Academic journal article Constitutional Commentary

Lawson's Awesone (Also Wrong, Some)

Academic journal article Constitutional Commentary

Lawson's Awesone (Also Wrong, Some)

Article excerpt

It is always fun, and a rare treat (for me, at least), to be attacked from the right. Professor Gary Lawson has me down as a stark-raving moderate. According to Professor Lawson, my proposition--that Congress may abrogate the judicial doctrine of stare decisis in constitutional cases (1) --is, absolutely sound as a matter of present doctrine(!) (2) but wrong as a matter of the original meaning of Article III and the Necessary and Proper Clause (which Lawson calls the "Sweeping Clause," after founding-era practice rather than current shorthand).

Professor Lawson's argument, in a nutshell, is as follows. Major premise: The Sweeping Clause precludes enactment of laws that are not "proper" for carrying into execution the powers of another department, including (and this is the key) laws that interfere with those departments' autonomous exercise of their enumerated functions, unless the Constitution specifically permits it. (3) Minor premise: "The judicial Power" of Article III includes "the power to reason to the outcome of a case." (4) Conclusion: "Even if the courts are applying a wrongheaded, or even unconstitutionally wrongheaded, method of decision-making, the Sweeping Clause does not empower Congress to prescribe a different process." (5)

Under Lawson's admirably relentless reasoning, Congress cannot "properly" pass a statute forbidding courts to decide cases on the basis of coin flips, or the color of litigants' skin, or on the basis of vote-swapping or vote-selling. Congress simply has no power to pass any laws that affect the process of judicial case-deciding, other than to prescribe (some) rules of procedure. (6) (This is an important concession, as we shall see.)

This does not mean that courts can do whatever they want. It just means that the only constitutionally permitted remedies for outrageous or even unconstitutional misuses of the judicial power by the courts are, according to Lawson, (1) impeachment; and (2) executive refusal to enforce such decisions (in some circumstances). These are big sticks, and, judging from his other writings, Lawson apparently would wield them quite aggressively: He thinks that stare decisis is unconstitutional, (7) that the impeachment power is quite broad, (8) and that the President rightfully may refuse to execute clearly unconstitutional decisions of the judiciary. (9) Putting these views together, it would seem to follow that it is constitutionally "proper" (in Lawson's world) for Congress to impeach a judge who regularly follows prior precedent rather than the original public meaning of the Constitution's text, where the conflict between precedent and original meaning is clear. Put starkly, Congress may impeach judges for following stare decisis to reach results that they otherwise would be persuaded are wrong on originalist premises. In addition, the executive legitimately may refuse to enforce wrong judicial decisions that rely, wrongly, on stare decisis. (10)

But nonetheless--now, let me get this straight, Gary--Congress and the President cannot enact a statute purporting to oblige the judiciary to decide federal cases in conformity with these principles, the violation of which properly could subject the judges to impeachment and lead the executive to refuse to enforce the judgments thus rendered?! It is an unconstitutional intrusion on the province of the judiciary to pass a statute stating correct principles of constitutional law, but constitutional to hang the judges for departing from those principles?

Professor Lawson is also forced by his view of the Sweeping Clause to conclude, quite cheerfully, that many congressional regulations of judicial practice, including standard-of-review provisions of the Federal Rules of Civil Procedure, the Administrative Procedure Act, and the organic acts of many agencies, are all probably unconstitutional, the product of twentieth-century legislative adventurism. (11) Also unconstitutional are Federalistera congressional usurpations like the Full Faith and Credit Act (1790) and the Anti-Injunction Act (1793). …

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