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My second question on my Spring 2016 constitutional law exam imagined a Bush-v-gore-stlye constitutional crisis surrounding a deadlocked vote on Ted Cruz’s eligibility for the Presidency. But there are some interesting twists with Congress’s efforts to provide a legislative solution. I wrote this before the Indiana primary (wishful thinking, huh?) so suspend your disbelief.

Instructions: You are a law clerk for Chief Justice John Roberts. He has asked you to prepare a memorandum addressing five issues about a case arising from the 2016 Presidential election. Four of these questions will be based on issues from before the case is argued, and the fifth question arises after the case is argued. Please be sure to answer all five questions with no more than 1,000 words. Suspend your disbelief.

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Today is November 9, 2016. Yesterday, in the presidential election, Republican Ted Cruz defeated Democrat Hillary Clinton, by an anticipated electoral-college majority of 287 to 251. (A candidate needs 270 electoral votes to win the election). However, there is a constitutional crisis. Katherine, the Secretary of State of Pennsylvania, refuses to certify any votes cast for Cruz. She asserts that Cruz is ineligible to become President because he is not a natural born citizen. Ted Cruz was born in a Canadian hospital to a U.S. Citizen mother.

Katherine cites Article II, Section 1, Clause 5, which provides:

No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President.

Katherine, a Democrat, announced that she would only certify the votes for Clinton. As a result, Clinton would receive all of Pennsylvania’s twenty electoral votes. This decision would flip the outcome of the election, with Clinton receiving 271 votes, and only 267 for Cruz. Clinton would then become the 45th President.

Cruz immediately protests, claiming that he is eligible to be President, and his votes should be certified. Cruz argues that a person born abroad to a U.S. citizen parent is a U.S. citizen from birth with no need for naturalization. And the phrase “natural born Citizen” in the Constitution encompasses all such citizens from birth. Thus, an individual born to a U.S. citizen parent — whether in California or Canada or the Panama Canal Zone — is a U.S. citizen from birth and is fully eligible to serve as President if the people so choose. And the people of Pennsylvania so chose.

With the transition of power in flux, the House and Senate quickly vote on, and pass the Natural Born Citizen Act of 2016 (NBCA). The act has five sections:

Section 1: For purposes of Article II, Section 1, Clause 5, a person who is born to a U.S. Citizen is a “natural born citizen,” regardless of where the person is born.

Section 2: This Act shall apply to all presidential candidates who received votes prior to November 9, 2016.

Section 3: The interpretation of the Constitution offered in Section 1 shall be binding on all federal courts.

Section 4: All executive officers of the several states shall be bound by this Act.

Section 5: All constitutional challenges to this Act shall be heard before a three-judge panel in the U.S. District Court of the District of Columbia. The judgment from this court shall be reviewable by appeal directly to the Supreme Court of the United States.

President Obama, who has had his own experiences with the Natural Born Citizen clause, vetoes the bill. Publicly he states that he has doubts about the law’s constitutionality, because Congress cannot impose its interpretation of the Constitution on the other branches. Privately, however, he admits that he wants his former Secretary of State to become President over Cruz. To the surprise of many, in a rare act of bipartisanship, the Senate and House override the President’s veto. (Suspend your disbelief). The NBCA becomes law.

Katherine announces that Section 4 of the NBCA is unconstitutional, and states that she will not certify Cruz’s votes. Pursuant to Section 5 of the NBCA, Cruz files suit against Katherine before a three-judge panel of the U.S. District Court for the District of Columbia. Cruz is seeking a declaratory judgment of whether NBCA is constitutional. Clinton, who has a concrete injury in the outcome of the case—the presidency—intervenes, and argues that the act is unconstitutional in its entirety.

The three-judge panel hears arguments on November 19—exactly one month before the electoral college must vote on December 19. The oral arguments are fiercely divided, and the next day the three judges jointly issue a stunning, one-sentence order: “With this court unable to reach a timely resolution of the claims, pursuant to 28 U.S.C. § 1254, we certify this case to the Supreme Court of the United States for a final resolution.” Through this arcane procedural move, a decision in the lower court is bypassed, and the case is sent directly to the Supreme Court.

On November 24, the Supreme Court agreed to hear the certified case, limited to the questions of whether sections 1, 2, 3, and 4 of the NBCA are constitutional. Following a brutal briefing schedule, oral arguments are scheduled for December 1.

Before oral arguments, the Chief Justice asks you to prepare a memorandum that answers the following four questions:

1. Under what authority can Congress enact Section 1 of the NBCA?
2. Is Section 2 of the NBCA constitutional?
3. Is Section 3 of the NBCA constitutional?
4. Is Section 4 of the NBCA constitutional?

After arguments, the Justices hold their private conference the morning of December 2. The meeting usually takes an hour. However, that day the Chief Justice returns to chambers twelve hours later. He tells you, “The Court has divided evenly, 4 Justices to 4 Justices. With Justice Scalia’s absence, there is no way to cobble together a majority opinion.” You ask, “Can’t you reach a compromise?” The frustrated Chief Justice replies, “We tried for twelve hours. No one is willing to budge.” (Suspend your disbelief).

Under the Court’s normal practice, when the Justices deadlock on a 4-4 tie, the judgment of the lower court is affirmed. However, due to the fact that the three-judge panel did not render a decision—they certified the case to the Supreme Court—there is no judgment to affirm. A tied vote before the Supreme Court would leave unresolved the constitutional crisis.

The electoral college is scheduled to meet in two weeks, and Katherine still refuses to certify the votes for Cruz.

The Chief Justice asks you to answer a final question. In answering this final answer, put aside your personal preference of which candidate you support. Remember, your answer for all five parts must total no more than 1,000 words. Think carefully about your answer.

5. What happens next?

The New York Times Room for Debate invited me to submit a contribution on the impact of Heller and McDonald on the power of the government to enact gun control laws. I concede that the precedents have had a limited effect on legislative efforts, but the cases have altered our constitutional culture.

In 2008, the Supreme Court affirmed in District of Columbia v. Heller that a federal handgun ban violates the Second Amendment. Two years later in McDonald v. Chicago, the justices held that state and local governments also could not prohibit handguns. Over the last six years, a bevy of challenges have been filed against various firearm laws. For the most part, the lower courts of appeal have upheld them. On appeal, the gun-shy Supreme Court has refused to intervene in every Second Amendment case since McDonald. In December 2015, Justices Thomas and Scalia castigated their colleagues’ complacency, as the inferior courts “relegat[ed] the Second Amendment to a second-class right.”

In light of this track record, many scholars contend that court’s interpretation of the Second Amendment has not had a meaningful effect on gun control regulations, beyond invalidating handgun bans in Chicago and the nation’s capital. This perspective misses the forest for the trees. Heller and McDonald, and the two-decade process that led to those landmark cases, have revolutionized our constitutional culture in profound ways.

Three decades ago there was a wide-ranging consensus that the antiquated Second Amendment only secured the right of states to maintain militias, and in no way affected gun control laws. Chief Justice Warren Burger, in a now famous 1990 interview in Parade Magazine, wrote that the idea that there was an individual right to keep and bear arms was a “fraud.” But following the powerful research of scholars like Don B. Kates Jr.,Sanford Levinsonand others, the history of the Second Amendment came back into focus: The two-century old provision guarantees a right of individuals, unconnected with militia service, to bear arms.

Today, despite contentious Supreme Court decisions, and rancorous public debates, politicians across the spectrum now acknowledge the power of the Second Amendment. Hillary Clinton recently said, “I believe law-abiding, responsible Americans have a right to own guns.” Then-Senator Barack Obama likewise acknowledged, “I believe that the Constitution confers an individual right to bear arms,” and said he “never favored an all-out ban on handguns.” Both politicians then promptly endorsed “reasonable” gun control measures, but their admission of the right is a testament to our restored constitutional paradigm.

There was a time when the only constraint on firearm restrictions was the popular will. Now, with Heller and McDonald on the books, legislatures must also contend with the Constitution. This altered dynamic is illustrated by the constitutional challenge to New York’s post-Sandy Hook gun laws. A federal judge in Buffalo upheld the SAFE Act’s assault weapon registry and prohibition of magazines that hold more than 10 bullets. But the court invalidated the requirement that only seven bullets could be loaded into a ten-bullet magazine. “It stretches the bounds of this court’s deference to the predictive judgments of the legislature,” Judge William Skretny wrote, “to suppose that those intent on doing harm (whom, of course, the act is aimed to stop) will load their weapon with only the permitted seven rounds.” In other words, the fanciful law makes no sense — as it will never be followed by malefactors — and doesn’t pass constitutional muster.

Legislatures, take note. Even if the lower courts routinely — and in my estimation erroneously — uphold gun control measures, Heller and McDonald still require the government to ensure that laws actually promote public safety, and are not merely arbitrary and undue burdens to the right to bear arms.

Last week, Judge Brett Kavanaugh gave a keynote address at the Antonin Scalia School of Law’s Center for the Study of the Administrative State. (Neomi Rao and her colleagues put on a fantastic conference!). During his remarks, Judge Kavanaugh offered a preview of his book review of Judge Robert Katzmann’s book on statutory interpretation. The Harvard Law Review has now published the review, with a response by Judge Katzmann.

One of Judge Kavanaugh’s insights, which he stressed during his remarks at GMU, focused on the interchange between Chevron Step 1 and legislative history. From the abstract:

But more work remains. As Justice Scalia’s separate opinions in recent years suggest, certain aspects of statutory interpretation are still troubling.4 In my view, one primary problem stands out. Several sub- stantive principles of interpretation — such as constitutional avoid- ance, use of legislative history, and Chevron — depend on an initial de- termination of whether a text is clear or ambiguous. But judges often cannot make that initial clarity versus ambiguity decision in a settled, principled, or evenhanded way.

In short, judges have wildly difference conceptions of what makes a statute ambiguous.

From the judge’s vantage point, the fundamental problem once again is that different judges have wildly different conceptions of whether a particular statute is clear or ambiguous. The key move from step one (if clear) to step two (if ambiguous) of Chevron is not de- terminate because it depends on the threshold clarity versus ambiguity determination.172 As Justice Scalia pointed out, that determination “is the chink in Chevron’s armor — the ambiguity that prevents it from being an absolutely clear guide to future judicial decisions.”173

I see that problem all the time in my many agency cases, and it has significant practical consequences. In certain major Chevron cases, different judges will reach different results even though they may ac- tually agree on what is the best reading of the statutory text.

We saw this dynamic throughout the Halbig and King litigation. On the D.C. Circuit, for example, Judges Griffith and Randolph thought “established by the state” was not ambiguous; Judge Edwards did.

Kavanaugh notes that the Court has retreated, somewhat, from Chevron deference, most recently in King v. Burwell. The decision, he notes, raises two questions:

And King v. Burwell in particular raises two significant questions that the Supreme Court will presumably have to confront soon: First, how major must the ques- tions be for Chevron not to apply? Second, if Chevron is inappropriate for cases involving major questions, why is it still appropriate for cases involving less major but still important questions?

So what’s the solution? The former White House lawyer writes that agencies still get deference for certain terms of art like “reasonable” or “appropriate.” But when interpreting a specific statutory phrase, Judges should interpret the text of the statute–presumably without resort to extraneous and malleable sources like legislative history. .

But in cases where an agency is instead interpreting a specific stat- utory term or phrase, courts should determine whether the agency’s in- terpretation is the best reading of the statutory text. Judges are trained to do that, and it can be done in a neutral and impartial man- ner in most cases.

In short, the problem with certain applications of Chevron, as I see it, is that the doctrine is so indeterminate — and thus can be antithet- ical to the neutral, impartial rule of law — because of the initial clarity versus ambiguity decision. Here too, we need to consider eliminating that inquiry as the threshold trigger.

Judge Katzmann seems intrigued by the proposal:

Judge Kavanaugh encourages us to ask when deference is due to an agency interpretation. He proposes distinguishing between statutes using broad and open-ended terms, where courts should generally give agencies the discretion to make policy judgments, and statutes with specific terms or phrases, where courts should determine whether the agency’s interpretation is the best reading of the statutory text. Judge Kavanaugh raises an issue well worth considering — whether under the current Chevron framework, there is undue deference to an agency’s interpretation of a statute where the court is in as good a position as an agency to make a competent determination.

Kavanaugh also critiqued the modern-day incarnation of Chevron, because it encourages the executive branch to be “extremely aggressive.” In effect, the courts share in the blame for executive overreach, because their judicial doctrine emboldens it.

In that regard, it is important to understand how Chevron affects the Executive Branch. From my more than five years of experience at the White House, I can confidently say that Chevron encourages the Executive Branch (whichever party controls it) to be extremely aggres- sive in seeking to squeeze its policy goals into ill-fitting statutory au- thorizations and restraints. My colleague Judge Tatel has lamented that agencies in both Republican and Democratic administrations too often pursue policy at the expense of law.165 He makes a good point. As I see it, however, that will always happen because Presidents run for office on policy agendas and it is often difficult to get those agen- das through Congress. So it is no surprise that Presidents and agencies often will do whatever they can within existing statutes. And with Chevron in the mix, that inherent aggressiveness is amped up signifi- cantly. I think some academics fail to fully grasp the reality of how this works. We must recognize how much Chevron invites an extreme- ly aggressive executive branch philosophy of pushing the legal enve- lope (a philosophy that, I should note, seems present in the administra- tions of both political parties). After all, an executive branch decisionmaker might theorize, “If we can just convince a court that the statutory provision is ambiguous, then our interpretation of the statute should pass muster as reasonable. And we can achieve an important policy goal if our interpretation of the statute is accepted. And isn’t just about every statute ambiguous in some fashion or another? Let’s go for it.” Executive branch agencies often think they can take a par- ticular action unless it is clearly forbidden. 

And even if it is “clearly forbidden,” they do it anyway if no one has standing to challenge it (see House of Representatives v. Burwell).

Keynote Address: Justice Scalia and Deference from Mason CSAS on Vimeo.

Tony Mauro has a delightful piece about the Chief Justice’s citation in U.S. Army Corps of Engineers v. Hawkes to a 1933 article about Peat and golf.

The late U.S. Supreme Court Justice Antonin Scalia once lamented in an opinion that “the paths of golf and government, the law and the links” sometimes cross, when in fact golf was none of the court’s business.

But Chief Justice John Roberts Jr., an avid golfer, could not resist mingling golf with law in a recent decision that did not get much attention.

The case was U.S. Army Corps of Engineers v. Hawkes, which involved both the Clean Water Act and the Administrative Procedure Act—two statutes that would seem far removed from the sport of golf.

But Roberts made a connection because the case was brought by three companies that mine peat in the bogs of Minnesota. And peat, it turns out, can be part of the soil mix that goes into golf course greens. Who knew?

That link, so to speak, was enough for Roberts to detour from facts relevant to the case. Gratuitously, he observed on page three of the opinion that peat can be used “to provide structural support and moisture for smooth, stable greens that leave golfers with no one to blame but themselves for errant putts.”

To back up his assertion, Roberts cited a 1933 article that appeared in a publication of the United States Golf Association (USGA.) The highly technical article, titled “Use of Peat and Other Organic Materials on Golf Courses,” actually portrays peat as a mixed blessing for golf courses, but never mind; it gave Roberts the hook to work golf into his jurisprudence.

The article closes with perhaps my most cringe-inducing pun yet:

But court scholar Josh Blackman, a vocal critic of judges who do outside fact-finding, was willing to give Roberts a mulligan: “This stroke was not par for the course for the eagle-eyed chief justice, who usually chips away at citations that are out of bounds.”

The National Constitution Center hosted me for a discussion on “The Next Supreme Court Battle.” I was joined by former 3rd Circuit Judge Timothy Lewis, Michael Gerhardt of UNC Law School, and David Strauss of the University of Chicago Law School. As always, the event was moderated by Jeff Rosen. I was the sole person on the stage who did not think the Senate had any obligation to provide a hearing for Judge Garland. My remarks were based on articles I wrote in the Wall Street Journal and National Review. I also previewed some of the arguments advanced in Restoring the Lost Confirmation, which I co-authored with Randy Barnett for the University of Chicago Law Review Online.

You can watch the video here (my questions come at 10:30, 23:30, 38:40, 50:05, and 1:10:10).

Tonight: Judge Timothy Lewis, @JoshMBlackman, Michael Gerhardt @unc_law & David Strauss @UChicagoLaw discuss the SCOTUS confirmation process

— Constitution Center (@ConstitutionCtr) May 26, 2016

“The Constitution is entirely silent on whether the Senate should take any steps whatsoever.” @JoshMBlackman #AmericasTownHall

— Constitution Center (@ConstitutionCtr) May 26, 2016

“The Robert Bork hearing is the starting point of where we find ourselves today.” @JoshMBlackman #AmericasTownHall

— Constitution Center (@ConstitutionCtr) May 26, 2016

“Justice Scalia wrote that gridlock is a feature and not a bug of our Constitution.” @JoshMBlackman #AmericasTownHall

— Constitution Center (@ConstitutionCtr) May 26, 2016

“This is a symptom and not the root of the problem.” @JoshMBlackman on partyism #AmericasTownHall

— Constitution Center (@ConstitutionCtr) May 26, 2016

“Confirmation hearings are a waste of time and they reveal nothing.” @JoshMBlackman #AmericasTownHall

— Constitution Center (@ConstitutionCtr) May 26, 2016

A thrilling debate on the Supreme Court confirmation process & Judge Merrick Garland! #AmericasTownHall pic.twitter.com/przHisrNpK

— Constitution Center (@ConstitutionCtr) May 26, 2016