Divided by a Common Concept? Comparing Deference in Canada and the United States

Guest Blogger

For the Balkinization Symposium on The Chevron Doctrine through the Lens of Comparative Law

Paul Daly

I am a committed comparativist — in my 2021 monograph on judicial review of administrative action, I developed and applied a unified interpretive framework to the administrative law of Australia, Canada, England, Ireland and New Zealand; a decade ago I wrote a book on deference that drew on American, Canadian and English jurisprudence. And yet today, as far as judicial review of administrative action is concerned, I have the distinct impression that the United States and Canada are two countries divided by a common concept — deference. Although there is much in the Supreme Court of Canada’s recent root-and-branch reform of Canadian administrative law in the 2019 Vavilov decision that could illuminate the contemporary challenges for American administrative law, it seems doubtful to me that the SCOTUS will reach across the divide in its (re)consideration of Chevron deference in Loper Bright.

There are two aspects to this divide, which map onto steps one and two of Chevron, relating respectively to statutory interpretation and the methodology of deferential judicial review.

The Pardon of Ceasar Griffin

Gerard N. Magliocca

Griffin's Case is getting a lot of attention in the Section Three debate. In that circuit decision, Chief Justice Chase denied a writ of habeas corpus to a Black man (Ceasar Griffin) convicted in state court of assault.

I just wanted to point out that Mr. Griffin was pardoned by the Governor of Virginia about a week after the Chief Justice issued his opinion. (The Governor was an appointee of a Union Army commander in charge of the state under Military Reconstruction.) A Virginia newspaper noted the pardon on May 20, 1869. The Chief Justice's opinion was issued on May 9th or 10th, 1869. 

The Chevron Doctrine through the Lens of Comparative Law: Introduction to a Symposium

Guest Blogger

For the Balkinization Symposium on The Chevron Doctrine through the Lens of Comparative Law

Susan Rose-Ackerman & Oren Tamir

Constitutional law commentaries regularly include references to foreign law. Judges occasionally cite foreign sources in their judgments (sometimes triggering fierce disagreements about the legitimacy of that practice). Litigators make comparisons in their briefs. Constitutional law scholars of different stripes also consider how other nations adjudicate constitutional disputes and distribute constitutional powers. Foreign sources even occasionally prove central to debates outside the courts and in constitutional politics itself.

However, in the adjacent field of administrative law, attention to comparative or transnational practice is strikingly absent. Indeed, judges seldom reference foreign administrative law and fail to ask themselves, for example, how the laws and administrative structures of different nations might contribute to the interpretation of the APA. Litigators similarly don’t build their arguments around attempts to learn from other jurisdictions. Even the growing scholarship in administrative law that takes comparative practice seriously seems quite far from the center of scholarly administrative law discussions, both around the world but especially in the United States. 

Therefore, for comparativists, it might seem an unexpected positive endorsement to find a reference to foreign administrative law in nothing less than a Supreme Court opinion—perhaps for the first time since the 1930s. More specifically, in his opinion last Term dissenting from a denial of cert in Buffington v. McDonough, Justice Gorsuch explicitly referenced the fact that many—if not most—foreign jurisdictions don’t have a doctrine similar to Chevron, which instructs courts to defer to reasonable interpretations by agencies of open-ended statutes. As our own work confirms, Justice Gorsuch is quite clearly correct. If you look near and far, you will very likely not find anything exactly like Chevron abroad.

How the Government Shutdown Can End

David Super

      Although the federal government will not shut down for another five days, pretty much anyone who is paying attention has known for some time now that a shutdown is inevitable.  The machinations this week involve only Speaker McCarthy’s desperate efforts to salvage House Republicans’ abysmal public messaging.  Whether he succeeds or fails will have no impact on whether a shutdown occurs and may not even have much effect on the length of that shutdown.  The next logical questions, then, are how, when, and on what terms the shutdown will end.

Supreme Court Reform Redux

Mark Tushnet

Suppose you thought that current proposals for Supreme Court reform were merely politically motivated and ill-advised. How might you react to Jack Balkin’s suggestions (including his earlier discussion)? Specifically, are there plausible constitutional objections to them? (I write “plausible” to signal that I don’t necessarily agree with what follows but that someone skeptical about the proposals might find them not merely plausible but compelling.) 

One objection to the basic proposal, described by Jack as involving congressional creation of “two en banc courts,” almost leaps off the page. The Constitution says that there shall be “one supreme Court” but the proposal openly says that there will be two. (A formalist might say that each justice is appointed to the “one” supreme Court and then is assigned to different benches within that Court. A functionalist would be skeptical about that.) 

This textual point might be bolstered by suggesting that the Constitution creates two multi-member bodies (the House and the Senate) and assumes that each member will have rights and duties equal to those of every other member, subject only to regulations adopted by the bodies themselves (e.g, the reference to choosing a President pro tem by the Senate). My guess is that in discussions about whether to create a plural executive you’d find the same assumption at work, with people saying that distinctions among those people would have to be made expressly in the Constitution or adopted by the executives themselves.

Nudging the Justices to retire after 18 years

JB

In a previous post I explained how we might achieve the effective equivalent of term limits for Supreme Court Justices by changing the rules of the Court's appellate jurisdiction. According to my proposal, the President and Senate would appoint a new Justice in the first and third year of each President's term. The nine Justices most junior in service would hear cases under the Court's appellate jurisdiction, and all of the Justices would hear cases under the Court's original jurisdiction. 

Because the most important cases before the Court involve appellate jurisdiction, this would create the effective equivalent of 18 year term limits, with the group of Justices hearing appellate cases continually changing as new Justices are added to the Court.

In addition to this proposal, we should adopt additional legislation to give the Justices incentives to retire after 18 years of service. Here are some ways to do this:

1. Justices with more than 18 years of service should sit and hear cases on the circuit courts of appeal in addition to their other Supreme Court duties. Requiring Justices to ride circuit-- i.e., hear cases in the lower federal courts-- has been held constitutional since Stuart v. Laird in 1803.

2. Justices with more than 18 years of service may hire only one law clerk paid for by the government.

3. Justices who retire with at least 9 but no more than 19 years of service will enjoy a federal pension on retirement equal to three times their highest salary as a Justice. Justices who retire after 19 years of service will receive a federal pension equal to one half their highest salary as a Justice. 

This last proposal does not violate Article III's Compensation Clause, because it does not "diminish" the Justices' "Compensation .... during their Continuance in Office." It simply offers the most desirable  package of retirement benefits to those Justices who retire before completing 19 years of service. Note that Congress already varies the amount of retirement benefits  for federal judges by age and years of service under 28 USC Section 371. However, because some Justices may be near or past 19 years of service at the time the law goes into effect, we can and should create special transitional rules for them to avoid unfairness.

These three proposals can operate independently of my original proposal concerning appellate and original jurisdiction. But taken together with the first proposal, these proposals will give most Justices good reasons for retiring between 18 and 19 years of service. After all, if they stay on, they will no longer be hearing the Court's most important cases, they will have a full caseload in the circuit courts, they will have only one clerk to help them, and they will have much smaller retirement benefits. Under these conditions, most Justices will choose to retire.

Addendum: Joey Fishkin of this blog has pointed out in correspondence that one should combine these reforms with strict ethics requirements for the Justices-- stricter than we have today, at any rate. Otherwise rich friends and political allies could offer Justices who stayed on the Court past 19 years a handsome pension, subsidies for extra (unofficial) clerks, and so on. Joey writes: "As a political matter, it’s hard to imagine the scenario where one CAN enact measures aimed at nudging justices toward 18-year terms and CANNOT enact a more binding ethics code, which is quite popular."

The Problem In a Nutshell

Gerard N. Magliocca

Thus far, state Secretaries of State are basically saying two things about the Section 3 issue:

1. The Supreme Court should resolve this question as soon as possible.

2. I can't do anything to help the Supreme Court resolve this question soon.

Sometimes Point #2 comes in the form of "state law gives me no discretion." If so, then fair enough. I can't say what state law is on that point in every state. But sometimes Point #2 comes in the form of "I won't act without a court order." That position is in tension with Point #1.

Fortunately, we only need one state Secretary of State with discretion to declare Trump ineligible to propel the case to the Supreme Court. Time is running out.     

Section Three "Of" and "Under" Nonsense: The Sequel

Mark Graber

The persons responsible for Section Three of the Fourteenth Amendment would have laughed at the suggestion that past or future presidents who never held any other office could not be disqualified from present and future office.  That whether former president John Tyler, who became a secessionist in 1861, would have been disqualified from office had he survived the Civil War depended on whether Tyler held other state or federal offices is nonsensical.  No serious constitutionalist would interpret Section Three as exempting presidents who held no other public office absent a very clear constitutional mandate. Section Three of the Fourteenth Amendment disqualifies any person from holding “any office, civil or military, under the United States, ... who, having previously taken an oath ... as an officer of the United States, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same.” The common sense reading is that the set of offices that make persons subject to Section Three are the same as the set of offices from which persons may be disqualified.  That a traitorous former president is exempt from Section Three, but not traitorous Representatives, Senators, Judges, and Generals boggles the imagination.

Last winter in an essay for Lawfare, I demonstrated that the Fourteenth Amendment hardly compels such foolishness.  My survey of every congressional use during the first session of the Thirty-Ninth Congress of "office(s) of," "office(s) under," "officer(s) of," and "officer(s) under" would not surprise anyone with common sense.  The members of the 39^th Congress who drafted Section Three spoke of the president as “an officer of the United States/Constitution” and as an “officer under the United States/Constitution.” They spoke of the presidency as “an office of the United States/Constitution” and as an “office under the United States/Constitution.”  Some linguistic differences explain the use of "of" and "under" but there is no (not hardly any) evidence in the pages of the Congressional Globe that any member of Congress thought the president might be an officer under the United States/Constitution or an officer of the United States/Constitution, but not both. The essay paid particular attention to a House Report issued a month after the Fourteenth Amendment was sent to the state.  That report insisted that no constitutional difference existed in the constitutional usage of “officers under the United States/Constitution” and “Officers of the United States/Constitution.” The blog post summaries my conclusions.  I may elaborate in the future.

Josh Blackman and Seth Barrett Tillman are nevertheless determined to repeat their comedic performance of December 2021 when they posted on SSRN an essay claiming, contrary to the evidence and common sense, “that the President is not a Section 3 ‘officer of the United States.’” As was the case with their original piece, the new piece they have recently posted on SSRN claims to be an understanding of the original meaning of Section Three.  Their lack of cotemporaneous historical evidence for a claimed work of originalism is stunning.  The number of persons they cite in support of their conclusions who might have influenced the drafting and framing of Section Three is zero.  Blackman and Tillman fail to provide any evidence that any member of the 39^th Congress maintained that the president is not an officer of the United States or distinguished between an “officer of the United States” and an “officer under the United States.”  Blackman and Tillman do not point to any member of a state ratification convention or editorialist who, when the Fourteenth Amendment was debated, maintained that the president is not an officer of the United States or distinguished between an “officer of the United States” and an “officer under the United States.”  They do not point to any governing official, political actor, or small child who during the 1860s made a claim that remotely supports their assertions about the original meaning of an “officer of the United States.”  

Blackman and Tillman do make the odd claim that William Baude and Michael Paulsen in their influential article claiming that an originalist reading would disqualify Donald Trump under Section Three and my somewhat less famous (i.e., obscure) blog post “disregard the fact that the debates they cite from the 1860s in support of their position look back to debates from the early Republic.”  But Reconstruction Republicans insisted those debates supported their position that no constitutional difference existed between “officers of the United States” and “officers under the United States.”  Whether members of Congress in 1866 were right or wrong about their interpretation of debates in 1790s has no bearing on what members of Congress thought in 1866.

The crucial passage occurs in a Congressional Report issued barely a month after Congress sent the 14^th Amendment to the states.  That passage declares,

“But a little consideration of this matter will show that ‘officers of’ and ‘officers under’ the United States are (as said by Mr. Dallas in this Blount case, p. 277) ‘indiscriminately used in the Constitution.’” (Congressional Globe, at 3939).

My blog post intentionally omitted “(as said by Mr. Dallas in this Blount case, p. 277)” which I interpreted as a footnote in the original House Report being reproduced in a Congressional Globe that did not include footnotes (I was also madly cutting to stay within word limits).  Blackman and Tillman correctly point out that some members of Congress in 1797 disagreed with Dallas when Dallas claimed that no difference exists between “officers of” and “officers under.”  So what.  The issue is what people in 1866 believed, not whether there was a disagreement in 1797. If members of the Thirty-Ninth Congress uniformly thought Dallas was right about the Constitution, pointing out that some members of Congress in 1797 disagreed has no bearing on the original meaning of constitutional language drafted in 1866.  The evidence from the Thirty-Ninth Congress and House Report is unambiguous. Reconstruction Republicans uniformly spoke of the president as an “officer of the United States.” They never distinguished between “officers of” and “officers under” the Constitution/United States.  The committee report insisted, “It is irresistibly evident that no argument can be based on the different sense of the words ‘of’ and ‘under.’” No difference existed between “an officer ‘of’ the United States, or one ‘under’ the government of the United States,” the House Report concluded. “In either case he has been brought within the constitutional meaning of these words . . . because they are made by the Constitution equivalent and interchangeable.”

Pundits who know nothing about history risk confusing the public by citing Blackman/Tillman in efforts to engage in “balanced” journalism.  We may see posts on social media contending:

Some scholars maintain the president is both an officer of and an officer under the Constitution. Others maintain the president is not an officer of the Constitution.  Given the division of opinion, we ought not disqualify Donald Trump from holding any state or federal office.

This is reporting of the worst sort.  Powerful evidence exists that the persons responsible for Section Three of the Fourteenth Amendment believed the president was an “officer of” and an “officer under” the Constitution. If Donald Trump participated in an insurrection, he is not exempted from disqualification under Section Three because the only office he ever held was the presidency.  No evidence exists that any member of Congress, member of a state legislature, political activist, journalist, or hopeless crank during the 1860s thought a president was not an officer of the United States or that a constitutional difference existed between an officer of the United States and an officer under the United States.  History did not give Donald Trump a free "get out of disqualification card" unobtainable by any other president.  That two members of the academy make that claim is evidence of a great many things, but not evidence about what persons were thinking when they drafted Section Three of the Fourteenth Amendment.  

Kevin McCarthy’s Speakership and the Undiscovered Country

David Super

      John Boehner, Paul Ryan, and Nancy Pelosi all seem rather happy as former Speakers of the House.  Yet Kevin McCarthy seems fiercely determined not to join their number.  The question remains what price he is willing to pay to keep his gavel.  We will find out soon. 

     Because Speaker McCarthy lacks deeply-held beliefs of any kind, he naturally is not a true believer of the Freedom Caucus’s Trumpian orthodoxy.  Freedom Caucus Members from the beginning have been divided over whether he is a useful soothing public face for their agenda or a betrayer in waiting.  Rep. Matt Gaetz, one of the most McCarthy-skeptical Members from the beginning, is now trying to lay the public groundwork for a vote to oust the Speaker.  Speaker McCarthy may have thought he would reap gratitude for announcing that he was opening an impeachment inquiry into President Hunter Biden – er, I mean, President Joe Biden – but he was greeted with scorn from Freedom Caucus and adjacent Members, who complained that this should have happened long ago and in any event was no substitute for enforcing their hard line on radical domestic appropriations cuts. 

     The Speaker is becoming increasingly boxed-in, and the more he tries to stall, the more perilous his predicament becomes.  Yes, he may have bought temporary peace on this issue within his caucus by ordering an impeachment inquiry, but at a heavy long-term cost to his party.  Now that this inquiry has started, it can only end in one of three ways, each of which will harm Republicans. 

     First, the Freedom Caucus and its allies can bring articles of impeachment to the floor and prevail.  That will require all but four Republicans in vulnerable seats to vote “yes” (all but three if Rep. George Santos has taken a plea deal by then).  Voting for an evidence-free impeachment would shred the credibility of those in competitive districts who like to run as “moderates”.  It also would likely result in a prompt Senate trial after which many Senate Republicans will feel they have to vote “no”.  (Senators tend to be more risk-averse than House Members, and they are not protected by gerrymandering.)  Far from tarring the President, this would loudly exonerate him in the eyes of many as the campaign is heating up.  It also would invite awkward comparisons to the progress of former President Trump’s cases. 

     Second, the Freedom Caucus can bring articles of impeachment to the floor and fail.  That likely would cause a major rupture in the House Republican Caucus, destroying its effectiveness and sparking several divisive and expensive primaries of Members already struggling to fend off Democrats.  (House Minority Leader Jeffries will bring the popcorn.)  House Republicans will surely lose seats as a result, and, again, President Biden will powerfully be exonerated. 

     And third, vulnerable House Republicans may succeed in keeping articles of impeachment from moving forward.  It is not clear how they would accomplish this.  The usual route for vulnerable Members is to speak with caucus leadership.  Such private appeals prompted Speaker Pelosi to firmly oppose bringing articles of impeachment against President Trump over his role in Russian interference with the 2016 election.  But Speaker McCarthy has so little credibility or clout that few far-right Members likely would listen to him.  And, yet again, bottling up impeachment in committee after launching a formal inquiry would give President Biden a powerful exoneration.  Perhaps their best chance would be to launch long-shot litigation against the Administration for the release of sensitive-but-irrelevant documents and blame their inaction on (wholly predictable) litigation delays. 

     Yet the impeachment inquiry is not the most serious or most imminent threat to the Speaker’s gavel.  That is the fast-approaching government shutdown on October 1.  Here he may not have much chance to stall:  the Freedom Caucus has vociferously nixed postponing the shutdown with a stop-gap “continuing resolution” unless they receive policy concessions in advance that are non-starters with Democrats.  In particular, they are demanding that any federal or state prosecutor acting against former President Trump be defunded.  So it is hard to see how the shutdown’s start is delayed beyond October 1. 

     The Speaker may have even bigger problems within the Republican Party on appropriations than he does on impeachment.  He acceded to the Freedom Caucus’s demands to abandon the spending levels he agreed upon with President Biden in June, and the House Appropriations Committee has been moving bills whose spending levels would devastate numerous popular programs and that contain extreme, highly controversial policy riders.  It remains unclear how many of these can muster 218 votes on the House floor; attempts to move various appropriations bills in August had to be scrapped for lack of Republican support. 

     More significantly, Senate Republicans are hanging their House colleagues out to dry.  Democrats and Republicans on the Senate Appropriations Committee have harmoniously crafted a complete set of twelve bipartisan bills, some of which they reported out unanimously.  Speaker McCarthy will have considerable difficulty portraying a government shutdown as a crusade against out-of-control Democratic spending if simply passing the Senate’s bipartisan bills is an obvious option – all the more so if the House cannot pass any version of some of the appropriations bills.  Although Republican appropriators have taken the lead in this effort, it would not be possible without the tacit support of Senate Minority Leader McConnell.  Et tu, Mitch?

     So where does this all end?  The House Freedom Caucus has created a situation in which Speaker McCarthy can only move legislation with Democratic support.  And to get any Democratic support for appropriations bills, he will have to revert to the spending levels he agreed upon in June – which already require serious cuts – and drop the far-right policy riders.  That will cause him to lose Republicans in droves, which in turn will force him to win the great majority of the Democratic Caucus, as happened in June on the debt limit deal.  But getting all those Democratic votes will require still-more concessions.

     That appropriations legislation will infuriate the Freedom Caucus.  If they then do not move to vacate the Speaker’s chair after actions they have so clearly cast a betrayal, they will never have credibility to threaten to oust Speaker McCarthy. 

     A motion to vacate his chair will present Speaker McCarthy will an unpalatable choice.  He cannot possibly prevent at least five Republicans – and likely many more – from voting to remove him.  The only way he could survive is if Democrats abstain in droves.  And inducing Democrats to do that will surely require even more concessions, likely in private.  It also will mean that, after nine months of owing his gavel to the indulgence of the House Freedom Caucus, he will henceforth owe his position to the indulgence of the House Democratic Caucus. 

     At that point, Representative McCarthy will have to decide whether he prefers to be a Republican speaker dependent on Democratic votes – novel federally although with occasional precedent in the states – or to join John Boehner, Paul Ryan, and Nancy Pelosi in an undiscovered country from whose bourn no Speaker returns.  Perhaps the prospect of surrendering his gavel will so puzzle his will that it will make him rather bear those ills he has than fly to others that he knows not of?

     @DavidASuper1

On Slippery Slopes

Gerard N. Magliocca

I understand three of the broad positions on the civil and criminal cases against Trump. One is that these cases should not be brought at all. Just stick to normal politics because anything else sets a bad precedent. I also understand my position, which is that Section Three disqualification is an appropriate response in part because it is more limited (and less dangerous) than using criminal law. I also understand (though I do not agree with) the "throw the kitchen sink" approach of using any legal option available. 

But I don't understand a fourth response. Disqualification would set a terrible precedent, but bringing criminal charges does not. How can that be? Consider some of the objections raised to disqualification. It will empower partisan local officials to make mischief. It will have a chilling effect on speech, It's not part of our democratic tradition. And so on. But all of these criticisms apply with ten times more force to using the criminal law against political candidates. Yet some people do not seem too troubled by that.  

So I'd be interested in hearing from people who (1) support the criminal cases against Trump; but (2) do not support the Section Three cases against him, as to their reasons.  

Gender identity and political evil

Andrew Koppelman

Friedrich Hayek, one of the foundational theorists of the American right, warned us about the demonization of transgender people.

I explain in a new column at The Hill.

The Continuity of the Electoral and Judicial Means of Enforcing Section Three

Joseph Fishkin

Another 14th Amendment Panic

Gerard N. Magliocca

The Wall Street Journal has an editorial today entitled "The 14th Amendment Trump Panic" that argues against applying Section Three to his candidacy. The title is apt, though not for the reason that they give.

Constitutional law goes through recurring 14th Amendment panics. A panic sets in when people realize that faithfully applying the Fourteenth Amendment might overturn longstanding practice. We've seen this story with federalism, race, women's rights, marriage, and other subjects. The panic eventually abates, but not without costs. We will see what happens this time.

CFP: National Conference of Constitutional Law Scholars

Andrew Coan

Religious Liberty as a Judicial Autoimmune Disorder: The Supreme Court Repudiates Its Own Authority in Kennedy v. Bremerton School District

Andrew Koppelman

Today’s Supreme Court is so predisposed to find discrimination against religion that it declared it to be present in a case where the discriminator was obeying the Court’s own commands. In Kennedy v. Bremerton, the defendant school district and the lower federal courts had faithfully followed Supreme Court authority. The Court had, until then, consistently insisted that lower courts are bound by Supreme Court precedent. In Kennedy, the Court attacked the basis of its own authority.

The Relevance of Anti-Federalist Advocacy to Original Meaning

Andrew Coan

Damn the Torpedoes: Disqualifying Donald Trump

Mark Graber

The qualifications for officeholding are among the undemocratic, or at least antimajoritarian features of the Constitution of the United States.  Electoral College majorities are barred from selecting as president a person who is less than thirty-five years old, not born in the United States, not a citizen of the United States, not a resident of the United States for at least fourteen years, or, while or after holding various federal or state offices, participated in an insurrection or rebellion against the United States.  Good reason exists for thinking such qualifications a bad idea.  John Seary has an interesting book arguing that younger Americans ought to be constitutionally permitted to hold various offices.  Sandy Levinson and others think the constitutional bar on persons born abroad creates second-class citizens.  Perhaps electoral college majorities ought to decide whether former insurrectionists should hold office.  Section 3 of the Fourteenth Amendment may be a bad idea whose time has passed if that time ever came.  If popular majorities want to keep in office a police chief who urged the assassination of police officers or elect a president who as president fomented an insurrection in order to maintain office, the meaning of majoritarianism may be that they should have their way.  Holmes famously said his job was to lead his fellows to Hell if that was their chosen direction.

The zeitgeist among some authors seems to be that disqualifying Donald Trump under Section 3 is the bad idea, not that barring insurrectionists from office is a bad idea or that qualifications for the presidency are a bad idea.  This claim comes in two flavors.  The first is that disqualification decisions should be made by Congress and certainly not by local election judges or state secretaries of state.  Local decision-making risks minoritarian extremism and checkerboard solutions, where Trump is on the ballot in some states and not others.  The second is that MAGA forces must be defeated electorally. Disqualification will increase the possibility of a civil war or at least civil disruption in the United States initiated by violent members of the far right who perceive that their hero has been treated unfairly.

A congressional statute organizing disqualifying would be nice, but disqualification for insurrection is in legal principle no different from disqualification for being underage or not a citizen.  No one clamored for a federal statute preventing lawsuits disqualifying Barack Obama on the alleged ground that he was born in Kenya.  No one insists on a federal statute before younger Americans are disqualified.  American law at present permits checkerboard solutions, perhaps initiated by political extremists in state offices, respecting whether a candidate is constitutionally qualified for the presidency.  No one until recently complained, even though we could easily imagine a national controversy over whether a person had actually resided in the United States for fourteen years or, purely hypothetically, whether a candidate for the presidency was born in Kenya.

There is no law preventing a federal statute from being framed, debated, and passed immediately after our Representatives and Senators read this blog post (all members of Congress read Balkinization regularly).  That Congress is gridlocked is hardly a reason to mandate political actors outside of Congress stay their hand. One reason for constitutionalizing the principle that insurrectionists cannot hold office was the fear that Reconstruction Republicans might temporarily lose control of Congress and statutes mandating disqualification (and racial equality) would be repealed.  The framers may have assumed legislative primacy, but they did not think all other actors could do was complain when Congress dithered.  The Supreme Court can also swoop in and make a decision creating a rule for the entire country.  Steven Vladeck will be the first person to tell you that has been known to happen.

The MAGA crowd will be upset if Donald Trump is disqualified in some states.  Some may turn to violence.  They will be upset if Donald Trump is disqualified in all states by the procedure of your choosing.  Some may turn to violence.  They will be upset if Donald Trump loses a close election.  Etc.  They will be upset if Donald Trump loses an election that every expert agrees is not particularly close.  Etc., etc.  The MAGA crowd would be as upset if Donald Trump was disqualified because unconverted evidence demonstrated, lo and behold, that he was born in Kenya.

We are dealing with the kid in the schoolyard who threw a temper tantrum and yelled “Cheater” whenever he or she lost.  The kid yelled "Cheater" when the umpire called a close pitch a strike and when the final score was 15-1.  Finding rules that appeased that kid was pointless.  The best you could do was apply the rules you thought fair and prepare to deal with the temper tantrum when the kid lost.  

That MAGA must be defeated politically in the long run does not debar any short-term solution.  Trump will throw variations on the same temper-tantrum if he is disqualified as an insurrectionist in some states, disqualified as an insurrectionist in all states, disqualifying for being born in Kenya, or loses the presidential election from anywhere between one and four billion votes.  If you think as a matter of constitutional law or principle people who participate in an insurrection against the government should not hold government office and that Donald Trump participated in an insurrection against the government, you should endorse the Section 3 process and be prepared for the fall out that will occur no matter how MAGA forces are defeated.

Procrastination Isn't Always Wisdom

Gerard N. Magliocca

I want to respond to an argument, exemplified by Ross Douthat's recent column in The New York Times, against using Section Three to disqualify Trump. (Andrew Coan offered some thoughtful comments on that argument in a post the other day). The argument is a practical one that says exclusion is dangerous in a democracy. It's wiser to just let the voters decide. David French has a column responding that this would be "appeasing" Trump's supporters. I don't like that loaded term. I have a different take.

The "let the voters decide" argument is basically just a sophisticated version of kicking the can. Kicking the can is sometimes a wise solution. Maybe things will just work themselves out. Let's take a wait-and-see posture when the action being contemplated is broad. Thus, I understand the skepticism that some people have about disqualification, especially if they have only just started thinking about that option.

The problem is that we've tried kicking the can on Trump's misconduct more than once. And things have gotten worse, not better. Let's go back to February 2020. An argument for a Senate acquittal in the first impeachment trial was "Let the voters decide." And that made sense. It was an election year. The case that Trump committed a high crime and misdemeanor was not so clear. (Indeed, I said in a post here that I was not convinced that he should be convicted.) The voters did decide, but then Trump refused to accept that verdict and (allegedly) committed crimes and (in my view) engaged in insurrection to stay in power. 

Now let's revisit February 2021. An argument for acquittal in the second Trump impeachment was "Let the voters decide." He was out of office, so the only point of an impeachment was to disqualify him from serving again. But the next election was three years away. Was it really necessary to bar him from office? Maybe he wouldn't run again. Maybe the voters wouldn't support him. Let's kick the can again. This did not work either. Instead, we face the dilemma of a strong presidential candidate under multiple criminal indictments, which creates an unprecedented and volatile situation heading into next year.

Now many of the same people want to kick the can again. Don't apply Section Three to Trump. Let the voters decide. What could go wrong? At this point, this is just magical thinking. The third time is not the charm. 

UPDATE: I've added links to the Douthat and French columns. They are excellent presentations of the opposing views on this issue.     

The Flawed Arguments for Privileging Federalist over Anti-Federalist Advocacy as Evidence of Original Meaning

Andrew Coan

The Original Meaning of "Federalism"

Andrew Coan

The Politics of Disqualifying Trump

Andrew Coan

Ross Douthat has waded into the Section Three conversation, siding with Eric Segall against his fellow conservatives Will Baude and Michael Stokes Paulsen. In particular, Douthat worries that "not enough people do clearly see what’s risked in these kinds of proceedings, that many of Trump’s opponents still regard some form of legal action as a trump card." 

I don't agree with all of Douthat's analysis, but I share his core concern, which I expressed in a post on January 12, 2021:

What about the actual politics of invoking Section Three? One possibility, perhaps the most likely, is that a legal bar on future federal office-holding would prevent a third Trump campaign from ever getting off the ground (assuming he has not already taken care of this himself). But there is another, darker possibility. If Trump wants to run again and retains--or regains--the loyalty of his base, such a bar would effectively foreclose a large and highly motivated segment of the American public from pursuing its goals through electoral politics. That is a momentous and highly fraught step for any democracy to take. It is perilously close to banning one of the two major political parties.  

Douthat is strongly skeptical of attempts to invoke Section Three. My own view is more equivocal. Section Three is unpredictable and dangerous, but so are the alternatives. As my original post concluded:

The broader point is a familiar one. No legal strategy, however apparently decisive, is capable of dissolving the dangers inherent in our deep national divide. The only possible solutions are political, though law is a powerful, if double-edged, tool for reshaping our politics. Section Three is one more example. This is not an argument against its invocation, merely for proceeding with our eyes open.

I have changed my mind about many things in the past two years, but there is not much I would change about this post if I were writing it today.

Not Too Hot, Not Too Cold, and Not At All

Gerard N. Magliocca

One objection to applying Section Three of the Fourteenth Amendment to Donald Trump is that democracy requires that he be permitted to run. I have a draft paper responding to this argument, though I will be revising that in light of Trump's quadruple indictment and the Baude and Paulsen paper. But let me tackle one aspects of that now.

There is no limiting principle to the democracy argument against Section Three. Suppose that Trump was doing poorly in the polls. Then people would say: "Oh, he shouldn't be disqualified. There's no harm in letting him run. Democracy will resolve the issue." Now suppose that he was doing well in the polls. Then people would say: "Oh, he shouldn't be disqualified. There's a harm in not letting him run. Vox populi, Vox Dei." Where, then, is the sweet spot in between where he should be disqualified? The answer is that there is none and there cannot be one under the strong form of the democracy principle.

Some people are candid about this. Alan Dershowitz, for example, has an essay arguing that we should ignore Section Three. There are constitutional precedents for this. They are just bad ones that are almost all about the Reconstruction Amendments. I'm quite unimpressed with the claim that we should not apply the text as written because too many people will be upset. We've seen that tragedy before. 

UPDATE: Here is my latest essay on Section Three, in which I explain why an appropriate state Secretary of State would be acting in a non-partisan way by declaring Trump ineligible now.

Public-Meaning Originalism and Speaker Sincerity

Andrew Coan

The Definition of an Insurrection

Gerard N. Magliocca

One comment that people make about Section Three is that an insurrection only involves an attempt to overthrow the government or widespread resistance to government authority. But that's not true, If you look at what people in the ante-bellum era described as insurrections, events that fell well short of that standard (and well short of what happened on January 6th) were called insurrections.

Let me give a simple example. The federal criminal insurrection statute does not define that term. But there are state criminal insurrection statues that do. Here is Iowa's.

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

Does January 6th meet this standard? Of course it does. Now that doesn't mean that Iowa's law is the constitutional standard. But Iowa's more modest standard fits well within ante-bellum discourse.

More to come . . .

Interpreting Ratification

Andrew Coan

(coauthored by David S. Schwartz)

The Sleeping Giant is Awake

Gerard N. Magliocca

In 1867, Senator Charles Sumner described the Guarantee Clause as "a sleeping giant" awakened by the Civil War that gave Congress the power to erase slavery's stain. In 2023, Section Three of the Fourteenth Amendment is the sleeping giant awakened by the January 6th insurrection (and by Will Baude and Michael Stokes Paulsen) that gives courts the power to erase Donald Trump's stain. 

I am very grateful for the excellent new article by Professors Baude and Paulsen and for the incredible response to their work. (Over 28,000 downloads by last count!) Until recently, only a hanful of scholars took Section Three and its application to Trump seriously. (Mark Graber, Bruce Ackerman, Josh Blackman, Seth Barrett Tillman, and myself). Five is great for a dinner party, but not for considering a vital constitutional question. We need a lot more discussion to help the Supreme Court and the country reach the best decision possible. And make no mistake--this issue will be at the Court soon and must be decided on the merits to avoid electoral chaos.

I am also confident that Trump will have a fair opportunity to contest the claim that he is ineligible to serve in office. I say that because I testified in the Section Three eligibility hearing for Representative Marjorie Taylor-Greene last year. She also testified, both sides were represented by able counsel, and the ALJ issued a thoughtful opinion concluding that she was eligible. His ruling was affirmed on appeal. The sky did not fall by letting state officials carry out their constitutional duties.

I'll have more to say about Baude/Paulsen and some of the responses to their paper next week.     

UPDATE: I’ve tweaked this post since the first draft, in part because the download figure keeps shooting up. 

Baude and Paulsen on Section Three of the Fourteenth Amendment

Gerard N. Magliocca

The paper is here. The New York Times article is here. Here is the Abstract:

Section Three of the Fourteenth Amendment forbids holding office by former office holders who then participate in insurrection or rebellion. Because of a range of misperceptions and mistaken assumptions, Section Three’s full legal consequences have not been appreciated or enforced. This article corrects those mistakes by setting forth the full sweep and force of Section Three.

First, Section Three remains an enforceable part of the Constitution, not limited to the Civil War, and not effectively repealed by nineteenth century amnesty legislation. Second, Section Three is self-executing, operating as an immediate disqualification from office, without the need for additional action by Congress. It can and should be enforced by every official, state or federal, who judges qualifications. Third, to the extent of any conflict with prior constitutional rules, Section Three repeals, supersedes, or simply satisfies them. This includes the rules against bills of attainder or ex post facto laws, the Due Process Clause, and even the free speech principles of the First Amendment. Fourth, Section Three covers a broad range of conduct against the authority of the constitutional order, including many instances of indirect participation or support as “aid or comfort.” It covers a broad range of former offices, including the Presidency. And in particular, it disqualifies former President Donald Trump, and potentially many others, because of their participation in the attempted overthrow of the 2020 presidential election.

UPDATE: My papers on Section Three are here and here.

The Burdens of Judgment

Andrew Coan

Frederick Douglass as Constitutionalist

JB

Sandy Levinson and I have posted a draft of our latest essay, Frederick Douglass as Constitutionalist, on SSRN. Here is the abstract:

Frederick Douglass is an important symbol in American constitutional memory, cited in U.S. Supreme Court opinions and invoked by people with very different political ideologies. In this essay, we explore Douglass's constitutional philosophy by contrasting his views about fidelity to the U.S. Constitution and the rule of law with those of Abraham Lincoln and those of John Brown, who led the 1859 raid on Harper's Ferry, Virginia to incite an armed revolt against slavery. Douglass's views about the U.S. Constitution changed over the years, and were often in tension with each other, but he was at best an ambivalent constitutionalist. In many respects his views about the Constitution were closer to those of John Brown, who believed that violence was necessary to redeem constitutional government, than those of Abraham Lincoln, who advocated obedience to law in his Springfield Lyceum speech and who accepted slavery as the price of constitutional government in his First Inaugural address. Although politicians and judges today may prefer a sanitized version of Frederick Douglass, his actual views about how faithful one should be to an unjust constitution raise important questions for us today.

Can the Voters Pardon Donald Trump?

Gerard N. Magliocca

A narrative is emerging that the criminal cases against Donald Trump mean that the next election will be about whether the voters want to pardon him. David French had an op-ed in The New York Times last week in which he said that 2024 is a choice between Trump and the rule of law. 

This narrative is wrong. Trump cannot be pardoned by the voters unless he is eligible to be elected. The Section Three/14th Amendment issue must be resolved in his favor (or Congress must give him amnesty) before the voters can render a judgment. In a sense, an organic two-step process is developing to test the application of the criminal law to a major presidential candidate.

We are facing these difficult choices in part because prosecutors are exercising their discretion foolishly. The Senate's failure to convict in the second impeachment trial and Congress's failure to provide for a swift resolution of the Section Three issue created a vacuum for the criminal law to fill. But that is not an excuse. The pending cases should not have been brought. If Trump is convicted and then elected, people will stop saying Pyhrric victory and start saying Smithic victory.  

UPDATE: Some readers asked me to say more about why the criminal cases are mistaken. Since there are many cases and I have many reasons, I'll need another post for that. For now, though, consider this famous explanation of why prosecuting a former president is a bad idea.   

Careening Towards a Government Shutdown

David Super

      We are still more than two months away from the end of the federal fiscal year on October 1, yet imagining a way to avoid a partial government shutdown is getting extremely difficult.  The House and Senate are hurdling in opposite directions, and numerous Members of the House Freedom Caucus are openly reveling in the prospect of a government shutdown.  And with both sides feeling burned from this Spring’s deal to raise the debt limit, no easy path toward resolution appears available.  Not just a shutdown, but a rather long one, seems likely.  And however it ends could leave lasting changes in how legislation is enacted. 

     The Freedom Caucus, which vehemently objected to the levels of discretionary spending Speaker McCarthy agreed to in the debt limit deal, has been demanding that he break that deal.  To show that they mean business, they shut down the House over an unrelated, political messaging bill until the Speaker agreed once again to do their bidding.   

     This has meant having the House Appropriations Committee writing spending bills far below the agreed-upon levels.  Rounding up even Republican votes for spending bills requiring such deep cuts in services would be difficult.  The Appropriations Committee therefore has sought to cushion these cuts by rescinding large amounts of money for carbon emissions reductions from last year’s Inflation Reduction Act (IRA).  Further, the House Appropriations Committee has added numerous policy riders wholly unacceptable to Democrats (e.g., barring aid to LGBTQ community centers and prohibiting over-the-counter abortion drugs). 

     Although Republican Members in competitive districts have expressed unease at the funding levels, the IRA rescissions, and some of the policy riders, so far they have fallen into line and voted for the bills.  This week, the Speaker plans to bring the floor two of these bills:  the Agriculture Appropriations bill (which appears to lack sufficient funding to avoid eligibility cuts in the Special Supplemental Nutrition Program for Women, Infants and Children (WIC)) and the Military Construction/Veterans’ Affairs bill (which skimps on several politically sensitive programs).  We could see endangered Republicans finally push back, but it seems far more likely that instead Freedom Caucus Members will insist on even more extreme policy riders and the rest of the caucus will acquiesce. 

     At the same time, the Senate Appropriations Committee is moving forward on a bipartisan basis with bills that match the spending levels in the debt limit deal.  This requires some significant cuts, but nothing like the draconian House proposals.  The Committee’s leadership also has proposed to set aside more than $13 billion for emergency funding that, under budget process law, is not subject to the caps on discretionary spending.  Some of this likely would be spent on aid to Ukraine and responding to extreme weather events in the U.S. 

     With August recess approaching, everyone recognizes that neither chamber will come close to finishing its appropriations bills, much less resolving the differences between them in a House-Senate conference committee, by Sep­tember 30.  In a normal year, this would lead to a short-term continuing resolution (CR) to keep the government funded at the prior year’s levels (unadjusted for inflation) for a few weeks to allow Congress to finish its work. 

     This year, however, the House Freedom Caucus is demanding that any CR impose a one percent across-the-board spending reduction.  Some Freedom Caucus Members are suggesting that, as a partial government shutdown looms, they should raise the price of their assent to a short-term CR with either deeper cuts or policy riders.  They clearly believe that the rest of Congress is panicky about a partial government shutdown and that this gives them leverage to achieve a large part of their agenda. 

     Yet it is far from clear that Democrats would be willing to break precedent and accept a CR making nominal cuts in spending levels.  Defense hawks, too, are unhappy about across-the-board cuts because they won caps on Pentagon spending in the debt limit deal that are much more generous than those for domestic programs.  More broadly, nobody has much incentive to make concessions to get a CR with such dismal prospects of agreement on year-long appropriations when the CR ends.  If we are going to have a partial government shutdown anyway, many would say, we might as well get it over with. 

     Superficially, this government shutdown would be among the very easiest to resolve:  the two sides already have an agreement.  The parties simply need to take the Senate appropriation bills (which conform to the agreement the parties reached in May) and reallocate funds within them to reflect a compromise between House and Senate programmatic priorities.  But the House Freedom Caucus does not feel bound by that deal, and the Speaker feels more bound to please the House Freedom Caucus than he does to honor his deal with the President. 

     The ultimate resolution of the government shutdown could take any of several forms.  If public opinion turns sharply against the Republicans, Speaker McCarthy (likely under strong behind-the-scenes pressure from Senate Republican Leader McConnell) could bring to the House floor a spending bill that essentially conforms to the debt limit deal.  If he did, it would surely have more than enough Democratic and Republican votes to pass even with fierce Freedom Caucus opposition.  That, however, would lead the Freedom Caucus to shut down the House again, likely for longer than it did this summer.  The House has little pressing business this year after it finishes the spending bills, so perhaps being shut down would be tolerable. 

     If Speaker McCarthy decides to stand by the Freedom Caucus, Democrats could file a bill conforming to the debt limit deal (or simply the Senate appropriations bills) with a rule to bring that legislation to the floor and then seek 218 Members’ signatures on a discharge petition.  That would require obtaining the signatures of four House Republicans.  If the partial government shutdown is polling very badly and their seats are looking quite vulnerable, perhaps four would sign the discharge petition and then vote for the bill.  The Freedom Caucus, however, would then demand that these “RINOs” be stripped of their committee assignments and cut off from the Party’s support during likely primary challenges.  Few Members will be so sure they are doomed in the general election that they will subject themselves to brutal primaries and the loss of all privileges within the House.  This is why, to date, every supposed “rebellion of the moderates” has proven to be so much sound and fury signifying nothing.  Few Members of Congress are willing to be but a walking shadow, a poor player that struts and frets their hour upon the stage and then is heard no more. 

     If polling goes against the Democrats, they could concede to some of the Freedom Caucus’s demands.  Quite apart from their views on the substance, however, they have strong institutional reasons not to do so even if the government shutdown is causing great practical and political damage.  Repeat players cannot allow their counterparts to disregard deals that they have made.  Speaker McCarthy knew the Freedom Caucus would be enraged when he made the debt limit agreement; if Democrats allow him to disregard that deal, the same thing will keep happening because the Freedom Caucus has no shortage of rage and the Speaker has no shortage of fear.  So Democrats are wildly unlikely to give significant ground. 

     More dramatically, the partial government shutdown could lead to a procedural re-alignment in the House.  Speaker McCarthy could make a deal with Democrats not to bring legislation to the floor under abusive, one-sided rules (something every speaker, Democratic and Republican, has done since time immemorial).  And in return, the Democrats could promise to supply the votes to allow legislation to reach the floor (even if they later vote against that legislation on the merits) and to abstain in any vote to declare the Speaker’s chair vacant.  That would not by any means be a coalition government:  Speaker McCarthy and his majority would continue to pursue, and mostly pass, far-right initiatives.  But Democrats would get up-or-down votes on their proposals, too, and no one faction could lock down the House.  And the partial government shutdown would end.

     Finally, the government shutdown might not end in legislation at all.  The Fiscal Control Act that raised the debt limit also provided that an automatic CR would take effect January 1 if Congress has not enacted all twelve annual appropriations bills by that time.  The automatic CR would give every program 99% of the funding it received in fiscal year 2023.  For non-defense programs as a group, that would be dramatically better than what the House Republican appropriations bills offer; for Defense, that would be meaningfully worse.  If it becomes clear that no comprehensive deal is possible, the parties might agree on relatively minor shifts of funding within each category. 

     Whether the Speaker directly defies the Freedom Caucus, a few endangered Republicans break ranks to sign a discharge petition, the Democrats acquiesce in the principle that the Speaker is not bound by his own deals, or the mechanics of controlling the House floor change, this government shutdown will significantly change the way we do politics in this country, possibly for a long time.  With the Freedom Caucus feeling betrayed and heavily dug in, a more mundane resolution to the shutdown seems improbable unless Congress simply allows the automatic CR to take effect.  And Congress passing no particularized appropriations bills for a year would also be a sharp break with precedent – and a likely if unfortunate model for future years.   

     Partial government shutdowns are bad for almost everyone except attention-seeking House Freedom Caucus Members (and perhaps a law professor preparing to submit an article on Preventing Fiscal Calamity to the law journals).  But this shutdown seems very nearly inevitable.

     @DavidASuper1