« December 2023 | Main | February 2024 »

34 posts from January 2024


An "Invasion" at our Southern Border? [Updated]
David Weisberg

The Constitution provides, in Article I, Section 10, Clause 3: “No State shall … engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.”  In light of the surge in illegal entries across our Southern Border, Governor Abbott of Texas has declared, pursuant to the Invasion Provision, that Texas has the “constitutional authority to defend and protect itself.”  And he has ordered the erection of barbed wire fences on the Texas side of the Rio Grande, etc.  (Previous Originalism Blog posts on this subject are collected here.)

In 1788 and today, the term “invasion,” just like virtually ever other word in the English language, had and has a degree of vagueness in meaning.  Does an “invasion” necessarily denote armed troops entering a foreign territory with hostile intent?  No, because there can be an invasion of ants in a basement.  And, did you ever watch either version of the movie “Invasion of the Body Snatchers”?  No armed troops in that screenplay.  The vagueness of “invasion” is disclosed in any dictionary, whether published in 1788 or today.  There is, moreover, absolutely no reason to believe that the meaning of “invasion” has changed since 1788; nothing in the context or our current understanding of the Invasion Provision suggests any such change in meaning.  (And this is to leave aside the infinite regress generated by the Paradox of Originalism, which results from the presumption that a text created in 1788 might have a meaning that can be ascertained only by consulting dictionaries or other literary materials that are roughly contemporaneous with that text.  Seehere.)

If the meaning of “invasion” at all relevant times has been somewhat vague, what is the best understanding of that word in the context of the Invasion Provision?  The Invasion Provision itself provides a definitive answer.  An “invasion” referred to in the Invasion Provision is one that justifies a State in “engag[ing] in War” to counter that invasion.  Governor Abbott of course is not contemplating shooting people who illegally enter Texas, or even holding them indefinitely as prisoners of war until the war has ended (while affording them full rights under the customary laws of war and the Geneva Conventions of 1949).  But, if those illegal entries constituted an “invasion” that justified “war” under the Invasion Provision, shooting the invaders or holding them as prisoners of war is exactly what one would expect Texas to do.  It follows, I submit, that the invocation of the Invasion Provision by Governor Abbott is unjustified, as even he knowingly or unknowingly implicitly concedes.     

UPDATE (by Michael Ramsey): From Ilya Somin at Volokh Conspiracy: More on Why Immigration is not "Invasion".

I have previously criticized Texas's badly flawed argument that illegal immigration and cross-border drug smuggling qualify as an "invasion," thereby triggering the state's constitutional authority to "engage in war" in response (see also here). Prominent legal scholars Frank Bowman (Univ. of Missouri) and Steve Vladeck (Univ. of Texas) have recently posted articles on the same topic, at Just Security and Lawfare, respectively.

Bowman offers a detailed originalist critique of the invasion argument, surveying a number of relevant founding-era sources ...


Amar Brief in the Trump Disqualification Case (with Responses)
Michael Ramsey

Akhil and Vikram Amar have filed this amicus brief in Trump v. Anderson, the Colorado disqualification case.  From the Summary of Argument:

In Part One of what follows, we briefly tell the story of the First Insurrection of the 1860s—the insurrection before the Second Insurrection of the 1860s, typically known today as the Civil War. In that First Insurrection, high-level executive officials in Washington, DC, violated their solemn constitutional oaths as part of a concerted plan not just to hand over southern forts to rebels, but also to prevent the lawful inauguration of the duly elected Abraham Lincoln.

The parallels between this insurrection in late December 1860 and January 1861 and the more recent Trump-fueled insurrection of late December 2020 and January 2021 are deeply and decisively relevant to today’s case. (Throughout this brief, we accept the factual findings of the trial court regarding these events.) If one thinks—as do many journalists and noisemakers lacking historical expertise—that Section Three was only about “insurrections” akin to the Civil War, then the Trump-fueled insurrection of 2020–21 pales in comparison. The invocation of Section Three looks rather cutesy, a gimmick of clever lawyers and law professors. But if one understands—as did all the men who drafted and ratified Section Three—that before the giant insurrection that began in mid-April 1861 there was a smaller one that was also of central concern, then the matter looks entirely different.

Today’s facts are remarkably similar to those of the First Insurrection of the 1860s. In a crucial mid Feb. 1868 Senate discussion about a particular cabinet officer under President James Buchanan, Senator Jacob Howard passionately explained that this ex-officer should never sit in the Senate precisely because—long before Fort Sumter fell—this powerful oath-breaker, one of the nation’s “principal public functionaries,” had been part of a cabal “endeavoring to . . . beleaguer the city of Washington with the design of seizing it, and, at all events, preventing the inauguration of President Lincoln in the succeeding March.” ...

Of course, the precise actions, inactions, plots, intentions, and mens rea of Donald Trump in the insurrection of 2020–21 need to be properly evaluated before he is deemed ineligible under Section Three. As we explain in Part Two, the Constitution’s structure enables a fifty-state solution in which different states may properly have different procedures and protocols for implementing Section Three. Some states may carefully police ballot access even in primary elections; others will focus more on the general ballot. Still others may wait until vote tabulation begins; and yet another cluster of states may defer to Congress as the last actor when electoral-college ballots are unsealed. Different states may permissibly have different standards and modes of proof, both for presidential elections and state judicial elections (also covered by Section Three) and myriad elections in between.

States can have even stricter standards than Section Three provides, so long as such standards meet global federal  constitutional principles (free speech, due process, racial equality, etc.) as construed by this Court, and state constitutional requirements as understood by the states’ supreme courts. See Moore v. Harper, 600 U.S. 1 (2023). There is no federal constitutional requirement that any state even hold a popular presidential election. Each state’s greater power to not hold a binding election subsumes a lesser power to structure its presidential election in its own way, within a broad range. ...

In Part Two, we shall canvass a wide range of issues raised by this case and explain why many of them are easy. Of course the president is an “officer” covered by Section Three. Of course a detailed congressional statute is not necessary to implement Section Three. Of course an ineligible person is ineligible unless and until amnestied. Of course a person can engage in an insurrection with words as well as deeds. Of course an insurrection can begin locally. And so on. In the end, this momentous case is easier than it may at first seem, once one understands the historical events that triggered Section Three.

At Volokh Conspiracy, Kurt Lash responds on the "First Insurrection" point: Section Three and the "First Insurrection" … That Wasn't.  From the introduction:

The smaller "First Insurrection" (the brief capitalizes the term) supposedly involved an oath breaking cabinet member named John B. Floyd. Floyd, they argue, was a co-conspirator in the First Insurrection(ist) attempt in February 1861 to disrupt the counting of electoral votes and prevent the inauguration of Abraham Lincoln. Since the framers of Section Three intended this small failed First Insurrection to fall within the meaning of the text, they must also have intended to include the similarly small but briefly successful "insurrection" of January 6, 2021.

The brief is fun and imaginative, as is everything the Amars write. Unfortunately, in this case the historical evidence does not support the argument. Their brief is an unsuccessful attempt to place someone who wasn't there at an insurrection that did not occur. Even more damningly for their side, the brief calls attention to an 1862 statute that actually blows a hole through the already weak originalist case for disqualification.

And from later on:

The brief is doubly mistaken about John B. Floyd and the so-called "Two" Insurrections.  Floyd's treachery was part in the one great insurrection called the Civil War, and his treasonous actions occurred long before the 1861 counting of the electoral votes and the inauguration of Abraham Lincoln. Floyd's name remained infamous, but not because he played any role in interrupting the electoral count of the inauguration of Pres. Lincoln.

... In fact, the brief is triply wrong. Floyd could not have played a part in a First Insurrection(ist) conspiracy to disrupt the counting of electoral votes because there was no such conspiracy.

In the early weeks of 1861, Washington, D.C. was abuzz with rumors of invasion and attempted assassination. President-elect Lincoln's security team was so concerned that they made elaborate provisions for Lincoln's secret arrival in Washington. General Winfield Scott was convinced there was a secret conspiracy to disrupt the counting of electoral votes and prevent Lincoln's inauguration.

In order to determine whether such rumors had any basis in fact, on January 9, 1861, Congress appointed a select Committee to investigate the possible existence of insurrectionist conspiracies in the city of Washington. Throughout that January and early February, the select committee investigated and received hours of testimony from local informants and military officials, including General Scott. Scott was certain a secret conspiracy was afoot and he unsuccessfully tried to convince President Buchanan to bring the New York Seventh Regiment to D.C. to guard the capitol. Newspapers dutifully reported Scott's concerns, but were skeptical. According to the New York Herald, there was "not a scintilla of evidence" supporting Scott's concerns ...

Also at Volokh Conspiracy, Josh Blackman and Seth Barrett Tillman respond on the "officers" point: Professor Akhil Reed Amar and Professor Vikram Amar Retreat From Their "Global" Rule for the "Offices" and "Officers" of the Constitution.  From the introduction:

On January 18, Professor Akhil Reed Amar and Professor Vikram Amar filed an amicus brief in Trump v. Anderson, the Section 3 case. The brief was styled as in support of neither party, but the clear import of the brief is that the Supreme Court should disqualify Trump from the ballot. Professor Jason Mazzone describes the brief as "eye-popping and game-changing." We think that characterization is apt, but not for the reasons Mazzone described. As we read the brief, the Amars have retreated from the central position they put forward in an influential 1995 Stanford Law Review article. As their brief and other current commentary does not note their changed intellectual position, we wonder if they realize what they have done. 


Lee Strang on Challenges to Originalism
Michael Ramsey

An upcoming Federalist Society ten part half hour virtual series features Lee Strang (Toledo) discussing Challenges to Originalism.  Here is the trailer (not what you're expecting).  And here is the schedule:

February 6: Challenges to Originalism I: Originalism is impossible.

February 13: Challenges to Originalism II: Originalism is impracticable.

February 20: Challenges to Originalism III: Originalism is inconsistent with stare decisis and other important aspects of our constitutional practice.

February 27: Challenges to Originalism IV: Originalism is a facade made up by conservatives for conservative policy.

March 5: Challenges to Originalism V: Originalism is not up to the task of dealing with modern problems.

March 12: Challenges to Originalism VI: Originalism is unjust.

March 19: Challenges to Originalism VII: Originalism is inconsistent with democracy.

March 26: Challenges to Originalism VIII: Common good constitutionalism is superior to originalism.

April 2: Challenges to Originalism IX: Originalism is inconsistent with natural law.

April 9: Challenges to Originalism X: Living constitutionalism is superior to originalism.

Registration for the first session is available here.


Michael Resanovic on Adding Qualifications for Presidency
Michael Ramsey

Reader Michael Resanovic sends these comments on my prior post regarding states adding qualifications for presidency:

The Union is essentially a compact of compacts.  Parties to any compact retain all of the freedom that they naturally have absent the compact, save what they have collectively surrendered in entering into it.  I do not question the permanency of the Union, or that it is possible to amend the constitution so as to take away any of the electoral discretion that is being discussed.  But just as private individuals may do anything they may naturally until the social compact is altered to remove the right, states likewise enjoy freedom to add qualifications for Congress - or for their share of the presidential vote – until that discretion is properly ended by their common consent.

Now, I am aware of dicta in both the majority and dissents in Thornton stating that states may not add qualifications for the presidency. Here, I would suggest a distinction between adding qualifications for the presidency and adding qualifications for one’s vote:

Surely if a state only wants 45 year olds, it cannot pretend the President is not really President because the Electoral College just elected a 35 year old!  But saying that a state may not control qualifications for the office itself is not the same as saying that it may not control its own voting power.

The Governorship of Ohio has no minimum age.  However, if I privately determine to allow no one under 50 to have my vote, I am free to do so.  The qualifications for my vote are what I say they are.  I would suggest that the same principle pertains to the states.

If a state legislature is free to hold an internal vote, it is presumably free to write its own balloting rules so as to limit itself to the consideration of candidates who have, say, never served before (a one-term limit).  It would appear to me that nothing prohibits it from referring the matter to the people under the same rules.  I know you expressed disagreement as to this in a recent post “The Supreme Court Doesn’t Need to Decide (for now) Whether Trump is Disqualified”, asserting that if a public election were held, qualifications could not be added.  I wonder if you could elaborate on why that is so.  Neither the people collectively nor individually could claim that they are being denied something they necessarily must have.  It’s not like a congressional election where a popular vote must be held, something that in Thomas’ view still did not prevent the people from adding qualifications.  Indeed, what if the people themselves want a particular restriction, or even use their state constitution to order that the legislature refer the election to the people with such restrictions?  To quote Professor McGinnis, “…the states reserve the power […] because nowhere in the Constitution did they surrender that power.”

By way of a normative objection, one might say that the people can simply not vote for that person, but then we encounter the same problem that motivated the term limits movement in the case of Congressional elections.  The structure of elections can often create an artificial bias in favor of incumbents despite unpopularity.  Trump v Biden is a case in point.  But whatever can be said about what ought or ought not be law, nothing appears to me to stand in the way of a state imposing such limits.

"Invasion" and the Border
Michael Ramsey

In light of the developing situation between the Biden administration and the Governor of Texas regarding the border, here are some previous Originalism Blog materials: 

Robert Natelson and Andrew Hyman have this article posted on SSRN: The Constitution, Invasion, Immigration, and the War Powers of States (Br. J. Am. Leg. Studies 13(1) (2024)).  Here is the abstract:

By express and implied reservation, the Constitution permits states to wage defensive war and take other military action in response to invasion, insurrection, and transnational criminal gangs. This article examines the under-researched area of state war powers and how they interact with federal military and other foreign affairs powers. It also recovers the meaning of the Constitution’s term “invasion” and demonstrates that several judicial decisions have construed that term far too narrowly. The article ends with reflections on justiciability and remedies in state warpower cases.

Robert Natelson also had a series of essays in the Epoch Times based on the article, which Andrew Hyman summarized on this blog here, here and here.

At Volokh Conspiracy, Ilya Somin has several posts expressing an opposing view from an originalist-oriented perspective; the most recent is here:  Texas Gov. Greg Abbott Doubles Down On Dangerous Claim that Immigration is "Invasion".


Gregory Velloze: 'Cruel and Unusual' in 1689, 1791, and 1868
Michael Ramsey

Gregory Velloze (J.D., University of Southern California Gould School of Law) has posted 'Cruel and Unusual' in 1689, 1791, and 1868: Shifts in Incorporation (80 pages) on SSRN.  Here is the abstract:

Recently, the Supreme Court has acknowledged the scholarly debate over whether to apply the historical understanding of the Bill of Rights as ratified in 1791 or as incorporated through the Fourteenth Amendment in 1868. This acknowledgment raises two important issues with regards to the Cruel and Unusual Punishments Clause. First, the Cruel and Unusual Punishments Clause was copied from the English Bill of Rights in 1689, generating a third, additional time period relevant to its historical understanding. Second, the more textualist framework of the Cruel and Unusual Punishments Clause allows for more relatively bounded language and interpretation, which could remain unchanged through each time period. And if the Eighth Amendment’s textual principles could remain intact, even while its expected applications changed over time, each incorporation would represent a shift in construction rather than in a shift in interpretation. As such, the Cruel and Unusual Punishments Clause maintains its longstanding function of prohibiting punishments that are unjustifiably more severe (cruel) and contrary to the ordinary standards of law (unusual) despite changing expected applications against extralegal courts, federal overreach, and discrimination.


Roger Parloff on Justice Scalia on "Officers of the United States" (with a Blackman/Tillman Response)
Michael Ramsey

At Lawfare, Roger Parloff: What Justice Scalia Thought About Whether Presidents Are “Officers of the United States”.  From the introduction:

If the Supreme Court wants to definitively lift the shadow of Section 3 not just from the 2024 presidential race but also from the Jan. 6, 2025, counting and certification of Electoral College votes, the likely simplest and most definitive way to do so is to adopt the argument that the president is not an “officer of the United States.”

But one relevant fact about that argument has received surprisingly little attention. Justice Antonin Scalia, according to a 2014 concurrence he authored and a short private letter he wrote explaining it, believed that the president was, indeed, an “officer of the United States” for constitutional purposes. In addition, a strong case can also be made that Founding Father Alexander Hamilton likewise believed that the president was “an officer of the United States.”

A fun story follows.

Josh Blackman and Seth Barrett Tillman respond at Volokh Conspiracy.  From the beginning: 

The Ineligibility or Sinecure Clause (Article I, Section 6, Clause 2) states:

No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been increased during such time . . . . (emphasis added).

Here and elsewhere, the Constitution of 1788 distinguishes "appoint" from "elect." Whether or not contemporaneous popular usage did that too is an entirely different question—just as legal usage sometimes differs from popular usage.

For a different point of view, see Roger Parloff, 'What Justice Scalia Thought About Whether Presidents Are "Officers of the United States",' Lawfare (Jan. 24, 2024, 9:01 AM), <https://lawfaremedia.org/article/what-justice-scalia-thought-about-whether-presidents-are-officers-of-the-united-states>.  If Parloff and others are correct, if appoint and elect are basically synonyms across constitutional provisions, then a strategic Congress could raise the President's (or Vice President's) salary, and if Congress did so, then a Senator with 2 or 4 years remaining on his/her term would be barred from being elected/appointed to the presidency and vice presidency. In other words, an incumbent President seeking re-election, working in tandem with a cooperative Congress, could bar all senators (with 2 or 4 years remaining on their term) from the minority party, by raising the President's salary $1! And they say the Blackman/Tillman position has odd, unexpected, undesirable consequences?


David Kinnaird: Habeas Corpus and Void Judgments
Michael Ramsey

David Kinnaird (Virginia J.D. '23; Sidley Austin LLP) has posted Habeas Corpus and Void Judgments (73 pages) on SSRN.  Here is the abstract:

In a string of recent opinions, Justice Gorsuch and Justice Thomas have posited that post-conviction relief upon a writ of habeas corpus was historically unavailable except where the judgment of conviction was issued by a court lacking jurisdiction. In light of this history, Gorsuch and Thomas have argued for a reconsideration of the modern scope of the writ, which generally allows for re-litigation of alleged constitutional error in the course of criminal trial.

This article argues that Gorsuch and Thomas have the history half-right. They are correct to assert that a valid judgment of conviction was a sufficient answer to the habeas inquiry. They are mistaken, however, on three fronts.

First, a want of jurisdiction was not the lone circumstance where a judgment of conviction was insufficient cause for confinement. Rather, a petitioner was entitled to relief whenever the custodian could not provide the court with “due process of law” justifying detention—“due process” not in the modern sense of the phrase, but as in lawful writs and precepts duly issued forth from a court of law. The jurisdiction of a convicting court was relevant because a judgment issued in excess of jurisdiction was void. Where a prisoner was held under a void judgment, it was as if they were held under no judgment at all. In this way, such petitioners stood in the same position as one subject to arbitrary detention by an executive officer.

Second, insofar as Gorsuch and Thomas are using “jurisdiction” in its modern sense, their assertion that post-conviction habeas relief was unavailable except for a want of jurisdiction is anachronistic. Eighteenth- and nineteenth-century jurists spoke of “jurisdiction” in a broader sense, as in “the power of a sovereign to affect the rights of persons,” a notion not limited to exercise of the judicial power. Jurisdiction could be analyzed through a variety of different, non-exclusive vectors. One vector particularly relevant to the habeas inquiry was “jurisdiction over the process”—power to issue particular writs and precepts, a power which could have various subject-matter, territorial, and personal limitations, many of which were constitutionally prescribed. This concept has been almost completely overlooked in the habeas literature.

Third, a want of jurisdiction was not the only condition that would render a judgment void ab initio. To give judgment is a volitional act. Thus, the traditional vices of the will—fraud and duress—could also render a judgment void. But when such cases finally came before the Supreme Court, consistent with the realist jurisprudence of the early-twentieth-century, the Justices described such circumstances as “denials of due process” rather than questions of the general law of judgments. This conceptual error, while harmless at first, eventually led to the total erosion of traditional habeas doctrine.

In light of this history, this article concludes that the problem with modern habeas practice is not so much the breadth of inquiry, but the manner in which it proceeds. A habeas court has no power of vacatur over a final judgment of conviction, as it would were the judgment brought before it on a writ of error or an appeal. Much like judicial review of statutes, a habeas court’s only power is to recognize what has already been done by operation of law.


Samuel Bray on "Officer of the United States" [Updated]
Michael Ramsey

At Volokh Conspiracy, Samuel Bray: "Officer of the United States" in Context.  From the introduction: 

[I]t is surprising to me that the former President of the United States seems to be putting most of his legal eggs in one basket—the argument that the President is not an "officer of the United States." This is the lead argument in the brief available here. And for reasons I cannot understand—as a matter of legal principle—this argument is now being advanced by various conservative legal luminaries.

Three observations:

1.  The textual arguments advanced in the brief are weak, but the fundamental problem is a lack of sophistication about the interplay between semantics and context. Here is an example from pages 23-24: "every time this phrase appears in the Appointments Clause, the Commissions Clause, and the Impeachment Clause it excludes the President and refers only to appointed and commissioned officers rather than elected officials."  But it is not "this phrase" that excludes. In the Appointments Clause and the Commissions Clause, it is the context that makes clear that the President is not in view, because the President is not appointing or commissioning himself. It is not the semantic content of "officer of the United States."

By analogy, if I were to host a dinner for all of my colleagues at Notre Dame Law School, and I said "all law faculty are welcome, but none are obligated to be there," would I be saying that I, as the host, was not obligated to be there? Of course I would be obligated. Would I therefore be saying that I was not "law faculty"? No. My usage would not be advancing a narrow view of the semantic domain of "law faculty"; I would instead be using the phrase in a context that indicated that I was obviously excluded. ...

RELATED: At New Reform Club, Seth Barrett Tillman answers a journalist's question.  Here is the question: 

"Another question comes to mind, and apologies if you’ve already answered it in writings I missed: If the president is not an officer under the U.S. for the purposes of the 14th amendment, wouldn’t that mean that he cannot be disqualified from future office even by impeachment and conviction? Article II refers to disqualification from ‘any office of honor, trust or profit under the United States.’ So a Supreme Court of the United States ruling that President is not an officer for 14th amendment purposes would also mean an impeached and convicted President cannot be disqualified from seeking another term?"

Answer at the link.

UPDATE:  Ned Foley (Ohio State) has this thoughtful post on the Trump brief at Election Law Blog.  (Vie How Appealing.)

FURTHER: At Balkinization, Mark Graber responds to an amicus brief that criticizes his view of the "officer" issue. 


John Duffy: Chevron, De Novo
Michael Ramsey

John F. Duffy (University of Virginia School of Law) has posted Chevron, De Novo: Delegation, Not Deference (17 pages) on SSRN.  Here is the abstract:

Chevron v. NRDC is frequently discussed in general terms for the deference doctrine originating in the opinion but far less frequently analyzed in terms of the specifics of the case, with attention to the relevant statutes, the regulations being reviewed, the arguments that the parties presented, and the arguments they failed to present. As the Supreme Court now considers whether to “overrule” the case, it is highly important to consider how the case should properly be analyzed if the parties had presented to the Court the complete set of statutes governing judicial review. Such a “de novo” look at Chevron would produce the same outcome (a sustaining of the legality of the agency’s regulations) but with radically different reasoning, beginning with a recognition that a reviewing court must “decide” all relevant questions of law, including statutory questions. Yet in deciding all relevant questions of law, reviewing courts must frequently confront, as in Chevron itself, the crucial question of how much delegated power the agency possesses. Reviewing courts should focus attention on that statutory issue—the extent of delegation—and should eschew the pointless project of spinning ever more elaborate judicially-fabricated rules for granting and denying deference to agency legal interpretations. Much of that reorientation from deference to delegation was already accomplished in United States v. Mead. In the pending Loper Bright v. Raimondo and Relentless v. Department of Commerce cases, the Court should complete the reorientation, disavow the analysis in Chevron, read the relevant statutes de novo, and determine without deference to the agency the amount of power delegated to the agency. That approach has many benefits, including that it would (i) provide an appropriate, rigorous, and broadly applicable approach for addressing the varied agency delegations authorized by Congress; (ii) respect the Administrative Procedure Act’s comprehensive framework governing judicial review; and (iii) help to decide the Loper Bright and Relentless cases by forcing courts to focus on the unusual and narrow delegation of power in the relevant statute.

Sounds right to me.

(Via Larry Solum at Legal Theory Blog, who says "Highly recommended.")