Monday, March 27, 2023

The Professional Utopians

Andrew Koppelman

During the past 150 years, the human race grew fabulously rich. This was an accident. The notion that ordinary people could be made prosperous—let alone that this could become a conscious project—would have, for most of history, seemed daffy. Yet it happened, and today a guild of specialists argues over how to keep the process going. They are called “economists,” but that term is overbroad. The subset I’m describing are the ones advising, and in some cases deploying, government power.
J. Bradford DeLong’s new book, Slouching Towards Utopia, is subtitled An Economic History of the Twentieth Century. But it is not really a history of the economy so much as a history of economic policymaking, what worked and what didn’t—where “work” means not only further enriching the already rich but also making the lives of average people better. Its heroes are the professional utopians, the policymakers who have figured out how to deliver on that project. DeLong’s polemical aim is to show that the process has recently stalled, and to review what we’ve learned so we can get back on track. The book is comprehensive, beautifully written, and fun to read. DeLong has a gift for filling out abstract concepts with memorable stories. One only wishes that his history had a happier ending.

I review the book in the current Los Angeles Review of Books. 

Sunday, March 19, 2023

Process Values and Mass Reductions in Medicaid and SNAP

David Super

     The economy stubbornly marches forward past the challenges of persistent inflation, a rate-raising Federal Reserve, and blundering bankers.  Yet this is a difficult time for tens of millions of low-income people in this country.  Emergency liberalizations enacted in Medicaid and the Supplemental Nutrition Assistance Program (SNAP) are ending, with benefit reductions and terminations for huge numbers of people very much still in need.  This event is important in its own right.  It also raises questions about the process of policy-making in our deeply polarized and unequal nation. 

     State fiscal crises historically lead to cuts in Medicaid eligibility and services:  Medicaid plays such a large role in states’ budgets it presents an extremely inviting target.  With public health costs rising and revenues crashing in the early days of the pandemic, Congress could foresee sweeping state Medicaid cuts coming at a time when low-income beneficiaries could least afford them.  Accordingly, it both increased the federal matching rate for Medicaid expenditures and, to forestall covert Medicaid cuts, made it very difficult for states to terminate people from the program.  These measures were tied to the duration of the public health emergency declared for COVID-19.

     Because many Medicaid beneficiaries’ incomes are quite volatile, a substantial number of people are now receiving Medicaid with incomes above their states’ eligibility limits.  Medicaid advocates and federal and state administrators long have been preparing for the eventual “unwinding” of these emergency measures, with states needing to redetermine tens of millions of people’s eligibility within a short period using staffs that in many instances have shrunk since 2020.  Many Medicaid beneficiaries remain eligible, sometimes under a different eligibility criteria from the one under which they were first approved.  Most of the rest qualify for private insurance with large subsidies under the Affordable Care Act, but that requires a separate application.  In states that implemented the ACA’s Medicaid expansion, very few Medicaid beneficiaries should lose health care coverage completely, but sorting out which beneficiaries qualify for coverage under which program is complicated enough that many are at risk of falling through the cracks. 

     Congress’s response to rapidly rising food costs and cratering employment during the early months of the pandemic was to provide for “supplemental allotments” in SNAP and to allow households with children to receive substitute food assistance where school meal and summer food programs were shuttered.  The Trump Administration bizarrely interpreted the supplemental allotment statute to reject the across-the-board increase Congress had specified and instead raise every household’s benefits to the maximum.  This gave the least-poor recipients a huge increase and but nothing at all to the poorest one-third of households that were already getting the maximum.  The Biden Administration later partially reversed this policy to give more help to the poorest households.  

     Congress and USDA under both administrations also allowed states to forego eligibility reviews, leaving many households to continue to receive SNAP benefits based on having established eligibility many months earlier. 

     With COVID-19 still killing hundreds of people per day and millions of the chronically ill – a group over-represented among low-income people – still at considerable risk working outside the home, the Biden Administration has repeatedly extended the public health emergency, which had the effect of continuing the emergency Medicaid, SNAP, and child nutrition measures.  This has brought increasing criticism from Republicans, and some Republican-controlled states ended some of these measures on their own.

     The end-of-session omnibus legislation enacted just before Republicans took control of the House included provisions setting firm dates for ending enhanced Medicaid funding, the restrictions on Medicaid terminations, and SNAP supplemental allotments.  The last supplemental allotments in SNAP were issued in February, meaning that this month almost every SNAP household in the country received a large benefit cut.  The money saved by ending the supplemental allotments early was spent creating a permanent new program to provide food aid directly to the families of low-income children that lack access to a Summer Food Program site when school is closed.  This is important because only a tiny share of communities offer meals to continue the work of the school lunch and breakfast programs.  Still, a steep drop in SNAP benefits for already hard-pressed households will unquestionably cause real hardship, particularly with the next inflation adjustment more than half a year away.

     The year-end omnibus also prescribed a phase-out of the enhanced Medicaid funding and eligibility protections over the next several months.  Savings from these changes funded increases in the capped funding Puerto Rico and other U.S. territories receive for Medicaid.  With the caps set far below what these jurisdictions would have received if they were states, health care coverage there has been chronically narrower, less secure, and subject to harsher eligibility limits than that in even the most miserly states.

      To date, states’ experience with unwinding modified eligibility procedures in SNAP has been quite varied.  Some states have seen precipitous drops in participation that suggest many eligible households have been purged from the rolls.  Other states have proceeded more carefully and seen much smaller drop-offs.  Advocates’ assessments of states’ plans for Medicaid unwinding are similarly varied, with some states apparently ready and willing to minimize the number of people falling between the cracks and others seemingly relishing the prospect of big Medicaid savings. 

     Because states are not responsible for SNAP benefit costs, excessive losses of coverage likely result either from ideological preferences or decrepit state administrations.  The latter may reflect ideology as well, with states that devalue assisting low-income people allowing their administrative capacity to erode.  It was no coincidence that a decrepit computer in Florida failed to get unemployment compensation to many of those the pandemic rendered jobless.

     The rise and fall of pandemic-related improvements to public benefit programs raises several important issues about our political process. 

     One issue concerns the ethics of allowing expressly temporary programs to end.  Some Democratic leaders and national anti-poverty non-profits felt strongly that their credibility, and their ability to secure responses to future crises, depended on their cooperating in the wind-up of benefits they had sought as temporary measures.  At one time, when Congress had many conservative but principled Republicans such as Bob Dole, Richard Lugar, and Bill Emerson, this clearly would have been true:  those leaders would cooperate on meeting genuine needs but fiercely refuse to deal with anyone they regarded as acting in bad faith.

     Times, however, have changed.  Opponents of enacting these measures in the first place asserted – falsely – that temporary measures enacted in response to the Great Recession never ended.  No doubt anti-poverty advocates’ acceptance of the enhanced benefits’ end this time will not prevent the same dishonest claims from being made next time.  It also is true that Republicans fiercely resist the termination of upper-income tax cuts, such as those in 2001 and 2003, justified as responses to economic crises.  A plausible argument could be made that, in the zero-sum game of fiscal policy, liberals should play by the same rules their opponents do rather than engage in unilateral disarmament. 

     Yet as Fishkin and Pozen have pointed out, the two partisan coalitions are not symmetrical.  Many of the champions of “good government” that once moderated the Republican Party or acted as swing votes are now within the Democratic constituency.  They have not, however, lost their commitment to “good government” values, including fidelity to one’s word.  They also adhere to norms of policy debate that limit joinder, making the general inadequacy of anti-poverty programs in this country an impermissible argument for continuing explicitly temporary programs.  With the electorate as evenly divided as it is, liberals cannot afford to fracture their coalition by alienating their “good government” champions.  The politics likely would not have allowed continuing the expansions much longer; trading their last few months for smaller but important improvements in Summer Food and health care in the territories was likely all the politics would bear.

     A second question about the end of these enhancements is one of representation.  For the reasons just stated, I agree with the decision to include these measures in the year-end omnibus.  So do the people I work with most closely in Washington.  But who are we?  None of us are at risk of losing our health coverage, our homes, or our access to food. 

     If the provisions at issue affected billionaires, big oil, or banks, decisions on legislative strategy would be made not by non-profits friendly to their interests but by the affected entities themselves.  They likely would not care about how taking “unreasonable” positions might undermine their lobbyists’ credibility; if necessary, they could later change lobbyists.  One could argue that our current political system makes some effort to ensure that a variety of positions are considered but does far less to ensure that a variety of voices get heard.  And, certainly, Medicaid and SNAP recipients lack the funds or the coordinating infrastructure to punish legislators who disappoint them the way trade associations do. 

     This problem cannot be addressed meaningfully with one-off consultations.  The affluent’s effectiveness in policy formulation comes in large part from their having access to nuanced longitudinal insight about what the politics will and will not bear.  When welfare rights and similar groups that have not previously been a part of policy debates are brought in just as key decisions are about to be made, they face an immediate, impossible guess:  whether to trust liberal advocacy groups’ political judgment or to accuse those groups of selling out low-income people’s interests.  Myriad bad outcomes have resulted from each of those choices. 

     I am convinced that we got it right this time, that the omnibus legislation was by far the best deal on the table and that advocacy groups’ refraining from trying to squeeze every last month out of the Medicaid and SNAP improvements will give low-income people a meaningfully better chance of getting help in the next systemic emergency.  But something is very wrong with a system where this decision was so significantly the choice of people like me.


Saturday, March 18, 2023

The Indictment of Donald Trump

Gerard N. Magliocca

Everyone is assuming that Donald Trump will be indicted in New York next week. I am on record saying that prosecuting Trump is a terrible mistake. Nevertheless, there are two implications of that decision that I want to highlight.

First, a New York indictment makes a Georgia indictment more likely, even though the two cases are very different. Being the first prosecutor to indict an ex-President is daunting. Being the second one to do so . . . not so much. 

Second, a New York indictment makes the legal effort to disqualify Trump from the presidential ballot more credible. Strictly speaking, of course, the New York indictment is irrelevant to the issue of whether Trump violated Section Three of the Fourteenth Amendment on January 6th, 2021. But election officials and at least some judges will probably think about that question differently if Trump is under indictment. And especially so if he ends up under two indictments.  

Balkinization Symposium on Joanna Schwartz, Shielded: How the Police Became Untouchable -- Collected Posts


Here are the collected posts for our Balkinization symposium on Joanna Schwartz, Shielded: How the Police Became Untouchable (Viking, 2023).

1. Jack Balkin, Introduction to the Symposium

2. Fred O. Smith, Jr., Shielded: Right Place at the Right Time

3. Aziz Z. Huq, A Comment on Shielded: How the Police Become Untouchable

4. Richard H. Fallon, Jr., On Joanna Schwartz’s Shielded: How the Police Became Untouchable

5. Peter H. Schuck, The Absence of Police Unions and Over-Deterrence in Joanna Schwartz’s Shielded

6. Katherine Mims Crocker, Policing, Stories, Problems, and Solutions.

7. Brandon Hasbrouck, The Untouchables and the Stakes of Abolition

8. Nancy Leong, Re-Arming the Private Attorney General.

9. Joanna Schwartz, Not everything that is faced can be changed, but nothing can be changed until it is faced

Tuesday, March 14, 2023

The Use and Abuse of Tradition: A comment on DeGirolami’s Traditionalism Rising

Andrew Koppelman

Marc DeGirolami’s essay, Traditionalism Rising, argues that the Supreme Court is now deploying what he calls “traditionalist methodology” to decide cases, and that when it cites tradition it is following a “larger, longstanding interpretive method” for deciding cases.

The paper is a valuable contribution that documents an important trend. The Court is in fact invoking tradition with remarkable frequency. But it is a mistake to call what the Court is doing a single “methodology.” Tradition is relevant in different ways in different contexts. It is confusing to conflate them.

In many of the cases that DeGirolami cites, “tradition” is so malleable that it has no independent capacity to influence the outcome of cases. There is a method, but it consists in the deployment of traditionalist rhetoric to clear away obstacles to the destination that the Court desires to reach. Among those obstacles are state interests of the highest order – for instance, the safety and security of citizens, which are jeopardized by the destruction of longstanding limits on firearms.

The method is also a tool for nullifying annoying constitutional provisions. Some of those provisions, notably the Establishment Clause and the Reconstruction amendments, directly attack tradition. They are specifically designed to reject longstanding evils – pertinently for the Court’s recent work, the practice of compelling women to bear children.

I elaborate in a new paper posted at SSRN, here.

Saturday, March 11, 2023

Hamline, Stanford, etc.

Jason Mazzone

Like most observers, I found outrageous Hamline University’s decision earlier this year to terminate Erika López Prater’s contract after students in her art history class complained she showed in class a 14th-century painting depicting the prophet Mohammad. At the same time, I had only limited sympathy for López Prater because I thought she was part of the underlying problem. In warning her students in the course syllabus they might encounter works depicting religious figures (and to reach out to her if they had concerns about that) and, on the date in question, in giving her students an opportunity to step away while the Mohammed image was screened, López Prater evidently subscribed to—and, through her own actions, reinforced—the notion that, in delivering education, universities should take steps to ensure students are not offended. That notion is inconsistent with responsible pedagogy and the truth-seeking function of universities (in part because (as López Prater herself discovered) it eschews any sense of proportion and it has no end point). Hamline is a small and unremarkable undergraduate college. Stanford Law School is a quite different institution. But if the video recording of a Stanford associate dean’s loopy conduct at a recent student-sponsored event is representative, Stanford has a Hamline problem of its own. 

Read more »

Friday, March 10, 2023

Not everything that is faced can be changed, but nothing can be changed until it is faced

Guest Blogger

 For the Balkinization symposium on Joanna Schwartz, Shielded: How the Police Became Untouchable (Viking, 2023).

Joanna Schwartz

I am honored and thrilled that such a tremendous group of scholars commented on my book, Shielded: How the Police Became Untouchable, for the Balkinization Blog—I am indebted to Jack Balkin for hosting the wonderful symposium. Unsurprisingly, this illustrious bunch has offered a lot to chew on, in addition to much generous praise. Having basked in the latter over the past week, I want to take this opportunity to engage with a handful of their many thoughtful comments and observations.
First, some stage-setting: I argue in Shielded that a civil rights lawsuit is often the best—or only—available means of seeking some manner of justice when a person’s rights have been violated by the police. Yet, decisions by the Supreme Court have erected barriers at every stage of the litigation process that make it difficult to find an experienced civil rights lawyer, plead a plausible complaint, prove a constitutional violation, defeat qualified immunity, hold local governments liable for the acts of their officers, and obtain injunctive relief. Even when plaintiffs can overcome all of these barriers, I argue, state and local governments’ policies and practices make it difficult for court victories to impact the finances or decisionmaking of those involved.
Read more »

Wednesday, March 08, 2023

Thirteenth Amendment Abortion Rights and the Job of a Judge

Andrew Koppelman

A federal judge has been criticized for requesting briefing on whether the right to abortion is protected by the Thirteenth Amendment.  The judge is, however, simply doing her job, and simultaneously placing on the political agenda one of the strongest arguments for abortion rights.

I explain in a new column at Washington Monthly, here.

Re-Arming the Private Attorney General

Guest Blogger

For the Balkinization symposium on Joanna Schwartz, Shielded: How the Police Became Untouchable (Viking, 2023).

Nancy Leong 

Joanna Schwartz's new book Shielded: How the Police Became Untouchable is a triumphant capstone to an edifice built of many years of painstaking work. Schwartz's body of research is remarkable: few scholars have had so much influence on the field of civil rights litigation under 42 U.S.C. § 1983. Her empirical research examining basic assumptions of constitutional litigation—does the qualified immunity defense actually shield government officers from the burdens of litigation? do government officers learn from the articulation of law?—has tested and in some cases conclusively demonstrated that foundational assumptions of constitutional litigation are wrong. Shielded draws together many of the strands of this remarkable body of work and is a gift to scholars, litigators, and the interested public alike.

In my contribution to this symposium, I would like to linger on Chapter 2 (pp. 17-32), which discusses civil rights lawyers. I will focus on issues related to availability of counsel, or, more accurately, lack thereof—what in other work Schwartz has properly called “the biggest threat to civil rights enforcement.”

Read more »

Tuesday, March 07, 2023

The Untouchables and the Stakes of Abolition

Guest Blogger

For the Balkinization symposium on Joanna Schwartz, Shielded: How the Police Became Untouchable (Viking, 2023).

Brandon Hasbrouck 

            Recently, a few criminal convictions of current and former police officers for the extrajudicial killings of Black men have briefly dominated the national news cycle.  Derek Chauvin's 22.5-year sentence for murdering George Floyd is currently on appeal after capturing headlines, though the concurrent federal sentence he received would render any change in the outcome of that appeal practically moot.  The other three officers who participated in Floyd's murder are also serving shorter concurrent state and federal sentences.  Ahmaud Arbery's killers—including a retired cop—received life sentences.  These convictions are laudable because they demonstrate prosecutors and jurors willing to hold killers criminally accountable, regardless of their role in law enforcement.  Yet they are not cause for unalloyed celebration; carceral solutions to the violence that mass incarceration engenders will do little to redress or prevent that violence.  And they are so notable in part because they are glaring exceptions to the trend that police in America are nearly unaccountable for the abuses they heap upon ordinary people.  This trend follows naturally from the cycles of white reaction to advances in Black civil rights in a characteristically American pattern.

            In Shielded: How the Police Became Untouchable, Joanna Schwartz provides an exactingly researched exploration of the myriad legal and political forces protecting police from accountability for violating the rights of ordinary people.  This book is the culmination of over a decade of Schwartz's legal scholarship, distilled into easily accessible prose for a mass audience outside of the academy.  Schwartz examines the legal system's ostensible primary vehicle for holding police accountable—civil rights lawsuits—and the barriers to those lawsuits.

Read more »

Madison's Non Sequitur

Andrew Koppelman

Vincent Phillip Muñoz’s book, Religious Liberty and the American Founding, is a marvelous piece of historical reconstruction, bringing to vivid life the intellectual world of the framers. He gives the reader a sharply etched picture of their natural rights philosophy.

But their world is not ours, and they relied on premises that we cannot share and which cannot now be the basis of public law. Today, when courts interpret the First Amendment’s religion clauses, they must articulate a rationale that will not be unintelligible or repulsive to many citizens. The interpretation also ought not to inflame the very divisions that the clause was intended to prevent.

The fundamental problem is that the framers believed both that we are endowed with natural rights and that the government is incompetent and untrustworthy to adjudicate religious questions. Their natural rights philosophy, however, ultimately rested on religious foundations if it rested on anything at all.

Muñoz offers us a valuable window into the world of Madison. But that world is not our world. If religious liberty is to remain a shared ideal in contemporary America, it will have to be under a different description than the one that Muñoz skillfully recreates. It must not presuppose theistic premises that many Americans reject.

I elaborate in a new paper posted on SSRN.

Monday, March 06, 2023

Religion and the lawbreaking Supreme Court

Andrew Koppelman

Lawyers sometimes irritate other people with their persnickitiness about technicalities.  But scrupulousness about legal detail is what gives courts their authority.  It is big news if the Supreme Court ignores statutory limits on its own power. 

Since Justice Amy Coney Barrett replaced Ruth Bader Ginsburg, the Court has repeatedly issued orders without legal authorization.  This was particularly true in the cases involving religion and Covid.

I elaborate in a column at The Hill, here.

Policing, Stories, Problems, and Solutions

Guest Blogger

For the Balkinization symposium on Joanna Schwartz, Shielded: How the Police Became Untouchable (Viking, 2023).

Katherine Mims Crocker

George Floyd, Breonna Taylor, Eric Garner, and now, Tyre Nichols.  We all know their names because of the tragic circumstances surrounding their deaths at the hands—or by the gun or under the knee—of law-enforcement officers.  There are others, too, whose names and killings have become part of our collective consciousness amid the national contestation over police reform.  I continue to believe, to quote the New York Times editorial board, that “[t]he vast majority of police officers are decent, honest men and women who do some of society’s most dangerous work.”  But as Joanna Schwartz’s incisive new monograph, Shielded, expounds in excruciating detail, the list of people who’ve suffered outrageous behavior at the hands of law-enforcement officers—and who then ran into roadblock after roadblock pursuing remedies—is considerably longer and, critically, broader than many readers may suspect.  If the list is limited to people who died, one could add Tony Timpa, Andrew Scott, and Sean Monterrosa.  If it’s not, one could add Onree Norris, James Campbell, and Rob Liese too.  All their names are worth knowing.  All their stories, worth telling.  And unfortunately, there are many more stories like theirs.

As Schwartz promises in the Introduction, readers “will learn the stories of people whose children were killed even though they posed no threat, people who themselves were shot and nearly lost their lives without justification, who were searched and humiliated without cause, who were raped by officers sworn to protect and serve—each of whom has been told by our courts and elected officials that they must shoulder the costs of the violence they suffered themselves, with no recourse from the officers or from the governments that signed their paychecks and gave them their badges and guns.”  To be sure, Schwartz explains, readers “will also learn the stories of people who managed to eke a measure of justice out of the system.”  While “some succeed,” she tells us, “the shields erected to protect police by courts and officials at every level of government make those victories fewer and further between, and harder to achieve, than they should be.”

Read more »

Sunday, March 05, 2023

The Absence of Police Unions and Over-Deterrence in Joanna Schwartz’s Shielded

Guest Blogger

For the Balkinization symposium on Joanna Schwartz, Shielded: How the Police Became Untouchable (Viking, 2023).

Peter H. Schuck

I am delighted to have been asked to participate in an online symposium celebrating Joanna Schwartz’s new book, Shielded: How the Police Became Untouchable.  The subject is one that should command the attention of every individual in our society, whether citizen or non-citizen, admiring of police or suspicious of them, more or less likely to come in contact with police.

Schwartz’s subtitle depicts the police as “untouchable.” This is a bit hyperbolic, as even some of her case studies show.  Nevertheless, her analysis leaves no doubt that legal remedies against miscreant cops are woefully inadequate in many important respects and cases.  Most concerning, many and perhaps most deserving victims of police misconduct find that their legal remedies – particularly the 150-year old civil rights provision, 42 U.S.C. Section 1983 – are unavailing.  Many reasons for this remedial failure exist, and Schwartz analyzes nearly all of them methodically, chapter-by-chapter.  (I say “nearly all” for a particular reason: despite Schwartz’s admirably detailed analysis of each of the impediments to Section 1983 recoveries, she has almost nothing critical to say about the substantial, insidious role of police unions in blocking citizen remedies.  More on this below).

Read more »

Friday, March 03, 2023

On Joanna Schwartz’s Shielded: How the Police Became Untouchable

Guest Blogger

For the Balkinization symposium on Joanna Schwartz, Shielded: How the Police Became Untouchable (Viking, 2023).

Richard H. Fallon, Jr.

            Over the past ten years, no one has produced more important work concerning constitutional tort litigation than Joanna Schwartz.  Schwartz’s greatest contributions have come from her empirical research into constitutional tort suits involving the police.  A main focus of her work has involved qualified immunity.  Qualified immunity doctrine, which is entirely judge-made, has rested on the premise that tort judgments against government officials would be paid by the officials themselves.  If so, we might need to worry that public servants might be chilled from conscientious discharge of their duties by fears of incurring personal liability for transgressing uncertain constitutional lines.  Through imaginative and painstaking investigation, Schwartz has shown that police forces, at least, overwhelmingly indemnify their officers and that officers pay substantially less than 1% of the tort judgments and settlements arising from alleged police misconduct.  This is a startling discovery.

            Digging behind and beyond the façade of personal official liability in police misconduct cases, Schwartz has also looked at how constitutional tort litigation affects police departments.  In doing so, she has echoed the findings of others that doctrine crafted by the Supreme Court in interpreting 42 U.S.C. section 1983 makes it nearly impossible to hold police departments directly liable for their officers’ torts.  A number of academic commentators have criticized the Court’s relevant rulings, in part based on speculation that municipal liability would create powerful incentives for police departments to hire, train, and supervise their officers in ways that would diminish constitutional violations.  But Schwartz’s extraordinary research has again demanded a rethinking of plausible-seeming premises.  Even now, departments can occasionally – even if infrequently – be sued successfully, and, as noted above, they mostly indemnify their officers when the officers are held “individually” liable.  According to Schwartz’s research, however, many departments do little to keep track of which officers are sued repeatedly and which are not.  Moreover, it is at best doubtful, as an empirical matter, that even successful constitutional tort actions cause police departments to learn the lessons that commentators have broadly assumed that financial liability would teach.  Among other reasons, Schwartz has established, tort judgments based on police misconduct are mostly absorbed by municipalities or insurance companies in ways that shield police departments from any resulting financial pinch.  It is one small measure of the significance of Schwartz’s work on qualified immunity and police liability for constitutional torts that the 2022 Supplement to Hart & Wechsler’s The Federal Courts and the Federal System (7th ed. 2015) not only cites, but also discusses, no fewer than seven of her articles in its sections dealing with qualified immunity and constitutional tort litigation under 42 U.S.C. section 1983.

            Building on the work that she had done previously, Schwartz has now published Shielded: How the Police Became Untouchable (2023).  That book, which is wonderfully written to reach a broad public as well as a scholarly audience, constitutes an important, timely contribution to debates about policing practices, police misconduct, systemic bias, justice for victims of police misconduct, and the proper role of the courts in effecting needed reforms.  As recent events have reminded us once more, these are matters of grave importance to which thoughtful attention is urgently needed.  Schwartz’s book answers to the need.

            In its overall thrust, Shielded constitutes a blistering condemnation of the criminal justice system as viewed from the perspective afforded by a systematic, nearly comprehensive study of constitutional tort litigation against the police.  It calls the Supreme Court on the carpet for myriad mistakes involving its shaping of a multitude of doctrines beyond qualified immunity.  Among the doctrines with which Schwartz finds fault are those that define invasive police practices as substantively reasonable under the Fourth Amendment; establish often-insurmountable pre-discovery pleading requirements for constitutional tort plaintiffs; and construe a statute authorizing attorneys’ fees for successful section 1983 plaintiffs in ways that create disincentives for lawyers to bring constitutional tort cases.   Shielded is also highly critical of police and police departments, and the cultures that frequently prevail within them, and depicts them as desperately needful of reform.  In addition, Schwartz directs criticisms at many lower court judges, whom she views as hostile to civil rights plaintiffs, and even at juries.  Juries, she writes, are often selected from pools in which minority groups are underrepresented and tend to hold disproportionally favorable views of the police.

            Nearly all of Schwartz’s arguments in Shielded impress me as forceful, though I would be the first to acknowledge that I know too little to express a confident, much less an expert, judgment on some of the issues that the book addresses.  Reflecting on the book from the perspective of a Constitutional Law and Federal Courts teacher who has long thought and sometimes written about constitutional torts doctrine, I draw three lessons for which I count myself much indebted to Schwartz’s pathbreaking scholarship, of which Shielded marks a splendid culmination.

Read more »

Thursday, March 02, 2023

Forever War Chronicles, pt. 1[i]: How, exactly, did Truman decide not to seek a war declaration for the Korean War?

Mary L. Dudziak

In my next book, which is on the culture and politics of ongoing U.S. war and the dissipation of democratic restraint, the Korean War is a major turning point. When I began working on the Korean War chapter, I wondered how, exactly, President Harry Truman decided to bypass Congress, making it the first big foreign war without a war declaration. What was he thinking? Was it just a matter of the urgency of the moment, which tends to be implied in many works? To answer that question, I dove into the archives, looking for a paper trail. In this blog post, I will tell you what I found.

There is, of course, a division in the literature about whether or not Truman erred, and whether or not he contributed to forever war. Mariah’s Zeisberg’s elegant and important War Powers argues that the President and Congress co-produced constitutional authority for war. Notwithstanding the importance of her contributions, I tend to agree with Stephen Griffin that war formal war authorizations matter, and that clear Congressional commitment to war before troops are under fire matters. This may now seem like an anachronistic argument, but the historical question remains: how did a fundamental constitutional function come to appear to be an anacronysm? In the context of the Korean War, just how did that come about? What were Truman’s reasons?

Discussions of Truman Administration decision making at the beginning of the war often turn to two important evening meetings at Blair House, the president’s temporary residence, shortly after North Korea invaded the South.[ii] During the second meeting Truman agreed to his Secretary of State’s recommendation for an “all-out order” for use of the Navy and Air Force, and to “waive restrictions on their operations in Korea and to offer the fullest possible support to the South Korean forces.” He followed up by issuing the order to General Douglas MacArthur, and U.S. bombing in Korea commenced.

At the Blair House meeting, participants discussed the U.N. Security Council, which had not yet authorized the use of force, but the idea of seeking a declaration of war was not discussed.

During this time period, the administration briefed two Senators, who both exclaimed: “of course you are not thinking of putting U.S. troops in Korea.” Congress debated the developing conflict, with some questioning whether it was civil war, and whether concrete U.S. interests were at stake. The contemporary historiography emphasizes the peninsular nature of the conflict stemming from the division of the Korean peninsula after World War II. Truman and his close aids wrongly assumed that the invasion was part of Stalin’s master plan, however, dismissing Korean agency and initiative.

The president did not address Congress or ask for congressional action. The ideal timing for seeking war authorization would have been not long after June 25, 1950, when news of the North Korean invasion reached Washington and before U.S. troops were ordered to Korea five days later. Why didn’t Truman ask for Congressional authorization at that time? It was not the lack of opportunity to reflect. Truman was in Independence, MO, on June 25 when he first learned of the invasion. Flying back to Washington on June 26, he thought about the conflict and its impact on his own historical legacy. If he thought about the role of Congress, he did not record this in his recollections of the day.

President Truman’s reasoning is captured in the papers of his close aid George Elsey. Elsey recalled: “[t]he real time for a resolution would have been on June 27 . . . but apparently nobody thought of it at that time” (emphasis added).[iii] The principal reason that timing would be best was actually political. It was in the immediate moment of excitement and danger when members of Congress rallied behind the idea of defending South Korea.

There was robust discussion about war authorization in early July 1950, as the first U.S. ground troops, ill-equipped and unprepared, were on their way to a disastrous initial encounter with North Korean troops. Truman remained reluctant, suggesting that it was up to Congress to request a war declaration – even though Woodrow Wilson and Franklin Delano Roosevelt had dramatically taken the initiative in World Wars I and II. By that time, Elsey noted, “it was undoubtedly too late to get a resolution through by anything like a unanimous vote” – something that did not happen for the two World Wars either.

Truman reduced Congress to a political adversary, not a co-equal branch and source of more enduring legal and political legitimacy. Elsey put it this way: “The President and his staff, and his other advisers, were too busy thinking of military action and United Nations action to try to cover up their tracks with Congressional resolutions. The President’s motivation was to stop the aggression, not to prepare for future political skirmishes.” He viewed Congress as a political problem, not as a partner in taking the country to war.

The concern about unanimity and political skirmishing reinforces the fact that Truman’s neglect of Congress was based on politics, not constitutional or military factors. Perhaps most notable was the lack of attention to Congress’s role. “[N]obody thought of it at that time” when the decision to use force was on the table.

In sum, Truman’s decision to bypass Congress was consequential (which I expand on in a forthcoming article), but it was not deeply considered. Like another crucial and devastating military action on Truman’s watch – the nuclear bombing of Nagasaki shortly after Hiroshima, as Martin Sherman’s work shows -- events for the President took on their own momentum, and the record does not reflect deep reflection on the consequences. Nevertheless, the Korean War lives on as precedent as part of the historical practice of the separation of powers. One of the problems of relying on history for constitutional authority, unfortunately, is that a president’s failure to respect Congress became baked in, justifying more of the same.

For more and for citations to sources, see my forthcoming Michigan Law Review article The Gloss of War.

[i] I will link together occasional book-in-progress-related posts as part of Forever War Chronicles.

[ii] I am using the contemporary terms North Korea and South Korea to avoid confusion. The proper country names at the time were Republic of Korea for the South and Democratic People’s Republic of Korea for the North.

[iii] Letter from George M. Elsey, Administrative Assistant to the President, to Sen. Alexander H. Smith (July 16, 1950), Subject: Congressional Resolution, Folder: Korea – July 1950, Box 71, Subject File, Harry S. Truman Administration, George M. Elsey Papers, Harry S. Truman Library (emphasis added).

A Comment on Shielded: How the Police Become Untouchable

Guest Blogger

For the Balkinization symposium on Joanna Schwartz, Shielded: How the Police Became Untouchable (Viking, 2023).

Aziz Z. Huq

Over the past decades, Prof. Joanna Schwartz has written an illuminating series of law-review articles on the litigation and financial dimensions of civil rights litigation. Drawing on qualitative, quantitative, and doctrinal analysis, Schwartz has cast new light on case selection, barriers to litigation, how payments are made, and what consequence payments have to subsequent behavior. Her exemplary body of work demonstrates the importance of a multidisciplinary approach, sustaining a single, cohesive research agenda, and resisting the assumption that insight emerges only from recondite econometric sophistication applied to staggeringly large data sets. Any serious scholar grappling today with the mechanics of civil liability for governmental torts needs to attend closely to her work.
Her new book, Shielded: How the Police Became Untouchable, does not endeavor to break new ground in relation to these articles. Instead, it distils much of the material to be found into her articles into a form readily digestible by lay (non-academic) readers. Modestly, Schwartz aims less to showcase her own research as to offer those lay readers an anatomy of the doctrinal and practical barriers hindering constitutional tort actions for damages or for injunctions against police. These range from the rigors of plausibility pleading to the difficulties of translating court judgments into durable behavioral change on the part of institutions. Shielded is hence a work of translation—taking up an element of the policing puzzle that might be missed by law audience—and no less valuable for it.
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