Methods of interpretation

  • May 21, 2015
    Guest Post

    by Ilya Somin, Professor of Law, George Mason University School of Law; author of The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain (University of Chicago Press).

    The Obama administration’s immigration policy deferring deportation for more than four million illegal immigrants has been the focus of extensive constitutional debate since it was announced last fall. One conservative federal trial judge has ruled that the policy is unconstitutional, and another has concluded that it violates the Administrative Procedure Act, on the basis of arguments that suggest it is likely unconstitutional as well.  Despite these rulings, the Obama policy is constitutional, and appellate courts would do well to uphold it. Ironically, the case for it is particularly strong if we accept two principles that many of the policy’s conservative critics strongly support in other contexts: the unitary executive and limiting the scope of congressional power  as close as possible to its original meaning. At the same time, the Obama policy highlights the dangers posed by executive discretion in a world where there is far more federal law than any administration can effectively enforce.

    In many ways, the administration policy is simply an exercise of longstanding executive discretion in deciding when to enforce federal laws. There are more than 11 million illegal immigrants in the United States, and no administration is likely to deport more than a small fraction of them. Similarly, scholars estimate that a majority of Americans have violated federal criminal law at some point in their lives. Only a small fraction of these offenders are ever prosecuted. The executive generally has broad discretion to decide which suspected lawbreakers to go after and which ones to ignore.

    Many of  the administration’s critics claim that, by choosing not to enforce deportation against a large category of aliens, Obama is violating the Take Care Clause of the Constitution, which requires the president to “take care that the laws are faithfully executed.” But whatever else that Clause might mean, it surely does not require the president to enforce every federal law to the hilt, especially in a world where it would be literally impossible to even come close to doing so. Otherwise, virtually every president would be in constant violation of the Clause.

    Both judicial rulings against the Obama policy emphasize that it goes beyond ordinary executive discretion because it replaces “case by case” discretion with a general rule imposed by the president that categorically excludes broad categories of aliens from deportation. The categories in question cover numerous undocumented migrants who are either parents of U.S. citizens or permanent residents, or entered the U.S. as children. As Judge Arthur Schwab put it in the first ruling, the policy “provides for a systematic and rigid process by which a broad group of individuals will be treated differently from others… rather than case-by-case examination.” But the difference between case by case examination and categorical rules is one of degree rather than kind. Unless case by case discretion is completely arbitrary, it must be guided by some sort of generalizable criteria, such as the severity of the offense or the danger posed by the offender. And if such general rules can be applied by low-level law enforcement offenders handling particular cases, they can also be applied systematically by the president. After all, lower-level law enforcement officials are ultimately merely the president’s agents and subordinates.

  • April 27, 2015
    Guest Post

    by Adam Winkler, Professor of Law, UCLA School of Law. Follow Professor Winkler on Twitter @adamwinkler.

    *This post is part of ACSblog’s symposium on the consolidated marriage equality cases before the Supreme Court.

    Oral argument in the Supreme Court can be opaque, especially for those who aren’t well versed in the legal issues at stake or the precedents likely to be considered.  During oral argument, the justices aren’t interested in educating the citizenry.  They are trying to gain a better understanding of the case or subtly influencing the votes of their colleagues, so the questions and comments fly  quickly—and usually right over the heads of anyone but the experts.  Because oral argument in the same-sex marriages cases will draw an extraordinary amount of public attention, here’s a list of five things to watch for when the justices hold Court on April 28.

     

    1.    Justice Kennedy

    The first and most obvious thing to pay careful attention to is the questioning by Justice Anthony Kennedy.  With four justices who lean liberal and four who lean conservative, the Supreme Court has long been the Kennedy Court.  Because Kennedy has written all the major pro-gay rights decisions of the Supreme Court in recent years, many people assume he’ll vote in favor of marriage equality.  If I were a betting person, that’s where I’d put my money, too.  Yet it’s worth remembering that Kennedy’s opinions in those cases have always been compromises.  In Romer v. Evans, he declined to say that sexual orientation was a suspect classification.  In Lawrence v. Texas, he didn’t say gay intimacy was a fundamental right that triggered strict scrutiny.  In U.S. v. Windsor, half his opinion rested on states’ rights.  If Kennedy was serious in Windsor’s ode to the traditional autonomy of states over marriage, it could spell trouble.  That’s why it’s worth paying close attention to what Kennedy says at oral argument.  Is he skeptical of the state’s arguments?  Does he express concern about the implications of overturning the marriage bans?  Or does he emphasize the harms that come from denying LGBT couples marriage?  Kennedy, in this as in most other cases, is the vote that counts.

    2.    Baker v. Nelson

    Often lost in the current debate over marriage is that the Supreme Court has already held there is no constitutional right to same-sex marriage.  Or at least that’s one way to read Baker v. Nelson, a 1971 case that raised the issue.  The Minnesota Supreme Court upheld that state’s restriction of marriage to one man and one woman, and the case was appealed to the Supreme Court of the United States.  The justices summarily affirmed the lower court decision “for want of a substantial federal question.”  In other words, the challenge to the marriage ban didn’t even raise a colorable constitutional claim.  Will the justices treat Baker as binding precedent warranting their deference under the principle of stare decisis?  There are good reasons to believe they won’t.  The law and society has changed immensely since 1971.  Back then, laws discriminating against women didn’t even trigger any form of heightened review.  Besides, do the justices ever really treat any prior decision as binding?

  • March 23, 2015
    Guest Post

    by Suja A. Thomas, Professor of Law at the University of Illinois College of Law; author of The Other Branch: Restoring the Jury’s Role in the American Constitution (forthcoming Cambridge University Press).  This post is based on her essay, Text-Bound Originalism (and Why Originalism Does Not Strictly Govern Same Sex Marriage).

    Many assume originalism has an important place in the debate about whether states can prohibit same sex marriage.  As the argument goes, the original public meaning of the Equal Protection Clause was the protection of African-Americans, so there is no constitutional barrier to states' prohibition of same sex marriage.  In deciding that states could prohibit same sex marriage, a panel of the U.S. Court of Appeals for the Sixth Circuit recognized the relevance of this originalist interpretation of the Equal Protection Clause along with other arguments for permitting the prohibition of same sex marriage—all of which the Supreme Court will soon consider.

    But does originalism have a significant place in the interpretation of the Equal Protection Clause and thus in the same sex marriage decision?  Those advocating the use of originalism believe that originalism must strictly govern the interpretation of the Constitution.  Thus far in arguing for this originalist methodology, however, they have not acknowledged that the text of the Constitution explicitly requires the application of originalism for the interpretation of one provision in the Constitution—the Seventh Amendment.  In ignoring this textual inclusion of originalism and corresponding textual exclusion of originalism elsewhere, originalists have not shown why originalism should strictly govern other parts of the Constitution.

  • January 26, 2015
    Guest Post

    by Adam Winkler, Professor of Law at the UCLA School of Law.

    *This post is part of the ACSblog King v. Burwell symposium.

    During oral argument in the Fair Housing Act case this past week, Justice Antonin Scalia explained how another high-profile case coming later this term—King v. Burwell—ought to be decided. The King case involves the latest challenge to the Affordable Care Act. The challengers argue that the ACA does not authorize tax credits for people purchasing insurance on exchanges set up by the federal government rather than the states. They rely on a provision in the law that says such credits are available for insurance bought “through an Exchange established by the State.” Read in isolation, that provision would seem to suggest that the credits are available only on the 14 exchanges run by the states, not in the 36 states with exchanges run by the federal government.

    In the hearing in the Fair Housing Act case, however, Justice Scalia—whose vote is almost certainly necessary for the ACA challengers to win their case—elucidated why the ACA challengers should lose. The Court’s obligation in interpreting a statute, Scalia said, is to “look at the entire law,” not just “each little piece” in isolation. “We have to make sense of the law as a whole,” Scalia insisted. Whether or not something is allowed by a statute can only be determined “when all parts are read together.”

    Anyone who reads the “whole law” in the ACA case would easily conclude that credits are available on the federally run exchanges. Start with the basic objectives of the law. According to the authors of the law, “The Affordable Care Act was designed to make health-care coverage affordable for all Americans, regardless of the state they live in. Providing financial help to low- and moderate-income Americans was the measure’s key method of making insurance premiums affordable.” That basic goal would be completely undermined if federally run exchanges couldn't offer the tax credits.

  • November 14, 2014

    by Caroline Cox

    In The Washington Post, E.J. Dionne Jr. considers whether the latest Supreme Court challenge to the Affordable Care Act, King v. Burwell, will force Justice Scalia to separate from his principles.

    John Harwood of CNBC asserts that “the justices have placed themselves in a political vise grip” by accepting to hear the legal challenge to Obamacare.

    At SCOTUSblog, Abbe R. Gluck also examines King v. Burwell and argues the case “is about the proper way to engage in textual interpretation.”

    In other Supreme Court news, Dahlia Lithwick asserts in The New Republic that there is not enough diversity of experience among the Supreme Court justices.

    At Hamilton and Griffin on Rights, Janai Nelson looks at the important role of race in the Alabama redistricting cases. The ACS panel discussion of the cases from earlier this week can be found here