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Posts related to Constitutional law and related issues

"The amendment would hold that the rights protected by the Constitution are enjoyed only by individuals acting individually"

"...individuals acting in collaboration with others would be stripped of those rights."

The obvious consequences of a rather ill-conceived amendment to respond to Citizens United. Needless to say, unless the reading of this amendmen is incorrect, this is a really, really, really bad idea. This is the sort of misshapen monstrosity that could only cme from hasty thinking and unchecked passion. The crew at NRO have framed this in terms of a left-wing power grab in order to silence conservative dissent from the government, but I'm not prepared to lay that intent on the authors of this thing, as it is no doubt an attempt to fix a problem with a cure worse than the disease. The thing is, this would help to create that sort of arrangement, and would in fact leave all political speech subject to regulation.

I'm with NRO on this one--this is bad stuff, and most likely won't go anywhere. The commenters over there are convinced this is proof of the grand leftist conspiracy to crush American liberty. It's all straw man logic I know, but this does make it harder to dispel that fear with stuff like this coming down the pike.

The First Amendment's fine the way it is, folks. Let it be.

AND: The text:

Section 1. We the people who ordain and establish this Constitution intend the rights protected by this Constitution to be the rights of natural persons.

Section 2. People, person, or persons as used in this Constitution does not include corporations, limited liability companies or other corporate entities established by the laws of any state, the United States, or any foreign state, and such corporate entities are subject to such regulation as the people, through their elected state and federal representatives, deem reasonable and are otherwise consistent with the powers of Congress and the States under this Constitution.

Section 3. Nothing contained herein shall be construed to limit the people's rights of freedom of speech, freedom of the press, free exercise of religion, and such other rights of the people, which rights are inalienable.

At first glance, it doesn't sound menacing, but a closer look reveals a glaring problem: Clause 2 appears to cancel out Clauses 1 and 3, because if Clause 2 limits the speech of corporations in such way that lines up with the opposition to Citizens United, then Clauses 1 and 3 are negated. If this isn't so, then this whole thing collapses on itself, and renders it symbolic and toothless. It's entirely possible that they've crerate a symbolic non-measure--either way this looks to be ill-conceived out of the gate.

The House contingency, redux

Martin Frost has this op/ed about the prospect of third parties and House contingency elections; I think my 2007 piece on the same remains relevant.

Letter to the editor on the recess crisis

The following was sent as a letter to the editor for our local paper. This is a footnoted, annotated version, since I can digress here without a word limit.


Last week, President Obama claimed the power to make recess appointments even though the Senate is not in recess.1 He can do this, he argues, because he has determined that the Senate's session is a sham—that it's effectively in recess even though it's formally in session. While there’s a long-running debate over how long the Senate must be out before the President’s recess appointment power kicks in, no one has ever doubted that the clock must have begun ticking at some point with the beginning of a recess, so this is something new.

The fundamental question is: Who gets to decide when the Senate is in recess?2 While the obvious answer would be that Congress does, President Obama says that he will decide. We should consider the implications for checks and balances.

The Constitution's ordinary appointment process reflects two judgments: That the Presidency is the best place to lodge the appointment power, yet this authority must be constrained, as Hamilton explains in Federalist 76. Thus, in this ordinary process, a President cannot unilaterally make appointments over the objections of the Senate. Balance checks power.

The Constitution also supplies an extraordinary appointment process,3 which (to oversimplify slightly) allows the President to make "temporary" appointments while the Senate is recessed.4 But this authority, too, is hedged. Congress can forestall recess appointments simply by not recessing, by remaining in session.5 Thus, even in this extraordinary process, we might say that a President cannot make truly unilateral appointments over the objections of the Senate. Balance again checks power.

By contrast, the power asserted by the President last week is balanced against nothing; it is checked by nothing.

Some Democrats have cheered the President for "showing some spine," but they have not thought through the implications of the radical principle underlying his appointments. The President’s fundamental assertion is not that the Senate session is a sham; that's derivative. His fundamental (if tacit) assertion that he gets to make that call. It is that the President has unilateral authority to say when his appointment power is unilateral rather than being checked by any other Constitutional actor. That theory should raise your eyebrows; if the President can determine that Congress is not in session today, nothing intrinsic to the theory prevents him from determining that Congress is not in session at any other time.6 Would the Democrats who have cheered for these appointments out of immediate political convenience feel happy waking up in a few years to the news that, overnight, President [insert whatever name scares you most] determined that the Senate was in recess and handed out recess appointments for every vacancy in the administration?

Perhaps that hypothetical sounds absurd. It is—or should be. But the authority claimed by the President opens the door to that result, and when a principle leads to absurd results, we should look at it with skepticism. When it also suggests that a system designed to check every power with balance nevertheless affords unilateral authority, we should look even more closely.7

Candidly: Is your life likely to be materially affected if the Senate's check on Presidential appointments withers? No.8 But anyone who cares about our Constitution (and certainly anyone whose blood pressure rose when executive power was mentioned during the Bush administration) should be alarmed, because this is a radical assertion of power, one that is at war with the Constitution's system of checks and balances and likely to be abused.

  1. 1. The original and second drafts of this letter contained the following preface: "I believe that the modern understanding of the recess appointments clause—which holds that Presidents may fill all vacancies that exist during a Senate recess rather than only those that happen to arise—is wrong. But for sake of argument, let's assume it's correct. By that standard, President Bush's recess appointments were okay, and, in principle, so too would be a recess appointment by President Obama to fill the vacant Directorship of the USCFPB." I am indebted to a number of people for their helpful suggestions during the drafting process, one of which was to excise this paragraph.
  2. 2. A sentence was cut here moments before this piece left the kitchen: "Seen this way, the authority asserted by the President is far more radical (and thus far more likely to escape the constraints of the immediate situation) than it might appear." I thought it was helpful, but in the end it punched below its weight and it had to go.
  3. 3. One that reflects, we should note, the practical constraints of eighteenth century travel rather than a principle.
  4. 4. Again, I add the disclaimer that I have stipulated for sake of argument that the clause authorizes "exist" appointments not just "arise" vacancies. New arrivals will find my post here useful on that point. Also: Why the scare quotes around "temporary"? Because the "temporary" appointment lasts until the end of the Senate's next session. The casual observer will note that while "temporary" isn't a misnomer, we're certainly talking something more than a stopgap appointment; it could theoretically last a couple of years. The less casual observer will wonder why, if the President has the authority to say that the Senate's session has ended, and thus to make appointments, he doesn't have symmetrical authority to say that the Senate's session has not ended, and thus to prolong them?
  5. 5. Note the shift in language here. There's no time or need to explain in this piece the wrinkle that I'm driving at, but I'll simply note here that it requires Congressional opposition to Presidential appointments, not simply that of the Senate, because the House can give the President authority to adjourn Congress by creating disagreement over the adjournment date. See Art. II, § 3. That would create a bit of a crisis in itself, of course, because then we would have to definitively settle questions about the meanings of "recess" and "adjournment" so far as the recess appointments clause is concerned.
  6. 6. Elsewhere I have called this assertion "unlimited and illimitable"; in a setting where I can't explain myself, it sounded like hyperbole so it had to go, but I stand by the remark.
  7. 7. Cf. Federalist 51 (Madison). I do not, of course, mean to imply that the Constitution is airtight.
  8. 8. A few words about the withering effect, by the way, because it may not be obvious. People are apt to get more excited about Constitutional abuses that they can imagine affecting them, no matter how implausible—military detentions and the like. This is entirely more subtle. We must realize that the power asserted by President Obama is very likely to be used; people talk about the President's supposed authority to militarily detain people, but it's just exceptionally unlikely that a President would ever do such a thing. Bypassing Congress to install an officer in the face of Congressional opposition, however, seems very likely to happen, and to happen often. So this is a subversive claim of authority. It seems likely to fly under the radar and that criticism will be dismissed as partisanship. It's the kind of thing that doesn't get too much public notice because, as Doug pointed out the other day, the public often doesn't care much about process issues. It's the kind of thing that burrows into the praxis of politics—exceptional today, common in twenty years, and before you know it it's become routine and Congressional consent is simply a formality because everyone knows that if Congress slow-walks the appointment the President will simply give recess appointments.
    That's what I mean by the Senate's check withering: The President's unilateral appointments will become more frequent, that's the direct effect, but the indirect effect is to change Congress' incentives, reducing the benefit of resisting a given nominee. Indeed, I see the very real potential for this approach to become the usual way of doing business for hundreds of lower-level Presidential appointees, especially those who aren't expected to stay on longer than a year or two anyway—why even take up the Senate's time? You wouldn't think such a thing was possible, but today it's standard practice after a century of abuse to give recess appointments for positions that were vacant before the Senate recessed. This is the thin end of the wedge.

(Notes on) The limits of the impeachment power

N.b.! The following is not a complete post. It contains the opening parts of the first draft of a post that I was writing in January 2009; it never came close to being finished, and the moment for it passed. It's languished for years in the drafts pile. What's more, I do not now either endorse or repudiate the argument that I was seeking to make, which you can see in outline (the more skeletal parts never made it off the blotter, so there's some holes and the end is completely missing).

So why publish now, almost three years later, and why in this state? Well, a lot of research went into it, and I think there's some valuable material in here that pertains generally to impeachment. Over the last couple of years, I've strip-mined this draft for its research time and again when impeachment issues have come up. For that reason, and since impeachment may become a hot topic again in the coming weeks, I thought that I'd share it "as is."

The limits of the impeachment power

"a hundred-ton gun which needs complex machinery to bring into position, an enormous charge to fire it, and a large mark to aim at." - Lord Bryce, on impeachment.1

Via Prof. Jacobson, I see that Bruce Ackerman is arguing that Judge Bybee should be impeached because of advice he gave while serving at OLC prior to his nomination to the bench. If the Senate had known about that advice, Ackerman charges, it would never have confirmed his appointment to the Ninth Circuit, and impeachment is warranted because it would “focus[] on a very particular problem: Jay Bybee may serve for decades on one of the highest courts in the land. Is his continued service consistent with his role in the systematic perpetration of war crimes?”

That may be a good question, but I want to suggest it was a passenger on a ship that has vanished over the horizon, one that cannot now be called back through impeachment. Assuming that Bybee could be impeached for his conduct at OLC, and assuming that Congress can impeach an officer even after their resignation (historically a hotly contested point), Bybee could be impeached and barred from future appointments, but could not be be removed from his present office on the basis of impeachment qua an OLC officer or impeached qua a judge for his conduct at OLC. Text, history, and practice are all strongly suggestive of this conclusion.

  1. 1. 1 James Bryce, The American Commonwealth 212 (1914).

"We the People..."

North Dakota isn't a state

Wait, what? Time says that a "constitutional error recently discovered shows that North Dakota has never technically fit the requirements for statehood [because of] … the state constitution's omission in requiring the governor and other top officials to take an oath of office. In failing to require these oaths, North Dakota's constitution is at odds with federal requirements established by Article VI of the U.S. Constitution, therefore making statehood illegitimate."

Wait, what? If I'm understanding correctly, the argument is that if North Dakota's constitution doesn't require an oath, therefore its statehood is illegitimate. How does that follow? Yes, Article VI requires that "Officers … of the several States[] shall be bound by Oath or Affirmation, to support [the Federal] Constitution," but how do you get from there to "a state that doesn't oblige its officers to take said oath is not a valid member of the Union"? That makes no sense.

"Nobody should be signing bills for the president, not even when the president orders them to do so."

Yeah. Makes sense to me. Seems we ought to nip this practice (to the extent that it is a practice) in the bud, before things start to get real messy. I'm not an expert on the specific details, and it does seem clear that the intent was to approve the signature, but there is the "shall be presented" clause. Could you argue that presenting over the phone is sufficient? Any thoughts?

On a side note, this does seem to be one of those issues tailor-made for Obama's critics to freak out over, and yet could've been so easily avoided, by simply waiting a few more days.

ADDED: Or maybe not.

Ezell v. Chicago

Prof. Kopel has a good summary of Ezell v. Chicago, an important Second Amendment case--one that I'm still digesting--from SF favorite Judge Sykes' pen. Be sure to check it out.

S.679 and the appointment of inferior officers

There is something of an online fuss underway about S.679, a bill which would waive Senate confirmation for a number of Presidential appointments. The Heritage Foundation has a relatively sober analysis here, but it was Terresa Monroe-Hamilton who really lit a fire under the issue with this post. We are told that the bill appoints Caesar; it does not. We are told that the President’s hand “is quickly forming into a dictatorial fist that is about to smash our Constitution”; it is not. I conclude that with three exceptions and five borderline cases (out of more than a hundred positions affected), the bill does not raise constitutional difficulties.

Unfortunately, it inevitably takes far less time and effort to fling mud than to clean it up, so you should settle in for what will be a lengthy and tedious post.

"Bloomberg has the Mr. Moderation act, but underneath it, perhaps he's out of his mind. "


There aren't enough words to describe how insane this is, but what does everybody think?

Two interesting sovereign immunity cases in two days

After a fallow few years, it's sovereign immunity week at the Supreme Court. Yesterday, the court handed down Virginia OPA v. Stewart (per Justice Scalia, Ex parte Young allows a suit between two state governmental entities; more about that case later in the week), and today, we get Sossamon v. Texas (per Justice Thomas, states do not waive sovereign immunity if they accept federal money for the program at issue).

Did we jump the gun?

In a candid and carefully-worded post, Patterico argues that we all jumped the gun on H.R. 1255; his earlier post is here and mine is here; his collects some more blogosphere reaction, most of it critical.

The gist of his new post is that the House didn't do something novel and ludicrous: It did something uncommon (but done) in an unusual way. He points to several examples of bills that "incorporate by reference" other bills,1 which we'll call "IBR." What throws us off—what is new—is the "triggering" clause:

If the House has not received a message from the Senate before April 6, 2011, stating that it has passed a measure providing for the appropriations for the departments and agencies of the Government for the remainder of fiscal year 2011, [then] the provisions of H.R. 1, as passed by the House on February 19, 2011, are hereby enacted into law.

That kind of conditional language is alarming, calling to mind the legislative veto thrown out by the Supreme Court in INS v. Chadha. But we shouldn't be deceived, argues Patterico:

We all know that, absent a veto override, a bill must be passed by the House and Senate and signed by the president to become law. But the final language must read as though it is a law — because, once it goes through the process, it will be. So there is nothing odd at all about a bill having language to the effect “is hereby enacted into law.” … The Senate will still have to pass this bill. The president will still have to sign it. There is nothing unconstitutional about that.

On a brief search, the literature on this seems exceedingly sparse, dominated by the case cited by Patterico's correspondent, Hershey Foods Corp. v. U.S. Department of Agriculture.2 Hershey began with Congress' decision to promote a DoA milk regulation to the force of statute law. But the manner in which it passed a bill doing this, H.R. 3428, was unusual: The Consolidated Appropriations Act,3 H.R. 3194 as amended, "provide[d] that H.R. 3428 … is hereby enacted into law."4 Hershey sued, arguing (inter alia) that "in order to comply with the Presentment Clause, the entire text of a purported law must be voted on by both houses of Congress and presented to the President," lest the President's need to collate the cross-referenced bills "undermine" his opportunity to consider the legislation.5 You could call theory this the "whole bill" rule (perhaps the "whole milk rule" would be more apt given the plaintiff): Congress must vote on, and present to the President, the actual text it wants to enact, not a catalog of texts.

Despite its lustrous appeal at first blush, a "whole bill" rule has obvious flaws. Giant omnibus bills also undermine the President's ability to consider bills within the ten-day window; are they unconstitutional? How do you draw the line? In any event, the district court didn't buy it (partly because the amorphous nature of the inquiry pushed it into political question land, but mainly because, in the last analysis, the President signed the same bill passed by both houses, and presentment requires no more), and the plaintiffs abandoned the constitutional claims on appeal. The district court added:

Laws containing cross-references do not appear to be uncommon. While no case has addressed the Presentment Clause challenge, several courts have upheld laws containing cross-references. See e.g., United States v. Sharpnack, 355 U.S. 286 (1958) ("Whether Congress sets forth the assimilated laws in full or assimilates them by reference, the result is as definite and as ascertainable as are the state laws themselves."); United States v. Menominee Indian Tribe of Wisconsin, 694 F. Supp. 1373, 1375 (E.D. Wis. 1988) ("It is well established that Congress may incorporate by reference state criminal laws in federal criminal statutes."); Robertson v. Seattle Audubon Soc'y, 503 U.S. 429, 433 n.1 (1992)(involving an appropriations act in which Congress incorporated by reference, among other things, a list of spotted owl habitat areas contained in a Forest Service environmental impact statement).6

Congress, the Court concluded, "may incorporate by cross-reference in its bills if it chooses to legislate in that manner. Nothing in the Presentment Clause, or elsewhere in the Constitution, demands otherwise." That was also the conclusion of Prof. Jonathan Siegel, a year before Hershey:

[A different] act expressly gives legal force to legislative materials that do not meet the requirements of bicameralism and presentment. The act "enacts into law" various previously-existing bills, each of which had been introduced in one house of Congress, but had not been passed even by that house, much less by both houses with presentment to the President. Yet the act obviously does not violate the rule against congressional self-aggrandizement. Through incorporation by reference, both houses of Congress approved the incorporated bills as fully as if they had been written out verbatim in the act finally passed. There was no delegation of power to the individual houses of Congress; rather, the full Congress adopted as its own certain work previously done in its individual houses. … Congress's incorporation by reference of specific, pre-existing texts is thus perfectly constitutional….7

And somewhat more critically, noting the "hasty and unusual method" by which nine bills were rolled into one enactment, Prof. John Duffy observed that "Such an incorporation-by-reference method of enacting law may very well be constitutional, but to put it mildly, the technique certainly does not foster full consideration of the legislation by the Members of Congress and the President," and in practice may have allowed a Constitutional problem to slip though the cracks.8

So we are left with the question: Unconstitutional or merely tasteless? Or, to put a finer point on it, if we concede that Congress may incorporate texts in legislation (a position Hershey attributes to dicta in Sharpnack, seemingly correctly) does the apparently conditional "if" clause in H.R. 1255 make any difference?

At this point, we should pause and talk about "deem and pass." They are similar insofar as IBR, like D&P, allows the House to tie together votes on two or more otherwise-independent bills, but they are dissimilar insofar as IBR wraps the bills into a single package that is voted on by both houses. I must also point out that unlike virtually everyone else on the right, I pronounced D&P "dumb but Constitutional." My argument was that the Constitution doesn't micromanage the legislative process to the extent supposed by critics; rather, it leaves Congress relatively free to decide the format and process of how it legislates. Given that permissive view of Congress' intramural authority, I ought to be right in Hershey's glidepath, and frankly, with some reservations, I am.

And yet...

And yet... Something still nags me about that conditional clause. What does it do? What does it mean? Why is it there? If the House simply intended to send the Senate a glorified reminder to get working, prodding it with a bill which the Senate can enact or not (and in so doing, sign off on HR 1), it could use the usual IBR language, an example of which is quoted in footnote one. As Patterico says, the perspective whence to consider the bill is the assumption that it has been passed by the Senate and signed by the President, in which case, the fundamental triggering event for HR1 being valid as law is not the failure of the Senate to notify the House that it has passed a budget, as 1255 asserts, but rather the valid enactment of 1255. But once this is done, there's another troubling problem: The proximate triggering event. The conditional language doesn't disappear from the bill after enactment, so we must imagine that it's April 6 and 1255 was passed: Is H.R. 1 now law? The conditional clause must be given effect! And so the answer must be "not unless the U.S. House has received a message from the Senate stating that the latter has passed a measure providing appropriations for the remainder of fiscal year 2011." But how do we tell? What is the authoritative evidence that the condition has been met and who decides? What if it gets messy—for instance, what if the Senate passed multiple measures, each of which appropriating funds for one part of the government? This is a messy and haphazard way to ensure the continued operation of our government.

The bill's ultimate effect may be Constitutional (insofar as it will either be enacted, making HR1 into law, or not, in which case the House's seeming claim to authority won't save it), but given these lingering concerns—perhaps I'm in denial—I'm not as persuaded as Patterico that our first instinct was wrong. There is something shady and smoky about the way H.R. 1255 is written. It goes beyond simply incorporating by reference: On its face it sets an if/then condition that is plainly invalid, and the only way to salvage it is by assuming that they either didn't really mean it or that they were willing to create a fog of uncertainty over whether the bill is in effect. Perhaps it was simply small-minded posturing (Hanlon's razor reminds us not to attribute to malice that which incompetence explains adequately), but I still find it troubling.

At any rate, here's the bottom line. I am happy to agree with Patterico on the more important point: If the Senate passes 1255 and the President signs it, 1255 will be valid law, including (setting aside the wrinkle of the triggering provision) the provisions of HR1 incorporated by reference.

  1. 1. One example is the Consolidated Appropriations Act for 2000:

    §1000(a) The provisions of the following bills are hereby enacted into law:

    (1) H.R. 3421 of the 106th Congress, as introduced on November 17, 1999;
    (2) H.R. 3422 of the 106th Congress, as introduced on November 17, 1999;
    (3) H.R. 3423 of the 106th Congress, as introduced on November 17, 1999;
    (4) H.R. 3424 of the 106th Congress, as introduced on November 17, 1999;
    (5) H.R. 3425 of the 106th Congress, as introduced on November 17, 1999;
    (6) H.R. 3426 of the 106th Congress, as introduced on November 17, 1999;
    (7) H.R. 3427 of the 106th Congress, as introduced on November 17, 1999, [with certain stated modifications] …
    (8) H.R. 3428 of the 106th Congress, as introduced on November 17, 1999; and
    (9) S. 1948 of the 106th Congress, as introduced on November 17, 1999.

    (b) In publishing the Act in slip form and in the United States Statutes at Large pursuant to section 112, of title 1, United States Code, the Archivist of the United States shall include after the date of approval at the end appendixes setting forth the texts of the bills referred to in subsection (a) of this section.

    Pub. L. No. 106-113 div. B, 113 Stat. 1501, 1535-36 (2000).

  2. 2. 158 F. Supp. 2d 37 (D.D.C. 2001), aff'd on other grounds, 293 F.3d 520 (D.C. Cir. 2002).
  3. 3. See n.1, supra.
  4. 4. 158 F. Supp. 2d, at 38 (internal quotation marks deleted).
  5. 5. Id., at 39; cf. Edwards v. United States, 286 U.S. 482, 486 (1932).
  6. 6. 158 F. Supp. 2d, at 41.
  7. 7. Siegel, The Use of Legislative History in a System of Separated Powers, 53 Vand. L. Rev. 1457, 1494-95 (2000).
  8. 8. Duffy, Are Administrative Patent Judges Unconstitutional?, 77 Geo. Wash. L. Rev. 904, 914-15 (2009).

In defense of President Obama's (eventual) military action in Libya

Since the UN's decision to take action on Libya, a number of liberal, libertarian, and centrist critics have said that American involvement without a declaration of war by Congress violates the Constitution, for only Congress has the power to declare war. The problem with these theories is their assumption that any military action constitutes "war."

The challenge here is that the original semantic meaning of the word "war" is extremely broad: Most founding-era dictionaries define it as the exercise of violence under sovereign command. See, e.g., Johnson's 1768; Sheridan's 1789. That definition is so broad, however (it would encompass police using billy-clubs against protesters), and the founding generation's experience of real war was so recent, that it's tough to imagine that the original understanding of the power to declare war encompassed literally any use of force—or even just any use of military force. Cf. Easterbrook, Text, History and Structure in Statutory Interpretation, 17 Harv. J. L. & Pub. Pol. 61, 67 (1994) (“a dictionary … [is] a museum of words, an historical catalogue”). This supposition is confirmed by the manner in which it was used in the early Republic. When this country declared war on Great Britain in 1812, Congress declared "that war be, and hereby is declared to exist, between the United Kingdom … and the United States…." Quoted in Story's Commentaries, § 1169. What did they mean? It couldn't be that battle was joined at that very moment; "war" clearly meant something both more and less—that is, something distinct—than actual military action. And we know that in fact, the President can use military force—can exercise violence under sovereign command—without Congressional authorization in at least two instances: to repel military invasion of the United States, and when someone else declares war on us. See Prize Cases, 67 U.S. (2 Black) 635, 668 (1862).

Against this we may stack a long line of American military action under Presidential direction without a declaration of war. If it is true that maintaining a no fly zone over Libya (or, for that matter, assisting our allies in doing so, a distinction which may or may not matter) is making war, then President Reagan was a fortiori making war when he invaded Grenada, and a fortissimus President Truman made war in Korea. Come to think of it, I don't remember President Bush 41 seeking a declaration of war for our first action against Iraq or President Clinton seeking a declaration of war for our Kosovo intervention. This history pushes the theory that any use of military force constitutes "war" for Constitutional purposes almost to the breaking point.

Perhaps I'm speaking only for myself in this, but I think that while conservatives are open to tradition being corrected by text, we're instinctively reluctant to assume—and slow to conclude—that they clash. That what might look like tension between the two at face value actually is. (On the other hand, if that's true, why aren't most conservatives also Catholics or Orthodox? But I digress.) Consequently, when I look at these factors—when I see a Constitutional term which isn't as clear as it seems at first blush, and a long tradition of Presidents using the military without Congressional approval—I'm hesitant to say that what looks on the surface like tension between what Obama is doing and what Article I requires is in fact tension. I am not convinced that the Constitution requires Congress to act before the United States can.

I have not yet said anything of the war powers act. 50 U.S.C. § 1541 reads the Constitution broadly to require the "collective judgment of both the Congress and the President" before "the introduction of United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, and to the continued use of such forces in hostilities or in such situations." If the Constitution doesn't confine the President, perhaps this does? No. The original meaning of "the executive power," bolstered by the commander-in-chief power, suggests to me that the President has the power to undertake military actions short of the original understanding of "war," and if this is so, the War Powers Act would unconstitutionally abridge that power—a point urged by everyone from scholars to Presidents since the day it passed. The executive power understood by the Framers included all aspects of waging war, see Story, Commentaries, § 1165, and the Framers chose to divide that power by giving the power to declare war to Congress. The implication must be that the remainder of that power remained in the executive.

Moreover, at risk of seeming blasé, I think the practical stakes are particularly low in this case. Congress is actively deliberating the President's budget for this year; if it is displeased by President Obama's actions, it has ample opportunity to make that known by defunding him with unusually immediate effect. Who knows: Maybe this will break the budget logjam, bringing together deficit hawks and anti-war Democrats to shut the government down? As Justice Story remarked, in Britain—where the king was far more free to use military force than is our President, the power of the purse "is found to be abundantly sufficient to protect the nation against any war against the sense of the nation, or any serious abuse of the power in modern times." Id., § 1486.

I doubt that law—the sum of our Constitution, tradition, and statutes—prevents the President from doing what is right in Libya; he should do so forthwith.

The path forward on PaPACA, redux

As in the Virginia case, the plaintiffs in the Florida case challenging Obamacare are eager to skip the court of appeals and go directly to the Supreme Court. Is the idea that the Supreme Court stands ready to wade in and strike this thing down? I find that hard to believe. As I said in November:

it's hard to count to five for striking it down.

Let's start with four votes to uphold that we can be certain of: it's just inconceivable to me that [any of Justices] Breyer, Ginsburg, Sotomayor, or Kagan are closet federalists. That leaves the conservative bloc and Justice Kennedy:

  • Thomas has by far the clearest path to striking it down. His concurrences in United States v. Lopez and Gonzales v. Carhart and his dissent in Gonzales v. Raich, to name but a few, make his skepticism about modern commerce clause doctrine clear in many words and few.
  • Scalia has work to do before he can join a majority in striking down Obamacare. He must distinguish his concurrence in Raich, where he agreed with the majority that Congress can regulate intrastate commerce and even noncommercial intrastate activity so long as those regulations are integral parts of a larger regulation of interstate commerce and the broader regulatory scheme couldn't function without those restrictions. It's a fascinating case which really highlights the differences between Scalia's federal and Thomas', and I think he can distinguish Obamacare from the Controlled Substances Act at issue in Raich. The mandate to engage in interstate commerce is truly novel, and in my own opinion fatal. At any rate, the point is that Scalia has some work to do, but can ultimately be counted as a vote against Obamacare.
  • Alito's concurrence in United States v. Comstock suggests that he has more sympathy for federalism than does Roberts, who joined the majority in that case. At issue was whether 18 USC § 4248 (which authorizes federal courts to protract the release of certain mentally ill and sexually dangerous prisoner by ordering their civil commitment) exceeded Congressional power. The court said no, and in quite sweeping language; Alito qualified his support but Roberts did not. And neither of them are natural opponents of federal power, having spent their entire careers working for the feds. It is to be hoped that they are Rehquistian on these issues; neither has yet shown it.
  • Lastly, there's Kennedy, whose federalism is hard to predict. On the one hand, he wrote the turgid yet correct Alden v. Maine, and joined the sovereign immunity cases. On the other hand, he joined the more sweeping Stevens opinion in Raich, and his concurrence in Lopez suggests a pragmatic federalism that, as I said, is hard to predict. …

The bottom line for me is that we can only be certain of one vote; we can be fairly sure of two votes, we can hope for three (T, S, A). But Roberts and Kennedy, it's really tough to see which way they come out in this case.

I'm hopeful that the court will strike it down, and I think it should do so even assuming the validity of current doctrine, but I see little reason to be confident that it will.

Meanwhile, the Senate Judiciary Committee yesterday held what Senators euphemistically call a "hearing" (a title carried over, presumably, from distant days when anyone listened) on the Constitutionality of Obamacare, and as Sen. Grassley drolly observed, one might think the usual order would be to hold such a hearing before passing the bill. One thing amused me and one frustrated me.

The amusement was in the repeated assertions that today's critics must be wrong about the potential for overreach if Obamacare is accepted because yesterday's critics were wrong about the potential for overreach if the new deal/great society was upheld. Are they kidding? Yesterday's critics were correct; absent the overreach they condemned, there would have been no overreaching Obamacare for us to criticize. Sen. Leahy went on to describe Obamacare as a capstone of sorts on the long brick-by-brick construction of the liberal-envisaged state; he didn't put it quite that way, but I agree, and I see that enterprise as mistaken from the ground up.

The frustration was that the entire discussion—at least, until I could take no more and went outside to clear up the mess—proceeded from the assumption that existing commerce clause doctrine is correct. Raich and Wickard were invoked ad nauseum, and to my delight, so was Southeastern Underwriters, albeit not by name. That stipulation is understandable, because the court is likely to decide this case within the perimeter of existing doctrine, whichever way it comes out. (Cf. the Scalia-Alito altercation in NASA v. Nelson.) Nevertheless, this
"hearing" was nothing but theater, a pep rally held to play to the C-SPAN gallery, and for that reason, I lament that nobody even mentioned the obvious: That Wickard and its progeny were wrongly-decided, and if one happens to believe this act is consistent with doctrine, that is an indictment of the doctrine not an affirmation of the act. Volumes have been written on the problems with modern commerce clause doctrine, and we need not rehearse it here; Justice Thomas' opinions in Lopez and Raich are good starting points. For now, I only add that our current predicament shows why those cases should not only be regretted as water over the dam but overruled. While I agree that Obamacare is unconstitutional even within the existing doctrinal framework, the fact that the question is even close (as Prof. Fried's comments show that it is) shows what a misadventure we are on, splitting the hair ever thinner. I would prefer that we forthrightly acknowledge what is plainly obvious: that modern commerce clause doctrine has become a loophole allowing Congress to regulate virtually everything, and it should be closed. I agree with the observation of Justice Thomas in Lopez (quoting Jones & Laughlin) that we must "refashion a coherent test that does not tend to 'obliterate the distinction between what is national and what is local and create a completely centralized government.'" The Court must always be keenly aware of the danger to federalism from the overgrown and all-grasping prerogative of the national legislature. (The allusion is to Federalist 48.)

It was also truly astonishing to hear M'Culloch quoted by Obamacare supporters, apparently oblivious to what they were reading. Supporters of Obamacare skim from it the famous dictum "[l]et the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate are Constitutional." But that isn't what M'Culloch says, and that ersatz dictum has led to all manner of mischief. What Marshall wrote is this: "Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are Constitutional" (emphasis added). It is too obvious to credit dispute that a means which transforms Congress' limited powers into a plenary power (cf. Federalist 45) is consistent with neither the letter ("necessary and proper") nor, still less, the spirit of our federalist constitution (e.g. Younger v. Harris, 401 U.S. 37, 44-45 (1971) (Black, J.); Texas v. White, 7 Wall. 700, 725 (1869); US Term Limits v. Thornton, 514 U.S. 779, 838-39 (1994) (Kennedy, J., concurring)). To say that the only restraints on Congressional authority are those of the bill of rights, as three of the panel and several senators indicated yesterday, is to say that the unamended Constitution does not limit Congressional authority. Stripped of its rhetoric, the proponents' position is absurd, a mockery of the framers.

Meanwhile, yesterday's Senate vote reminds the nation that we are three Senators and one President away from repealing Obamacare. Keep piling on the pressure, and remember that we cannot have a frivolous candidate in 2012.

What The Big Deal Was

In light of Simon's post below, and the accompanying uproar over the issues raised by Rep. Jay Inslee and others over the reading of the Constitution today, I think this piece helps illuminate that there was in fact a substantive argument in place behind their protestations, and contrary to certain right-of-center opinions, it wasn't just whining and pettifogging:

Even those parts of the Constitution that are superseded by amendments are still the Constitution, and they are still there for a reason. When the states (with a handful of exceptions) amend their constitutions, they delete and rewrite them. When we amend a statute we delete it and start again. The U.S. Constitution is never "rewritten" though. It is amended. In his wonderful book The Invisible Constitution, Prof. Laurence Tribe explains why the Constitution is written "only in a forward-moving manner that never backspaces to erase a word that went before." To this day, Tribe notes, the document still contains the language about the three-fifths compromise. Why do we preserve the language of the Constitution, even after we've amended or repealed it? "By keeping even textually superseded language (like that of the 18th Amendment) intact and fully visible in each circulated copy of official text, we undermine efforts to sanitize or otherwise rewrite our troubled history as those in power throughout the world are wont to do with theirs."

This makes perfect sense to me. Now, you may quibble with this, but this is a legitimate point of debate, and as one who watched the entire hour and a half event, with my iPad copy of the Constitution in hand following along, I did find it a bit odd that the 18th Amendment was left out, among other things.

Now, one can dispute this argument entirely--one can disagree with the premise here, but I think it's unfair to presume bad faith, and dismiss these arguments as whining, unless there are prior statements from Inslee that I don't know about.

Another point of substance: If one wants to argue that Inslee's points were out of order, or not relevant, keep in mind two things: First, Rep. Louie Gohmert was right (I can count on one hand the number of times I've said that) that those portions superseded by amendment are not deletions, and to treat them as such dishonors those who fought for those amendments, but if those portions are still taken out, then that's exactly what's happened--they've been deleted. Now, some will argue that the point of this was to show respect for the Constitution, in its current form, as the law all of us must live by. Yeah, but the closing section including the signatories was read, as well as the preamble to the Bill of Rights.

At the end of the day, my belief that this exercise, partisan motivations aside, was instructive in many positive ways still stands. I get that there are those who felt, and still feel that the whole thing was a waste of time. The point is, if this project's aim is to show reverence for the Constitution, and promote debate on the Constitution in the halls of Congress and across the nation, then I submit that Inslee's (and those others who advance the argument) point was legit.

Deem and pass: a slight return

Some Dems are charging that the GOP has resurrected the "deem and pass" procedural rule it criticized last year. This seems like an opportune moment to recall that I didn't join in that particular tizzy. When I examined the issue last spring, I pronounced it dumb but constitutional.

The insufferable wrongness of Bush v. Gore-o-phobia

Jeff Toobin is still whining about Bush v. Gore. At the outset of his latest ennui-inducing screed, he argues that because important Supreme Court cases tend to be cited a lot in the decade after they're decided, the court's failure to do so amounts to its indictment of Bush.

But there's a simple reason why watershed cases are frequently cited in the ensuing years. The court typically decides a narrow point of law with broad implications; this naturally provokes a flood of litigation, and the courts spend years thrashing out the consequences of the decision. It happened after Brown; it happened after Roe; it happened after Apprendi and Booker; it happened after Twombly (which, as Judge Posner noted in Smith v. Duffey, "fast bec[ame] the citation du jour in Rule 12(b)(6) cases"); and it's happening now in the flood plain of Heller. And it should be obvious that the broader the scope of the decision, the more viable litigants with viable claims there will be, producing more lawsuits, which in turn produce more circuit splits on more questions, requiring more Supreme Court intervention, producing more cases which (naturally) cite the index case.

For obvious reasons, however, none of that applies to Bush. Bush concerned an unusual context (a Presidential election), and while it can and has been generalized to apply to elections more broadly, e.g. Coleman v. Franken, 762 N.W.2d 218 (Minn. 2009); Stewart v. Blackwell, 444 F.3d. 843 (6th Cir. 2006); Fruitlands v. Todd, 279 F.3d 1204 (10th Cir. 2002), that is still a very small constellation of cases, and an even smaller number of certworthy cases. What's more, elections cases are less likely to go the distance. In low-profile elections, the stakes are typically too low for sustained litigation (who goes to the Supreme Court over a mayoral race?), while in high-profile elections, huge pressure is brought to bear on the litigant to stop being a sore loser and concede.

By contrast, after Brown, just about every African American family in the south had a cause of action, Roe at least theoretically supplied a cause of action to every woman and abortion provider in states with abortion laws, and Heller did the same for people who own guns in political units with gun control laws. And Twombly and Iqbal have a potential catchment of every defendant in a civil case. Small wonder, then, that these cases invited lots more litigation, and smaller yet that the Supreme Court hasn't cited Bush. As I've said before, while "[t]he court's docket is described as discretionary, … [it] might better be called à la carte: the court gets to pick from among the cases presented to it," and there simply haven't been any certworthy cases appealed to the court involving Bush.

Lastly, a nit that must be picked. Toobin continues: "What made the decision in Bush v. Gore so startling was that it was the work of Justices who were considered, to greater or lesser extents, judicial conservatives." But this is legerdemain, and banal legerdemain at that. To the extent Toobin is arguing that the five's perceived political preferences line up with the candidate favored by their vote in Bush, the same may be said with no less force about the four. And why is he shy about pointing out the obvious: What made the dissents in Bush v. Gore so startling was that they relied on positions wildly in tension with the judicial philosophies of their authors. (The same can be said of the five only by forking strawmans of their philosophies.) Toobin is simply regurgitating the kind of mindless one-sided cant about Bush that Ann Althouse persuasively demolished in The Authoritative Lawsaying Power, 61 Md. L. Rev. 508 (2002). He would do well to familiarize himself with it.

Of two John Pauls

John Paul Stevens offers a critique of the death penalty, framed as a review of David Garland's new book on the subject, Peculiar Institution. Among other things, Garland argues that the growth of unquestioned state power and centralization in Europe allowed "criminal justice bureaucrats and national parties in Europe … [to] impose[ ] abolition despite popular opposition," whereas over here, "abolitionists found the … bureaucracy and the relatively weak national parties inadequate to the task of overriding public support" for the death penalty. Predictably, Stevens says this with a note of lament.

Nevertheless, while an unhappy camper, I am in the Stevens camp, at least so far as ends are concerned. (I reject his willingness to impose that result by judicial activism—his dissent in Baze v. Rees, for instance). John Paul II writes in Evangelium Vitae:

[T]o kill a human being, in whom the image of God is present, is a particularly serious sin. … [Yet there are] situations in which values proposed by God's Law seem to involve a genuine paradox. This happens for example in the case of legitimate defence, in which the right to protect one's own life and the duty not to harm someone else's life are difficult to reconcile in practice. Certainly, the intrinsic value of life and the duty to love oneself no less than others are the basis of a true right to self-defence. The demanding commandment of love of neighbour, set forth in the Old Testament and confirmed by Jesus, itself presupposes love of oneself as the basis of comparison: "You shall love your neighbour as yourself" (Mk 12:31). Consequently, no one can renounce the right to self-defence out of lack of love for life or for self. …

Moreover, legitimate defence can be not only a right but a grave duty for someone responsible for another's life, the common good of the family or of the State. Unfortunately it happens that the need to render the aggressor incapable of causing harm sometimes involves taking his life. In this case, the fatal outcome is attributable to the aggressor whose action brought it about, even though he may not be morally responsible because of a lack of the use of reason.

This is the context in which to place the problem of the death penalty. On this matter there is a growing tendency, both in the Church and in civil society, to demand that it be applied in a very limited way or even that it be abolished completely. The problem must be viewed in the context of a system of penal justice ever more in line with human dignity and thus, in the end, with God's plan for man and society. The primary purpose of the punishment which society inflicts is to redress the disorder caused by the offence. Public authority must redress the violation of personal and social rights by imposing on the offender an adequate punishment for the crime ….

It is clear that for these purposes to be achieved, the nature and extent of the punishment must be carefully evaluated and decided upon, and ought not go to the extreme of executing the offender except in cases of absolute necessity: in other words, when it would not be possible otherwise to defend society. Today however, as a result of steady improvements in the organization of the penal system, such cases are very rare, if not practically non-existent. … If bloodless means are sufficient to defend human lives against an aggressor and to protect public order and the safety of persons, public authority must limit itself to such means, because they better correspond to the concrete conditions of the common good and are more in conformity to the dignity of the human person.

(Footnotes, section number, and some citations and internal quotation marks omitted.) When this teaching is accorded the appropriate deference, see Lumen Gentium, no. 25, its interpretation of the fifth commandment hits with irresistible force. This might not be so if I felt able to offer a strong (or at least viable) counterargument, but I do not. While I agree with Justice Scalia that there is a relevant distinction between the scope of moral actions available to the state as compared to individuals, I read Evangelium Vitae as proposing something akin to the least restrictive means test: the death penalty is only permissible when and to the extent that (1) the penological goals served are essential and legitimate and (2) society has no other viable (or at least practical) means of fulfilling them.

There may be situations in our past and elsewhere in the world where these conditions obtain, but here and now, they appear unlikely and uncommon. Accordingly, so far as the death penalty is concerned, and without prejudice to extraordinary situations: as a juror I would not be able to impose it; as a legislator I would probably vote to repeal it; and as a governor with clemency power, I would typically commute any death sentences imposed before or during my tenure. The Magisterium is not served à la carte.

HT: Howard.

D.C. and Puerto Rico in the U.S. House

In Igartua v. United States, the First Circuit has hammered another nail into the coffin of the misbegotten attempts to get the District of Columbia a vote in the U.S. House. While the case actually involved a misbegotten attempt to get Puerto Rico a vote in the U.S. House, plaintiffs and their supporting amici advanced analogous (all-but identical, actually) arguments to those made by proponents of D.C. representation, along with a new, ingenious, but erroneous argument based on Boumediene. The First Circuit roundly rejected the notion that a territory may be represented in the House of Representatives, even when the territory has been treated as a functional equivalent of a state for certain purposes. (One judge--the usual suspect--felt the need to embarrass himself with a dissent from this no-brainer call, but we shall spare the blushes of his nominator and colleagues by ignoring it.)

My most recent treatment of this whack-a-mole of an issue (from February 2009) is here.

O'Donnell and the separation of Church and State

The lawyers know this already, but for everyone else: O'Donnell was right.

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