Constitutional Originalism: Needed Now More Than Ever

A debate has brewed over the fragile balance of the Supreme Court since the passing of Justice Antonin Scalia last February. Scalia was perhaps the most influential force for “constitutional originalism” of the past century, and the recent presidential election, which will likely influence the Supreme Court’s makeup for decades to come, has brought the clamor over judicial appointments to a crescendo. While pundits and the media speculate on the future balance of the Court and the impact of a Trump presidency on abortion access and marriage equality, a subtler question looms concerning the nature of executive, as opposed to judicial, constitutional interpretation.

Putting aside for a moment the question of Supreme Court nominations, I assert that it is categorically better to have a constitutional originalist in the Oval Office, as well as the judiciary, and that the engorgement of executive authority under the Obama administration set a dangerous standard which progressives will likely come to regret over the next four years.

Let me distinguish between two of the methods by which one can interpret America’s most important founding document. “Strict constructionism” takes perhaps the simplest approach: the literal meaning of the words in a law or the Constitution should be the sole factor in discerning their meaning. This method, however, is overly rigid, and for that reason Justice Scalia deviated from strict constructionism in favor of “constitutional originalism.”

His preference for “original meaning,” however, should not be confused with “original intent,” which is a more judicially activist interpretive method whereby the reader looks not at what the text of a law originally meant, but rather what Congress intended the law to mean – even if that supposed intention differs from the meaning of the text itself. Original intent was the distorted logic that brought us King v. Burwell, the Affordable Care Act case in which the Court ruled that although the text of the law stated that health-care tax credits should be made available only through an “exchange established by the state,” Congress had actually intended it to mean an “exchange established by the state or the federal government.” This was, in the words of Scalia’s dissent, “interpretive jiggery-pokery.” The original-intent method proceeds on, and fosters the idea that the meaning of a law should evolve as unanticipated circumstances emerge over time, thus contributing to the progressives’ favored notion of a “living constitution.”

In considering the courts, the importance of interpretive theory is self-evident, but it also affects the actions of the executive branch. There was a time when, to quote Alexander Hamilton’s Federalist No. 78, the interpretation of the laws was “the proper and peculiar province” of the courts. Sadly, that time has passed.

When confronted with denunciations of abuses of executive authority, defenders of President Obama’s legacy will often point to the fact that he has issued fewer executive orders than George W. Bush. That is correct, but misleading. The executive pen on the president’s desk has not sat idle for these past eight years. It has been hard at work signing executive memoranda, as opposed to executive orders. Unlike executive orders, executive memoranda are not formally numbered or tracked, but they achieve the same purpose: to direct federal agencies to take a specific action. By all accounts, President Obama holds the record for the most frequent use of this troubling executive power.

The relevance of judicial theory to the presidency results especially from the practice of executive rulemaking, or the expansion (or reduction) of a law’s scope. Congress delegates substantially to the executive branch in regard to the actual writing of the rules, regulations, memoranda, and bulletins that determine how laws are executed. In many ways, executive interpretations of laws have a more direct impact on Americans’ lives than interpretations by courts because they can occur without judicial review, which is slow yet more transparent to the interested public. Executive rulemaking is only constitutionally prudent, or respectful of the Constitution’s spirit, when the president respects the original textual meaning of the law Congress made. Accordingly, when executive rulemaking follows a living-constitution approach – in which a text is open to reinterpretation “as needed” – the separation of powers between the branches of government is seriously compromised, because such changes are supposed to result only from congressional lawmaking.

Executive lawmaking is by no means new, but it has significantly increased in scope under the Obama administration. The Environmental Protection Agency (EPA) is perhaps the worst offender. Its authority to regulate greenhouse gas emissions, for example, stems from a 2011 reinterpretation of the Clean Air Act and the later Clean Air Act amendments. Although narrowly approved in part by the Supreme Court in 2014, the EPA’s reinterpretation of the law was so egregious that, by its own admission, it would have rendered portions of the Act “unrecognizable” to the Congress that passed it in 1970. Scalia called the executive branch’s legislative reinterpretation a blatant attempt to “just rewrite the statute.” In a more recent and ongoing development, the Obama administration has structured adherence to this year’s Paris climate agreement around executive directives to the EPA as opposed to Senate consent. With Trump’s hot-off-the-press appointment of Myron Ebell, a noted climate-change skeptic, to lead Trump’s EPA executive transition team, Obama’s executive memorandums to the EPA will likely be off the books before winter’s end.

The Obama administration did not limit its rulemaking overreach to carbon emissions. “Navigable waters” are another area of federal oversight that has been greatly expanded by executive overreach. The Clean Water Act of 1972 gave the EPA the authority to regulate the discharge of pollutants into “navigable waters” and rivers, streams, and other bodies that flow into them. The source of federal jurisdiction over such bodies of water is the Constitution’s interstate commerce clause, under the sound logic that navigable waterways can be used to transport goods from one state to another and should therefore be subject to federal oversight. Since the passage of the Clean Water Act, however, the EPA and presidential memoranda have gradually ignored court action, expanding the law’s reach to include runoff, seasonal ponds, trickling brooks, and practically any other water source that shares a watershed with a navigable waterway. Its original meaning has therefore gone down the drain. Attempts by the EPA to regulate private bodies of water with no significant navigability abound, affecting everything from suburban koi fish ponds to man-made swimming holes.

Regardless of one’s views on pollutant discharges or koi ponds, the appropriate authority for the expansion of laws like the Clean Water Act lies with Congress, not the executive. The ability of the EPA to dictate state-level environmental affairs via executive fiat during the Obama presidency may have been a boon for environmentalists. But under the Trump presidency, such a precedent for other federal agencies will, if used, have a significantly regressive impact on some progressive initiatives.   

Thus, no matter how judicially originalist or activist the balance of the Supreme Court may tip in the coming months and years, it is better to have a constitutional originalist than a living constitutionalist in the Oval Office. Unfortunately, Donald Trump falls into the latter camp. In the coming years, progressives will be in the unfamiliar, and somewhat ironic, position of having to advocate for executive and judicial restraint in the areas of marriage equality, deferred immigration enforcement (DACA), and universal health care–ironic because these hallmark achievements of the Obama administration have all been assisted by judicial activism and executive overreach.

If there is a lesson to be taken from Trump’s victory on Tuesday, it is this: what one executive can do, another can undo. If you want real, lasting change, then act through the legislative branch (Congress). If you fear the short-term implications of authoritarian demagogy, then limit executive power via constitutional originalism. If Trump’s victory has left you in a state of despair, then take a step back to consider. There is little he can do domestically that will last beyond his presidency without the consent of Congress, and Congress remains the epitome of change-averse, establishment-oriented politics. The shakeup that Trump’s populist movement yearns for will probably be more subtle than seismic.

Due to Trump’s apparent lack of self-control, however, there is still cause for significant concern in the area of international affairs -- despite the potential for the courts, through constitutional originalism, to restrain executive power to declare war and make treaties. We do live in an era when 140 characters tweeted out at 3 a.m. may be enough to start a trade war.

Free Trade, Trump-Style

The concept of international free trade has taken a bit of a beating lately: trade deficits and jobs outsourcing have been favorite targets of Donald Trump’s frequent and disjointed lambasting, and Hillary Clinton, once an outspoken proponent of increasing international economic cooperation, can now be found backpedaling on her previous commendable support for the North American Free Trade Agreement (NAFTA) and the Trans-Pacific Partnership (TPP).

While Clinton’s recent concessions to the trade isolationism movement can be characterized as an unenthusiastic move to appease former supporters of Senator Bernie Sanders and attract current Trump supporters, the Republican nominee has long made regressive trade rhetoric a cornerstone of his campaign. Although it can be easy to become bogged down in the weeds of Chinese currency manipulation, the Mexican Value Added Tax, NAFTA, and the TPP, three important yet often ignored questions lie below the current web of rhetoric: what is free trade, is modern international trade more or less free than it was in the past, and can trade policy really bring back U.S. manufacturing jobs?

The concept of free trade is much like that of free-market capitalism: simple in principle and grossly complex in practice. The World Trade Organization governs and encourages free trade among the United States and 153 other member states, but the U.S. is also a signatory to dozens of individual free trade agreements, such as NAFTA, the Dominican Republic-Central America Free Trade Agreement (CAFTA-DR), and the Israel Free Trade Agreement, which are administered here by the Office of the U.S. Trade Representative. The goal of all of these organizations is, in theory, to reduce barriers to international commerce.

These barriers can include import quotas (which affect U.S. imports ranging from brooms to olives to cotton), subsidies (farm subsidies have always been big, especially for corn and cotton in America), embargoes (for the U.S., this means limited or no trade with Cuba, Iran, and North Korea), and currency devaluation (China is famous for it, but the U.S. Treasury Department has also called out Japan, South Korea, and Germany in the past).

Free trade is an elusive concept which is best considered in terms of degrees: the 2014 World Economic Forum’s Enabling Trade Index rates the world’s most free-trade oriented economy, Singapore, with a score of only 84 percent of all the free-trade indicators a nation can have. The fifteenth-place U.S. slots near Canada, Denmark, Austria, and the United Arab Emirates with a score of 71 percent. China and Mexico, Trump’s preferred targets, rest in the middle of the pack at 54th place (61 percent) and 61st place (59 percent) respectively. So while no nation engages in completely free trade, some do put up fewer trade barriers than others.  

Trump’s grandstanding on “Making America Great Again” in regard to free trade implies that international trade was actually much a freer endeavor at one time, and that the current state of the American economy is a result of the United States entering disadvantageous trade deals and allowing foreign nations to take advantage of American negotiators’ incompetence and naivety. During the first presidential debate, Trump went so far as to charge that “[NAFTA] is the single worst trade deal ever approved in this country … the worst trade deal maybe ever signed anywhere.” Fact checkers unsurprisingly took issue with this characterization, as most economists view NAFTA as neutral in the area of job creation and outsourcing. But Trump seems to be asserting that free trade was once rampant in the international economy, and that recent interference by trade agreements like NAFTA has led to the dissolution of the international free market, to the detriment of the U.S. economy.

This is hardly the case – in fact, American trade barriers are lower now than during any other decade in American history. During the golden age of post-war American manufacturing (presumably Trump’s “Great Again” period), average U.S. tariffs stood at between five and ten percent as a ratio of customs revenue divided by import value, compared with 1 to 2 percent for the prior two decades. Looking back to the height of the American industrial revolution, tariffs almost never averaged below 20 percent and sometimes exceeded 40 percent. So while it’s true that the U.S. currently engages in “freer” international trade than China or Mexico, the glory years were far from an exemplar of an unshackled international free market.

Regardless of whether trade was once freer, Trump’s “Plan to Rebuild the American Economy by Fighting for Free Trade” misses the mark when it comes to the kind of manufacturing job creation that he yearns for. The simple fact is that only significant government intervention to discourage free trade will result in the return of manufacturing jobs to the United States. While it should not require explaining to a supposed free-market capitalist like Trump, free trade and comparative economic advantage will always encourage the movement of jobs to markets with favorable labor-cost to labor-output ratios, as is the case for the manufacturing fields of major U.S. trading partners like Mexico and China. Fortunately, U.S. market forces and international pressure for higher living standards and better working conditions will continue to drive up the cost of labor abroad. However, the U.S. will not be competitive in the realm of manufacturing until U.S. labor costs – and living standards – no longer greatly exceed those of our trading partners.

Reality simply does not conform to Trump’s vision for the American economy in a world of free trade. It’s a classic case of what economists call the triangle of triple constraint: copious domestic manufacturing jobs, a comparatively high living standard, and minimal trade barriers – you can only have two, and must choose which.