Thoughts on Zivotofsky, Part Four: Justice Thomas as constitutional iconoclast (or, “What was so terrible about King George III, anyway?”)

In my previous post, I described the principles of constitutional foreign affairs authority on which almost all of the Justices agreed in Zivotofsky.  In the posts that follow, I’ll discuss their principal areas of disagreement.  Before doing so, however, just a few words on Justice Thomas’s solo opinion, which stands distinctly, and unapologetically, outside that basic narrative.

In his separate opinion, Justice Thomas characteristically asserts a series of constitutional propositions that no party in the case argued for and that attracted no support from any of his colleagues.  Most significantly:

— Justice Thomas goes to great lengths to argue that the President has constitutional authority to exercise any and all “unenumerated foreign affairs powers” of the Nation, by virtue of Article II’s vesting clause, which provides that “[t]he executive Power shall be
vested in a President of the United States.” Art. II, §1.  Fifteen or so years ago, this was a very heated topic of academic debate; but looking back on it, it’s not so clear just what turns on the question, since there is now a widespread agreement, reflected in the various opinions of the Justices in Zivotofsky, that the President does, indeed, have extensive implied constitutional authorities to act in the field of foreign affairs, whatever the textual sources of those authorities might be.  As the Zivotofsky case itself demonstrates, the important remaining disputes are principally not about what authorities the President has to act unilaterally, but instead about whether and under what circumstances Congress can circumscribe those presidential authorities–the subject of the rest of Justice Thomas’s opinion.  (The major remaining question about affirmative presidential authority, of course, is whether the President can take the Nation to war without congressional authorization; but Zivotofsky did not implicate that question.)

— Justice Thomas then argues that the President’s recognition authority cannot be limited by a statute such as the one at issue in Zivotofsky because Congress lacks a general article I power to regulate the passports of U.S. citizens.  As Justice Scalia points out in his dissenting opinion, this is a rather remarkable proposition, given that Congress has been enacting passport regulations for over 150 years, and the Court has acknowledged the legislature’s power to do so in a series of cases going back to 1958.

There’s sound basis for this age-old legislative and judicial understanding, as the Solicitor General acknowledged (see p.34 of his brief).  Such passport regulation is, for example, an exercise of Congress’s power to regulate foreign commerce.  The Court has long held–since at least 1849–that the interstate commerce power includes the authority to regulate the movement of persons between states.  See, e.g., The Passenger Cases (Smith v. Turner), 7 How. 283, 401 (1849) (“That the transportation of passengers is a part of commerce is not now an open question.”); see also Hoke v. United States, 227 U.S. 308, 320 (1913) (“Commerce among the states, we have said, consists of intercourse and traffic between their citizens, and includes the transportation of persons and property.”).  Accordingly, the movement of persons from one nation to another is “foreign commerce,” which the Court recognized as early as 1875, in Henderson v. Mayor of the City of New York, 92 U.S. 259.  Importantly, such movement of individuals from one jurisdiction to another is “commerce” for purposes of Article I, section 8 even when it is not done for a commercial purpose.  See, e.g., Caminetti v. United States, 242 U.S. 470 (1917) (affirming constitutionality of the Mann Act as applied to a man’s transportation of a woman across state lines so that she could be his mistress); Cleveland v. United States, 329 U.S. 14 (1946) (affirming constitutionality of the Mann Act as applied to the transportation of women across state lines for purposes of polygamy).

Moreover, as I discussed back in November, and as Seth Tillman has argued, the passport is government property, and Article IV gives Congress the power to “make all needful Rules and Regulations respecting . . . Property belonging to the United States.”

In addition, just as Congress has the authority (even in the absence of any enumerated power) to enact immigration laws by virtue of “[t]he power of exclusion of foreigners” that is “an incident of sovereignty belonging to the government of the United States as a part of those sovereign powers delegated by the constitution,” Chae Chan Ping v. United States, 130 U.S. 581, 609 (1889), so, too, it likely has the power to regulate the international travel of its nationals to the extent that, too, is an “incident of sovereignty” that belongs to the federal government “as a part of those sovereign powers delegated by the constitution.”

Finally, even if one takes the view that the power to regulate the international travel of U.S. persons (and thus their passports) resides in the first instance in “the government of the United States” or with the President, the Necessary and Proper Clause affords Congress the power to “make all Laws which shall be necessary and proper for carrying into Execution” not only its own enumerated powers, but also “all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”  That is to say, Congress can regulate the President’s passport power (or that of “the Government of the United States”), just as it regulates countless other aspects of the ways in which the President and the Court exercise their constitutional authorities.

Which brings us to the third, and most far-reaching, of Justice Thomas’s unorthodox arguments:

— As I noted in my previous post, the other eight Justices in Zivotofsky strongly affirm Congress’s general authority to enact laws “necessary and proper” to regulate the President’s own constitutional authorities.  (They disagree among themselves as to whether that congressional power to restrict the President carries over to statutes regulating the President’s recognition power; but otherwise, they express similar views of Congress’s extensive powers to limit or direct the President in the area of foreign affairs.)  [UPDATE:  I somewhat overstated this claim.  (Thanks to Mike Ramsey for the correction.)  The majority refers to the Necessary and Proper Clause as among those powers that gives Congress substantial authorities in the area of foreign affairs.  And Justice Scalia, for the three dissenters, characterizes Justice Thomas’s interpretation “of Congress’s authority to enact laws ‘necessary and proper for carrying into Execution’ the President’s executive powers” as “even more parsimonious” than his “parsimonious interpretation of Congress’s enumerated powers.”]

Justice Thomas would reject that well-established understanding altogether.  As he has done in recent separate opinions in cases such as ComstockKebodeaux and Gonzales v. Raich, he articulates a dramatically constricted view of Congress’s necessary and proper power, in which much of what Congress has done over the course of our constitutional history would be deemed not “proper.”  In particular, when it comes to legislation regulating the conduct of the other two branches, Justice Thomas would hold that such a law is not proper if “the branch to which the power is allocated objects to the action” (and perhaps, he adds, even if that branch does not object!).  Thomas favorably cites an article by Sai Prakash and Mike Ramsey to the effect that “Congress has the general power to legislate in support of the President’s foreign policy goals.  But . . . [s]ince it is derivative of the President’s power, it must be exercised in coordination with, and not in opposition to, the President.”

Suffice it to say that this understanding of the Necessary and Proper Clause would effect a fairly radical shift in our constitutional history.

Which is exactly what Justice Scalia does say, in his separate opinion.  Justice Scalia’s critique of Justice Thomas is rather remarkable.  Justice Scalia had joined Justice Thomas’s opinions in Comstock and Kebodeaux; had written his own dissenting opinion in Bond last year, in which he, too (joined by Justice Thomas), proposed an unjustifiably constricted view of the Necessary and Proper Clause (see my post with David Golove about Bond here); and had coauthored an opinion in NFIB v. Sebelius that would have profoundly limited the Necessary and Proper power, in a way that implicitly challenged the common understanding of that clause articulated by John Marshall in McCulloch v. Maryland.  Therefore, I honestly never thought I’d see a passage such as this in an opinion written by Justice Scalia; but here he is, channeling his inner John Marshall:

The [Thomas] concurrence’s stingy interpretation of the enumerated powers forgets that the Constitution does not “partake of the prolixity of a legal code,” that “only its great outlines [are] marked, its important objects designated, and the minor ingredients which compose those objects [left to] be deduced from the nature of the objects themselves.”  McCulloch, 4 Wheat., at 407.  It forgets, in other words, “that it is a constitution we are expounding.”  Ibid.

Justice Scalia (joined by the Chief Justice and Justice Alito) minces no words at the conclusion of his analysis of Justice Thomas’s jurisprudence:

Whereas the Court’s analysis threatens congressional
power over foreign affairs with gradual erosion, the concurrence’s approach shatters it in one stroke.  The combination of (a) the concurrence’s assertion of broad, unenumerated “residual powers” in the President, see ante, at
2–9; (b) its parsimonious interpretation of Congress’s enumerated powers, see ante, at 13–17; and (c) its even more
parsimonious interpretation of Congress’s authority to
enact laws “necessary and proper for carrying into Execution” the President’s executive powers, see ante, at 17–20; produces (d) a presidency more reminiscent of George III than George Washington.

A few years back I suggested that if one’s interpretative methods lead to the conclusion that waterboarding is not “torture” or “cruel treatment” under the relevant statutes and treaties, then, well, perhaps one ought to reconsider those interpretive methods.  I think Justice Scalia is saying something similar here:  Justice Thomas follows his legal theories wherever they may lead–right down the rabbit hole.  But if the result of fidelity to one’s priors is that 150+ years of constitutional history have been mistaken, and that in fact our Constitution ensures the unbounded executive supremacy described in the grievances in the Declaration of Independence . . .  well, then, perhaps one ought to have second thoughts about one’s priors, or one’s originalist methods of interpretation.  (The split between these Justices is reminiscent of a similar disagreement between them with respect to executive power in Hamdi.)

So what is Justice Thomas’s retort to this sharp challenge from Justice Scalia?  It’s fairly remarkable.  Mostly, he complains that Justice Scalia does not offer a more persuasive originalist account of his own–or, in any event, one that would offer more answers than questions–with respect to the limits of congressional power.  And for Justice Thomas, that appears to be a sufficient rejoinder:  He does not take issue with Justice Scalia’s George III comparison.  Instead, he responds that if this is where his principled originalist research takes him–to a constitutional regime more redolent of George III than of George Washington–so be it.  Or, perhaps, “what’s so wrong with that?”:

JUSTICE SCALIA characterizes my interpretation
of the executive power, the naturalization power, and
the Necessary and Proper Clause as producing “a presidency
more reminiscent of George III than George Washington.”
Post, at 19.  But he offers no competing interpretation
of either the Article II Vesting Clause or the Necessary and Proper Clause.

This passage is, I think, the reductio ad absurdum of “It takes a theory to beat a theory”–which my colleague Larry Solum describes as “surely one of the top ten all-time comments uttered by law professors to one another in those ritual interactions that are called ‘faculty workshops’ or ‘colloquia.'”  (As a fellow originalist once remarked:  “It is not enough to demonstrate that the other fellow’s candidate [for constitutional interpretation] (originalism) is no good; one must also agree upon another candidate to replace him.”)

Unfortunately, Justice Thomas wields much more power than we academics, and his insouciant response was not a stray comment in a faculty workshop, nor, as George Stigler described it in the lecture that coined the adage, application of a “fundamental rule of scientific combat.”  (“No amount of scepticism about the fertility of a theory can deter its use,” Stigler argued, “unless the sceptic can point to another route by which the scientific problem of regulation can be studied successfully.”)

Thankfully, then, the most significant thing about Justice Thomas’s views in Zivotofsky is that the other eight Justices so unequivocally repudiated them.  A helpful reminder that, sometimes, it takes five (or eight) Justices, and centuries of constitutional practice, to beat a theory.

* * * *

My posts on Zivotofsky:

1.  The Article I argument in Zivotofsky (Oct. 30, 2014–pre-argument)

2.  Zivotofsky:  Questions about Article I and Executive diplomatic speech (Oct. 31, 2014–pre-argument)

3.  The core of Zivotofsky:  Of passports, property, commerce, recognition . . . and, ultimately, diplomacy (Nov. 14, 2014–after argument)

4.  Thoughts on Zivotofsky, Part One:  How groundbreaking is it? (June 10, 2015)

5.  Thoughts on Zivotofsky, Part Two: Whither Article III standing? (June 10, 2015)

6.  Thoughts on Zivotofsky, Part Three: The broad consensus on presidential and congressional foreign affairs authorities (June 11, 2015)

7.  Thoughts on Zivotofsky, Part Four:  Justice Thomas as constitutional iconoclast (or, “What was so terrible about King George III, anyway?”) (June 11, 2015) 

About the Author(s)

Marty Lederman

Professor at the Georgetown University Law Center Follow him on Twitter (@marty_lederman).