Archive | November, 2013

Zachary Price on the Constitution and Enforcement Discretion

People have been passing around this column by Charles Krauthammer criticizing President Obama’s recent campaign of enforcement discretion (with respect the Affordable Care Act and otherwise), calling it “a gross violation of his Article II duty to take care that the laws be faithfully executed.” It reminded me that I’ve been meaning to call attention to an important new article on this subject — Enforcement Discretion and Executive Duty, by UC-Hastings’s Zachary Price. for those interested in a much deeper dive into the text, history and tradition relevant to enforcement discretion, I highly recommend it.

Here’s the abstract (excerpts from the discussion of the ACA are below the fold):

Recent Presidents have claimed wide-ranging authority to decline enforcement of federal laws. The Obama Administration, for example, has announced policies of declining to charge certain drug offenses, abstaining from investigation and prosecution of certain marijuana crimes, postponing enforcement of key provisions of the Affordable Care Act, and suspending enforcement of deportation laws against certain undocumented immigrants. While these examples highlight how exercises of executive enforcement discretion — the authority to turn a blind eye to particular legal violations — may effectively reshape federal policy, prior scholarship has offered no satisfactory account of the proper scope of, and constitutional basis for, this putative executive authority. This article fills that gap.

Through close examination of the text, history, and normative underpinnings of the Constitution, as well as relevant historical practice, the article demonstrates that there is indeed a constitutional authority of enforcement discretion — but it is both limited and defeasible. Presidents may properly decline enforcement of civil and criminal prohibitions in particular cases, notwithstanding their obligation under the Take Care Clause to ensure that “the Laws be faithfully executed.” But this authority does not extend to prospective licensing of prohibited conduct,

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Hobby Lobby Week Next Week

The Supreme Court just agreed to decide two new religious exemption cases, Sebelius v. Hobby Lobby Stores, Inc. and Conestoga Wood Specialty Store v. Sebelius. In both, the owners of closely held, family-owned corporations hold religious beliefs that it is wrong to use any devices or products that sufficiently risk killing a fertilized embryo, including by preventing implantation of the embryo. They also believe that it is wrong for them to be complicit in such killing of embryos, including by providing insurance plans for their employees that cover implantation-preventing contraceptives. They claim that, under the Religious Freedom Restoration Act of 1993, they should be allowed to offer their employees insurance plans that do not cover such implantation-preventing contraceptives.

There are a lot of related and complicated legal issues involved in those cases, so I thought I’d blog several posts about them next week, one on each of the main issues. I don’t have a bottom-line prediction on how the cases will come out, nor do I have firm views on how they should come out, largely because the compelling interest test that RFRA prescribes in such cases is so vague. (I’m also something of a middle-of-the-roader on religious exemption questions; I’m one of the few people, for instance, who has argued in print that both the Employment Division v. Smith rejection of constitutionally mandated religious exemptions and the Religious Freedom Restoration Act’s statutory call for religious exemptions are generally correct.) But in any event, I hope the analysis in the posts will be informative and perhaps even interesting. [...]

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The Prospect of Scottish Secession from Britain

One of the major issues on the British political agenda while I have been in the UK this week giving talks about Democracy and Political Ignorance is the prospect that Scotland might become an independent nation separate from the United Kingdom. A referendum on independence is scheduled for September 2014. A recent poll shows the “no” side with a substantial but not insurmountable 47-38 lead.

If Scotland does secede, in the short run Scots might suffer significant economic pain. Scotland is historically a net recipient of funds from the UK government, though North Sea oil has arguably offset that in recent years. If oil revenue falls (and possibly even if it doesn’t), Scotland might have to either raise taxes or cut government spending significantly. In addition, an independent Scotland might not be allowed to rejoin the European Union, if Spain decides to veto its application in order to deter secession by Catalonia. Exclusion from the EU might subject the new nation to trade barriers from some of it’s most important trading partners.

In the long run, however, an independent Scotland might actually improve its economic performance if the cutoff of UK funds forces it to adopt more free market-oriented policies. This is what happened with Slovakia after the breakup of the Czechoslovakia. Ironically, the Scottish government is seeking independence in part because they want to pursue more left-wing economic policies than the present UK government does, which may not be possible, given the tighter fiscal constraints an independent nation might face. Another potential irony is that Britain’s Conservative Party – historically among the strongest opponents of Scottish independence – would benefit politically if independence actually happened, because most of Scotland’s seats in parliament are held by the rival Labor Party.

In my view, the main criterion [...]

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“During the Recess”

The Recess Appointments Clause, recall, says: “The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.”

Several readers have asked about which verbs are modified by the phrase “during the Recess.” It has generally been thought that “during” modifies “happen” — and sensibly enough, since the two words are right next to one another. Yet it also has generally been thought that the President must make the appointments during the recess, too. One way (not the only way, but the most straightforward way) for that to be true is if the “during” clause modifies both sets of verbs — “happen” as well as “have/fill.”

Some commenters on this post have suggested that this is simply not possible as a matter of text. But it seems to me that one can think of other parallel sentences where it is indeed permissible, given the context and common sense, to think that the “during” clause modifies both sets of verbs.

Here are a few I thought of:

The soldiers were authorized to shoot any Germans they encountered in the trenches during the war.

It seems permissible to read this to be limited to those who are both shot and encountered during the war — you can’t shoot somebody 20 years later just because you saw them in the trenches back then.

The trial judge may exclude from the courtroom any spectator who is disruptive during the trial.

Again, it seems permissible to read “during the trial” to modify both “exclude” and “is disruptive.” The judge couldn’t necessarily exclude people who’d been disruptive some other time, and he couldn’t necessarily exclude people permanently from that room once the trial was over. [...]

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Jim Harper and My Essay on the Unconstitutionality of the NSA Bulk Data Seizures

The Federalist Society’s journal Engage has an interesting Symposium on the National Security Agency’s Bulk Data Seizures and FISA Surveillance Programs.  The symposium includes my very brief essay with Cato’s Jim Harper, Why NSA’s Bulk Data Seizures Are Illegal and Unconstitutional.  In it we contend that:

Rather than airy and untethered speculations about “reasonable expectations,” the courts should return to the traditional—and more readily administrable—property and contract rights focus of Fourth Amendment protection reflected in the majority opinion in Katz. Courts should examine how parallels to the walls of the home and the phone booth in Katz conceal digital information are employed by the people to preserve their privacy.

An inquiry into the physical and legal barriers people have placed around their information — for example, by using passwords to restrict access to their email, or entering into terms of service agreements that include privacy protections — can generally answer whether they have held it close. This establishes the threshold of personal security that the Fourth Amendment requires a warrant to cross. No distinction should be made between sealing a letter before handing it to the postman, taking a phone call in a secluded phone booth, password-protecting one’s email, or selecting a communications company with a suitable privacy policy.

In short, the physical and legal barriers people place around their information define both their actual and “reasonable” expectations of privacy and should provide the doctrinal touchstone of the search warrant requirement. When one has arranged one’s affairs using physics and the law of property and contract to conceal information from preying eyes, government agents may not use surreptitious means and outré technologies like thermal imaging to defeat those arrangements without obtaining a warrant that conforms to the requirement of the Fourth Amendment. In Jones, the Court

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Originalist Scholars Amicus Brief in NLRB v. Noel Canning

Last week, I joined with Michael Ramsey (San Diego) Michael Rappaport (San Diego), Chris Green (Mississippi), Gary Lawson (Boston University), John McGinnis (Northwestern) and Todd Zywicki (George Mason) on an amicus Brief of Originalist Scholars in NLRB v. Noel Canning.  Much of the evidence cited is taken from Michael Rappaport’s path-breaking 2005 article, “The Original Meaning of the Recess Appointments Clause,” 52 UCLA L. Rev. 1487 (2005).  You will note that Mike published his originalist critique of current practice during the mid-point of the Bush administration.

Of course, the merits of our legal analysis can only be fully assessed after considering counter-arguments and contrary evidence presented by those who may disagree.  In this brief, we consider the originalist arguments presented by the government. (In their brief, the Constitutional Law Scholars also powerfully respond to other non-originalist arguments based on subsequent practice. Will is excerpting the brief here.) [To read the summary of the argument click Continue Reading below.]

Our brief not only provides support for the decision reached by the Court of Appeals. It exemplifies how an original public meaning analysis is a legal analysis of the meaning of language at the time of its enactment that is well within the competence of lawyers and judges to present and assess.  It also illustrates how originalist scholarship is necessary for high quality originalist judicial decision making. It is unrealistic to expect judges to do the work that Mike and others have done on the original meaning of the Recess Appointments Clause.  But judges are quite competent to assess the comparative strength of this evidence when weighed against contrary arguments, the way they weigh other evidence that is presented to them in our adversary legal system.  Contrary to the common complaint that legal scholars produce writings of value only to [...]

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How Obamacare Should Honestly Have Been Defended

Over on The Daily Caller, Josh Blackman offers a tongue-in-cheek parody Thanksgiving Address that could have been given by President Obama in November 2009 to honestly defend the yet-to-be-released Senate originated Affordable Care Act.  But his parody is fair and nuanced enough to provide a template for what an honest description and defense of Obamacare would have looked like.  Indeed, it is based on what the administration and its defenders have argued both in court and in the political sphere since the law was passed, and it would not take much tweaking to convert it from a parody into a good faith presentation and honest defense of the ACA.

So the question is, could Obamacare been enacted had it been accurately described and defended this way before its passage?  And, if the answer to this is “No,” what does this tell us about the “democratic legitimacy” of the ACA?  Here is a taste:

Our healthcare system is broken. There are over 40 million people without insurance. At the same time, it is not fair for some people to have very generous plans that are subsidized by employers. Further, it is also not fair for young and healthy people to have cheap, bare-bones plans that do not contribute to the insurance pools. What we need is a way to equalize things.

So, under the Affordable Care Act, generous health insurance benefits, so-called “Cadillac plans,” will be heavily taxed to create incentives for your employer to drop them, so you will be forced to buy normalized insurance on the health care markets. Bare-bones plans that only cover catastrophic needs will not be compliant with the ACA. If you have one of these, particularly if you are on the individual market, it will be cancelled. Plus lots of other modest plans will

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Thanksgiving Wishes from Washington and Jefferson

Happy (American) Thanksgiving to all readers! And some Thanksgiving thoughts from Presidents Washington and (below the fold) Jefferson:

President Washington:

Whereas it is the duty of all Nations to acknowledge the providence of Almighty God, to obey his will, to be grateful for his benefits, and humbly to implore his protection and favor …

Now therefore I do recommend and assign Thursday the 26th day of November next to be devoted by the People of these States to the service of that great and glorious Being, who is the beneficent Author of all the good that was, that is, or that will be … that we may then unite in most humbly offering our prayers and supplications to the great Lord and Ruler of Nations and beseech him to pardon our national and other transgressions– to enable us all, whether in public or private stations, to perform our several and relative duties properly and punctually–to render our national government a blessing to all the people, by constantly being a Government of wise, just, and constitutional laws, discreetly and faithfully executed and obeyed–to protect and guide all Sovereigns and Nations (especially such as have shewn kindness unto us) and to bless them with good government, peace, and concord–To promote the knowledge and practice of true religion and virtue, and the encrease of science among them and us–and generally to grant unto all Mankind such a degree of temporal prosperity as he alone knows to be best.

President Jefferson:

I consider the government of the U S. as interdicted by the Constitution from intermeddling with religious institutions, their doctrines, discipline, or exercises. This results not only from the provision that no law shall be made respecting the establishment, or free exercise, of religion, but from that also which reserves to

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Thanksgiving for Purported Pirates in Russia and the U.S.

It is a happy Thanksgiving for defendants in two very different piracy cases – the trial of Ali, a Somali education official arrested while attending an education conference in the U.S., and the crew of Greenpeace’s ship Arctic Sunrise, arrested by Russia last month while minding Russia’s business on an oil rig. I’ve written about both here before.

Both very different cases have one thing in common – aggressive charges of piracy for conduct that has never been treated as such.

Russia had arrested the Greenpeace provocateurs on the high seas for piracy, though their actions clearly did not constitute the crime. However, piracy is the only legal basis for seizing a vessel on the high seas. Afterwards,hooliganism charges were substituted for piracy, making the “Arctic 30” a kind of international Pussy Riot.

Holland, the flag state, brought Russia before the International Tribunal for the Law of the Sea, which just ordered Moscow to promptly release the vessel and crew. While the latter are now out on bail (but must stay in Russia), Russia has announced that it will not comply with the prompt release order (see Julian Ku’s discussion). Interestingly, Russia had complied with ITLOS rulings in two prior cases. But that was before the U.S.’s withdraw from global power invited Russia to strut like a Power again. (And its neighbors have noticed, and already turned from the West and come to kiss the ring.)

I’ve written about Ali’s case before: he was charged with piracy on the high seas, though his only role was as an ex post negotiator. No one had ever been charged for “high seas” piracy for after-the-fact dry land activity – the essence of piracy is its location. And this is especially true in a universal jurisdiction [...]

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China Asserts Air Defense Identification Zone Around Disputed Pacific Islands

Julian Ku at Opinio Juris notes that while much of the foreign policy community is focused on the Iran deal, China has undertaken a significant political escalation of its dispute with Japan over the Senkaku (or Daioyu) Islands, by invoking a so-called Air Defense Identification Zone (ADIZ) around the disputed islands.  The Wall Street Journal and other newspapers reported on it yesterday, noting criticism from both Washington and Tokyo; the response from Beijing, Julian adds, is for the US to mind its own business.   The WSJ quoted a “senior U.S. official” saying Sunday that there would likely be a demonstration of American military resolve to continue operating in the area of the islands without Chinese interference. The unspecified display, added the Journal’s story, “isn’t likely to involve a direct military confrontation.”

That demonstration came Monday night in the form of two US military aircraft, on what the Defense Department described as long-scheduled training mission, according to NBC news:

“We will not in any way change how we conduct our operations,” Pentagon spokesperson Col. Steve Warren said, adding that the U.S. maintains that the newly expanded ADIZ is in international waters. Monday evening ET, two B-52 bombers took off from Anderson Air Force Base in Guam as part of an ongoing training exercise called Coral Lightning Global Power Training Sortie. The bombers were in the ADIZ for less than one hour, Warren said. This was a “long-planned training exercise,” and the U.S. did not inform the Chinese of their flight plan, Warren said. The flights occurred without incident, Warren said, adding that there was no reaction, no Chinese aircraft were spotted in the air, and the Chinese did not contact the U.S. military about the flight.

What’s an ADIZ?  Speaking loosely, it’s a zone of airspace beyond a coastal state’s [...]

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Another ObamaCare Delay: SHOP Exchange Enrollment

Politico reports:

The Obama administration today announced a one year delay of online enrollment for small businesses looking to purchase health coverage through federal Obamacare exchanges, another high-profile setback for

It’s the second delay for online small business enrollment, which the administration had said would begin this month. . . .

The administration originally delayed online enrollment in the federal-run small business exchanges just days before the failed Oct. 1 launch of At the time, HHS said online enrollment would be available “sometime in November.” But now, it won’t be ready until November of next year.
The latest delay applies only to the federal-run SHOP exchanges in almost three dozen states. With a few exceptions, SHOPs in states running their own exchanges have had a smoother rollout.

Wonkblog has more. [...]

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The Rule of Lenity Versus Chevron Deference

In his concurring opinion today in Carter v. Welles-Bowen Realty, Judge Sutton addresses a very interesting legal question: If an administrative agency is charged with administering a statute with criminal sanctions, and the agency adopts a broad reading of the statute that ordinarily would be entitled to Chevron deference absent the criminal sanctions, does the rule of lenity that applies to the interpretation of criminal statutes change what interpretation the court must give to the statute?

Great issue. Off the top of my head, I think Judge Sutton’s answer is right. Congress does not delegate the meaning of criminal statutes to the executive branch. If an agency has promulgated an interpretation of the elements of a crime, the rule of lenity trumps Chevron; the agency doesn’t have interpretive authority over the crime, and Chevron is inapplicable. Granted, some Westlaw-surfing reveals an apparently contrary decision dealing with sentencing, Yi v. Federal Bureau of Prisons, 412 F.3d 526, 353 (4th Cir. 2005), but I think Yi is mistaken. Note that the agency’s view would still be controlling when Congress adds a general criminal prohibition that violating an agency regulation is a crime. See, e.g., 16 U.S.C. § 3. In that case, the agency is enacting its own regulation within its zone of delegation, though, not interpreting a statute.

Thanks Howard Bashman for the link. [...]

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The Lon Fuller Website

I was googling around yesterday and stumbled across a website that I think is a pretty cool idea:, a website created by the estate of the law professor and legal theorist Lon Fuller. Fuller died in 1978, but his estate set up the website to have a short biography of Fuller (with some personal pictures) and a list of his major works. Unfortunately, the links to Fuller’s scholarship are still a work in progress — the site hosts only two of the articles, even though others can be found online. And when I tried to submit a message to the site, it didn’t go through. But implementation aside, the basic idea of setting up and maintaining a website to feature a late professor’s scholarly works seems like a fitting way to honor that professor.

I gather that SSRN postings are maintained after death, as well — see, for example, the SSRN pages of the late Bill Stuntz and Larry Ribstein. So SSRN homepages can serve at least part of that function, too. But I also like the idea of the personal website with links that can be maintained over the long run, given that you never know what will happen to SSRN. [...]

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Student Prevented from Handing Out the Constitution… On Constitution Day

Greg Lukianoff and Robert Shibley of FIRE have come across a doozy of a free speech case–a Modesto Junior College student who was prevented from distributing copies of the Constitution on Constitution Day.

The student, a former Army veteran, recorded the incident.  Posted here.

One of the illuminating things about this video is the combination of cluelessness and arrogance of the petty bureaucrats that run student life on university campuses these days.  What a classic line that captures the whole incident in a nutshell (uttered by the university bureaucrat in charge of handing out the permits):  “[We have] two people on campus right now, so you’d have to wait until either the 20th, 27th, or you can go into October.”

FIRE and David Wright Tremaine are representing the student in a legal challenge.  More info here.

One of the real oddities of the entire speech code issue is the way in which these policies seem to come into being and then are implemented by university bureaucrats deep in the bowels of these massive student life bureaucracies on campus.  Although free speech obviously has important educational implications, faculty never get a chance to review and approve these policies.  They just emerge from some undifferentiated mass of student life bureaucrats.  At one point it is a “free speech zone” and some other day it arises as some vague anti-harassment policy.  It is like some sort of weed that is carried with this modern generation of professional deans from one campus to another and it just creeps up out of nowhere.  Rarely does it seem to be the case that faculty or senior administrators have approved or are even aware of the content of these policies.

I’ve actually been trying for years now to try to get George Mason’s speech [...]

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Understanding the Enemy

The latest Snowden leak story is in the Huffington Post.  It says that NSA thought about exposing the hypocrisy of Islamic extremist recruiters by revealing their financial greed or predatory sexual habits.  I’m quoted in support of considering such tactics, but the backstory of the interview may be more interesting.

When one of the authors, Ryan Grim, called me for comment, he said that while Glenn Greenwald was transitioning to his new Omidyar-funded venture he was temporarily publishing his Snowden leaks with HuffPo. So when he asked for my take on the NSA story, pretty much the first words out of my mouth were, “Why wouldn’t we consider doing to Islamic extremists what Glenn Greenwald does routinely to Republicans?”  The story quotes practically everything I said to Grim except that remark, even though I returned to the point a couple of times and emphasized that it summed up my view.

I don’t think HuffPo cut the quote because they ran out of electrons.  The article itself is so tediously long that I defy anyone to read every word in a single go.

Nor because my remark was inaccurate.  It turns out that Glenn Greenwald has written an entire book devoted to exposing the contradiction between Republicans’ ideology and their private lives.  In Greenwald’s words,  “While the right wing endlessly exploits claims of moral superiority … virtually its entire top leadership have lives characterized by the most decadent, hedonistic, and morally unrestrained behavior imaginable …[including] a string of shattered marriages, active out-of-wedlock sex lives, and highly ‘untraditional’ and ‘un-Christian’ personal lives [endless detail omitted].” His book certainly makes the NSA memo sound restrained and cautious, but both are motivated by the same idea.

Grim and Greenwald very likely cut the quote because it would have undermined the narrative of the [...]

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