12/13/2020

Even More on Presidential Self-Pardons
Michael Ramsey

Paul J. Larkin, Jr. (The Heritage Foundation) has posted The Legality of Presidential Self-Pardons (30 pages) on SSRN.  Here is the abstract:

The traditional understanding of the Article II Pardon Clause is that the President may grant clemency to anyone who has committed a federal offense. Yet, a question exists whether that “anyone” includes the President. The issue has arisen on three occasions: in the 1970s, when President Richard Nixon was under investigation for his involvement in crimes associated with Watergate; in the 1980s, when the Iran-Contra Investigation raised the question whether President George H.W. Bush knew about an illegal arms-for-hostages arrangement; and more recently when President Donald Trump publicly stated that he had the legal authority to pardon himself to end a Department of Justice investigation into Russia’s involvement in the 2016 presidential election. No court has ruled on the legitimacy of a presidential self-pardon, and commentators have disagreed over the issue. In my opinion, the Article II Pardon Clause allows the President to pardon himself, but the Article I Impeachment and Removal Clauses permits Congress to remove the President for doing so.

Clemency was a prerogative of the English Crown. The King’s grant of a pardon was conclusive and not subject to revision by Parliament or the English courts. The Pardon Clause reflects the prerogative nature of that power. Its text contains only two restrictions—one limiting clemency to federal offenses, the other denying the President the ability to halt impeachment proceedings—and neither one prevents self-pardons. Supreme Court case law does not justify creating a self-pardon exception. As interpreted by the Court, the Pardon Clause is the last surviving remnant of the royal prerogatives. To be sure, the Take Care Clause imposes a fiduciary obligation on a President, one comparable to the obligation borne by a private trustee, to act in the best interests of his client—the public—and a President can breach that duty by excusing himself from criminal liability. But the Impeachment and Removal Clauses provide the appropriate remedy for any abuse of presidential authority, including any misuse of the pardon power. That conclusion will not satisfy anyone who believes that there must be a judicial remedy available for every wrong, but it is the best reading of the text of our Constitution.

I think he needs to deal with the "grant" argument, however.

In the Washington Post, former judge J. Michael Luttig reaches the opposite conclusion, without relying on the "grant" argument: No, President Trump can't pardon himself.  (Via Jonathan Adler at Volokh Conspiracy).  From the core of the argument: 

So why is it clear that the president lacks the power to pardon himself? There are three reasons. The language of the pardon power itself is ambiguous in the face of a constitutional expectation of clarity if the Framers intended to invest the president with such extraordinary power—a power in the sovereign that was little known to the Framers, if known at all.

Second, the Framers clearly contemplated in the impeachment provisions of the Constitution that the president would not be able to violate the criminal laws with impunity. There, without so much as a hint of a president's power to avoid criminal liability through self-pardon, they provided that even "in Cases of Impeachment," for which the president can only be removed and disqualified from holding high federal office, "the party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law."

And last, but not least, a power in the president to pardon himself for any and all crimes against the United States he committed would grievously offend the animating constitutional principle that no man, not even the president, is above and beyond the law.

Though I'm sympathetic to Judge Luttig's bottom line, I find all of these arguments unpersuasive.  As to the first, unless one relies on the "grant" argument, the language of the pardon power is actually pretty clear, as Paul Larkin argues in the article linked above.  Judge Luttig's second argument would seem to exclude not just the President but all executive and judicial officers from the pardon power, which is surely wrong (at least, contrary to the way it's always been read).  And the third argument seems little more than a fancy way of saying he thinks it's a bad idea.

Here's an argument that may be more persuasive.  People of the founding era -- and especially anti-federalists such as Patrick Henry and George Mason -- were particularly concerned about the Constitution's powerful presidency.  One of the worries, expressed at the drafting convention and in the ratification debates, was that the pardon power would allow the President to shield his cronies from criminal liability.  But (so far as I'm aware), no one expressed a concern that a criminal President could pardon himself.  If that had been a plausible reading of the text at the time, it seems highly likely that Henry, Mason, etc. would have made it a central objection.  After all, if one thinks the President's power to pardon his cronies is a problem, surely the President's power to pardon himself would be an even greater problem.  Their failure to make this point suggests an assumption at the time that the text did not give the President this power.

12/12/2020

Mark Pulliam on Justice Thomas
Michael Ramsey

At Law & Liberty, Mark Pulliam: Clarence Thomas’ Road Less Traveled (reviewing the film Created Equal: Clarence Thomas in His Own Words). From the introduction: 

Early on in Michael Pack’s gripping new documentary on Justice Clarence Thomas, Created Equal: Clarence Thomas in His Own Words—a first-person profile of the controversial justice, featuring frank interviews with Justice Thomas and his wife, Virginia—Thomas refers to a poem he studied in high school, Robert Frost’s  The Road Not Taken. The line that stuck with him after all these years was “Two roads diverged in a wood, and I—/I took the one less traveled by,/And that has made all the difference.” (Emphasis added.) At critical junctures in his life, he seems to suggest, he took the unconventional route, leading to a destination that—while satisfying to him—may be difficult for others to accept. Alas, a pilgrim’s journey is his own, and Thomas has the confidence and self-awareness not to doubt his choices.

And from later on:

... On a personal level, Thomas is very likeable, which comes through in Pack’s documentary. Much of Created Equal consists of Thomas speaking directly into the camera. His warm nature is obvious from his disarming demeanor and booming laugh.

Thomas’ story is full of drama. His odyssey from an impoverished, Gullah/Geechee-speaking childhood in Pin Point, Georgia during the Jim Crow era, to studying law in New Haven; from working in the Missouri Attorney General’s office (under then-A.G. John Danforth) to chairing the U.S. Equal Employment Opportunity Commission under President Ronald Reagan; from a brief tenure on the D.C. Circuit (filling the seat vacated by Robert Bork) to becoming the 106th justice on the Supreme Court following a narrow (52–48) Senate confirmation vote, is a fascinating narrative.

Thomas’ journey is all the more remarkable when one includes his fatherless upbringing; being raised by his strict but uneducated grandparents; the sympathetic tutelage of Catholic nuns at his segregated parochial school, where he was a devoted altar boy; his teenage desire to study for the priesthood; his disillusionment as the only black student in a Catholic seminary; his radicalization while attending Holy Cross College during the tumultuous 60s (where he became active in the Black Power movement and protested in support of Angela Davis); and his eventual discovery of—and conversion to—conservative ideas.

From the conclusion:

Created Equal does not explore Thomas’ judicial philosophy in any detail and does not delve into the body of his decisions. It provides a fresh perspective in other ways. The movie is about the man. The best way to understand Thomas as a person is to watch him tell his life story, in his own words, looking directly into the camera. The viewer is impressed that Thomas is real; there is nothing phony or fake about him. He is Everyman.

12/11/2020

Stephen Sachs on Originalism, Personal Jurisdiction and the Ford Case
Michael Ramsey

At Volokh Conspiracy, Stephen Sachs (Duke): Originalism and Personal Jurisdiction: Some Hard Questions. From the introduction:

I promised quite a while ago to say more about Ford Motor Co. v. Montana Eighth Judicial District Court, the personal jurisdiction case heard this term. (Transcript here; Howard Wasserman's SCOTUSBlog summary here.) The Justices seemed to find the case difficult, which it is—both under modern doctrine and under the original rules.

At oral argument, the parties declined (alas!) to argue for abandoning International Shoe and returning to first principles. Under the prior rules of personal jurisdiction, the plaintiffs might have had a way to win. But it would have involved very different arguments than the ones they put before the Court, which under the traditional rules ought to lose. That makes it hard to say which party's victory is more compatible with first principles. And it reminds us that fixing personal jurisdiction is going to be a task for Congress, not only for the courts.

And from the core of the originalist analysis:

As I've argued before, the relevant source of law here isn't the Fifth or Fourteenth Amendments, but general and international law. (For more on why, see the sources in my previous post.) In the nineteenth century, for jurisdiction over an individual, those rules usually required in-state service of process. Except for weird cases like diplomats or invading armies, people within a state's borders owed that state's government a temporary allegiance. [Ed.: Yes, meaning that they were "subject to the jurisdiction thereof"!] They had to listen to what that government said, which included what its courts said—and other governments would usually hold them to it, even after they left town. By contrast, most people outside a state's borders didn't have to listen to what its government said. If you were a citizen or resident who happened to be abroad, you might owe your home jurisdiction a permanent allegiance; if its statutes allowed for something other than in-state service, you might be bound by those statutes too. But an absent nonresident (like Marcus Neff) wasn't bound to come when called, and in the meantime he wasn't obliged to submit to the courts' decisions.

For corporations, the rules were more complicated, because corporations were creatures of law. If six Montanans wanted to form a single entity to own Montana property, enter Montana contracts, or sue or be sued in Montana courts, it was up to Montana corporate law whether to let them. (And often the answer was "no": corporate franchises were hard to come by.) ...

By default, then, a State A corporation could only sue or be sued in State A, because that's the only place where it really existed as a legal entity with corporate privileges. Everywhere else, it was just a group of individuals. But other states could choose to recognize the corporation and to extend it privileges by comity—and they generally would, absent some local rule to the contrary. If an out-of-state citizen like Henry Ford wanted to buy a plot of land in Montana and sell cars there, or to send agents into Montana to enter contracts on his behalf, he could; a law forbidding him on the basis of his out-of-state citizenship would have violated Art. IV's Privileges and Immunities Clause. But corporations weren't guaranteed any privileges and immunities, so they had to get the state's permission, express or implied. And this permission could be conditioned on various things, including a consent to be sued in its courts.

The "implied" part was what made things confusing. What if an out-of-state corporation tried to exercise corporate privileges in Montana, for which Montana required corporate registration? One response might be to hold the acts ultra vires and invalid, or perhaps to treat them as the acts of the individual shareholders, unsheltered by limited liability. But another was to recognize the corporation by comity, serve process on their in-state agent, and to apply what the Court in Old Wayne Mutual Life called a kind of estoppel. If a corporation claimed to exercise corporate privileges in another state, "it will be deemed to have assented to any valid terms prescribed by that commonwealth as a condition of its right to do business there, and it will be estopped to say that it had not done what it should have done in order that it might lawfully enter that commonwealth and there exert its corporate powers." In other words, Ford can't claim to be a real corporation in Montana when it comes to forming contracts, but turn around and claim that they're not a real corporation in Montana when it comes to getting sued on those contracts.

The interesting next section is: "How did we get from there to here?"

I think this is probably right.  It seems like it might lead to unfortunate results (though that shouldn't deter an originalist).  But maybe it wouldn't: couldn't corporations (that were worried about expansive state jurisdiction) operate through locally-incorporated subsidiaries, so that the parent itself never did business in the state and so never had to consent to the state's jurisdiction? 

12/10/2020

Why Justices Thomas and Alito are Correct About Mandatory SCOTUS Jurisdiction
Andrew Hyman

Imagine that one state sues another.  In such a case, the question arises whether the Supreme Court must exercise its original jurisdiction if requested to do so.  
 
In February of this year, in the case of Arizona v. California, Justice Thomas joined by Justice Alito opined that “we likely do not have discretion to decline review in cases within our original jurisdiction that arise between two or more States.”  They made the same point in a 2016 case, Nebraska v. Colorado, saying: "Congress has long provided by statute that this Court 'shall have original and exclusive jurisdiction of all controversies between two or more States.' 28 U. S. C. §1251(a)(emphasis added)."  In both of the cases mentioned, SCOTUS denied leave to file the bill of complaint, without any explanation, and so the only opinion was Justice Thomas's dissent from the denial, joined by Justice Alito. 
 
Ever since 1976, SCOTUS has interpreted the quoted text of 28 U.S.C. §1251(a) not to mean that the Supreme Court must accept and try every case between two states, but rather to mean that if SCOTUS does not take the case then no other federal court can try the case either.  That 1976 case was Arizona v. New Mexico, and Justice Stevens dissented, saying (subject to an exception not important here), "I do not believe the comments which the Court has previously made about its nonexclusive original jurisdiction adequately support an order denying a State leave to file a complaint against another State."  Stevens took a similar position in the 1981 case of California v. West Virginia: "The fact that two sovereign States have been unable to resolve this matter without adding to our burdens does not speak well for the statesmanship of either party but does not, in my opinion, justify our refusal to exercise our exclusive jurisdiction under 28 U.S.C . 1251(a)."  Justice White took a similar position in the 1988 case of Louisiana v. Mississippi.
 
This controversy has not escaped the attention of published scholars.  For example, in a 1982 BYU Law Review comment, Julie Vick Stevenson wrote (at page 740): 
 
[I]t is clearly inappropriate to apply the 1251(b) discretionary test to section 1251(a)....The majority in Arizona v. New Mexico....based its decision on faulty analysis, applying the 1251(b) discretionary test to a 1251(a) situation....This course of action not only ignores the statutory distinction in section 1251, but also defeats the traditional purposes of the article III grant of original jurisdiction to the Supreme Court.
 
As Julie Vick Stevenson urged, let's consider the full text of 28 U.S.C. 1251:
 
(a) The Supreme Court shall have original and exclusive jurisdiction of all controversies between two or more States.
(b) The Supreme Court shall have original but not exclusive jurisdiction of:
(1)All actions or proceedings to which ambassadors, other public ministers, consuls, or vice consuls of foreign states are parties;
(2) All controversies between the United States and a State;
(3)ll actions or proceedings by a State against the citizens of another State or against aliens.
 
It is a very strange reading of this statute that attributes to Congress the intention to completely prohibit U.S. District Courts from trying a case between two states, merely because the U.S. Supreme Court won't be bothered to try the case.  A vastly more plausible interpretation is, as Julie Vick Stevenson urged, that 28 USC 1251(a) entitles two states to appear in the Supreme Court for trial, whereas 28 USC 1251(b) gives the Supreme Court discretion whether to operate as a trial court. This distinction in 28 USC 1251 dates all the way back to the Judiciary Act of 1789:
 
Sec. 13.  And be it further enacted, that the Supreme Court shall have exclusive jurisdiction of all controversies of a civil nature, where a state is a party, except between a state and its citizens; and except also between a State and citizens of other states, or aliens, in which latter case it shall have original but not exclusive jurisdiction.
 
Just like when you consider 28 USC 1251(a) in context of the whole section, this whole section of the Judiciary Act makes clear that it is not prohibiting the lower federal courts from trying any of the cases described just because the judges of the Supreme Court do not want SCOTUS to do it.  Such was the consistent understanding and practice from 1789 to 1976, and I am not aware that anyone has ever suggested any reason why the framers of the Judiciary Act would possibly have wanted any case between states to be tried only in state court and not in federal court, at the mere discretion of SCOTUS.

 The President Certainly Can "Grant" Himself a Pardon
David Weisberg

Andrew Hyman (here) and Eric Muller (here) have asserted that the president cannot grant himself a pardon, and Michael Ramsey has recently disclosed (here) that he leans toward acceptance of that position.  I think that a careful analysis irrefutably defeats that position.

Both Hyman and Muller cite principles of real property law in an attempt to establish that, where something is granted, there must necessarily be two persons involved: a grantor and a grantee.  Hyman cites a Colorado Supreme Court case in which the court referred to “the general rule that a grantor and grantee cannot be the same person for purposes of conveying property[.]”  And Muller cites a ratification-era legal dictionary that defines a “grant” as a “conveyance”, and a “conveyance” as “a deed which passes or conveys land from one man to another.”  Thus, Hyman and Muller both conclude that the “grant” of something must necessarily involve two persons, and Prof. Ramsey agrees. 

But the maxims of real property law are completely inapposite to a situation where what is granted is a pardon, and not real estate.  Maxims from real property law are inapposite because, if one grants oneself property that one already owns, that “grant” is seemingly a vacuous nullity.  Before the grant was made, the owner owned the property, and, after the grant was made, the same owner owned the same property.  The situation would be entirely different if the president could grant himself a pardon: before the grant was made, he would not have a pardon; after the grant was made, he would have one. 

But, what about the notion that a grant requires two different persons, one grantor and one grantee?  This notion is erroneous, and it probably seems plausible only because the verb “grant” is a highfalutin’, twenty-five cent word infrequently used in everyday conversation.  But consider a very mundane example: “Attorney Smith, in his capacity as managing partner of the law firm, granted to himself 25% of the firm’s profits.”  Is there anything paradoxical, mysterious, or self-contradictory about that proposition?  Absolutely not. 

The grantor and the grantee need not be two different persons, if one single person is acting in two different capacities in the course of the transaction.  If Donald Trump were to pardon himself, he would be acting in his official capacity as president when he grants the pardon and as a private individual when he accepts the pardon.  Nothing in the grammar or logic of the verb “grant” bars that from happening, and the plain meaning of the Constitution does not bar it either.      

The only stated limitation on the president's power to grant pardons is the exception for "Cases of Impeachment."  The use of the verb "grant" certainly does not amount to an explicit limitation of that power, and it does not give rise to any implicit limitation that excludes self-pardons.  The "Attorney Smith" example proves that you don't need two different persons to have a proper grant with a grantor and a grantee; one person acting in two different capacities will do the trick. 

MICHAEL RAMSEY ADDS:  Reader Jonathan Mattox emailed me a comment along the same lines, posted here with his permission:

The word “grant” does contemplate that two parties are involved. As a real estate lawyer, I sometimes have someone call me who wants me to prepare a deed to themselves from themselves. I always tell them that won’t work. That’s because a grant require a grantor and a grantee.

But in my line of work as a real estate lawyer, there are times where one person can be both the grantor and the grantee. This possibility arises when a person is a grantor in one capacity and a grantee in another capacity.

A couple examples:

John Smith Sr.’s will leaves everything to the executor his estate. John Smith Jr. is named Executor. After the estate is settled, John Smith Jr., Executor of the estate of John Smith, Sr., conveys property willed to himself as executor unto himself, individually.

I establish  a trust and convey my house to myself as Trustee of the Trust. I later decide to take the property out of trust to enter into a mortgage (the lender won’t allow me to enter into the loan through a trust). As trustee, I convey the property to myself.

The point is that one person can be both a grantor and a grantee if different legal capacities are involved. If a former president was going to be prosecuted, the prosecution would have to be brought against the former president individually, since he is no longer president. Thus, a presidential pardon would be in the form of “Donald J. Trump, president of the United States” granting the pardon to “Donald J. Trump, individually”.

I believe these examples work against the theory that the word “Grant” precludes a self-pardon.

12/09/2020

Bryan Garner at the Supreme Court
Michael Ramsey

Yesterday's oral argument in Facebook, Inc. v. Duguid featured the Supreme Court debut of celebrity textualist and Scalia co-author Bryan Garner. Elura Nanos at Law & Crime has details: Supreme Court Justices Appeared Dazzled by Legal Celebrity at Oral Arguments in Robocall Case Against Facebook.  From the introduction:

[Duguid's] legal team, knowing that SCOTUS will face difficult questions of statutory interpretation in the case, offered up some legal celebrity firepower. Arguing on their behalf was renowned scholar Bryan Garner.

Garner, the editor of Black’s Law Dictionary and author of numerous well-known treatises on legal writing, is the kind of legal star whose rookie card would be worth thousands if jurists did that sort of thing. While well-known within legal circles, Garner is not experienced as a Supreme Court litigator; Tuesday’s arguments constituted Garner’s SCOTUS debut.

As a result of Garner’s participation, Tuesday oral arguments amounted to 90 minutes of mind-numbing debate over grammar and syntax rules. The event was a feat of legal geekery heretofore unseen—and some of the justices were happy to bask in Garner’s academic glow.

In his authoritative baritone, which came through even in telephonic oral arguments, Garner walked the justices through his arguments on what statutory wording really meant and how it should be applied to Facebook’s wrongdoing. As Garner nimbly led the justices through a discussion of adverbial modifiers, “viperine” interpretation of statutes, and conjunctive versus disjunctive distinctions, the justices appeared content to assume the position as students in Garner’s classroom.

Here is SCOTUSblog's summary of the case: Case preview: Justices again take on anti-robocall law.

At LAWnLinguistics, Neal Goldfarb has two long posts (with more to come) (via How Appealing):

Robocalls, legal interpretation, and Bryan Garner (the first in a series)

The precursors of the Scalia/Garner canons

From the introduction to the first post, here's his summary of the case:

The case began when Noah Duguid filed a class-action suit against Facebook for violating the Telephone Consumer Protection Act, a 1991 statute that regulates telemarketing. He accused Facebook of having violated the statute’s restrictions on sending texts by means of what the statute referred to as an “automatic telephone dialing system”—an “ATDS,” for short. Facebook argues that the texts about which Duguid is complaining were not sent using such a system, and at issue is how to interpret the statute’s definition of an ATDS.

That definition reads as follows:

The term “automatic telephone dialing system” means equipment which has the capacity—

(A) to store or produce telephone numbers to be called, using a random or sequential number generator; and

(B) to dial such numbers.

The dispute concerns the phrase using a random or sequential number generator. The specific question is whether the phrase should be understood as modifying both store…telephone numbers and produce telephone numbers (Facebook’s position) or as only produce telephone numbers (Duguid’s).

And he does not think much of the canons of interpretation Garner uses in support of Duguid's side:

The canons in question are the Last Antecedent Canon, the Series-Qualifier Canon, and the Nearest Reasonable Referent Canon (although only the first two are cited or discussed in the briefs by name). They are set out below, as they appear in the [Scalia and Garner's book Reading Law], but without the accompanying commentary:

Last-Antecedent Canon. A pronoun, relative pronoun, or demonstrative adjective generally refers to the nearest reasonable antecedent.

Series-Qualifier Canon. When there is a straightforward, parallel construction that involves all nouns or verbs in a series, a prepositive or postpositive modifier normally applies to the entire series.

Nearest-Reasonable-Referent Canon. When the syntax involves something other than a parallel series of nouns or verbs, a prepositive or postpositive modifier normally applies only to the nearest reasonable referent.

I’ve previously written about these canons at LAWnLinguistics, and in those posts (collected here), I criticize the canons for several reasons. In addition to pointing out their departure from preexisting law, I said in my first post that “they don’t hang together as a coherent set of principles.” In a later post, I said that I’d come to believe “that the framework established by Reading Law is not merely problematic but deeply flawed.” That remains my conclusion, but at this point I’ll be more blunt.

The Last Antecedent Canon, the Series Qualifier Canon, and the Nearest Reasonable Referent Canon collectively add up to a confused and confusing mess. The distinctions they draw are arbitrary, and Series Qualifier and Nearest Reasonable Referent Canons are in conflict with one another: they overlap in their coverage, and within the area of overlap their interpretive prescriptions point in opposite directions.

12/08/2020

Robert McDonald on Gregory May on Albert Gallatin
Michael Ramsey

At Law & Liberty, Robert M.S. McDonald (U.S. Military Academy -- History) reviews Gregory May's Jefferson’s Treasure: How Albert Gallatin Saved the New Nation from Debt (Regnery 2018).  From the introduction: 

Those who have never heard his name can be forgiven. Gallatin has long been eclipsed by Alexander Hamilton, his swashbuckling predecessor as Secretary of the Treasury, who in the 1790s made the national government’s assumption of the states’ Revolutionary War debts the basis of the Federalists’ controversial financial program. After Hamilton took on this debt, it was Gallatin who put plans in motion to pay it off.

Gallatin served as Treasury secretary under both Thomas Jefferson and James Madison. He’d be notable solely for his unsurpassed longevity in that office. Yet even more significant is that, between Jefferson’s inauguration in 1801 and 1812, the year of Madison’s reelection, the national debt fell from $83 million to $45 million—little more than half of where it stood when Gallatin took charge of America’s finances.

The War of 1812 pushed the debt back up, but afterwards paying it down returned as the nation’s budgetary priority. Gallatin’s basic policy remained in place until, under President Andrew Jackson, the national debt reached zero.

With Gregory May’s Jefferson’s Treasure: How Albert Gallatin Saved the New Nation from Debt, Gallatin has a biography worthy of his accomplishments. May’s account exemplifies Gallatin’s energy, good humor, precision, and importance. While not the first modern treatment of the fourth Treasury secretary’s contributions, it is the fullest, most exhaustively researched, and best at balancing his public and personal lives with the times he helped shape.

And here is the book description from Amazon:

George Washington had Alexander Hamilton. Thomas Jefferson had Albert Gallatin.

From internationally known tax expert and former Supreme Court law clerk Gregory May comes this long overdue biography of the remarkable immigrant who launched the fiscal policies that shaped the early Republic and the future of American politics. Not Alexander Hamilton---Albert Gallatin. To this day, the fight over fiscal policy lies at the center of American politics. Jefferson's champion in that fight was Albert Gallatin---a Swiss immigrant who served as Treasury Secretary for twelve years because he was the only man in Jefferson's party who understood finance well enough to reform Alexander Hamilton's system. A look at Gallatin's work---repealing internal taxes, restraining government spending, and repaying public debt---puts our current federal fiscal problems in perspective. The Jefferson Administration's enduring achievement was to contain the federal government by restraining its fiscal power. This was Gallatin's work. It set the pattern for federal finance until the Civil War, and it created a culture of fiscal responsibility that survived well into the twentieth century.

12/07/2020

Larry Solum's Legal Theory Lexicon on "Context and Meaning"
Michael Ramsey

At Legal Theory Blog, Larry Solum has posted an entry in his Legal Theory Lexicon: Context and Meaning. From the introduction: 

One of the most important tasks performed by lawyers and judges is the "interpretation" of legal texts, including constitutions, statutes, regulations, rules, contracts, and the list goes on.  One aspect of communication involves the linguistic meaning the words and phrases that make up the text: this aspect of meaning is sometimes called "semantics."  The bare semantic meaning of a legal text is sometimes called the "literal meaning."  But the whole meaning of a text almost always is richer than the literal meaning.  We might ask, "Where does the 'extra' meaning come from?"  The answer to that question is context.  The role of context in the production of meanings is called "pragmatics" by philosophers of language and linguistic theorists.

And from an important later part:

Context plays another important role in the production of meaning.  A legal text can communicate an idea without stating the idea explicitly.  Context can "enrich" or add to the literal meaning of a text.  This is a deep topic, but one way to approach it is by cataloging some of the forms of what is called "pragmatic enrichment."

Under this topic the post discusses "implicature," "impliciture," "presupposition," and "modulation."

None of this is inconsistent with a textualist approach to interpretation.  As Professor Solum says later: "Textualists are concerned with the meaning of the statutory text: they look to context in order to determine the content communicated by the text of the statute."  It's sometimes said that textualists should not look at context, but that's wrong.  They look at context to determine textual meaning; the key is that they don't look to context to go beyond (or against) the textual meaning.

12/06/2020

John Yoo on Presidential Self-Pardons
Michael Ramsey

At AEI, John Yoo: Yes, Trump can pardon himself and his family -- That doesn’t mean he should.  From the core of the argument:

A straightforward reading of the constitutional text makes clear that Trump could have pardoned anyone indicted in the Mueller investigation, including himself. Article II of the Constitution states that the president “shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” This text shows that the Framers made only three exceptions to the pardon power. First, the president can only issue pardons for federal crimes, not state crimes. Second, pardons do not reach civil actions under federal law. Third, the president cannot grant pardons for impeachment. The constitutional text contains no other limitations on the presidential pardon power, and the Supreme Court has never attempted to impose one.

Observers have described the breadth of the pardon power as plenary, unfettered, unqualified, and not subject to checks and balances from the other branches. ... While no president has ever pardoned himself, Presidents Richard Nixon and George H.W. Bush considered the possibility. In light of the text of the pardon power and its breadth of use, the Constitution does not appear to prohibit presidents from pardoning their co-conspirators or even themselves.

Critics of this textual reading would suggest that a president can pardon anyone except himself. They could maintain that the “grant” of a pardon implies that the president issues the pardon to someone else; giving it to oneself is not a grant. They might also argue that a “pardon” itself is a legal instrument that can only be given to another, like a gift. [Ed.: see, e.g., here from Andrew Hyman and here from Eric Muller].  These arguments, while weaker than the textual reading in favor of an untrammeled presidential power, demand that we turn to the original understanding for confirmation.

Historical evidence from the Framing cannot overcome the plain meaning of the constitutional text — if anything, it supports this textual reading.

[There follows extensive discussion of founding-era statements that appear to me to be inconclusive at best.]

I remain somewhat unsure on this issue, although I'm leaning more to the Hyman/Muller thesis.  Professor Yoo's argument does not seem to me to refute it.  I agree that in general plain meaning should prevail over inconclusive historical evidence.  But Professor Yoo assumes his conclusion by saying that the constitutional text is plain here.  The whole point of the Hyman/Muller thesis is that the text itself indicates a limit on self-pardons through the use of the word "grant" (an action requiring two people, a grantor and a grantee)  If the historical evidence Professor Yoo lists is inconclusive, as it seems to be, the textual issue remains (at most) unresolved -- it doesn't mean that his interpretation of the text prevails.

12/05/2020

Ed Whelan on Noah Feldman on Justice Scalia
Michael Ramsey

In the New York Review of Books, Noah Feldman (Harvard) reviews The Essential Scalia (Edward Whelan & Jeffrey Sutton, eds.): The Battle Over Scalia’s Legacy (but mostly making the point, as summarized in the subhead: "The late justice advocated judicial restraint, textualism, and originalism, but conservative jurists will have to choose among them.").  From the introduction:

The three deeply conservative justices whom Donald Trump named to the Supreme Court—Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett—profess adherence to the judicial philosophy of the late Justice Antonin Scalia. Their appointments all but ensure not only a conservative majority on the Court for years to come but also the transmutation of Scalia’s jurisprudence—based on the principles of judicial restraint, originalism, and textualism—from an outsider legal theory into a mainstream constitutional doctrine.

These principles took shape gradually in Scalia’s lectures and judicial opinions, which are excerpted in a new collection, The Essential Scalia. Judicial restraint is, roughly, the idea that judges must not make what he called “legislative judgments” of public policy but should restrict themselves to applying the law. Originalism is the idea that “the provisions of the Constitution have a fixed meaning” and “mean today what they meant when they were adopted, nothing more and nothing less.” Textualism is a method of interpreting statutes by relying solely on “the text of a statute” rather than “subjective legislative intent” as well as any “broader social purposes” the law may have been intended to serve. Linking the three was generally intended to constrain judges from what Scalia saw as illegitimate activism.

Yet at the moment of its ascendance, conservative legal thought is facing a crisis. Tensions between Scalia’s principles had mostly been noted only in law journals. Last summer, however, they burst into public view in surprising Supreme Court rulings on high-profile issues like abortion and gay and transgender rights.

Ed Whelan responds at NRO Bench Memos: Noah Feldman’s Confusing Critique of Scalia on Judicial Restraint.  From the introduction: 

... Feldman’s confusing account of Scalia’s “judicial restraint” leads him to posit tensions that don’t exist and to misframe those that do.

... Feldman contends that Scalia’s jurisprudence is “based on the principles of judicial restraint, originalism, and textualism.” He fairly summarizes judicial restraint as “roughly, the idea that judges must not make what [Scalia] called ‘legislative judgments’ of public policy.” But several paragraphs later comes this bizarre passage about Scalia’s jurisprudence:

From the start there were latent contradictions between originalism and judicial restraint. Judicial restraint called for judges to defer to Congress’s authority to pass laws. But what if the original meaning of the Constitution required striking down laws that had been passed in the centuries since ratification?

The “latent contradictions” existed only if Scalia embraced a principle of judicial restraint under which judges must always “defer to Congress’s authority to pass laws”—in other words, may never rule a law to be unconstitutional. I doubt that any proponent of judicial restraint has ever espoused such a principle (which is tantamount to rejecting the power of judicial review). Scalia certainly never did.

Nor would such imaginary “contradictions” have been “latent” for long: Right near the start of his career as a justice, at the end of only his second year on the Court, Scalia penned his famous solo dissent in Morrison v. Olson (1988) in which he argued that the independent-counsel statute was unconstitutional.

And from later on:

More broadly, I believe that Feldman is wrong to include judicial restraint, along with originalism and textualism, in the “Scalian trinity” of jurisprudential principles. I think that Scalia instead understood judicial restraint as a value that originalism and textualism serve. Originalism respects the broad play that the Constitution gives to the democratic processes, and textualism implements the laws that have been democratically enacted.

If a third Scalia principle is to accompany originalism and textualism, it should be Scalia’s commitment to establishing a law of rules. Feldman briefly discusses Scalia’s lecture titled “The Rule of Law as a Law of Rules” (the lead item in The Essential Scalia), but he never explores the tensions that actually do exist between Scalia’s commitment to a law of rules, on the one hand, and his originalism and textualism, on the other. (There is plenty of room, for example, to argue that Scalia’s controversial Free Exercise ruling in Employment Division v. Smith (1990) was driven by his commitment to a law of rules rather than by his originalism.)

I think Whelan is exactly right on these points.  Scalia believed in judicial restraint in the sense of judges not deciding according to their own values and not taking away from the political branches decisions the Constitution committed to the political branches.  But judicial restraint described this way isn't in tension with originalism at all; it's an aspect of originalism.

Judicial restraint defined more broadly to demand very broad judicial deference to the political branches is indeed in tension with originalism.  But, as Whelan says, Scalia never embraced judicial restraint in this sense.  As his decisions show, he was quite willing to invalidate political branch decisions in conflict with the Constitution's original meaning.  A leading modern argument for broad judicial restraint, Judge J. Harvie Wilkinson's Cosmic Constitutional Theory, extensively criticizes Scalia's originalism as counter to democratic decisionmaking.

Nonetheless, I think Feldman is right about a potentially developing struggle over Scalia's legacy -- not over judicial restraint, but over pure textualism versus textualism informed by history and tradition.  Feldman identifies the split between Justice Gorsuch and Justice Alito, for example in Bostock v. Clayton County and McGirt v. Oklahoma.  (John McGinnis makes some similar points in the post linked here).  It remains to be seen, though, how deep that split turns out to be; my guess is that Gorsuch and Alito will find a lot to agree on.