Balkinization   |
Balkinization
Jack Balkin: jackbalkin at yahoo.com Bruce Ackerman bruce.ackerman at yale.edu Ian Ayres ian.ayres at yale.edu Corey Brettschneider corey_brettschneider at brown.edu Mary Dudziak mary.l.dudziak at emory.edu Joey Fishkin joey.fishkin at gmail.com Heather Gerken heather.gerken at yale.edu Abbe Gluck abbe.gluck at yale.edu Mark Graber mgraber at law.umaryland.edu Stephen Griffin sgriffin at tulane.edu Jonathan Hafetz jonathan.hafetz at shu.edu Jeremy Kessler jkessler at law.columbia.edu Andrew Koppelman akoppelman at law.northwestern.edu Marty Lederman msl46 at law.georgetown.edu Sanford Levinson slevinson at law.utexas.edu David Luban david.luban at gmail.com Gerard Magliocca gmaglioc at iupui.edu Jason Mazzone mazzonej at illinois.edu Linda McClain lmcclain at bu.edu John Mikhail mikhail at law.georgetown.edu Frank Pasquale pasquale.frank at gmail.com Nate Persily npersily at gmail.com Michael Stokes Paulsen michaelstokespaulsen at gmail.com Deborah Pearlstein dpearlst at yu.edu Rick Pildes rick.pildes at nyu.edu David Pozen dpozen at law.columbia.edu Richard Primus raprimus at umich.edu K. Sabeel Rahmansabeel.rahman at brooklaw.edu Alice Ristroph alice.ristroph at shu.edu Neil Siegel siegel at law.duke.edu David Super david.super at law.georgetown.edu Brian Tamanaha btamanaha at wulaw.wustl.edu Nelson Tebbe nelson.tebbe at brooklaw.edu Mark Tushnet mtushnet at law.harvard.edu Adam Winkler winkler at ucla.edu Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts The Professional Utopians Process Values and Mass Reductions in Medicaid and SNAP The Indictment of Donald Trump Balkinization Symposium on Joanna Schwartz, Shielded: How the Police Became Untouchable -- Collected Posts The Use and Abuse of Tradition: A comment on DeGirolami’s Traditionalism Rising Hamline, Stanford, etc. Not everything that is faced can be changed, but nothing can be changed until it is faced Thirteenth Amendment Abortion Rights and the Job of a Judge Re-Arming the Private Attorney General The Untouchables and the Stakes of Abolition Madison's Non Sequitur Religion and the lawbreaking Supreme Court Policing, Stories, Problems, and Solutions The Absence of Police Unions and Over-Deterrence in Joanna Schwartz’s Shielded On Joanna Schwartz’s Shielded: How the Police Became Untouchable Forever War Chronicles, pt. 1[i]: How, exactly, did Truman decide not to seek a war declaration for the Korean War? A Comment on Shielded: How the Police Become Untouchable
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Monday, March 27, 2023
The Professional Utopians
Andrew Koppelman
I review the book in the current Los Angeles Review of Books. Sunday, March 19, 2023
Process Values and Mass Reductions in Medicaid and SNAP
David Super
The economy stubbornly
marches forward past the challenges of persistent inflation, a rate-raising
Federal Reserve, and blundering bankers.
Yet this is a difficult time for tens of millions of low-income people
in this country. Emergency
liberalizations enacted in Medicaid and the Supplemental Nutrition Assistance
Program (SNAP) are ending, with benefit reductions and terminations for huge
numbers of people very much still in need.
This event is important in its own right. It also raises questions about the process of
policy-making in our deeply polarized and unequal nation. State fiscal
crises historically lead to cuts in Medicaid eligibility and services: Medicaid plays such a large role in states’
budgets it presents an extremely inviting target. With public health costs rising and revenues
crashing in the early days of the pandemic, Congress could foresee sweeping state
Medicaid cuts coming at a time when low-income beneficiaries could least afford
them. Accordingly, it both increased the
federal matching rate for Medicaid expenditures and, to forestall covert
Medicaid cuts, made it very difficult for states to terminate people from the program. These measures were tied to the duration of
the public health emergency declared for COVID-19. Because many
Medicaid beneficiaries’ incomes are quite volatile, a substantial number of
people are now receiving Medicaid with incomes above their states’ eligibility
limits. Medicaid advocates and federal
and state administrators long have been preparing for the eventual “unwinding”
of these emergency measures, with states needing to redetermine tens of
millions of people’s eligibility within a short period using staffs that in
many instances have shrunk since 2020.
Many Medicaid beneficiaries remain eligible, sometimes under a different
eligibility criteria from the one under which they were first approved. Most of the rest qualify for private
insurance with large subsidies under the Affordable Care Act, but that requires
a separate application. In states that
implemented the ACA’s Medicaid expansion, very few Medicaid beneficiaries should
lose health care coverage completely, but sorting out which beneficiaries qualify
for coverage under which program is complicated enough that many are at risk of
falling through the cracks. Congress’s
response to rapidly rising food costs and cratering employment during the early
months of the pandemic was to provide for “supplemental allotments” in SNAP and
to allow households with children to receive substitute food assistance where school
meal and summer food programs were shuttered.
The Trump Administration bizarrely interpreted the supplemental
allotment statute to reject the across-the-board increase Congress had
specified and instead raise every household’s benefits to the maximum. This gave the least-poor recipients a huge
increase and but nothing at all to the poorest one-third of households that
were already getting the maximum. The
Biden Administration later partially reversed this policy to give more help to
the poorest households. Congress and USDA
under both administrations also allowed states to forego eligibility reviews,
leaving many households to continue to receive SNAP benefits based on having
established eligibility many months earlier.
With COVID-19
still killing
hundreds of people per day and millions of the chronically ill – a group
over-represented among low-income people – still at considerable risk working
outside the home, the Biden Administration has repeatedly extended the public
health emergency, which had the effect of continuing the emergency Medicaid,
SNAP, and child nutrition measures. This
has brought increasing criticism from Republicans, and some
Republican-controlled states ended some of these measures on their own. The end-of-session
omnibus legislation enacted just before Republicans took control of the House
included provisions setting firm dates for ending enhanced Medicaid funding,
the restrictions on Medicaid terminations, and SNAP supplemental
allotments. The last supplemental
allotments in SNAP were issued in February, meaning that this month almost
every SNAP household in the country received a large benefit cut. The money saved by ending the supplemental
allotments early was spent creating a permanent new program to provide food aid
directly to the families of low-income children that lack access to a Summer
Food Program site when school is closed.
This is important because only a tiny
share of communities offer meals to continue the work of the school lunch and
breakfast programs. Still, a steep drop
in SNAP benefits for already hard-pressed households will unquestionably cause
real hardship, particularly with the next inflation adjustment more than half a
year away. The year-end
omnibus also prescribed a phase-out of the enhanced Medicaid funding and
eligibility protections over the next several months. Savings from these changes funded increases
in the capped funding Puerto Rico and other U.S. territories receive for
Medicaid. With the caps set far below
what these jurisdictions would have received if they were states, health care
coverage there has been chronically narrower, less secure, and subject to
harsher eligibility limits than that in even the most miserly states. To date, states’ experience with unwinding
modified eligibility procedures in SNAP has been quite varied. Some states have seen precipitous drops in
participation that suggest many eligible households have been purged from the
rolls. Other states have proceeded more
carefully and seen much smaller drop-offs.
Advocates’ assessments of states’ plans for Medicaid unwinding are
similarly varied, with some states apparently ready and willing to minimize the
number of people falling between the cracks and others seemingly relishing the
prospect of big Medicaid savings. Because states are
not responsible for SNAP benefit costs, excessive losses of coverage likely result
either from ideological preferences or decrepit state administrations. The latter may reflect ideology as well, with
states that devalue assisting low-income people allowing their administrative
capacity to erode. It was no coincidence that a decrepit
computer in Florida failed to get unemployment compensation to many of those the
pandemic rendered jobless. The rise and fall
of pandemic-related improvements to public benefit programs raises several
important issues about our political process.
One issue concerns
the ethics of allowing expressly temporary programs to end. Some Democratic leaders and national
anti-poverty non-profits felt strongly that their credibility, and their ability
to secure responses to future crises, depended on their cooperating in the
wind-up of benefits they had sought as temporary measures. At one time, when Congress had many
conservative but principled Republicans such as Bob Dole, Richard Lugar, and
Bill Emerson, this clearly would have been true: those leaders would cooperate on meeting
genuine needs but fiercely refuse to deal with anyone they regarded as acting
in bad faith. Times, however,
have changed. Opponents of enacting
these measures in the first place asserted – falsely – that temporary measures
enacted in response to the Great Recession never ended. No doubt anti-poverty advocates’ acceptance
of the enhanced benefits’ end this time will not prevent the same dishonest claims
from being made next time. It also is
true that Republicans fiercely resist the termination of upper-income tax cuts,
such as those in 2001 and 2003, justified as responses to economic crises. A plausible argument could be made that, in
the zero-sum game of fiscal policy, liberals should play by the same rules
their opponents do rather than engage in unilateral disarmament. Yet as Fishkin and
Pozen have pointed
out, the two partisan coalitions are not symmetrical. Many of the champions of “good government” that
once moderated the Republican Party or acted as swing votes are now within the
Democratic constituency. They have not,
however, lost their commitment to “good government” values, including fidelity
to one’s word. They also adhere to norms
of policy debate that limit joinder,
making the general inadequacy of anti-poverty programs in this country an impermissible
argument for continuing explicitly temporary programs. With the electorate as evenly divided as it
is, liberals cannot afford to fracture their coalition by alienating their “good
government” champions. The politics
likely would not have allowed continuing the expansions much longer; trading
their last few months for smaller but important improvements in Summer Food and
health care in the territories was likely all the politics would bear. A second question about
the end of these enhancements is one of representation. For the reasons just stated, I agree with the
decision to include these measures in the year-end omnibus. So do the people I work with most closely in
Washington. But who are we? None of us are at risk of losing our health
coverage, our homes, or our access to food.
If the provisions
at issue affected billionaires, big oil, or banks, decisions on legislative
strategy would be made not by non-profits friendly to their interests but by
the affected entities themselves. They likely
would not care about how taking “unreasonable” positions might undermine their
lobbyists’ credibility; if necessary, they could later change lobbyists. One could argue that our current political
system makes some effort to ensure that a variety of positions are considered
but does far less to ensure that a variety of voices get heard. And, certainly, Medicaid and SNAP recipients
lack the funds or the coordinating
infrastructure to punish legislators who disappoint them the way trade associations
do. This problem
cannot be addressed meaningfully with one-off consultations. The affluent’s effectiveness in policy
formulation comes in large part from their having access to nuanced longitudinal
insight about what the politics will and will not bear. When welfare rights and similar groups that
have not previously been a part of policy debates are brought in just as key
decisions are about to be made, they face an immediate, impossible guess: whether to trust liberal advocacy groups’
political judgment or to accuse those groups of selling out low-income people’s
interests. Myriad bad outcomes have
resulted from each of those choices. I am convinced that
we got it right this time, that the omnibus legislation was by far the best
deal on the table and that advocacy groups’ refraining from trying to squeeze
every last month out of the Medicaid and SNAP improvements will give low-income
people a meaningfully better chance of getting help in the next
systemic emergency. But something is
very wrong with a system where this decision was so significantly the choice of
people like me. @DavidASuper1 Saturday, March 18, 2023
The Indictment of Donald Trump
Gerard N. Magliocca
Everyone is assuming that Donald Trump will be indicted in New York next week. I am on record saying that prosecuting Trump is a terrible mistake. Nevertheless, there are two implications of that decision that I want to highlight. First, a New York indictment makes a Georgia indictment more likely, even though the two cases are very different. Being the first prosecutor to indict an ex-President is daunting. Being the second one to do so . . . not so much. Second, a New York indictment makes the legal effort to disqualify Trump from the presidential ballot more credible. Strictly speaking, of course, the New York indictment is irrelevant to the issue of whether Trump violated Section Three of the Fourteenth Amendment on January 6th, 2021. But election officials and at least some judges will probably think about that question differently if Trump is under indictment. And especially so if he ends up under two indictments. Balkinization Symposium on Joanna Schwartz, Shielded: How the Police Became Untouchable -- Collected Posts
JB
1. Jack Balkin, Introduction to the Symposium. 2. Fred O. Smith, Jr., Shielded: Right Place at the Right Time. 3. Aziz Z. Huq, A Comment on Shielded: How the Police Become Untouchable. 4. Richard H. Fallon, Jr., On Joanna Schwartz’s Shielded: How the Police Became Untouchable. 5. Peter H. Schuck, The Absence of Police Unions and Over-Deterrence in Joanna Schwartz’s Shielded. 6. Katherine Mims Crocker, Policing, Stories, Problems, and Solutions. 7. Brandon Hasbrouck, The Untouchables and the Stakes of Abolition. 8. Nancy Leong, Re-Arming the Private Attorney General. 9. Joanna Schwartz, Not everything that is faced can be changed, but nothing can be changed until it is faced. Tuesday, March 14, 2023
The Use and Abuse of Tradition: A comment on DeGirolami’s Traditionalism Rising
Andrew Koppelman
Marc DeGirolami’s essay, Traditionalism Rising, argues that the Supreme Court is now deploying what he calls “traditionalist methodology” to decide cases, and that when it cites tradition it is following a “larger, longstanding interpretive method” for deciding cases. Saturday, March 11, 2023
Hamline, Stanford, etc.
Jason Mazzone
Like most observers, I found outrageous Hamline University’s decision earlier this year to terminate Erika López Prater’s contract after students in her art history class complained she showed in class a 14th-century painting depicting the prophet Mohammad. At the same time, I had only limited sympathy for López Prater because I thought she was part of the underlying problem. In warning her students in the course syllabus they might encounter works depicting religious figures (and to reach out to her if they had concerns about that) and, on the date in question, in giving her students an opportunity to step away while the Mohammed image was screened, López Prater evidently subscribed to—and, through her own actions, reinforced—the notion that, in delivering education, universities should take steps to ensure students are not offended. That notion is inconsistent with responsible pedagogy and the truth-seeking function of universities (in part because (as López Prater herself discovered) it eschews any sense of proportion and it has no end point). Hamline is a small and unremarkable undergraduate college. Stanford Law School is a quite different institution. But if the video recording of a Stanford associate dean’s loopy conduct at a recent student-sponsored event is representative, Stanford has a Hamline problem of its own. Read more »
Friday, March 10, 2023
Not everything that is faced can be changed, but nothing can be changed until it is faced
Guest Blogger
Wednesday, March 08, 2023
Thirteenth Amendment Abortion Rights and the Job of a Judge
Andrew Koppelman
Re-Arming the Private Attorney General
Guest Blogger
For the Balkinization symposium on Joanna Schwartz, Shielded: How the Police Became Untouchable (Viking, 2023). Nancy Leong Joanna
Schwartz's new book Shielded: How the Police Became Untouchable is a
triumphant capstone to an edifice built of many years of painstaking work.
Schwartz's body of research is remarkable: few scholars have had so much
influence on the field of civil rights litigation under 42 U.S.C. § 1983. Her
empirical research examining basic assumptions of constitutional litigation—does
the qualified immunity defense actually shield government officers from the
burdens of litigation? do government officers learn from the articulation of
law?—has tested and in some cases conclusively demonstrated that foundational
assumptions of constitutional litigation are wrong. Shielded draws
together many of the strands of this remarkable body of work and is a gift to
scholars, litigators, and the interested public alike. In
my contribution to this symposium, I would like to linger on Chapter 2 (pp. 17-32),
which discusses civil rights lawyers. I will focus on issues related to
availability of counsel, or, more accurately, lack thereof—what in other work Schwartz has properly called
“the biggest threat to civil rights enforcement.” Tuesday, March 07, 2023
The Untouchables and the Stakes of Abolition
Guest Blogger
For the Balkinization symposium on Joanna Schwartz, Shielded: How the Police Became Untouchable (Viking, 2023). Brandon Hasbrouck
Recently, a few criminal convictions of current and
former police officers for the extrajudicial killings of Black men have briefly
dominated the national news cycle. Derek
Chauvin's 22.5-year sentence for murdering George Floyd is currently
on appeal after capturing headlines, though the concurrent federal
sentence he received would render any change in the outcome of that
appeal practically moot. The other
three officers who participated in Floyd's murder are also
serving shorter concurrent state and federal sentences. Ahmaud
Arbery's killers—including a retired cop—received life
sentences. These convictions are
laudable because they demonstrate prosecutors and jurors willing to hold
killers criminally accountable, regardless of their role in law
enforcement. Yet they are not cause for
unalloyed celebration; carceral solutions to the violence that mass
incarceration engenders will do little to redress or prevent that violence. And they are so notable in part because they
are glaring exceptions to the trend that police in America are nearly
unaccountable for the abuses they heap upon ordinary people. This trend follows naturally from the cycles
of white reaction to advances in Black civil rights in a characteristically
American pattern. In Shielded: How the Police Became Untouchable,
Joanna Schwartz provides an exactingly researched exploration of the myriad
legal and political forces protecting police from accountability for violating
the rights of ordinary people. This book
is the culmination of over a decade of Schwartz's legal scholarship, distilled
into easily accessible prose for a mass audience outside of the academy. Schwartz examines the legal system's
ostensible primary vehicle for holding police accountable—civil rights
lawsuits—and the barriers to those lawsuits. Madison's Non Sequitur
Andrew Koppelman
Vincent Phillip Muñoz’s book, Religious Liberty and the American Founding, is a marvelous piece of historical reconstruction, bringing to vivid life the intellectual world of the framers. He gives the reader a sharply etched picture of their natural rights philosophy. Monday, March 06, 2023
Religion and the lawbreaking Supreme Court
Andrew Koppelman
Lawyers sometimes irritate other people with their
persnickitiness about technicalities. But
scrupulousness about legal detail is what gives courts their authority. It is big news if the Supreme Court ignores statutory
limits on its own power. Since Justice Amy Coney Barrett replaced Ruth Bader
Ginsburg, the Court has repeatedly issued orders without legal authorization. This was particularly true in the cases
involving religion and Covid. I elaborate in a column at The Hill, here. Policing, Stories, Problems, and Solutions
Guest Blogger
For the Balkinization symposium on Joanna Schwartz, Shielded: How the Police Became Untouchable (Viking, 2023). Katherine Mims Crocker
George Floyd, Breonna Taylor, Eric Garner, and now, Tyre
Nichols. We all know their names because
of the tragic circumstances surrounding their deaths at the hands—or by the gun
or under the knee—of law-enforcement officers.
There are others, too, whose names and killings have become part of our
collective consciousness amid the national contestation over police reform. I continue to
believe, to quote the New
York Times editorial board, that “[t]he vast majority of police
officers are decent, honest men and women who do some of society’s most
dangerous work.” But as Joanna
Schwartz’s incisive new monograph, Shielded, expounds in excruciating
detail, the list of people who’ve suffered outrageous behavior at the hands of
law-enforcement officers—and who then ran into roadblock after roadblock pursuing
remedies—is considerably longer and, critically, broader than many readers may
suspect. If the list is limited to
people who died, one could add Tony
Timpa, Andrew
Scott, and Sean
Monterrosa. If it’s not, one could add
Onree
Norris, James
Campbell, and Rob
Liese too. All their names are worth
knowing. All their stories, worth
telling. And unfortunately, there are
many more stories like theirs. As Schwartz promises in the Introduction, readers “will
learn the stories of people whose children were killed even though they posed
no threat, people who themselves were shot and nearly lost their lives without
justification, who were searched and humiliated without cause, who were raped
by officers sworn to protect and serve—each of whom has been told by our courts
and elected officials that they must shoulder the costs of the violence they suffered
themselves, with no recourse from the officers or from the governments that
signed their paychecks and gave them their badges and guns.” To be sure, Schwartz explains, readers “will
also learn the stories of people who managed to eke a measure of justice out of
the system.” While “some succeed,” she
tells us, “the shields erected to protect police by courts and officials at
every level of government make those victories fewer and further between, and
harder to achieve, than they should be.” Sunday, March 05, 2023
The Absence of Police Unions and Over-Deterrence in Joanna Schwartz’s Shielded
Guest Blogger
For the Balkinization symposium on Joanna Schwartz, Shielded: How the Police Became Untouchable (Viking, 2023). Peter H. Schuck
I
am delighted to have been asked to participate in an online symposium celebrating
Joanna Schwartz’s new book, Shielded: How the Police Became Untouchable. The subject is one that should command the
attention of every individual in our society, whether citizen or non-citizen,
admiring of police or suspicious of them, more or less likely to come in
contact with police. Schwartz’s
subtitle depicts the police as “untouchable.” This is a bit hyperbolic, as even
some of her case studies show.
Nevertheless, her analysis leaves no doubt that legal remedies against
miscreant cops are woefully inadequate in many important respects and cases. Most concerning, many and perhaps most
deserving victims of police misconduct find that their legal remedies –
particularly the 150-year old civil rights provision, 42 U.S.C. Section 1983 –
are unavailing. Many reasons for this
remedial failure exist, and Schwartz analyzes nearly all of them methodically,
chapter-by-chapter. (I say “nearly all” for
a particular reason: despite Schwartz’s admirably detailed analysis of each of the
impediments to Section 1983 recoveries, she has almost nothing critical to say
about the substantial, insidious role of police unions in blocking citizen remedies. More on this below). Friday, March 03, 2023
On Joanna Schwartz’s Shielded: How the Police Became Untouchable
Guest Blogger
For the Balkinization symposium on Joanna Schwartz, Shielded: How the Police Became Untouchable (Viking, 2023). Richard H. Fallon, Jr.
Over
the past ten years, no one has produced more important work concerning
constitutional tort litigation than Joanna Schwartz. Schwartz’s greatest contributions have come from
her empirical research into constitutional tort suits involving the
police. A main focus of her work has
involved qualified immunity. Qualified
immunity doctrine, which is entirely judge-made, has rested on the premise that
tort judgments against government officials would be paid by the officials
themselves. If so, we might need to
worry that public servants might be chilled from conscientious discharge of
their duties by fears of incurring personal liability for transgressing
uncertain constitutional lines. Through imaginative
and painstaking investigation, Schwartz has shown that police forces, at least,
overwhelmingly indemnify their officers and that officers pay substantially
less than 1% of the tort judgments and settlements arising from alleged police
misconduct. This is a startling
discovery. Digging
behind and beyond the façade of personal official liability in police
misconduct cases, Schwartz has also looked at how constitutional tort
litigation affects police departments.
In doing so, she has echoed the findings of others that doctrine crafted
by the Supreme Court in interpreting 42 U.S.C. section 1983 makes it nearly
impossible to hold police departments directly liable for their officers’
torts. A number of academic commentators
have criticized the Court’s relevant rulings, in part based on speculation that
municipal liability would create powerful incentives for police departments to
hire, train, and supervise their officers in ways that would diminish
constitutional violations. But
Schwartz’s extraordinary research has again demanded a rethinking of
plausible-seeming premises. Even now,
departments can occasionally – even if infrequently – be sued successfully, and,
as noted above, they mostly indemnify their officers when the officers are held
“individually” liable. According to
Schwartz’s research, however, many departments do little to keep track of which
officers are sued repeatedly and which are not.
Moreover, it is at best doubtful, as an empirical matter, that even
successful constitutional tort actions cause police departments to learn the
lessons that commentators have broadly assumed that financial liability would
teach. Among other reasons, Schwartz has
established, tort judgments based on police misconduct are mostly absorbed by
municipalities or insurance companies in ways that shield police departments
from any resulting financial pinch. It
is one small measure of the significance of Schwartz’s work on qualified
immunity and police liability for constitutional torts that the 2022 Supplement
to Hart & Wechsler’s The Federal Courts and the Federal System (7th
ed. 2015) not only cites, but also discusses, no fewer than seven of her
articles in its sections dealing with qualified immunity and constitutional
tort litigation under 42 U.S.C. section 1983. Building
on the work that she had done previously, Schwartz has now published Shielded: How the Police Became Untouchable (2023). That book, which is wonderfully written to
reach a broad public as well as a scholarly audience, constitutes an important,
timely contribution to debates about policing practices, police misconduct,
systemic bias, justice for victims of police misconduct, and the proper role of
the courts in effecting needed reforms. As
recent events have reminded us once more, these are matters of grave importance
to which thoughtful attention is urgently needed. Schwartz’s book answers to the need. In
its overall thrust, Shielded
constitutes a blistering condemnation of the criminal justice system as viewed
from the perspective afforded by a systematic, nearly comprehensive study of
constitutional tort litigation against the police. It calls the Supreme Court on the carpet for
myriad mistakes involving its shaping of a multitude of doctrines beyond
qualified immunity. Among the doctrines
with which Schwartz finds fault are those that define invasive police practices
as substantively reasonable under the Fourth Amendment; establish
often-insurmountable pre-discovery pleading requirements for constitutional
tort plaintiffs; and construe a statute authorizing attorneys’ fees for
successful section 1983 plaintiffs in ways that create disincentives for
lawyers to bring constitutional tort cases.
Shielded is also highly
critical of police and police departments, and the cultures that frequently
prevail within them, and depicts them as desperately needful of reform. In addition, Schwartz directs criticisms at
many lower court judges, whom she views as hostile to civil rights plaintiffs,
and even at juries. Juries, she writes,
are often selected from pools in which minority groups are underrepresented and
tend to hold disproportionally favorable views of the police. Nearly
all of Schwartz’s arguments in Shielded
impress me as forceful, though I would be the first to acknowledge that I know
too little to express a confident, much less an expert, judgment on some of the
issues that the book addresses.
Reflecting on the book from the perspective of a Constitutional Law and
Federal Courts teacher who has long thought and sometimes written about
constitutional torts doctrine, I draw three lessons for which I count myself
much indebted to Schwartz’s pathbreaking scholarship, of which Shielded marks a splendid culmination. Thursday, March 02, 2023
Forever War Chronicles, pt. 1[i]: How, exactly, did Truman decide not to seek a war declaration for the Korean War?
Mary L. Dudziak
In my next book, which is on the culture and politics of
ongoing U.S. war and the dissipation of democratic restraint, the Korean War is
a major turning point. When I began working on the Korean War chapter, I
wondered how, exactly, President Harry Truman decided to bypass Congress,
making it the first big foreign war without a war declaration. What was he
thinking? Was it just a matter of the urgency of the moment, which tends to be
implied in many works? To answer that question, I dove into the archives,
looking for a paper trail. In this blog post, I will tell you what I found.
There is, of course, a division in the literature about
whether or not Truman erred, and whether or not he contributed to forever war. Mariah’s
Zeisberg’s elegant and important War
Powers argues that the President and Congress co-produced
constitutional authority for war. Notwithstanding the importance of her
contributions, I tend to agree with Stephen
Griffin that war formal war authorizations matter, and that clear
Congressional commitment to war before troops are under fire matters.
This may now seem like an anachronistic argument, but the historical question
remains: how did a fundamental constitutional function come to appear to be an
anacronysm? In the context of the Korean War, just how did that come about?
What were Truman’s reasons? Discussions of Truman Administration decision making at the
beginning of the war often turn to two important evening meetings at Blair
House, the president’s temporary residence, shortly after North Korea invaded
the South.[ii]
During the second meeting Truman agreed to his Secretary of State’s
recommendation for an “all-out
order” for use of the Navy and Air Force, and to “waive restrictions on
their operations in Korea and to offer the fullest possible support to the
South Korean forces.” He followed
up by issuing the order to General Douglas MacArthur, and U.S. bombing in Korea
commenced. At the Blair House meeting, participants discussed the U.N.
Security Council, which had not yet authorized the use of force, but the idea
of seeking a declaration of war was not discussed. During this time period, the administration briefed two
Senators, who both exclaimed: “of course you are
not thinking of putting U.S. troops in Korea.” Congress debated the
developing conflict, with some questioning whether it was civil war, and
whether concrete U.S. interests were at stake. The contemporary historiography
emphasizes the peninsular nature of the conflict stemming from the division of
the Korean peninsula after World War II. Truman and his close aids wrongly assumed
that the invasion was part of Stalin’s master plan, however, dismissing Korean
agency and initiative. The president did not address Congress or ask for
congressional action. The ideal timing for seeking war authorization would have
been not long after June 25, 1950, when news of the North Korean invasion
reached Washington and before U.S. troops were ordered to Korea five days later.
Why didn’t Truman ask for Congressional authorization at that time? It was not
the lack of opportunity to reflect. Truman was in Independence, MO, on June 25
when he first learned of the invasion. Flying back to Washington on June 26, he
thought about the conflict and its impact on his own historical legacy. If he
thought about the role of Congress, he did not record this in his recollections
of the day. President Truman’s reasoning is captured in the papers of
his close aid George Elsey. Elsey recalled: “[t]he real time for a resolution
would have been on June 27 . . . but apparently nobody
thought of it at that time” (emphasis added).[iii]
The principal reason that timing would be best was actually political. It was
in the immediate moment of excitement and danger when members of Congress
rallied behind the idea of defending South Korea. There was robust discussion about war authorization in early
July 1950, as the first U.S. ground troops, ill-equipped and unprepared, were
on their way to a disastrous initial encounter with North Korean troops. Truman
remained reluctant, suggesting that it was up to Congress to request a war
declaration – even though Woodrow Wilson and Franklin Delano Roosevelt had
dramatically taken the initiative in World Wars I and II. By that time, Elsey
noted, “it
was undoubtedly too late to get a resolution through by anything like a
unanimous vote” – something that did not happen for the two World Wars either. Truman reduced Congress to a political adversary, not a
co-equal branch and source of more enduring legal and political legitimacy.
Elsey put it this way: “The President and his staff, and his other advisers,
were too busy thinking of military action and United Nations action to try to
cover up their tracks with Congressional resolutions. The President’s
motivation was to stop the aggression, not to prepare for future political
skirmishes.” He viewed Congress as a political problem, not as a partner in
taking the country to war. The concern about unanimity and political skirmishing reinforces
the fact that Truman’s neglect of Congress was based on politics, not
constitutional or military factors. Perhaps most notable was the lack of
attention to Congress’s role. “[N]obody thought of it at that time” when the
decision to use force was on the table. In sum, Truman’s decision to bypass Congress was
consequential (which I expand on in a forthcoming
article), but it was not deeply considered. Like another crucial and
devastating military action on Truman’s watch – the nuclear bombing of Nagasaki
shortly after Hiroshima, as Martin
Sherman’s work shows -- events for the President took on their own
momentum, and the record does not reflect deep reflection on the consequences. Nevertheless,
the Korean War lives on as precedent as part of the historical practice of the
separation of powers. One of the problems of relying on history for
constitutional authority, unfortunately, is that a president’s failure to
respect Congress became baked in, justifying more of the same. For more and for citations to sources, see my forthcoming
Michigan Law Review article The Gloss
of War.
[i] I
will link together occasional book-in-progress-related posts as part of Forever
War Chronicles. [ii] I
am using the contemporary terms North Korea and South Korea to avoid confusion.
The proper country names at the time were Republic of Korea for the South and Democratic People’s Republic
of Korea for the North. [iii] Letter
from George M. Elsey, Administrative Assistant to the President, to Sen.
Alexander H. Smith (July 16, 1950), Subject: Congressional Resolution, Folder:
Korea – July 1950, Box 71, Subject File, Harry S. Truman Administration, George
M. Elsey Papers, Harry S. Truman Library (emphasis added). A Comment on Shielded: How the Police Become Untouchable
Guest Blogger
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