Balkinization  

Thursday, May 25, 2017

Locating the absolute minimum level of policy “seriousness” our public sphere demands

Joseph Fishkin

Polls close soon in today’s special congressional election in Montana.  Last night, the Republican candidate Greg Gianforte reacted angrily to a Guardian reporter’s questions about the CBO score of the Republican health care bill by body-slamming the reporter to the ground and repeatedly punching him, according to eyewitnesses, one of whom was a reporter for Fox News, Alicia Acuna.

This put Acuna in an awkward position.  She and her two crew members were the closest eyewitnesses to an extraordinary and extremely newsworthy event—but also one that would likely harm the prospects of the Republican candidate in a very high-profile special election.  Thus, core norms of Acuna’s profession (tell the story, get the facts out, do it quickly and fairly) came into unusually sharp conflict with core norms of her employer (tell the pro-Republican side of the story, or else minimize the story).  To her great credit, Acuna put out a statement last night that was straightforward and unequivocal.  She stated that after Ben Jacobs, the Guardian reporter, asked his CBO question a second time, “Gianforte grabbed Jacobs by the neck with both hands and slammed him into the ground behind him. [My crew] and I watched in disbelief as Gianforte then began punching the reporter. . . . To be clear, at no point did any of us who witnessed this assault see Jacobs show any form of physical aggression toward Gianforte.”  (She clearly told the same thing to the police; Gianforte has been charged with assault.)  Early this morning, Acuna was interviewed on Fox News about the incident.  Some conflict between the two sets of norms within which she must operate—a conflict inherent in Fox News’ position in the political and journalistic ecosystem—was unavoidable.  Again to her credit, Acuna described the body-slamming on air.  She then made a slight shift, and read out a Gianforte campaign statement about what happened, the text of which filled viewers’ screens—a statement entirely at odds with her own account and, it would seem, with reality.  (In the statement’s version of events, Jacobs, the reporter, was the aggressor.)  Acuna did not contradict the campaign statement.  She just read it out.  She never restated on air the most important point from her written statement from the night before, the point that most directly contradicted the statement she had just read: that “at no point did any of us who witnessed this assault see Jacobs show any form of physical aggression toward Gianforte.”  To say on air that one side—the Republican side—of this “controversy” was simply lying would have conflicted too much with one of the two sets of norms to which Acuna is subject as a journalist working for Fox News.

This incident is interesting for all kinds of reasons.  Some of its most interesting resonances have to do with the nature of Fox News.  The way Fox News employees do their jobs has an enormous aggregate effect on one of the big political questions of our time: whether we can still have a public sphere, a national conversation, based on shared facts that are actually true.

On this front, the incident last night in Montana provides a useful boundary-delimiting end case.  It would be possible, I would think, to staff a news organization or a political organization (or a hybrid of the two) with people who, when required, will simply go out and flatly lie about events they have just witnessed with their own eyes.  However, although possible, this is tough to sustain.  Making people flatly lie in a sort of black-is-white, up-is-down manner about facts where there is a clear truth of the matter, and they know it, tends to erode their self-respect.  It makes it hard to hire and keep good employees. It makes you more vulnerable to disloyalty and perhaps to leaks born of employees’ internal torment and alarm.

What is easier and more sustainable than demanding flat lies is to trade instead on norms that are part of the role-morality of journalism itself.  One important set of norms within journalistic role-morality surrounds the idea that all sides of a controversy should have a fair chance to have their say.  When I watched Acuna’s broadcast interview, compared to her written statement, I heard her simply putting a little more weight on that particular journalistic norm, and less weight on the competing, sometimes-conflicting set of norms about stating the facts and getting the truth out.  Like a subtle shift of weight from one foot to the other, this is just a change of stance within a firmly journalistic posture; it doesn’t feel like an active betrayal of journalism’s core values.

In a democracy, we depend on journalism about many topics.  But we especially depend on journalism about public policy.  The challenging thing about public policy journalism is that the journalists are never eyewitnesses to the body-slam.  In order to understand what’s at stake in any given bill or regulation, journalists rely heavily on others’ expertise.  And those others are not eyewitnesses either.  Instead they are experts, who use canons of expert knowledge to assess and predict the effects of any change in the law and who it will affect and how.  The experts operate in a complex ecosystem with journalists who credential them as sources of relevant knowledge and then transmit that knowledge to a wide audience.  The journalists themselves are in the strange position of providing most citizens with most of what we need to know about important public questions that neither we nor the journalists can be sure we understand without help—and yet these are questions for which we, the people, are ultimately responsible.

The whole system works in part because the experts—politicians, academics, authors, think tank scholars, and assorted others—in many cases have their own forms of role-morality that (hopefully) constrain them from too wildly distorting the truth.  When that breaks down, the whole system by which journalists communicate with the people about policy breaks down as well.  It becomes possible to have national political debates—even consequential, electorally significant debates—about questions where the premises are simply untrue.

That brings me to the real topic of this blog post: the Trump administration’s budget.  Famously (in some circles, as discussed below), it does not add up, due to a $2 trillion double-counting of the already-wildly-inflated benefits of cutting taxes for economic growth.  The question is how we should understand this crazy $2 trillion hole at the heart of the budget.  One might criticize it as breathtakingly sloppy, or view it as an error.  But in my view, that’s the wrong way to look at it.  Mick Mulvaney, the budget director who shaped this document, knows what he is doing.  He is aiming to specify the budget with exactly the right level of policy “seriousness” to satisfy non-experts—journalists first of all, and then indirectly their viewers and listeners and readers—that the budget document is credible enough to be taken seriously.   The question is where exactly that line is.  Just how much can you get away with?  It’s possible that in this case Mulvaney may have miscalculated and overshot the mark.  But that is the essential game: to make promises just serious-sounding enough that they avoid immediate disintegration under the most cursory forms of scrutiny that are possible within the constraints of the abilities and norms of the relevant journalists—and no more.  That way you maximize the amount of good news you can credibly promise, and minimize the amount of bad news you must acknowledge.

More after the jump…

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One Thought on the Future of the Travel Ban Litigation

Gerard N. Magliocca

The expressed purpose of the President's Executive Order is that we need a temporary travel ban from six countries until new procedures are established to ensure that visitors or immigrants from those six countries do not pose a security threat. Let's assume that the Administration seeks certiorari from the Fourth Circuit en banc opinion and that certiorari is granted. The case cannot possibly be argued until December at the earliest, you would think.

By then, though, shouldn't the new procedures be in place? If they are, then the temporary travel ban will be rescinded and the case will be moot. If they are not, then the Executive Order will look like a   phony document (in other words, a permanent rather than a temporary travel ban) that will make its intent all the more suspect without having to delve into presidential campaign statements or what an aide said on cable news. The former seems like the more likely outcome, thus I doubt that this case will ever be heard by the Justices.

The Fourth Circuit & Animus Under Mandel

Corey Brettschneider

(cross-posted at Take Care)

In the recent travel ban appeals, the acting solicitor general (ASG) relied largely on a case called Kleindanst v. Mandel to argue that those outside the country are not protected by the Establishment Clause. But, as the Fourth Circuit Court of Appeals observed today in its decision blocking the travel ban, he also unwittingly helped make the case against the ban in his description of Mandel’s holding. The Fourth Circuit reasoned that while matters of immigration require deference to the executive, this deference does not extend to executive orders based in “bad faith” or animus. 
In this post I clarify that logic and show why it doomed the ASG's position.
In Mandel, the Court concluded that immigration rules that were alleged to have discriminated on the basis of ideology did not violate the Free Speech Clause of the First Amendment. At oral argument in the Fourth Circuit travel ban case, the ASG argued that Mandel offers an alternative to cases like Church of Lukumi Babalu Aye, Inc. v. Hialeah (1992) and Lemon v. Kurtzman (1971) in thinking about how to apply the Religion Clauses in cases involving those outside the country (or at our borders). He contended that, under Mandel and subsequent cases interpreting it, all the government need show in the immigration context is a “rational basis” for its actions, rather than the more demanding showing required under traditional Establishment Clause doctrine.
But this analysis invites, rather than disavows, application of the animus doctrine that the Supreme Court developed in cases like Lukumi—and that I argued in an earlier essay in Politico and an amicus brief (along with my co-organizers Micah Schwartzman and Nelson Tebbe, Joshua Matz, who did the primary drafting and many other constitutional law scholars who signed the brief) should be central to this case.
According to settled animus doctrine, laws that are based primarily in irrational prejudice lack a rational basis. Indeed, it was in Romer v. Evans (1996) that the Court most thoroughly described the rule against animus—and did so while insisting that the proper standard of review was rational basis. So to invite rational basis review is to ask whether the law is based in animus. In other words, if Mandel is understood as a mere rational basis case, this would compel review under Lukumi, not exclude it. (That conclusion is consistent with the view that Mandel’s requirement of a “bona fide” reason for governmental action precludes the government from acting in “bad faith.”)
To be sure, in Mandel itself the Supreme Court found that discrimination based on ideology might have a rational basis in the midst of the Cold War.  But a law based on prejudice against Muslims has no such conceivable rationale.
A more radical view would hold that not even rational basis review applies to immigration rules in cases concerning persons outside the country. On this view, those beyond our national boundaries are not even covered by the Establishment, Free Exercise or Equal Protection Clauses. But no case has ever said that the Establishment Clause does not apply to immigration policy.  Indeed, the logic of the Clause demands that it be held to apply—if not directly to the persons abroad, then to the exercise of governmental power here in America. As Ira Lupu and others have argued, the Clause is fundamentally about what constitutes illegitimate uses of government power, not about particular rights holders.  
That structural argument about the Establishment Clause also extends to rationality review under the Free Exercise and the Fifth Amendment equal protection principle. Legitimate government action of any kind, regardless of whether it is directed to those inside or outside the nation’s boarders, requires a rational basis. Animus toward any particular religion or ethnicity as a motivation for government action means there is no rational basis for that action, since its very object is forbidden
Accordingly, as the Fourth Circuit recognized today, even if Mandel supplies the rule of decision and requires rationality review, animus is fatal even under that standard.  

Wednesday, May 24, 2017

The Shifting Ground of Redistricting Law

Guest Blogger

Chris Elmendorf

The tectonic plates of redistricting law are starting to slide—and quickly. Earlier this year, a three-judge district court struck down Wisconsin’s state legislative map as an unconstitutional partisan gerrymander, the first such holding by any federal court in more than a generation. Federal courts in Maryland and North Carolina have also issued supportive rulings in current partisan gerrymandering cases, allowing the plaintiffs' claims to proceed to trial.  

Meanwhile, yesterday’s Supreme Court decision in Cooper v. Harris, the North Carolina racial gerrymandering case, augurs a major recontouring of the redistricting landscape as the Equal Protection plate comes crashing into the Voting Rights Act (VRA) plate. Section 2 of the VRA has long been understood to require the drawing of electoral districts in which racial minorities can elect their “candidates of choice” in locales where white and minority voters have very different political preferences. Yet since the 1990s, the equal protection clause has required strict scrutiny of any district in whose design race was the “predominant factor.” The Constitution disfavors the intentional sorting of voters among districts on the basis of their race. Until recently, however, it was widely thought that the “predominant factor” test for racial sorting / equal protection claims would be met only as to districts in which both (1) minority citizens comprise a majority of the voting-age population, and (2) the district’s boundaries are wildly incongruent with “traditional districting principles,” such as compactness and respect for local government boundaries.

But in Bethune Hill v. Virginia, decided two months ago, the Supreme Court clarified that the “predominant factor” test is satisfied whenever race was the overriding reason for moving a group of voters into or out of a district, irrespective of the district’s apparent conformity to traditional criteria. Then, in the unanimous portion of Cooper v. Harris, the Court applied strict scrutiny to a district because the state had “purposefully established a racial target” for its composition, and selectively moved heavily black precincts into the district to achieve that target. In the Republican redistricting plan at issue in Cooper, the target was 50% black. In a Democratic gerrymander of North Carolina, the target would probably be smaller, perhaps 40% black, to more efficiently distribute reliable black Democratic voters while continuing to enable the election of some black candidates. But the actual threshold (50% vs. 40%) seems legally irrelevant.

How then is a state to comply with Section 2 of the Voting Rights Act, which, as noted above, has long required states to create districts with enough minority voters (a "racial target") to consistently elect minority “candidates of choice.” One unhappy possibility is that the Court will simply undertake to free redistricters from the latter obligation, holding Section 2 unconstitutional or narrowing it beyond recognition on the basis of an asserted conflict with the anti-sorting equal protection principle. 

Another possibility is that federal courts will require redistricters to follow a path established by Alaska's Supreme Court as a matter of state constitutional law. In Alaska, the state must first redistrict blind to race, then evaluate the resulting map for compliance with Section 2, and then make whatever minimal (?) changes are necessary prevent a Section 2 violation. Cooper v. Harris hints at this approach. Striking down District 1, the Court explained: "North Carolina can point to no meaningful legislative inquiry into what it now rightly identifies as the key issue: whether a new, enlarged District 1 [enlarged to comply with one person, one vote], created without a focus on race but however else the State would choose, could lead to § 2 liability.”

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Balkinization Symposium on James Pfander, Constitutional Torts and the War on Terror -- Collected Posts

Andrew Koppelman

Here are the collected posts for our Balkinization symposium on James Pfander's new book,  Constitutional Torts and the War on Terror (Oxford University Press, 2017).




Stephen Vladeck, A Bivens Encomium—or Elegy

Joanna Schwartz, Blind Justice, Lady Liberty, and the War on Terror



James Pfander, Constitutional Torts and the War on Terror (response to Balkinization posts).

What is a Work Requirement?

Guest Blogger

David Super

     Media reports suggest that the forthcoming Trump budget will extract large savings from anti-poverty programs by imposing tougher “work requirements” on recipients.  To many, this is among the most acceptable kinds of cuts in programs for low-income people.  Numerous academics and politicians who regard themselves as sympathetic to the economically disadvantaged have nonetheless supported or even proposed broadening work rules.  Work requirements poll well, with many less-educated workers particularly enthusiastic, responding to images of idle people living comfortably off if their hard-earned tax dollars. 

     Yet a basic confusion exists at the heart of these debates:  what is a “work requirement”?  The range of program rules bearing that moniker is vast, with fundamental differences in structure and purpose as well as administration.  Increasingly, the term is being used for policies that have nothing directly to do with combatting idleness but rather serve as an attractive cover for arbitrary time limits, bureaucratic churn, and other policies that the public regards far less well. 

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Tuesday, May 23, 2017

President Pence's first two decisions

Sandy Levinson

Imagine for the moment that Donald J. Trump exits the White House.  There are, of course, four possibilities:  Death, resignation, impeachment, or the invocation of the 25th Amendment.  Should the first occur, then perhaps I should change the subject line to President Pence's first decision.  Otherwise, the subject line holds.

So what are these decisions?  The first involves his use of the Pardon Power, though it is altogether likely that our sociopathic president will be more than happy, just before he exits, to issue a general pardon beginning with Michael Flynn, and ending, perhaps, with Trump himself.  Should that occur, then Pence would presumably have little occasion to consider the fate of Gerald Ford and the costs of a potential pardon of Donald J. Trump or, say, Jared Kushner, for their various flouting of American law.  Otherwise, that will surely be something he will have to consider.  Even if Trump himself is no longer alive to receive a pardon, one has the strong suspicion that other Trumpettes, some of them facing financial ruin because of having to hire private counsel to fend off Mr. Mueller, will be in dire need of get-out-of-jail cards of the type provided by George H.W. Bush as part of the Christmas orgy of pardons before he left the presidency in 1993.  Whatever one thinks of Bill Clinton's pardon of Marc Rich (sleazy at best), it doesn't compare to Bush's use of his pardon power basically to shut down the special prosecutor looking into the various actions involving Iran and Nicaragua, some of which implicated then-Vice President Bush himself.

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Constitutional Torts and the War on Terror

Guest Blogger

James E. Pfander

For the symposium on James Pfander, Constitutional Torts and the War on Terror

Let me first offer a few words of thanks: to my interlocutors for spending some time with, and sharing their thoughts about, the book and to my colleague Andy Koppelman for putting together this mini-symposium. Instead of replying to particular claims, I will try to tease out and respond to some of the broader themes in the collected reviews.

My book chronicles a departure in the United States from the sharp-edged rules of the common law, in which ordinary courts applied ordinary law to government actors. While they once followed English common law, federal courts today apply a familiar collection of discretionary doctrines that often result in the denial of remedies to the victims of government wrongdoing. The failure of remedies, in turn, leads to a shortage of law; courts fail to give voice to the legal norms that regulate the officialdom. The book focuses on the remedial failure that has greeted the victims of the Bush Administration’s RDI program of extraordinary rendition, detention, and enhanced interrogation (torture). But the remedial failure extends more generally (as Will Baude, Alex Reinert, and Steve Vladeck observed). Indeed, the Supreme Court has heard argument in two cases this Term, Abassi and Hernandez, that may tell us much about the future efficacy of the Bivens action.

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Sunday, May 21, 2017

Federal Official Liability for Intentional Wrongdoing: Recovering the Past

Guest Blogger

Gregory Sisk


For the symposium on James Pfander, Constitutional Torts and the War on Terror.

In his new book “Constitutional Torts and the War on Terror,” Prof. James Pfander shines a bright spotlight on the “utter failure” of the federal courts to hold the United States Government accountable for unlawful harm deliberately visited on the individuals who have become collateral damage in the “War on Terror.” (61) With the litigation evidence painstakingly (and empirically) laid out by Pfander, constitutional tort actions brought by the victims of unconstitutional detention, harsh interrogation, and other outrages in the War on Terror have invariably gone down to defeat in the federal appellate courts. (167-180) Claims may be dismissed “on the ground that federal law does not create a right to sue the responsible officers for the particular form of mistreatment alleged,” or because the government has interposed a “state secrets” defense to foreclose further litigation, or because “the doctrine of qualified immunity blocks an action against the officers in question.” (xv)

Offering a historically-grounded solution, Pfander harkens back to the pre-Bivens nineteenth century practice by which federal courts entertained simple common-law trespass claims against federal officers for unlawful conduct that harmed individuals, uncomplicated by sovereign immunity or by qualified immunity for officers. These courts evaluated “the simple legality” of the governmental conduct, imposed compensatory damages on the individual officer who transgressed statutory or constitutional limits, and left the officer to seek indemnity from Congress. (7) Pfander urges our twenty-first century federal courts to craft a revived constitutional tort cause of action, one that directly adjudicates the constitutional legality of the government conduct and is not encumbered by the inappropriate political considerations and policy-justified hesitations that cloud current Bivens doctrine. (99-100) In Pfander’s view, this upgraded and enhanced Bivens constitutional tort claim would be a modern version of the nineteenth century common-law trespass action for official wrongdoing.

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Friday, May 19, 2017

Beyond the War on Terror

Guest Blogger

Will Baude

For the symposium on James Pfander, Constitutional Torts and the War on Terror.

Federal courts today are not eager to enforce constitutional rights against individual government officials who are alleged to violate them. Indeed, federal courts frequently dismiss such claims on various technicalities without ever confronting the substance of the rights invoked. That is notably true in 21st-Century litigation over the war on terror, where federal courts have expressed skepticism (or more) about implied causes of action, extraterritorial constitutional rights, and the damages remedy.

But was it always thus, and must it be thus, should it be thus, today? Constitutional Torts and the War on Terror, by James Pfander, sets out to answer these questions. (To all three: “No.”) Pfander frames the book by showing us that legal rights were originally enforced against government officials in a quite different way. Government action was assumed to be regulated by generally applicable law. Ordinary citizens could challenge the legality of that government action through ordinary suits at common law. And judges saw their primary duty as simply applying the law to the cases before them, leaving for lawmakers the task of indemnifying officials or changing the law where its consequences were undesirable.

This 19th-Century model of government legality may seem quaint, but it teaches important lessons today. Pfander argues that our constitutional tort regime fails to live up the structure or benefits of the old regime, and fails to justify its replacement. The common law has worked itself foul. Pfander may be right or wrong about the consequences, but I think his more important critique sounds in legal process: The federal courts might have you believe that today’s limits on constitutional torts are the result of an admirable judicial restraint – a hesitation to step into domains where judges have no commission. But the restraints are of the judiciary’s own devising, and thus in deep tension with the original judicial duty – to apply the law rather than make it.

I may be taking this point further than Pfander would, but I emphasize it because it amounts to my only real disagreement with the book – that it does not take the original model of government legality nearly far enough. Consider two points.

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Thursday, May 18, 2017

Blind Justice, Lady Liberty, and the War on Terror

Guest Blogger

Joanna Schwartz

For the symposium on James Pfander, Constitutional Torts and the War on Terror.

The day Donald Trump announced his (first) travel ban, hundreds of lawyers set up crisis centers in airports around the country and began drafting legal challenges to the executive order. The next day, Judge Anne Donnelly of the District Court for the Eastern District of New York issued a temporary restraining order. Soon thereafter, judges in Seattle, Boston, Detroit, and Alexandria issued a variety of orders staying part or all of the ban. Trump appealed the Seattle court’s decision to the Ninth Circuit, arguing, among other things, that the President’s national security decisions were unreviewable. The Ninth Circuit denied the request for a stay, and in its decision strongly disagreed with the president’s depiction of the role of courts and the executive in national security matters. “There is no precedent to support this claim of unreviewability, which runs contrary to the fundamental structure of our constitutional democracy,” the per curiam opinion explained. “Indeed, federal courts routinely review the constitutionality of—and even invalidate—actions taken by the executive to promote national security, and have done so even in times of conflict.” After making a few angry tweets about the Ninth Circuit, and threats to take the case to the Supreme Court, Trump and his staff went to work on a new order.

During this flurry of legal challenges, a cartoon began circulating widely online. Blind Justice was staving off a pugilistic Donald Trump from the Statue of Liberty saying, calmly, “I’ve got this.”1 Trump had sought to use national security rhetoric to avoid judicial review of his immigration policies, and courts had refused to stand down.


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Wednesday, May 17, 2017

A Bivens Encomium—or Elegy

Guest Blogger

Stephen Vladeck


For the symposium on James Pfander, Constitutional Torts and the War on Terror.

Jim Pfander’s invaluable new monograph, Constitutional Torts and the War on Terror, arrives at an especially fortuitous moment in the history of the Bivens doctrine—which recognizes circumstances in which judges can recognize a damages remedy for victims of constitutional violations by federal officers even though no statute authorizes such relief. Sometime in the next six weeks, the Supreme Court could hand down its most important rulings on the scope of the doctrine in the 46 years it’s been on the books. And at least based on how the oral arguments went in Ziglar v. Abbasi and Hernández v. Mesa (in which I’m co-counsel to the Petitioners), the signs aren’t too optimistic for those who agree with the younger Justice Harlan, who closed his concurrence in Bivens with the observation that “it would be . . . anomalous to conclude that the federal judiciary . . . is powerless to accord a damages remedy to vindicate social policies which, by virtue of their inclusion in the Constitution, are aimed predominantly at restraining the Government as an instrument of the popular will.” As Pfander’s book explains, careful study of the history of civil remedies arising out of federal government misconduct suggests that it would indeed be anomalous to so conclude, especially in the context of challenges to post-September 11 counterterrorism policies. That the Supreme Court may nevertheless be on the cusp of doing so, especially at this particular moment in our nation’s history, should be deeply disturbing to even the most casual reader.

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Tuesday, May 16, 2017

The Cost of Seeking Legal Clarity

Guest Blogger

Alex Reinert

For the symposium on James Pfander, Constitutional Torts and the War on Terror.


I appreciate the opportunity to join such a distinguished group of scholars in commenting on Jim Pfander’s book “Constitutional Torts and the War on Terror.”  In his book, Jim does a fantastic job explaining how courts have strayed further and further from adjudicating the merits of constitutional challenges to executive actions taken in what is colloquially referred to as the “war on terror” (what constitutes terrorism is contested and political and sometimes tinged with Islamophobia).  Jim’s descriptive account of the problem is, for the most part, right on target -- many individuals caught up in the national security response to terrorist threats over the past 15 years have suffered serious harms, and very few of them have obtained a remedy or even a hearing.  And his prescriptive solutions are provocative and move us in the right direction.  My concern is that they may expect too much of both judges and litigants, for reasons I will explain.

I want to begin with one riddle that is in many ways at the heart of the problem Jim painstakingly describes in his book: the apparent conflict between the Supreme Court’s Guantanamo habeas cases (putting limits on executive action) and its Bivens national security cases (failing to find or enforce a remedy for executive misconduct).  This is a riddle to be solved, and Jim suggests (at pp. 87-89) many plausible solutions, but I would also be careful not to overstate the apparent tension.

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Monday, May 15, 2017

Constitutional Rot and Constitutional Crisis

JB

No one could accuse Donald Trump’s presidency of being boring.  The first hundred days have careened wildly through scandals, revelations, outrages, and fracturing of political norms. Every time Trump does something remarkable, like the recent firing of Director James Comey, pundits ask whether we are in a constitutional crisis.

However, as I noted in a previous post, constitutional crisis refers to something different: A constitutional crisis occurs when there is a serious danger that the Constitution is about to fail at its central task of keeping disagreement within the boundaries of ordinary politics instead of breaking down into lawlessness, anarchy, violence, or civil war.

As Sandy Levinson and I have explained, there are three types of constitutional crises. In Type One crises, political leaders announce that they will no longer abide by the Constitution or laws (for example, because of emergency), or they openly flout judicial orders directed at them. In Type Two crises, people follow what they believe the Constitution requires, leading to political paralysis or disaster. In Type Three crises, political disagreement about the Constitution becomes so intense that the struggle goes beyond the bounds of ordinary politics. People take to the streets; there are riots; the military is called out to restore order (or suppress dissent); political figures threaten violence or engage in political violence; or parts of the country revolt and/or attempt to secede,

Constitutional crisis is very rare, and nothing that has yet happened in the Trump Administration -- including the Comey firing-- comes even close. But people are right to think that something important-- and dangerous--is happening to our political institutions.  That is why, I think, people so often reach for the term "constitutional crisis" to describe it.

In this essay, I want to introduce a new idea to explain our current predicament. I will distinguish constitutional crisis, which is very rare, from a different phenomenon, which I think better describes what is happening in the United States today. This is the idea of constitutional rot.

Although the Comey firing is not an example of constitutional crisis, it is an example of constitutional rot.  For this reason, people are right to worry about it.
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Call for Papers -- Constitutional History: Comparative Perspectives

Jason Mazzone

Below the jump is the call for papers for the third annual conference on Constitutional History: Comparative Perspectives to be held in Bologna, Italy on November 13 & 14, 2017.
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Symposium on James Pfander, Constitutional Torts and the War on Terror

Andrew Koppelman

This week and next at Balkinization we are featuring a symposium on James Pfander's new book, Constitutional Torts and the War on Terror (Oxford University Press, 2017). We'll have contributions from Alexander Reinert (Cardozo), Gregory Sisk (St. Thomas), Joanna Schwartz (UCLA), William Baude (University of Chicago), and Stephen Vladeck (Texas). At the conclusion, Jim will respond to the essays.

Friday, May 12, 2017

For one family, war has tragic costs. For others, not so much.

Mary L. Dudziak



The lead story in the print version of today’s New York Times is a story that barely breaks through in our fast-paced digital communications: a family mourns a fallen soldier. Staff Sgt. Mark De Alencar "fought and died in a war that most Americans say is not worth fighting, according to some polls. It is a war that seemed to be over in 2014, when President Barack Obama announced the end of the original United States combat mission,” wrote reporter David Zucchino. "Honestly, I thought the war was over before Mark got sent there" the soldier’s sister-in-law said. 

War is present and personal for deployed American soldiers and their families. It is far off the radar screen of most Americans, exacerbated, it seems, by our digital algorithms. The “top stories” in my digital version of the New York Times this morning did not mention Sargent De Alencar at all.
"The war didn't seem to affect anyone outside the military," remarked De Alencar’s widow, Natasha De Alencar. His son Deshaun De Alencar emphasized: "His life was not taken: It was given to his country," in an echo of Paul Kahn’s powerful work on the soldier’s willing sacrifice.

A soldier’s giving of his life for others – for our disconnected and distracted polity – generates a powerful duty that has been ignored. At the very least, a soldier's death in a war fought in our name requires that we pay attention to it. Engagement is our responsibility.

But simple attention is not weighty enough to honor this family’s sacrifice. There are renewed calls for Congress to reengage with American armed conflict. De Alencar died in Afghanistan “while fighting Islamic State militants.” Congress has declined to authorize armed conflict against ISIS or in Syria, so that presidents rely instead on creative interpretations of preexisting authorizations for the use of force. This puts the task of defining war’s limits within the Office of Legal Counsel, which defines them in secret memos. This is hardly a source of democratic limits on presidential war power.

Though the blame for the absence of restraint falls, in part, on Congress, blame is shared by the American people. I have seen no demands in the recent town hall meetings in congressional districts for congressional engagement with the nation’s use of force. Americans care about what they feel personally. As Natasha De Alencar said, most Americans seem unaffected by the conflict that cost her children their father. The most important democracy deficit in contemporary armed conflict is that a citizenry isolated from war's cost enables ongoing war without restraint.

Trump's Innocence and the Rule of Law: A Note on the Comey Firing

Richard Primus



            Shortly after President Trump fired FBI Director James Comey, Adrian Vermeule pointed out that Trump’s decision, even if motivated by Trump’s desire to stop Comey from continuing to conduct an investigation into Trump’s ties to Russia, would be consistent with Trump’s innocence in that matter as well as with his guilt.  The guilt scenario is easy to imagine.  If Trump has colluded with Russian partners in impermissible ways, he would have had a clear incentive to fire the man who was in charge of an organization investing the matter.  But, Vermeule points out, there is also an innocence scenario that makes sense of the data.  If Trump knows that he is innocent of Russia-related wrongdoing, and if Comey refuses to drop the matter, then Trump might fire Comey as a way of putting an end to an unwarranted investigation.  Indeed, if Trump knows himself to be innocent and suspects that Comey knows it too, he might conclude that an investigation was not just unwarranted but also illicitly motivated.  Firing Comey might then seem like the way to put matters right.

            I’ve long regarded Vermeule as an unusually intelligent and systematic thinker, and I think he is right that Trump’s firing Comey to stop a Russia investigation would be consistent with the innocence scenario he describes.  That’s not to say that I think such an innocence scenario is likely.  But the point of this post is not to try to assign relative probabilities to the two scenarios.  It is to point out that Trump’s conduct would be unacceptable either way.

            To fire the official who is investigating me on the ground that I know myself to be innocent is to make myself the judge in my own case.   No, Trump wasn't executing the official role of a judge when he fired Comey: he was deploying executive power at an investigatory stage rather than rendering an acquittal at the stage of final adjudication.  But that distinction doesn't make much difference here.  Why, after all, is the idea that no person should be the judge in his or her own case fundamental and long-standing within the common law, as well as in American constitutionalism?  Because one might err in judging one’s own guilt or innocence, especially given the strong incentives to come out one way.  Because letting someone be the judge in his own case invites his corruption.  Because when a person is the judge in his own case, it is hard for others to believe the adjudicative process has integrity.  All these problems are the same when I fire the investigator on the ground that I know myself to be innocent as when I acquit myself in court on the same ground.  And they certainly apply to the Comey scenario.  Maybe Trump really does think he’s innocent, but if so he might be deluding himself.  Maybe Trump really is innocent, but it’s nearly impossible for people who aren’t already unshakably committed to the proposition that he’s innocent to be persuaded he’s innocent if he gets to choose to shut down the investigation.  Just by the way, it’s also possible that Trump is guilty and knows it perfectly well.  But even if he truly believes himself innocent, he can’t exercise his powers for the purposes of shutting down an investigation into himself without making himself the judge in his own case in precisely the way that our rule-of-law system abhors. 


Elsewhere, and in a more general way, Vermeule has argued that the idea that a person may not be the judge in his own case isn't really a categorical principle that obtains throughout our legal system.  Instead, he says, it is an idea whose force must be weighed from context to context, depending on the particular circumstances.  I think Vermeule says some valuable things on this topic, though I’m not persuaded by everything he argues.  For present purposes, though, what matters is not the merit of Vermeule’s overall view of that subject but merely whether his view commits him to a position on the self-dealing problem in the particular circumstances here at issue: that is, whether an official would act permissibly or wrongfully by firing a subordinate as a means of trying to terminate an investigation of himself.  Vermuele does not address that case squarely, and I think that on the best reading of his work suggests that he would think such behavior wrongful--which is not to deny that a reasonable reader might read his work and reach the opposite conclusion.  So while recognizing that Vermeule might think it acceptable for an official to try to terminate an investigation against himself, I do not think he is committed to that view.  

So as far as I know, then, Vermeule has written nothing contradicts the point I'm making.  When he argues that Trump’s innocence might have motivated him to fire Comey, he need not be endorsing the view that Trump’s innocence would make his decision to fire Comey acceptable And in my own comfortably held view, an official who fires a subordinate in the hopes of terminating an investigation into himself acts wrongly.  The wrong sounds in the same register as the formula that no person should be a judge in his own case.  It seems worthwhile, in the current conversation, to make that point explicit.  

Colluding with America’s foreign adversaries should disqualify a person for public office, and so should disregard for core principles of the rule of law.  For an American to have to write the preceding sentence at all is bizarre.  It’s not in the least surprising, given events of the past year.  But it’s bizarre nonetheless.

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