Friday, July 19, 2019

Why Liberals and Conservatives Flipped on Judicial Review


I've posted a draft of my latest article, Why Liberals and Conservatives Flipped on Judicial Restraint: Judicial Review in the Cycles of Constitutional Time, on SSRN. This is part of a longer book I am writing on cycles of constitutional change.

Here is the abstract:

Over the course of a little more than a century, American liberals (or in an earlier period, progressives) and conservatives have switched positions on judicial restraint, judicial review, and the role of the federal courts--not once, but twice. This cycling has multiple causes, including changes in the Supreme Court's docket and partisan strategies for judicial appointments.

Behind the composition of the Court's docket and the judicial appointments process, however, is a still deeper cause: the slowly changing structure of national party competition in the United States. Throughout American history national politics has been organized around a series of political regimes in which one party is dominant and sets the basic agenda for political contest. The dominant party also usually has more opportunities to shape the federal judiciary. Eventually the dominant party’s coalition falls apart and a new regime begins, led by a different party. This has happened six times in our nation's history, and we appear to be on the cusp of a seventh transformation.

Generational shifts in views about judicial activism and judicial restraint mirror the rise and fall of political regimes led by dominant parties. The kinds of the cases the Justices select, and how the Justices exercise their powers of judicial review, reflect whether we are early in the regime, in its middle years, or in its later days. For this reason, the rise and fall of regimes shapes partisan (and ideological) attitudes about the exercise of judicial review.

Early in a regime, the newly dominant party faces opposition from judges appointed by the old regime and obstacles from the constitutional jurisprudence those judges created. Hence its supporters tend to be more skeptical of judicial review. As the dominant party gains control of the courts, however, its followers increasingly recognize the importance of judicial review to promote and protect the party's commitments of ideology and interest. The positions of the two parties are symmetrical: as time goes on, the dominant party relies ever more heavily on judicial review to further its goals, while the other party gradually loses faith in the courts and increasingly preaches judicial restraint--although neither party entirely gives up on using the courts to promote its favored policies. As a political regime moves from its beginning to its conclusion, the positions of the two parties gradually switch, and so too do the views of legal intellectuals associated with the parties. The effect, however, is generational, and not everyone changes sides: older legal intellectuals may cling to their long-held beliefs about judicial review, while younger thinkers adopt a different perspective.

Constitutional theories--such as originalism and living constitutionalism--also evolve to reflect changing views about judicial review and judicial restraint. For example, while conservative originalism began as a justification for judicial restraint, it soon evolved to justify strong judicial review; the same thing happened to living constitutionalism earlier in the twentieth century.

Tuesday, July 16, 2019

Further reflections on Super

Sandy Levinson

It is difficult not to agree with most of what David Super says in his typically thoughtful post.  We are a fundamentally divided, highly polarized country.  Most, even if not all, of the dreadful people in public office were elected in fair elections.  The most shocking single statistic is that even now, when there is shockingly little new to learn about Donald Trump (save the extent of his indebtedness to Russian financiers), at least 40% of our fellow Americans support this ignorant and malevolent lout.  I think that a fairer electoral system, including one that dispensed with the indefensible allocation of voting power in the Senate (even if it allows Vermont's two Democratic senators to cancel out Texas's two Republican ones), would produce a different distribution of votes, but that wouldn't gainsay David's basic point that even the fairest election process would produce a number of victors most of us should be appalled by.  (It is certainly possible, for example, that the truly despicable Mitch McConnell will win re-election next year.)  There is no magic fix, including what could be produced by constitutional reformers, for our present discontents.

That being said, it will not surprise David, or others, that I persist in my support for a new convention largely because I find the alternative--which is basically a national silence on the extent to which our basic political system is dysfunctional--so dispiriting.  I have frequently attacked Bernie Sanders, the faux-revolutionary, for leading his impressionable supporters to believe that he could do almost magical things should he win the presidency.  That is patently false, but he refuses even to bring up the way that the system was rigged in 1787 (perhaps because he'd have to explain why Vermont enjoys indefensibly exaggerated power in the Senate).  The catch-22 is that the left almost resolutely refuses to even raise the issue of constitutional reform.  The American Constitution Society, which I have somewhat devotedly supported, has never once encouraged its membership even to think about the possibility.  Paradoxically or not, it is the ostensibly originalist  Right, including Texas's Gov. Greg Abbott, that is suggesting the need for serious reform.  The left has become paralyzed with fear that the Right might be successful in triggering a so-called Article V Convention.  All we seem able to do is to say, quite correctly, that the Right envisions a takeover by conservative (or ultra-conservative) state-appointed delegates who would return us to something close to the Articles of Confederation (save for a dictator-like president in the realm of foreign and military policy).

From my perspective, we have a "left" that is scared to death of the possibility of an aroused public.  It would be foolish to deny that there is some basis for this fear, given events not only in this country, but around the world with what has become labeled "populism."   I don't know how one builds the kind of movement that both David and I believe is desperately necessary without conveying a genuine respect for the ability of ordinary Americans to engage in self-government.  Lincoln spoke of government "of, by, and for the people."  Liberals are terrific at the last, i.e., support for programs that experts believe will in fact help the people.  I fear that we are less terrific in genuinely supporting the second term, i.e., government by the people.  (Among other things, this would suggest a greater support than one usually finds for so-called "direct democracy," including initiative and referenda.)  

The gerrymandering case could turn out to be valuable if it really does lead liberals, including the American Constitution Society, to give up their faith (the "hollow hope"?) in the judiciary to provide cures for what ails us as a polity.  As Roberts himself noted, contradicting his terrible dissent in the Arizona electoral commission case, a number of states do allow their citizenry to seize control of the redistricting project away from self-interested party hacks.  But, of course, many states--and, most importantly, the U.S. as a national polity--are hostile to the idea of an awakened popular sovereign.  We prefer what Thomas Hobbes called the "sleeping sovereign" that puts all actual decision-making power in the hands of so-called "representatives" who may or may not fit any truly plausible theory of "representation" save the ability to prevail in dubious electoral processes.

Out debate would be very different, of course, is Democratic candidates were in fact willing to suggest certain kinds of "ordinary" constitutional reform as part of their platforms.  A convention would obviously be an extreme event (at least at the national level), and it is foolhardy to believe that it would necessarily be efficacious.  My favorite presidential campaign of all time occurred in 1912, because both Wilson and Roosevelt (and, I suspect Debs), were serious constitutional reformers, while William Howard Taft was by far one of the most capable defenders of the established order.  Not coincidentally, the decade of the teens saw a variety of genuinely important amendments through the Article V process.  That discussion is totally absent today, save for some almost offhand comments about reforming the Electoral College, which is really low-hanging fruit inasmuch as every single public opinion poll since 1944 has shown that a majority of the respondents supported getting rid of it in favor of direct election.

Imagine that your favorite  Democratic candidate--mine is Elizabeth Warren--is inaugurated on January 20, 2021, with Nancy Pelosi (or your own favorite Democratic replacement) taking the gavel as Speaker of the House, but with Mitch McConnell remaining as the Senate Majority Leader with, say, 51 or 52 votes.  Does a single reader believe that President Warren would be able to get a scintilla of her program through Congress?  Can one even be confident that her nominees to replace Ginsburg and Breyer would get hearings, let alone confirmation?  What would it take to lead more sober and thoughtful people than I, like David, to declare that Congress as an institution had in fact become "illegitimate"?  What would follow from such a declaration is, of course, an entirely different question.

Monday, July 15, 2019

Can the House Hold the President in Contempt?

Gerard N. Magliocca

The House of Representatives has a broad inherent contempt power. The Supreme Court so held in Anderson v. Dunn, an 1821 decision. The Court concluded that the House could hold a non-member in contempt even though no textual provision grants that authority.  In reaching that conclusion, Dunn said that the argument that "such an assembly should not possess the power to suppress rudeness, or repel insult, is a supposition too wild to be suggested."

I submit that the President's recent comments are an insult to the House of Representatives. Under Article I, that body has the authority and the right to respond. The response could, of course, be a simple statement that condemns the comments. Under the inherent contempt power, though, I think that the House could go further by (for instance) declaring the President persona non grata within the House chamber. The House is obviously not going to clap the President into some makeshift Capitol jail, but a far more modest sanction seems appropriate.

If a member of the House had made comments about other members comparable to the President's recent comments, there would be a serious discussion about censuring or punishing that member. Why not here?

Practical and Idealistic Themes in Political Reform

David Super

     Sandy Levinson, my former teacher whom I respect enormously, reads my post on the increasing opacity of the congressional appropriations process and asks whether I would agree that Congress has rendered itself illegitimate.  He goes on to ask what is to be done, given my opposition to convening a new constitutional convention under Article V.  These are thoughtful and thought-provoking questions that deserve a response.  As I pondered my answer, it occurred to me that a similar theme runs through the Article V debate and other contemporary visions of progressive reform.  This post attempts both to respond to Sandy and to sketch those broader themes.

     First, although I find Congress frustrating and sometimes reprehensible – certainly in its failure to act on climate change but in many other areas, too – I do not see it as illegitimate.  Indeed, to a first approximation, this country’s electorate has the Congress that it deserves.  We are a sharply divided nation, with roughly equal numbers of progressive and conservative voters.  In a system built to require some supermajority to enact legislation, it makes sense that we can change very little of substance. 

     Much of the public disdain for Congress reflects voters on each side of this division refusing to acknowledge the existence of an equally numerous group on the other side – and hence imagining that Congress is obstructing the will of a “clear sensible majority” of people like themselves. 

     For example, progressives seem never to tire of pointing out that Hillary Clinton won more popular votes than did Donald Trump.  Narrowly speaking, this is true – but very right-wing candidates (and Gary Johnson and Evan McMullin were both very right-wing) won slightly more votes than progressives.  Moreover, a small but clear majority of the electorate voted for someone other than the only candidate who could keep Donald Trump from the White House. 

     Similarly, progressives celebrate Democrats’ increased share of congressional votes in the 2018 mid-term election.  They fail to note that a substantial portion of those gains result from a greater number of serious Democratic candidates running in – and losing – solidly Republican districts while fewer serious Republicans took fliers at deep blue seats. 

     When I travel to red states to oppose an Article V convention, I hear the same thing, in reverse:  Republicans denying that roughly half of the country genuinely supports policies that they would like to attribute to small coastal elites. 

     I firmly believe that the Right’s social, economic, and environmental positions put it on the wrong side of history, but it is demonstrably not on the wrong side of much of the current electorate.  Given the current electorate's views, the consistently progressive Congress producing legislation that Sandy and I could welcome would be much closer to illegitimate than the deadlocked Congress we actually have. 

     My response to Sandy’s second question – what is to be done? – flows from my response to his first.  The only remedy to the current situation is to change the hearts and minds of a significant fraction of the electorate.  This involves both changing their approaches to crucial issues and changing the ways we form coalitions.  This second point is crucial to understanding the seemingly positive results of issue polling.  On some important individual issues, the majority of voters favor progressive positions, but some of those progressives are also fiercely anti-abortion and hence unwilling to vote for Democrats who would espouse their positions on other issues.  Other support for progressive positions comes from voters whose white identity makes them strongly prefer the Republican Party.  This identity makes them easy prey for pseudo-populists like the current President. 

     The (still incomplete) transformation of attitudes toward LGBTQ people, propelled in part by people coming out to their friends and relatives, is an example worth noting of how attitudes can change, but it also is a difficult one to replicate.  Rep. Alexandria Ocasio-Cortez’s Green New Deal – seeking to heal the age-old disconnect between redistributionists and environmentalists – is another exciting effort to broaden the numbers of people feeling a stake in progressive policies.  And I was heartened when, after the 2016 election, several of my best students at Georgetown and Yale shelved their plans to move to Washington in favor of returning to their home states to become active in politics there. 

     But as we should have learned by now, no clever lawyers’ tricks will sustainably transform us into a more progressive, or environmentally responsible, nation while about half of the electorate is prepared to vote for, or fail to vote against, someone like Donald Trump.  The continued search for that legalistic holy grail is distracting at best and dangerous at worst. 

     Enthusiasm for an Article V convention seems a manifestation of a broader habit of imagining, and wanting to reach, a halcyon zone free from politics as we know them.  For many non-lawyers, that idyllic zone is the courts, particularly the Supreme Court.  Friends of great political sophistication – people who can accurately predict congressional votes on the subtlest of amendments – repeatedly ask me “how can the Court do that?” and become indignant when I respond “because it has five votes.” 

     Congress, remarkably, can seem that zone of dispassionate decision-making, at least on large issues, for some who do not follow it carefully.  Many were shocked and surprised that the Senate never came close to holding hearings on Merrick Garland’s nomination to the Supreme Court or that it could conduct such a superficial investigation into the allegations against Justice Kavanaugh.  People involved with numerous federal programs frequently ask me “how does Congress expect us to do our jobs with this level of funding?” and refuse to believe that estimates of programs’ needs play only a small part in the appropriations process. 

     My superficial impression is that international law (or particular organs of international law) and macroeconomics (or the Federal Reserve) are other places that some non-experts falsely endow with trans-political Solomonic wisdom. 

     The search for a realm above our current political ugliness seems to drive enthusiasm for an Article V convention among both progressives and many sincere conservatives.  Proponents have adroitly seized on this romanticism, calling it a “convention of the states” and suggesting that it is a place where concerned citizens from across the country come together in a non-partisan spirit of good will and respect to solve problems that politicians cannot.  Yet the campaign for an Article V convention is anything but a model of candor and respect for democracy.

     Article V enthusiasts assume that the ordinary rules of politics will somehow be suspended for a constitutional convention, yet they never even begin to explain how that would occur.  Without a compelling reason to believe that a convention will rise above politics, we have a clear moral obligation to analyze the likely political consequences of what we advocate. 

     And for progressives, the answers about an Article V convention are not pretty.  Currently, thirty state legislatures are controlled entirely by Republicans.  Surely they will appoint solidly Republican delegations to any Article V convention, likely composed of their own most ambitious members.  Even if those delegates somehow are not ideologues, they will be beholden to moneyed interests whom they hope will bankroll their future campaigns.  With more than two-thirds of the states gaining more power under a one-state-one-vote system, it is difficult to believe that the convention will agree to award states votes based on population.  Even if it did, however, unified Republican legislatures represent 59% of the states’ population.  Moreover, many of the modest laws we do have restricting the role of money in politics might not apply in the unfamiliar setting of an Article V convention. 

     We should not succumb to the response that things are so bad that we must try something, anything, even without a plausible reason to believe it will make things better.  History abounds with truly horrible, anti-democratic leaders who nonetheless proved not to be the worst their countries had to offer.  “It can’t get any worse than this” is almost never true and almost always irresponsible. 

     We can and must take back our country.  But we have to do it the hard way:  by winning over our fellow Americans one at a time.  There is no magic bullet nor, in a democracy, should there be.  


Sunday, July 14, 2019

What's newsworthy, or important, about the President's racist tweet-storm? (Short answer: It's not anything about Trump himself.)

Marty Lederman

As I'm sure you've all heard by now, the President of the United States issued a series of grotesque, race-baiting, xenophobic (not to mention factually inaccurate) tweets this morning.

Of course he did.  After all, it's a day of the week ending in "ay."

As horrifying as this is, it isn't news.  Nor does it tell us a single thing that everyone didn't already know about Trump, the audience to whom he addressed his bile, and the 40+ percent of the electorate who will vote for him again no matter what he does.  (Are you surprised in the least that the reaction on FoxNews was gleeful?)

So it's not an especially important or revealing incident, in and of itself.

What is important--although also, sad to say, hardly groundbreaking--is that not a single one of the 250 Republican members of Congress, nor anyone who has served in Trump's Administration, will publicly acknowledge that this behavior demonstrates Trump's patent unfitness to hold the highest office in the land (or any office, for that matter).  Indeed, very few of the 250 (any?) will so much as criticize the tweets, or call them what they are.

Why should this day be any different?  They were silent when his response to a plausible allegation of rape was "She's not my type."  They were silent when he cozied up to and coddled autocrats such as Orban, Putin, Erdogan, Kim Jong Un and bin Salman.  They were silent when he refused to allow anyone in his administration to be privy to his discussions with the Russian President.  They were silent when he--repeatedly--spewed outrageous calumnies against countless dedicated, talented and patriotic officials in the Intelligence Community, DOJ and the FBI.  They were (mostly) silent when he mocked John McCain for having been captured in Vietnam; when he referred to "blood coming out of her wherever" when speaking of Megyn Kelly; when he sneered at Khizr and Ghazala Khan; when he claimed that thousands ofNew Jersey Muslims cheered the 9/11 attacks and then openly mocked Serge Kovaleski's disability when the reporter called out his lies.  They were silent when the Mueller Report described a series of self-interested violations of his constitutional duties and well-established norms in an effort to undermine the most important counterintelligence investigation of a generation.  They were silent when he gave an Independence Day speech in which he described the Continental Army as "seiz[ing] victory from Cornwallis of Yorktown," "ramm[ing] the ramparts," taking over the airports, and then watching the star-spangled banner "wave[] defiant” at dawn.

The list, of course, goes on . . . and on, and on, and on.  "Grab 'em by the pussy."  "There are very fine people on both sides."  "Shithole countries."  Ad nauseam.  When one's project is (apparently) to lower the bar each and every day, there's no shortage of evidence of this vile man's unfitness for office and degradation of public discourse.  Every reader of this blog could easily identify another dozen or more examples.

There was a day (or so I'd like to think) in which there would have been a consensus outcry, among virtually all public officials and figures, and virtually all commentators, writers and even, yes, academics, no matter their partisan affiliations, that each and every one of these things was beyond the pale--that any single one of them obviously rendered Trump unfit for office.  Today, however, there's virtual silence from Republicans in power, and the intellectual and political classes that support them, as the deviancy is defined downward repeatedly.  (Indeed, even former President Bush and serious individuals who've worked for Trump and seen the deviancy up close--think Mattis/McMaster, et al.--hold their tongues.)  It's not Trump's behavior itself that's "normalized" the unthinkable--it's the utter absence of any concerted, bipartisan outrage and alarm in response.

To be sure, there are a handful of brave exceptions, most of whom are employed by or write under the aegis of the Washington Post, Lawfare or "Checks & Balances," such as Max Boot, George Conway, Jennifer Rubin, Peter Keisler, Jack Goldsmith, Anne Applebaum, Don Ayer (if you haven't already read it, check out this recent, extraordinary piece by Ayer, a man of great integrity who fears for what his nation and party have become), Charles Fried, Michael Gerson, and a few others.  They deserve our deep respect.  [UPDATE:  Here's the "Checks & Balances" statement "on President Trump’s Racist Tweets."  Just about pitch-perfect, as ever (although I would have liked them to say out loud what's implicit--namely, that the conduct demonstrates unfitness for office).]

This list, however, unfortunately does not go on and on.  It consists of only a handful of "Never-Trumpers" who could (and have) fit comfortably into David Frum's foyer.  And however large this group might be, they have no political constituency within the Republican Party.  The one elected GOP member of Congress who's had the temerity to call Trump's tweets this morning for what they were--"racist and disgusting"--is, not surprisingly, no longer welcome in the Party.  Sadly, it's undeniably true that "[a]mong conservatives, NeverTrumpism is already a fringe and irrelevant movement."

Meanwhile, many officials and lawyers in the Executive branch--including a significant number who are likely horrified by Trump's racialist words and agenda--continue to work assiduously to "cure" the President's policies of discriminatory taint by dressing them up in facially nondiscriminatory dress.  And several Justices of the Supreme Court--sometimes even a majority--will, in at least some important cases (e.g., Trump v. Hawaii; Thomas's dissent in the census case), ignore what everyone knows to be the truth:  They will, in the words of Chief Justice Roberts in the census case, "exhibit a naiveté from which ordinary citizens are free,”  and defer to the pretextual bases that the professional lawyers have conjured to defend the policies in question, no matter how ugly their obvious genesis or what function they play with Trump's intended audience.  [UPDATE:  And then, once the Court has deferred to the President, those same executive branch lawyers and officers reflexively assume that's a green light to implement what they know to be unlawfully motivated policies, when in truth it should be anything but--their oath should compel them, in that case, to smoke out the President's manifestly illegitimate motives (cf. Sally Yates).  As Professors Aleinikoff and Pillard wrote in 1998, “[i]f the political branches parrot the courts’ lenient scrutiny, everyone has deferred to everyone else, and nobody has done the full-fledged constitutional analysis.”  The Court’s deference to the President “does not give the political branches a blank check to do as they please, but leaves them with a special responsibility to comply with constitutional norms in view of a diminished judicial backstop.”  I discussed this question in greater detail here in the wake of the Court's decision in the Travel Ban case.]

To reiterate:  By now none of this is newsworthy.  It's our new normal.

So why do I bother writing about it?  Mostly to lament something else we've all known for quite a while, even if we're understandably reticent to acknowledge it and say it aloud because it's so deeply disconcerting--namely, that our revered institutions are not, and will not be, bulwarks against what was once unthinkable.  And therefore the answer to "Can It Happen Here?" is now also manifest, unequivocal . . . and terrifying:  Of course it could--probably with barely a whimper, and with the acquiescence (or worse) of the entirety of one of our major political parties and a significant minority of Americans.  If virtually no one in the GOP so much as objects to Trump's litany of outrages, is there any reason to think a majority of that Party would suddenly put principle and the Nation's well-being ahead of partisan advantage if the authoritarian winds sweeping over Europe and other places in the world arrive at our shores?

Saturday, July 13, 2019

Florida's New Poll Tax

Guest Blogger

Herman Schwartz

It is no secret that red state Republicans are working intensively to suppress the Democratic vote, particularly among minorities and the poor.  It must therefore have been particularly galling for Florida Republicans this past November  when nearly two thirds of Florida voters approved a ballot initiative amending their state constitution to eliminate the most potent weapon in the state  GOP arsenal – a lifetime ban on voting by felony offenders even after they have completed their sentences.

To undercut the amendment, now Article VI Section 4 of the Florida Constitution, this May Florida’s very red legislature passed a complicated and probably unconstitutional statute that will produce many arbitrary and inconsistent outcomes and be an administrative nightmare. It went into effect July 1 and will result in most of the intended beneficiaries of the amendment remaining disenfranchised.  Just a few weeks earlier on June 6th, Governor Rick DeSantis signed legislation making it much more difficult, if not impossible, for Floridians to adopt any more ballot initiatives.
Read more »

Friday, July 12, 2019

Why are we so docile as a polity? Reflections on David Super's post

Sandy Levinson

David Super's post, immediately below, is extremely important, at least as much, if not demonstrably more so, than any of my posts (or that of others) engaging in quasi-Talmudic exegesis of recent Supreme Court opinions.  As Fred Schauer demonstrated more than a decade ago, the Court has relatively little to say about the problems that most concern the majority of American citizens.  If one believes, as I do, that climate change is increasingly an existential challenge, it is absolutely necessary (and proper) for Congress to act.  The Court is a distinctly peripheral player.

So my question, which is entirely serious, is why the American public is so remarkably docile in the face of a legislative system that is, depending on one's own analysis, "broken," utterly "corrupt," "gridlocked," or otherwise incapable of responding to the challenges facing us as a republic, wherever one is on the ideological spectrum.  According to the latest Economist/YourGov poll, as listed in, 15% of the public "approves" of Congress, while 55% "disapprove."  Other polls, no doubt, would show some variation, but there is no reasonable perception that Congress enjoys the "approval" or even respect of the country at large.  This is a serious problem for any country that claims to be a representative democracy or to operate under a Republican Form of Republican.

Those some of us venerate as our "founders" engaged in truly active protest against what was described as the "illegitimate" system imposed on the colonists by the British.  The Boston Tea Party, of course, is the most dramatic single instance, though there were many others (including the burning down of Thomas Hutchinson's home in Boston).  1787, was, among other things, a dramatic repudiation of the "imbecilic" government established by the Articles of Confederation and the response of what Michael Karman describes as a "coup" by those in Philadelphia and the delegates at the various state conventions.

So the (altogether) serious questions for David and anyone else who is appalled by what he accurately describes as our basically somnolent Congress (save for the Senate's packing the judiciary with right-wing Republicans) are 1) whether the Congress should be frankly assessed as fundamentally "illegitimate" (especially if we add to the analysis the obscene roll played by money in determining who can, as a practical matter, participate in national-level politics); and 2) what is to be done?  Is it is some sense a fundamental error to continue to organize marches against Donald Trump, as truly egregious and march-worthy as he is, instead of organizing marches against Congress?  I believe that Jack agrees with my argument, set out in our new book Democracy and Dysfunctioni, that we would be fundamentally just as depressed had Hillary won, given the self-evident truth that she would be unable to get anything significant through Congress (especially if we assume, as we must, that even had she won the Senate would continue to be controlled by the awful Mitch McConnell).  (And, in addition, had she won we would be looking forward, as it were, to a Republican sweep in 2020, probably following devastating election defeats in 2018 by an invigorated GOP running against a demoralized Democratic Party.)

It's relatively easy to imagine organizing against a despicable president.  By definition, he can be personalized, and one can call not only for defeat at the next election, but even for impeachment sooner than that.  It's far harder to imagine organizing against Congress.  Mitch McConnell is indeed despicable, and everyone should be contributing to his opponent, but we should face the fact that even his removal would not solve the problems created in 1787.  Bernie, for example, is entirely unlikely to note that there is no defense for his and Patrick Leahy's having equal voting power to Ted Cruz and John Cornyn, even if most readers of Balkanization applaud that in the present situation.  Even if the filibuster is eliminated, as is increasingly being suggested, should Democrats retake the White House and Senate, in order to confront problems dealing with climate change, there is no reason at all to expect that the Democratic senators from the small coal-producing states like Montana and West Virginia will enlist in the necessary "war against coal" and in favor of renewable energy.  Do we really expect a Democratic Senator from Kentucky to do so?

David, of course, has consistently been a critic of my call for a new constitutional convention (as is true of most of my friends, family, and professional colleagues).  But, still, the question remains:  Is our only alternative to engage in "thought and prayer" when confronted with the horrible reality of the contemporary Congress (which obviously consists of both a House and a Senate)?  Or should we be thinking more imaginatively of new means of protest and direct action with regard to those who purport to govern us?

Thursday, July 11, 2019

What is Congress Doing?

David Super

     The short answer is “confirmations, confirmations, and more confirmations.” 

     Examining what Congress has been doing is instructive both about our near-term fiscal and economic prospects and about the state of our democracy in general.

     At this writing, we are 81 calendar days away from the beginning of Fiscal Year 2020.  One or both chambers of Congress are scheduled to sit for just 32 of those days.  Without new appropriations legislation, much of the federal government will shut down October 1.  Although Congress could pass a short-term continuing resolution, that, too, would cause considerable damage. 

     We also are roughly two months and perhaps twenty session days before the federal government may reach the limit of its ability to fund current operations under the statutory debt ceiling.  If corporate tax revenues continue to plummet as a result of the 2017 tax law, the U.S. Government could be facing default in early September.

     Official Washington, and particularly the U.S. Senate, seems strikingly nonplused.  Last month, the House passed ten of the twelve appropriations bills required for the government to operate.  Left behind were the relatively inconsequential Legislative Branch appropriations bill and the bitterly contentious Homeland Security appropriations legislation.  House leaders apparently see little point in forcing their Members to take difficult and divisive votes on immigration-related questions when having a House-passed bill likely will be irrelevant to the final outcome:  these issues will be negotiated with the Senate and the White House and could well trigger another government shutdown. 

     In the Senate, appropriations legislation is going nowhere.  Not one single bill has been considered even at the subcommittee level, and no committee or floor action is on the horizon.  Understanding why provides important insights into our nation’s politics.

     One reason appropriations bills are not moving is the lack of floor time.  Although the Senate is scheduled to be in session several more days than the House, Majority Leader McConnell has jammed the calendar full of confirmations.  Appropriations bills take time in the Senate as its rules leave senators considerable latitude to offer amendments.  This does not, however, explain why the Senate Appropriations Committee and its subcommittees have taken no public action.  In prior years, the Senate did not always finish moving all appropriations through the floor, but it had committee bills that set out its positions in September negotiations with the House on omnibus appropriations legislation. 

     Another reason appropriations bills are not moving through the Senate relates to the bizarre budget process that has evolved over the past decade.  Under the Congressional Budget Act of 1974, the House and Senate are each supposed to pass budget resolutions that propose spending levels for the coming year.  A House-Senate conference committee then merges the two chambers’ versions into a final concurrent budget resolution, which sets binding limits.  Some years back, inability to reach a conference agree­ment forced the two chambers to devise a mechanism for proceeding with appropriations bills in the absence of a concurrent budget resolution.  That work-around has become the norm ever since; despite expedited procedures for passing budget resolutions that preclude filibusters, the Senate rarely even tries to do so.    

     A warped version of the Congressional Budget Act process has reemerged in response to the sequestration that flowed from the Deficit Control Act of 2011, to which President Obama agreed in exchange for congressional Republicans’ passage of an increase to the statutory debt limit.  The DCA requires deep across-the-board cuts if discretionary spending exceeds levels that both parties recognize are unrealistically low.  To avoid the widespread disruptions that these cuts would yield, Congress and Presidents Obama and Trump have reached a series of temporary agreements to raise the sequestration triggers, typically for two years at a time. 

     As a result, in odd-numbered years, appropriators do not know the total amount permitted for their twelve bills until a new two-year deal on budget caps is reached.  Once the overall level is set, the appropriators meet and divide available funds among the twelve subcommittees that write each of the twelve annual appropriations bills (e.g., Defense Appropriations, Labor-HHS-Education Appropriations, Transportation-HUD Appropriations).  But without a deal on how much to raise the sequestration levels, neither the Appropriations Committees nor their subcommittees have any idea how much they can afford or what tradeoffs they will face.

     Divisions within the Administration, and between the Administration and Senate Republicans, were preventing serious negotiations from beginning with Democrats well into June.  Feeling burned by President Trump’s history of renouncing deals his aides have reached on his behalf, House Speaker Nancy Pelosi appears to have concluded that a long series of meetings with subordinate Administration officials would serve little purpose until an imminent deadline forces the President to decide what he really wants.  The President publicly calling the Speaker “horrible” and “a disgrace” probably did little to improve the climate for negotiations.

     In the absence of an agreement on new budget caps, House appropriators have written bills to fit within their preferred cap levels.  This runs the risk of disappointing some of their supporters if, as is likely, the final bipartisan agreement results in caps lower than they are assuming and proposed appropriations must be cut. 

     The Senate, however, has chosen not to act at all on appropriations.  If the Senate Republican leadership moves bills that conform with the existing sequester caps, it will force politically vulnerable senators to vote for draconian, indefensible cuts to popular programs.  If it follows the House’s lead and writes bills to a more realistic level, it will open Republicans to attack (and possible primary challenges) from the right while effectively conceding most of the increases Democrats desire in advance of the eventual cap negotiations.  Much better just to confirm more judges and worry about appropriations later.

     The result of the Senate’s failure to move appropriation bills is a further erosion in transparency in an already fairly opaque budget process.  No senator this year will have to declare her or himself on any appropriations issues in a meaningful way:  none will propose, or fail to propose, amendments to augment or cut spending on particular programs, none will vote on amendments proposed by others, and none will vote on individual appropriations bills (as opposed to an eleventh-hour make-or-break omnibus on which they can claim their hands were tied).  Once a caps agreement is reached, likely at the last minute, feverish negotiations will ensue between House and Senate appropriations chairs.  Not only will the negotiations themselves be held in secret, but even the Senate’s bargaining position will be secret, known only to a few senior appropriators.  The public will have no opportunity to criticize and pressure their senators over particular appropriations that seem too low or too high. 

     Although less obviously, this change also increases partisanship.  Democrats will still have a say in the final appropriations legislation – they control both the House and more than enough votes in the Senate to block any appropriations bill – but this power will be more concentrated in the hands of a few leaders.  Needing no Democratic votes in subcommittee, full committee, or on the floor, Senate Republican appropriators are free to craft their negotiating positions on their own.  To have influence on an issue, Senate Democrats must go to their leaders and make the difficult case that this issue is important enough to warrant threatening a government shutdown. 

     All this becomes even more difficult if, as seems likely, legislation raising the sequestration caps is combined with omnibus appropriations legislation and legislation raising the debt ceiling.  Treasury Secretary Steve Mnuchin seems riveted on the need to raise the debt ceiling; whether the President and the rest of his senior staff share that concern remains unclear.  If the threat of default looms over House-Senate-White House negotiations, the capacity to accommodate even quite compelling concerns, or to excise outrageous special-interest provisions, will be even smaller.  We likely will get bad, even embarrassing, appropriations laws with no accessible record of who promoted the offending provisions.

     Yeah, but how about those judges!


Wednesday, July 10, 2019

Gibberish in Supreme Court opinions:: Given that John Roberts is scarcely stupid, what explains the stupidity of part of his opinion in Rucho?

Sandy Levinson

John Roberts is, not a stupid man, which means that astonishing sentences and analytic gaps in his opinions must be interpreted with special care.  Consider various possibilities:  One, familiar to first-year law students, is the belief that our own failures of immediate understanding are ascribable to our own intellectual defects.  Judges, especially on the Supreme Court, are by definition unusually capable, even brilliant.  Deep study will therefore unlock the mysteries of the law and, along the way, reassure us about the capacities of those who purport to judge us.  The second, of course, which I emphasize to my own students, is that the perceived failures are very real, that judges, including members of the U.S. Supreme Court, should not be the beneficiaries of any significant “halo effects.”  Some are indeed brilliant, some are definitely not.  And even the former can make remarkable mistakes, so that it is useful to try to figure out why. 

One explanation, of course, as Mark Tushnet has recently suggested with regard to Justice Gorsuch’s questionable presentation of the facts of Schechter Poultry, is that the Justice in question, however smart (as demonstrated, perhaps, by attaining a Ph.D. and publishing a book), may also be in the grips of a particular ideology that leads to a tendentious description of the external world.  (Indeed, this might be regarded, if one is a “social constructionist,” as the basic meaning of “ideology.”  The problem, of course, is to agree on what might constitute an “ideology-free” description of the external world.) Another, perhaps, is that justices who feel some special need, unlike, say, Justice Thomas, to demonstrate their fidelity to often incoherent precedents, will inevitably write near-gibberish as a result.  Or, of course, there is the practical problem of “getting to five” (and, on occasion, even “to nine”), i.e., the necessity of writing dubious paragraphs, in terms of any coherent overall argument, in order to gain the vote of a colleague.  See, e.g., Scalia’s totally unexplicated announcement in Heller that existing federal gun control laws are perfectly all right, presumably offered in order to pick up Kennedy’s necessary vote.

So let me turn now to the opinion authored by Chief Justice Roberts in Rucho v. Common Cause, the “partisan gerrymandering case.”  Most of it strikes me as basically a restatement of Frankfurter’s anguished dissent in Baker v. Carr, correctly warning his colleagues that the Court was about to enter a “political thicket” from which it would never escape.  Although there are a few hardy souls—I think of my friend Earl Maltz at Rutgers Camden Law School—who continue to assert that Baker and, even more certainly, Reynolds v. Sims, were wrongly decided, I take it that both have been absorbed into the canon under the rubric of the constitutional necessity of “one-person/one-vote.”  As I wrote over fifteen years ago, in an article published in the U.N.C. Law Review subtitled “A Mantra in Search of Meaning,” the Court has never deigned to offer a coherent explanation of what exactly that term is supposed to mean.  Indeed, it is a self-evident truth that equal population is not remotely identical with an equal number of voters, so that, by definition, the “weight” of a vote will differ among districts with equal populations.  (Just ask yourself, assuming the “weight” of your vote is the only consideration, whether, assuming equal total populations, you’d rather live in a bedroom suburb with thousands of children, on the one hand, or, instead, in a retirement village consisting only of fellow senior citizens (who tend to have a high turnout rate, in addition), or in a community that included, say, a prison housing thousands of convicts, or, for that matter, a city with many resident aliens (let alone undocumented aliens).  In any event, though, the mantra continues to be part of our working doctrine of American constitutional law, and judges, including members of the Supreme Court, are expected to apply it.

The issue in Rucho, of course, is whether the mantra has implications for nakedly partisan gerrymandering. The answer, according to Roberts, is no, since the latter is completely non-justiciable, unlike “ordinary” districting.  So we come to the paragraphs that made me scratch my head about Roberts’s analytic abilities and, therefore, the degree to which “we,” whether defined as professional legal academics or ordinary citizens, should have much real regard for even the most eminent of judges.  They are found at p. 20 of the slip opinion:

Appellees contend that if we can adjudicate one-person, one-vote claims, we can also assess partisan gerrymandering claims. But the one-person, one-vote rule is relatively easy to administer as a matter of math. The same cannot be said of partisan gerrymandering claims, because the Constitution supplies no objective measure for assessing whether a districting map treats a political party fairly. It hardly follows from the principle that each person must have an equal say in the election of representatives that a person is entitled to have his political party achieve representation in some way commensurate to its share of statewide support. More fundamentally, “vote dilution” in the one-person, one-vote cases refers to the idea that each vote must carry equal weight. In other words, each representative must be accountable to (approximately) the same number of constituents. That requirement does not extend to political parties. (emphasis added).

To put it bluntly, and ungently, this is indeed gibberish.  The one-person/one-vote standard is “easy to administer as a matter of math” only because, as already suggested, the equal population standard is totally unconnected, as an analytic matter, to the purported standard, as described by Roberts, that “each person must have an equal say” or that “each vote must carry equal weight.”  To say that “in other words,” one-person, one-vote” is synonymous with the proposition that “each representative must be accountable  to (approximately) the same number of constituents” is indefensible as a matter of ordinary logic and syntax, though, of course, it is perfectly sensible in the Alice-in-Wonderland world of legal doctrine, where judges can offer de-facto “performative utterances” that by virtue of their own authority, enable X to be synonymous with Y.  I would go so far as to assert that no thoughtful person could really believe that the “in other words” follows, save in Wonderland.  At the very least, such an assertion rests on an entirely underdeveloped theory of what it means to call someone a “representative” and to suggest that “representatives” are in fact, as an empirical matter, “accountable” in some specifiable manner, to all their “constituents,” whatever, say, their party identity, their eligibility to vote, or, perhaps, even their status as citizens.  No serious person would assert such a thing.

So the serious question is whether John Roberts should be regarded as a serious person when writing such drivel  This leads me to another observation:  His opinion is totally devoid any reference to the copious literature developed by political scientists or political theorists about the theory and practice of what we’d like to think of as “representative democracy.”  Instead, we are treated to summaries of the purported “lessons” taught not “by experience,” one of the actual mantras of the Founding generation, but, instead, by prior justices writing purportedly relevant opinions.  That is, we are supposed to believe that justices past and present are genuine “authorities” on how the American political system actually works.  Roberts feels completely entitled—perhaps this comes with the job—to offer pronouncements that, to put it mildly, are controversial among the community that actually studies the empirics of our political system.  Consider his assertion, p. 24, that “Many voters split their tickets.”  How does he know?  All research that I am familiar with suggests that ticket splitting is a declining phenomenon.  Indeed, in my book Framed, I discuss ticket-splitting (pp. 237-239) and even include a fine table (not my own creation) that demonstrates its declining nature.  It is, frankly, shocking that such ignorance is now enshrined in a majority opinion that will, I am afraid, mislead impressionable law students who wrongly believe that Supreme Court opinions can be taken seriously when they make assertions about the world outside the cloistered chambers of the Justices. (Again, think of Tushnet’s evisceration of Gorsuch regarding “sick chickens.”)  There is no reason to take Roberts’s assertion with any greater seriousness than the assertions of one’s crotchety relative at Thanksgiving.

I want to emphasize that my criticism (perhaps bordering contempt) for this aspect of Roberts’s performance in Rucho is entirely separate from my views about the outcome of the case.  There was nothing stupid about Frankfurter’s dissent in Baker, nor is there anything stupid about the suggestion that taking on the problem of partisan gerrymandering would exponentially increase the Court’s need to wander in the “political thicket,” with inevitable rancor and polarization.  Probably not surprisingly, I am persuaded by Justice Kagan’s eloquent dissent that the case should have been decided differently and that the Court is ultimately turning a blind eye to what constitutes a genuine threat to our constitutional order.  I must add, though, that I have my qualms about her own approach, which relies very heavily on whether a particular redistricting map is an “outlier” among literally hundreds of alternative possibilities and, therefore, explicable only as a manifestation of a desire to maximize raw political control of the redistricting process.  My fear, frankly, is that it works to correct only the most truly egregious of partisan gerrymandering, as found in North Carolina and Maryland, while leaving anything short acceptable.  And I fear that a contrary decision would have served to suppress  a vitally necessary national conversation about what in the 21st century constitutes the most desirable form of “representative democracy.”  Frankfurter was legitimately worried, like his mentor James Bradley Thayer, that reliance on judicial review would serve effectively to sedate the pubic by encouraging them to believe that the Court would adequately respond to the challenges facing the country.   

She, like Roberts, goes out of her way to say that the Constitution in no way requires any form of “proportional representation.”  One might even agree with that as a proposition of formal analysis of constitutional meaning.  But I have become convinced that our reliance on single-member districting, with first-past-the-post victors, is at least as much a threat to our political order as what North Carolina and Maryland did.  As I suggested in an earlier post, one welcome result of the decision in Rucho would be a genuine mass movement—think in this context of the movement for woman’s suffrage in Great Britain and the United States in the early 20th century—that threatened genuine disruption if political institutions did not reform themselves.  I continue to support a new constitutional convention and believe that designing a suitable electoral system, which would include some form of proportional representation, would be one of the most vital issues to discuss.
So, in conclusion, I think that a “reasonable person” can agree with the majority’s conclusion in Rucho. and, indeed, use the decision as the basis for a welcome mass movement demanding far more significant change than the Supreme Court wold ever require.  But I would hope that the same person would agree that the cited paragraphs demonstrate, if not stupidity, that at least an unfortunate tendency toward almost literal mindlessness and judicial arrogance about some of the most important realities that face us as a political system. 

Dear Judges Elrod, Engelhardt and King: Please Don't Confirm the Preposterous Reading of Section 5000A of the ACA

Marty Lederman

If yesterday’s oral argument is any indication, some of you are concerned that Section 5000A of the Affordable Care Act, as amended by Congress in 2017, must be read as imposing a legal obligation, or “mandate,” that many Americans must maintain a certain form of health insurance.  The apparent basis for this reading—again, if the oral argument is any indication—is that (i) the word “shall” appears in the first subsection of that provision, § 5000A(a) (“[a]n applicable individual shall . . .  [maintain insurance]”); and (ii) the 2017 Congress “zeroed”-out the shared responsibility payment option beginning in 2019.

If I may respectfully suggest:  That reading of the 2017 Congress’s handiwork, which District Court Judge O’Connor essentially adopted and which Texas and the Department of Justice are urging you to affirm, is an embarrassment, and you shouldn’t rely upon it in your ruling.

Why is it embarrassing?  There are at least four reasons.  [Note:  The House of Representatives discusses these reasons in further detail in its briefs, especially its reply brief, and I elaborated upon them in two earlier posts.]

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Gerrymandering and the State Courts

Guest Blogger

Philip Bobbitt

Without getting into the merits of the North Carolina gerrymandering case, or the arguments presented in the opinion of Chief Justice Roberts for the majority, the way forward to curb this insidious practice seems clear.  In some states, of course, the electoral process itself will correct matters because the population is disgusted by attempts to rob it of its birthright as citizens and voters in a democracy.  But in some states the very success of partisan gerrymandering will make remedies by the state legislatures difficult to achieve.

What every commentator I have encountered has ignored is the enhanced role the state courts can play after the North Carolina case.  State courts are the final word on construing their own state constitutions.  Most states have some version of the equal protection and the republican form of government clauses that are found in the U.S. Constitution—which provide the bases for challenging partisan gerrymandering.  But state courts are not bound by the federal courts including the U.S. Supreme Court with respect to the application of such clauses in state constitutions excepting insofar as that application is in conflict with the U.S. constitution.

This Janus-faced aspect of state constitutions---that their construction by the state’s highest court is definitive excepting only when the provision to be construed is violative of the U.S constitution—is highly significant for where we go from here in containing and reversing partisan gerrymandering.

There is more to the “passive virtues” exhibited by the Roberts opinion than has been acknowledged but in any event, such prudential arguments as applied to U.S. Supreme Court jurisprudence need not prevent the state supreme courts from acting to strike down partisan gerrymandering.  The rationale for judicial avoidance at the federal level does not really apply to state courts.  Furthermore, unlike the state legislatures, those state supreme courts that are elected are not chosen by district but by the entire state electorate.  If, as it has been shown to be the case in some states, gerrymandering has produced voting results at odds with the preferences of the total population this can be rectified by those states’s judiciaries.  For those who want to follow up on this idea, a good place to start would be “Who Is Responsible for Republican Government,” a brilliant essay by one of the leading constitutional scholars of the post-war period and a former chief justice of the Oregon Supreme Court, Hans Linde, see 65 Univ. Colorado L. Rev.709 (1994).

And indeed In League of Women Voters of Pennsylvania v. Commonwealth of Pennsylvania, the Pennsylvania Supreme Court held last year that the congressional map drawn by the Republican legislature in 2011 violated that state’s constitutional guarantee of “free and equal” elections. What gives this approach such salience now, however, is the recent holding by the U.S Supreme Court in Rucho v. Common Cause, which relied on time-honored doctrines of prudence that attempt to keep the federal judiciary out of political questions.  Many commentators excoriated this holding when in fact, for the reasons I have indicated that the state courts are the best route to reversing partisan gerrymandering, the Rucho majority insulates the findings of state supreme courts that are construing state constitutions from reversal on federal constitutional grounds when gerrymandering is being evaluated.

Contrary to reaction from political journalists, the U.S. Supreme Court did not “legitimize a cornerstone element of voter suppression” in Rucho. In fact, by refusing to rule on the merits the Court studiedly did not legitimate the underlying practice at issue.  Those who oppose partisan gerrymandering should rejoice in the Roberts opinion.  Rather than reading it for something it does not do, we should appreciate the invitation to the state courts to accomplish that for which there is no majority on the U.S. Supreme Court, the reversal of legislative redistricting when undertaken on palpably partisan grounds.  Appearances to the contrary are misleading.

Philip C. Bobbitt is the Herbert Wechsler Professor of Federal Jurisprudence and director for the Center for National Security at Columbia Law School. You can reach him by e-mail at pbobbi at

Tuesday, July 09, 2019

Ideology, Not Republican Politics, Makes John Roberts Run – Again

Guest Blogger

Simon Lazarus

No less than the Trump administration, Supreme Court pundits felt blind-sided by Chief Justice John Roberts’ rejection, in Department of Commerce v. New York, of the Commerce Department’s rationale for adding a citizenship question to the 2020 census.  They attributed the Chief’s stunner to political calculation, “echo[ing] his surprise affirmation of the Affordable Care Act in 2012,” which in their view had similarly been designed to shield the Court from perceptions of partisanship and to “lower political tensions.” On the left, some saw a more Machiavellian Roberts maneuver, temporarily pausing his Court’s relentless rightward march, merely to “modulat[e] public uproar,” while teaching his White House and congressional allies that, while he is “on their side,” they must “lie better next time” than Commerce Secretary Wilbur Ross’ ham-handed ploy to weaponize the census.

To be sure, the nation’s polarized state, and in particular the current president’s whack-a-mole penchant for defying established legal norms, challenge the Court’s independent stature in circumstances that require deft navigation by its helmsman – necessarily involving artful political judgment.  But to dismiss Roberts’ census decision as simply or even primarily political, is wrong, misleading, and even dangerous – as was the identical, widespread misread of his NFIB v. Sebelius decision to uphold the Affordable Care Act individual mandate as a tax, a point I elaborated in a recent Balkinization post. It is not only more straightforward, but sounder to forgo such unmoored psychological speculation, and, instead, focus on what he actually decided, and, especially, what he wrote.  In that light, DOC v. New York reaffirms, in the mode of NFIB and its too-little-noticed kin, King v. Burwell, that, on those (to date, rare) occasions when conservative, i.e., Republican, political priorities clash with Roberts’ ideological or jurisprudential druthers, he goes with the latter.

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Monday, July 08, 2019

The Census and Section Two of the Fourteenth Amendment

Gerard N. Magliocca

In today's Wall Street Journal, David Rifkin and Gilson Grey have an op-ed arguing that Section Two of the Fourteenth Amendment gives the President the authority to put a citizenship question on the census form. I have some expertise on this subject, as I wrote an article last year on the relationship between Section Two, the Census, and congressional reapportionment.

Rifkin and Grey are half-right. Section Two does give the President the authority to add a citizenship question, but only if the information required by Section Two about voting rights is also solicited. The model is the 1870 Census, which asked all of questions posed by Section Two. Rifkin and Grey are instead saying that one part of Section Two (citizenship) is mandatory while the other parts (on the denial or abridgment of suffrage) are optional. That cannot be right. They stand and fall together. (Indeed, their quote from John Bingham on Section Two confirms this point.)

Another problem, of course, is that they only thought of this argument today. The Government will be hard pressed under the APA to use Section Two as a lawful justification now. (Alas, neither the DOJ nor the Commerce Department ever cited my paper or asked me about the analysis.)

So nice try, but no cigar.

Sunday, July 07, 2019

Census Citizenship Question Re-do? Part I: Moment of Truth (and Integrity) for the Office of the Solicitor General

Marty Lederman

On Thursday, June 27, the Supreme Court held that Commerce Secretary Wilbur Ross's March 2018 order, directing the Census Bureau to add a citizenship question to the 2020 Census questionnaire, "rested on a pretextual basis," i.e., that it "cannot be adequately explained in terms" of the "sole stated reason" Ross offered--a purported request by the Department of Justice "for improved citizenship data to better enforce [Section 2 of the Voting Rights Act]."  "Our review is deferential," wrote Chief Justice Roberts, "but we are 'not required to exhibit a naiveté from which ordinary citizens are free.'" (quoting Judge Henry Friendly).  For a court to "[a]ccept[] contrived reasons" for an agency action, he explained, would "defeat the purpose of the enterprise" of administrative law and render judicial review no "more than an empty ritual."

The Court therefore affirmed Judge Jesse Furman's "remand" of the Ross directive back to the Secretary.

There's been some confusion about what it means to "remand" a directive back to the agency in this context.  Here, because Judge Furman also vacated the Secretary's directive (a vacatur the Supreme Court did not reverse), his additional "remand" order that the Supreme Court affirmed did not have much, if any, legal effect, as Judge Furman himself explained:
[I]t is not entirely clear what it would mean to refrain from remand in the circumstances of these cases.  By analogy to appellate litigation, a remand is arguably necessary to restore an agency's “jurisdiction” where an adjudicatory decision or formal rulemaking was under review.  Here, by contrast, Secretary Ross's “jurisdiction” over the 2020 census has presumably continued unabated throughout this litigation, and his ongoing obligation to execute his statutory duties with respect to the census will survive whatever remedy the Court orders.  Put differently, it is hard to see how the Court's decision whether or not to “remand” in these cases could affect the Secretary's ongoing statutory authority over the form and content of the census questionnaire.  Having said all that, and if only to avoid confusion, the Court will “remand” the case to the extent that such an order is necessary to restore the Secretary's jurisdiction over the census questionnaire.  It goes without saying that such remand is limited to further action not inconsistent with the Court's Orders.
In other words, the remand simply confirmed that "Secretary Ross retains the same statutory authority over the census that he had before the Court’s decision today, provided (as always) that he exercises it consistent with the APA and applicable law (and the Court’s order)."

That's how the government is (appropriately) interpreting the vacatur and remand, too (especially when read alongside Judge Furman's preliminary injunction against adding a citizenship question).  As DOJ lawyers told the Judge last Wednesday:  "Defendants can confirm that they are taking no action in contravention of the injunction of this Court, which vacated the Secretary’s March 2018 decision to place a citizenship question on the 2020 decennial census, and which was affirmed in relevant part by the Supreme Court and remains in place to protect the interests of Plaintiffs in this matter."  Similarly, they wrote to Judge Hazel in Maryland on Friday that "the permanent injunction precluding the Commerce Department from 'implementing Secretary Ross’s March 26, 2018 decision and from adding a citizenship question to the 2020 decennial census,' remains in place."  (The way one DOJ attorney put the point to Judge Hazel on Wednesday is that Ross's "basis for the citizenship question is firmly enjoined, vacated, and does not exist.")

And so that ought to be the end of the matter, right?  Because even though Judge Furman and the Supreme Court nominally remanded the directive back to Secretary Ross, where he was free, at least in theory, to begin anew (i.e., to issue a new directive with a new rationale), the Department of Justice--including the Solicitor General--has repeatedly insisted to courts that last Sunday, June 30, was a hard deadline for finalizing the form of the census questionnaire.  Indeed, the Department of Justice represented to the courts that the form of the questionnaire could not be changed after June without an additional appropriation of funds--something that's obviously not going to happen.  (More on this June deadline issue below.)

Not only didn't Secretary Ross promulgate any new directive by June 30, but there was never any chance the Census Bureau might add the citizenship question to the census form by then--or any time soon thereafter.  As DOJ wrote to Judge Hazel on Friday, "any new decision by the Department of Commerce on remand providing a new rationale for reinstating a citizenship question on the census will constitute a new final agency action," and plaintiffs would be "fully entitled to challenge that decision at that time," followed by extensive discovery, perhaps trials, briefing, and several layers of judicial review.

And so, not surprisingly, by Tuesday, July 2, it appeared that the Commerce and Justice Departments had given up the ghost:  They'd determined that there was no way for Secretary Ross to promulgate another, new directive, supported by a new, supportable, not-contrived rationale--or, at the very least, that he couldn't do so now that the hard deadline had come and gone.  And DOJ officials reportedly "told the White House that the case was a dead-end and that pursuing it would be a waste of time."  Thus, late Tuesday afternoon, Department of Justice attorneys "confirmed" to counsel for the challenging parties in the New York case "that the decision has been made to print the 2020 Decennial Census questionnaire without a citizenship question, and that the printer has been instructed to begin the printing process.”  Later that evening, another DOJ lawyer told Judge Hazel, in the District of Maryland, the same thing, and confirmed that the printer is now at work creating the questionnaire sans citizenship question.

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Saturday, July 06, 2019

The Evenwel Gambit

Joseph Fishkin

I’m as surprised as everyone else that over the past 24 hours the Administration decided to flipflop, in such wildly Trumpian fashion, on whether to keep fighting to add a citizenship question to the Census. Our government’s clown show approach raises the usual questions of whether it is better or worse to temper malevolence with incompetence. (The Census fight seems to be one of those instances where the incompetence helpfully undermines the malevolence, rather than compounding it; other examples point the other way.)

Now that the administration is deciding to take more time to huddle together and settle on a new cover story, it seems to me that their most likely path is also one of the most dangerous: claim that in fact we need to add the citizenship question in order to redistrict in 2021 on the basis of citizen voting age population or CVAP, rather than on the basis of total population.

To review: Many of us argued from the start of this Census question fiasco that behind the flagrantly pretextual “we want to enforce the Voting Rights Act” cover story, there seemed to be two related but distinct reasons the Trump Administration was trying to add this question to this Census. The first—call it Real Reason 1—was to cause a targeted drop in the Census response rate among some large groups of people who don’t vote Republican often enough (mainly respondents with immigrants in their households or communities). The second—call it Real Reason 2—was to create block-level data on citizenship, in an effort to build a better foundation for Republican redistricters in 2021 to switch the fundamental basis of representation within states or other jurisdictions, abandoning the total population approach that is not only the near-universal American practice, but also the one specifically required by the Fourteenth Amendment, after considerable debate, in the federal context of the apportionment of congressional seats among states (that’s a topic for another post).  In place of total population, these Republican line-drawers would attempt to equalize the citizen voting age population or CVAP, which is supposed to stand in as a rough proxy for eligible voters (there is no good data for eligible voters). That way, communities that are older, and have fewer non-citizens, would get more representation, and communities that are younger and have more non-citizens would get less representation. Both of these two moves pretty obviously—in the immortal, material words of Republican redistricting mastermind Thomas Hoffeler—“would be advantageous to Republicans and Non-Hispanic Whites.”

Now that the Administration’s initial cover story has effectively been laughed out of the Supreme Court, any new effort to add the question faces obstacles. Imagine that you are the beleaguered government lawyer tasked with defending this indefensible thing in court. (Real advice: resign. Whistleblower aid is available. But let’s leave that aside.) One option you have is to try to concoct a completely new fake cover story. But that is probably a bad option. You don’t want to walk into court with a post hoc justification, concocted recently by lawyers, that was no part of the original decision-making process. That’s never a good look. Even if notionally the Administration claims to be starting completely over with a “new” decision-making process, leading to a new executive order, the haste of said process, and the involvement of high-level officials such as Secretary Ross in both processes, will make it difficult to plausibly sever the new order entirely from the original, years-long administration effort.   So what other options are there?  A second option might be to try to go with a very thin justification, of the form “we are adding this question because we just think it’s important to know how many citizens there are in this country.” But that approach is going to collapse under further questioning that my four-year old could manage (“why?”), and doesn’t seem well-calibrated to persuade a federal district judge. That leaves the third option which is this: just go with one or both of Real Reasons 1 and 2. Those reasons offer one great advantage: they’re honest.  Evidence in the record suggests that they were indeed central to the Administration’s decision-making process—evidence that, frankly, the plaintiffs have already carefully uncovered and pointed out in federal court. The only downside is that these reasons are, to their core, some combination of partisan and racial in their intent.

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Friday, July 05, 2019

LGBT discrimination is still sex discrimination

Andrew Koppelman

The Supreme Court will shortly consider whether Title VII of the Civil Rights Act of 1964, which prohibits sex discrimination in employment, covers discrimination on the basis of sexual orientation and gender identity.  The lower courts are split on whether such protection is granted by the plain language of the statute.  The case will be argued October 8.

July 3 was the deadline for filing amicus briefs, and Yale Law Prof. William Eskridge and I coauthored one, arguing that a textualist approach to interpretation, which has been endorsed by all the conservative justices, entails that LGBT discrimination is sex discrimination.  The Court cannot deny the sex discrimination claim without betraying its commitment to textualism.  The brief is here.

If anything in it persuades you, that part was probably written by Bill Eskridge.

Epistemic Closure at the Supreme Court

Mark Tushnet

Justice Gorsuch's dissent in Gundy v. United States relies on Amity Shlaes's book The Forgotten Man for this description of some of the facts in the Schechter cases: "Kosher butchers such as the Schechters had a hard time following these rules. Yet the government apparently singled out the Schechters as a test case."  According to Wikipedia (which on this question is accurate), Shlaes is "an American author and newspaper and magazine columnist ... [who] writes about politics and economics from a US libertarian perspective." Her description of the Schechter case is consistent with that description of her perspective, and (depending on what Justice Gorsuch had in mind when referring to the difficulties kosher butchers had) almost certainly inaccurate.

One of the requirements the Schechters violated was a "straight killing" rule, under which buyers had to purchase all the chickens in a coop (or half coop) after chickens unfit for consumption had been removed. Shlaes writes that "to suggest ... that Schechter chickens were unfit was ... to suggest that their kosher slaughterhouse was not really kosher," because, she suggests, under Jewish law "[c]ustomers ... had the right to choose their birds, and this in turn ensured that everyone involved had a chance to determine whether the product was as healthy as possible." (I write "suggests" because Shlaes doesn't lay out the argument she appears to be making, but I can't figure out anything else that she could mean by "not really kosher.")

Shlaes provides no citation to, or discussion of, the applicable Jewish law, and according to one academic expert in the field I consulted, nothing in the law of ritual slaughter appears to require that customers as well as the sellers' employees who qualified as slaughterers for purposes of Jewish law have the right to inspect chickens before sale. Nor, as far as I know after reading the trial transcript, did the Schechters ever claim in court that they had violated the straight-killing requirement because of their view of the requirements of Jewish law. (Once the Schechters allowed customers to pick out scrawny chickens, the Schechters sold those chickens to "the colored trade," as one witness at the trial put it.)

There's more to the story about the Schechters. They weren't a corner butcher shop, but the largest slaughterhouse in Brooklyn, processing more than 34,000 pounds of chicken in a typical week, and they earned more than $1,000,000 dollars per year (over $15.3 million in 2019 dollars). Nor were they completely honest businesspersons. They clearly did sell chickens infected with respiratory illnesses, which might have included tuberculosis. (Observing that a live chicken had a respiratory ailment was relatively easy, though determining what the illness was, was difficult. And once the chicken had been slaughtered the ultimate purchaser had no way of knowing that chicken had such an ailment.)

As an aside, the government didn't "single out" the Schechters as a test case; government lawyers had brought cases against what they thought were much better candidates for test cases, but those cases weren't in a good litigation posture when the Schechters lost in the lower courts and as a result could petition the Supreme Court for review. For example, the government dismissed its appeal from a lower court decision dismissing the indictment of the owner of several large sawmills (who had refused to comply with the applicable code's wage-and-hour requirements) because the "record" -- actually, only the indictment -- hadn't been framed with an eye to the non-delegation doctrine, which assumed its importance after the appeal had been filed.

In short, the journalist in Shlaes appears to have led her to make up a good story -- and Justice Gorsuch, a participant in her epistemic community rather than in the epistemic community of historians, found the story credible enough to hint at in his opinion.

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