Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Tomorrow the Trump du jour will be whether the President might pardon his aides, his family members, or even himself. I want to make one observation about this; a quote from the Supreme Court's 1915 opinion in Burdick v. United States, which addressed the pardon power:
"This brings us to the differences between legislative immunity and a pardon. They are substantial. The latter carries an imputation of guilt; acceptance a confession of it. The former has no such imputation or confession."
Gerald Ford, the story goes, would carry this quote in his pocket and pull it out as a justification when he was asked about why he pardoned Richard Nixon.
My wife and I have co-authored a book, directed primarily at 10-18 year olds, titled Fault Lines in the Constitution: The Framers, Their Fights, and the Flaws that Affect Us Today. It focuses very much on structural features of the Constitution, though rights appear in the context of chapters on habeas corpus and the broader problem of emergency powers. The book will be published on September 1 by Peachtreec Publishers. Cynthia and I will talk about the book at the National Book Festival in Washington on September 2.
One of the central issues raised by the book, both explicitly and implicitly, involves civic education. What should youngsters be learning about the Constitution? Readers of Balkinization will not be surprised to learn that we believe that students need to learn far more about the structural aspects of the Constitution and, of course, to learn how crucial these aspects are. My own hope is that student readers will ultimately argue as vigorously with one another about the presidential veto power or the allocation of voting power in the Senate as they do about the implications of the rights provisions of the Constitution.The general topic of civic education will be the topic of a major conference at the University of Texas on February 16-17. I am organizing a panel on constitutional law casebooks and their implicit pedagogicalthursts with an all-star cast of casebook editors. There will also be a panel specifically on Fault Lines. But most of the panels are being organized by my daughter Meira Levinson, who teaches at the Harvard Graduate School of Education and has written extensively on civic education; they will address some of the general problem of civic education in contentious societies and times like our own. As we get close to the time, I will certainly set out the complete program.
As part of our efforts to promote the book, we are posting columns on a blog site every couple of weeks of so, The most recent discusses the shooting at the Republican practice for the congressional baseball game several weeks ago and the potential implications had it turned into a genuine massacre of dozens of senators or representatives. The Constitution is quite terrible with regard to "continuity in government," something we are all too confident is rarely brought up in those few civics courses that continue to be taught. Indeed, it is interesting to note the consequences even of John McCain's illness, for his inability to vote would have doomed the bill with the loss of two Republican votes, given that the vote would then have been 50-49, whereas if McCain had been there, and voted yes to proceed with the debate, then the vote would have been 50-50, with Pence being able to break the tie.
The Definition of "Emolument" in English Language and Legal Dictionaries, 1523-1806
I have posted a new paper to SSRN on the historical meaning of "emolument." It expands on some remarks I gave at a conference on Historical Semantics and Legal Interpretation at the University of Chicago, organized by Alison LaCroix and Jason Merchant. The abstract of the paper is given below, followed by several tables and figures that summarize the paper’s main findings. Scroll down to see for yourself why the Trump Justice Department’s narrow definition of “emolument” in CREW v. Trump cannot withstand scrutiny.
In its motion to dismiss in CREW et al. v. Trump, the Department of Justice (DOJ) defines the word “emolument” as “profit arising from office or employ.” DOJ claims that this “original understanding” of “emolument” is both grounded in “contemporaneous dictionary definitions” and justifies an “office-and-employment-specific construction” of that term. On this basis, it argues that the Emoluments Clauses of the Constitution “do not prohibit any company in which the President has any financial interest from doing business with any foreign, federal, or state instrumentality.”
Unfortunately, DOJ’s historical definition of “emolument” is inaccurate, unrepresentative, and misleading. Particularly because the government may seek to utilize its flawed definition in subsequent court filings, this Article seeks to correct the historical record. It does so based on a comprehensive study of how “emolument” is defined in English language dictionaries published from 1604 to 1806, as well as in common law dictionaries published between 1523 and 1792.
Among other things, the Article demonstrates that every English dictionary definition of “emolument” from 1604 to 1806 relies on one or more of the elements of the broad definition DOJ rejects in its brief: “profit,” “advantage,” “gain,” or “benefit.” Furthermore, over 92% of these dictionaries define “emolument” exclusively in these terms, with no reference to “office” or “employment.” By contrast, DOJ’s preferred definition — “profit arising from office or employ” — appears in less than 8% of these dictionaries. Moreover, even these outlier dictionaries always include “gain, or advantage” in their definitions, a fact obscured by DOJ’s selective quotation of only one part of its favored definition from Barclay (1774). The impression DOJ creates in its brief by contrasting four historical definitions of “emolument” — two broad and two narrow — is, therefore, highly misleading.
The suggestion that “emolument” was a legal term of art at the founding, with a sharply circumscribed “office-and-employment-specific” meaning, is also inconsistent with the historical record. A vast quantity of evidence already available in the public domain suggests that the founding generation used the word “emolument” in broad variety of contexts, including private commercial transactions. This Article adds to that emerging historical consensus by documenting that none of the most significant common law dictionaries published from 1523 to 1792 even includes “emolument” in its list of defined terms. In fact, this term is mainly used in these legal dictionaries to define other, less familiar words and concepts. These findings reinforce the conclusion that “emolument” was not a term of art at the founding with a highly restricted meaning.
Finally, the Article calls attention to the fact that the government’s dictionary-based argument is flawed in another, more fundamental respect. Little or no evidence indicates that the two historical dictionaries — Barclay (1774) and Trusler (1766) — on which DOJ relies in its brief to defend its “office-and-employment-specific” definition of “emolument” were owned, possessed, or used by the founders, let alone had any impact on them or on the American people who debated and ratified the Constitution. For example, neither of these dictionaries is mentioned in the more than 178,000 searchable documents in the Founders Online database, which makes publicly available the papers of the six most prominent founders. Nor do these volumes appear in other pertinent databases, such as the Journals of the Continental Congress, Letters of Delegates to Congress, Farrand’s Records, Elliot’s Debates, or the Documentary History of the Ratification of the Constitution. By contrast, all of the dictionaries that the founding generation did possess and use regularly — e.g., Johnson, Bailey, Dyche & Pardon, Ash, and Entick — define “emolument” in the broad manner favoring the plaintiffs: “profit,” “gain,” “advantage,” or “benefit.”
To document its primary claims, the Article includes over 100 original images of English language and legal dictionaries from 1523 to 1806, as well as complete transcripts and easy-to-read tables of the definitions contained therein. A second study is currently underway of dictionaries from 1806 to the present, which seeks to determine how and why definitions of “emolument” may have changed over time. Collectively, these inquiries are designed to accomplish more than simply aiding judges and holding lawyers’ feet to the fire in the emoluments cases now pending in three federal courts. They also provide a basis for educating members of Congress, government officials, journalists, and the broader public about the historical meaning of this important yet obscure constitutional term.
It’s Time to Constitutionalize Opposition to the Planned Parenthood Exclusion, aka "Defunding"
It looks like the current version of the Republican healthcare bill is a dead letter, but Repubs are saying a new version is due out today that will “appease both sides” of their party’s divide. here.
We’ll see about that. Maybe they’ll add back in coverage for preexisting conditions, reduce by a million or two the number of people who will lose health care. We’ll find out. What I doubt will change is the way the bill guts health care provided for women. First, they will undoubtedly mess with the preventive services package, gutting the required coverage for contraception or creating a refusal clause you could drive a truck through. Think women shouldn’t have sex unless they would welcome a pregnancy? No problem. Sign here. How about prenatal and delivery services for those women who get pregnant? Is “maternity” care still on the chopping block? We’ll see.
One thing you can be sure of though is that the new version of the healthcare bill will “defund” Planned Parenthood. The Republicans claim they are “defunding” Planned Parenthood because they don’t want to support Planned Parenthood’s abortion care. Of course, the federal government doesn’t fund abortions, or even Planned Parenthood in any case. They cover non-abortion services for women on insurance programs like Medicaid and in block grants like Title X, and Planned Parenthood is an eligible provider of preventive services. In fact, Planned Parenthood is one of the best providers around of prenatal care, preventive health services, cancer screenings, vaccines, and primary care for kids. In many areas of the country, it’s the only provider of those services. Blah Blah Blah.
You’ve heard it all before – at least I hope you have. The main message we hear is that Planned Parenthood is great health care, vital for many women in the country. Your daughter, sister, wife, mother, cousin have probably gone there if you haven’t gone yourself. There are not six degrees of separation from you and Planned Parenthood. You are closer to PP than you are to Kevin Bacon that’s for sure. It’s a great message; I have nothing against it; it’s true; it probably tests well in focus groups, etc.
But one thing you don’t hear about is that making Planned Parenthood or any otherwise eligible medical provider ineligible to provide covered health care services in a federal program because they provide constitutionally-protected abortions using their own non-government funds is, you guessed it, unconstitutional.
I don’t mean that I think it is unconstitutional or that current case law should be interpreted as saying it is unconstitutional. No. The claim that defunding Planned Parenthood is unconstitutional is far from off-the-wall, because the Supreme Court has already said that it is unconstitutional. In 1986, the Supreme Court summarily affirmed a Court of Appeals decision that held unconstitutional an Arizona law that “defunded” Planned Parenthood because it provided abortions with its own private funds. Babbitt v. Planned Parenthood of Cent. & N. Ariz., 479 U.S. 925 (1986), aff’g mem., 789 F.2d 1348, 1350 (9th Cir. 1986). In Babbitt, the Supreme Court held that a state cannot withhold family planning funds from an organization that uses its own non-state funds to perform abortions.
Linda Greenhouse's op-ed in today's New York Times essentially accuses Justice Gorsuch of being a gunner. A gunner, for those who don't know, is a derogatory term for a first-year law student who acts like a know-it-all and talks nonstop in class.
Is this a fair characterization? Sort of. I think Greenhouse is being too harsh when she calls Justice Gorsuch the President's judicial "avatar." (Though that may have been a title selected by the editor rather than by her.) And I think we can cut Gorsuch some slack--he's new on the job. Even the most experienced judges find that learning the highways and byways of the Supreme Court takes a few years. Still, so far I do find the new Justice's prose rather grating.
Here is a small example. In his dissent in Pavan v. Smith, Justice Gorsuch says twice that the Court's summary reversal of the Arkansas Supreme Court was inappropriate because the state court reached its decision in good faith. Early on he says that the opinion below "did not in any way seek to defy but rather earnestly engage Obergefell." Then at the end he says that the Arkansas Supreme Court should not reversed summarily "for seeking faithfully to apply, not evade, this Court's mandates."
With respect, these statements are preposterous. Justice Gorsuch has no idea if the Arkansas Supreme Court was "earnestly" or "faithfully" trying to apply Obergefell. What I assume he meant was that the Supreme Court should presume earnestness or faithfulness and thus not use summary reversal as the method of review of a lower court judgment. These, though, are two very different concepts.
Furthermore, a little digging shows that the trial judge in Pavan, who was reversed by the Arkansas Supreme Court, was not so confident in the earnestness and faithfulness of those Justices and said as much. The State Supreme Court then admonished him in their opinion for criticizing them.
My point is that Gorsuch's conclusion was reasonable in saying the case did not warrant summary reversal and should be full briefed and argued. His way of explaining that--pretty imprecise.
According to Paul Booth in the American Prospect, "The Republican power stranglehold is tightening. The Supreme Court is theirs, for a generation." This displays a lack of political imagination. Suppose Democrats regain control of the Presidency and Congress after the 2020 elections. (Bear with me on that assumption.) One item on their legislative agenda might be expanding the Supreme Court to eleven (or more). It's worth having a discussion about whether that's a good idea. I simply note two arguments about this suggestion I've heard that aren't good ones. (1) "Don't give the Republicans any ideas while they still control Congress and the Presidency." They already know about the strategy of manipulating court size for political reasons -- they tried it in North Carolina. It didn't work (or hasn't worked yet), but saying that legislation can change the size of appellate courts isn't telling Republicans anything they don't know. (2) "That would set off a cycle of tit-for-tat retaliation once Republicans are in a position to expand the Court's size, as they inevitably will be." I have an article forthcoming in the Pepperdine Law Review explaining why this game-theoretical claim probably isn't a good one (in condensed form: this isn't an iterated game with the same players interacting over time; and succeeding episodes in which court-expansion might become an issue aren't necessarily part of the game that I'm suggesting might be played in 2021). A good argument would be that trying to expand the Court's size would produce a bloody political battle in which Democratic success is hardly assured, and both success and failure are likely to impose real political costs on Democrats who propose expanding the Court's size. Maybe -- but (also maybe) the argument that they stole Merrick Garland's seat and all we're doing is undoing that theft would be politically effective. [The Pepperdine article's tentative title is "Constitutional Conventions," and it's obviously of a piece with my earlier article on "Constitutional Hardball."]
Complicity: Internal and External View, or, "Well, Mussolini Made the Trains Run on Time"
This is a very tentative stab at elaborating some thoughts that have been rattling around in my mind for a while. The occasion for the attempt is Charles Blow's column in the Times, in which he writes, "Everything that springs from [Trump], every person who supports him, every staffer who shields him, every legislator who defends him, is an offense. Every partisan who uses him — against all he or she has ever claimed to champion — to advance a political agenda and, in so doing, places party over country, is an offense."
One of the things that has sprung from Trump is Neil Gorsuch, whose appointment he claims as one of his (few) achievements so far. Many on the right who purport to oppose Trump-ism generally apparently approve of Gorsuch's appointment. I've thought for a while (and noted it on Facebook) that this struck me as resembling the nominal opponents of Mussolini who are said to said, "Well at least he made the trains run on time." (Apparently he didn't, but that's beside the point.) The phrase is used, I think, to criticize people who, though seeming to distance themselves from the parts of Mussolini's program of which they disapproved, were actually complicit in his entire program.
In Masterpiece Cakes and similar cases, religious (and other) conservatives seem to take the position that -- at least within extremely broad limits -- a person's claim that taking some action would make him her her complicit in a moral evil, has to be taken as conclusive for some constitutional or statutory purposes. (The constitutional part of that involves "hybrid" claims under Smith; the statutory part involves RFRA-type statutes that do more than re-state pre-Smith law.) The complicity claim can be overridden for compelling reasons, but not otherwise. This is what I think of as an internal complicity claim.
The Mussolini "argument" involves what I think of as an external complicity claim. The person being criticized expressly does not think of himself or herself as being complicit with Trump generally, but (not to put a fine point on it) I do. I'm pretty sure that there have to be some limits to external complicity arguments, but I'm not sure what they would be. One candidate would be something like this: Gorsuch's appointment is a happy by-product of an otherwise dreadful event. But, at least as far as I've been able to think this through, the appointment isn't an accidental by-product; it flows from the powers conferred on Trump by his election. So, to get the purported by-product you have to get the whole package.
It's also pretty clear to me that external complicity could be offset by equivalent actions rejecting the loathsome parts of the Trump program. And, in the present context, maybe the people I have in mind are doing no more than expressing approval of the Gorsuch nomination and are elsewhere offsetting that by expressing disapproval of other parts of Trump-ism. At this point in my thinking, that leads me to think that the problem of external complicity imposes an obligation to take offsetting actions -- and, in particular, overrides the usually correct view that bloggers and Facebook posters have no duty to address matters they choose not to address. That is, it is usually true that a fully adequate response to the question, "You've posted on Masterpiece Cakes; why haven't you posted on [fill in the blank]?," is "Because I didn't want to." My current view is that someone who posts approvingly about the Gorsuch nomination, including an approving post about a Gorsuch opinion (the program wants to autocorrect that to "Grouch"!), incurs a duty to offset that post with something critical of some (other) aspect of Trump-ism.
But all that might be entirely wrong. Maybe the only coherent concept of external complicity is that one can be complicit only in the substantively loathsome aspects of Trump-ism, of which the Grouch appointment is not (by assumption) one. Then I wonder about the status of arguments laying out the best legal case for the Trump travel ban, motivated by anything other than the Mill-ian desire to ensure that the ban's opponents will be in a position to counter those arguments.
The Supreme Court has held that the Constitution protects most pornography, abortion rights, and same-sex marriage. That would have astonished the framers, and it would have astonished almost all Americans 100 years ago. How did it happen?
Geoffrey Stone’s Sex and the Constitution is, for the most part, a breezy and fast read. It is packed with entertaining stories and revealing details. It chronicles a major shift in the tectonic plates of constitutional law. It is also important for a second reason: it is a remarkably clear articulation of a very common, crude view of the appropriate relation between politics and religion.
Thus begins my review of the book, just published by The New Rambler Review, here.
A growing number of scholars think “religious liberty” is a bad idea. They oppose religious persecution, but think that a specifically “religious” liberty arbitrarily privileges practices that happen to resemble Christianity and distorts perception of real injuries. Both objections are sound, but religious liberty is nonetheless appropriately regarded as a right. Law is inevitably crude. The state cannot possibly recognize each individual’s unique identity-constituting attachments. It can, at best, protect broad classes of ends that many people share. “Religion” is such a class.
No, not in any explicit form. But there's a truly dreadful paper circulating that (without citing Schmitt) structures its discussion of judges around the distinction between friends and enemies. Now, Schmitt was a really smart guy (though a Nazi), but the friend-enemy distinction that's at the heart of his account of politics is probably the most problematic idea he had (even if there is something to it). Of course all of us sometimes think about politics in friend-enemy terms, though generally, I think, as a metaphor rather than as an analytic construct. The paper seems to argue that judges should think of their colleagues as friends and enemies -- which doesn't seem to me altogether, say, desirable (nor, despite the authors' claims about descriptive accuracy, descriptively accurate either.)
[I should note that the paper's dreadfulness lies not in its use of the "friend-enemy" distinction but rather in its amateurish (in the most pejorative sense possible) "reliance" on formal philosophy. It brings to mind Martha Nussbaum's takedown of lawyers attempting to do philosophy. I could go on about the awfulness of the "philosophy" in the paper, but, frankly, doing so isn't worth my time or yours.]
The University of Chicago
Law Review has published a responseby
Charles Barzun to our articleWorking Themselves Impure: A Life
Cycle Theory of Legal Theories. We are grateful to Professor
Barzun for his thoughtful engagement with the article. We do not think he has
“misunderstood [our] central claims and motivations,” as his author’s footnote
anticipates. But we do wish to highlight a few points of agreement and
disagreement, because we think they speak to an important divide in
contemporary legal theory.
First, agreement. Barzun
characterizes our article’s descriptive claims “as plausible and probably
correct.” Given that these descriptive claims are the centerpiece of the article,
it is heartening that someone otherwise critical of our approach appears to accept
its empirical findings. Working
Themselves Impure argues that the major prescriptive public law theories of
the past forty years have evolved in a manner that undermines (or “impurifies”)
their foundational normative commitments. Through historical case studies of originalism,
textualism, popular constitutionalism, and cost-benefit analysis, the article
identifies a common pattern of theoretical change over time—a six-stage “life
cycle” that each of the theories has undergone:
The President's recent tweets made me think about Andrew Johnson's ill-fated campaign for Democrats during the midterm elections of 1866. Johnson's conduct during what was termed "the swing around the circle" was widely seen as an fiasco because he got into shouting matches with hecklers and made several wacky statements ("Why don't you hang Thad Stevens?") When some of the President's supporters told him that some of his comments were undignified, the President was heard by reporters to reply "I don't care about my dignity," which became a national headline.
Two years later, one of the articles of impeachment against President Johnson alleged that comments such as these were a high crime and misdemeanor. Article Ten stated: "Andrew Johnson, President of the United States, unmindful of the high duties of his high office and the dignity and proprieties thereof" did "make and declare, with a loud voice, certain intemperate, inflammatory, and scandalous harangues, and therein utter loud threats and bitter menaces . . . amid the cries, jeers, and laughter of the multitudes then assembled in hearing." [I love the touch about "with a loud voice."] Article Ten concluded with the following:
Which said utterances, declarations, threats and harangues, highly censurable in any, are peculiarly indecent and unbecoming in the Chief Magistrate of the United States, by means whereof the said Andrew Johnson has brought the high office of the President of the United States into contempt, ridicule and disgrace, to the great scandal of all good citizens, whereby said Andrew Johnson, President of the United States, did commit, and was then and there guilty of a high misdemeanor in office.
as I argued earlier this week, the 2001 AUMF passed by Congress cannot be read
to authorize the growing set of U.S. military actions against Syrian and
Iranian forces in Syria, does the President’s Article II power standing alone
support these strikes? The best articulated argument I’ve seen that the
President has the Article II power to attack Syrian aircraft (or Iranian drones
or any non-ISIS force in Syria) in the interest of defending U.S.-allied Syrian
government rebels goes something like this.The President surely has Article II authority to act in defense of U.S.
facilities and troops overseas without first waiting for congressional
authorization, a necessary extension of the President’s power (on which there
is near uniform agreement) to “repel sudden attacks.”As relevant here, this authority should be understood
to extend to the defense of certain organized third parties (whether a state
like Britain or our allied non-state Syrian Democratic Forces) operating (as
Bobby Chesney puts it) “in close coordination with the U.S. military in a
combat setting.”In such a situation, I
take the idea to be, our interests are closely enough aligned and our military
forces closely enough entangled, that an attack (or threatened attack) on a
third party ally is effectively the same as an attack on us.
‘third party self-defense’ theory of the scope of Article II power is in one
sense quite a bit narrower the currently prevailing position of the Justice
Department Office of Legal Counsel – which, under President Obama, took the view that the President has constitutional authority to use military force on his
own so long as an important U.S. interest was at stake, and so long as the quantum
or nature of contemplated force didn’t actually amount to “war” within the
meaning of the Constitution’s “declare war” clause. Under this OLC view – based in part on OLC’s
assessment of post-World War II presidential practice – one need not develop
any specialized theory of third party self-defense to justify the use of
executive power here; the current President could surely assert one of several
U.S. concerns in Syria as the important interest at stake (say, protecting
the interest of regional stability), and
so long as the strikes were limited in scope and duration (i.e. less than
“war”), all of these actions could be said to fall within the scope of Article
II, whether defense of battlefield allies was among the expressly named
interests or not.
there are at least three ways in which this ‘third party defense’ notion may be
said to go beyond even the broad 2011 OLC conception of presidential power: (1)
I am not aware of any previous practice in which the President has asserted the
particular national interest of defending battlefield allies as such as a
justification for authorizing the use of force abroad. Now it is surely one of the difficulties with
the 2011 OLC opinion that it leaves so open-ended the question of what counts
as an national interest sufficiently important for the President to use force,
but if we are to take seriously the notion that past practice matters here, it
would seem important to identify some at least analogous illustration on which
to rely. (2) To the extent past examples of “important” national interests
matter, the case for using force to protect a zone in a foreign country within
which our own military might train opposition forces strikes me as vastly less
impressive than the interest in, say, ridding the world of the scourge of
chemical weapons. Indeed, the “de-confliction”
zone we are now using force to protect is just over the border
from a country (Iraq) in which we have every right (thanks to that nation’s
consent) to be operating militarily and, presumably, training anti-ISIL forces
all we like.
Above all, (3) in the 2011
Libya strike (and almost all previous post-World War II executive operations), unilateral
executive uses of force abroad were taken in
concert with UN authorities. For
reasons I alluded to briefly in my previous post, both our downing of the
Syrian jet and the recent U.S. strikes to preserve its non-state allies’ right
to operate in the “de-confliction” zone appear to be in violation of the UN Charter (a treaty we are obligated to
observe as supreme law of the land under our own Constitution’s Article VI). Whether one considers that an Article II
problem, an Article VI problem, or simply a violation of international law – the
United States’ legal position here is as precarious as it gets.
At any time, but particularly in critical times like these, it can be useful to step back and take a clear-eyed historical view of the development of law. My new book, A Realistic Theory of Law, presents law as complex of social institutions that develop in relation to surrounding factors. Chapter Five, Law in the Age of Organizations, is particularly relevant to contemporary events. Therein I distinguish three government uses of law: to maintain government power, to structure and carry out internal operations, and to pursue initiatives and achieve objectives in the social arena. These government uses, I assert, "are influenced by people occupying offices with their own interests, ideas, and objectives, as well as externally by interests seeking to control or shape the activities and objectives they carry out." Here is the Cambridge description of the book:
This book articulates an empirically grounded theory of law applicable throughout history and across different societies. Unlike natural law theory or analytical jurisprudence, which are narrow, abstract, ahistorical, and detached from society, Tamanaha's theory presents a holistic vision of law within society, evolving in connection with social, cultural, economic, political, ecological, and technological factors. He revives a largely forgotten theoretical perspective on law that runs from Montesquieu through the legal realists to the present. This book explains why the classic question 'what is law?' has never been resolved, and casts doubt on theorists' claims about necessary and universal truths about law. This book develops a theory of law as a social institution with varying forms and functions, tracing law from hunter-gatherer societies to the modern state and beyond. Tamanaha's theory accounts for social influences on law, legal influences on society, law and domination, multifunctional governmental uses of law, legal pluralism, international law, and other legal aspects largely overlooked in jurisprudence.
I have posted two connected essays on the phenomenon of constitutional rot on SSRN; the essays began as posts on this blog. Each approaches the problem of constitutional rot from a slightly different angle.
The first hundred days of Donald Trump's presidency led many commentators to ask whether the United States was in the midst of a constitutional crisis. Drawing on previous work written with Sanford Levinson, this essay explains why that is not the case. Trump's demagogic rise to power, however, suggests that a different phenomenon is at work: constitutional rot.
When politicians disregard norms of fair political competition, undermine the public's trust in government, stroke polarization, encourage mutual fear and hatred of fellow citizens, and repeatedly overreach to rig the political system in their favor, they cause the system of democratic and republican constitutionalism to decay. The decay of norms that maintain a democratic republic is the phenomenon of constitutional rot. Many claims about "constitutional crisis" during Trump’s presidency reflect a growing recognition of the constitutional rot in our nation’s political institutions.
The essay explains the differences between constitutional crisis and constitutional rot and how the two are connected. Whereas constitutional crises normally occur over brief periods of time, constitutional rot is often a long and slow process of change and debilitation, which may be the work of many hands over many years.
The election of a demagogue like Trump is evidence that our institutions have seriously decayed, and judging by his presidential campaign and his first hundred days in office, Trump promises to accelerate the corruption. The constitutional system in the United States may well be able to survive even Donald Trump’s misadventures. But Trump’s rise to power, his conduct of the presidency, and the inability (or unwillingness) of members of Congress to stop him, are signs that all is not well in American constitutional democracy. At some point, if we put too much weight on our democratic institutions, they will snap. There is currently no actual constitutional crisis in the United States. But if constitutional rot continues, we are living on borrowed time.
Constitutional rot refers to the decay of features of a constitutional system that maintain it as a healthy republic. Constitutional rot has been going on for some time in the United States, and it has generated the country's current state of dysfunctional national politics. Constitutional rot has made American politics increasingly less democratic, less republican, and more oligarchical.
The causes of constitutional rot are four interlocking phenomena, which we might call the Four Horsemen of Constitutional Rot: (1) political polarization; (2) loss of trust in government; (3) increasing economic inequality; and (4) policy disasters--important failures in decisionmaking by our representatives, such as the Vietnam War, the Iraq War and the 2008 financial crisis. Each of these four phenomena exacerbates the others. In addition, America's inadequate response to globalization has hastened constitutional rot.
As a political system becomes increasingly oligarchical, it also becomes less equal, more polarized, and generates greater distrust, both of government in general and of political opponents. People not only lose trust in government, but in other people who disagree with them. Political opponents appear less as fellow citizens devoted to the common good and more like internal threats to the nation.
When people lose faith in government, they are likely to turn to demagogues who promise to make everything right and restore former glories. The rise of Donald Trump, who has many of the traits of a traditional demagogue, is a symptom of constitutional rot, rather than its cause.
Constitutional rot not only allowed Trump to gain power; he also has incentives to increase constitutional rot to stay in power; for example, by increasing polarization, and sowing distrust and confusion. Many of his actions as president—and his media strategy—make sense from this perspective.
Moreover, Trump, like many populist demagogues before him, has maintained populist rhetoric while abandoning any serious effort at pushing for genuinely populist policies. Once populist demagogues take power, they often discard the people who helped put them there; instead, they substitute new backers who are easier to deal with and/or pay off to stay in power.
The United States still retains many structural advantages that might allow it to halt and reverse constitutional rot, including an independent judiciary, a free press, and regular elections. In fact, Trump's presidency likely represents the end of an enervated political regime, and not the necessary future of politics. Although the present situation looks bleak, the next several election cycles offer the possibility of political renewal if Americans can rise to the challenge.
Here is my piece for the New York Times today about the travel ban.
Yesterday President Trump tweeted that he was “grateful” for the Supreme Court’s unanimous opinion on his travel ban, which allowed some of it to stand pending the court’s review this fall. But he shouldn’t celebrate just yet: The decision is a loss, not a win, a distinction totally lost on our rapid-fire media.
Read carefully, the opinion makes it clear that most of the Supreme Court justices think Mr. Trump’s executive order, which restricts travel from six Muslim-majority countries, is likely to be struck down if the court hears the case in the fall, as scheduled.
Is Now a Good Time to Go Back to that Presidential War Power Debate?
it’s too easy for our growing war in Syria to get lost amidst other also-pressing
news, I want to be sure to note that last week ended with the Senate Foreign
Relations Committee formally requesting the Trump Administration’s legal
justification for a growing set of clashes between the U.S. military and armed
forces allied with Syrian President Bashar Assad. The U.S. military has of course been engaged
in anti-ISIL operations in Syria since 2014.
But this recent violence – including the incident last week in which the
U.S. military shot down a Syrian jet it said was firing on U.S.-allied
non-state forces on the ground, as well as multiple U.S. efforts to defend its creation
of a “de-confliction zone,” an area in Syria surrounding a garrison used by
U.S. Special Forces to train partner forces there – involves the United States
far more directly in state-to-state conflict with Syria (and its allies, Iran and
Russia) than we have previously undertaken.
Apart from the mammoth policy implications of this kind of escalation,
it is far from clear what domestic legal authority supports it. In this post, I’ll
address the notion that an existing statute authorizes these operations. In a later post, I’ll take up the suggestion
the President’s inherent power under Article II of the Constitution does the
Taxes, program cuts, and reconciliation: the path forward
In two recent
posts, I discussed the procedural and political context for efforts to repeal
the Affordable Care Act’s revenue provisions and reduce federal spending on
health care assistance.This legislation
does not, however, exist in a vacuum.It
is part of, and interacts with, congressional Republicans’ broader policy
agenda centered on steep cuts in taxes and social programs.This post explains how Congress’s procedural
rules will shape those initiatives.
In order to
preclude a Democratic filibuster in the Senate, Republicans must move their
agenda under special rules for “budget reconciliation”.As I explained in more detail last December, reconciliation
is possible when Congress approves a concurrent budget resolution for a fiscal
year that sets revenue and direct spending targets and instructs specific committees to report out legislation that
closes the gap between current law and those targets.
holds that each budget resolution may authorize only one reconciliation bill
dealing with direct spending and only one reconciliation bill dealing with
revenues; if a reconciliation bill, such as the pending health care proposal,
contains both direct spending and revenue provisions, that is the only
reconciliation bill allowed.Therefore,
as long as the health care bill is in progress, it makes reconciliation
procedures unavailable for either additional tax legislation or further
reductions in direct spending.This
likely explains much of the urgency the Republican leadership has felt to move
the highly unpopular health legislation quickly.
The health care
legislation has been moving under a budget resolution Congress approved for
fiscal year 2017 – the year that is now almost three-quarters over – shortly
after convening in January.Once the
health care bill is out of the way, Congress can pass a new budget resolution
for fiscal year 2018 with reconciliation instructions for other tax and budget
cuts, together or separately.(Budget
resolutions, like reconciliation bills, are immune from filibusters.)
Thus, as long as
Republicans are trying to pass their health care bill, they cannot finalize a
budget resolution to authorize reconciliation procedures to pass their tax and
programmatic cuts.Conversely, once they
give final approval to the 2018 budget resolution, they strip the health care
bill of reconciliation status and essentially write its epitaph.(Republicans apparently believe that, if they
can win initial Senate passage of their health care bill before finalizing a
2018 budget resolution, any resulting conference agreement would retain
reconciliation protection.This far from
clear: once Congress has established new targets under a new budget resolution, the old targets no longer apply and hence do not need current law to be "reconciled" with them.)
This evening Ari Melber had a segment on my speech to the Yale Law School Alumni, "Trumping the Constitution," which analyzes Donald Trump's rise to power as a symptom of long-term constitutional rot in our political institutions.
Melber did a good job of summarizing several key themes in the speech in only a few minutes, and then followed it up with a panel discussion. Posted
by JB [link]
This is not the health care bill you were looking for. Move along.
After weeks of suspense, built up with teases and process
controversies, there is an understandable temptation to seize upon the newly
released Senate Republican health care bill like a piece of next-generation
consumer electronics.One set of writers
reviews its features and bugs.Another prognosticates
on the market’s receptivity to this new product.Eventually, when these reviews and
predictions are starkly negative and key market participants announce that they
will have no part of it, a new line of commentary arises about how the designer
could have so badly miscalculated.
Yet this is not
the final McConnell substitute.It is
not McConnell 1.0.It is not even a
particularly serious McConnell beta.It
is just the first step in an extended dance whose basic moves are quite
well-known.Like Swan Lake, however, when entrusted to a skilled choreographer – and
Sen. McConnell certainly is that – this dance surprises and delights audiences
each time it is performed, as though they had never seen it before.
Perhaps the Senate's health care bill will be a political fizzle but if it passes, we should at least mark the Supreme Court's role in permitting Republicans to advance a proposal that would make one of the biggest changes to the welfare state ever -- ending the role of Medicaid as an entitlement program. As this WaPo story notes, with respect at least to Medicaid, the Senate bill is consistent with an aim Republicans at the national level have had for years. They have wanted to cap federal Medicaid spending either through block grants or per capita limits. As the story says, the Bush 43 administration made a run at a block grant proposal. But it doesn't say why it didn't pass.
In the past, proposals to cap Medicaid usually ran afoul of the nation's governors, and on a bipartisan basis. Medicaid is jointly funded by the state and federal governments. Governors know what would happen if federal spending is capped -- they will be left holding the bag for a lot of very ill poor people. This is particularly the case during recessions when state revenues decline sharply yet budgets must still be balanced due to constitutional mandates. In fact in many past recessions, including the Great Recession of 2008, states requested and got additional money from Congress to cover the gaps that opened up in state budgets for financing Medicaid. Governors are sensitive to this issue because they know they will be blamed for all the poor people who can't get medical care when state revenues decline. And if the Senate bill passes, that result is probably guaranteed in the next recession.
You might figure that governors would oppose the Senate bill and some (including some Republicans) do oppose it. But my sense is GOP governors in particular are not speaking with one voice this time around. They aren't because the Court created the option, unforeseen by Congress, of not expanding Medicaid in NFIB v. Sebelius. If all states had expanded Medicaid, they all would be in the same position with respect to the Senate bill, which is a very bad one, as it rolls back the expansion. Parenthetically, I haven't seen much commentary on how the different parts of the ACA are intended to work together. Reverse the Medicaid expansion and more poor people will show up at emergency rooms, recreating the cost shifting problem that the ACA tried to solve. In any case, GOP governors in non-expansion states appear to be supporting the House and Senate bills. The unity that characterized governors in the past on Medicaid has been broken. For that, we have the Supreme Court to thank. Posted
by Stephen Griffin [link]
Texas boys speak, and what they want is secession
Like many states, Texas has an annual "Boys State," as well as a Bluebonnet Girl's State, both sponsored by the American Legion, where presumably talented and ambitious youngsters descend on Austin to take on the role of would-be leaders of the State. Both met earlier this month, but I am interested in the boys and their enthusiastic endorsement that America's second-largest state secede from the United States. I can do no better than quote its own website and the excitement it conveys:
Today the Statesmen of Texas Boys State marched to capital to visit the various offices of elected officials and to tour the facility. The day began with the Statesmen lining up to march together with the band in the lead playing different music pieces. The capitol building of Texas is an amazing feat of architecture. Many people were able to see the march and many were impressed by the uniformity of the Statesmen. The House and Senate members reported to their respective chambers and began debating and passing laws. One bill in particular was highly favored by both chambers, the bill for secession. The senators and representatives of the Texas Boys State government passed the bill and created a constitution and a declaration of independence. This is the first time in Texas Boys State history that the government body decided to secede from the United States.
The gallery of each chamber were cheering and celebrating because they have now made history by becoming a nation....
Policy Complexity vs. Political Sustainability: The Case of the ACA
Usually, federal guarantees of health benefits are hard to unravel, especially when a critical mass of the middle class relies on them. But the ACA's complexity has made it much harder to defend politically. If the GOP were about to end Medicare, outraged resistance would swamp them. But the proposed ACA & Medicaid cuts will affect diverse groups in diverse ways. Sure, you can argue to a middle class 27-year-old in Alaska that her premiums will likely increase if something like the BCRA passes: Read more » Posted
by Frank Pasquale [link]
Thursday, June 22, 2017
The Lawyers Briefly Seize Control of POTUS Twitter
Gerard N. Magliocca
Today part of the news is that the President does not, in fact, have recordings of his conversations with former FBI Director Comey. The President's Twitter account (in two tweets) explained:
"With all of the recently reported electronic surveillance, intercepts, unmasking and illegal leaking of information, I have no idea whether there are "tapes" or recordings of my conversations with James Comey, but I did not make, and do not have, any such recordings."
Something is amiss here. Read the sentence again. This does not sound like the President's normal language on Twitter. It sounds, instead, like something that a lawyer writes. The giveaways are the use of the quotes around the word "tapes," and the formal phrase "any such." Lawyers say things in this way because they are more precise.
As a House committee was requesting the disclosure of any "tapes" of any such conversations, it is not surprising that the President would run his answer by the lawyers before hitting Tweet. Hopefully he'll start making that a regular habit. Posted
by Gerard N. Magliocca [link]
Wednesday, June 21, 2017
Who are the Statesmen of Constitutional Law?
Chief Justice Roberts, in NFIB v. Sebelius, wrote that a
(putative) rule of constitutional doctrine, namely the action/omission
distinction in the context of the commerce power, is sensible in light of the
fact that the Framers were “practical statesmen, not metaphysical philosophers.”
567 U.S. 519, 555.
Felix Frankfurter and Henry Hart, in what was essentially
the Harvard Law Review Foreword for 1935, wrote that crucial elements of the
Supreme Court’s practices in constitutional adjudication “express the
sensibilities of statesmen, not the formulation of technicians.” See 49 Harv. L.
Rev. 68, 94 (1935).
The two sources
describe, more or less, the same virtue.But they claim it for two different groups of people.Because the statesmen Frankfurter and Hart
were describing weren’t the Framers.They were the Justices.
Last December, I
wrote about how the strange world of congressional procedure, and particularly
budget reconciliation, was likely to shape the agendas of Speaker Ryan,
Majority Leader McConnell, and President Trump.Quite a bit has happened since then, but budget process rules remain
pivotal.It therefore seemed time for an
Some preliminary thoughts on Matal v. Tam, Trademarks, and the First Amendment [UPDATED]
analysis in the Supreme Court's decision yesterday in Matal
is, with one exception, split between two four-Justice opinions, the first
written by Justice Alito (joined by the Chief Justice, and Justices Thomas and
Breyer), and the second written by Justice Kennedy (joined by Justices
Ginsburg. Sotomayor and Kagan). Here are a few preliminary reactions to those
The Supreme Court’s decision yesterday in Ziglar v. Abbasi is an abysmal result
for those who believe there should be some remedy available when the government
violates your constitutional rights – even if Congress has not gotten around to
enacting separate legislation creating one.
As others have by now pointed
out, it is abysmal as an exercise in legal reasoning as well, whether one
agrees with the outcome or not. What it should
not be, as some colleagues have suggested, is fodder for the broader debate –
about which I wrote last week in the Trump immigration order context, below – about
whether and when the President’s reasoning is entitled to judicial deference in
matters of national security.
The government’s motion to dismiss in CREW v. Trump features a two-prong argument on the central issue in the dispute, namely, the meaning of the term emolument in the provision stating that “no person holding any office of profit or trust under them, shall, without the consent of the Congress, accept of any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state.” The DOJ’s argument presumably offers a template for the government’s position in the other emoluments cases. First, according to the DOJ, the term emolument was “widely understood at the framing of the Constitution to mean any compensation or privilege associated with an office”—such as tolls, rents, fees, and the like, attached to the performance of official duties. Whether this claim can stand up to historical scrutiny remains doubtful, in light of analyses by John Mikhail (here and here), and by Joshua Matz and Larry Tribe.
Second, according to the DOJ lawyers, it makes no difference that the term emolument also carried a broader sense, extending to “anything of value” such as a “benefit,” “advantage,” or “profit,” because (quoting Virginia v. Tennessee, 148 U.S. 503, 519 (1893)), “where a word is capable of different meanings or ‘[w]here any particular word is obscure or of doubtful meaning, taken by itself,’ the ‘obscurity or doubt may be removed by reference to associated words.’” Again quoting Virginia, the DOJ adds that we should construe terms by “apply[ing] to them the meaning naturally attaching to them from their context.” This trenchant observation, however, cuts in precisely the opposite direction from the one the DOJ urges.
No one seems to have any difficulty understanding what is meant by present, the word that precedes emolument on the list. People who receive presents might feel obliged to reciprocate, and even if they act with the best of intentions, their vigilance might occasionally flag. Instead of making government officials monitor themselves, the Constitution seeks to keep that need from arising in the first place. By the same token, the prohibition also prevents the circumstances that would make others look askance when a state actor confers favors, or offers preferential treatment that might appear to result from this sort of appreciative attitude. In an article on diplomatic gift-giving in the later eighteenth and early nineteenth centuries, Robert Ralph Davis, Jr. catalogued a wide array of presents that were prohibited under this clause, including snuffboxes, jewel-encrusted portraits, medals, porcelain, and, on one occasion, two horses and a lion. (Small gifts of fruit were okay, apparently.)
In our filing at the Supreme Court, we argue that the travel ban is an unconstitutional violation of the Establishment, Equal Protection, and Free Exercise Clauses. We demonstrate why Trump's recent tweets constitute additional evidence for his animus-based motivation. And we respond to the government's argument that the 4th Circuit engaged in a novel, unjustified expansion of the Establishment Clause.
Thanks to distinguished lawyer Roberta Kaplan and her team for drafting a terrific brief.
The Appeals Courts Aren’t Deferring At All to the President’s National Security Defense of His Travel Ban – Is This a Trump Thing or a Presidency Thing?
The past week saw the Ninth Circuit Court of Appeals joining
the Fourth Circuit in concluding that the Trump Executive Order (the Order)
barring nationals from 6 Muslim-majority countries is so likely to violate the
Constitution or laws of the United States, the Order cannot be allowed to take
effect. The Fourth Circuit thought the
ban ran afoul of the Constitution’s prohibition against religious
discrimination; the Ninth Circuit thought the President failed to comply with
statutory restrictions on executive immigration power. But both decisions turned on the courts’
basic rejection of the President’s argument that the Order was necessary to
protect national security.
Regardless whether the Supreme Court decides to review these
decisions (in the face of ample reasons not to), the lower courts’
decision-making is already striking. As others have by now pointed out, there
are plenty of cases to which the courts could have pointed for the generic
proposition that presidents are entitled to deference by the courts on matters
related to immigration, and matters related to national security – a practice one
might imagine is only amplified when a case sounds in both immigration and
national security together. So why have
the courts been so determined not to defer to the President here?
A number of writers over the past few weeks (e.g. here) have
suggested that the courts are not deferring in these cases because they categorically
do not trust this President.That is, between this President’s chronic
expressions of disdain for the U.S. intelligence community, the judiciary, and the
independence of federal law enforcement (and other not-in-the-briefs behaviors)
– the courts have now cast aside the ordinary deference to which Presidents are
entitled because “this president so obviously has not earned it.” Yet as well
deserved as such general judicial distrust would be, there is nothing in either
decision to suggest their holdings were based on a unique absence of trust
here. And while it might not take too much psychologizing to support a
hypothesis that many federal judges in fact do not trust this president, I
would be more likely to embrace the view that this is really what’s going on in
these decisions if the reasons the courts had given were so implausible or
otherwise unique in the course of ordinary jurisprudence in these fields that
some alternative explanation had to be the real one.
Dawn Johnsen offers a more detailed but still Trump-specific
explanation, arguing that this President should fairly be understood as having
ceded all claim to the traditional basis for judicial deference, which “embodies
assumptions that the president’s actions reflect regular processes
behind-the-scenes, that the decisions are informed by expertise and judgment….”
Indeed, the Ninth Circuit’s decision
relies expressly on the Order’s lack of statutorily required “finding that
nationality alone renders entry of this broad class of individuals a heightened
security risk to the United States.” But
the Ninth Circuit does not cite process failures per se for the inadequacy of
the President’s judgment. Rather, it
concludes that the “findings” the President made “do not support the conclusion
that the entry of nationals from the six designated countries would be harmful
to our national interests.” In a world
in which a president needs only invoke the words “national security” to secure
judicial deference, the President’s assertion here might suffice. But it would be a mistake to think that’s the
judicial world in which we reliably live.
On the contrary, the Ninth Circuit here does exactly what the Supreme
Court did in striking down the original military commission system established
under an entirely different president. In Hamdan v. Rumsfeld (2006), the Court
applied a statutory requirement that any deviation from existing (statutory)
military trial procedures be supported by a presidential determination that it
was “impracticable” to apply those procedures.
As the Hamdan Court concluded, “[n]othing in the record before us
demonstrates that it would be impracticable to apply court-martial rules in
this case.” The President’s ‘findings’, such as they were, were exactly as inadequate
to support its action in that case as this President’s are here. Again, without doubting the existence of any
number of unique irregularities in the Trump process that produced this
particular executive order, the Ninth Circuit is not-deferring in a
way that is familiar in the post-9/11 world.
Then there is the prospect that “Trump’s extraordinary – indeed,
unprecedented – behavior” means he is not entitled to traditional judicial
deference because we lack “a plausible basis for believing” what judicial deference
otherwise assumes – that the President is not making decisions “in bad faith,
or on the basis of impermissible motives.” Indeed, it was exactly the opposite conclusion
– namely, that plaintiffs had “plausibly alleged with sufficient particularity”
that the reason for the government action was provided in bad faith – that led
the Fourth Circuit to look behind the Order’s stated national security basis to
examine whether Trump’s actual motives violated the Constitution’s Establishment
Clause. Yet the court’s move here
likewise reflects nothing new under the deference sun. Rather, the Fourth
Circuit expressly applies the longstanding, profoundly deferential standard in
1972’s Kleindienst v. Mandel providing
that the courts will not look behind the executive’s exercise of discretion to
exclude aliens from the United States so long as the executive “exercises this
power on the basis of a facially legitimate and bona fide reason.” Where there is evidence that the reason is
not bona fide – the literal translation of which is good faith – the court has
long retained the power to look behind executive immigration actions. Trump’s
bad faith may be unprecedented, but the courts’ concern about bad faith is not.
Trump’s Order, the chaos that surrounds it, and the President
who signed it are unique in all kinds of ways.The courts’ approach to it not nearly as special as all that.