Author Archive | Will Baude

Is Originalism the Law?

One question that quite fascinates me is whether the original meaning of the Constitution is “the law” — in the sense that it describes the positive law of the United States. Mike Rappaport has a pair of posts exploring this question: here’s the first, here’s the second. Ultimately, he concludes that originalism is not against the law, but he remains skeptical that originalism is the law:

I am open to the argument for originalism being the law, but at present find the arguments undeveloped. If one day someone makes a persuasive argument, I would, of course, welcome it. But, at present, I believe the best argument is based on the normative soundness of the Constitution and the problems with judicial updating of the Constitution …

I have been working on developing an argument like this (as has my friend Steve Sachs) but I entirely agree with Rappaport that the current work on this is extremely underdeveloped. […]

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Same-Sex Marriage (Ex Post) Upheld in Indiana

One interesting issue I encountered in my various research projects on marriage is how transgender individuals interact with the law of same-sex marriage. For example, if a couple is originally married as a man and a woman, and one of the parties later changes their legal sex, does that invalidate the marriage (if the state does not allow same-sex marriage)? I’ve found surprisingly few written appellate decisions on this topic.

Yesterday, the Indiana Court of Appeals concluded that the answer was “no.” If the marriage was valid when the parties entered into it in Indiana, then nothing in Indiana’s anti-same-sex marriage law changes that. The case was litigated by Professor Steve Sanders, at the Indiana University Maurer School of Law. I’ve previously posted about Sanders’s scholarship on the importance of reliance interests in marriage law. […]

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Hart on Discretion

The Harvard Law Review contains a new essay on discretion by the late, great, H.L.A. Hart. The essay has apparently long been thought lost and never been published before. The essay was discovered by law student Geoffrey Shaw, who has written an article analyzing it. (Not that I deserve any credit, but I’m pleased to say that Shaw was a student of mine when he was in college.) There is also a short commentary by Professor Nicola Lacey.

This is likely the first and last H.L.A. Hart article whose publication will be announced on a blog. […]

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Eight People (Including Ezell Gilbert) Pardoned

Today President Obama commuted the sentences of eight people all serving long crack sentences that might well be illegal if given today. Charlie Savage reports: “It was the first time retroactive relief was provided to a group of inmates who most likely would have received significantly shorter terms if they had been sentenced under current drug laws, sentencing rules and charging policies.”

This is exactly the kind of thing I had in mind in my NYT Debate column about retroactivity a few months ago. Of course, eight is not very many. Better if it were eighty, or eight hundred, or eight thousand. Mark Knoller tweeted that this “brings Pres Obama’s number of pardons to 52, fewer than any US president since Garfield, who granted none.”

Also: Now that the full list of names is out, I see that one pardon recipient is Mr. Ezell Gilbert. Mr. Gilbert, Savage notes, will “be released immediately because he was recently out of prison for a time, without problems, during an appeal.” And what an appeal it was. Two years ago, Gilbert’s case divided the Eleventh Circuit in a series of opinions. First, an Eleventh Circuit panel concluded that Gilbert’s sentence could be corrected through habeas even though it had long been final, prompting Doug Berman to write that the court had “given[n] the ‘Great Writ’ some notable life.” The panel also ordered Gilbert to be immediately released.

The Eleventh Circuit met en banc, and in May 2011 it reversed the panel 8-3 and ordered Gilbert back into prison. Gilbert unsuccessfully petitioned the Supreme Court for cert. If only the President had reached this decision two and a half years ago. At least he’ll be out for Christmas.

UPDATE: A reader points out that these eight offenders have actually received what is formally […]

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Wind Farm Permits to Kill Protected Eagles

Yesterday the Department of Interior finalized a rule that allows wind farms to get 30-year permits allowing them to kill federally-protected eagles. Eagles are frequent accidental victims of power plants and wind turbines, and the government has long taken the position that it is a federal crime to kill an eagle even unintentionally. To get the permit, the farms have to take various conservation measures.

Apropos of Eugene’s blogging this week, there is also a RFRA connection. In 2008, the Tenth Circuit decided a case called United States v. Winslow Friday, in which Mr. Friday was prosecuted for killing a bald eagle to use in his tribe’s religious ritual. One of Mr. Friday’s arguments on appeal was that RFRA requires the federal government to treat tribal killings and power-company killings of eagles with parity. The Court did not disagree with this premise, but concluded, at the time, that “with respect to both religious and secular threats to the eagle, the government appears to take a similar approach.” […]

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Further Thoughts on the Precedential Status of Decisions Affirmed on Alternate Grounds

Orin asks below about the precedential status of circuit court opinions — like the D.C. Circuit’s opinion in Maynard — that have been affirmed by the Supreme Court, but under different analysis. Like Orin, I think it’s a very interesting question, but I confess my instinct about the answer is different from his. Here are some of the legal materials I think relevant.

The rules: The Supreme Court rules do not automatically vacate the lower court opinion when cert. is granted; they say nothing about it until the Supreme Court ultimately decides how to dispose of it by affirming, vacating, or reversing. This is in contrast to some courts of appeals — such as the Fourth Circuit or the Sixth Circuit — which provide that a panel opinion is automatically vacated when rehearing en banc is granted.

Court decisions relying on affirmed opinions: Searching Westlaw, I found a lot of cases where federal courts treat a court of appeals opinion as precedent (or sometimes “binding precedent”) when its citation notes that it has been “aff’d on other grounds” by the Supreme Court. For example:

Balintulo v. Daimler AG, 727 F.3d 174, 191 (2d Cir. 2013) (“The law of this Circuit already provides answers to some of those questions, including the principle that corporations are not proper defendants under the ATS in light of prevailing customary international law, see Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111, 149 (2d Cir.2010), aff’d on other grounds, 133 S.Ct. at 1669”).

Martin v. Occupational Safety & Health Review Comm’n, 947 F.2d 1483, 1485 (11th Cir. 1991) (following “binding precedent in Atlas Roofing Co. v. Occupational S. & H. Rev. Com’n, 518 F.2d 990, 1013 (5th Cir.1975), aff’d on other grounds, 430 U.S. 442 (1977)”)

Newton v. Thomason, 22 F.3d 1455, 1460 (9th Cir.

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Constitutional Law Scholars’ Noel Canning Amicus, Part III: Pro Forma Sessions

The third issue addressed in our amicus brief is the validity of the Senate’s pro forma sessions under the Recess Appointments Clause. To avoid the force of the historical definitions of “happen” and “recess,” one would need to argue that the more modern practice is what should be controlling. But under modern practice, we argue, the Senate’s pro forma sessions are valid, so the Solicitor General loses on that ground instead.

This is the shortest part of our brief. And here it is:

III. Under Modern Practice and Pragmatic Construction, The Senate’s Pro Forma Sessions Interrupt A Recess

The third consistent approach to interpreting the Recess Appointments Clause for purposes of this dispute would rely on longstanding, but more recent practice. For many decades, without objection or controversy, both Houses of Congress have employed “pro forma” sessions for several constitutional purposes. To promote structural consistency, the Court should recognize “pro forma” sessions as no less effectual under the Recess Appointments Clause. The effect is to make the breaks between those sessions in January 2012 merely three days long. No recess appointment has ever been made during an “intrasession” recess that short.
While the OLC opinion and some previous government briefs had been cagey about whether a recess appointment could be made even during a three-day intrasession recess, the Government’s brief in this case explicitly concedes that “such short intra-session breaks—which do not genuinely render the Senate unavailable to provide advice and consent—are effectively de minimis and do not trigger the President’s recess-appointment authority.” U.S. Br. 18.

A. Under Modern Practice, Pro Forma Sessions Are Routinely Respected As Genuine

The Constitution provides that “each House may determine the rules of its proceedings,” U.S. Const. art. I, § 5, cl. 2. Using that authority, the Senate frequently agrees that it will meet

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Captioned Headings in a Supreme Court Opinion [UPDATED]

Justice Scalia’s opinion today in United States v. Woods is a minor loss for the taxpayer bar, overturning a longstanding Fifth Circuit doctrine that made it harder for the government to impose exorbitant penalties when it successfully invalidated a transaction as a tax shelter. [Full disclosure: In private practice, I worked on Bemont v. United States, which is expressly abrogated by today’s decision.]

But Woods may be more noteworthy for a minor formatting innovation. [BUT SEE UPDATE BELOW.] As Professor James Duane noted last year to the Green Bag, a legal writing book co-written by Justice Scalia advocates using descriptive headings made of actual words, rather than mere numbers and letters. But as Justice, Scalia had followed this advice only once, in a solo dissent in Gonzalez v. Thaler. Duane wrote:

Justice Scalia’s readers were inspired to hope that his tantalizing dissent in Gonzalez might be a sign that he had finally come around to agreeing with his co-author, and a sign of things to come. But it was not meant to be, at least not yet. Since Gonzalez was decided, Justice Scalia has authored several more opinions, but not one of them follows the novel format of that historic dissent. Is his opinion in Gonzalez a precursor of a bold new writing style we can expect to see from Justice Scalia from time to time in other cases? Or was it merely a device that he thought would somehow be especially appropriate for that case? Only time will tell. In the meantime, those of us who read Supreme Court opinions for a living can only wait and hope.

Well the wait is over. In Woods, the captioned headings have returned! (“I. The Facts” etc.) And this time, in an opinion for a unanimous Court, not a solo […]

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Jim Hannah on “Abandoned Practices” of Dead or Disbarred Lawyers

I spent Thanksgiving weekend in Ohio, where our local paper ran a quite interesting story about the chaos that can ensue for his/her clients when a lawyer dies or is disbarred. If the lawyer is part of a firm, the other lawyers at the firm generally have an obligation to continue the representation; but if the lawyer works alone, there’s nobody automatically designated to take over. Lawyers are encouraged, and sometimes required, to name a “surrogate” lawyer in the case of their death, but like all death-planning this does not always happen, and apparently the surrogates are often not compensated.

Two additional thoughts about the article:

1: It’s nice to see a long, interesting, insightful article by a local journalist. I’d never heard of the author, Jim Hannah, but I’ll be keeping an eye out for his future work.

2: One interesting question is whether there’s a case for state intervention here — either by requiring surrogates to be named (as I gather many states do) or providing state compensation for them (perhaps coming out of bar dues).

The obvious libertarian take is that such a regulation is unnecessary or even counterproductive. The risk that your lawyer will suddenly die or be disabled is one of the risks you take when you retain a solo practitioner, and presumably makes solo practitioners slightly cheaper.

That said, consumer information about lawyers is pretty bad, and the market for lawyers is already so heavily regulated that it may be too late to analyze marginal regulations in pure libertarian terms. (In economic terms this is the problem of the “second best.”) I do think such regulations are probably a bad idea, but I’m not sure I can prove it. […]

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Constitutional Law Scholars’ Noel Canning Amicus, Part II: “Recess” and “Session”

The second issue addressed in our amicus brief is what the Recess Appointments Clause means by “recess” and “session.” Our brief discusses the original meanings of these terms, as well as the structure, purpose, and history that clarify the meanings of those terms in context. Most importantly, we argue that the Senate cannot be in “recess” and in “session” at the same time.

Several of these points were made very well a few years ago in several amicus briefs filed by Senator Ted Kennedy (with Laurence Tribe and Marty Lederman serving as his counsel), as well as more recently in a series of excellent blog posts by Michael Stern, at Point of Order. Others are made in a forthcoming article (not online yet) by Mike Rappaport.

Here’s how we put the argument in the brief:

II. The Text Implies, and Long Practice Confirms, That Recesses Occur Between Sessions, Not During Them

The recent lower court decisions addressing the merits all conclude that Presidents may not use recess appointments to fill vacancies during so-called “intrasession recesses,” regardless of how one interprets the word “happen.” We acknowledge that the text of the Recess Appointment Clause standing alone does not explicitly preclude the concept of “intrasession recesses.” Nonetheless, it is best read—in light of parliamentary practice and the purpose of the Clause—to implicitly foreclose such appointments. That this is the most natural meaning of the text is confirmed by long practice. If, however, the Court abandons the formal definition of “recess,” it should likewise abandon a formal definition of “session,” meaning that recess appointments will generally last for weeks, not years.

A. The Constitution’s Text and Purpose Imply that Recess Appointments Are Limited To Intersession Recesses

It is something of a misnomer to refer to “intrasession” and “intersession” recesses, as the parties

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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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“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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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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Constitutional Law Scholars’ Noel Canning Amicus, Part I: The Original Meaning of “Happen”

Yesterday I posted the amicus brief that I and a group of constitutional law scholars filed in the Court’s recess appointments case, Noel Canning. Taking a page from Eugene, I thought I’d put break our argument out into three blog posts this week, for those who are curious but don’t want to read through the entire PDF.

The first of the three issues we address is the meaning of the word “happen.” The Clause empowers the President to fill up “Vacancies that may happen during the Recess of the Senate,” and we argue that this originally meant that the office has to become vacant during the recess.

The original meaning of the Clause on this point is covered by the respondent and by the excellent “Brief of Originalist Scholars.” Section One of our brief discusses some of the same arguments and adds two other points based on historical practice — 1, that most of the Solicitor General’s attempts to assert counter-examples in early practice turn out to be mistaken, and 2, that for a long time, the Senate expressly resisted the executive branch’s expansive interpretation of the Clause. (These are I.C. and I.D. below.)

I’ve reprinted Section One of our brief (with a few footnotes omitted) below the fold:

I. Under The Text and Original Meaning of the Recess Appointments Clause, The Office Must Fall Vacant During The Recess

The Recess Appointments Clause states that “[t]he 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.” U.S. Const. art. II, § 2, cl. 3. The most obvious meaning of the word “happen” is to “occur” or “take place,” and the most obvious meaning of the word “vacancy”

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“No Instrument Could Long Endure Such Experiments.”

One of my favorite historical documents about recess appointments is the Senate Judiciary Committee’s 1863 report on the meaning of the Clause. (The document is here; a discussion by Michael Stern is here.)

As we note in our brief, in late 1862, Lincoln’s Attorney General, Bates, issued an opinion justifying an expansive interpretation of the Recess Appointments Clause on “the unbroken acquiescence of the Senate.” In early 1863, at the behest of the Senate, the Judiciary Committee responded.

It’s a really well-done piece of constitutional reasoning that emerged at an important historical moment. Yet the report is often neglected. (While it figures in Mike Rappaport’s pathbreaking article on the Clause, for example, it did not make the cut for co-blogger John Elwood’s “Recess Appointments Reading List” last April.) For those who are interested in the practice under the Clause, or who are interested in interpretations of the Constitution outside of the courts, I highly recommend it.

The Senate report goes through the text and purpose of the clause, and discusses the methodological issues in sophisticated terms. It notes, for example, that subsequent practice can be relevant to the “construction” of a constitutional provision, but only in interpreting ambiguity, not a provision that has a clear meaning and purpose.

And in my favorite paragraph, it discusses the dangers of the executive branch’s interpretation:

It is in reality only the invention of a phrase not contained in the text, giving it an effect which the text itself,by the ordinary rules of interpretation, forbids. No instrument could long endure such experiments. The rights secured by it would become the sport of interested ingenuity, and language itself a snare.

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