Balkinization  

Friday, January 20, 2017

A tale of two inaugurals: on populism and democracy

K. Sabeel Rahman

Donald Trump has been sworn in, and is now the President of the United States. His inauguration speech was notably and stridently populist.  While we have come to view populism as a newly-revived force of recent years, listening to Trump speech, I am reminded of the ways in which Obama himself also evoked the value of populism in his own first inaugural eight years ago, albeit in a radically different form.  As we look ahead to the politics of a Trump administration, it is worth remembering the power--and limits--of Obama's version of this same vision of restoring power to "the people".    
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On Adrian Vermeule's Law's Abnegation

Sandy Levinson

For the Symposium on Adrian Vermeule, Law's Abnegation.

This is an exceptional book that certainly deserves a wide readership within the community of academic lawyers and legal theorists.  I really don’t have very much to say about it of a critical nature, in part because I am most certainly not an expert in administrative law, the central topic of the book.  But I assume that I am part of the target audience, inasmuch as I’m interested not only in constitutional law, but also the broad contours of American constitutional and legal development, and the book offers an extremely interesting and challenging take on those topics. 
            The book both begins and ends with reference to Ronald Dworkin; indeed, the title itself is both a play on and critique of one of Dworkin’s major books, about “law’s empire” and the crucial role that courts play as “fora of principle.”  Vermeule, on the other hand, is arguing that the modern state is primarily an administrative state, where most public policy is in fact made, albeit under often very broad delegation from Congress, by administrative agencies.  More to the point is the fact that these agencies have been accorded more and more discretion by the judiciary.  What is so fascinating about Vermeule’s thesis—and sure to spark some vigorous debate (though not by me)—is that “law’s abnegation” is not the product of “external” political or social forces that seized control away from formerly powerful courts.  Instead, as he puts it, it is a product of a basically common-law process of doctrinal analysis and development. The “chastened and self-effacing version of law [Vermeule is describing] is itself a product of law’s processes, working themselves pure.”   That is, it is judges themselves who have recognized, over the past seventy-five years or so since the seminal case of Crowell v. Benson that begins the book, that it simply makes good sense, in terms of accepted legal principles, to defer to administrative agencies except under unusual circumstances.
            Vermeule argues that the extent of law’s abnegation is insufficiently recognized, not least because academics who teach (and edit casebooks on) administrative law tend to overemphasize (or misinterpret) a relatively few outlier cases in which the judiciary seems to discipline agencies instead of recognizing the overwhelming array of cases, both within the Supreme Court and “inferior” federal courts, that submit to decisions made by the agencies.  What is especially interesting, relative to the Dworkinian program of emphasizing “right answers” to all legal questions, is that such deference, almost by definition, requires judges to accept as perfectly acceptable answers that they themselves disagree with in terms of first-order validity.  Instead, they accept what by stipulation are “wrong answers” because administrative agencies are entitled to deference with regard to choosing answers.  Vermeule notes that Dworkin never once wrestled with the problem of administrative law or the administrative state.  He preferred to discuss a relatively few cases, almost none of them truly exemplary of the realities of modern statecraft and the ever-diminishing role of courts and judges.  Vermeule therefore offers a very powerful critique of the remarkably limited range of Dworkin’s actual reference to contemporary law even as he claims, presumably sincerely, to be working within the Dworkinian categories of looking for the “best fit” of decided caselaw and then the most attractive justification for what the fit reveals. 
            Along the way, he also delivers quite devastating critiques of three prominent defenders of what might be termed the “old order” of critics of the administrative state, Jeremy Waldron, Philip  Hamburger, and Gary Lawson.  The principal thrust of Vermeule’s argument is precisely that the developments they deplore are in fact “internal” to the operation of the separation of powers systems they claim to privilege and to the disciplined legal analysis of the judges whose roles they want to re-invigorate.
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Symposium on Adrian Vermeule, Law's Abnegation

JB

This week at Balkinization we are featuring a symposium on Adrian Vermeule's new book, Law's Abnegation: From Law's Empire to the Administrative State (Harvard University Press 2016).  We'll have contributions from David Dyzenhaus (University of Toronto), Jeffrey Pojanowski (Notre Dame),
and Gillian E Metzger (Columbia), as well as by Balkinization regulars Sandy Levinson, Andy Koppelman, Mark Graber and myself.  At the end of the week, Adrian will respond to the essays.

Thursday, January 19, 2017

Barack Obama's failed attempt to overthrow the Reagan Regime

JB

Over at Vox, I have a new piece expanding on my earlier assessment of Obama's presidency.

It's very hard to strike the right balance in such a piece.

On the one hand, I firmly believe that Obama is one of the most successful presidents in my lifetime. On the other hand, Obama set out to be something far more significant than that-- a truly transformational president (or, in Stephen Skowronek's terms, a reconstructive president). On that score, Obama failed, for reasons I describe in the piece.  We are still living in the Reagan regime.

Obama's failure at the latter goal, however, should not detract from what was, all things considered, a very successful presidency. Not every president-- even the most successful--is destined to be a Lincoln or an FDR. And, over time, I predict, Obama's reputation will only grow, especially among the people who were his political opponents today.

Near the end of the piece I point out how much turns on whether Hillary Clinton or Donald Trump succeeded Obama. And I note that even though Clinton lost a very close election, which could easily have gone the other way, that fact won't do Obama very much good.

Nevertheless, I close by pointing out that Obama probably created a space for the next Democratic president to be a truly transformational figure, if he or she can rise to the challenge:

[I]f Hillary Clinton had succeeded Obama, his prospects as a reconstructive leader would look far brighter. It is hard for a party to win the presidency three times running; achieving this usually signifies a political party’s dominance. Conversely, there are no cases of reconstructive presidencies (Jefferson, Jackson, Lincoln, FDR, Reagan) in which the other party regained the White House after two terms.

Clinton lost several key states by the closest of margins, and if only a few things had been different, the result could easily have gone the other way. But in constructing a president’s legacy, close doesn’t count. Because the Republicans eked out a victory, Obama won’t get the benefit of a Democratic successor to protect his accomplishments. Instead, Republicans will control the White House and both houses of Congress; they will have four years to push their programs, issue new regulations, and appoint scores of life-tenured federal judges. For better or worse, Donald Trump’s excruciatingly narrow win means that we still live in a Republican-dominated political world.

All is not lost for Democrats, however. Obama may not have dismantled the Republican fortress, but he put serious cracks in it. History suggests that Donald Trump, for all his bluster, heads a seriously weakened coalition and a deeply fractious party. All the signs point to Trump being a disjunctive leader like Hoover or Carter — arriving at the tail end of the Reagan regime. When such presidents fail, the opposition party is poised to begin a new era of politics. Obama took the Democrats to the edge of the Promised Land; the next Democratic president may be able to bring them across the river Jordan.

The Supreme Court and President Trump Off to a Not-So-Great Start

Gerard N. Magliocca

After Barack Obama was elected President in 2008, Chief Justice John Roberts invited the President-elect to pay a courtesy call on the Court prior to his inauguration. The President-elect and Joe Biden accepted his invitation  and met with eight of the nine Justices (Justice Alito was the only no-show).

As far as I can tell, no similar invitation was issued by the Chief Justice to President-elect Trump, or else the President-elect declined the invitation. I'd love to hear an explanation for this.

UPDATE:  There is a story this evening that says the Chief Justice did invite Trump to visit the Court, but they could not work out a convenient time.


President Mayhem (with a war powers prediction)

Stephen Griffin

You may have seen those commercials for Allstate that feature a character called "Mr. Mayhem," that's what I had in mind.  Following up, we can usefully define the notion of the "Trump premium."  The premium is the difference between how Trump will operate as president and the other "regular Republican" candidates in the mix a year ago.  Some of the policies being announced, particularly by members of Congress, would be largely the same were we about to experience the Cruz administration, the Rubio administration and so on.  After all, the Republican Congress made a number of practice runs, proposing legislation that they knew President Obama would veto.  But there are some differences as well.

Before providing my top two contenders, I will observe that there are indeed some pretty clear similarities between the anxiety about Trump and the anxieties some "experienced Washington hands" had about Ronald Reagan.  Of course, Reagan had experience as a governor, I certainly don't want to ignore that.  But many worried about Reagan's ability to handle the 4 a.m. call and so forth.  And in truth, Reagan did not function like many prior presidents, believing in "Cabinet government" (like a CEO), delegating many responsibilities and showing little interest in policy details.  But Reagan did have clear policy priorities and a sense of the moment.


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Wednesday, January 18, 2017

A Note on the Original Meaning of "Emolument"

John Mikhail

In connection with last week’s press conference, Donald Trump’s lawyers have published a white paper on presidential conflicts of interest.  With respect to the Foreign Emoluments Clause, the authors make at least three noteworthy claims.

First, endorsing originalism, they maintain that “the scope of any constitutional provision is determined by the original public meaning of the Constitution’s text.  Here that text, understood through historical evidence, establishes that foreign governments’ business at a Trump International Hotel or similar enterprises is not a ‘present, Emolument, Office, or Title.’”

As Michael Ramsey notes, this embrace of originalism as the only suitable and definitive mode of constitutional analysis is a surprising and perhaps ill-advised posture for Trump's lawyers to adopt in these circumstances.  It is probably best understood as ideological in the sense Professor Ramsey identifies.

Second, Trump's lawyers assert that “an emolument was widely understood at the framing of the Constitution to mean any compensation or privilege associated with an office—then, as today, an ‘emolument’ in legal usage was a payment or other benefit received as a consequence of discharging the duties of an office” (original emphasis).  Drawing out the implications of this assertion, the authors write: “Emoluments did not encompass all payments of any kind from any source, and would not have included revenues from providing standard hotel services to guests, as these services do not amount to the performance of an office, and therefore do not occur as a consequence of discharging the duties of an office.”

Third, and relatedly, the authors contend that the original meaning of “emolument” did not include ordinary "fair-market-value transactions," such as buying or receiving interest payments on government bonds.

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Tuesday, January 17, 2017

Bo Burt on "Justice and Empathy"

Mark Tushnet

I've just read the manuscript of Bo Burt's forthcoming posthumous book, "Justice and Empathy." The book restates themes from his earlier work. Given my background, I was especially taken with his use of psychoanalytic theory to describe the psychological dimensions of domination and subordination. I recommend the book, particularly because Burt's sensibility is under-represented in contemporary scholarship. (Mike Seidman's work on "unsettlement" has a family resemblance to Burt's approach.)

Were I to write a longer review of the book, I'd raise several questions. (1) Much of Burt's discussion involves how those in positions of domination can come to have empathy for those they are subordinating. But, it seems to me, it's an implication of his approach that those being subjugated should have empathy for their oppressors. (The literature on the psychodynamics of sado-msochism -- on both sides -- and that on Hegel's account of master-slave relations seems relevant here.) And then the normative implications of empathy come into pretty sharp relief. One such implication might be that gay rights supporters should understand that carefully crafted religious accommodations to gay rights legislation might be desirable (though a lot is concealed in "carefully crafted" -- for example, can such accommodations be crafted in ways that don't normatively validate the claims to justified subjugation implicit or explicit in the religious beliefs being accommodated?).

(2) As in his earlier work, Burt emphasizes that well-designed remedial schemes are often desirable because they allow contending parties -- and in particular the previously dominant group -- to work out "for themselves" but under judicial pressure (not compulsion) how to deal with the transformed social relationships they are beginning to experience. Here I'd point to recent developments in scholarship on comparative constitutional law and its treatment of "engagement" remedies such as those developed by the South African Constitutional Court. But I'd also note that the literature on such remedies emphasizes that (in my terms) at their most effective they still impose interim costs on the previously subjugated group. It might be that a short sharp shock could reach the same end state with lower interim costs -- though of course that's an empirical question. (I can't refrain from picking at a scab here and saying that that's what I had in mind when I wrote of "taking a hard line" on religious accommodations.)

(3) Burt contrasts an authoritarian, "command" mode of judicial opinion-writing, with his preferred method of decision that clearly leaves things open to iterative development. I wonder, though, whether this under-estimates the force of classical Legal Realist arguments about the inevitable openness of precedents: According to those arguments even the most seemingly "command"-like opinion leaves so much open that it's hard for me to distinguish between the two modes Burt describes (and his case studies, though of course thinly developed -- the book was not completed when he passed away --, seem to me as consistent with my take on this matter as they are with his).

Monday, January 16, 2017

More on Hamilton, Jefferson, Burr, and the Election of 1800

Marty Lederman

Jack’s post brings to mind a climactic scene of Lin-Manual Miranda’s Hamilton, in which Alexander Hamilton’s fellow Federalists ask him which of two Democratic-Republican politicians—Aaron Burr or Thomas Jefferson—he would choose to be President at the conclusion of the election of 1800.  There’s a dramatic pause in the musical as the young Republic waits with bated breath; finally, Hamilton renders his startling endorsement:  He opts for Jefferson, his political nemesis and the very embodiment of the Democratic-Republican party that had just routed Hamilton’s Federalists—the man more likely than any other to vanquish virtually all the principles of governance that Hamilton held dear:

If you were to ask me who I’d promote . . .
Jefferson has my vote.
I have never agreed with Jefferson once;
We have fought on like seventy-five different fronts.
But when all is said and all is done,
Jefferson has beliefs. Burr has none.

In Miranda’s telling, Hamilton’s endorsement clinches the election:  Jefferson becomes President, and Burr has to settle for Vice President.  (Then, three years later, Vice-President Burr, understandably resentful of Hamilton’s repeated efforts to stymie his advancement, kills Hamilton in a duel.)

Many modern viewers/listeners undoubtedly wonder what’s going on here.  Once sitting President Adams, a Federalist, had been defeated, how was it that two Democratic-Republican candidates were “tied” in the election?  Who were the “delegates” who gathered to break the tie?  Why did the loser of the delegates’ vote become Vice President?  And why in the world might Hamilton’s endorsement have been important, given that he was neither a Democratic-Republican nor an officeholder?

Here’s a bit of an explanation that I’m providing to my Constitutional Law class this semester.  After describing how Jefferson came to be elected, I’ll follow up with some additional remarkable passages from Hamilton’s letters on the 1800 election—including further warnings about Burr that are eerily resonant today.


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Alexander Hamilton explains why Aaron Burr should not become president

JB

After the 1800 election was thrown into the House of Representatives, Alexander Hamilton wrote this letter urging Representative James Bayard of Delaware to support Thomas Jefferson over Aaron Burr.  Hamilton argued that Burr, whom he knew well, had qualities that would make him especially dangerous if he ever gained the powers of the presidency. In particular, Hamilton noted that Burr had no principles, constantly broke his promises, delighted in deceiving the credulous, was heavily in debt, and could easily be corrupted by foreign powers. "Disgrace abroad [and] ruin at home," Hamilton concluded, "are the probable fruits of his elevation."

From the Founders Online:

From Alexander Hamilton to James A. Bayard, 27 December 1800

To James A. Bayard

New-York December. 27th. 1800.

Dear Sir

Several letters to myself & others from the City of Washington, excite in my mind extreme alarm on the subject of the future President.

It seems nearly ascertained that Jefferson & Burr will come into the house of R[epresentative]s. with equal votes, and those letters express the probability that the Fœderal Party may prefer the latter. In my opinion a circumstance more ruinous to them, or more disastrous to the Country could not happen.

This opinion is dictated by a long & close attention to the character, with the best opportunities of knowing it; an advant[ag]e for judging which few of our friends possess, & which ought to give some weight to my opinion.

Be assured my dear Sir, that this man has no principle public or private. As a politician his sole spring of action is an inordinate ambition; as an individual he is believed by friends as well as foes to be without probity, and a voluptuary by system, with habits of expence that can be satisfied by no fair expedients. As to his talents, great management & cunning are the predominant features—he is yet to give proofs of those solid abilities which characterize the statesman.

Daring & energy must be allowed him but these qualities under the direction of the worst passions, are certainly strong objections not recommendations. He is of a temper to undertake the most hazadrous enterprizes because he is sanguine enough to think nothing impracticable, and of an ambition which will be content with nothing less than permanent power in his own hands.

The maintenance of the existing institutions will not suit him, because under them his power will be too narrow & too precarious; yet the innovations he may attempt will not offer the substitute of a system durable & safe, calculated to give lasting prosperity, & to unite liberty with strength. It will be the system of the day, sufficient to serve his own turn, & not looking beyond himself. To execute this plan[,] as the good men of the country cannot be relied upon, the worst will be used.

Let it not be imagined that the difficulties of execution will deter, or a calculation of interest restrain. The truth is that under forms of Government like ours, too much is practicable to men who will without scruple avail themselves of the bad passions of human nature. To a man of this description possessing the requisite talents, the acquisition of permanent power is not a Chimæra.

I know that Mr Burr does not view it as such, & I am sure there are no means too atrocious to be employed by him. In debt vastly beyond his means of payment, with all the habits of excessive expence, he cannot be satisfied with the regular emoluments of any office of our Government. Corrupt expedients will be to him a necessary resource. Will any prudent man offer such a president to the temptations of foreign gold?

No engagement that can be made with him can be depended upon. While making it he will laugh in his sleeve at the credulity of those with whom he makes it—and the first moment it suits his views to break it he will do so.*

Let me add that I could scarcely name a discreet man of either party in our State, who does not think Mr Burr the most unfit man in the U. S. for the office of President. Disgrace abroad ruin at home are the probable fruits of his elevation.

To contribute to the disappointment and mortification of Mr J[efferson]. would be on my part, only to retaliate for unequivocal proofs of enmity; but in a case like this it would be base to listen to personal considerations. In alluding to the situation I mean only to illustrate how strong must be the motives which induce me to promote his elevation in exclusion of another.

For Heaven’s sake my dear Sir, exert yourself to the utmost to save our country from so great a calamity. Let us not be responsible for the evils which in all probability will follow the preference. All calculations that may lead to it must prove fallacious.

Accept the assurances of my esteem,

A Hamilton.


Authorial notes

[The following note(s) appeared in the margins or otherwise outside the text flow in the original source, and have been moved here for purposes of the digital edition.]

* A recent incident will give you an idea of his views as to foreign politics. I dined with him lately. His toasts were “The French Republic.” “The commissioners who negotiated the convention.” “Buonaparte” “The Marquis La Fayette.” His doctrines that it would be the interest of this country to permit the indiscriminate sale of Prizes by the Belligerent powers & the building & equipment of vessels; a project amounting to nothing more nor less (with the semblance of equality,) than to turn all our naval resources into the channel of France, and compel G. Britain to war. Indeed Mr Burr must have war as the instrument of his Ambition & Cupidity. The peculiarity of the occasion will excuse my mentioning in confidence the occurrences of a private Table.

"Important Shifts in Constitutional Doctrines"

Mark Tushnet

On July 10, 1939, Frank Hogan, the President of the American Bar Association, spoke at the ABA's annual meeting in San Francisco. He was disturbed by the Supreme Court's recent decisions. The phrase "shifts in constitutional doctrine," he said, was "but a phrase which describes the abolition of stare decisis; the replacing of stability by instability, the substitution of uncertainty for certainty, and of plenary power for limitations upon power."

Noting that "many of the historic dissents of Holmes and Brandeis have now been transferred from the minority to the majority side of the Court," he wondered whether "the day must come when the future chroniclers of our judicial history, in according unstinted praise to the rugged sturdiness of McReynolds and Butler, shown in their courageous efforts to preserve landmark after landmark of the law, will likewise record that their ringing dissents in this day became rules of decision in a later generation."

Is that time (nearly) upon us? I suppose it would be difficult to rehabilitate McReynolds's reputation as a person, though Justice Douglas, among others, had some nice things to say about him as a person (and he was apparently quite nice to the Court's staff, though not his personal staff). And the writing styles of Butler and, especially, McReynolds are uncongenial to modern readers in ways that Holmes's and Brandeis's dissents were not, either to readers in 1939 or to readers today. Still, what about substance?

One thing that Hogan did as ABA President was to name a Committee on the Bill of Rights, which filed an important amicus brief on behalf of the CIO in Hague v. CIO -- perhaps because the ABA's leaders saw in the petty local tyranny of Frank "I Am the Law" Hague the risks of executive excesses that they also feared -- or, as they saw it, experienced -- with Franklin Roosevelt. (Incidentally, the precise context of Hague's "I am the law" statement makes it somewhat less damning than initially appears.)

Sunday, January 15, 2017

So what would it take to think about constitutional revision?

Sandy Levinson

It is a commonplace among constitutional design buffs that, with some interesting exceptions, significant constitutional change usually takes place against the background of catastrophes or, at least, train wrecks.  The paradigm cases for the former are Germany and Japan, though the spate of constitution drafting following the dissolution of the Soviet Union or the end of apartheid in South Africa can also be cited for the general proposition.  And, indeed, one could cite the so-called Reconstruction Amendments as well, for they were clearly responses to the carnage of secession and civil war (and, of course, if one is an Ackermanian, the Fourteenth Amendment especially is hard to square with any conventional theory of Article V amendment).  If, on the other hand, things seem to be going reasonably well, then why think of constitutional reform?  The fact that things are going well is taken as evidence--violating the correlation is not causation dictum--that the constitution in question is really working wonderfully, or that, at least, is isn't sufficiently broken to need any fixing. So let sleeping dogs lie, etc.

So where are we right now in the US?  My own view, argued over past six months, and not only since the "election" of the sociopath, is that we are in the most serious political crisis since 1860.  I think that each day demonstrates more and more the psychological divide in the country at large in which we increasingly view Others as the Schmittian enemies who must be defeated at almost any cost.  I am not at all immune from that, given my own views of the sociopath and the truly deplorable people who constitute a significant part of his base and, more to the point, those he is bringing into the White House itself, beginning with Steve Bannon.  But that is not the point of this posting.  Rather, since I continue to think that it is the Constitution itself that helps to explain our deplorable situation, I continue to want a new constitutional convention (believe it or not).

The most common response, other than that I'm crazy, is that the country is just too divided to make a convention other than a nightmare.  I.e., it is precisely because we are close to/in a train wreck that we shouldn't even think of such a thing.  But, of course, when I first started suggesting the desirability of a convention some years ago, the response then was that the country was in fine shape and that only an academic airhead could think that the Constitution needed any deep scrutiny and changes.  These arguments are obviously in tension with one another.  I find myself thinking of Tom Friedman's analysis of Israel's position vis-a-vis serious negotiations with Palestinians.  Either Israel claims to be facing serious terrorist threats and can't be expected to negotiate under such pressures or things are going so well that Israel feels no pressure to negotiate.  In any event, the status quo continues ad infinitum, to the detriment of both Palestinians and anyone who cares about maintaining an Israel worthy or respect and admiration.  So it seems to be with the Constitution.  There never is an apt time for a convention (other than the summer of 1787) either because the times are too fraught (like now) or things are going too well.

Let's start with low-hanging fruit:  Why isn't there a national movement, beginning yesterday, to get rid of the indefensible electoral college?  Why should this vestige of slavery, with its perverse incentives to engage in local vote suppression (amply vindicated in Wisconsin), last one more election cycle?  But we might also have a debate about the necessity of repealing the 1842 act that requires single-member districts in the House, which accounts for much of the degradation of that venerable body. In theory, all that is required is a new statute, but, of course, one cannot expect the beneficiaries of the single-member district process to get rid of it.  Remember Roche's dictum:  Power corrupts, and the prospect of losing power corrupts absolutely.  And, alas, we can't engage in California-style initiative and referendum to repeal the act and replace it with multi-member districts elected via some form of proportional representation.  This means that only a convention could do it. And so on.

I agree, incidentally, that things can get worse.  Perhaps we really will  drift into a more genuine civil war, provoked by bloodshed attached to Trump's desire to crack down hard on any and all undocumented aliens and their families.  Or perhaps some of his own base will start rioting when they realize they're going to lose their medical coverage thanks to Paul Ryan and his merry ban of Randians.  Or the sociopath will blunder into war with Iran or provoke a depression by repudiating the national debt, since only suckers ever pay all their debts (certainly the sociopath did not).

The central question remains whether we as a public are capable of any kind of genuine "reflection and choice" about how we are to be governed or whether we really are condemned to be the passive objects of whatever the political winds bring us.  I fear the latter is the case, not least because we don't trust one another sufficiently to risk the kind of national dialogue that a convention would require.  So will our experiment in a Republican Form of Government end in a bang or a whimper?
We'll begin finding out after Friday.

Maintaining Constitutional Checks on the Cusp of a Trump Administration

Jonathan Hafetz

On January 18, the Supreme Court will hear argument in Ziglar v. Abassi (formerly Turkmen v. Ashcroft), the first of two cases this Term raising the question of civil liability for constitutional violations by federal officials. (I previously wrote here about the other case, Hernandez v. Mesa, which is scheduled for argument in February). Abassi will be heard by six members of the present eight-Justice Court (Justices Kagan and Sotomayor are recused because of their earlier participation in the case as the former Solicitor General and as a judge on the Second Circuit, respectively).

Abassi is a class action arising out the arrests and detention of more than 750 men from South Asian and Middle Eastern countries in immigration sweeps in the United States following the 9/11 attacks. The men, many of whom were arrested on nothing more than vague tips about “suspicious” Arabs, were detained for minor visa violations. None was ever connected to the 9/11 attacks or convicted of terrorism. While the suit seeks a remedy for past harms, the Court will hear it against the backdrop of an incoming administration that has raised palpable fears about executive branch overreach, placing the question of civil accountability -- and importance of deterring future constitutional misconduct -- into sharp relief.

Plaintiffs in Abassi brought claims against two sets of defendants: senior level Justice Department officials, including former Attorney General John Ashcroft and former FBI director Robert Mueller; and wardens of the federal detention center in New York where the plaintiffs were held. They assert that the defendants arrested them and subjected them to uniquely harsh and abusive conditions of confinement based solely on their race, religion, and ethnicity. Under the government’s “hold until cleared” policy, federal officials continued the men’s detention in solitary confinement in a super-maximum wing of a federal facility—without any individualized determination of criminality or a connection to terrorism—until they were formally cleared by the Justice Department, a process that took months in many cases.

In 2009, in Ashcroft v. Iqbal, the Supreme Court addressed similar claims arising out of the sweeps. There, the Court held that the claims did not plausibly allege Ashcroft and Mueller’s personal involvement in the alleged policy of discriminatory treatment. Plaintiffs subsequently amended their complaint, bolstering it with nonconclusory allegations against Ashcroft and Mueller, based partly on findings of two Inspector General reports highly critical of the sweeps. They describe Ashcroft and Mueller’s role at the front and back ends: from approving arrests based solely on the men’s race, religion, ethnicity, or country of origin, to approving their continued detention in harsh and punitive conditions notwithstanding the absence of any information connecting them to the 9/11 investigation or terrorism more generally. A divided panel of the U.S. Court of Appeals for the Second Circuit found the allegations plausible and refused to dismiss. (As to Ashcroft and Mueller, the Second Circuit limited its ruling on discriminatory animus to their respective roles in continuing plaintiffs’ exposure to harsh conditions of confinement, thus excluding potential liability for their arrest and initial detention). The Second Circuit denied rehearing en banc by a 6-6 vote, over a vigorous dissent by Judge Raggi, who had previously dissented from panel decision.

If the Court finds the allegations plausible—and every judge below recognized that plaintiffs at least stated plausible claims against one federal warden for deliberate indifference to their physical and verbal abuse—the Court will address whether the constitutional rights were sufficiently established to defeat the defendants’ assertion of qualified immunity.  Here, the defendants emphasize the unique post-9/11 threat and security challenge.  But despite the unprecedented nature of the terrorist attack, this assertion seems insufficient given the clarity and strength of the constitutional norm against facial classifications based on race, religion, and ethnicity.  Notwithstanding the extraordinary law enforcement challenges presented by the 9/11 attacks, a reasonable official should have known that targeting individuals and detaining them in extraordinarily harsh conditions—and continuing the mistreatment for months after the attacks—solely because they were Arab or Muslim violates the Constitution.

The most significant and far-reaching issue, however, concerns the availability of a remedy under Bivens v. Six Unknown Named Agents, assuming clearly established constitutional violations occurred. In particular, the senior Justice Department defendants argue that a combination of special factors all arising in a new context—high-level decisions concerning the detention of foreign nationals following an unprecedented terrorist attack—counsel hesitation and foreclose a remedy. The Supreme Court, however, has never recognized either national security or immigration as Bivens special factors, even for high-level federal officials. As to national security, the Court in Mitchell v. Forsyth, stressed the importance of ensuring a remedy is available where federal officials rely on claims of national security since it is precisely in those cases that officials are more prone to commit constitutional abuses through overzealous action. Although the Court held that the Attorney General in Mitchell was protected by qualified immunity against claims for his approval of warrantless electronic surveillance, it never questioned the availability of a Bivens remedy merely because the case implicated national security. The Supreme Court in Carlson v. Green, along with lower courts in multiple cases, have recognized a Bivens remedy for unconstitutional treatment in detention.

Creating an exception to Bivens because a case involves high-level decisions and implicates national security—whether alone or in combination with immigration—would be inconsistent with this basic understanding and could have significant ramifications.  Not only would it immunize federal officials from civil liability for racial and religious discrimination in the post-9/11 immigration sweeps, one the most notorious violations of civil liberties during that period. It would also have a dangerous signaling effect, potentially emboldening an incoming president who has openly endorsed Islamophobic policies. Whether the potential availability of a damages remedy would deter Trump (or a future president) from engaging in the type of dragnet sweeps and abuse against Muslim and Arabs (or other vulnerable groups) is uncertain. But the Court should not remove this check against revival of the discredited legacy of Korematsu v. United States. It should instead take the opportunity Abassi offers to affirm rule of law values by maintaining the possibility of a Bivens remedy, not only against rogue federal agents, but also against the most senior government officials.

[Disclosure: I serve as a co-counsel to civil rights organizations that filed an amicus curiae brief in the Supreme Court supporting the plaintiffs in Abassi.]

Tuesday, January 10, 2017

Trump/Berlusconi

Stephen Griffin

Perhaps like others within digital earshot, I spent part of my holiday reading Alexander Stille’s valuable book on the career of Italian businessman/politician Silvio Berlusconi, The Sack of Rome.  If you can’t read the entire book, I recommend that you borrow a copy from your local library and read from page 255 to the end.  Here Stille analyzes why Italians were willing to vote a businessman into power who was not politically experienced and had no detailed views on policy.  Stille then develops some parallels between what went on in Italy in the 1990s and the circumstances (circa 2006) in the US, anticipating the Trump phenomenon in a number of respects.

Some similarities between Berlusconi and Trump are fairly evident.  There are the offensive remarks explained away as “jokes,” for example.  Both men operated what amounted to family businesses, while posing as experienced corporate CEOs.  We’ll see what happens with respect to Trump’s many potential conflicts of interest, but Berlusconi probably exceeded Trump on that score by many times, coming eventually to dominate the entire Italian economy, at least according to Stille.  Neither Berlusconi nor (probably) Trump liked to hold press conferences or understood the role of an independent press.  Stille makes the interesting comment that Berlusconi treated government like a show or performance and did not engage much on policy details.  Berlusconi was supported by some because he was perceived as pro-business but they “’didn’t realize he was only pro his own business.’”

From Stille’s book we can construct an explanation as to why Trump has not faced more blowback with respect to refusing to disclose his tax returns or other aspects of his business.  Berlusconi did much the same, but benefited from a generalized suspicion of government and the lack of a habit, on the part of some Italians, of paying their taxes regularly.  This should inspire us to ask what was the attitude of Republican voters toward the IRS pre-Trump?  I think we know the answer to that one – perhaps their attitude was never great to begin with, but to Republicans, the IRS was mired in a massive scandal which had to do with the heavy-handed use of government power against conservative groups.  Why hold Trump to account when the IRS had not been put to rights?

The key explanation Stille advances that is so clearly relevant to our situation in the US today was that Berlusconi took advantage not only of a lack of trust in government generally, but a situation in which parties of the left and right were perceived as having failed the Italian people, both-party failure as it were.  This meant that when Berlusconi was criticized, he could always respond by running against politicians (this should sound familiar) and politics as usual.  The ultimate consequence as Stille describes it was rule by plebiscite rather than the rule of law, something that should sound familiar to scholars who have analyzed Nixon’s presidency.



Monday, January 09, 2017

Standing to Raise An Anti-Nepotism Claim?

Gerard N. Magliocca

Media reports say that the President-elect will name his son-in-law to a senior staff position in the White House. This will lead to claims that the appointment is invalid because federal law bars the President from hiring a relative to a federal position. (Arguably the remedy for violating this statute is that Trump's son-in-law just cannot receive a salary, but leave that aside for now).

I have previously expressed doubts about whether this statute (5 U.S.C. Sec. 3110) is constitutional as applied to the President's appointment of his White House staff. Even if it is constitutional, though, I cannot see how anyone would have standing to challenge the appointment. How would the presence of Trump's son-in-law in the White House inflict a concrete harm on any particular person?


Why do we still have the filibuster?

Sandy Levinson

The Senate has now been in session a week, and the filibuster remains untouched.  Why?  One possibility is that Mitch McConnell, the Senate Majority Leader, is a man of integrity who actually believes in the importance of safeguarding minority rights. I reject the plausibility of any such explanation:  There is no evidence that McConnell has any integrity at all;  he is a Republican apparatchnik whose sole and exclusive concern is the success of the Republican Party.  He correctly believed that it would not help the Republican Party to be seen as collaborating with President Obama, so he devoted the last eight years to making sure that Obama would be able to claim no accomplishments that required any cooperation from the Republican Party.  He guessed wrong on the 2012 election, but we ought to recognize that it was in fact a close call.  And it appears that the Republicans might have guessed right on what they could do, propagandistically, with regard to discarding Obamacare and riding it to victory in 2016.

And McConnell evidenced his full-scale partisanship by refusing to give Merrick Garland even the courtesy of a hearing.  (Does anyone seriously believe, incidentally, that he would have allowed Hillary Clinton, had she won without carrying the Senate, to name anyone to the Supreme Court? I NOTE FOR THE RECOFD THAT NONE OF THE DISCUSSANTS HAS SUGGESTED THAT MCDONNELL WOULD IN FACT HAVE DONE SO.  INSTEAD, ONE CAN BE CONFIDENT HE WOULD HAVE SUBMITTED TO TED CRUZ AND OTHER MAD-DOG REPUBLICANS WHO WOULD HAVE ARGUED THAT CLINTON WAS AN ILLEGITIMATE PRESIDENT AND DID NOT EARN THE RIGHT TO NAME ANYONE TO THE SUPREME COURT.)
Unlike some, I don't think that he violated the Constitution in doing so, not do I think it would violate the Constitution to leave the Scalia seat vacant for four more years.  I strongly hope that the Democrats filibuster anyone nominated by Trump and, at the least, force the Republicans to eliminate the filibuster for the Supreme Court.  If one wants to be generous to McConnell, one might concede that he genuinely believes that the country would be better off with a conservative Supreme Court, so it's not the same kind of partisanship as the abject refusal to cooperate with a sitting Democratic President for fear that he will profit electorally from any success.

So return to the question, why do we still have the filibuster?  Once one rejects any "principled" behavior by McConnell, as I think we must, then there are two other possibilities.  The first is that, as Washington told Hamilton, "you don't have the votes." I.e., there were at least three Republicans who, for whatever reason, were unwilling to do in the filibuster, even if, by definition, it will make it more difficult for the Republicans to pass their alleged agenda for the nation.  The presupposes, incidentally, that every Democrat would vote to retain the filibuster, so that there must be at least 51 Republicans to outvote the Democrats plus Joe Biden, who remains President of the Senate until January 20.  Perhaps that is the best explanation.  If McConnell were confident he had the votes, then why not use them?

But let me suggest another one.  McConnell doesn't want to eliminate the filibuster precisely because it would force the Republican Party to take full responsibility for governing.  He realizes that it would be insane, for example, simply to repeal Obamacare without a genuine replacement, which the Republicans simply don't have.  So it is far better to be able to blame recalcitrant Democrats for defeats of the Republican program (and allow unscrupulous Republicans to vote for idiotic legislation secure in the belief that it will not in fact get through the Senate) than to take genuine responsibility for the legislative program.  If one adopts this perspective, which I obviously think has something to be said for it, then it is the Democrats who should in effect be criticized for their insistence on maintaining the filibuster.  They are helping to keep providing the rope by which the GOP hopes to hang Democrats in the 2018 mid-terms and then the 2020 general election.  And, of course, if the filibuster is maintained, and if the Democrats win in 2020, as one might well predict they will, then it would in fact be impossible for the Democrats to succeed in passing their own programs, even assuming a miracle recapture of both the House and the Senate, given Republican obstructionism in the Senate.

To be sure, an added amount of truly dreadful legislation would be passed in the absence of the filibuster, and the Republicans could pack the Supreme Courtt (as they can do with the "inferior" federal judiciary, given the absence of a filibuster there) should anything happen to Ginsburg, Breyer, or Kennedy.  No doubt most Democrats think it important to be able to block the worst GOP excesses.  I join in that hope, but what I really want is for some honorable Republicans--and I continue to believe that there are some such in the Senate--to be forced to join with Democrats in saying no to the craziness of the Trump-Ryan Administration.  If there are no longer any honorable Republicans, then we need to think about even more serious responses, including secession.

In any event, as Heather Gerken so well put it, we are in the eye of a hurricane.  The US is in a struggle for survival as a nation worth cherishing, and we must think and behave accordingly.  Democrats must be far more calculating than is our/their wont.  The refusal of McConnell to call for eliminating the filibuster is in fact a poisoned chalice and should be recognized as such.  The Democratic Party should become a full-scale Party of Opposition (taking its lessons from McConnell over the past eight years) and doing whatever it can to make it obvious to one and all, especially the pathetically deluded Trumpistas who believe that he or the GOP really care one whit about the fate of the working class, that the GOP is in control and should be assessed on what it does with its power.

Perhaps I am wrong in my analysis.  But I will be intrigued by the reasons that any discussants give for the Republican failure to eliminate the filibuster.

[UPDATE:  ANY REMAINING ILLUSIONS ABOUT THE INTEGRITY OF MITCH MCDONNELL SHOULD BE DISPELLED BY HIS INSISTENCE THAT THE SENATE RUSH TO CONFIRM ALL OF TRUMP'S NOMINEES TO THE CABINET EVEN IN THE ABSENCE OF TRADITIONAL INFORMATION ABOUT POTENTIAL CONFLICTS OF INTEREST, ETC.  AS THE TIMES HAS NOTED, EVERY PRESIDENT SINCE GEORGE H. W. BUSH HAS HAD AT LEAST ONE NOMINEE GO DOWN BECAUSE OF INFORMATION DISCOVERED IN THE RUN-UP TO CONFIRMATION.  MCCONNELL IN 2009 INSISTED ON SCRUPULOUS ADHERENCE TO THE RULES.  NOW, PERHAPS HAVING BEEN BOUGHT OFF BY THE NOMINATION OF HIS WIFE TO BE SECRETARY OF TRANSPORTATION, THOUGH ONE SUSPECTS HE WOULD BE ADHERING TO THE REPUBLICAN VERSIN OF THE FUHRER PRINZIP EVEN IF HE DIDN'T HAVE THE FAMILIAL INCENTIVE TO DO SO.  IN ANY EVENT, I FAIL TO UNDERSTAND WHY ANY DISPASSIONATE ANALYST WOULD RESPECT HIM AS A PUBLIC SERVANT.]




Sunday, January 08, 2017

Do the Rules of the Game Matter When You Are Playing in a Hurricane?

Heather K. Gerken

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            Thanks to both Rick Hills  and Ilya Somin for their smart replies to my posts (here and here).  I just wanted to add one addendum to Rick Hills’ illuminating argument about why legal institutions help politics work.  It’s a point I made a few days ago on the AALS’s election law panel, where I questioned whether political polarization had undermined some of the basic assumptions of the field.  My response to Rick raised essentially the question -- whether political polarization has undermined some of the premises that have traditionally undergirded federalism debates.  Colloquially, the worry can be expressed this way:  do the rules of the game matter when it’s being played in a hurricane? 

Rick writes that “the core of our disagreement is . . . whether and how legal institutions promote pluralist politic.”   That’s a failure of exposition on my part, because I don’t think Rick’s summary captures the core of our disagreement.  I have always believed that institutions and legal rules shape politics – that the rules of the game shape how the game is played.  Indeed, almost all of my work has been devoted to this idea.  I also take that claim to be the fundamental premise of both of my fields, election law and constitutional law, though Daryl Levinson’s important Foreword may change our thinking on these questions in the coming years. 

            My worry – certainly not a new one -- is that the gale forces of polarization are putting more pressure on our institutions than they can bear.  And by “polarization,” I am referring to the tribal dimensions of polarization – the fact that both sides view the other’s positions with deep skepticism, even hostility.   The core of my disagreement with Rick, then, isn’t whether legal institutions promote pluralist politics generally, but whether they are strong enough to do so at this moment in time.

            Rick argues, sensibly and intelligently, that legal institutions generally – and federalism in particular – shape our politics.  He further explains how federalism can promote pluralist politics.  Those are completely intuitive points. As I’ve said, the premise of most work in constitutional law and election law is that the rules of the game determine how the game is played.  Indeed, Sam Issacharoff has made the same kind of point about political parties in his recent Frankel lecture.  There he suggests that legal changes have systematically disabled the leadership of political parties from exercising sway over their candidates.  As a result, party leaders cannot create the necessary incentives for moderation, and office holders are being pushed from the center.   

            I think it’s possible to agree with everything Rick and Sam say and still wonder whether they are right.  As I noted in my response to Rick, institutions that “help politics work depend on politics to work.”  At some point, politics may become too powerful a force for institutions to play this beneficial role.

            To ground this, it’s probably easiest to start with Sam’s excellent paper, which perfectly embodies what I take to be the core commitments of the field.  His paper asks how we can reduce the effects of polarization through legal/institutional change.  But, as I’ve recently written, the real question may be whether we can. It’s possible that legal changes contributed to rising levels of polarization; but it’s also possible that the two phenomena occurred simultaneously or, at the very least, that the latter matters a good deal more than the former.  Sam offers a cheerful tale – give more power to the party leaders, and they’ll rein in the extremists.  That’s a story I would have credited instantly a few years ago.  But now I fear there are at least two other possible endings to Sam’s story.  The first is that even an empowered leadership structure simply can’t exercise enough control over its members to make a difference. The second is that it is possible for the leadership to exercise control over its member, but that shift will only ensure that the leadership is targeted by the same forces now pushing candidates to the extremes.  Put more succinctly, if the DNC has more power, extremists will target the DNC, and the results will be little different. 

Sam, in short, wants to give the party leaders a better hand to play.  But it doesn’t matter how many trump cards you hold if you are playing in a hurricane. 

            My response to Rick follows roughly the same line. 
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Thursday, January 05, 2017

Electors and Emoluments: A Developmental Perspective

Stephen Griffin

As far as I can see, the Trump presidency is headed for something of a legal train wreck over the issue of conflicts of interest, given that Trump pretty clearly does not want to divest himself of ownership of the Trump organization, including its overseas ventures.  But I’ll leave his refusal to “normalize” his presidency aside for now, in favor of commenting on two recent controversies over the interpretation of the Constitution – the bid to have electors exercise their own judgment in choosing someone other than Trump or Clinton and the debate over the meaning of the foreign “emoluments” clause in Article I.  The latter is of course relevant to the legal problems Trump faces, but my concern here is to take timely advantage of these disputes to make a point about how constitutional interpretation should be approached.

Beginning at a high altitude, I believe the right place to start is with the most important question the American constitutional project faced at the outset – how the Constitution would be enforced.  Any constitution said to have the status of law, especially supreme law, must answer this question.  The insight that constitutions must be self-enforcing is at most a starting point, an invitation to theorize how this could happen.  Perhaps the most persuasive answer the framers came up with is that the people themselves would be the Constitution’s ultimate enforcers.  But however persuasive, this is not the best answer.  The most practical and effective answer they hit on was to rely on the institutions the Constitution created.  These institutions would operationalize the Constitution and make it truly effective as a supreme law, subject of course to the somewhat theoretical check of the people.

I have argued that this answer has strong implications for our understanding of how constitutional change occurs.  Depending on how the institutions enforced the Constitution over time, the meaning of the Constitution could change.  In addition, the institutions themselves could undergo structural alterations, thus possibly altering the original understanding of the balance of power among the branches, for example.  So you wouldn’t be able to reliably know, predict, or understand the meaning of the Constitution at a given point in American history unless you first specified (1) how the relevant constitutional institutions were structured and functioned and (2) the meaning they were giving to the Constitution.

From this perspective, which I call “developmental” (rather than, say, “nonoriginalist”), it follows that it would be a mistake to simply assume that the current meaning of a phrase in the Constitution or role of an institution it created (like the “electoral college”) is its 1789 meaning.  This would commit a fallacy I call “time-jumping.”  This fallacy was on instructive display in the dispute over whether electors should exercise a degree of “Hamiltonian” independence from state electorates.

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The Extraterritorial Constitution and Government Accountability

Jonathan Hafetz

Next month, the Supreme Court will hear arguments in an important case regarding the Constitution’s extraterritorial application. The case, Hernandez v. Mesa, centers on the shooting of an unarmed Mexican teenager by a U.S. Border Patrol agent. The agent was on the U.S. side of the border when he shot the teenager, who was on the Mexican side. The teenager’s family brought a damages suit against the agent under Bivens v. Six Unknown Fed. Narcotics Agents.

Hernandez could turn, in part, on how the Supreme Court interprets its 2008 decision in Boumediene v. Bush (and, more particularly, how Justice Kennedy views his majority opinion in that case). In Boumediene, the Court held that the Constitution’s Suspension Clause, protecting the right to habeas corpus, applied to foreign nationals held at the U.S. detention center at Guantanamo Bay, Cuba, even though the center is located outside U.S. sovereign territory and therefore extraterritorial. The Court rejected the government’s vigorous assertion of categorical limitations on the Constitution’s application beyond U.S. borders based on sovereignty and citizenship and adopted a functional test that elevates the pragmatic aspects of a case over legal formalisms.

  Hernandez confronts the Court with Boumediene’s application to a cross-border shooting as well as its impact on the Court’s prior decision in United States v. Verdugo-Urquidez. There, the Court held that the Fourth Amendment’s Warrant Clause did not apply to the search by U.S. law enforcement agents of a foreign national’s home in Mexico. Although the opinion in Verdugo-Urquidez described a sharp territorial limit on the Fourth Amendment’s extraterritorial application to noncitizens without substantial connections to the United States, Justice Kennedy, who provided the deciding vote, advanced a more flexible, open-ended approach in his concurring opinion, which he later elaborated on in Boumediene. In Hernandez, the Fifth Circuit nonetheless rejected the plaintiffs' deadly force claim on the ground that Fourth Amendment did not apply to a foreign national in Mexico, at least absent any significant voluntary connection to the United States, suggesting a refusal to recognize Boumediene's embrace of a functional approach. It also rejected plaintiff’s Fifth Amendment Due Process Clause claim based on qualified immunity, finding that even if this constitutional provision applied, it was not clearly established at the time.

Hernandez, like Boumediene, underscores the Constitution’s importance in preventing de facto law-free zones and providing a framework for government accountability. The United States’ refusal to recognize the application of the Fourth and Fifth Amendments to noncitizens beyond its borders effectively creates a space where its agents can exercise tremendous power without legal constraints. While international human rights law could help provide such constraints, the United States maintains that the International Covenant on Civil and Political Rights, which prohibits the arbitrary deprivation of life, does not extend extraterritorially. Mexican law, to the extent applicable, does nothing to restrain U.S. Border Patrol agents who remain within the United States. And while the United States might seek to bring criminal charges against individual Border Patrol agents, prosecutorial decisions remain discretionary, and charges have been brought only in one case to date, despite a string of cross-border shootings by U.S. Border Patrol agents. (In Hernandez, the United States considered and declined to bring a prosecution against the agent). In addition to depending on good faith by the executive branch, criminal prosecutions -- with their demanding standard proof and other hurdles -- remain an insufficient mechanism for ensuring accountability since they exclude a wide swath of non-prosecutable, but nonetheless egregious, misconduct by federal agents.

One argument against recognizing constitutional protections under the Fourth Amendment is that it will expose U.S. officials to liability for a host of law enforcement, military, and intelligence activities abroad. (See, for example, Andrew Kent’s posts here and here, describing these downsides, as well as Steve Vladeck’s response here). Similar arguments were made against extending habeas rights to Guantanamo detainees. Doing so, Justice Scalia, warned in Rasul v. Bush, would extend habeas corpus “to the four corners of the earth.” But, in fact, judges subsequently rejected the extension of habeas rights to detainees in Afghanistan, noting the different circumstances presented by a theater of war. An important feature of a functional test is that it leaves courts room to reach a different conclusion in other circumstances. This latitude can, to be sure, result in uncertainty and gaps in legal protections that may seem unwarranted and concerning to advocates. (A detention by U.S. agents may be no less arbitrary merely because it occurs in a theater of war than at Guantanamo). But it also helps mitigate concerns that recognizing constitutional rights in a specific set of circumstances will necessarily have widespread ramifications. Put another way, recognizing a Fourth Amendment right against the use of deadly force in a cross-border shooting will not necessitate recognition of a Fourth Amendment right against electronic surveillance throughout the world. To suggest otherwise, ignores how judicial opinions are typically written and applied.

Even if the Court finds in Hernandez that the Fourth (and/or Fifth) Amendment applies to a cross-border shooting, and that the right was clearly established at the time, it will need to determine that a Bivens remedy is available. Since first recognizing a damages remedy for constitutional violations in Bivens in 1971, the Court has declined to expand its reach widely all types of government activity. But misconduct by federal law enforcement agents remains core Bivens territory, and the Court has continued to emphasize the absence of other remedies and the value of deterrence as important considerations. (Note, for example, its 2012 decision in Minneci v. Pollard, which emphasized the availability of state tort remedies—remedies that do not exist in Hernandez). In opposing Bivens, the United States has cited the “sensitive context of an international cross-border shooting incident” as a "special factor counseling hesitation." But such reliance on the extraterritorial nature of the shooting -- the special factors argument would presumably not extend to the shooting of a foreign national who had crossed the border and entered the United States -- represents a form of double-counting. Once the Court has determined the constitutional right extends extraterritorially, the remedy should as well, absent other special factors, such as an alternative congressional scheme (which does not exist here)

Hernandez, in short, provides the Court with an opportunity to reassert the important link between the Constitution and government accountability. This opportunity lies first in applying Boumediene’s functional test to extend constitutional protections to the border and second in clarifying Bivens' continuing role in ensuring that federal agents are held legally responsible for gross misconduct

[Disclosure: While I am not involved in the Hernandez litigation, I represent a U.S. citizen, with a pending certiorari petition, seeking a Bivens remedy for unconstitutional detention and mistreatment by the FBI abroad]

Wednesday, January 04, 2017

AALS: Trade Association or Learned Society?

Mark Tushnet

Paul Horwitz is blogging about the AALS with some reform proposals. His first post, here, refers to "the tendency of the AALS to defend law schools, which I think moves it too close to a trade association ... and too far away from what ought to be its role: that of a learned society." One thing about the AALS, in contrast to, say, the American Economic Association, the American Political Science Association, or the Organization of American Historians is signaled by the difference between the AALS's name and that of the OAH. The AALS is an association of law schools, whereas the other organizations are associations of economists, political scientists, and historians. There is in fact no "learned society" for legal academics. (When I looked into this more than a decade ago, I found -- as I recall -- that the only other profession that had only an association of schools and not an association of professors was dentistry.)

The AALS's structure means that it almost necessarily must be something like a trade association for law schools -- perhaps with something like a learned society attached to it once a year (other learned societies publish journals dealing with their subject matters; the AALS publishes a journal dealing with legal education). Another indication that the AALS is different from those learned societies is the large number of what it officially calls "administrative sections" -- fifteen by my count -- in addition to the approximately 90 "academic sections." That's more than would be justified, for example, by having programming relevant to the service obligations of legal academics. (And some of the administrative sections are clearly dominated -- and properly so -- by senior administrators rather than faculty members.)

Given all this, it's actually something of an achievement that the AALS's annual program has become as intellectually substantial as it is now. I just came from a quite thought-provoking session on whether secularism is a "non-negotiable" aspect of liberal constitutionalism, and Elizabeth attended what she described as interesting sessions on the Constitution and family law, and an author-meets-readers session on Risa Goluboff's "Vagrant Nation." And it's worth noting that programming at learned societies is often catch-as-catch can, with juniors and graduate students presenting often rudimentary works barely in progress (to justify their drawing on institutional funds to support their attendance).

For those who don't know, I was the president of the AALS more than a decade ago, but I haven't been involved much in theAssociation's activities for the past several years (this year's meeting was the first in four years, I think, that I've attended).

Tuesday, January 03, 2017

Sovereignty is the Wrong Path for Federalism: A response to Ilya Somin

Heather K. Gerken


Yesterday I responded to Rick Hills, who has been writing about progressives’ new-found love of federalism.  Today I want to respond to Ilya Somin’s spirited critique of my views on federalism.  Ilya argues that if you believe, as I do, that state and local power serves an important role in a well-functioning democracy, you should favor a sovereignty model of federalism, one that involves judicially enforced constraints on federal power.  Ilya’s point is a serious one and highly intuitive.  If you think state power plays a useful role in our democracy, why shouldn’t judges protect that power?  On this view, just as the First Amendment protects dissenting speech, so too should the Constitution protect what I’ve called “dissenting by deciding” by shielding outlier state policies from national reversal. 

Despite the appeal of Ilya’s argument, I disagree with him for three reasons.  The first is a pragmatic one, familiar to anyone who has taken constitutional law.  Despite the best efforts of the Rehnquist and Roberts Courts, judicial efforts to hold back the tide of federal power have been a failure.  As I’ve written elsewhere, the federal government has a readymade work-around for every pro-federalism ruling that the Court has imposed.  The nationalists have lost battles, to be sure Shelby County v. Holder being the most heartbreaking defeat but they are undoubtedly winning the war.  The Court could, of course, try to do more to limit federal power, but the costs associated with those strategies have proved to be too high even for this conservative set of Justices.  The game is just not worth the candle.

            Second, Ilya and I have a fundamentally different view of what a well-functioning democracy should look like.  Nationalists like myself have always worried about a sovereignty model because it facilitates a retreat from national norms; that’s why slavery and Jim Crow loom so large in federalism debates.  It’s worth remembering that those who favor federalism today generally agree upon a baseline of rights.  But a nationalist should still worry about a model of state power that depends on sovereignty and separation, one that imagines us settling into our all-too-comfortable red and blue enclaves rather than interacting with one another.  My own model of democracy is more nationally oriented and decidedly more agonistic.  I value states because they tee up the conflicts and debates that forge national norms rather than allow us to shield ourselves from the federal policies with which we disagree.  For these and other reasons, I envision states as part of an integrated national system and believe that if the national government wants to play the national supremacy trump card, it can.

            This brings me to the third key difference between Ilya’s account and my own:  I think that sovereignty is unnecessary for states to play this important role in our democracy.  That’s because, as Jason Weinstein-Tull has quipped, the Supremacy Clause trump card turns out to be a jack.  Ilya assumes that for states to be powerful, they must preside over their own empires, wielding power separate and apart from the national government.  But states need not wield the power of the sovereign to serve as sources of resistance and change.  Instead, they can wield what I’ve called the “power of the servant.”  The federal government lacks the resources and manpower to implement its own policies.  As a result, it depends heavily on states and localities to administer federal law.  That dependence, in turn, empowers the states to resist federal policy and engage in what Jessica Bulman-Pozen and I have called “uncooperative federalism.”   By serving as agents of the national government, implementing federal policy from within rather than challenging it from without, states can influence national policy in a number of important ways.

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