Tuesday, November 12, 2019

Accidents of History?

Guest Blogger

For the symposium on David S. Schwartz, The Spirit of the Constitution: John Marshall and the 200-Year Odyssey of McCulloch v. Maryland (Oxford University Press, 2019).

Mark R. Killenbeck

            Guilty as charged.

            The title of my book arguably says it all.  The notion that M’Culloch v. Maryland “secured a Nation” places it squarely in the body of work on which David Schwartz focuses his “revisionist” sensibilities: individuals and writings that characterize M’Culloch as “great.”  His primary complaint – and amply documented finding – is that a convincing cases can be made that the record simply does not bear out the assumption that the decision “shap[ed] constitutional debates and guid[ed] constitutional development.”  Rather it simply “rehashed arguments,” “did not develop a single new idea,” and, as such “did not make great constitutional law.”  Instead, its embrace by individuals like me (albeit, ones with far greater insight and prestige) and subsequent placement at the center of the constitutional canon made the decision great by implication, rather than by execution or design.

            Fair enough.  If, for example, the question is whether Congress has implied powers – the issue for which M’Culloch is invariably cited and recognized – it broke absolutely no new ground.  As David points out very early, the Court recognized and embraced implied powers fourteen years earlier, in United States v. Fisher (1805).  In a similar vein, the Great Chief Justice seemed uniquely indifferent to the notion that M’Culloch itself might actually matter.  As David notes and stresses, “several more federalism cases arose during Marshall’s tenure, yet Marshall would virtually ignore M’Culloch for the last sixteen years of his judicial career, never referring back to its discussion of implied powers.”  Indeed, his successors continued in that vein.  There is little or no mention of M’Culloch, much less explication and reliance on its text or holdings, until it is disinterred and deployed by the New Deal Court.  Nor did pundits or scholars much care, until gently prodded in 1901 by celebrations of Marshall’s appointment as Chief Justice.  Even then, much of the embrace was tentative and muted, reducing both Marshall and his work to the vagaries of “be[ing] in the right place at the right time to become ‘the expounder of the constitution.’” (quoting Justice Oliver Wendell Holmes, Jr.).

            David’s discussion of these matters is detailed, meticulous, and fair.  He leads us through the cases decided in the wake of M’Culloch, both prominent and obscure, within which the Court fleshed out its vision of a developing nation and emerging constitutional order.  In particular, he notes the curious absence of any mention of M’Culloch or the principles for which it supposedly stands in the explication of what has become the single most important provision in the Constitution, the Commerce Clause, either as a matter of positive federal power to act or the existence and implications of a “dormant” or “negative” commerce power that limits the authority of the states in realms traditionally regarded as matters of sovereign state prerogative.

            David fills in the gaps in traditional M’Culloch scholarship and provides what is likely to be the definitive and exhaustive account of the cases and developments necessary to tell what Paul Harvey famously characterized as “The Rest of the Story.”  He gives M’Culloch its due, even as he gently prods us to recognize its shortcomings.  As such, his book (and the articles that preceded and shaped it, and now follow in its wake) are part of a welcome rekindling of interest in a decision that, astonishingly, had drawn scant focused attention by the time I became interested in it in the late 1990s.  My book was the first one dedicated solely to that case, and as such, can fairly be characterized as the last gasp of the old M’Culloch order.  In its wake we have the welcome work of people like David, Sandy Levinson, Mark Graber, John Mikhail, Eric Lomazoff, and others too numerous to mention (and to whom I apologize for not doing so) giving those of us with much to learn the insights and raw material required to fill in and reshape our assumptions about the case and its importance.

            That said, a quibble or two, provoked both by points I have made in the past and by important implications of Holmes reducing much of Marshall’s role and significance to the “fortunate circumstance” of being where he was, when he was.

Read more »

Monday, November 11, 2019

Marshaling McCulloch

Richard Primus

For the symposium on David S. Schwartz, The Spirit of the Constitution: John Marshall and the 200-Year Odyssey of McCulloch v. Maryland (Oxford University Press, 2019).

David Schwartz’s terrific new book is subtitled John Marshall and the 200-Year Odyssey of McCulloch v. Maryland.  But the book is about much more than Marshall and McCulloch.  It’s about the long struggle over the scope of national power.  Marshall and McCulloch are characters in the story, but the story isn’t centrally about them.  Indeed, an important part of Schwartz’s narrative is that McCulloch has mattered relatively little in that struggle, except as a protean symbol.
Schwartz sees the Constitution, properly understood, as warranting a robust vision of national power.  The book’s studied ambivalence about the canonical status of McCulloch is partly a function of McCulloch’s capacity to retard as well as to advance national power, and thus to vindicate or repress the spirit of the Constitution, depending on who is using it.  In Schwartz’s view, McCulloch should be pressed into better service for its capacity to better vindicate the best view of national power.  But better yet would be for that view to be vindicated in a way that did not rely on the backward-looking, court-centered, Marshall-celebrating framework that is inextricably part of marching under the banner of McCulloch.

The appearance of the book is an important moment in the development of a new wave of literature arguing for expansive conceptions of national power and in particular for skepticism toward the orthodox account of Congress as a legislature limited by enumerated powers.  Schwartz’s fellow travelers in that literature include John Mikhail, Robert Reinstein, and, well, me.  This literature is not skeptical about federalism as such, and it doesn’t think that the national government should be able to act without limits.  But it doubts that the Constitution’s enumeration of congressional powers can or should do the limiting work that orthodox constitutional-law discourse assigns to it.  One of the targets of Schwartz’s book is accordingly the familiar idea that even without respect to affirmative limits like those articulated in the First Amendment, there are things that Congress lacks the authority to do, because its enumerated powers are collectively less than a grant of general jurisdiction.  In a delightful coinage, Schwartz calls this idea “the mustbesomething rule,” because it holds that there must be something that Congress cannot do, even before we start talking about affirmative prohibitions.  (I have previously called this idea the “internal limits canon,” a term with a decent rationale but none of the pizazz of Schwartz’s label, so I may be switching.)

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Symposium on David Schwartz, The Spirit of the Constitution

John Mikhail

This week and next at Balkinization we are hosting a symposium on David Schwartz’s new book, The Spirit of the Constitution: John Marshall and the 200-Year Odyssey of McCulloch v. Maryland (Oxford University Press, 2019).

We have assembled a terrific group of commentators, including Mark Graber (Maryland), Mark Killenbeck (Arkansas), Kurt Lash (Richmond), Sanford Levinson (Texas), Christina Mulligan (Brooklyn), Victoria Nourse (Georgetown), Richard Primus (Michigan), Franita Tolson (USC), and myself.

At the conclusion, David will respond to the commentators.

Saturday, November 09, 2019

How to Regulate (and Not Regulate) Social Media


I've posted my latest essay, How to Regulate (and Not Regulate) Social Media, on SSRN. Here is the abstract:

This essay is the text of a keynote address given at the Association for Computing Machinery conference on Computer Science and Law on October 28, 2019.

To understand how to regulate social media you must first understand why you want to regulate it.

We should regulate social media companies because they are key institutions in the twenty-first century digital public sphere. A public sphere does not work properly without trusted and trustworthy intermediate institutions that are guided by professional and public-regarding norms.

The current economic incentives of social media companies hinder them from playing this crucial role and lead them to adopt policies and practices that actually undermine the health and vibrancy of the digital public sphere.

The point of regulating social media is to create incentives for social media companies to become responsible and trustworthy institutions that will help foster a healthy and vibrant digital public sphere. It is equally important to ensure that there are a large number of different kinds of social media companies, with diverse affordances, value systems, and innovations.

Treating social media companies as state actors or as public utilities does not solve the problems of the digital public sphere. One might create a public option for social media services, but this, too, cannot serve as a general solution to the problems that social media create. Instead, this essay describes three policy levers that might create better incentives for privately-owned companies: (1) antitrust and competition law; (2) privacy and consumer protection law; and (3) a careful balance of intermediary liability and intermediary immunity rules.

Friday, November 08, 2019

The Case for Basic Health

Joseph Fishkin

We seem to be approaching an apotheosis of liberal health care angst, as the irresistible force of the appeal of truly universal health care meets the immovable object of Democrats’ desire to make double-triple-sure not to lose the 2020 election. Replacing our current shambles of a health care system with something much simpler and more efficient and equitable makes all kinds of moral, economic, practical, and fiscal sense. However, as Elizabeth Warren is discovering, when you actually spell out a plan for Medicare for All, you start taking heavy fire fast. (And we’re still in the friendly-fire phase—the cynical and deliberately false attacks in the general election will be worse.)

The argument that Medicare for All will be a political albatross has two parts. First, critics argue, moving to a single-payer system will require substituting visible, salient, and unpopular taxes for the submerged and obscure premium costs middle-class people may not realize they’re paying now. That will be unpopular. Second, critics argue, many of the majority of Americans who now have employer-based coverage fear losing it. That fear, in my view, has two distinct components: (A) a fear of disruption of whatever is going well with your current insurance coverage, and (B) what we might call fear of equality: the fear that however flawed your current insurance may be, it must be a lot better than whatever would be offered in a universal program open to the poor.

This week Elizabeth Warren came out swinging with an answer to the first part. She now has a plan for how to pay for Medicare for All that—unlike Bernie Sanders’ plan—does not involve any tax increases on the middle class. By cleverly insisting that both states and employers keep paying much of what they are already paying (except that the payments will now go to the federal government), she avoids asking the same of the middle class. What she hasn’t done is address the second part—many Americans’ fear of losing their employer-based coverage. And that is actually the bigger problem.

It’s not a new problem. It’s one that a lot of very smart people have thought about a lot. Obamacare itself was one response: build on the patchwork system we have, focus on expanding coverage for the uninsured, and minimize disruption to the employer-based health insurance system and the industry that profits from it. Medicare-for-all-who-want-it, which is to say, adding Medicare as a public option throughout the country, through something like the Obamacare system of exchanges and income-based subsidies, is a strong next step and has become the moderate Democratic position. If the public option is efficient and generous enough, it will eventually supplant private insurance. Or, as Jacob Hacker proposes somewhat more ambitiously, we could automatically enroll everyone in Medicare who isn’t already in a good enough employer-based plan. (Employers could choose whether to provide a more robust plan, or just pay to enroll their workers in Medicare.) These plans are framed as alternatives to Medicare for All.  But in fact there is no good reason why Elizabeth Warren, or any other Democratic nominee, cannot simultaneously argue (1) my long-term policy plan is Medicare for All and (2) as a shorter term, transitional policy, to get us from here to there, I embrace some approach along these lines.

But there’s also another way to get from here to there. We can enroll everyone in the United States tomorrow in a new, cheap, mini health insurance plan that covers—at first—only a short list of specific medical interventions and treatments. Begin with the lowest-hanging fruit: vaccinations, screening and treatment for certain contagious diseases, basic prenatal care, particular cheap generic drugs that can prevent costly hospitalizations. The idea is to emphasize specific areas where there are huge benefits to the entire American population from making sure everyone has access, whether for public health reasons (e.g. herd immunity) or because of the outsized returns these interventions offer in terms of expensive future medical costs avoided or reduced. (Since the government would directly bear many of those future costs, avoiding them lowers the net cost of the program.) While this “Basic Health” plan is minimalist in its initial coverage, it should cover what it does cover, at least at the start, in a Sanders-Warren maximalist manner: no cost-sharing, no premiums, no co-pays. Basic Health can comfortably coexist with the existing health care system, including employer-based insurance, which would be relieved of the obligation to cover whatever gets on to the short list of treatments covered universally by Basic Health. The list of things Basic Health covers needs to be simple, easy to understand, and very public.

Read more »

DACA at the Supreme Court

Guest Blogger

Andrew Pincus

The current Supreme Court term is packed with “big” cases, but next week’s argument in the DACA cases promises to be one of the biggest.

It’s another confrontation over the Trump Administration’s hard line on immigration—the decision to shut down the Obama Administration’s  Deferred Action for Childhood Arrivals program that deferred deportation and provided eligibility for work authorization to approximately 700,000 undocumented young people who came to the United States as children, lived here continuously since at least 2007, obtained at least a high school education, and passed a background check.

But this dispute has a unique twist.

The Trump Administration typically claims expansive executive branch authority regarding immigration-related actions—e.g., the travel ban, the reallocation of funds to build the wall on the border with Mexico, the attacks on state and local public safety laws, and the addition of the citizenship question to the census. For DACA, however, it asserts that the program had to be ended because it was unlawful: the Administration’s basic argument is that executive branch lacked the legal authority to adopt DACA.

It’s odd for any Administration to argue for limited Executive Branch power: the typical position is that it has the power, but also the discretion to decide whether and how to exercise it. And it’s particularly surprising for the Trump Administration to take that position on an immigration issue.  What’s going on?

The DACA backstory shows that political imperatives forced the Administration to rely on the lack-of-authority argument, rather than invoking policy discretion—which then hobbled the Administration’s ability to defend its actions in court. Indeed, the Administration’s recent, eleventh-hour attempt to invoke policy discretion likely rests on the government’s recognition of the weakness of its position that DACA is unlawful.

The critical questions for the Justices are whether they will sanction administrative law arguments that allow the Administration to avoid accountability for its decision and shift the blame to “the law” and “the courts”; and whether they will require adherence to long-settled procedural rules governing agency action, or let the Administration avoid those rules in a rush to uphold its termination decision.

To understand the legal issues before the Court, it is first necessary to journey back to 2017, when the Trump Administration was trying to decide what to do about DACA.

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Fact Witnesses in the Impeachment Trial

Gerard N. Magliocca

Some of the witnesses that House investigators want to hear from are not testifying because the President is telling them to stay quiet. Before the House votes on articles of impeachment, the courts may rule on whether the President can do this, but who knows. When the Senate trial begins, though, the calculus shifts in favor of testimony.

The President's main explanation for not cooperating now is that the House inquiry is a kangaroo court. In the Senate, though, he cannot make that claim. Republicans control the chamber. The Chief Justice presides. The President gets lawyers and most of the machinery of due process. If, then, the managers from the House call John Bolton (let's say), on what ground can the President refuse?

One answer is executive privilege, but that is not a great argument. It is not clear that executive  privilege applies in an impeachment proceeding at all. Even if executive privilege does apply, the argument for executive privilege is weaker in a Senate trial. Since the House can investigate anything during the impeachment process, there is an argument that confidential conversations that should not be divulged will be and that the House is just engaged in a fishing expedition. In the Senate, though, articles of impeachment should narrow the scope of any potential testimony. Many matters covered by executive privilege will simply be deemed irrelevant at trial. For matters that are relevant to the charges, a fair trial is impossible without full testimony. (There's also the problem that presidential refusal may reinforce an obstruction of Congress article of impeachment, assuming that the House approves one).

If I a right, then the means that the trial will be long. Some of witnesses before the Senate will not have testified before the House. Thus, both sides will need time to prepare for their questioning in a way that will not be true for the people who testify before the House.  

Wednesday, November 06, 2019

The ERA Is on the Way

Gerard N. Magliocca

Yesterday Democrats won control of the Virginia Legislature. Ordinarily this would matter only to people in Virginia. But not this time. The Virginia results mean that next year the question of whether the Constitution contains a Twenty-Eighth Amendment will come before Congress.

Virginia is one of the states that has not ratified the proposed Equal Rights Amendment. Last year, efforts by Democrats in the state legislature to obtain ratification were blocked. With Democrats in  control, though, ratification is likely in 2020. A ratification by Virginia would mean, by one counting method, that three-quarters of the states (38) will have ratified the ERA as required by Article V.

If Virginia ratifies the ERA, a petition will be presented to the Archivist of the United States, David Ferriero, seeking formal recognition of the ERA as the Twenty-Eighth Amendment. The Archivist will almost certainly deny the request. He can cite two reasons. First, there is doubt about whether 38 states have ratified the ERA because in the 1970s five states that ratified attempted to rescind their yes votes. Are these repeals valid? Second, Congress passed a joint resolution in the 1970s stating that the deadline for states to ratify the ERA expired in 1982. The Archivist cannot ignore the deadline unless he concludes that Congress lacks the authority to set deadlines by joint resolution.

The action will then move to Congress. Resolutions are already pending in the House and in the Senate to repeal the ratification deadline for the ERA. As I explain in this article that will appear shortly in Rutgers Law Review, Congress has the authority to count states as ratifying an Article V amendment even when those states subsequently rescinded their ratification. Likewise, Congress also can change a ratification deadline listed in a prior joint resolution. Accordingly, Congress can by joint resolution declare the ERA part of the Constitution once Virginia ratifies. (Whether they should is a more complicated question that my article discusses at length.) The Article V process is unusual in that neither the President nor the Supreme Court may review Congress's decisions.

At a minimum, this means that members of Congress will have to take a position next year on ERA ratification. One can also imagine the House of Representatives passing a resolution saying that the ERA is part of the Constitution. The Senate is probably not going to follow, especially since any such resolution may be filibustered. Still, look for the ERA to become a campaign issue across the country.

There is one final factor to consider. In the midst of this discussion, the Supreme Court will hand down its decisions on whether sex discrimination under Title VII of the Civil Rights Act of 1964 includes discrimination based on sexual orientation and/or transgender status. If the Court says that sexual orientation and/or transgender status is covered by the word "sex," that arguably means that the ERA would also apply to those categories. This possibility might, in turn, change how the Court rules in the Title VII cases. The ERA did not come up in oral argument, though the point was made in at least one of the amicus briefs. Some of the Justices might pay more attention to this issue, though, after Virginia ratifies and Congress gets involved.

Saturday, November 02, 2019

Symposium on Robert Tsai, Practical Equality: Collected Posts


Here are the collected posts for our Balkinization symposium on Robert Tsai’s new book, Practical Equality: Forging Justice in a Divided Nation (Norton 2019).

1. Mark Graber, Introduction to Symposium on Robert Tsai, Practical Equality.

2. George Thomas, “Low but solid ground in the struggle for equality”.

3. Susan Burgess, The People Who Don't Fit In.

4. Nelson Tebbe, The Dissent Option.

5. Mark Graber, Practical Equality and Rotten Compromises.

6. Robert Tsai, How Do We Measure Good Progress?

Friday, November 01, 2019

How Do We Measure Good Progress?

Guest Blogger

For the symposium on Robert TsaiPractical Equality: Forging Justice in a Divided Nation (Norton 2019).

Robert Tsai

            My thanks to Mark Graber and Jack Balkin for hosting this Balkinization symposium on my new book, Practical Equality. My special appreciation for the close read of the book by Mark, George Thomas, Susan Burgess, and Nelson Tebbe. In this post, I’ll respond to their thoughtful critiques and offer a few clarifications.

            Practical Equality argues that progress on equality has been achieved not only through consistent advancement of powerful, ideologically consistent conceptions of what equality demands, but also through ingenious efforts to turn to other ideas to do egalitarian work when significant obstacles are encountered. Some of those ideas overlap with equality—such as fair play, anti-cruelty, and free speech—and some concepts are not obviously about equality at all, such as the rule of reason. In a forthcoming online essay for George Washington Law Review called “Equality is a Brokered Idea,” I defend Chief Justice Roberts’s apparent switch in the census case as an example of practical equality—in that case, deploying the rule of reason effectively to resolve a dispute so as to satisfy serious egalitarian concerns when traditional methods (and in that particular case, procedural difficulties) stand in the way.

What I’ve begun to elaborate in the book and elsewhere is a theory of the second-best, recognizing that justice requires us to toggle between two theories at once: some robust notion of the good life and some account of what we are willing to live with temporarily, and even call good progress, on the way to some better place.

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Thursday, October 31, 2019

Academic Constitutional Theory and Judicial Constitutional Practice

Mark Tushnet

Some conversations while I've been traveling around the world provoke the following thoughts. Academic constitutional theory produces important distinctions that are difficult for those not embedded in the discourse to understand. The ones that have been apparent in my conversations involve developments in originalist theory. As things have shaken out, the distinction between interpretation and construction has taken a quite large role. Within the domain of construction, we can distinguish between construction via executive and legislative practice (which seems to me to have been the first account) and construction via judicial practice as well (which seems to me to be coming to be the prevailing account). Without commenting on those distinctions, I simply observe that communicating to outsiders their importance in making originalist theory coherent is, for all practical purposes, impossible. 

And, judges are outsiders in the relevant sense. (So are conservative op ed writers/public intellectuals.) Academic originalism (or originalisms, as I prefer to say) doesn't correspond to what judges say and do when they call themselves and their opinions originalist. Sure, judges can sometimes "decorate" their opinions with citations to academic originalists (or indeed academic theorists of any other stripe). So can op ed writers. ("Decorate" was the word Abe Fortas used when presenting his law clerks with draft opinions lacking citations. My view, for what it's worth, is that Fortas was articulating in a quite concise way a deep Legal Realist jurisprudence.) Judicial practice, though, is linked only nominally to academic originalism(s). We can see this in the very opinions that say that they rely on constitutionally relevant executive and legislative practices. This isn't a novel observation: Eric Segall has been making it for years.

So what is going on when judges and op ed writers call themselves originalists. They are virtue-signaling, telling people which party (these days, literally) they belong to. In my forthcoming book (May 2020), I call originalism(s) a shibboleth used to test one's loyalties. I know, I know: "Living Originalism" and all that. My view is that "Living Originalism" (the book itself) should be read as high irony -- akin to Swift's "Modest Proposal."

As Segall has emphasized, judges are all originalists now, just as they are all textualists now (and as they are all living constitutionalists now) -- and that tells us nothing at all about what judges actually do, or about the justifications their decisions rest upon, or, as far as I call tell, anything interesting about judicial practice. (Academic work on originalism can have academic virtues, though -- like all other forms of legal scholarship -- it doesn't always.)

For what it's worth, I think that constitutional scholars should spend less time worrying about originalisms and more time thinking about why (if at all) the "umpire" metaphor is wrong beyond the superficial observation that umpires actually have some discretion, as we saw in Game Six. The Chief Justice's metaphor gets what it needs if there are significant limits on discretion. Deep-dyed Legal Realists like me think that there aren't. For me, these days, the interesting interlocutors are the liberals/progressives who believe, with the Chief Justice, that there are, and that the Chief Justice is somehow wrong nonetheless.

Don't Mess with the Deep State

Mark Tushnet

I take Andy Koppelman's post to be a serious parody. I want to focus on the serious part -- the claim that there is, in some important sense, a "deep state" operating in the United States through high-ranking members of the permanent civil service and the national security bureaucracy. (It's not a "State" with a capital-S, unlike the prior Egyptian and Turkish Deep States, because the U.S. version doesn't -- as far as I know -- have an organized hierarchical structure.)

High-ranking long-term civil servants and national security bureaucrats have unsurprisingly been socialized into a role with two components, a procedural one dictating that they subordinate their personal views about policy to the views held by their political superiors and a substantive one consisting of the value-commitments their political superiors have had over a sustained period. These two components come apart when a disruptive president arrives on the scene. (To take an earlier and today less charged example, recall the comments when Reagan arrived about how difficult it was to change the direction of a battleship.) It should be no surprise to find that there's variation in the degree to which individual high-ranking civil servants and national security bureaucrats act in light of those two role-components. Nor is it surprising that individual calculations of the proper balance might shift as the possibility that the direction they are getting from their political superiors will change soon.

That seems to me what's been happening. Beyond that observation, a few additional comments. (1) I think it's interesting -- and to a person skeptical about the U.S. tradition of military intervention abroad in the name of national security troubling -- that the long-term civil servants and national security bureaucrats who have acted "against" Trump have done so because of his refusal to go along with as full-throated an interventionism as they appear to believe appropriate (and not because, for example, they believe that his relationship with Vladimir Putin is intrinsically troubling). Or, as conspiratorial Marxists used to say, maybe it's no accident that Trump's actions in Syria have amplified the Ukraine affair.

(2) Ordinarily small-d democrats would be hostile to anything like a deep state, for obvious reasons. A specific example is the ideal of civilian control of the military. Sometimes, though, the military -- and a "deep state" of some sort -- might serve a pro-democratic role. Ozal Varol's work on the pro-democratic coup is useful here. And concretely, Turkish president Erdogan's successful defeat of the Deep State there has not turned out well from a democratic point of view. I doubt that there are general criteria for assessing when a "deep state" is pro- or anti-democratic -- which is to say that Trump's invocation of "deep state" ideas and liberal responses to/dismissals of that invocation are both "merely" political claims about the underlying substance of Trump's policies. They are not deep or even superficial observations about proper institutional behavior in a democracy.

(3) Much more narrowly, and related to (1) above, I think it's interesting that, at least to this point, nothing similar to the reaction of the national security bureaucracy has been forthcoming with respect to domestic policy, and in particular from the Department of Justice. (As Koppelman's post suggests, the environmental bureaucracy has been put under control.) For all the celebration of the independence of the Southern District of New York, for example, collateral investigations there to the Mueller investigation appear to have been closed without result (nor, of course, have there been leaks on any significant scale). It would be really interesting were the Durham investigation to produce some minor charges in connection with its nominal subject and some major ones endorsing important aspects of the initial stages of the Mueller investigation. I don't rule out that possibility, because -- as I said at the beginning -- there is a deep state, and maybe (as his supporters regularly say, though not in terms) John Durham is a member of it. (At which point I have perhaps switched into "serious parody" mode.)

Tuesday, October 29, 2019

The military deep state

Andrew Koppelman

     One of President Trump’s signature measures is his effort to purge the federal bureaucracy, what he calls the “deep state,” of longstanding institutional commitments that are inconsistent with his political program.  Trump’s crude buffoonery should not keep us from seeing that he has an implicit constitutional theory: the President is the voice of the people, and the institutions of government that were there when he arrived, to the extent that they embody an ethic that impedes his goals, are the enemies of the people.  It is that inconsistent ethic that makes “deep state” a derogatory epithet for Trump’s followers.

     Recent events in Syria suggest that Trump logically ought to start picking on a new target: the U.S. military, which has an ethic radically at odds with his own.

The campaign against the deep state is particularly clear with respect to climate change.  Many government departments rely on science to plan for the future.  This leads them to issue reports premised on (among other things) the massive evidence that human action is bringing about ecological catastrophe.  Trump, however, ran on a platform that denied that climate change was happening.  Hence, the scientists had to go.  To take one notable example, Joel Clement was forced out of his policy analysis job because he was working on mitigating the danger of climate change to Native American communities.  It wasn’t that Trump had anything against those communities.  But Clement’s work was inconsistent with a core Trump Administration commitment.

     The recent, abrupt withdrawal from Syria, and American soldiers’ horrified reaction, suggests that it is now time for another Trump purge.

     The ethic of the military has always been based on courage, respect for authority, trustworthiness, integrity, and above all loyalty.  Until now, Trump had no reason to question all that.  But now it has become a problem for him.  The military’s ethic chafes at walking away from our friends and compatriots, people with whom Americans have fought and died, and leaving them to mass murder and oppression.

     Events since Trump’s decision have shown just how much the U.S. was accomplishing with a skeleton force of a few hundred troops.  The Turkish invasion was enormously helped by the abruptness of America’s withdrawal, which gave the Kurds no time to prepare.  (It also disrupted the joint American-Kurd operation that led to the death of ISIS leader Abu Bakr al-Baghdadi – a potentially disastrous miscalculation that warrants its own investigation.)  After their abrupt exit, hundreds are dead and there are about 170,000 refugees.

American troops have responded to the precipitate betrayal of the Kurds with shame and disgust.  “It will go down in infamy,” said one veteran Army officer who had served in Syria. “This will go down as a stain on the American reputation for decades.”  "I am ashamed for the first time in my career," said one Special Forces soldier in Syria.  Another Army officer:  “As Turkey attacked, I couldn’t help but feel ashamed, number one, to have been part of it and, number two, that we, America, I believe are violating our values.  America in my mind is still the shining beacon on the hill, but we are not living up to that right now.” 

They clearly are not with the program.

     Just as it was necessary to cull the federal bureaucracy and all its public statements to eliminate any reference to climate change, it will now be necessary to cull the military and all its public statements to eliminate any reference to honor.

     If Trump takes his opposition to the deep state seriously – it’s not clear that he does – then the military will have to be reshaped in his image.  It will have to be a pretty thorough overhaul, probably the sort of radical step that is best postponed until his second term.  Keep an eye out for Fox News segments explaining why traditional notions of loyalty and honor are signs of the un-American weakness of wimpy, Chablis-drinking, politically correct liberals.

Can the Senate Subpoena the President?

Gerard N. Magliocca

Suppose the House impeachment managers subpoena the President in the Senate trial. Would he be legally obligated to obey and be questioned? The Chief Justice may have to decide this issue.

An impeachment trial is not a criminal trial, where the privilege against self incrimination applies. The Senate proceeding is more analogous to a civil trial, where there is no such privilege unless the testimony in question might plausibly lead to criminal charges. As far as I know, neither President Johnson nor President Clinton were subpoenaed in their trials. I'm not sure why. The managers may have thought that the testimony would not help their case. Or they might have thought that the President could not be subpoenaed when he was the accused due to separation of powers concerns.

If the Chief Justice rules that the President can be subpoenaed, then he could, of course, refuse to comply. But this presents a problem. If the House of Representatives votes out an impeachment article based on the President's alleged obstruction of Congress (by refusing to comply with House subpoenas), he would be making that problem worse by also defying a Senate subpoena.

Monday, October 28, 2019

The Umpire Analogy Does Not Work for Impeachment

Gerard N. Magliocca

I want to make a couple of additional points about the Chief Justice's role in the upcoming trial. One is that, as I read Article I, the Chief Justice is required to preside. He cannot recuse, as one article that I read today suggested. More important, some are suggesting that a Chief Justice plays a limited role in an impeachment trial, more akin to an umpire.

Let's be clear here. The Chief Justice could choose to exercise his broad discretion with restraint. He would then be following the model of his old boss Chief Justice Rehnquist during the Clinton trial. But Roberts could instead follow the precedent of Chief Justice Chase, who took a more muscular view of his authority in Andrew Johnson's impeachment trial. The upcoming trial will look more like the Johnson version than the Clinton version (for instance, there will be fact witnesses), which lends itself more to following Chase's example.

A broader point is in order here. The Chief Justice's famous comparison of a Justice to an umpire (with the connotation of restraint) strikes me as a poor fit with the role of a trial judge. I think many trial lawyers would scoff at the suggestion that trial judges are just umpires. Instead, these judges exercise enormous discretion depending on their view of the case. Appellate judges are (or ought to be) more restrained, but the Chief Justice will not be an appellate judge in the Senate.

Practical Equality and Rotten Compromises

Mark Graber

Robert Tsai’s Practical Equality: Forging Justice in a Divided Nation offers practical advice for progressives living in temporary hard times.  Progressives when they cannot achieve a full loaf should eschew compromises that lock-in inequalitarian commitments and find strategies that move the law forward while leaving open the possibility of further progress.  Brown v. Mississippi (1936) is an excellent illustration of that strategy.  The Supreme Court in that case took a stick away from segregationists by ruling out certain brutal modes of seeking confessions, almost exclusively used when African-Americans were suspected of crime.  The justices did not, however, lend any legal sanction to other practices that promoted racial subordination in the mid-twentieth century polity.  Craig v. Boren (1976) might serve as an example of the strategy Tsai would have progressives avoid wherever possible.  The Supreme Court in that case raised the standard for gender discriminations from rational scrutiny to immediate scrutiny.  In doing so, however, the justices set a precedent against raising the standard for gender discriminations to strict scrutiny.

Practical Equality provides sound advice for progressives who are experiencing temporary setbacks on the road to Damascus.  Professor Tsai has a rich grasp of constitutional law, constitutional theory, constitutional politics and constitutional history, all of which are employed in his effort to move American politics progressively forward during times in which progressives need allies to achieve even modest degrees of progress.  He points out how in the past and at present moving to various consensus norms can be means of achieving greater political equality.  Progressives can substitute procedure for substance.  They can require that African-Americans be treated fairly in the criminal justice system even when they cannot destroy the vestiges of Jim Crow.  Progressives can substitute a safer equality for a greater equality.  They can seek to wipe out racial discrimination in the capital punishment charging process even when they cannot wipe out racial discrimination in the capital punishment sentencing process.  They can insist progressive reformers speak freely even when too many in the audience are unwilling to listen to their blandishments.

Professor Tsai’s advice works best during temporary hard times for progressives.  Progressives do not want to lock-in inegalitarian practices during these periods because they expect in the near future to make greater progress.  This greater progress is in part a result of expected greater increases in public support for egalitarian practices.  The more persons over time who support same-sex marriage, the less the backlash to laws and judicial decisions legalizing same-sex marriage.  This greater progress is also in part a result of expected greater precedential support for more egalitarian decisions.  Brown v Mississippi can be used to provide precedential support for striking down other brutal practices in the criminal justice system directed primarily at persons of color.

Practical egalitarian solutions may nevertheless privilege political lock-ins by sanitizing inegalitarian practices even as they avoid legal lock-ins by keeping broader legal questions open.  Consider the constitutional politics of Brown v Mississippi  rather than only the constitutional law.  Students of southern politics have documented how constitutional politics in the former Confederacy was often a struggle between elites who favored a kinder, gentler racism that would not alienate northerners thinking of doing business or perhaps moving to Dixie and a more populist racism embodied by lynch law.  Prominent southern elites may have opposed national lynch laws, but the decline of lynching in the twentieth century was partly due to the efforts of those favoring a kinder, gentler racism.  Indeed, Professor Tsai points out that Brown drew a dissent in the Mississippi state courts from a jurist who was no doubt a kinder, gentler racist.  This constitutional politics highlights how judicial decisions forbidding brutal practices in the criminal justice system that from a legal perspective promoted a more egalitarian order may also from a political perspective have strengthen Jim Crow by eliminated the worse abuses of a horribly abusive practice in ways that privileged more elite commitments to white supremacy.  Racism without extra-legal violence has more supporters than racism enforced by mobs.  Michael Klarman details how the death of segregation was hastened considerably by the backlash to Brown v. Board of Education that substantially weakened the power and authority of kinder, gentler racists.  Southerners willing to live with Brown v. Mississippi had to be ousted from authority for northerners to insist on Brown v. Board of Education.

Practical equality solutions risk picking the low-hanging fruit in ways that may make other harvests politically more difficult.  Consider capital punishment.  Most progressives are opposed to capital punishment on principle. Many non-progressives are queasy about capital punishment because they worry about executing innocent persons, think some classes of persons (teenagers, the mentally ill) ought not be executed, or believe that capital punishment is imposed in ways that discriminate against persons of color.  If given a choice between capital punishment as practiced in the United States and no capital punishment, the queasy moderates might choose no capital punishment.  If, however, a series of laws and judicial decisions sanitize capital punishment so that the chance of executing innocents is minimized, the execution of sympathetic individuals is forbidden and procedures are devised to reduce racism, the result might be increased support for capital punishment.  Sometimes the effort you spend running a marathon makes the last miles easier; sometimes that effort makes the last miles more difficult.  The same may be true for progressive reform.  In theory, the next progressive steps are left open.  In practice, moving part way to the goal may make further movement more difficult.  Ask proponents of the ERA what happened when the most offensive gender discriminations were removed from statutory books.

Rotten compromises may seem attractive during times when locking in minimal commitments to equality seems more important than avoiding locking in inegalitarian commitments. Reconsider Plessy v. Ferguson from the perspective of the turn of the twentieth century.  Professor Tsai and every other contemporary scholar condemn that decision for locking in the principle that racial segregation was constitutional.  Plessy, however, also locked in or at least provided foundations for the principle that segregation had to be equal.  As Democratic speeches during the debates over the Civil Rights Act of 1871 and 1875 made clear, whether segregation had to be equal was not clear under the Fourteenth Amendment.  White supremacists in Congress insisted that Congress had no power to regulate such domestic matters as education and transportation, that states might bar children of color from school altogether.  No one will pretend that segregation was equal in any way.  Nevertheless, a fair claim can be made that for fifty years, persons of color in the Jim Crow South got a little more and only a little more than they might have gotten because at the very least everyone had to pay lip-service to the principle that segregation was equal and starkly inegalitarian forms of inequality could be legally challenged, sometimes successfully.

Practical Equality provides progressives with an extraordinary menu of possibilities for making progressive gains without making progressive sacrifices, but not with the means of making the really rotten compromises that national divisions may compel.  Compromise may be the attractive alternative when more benefits can be locked in by locking in perceived evils than by practical equality solutions.  Segregated education may be better than no education. When the wind is blowing away from progressive notions of equality, locking in some progressive policies in practice may be a better alternative than keeping progressive utopias open in theory.  Most controversially, to the extent constitutions are compromises with evil rather than blueprints for the good society, forging justice in a divided nation may require the really rotten bargains that enable people with very different conceptions of equality and the good society to share the same civic space.

Sunday, October 27, 2019

Traditionalism and Anti-Novelty as Modes of Constitutional Interpretation: The Case of Tax-Exemption for Churches

Mark Tushnet

Marc DeGirolami has posted an interesting extension of his argument for traditionalism as a mode of constitutional interpretation. He knows that one key issue associated with traditionalism is the characterization of the tradition: "How narrowly or broadly can a court draw any given practice to construct a tradition?" Referring to the Bladensburg cross case, DeGirolami criticizes Justice Breyer for "drawing" the practice with reference solely to the very cross at issue -- properly so, in some sense, because you can't use was I think philosophers would call a "token" as the more general thing of which it is a token. But, of course, that criticism doesn't address the possibility that we could characterize the cross a little more generally -- as a token of a practice involving crosses as symbols of wartime sacrifice in connection with a war that the wider culture immediately (recall the citation of "In Flanders Field") associated with crosses, for example -- without moving to the more general "war memorials" or (even) "memorials of sacrifice" or (even) ... well, you get the point.

The characterization issue is a standard "level of generality" problem, and the general form of the solution to such problems is well-known: You can't solve a level of generality problem associated with some interpretive approach from within that approach itself. In connection with traditionalism, Jack Balkin noted the problem on this blog (so long ago that I lack the technical capacity to retrieve it!) in connection with Justice Scalia's suggestion that, in determining whether a practice was inconsistent with long-standing tradition, we should characterize the tradition at the most specific level available.

DeGirolami's approach is pretty clearly more suitable for upholding legislative actions than for invalidating them. On the "invalidation" side, traditionalism might be linked to the (emerging?) "anti-novelty" principle, according to which the fact that governments have refrained from doing something (again, a level of generality problem lurks) is an argument against the constitutionality of their doing so for the first time.  (Leah Litman offers a good critique of the anti-novelty principle.)

But consider the following: denying tax-exempt status to religious institutions that discriminate against LGBTQ people in connection with their social service activities. (For a reason that I understand but that is mistaken, I have been associated with such proposal, about which -- until now -- I have not, as far as I can recall, written a word.) Put aside for the moment questions about what the precise scope of such a provision would be. Would a reasonably broad denial of tax-exempt status on this ground be unconstitutional?

The anti-novelty principle suggests that it might be. Legislatures have provided religion-based exemptions from even "core" civic obligations from the beginning, though the contours of the exemptions have sometimes been contested. These legislated exemptions include conscientious objection to military service and the "priest-penitent" evidentiary privilege. In a post-Smith world, though, these exemptions appear to be optional rather than mandatory. And, even in a pre-Smith world the exemptions might be explained as reflecting legislative judgments about what circumstances required for compelling governmental interests to be advanced (that is, judgments that the governmental interests wouldn't be unduly impaired by granting the exemptions). If so, a contemporary legislative judgment that imposing the regulation was needed to advance such goals would present a different case. (This is, of course, another variant on the "level of generality" problem.)

Hosanna-Tabor constitutionalizes exemptions for something even in a post-Smith world. Exactly what is constitutionalized, though, is unclear. Proponents of the "freedom of the church" reading of the case argue that a great deal is constitutionalized (though in my view they make too much of the highly technical question of whether the exemption question is "jurisdictional" under the relevant federal statutes). Bob Jones holds that an exemption for race-based discrimination is not constitutionally required, and Hobby Lobby seems to imply that even in a post-Smith world imposing a requirement not to discriminate on the basis of race would be a compelling governmental interest.

Note that one of Justice Scalia's concerns in Smith would be brought into play in the case I'm imagining. He worried -- properly, in my view -- about the problems the courts would face in saying that they agreed with the legislature's judgment that eliminating race-based discrimination was a compelling governmental interest but (in the present context, which is not one Justice Scalia appears expressly to have contemplated) that they had the power and indeed duty to disagree with a legislature's judgment that eliminating LGBTQ discrimination was also a compelling governmental interest.

I take a modest position here on the constitutional question I've flagged: I don't think that it is obviously unconstitutional under current or even pre-Smith doctrine. My thought is that work needs to be done on a bunch of issues associated with traditionalism in constitutional interpretation: the level of generality problem pretty clearly, and perhaps its connection to anti-novelty arguments. I look forward to DeGirolami's development of his ideas on these and related questions.

Friday, October 25, 2019

The Dissent Option

Guest Blogger

For the symposium on Robert TsaiPractical Equality: Forging Justice in a Divided Nation (Norton 2019).

Nelson Tebbe

            In his elegant book, Practical Equality: Forging Justice in a Divided Nation, Robert Tsai urges egalitarian lawyers and judges to respond to political polarization by compromising. When they find themselves unable to attain ideal equality, as they often will, lawyers on the left should embrace constitutional concepts that can do some of the same work while winning enough agreement from the other side to be implemented. Practical substitutions for principled equality can include procedural due process, rationality review, the prohibition on cruel and unusual punishment, and free speech.

            Compromise can be justified for all the reasons Tsai suggests. Although the solutions it enables are nonideal, they may be preferable to stalemate and therefore permissible or even obligatory in the real world, all things considered. Moreover, as Tsai notes, settlement can lower the temperature of conflict. And finally, second-best solutions can sometimes pave the way for first-best solutions.

            Yet egalitarians could respond to opposition in another way—they could dissent. That option receives less attention in Practical Equality, but it ought to be considered as an alternative to concession under certain circumstances. I offer this amendment in an appreciative review of Tsai’s book that is forthcoming in Constitutional Commentary.

Constitutional actors in a polarized political environment sometimes take positions not simply to articulate principles that can inform an eventual compromise, but also to widen the window of acceptable interpretations or else to shift that window in a favorable direction. They may make assertive constitutional arguments even though they know that doing so will decrease the likelihood of success in the near term because they believe that staking out such stances will increase the probability of favorable outcomes in the medium term. Manipulation of the Overton Window can be especially potent where it is patterned and asymmetric. When an opponent is engaging in tactics like these, concession may be self-defeating. Instead of moving government policy in the direction of justice or lowering the temperature of conflict, it may embolden inegalitarian constitutional arguments.

            This dynamic can characterize appellate courts, which are Tsai’s central concern (though often he addresses lawyers arguing before them rather than judges themselves). Egalitarian judges who find themselves in the minority on a question of equality may be faced with a choice: they can join the majority (or concur separately) with the hope of mitigating an otherwise extreme result, either in the instant case or in a line of future decisions. Or they can dissent. Which option is best sometimes can be discerned only by performing a complex calculation that includes the degree and value of concession from the other side, the likelihood of prevailing in the long run, the size and strength of the majority, and other factors. Calculations may also be specific to particular subject areas; Micah Schwartzman and I are in the process of constructing one such evaluation concerning the Establishment Clause.
In sum, dissent deserves consideration alongside compromise as an option that can be preferable for jurists on the left who find themselves unable to achieve ideal justice. Compromise has a cost that should not be overlooked: it can make the ideal constitutional interpretation look extreme or radical, and it thereby can facilitate a movement or expansion of the window of acceptable legal positions away from egalitarianism. Where some or all of the Supreme Court’s more liberal members join a second-best opinion, for example, they can frame the first-best solution as unreasonable or immoderate. And that can have deleterious ramifications for future cases and for important constitutional disputes outside courts.

Of course, this analysis only holds where judges prefer a principled outcome that they cannot achieve—where they face a strategic choice between concession and confrontation. It doesn’t pertain in the same way when they view the majority outcome as ideal, in other words. Moreover, I am leaving to one side Tsai’s distinction between practical equality and appeasement, which he strongly rejects. Tsai seems to acknowledge that judges should dissent rather than appease, as he defines that term. My question is whether they should take a stand in some other situations as well.

In a reply that is also forthcoming in Constitutional Commentary, Tsai offers several thoughtful reactions. First, he argues persuasively that “the goal of relieving suffering should be paramount.” Where an egalitarian judge faces a choice between relieving some measure of injustice by joining the majority and defending an ideal solution in a dissent, “it’s worth sometimes giving up that ringing dissent.” I agree. My only point is that foregoing a dissent has costs that should be included in the calculus, which then can become intricate. Judges should consider the possibility that embracing a second-best solution, rather than objecting, could embolden aggressive opponents.

Where I may differ from Tsai is on the quality and quantity of the costs of compromise. In his reply, Tsai suggests that dissents derive their force from the persuasiveness of their arguments, not from the number of votes they attract. Tsai has in mind the image of Justice Harlan in Plessy “stand[ing] alone against the tide of popular opinion and the collective judgment of his own colleagues.” But in our everyday world, the vote count does seem to matter. For example, the fact that Masterpiece Cakeshop was 7-2 rather than 5-4 is repeatedly highlighted to lend credibility to its outcome. To say that the size of a dissent never has consequences for the shape of the constitutional culture strikes me as not quite right.

Dissenting can have drawbacks too, as Tsai rightly observes. A “strong, accusatory dissent” may extinguish any possibility of compromise during the process of debate among justices, perhaps even causing the majority to draft a more strident opinion. That must be correct, and it is of course the probable reason that Justices Breyer and Kagan joined the majority in Masterpiece—to help shape a more palatable opinion. Furthermore, Justice Kagan wrote separately to further influence its interpretation. My narrower argument is simply that sometimes that strategy will backfire, as in situations where the majority is seeking to widen or shift the window of constitutional acceptability, and that it comes with the cost of isolating any remaining dissenters.

Ultimately, Tsai and I agree far more than we disagree. (Not surprising, given that we have written together.) If there is a dispositional difference between us, it is that Tsai is sanguine about the promise of compromise in an era of pitched political and constitutional conflict, whereas I worry that we are experiencing a more fundamental destabilization and rearrangement of the constitutional order that calls for different tactics. Of course he is right that oftentimes agreements must be struck to ameliorate the suffering of the people who are immediately affected. But conceding incremental cases may also have structural and longstanding effects that we can only dimly appreciate.

Nelson Tebbe is Professor of Law at Cornell University. You can reach him by e-mail at nt277 at

Thursday, October 24, 2019

The Proposed Senate Resolution is Unconstitutional

Gerard N. Magliocca

Earlier today, Senator Graham announced that he would introduce a Senate resolution condemning the House impeachment inquiry as unconstitutional. Senator's Graham's proposed resolution is itself unconstitutional. The Senate cannot carry out its constitutional obligation to "try all impeachments" if it is on record as pre-judging the case before any articles of impeachment have been drafted. Courts do not declare the guilt or innocence of someone before charges have even been filed. Talk about a kangaroo court.

Moreover, the Senate's own precedents deny the power that Senator Graham is claiming. In 1834, the Senate censured President Jackson for his conduct regarding the National Bank. Three years later, the Senate reversed that conclusion in the Expunging Resolution. The Expunging Resolution, which still stands, was based in part on the argument that the Senate could not pre-judge a possible impeachment from the House of Representatives. In 1834, the Senate had declared Jackson guilty, whereas Senator Graham wants his colleagues to declare the President not guilty. But the principle is the same. As an institution, the Senate is only permitted to express its views on potential impeachable conduct during an impeachment trial.

Individual senators are free to express any opinions that they want. But if Senator Graham's brings his resolution to the floor, the Senate parliamentarian should rule it out of order.

UPDATE: The fact that the House of Representatives also has the sole power of impeachment also implies that the Senate cannot comment on a pending inquiry.

The People Who Don't Fit In

Guest Blogger

For the symposium on Robert TsaiPractical Equality: Forging Justice in a Divided Nation (Norton 2019).

Susan Burgess

Robert Tsai begins by dedicating his new book to “the misfits and the losers.”  This put me in the mind of a quotation from Margaret Atwood that is framed on my office desk: “Every utopia faces the same problem:  what do you do with the people who don’t fit in?”  Atwood has written several novels about utopias that have gone badly wrong, most famously in The Handmaid’s Tale, which has been made into a feature-length film twice, as well as a very popular television series that is currently in its third season on Hulu. As I was writing my review of Tsai’s book, I was also finishing Margaret Atwood’s new novel, The Testaments, which is both a prequel and a sequel to The Handmaid’s Tale.  In an odd sort of way, these two works go together go together quite nicely.

Practical Equality: Forging Justice in a Divided Nation directly addresses the people who don’t fit in, while avoiding what Tsai calls “tragic precedents” like Plessy and the kind of dystopic spirals about which Atwood writes so vividly.  To this end, he takes the concept of aspirational justice seriously, reinterpreting several iconic constitutional cases through the lens of “practical equality,” bringing together friends of liberal democracy and the rule of law across the political spectrum in the United States.  The book begins by discussing how the Trump administration’s Muslim ban was substantially pared down.  It ends with a sobering yet hopeful prediction that incremental liberalism will best rising nationalism and white supremacy, as it has during much of the country’s history.  In between, Tsai applies an interesting form of pragmatic justice to a wide range of iconic cases including Plessy, McClesky, Cleburne, Korematsu, VMI, Terminiello and many others.

Instead of deploying equality to address persistent discrimination, Tsai counsels utilizing less controversial constitutional principles such as fairness, reason, anti-cruelty, and free speech.  Although Tsai concedes that his approach often results in slower, more modest progress, he argues that it is much more likely to build consensus across political lines, “bridging disagreements over what equality requires” (105).  In this manner, justice can be furthered, even as disagreements persist, producing more stable and less inflammatory results.  “For the practical egalitarian,” Tsai explains, “the goal is always to try to minimize any inequalities and ameliorate immediate harms while political debate over fundamental questions continues (131).  This jurisprudence promises to foster civic life by avoiding paralyzing backlash and stigma occasioned by too rapid degeneration of cherished traditions and institutions.    

Tsai concedes that achieving this balance is often difficult.  His discussion of NAACP v. Button exemplifies how practical equality works.   How can the Court address the racist motivations alive and well in the South, yet remain a neutral arbiter?  Sidestepping a direct discussion of equality and racial discrimination in favor of freedom of expression allows the Court to transform a potential 5-4 ruling against the NAACP into a 6-3 victory for the group, showing that liberty and equality “aren’t perpetually at odds,” but can work together to progress justice. (188). 

This is an excellent book that portrays liberal pragmatism at its best.  It provides a compelling defense of liberal democracy as we know it. The catch is, this is not the best of times for liberal democracy.  Tsai modestly proposes that his approach, “requires only that people agree there is epistemological value in the truth, even if that truth is complicated,” a proposition that is under direct attack in contemporary politics (108).  He notes that the United States has made a collective choice to favor robust debate in the hope that the marketplace of ideas will, in the end, prove to be redemptive.  In his view, the violence that broke out in Charlottesville was occasioned by the failure of city officials to ensure safety in the public square by separating radicals and maintaining peaceful conditions for protest.  He calls for more speech denouncing illiberal ideas and notes that other cities learned from those mistakes, as evidenced by peaceful subsequent demonstrations in Boston and Gainesville.  He both concedes that the idea that the United States is not post-racial, as many claimed after the election of Barack Obama, and entertains the idea that “liberalism itself is in its death throes” (228). 

But in the end, Tsai is betting on liberalism, arguing that “Pragmatic measures must be undertaken to reduce inequities even when – and especially when – the direct appeal of egalitarianism fails to win the day” (231).  Even if nationalists and white supremacists don’t fully succeed in transforming the regime, there is little doubt that the form of liberal democracy must transform to survive, perhaps becoming a multi-racial and gendered form of governance that shapes social media and internet, rather than simply responding to it.  Tsai’s accessible and well-argued book will help the friends of liberal democracy keep the faith and continue to move in that direction.  But the next steps remain to be seen. 

Although some had marginalized Atwood’s work as “merely” speculative or science fiction earlier on, that criticism has largely receded given the current dystopic trajectory of contemporary politics.  For her part Atwood has said all along that the events discussed in The Handmaid’s Tale and The Testaments have all happened somewhere in the world at some point in recorded history.  Her work is a painful reminder that regimes rise and fall over the time, democratic and authoritarian alike, leaving misfits and losers pulverized in their wake.  While the end of the political and legal narrative in which we are currently embroiled remains unclear as yet, for her part Atwood concludes The Testaments with a sobering and yet still somewhat hopeful inscription written on the grave of one misfit who didn’t live to see the end of the totalitarian regime into which she was born: “Love is as strong as death.”

Susan Burgess is Distinguished Professor of Political Science at Ohio University. You can reach her by e-mail at burgess at 

An Especially Harsh Government Shutdown is Increasingly Likely

David Super

     Prior to the end of Fiscal Year 2019 on September 30, Congress passed and the President signed a short-term continuing resolution (“CR”) to keep the federal government operational through November 21, 2019.  At the time, the House had passed ten of the twelve annual appropriations bills needed to fund the federal government (all but the intensely controversial Homeland Security bill and the parochial Legislative Branch bill).  Then, and indeed even today, the Senate had passed none of the twelve bills. 

     The hope has been that the House, the Senate, and the President would be able to agree on full-year funding levels by November 21 or, failing that, a short additional CR would provide the time needed.  Increasingly, however, it is appearing that no such agreement may be achieved and another partial government shutdown is likely.  Moreover, if a shutdown does occur, it could do considerably more damage even than the one that began in December 2018. 

     Several factors make an appropriations impasse seem increasingly likely.  First, an immense amount of work remains to be done.  Not only has the Senate not enacted a single appropriations bill – it is trying to move several this week and possibly next – but the House and Senate have yet to agree on even the broadest outlines of how to divide up the available funds. 

     Each year when a budget resolution or budget agreement sets an overall limit on the amounts that may be appropriated for defense and non-defense discretionary programs, the House and Senate Appropriations Committees divide up those funds among their twelve subcommittees.  This year, the House and Senate did so quite differently.  The House would largely divide the funds consistently with past years.  The Senate Appropriators, however, would significantly redistribute funds away from anti-poverty and other human services programs.  Thus, despite a modest increase in total domestic discretionary funding for 2020 relative to 2019, the Senate Appropriations Committee would cut programs within the jurisdiction of its Labor-HHS-Education Subcommittee.  Child care, Head Start, job training, family planning, and education for disadvantaged children would be among the important losers, as would the operating budget of the Social Security Administration. 

     Some House-Senate disagreements over subcommittee allocations are common – although generally not ones of this magnitude – but ordinarily the two chambers reconcile their differences much earlier in the year.  Until House and Senate appropriators do so, little work on drafting individual appropriations bills is possible:  subcommittees cannot start to divide up their pots if they do not know how big their respective pots will be.  The source of the delay is mysterious; it may reflect Senate Republicans trying to determine whether the Administration has any particular targets it wants them to meet. 

     Second, as the Administration rolls out more and more rules and executive orders marking sharp breaks from the past, the number of substantive “riders” – restrictions or prohibitions on appropriations bills – that Democrats will be under pressure to pursue will increase.  Similarly, as new disclosures about how the Administration has conducted foreign policy in Ukraine, Syria, and elsewhere emerge, Members of both parties may want to include more mandatory language in appropriations bills rather than relying on general legislation prohibiting impoundments of appropriated funds.  This will multiply the number and complexity of disagreements that could lead to an impasse. 

     Third, President Trump’s declaration of a state of emergency, and his transfer of money from various military construction accounts to support border wall construction, greatly expands the scope of the issues in any appropriations negotiations.  Not only must opponents of spending money on the border wall focus on that account but they also will want to defund, or statutorily protect from transfer, a wide range of other accounts that the President might raid.  Some Republicans who favor the border wall may nonetheless ally with Democrats to protect against transfers out of military construction accounts important to them.

     Finally, negotiations on an appropriations deal seem likely to interact unfavorably with the impeachment process.  One might imagine that the President would seek to avoid alienating persuadable voters and Senate Republicans with a government shutdown.  To date, however, the President seems to be counting on fiery support from his base to scare Senate Republicans with the threat of primary challenges.  That is likely to make him even more reluctant to compromise.  He also has seemed unable or unwilling to compartmentalize his disputes with House Democrats, who naturally will be among the major parties to a budget negotiation.  The Democrats, for their part, may have trouble persuading their constituents that they need to make deep compromises to a President who seems on the ropes.  And some may be inclined to defund officials or agencies that have refused to comply with subpoenas.

     If a partial government shutdown does occur, it is likely to be even more destructive than the one last winter.  The Congressional Budget Office (CBO) estimated that that shutdown cost the economy $11 billion.  This likely does not include a variety of non-monetized effects, such as loss of morale to federal workers and inefficient or failed government procurement by agencies that do much of their work by contract and were left with only a little over half a year to seek bids and award contracts before the close of the fiscal year.  Nonetheless, a new shutdown is likely to be worse in several respects.

     First and most obviously, it could well last longer as compromise remains elusive for the reasons just discussed.  Indeed, it may be that the President will be wholly unwilling to compromise with House Democrats so that the shutdown continues until twenty Republican senators (and, even more difficult, sixty Republican representatives) are willing to vote to override a presidential veto of funding legislation.  (Of course, if the Senate can muster a two-thirds majority to re-open the government, that might ease the way toward other votes requiring similar super-majorities.)

     Second, several major appropriations bills had already been signed into law prior to last winter’s partial shutdown.  This year, as noted, no appropriations bills have even passed the Senate, much less made their way through a conference committee and across the President’s desk.  Much more of the government will be affected.

     Third, some programs simply cannot wait for their funding this year.  Chief among these is the decennial census.  Census spending is heavily front-loaded in the fiscal year, with activities starting in Alaska in January and in the rest of the country soon thereafter.  If the Census Bureau lacks funds to hire enumerators and take other steps to ensure broad participation, the quality of this Census may be irretrievably compromised.  That might not bother the Trump Administration, but it should alarm the rest of us.  In addition, Medicaid funding is approaching a cliff in Puerto Rico and other U.S. territories that lack the secure funding stream available to the fifty states and Washington, D.C.  If they do not receive new funding soon, they will have to shut down much of their programs in January. 

     Finally, in the months since the last partial shutdown ended, the U.S. Government Accountability Office (GAO) has ruled that some of the steps the Trump Administration took to moderate the effects of that shutdown were unlawful.  Last month, GAO ruled that a contorted scheme to pay February’s SNAP food assistance benefits in January violated the Anti-Deficiency Act.  (A more straightforward approach to continuing SNAP benefits was available, but for whatever reason the Administration did not take it.)   And Tuesday, GAO ruled that the Administration’s order for IRS employees to return to work to process tax refunds also violated the Act.  The Anti-Deficiency Act provides serious criminal penalties for knowing and willful violations.  These GAO opinions undermine any federal employees’ ability to claim that these schemes, if attempted again, were inadvertent violations of the Act.  The Administration therefore may find it more difficult to persuade federal employees to implement policies to soften the impact of any government shutdown.  The President’s continued harsh criticism of federal employees also might cause some to question whether he would sign legislation paying them retroactively for unpaid work they did as “essential” workers during a partial shutdown.  

Wednesday, October 23, 2019

“Low but solid ground in the struggle for equality”

Guest Blogger

For the symposium on Robert TsaiPractical Equality: Forging Justice in a Divided Nation (Norton 2019).

George Thomas

Let me begin where Robert Tsai closes in Practical Equality: “So beware of purists who would lead you to glorious, spectacular defeats when everyday suffering can be reduced through less glamorous, persistent labor” (230). To achieve equality, Tsai calls on us to become less enamored with abstract notions of justice and more attentive to winning real results in a deeply divided and deeply imperfect world. Tsai’ central argument is rooted in what he dubs pragmatic egalitarianism against the backdrop of deep political divisions.

Tsai urges us not to give up on equality and justice in a divided age, but to recognize that second best solutions are often preferable. That’s because such solutions provide the plausible solid ground for us to work on given that we often disagree profoundly on what the “best” solution would be. Tsai calls this a “constitutional duty” (7). Given a constitution that intentionally divides power while fostering a pluralistic society I think that’s right; it also happens to be smart politics. I hope the Democrats vying for the presidential nomination read it; all the more so as it is written in a lively and conversational tone to speak to fellow citizens (if from a left-liberal perspective). Please get Beto a copy.

One of Tsai’s central concerns is the harm of sweeping defeat as seen in cases like Dred Scott and Plessy v. Ferguson. These “tragic precedents” not only rejected claims of racial equality but did so in sweeping ways that caused further social strife and made the achievement of racial equality more difficult in the long run. In finding that blacks—free or enslaved—could not be citizens and “had no rights which the white man was bound to respect,” the Court gave formal sanction to the further inhuman treatment of black people; it also disheartened those who struggled for equal recognition and constitutional rights. The outcome of Plessy was equally demoralizing. Indeed, it invited the growth of state mandated racial apartheid, the legacy of which we as a nation are still paying for.

Cautioning against such defeats, Tsai pushes for a focus on particulars (and often process) that is more likely to advance the case for equality. The idea of simple fair play should have wide appeal. Putting such claims in factual and empirical terms can help bring us to agreement by taking “some of the heat out of the debate” (71).  Consider Yick Wo v. Hopkins (1886). San Francisco passed a city ordinance requiring that all laundries operate out of buildings constructed of stone or brick to prevent fire hazard. Yet the city also allowed owners of laundries operating out of wooden buildings to petition a city board for an exception to the ordinance. When the facts of the case came out, it turned out that such petitions were denied to all of the two-hundred plus owners who were Chinese, while the board granted seventy-nine out of eighty requests by whites. Even more, Yick Wo, a Chinese national who legally resided in the US, had operated his laundry for over two decades in a wooden building that had been inspected by the fire chief. The facts pointed to an unfair process where the board favored whites and discriminated against Chinese owners. The Court agreed, “though the law itself be fair on its face and impartial in its appearance, yet, if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the Constitution.”[1] 

Less well known from the era is San Francisco’s “Queue Ordinance,” which required men held in city jails to have their hair cut to within an inch of the scalp. The regulation prohibited men from wearing a “queue,” a braid of hair traditionally worn by Chinese men. While the law itself did not single out the Chinese, the facts of the case made clear that the law was only applied to the Chinese. In fact, it became evident the law was a hostile punishment aimed at the Chinese that served no legitimate public purpose. As Justice Stephen Field put it, in a circuit court opinion, the queue ordinance inflicted a punishment on the Chinese that was “disproportionate” because it was not “equally borne by others” (138-139).

Drawn together, these cases illuminate Tsai’s insistence on facts and practical principles like fair play. While Tsai points to Yick Wo as an example of the “rule of reason” and the “Queue Ordinance” as an example of “no cruelty,” both highlight how these common sense understandings can work together. In focusing on the facts of the case, in each instance the state was forced to offer a reasoned justification of its regulation, which did not fit with the actual facts. The result was to draw out unequal and unfair treatment that could not be reasonably justified by the facts before us. In the latter case, it also showed a particular form of cruelty: inflicting harm on a group not for reasons of policy, but merely to degrade them. But what these cases truly show is redeeming the principle of equal treatment by focusing on procedural fairness and facts that reveal unfair treatment. And they do so against a pervasive backdrop of anti-Chinese sentiment. While an abstract principle of equality is clearly at the heart of each case, neither case pushed such abstract arguments that may well have failed given racial attitudes in late nineteenth century America.  

Tsai doesn’t shy away from contemporary debates, which make up the bulk of the book as will be obvious from the other posts. Practical Equality is less about formal constitutional law than the sort of constitutional norms and habits of mind he’d like to inspire in citizens and politicians, as well as in judges. Yet while Practical Equality is written to find common ground to advance the cause of equality, one gets the feeling it’s written for fellow left-liberals to provide a roadmap for trimming their sails in troubled times so they may better advance their agreed upon egalitarian vision. Some of this is a function of the times. President Trump delights in casting doubt on the equal standing of racial, ethnic, and religious minorities. With barely a shrug, Republicans acquiesce.

Still, I suspect Practical Equality will attract a wide readership among progressives but have doubts that it will go beyond that circle. I don’t think that Tsai’s intent. Not simply because he makes nods to arguments that those on the right might find persuasive—especially his discussion of free speech and egalitarianism, for example. But Tsai’s arguments would apply equally to efforts by progressives to use the power of the state to harm religious organizations who did not readily approve of same-sex marriage. I say this as a longstanding advocate of the constitutional recognition of same-sex marriage. But in a pluralistic democracy, we shouldn’t punish religious organizations who don’t share this understanding for religious reasons. We must be able to accept as equal fellow citizens those who do not agree on this point, just as we ask such religious believers to accept same-sex couples as equal citizens. Tsai suggests as much at different points, but these concerns have to be teased out of his larger argument. 

Critics could certainly wonder if Tsai is too prone to focus on second best arguments neglecting deeper questions of equality and justice. There’s no question, this is a deeply political book. It situates the push for equality in political terms. I’m not sure how else such values are actually achieved (which does not mean that more abstract philosophical arguments aren’t helpful here, it’s just they aren’t put forward in political and constitutional terms). Tsai makes the case for his pragmatism up front, but I would have liked to hear more from him on this score because I think his case is rooted in the very logic of a pluralistic democracy that accepts profound disagreement as a starting point. To the degree that Tsai asks us to search for ways we can push principled arguments forward in a manner that those who disagree with us can understand—meaning they are not always “pure”—that is all to the good in our pluralistic constitutional democracy.

George Thomas is Burnet C. Wohlford Professor of American Political Institutions at Claremont McKenna College. You can reach him by e-mail at gthomas at

[1] Yick Wo at 373-74.

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