Presidential Signing Statements and Congressional Oversight

In response to highly controversial statements issued by President George W. Bush upon signing various bills into law, an American Bar Association Task Force and Senator Arlen Specter both recently called for the creation of a cause of action to obtain a federal judicial declaration concerning the legal validity of future presidential signing statements. This essay argues that such legislation would be ill-advised and counterproductive. It would exacerbate existing underlying institutional infirmities. More fundamentally, the inclination to facilitate immediate resort to the judiciary for resolution of a dispute between the political branches about the President\u27s constitutional obligations is premised on an unidentified, unjustified (and in my view unjustifiable) assumption about the relative roles of Congress and the Court. Specifically, the proposed law assumes that the Court, rather than Congress, is primarily responsible for ensuring that the President remains subject to the rule of law. This premise has matters backwards. Under our constitutional text, structure, and traditions, properly understood, Congress has far greater competence and legitimacy than do the courts to undertake the awesome task of compelling presidential compliance with the Constitution and laws of the United States. It is the judicial role in so doing that can be best understood as incidental and sharply circumscribed by concerns about competence and legitimacy. Indeed, absent longstanding congressional neglect of its many, powerful tools for disciplining the executive branch, routine and open presidential assertions of the intent to disregard statutory provisions just signed into law would be all but inconceivable. Were Congress to act on Senator Specter\u27s pending bill, the resulting legislation would further entrench this congressional neglect and atrophy the congressional muscles alone capable of resisting a truly lawless President. Ironically, the bill\u27s unintended but most significant long-term consequence would be to make all the more likely the kind of presidential usurpation of the law-making function that the ABA Task Force report and Senator Specter warn against

Retroactive Application of New Rules and the Antiterrorism and Effective Death Penalty Act

For three decades, the application of United States Supreme Court criminal procedure decisions has confused the Court\u27s habeas corpus jurisprudence. In 1999, the Court\u27s decision in Williams v. Taylor might have resolved the ambiguous relationship between the pre-1996 habeas corpus retroactivity decisions - the most significant of which was Teague v. Lane - and the habeas corpus reform provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Unfortunately, the Williams decision has only engendered further confusion. Two decades before Teague, the second Justice Harlan proposed an approach to retroactivity questions, arguing that a decision that announced a new rule of criminal procedure should not apply in federal habeas corpus proceedings reviewing criminal convictions that had become final before the new rule\u27s announcement. The Teague Court expressly adopted Justice Harlan\u27s suggestion, but the post-Teague opinions that addressed the subsidiary question of whether particular Supreme Court rulings constituted new rules greatly complicated the issue. In numerous decisions during the 1990s, a fragile majority of the Court employed such an expansive definition of the term new rule that the Justices effectively converted Justice Harlan\u27s retroactivity system into a deferential standard of review for state court decisions, even as to questions of federal law. The 1996 overlay of AEDPA\u27s ambiguous habeas corpus reform provisions aggravated the confusion created by the case law in the early 1990s. This Article seeks to clarify habeas corpus jurisprudence by advancing the counterintuitive claim that AEDPA, properly understood, compels the Court to revisit and narrow substantially its definition of new rules to honor the Act\u27s command that federal courts review pure questions of law de novo. The Article also articulates a standard for determining when a Supreme Court decision announces a new rule that better effectuates both AEDPA and Justice Harlan\u27s position on retroactivity

The Empirical Judiciary

This essay reviews David L. Faigman’s Constitutional Fictions: A Unified Theory of Constitutional Facts (Oxford U.P. 2008). Constitutional Fictions is a highly original book that promises to (and should) have an enormous impact on both constitutional law scholarship and practice. The book focuses on the methods, or lack thereof, that the Court employs in receiving evidence and resolving disagreements about questions of fact in constitutional cases. In doing so, the book does the legal profession an invaluable service by identifying and articulating the many frequently unspoken questions that arise in the context of judicial consideration and resolution of legislative facts in constitutional cases. The book also documents the largely unremarked ubiquity of these questions, the wide variety of circumstances in which they occur, and the depth of the theoretical issues they implicate. Professor Faigman accomplishes all this in crisp, lucid, and admirably concise prose. Nor could Professor Faigman’s book be more timely. Several of the Roberts Court’s most salient and controversial constitutional decisions have turned on questions of legislative fact. Constitutional Fictions treats an important topic with impressive insight. But it will not be the last word on the subject. When Constitutional Fictions finally comes round to normative and prescriptive analysis of the status quo, Faigman shies away from the broader implications of his critique. After reviewing Professor Faigman’s arguments, this review essay explores how alternative analyses might compel more sweeping changes than he suggests

The Third Death of Federalism

Federal drug laws proved a stumbling block to the Rehnquist Court\u27s attempted federalism revival. In its final year, the Court\u27s fragile federalism coalition splintered in a pair of cases arising under the Controlled Substances Act ( CSA ). Missing from the emerging legal literature concerning those two decisions is any substantive discussion of the Supreme Court\u27s much earlier, ill-fated efforts to preserve both judicial enforcement of the enumerated powers doctrine and federal narcotics laws. This article fills that gap. Ninety-odd years ago the Court arrived at the same jurisprudential juncture it now confronts. In the early decades of the twentieth century, the White and Taft Courts similarly faltered when the Justices professed dedication to federalism was tested by congressional overreaching in the name of guarding the people from narcotics and other temptations to perceived moral vices. In sustaining what the Justices no doubt believed to be laudatory federal morals regulations, they sowed the seeds of federalism\u27s first death twenty years later. For during the constitutional crisis of the 1930s, the Court\u27s critics pointed to this earlier compromise of federalism principles in their efforts to expose as pre-textual the Court\u27s invalidation of New Deal legislation on the ground that it exceeded Congress\u27s enumerated powers. This article explores the parallels between the neglected history of federal narcotics laws and the Court\u27s recent rulings in Gonzales v. Raich and Gonzales v. Oregon. The full significance of those decisions can be perceived only when they are viewed in the light cast by the turbulent history of federal narcotics regulation. Then and now, drug abuse provokes intense reactions, both physical and emotional. The history suggests that now, as then, the Court\u27s decisions may prove more portentous than they might at first appear. In addition, this parallel also begs more general questions about the feasibility of judicial efforts to enforce federalism. The final part of this article identifies and ventures some preliminary reflections on these issues

Constitutional Newspeak: Learning to Love the Affordable Care Act Decision

In his classic dystopian novel, 1984, George Orwell imagines a world in which language is regularly contorted to mean its opposite - as in the waging of war by the Ministry of Peace and infliction of torture by the Ministry of Love. A core claim of Orwell\u27s was that such abuse of language - which in his novel he labeled Newspeak -would ultimately channel thought. Whatever the merits of this claim as a theory of linguistics, constitutional developments too recent to be called history demonstrate that as a practical matter Orwell was on to something. The Court\u27s June 28 decision both upholding and invalidating the Affordable Care Act ( ACA or the Act ) is both a product and an example of constitutional Newspeak. For the last two years, the question of the constitutionality of the ACA deeply divided public opinion, the legal profession, the lower federal courts, and ultimately the Supreme Court of the United States. Throughout all the exhaustive and exhausting debates, editorials, discussions, arguments, and opinions, however, one legal proposition commanded complete accord: that Congress\u27s Commerce Clause powers were subject to judicially enforceable limits. It is no small irony, then, that this universally recognized legal proposition happens to be false. Indeed, it has not been true for almost a century, is not true today, and will not be true for the indefinite future. Moreover, the falsity of this proposition cannot be news to anyone. Time and again, throughout the twentieth century and so far as we have come in the next, the Court has demonstrated that it is either unwilling or unable to impose meaningful constraints on Congress\u27s power under the Commerce Clause. To be sure, the Court has assiduously avoided acknowledging this reality. It has, instead, reliably carried forward in its opinions sententious declarations to the contrary - proclamations of its somber but inalienable duty to prevent Congress from straying past its bounds. Patently false, these claims nonetheless shaped and ultimately governed the Commerce Clause controversy generated by the ACA. At every turn in the ACA litigation, the Act\u27s defenders were hindered by their not having the words to make their case forthrightly. This constraint not only accorded the challenger\u27s constitutional claim more oxygen than it deserved, but may have also figured in the self-delusion necessary for so many, on and off the bench, to find the claim so compelling. During the greater part of the twentieth century, the reality of judicial abdication of any duty to enforce the enumerated powers scheme was at first merely unspoken, later became unspeakable, and ultimately came to be virtually unthinkable. The two-year-long debate over the constitutionality of the ACA was the culmination of six decades of constitutional Newspeak. Or so this manuscript argues. It also explores some questions this account raises for the future health of our constitutional order

Constitutional Forbearance

This essay begins by developing the concept of constitutional forbearance and exploring the role it plays in the craft of good judging. This first Part also illustrates what is meant by constitutional forbearance by recovering a forgotten but illustrative example from a century ago. Part II then argues that the need for forbearance has at present become unusually acute. Finally, in Part III this essay identifies some of the qualities of the Obama care cases that make them such singular opportunities for the exercise of this much needed judicial virtue and answers some anticipated objections to thinking about the cases in this way

Constitutional Forbearance

This essay begins by developing the concept of constitutional forbearance and exploring the role it plays in the craft of good judging. This first Part also illustrates what is meant by constitutional forbearance by recovering a forgotten but illustrative example from a century ago. Part II then argues that the need for forbearance has at present become unusually acute. Finally, in Part III this essay identifies some of the qualities of the Obama care cases that make them such singular opportunities for the exercise of this much needed judicial virtue and answers some anticipated objections to thinking about the cases in this way