The Originalism Blog

The Past Year in OriginalismMike Rappaport

At Law & Liberty, I have an essay on the past year in originalism.  Every year at the beginning of the Hugh & Hazel Darling February Works-in-Progress Conference, I discuss what I regard as the most significant developments concerning originalism in the past year.  The essay is a slightly revised version of my presentation. 

Perhaps the most important Supreme Court originalist decision involved statutory originalism—the Loper Bright v. Raimondo case, which held that the Administrative Procedure Act did not allow for Chevron deference. In my view, Chief Justice Roberts wrote a persuasive originalist opinion showing that the APA required courts to decide legal questions without Chevron deference. I rarely find Roberts’s opinions persuasive, but this was an exception.

What makes Loper Bright especially significant is that it is likely to have a substantial impact on a large number of cases. Agencies will have less power to implement their policy agendas and less power to engage in the wild and disorienting swings of policy that result when one administration replaces another. Overturning Chevron deference restores some limits on the executive branch. 

Loper Bright is also significant because it may be part of a trend of originalist decisions that constrain the administrative state. Another decision from the past year doing so was SEC v. Jarkesy, which held that a fraud action for civil penalties needed to be decided by a jury in an Article III court. The Supreme Court is standing up to excessive administrative power in ways that originalists should applaud.

I also discuss the debate on originalist methodology in Rahimi: 

While many of the justices made significant statements, I want to highlight the differing positions of Justices Barrett and Kavanaugh.

Kavanaugh argued that when the text is unclear, there are only two ways to resolve it—“history or policy.” He favored history. According to Kavanaugh, “the historical approach examines the laws, practices, and understandings from before and after ratification that may help the interpreter discern the meaning of the constitutional text.” By contrast, the “policy approach rests on the philosophical or policy dispositions of the individual judge.” Thus, “history, not policy, is the proper guide.” Given this stark choice between history and policy, it is not surprising that he not only favored considering history at the time of an enactment but also many years later as the best way of discerning the original meaning.

By contrast, Barrett argued, much more persuasively in my view, that it is only originalist history—history from close to the period of the enactment—that provides evidence of the original meaning. While Kavanaugh cites Scalia for the view that evidence from many years after ratification is legitimately considered, even assuming Scalia meant to endorse that practice, even Scalia can nod.

Barrett also argues—although not in response to Kavanaugh—that even originalist history is not limited merely to precise, narrow historical examples. Instead, she writes that “historical regulations reveal a principle, not a mold” and pulling principle from precedent, whether case law or history, is a standard feature of legal reasoning” even though “reasonable minds sometimes disagree about how broad or narrow the controlling principle should be.”

I agree with Barrett, and I might add that the originalist history is seldom entirely silent on a matter and therefore one can also discern a more likely meaning, even if it is not certain. Thus, Kavanaugh’s dilemma between history and policy is less likely to occur when the originalist history is silent. But I also acknowledge that Kavanaugh does have some important points. While late practice may not have originalist force, it was treated both before and after the Constitution as having some legal force, analogously to judicial precedent. And Kavanaugh is on the mark when he writes that “when determining how broadly or narrowly to read a precedent, a court often will consider how the precedent squares with the Constitution’s text and history.”

 Read the whole thing, as they say. 

Katie Eyer: Textualism as an Equality Practice?Michael Ramsey

Katie R. Eyer (Rutgers Law School) has posted Textualism as an Equality Practice? (104 Texas L. Rev. __ (forthcoming)) (72 pages) on SSRN.  Here is the abstract:

Does textualism promote or protect equality? Several prominent textualist scholars and jurists have raised the possibility that textualism may serve equality values. And yet the role of textualism in protecting equality remains largely unexplored. This Article takes seriously the claim that textualism may promote equality: either as an absolute matter, or in comparison to other statutory interpretation methods. It asks, can textualism be conceptualized as an equality practice, i.e., an interpretive practice that protects or promotes equality?

This Article answers this question with a qualified “yes.” Textualism can promote equality before the law, a thin form of equality often associated with the rule of law. Moreover, this thin form of equality can help to promote thicker forms of equality, by preventing the gerrymandering of disfavored groups out of rights protections, and of favored groups out of burdensome laws. This thin form of legal equality can also further substantive equality by preventing the judicial hobbling of legislative gains secured especially by or for historically marginalized groups (such as civil rights laws, social welfare law, and laws protecting Native Nations’ sovereignty).

But this Article also cautions that the equality-promoting potential of textualism is qualified. Only certain forms of textualism—what other scholars have referred to as “formalistic” textualism—are likely to be sufficiently constraining to create meaningful protections for equality. Moreover, even applying formalistic textualism, there will surely be circumstances where textualism confronts true indeterminacy or even cuts against substantively equality-promoting results. Finally, legal realism poses a genuine challenge to claims that any interpretive theory can meaningfully constrain judicial preferences, and thus to any theory’s claims of equality-promoting potential.

Nonetheless, this Article suggests that it is worth identifying equality as a nascent value of textualism, and theorizing the implications of textualism’s equality-promoting potential. For those who self-identify as textualists—a group which includes a majority of the current Justices on the Supreme Court—understanding equality as one of the values that textualism protects has important methodological implications. And even for those who oppose textualism, consideration of the equality risks of non-textualist methodologies may help avoid the equality harms to which non-formalist methodologies may be especially susceptible.

Rob Natelson on Alien Enemies [Updated]Michael Ramsey

At Law & Liberty, Rob Natelson: Alien Enemies, Alien Friends, and the Concept of “Allegiance”.  From the introduction: 

Even before President Trump invoked powers under the 1798 Alien Enemies Act, the historical meaning of “alien enemy” had become a topic of controversy, because the distinction between an alien enemy and an alien friend is also relevant in the context of immigration and birthright citizenship.

Largely overlooked in this debate has been the legal doctrine that defines the difference between an alien enemy and an alien friend: the doctrine of allegiance, which our Founders inherited from English law. The English doctrine closely paralleled the international law concept of the same name.

To understand the Alien Enemies Act, it is important  to understand the Founding-era rules of allegiance and how they divide alien friends from alien enemies. We cannot here fully address the president’s deportation power, because the Alien Enemies Act does not authorize presidential deportation of all alien enemies—only those participating in an “invasion or predatory incursion … by a foreign nation or government.” It is nevertheless a useful starting point to recover the historical meaning of this distinction.

The doctrine of allegiance is crucial for understanding the Alien Enemies Act, but it also is crucial for understanding the Constitution itself. The meaning of many of that document’s terms rests in part on the meaning of allegiance. Examples include the Define and Punish Clause (Article I, Section 8, Clause 10), which grants power to Congress to regulate immigration and emigration; the requirement that the president be a “natural born Citizen” (Article II, Section 1, Clause 5); the provisions addressing treason (Article I, Section 6; Article II, Section 4; Article III, Section 3 & Article IV, Section 2, Clause 2); and federal and reserved state war powers (Article I, Section 8, Clause 11, Article I, Section 10, Clause 3, and others). And as the Supreme Court recognized in United States v. Wong Kim Ark (1898), allegiance also is central to the meaning of the 14th Amendment’s phrase “subject to the jurisdiction thereof”—and therefore to the meaning of birthright citizenship.

And from the conclusion:

The term “alien enemies” in the Alien Enemies Act includes 1) foreigners in the United States from nations with which we are at war where no specific permission has been granted to stay; 2) foreigners who participate in an attack on the United States, irrespective of whether the United States is at war with their nation of origin; 3) foreigners who otherwise conduct themselves in ways inconsistent with allegiance to the United States; and 4) foreigners who entered the United States illegally.

As noted above, though, status as an alien enemy is not sufficient to trigger the Alien Enemies Act. Those debating whether the Act can be invoked should focus on whether those the president has ordered deported are participants in an invasion or predatory incursion sponsored by a foreign government.

Agreed (at least on the last point).  See my discussion here.

Thanks to Andrew Hyman for the pointer.

UPDATE: Professor Natelson has a related essay at Civitas Outlook: Impeachment: Is Judge Boasberg Guilty of a “High . . . Misdemeanor?” ("Conclusion: It would be unconstitutional to impeach Judge Boasberg for issuing a bad decision.")

Kurt Lash: Prima Facie CitizenshipMichael Ramsey

Kurt Lash (University of Richmond School of Law) has posted Prima Facie Citizenship: Birth, Allegiance and the Fourteenth Amendment's Citizenship Clause (88 pages) on SSRN.  Here is the abstract:

The Fourteenth Amendment Citizenship Clause establishes two conditions for natural born citizenship. First, the person must be born in the United States. Second, the person must be born “subject to the jurisdiction” of the United States. The current debate over the original meaning of the so-called Birthright Citizenship Clause generally divides over how much weight to give each of these two requirements. Some scholars emphasize the role of birth on American soil, making it dispositive unless trumped by a limited and closed set of common law “exceptions.” Other scholars claim the second requirement of “jurisdiction” must be given equal and independent weight. For example, some scholars claim there must be independent evidence that one has become “subject” by way of mutual consent or positive allegiance to the American sovereign. 

This essay proposes a more textually and historically justified way to understand and apply the dual requirements of birth citizenship: Prima facie citizenship. First articulated by Attorney General Edward Bates in his influential 1862 Report “On Citizenship,” prima facie citizenship treats birth in the United States as establishing a presumption of citizenship. That presumption may be overcome, however, by positive evidence that the child was born into a familial context of refused or counter-allegiance to the United States.

Although, the framers of the Fourteenth Amendment emphasized the need to establish a race-neutral definition of birth citizenship, they also understood the need to exclude those persons born into families that either refused allegiance or held a counter-allegiance to the United States. Accordingly, and after much debate, they drafted a clause requiring a person to be born in, and subject to the jurisdiction of, the United States. The first condition involves place, the second involves personal allegiance. As framer Lyman Trumbull explained, “what do we mean by ‘subject to the jurisdiction of the United States?’ Not owing allegiance to anybody else. That is what it means.” 

This essay investigates the antebellum history of natural born citizenship and the dual requirements of birth and allegiance. It then explores how antebellum ideas informed the drafting and public understanding of the Citizenship Clause of the Fourteenth Amendment. It concludes by constructing a prima facie theory of citizenship consistent with the text and its original understanding and applying that theory to different scenarios involving children born in the United States. Among other things, I conclude that the best reading and application of the Citizenship Clause makes citizens of children born to non-citizens legally present in the United States, but not those whose parents entered the country without legal authorization. 

Eric Segall Poses an Originalism Hypothetical (and my Answer)Michael Ramsey

At Dorf on Law; Eric Segall: Foolish Fixations and Useless Originalism.  From the introduction: 

[T]here is strong consensus among originalists of all stripes that there are two propositions they share and that form the bedrock for all originalist theories. In the words of Professor Lawrence Solum: "Almost every version of originalism claims that the communicative content of the constitutional text is fixed at the time each provision is framed and ratified and that contemporary constitutional practice should be constrained by this fixed original meaning (unless the text is amended)."

Similarly, Professors Randy Barnett and Evan Bernick have written  that "originalists hold that: (1) the meaning of a provision of the Constitution was fixed at the time it was enacted... and (2) that fixed meaning ought to constrain constitutional decisionmakers today." 

Virtually all originalists share these views which collectively are called "The Fixation Thesis." [Ed.: Agreed.]

But here is the problem: this basis for all originalist theory, the glue that holds the diverse elements together, the concepts that virtually all originalists agree are correct, are, in reality, completely irrelevant to how judges actually decide cases or even should decide cases. The "Fixation Thesis" should be discarded by everyone who wants to have a serious discussion about constitutional law.

Here's the supposedly devastating hypothetical:

Imagine a new 28th Amendment. ... [I]t reads as follows:

"Congress Shall Make No Law Abridging the Right to Vote"

... One hundred years from now, Georgia passes a law requiring all voters in the state to show their newly invented identity thumbs before they can vote. An identity thumb is a small device given to all people born in America (other than children of diplomats and invaders) shortly after birth. It is implanted into the thumb and serves as a permanent marker of identification and citizenship.

Of course, sometimes the thumb is implanted incorrectly or forgotten altogether so the system is far from foolproof. A lawsuit is filed challenging Georgia's thumb identity requirement under the 28th  Amendment. There is ample precedent on the subject that "no" does not and cannot mean "no," and that restrictions that make voting harder must be grounded in "compelling governmental interests."

The Fixation Thesis teaches us that the original meaning of the text is binding when it is ascertainable but the expectations of the people at the time can be discarded if based on facts that are no longer true or believed by modern judges to no longer be true. 

How would judges apply the Fixation Thesis to this 28th Amendment problem? The amendment was passed long before anyone had heard of identity thumbs. Was the meaning of the 28th Amendment fixed in a way that could help us decide this case? The answer is obviously no, just as inquiring what our Founding Generation thought about defamation and the internet would be an absurd line of inquiry (even using loose analogical reasoning). 

But wait, it turns out that the generation that ratified the 28th Amendment did have discussions about giving everyone some form of universal identification. In fact, we have records of people before, during, and after ratification debating the pros and cons of that exact question (although of course none involved the permanent, painless, and 98% effective identity thumb). 

It turns out that people 100 years before this case were divided on the question. Some pro-universal identity card folks argued that universal ID would lead to a more egalitarian system of voting, while others were worried the card could be forged and lead to fraud, while still others didn't believe in universal suffrage at all. There was obviously no discussion of the type of technology that exists now (100 years later).

It should be obvious that the Fixation Thesis is no help at all. There is no original meaning that can helpfully shed light on the benefits and detriments of this new technology. There is no "fixed meaning" on the question because, as Barnett, Solum, Wurman, and most originalists seem to accept, applications, not meanings, drive constitutional litigation, and we have no idea how people living 100 years ago would have applied the 28th Amendment to technology they could not have anticipated. 

Here's my response to the main question (the post adds some variations but I'll leave those aside).

(1) Originalists will ask: what is the fixed meaning of the 28th Amendment? To begin, it appears on its face to be absolute, allowing no restrictions on voting, but every system of voting that has ever existed has included (1) limits on who is eligible to vote, and (2) reasonable requirements to demonstrate eligibility.  So we can begin by saying that the original (fixed) meaning of the Amendment acknowledged these basic limitations, because it refers to "the right to vote" -- a right that, at the time, had these qualifications.

(2) As to eligibility, the hypothetical is a little cryptic on this, but I assume its law encompasses a requirement that voters be U.S. citizens (based on the birth requirement).  We can say with a high degree of confidence that the original meaning encompassed this limitation as well, because at the time the Amendment was adopted only citizens were allowed to vote.  Of course, it is not always obvious whether an enactment should be understood to endorse or overturn existing limitations.  But here there is no context given that would suggest a goal of overturning the citizenship limit on voting.  That would be a radical change to the existing system, and the enactment should not be read to accomplish such a change without some context supporting it.  So we will conclude that the apparently comprehensive rule in the Amendment in fact was understood to protect only voting by citizens. 

(3) As to the requirement of the "identity thumb" to prove citizenship, the question again is whether that abridges the "right to vote" as commonly understood at the time  The facts state that at the time of enactment there was some disagreement whether there should be some form of universal identification.  The more salient point, though, is whether at the time of enactment some roughly equivalent requirement of voter identification was permissible as a condition of voting.  The hypothetical facts don't address this, but in real life the Supreme Court has upheld voter identification laws by the states.  So on this basis, at the time of enactment the "right to vote" would not include freedom from reasonable voter identification laws. Again, if context from the time indicated a broadly shared goal to overturn this rule, that would be a different matter, but the facts given do not show a broadly shared goal -- only that some people were uncomfortable with a universal form of identification.  Thus we can conclude that that the apparently comprehensive rule in the Amendment in fact was understood to be subject to reasonable requirements to demonstrate eligibility.

(4) In sum, then, the fixed meaning of the Amendment is that laws restricting voting to citizens and requiring reasonable proof of eligibility are consistent with its original meaning.  Now we apply that fixed meaning to the challenged law.  (I'm ignoring here the fact that the Amendment is addressed only to Congress while the law is a state law -- it's not a very interesting hypothetical if the answer is just that the Amendment doesn't restrict the states, so I'll assume it does.  I don't see how this wrinkle affects the basic question of how originalism would approach the matter: obviously the question would be whether there is some original context, or some other part of the Constitution, that would indicate that the Amendment applies to the states despite its text.)

(5) Applying the fixed meaning to the hypothetical law, first the (implicit) limitation of voting to citizens is clearly constitutional, as part of the meaning understood at the time of enactment (since at the time of enactment, and presumably after the enactment as well,  voting was reserved to citizens).  Second, of course people at the time of enactment didn't have a specific intent regarding "identify thumbs," which hadn't been invented.  But that isn't an obstacle to applying the fixed meaning.  As argued above, the (fixed) original meaning encompassed reasonable limitations to show eligibility, including voter identification laws (assuming they were thought constitutional at the time of enactment).  The hypothetical identity thumbs are a close analogy to practices thought constitutional at the time of enactment.  That strongly suggests that they do not violate the original meaning.

Again, on different facts -- if voter identification laws were not accepted practice at the time of enactment, or if context indicated a goal of radically changing existing practice, we would reach different conclusions about the fixed original meaning.  But that would not undermine the interpretive approach of fixed meaning -- it would just show that in the particular case, there was a different fixed meaning.

(6) In sum, there is a fixed meaning solution to the hypothetical, and none of it turns on living-constitutionalism-style analysis.  The fixed meaning of the "right to vote" included limitations on eligibility (only citizens may vote) and reasonable requirements to show eligibility (including generally available methods of voter identification). I'm not sure why Professor Segall thinks this is a hard question.

Tom Hickey: How to Interpret the Irish ConstitutionMichael Ramsey

Tom Hickey (Dublin City University) has posted How to Interpret the Irish Constitution: Tomas Heneghan v Minister for Housing ((2024) (6) Irish Supreme Court Review 53-79) (23 pages) on SSRN.  Here is the abstract:

This paper explores the judgment of Murray J in the Tomas Heneghan case as it pertains to 'constitutional interpretation'. Specifically, it looks at how and why Murray J endorses the Henchy J 'harmonious' or 'spirit-based' approach, in apparent preference to the more 'formalist' or 'literalist' approach of O'Higgins CJ. 

And from the introduction (footnotes omitted):

Over the longer haul, the significance of Murray J’s majority judgment in Tomás Heneghan v Minister for Housing will likely be more for what it says about how judges are to approach the interpretation of the Irish Constitution than for the changes it demanded would be made to the electoral franchise in respect of the six ‘University seats’ in the Seanad. Murray J emphasises the fundamental importance of ‘context’ and ‘purpose’ in constitutional interpretation. The wording of this or that provision may on the face of it appear unambiguous, and to have crystal clear implications. But there is ‘no case’, says Murray J, ‘and no provision – no matter how clear it may be – in which it is other than appropriate to understand and have regard to the overall context in which that provision was adopted’. And he prefers the ‘harmonious’ and broadly ‘spirit-based’ approach to constitutional interpretation – as Henchy J had in his dissenting judgment in People (DPP) v O’Shea (ie where O’Higgins CJ, in a majority judgment in that case, had insisted that ‘plain words … must be given their plain meaning’). Indeed, Murray J – on the face of it – could hardly have been more emphatic on the point: ‘I do not believe that Henchy J’s analysis can or should now be seriously questioned as the authoritative explanation of how a court should view any issue of interpretation by any Article of the Constitution.

(Via Larry Solum at Legal Theory Blog, who says: "Fascinating discussion, with echoes of the American debates over originalism and living constitutionalism. Recommended.")

I think most originalists (even most textualist originalists) would not object to looking at "context and purpose," even with respect to an apparently clear provision, to be sure there's no hidden ambiguity.  The question is what an interpreter does with the "context and purpose" -- is it used to understand what the original meaning of the provision actually was, or is it used to go off in some different direction from the one the text indicates?

 

Are Bipartisan Commissions Constitutional? Mike Rappaport

President Trump has fired two of the Democratic members of the FTC.  While the removal restrictions have been widely discussed and may be struck down, a separate question is whether the bipartisan provision of the FTC Act -- requiring the commission to be composed of members from different political parties -- is constitutional.  This will become an issue if the President seeks to nominate and the Senate to confirm persons who would violate the bipartisan requirement. 

One could easily imagine the FTC or other commissions being subject to plenary removal authority by the President but still having to be composed of members from different political parties.  In fact, there is a reasonable argument that this bipartisanship requirement is desirable, since it requires members of the other political party to be on the inside of the agency.  These members could blow the whistle on wrongdoing by the agency.  These members would also promote deliberation.  See here where I argue for the desirability of this arrangement. 

But are such bipartisan requirements constitutional?  It is not clear.  One might conclude that they infringe on the appointment authority of the President (and the Senate).  It is for the President (and the Senate) to determine who is fit to serve on these commissions. 

Alternatively, one might argue that Congress's power to define the office also permits it to include reasonable qualifications for the office, such as being learned in the law for the solicitor general.  These qualifications would have to be related to the job and be general in form.  Being a member of a political party likely fits this reasonable qualification requirement. 

In the end, deciding between these two positions based on the original meaning is likely to turn on both a significant inquiry into the history and a more refined analysis.   

Marbury v. Madison and the Alien Enemies ActMichael Ramsey

At his substack "Executive Functions," Jack Goldsmith considers the issues relating to the President's invocation of the Alien Enemies Act against the Venezuelan gang Tren de Aragua (TdA).  (Via Jonathan Adler and Volokh Conspiracy.) He begins with the heading "The Alien Enemies Act Issue on the Merits Is Not Simple" -- and then gives an admirably simple summary of the issues, which he sees as three: (1) "is TdA perpetrating, attempting, or threatening an invasion or predatory incursion against the territory of the United States within the meaning of the AEA?"; (2) "whether the incursion (if it is that) 'is perpetrated, attempted, or threatened against the territory of the United States by [a] foreign nation or government'”; and (3) what is "the scope of judicial review?"

I'm going to try to answer these (especially the third) by reference to Marbury v. Madison, which I think is a good starting point, at least, for an originalist analysis.  Marbury, of course, expressed the idea of judicial review, but it is also the foundation of the nineteenth-century version of the political question doctrine -- a much more defensible version than some modern versions.  Marbury says:

By the Constitution of the United States, the President is invested with certain important political powers, in the exercise of which he is to use his own discretion, and is accountable only to his country in his political character and to his own conscience. To aid him in the performance of these duties, he is authorized to appoint certain officers, who act by his authority and in conformity with his orders.In such cases, their acts are his acts; and whatever opinion may be entertained of the manner in which executive discretion may be used, still there exists, and can exist, no power to control that discretion. The subjects are political. They respect the nation, not individual rights, and, being entrusted to the Executive, the decision of the Executive is conclusive.

And later:

The province of the Court is solely to decide on the rights of individuals, not to inquire how the Executive or Executive officers perform duties in which they have a discretion. Questions, in their nature political or which are, by the Constitution and laws, submitted to the Executive, can never be made in this court.

As to Professor Goldsmith's questions --

(1) Whether there is "an invasion or predatory incursion against the territory of the United States within the meaning of the AEA?"  This seems like a straightforward question of law and facts that is within the courts' judicial power.  It is not a matter of executive discretion within Marbury's meaning; it's just a question of what the statute means and what evidence the President has offered taht the relevant event has occurred.  (On the merits, the President's argument seems fairly strong here; at least as I understand TdA's activities, they seem reasonably described as a "predatory incursion.")

(2) Whether the incursion "is perpetrated, attempted, or threatened against the territory of the United States by [a] foreign nation or government”?  Professor Goldsmith says this one is "hardest for the government," but I also think it is the one most encompassed by Marbury's idea of a political question.  Professor Goldsmith explains:

The proclamation states that TdA “is closely aligned with, and indeed has infiltrated,” the “regime” of Venezuela’s president, Nicolás Maduro, and is part of a “hybrid criminal state,” whatever that means. A brief on appeal says that TdA is so “intertwined” in “Venezuela’s state structures,” that it is “a de facto arm of the Maduro regime.” It adds, as an “independent rationale,” that TdA is “a de facto government in the areas in which it is operating.”

I do not think one can know for sure at this stage how this issue should be resolved. The administration's factual basis for its claims have been thin. Yet there are many contexts in domestic and international law where “private” individuals or organizations are deemed to be an arm of the government or state, and the president has the exclusive power to recognize states or governments. The test for whether an action is “by [a] foreign nation or government” under the AEA is, I believe, one of first impression, and will depend on the proper legal framework (there are a few possibilities), and more factual development.

I think this is right as far as it goes, but for me the key consideration is this: the extent of the Maduro government's responsibility for TdA is not merely a legal and factual question.  It is also a matter of U.S. foreign policy -- to what extent does the United States want to hold the Maduro government responsible for TdA?  As a result, the decision comes within Marbury's idea of executive discretion.  The United States has discretion as to how much to view TdA as an arm of the Venezuelan government for foreign policy purposes.  Various foreign policy implications flow from doing so or not doing so.  And the President, who has executive power to conduct U.S. foreign affairs, is the branch of government charged by the Constitution with making that discretionary determination.  Marbury's direction, then, is that courts are not an appropriate forum to review that decision.

(3) Thus my answer to Professor Goldsmith's third question -- the scope of judicial review -- depends on what determination is being reviewed.  As to the presence (or not) of a "predatory incursion," I think that is the sort of question courts can review, because it does not involve substantial foreign policy discretion.  As to the responsibility of the Maduro government for TdA, that is a much more policy-sensitive determination which seems more infused with executive discretion, and thus less suitable for courts.

Finally, although it's outside the scope of Professor Goldsmith's essay, there is a fourth issue: whether, as to any individual deportee, that person is in fact a member of TdA.  That point is critical to the President's authority over any particular individual under the Alien Enemies Act, by the terms of the President's executive order.  And that question seems to be a judicial question -- again, a question of law and (especially) fact, not a question of executive discretion.  (And further, as Ilya Somin argues here, it would appear to have constitutional foundations as a judicial power under the due process clause.)  And it is most firmly within Marbury's idea of the courts as protecting the "right so individuals."

In sum, the implications of this assessment appear to be (1) the question whether TdA is involved in a "predatory incursion" under the statute is best understood as a judicial question (but the President seems on strong ground in finding such an incursion);  (2) the question of the relationship between TdA and the Maduro government, while an element of the statute, seems best understood as a matter of executive foreign policy discretion; and (3) while the first two points together give a plausible defense of the President invoking the statute against TdA, any individual target should have the ability (indeed, likely a constitutional right) to contest that person's membership in TdA -- as a judicial question.

Laurence Claus: The Law of Constitutional CaptureMichael Ramsey

Laurence Claus (University of San Diego School of Law) has posted The Law of Constitutional Capture (19 Vienna Journal on International Constitutional Law (forthcoming 2025)) (48 pages) on SSRN.  Here is the abstract:

Constitutional capture is commonplace in the world today. A government that was built to be for the common good, the public interest, is rebuilt from the inside to become a government for the interests and preoccupations of the leadership. That leadership finds ways to keep governing a people while ceasing to be truly accountable to those people. This article identifies and explains the deep legal mechanisms at work in constitutional capture. In doing so, the article finds a way to rescue our endangered democracies that has been overlooked in contemporary scholarship.

A substantial interdisciplinary literature has recognized that singular leadership stabilizes tyrannies. Having one person as chief executive is the natural, equilibrium form of tyranny, to which tyrannies by committee, such as military juntas, tend to move. The existing literature on democratic erosion and constitutional capture has not recognized that singular leadership destabilizes democracies. Having one person as chief executive is democracy’s Achilles heel, the structural feature most responsible for democratic erosion and constitutional capture. Legal systems grow from converging expectations that singular leaders are uniquely situated to shift. This article explains how having one true leader poses its unique threat to constitutional democracy and why formal checks and balances by legislatures and courts are insufficient to neutralize this threat. The article identifies constitutional alternatives that avoid this danger and have been proven by comparative constitutional experience to let constitutional democracy thrive.

The President's Power to Respond to Attacks by the HouthisMichael Ramsey

Somewhat lost among other news, the President has apparently directed substantial military action against the Houthi militia in Yemen.  Although I have a more limited view of the President's power to conduct hostilities than some scholars (see here), I think this action is within the President's power.

I assume for this analysis that directing hostilities against a non-state actor such as the Houthis constitutes "war" for constitutional purposes, and thus is potentially limited by the Constitution's assignment of the declare-war power to Congress.  (I'm not entirely sure this is correct: I took this position in the article linked above but I have come to somewhat doubt it.  If this is not correct, then the President's power is not limited by the declare war clause, and is presumably within his commander-in-chief power.)

The declare war clause would (on this assumption) prevent the President from initiating hostilities against the Houthis.  But as I understand the facts, the Houthis have been systematically attacking U.S. shipping, including U.S. naval vessels, in the Red Sea for some time.  As a result, the situation is properly understood as the Houthis initiating war against the United States, prompting a U.S. response.

It's widely agreed that the President can direct at least some military response to attacks on the United States, including (at least) attacks on U.S. military forces.  The more difficult constitutional question is why this is so.  (It's true that Madison said so at the Philadelphia Convention, but that doesn't make it right or explain why it is right.)  Alexander Hamilton had an explanation that I find persuasive, as I describe in The President's Power to Respond to Attacks.  Writing in response to the Tripoli conflict in 1801, Hamilton reasoned as follows: if a foreign power attacks the United States, that action declares war.  The President's action in response to that attach is thus taken within the context of an existing war; it does not declare war itself.  Hence, a presidential response does not infringe Congress' declare-war power, and is authorized by the President's commander-in-chief power.

Thinking about the declare-war power this way helps resolve the next constitutional question, which is critical in the Houthi situation.  Again, it's widely assumed that the President can direct a response to attacks at least to the extent of defending against the attacks.  But can the President go further and order the military to take the offensive against the attackers, as it appears the President has done regarding the Houthis?  Hamilton's answer was yes (in the analogous situation with Tripoli) because once war is begun by the other side, the declare war clause does not limit the President's ability to respond, and the commander in chief power allows the President to take military action the President thinks is necessary.  On that reading of the clauses, the action against the Houthis -- even very substantial counteroffensive action -- is constitutional.