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24 posts from December 2023


Eric Segall on Supreme Court Nonoriginalism
Michael Ramsey

At Dorf on Law, Eric Segall: An Originalism Scorecard Since Justice Barrett Arrived on the Court: Living Constitutionalism is Way Ahead.  From the introduction:

Justice Amy Coney Barrett was confirmed to be a Supreme Court justice in late October, 2020 (just before Donald Trump lost the election). Since her arrival, four justices now self-identify as full-blown originalists (Thomas, Gorsuch, Kavanaugh, and Barrett) while Justice Alito is an on and off again originalist, and even Justice Jackson at times has shown great interest in originalist sources.

Yet the most important cases of the last three terms have been almost totally devoid of originalist analysis. The reason for that omission is that none of the alleged originalists on the Court uses that method of constitutional interpretation unless it supports their views. In other words, they are conservatives and Republicans first, originalists only when convenient, which is to say that none of them are originalists at all. I have little doubt that at some future date the failure of these four justices to actually use originalism and even decide some cases against the most persuasive historical sources, will be compelling evidence for originalism's demise. Given the age of those four faux originalists, however, and life tenure, I may not live long enough to see that moment, but I am quite confident it will happen.

These days originalism comes in a wide variety of flavors. But for purposes of this essay, we can assume that all originalists agree that, to be an originalist, one must search for the Constitution's original meaning, or the intentions of those who wrote and ratified the Constitution, or both, using historical sources shedding light on the time period surrounding ratification. A judicial opinion with virtually no historical analysis or that relies on history far removed from ratification simply cannot be originalist, unless it also relies on prior originalist opinions, which none of the cases discussed in this blog post try to do.

This post is concerned with constitutional law decisions, not statutory interpretation cases. I can't canvass all the Court's constitutional opinions in one blog post, but I will discuss most of the major cases from the last three terms, which provide more than a representative sample showing how little originalism actually drives the Roberts Court.

The post then reviews the major cases from each of the last three terms, with this conclusion:

Since Justice Barrett joined the Court, the conservative justices have dramatically reshaped the law of abortion, affirmative action, gun control, the relationship between church and state, free speech, and the separation of powers. They accomplished many of the Republican Party's objectives in a very short time. And they did almost all of it without serious originalist analysis. These three terms contain just as much, if not more, living constitutionalism than probably any other three-year period in the Court's history. 

I don't agree with all of the post's case descriptions, but overall an important point is made.  

But I would reframe the question somewhat.  Given constraints of institutionalism, precedent, and the practical need to produce a majority opinion, I think the question is not so much whether the Court's opinions are strictly originalist in every sense, but whether they are moving the Court in a generally originalist direction.  


Ryan Williams: Historical Fact
Michael Ramsey

Ryan C. Williams (Boston College Law School) has posted Historical Fact (Notre Dame Law Review, Vol. 99, No. __, 2024) (34 pages) on SSRN.  Here is the abstract:

The growing emphasis on history as a criterion of constitutional decision-making in Supreme Court jurisprudence has raised the importance of a distinctive type of judicial fact-finding—namely, the investigation and) resolution of contested questions of historical fact. Although history has always played an important role in constitutional adjudication, its primary role has traditionally been as an input to constitutional interpretation. But in cases like New York State Rifle & Pistol Association v. Bruen, the Court has increasingly instructed that factual determinations regarding the content, meaning, purposes, and effects of decisions taken in the distant past should also guide the lower courts’ application of the interpretively determined constitutional meaning to contemporary legal disputes.

The growing importance of historical fact determinations in constitutional litigation raises significant questions about the appropriate mechanisms for historical fact-finding and the allocation of institutional authority and responsibility among the different layers of the federal judiciary. Bruen provides a useful case study in the complexities that are likely to attend this project. The Bruen Court’s guidance to lower courts emphasized techniques conventionally associated with adjudicative fact-finding, such as party-presentation of evidence and allocations of burdens of proof as mechanisms to resolve epistemic uncertainty about the relevant historical facts. But the Court also signaled that the historical facts thus found might carry broad precedential effects that will bind non-parties and considered extra-record evidence, including third-party amicus briefing and the Court’s own independent research, in discerning the facts it deemed relevant to the case before it. Bruen thus somewhat awkwardly straddles the line between assessing claims about history through conventional adjudicative fact-finding and the techniques more commonly associated with the finding of so-called “legislative” or “nonadjudicative” facts.

This Essay argues that this unresolved tension in Bruen presents a challenge with which courts are likely to struggle in translating historical facts into legally operative facts and legal conclusions. An approach that emphasizes party control and adjudicative fact-finding is likely to produce significant redundancy, inefficiency, and inconsistency in application. But an approach that treats historical fact-finding as a pure question of nonadjudicative fact carries its own drawbacks, including enhancing the risk that binding precedential rules will be formulated on incomplete and potentially inaccurate understandings of the historical record. This Essay examines this tension and suggests possible ways forward for lower courts tasked with implementing doctrines that hinge on historical fact-finding.

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


Adrian Vermeule on Nonoriginalism and Trump Disqualification
Michael Ramsey

At the New Digest, Adrian Vermeule (Harvard): The Non-Originalist Decision That May Save Trump - Griffin’s Case and “The General Spirit of the Constitution”. From the introduction:

... The irony looming over the situation is that our current Court, stocked with a supermajority of Justices who consider themselves “originalists,” may well end up ruling in Trump’s favor on the basis of a precedent that is profoundly non-originalist in method. Indeed that precedent, Griffin’s Case, decided in 1869, underscores what I have called “the paradox of originalism.” Today’s originalists look backwards to anchor the meaning of law in the public understandings of earlier eras — either the founding era or, in the case of the Reconstruction Amendments, the post-Civil War era. But the public legal cultures, and public understandings of law, of those periods were not themselves originalist. The relevant lawyers and judges were instead steeped in a far older tradition, the classical legal tradition, and thus drew upon modalities of legal argument and interpretation that today’s originalists reject.

Griffin’s Case was decided by Salmon P. Chase, then serving as Chief Justice of the United States, while hearing appeals on circuit in Virginia. (In the institutional practice of the day, Supreme Court Justices would “ride circuit” to hear appeals from federal district courts). As such, it is not technically a binding precedent on our current Supreme Court, but if and when the Court takes up the case, the decision by Chase will inevitably play a central role as the leading persuasive precedent, and one of the few precedents of any kind, on the disqualification issue.

The procedural posture of Griffin’s Case is complex, and has been ably explained by Blackman and Tillman. As the complexities are irrelevant for my purposes, I will skip to the nub of the issue. Chase held that the disqualification embodied in Section 3 is not “self-executing,” legal parlance meaning that Congress must first implement the disqualification by appropriate legislation under Section 5 of the 14th Amendment. If Griffin’s Case is correct in this regard, then the case for disqualifying Trump immediately collapses, as no proceeding conducted under congressional legislation has found Trump to have participated in or aided “insurrrection.”

The point of interest here is Chase’s rationale for this conclusion, which rested on a modality of argument that today’s originalists profess to reject altogether. Chase argued, in essence, that the consequences to the constitutional order from holding Section 3 to be self-executing would be intolerable, creating a kind of political-legal chaos and inflicting forms of targeted injustice inconsistent with the “general spirit of the Constitution.” Avoiding such consequences was itself a good legal reason to weight the scales of interpretation against self-execution. Wrote Chase, “in the examination of questions of this sort, great attention is properly paid to the argument from inconvenience. This argument, it is true, cannot prevail over plain words or clear reason. But, on the other hand, a construction, which must necessarily occasion great public and private mischief, must never be preferred to a construction which will occasion neither, or neither in so great degree, unless the terms of the instrument absolutely require such preference. Let it then be considered what consequences would spring from the literal interpretation contended for…”


Proving Insurrection:  Section Three and Standards of Proof
Jaden Lessnick & Hunter Mason

[Ed.: For this guest post we welcome Jaden M. Lessnick, a 2023 graduate of the University of Chicago Law School, and & T. Hunter Mason, a 2023 graduate of Yale Law School.  They are both clerking for a judge on the federal court of appeals.  All views and errors are their own.]

In the wake of the Colorado Supreme Court’s momentous decision to remove former-President Trump from the state’s primary ballot, commentators have focused on two primary questions:  What happened (did Trump engage in insurrection on January 6, 2021)?  And if so, what are the consequences (is Trump disqualified from seeking the presidency)?  Much attention has rightly been trained on Professors William Baude and Michael Paulsen’s primary contentions about Section Three of the Fourteenth Amendment, including whether the provision is self-executing, whether the President is an “officer,” and the like.  Controversial as those questions may be, we comment on another issue of no lesser consequence:  the appropriate evidentiary standard required to disqualify a candidate for election under Section Three.  How sure must we be about what happened on January 6 to disqualify Trump from holding office?

The relevant Colorado election code provides, “The party filing the challenge has the burden of to sustain the challenge by a preponderance of the evidence.”  The Colorado state district court nevertheless concluded that the petitioners “met the higher standard of clear and convincing evidence.”  The Colorado Supreme Court ultimately held, inter alia, that the proceedings set forth by Colorado law do not violate the Fourteenth Amendment’s Due Process Clause, but the majority did not address the evidentiary standard in so holding.  The dissent, in contrast, suggested that “an expedited hearing absent any discovery procedures and with a preponderance-of-the-evidence standard is not the appropriate means for adjudicating a matter of this magnitude.”

We thus make two brief points.  First, we posit that the Constitution confers on otherwise-qualified individuals the political right to seek election.  Second, we suggest that clear and convincing evidence is necessary to abridge that interest under Section Three.  (We assume for the sake of this piece that disqualification does not presuppose a prior conviction for insurrection- or rebellion-related offenses.)  We take these in turn.

The Right to Hold Office and Due Process

In his dissenting opinion, Justice Carlos Samour castigated the Colorado Supreme Court’s majority for “depriv[ing] someone of the right to hold public office without due process of law.”  “Section Three,” he observed, “does not spell out the procedures that must be followed to determine whether someone has engaged in insurrection after taking the prerequisite oath.”  He continued by arguing that such specification is for Congress to carry out pursuant to the power granted in Section Five of the Fourteenth Amendment. 

Reasonable—indeed, brilliant—minds have disagreed on the merits of Section Three’s self-execution and the legitimate fountain of executory authority.  But Justice Samour’s point poses an interesting question even if the section’s disqualification is self-executing.  Because we cannot expect persons desirous to run for federal office to evaluate objectively their qualification under Section Three (and other constitutional provisions), there must be some public forum in which challenges to their qualifications may be adjudicated.  Professors Baude and Paulsen describe the plurality of potential fora where the question of Section Three disqualification might be considered.  In many instances, a decision by state election officials will eventually arrive before a court for review.  Justice Samour’s question then takes on special relevance:  If an individual indeed has “the right to hold public office,” what must the adjudicatory process for removing that right look like?  The permutations of possible procedural forms are legion.  Should the trial be before a jury or will a bench trial suffice?  What are the applicable standards of review, burdens of proof, and evidentiary rules?  And if Congress need not stipulate which among the many options is appropriate, how are the adjudicators to decide?  More importantly, are there any constraints on their choosing?  We take for ourselves only the standard-of-proof question and leave for inevitable future debate the remainder of these consequential issues.

But prior to the multitude of procedural questions, there arises the inquiry as to whether there is any right to run for or hold office to which procedural protections ought to attach.  Without such a right, disqualification would pose no constitutional defect, either procedurally or substantively.  The Constitution’s primary procedural bulwark against deprivation of individual rights by the states is the Due Process Clause of the Fourteenth Amendment.  As the Supreme Court has explained, the Clause “imposes constraints on governmental decisions which deprive individuals of ‘liberty’ or ‘property’ interests[.]”  Yet scholars dispute whether the right to hold office is one such liberty or property interest covered by the clause.  Professors Baude and Paulsen, for example, note that “it is far from clear” that public office is the sort of “private vested right[]” protected by procedural due process.

Yet we believe that the Constitution implicitly confers a political right to hold office on all those who are qualified by the instrument’s terms, and that right—regardless of whether it qualifies as “liberty” or “property” under the Due Process Clause—demands some procedural safeguards.  In Prigg v. Pennsylvania, the Supreme Court proclaimed that “[if] . . . the Constitution had stopped at the mere recognition of the right, without providing or contemplating any means by which it might be established and enforced, in cases where it did not execute itself, it is plain that it would have been, in a great variety of cases, a delusive and empty annunciation.”  That principle, though announced in a case infamous for the right at issue (the right to recapture fugitives from slavery), was founded on sound constitutional reasoning.  (The Court arguably misapplied that principle in the factual context of Prigg, but that does not impeach the general maxim that constitutional rights are to be protected from public curtailment by some process.)  Justice Joseph Story wrote in Prigg that the same absurdity of vacuous promises might not arise where a constitutional provision is self-executing.  But even where rights-granting provisions are self-executing, individuals need some means of asserting their rights against the public.  And so, where the Constitution recognizes a right, it also begs some minimum process for rights claimants to vindicate that right.

So, does the Constitution recognize a right to hold public office upon election?  We think it does, though not in so many words.  Article II, Section 1 declares that “[n]o person . . . shall be eligible to the Office of President” unless they meet requirements of citizenship, age, and residency.  The necessary implication is that anyone meeting those requirements—and not otherwise disqualified under separate provisions—is eligible.  Article VI likewise confirms the accessibility of office to anyone qualified and duly elected by forbidding the use of religious tests to limit candidate eligibility.  There was also debate at the Philadelphia Convention about the desirability of providing salaries for elected officials; the main object in view of the proponents of robust salaries was to enable the election of sharp minds who lacked independent wealth.  The Supreme Court has acknowledged “the right of being chosen” to fill public office in the seminal case Powell v. McCormack.  In the same case, the Court discussed the converse right of the people “to be represented by men of their own choice.”  From these considerations, we conclude—uncontroversially, in our view—that the Constitution recognizes a right to hold office.  Whether granted under the Due Process Clause or the Constitution as a whole, that right begs protection from unlawful curtailment.  In the inevitable proceedings to vindicate the right, there must be some determination of what process is due to the claimant. 

Our federal electoral system virtually assures that an assertion of the right to hold office by an ostensibly unqualified candidate will give rise to proceedings where the candidate’s right is challenged and defended.  Although many people potentially possess the right, the Constitution contemplates that each would-be candidate’s qualifications be proven before the right can be exercised.  States create the procedures by which a hopeful official may initiate his or her candidacy.  In Colorado, as in many states, the process begins with the candidate’s certification that he or she is indeed qualified under the Constitution to run for the desired office.  Having asserted the right to hold office, the claimant then faces potential challenges to the self-certification of his or her own qualification.  Challengers to presidential candidates might contest the candidate’s age or citizenship, or, as in the Colorado case, whether a candidate engaged in insurrection such that he or she is disqualified under Section Three.  Donald Trump met his initial burden to claim the right to hold the President’s office by certifying his eligibility for the same.  The electors disagreed, and so they brought suit in state court to adjudicate Trump’s qualifications.  That adjudication proceeded under state-created procedures with a state-imposed burden of proof.  But for a right conferred by the federal Constitution, is there any federal rule as to the burden of proof that challengers must carry in disproving a candidate’s qualifications?  It is to this question we now turn.

Standard of Proof

The decision over the appropriate standard of proof “is more than an empty semantic exercise.”  As the Supreme Court put it in Santosky v. Kramer, “the minimum standard of proof tolerated by the due process requirement reflects not only the weight of the private and public interests affected, but also a societal judgment about how the risk of error should be distributed between the litigants.”  The requisite standard of proof in any proceeding embodies our societal attitudes about the interests at stake—often vis-à-vis the Constitution.  The Constitution does not designate a standard of proof for any sort of legal proceeding, but courts have annexed to procedural guarantees set forth in the text policy considerations that animated historical use of specific standards in given contexts.  Thus, standards of proof in many instances have been constitutionalized as requisites of due process or other constitutional provisions, such as the amount-in-controversy requirement in diversity proceedings.

The three primary standards of proof are familiar.  Civil disputes over monetary damages usually proceed under a preponderance standard given “society’s ‘minimal concern with the outcome,’ and a conclusion that the litigants should ‘share the risk of error in roughly equal fashion.’”  The Court uses the intermediate clear-and-convincing-evidence standard when “[t]he interests at stake . . . [are] more substantial than the mere loss of money,” such as in proceedings involving the termination of parental rights or civil detention.  And of course, given the fundamental liberty interests at stake in a criminal proceeding, “our society imposes almost the entire risk of error upon itself” by using the beyond-a-reasonable-doubt standard.

We think the clear-and-convincing-evidence standard appropriate in disqualification proceedings.  The political interests involved—both private and public—are far greater than mere monetary interests in which society has minimal concern.  Beyond the right to seek office described above, disqualification implicates people’s ability to vote for their preferred political candidate.  Of course, there is not an unqualified right to vote for just anyone.  As we have noted, the Constitution limits the class of people eligible to be President by imposing age, citizenship, and residency requirements.  The Constitution also, on Baude and Paulsen’s view, contains a self-executing “no insurrection” requirement.  But to enforce that requirement (like any of the others) necessarily involves factfinding, and factfinding necessarily involves the risk of error.  The decision to impose a disability based on events about which reasonable minds could disagree affects political interests at the very core of constitutional system.  If the standard of proof “indicate[s] the relative importance attached to the ultimate decision,” it is hard to imagine a more worthy candidate for an elevated evidentiary standard than electoral eligibility.

Beyond the usual risks of error inherent in any factfinding mission, we can imagine other ways in which error might arise in the disqualification decision.  For one, election cases often proceed on a compressed timeline.  Consider the Colorado case.  The petitioners filed their claim on September 6, 2023; the state supreme court issued its decision just three months later.  The discovery processes in Trump’s criminal proceedings, however, have not yet been completed, and there may be additional evidence—inculpatory or exculpatory—that comes to light.  Factual errors are more likely when the adversarial process is temporally truncated.  Second, more than in most cases, decisionmakers in disqualification proceedings may have subconscious political biases.  Error is more likely when the facts may be understood through political lenses, even if the factfinder makes a good-faith effort to assess the facts objectively.  January 6 is a prime example; many observers have vastly different views about the event despite being presented with the same evidence.  That potential for subjective, subconscious bias is especially likely when dealing with areas of the law that require some sort of historical exegesis.  Recent memory (before 2021) is devoid of well-known instances of insurrection or rebellion.  Adjudicating and applying the meaning of insurrection as used in Section Three therefore requires at least some investigation of the historical use of that term.

We are sensitive to the countervailing interests at play.  There is an undeniable political and moral valence to disqualification; our democracy would undoubtedly suffer in myriad ways were an insurrectionist elected President.  But even if a factfinder concluded that a candidate had not engaged in insurrection, members of the electorate might choose not to vote for that candidate based on their personal beliefs about the candidate’s involvement in insurrection.  If Trump is acquitted in his election-related trials, we would still expect a considerable subset of the population not to vote for Trump based in part on people’s belief that Trump did in fact engage in insurrection.  Put another way, the political process mitigates the consequence of an erroneous decision not to disqualify a candidate, thus militating in favor of a heightened evidentiary standard.

At the same time, the beyond-a-reasonable-doubt standard, which courts “hesitate[s] to apply . . . in noncriminal cases,” is perhaps too stringent.  First, a judgment of disqualification is not necessarily permanent.  Section Three provides for the removal of the disability upon two-thirds vote of each house of Congress.  The lack of permanency is not itself dispositive, as criminal convictions, for instance, are impermanent insofar as appellate and collateral relief can address erroneous outcomes.  But “permanency of the threatened loss” is at least a relevant consideration.  Second, a beyond-a-reasonable-doubt standard may suffer from the same political shortcomings as the preponderance standard.  Even subconscious political biases may render the beyond-a-reasonable-doubt standard all but insuperable, even if the factfinders approach the disqualification inquiry in good faith.  Such an onerous standard would go too far in the other direction, risking the public weal by virtually ensuring that the disqualification for insurrectionist behavior never attaches.

It is worth repeating that we find ourselves in uncharted waters, and no cases or principles of constitutional interpretation provide an unassailable answer to the question before us.  “There are no hard-and-fast standards governing the allocation of the burden of proof in every situation.  The issue, rather, ‘is merely a question of policy and fairness based on experience in the different situations.’”  We think that the interests at stake in the disqualification inquiry are too great to be protected only by a preponderance-of-the-evidence standard.  A clear-and-convincing-evidence threshold appropriately minimizes the risk of erroneous disqualification while ensuring that Section Three has practical bite.


Our observation here may seem inconsequential in light of the Colorado trial court’s view that the clear-and-convincing-evidence standard was met in Trump’s case.  Yet Colorado’s decision to impose the minimal preponderance-of-the-evidence standard for proving disqualification from office underscores the consequence of this question.  If states can decide the burden of proof needed to deprive an individual of a federal political right, we risk a disuniform approach that could determine national elections.  If a presidential candidate is disqualified in battleground states because a lower standard of proof is required for challengers to disprove his or her eligibility, he or she may lose the entire election based solely on the procedural choice of one or a few states.  The ability of one or a few states to determine the outcome of national elections is fundamentally inconsistent with the goal of nationwide representation embodied in the President’s office.

True, the Constitution commits much discretion to the states in regulating even federal elections and the federal right to vote therein.  States can determine who votes for federal officials within their territory by imposing residency and identification requirements.  They also impose disqualifications of their own on the voting rights of felons.  The disqualification of felons already has a federal standard of proof attached by virtue of the criminal nature of the proceeding that results in their disqualification.  And perhaps there should be a federal standard of proof for state-created residency requirements and the like when those requirements impinge on the fundamental federal right to vote.  But quite apart from these points, state-specific restrictions do not create disparate standards for determining a single individual’s political right as does state imposition of disparate standards of proof for eligibility to a national office.  We believe that uniformity in that determination is requisite for a full and fair election.

Discussion of Section Three disqualification has ignited a firestorm in anticipation of the 2024 presidential election—as well it should.  The ideas sown by Professor Baude, Paulsen, and others have now borne fruit in Colorado and may yet affect Trump’s candidacy for the high office in other states.  We hold no sympathy for those who have engaged in insurrection, and we applaud the instinct, constitutionalized in Section Three, that such individuals should not be eligible for the public trust of office-holding.  Herein we have merely attempted to engage with a serious procedural question raised by the Colorado Supreme Court’s decision.  Even insurrectionists are due process by which deprivation of their rights is constitutionally justified.  In these divisive times, we think it would be prudent to assure ourselves and our political rivals that when we decide questions of such monumental importance as the qualifications of the candidates for President, we are doing so on clear and convincing grounds.


Delegating War Powers (Final Version)
Michael Ramsey

The final version of my article Delegating War Powers, 96 Southern Calif. L. Rev. 741 (2023) (co-authored with Matthew Waxman of Columbia Law School), is now posted on SSRN.  Here (again) 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.

Thanks again to the great editors at the Southern California Law Review for their work on this project.


Steven Calabresi et al.: Jack Smith is Unconstitutional

Steven Calabresi, Edwin Meese and Gary Lawson have filed this amicus brief in U.S. v. Trump (the presidential immunity case).  From the introduction:

This Court should reject Mr. Smith’s request for certiorari before judgment for the simple reason that he lacks authority to ask for it. Nor does he have authority to conduct the underlying prosecution. Those actions can be taken only by persons properly appointed as federal officers to properly created federal offices. Neither Smith nor the position of Special Counsel under which he purportedly acts meets those criteria. And that is a serious problem for the American rule of law—whatever one may think of the defendant or the conduct at issue in the underlying prosecution.

The illegality addressed in this brief started on November 18, 2022, when Attorney General Merrick Garland exceeded his statutory and constitutional authority by purporting to appoint Smith to serve as Special Counsel for the Department of Justice (DOJ). Smith was appointed “to conduct the ongoing investigation into whether any person or entity [including former President Donald Trump] violated the law in connection with efforts to interfere with the lawful transfer of power following the 2020 presidential election or the certification of the Electoral College vote held on or about January 6, 2021.” See Off. of the Att’y Gen., “Appointment of John L. Smith as Special Counsel,” Order No. 5559-2022 (Nov. 18, 2022).

Attorney General Garland cited as statutory authority for this appointment 28 U.S.C. 509, 510, 515, and 533. But none of those statutes, nor any other statutory or constitutional provisions, remotely authorized the appointment by the Attorney General of a private citizen to receive extraordinary criminal law enforcement power under the title of Special Counsel. First, the Appointments Clause requires that all federal offices “not otherwise provided for” in the Constitution must be “established by Law,” U.S. Const. art. II, §2, cl. 2, and there is no statute establishing the Office of Special Counsel in DOJ. The statutory provisions relied upon by DOJ and lower courts for the appointment of special counsels over the past half century do not authorize the creation and appointment of special counsels at the level of United States Attorneys. And United States v. Nixon, 418 U.S. 683 (1974), does not hold to the contrary, because no question was ever raised in that case about the validity of the independent counsel’s appointment. That case concerned the relationship between the President and DOJ as an institution, not between the President and any specific actor purportedly appointed by DOJ.

Second, even if one overlooks the absence of statutory authority for the position, there is no statute specifically authorizing the Attorney General, rather than the President by and with the advice and consent of the Senate, to appoint such a Special Counsel. Under the Appointments Clause, inferior officers can be appointed by department heads only if Congress so directs by statute, see U.S. Const. art. II, §2, cl. 2, and so directs specifically enough to overcome a clear-statement presumption in favor of presidential appointment and senatorial confirmation. No such statute exists for the Special Counsel.

Third, the Special Counsel, if a valid officer, is a superior (or principal) rather than inferior officer, and thus cannot be appointed by any means other than presidential appointment and senatorial confirmation regardless of what any statutes purport to say. This is true as a matter of original meaning, and it is even true as a matter of case law once one understands that neither Morrison v. Olson, 487 U.S. 654 (1988), nor Edmond v. United States, 520 U.S. 651 (1997), can plausibly be read to say that any person who is in any fashion subordinate to another executive official other than the President is an “inferior” officer. Such a reading of those decisions leads to the ludicrous result that there is only one noninferior officer in every executive department.

To be sure, there are times when the appointment of a Special Counsel is appropriate. And statutes and the Constitution both provide ample means for such appointments by allowing the use of existing United States Attorneys. Any number of United States Attorneys have performed with distinction the function of serving as a Special Counsel. For example, on December 30, 2003, Patrick Fitzgerald, who was then the U.S. Attorney for the Northern District of Illinois, was lawfully appointed by the then-acting Attorney General to investigate the Valerie Plame leak affair, which arose within the jurisdiction of the District of Columbia District Court. Mr. Fitzgerald, who was a Senate-confirmed officer of the United States, prosecuted and secured the conviction of Vice President Richard Cheney’s Chief of Staff, Scooter Libby, in the U.S. District Court for the District of Columbia. Other recent examples involve the Senate-confirmed U.S. Attorneys Rod Rosenstein, John Huber, and John Durham. All of these investigations and prosecutions of high-level wrongdoing were lawful.

What federal statutes and the Constitution do not allow, however, is for the Attorney General to appoint a private citizen, who has never been confirmed by the Senate, as a substitute United States Attorney under the title “Special Counsel.” That is what happened on November 18, 2022. That appointment was unlawful, as are all the legal actions that have flowed from it, including citizen Smith’s current attempt to obtain a ruling from this Court.

Seems right to me, although it mostly turns on the question of statutory authorization, on which I don't have an informed opinion.

(Via Volokh Conspiracy.)


John Harrison & Saikrishna Prakash on Trump Disqualification [with my Comments] [Updated]
Michael Ramsey

In the Wall Street Journal, John C. Harrison & Saikrishna Prakash: If Trump Is Disqualified, He Can Still Run.  From the introduction: 

The Colorado Supreme Court on Tuesday ordered that Donald Trump’s name not appear on next year’s Republican presidential primary ballot. The court found that Mr. Trump “engaged in insurrection” on Jan. 6, 2021, and that Section 3 of the 14th Amendment bars a person who has done so from serving as president. Even if these findings are both correct, the Constitution doesn’t bar Mr. Trump from the ballot.

Presidents are selected through an indirect, drawn-out process. In November 2024, voters will choose presidential electors. When voting, citizens will see the names of presidential candidates when, in fact, they are voting for the electors who will later vote for president.

One problem for the Colorado court’s ruling is that the 14th Amendment never declares that voters can’t select presidential electors who are pledged to vote for nonqualified candidates. The 14th Amendment disqualifies certain people from holding federal and state office and doesn’t explicitly regulate ballot access. Nor does it expressly authorize state officials to judge the qualifications of candidates or electors.

The more decisive flaw is that the ruling ignores a key provision of the 20th Amendment, which provides: “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” (emphasis added). ...

Agreed!  Assuming Trump is disqualified by Section 3 of the Fourteenth Amendment, he is disqualified from taking office as President.   The relevant language is "No person shall ... hold any office ..." That language doesn't prevent him from seeking office.  It doesn't prevent Republicans from nominating him.  It doesn't prevent him from appearing on the ballot. It doesn't prevent electors from pledging to vote for him, and it doesn't prevent them from voting for him. It just prevents him from holding office.


Article II, Section 1 says: "Each State shall appoint, in such Manner as the Legislature thereof shall direct, a Number of Electors" who then vote for the President.  Pursuant to this clause, states have established a popular vote to select a person for whom state electors are required to vote.  And in creating this process, I would think that states can provide that only persons actually qualified to hold the office can appear on the ballot as candidates for the office.

Thus, assuming that Colorado law so provides, and assuming that Trump is actually disqualified from holding the office by Section 3, the Colorado court is correct that as a matter of state law Trump is barred from appearing on the ballot.  That is, Professors Harrison and Prakash are correct that Section 3 doesn't bar Trump from the ballot, but the Colorado court is correct (under the relevant assumptions) that he is barred in Colorado.

And further: even though the bar is a matter of state law, it depends on a conclusion of federal law.  (My special civil procedure consultant tells me this is called an "embedded federal issue.")  So the U.S. Supreme Court has jurisdiction to review it.

(Via How Appealing.)

UPDATE: Andrew Hyman comments: 

I agree that Section 3 does not require removal of an “insurrectionist” from the ballot, but does prevent him from “holding” office (as I mentioned back in September).  Michael Ramsey suggests that state law rather than federal law might nevertheless require such a person to be removed from the ballot, but I’m skeptical. If the 20th Amendment postpones qualifications until after the election, then apparently it postpones both state and federal qualifications, not just federal ones.  Even putting aside the 20th Amendment, we get the same result, because cases like Powell v. McCormack confirm that lists of qualifications in the Constitution are exclusive; we should distinguish qualifications for office-seekers as opposed to qualifications for office-holders. The qualification in Section 3 is only for office-holders, but the other presidential qualifications (in Article II of the Constitution) treat office-seekers and office-holders the same, so they would likely bar states from adding to the qualifications of office-seekers.


Joseph Blocher: Safe Storage and Self Defense from Heller to Bruen
Michael Ramsey

Joseph Blocher (Duke University School of Law) has posted Safe Storage and Self Defense from Heller to Bruen (North Carolina Law Review, forthcoming) (26 pages) on SSRN.  Here is the abstract:

This Article, prepared for a symposium honoring Walter Dellinger, analyzes and criticizes an often-overlooked portion of District of Columbia v. Heller: The Court’s invalidation of the District’s requirement that firearms be kept “unloaded and dissembled or bound by a trigger lock or similar device.” The Heller majority did this not by asking whether such a requirement would make it too hard to use a gun in self-defense, but rather by insisting that the safe storage requirement—unlike most generally applicable rules and also unlike Founding-era gun laws—did not contain a self-defense exception.

Part I of the Article unpacks the Justices’ treatment of the safe storage requirement in Heller, first at oral argument and then in the opinions. Part II explains why the refusal to recognize a self-defense exception was so significant and what that refusal illustrates about the Court’s recent approaches to constitutional doctrine more broadly. The Court dodged an important and genuinely hard question—whether safe storage requirements impermissibly burden armed self-defense—by manufacturing an easier one: Whether a city can ban “functional firearms.” This move exemplifies both the Court’s failure to grapple with the relationship between the Second Amendment and self-defense, and—broader still—its tendency to defer to what it sees as the wisdom of the past (when safe storage laws all had implied self-defense exceptions) but not of today. Part III shows how Bruen has transformed that tendency into a constitutional rule, effectively codifying the doctrinal trend that Heller’s worst holding exemplified.


Podcast: Wurman vs. Rosenblum on SEC v. Jarkesy
Michael Ramsey

At the National Constitution Center, The Future of the Securities & Exchange Commission.  Here is the description of the podcast:

On Wednesday, November 29, the Supreme Court heard oral arguments in Securities and Exchange Commission v. Jarkesy. The case involves three constitutional challenges to the agency, involving the right to a jury trial; the nondelegation doctrine; and the scope of executive power. In this episode, Noah Rosenblum, assistant professor of law at NYU, and Ilan Wurman, assistant professor at the Sandra Day O’Connor College of Law at Arizona State University, join Jeffrey Rosen to break down the arguments in the case, which pits the federal regulatory agency against a hedge fund manager charged with securities violations. They break down the constitutional claims at play, and discuss how the case could affect the future of the SEC and the modern administrative state as we know it. 



Noah Rosenblum is an assistant professor of law at New York University School of Law, where he was previously the Samuel I. Golieb Fellow in Legal History. Rosenblum works on state and federal administrative law, constitutional law, and legal history. He wrote a recent piece in The Atlantic on the SEC case, “The Case That Could Destroy the Government.”

Ilan Wurman is an associate professor at the Sandra Day O’Connor College of Law at Arizona State University, where he teaches administrative law and constitutional law. He is the author of a casebook on Administrative Law Theory and Fundamentals (2021), as well A Debt Against the Living: An Introduction to Originalism (2017), and The Second Founding: An Introduction to the Fourteenth Amendment (2020).

Jeffrey Rosen is the president and CEO of the National Constitution Center, a nonpartisan nonprofit organization devoted to educating the public about the U.S. Constitution. Rosen is also a professor of law at The George Washington University Law School and a contributing editor of The Atlantic.  

RELATED:  Some recent thoughts on Jarkesy from me (on removal) and from Will Baude (on the jury issue).


Randy Barnett Reviews Cass Sunstein's "How to Interpret the Constitution"
Michael Ramsey

In the Claremont Review of Books, Randy Barnett: Originalism and Its Discontents.  From the introduction: 

... Some 30 years after the failed nomination of Bork, President Donald Trump nominated Circuit Judge Neil Gorsuch to assume the seat vacated by the death of Justice Antonin Scalia. Hearings occupied four days. Just over two months after his nomination, Gorsuch was confirmed by a vote of 54-45, with two Democrats joining all 52 Republicans.

Unlike previous nominees, Gorsuch expressly endorsed originalism as the proper method of constitutional interpretation. Indeed, he had been chosen by the White House largely because he had publicly endorsed originalism. Senate Democrats sought to make an issue of his commitment. Yet this time both the result and the popular discourse were different. Despite harsh questioning by Senate Democrats, there was no public outcry about Gorsuch’s originalism, no litany of the civil rights that would be rolled back were he to be confirmed.

What happened over that 30-year period to account for this difference in the tenor and outcome of the debate? Why did the criticisms of originalism aimed at Bork get such traction while the critics who questioned Judge Gorsuch repeatedly spun their wheels?

Part of the difference, surely, was that the Senate was now controlled by Republicans. But that does not explain why all previous Republican nominees in the 30-year interim declined to adopt the label “originalist.” A bigger part of the difference was that in the 30 years between Bork and Gorsuch a small handful of legal academics—a very small handful—developed the theory of originalism. Because of them, the intellectual terrain had greatly shifted from 1987 to 2017.

With Gorsuch’s elevation to the Supreme Court, the efforts of these scholars bore fruit. After Gorsuch was confirmed, both Brett Kavanaugh and Amy Coney Barrett self-identified as “originalists.” To a significant degree, so too did Justice Ketanji Brown Jackson, without using the label. Justice Jackson’s testimony led some on both the left and right to claim that originalism had become so amorphous as to be meaningless. But in this they were mistaken. Even an insincere commitment to the original meaning of the Constitution is the homage that vice plays to virtue.


Nothing exemplifies the mainstreaming of originalism more than the latest book by Cass Sunstein, the prolific and highly regarded Robert Walmsley University Professor at Harvard Law School. In How to Interpret the Constitution, Sunstein treats originalism as an entirely respectable—though erroneous—method of interpretation. Unlike purely political partisans, he demonstrates a knowledge of the nuances of modern originalist theory.

Because Sunstein repeatedly criticizes originalism, the extent of his concessions may not be obvious to casual readers. To illustrate, I must string together some disparate quotations: “The text matters. If judges do not show fidelity to authoritative texts, they cannot claim to be interpreting them.” “To read the Constitution, we need to know the English language. But to understand what the Constitution means, an understanding of the English language is not nearly enough.” “Many people insist that the text of the Constitution must be interpreted in a way that is consistent with the original semantic meaning of its words. Semantic originalism insists that in deciding on the meaning of words, we have to ask a question about history: What did the word mean, simply as a matter of the English language, at the time of ratification?” “If the semantic meaning of words shifts over time, it is fair to say that what is binding is the original semantic meaning, not some new semantic meaning. Almost everyone almost always accepts semantic originalism.” ...

RELATED:  In the same issue, Ilya Shapiro reviews James Rosen's Scalia: Rise to Greatness, 1936–1986.