Author: Gerard Magliocca

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Introducing Guest Blogger Nicholas Georgakopoulos

ngeorgakI am pleased to welcome Nicholas Georgakopoulos to CoOp this month.  Professor Georgakopoulos is an expert on bankruptcy, securities regulation, and corporations who writes from a law and economics perspective.  He received his law degree at the Athens University School of Law, his LLM from Harvard, and then taught at the University of Connecticut before moving to the Robert H. McKinney School of Law, where he now holds the Harold R. Woodard Professorship.  Nicholas also owns a winery in Greece (probably a CoOp first, though I can’t say for sure) and is a wonderful colleague.  Hope you enjoy his stint here

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Further Thoughts on Halbig and Originalism

Since my post on Halbig and originalism drew several great comments (including a response by Larry Solum here), I thought would add some clarifying thoughts.

My point is that recovering the original public meaning of a legal text is often much harder than people care to admit. Historians are more likely than lawyers to say that the meaning of a past event is indeterminate.  Now does this mean that we can never know the original public meaning of something?  No.  Does it mean that we should not try to know?  No.  Originalists, in my view, just tend to be overconfident in what they think they know or can figure out.  If we are having a hard time with something from four years ago (assuming you believe that is the case), then where are we for texts from two hundred plus years ago?

Now the best rejoinder to the specific claim in my post is that a complex statute like the Affordable Care Act is not comparable to constitutional language.  The latter gets more widely discussed and is easier to understand.  That is true to some extent, but I’m not sure it’s a total winner.  People are always surprised at how little Section One of the Fourteenth Amendment was discussed at the time, for example, and you can find examples of statutes that were discussed in far greater detail (the Civil Rights Act of 1964, for example).

 

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Residence Requirement of the Federal Circuit

One of the most curious provisions in federal law is 28 U.S.C. Sec. 44(c), which states the following:

“While in active service, each circuit judge of the Federal judicial circuit . . . and the chief judge of the Federal judicial circuit, whenever appointed, shall reside within fifty miles of the District of Columbia.”

There is a residency requirement for active circuit judges in the other circuits (you have to live in the circuit), but drawing a 50 mile circle around DC for all federal circuit judges seems really silly.  First, it sharply limits who can be on that court.  Second, what’s so special about where you live when you hear (mostly) patent appeals.  And finally, why 50 miles?  Folks can easily take a train from New York to DC or live, say 60 miles away and commute.  Congress ought to consider repealing this residency rule.

UPDATE:  I wonder how this requirement could be enforced against an Article III judge.  Impeachment for Federal Circuit judges who move to New York?  Does the Chief Judge bar the person from hearing new cases until he or she moves back into the 50-mile zone?

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Halbig and Originalism

One criticism of originalism in constitutional law is that we cannot always determine with reasonable certainty what the Framers of the 1787 Constitution, the Bill of Rights, or the Fourteenth Amendment intended or what the public understood those provisions to mean.  Nonsense, say defenders of originalism.  There is plenty of evidence on what the Constitution meant, and even where there is less we can still pull enough together to give courts guidance.

Halbig pokes a hole in this argument.  At issue is a major provision in the most visible statute passed by Congress in years (if not decades).  And we cannot agree what that provision was trying to accomplish just four years after it was enacted.  Did Congress use subsidies to give states an incentive to set up health insurance exchanges, or was that not the case?  Was there a drafting error, or was this intentional?  If that is unknowable, what are we supposed to do with ambiguous constitutional provisions ratified more than two centuries ago?

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En Banc Review

The DC Circuit is considering a petition for rehearing en banc in Halbig (the Affordable Care Act case).  I have no opinion on what the Court should do, and I think that it’s silly for outsiders to advise judges on a discretionary matter.  (In other words, there is no “expertise” on whether to go en banc.)

I thought this would be a good opportunity, though, to reflect on how circuits differ with respect to en bancs.  Some have many and others have few.  Why is that?  One answer is that large circuits (I’m talking to you–Ninth) tend to go en banc more often.  In part this is because a panel is more likely to be unrepresentative of the court as a whole, and in part because large circuits are just less collegial because there are more judges who live further apart.  Another thought is that circuits that are badly split along ideological lines (I’m talking to you–Sixth) go en banc more often.

But there is also a distinctive culture that develops in each circuit about this issue.  The Second Circuit (where I clerked) has long had a strong aversion to going en banc.  (Indeed, the year that I clerked there were no en banc hearings.)  This practice is usually attributed to Learned Hand, who thought that en bancwere a waste of time and showed disrespect for the judges on the panel.  I think all of us would be interested to hear from former DC Circuit clerks about their thoughts on the norms there.

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Some Textual Questions

I was rereading the Constitution the other day, and two things stuck out this time that I had not thought about before.

1.  Article I, Section 3 says “each senator shall have one Vote.”  But Article I never says that each Representative shall have one vote.  I wonder why.  Perhaps because the Senate was new, the Framers felt the need to clarify the role of a Senator.  Representatives, by contrast, were more familiar and thus everyone knew that each one would get one vote.

2.  When addressing impeachment, Article I, Section 3 also says that anyone removed from office shall “be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.”  Does this mean that an indictment is a requirement?  In other words, if a state wanted to proceed by information against an impeached and removed official, can they do that?

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Vice Presidential Proxy Voting

96px-Joe_Biden_official_portrait_cropThere have been a few stories recently speculating on how the Senate would function if the November elections resulted in a 50-50 split between Republicans and Democrats.  The standard answer is that that Joe Biden would have to spend a lot more time on Capitol Hill to cast his tie-breaking vote.  While the practice has always been that a vice-president must cast his Senate vote in person, I wonder if that should be changed.

There are good reasons for not allowing proxy voting by House and Senate members.  You might think part of the duty of being a member is to show up and cast votes.  Verifying the accuracy of proxy votes could also be a problem, especially if an absent member is ill or in some remote place.  Likewise, permitting proxy voting might give party leaders more power than they already possess by effectively delegating votes to them.  (In this respect, you might say that voting in Congress is simply non-delegable.)

The Vice-President, though, is a different kettle of fish.  He isn’t really a member of the Senate.  He is only one person, so establishing the truth of his proxy should be easy.  He will always vote the Administration line, so there is no risk that the Senate Majority Leader will get more discretion as a result of the VPs proxy.   Moreover, the VP often needs to be elsewhere (on a diplomatic mission, in a national security council meeting), such that subjecting him to the whims of the Senate schedule could be a problem.  Why not let him vote by proxy?

I should add (on a related note) that a 50-50 Senate tie could expose the fact that there is no procedure in place to deal with an ill or incapacitated vice-president.  Suppose the VP has a stroke and cannot function for months.  Then all of the ties would be actual ties.  (Proxy voting would reduce but not eliminate this problem–no proxy could occur if the VP was in a coma.)  I do not believe that the Senate was equally divided during one of the periods (prior to the 25th Amendment) where we had no vice-president at all, but I’m not sure.

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The Incorporation of the Seventh Amendment

Recently a federal district court held that the Seventh Amendment applies to that territory and to the states.  While I am uncertain if this will stand up on appeal (it’s not clear that the issue need even be reached in this case), I did want to offer two thoughts about the opinion.

First, it’s disappointing (though not that surprising) that the Court said nothing about Reconstruction in its analysis.  There is a lot of talk about the importance of the civil jury to the Framers, but none about how that right was seen by John Bingham and his colleagues when they ratified the Fourteenth Amendment.  What that evidence would show (beyond Bingham’s view that the Seventh Amendment should be incorporated) is one thing, but to ignore it is wrong.

Second, I am unclear about how incorporating the Seventh Amendment against the States would change civil practice.  (Puerto Rico has a more unusual constitution, so the impact would be greater there).  In other words, to what extent can you not get a civil jury trial in a state nowadays?  Granted, the Seventh Amendment’s outdated money threshold ($20) may wipe out higher amount-in-controversy requirements that states have, but otherwise would incorporation matter?  As an aside, why twenty dollars?  There must be a story there.