Justice Kavanaugh would make the greatest difference in relatively non-political cases about executive power.
In my prior post, I described Jonathan Mitchell’s analysis of precedent, which he attempts to derive from the text of the Supremacy Clause. Here, I want to draw out one implication of his analysis: one that concerns whether the Constitution takes priority over federal statutes.
A key premise for Mitchell is that neither the Supremacy Clause nor the Constitution gives priority to any of the three sources of supreme law. The Supremacy Clause provides in part that “This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land.” He believes the Constitution is silent as to the hierarchy between the Constitution, federal statutes, and treaties.
Notice that, under his analysis, this means that the priority of the Constitution over federal statutes – and judicial review of federal statutes – is not required by the Constitution. Rather, he believes it is discretionary with the courts.
In my view, however, Mitchell is clearly mistaken here for one reason and possibly mistaken for another. First, I strongly believe that the priority of the Constitution over federal statutes follows from the meaning of the term “Constitution” when the Constitution was enacted. Part of what a written constitution meant was a fundamental law that took priority over ordinary federal statutes. (It is worth noting that Chief Justice Marshall placed significant reliance on this argument in Marbury.) Thus, it is not optional for the courts to treat the Constitution as taking priority over federal statutes.
Second, there is a reasonable argument (also mentioned by Marshall) that the Supremacy Clause’s language indicates the superiority of the Constitution in another way. The Clause says that “the Laws of the United States which shall be made in pursuance [of the Constitution]” are supreme. This might be thought to say that only constitutional federal statutes are supreme and therefore imply that unconstitutional federal statutes are not binding.
This argument, however, involves significant complications. First, the language here is ambiguous. It might mean, as I have said, that only federal statutes that conform to the Constitution are binding. But it might also mean simply that laws passed under the United States Constitution (“made in pursuance of” the Constitution) are binding (as opposed to laws passed previously under the Articles of Confederation).
Second, the interpretation that views the “made in pursuance” language as requiring that the statute conform to the Constitution may create other problems. If the “made in pursuance” language implies the supremacy of the Constitution, then what about treaties? The Supremacy Clause states that only treaties “which shall be made, under the authority of the United States” are supreme law. Since the Constitution does not say “made in pursuance of the Constitution” for treaties, that might seem to mean that treaties need not conform to the Constitution.
The response often given to this argument about treaties is that “the made in pursuance” language was intended to refer to statutes passed under the Constitution (beginning in 1789). By contrast, the “made under the authority of the United States” language was intended to refer to treaties made both under the prior regime (beginning in 1776) and under the Constitution. Thus, under this response, “the made in pursuance” language has little to say about the priority of the Constitution. It was really just about identifying statutes passed under the Constitution.
I think there is much to this last argument. And since I believe that the term “Constitution” itself implies the priority of the Constitution, I don’t think the made in pursuance language is necessary for judicial review of federal statutes. But the fact that various people at the time of the Framing made the argument that “the made in pursuance” language was intended to imply the priority of the Constitution gives me pause. Sai Prakash and John Yoo write in this article at footnote 76:
During the ratification, various Federalists urged that “in pursuance” of the Constitution meant not just conformity with bicameralism and presentment, but otherwise consistent with the entire Constitution. Only such latter statutes were entitled to be treated as supreme over contrary state law. See, for example, Jensen, ed, 2 Documentary History of the Ratification at 517 (cited in note 59) (James Wilson commenting that “in pursuance” meant that a law was otherwise constitutional). Earlier, Wilson had claimed that Congress could not pass any laws restricting the press because such laws would not be in “pursuance” of the Constitution. Id at 455. See also Jonathan Elliot, ed, 4 The Debates in the Several State Conventions on the Adoption of the Federal Constitution 188 (2d ed 1836) (Governor Johnston of North Carolina commenting that every law consistent with the Constitution is “made in Pursuance” of it; those laws inconsistent are not made in Pursuance of it); id at 182 (William Davie commenting to the same effect); id at 28, 178–79 (James Iredell commenting to the same effect); Federalist 33 (Hamilton), in The Federalist 203, 207 (Wesleyan 1961) (Jacob E. Cooke, ed) (claiming that laws that are not pursuant to the Constitution, but instead invade state power, are acts of usurpation).
If we give credence to the interpretation of these founders, how do we address the unconstitutionality of treaties? One argument (which I believe Mike Ramsey makes) is that the “under the authority of the United States” language, which refers to treaties, both refers to treaties made since 1776 and also references only treaties that are constitutional. If a treaty had an unconstitutional provision, that provision could not be “under the authority of the United States” because unconstitutional provisions do not have authority and therefore are not “under the authority of the United States.” If one accepts the interpretation of the “made in pursuance” language offered by the founders above, then then this interpretation of “under the authority of the United States” language may be the best one.
However one resolves this last issue, I do believe that it is clear that the Constitution takes priority over federal statutes. Therefore, a key aspect of Mitchell’s argument (and of the argument of many progressives who doubted judicial review of federal statutes) is mistaken.