Locating the absolute minimum level of policy “seriousness” our public sphere demands

Joseph Fishkin

Polls close soon in today’s special congressional election in Montana.  Last night, the Republican candidate Greg Gianforte reacted angrily to a Guardian reporter’s questions about the CBO score of the Republican health care bill by body-slamming the reporter to the ground and repeatedly punching him, according to eyewitnesses, one of whom was a reporter for Fox News, Alicia Acuna.

This put Acuna in an awkward position.  She and her two crew members were the closest eyewitnesses to an extraordinary and extremely newsworthy event—but also one that would likely harm the prospects of the Republican candidate in a very high-profile special election.  Thus, core norms of Acuna’s profession (tell the story, get the facts out, do it quickly and fairly) came into unusually sharp conflict with core norms of her employer (tell the pro-Republican side of the story, or else minimize the story).  To her great credit, Acuna put out a statement last night that was straightforward and unequivocal.  She stated that after Ben Jacobs, the Guardian reporter, asked his CBO question a second time, “Gianforte grabbed Jacobs by the neck with both hands and slammed him into the ground behind him. [My crew] and I watched in disbelief as Gianforte then began punching the reporter. . . . To be clear, at no point did any of us who witnessed this assault see Jacobs show any form of physical aggression toward Gianforte.”  (She clearly told the same thing to the police; Gianforte has been charged with assault.)  Early this morning, Acuna was interviewed on Fox News about the incident.  Some conflict between the two sets of norms within which she must operate—a conflict inherent in Fox News’ position in the political and journalistic ecosystem—was unavoidable.  Again to her credit, Acuna described the body-slamming on air.  She then made a slight shift, and read out a Gianforte campaign statement about what happened, the text of which filled viewers’ screens—a statement entirely at odds with her own account and, it would seem, with reality.  (In the statement’s version of events, Jacobs, the reporter, was the aggressor.)  Acuna did not contradict the campaign statement.  She just read it out.  She never restated on air the most important point from her written statement from the night before, the point that most directly contradicted the statement she had just read: that “at no point did any of us who witnessed this assault see Jacobs show any form of physical aggression toward Gianforte.”  To say on air that one side—the Republican side—of this “controversy” was simply lying would have conflicted too much with one of the two sets of norms to which Acuna is subject as a journalist working for Fox News.

This incident is interesting for all kinds of reasons.  Some of its most interesting resonances have to do with the nature of Fox News.  The way Fox News employees do their jobs has an enormous aggregate effect on one of the big political questions of our time: whether we can still have a public sphere, a national conversation, based on shared facts that are actually true.

On this front, the incident last night in Montana provides a useful boundary-delimiting end case.  It would be possible, I would think, to staff a news organization or a political organization (or a hybrid of the two) with people who, when required, will simply go out and flatly lie about events they have just witnessed with their own eyes.  However, although possible, this is tough to sustain.  Making people flatly lie in a sort of black-is-white, up-is-down manner about facts where there is a clear truth of the matter, and they know it, tends to erode their self-respect.  It makes it hard to hire and keep good employees. It makes you more vulnerable to disloyalty and perhaps to leaks born of employees’ internal torment and alarm.

What is easier and more sustainable than demanding flat lies is to trade instead on norms that are part of the role-morality of journalism itself.  One important set of norms within journalistic role-morality surrounds the idea that all sides of a controversy should have a fair chance to have their say.  When I watched Acuna’s broadcast interview, compared to her written statement, I heard her simply putting a little more weight on that particular journalistic norm, and less weight on the competing, sometimes-conflicting set of norms about stating the facts and getting the truth out.  Like a subtle shift of weight from one foot to the other, this is just a change of stance within a firmly journalistic posture; it doesn’t feel like an active betrayal of journalism’s core values.

In a democracy, we depend on journalism about many topics.  But we especially depend on journalism about public policy.  The challenging thing about public policy journalism is that the journalists are never eyewitnesses to the body-slam.  In order to understand what’s at stake in any given bill or regulation, journalists rely heavily on others’ expertise.  And those others are not eyewitnesses either.  Instead they are experts, who use canons of expert knowledge to assess and predict the effects of any change in the law and who it will affect and how.  The experts operate in a complex ecosystem with journalists who credential them as sources of relevant knowledge and then transmit that knowledge to a wide audience.  The journalists themselves are in the strange position of providing most citizens with most of what we need to know about important public questions that neither we nor the journalists can be sure we understand without help—and yet these are questions for which we, the people, are ultimately responsible.

The whole system works in part because the experts—politicians, academics, authors, think tank scholars, and assorted others—in many cases have their own forms of role-morality that (hopefully) constrain them from too wildly distorting the truth.  When that breaks down, the whole system by which journalists communicate with the people about policy breaks down as well.  It becomes possible to have national political debates—even consequential, electorally significant debates—about questions where the premises are simply untrue.

That brings me to the real topic of this blog post: the Trump administration’s budget.  Famously (in some circles, as discussed below), it does not add up, due to a $2 trillion double-counting of the already-wildly-inflated benefits of cutting taxes for economic growth.  The question is how we should understand this crazy $2 trillion hole at the heart of the budget.  One might criticize it as breathtakingly sloppy, or view it as an error.  But in my view, that’s the wrong way to look at it.  Mick Mulvaney, the budget director who shaped this document, knows what he is doing.  He is aiming to specify the budget with exactly the right level of policy “seriousness” to satisfy non-experts—journalists first of all, and then indirectly their viewers and listeners and readers—that the budget document is credible enough to be taken seriously.   The question is where exactly that line is.  Just how much can you get away with?  It’s possible that in this case Mulvaney may have miscalculated and overshot the mark.  But that is the essential game: to make promises just serious-sounding enough that they avoid immediate disintegration under the most cursory forms of scrutiny that are possible within the constraints of the abilities and norms of the relevant journalists—and no more.  That way you maximize the amount of good news you can credibly promise, and minimize the amount of bad news you must acknowledge.

More after the jump…

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Posted 9:06 PM by Joseph Fishkin [link]

One Thought on the Future of the Travel Ban Litigation

Gerard N. Magliocca

The expressed purpose of the President's Executive Order is that we need a temporary travel ban from six countries until new procedures are established to ensure that visitors or immigrants from those six countries do not pose a security threat. Let's assume that the Administration seeks certiorari from the Fourth Circuit en banc opinion and that certiorari is granted. The case cannot possibly be argued until December at the earliest, you would think.

By then, though, shouldn't the new procedures be in place? If they are, then the temporary travel ban will be rescinded and the case will be moot. If they are not, then the Executive Order will look like a   phony document (in other words, a permanent rather than a temporary travel ban) that will make its intent all the more suspect without having to delve into presidential campaign statements or what an aide said on cable news. The former seems like the more likely outcome, thus I doubt that this case will ever be heard by the Justices.
Posted 5:11 PM by Gerard N. Magliocca [link] (48) comments

The Fourth Circuit & Animus Under Mandel

Corey Brettschneider

Posted 4:30 PM by Corey Brettschneider [link]

The Shifting Ground of Redistricting Law

Guest Blogger

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Posted 3:03 PM by Guest Blogger [link]

Balkinization Symposium on James Pfander, Constitutional Torts and the War on Terror -- Collected Posts

Andrew Koppelman

Here are the collected posts for our Balkinization symposium on James Pfander's new book,  Constitutional Torts and the War on Terror (Oxford University Press, 2017).




Joanna Schwartz, Blind Justice, Lady Liberty, and the War on Terror

Posted 2:47 PM by Andrew Koppelman [link]

What is a Work Requirement?

Guest Blogger

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Posted 2:11 PM by Guest Blogger [link]

President Pence's first two decisions

Sandy Levinson

Imagine for the moment that Donald J. Trump exits the White House.  There are, of course, four possibilities:  Death, resignation, impeachment, or the invocation of the 25th Amendment.  Should the first occur, then perhaps I should change the subject line to President Pence's first decision.  Otherwise, the subject line holds.

So what are these decisions?  The first involves his use of the Pardon Power, though it is altogether likely that our sociopathic president will be more than happy, just before he exits, to issue a general pardon beginning with Michael Flynn, and ending, perhaps, with Trump himself.  Should that occur, then Pence would presumably have little occasion to consider the fate of Gerald Ford and the costs of a potential pardon of Donald J. Trump or, say, Jared Kushner, for their various flouting of American law.  Otherwise, that will surely be something he will have to consider.  Even if Trump himself is no longer alive to receive a pardon, one has the strong suspicion that other Trumpettes, some of them facing financial ruin because of having to hire private counsel to fend off Mr. Mueller, will be in dire need of get-out-of-jail cards of the type provided by George H.W. Bush as part of the Christmas orgy of pardons before he left the presidency in 1993.  Whatever one thinks of Bill Clinton's pardon of Marc Rich (sleazy at best), it doesn't compare to Bush's use of his pardon power basically to shut down the special prosecutor looking into the various actions involving Iran and Nicaragua, some of which implicated then-Vice President Bush himself.

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Posted 6:19 PM by Sandy Levinson [link] (82) comments

Constitutional Torts and the War on Terror

Guest Blogger

James E. Pfander

For the symposium on James Pfander, Constitutional Torts and the War on Terror. 

Let me first offer a few words of thanks: to my interlocutors for spending some time with, and sharing their thoughts about, the book and to my colleague Andy Koppelman for putting together this mini-symposium. Instead of replying to particular claims, I will try to tease out and respond to some of the broader themes in the collected reviews.

My book chronicles a departure in the United States from the sharp-edged rules of the common law, in which ordinary courts applied ordinary law to government actors. While they once followed English common law, federal courts today apply a familiar collection of discretionary doctrines that often result in the denial of remedies to the victims of government wrongdoing. The failure of remedies, in turn, leads to a shortage of law; courts fail to give voice to the legal norms that regulate the officialdom. The book focuses on the remedial failure that has greeted the victims of the Bush Administration’s RDI program of extraordinary rendition, detention, and enhanced interrogation (torture). But the remedial failure extends more generally (as Will Baude, Alex Reinert, and Steve Vladeck observed). Indeed, the Supreme Court has heard argument in two cases this Term, Abassi and Hernandez, that may tell us much about the future efficacy of the Bivens action.

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Posted 7:32 AM by Guest Blogger [link]

Federal Official Liability for Intentional Wrongdoing: Recovering the Past

Guest Blogger

Gregory Sisk
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Posted 1:41 PM by Guest Blogger [link]

Beyond the War on Terror

Guest Blogger

Will Baude
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Posted 3:56 PM by Guest Blogger [link]

Blind Justice, Lady Liberty, and the War on Terror

Guest Blogger

Joanna Schwartz

For the symposium on James Pfander, Constitutional Torts and the War on Terror.

The day Donald Trump announced his (first) travel ban, hundreds of lawyers set up crisis centers in airports around the country and began drafting legal challenges to the executive order. The next day, Judge Anne Donnelly of the District Court for the Eastern District of New York issued a temporary restraining order. Soon thereafter, judges in Seattle, Boston, Detroit, and Alexandria issued a variety of orders staying part or all of the ban. Trump appealed the Seattle court’s decision to the Ninth Circuit, arguing, among other things, that the President’s national security decisions were unreviewable. The Ninth Circuit denied the request for a stay, and in its decision strongly disagreed with the president’s depiction of the role of courts and the executive in national security matters. “There is no precedent to support this claim of unreviewability, which runs contrary to the fundamental structure of our constitutional democracy,” the per curiam opinion explained. “Indeed, federal courts routinely review the constitutionality of—and even invalidate—actions taken by the executive to promote national security, and have done so even in times of conflict.” After making a few angry tweets about the Ninth Circuit, and threats to take the case to the Supreme Court, Trump and his staff went to work on a new order.

During this flurry of legal challenges, a cartoon began circulating widely online. Blind Justice was staving off a pugilistic Donald Trump from the Statue of Liberty saying, calmly, “I’ve got this.”1 Trump had sought to use national security rhetoric to avoid judicial review of his immigration policies, and courts had refused to stand down.


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Posted 12:12 PM by Guest Blogger [link]

A Bivens Encomium—or Elegy

Guest Blogger

Stephen Vladeck
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Posted 4:45 PM by Guest Blogger [link]

The Cost of Seeking Legal Clarity

Guest Blogger

Alex Reinert

For the symposium on James Pfander, Constitutional Torts and the War on Terror.


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Posted 4:14 PM by Guest Blogger [link]

Constitutional Rot and Constitutional Crisis

JB

No one could accuse Donald Trump’s presidency of being boring.  The first hundred days have careened wildly through scandals, revelations, outrages, and fracturing of political norms. Every time Trump does something remarkable, like the recent firing of Director James Comey, pundits ask whether we are in a constitutional crisis.

However, as I noted in a previous post, constitutional crisis refers to something different: A constitutional crisis occurs when there is a serious danger that the Constitution is about to fail at its central task of keeping disagreement within the boundaries of ordinary politics instead of breaking down into lawlessness, anarchy, violence, or civil war.

As Sandy Levinson and I have explained, there are three types of constitutional crises. In Type One crises, political leaders announce that they will no longer abide by the Constitution or laws (for example, because of emergency), or they openly flout judicial orders directed at them. In Type Two crises, people follow what they believe the Constitution requires, leading to political paralysis or disaster. In Type Three crises, political disagreement about the Constitution becomes so intense that the struggle goes beyond the bounds of ordinary politics. People take to the streets; there are riots; the military is called out to restore order (or suppress dissent); political figures threaten violence or engage in political violence; or parts of the country revolt and/or attempt to secede,

Constitutional crisis is very rare, and nothing that has yet happened in the Trump Administration -- including the Comey firing-- comes even close. But people are right to think that something important-- and dangerous--is happening to our political institutions.  That is why, I think, people so often reach for the term "constitutional crisis" to describe it.

In this essay, I want to introduce a new idea to explain our current predicament. I will distinguish constitutional crisis, which is very rare, from a different phenomenon, which I think better describes what is happening in the United States today. This is the idea of constitutional rot.

Although the Comey firing is not an example of constitutional crisis, it is an example of constitutional rot.  For this reason, people are right to worry about it.
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Posted 2:02 PM by JB [link]

Call for Papers -- Constitutional History: Comparative Perspectives

Jason Mazzone

Below the jump is the call for papers for the third annual conference on Constitutional History: Comparative Perspectives to be held in Bologna, Italy on November 13 & 14, 2017.
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Posted 9:17 AM by Jason Mazzone [link]

Symposium on James Pfander, Constitutional Torts and the War on Terror

Andrew Koppelman

This week and next at Balkinization we are featuring a symposium on James Pfander's new book, Constitutional Torts and the War on Terror (Oxford University Press, 2017). We'll have contributions from Alexander Reinert (Cardozo), Gregory Sisk (St. Thomas), Joanna Schwartz (UCLA), William Baude (University of Chicago), and Stephen Vladeck (Texas). At the conclusion, Jim will respond to the essays.
Posted 7:37 AM by Andrew Koppelman [link]

For one family, war has tragic costs. For others, not so much.

Mary L. Dudziak

Posted 1:50 PM by Mary L. Dudziak [link]

Trump's Innocence and the Rule of Law: A Note on the Comey Firing

Richard Primus

Posted 10:32 AM by Richard Primus [link]