Balkinization  

Friday, December 14, 2018

Happy Bill of Rights Day

Gerard N. Magliocca

Tomorrow is Bill of Rights Day, and in honor of that anniversary I want to quote from the speech that President Bush 41 gave to mark the bicentennial of the Bill of Rights in 1991. This speech captures the essence of the late President:

“The genius of the Bill of Rights is that it limits its attention to truly important things and to things over which a must and limited government can exercise some actual control. Two centuries ago, just as now, politics tempted some to take flight from moderation and realism. Edmund Burke complained at the time of those who ‘are so taken up with their theories about the rights of man that they have totally forgotten his nature’

“The framers, however, were practical men.  They gave us not a declaration of rights but a Bill of Rights, not a piece of propaganda but a set of legally enforceable constraints on government. Most important, they drafted a Bill of Rights that reflected the higher nature and the aspirations of the American people, a bill that grew out of the American character . . .”





Tuesday, December 11, 2018

The Curative Power of Law and Political Economy

Guest Blogger

Amy Kapczynski

Ask not for whom the First Amendment tolls: It tolls for you.  Or so I argue in an essay just published at the Columbia Law Review online.  It’s called “The Lochnerized First Amendment and the FDA: Toward a More Democratic Political Economy” -- a boring title for a vital and urgent problem.  Courts, speaking in the name of the First Amendment, are “freeing” us from regulatory approaches that have worked for decades to protect us from snake oil and inform us about the products we put in our bodies. How did we arrive here? And how might demo­cratic prerogatives over the webs of commodity exchange upon which our lives depend?  The essay addresses these questions, trying along the way to model how law and political economy analysis can contribute to our understanding.

The FDA is a key accomplishment of both the Progressive Era and the New Deal and perhaps the most muscular of all federal agencies. It regulates one-fifth of the consumer economy, and has enjoyed extraordinarily high levels of influence and public trust throughout its long history.  This popularity may have something to do with the fact that the FDA gained its powers through successive waves of democratic demand for its intervention when “free markets” proved deadly.  (If you don’t know the story of thalidomide, which left a trail of destruction around the world in the 1950s and 1960s, here is a vivid introduction). Perhaps unsurprisingly, the FDA has also been a prime target of neoliberals, who resent its extensive powers.  Industry lobbying and sustained criticism from Chicago-school types and have had an impact; several recent laws have weakened the agency.  But the respect and support the FDA commands have made legislative assaults challenging.  Perhaps that is why industry – and industry funded groups – have invested in the use of the courts to attack its power.

What does that attack look like?  The cases are astonishing.  Some suggest that drug companies have a free speech right to market drugs for unproven uses.  These threaten the system that the FDA has used for decades to develop the evidence we need to understand whether drugs work.  Nonetheless, citing these cases, the FDA appears poised to substantially deregulate drug marketing.  New commercial speech doctrine may also be the demise of a law passed recently to protect consumers from misleading claims about supposedly low-risk tobacco products.   E-cigarette companies (mostly backed, apparently, by big tobacco) argue that Congress doesn’t have the power to force them to validate claims that their products are low risk, though we know relatively little about their long-term implications.

The logic of these cases could go quite a bit further, even undermining the FDA’s ability to regulate medicines and tobacco altogether.  I don’t spell out the many possible implications for food, supplements, and cosmetics, but you can read between the lines.

How did this happen?  Here’s where law and political economy offers important insights. If we read the cases that build this new commercial speech doctrine, cases like Virginia Pharmacy and IMS v. Sorrell, with the literature on neoliberalism in mind, we see that they have been deeply shaped by market supremacist thinking. They mobilize images of markets, subjects, and the state that are not only contestable, but deeply undemocratic. 

How we might we best respond to this new and rather ghoulish First Amendment?  There are some excellent doctrinal arguments that could bring the courts back from the brink, as I describe in the essay.  Importantly, though, these cases should also cause us to rethink our needs for public infrastructure.  If courts thrust us into a world with more limited authority over private markets, we must envision a much more substantial role for the public—in this case, for example, by expanding public funding for health research. This approach would sidestep recent court decisions in addition to having far-reaching benefits for health democracy or health justice. It is also an instance of a broader point. By undermining public-oriented regulation of private companies, the advance of market supremacy inside of constitutional doctrine paradoxically pushes the campaign for democratic control up a level.  New public infrastructure that displaces or routes around an increasingly ungovernable private sector would, in addition to cutting out the profit-oriented middleman, more easily brush off a Lochnerized First Amendment.  The parallels to Medicare For All – spurred on by attacks to the ACA – are easy to see.

The piece was a response to the superb conference and volume on “Free Expression in an Age of Inequality” put on recently by Columbia Law School, Columbia Law Review, and the Knight Institute.  If you’ve read this far, you’re incurable, and you should also check out the other pieces published as part of the symposium, especially Jed Purdy’s “The Bosses Constitution.”  People often ask me for work describing how to “do LPE.”  These two pieces provide possible examples.

Crossposted at Law and Political Economy

Amy Kapczynski is Professor of Law at Yale Law School. You can reach her by e-mail at amy.kapczynski at yale.edu


Monday, December 10, 2018

Brexit is Prohibition

Gerard N. Magliocca

I wonder whether Brexit is Britain's Prohibition. By that I mean that any nation can back a major change with the best of intentions only to learn from experience that the decision was flawed. The only solution, in the end, is a reversal of that decision by the same constitutional process. There is a difference in that Parliament is not legally obligated by the 2016 referendum to leave the EU, but in practice the withdrawal decision cannot be undone without a second referendum.

Prohibition was a disaster, but Brexit shows that no constitutional system is immune from them.

Wednesday, December 05, 2018

CFP--Conference on Constitutional History: Comparative Perspectives

Jason Mazzone

A reminder of the call for papers for the conference on Constitutional History: Comparative Perspectives in Chicago on April 29-30, 2019. Proposals submitted by December 15 will receive priority consideration. Full details are here.

Tuesday, December 04, 2018

What’s Really Wrong with the Census

Guest Blogger

Susan Rose-Ackerman and Lena Riemer

The 2020 Census questionnaire is before the federal courts. Commerce Secretary Wilbur Ross ordered the Bureau of the Census to include a question on citizenship status that is subject to judicial challenge. In the first case to reach the trial stage, the US Southern District Court in New York has completed oral hearings. Its holding is expected to generate appeals, and, indeed, the Supreme Court has already agreed to hear one challenge. The cases are occurring within a tight time frame—the final text of the questionnaire must be settled by early summer. At issue is the claim that the head count will be inaccurate.

The decennial census is one of the Constitution’s few substantive mandates (Art. 1, sec. 2, Clause 3). The count is of “persons”, not adults or citizens or voters. Accuracy is the underlying goal of the census requirement because each state’s representation in the House and in the Electoral Collate depends on the accuracy of the census—as does the distribution of federal funds under many programs.[1] In the twenty-first century accuracy requires modern statistical techniques, including sampling and adequate pre-testing of questions. 

In the service of accuracy, statistical theory and practice have developed massively since 1868 when Section 2 of the Fourteenth Amendment removed the 3/5 weight on slaves in the original text and required a count of “whole persons”. Applying the “original’ understanding of statistics in 1789 or even after the Civil War is inconsistent with the original and present-day goal of an accurate count.
The Census Act accepts the value of sampling and states that the Bureau “shall” use sampling everywhere other than for the purposes of reapportionment.[2] The Supreme Court in 1999 read the statute as disallowing sampling for the census but did not reach the constitutional issue.[3] In 2002 the Court permitted a technique called “hot induction” to estimate missing census data because it did not involve a survey.[4] Thus, the case law suggests that the Supreme Court is not hostile to statistics per se, but has, so far, not reached the constitutional issue. Justice Stevens’ dissent in 1999, however, comes close:

Since it is perfectly clear that the use of sampling will make the census more accurate than an admittedly futile attempt to count every individual by personal inspection, interview, or written interrogatory, the proposed [sampling] method is a legitimate means of making the “actual enumeration” that the Constitution commands.

Sampling techniques are sophisticated and widely used in business, academic, and government applications. The Census Bureau uses statistical sampling to estimate key measures such as the unemployment rate, which has been based on sampling since 1937.[5] Sometimes sampling is a cost-saving measure, but in other contexts it is more accurate than counting one-by-one. Yet, direct counts have a certain intuitive appeal. You point to a small pile of apples and ask your friend how many apples are in the pile. Your friend guesses “eight”. You count the apples and discover that there are actually nine. Clearly, the count is more accurate than your friend’s guess. But the superiority of a direct count evaporates as the number counted increases and if the subjects have minds of their own. People are not apples. If you take a census of human beings, their personal characteristics may affect their answers and their willingness to participate. Some may refuse to participate. This refusal could arise from a concern for personal privacy or from an unwillingness to reveal negative information.

Read more »

Wednesday, November 28, 2018

Fiscal Policy after the Mid-term Elections

David Super


      The mid-term elections changed many things in Washington.  The full implications will not be apparent until the major players – the House and Senate Republican Caucuses, the House and Senate Democratic Caucuses, and the President – settle on their agendas.  We can anticipate a bit more about fiscal policy, however, because existing substantive and procedural rules dictate much of the agenda without regard to the wishes of the partisan actors.  This is the second of two posts about the mid-term elections’ procedural implications. 

     The first impacts are being felt already, even before the new Congress convenes.  Well in advance of the election, Congress passed and the President signed five of the twelve appropriations bills that together fund the vast majority of government functions.  In a striking departure from prior practice, Democrats insisted on moving bills containing their priorities, particularly the bill funding the Departments of Labor, Health and Human Services, and Education, apace with Republican priorities, such as the Department of Defense.  This changes the stakes in a potential government shutdown. 

     Of the seven appropriations bills remaining to be passed those for Agriculture and for the Departments of Transportation and Housing and Urban Development have been agreed to privately and are not controversial.  The bill for the Interior Department has been controversial because of non-financial riders that have been attached to it, largely on environmental matters.  The bill for Financial Services and General Government has been stuck due to battles over raises for federal workers and some attempted Republican budget gimmickry.  With the election over, the disputes on these bills seem likely to resolve quickly. 

     That leaves the bills for Homeland Security (controversial because of the President’s proposed border wall and other immigration-related matters), for Commerce, Justice, and Science (controversial because it contains funding for Robert Mueller’s investigation), and for the Department of State and Foreign Operations (long controversial for many Russia-related reasons and now perhaps because of concerns about Saudi Arabia and our role supporting the slaughter in Yemen). 

     The President lately has seemed to signal that he does not expect to get much funding for wall.  His removal of Attorney General Sessions gives the President more direct leverage on the Mueller investigation, potentially removing that issue from the appropriations struggle.  If these matters get resolved, Congress likely can avoid a partial government shutdown.  The continuing resolution that is funding the agencies under these seven bills expires December 7, and appropriators likely will need an extra week to finish up, but unless the President suddenly reverses course appropriations for the current fiscal year should be completed by the middle of December.  House Republicans are especially eager to finish and leave town because, as the beginning of the new Congress approaches, departing Members begin to have to give up their office space to their newly-elected replacements, making the logistics of being in session progressively more uncomfortable.  The fact that the remaining bills cover a mix of Democratic and Republican priorities also has made a partial shutdown less attractive.

     In the new year, Congress is likely to face four sets of important fiscal issues. 

     First, Congress will have to address the nagging problem of sequestration.  Under the budget legislation congressional Republicans forced President Obama to sign as the price for raising the debt limit, discretionary appropriations – appropriations for everything other than “direct spending” programs such as Social Security and Medicare – are capped at levels far below historical spending.  Most experts across the political spectrum believe that the federal government cannot operate at the sequestration level without either a serious degradation in services that the public expects or a fundamental reduction in the federal government’s role. 

     For the past several years, Congress’s solution has been to enact two-year deals that raise the statutory caps on discretionary spending and offset the costs through cuts in entitlements, often permanent ones.  With half of the cap increases going to military spending, Democrats have found these deals distasteful.  But with the political difficulty of denying the Defense Department what it desires – either through the regular appropriations process or through “emergency” supplemental appropriations – tying these defense increases to domestic ones has seemed the most that could be achieved.  After Republicans diverted much of the money from the first of these two-year deals into their own priorities, Democrats have taken to pre-negotiating, sometimes in considerable detail, how domestic discretionary funding will be allocated before agreeing to cap adjustment legislation. 

     Without an increase in the discretionary caps, Congress will have to cut appropriations $300 billion below the level required to continue current government operations, with the reduction theoretically divided about equally between defense and non-defense accounts.  No one believes that appropriations bills with cuts of that magnitude could pass Congress.  Yet if Congress does not enact legislation adjusting the caps, the failure to make those cuts legislatively will result in a new sequester – across-the-board budget cut – to make up the difference.

     Second, Congress will have the regular appropriations process.  Some of the higher-level issues may be resolved by deals made in connection with the cap adjustment legislation.  Some significant challenges will remain.  Among these is funding the decennial census.  Historically, the Census Bureau has received steady increases in funding leading up to census years to allow it to prepare.  For the most part, that has not been happening.  Without a dramatic infusion of funding, having insufficient enumerators could lead to a significant undercount, skewed heavily toward low-income people. 

     The politics of appropriations riders also will change.  In recent years, most appropriations riders considered in conference committees have come from House Republicans, and most have been rejected as incapable of getting fifty votes in the Senate.  With Democrats now able and motivated to propose numerous riders of their own to constrain the Administration, it is unclear whether conference committees will continue to insist on “clean” bills or whether the two parties will trade riders with one another.

     Third, Congress will need to raise the debt limit.  With control of Congress now divided, and with polls suggesting that the electorate is well-aware of the 2017 tax law’s role in increasing the deficit, Republicans seem to have little prospect of blaming Democrats successfully for a crisis over failure to raise the limit.  Democrats have generally supported clean increases to the debt limit and appear to have little leverage to extract more.  Indeed, now that House Republicans are in the minority and feel insulated from blame, they seem likely to vote “no” en masse to force as many vulnerable Democrats as possible to vote for the increase. 

     Finally, despite losing the House, Republicans are likely to try to put tax cuts back on the agenda.  They have been agitating for technical corrections to the hastily-drafted December 2017 tax bill.  Democrats, of course, have been seeking technical corrections to the hastily-drafted Affordable Care Act for eight years now, with Republicans refusing to address even the smallest glitches.  Whether a “technicals for technicals” deal is possible likely will depend on the fiscal impact of each proposed package as well as on whether Democrats believe the Administration will faithfully carry out any health care technical amendments. 

     Republicans also will propose legislation to make the “middle class” portions of the 2017 tax bill permanent.  (To comply with budget process rules forbidding budget reconciliation legislation from increasing the deficit in years beyond the current budget resolution, the tax bill sunset some of its more politically popular provisions after 2025.  This has caused my Tax students great consternation.)  Although technically the Senate may not originate revenue legislation, Senate Republicans likely will seize on any revenue-related bill coming over from the House, no matter how trivial, and amend it to make the 2017 cuts permanent.  (This prospect could cause the House to withhold action on routine matters to avoid presenting the Senate with a tax vehicle:  it can be surprising how many seemingly unrelated matters have an incidental revenue aspect.)  House Republicans also may try to pressure vulnerable Democrats into signing a discharge petition to bring tax legislation to the floor. 

     If Republicans succeed in extending the 2017 tax cuts, the pressure for deep cuts in domestic spending will intensify.  Although the 2017 law heavily favored the affluent, its total cost was so great that even extending its “middle class” provisions would create a huge additional hole in the budget – all the more so given the capacious definitions of “middle class” that arise in tax debates.  Similarly, politically attractive proposals to uncap deductibility for state and local taxes would be both costly and quite regressive.  With no politically plausible path toward reducing the deficit with increased revenues, and with Republicans returning to attacks on the deficit in record time after enacting an unfunded $1.9 trillion tax cut, any further reduction in revenues is likely to lead to a roughly dollar-for-dollar reduction in spending, the great majority of which will be domestic.  Democrats could propose making the “middle class” provisions permanent in exchange for offsetting changes to the corporate and upper-income tax cuts that have failed to generate the promised increase in investment, but Republicans seem unlikely to agree.  

The Senate's Representational Imbalance (2019 edition)

Marty Lederman


Now that Cindy Hyde-Smith has, as expected, won the run-off election to serve the final two years of Thad Cochran's term as Senator from Mississippi (Cochran retired), we know that Republicans will have a 53-47 advantage in the 116th Congress beginning in January.

What percentage of the U.S. population will those 53 incoming GOP Senators represent, if we assume the Senators from a particular state represent the residents of that state?

Nineteen states, with a total of approximately 144,461,202 residents (based on 2018 estimates), will be represented by two Democratic Senators (if we count King and Sanders among them).

Twenty-two states, with approximately 130,126,870 residents, will be represented by two Republican Senators.

And the nine states with split delegations, i.e., with one Senator from each party--PA, OH, AZ, WI, CO, AL, WV, ME, MT (in order of population)--have a total of approximately 52,240,741 residents.

If we allocate the residents in those nine "split delegation" states evenly--if we assume, that is, the somewhat crude fiction that half of the residents are represented by Democratic Senators, and half by Republicans--then the 53 Republican Senators in the new Senate majority will represent only 47.8 percent of the population of the 50 states.  And that number doesn't even take account of the approximately 4.4 million residents of D.C. and the territories, who presumably would vote overwhelmingly for Democratic Senators, given the chance (although it's possible that the Puerto Rican electorate might, over time, choose some Senators who would caucus with Republicans).  If we accounted for them, the percentage of U.S. residents represented by the 53 GOP Senators would likely be closer to 46 percent.  And, importantly, it will be a remarkably unified majority, one that conforms in virtually every case to the wishes of the Majority Leader.

To be sure, this five to seven percent "representational imbalance" isn't a huge discrepancy in absolute terms--nowhere even close to predictions that by 2040 one-third of Americans might be represented by as many as 70 of the 100 Senators.  (I do not know how historically anomalous it is, either--i.e., in how many of the first 115 Congresses a unified majority of Senators represented less than half the nation.  If anyone knows of such calculations, please let me know.)  Nevertheless, because it moves the GOP from minority to majority status and because the 53 GOP Senators can be expected to march in lockstep with leadership (as will the vast majority of the 47 Democratic Senators), it makes all the practical difference in the world in terms of who controls the composition of the judiciary for the next two years (and perhaps beyond).  And that means, among other things, a continuation of the 50+ years of a Republican-appointed majority on the Supreme Court, despite the fact that a majority of Americans (and voters) have supported Democratic candidates for President and Senate in most recent elections, and the fact that the 47 Democratic Senators in the 116th Congress will represent states where a majority of Americans live.  (I discussed this judicial/political entrenchment phenomenon at greater length back in early October.)

On the broader question of whether the representational imbalance in the Senate is justifiable and/or lamentable, I highly recommend (i) this very interesting recent post by Mike Dorf in which he concludes that although "the Senate is a problem, . . . it is not a problem that systematically disfavors Democrats, except in the short run"; (ii) Richard Primus's response, in which he "push[es] back" on Mike's suggestion that the Senate might be "justified as part of the package deal that gives us our federal system"; (iii) Dorf's response to Primus, "A Tentative Burkean Defense of Something Like the Senate"; and (iv) Primus's sur-reply.

Tuesday, November 27, 2018

The Legal Shape of Resistance

David Pozen


The past two years have witnessed a remarkable burst of NGO activity on the left, as new groups established after the 2016 election have joined forces with longstanding civil liberties and civil rights organizations to resist President Trump. Constitutional scholars have followed (and, in some cases, participated in) many of these initiatives with keen interest. To understand the larger phenomenon, however, the most relevant body of law is not constitutional law but nonprofit tax law. How exactly is the “resistance” being structured, subsidized, and constrained by the Internal Revenue Code?

Curious about this question, I began to look into the legal shape of resistance efforts and found evidence of an intriguing pattern: prominent left-leaning nonprofits, both young and old, seem to be increasingly forsaking the 501(c)(3) “public charity” form in favor of the 501(c)(4) “social welfare” category, which comes with fewer fiscal privileges but greater freedom to engage in openly political work. This trend deserves close attention. It signals the possible emergence and institutionalization of a new model of liberal activism for an age of disenchantment with the Supreme Court—a new legal liberalism, if you will, less focused on litigation and more tightly tied to electoral politics and the legislative process.

For readers interested in these issues, I have just published a short piece in the Atlantic discussing (as the Atlantic editors titled it) “The Tax-Code Shift That’s Changing Liberal Activism.” I hope to have much more to share in the coming years on the historical development of the nonprofit sector and its relationship to constitutional law, politics, and culture.

Sunday, November 25, 2018

Procedural Implications of the Midterm Elections

David Super


     Well before the recent election, activists and pundits were hard at work shaping expectations for what would change in light of anticipated Republican losses.  Many of these predictions reflect considerable naivete about the operations of Congress.  Although many questions remain open, it seems useful to review what we know to this point.  This is the first of two posts; the second will focus specifically on budgetary issues.

     First, as to leadership.  The Senate is unlikely to see meaningful changes at the top:  Majority Leader McConnell led his caucus to larger-than-expected gains.  Democrats’ losses seem hard to attribute to Minority Leader Schumer, and having won his position by acclamation just two years ago he has no obvious challenger.  House Majority Leader McCarthy was easily elected minority leader after having worked tirelessly, and reasonably successfully, to minimize his party’s losses.  He also had the President’s support, which insulated him against the conservative critics who denied him the speakership previously.  To prevail, he only needed a majority of the Republican Caucus.

     House Democrats are another story.  Rep. Pelosi was one of the most skilled and effective speakers of modern times; if anything, she demonstrated even more acumen as minority leader.  Her ability to force Republicans into difficult votes while often shielding her own Members has a lot to do with Democrats’ reconquest of the House.  She also shrewdly leveraged situations when the Republican Caucus was split to extract substantial policy concessions from the Speakers Boehner and Ryan in exchange for the necessary Democratic votes.  The minority leader risks blowing up a deal of this kind if she dances a jig upon its completion, but her successes in defanging the devices Republicans had used to leverage cuts in domestic programs – the debt limit, sequestration, the need to adjust Medicare physicians’ reimbursement rates, etc. – merit a full ballet.

     Republicans have, however, succeeded in making her a lightning rod and frequently tried to tie Democratic candidates to her.  Her path to the speakership is considerably more difficult than Rep. McCarthy’s path to becoming minority leader was because she not only needs to win a majority of the Democratic Caucus – which she likely will secure in the next two weeks – but also to have 218 Members vote for her to be speaker on the first day of the new Congress.  That would require several Democrats who pledged not to vote for her to reverse their positions.  She is a superb vote-counter, and if she does not have those votes will withdraw on her own.  If she does step down, the rest of the House Democratic leadership, which currently has regional and factional balance, may be upended.  For example, if Democrats choose a more moderate candidate for speaker, progressive members may demand that one of their own become majority leader rather than retaining Minority Whip Hoyer.  Sorting this out could take quite some time.

     Senate Republicans may claim that their modest gains entitle them to shift the partisan balance in committees’ membership, presumably to create an 11-to-9 Republican advantage on the typical committee.  Democrats in theory could filibuster the organizing resolution that sets up Senate committees at the start of the new Congress but likely would only do so if the Republicans overreach sufficiently that the Democrats feel confident that the public will not blame them for obstructionism.  During the George W. Bush administration, Republicans (relying on Vice President Cheney’s tie-breaking vote) insisted upon a one-seat advantage on all committees when the Senate was evenly divided between the parties, and Democrats acquiesced.  In the current situation, one can imagine negotiations leading to two-seat Republican majorities on more powerful committees and one-seat majorities on others.

     A two-seat Republican majority still would allow Democrats to block legislation or nominations if they can stay together and persuade one Republican.  It does mean, however, that Democratic amendments to legislation will fail in committee unless they can attract two crossovers, which seems unlikely given the near-total disappearance of Republican moderates.  A two-seat majority also would allow Republicans to advance legislation when one of their Senators is ill or otherwise absent.

     House committees historically provide the majority party considerably larger margins than their overall numbers would dictate.  Nonetheless, because of the ideological range of the caucus, some committees may prove unreliable for the leadership’s priorities.  And with relatively tenuous control of the House and many new Members from Republican-leaning districts, Democrats cannot even consider passing over more conservative Members who are in line to chair committees. 

     Some Democratic activists have rejoiced that Democrats will have a voice in policy for the first time under President Trump.  This is incorrect:  the threat of a filibuster required all legislation apart from budget reconciliation bills to be negotiated with Senate Democrats, and fractures in the House Republican Caucus often gave House Democrats leverage on important legislation such as appropriations and legislation raising the debt limit.  Democrats’ taking over the House should, however, prevent Republicans from threatening to resort to budget reconciliation.  That, in turn, will strengthen the hand of Senate Democrats despite their somewhat diminished numbers by forcing all legislation to go through the regular order.

     The House Democratic leadership may have considerable difficulty controlling the floor.  Although control of the gavel and committee supermajorities initially may succeed in bottling up problematic legislation, Republicans amended House rules to facilitate petitions discharging committees from the further consideration of particular bills.  If a majority of representatives signs a discharge petition for a particular bill or resolution, the leadership must bring it before the House promptly.  Republican seem likely to exert strong pressure on vulnerable Democrats to sign discharge petitions on politically seductive legislation, including bills to further harm the environment and to intensify pressure for budget cuts by extending or expanding the 2017 tax cuts.

     One result of a Democratic House majority that activists most eagerly anticipate, and that Republicans most fear, is the ability to subpoena executive branch witnesses to investigate what the Administration has been doing.  This process is not nearly as simple as many seem to believe. 

     Rule XI(m) of the House’s standing rules allow committees and subcommittees to issue subpoenas, either by a majority vote or through committee rules delegating the subpoena power to the chair.  One might hope that the issuance of such a subpoena would be decisive, but the current Administration may not be inclined to comply routinely, 

     The Senate has a special statute allowing its legal counsel to bring a civil contempt action in federal district court to compel compliance with its subpoenas.  The House, unfortunately, lacks such a statute (and certainly is unlikely to obtain one under this Administration). 

     Should an Administration official (or anyone else) ignore a subpoena, the House may pass a resolution asserting that that individual is in contempt of Congress and referring her or him to the appropriate U.S. attorney for prosecution.  Jefferson’s Manual § 299 at 143-44 (2017).  The first such case against a sitting executive branch official involved EPA Administrator Anne Gorsuch in 1982. 

     The President, however, controls the Justice Department, and his appointees can decline to take action against those ignoring House subpoenas.  The President has repeatedly asserted that the Department of Justice should act to further the current Administration’s policy; it therefore remains to be seen whether this aspect of the Department’s historical and statutory role will survive.  The House occasionally has passed resolutions authorizing the Sergeant at Arms or other officers of the House to retain counsel to assert the interests of the House, Jefferson’s Manual § 291b at 135 (2017), and in theory it may direct its Sergeant at Arms to detain any recalcitrant witness.  Jefferson’s Manual § 297, at 140 (2017).  When compared with the resources of the Administration, however, these seem rather underpowered.    

     Should the Administration both refuse to comply with a lawful subpoena and direct the Justice Department to take no action to enforce the House’s subpoena, the House in theory could commence impeachment proceedings against the official refusing to comply, against the attorney general, or against the President.  The minimal prospects of obtaining the required two-thirds majority in the Senate to convict – indeed, with no assurances that Senator McConnell would even convene an impeachment trial at all – this is a rather limited threat. 

     These practical limitations may be part of Democratic leaders’ motivation in insisting that House committees limit and coordinate their oversight efforts.  If subpoenas may only be effectively enforceable in the court of public opinion, Democrats will want to avoid the perception that they are overreaching.  

     One possible deterrent to blatant disregard for the House’s subpoenas is the possibility that an individual doing so could be prosecuted under the next Administration should the President not be re-elected.  Although prosecutions under the statute for contempt of court carry a one-year statute of limitations, contempt of Congress is criminalized under a separate law and thus would appear to fall under the general five-year federal statute of limitations.  Of course, any Administration official refusing to comply with a House subpoena facing that prospect could hope that the President would pardon her or him before leaving office.  

Affirmative action and racial tribalism

Andrew Koppelman


Last week, at the Federalist Society Lawyers Convention in Washington DC, I was on a panel about Students for Fair Admission v. Harvard, in which it is alleged that Harvard has been discriminating against Asian-Americans.  Here are my remarks:




The affirmative action controversy is tediously familiar.  It’s a ubiquitous part of American life.  (I’m a beneficiary of affirmative action myself, since I’m the token liberal on this panel.)  For many years, American conservatives have proposed to interpret all civil rights laws, including Title VI of the Civil Rights Act of 1964, to prohibit it.

It’s a commonplace of semantics that the exact same action can have different meanings in different contexts.  Students for Fair Admission v. Harvard presents itself as a blow against racial tribalism.  In context, though, this is likely to make that tribalism worse.

I begin by wishing a plague on both your houses – the opponents of affirmative action, but also its defenders.  Start with the opponents.

When Chief Justice Roberts writes that “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” he claims that the essence of racism is classification.  Roberts implies, as Alan Freeman put it decades ago, "that Black Americans can be without jobs, have their children in all-black, poorly funded schools, have no opportunities for decent housing, and have very little political power, without any violation of antidiscrimination law."  To this one might add mass incarceration, with its devastating effect on families and communities – something that conservatives, who care about intermediate associations and the values of local communities, ought to be more concerned about.  On Roberts’s account, if black people think that these disadvantages stamp them with a badge of inferiority, that is solely because they choose to put that construction upon it.

Aggregate racial effects matter.  A large class of Americans remains disadvantaged because their ancestors were slaves.  To that extent, we still haven’t defeated the Confederacy.  Opponents of affirmative action commonly say that we can achieve a comparable level of racial diversity without using racial classifications.  But note that they concede that it is ok to say that.  Evidently they’re not indifferent to aggregates either.

But one can say all this without defending affirmative action, which doesn’t remedy the worst injuries of racism. It benefits the most privileged minority applicants.  It helped create a large black middle class, which is a great accomplishment, but it doesn’t address the most damaging consequences of slavery and segregation.  It’s racial justice on the cheap. 

It creates the illusion of equality.  Justice O’Connor’s opinion in Grutter v. Bollinger is quite transparent about this:  “In order to cultivate a set of leaders with legitimacy in the eyes of the citizenry, it is necessary that the path to leadership be visibly open to talented and qualified individuals of every race and ethnicity.”  The entering class of Harvard is to be selected, as Robert Delahunty once put it, on the same principle as “models in a United Colors of Benetton advertisement.”  The obsession with appearances also drives the demand for obfuscation, as when the Court allows race to be a plus factor but bans quotas, even though these are functional equivalents.  And it also stokes racial resentment: for every black student admitted, there are 100 white ones who know, to a moral certainty, that they would have gotten that slot.

The left shouldn’t settle for this.  It should demand a lot more.  I would cheerfully jettison affirmative action in favor of measures that would actually improve the condition of the worst off people in American society, black and white.  Maybe Congress could do it, in a grand bargain that clarifies the Civil Rights Act while at the same time taking more concrete measures against racial subordination.  I have no illusions that that will happen.  The proposal that is on the table is to abolish affirmative action and replace it with nothing at all.

One doesn’t need to love affirmative action to worry about Students for Fair Admissions v. Harvard.  I won’t try to adjudicate the merits of the lawsuit, since the expert statisticians are in deep disagreement.  If Harvard does discriminate against Asian-Americans, that’s nasty.  Discrimination against an ethnic minority is exactly what the law aims to prohibit.  On the other hand, it’s confused to say that Asians have any special stake in eliminating affirmative action for African-Americans.  Even if you set aside a quota for that group, that says nothing about what you do with the remaining slots.

Everyone understands that this litigation aims to beat a path to the Supreme Court, and to persuade the Court to discard the decades-old understanding of Title VI in favor of an absolute bar on any consideration of race.  The consequence would be a significant reduction in the number of black students at many universities.  This private litigation may be the opening wedge of more lawsuits to come.  The Trump administration is preparing to redirect resources of the Justice Department’s civil rights division toward investigating and suing universities over affirmative action admissions policies deemed to discriminate against white applicants. 

What will it mean for a Republican Justice Department to start investigating colleges for telltale signs that there are too many African-Americans?  It would fit very neatly into a dangerous narrative.  Only 27 percent of Republicans think that black people experience a lot of discrimination today, but 43 percent think that there is a lot of discrimination against white people.  (In the past few years, the percentage of Republicans who believe that Muslims, LGBT people and Jews face discrimination has likewise dropped.)  This litigation promotes a narrative in which incompetent and undeserving black people are taking desirable spots from whites.

Chief Justice Roberts writes:

Government action dividing us by race is inherently suspect because such classifications promote “notions of racial inferiority and lead to a politics of racial hostility,” “reinforce the belief, held by too many for too much of our history, that individuals should be judged by the color of their skin,” and “endorse race-based reasoning and the conception of a Nation divided into racial blocs, thus contributing to an escalation of racial hostility and conflict.

Not a word about subordination: racism divides groups that he imagines to be otherwise equal.  The problem is thinking of ourselves in tribal terms. 

But stipulate that he’s right, and look at what this litigation does – again, to the extent that its goal is the elimination of all racial classifications.  It is widely understood, by left and right, to be an effort to enlist Asian-Americans to form a bloc with whites, to resist the claims of blacks.  It promotes the politics of racial hostility.




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