105 Geo. L.J. Online 1 (2016)

handle is hein.journals/gljon9105 and id is 1 raw text is: 





Practice and Precedent in Historical Gloss Games

JOSEPH  BLOCHER   AND  MARGARET H.   LEMOS


    Historical practices can help define  the separation of powers.  One
branch's claim  of authority and another branch's acquiescence  can put a
gloss on the sparse text of Articles I-III, especially when repeated over
time. For example,  Justice Frankfurter's opinion in Youngstown  Sheet &
Tube  Co. v. Sawyer-the   opinion that coined the term gloss-turned  on
whether  Congress  had acquiesced  in the President's asserted practice of
seizing private property during the course of armed conflict.'
    In these gloss  games  there are  always  at least two players: the
branch  that is claiming authority and the branch that is ceding it. Most
prior scholarship in this area focuses on contests between the legislative
and executive branches.2 Officials in these branches can assert authority in
various ways  and when  the same actions are repeated over time, they may
coalesce into a form of historical practice. Members of Congress can issue
statements, propose  new   laws, create and  structure agencies,  confirm
nominees  for federal office, vote for or against legislation, and so on. The
President can make  appointments, issue executive orders, veto legislation,
direct troops, and  the like. These actions  are not compelled  by  other
sources of law and may  vary significantly from one actor (or set of actors)
to the next. The potential for variation is what gives weight to practices
that are  systematic, unbroken,  and  unchallenged   by the  competing
branch.3
    In Historical  Gloss, Constitutional  Conventions,  and  the Judicial
Separation ofPowers,  Professors Curtis Bradley and Neil Siegel challenge


     Professor of Law, Duke Law School.
     ** Robert G. Seaks LL.B. '34 Professor of Law, Duke Law School. Thanks to Curt
Bradley, Neil Siegel, and participants in the Historical Practice and Federal Judicial
Power Roundtable held at Duke Law School in October 2015.
    1. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 610 (1952) (Frankfurter,
J., concurring) (It is an inadmissibly narrow conception of American constitutional law
to confine it to the words of the Constitution and to disregard the gloss which life has
written upon them.); see also id. at 610-11 ([A] systematic, unbroken, executive
practice, long pursued to the knowledge of the Congress and never before questioned,
engaged in by Presidents who have also sworn to uphold the Constitution, making as it
were such exercise of power part of the structure of our government, may be treated as a
gloss on 'executive Power' vested in the President by  1 of Art. II.).
    2. See, e.g., Curtis A. Bradley & Neil S. Siegel, After Recess: Historical Practice,
Textual Ambiguity, and Constitutional Adverse Possession, 2014 SUP. CT. REV. 1 (2015);
Curtis A. Bradley & Trevor W. Morrison, Historical Gloss and the Separation ofPowers,
126 HAR. L. REv. 411 (2012).
    3. Youngstown, 343 U.S. at 610 (Frankfurter, J., concurring).

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