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Abstract:
When executive actors interpret statutes, the prevailing assumption is that they can and should use the tools that courts use. Is that assumption sound? This Article takes up the question by considering a rule frequently invoked by the courts - the canon of constitutional avoidance.

Executive branch actors regularly use the avoidance canon. Indeed, some of the most hotly debated episodes of executive branch statutory interpretation in recent years - including the initial torture memorandum issued by the Justice Department's Office of Legal Counsel, the President's signing statement regarding the McCain Amendment's ban on the mistreatment of detainees, and the Justice Department's defense of the National Security Agency's warrantless wiretapping program - feature prominent reliance on the avoidance canon. Typically, such reliance is supported by citation to one or more Supreme Court cases. Yet those citations are rarely accompanied by any discussion of the values courts try to serve when they employ avoidance. Are those values specific to the federal judiciary - for example, facilitating judicial deference to legislative majorities - or do they reflect substantive commitments extending beyond the courts? Equally lacking is any sustained consideration of interpretive context: Does their particular institutional location and function enable executive actors to call upon sources of statutory meaning that are unavailable to courts, rendering rough tools like the avoidance canon unnecessary?

This Article explores executive use of the avoidance canon along both these dimensions. As to theoretical justification, I show that whether constitutional avoidance is appropriate in the executive branch turns on whether one accepts the conventional account of the canon, which sees it as serving values specific to the federal judiciary, or an alternative account, which views it as serving a set of broader norms not confined to the courts. As to interpretive context, I show that because executive officials often have better access to and knowledge of statutory purpose than do the courts, some facially ambiguous texts may in fact be entirely unambiguous to the executive interpreter. In those circumstances, the avoidance canon has no role to play.

Overall, although this Article focuses on executive uses of the avoidance canon in particular, the aim is to contribute to the development of a methodology for analyzing executive branch statutory interpretation in general.

executive branch, statutory interpretation, constitutional avoidance, separation of powers, war on terror, signing statements

Abstract:
This review essay discusses Randy Barnett's new book, Restoring the Lost Constitution: The Presumption of Liberty. In general terms, the book argues that current constitutional doctrine grants too much power to federal and state legislatures, and provides too little protection to individual liberty. To remedy the problem, Professor Barnett proposes abandoning the presumption of constitutionality that courts typically accord to state and federal laws, and adopting in its place a presumption of liberty that, he contends, is more consistent with the Constitution's original meaning.

In this review, I discuss four points on which Restoring the Lost Constitution gives me pause. First, the book proceeds from an extra-textual political theory that is difficult to square with the actual framing of the Constitution, a dilemma that is particularly acute for Professor Barnett since he defends a form of originalism as the appropriate mode of constitutional interpretation. Second, Professor Barnett's defense of an original meaning approach to constitutional interpretation features a rather strained attempt to analogize constitutions to contracts, and, in the process, slights competing accounts of constitutional interpretation. Third, especially in his discussion of the state police power, Professor Barnett operationalizes his presumption of liberty by injecting into the Constitution a number of remarkably unstable conceptual distinctions. Fourth and finally, Professor Barnett's argument for a generalized jurisprudence of liberty neglects the extent to which particular articulations of liberty in our constitutional system may be linked to another core constitutional value: equality. Greater attention to a liberty-equality link could yield a significantly different, and better grounded, understanding of the appropriate constitutional balance between government power and individual freedom.

The Cornell Law Review will publish a reply from Professor Barnett in the same issue as this review.

Abstract:
Although the executive detention of individuals outside the criminal justice system implicates the historical core of the writ of habeas corpus, there persists in this area a remarkable amount of disagreement over the nature of habeas corpus and its place in our constitutional system. This phenomenon is especially evident in Hamdi v. Rumsfeld, the 2003 Supreme Court case involving a challenge to the executive branch's detention, without charge, of a U.S. citizen alleged to be an enemy combatant. The case divided the Court, producing four opinions in all. Two of those opinions - a plurality by Justice O'Connor and a dissent by Justice Scalia - are particularly intriguing, especially when read against one another. Although both opinions adopted positions substantially favoring the alleged enemy combatant, they did so in radically different ways, reflecting starkly opposed visions of habeas corpus and the Suspension Clause, and, more deeply, the nature of the separation of powers in our constitutional system.

This article takes up those differences. In particular, I aim to show that although Justice Scalia's dissent has been widely hailed as the most liberty-protective of all the Hamdi opinions, in fact it could, if adopted more broadly, pose a serious threat to the safeguards of liberty built into the law of habeas corpus and the Constitution itself. According to Justice Scalia, the government's only options with respect to U.S. citizen detainees are to charge them criminally, release them, or convince Congress to suspend habeas corpus. The problem, I argue, lies with the suggestion in the third of these options that suspending the writ is necessary and sufficient to authorize otherwise-unlawful detention. I contend that this view is both formally untenable and functionally undesirable. Formally speaking, suspending the writ simply removes a judicial remedy. It does not authorize any executive action that was not already permitted; unlawful detention remains unlawful even after the writ is suspended. Functionally speaking, Justice Scalia's approach requires one branch of government (the judiciary) to be read out of the equation in order for another (the executive) to act. But that is contrary to the basic principle of checks and balances established by the constitutional separation of powers.

In contrast, Justice O'Connor's approach preserves a role for all three branches even in times of national security crisis. On one hand, by permitting Congress to authorize the executive branch to engage in extraordinary executive detention, Justice O'Connor embraced a process-based, institutionally oriented approach in the tradition of Justice Jackson's famous concurrence in the Steel Seizure Case. That is, Justice O'Connor adopted a judicial approach that privileges, and largely defers to, the joint action of the legislative and executive branches. On the other hand, Justice O'Connor also preserved for the courts a vital role in ensuring that the executive's use of the authority conferred by Congress comports both with the scope of the statutory grant and with basic constitutional demands. In this respect, her approach combines a general focus on second-order questions of institutional process with an attentiveness to at least some basic, first-order constitutional values. This approach, I argue, is most consistent with the three-branch structure of the Constitution.

habeas corpus, suspension, enemy combatant, detention, separation of powers, Youngstown

Abstract:
What happens when Congress suspends the writ of habeas corpus? Everyone agrees that suspending habeas makes that particular - and particularly important - judicial remedy unavailable for those detained by the government. But does suspension also affect the underlying legality of the detention? That is, in addition to making the habeas remedy unavailable, does suspension convert an otherwise unlawful detention into a lawful one? Some, including Justice Scalia in the 2004 case Hamdi v. Rumsfeld and Professor David Shapiro in an important recent article, answer yes.

This Article answers no. I previously offered that same answer in a symposium essay; this Article develops the position more fully. Drawing on previously unexamined historical evidence, the first half of the article shows that treating suspension of the writ as legalizing detention is at odds with the dominant historical understanding in both England and the United States. According to that understanding, suspension affects neither the legality of detention nor the availability of post detention remedies (like money damages) for unlawful detention. Suspension of the writ, post detention liability, and legality are distinct questions.

My aims go beyond providing a positive account of suspension, however. In the second half of the Article, I examine a set of broader issues that my account of suspension raises but that the current literature almost entirely overlooks. The core question here is this: If suspension does not equal legalization, what are the roles and obligations of the legislative and executive branches when the writ is validly suspended? I suggest ways to think about those branches' independent obligation to uphold and enforce the Constitution during periods of suspension, especially with regard to constitutional norms that might seem to be associated exclusively with the courts. In that respect, the article uses suspension as a window into larger issues regarding the theory and mechanics of constitutional interpretation and implementation outside the courts.

Abstract:
This Article examines a new constitutional challenge to the private attorney general. At its core, the private attorney general is a private plaintiff who sues to vindicate public interests not directly connected to any special stake of her own. In Nike v. Kasky, a case ostensibly about the Supreme Court's commercial speech doctrine, the Solicitor General of the United States urged the Court to adopt a special First Amendment limitation on private attorneys general. Specifically, he argued that the First Amendment should prohibit private plaintiffs from enforcing speech regulations except to the extent they seek compensation for their own individual injuries. At the same time, he maintained there should be no bar to direct government enforcement of identical regulations even in the absence of any showing of injury. In other words, the Solicitor General invited the Court to distinguish between publicly and privately enforced speech regulations, and to announce a rule generally preferring the former over the latter. The Court ultimately dismissed Nike without a decision, but not before a number of justices expressed apparent support for this public/private distinction. The issue is bound to return to the Court before long.

I argue in this Article that a categorical First Amendment preference for public over private enforcement cannot be squared with existing free speech doctrine or the principles underlying it. To the contrary, as a general matter, the First Amendment properly regards private enforcement of speech-related laws as neither more nor less threatening to free expression than public enforcement. I also suggest, however, that the distinction between public and private enforcement urged in Nike is more than merely an unpersuasive First Amendment argument. Rather, it should be viewed against the backdrop of a number of efforts by the Supreme Court over the last decade to limit the power and influence of private attorneys general in a whole range of substantive areas, while leaving the government a relatively free hand to enforce the laws directly. To the extent this new public/private distinction seems attractive to the Court despite its doctrinal shortcomings, the reason may be that it seems to offer a novel means of advancing the Court's policy-preferred end of elevating public over private enforcement. And that preference may, in turn, reflect a more fundamental hostility to regulation itself.

private attorney general, First Amendment, overbreadth, Supreme Court, citizen suit, qui tam, false advertising

Abstract:
According to the National Association of Attorneys General, "the rise of preemption of state laws and regulations by federal administrative agencies, rather than directly by Congress" is "[p]erhaps the most significant development in federal preemption in the last several decades." This kind of preemption is typically claimed in an agency ruling or regulation declaring certain state laws or activities preempted, even though the underlying statute says nothing about preemption in those areas. That an association of state attorneys general would view "agency preemption" as particularly worrisome is hardly surprising: the main casualties are often state attorneys general, whose broad investigative and enforcement powers under state consumer protection, health, environmental, and other state laws are displaced by the agency's action.

This paper, which will appear as a chapter in a book on preemption edited by William Buzbee and to be published by Cambridge University Press, examines the implications of agency preemption for state attorneys general, and vice versa. Its principal intended audience is not so much the courts as Congress and the federal agencies; its prescriptions are less about judicial doctrine (though there are implications along those lines) than about choices the legislature and agencies could make to better accommodate the important functions of democratically accountable state attorneys general. As to Congress, I suggest that it should directly address whether any or all of the work of state attorneys general should be preempted by any particular enactment it passes, and should include a provision making clear the extent of its intent to preempt. As to agencies, I suggest that, in the absence of clear statutory language addressing the question, they should be reluctant to promulgate regulations preempting the investigatory or enforcement authority of state attorneys general. Unlike the Supreme Court's current "presumption against preemption," the approach I advocate does not turn on the particular subject matter of the state or federal law in question. Instead, it focuses on the identity of the actor enforcing the state law.

Abstract:
Disputes over forum often center on whether a case should proceed in state or federal court. Removal to federal court can trigger a costly forum struggle. When a state case is removed to federal court only to be sent back to state court, the time and resources incurred in the detour are a toll on the judicial system and waste parties' resources. We find erroneous removal to be an increasing problem. From 1993 to 2002, a period when state tort filings noticeably decreased, the number of removed diversity tort cases increased by about 10% to about 8,900 per year. By 2003, removed cases comprised over 30% of the federal diversity docket. The percentage of removals ultimately remanded to state court increased significantly to about 20% in 2003, with the remand rate exceeding 50% in some districts. Thus, as more cases purporting to satisfy diversity jurisdiction were being removed to federal court, and just as removals were occupying an increasing part of the federal docket, removed cases were being remanded to state court at increasing rates. Erroneous removal is a growing phenomenon that should be addressed as part of serious consideration of tort reform.

Removal, remand, tort reform, litigation, procedure

Abstract:
This is a short response, published in Pennumbra (the online companion to the University of Pennsylvania Law Review), to Gil Seinfeld's recent article, "The Puzzle of Complete Preemption."

I first sound some notes of agreement with Professor Seinfeld's critique of the Supreme Court's complete preemption doctrine. I then turn to his proposed reshaping of the doctrine around the interest in federal legal uniformity. Although certainly more satisfying than the Court's account, Professor Seinfeld's refashioning of the doctrine raises a number of new difficulties. In particular, it invites the federal courts to engage in a range of line-drawing exercises to which they may not be especially well suited. I conclude by suggesting that the difficulties raised by Professor Seinfeld's refashioning support the view that complete preemption should depend on congressional intent, not judicial invention.

federal courts, jurisdiction, preemption, separation of powers

Abstract:
This chapter, prepared for Presidential Power Stories (edited by Christopher Schroeder and Curtis Bradley), tells the story of United States v. United States District Court for the Eastern District of Michigan, better known as the Keith case. Keith is the Supreme Court's first and still most important statement on the extent to which the President, acting in the interests of national security, may authorize the warrantless wiretapping or other electronic surveillance of persons within the United States. The case began as a criminal prosecution of members of the radical White Panther Party for the bombing of a CIA office in Ann Arbor, Michigan. It took a turn when the government disclosed before trial that one of the defendants had been overheard on a warrantless federal wiretap of domestic organizations that the Attorney General deemed threats to national security. This put the legality of the wiretap in issue. In what the New York Times called a stunning legal setback for the government, the Court concluded that Fourth Amendment freedoms cannot properly be guaranteed if domestic security surveillance may be conducted solely within the discretion of the Executive Branch. Thus, the Court held, a judicial warrant must issue before the government may engage in wiretapping or other electronic surveillance of domestic threats to national security. But the Court also limited its holding to cases involving the domestic aspects of national security, and express[ed] no opinion as to [the surveillance of the] activities of foreign powers or their agents. Both in what it said and what it did not say, Keith has exerted great influence upon the judicial, legislative, and executive approaches to these issues in the years since, including on Congress's passage in 1978 of the Foreign Intelligence Surveillance Act, or FISA. As of this writing, it is still the case that the Supreme Court has never upheld warrantless wiretapping within the United States, for any purpose.

Abstract:
When, if ever, may a State prosecute a federal officer for violating state criminal law while discharging his federal duties? Over the past decade, developments in the doctrines associated with federalism have redefined the constitutional status of federal attempts to regulate the States. The question posed here implicates the opposite, rarely examined, side of federalism's coin: the extent to which the Constitution constrains state attempts to regulate the federal government and its agents. It has been clear for over a century that federal officers enjoy some degree of immunity in this area, but the precise scope of, and basis for, that immunity - known as Supremacy Clause immunity - remain unclear.

This Article seeks clarity. Drawing on recent litigation arising out of the 1992 standoff between federal law enforcement officers and armed separatists at Ruby Ridge, Idaho, it argues that federal officers acting within the scope of their employment should be immune from state prosecution for any action taken that they reasonably believe is necessary and proper to the performance of their federal functions. State criminal law, in other words, must not be applied so as to chill federal officers in the discharge of their federal duties as they reasonably understand them. In articulating this standard, the Article draws on related doctrines like qualified immunity in the civil context and on principles of preemption as derived from foundational cases like McCulloch v. Maryland. In addition to supporting the Article's view of the proper scope of Supremacy Clause immunity as a default matter, these analogies confirm that the degree of immunity in this area is largely subject to congressional control. Congress, the Article suggests, could completely immunize federal officers from state prosecution for conduct taken in the discharge of their duties, or it could expose federal officers to the full force of state law. Either congressional choice would change what a reasonable federal officer would think about the scope of his federal authority vis-a-vis contrary state law, thus recalibrating the scope of his immunity.

At bottom, Supremacy Clause immunity is concerned with resolving conflicts between state and federal law. Where the application of state law threatens the effectuation of federal law or policy, the Supremacy Clause provides a federal trump. This attention to actual state-federal conflict, the Article suggests, should inform courts' approaches to a whole range of issues of overlapping federal and state power. Rather than making categorical judgments about the division of sovereign power, courts should instead be attentive to the extent of actual conflict between state law and federal functions.