Accidents of History?

Guest Blogger

For the symposium on David S. Schwartz, The Spirit of the Constitution: John Marshall and the 200-Year Odyssey of McCulloch v. Maryland (Oxford University Press, 2019).


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Posted 9:30 AM by Guest Blogger [link]

Marshaling McCulloch

Richard Primus

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Posted 9:30 AM by Richard Primus [link]

Symposium on David Schwartz, The Spirit of the Constitution

John Mikhail

This week and next at Balkinization we are hosting a symposium on David Schwartz’s new book, The Spirit of the Constitution: John Marshall and the 200-Year Odyssey of McCulloch v. Maryland (Oxford University Press, 2019).

We have assembled a terrific group of commentators, including Mark Graber (Maryland), Mark Killenbeck (Arkansas), Kurt Lash (Richmond), Sanford Levinson (Texas), Christina Mulligan (Brooklyn), Victoria Nourse (Georgetown), Richard Primus (Michigan), Franita Tolson (USC), and myself.

At the conclusion, David will respond to the commentators.
Posted 9:00 AM by John Mikhail [link]

How to Regulate (and Not Regulate) Social Media

JB

I've posted my latest essay, How to Regulate (and Not Regulate) Social Media, on SSRN. Here is the abstract:

This essay is the text of a keynote address given at the Association for Computing Machinery conference on Computer Science and Law on October 28, 2019.

To understand how to regulate social media you must first understand why you want to regulate it.

We should regulate social media companies because they are key institutions in the twenty-first century digital public sphere. A public sphere does not work properly without trusted and trustworthy intermediate institutions that are guided by professional and public-regarding norms.

The current economic incentives of social media companies hinder them from playing this crucial role and lead them to adopt policies and practices that actually undermine the health and vibrancy of the digital public sphere.

The point of regulating social media is to create incentives for social media companies to become responsible and trustworthy institutions that will help foster a healthy and vibrant digital public sphere. It is equally important to ensure that there are a large number of different kinds of social media companies, with diverse affordances, value systems, and innovations.

Treating social media companies as state actors or as public utilities does not solve the problems of the digital public sphere. One might create a public option for social media services, but this, too, cannot serve as a general solution to the problems that social media create. Instead, this essay describes three policy levers that might create better incentives for privately-owned companies: (1) antitrust and competition law; (2) privacy and consumer protection law; and (3) a careful balance of intermediary liability and intermediary immunity rules.


Posted 10:31 AM by JB [link]

The Case for Basic Health

Joseph Fishkin

We seem to be approaching an apotheosis of liberal health care angst, as the irresistible force of the appeal of truly universal health care meets the immovable object of Democrats’ desire to make double-triple-sure not to lose the 2020 election. Replacing our current shambles of a health care system with something much simpler and more efficient and equitable makes all kinds of moral, economic, practical, and fiscal sense. However, as Elizabeth Warren is discovering, when you actually spell out a plan for Medicare for All, you start taking heavy fire fast. (And we’re still in the friendly-fire phase—the cynical and deliberately false attacks in the general election will be worse.)
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Posted 6:06 PM by Joseph Fishkin [link]

DACA at the Supreme Court

Guest Blogger

Andrew Pincus
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Posted 12:14 PM by Guest Blogger [link]

Fact Witnesses in the Impeachment Trial

Gerard N. Magliocca

Some of the witnesses that House investigators want to hear from are not testifying because the President is telling them to stay quiet. Before the House votes on articles of impeachment, the courts may rule on whether the President can do this, but who knows. When the Senate trial begins, though, the calculus shifts in favor of testimony.

The President's main explanation for not cooperating now is that the House inquiry is a kangaroo court. In the Senate, though, he cannot make that claim. Republicans control the chamber. The Chief Justice presides. The President gets lawyers and most of the machinery of due process. If, then, the managers from the House call John Bolton (let's say), on what ground can the President refuse?

One answer is executive privilege, but that is not a great argument. It is not clear that executive  privilege applies in an impeachment proceeding at all. Even if executive privilege does apply, the argument for executive privilege is weaker in a Senate trial. Since the House can investigate anything during the impeachment process, there is an argument that confidential conversations that should not be divulged will be and that the House is just engaged in a fishing expedition. In the Senate, though, articles of impeachment should narrow the scope of any potential testimony. Many matters covered by executive privilege will simply be deemed irrelevant at trial. For matters that are relevant to the charges, a fair trial is impossible without full testimony. (There's also the problem that presidential refusal may reinforce an obstruction of Congress article of impeachment, assuming that the House approves one).

If I a right, then the means that the trial will be long. Some of witnesses before the Senate will not have testified before the House. Thus, both sides will need time to prepare for their questioning in a way that will not be true for the people who testify before the House.  
Posted 10:09 AM by Gerard N. Magliocca [link] (52) comments

The ERA Is on the Way

Gerard N. Magliocca

Yesterday Democrats won control of the Virginia Legislature. Ordinarily this would matter only to people in Virginia. But not this time. The Virginia results mean that next year the question of whether the Constitution contains a Twenty-Eighth Amendment will come before Congress.

Virginia is one of the states that has not ratified the proposed Equal Rights Amendment. Last year, efforts by Democrats in the state legislature to obtain ratification were blocked. With Democrats in  control, though, ratification is likely in 2020. A ratification by Virginia would mean, by one counting method, that three-quarters of the states (38) will have ratified the ERA as required by Article V.

If Virginia ratifies the ERA, a petition will be presented to the Archivist of the United States, David Ferriero, seeking formal recognition of the ERA as the Twenty-Eighth Amendment. The Archivist will almost certainly deny the request. He can cite two reasons. First, there is doubt about whether 38 states have ratified the ERA because in the 1970s five states that ratified attempted to rescind their yes votes. Are these repeals valid? Second, Congress passed a joint resolution in the 1970s stating that the deadline for states to ratify the ERA expired in 1982. The Archivist cannot ignore the deadline unless he concludes that Congress lacks the authority to set deadlines by joint resolution.

The action will then move to Congress. Resolutions are already pending in the House and in the Senate to repeal the ratification deadline for the ERA. As I explain in this article that will appear shortly in Rutgers Law Review, Congress has the authority to count states as ratifying an Article V amendment even when those states subsequently rescinded their ratification. Likewise, Congress also can change a ratification deadline listed in a prior joint resolution. Accordingly, Congress can by joint resolution declare the ERA part of the Constitution once Virginia ratifies. (Whether they should is a more complicated question that my article discusses at length.) The Article V process is unusual in that neither the President nor the Supreme Court may review Congress's decisions.

At a minimum, this means that members of Congress will have to take a position next year on ERA ratification. One can also imagine the House of Representatives passing a resolution saying that the ERA is part of the Constitution. The Senate is probably not going to follow, especially since any such resolution may be filibustered. Still, look for the ERA to become a campaign issue across the country.

There is one final factor to consider. In the midst of this discussion, the Supreme Court will hand down its decisions on whether sex discrimination under Title VII of the Civil Rights Act of 1964 includes discrimination based on sexual orientation and/or transgender status. If the Court says that sexual orientation and/or transgender status is covered by the word "sex," that arguably means that the ERA would also apply to those categories. This possibility might, in turn, change how the Court rules in the Title VII cases. The ERA did not come up in oral argument, though the point was made in at least one of the amicus briefs. Some of the Justices might pay more attention to this issue, though, after Virginia ratifies and Congress gets involved.
Posted 9:10 AM by Gerard N. Magliocca [link] (69) comments

Symposium on Robert Tsai, Practical Equality: Collected Posts

JB

Here are the collected posts for our Balkinization symposium on Robert Tsai’s new book, Practical Equality: Forging Justice in a Divided Nation (Norton 2019).

1. Mark Graber, Introduction to Symposium on Robert Tsai, Practical Equality.

2. George Thomas, “Low but solid ground in the struggle for equality”.

3. Susan Burgess, The People Who Don't Fit In.

4. Nelson Tebbe, The Dissent Option.

5. Mark Graber, Practical Equality and Rotten Compromises.

6. Robert Tsai, How Do We Measure Good Progress?

Posted 9:30 AM by JB [link]

How Do We Measure Good Progress?

Guest Blogger

For the symposium on Robert Tsai, Practical Equality: Forging Justice in a Divided Nation (Norton 2019).

Robert Tsai

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Posted 9:30 AM by Guest Blogger [link]

Academic Constitutional Theory and Judicial Constitutional Practice

Mark Tushnet

Posted 9:34 AM by Mark Tushnet [link]

Don't Mess with the Deep State

Mark Tushnet

Posted 8:48 AM by Mark Tushnet [link]

The military deep state

Andrew Koppelman

Posted 10:39 PM by Andrew Koppelman [link]

Can the Senate Subpoena the President?

Gerard N. Magliocca

Suppose the House impeachment managers subpoena the President in the Senate trial. Would he be legally obligated to obey and be questioned? The Chief Justice may have to decide this issue.

An impeachment trial is not a criminal trial, where the privilege against self incrimination applies. The Senate proceeding is more analogous to a civil trial, where there is no such privilege unless the testimony in question might plausibly lead to criminal charges. As far as I know, neither President Johnson nor President Clinton were subpoenaed in their trials. I'm not sure why. The managers may have thought that the testimony would not help their case. Or they might have thought that the President could not be subpoenaed when he was the accused due to separation of powers concerns.

If the Chief Justice rules that the President can be subpoenaed, then he could, of course, refuse to comply. But this presents a problem. If the House of Representatives votes out an impeachment article based on the President's alleged obstruction of Congress (by refusing to comply with House subpoenas), he would be making that problem worse by also defying a Senate subpoena.
Posted 7:54 PM by Gerard N. Magliocca [link] (75) comments

The Umpire Analogy Does Not Work for Impeachment

Gerard N. Magliocca

I want to make a couple of additional points about the Chief Justice's role in the upcoming trial. One is that, as I read Article I, the Chief Justice is required to preside. He cannot recuse, as one article that I read today suggested. More important, some are suggesting that a Chief Justice plays a limited role in an impeachment trial, more akin to an umpire.

Let's be clear here. The Chief Justice could choose to exercise his broad discretion with restraint. He would then be following the model of his old boss Chief Justice Rehnquist during the Clinton trial. But Roberts could instead follow the precedent of Chief Justice Chase, who took a more muscular view of his authority in Andrew Johnson's impeachment trial. The upcoming trial will look more like the Johnson version than the Clinton version (for instance, there will be fact witnesses), which lends itself more to following Chase's example.

A broader point is in order here. The Chief Justice's famous comparison of a Justice to an umpire (with the connotation of restraint) strikes me as a poor fit with the role of a trial judge. I think many trial lawyers would scoff at the suggestion that trial judges are just umpires. Instead, these judges exercise enormous discretion depending on their view of the case. Appellate judges are (or ought to be) more restrained, but the Chief Justice will not be an appellate judge in the Senate.
Posted 11:12 AM by Gerard N. Magliocca [link] (91) comments

Practical Equality and Rotten Compromises

Mark Graber

Robert Tsai’s Practical Equality: Forging Justice in a Divided Nation offers practical advice for progressives living in temporary hard times.  Progressives when they cannot achieve a full loaf should eschew compromises that lock-in inequalitarian commitments and find strategies that move the law forward while leaving open the possibility of further progress.  Brown v. Mississippi (1936) is an excellent illustration of that strategy.  The Supreme Court in that case took a stick away from segregationists by ruling out certain brutal modes of seeking confessions, almost exclusively used when African-Americans were suspected of crime.  The justices did not, however, lend any legal sanction to other practices that promoted racial subordination in the mid-twentieth century polity.  Craig v. Boren (1976) might serve as an example of the strategy Tsai would have progressives avoid wherever possible.  The Supreme Court in that case raised the standard for gender discriminations from rational scrutiny to immediate scrutiny.  In doing so, however, the justices set a precedent against raising the standard for gender discriminations to strict scrutiny.

Practical Equality provides sound advice for progressives who are experiencing temporary setbacks on the road to Damascus.  Professor Tsai has a rich grasp of constitutional law, constitutional theory, constitutional politics and constitutional history, all of which are employed in his effort to move American politics progressively forward during times in which progressives need allies to achieve even modest degrees of progress.  He points out how in the past and at present moving to various consensus norms can be means of achieving greater political equality.  Progressives can substitute procedure for substance.  They can require that African-Americans be treated fairly in the criminal justice system even when they cannot destroy the vestiges of Jim Crow.  Progressives can substitute a safer equality for a greater equality.  They can seek to wipe out racial discrimination in the capital punishment charging process even when they cannot wipe out racial discrimination in the capital punishment sentencing process.  They can insist progressive reformers speak freely even when too many in the audience are unwilling to listen to their blandishments.

Professor Tsai’s advice works best during temporary hard times for progressives.  Progressives do not want to lock-in inegalitarian practices during these periods because they expect in the near future to make greater progress.  This greater progress is in part a result of expected greater increases in public support for egalitarian practices.  The more persons over time who support same-sex marriage, the less the backlash to laws and judicial decisions legalizing same-sex marriage.  This greater progress is also in part a result of expected greater precedential support for more egalitarian decisions.  Brown v Mississippi can be used to provide precedential support for striking down other brutal practices in the criminal justice system directed primarily at persons of color.

Practical egalitarian solutions may nevertheless privilege political lock-ins by sanitizing inegalitarian practices even as they avoid legal lock-ins by keeping broader legal questions open.  Consider the constitutional politics of Brown v Mississippi  rather than only the constitutional law.  Students of southern politics have documented how constitutional politics in the former Confederacy was often a struggle between elites who favored a kinder, gentler racism that would not alienate northerners thinking of doing business or perhaps moving to Dixie and a more populist racism embodied by lynch law.  Prominent southern elites may have opposed national lynch laws, but the decline of lynching in the twentieth century was partly due to the efforts of those favoring a kinder, gentler racism.  Indeed, Professor Tsai points out that Brown drew a dissent in the Mississippi state courts from a jurist who was no doubt a kinder, gentler racist.  This constitutional politics highlights how judicial decisions forbidding brutal practices in the criminal justice system that from a legal perspective promoted a more egalitarian order may also from a political perspective have strengthen Jim Crow by eliminated the worse abuses of a horribly abusive practice in ways that privileged more elite commitments to white supremacy.  Racism without extra-legal violence has more supporters than racism enforced by mobs.  Michael Klarman details how the death of segregation was hastened considerably by the backlash to Brown v. Board of Education that substantially weakened the power and authority of kinder, gentler racists.  Southerners willing to live with Brown v. Mississippi had to be ousted from authority for northerners to insist on Brown v. Board of Education.

Practical equality solutions risk picking the low-hanging fruit in ways that may make other harvests politically more difficult.  Consider capital punishment.  Most progressives are opposed to capital punishment on principle. Many non-progressives are queasy about capital punishment because they worry about executing innocent persons, think some classes of persons (teenagers, the mentally ill) ought not be executed, or believe that capital punishment is imposed in ways that discriminate against persons of color.  If given a choice between capital punishment as practiced in the United States and no capital punishment, the queasy moderates might choose no capital punishment.  If, however, a series of laws and judicial decisions sanitize capital punishment so that the chance of executing innocents is minimized, the execution of sympathetic individuals is forbidden and procedures are devised to reduce racism, the result might be increased support for capital punishment.  Sometimes the effort you spend running a marathon makes the last miles easier; sometimes that effort makes the last miles more difficult.  The same may be true for progressive reform.  In theory, the next progressive steps are left open.  In practice, moving part way to the goal may make further movement more difficult.  Ask proponents of the ERA what happened when the most offensive gender discriminations were removed from statutory books.

Rotten compromises may seem attractive during times when locking in minimal commitments to equality seems more important than avoiding locking in inegalitarian commitments. Reconsider Plessy v. Ferguson from the perspective of the turn of the twentieth century.  Professor Tsai and every other contemporary scholar condemn that decision for locking in the principle that racial segregation was constitutional.  Plessy, however, also locked in or at least provided foundations for the principle that segregation had to be equal.  As Democratic speeches during the debates over the Civil Rights Act of 1871 and 1875 made clear, whether segregation had to be equal was not clear under the Fourteenth Amendment.  White supremacists in Congress insisted that Congress had no power to regulate such domestic matters as education and transportation, that states might bar children of color from school altogether.  No one will pretend that segregation was equal in any way.  Nevertheless, a fair claim can be made that for fifty years, persons of color in the Jim Crow South got a little more and only a little more than they might have gotten because at the very least everyone had to pay lip-service to the principle that segregation was equal and starkly inegalitarian forms of inequality could be legally challenged, sometimes successfully.

Practical Equality provides progressives with an extraordinary menu of possibilities for making progressive gains without making progressive sacrifices, but not with the means of making the really rotten compromises that national divisions may compel.  Compromise may be the attractive alternative when more benefits can be locked in by locking in perceived evils than by practical equality solutions.  Segregated education may be better than no education. When the wind is blowing away from progressive notions of equality, locking in some progressive policies in practice may be a better alternative than keeping progressive utopias open in theory.  Most controversially, to the extent constitutions are compromises with evil rather than blueprints for the good society, forging justice in a divided nation may require the really rotten bargains that enable people with very different conceptions of equality and the good society to share the same civic space.





Posted 6:54 AM by Mark Graber [link]

Traditionalism and Anti-Novelty as Modes of Constitutional Interpretation: The Case of Tax-Exemption for Churches

Mark Tushnet

Posted 11:04 PM by Mark Tushnet [link]

The Dissent Option

Guest Blogger

For the symposium on Robert Tsai, Practical Equality: Forging Justice in a Divided Nation (Norton 2019).

Nelson Tebbe


Posted 9:30 AM by Guest Blogger [link]

The Proposed Senate Resolution is Unconstitutional

Gerard N. Magliocca

Earlier today, Senator Graham announced that he would introduce a Senate resolution condemning the House impeachment inquiry as unconstitutional. Senator's Graham's proposed resolution is itself unconstitutional. The Senate cannot carry out its constitutional obligation to "try all impeachments" if it is on record as pre-judging the case before any articles of impeachment have been drafted. Courts do not declare the guilt or innocence of someone before charges have even been filed. Talk about a kangaroo court.

Moreover, the Senate's own precedents deny the power that Senator Graham is claiming. In 1834, the Senate censured President Jackson for his conduct regarding the National Bank. Three years later, the Senate reversed that conclusion in the Expunging Resolution. The Expunging Resolution, which still stands, was based in part on the argument that the Senate could not pre-judge a possible impeachment from the House of Representatives. In 1834, the Senate had declared Jackson guilty, whereas Senator Graham wants his colleagues to declare the President not guilty. But the principle is the same. As an institution, the Senate is only permitted to express its views on potential impeachable conduct during an impeachment trial.

Individual senators are free to express any opinions that they want. But if Senator Graham's brings his resolution to the floor, the Senate parliamentarian should rule it out of order.

UPDATE: The fact that the House of Representatives also has the sole power of impeachment also implies that the Senate cannot comment on a pending inquiry.
Posted 12:16 PM by Gerard N. Magliocca [link] (78) comments

The People Who Don't Fit In

Guest Blogger

For the symposium on Robert Tsai, Practical Equality: Forging Justice in a Divided Nation (Norton 2019).

Susan Burgess

Robert Tsai begins by dedicating his new book to “the misfits and the losers.”  This put me in the mind of a quotation from Margaret Atwood that is framed on my office desk: “Every utopia faces the same problem:  what do you do with the people who don’t fit in?”  Atwood has written several novels about utopias that have gone badly wrong, most famously in The Handmaid’s Tale, which has been made into a feature-length film twice, as well as a very popular television series that is currently in its third season on Hulu. As I was writing my review of Tsai’s book, I was also finishing Margaret Atwood’s new novel, The Testaments, which is both a prequel and a sequel to The Handmaid’s Tale.  In an odd sort of way, these two works go together go together quite nicely.




Posted 9:30 AM by Guest Blogger [link]

An Especially Harsh Government Shutdown is Increasingly Likely

David Super

     Prior to the end of Fiscal Year 2019 on September 30, Congress passed and the President signed a short-term continuing resolution (“CR”) to keep the federal government operational through November 21, 2019.  At the time, the House had passed ten of the twelve annual appropriations bills needed to fund the federal government (all but the intensely controversial Homeland Security bill and the parochial Legislative Branch bill).  Then, and indeed even today, the Senate had passed none of the twelve bills. 

     The hope has been that the House, the Senate, and the President would be able to agree on full-year funding levels by November 21 or, failing that, a short additional CR would provide the time needed.  Increasingly, however, it is appearing that no such agreement may be achieved and another partial government shutdown is likely.  Moreover, if a shutdown does occur, it could do considerably more damage even than the one that began in December 2018. 

     Several factors make an appropriations impasse seem increasingly likely.  First, an immense amount of work remains to be done.  Not only has the Senate not enacted a single appropriations bill – it is trying to move several this week and possibly next – but the House and Senate have yet to agree on even the broadest outlines of how to divide up the available funds. 

     Each year when a budget resolution or budget agreement sets an overall limit on the amounts that may be appropriated for defense and non-defense discretionary programs, the House and Senate Appropriations Committees divide up those funds among their twelve subcommittees.  This year, the House and Senate did so quite differently.  The House would largely divide the funds consistently with past years.  The Senate Appropriators, however, would significantly redistribute funds away from anti-poverty and other human services programs.  Thus, despite a modest increase in total domestic discretionary funding for 2020 relative to 2019, the Senate Appropriations Committee would cut programs within the jurisdiction of its Labor-HHS-Education Subcommittee.  Child care, Head Start, job training, family planning, and education for disadvantaged children would be among the important losers, as would the operating budget of the Social Security Administration. 

     Some House-Senate disagreements over subcommittee allocations are common – although generally not ones of this magnitude – but ordinarily the two chambers reconcile their differences much earlier in the year.  Until House and Senate appropriators do so, little work on drafting individual appropriations bills is possible:  subcommittees cannot start to divide up their pots if they do not know how big their respective pots will be.  The source of the delay is mysterious; it may reflect Senate Republicans trying to determine whether the Administration has any particular targets it wants them to meet. 

     Second, as the Administration rolls out more and more rules and executive orders marking sharp breaks from the past, the number of substantive “riders” – restrictions or prohibitions on appropriations bills – that Democrats will be under pressure to pursue will increase.  Similarly, as new disclosures about how the Administration has conducted foreign policy in Ukraine, Syria, and elsewhere emerge, Members of both parties may want to include more mandatory language in appropriations bills rather than relying on general legislation prohibiting impoundments of appropriated funds.  This will multiply the number and complexity of disagreements that could lead to an impasse. 

     Third, President Trump’s declaration of a state of emergency, and his transfer of money from various military construction accounts to support border wall construction, greatly expands the scope of the issues in any appropriations negotiations.  Not only must opponents of spending money on the border wall focus on that account but they also will want to defund, or statutorily protect from transfer, a wide range of other accounts that the President might raid.  Some Republicans who favor the border wall may nonetheless ally with Democrats to protect against transfers out of military construction accounts important to them.

     Finally, negotiations on an appropriations deal seem likely to interact unfavorably with the impeachment process.  One might imagine that the President would seek to avoid alienating persuadable voters and Senate Republicans with a government shutdown.  To date, however, the President seems to be counting on fiery support from his base to scare Senate Republicans with the threat of primary challenges.  That is likely to make him even more reluctant to compromise.  He also has seemed unable or unwilling to compartmentalize his disputes with House Democrats, who naturally will be among the major parties to a budget negotiation.  The Democrats, for their part, may have trouble persuading their constituents that they need to make deep compromises to a President who seems on the ropes.  And some may be inclined to defund officials or agencies that have refused to comply with subpoenas.

     If a partial government shutdown does occur, it is likely to be even more destructive than the one last winter.  The Congressional Budget Office (CBO) estimated that that shutdown cost the economy $11 billion.  This likely does not include a variety of non-monetized effects, such as loss of morale to federal workers and inefficient or failed government procurement by agencies that do much of their work by contract and were left with only a little over half a year to seek bids and award contracts before the close of the fiscal year.  Nonetheless, a new shutdown is likely to be worse in several respects.

     First and most obviously, it could well last longer as compromise remains elusive for the reasons just discussed.  Indeed, it may be that the President will be wholly unwilling to compromise with House Democrats so that the shutdown continues until twenty Republican senators (and, even more difficult, sixty Republican representatives) are willing to vote to override a presidential veto of funding legislation.  (Of course, if the Senate can muster a two-thirds majority to re-open the government, that might ease the way toward other votes requiring similar super-majorities.)

     Second, several major appropriations bills had already been signed into law prior to last winter’s partial shutdown.  This year, as noted, no appropriations bills have even passed the Senate, much less made their way through a conference committee and across the President’s desk.  Much more of the government will be affected.

     Third, some programs simply cannot wait for their funding this year.  Chief among these is the decennial census.  Census spending is heavily front-loaded in the fiscal year, with activities starting in Alaska in January and in the rest of the country soon thereafter.  If the Census Bureau lacks funds to hire enumerators and take other steps to ensure broad participation, the quality of this Census may be irretrievably compromised.  That might not bother the Trump Administration, but it should alarm the rest of us.  In addition, Medicaid funding is approaching a cliff in Puerto Rico and other U.S. territories that lack the secure funding stream available to the fifty states and Washington, D.C.  If they do not receive new funding soon, they will have to shut down much of their programs in January. 

     Finally, in the months since the last partial shutdown ended, the U.S. Government Accountability Office (GAO) has ruled that some of the steps the Trump Administration took to moderate the effects of that shutdown were unlawful.  Last month, GAO ruled that a contorted scheme to pay February’s SNAP food assistance benefits in January violated the Anti-Deficiency Act.  (A more straightforward approach to continuing SNAP benefits was available, but for whatever reason the Administration did not take it.)   And Tuesday, GAO ruled that the Administration’s order for IRS employees to return to work to process tax refunds also violated the Act.  The Anti-Deficiency Act provides serious criminal penalties for knowing and willful violations.  These GAO opinions undermine any federal employees’ ability to claim that these schemes, if attempted again, were inadvertent violations of the Act.  The Administration therefore may find it more difficult to persuade federal employees to implement policies to soften the impact of any government shutdown.  The President’s continued harsh criticism of federal employees also might cause some to question whether he would sign legislation paying them retroactively for unpaid work they did as “essential” workers during a partial shutdown.  
Posted 12:31 AM by David Super [link]

“Low but solid ground in the struggle for equality”

Guest Blogger

For the symposium on Robert Tsai, Practical Equality: Forging Justice in a Divided Nation (Norton 2019).



Posted 10:00 AM by Guest Blogger [link]