FedSoc Online Debate- The Pay Czar & Appointment Clause with Profs. McConnell and Flaherty

I have blogged a bit about the President’s Czars and the appointments clause. Recently Professor McConnell posted a great WSJ Op-Ed on this point.

The Federalist Society is hosting an ongoing online debate between McConnell and Professor Flaherty.

Here are the opening salvos.

McConnell thrusts:

There is no doubt that Mr. Feinberg is an “officer” of the United States. The Supreme Court has defined this term (Buckley v. Valeo, 1976) as “any appointee exercising significant authority pursuant to the laws of the United States.” Mr. Feinberg signed last week’s orders setting pay levels for executives at Bank of America, AIG, Chrysler Financial, Citigroup, GMAC, General Motors and Chrysler. They have the force of law and are surely an exercise of “significant authority” pursuant to an Act of Congress. He is not a mere “employee,” acting at the direction of a superior. That means his office is subject to the requirements of the Appointments Clause.

While somewhat more disputable, Mr. Feinberg’s is probably an “inferior” officer, defined as one subject to supervision and removal by a member of the cabinet. Although he has substantial discretion and independence, Mr. Feinberg reports to the secretary of the Treasury, who can fire him any time for any reason. This means that Congress could, if it wished, vest the appointment of the pay czar in the secretary, without any need for Senate confirmation.

Flaherty parries:

Unless one is a Wall Street solipsist, the power to reduce executive compensation does not place Feinberg on par with Hillary Clinton or above Kenneth Starr. It follows that Congress should have had a role in determining the appointment process, either by vesting the power in the Secretary of the Treasury, the President alone, or even a court, such as the D.C. Circuit.

One point, however, calls for clarification. Judge McConnell at first says that “Congress may, if it wished, vest the appointment of the pay czar in the secretary [as Head of a Department], without any need for Senate confirmation.” So far so good. Yet he adds that, in lieu of Congressional action, he could only delegate the Pay Czar power to someone who is subject to Senate confirmation. On one hand, why could he sub-delegate at all? On the other, why not sub-delegate to someone subject to appointment in one of the three ways that the lower track of the Appointments Clause calls for?

 

Egquist, Olech, and the Class of One. New Article on Erosion of Equal Protection

My article forthcoming in the Loyola Law Review, titled Equal Protection from Eminent Domain. Protecting the Home of Olech’s Class of One heavily relies on the Olech and Engquist line of cases, so this recent article by Professor Shanske posted to SSRN is of some interest (H/T Legal Theory Blog).

Engquist and the Erosion of the Equal Protection Clause: An Attempt to Stop the Creep of Irrational Dicta:

This article is about the erosion of the protections offered by the Equal Protection Clause resulting from the Supreme Court’s decision in Engquist v. Oregon Department of Agriculture, 128. S. Ct. 2146 (2008). Lower courts, purportedly following Engquist, have limited the reach of the Equal Protection Clause in several dozen cases in the last year. Until Engquist, it was uncontroversial that any person alleging irrational treatment by a government official could at least challenge the government official to give a reason that would satisfy rational basis review. Since the Supreme Court decided Engquist, lower courts have leapt to find that government officials cannot be found liable under the Equal Protection Clause for any action considered “discretionary.” It would be problematic if this striking curtailment of individual rights was actually required by the Supreme Court’s decision in Engquist, but the Court held no such thing, though the Court offered some expansive dicta that could be so interpreted. This article aims to counter the creep of these dicta among the lower courts and explains in particular why these dicta are not consistent with constitutional values.

I discuss this dicta at length in my article, so I will be sure to incorporate this article prior to publication. For my thoughts on dicta, see here: Much Ado About Dictum; or, How to Evade Precedent Without Really Trying: The Distinction between Holding and Dictum (one of these days I’ll get that article ready for publication).

Original Crimes: What were Federal Crimes in 1789, and Reply to Professor Kerr

I blogged a bit yesterday about what exactly was considered a federal crime in 1789 (see here and here). I argued that beyond certain crimes according to enumerated powers (securities, currency, etc), there could not be any general federal crimes.

I was pleased to see one of my favorite bloggers, and all-around nice guy, Orin Kerr, visited my comment thread.  Orin wrote:

The first set of federal crimes (that I know of) that Congress passed was 1 Stat. 112, enacted April 30, 1790. You should read Chief Justice Marshall’s opinion United States v. Wiltberger (1820) for an example of one of these laws: http://supreme.justia.com/us/18/76/case.html I don’t think it occurred to anyone at the time that such laws exceeded Congress’s commerce clause power.

Corey Carpenter, a contributor to Josh Blogs, replied:

I did a quick reading of the link you posted, and it seems that the 1 Stat. 112 particularly concerns crimes committed in places where only the federal government has jurisdiction, i.e. the high seas and federal land as opposed to a general policing power (and treason)

I just skimmed through Wiltberger, and it deals with manslaughter on the high seas, a federal offense.

All of the provisions of 1 Stat. 112 (see Library of Congress, and enter page 112) deal with matters clearly in the province of the federal government, and not traditional common law crimes.

The Federalism blog describes the crimes as such:

Sections 1 & 2 punish treason against the United States.  Id. at 112.  Sections 3 & 7 do not punish the state crimes of murder or manslauther.  Rather, it only criminalizes murders committed in “any place *** under the sole and exclusive jurisdiction of the United States, “  id. at 113, and Section 5 punishes the theft from the federal government the body of an executed criminal.  Id.  Section 6 imposes an affirmative duty on a witness to certain listed crimes against the United States to relay his knowledge to the police.  Id.  Section 7 covers arson, but again, only against a building “under the sole and exclusive jurisdiction of the United States.”  Id.  Section 9-13 define and punish crimes on the high seas and rivers. Id. at 114-115.  Section 14 criminalizes counterfeiting.  Id. at 115.  Section 15 punishes acts affecting an official paper of a federal court.  Id. at 115-116.  Sections 16 & 17 punish theft-related acts occurring on any place under the “sole and exclusive jurisdiction of the United States.”  Id. at 116. Sections 18-20 cover perjury committed in federal court.  Id. at 116-117.  Section 21 covers bribes against federal officials.  Id. at 117.  Section 22 criminalizes resisting arrest, where a federal official is the arresting officer.  Id.  Finally, Section 28 punishes violence against persons under the protection of the United States. Id. at 118.

So perhaps I should refine my initial inquiry. When did the Federal Government began criminalizing matters that were historically left to state prosecutions, namely the common law crimes, that had nothing to do with federal jurisdiction or federal property? And if this change predated the New Deal and the transformation of the commerce clause, on what enumerated power did the federal Government base this authority?

Perhaps Professor Kerr will open a thread at Volokh? Or maybe I’ll just buy him a beer.

Now Google Can Read Your Lips, Automatic Captions to YouTube Videos

From AP (H/T Gizmodo):

Google Inc. said Thursday it is introducing automatic, machine-generated captions for videos on its YouTube site. The new service, being launched this week, is intended to make online videos accessible to the deaf and hearing-impaired.

So Google is tapping into the speech-recognition technology that it uses for its Google Voice call management service to make captions an automatic feature on YouTube.

In the meantime, Google is adding a new “auto-timing” feature to its existing manual captioning service to make it easier to use. Video creators will now simply have to create a text file with all the words spoken in a video and Google’s speech recognition technology will take it from there — matching the text to the words as they are spoken. Google hopes this will encourage more users to add captions to their videos.

So now Google knows what you read, knows what you write, and now knows the content of videos. By translating audio to text, Google, presumably can now index the transcript of a video.  Omniveillance is looming on the horizon.

But if there were no federal crimes, why would we need the 4th, 5th, and 6th amendments?

I previously blogged about what would be a federal crime in 1787. I conclude that for the most part, there could not be any.

Corey C, a bright eyed, blue haired 1L at George Mason law, posed a fantastic question.

If there were no federal crimes, why would the Constitution have needed the 4th, 5th, and 6th criminal procedure amendments?

If the only crimes were state crimes, and there were no federal crimes, how would the federal government have been bound by these amendments?

Corey suggests that this perhaps counsels in favor of incorporation. Perhaps, Barron v. Baltimore was wrong?

Just some more food for thought, but it gets my originalist juices flowing.

What was a federal crime in 1787? I agree with Brutus. There weren’t any.

I am helping Judge Gibson prepare the syllabus for the Federal Court Practice class at the Penn State Dickinson School of Law this Spring. For the first class, the students will be reading Article III (as all law students should).

Re-reading Article III reminded me of a question I asked my Federal Courts professors, to which I did not receive a satisfactory answer: What was a crime under the authority of the Federal Government in 1787?

Article III, Section 2 Provides:

The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the state where the said crimes shall have been committed; but when not committed within any state, the trial shall be at such place or places as the Congress may by law have directed.

But what were these crimes? The Federal Government has no general police power.

Brutus XIV (28 February 1788) notes:

“There is no criminal matter, to which the judicial power of the United States will extend; but such as are included under some one of the cases specified in this section.”

I tend to agree with Brutus’s reading.

Reading the original text of the Constitution, the only federal crimes that jump to mind are counterfeiting currency and securities, and perhaps treason. But what else?

Today, most federal crimes are based in the Commerce Clause. But how were federal crimes defined before the New Deal Revolution? This may be fodder for a future law review article.

For those curious, in addition to Article III, tentatively, the students may also studying Brutus XI-XII, XIV-XV and The Federalist 78, 79, 80, 81, 82, 83, followed by Marbury v. Madison.

Freakanomics: “Just Compensation” Can Lead to More Government Takings. Huh?

Ian Ayres writes at the Freakanomics Blog:

What really interests me about Bankman’s idea is that requiring the government to pay for its takings might lead to more takings. This is very different from the way we usually think about the impact of compensation:

“A central idea behind the Constitution’s Takings Clause is to reduce government’s inclination to take too much. A government that is forced to compensate for the exercise of its eminent domain power is less likely to engage in value-reducing land grabs.”

But requiring compensation might increase the willingness of government to take. As Barry and I wrote:

“The big hope is to end the stranglehold that anti-IRS forces have on compliance efforts. . . . Absent compensation, Congress has vetoed efficient audit programs–setting the audit rates far below their optimal level. Here’s a rare case where forcing the government to pay for something is likely to increase its demand.”

The government, in deciding whether to take, is in some ways on both sides of the market, acting as both a buyer and a seller. The normal intuition that the just compensation requirement will dampen government’s demand to take conceives of the government as a buyer. But in a representative government, the amount of takings will be partly determined by the willingness of representatives to sell at a particular price. When the selling price is zero — as with current tax audits, government as representatives of sellers may choose to sell very little. (This possibility was to my knowledge first seen in Bruce A. Ackerman’s classic Private Property and the Constitution.)

Having just finished reading Super Freakanomics, I take all conclusions from freakanomics with a grain of salt.  If the Constitution did not provide for just compensation for takings, would bureaucrats be less willing to take? I don’t know. For many takings for economic development, the actual just compensation price is trivial compared to the expected benefits the future owner will bring. From that perspective, I’m not sure how much legislators would really even care about the compensation amount. But curious.

Barnett v. Kerr on McDonald v. Chicago. A fun little tussle is brewing on Volokh today.

A fun little tussle is brewing on Volokh today.

Professor Kerr made his predictions for McDonald (my thoughts here), Professor Bernstein made his predictions (my thought here), and now Professor Barnett has opined.

A few choice nuggets from Professor Barnett regarding Professor Kerr’s posts:

“How sad it is that one can implicitly criticize a brief to the Supreme Court of the United States for relying on the text of the Constitution. Although Alan Gura’s brief does stress both original public meaning and original intent, under the relevant precedent Orin thinks the Court will or should (?) follow, the alternative is not that the Privileges or Immunities has a modern meaning but has no meaning whatsoever! “

“Faced with this background and the actual question presented, I wonder how would Orin have briefed the case. Would he have offered any of the analysis in his post? Would he have told the Court just to ignore the Privileges or Immunities Clause? Or might he not have assumed as an experienced litigator that the Justices could write a Due Process Clause “incorporation” opinion in their sleep–heck, their clerks could write that opinion in their sleep–and then devoted the bulk of his brief to describing the meaning of the Privileges or Immunities Clause in context? “

“The sort of “legal realist” analysis offered by Orin in his post would simply be of no assistance to the Court in reaching its decision. Nor would it help much in oral argument. But who knows? As a mere prediction, it could turn out right, in which case Orin can say he told us so.”

I am expecting Professor Kerr to reply shortly, but Barnett I think has the better argument. As Barnett points out, 4 Justices had to request that the Privileges or Immunities reference should exist in the Question Presented. On Kerr’s breakdown, only one Justice seems interested. This just doesn’t jive.

With the Supreme Court, always expect the unexpected.

Update: Orin replied to Randy,  kind of:

I had a feeling my post predicting the votes on the Privileges and Immunity argument in McDonald v. City of Chicago might draw a disapproving response from Randy, and I see it did. Based on past experience, I gather Randy’s questions directed to me are rhetorical questions designed to defend Randy’s view of the Constitution, not ones asking for my response. But I did want to open a comment thread on the issue in case our commenters wanted to weigh in.

He posted an open thread, which should yield some interesting debate.

(Oh, and I should be clear that I think McDonald will win on the Due Process argument, perhaps by 7 or 8 votes; I just don’t think more than one Justice is on board for the P or I stuff, especially given that it’s not necessary to even reach the issue to decide this case.)

Update 2: Barnett just replied:

I predict that, every time I or another VC blogger posts with closed comments on a subject that Orin finds interesting, he will post something short with open comments soon thereafter. We will see how this prediction holds in the future.

McDonald and Overruling Slaughter-House. A Response to Professor Kerr

At Volokh, Orin Kerr gazes into his crystal ball to predict how the Supreme Court will respond to Gura’s arguments regarding the Second Amendment and the Privileges or Immunities Clause.

In summary, he predicts:

• Thomas will vote in favor of P/I in light of his vote in Saenz
• Scalia will not vote for P/I; Scalia thinks that Substantive Due Process is wrong, but will not overrule it becuase of the reliance interest built up over the years
• Roberts and Alito, though Originalists, are not revolutionaries willing to give the judiciary the new power to “strike down legislation because it is inconsistent with’natural rights,’ including ‘the right to obtain happiness and safety,’ with some of those natural rights undefinable “in their entire extent and precise nature.”
• Kennedy is not an originalist, and will incorporate through Due Process.
• Stevens, Ginsburg, Breyer, and Sotomayor will view Gura breif as attempt to rehabilitate Lochner, and won’t buy it.

In an article I co-authored with Ilya Shapiro fortchoming in the Georgetown Journal of Law & Public Policy, titled Opening Pandora’s Box? Privileges or Immunities, The Constitution in 2020, and Properly Incorporating the Second Amendment we deal with a lot of these points, so I will try to summarize the argument here (we will be posting a PDF of the article later this week).

First, I think Orin presents a binary choice; incorporate through Due Process OR incorporate through privileges or immunities.  The question presented asked about both routes of incorporation. Neither path is by necessity mutually exclusive. As Gura’s brief makes clear, the Court could incorporate through the Due Process Clause, and alternatively recognize that the right to keep and bear arms is also among the Privileges or Immunities of Citizenship.  The Court need not displace 100 years of substantive due process jurisprudence with this single case. And from a practical perspective, basically the entire Bill of Rights has been incorporated. So, unless some people start clamoring about states quartering troops in theirs homes, this would be a one time deal. Such a holding would do little to upset the apple cart, or as we put it, open Pandora’s Box.

Second, I think Orin over-simplifies Scalia’s views on originalism and stare decisis. Our article shows that Scalia, while on the Supreme Court, has never voted in favor of a substantive due process incorporation. The last such case was in 1982. Can Scalia really cite the doctrine that he excoriated in Lawrence, Casey, and elsewhere based solely on reliance interests?  It is no secret Scalia likes guns, and he wants to incorporate the 2nd Amendment. But he does not want to enlarge substantive due process. Is he stuck between a rock and a substantively hard place? The Privileges or Immunities Clause provides an alternative method for Scalia. He could write a classic originalist opinion tracing the right to bear arms during Reconstruction, and find that it applies to the State.

Third, the Court does not need to rehabilitate Lochner (another shameless plug for David Bernstein’s forthcoming book). In fact, the Court can take a narrow view of Privileges or Immunities solely as an incorporative methodology, and leave to a later day the protection of substantive rights.  But this possibility raises another issue. While Orin is quite right to say the liberal Justices would be afraid to bring back Lochner, in a different case, the Justices may see the Privileges or Immunities Clause as a means to constitutionalize certain positive rights (welfare, education, health care, etc.). There is a growing body of literature, springing from the Constitution in 2020 project, that aims to use P/I as a means to elevate positive social rights to constitutional rights.

So, while Justice Breyer may not be willing to recognize the right to keep and bear arms as a Privilege or Immunity, the Court in a few years, with a much different composition, may be willing to recognize a constitutional right to health care, for example. While these types of arguments failed under due process and equal protection, privileges or immunities jurisprudence will be written on a clean slate.

For these reasons, and others mentioned in our article, we ask the Court not to punt on P/I for future generations, but rather to assert an originalist jurisprudence; namely, adopt the Washington v. Glucksberg test. By looking at only those rights deeply rooted in our nation’s history, the Court can find the right to keep and bear arms is such a right, and thus incorporate it to the state.

NRA Brief in Support of Petitioners in McDonald v. Chicago- Incorporate through Privileges or Immunities, Re-Evaluate Slaughterhouse

The NRA, authored by Stephen Halbrook, posted its Brief in Support of Petitioners in McDonald v. Chicago. Some of my initial thoughts

The NRA seeks incorporation under the Privileges or Immunities as an alternate ground: If the Court does not decide this case in favor of Petitioners on selective incorporation grounds, then the Court should find that the right to keep and bear arms is one of the privileges and immunities of national citizenship protected by the Fourteenth Amendment. See U.S. Const., amend. XIV (“No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States”).

However, they do not want to reconsider the entire Privileges or Immunities Clause jurisprudence:

Respondents in Support of Petitioners do not believe it is necessary to revisit the entire analytical framework the Court has developed for the Privileges and Immunities Clause, under which that Clause protects only rights connected to national citizenship, in order to recognize that the right to keep and bear arms is protected.

But, in the alternative, the NRA seeks for the Court to reconsider Slaughter-House.

For the reasons given at greater length in the brief of Petitioners, it is time for this Court to depart from the The Slaughter-House Cases and recognize the incorporation of the Bill of Rights, or at a Fourteenth Amendment’s Privileges and Immunities Clause. Even if this Court finds it unnecessary to hold that the entire Bill of Rights is so incorporated, it would be faithful to the original understanding to hold that the Second Amendment is incorporated.

Because the NRA is a Party in Support of Petitioners, they file earlier than the 11/23 deadline for amici (H/T Ilya Shapiro for the deadline clear up).