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Last week, author James Boice interviewed me for a Salon essay about what would happen if the Second Amendment is repealed. With Justice Scalia gone, the vitality of the constitutional right to keep and bear arms is in doubt. Here are a handful of quotes from the article.

Besides, “if the Second Amendment were repealed tomorrow, very little would actually change right away. Chicago and D.C. might try to reinstitute their handgun ban, but virtually every state constitution carries a provision upholding the right to keep guns,” says Josh Blackman, a constitutional law expert at the South Texas College of Law.

Repealists respond that they understand that, but right away is not what they have in mind. Repeal would allow Americans over the ensuing decades, or even century, to write the laws we want with regard to firearms. If we want to regulate them like we do cars, we would be able to.

But we have never repealed one of the Bill of Rights. Could we even do that? Shouldn’t those be left alone?

Blackman says there is nothing sacrosanct about them—like any other amendment they are subject to Article V of the Constitution. If we want to repeal one, if the criteria is met, then repeal it we will. But he warns of a slippery slope:

“Once you repeal one Amendment, society normalizes the process of repealing another,” he says. “It casts our constitutional liberties as transitory.”

…

In fact, I could find no data or example in which repeal of one amendment led to a feeding frenzy upon others, and professor Blackman declined to provide me one. The argument of a slippery slope is an ideological one and not based in fact.

…

Blackman says that repealists would be better off attacking the problem through legislation. Wait for a future Supreme Court that thinks more like John Paul Stevensthan Scalia to overturn Heller. But after decades of seeing the NRA exploiting the indecipherability of the Second Amendment to thwart or neuter every potentially meaningful gun control measure, repealists are all out of faith that legislation can coexist with the provision as is.

Blackman brings up another potential problem: A repeal effort could backfire. Red states would retaliate by proposing an amendment strengthening the right to bear arms—for example, upholding the right of constitutional carry—which in our red meat climate could very well see more support than repeal would.

…

Though Josh Blackman sees repeal as a nonstarter today, he says the future of the effort relies on future Supreme Court decisions. “If the Court one day holds the right to bear arms includes outside the home, that would overturn significant precedent and make repeal much more valuable.”

 

Oliver Roeder of FiveThirtyEight analyzes the analysis of my LexPredict colleagues Mike Bommarito and Dan Katz to explore what Justice Scalia’s absence likely means for pending cases. I explored these cases last night in this post.

Tuesday evening at 6:30, I will be participating in a discussion at the National Constitution Center in Philadelphia on United States v. Texas and the Take Care Clause. Here is a description of the event:

After the House declined to pass a Senate immigration bill, President Obama used his executive authority to defer the deportation of millions of immigrants living in the U.S. illegally. Is the President’s policy unconstitutional? Join us for this debate featuring celebrated constitutional scholars Josh Blackman, Adam Cox, Cristina Rodriguez, and Nicholas Quinn Rosenkranz. Jeffrey Rosen, National Constitution Center president and CEO, moderates.

If you are in the area, please stop by. If nothing else, I’m sure we will offer a discussion of how Justice Scalia’s untimely passing affects this case. It is fitting to note his dissent in Arizona v. United States, which addressed the validity of DAPA (a policy not at issue in the case). By chance, I was in the Court when he delivered his blistering dissent from the bench. He had this to say:

After this case was argued and while it was under consideration, the Secretary of Home Land Security announced a program exempting from immigration enforcement some 1.4 million illegal immigrants.

A husbanding of scarce enforcement resources can hardly be the justification for this since those resources will be eaten up by the considerable administrative cost of conducting the non-enforcement program which will require as many as 1.4 million background checks and by any rulings on request for dispensation.

The President has said that the new program is “the right thing to do” in light of Congress’ failure to pass the administration’s proposed revision of the immigration laws.

Perhaps it is, though Arizona may not think so.

But to say as the Court does, that Arizona contradicts federal law by enforcing applications of federal immigration law that the President declines to enforce boggles the mind.

I am deeply saddened we will never get to see what Justice Scalia would write about this United States v. Texas. We are all worse off for losing his wisdom, whether or not you agree with it.

One of the themes that I’ve seen develop is that the Senate has a constitutional obligation to give a President’s nominee and up or down vote. This argument is based on the supposition that Article I imposes some sort of good faith duty on Congress not to block a President’s nominees. This is not an accurate understanding of our separation of powers. I explored this issue in 2014 in an article after Noel Canning, and have updated it in a new article in light of recent events. National Review published my article this morning titled, The Framers Made the Appointment Process Explicitly Political. Here is the introduction.

In October 2013, a reporter asked Justice Antonin Scalia what he thought about the government shutdown. The gregarious justice replied, “I have a deal with the Congress. I leave them alone. They leave me alone.” He was exactly right. The monastic Supreme Court is formally isolated from the political process in all respects, but one — the appointment process. Long before they enter the marble palace, judicial nominees must run a political gauntlet that the Constitution itself has erected. The president has the duty to appoint officials — he “shall nominate . . . judges of the Supreme Court.” But the executive has this power only “by and with the Advice and Consent of the Senate.” Critically, the Senate is under no obligation to give the authority to the president.

This disjunction — the president shall nominate, but the Senate does not have to confirm — activates the very sort of structural bulwarks that the Framers hardwired into the Constitution. The Supreme Court’s unanimous 2014 decision in National Labor Relations Board v. Noel Canning reaffirmed this foundational lesson: When there is inter-branch disagreement that cannot be resolved through the political process, no nominee can be confirmed. Justice Scalia’s prescient concurring opinion in that case reminds us that senatorial refusal to confirm is not an unforeseen flaw but an intentionally designed feature of the Constitution. This is true even where it frustrates the orderly functioning of the federal government.

The Constitution is framed to require the President to take many executive actions, but imposes virtually no legislative duties on the Congress (beyond paying salaries, receiving the state of the union, and a few other items). There is no textual or historical requirement to “consent” to a nominee, and “advice” could be to tell the President to pick someone else. The failure to vote to confirm a nominee is a political problem, not a constitutional problem. And one that must be assessed by the electorate.

This dichotomy — where the president has to act, but the Congress does not — exists throughout the Constitution. The president has a duty to “take care that the laws are faithfully executed.” In contrast, “Congress shall have Power” to make a number of laws, but need not do so. Far more pressing than a vacant seat on the Supreme Court is a Congress that declines to enact the president’s favored laws. As we saw in 2013 when Congress and the president could not reach a compromise over the budget, there was a shutdown of non-essential activities of the federal government. At its core, this was a political problem and not a constitutional problem. Congress has no duty to vote for the president’s preferred budget, no more than Congress needs to confirm a president’s nominees. The shutdown, like a decision to block a judicial nominee, and like all political decisions, will be assessed by the electorate.

Even where the Senate’s refusal to act results in the total shutdown of a key governmental agency–the NLRB–the Senate still has no obligation to act. Recall in that case that Republicans filibustered, blocking a vote altogether on the nominee. Teaching us this lesson is the Court’s unanimous decision in Noel Canning.

All nine justices forcefully rejected the assertion that the Senate has any duty to confirm a nominee, even if the Senate’s refusal inhibits the efficient operation of the government. Justice Scalia cogently made the point in a separate, concurring opinion. Writing with an air of clairvoyance — that we will probably recognize for years to come — he explained that “convenience and efficiency” are not the “primary objectives” of our system of government. Rather, the sort of “Senatorial intransigence” that gave rise to this case “is not a bug” but “a calculated feature of the constitutional framework.” As legal scholar Adam J. White noted in a 2004 article, the Founding-era debates over the confirmation process do “not support an assertion that the constitutional provision for advice and consent contains an implicit obligation to act on the President’s nominations.” The Senate has the constitutional prerogative to vote down a candidate, or to not vote at all.

The other Justices reaffirmed this point.

During oral arguments in Noel Canning, Chief Justice Roberts put it bluntly to Solicitor General Verrilli: “You spoke of the intransigence of the Senate. Well, they have an absolute right not to confirm nominees that the president submits.” The government was asserting, Justice Alito added, that “when the Senate acts, in [the government’s] view, irresponsibly and refuses to confirm nominations, then the president must be able to fill those positions.” Roberts and Alito know a thing or two about intransigence, as then–Senator Obama voted against both of their nominations. But they well understood that if the Senate refuses to confirm a nominee, the Constitution provides no remedy for the president.

This sentiment was not limited to the conservative Justices. Justice Breyer told Verrilli, “I can’t find anything that says the purpose of [the recess-appointments clause] has anything at all to do with political fights between Congress and the president.” Breyer, a long-time counselor to Senator Ted Kennedy, explained that the Senate’s refusal to confirm the president’s nominees was a “political problem, not a constitutional problem.” Justice Kagan added that the NLRB’s going “dark” was directly “a result of congressional refusal.” Kagan, too, felt the brunt force of senatorial refusal. In 1999, President Clinton nominated her to the D.C. Circuit Court of Appeals, but because Senate Republicans scheduled no hearing, her nomination lapsed.

In short, this is a political issue, and not one of constitutional good faith on the part of Congress. They have no such duty, and their failure to act in good faith is to be judged by the voters.

There is an important lesson to learn from Noel Canning. The decision of the Senate to confirm a nominee, or not confirm him at all, is an awesome political power the Framers vested exclusively in the Senate. And with that political power comes political accountability. If the American people disagree with the decision not to exercise this power, they can vote accordingly. But we should not pretend that the Senate has some sort of constitutional duty to confirm a nominee, or even schedule a vote.

Disclosure: As I note in the article, I am supporting Sen. Ted Cruz, but these are views I adopted long ago. Indeed, this piece is copied substantially from a 2014 article I wrote on Noel Canning.

In anticipation of my speech at the National Constitution Center on Tuesday, the Philadelphia Inquirer solicited a pice on United States v. Texas. Here is the introduction:

This spring, in United States v. Texas, the Supreme Court will decide the legality of President Obama’s executive action on immigration, known as Deferred Action for Parents of Americans (DAPA). Critically, the court ordered the Obama administration to answer a pivotal question:

Whether DAPA “violates the take-care clause of the Constitution.”

In 225 years, the Supreme Court has never had occasion to ask the president whether he has reneged on his oath to take care that the laws are faithfully executed. In June, the Supreme Court may provide an answer to this foundational question.