Can (and should) we take policymaking accountability to the four corners of the earth?

Guest Blogger

For the Balkinization symposium on Susan Rose-Ackerman, Democracy and Executive Power: Policymaking Accountability in the US, the UK, Germany, and France (Yale University Press, 2021).

Mariana Mota Prado 

In Democracy and Executive Power, Susan Rose-Ackerman provides a detailed analysis of delegation of rulemaking powers to executive officials. While it is not possible for legislatures to oversee all the complexities of the mammoth state apparatus that governs our societies today, she argues that the lack of accountability of these policymaking processes within the executive branch is an issue that needs to be addressed. Rose-Ackerman analyzes four countries (France, Germany, US, and UK) to ask what institutional arrangements secure (or could secure) an accountable process of administrative rulemaking. The careful selection not only reflect some of the countries that Rose-Ackerman has been studying for decades, but it also serves a very important methodological purpose: it allows for a comparison of two types of political systems, parliamentary (UK and Germany) and presidential (US and France); and of two types of legal systems, common law (UK and US) and civil law (Germany and France).

Based on this comparative analysis of executive rulemaking, she makes a positive (descriptive) and a normative claim. The positive claim is a political economy story: parliamentary systems lack the incentives that exist in presidential systems for legislatures to keep the executive in check. The normative claim is that the political dimensions of executive rulemaking need to be accountable. Yet, executive rulemaking is not purely political: these processes also involve and often require expertise. For this reason, Rose-Ackerman pushes for “more constructive forms of political accountability that also recognize the importance of technocratic analysis” (p. 146). Her proposal points to transparency, public consultation and reason giving as the three pillars that can address the democratic deficit in executive rulemaking in many countries today.

Despite being centered around these four countries, Rose-Ackerman’s claim is broader in scope, as she announces in the introduction: “the difficulties that have arisen in my case-study countries are repeated throughout the world and can provide insights that may be applicable elsewhere” (p. 9). In line with this ambition, in the concluding chapter (Chapter 8) she discusses how the book’s “perspective is relevant elsewhere, especially to countries making a transition to democracy and to middle-income countries whose governments are seeking a stronger system of public law.” (p. 244). This blogpost engages with this broader ambition, both to commend the book’s careful and constructive analysis in this regard, but also to pinpoint a few issues that seem to merit further attention.

Balkinization Symposium on Linda Colley, The Gun, the Ship, and the Pen -- Collected Posts

JB

Here are the collected posts for our Balkinization symposium on Linda Colley's new book, The Gun, the Ship, and the Pen: Warfare, Constitutions, and the Making of the Modern World (Liveright, 2021).

1. Jack Balkin, Introduction to the Symposium.

2. Erin F. Delaney, Of Constitutions and Constitutionalism.

3. Gerard Magliocca, The Gun is as Mighty as the Pen.

4. Sandy Levinson: An Essential Book: Linda Colley,on the origins of written constitutionalism.

5. Madhav Khlosla, Locating Constitutions in the Modern World. 

6. Harshan Kumarasingham, Constitutional History and the Making of the Modern World.

7. Mark Graber, Of Guns, Ships. Pens, and Liberals.

8. Linda Colley, Linda Colley Responds.

What Yale Law School Teaches — Inadvertently — About the Appropriate Role of Diversity Officials

Andrew Koppelman

As the bitter controversy continues over Yale Law School’s disastrous mishandling of a discrimination complaint, some have wondered whether there ought to be diversity officials at all. The mutual incomprehension among students that led to this situation actually shows that they can do valuable work — if they get it right.

In some ways, opposition to racism is baked into the modern university. Law schools like Yale, where I was a student, or Northwestern, where I teach, admit the best students they can find, regardless of race, sex, social class, or other ascribed statuses. But that egalitarian ethic has not always existed. The old hierarchies leave their mark, and members of previously excluded groups often feel that they don’t belong. If that affects their academic performance, the university’s educational mission is impaired.

Faculty should care about this experience of isolation because teaching is an exercise in rhetoric, and rhetoric has a moral dimension. It forces you to learn about your audience, to get outside your own head and into the heads of other people. Universities need to know what alienates students.  Otherwise we can’t do our jobs as effectively as we could. The alienation of minority students is a problem that needs to be addressed.

The Tensions Surrounding Executive Rulemaking in Four Western Democracies

Guest Blogger

For the Balkinization symposium on Susan Rose-Ackerman, Democracy and Executive Power: Policymaking Accountability in the US, the UK, Germany, and France (Yale University Press, 2021). 

Peter Strauss

Susan Rose-Ackerman’s “Democracy and Executive Power,” is a magisterial work about executive creation and implementation in four western democracies, two presidential and two parliamentary, of public policy initiatives undertaken within statutory frameworks framing these executive tasks. Thus, its focus is on the process Americans call rulemaking (known in other systems as secondary or subsidiary legislation), the executive development of regulations to implement statutory directive.  This process is a universal necessity of governance in this complex and interdependent world. Yet it is equally necessary that it be undertaken by unelected bureaucrats, with the result, all too evident in contemporary American debates, that serious questions can be raised about its legitimacy in the face of the public’s claims for its participation and the actors’ accountability.  That is, as her title reflects, the central issue is answering the claims of democracy in relation to these actions. Legislators act after generally public debate, on public votes for which the electorate can hold them responsible.

Prof. Rose-Ackerman develops model after thoughtful and persuasive model, reflecting her background in economics and her deep understanding of executive policymaking. She is quite taken by the American process of notice-and-comment rulemaking, with its significant provisions for the public’s knowledge in advance of proposals to be acted upon, for public input then into the agency’s deliberative processes, for explanation much fuller than legislatures provide of agency reasoning in adopting a regulation, and for judicial controls considerably more demanding than apply to statutes. And she is chary, as am I, of the steady development of presidential controls tending to render the process more opaque and more subject to political capture in ways the electorate cannot well control.  The processes she finds in England, France and Germany generally lack our bureaucratic processes, but have elements – in France, for example, the training, discipline and traditions of its civil service – that tend to promote regularity compensating for issues of transparency, participation, and accountability.  Still, her general thrust is for the kinds of agency-level processes we enjoy.

Balkinization Symposium on Susan Rose-Ackerman, Democracy and Executive Power: Policymaking Accountability in the US, the UK, Germany, and France

JB

This week at Balkinization we are hosting a symposium on Susan Rose-Ackerman's new book, Democracy and Executive Power: Policymaking Accountability in the US, the UK, Germany, and France (Yale University Press, 2021).

We have assembled a terrific group of commentators, including John Ferejohn (NYU/Stanford), Liz Fisher (Oxford), Jeff King (UCL), Thomas Perroud (Panthéon-Assas University (Paris II), Mariana Prado (University of Toronto), Matthias Ruffert (Humboldt Universät zu Berlin), and Peter Strauss (Columbia).

At the conclusion, Susan will respond to the commentators.

Linda Colley responds

Guest Blogger

Mark Finchem Has a Section Three Problem

Gerard N. Magliocca

(Cross-posted at PrawfsBlawg)

Mark Finchem is a state representative in Arizona. He is now running for the GOP nomination to be Arizona's Secretary of State; the official in charge of running elections. Former President Trump has endorsed Finchem's candidacy. Representative Finchem was present at the "Stop the Steal" rally on January 6th and there are allegations that was connected with some of the groups that engaged in violence on that day. He is a member of the "Oath Keepers" and recently described the 2020 election in Arizona as "rigged."

Consequently, Representative Finchem may be barred from serving as Secretary of State by Section Three of the Fourteenth Amendment. He was a state legislator on January 6th who had sworn an oath to uphold the Constitution. If he "engaged in insurrection," then Section Three bars him from serving in any state executive office. Section Three is the only federal constitutional requirement for state office.

My understanding is that any voter in Arizona may challenge the eligibility of a primary candidate for state office on the ground that he cannot lawfully hold the office for which he is running. 

L'Affaire Emory, again

Andrew Koppelman

John Wilson and I debate the recent controversy at the Emory Law Journal, here.

The Voting Rights Conundrum, Part I

Stephen Griffin

Although there may be a Senate debate, as a practical matter the effort to pass voting rights measures may be dead for now.  However, but the issues raised by the current House bill (originally two bills) will likely be with us for some time.  Regardless of what happens in the Senate, I see some problems with the way the public debate has been conducted, even among voting rights experts, and that’s my concern here.  I’ll start with Yuhal Levin’s op-ed in the New York Times, arguing that the concerns Democrats and progressives have about voting rights procedures are misplaced.  Levin points out that the process of voting, such as registration, has been generally made easier in recent years, certainly easier if our frame of reference extends back to the 1980s, before the adoption of “motor voter” legislation and early voting.  This is the perspective taken by Justice Alito’s majority opinion in Brnovich.  For his part, Levin sees the parties as focused unduly on measures to improve (or obstruct) voter turnout, which is highly unlikely to actually affect which party wins or loses.  I agree with him on this point.  As he portrays it, the parties are locked in an unproductive policy stalemate.

Unfortunately, this viewpoint leaves out one region and one group of surpassing importance to the Democratic party and, one hopes, to the nation as a whole – African Americans in the South.  Perhaps Levin is overlooking the question of race because he references the “Freedom to Vote Act”, rather than the John Lewis Voting Rights Advancement Act, the response to Shelby County and Brnovich which renews for a new era the Voting Rights Act of 1965 (VRA).  But, in fact, a number of elements in the two laws are linked in that many of the states that have enacted restrictive laws are in the South, such as Georgia, Texas, and Florida.  If Levin is suggesting that Democrats ignore the perspective of African Americans in the South, that is an obvious nonstarter.  Indeed, given the history represented by John Lewis, their perspective ought to be our perspective.

Misperceiving the relevance of race seems something of a theme in recent commentary on the proposed voting rights measures and the advocacy of the Biden administration.  Consider a recent Washington Post’s “Fact-Checker” column by Glenn Kessler.  The essential problem with the Post’s analysis is that it analyzes the administration’s statements as if the voting rights controversy began in the aftermath of the 2020 election.  But the legal reality the John Lewis Act is meant to address goes back to the aftermath of the 2013 Shelby County decision, nine years ago.  It is well documented that in the immediate aftermath of the decision, states like North Carolina and Texas passed laws that would have been subject to DOJ preclearance under the VRA and probably disapproved.  These laws were subject to litigation, like the McCrory case in North Carolina and Veasey v. Abbott in Texas in which multiple appellate courts found that state legislatures acted with a racially discriminatory purpose.  From the perspective of the advocates of the John Lewis Act, to whom President Biden was speaking in his Atlanta address, this history matters.

The Supreme Court, vaccination and government by Fox News

Andrew Koppelman

Suppose Congress passed a law commanding the Occupational Safety and Health Administration (OSHA) to prevent deadly dangers in the workplace, and to act quickly if those dangers arise unexpectedly. And then suppose the Supreme Court declared that the bigger the emergency is, the less power OSHA has. OSHA can move fast to prevent a few bad injuries, but not if hundreds of thousands are dying.

That is, in essence, what the Supreme Court said yesterday, for reasons that threaten to merge Fox News with the US Reports.  I explain in my latest column at The Hill.

L’Affaire Emory

Andrew Koppelman

It is now notorious that the Emory Law Journal commissioned and then tried to censor, as “hurtful and unnecessarily divisive,” an article that denied the existence of systemic racism. When the author refused to bowdlerize his piece, the Journal rejected it. Two other contributors to the same issue withdrew their articles in protest. This has been portrayed as a familiar left/right fight, except for one detail: one of the authors who withdrew is on the left. Some have been asking, who is that guy and what was he thinking?

I’m that guy. I am urgently concerned about systemic racism, which I have written about extensively, but I withdrew to protest the illiberalism that has these student editors in its grip. That illiberalism is bad for the university and bad for racial equality. It reflects an increasingly influential conception of racial equality that is disgustingly indifferent to the welfare of the people it purports to help.  This isn’t a left/right thing.

I explain my decision in the Chronicle of Higher Education, here.

It is paywalled, but Eugene Volokh posts a longer excerpt than I'm supposed to, here.

The First Section Three Lawsuit

Gerard N. Magliocca

The suit was filed today against Congressman Madison Cawthorn of North Carolina. I have agreed to serve pro bono as an expert witness in this case if necessary.

UPDATE: I have an essay in The Washington Post commenting onsite of the broader issues raised by the cases.

187 Minutes

Ian Ayres

As our nation confronts the first anniversary of the attack on the Capitol, we might consider a 187-minutes of silence – from 1:10 pm to 4:17 pm EST today.  This is the length of time President Trump waited after the end of his speech on the Ellipse before asking the attackers to go home. 

The attack had begun in earnest at 12:53 pm when rioters “overwhelm[ed] police along the outer perimeter west of the Capitol building, pushing aside temporary fencing.”  So our President waited 204 minutes (from 12:53 to 4:17) after the violence began before uploading a video to Twitter which included the words:

I know your pain, I know you're hurt. We had an election that was stolen from us. It was a landslide election and everyone knows it, especially the other side. But you have to go home now. We have to have peace. We have to have law and order. We have to respect our great people in law and order. We don't want anybody hurt. It's a very tough period of time. There's never been a time like this where such a thing happened where they could take it away from all of us — from me, from you, from our country. This was a fraudulent election, but we can't play into the hands of these people. We have to have peace. So go home. We love you. You're very special. You've seen what happens. You see the way others are treated that are so bad and so evil. I know how you feel, but go home, and go home in peace.”

Our President wasn’t completely Twitter silent during this 187-minute period. 

The first rioters breached the Capitol defenses and began entering the building at 2:12 pm.  Trump responded at 2:24 pm, not by asking them to “stand down, and stand by” but by posting:

Mike Pence didn't have the courage to do what should have been done to protect our Country and our Constitution, giving States a chance to certify a corrected set of facts, not the fraudulent or inaccurate ones which they were asked to previously certify. USA demands the truth!

Then at 2:38 pm, more than an hour and half the attack began, he tweeted:

Please support our Capitol Police and Law Enforcement. They are truly on the side of our Country. Stay peaceful!

The insufficiency of this tweet, which again failed to ask the rioters to leave the Capitol was immediately apparent to his son, Donald Trump Jr., who franticly texted White House Chief of Staff Mark Meadows:

            He’s got to condemn this shit ASAP. The Capitol Police tweet is not enough.

At 3:13 pm, more than two hours after the attack began, our President tweeted:

I am asking for everyone at the U.S. Capitol to remain peaceful. No violence! Remember, WE are the Party of Law & Order – respect the Law and our great men and women in Blue. Thank you!

As with his earlier tweets, Trump fails to ask the protesters to leave the Capitol. It is hard for me to fathom that for still another hour from 3:13 to 4:17, Trump maintained Twitter silence. Only then did he tweet the mixed message which simultaneously inflamed by reiterating the lie that the election was “stolen” along with the call “So go home. We love you. You're very special. You've seen what happens. You see the way others are treated that are so bad and so evil. I know how you feel, but go home, and go home in peace.”  To say that this was too little, too late does not begin to convey the dilatory scope of Trump’s failure. 

* * *

As I think back to these harrowing moments a year ago, I am filled with visceral fear that the Capitol would be burned.  Much of me wants to turn away from those memories. 

We should resist the impulse to rush to enshrining particular modes of remembrance. And I tend to favor ways of observing anniversaries of our past that allow us as a nation to move forward.  But at least for this first anniversary, we might consider meeting Trump’s past silence with silence of our own. It is difficult in our constantly-connected world for people to remain silent for even one minute, and I can’t imagine that many Americans could bring themselves to remain silent for 187 minutes. But as we watch video footage of the Capitol attack today, let us consider for at least a few moments what for so long was left unsaid.

Yes, Virginia, it was an insurrection

Gerard N. Magliocca

The Wall Street Journal has an editorial out today arguing that January 6th was a riot, not an insurrection. This is nonsense, but nonsense suggesting that some people now realize that the Constitution speaks to what should happen to public officials who engage in insurrection and are starting to circle the wagons. Better to call what happened a riot, a jamboree, or anything other than an insurrection.

Why does the Journal say that January 6th was not an insurrection? Because it was not an "attempted coup" or a "conspiracy to overthrow the government." The problem is that this is not the definition of an insurrection. Let's start with some state definitions:

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

Mississippi: “The term 'insurrection,' when used in any statute, means an armed assembly of persons having intent to resist or subvert lawful authority.”

Colorado: “Any person who, with the intent by force of arms to obstruct, retard, or resist the execution of any law of this state, engages, cooperates, or participates with any armed force or with an armed force invades any portion of this state commits insurrection.”

Next, many presidents other than Lincoln have invoked the Insurrection Act. In virtually none of those instances was there an attempted coup or a conspiracy to overthrow the government. Instead, the problem was often armed mobs that were obstructing legal process. A famous example was President Eisenhower sending troops into Little Rock in 1957.

Third, Congress defined what occurred last year as an insurrection. The article of impeachment, which was supported by a majority of the Senate, used the term. The Senate unanimously passed (and over 400 House members adopted) a resolution awarding medals to Capitol Police officers who provided protection against the "mob of insurrectionists." It's awfully hard to have insurrectionists without an insurrection. 

Finally, Madison's Federalist #10 is subtitled "The Union as a Safeguard Against Domestic Faction and Insurrection." He wasn't talking about attempted coups or a conspiracy to overthrow the government.

Revisionism done well is vital in seeking the truth. Revisionism done badly is a whitewash. 

January 6th as a Constitutional Crisis

JB

Over a decade ago, in a more innocent time, Sandy Levinson and I developed a definition and typology of constitutional crises. Essentially, constitutional crises occur when the Constitution is no longer able to keep struggles for power within the boundaries of the Constitution. In other words, constitutional crises occur when the Constitution fails at its central task of keeping struggles for power within the legal boundaries of politics that the Constitution creates and maintains.

Covid and OSHA’s emergency powers

Andrew Koppelman

Libertarianism, Covid, and the Supreme Court

Andrew Koppelman

The Supreme Court will hear argument on the Biden vaccine mandates on Friday, Jan. 7.  Officially, the cases are about questions of federal power, administrative law, and the capacity of Congress to delegate authority to agencies.  But what is fundamentally driving the litigation is the libertarian myth – one that may be embraced by the new conservative Supreme Court majority - that freedom can be promoted by hamstringing the capacities of government.

I explain in my latest column at The Hill, here.

Reflections on January 6th and What's Coming Next

Gerard N. Magliocca

On the night of January 6th, I wrote the following post on this blog:

I find very interesting the use of the word "insurrection" to describe what occurred today at the Capitol. For example, Senator Romney issued a statement stating that today was "an insurrection, incited by the President of the United States." Senator McConnell described today as a "failed insurrection."

If so, then Section Three of the Fourteenth Amendment might apply to President Trump. People who "having previously taken an oath . . . as an officer of the United States . . . to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same" are ineligible to serve in a variety of federal and state offices. If President Trump is "an officer of the United States" and he did incite an insurrection against the United States, then he might well be ineligible under Section Three. . . .

In the weeks following January 6th, I wrote a series of posts and other short pieces arguing that Congress should respond by passing a non-binding resolution declaring President Trump ineligible to serve again as President and enacting Section Three enforcement legislation that would lay out an orderly process and clear standards for the federal courts to make ineligibility determinations with respect to Trump or anyone else. Of course, Congress did not take my advice. Maybe the January 6th Committee will take up the issue (and I hope that they do), but even then action from Congress is unlikely.

In the absence of congressional action, we face an upside-down application of Section Three. Lawsuits will almost certainly begin this year challenging the ballot eligibility of members of Congress who were allegedly involved in January 6th. Thus, state election officials and state courts will be forced to take the lead in deciding whether an attack on the national legislature triggers Section Three of the Fourteenth Amendment. If that sounds backwards, that's because it is. The structure and history of Section Three assumes Congress and the federal government will take the leading role in determining ineligibility. A state-centered process will be confusing due to the vagaries of state election law, partisan bias in some states, and the rapid timetable under which these cases must be decided. State primaries have fixed dates. Only a few months will pass between the initial suits and their final determination, which does not bode well for reasoned judgments in the states or in the Supreme Court. It won't be pretty. 

My final thought is that the legal and academic community is whistling past the graveyard by not giving more attention to Section Three as applied to the 2022 and 2024 elections. Perhaps this reflects a desire to avoid thinking about the implications of Donald Trump's comeback campaign. But Trump and the rest of the country are on a collision course with Section Three. It's just a matter of time. 

Autre Temps, Même Moeurs? Emergency Stay Practice in the 1960s and Today

Mark Tushnet

I’ve been reading some of the books about civil rights history that I’d accumulated in my office, now shipped to my house. I’d read most in manuscript, but it’s instructive to read the final versions as something like a unit.

In reading Anne Emanuel’s interesting biography of Judge Elbert Parr Tuttle, I was struck by some similarities between the emergency motions practice in the Fifth Circuit during the era of desegregation litigation and current emergency motions practice (mostly in the Supreme Court but to some extent in lower courts). Judge Tuttle and his pro-Brown colleagues often had to deal with obstructionist tactics by district court judges. Emanuel shows how they engaged in what can fairly be called creative interpretations of their statutory authority to issue stays – the most creativity being exercised in connection with stays issued by individual judges (so that they didn’t have to take the time to convene a panel, which might include circuit judges less supportive than they of Brown). She also describes some occasional careful judge-shopping by civil rights plaintiffs (it had to be occasional because in the deep South there weren’t many district court judges who were firmly committed to Brown and its implications).

And there were departures from norms of judicial administration: Judge Tuttle refused to assign segregationist judge Ben Cameron of Mississippi to three-judge courts dealing with Mississippi “race” statutes (as they were described then), contrary to the norm that the circuit judge assigned to a three-judge court would be from the state whose statute was being challenged. Emanuel also describes a brouhaha about how panels in civil rights cases were composed, by judge John R. Brown, in which Brown was charged with manipulating panel assignments to ensure that the panels would come to the “right” – that is, pro-desegregation – decision. The evidence is that Brown did some minor manipulations but that mostly he took advantage of neutral reasons – one judge was getting old and was chronically ill making travel difficult, another didn’t like to travel away from his home base – to assemble “good” panels. I note that in all this Griffin Bell doesn’t come off at all well.

All this was at the circuit level, with the Supreme Court weighing in through per curiam decisions on the merits and granting or denying stays summarily. Today the issues arise mostly at the Supreme Court level, though judge-shopping is common and some of the stay practices at the circuit courts have been controversial. (For me, maybe the most dramatic difference is technological: Lawyers had to have their papers physically typed and sent by car or plane to distant courthouses, rather than filed electronically.)

The similarities, though, are also striking. Then and now the emergency practice seems strongly result-driven, in the sense that judges interpret their procedural authority creatively, seemingly so that they can reach the substantive results they want to reach.

A couple of observations: (1) In neither period, it seems to me, was the judges’ procedural creativity out of bounds (that is, the judges then and now haven’t adopted plainly unreasonable readings of their procedural authority).

(2) There’s a subjective and an objective account of the phenomenon I’ve described: The subjective one is that judges who believe that the stakes are quite high are going to be creative if they need to be. The objective one is that when the stakes are high and lower court judges don’t fully understand that they are, appellate court judges should be creative. I have a pretty strong sense that today’s disagreements about the emergency stay practice are structured around disagreements about whether the conditions for creativity set out in the objective account are present.

Temporality and Case-Based Constitutional Theory

Mark Tushnet

Catching up on my reading after my “to read” books arrived from Cambridge (after eighteen months of loneliness there), I was struck by some features of the constitutional theory books I had.

I distinguish among three types of constitutional theory. (1) Foundational constitutional theory asks questions about such matters as the relation between a people and a state, the nature of legislative and executive power, what a constitution does, and – sometimes – the minimal substantive content of any normatively attractive constitution. This sort of theory is fundamentally an exercise in political theory of a particular sort and draws upon literature in political theory often written by political scientists and philosophers.

(2) Legal-realist constitutional theory is about what the Supreme Court is going to do in the near term. It focuses on the Court’s personnel and its location in the writer’s political time and space. The content of legal-realist constitutional theory changes every time a justice leaves the Court and a new one arrives. (I was told that when Charles Alan Wright taught a seminar on pending Supreme Court cases, he had files on each sitting justice to use in developing his accounts of what the Court would do and that when a justice left the Court Wright threw out the files as no longer relevant. If that story’s true, it confirms Wright’s place is the universe of legal realists [which I think is accurate with respect to his work generally].)

(3) Case-based constitutional theory attempts to construct a normatively attractive account of the law as it is – that, attempts to arrange constitutional cases in a framework that makes sense and seems if not completely satisfactory at least normatively acceptable. This is the domain of doctrinal law professors, the best of whom (say, Laurence Tribe and Richard Fallon) are spectacularly good at it. (Political scientists sometimes try to do doctrinal analysis, but typically – and fortunately – only in relatively limited domains [“fortunately,” because political scientists, even those with law degrees, are, again typically, rather wooden in how they work with doctrine; they, again typically, can gain some facility with the cases in some well-defined domain, but rarely have the scope that the best doctrinal law professors do].)

Case-based constitutional theory is in an important sense a-temporal. Every not-overruled case is part of the set of cases that are to be used in developing the framework. Older cases might have somewhat less weight than more recent ones to the extent that they rest on assumptions about the surrounding social circumstances (and the like), which might have changed, but they always retain some precedential value, and can be retrieved and relied on as heavily as more recent ones when doing so allows the theorist to create a more attractive framework. (In my experience Tribe is the master of this technique.)

At the same time the best case-based theorists know that the substance of constitutional law changes. And sometimes the changes are substantial enough to require a substantial alteration in the framework that is the theory’s goal. Minor changes can be dealt with easily; they are like renovations of the interior of a university library made (by the designers) to make the users’ experience better even though in the eyes of some they reduce the library’s usefulness. Some more substantial changes can also be accommodated, as if – to continue the metaphor – a new annex has been bult for the library, but in a style the designers believe compatible with the original. And here too there might be a gap between the designers’ view of compatibility and the theorists’: Think of something like a Frank Gehry annex to a classical-form library; the designers will surely have a story about why the annex is indeed compatible with the original.

Sometimes, though, the changes are even more substantial – as if the library has been torn down and rebuilt from the ground up. (I personally think of these as changes that accompany shifts from one constitutional regime to another, but you don’t have to accept that account to understand the point.) And this poses a problem for case-based constitutional theory because many prior cases won’t be overruled – case-based theories can deal with that – but will simply be abandoned or forgotten.

The problem runs deeper, and it seems to me evident in a number of the works in case-based theory that I’ve read recently. Sometimes you don’t know whether a decision that doesn’t fit comfortably into the framework you’ve developed is a minor renovation or the first (or second, or …) step in tearing the old library down. Because, as Justice Souter once put it, individual cases don’t announce that they are about to work a transformation in the framework, but eventually “we know what happened.”

Here too the best case-based theorists understand the difficulty when it confronts them. (Again to revert to my own account, the difficulty arises most pressingly in periods I call interregnums between constitutional regimes, which in recent experience have last as long as a decade or so.) At those times the best works in case-based constitutional theory display some ambivalence about the entire enterprise, which from the outside might look a bit as if they are taking a stance of ironically distancing themselves from their own work (though from the inside it surely doesn’t seem to be that). Or, as with Tribe’s “suspension” (now, I think we can say, abandonment) of his work on his constitutional law treatise, the case-based theorist can give up on the enterprise and become something else.

I close with a cynical observation, that a fair amount of case-based constitutional theory doesn’t approach the sophistication of the best works. Observing renovations/replacement in progress, the case-based theorist rages against the dying of the light – which to me makes that work substantially less interesting than that of the best case-based theorists.

[If I had the intellectual energy to do it, this blog post would be the germ of a law review article, but I don’t and it won’t.]

Give Me Liberty and Give You Death

Andrew Koppelman

You can rarely be sure that judicial incompetence will kill people, but Federal District Judge Terry Doughty crossed that line when he issued an injunction blocking the Biden Administration’s requirement that nursing home personnel be vaccinated for Covid.  (The injunction, which the Administration is appealing, has since been modified by a higher court to apply only in the 14 states that sued.)  This week, Supreme Court Justice Neil Gorsuch produced something worse than incompetence.

I explain in a new column at The Hill, here.

A Covert Constitutional Revolution? Is Basic Law: Israel--the Nation-State of the Jewish People Democratic?

Guest Blogger

Rivka Weill

The Short Answer – It wasn't, now it is…In the process, the Court has adopted and applied the unconstitutional constitutional amendment doctrine without acknowledging it.

What the Senate Parliamentarian Could Learn from Justice Scalia

David Super

      Late Thursday, Senate Parliamentarian Elizabeth MacDonough rejected Democrats’ third proposal to include relief for undocumented immigrants in the pending Build Back Better reconciliation bill.  Specifically, she ruled that these provisions violate section 313(b)(1)(D) of the Congressional Budget Act, which allows a point of order to be raised against a provision “if it produces changes in outlays or revenues which are merely incidental to the non-budgetary components of the provision”.  This was the same basis on which she rejected the Democrats’ two previous proposals. 

     All three of these invocations of the “merely incidental” rule are strange because the various immigration provisions that have been proposed for inclusion have been estimated to cost tens of billions of dollars.  (Once legalized, immigrants will be able to apply for benefits such as Social Security that their taxes have long supported.  Immigrants also will apply for refunds when their taxes are over-withheld.)  The “merely incidental” rule’s primary function is to prevent senators from inserting some token fines or salary money into a revision of a regulatory scheme having little to do with fiscal policy:  it says you cannot rewrite telecom policy on reconciliation just by charging the big carrier a few dollars. 

     The Parliamentarian justifies her ruling against legalization of undocumented by saying that she believes sponsors’ purposes are primarily non-fiscal even if the language and effect of the provision is quite large.  Taken seriously, this standard has serious problems.  Virtually nothing in this reconciliation bill, in the 2017 tax cut reconciliation bill, or in any reconciliation bill that increases the deficit has a primarily fiscal motivation.  The sponsors of provisions increasing food assistance are not trying to drive up the deficit:  they are trying to feed people, with the increase in the deficit an undesired but acceptable consequence.  The sponsors of the tax cut provisions in the 2017 reconciliation bill did not seek to increase the deficit – indeed, they claimed that dynamic effects would prevent that from happening – they were trying to lower taxes for corporations and the affluent.  Perhaps some Keynesian stimulus measures genuinely seek to increase the deficit, but even then senators emphasize the benefits to the direct recipients. 

     Thus, if applied consistently, the Parliamentarian’s rationale would deny reconciliation protection for measures that increase the deficit.  That might not be bad policy, but previous parliamentarians rejected that interpretation of the Congressional Budget Act when they allowed massive unfunded tax cuts to pass through reconciliation in 2001 and 2003.  Parliamentarian MacDonough followed their precedent in 2017.

     The “merely incidental” rule has not been consistently tied to sponsors’ purposes.  Even if the Parliamentarian was writing on a clean slate, a purposivist standard for interpreting the “merely incidental” rule would be a serious mistake.  Here, she could learn two important points from judicial approaches to statutory interpretation. 

     First, as Justice Scalia notes in A Matter of Interpretation, purpose is almost never unitary.  Some of the immigration provisions’ sponsors likely have primarily non-fiscal purposes, but others just as surely are driven by the desire to have the government stop further impoverishing immigrant communities by collecting, or over-collecting, taxes from them while denying them the benefits those taxes fund.  The Parliamentarian has no possible way of knowing which purpose predominates among supporters or, indeed, which purpose drives any given senator.  Surely an identical provision cannot be “merely incidental” when offered by a civil rights-oriented senator but permissible when offered by one with a redistributive (i.e., fiscal) motivation.  Even on the much more copious record available once a bill has been enacted into law, Justice Scalia warns that divining a unitary or even predominant congressional purpose is a fool’s errand.

     Second, when interpreting statutes – which is what the Parliamentarian is doing when she applies section 313(b)(1)(D) – courts commonly employ a super-strong form of stare decisis.  Because Congress can readily amend a statute that it believes the courts are misapplying, the value of consistency in application supersedes the importance of reaching what the current adjudicator believes is the “best” interpretation.  This is all the more true when interpreting the Congressional Budget Act, which governs repeat players who alternate between the sponsor’s and objector’s roles. 

     Thus, even if the Parliamentarian believes that purposivism is the best method for applying the “merely incidental” rule, consistency is more important.  During consideration of the 2017 tax cut reconciliation bill, the Parliamentarian ruled that Republicans could include a measure opening the sensitive Alaska National Wildlife Refuge to drilling.  The fiscal impact of that provision was much smaller than that of the current immigration changes, and it obviously was motivated by the desire to resolve a question of environmental regulation in favor of the oil companies rather than bring in revenues.  Yet she did not attempt a purposivist analysis of that provision shoe-horned into legislation otherwise uninterested in federal lands.  People who know her tell me she now regrets that decision, but she made it, and as a result that provision is now law.  Whatever the merits of a consistent purposivist approach, an episodic one is both unjust and unhelpful to building respect for the Senate’s procedural traditions and the Parliamentarian’s office.  Even if her decision on the Wildlife Refuge was a mistake, she now should continue making similar “mistakes” and allow Congress to enact a correction if it disagrees. 

     Some are calling for circumventing the Parliamentarian.  In theory, this could be done by having the presiding officer – Vice President Harris or a Democratic senator – overrule a point of order against the immigration provisions of the reconciliation bill notwithstanding the Parliamentarian’s advice. Formally, the power to make these rulings resides in the presiding officer, not the parliamentarian. 

     This would, however, be a radical break from longstanding Senate procedure where knowledge of parliamentary procedure has been considered irrelevant to serving as presiding officer because the real decisions are made by the parliamentarian.  It would effectively obliterate all Senate rules as it would empower the majority party, or the vice president, to ignore those rules at will.  Although the case against the Parliamentarian’s rejection of the immigration proposals is strong, one can readily imagine future Republican presiding officers making completely nonsensical rulings to evade rules that have gotten in their way.  An electorate that was mostly oblivious to Senator McConnell and President Trump packing the Supreme Court would surely not punish these far more nuanced transgressions. 

     Democrats also could circumvent this ruling by firing Elizabeth MacDonough and appointing a new parliamentarian inclined to overrule the point of order.  Because the merits of this ruling are so dubious, Democrats would have little trouble finding a credible replacement who would wholeheartedly agree with their position.  Moreover, precedent exists for such a move:  Republicans once fired a parliamentarian whom they themselves had installed for showing too much independence. 

     This, too, would rapidly result in a lawless Senate.  Firing the parliamentarian felt sufficiently transgressive in 2001 that Republicans felt obliged to reinstall the previous parliamentarian, who had originally been installed by Democrats and who was emphatically not a hack.  If Democrats fire Parliamentarian MacDonough, one can be confident that, no matter how competent her replacement may be, the next Republican majority will install a Sidney Powell clone to replace that person.  Democrats rightly criticized Trump Administration officials, such as former Attorney General William Barr, for focusing their loyalty on their party rather than their country.  We do not need a proliferation of partisan hacks in positions charged with exercising impartial judgment to uphold systemic values.  Parliamentarian MacDonough is wrong in this ruling, but there is absolutely no reason to believe her rulings are anything but sincere.

     Remarkably, some progressives are using this ruling as further justification for eliminating the filibuster.  With an assertive right-wing supermajority on the Supreme Court, strong indications that gerrymandering will put the House of Representatives in Republican hands for most of the coming decade, and polls suggesting that Democrats’ Senate majority and control of the White House are in grave danger, the filibuster may soon be all that prevents the wholesale gutting of almost a century of social progress.  Senator McConnell repeatedly showed his commitment to the filibuster for legislation even when he controlled the Senate and major pieces of the Republican agenda were at stake.  But if Democrats tamper with the filibuster now, Senator McConnell will have neither reason to preserve it nor, likely, the ability to persuade his caucus to do so. 

     If Democrats gut Senate rules now, whether by ignoring the Parliamentarian, sacking her, or curtailing the filibuster, no group will be more vulnerable than immigrants.  The many victories immigrants’ advocates had against the Trump Administration’s anti-immigrant initiatives overwhelmingly relied on statutes that Republicans could easily gut were it not for the filibuster and limitations on the content of reconciliation bills.  This Supreme Court is certainly not going to be extending new constitutional rights to immigrants:  very much to the contrary. 

     And even if the Democratic leadership was short-sighted enough to be willing to incur these huge long-term costs to enact a path to citizenship, the simple fact is that these tactics just would not work.  For this provision, or any other, to make it into law, it must pass three distinct hurdles:  (1) it must be included in the package Senate Majority Leader Schumer brings to the floor; (2) it must survive any points of order that may be raised against it; and (3) it must not be stricken by a Republican floor amendment.  The parliamentary struggles have dominated public attention, but even before the Parliamentarian ruled the first time some moderate and conservative Democrats were expressing opposition to including a path to citizenship in Build Back Better.  If the Democrats were to bypass the Parliamentarian, those senators would be even less likely to agree to include the path to citizenship in the base package and would be all-but-certain to support a Republican amendment to strike it.  The moderate and conservative Democrats have made clear that they see themselves as guardians of Senate traditions; they surely will not abandon those beliefs for a provision they do not like in the first place. 

     Out of all the crucial reforms in Build Back Better, the one I care most about is the path to citizenship.  I value it even more than the Child Tax Credit’s expansion (which involves much more money), more than universal pre-K (an provision I worked on significantly), and more than the improvements to food assistance programs that have been central to my professional career.  Since the outset of the pandemic, I have spent far more time on immigration issues than on any others. 

     It therefore pains me greatly to say this, but a path to citizenship will not be in Build Back Better.  Because the Parliamentarian is focused on provisions’ purposes rather than their particular content, no redraft is likely to change the outcome.  And even if it could, the moderate and conservative Democrats will not walk the plank politically to vote down a Republican amendment to strike it.  The longer Build Back Better is delayed in search of a magic elixir that could allow the path to citizenship to advance, the more the other provisions of that package will be endangered.  And, ultimately, further delay may jeopardize the legislation itself.  This battle was lost not so much when the Parliamentarian ruled as when Democrats failed to take the Maine and North Carolina Senate seats in 2020, failed to preserve more of the moderate senators up for re-election in 2018, and failed to win the Pennsylvania and Wisconsin Senate races in 2016.  No parliamentary gimmicks can patch those fundamental political failures. 

     @DavidASuper1

"Washington's Heir: The Life of Justice Bushrod Washington"

Gerard N. Magliocca

"Gerard Magliocca has a corner on illuminating the history of the Constitution through the stories of neglected but instructive historical figures. His Bushrod Washington enlivens our understanding of the Constitution in its first decades in action. Required reading for constitutional historians and for anyone who wants to understand the legal legacy of the Founding – and the long shadow of George Washington himself." Noah Feldman, Felix Frankfurter Professor of Law, Harvard University.

“I never cease to learn new things from Gerard Magliocca’s research that fundamentally inform and even change how I teach and think about our constitutional narrative. This book is no exception. It fills a gap that we were not even aware existed: the crucial role played by Justice Bushrod Washington in the formative years of the Marshall Court.” –Randy E Barnett, Georgetown Law, and author of The Original Meaning of the 14th Amendment: Its Letter and Spirit

“Magliocca’s biography is a remarkable achievement. It invites the reader to explore, through Washington’s experience, the deeper political and social culture in which the nation’s Founders were embedded — and to consider the extent to which America’s current crisis is shattering its fundamental constitutional commitments.” –Bruce Ackerman, Sterling Professor of Law and Political Science, Yale University

Build Back Better or Build Back Best?

David Super

      It has been a long time since progressives have had the opportunity to advance a broad agenda of social reform with a serious chance of enactment.  President Obama proposed and won adoption of the visionary Affordable Care Act and secured House passage of a climate change bill, but he spent his last six years in gridlock with a hostile Congress.  President Clinton, too, had only two years enjoying a Democratic Congress before spending six years with a Republican Congress to which he capitulated on many important issues.  Otherwise, the last four decades have featured Republican presidents determined to hobble or dismantle some existing programs and largely disinterested in new initiatives on most issues progressives hold dear. 

     It therefore should not be surprising that when President Biden took office after a campaign embracing many progressive concerns, his budget proposals would address many of these concerns aggressively.  Among other things, his proposals would end the stagnation that left child care and subsidized housing programs serving only small fractions of those the programs themselves recognize as being in need.  His budget would continue the improvements in the Child Tax Credit and Earned Income Tax Credit to address persistent poverty.  It would make major investments in responding to climate change, a problem his predecessor refused to recognize at all.  His plan would act to prevent undocumented people and their families from becoming a permanent underclass in this country.  He would broaden access to higher education while strengthening K-12 instruction and preserving through the summers the nutritional supports that school meals offer during the school year.  He would patch weaknesses in the Affordable Care Act that appeared during the decade of legislative neglect that followed the 2010 election, the four years of the Trump Administration’s active sabotage, and the Supreme Court’s holding that states may refuse the ACA’s Medicaid expansion.  And he would provide paid family and medical leave to meet workers’ immediate needs and to allow them to keep their jobs during difficult times. 

     It should have been obvious from the beginning that decades of neglect could be righted in a single year.  Among other things, Congress does not have a progressive majority.  The Democrats have wafer-thin majorities in both chambers, but they only hold those majorities because they have continued to practice some “big tent” politics, including some fairly conservative people who reject the extremism of today’s Republican Party.  Maintaining and expanding this big tent is vital to turning back the current assault on democracy in this country, but it also means that progressives must give up the notions that every Democrat is a progressive and that no persuasion or negotiations are necessary with people who disagree. 

     The question was not whether the large package could win enactment but rather how to get to a package that could.  President Biden could have made his best guess of what could get through and scaled his budget accordingly.  Any such guess would have been inevitably imprecise, and he might have limited the discussion more than was necessary from the start.  Progressive social reforms typically get the lowest of what the budget, the policy, and the politics, respectively, will allow.  If the President’s budgetary top-line had been politically viable but some of his individual proposals were not, the package would have shrunk further. 

     Democratic leaders, too, could have tried to match the package’s size to what could pass by putting more modest limits in the concurrent budget resolution that authorized the current reconciliation process.  Getting moderate and conservative Democrats to vote for the larger numbers, and endure the resulting criticism back home, in hindsight might not have been the best expenditure of finite political capital.  On the other hand, negotiating against oneself when the politics are unclear is usually unwise.  Many of the most politically unpopular features of the 2017 tax law resulted from Republicans setting too low a ceiling on their package’s revenue losses before they had complete estimates and then scrambling to plug the gap.  Lower allocations in the budget resolution also might have inhibited committees’ development of coherent policies. 

     The higher numbers in the budget resolution likely misled many progressives into believing that a package approaching that size was truly possible.  In fact, moderate and conservative Democrats had put the leadership on notice early that they would not support spending anywhere near that level.  It now appears that the leadership did not have a clear plan for how to manage grassroots expectations.  And many progressive leaders wanted to keep those expectations high so that their base would be energized to press for the largest possible package.

     The mismatch between the large package that the budget resolution made procedurally possible and the much smaller one that was politically possible created a series of tensions.  In the House, progressives wanted to go on record voting for a large package even if it could not ultimately become law; Members from conservative districts, however, did not want to take the political heat for voting for controversial measures with no chance of enactment.  Votes for ambitious House proposals widely known to have no chance in the Senate played key roles in the Democrats’ loss of their House majorities in 1994 and 2010.  The ultimate compromise was a bill containing many features that clearly could not pass the Senate but also falling well short of what the budget resolution allowed. 

     As the bill moved to the Senate it faced three challenges, only one of which is widely understood.  First, Democratic leaders and now President Biden must negotiate with the moderate and conservative Democrats to secure the fifty votes needed to allow Vice President Harris to break a tie and put the bill over the top.  Second, the bill must undergo a “Byrd bath” through which the Senate Parliamentarian determines which provisions of the legislation violate the special Senate rules governing reconciliation bills.  With no chance of obtaining the sixty votes required to waive these points of order and potential procedural complications if the provisions are stricken through objections on the Senate floor, Senate Majority Leader Schumer will remove anything against which the Parliamentarian would sustain points of order.  And third, once the legislation reaches the floor, Republicans have relatively broad ability to force Democrats to vote on an unlimited number of politically difficult amendments. 

     These three processes interact.  Democratic leaders do not want to waste what limited leverage they have in negotiations with moderate and conservative Democrats on provisions that ultimately will not survive the Byrd bath.  With some high-priority provisions facing reluctance both from the moderate and conservative Democrats and from the Parliamentarian, the Byrd bath needs largely to be complete before the leaders know which pieces are worth prioritizing in negotiations.  It now appears that the Parliamentarian’s rulings on several key provisions, which had been expected imminently, may not appear until January.  This ensures that no deal with the moderate and conservative Democrats is possible until the New Year.

     Moreover, many people wrongly assume that whatever package Senator Schumer and President Biden can negotiate with Sens. Manchin and Sinema will be the final legislation.  The leadership needs a deal with all Democratic senators to bring the bill to the floor, but once the bill is there, the leadership likely will need every Democrat to vote against all Republican amendments that would weaken the bill.  Agreements to oppose all amendments to an agreed-upon package are common in congressional negotiations, but those agreements generally come only when all parties are genuinely content with the deal.  As progressives keep pressing the moderates and conservatives to accept provisions the latter thoroughly dislike, the odds of a deal to oppose all amendments dwindle dramatically. 

     The process by which these amendments come to a vote increases the pressure on vulnerable Democrats.  To prevent the minority from filibustering through the amendment process, reconciliation rules require that, after the permissible twenty hours of debate have been exhausted, any amendments remaining be decided without debate.  (Customarily, the Senate grants unanimous consent for one minute of debate on each side of each amendment.)  This gives senators no opportunity to explain votes that may be unpopular back home.  An energized minority can force votes on dozens of hot-button amendments during such a “vote-a-rama.”  Thus, for a controversial provision to be enacted, moderate and conservative senators must not only vote for a large package containing that provision but also must vote down an amendment to strike that provision from the bill. 

     Progressives understandably expressed disappointment at several key omissions from the version of the legislation presented as being the near-final deal earlier this Fall.  Progressives pressed senators not to make that version final until some key provisions that had fallen out of the legislation, such as paid family leave, were restored.  In taking this position, they implicitly assumed that the version they had seen was a floor beneath any final deal and that, with time to apply more pressure to Senators Machin and Sinema and more time to develop alternative designs that the Parliamentarian would approve, something better could be achieved. 

     It now seems clear that the final legislation will be significantly weaker than the version released as a tentative deal.  It is certainly clear that progressives were not the only ones to mobilize as the legislation stalled.  The cost of the largely futile effort to pressure reluctant senators to allow inclusion of provisions they clearly oppose – provisions that they might well have voted to strike during vote-a-rama – has been stalling the legislation long enough to allow Republicans and special interest lobbyists to pick apart important provisions that were securely included in the legislation initially announced.  For example, after having previously accepted expansion of the Child Tax Credit, Senator Manchin is now arguing publicly for its complete removal.  The longer the legislation is delayed to try to rescue doomed provisions, the more similar casualties are likely. 

     Build Back Better still seems likely to pass eventually.  And when it does, it will make dramatic improvements in several areas of long-neglected social and environmental policy.  But before that can happen, someone will have to tell several worthy constituencies with compelling cases for important proposals that the train will have to leave the station without them.  That will be tragic, and at this point it is unclear who has the heart, and the credibility, to do that. 

     @DavidASuper1