Oregon State Bar Annual Constitutional Law Section CLE 2.5 General CLE Credits December 5, 2014 • 1:00 to 4:15 p.m. Stoel Rives, LLP 900 SW Fifth Avenue, 19th Floor Portland, OR 97204 Annual Constitutional Law Section CLE December 5, 2014 Stoel Rives, LLP, 900 SW Fifth Avenue, 19th Floor 1:00 to 1:30 Registration 1:30 to 2:45 Are There Limits to Executive Power? 2:45 to 3:00 Break 3:00 to 4:15 Oregon Constitutional Law Update CLE Planning Committee: Erin Snyder, Office of Public Defense Services Alycia Sykora, Alycia N. Sykora, PC Matt Kalmanson, Hart Wagner, LLP Kevin Diaz, Compassion and Choices Judge Erin Lagesen, Oregon Court of Appeals 2.5 General CLE Credits Special thanks to our host Stoel Rives, LLP and to our cosponsors, The Federalist Society-Portland Lawyers’ Chapter and The American Constitution Society. Contents ____________________________ Speaker Biographies 1 Program Overview: Are There Limits to Executive Power? 3 Nicholas Quinn Rosenkranz, Hearing Testimony, U.S. House of Representatives Committee on the Judiciary, The President’s Constitutional Duty to Faithfully Execute the Laws 4 Garrett Epps, The Founders’ Great Mistake 11 Garrett Epps, Can We Talk Calmly About Obama's 'Executive Orders'? 18 Garrett Epps, Our National Debt 'Shall Not Be Questioned,' the Constitution Says 20 Garrett Epps, The Authority to 'Declare War': A Power Barack Obama Does Not Have 23 Program Overview: Oregon Constitution and Cases in 2014 26 Alycia Sykora, The Oregon Constitution and Cases in 2014 27 Speaker Biographies Professor Nicholas Quinn Rosenkranz teaches constitutional law and federal jurisdiction at Georgetown Law School. He is currently developing a new theory of constitutional interpretation and judicial review, and his recently published article on that subject, The Subjects of the Constitution in the Stanford Law Review (May 2010), is the single most downloaded article about constitutional interpretation, judicial review, or federal courts in the history of SSRN. Professor Rosenkranz clerked for Justice Anthony M. Kennedy at the U.S. Supreme Court and Judge Frank H. Easterbrook on the U.S. Court of Appeals for the Seventh Circuit. He has served as an Attorney-Advisor at the Office of Legal Counsel in the U.S. Department of Justice. He often testifies before Congress as a constitutional expert. He has also filed briefs and presented oral argument before the U.S. Supreme Court. Professor Rosenkranz is co-Chair of the Board of Visitors of the Federalist Society and a Senior Fellow at the Cato Institute. See www.cato.org/people/nicholas-quinn-rosenkranz and www.law.georgetown.edu/faculty/rosenkranz-nicholas-quinn.cfm. Professor Garrett Epps of the University of Baltimore teaches courses in Constitutional Law, First Amendment, and Fiction and Non-Fiction Writing for Law Students. He is a contributing writer to The Atlantic Online and serves as the magazine's Supreme Court correspondent. He is also a contributing editor of The American Prospect. His books include Wrong and Dangerous: Ten Right-Wing Myths about Our Constitution. Professor Epps's most recent book, American Justice 2014: Nine Clashing Visions on the Supreme Court, was published by the University of Pennsylvania Press. Professor Epps's previous book, American Epic: Reading the U.S. Constitution, was published in 2013 by Oxford University Press. American Epic was named a finalist for the American Bar Association’s Silver Gavel Book award. Two of his previous books, Democracy Reborn: The Fourteenth Amendment and the Fight for Equal Rights in Post-Civil War America (2006) and To an Unknown God: Religious Freedom on Trial (2001), were both also Silver Gavel finalists. See www.theatlantic.com/garrett-epps/ and http://law.ubalt.edu/faculty/profiles/epps.cfm. Matt Kalmanson is a partner at Hart Wagner, LLP. After graduating from Yale Law School, he clerked for Justice James Coleman of the New Jersey Supreme Court and Judge Susan Graber on the Ninth Circuit Court of Appeals. He is former counsel for the Oregon Legislature’s Judiciary Committees. Justice Jack Landau has been an Associate Justice on the Oregon Supreme Court since January 2011. Before his election to the Oregon Supreme Court, he was appointed to the Oregon Court of Appeals where he served for 18 years. In 1989, he left private practice and joined the Oregon Department of Justice, becoming Deputy Attorney General, where he represented state agencies at trial and on appeal, including arguing in the United States Supreme Court. Justice Landau has been an adjunct faculty member at Willamette University College of Law for 22 years, teaching Legislation. He is the author of numerous law review articles on statutory interpretation and state constitutional law. He holds an LL.M. from the University of Virginia School of Law. Constitutional Law 2014 - Page 1 Senior Judge David Schuman clerked for Oregon Supreme Court Justice Hans Linde, taught Constitutional Law and Administrative Law at the University of Oregon School of Law, and served as Associate Dean for Academic Affairs at the University of Oregon School of Law for four years. He received the Ersted Award for Distinguished Teaching and has published scholarly law review articles. Before joining the Oregon Court of Appeals in 2001, he was an Assistant Attorney General, then Deputy Attorney General, in the Oregon Department of Justice. In early 2014, he became a Senior Judge and will rejoin the faculty at the University of Oregon Law School in January 2015. He holds a Ph.D. in English Literature from the University of Chicago and is the 2014 recipient of the Frohnmayer Award for Public Service. Alycia Sykora clerked for Oregon Supreme Court Justice George A. Van Hoomissen, served as an Honors Attorney for the Oregon Department of Justice, and has been in private practice in Bend since 2002. She serves as a circuit court judge pro tem in Deschutes County, has taught Introduction to Comparative Politics at Central Oregon Community College, and coordinates the American Constitution Society’s Constitution in the Classroom Project in Central Oregon Constitutional Law 2014 - Page 2 Are There Limits to Executive Power? This session is cosponsored by the American Constitution Society and The Federalist Society. 1:30 p.m. to 2:45 p.m. How are limits to executive power under the U.S. Constitution determined? When have limits on executive power been exceeded? Nicholas Quinn Rosenkranz, Georgetown Law School Garrett Epps, University of Baltimore School of Law Moderator: Matt Kalmanson, Hart Wagner, LLP Constitutional Law 2014 - Page 3 U.S. House of Representatives Committee on the Judiciary Hearing: The President’s Constitutional Duty to Faithfully Execute the Laws December 3, 2013 Prepared Statement of NICHOLAS QUINN ROSENKRANZ PROFESSOR OF LAW GEORGETOWN UNIVERSITY LAW CENTER AND SENIOR FELLOW IN CONSTITUTIONAL STUDIES THE CATO INSTITUTE WASHINGTON, DC Mr. Chairman, Representative Conyers, Members of the Committee: I thank you for the opportunity to express my views about the President’s constitutional duty to “take Care that the Laws be faithfully executed.”1 This is a timely and important hearing, because many of the legal controversies of the day implicate this Presidential duty. In areas as important and diverse as healthcare, immigration, nuclear waste storage, tax enforcement, military action, and foreign aid, there has been an inchoate sense that the Administration has overstepped its authority. But the criticism has generally been issue-specific, and it has often conflated policy objections with constitutional objections. There has been very little systematic analysis of this behavior as a pattern. And more to the point, there has been very little analysis of the particular constitutional clause at issue. The relevant clause of the Constitution, which should be the lodestar of this discussion, is the Take Care Clause: “The President … shall take Care that the Laws be faithfully executed.”2 To put these recent controversies in constitutional context, it is essential to understand the meaning and purpose of this Clause. As always, it is best to begin by parsing the constitutional text. First, notice that this Clause does not grant power but rather imposes a duty: “The President … shall take Care…”3 This is not optional; it is mandatory. Second, note that the duty is personal. Execution of the laws may be delegated, but the duty to “take Care that the Laws be faithfully executed”4 is the President’s alone. Third, notice that the 1 U.S. CONST. art. II, § 3. 2 Id. (emphasis added). 3 Id. (emphasis added). 4 Id. (emphasis added). Constitutional Law 2014 - Page 4 President is not required to take care that the laws be “completely” executed; that would be impossible given finite resources. The President does have power to make enforcement choices—however, he must make them “faithfully.” Finally, it is important to remember the historical context of the clause: English kings had claimed the power to suspend laws unilaterally,5 but the Framers expressly rejected that practice. Here, the executive would be obliged to “take Care that the Laws be faithfully executed.”6 With these principles in mind, it is possible to view recent controversies through the proper constitutional lens. For this purpose, I shall focus on three recent examples— though, sadly, there are many others that one could choose. I shall focus on the President’s unilateral decision to suspend certain provisions of the Affordable Care Act, on the President’s unilateral abridgement of the Immigration