Day: February 26, 2017

Donald Trump’s “Sole Organ”

Before he joined the Supreme Court, Rep. John Marshall of Virginia referred to the President as the “the sole organ of the nation in its external relations.” Nearly 130 years later, the Supreme Court adopted this conception of the Chief Executive in United States v. Curtiss-Wright, who serves as the “the sole organ of the federal government in the field of international relations.” While this notion has historically been applied to the realm of foreign affairs, in my writings on the constitutionality of DAPA, I adopted it for domestic matters. Specifically, I cited President Obama’s statements that he could not grant deferred action beyond DACA beneficiaries–a position he promptly reversed–as evidence of bad faith. I was widely criticized for this position, as my interlocutors insisted that courts should not consider off-the-cuff statements from the President.

The closest authority I could find to support this position was an exchange in Hamdan v. Rumsfield between Justices Thomas and Stevens. In dissent, Justice Thomas quoted from a DOD press conference, which explained the purpose of President Bush’s Military Commission Order No. 1. Justice Stevens rejected any reliance on these “press statements,” noting that “We have not heretofore, in evaluating the legality of Executive action, deferred to comments made by such officials to the media.” That is, the policy would be judged on its four corners, and not external remarks. But this did not directly concern the President’s press statements.

In Gridlock, I provide this summary of the doctrine, with references to Presidential pronouncements in Youngstown:

It is true that the President’s statements in informal fora are far different than official executive branch regulations published in the Federal Register or sworn testimony submitted to Congress. But these remarks resonate on a much deeper level. When the President speaks for the nation, he speaks with one voice as the “sole organ” of the United States government.411 This oft-cited dictum from United States v. Curtiss-Wright Export Corp.,412 originally voiced by Representative John Marshall in 1800, is seldom taken literally.413 Usually, courts listen to the “sole organ” speak through the form of general policy statements issued by an executive branch agency, or even developed by the Justice Department during the course of litigation. Seldom do we see such specific reflections from the Commander in Chief himself. Here, the President personally explained the contours of his own authority on a consistent and reasoned basis. That the comments of the only person elected to the highest office in the land were unscripted — and not prepared by an army of speechwriters — elevates this discourse. Further, these were not simply barbs about policy disputes, but explications about his presidential oath to “preserve, protect, and defend the Constitution of the United States.”414 As the President acknowledged during a town hall meeting on police violence, “I’m aware that my words matter deeply.”415 This may be particularly true when the President is, to borrow a phrase from Justice Frankfurter, “learned . . . in the law.”416 Indeed, President Obama has opined that his experience as an attorney makes his statements on executive power more authoritative than those made by members of Congress who are not “constitutional lawyers.”417 Perhaps most importantly, President Obama has defined the bounds of his own power in response to questions from we the people, the ultimate sovereigns in the United States and the source of his authority.418 These presidential pronouncements are not hollow utterances.

As with many of my ideas that that were ridiculed before January 20–such as my work on the need for uniformity with respect to nationwide injunctions concerning immigration–the “sole organ” theory has now gained a certain cache.

In brief after brief after brief in Washington v. Trump, the challengers cited then-candidate Trump’s statements about his desired “muslim ban,” as well as President Trump’s concerns for protecting Christians in majority-Muslim nations, as evidence of unlawful animus. The 9th Circuit judges specifically referenced those statements in its Establishment Clause analysis (though stopped short on relying on them). To prove the point about the “sole organ,” the panel also rejected an attempt by White House Counsel Don McGahn to clarify the executive order, such that green-card holders were not covered. That change had to come straight from the horse’s mouth, so to speak. Even after the 9th Circuit stayed en banc proceedings, on the government’s representation that a new executive order was forthcoming, the Washington AG continues to cite the President’s statements, which conflict with that of the Justice Department.

Throughout these proceedings, there appears to have been a lack of communication between the Department of Justice and the White House. On February 16, Defendants filed a supplemental brief on en banc consideration, representing that “[r]ather than continuing this litigation, the President intends in the near future to rescind the Order and replace it with a new, substantially revised Executive Order . . . .” 9th ECF 154, at 4. In response, the Court immediately issued an order staying further en banc proceedings. 9th ECF 161.

Yet on the same day—February 16—President Trump directly contradicted the representations made to this Court. During a news conference, the President informed the nation that he is pursuing his appeal in the Ninth Circuit.3 He explained that: “We’re issuing a new executive action next week that will comprehensively protect our country. So we’ll be going along the one path and hopefully winning that, at the same time we will be issuing a new and very comprehensive order to protect our people.” Id. at note 3.

In the earliest moments of the Trump Administration, we saw another manifestation of the President’s “sole organ”: the Twitter accounts of executive-branch agencies. The Washington Post reported, “Trump administration officials instructed employees at multiple agencies in recent days to cease communicating with the public through news releases, official social media accounts and correspondence, raising concerns that federal employees will be able to convey only information that supports the new president’s agenda.” The U.S. Department of Agriculture was apparently put under some sort of “gag order,” preventing it from releasing “any public-facing documents.” Similar orders were in effect at the EPA, Interior, and HHS. The National Park Service even apologized for retweeting photographs comparing the inaugurations sizes of President Obama and President Trump.  With respect to Obamacare, the Trump Administration canceled pre-paid advertisements promoting the open-enrollment season. As Eugene Volokh correctly pointed out, there are no free speech issues: “the First Amendment doesn’t give subordinates the right to choose what official government speech contains, over the objections of their superiors.” It is the President, indeed the “sole organ” of social media, that gets to decide what his subordinate agencies tweet.

One final area where the President’s personal statements may come up: in the court martial of Sgt. Bowe Bergdhal. Then-candidate Trump referred to Bergdahl as a “dirty rotten traitor,” and mimicked his execution by firing squad. Bergdahl’s lawyer, Eugene R. Fidell, argued that these statements would prevent a fair trial. The trial court judge denied the motion-to-dismiss, finding that“No reasonable member of the public, apprised of all the facts and circumstances and seeing campaign rhetoric for what it is, would believe that because candidate Trump said those troubling things and is now President Trump, the accused has been or will be denied a fair trial.” This case will be appealed to the Court of Appeals for the Armed Forces, and perhaps ultimately, the Supreme Court. Yet another place where the President’s statements will become par for the judicial diet.

Relatedly, on January 13, a detainee at Guantanamo Bay cited in an emergency motion Trump’s tweet that “these are extremely dangerous people who should not be allowed back onto the battlefield.” His lawyers explained that “the President-Elect has stated publicly his intent not to release any detainees from Guantanamo regardless of the facts or circumstances of their cases.” (Ultimately, Secretary Carter denied the motion to transfer, so the issue was moot).

I will write more about President Trump’s “sole organ.”

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Statutory Originalism

In most cases, originalism is associated with the interpretation of the Constitution. To understand provisions ratified in 1789, 1791, or 1868, scholars turn to contemporary sources to ascertain their original meaning. However, this modality is in no sense limited to the Constitution. It also applies to statutes, in what I think of as statutory originalism.

Many of the critiques of constitutional originalism apply with much weaker force to statutory originalism. First, the so-called “dead hand” problem is not present. While binding constitutional provisions are extremely hard to change–thus allowing the “dead hand” to control our polity–statutes can be easily changed with a mere majority vote in Congress. Second, while constitutional provisions are always present and binding, statutes that are unimportant often fall into desuetude due to a lack of enforcement. In this sense, bad statutes fade away, while (potentially) bad constitutional provisions linger indefinitely.

Third, and most importantly, it is far easier to ascertain the original understanding of a statute–especially one of fairly recent vintage–then a provision drafted two-hundred years ago. The volume of information attending the clandestine convention of 1787, while significant, is dwarfed by the legislative records of fairly mundane provisions enacted today. (Although I’ve written that the relevance of modern legislators’ statements–which may be motivated by a contrived attempt to affect judicial review–ought to be diminished). Further, lexicography–the study of language–is far more sophisticated today than it was two centuries ago. When reading a statute of some vintage, where the present-day meaning of a word has shifted, jurists can, and should look, to dictionaries at the time the provision was drafted, to ascertain its original understanding. Indeed, it is neither necessary, nor desirable, to find a dictionary from the same year as the statute. As Justice Scalia and Bryan Garner observed, “Dictionaries tend to lag behind linguistic realities.” If you are seeking the meaning of a well-established term in an 1819 statute, they wrote, ” it is generally quite permissible to consult an 1828 dictionary.”

Statutory originalism is most useful when the meaning of a word undergoes a fairly rapid linguistic evolution. Imparting a present-day meaning into a phrase that was selected by Congress some decades ago converts the U.S. code into a living breathing, document (a sort of living constitutionalism for statutes). Any arguments that support living constitutionalism–Article V is hard, and our laws must move with the time–apply with minimal force to statutes, which can be tweaked on the fly.

Perhaps there is no greater illustration of this dynamic today than the word “sex.” Title IX of the Education Amendments of 1972 prohibits discrimination “on the basis of sex.” 20 U.S.C. §1681(a). The 4th Circuit in GG v. Gloucester County School Board relied extensively on dictionaries to ascertain the meaning of “sex” in 1972. Judge Niemeyer’s dissent canvassed five contemporary dictionaries to establish the proposition that “sex” refers to the “physiological distinctions between males and females, particularly with respect to their reproductive functions.”:

Title IX was enacted in 1972 and the regulations were promulgated in 1975 and readopted in 1980, and during that time period, virtually every dictionary definition of “sex” referred to the physiological distinctions between males and females, particularly with respect to their reproductive functions. See, e.g., The Random House College Dictionary 1206 (rev. ed.1980) (“either the male or female division of a species, esp. as differentiated with reference to the reproductive functions”); Webster’s New Collegiate Dictionary 1054 (1979) (“the sum of the structural, functional, and behavioral characteristics of living beings that subserve reproduction by two interacting parents and that distinguish males and females”); American Heritage Dictionary 1187 (1976) (“The property or quality by which organisms are classified according to their reproductive functions”); Webster’s Third New International Dictionary 2081 (1971) (“the sum of the morphological, physiological, and behavioral peculiarities of living beings that subserves biparental reproduction with its concomitant genetic segregation and recombination which underlie most evolutionary change …”); The American College Dictionary 1109 (1970) (“the sum of the anatomical and physiological differences with reference to which the male and the female are distinguished …”).

The majority opinion by Judge Floyd likewise focused on the American College Dictionary (1970) and Webster’s Third  to “inform our analysis of how the term “sex” was understood at that time.” The full definition from Webster’s Third, is, by far, the most capacious:

the sum of the morphological, physiological, and behavioral peculiarities of living beings that subserves biparental reproduction with its concomitant genetic segregation and recombination which underlie most evolutionary change, that in its typical dichotomous occurrence is usu[ally] genetically controlled and associated with special sex chromosomes, and that is typically manifested as maleness and femaleness.

There is a reason why Webster’s Third was Justice Scalia’s bête noire. As I noted in Unraveled:

Scalia and Garner strongly criticized the follow-up edition, Webster’s Third, because of “its frequent inclusion of doubtful, slip-shod meanings without adequate usage notes.” Antonin Scalia and Bryan A. Garner, A Note on the Use of Dictionaries, 16 Green Bag 2d 419 (2013). See also MCI Telecomms. Corp. v. AT& T Co., 512 U.S. 218, 228 n. 3 (1994) (per Scalia, J.) (noting that “[u] pon its long-awaited appearance in 1961, Webster’s Third was widely criticized for its portrayal of common error as proper usage,” and citing as an instance “its approval (without qualification) of the use of ‘infer’ to mean ‘imply’”). Merriam-Webster’s editor-in-chief Frederick C. Mish was not troubled. “I regret having to say that Judge Scalia is in error on this matter,” Mish said, “but at least he has the satisfaction of knowing that his error is not reversible by a higher court.” William Safire, On Language: Scalia v. Merriam-Webster, N.Y. Times (Nov. 20, 1994),

Blackman, Josh. Unraveled: Obamacare, Religious Liberty, and Executive Power (p. 500). Cambridge University Press. Kindle Edition.

We should never forget that Justice Stevens concluded in Gonzales v. Raich that the cultivation of locally grown marijuana was an “economic activity” by citing Webster’s Third.

Unlike those at issue in Lopez and Morrison, the activities regulated by the CSA are quintessentially economic. “Economics” refers to “the production, distribution, and consumption of commodities.” Webster’s Third New International Dictionary 720 (1966). The CSA is a statute that regulates the production, distribution, and consumption of commodities for which there is an established, and lucrative, interstate market. Prohibiting the intrastate possession or manufacture of an article of commerce is a rational (and commonly utilized) means of regulating commerce in that product.

In any event, relying on Webster’s Third, the GG majority finds that these dictionary definitions are not dispositive:

Although these definitions suggest that the word “sex” was understood at the time the regulation was adopted to connote male and female and that maleness and femaleness were determined primarily by reference to the factors the district court termed “biological sex,” namely reproductive organs, the definitions also suggest that a hard-and-fast binary division on the basis of reproductive organs—although useful in most cases—was not universally descriptive. The dictionaries, therefore, used qualifiers such as reference to the “sum of” various factors, “typical dichotomous occurrence,” and “typically manifested as maleness and femaleness.” Section 106.33 assumes a student population composed of individuals of what has traditionally been understood as the usual “dichotomous occurrence” of male and female where the various indicators of sex all point in the same direction. It sheds little light on how exactly to determine the “character of being either male or female” where those indicators diverge.

This analysis does not really work. There is no evidence that the use of “sum of,” and the word “typical,” were in any way directed at what we gender identity, or behavior aspects of “sex.” Indeed, these qualifying words referred specifically to physiological differences related to reproduction, not identification.  Even in 1972, society was aware of people who were not, from a  physiological, perspective, strictly male or female. This is what Webster’s Third was likely trying to capture, and is distinct from the notion of gender identity. The phrase “gender identity” appears nowhere in any of the contemporary dictionaries. To quote Justice Scalia from MCI v. AT&T, the Court will not accept a definition derived from “a single dictionary … which not only supplements the meaning contained in all other dictionaries, but contradicts one of the meanings contained in virtually all other dictionaries.”

In a footnote, Judge Floyd provides contemporary definitions, which (anachronistically) bolster its interpretation.

Modern definitions of “sex” also implicitly recognize the limitations of a nonmalleable, binary conception of sex. For example, Black’s Law Dictionary defines “sex” as “[t]he sum of the peculiarities of structure and function that distinguish a male from a female organism; gender.” Black’s Law Dictionary 1583 (10th ed.2014). The American Heritage Dictionary includes in the definition of “sex” “[o]ne’s identity as either female or male.” American Heritage Dictionary 1605 (5th ed.2011).

Such latter-day definitions are irrelevant for purposes of statutory originalism. In MCI v. AT&T, Justice Scalia further rejected reliance on a dictionary “not yet even contemplated” when the statute was drafted.

Judge Niemeyer’s dissent dismissed the majority’s efforts to disentangle the word “sex” from its traditional definition, involving physiological characteristics.

Any new definition of sex that excludes reference to physiological differences, as the majority now attempts to introduce, is simply an unsupported reach to rationalize a desired outcome.

In the end, however, the majority does not actually assert that the meaning of “sex” in 1972 included the notion of gender identity. Rather, under the uber-deferential Auer framework, Judge Floyd concludes that though the Department’s interpretation is not “intuitive,” it is “not plainly erroneous.”

We conclude that the Department’s interpretation of how § 106.33 and its underlying assumptions should apply to transgender individuals is not plainly erroneous or inconsistent with the text of the regulation. The regulation is silent as to which restroom transgender individuals are to use when a school elects to provide sex-segregated restrooms, and the Department’s interpretation, although perhaps not the intuitive one, is permitted by the varying physical, psychological, and social aspects—or, in the words of an older dictionary, “the morphological, physiological, and behavioral peculiarities”—included in the term “sex.”

On appeal to the Supreme Court, however, this argument will no longer cut it. Even accepting the definition from Webster’s Third (the late Justice is indeed rolling around in his grave), GG’s construction of the word “sex” to include gender identity is not consistent with how the phrase was originally understood. Judge Floyd’s opinion is not the best interpretation, nor is it even a good interpretation of Title IX. It only works, as the 4th Circuit explained, in the Auer context, where–so long as it is not inconsistent with the statute–it will be upheld. That argument no longer controls.

There is indeed a certain appeal to this mode of statutory originalism. During his February 23 press conference, White House press secretary Sean Spicer employed a statutory originalist mode of thinking, asking how members of Congress would have understood the provision in 1972. Here are a few excerpts:

“I mean, if you look at this, the law that was passed in 1972 did not contemplate or consider this issue.”

“The reality is, is that when you look at Title IX, it was enacted in 1972.  The idea that this was even contemplated at that is preposterous on its face.”

“There’s no way that you can read Title IX from 1972 — anybody — and say that that was even contemplated back then.  It just — there’s nobody that is possibly suggesting that the law that was passed in 1972 did that.”

Spicer, not a lawyer, was probably repeating what the Attorney General told him. But it works in very simple sound bites that people can understand. This is likely a preview of what the Justice Department’s position in this case will look like.

Mike Dorf argues to the contrary, citing Justice Scalia.

The district might argue that the Congress that enacted Title IX did not have trans cases in mind, but so what? As Justice Scalia wrote for the unanimous Court in the 1998 Oncale case, “statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.”

Dorf’s argument conflates original intent with original public meaning. (Seeking the framer’s intent has long ago been abandoned by originalists of all stripes). Likewise, the GG Brief in Opposition states “When the regulation was drafted, few would have conceived that students like G. would have been assigned a female sex at birth and yet, as a result of hormone therapy, have facial hair and other male secondary sex characteristics, have a male designation on his government ID card, and live all aspects of life in accordance with his male gender identity.” (p. 31). All this may be true, but is irrelevant to understanding original meaning.

Title VII prohibits “discriminat[ion] . . . because of . . . sex.” Oncale presented the question whether Title VII is violated “when the harasser and the harassed employee are of the same sex.” That is, would male-on-male sexual harassment run afoul of Title VII? Justice Scalia’s analysis disregards what the drafters intended, instead focusing on what the provisions they enacted mean (or really meant, though he presumes the meaning of “sex” was unchanged in the three decades from the enactment of Title VII and Oncale, which he was almost certainly right about):

We see no justification in the statutory language or our precedents for a categorical rule excluding same-sex harassment claims from the coverage of Title VII. As some courts have observed, male-on-male sexual harassment in the workplace was assuredly not the principal evil Congress was concerned with when it enacted Title VII. But statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed. Title VII prohibits “discriminat[ion] . . . because of . . . sex” in the “terms” or “conditions” of employment. Our holding that this includes sexual harassment must extend to sexual harassment of any kind that meets the statutory requirements.

“The provisions of the law,” that is how statute is understood, trumps the drafter’s “principal concerns.”

To bring this back to GG, it is most certainly the case that the drafters of Title IX in 1972 were not concerned with how transgender students access bathrooms. (To the contrary, there is evidence in the legislative record of a concern that schools would not be able to separate male and female intimate facilities). However, the “provisions of the law” in Title IX cannot be interpreted as was the provision in Title VII. The word “sex” in Title VII had an ascertained meaning in 1968 and 1998, based on physiological characteristics.

There was no jurisprudential principle that would prevent Justice Scalia from applying Title VII to circumstances not envisioned by its drafters (male-on-male harassment) because the language they chose was susceptible to different conditions. The same cannot be said for Title IX, in which the language was not susceptible to sex-discrimination-based-on-identity. To make this originalist case, GG will have to provide contemporary evidence that in 1972, the word “sex” embraced not only physiological differences, but also–in the words of Respondent (p. 30)–“behavioral aspects of sex.” Citing later precedents about sex stereotypes may provide a rule of decision, but does not get you to original meaning. The merits brief has not yet been filed–I will report back once it is posted.

In closing, I’ll note that I predicted–even before the election–that the Chief Justice would rule for the government, by narrowing Auer deference, but ruling that the word “sex” is best understood to embrace gender identity. This would be King v. Burwell redux–strangling administrative deference, without issuing a controversial 5-4 decision on a weighty social issue. But who knows. My predictions are always wrong.

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