Ordinary powers in extraordinary times: Common sense in times of crisis

Boston University Law Review

Volumn 87, Issue 2, 2007, Pages 289-312

  Lawson, Gary ^a  

^a BOSTON UNIVERSITY   (United States)

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EID: 34548235822     PISSN: 00068047     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (135)

1. See DAVID J. SIEMERS, RATIFYING THE REPUBLIC: ANTIFEDERALISTS AND FEDERALISTS IN CONSTITUTIONAL TIME 39-40 (2002).
2. See THE FEDERALIST NO. 24, at 133-34 (Alexander Hamilton) (photo, reprint 2002) (E.H. Scott ed., 1898).
3. See Jonathan Turley, Senate Trials and Factional Disputes: Impeachment as a Madisonian Device, 49 DUKE L.J. 1, 45 & n. 184 (1999).
4. See 3 PAGE SMITH, THE SHAPING OF AMERICA: A PEOPLE'S HISTORY OF THE YOUNG REPUBLIC 503-06 (1980).
5. See generally Steven G. Calabresi & Gary Lawson, Foreword: Two Visions of the Nature of Man, 16 HARV. J.L. & PUB. POL'Y 1 (1993) (contending that Madison's writings reflected the view that man was "narrow" and "self-regarding").
6. U.S. CONST, art. I, § 8, els. 11-16 (defining Congress' power to declare war and to raise, support, and regulate the military and militia).
7. For example, the taxing power, see id. art. I, § 8, cl. 1, specifically identifies "the common Defence" as one of the permissible purposes of taxation. The power to borrow money
8. see id. art. I, § 8, cl. 2, is largely a wartime provision, though nothing in the clause limits its application to wartime.
9. Id. art. I, § 9, cl. 2.
10. Id. art. I, § 10, cl. 3.
11. Id. art. IV, § 4.
12. Id. art. I, § 8, els. 1-2.
13. See id. art. I, § 8, cl. 18. For a discussion of the Sweeping Clause as the true source of the spending power
14. see Gary Lawson, Making a Federal Case Out of It: Sabri v. United States and the Constitution of Leviathan, 2003-2004 CATO SUP. CT. REV. 119, 138.
15. U.S. CONST, art. I, § 8, cl. 11.
16. Id. art. I, § 8, els. 12-13;
17. id. art. I, § 9, cl. 7;
18. id. art. I, § 10, cl. 3. Whenever Congress must act through legislation, the President obviously plays a role - formally through the power of presentment
19. id. art. I, § 7, els. 2-3, and informally through the duty to recommend legislation
20. id. art. II, § 3. Nonetheless, purely for ease of exposition, when the Constitution vests a power specifically in Congress, I will identify Congress as the body primarily responsible for exercising that power.
21. Id. art. I, § 8, cl. 14.
22. Mart. I, § 8, cl. 11.
23. Id. art. I, § 8, cl. 16.
24. Id. art II, § 2, cl. 2;
25. id. art. I, § 10, cl. 1.
26. Id. art. II, § 1, cl. 1.
27. Id. art. II, § 2, cl. 1.
28. Id. art. III, § 1. Other clauses grant power to the Chief Justice
29. see id. art. I, § 3, cl. 6 (empowering the Chief Justice to preside at impeachment trials of the President), or authorize federal courts to receive grants of power from Congress
30. see id. art II, § 2, cl. 2 (authorizing courts of law to receive statutory power to appoint inferior federal officers), but no other clauses give power to the federal courts as an institution. For a compendium of reasons for reading the Article III Vesting Clause as the sole constitutional grant of power to the federal courts
31. see Gary Lawson & Guy Seidman, The Jeffersonian Treaty Clause, 2006 U. ILL. L. REV. 1, 22-26
32. and Steven G. Calabresi, The Vesting Clauses as Power Grants, 88 NW. U. L. REV. 1377 passim (1994).
33. U.S. CONST, art. I, § 9, cl. 2.
34. ERIC A. POSNER & ADRIAN VERMEULE, TERROR IN THE BALANCE: SECURITY, LIBERTY, AND THE COURTS (2007).
35. Id. at 12.
36. Id. at 6.
37. The label is potentially misleading unless kept in context. Posner and Vermeule define the "civil libertarian" view as holding that "courts should be willing to strike down emergency measures that threaten civil liberties to the same extent that they strike down security measures during normal times; perhaps courts should be even less deferential during emergencies, given that emergencies create new opportunities for taking advantage of the public." Id. at 5. Posner and Vermeule thus use the label "civil libertarian" to describe a particular position regarding judicial roles during emergencies, which may or may not correspond well to a "civil libertarian" position regarding desirable policies during emergencies. One can be a "civil libertarian" in a policy sense without endorsing an active judicial role in enforcing those policy preferences, just as one can favor legalization of drugs, abortion, or gay marriage without believing that courts should impose legalization if legislatures and executives fail to do so.
38. Posner and Vermeule insist that, although their argument is consequentialist and is often framed in "welfarist" lingo, there is nothing essential to their analysis about welfarism and its baggage concerning social aggregation functions. They suggest that the entire argument could be framed in other terms. See id. at 28, 41. But they embrace the idea of interpersonal comparisons
39. see id. at 28, about which I am much leerier than they.
40. See Gary Lawson, Efficiency and Individualism, 42 DUKE L.J. 53, 62 (1992).
41. See POSNER & VERMEULE, supra note 23, at 230-34.
42. See id. at 183-215.
43. Id. at 16.
44. Id. at 56.
45. U.S. CONST, art. III, § 1, cl. 1.
46. Id. art. II, § 1, cl. 1.
47. Id. art. I, § 8, cl. 18.
48. POSNER & VERMEULE, supra note 23, at 21.
49. Id. at 22.
50. I recall seeing a poster to this effect early in my law school days. It grated on me then as it does now. Of course there is a price tag on justice; every dollar spent on justice is a dollar that cannot be spent on food production, pollution control, pet grooming, Pokemon cards, or any other good that someone might value. It is possible that investments in justice may produce more wealth than investments in pet grooming, but that depends entirely on an individual's marginal rate of substitution of those two goods at any particular point in time. Very few people with a grain of common sense will always choose to spend every marginal dollar on justice.
51. See id. at 31.
52. See id. at 118-19.
53. Id. at 31 (footnote omitted).
54. Id. at 18.
55. See id. at 59-156.
56. Id. at 59.
57. It will also be true if the optimal rate of sanction is zero. But that is absurd; a law firm that is never sanctioned is surely not doing an optimal job of legally maximizing its clients' wealth. (I am grateful to my long-ago student Peter McCutchen for bringing this fact to my attention.) Similarly, given almost any understanding of the word "optimal," there is no reason to believe that the optimal rate of liberty restrictions is zero, or even that the optimal rate of abusive, unjustified liberty restrictions is zero. See id. at 56 ("Some rate of abuse is inevitable once an executive branch is created, and an increase in abuses is inevitable when executive discretion expands during emergencies, but both shifts may be worth it . . . ."). Much depends on the costs of eliminating those abuses, and that in turn depends on what other goods - including freedom from aggressive but liberty-restricting actions - might be acquired at the relevant margin.
58. See id. at 87-129.
59. Id. at 88.
60. Why Wyoming? Because on the famous "red-blue" map from the 2000 election, every single county in Wyoming was red. See USAToday.com, 2000 Vote, County by County, http://www.usatoday.com/news/politicselections/vote2004/ countymap2000.htm (last visited Apr. 1, 2007).
61. See POSNER & VERMEULE, supra note 23, at 131-56.
62. See id. at 161-81.
63. See id. at 183-215.
64. See id. at 217-48.
65. See id. at 249-72.
66. See id. at 56.
67. At the conference at which this paper was first presented, Professor Vermeule stated that he was concerned solely with the preferences of current actors and not with the original meaning of the Constitution.
68. I should be very clear that by "constitutional law," I mean "the law prescribed by the Constitution," rather than the body of practices, doctrines, and interpretations that has emerged from presidents, congresses, courts, and voters over the past two and a quarter centuries. My enterprise here is to uncover the actual meaning of the Constitution, and that enterprise requires a hypothetical reconstruction of the meaning that would have been attributed to the Constitution by a reasonable observer in 1788. See generally Gary Lawson & Guy Seidman, Originalism as a Legal Enterprise, 23 CONST. COMMENT. 47 (2006). Past actions by governmental actors, including judges, only bear on meaning to the extent that they constitute good evidence of original meaning - which is almost never.
69. See Gary Lawson, Mostly Unconstitutional: The Case Against Precedent Revisited, 5 AVE MARIA L. REV. (forthcoming 2007) (manuscript at 26, on file with author) [hereinafter Lawson, Mostly Unconstitutional].
70. James B. Thayer, The Origin and Scope of the American Doctrine of Constitutional Law, 7 HARV. L. REV. 129 (1893);
71. see also SYLVIA SNOWISS, JUDICIAL REVIEW AND THE LAW OF THE CONSTITUTION 13-44 (1990) (tracing the argument back to the Constitutional Convention).
72. Thayer, supra note 56, at 144;
73. see also SNOWISS, supra note 56, at 41 (arguing that the debates at the Constitutional Convention incorporated the eighteenth-century ideal of legislative supremacy and "reflected the understanding that judicial power over legislation was confined to the concededly unconstitutional act").
74. One could attempt to argue that the judicial role is somehow enhanced in emergencies, but there is nothing in the Constitution on which to base such a view.
75. See, e.g., Gary Lawson, Thayer Versus Marshall, 88 NW. U. L. REV. 221, 222-24 (1993);
76. Gary Lawson & Christopher D. Moore, The Executive Power of Constitutional Interpretation, 81 IOWA L. REV. 1267, 1274-79 (1996).
77. See Lawson & Moore, supra note 59, at 1275-76.
78. U.S. CONST, art. I, § 9, cl. 1 (granting states power until 1808 to import "such Persons as [they] shall think proper");
79. id. art. II, § 2, cl. 2 (granting Congress power to permit the President to appoint "such inferior Officers, as they think proper," without Senate confirmation);
80. id. art. II, § 3 (imposing a presidential duty to recommend to Congress "such Measures as he shall judge necessary and expedient");
81. id. (authorizing the President to adjourn Congress "to such Time as he shall think proper" when the House and Senate cannot agree on a time of adjournment);
82. id. art. V (granting Congress power to propose constitutional amendments "whenever two thirds of both Houses shall deem it necessary").
83. See Lawson & Moore, supra note 59, at 1276.
84. See U.S. CONST, art. II, § 1, cl. 8 (setting forth the oath to be taken by the President);
85. id. art. VI, cl. 3 (setting forth the oath to be taken by senators and representatives).
86. Cf. Frederick Schauer, Precedent, 39 STAN. L. REV. 571, 571, 576 (1987).
87. These categories are drawn from some of my prior work. See Gary Lawson, Everything I Need To Know About Presidents I Learned from Dr. Seuss, 24 HARV. J.L. & PUB. POL'Y 381, 384-86 (2001) [hereinafter Lawson, Everything I Need To Know];
88. Lawson, Mostly Unconstitutional, supra note 55 (manuscript at 10-13);
89. Lawson & Moore, supra note 59, at 1278-79.
90. See U.S. CONST, amend. V (prohibiting double jeopardy);
91. id. amend. VII (limiting federal court review of civil jury verdicts).
92. There is a limited case, based on the distinctive presidential oath prescribed by the Constitution, for economic deference by presidents to trusted staffers in some circumstances. See Lawson, Everything I Need To Know, supra note 65, at 388.
93. See POSNER & VERMEULE, supra note 23, at 16-17, 121. I use these particular formulations as examples because they will be familiar to readers, not because Posner and Vermeule use them or because they have the remotest grounding in the actual Constitution.
94. Id.
95. Deferential judicial review means that a wider range of governmental decisions will pass muster, but it does not necessarily mean that courts will affirm government decisions more often during emergencies than during normal times. Affirmance rates depend not only on the effective standard for judicial review, but also on the selection of cases for litigation and on the legislative and executive responses to enhanced deference. For instance, if the executive is emboldened by the expectation of deferential judicial review and overreaches, reversal rates may actually rise, even if the effective scope of deference - that is, the range of circumstances that will result in affirmance of government action - has increased. I am grateful to David Walker for emphasizing this point.
96. U.S. CONST, amend. IV.
97. Id. art. II, § 1, cl. 5.
98. This is the case despite the best efforts of very able scholars to argue otherwise. See, e.g., Anthony D'Amato, Aspects of Deconstruction: The "Easy Case" of the Under-Aged President, 84 NW. U. L. REV. 250, 253-55 (1989) (suggesting that an attempt to challenge the election of an "unconstitutional" President could possibly be defeated by the application of various justiciability doctrines or, alternatively, by an argument that the age qualifications were superseded by the constitutional amendments which prohibit age discrimination). There may be questions about the content of the rule (must the age limit be reached at the time of election or at the time of swearing in?), but it is a rule ("thirty five Years") rather than a standard (such as "adequate level of maturity").
99. U.S. CONST, art. II, § 1, cl. 1.
100. Id.
101. Of course, this raises additional questions, which I have already tabled, about the extent of that package.
102. Id. art. I, § 8, cl. 18 (granting Congress power "[t]o make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof). Today, this clause is generally called the Necessary and Proper Clause, but the founding generation almost uniformly called it the Sweeping Clause.
103. See Gary Lawson & Patricia B. Granger, The "Proper" Scope of Federal Power: A Jurisdictional Interpretation of the Sweeping Clause, 43 DUKE L.J. 267,270 & n. 10 (1993).
104. For accounts of this debate (which reach different conclusions about its implications for presidential power), see Curtis A. Bradley & Martin S. Flaherty, Executive Power Essentialism and Foreign Affairs, 102 MICH. L. REV. 545, 679-86 (2004)
105. and John Yoo, Politics as Law?: The Anti-Ballistic Missile Treaty, the Separation of Powers, and Treaty Interpretation, 89 CAL. L. REV. 851, 899-901 (2001) (book review).
106. See Calabresi, supra note 21, at 1405;
107. Steven G. Calabresi & Saikrishna B. Prakash, The President's Power To Execute the Laws, 104 YALE L.J. 541, 570-81 (1994);
108. Steven G. Calabresi & Kevin H. Rhodes, The Structural Constitution: Unitary Executive, Plural Judiciary, 105 HARV. L. REV. 1153, 1194-1208 (1992).
109. Lawson & Seidman, supra note 21, at 22-40.
110. Just two of the leading articles that oppose reading the Article II Vesting Clause as a grant of power total 263 Law Review pages. See Bradley & Flaherty, supra note 78 (144 pages);
111. Lawrence Lessig & Cass R. Sunstein, The President and the Administration, 94 COLUM. L. REV. 1 (1994) (119 pages plus an Appendix).
112. U.S. CONST, art. II, § 2, cl. 1.
113. Id. art. II, § 2, cl. 2.
114. Id. art IV, § 3, cl. 2. For a detailed discussion of the power to govern territory
115. see generally GARY LAWSON & GUY SEIDMAN, THE CONSTITUTION OF EMPIRE 121-201 (2004).
116. For more discussion of the principle of reasonableness, see LAWSON & SEIDMAN, supra note 84, at 52-56.
117. See Rooke's Case, 5 Co. Rep. 99b, 100a, 77 Eng. Rep. 209, 210 (CP. 1598).
118. See Leader v. Moxon, 2 Black. W. 924, 925-26, 96 Eng. Rep. 546, 546-47 (C.P. 1773).
119. Id.
120. Letter from James Madison to Spencer Roane (Sept. 2, 1819), in 8 THE WRITINGS OF JAMES MADISON 447, 448 (Gaillard Hunt ed., 1908).
121. U.S. CONST, art. I, § 8, cl. 18.
122. Lawson & Granger, supra note 77, at 324.
123. Gary Lawson, Discretion as Delegation: The "Proper" Understanding of the Nondelegation Doctrine, 73 GEO. WASH. L. REV. 235, 256-61 (2005).
124. See id. at 258-59.
125. Actually, they bear extended discussion rather than brief mention, but they are only getting brief mention here.
126. U.S. Const, art. I, § 8, cl. 18.
127. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 582-89 (1952).
128. But see Wickard v. Filburn, 317 U.S. 111, 118-29 (1942).
129. An assumption which is somewhat dubious - a drop in the stock market does not rise to the level of war.
130. I am grateful to Adeno Addis for highlighting this important point.
131. Cf. John C. Yoo, The Continuation of Politics by Other Means: The Original Understanding of War Powers, 84 CAL. L. REV. 167, 295 (1996) ("[T]he Declare War Clause does not add to Congress' store of war powers at the expense of the President. Rather, the Clause gives Congress a judicial role in declaring that a state of war exists between the United States and another nation . . . .").
132. In the rare cases where the government decision is obviously bad, even a strong rule of deference would permit judicial intervention. The point is not that courts have no jurisdiction to entertain claims of governmental overreaching during times of crisis, but only that they ought to tread very, very carefully.
133. See Lawson & Moore, supra note 59, at 1272-73.
134. Id. at 1273.
135. See POSNER & VERMEULE, supra note 23, at 3 ("When national emergencies strike, the executive acts, Congress acquiesces, and courts defer. When emergencies decay, judges become bolder, and soul searching begins.").