Conservative Members of Congress Should Resign En Masse and Transfer to Other Legislatures

Congress is a failed institution. Speaker Nancy Pelosi should have resigned, Schumer should be on administrative leave, and Diversity Director Lynne Cheney should be unemployed. Alas, Pelosi is clinging to the remaining months of her tenure. And Josh Blackman issued a not-too-reasonable Reason blogpost on “sharing of private thoughts that haven’t been fully reasoned.” In other words, “why so serious?” (I hope the Joker …and Pink… are not triggering).

At this point, there is only one way to make Congress suffer: deny it the prestige it so desperately seeks. Specifically, Republican members of Congress should resign en masse and move abroad and run for office there, to ensure that other global legislatures can take credit for their legislative genius. As a plus, GOP representatives who transfer out of America may actually learn something about the law and humanity -a useful skill for any human.

I’ve had the honor of meeting some Republicans. They are under siege on a daily basis. They should shrug, and get out of America. I’m sure Vladimir Putin would welcome the entire Republican caucus.

Histories of Presidential Power: Conference at Stanford, May 2022


I’m thrilled to be organizing this conference with Michael McConnell and the Stanford Constitutional Law Center, May 20-21, 2022 (open to the public):

Histories of Presidential Power

It is no surprise that an unprecedented Presidency in the United States should be an occasion for new thinking about the design of Article II of the U.S. Constitution and the scope of executive power in America. But in fact, this rethinking has been happening for some time now, in the form of an emerging body of originalist historical work on core features of Article II and the President’s relation to other branches. Although originalist inquiry emerged in the twentieth century as a decidedly conservative phenomenon, and although the contemporary Supreme Court justices most associated with originalism have favored expansive presidential power, the new historical work on the presidency (from across the political spectrum) offers more evidence against the “imperial” presidency and broad executive discretion.

Some newer work on Article II – authored by the scholars proposing this symposium – addresses other core parts of Article II and finds an original design of a constrained Presidency, subordinate in many respects to the Congress. New research on English and colonial institutional design and practice offer insights into Article II. New readings of the Constitution’s Vesting Clause and of the First Congress spark a fresh debate about legislative delegations to the executive branch and the scope of presidential power. New histories of emergencies in American history help us understand the evolution of executive power, especially after the debate about Trump’s border wall spending and during pandemic measures in the Covid-19 era. New interpretations of nineteenth-century administrations help us understand the construction of presidential power – and the emergence of the separation of powers — over time. And new research into the eighteenth century has sparked new legal debates about fiduciary constitutionalism and non-delegation of legislative power. This conference brings together many authors on opposite sides of these debates to discuss, synthesize, dig deeper into the past, and move forward into the future of constitutional interpretation.

Panel 1: How the Presidency Emerged from Colonial, English, and Founding Era Law and Practice
Andrew Kent (Fordham), Michael McConnell (Stanford), Julian Mortenson (Michigan), Eric Nelson (Harvard)
Maeve Glass (Columbia), commenting

Panel 2: The First Congress and Executive Power (FRIDAY)
Aditya Bamzai (Virginia), Lindsay Chervinsky (GW, SMU, author The Cabinet: George Washington and the Creation of an American Institution), Mike Ramsey (San Diego), Jed Shugerman (Fordham), Ilan Wurman (Arizona St). Commenting/Moderating: Gerhard Casper (Stanford). Commenting: Jonathan Gienapp (Stanford)

Panel 3: What Article II History Teaches About Emergency Powers (FRIDAY)
Aziz Huq (Chicago), Cristina Rodriguez (Yale), Bernadette Meyler (Stanford), Norm Spaulding (Stanford)
Ingrid Wuerth (Vanderbilt), commenting. Anne Joseph O’Connell (Stanford), moderating.

Panel 4: Early Presidential Construction of Constitutional Power
Niko Bowie & Daphna Renan (Harvard), Alison LaCroix (Chicago), Nicholas Parrillo (Yale). Commenting: Jack Rakove (Stanford)

Panel 5: Public Fiduciaries and the History of Article II
Ethan Leib & Jed Shugerman (Fordham) and Seth Davis (Berkeley). Commenting/moderating: Diego Zambrano (Stanford), Elizabeth Reese (Stanford)

Panel 6: (Non-)Delegation
Will Baude (Chicago), Philip Hamburger (Columbia), Jenn Mascott (GMU/Scalia), Julian Mortenson (Michigan), Nick Parrillo (Yale). Commenting: Gillian Metzger (Columbia)

To ensure the safety and public health of our Stanford University community, approved visitors must attest that they have screened themselves prior to arriving on Stanford campuses, do not have COVID-like symptoms, and that they are not in a restricted status requiring isolation or quarantine.

All visitors coming to a Stanford campus must attest that they meet at least one of two criteria:

1) be fully vaccinated against COVID-19

2) receive a negative COVID-19 test within 72 hours prior to arrival onsite

To attest, visitors must complete the Stanford Visitor: Daily COVID-19 Health Attestation, on the day of the event. Both the visitor and the Stanford contact will receive copies of the completed attestation form. Any visitor unable to attest, is NOT approved for onsite access.

On the Racist Revolutionary War Origins of the Atlanta Braves’ War Whoop

On the racist Atlanta Braves whoop:

1. Both the Atlanta Braves & Washington R-skins were originally “the Boston Braves.” Boston became “R-skins” in 1933, and then moved to Washington in 1937. The Boston Braves moved to Milwaukee in 1953 and then to Atlanta in 1966.

2. The origin of “Boston” and “Braves” was the Tea Party 1773: the Patriots’ disguise was war paint & feathers.

3. The Tea Party: Racists then, racists now

Please, No “General Attorney General”

In today’s Supreme Court oral arguments over Texas SB8 anti-abortion law, I think Solicitor General Prelogar was great.

But can we please call her “Solicitor General Prelogar” or “SG Prelogar” and not “General Prelogar”? I’ve seen much commentary today using the term “General” in this way. Calling AGs or SGs “General” was likely a mid 20thC drift toward the militarization of domestic law enforcement

See Michael Herz, “Washington, Patton, Schwarzkopf and…Ashcroft?” 19 Constitutional Commentary 661 (2002). “The practice of calling the AG & the SG ‘General’ should be abandoned… flatly incorrect by the standards of history, grammar, lexicology, and protocol.”

“The misuse of ‘general’ predates the recent uptitling epidemic, and the term is more than simply grandiose. There is no escaping its military connotations. Almost all generals are found in the Army (or Air Force, or Marines). Most people are slightly confused the first time they hear the AG or SG referred to as “General” precisely because the term’s primary meaning and its primary association are military. My guess is that the misuse of “general” is not only confusing for this reason, but attractive.
This cannot be proven, of course. But the military feel of
the term is so strong that it is hard to believe that its appeal is
independent of that feel. People are reassured, or impressed, by
having a general around. The adversary system, litigation “battles,” the common understanding of litigation as a kind of warfare, all these make the idea of putting a general in charge comfortable.
This impulse might be all the stronger since the September
11 attacks and the start of a “war on terrorism” in which the Department of Justice is a central player. In fact, President Bush
has half-jokingly referred to Ashcroft as a military general on
more than one occasion since September 11.”

“To call civil officials “general” because that word appears in
their title is incorrect by the standards of grammar, history, and
protocol. It is also a little silly. And it is at odds with important
values… [S]tick with attorneys and solicitors in the Department of Justice, and
leave the generals in the army.”

Garrett Epps notes today, “In 1971 I wrote a profile of Archibald Cox that said that his military bearing and commanding air led his colleagues to call him ‘the general.’ Later I found out it was because he’d been Solicitor General.”

Feint-Hearted Originalism

Justice Scalia once called himself a “faint-hearted originalist.” I’m thinking of titling an article or book “Feint-Hearted Originalism.”

Too snarky? Or too obscure? I just can’t believe no one has feigned this feint before, as far as I can tell.

“Feign means to give a false appearance or to fake something. Feint also involves deception, but usually refers to physical movements meant to distract an opponent, such as a fake punch…” @MerriamWebster

A Unitary Puzzle: Why do conservative decentralizers want to centralize?

This week or next, perhaps this morning in Collins v. Yellen, the Supreme Court may issue another decision advancing the unitary executive theory.

It’s a puzzle in several ways: why are the judges and academics who otherwise are decentralizing states-rights federalists and opponents of the modern administrative state so in favor of centralized and expansive presidential power over the administrative state – in ways that would tend to expand executive regulatory power?

The answer draws on the political bogeyman of the “deep state” and the modern culture war. It also draws on a long Anglo-American political framing of country vs court – the people vs. the insider elites, “Real America” vs. the secular “swamp.” Conservatives think that nationally/electoral college elected presidents are a more likely populist/pro-business/pro-religion check against secular elite egghead expert bureaucrats.

Before explaining, let me note that I am working on a book tentatively titled “The Imaginary Unitary Executive,” which you can find summarized here in an Atlantic article last summer and here in my amicus brief filed last fall in this case. My article “Vesting,” questioning the textual and originalist basis for the unitary assumptions of indefensibility and exclusivity, will appear in the Stanford Law Review in March 2022. SSRN link: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3793213 I also have a paper “The Real Decision of 1789,” on the First Congress’s rejection of the unitary model. SSRN link: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3597496. I also recommend Stephen Skowronek’s article.

The term “unitary executive” emerged in the 1920s, but it was apparently not used to describe the Founding era until the 1940s, and the phrase was not used widely until the 1980s. Why the 1980s? During the Reagan era, conservative politicians and scholars sounded a handful of themes that remain familiar today: The courts were too elitist. Congress was ineffective. The New Deal administrative state had grown too large and too independent. Beltway-insider bureaucrats were out of touch with the public, and needed more centralized presidential power to rein them in. A Cold War demanded a strong presidency.

It was attractive to project these perspectives back onto the Founding, and to imagine a singular president as the democratic representative of the American people during times of crisis. From Eisenhower to Reagan, the Republicans won 6 out of 9 presidential elections, and believed they had realigned a “silent majority” on presidential/national issues (the Cold War/national security plus cultural/religious issues). But the House continued in Democratic hands almost entirely 1930 to 1994. Thus there was more confidence in presidentialism for a nationalist/conservative presidential check on Congress.

It was a defense of Nixon’s conduct, too, both at the time and especially as a post hoc justification for his conduct during Watergate (and Robert Bork’s obedience to Nixon, too). Reaganites were happy to embrace it, but not all Reaganite judges bought it, neither Rehnquist nor O’Connor. But Scalia was more influential than either of them on the conservative legal movement.

Ultimately the two wings of the Reagan movement – Evangelicals and libertarians – bought it as an ideology. It makes sense that Catholic and evangelical conservatives believe in unitary hierarchical power vs. secular Deep State bureaucracies. All of these themes and grievances predated the tenures of George W. Bush, Dick Cheney, and Donald Trump. The unitary myth helped elevate them and centralize their power. On balance, the unitary theory protected and empowered Trump: it weakened Mueller’s investigation (because Mueller had to steer clear of Trump’s finances and aggressive subpoenas to avoid dismissal); it allowed Trump to dangle pardons and obstruct justice with a claim of impunity and presidential immunity; it strengthened Barr’s hand as an extension of Trump and limited the DOJ; it served as his successful defense during the Ukraine impeachment; and it delayed Congress’s subpoena powers and weakened all checks and balances.

The Madisonian separation of powers failed to stop Trump. Instead, federalism — the decentralization of election administration, a domain insulated from presidential interference unitary administration – was his downfall.

“Vesting”: Text, Context, Dictionaries, and Unitary Problems

My new paper up on SSRN here. [Update: the Stanford Law Review will be publishing my article in March 2022.]

“Vesting”: Text, Context, Dictionaries, and Unitary Problems

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3793213

Abstract:

“The executive Power shall be vested in a President of the United States of America.” The Executive Vesting Clause is one of three originalist pillars for the unitary executive theory, that as a strict separation of powers, the president possesses executive powers like removal, exclusive from congressional limitations (i.e., they are indefeasible).

However, unitary judges and scholars have not provided historical evidence that “vest” had such an original public meaning. This Article offers a close textual reading of the word “vesting” and an examination of its context, with the first survey of the available dictionaries from the era and the word’s usage in early colonial charters and American constitutions, the Convention, and ratification debates. The bottom line is that, in this era, the word “vest” did not connote exclusivity, indefeasibility, or a special constitutional status for official power. At best, the meaning of “vested” was unclear, and more likely, its ordinary meaning was a simple grant of powers without signifying the impermissibility of legislative checks and balances.

Modern assumptions about “vesting” for official powers are likely semantic drift from property rights and ahistoric projections back from the later Marshall Court doctrine of “vested rights.” They also reflect flawed assumptions about English royal removal powers, Blackstone, and the context of early American administration.

In the first survey of the word “vest” in fifty of the era’s available dictionaries from 1640 to 1846 (33 before 1787, 18 after 1787), this Article finds that they generally defined “vest” in terms of individual property rights (usually landed property) without any reference to official powers. Some legal dictionaries referred in Latin to full possession of land or estates, but this evidence is less relevant to ordinary public meaning and to offices. Few had any definitions related to offices and powers, and none referred to exclusive or indefeasible powers.

Other early constitutions (especially the Articles of Confederation), the Convention and Ratification debates, and related documents similarly reflect a limited meaning. The word “vesting” first appeared in the Convention in the Virginia Plan, in a context of relatively weak anti-unitary executive power. A method of “intratextualism” and the canon of expressio unius offer clues about the meaning of “vest” when used in constitutional contexts. Other clauses often used other words to convey exclusivity and completeness: “all,” “exclusive,” “sole,” and “alone.” However, those words are missing from the Executive Vesting Clause.

This research has implications for Article I and Article III “vesting” (both for and against claims about formal non-delegation and jurisdictional exclusivity). If the Executive Vesting Clause does not convey exclusivity (and given the weaknesses of relying on “take Care,” “faithful execution,” or the Decision of 1789), it is unclear what remains of an originalist argument for Free Enterprise, Seila Law, and indefeasible removal powers.

Celtics trade deadline: Wise small move.

The Celtics didn’t make a bigger move for Vucevic (a good center) or Aaron Gordon. Instead, they made a smaller move for good-shooting small forward/guard Evan Fournier, trading two 2d-round picks (they gave up nothing, other than using up some of their trade exception from the Hayward move).

Lots of people are complaining that Ainge didn’t make a bigger move with the trade exception of $27M that expires before next season. The team is stuck in a glut of .500 teams fighting for a low playoff seed. This move isn’t going to make the Celtics a championship team, but no move could do that this year. And yet I think this move makes sense to make a middling move, rather than nothing.

Maybe Ainge understands that this Celtics team needs to make the playoffs and compete, but doesn’t think it’s good enough to go all in. This team missed one opportunity last year, but it still has a 4-year window. Save draft picks and some trade exception money as capital for this winter, while competing for the playoffs now.

If the Celtics get just a bit better, they can grab the 4th seed. And this move does make them better. They were missing a big and a wing-shooter, but the price for good bigs was too high. Fournier allows them to decrease the playing time of their fragile and inconsistent point guards Kemba and Teague or their rookie Pritchard, and they can roll with this line-up:

PG/defensive stud Marcus Smart, wing shooter Fournier, Brown, Tatum, and a big (more time for Time Lord Robert Williams!!!). If Kemba keeps improving, then Fournier can mix in as a scorer when Brown and Smart come out.

They can win in the 1st round, and they can knock off any of the top-3 seeds if their chemistry improves – and if the other top teams don’t get better chemistry. Strange things can happen in the playoffs. It is not obvious that the Nets can stay healthy and can play defense. It is not clear that the Bucks or Sixers are so great or healthy. No one in the West is scary. So make sure to be in the mix this year, but don’t overpay for any of these players who would not have been a big difference maker.

I still think Ainge made a lot of mistakes over the past year. Not making the Hayward-for-Myles-Turner deal this fall was a big mistake, because they needed a legit big. But if Ainge is thinking about saving capital for next year, I’m fine with it. Don’t give up a ton for Vucevic now. And I think there are legit concerns that Aaron Gordon is an underachieving chemistry problem.

Last point: It was crucial to improve this year. Missing the playoffs this year would be a disaster for team growth and confidence. They need to be in position for a 4 seed, but most fundamentally, Ainge needed to make a move, to improve the team, and give a vote of confidence that this team is worth some investment. But the key is making a bigger at the end of this summer by trading the picks Ainge didn’t trade now.

The Right Call Not to Call Witnesses

Before people get upset about the House Democrats not calling witnesses:
I think they understood the chances have increased significantly over the past 48 hours of Trump being criminally prosecuted for Jan. 6 (with witnesses, a real judge, and full legal process).
Plus they can bring these witness during a state or federal prosecution of the Georgia call (because Trump’s conduct before snd during the riot is context and evidence of intent.

I had said earlier and often that Trump would not face prosecution: the speeches themselves were not criminal incitement.
But now: new questions of contacts before and during the insurrection arose. I think a criminal investigation is now likely, and an indictment is plausible.

I think the House managers have done a great job. The problem is the Senate “judge and jury,” and as we’ve seen, the GOP Senators are only interested in obstruction and partisan spin.
Let prosecutors investigate and then – in a real courtroom – get a clean shot at questions.

If this Senate trial called witnesses now:
1) It would have been an unprepared circus;
2) that GOP Senators would use to their advantage to muddy up the testimony and taint the testimony in bad faith;
3) and decrease legitimate need for prosecution. Only 1 bite at this apple.

And 4) A delayed Senate trial does interrupt other urgent business, when the Democrats cling to a precarious 50/50 “majority” and a death or illness among any one of those 50 would endanger Covid relief, judicial confirmations, administration confirmations, voting rights legislation (we need all the luck and every vote and every minute for this agenda). Plus it is obvious that witnesses won’t switch 10 Senate Republican votes.

A courtroom is the more effective venue to question, with more time to prepare and make cooperation agreements and plea deals. Flip more co-conspirators to get all the way up to the crime boss.

And don’t forget tort civil suits for the personal injuries during the riot, with discovery and depositions of Trump and his contacts:

Impeach an Ex-President? GOP Senators Reject Originalism 44 to 6

The Trump legal team is getting history wrong—and, oddly, the Senate GOP just voted against their own legal philosophy.

My piece in Politico:

The majority of Donald Trump’s defense against his second impeachment so far is that the trial being held in the Senate right now is unconstitutional. His lawyers devoted half their brief and half of their speaking time this week to arguing that the Senate cannot try former officers. Senate Republicans voted 44 to 6 in agreement.

But what did the authors of the Constitution say about the timing of impeachment? That answer should matter a lot to Republicans, who are known for placing great weight in “originalism” when they invoke the Constitution—the meaning of the document when written in 1787 and then ratified by the public.

And if that’s the standard, those 44 Republicans might want to think again. The historical record reflects that the original public meaning of impeachment included trying and disqualifying former presidents. Those Senators simply ignored what the Founders said, and effectively voted against originalism 44 to 6…

Conclusion:

Along with Trump, originalism was on trial this week in the Senate. The point of originalism—and I say this as an originalist legal scholar—is that our Constitution is not supposed to be a wordy document narrowly fixing every point of law, but a framework that depends upon historical context to find meaning and purpose. As Senator Sasse and then-nominee Amy Coney Barrett explained in a helpful exchange during her confirmation hearings, the text is not enough to understand what the Constitution calls for; that’s why, Barrett explained, the Fourth Amendment right against unreasonable searches applies to cars, cellphones, and heat detection outside houses.

Contradicting the arguments they conveniently invoke for judicial appointments, the vast majority of Republican Senators this week ignored the whole principle of originalism. The historical record before the Senate is clear: The founding generation understood that former officials can be impeached and tried. In looking at the Republicans’ vote this week, it’s hard not to say that the Republicans didn’t just get their history wrong: They imposed their own preferred meaning on the Constitution, following partisanship rather than historical evidence. They embraced the very lawlessness they claim to reject. They used Trump’s four years to fill the federal bench urgently with ostensible originalists. But when the rule of law is now on the line, the Senate Republicans effectively voted to disqualify “originalism” itself.