Interpreting Presidential Powers

Justice Holmes famously observed that [g]reat cases . . . make bad law. The problem may be especially acute in the domain of national security, where presidents frequently interpret their own powers without judicial review and where executive precedents play a large role in subsequent interpretive debates. On the one hand, some of the historical assertions of presidential authority that stretch constitutional and statutory language the furthest seem hard to condemn in light of the practical stakes. On the other hand, to credit the authority of executive precedent risks leaving the president dangerously unbound. To address the conundrum posed by executive precedent, this Article proposes a two-tiered theory for the interpretation of presidential powers. Framed as an analogy to a position in moral philosophy known as threshold deontology, two-tiered interpretive theory treats rules that restrict executive power as normally inviolable, not subject to a case-by-case balancing analysis. Analogously to threshold deontology, however, two-tiered theory also recognizes that when the costs of adherence to ordinary principles grow exorbitantly high, extraordinary interpretive principles should govern instead and should result in the upholding of broad presidential power. For reasons that the Article explains, resort to extraordinary reliance on second-tier justifications for assertions of sweeping executive authority involves a legal analogue to dirty-handed moral conduct and should be labeled accordingly. And executive precedents set in extraordinary, second-tier cases should not apply to more ordinary ones. Through its conjunction of elements, two-tiered interpretive theory furnishes analytical and rhetorical safeguards against executive overreaching, but also allows accommodations for truly extraordinary cases

Plaintiff\u27s Exhibit 0230: William Fallon Curriculum Vitae

https://engagedscholarship.csuohio.edu/plaintiff_exhibits_2000/1028/thumbnail.jp

Constitution Day Lecture: American Constitutionalism, Almost (But Not Quite) Version 2.0

On February 7, 2012, a front-page article in The New York Times reported that the Constitution of the United States has ceased to be the leading model for constitution-writers in other countries. According to The Times, and to the law review article on which The Times based its report, the U.S. Constitution has fallen increasingly out of alignment with an evolving international consensus regarding the individual rights that a constitution ought to protect. In addition, the constitutions of other countries copy the structural provisions of the U.S. Constitution—involving federalism and the separation of powers—far less frequently than they once did. As the editors of The Times undoubtedly anticipated when they put their story on the front page, the news that other countries no longer regard the Constitution of the United States as a paradigm of excellence seems likely to provoke a shock of surprise in many American minds. Questions follow. Why have other countries ceased to treat the U.S. Constitution as a prototype? By reflecting on what others might view as deficiencies in our Constitution—most of which was written in the eighteenth century—can we achieve an enhanced understanding of the respective ways in which it may serve us well and badly in the twenty-first century? And if so, how should we go forward

The Conservative Paths of the Rehnquist Court\u27s Federalism Decisions

This article broadly examines the conservative Rehnquist Court\u27s federalism doctrines and, in doing so, explores the connections between judicial conservatism and a commitment to federalism. Three conclusions emerge. First, although the Court has moved aggressively to advance federalism through well-known doctrines, it frequently proves more substantively conservative than it does pro-federalism when deference to state processes would shield liberal outcomes from federal reversal. Second, path dependence largely explains why the Court, to the puzzlement of some, has relied heavily on sovereign immunity doctrine while proceeding cautiously in limiting Congress\u27s powers under the Commerce Clause. Third, when path dependence precludes the Court from advancing its vision through constitutional holdings, the pro-federalism majority has deployed a phalanx of sub-constitutional devices to protect local governments, especially from private lawsuits seeking damages. Overall, the Court\u27s federalism revolution is distinctively a lawyers\u27 revolution, with much of the significance inhabiting the often Byzantine details

Constitution Day Lecture: American Constitutionalism, Almost (But Not Quite) Version 2.0

On February 7, 2012, a front-page article in The New York Times reported that the Constitution of the United States has ceased to be the leading model for constitution-writers in other countries. According to The Times, and to the law review article on which The Times based its report, the U.S. Constitution has fallen increasingly out of alignment with an evolving international consensus regarding the individual rights that a constitution ought to protect. In addition, the constitutions of other countries copy the structural provisions of the U.S. Constitution—involving federalism and the separation of powers—far less frequently than they once did. As the editors of The Times undoubtedly anticipated when they put their story on the front page, the news that other countries no longer regard the Constitution of the United States as a paradigm of excellence seems likely to provoke a shock of surprise in many American minds. Questions follow. Why have other countries ceased to treat the U.S. Constitution as a prototype? By reflecting on what others might view as deficiencies in our Constitution—most of which was written in the eighteenth century—can we achieve an enhanced understanding of the respective ways in which it may serve us well and badly in the twenty-first century? And if so, how should we go forward

Non–Article III Federal Tribunals: An Essay on the Relation Between Theory and Practice

Since the 1980s, the Supreme Court’s decisions involving the permissible uses of non–Article III federal tribunals have repeatedly invoked two competing theories. A “historical-exceptions” or “formalist” model would insist that only Article III judges can exercise federal adjudicative power except in three categories of cases that history marks as exceptional. A rival approach, often labeled “functionalism,” would allow further deviations from the historical norm if they are supported by sound practical justifications and do not threaten the fundamental role of the Article III judiciary within the separation of powers. This Article explores the relationship between theory and practice in explaining why neither the historical-exceptions nor the functionalist paradigm has prevailed entirely over the other despite the vastly greater appeal of the former, when viewed in the abstract, to an increasingly originalist Court

Plaintiff\u27s Exhibit 0230: William Fallon Curriculum Vitae

https://engagedscholarship.csuohio.edu/plaintiff_exhibits_2000/1028/thumbnail.jp

The Statutory Interpretation Muddle

Debates about statutory interpretation typically proceed on the assumption that statutes have linguistic meanings that we can identify in the same way that we identify the meaning of utterances in ordinary conversation. But that premise is false. We identify the meaning of conversational utterances largely based on inferences about what the speaker intended to communicate. With legislatures, as now is widely recognized, there is no unitary speaker with the sort of communicative intentions that speakers in ordinary conversation possess. One might expect this recognition to trigger abandonment of the model of conversational interpretation as a framework for interpreting statutes. Instead, interpreters invent legislative intentions—purportedly “objective” ones for textualists—or purposes. With those inventions in place, judges and theorists then carry on talking about what statutes mean, or would mean to a reasonable person, as if there were a linguistic fact of the matter even in intelligibly disputed cases. But this is a deep and systematic error. Mainstream thinking about statutory interpretation needs a major reorientation. Contrary to widespread impressions, debates about statutory interpretation are not about what statutes mean as a matter of linguistic fact, but about which grounds for the attribution of an invented meaning would best promote judicial and governmental legitimacy. Having recognized that the model of conversational interpretation cannot ground claims about statutes’ meanings in disputed cases, we also need to rethink the role of legislatures and courts in a political democracy. There are limits to what legislatures can reasonably be expected to accomplish. Courts need to play the role of helpmates to the legislature, not just faithful agents. In the interpretation of statutes, linguistic intuitions should matter, but primarily for normative reasons, involving justice and fairness in the coercive application of law, and not because they reveal the legislature’s linguistically clear dictates