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Abstract:
The nondelegation doctrine may be dead as doctrine, but it is very much alive as a subject of academic study. Concurring opinions by Justices Thomas and Stevens in the American Trucking case raise anew the question whether the nondelegation doctrine has any grounding in the Constitution's text and structure. The answer is "yes." The nondelegation doctrine flows directly from the doctrine of enumerated powers: the executive and judiciary have no enumerated power to make law, and Congress has no enumerated power to constitute them as lawmakers. The correct formulation of the Constitution's nondelegation doctrine was outlined by Chief Justice Marshall in 1825, and no one has improved on his formulation in nearly two centuries.

Abstract:
The Constitution's Orders, Resolutions, and Votes Clause, U.S. Const. Article I, Section 7, Clause 3, requires presentment to the President of every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) . . . before the Same shall take Effect. The conventional wisdom, bred more than 200 years ago by James Madison, holds that this clause simply prevents Congress from evading the presentment requirement for bills in Article I, Section 7, Clause 2 by labeling legislative action something other than a bill. Seth Tillman, however, argues in a forthcoming article that the clause imposes a presentment requirement on single-house action taken pursuant to prior bicameral authorization. See Seth Barrett Tillman, A Textualist Defense of Article I, Section 7, Clause 3: Why Hollingsworth v. Virginia Was Rightly Decided, and Why INS v. Chadha Was Wrongly Decided. Mr. Tillman is likely correct, but he does not clearly identify the classes of single-house action to which this provision might refer. I elaborate on Mr. Tillman's important work by arguing that the most significant, and perhaps the only, single-house actions subject to this clause are the issuance of legislative subpoenas. Neither house of Congress has an enumerated power to issue such subpoenas, but bicameral authorization for their issuance could come from legislation under the Sweeping Clause of Article I, Section 8, clause 18. On this understanding, the Orders, Resolutions, and Votes Clause then requires each subpoena to be presented to the President for signature or veto before the Same shall take Effect. This presentment requirement for subpoenas makes sense as a matter of both text and structure.

orders, resolutions, votes, presentment, subpoenas

Abstract:
Conventional wisdom and Supreme Court doctrine hold that the federal Constitution became legally effective on March 4, 1789, when the first session of Congress began. This conclusion is wrong, or at least seriously incomplete. Evidence from the Constitution, its adoption, and contemporaneous understandings reflected in treaties, statutes, and state constitutions demonstrates that the Constitution did not have a single effective date. Instead, different parts of the Constitution took effect in stages, beginning on June 21, 1788, when New Hampshire became the ninth state to ratify the document, and continuing at least until April 30, 1789, when President Washington was sworn into office. One must examine each provision to determine to which stage of constitutional effectiveness it belongs. The provisions of the Constitution that limit the power of state governments, for instance, took effect at the first stage and were therefore enforceable law as of June 21, 1788. This understanding has potentially significant consequences for certain litigation involving Native American land claims.

Abstract:
The Treaty Clause of the federal Constitution declares that the President "shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur." The consensus of doctrine, history, and scholarship, exemplified by the holding in Missouri v. Holland, 252 U.S. 416 (1920), is that the Treaty Clause affirmatively grants to the President and Senate a free-standing, quasi-legislative power that contains no internal constitutional limitations. Thomas Jefferson notably disagreed. Jefferson viewed the treaty power as a purely implementational power that could only be used to effectuate other federal powers. From the standpoint of original meaning, Jefferson was right.

In this article, we defend a Jeffersonian conception of the Treaty Clause. The Treaty Clause grants no power to the President that he or she does not otherwise possess by virtue of the "executive Power" vested by the first sentence of Article II (though it does grant power to the Senate). Moreover, the Treaty Clause is subject to substantial, albeit subtle, constitutional limitations on its exercise: analogously to the so-called Necessary and Proper Clause, treaties can only be used to carry into effect other federal powers through necessary (reasonably tailored) and proper (proportionate and rights-regarding) means. The crux of our argument is structural. The Treaty Clause is located in Article II. All of the powers granted to the President in Article II stem from the Vesting Clause of that Article. The subsequent provisions in Article II such as the Treaty Clause, notwithstanding their occasional grammatical formulations as seeming grants of power, merely clarify, qualify, and/or limit that basic power grant. Once the Treaty Clause is understood as a clarification and qualification on an otherwise-granted "executive Power," its implementational character follows directly. Executive power by its nature is generally implementational and therefore can only effectuate other federal powers, even without textual specification to that effect. Similarly, executive power is by its nature subject to the principle of reasonableness, which requires exercises of delegated implementational power to be measured, proportionate, and rights-regarding, even without textual specification. The nature of the treaty power as an aspect of the Article II executive power serves as an implicit "necessary and proper" limitation on the exercise of the power. We defend this position through textual, structural, consequentialist, and epistemological arguments.

treaty, treaty clause, executive power, Jefferson

Abstract:
Professor Michael Stokes Paulsen has recently urged enactment of a congressional statute that would limit the judicial use of precedent in constitutional cases. Although I share Professor Paulsen's general views on precedent, his proposed statute is unconstitutional. Congress does not have power to regulate by statute the decisionmaking processes of federal courts, even when those decisionmaking processes are themselves unconstitutional. Congress' sole remedy is impeachment and removal of judges who improperly decide cases. This assessment of congressional power calls into question many familiar practices, such as statutes regulating scope of review, statutes prescribing rules of evidence for courts, and statutes regulating judicial remedies.

Abstract:
Mathews v. Eldridge, which addresses the procedures that must be provided for deprivations of life, liberty, or property under the Due Process Clauses, and Penn Central Transportation Co. v. City of New York, which guides inquiry into when governmental regulations rise to the level of takings of property that require just compensation, are decisions with near-canonical status. Mathews and Penn Central have some noteworthy parallels. Each decision is widely regarded as prescribing a three-factor test for resolving questions that arise under its respective domain. Each decision is almost universally decried as unworkable, incomplete, subjective, and incapable of consistent application. And each decision is, we think, largely misunderstood.

In this article, we demonstrate that neither the Mathews nor Penn Central decisions actually set forth tests - much less three-factor tests - for resolving issues. Rather, each decision had the far more modest, but nonetheless important, goal of providing a common language for lawyers and judges to employ when conducting inquiries about constitutional procedures or regulatory takings, both of which are doctrinally oriented around a search for basic fairness. The decisions do no more, and no less, than to provide a framework within which issues of fairness can be explored and discussed through the formal, stylized channels of an adversarial legal system. We show that the so-called Mathews test was not the creation of the Supreme Court; it was constructed by the Solicitor General's office, and endorsed by the AFL-CIO as amicus for Eldridge, as a way of focusing attention on key features of procedural fairness that had specific relevance to the facts in Mathews. The Penn Central Court similarly gave no indication that it was prescribing any kind of decision-making methodology, and it identified only two basic factors - the impact on property owners and the character of the governmental action - that bore on the regulatory takings inquiry. Subsequent decisions and commentators have often treated these frameworks as actual vehicles for decision-making, but that is neither sensible nor faithful to the frameworks' original conceptions. Once Mathews and Penn Central are properly understood as vehicles for shaping dialogue about fundamental fairness, they make a good measure of jurisprudential sense, especially if the Penn Central framework in particular is reconstructed to conform more closely to its original model. Accordingly, we propose some modest clarifications to the Penn Central framework that better allow it to serve its true conversation-shaping function.

due process, procedural due process, takings, regulatory takings

Abstract:
International and constitutional law arguably collide in the legal arrangement between the United States and Puerto Rico. As a matter of international law, it is unclear that this arrangement conforms to customary international and treaty obligations. As a matter of national law, it is unclear that the Constitution permits an arrangement between Puerto Rico and the United States—short of separation (independence as a State) or integration (admission to the Union as a state)—that could conform to these international obligations. In particular, the Appointments Clause and the Constitution’s voting provisions may well be in tension with contemporary international law relative to Puerto Rico. In this article, we seek, partly through an internal dialogue, to clarify several unacknowledged or underappreciated legal tensions in the U.S.-Puerto Rico relationship and to explore ways to resolve them. One of us adopts a plain-meaning, originalist view of the Constitution, which underscores the arguable constitutional defects in the current U.S.-Puerto Rico relationship. The other does not embrace originalism and therefore would not exclude resolution of the tensions between international and constitutional law by means of constitutional interpretation. We agree, however, that those tensions can no longer be neglected in a State committed to the rule of law and that several of the most troubling can be resolved—with a modest amount of political will and creativity—in a manner that effectively elides the oft-intractable debates in modern constitutional theory: substantive, even if not formal, international legal compliance can be uncontroversially established. Above all, we seek to reframe and facilitate a long-overdue discussion about how to reconcile U.S. international obligations toward Puerto Rico with the Constitution.

Puerto Rico, associated state, Appointments Clause, Territories Clause, decolonization, Trusteeship Council, self-determination

Abstract:
The Emergency Economic Stabilization Act of 2008, a.k.a. 'the bank bailout bill,' engendered a fair degree of political controversy during and after its enactment but relatively little constitutional controversy. That is unfortunate, and at least a bit puzzling, because, as a matter of original meaning, the statute raises important constitutional questions along at least four dimensions: it is questionable whether Congress had the enumerated power to authorize the Treasury Department to purchase securities, the specific authorizations were sufficiently vague to raise serious questions under the nondelegation doctrine, the expansion of the powers of the Secretary of the Treasury under the statute make it quite possible that then-Secretary Henry Paulsen could not implement the Act in 2008 without a new appointment under the Appointments Clause, and President Bush’s unilateral decision to use some of the bank bailout money to subsidize automobile companies and unions reflects a truly stunning assertion of executive power. This essay, which is an extended version of remarks delivered on a panel on 'The Administrative State and the Constitution' as part of the Federalist Society’s February 27-28, 2009 student symposium entitled 'Separation of Powers and American Constitutionalism,' sketches these four legal problems with the EESA and relates them to broader themes regarding the place of the modern administrative state in the constitutional order.

The Emergency Economic Stabilization Act of 2008, EESA, the bank bailout bill, American Constitutionalism, separation of powers, securities

Abstract:
In Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519 (1978), the Supreme Court unanimously and stridently chastised the D.C. Circuit for forcing the Nuclear Regulatory Commission to employ procedures such as discovery and cross-examination in a notice-and-comment rulemaking when no organic statute, regulation, or constitutional provision required it. Vermont Yankee is almost universally regarded as one of the most important administrative law decisions issued by the Supreme Court. For the past three decades, various scholars, most notably Paul Verkuil and Richard Pierce, have been anticipating, and urging, a "Vermont Yankee II," in which the Court would similarly invalidate other administrative law doctrines. These prior calls for a Vermont Yankee II were not actually attempts to extend the reasoning and holding of Vermont Yankee. Rather Vermont Yankee was employed as a broad symbol - a metaphor of sorts - for Supreme Court intervention to reign in undue lower-court interference with agency discretion and autonomy. There are a significant number of important administrative law doctrines that seem to us to fly squarely in the face of all but the most unreasonably narrow understandings of the Vermont Yankee decision. These doctrines, ranging from the prohibitions on agency ex parte contacts and prejudgment in rulemakings to the expanded modern conception of the notice of proposed rulemaking, are all ripe for reconsideration. In this paper, after setting out the Vermont Yankee decision, we examine previous calls for a "Vermont Yankee II" and explain, in light of what we characterize as the "natural reading" of Vermont Yankee why the regulation of ex parte contacts and agency prejudgment in rulemakings, and mainstream applications of the APA's notice requirements violate the holding of Vermont Yankee as properly understood, as well as the principles and policies underlying the decision. Rejecting these doctrines is thus the appropriate target for a Vermont Yankee II.

rulemaking, administrative law, Vermont Yankee, judicial review