Author Archive | Will Baude

Hasen on the New Proposed Voting Rights Act

Election law maven Rick Hasen writes:

I have now had a chance to review the text the Voting Rights Amendments Act of 2014 introduced today by Representatives Sensenbrenner and Conyers (with parallel legislation being introduced by Senator Leahy in the Senate). I believe parts of the VRAA are likely constitutional (including the new coverage formula), parts are likely unconstitutional (new bail in), and most of it is sensible policy. But I am very pessimistic about the legislation passing out of the House. Ironically, I think if this were the bill introduced in 2006 to amend the VRA, it would not only have passed both Houses of Congress and become law, the Supreme Court would have been very likely to uphold the measure as constitutional despite its constitutional problems. I’ll address each point in turn. . . .

While I have read the bill, I haven’t yet analyzed it as closely as Hasen has. But I am cautiously pleased by it. […]

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Recapping Daimler Chrysler AG v. Bauman

I have a post at SCOTUSBlog recapping yesterday’s decision in Daimler Chrysler AG v. Bauman. It begins:

Readers of the Supreme Court’s decision yesterday in Daimler Chrysler v. Bauman may have learned two things: First, it is increasingly difficult to establish general jurisdiction over a corporation for conduct unrelated to the forum; second, the Court ultimately resolves the issue it wants to, which may not be the one the parties focused on. . . .

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Printz, Commandeering, and the Federalist

Today was the second day of Originalism and its Critics, which I’m co-teaching with Eric Posner. We read Printz, Jud Campbell’s article on commandeering, and an article by John Manning on the use of the Federalist Papers. Two general thoughts on those readings:

1. On Printz and commandeering, I have already said that I think Campbell’s article is a tour de force. By showing that the context of commandeering is the opposite of what many have assumed, he shows that there is serious doubt that the majority opinion in Printz is correct. To be sure, this isn’t a definitive point; one could still construct an originalist argument under which commandeering is constitutionally suspect, but it will be much more strained.

That leaves the question of whether we should be heartened or troubled to learn that the Supreme Court can make historical mistakes. Obviously we would prefer that the Court not make mistakes, though I am not sure that the optimal error rate is zero.

On balance, I would vote for heartened. It suggests that there is sometimes something actually falsifiable going on, and therefore that originalism is not infinitely malleable. That said, I doubt that contemplation of whether to overrule a precedent happens in a principled way — by originalists or non-originalists. That, I find more troubling.

2. It is also interesting to think about why the Federalist is such a totemic item of legal citation and whether it should be. Of course the standard answer is that it is important not to exaggerate the importance or neutrality of the Federalist and that academics ought to look at all relevant historical materials, and not privilege the Federalist simply because it is convenient. (I should also flag Seth Barrett Tillman’s clever essay pointing out the obvious errors in […]

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Methodological Consistency in Noel Canning

One theme of the amicus brief I helped write in Noel Canning was the need for a consistent treatment of text, history, and modern practice. If the executive branch wishes to argue that modern practice trumps the text and early history on questions 1 and 2 (“the recess” and “happen”), then it should be stuck with modern practice with respect to question 3 (pro-forma sessions).

I was pleased to see Justice Kagan express a very similar sentiment during yesterday’s oral argument:

JUSTICE KAGAN: General, I think that [reliance on modern practice is] a really strong argument, but I have to say I’m not sure it applies consistently throughout each of the three claims that you make.

Because if you are going to rely on history and on the development of an equilibrium with respect to what “happens” means, and if you are going to do that again with respect to whether intra-session recesses are included, then it seems to me you also have to look to history and the development of an equilibrium with respect to Congress’s definition of its own power to determine whether they are in recess or not.

In other words, your third argument about pro forma sessions, the history is entirely on the Senate’s side, not on your side. And if we’re going to take a kind of continuing practice and the development of equilibrium seriously, you might win on questions 1 and 2 and then lose on question 3.

Along very similar lines, over the weekend I published an op-ed in Forbes arguing that “regardless of whether one agrees with originalism, the appointments are still unconstitutional.” […]

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Utah Same-Sex Marriages Valid for Purposes of Federal Law

A few minutes ago, Attorney General Holder announced that Utah same-sex marriages “will be recognized as lawful and considered eligible for all relevant federal benefits on the same terms as other same-sex marriages.” This is even though “the governor has announced that the state will not recognize these marriages pending additional Court action.”

This may sound a little strange — didn’t the federal government tell us that marital validity was a question of state law? — but from what I can tell, the strangeness is mostly a consequence of the legal position taken by the state of Utah. Yesterday the Utah Attorney General told clerks that “Based on our analysis of Utah law, the marriages were recognized at the time the ceremony was completed,” and further emphasized that it wanted to facilitate “same-sex couples who solemnized their marriage prior to the stay to have proper documentation in states that recognize same-sex marriage.” Hence it sounds like Utah takes the view that the marriages were in fact permitted by Utah law during the pendency of the stay litigation.

Whether that view of Utah law is correct is an interesting fed. courts problem, but I can see why the Department of Justice feels entitled to rely on the Utah Attorney General’s statement of Utah law. The federal government’s (mostly) consistent current position is that a marriage counts for federal law purposes if it was lawful under state law at the time of celebration, and today’s announcement appears consistent with that position.

(Of course, whether that more general reliance on state law at the time of celebration is correct is also an interesting question, and the subject of this article.)

UPDATE: Ed Whelan has a more skeptical assessment of Attorney General Holder’s advice. He also discusses the Utah announcement (which a separate […]

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Further Thoughts on “During the Recess”

A while ago, I wrote a post about the grammar of the Recess Appointments Clause, which began:

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. . . .

Professor Michael Herz has a new post up on Balkinization, responding to mine. It is a long post, which those interested probably ought to read in full, but here is the central claim:

Baude, Hartnett, and others have all posed the question as being whether “during the Recess” modifies only “Vacancies that may happen” or also “The President shall have the power to fill up.” But there is a third alternative. The phrase “during the Recess” could modify only “fill up” and simply not apply to “Vacancies that may happen” at all.

I would suggest that the clause can

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ABA Teleforum on Recess Appointments Friday

If you haven’t yet heard enough from me about Noel Canning and recess appointments — or if you want to actually hear me talk rather than just read me — I will be doing a teleforum for the American Bar Association on the case on tomorrow morning at 11:30 EST. (You could catch much of it before leaving for to see co-blogger Nick’s debate at Cato.)

I will be discussing it with Doug Kendall of the Constitutional Accountability Center, an important organization that argues that the text and history of the Constitution can be used to support progressive causes. Kendall and the Center also filed an amicus brief in Noel Canning (supporting the executive branch’s position).

At any rate, this flyer contains the details for those interested. To get the call-in number you need to sign up in advance, but you don’t need to be an ABA member (or a lawyer) — you can just leave that part of the form blank. […]

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Heller As an Advertisement for Originalist Methodology

Eric Posner has posted a few comments on our first class on originalism, including his thoughts on Heller:

It seems to me that the text of the Second Amendment suggests that the right to bear arms is tied to serving in a militia, though not unambiguously, and that the exhaustive historical research discussed by the Court does not resolve the ambiguity one way or the other. A general preference for allowing voters to make up their own mind, the absence of any allegation or evidence of political failure, a relevant precedent if not a strong one, and a very long history of gun control legislation across the country all point to upholding the statute. Both Scalia’s and Stevens’ opinions are horrible messes. Scalia’s parsing of the text is wooden and ludicrous. Both of them select the evidence they like and interpret it tendentiously. Neither show any feeling for history. The opinions are tedious, pompous anti-models of judicial writing, no advertisement for the method of originalism.

It will probably be no surprise to readers that I have a different view. It is true that the opinions in Heller are very long, and go into much more historical detail than Supreme Court opinions usually do. The length and density of the opinions is unfortunate in one sense. It makes the historical questions seem much harder, or much more intractable, than they really are if you sit down and go through the materials carefully. On the other hand, shorter more engimatic opinions have costs too, because then the Court is accused of going too fast, not explaining itself, etc.

(I also wish that the Heller opinions had been shorter because then it might have been feasible to assign Larry Solum’s excellent article on Heller and interpretive methodology.)

In any event, it seems to […]

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NYU Journal of Law and Liberty’s Supreme Court Review-Preview

The newest issue of the NYU Journal of Law and Liberty is available online. It contains their special Supreme Court Review-Preview, which in turn contains my short article, Interstate Recognition of Same-Sex Marriage after Windsor, which I’ve mentioned here before. It begins:

Last June, the headlines said that the Supreme Court’s decision in United States v. Windsor struck down the Defense of Marriage Act. But that is only half true. The Defense of Marriage Act had two important provisions. Section Three defined “marriage” for purposes of federal law as being limited to the union of one man and one woman. It was invalidated in Windsor. But the Act’s other section, Section Two, says that states are not required to recognize one another’s same-sex marriages. Section Two was not invalidated, but it may be soon.

The Review-Preview also contains interesting-looking articles by Fernando Teson, Barry Friedman, Ilya Shapiro, Peter Shane, and by co-bloggers David Bernstein and Nick Rosenkranz. Richard Epstein wrote the introduction.

(I haven’t yet figured out how to download a PDF from the journal website, but the final version of mine is also on my SSRN page.) […]

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Michael Rappaport on the Nonoriginalist Arguments for Broadening the Recess Appointments Clause

Those who have been following the recess appointments litigation are probably aware of the extensive originalist arguments that the Recess Appointments Clause is limited to appointments that arise (“happen”) while the Senate is in recess, and that “recess” means that the Senate is not in session. Those arguments were made by University of San Diego professor Michael Rappaport in a 2005 law review article and have been widely cited by the courts and litigants in the Noel Canning litigation. (And who says law review articles aren’t relevant?)

Now Professor Rappaport has written a new article on recess appointments, which has just gone up on SSRN. This one addresses the non-originalist arguments for departing from the original meaning of the clause. Here is the (lengthy) abstract:

The Constitution requires officers to be appointed through a process of presidential nomination and senatorial consent, but the Recess Appointments Clause allows the President alone to make temporary appointments during Senate recesses. In this way, the President can fill offices even if the Senate is not available to confirm a nominee.

A key question is how broad the President’s recess appointment authority is. In a 2005 article, I argued that the original meaning of the Clause provides narrow authority to the President. The executive branch, however, interprets the Clause much more broadly.

If the executive’s interpretation is inconsistent with the original meaning, then how do its defenders seek to justify it? The main method has been to argue that various nonoriginalist considerations indicate that the executive’s broad interpretation should be followed. In this article, I examine the principal nonoriginalist arguments that might be made and show that none of them provides a persuasive case for departing from the original meaning.

A common argument made against following the original meaning of a provision is based

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My New Class, Originalism and its Critics

My new colleague Eric Posner has a post on his new blog about a class that we will be teaching together this quarter, Originalism and its Critics:

I have long been skeptical of originalism, and my interest in it is more sociological than intellectual. I hope to learn from this seminar why originalism is appealing to so many people (but mainly conservatives), and why it plays such an important role (at least, as a matter of rhetoric) in constitutional politics. If you are interested, here is our syllabus (Originalism and Its Critics syllabus dec. 12). I will post reactions to the articles as I read them, and perhaps Will will post his own reactions at the Volokh Conspiracy where he blogs.

On Twitter, Steven Duffield asks why nothing by Robert Bork was included. The short answer is that quarters are short, and reading assignments need to be manageable.

The longer answer probably reflects my own bias about what is important for understanding originalist scholarship and jurisprudence today. Bork was of course very important at the time that he wrote, but I tend to think that most of his important insights have filtered into the next generation of scholarship (some of which is written by his former students). Moreover, I think some modern criticisms of originalism tend to misfire — at least to those who haven’t made up their minds already — because they are taking aim at the earlier generation of scholarship (like Bork’s) rather than the next generation, which has modified and improved on it.

In any event, I’m very excited about the class! […]

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Christian Burset on William Baude on Federal Eminent Domain

Last year I published an article in the Yale Law Journal arguing that the Constitution did not give the federal government the power of eminent domain. The Necessary Proper Clause was originally understood not to implicitly grant “great” powers to the federal government, and I argue that eminent domain (at least over land) was best understood as an example of a great power. The Takings Clause, passed a few years later, was not understood to grant the federal government any new powers. And from the Founding until the Civil War, the federal government never exercised a direct power of eminent domain in the states, instead relying on states to take land for any federal project that needed it. (Ilya critiqued the article here.)

Now the California Law Review’s online supplement has published a substantial response to my piece by Christian Burset, a law and history student at Yale. My thoughts are below the fold. His piece begins:

This Response critiques Baude’s historical account. He is absolutely right that the “great powers” doctrine needs more sensitive historical treatment, and he has greatly advanced our understanding of that history by recovering the lost case against federal takings. But he takes his case too far in arguing that from the Founding to the Civil War, “the federal government was not understood to have the power to exercise eminent domain inside a state’s borders.”

More generally, Baude, like his scholarly predecessors, errs in searching for a single historical understanding of federal takings. Until the Supreme Court settled the issue in Kohl, there was no consensus on the matter. Debate emerged in the 1780s and quickly became entangled with broader questions of federal power, slavery, and states’ rights. Baude rightly argues that Kohl was the first case to declare definitively the federal government’s

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The Limited(?) Nature of the Ohio Same-Sex Marriage Decision

Like Jonathan (posting directly below) I saw a lot of early reports suggesting that Judge Black, in the Southern District of Ohio, had invalidated Ohio’s ban on same-sex marriage. But Chris Geidner has a link to the actual decision, and as a technical matter it is slightly more limited: it invalidates Ohio’s ban as applied to those who have “valid same-sex marriages from other jurisdictions.”

This makes more sense. Judge Black had already issued a decision that said basically the same thing a few months ago. I discuss that decision (criticizing it in part and endorsing it in part) in my latest article in the NYU Journal of Law and Liberty’s Supreme Court issue: Interstate Recognition of Same-Sex Marriage after Windsor. This is a right to remain married when you travel, not a right to get married in Ohio.

That said, there is a footnote toward the end of Judge Black’s decision that makes clear that he would also declare a general right to same-sex marriage in Ohio if he had a chance:

As a final note, although the question of whether Ohio’s refusal to grant same-sex marriages also violates Ohio same-sex couples’ right to due process and equal protection is not before the Court in this case, the logical conclusion to be drawn from the evidence, arguments, and law presented here is that Ohio’s violation of the constitutional rights of its gay citizens extends beyond the bounds of this lawsuit.

But as a technical matter, the judge acknowledges that question was outside of the scope of his decision. Ohio clerks should not start issuing marriage licenses to same-sex couples.

Finally, I want to say that I’ve repeatedly noticed and appreciated the reporting of Chris Geidner in all of these same-sex marriage decisions over the past six months. More […]

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Atlantic Marine and the Sachs Brief: A Post-Mortem

The Green Bag has picked, as an example of “exemplary legal writing,” Professor Stephen Sachs’s amicus brief in Atlantic Marine v. U.S. District Court (previously discussed here).

This reminds me that I didn’t have a chance to write a post when the Supreme Court decided Atlantic Marine a few weeks ago. The decision was unanimous and it did not adopt the Sachs position. However, the Court also went out of its way to leave open the possibility that the Sachs position could be adopted in a future case where it was properly preserved and raised:

An amicus before the Court argues that a defendant in a breach-of-contract action should be able to obtain dismissal under Rule 12(b)(6) if the plaintiff files suit in a district other than the one specified [*9] in a valid forum-selection clause. See Brief for Stephen E. Sachs as Amicus Curiae. Petitioner, however, did not file a motion under Rule 12(b)(6), and the parties did not brief the Rule’s application to this case at any stage of this litigation. We therefore will not consider it. Even if a defendant could use Rule 12(b)(6) to enforce a forum-selection clause, that would not change our conclusions that §1406(a) and Rule 12(b)(3) are not proper mechanisms to enforce a forum-selection clause and that §1404(a) and the forum non conveniens doctrine provide appropriate enforcement mechanisms. [FN]

[FN:] We observe, moreover, that a motion under Rule 12(b)(6), unlike a motion under §1404(a) or the forum non conveniens doctrine, may lead to a jury trial on venue if issues of material fact relating to the validity of the forum-selection clause arise. Even if Professor Sachs is ultimately correct, therefore, defendants would have sensible reasons to invoke §1404(a) or the forum non conveniens doctrine in addition to Rule 12(b)(6).

It’s easy to […]

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