Posts Tagged ‘Rosenkranz’

Over at The  Volokh Conspiracy, Nick Rosenkranz has a post titled “James Madison Anticipates the Possibility of Government Shutdown–and Predicts that the House of Representatives Can and Should Prevail.” The post consists of an extended quotation from Federalist No. 58 that Rosenkranz interprets as predicting that the House of Representatives “can and should prevail” in a battle of wills over their exercise of the power of the purse.

Rosenkranz’s post brings to mind an early episode in our nation’s history in which the House sought to use its appropriations authority to block “the law of the land” from taking effect: the fight over appropriations to implement the vastly unpopular Jay Treaty. The short of it is that Madison, in the House, lost. But the short version leaves much out (and the circumstances of that showdown are different from present circumstances in some obvious ways, of course). For some primary sources on the debate over the Jay Treaty, see the relevant portion of the collection edited by Lance Banning, available at The Online Library of Liberty: Liberty and Order the First American Party Struggle.

Of potential interest to students of federal judicial power, in The Supreme Court in the Early Republic, William Casto describes a nine-page opinion letter about the legal issues raised by the House’s opposition that was authored by Chief Justice Oliver Ellsworth as a type of advisory opinion:

Almost as soon as Ellsworth took his oath as Chief Justice, he–like Chief Justices Jay and Rutledge before him–became entangled in a political facet of Jay’s treaty. The Senate had consented to the Treaty, but it could not be implemented without an appropriate of funds, and this technicality gave its opponents one last chance to defeat it. The Republican leaders in the House maintained that they had the right to judge the wisdom of the Treaty and to refuse to appropriate the necessary funds if they deemed it unacceptable. To assist the House in its consideration, Congressman Edward Livingston of New York called for the President to provide copies of all papers relevant to the Treaty’s negotiation.

Five days after Ellsworth became Chief Justice, he wrote an extensive advisory opinion on these developments. Although the opinion is in the form of a nine-page letter to Senator Jonathan Trumbull of Connecticut, it wound up in George Washington’s files docketed under the subject “treaty making power.” Whether Ellsworth wrote the letter in response to an indirect request from the President is not known, but the Chief Justice clearly intended his letter to be a formal legal opinion. His basic analysis was that, under the Constitution, the treaty-making power is vested solely in the President and the Senate. Once a treaty was approved by the Senate and ratified by the President, it became a “law of the land” binding upon the House. The fact that the Treaty coincidentally required an appropriation to carry it into effect was “an accidental circumstance [that did] not give the house any more right to examine the expediency of the Treaty, or control its operation, than they would have without this circumstance.” The House was therefore bound to appropriate the funds “as it is to appropriate for the President’s salary, or that of the Judges.” The President subsequently refused to provide the requested papers, and the Federalists in Congress mustered barely enough votes to appropriate the funds necessary to implement the Treaty.

[Casto at 97-98]

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A federalism-focused anti-DOMA brief has now been the subject of a flurry of posts on Volokh Conspiracy and NRO’s Bench Memos. (Jonathan Adler’s recent post includes direct links to the posts.) These posts line up Jonathan Adler, Randy Barnett, Dale Carpenter, and Ernie Young against Nick Rosenkranz and Ed Whelan.

In my view, Rosenkranz and Whelan have the better of the exchange. But there is still an important element missing from the discussion, for both sides of this debate assume that the Supreme Court should inquire whether Congress had power to pass the law containing DOMA § 3’s definitions. That’s the wrong question. The Court in Windsor has no good reason to consider the constitutionality of DOMA’s definitions except insofar as that definition is plugged into the estate tax. And when the Court considers the constitutionality of DOMA’s definitions of “marriage” and “spouse” in connection with the estate tax, the “necessary and proper” analysis has a straightforward answer.

DOMA § 3 has the kind of legal effect that the federal courts have business dealing with in Windsor only by virtue of that provision’s application in conjunction with the estate tax. By its terms, DOMA § 3 is nothing more than a directive about how to determine “the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States.” The “Act of Congress” in this case is codified at 26 U.S.C. 2056, a spousal exemption from the federal estate tax. Ms. Windsor would have avoided paying a significant amount of money in estate taxes if she had qualified under federal law as Ms. Spyer’s “spouse.” Because Ms. Windsor did not qualify as a “spouse” for purposes of the federal estate tax, she had to pay.

Ms. Windsor’s challenge to the limited reach of the estate tax’s spousal exemption takes the form of a refund action. The “judicial review” question is whether a court may give legal effect to DOMA’s definitions in the course of deciding this refund action.

The federalism-based anti-DOMA brief answers this question “no” on the grounds that a court may not give legal effect to DOMA’s definitions in any case–the provision as a whole (DOMA § 3, but not all of DOMA) exceeds Congress’s powers. The federalism-based anti-DOMA brief attacks DOMA’s definitions on their own and in conjunction with every other provision of federal law in which DOMA’s definitions of “marriage” and of “spouse” might apply. But the brief does not attack DOMA’s definitions insofar as they are plugged into the estate tax exemption at issue in the case.

The brief argues that “[a] federal definition of marriage that indiscriminately applies to more than 1100 federal statutes and programs can be ‘plainly adapted’ to none of them.” But that is not right. DOMA’s round peg fits into all the round holes, and there are many of them in federal law.

If the spousal exemption in the estate tax is a round hole, such that DOMA’s definitions are “plainly adapted” to it, that is the end of the no-power argument for this case. Congress has power to tax and concomitant power to define the scope of the federal estate tax in a way that declines to exempt Ms. Windsor and others similarly situated.

To escape this move, the anti-DOMA federalism briefers might try to argue that the court should entertain a kind of overbreadth challenge to DOMA: Even though DOMA’s definitions are plainly adapted to the estate tax, the definitional provision is invalid in its entirety because it is not plainly adapted to some other areas of federal law (like, for example, bribery rules). This argument would probably fail on its own terms, as DOMA’s definitional provisions have a plainly legitimate sweep. But the more fundamental problem is to explain why this form of challenge should be entertained at all.

My analysis is closest to the portion of Whelan’s in which he writes that “section 3 of DOMA is merely definitional and … section 3 plugs into other congressional enactments. If those other enactments are within Congress’s power, then it is plainly within Congress’s power to define the terms it uses in those enactments.” And it is similar to Rosenkranz’s, which describes DOMA § 3 as a “cut-and-paste function”:

DOMA Sec 3, like all definitional provisions, is essentially a cut-and-paste function. Where you see X, you should read Y. Obviously Congress could simply have erased X throughout the US Code and replaced it with Y. Likewise, presumably, Congress could have added an “X shall mean Y” definitional section at the end of every single statute. And so, I can’t see any objection to a global definition at the beginning of the U.S. Code.

But one objection raised by the anti-DOMA federalism brief is to the use of a “global definition.” Because it is global, the argument goes, it is not “plainly adapted” to any particular exercise of an enumerated power. My analysis provides a response to this form-based objection.

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Eugene Volokh reports that Georgetown Law’s Nicholas Rosenkranz will be guest-blogging on the Volokh Conspiracy about The Subjects of the Constitution and The Objects of the Constitution, two articles by Rosenkranz that appear in the Stanford Law Review.

I admire the ambition of these articles, which are more ambitious than anything I’ve attempted to date. But I have some pretty fundamental disagreements with their substance. While I’ve been meaning to think through some of these disagreements in a careful scholarly analysis, I have not had a chance to turn to that yet. Accordingly, I look forward to Rosenkranz’s posts. Perhaps the posts will dispel some of my concerns. If not, I suspect they will help me to understand our differences better. 

The constitutional challenges to the individual mandate in the Affordable Care Act seem as good a place as any to figure out how a theory of judicial review cashes out. One question that I will have in mind as I read the posts and comments will be this: What does Rosenkranz’s theory of judicial review say about the who, what, and when of challenging the individual mandate in federal court? 

This admittedly compound question has three parts that focus on three different aspects of judicial review: “Who” relates to standing; “what” relates to substance; and “when” relates to timing. 

An aggressive reading of Rosenkranz’s articles indicates that the best combined answer is: (1) anyone subject to any aspect of the Affordable Care Act; (2) can challenge the individual mandate; (3) immediately upon enactment of the Affordable Care Act into law.

If this combination of answers is right under Rosenkranz’s theory, then Rosenkranz’s theory must be wrong. Or so I believe at present. 

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