Interpreting Presidential Powers

Justice Holmes famously observed that [g]reat cases . . . make bad law. The problem may be especially acute in the domain of national security, where presidents frequently interpret their own powers without judicial review and where executive precedents play a large role in subsequent interpretive debates. On the one hand, some of the historical assertions of presidential authority that stretch constitutional and statutory language the furthest seem hard to condemn in light of the practical stakes. On the other hand, to credit the authority of executive precedent risks leaving the president dangerously unbound. To address the conundrum posed by executive precedent, this Article proposes a two-tiered theory for the interpretation of presidential powers. Framed as an analogy to a position in moral philosophy known as threshold deontology, two-tiered interpretive theory treats rules that restrict executive power as normally inviolable, not subject to a case-by-case balancing analysis. Analogously to threshold deontology, however, two-tiered theory also recognizes that when the costs of adherence to ordinary principles grow exorbitantly high, extraordinary interpretive principles should govern instead and should result in the upholding of broad presidential power. For reasons that the Article explains, resort to extraordinary reliance on second-tier justifications for assertions of sweeping executive authority involves a legal analogue to dirty-handed moral conduct and should be labeled accordingly. And executive precedents set in extraordinary, second-tier cases should not apply to more ordinary ones. Through its conjunction of elements, two-tiered interpretive theory furnishes analytical and rhetorical safeguards against executive overreaching, but also allows accommodations for truly extraordinary cases

The Many and Varied Roles of History in Constitutional Adjudication

Part I presents the thesis that the Supreme Court frequently undertakes a multiplicity of history-based inquiries and weighs a variety of historically grounded considerations. Part I also argues (as some originalists recognize, but stringently exclusive originalists do not) that the original meaning of constitutional language was frequently vague or indeterminate. Accordingly, the Constitution’s application to current issues would often require a mix of historical and normative analysis even if original history were the only kind of history that mattered. Part II offers a preliminary exploration of why so many kinds of historical inquiry bear on constitutional and sometimes on statutory cases. Part III advances a jurisprudential argument in favor of a multi-factored approach to constitutional decisionmaking. Arguing that the foundations of law, including American constitutional practice, necessarily reside in social facts involving what is accepted as binding law, Part III establishes the radical, revisionary character of calls for exclusive originalism. Part IV defends what—adapting vocabulary from Professor David Strauss—I call a common law approach to determining the relative importance of varied kinds of historical phenomena in reaching conclusions of constitutional law. It analyzes a mixture of “easy” and “hard” federal courts cases to illustrate that almost no one, outside the context of a methodological debate about how to resolve understandably disputable cases, actually is an exclusive originalist, but that widespread convergence of judgment about the proper decision of constitutional cases typically occurs anyway. Part IV explains calls for exclusive originalism as the product of a largely misplaced anxiety about untrammeled judicial subjectivity. Part V provides a brief conclusion

Constitution Day Lecture: American Constitutionalism, Almost (But Not Quite) Version 2.0

On February 7, 2012, a front-page article in The New York Times reported that the Constitution of the United States has ceased to be the leading model for constitution-writers in other countries. According to The Times, and to the law review article on which The Times based its report, the U.S. Constitution has fallen increasingly out of alignment with an evolving international consensus regarding the individual rights that a constitution ought to protect. In addition, the constitutions of other countries copy the structural provisions of the U.S. Constitution—involving federalism and the separation of powers—far less frequently than they once did. As the editors of The Times undoubtedly anticipated when they put their story on the front page, the news that other countries no longer regard the Constitution of the United States as a paradigm of excellence seems likely to provoke a shock of surprise in many American minds. Questions follow. Why have other countries ceased to treat the U.S. Constitution as a prototype? By reflecting on what others might view as deficiencies in our Constitution—most of which was written in the eighteenth century—can we achieve an enhanced understanding of the respective ways in which it may serve us well and badly in the twenty-first century? And if so, how should we go forward

Reflections on the Hart and Wechsler Paradigm

The Federal Courts field may be experiencing a methodological crisis, but if so, it is a methodological crisis of a peculiar kind. The problem is not that new methodologies threaten traditional modes of analysis. On the contrary, the difficulty is that we have been doing largely the same thing for more than forty years--asking much the same questions formulated by Henry Hart and Herbert Wechsler in the first edition of The Federal Courts and the Federal System\u27 and trying to answer them with roughly the same techniques. Not surprisingly, a number of people would like to throw off the Hart and Wechsler yoke and get on with something else. But what? The restiveness that I sense among many Federal Courts teachers brings to mind two metaphors. The first is that of oedipal rebellion. Arguably, it is past time when self-respecting legal academics would have demolished conventions established by such long- dominant authority figures as Hart and Wechsler. I have my own share of oedipal urges. On the fourth floor of Harvard Law School\u27s Griswold Hall, no more than twenty-five feet from my office, hangs a larger-than-life portrait of Henry Hart. As I gaze at Professor Hart each morning, I often experience awe at his scholarly achievements, as reflected not only in the Hart and Wechsler casebook but also in the equally profound and influential materials on The Legal Process that he co-authored with Albert Sacks. But it is not always gratifying to work in the shadow of a legend. Among other things, I know that many colleagues in other fields view work in Hart\u27s shadow as dull work indeed. When I began teaching Federal Courts twelve years ago, a former teacher of mine described the field as an intellectual backwater. It was an area ripe for imaginative revision, he thought. Yet no fundamental reorientation has occurred in the interim. Why not

Constitution Day Lecture: American Constitutionalism, Almost (But Not Quite) Version 2.0

On February 7, 2012, a front-page article in The New York Times reported that the Constitution of the United States has ceased to be the leading model for constitution-writers in other countries. According to The Times, and to the law review article on which The Times based its report, the U.S. Constitution has fallen increasingly out of alignment with an evolving international consensus regarding the individual rights that a constitution ought to protect. In addition, the constitutions of other countries copy the structural provisions of the U.S. Constitution—involving federalism and the separation of powers—far less frequently than they once did. As the editors of The Times undoubtedly anticipated when they put their story on the front page, the news that other countries no longer regard the Constitution of the United States as a paradigm of excellence seems likely to provoke a shock of surprise in many American minds. Questions follow. Why have other countries ceased to treat the U.S. Constitution as a prototype? By reflecting on what others might view as deficiencies in our Constitution—most of which was written in the eighteenth century—can we achieve an enhanced understanding of the respective ways in which it may serve us well and badly in the twenty-first century? And if so, how should we go forward

Political Questions and the Ultra Vires Conundrum

This Article advances a novel theory of the political question doctrine by locating its foundations in a conundrum about ultra vires action, exemplified by the ancient question: Who will guard the guardians? The political question doctrine marks some questions as ultra vires the judicial power, or beyond the jurisdiction of courts to resolve. Correspondingly, designation of a question as political typically identifies it as lying within the jurisdiction of a nonjudicial institution to settle. Even after denominating a question as political, however, courts retain a responsibility to check actions by other institutions that overreach those institutions’ authority and thus are themselves ultra vires. The need for the judiciary to press to the outer limits of its jurisdiction to rein in ultra vires action by other institutions renders political question rulings less categorical, and also less distinct from merits decisions, than both judges and commentators have often imagined. The inescapable role of the courts in identifying ultra vires action by other branches also highlights the possibility of ultra vires action by the courts themselves. The paired risks of ultra vires action by the courts and ultra vires action by other branches if the courts could not assert jurisdiction to restrain them—both made vivid by the political question doctrine—define what this Article calls the ultra vires conundrum. The ultra vires conundrum, in turn, gives rise to what we might think of as ultimate political questions: What happens if courts err in their determination of the outer bounds of their own power? If the courts act ultra vires, do their decisions bind conscientious officials of other branches? And if not, who gets to decide when judicial action is ultra vires? Besides formulating the ultra vires conundrum and answering the questions that define its core, this Article solves a number of more traditional, interrelated puzzles about the political question doctrine that appear in a new light once the ultra vires conundrum lies exposed. It also traces previously unexplored connections between political questions and the ideal of the rule of law