Neil S. Siegel

Sustaining Collective Self-Governance and Collective Action: A Constitutional Role Morality for the Trump Era and Beyond

In the United States today, the behavior of the political branches is generally viewed as more damaging to the American constitutional system than is the behavior of the federal courts. Yet constitutional law scholarship continues to focus primarily on judges and judging. This Article suggests that such scholarship should develop for presidents and members of Congress what it has long advocated for judges: a role morality that imposes normative limits on the exercise of official discretion over and above strictly legal limits. The Article first grounds a role morality for federal elected officials in two purposes of the U.S. Constitution whose vindication requires more than compliance with legal rules: securing the American conception of democracy as collective self-governance and creating a reasonably well-functioning federal government. Given its close connection to those purposes, a role morality for presidents and members of Congress is appropriately described as constitutional, not merely political. This Article then proposes some rhetorical, procedural, and substantive components of constitutional role morality, including a commitment to consult the political opposition before taking important actions and a rebuttable presumption in favor of moderation and compromise. The Article also explains how different actors in the American constitutional system should execute their professional responsibilities if they are to make it more, rather than less, likely that such a role morality will eventually be adopted and maintained. A final part anticipates objections, including the concern that the vision offered here faces significant implementation problems. * David W. Ichel Professor of Law and Professor of Political Science, Duke Law School. For helpful suggestions, I thank Jack Balkin, Kate Bartlett, Sara Beale, Joseph Blocher, Jamie Boyle, Curt Bradley, Cinnamon Carlarne, Guy Charles, Ruth Colker, Katherine Mims Crocker, Deborah DeMott, Michael Dorf, Richard Fallon, Edward Foley, Barry Friedman, Claudia Geiringer, Craig Green, Jamal Greene, Mark Hickford, Vicki Jackson, Pam Karlan, Alexander, Kirshner, Maggie Lemos, Marin Levy, Bill Marshall, Toni Massaro, Campbell McLachlan, Darrell Miller, Jeff Powell, David Pozen, Jedediah Purdy, Barak Richman, Stephen Sachs, Chris Schroeder, Peter Shane, Reva Siegel, Marc Spindelman, and Ernie Young. I also thank the participants in an April 2017 conference at Indiana University (Bloomington) Maurer School of Law; a May 2017 faculty seminar at Victoria University of Wellington School of Law in New Zealand; an October 2017 faculty workshop at The Ohio State University, Moritz College of Law; and a November 2017 faculty workshop at Duke Law School. Finally, I thank Jane Bahnson of Duke Law Library for superb help tracking down sources.

After Recess: Historical Practice, Textual Ambiguity, and Constitutional Adverse Possession

The Supreme Court’s interpretation of the Recess Appointments Clause in NLRB v. Noel Canning stands as one of the Supreme Court’s most significant endorsements of the relevance of “historical gloss” to the interpretation of the separation of powers. This Article uses the decision as a vehicle for examining the relationship between interpretive methodology and historical practice, and between historical practice and textual ambiguity. As the Article explains, Noel Canning exemplifies how the constitutional text, perceptions about clarity or ambiguity, and “extra-textual” considerations such as historical practice operate interactively rather than as separate elements of interpretation. The decision also provides a useful entry point into critically analyzing the concept of constitutional “liquidation,” which the majority in Noel Canning seemed to conflate with historical gloss but which seems more consistent with the approach to historical practice reflected in Justice Scalia’s concurrence in the judgment. Finally, this Article argues that the historical gloss approach, when applied cautiously and with sensitivity to the potential concerns raised by Justice Scalia and others, is not vulnerable to the charge of licensing executive aggrandizement by “adverse possession.”

Dole's Future: A Strategic Analysis

As the U.S. Supreme Court imposes federalism-based limits on congressional power under the Commerce Clause and Section Five of the Fourteenth Amendment, Congress may be tempted to turn to the conditional spending power in order to achieve goals that it may not accomplish directly. In this article, I address whether a danger exists, as some suggest, that such use of the Spending Clause would render the Court more likely to cut back on its scope, narrowing or overruling South Dakota v. Dole, 483 U.S. 203 (1987). Using doctrinal analysis and game theory, I conclude that Congress should proceed with some but not great caution. It would be sensible for Congress to operate extensively within the large universe of potential interventions that do not implicate the subject matter of previous decisions. Moreover, it would be sensible for Congress to operate within the small universe of possible interventions that do implicate the subject matter of past rulings if the Court in those decisions indicated the permissibility of a Spending Clause substitute, or if Congress deemed its interest sufficiently important that it was worth taking the modest risk of provoking the Court to revisit Dole.