Wednesday, January 26, 2022

Better Now Than Later

Gerard N. Magliocca

One thread of commentary in some of the popular writing about Section 3 of the Fourteenth Amendment is that challenging the eligibility of candidates is not a good idea. There might be a political backlash. Or we should just let the voters decide. 

Assessing the political implications of these lawsuits is above my pay grade. But there is a practical consideration that counsels for action now. Take Congressman Louis Gohmert, who faces allegations about his involvement in the insurrection. Gohmert is not running for reelection. He is instead running to be Texas Attorney General. But if Section Three applies to him, then he is ineligible to serve as AG.

Suppose nobody challenges Gohmert's eligibility in the GOP primary. He wins. Then nobody challenges his eligibility in the general election. He wins. Somebody will inevitably challenge his eligibility once he is the Texas Attorney General. A private party that is subject to some action by the Texas AG will attack the action on the merits but also say, in essence, that Gohmert is an imposter. (In other words, that his action is unlawful because he does not lawfully hold his post.) There are different ways of thinking through that issue, which of course came up during Reconstruction, but the point is that it'll be painful and confusing.

An eligibility challenge to a sitting official (especially for an important state executive post) creates many headaches. An eligibility challenge to a candidate, by contrast. avoids many of those problems. 


Democratic Oversight in Democracy and Executive Power

Guest Blogger

For the Balkinization symposium on Susan Rose-Ackerman, Democracy and Executive Power: Policymaking Accountability in the US, the UK, Germany, and France (Yale University Press, 2021). 

Jeff King

Democracy and Executive Power is an elegant and readable book, on a topic that is both important and neglected – accountability for executive rule-making in the modern state. 

I admire and agree with a lot in this book, whose principal conclusions and recommendations are detailed and summarised in the final chapter (esp at pp.266ff).  It affirms the necessity of executive rule-making (or what I will call delegated or secondary legislation) because primary legislation ‘cannot resolve all the important policy issues…’ (p.15).  And it rightly criticises the separation of powers idea as inapt in the modern administrative state . It is also right in identifying that there is a democratic deficit at issue in the process of delegated law-making. The question is what is to be done?

Read more »

Tuesday, January 25, 2022

The Supreme Court’s Embarrassing OSHA Decision

Andrew Koppelman

I teach constitutional law. My job is to explain to my students and to the public why courts do what they do. Last week’s Supreme Court’s decision, which blocked Biden’s mandate to protect workers from Covid, puts me in an embarrassing position.  The Court’s opinion is so poorly reasoned that I cannot explain why the Court has decided to endanger millions and kill thousands. 

I explain in a new piece at, here.

Democracy and Executive Power: Imagining Choice in Administrative Law

Guest Blogger

For the Balkinization symposium on Susan Rose-Ackerman, Democracy and Executive Power: Policymaking Accountability in the US, the UK, Germany, and France (Yale University Press, 2021). 

Liz Fisher

In 2008 the UK Government published a Code of Practice on Consultation (now superseded) for central government departments. On its cover was a picture of one bumble bee hovering above, and three bumble bees on, a flower. The picture has always made me wonder about what the flower and the bees are meant to represent. Is the flower a government department? Or are the bees? The answer depends on what you think the purpose of public participation is. If it is about information collection, then the government is probably the bees. But if you understand that consultation is about nurturing democracy and accountability then it is probably the public which are the bees. 

Underpinning Susan Rose-Ackerman’s important new book, Democracy and Executive Power: Policy Making Accountability in the US, the UK, Germany and France (Yale UP, 2021) is definitely an assumption that government departments are flowers (or at least in terms of the above analysis). She is explicit from the outset about the value of consultation and reason giving in contributing to the ‘democratic legitimacy of discretionary regulatory actions’ (p 4). Saying that might suggest that the book is an argument for a particular vision of administrative government and administrative law. It is not. Rather through a calm, measured, and thoughtful account of administrative law in the four jurisdictions listed in the title she develops ‘some basic principles of public law for democracies everywhere’ (p 12). This serves as the basis for a ‘reform agenda’ that ensures the ‘difficulties of balancing competence, public participation, and government accountability’ (p 266) are put front and centre.

Read more »

Monday, January 24, 2022

Administrative Democracy?

Guest Blogger

For the Balkinization symposium on Susan Rose-Ackerman, Democracy and Executive Power: Policymaking Accountability in the US, the UK, Germany, and France (Yale University Press, 2021).

John Ferejohn

                Democracy and Executive Power is an important study of the administrative state in advanced democracies.  It usefully contrasts practices in France, Germany and UK – all of which have long and deep experiences with public adminstration --  with those in the United States.  I think the most important contribution is her assessment of the administrative state as an essential locus of democratic deliberation.  She thinks administrative procedures must aim to integrate the exercise of delegated authority with expertise and open ended consultation with varied social interests.  While the other administrative states in her study try to reconcile the exercise of delegated authority with technical expertise, the American regulatory state is more ‘democratic’ or open to external social interests.  Rose Ackerman sees many flaws in the American approach but seems to regard the openness to external voices as something that needs to be expanded, improved, and exported to other democracies.  I am very sympathetic with this project and have defended (elsewhere) the deliberative democratic role of administrative agencies in American democracy.

                I read the book, therefore, as seeking to “democratize” administrative agencies in order to increase their capacity to make rules that are both (technically) good and legitimate (publicly acceptable). I understand the first criterion (good rules) as being in Rose-Ackerman’s terms outcome oriented whereas the legitimacy requirement is presented as a procedural criterion.  I am not convinced that it is possible to make such a clean separation between outcomes and process.  In the book, she see outcome based evaluations as external to the agency: the courts insist that agency rules comply with the the constitution for example.  Presidents have insisted repeatedly that agency rule making process should be checked by cost benefit analysis. And Congress (backed by courts) requires that the authority for agency action be found in congressional statutes (which impose both outcome and process based requirements). Of course agencies make their own internal outcome based evaluations: the FDA evaluates new drugs in terms of safety and effectiveness for example. Still, she wants to argue that outcome based evaluations are insufficient to justify agency rule making and that the use of good procedures form an independent basis of evaluation.

Rose-Ackerman rejects the idea that agencies can be restricted from making rules with the force of law by some resurrection of the delegation doctrine. Such a rehabilitation would impose arbitrary limits on agency powers and would effectively limit the capacity of Congress to make policies it decides are needed. She also rejects the idea that the legitimation of agency actions proceeds only transitively from elections through delegation and political appointment. Such a view seems both over and underinclusive in many ways. Rather she wants to see agencies as having somewhat autonomous legitimacy claims to making legislative-like rules.  Such claims, she thinks, must be grounded either on the quality of outcomes or policies, or on the procedures used by the agencies to make and revise policies.

Read more »

Sunday, January 23, 2022

Susan Rose-Ackerman’s Democracy and Executive Power: A view from France

Guest Blogger

For the Balkinization symposium on Susan Rose-Ackerman, Democracy and Executive Power: Policymaking Accountability in the US, the UK, Germany, and France (Yale University Press, 2021).

Thomas Perroud

 Susan Rose-Ackerman’s journey into  the labyrinth of executive policymaking accountability includes our joint article comparing the French and US cases. Building on our earlier collaboration and her recently published book, I reflect  here on the French case and comment on Susan’s policy recommendations. 

The book should encourage  European scholars to think about the lack of democratic input into the rulemaking process inside the executive. Indeed, the major lesson of the book lies in the gap that separates Europe from the United States as regards participation in rule-making. The line is clear: in the three European countries under study (France, Germany, the UK), mandatory participation arose as a result of EU ]environmental law and a pan-European convention dealing participation in environmental matters (the Aarhus Convention). [many US readers will not have heard of Aarhus]. In other words, there is no administrative law principle equivalent to the notice-and-comment procedure in these countries (or even in the EU for that matter). This is a puzzle that makes one want to understand the reasons for the difference. For France, Susan highlights the fact that our culture very much believes that the administration represents the general interest. The cultural power of the administration in France, imbued with the idea of public service, is extremely strong. It chokes civil society, which is certainly not as well entrenched as it is in the US.

Read more »

Friday, January 21, 2022

The Perils of Performative Politics

David Super

      We just saw the entirely predictable failure of progressives’ plan to end the filibuster and enact voting rights legislation.  Senators Manchin and Sinema have been saying for years that they opposed eliminating the filibuster and had given quite specific reasons for those views.  When forced to vote their convictions, they did so.  Nothing at all surprising there.

     The question is why we went through this performance.  Why did so many progressives insist on acting this scenario out when the path forward was so completely pre-ordained?

     At times, we have heard that it was necessary for “the Democrats” to “fight” for voting rights and other reforms blocked by the filibuster.  This argument rests on at least two highly dubious assumptions.  “The Democrats” not an ideological monolith.  Former President Trump and other forces have been rapidly pushing the Republican Party into rigid conformity, but a party seeking to unite all those opposed to Trumpism – and which still garnered just 51% of the popular vote for its candidate – will inevitably encompass a wide range of views.  At most, the call to “fight” could be read as a demand directed at the Senate Democratic leadership (and President Biden). 

     The “fight” rationale also assumes that it is only a “fight” when it involves debating and voting on the Senate floor.  Yet that is not how most politics is done; indeed, politicians typically put on a noisy show when they cannot find a path to success.  Real fighting, effectual fighting, is done in quiet conversations, in measured tones, away from the glare of publicity.  No initiative in which I have been involved has ever benefited from a floor debate; on the other hand, several promising initiatives failed when well-meaning supporters could not resist grandstanding on the Senate floor and in so doing mobilized the opposition. 

     An alternative rationale for this public exercise was that somehow it might persuade someone.  It is not entirely clear whom it was that proponents hoped to persuade:  Republican senators, the two Democratic hold-outs, voters, or someone else.  Whomever the intended audience, this was terribly naïve.  Many Members of Congress, to be sure, have quite tepid convictions on many issues.  They have learned, however, to stick to a position once taken rather than risk being portrayed as a “flip-flopper.”  And these issues are much too nuanced to have any prospect of persuading significant numbers of voters:  few voters follow these proceedings closely, fewer still are genuinely open to persuasion, and virtually none will know enough about the issues to see through the plausible-sounding arguments of the legislation’s opponents. 

     And even if none of that were true, proponents made no serious effort to persuade.  For the most part, those demanding abolition of the filibuster refused to take seriously the arguments that Senators Manchin and Sinema made for their position.  Those senators and others opposed to unilateral rules changes because the filibuster preserves major civil rights, environmental, and social legislation during periods of Republican dominance.  Filibuster opponents insisted that Republicans would surely sweep away the legislative filibuster without explaining why they did not do so in 2017-18, when it would have allowed them to repeal and replace the Affordable Care Act.  (Although the Republicans failed to get fifty votes for their repeal, without the constraints of the filibuster and reconciliation rules they surely could have included provisions to buy off at least one of their defectors.)  Eliminating the filibuster would have allowed Republicans to omit many deeply unpopular provisions from the 2017 tax law, possibly saving their House majority.  Any serious argument that the legislative filibuster is inevitably doomed needs to explain why Republicans were willing to accept major legislative defeats rather than abolish it.  Yet those blasting Senators Manchin and Sinema merely assumed, without evidence or argument, that the two senators were wrong or even foolish. 

     Proponents of abolishing the filibuster also repeatedly insisted that its primary function has been to squash civil rights legislation.  That is simply wrong.  Yes, many of the performative filibusters over the years have been in opposition to civil rights legislation.  But the filibuster’s availability also is what blocked numerous attempts to gut environmental legislation from even reaching the Senate floor during the Republican monopoly on power of 2017-18.  It is what forced President Trump to meet with Minority Leaders Schumer and Pelosi to make major concessions on appropriations bills.  It is what stopped President Trump from proposing and passing an “infrastructure” bill that would sell off the nation’s assets to his cronies at fire-sale prices.  If proponents were serious about persuasion, they would not have relied on such readily rebutted oversimplifications. 

     Yet another rationale for demanding the public performance of the past week was to force resistant senators to “put themselves on record” against this legislation.  That it did, but to what end?  Senators Manchin and Sinema had already said, with admirable clarity, that they would not support eliminating the filibuster.  They were absolutely on the record, a far cry from some slippery “swing” senators of earlier eras.  Republicans, too, were open and adamant in their opposition to this legislation. 

     One could imagine a quite different outing strategy targeted on purported moderate Republicans:  having moderate Democrats publicly invite them to negotiate bipartisan voting rights legislation and shaming them if they refuse.  This strategy has worked in the past when deftly pursued; whether today’s politics has room for that sort of subtlety is unclear.  In any event, the Republican senator most vulnerable to this approach, Sen. Susan Collins, was just re-elected.

     My suspicion is that the real reason progressive groups’ leaders pressed so hard for a public performance of positions already well-known was that they did not want to be the ones to tell their constituencies that they fervently desired, and amply justified, legislation was not going to pass.  If this is correct, it is unfortunate on many levels. 

      First, it suggests a level of estrangement between progressive leaders and the progressive base that will severely undermine the movements’ prospects of success.  Grassroots progressives are right to be suspicious of politicians’ shifting loyalties, but if they cannot communicate frankly with their own leaders, misdirected efforts and debilitating disappointment become inevitable.

     Second, and related, to maintain popular engagement with these performances, politicians and national policy advocates almost inevitably must mislead grassroots activists.  Nobody floods the Capitol switchboard with calls on an issue they understand to be dead.  Urging activists to respond on legislation that is soon shown to have already been doomed reduces the likelihood of a grassroots response when an issue really is winnable. 

     Third, this sort of public performance imposes a much more absolute finality.  The threat of forcing a public showdown can provide a bit of negotiating leverage even when the outcome of that showdown is pre-ordained.  Now that fifty-two senators have had to publicly declare themselves, they have much less to gain from even talking about any compromise.  Bipartisan voting rights legislation in this environment surely would be thin gruel indeed, but it would be more than we have any chance of getting in the foreseeable future.  Now nothing can happen this Congress, and any appeals to Republican consciences in future Congresses will have to be as different as possible from the just-defeated legislation for Republicans to be confident they will not be accused of flip-flopping. 

     More broadly, all the invective spewed against Senators Manchin and Sinema likely will make them less inclined to compromise on other important progressive priorities, such as the Build Back Better environmental and human services legislation.  It is conceivable that insisting on this week’s futile exercise doomed universal child care and pre-K subsidies, the expanded Child Tax Credit, and the many smart environmental programs that Build Back Better contains.  At a minimum, the ultimate deal on Build Back Better is now likely to be significantly worse even than what would have been available in December.

     Fourth, having gone through this exercise could leave us in the worst of all possible worlds:  it failed to dislodge the filibuster to pass today’s legislative priorities but, by forcing forty-eight Democrats to vote to gut the filibuster, it destroys their credibility in arguing for preserving the filibuster once Republicans take over.  Ironically, if the filibuster survives to give Democrats a seat at the table on appropriations, and to prevent wholesale repeal of progressive legislation, the two people progressives will have to thank are Senators Joe Manchin and Kyrsten Sinema. 

     Finally, performative exercises of this kind make President Biden and the Democratic leadership look weak and ineffectual.  The President’s credibility is a precious asset with immense value to all progressives.  Unfortunately, this is a political Tragedy of the Commons:  many progressive groups want to bludgeon the Democratic leadership to do more on their priorities, but if all groups do so the result is that all progressive priorities starve.  Once lost, a president’s credibility is extremely difficult to rebuild.  And persuading swing voters that they must turn to Republicans for strong leadership has never been more dangerous.  All the more so, of course, now that we have undermined our ability to preserve the filibuster. 


Comparative Administrative Law at its Best

Guest Blogger

For the Balkinization symposium on Susan Rose-Ackerman, Democracy and Executive Power: Policymaking Accountability in the US, the UK, Germany, and France (Yale University Press, 2021).

Matthias Ruffert

What is our aim in writing books on comparative administrative law? “Democracy and Executive Power” is what administrative law, or the major part of it, is all about, so it is the comparative method applied by Susan Rose-Ackerman that makes the difference to most (or almost all) other presentations bearing a similar title. Probably, we can think of three targets of comparative research in administrative law. The first, nearest to what comparatists do in private law, is less pertinent in the book discussed here: The creation of uniform or at least harmonized principles and rules for a newly created jurisdiction. European administrative lawyers often adopt that approach when elaborating on how EU administrative law shall be designed and applied. In a book comparing the US with the UK, France and Germany, this level of analysis must obviously be missing. Second, a comparative study can bring the discussions of one’s own administrative law and the scholarly debates around it to scholars from other jurisdictions. Third, it can make the stakeholders in one’s own jurisdiction think about alternatives, new principles or just creative scholarly approaches.

The aim of Susan Rose-Ackerman’s book is somewhere in between the two. Readers from the three European jurisdictions (or elsewhere) get helpful and deep insights into the state-of-the-art in US administrative law and are enabled to cross-check their views with what is pertinent at the other side of the Atlantic. Such explanation can be de-mystifying in eliminating misperceptions of what the American situation might be. However, as I tend to submit with some reluctance, but nevertheless with certain conviction, such use of comparative law rarely if ever is able to influence the substantive debate elsewhere. This statement points at aim number three: Writing about other jurisdictions to show what could be improved in general, or in your own. This is what makes the book so important for American readers. In this context, it is interesting to see that Rose-Ackerman’s endeavour is mirrored by a German project, similarly by a leading administrative law scholar, roughly (not exactly) of the same generation, Eberhard Schmidt Aßmann (Das Verwaltungsrecht der Vereinigten Staaten von Amerika, 2021).

Read more »

Debating abortion rights

Andrew Koppelman

On Feb. 1 at 8 pm Eastern, I will participate in an online Federalist Society debate on overturning Roe v. Wade.  (Spoiler: I think it should remain the law.)  The link is here.

Thursday, January 20, 2022

Can (and should) we take policymaking accountability to the four corners of the earth?

Guest Blogger

For the Balkinization symposium on Susan Rose-Ackerman, Democracy and Executive Power: Policymaking Accountability in the US, the UK, Germany, and France (Yale University Press, 2021).

Mariana Mota Prado 

In Democracy and Executive Power, Susan Rose-Ackerman provides a detailed analysis of delegation of rulemaking powers to executive officials. While it is not possible for legislatures to oversee all the complexities of the mammoth state apparatus that governs our societies today, she argues that the lack of accountability of these policymaking processes within the executive branch is an issue that needs to be addressed. Rose-Ackerman analyzes four countries (France, Germany, US, and UK) to ask what institutional arrangements secure (or could secure) an accountable process of administrative rulemaking. The careful selection not only reflect some of the countries that Rose-Ackerman has been studying for decades, but it also serves a very important methodological purpose: it allows for a comparison of two types of political systems, parliamentary (UK and Germany) and presidential (US and France); and of two types of legal systems, common law (UK and US) and civil law (Germany and France).

Based on this comparative analysis of executive rulemaking, she makes a positive (descriptive) and a normative claim. The positive claim is a political economy story: parliamentary systems lack the incentives that exist in presidential systems for legislatures to keep the executive in check. The normative claim is that the political dimensions of executive rulemaking need to be accountable. Yet, executive rulemaking is not purely political: these processes also involve and often require expertise. For this reason, Rose-Ackerman pushes for “more constructive forms of political accountability that also recognize the importance of technocratic analysis” (p. 146). Her proposal points to transparency, public consultation and reason giving as the three pillars that can address the democratic deficit in executive rulemaking in many countries today.

Despite being centered around these four countries, Rose-Ackerman’s claim is broader in scope, as she announces in the introduction: “the difficulties that have arisen in my case-study countries are repeated throughout the world and can provide insights that may be applicable elsewhere” (p. 9). In line with this ambition, in the concluding chapter (Chapter 8) she discusses how the book’s “perspective is relevant elsewhere, especially to countries making a transition to democracy and to middle-income countries whose governments are seeking a stronger system of public law.” (p. 244). This blogpost engages with this broader ambition, both to commend the book’s careful and constructive analysis in this regard, but also to pinpoint a few issues that seem to merit further attention.

Read more »

Balkinization Symposium on Linda Colley, The Gun, the Ship, and the Pen -- Collected Posts


Here are the collected posts for our Balkinization symposium on Linda Colley's new book, The Gun, the Ship, and the Pen: Warfare, Constitutions, and the Making of the Modern World (Liveright, 2021).

1. Jack Balkin, Introduction to the Symposium.

2. Erin F. Delaney, Of Constitutions and Constitutionalism.

3. Gerard Magliocca, The Gun is as Mighty as the Pen.

4. Sandy Levinson: An Essential Book: Linda Colley,on the origins of written constitutionalism.

5. Madhav Khlosla, Locating Constitutions in the Modern World

6. Harshan Kumarasingham, Constitutional History and the Making of the Modern World.

7. Mark Graber, Of Guns, Ships. Pens, and Liberals.

8. Linda Colley, Linda Colley Responds.

Wednesday, January 19, 2022

What Yale Law School Teaches — Inadvertently — About the Appropriate Role of Diversity Officials

Andrew Koppelman

As the bitter controversy continues over Yale Law School’s disastrous mishandling of a discrimination complaint, some have wondered whether there ought to be diversity officials at all. The mutual incomprehension among students that led to this situation actually shows that they can do valuable work — if they get it right.

In some ways, opposition to racism is baked into the modern university. Law schools like Yale, where I was a student, or Northwestern, where I teach, admit the best students they can find, regardless of race, sex, social class, or other ascribed statuses. But that egalitarian ethic has not always existed. The old hierarchies leave their mark, and members of previously excluded groups often feel that they don’t belong. If that affects their academic performance, the university’s educational mission is impaired.

Faculty should care about this experience of isolation because teaching is an exercise in rhetoric, and rhetoric has a moral dimension. It forces you to learn about your audience, to get outside your own head and into the heads of other people. Universities need to know what alienates students.  Otherwise we can’t do our jobs as effectively as we could. The alienation of minority students is a problem that needs to be addressed.

But addressing it can’t involve the embrace of any substantive orthodoxy. As the 1967 Kalven Report noted, a university “cannot insist that all of its members favor a given view of social policy,” because that means “censuring any minority who do not agree with the view adopted.” Rather, what the university can contribute to social policy is clarity, the dispelling of ignorance and confusion. That has implications for the role of diversity officers.

My point will be clearer if we consider the specifics of what happened at Yale.

I explain in a new post at Heterodox Academy, here.

The Tensions Surrounding Executive Rulemaking in Four Western Democracies

Guest Blogger

For the Balkinization symposium on Susan Rose-Ackerman, Democracy and Executive Power: Policymaking Accountability in the US, the UK, Germany, and France (Yale University Press, 2021). 

Peter Strauss

Susan Rose-Ackerman’s “Democracy and Executive Power,” is a magisterial work about executive creation and implementation in four western democracies, two presidential and two parliamentary, of public policy initiatives undertaken within statutory frameworks framing these executive tasks. Thus, its focus is on the process Americans call rulemaking (known in other systems as secondary or subsidiary legislation), the executive development of regulations to implement statutory directive.  This process is a universal necessity of governance in this complex and interdependent world. Yet it is equally necessary that it be undertaken by unelected bureaucrats, with the result, all too evident in contemporary American debates, that serious questions can be raised about its legitimacy in the face of the public’s claims for its participation and the actors’ accountability.  That is, as her title reflects, the central issue is answering the claims of democracy in relation to these actions. Legislators act after generally public debate, on public votes for which the electorate can hold them responsible.

Prof. Rose-Ackerman develops model after thoughtful and persuasive model, reflecting her background in economics and her deep understanding of executive policymaking. She is quite taken by the American process of notice-and-comment rulemaking, with its significant provisions for the public’s knowledge in advance of proposals to be acted upon, for public input then into the agency’s deliberative processes, for explanation much fuller than legislatures provide of agency reasoning in adopting a regulation, and for judicial controls considerably more demanding than apply to statutes. And she is chary, as am I, of the steady development of presidential controls tending to render the process more opaque and more subject to political capture in ways the electorate cannot well control.  The processes she finds in England, France and Germany generally lack our bureaucratic processes, but have elements – in France, for example, the training, discipline and traditions of its civil service – that tend to promote regularity compensating for issues of transparency, participation, and accountability.  Still, her general thrust is for the kinds of agency-level processes we enjoy.

Read more »

Balkinization Symposium on Susan Rose-Ackerman, Democracy and Executive Power: Policymaking Accountability in the US, the UK, Germany, and France


This week at Balkinization we are hosting a symposium on Susan Rose-Ackerman's new book, Democracy and Executive Power: Policymaking Accountability in the US, the UK, Germany, and France (Yale University Press, 2021).

We have assembled a terrific group of commentators, including John Ferejohn (NYU/Stanford), Liz Fisher (Oxford), Jeff King (UCL), Thomas Perroud (Panthéon-Assas University (Paris II), Mariana Prado (University of Toronto), Matthias Ruffert (Humboldt Universät zu Berlin), and Peter Strauss (Columbia).

At the conclusion, Susan will respond to the commentators.

Tuesday, January 18, 2022

Linda Colley responds

Guest Blogger

For the Balkinization symposium on Linda Colley, The Gun, the Ship, and the Pen: Warfare, Constitutions, and the Making of the Modern World (Liveright, 2021).

Linda Colley
Let me begin by thanking all the contributors for their learned, suggestive and generous remarks on The Gun, the Ship and the Pen. I am very grateful. I am also somewhat relieved. One of my objectives in writing this book was to advance and insist upon a series of connections, including the much closer connection that needs to exist as regards the study of constitutions between practitioners of history and those attached to other disciplines. As Harshan Kumarasingham observes, since the 1960s especially, historians have become demonstrably less interested in matters constitutional.  This book was in part an attempt to challenge and correct this. I sought at once to set out some of the reasons why these instruments have mattered so much over time – and why they are gripping - and to show how broad and imaginative historical approaches are essential for a full understanding of them. I am delighted that the legal and political scholars making up this panel reacted positively to my efforts.
Read more »

Saturday, January 15, 2022

Mark Finchem Has a Section Three Problem

Gerard N. Magliocca

(Cross-posted at PrawfsBlawg)

Mark Finchem is a state representative in Arizona. He is now running for the GOP nomination to be Arizona's Secretary of State; the official in charge of running elections. Former President Trump has endorsed Finchem's candidacy. Representative Finchem was present at the "Stop the Steal" rally on January 6th and there are allegations that was connected with some of the groups that engaged in violence on that day. He is a member of the "Oath Keepers" and recently described the 2020 election in Arizona as "rigged."

Consequently, Representative Finchem may be barred from serving as Secretary of State by Section Three of the Fourteenth Amendment. He was a state legislator on January 6th who had sworn an oath to uphold the Constitution. If he "engaged in insurrection," then Section Three bars him from serving in any state executive office. Section Three is the only federal constitutional requirement for state office.

My understanding is that any voter in Arizona may challenge the eligibility of a primary candidate for state office on the ground that he cannot lawfully hold the office for which he is running. 

Friday, January 14, 2022

L'Affaire Emory, again

Andrew Koppelman

John Wilson and I debate the recent controversy at the Emory Law Journal, here.

The Voting Rights Conundrum, Part I

Stephen Griffin


Although there may be a Senate debate, as a practical matter the effort to pass voting rights measures may be dead for now.  However, but the issues raised by the current House bill (originally two bills) will likely be with us for some time.  Regardless of what happens in the Senate, I see some problems with the way the public debate has been conducted, even among voting rights experts, and that’s my concern here.  I’ll start with Yuhal Levin’s op-ed in the New York Times, arguing that the concerns Democrats and progressives have about voting rights procedures are misplaced.  Levin points out that the process of voting, such as registration, has been generally made easier in recent years, certainly easier if our frame of reference extends back to the 1980s, before the adoption of “motor voter” legislation and early voting.  This is the perspective taken by Justice Alito’s majority opinion in Brnovich.  For his part, Levin sees the parties as focused unduly on measures to improve (or obstruct) voter turnout, which is highly unlikely to actually affect which party wins or loses.  I agree with him on this point.  As he portrays it, the parties are locked in an unproductive policy stalemate.

Unfortunately, this viewpoint leaves out one region and one group of surpassing importance to the Democratic party and, one hopes, to the nation as a whole – African Americans in the South.  Perhaps Levin is overlooking the question of race because he references the “Freedom to Vote Act”, rather than the John Lewis Voting Rights Advancement Act, the response to Shelby County and Brnovich which renews for a new era the Voting Rights Act of 1965 (VRA).  But, in fact, a number of elements in the two laws are linked in that many of the states that have enacted restrictive laws are in the South, such as Georgia, Texas, and Florida.  If Levin is suggesting that Democrats ignore the perspective of African Americans in the South, that is an obvious nonstarter.  Indeed, given the history represented by John Lewis, their perspective ought to be our perspective.

Misperceiving the relevance of race seems something of a theme in recent commentary on the proposed voting rights measures and the advocacy of the Biden administration.  Consider a recent Washington Post’s “Fact-Checker” column by Glenn Kessler.  The essential problem with the Post’s analysis is that it analyzes the administration’s statements as if the voting rights controversy began in the aftermath of the 2020 election.  But the legal reality the John Lewis Act is meant to address goes back to the aftermath of the 2013 Shelby County decision, nine years ago.  It is well documented that in the immediate aftermath of the decision, states like North Carolina and Texas passed laws that would have been subject to DOJ preclearance under the VRA and probably disapproved.  These laws were subject to litigation, like the McCrory case in North Carolina and Veasey v. Abbott in Texas in which multiple appellate courts found that state legislatures acted with a racially discriminatory purpose.  From the perspective of the advocates of the John Lewis Act, to whom President Biden was speaking in his Atlanta address, this history matters.

Read more »

The Supreme Court, vaccination and government by Fox News

Andrew Koppelman

Suppose Congress passed a law commanding the Occupational Safety and Health Administration (OSHA) to prevent deadly dangers in the workplace, and to act quickly if those dangers arise unexpectedly. And then suppose the Supreme Court declared that the bigger the emergency is, the less power OSHA has. OSHA can move fast to prevent a few bad injuries, but not if hundreds of thousands are dying.

That is, in essence, what the Supreme Court said yesterday, for reasons that threaten to merge Fox News with the US Reports.  I explain in my latest column at The Hill.

Wednesday, January 12, 2022

L’Affaire Emory

Andrew Koppelman

It is now notorious that the Emory Law Journal commissioned and then tried to censor, as “hurtful and unnecessarily divisive,” an article that denied the existence of systemic racism. When the author refused to bowdlerize his piece, the Journal rejected it. Two other contributors to the same issue withdrew their articles in protest. This has been portrayed as a familiar left/right fight, except for one detail: one of the authors who withdrew is on the left. Some have been asking, who is that guy and what was he thinking?

I’m that guy. I am urgently concerned about systemic racism, which I have written about extensively, but I withdrew to protest the illiberalism that has these student editors in its grip. That illiberalism is bad for the university and bad for racial equality. It reflects an increasingly influential conception of racial equality that is disgustingly indifferent to the welfare of the people it purports to help.  This isn’t a left/right thing.

I explain my decision in the Chronicle of Higher Education, here.

It is paywalled, but Eugene Volokh posts a longer excerpt than I'm supposed to, here.


Monday, January 10, 2022

The First Section Three Lawsuit

Gerard N. Magliocca

The suit was filed today against Congressman Madison Cawthorn of North Carolina. I have agreed to serve pro bono as an expert witness in this case if necessary.

UPDATE: I have an essay in The Washington Post commenting onsite of the broader issues raised by the cases.

Thursday, January 06, 2022

187 Minutes

Ian Ayres

As our nation confronts the first anniversary of the attack on the Capitol, we might consider a 187-minutes of silence – from 1:10 pm to 4:17 pm EST today.  This is the length of time President Trump waited after the end of his speech on the Ellipse before asking the attackers to go home. 

The attack had begun in earnest at 12:53 pm when rioters “overwhelm[ed] police along the outer perimeter west of the Capitol building, pushing aside temporary fencing.”  So our President waited 204 minutes (from 12:53 to 4:17) after the violence began before uploading a video to Twitter which included the words:

I know your pain, I know you're hurt. We had an election that was stolen from us. It was a landslide election and everyone knows it, especially the other side. But you have to go home now. We have to have peace. We have to have law and order. We have to respect our great people in law and order. We don't want anybody hurt. It's a very tough period of time. There's never been a time like this where such a thing happened where they could take it away from all of us — from me, from you, from our country. This was a fraudulent election, but we can't play into the hands of these people. We have to have peace. So go home. We love you. You're very special. You've seen what happens. You see the way others are treated that are so bad and so evil. I know how you feel, but go home, and go home in peace.”

Our President wasn’t completely Twitter silent during this 187-minute period. 

The first rioters breached the Capitol defenses and began entering the building at 2:12 pm.  Trump responded at 2:24 pm, not by asking them to “stand down, and stand by” but by posting:

Mike Pence didn't have the courage to do what should have been done to protect our Country and our Constitution, giving States a chance to certify a corrected set of facts, not the fraudulent or inaccurate ones which they were asked to previously certify. USA demands the truth!

Then at 2:38 pm, more than an hour and half the attack began, he tweeted:

Please support our Capitol Police and Law Enforcement. They are truly on the side of our Country. Stay peaceful!

The insufficiency of this tweet, which again failed to ask the rioters to leave the Capitol was immediately apparent to his son, Donald Trump Jr., who franticly texted White House Chief of Staff Mark Meadows:

            He’s got to condemn this shit ASAP. The Capitol Police tweet is not enough.

At 3:13 pm, more than two hours after the attack began, our President tweeted:

I am asking for everyone at the U.S. Capitol to remain peaceful. No violence! Remember, WE are the Party of Law & Order – respect the Law and our great men and women in Blue. Thank you!

As with his earlier tweets, Trump fails to ask the protesters to leave the Capitol. It is hard for me to fathom that for still another hour from 3:13 to 4:17, Trump maintained Twitter silence. Only then did he tweet the mixed message which simultaneously inflamed by reiterating the lie that the election was “stolen” along with the call “So go home. We love you. You're very special. You've seen what happens. You see the way others are treated that are so bad and so evil. I know how you feel, but go home, and go home in peace.”  To say that this was too little, too late does not begin to convey the dilatory scope of Trump’s failure. 

* * *

As I think back to these harrowing moments a year ago, I am filled with visceral fear that the Capitol would be burned.  Much of me wants to turn away from those memories. 

We should resist the impulse to rush to enshrining particular modes of remembrance. And I tend to favor ways of observing anniversaries of our past that allow us as a nation to move forward.  But at least for this first anniversary, we might consider meeting Trump’s past silence with silence of our own. It is difficult in our constantly-connected world for people to remain silent for even one minute, and I can’t imagine that many Americans could bring themselves to remain silent for 187 minutes. But as we watch video footage of the Capitol attack today, let us consider for at least a few moments what for so long was left unsaid.

Wednesday, January 05, 2022

Yes, Virginia, it was an insurrection

Gerard N. Magliocca

The Wall Street Journal has an editorial out today arguing that January 6th was a riot, not an insurrection. This is nonsense, but nonsense suggesting that some people now realize that the Constitution speaks to what should happen to public officials who engage in insurrection and are starting to circle the wagons. Better to call what happened a riot, a jamboree, or anything other than an insurrection.

Why does the Journal say that January 6th was not an insurrection? Because it was not an "attempted coup" or a "conspiracy to overthrow the government." The problem is that this is not the definition of an insurrection. Let's start with some state definitions:

Iowa: "An insurrection is three or more persons acting in concert and using physical violence against persons or property, with the purpose of interfering with, disrupting, or destroying the government of the state or any subdivision thereof, or to prevent any executive, legislative, or judicial officer or body from performing its lawful function."

Mississippi: “The term 'insurrection,' when used in any statute, means an armed assembly of persons having intent to resist or subvert lawful authority.”

Colorado: “Any person who, with the intent by force of arms to obstruct, retard, or resist the execution of any law of this state, engages, cooperates, or participates with any armed force or with an armed force invades any portion of this state commits insurrection.”

Next, many presidents other than Lincoln have invoked the Insurrection Act. In virtually none of those instances was there an attempted coup or a conspiracy to overthrow the government. Instead, the problem was often armed mobs that were obstructing legal process. A famous example was President Eisenhower sending troops into Little Rock in 1957.

Third, Congress defined what occurred last year as an insurrection. The article of impeachment, which was supported by a majority of the Senate, used the term. The Senate unanimously passed (and over 400 House members adopted) a resolution awarding medals to Capitol Police officers who provided protection against the "mob of insurrectionists." It's awfully hard to have insurrectionists without an insurrection. 

Finally, Madison's Federalist #10 is subtitled "The Union as a Safeguard Against Domestic Faction and Insurrection." He wasn't talking about attempted coups or a conspiracy to overthrow the government.

Revisionism done well is vital in seeking the truth. Revisionism done badly is a whitewash. 

January 6th as a Constitutional Crisis


Over a decade ago, in a more innocent time, Sandy Levinson and I developed a definition and typology of constitutional crises. Essentially, constitutional crises occur when the Constitution is no longer able to keep struggles for power within the boundaries of the Constitution. In other words, constitutional crises occur when the Constitution fails at its central task of keeping struggles for power within the legal boundaries of politics that the Constitution creates and maintains.

Read more »

Covid and OSHA’s emergency powers

Andrew Koppelman

For many purposes—notably, responding to a pandemic—a strong federal government is right handy. But for more than 200 years, some Americans, thinking that they were promoting personal liberty, have tried to persuade the Supreme Court to interpret federal law in a way that would hobble the government. It is happening again with Covid-19. And once again the argument focuses on a technical legal question about the meaning of the word necessary. The court gave the right answer in 1819. If it gets it wrong this time, thousands will die.

This Friday, the court will hear oral arguments in legal challenges to two of President Biden’s Covid vaccine mandates. One of those rules governs medium-size and large workplaces; the other focuses on health care workers. In both, the court must decide whether the rules are authorized by the relevant federal statutes. The challenges are legally weak, but the court may not see it that way. A faction led by Justice Neil Gorsuch has been shockingly cavalier about the dangers of vaccine resistance—and there’s one particularly bad argument that is likely to tempt Gorsuch’s cohort.

I explain in a new piece in The New Republic, here.

Sunday, January 02, 2022

Libertarianism, Covid, and the Supreme Court

Andrew Koppelman


The Supreme Court will hear argument on the Biden vaccine mandates on Friday, Jan. 7.  Officially, the cases are about questions of federal power, administrative law, and the capacity of Congress to delegate authority to agencies.  But what is fundamentally driving the litigation is the libertarian myth – one that may be embraced by the new conservative Supreme Court majority - that freedom can be promoted by hamstringing the capacities of government.

I explain in my latest column at The Hill, here.

Reflections on January 6th and What's Coming Next

Gerard N. Magliocca

On the night of January 6th, I wrote the following post on this blog:

I find very interesting the use of the word "insurrection" to describe what occurred today at the Capitol. For example, Senator Romney issued a statement stating that today was "an insurrection, incited by the President of the United States." Senator McConnell described today as a "failed insurrection."

If so, then Section Three of the Fourteenth Amendment might apply to President Trump. People who "having previously taken an oath . . . as an officer of the United States . . . to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same" are ineligible to serve in a variety of federal and state offices. If President Trump is "an officer of the United States" and he did incite an insurrection against the United States, then he might well be ineligible under Section Three. . . .

In the weeks following January 6th, I wrote a series of posts and other short pieces arguing that Congress should respond by passing a non-binding resolution declaring President Trump ineligible to serve again as President and enacting Section Three enforcement legislation that would lay out an orderly process and clear standards for the federal courts to make ineligibility determinations with respect to Trump or anyone else. Of course, Congress did not take my advice. Maybe the January 6th Committee will take up the issue (and I hope that they do), but even then action from Congress is unlikely.

In the absence of congressional action, we face an upside-down application of Section Three. Lawsuits will almost certainly begin this year challenging the ballot eligibility of members of Congress who were allegedly involved in January 6th. Thus, state election officials and state courts will be forced to take the lead in deciding whether an attack on the national legislature triggers Section Three of the Fourteenth Amendment. If that sounds backwards, that's because it is. The structure and history of Section Three assumes Congress and the federal government will take the leading role in determining ineligibility. A state-centered process will be confusing due to the vagaries of state election law, partisan bias in some states, and the rapid timetable under which these cases must be decided. State primaries have fixed dates. Only a few months will pass between the initial suits and their final determination, which does not bode well for reasoned judgments in the states or in the Supreme Court. It won't be pretty. 

My final thought is that the legal and academic community is whistling past the graveyard by not giving more attention to Section Three as applied to the 2022 and 2024 elections. Perhaps this reflects a desire to avoid thinking about the implications of Donald Trump's comeback campaign. But Trump and the rest of the country are on a collision course with Section Three. It's just a matter of time. 

Thursday, December 30, 2021

Autre Temps, Même Moeurs? Emergency Stay Practice in the 1960s and Today

Mark Tushnet


I’ve been reading some of the books about civil rights history that I’d accumulated in my office, now shipped to my house. I’d read most in manuscript, but it’s instructive to read the final versions as something like a unit.


In reading Anne Emanuel’s interesting biography of Judge Elbert Parr Tuttle, I was struck by some similarities between the emergency motions practice in the Fifth Circuit during the era of desegregation litigation and current emergency motions practice (mostly in the Supreme Court but to some extent in lower courts). Judge Tuttle and his pro-Brown colleagues often had to deal with obstructionist tactics by district court judges. Emanuel shows how they engaged in what can fairly be called creative interpretations of their statutory authority to issue stays – the most creativity being exercised in connection with stays issued by individual judges (so that they didn’t have to take the time to convene a panel, which might include circuit judges less supportive than they of Brown). She also describes some occasional careful judge-shopping by civil rights plaintiffs (it had to be occasional because in the deep South there weren’t many district court judges who were firmly committed to Brown and its implications).


And there were departures from norms of judicial administration: Judge Tuttle refused to assign segregationist judge Ben Cameron of Mississippi to three-judge courts dealing with Mississippi “race” statutes (as they were described then), contrary to the norm that the circuit judge assigned to a three-judge court would be from the state whose statute was being challenged. Emanuel also describes a brouhaha about how panels in civil rights cases were composed, by judge John R. Brown, in which Brown was charged with manipulating panel assignments to ensure that the panels would come to the “right” – that is, pro-desegregation – decision. The evidence is that Brown did some minor manipulations but that mostly he took advantage of neutral reasons – one judge was getting old and was chronically ill making travel difficult, another didn’t like to travel away from his home base – to assemble “good” panels. I note that in all this Griffin Bell doesn’t come off at all well.


All this was at the circuit level, with the Supreme Court weighing in through per curiam decisions on the merits and granting or denying stays summarily. Today the issues arise mostly at the Supreme Court level, though judge-shopping is common and some of the stay practices at the circuit courts have been controversial. (For me, maybe the most dramatic difference is technological: Lawyers had to have their papers physically typed and sent by car or plane to distant courthouses, rather than filed electronically.)


The similarities, though, are also striking. Then and now the emergency practice seems strongly result-driven, in the sense that judges interpret their procedural authority creatively, seemingly so that they can reach the substantive results they want to reach.


A couple of observations: (1) In neither period, it seems to me, was the judges’ procedural creativity out of bounds (that is, the judges then and now haven’t adopted plainly unreasonable readings of their procedural authority).


(2) There’s a subjective and an objective account of the phenomenon I’ve described: The subjective one is that judges who believe that the stakes are quite high are going to be creative if they need to be. The objective one is that when the stakes are high and lower court judges don’t fully understand that they are, appellate court judges should be creative. I have a pretty strong sense that today’s disagreements about the emergency stay practice are structured around disagreements about whether the conditions for creativity set out in the objective account are present.

Monday, December 20, 2021

Temporality and Case-Based Constitutional Theory

Mark Tushnet

Catching up on my reading after my “to read” books arrived from Cambridge (after eighteen months of loneliness there), I was struck by some features of the constitutional theory books I had.


I distinguish among three types of constitutional theory. (1) Foundational constitutional theory asks questions about such matters as the relation between a people and a state, the nature of legislative and executive power, what a constitution does, and – sometimes – the minimal substantive content of any normatively attractive constitution. This sort of theory is fundamentally an exercise in political theory of a particular sort and draws upon literature in political theory often written by political scientists and philosophers.


(2) Legal-realist constitutional theory is about what the Supreme Court is going to do in the near term. It focuses on the Court’s personnel and its location in the writer’s political time and space. The content of legal-realist constitutional theory changes every time a justice leaves the Court and a new one arrives. (I was told that when Charles Alan Wright taught a seminar on pending Supreme Court cases, he had files on each sitting justice to use in developing his accounts of what the Court would do and that when a justice left the Court Wright threw out the files as no longer relevant. If that story’s true, it confirms Wright’s place is the universe of legal realists [which I think is accurate with respect to his work generally].)


(3) Case-based constitutional theory attempts to construct a normatively attractive account of the law as it is – that, attempts to arrange constitutional cases in a framework that makes sense and seems if not completely satisfactory at least normatively acceptable. This is the domain of doctrinal law professors, the best of whom (say, Laurence Tribe and Richard Fallon) are spectacularly good at it. (Political scientists sometimes try to do doctrinal analysis, but typically – and fortunately – only in relatively limited domains [“fortunately,” because political scientists, even those with law degrees, are, again typically, rather wooden in how they work with doctrine; they, again typically, can gain some facility with the cases in some well-defined domain, but rarely have the scope that the best doctrinal law professors do].)


Case-based constitutional theory is in an important sense a-temporal. Every not-overruled case is part of the set of cases that are to be used in developing the framework. Older cases might have somewhat less weight than more recent ones to the extent that they rest on assumptions about the surrounding social circumstances (and the like), which might have changed, but they always retain some precedential value, and can be retrieved and relied on as heavily as more recent ones when doing so allows the theorist to create a more attractive framework. (In my experience Tribe is the master of this technique.)


At the same time the best case-based theorists know that the substance of constitutional law changes. And sometimes the changes are substantial enough to require a substantial alteration in the framework that is the theory’s goal. Minor changes can be dealt with easily; they are like renovations of the interior of a university library made (by the designers) to make the users’ experience better even though in the eyes of some they reduce the library’s usefulness. Some more substantial changes can also be accommodated, as if – to continue the metaphor – a new annex has been bult for the library, but in a style the designers believe compatible with the original. And here too there might be a gap between the designers’ view of compatibility and the theorists’: Think of something like a Frank Gehry annex to a classical-form library; the designers will surely have a story about why the annex is indeed compatible with the original.


Sometimes, though, the changes are even more substantial – as if the library has been torn down and rebuilt from the ground up. (I personally think of these as changes that accompany shifts from one constitutional regime to another, but you don’t have to accept that account to understand the point.) And this poses a problem for case-based constitutional theory because many prior cases won’t be overruled – case-based theories can deal with that – but will simply be abandoned or forgotten.


The problem runs deeper, and it seems to me evident in a number of the works in case-based theory that I’ve read recently. Sometimes you don’t know whether a decision that doesn’t fit comfortably into the framework you’ve developed is a minor renovation or the first (or second, or …) step in tearing the old library down. Because, as Justice Souter once put it, individual cases don’t announce that they are about to work a transformation in the framework, but eventually “we know what happened.”


Here too the best case-based theorists understand the difficulty when it confronts them. (Again to revert to my own account, the difficulty arises most pressingly in periods I call interregnums between constitutional regimes, which in recent experience have last as long as a decade or so.) At those times the best works in case-based constitutional theory display some ambivalence about the entire enterprise, which from the outside might look a bit as if they are taking a stance of ironically distancing themselves from their own work (though from the inside it surely doesn’t seem to be that). Or, as with Tribe’s “suspension” (now, I think we can say, abandonment) of his work on his constitutional law treatise, the case-based theorist can give up on the enterprise and become something else.


I close with a cynical observation, that a fair amount of case-based constitutional theory doesn’t approach the sophistication of the best works. Observing renovations/replacement in progress, the case-based theorist rages against the dying of the light – which to me makes that work substantially less interesting than that of the best case-based theorists.


[If I had the intellectual energy to do it, this blog post would be the germ of a law review article, but I don’t and it won’t.]

Sunday, December 19, 2021

Give Me Liberty and Give You Death

Andrew Koppelman

You can rarely be sure that judicial incompetence will kill people, but Federal District Judge Terry Doughty crossed that line when he issued an injunction blocking the Biden Administration’s requirement that nursing home personnel be vaccinated for Covid.  (The injunction, which the Administration is appealing, has since been modified by a higher court to apply only in the 14 states that sued.)  This week, Supreme Court Justice Neil Gorsuch produced something worse than incompetence.

I explain in a new column at The Hill, here.


A Covert Constitutional Revolution? Is Basic Law: Israel--the Nation-State of the Jewish People Democratic?

Guest Blogger

Rivka Weill

The Short Answer – It wasn't, now it is…In the process, the Court has adopted and applied the unconstitutional constitutional amendment doctrine without acknowledging it.

Read more »

Saturday, December 18, 2021

What the Senate Parliamentarian Could Learn from Justice Scalia

David Super

      Late Thursday, Senate Parliamentarian Elizabeth MacDonough rejected Democrats’ third proposal to include relief for undocumented immigrants in the pending Build Back Better reconciliation bill.  Specifically, she ruled that these provisions violate section 313(b)(1)(D) of the Congressional Budget Act, which allows a point of order to be raised against a provision “if it produces changes in outlays or revenues which are merely incidental to the non-budgetary components of the provision”.  This was the same basis on which she rejected the Democrats’ two previous proposals. 

     All three of these invocations of the “merely incidental” rule are strange because the various immigration provisions that have been proposed for inclusion have been estimated to cost tens of billions of dollars.  (Once legalized, immigrants will be able to apply for benefits such as Social Security that their taxes have long supported.  Immigrants also will apply for refunds when their taxes are over-withheld.)  The “merely incidental” rule’s primary function is to prevent senators from inserting some token fines or salary money into a revision of a regulatory scheme having little to do with fiscal policy:  it says you cannot rewrite telecom policy on reconciliation just by charging the big carrier a few dollars. 

     The Parliamentarian justifies her ruling against legalization of undocumented by saying that she believes sponsors’ purposes are primarily non-fiscal even if the language and effect of the provision is quite large.  Taken seriously, this standard has serious problems.  Virtually nothing in this reconciliation bill, in the 2017 tax cut reconciliation bill, or in any reconciliation bill that increases the deficit has a primarily fiscal motivation.  The sponsors of provisions increasing food assistance are not trying to drive up the deficit:  they are trying to feed people, with the increase in the deficit an undesired but acceptable consequence.  The sponsors of the tax cut provisions in the 2017 reconciliation bill did not seek to increase the deficit – indeed, they claimed that dynamic effects would prevent that from happening – they were trying to lower taxes for corporations and the affluent.  Perhaps some Keynesian stimulus measures genuinely seek to increase the deficit, but even then senators emphasize the benefits to the direct recipients. 

     Thus, if applied consistently, the Parliamentarian’s rationale would deny reconciliation protection for measures that increase the deficit.  That might not be bad policy, but previous parliamentarians rejected that interpretation of the Congressional Budget Act when they allowed massive unfunded tax cuts to pass through reconciliation in 2001 and 2003.  Parliamentarian MacDonough followed their precedent in 2017.

     The “merely incidental” rule has not been consistently tied to sponsors’ purposes.  Even if the Parliamentarian was writing on a clean slate, a purposivist standard for interpreting the “merely incidental” rule would be a serious mistake.  Here, she could learn two important points from judicial approaches to statutory interpretation. 

     First, as Justice Scalia notes in A Matter of Interpretation, purpose is almost never unitary.  Some of the immigration provisions’ sponsors likely have primarily non-fiscal purposes, but others just as surely are driven by the desire to have the government stop further impoverishing immigrant communities by collecting, or over-collecting, taxes from them while denying them the benefits those taxes fund.  The Parliamentarian has no possible way of knowing which purpose predominates among supporters or, indeed, which purpose drives any given senator.  Surely an identical provision cannot be “merely incidental” when offered by a civil rights-oriented senator but permissible when offered by one with a redistributive (i.e., fiscal) motivation.  Even on the much more copious record available once a bill has been enacted into law, Justice Scalia warns that divining a unitary or even predominant congressional purpose is a fool’s errand.

     Second, when interpreting statutes – which is what the Parliamentarian is doing when she applies section 313(b)(1)(D) – courts commonly employ a super-strong form of stare decisis.  Because Congress can readily amend a statute that it believes the courts are misapplying, the value of consistency in application supersedes the importance of reaching what the current adjudicator believes is the “best” interpretation.  This is all the more true when interpreting the Congressional Budget Act, which governs repeat players who alternate between the sponsor’s and objector’s roles. 

     Thus, even if the Parliamentarian believes that purposivism is the best method for applying the “merely incidental” rule, consistency is more important.  During consideration of the 2017 tax cut reconciliation bill, the Parliamentarian ruled that Republicans could include a measure opening the sensitive Alaska National Wildlife Refuge to drilling.  The fiscal impact of that provision was much smaller than that of the current immigration changes, and it obviously was motivated by the desire to resolve a question of environmental regulation in favor of the oil companies rather than bring in revenues.  Yet she did not attempt a purposivist analysis of that provision shoe-horned into legislation otherwise uninterested in federal lands.  People who know her tell me she now regrets that decision, but she made it, and as a result that provision is now law.  Whatever the merits of a consistent purposivist approach, an episodic one is both unjust and unhelpful to building respect for the Senate’s procedural traditions and the Parliamentarian’s office.  Even if her decision on the Wildlife Refuge was a mistake, she now should continue making similar “mistakes” and allow Congress to enact a correction if it disagrees. 

     Some are calling for circumventing the Parliamentarian.  In theory, this could be done by having the presiding officer – Vice President Harris or a Democratic senator – overrule a point of order against the immigration provisions of the reconciliation bill notwithstanding the Parliamentarian’s advice. Formally, the power to make these rulings resides in the presiding officer, not the parliamentarian. 

     This would, however, be a radical break from longstanding Senate procedure where knowledge of parliamentary procedure has been considered irrelevant to serving as presiding officer because the real decisions are made by the parliamentarian.  It would effectively obliterate all Senate rules as it would empower the majority party, or the vice president, to ignore those rules at will.  Although the case against the Parliamentarian’s rejection of the immigration proposals is strong, one can readily imagine future Republican presiding officers making completely nonsensical rulings to evade rules that have gotten in their way.  An electorate that was mostly oblivious to Senator McConnell and President Trump packing the Supreme Court would surely not punish these far more nuanced transgressions. 

     Democrats also could circumvent this ruling by firing Elizabeth MacDonough and appointing a new parliamentarian inclined to overrule the point of order.  Because the merits of this ruling are so dubious, Democrats would have little trouble finding a credible replacement who would wholeheartedly agree with their position.  Moreover, precedent exists for such a move:  Republicans once fired a parliamentarian whom they themselves had installed for showing too much independence. 

     This, too, would rapidly result in a lawless Senate.  Firing the parliamentarian felt sufficiently transgressive in 2001 that Republicans felt obliged to reinstall the previous parliamentarian, who had originally been installed by Democrats and who was emphatically not a hack.  If Democrats fire Parliamentarian MacDonough, one can be confident that, no matter how competent her replacement may be, the next Republican majority will install a Sidney Powell clone to replace that person.  Democrats rightly criticized Trump Administration officials, such as former Attorney General William Barr, for focusing their loyalty on their party rather than their country.  We do not need a proliferation of partisan hacks in positions charged with exercising impartial judgment to uphold systemic values.  Parliamentarian MacDonough is wrong in this ruling, but there is absolutely no reason to believe her rulings are anything but sincere.

     Remarkably, some progressives are using this ruling as further justification for eliminating the filibuster.  With an assertive right-wing supermajority on the Supreme Court, strong indications that gerrymandering will put the House of Representatives in Republican hands for most of the coming decade, and polls suggesting that Democrats’ Senate majority and control of the White House are in grave danger, the filibuster may soon be all that prevents the wholesale gutting of almost a century of social progress.  Senator McConnell repeatedly showed his commitment to the filibuster for legislation even when he controlled the Senate and major pieces of the Republican agenda were at stake.  But if Democrats tamper with the filibuster now, Senator McConnell will have neither reason to preserve it nor, likely, the ability to persuade his caucus to do so. 

     If Democrats gut Senate rules now, whether by ignoring the Parliamentarian, sacking her, or curtailing the filibuster, no group will be more vulnerable than immigrants.  The many victories immigrants’ advocates had against the Trump Administration’s anti-immigrant initiatives overwhelmingly relied on statutes that Republicans could easily gut were it not for the filibuster and limitations on the content of reconciliation bills.  This Supreme Court is certainly not going to be extending new constitutional rights to immigrants:  very much to the contrary. 

     And even if the Democratic leadership was short-sighted enough to be willing to incur these huge long-term costs to enact a path to citizenship, the simple fact is that these tactics just would not work.  For this provision, or any other, to make it into law, it must pass three distinct hurdles:  (1) it must be included in the package Senate Majority Leader Schumer brings to the floor; (2) it must survive any points of order that may be raised against it; and (3) it must not be stricken by a Republican floor amendment.  The parliamentary struggles have dominated public attention, but even before the Parliamentarian ruled the first time some moderate and conservative Democrats were expressing opposition to including a path to citizenship in Build Back Better.  If the Democrats were to bypass the Parliamentarian, those senators would be even less likely to agree to include the path to citizenship in the base package and would be all-but-certain to support a Republican amendment to strike it.  The moderate and conservative Democrats have made clear that they see themselves as guardians of Senate traditions; they surely will not abandon those beliefs for a provision they do not like in the first place. 

     Out of all the crucial reforms in Build Back Better, the one I care most about is the path to citizenship.  I value it even more than the Child Tax Credit’s expansion (which involves much more money), more than universal pre-K (an provision I worked on significantly), and more than the improvements to food assistance programs that have been central to my professional career.  Since the outset of the pandemic, I have spent far more time on immigration issues than on any others. 

     It therefore pains me greatly to say this, but a path to citizenship will not be in Build Back Better.  Because the Parliamentarian is focused on provisions’ purposes rather than their particular content, no redraft is likely to change the outcome.  And even if it could, the moderate and conservative Democrats will not walk the plank politically to vote down a Republican amendment to strike it.  The longer Build Back Better is delayed in search of a magic elixir that could allow the path to citizenship to advance, the more the other provisions of that package will be endangered.  And, ultimately, further delay may jeopardize the legislation itself.  This battle was lost not so much when the Parliamentarian ruled as when Democrats failed to take the Maine and North Carolina Senate seats in 2020, failed to preserve more of the moderate senators up for re-election in 2018, and failed to win the Pennsylvania and Wisconsin Senate races in 2016.  No parliamentary gimmicks can patch those fundamental political failures. 


Older Posts