Tuesday, January 21, 2020

On the Persistence of Really Bad Constitutional Arguments

Stephen Griffin

Today’s NYT has a story about the “constitutional nonsense” propounded by the White House Counsel’s trial memo.  The nonsense is their argument that only ordinary crimes (or perhaps violations of law) can be impeachable offenses.  The article accurately reports that the vast majority of scholars and commentators who have examined this issue have concluded that this is wrong.  It is not only wrong, it is wrong on multiple counts – text, history, structure – you name it, all methods of constitutional interpretation appear to line up the same way.  Thus the scholarly confidence about “nonsense.”

Well, almost all methods.  On this blog in September I predicted that Republicans “will attempt to defend Trump on the ground that only a criminal violation can justify impeachment.  They will say that only a criminal charge can arise to the level of seriousness required by the Constitution and also provide the specificity that can allow the president the due process of being allowed to refute the charge.”  I also said there would be a race to frame the issue, but in my humble opinion Democrats muddied the waters by playing around with the idea of charging Trump with a crime such as bribery.  They think their charge of “abuse of power” is an obvious way to characterize Trump’s actions and maybe it is.  But it doesn’t fully deal with the historical currents that have produced the “no crime, no impeachment” argument in the past.

Why are past impeachments relevant?  Our constitutional tradition allows people to make arguments not only on the grounds of judicial “precedent,” but historical “practice.”  Some practice is against Trump as well, as federal judges have been accused of impeachable offenses that are not federal crimes.  But, as I detail in this article, this is not really true of presidential impeachments.  There is some truth in the contention of the Trump lawyers that all past presidential impeachments have gone forward on a criminal model.  So they potentially have a “practice” argument although all other methods of interpretation are against them.  And it is important to understand why.

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The Personal is the Political (Impeachment Edition)

Mark Tushnet

Something's been nagging at me in connection with a common -- perhaps the most common -- argument supporting Trump's impeachment. I'm going to approach the specific argument indirectly, beginning with Alan Dershowitz's now notorious "Alaska" hypothetical.

As a reminder, here's the hypothetical: "Assume Putin decides to 'retake' Alaska, the way he 'retook' Crimea. Assume further that a president allows him to do it, because he believed that Russia has a legitimate claim to 'its' original territory… That would be terrible, but would it be impeachable? Not under the text of the Constitution." Tweak the hypothetical: Putin informs the United States that Russia will occupy Alaska with its own military forces next week. The US president consults widely, and concludes that the risks of all-out war discounted by its improbability exceed any benefits the US will receive from retaining Alaska for the indefinite future. The president therefore informs the world that the US will not forcibly resist the Russian "invasion." Do people think that that is an impeachable act? (If so, was Trump's decision not to escalate against Iran impeachable? The point of this question is to raise the possibility that whether an action is impeachable turns on whether the underlying calculations of the national interest are correct -- or at least are within a range of political reasonableness.)

Closer to the original hypothetical: The president examines Putin's claims on the merits and concludes that they have some basis in reason -- and that maintaining good relations with Russia is in the national interest. Is acceding to Putin impeachable?

My thought here is that ordinary (and honestly done) calculations about what is in the national interest are at best problematically characterized as impeachable acts. (The contrary view, which I think has some merit, would be that at some point such calculations are so out of line with political sentiment in the nation that immediate removal via impeachment is a purely political remedy -- but the arguments for impeachment on these grounds have to be pitched in appropriate terms.)

Now to the common argument about Trump. Here's the version from the House: "Overwhelming evidence shows that President Trump solicited these two investigations in order to obtain a personal political benefit, not because the investigations served the national interest." The contrast between "the national interest" and "personal political benefit" is explicit. 

And here's the nagging concern: Suppose Trump believes, as I'm sure he does, that his reelection after a campaign against any rival is in the national interest. Or, to put it in the House's terms, the national interest coincides with a "personal" -- but really "political" -- benefit to Trump. So, why is it impeachable to act to ensure a re-election that is in the national interest?

Here too there are lots of variants, captured in Mick Mulvaney's "It happens all the time." Suppose, as political commentators appear to believe, that US policy toward Cuba -- and now Venezuela -- is determined in part by successive presidents' calculations that the policy course they pursue will make it more likely that they will carry Florida's electoral votes, and that carrying those votes (and not the policy itself) is in the national interest. 

Maybe there's some implicit idea about openness and regularity that distinguishes between Trump's version of the coincidence of personal political benefits and the national interest. (Though I note in this connection that the link between Cuba policy and electoral concerns is an open secret, with "secret" being the operative word here.)

Otherwise, maybe the argument supporting the House's formulation is simply that the equation of personal political benefit with the national interest, which I'm imputing to Trump, is simply wrong. Here the formulation probably should be that it's fine for Trump to think that his reelection would be better for the nation than the election of any rival, but that the increment of national benefit isn't great enough to justify irregular and secret actions to defeat rivals. And finally, in my view that may be the best way to understand the use of the phrase "abuse of power."

Friday, January 17, 2020

Profiles in Cowardice

Gerard N. Magliocca

The Vice President attended the law school at which I now teach. Unfortunately, his op-ed in today's Wall Street Journal demonstrates that he did not learn much there about President Andrew Johnson's impeachment trial. (To be fair, though, why would he have?) In the op-ed, the Vice President repeats a set of false assertions about the trial popularized long ago by John F. Kennedy in his book Profiles in Courage. JFK's theme was that the handful of Republican Senators who voted for President Johnson's acquittal were courageous men of principle who stood up to partisan pressure.

These senators were, in fact, cowards. The real profiles in courage were the House impeachment managers, led by John Bingham, who fought body and soul for the Fourteenth Amendment against President Johnson's determined opposition. (Go and read Bingham's closing argument in the trial to see real courage.) Saying this in 1957, when Profiles in Courage was published, would have been highly controversial, so JFK took the easy way out. (He was also running for President and wanted the support of segregationist Democrats.)

Could a person of principle have voted for President Johnson's acquittal in 1868? Probably. Was Senator Edmund Ross of Kansas, whom JFK and the Vice President single out, one of those men? Definitely not. He was bribed for his not guilty vote. Ross was promised lots of federal patronage if he voted in favor of the President. Word of this got out after the trial ended and Bingham wanted the House of Representatives to investigate. Realistically, though, there was nothing that the House could do short of impeaching Johnson a second time, which was impractical at that point.

The Vice President concludes his op-ed by asking "Who will be the 2020 Profile in Courage?" The answer is the same as it was in 1868. The House impeachment managers.

Wednesday, January 15, 2020

Another Senate Trial Question

Stephen Griffin

Is whether David Super is right that any proposal by Majority Leader McConnell to establish trial rules different from the Senate's permanent impeachment trial rules (last changed in 1986) can and will be filibustered by Democrats.  Super thinks the default rules work to the Democrats advantage by giving the Chief Justice more leeway to preside.  I've seen no discussion of this possibility in the press.  I think filibustering McConnell's rules might be difficult for the Democrats to explain unless they did a lot of work, but I'm not sure.  I'm more sure that Super is not remembering the Clinton trial correctly.  What everyone remembers about the Clinton trial is the 100-0 vote setting up the initial rules, a vote that McConnell has treated as a "precedent."  What everyone seems to forget is that the rest of the trial beyond the ambit of the 100-0 agreement was firmly under the control of Majority Leader Trent Lott.  Chief Justice Rehnquist presided and he took Lott's "advice" about how to rule on motions.  Any other course would have resulted in Republican senators reversing Rehnquist's rulings on appeal, which presumably Rehnquist didn't want.  I think CJ Roberts will be no different.

On the eve of trial . . .

Gerard N. Magliocca

I'm struck by two aspects of the trial. The first is that once a trial begins it takes on a life of its own. This is why most people avoid them: they are unpredictable. If the Senate decides to hear from live witnesses, then the Majority Leader will learn the hard way that he cannot control this process.

The second point is that we will quickly learn whether the Chief Justice wants to play an active role. The Senate impeachment trial rules give him the right to rule on all motions, or he can choose to put those motions directly to a Senate vote. The former gives him more influence over the proceedings. The Senate can overturn the Chief Justice's ruling, but they need 51 votes to do so. More important, rejecting the Chief Justice's position is not the same as taking the same position when he is silent. A presumption of correctness will attach to his rulings, though how strong that would be is unknown. But will he choose to act more like a trial a trial charge or more like a master of ceremonies? Even he may not yet know. The Chief may also be called upon (fairly early on) to break a tie. Will he do so? How will he do so? It's not like calling balls and strikes.

Tuesday, January 14, 2020

Why the Court should grant the petitions in the ACA case despite the absence of any injunction

Marty Lederman

The recent Affordable Care Act decision by the U.S. Court of Appeals for the Fifth Circuit didn't, as a formal legal matter, result in any coercive judgment against anyone: No party is subject to any judicial decree, and no one is legally obligated to alter their behavior, as a result.  Ordinarily, that fact would be reason enough for the Supreme Court not to get involved in the case--not yet, anyway.

But this is no ordinary case.  The divided Fifth Circuit panel acted inexplicably--I think it's fair to say indefensibly--in two major respects, and thereby caused a de facto crisis in the national health care markets even in the absence of a formal injunction or declaratory judgment.  What's more, from all that appears the court of appeals did so deliberately, just so that its opinion would have such a convulsive impact.  That is to say, the upshot and apparent objective of the court of appeals' two egregious errors--something that cries out for immediate correction--is precisely that it chose to issue an interlocutory decision that can't be explained by anything other than a plan to sow chaos (not by any other apparent legitimate reason, anyway).  That ought to be reason enough for the Supreme Court to grant certiorari and to correct the court of appeals' errors with dispatch, despite the case's interlocutory posture.  [UPDATE: To be clear, I'm usually wary of attributing ill motives to judges and most other government officials except where the evidence is clear.  And, as some readers on Twitter have suggested, there are of course other possibilities here -- but all those they've identified would be even less legitimate; as I note below, the respondents and DOJ don't offer any justification for at least the panel's severability punt; and, at a minimum, the panel issued its substantively indefensible rulings without regard to the foreseeable impact on the nation's health markets.]

The intervening defendant States, California, et al., as well as the intervenor House of Representatives, have not only asked the Supreme Court to hear the case in this unusual interlocutory, noninjunctive posture, but also to expedite proceedings so that the Court can resolve the case by the end of its current Term in June.  The plaintiffs in the case, including Texas and other states, have opposed the motions for expedition, as has the Department of Justice.  And yesterday, the States and the House filed their reply briefs on the motion to expedite.  You can find all of the filings here (in the California case, No. 19-840) and here (in the House case, No. 19-841).

As the House explains in its reply brief, the real question before the Court now isn't so much whether to expedite consideration of the cert. petitions but instead whether to grant those petitions themselves, because if four or more Justices are inclined to hear the case in this interlocutory posture, the reason for doing so would be to eliminate the interim, in terrorem impact of the panel decision, something the Court can only do effectively if it resolves the case quickly, i.e., this Term.  To be sure, if the Court were to refuse the motion to expedite but then grant cert. later this Term, leading to a final decision in, say, early 2021, that would surely be much better than waiting until the lower courts both issue their decisions.  Nevertheless, even a year-long delay would allow for unnecessary damage to the health care system resulting from the court of appeals' interim decision.  Therefore, as the House writes, the respondents' arguments, nominally in opposition to the motion to expedite, actually "go[] to whether this Court should grant certiorari now—not whether the Court should expedite consideration of the petitions for certiorari and, should it grant certiorari despite respondents’ arguments, decide the case this Term."

As for whether the Court should grant cert.:  I wouldn't ordinarily say this about an interlocutory appeal without any coercive decree, but I think that in this idiosyncratic situation the Court ought to grant the petitions (and thus the motions to expedite) because of the stratagem that two judges on the Fifth Circuit employed here and the foreseeable effects their manipulations will have.

As I noted at the top, the Fifth Circuit panel did two indefensible things.

First, it held that Section 5000A of the ACA, as amended in 2017, is unconstitutional because it now purportedly imposes a legal obligation on individuals to maintain health insurance--something the panel accuses the Republican-majority Congress and Donald Trump of having done in 2017 in defiance of the Supreme Court's own holding in NFIB v. Sebelius that Congress lacks the constitutional authority to impose such a mandate.

As regular Balkinization readers know, I've already explained at length, in a series of posts published before the court of appeals acted, why that reading of the statute--a reading the Department of Justice is now shockingly and irresponsibly defending--is patently implausible for at least four reasons, any one of which ought to have been sufficient to deter any serious lawyer or judge to reject that reading of the law.  Here's the short version.  (Those of you who're already familiar with my views can skip ahead a few paragraphs to the one beginning "Even so, ... ."):

First, the Supreme Court itself, in NFIB, already construed the two operative provisions of § 5000A to afford covered individuals a lawful choice between two courses of conduct, and the 2017 Congress did not amend those provisions, thereby leaving the lawful choice intact.  The court of appeals' contrary reading--that Congress in 2017 amended § 5000A to change a legal choice between two options into an invalid mandate to perform only the first of those options--thus makes no sense and flies in the face of the Supreme Court's authoritative reading of § 5000A (a reading that was necessary to its ultimate judgment).

Second, there’s no evidence in the legislative history—none at all—that any member of the 2017 Congress, let alone majorities of both Houses and the President, intended such a radical change or understood the amendment of subsection 5000A(c) to have such an effect.  To the contrary, every member of Congress to speak on the issue in 2017—from then-Speaker Ryan and Leader McConnell on down—as well as President Trump, confirmed that the point of the amendment was to eliminate any legal or financial pressure to purchase insurance, not to establish a legal obligation to buy it.  The court of appeals' reading, in other words, is one that no member of Congress or the President intended or foresaw, or that any member of Congress or the President would ever have accepted.  Indeed, just yesterday the President tweet-boasted that "I am honored to have terminated the very unfair, costly and unpopular individual mandate for you!"--a statement that directly contradicts and undermines the view his own DOJ is now arguing to the Supreme Court.  I don't write this often, but in this case . . . Trump is manifestly right.

Third, the court of appeals' (and DOJ's) reading would mean that tens or hundreds of thousands of people who didn't purchase health insurance were lawbreakers as of January 2019, even though that manifestly wasn't Congress's intent or design--and it would also mean that countless members of Indian tribes and indigent individuals who couldn't afford coverage have been recklessly and audaciously breaking the law for more than five years by failing to maintain covered insurance, even though Congress exempted them from the second of the two options.  As I wrote earlier, these implications of the panel's reading of the law are, "of course, ridiculous" fo, as Chief Justice Roberts wrote in NFIB, "Congress did not think it was creating [millions of] outlaws.”

Fourth, as I noted above, construing Congress’s modest amendment in 2017 as having converted Section 5000A from offering a lawful choice to imposing an invalid command to purchase insurance is effectively to accuse the 2017 Congress and the President of directly defying the Supreme Court—the precise opposite of what the constitutional avoidance canon demands.

For all these reasons, I genuinely think it's not hyperbolic to say that the court of appeals' (and DOJ's) reading of the amended § 5000A is about as misguided a case of statutory construction as you're likely ever to find.  In dissent, Judge King went so far as to write that it "boggles the mind."  I typically think that such rhetoric is inappropriate in judicial opinions.  This case, however, is the rare exception:  a more courteous description wouldn't capture just how indefensible the panel's reading of § 5000A truly is.

Even so, if that had been the only egregious error the panel made, the case wouldn't be cert.-worthy, because even though that reading of § 5000A led to the panel's additional holding that § 5000A is unconstitutional--a holding no one would dispute if the panel's reading of the provision were correct (which, as noted above, is one big reason why that reading is implausible)--that holding, standing alone, wouldn't change anyone's behavior, because it would have exactly the same impact as the correct reading of the amended § 5000A, which is that the provision doesn't require anyone to do anything.  Whether one reaches that conclusion because of the proper statutory interpretation (as any decent attorney or judge would) or because, on the incorrect reading, it's unconstitutional (the panel majority's ruling), makes no practical difference.  And it wouldn't warrant the Supreme Court's review at all, let alone on an expedited basis.

If that error stood alone.

But it doesn't.

Which brings us to the panel's second indefensible move:  It refused to decide whether the purported unconstitutionality of § 5000A rendered inoperative any or all of the other provisions of the ACA--the "severability" question that's driving the litigation.  Instead, the panel remanded that legal question back to District Court Judge O'Connor, knowing full well that he'll affirm his earlier decision that the entire ACA is nonseverable (or at most, that he might perhaps "sever" out a few of the less important provisions of the law).  The court of appeals thereby ensured that it'll be months before the question returns to the appellate court, and months more after that until the court of appeals actually enters a judgment enjoining anyone from doing anything.

As Judge King and many others across the political and jurisprudential spectrum have explained, the answer to the severability question is easy and straightforward, too:  Of course the 2017 Congress intended that the rest of the ACA would continue to operate even if § 5000A no longer requires or induces anyone to purchase health insurance.  Indeed, everyone in Congress in 2017 understood that § 5000A would no longer have those effects--not because it's unconstitutional, but simply because Congress "zeroed out" the shared responsibility payment (one of the two options available under § 5000A)--and yet Congress chose to leave the rest of the statute intact, thereby making its intent in this respect pellucidly clear.  As Judge King wrote in dissent:
Given the breadth of the ACA and the importance of the problems that Congress set out to address, it is simply unfathomable to me that Congress hinged the future of the entire statute on the viability of a single, deliberately unenforceable provision. ....  If Congress viewed the coverage requirement as so essential to the rest of the ACA that it intended the entire statute to rise and fall with the coverage requirement, it is inconceivable that Congress would have declawed the coverage requirement as it did.
"Unfathomable" and "inconceivable" are not exaggerations.  Thus, unsurprisingly, President Trump also understood, when he signed the bill, that it had not undone the key components of the ACA.  Indeed, in another tweet yesterday, he wrote that "I was the person who saved Pre-Existing Conditions in your Healthcare."  His own Solicitor General is now arguing exactly the opposite to the Supreme Court.  Once again, however, the President's understanding of his own (and Congress's) intent in 2017 is far more defensible--because it's obviously true--than the absurd reading the SG is offering.

Whatever one thinks of the merits of the severability question, however, the petitioners are right that little or no value would be served by allowing that question to be adjudicated in the first instance by the district court and the court of appeals, thereby delaying the Supreme Court's ultimate resolution of the case until 2022 or so.  There was no basis for the court of appeals to skirt the question.  The parties had fully briefed the question, urging opposite, categorical views that are antecedent to the sort of provision-by-provision analysis the panel instructed Judge O'Connor to apply.  If either side is right--if either all or none of the ACA provisions are severable from an inoperative § 5000A--that would be the end of the analysis and there'd be no justification for a painstaking severability review of all of the hundreds or thousands of provisions in the ACA, which would be a pointless exercise.  And there's nothing at all to be gained by waiting on the district judge's own view on this antecedent question, not only because we already know his view, but also because there's nothing he could add to what the parties themselves already argued to the court of appeals.  Severability is thus as ripe for decision as a legal issue can possibly be.  And it's a pure question of law of the sort the Supreme Court routinely decides in the first instance--indeed, the Court did so in NFIB itself with respect to the Medicaid expansion provisions of the ACA.

In contrast to the utter absence of benefits in further severability adjudication in the lower courts, the record demonstrates that the costs of waiting would be severe.  As the House writes in its reply brief:
[T]he Fifth Circuit’s decision creates crippling uncertainty for the health-care and health insurance marketplaces, and those harms fully warrant this Court’s review during the present Term.  See House Mot. To Expedite 5-6; see also State Intervenors Mot. To Expedite 5-7; State Defs. Mot. To Expedite 2-5 (5th Cir. Feb. 1, 2019).  As the record reveals, uncertainty over the ACA’s viability makes it difficult for insurers to predict the future of the marketplace, forcing some to raise premiums to account for that instability or to withdraw from the market.  See, e.g., State Defs. Mot. To Expedite, Bertko Decl. ¶ 4; Blewett Decl. ¶ 7; 7; Corlette Decl. ¶¶ 4-5, 7; Gobeille Decl. ¶ 4.  For smaller states with fewer insurers, losing even a single insurer will “negatively impact the stability and competitiveness” of the states’ health insurance markets.  E.g., id. Gobeille Decl. ¶ 2; Sherman Decl. ¶ 2.  That uncertainty also makes the process of rate-setting and managing the health insurance marketplace more complicated and costly.  E.g., id. Gobeille Decl. ¶¶ 6, 7; Sherman Decl. ¶ 7.  And, given that uncertainty, market participants and state governments must invest tremendous time and resources in developing contingency plans to alleviate the catastrophic effects of a sudden and immensely broad invalidation of the ACA.  E.g., id. Blewett Decl. ¶ 9; Gobeille Decl. ¶ 6; Sherman Decl. ¶ 7.
I'm the furthest thing from an expert on the health insurance and health care markets and so I don't have any independent views on whether and to what extent the alarms in the experts' declarations are accurate.  I do think it's telling, however, that none of the respondents even tries to make a serious case that those experts are wrong--i.e., that the Fifth Circuit’s decision doesn't pose a severe, immediate, and ongoing threat to the orderly operation of health-care markets throughout the country and thus casts doubt on the ability of millions of individuals to continue to be able to afford health care.

To the contrary, DOJ successfully urged the court of appeals to expedite its consideration of the case precisely in order to prevent the harms resulting from the continued “uncertainty in the healthcare sector” that the district court's decision had triggered.  Since then, that uncertainty has only gotten much worse because the panel affirmed the district court's absurd ruling that § 5000A is unconstitutional and signaled that it might eventually declare all or most of the ACA invalid as a result of that ruling.

As the House explains, it's especially remarkable that DOJ has now turned its back on its previous representations regarding the need for expedition because "while this litigation continues, the Executive Branch is being forced to devote massive resources, and spend billions of taxpayer dollars, to administer a comprehensive statutory scheme that it believes is wholly invalid.  It is difficult to fathom why the Executive would want that state of affairs to persist for years as th[e] Court awaits the outcome of unnecessary further proceedings in the lower courts."

To be sure, and as I noted at the outset of this post, the court of appeals has only issued an interlocutory ruling--one that doesn't include any injunctive decree.  But that is, in effect, exactly why the Court should grant certiorari and decide the case this Term.  The court of appeals majority (i) went out of its way "only" to (implausibly) declare § 5000A unconstitutional by reading it to do the opposite of what everyone knows Congress intended to do in 2017 (i.e., impose a patently unconstitutional mandate)--a holding that has no legal impact in and of itself--and then (ii) punted on the severability question, the one thing that could have had legal effect, in what appears to have been (iii) a deliberate effort to create an in terrorem situation while the litigation meanders on.

In effect, then, it looks as though the court of appeals is trying to exploit the fact that it issued no operative judgment in order to throw the health markets, and Congress's carefully crafted, complex solution to the nation's health care crisis, into a state of indefinite tumult.  Perhaps there's a more benign explanation for what the panel majority did here but, if so, I haven't seen it--and it's conspicuous that neither the respondents nor the SG makes much of an effort to identify any valid reason nor to otherwise defend what the court of appeals did.  The Supreme Court should insist, before further damage is done, that that's not an appropriate role for an Article III court to play.

The easiest way to do so would be for the Court simply to reverse the Fifth Circuit's patently mistaken reading of § 5000A--something it could easily do without much effort this Term.  Alternatively, the Court could conclude that it doesn't need even to review the panel's interpretation of the 2017 amendment to § 5000A because whether or not the 2017 Congress imposed a mandate to purchase insurance, it undoubtedly intended that the rest of the ACA would be operative even though § 5000A would have no effect.

Either way, the time to act is now.

Sunday, January 12, 2020

Critical Race Studies and the New York Giants Coaching Search

Mark Graber

My partial penance for living too blessed a life is my long time suffering as a New York Giant football fan.  This year, in a decade-long quest to achieve at least mediocrity, my Giants hired Joe Judge, a relatively unknown assistant coach formerly with the New England Patriots.  When asked to justify this selection, ownership pointed out how Judge commanded the room during his job interview.  Reporters who attended Judge’s first press conference confirmed that Judge has a remarkable command over the room.  This command was sufficient to justify the hiring of an unknown white coach in a league where the percentage of non-white players dwarfs the percentage of non-white coaches (and the percentage of non-white coaches dwarfs the percentage of non-whites in ownership/management).

My experiences working with undergraduate and law school trial teams suggest that the seemingly neutral quality, “can command the room,” is hardly neutral in practice.  When ranking our students, white attorneys who judge our competitions are more inclined to say white student attorneys successfully commanded the room, while African-American attorneys who judge our competitions are more likely to say that African-American student attorneys commanded the room (don’t get me started on women, where as best I can figure out both the male and female attorneys who judge our trials often rank female student attorneys randomly on their capacity to command the room).  That the white management of the New York Giants and a group of largely white reporters (and in fairness, several former African-American NYGiant football players at the press conference) ranked Judge high on capacity to command the room is not surprising.  We might nevertheless wonder whether Eric Bieniemy, a better known African-American coach with demonstrated motivational abilities, might have better commanded the room at his coaching interview had the Giants had two African-American owners and an African-American general manager or better commanded the room at the press conference had most of the reporters been African-American.  Who would better command a room of football players, most of whom are African-American, is an open question.

I do not believe the Giants ownership is guilty of implicit bias or racism in any simple sense.  The classic case of implicit bias is when persons react differently to persons with the same credentials, but different races/genders/etc.  The white couple making $60,000 a year with $60,000 in the bank gets the mortgage while the couple of color with the same income and savings does not.  My experience working with undergraduate and law school trial teams, as well as at numerous academic conferences, suggests that different people have different strategies for commanding the room.  While there is no distinctive white or black (or male or female) strategy for commanding the room, strategies for commanding the room do correlate in part to race and gender.  In short, what Giant ownership may have been reacting to is a particularly strategy for commanding the room that tends to be employed by and appeals to white persons, while, in the case of Eric Bieniemy, downgrading to some extent a particular strategy for commanding the room that tends to be employed by and appeals to African-Americans. 

What lesson one should draw from this is unclear.  I was neither at the coaching interviews nor at the press conference.   Could easily be that Joe Judge objectively commands a room better than anyone else.   I’m a souped up legal historian, not an expert on football coaching.  Still, the unquestioned use of the phrase “command the room” in the media may highlight the powerful presence of race in our daily lives just when race appears to be entirely absent.

Saturday, January 11, 2020

Comments on Legal Scholarship (Renewed)

Mark Tushnet

It's been a while since I commented on "developments" (and the like) in legal scholarship, but reading a couple of things over the past two days provoked me.

1. Ephemeral legal scholarship. For reasons not worth going into, I was reading the Supreme Court Review volume for 2013, and found in it a (quite good on its own terms) 100-page article on United States v. Windsor. Dale Carpenter, the author, developed an interesting argument about the shape an "anti-animus" doctrine should take. What struck me about the article is that how thoroughly (I think) it has been superseded by Obergefell. Put another way, Carpenter's argument for a general anti-animus doctrine misses the real-world point that the doctrine was (is?) a gay rights doctrine (even though, as Carpenter points out, there are predecessors in United States v Moreno and Cleburne). One hundred pages of scholarship on something that turned out to be relevant for no more than a half-decade at most seems like overkill. (It's probably too early to do a citation study on Carpenter's article, but my guess would be that there would be some citations before Obergefell, a few in the immediate aftermath, and then crickets -- although I should note that that pattern might well be true of all legal scholarship [I once started to do a citation study of articles published in top-ten law reviews but gave it up when the conceptual and practical questions overwhelmed me].)

One might say, of course, two quite contradictory things. (a) The anti-animus "doctrine" might well be a "good for this day and train" only thing -- but then, we know as common lawyers, that's true of all decisions (when phrased conditionally). Whether something is a precedent for something else depends on what later judges make of it, as Jan Deutsch's great article Precedent and Adjudication argued. (b) The "doctrine" extracted from Windsor might lie around unused for years or decades, only to explode in some as-yet-unknowable future case where it seems to be more suitable than any other available doctrine. So, maybe ephemeral (as almost everything is), but maybe not.

My concluding judgment would be that these observations push in the direction of writing (and publishing, if you can find a law review editorial board that agrees) articles that come in at around twenty pages with one or two interesting ideas that are offered with a single footnote to the effect, "I know there are lots of qualifications and details that I could insert, but those are going to be ephemeral whereas the animating idea here might have some staying power."

2. Quasi-ephemeral cases. As I was thinking about the Carpenter article, it also occurred to me that there are ephemeral Supreme Court cases as well -- not "little" cases that resolve immediate controversies that then disappear, but cases that say things that could have generative impact but don't. My example is Monaco v. Mississippi, a 1934 case dealing expressly with an Eleventh Amendment issue. The Supreme Court has cited the case 38 times, all but four being Eleventh Amendment cases (or discussions of the Eleventh Amendment embedded in cases dealing with other federalism-ish issues).

That's surprising to me because Chief Justice Hughes's opinion contains the following sentence: "Behind the words of the constitutional provisions are postulates which limit and control." This seems to me an all-purpose quotation suitable in all sorts of settings: enforcement of unenumerated rights (Griswold), enforcement of structural restraints not spelled out in the Constitution (Shelby County), and lots more. The line is quoted in Garcia and Printz, but I'm puzzled about why it isn't a go-to sentence much more often.

2. Legal scholarship in the genre of comedy. I don't want to call this "comical legal scholarship" because I'm concerned that that label would be thought critical or pejorative. A good example of legal scholarship in the genre of comedy is a student note published this week in the Harvard Law Review. The note has many moving parts, but I want to focus on only one. The author proposes to admit as new states of the union all 127 neighborhoods in the District of Columbia (thereby creating 254 additional Senators almost all of whom would be Democrats). When Josh Blackman tweeted a link to the note, there were all sorts of comments -- some resting on the idea that the note was offering a serious policy proposal that illuminated something about "liberals" these days. Obviously, though, the proposal has no serious chance of being adopted, and were it adopted there'd be hell to pay.

But I read the note as working in the genre of comedy, with a serious point (which many comedies have). The point is about what I've called constitutional workarounds -- things that are formally consistent with the Constitution's text and not expressly precluded by some other authoritative source such as an on-point Supreme Court decision, but that are transparently inconsistent with what might be called "the point" of the provisions they are working around. (My suggestion about how AOC could be president in 2021 described a workaround for the 35-years-of-age requirement for the presidency.)

So, what's the joke? There seems to be something constitutionally wrong with the proposal, but no one in the comment thread on Blackman's tweet came up with a good argument. A couple of people referred to the last sentence of Article V, that no state shall without its consent be deprived of its equal suffrage in the Senate. That's clearly a non-starter, though. The most obvious difficulty (there are others) is that the sentence can't sensibly be interpreted to mean that diluting a state's suffrage in the Senate counts as depriving it of equal suffrage. Otherwise the admission of every state after the original thirteen unconstitutionally deprived the original thirteen of their equal suffrage in the Senate. If one wants, one can talk fancily about the "construction" of the word "deprive" by decades of practice, but really, under any widely held view of interpretation "deprive" doesn't mean "dilute." (I know, I know -- there's a law of vote dilution under the Voting Rights Act, and that law has some genetic connection to statutory language referring to deprivations or denials of the vote, but this post is already too long).

So, what's the constitutional problem with the 127-new-states proposal? The best I can do is to suggest the possibility that there's some non-textualized constitutional definition of "state" (enforceable by the courts rather than by Congress in deciding which states to admit), and that DC's neighborhoods don't satisfy that definition. I've thought of some possible components of such a definition, but none seem good enough.

So, to conclude, the serious point of the comedy in the student note is about the inability of the Constitution's words to constrain in even the most obvious kinds of cases -- and therefore, even more so in the cases that we really care about.

My latest on procedures for the impeachment trial

David Super

In short, both Democrats and fair-minded Republicans should be singing the praises of the Senate's standing rules on impeachment trials -- which have the important virtue of having been established to cover all impeachments rather than any particular one -- rather than imagining that a badly fractured Senate could (or should) agree on one-off procedures for this impeachment.


Friday, January 10, 2020

The OLC's Mistaken Analysis of the ERA

Gerard N. Magliocca

Soon the impeachment trial will inhale all of the constitutional oxygen. Before that happens, though, I would like to explain why I believe the OLC was wrong in concluding that Congress cannot waive the expired ratification deadline for the proposed Equal Rights Amendment to the Constitution. To be clear, I think that a member of Congress can in good faith reject waiving the deadline or conclude that the states that rescinded their ratifications during the 1970s should not be counted as yes votes, which would leave the ERA well short of the three-quarters required for ratification.

The principal flaw of the OLC's analysis, in a nutshell, is in imposing an elegant solution on a messy problem. The elegant solution is that Article Five contemplates only prospective action by Congress for a constitutional amendment because "[t]he power to propose is . . . a prospective power, and does not entail any authority to modify the terms of a proposed amendment once it has been offered for the consideration of the States." OLC Memo at 27. The OLC argues that waiving the ratification deadline for the ERA would modify the terms of the proposed amendment because any deadline is part of the ratification mode of the amendment.

The first difficulty with this reasoning is that there is considerable contrary practice. Congress was heavily involved in the ratification process that followed its proposal of the Fourteenth Amendment, going so far as to direct how the process would be undertaken in most of the ex-Confederate states. What does the OLC have to say about that? Oh, that's just "one episode" plagued by "Reconstruction irregularities." Chief Justice Hughes, the OLC suggests, was wrong to pay attention to that example in his plurality opinion in Coleman v. Miller. OK. How about the fact that Congress did extend the ratification deadline for the ERA in 1978 with the OLC's approval? Oh, the 2020 OLC says that the 1978 OLC made a mistake. OK. How about the fact that Congress thought that a joint resolution was necessary to confirm that the Twenty-Seventh Amendment was ratified and passed one in 1992? Well, Congress was simply wrong about that: no congressional action was required for ratification. You must ignore a lot of facts the prospectively principle simply does not exist upon close scrutiny.

A second difficulty is that the OLC incorrectly conflates putting a ratification deadline into the text of a proposed amendment and putting one into a joint resolution that frames the proposed amendment. Everyone agrees that Congress can put a ratification deadline into the text of an amendment (Dillon v. Gloss so held) and that, once proposed to the states, Congress cannot change that deadline without proposing the entire amendment all over again. The OLC contends, though, that the same is true if Congress puts a ratification deadline into a joint resolution, as was done with the ERA.

Is the proposed text of a constitutional amendment the same as a joint resolution? Hardly. One is voted upon by states in the ratification process. The other is not. One becomes binding law upon ratification. The other does not. One requires a supermajority. The other requires only a majority. Moreover, we can tell that Congress did not think that putting a ratification deadline into a joint resolution was the same as putting one into a proposed amendment. How can we tell that? When Congress proposed an Article Five amendment to the states in 1978 to give the District of Columbia representation in Congress, the seven-year ratification deadline was put directly into the text. Why? Because the ERA ratification extension created an understanding that deadlines that were in a joint resolution could be changed, and Congress wanted the DC representation deadline fixed.

How does the OLC explain their novel idea of the equivalence of proposed constitutional text and a joint resolution? Part of the answer is that both create reliance interests for states in the ratification process. That's true. But they are different reliance interests. One (a deadline in the text of proposed amendment) means that the deadline may not be modified at all. The other (a deadline in the text of a joint resolution) may be modified only by another joint resolution, which is still a tall order. Now it's fair to say that the states may not have had adequate notice of this distinction prior to the 1978 ERA extension. To turn this point into a constitutional barrier, though, is a non-sequitur. Congress is free to conclude that waiving the ratification deadline now would be unfair to the states and would make the ERA illegitimate (especially when you throw in the state rescissions). But that is a discretionary call for Congress, not a constitutional requirement.

I could go on, as the OLC also takes some strange positions on the authority of the Supreme Court's leading precedent on Article Five--Coleman. But I think I'll save that until Virginia ratifies the ERA and creates the plausible argument that three-quarters of the states have ratified the proposal.

Iran and the Rhetoric of International Law

Jill Goldenziel

[Professor Goldenziel’s views do not represent those of her University, the U.S. Department of Defense, or any other arm of the U.S. Government.]

Tuesday night, Iran responded to the strike that killed General Qasem Soleimani by sending non-precision missiles to strike a US military base in Iraq. The US military had advance warning of the attack—as Iran likely knew they would--and no lives were lost. On Twitter, Iranian foreign minister Javad Zarif quickly called the strike “. . . proportionate measures in self-defense under Article 51 of UN Charter.” Zarif’s interpretation of international law here is incorrect. However, his quick use of international law to defend Iran’s actions suggests the importance of couching this conflict in legal terms.

Zarif’s tweet was not the first time Iran has invoked international law to support its positions in recent days. On January 3, the day Soleimani was killed, Iran’s ambassador to the United Nations sent a letter to the Security Council asking it to condemn the strike. At its outset, the letter states that General Soleimani had, “in accordance with the obligations of the Islamic Republic of Iran under international law and relevant resolutions of the Security Council,” played a major role in helping other countries combat terrorism. The letter further condemns the US strike as a gross violation of international law and the UN Charter. Iran reserved “. . . all of its rights under international law to take necessary measures . . . in particular in exercising its inherent right to self-defense.” The letter concludes by emphasizing that the Iranian military, and especially the Quds Force of the Islamic Revolutionary Guard Corps,  “. . . are determined, in line with the rights and obligations of the Islamic Republic of Iran under international law, to vigorously continue the path of Martyr Major General Qasem Soleimani in combating terrorist groups . . . .” Iran thus asserted that not only its government and military, but General Soleimani and his organization which the US designated as a terrorist group, have acted in accordance with international law. 

Zarif’s tweeted interpretation of international law is incorrect. First, it is unlikely that Iran had the permission of Iraq in conducting its airstrike on US forces. As of this writing, no evidence is available that Iraq consented to the strike, and it is unlikely that Iraq would give permission to its longtime enemy to conduct a strike against US forces on its soil. For Iran to have ignored Iraqi permission, Iran must be able to invoke its right to self-defense under the UN Charter. The right of self-defense permits use of force to repel an armed attack that has already begun, remains ongoing, or is imminent. Since the US’s attack on General Soleimani had ended, Iran would need to show that it launched the attack to prevent an imminent threat from the US. Iran has presented no such evidence of an imminent threat. Iran chose to lob ineffective, non-precision missiles at a US base, when it had capabilities for a far more destructive strike. It was also likely aware that US military would have early warning of such a strike, so damage would be relatively minimal. Iran’s strike, then, was not only illegal, but likely designed to be ineffective. Iran may have wished to appear that it was doing something to strike the US, thereby saving face before its people and the international community without escalating the conflict. 

Why would Iran invoke international law to defend Soleimani’s and its own actions, and claim that all of its actions would be legal? Iran surely knew its interpretation was weak and would be scrutinized. Even if it were accurate, Iranian leaders must have known that others would criticize its use of legal language when the Republic has been known to repeatedly flout international law. But it is precisely because of its poor reputation that Iran is stressing the legality of its action despite the risk of criticism. Iran wants to portray itself as a moral, credible international actor that plays by the rules of the international system. Iran is seizing the narrative surrounding the conflict. Following international law connotes legitimacy and trustworthiness. It wishes to portray the US as a rogue actor that flouts the international order, and itself as an upstanding citizen of the globe. In the days following the US President’s assertion that the US military would target sites important to Iranian culture, and his statements that the laws of armed conflict posed an unfair advantage to US adversaries, Iran wanted its own statements to support lawfulness. In doing so, Iran is striving to win hearts and minds, even if it cannot win the conflict itself. Also, Iran likely knew that tighter US sanctions would again be on the table following its strikes. Indeed, President Trump announced such sanctions today. In the past, the US convinced private sector actors to comply with its sanctions regime by emphasizing that Iran had been flouting the international legal order, and that US sanctions were designed to ensure that business transactions were in line with international law. By emphasizing the lawfulness of its actions in the wake of the strike, Iran wished to shore up its credibility as a legal actor with private sector actors it would need in the coming months. 

Iran’s actions emphasize the importance of lawfare to the narrative surrounding conflict today. It is much easier to win at war when you have prevailed in the court of public opinion. Indeed, sometimes the court of public opinion matters more. In today’s world, legality equals legitimacy in the hearts and minds of many. In using legal rhetoric, Iran is taking a page from not only the United States, but also from its enemies. Russia has repeatedly made legal arguments to support its invasion of Crimea, claiming that Crimea historically belongs to Russia and that it is acting to protect Crimea’s Russian population. China, after refusing to participate in the Philippines arbitration against it over disputed features in the South China Sea, launched a massive PR campaign to support its own position, and claimed that both the court’s jurisdiction and its decision violated international law. At one point, China went as far as to post a billboard in Times Square to this effect. In recent years, countries have increasingly wielded law as both an offensive weapon and a shield for their actions. Undoubtedly, the language of law—and by extension, morality—will continue to play a role in conflict between the US and Iran and throughout the globe.    

[Cross-Posted on ICON-nect Blog]

Wednesday, January 08, 2020

The OLC on the ERA

Gerard N. Magliocca

The Office of Legal Counsel has issued an opinion on whether the proposed Equal Rights Amendment to the Constitution may still be ratified. The OLC concludes that the ERA may not be ratified without starting all over again. I think that this conclusion is erroneous, for the reasons stated in my recently-published article in Rutgers Law Review.

At the outset, let me point out that I agree with many aspects of the OLC opinion. First, I agree with its conclusion that the Archivist of the United States cannot declare the ERA part of the Constitution if and when Virginia ratifies the proposal later this year. Second, I agree that in the absence of action by Congress to change the ratification deadline (which expired in 1982) the ERA cannot become part of the Constitution. Third, I agree that Congress may lawfully impose a ratification deadline on a proposed Article Five Amendment in the joint resolution associated with the amendment, as was done for the ERA, rather than in the text of the proposed amendment itself.

But the final portion of the OLC opinion makes several mistakes in reaching its conclusion that Congress cannot waive the expiration of a ratification deadline imposed through a joint resolution. I will outline these mistakes at some point in a separate post, although in practice any action from Congress on the ERA in 2020 is highly unlikely.

Podcast: "Does Populism Hollow Out Democracy?"

Mark Tushnet

In December I took part in a very interesting conference in Budapest on constitutional developments and interpretation in "populist" Eastern European nations. In conjunction with the conference Martin Loughlin and I were interviewed for a podcast by DEMOS (@DEMOS_H2020), a project on "Democratic Efficacy and Populism in Europe." The podcast is now available, and some Balkinization readers might find it valuable. Here are links:

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