Balkinization  

Wednesday, June 28, 2017

That Syria War Power Debate, Continued

Deborah Pearlstein

Cross-posted at Opinio Juris

If, 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.

This ‘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. 


Yet 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.   

A Realistic Theory of Law

Brian Tamanaha

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.
As a side note, the cover images were drawn by my artist daughter. It is my first book with a cover that conveys the content.

Tuesday, June 27, 2017

Two Essays on Constitutional Rot

JB

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.

Here are the abstracts:


Constitutional Rot and Constitutional Crisis


May 15, 2017

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

June 14, 2017

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.

Your Travel Ban Isn't Safe Yet, Mr. Trump

Corey Brettschneider

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.


Monday, June 26, 2017

Is Now a Good Time to Go Back to that Presidential War Power Debate?

Deborah Pearlstein

 Because 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 job.
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Taxes, program cuts, and reconciliation: the path forward

David Super

     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. 

     Senate precedent 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.)

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Sunday, June 25, 2017

Constitutional Rot-- A Discussion on MSNBC

JB

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.

This is not the health care bill you were looking for. Move along.

David Super


     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. 

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Saturday, June 24, 2017

Ending Medicaid As We Know It: The Court's Role

Stephen Griffin

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.

Texas boys speak, and what they want is secession

Sandy Levinson

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....

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Policy Complexity vs. Political Sustainability: The Case of the ACA

Frank Pasquale


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:
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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.

Wednesday, June 21, 2017

Who are the Statesmen of Constitutional Law?

Richard Primus



Just noticing:

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. 

Tuesday, June 20, 2017

Health Care and Reconciliation

David Super

     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 update.

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Some preliminary thoughts on Matal v. Tam, Trademarks, and the First Amendment [UPDATED]

Marty Lederman

The constitutional analysis in the Supreme Court's decision yesterday in Matal v. Tam 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 opinions.

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Speaking of Executive Deference

Deborah Pearlstein

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. 

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Presents, Emoluments, and Corruption

Guest Blogger


Simon Stern

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 officesuch 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.)

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Friday, June 16, 2017

Opposing Trump's Muslim Ban At The Supreme Court

Corey Brettschneider

President Trump has asked the Supreme Court to lift the orders preventing him from implementing his revised travel ban. Nelson TebbeMicah Schwartzman and I, along with a large group of constitutional law scholars, have filed a brief opposing Trump's motion.

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.

*Cross-posted at TakeCareBlog.com

Thursday, June 15, 2017

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?

Deborah Pearlstein

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.

The Biggest Jurisprudential Mistake Made in Politics

Guest Blogger

Scott Shapiro

Twitter exploded three days ago when Chris Ruddy, publisher of Newsmax and friend of Donald Trump, reported on CNN that the President was thinking of firing the Special Prosecutor, Robert Mueller. There was predictable outrage (this is Twitter, of course): How could the President fire the special prosecutor when he is likely to be (and we now know is) a target of Mueller’s investigation? The blowback was even stronger than when Trump fired Comey, for Mueller had only been appointed last month and could not possibly have given the President cause for dismissal.

Some responded that the President is the chief executive of the United States. He has the legal authority to dismiss anyone who works in the executive branch. He’s the Decider. (Let’s ignore the subtleties of whether or exactly how he could do this. For discussion, see here and here). Alan Dershowitz, for example, has argued that “President Trump cannot be charged with obstruction for firing Comey, which he had the constitutional authority to do.” The idea seems to be that someone can’t be criminally responsible for a legally authoritative action. “A president cannot be charged with a crime for properly exercising his constitutional authority.”

Unfortunately, this response misses an important jurisprudential distinction, one that is routinely conflated in political discussions: having a legal power to act does not imply a legal permission to exercise that power. You can do some act in the sense that the law gives you the power to do it, and you can’t do that very same act in the sense that the law forbids using that power.

Two simple examples perfectly illustrate this point. Jurors have the power of jury nullification, meaning they can acquit against the weight of the evidence.  But judges instruct jurors not to use this power, instead directing them to decide cases using only the evidence admitted during the trial and the legal instructions provided. Jurors have the legal power of jury nullification, but it would be legally wrong for them to exercise it.

Or suppose you sign a contract with Donald Trump to buy one of his properties. But before you close, he signs a second contract with another person and closes on that deal first.  He will have successfully sold the property to someone else, even though he violated his contractual duty to you not to do so.

As philosophers have long recognized, people can have a right to do wrong. The law may give persons a legal right to perform some action even though there are situations where exercising that right would be wrong. In such cases, you have both a legal right (understood as a power) that you don’t have the right (understood as a privilege) to exercise.

Thus, even if the President has the authority to fire the special prosecutor, he is under a duty not to exercise that power for the purpose of obstructing justice.  He can fire Mueller and he can’t fire Mueller.  In this way, the President is no different from a juror or an unscrupulous real estate developer.

Scott Shapiro is Charles F. Southmayd Professor of Law and Professor of Philosophy. You can reach him by e-mail at scott.shapiro at yale.edu

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