Orders, legal and illegal

Eugene R. Fidell

Hypotheticals worth pondering include whether General Milley could have been prosecuted had he refused to walk with President Trump to the church door, or whether an order to paint over “Black Lives Matter” on a city street would have been legal, if the president asserted that these actions served the military purpose of force protection, including protection of the commander-in-chief at or near the White House. Recently, the Marine Band was required to play at what certainly seemed to be a campaign-related White House event. Would the piccolo player have had a defense if she refused to play John Philip Sousa’s immortal “Stars and Stripes Forever”?

Labels: disobedience, orders, unlawful orders

Asking the Wrong Question in the ACA Case

Marty Lederman

Jason's post this morning is entitled "Is the Individual Mandate Without Tax Consequences Unconstitutional?"

The answer to that question is:  Yes.  If one treated Chief Justice Roberts' opinion in NFIB v. Sebelius as controlling precedent--as a majority of the Court would do, even if technically it was dicta--then of course an "individual mandate" to maintain Obamacare-compliant health insurance would be unconstitutional.  

But that's not the question raised in California v. Texas.  The determinative question is, instead, whether the 2017 Congress, and President Trump, enacted a legal mandate that individuals must maintain Obamacare-compliant health insurance.

And the answer to that question is:  Of course they didn't.  Indeed, as I've argued repeatedly on this blog (see here, for instance), and as Mike Dorf and I explain in an amicus brief we filed in the case, the Court has rarely, if ever, confronted an easier question of statutory interpretation.  

To be sure, three federal judges and the Solicitor General of the United States have already insisted that, contrary to Donald Trump's and Mitch McConnell's repeated boasts that they eliminated the "individual mandate" and rendered the ACA less coercive than it was before 2017, in fact Trump and the GOP Congress directly flouted the NFIB majority's constitutional judgment by imposing a mandate to maintain insurance.

And I'm afraid it's entirely possible that at least some of the Justices of the Supreme Court--perhaps even a majority--might conclude likewise.  

If they do, that'll say something about the current state of the Court--and, perhaps, about current trends in "textualism."  But it won't make the argument any less preposterous.  As Mike and I write in our brief, to read the 2017 amendment in that way would be to accuse Trump and the Republican Congress of "brazenly enacting a law that a majority of Justices of th[e] Court, and a majority of those who voted for the amendment, believed to be beyond the power of the federal Government to enact," thereby "turn[ing] the constitutional avoidance canon on its head."  Our brief concludes:

It is exceedingly unusual, to say the least, for the federal political branches to enact laws in flagrant disregard of this Court’s constitutional holdings or judgments.  On the rare occasions where they’ve done so, it has typically been to express profound constitutional disagreement with the Court—such as when the 37th Congress and President Lincoln enacted a law declaring that “there shall be neither slavery nor involuntary servitude in any of the Territories of the United States,” Act of June 19, 1862, ch. 111, 12 Stat. 432, as a direct rebuke to this Court’s pronouncement in Dred Scott v. Sandford, 60 (19 How.) U.S. 393, 432-52 (1857), that Congress lacked authority to do just that.

This is not one of those rare cases.

New comments policy on the blog

JB

 In 2009 I adopted a policy of turning off comments on the blog by default, but allowing individual members of the blog to permit comments.

Starting this week, in those posts where comments have been turned on, only other members of the blog may post comments.

Is the Individual Mandate Without Tax Consequences Unconstitutional?

Jason Mazzone

Vik Amar, Evan Caminker and I offer our analysis of the question before the Supreme Court in California v. Texas as part of our Justia series on the case. 

The Electoral College Is Not Broken

Guest Blogger

For the Balkinization Symposium on  Alexander Keyssar, Why Do We Still Have the Electoral College? (Harvard University Press, 2020), and Jesse Wegman, Let the People Pick the President: The Case for Abolishing the Electoral College (St. Martin's Press, 2020).

Franita Tolson

Alexander Keyssar’s Why Do We Still Have the Electoral College and Jesse Wegman’s Let the People Pick the President: The Case for Abolishing the Electoral College—invite us to engage in a thought experiment in which we assume the Electoral College works exactly as intended.  After all, one can only conclude that our failure to squarely address the core institutional defects of the Electoral College and our subsequent turn to politics (or normal legislation) to paper over these defects undermines arguments the Electoral College is broken.  More pointedly, to the extent that the Electoral College was actually intended to be a reflection of pure politics post-Twelfth Amendment—and there is substantial evidence of this—the claim that the system is broken is even less compelling.  Instead, the Electoral College reflects either the best or the worst of our politics; when we are antidemocratic or antimajoritarian or dysfunctional, so too is the Electoral College.

William Brennan and Election Year Nominations

Gerard N. Magliocca

Let's enter the wayback machine and return to 1956. In September, Justice Sherman Minton retired from the Court. Minton was a Democrat named to the Court by President Truman. His health was poor, though he lived until 1965. Apparently Justice Minton retired when he did because he had reached fifteen years of overall judicial service and was therefore entitled to a full pension. Justice Minton was no fan of President Eisenhower and supported Adlai Stevenson in the upcoming presidential election. Still, he did not see any issue in retiring shortly before the election and giving Eisenhower a vacancy. Such a scenario is hard to imagine today, to say the least.

What did Eisenhower do with the vacancy? He nominated William Brennan. Why? Mainly because Brennan was a Catholic Democrat, and Eisenhower thought this would help him with that constituency. But he gave Brennan a recess appointment. After Eisenhower was reelected, the recess appointment was renewed in January 1957. Then Justice Brennan was confirmed by the Senate in March. This leads to a fascinating question. What if Adlai Stevenson had won in 1956? There must have been commentary about that point then, but I don't know what was said. Perhaps Stevenson would have also nominated Brennan because he was a Democrat, but perhaps not. 

What's interesting is that nobody seemed bothered by the recess appointment of a Justice less than two months before the election. Indeed, you could argue that this was the correct solution because a recess appointment left open the possibility that a change in the White House could lead to a new nominee. On the other hand, such an appointment would create an impossible conflict-of-interest for that Justice in a case involving a disputed presidential election. So giving Judge Barrett a recess appointment may not have worked or been tolerated. Or maybe such an appointment would have worked if people thought (as they may well have in September 1956) that the President was going to be reelected.

Part Three: Why State-by-State Ranked Choice Voting Should Be a Higher Priority Than National Plurality Winners

Guest Blogger

For the Balkinization Symposium on  Alexander Keyssar, Why Do We Still Have the Electoral College? (Harvard University Press, 2020), and Jesse Wegman, Let the People Pick the President: The Case for Abolishing the Electoral College (St. Martin's Press, 2020).

Edward Foley

            Part Two explained why a constitutional amendment to elect presidents based on a national popular majority vote would be ideal and why that ideal is unattainable for the foreseeable future. Here’s what to do instead.

Which second-best solution?

            So, as between the two, which is the more important?

Amar, Caminker & Mazzone on the ACA case (part 2 -- standing issues)

Jason Mazzone

 Over at Justia, Vik Amar, Evan Caminker and I have posted a new essay on California v. Texas, the case involving the challenge to the Affordable Care Act that the Supreme Court will hear one week after the election. Our new essay, Part Two in the series, concerns issues of standing. Part One, our discussion of stare decisis and what NFIB v. Sebelius did and did not hold (an issue that we think all parties in California are wrong about) is here. 

Part Two: A National Popular Majority Rule for Presidential Elections

Guest Blogger

For the Balkinization Symposium on  Alexander Keyssar, Why Do We Still Have the Electoral College? (Harvard University Press, 2020), and Jesse Wegman, Let the People Pick the President: The Case for Abolishing the Electoral College (St. Martin's Press, 2020).

Edward Foley

What would be ideal

             Ideally, there would be a new constitutional amendment to eliminate the Electoral College and, instead, elect the president based on a majority of the popular vote nationwide. The amendment would empower Congress to choose the method of determining the majority winner of the national popular vote.  Congress could choose a traditional runoff system, in which there would be a second popular vote among the top two candidates in the event that none received a majority in the first popular vote. Alternatively, and perhaps preferably, Congress could enact a system of Ranked Choice Voting, in which a majority winner would be calculated from the rankings on the cast ballots.

            This constitutional amendment would achieve two main objectives. First, it would create a uniform national electorate for choosing the president. Voters in California and New York would each cast one ballot to be put in the same single national pile as the one vote cast by each voter in Iowa and Nebraska. No voter in any state would exercise any more clout over the outcome of the election than a voter in any other state.

            Second, this constitutional amendment would make sure that the winner not only received more votes overall than any other candidate but also was the candidate preferred by a majority of voters when compared directly against the second most popular candidate in the race.  The two criteria do not necessarily yield the same result. In a race with three or more candidates, Candidate A can receive more votes than any other candidate, but when all other candidates are eliminated and Candidate A is compared only with Candidate B, then Candidate B can be preferred by a majority of voters to Candidate A.  This constitutional amendment would insist that Congress adopt an electoral procedure for identifying a majority winner, not merely a plurality winner.

How "Fact" Checking Can Decrease Civic Knowledge

Mark Tushnet

Yesterday I was contacted by a reporter with PolitiFact, with a question based on this statement by Joe Biden: “The only court packing is going on right now. It’s going on with the Republicans packing the Court now. It’s not constitutional what they're doing.” The question to me was in connection with a “fact check,” and asked, “Is what's happening right now -- the Republican push to install Amy Coney Barrett as the ninth Supreme Court justice -- in any way unconstitutional?”

I now realize that I should have answered that the question was badly posed as a “fact check” one because treating a claim about the Constitution as implicating a fact – rather than an opinion, or a prediction, or an assessment of whether there are reasonable arguments one way, the other way, or both ways – is just a mistake. But I didn’t, and the result, I think, was a decrease in civic knowledge (if anyone pays attention to PolitiFact).

Here’s my initial response: “As usual with this sort of thing, the answer’s complicated because ‘unconstitutional’ can and does mean many things. (1) If ‘unconstitutional’ means that a court would find what the Republicans are doing to be inconsistent with the Constitution, the answer is no, no court would make such a holding. (2) If ‘unconstitutional’ means that what they are doing is inconsistent with what some people reasonably view as fundamental principles underlying the constitutional order, then yes, what they are doing is unconstitutional. The political uses of the word ‘unconstitutional’ are different from the purely legal uses, but both (or all) kinds of uses are well within the bounds of the way we -- ordinary people, politicians, and lawyers -- talk about the Constitution. I know that this isn’t the way you do things, but I personally wouldn’t award any Pinocchios to the statement.”

I responded to a follow-up question about my second point by identifying as a relevant “fundamental principle” that “the political system should operate over time to ensure that overall all of our institutions are roughly in line with what the American people want.”

PolitiFact’s editors awarded a “False” to the Biden statement. The reason, supported by statements they got from Sai Prakash, Ilya Shapiro, and Robert Levy, appears to be that the word “unconstitutional” can be applied only to practices that are addressed by some express terms in the Constitution, supplemented with the proposition that everything not so addressed is to be determined by politics, understood to include sheer political power but not to include fundamental principles underlying the constitutional order. That reason and proposition are coherent and defensible (though wrong, in my view), but so are alternatives, and the labels “true” and “false” just aren’t apposite. (The formulation of the question to me – “in any way” – ought to have caused the PolitiFact editors to reflect a bit more upon their choice.)

Readers of this PolitiFact article know less about the Constitution than they did before they read it.

Richard Epstein and me on Obamacare

Andrew Koppelman

This evening at 7 pm Central, I will be on WTTW's news show, Chicago Tonight, discussing Judge Barrett and Obamacare. Also appearing will be my old friend and adversary Prof. Richard Epstein.

The Need for Ranked Choice Voting in Presidential Elections: An Essay in Three Parts

Guest Blogger

For the Balkinization Symposium on  Alexander Keyssar, Why Do We Still Have the Electoral College? (Harvard University Press, 2020), and Jesse Wegman, Let the People Pick the President: The Case for Abolishing the Electoral College (St. Martin's Press, 2020).

Edward Foley

Part One: What If Kayne West Were More Organized?

It is widely believed that 2020, unlike 2016, will be a genuinely two-party race, with no third presidential candidate being a factor in the outcome. That may indeed prove true, despite the presence on the ballot of the Libertarian and Green Party candidates in all and most states, respectively—and despite Kanye West’s mercurial bid to get on the ballot rather belatedly.

            But it doesn’t take much for a third candidate to be a “spoiler,” to use that somewhat unfortunate yet nonetheless essentially accurate term. Kanye is on the ballot in Minnesota, a potentially pivotal state in achieving an Electoral College majority, and [as this essay was drafted] he may still get on the ballot in Wisconsin because of ongoing litigation there.  If either or both of those states ends up being exceptionally close, as is possible, Kanye conceivably could make the difference.  (The Green Party lost its separate fight to get on Wisconsin’s ballot, where its share of the vote in 2016 was greater than the margin between Trump and Clinton.) Just ask Al Gore about the possibility of a third candidate on the ballot, like Ralph Nader, being decisive in who wins or loses a critical state for reaching 270 electoral votes.  Better yet, dust off a history book and read about the spoiler effect of a third-party candidate in 1844 election, one of the most consequential.

Judge Barrett's Views on What a Faithful Catholic Judge Should Do When She Has Conflicting Religious and Judicial Obligations

Marty Lederman

Judge Barrett and the Affordable Care Act

Gerard N. Magliocca

The first day of Judge Barrett's confirmation hearings is a good example of how political considerations can get in the way of a clear understanding of the relevant legal issues or concerns.

Case in point. Democrats spent most of today arguing that Judge Barrett will probably vote to invalidate the entire Affordable Care Act. The problem is that we have a contrary piece of information. In a moot of Texas v. California held not long ago, Judge Barrett (according to media reports) reached the opposite conclusion. Thus, the relevant question is whether Judge Barrett should recuse herself from the case in the interest of fairness to the opponents of the ACA.

Consider a hypothetical. A law school holds a moot court competition. They invite Justice X to be on the panel. The law school tells Justice X that the case for argument is one that the Supreme Court will hear in its upcoming Term. Justice X would almost certainly decline the invitation on the ground that she could not properly participate in such a moot court and then hear the case for real. I'm pretty sure that all of the current Justices would take that view. How, then, can Judge Barrett not recuse in Texas v. California?

This question, though, will probably not be asked in the hearings. Why not? Democrats won't ask because that would foul up their story that Judge Barrett is out to get the ACA. Republicans won't ask because they don't want to ask Judge Barrett a challenging question. As a result, we probably won't find out what Judge Barrett thinks of the recusal issue until she is confirmed and must decide her herself if she can properly sit in Texas v. California.    

UPDATE: In response to a question today, Judge Barrett said that in the moot court she voted that the individual mandate was unconstitutional but severable. I still don't see how she can go forward and sit on the case if confirmed in time. The opponents of the ACA have an excellent argument for her recusal.

Can Anything Short Of Outright Repeal Cure The Impecilities Of The Electoral College?

Sandy Levinson

For the Balkinization Symposium on  Alexander Keyssar, Why Do We Still Have the Electoral College? (Harvard University Press, 2020), and Jesse Wegman, Let the People Pick the President: The Case for Abolishing the Electoral College (St. Martin's Press, 2020).

All three of the books have as one of their dominant motifs the sheer difficulty, if not practical impossibility, of amending the Constitution.  Wegman and Foley, in particular, structure their affirmative proposals around this reality.  If constitutional change is impossible, then the next best thing is to support ameliorative proposals that would not require climbing Mount Everest.  It is illuminating, though, that Wegman’s strongly-argued proposal is eviscerated by Foley, even as Foley’s retains the possibility both of electoral college winners who in fact come in second in the overall popular vote, as well as retaining the possibility of the “contingent election.”

 So let’s begin with Wegman, who strongly endorses the so-called “national popular vote interstate compact.”  The idea is (perhaps deceptively) simple:  States with a total of 270 electoral votes simply agree, in a “compact” with one another, to instruct those chosen to be electors to vote for whoever comes in first in the national popular vote.  The Constitution clearly assigns to state legislatures the nearly plenary power to “appoint” electors; many state legislatures at the outset of the United States simply appointed the electors themselves without the bother of requiring an election at all, though this hasn’t been done since Colorado did in it 1876.  The Supreme Court’s July decision presumably removes any doubt about the constitutionality of such “instructed” electors.  The adoption of the proposal would, as Wegman ably argues, eliminate the possibility that the “winner” might in fact collect fewer votes than the “loser.”  So what’s the problem?  Why, in particular, does Foley object so strongly (as does Rakove)?

Signing Off on Discussing Court Reform

Mark Tushnet

I’m getting bored with detailed discussions of Supreme Court reform/expansion/packing. (And if I’m getting bored, I can imagine how other people feel!) Trying to step back from details, which will come up only as illustrations, I make a few points here. As always, this sort of discussion has to be preceded with the observation that it rests on the assumption, as yet unproven, of a Democratic trifecta in 2021 (probably along with some sort of filibuster reform).

(1) It simply foolish to contend that you’ve come up with a solution that’s invulnerable to constitutional challenge. No proposal that I’ve yet seen can simply be enacted as a statute that’s guaranteed to survive constitutional assaults. Statutory term limits with prospective effect only bump up against the appointments clause of Article II, which can be read to distinguish between appointments to the Supreme Court and appointments to other federal courts. Jack Balkin’s proposal bumps up against the requirement that there be “one” Supreme Court (on which see the next paragraph) and against the contention that it requires that one read the exceptions clause to mean that something that eliminates every category of appellate jurisdiction is an exception to the appellate jurisdiction. (If one wants a cf. cite here, cf. Justice Scalia’s opinion for the Court in MCI Telecommunications v. AT & T, 512 U.S. 218 (1994), which holds that a “modification” of something means changing it incrementally or moderately.) Targeted or general jurisdiction-stripping provisions also bump up against the exceptions clause and substantive constitutional provisions, as explored in excruciating detail in the enormous literature on jurisdiction-stripping (in addition to being far more difficult to draft than proponents acknowledge). Even Court expansion/packing bumps up against the claim that since 1937 (or earlier, depending on how one wants to do the analysis), there’s been an enforceable convention that the Court’s size can’t be changed without a relatively pure “good government” reason, unpolluted by the desire to alter outcomes.

What we need are assessments of the constitutional arguments, not flat assertions on the order of “it can be implemented by ordinary legislation.” My assessment is that all the changes should survive constitutional challenge – and that the constitutional argument against Court expansion/packing is the weakest of the lot. (The “should” here is doing a lot of work; a full-scale assessment would have to take into account the proposition that – assuming that standing and other justiciability obstacles can be overcome – the statutes and the Constitution would be interpreted by the unreformed Court. So, for example, can we be sure that the unreformed Court would adopt the kind of purely formalist interpretation of the word “one” that Balkin’s proposal requires?) But, a proposal that doesn’t address potential constitutional objections isn’t a serious one.

(2) A lot of the discussion lists short- and long-term costs and benefits. The “downward spiral of retaliation/57 justices/delegitimating the Court” rhetoric is a list of assertedly long-term costs, for example. Proponents of Court expansion/packing acknowledge the short-term political costs but emphasize short-term benefits from Court decisions that are assumed to be different after Court expansion than they would have been without it.

What’s missing from all the discussions (except mine!) is any consideration of probabilities and a calculation of the net of costs and benefits taking those probabilities into account. To take an obvious example: If Court expansion occurs in 2021, it can’t be undone until 2025 unless Republicans win veto-proof majorities in both houses of Congress in 2023. What’s the probability of that? And what’s the probability that one effect of Court expansion might be to allow Democrats to enact statutes, both voting-related and otherwise, that would increase the likelihood that they’ll retain the trifecta in 2024? And, on the claimed benefits side, what’s the probability that the “reformed” Court will actually deliver those benefits, both short- and long-term? On the long-term side, there’s the Moyn-Doerfler argument that some forms of Court reform might actually exacerbate the problem of making the Court central in our politics. Again, what’s the probability of that outcome – as compared to the probability that the changes will delegitimate the Court?

Frankly, I won’t take seriously anyone who simply offers “downward spiral” as an argument against Court reform.

But wait, there’s more, though this one’s quite old hat and really boring. It’s generally assumed that delegitimating the Court is a bad thing (for progressives). The reasons offered are, again a list of good things the Court has been able to do (or to get away with) because of its legitimacy. It’s been clear for a long time – forever, in my view – that you’ve got to do a pretty complicated calculation of the costs of having a Court able to draw upon a “legitimacy” resource before you can say anything sensible about whether delegitimating the Court is good or bad. There’s Brown and the Watergate Tapes Case and Obergefell on one side and Shelby County and Citizens United on the other. You’ve got to explain your assessment of the net before I’ll take your list seriously.

I’d also like to know what you think a fully legitimated Court would do in a world where Congress could have but didn’t reform the Court. That is, what national legislation that you can imagine (within what time horizon?) would such a Court invalidate? Is it going to advance a progressive agenda on its own by, for example, holding limited expansions of health care unconstitutionally narrow? Again, this gets really complicated. You have to worry about what limits a delegitimated Court could put on what you think is an aggressive president, of course, but also about the limits a fully legitimated one would put on what you think is a properly assertive one. The same goes for review of state and local legislation; there you have to talk about the possibility of congressional legislation to preempt bad stuff – freed of the constraint of City of Boerne v. Flores.

You have to do all this, of course, only if you’re actually taking seriously the proposals you’re making and those you’re criticizing.

(3) Finally, what’s the point of these discussions right now? Pretty clearly, it’s to widen the Overton window. We can see from Republican rhetoric that they don’t want it to open even a crack – not surprising: Having gained control of the Court and the lower courts, they don’t want court reform of any sort. In fact, I’m pretty sure that they will describe every proposed reform as Court-packing. (If so, my view is that it’s better to be hanged for a sheep as for a lamb.) For people who think that the Court needs reform, I doubt that proposing to open the Overton window a little bit but not too much is a good strategy. But, once the Overton window has been opened pretty wide, I’ll leave to the politicians to figure out what to do.

Reflection And Choice About A True Constitutional Imbecility

Sandy Levinson

For the Balkinization Symposium on  Alexander Keyssar, Why Do We Still Have the Electoral College? (Harvard University Press, 2020), and Jesse Wegman, Let the People Pick the President: The Case for Abolishing the Electoral College (St. Martin's Press, 2020).

Although this symposium was originally envisioned as discussing only Jesse Wegman’s Let the People Pick the President:  The Case for Abolishing the Electoral College and Alex Keyssar’s Why Do We Still Have the Electoral College?, I am including as well Edward B. Foley’s equally fine book, Presidential Elections and Majority Rule:  The Rise, Demise, and Potential Restoration of the Jeffersonian Electoral College.  It was published somewhat earlier in the year, but all of them deserve readers and discussion.

Wegman, a former lawyer who is now on the editorial board of the New York Times, has written, as Jack Rakove suggests, a book designed for the widest audience.  It is a forthright and, to my mind, completely convincing attack on retaining the electoral college at all; it would make a perfectly suitable gift to any friend who wants to know what the fuss about the electoral college is about. It is written in a conversational style that is truly reader-friendly.  Keyssar and Foley are both academics, Keyssar at Harvard, Foley at Ohio State, and their books are, perhaps necessarily, denser.  But all are extremely well written and accessible.  One could do much worse than give all three as presents!  

My blurb for Foley’s book reads, “Nobody writes more thoughtfully about the theory and historical practices of American elections than Foley.  This book is a model of careful argument.”  I happily stand by that, just as I would write equally enthusiastic, though somewhat differently phrased, endorsements of the other two.   To put it mildly, this is a more extended essay than originally envisioned, and not only because I have added Foley to the mix.  I am therefore dividing it into two parts, the first of which will be published today, the second tomorrow.  I will focus first mostly (though not exclusively) on Keyssar’s book, which is both the longest and contains the most historical material.  Tomorrow I will turn more to the suggestions offered by Foley and Wegman as to how we might escape the current iron cage constructed by the present electoral college system. 

Keyssar is less of an advocate than the other authors; he is primarily interested in what accounts for the endurance of a part of the Constitution that has been systematically attacked since at least 1816, though one of his explanations is the barriers placed in the way of formal constitutional amendment.  This did not, obviously, prevent the important Twelfth Amendment, a focus of Foley’s book, from being proposed and ratified after the fiasco of the Jefferson-Burr tie vote of 1800, in time for the 1804 election.  But that is the last such amendment, and all three authors appear to agree that the prospects for amendment in the foreseeable future are minimal.  Wegman, like Foley, offers enthusiastic support for a “workaround” that avoids climbing the Mount Everest of the amendment process.  Their respective suggestions, though, are quite stunningly different.  I shall elaborate them tomorrow.

Vik Amar on Congress's role in electoral college reform

Jason Mazzone

I have been enjoying the Balkinization symposium on the books by Alexander Keyssar and Jesse Wegman on electoral college reform. I have one small comment in response to Professor Rakove's very interesting essay on the need for constitutional amendment. Readers might be interested to know that my colleague Vik Amar published an essay back in 2011 in the Georgetown Law Journal on the powers of Congress to remedy problems with the design or operation of the National Popular Vote Compact Plan and to put in place federal mechanisms to identify and tally popular sentiment within each state. Among other things, Vik shows that Congress has several powers it can use to require a uniform "presidential preference poll" to be held in every state (and used by the NPVC states) on the same day that congressional elections are held. Vik observes that besides being easier to adopt than a constitutional amendment, such statutory mechanisms have the added advantage of allowing for experimentation and adjustment. Vik's essay, "The Case for Reforming Presidential Elections by Subconstitutional Means: The Electoral College, the National Popular Vote Compact, and Congressional Power," is here for readers with Hein access and here in draft form at SSRN.

How to Reform the Supreme Court

JB

Yesterday I was on Ben Wittes' and Kate Klonick's show, In Lieu of Fun, to discuss my proposal for reforming the Supreme Court. Despite the title of this episode, I am actually opposed to Court packing. Instead, I am in favor of a different system for regularizing Supreme Court appointments. Read the blog post for details!

As I explain during the show, my proposal creates the practical equivalent of 18 year term limits. But it can be done through ordinary statute, it maintains life tenure, and it is fully constitutional, building, as it does, on two early precedents of the Supreme Court, Marbury v. Madison and Stuart v. Laird, both decided within a week of each other in 1803. 

Article V: There Is No Other Way

Guest Blogger

For the Balkinization Symposium on  Alexander Keyssar, Why Do We Still Have the Electoral College? (Harvard University Press, 2020), and Jesse Wegman, Let the People Pick the President: The Case for Abolishing the Electoral College (St. Martin's Press, 2020).

 Jack Rakove

             Back in the early 1970s, when my old friend Alex Keyssar and I were Harvard graduate students, we were part of an occasional “politics table” at Leverett House featuring John Rawls and Judith Shklar. As one can imagine, that was an intellectually heady experience, even though Rawls had the worst stutter I have ever encountered. Reading Keyssar’s new book, the early parts of which I reviewed in manuscript, I found myself thinking about Rawls’s celebrated “veil of ignorance” as one speculative remedy for the frustrating history of Electoral College reform that Keyssar recounts in fascinating if often gloomy detail. If we could put the whole American body politic behind such a veil and ask them to create a new mechanism for the selection of a president, would they not be driven to adopt the mode of election that most readers of this symposium likely prefer: a national popular vote, to be conducted in a single constituency (let’s call it the collective United States of America, as opposed to fifty electorally autonomous states and the District of Columbia), with a requirement that the winner be selected with either (let’s say) at least 45% of the vote or if necessary, in a runoff requiring an actual majority for victory.

            Alas, the conceptual genie that the philosopher can deploy is not for sale to historians, who have to deal with really existing people inhabiting specific moments and contexts. In that world, we are perpetually ignorant about what the next day will bring, but always alert to calculations of our political interests and preferences. In the language of Federalist 10, we know that leaders and citizens remain subject to the opinions, passions, and interests that dominate our political behavior, and lack the intellectual disinterestedness that the veil of ignorance would provide.

            In these two very different books, Keyssar and the New York Times journalist Jesse Wegman struggle with the common problem that Keyssar’s title captures so well: Why Do We Still Have the Electoral College? (the key word here being still). To be honest, Keyssar’s book has a real value for the readers of this symposium that Wegman’s Let the People Pick the President does not. I absolutely do not mean this to disparage Wegman’s book, but only to recognize that one book was conceived as a deeply researched and thorough scholarly examination of the long-running if futile efforts at electoral college reform, the other as a journalist’s snappy introduction to the topic, meant for the general reader and interested citizen. Wegman’s book is replete with short sentences, brief paragraphs, and bursts of rhetorical questions and bullet points to speed his story along. Even when he identifies analytical points that merit fuller treatment, his narrative does not alter. Keyssar, by contrast, responds to the historian’s responsibility to tell the complete story, even when that involves reiterating arguments that reformers and their opponents have been making for two centuries and more. As he observes near the end of the book, “The history recounted here has a Sisyphean air”—an image that had occurred to me well before it finally appeared on page 368. But Sisyphean though it might be, Keyssar’s new book should enjoy the same status as his Pulitzer-finalist work, The Right to Vote (2000), which appeared just in time to appear as a visual prop over James Baker’s shoulder in his first Meet the Press appearance after the election. Keyssar’s two books are now the definitive historical treatments of their respective subjects (which is a surprising destiny for someone who began his career as a labor historian).

            Despite the asymmetry between the two books, two concerns unite them that deserve critical treatment. One involves their discussion of the National Popular Vote Interstate Compact (NPVIC), which is a specific application of the more general concept of a National Popular Vote (NPV) replacing the constitutional electoral vote. Under its terms, a group of states casting 270 electoral votes—the simple majority required to elect a president—would bind their electors to cast their ballots for the national popular vote winner, thereby avoiding the disparity that occurred most recently in 2000 and 2016. This is the reform that many opponents of the Electoral College now prefer; it is also, for reasons I will shortly explain, a fatally flawed alternative. The other relates to the common defense of the Electoral College that its proponents routinely summon, which rests upon the idea that our state-based system of presidential election is essential to the preservation of the federal system. The creation of a truly national election in which each citizen’s vote would have the same value wherever it was cast, this argument holds, would somehow sap the vitality of American federalism. Accepting this shift toward a plebiscitary democracy, it is further argued, will undermine the federal constitutional republic the founders and framers established.

Balkinization Symposium on the Electoral College

JB

This week at Balkinization we are hosting a symposium on two recent books on the electoral college: Alexander Keyssar, Why Do We Still Have the Electoral College? (Harvard University Press, 2020), and Jesse Wegman, Let the People Pick the President: The Case for Abolishing the Electoral College (St. Martin's Press, 2020).

 We have assembled a terrific group of commentators, including Ned Foley (Ohio State), Mark Graber (Maryland), Jack Rakove (Stanford), James Stoner (LSU), Franita Tolson (USC), and Sanford Levinson (Texas).

At the conclusion, Alex and Jesse will respond to the commentators.

From Marriage to Children: Could We Not Find Common Ground?

Guest Blogger

For the Balkinization symposium on William N. Eskridge, Jr., and Christopher Riano, Marriage Equality: From Outlaws to In-Laws (Yale University Press, 2020).

Whither Coronavirus Relief Legislation?

David Super

     Keeping track of the negotiations on a possible follow-on coronavirus relief package has been no mean task.  Just this week, President Trump ordered Secretary Steven Mnuchin to break off negotiations with congressional Democrats, declaring that any relief package would have to wait until after the election.  He then almost immediately began demanding that Congress pass relief legislation for business.  Previously, the negotiations have gone through many starts and stops, with some accounts declaring that agreement was close at hand and others insisting that relief legislation was dead.  It may be useful to look at what is really happening. 

     The last sweeping coronavirus relief legislation, the CARES Act, was enacted March 27, more than half a year ago by the Gregorian calendar and much longer in COVID-19 time.  It was built around a trade of liberalized unemployment compensation benefits and state fiscal relief sought by Democrats for massive business subsidies sought by Republicans.  It also included one round of economic relief (“stimulus”) payments to many low- and moderate-income taxpayers (although it missed many of the poorest of the poor).  Both parties’ highest-priority provisions were effectively time-limited:  the unemployment compensation changes had formal expiration dates; the state fiscal relief sufficed to make up for perhaps a quarter of the shortfalls states were facing; and many of the business subsidies, although vast, had fixed allocations of funds.  The assumption was that these limits would force the parties back to the table to craft new legislation.

     In April, Republicans complained that the fund for business subsidies was already being exhausted and urgently needed to be replenished.  The Democrats countered that states and cities were in dire shape as well and that hunger was rising, but Republicans refused to allow either any further state fiscal relief or any expansion of food assistance into the package.  They attacked Democrats as being anti-business for refusing to move a business-only relief package, and apparently the Democrats’ focus groups found those attacks were having some success.  The Democrats therefore passed the Republicans’ package in exchange for the President’s promise, confirmed in a tweet, that state fiscal relief would be included in another bill to follow quickly. 

     As soon as the April relief legislation passed, the White House, and especially Senate Majority Leader Mitch McConnell, made clear that they were in no hurry to move additional bill.  In May, House Democrats passed the HEROES Act.  The HEROES Act extended the unemployment compensation improvements, gave states and localities the fiscal relief they needed to weather the crisis, provided for an additional round of economic relief payments, and offered further subsidies to businesses suffering because of the pandemic.  Anticipating difficulties ahead, House Speaker Nancy Pelosi refused to allow the HEROES Act to become a “Christmas tree” with packages for every Democratic constituency, turning away many sound proposals to keep the legislation focused, defensible, and relatively lean (given the enormity of the problems).  

     Senator McConnell declined in May, June, and most of July either to allow the HEROES Act to the Senate floor or to offer proposals of his own.  At the very end of July, just before the CARES Act’s $600 per week supplemental unemployment benefits were due to run out, he floated a minimalist, half-hearted piece of relief legislation but made no meaningful effort to negotiate a deal with Democrats.  The unemployment benefits, along with the CARES Act’s eviction moratorium, therefore expired.  Negotiations continued on and off for a while, but Republicans again made no attempt either to close the gap with Democrats or to move legislation of their own. 

     The President tried to relieve political pressure on his party with a series of largely cosmetic announcements of steps to continue some of the expired provisions.  He sought to tap disaster relief funds to provide partial substitute unemployment benefits for a few weeks, albeit in violation of the Stafford Act.  The Administration later invoked its public health powers to block some evictions, although its action appears to have had little effect on the vast majority of low- and moderate-income tenants lacking the lawyers or legal skills to invoke that order effectively in landlord-tenant court. 

     The practical impact of these moves was modest – and did nothing for struggling state and local governments that were facing large lay-offs because of reduced tax revenues – but they created enough confusion that Republicans were politically comfortable abandoning coronavirus relief legislation.  Efforts to include additional relief measures in the “continuing resolution” – the legislation keeping the government running into December – also largely failed. 

     Over the last week or so, Treasury Secretary Mnuchin has been negotiating one-on-one with Speaker Pelosi and reportedly had made considerable progress toward a deal.  The Administration’s renewed willingness to contemplate relief legislation may reflect the President’s deterioration in the polls.  It may also reflect the fact that it is now too late for any Postal Service funding  -- a major sticking point in prior negotiations – to affect the delivery of ballots. 

     It soon became apparent, however, that Republicans were divided on the political desirability of further relief legislation.  President Trump remains enamored of the idea of sending out another round of economic relief payments bearing his name before the election. 

     Congressional Republicans, on the other hand, find coronavirus relief legislation a divisive topic.  Some feel pressure to aid constituents in dire condition due to the economic downturn or worry about a deepening recession if the federal government’s contribution to aggregate demand shrinks.  Federal Reserve Chair Jerome Powell strongly highlighted the need for more stimulus.  Other Republicans, however, worry that passing another large stimulus bill will anger conservatives who see recessions as golden opportunities to shrink government.  (This explains the particular hostility to state and local fiscal relief.)  According to some estimates, Majority Leader McConnell could count on little more than half his caucus to vote for any stimulus legislation that came to the floor. 

     Senate Republican opposition to stimulus legislation became overwhelming after the death of Justice Ginsburg.  They saw the prospect of placing a sixth conservative on the Court energizing their conservative base and worried that passing a substantial relief bill would dissipate much of that enthusiasm.  Accordingly, neither Senator McConnell nor House Minority Leader Kevin McCarthy participated in the negotiations with Secretary Mnuchin and Speaker Pelosi.  Senator McConnell reportedly was resigned to the political necessity of allowing a vote on any deal that was reached, but his and his colleagues’ lack of enthusiasm may have contributed to the President’s announcement that he was breaking off negotiations. 

     The President’s subsequent demands for particular pieces of business relief legislation cannot be taken seriously.  Having already been burned by agreeing to a business-first approach in April, neither Speaker Pelosi nor Senate Minority Leader Chuck Schumer will go down that road again.  The President might change his mind on relief legislation after the stock market’s glum reaction to his announcement or because airlines are threatening mass layoffs (with many of their hubs in swing states).  At this point, however, it may be too late to issue economic relief payments with the President’s name on them before the election.  It therefore seems unlikely that a package will materialize now.

     If coronavirus relief does not move before the election, its future is murky.  The next major formal deadline is the end of December, when millions of unemployed workers will be cut off unemployment benefits completely.  (The expiration at the end of July affected an even larger number of workers but resulted primarily in a sharp cut in benefit levels rather than complete losses of eligibility.)  Many states’ unemployment compensation agencies have antiquated computer systems that will make it difficult for them to reinstate benefits should Congress allow them to lapse.  On the other hand, many Senate Republicans facing perilous contests in 2022 may still be unwilling to alienate their conservative bases by passing further relief legislation. 

     Also uncertain is the impact on state and local governments.  Many enacted unrealistic placeholder budgets to wait and see what federal fiscal relief might be forthcoming.  Now that those prospects have dimmed considerably, they may be forced to reconvene their legislatures to close the yawning budget gaps the recession caused.  This likely will lead to painful cuts that could result in large lay-offs.  Whether they are eager to do so before the election, however, remains to be seen.   

     @DavidASuper1

The Unpersuasive Empiricism Regarding Universal Mail-in Voting Fraud

Ian Ayres

Ian Ayres & Pranjal Drall

President Trump has railed against states that send ballots automatically to all registered voters for months. In the recent presidential debate, he stated, “As far as the ballots are concerned, it's a disaster...a solicited ballot is OK but an unsolicited ballot is not...It's a rigged election.”

Currently, only nine states and the District of Columbia (home to 21 percent of the population) send ballots to all registered voters. Out of the remaining states, 34 states (56 percent) allow absentee voting upon request while seven states (22 percent) require voters to vote in person at a polling place unless they have an excuse (beyond COVID-19).  

A closer look at the jurisdictions that have ‘universal’ mail-in voting shows that 9 of the 10 have electorates that are so solidly in favor of one presidential candidate that it beggars belief that voting fraud could impact the outcome in these states. In these nine jurisdictions—Vermont, California, New Jersey, Colorado, Hawaii, Utah, Washington, Oregon and the District of Columbia—the leading candidate holds more than a 10 percent predicted vote share: 

According to FiveThirtyEight’s election modelling, Nevada is the only universal mail-in voting state that is up for grabs with Biden holding “only” a 6.2 percent lead in the weighted polling average.  But Nevada casts only 6 electoral votes and is estimated to have only a 3.5 percent chance of deciding the election, that is, of being pivotal to determining the winning candidate.

Nevada is the only universal mail-in voting state where massive voting fraud could have any possibility of altering the identity of the state winner and Nevada has so few electoral votes that contesting that state’s electors is unlikely to impact the identity of the electoral college winner. To be clear, when we say, “that massive voter has any possibility,” we are trying to give credence to Trumps concern. It is also important to note that universal mail-in voting has not been linked to any kind of voter fraud. However, even if we were to grant Trump the first part of this argument that unrequested mail ballots are more susceptible to fraud, any such fraud is unlikely to cause a material difference in the outcome of the election. Even if Pence refuses to accept Nevada’s electoral returns “on the grounds that the underlying vote count was generated in an illegitimate fashion,” Biden would still likely retain a majority of electoral college electors.

Although Trump has publicly mostly railed against these nine states, his campaign has filed multiple lawsuits in states that are expanding vote by mail including New Jersey, Nevada, North Carolina, Iowa, Pennsylvania, and Montana. The campaign also filed a motion against residents of the Navajo Nation in Arizona who are suing the state over a policy requiring ballots be received before 7pm on election day. These states are very important for the election. For instance, Pennsylvania, North Carolina, and Arizona cumulatively have a 36 percent chance of deciding the election. The Supreme Court also recently upheld South Carolina’s witness-signature requirement which signals how it may rule on future cases around state vote by mail mandates.

These lawsuits have already greatly hobbled Democrat plans to encourage mail-in voting. Officials are urging voters to vote-in person in key swing states as they are worried that mail-in votes might not be counted. This is not only bad news from a public health standpoint but also can lead to reduced voter turnout if voter’s fear their votes are not being counted.

We have reason to be concerned that these lawsuits may impact the election by making it harder for people to cast their votes in battle ground states. In contrast, President Trump’s rhetorical efforts to claim that any loss of his would be due to practice of ten jurisdictions to automatically mail ballots to all voters does not withstand scrutiny. 

Laying to Rest Old Wrongs

Guest Blogger

For the Balkinization symposium on William N. Eskridge, Jr., and Christopher Riano, Marriage Equality: From Outlaws to In-Laws (Yale University Press, 2020).

Robin Fretwell Wilson

For a book threaded through with journey stories (e.g., 204, 212, 237, 247, 257, 440, 487, 666), we should not miss in these pages the unspoken story of understanding and forgiveness between once bitter adversaries.

I first met Bill Eskridge, with whom I would later do a book on the Prospects for Common Ground in our seemingly unending culture war, when I was seated next to him and Maggie Gallagher on a panel of academic luminaries that included Emory’s Martha Fineman and Notre Dame’s Peg Brinig. It was January 2004. Maggie, who would become the “one-woman think tank for” the ultimately doomed Federal Marriage Amendment and a founder of the National Organization for Marriage (262, 368, 369), was seated to my right. Bill was seated to her right. Still a relatively new faculty member, I was nervous. Before the panel began, I stepped out for water and, frankly, to compose myself. I returned for the panel’s start to find an empty chair between Maggie and Bill. Confused, I took the seat that was left for me. I should have worn a flak jacket. The animosity rippling between Maggie and Bill was palpable.

Marriage Equality and the Gayocracy

Guest Blogger

For the Balkinization symposium on William N. Eskridge, Jr., and Christopher Riano, Marriage Equality: From Outlaws to In-Laws (Yale University Press, 2020).

 Russell K. Robinson

William N. Eskridge Jr. and Christopher Riano’s Marriage Equality: from Outlaws to In-laws is sweeping and daunting in scope at 1026 pages. They skillfully bring to life the stories of the many hopeful couples and colorful lawyers who fought the epic constitutional battle for marriage equality. Their book builds on Professor Eskridge’s deep and impressive body of scholarship on sexual orientation and the law generally, and marriage equality in particular. Eskridge and Riano identify the following as “a central theme of this book:” “[T]he key variable driving the marriage debate has been the changing social status and roles of woman. As women have secured more educational, employment, political, financial, and other opportunities, they have made different decisions about family, marriage, and children—and those decisions have eroded the sexual division of labor on which traditional marriage was founded. At the same time, the evolution of women’s status opened doors for lesbians as well as straight and bisexual women—and for gay men, whose deviation from traditional gender roles grew more acceptable as those roles were considered more flexible.”[1] (p.416) Professor Eskridge has also written powerful law review articles that argue that, in the Title VII context, sexual orientation discrimination is a form of sex discrimination.[2] Although one might think of marriage equality and Title VII as analytically distinct, Eskridge’s work displays formidable synergy between these contexts. For instance, he argues persuasively that interpreting Title VII to exclude discrimination claims by gays and lesbians would violate equal protection under Romer v. Evans’ logic.

On the surface, Eskridge and Riano’s claim about fusion between advances in women’s equality and gay and lesbian rights may seem unobjectionable. They suggest that gay men and lesbians stood on the shoulders of feminists, such as the late Ruth Bader Ginsburg, who fought to strip marriage and family law of longstanding gender stereotypes. Yet once we unpack the claim, we find that it may function to conceal the reality that leading marriage equality lawyers were averse to the sex discrimination argument and tethering gay men’s rights to women’s rights. Eskridge and Riano’s statement suggests a completeness to the effort to free the family from the strictures of rigid gender roles that is belied by empirical data and on-going legal battles. Women continue to be paid less than men, to perform a disproportionate amount of child-rearing work, and to face exclusion from the most elite positions. Moreover, women are fighting tooth and nail to preserve earlier Supreme Court victories, including the right to choose an abortion and the right of access to contraception. In recent years, the Supreme Court has consistently sided with corporations asserting religious freedom rights and permitted them to refuse to subsidize contraception for their female employees. The Court has spent decades whittling away at Roe v. Wade’s assertion of a right to terminate a pregnancy. Closely-divided recent decisions in which Justice Kennedy and later Chief Justice Roberts joined the liberal Justices to preserve abortion precedents have not quelled the battle over Roe. To the contrary, President Trump has made transforming the Supreme Court and overturning Roe a central goal of his administration. His recent nomination of Judge Amy Coney Barrett to replace Justice Ginsburg means that the Court may soon grant evangelicals’ most fervent desire. Despite the #MeToo movement and credible testimony of sexual assault by Dr. Christine Blasey Ford, the Senate confirmed Brett Kavanaugh as a Supreme Court Justice. This wide-ranging “war on women” is particularly threatening to Black, Latina, and poor women, who tend to be far more vulnerable than middle-class White women.