Habeas Corpus Originalism in DHS v. Thuraissigiam
Michael Ramsey

In Department of Homeland Security v. Thuraissigiam, decided Thursday, the Supreme Court (Per Justice Alito, writing for himself, Roberts, Thomas, Gorsuch and Kavanaugh) held that the writ of habeas corpus didn't protect Mr. Thuraissigiam, who sought to challenge DHS's rejection of his asylum claim.  Josh Blackman comments here

The majority required the Thuraissigiam to identify a specific case that supports his claim for relief. A close analogy is not enough.

Despite pages of rhetoric, the dissent is unable to cite a single pre-1789 habeas case in which a court ordered relief that was anything like what respondent seeks here. The dissent instead contends that "the Suspension Clause inquiry does not require a close (much less precise) factual match with historical habeas precedent," and then discusses cases that are not even close to this one.

In dissent, Justice Sotomayor writes that Boumediene does not require such a close historical fit:

But as the Court implicitly acknowledges, its inquiry is impossible. The inquiry also runs headlong into precedent, which has never demanded the kind of precise factual match with pre-1789 case law that today's Court demands.

At Dorf on Law, Michael Dorf is critical of Justice Alito's originalism: Justice Alito's Opinion in Dep't of Homeland Security v. Thuraissigiam Reveals Why "Custody" in the Narrow Sense Should Not Be a Requirement for Habeas.  From the core of the argument:

Much of the disagreement between Justices Alito and Sotomayor looks like a debate over "clearly established law" for purposes of overcoming qualified immunity or the characterization of a "new rule" for purposes of unavailability in the context of habeas as a collateral remedy for state prisoners. Justice Alito says that Thuraissigiam's lawyers failed to produce any cases from the relevant period that are sufficiently like his to serve as precedent; Justice Sotomayor responds that an exactly analogous case is unnecessary. I agree with Justice Sotomayor on this point, but that's not just because I take a broader view of precedent than the Court does in those other contexts too. It's also because Justice Alito's argument should fail on its own premises. Originalism--its champions have been telling us for a quarter century or more now--seeks the original public meaning of the constitutional text. The absence of an exactly analogous or even somewhat analogous case might have some bearing on the expectations or intentions of the framing generation, although then again it might not, but it certainly would not limit the application of the constitutional text to new or even unanticipated circumstances. Here as in many other contexts, originalists talk the original-public-meaning talk when defending originalism against theoretical critique but walk the concrete-intentions-and-expectations walk when it comes time to decide cases.
I agree that there shouldn't be a requirement of an exactly analogous case, for the reasons Professor Dorf says.  But Professor Dorf (per the title of his post) wants to say that "'Custody' in the Narrow Sense Should Not Be a Requirement for Habeas." So it seems to me that the burden is on him (and thus the claimant) to show that there is some historical foundation for the habeas writ applying beyond "custody in the narrow sense."  And I think Justice Alito's claim is that there is no pre-1789 evidence of habeas applying beyond "custody n the narrow sense."  Assuming Justice Alito is right on this point (and Professor Dorf provides no reason to think otherwise), then Justice Alito's originalism seems methodologically right to me.  It's correct that "[o]riginalism ... seeks the original public meaning of the constitutional text." But the constitutional text here is "the writ of habeas corpus." And if the "writ of habeas corpus" was never applied except to challenge wrongful custody, that seems pretty decisive to me that  "the original meaning of the constitutional test" is that "the writ of habeas corpus" is a procedure to challenge wrongful custody and nothing else (as Justice Alito says).  I see no originalist methodology problem here.


Jack Balkin: The Great Debate in the Conservative Legal Movement
Michael Ramsey

At Balkinization, Jack Balkin: The Great Debate in the Conservative Legal Movement.  From the introduction:

There is a great ferment among conservative legal intellectuals these days. This post is summary of what I think is happening, written from the perspective of an outsider. Although I am an originalist, I am also a political liberal. But I have many friends in the conservative legal movement and because of my scholarly agenda, I watch developments in the movement with great interest.

Since the second half of the 20th century, American conservatism has been a fusion of different approaches, including libertarians, small government conservatives, business interests, national security hawks, social conservatives, religious conservatives and paleo-conservative or "Old Right" nationalists who tended to be anti-immigration and isolationist. People often fell into multiple camps, and their ideas sometimes shifted over time.

The conservative legal movement arose of of this fusion. Together and separately, these various groups in the conservative constellation sought and pushed for a jurisprudence that would promote their values and show why their political opponents' legal views were incorrect. This is hardly surprising. Every jurisprudential movement that I can think of has been associated with a politics. And the very idea of a conservative legal movement should be a tip-off that the goal of the movement was to promote... well, conservatism.

By the 1980s or so, originalism had become the lingua franca of the conservative legal movement, with textualism (especially in statutory construction) following shortly thereafter. One didn't have to be either an originalist or a textualist to be a conservative legal intellectual, but the language of originalism and textualism was a convenient shorthand to describe what conservatives were for (and, equally important, what they opposed). Over the years, conservative judges and legal intellectuals developed jurisprudential theories designed to promote and apply both originalism and textualism.


Each part of the conservative movement, in other words, saw something to gain from originalism and textualism. The logic of originalism and the logic of the different forms of conservatism (more or less) converged.

Several things happened in the past twenty years that have upset those assumptions and created tensions within the conservative legal movement. Today's intellectual ferment is the result of those changes. ...


Jennifer Mascott: Early Customs Laws and Delegation
Michael Ramsey

Jennifer Mascott (George Mason University - Antonin Scalia Law School, Faculty) has posted Early Customs Laws and Delegation (George Washington Law Review, Vol. 87, No. 6, 2020) (64 pages) on SSRN. Here is the abstract:

This past Term the Supreme Court reexamined the nondelegation doctrine, with several justices concluding that in the proper case, the Court should consider significantly strengthening the doctrine in its contemporary form. Adherents to the doctrine question whether Congress has developed a practice of improperly delegating to administrative agencies the legislative power that Congress alone must exercise under the Vesting Clause of Article I of the Constitution. Many scholars have debated the extent of the historical or textual basis for the doctrine. Instead, this Article examines interactions between executive and legislative actors during the first congressional debates on the Impost, Tonnage, Registration, and Collection of Duties Acts. In addition to revealing Congress’s central role early on, this story shows the relevance of state and congressional district interests to the legislative agreements concerning customs laws. The rich depth of these varied interests suggests that nondelegation limitations might not be inherent in the Vesting Clause alone, but may be innate to the federal government’s tripartite and federalist structural design itself.

The Constitution carefully provided significant protection for state interests through diverse representation schemes in the House and the Senate. Beyond the textual limitation of exclusive vesting of the legislative power in Congress, separation of powers principles help ensure all people’s interests are represented in a way that would not be possible via a singular, centralized administrative entity. The acts of such administrative entities are accountable, if at all, to just one centralized elected official, not to multiple elected decisionmakers representing states and regional interests. Consequently, enforcement of relatively strict nondelegation principles may be critical to preserving the structural constitutional principle that the federal government must reflect the interests of both individual members of the electorate as well as the states and regional electoral districts.


Zachary Price: Congressional Authority Over Military Offices
Michael Ramsey

Zachary Price (University of California Hastings College of the Law) has posted Congressional Authority Over Military Offices (Texas Law Review, forthcoming) (71 pages) on SSRN.  Here is the abstract:

While scholars have explored at length the constitutional law of office-holding with respect to civil and administrative offices, recent scholarship has largely neglected parallel questions regarding military office-holding. Even scholars who defend broad congressional authority to structure civil administration typically presume that the President as Commander in Chief holds greater authority over the military. For its part, the executive branch has claimed plenary authority over assignment of military duties and control of military officers.

This pro-presidential consensus is mistaken. Although the President, as Commander in Chief, must have some form of directive authority over U.S. military forces in the field, the constitutional text and structure, read in light of longstanding historical practice, give Congress extensive power to structure offices, chains of command, and disciplinary mechanisms through which the President’s authority is exercised. In particular, just as in the administrative context, Congress may vest particular authorities—authority to launch nuclear weapons or a cyber operation, for example, or command over particular units—in particular statutorily created offices. In addition, although the Constitution affords Presidents removal authority as a default disciplinary mechanism, Congress may supplant and limit this authority by replacing it with alternative disciplinary mechanisms, such as criminal penalties for disobeying lawful orders.

By defining duties, command relationships, and disciplinary mechanisms in this way, Congress may establish structures of executive branch accountability that promote key values, protect military professionalism, and even encourage or discourage particular results, all without infringing upon the President’s ultimate authority to direct the nation’s armed forces. These conclusions are relevant pending Supreme Court cases regarding military discipline and presidential removal authority. They also bear directly on pending legislative proposals to vest authority over cyber weapons, force withdrawals, or nuclear weapons in officers other than the President. From a broader perspective, they shed new light on separation-of-powers debates over the “unitary” executive branch, conventions of governmental behavior, the civil service’s constitutionality, and Reconstruction’s historical importance.


Further Programming Note
Michael Ramsey

I'm back.  All's well.  I will resume posting tomorrow morning.


Programming Note
Michael Ramsey

I will be taking a brief hiatus from blogging for personal reasons starting tomorrow.  I hope to return shortly.

John Stinneford: Is Solitary Confinement a Punishment?
Michael Ramsey

John F. Stinneford (University of Florida Levin College of Law) has posted Is Solitary Confinement a Punishment? (Northwestern University Law Review, Vol. 115, 2020) (29 pages) on SSRN.  Here is abstract: 

Nulla poena sine lege — no punishment without law — is one of the oldest and most universally accepted principles of English and American law. Today, thousands of American prisoners are placed in long-term solitary confinement despite the fact that such placement is authorized neither by penal statute nor by judicial sentence. Is solitary confinement “punishment without law,” or is it a mere exercise of administrative discretion?

In 1890, in a case called In re Medley, the Supreme Court held that solitary confinement is a separate punishment subject to constitutional restraints, but it has ignored this holding in recent decades. Part I of the Essay that follows describes the Supreme Court’s existing case law governing prison officials’ discretion to impose harsher conditions on inmates. Part II analyzes English and American constitutional history relating to the need to limit discretion over punishment, the danger of executive discretion in the infliction of punishment, and the distillation of a standard relevant to determining whether a given government action is a punishment. Finally, Part III checks the accuracy of the Supreme Court’s conclusion in Medley that the harshness of solitary confinement makes it a new punishment by examining historical and modern empirical data relating to the effects of solitary confinement, and concludes that the Medley court was correct.

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


Textualism in the Bostock v. Clayton County Decision: Two Views
Michael Ramsey

At Volokh Conspiracy, Ilya Somin: Textualism and Purposivism in Today's Supreme Court Decision on Discrimination Against Gays, Lesbians, and Transsexuals.  From the introduction:

[The] Supreme Court decision holding that Title VII of the Civil Rights Act of 1964 forbids employment discrimination against gays, lesbians, and transsexuals is well-justified on the basis of textualism—a theory of legal interpretation usually associated with conservatives. By contrast, it is less clearly right from the standpoint of purposivism, more often associated with liberals, such as Supreme Court Justice Stephen Breyer. The Court's opinion in Bostock v. Clayton County was written by Justice Neil Gorsuch, a conservative known for his adherence to  textualism and joined by four liberal justices, as well as the conservative Chief Justice John Roberts. Three conservative justices dissented.

The relevant text of Title VII states that it is "unlawful . . . for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin."

Justice Gorsuch's majority opinion effectively explains why discrimination on the basis of sexual orientation qualifies as discrimination "because of…sex" under the plain text of the law:

From the ordinary public meaning of the statute's language at the time of the law's adoption, a straightforward rule emerges: An employer violates Title VII when it intentionally fires an individual employee based in part on sex. It doesn't matter if other factors besides the plaintiff 's sex contributed to the decision. And it doesn't matter if the employer treated women as a group the same when compared to men as a group. If the employer intentionally relies in part on an individual employee's sex when deciding to discharge the employee—put differently, if changing the employee's sex would have yielded a different choice by the employer—a statutory violation has occurred.

The statute's message for our cases is equally simple and momentous: An individual's homosexuality or transgender status is not relevant to employment decisions. That's because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex. Consider, for example, an employer with two employees, both of whom are attracted to men. The two individuals are, to the employer's mind, materially identical in all respects, except that one is a man and the other a woman. If the employer fires the male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague….

At NRO Bench Memos, Ed Whelan: A ‘Pirate Ship’ Sailing under a ‘Textualist Flag’.  From the introduction:

In his dissent [in Bostock], Alito memorably likens Gorsuch’s majority opinion to a “pirate ship”:

It sails under a textualist flag, but what it actually represents is a theory of statutory interpretation that Justice Scalia excoriated––the theory that courts should “update” old statutes so that they better reflect the current values of society.

As someone who had much higher expectations for Gorsuch (and for the Chief Justice), I’m sorry to say that I completely agree with Alito. In this post, I will highlight some of the reasons why. Let me first acknowledge, though, that I do not view the path to the correct statutory answer as a simple one. It requires care to avoid some pitfalls.

1. Gorsuch’s majority opinion “proceed[s] on the assumption that ‘sex’ … refer[s] only to biological distinctions between male and female” (Majority at 5), but contends that “homosexuality and transgender status are inextricably bound up with sex”: “to discriminate on these grounds requires an employer to intentionally treat individual employees differently because of their sex.” By his account, if an employer is okay that a female employee is attracted to men, that employer is discriminating on the basis of sex if he penalizes a male employee for being attracted to men. Ditto if the employer retains a self-identifying female “who was identified as female at birth” but fires a person who now identifies as female “who was identified as a male at birth.” (Majority at 10-11.)

As a technical matter, Alito points out that it is indeed “quite possible for an employer to discriminate on those grounds [i.e., sexual orientation or gender identity] without taking the sex of an individual applicant or employee into account”—e.g., through a blanket policy against hiring gays, lesbian, or transgender individuals. Indeed, he observes, employees’ counsel conceded the point at oral argument. (Dissent at 8-9.)


Jed Shugerman on the Imaginary Unitary Executive
Michael Ramsey

Jed Handelsman Shugerman (Fordham Law School) has posted two new papers (or, Parts I and II of one paper) on SSRN: The Indecisions of 1789: Strategic Ambiguity and the Imaginary Unitary Executive (Part I) (61 pages) and The Decisions of 1789 Were Non-Unitary: Removal by Judiciary and the Imaginary Unitary Executive (Part II) (52 pages). Here is the abstract:

Supporters of the unitary executive rely on “the Decision of 1789” to establish an originalist basis for presidential removal power at will. However, the first Congress’s legislative debates and a diary (missed by legal scholars) suggest strategic ambiguity and retreat on the constitutional questions, and the Treasury Act contradicted the unitary model. Here are seven overlooked moments from 1789 that dispel unitary assumptions:

1) The “decision” is premised on an ambiguous text and an indecisive unicameral legislative history. Madison's switch from explicit power to a contingency clause was likely strategic ambiguity to get the bill passed in the Senate and to move forward on an urgent legislative agenda. House opponents called this move a retreat and questioned its integrity, and the House debates show the presidentialist/unitary view was held by only one third of the House...

2) …and a Senator’s diary indicates the Senate sponsors, in order to win passage, denied the clause was important, disclaimed its constitutional meaning, and disavowed even the presidential power itself. A comment by a House member who supported the presidentialist view hinted at this strategy on the day of the pivotal vote.

3) Justices have erred in claiming that the first Congress decided officers served “at will.” Few members of Congress spoke in favor of presidential removal at pleasure in 1789. The first Congress gave such a low degree of protection to only two offices: marshals and deputy marshals. Meanwhile, in the Treasury debate, opponents of presidential removal power warned against presidential corruption and successfully deleted (without needing debate) a provision that the Treasury Secretary would “be removable at the pleasure of the President.”

4) A tale of two Roberts: two finance ministers, one English, one during the Articles of Confederation era, both scandalous. A reference by Madison during the Treasury debate provide context for independent checks, as opposed to a unitary hierarchy.

5) Judges and scholars have missed that Madison proposed that the Comptroller, similar to a judge, should have tenure “during good behavior.” Though Madison dropped this proposal, the debate reflected his more consistent support for congressional power and how little had been decided in the Foreign Affairs debate.

6) Most problematic for the unitary theory, the Treasury Act’s anti-corruption clause established removal by judges: Offenders “shall be deemed guilty of a high misdemeanor… and shall upon conviction be removed from Office.” The 1789 debates had focused on presidential corruption of finance, and this clause allowed relatively independent prosecutors and judges to check presidential power. Congress added similar judicial removal language to five other statutes between 1789 and 1791, and many more over the next 30 years.

7) These debates pilloried prerogative powers and discussed justiciability of for-cause removals in the English writ tradition, suggesting a larger role for Congress and the courts to investigate presidential power.

For the powers cited by unitary theorists (the constitutional basis for presidential removal power, offices held “during pleasure”), the first Congress was, in fact, indecisive. On whether the president had exclusive removal power, the first Congress decisively answered no. If post-ratification history is relevant to constitutional meaning, the “Decision of 1789” presents more challenge than support for the unitary theory, with implications for Seila Law v. CFPB, independent agencies, independent prosecutors, the Trump subpoena cases, and justiciability.

Without having yet read the whole paper, I would only say quickly that the core of the unitary executive theory is that the President has removal power, not necessarily that the President has exclusive removal power.  So I'm not sure I see that point (6) above is "[m]ost problematic" (or even really problematic at all) for the unitary theory.  The process described does seem of questionable constitutionality, but that is because of the impeachment clause, not the executive power clause.


More Utah Originalism from Justice Thomas Lee
Michael Ramsey

From the Utah Supreme Court's unanimous decision in Mitchell v. Roberts (June 11. 2020), per Associate Chief Justice Thomas Lee: 

We would thus uphold the legislature’s decision if the question went merely to the reasonableness of its policy judgment. But that is not the question presented for our review. We are asked instead to interpret and apply the terms of the Utah Constitution (in particular, the Due Process Clause). We take a solemn oath to uphold that document—as ratified by the people who established it as the charter for our government, and as they understood it at the time of its framing. That understanding is controlling.

The original meaning of the constitution binds us as a matter of the rule of law. Its restraint on our power cannot depend on whether we agree with its current application on policy grounds. Such a commitment to originalism would be no commitment at all. It would be a smokescreen for the outcomes that we prefer.

Our laws are written down for a reason. And a key reason is to establish clear, fixed limits that the public may rely on—unless and until the law is repealed or amended by established procedures for doing so. The people of Utah retain the power to amend the Utah Constitution to alter the legislature’s authority in this area if they see fit. But the document as it stands (and as originally understood) forecloses the legislature’s power to enact legislation that retroactively vitiates a ripened statute of limitations defense.

And from later in the opinion:

In the latter part of the nineteenth century the principle of due process was viewed at least in part through the lens of the separation of powers and the concept of vested rights. Due process thus flavored the original understanding of the “legislative power” throughout the country and specifically in Utah. And the original understanding of the ratifying public dictates our answer to the questions presented in this case.

In the era of the framing of the Utah Constitution, the public understood the principle of “due process,” at least in part, as a matter relegating certain functions to the courts and not the legislature. Nathan S. Chapman & Michael W. McConnell, Due Process As Separation of Powers, 121 YALE L.J. 1672, 1781–82 (2012). The legislature was viewed as prohibited from exercising judicial functions—in interpreting and applying the law to the disposition of a case in which a party’s rights or property were in dispute. “This meant the legislature could not retrospectively divest a person of vested rights that had been lawfully acquired under the rules in place at the time.” Id. at 1782. The legislature “could enact general laws for the future, including the rules for acquisition and use of property, but [it] could not assume the ‘judicial’ power of deciding individual cases.” Id. Retroactive divestment statutes were viewed as judicial in nature (in the nature of “deciding individual cases”) because these laws were backward looking and operated to deprive individuals of rights and property “acquired under the rules in place at the time” of acquisition. Id. at 1782; id. at 1738 (“[C]ourts invalidated legislative acts to protect vested rights because the acts were quasi-judicial ‘sentences’ rather than genuine ‘laws.’”). Thus, valid legislative acts, in contrast to retroactive divestment statutes, stated the law going forward rather than “determin[ing] specific applications of law or . . . punish[ing] past acts”—functions relegated to the judiciary.14 Id. at 1719. Because divestment statutes operated to confiscate or vitiate previously vested rights, the nineteenth-century public viewed these laws as “judicial decrees in disguise.” Nathan N. Frost et al., Courts over Constitutions Revisited: Unwritten Constitutionalism in the States, 2004 UTAH L. REV. 333, 382 (2004) (citation omitted). And the public viewed such legislative encroachment into the domain of the judiciary as unconstitutional both as a matter of the principle of separation of powers itself and under the due process clause, which was understood as policing the division of powers between coordinate branches of government.

(Via How Appealing.)