Procedural Implications of the Midterm Elections

David Super

Posted 6:19 PM by David Super [link]

Affirmative action and racial tribalism

Andrew Koppelman

Posted 10:04 AM by Andrew Koppelman [link]

For those of you interested in the actual merits of the Census Citizenship-Question case . . .

Marty Lederman

The parties just filed their post-trial memoranda with proposed findings of fact and conclusions of law, linked below.  Judge Furman will hear oral argument next Tuesday, November 26, and then issue a judgment . . . unless the government seeks a stay in the Supreme Court and the Court, for some inexplicable reason, orders the court not to issue a judgment in the case.

Plaintiffs' Proposed Findings of Facts

Plaintiffs' Proposed Conclusions of Law

Defendants' Proposed Findings of Facts and Conclusions of Law
Posted 12:26 AM by Marty Lederman [link]

"We do not have Obama judges or Trump judges, Bush judges or Clinton judges."

Mark Tushnet

Posted 3:16 PM by Mark Tushnet [link]

Chief Justice Roberts' Press Statement

Gerard N. Magliocca

I'd be fascinated to hear more about how these comments to the Associated Press came about. Surely the Chief Justice must have told someone to tell the journalist to call him for this statement. I doubt very much that intrepid reporters are constantly calling his chambers looking for comments and--at long last--hit the jackpot.
Posted 2:43 PM by Gerard N. Magliocca [link] (60) comments

[UPDATED] The Odd Supreme Court Grant in the Census Citizenship Question Case

Marty Lederman

Two important things happened in that case on Friday.

First, District Judge Furman completed the trial in the case, and scheduled post-trial oral argument for next Tuesday, November 27.

Later that same day, however, the Supreme Court treated the government's pending petition for mandamus as a petition for certiorari, granted the petition, and set an expedited briefing schedule with oral argument scheduled for February 19, 2019.  It's important to understand that the Supreme Court petition is not about the merits of the case.  It was filed before the trial started, and the only question it presents is with respect to the proper scope of discovery.  This is the Question Presented:

Whether, in an action seeking to set aside agency action under the Administrative Procedure Act, 5 U.S.C. 701 et seq., a district court may order discovery outside the administrative record to probe the mental processes of the agency decisionmaker—including by compelling the testimony of high-ranking Executive Branch officials —when there is no evidence that the decisionmaker disbelieved the objective reasons in the administrative record, irreversibly prejudged the issue, or acted on a legally forbidden basis.  

The Court has ordered the government to submit its opening brief by December 17.

This is, I believe, a very strange, almost inexplicable, grant, in light of two things:

First, on October 22, the Supreme Court denied a government motion to stay discovery of matters outside the administrative record (with the exception of the deposition of the Secretary of Commerce, which therefore did not occur).  The Solicitor General then made another motion to stay the district court proceedings, and once again, on November 2, the Supreme Court denied that motion, too.  Accordingly, the discovery at the heart of the petition then occurred and, as noted above, the trial is now finished, with oral argument to be held next week.

Second, the district court judge has already announced his expectation that in any findings of fact and conclusions of law that he makes in his post-trial judgment, he'll "differentiat[e]" between evidence that's within the administrative record and evidence adduced at trial that's outside the administrative record.  [UPDATE:  Here's a handy chart the plaintiffs submitted on Saturday identifying the submitted evidence from inside and outside the administrative record.]  That is to say, the judge will explain whether the plaintiffs should prevail on the administrative record alone and, if not, how any evidence outside that record might or might not affect the judgment.  The court added that "Defendants remain free to argue . . . that the Court should disregard all evidence outside the administrative record and, if unsuccessful, can argue on appeal that the Court erred in considering extra-record evidence."  Accordingly, as Judge Furman explained, "if the Court rules against Defendants on the basis of extra-record materials and a higher court holds that the Court should not have considered those materials, Defendants would be able to get complete relief" from the appellate courts, including the Supreme Court, after final judgment--no retrial would be necessary.

So what's the point of the Supreme Court's cert. grant, to review the propriety of discovery that has already been completed and to do so before the trial court enters judgment?  Why didn't the Court at least wait until Judge Furman issued his judgment?  If the district court has issued its judgment before December 17, when the government's opening brief in the Supreme Court is due, does the Court expect the parties simply to treat the proceedings in the Court as a sort of direct appeal from the district court on the merits--transforming the case into one involving a de facto certiorari before judgment of sorts--thereby circumventing the court of appeals?  That seems unlikely.  (And that's assuming the district court rules against the government.  If Judge Furman rules in favor of the government, what happens to the Supreme Court case?  Presumably the plaintiffs--unlike the government(?)--would be required to initially appeal to the court of appeals.  But if so, why is the government's evidence-based petition ripe for SCOTUS review now?)

And if Judge Furman's judgment comes after December 17, what are the parties supposed to do about it during their remaining briefing schedule in the Supreme Court?  Begin treating the SCOTUS case as if it were an appeal on the merits?  Simultaneously go up to the Second Circuit on the merits while the ancillary evidentiary question about what evidence the district court should have considered is pending in the Supreme Court?

I sense that I must be missing something here, but I've asked these questions of a bunch of people following the case, and no one's had a clue about what the Court has in mind.  [One wild speculation:  Perhaps the Court fully expects to dismiss the petition as moot once Judge Furman issues his judgment, but is merely trying to spur him to rule expeditiously--something the Court presumably cannot simply order a trial judge to do--to make it more likely the appellate courts can opine on the merits before the end of June.  If that's the reason, however, it seems unnecessary--as far as I know Judge Furman has been moving things along very briskly, with the summer deadline in mind.]

Meanwhile, just a few hours ago (yes, on a Sunday), the government defendants asked Judge Furman to revisit his prior decision to proceed toward final judgment, and moved him to stay all proceedings until the Supreme Court issues its decision on the evidentiary questions sometime between next March and June.  I must confess that I don't see the point in such a delay, especially in light of the court's determination to specify, in his forthcoming judgment, whether and how the plaintiffs' claims are affected by any materials outside the administrative record.  A four- to seven-month delay before the court enters its final judgment would effectively preclude the courts from being able to carefully consider the merits of the case before the new census forms are to be printed up in June.  Why would that be (in the government's words) "the most prudent course"?

[UPDATE:  Judge Furman has instructed the plaintiffs to file their response to the government's new motion by 4:00 p.m. on Tuesday, November 20.  Here is that opposition.  Not satisfied with such a rapid schedule, DOJ has now gone to the U.S. Court of Appeals with a motion to stay the district court proceedings.  Others may disagree, but I don't see in that motion any persuasive basis for a stay.]

[UPDATE, Nov. 20:  Here's the plaintiffs' opposition to the stay motion.  Meanwhile the U.S. Court of Appeals for the Second Circuit has instructed the government to be patient:

The Government moved yesterday for a stay of proceedings in two consolidated district court cases pending the Supreme Court’s resolution of In re Department of Commerce, No. 18-557. A similar motion for a stay of proceedings, filed only two days ago, remains pending before the District Court, which set a deadline for filing any opposition to the motion by today at 4 p.m.  Upon due consideration, it is hereby ORDERED that the motions for a stay are DENIED as premature, without prejudice to renewing the motions for the Court’s consideration in the event the District Court denies the stay motion pending before it. In the event the District Court denies the motion, this appeal will be deemed automatically renewed for our consideration.

Late this afternoon, Judge Furman denied the motion for stay and didn't mince words about his views of the government's conduct:

"Unless burdening Plaintiffs and the federal courts with make-work is a feature of Defendants’ litigation strategy, as opposed to a bug, it is hard to see the point." 

"To borrow from Camus, '[o]ne must imagine Sisyphus happy.'"  

"The words 'harm' and 'injury' do not appear anywhere in their motion . . . for good reason, as the notion that they—or anyone else—would suffer 'irreparable harm' without a stay is laughable." 

"Defendants’ motion makes so little sense, even on its own terms, that it is hard to understand as anything but an attempt to avoid a timely decision on the merits altogether."   

"If Defendants’ motion in this Court comes close to the sanctionable line, [their CTA2] filing would sure seem to cross it."   

"Defendants’ motion is most galling insofar as it is premised on the suggestion that granting a stay would help conserve judicial resources.  It is plainly more efficient for this Court to rule expeditiously." 

"If Defendants were truly interested in conserving judicial resources, they could have avoided burdening this Court, the Second Circuit, and the Supreme Court with twelve stay applications over the last eleven weeks that, with one narrow exception, have been repeatedly rejected as meritless. Instead, Defendants would have focused their attention on the ultimate issues in this case, where the attention of the parties and the Court now belongs." 

"Enough is enough."

And still later this afternoon, the government, undeterred, went back to the Second Circuit and asked that court to now treat its earlier motion for stay as "automatically renewed."]

[UPDATE 11/21:  Here's the opposition to stay in the court of appeals from the city, county and state plaintiffs.

This afternoon the Court of Appeals for the Second Circuit quickly and unceremoniously rejected the DOJ/DOC motion to stay Judge Furman's proceedings "substantially for the reasons set forth in the District Court’s brief opinion."]

[FURTHER UPDATE:  Just before midnight, the parties filed their post-trial memoranda--with oral argument to be held next Tuesday, Nov. 26:

Plaintiffs' Proposed Findings of Facts

Plaintiffs' Proposed Findings of Law

Defendants' Proposed Findings of Facts and Law]
Posted 11:46 PM by Marty Lederman [link]

The Motion to Substitute

Gerard N. Magliocca

The Supreme Court would be doing everyone a favor by ordering briefing on the motion to substitute that Tom Goldstein has filed challenging the legality of the Acting Attorney General's appointment. I doubt that the Court would ever have to resolve this dispute. The mere order of briefing probably will hasten either the nomination of the next Attorney General or the withdrawal of Whitaker in favor of Rod Rosenstein, whom everyone agrees can serve as the Acting Attorney General.
Posted 4:32 PM by Gerard N. Magliocca [link] (28) comments

Jack Balkin on Original Methods Originalism: A Response

Guest Blogger

Read more »
Posted 2:45 PM by Guest Blogger [link]

Matthew Whitaker and the No Religious Test Clause

Guest Blogger

Philip Bobbitt

I gather a spokesperson for the Department of Justice---who declined to speak on the record--has been clarifying remarks made by the acting Attorney General, Matthew Whitaker, on a number of constitutional subjects.  Among these is the statement, made in a 2014 debate when Whitaker was a candidate for the Republican nomination for senator from Iowa, in response to a question as to “what criteria” a senator should use in evaluating judicial nominees.  Whitaker is reported to have said, “I’d like to see things like their world view, what informs them.  Are they people of faith?  Do they have a biblical view of justice, which I think is very important…And what I know is as long as they have that world view, they’ll be good judge.  And if they have a secular world view, where this is all we have here on Earth, then I’m going to be very concerned about that judge.”

In the various published commentaries made attacking or defending this position, I have been surprised not to have come across anyone who quotes Article VI of the Constitution that provides that “no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.”

Nor is this omission irrelevant to persons interested in constitutional interpretation.  To those who think that the standards for Senatorial confirmation are constitutional in nature, even if there is no role for litigating the matter, ignoring the plain text of the Constitution is disheartening.  It gives further impetus to claims like, "the standards for impeachment are whatever the House finds them to be," "because the pardon power is by its terms unlimited, a president can pardon for any reason he wishes," despite textual commitments to the contrary.

Philip C. Bobbitt is the Herbert Wechsler Professor of Federal Jurisprudence and director for the Center for National Security at Columbia Law School. You can reach him by e-mail at pbobbi at law.columbia.edu





Posted 6:43 PM by Guest Blogger [link]

Minority Rule: How Long?

Joseph Fishkin

I don’t usually do this, but I thought I’d re-up a prior post from before the election: majority leverage against minority rule.
Posted 12:36 AM by Joseph Fishkin [link]

How Could Religious Liberty Be a Human Right?

Andrew Koppelman

Posted 12:26 PM by Andrew Koppelman [link]

Interview for The Point Magazine

Corey Brettschneider

Here is my interview with The Point Magazine about my new book The Oath and the Office: A Guide To The Constitution For Future Presidents: https://thepointmag.com/2018/dialogue/executive-decisions-american-politics-presidency
Posted 3:52 PM by Corey Brettschneider [link]

Who is the Attorney General?

Gerard N. Magliocca

Neal Katyal and George Conway have an op-ed in The New York Times arguing that the appointment of Acting Attorney General Whitaker is illegal and that any actions that he takes are null and void. I want to make one observation about their argument.

The Constitution sets forth a way to fill a vacancy created when a Cabinet member resigns, dies, or is fired. The President can make a recess appointment under Article Two, Section Three. In 2014, the Supreme Court held in Noel Canning that the Senate gets to decide when that body is in recess and, thus, when the President can make a recess appointment. This means that if the Senate was in recess yesterday, Mr. Whitaker's appointment is lawful but will expire at the end of the year.  But was the Senate in recess yesterday? The Senate was not in session yesterday. but I am unclear whether the Senate's adjournment on Tuesday (scheduled to last until Friday) is a recess.

If the Senate was not in recess yesterday, then I'm having a hard time understanding how the Federal Vacanies Reform Act does not present a constitutional problem as applied to Whitaker's appointment. What is the point of the Senate staying in session to prevent recess appointments if the President can make the same pick under the Act? Moreover, the Act in this instance may be increasing the scope of the President's temporary appointment power beyond what the Constitution would give (less than two months), and I'm not so sure that Congress can do that.
Posted 1:57 PM by Gerard N. Magliocca [link] (52) comments

Our American Story

Gerard N. Magliocca

I am proud to tell you about a forthcoming book called Our American Story: The Search for a Shared National Narrative, which is now available for pre-order on Amazon. Scholars and elected officials from the left and right (including me) have contributed essays explaining how we think Americans might find common ground in this polarized age. Here is the Abstract:

Over the past few decades, the complicated divides of geography, class, religion, and race created deep fractures in the United States, each side fighting to advance its own mythology and political interests. We lack a central story, a common ground we can celebrate and enrich with deeper meaning. Unable to agree on first principles, we cannot agree on what it means to be American. As we dismantle or disregard symbols and themes that previously united us, can we replace them with stories and rites that unite our tribes and maintain meaning in our American identity? 

Against this backdrop, Our American Story features leading thinkers from across the political spectrum--Jim Banks, David W. Blight, Spencer P. Boyer, Eleanor Clift, John C. Danforth, Cody Delistraty, Richard A. Epstein, Nikolas Gvosdev, Cherie Harder, Jason Kuznicki, Gerard N. Magliocca, Markos Moulitsas, Ilya Somin, Cass R. Sunstein, Alan Taylor, James V. Wertsch, Gordon S. Wood, and Ali Wyne. Each draws on expertise within their respective fields of history, law, politics, and public policy to contribute a unique perspective about the American story. This collection explores whether a unifying story can be achieved and, if so, what that story could be.

Posted 9:51 AM by Gerard N. Magliocca [link]

Symposium on The Law And Policy Of AI, Robotics, and Telemedicine In Health Care -- Collected Posts

JB

Here are collected posts published in conjunction with a Solomon Center symposium on The Law And Policy Of AI, Robotics, and Telemedicine In Health Care.

1. Jack Balkin, Introduction to the Symposium

2. Claudia Haupt, The Algorithm Will See You Now

3. William M. Sage, Non-Diagnosis: An Unappreciated but Critical Role for AI in Healthcare

4. W. Nicholson Price II, Four Roles for Artificial Intelligence in the Medical System

5. A. Michael Froomkin, Organizing the Federal Government’s Regulation of AI

6. Eric M. Fish, Key Questions for Regulators Rise with the Dawn of AI-Driven Healthcare

7. Mason Marks, Artificial Intelligence for Suicide Prediction

8. Bonnie Kaplan, Seeing Transparency Through: Healthcare Software, Data Privacy, and Regulation

9. Frank Pasquale, Who is Your Therapy App Working For?

10. Paul Vincent Tongsy, Care Robots

11. A. Michael Froomkin, Big Data: Destroyer of Informed Consent

12. Fazal Khan, Regulating Carebots for the Elderly: Are Safety and Efficacy Sufficient Standards of Review?

13. Ian Kerr, AIs as Substitute Decision Makers

14. Sharona Hoffman, Artificial Intelligence and Predictive Data: The Need for A New Anti-Discrimination Mandate

15. Valarie K. Blake, Regulating Social Robots in Health Care

Posted 9:30 AM by JB [link]

Content Moderation, The Press, and the First Amendment - A Discussion with Ben Smith and Josh Marshall

JB

Posted 9:00 AM by JB [link]

A Backdoor Approach to Calling an Article V Convention

David Super

Posted 11:09 PM by David Super [link]

The Devil is in the Data

Guest Blogger

Posted 11:00 AM by Guest Blogger [link]

Regulating Social Robots in Health Care

Guest Blogger

Valarie K. Blake

Posted 1:07 PM by Guest Blogger [link]

Balkinization Symposium on Jonathan Gienapp, The Second Creation-- Collected Posts

JB

Here are the collected posts for our Balkinization symposium on Jonathan Gienapp's new book, The Second Creation: Fixing the American Constitution in the Founding Era (Belknap Press 2018).

Jack Balkin, Introduction to Symposium on Jonathan Gienapp, The Second Creation

Jack Balkin, The Second Creation and Orignalist Theory

Gerard Magliocca, Fixation and Legitimacy

Bernadette Meyler, The Second Creation and Its Implications

Christina Mulligan, Evolving into the Fixed Constitution

Alison L. LaCroix, The Invention of the Archival Constitution

Posted 11:00 AM by JB [link]

The Constitutional Challenge to Robert Mueller's Appointment

Marty Lederman

One week from today, on Thursday, November 8 at 1:00, a panel of the U.S. Court of Appeals for the D.C. Circuit (Judges Henderson, Rogers and Srinivasan) will hear argument in Miller v. United States, No. 18-3052, a case challenging the constitutionality of Robert Mueller’s appointment to serve as “Special Counsel” for the Russia investigation.

The appellant is Andrew Miller, a potential grand jury witness who refused to comply with a pair of subpoenas requiring him to provide testimony and documents to the grand jury.  Miller argued, among other things, that the subpoenas should be quashed because Mueller was not lawfully appointed.  Miller continued to refuse to comply with the subpoenas even after Chief Judge Howell denied his motion to quash them, and so the Judge held him in contempt.  Miller has appealed from that contempt order.

He makes three separate arguments that Rosenstein’s appointment of Mueller purportedly violated the Appointments Clause of the Constitution, Art. II, § 2, cl. 2, which provides that:

[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

First, and most fundamentally, Miller argues that Special Counsel Mueller is a “principal” officer and therefore could only be appointed by the President, by and with the advice and consent of the Senate, which was not done here.

Second, Miller argues that even if Special Counsel Mueller is an “inferior” officer, his appointment was nevertheless unconstitutional because Congress has not “by law” vested the Attorney General with the authority to appoint such a Special Counsel (in effect, a question of statutory interpretation, about whether the appointment was ultra vires).

Third, Miller argues that even if Special Counsel Mueller is an “inferior” officer, and even if Congress authorized the Attorney General to appoint him, the Deputy Attorney General, Rod Rosenstein, may not make the appointment because he is not the “Head” of the Department of Justice, even where, as here, he’s exercising the functions of the Office of the Attorney General because the Attorney General himself, Jeff Sessions, is recused from the investigation and is therefore unable to exercise those functions.

If the court of appeals were to hold that the Mueller appointment was unconstitutional, that would, of course, be a very big deal.  In a series of posts over at Just Security, however, I do something of a "deep dive" into Appointments Clause arcana in order to explain why that’s a very unlikely outcome.   I also identify two or three questions the court of appeals need not, and probably should not, try to answer definitively that might have greater implications for developments apart from the case on appeal—including, importantly, the nature and scope of the Acting Attorney General’s authority to remove Mueller.

The first post offers a general overview of the case, with links to the lower court opinions and the briefs on appeal.

In my second post, I explain why there’s actually a serious question, not briefed by the parties, about whether the Appointments Clause applies to Mueller at all (a question the court of appeals can likely avoid by simply assuming, without deciding, that Mueller is a constitutional “officer”).

The third post is perhaps the most important—not for purposes of resolving the Miller appeal itself, but more broadly for what it says about the officers throughout the government, including Mueller, whose independence is secured in part by tenure protections that preclude “at will” removal.  In that post, I take issue with the tentative suggestion in Chief Judge Howell’s opinion that it might be proper—or necessary to avoid a difficult constitutional question—for the court to construe expansively the Acting Attorney General’s authority to remove Mueller under the DOJ Special Counsel regulations.

My fourth post addresses a handful of issues raised by Judge Friedrich in her opinion in a related case raising similar Appointments Clause challenges to Mueller, including: whether the Supreme Court’s decision in Morrison v. Olson (1988) is still "good law"; whether a bipartisan consensus has emerged that Morrison was wrongly decided; whether the Special Counsel is an inferior officer whose appointment was constitutional even under the analysis of the Court’s later decision in Edmond v. United States (1999); and whether the prospect of a possible rescission or amendment of the Special Counsel regulations affords Rosenstein greater control over the conduct of the Mueller investigation, and whether that question has any bearing on the Appointments Clause questions in the Miller case.

In my final post, I briefly discuss what I’ve labeled above as the second and third of Miller’s three Appointments Clause arguments, both of which are predicated on the assumption that the Appointments Clause applies and that Mueller is an inferior officer.
Posted 9:15 AM by Marty Lederman [link]

Artificial Intelligence and Predictive Data: The Need for A New Anti-Discrimination Mandate

Guest Blogger

Sharona Hoffman

For the Symposium on The Law And Policy Of AI, Robotics, and Telemedicine In Health Care.

A large number of U.S. laws prohibit disability-based discrimination.  At the federal level, examples are the Americans with Disabilities Act (ADA), the Fair Housing Act, the Rehabilitation Act of 1973, Section 1557 of the Affordable Care Act, and the Genetic Information Nondiscrimination Act.  In addition, almost all of the states have adopted disability discrimination laws.  This might lead to the conclusion that we enjoy comprehensive legislative protection against discrimination associated with health status.  Unfortunately, in the era of big data and artificial intelligence (AI) that is no longer true.


Posted 9:00 AM by Guest Blogger [link]

AIs as Substitute Decision Makers

Guest Blogger

Ian Kerr
Read more »
Posted 9:00 AM by Guest Blogger [link]