Burying the constitution under A tarp

Harvard Journal of Law and Public Policy

Volumn 33, Issue 1, 2010, Pages 55-72

  Gary, Lawson ^a  

^a BOSTON UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 78049242018     PISSN: 01934872     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (100)

1. U.S. CONST, art. I, §8, cl. 7.
2. See, e.g., Letter from Thomas Jefferson to James Madison (Mar. 6, 1796), in 3 THE FOUNDERS' CONSTITUTION 28 (Philip B. Kurland & Ralph Lemer eds., 1987) (arguing that the postal road power extends only to the ability to "select from those [roads] already made, those on which there shall be a post"). The debate over the scope of the postal power extended throughout the nation's first halfcentury, with Thomas Jefferson and James Monroe, among others, arguing that Congress had no power to create new roads, and James Madison and Joseph Story, among others, taking the other side. The issue divided the Supreme Court as late as 1845. See Searight v. Stokes, 44 U.S. (3 How.) 151, 181 (1845) (Daniel, J., dissenting).
3. For a brief account of the debate, see Gary Lawson & Patricia B. Granger, The "Proper" Scope of Federal Power: A Jurisdictional Interpretation of the Sweeping Clause, 43 DUKE LJ. 267, 294-95 (1993).
4. See GARY LAWSON, FEDERAL ADMINISTRATIVE LAW 49-50 (4th ed. 2007). The Second Congress, after debate, elected to designate the routes town by town.
5. See Act of Feb. 20, 1792, §1,1 Stat. 232-33 (repealed 1794).
6. See, e.g., JAMES M. LANDIS, THE ADMINISTRATIVE PROCESS 2,10-14 (1938).
7. FRANK J. GOODNOW, SOCIAL REFORM AND THE CONSTITUTION 9-11 (1911). For additional examples of progressive awareness of constitutional problems with the formation of the modern administrative state,
8. see Ronald J. Pestritto, The Progressive Origins of the Administrative State: Wilson, Goodnow, and Landis, 24 Soc. PHIL. & POL'Y 16, 21 (2007).
9. Some are willing to supply it directly. See 1 BRUCE ACKERMAN, WE THE PEOPLE: FOUNDATIONS 34 (1991). Others do so indirectly by substituting for the Constitution precedents or practices.
10. See, e.g., David A. Strauss, Common Law Constitutional Interpretation, 63 U. CHI. L. REV. 877, 877 (1996) (arguing that interpretations of the Constitution rely not just on the founding document but also the body of laws since laid out, largely by the courts). Still others substitute abstract philosophical constructs for the Constitution.
11. See, e.g., JAMES E. FLEMING, SECURING CONSTITUTIONAL DEMOCRACY: THE CASE OF AUTONOMY 3-6 (2006) (arguing for a "constructivist" interpretative methodology that builds from the principles that best explain and justify a given set of fundamental legal materials). To be sure, if the Constitution contemplated its own replacement by such norms, these thinkers would be correct as an interpretative matter. But it does not.
12. See U.S. CONST, art. VI, cl. 2 (declaring "[t]his Constitution" to be the "the supreme Law of the Land" (emphasis added)). I happily grant that any or all of these Constitution-substitutes may well be excellent descriptions of modern practice or interesting normative political theories or both. I object to them here only as accounts of the actual Constitution's actual meaning.
13. For an account of functionalism as a rationalization for the administrative state, see Gary Lawson, Prolegomenon to Any Future Administrative Law Course: Separation of Powers and the Transcendental Deduction, 49 ST. LOUIS U. L.J. 885, 888-90 (2005).
14. Emergency Economic Stabilization Act of 2008, Pub. L. No. 110-343, 122 Stat. 3765 (2008) (to be codified in scattered sections of 12 & 26 U.S.C.).
15. Id. §101(a)(1), 122 Stat, at 3767 (to be codified at 12 US.C. §5211). Troubled assets are "(A) residential or commercial mortgages and any securities, obligations, or other instruments that are based on or related to such mortgages, that [were] originated or issued on or before March 14, 2008, the purchase of which the Secretary determines promotes financial market stability; and (B) any other financial instrument that the Secretary, after consultation with the Chairman of the Board of Governors of the Federal Reserve System, determines the purchase of which is necessary to promote financial market stability ...."
16. Id. § 3(9), 122 Stat, at 3767 (to be codified at 12 U.S.C. §5202).
17. Id. §101(c), 122 Stat, at 3768 (to be codified at 12 U.S.C. § 5211).
18. As Lancelot modestly observed, "c'est moi." To give a more precise definition: The meaning of the Constitution is the meaning that would have been attributed to it by a fully informed hypothetical observer at the time of its ratification.
19. See Gary Lawson & Guy Seidman, Originalism as a Legal Enterprise, 23 CONST. COMMENT. 47, 79 (2006). Precedent may be an important feature of the scheme of governance that has historically emerged from the constitutional order, but it is not part of or constitutive of the Constitution's meaning.
20. See Gary Lawson, Mostly Unconstitutional: The Case Against Precedent Revisited, 5 AVE MARIA L. REV. 1, 11-22 (2007). The meaning is a fact irrespective of its normative significance.
21. See Gary Lawson, On Reading Recipes ...and Constitutions, 85 GEO. L.J. 1823,1834-35 (1997).
22. U.S. CONST, art. I, §8, cl. 8.
23. U.S. CONST, art. I, §8, cl. 4.
24. U.S. CONST, art. I, §8, cl. 5.
25. U.S. CONST, art. I, §8, cl. 10.
26. U.S. CONST, art. I, §8, cl. 3.
27. U.S. CONST, art. I, §8, cl. 6.
28. U.S. CONST, art. I, §8, cl. 11.
29. U.S. CONST, art. IV, §3, cl. 2.
30. U.S. CONST, art. I, §8, cl. 18.
31. U.S. CONST, art. I, §9, cl. 7.
32. See, e.g., Sabri v. United States, 541 U.S. 600, 605 (2004).
33. U.S. CONST, art. I, §8, cl. 1.
34. This specification addressed a contentious issue in eighteenth-century theories of taxation. For a full account of the Taxing Clause, see the magisterial Jeffrey T. Renz, What Spending Clause? (or the President's Paramour): An Examination of the Views of Hamilton, Madison, and Story on Article I, Section 8, Clause 1 of the United States Constitution, 33 J. MARSHALL L. REV. 81, 96-136 (1999).
35. See Emergency Economic Stabilization Act of 2008, Pub. L. No. 110-343, § 118, 122 Stat. 3765, 3786-87 (2008) (to be codified at 12 U.S.C. §5228) (authorizing the Treasury Secretary to use 31 U.S.C. chapter 31, which provides for public debt financing).
36. I am indebted to David Engdahl for this simple but profound insight. See David E. Engdahl, The Basis of the Spending Power, 18 SEATTLE U. L. REV. 215, 222 (1995) ("[T]he spending allusion in the Taxing Clause does not even colorably reach borrowed sums.");
37. see also David E. Engdahl, The Spending Power, 44 DUKE L.J. 1, 49 (1994) ("[N]othing in the Taxing Clause even implicitly contemplates spending such funds [from sales of land or other property].").
38. Professor Engdahl has tried to locate the federal spending power in the Property Clause, which empowers Congress "to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States...." U.S. CONST, art. IV, §3, cl. 2.
39. See Engdahl, The Basis of the Spending Power, supra note 26, at 243-51. For a structural critique of this argument and a defense of the Necessary and Proper Clause as the most plausible source of federal spending power
40. see GARY LAWSON & GUY SEIDMAN, THE CONSTITUTION OF EMPIRE: TERRITORIAL EXPANSION AND AMERICAN LEGAL HISTORY 27-32 (2004).
41. I have spent much of my professional life arguing thusly. See, e.g., Gary Lawson, Discretion as Delegation: The "Proper" Understanding of the Nondelegation Doctrine, Ti GEO. WASH. L. REV. 235, 242-48 (2005) (arguing that a "necessary" implementing law must have "some obvious and precise affinity" with the implemented power);
42. id. at 249-60 (arguing that a "proper" implementing law must conform to background understandings of federalism, separation of powers, and individual rights).
43. See 6 ANNALS OF CONG. 1712-14 (1796) (statement of William Smith).
44. Id. at 1717 (statement of Nathaniel Macon).
45. Id. at 1718 (statement of Andrew Moore).
46. See id. at 1727.
47. For a longer form of the following brief argument, see Gary Lawson, Delegation and Original Meaning, 88 VA. L. REV. 327, 334 (2002) and
48. Lawson, supra note 28.
49. U.S. CONST, art. II, §1 ("The executive power shall be vested in a President").
50. See, e.g., Lawson, Delegation and Original Meaning, supra note 33, at 338-43.
51. One must say "generally" because there are specific contexts in which the executive power does include what can only be described as a lawmaking component: The President may (and, as a matter of international law, must) govern occupied territory during wartime, exercising what looks to the outside world like legislative power. See LAWSON & SEIDMAN, supra note 27, at 122-23.
52. U.S. CONST, art. I, §1 (vesting "[a]ll legislative powers herein granted" in Congress).
53. U.S. CONST, art. I, §7, els. 2-3.
54. U.S. CONST, art. I, §3, cl. 4.
55. THE FEDERALIST NO. 37, at 228 (James Madison) (Clinton Rossiter ed., 1961).
56. See Lawson, Delegation and Original Meaning, supra note 33, at 337-41.
57. Madison himself later noted the possibility and necessity of "discriminating, therefore, in theory, the several classes of power, as they may in their nature be legislative, executive, or judiciary." THE FEDERALIST NO. 48 (James Madison), supra note 40, at 308.
58. Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 43 (1825) (emphasis added).
59. For the long list of failed attempts to come up with something better than Chief Justice Marshall's formulation, see Lawson, Delegation and Original Meaning, supra note 33, at 361-77.
60. See Mistretta v. United States, 488 U.S. 361, 415-16 (1989) (Scalia, }., dissenting) (effectively declaring the nondelegation doctrine nonjusticiable).
61. See Antonin Scalia, The Rule of Law as a Law of Rules, 56 U. CHI. L. REV. 1175, 1176-77 (1989).
62. For an attempt to make this kind of argument, see Eric A. Posner & Adrian Vermeule, Interring the Nondelegation Doctrine, 69 U. CHI. L. REV. 1721, 1725-26 (2002).
63. Pub. L. No. 110-343, § 3(9), 122 Stat. 3765, 3767 (2008) (to be codified at 12 U.S.C. § 5202).
64. Id. §101(e), 122 Stat, at 3768 (to be codified at 12 U.S.C. §5211).
65. Id. §103, 122 Stat, at 3770 (to be codified at 12 U.S.C. §5213) (The nine factors to be considered are: "(1) protecting the interests of taxpayers by maximizing overall returns and minimizing the impact on the national debt; (2) providing stability and preventing disruption to financial markets in order to limit the impact on the economy and protect American jobs, savings, and retirement security; (3) the need to help families keep their homes and to stabilize communities; (4) in determining whether to engage in a direct purchase from an individual financial institution, the long-term viability of the financial institution in determining whether the purchase represents the most efficient use of funds under this Act; (5) ensuring that all financial institutions are eligible to participate in the program, without discrimination based on size, geography, form of organization, or the size, type, and number of assets eligible for purchase under this Act; (6) providing financial assistance to financial institutions, including those serving low- and moderate-income populations and other underserved communities, and that have assets less than $1,000,000,000, that were well or adequately capitalized as of June 30, 2008, and that as a result of the devaluation of the preferred governmentsponsored enterprises stock will drop one or more capital levels, in a manner sufficient to restore the financial institutions to at least an adequately capitalized level; (7) the need to ensure stability for United States public instrumentalities, such as counties and cities, that may have suffered significant increased costs or losses in the current market turmoil; (8) protecting the retirement security of Americans by purchasing troubled assets held by or on behalf of an eligible retirement plan described in clause (iii), (iv), (v), or (vi) of section 402(c)(8)(B) of the Internal Revenue Code of 1986, except that such authority shall not extend to any compensation arrangements subject to section 409A of such Code; and (9) the utility of purchasing other real estate owned and instruments backed by mortgages on multifamily properties.").
66. In an important study of the evolution of the TARP bailout, Stephen Davidoff and David Zaring argue that, although Secretary Paulson's original threepage proposal for bailout authority might have raised constitutional nondelegation concerns, those concerns are presented "less obviously by the congressional statutes that elaborated Treasury's responsibilities and that followed it." Steven M. Davidoff & David Zaring, Regulation by Deal: The Government's Response to the Financial Crisis, 61 ADMIN. L. REV. 463, 516 (2009). But the operative legal authority in the original proposal
67. , see id. at 514, was no more vague or unconstrained than was the operative legal authority in the final legislation. All that changed from Paulson's three pages to the final legislation was the addition of enough pork to win passage from reluctant House members and some oversight mechanisms that do not legally constrain the discretion of the Secretary.
68. 42 U.S.C. §7409(b)(1) (2000).
69. See Whitman v. Am. Trucking Ass'ns, 531 U.S. 457, 474 (2001).
70. See 28 U.S.C. §994(a)(1) (2000).
71. See Mistretta v. United States, 488 U.S. 361 (1989). Justice Scalia dissented because of the peculiar function of the Sentencing Commission, but with regard to whether grants of discretion to executive or judicial actors could ever be so vague as to violate the nondelegation doctrine, Justice Scalia was, if anything, more insistent than was the majority on the fruitlessness of the inquiry.
72. Id. at 415-17, 20.
73. Peter M. Shane, Legislative Delegation, the Unitary Executive, and the Legitimacy of the Administrative State, 33 HARV. J.L. &PUB. POL'Y 103,108-110 (2009).
74. 57.152 CONG. REC. S6615, 6624 (daily ed. June 28, 2006).
75. See U.S. CONST, art. II, §2, cl. 2 (requiring Presidential nomination and Senate approval);
76. United States v. Le Baron, 60 U.S. (19 How.) 73, 78 (1856) ("When a person has been nominated to an office by the President, confirmed by the Senate, and his commission has been signed by the President, and the seal of the United States affixed thereto, his appointment to that office is complete.").
77. David R. Stras & Ryan W. Scott, Are Senior Judges Unconstitutional?, 92 CORNELL L. REV. 453, 496 (2007).
78. Id.
79. I am not addressing here the very difficult question whether the President has unilateral authority to reassign duties within the executive department. The case for such a power argues that all "executive Power" is vested personally in the President by Article II, so that the President can personally assume and then delegate any executive authority located anywhere in the United States government. See Steven G. Calabresi & Saikrishna B. Prakash, The President's Power To Execute the Laws, 104 YALE L.J. 541, 593-95 (1994). The case against such a power argues that Congress, by virtue of its Necessary and Proper Clause power to create federal offices, can designate which subordinates within the executive department can permissibly exercise certain classes of executive power (though Congress cannot, under the theory of the unitary executive, forbid the President from personally exercising at least a veto power over any use of federal executive power).
80. See Geoffrey P. Miller, The Unitary Executive in a Unified Theory of Constitutional Law: The Problem of Interpretation, 15 CARDOZO L. REV. 201, 205 (1993).
81. Note that a different quorum of the Senate (not to mention a different Senate) might confirm an appointee and then participate in changing that appointee's authority after confirmation.
82. Stras & Scott, supra note 59, at 494-506.
83. Textually, they argue that only the President and Senate can appoint principal officers and only the President, the courts of law, and heads of departments can appoint inferior officers; Congress, including the House of Representatives, has no appointment power. Id. at 494-95.
84. But allowing unlimited changes in and reallocations of the authority of officers would effectively grant Congress appointment power. Id. at 495.
85. Functionally, they argue that unlimited reallocations of power can shift appointment authority from the President to Congress and undermine the accountability concerns that underlie the Appointments Clause. Id. at 495-96. I would only add that the distinction between principal and inferior officers written into the Appointments Clause makes no sense unless each appointed officer has functions defined in some fashion by his or her appointment.
86. See Weiss v. United States, 510 U.S. 163, 163-64 (1994).
87. The Court found that serving as a military judge was "germane" to serving as a military officer because "all military officers, consistent with a long tradition, play a role in the operation of the military justice system." Id. at 174-75.
88. Id. at 196 (Scalia, J., concurring in part and concurring in the judgment).
89. The consequences are obviously larger for those appointees who received or required Senate confirmation. In the case of an inferior officer appointed by the President alone, a novel expansion of duties could be accommodated simply by a new presidential appointment, which is really just paper pushing. There is always a chance, however, that someone who starts out as an inferior officer could become a principal officer through expansion of duties-as long as the definition of a principal officer relies at least in part on the scope of the officer's duties and not just on the formal chain of command.
90. As an aside, that would also mean that if Bruce Ackerman wants to rescue the New Deal as constitutional, his constitutional moment must also involve an amendment to the Appointments Clause. See ACKERMAN, supra note 6, at 119-20 (stating that President Roosevelt and the New Deal Congress let the Supreme Court Justices bring about the New Deal's constitutional legitimacy rather than codify their principles through amendments).
91. See Jim Puzzanghera & Martin Zimmerman, Bush extends aid to carmakers, L.A. TIMES, Dec. 20,2008, at Al.
92. Emergency Economic Stabilization Act of 2008, Pub. L. No. 110-343, §3(9), 122 Stat. 3765, 3766-67 (2008) (to be codified at 12 U.S.C. §5202).
93. Id. §101(a)(1), 122 Stat, at 3767 (to be codified at 12 U.S.C. §5211).
94. Id. §3(5), 122 Stat, at 3766-67 (to be codified at 12 U.S.C. §5202).
95. See, e.g., Neil King Jr. & Deborah Solomon, GM Finance Arm to Get a Fresh Bailout, WALL ST. }., May 21, 2009, at Al;
96. Martin Zimmerman, U.S. to give GMAC a $5-billion bailout, L.A. TIMES, Dec. 30, 2008, at C2.
97. Remarks on the American Auto Industry, 44 WEEKLY COMP. PRES. Doc. 1568, 1569 (Dec. 19, 2008).
98. See Gary Lawson & Guy Seidman, The Hobbesian Constitution: Governing Without Authority, 95 Nw. U. L. REV. 581, 615-16 (2001) (describing successful executive claims of emergency power to govern California without statutory authority).
99. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 585-86 (1952) (holding that lhe President could not seize domestic steel mills during wartime without statutory authorization).
100. Interestingly, for eight years many people complained about an imperial presidency, but I have not heard one peep out of anyone in the legal academy decrying this simply outlandish assertion of presidential authority. Professor Christopher Schroeder assures me that he, too, was appalled by this assertion of presidential authority and even drafted an op-ed column about it.