Kissinger's Nobel Peace Prize [skip if bored by topic]

Mark Tushnet mtushnet at
Wed Oct 28 17:32:35 PDT 2009

Thanks for this.  (I'd bet you could get somewhere on the "where does the OGE get off creating an exemption from the criminal law" question by working on the meaning of the word "accept" in the illegal gratuity statute, and maybe invoking Chevron.)  A couple of points, not responsive to this post but...:  (1)  My earlier statement about four data points may be mistaken.  A letter from three members of Congress asserts that TR placed his award in a trust administered by, among others, the Chief Justice, to be disbursed when he left office, and that TR said he would seek congressional permission.  I haven't had the time to track down the accuracy of that assertion, and it's phrased a little peculiarly (the letter says that TR said he'd seek permission, but not that he actually got it, or even that he actually sought it), which suggests that the letter writers picked up the assertion from some not-necessarily-authoritative source.  But if true we're down to three data points and, of course, no "unbroken" executive practice.

(2)  On the relevance of practice to constitutional interpretation, there's Justice Rehnquist's position in Dames & Moore:  "As Justice Frankfurter pointed out in Youngstown, 343 U.S. at 610-611,
'a systematic, unbroken, executive practice, long pursued to the knowledge of the Congress and never before questioned . . . may be treated as a gloss on "Executive Power" vested in the President by § 1 of Art. II.'  Past practice does not, by itself, create power, but 'long-continued practice, known to and acquiesced in by Congress, would raise a presumption that the [action] had been [taken] in pursuance of its consent. . . .'  United States v. Midwest Oil Co., 236 U.S. 459, 474 (1915)."  There's probably something worth writing -- maybe it's been done -- theorizing when and to what extent past practice should play a role in constitutional interpretation.  With the caution that these suggestions may result from "motivated reasoning," two thoughts:  (a)  Frankfurter may be on to something in referring to "executive practice."  Maybe such practice should be given more weight than local-level practices as in the patronage example (although there's been patronage on the federal level, it's progressively narrowed since the Pendleton Act in the late nineteenth century).  [I don't think this is motivated reasoning, because I've made a similar suggestion in some of my writing on popular constitutionalism.]  (b)  Drawing on ideas floating around in the literature on stare decisis:  Maybe practice should play a smaller role when what we might call the surrounding legal environment has changed substantially.  That almost surely played a role in Times v. Sullivan, read against the background of the cases on criminal liability for seditious speech, and probably makes sense of the rejection of practice in the patronage cases.  But these are quite tentative, and I wouldn't want to be held to them.

(3)  The "no permission needed" position and the "permission already granted" position do have different implications:  On the latter the president couldn't direct that the award money go to a charity of his choice except on a very strong (and I think implausible) account of the unitary executive that somehow gets around "No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law."

(4)  I'd guess -- hope? -- that OLC is preparing a memo on the question, although the "motivated reasoning" point arises here as well.  When I read the Dellinger memo, it didn't seem to me helpful because it came down to saying that the government can act through an agent, that not all subordinate entities within a government are agents or always act as agents, and that the issue dividing us here was whether the committee that awarded the prize was (in these terms) an agent acting as such -- a question on which the memo sheds no light.  (There's also the peculiar factlet that the power to make the award was originally assigned to the Norwegian Parliament when Norway was a self-governing province of Sweden and the assignment was made precisely to make the award come from an entity independent of the Swedish government.  Within a few years Norway became independent, though, and this factlet almost certainly can't have any bearing on the present issue.  I had thought that TR got his prize after Norwegian independence, but one thing I read indicated otherwise.)

Mark Tushnet
William Nelson Cromwell Professor of Law
Harvard Law School
Areeda 223
Cambridge, MA  02138

ph:  617-496-4451 (office); 202-374-9571 (mobile)

-----Original Message-----
From: conlawprof-bounces at on behalf of Nelson Lund
Sent: Wed 10/28/2009 6:37 PM
To: Volokh, Eugene
Cc: 'conlawprof at'
Subject: Re: RE: Kissinger's Nobel Peace Prize [skip if bored by topic]
Here's some analysis, from Michael Stern's Point of Order, that I haven't seen elsewhere.

Nelson Lund
George Mason

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