.: I Respectfully Dissent :.

The Misguided Search for "the One Law - and the Ongoing Struggle to Articulate it Correctly"

The public draft of my essay The Misguided Search for "the One Law - and the Ongoing Struggle to Articulate it Correctly", discussing the use of comparative analysis in U.S. domestic ajudication, is now available at SSRN. Here's the abstract:

In Mediating Norms & Identities: The Role of Transnational Judicial Dialogue in Creating and Enforcing International Law, Professor Waters urges Federal courts in general, and the Supreme Court of the United States in particular, to participate in an ongoing colloquy between American courts and the courts of other countries. By so participating, suggests Waters, our courts can act not only as norm importers – that is, incorporating foreign precedents into domestic jurisprudence, as in Lawrence v. Texas and Roper v. Simmons – but also as norm exporters, to which other courts in other countries will look when interpreting their own laws and constitutions.

It is not universally agreed that this picture is as rosy as Waters paints it; indeed, many regard it as decidedly dystopian, and fear that Josh Hsu is correct when he claims that "historians [may] likely look back on the era of Atkins, Roper, and Lawrence as a turning point in the Court's decision-making process."

While this essay closely scrutinizes Mediating Norms, I does not so much engage it on its own terms, but rather, at the level of what I perceive to be its animating premises: that is, to critique the conceptions of universal applicability and "the one law" that underlie the transnationalist paradigm of using comparative materials to shed light on purely domestic law. Herein, then, I approach the issue of foreign law through the lens of a skeptical textualist reading Mediating Norms. In doing so, I hope to clarify the parameters of the debate and to restate, formalize, and develop various criticisms propounded by skeptics of foreign law, in particular, those offered in various speeches by Justice Scalia.

Posted 15:09, 12/31/2006 by Simon | Filed under: ConLaw | Comments (2)

Signing statements

After a recent discussion in comments at another blog, I feel rather like pointing something out about signing statements.

This administration, of course, is into signing statements in a big way, and frankly, I can see why they make people uncomfortable: it seems readily apparent that this administration is very keen to expand the power of the executive at the expense of Congress, a project of whose merits I am highly sceptical, and two of the devices it has chosen to accomplish that goal are the unitary executive theory and extensive use of signing statements. However, while I think people may well be right to be concerned about the frequency and extent of the use of signing statements by this administation, there is a tendancy among some to carry this even further, and to question the basoc legitimacy of signing statements.

I've talked before about the unitary executive (see About the unitary executive and settled law, 1/11/06) so let me address a few words for those who fall into the group I identified above, who have concerns not only about this President's use of signing statements, but about signing statements in general.

I
I want to approach this be offering a hypothetical, and we'll start simple. The basic question is: can the President decline to enforce an unconstitutional law? Or, perhaps more aptly, the question is whether, in the absence of clear Supreme Court precedent on the question, the President may exercise judgement as to the constitutionality of a statute.

Let's start by stating some propositions that are assumed to be axiomatic:

"An act of the legislature repugnant to the constitution is void," as Marbury says;
The President has a duty to faithfully execute the laws, per Art.II §3, but also takes an oath of office to "preserve, protect and defend the Constitution of the United States," per Art.II §1.
When acting under the presentment clause, a President can veto a bill for any reason he chooses, and one of the more legitimate reasons to veto a bill is because he doubts the constitutionality of the measure.
When the Supreme Court has deemed a statute unconstitutional, the executive has no obligation to execute that statute (indeed, he has a duty not to), because being repugant to the constitution, the statute is not a law.

Now, suppose that there is a given law in existence when the President takes office, which the Supreme Court has not yet ruled on (perhaps no one can muster standing to challenge it) but it is clearly unconstitutional. The original statute passed by Congress, the "Help America Write Catchy Statute Titles Act (HAWCaSTS), 206 Stat. 12575, has three chapters: chapter one defines and sets a punishment for piracy, and is codified at 18 U.S.C. §1652, chapter two appropriates money to pay salaries for the United States Navy, to the tune of several billion dollars, while chapter three created 18 U.S.C. §2381(a) to punish treason by creating the sentence of the shunning of the traitor's family: the executive will ensure that no children of a convicted traitor ever recieve federal money, and will carry signs around their necks identifying themselves as spawn of a traitor for the rest of their life.

Obviously, chapters one and two are constitutional, because they fall into the explicit grants of Congressional power in Art.I §8, and equally obviously, chapter three is unconstitutional, since it violates Art.III §3. Keep in mind when answering the following question: the Supreme court, for whatever reasons, hasn't reviewed the case. In your opinion, can the President refuse to enforce §2381(a) on the grounds that it is unconstitutional, even absent a ruling from the Supreme Court saying so?

The answer, or course, is yes. Not only can the President refuse to enforce §2381(a), it is arguable that he has a duty to do so, as the Clinton Administration argued:

in Myers v. United States . . . the Court sustained the President's view that the statute at issue was unconstitutional without any member of the Court suggesting that the President had acted improperly in refusing to abide by the statute. More recently, in Freytag v. Commissioner, all four of the Justices who addressed the issue agreed that the President has "the power to veto encroaching laws . . . or even to disregard them when they are unconstitutional." Id. at 906 (Scalia, J., concurring) . . . [moreover, ] consistent and substantial executive practice also confirms this general proposition. Opinions dating to at least 1860 assert the President's authority to decline to effectuate enactments that the President views as unconstitutional . . . and numerous Presidents have provided advance notice of their intention not to enforce specific statutory requirements that they have viewed as unconstitutional, and the Supreme Court has implicitly endorsed this practice.

Now, let's take the hypothetical a little further. Having agreed to the proposition that the President can refuse to enforce §2381(a) standing alone, remember, this is all one statute we're talking about and presently this is a statute enacted and signed into law before this President came into office. With that in mind, can the President still refuse to enforce §2381(a) while enforcing §1652 and paying the sailors wages provided for by chapter two?

The answer, in my view, is yes. And of course, it would be absurd to suggest that the President can only do so sub silentio; if she believes that §2381(a) is unconstitutional, and has no intention of enforcing it, she can say publically that she will not enforce §2381(a). But the import of this should be clear: if a President (who did not sign the bill) can refuse to enforce §2381(a), the President is refusing to enforce one part of our hypothetical act of Congress while continuing to enforce other parts of the same act of Congress.

If you can agree that this much is fair game, it surely becomes a less daunting step to get to signing statements, to which we turn next.

II
Pause for two more axiomatic points. First, a President who believes that a piece of legislation presented to him is unconstitutional in whole is obligated by his oath of office to veto the bill. (In point of fact, this is actually the worst thing that one can say about Bush: he signed the McCain-Feingold bill while claiming that he believed it was unconstitutional). Second: not every challenge to legislation is a facial challenge (see United States v. Salerno, 481 U.S. 739, 745) (1987) (in a facial challenge, plaintiff "must establish that no set of circumstances exists under which the Act would be valid . . . [That a law] might operate unconstitutionally under some conceivable set of circumstances is insufficient to render it wholly invalid"); sometimes an otherwise constitutional piece of legislation can be unconstitutional as applied to a particular situation or person.

We've also been dealing with an example where the President was not asked to sign the law; it was in force before she took the oath of office. Suppose our fictional President is now presented with a bill similar to the one we were using in our earlier hypothetical, HAWCaSTS. In so clear-cut an example, the President should simply veto the whole thing, and send it back with the stipulation that she will sign it when chapter three is removed.

But what about a less extreme example? Our hypothetical is pretty extreme in its detail; chapter three is so obviously unconstitutional as to be a reductio ad absurdum (although it should be noted that the principle still holds true in less extreme hypotheticals, as I intend to show). What about a statute presented to the President for their signature which contains six thousand clauses in three hundred pages; 5,996 of those clauses are simple, straight forward, self-explanatory and self-evidently constitutional. But the four clauses that comprise §283(a) are ambigious: they could be interpreted in two ways, one of which is arguably constitutional, the other one is arguably not constitutional. It's a close call. Now what?

Should the President reject the statute in toto? Well, the idea of comity between the branches is not just something that exists between the Court and the Congress; the Congress has implicitly declared its belief in the constitutionality of those clauses by passing the statute. Deference to Congress in such a circumstance, when the call is close, is surely one valid strategy when the situation isn't as clear cut as our nice, clean, obvious Althouse-approved hypothetical above, don't you think?

Now, if you can accept all the foregoing, doesn't it seem to stand to reason that a President who accepts the bulk of a statute, but believes one or two bits could be interpreted in more than one way, is entitled to sign the law while saying that he - without binding his successors to the same interpretation - will construe the unclear clauses in a manner he believes to be consistent with the Constitution? There's a well known canon of construction that holds that "if a statute is susceptible to more than one reasonable construction, courts are to choose an interpretation that avoids raising constitutional problems." Why just courts? Why not the President, too?

* * *
To be clear, I am not defending a specific use of signing statements by any given President. My point is only that it is overreaching by desparate shrubophobes to generalize their disagreement with the President's objectives into disputing his chosen means. Last word goes to the Clinton Justice Department again:

If the President may properly decline to enforce a law, at least when it unconstitutionally encroaches on his powers, then it arguably follows that he may properly announce to Congress and to the public that he will not enforce a provision of an enactment he is signing. If so, then a signing statement that challenges what the President determines to be an unconstitutional encroachment on his power, or that announces the President's unwillingness to enforce (or willingness to litigate) such a provision, can be a valid and reasonable exercise of Presidential authority.

Any questions?

Posted 14:47, 5/12/2006 by Simon | Filed under: ConLaw | Comment on this

Cruel and unusual?

Benjamin Wittes has an essay, What Is "Cruel and Unusual"? in Policy Review, online here. Hat tip: Milwaukee Federalists.

Having declared (unquestionably accurately) that the Court has rendered the Eighth Amendment "a jurisprudential train wreck," Wittes takes a pretty decent stab at charting a course between Scylla (the unprincipled nonsense of Trop's evolving standards of decency "test") and Charybdis (Our Hero's platonic view of a static eighth amendment). I like this piece, but the analysis is not without its problems (from my point of view, at least), which I turn to first.

First, I think that Wittes is excessively casual in saying that Scalia's view of an unevolving Eighth Amendment "defies the entirety of the court’s history of interpretation of the amendment;" as Wittes acknowledges, the court first began to give a broader meaning (pause to consider for a moment: broader than what? Broader than the orthodoxy until that point) to the amendment in Wheems, decided in 1910, after a century in which the eighth amendment was considered to have precisely the meaning ascribed to it by Justices Story and Scalia. Second, Wittes is sanguine that the terms "cruel" and "unusual" "are, after all, words with objective meaning, precisely the sort of words that, elsewhere in the Bill of Rights, have given rise to generations of case law that provide guidance to policymakers and lower courts." While "unusual" is, by definition, an objective standard determined by reference to quantitative metric, I am less certain that "cruel" – even as defined here as "the needless infliction of pain or suffering" - is an objective standard. Defining it by introducing a new subjective term in the definition doesn't make it any less subjective, although admittedly, "needless" is certainly closer to "reasonable" than it is to "cruel", and as I'll talk about in a moment, we happily accept some level of judicial discretion where "reasonable" is concerned. In any event, this raises the red flag of the very judicial discretion that concerns us in “the evolving standards of decency” test.

Underlying all this is the big question of whether the Eighth Amendment (or any other Constitutional provision) gives the Supreme Court the power and authority to elevate current trends in penology to the status of a constitutional prohibition. As Wittes is careful to point out, the big problem with the evolving standards test is that it is literally nothing more than cover for the Court's own preferences:

[In Atkins and Roper], the court has struck down capital punishment for the mentally retarded and for juvenile offenders, both practices it upheld as recently as 1989. In both cases . . . the court was announcing [not] "that this Court’s decision 15 years ago was wrong, but that the Constitution has changed." One doesn’t have to share Scalia’s approach to the amendment to conclude, with him, that this will not do. The challenged practices, after all, had not changed. The court admitted no bottom-line error. In neither case could it point to more than incremental evolution in political attitudes toward these controversial punishments. A few more state legislatures had banned the practices and public opinion had moved somewhat. Foreign governments disapproved. Medical and psychological advances had taken place. Somehow, out of these transient developments, a supposed consensus is born . . . [Yet] [t]he court has never bothered to say how many states need to turn away from a practice before it becomes off-limits to other states. Nor, more broadly, has it ever specified what weight it grants to any particular factor in assessing whether a consensus has developed against a particular punishment. Nor does it even explain why it relies on certain factors while ignoring others in the first place. If American sources of law don’t by themselves form a consensus, the court feels free to consult foreign practice. It relies on scientific studies that support its position but leaves others out without comment. In the end, it’s hard to resist Scalia’s devastating conclusion that the court’s methodological approach “is to look over the heads of the crowd and pick out its friends.”

What I think bothers Nino about it is the undemocratic nature of the thing. Why should five unelected lawyers be permitted to forever foreclose certain penological options to legislatures, based on either prevailing trends in penology or society's attitudes theretowards - or, worse yet, what those five unelected lawyers say are prevailing trends in penology or society's attitudes theretowards, by which they mean their opinion?

Scalia's view of the Eighth Amendment, characterized here as “forbid[ding] [only] those [punishments] that are politically unthinkable anyway,” would essentially leave all but the most extreme penology decisions to the discretion of popularly-elected legislatures. Why is that undesirable? It does, at least, have the virtue of being compatible with the form of government enshrined in the Constitution.

In any event, despite these problems (and a few others), I have to admit that Wittes' analysis is very attractive and raises some questions that can't easily be escaped. For example, he raises the undeniably fair point: why must an originalist declare that the meaning of "cruel and unusual" in the Eighth Amendment is frozen in time as per its understanding in 1791 (or 1868 for the states) while most originalists do not insist on interpreting the meaning of "arms" in the Second Amendment or "reasonable" in the Fourth Amendment (or, for that matter, "excessive", as in excessive bail, also in the Eighth Amendment) by the standards of 1791 / 1868? Why, that is, can we not say of cruel and unusual punishment what the Chief once said of probable cause, that it is a "fluid concept[] that take[s] [its] substantive content from the particular contexts in which the standards are being assessed," Ornelas v. United States, 517 U.S. 690, 696 (1996)? I have no answer to this point. Unlike Our Hero (see Harmelin v. Michigan - reading the syllabus for which, incidentally, is like viewing a still life of said train wreck), I do not fully accept that the original meaning of the Eighth Amendment does not (or rather, can not) include an element of proportionality, and a theory which might bring proportionality into Eighth Amendment jurisprudence in a principled and coherent way (see discussion infra) is welcome.

Moreover, Wittes avoids the errors that would immediately put me on guard against his analysis. He is careful to insist that a punishment must meet the criterion that it is both cruel AND unusual, rather than being one or the other. Anything less would essentially put a ticking time bomb under all punishments: by definition, all new punishments are unusual, and the problem with having an evolving, amorphous and subjective standard like "cruel" or "needless" is that sooner or later, someone will decide that all existing punishments are cruel.

In sum, I'm not sure that Wittes has got the right answer, but he is asking the right questions. Scalia's approach is good because (inter alia) it relies on clear rules, neutral standards and objectively determinable facts. Its primary defect, Wittes says, is that it simply doesn't match up to the original understanding of the Eighth Amendment's breadth and scope - or, at very least, it simply doesn't match up to a reasonable understanding of the same tempered by a century of stare decisis. These are fair and reasonable arguments, and my concerns for where it goes wrong essentially turn on (a) the extent to which Wittes fails to support the proposition with founding era evidence, and (b) that it fails to articulate the sort of clear rules, neutral standards and objectively determinable criteria which make Scalia's position so much more desirable than the alternative. What Wittes proposes is vastly superior to the mushy "evolving standards of decency" test, but it is not - not yet, at any rate - an improvement on Scalia's view. What Is "Cruel and Unusual"? lays out the beginning of what could be a strong attempt to get the Eighth Amendment back on the rails, but doesn’t quite get the firebox lit again.

To conclude with a note on which we undoubtedly agree, I would second Wittes' point that "[w]hat we can insist on prospectively . . . is that the two terms [cruel and unusual] be defined in some way as to offer some predictability as to which punishments will be upheld and which struck down and to provide some doctrinal constraint on judicial policymaking and discretion."

Posted 19:41, 4/4/2006 by Simon | Filed under: ConLaw | Comment on this

Bush to propose line item veto act - what's changed?

It turns out he wasn't kidding in the State of the Union. Bzzt! I'll take "things that are unconstitutional" for 500, Alex!

In case anyone doesn't know, this was tried a few years ago, and was promptly found unconstitutional in Clinton v. City of New York, 524 U.S. 417 (1998):

The Act empowers the President to cancel an “item of new direct spending” . . . specifying that such cancellation prevents a provision “from having legal force or effect” . . . Thus, in both legal and practical effect, the presidential actions at issue have amended two Acts of Congress by repealing a portion of each . . . [T]here is no constitutional authorization for the President to amend or repeal.

As with so many things, the line item veto is one of those ideas which may well, in fact, be a pretty good idea, and yet is none-the-less beyond what the Constitution permits. One does not have to like the idea of the unitary executive to conclude that it is what the Constitution requires *; one does not have to dislike the idea of a line item veto to conclude that the Constitution forbids it. As Justice Kennedy's concurrence notes, it is inadequate justification "to say that Congress surrendered its authority by its own hand; nor does it suffice to point out that a new statute, signed by the President or enacted over his veto, could restore to Congress the power it now seeks to relinquish . . . That a congressional cession of power is voluntary does not make it innocuous."

It bears pointing out that Yahoo actually gets it wrong - Clinton did not say, as Yahoo claims, that 2 U.S.C. § 691 "violated the principle that Congress, and not the executive branch, holds the power of the purse," it said that it violated the terms of the presentment clause:

There are important differences between the President’s “return” of a bill pursuant to Article I, §7 ["he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it"], and the exercise of the President’s cancellation authority pursuant to the Line Item Veto Act. The constitutional return takes place before the bill becomes law; the statutory cancellation occurs after the bill becomes law. The constitutional return is of the entire bill; the statutory cancellation is of only a part. Although the Constitution expressly authorizes the President to play a role in the process of enacting statutes, it is silent on the subject of unilateral Presidential action that either repeals or amends parts of duly enacted statutes [and] [t]here are powerful reasons for construing constitutional silence on this profoundly important issue as equivalent to an express prohibition . . . Our first President understood the text of the Presentment Clause as requiring that he either “approve all the parts of a Bill, or reject it in toto.”

In other words, the line-item veto at issue in Clinton wasn't a pure line-item veto; so, according to Congressional Quarterly, the Bush bill's text may try to get around this by :

forc[ing] Congress to cast a separate up-or-down vote on particular spending or tax items that he opposes within larger bills. “By passing this version of the line-item veto, the administration will work with the Congress to reduce wasteful spending, reduce the budget deficit, and ensure that taxpayer dollars are spent wisely.”

In other words - not cancellation, but actually returning specific parts of the bill.

We'll have to wait for the exact text, but I simply can't imagine language that could survive scrutiny, and given the implication of the CQ report, it might even lose another vote. Firstly, five members of the six-member Clinton majority remain on the Court, and one of the dissenters (O'Connor) is also gone. Nor should it be assumed that our Fearless Leader and Brother Sam would have joined Justice Scalia's dissent: the Clinton majority included Justice Thomas and the late Chief Justice, and the minority included Justice Breyer, which makes this anything but a liberal/conservative divide, or even an originalist/living documentarian divide. But what really strikes me is that Scalia's dissent does not attempt to uphold a line-item veto: quite the contrary. Indeed, from the language of the dissent, I suspect that the divide between Scalia and Thomas in Clinton actually turned not on whether the original understanding of the presentment clause (or any other) is violated by a line-item veto, but on whether or not they regarded the statute as a line-item veto in the first place. Quoth Our Hero:

The President’s action [the statute] authorizes in fact is not a line-item veto and thus does not offend Art. I, §7; and insofar as the substance of that action is concerned, it is no different from what Congress has permitted the President to do since the formation of the Union

(Emphasis added). I don't know how to read this other than as going out of its way to say that the statute is not a line item veto, suggesting with heavy inference that a statute that really was a line-item veto would fail Scalia's test. Indeed, the statement "[the statute] in fact is not a line-item veto and thus does not offend Art. I, §7" practically screams the corollary "...but if it was, it would." So in fact, a statute that uncontroversially IS a line-item veto, which seems to be what Bush is proposing, might well even lose Scalia's vote.

Update: I have a slightly expanded version of this post with attendant discussion at Centerfield.

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Footnote:

* See About the unitary executive and settled law, 1/11/06; cf. comments here ("There are many things that the Constitution says (directly or in practical effect) which make no sense to me, but that doesn't mean they can be "fixed" by litigation . . . I don't think that the Unitary Executive is [necessarily] a particularly attractive proposition on a normative level, but I do think that it's what the Constitution says").

Posted 00:26, 3/6/2006 by Simon | Filed under: ConLaw | Comment on this

Lochner v. New York vs. West Coast Hotel v. Parrish

There is a pretty long and very substantive debate between myself and another poster over in a comments thread at Pandagon (a completely off-topic exchange in a thread titled - with the gloriously unselfconsciously contradictory title "Impeach The Fucker? Let Us Consider Seriously and Dispassionately"; fair warning, the link is to a liberal blog, so those who don't agree with going out and preaching to the unconverted, look away now), where I attempt to explain conservative legal thought (or at least, my variation thereof) on the Ninth Amendment, Lochner and West Coast Hotel, and unenumerated rights more generally. I don't expect to make converts, but it's been enjoyable, and I hope at least makes it clear to readers of that thread that we beastly Federalist Society types aren't out to destroy civilization as we know it: there is, in fact, a thought process and a paradigm underlying our thought process.

While I fully intend to return to most of these issues this year, I'm not sure when I'll get the chance to tackle West Coast Hotel, so maybe it's worth reprinting those remarks.

My Pandagon interlocutor Magis notes my distaste of Lochner, which I cite as an example of conservative judicial activism, and "wonder[s] why you would feel that would be judicial legislation and not West Coast Hotel v. Parrish, 300 U.S. 379, which overturned it? [After all, ] [t]his was one of the fonts of paternalistic government that I thought conservatives decried. So now do we have the odd spectre of a liberal arguing for Lochner and a conservative arguing for West Coast Hotel?"

It’s a fun vision of role reversal, but I think it’s a false dichotomy. Robert Bork paraphrases (of all people) Lenin in THE TEMPTING OF AMERICA, saying that “who says Lochner says Roe.” Fair point - however, I don’t think that it thus follows that he who says "no" to Lochner must say "yes" to West Coast Hotel.

It’s worth noting at the outset that West Coast Hotel didn’t so much overrule Lochner - outright or even sub silentio, for that matter - as set it to one side. Rather, the core holding of Lochner - that the due process clause has substantive content - is, if anything, reaffirmed. Lochner and its progeny (most directly relevant being (Adkins v. Children’s Hospital, 261 U.S. 525, a fabulously-written but utterly wrong opinion, which West Coast Hotel did overrule) said - and Justice Sutherland’s dissent in West Coast Hotel said - that the “liberty” protected by the due process clause includes a right to free contract which is violated if the state establishes laws that restrict the number of hours a person may be asked to work or the amount of money they can be paid. Poppycock.

But the West Coast Hotel majority did not say that this was poppycock; they neither repudiated substantive due process in general, nor the right to free contract in particular. Instead, the Court contented itself to say that the liberty involved could not be taken away without due process, but that due process had been satisfied in this deprivation of liberty:

[On] the general subject of the regulation of the use of private property and of the making of private contracts [we have] declared that, if such laws have a reasonable relation to a proper legislative purpose, and are neither arbitrary nor discriminatory, the requirements of due process are satisfied.

(West Coast Hotel, supra at 398, quoting Nebbia v. New York, 291 U.S. 502). In other words, the Court declared not that the underlying freedom of contract claim was wrong, but instead, that under a rational basis review, a state could abrogate that liberty if it did so in relation to a legitimate state interest, and the court would generally defer to the elected branches on what constitututed a legitimate interest.

I would therefore have concurred in the West Coast Hotel judgement, but I would not have joined the majority opinion, and still less Justice Sutherland’s dissent. I would have decided the case on an entirely different basis: the due process clause speaks to the necessity that a person cannot be executed, imprisoned or fined other than in the course of the due process of law, a guarantee that predates not only the Bill of Rights, not only the colonies, but the common law itself, stretching back at least as far as the Magna Carta ("[n]o free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land"). It does not speak to a more general set of rights that might be termed “Liberty” with a capital “L”; that being the case, it cannot possibly create a Federal Constitutional right to freedom of contract, and thus the minimum wage law at issue is Constitutional.

Posted 22:21, 1/27/2006 by Simon | Filed under: ConLaw | Comment on this

Can Congress give the President authority to appoint judges without Senatorial consent?

Yes, suggests a commenter at ConfirmThem.

The commenter proposes an idea based on the plain text of Art. II §2:

[The President] shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law: but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments.

The commenter suggests that, because the text requires Senatorial consent only for Judges of the Supreme Court, Congress could pass a law permitting the President to appoint Judges of lower courts without the consent of the Senate. My first thought was that this was utterly absurd, but on more reflection, as a purely textual matter, I'm not sure that it's actually so ludicrous after all.

Art. II §2 clearly contemplates "judges of the Supreme Court" as within the class of the term "officers of the United States," ejusdem generis, and undoubtedly grants Congress authority to give to (and rescind from) the President the power to appoint "inferior officers." The relevant question, then, is this: if Supreme Court Justices are officers of the United States, are Judges of the Circuit Courts inferior officers of the United States within the meaning of Art. II §2?

The argument that they are is textually bolstered, in my view, by the terms of Article III, insofar as it vests the Judicial power of the United States "in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish." It’s interesting that both Articles use that word: if the circuit courts are inferior courts, and if the Justices of the Supreme Court are officers of the United States, it stands to considerable reason that the Judges of the inferior courts are inferior officers of the United States.

This is, of course, a purely theoretical question, since the Senate would never consent to such an abrogation of its traditional prerogative to concur in the appointment of judges to any courts, even if such a bill passed the House by unanimous consent. Furthermore, such a holding would run completely contrary to a traditional practise that dates back to the establishment of said inferior courts, but on the other hand, we originalists "argue for the role of tradition in giving content only to ambiguous constitutional text; no tradition can supersede [the clear textual command of] the Constitution," Rutan, 497 U.S. 62, 96 n1.

All in all, I think this is an interesting proposition which perhaps warrants closer examination, even if only for intellectual gratification.

Posted 16:44, 1/19/2006 by Simon | Filed under: ConLaw | Comments (3)

About the unitary executive and settled law.

I had intended to write some comments about settled law in the context of the repeated use of that term at the Alito hearings; I had also thought I might like to write something about the unitary executive, for the same reason. As it turns out, Ann Althouse was on the radio earlier today, discussing (inter alia) these two issues, and posted a link. I thus had occaision to write about my thoughts over there, and so instead of re-writing, I'm just going to re-post

I
In my view, the idea that Roe v. Wade, 410 U.S. 113 (1973) is "settled law," frankly, becomes absurd as soon as you try to define "settled."

Is Miranda v. Arizona, 384 U.S. 436 (1966), "settled law"? I don't want to suggest that I've been seduced by the fallacious (but oft-repeated) idea that the Chief Justice thought so in Dickerson v. United States, 530 U.S. 428 (2000), but I do want to suggest that if we are to offer a model of settled law, Miranda might be it. As an original matter, I don't think it's entirely clear that the Constitution requires, or even supports, the result in Miranda; however, the opinion was not entirely bizarre; the writing makes a good case for itself; it is, in fact, a doctrinal ruling that attempts to give effect to an actual Constitutional right; in terms of public acceptance, several decades later it is seriously challenged by virtually no one, and is certainly not generally controversial, either in the academy or the public at large. You can make a good case, on this basis, that Miranda is settled law, and thus, that Dickerson was correctly decided.

However, by contrast, using the same rubric to evaluate Roe, it is instantly preposterous to suggest it is "settled law." As an orignal matter, a blatantly wrongly-decided case (not least because the merits should never have been reached); the legal analysis in the opinion is, literally, non-existant, as everyone up to and including its author admit; it is premised upon a Constitutional right that flat-out doesn't exist; in terms of public acceptance, it was controversial from the moment it was handed down, and far from being less controversial now, it has grown more poisonous and controversial with every passing year. On top of all that, every single Supreme Court confirmation hearing, every Presidential election, every Senatorial election and two generations of political discourse have been corrupted and poisoned by an unconstitutional, pernicious, blatant and - even in the eyes of many pro-choice liberals - utterly unnecessary act of judicial usurpation. If Roe is settled law, I'm a banana.

II
Regarding the unitary executive, I don't really think it's all that extreme or bizarre a theory, and I really don't think that the division in Morrison v. Olson, 487 U.S. 654 (1988), is a good metric for determining how popular the theory is (that is, that it's all that bizarre that Justice Scalia was the only person who voted for it in Morrison). Remember who was President at the time, so remember who the application of the unitary executive would favor in that case. I genuinely and honestly believe that, had that case come before the same court with a Democratic President - say, Clinton - Brennan, Marshall and Blackmun would have Joined Scalia's opinion without hesitation.

As I see it, the unitary executive theory embraces two aspects: procedural and substantive, that is, it talks about both how the business of the executive is conducted, and what actual limits are placed on the scope of the executive's actions within the law. It seems to me that watching the Alito hearings, no person who has asked a question about the unitary executive has any real understanding of what the theory entails: they simply assume that it is a codeword for a belief that we should give a latitudinarian interpretation to the powers of the President. But this belief is not only flatly contradicted by all the scholarship on the unitary executive that I've read, but it is also set in stark relief when one considers that Justice Scalia - the one and only Justice to endorse the unitary executive in Morrison - was also one of only two Justices in Hamdi v. Rumsfeld, 542 U.S. 507 (2004), to argue for a narrower reading of Presidential power than the unitary executive. Similarly, I agree with the unitary executive theory, but my view on the independent power of the executive branch, under this President or any other, is probably more narrow than any Republican to whom you'll speak about the matter. Even among people who agree with the procedural aspect of the unitary executive theory - which is the hallmark, the defining feature or the theory - there is a very broad range of opinion about the substantive aspect, that is, the scope of action.
________________
Post facto: More comments on the unitary executive from me here.

Posted 22:44, 1/11/2006 by Simon | Filed under: ConLaw | Comment on this

The supremacy clause, nullification and bad precedent

Last week, Prawfsblawg's Steve Vladeck posted an interesting op/ed from Alabama Supreme Court Justice Tom Parker, that advanced the theory that state courts should simply ignore Roper v. Simmons (which I commented on, after a fashion, last year; see Since I have some time...Roper v. Simmons, 4/6/2005). The same theme was also discussed at Crescat Sententia, among other places.

My views on this matter can be found here:

The Supremacy Clause and bad precedent

(PDF warning).

I wanted to add, in addition to actually posting the essay, that writing about this has actually been quite interesting because I've actually learned something about how I like to write from doing so.

As soon as I saw Steve's post, I had an immediate reaction to it, I thought it was an interesting subject, and I had some initial thoughts. But - and this happens more often than you might think - having jotted down a few initial thoughts, I really couldn't frame a reply. So I just kept reading around the topic, seeing how others were responding and what points were being made. It really wasn't until I found something I could write an immediate response to (at Crescat, as it turned out) that I was able to coalesce my various thoughts into something coherent enough to post.

Even having done that, though, it was obviously not really a complete statement of where I was at. I've posted PDFs before, instead of authoring an actual blog post (see, e.g., Less nebulous than you'd think, 9/23/2005), and the reason for that is usually because I feel the need to either write at more length, and/or (usually and) because the issue is sufficiently complicated that I want to use footnotes fairly extensively, if only to keep track of my own thoughts. This was obviously one of those situations where there was a lot that was going to have to be worked out in the writing (see A thought on blogging and commenting, 12/20/2005), but even though I had several things to say, it really didn't and wouldn't get off the ground until I found that one angle that I could start building my thoughts around, even though, as it turned out, that section actually disappeared from the essay later in the drafting process.

I think having this idea of what it is I'm looking for, having a clearer idea of my own process, will make it a lot easier in future to get this stuff down onto paper and actually out on the blog. This essay is 12 pages, and that's really about the sort of length I'd like to be writing at for stuff like that. It's interesting to look back on stuff I wrote a year or two ago, and - while I don't want to make claims for this one - it's pretty obvious (I think, at least) that there is a progression, that there's improvement.

My dad warned me a couple of years ago that my prose was getting positively Dickensian, which - given that I detest Charles Dickens - is a heck of a thing to say. Hopefully, there's been progress away from that, i.e., even when writing (relatively) at length, I think my writing now is much more concise and efffective than it was.

Posted 14:05, 1/10/2006 by Simon | Filed under: ConLaw | Comment on this

Got it in one: just be honest about Roe

Verity from Southern Appeal says it perfectly:

Just say it! Alito's writings indicate that he believes Roe was wrongly decided and indicate that Roe should be overturned. Stop the hedging, rationalizing, and discounting of everything Alito has said. Just say it: Roe should be overturned. Roe was wrongly decided and for over thirty years it has created havoc by allowing five people to decide a policy question that should be left to the democractic process. Address the merits. Educate the public. And stop hiding behind the "that was 20 years ago, when he was an advocate," panty-waste cop-out.

Trying to say that Alito's opposition to Roe twenty years ago is water under the bridge is like Sen. Kyl refusing to take the credit TIME Magazine tried to give him for sinking the Miers nomination. It's a GOOD thing that he is against Roe! Stop trying to fool the public, and confront this issue head on. Roe was wrongly-decided, and should be overturned. Period. Let's have the debate, intead of this silly dance; as I noted two months ago:

It seems to me that a Republican nominee to the Supreme Court shouldn’t be going before the Senate Judiciary Committee and relying on slight of hand to bamboozle their way through questions on Roe. This implicitly seems to (mistakenly, in my view) concede the point that we are merely trying to obtain a policy-based result, rather than trying to correct a ghastly legal mistake which has corrupted Supreme Court nominations (and, by extension, Presidential elections) ever since. Instead, they should be going in there and calmly, dispassionately and respectfuly explaining precisely why Roe was wrongly decided, demolishing the myths that surround the case (and, following from that, what precisely overruling it would do, in practical terms), and commit themselves to upholding the Constitution of the United States, a pledge which inherently and inescapably requires their vote to reverse Roe. Stare decisis offers no defense against a wrong decision.

Posted 13:31, 12/6/2005 by Simon | Filed under: ConLaw | Comment on this

More conlaw

I have a series of comments over at Concurring Opinions covering my views on stare decisis, textualism and various other matters of ConLaw. Thoughts on the Eleventh Amendment and sovereign immunity can be found here.

Posted 13:15, 10/25/2005 by Simon | Filed under: ConLaw | Comment on this

Dissent in the wild: originalism, original intent and the 28th amendment

Originalism v. Original intent. My rough draft of a 28th amendment in response to the Roberts hearings.

Posted 08:52, 9/30/2005 by Simon | Filed under: ConLaw | Comment on this

Hamdi v. Rumsfeld

A fellow I enjoy debating on a message board I visit recently noted his dissatisfaction in Justice Scalia's dissent in Hamdi v. Rumsfeld. So we've been batting this back and forth for a couple of days. Just for fun, I'm going to collate and repost my reading on the case here. :) Not for the first time, I concur with Scalia's view, which he summarized thus:

"This case brings into conflict the competing demands of national security and our citizens' constitutional right to personal liberty. Although I share the Court's evident unease as it seeks to reconcile the two, I do not agree with its resolution. Where the Government accuses a citizen of waging war against it, our constitutional tradition has been to prosecute him in federal court for treason or some other crime. Where the exigencies of war prevent that, the Constitution's Suspension Clause, Art. I, §9, cl. 2, allows Congress to relax the usual protections temporarily. Absent suspension, however, the Executive's assertion of military exigency has not been thought sufficient to permit detention without charge. No one contends that the congressional Authorization for Use of Military Force, on which the Government relies to justify its actions here, is an implementation of the Suspension Clause. Accordingly, I would reverse the decision below." Hamdi v. Rumsfeld, 542 U.S. __ (2004), SCALIA, J., dissenting, at pp. 1-2.

John objects to Scalia's dissent, on the following grounds: "My objection to Scalia is twofold. The first is that he is wrong that Congress hasn't suspended habeas corpus. The did not issue a blanket suspension of habeas corpus, but they have allowed for the President to detain individuals who are in Al Qaeda, regardless of their citizenship. They did so in the Afghanistan War Resolution. They did not do it in Iraq, which is why the prisoners from Iraq have been treated as POWs under the Geneva Convention and those captured in Afghanistan have not. The second objection is that Scalia believes American citizens are secured their constitutional rights when they leave the jurisdiction of the United States. If this was true, Michael Fay could not have been beaten with bamboo. For practical reasons, its simply wrong that the Supreme Court has jurisdicition to even hear this case, much less rule that Al Qaeda gets due process". I can't support John's conclusions on either point. Let us take the simpler mattter first.

John contends that an American who goes abroad loses their constitutional rights, citing the case of Michael Fay, an American "who travelled to Singapore and was arrested for vandalism. He was sentenced to corporal punishment- being beaten with a stick of bamboo. This could never happen in the US, as corporal punichment applied by the Judiciary is unconstitutional. However, since the US Federal Courts had no jurisdiction over Singapore, they had no power to overturn the conviction or commute the sentence, and it would be crazy to say they did".

I dispute his underlying contention, and I see little or no corrolation between the Fay and Hamdi cases. Fay was arrested for the commission of a crime under the laws of the nation in which he was located, and was tried pursuant to that nation's legal system; consequentially, at no point during the commision, trial or punishment of the crime was he under US jurisdiction. It should go without saying that the United States cannot handily enforce the rights and priveleges of its citizens when its citizens leave the jurisdiction of the United States, but that in no way means that those rights are waived or suspended - they are merely beyond enforcement. However, Hamdi was arrested by US military forces. His rights, as I have just described, are conditional upon his citizenship of this nation, not his immediate locale - "it is the birthright of every American citizen when charged with crime to be tried and punished according to law"; Ex Parte Milligan, 71 US 2 (1866), at 119 - those rights may not be removed by government fiat - "citizenship is not subject to the general powers of the National Government and therefore cannot be divested in the exercise of those powers"; Trop v. Dulles, 356 U.S. 86 (1958), at 92; see also, Perez v. Brownell, 356 U.S. 44 (1958) (WARREN, C.J., dissenting); Osborn v. Bank of the United States, 9 Wheat. 738 at 827 - and his ability to insist on those rights, conditional upon being under US jurisdiction, which no-one contests that he was. Since, unlike Fay, Hamdi was under US jurisdiction following his arrest in Afghanistan, merely by being a US citizen and being physically under US jurisdiction, unless Congress had explicitly suspended the writ of habeas corpus (Milligan, supra, at 115-116), Hamdi has a legitimate right to assert the rights of any US citizen held in detention under US jurisdiction.

II

John also asserts that Congress has suspended the writ of Habeas Corpus, pusuant to Article I, §9 Cause 2 of the US Constitution, and that it did so in "the Afghanistan War Resolution". Although John doesn't specify it, the act of Congress which authorized the US action against Afghanistan in fall 2001 was S.J.Res.23, which I reproduce from the Library of Congress' text below:

SECTION 1. SHORT TITLE. This joint resolution may be cited as the `Authorization for Use of Military Force'. SEC. 2. AUTHORIZATION FOR USE OF UNITED STATES ARMED FORCES. (a) IN GENERAL- That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons. (b) War Powers Resolution Requirements-
(1) SPECIFIC STATUTORY AUTHORIZATION- Consistent with section 8(a)(1) of the War Powers Resolution, the Congress declares that this section is intended to constitute specific statutory authorization within the meaning of section 5(b) of the War Powers Resolution.
(2) APPLICABILITY OF OTHER REQUIREMENTS- Nothing in this resolution supercedes any requirement of the War Powers Resolution.

John contends that this language "gives the President the explicit right to use military and police force against individuals who support Al Qaeda. There's no other way to read that. This is adequate to suspend the habeas corpus rights of Hamdi. Congress did suspend habeas corpus in this limited fashion...The text of the resolution clearly contradicts their case. Congress gave explicit authority to Bush to use these powers.". I disagree. Congress retains the right to suspend habeas corpus - a writ of so little consequence to the Framers that it was the one writ specifically mentioned in the Constitution; a right so transient and triffling that Hamilton, quoting Blackstone, noted in Federalist 84, "confinement of the person, by secretly hurrying him to jail, where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore A MORE DANGEROUS ENGINE of arbitrary government" - but it cannot do so by mere inference. If Congress wishes to suspend habeas corpus, it must do so explicitly - and I'm baffled by how John can argue that their statement is "explicit" ("Congress gave explicit authority to Bush to use these powers"). I could grant some credibility to the argument that it is strongly implied, although I'd disagree with that point, too, but to say that Congress explicitly authorized suspension of habeas is ludicrous. On those occaisions in the past when Congress has suspended the writ, it has mentioned habeas corpus by name, and associated with it the verb "suspend". See, Fisher v. Baker, 203 U.S. 174 (1906); Milligan, supra, at 115. The presence or absence of such language in S.J.Res.23, or other related legislation, seems to be a reasonable standard by which to determine whether or not Congress has suspended the writ. None exists of which I'm aware. To say that Congress suspended habeas corpus requires the reading of new ideas into the text to justify a subsequently arising contingency - habitually, that's referred to as "judicial activism". Even the Court majority - with whose conclusion John presumably agrees, given your opposition to Scalia's dissent - doesn't even contest that the writ wasn't suspended by Congress:

"Though they reach radically different conclusions on the process that ought to attend the present proceeding, the parties begin on common ground. All agree that, absent suspension, the writ of habeas corpus remains available to every individual detained within the United States. U. S. Const., Art. I, §9, cl. 2 .... All agree suspension of the writ has not occurred here." Hamdi v. Rumsfeld, 542 U.S. __ (2004), per curiam, p.18

Now, arguably, in the current war on terror, Congress should suspend the writ, or at least, circumscribe its use. "If at any time the public safety should require the suspension of the powers vested by this act in the courts of the United States, it is for the legislature to say so". Ex parte Bollman, 8 U.S. (4 Cr.) 75, 101 (1807). The legislature has not thus spoken; it did not do so in S.J.Res.23, and the absence of Congressional suspension is not contested by the government nor any concurring or dissenting Justice of the Court in Hamdi. Therefore, Hamdi's constitutional rights remained in effect.

III

My conclusion, therefore, is that Hamdi retained his rights as a citizen, and was under jurisdiction of the US. Consequentially, thare are no constitutional grounds on which the court can rest its denial of a writ of habeas corpus. It may well be very unwise to do so, but the constitution was never designed to protect America from terrorism - it was designed to protect Americans from government.
Scalia concluded: "It follows from what I have said that Hamdi is entitled to a habeas decree requiring his release unless (1) criminal proceedings are promptly brought, or (2) Congress has suspended the writ of habeas corpus. A suspension of the writ could, of course, lay down conditions for continued detention, similar to those that today's opinion prescribes under the Due Process Clause. Cf. Act of Mar. 3, 1863, 12 Stat. 755." Hamdi dissent, supra at §V, p. 21 "There is a certain harmony of approach in the plurality's making up for Congress's failure to invoke the Suspension Clause and its making up for the Executive's failure to apply what it says are needed procedures--an approach that reflects what might be called a Mr. Fix-it Mentality. The plurality seems to view it as its mission to Make Everything Come Out Right, rather than merely to decree the consequences, as far as individual rights are concerned, of the other two branches' actions and omissions. Has the Legislature failed to suspend the writ in the current dire emergency? Well, we will remedy that failure by prescribing the reasonable conditions that a suspension should have included. And has the Executive failed to live up to those reasonable conditions? Well, we will ourselves make that failure good, so that this dangerous fellow (if he is dangerous) need not be set free. The problem with this approach is not only that it steps out of the courts' modest and limited role in a democratic society; but that by repeatedly doing what it thinks the political branches ought to do it encourages their lassitude and saps the vitality of government by the people." Hamdi dissent, supra at §V, pp. 24-24. I concur with Justices Scalia and Stevens.

Posted 19:43, 4/12/2005 by Simon | Filed under: ConLaw | Comment on this