Balkinization  

Monday, May 21, 2018

"The Rule of Law"

Joseph Fishkin

The rule of law is one of those broad concepts, like human dignity or equal opportunity, that we all can agree we support in part because we don’t entirely agree on what it means.  Two especially unusual conceptions of the rule of law offered by politicians on the right, in this country and elsewhere, recently underscored this point.

The first came from Viktor Orban, the Prime Minister of Hungary, under heavy fire from the European Union for undermining the rule of law (by, among many other things, limiting the power of his country’s Constitutional Court and manipulating the judicial retirement age to pack the courts).  Orban says it is actually the EU that is undermining “the rule of law” in his country.  “The rule of law means people do not rule other people,” he argued in a speech in March.  It means law without “political bias,” and law that “does not make distinctions between countries” large and small.  Thus, he argues, when the EU singles out Hungary, treating it unfairly and exhibiting “political bias” by attacking the actions of Orban and his party, it is the elites of the EU who are undermining the rule of law.  Call this the protecting-democracy-against-elites conception of the rule of law.  On this view, Orban is the democratically elected (asterisks omitted) leader of the nation; if elite bodies such as the EU that were not similarly elected by the Hungarian people act to constrain Orban’s power or his party’s power, they are exhibiting “political bias” and in that way vitiating “the rule of law.”

The second came from Mike Pence.  This month he called former Sheriff (and now U.S. Senate primary candidate) Joe Arpaio “a tireless champion of strong borders and the rule of law.”  This statement implies a different but equally unorthodox conception of the rule of law.  I would think most defensible conceptions of the rule of law would be thick enough to include some principle that law enforcement must conduct itself without racial bias.  (For a powerful statement of this connection, consider Margaret Marshall’s description of the “lawless” government of her native South Africa under apartheid.)  But some might favor a thinner conception of the rule of law, independent of such substantive questions of equality and justice.  However, even the thinnest conception of the rule of law would almost inevitably require a principle that law enforcement has a particularly strong obligation, defeasible only in extreme circumstances, to obey the orders of legitimately constituted courts of appropriate jurisdiction.  Otherwise, how can law enforcement plausibly be regulated by law?  Joe Arpaio, as Sheriff, not only racially profiled Latinos, arresting and detaining them even where there was no plausible criminal charge, but was convicted of contempt of court for willfully refusing to obey a court order to stop doing this.  (President Trump subsequently pardoned him of this offense; Pence later declared him a “champion” of “the rule of law.”)  If we take Pence’s comment seriously, it seems to rest pretty squarely on a conception of the rule of law that renders that concept more or less the equivalent of what other politicians of like mind have long called “law and order.”

What brought these two unusual conceptions of the rule of law to my mind today was President Trump’s outraged insistence that the Department of Justice inspect both itself and the FBI to determine whether there was any improper politically motivated surveillance of the Trump campaign in 2016.  I doubt that Trump himself has any firm conception of “the rule of law.”  But he has embraced “law and order” as a rhetorical and political trope like no President since Nixon.  He would almost certainly find congenial his vice president’s dangerous conflation of the rule of law with law and order.  And yet, in both rhetoric and action, Trump seems to identify at least as closely with the core premises of the protecting-democracy-against-elites conception of the rule of law offered by Viktor Orban.  I suspect that one is actually the more dangerous of the two, as I’ll explain below.

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Friday, May 18, 2018

What We Learned (or not) About the Corker-Kaine AUMF

Deborah Pearlstein


The Senate Foreign Relations Committee hearing this Wednesday on the proposed 2018 Authorization for Use of Military Force (AUMF), co-sponsored by Senators Bob Corker (R.-Tenn.) and Tim Kaine (D-VA), was in many ways a model of how democracy should work.  The witnesses were expert and prepared, the Senators’ questions were thoughtful and informed, and everyone who participated was sober and respectful.  Would that we approached more of our national decision-making this way.  At the same time, it became apparent that senators’ views about whether this bill would be more or less effective than the existing 2001 AUMF in constraining presidential power to use force are based on misapprehensions about where we are under current law.  (Recall the current AUMF, passed just after the attacks of 9/11, has since been invoked as the law authorizing everything from the invasion of Afghanistan and the detention of prisoners at Guantanamo Bay; to drone strikes in Yemen, Somalia, Libya, and Syria; to the military detention of U.S. citizens (including one currently held in U.S. military custody in Iraq) accused of membership in one of the terrorist groups the law covers.)  Herewith, some assertions (several of them from both sides of the aisle) made Wednesday that could use some important qualifications, constitutional qualifications included.

The 2001 AUMF has been interpreted so broadly, presidents have been able to rely on it to justify essentially any use of force they want.   While there is little doubt more than one president has offered implausibly sweeping interpretations of the 2001, the existing law functions to constrain presidents in several demonstrable ways.  Most immediately, there is ample evidence from public accounts of both the Bush Administration (contemplating the invasion of Iraq) and the Obama Administration (contemplating, for example, the targetability of Al Shabaab in Somalia for a period of years) in which the administrations concluded the 2001 AUMF was insufficient authorization for initiatives at the edge of relevance to the attacks of 9/11.  Identifying instances in which presidents have used force under the 2001 AUMF is not enough to make the argument that it has not constrained; on the question of constraint, understanding when and whether presidents haven’t used force is at least as important.   Further, the meaning and scope of the 2001 AUMF has long since been informed by a set of judicial decisions that have already – and appear poised to increasingly – guarantee additional limits are imposed on presidential authority.  Most prominently at the moment, the 2001 AUMF requirement (absent in the new bill) that detainees held under the statute be part of groups in some respect related to the attacks of 9/11 is the subject of very active litigation in federal courts in Washington, in which the administration’s authority to detain ISIS members under the law is substantially in question.  Similarly, the Supreme Court’s 2004 ruling in Hamdi v. Rumsfeld, requiring that the “necessary and appropriate force” authorized by the AUMF be informed by the Geneva Conventions and the international law of war has required (and will continue to require) courts to consider when detention authority under the law expires (a question even the D.C. Circuit now understands must be resolved as a matter of statutory interpretation by the courts).  (That the Corker-Kaine bill fails by its terms to reaffirm the requirement that it be interpreted with reference to the law of war is one of several ways in which Corker-Kaine may be read as troublingly broader than the current AUMF.) Because Corker-Kaine would repeal the 2001 AUMF, judicial decisions interpreting that law would no longer have certain relevance.

The Corker-Kaine bill’s requirement that the president report to Congress every 4 years on the use of military force under the law, following which report Congress has 60 days to consider modifying the authorization to use force under expedited legislative procedures, will ensure that future Congresses debate the necessity of ongoing war far more frequently than the does the 2001 AUMF (which contains no such reporting requirement).  As the witnesses Wednesday noted, the President is already required to report new uses of force under current law, and there is nothing at all in the law that has prevented Congress from reconsidering and modifying the 2001 AUMF at any time.  The notion that Corker-Kaine will make it more likely that Congress will regularly debate the state of the war is thus based solely on the expectation that the availability of expedited procedures (by which, for example, the Committee on Foreign Relations can only consider acting for so long before the matter is referred to the full Senate) gives members an incentive to engage in deliberation on the state of the war they have not otherwise had.  History – most notably the inclusion of analogous “Congressional Priority Procedures” in the 1973 War Powers Resolution – should provide ample reason for doubting that such procedural mechanisms much alter the incentives of members of Congress otherwise not disposed to expressing their views on the state of a war.  Indeed, by authorizing the President to add groups to the list of enemies against whom force may be used without first returning to Congress (as the Corker-Kaine bill does), the bill removes perhaps the most powerful incentive there is for Congress to engage on a question of war – namely, the existence of an identified, pressing national security threat that the President asks Congress urgently to address.  In this respect, if Congress were most interested in maximizing incentives for legislative engagement, it would seem more effective to include the reporting and expedited procedure provisions while eliminating the delegation of power to the President to add more groups to the list of enemies whenever he deems it necessary. 

Ordinary constitutional concerns about excessive or unconstrained delegations of power by the Congress to the President do not arise on questions of war power, as to which the President has significant constitutional authority of his own.  The Supreme Court has long recognized as among first constitutional principles the idea that one branch of government could not simply give away all of its authority to another without doing fatal harm to the Constitution’s separation of power.  At its height, that non-delegation rule never prohibited Congress from delegating the Executive Branch power to perform certain functions; but it did require that Congress provide some “intelligible principle” by which the Executive could act while still constrained by Congress’ will.  And while it is true the Court has not declared an Act of Congress wholly unconstitutional on non-delegation grounds for decades, the Court today regularly cites non-delegation concerns as grounds for reading especially sweeping grants of power to the executive narrowly.  In this respect alone, Corker-Kaine proponents should be concerned about a variety of new litigation risks this bill creates. 

Critically, and contrary to the suggestion at the hearing, there is no certainty at all that the Court will find such concerns less salient just because the President has relevant constitutional authority of his own in this realm.  The idea that the Court is untroubled by broad delegations of power to the President in foreign affairs is most commonly traced to the Court’s 1936 decision United States v. Curtiss-Wright Export Corp., a non-wartime case in which the (pre-New Deal) Court upheld a statutory delegation of power to the President to place an embargo on arms sales to certain countries.  Curtiss-Wright’s once-often-cited broad language about presidential power in foreign affairs has been thoroughly repudiated by the Court’s words and actions in the years since 1936, and that case (and the tiny handful of other cases sometimes cited with it) involved delegations of power that pale in comparison to the Corker-Kaine bill today.  Like the 2001 AUMF, the Corker-Kaine bill contains no geographic restrictions, limits on duration, or on the amount or kind of force to be used (from drone strikes to ground invasion).  Well beyond the 2001 AUMF, Corker-Kaine also delegates to the President the power to add more enemies to the list of those with which we are at war.  And unlike the 2001 AUMF, which authorized force “in order to prevent any future acts of international terrorism against the United States,” and the separate 2002 AUMF, which authorized the President to use force in Iraq “in order to,” among other things, “enforce all relevant UN Security Council resolutions regarding Iraq,” the Corker-Kaine bill contains no “in order to” clause of any kind.  Indeed, unlike existing law, this bill authorizes the President to use force not only against current members of our enemies’ forces, but also against any person that “the President determines … has been a part” of any enemy force.  That is to say, even if Al Qaeda, ISIS, and any others later designated were to cease to exist as organized groups – even if they were militarily defeated in any ordinary sense of the word, even if “war” in any constitutional sense is over – the President could still use force.  Such a delegation of power has no historical analogue, dwarfs the statutes considered in case law of old -- and especially relevant for what non-delegation advantage a president may claim in this realm, stretches far beyond any conception of independent Article II “war” power any President might constitutionally claim.

After 17 years of war, Congress should be commended for at long last moving to reassert its constitutional duty to decide when the United States will use force.  But as the hearing Wednesday made apparent, the Corker-Kaine bill risks being the moment when Congress asserts its authority only to create a far bigger constitutional problem than already exists.


Thursday, May 17, 2018

Jeffrey Sutton, 51 Imperfect Solutions: States and the Making of American Constitutional Law

Sandy Levinson

The Oxford University Press has just published an interesting new book, 51 Imperfect Solutions:  States and the Making of American Constitutional Law, by Sixth Circuit Court of Appeals Judge Jeffrey S. Sutton.  He is an extremely thoughtful conservative judge; among other things, his opinion upholding the Affordable Care Act is by far the best of the judicial opinions that wrestled with the constitutional issues purportedly surrounding its passage.  It is a measure of the degree of ideological polarization that this opinion almost certainly accounts for his being left off the lists compiled by the Heritage Foundation and Federalist Society of desirable Supreme Court appointees. (And, of course, political liberals are presumably unhappy with his well-written opinion upholding Ohio’s law barring same-sex marriage, based on judicial restraint arguments, which was overturned in Obergefell.)  

Sutton had been Ohio’s solicitor general prior to his appointment to the Sixth Circuit.  He has long been a serious devotee of federalism, and his book is a superb overview of the various ways that the 50 states have often served, for good as well as for ill, as “laboratories of experimentation” with regard a number of important areas involving especially civil liberties. At a time when political liberals are busy rediscovering the benefits of federalism, the book is especially timely and interesting.  (If I have a criticism of the book, it is only that, like most inquiries into contemporary constitutional law in the US, it focuses almost exclusively on rights and doesn’t go into the structural aspects of constitutional design where state constitutions are pervasively and importantly different.  Consider, for examples, that we simply wouldn’t be having the sterile conversations about Robert Mueller and the “unitary executive” were we discussing the 95% of American states where the state’s attorney general is in no sense under the domain of the governor.)  But Sutton offers consistently interesting discussions of the material that he has chosen to write about.  

It is not surprising that the back cover includes enthusiastic blurbs from across the political spectrum.  Part of this is a tribute to Jeffrey Sutton himself, whom I know personally to be an unusually thoughtful and trustworthy person.  But, as suggested above, it is also attributable to the fact that contemporary debates about the US Constitution feature a fair amount of what Jack Balkin calls “ideological drift.”  It is, after all, contemporary liberals who are inclined to condemn the “commandeering” of state officials to enforce Draconian national anti-immigrant laws, while many conservatives who otherwise pretend to valorize local autonomy seem to believe that ICE should reign supreme.  And there are a number of areas in which state supreme courts have been considerably more innovative than the contemporary Supreme Court.  See, for example, his chapter on school finance litigation, where one realizes that Rodriguez was in no serious sense the "last word" on the constitutional legitimacy of school financing systems--it's simply that we now know the relevant constitutions are state constitutions and not the national counterpart.

In any event, this would be an excellent book to include among gifts to graduating seniors (and others) who are interested in the American constitutional order.  Sutton writes extremely well; his book is accessible to one and all.  I agree with Laurence Tribe, who writes that “It’s one of those books that lawyers and non-lawyers alike will benefit from.” One doesn’t have to buy into the metaphysics of “state sovereignty” or extravagant views of the Tenth Amendment in order to realize that American states (and their constitutions) are both interesting and important and deserve far more attention than they receive particularly from elite legal academics.  This book could make a real difference in generating new and valuable conversations. 

Revisionist History--Season 3

Gerard N. Magliocca

I'm a fan of Malcolm Gladwell's podcast, and the first episode of this season is about the punctuation of the Constitution. More specifically, the episode discusses a paper by Michael Stokes Paulsen and Vasan Kesavan, which argues that the Texas Legislature has the power to subdivide the state into up to four new states because Congress gave its consent to that action when Texas was admitted to the Union in 1845. (Talk about the potential for partisan gerrymandering!)

There are several other fascinating points in the podcast. One is that Gladwell spends a lot of time talking about the punctuation in the Constitution without considering the possibility that the rules of grammar were different in the eighteenth century. I don't know if they were in a meaningful way, but the assumption in the episode is that we should understand the use of commas, semicolons, etc. as they are used now. Why is that?

Another Easter Egg is that Gladwell points out that the Twenty-Sixth Amendment, which was ratified in 1971 (when punctuation rules were presumably similar to our own) read literally says that anyone 18 or older is a citizen of the United States. Here is the Section One of that amendment:

"The right of citizens of the United States, who are 18 years of age or older, to vote, shall not be denied or abridged by the United States or any State on account of age.

Read gramatically, the clause "who are 18 years of age or older" is defining "citizens of the United States." The text should read "The right of United States citizens who are 18 years of age or older" or "The right of citizens of the United States who are 18 years of age or older"  In other word, there should be no commas around the relevant clause. Of course, this is just the zillionth example of why we don't read legal texts literally because the drafters are often sloppy even when the meaning is clear from the background context. (The 26th Amendment was not trying to redefine citizenship.)

The podcast is definitely worth your time, if for no other reason than that Gladwell praises law review articles.

  

Wednesday, May 09, 2018

Bomber Harris and the Haspel Nomination

Guest Blogger

John Fabian Witt

Gina Haspel, who testifies today before the Senate seeking confirmation as Director of Intelligence, is not the first American official to confront a past in black ops, torture, and humanitarian law violations.  To the contrary, she stands as the latest in a long line of Americans.  How we deal with such people speaks volumes not just about them, but about us.

The basic conundrum goes back to the very beginnings of the republic.  The frontier world of empire and Indian fighting regularly produced sharp controversies over war tactics.  No one was more controversial than George Washington, who as a young British officer was implicated in a possible massacre of captured French soldiers in the Seven Years War.  Washington himself, perhaps inadvertently, seemed to admit that something untoward had happened; the killings, he admitted, had been “assassinations.”  Soon Washington was a notorious figure, condemned by the Governor of New France.  “There is nothing more unworthy and lower, and even blacker,” wrote the Governor, “than the sentiments and the way of thinking of this Washington.”

Washington was hardly the only prominent American to be tied to an ugly past.  When Andrew Jackson was up for the presidency in the 1820s, he was dogged by claims that he had unlawfully executed two British nationals on his unauthorized raid into Florida.  Colonel John Chivington, commander of a regiment of Colorado Volunteers, killed hundreds of Cheyenne women and children in the infamous Sand Creek Massacre.  Chivington tried to reenter politics despite an Army judge’s conclusion that he had engaged in a “cowardly and cold-blooded slaughter.” 

Perhaps the closest analogy to Haspel is another less prominent figure in history, someone who like Haspel operated mostly in the shadows.  A hundred and twenty years ago, an Army lawyer named Colonel Edwin Glenn operated a secret torture team, not far from the black site in Thailand whose secrets now shape Haspel’s fate.  During the insurgency in the Philippines that followed fast on the Spanish-American War, U.S. forces employed a close cousin of waterboarding to obtain information about the location of insurgents in the hills.  Colonel Glenn organized the effort.  He was convicted at a court martial of illegal torture, but his sentence was a slap on the wrist: suspension from his command for a month and a $50 fine.  And like Haspel (who faced no prosecution at all for her role in the CIA interrogation program), Glenn, too, resumed a career in the military.

Americans have been willing (perhaps all too willing) to welcome back men despite ugly pasts.  But the usual pattern requires renewed commitment to the very standards they violated.  To overcome his early missteps, a more mature Washington held himself out in the War of Independence as complying with the highest ethical standards.  Qualifying as an independent state would mean that the laws of war applied.  And so, along with the upstart republic he served, Washington committed to close compliance with the Enlightenment laws of war.

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Tuesday, May 08, 2018

Normalcy and the Presidential Subpoena

Deborah Pearlstein

While predicting what is likely to come next in the unfolding legal drama surrounding the President seems something of a fool’s errand, the prospect that Special Counsel Robert Mueller might subpoena the President to compel him to testify before a federal grand jury now seems at least plausible enough to have prompted more than a little commentary on the constitutionality of such a move.  Most views cluster around the conclusion I tend to share: the question whether the President can be compelled to testify was formally left open by United States v. Nixon, but the considerations that led the Nixon Court to conclude that President could be compelled to turn over audio tapes relevant to a federal criminal prosecution tend to favor the conclusion (as do subsequent cases like Clinton v. Jones) that Trump could, modulo particular claims of executive privilege about particular lines of inquiry, be compelled to testify here.

Princeton historian Keith Whittington, however, suggests courts might well (and, I take him to argue, should) take a different view.  Whittington emphasizes “two considerations that should weigh on the minds of the justices and that might give them pause before extending the logic of United States v. Nixon and Clinton v. Jones.” In brief, Whittington argues: (1) that commanding a President to appear before a court and provide testimony “intrudes on the core functioning of a coordinate branch” in a way that commanding the President to turn over documents or even recordings does not; and (2) the courts should be reluctant to play (borrowing Mark Tushnet’s phrase) “constitutional hardball” against the political branches in general, and most especially here, where they face a President who has given them every reason to take seriously “the possibility that Trump might choose to take the extraordinary step of ignoring a judicial order, especially one that threatened his core personal interests.”

Although Whittington is surely right to underscore the high stakes – personal and constitutional – attending any actual fight over presidential testimony, neither of these reasons strikes me as adequate grounds for any contemporary court to shy away from enforcing an appropriately limited subpoena.
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Interview on Facebook and Data Capitalism

JB

Yale Insights asks me three questions about Facebook, the Cambridge Analytica scandal, and information fiduciaries.



Monday, May 07, 2018

The Art of the Rescission

David Super


     On May 8, President Trump reportedly will send Congress a request to rescind $15 billion in funds appropriated for a variety of non-defense programs.  Some sources both in the White House and in Congress suggest that this may be the first of several such requests that the President will make over the coming months.  These requests are made under the Impoundment Control Act, on which even many budget process experts find themselves a bit rusty.  Not surprisingly, media coverage of the possibility of rescissions has been confusing and sometimes contradictory.  This post examines the procedural, substantive, and political dimensions of these proposals.

     Congress enacted the Impoundment Control Act in 1974 with Title X of Pub. L. No. 93–344 in response to President Nixon’s repeated refusals to spend appropriated funds on programs he disliked.  The Act represents a truce between congressional and executive interests, albeit one enacted at a time when the President was severely weakened.  In lieu of the chaotic political and legal conflict that resulted from the President’s ad hoc impoundments, the Act established a formal procedure for resolving presidents’ desires not to spend appropriated funds and prohibited impoundments outside those procedures. 

     Under the Act, the President may submit a request to Congress to rescind any funds that have been appropriated but not yet obligated.  Special fast-track procedures, somewhat similar to those used to pass budget resolutions and budget reconciliation laws, then assure these proposals of receiving congressional consideration.  Most importantly, this legislation makes rescission legislation difficult to kill in committee and impossible to filibuster in the Senate, allowing rescissions to pass with simple majority votes in both chambers. 

     If Congress enacts rescission legislation within roughly 45 days, the President prevails.  (Long recesses toll the statutory 45-day clock.)  If not, the general requirement that the President spend appropriated funds reasserts itself and the President is prohibited from submitting a subsequent rescission request relating to the same funds. 

     This procedure has important limitations, which go a long way toward explaining why the process has been so rarely used (and why the Act is so widely considered an important victory for Congress).  In particular, 2 U.S.C. § 681(4) prohibits the President from invoking the Act to seek rescission of money that is already legally obligated.  This means that mandatory programs such as Social Security, Medicare, and school lunches are not subject to rescission because their authorizing statutes obligate those funds in accordance with their benefit eligibility formulas.  This also means that programs that provide grants in aid to state or local governments under a statutory formula, such as the Special Supplemental Nutrition Program for Women, Infants, and Children (WIC) and many elementary and secondary education programs, are exempt from rescission.  The Government Accountability Office (GAO) has confirmed this in opinions at least as early as 1982 and as recently as December. 

     Although the complete list of proposed rescissions is not public at this writing, news accounts suggest that some will attack both programs with mandatory funding, such as the Children’s Health Insurance Program (CHIP), and programs making formula grants to state and local governments.  If legislation to implement the President’s proposals includes these improper rescissions, it would be vulnerable to a point of order depriving it of the special fast-track procedures.  Without immunity from a filibuster, such legislation would have little chance of passing.

     The substantive explanations offered for this rescission proposal are both strange and contradictory.  House Republicans and the White House argue that these rescissions are needed to reduce budget deficits.  These arguments come from the same quarters that were waiving away deficit concerns just a few months ago when passing a tax bill whose ten-year cost is 100 times the amount these rescissions claim to save. 

     In addition, the White House is, on the one hand, touting large savings from these rescissions while on the other hand insisting that they will do no harm because the money would not have been spent anyway.  If the money would not have been spent, there are no savings.  Deficit figures, whether from the Administration or the Congressional Budget Office (CBO), work from money actually spent.  Any rescission of money that would not be spent by definition cannot reduce the deficit. 

     A lot of this seems to be doubling down on short-sightedness.  Some of the amounts involved apparently are contingency funds set aside to continue anti-poverty programs during economic downturns.  The White House argues that, because the economy seems strong, these funds likely will not be needed.  If that is true, the rescission saves no money and is pure theater.  If, however, an economic downturn comes, why would we not want to help the newly impoverished as much as the chronic poor?  Legislation providing in advance for unpleasant contingencies is already too rare; if appropriators see that these funds will constantly be rescinded, they likely will stop trying. 

     The truth is that some programs likely do have more money than they need.  The list of such programs surely includes Defense as well as Non-Defense programs, unlike the President’s reported roster of proposed rescissions.  But after years of deep cuts to discretionary spending, many other programs, such as the Census Bureau and low-income housing, have much less than they need.  The country certainly could benefit from a thoughtful rescission proposal that sought to reallocate funds to where they could do the most good.  This, however, is not that bill.

     The politics of rescission proposals are complex.  Reportedly the White House and the House Republican leadership promised that the President would submit a rescission package in exchange for the votes of some House Republicans for this spring’s omnibus appropriations bill.  This revelation led to a chorus of criticism that Republicans were negotiating in bad faith, already committing themselves to breaking the budget agreement while demanding that Democrats make painful policy concessions in exchange for the funding it provided.  The White House has responded by insisting that its rescissions are not inconsistent with the budget deal and reportedly including only money appropriated in prior legislation.  That is a distinction without a difference:  appropriators determine how much new money a program needs in part with reference to how much carryover it has from prior years.  Whether the rescission nominally covers new money or old, the program will have less funding than was agreed upon in the omnibus appropriations bill.

     House Majority Leader Kevin McCarthy, who underwhelmed far-right Republicans last time he ran for speaker, is clearly using his enthusiastic support for rescissions to buttress his effort to replace Paul Ryan.  Those hoping to outflank him on the right are trying to raise the stakes further.   

     Senate Majority Leader Mitch McConnell, on the other hand, has been openly hostile to moving any contentious fiscal measures this year.  Although a vote on a rescission package could be uncomfortable for red-state Democratic senators up for re-election this fall, the success of such legislation would make it much more difficult to bring Democrats to the bargaining table in September.  Having substantial Democratic support for appropriations bills in recent years has allowed some vulnerable Republicans to vote “no” to appease their bases.  Senator McConnell may doubt whether he can muster a majority entirely from their own ranks to keep the government open after October 1.  And any appropriations bill that can command 218 Republican votes in the House may be so extreme that it weighs down House and Senate Republicans seeking to run as moderates.  Sorting this out with the election just weeks away, and with Members demanding to go home to campaign, would not put their party in the best light.  

Friday, May 04, 2018

The First Amendment in the Second Gilded Age - The 2018 Mitchell Lecture

JB

Here is the video of my April 13, 2018 Mitchell Lecture at Buffalo Law School, entitled "The First Amendment in the Second Gilded Age."

This lecture describes the political economy of free expression in our Second Gilded Age. It explains how we pay for the public sphere in the digital age. I argue that the recent Facebook/Cambridge Analytica scandal typifies the central problem of securing freedom of expression in the Second Gilded Age.

First, the key players who set the basic rules of free expression are not nation states but powerful private actors like Facebook who effectively act as the governors of digital spaces.

Second, free speech is not really free at all. Freedom of speech depends on an infrastructure of free expression, and that infrastructure must be paid for in one way or another.  In the early 21st century, people pay for free speech through a grand bargain only vaguely understood by most people: In return for the ability to speak to anyone at anytime, people agree to increasingly effective and powerful surveillance of their online lives. In short, in the Second Gilded Age, the infrastructure of digital free expression is also the infrastructure of digital surveillance. The two are one and the same.

Near the end of the lecture I discuss possible reforms, including my idea of treating some kinds of digital companies as information fiduciaries.




Thursday, May 03, 2018

A Liar, A Bigot, A Criminal, A Sexual Predator and a Probable Traitor

Mark Graber


The President of the United States is a liar, a bigot, a criminal, a sexual predator and a probable traitor.  That is how I began my talk at the New England Political Science Association’s Annual Meeting on the paper Sandy Levinson and I wrote that was just published by the Chapman Law Review: “The Constitutional Powers of Anti-Publian Presidents: Constitutional Interpretation in a Broken Constitutional Order.”  Let that sink in a bit.  The President of the United States is a liar, a bigot, a criminal, a sexual predator and a probable traitor.  We do not need fancy psychiatric terms to describe Donald Trump or experts to make a diagnosis.  In layman’s terms, he is a liar, a bigot, a criminal, a sexual predator and a probable traitor.

Other politicians tell lies and break laws.  We can have partisan debates over whether Mitt Romney told more lies and more important lies than Barack Obama or whether John Yoo and friends broke more laws and more important laws than Hillary Clinton.  We can have more serious debates over whether constitutional democracy in the United States can survive what has become the “normal” amount of lying and law-breaking by prominent politicians.  Donald Trump is nevertheless different.  He is dimensionally a bigger and more frequent liar than any prominent politician in the United States.  He is the most racist president since Woodrow Wilson, who at least had the excuse of being no more racist than a high percentage of the population at the time.  Trump has violated more laws and a greater variety of laws than any president in American history or any prominent contemporary politician.  Trump’s sexual predation and philandering make John Kennedy appear a choir boy.  He is the only prominent politician after the Civil War who can be seriously accused of being a traitor, making deals with foreign enemies for personal advantage.

“The Constitutional Powers of Anti-Publian Presidents” suggests that constitutional thinking in the United States must take into account that the president is a liar, a bigot, a criminal, a sexual predator and a probable traitor.  Sandy and I reject the “don’t tell the children” approach in 2018 to executive power, that pretends that Donald Trump is no different than Abraham Lincoln or even Chester Arthur, and is entitled to the same deference as presidents who are not liars, bigots, criminals, sexual predators, and probably traitors.  More important, we want to open a conversation about the constitutional significance of a president who is a liar, a bigot, a criminal, a sexual predator, and a probable traitor, as well as a party that is increasingly supportive of that liar, bigot, criminal, sexual predator and probable traitor (while for the most part not denying they are supporting a liar, bigot, criminal, sexual predator and probable traitor).  Part of that conversation concerns whether when a bigot on the campaign trail speaks of a “Muslim ban,” lawyers for the Justice Department may successfully insist that the resulting plan is not really a Muslim ban and other related questions of executive power in the Trump Age.  The more fundamental constitutional issue is whether a constitutional order in which an increasingly number of people are pledging allegiance to a liar, a bigot, a criminal, a sexual predator and a probable traitor can be repaired and what such repairs might look like.

Wednesday, May 02, 2018

The Vice President and the Rule of Law

Richard Primus


There are at least two ways to understand Vice President Pence’s statement that Joe Arpaio is a champion of the rule of law.  One is obvious and the other is subtle.  It’s not entirely clear which reading better captures Pence's intentions.  They’re both bad, but the subtle one is considerably worse.

To lay a piece of groundwork: Joe Arpaio is not, in fact, a champion of the rule of law.  He is a persistent lawbreaker who systematically violated the Constitution and was held in criminal contempt for court for refusing to mend his ways.  So on the obvious reading of Pence’s statement, the Vice President was saying something that’s obviously untrue, presumably with the intention of reaping some political advantage.  He was engaged in political gaslighting.

But there’s also another possibility—a more subtle and more threatening one.  Maybe Pence wasn’t dissembling one bit when he described Arpaio as a champion of the rule of law.  Maybe the Vice President believes what he said.

Like many appraisive terms in law and politics, “the rule of law” sometimes means different things to different people.  It’s a cluster concept with several components, and there is legitimate contestation as to exactly what it entails.  Most of the time, we hope, enough of the participants in the discourse share enough of a sense of what “the rule of law” means that the term is useful when we discuss law or government.  But one of the things that happens in political conflict is that different people attach different meanings to appraisive terms.  The different uses of the terms then reflect the underlying substantive disagreements.

I would like to think that the Vice President of the United States would not regard a persistent and adjudged violator of the Constitution as a champion of the rule of law.  But in the year 2018, and given Pence’s statement about Arpaio, I can’t assume that to be true.  In fact, interpretive charity toward the Vice President—that is, the willingness to think that he might not be lying—requires one to take seriously the possibility that Pence actually believes Arpaio to be what he says Arpaio is: a champion of the rule of law.

And it’s conceivable that he thinks that.  In particular, it’s conceivable that Pence (and not only Pence) has a conception of “the rule of law” that is less about the idea that officials must comply with the Constitution—or, more generally, that governmental power is to be exercised within limits set by law—than it is about the idea that people who break the law, or more precisely that people who break certain kinds of laws, are to be punished aggressively.  On the latter view, the real offense to the rule of law (as relevant to Arpaio’s story) comes from people who enter the country illegally and from people who commit various offenses against the peace and order of Arizona.  Arpaio is a champion of the rule of law because he dealt with such people firmly (or, perhaps, because he represents the idea of dealing with such people firmly).  Yes, Arpaio also did lots of bad things even to people who broke no laws.  But that might be less important on Pence’s conception of the rule of law than the need to uphold the legal regime that he sees Arpaio as standing for.  Like "law and order," "the rule of law" might mean, to some audiences, more or less what "tough on crime" means.

I have a different view of the rule of law—one on which governmental authority resides in offices rather than persons and must be exercised within the limits of what law permits.  That’s not the only thing that the rule of law requires, but it’s fundamental.  It’s now open to question, however, whether the Vice President (and not only the Vice President) shares that view.  If we take him at his word, he well might not.

Tuesday, May 01, 2018

The Second Republican Revival

Guest Blogger

K. Sabeel Rahman and Ganesh Sitaraman


As questions of economic inequality have taken center stage in American politics, there has been a growing interest among public law scholars in questions of power, institutional design, inequality, and political economy. Scholars like Zephyr Teachout, Larry Lessig, Yasmin Dawood, and others have used concepts like domination and corruption to diagnose problems of oligarchy, inequality, and the failures of our campaign finance system. Professors Joey Fishkin, Willy Forbath, for example, have explored the concepts of domination and power throughout American constitutional history as a way to conceptualize disparities of both economic and political power and the role of law in redressing those disparities. Meanwhile, scholars like Kate Andrias and Daryl Levinson have taken a functional approach to power, showing how partisanship and wealth subvert the Madisonian constitutional structure. Both of us have engaged in these debates as well, excavating the concept of domination in debates over economic inequality and regulation and arguing that economic power undermines prominent theories of how the Constitution works. We have both also argued (here and here) that economic and political democracy is essential in order to maintain our constitutional system. While encompassing a range of projects, subfields, and approaches, we view this emerging literature as, in part, constituting a second Republican Revival.

Over thirty years ago, a similar burst of public law scholarship expressed a deep interest in republican political thought, engaging with a tradition of political theory running from Roman political thought through Machiavelli, Madison, and more. Several scholars explicitly framed a “Republican revival,” rooting Republican ideas in the American founding and using this reinterpretation to argue for a greater focus on civic deliberation in public law scholarship.  Today’s use of neo-Republican political thought to inform public law scholarship, however, is distinct from the earlier iteration in ways that we think could potentially make it more impactful in current debates.

Read more »

Thursday, April 26, 2018

Why the Court Does Not Have to Second-Guess the President's National Security Decisions in Order to Rule that He Lacks Statutory Authority to Issue Travel Ban III

Marty Lederman

There’s already been a great deal written about yesterday’s oral argument in Trump v. Hawaii.  Most observers have focused on whether, for purposes of the Religion Clauses of the First Amendment, the Court should or must (or will) accept the facially neutral reasons offered for the “Travel Ban III” Proclamation or whether, instead, the Court may—and should—look behind the surface of the Proclamation to determine whether it is, in fact, the product of a presidential design to disfavor Muslims’ entry into the United States, in order to make good on his campaign promises to that effect.

My focus here, however, is on the challengers’ principal argument—namely, that although 8 U.S.C. 1182(f) delegates to the President a great deal of discretion to supplement Congress’s conditions on entry in response to new and unforeseen circumstances, the President has not been delegated the authority to (in Neal Katyal’s words) “take a wrecking ball to the statute and countermand Congress’s fine-grained judgments.”  At several places in the argument, some of the Justices appeared to be uncertain about whether this is, indeed, such a case where the President is countermanding a specific congressional judgment, rather than one in which he is acting to address a new and unforeseen emergency situation involving an emerging threat to national security.  I’d like to offer a few words here to explain why Neal Katyal was right that the Proclamation falls in the first category, not the second—that is to say, why this is not a case in which the courts are being asked, as Justice Kennedy put it, to review a presidential judgment about "whether or not there is . . . a national exigency.”

Katyal’s lead argument, in a nutshell, was this, from his opening:

Congress has already specified a three-part solution to the very same problem the Order addresses--aliens seeking entry from countries that don’t cooperate with the United States in vetting, including “state sponsors of terrorism and countries that provide inaccurate information.”  First, aliens have to go through the individualized vetting process with the burden placed on them [to establish that they are eligible to receive a visa and are not inadmissible].  Second, when Congress became aware that some countries were failing to satisfy the very same baseline [information-sharing] criteria [identified in the Proclamation], Congress rejected a ban [on entry of all nationals of those countries]. Instead, it used carrots [in particular, the Visa Waiver Program]. When countries cooperated, they'd get [a] faster track for admission. Legislation to use big sticks like nationality bans failed. And third, Congress was aware circumstances could change on the ground, so it required reporting to them so it could change the law.

At one point when Katyal was reiterating this argument, the Chief Justice interjected that “it seems to me a difficult argument to say that Congress was prescient enough to address any particular factual situation that might arise.”  What if, for example, the President is privy to “more particular problems in light of particular situations developing on the ground”?  To similar effect was this exchange immediately preceding the Chief Justice’s remarks, among Katyal and Justices Alito and Kennedy:

JUSTICE ALITO:  Can you imagine any situation in which the threat of the infiltration of the United States by terrorists was so severe with respect to a particular country that the other measures that you have mentioned could be deemed by a President to be inadequate?

MR. KATYAL: Yes, I can. And the President would have a robust authority to deal with that. That is not our argument.

JUSTICE KENNEDY: And your argument is that courts have the duty to review whether or not there is such a national exigency; that’s for the courts to do, not the President?

MR. KATYAL: No. I think you’d have wide deference [to the President], Justice Kennedy. . . .  Presidents have wide berth in this area . . . if there's any sort of emergency . . . .  But when you have a statute that considers the very same problem and there’s nothing new that they’ve identified in this worldwide review process that Congress didn’t consider—exactly the same types of things: it is a perennial problem that countries do not cooperate with the United States when it comes to vetting . . . .

It appeared, in these and other places in the argument, that perhaps some Justices are under the impression that the President’s September Proclamation identified, or was predicated upon, some sort of newly emergent or newly discovered “national exigency,” or “particular situations developing on the ground,” such as a “threat of infiltration of the United States by terrorists” so “severe with respect to a particular country that the [statutory] measures Congress has adopted] could be deemed by a President to be inadequate.”

It is very important to understand that that is not this case. 

To be sure, in section 1(f) of the second travel ban executive order, in March 2017, the President made a finding that in light of the conditions in six identified countries, “the risk of erroneously permitting entry of a national of one of these countries who intends to commit terrorist acts or otherwise harm the national security of the United States” was “unacceptably high” until the interagency “assessment of current screening and vetting procedures,” mandated by that executive order, would be completed.  [I am dubious that this finding was based upon any evidence of such a terrorism risk—the President did not cite, or state that he had been made aware of, any such evidence—but that’s not relevant here.]

It is telling, however, that following that extensive, six-month interagency assessment, the President did not, in the September Proclamation, make any findings at all about any new, or unacceptable, risk of terrorism being committed by the nationals of the countries covered by the Proclamation.  This is hardly surprising, given that no one from these countries has killed anyone in a terrorist attack in the United States in over four decades; in the words of the Cato Institute amicus brief, “there is a total disconnect between the countries chosen and countries whose nationals, historically, have committed acts of terrorism or other crimes on U.S. soil.”  

Of even greater significance here, the President's Proclamation also did not find, or even suggest, that the highly reticulated scheme that Congress has chosen to deal with the problem the Proclamation does address—the failure or refusal of some countries to adequately assist U.S. vetting of their nationals—has resulted in any additional harm, or risk of harm, to the national security.  (Even some who have found the Proclamation’s findings to be legally inadequate have missed this point.  Judge Keenan, for example, wrote in the Fourth Circuit case that “[t]he Proclamation merely exclaims that the countries’ faulty protocols create a security risk for the United States.”  But the Proclamation does not say any such thing about the "faulty protocols" creating a national security risk.) 

This is not simply a formalist, “gotcha” point about a failure of the President to intone some magic words.  For one thing, if the agencies had found any basis for believing there were such a heightened national security risk, one can be certain that’s something the President would have been included in the Proclamation, as part of its justification.  For another, the Proclamation would make little sense if its purpose were to prevent the entry of categories of people who pose a heightened risk of terrorism, because it allows the nationals of, e.g., Iran, Libya, and Yemen to continue to enter the U.S. with certain forms of nonimmigrant visas, even though the vetting for such visas is typically less robust than the vetting for immigrant visas that the Proclamation prohibits for such persons.

More importantly, however, the actual, operative effect of the Proclamation itself is not to exclude the entry of nationals, even on immigrant visas, who pose a risk of terrorism—indeed, its overwhelming, if not exclusive, function is to exclude nationals of the covered countries who do not pose such a risk.

To see why that’s so, let’s look at the presidential finding at the heart of the Proclamation.  Section 1182(f) authorizes the President to suspend the entry of specified aliens, or a class of aliens, whenever he finds that the entry of such aliens “would be detrimental to the interests of the United States.”  How would the entry of the aliens barred by the Proclamation be detrimental to the interests of the nation?  In the Proclamation, the President states the following:  “The restrictions and limitations imposed by this proclamation are, in my judgment, necessary to prevent the entry of those foreign nationals about whom the United States Government lacks sufficient information to assess the risks they pose to the United States.” 

Notably, this is not a finding that the entry of the excluded persons in question would be detrimental because they pose a heightened risk of committing terrorist acts.  Concededly, however, it is an assertion that their entry would be "detrimental" because the government lacks the information to assess whether or not they pose such risks.  As the Solicitor General put the point in his opening brief, in explaining how the Proclamation is said to satisfy the 1182(f) condition (and quoting the President’s finding):  Entry of the restricted foreign nationals would be detrimental to the national interest because ‘the United States Government lacks sufficient information to assess the risks they pose to the United States.’” 

Here’s the rub, however:  Even without the Proclamation—that is to say, under the rules that Congress has already insisted upon and that were in place before the Proclamation took effect—if the U.S. government “lacks sufficient information to assess the risks” that a national of the covered countries poses to the United States, the government does not allow the entry of that individual.

This follows from, among other things, 8 U.S.C. 1361, which provides that:

Whenever any person makes application for a visa or any other document required for entry, or makes application for admission, or otherwise attempts to enter the United States, the burden of proof shall be upon such person to establish that he is eligible to receive such visa or such document, or is not inadmissible under any provision of this chapter, and, if an alien, that he is entitled to the nonimmigrant, immigrant, special immigrant, immediate relative, or refugee status claimed, as the case may be. If such person fails to establish to the satisfaction of the consular officer that he is eligible to receive a visa or other document required for entry, no visa or other document required for entry shall be issued to such person, nor shall such person be admitted to the United States unless he establishes to the satisfaction of the Attorney General that he is not inadmissible under any provision of this chapter.

Consider, for example, a case involving exactly the sorts of cooperation inadequacies identified in the Proclamation itself:  Say, for instance, that a national of one of the covered countries applies for a visa, makes application for admission, or otherwise attempts to enter the United States, and his home country has failed to issue him a passport “embedded with data to enable confirmation of identity,” or has failed to respond to a U.S. request for “identity-related information not included in its passports,” or for information that nation possesses about the alien’s “known or suspected terrorist and criminal history.” 

In such a case, because of the country’s failure or refusal to adequately cooperate with the United States, the alien will typically not be able to meet his burden of establishing that he is not inadmissible, and therefore he will not be allowed to enter.  This explains why, even without the Proclamation, the State Department refused to issue visas for aliens from the countries in question at far higher rates than for other aliens (see Cato amicus brief at 22).

The actual effect, and design, of the Proclamation, then, is not, as the presidential finding suggests, to preclude entry of those nationals about whom the Government “lacks sufficient information to assess the risks they pose to the United States.”  To the contrary, it is, instead, to preclude entry of many thousands of the nationals of the countries in question for whom the U.S. government has sufficient information to assess that they pose no such risks—for example, individuals who because of (very young or old) age, or disability, or established opposition to terrorism, cannot reasonably be considered a threat; or individuals who otherwise are able to provide compelling, reliable evidence that they are not inadmissible, despite their home country’s failure to do so; or nationals of one of the designated countries who have for many years been living in a third country in which they have not demonstrated any grounds for inadmissibility, and who have not recently visited the designated country of which they are a national.

The Solicitor General, undoubtedly aware of this extreme mismatch between the problem identified in the Proclamation (the alleged "detriment" to the United States) and the restrictions that it imposes, repeatedly fell back at oral argument on the other rationale mentioned in the Proclamation—namely, that the Proclamations' vast required exclusions, even of nationals who meet the burden of proving that they are not a risk or otherwise inadmissible, are necessary in order to exert “pressure” on the governments in question to improve their cooperation with the United States (i.e., in the words of the Proclamation, “to elicit improved identity-management and information-sharing protocols and practices from foreign governments”).

It is not obvious that such an “inducement” theory satisfies the statutory requirement in section 1182(f) of a finding that the entry of the individuals would itself be “detrimental to the interests of the United States,” any more than it would be the case—to use Justice Kagan’s example from argument—that the entry of Israelis would be “detrimental” to the United States where the President wanted to “put pressure on Israel . . . to vote a certain way in the U.N.” and thus tried to exclude entry of all Israelis in order to accomplish that end.  (In such a case, it’s not so much that the entry is detrimental as that the exclusion is said to be useful to another end, extraneous to the excluded aliens themselves.)

But even if the Court were to conclude that such a “pressure-inducing” rationale might come within the four corners of the terms of section 1182(f), the critical point here is, as Katyal emphasized, that this is not a new problem, or one that has proved to be more acute or consequential than Congress assumed:  Congress has long been well aware of exactly the problem the President identified, and has deliberately chosen not to use an across-the-board “exclusion-of-nondangerous-nationals” method to address it.  Congress has, instead, chosen a different, comprehensive series of steps to induce countries to improve their identity-management or information-sharing policies and practices.  As Justice Frankfurter put the point in the Youngstown “Steel Seizure” case, in explaining how the Congress there had “unequivocally put aside” President Truman’s desired remedy for a labor impasse (seizure of the factories) by enacting an alternative, highly reticulated scheme for dealing with such “potential dangers”:  “[N]othing can be plainer than that Congress made a conscious choice of policy in a field full of perplexity and peculiarly within legislative responsibility for choice.”  “On a balance of considerations, Congress chose not to lodge this power in the President.”

Likewise in this case:  If the President believes that the means chosen by Congress to induce greater information-sharing and identity-management cooperation are insufficient to address the very problem that Congress has already considered, his officers can say so in their reports to Congress, and he can propose legislation to alter the current detailed statutory response.  But there is no new “exigency” here—no new “situations developing on the ground” related to information-sharing and identity-management—that was unforeseen by Congress, let alone any “situation in which the threat of the infiltration of the United States by terrorists was so severe with respect to a particular country that the other measures [prescribed by Congress] could be deemed by a President [or were deemed] to be inadequate” to the task.  Nor has the President even alleged or asserted such an exigency.

This is not, in other words, a case in which the Court is being asked to "second-guess" a national security determination of the President.  The Court could resolve the case simply by holding that although section 1182(f) authorizes the President to supplement Congress's immigration regime in situations where he is presented with evidence that entry of certain aliens would result in harms that Congress did not contemplate, he may not use that delegated power to supplant the decisions that Congress itself has already made with respect to harms that the legislature has already thoroughly considered.

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