Law & Liberty Symposium on Jack Balkin's "Memory and Authority"
Michael Ramsey

At Law & Liberty, three perspectives on Jack Balkin's recent book Memory and Authority: The Uses of History in Constitutional Interpretation (Yale University Press 2024).  From the editors:

The Supreme Court’s recent turn to history and tradition as guides for understanding the public meaning of text has reignited longstanding debates about the uses of history in law. In Memory and Authority, the longtime advocate of “living originalism,” Jack Balkin, argues that the Court’s use of history is self-serving, and amounts to the “mirror image” of living constitutionalism. Three Law & Liberty contributors—law professor Mark Movsesian, political theorist David Schaefer, and historian Aaron N. Coleman—assess the book, as well as the promise and limitations of “law-office history” from different disciplinary backgrounds.

Aaron N. Coleman, “Judicial Supremacy Through Thick and Thin

Mark L. Movsesian, ” Traditionalizing Everything

David Lewis Schaefer, “The Rule of Historicist Judges?


Robert Leider on Presidential Immunity
Michael Ramsey

At Volokh Conspiracy, Robert Leider, guest blogging: Sources of Presidential Immunity.  From the introduction:

On Thursday, the Supreme Court heard arguments in Trump v. United States, which concerned whether presidents have criminal "immunity" for their official acts while in office.  Some arguments seemed perplexing.  Trump's counsel, for example, argued that a prosecutor could charge private acts, but not official acts.  So if a president accepted a bribe to appoint an ambassador, prosecutors could charge the bribe (which he declared a private act) but not the appointment, which he classified as an official act.  Official acts, in his view, could only be the subject of criminal charges if there was first an impeachment and conviction, followed by a prosecution under a criminal statute that explicitly mentions the president.

The Court struggled with these arguments, and many others.  In large part, I think these struggles occurred because "immunity" is not a good way to describe when a president may not be prosecuted.  In this post, I want to lay out what I believe to be the exceptions to when a president may be prosecuted in the same manner as a private citizen.  This post comes with the caveat that this is not my usual academic area, and I do not have a high degree of confidence that what I framed here is complete and correct.  But at the very least, I think it is a better starting place than the all-encompassing term "immunity."

Agreed.  Immunity is the wrong way to think about the issue because the Constitution doesn't provide for immunity.  That doesn't necessarily mean the President loses.

Also, I'm not sure if I've expressed strongly enough my disagreement with Trump's counsel's argument that (as Professor Leiden puts it above) "Official acts ... could only be the subject of criminal charges if there was first an impeachment and conviction..."  So I'll do it here.  This argument is entirely unpersuasive, first because that's not what the Constitution says.  Article I, Section 3 (the only arguably relevant provision) says that "Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification" from office, but then adds: "but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law" (emphasis added).  This provision is saying that, even after a conviction and punishment by the Senate, an impeached party can still be prosecuted separately under criminal law.  That is, the impeachment conviction and punishment  is not a double jeopardy bar to the subsequent prosecution (hence the "nevertheless").  To get where Trump's counsel wants to go, the paragraph would need to say "and [not but] the Party convicted shall thereafter be liable..."  The "but ... nevertheless" completely destroys his argument.

And second, as I (and also Trump) argued at the time of Trump's second impeachment, a former President cannot be impeached and convicted.  The Constitution, Article II Section 4, says "The President ... shall be removed from office on Impeachment for, and Conviction of" the listed acts.  Thus impeachment applies only to current Presidents, not former Presidents (who are not "The President").  Article I, Section 3 (quoted above) backs this up by saying that punishment on conviction after impeachment "shall not extend further than to removal from Office, and [not "or"] disqualification."  If that's right, though, Trump's argument in the present case makes no sense, because it would shield a former President from prosecution for wrongdoing discovered after the President left office.


Further Thoughts on Presidential Immunity and Structural Reasoning
Michael Ramsey

I entirely agree with Mike Rappaport's assessment of presidential immunity, especially with his skepticism about immunity arguments that rest on claims about constitutional structure.  Here's what I wrote about structural reasoning in foreign affairs law (quite a while ago) (footnotes omitted):

[H]istorical textualism is “clause-bound” in that it embodies a search for the specific meaning of particular clauses. The document is made up of clauses (or phrases, or however one wishes to put it), and the question of the document's historical meaning is a question of its component clauses' historical meaning. The historical meaning of the whole is not more than the historical meaning of the sum of its clauses. In that sense, historical textualism should regard the phrase “clause-bound” as no pejorative. Binding oneself to the historical meaning of the document's words and phrases is precisely what anchors the inquiry, making it an investigation of what was actually written as opposed to speculation about what should have been written.

Being “clause-bound” thus does not mean eschewing “structural” arguments,15 but it does mean treating them carefully. It is one thing to use what Professor Charles Black‟s foundational work called “the constitution in all its parts” to illuminate the meaning of a particular part. It is quite another to find meaning in “the general themes of the entire constitutional document” (as John Ely put it) without relating them back to particular words and phrases. Both approaches may be called “structural”, but for a textualist there should be a manifest distinction. “General themes” not reflected in actual text are difficult to objectively identify and apply to particular disputes; one may be skeptical (at least without powerful and specific supporting evidence) that arguments based upon them reflect what the Constitution actually meant, as opposed to what one thinks it ought to have said. 

(Missouri v. Holland and Historical Textualism, 73 Missouri L. Rev. 969, 972-74 (2008))

The arguments for presidential immunity seem to me to rest mainly on this unsound version of structural reasoning -- that the structure of the office of the President implies immunity for official acts taken by the holder of that office.

Thus I tend to think that the Court, before reaching the immunity question, might look at the logically prior question of whether the relevant statutes apply to the President (see Jack Goldsmith's post here), including perhaps through application of the presidential avoidance canon, if there is one.  I'm not sure if there's a way for the Court to get there in the Trump case, however.


Michael Velchik: The Presidential Avoidance Canon
Michael Ramsey

Michael Velchik (Legislative Director & Senior Counsel, U.S. Senate; formerly White House Counsel’s Office, 2019 to 2021) has posted The Presidential Avoidance Canon (Nebraska Law Review, Vol. 102, No. 1, 2023) (66 pages) on SSRN.  Here is the abstract:

This Article identifies an overlooked yet potent canon of statutory construction: the presidential avoidance canon. Under this rule, courts will not interpret a generally applicable statute to apply to the President, his close advisers, or the Executive Office of the President (EOP), absent a clear statement. Even where a statute explicitly applies to the EOP, courts may narrowly construe the law to exempt those EOP components whose sole function is to advise and assist the President.

Applying this rule, courts have narrowly construed the Administrative Procedure Act, the Freedom of Information Act, the Privacy Act, the Federal Records Act, the Presidential Records Act, the Civil Rights Act of 1964, anti-nepotism laws, and inspector general reporting requirements. Unlike other canons of construction, which subtly influence interpretation, this canon has driven courts to conclusions starkly at odds with the plain texts of these statutes.

Despite its significant impact, the presidential avoidance canon has received little scholarly attention. This Article fills the gap in the literature by tracing the history, logic, and potential applications of this canon of construction. It identifies the development of this canon in Supreme Court precedents from the Jefferson, Johnson, and Nixon administrations. It documents how courts and the Department of Justice have applied the doctrine to landmark legislation. It then extrapolates the logic of this canon to new contexts, including the Federal Tort Claims Act, the Whistleblower Protection Act, the Inspector General Act, the Computer Fraud and Abuse Act, and the Hatch Act. It concludes by discussing the canon’s scope, justification, and utility.

Timely!  See my discussion with Josh Blackman here and here.

As to the Trump prosecution, I would think that the statutory question of whether the relevant laws apply to the President might be appropriately decided before the constitutional question of whether the President has immunity.


The Original Meaning Regarding Presidential Immunity: A Preliminary View
Mike Rappaport

            I have not really studied this issue in depth – and so my view should be understood as tentative and preliminary – but here goes.

            My bottom line is some form of constitutional presidential immunity is certainly a plausible view as a matter of precedent.  How could it not be given the (unenumerated) presidential immunities that the Supreme Court has recognized?  But as a matter of the original meaning, I do not think there is such an immunity. 

            The Constitution enumerates certain immunities, such as the speech and debate immunity.  This cuts strongly against unenumerated presidential immunities.  Presidential immunities could theoretically be found under the Vesting Clause but monarchial immunities were pretty clearly rejected by the constitutional enactors.  If governors at the time of the Constitution generally enjoyed immunity, that would be evidence for the immunity but no one has pointed to such immunity.  And of course the Impeachment Punishment Clause provides:

Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

This does not say that one is subject to criminal punishment only if one has been impeached and convicted. 

            It is conceivable – although certainly not inevitable – that Congress does not have authority to pass laws regulating certain core presidential powers such as the veto power, the pardon power, and the recommendation power.  But even if true, that would not provide a general presidential immunity for official acts.

            A separate question is whether the criminal statutes Congress has enacted apply to the President.  Under existing precedents regarding statutory interpretation, there is certainly a plausible case that these statutes do not apply absent a clear statement, even though those statutory interpretation precedents seem problematic from an originalist perspective because they involve substantive canons.  Even from a more originalist interpretive approach, there are serious questions whether many criminal statutes apply to presidents, given how rarely they were applied to presidents in the past.  But statutory interpretation is a separate question from constitutional immunity.

            Some people would defend presidential immunities on “structural grounds.”  The argument is that the overall structure or system of the Constitution requires that the President be protected from prosecutions for official acts he committed when President.  But such naked structural arguments – divorced from any constitutional text – are extremely problematic.  They are too easy to make up.  Does it seem like a good idea to the justices?  If so, the structure must require it.  That is not the way to determine what the Framers enacted. 

            Structure does have a place in originalist constitutional interpretation.  When the text is ambiguous or otherwise unclear, structure is a permissible way to resolve that ambiguity.  But it is entirely different to use naked structural arguments that are divorced from the text.  In the former case, we are determining what the text written by the Framers meant.  In the latter case, we do not have any good reason to believe that the Framers enacted this requirement.

            Some might argue that if a power cannot be exercised without an accompanying immunity, then that immunity is fairly inferred.  But even if one accepts that argument, presidential power can be exercised without this immunity.  It simply means that the power can be exercised less effectively. 

            But even if one is troubled by the structural argument, the argument against constitutional presidential immunity does have a structural response.  While the Constitution does not provide an immunity, it allows the Congress to enact a law under its Necessary and Proper authority to provide limited or full protection to former Presidents from prosecutions.  Thus, Congress can address this structural issue.

            Of course, it seems unlikely that the existing Congress will pass such a law.  But if such prosecutions become more frequent, Congress might pass a law in the future protecting former Presidents.  The law could be written to apply in the future – say six years from its enactment – so that no one can predict the political party of the President the law will protect.  While this might still seem unrealistic, similar political changes have happened in the past.  Most Democrats (and some Republicans) used to believe the Independent Counsel was great when it was applied to Republican Presidents.  When it came to be applied to a Democratic President, Democrats suddenly came to understand why it was problematic.  Only then was the Independent Counsel statute allowed to die, something that would have been unthinkable a decade earlier.

            It is important to be clear about why we might need a statute protecting Presidents now when that has never been required in the past.  There has always been an important constitutional norm that prohibited the existing President from prosecuting former Presidents and persons running against him.  That norm operated to make a statute protecting former Presidents unnecessary.  But now one political party at both the state and federal level has chosen to ignore and destroy that norm in not one, not two, but a series of prosecutions, most of which are extremely weak.*  Even if one of the prosecutions is not weak, it would not have been brought in the past.

            It is important to say this because we are witnessing very little criticism for the destruction of an essential norm.  Many people are reluctant to criticize these prosecutions because they fear being accused of supporting Trump or because they strongly dislike Trump.  But Trump’s actions are not the main issue.  Yes, Trump has done some bad things and has seriously violated norms.  But these prosecutions would not have been brought under the old norm.  These prosecutions will lead to retaliatory prosecutions by the Republicans in the future, and then we will be off to the races.  With the evisceration of the norm, bad consequences will inevitably result, consequences that we associate not with one of the world’s oldest democracies but with banana republics.


* This might seem like a politically partisan point but it is not made in a spirit of partisanship.  Both political parties have made many mistakes.   But the mistake that the Democrats are making has far more serious long term consequences than other mistakes made by both Republicans and Democrats.    

Adam White on Life after Chevron
Michael Ramsey

At Law & Liberty, Adam White: Constitutional Government After Chevron?  From the introduction:

By mid-summer, Chevron deference as we know it may be history. The Supreme Court could reform or even eliminate its forty-year-old doctrine that federal courts should generally defer to an agency’s reasonable interpretation of an ambiguous statute.

How would the end of Chevron deference affect our constitutional institutions? It’s far too soon to know—and not just because the Supreme Court has yet to decide Relentless, Inc. v. Department of Commerce and Loper Bright Enterprises v. Raimondo. Even if the Court eventually reforms the Chevron framework or erases it outright, the decision’s full impact will not be seen clearly for months or years. Such was the case with Chevron itself: the Court’s decision was debated endlessly from the start, but its full effects would not be fully understood until decades later.

Still, it is not too soon to start thinking. Reforming Chevron along the lines suggested by some of the justices’ questions at oral argument would change the work of the courts. First, and most obviously, judges will need to work harder to interpret statutory text. This harder interpretive work, in turn, will place still greater weight on textualism itself—and on Congress’s own responsibility for crafting the texts in the first place. The post-Chevron era may also cause judges to think differently about the character of the administration. And if so, then the executive and legislative branches will have new reasons to change their own work, too.

This essay attempts to think through some possible second- and third-order effects of one of the most long-awaited decisions in modern administrative law. And even if these specific speculations are rendered moot by the Court’s eventual decision in Loper Bright  and Relentless, the exercise can still help us think through the months and years ahead.


Reva Siegel: 'History and Tradition' as the Right’s Living Constitution
Michael Ramsey

Reva Siegel (Yale Law School) has posted The 'Levels of Generality' Game, or 'History and Tradition' as the Right’s Living Constitution (Harvard Journal of Law and Public Policy, Vol. 47, 2024) (26 pages) on SSRN.  Here is the abstract:

Why does the Roberts Court appeal to history and tradition as reason to change the law? We see this logic in Dobbs v. Jackson Women’s Health Organization (reversing the abortion right) and in New York State Rifle & Pistol Ass’n v. Bruen (striking down gun-licensing restrictions under the Second Amendment). This Essay shows that what explains the turn to history in these cases is not an identifiable method that directs interpreters how to decide contested constitutional questions but instead a mode of justification. Both Dobbs and Bruen claim that fidelity to the nation’s history and tradition in interpreting the Constitution will constrain judicial discretion as traditional forms of doctrine or openly value-based judgment cannot.

For some years now, I have analyzed the value-laden claims on the past that Americans make as they are arguing about the Constitution as “constitutional memory” claims. As this Essay demonstrates, my account of constitutional memory poses a direct challenge to originalism’s judicial-constraint thesis. What appear to be positive, descriptive claims about the past in constitutional argument are often normative claims about the Constitution’s meaning. I analyze this dynamic in the Justices’ decades-long debate over levels of generality: a judge who employs the most specific level of generality in describing past practice can conceal rather than constrain value-based judgment. And I illustrate this logic at work in United States v. Rahimi, a Second Amendment case before the Supreme Court this Term, in which the Fifth Circuit applied Bruen’s history and tradition analysis to hold that 18 U.S.C. § 922(g)(8), a federal law that disarms persons subject to domestic-violence restraining orders, is unconstitutional under the Second Amendment.

The Essay argues that we are all living constitutionalists now—but, crucially, not all living constitutionalism is the same. A conclusion identifies reasons why the Justices who present appeal to the past as claims of judicial constraint may engage in anti-democratic forms of living constitutionalism.


More from Josh Blackman on the Presidential Avoidance Canon
Michael Ramsey

At Volokh Conspriacy, Josh Blackman: The Clear Statement Rule and the Major Question Doctrine As Substantive Separation of Powers Canons (expanding on his initial post here and my comment here).  From the introduction:

Both the clear statement rule, and the major question doctrine, are substantive canons to avoid potential violations of the separation of powers. Justice Gorsuch explained in West Virginia v. EPA that the major question doctrine is best viewed as an avoidance canon in service of the non-delegation doctrine. That is, the Court will require a clear statement that Congress intended to empower an agency to resolve a "major question" in order to avoid deciding if such a broad delegation would even be constitutional. Likewise, with the Presidential Avoidance Canon, as I described it during the Trump years, the Court will require a clear statement that Congress intended to limit the President's power in order to avoid deciding if such a limitation on the President's power would violate Article II.

The clear statement rule and the major question doctrine both function as substantive separation of powers canons in order to avoid deciding if federal actions are unconstitutional.

I think this is probably correct as an assessment of how Justice Gorsuch, and perhaps other members of the Court, see the matter.  But it still leaves the question of whether the constitutional avoidance canon is consistent with originalism (about which I have some doubt).  Scalia & Garner endorse what they call the "constitutional doubt canon" (pp. 247-255 of Reading Law) but do not offer much of an originalist defense.


Jud Campbell: Four Views of the Nature of the Union
Michael Ramsey

Jud Campbell (Stanford Law School) has posted Four Views of the Nature of the Union (47 Harvard Journal of Law and Public Policy 13 (2024)) (25 pages) on SSRN.  Here is the abstract:

This Essay summarizes four Founding-Era views about the nature of the Union and the key interpretive implications that followed from those views. In doing so, it emphasizes the importance of social-contract theory and engages a recent scholarly debate over the influence of the law of nations on Founding-Era constitutional interpretation. Without taking a position about which view of the Union was correct, the Essay aims to illuminate the range of interpretive possibilities, including ones informed more by social-contractarian premises than by the law of nations.

And from the introduction (footnotes omitted):

One of the most enjoyable yet challenging aspects of studying American constitutional history is that the earlier generations often did not share our vision of constitutional law. For us, the written Constitution grounds constitutional argument. We treat the text as the source of our fundamental law, and then as Justice Scalia would say, the rest is “a matter of interpretation.”

In taking this approach, we have mostly rejected other ways of grounding constitutional law—including through invocations of social-contract theory, natural rights, and natural law. These are things that might come up in a philosophy class, but they have little relevance to legal doctrine. Not coincidentally, we also have mostly moved beyond the fights over sovereignty and the “nature of the Union” that dominated the first century of American constitutional debate.

But Americans from the Founding through Reconstruction did not share this perspective. For them, the text mattered a great deal. But there were deeper foundations—and more fundamental sources of authority—than the written document. Americans thus often debated how the text of the Constitution fit within a broader matrix of fundamental law. This was especially true of federalism disputes, which frequently turned on social-contractarian assumptions about the locus of sovereignty within the federal system. So in order to think historically, we need to imagine the nature of constitutional law—and the grounding of constitutional law—in these older ways.


The First Criminal Trial of an ex-POTUS
Andrew Hyman

The first criminal trial of an ex-President is ongoing in Manhattan.  When the district attorney for Manhattan issued the indictment in April of 2023, he explained that Trump was being indicted “for falsifying New York business records in order to conceal damaging information and unlawful activity from American voters before and after the 2016 election.”  Yet all of the 34 counts explicitly rely upon action Trump allegedly took after the election, at which time American voters could not have been influenced much by the allegedly incorrect business records, and Trump had less motive to influence voters.

The Constitution explicitly gives state legislatures some power to regulate presidential elections: “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors….”  But that power wanes after the electors are chosen, and is therefore subject to greater preemption by federal statutes, as well as by federal interpretations of those statutes.

All of the 34 counts rely upon a New York statute (“175.10”) which says this:

A person is guilty of falsifying business records in the first degree when he commits the crime of falsifying business records in the second degree, and when his intent to defraud includes an intent to commit another crime or to aid or conceal the commission thereof.  Falsifying business records in the first degree is a class E felony.

Without a conviction on first degree falsification, the statute on second degree falsification would only have been a misdemeanor, and also would have been barred under a statute of limitations.

The indictment did not explicitly say what the “another crime” was, even though intent to violate “another crime” is a key element in every one of the 34 counts.  Each of the 34 counts does allege “intent to defraud” but it doesn’t seem like there was much of a motive given that, by 2017, the election had already happened.  In any event, the indictment left the “another crime” unspecified.

As you might expect, Trump filed a motion to dismiss the indictment, in September of 2023.  After briefing by both parties, the judge in the case declined to dismiss, in a 30-page decision and order dated February 15, 2024.  This decision said (at p. 11) the state had offered “four theories” about what the words “another crime” meant in the indictment, and the judge deemed the first three of those theories to be valid even though the indictment did not specify any of them: (1) intent to violate federal election law; (2) intent to violate state election law; and/or (3) intent to violate state tax law. 

The judge emphasized that the state statute quoted above only requires “intent” regardless of whether the “another crime” is actually carried out.  On the other hand, the judge did not address the difference between knowledge and intent (“knowingly” versus “intentionally”), and the state legislature very likely did not intend to put anyone in jail for decades who merely knew about commission of a crime without intending it.  For example, if a tax law was technically violated without costing the state any money, a defendant may well have known about the violation without intending it.  Likewise, the judge did not address whether the absence of commission of a crime can be evidence of whether the crime was intended; it surely can, if it’s a tax law, an election law, or any other law.

As to election law, it’s unlikely Trump violated it by paying hush money.  Former vice-presidential candidate John Edwards paid hush money, but a federal court said it was legal.  One might ponder whether the motive for the hush money was to protect Trump’s family or instead to win the election, but Trump would have faced immense negative legal consequences if he had paid the hush money using campaign funds.  The money that Trump allegedly misreported or misclassified in 2017 was money paid by him, for which he was indicted, but candidates are not limited in the amounts they can spend on their own campaigns (or on their own personal expenses).

I’m not a New York lawyer, but it looks to me like a weak indictment that probably should have been dismissed, and that will probably strengthen  Trump’s related case for presidential immunity. Incidentally, the right to a grand jury is one of the few provisions in the Bill of Rights that has not yet been applied against the states; as I wrote on this blog in 2018, it very likely should be.

A few years ago, in 2017, Yale Law Professor Stephen L. Carter wrote the following:

One might argue, plausibly, that political candidates are entitled to a stronger presumption of innocence because they are more likely than the rest of us to be the target of spurious charges. Fair enough.
Earlier this month, on April 25, the U.S. House Judiciary Committee issued an interim report asserting that the current charges against Trump in Manhattan are spurious.  They do seem weak.