Category Archives: Uncategorized

Mapping the Fault Lines of Normative Constitutional Theory

Dec 15, 2016 Michael B. CoenenAdd a Comment

How should courts decide constitutional cases? The question has been a long-time favorite of judges and scholars, who have defined, developed, and defended a variety of approaches to the project of constitutional adjudication. Some such approaches privilege the “original public meaning” of the constitutional text; others emphasize judicial precedent; others require close attention to moral considerations; others focus on welfare maximization; others place weight on majoritarian preferences; others look to social movements; others privilege representation reinforcement; and countless others require a complex weighing of these and other factors against one another. When it comes to the application and development of constitutional law, different theorists think that different types of considerations should guide the decision-making inquiry to different degrees, and a great deal of constitutional scholarship centers on the question of how these various considerations should bring themselves to bear on the resolution of constitutional cases.

But the disagreements among constitutional theorists run deeper than the question of how to decide cases; scholars also disagree about how to evaluate the merits of a given decision-making approach. One cannot defend one’s preferred method of constitutional adjudication without identifying reasons why that method is preferable to others. And to identify these reasons, one must have an account of what a successful approach to constitutional adjudication achieves. Should we value methodologies that consistently produce substantively desirable judicial outcomes? Should we value methodologies that best reflect the Constitution’s status as written law ratified by “We the People”? Should we value methodologies that constrain the power of unelected judges? Should we value methodologies that adhere to conventional understandings of “what the law is”? And so on. Different approaches to constitutional decision-making will look more or less attractive depending on the criteria against which we evaluate them. And different people favor different approaches in part because they disagree as to what those criteria should be.

Andrew Coan’s illuminating new article is about this second set of questions—questions that go to what Coan calls the “normative foundations” of constitutional theory. These questions, as Coan readily concedes, are by no means unfamiliar to constitutional lawyers; scholars routinely identify criteria for evaluating a decision-making methodology and, in the course of doing so, have very often set out to defend the relevance of the criteria they use. But what Coan’s article aims to provide is a systematic examination of the competing sets of “first principles” from which different theories of constitutional decision-making begin. Coan’s goal, in other words, is to survey the existing landscape of normative constitutional theory with an eye toward describing and evaluating the various types of reasons and arguments that constitutional theorists regard as relevant to the choice among decision-making methodologies.

What Coan is pursuing is thus reminiscent of earlier efforts by Phillip Bobbit, Richard Fallon, and others to develop taxonomies of the different “modalities” of arguments that courts and litigants deploy in defending claims on behalf of particular constitutional results.¹ Coan is attempting a similar taxonomizing effort, but he is doing so at a further level back: Specifically, he offers a descriptive framework for grouping together and distinguishing between the different sorts of arguments that theorists deploy in defending claims on behalf of their decision-making methods. That latter framework is interesting and useful in its own right, but it gains additional analytical purchase when viewed alongside various method-based taxonomies that predate Coan’s work. By juxtaposing both sets of categorization schemes against one another, we are better positioned to think carefully about the relationship between choices about normative foundations and choices about decision-making method—asking in particular what our methodological commitments imply about our foundational commitments, and vice versa.

So how does Coan categorize the foundations of constitutional theory? Though not purporting to offer an exhaustive list,² Coan suggests that mainstream theories of constitutional decision-making typically rest on at least one of four such “normative claims.” These are:

1. Metaphysical claims, which “contend that the correct approach to constitutional decision-making follows deductively from the nature or concept of law or interpretation or some other important feature of constitutional decision-making assumed to require no justification” (P. 6);

2. Procedural claims, which “contend that the correct approach to constitutional decision-making follows from some idea of procedural fairness or legitimacy that requires particular constitutional decisions to be made by particular institutional actors” (P. 7);

3. Substantive claims, which “contend that the correct approach to constitutional decision-making is determined by the moral desirability of the decisions it produces, however moral desirability is defined” (P. 8); and

4. Positivist claims, which “contend that the correct approach to constitutional decision-making follows from the content of positive law, as defined by regularities of official behavior in a particular jurisdiction at a particular moment in time” (P. 9).

Not all of these claims need be mutually exclusive of one another; if one believes, for example, that present-day legal conventions generally produce desirable judicial outcomes, one could appeal to both substantive and positivist considerations in advocating for a particular decision-making approach. And the categories themselves can accommodate significant variation: Different types of “procedural claims,” for instance, might rely on different underlying concepts of procedural legitimacy, just as different types of “substantive claims” might gauge the moral desirability of outcomes in very different ways. Even so, and as Coan persuasively demonstrates, we can learn a lot about the present-day landscape of normative constitutional theory by thinking carefully about these four different types of normative claims and the different sorts of methodologies they might support.

To begin with, by distinguishing between different types of normative foundations, Coan’s taxonomy facilitates careful and systematic comparison of the foundations themselves. Much of Coan’s article is dedicated to this task. For each of the four foundations he identifies, Coan highlights (a) examples of theories that (either implicitly or explicitly) rest on that foundation; (b) features of the foundation that might make it an attractive starting point for a method of constitutional decision-making; and (c) features of that foundation that make it an unattractive starting point. Thus, for example, when it comes to “metaphysical claims,” Coan observes that several decision-making theories take as their starting point the proposition that judges must “interpret” rather than “modify” constitutional guarantees, the related proposition that the written Constitution represents binding law that judges must obey, or some other baseline proposition that the theory treats as fixed and non-contingent. And having identified a family of theories that share this trait, Coan can then proceed to ask what the proponent of any such theory gains and loses by relying on metaphysical claims. On the plus side, for instance, metaphysical claims might “promise clarity, certainty, and inevitability,” within a world beset by “uncertainty and ambiguity.” (P. 21.) Additionally, metaphysical claims might enable theorists to pitch their arguments in “decisive, knockdown terms,” lending them a “strategic advantage” over arguments whose “moral premises . . . are both contested and vague.” (P. 22.) And finally, metaphysical claims—to the extent they rest on “widely shared premises” about law—might facilitate a useful degree of “overlapping consensus” among persons who disagree about more fundamental matters of political morality. (P. 23.) On the minus side, metaphysical claims threaten to “mask the role of choice in constitutional decision-making,” treating as constant and inexorable a set of propositions that are in fact contested and contingent (P. 26.) Relatedly, metaphysical claims might end up carry an only limited persuasive appeal: by invoking capacious ideas such as “interpretation” or “binding law,” metaphysical claims may well rely on particular conceptions of those ideas that nonadherents simply reject. And metaphysical claims might even “have the potential to be self-defeating” (P. 27): To the extent that their premises deductively require an unpalatable, unpopular, or otherwise undesirable decision-making methodology, metaphysical claims might not so much provide a reason to adopt the methodology as they would provide a reason to “abandon [our] commitment” to the premises themselves. (P. 27.)

Coan continues this exercise in connection with the other three members of his typology—i.e., “procedural,” “substantive,” and “positivist” claims—and the end result of his efforts is a fresh and insightful overview of the foundations upon which many different theories of decision-making rest. No particular claim emerges as the obvious winner. Coan attributes strengths and weaknesses to all four of the four normative foundations, and he readily acknowledges room for reasonable disagreement on the question of which foundation(s) should prevail. His article is thus likely to prove a disappointment to anyone hoping for a knockdown, slam-dunk defense of his or her preferred framework for evaluating an approach to constitutional decision-making. But the aim of the article is not to resolve any longstanding disagreements within the world of normative constitutional theory. Rather, it is to facilitate our understanding of where those disagreements come from and of where they are most and least likely to generate fruitful discussion.

What Coan’s analysis suggests, in other words, is that the traditional, methodologically-focused labels that we affix to various theories of constitutional decision-making may end up masking deeper points of convergence and divergence among the theories themselves. It would be one thing if a particular normative foundation always supported a particular type of decision-making methodology. But the world is messier than that, as Coan’s taxonomy helps to reveal. Within the traditional category of “originalism,” for instance, there exist theories that derive from metaphysical claims, theories that derive from positivist claims, theories that derive from substantive claims, theories that derive from procedural claims, and theories that derive various combinations of the four. Within the traditional category of “common-law constitutionalism,” there exist theories that derive from substantive claims and theories that derive from positivist claims, and there might well be room to derive similar theories from metaphysical and/or procedural claims. And conversely, each of the four foundations is itself capable of supporting a variety of different methodological approaches. In short, there is no one-to-one relationship between what a constitutional theory prescribes and where its normative foundations rest. And thus, to the extent that we emphasize similarities and differences at the level of methodological prescription, we end up obscuring similarities and differences at the level of normative justification.

With Coan’s taxonomy added to the mix, we can thus more easily identify what Coan calls “hidden agreements” and “hidden disagreements” between adherents to nominally different theoretical camps. When, for instance, “a positivist originalist clashes with a positivist common-law constitutionalist” (P. 10), their shared commitment to positivism may well matter more than the differing inferences they draw from their positivist premises. Where, by contrast, a “metaphysical originalist clashes with a positivist common-law constitutionalist or a substantive pragmatist, their disagreement is not merely about how judges should make constitutional decisions,” but also—and more fundamentally—“about what types of reasons count in answering the question.” (P. 10.) Indeed, it may even be the case that fellow travelers at the foundational level have more to gain from talking to one another than do fellow travelers at the methodological level: The disagreements between, say, a “consequentialist originalist” and a “metaphysical originalist” may turn out to be far more intractable than the disagreements between a consequentalist originalist and a substantive pragmatist. (The former pair cannot even agree on what the overarching object of constitutional adjudication should be; the latter pair might merely disagree as to how best to achieve the shared goal of generating consistently good judicial outcomes.) In short, by attending to the normative foundations of different constitutional theories, Coan’s taxonomy helps us to identify “points of overlap that create the opportunity for a new and more productive collaboration—among theorists who have generally considered themselves completely at loggerheads.” (P. 11.)

Like any good article, Coan’s work raises many new questions. I found myself wondering, for instance, about the possibility of embedding one type of normative claim within another: One could imagine, for instance, a theorist who adopts a metaphysical postulate for consequentalist reasons (e.g., “Judges must interpret rather than modify the Constitution because any other approach would lead to chaos and disorder.”), or a theorist who adopts proceduralist postulates for metaphysical reasons (e.g., “The written Constitution, whose status as binding law I take as a given, indicates that federal judges should generally defer to the constitutional choices of other governmental institutions”), and I am curious as to how, if at all, these sorts of hybridized theories would fit into the framework that Coan has developed. I also found myself wondering—at the risk of wading too deeply into the waters of jurisprudence and political philosophy—whether one might replicate Coan’s exercise at yet another level back. Having identified different normative foundations of constitutional theory, does it make sense to scrutinize the foundations of those foundations—i.e., the different types of reasons that scholars might deem relevant to the choice among metaphysical, proceduralist, substantive, and positivist claims?

There is, finally, the question of whether one’s metaphysical, substantive, procedural, and/or positivist commitments must always function as “foundations” at the bottom of the analytical tree. It may well be, as Coan suggests, that the best overall approach to deciding constitutional cases is one that (a) begins with an understanding of the big-picture goals of constitutional adjudication, (b) selects the decision-making method that best accords with this understanding, and (c) applies that method to reach case-specific results. But perhaps the process might sometimes operate in a manner that is more “back-and-forth” than unidirectional. I am reminded here of Michael Dorf’s suggestion that “[o]ne does not choose a constitutional theory like a suit off the rack” but that one instead “tailors constitutional theory to one’s own views” about concrete constitutional issues, “including views as they are modified by the initial selection of the theory.³ As a descriptive matter, I would not be surprised if most judges and scholars arrived at their preferred methods of decision-making in just this way, and as a normative matter, I can see why the approach might sometimes prove more attractive than the purely “bottom up” method that Coan’s framework implies. None of which affects the overall utility of the framework itself—Coan’s categories remain clarifying even if their constituent arguments do not always operate at a purely “foundational” level. But the framework does at least raise the important question of whether—and, if so, when—our big-picture objectives, methodological preferences, and assessments of individual outcomes might sometimes relate to one another in a fashion that is more iterative than deductive.

These are just a few of the questions and ideas that Coan’s article helped to generate within my own mind, I suspect that it will be similarly thought-provoking to others who take the time to read it in full.

Scalia’s Jurisdiction

Nov 14, 2016 Richard M. ReAdd a Comment

Chief Justice John Marshall once veered toward tautology in asserting that the Supreme Court “must take jurisdiction, if it should.” In context, Marshall seemed to be saying that the Court’s jurisdiction is properly set by actors other than itself, such as Congress or the Constitution’s drafters and ratifiers. Marshall therefore concluded that for the Court to either “decline the exercise of jurisdiction which is given,” or “usurp that which is not given,” would equally “be treason to the constitution.”

Yet the Court is often called on to construe the amorphous jurisdictional provisions of the Constitution, as well as federal statutes, and those efforts frequently require new, difficult judgments. So discretion has a way of working its way into even the most staunchly formalist efforts to ascertain federal jurisdiction, as most famously argued in a seminal paper by David Shapiro over thirty years ago.

Now Fred O. Smith, Jr., has given us the latest take on federal courts’ jurisdictional discretion. Smith’s timing is doubly apt, because his paper comes on the heels of two important events: first, Justice Antonin Scalia’s unanimous majority opinion in Lexmark v. Static Control Components, which tried to bring order to this field; and second, Scalia’s recent death, which leaves the field feeling both vacant and full of possibility.

Smith’s main target is the idea that “prudential” jurisdictional rules should be converted into “constitutional” rules. In Smith’s view, Lexmark and related cases have underestimated the value of prudential rules of jurisdiction, particularly by viewing them as contrary to principles of democracy. The practical effect of that reasoning, he contends, is that prudential rules are sometimes hardened into constitutional rules. Scalia is an important figure in this story, since he did more than anyone to delegitimize “prudential” jurisdictional rules while entrenching “constitutional” principles.

Smith sets out to defeat Scalia’s democracy-oriented indictment by showing that prudential jurisdictional principles actually foster beneficial forms of court-congress dialogue. And Smith also contends that constitutionalizing prudence runs the risk of curtailing legislative efforts to expand individual rights and remedies. To support those claims, Smith adduces a wealth of examples from a range of time periods and doctrines, with my favorite being his discussion of mid-century certiorari practice. These historical discussions are bound to warm the hearts of federal courts teachers everywhere.

Smith also discusses the short-handed Court’s recent decision in Spokeo v. Robbins. Disagreeing with those who view the decision as inconsequential, Smith persuasively argues that Spokeo is “significant.” For instance, Spokeo intensified Scalia’s reasoning in Lujan v. Defenders of Wildlife by applying it in a suit that was not only between private parties but also resembled common law defamation. While this is hardly the doctrinal earthquake that might have occurred had Scalia still been on the Court, Smith implicitly demonstrates that Scalia’s jurisdictional legacy is outliving him.

Still, Smith’s argument is avowedly limited, in two ways. First, Scalia’s rejection of prudential rules involved considerations other than legislative responsiveness. In particular, Scalia believed that “prudential” principles were illegitimate in part because they curtailed legislative power, and did so without support in the Constitution’s original meaning and its higher form of democratic authority. So Scalia could have continued condemning prudential rules as unwarranted, even after conceding Smith’s claim that they better facilitate legislative democracy.

Second, Smith is not so much a defender of prudential jurisdictional principles as he is a critic of constitutional ones. As Smith puts it at one juncture: “[T]he goal of this analysis is not to defend prudential limits against a baseline of no limits. Rather, the comparison here is between prudential limits and constitutional limits.” So Smith does not necessarily mean to defend, for example, the “prudential” aspects of ripeness, or to dispel the shade that the Court unanimously cast over that doctrine in Susan B. Anthony List v. Driehaus.

The limitations in Smith’s argument point toward an important zone of agreement between himself and Scalia. To be sure, Scalia would be far more likely to view any given prudential rule as unjustified and replace it with a constitutional rule. In some cases, however, Smith and Scalia would presumably agree that prudential restrictions on jurisdiction should simply be eliminated, without any replacement. Lexmark itself, which converted a prudential rule into a statutory merits issue, may supply an example.

Smith and Scalia would also agree that there are important differences between “prudential” and “constitutional” rules. As Smith recognizes, however, this dichotomy is porous and blurred. For example, Smith suggests that the doctrine of state sovereign immunity is best viewed as prudential. While arguably grounded in the Constitution, it can be viewed as “a self-imposed, threshold doctrine of restraint that Congress may abrogate,” at least under some circumstances. In cataloguing that kind of complexity, Smith gives a comprehensive, up-to-date exposition of current law bearing on the prudential/constitutional divide.

But perhaps the best way forward is to set aside those too-familiar labels and focus instead on more specific underlying traits. Doing so would not only avoid a knotty terminological issue, but also reveal the theoretical disagreements beneath the labels.

For instance, Scalia (and like-minded justices) often wrote as though “constitutional” principles had to be discoverable in history, rule-like, and insensitive to the views of Congress. By contrast, Scalia tended to view prudential rules as “judicially self-imposed,” amorphous, and sensitive to statutory law. But Scalia’s own justiciability principles were hardly less judge-made than the supposedly prudential principles he lambasted. And Scalia’s critics might happily characterize as constitutional many jurisdictional doctrines that are substantially innovative, standard-like, or open to at least some legislative input. In my own writing, for instance, I’ve suggested that standing doctrine is a modern effort to implement the open-ended concept of “judicial Power,” making that doctrine both prudential and constitutional.

In time, Smith’s paper might come to mark a doctrinal turning point. Without Scalia, the Court may no longer rely on the prudential/constitutional distinction. Instead, the Court might come to acknowledge that what Scalia called constitutional rules were really the just the distinctive brand of prudential, judge-made rules that Scalia and like-minded colleagues preferred. Jurisdictional debates would then shift in terminology, and perhaps in substance as well. Rather than jousting over labels, the justices would debate how best to develop inevitably prudential doctrines from constitutional and statutory texts.

It is a credit to Smith’s article that it could survive that intellectual and doctrinal shift. While mostly working from within Scalia’s jurisdictional framework, Smith’s critique also contains valuable insights that could outlast it.

Recovering Forgotten Struggles Over the Constitutional Meaning of Equality

Oct 6, 2016 Helen NortonAdd a Comment

Legal history can help us overcome the distortions of time and distance that too often obscure our understanding of struggles both past and present. Katie Eyer’s Ideological Drift and the Forgotten History of Intent exemplifies this kind of legal history. Through painstaking analysis of a century of equal protection decisions by the Supreme Court, she seeks to explain a “perplexing feature of the Court’s early 1970s jurisprudence: the Court’s race liberals’ failure to pursue effects-based approaches to Equal Protection liability at a time when such approaches were gaining credence elsewhere.”

In Washington v. Davis, 426 U.S. 229 (1976), for example, the Court held that the Constitution does not forbid the government’s facially neutral actions that create racial disparities, even if such disparities have the effect of reinforcing traditional racial hierarchies. Rejecting a challenge to the District of Columbia’s examination for police officers that had the effect of disproportionately excluding African-American applicants, the Court held that the equal protection clause addresses only intentionally discriminatory government actions. No member of the Court—including Justices Brennan and Marshall—dissented from this constitutional holding.

This failure can be both puzzling and frustrating to contemporary progressives who believe that the equal protection clause should be read to bar government actions that have the effect of perpetuating traditional patterns of subordination, even when unaccompanied by the government’s intent to cause such harmful effects. They see Washington v. Davis and related decisions as impediments to the view that racial disparities are sufficiently suspicious to demand substantial government justification, and that disparities that remain unjustified are morally unsound and instrumentally unwise.

Professor Eyer argues that today’s doctrinal barriers can be understood as a product of progressives’ earlier efforts to overcome a different set of doctrinal obstacles. Beginning in the 19^th and continuing throughout much of the 20^th century, the Court refused to invalidate government actions motivated by discriminatory intent, so long as the actions were facially neutral in form. (The only exception involved the rare situation in which a challenger could show that a facially neutral action was not only motivated by the government’s animus, but also that it led to the virtually complete exclusion of protected class members, such that it was indistinguishable in practice from a facially discriminatory classification).

In the aftermath of Brown v. Board of Education, Southern resisters thwarted desegregation efforts by exploiting the Court’s refusal to consider underlying discriminatory intent. Without a muscular intent doctrine, school districts could frustrate Brown’s promise by framing their racial hostility in facially neutral terms—for example, through “pupil placement” rules that imposed onerous but ostensibly neutral restrictions on students seeking to transfer from their current (segregated) school assignments. Similarly, in Palmer v. Thompson, 403 U.S. 217 (1971), the Court upheld a city’s facially neutral action in shutting down all public swimming pools, despite the city’s motivation to prevent desegregation.

As Eyer observes, “[T]he ability to invalidate a law based on intent, often taken for granted today, was not a foregone conclusion in the aftermath of Brown. . . . Had the Court never embraced an intent-based invalidation standard, our contemporary constitutional regime would offer a far different, and much bleaker, outlook for racial justice concerns. It is thus important to recall that without intent, we would lack a key bulwark against open evasion of the most basic promises of Brown.”

Thus, the Court’s progressives were determined to overcome the doctrinal problem of their day by insisting on the government’s intent to discriminate as the touchstone for an equal protection violation. Not until the 1970s did a majority form around the premise that covertly discriminatory government actions are as offensive to equal protection values as facially segregationist policies. Indeed, as Eyer points out, not until 1985 did the Court invalidate Alabama’s facially neutral constitutional provision disenfranchising those convicted of “moral turpitude,” even though the president of the state constitutional convention had expressly identified the purpose of the provision as “to establish white supremacy in this State.”

At the same time, Eyer explains how the progressives’ emphasis on intent impeded later efforts to force government to reconsider actions that disproportionately excluded people of color and women without good reason. Only after it later became clear that courts would be very slow to find the government’s discriminatory intent did many progressives come to see a doctrinal insistence on intent as a major barrier to realizing the Constitution’s promise of equal protection.

Eyer’s work reminds us how our challenges can consume our attention and energy in ways that make it difficult to recognize change and thus to pivot from positions for which we’ve fought very hard. We should thus take care to remind ourselves of the inevitability and unpredictability of the likely change yet to come. As Eyer concludes, “Where the law’s content has been defined by a social movement’s own successes, it is on the contours of those successes that battles over meaning will be fought. Thus, the history of intent reminds us that it is predictable that doctrines once thought to serve a particular vision of the good will evolve to reflect other competing groups’ normative aspirations. And so too is it predictable that groups seeking constitutional change will ultimately be bound by their victories, just as their losses may also constrain.”

A “Follow the Money” Approach to Separation of Powers

Sep 7, 2016 Charles ShanorAdd a Comment

This year has featured no shortage of excellent doctrinal pieces in constitutional law—so many that I couldn’t choose among them. This article is different: more political science than law, although it does focus on separation of powers. Many Jotwell readers may not have read it. That’s unfortunate. It deserves follow-up work by constitutional law scholars.

Agency Finance in The Age of Executive Government, by Michael Greve and Christopher DeMuth, opens up a wide agenda for constitutional scholarship premised less on doctrinal issues, and more on a series of interlacing fiscal developments that have shifted power to the executive branch. The burgeoning administrative state, the continuing shift towards executive governance, and the lack of political accountability of administrative agencies have long been academic legal literature fodder. Most of these articles explore the doctrinal and policy nuances of the dividing lines between the political branches. The courts, meanwhile, have occasionally cabined the executive with an institutionally appropriate focus on fact-specific and precedent-based analysis. But both the academy and the judiciary are fundamentally inadequate to the task of cabining the executive branch. Neither can substitute for congressional control over and channeling of executive action, the main control built into the constitutional scheme of separated federal powers. Congressional retreat has facilitated executive creep.

Taking a “follow the money” approach to power relations between the political branches, Greve and DeMuth highlight the many ways executive functions are funded outside congressionally controlled appropriations processes. Though “[t]he written Constitution is unequivocal, indeed emphatic, in committing fiscal powers to Congress and in withholding them from the executive,” (P. 2), agency funds increasingly arise from sources outside this mechanism. Little examined compared to other aspects of executive creep, the “growth of off-budget finance reflects a pervasive, secular trend to executive government.” (P. 4.)

The size of this growth is unclear, as there is incomplete disclosure of the sources and amounts of the revenue streams that come to executive agencies outside the budget and appropriations process. The incentives behind this development, and its effects, are also unclear. Why have non-appropriated funds become ever larger in relation to appropriated funds? What does this development augur for notions of actual government operations, compared to how government under the Constitution is “supposed” to operate?

“Off-budget” financing includes executive “taxes” in the form of “license fees, royalties, proceeds from public lands, the sale of ordinary goods and services, and legal fines and settlements.” (P. 6.) Many times, such funds are spent by agencies directly rather than being deposited back to the Treasury for congressional use. Examples abound: military PX, gym, and club fees; Customs and Immigration Service green card fees; FCC “universal service” fees and PCAOB assessments on audited companies; CFPB funding “drawn” from the Federal Reserve system; law enforcement by “private attorneys general” who are paid fees for their work; retention of asset forfeitures by the Department of Justice; and fines and settlements for corporate crimes.

The last of these—fines and settlements—is the largest. The authors present in detail the following patterns concerning fines and settlements:

(1) the rising tide of such prosecution and monetized settlements; (2) their apparent focus on economic sectors with intense financial and regulatory relationships with the government; (3) the pattern of consistent legislative support for expanding the practice; (4) a pronounced tendency toward “presidentialism”; and (5) a startling lack of public accountability at all stages of the proceedings, including the disposition of funds. (P. 17.)

Though not explored in the article, much of this same analysis could be applied to other, smaller sources of executive branch revenue streams. And this series of issues could be explored in individual articles focusing on specific agencies.

What has driven monetary settlements with financial institutions and other corporate entities, as opposed to individual criminal prosecutions of culpable executives? The authors hypothesize several possibilities: (1) legal explanations, such as difficulty obtaining individual convictions or problematic evidence of wrongdoing; (2) political explanations, such as partisan control of federal agencies and state Attorneys General, lobbying proficiency of financial institutions, or personal connections; and (3) an agency-centered theory of non-appropriated budget maximization.

What conclusions may be drawn from the existence of large and growing amounts of agency self-funding? The authors list several, but the most interesting is that “Congress has evolved from lawmaker into enabler of executive government. Its institutional function is to establish semi-autonomous special-purpose governments, while its individual members pursue their electoral careers as official lobbyists of those governments on behalf of narrow interest groups and broad ideological or partisan causes.” Though controversial, such “evolution” has massive ramifications for the American constitutional experiment.

Should the courts accord more (or less) deference to legislative delegation of taxing and spending power than of regulatory authority? Are there implicit or explicit quid-pro-quos, where heavily regulated and favored industry incumbents disgorge some of their profits through fines and settlements that fund the regulatory agencies imposing entry barriers on other potential competitors? What are the implications of this story for the connection between our formal institutions for governance and the actual operation of government?

These real-world operations should be carefully examined by constitutional and administrative law scholars as well as by empiricists. Greve and DeMuth have ably presented a window on a significant issue that—if the rest of us take heed of this important article—should give rise to a major research agenda for constitutional scholars and others.

Constitutional Officers: A Very Close Reading

Jul 28, 2016 William Baude7 comments

Everybody should read the Constitution. But some of us find more in its text than others. In a series of underappreciated pieces,⁴ Professor Seth Barrett Tillman may have found an intricate and startlingly coherent set of principles about government structure — as well as a reminder to take the Constitution’s words more seriously than we do.

Much of the Constitution (especially the original 1789 document) deals with structure. It creates government institutions, defines their powers, and regulates their membership. In the course of doing so, many of the Constitution’s provisions deal with individuals who hold government office – officers. Indeed, if you start ticking off references to “office” and “officers” as you read through the Constitution, you may notice two things: There are a lot of them, and many of them are phrased differently.

Consider some examples (emphasis added in each):

• “Officer.” See, e.g., Article II, Section 1 (“[T]he Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected.”)
• “Officer of the United States.” See, e.g., Article II, Sections 2-3 (“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 … and shall Commission all the Officers of the United States.”)
• “Officer under the […] United States.” See, e.g., Article I, Section 6 (“No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States which shall have been created, or the Emoluments whereof shall have been increased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.”)
• “Public Trust under the United States.” See Article VI (“[N]o religious Test shall ever be required as a Qualification to any … public Trust under the United States.”).

As detailed below, there are many more. Most people, even most sophisticated scholars, have assumed that these textual variations are basically the same. Or, if they differ from clause to clause, people assume that the differences depend on the purpose of the provision, not the differences in wording. But what if that widespread assumption is wrong? One of Professor Tillman’s projects — I am tempted to call it a crusade — is to take these textual differences seriously, and show that the different office-related phrases have distinct meanings.

This isn’t just technicality for its own sake. The debate has important practical consequences. Consider the problem of presidential succession. Article II, Section 1, empowers Congress to decide “what Officer shall then act as President,” if both the President and VP are gone, and current law chooses the Speaker of the House. (Think of the Season Four finale of The West Wing.)

But the Speaker is not an “Officer of the United States.” The Speaker is elected by the people, and Article II, Sections 2 and 3, says that “Officers of the United States” are to be appointed and commissioned by the President. So if “Officer” and “Officer of the United States” are the same thing, the presidential succession statute is unconstitutional (an argument made by James Madison, and later by Professors Vikram and Akhil Amar). But if Professor Tillman is right, i.e., if “Officer” and “Officer of the United States” are different, the statute is fine. And if the dispute is unresolved, it is a recipe for constitutional crisis.

The evidence that Professor Tillman amasses is wide-ranging. Much of it is circumstantial or based on post-ratification practice. But some of it makes powerful points. For instance, so far as we can tell, no President has ever given himself or the Vice President a commission. That suggests that the President and Vice President are not “Officers of the United States,” and raises questions about whether other “Officer” formulations apply to the President.

Here are two more historical examples. First, President George Washington publicly received gifts from French officials (the key to the French Bastille and a portrait of Louis XVI) without asking Congress’s permission. This suggests that he was not subject to the Foreign Emoluments Clause, which applies to a “Person holding any Office of Profit or Trust under [the United States].” Second, in 1792, Treasury Secretary Alexander Hamilton was instructed to report to the Senate “every” person holding “office … under the United States” and their salaries. His ninety-page list included every appointed officer, including those in the legislature, such as the Clerk of the House, but excluded elected officials such as the President, Vice President, and members of Congress. This suggests that some definitions of office will turn on whether one is elected rather than which branch one is in.

Now, there may be alternative explanations for each of these points. Taken as a whole, however, they start to suggest that most of us have been too quick to assume that there is no logic to the Constitution’s varying terminology. Across his publications, Professor Tillman puts forth a systematic, intricate account of each of these terms, which makes sense of the historical examples and provides a consistent and coherent account of the text.

As I understand it, here is a synthesis of the Professor Tillman position:

(Thanks to Margo Uhrman for her assistance in compiling this table.)

Next time you confront a separation of powers problem or read through parts of the Constitution, keep Professor Tillman’s chart in hand. Suddenly, it will be hard to assume that the Constitution’s textual variations are meaningless. Indeed, Professor Tillman’s theory makes sense of patterns that most of us never saw. It brings order out of chaos. That is not to say that his position has been conclusively proven. But at this point, I think he has singlehandedly shifted the burden of proof.

Since this is an entry in the Journal of Things We Like Lots, and since I am synthesizing much of Professor Tillman’s work here, I feel the need to venture a final word on his research style. When you read an individual Tillman piece, you will notice exceedingly technical arguments combined with an almost urgent voice. You cannot help but think the author is brilliant, and you cannot help but wonder if the author is rather eccentric. As you read more of the pieces together, you will realize that he has a constitutional project, that he pursues it with great skill and knowledge, and that if he didn’t do it, nobody would.

We need more scholars like Seth Barrett Tillman.

Star Wars, Science Fiction and the Constitution

Jun 27, 2016 Ilya SominAdd a Comment

Cass Sunstein is one of America’s leading legal scholars. Both his work generally and his book about Star Wars specifically have attracted enormous attention from both academics and the general public. But one theme of his new book, The World According to Star Wars, highlights an area that is often neglected: the depiction of constitutional issues in science fiction and fantasy.

Both legal scholars and other commentators on law and public policy would do well to pay more attention to this subject. Far more people watch science fiction movies and read science fiction books than pay attention to serious nonfiction commentary on political and constitutional issues. Whether we like it or not, these products may well have an impact on public attitudes, a possibility supported by some social science research.⁵ They also often reflect the concerns of their time.

The Star Wars franchise, the focus of Sunstein’s book, is perhaps the most popular science fiction series of our time. Its only plausible rival for that title is Star Trek, which Sunstein also discusses. There is therefore good reason to think about what, if any, message the series conveys about constitutional issues.

In his insightful new book, Sunstein devotes a good deal of space to the implications of Star Wars for constitutional questions, as well as political issues closely related to them. He also, of course, has numerous excellent insights on aspects of Star Wars that have little or nothing to do with law and politics. The book is a treasure trove for Star Wars fans and science fiction fans more generally. But it is the constitutional and political aspects of Sunstein’s analysis that most concern us here.

One point he makes is that the series raises the question of the extent to which it is a good idea for the legislature to delegate power to the executive (Pp. 118-20). After all, Chancellor Palpatine is able to subvert the Galactic Republic and turn it into a despotic empire by utilizing emergency powers delegated to him by the Senate in order to wage the Clone Wars. As Sunstein notes, this issue resonates with current controversies about the use of wide-ranging executive discretion in the War on Terror, and in domestic regulation and law enforcement. Sunstein himself believes that such concerns are overblown (at least with respect to the Obama administration), but recognizes that they raise legitimate issues that we would be unwise to ignore.

Sunstein also uses Star Wars to critique originalist approaches to constitutional theory (Pp. 145-57). He points out that the Star Wars universe developed in directions very different from what George Lucas may have originally intended in the 1970s, and that the alterations made by later writers and directors often made the story better. He analogizes this to the way in which modern court decisions and political movements have changed constitutional doctrine, often also (he contends) for the better.

Unlike in the case of executive power, I think Sunstein’s analogy here is somewhat strained. There are many obvious differences between designing a plot for a movie series and interpreting a constitution. Among other things, changes in the former need not follow a set amendment process, and do not implicate the coercive authority of the state. Instability and internal contradictions in a movie or TV series plot line also have far less potential for harm than similar phenomena in constitutional law.

Even within the context of Star Wars, not all fans of the series will agree with Sunstein’s optimistic appraisal of the twists and turns in the plot added since the original movie. To take just one example, many decry the various innovations developed in the three prequel movies, especially when they seem to contradict the original trilogy on various key points.

Sunstein also argues that “Star Wars is obsessed with the separation of powers” and that it opposes “democratic systems to fascist ones” (P. 116). It is, he believes, especially hostile to the “concentration of power in one person” (Id.). In some ways, he is surely right. The replacement of the Galactic Republic with the dictatorship of Emperor Palpatine leads to massive oppression and injustice. As already noted, that chain of events is set off by what seems to be excessive delegation of power to the executive.

But if the series condemns dictatorship, it does not necessarily come out strongly in favor of democracy. Whenever we see democratic institutions at work (most notably the Galactic Senate), they seem sclerotic and incompetent. Such good as the Old Republic does mostly seems to be the responsibility of the Jedi Order, an unelected elite of genetically superior Force users that usually has little if any accountability to democratically elected bodies.

When the Empire is defeated, it is not by a democratic popular movement, but by a relatively small force of rebels, led by aristocrats (Princess Leia) and elite Force users, such as Luke Skywalker and his mentors Yoda and Obi-Wan Kenobi. While the Rebels seek to restore the Republic, we get little indication of what that might mean in institutional terms – other than the overthrow of the Emperor, of course.

More generally, there is very little sense in Star Wars that institutions (other than perhaps the absence of dictatorship) matter to good governance. Rather, the dominant impression is that things will be fine if good people are in power – people like Luke, Leia, or (in the prequel movies) the Jedi Order and the few “good” politicians, such as Bail Organa and Padme Amidala. In a 1999 interview,⁶ George Lucas famously said that “a benevolent despot is the ideal ruler” and criticized “dysfunctional” democracies where “[y]ou get these individual voices that are very loud.” To some degree, at least, the series reflects that perspective. It is often ambivalent about whether we should fear concentration of power generally, or merely concentration in the wrong hands.

The emphasis on heroic elites may be a more general limitation of science fiction, and perhaps popular culture generally. It is much easier for a movie, TV series, or other work of fiction to portray the importance of heroic individuals than that of political institutions. Luke, Leia, and Han Solo inspire our empathy and admiration far more readily than a legislature, a court, or a well-run bureaucracy ever could. Star Wars, like many other works of fiction, implicitly conveys the message that the antidote to tyranny and oppression is to make sure the right people are in power.

The series does, however, make one troubling institutional point about democracy that has troubling real-world parallels: The rise of Palpatine is facilitated by widespread voter ignorance. As the prequel movies and the Clone Wars TV series show, Palpatine is successful in large part because the public is oblivious to what is really happening. They do not understand, for example, that the entire conflict between the Republic and the secessionist rebels was trumped up by Palpatine and his allies in order to facilitate his seizure of power. They are also unaware of the risks of concentrating so much power in the office of the chancellor.

The Force Awakens, the most recent Star Wars movie, suggests that the voters have not learned their lesson even in the aftermath of the collapse of the Old Republic and the atrocities of the Empire. Just as Old Republic voters were oblivious to Palpatine’s machinations, those of the New Republic fail to notice the rise of the menacing First Order right under their noses. Sadly, the voter ignorance portrayed in Star Wars is an exaggerated, but recognizably similar, counterpart to the widespread voter ignorance that exists in the real world.⁷ Like that in Star Wars, real-world voter ignorance is often remarkably persistent.

The fact that Star Wars effectively highlights this problem does not necessarily mean it offers a good solution. Among other things, there is little sense that public ignorance is a problem that might require institutional solutions, as opposed to merely a tool that the villains manipulate, and the heroes strive to overcome. But the series deserves credit for at least raising this important issue.

Although I take a more critical view of Star Wars’ approach to constitutional and political issues than Cass Sunstein does, he is absolutely right to highlight this aspect of the series. Even more importantly, he deserves our gratitude for noting the importance of the portrayal of constitutional issues in popular culture generally. Other scholars would do well to build on his work in that respect.

Despite the inherent difficulty of the task, some science fiction works treat institutional issues with greater sophistication than Star Wars does. Examples include the Babylon 5 TV series and at least some of the Star Trek series, particularly Deep Space 9. There are also some examples in fantasy literature, a genre closely related to science fiction. These and other fictional universes might well repay the sort of analysis that Sunstein devotes to Star Wars.