Lawson's awesone (also wrong, some).

• Author: Paulsen, Michael Stokes
• Position: Professor Gary Lawson; stare decisis

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). Only the Rules of Decision Act escapes the sweep of Lawson's sweepingly narrow view of the Sweeping Clause, but only because Lawson thinks it "an exhortation rather than a regulation," being merely "declaratory" of what the Constitution requires in any event. (12) Thus it is that I have betrayed true principles of originalist constitutional interpretation and fallen into the abyss of mere sound doctrinal exposition, by saying that Congress can abrogate stare decisis: "Professor Paulsen has history, practice, and doctrine on his side. Indeed, he has everything except the Constitution." (13)

As usual, Professor Lawson's writing is brimming with brilliant insights. I suppose I should be satisfied with Lawson's conclusion that the legal world can reject my position that Congress may abrogate stare decisis by statute only by repudiating so much else it holds dear, and just leave it at that. With enemies like Lawson, who needs friends?

But I'm greedy. I want more: I want the originalist-purists, too. And I think I should be able to get them, because this time I've got Lawson dead to rights: His two key concessions--first, the nuclear alternatives of impeachment and nonexecution as constitutionally legitimate checks on the courts; and second, the legitimacy (or at least harmlessness) of the Rules of Decision Act as a statute declaratory of what should be understood as the proper constitutional rule in any event--give away the whole ballgame.

1. THE IMPEACHMENT AND NONEXECUTION CONCESSIONS

   I wish Lawson had said more about his wildly provocative, but eminently defensible, twin points that Congress may impeach federal judges for disregarding the Constitution in favor of erroneous judicial precedents, and that the President may disregard judicial decisions that reflect such disregard, at least in fairly clear cases. But I will leave these points to the provocateur, for present purposes. (14)

   My point here is less sweeping (so to...