contains commentary by Josh Blackman and Seth Barrett Tillman, who disagree with Baude and Paulsen in certain respects.

Recently, Law & Liberty published an excellent discussion by Professor Kurt T. Lash about the ambiguities in the language and legislative history of Section 3 of the Fourteenth Amendment, and this points to the difficulties that the US courts will have in deciding whether former President Trump is eligible to run for a second term. Unfortunately, the more difficulty the courts have in writing a persuasive opinion one way or the other, the more controversy and discord in our politics will result.

...

Peril lies on both sides of the issue. A decision that deprives many Americans of an opportunity to vote for their preferred candidate could do lasting damage to trust in American democracy. Declaring Trump ineligible for the presidency would completely alter the current presidential race, including the views of many about whether the United States is a legitimate democracy and whether the president ultimately elected is a legitimate holder of the office. Without a fully persuasive reason for taking this step, the adverse consequences for the country could be substantial.

On the other hand, failing to apply the law fully and fairly to Donald Trump could destroy many Americans’ faith in the Constitution, the Supreme Court, and the legal system generally. Many will be persuaded that the Court was intimidated by a mob and failed to do its duty, or was pushed in that direction by the conservatives on the Court, three of whom were appointed by Donald Trump himself. It might even be seen as a roadmap that will enable future presidents—after denying that they lost an election—to take steps like those taken by Mr. Trump to stir major demonstrations in Washington or elsewhere.

After addressing several of the key issues, in conclusion: 

All this shows how difficult it will be for the courts—and especially the Supreme Court, which will make the final decision—to be sure about the answer, and the less sure the answer the more controversy will roil this country. 

It’s a cliché that our country is very divided today, and the question of Trump’s eligibility to run for president will only add to these divisions. Still, every American should try to understand the legal issues that the courts will face in making this extremely controversial decision, and seek out the true meaning of the Constitution, regardless of partisan inclination.

11/19/2023

Colorado Court: The President is not an "Officer of the United States" [Updated]
Michael Ramsey

From the Colorado State District Court for Denver, Judge Sarah Wallace, in Anderson v. Griswold (footnotes and paragraph numbers omitted): 

Intervenors argue that five constitutional provisions show that the President is not an “officer of the United States.”

• The Appointments Clause in Article II, Section 2, Clause 2 distinguishes between the President and officers of the United States. Specifically, the Appointments Clause states that the President “shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law.” U.S. CONST. art. II, § 2, cl. 2.

• The Impeachment Clause in Article II, Section 4 separates the President and Vice President from the category of “civil Officers of the United States:” “The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” U.S. CONST. art. II, § 4.

• The Commissions Clause in Article II, Section 3 specifies that the President “shall Commission all the Officers of the United States.” U.S. CONST. art. II, § 3. 

• In the Oath and Affirmation Clause of Article VI, Clause 3, the President is explicitly absent from the enumerated list of persons the clause requires to take an oath to support the Constitution. The list includes “[t]he Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States.” US. CONST. art. VI, cl. 3.

• Article VI provides further support for distinguishing the President from “Officers of the United States” because the oath taken by the President under Article II, Section 1, Clause 8 is not the same as the oath prescribed for officers of the United States under Article VI, Clause 3.

The Court agrees with Intervenors that all five of those Constitutional provisions lead towards the same conclusion—that the drafters of the Section Three of the Fourteenth Amendment did not intend to include the President as “an officer of the United States.”  

Here, after considering the arguments on both sides, the Court is persuaded that “officers of the United States” did not include the President of the United States. While the Court agrees that there are persuasive arguments on both sides, the Court holds that the absence of the President from the list of positions to which the Amendment applies combined with the fact that Section Three specifies that the disqualifying oath is one to “support” the Constitution whereas the Presidential oath is to “preserve, protect and defend” the Constitution, it appears to the Court that for whatever reason the drafters of Section Three did not intend to include a person who had only taken the Presidential Oath.

...

As a result, the Court holds that Section Three of the Fourteenth Amendment does not apply to Trump.

The court also held that the presidency is not an "officer under the Constitution" for purposes of Section 3.

(Thanks to Josh Blackman at Volokh Conspiracy and Seth Barrett Tillman for the pointer, and congratulations to them as scholarly advocates of this position).

Two quick thoughts, not on the merits:

(1) I wish, in an analysis like this, that courts would not say things like "the drafters of Section Three did not intend to include ..."  It's an excellent textual analysis.  It makes a good case as to the text's original meaning.  It doesn't (and needn't) show anything about the drafters' intent.

But the court makes up for it with this footnote (footnote 20):  

Whether this omission [of the President from Section 3] was intentional, or an oversight is not for this Court to decide. It may very well have been an oversight because to the Court’s knowledge Trump is the first President of the United States who had not previously taken an oath of office.

Agreed and well put.  There are likely lots of oversights in the Constitution, as to details like this.  Doesn't matter.  The text means what it means, regardless of the drafters' intent.

(2) The court emphasizes the need for caution in the face of uncertainty:

To be clear, part of the Court’s decision is its reluctance to embrace an interpretation which would disqualify a presidential candidate without a clear, unmistakable indication that such is the intent of Section Three. As Attorney General Stanbery again noted when construing the Reconstruction Acts, “those who are expressly brought within its operation cannot be saved from its operation. Where, from the generality of terms of description, or for any other reason, a reasonable doubt arises, that doubt is to be resolved against the operation of the law and in favor of the voter.” The Reconstruction Acts, 12 U.S. Op. Att’y Gen. 141, 160 (1867) (emphasis added). 

Here, the record demonstrates an appreciable amount of tension between the competing interpretations, and a lack of definitive guidance in the text or historical sources.

I've become increasingly inclined to this view as a general matter -- that is, courts should not intervene on constitutional issues unless the Constitution's direction is reasonably clear.  (Though, to be clear, I think it is reasonably clear more often than many people do.)

UPDATE:  At Balkinization, Mark Graber has an extended response, beginning:

Researching whether the persons responsible for Section Three of the Fourteenth Amendment thought the president was an officer of the United States is a bit like researching whether George Washington had five fingers on his right hand.  No one ever says so directly because the point is obvious.  But when you do the research, you discover quotation after quotation in the last half of the 1860s that the president is an officer of the United States, quotation after quotation that Republicans thought Section Three of the Fourteenth Amendment covered all federal officers, and quotation after quotation that they did not distin[guish] between the various oaths covered by the Constitution. ...

11/18/2023

Liam Cronan: The Dutch Origins of the Foreign Emoluments Clause
Michael Ramsey

Liam Cronan (JD/MA in History, Boston University) has posted “In Defiance of Gifts”: The Dutch Origins of the Foreign Emoluments Clause (43 pages) on SSRN.  Here is the abstract:

If any lessons have emerged from the intersection of law and politics over the past half-decade, it is that the problems with and accusations of corruption—and the question of what precisely corruption means under the law—are now a mainstay of American political life. Examples are rife on both sides of the political aisle, from former President Trump’s international business dealings to the Biden Family’s connections in Ukraine to recent corruption charges against U.S. Senator Bob Menendez. This paper intends to employ the first of these, former President Trump’s business dealings, as a lens through which to understand corruption as a constitutional issue—and more specifically, the constitutional problem of foreign emoluments.

In 2017, the United States District Court for the Southern District of New York interpreted a clause in the Constitution that had, until then, been relegated among the Constitution’s “odd clauses:” Article I, Section 8, Clause 9 and its “Foreign Emoluments Clause” provision. Because of a clear “lack of precedent” on this matter, federal courts soon parsed law review articles, the Federalist Papers, letters from figures such as George Washington and James Madison, and the records of the Constitutional Convention to determine the Clause’s proper application, emphasizing the importance of “looking to historical practices” to “determine the original meaning” of the Clause. Their attempts resulted in a subtle split among circuits and left open a series of questions about the Clause’s meaning. But one source of original meaning, yet unmentioned in any case law, may aid in answering these: seventeenth-century Dutch law.

While many sources have since noted that Dutch law is the “likely” or “apparent” origin of the Clause, no scholarship has attempted to prove this through any serious interrogation of primary source materials. This paper is the first to do so. This paper traces an idea—that government officers may be barred from accepting gifts—from the Constitution we know today to the letters, speeches, and writings of the Framers to Dutch jurisprudence and the 1651 Dutch law itself. It will explore how the Framers first discovered this legal concept and how it can again function as a critical source of understanding for the Clause.

(Via Dan Ernst at Legal History Blog.)

11/17/2023

Steven Calabresi on the Amars' Brief in Moore v. United States
Michael Ramsey

At Volokh Conspiracy, Steven Calabresi: The Amar Brief in Moore v. United States Should Not be Embraced.  From the introduction: 

The constitutional question in Moore v. United States is whether wealth taxes and taxes on unrealized capital gains have to be apportioned among the states based on their respective populations, which it is practically impossible to do, or whether wealth taxes and taxes on unrealized capital gains have to be merely uniform in every state, which could be easily accomplished.  Ed Meese, Gary Lawson, and I argue that such taxes are direct taxes, which must be apportioned among the states, while the Amar brothers say they are indirect taxes that must merely be uniform among the states, which would make them much easier to enact.

The Taxing Power itself is granted in Article I, Section 8, Clause 1, which says:

"The Congress shall have Power To lay and collect TaxesDutiesImposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States."

Article I, Section 9, Clause 4 then critically limits the federal taxing power by saying that:

"No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken."

The rule of apportionment thus applies to "direct taxes"; the rule of uniformity applies only to such indirect taxes as "Duties, Imposts, and Excises.

The flaw in the Amar brothers' brief that I will discuss today is that it construes the text of the Constitution according to the expected applications of certain historical figures rather than its plain objective meaning.  The Amar brothers rewrite Article I, Section 9, Clause 4 to say:

"No Capitation, or Land Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken."

They argue that wealth taxes and taxes on unrealized capital gains in your house or Vanguard fund are perfectly constitutional.  They say, contrary to the text of the Constitution, that Article I, Section 9, Clause 4 bans only federal capitation and land taxes and that nothing else is a direct tax.

The post continues:

The original public meaning of the words "direct tax" is clearly set forth in two law review articles: Robert Natelson, What the Constitution Means by "Duties, Imposts, and Excises"— and "Taxes" (Direct or Otherwise), 66 Case West. U. L. Rev. 297 (2015) and Erik M. Jensen, The Apportionment of "Direct Taxes": Are Consumption Taxes Constitutional?, 97 Colum. L. Rev. 2334 (1997).  Both authors conclude that "direct taxes" included many more taxes than merely a capitation or federal land tax.

Natelson demonstrates conclusively that the phrase "direct taxes" also included taxes on:

"1) Wealth employed in business and domestic life.  Direct taxes included those imposed on land, improvements to land, ('stock in trade'), business equipment, and livestock; 2) Personal and business income.  Direct taxes included levies on rents, business profits, wages, interest, and other income; 3) Business enterprises.  Levies on business profits and occupational fees were direct taxes; 4) Heads.  Poll taxes, also called head taxes or capitations, existed in all of the New England states and in most other states as well.  They were levied both on free persons and slaves.  Capitations were the prevalent way of taxing slaves."  Natelson, supra at 314-316.

Seems right to me.  For my thoughts on the Amar brief and Ware v. Hylton, see here.  I don't think this necessarily means the Moores win, though.