Balkinization: Presidential identity and neutral principles

Comments:

As with the doctrine of impeachment, I wonder where the Jacobellis line is here. Nixon in 1974, but not before? FDR in 1945 but not before? Wilson after his stroke? Andrew Johnson at any point? Reagan once Alzheimers set in?

# posted by

Mark Field : 6:45 PM

The problem with arguments like this is that Wechsler wasn't actually wrong about neutral principles.

He was wrong about how segregation related to other forms of racial discrimination. In other words, if the neutral principle was a bar against governmental racial discrimination as set forth in the Fourteenth Amendment, it's easy enough to apply that principle neutrally to reach the right result in Brown. All you have to do is make the proper factual finding that the schools were substantively unequal, which wasn't difficult to do.

But Wechsler was completely right about the need for courts to apply neutral principles. Courts serve a very specific purpose in a rule-of-law based society-- they referee disputes between different actors who not only have different immediate goals and desires but also often have different worldviews.

So, for instance, you have an abortion case, and one side of the case you have passionate defenders and advocates of abortion rights, and on the other side you have people who passionately believe that abortion is gravely immoral and should be illegal. The job of a court isn't, and can't be, to simply decide that one side is correct in that debate. The job of a court is to adjudicate the dispute based on principles that AREN'T the substantive principles in dispute. I.e., to follow the law. To apply a principle that is neutral to the terms of the dispute being adjudicated.

Now, the law in question may favor one side or the other. But it's legitimacy depends on the fact that everyone recognizes it is the law. So if the court finds for the pro-choicers by pointing to some language in Casey that the law violated, the pro-lifers may not like that decision, they may even think that it is wrong, but they aren't likely to see what the judge did as illegitimate-- there's a precedent, there's language, and he made a good faith interpretation of it.

Given that this is the function of courts, there's a pretty hard limit on the "Trump's a bad and dangerous President, therefore we are going to tip the scales" approach. Trump is still very popular with a significant segment of voters. Not a majority, but a significant segment. He is still the legitimate holder of the office of President of the United States. While courts aren't blind, and certainly you can argue that, for instance, the litigation of the second travel ban was influenced by the history of the first one and before that the statements in the campaign, and that's fine as far as it goes, you really can't start striking down stuff that would have been upheld if other Presidents did them. Once you get to that point, courts have abdicated their posture as neutral decisionmakers.

Now, I know, we are all legal realists, and they aren't truly neutral to begin with. But there's still a big difference between subtle reference to politics and open reference to it, and between using neutral reasoning as window dressing and dispensing with the window dressing altogether.

# posted by

Dilan : 7:18 PM

I haven't read the article as yet - and may not because of eyesight limitations. But I have a query regarding Dilan's:

"But Wechsler was completely right about the need for courts to apply neutral principles."

With respect to SCOTUS, have there been analyses, by legal academics and/or political scientists, of its decisions as to the application of neutral principles, both before and after Brown? Marbury v. Madison, an early decision (1803) clearly was not. There have been many writings to the effect that SCOTUS decisions often have a political aspect, presumably due to the appointment process and lifetime appointments. Of course not all cases that come before SCOTUS have political implications, at least on the surface. And I am further interested in whether neutral principles include a particular method for the interpretation/construction of the Constitution. Keep in mind that both the originalism movement and the Federalist Society's emergence in the 1970s seemed to work in tandem due to their claims of Warren Court activism in the eyes of conservatives, libertarian and otherwise. And Brown was the foundational decision of the Warren Court. Few directly challenge Brown today, although events recently in Charlottesville might suggest a shift.

# posted by

Shag from Brookline : 8:03 PM

This comment has been removed by the author.

# posted by

Joe : 8:12 PM

Did Mark Field and Dilan Esper read the article?

Leaving comments open regarding a thirty-five page article probably should assume many didn't read the article. There is too much online to read too many of these things; the blog writer should generally assume people are often here to read a summary of one's position and comment on that.

On some broad level, the "neutral principle" idea is not very controversial. I think the problem there was on application to the facts at hand. I'm not aware of some freedom of association that requires the government to separate the races. Private schools weren't the immediate issue there. Berea College v. Kentucky showed how mandatory segregation laws interfered with that freedom anyhow. I think there was a way to formulate "neutral principles" as applied to Brown.

I skimmed the article. Let's see. Yes, Trump is particularly unqualified and this is shown in ways that can be given judicial notice. This includes specific "publican" qualities. I too wonder about line drawing there per Mark Field's comment.

Okay. I think the article can be shortened; seems some stuff not necessary for its argument. Brown again. I'm not sure how normal procedures of constitutional analysis was altered there. What was in place for years there was that things blatantly unconstitutional was accepted as par for the course. Over time, an opening was present to change that, developing up to Brown. Since segregation by race was at stake, rational basis was not warranted. It wasn't bad faith alone.

Then, NYT v. Sullivan. Was that really "unprecedented"? The case built an argument how principle and precedent warranted that move. As with many a landmark, there was a big move forward here, but that is quite precedented as law goes. The "citizen critic" principle grew over time & past precedent (Barr v. Matteo, e.g.) was used to argue that limited immunity was warranted in this context. The changes in obscenity law was but one aspect of how traditional speech law changed over time here.

The specific concern about applying the new test without a remand is more notable though that happens other times too (I think it wrongly occurred, e.g., in D.C. v. Heller). The bad faith of Southern courts was seen in other cases here though it was a matter of years by that point, not months. Cf. Brown itself.

There are current rules in place regarding determining discriminatory acts and the courts were correct to decide as they did by examining all the evidence. If there is overall reasonable grounds to doubt good faith in such a case, yes, an extra layer of good faith might need to be proven as to administrative decisions. How much this affected the 9CA's judgment is unclear but very well can assume it was a factor. Also, when constitutional rights in general are at stake, an extra layer of concern is often warranted, as would separation of powers concerns.

Reference is made to Trump's lack of concern for details to apply a somewhat higher test for delegation purposes. But, who is in charge there? Isn't the specific secretary the ultimate person in charge? I'm not sure how much is added there. I think using regular procedures various acts of Trump will be deemed illegitimate. Not sure how much this "publican" test, putting aside line drawing concerns (does it apply, e.g., to Ben Carson's actions given his issues?), really helps in the end when we are dealing with court judgments.

# posted by

Joe : 8:12 PM

I think its fair to say that SCOTUS has made quite a bunch of political decisions over the years. The lower courts more so.

But that doesn't mean the Wechslerian ideal is wrong, and it certainly doesn't mean that they should adopt an explicitly non-neutral posture towards Trump and the millions who support him. That would be very bad for the independent judiciary.

# posted by

Dilan : 8:12 PM

To refine Joe's comments about Brown and Sullivan, both of those cases were logical extensions of principles that had been developing through common law legal rulemaking.

In the case of Brown, the Court had already ruled against segregation in various specific contexts, such as law schools. In other words, they were interpreting the "but equal" portion of Plessy much more aggressively. So it wasn't some huge break to recognize that separate schools were inherently unequal-- it was a logical extension of the recent precedents on "but equal" to a situation where the evidence of inequality was very strong.

Same with Sullivan. There were 40 years of free speech precedents that had developed to the law to the point where one of the key principles was that criticism of public figures and officials was at the center of First amendment protection, and could only be suppressed on a showing of manifest danger. The clear and present danger test was finally receiving teeth as well. So here you had a different government mechanism (a libel judgment) that was an attempt to accomplish the same result that the Court had been saying for 40 years couldn't be accomplished directly. That's classic common law rulemaking.

Just because you recognize the utility of neutral principles doesn't mean that constitutional law is fixed or unchanging or you can't recognize reality. We have a common law system-- reality always plays a role. But we still need neutrality as well.

# posted by

Dilan : 8:19 PM

I'd just add that Trump is nominated judges who will be applying these principles in the future.

"Neutral Principles refer to rules grounded in law, as opposed to rules based on personal interests or beliefs. The courts must apply neutral principles to cases. The term ‘neutral principle’ was coined by Professor Herbert Wechsler in his 1959 Holmes Lecture at Harvard Law School. This lecture became one of the most cited and controversial pieces of legal scholarship."

https://definitions.uslegal.com/n/neutral-principles/

I guess perhaps to get a full flavor one needs to read Wechsler's article too but does seem to me the problem there was not the concept but the application.

# posted by

Joe : 8:26 PM

Is it being suggested that neutral principles can change over time such that a SCOTUS decision based upon neutral principles might be overturned in later years by a change in neutral principles? Originalists might have a problem with that.

# posted by

Shag from Brookline : 8:54 PM

I should have said it before, but no I haven't read the article. And now that I'm down that road, might as well go one step further. To wit, I think a lot of Warren Court jurisprudence can be explained by the complete absence of good faith by the Southern judiciary. Even cases like Mapp v Ohio seem pretty strongly affected by a recognition that the Court should be giving less deference in cases where racial attitudes quite clearly were making a mockery of "neutral principles". That's perhaps an argument that might support the article (or might be in there already, me having not read it).

I guess I should state too that I'm pretty dubious about the existence of "neutral principles". It's not as if that's an uncontested view of the judicial process, even if it makes for a persuasive method of argumentation (all too often, in my view, in the service of less-than-honest application, as Joe points out).

# posted by

Mark Field : 9:07 PM

It seems pretty simplistic to argue that the Warren Court was just reacting to Southern intransigence. The liberal sweep was too broad to be explained by that.

Griswold wasn't a reaction to Southern intransigence. Nor was Reynolds v. Sims. Nor was Powell v. McCormick. Nor was Miranda. Nor was Jacobellis.

That court was going left in all sorts of ways. You had two Eisenhower appointees who were pretty liberal, and who ideologically sympatico with several people who were appointed by Democratic presidents. So there was a working liberal majority, including Brennan, who is probably the best justice of the 20th Century. (Before any conservatives scream, remember the definition of a good justice isn't someone who writes colorful dissents that get ignored, or someone with brilliant legal reasoning, but someone who consistently gets his agenda enacted with at least 5 votes. Nobody was ever better than Brennan.) Plus, you had the petering out of the McCarthy era, so it was possible to start ruling against the government in subversive activity cases. You had the breakdown of industry censorship in the motion picture industry as well as the availability of foreign films, which meant there was a heck of a lot of serious cinema that was suddenly out there that contained explicit sexual content and which clearly had artistic value. And, of course, you had the cycle of protest surrounding the Vietnam War (as well as Civil Rights), which meant that the liberal majority had to deal with a ton of important free speech issues for reasons that concerned authorities north as well as south.

I don't discount that the Southern intransigence was a part of the spark, but the 1960's judicial revolution seems pretty overdetermined.

# posted by

Dilan : 9:20 PM

The problem with rejecting neutral principles is that what conservatives wrongly say about originalism actually is true about neutral principles. Unless you try to appeal to neutral principles in deciding cases, you end up with nothing but your politics.

And it's weird that people think neutral principles are so controversial. They get used and applied in non-political cases all the time. Tons of SCOTUS decisions on issues that aren't of massive public concern get decided unanimously all the time. Because the justices are actually trying to follow the law.

98 percent of the time, when I have argued in court, the judges have been trying to follow the law and apply neutral principles. Are they perfect? No. Do they let prejudices seep in? Sure. But they try to apply the law, not just make political judgments about which litigant is right. And I've seen several instances of judges ruling against someone they clearly sympathized with, because they were calling them as they see them.

The central legal realists' claim- that neutral principles are window dressing and that in cases judges really care about, they put in their politics and merely justify their decisions with neutral principles, is absolutely true. Indeed, one of my favorite law review articles was written by none other than Jack Balkin, called the "Crystalline Structure of Legal Thought", was all about how there was always a legal principle available no matter what result you wanted to come to. That's all true.

But the window dressing nonetheless matters, and getting rid of it wouldn't make the courts better. It would make them worse, because the window dressing is what preserves the legitimacy of the courts as decisionmakers.

# posted by

Dilan : 9:32 PM

Good Heavens.

Sandy, I will try to be a delicate as possible, but how on Earth did you manage to publish this hysterical political screed in a law review as a "Legal Studies Research Paper?"

There are only three constitutional qualifications for the office of POTUS: (1) a natural born citizen, (2) of at least 35 years of age, (3) for whom a majority of electors voted. Approval by our mandarin caste is not a constitutional qualification for office nor does their disapproval make a President a "constitutional failure."

Let us be perfectly clear.

For the purposes of this discussion, the correct adjective for describing Presidents is "progressive," not "Publian."

Your problem is not with the "character" or "virtue" of the POTUS, but rather with his ideology.

What you are really proposing is, just as progressive courts grant deference to progressive Presidents to impose unconstitutional policy, such courts should exercise an unconstitutional veto over "anti-progressive" Presidents in their exercise of normally constitutional executive powers.

Consider this: If the judiciary exercise your proposed unconstitutional veto over "anti-progressive" Presidents, why exactly should such Presidents continue to obey judicial rulings?

Be very careful for what you wish.

# posted by

Bart DePalma : 10:08 PM

So SPAM is classifying President Trump as a "progressive"? All presidents as "progressive"? And what is Trump's "ideology" in SPAM's view? Trump has no ideology other than being the ultimate selfish libertarian/libertine. SPAM is intellectually blind in the case of Trump because the problems with Trump relate to his character and lack of virtue. Once again SPAM reverts to his Chicken Little stance with his hysterical screed: "The Sky Is Falling, The Sky Is Falling! They're coming after "anti-progressive" President Trump." So SPAM tags Trump both as a progressive and an anti-progressive. And there's very little about Trump so far that's "normally."

SPAM should go back to beating the political drums for his mentor Tom-Tom Tancredo if he runs for Governor. They make a colorful pair in many ways.

# posted by

Shag from Brookline : 11:12 PM

SPAM's closing at his 10:08 PM screed:

"Be very careful for what you wish."

may very well be a veiled threat of SPAM's fallback "armed revolution" mode against the federal and state governments. Recall SPAM's boasting of his military credentials and that many of his ilk are trained in the use of weaponry and have the weaponry. Charles Blow's NYTimes column today (8/31/17) focuses on "Trump's Army." Read it with SPAM in mind based upon what he has said in comments at this Blog over the years. SPAM supports President Trump, by SPAM's designation a fascist. Perhaps SPAM can resume his military career, but surely not in Intel.

# posted by

Shag from Brookline : 7:47 AM

Shag:

I don't think the Donald really has any political principles either. But the policies Trump promotes have driven Sandy to the brink of mental illness.

Exactly what character and virtue does the Constitution require of a president and how is that measured? Sandy begged this question, but did not answer it. Instead, Sandy referred to specific policies like Trump's travel stay from Muslim nations occupied by a wartime enemy.

Finally, what Sandy should fear by proposing an unconstitutional judicial veto over executive policy is it will provide a pretext for POTUS to ignore the judiciary and turn the office into even more of a dictatorship. Try reading for content.

# posted by

Bart DePalma : 8:59 AM

SPAM's hyperbolic reference to "the brink of mental illness" is more applicable to SPAM, although some might say SPAM is beyond the brink in SPAM's accompanying Trump's brinksmanship.

As for reading for content, that's a difficult task with the incoherency of SPAM's 10:08 PM screed. Our own dyslexic tag team of Bert and Brat have attempted this "mental illness" tactic on other recent posts of Sandy at this Blog without success. Sandy keeps coming back ever alert and healthy. But it should be pointed out to SPAM that Sandy coauthored the article with Mark Graber, a giant in more ways than one.

SPAM's silence on Trump's Army and whether he would sign up speaks loudly, especially with the backdrop of the recent events in Charlottesville.

# posted by

Shag from Brookline : 10:44 AM

Shag:

Trump has an army? This should be good...

# posted by

Bart DePalma : 10:54 AM

Speaking of context, apparently SPAM did not bother read Charles Blow's NYTimes column I referenced in my 7:47 AM comment. SPAM has become a dyed in the wool Trump lemming.

# posted by

Shag from Brookline : 11:04 AM

This comment has been removed by the author.

# posted by

Joe : 11:33 AM

Speaking of "neutral principles," originalism is argued to set forth one.

Eric Segall challenges this in a recent post: http://www.dorfonlaw.org/2017/08/lost-in-construction-zone.html and in comments cites a few articles to flesh out the arguments. For instance: http://scholarship.law.gwu.edu/cgi/viewcontent.cgi?article=2519&context=faculty_publications

Anyway, of course, Shag was a witness to the whole Brown, Herbert Wechsler (and Learned Hand) etc. controversy.

And, I found a copy of the Wechsler article on JSTOR. A lot of it seems fairly straightforward stuff. Neutral principles are defined as "by standards that transcend the case at hand." I gather that sort of thing is taught in law schools daily. Midway he seems to support a non-originalist, common law approach to applying the text. But, common law is filled with general principles applied to each case.

He notes that "value choices" are being made, but in the nature of courts. With apologies to Prof. Segall, that's true enough, even on the Supreme Court (sic) level. [Segall argues the Supreme Court is not really a "court."] In the examples section of the lecture, HW first complains about summary reversals citing a First Amendment case that he argues does not show its work. That's fine -- I am upset myself sometimes when the Supreme Court does that with its orders.

He then deals with the per curiam reversals applying Brown to public accommodations like beaches and such. Brown did make broad arguments as to the wrongs of segregation but it did focus specifically on education. So, there is a reason to be upset that the Supreme Court -- if perhaps prudentially sensible -- handled the cases this way as if education was not specifically so important after all.

The problem ultimately is the last section of the lecture when he applies his fairly non-controversial arguments to specifics of cases, including the appropriate "values" to apply and what they will lead to by a rightful application of doctrinal principles. In the Trump case, it would not be the overall value of "neutral principles" that is problematic; applying them, we see a failure to see that the facts on the ground require certain results. It is not "because Trump" that the travel ban is problematic. It is the details of the ban, including its creation.

The person matters here but as seen in the opinions, that isn't novel in applying the principles involved (see, e.g., the Ten Commandments case that turned on purpose or the Defense of Marriage case where the purpose and effect of the measure factored in).

# posted by

Joe : 11:37 AM

Shag:

I read few op-eds in general and almost none in the DNC house organ NYT.

# posted by

Bart DePalma : 11:58 AM

I got through the first part of the article, but had to stop shortly after it became clear that the statement "President Donald Trump lacks every constitutional qualification for office save that he was elected consistently with the rules set out in Article II of the Constitution of the United States" was meant without irony.

Having a Council of Guardians approve the candidates who can be President does work, as Iran has demonstrated - but our system, unlike Iran's, is justified as being based on democracy...and that doesn't mesh well with a Council of Guardians.

It's interesting in a sense, because Trump clearly is the kind of candidate that the Framers would have been appalled by and hoped to prevent by mechanisms such as the electoral college and restriction of the franchise. Later, the parties would have largely prevented this kind of candidate through the insider controlled nominating process. As all of these mechanisms have been vitiated in the name of democracy (and I would I imagine that Professor Levinson applauds this vitiation), one winds up reaching for others. Since one can no longer control the electorate the result is that one seeks to control the outcome...but that is equally undemocratic and unsustainable.

The same factors that made those other control systems fail will also make this one fail. The question would be whether it takes the court system down with it. Your proposal changes courts from ostensibly neutral arbiters to explicitly biased political players. If courts are political players it is hard to see why they are exempt from democratic controls, not why they should be particularly the province of lawyers.

Moreover, to the extent your argument is that Trump and his supporters don't respect existing Constitutional norms, why should they respect this new one which is explicitly designed to operate against them, only? (And, of course, it really is the case that a significant fraction of the country thought that our last President was illegitimate; so this is the kind of game that both sides will play... a fact which seems to be lost on the Levinsons and court-packing Tushnets of the world.)

# posted by

Who me? : 12:25 PM

I share various of the concerns of "Who Me" but "explicitly biased political players" seems a tad unfair.

The argument to me is that by some objective test (usual complaints about them can be added) Trump fails a bare minimum test of legitimacy so the usual presumptions of constitutionality etc. should not apply. See, e.g., a showing of animus removing the broad discretion that "rational basis" usually supplies.

Trump is someone the Framers (using ideas that aren't somehow novel here; the basic arguments can be made by the average schlub these days) feared and there are checks in the system to deal with a person like him that gets thru. Other than this proposal.

# posted by

Joe : 12:42 PM

Joe: The argument to me is that by some objective test (usual complaints about them can be added) Trump fails a bare minimum test of legitimacy so the usual presumptions of constitutionality etc. should not apply.

Given that "legitimacy" is a subjective measure which is nowhere required by the Constitution, how could such a test be anything but unconstitutional and political?

# posted by

Bart DePalma : 1:11 PM

Joe:

You have the same reaction to Wechsler that I do.

I honestly think that a lot of people get so caught up in a pose of extreme legal realism these days, seeing the results of some very high profile 5-4 Supreme Court cases, and in doing so they ignore that you really wouldn't have a legal system at all if that was the entire story, and you certainly wouldn't have a system whose independence anyone would respect.

Wechsler's article is celebrated, cited, and widely read 60 years after its publication (and how many law review articles can you say that about?) because despite the many flaws in his analysis of particular cases, he nonetheless articulated something real and important about the rule of law.

# posted by

Dilan : 1:23 PM

Having a Council of Guardians approve the candidates who can be President does work, as Iran has demonstrated - but our system, unlike Iran's, is justified as being based on democracy...and that doesn't mesh well with a Council of Guardians.

I'm not so sure about this. The original stated purpose of the EC, after all, was to function much like a "Council of Guardians". It never has worked that way -- it failed even with Aaron Burr, after all -- but not because the Framers saw it as inconsistent with our system.

What the elections in 2000 and 2016 show, to me, is that the EC is in fact inconsistent with democracy in ways which prove that this particular check on democracy is a bad thing. In both elections the popular majority made the better choice.

In defense of Prof. Levinson's proposal, which I'm not at all sure I favor, the courts have proved to be a better check on popular majorities than the EC. They've been far from perfect, and the current Court seems an unlikely candidate for checking majority rule in appropriate ways, but they have improved our society in the long run. In addition, the courts already have to decide how much deference to give to the executive. Their proposal simply recognizes this fact and applies it to unusual facts.

So I think there's an argument there, and I understand the motivation in the current crisis. I still think there are better options, but they might take a while to play out and I'm not sure they will. If they don't, then I suspect we're screwed regardless of what the courts do.

# posted by

Mark Field : 1:30 PM

Given that "legitimacy" is a subjective measure which is nowhere required by the Constitution, how could such a test be anything but unconstitutional and political?

More conclusion than argument here, perhaps.

# posted by

Joe : 1:36 PM

I don't really see that the article said anything special as to the whole "neutral principles" aspect. It seems that it was in part a reply to Learned Hand's lectures (which were a tad overblown too for effect from what I can tell by reading about them, perhaps as with Shag, he felt he was at that time in his life when he could just vent without a careful filter at times) and in general strong criticism of the courts in the 1950s. He makes basic points pretty well, and kudos, but he confuses things too. His confused application of his principles seems to be at least half of why he's remembered, as seen by the reference in the article in question.

# posted by

Joe : 1:41 PM

Joe:

More like fact.

The Constitution nowhere requires "legitimacy" as a qualification to serve as POTUS.

Thus, Sandy is discussing political legitimacy, which is...well, political.

# posted by

Bart DePalma : 1:46 PM

And probably a topic which, given how widely popular his own views aren't, he should hope doesn't gain much importance. He's much more likely to get what he wants through a formally legitimate than politically legitimate process.

# posted by

Brett : 3:55 PM

Brat and Bert oft times comment spouse-like, with one finishing the thought of the other. Bert refers to "his" and "he" I assume in follow-up to Brat's closing sentence to reference Sandy even though their comments were separated by just over 2 hours.

I note that Brat refers to "political legitimacy" and Bert picks up with "a formally legitimate than politically legitimate process." This hand-puppet method is amusing to a certain extent but political and politically have been intertwined with the Constitution from almost its beginning. During my lifetime the three branches of the federal government have been political. That's not new, going back to at least Marbury v. Madison despite what the Framers had in mind.

Harvey is considered a 500-year storm in the 6,000 years of the Revengelicals earth. The Constitution is only 230 years old. What kind of a constitutional storm is the Trump presidency? Many ask, including whether it is a constitutional crisis. The dangers of a Trump presidency were well know to all who paid attention during the long 2016 campaign (although even more dangers have surfaced since January 20th). The dangers of the Nixon presidency were not fully known in 1968 being exposed to sunlight after his overwhelming election to a second term with the revelations of Watergate. Technology provided advance notice of the potential dangers of Harvey. As yet we don't know the full extent of damage. We're learning every day more and more about the dangers of Trump in the first 8 months of his term. Reactions to Sandy in 2012 were political in nature. Perhaps reactions to Harvey will also be political in nature. We survived Nixon. We survived both Katrina and Sandy and hopefully will survive Harvey. As to Trump, the jury is still out. Others than Sandy (Levinson) have questioned how we can survive the Trump presidency, and if so, what that survival will be like. It is appropriate to raise any legitimate process in this regard, including both formally and politically. This is not a call to arms. So, Sandy, although I may not agree with all you say, I'm glad you've said it.

# posted by

Shag from Brookline : 4:54 PM

Sandy is grinding out one hysterical post or paper after another warning Trump is an existential threat to "norms" of government. Shag is comparing the Donald to Hurricane Harvey.

Serious question to the Democrats here: What are you afraid of?

To date, Trump appointed Justice Gorsuch, reversed a handful of Obama decrees, and enacted a temporary travel stay on a handful of Muslim nations which make up a tiny fraction of immigration into the country. The Donald has demonstrated even less ability than Obama to assemble coalitions in Congress to enact his proposed legislation. His repeal of Obamacare failed. Nothing else has come close to a vote.

I just do not see the threat to the progressive status quo. To this libertarian conservative, the Trump Administration is Exhibit 1 that our representative democracy is broken and we desperately need an Article V convention of the states to reform the government.

Enlighten me as to the source of your fear.

# posted by

Bart DePalma : 5:07 PM

It's obvious that enlightenment is beyond SPAM' ken One nee only search back through the Archives of this Blog for SPAM's displays of hysteria and hyperbole in the manner of Chicken Little during both the Bush/Cheney and Obama Administrations and his Humpty-Dumpty efforts to explain his meanings of words he used are classic [sick!]. SPAM's comments particularly during Obama's 8 years revealed his fear and panic. Recall what FDR said about fear. America worked its way by not caving into fear. I certainly don't fear SPAM with or without his Glock in his jock. As I have noted in the past on several occasions the only redeeming feature of SPAM is that his vile genes will not be passed on. Perhaps SPAM could enlighten us on why he apparently thinks America is becoming great again.

Sandy has been at the forefront of political dysfunction that followed the Bush/Cheney Administration and its 2007/8 Great Recession. Sandy deserves great credit in legal academia for his contributions on such dysfunction. Jack summed up much of what has led to the current situation. The dysfunction continues even with control of all branches of the federal government in the GOP. Hopefully at some point the political climate will improve. So far it hasn't. SPAM seems giddy despite or because of his:

"To this libertarian conservative, the Trump Administration is Exhibit 1 that our representative democracy is broken and we desperately need an Article V convention of the states to reform the government."

But Sandy has long been suggesting this and there have been extensive threads on this Blog on posts by Sandy by "We, The Usual Suspects" without coming to a consensus, just like there has been no consensus regarding political dysfunction. Recall the posts by Sandy on secession by one or more states, even one fairly recently where once again "We, The Usual Suspects" could not come to a consensus. Sandy presents ideas. We don't always agree but Sandy gets us thinking. We don't have to destroy the village to save the village.

Besides not understanding enlightenment, SPAM draws a blank with metaphor. Harvey is an act of God whereas Trump is the product of the Revengelicals. There's an interesting story out there today relating Mr. Trump and Mr. Osteen in connection with Harvey. SPAM can continue to cast aspersions on Sandy but that doesn't work. Sandy will continue to use his skills in the law and political science so that we shall continue to think about resolving the continuing political dysfunction whereas SPAM (aka NOAGN*) will surely continue in his troll role.

*NIT ON A GNAT'S NUT

# posted by

Shag from Brookline : 8:09 PM

And let me add that Mark Graber's posts at this Blog are also appreciated by me. Mark, Jack and so many lawyers and political scientists, in addition to Sandy, contributed greatly to the political dysfunction symposium held a few years back at BU Law School. I attended most of the presentations (excepting during the usual Thursday liberal - some progressives - that I attended today as well) with challenging views. Nothing was resolved but the conversations continue even to this day. I imagine an Article V convention would be contentious in comparison I passed on some of my thoughts on the symposium in timely comments on several threads at this Blog. You could look it up in the Archives.

# posted by

Shag from Brookline : 8:35 PM

Talking about conventions, voters in NY have to decide this November if they want one to take make changes to the NY Constitution.

# posted by

Joe : 8:37 PM

"What the elections in 2000 and 2016 show, to me, is that the EC is in fact inconsistent with democracy in ways which prove that this particular check on democracy is a bad thing. In both elections the popular majority made the better choice."

One thing about legitimacy and elections that applies to both the EC and superdelegates in the Democratic primary is that the absolute worst look is to go to all the trouble of having a vote and then have some group of people come in and ignore the result.

That's why the EC can't act as a check. Because you can't have a $3 billion presidential campaign, with everyone watching the debates, putting up lawn signs, taking time off from work to vote, and then say that even though Trump won enough states to put himself over the top, the electors met and gave it to Clinton anyway. Just like the superdelegates-- they can't actually perform the function of overturning a primary delegate count, because if they did, it would be enormously upsetting to the people who were told that they needed to vote and that their votes would decide things.

For anti-democratic checks to work, the rules have to be known in advance and they can't be overturning a result that was produced by asking the public to go to the trouble of paying attention and voting. E.g., the Supreme Court can certainly overturn a president's actions on constitutional grounds, and can even intervene in an election close enough to be a tie, but it can't just flat overturn the elector count and put the other person into office.

This is basically the ultimate cost of democracy.

I think we should get rid of the EC entirely and just do a national popular vote. But if we are going to have an EC, it has to work the way it does now, as a formality. You can't ask people to invest all their energies into a presidential campaign and then say this group of 500 people said you were wrong and put their person in instead.

# posted by

Dilan : 11:33 PM

It's hard to even get past the abstract without spraining your eyes rolling them. It's just a plea that, somehow, nobody Sandy REALLY dislikes should be allowed to exercise the powers of the Presidency, even if they're elected President. Even though nothing in the rules say that, and Sandy would be horribly outraged if the other side of the political divide contrived to treat a President he liked that way.

Dilan, I agree with you. The E.C. must be nothing more than a counting convention, or if it is to be more, that must be clearly announced in advance.

As a counting convention, it is merely a compromise between the principles embodied in the Senate, and in the House: Representation by state, vs representation by population. This compromise was central to the creation of the Constitution, the Constitution would not have come into being without it.

I would say that, were it to be abolished, it should only be as part of a total restructuring of the Constitution, with the states that don't like the result free to leave without prejudice.

# posted by

Brett : 6:13 AM

Bart doesn't get what people are afraid of, I think, because of his tendency to see everything through an a priori defined lens of economic programmes being the essence of everything. So when Bart looks at the fascism that menaced the world in the 1930's, he doesn't see what worried and horrified the world about them: the militarism, the chauvinism, the nationalism, the bigotry, the worship of 'manly violence' or the extreme upending of civil liberties as the essence of it (of course not, he himself holds most of these positions). He sees the economic programme and its departure from laissez-faire capitalist ideology as defining (of course, the rest of the world left that behind at that time as well).

So Bart's naturally puzzled at why anyone could be concerned that Trump's bigoted, nationalistic, chauvinistic rhetoric and casual disregard for civil liberties to meet such goals concerns people.

I think though that Sandy is getting at something else. Above all else Trump gives an air of non-seriousness to his administration, that it's ruled on impulse rather than the careful deliberation, whether for ends of the right or left, that tended to characterize the more professional administrations that came before it. Therefore the usual presumption by the judiciary that the executive's motives and decision making processes have been careful and honestly arrived at seem unwarranted and appear to be especially ridiculous judicial fictions.

# posted by

Mista Whiskas : 7:16 AM

"For anti-democratic checks to work, the rules have to be known in advance and they can't be overturning a result that was produced by asking the public to go to the trouble of paying attention and voting."

"The E.C. must be nothing more than a counting convention, or if it is to be more, that must be clearly announced in advance."

This is silly. Everyone who can read can see that the EC can most certainly act as a check on democracy (interestingly, Brett seems to suggest that the EC should be administered with an extra-textual element of...norms!). The Founders built several such checks into the system, they were suspicious of democracy in many ways. Every day the Senate acts in ways that counter the votes of people who put yard signs up in their yards and vote.

# posted by

Mista Whiskas : 7:29 AM

"It's just a plea that, somehow, nobody Sandy REALLY dislikes should be allowed to exercise the powers of the Presidency, even if they're elected President."

No, that doesn't seem correct. We blogged here long enough to remember that Sandy really didn't like Bush as President, but he didn't talk about him like that.

I think it's a bit obtuse or bad faith for people to act like Trump isn't something different on the scene. Trump himself would say he is, though in a different way. Compared to Presidents in the modern era, he's unusually 'unprofessional' in his manner, and prone to unusually openly egoistic comments. I think for those who work and live in professional environments he understandably startles them, and the idea of someone like that as the executive of the free world rightly gives them pause regarding the powers, especially the less checked ones, of that position.

# posted by

Mista Whiskas : 7:43 AM

Mr. W: So Bart's naturally puzzled at why anyone could be concerned that Trump's bigoted, nationalistic, chauvinistic rhetoric and casual disregard for civil liberties to meet such goals concerns people.

My friend, who was it that compared Trump's 2016 campaign rhetoric to Hitler in the early 1930s?

That being said, I am far less concerned with words than I am acts. Obama was a perfectly reasonable fellow on the campaign trail. My problems were with his governance.

Is there anything Trump is doing or proposing to do as POTUS which concerns you?

# posted by

Bart DePalma : 9:00 AM

It should never be forgotten that in the Republican debates Trump trounced the Republicans' cream of the crop sweet 16 (17?) candidates. Trump attracted the so-called Forgotten, the Opioid-Heads, the Revengelicals in his base, a so-called populist movement, that carried him through a narrow EC victory despite a walloping popular vote loss. But has President Trump governed as a populist? What's the evidence of populist performance? Consider the anecdote of Treasury Sec'y. Mnuchin's Scottish princess bride and her recent "Let them eat Haggis" retort to one who challenged her product commercializations on an official government business trip to Fort Knox to make sure its stash was not eclipsed. Mrs. Mnuch emulated Marie Antoinette while Mr. Mnuch reveled in Trump's Golden Rule: "He who has the gold rules." While Trump (via Gen. Kelly) got rid of The Mooch, his Cabinet is loaded with Mnuches who, inter alia, want to deprive many millions of people of health insurance, all anti-populist sentiments. And Trump's tax plan, based on what is known so far, will endow the wealthy with tax cuts, expanding inequality further. Populism?

By the Bybee [expletives deleted], check out Kellyanne Conway's tribute to Trump on Pat Robertson's TV show on Trump's greatest trait: "humility." Conway was doing standup on the White House lawn.

# posted by

Shag from Brookline : 9:11 AM

SPAM in his 5:07 PM comment set forth this as Trump's accomplishments as President:

"To date, Trump appointed Justice Gorsuch, reversed a handful of Obama decrees, and enacted a temporary travel stay on a handful of Muslim nations which make up a tiny fraction of immigration into the country. The Donald has demonstrated even less ability than Obama to assemble coalitions in Congress to enact his proposed legislation. His repeal of Obamacare failed. Nothing else has come close to a vote."

SPAM in his 9:00 AM response to Mr. W reminds us once again:

"That being said, I am far less concerned with words than I am acts.

There have been few "acts" by Trump in his presidency of some 8 months, as recognized by SPAM. Of course there has been a Tsunami of "words" by Trump pre-2016 campaign, during that campaign, and continuing into his presidency. SPAM is not concerned with these words, assuming he has heard them. (I have no doubt that SPAM has heard loud and clear Trump's "dog whistles" and has no problem with them.) SPAM closes with this question to Mr. W:

"Is there anything Trump is doing or proposing to do as POTUS which concerns you?"

What Trump as POTUS has been proposing is by means of "words," for which SPAM claims to have no concern, as SPAM judges a person by his actions not his words. Obviously SPAM is concerned what others think of Trump's words though SPAM is not concerned.

I heatedly await Mr. W's response as Mr. W once again serves SPAM SPAM's own derriere.

# posted by

Shag from Brookline : 9:32 AM

The text says that electors should be chosen -- "in such Manner as the Legislature thereof may direct" (pledged?) -- with the numbers decided by their delegation in Congress. Then, in each state, they choose two people. The numbers are counted by President of the Senate & the winner is President, the runner-up VP. No majority throws one into the House, the other the Senate. The 12A altered this somewhat.

This is the text. It was a general expectation of many that voters would give some discretion to electors, an elect group above the more local and less informed/state favorite son friendly average voter, but that isn't compelled by the text. I appreciate, in part influenced by developed current practice (as is the case with many constitutional provisions, such as equal protection) some original understanding of some is not the test here.

Anyway, it was soon shown the electors would be pledged to party candidates, and by the early 1800s, some independent elector principle was readily understood to be obsolete. Since long precedent is in place, yes, if we are suddenly going to have electors to be independent actors, it should be known when they are chosen. As it is, the system in place makes slots for electors to be mostly party favorites who are chosen to be automans. Without the 17A, a similar pro forma process was likely to arise in appointing senators, and already was starting to be.

The electoral vote approach is basically in place now as a federalism matter, the independent elector idea tossed by practice, slavery most abolished by the 13A, democracy much more important as well. The text leaves open some independent elector scenario, but then the war clause leaves open invading Canada. So far, only one of those things actually happened under the Constitution.

# posted by

Joe : 9:42 AM

This comment has been removed by the author.

# posted by

Joe : 9:50 AM

Shag:

A fifth grader can distinguish between campaign rhetoric like promising to "repeal and replace Obamacare with something terrific" and proposing actual legislation.

You could legitimately observe that the Donald never proposes actual legislation, which again leads back to my original question: What are you afraid of?

# posted by

Bart DePalma : 9:55 AM

(To be careful, a few electors were "faithless," but it never really mattered. For instance, a D.C. elector put forth a null vote in 2000 but would not have if the election turned on that vote. The few that did in 2016 in effect did so symbolically. The usage of human electors is now basically ceremony, which has some value, I guess.)

Last December, btw, a few thought things were so desperate that we should have used the opening to have independent electors stop Trump. Over our history, desperate times sometimes left open desperate measures, but moot point really -- it was a pipe dream given the electors simply are not appointed to make that a likely result. At least, when the Republican Party as a whole saw Trump as a legitimate winner.

# posted by

Joe : 9:55 AM

I's sure that Brett will note SPAM's suggestion that Trump's base of voters is at less than the "fifth grader" level. What of Trump's campaign rhetoric did his base swallow in following their leader besides the racism? Presidents often lead by proposing legislation. So SPAM seems to agree that Trump is incompetent as a leader, at least so far. I'm sure Brett will take note of this as well. Apparently SPAM is not afraid of a leaderless presidency and will stick his head in the sand until Trump actually proposes legislation. Of course, legislation is proposed with ,,, [drum roll] ... "words."

# posted by

Shag from Brookline : 10:20 AM

I appreciate Mr. W's comments as to Trump including taking him at his word.

A major reason he supposedly was a good choice is now sort of hand-waved, including his statements that he would not be controlled by usual norms and practices, but will make things great with his skills in deal-making etc. if left to do so.

The proposal here to me is somewhat misguided but it makes sense that if you have such a different character that he would be handled somewhat differently institutionally. My argument is that you don't have to change things to do that. The resources are already there as are when a law is determined to be based on animus.

# posted by

Joe : 10:46 AM

Shag:

Trump was never my candidate and he has proven to be even more incompetent as a political leader than I anticipated from someone so inexperienced.

That being said, if Trump does nothing more for the rest of his term, his appointment of Gorsuch to the Supreme Court and withdrawal from the Paris Accord made him the lesser of the two evils running in 2016.

# posted by

Bart DePalma : 10:53 AM

"No, that doesn't seem correct. We blogged here long enough to remember that Sandy really didn't like Bush as President, but he didn't talk about him like that."

Sandy disliked Bush, but there was only one "really" involved. ;)

"This is silly. Everyone who can read can see that the EC can most certainly act as a check on democracy (interestingly, Brett seems to suggest that the EC should be administered with an extra-textual element of...norms!)."

We're a bit beyond norms here; Every state legally binds their electors to vote as they were selected to. That's "law", not "norms".

There was quite a push last year to try to get electors to violate those laws. Death threats were involved. But everybody knew that they were urging the electors to act illegally.

Bart, I'd agree; I never really saw Trump as anything but a lesser evil in the general election, and I expected a bit more managerial competence of him. (But perhaps I just underestimated the extent to which the deep state and Republican establishment would continue sabotaging him even after the election.)

But he has delivered some important things, and I expect he'll continue to do so. If he weren't, he probably wouldn't be subject to quite so much vitriol.

# posted by

Brett : 11:03 AM

As I suggested above, the courts already have tools for dealing with bad faith actors, whether legislative ("animus"; discriminatory purpose) or executive ("abuse of discretion"). I doubt they need do more than apply those tools.

# posted by

Mark Field : 11:21 AM

The problem is that the courts are perfectly capable of being bad faith actors, inventing excuses to take from the legislature and executive decisions those bodies are actually entitled to make.

I think that's actually what happened in the travel ban case.

# posted by

Brett : 11:40 AM

We're a bit beyond norms here; Every state legally binds their electors to vote as they were selected to. That's "law", not "norms".

Under Mr. W's argument, said states would be doing so unconstitutionally, which is not the supreme law of the land. Anyway, every state does not bind their electors.

http://www.fairvote.org/faithless_elector_state_laws

(I saw another article with a somewhat different count.) Most of these binding states don't provide a penalty if the elector is faithless.

# posted by

Joe : 11:40 AM

"The problem is that the courts are perfectly capable of being bad faith actors, inventing excuses to take from the legislature and executive decisions those bodies are actually entitled to make."

I don't think the courts are often "bad faith" actors though do think they from time to time, in good faith, make bad decisions. Shelby v. Holder would be an example where they mistakenly took power from the legislature. Some of my fellow travelers are inclined to think they "invented" a reason and did so in "bad faith," but I'm inclined not to assume that. Anyway, it doesn't get me that far if I did.

# posted by

Joe : 11:44 AM

Our dynamic dyslexic duo, hand-puppets Brat and Bert, seem to now be laying Trump-regrets, as they seem to be climate change deniers (in the company of Trump) and Pres. Trump's Paris Accords withdrawal as a positive accomplishment. The regrets they now recognize were apparent to many based upon Trump's words, which Brat doesn't swallow but Bert did. The lesser evil views of Brat and Bert are shallow. And Bert can't even agree that Trump has been sabotaging himself and his Administration with the help of some Republicans in Congress. I assume that Bert goes along with Kellyanne regarding Trump's greatest presidential trait: Humility. Or is that a dog whistle for "humiliation"?

# posted by

Shag from Brookline : 11:46 AM

"I am far less concerned with words than I am acts. "

I can buy less concerned with words than acts, but words can still deserve great concern. I don't think there's many fascist acts in history of note that didn't start with words first.

"to take from the legislature and executive decisions those bodies are actually entitled to make.

I think that's actually what happened in the travel ban case."

There's more to some legal cases than whether someone on their face usually has the authority to do act X. A police officer has the authority to pull over cars with tail light malfunctions, but if he does so because he didn't like the race of the driver, for example, it's not kosher. Trump's problem was that his and his surrogate's campaign statements indicated a motive that wasn't kosher (or maybe halal?).

"Under Mr. W's argument, said states would be doing so unconstitutionally"

joe, I myself would like to think these laws are allowed, but I'm not persuaded an originalist could so conclude.

# posted by

Mista Whiskas : 12:42 PM

All 3 branches are perfectly capable of acting in bad faith. Ideally, the other 2 would check such actions. The real problems arise when the courts fail to check bad faith actions (say, under segregation or Korematsu).

My point is that such power already exists in the courts under long-standing doctrines. They don't need to invent any new doctrine.

# posted by

Mark Field : 12:51 PM

Professor Levinson,

I skimmed the paper very quickly, but I did check to make sure my problem with it isn't addressed there. My problem is this. You say that Publius said the President would have certain qualities because the system the Constitution set up ensured that he would. That system, though, was changed in the Twelfth Amendment, and most fundamentally, it was changed when electors in the Electoral College stopped exercising discretion and started making selections solely on the basis of the popular vote in their state. Now, we know that "Publius" and his cohorts weren't keen on the popular vote, perhaps for good reason, as they limited popular voting to House elections. And had they designed presidential elections the way they run now, they probably wouldn't be so confident that those elections would produce a Publian President. They also didn't anticipate the breadth of enfranchisement we have today; at that time, property ownership limited voting. So my question is, if we've junked the constitutional system that was designed to ensure the election of a Publian president by amendment, both formal and informal, is it at all correct to say that the Constitution as it exists assumes a Publian president?

# posted by

Asher Steinberg : 1:06 PM

Assuming that it is incorrect "to say that the Constitution as it exists assumes a Publican president," what does that tell us about the continuing viability of the Constitution with the precedent of President Trump? Will it make America great again? Yes, there is a problem when we assume. But it appears with Trump that we do have problems.

# posted by

Shag from Brookline : 1:50 PM

Well, we've gotten along for a while with this system. Levinson mentions and minimizes the example of Harding as a similar sort of case, but, without taking any position on Trump (I'm not a tenured professor or retiree), Harding was quite bad - corrupt, dumb, consumed with extramarital affairs, not respected by his party (he only was nominated as a compromise after much more serious and popular candidates couldn't get a majority at the convention). Our current system also produced a President, in the person of Nixon, with great talent but an astonishing penchant for very serious sorts of criminality, perhaps most shockingly his attempt to scuttle Vietnam peace talks in order to beat Humphrey. Nevertheless, we usually don't elect disastrous Presidents.

# posted by

Asher Steinberg : 2:00 PM

I gathered Mr. W's argument, that one I referenced, was not necessarily his own, but perhaps showing where an "originalist" argument would lead.

Perhaps, Sandy Levinson will provide a short reply to the comments, which overall are helpful. Though everyone didn't upfront say if they read the article.

# posted by

Joe : 2:44 PM

Joe: Perhaps, Sandy Levinson will provide a short reply to the comments, which overall are helpful. Though everyone didn't upfront say if they read the article.

I am very curious on what constitutional basis should and by what means the courts are to measure the "character" and "virtue" of a POTUS to determine if the Court can veto a normally constitutional executive act.

I read the entire article looking for this begged question to be answered.

# posted by

Bart DePalma : 3:00 PM

Before this thread closes, back in the early 1970s when in law practice in my early 40s, I was proud of the legal profession in addressing Nixon/Watergate, and proud of the courts and proud of a semblance of bipartisanship in Congress. Those were difficult times, keeping in mind that Vietnam continued to haunt our nation.

And i was proud of the law professors just a few years back, well into my retirement, in addressing political dysfunction and how to resolve. I was proud of Sandy, Jack, Mark Graber and others at this Blog and throughout legal academia who seriously addressed this issue and in particular its relationship to the Constitution. There did not result a consensus on political dysfunction and it continued with the election and performance - or lack thereof - by President Trump. I'm still proud of the legal profession, including the ones I named. Sandy has been in the trenches all through this and I am pleased that he continues. No one law professor or practicing lawyer can resolve this.

When the Take Care Blog was established, I once again am proud of the legal profession with the efforts of the law professors and practicing attorneys who post there and those at the Blog that provide Daily Updates with links to essays and articles at various sites on various relevant legal topics. Now being longer in the tooth and shorter in the step, I cannot read all of the material made available at Take Care. The cast there does a yeoman job, a cast that included a lot of smart young people, who hopefully over the years will continue their watchdog activities. Article II of the Constitution obliges President to take care of America's business, not his personal business. The cast at Take Care undertakes its tasks as a civic duty. Thank you all. (And there are many other legal blogs doing yeoman work in these difficult times to which Take Care provides links in Daily updates. I thank them too.)

But let me give my special thanks to Sandy who in my view helped to form a foundation for all these efforts of the legal profession that I am so proud of to build on.

# posted by

Shag from Brookline : 4:22 PM