Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
It’s Not About What You Know: An Overview of Hyperlink Law’s Troubles
New Controversies in Intermediary Liability Law
The law related to hyperlinks is breaking.
Hyperlinks are a system for directing readers around the internet, but the
rules vary by the location of whoever makes the link. People use the links once
and move on, but the rules seem headed towards active link monitoring. The
internet treats hyperlinks as all of a kind, but courts are breaking them down
by type, content, and specialty.
In the metaphor of the internet as highway,
hyperlinks are the forks, side roads, and driveways into the unknown for the
online traveler. Sometimes they are neglected and become overgrown. Other times
they lead to a hidden gem. Yet other times still there’s a massive pothole the
second you turn the corner. Most often, hyperlinks provide valuable information
for the explorer, directing them to sources, background, context, or the
endless rabbit holes of exploring related topics. Anyone that has come up for
air after a few hours on a deep wiki-walk is familiar with this
use of hyperlinks and the way they can make it easy to traverse the internet. A
second type of hyperlink is
used for humor, surprising the reader with the result or the mouseover text
previewing where the link is going. Some hyperlinks can be embedded via various
technologies to appear on the page to show a preview of what is coming without
the need to leave the current URL, and at times the presence or absence of that
preview depends on the user’s settings (such as whether their browser allows a
website to load images). A small handful of hyperlinks are harmful as well,
tricking the reader into intentionally visiting a site with malware or spyware
that aims to steal information or wreck their computer.
The law, however, does not distinguish
effectively between the many ways hyperlinks are used online. Rather, the law
on hyperlinking has split by region in different ways. In the United States,
the law is currently in flux and has focused mostly around liability for
copyrights. Perfect 10 v. Amazonestablished what’s known as the “server test.” In Perfect 10, Google thumbnail images that
acted as hyperlinks linking back to full size originals were found not to
infringe copyright law, in significant part because the full size images were
not on Google’s servers and therefore had not been copied. However, in a recent
case, Goldman v. Breitbart,
the court held that the fact that a picture of Tom Brady was visible on a
Breitbart web page to the reader was enough for copyright infringement.(The
link in this case was an “embedded” image, meaning that the reader would see
the image on Breitbart without Breitbart making a copy of it. Technologically,
that occurred by instructing the user’s browser to access it from Twitter
currently unclear where U.S. law is headed and what the legal basis might be
for linking to images.
In Europe, the law attempts to distinguish the
lawfulness of a hyperlink based on the knowledge of the person who created the
link, following the recent GS
Media case. However, GS Media overwhelms its knowledge standard with an additional rule
that website creators who attempt to make money must carry out an investigation
of what they link to and will be presumed to have knowledge of the content
behind a hyperlink. While this does not affect every site, such a large number
of sites either have minor advertising or encourage users to make some kind of
purchase that it impacts a tremendous part of the internet. Europe also has a
further complication for copyrighted works in which they consider whether and
where the work was already accessible online. If something was already freely
available and a link does not meaningfully change who can access it, it may not
violate copyright because there was not a publication to a “new
These various standards are problematic because
they change hyperlinks from something easy to use into something complicated.
While judicial attempts to force changes in behavior can sometimes be
effective, hyperlinks are widely used by the general public in a way that is
not consistent with either U.S. standards for copyrighted works or European
standards for presumed knowledge. The likely result of these cases is either
that many people will violate the law unknowingly or that large companies will
be forced to implement various blunt technological measures to limit use of
hyperlinks, harming online discourse and greatly adding to the difficulty of
finding smaller websites that are not already well-known. U.S. law, in
particular, is making it increasingly more difficult to share media online
without paying licensing fees of some sort, despite the fact that a substantial
majority of the population does share all types of media constantly from site
GSMedia’s knowledge standard and Svensson’s “new public” ideas might be
on the right track if they were made to more closely fit existing industry
practices and consumer expectations, rather than try to change the behavior of
the public. We do trust that someone
posting a link is not attempting to harm our computers or luring us into
committing crimes. Therefore it can be reasonable to hold someone liable for
their links if the link and its context show that they knew (or clearly should
have known) that they were leading people to something harmful. But we do not
and courts should not require someone making a hyperlink to investigate broadly
or continually monitor their hyperlinks to ensure that nothing changes in a way
that becomes illegal. Nor should site owners be held strictly liable because
they make money when context and content do not make it clear that the owner
meant actual harm. As the roads of the internet, hyperlinks should be treated
akin to road construction: a construction crew might be liable for building a
faulty road, but they are not liable years later when the owner of the property
allows it to become overgrown.
Jacob Rogers is Senior Legal Counsel at the
Wikimedia Foundation. His work includes international litigation, government
requests and Trust & Safety work for the Wikimedia Foundation across
multiple jurisdictions. He can be reached at jrogers at wikimedia.org.
The challenge of keeping harmful and illegal content off the Internet is as old as the Internet itself. Meeting that challenge, however, has never felt as urgent as it feels now. And technology companies have never felt so pressured to figure out how to do it quickly, at scale. Facebook CEO Mark Zuckerberg recently assured members of Congress that advances in machine learning over the next few years will improve and more fully automate what he admits has been a deeply flawed process for removing banned content from Facebook. In an op-ed published in The Washington Post, Zuckerberg actually recommended federal legislation requiring online platforms to “build systems” that block unwanted speech.
Whereas Zuckerberg is relatively new to the filtering faith, the music and film industries have long extolled the virtues of enforcing copyrights online through automated content recognition (ACR) technology. For the better part of the last fifteen years, these industries have been arguing that the Digital Millennium Copyright Act’s reactive framework for removing infringing user-generated content (UGC) from online content-sharing platforms is woefully inadequate, and that such platforms should be required to deploy proactive “technical measures” for preventing copyright infringement. Music industry lobbyists point to YouTube’s voluntarily-implemented Content ID system as proof that filtering technology is available and affordable. If YouTube is already filtering, they argue, why not just make it a legal requirement for everyone?
The music industry views a statutory filtering mandate as the key to capturing revenue now lost in what they call the “value gap” between what YouTube pays to license copyrighted music and what on-demand streaming services like Spotify pay. In the United States and the European Union, YouTube and other UGC-sharing platforms have historically been protected by statutory safe harbors that insulate them from liability for users’ infringements, as long as they comply with rightholders’ takedown requests. Safe harbors give UGC-sharing platforms the legal cover they need to provide open forums for public expression.
Because safe harbors in their original form put the burden of monitoring for infringement on rightholders, YouTube has had no regulatory incentive to assume that burden. It has, however, had a business incentive to offer the music industry’s big players access to Content ID in return for licenses to popular content. The terms of those licenses have been negotiated in the shadow of the safe harbors and include what rightholders believe are unfair ad revenue splits for views of infringing UGC videos that rightholders use Content ID to monetize instead of blocking. At the end of the day, the music industry doesn’t want infringing UGC kept off YouTube. That would mean giving up a prime market that has so far been worth more than six billion dollars to them in ad revenue. What the music industry wants is a bigger share of YouTube’s pie, and it aims to get that by convincing policy makers to alter the regulatory incentives around monitoring for all services that allow users to publicly share content.
Now that streaming has supplanted paid downloads as the dominant format for digital music delivery, the music industry wants all platforms that stream copyrighted content to be treated equally under copyright law—regardless of the fact that dedicated music platforms like Spotify don’t host UGC at all and therefore don’t face the open-ended legal risk that safe harbors are designed to limit. Nor do closed platforms like Spotify offer the general public open-ended opportunities for self-expression and creative production. Because UGC platforms are open to all comers, they cannot possibly proactively license the entire universe of copyrighted content their users might ever upload. That’s why safe harbors exist, and why they have historically placed the burden of monitoring for infringements ex post on rightholders.
Wealthy tech giants like YouTube and Facebook can likely afford to bear the legal risk associated with narrowed safe harbors. And they can afford to bear the high cost of operating sophisticated ACR systems in terms of both technological and human resources. (In a 2018 report on the company’s anti-piracy efforts, Google said it has invested $100M in building and operating Content ID.) Emerging and smaller online businesses lack such resources, however. Constricting safe harbors through de facto or de jure monitoring obligations for platforms could therefore substantially limit dynamism at the Internet’s now highly concentrated edge, where consumers find themselves locked in to mega-platforms with few competitors. Copyright policy adjustments aimed at redistributing wealth from Big Tech to Big Music risk the unintended consequence of further entrenching the few that can “pay to play” under a tightened liability regime.
As the U.S. Copyright Office mulls recommending changes to the scope of the DMCA safe harbors, and EU member states prepare to transpose Article 17 (formerly Article 13) of the controversial Digital Single Market (DSM) Copyright Directive into domestic law, now is a good time to take a hard look at whether it makes sense to hardwire ACR systems like Content ID into copyright law through “notice-and-staydown” requirements.
Many urgent questions arise: Should the wide universe of UGC services that have flourished for two decades under the protection of safe harbors lose that protection so that Big Music can secure bigger payouts from Big Tech? Is the public’s interest served by changes to copyright law that could exponentially elevate operating risk for all online services that allow users to share content? Should copyright safe harbors be conditioned implicitly or explicitly on platforms’ implementing ACR systems? Are such systems accessible and sustainable for services that lack YouTube’s resources? Are ACR systems fit for purpose when it comes to protecting lawful expression, including fair use of copyrighted material? If not—and we do have ample evidence of their limits—how strongly should that militate against public policies requiring or encouraging broader deployment?
The public needs and deserves evidence-based answers to these questions before new laws favoring or requiring deployment of ACR systems are enacted. In Europe, these questions are now largely moot, given parliamentary approval of the DSM Copyright Directive. In the United States, however, the conversation about potential modifications to the DMCA is only getting started. It is seductive to look for technological solutions to content-related problems on massive platforms like Facebook and YouTube. Given the urgency and the scale of some of those problems, it is in the interest of both the platforms themselves and policy makers to put their faith in a quick technological fix. The public, however, should be skeptical, because the competitive and expressive costs of making UGC platforms filter everyone’s speech before it can be shared will be profound.
Annemarie Bridy is the Allan G. Shepard Professor of Law at the University of Idaho College of Law, Affiliate Scholar at the Stanford Law School Center for Internet and Society, and Affiliated Fellow at the Yale Law School Information Society Project. Professor Bridy specializes in intellectual property and information law, with specific attention to the impact of new technologies on existing legal frameworks for the protection of intellectual property and the enforcement of intellectual property rights. You can reach her by e-mail at abridy at uidaho.edu.
Introducing ‘New Controversies in Intermediary Liability Law’ -- an Essay Collection
What do we talk about when we talk about intermediary liability? Intellectual property laws likely come to mind first – the DMCA, Section 230, and so on. Fresh information ecosystem challenges like content moderation issues and the spread of “fake news” rise to the forefront as well. There are also growing concerns around privacy and cybersecurity issues, as well as the specter of overreaching tech platform governance.
Depending on whom you ask, all of the above may fall under the larger umbrella of issues related to “intermediary liability,” or only a number of them may be directly relevant. As the internet and intermediaries become more important in modern society, a growing number topics could qualify as related to the liability (or responsibility) of internet intermediaries. Indeed, it is time to recognize that the field of intermediary liability law has significantly grown since its arguable beginnings in a few discrete intellectual property laws. In other words, when we talk about intermediary liability, we must recognize how far and widespread the field has grown.
This essay collection, “New Controversies in Intermediary Liability Law,” explores the contemporary state of intermediary liability law. It features diverse perspectives on the most pressing and current intermediary liability issues, highlighting the different topic areas that matter most today. Annemarie Bridy writes on filters and the fate of safe harbors. Aleksandra Kuczerawy explores the uncertain future of Article 15 of the E-Commerce Directive. Jacob Rogers explains the problems with hyperlinking laws. Anupam Chander considers different models for a “Facebook Supreme Court.” Eric Goldman offers a pitch for preserving Section 230 to protect market entrants. Amélie Heldt delves into the role of Facebook in spreading and controlling misinformation related to E.U. elections. Martin Husovec questions the lack of online due process. Michael Karanicolas warns about the threat of privatized censorship through platforms. Daphne Keller provides a policy tool kit for crafting new intermediary liability laws. And finally, I conclude the collection with some remarks on future directions for intermediary liability law and legal scholarship.
We are honored to present this series of interesting and informative essays on Balkinization, with the gracious support of Professor Jack Balkin. We will also publish these essays as a publicly available collection on the Information Society Project website when we have concluded the series. In addition to highlighting the diversity of intermediary liability issues relevant today, we hope this essay collection will further the important discussions currently being had on how best to protect the open internet, promote access to information, and develop and maintain a healthy online environment.
Tiffany Li is a Resident Fellow at the Information Society Project, where she leads the Wikimedia/Yale Law School Initiative on Intermediaries and Information. You can reach her by e-mail at tiffany.li at yale.edu
Democracy and Dysfunction joins a
distinguished list of seminal works on constitutionalism in the United States
that have universal titles. The tradition is honorable.Participants include such classics as John
Hart Ely’s Democracy and Distrust,
Ronald Dworkin’s Taking Rights Seriously,
Gerald Gunther’s Constitutional Law,
and, for that matter, Sandy Levinson’s Constitutional
Faith and Jack Balkin’s Constitutional
Redemption. Each work in different ways contributes substantially to better
understandings and evaluations of the constitutional experience in the United
States.Democracy and Dysfunction does so by insisting we pay more
attention to the structures of American constitutional politics, which include
state equality in the Senate and notions of political time, than to the latest
Supreme Court decisions.The tradition
is problematic.Distinguished studies of
constitutionalism in the United States with universal titles risk confusions
between the constitutional experience and the constitutional experience in the
United States. Past works in this tradition imply that the United States is the
modal constitutional democracy, that the extent a regime differs from the
United States that regime is less of a constitutional democracy.Democracy
and Dysfunction highlights severe problems with constitutional democracy in
the United States, but the lack of comparative perspective leads Levinson and
Balkin to focus on distinctive American explanations and solutions to what may
be more global problems, most notably, at least from the perspective of this
essay, increases in global economic inequality, decreases in the power of
unions across the universe of constitutional democracy and the challenges of
putting together progressive coalitions that combine progressive
cosmopolitanism and economic populism.
Democracy and Dysfunction in the United
and applies Levinson and Balkin’s pathbreaking analysis of American
constitutionalism to contemporary constitutional politics in the United
States.Both go far beyond the standard
“did the Supreme Court get the Constitution right” when exploring and elaborating how the contemporary
organization of constitutional politics is responsible for a regime that cannot
perform such basic functions as budgeting and seems ever more in hock to a
smaller group of affluent donors.Levinson
explains the textual foundations for the decline of democracy and the
increase of dysfunctional constitutional practices in the United States. His
letters to Balkin detail how such specific textual mandates as state
equality in the Senate and the electoral college undermine both majority rule
and promote a government that tends to the needs of white rural farmers at the
expense of persons of color in the inner cities.Trump and the Republican Party prosper because the hardwired constitutional structures mandated by the constitutional text permit minorities to control the national
government and even further entrench minority rule.Balkin elaborates on how political time and
political movements structure constitutional politics in the United
States.His letters to Levinson emphasize
how political coalitions at the end of their political time became ripe for
overthrow as they must resort to increasingly anti-democratic strategies to
retain power.Trump and the Republican
Party reflect the spent energy of the Reagan Revolution. Their tactics, Balkin
suggests with cautious optimism, while concentrating power in an ever more rapacious and bigoted donor class, are inspiring a progressive backlash that is
likely to result in constitutional practices that are more democratic and less
Supreme Court watchers know all about "defensive certiorari denials." This is when a Justice votes to deny review of a case because she is worried that a grant will lead to a bad outcome on the merits.
The Alabama abortion law just enacted may present the opposite situation. The lower courts will make quick work of the statute, relying on Roe v. Wade and Planned Parenthood v. Casey. Then Alabama will file a certiorari petition. At first glance, you might think that the four liberal Justices would vote against review, fearing that the Court will overrule these cases.
They may instead view this as the best vehicle for reconsidering Roe and Casey. Here's why. First, forcing the Court to consider this issue in a presidential election year will put more pressure on the Court's uncertain members about whether they want to walk the plank on this issue. Second, the Alabama law gives the Court no way to evade the basic question. Neither statutory construction nor a narrow ruling is possible for a law that expressly bans all abortions with only one exception. Third, the lack of exceptions and the stiff criminal penalties make the Alabama statute an especially unattractive case for the Justices interested in narrowing abortion rights.
All three of these reasons might explain why five Justices would deny review of Alabama's certiorari petition. But only four Justices need to vote yes. Indeed, you could even argue that they should do so after the District Court enters its inevitable judgment (assuming one party files a petition). After all, what will review in the Eleventh Circuit add to the story? Basically nothing. So don't be surprised if the case gets to the Court quickly. Posted
by Gerard N. Magliocca [link]
Does Trump represent the end of the Reagan regime, or the beginning of something far more dangerous?
In today's New York Times, Tom Edsall gives an outstanding summary of the academic debate over whether Donald Trump is a disjunctive president, or something far more dangerous. His column includes quotes from Theda Skocpol, Steven Levitsky, Daniel Ziblatt, Julia Azari, Scott Lemieux, and, of course, Stephen Skowronek himself.
Most of the commentators argue that Trump does not fit well into Skowronek's model of presidential leadership, and that he raises distinctive dangers of authoritarianism that we simply have not seen in the past. Azari and Lemieux argue that we may be headed into a long and exhausting conflict between two evenly matched, ideologically polarized parties.
long post sketches two thoughts prompted by time with the wide-ranging,
provocative, and fecund letters that make up Democracy and Dysfunction. The first thought is that U.S. politics
exhibits a surplus of claims to
political authority--the right to rule. I suggest that this surplus is both a
worse thing than many constitutional commentators have supposed and a specific
detriment to majoritarian democracy, which may itself be a better thing than is
often supposed. The second thought is that U.S. politics may also be developing
a deficit of the resources of
legitimacy that any program of democratic reform needs—particularly progressive
and egalitarian reform. The two thoughts are deliberately set in tension with
each other. The first is, generally speaking, my view. The second is the
trouble that haunts it. I have tried to stay with that trouble, at least for
the length of this post.
The purpose of this post is to call attention to an excellent new article in the Yale Law Journal by Gregory Ablavsky. It's called Empire States: The Coming of Dual Federalism. The citation is 128 YLJ 1792, or you can just find it here:
Without attempting to explain everything that makes this article worth reading, I'll offer this: Ablavsky argues that the conventional view of the Founding as a moment when the Founders "split the atom of sovereignty" gets a major piece of the story backwards. In practice, the major change in the structure of sovereignty worked by the adoption of the Constitution was not the replacement of a system whereby sovereignty was lodged in a single location to one where it was divided between state and national governments. Instead, the Founding was a moment when the number of places where sovereign power was located was definitively *reduced* to only two (i.e., the state and national governments). Before that moment, Ablavsky points out, states were not as practical matters the wielders of sovereign authority. On the ground, they competed with a dizzying array of other wielders of power--towns, counties, juries, churches, corporations and charter companies, secessionists and insurrectionists, and so on. Seen from this perspective, a major piece of the Constitution's work was to enlist national power in the service of making states sovereign in practice for the first time by putting the overwhelming force of the national government behind the state governments as against those other contenders.
I make no effort to convey Ablavsky's argument in full here, let alone to defend it. That's what the article is for. My point here is simply that people who want to understand this subject matter should read the article. This work is something with which the field must grapple seriously. Posted
by Richard Primus [link]
Can Congress Investigate Whether the President Has Complied with the Law?
Attention, first-year ConLaw students who haven't yet taken your final exams!: You might want to consider how you'd answer that question.
No, really. You're no doubt wondering: Is that a trick question? Well, until today it would have been. But now . . .
* * * *
The House Committee on Oversight and Reform recently asked Mazars USA LLP, one of Donald Trump's accountants, to provide documents and information relating to the firm’s preparation, review, and auditing of financial statements for Trump and his business entities. Mazars told the Committee that it couldn't voluntarily provide the requested documents without a subpoena, and so on April 15th the Committee issued a subpoena to Mazars for the documents.
Trump sued Mazars and the Committee Chairman (who was soon replaced as a defendant by the Committee itself), seeking to enjoin the Committee from enforcing its subpoena to Mazars.
This case doesn't raise any issues of executive privilege or immunity from legislative process. Trump's claim is entirely predicated, instead, on the argument that Congress lacks any legitimate investigative authority that could justify trying to obtain Trump's financial records from Mazars.
A couple of hours ago I attended a hearing that Judge Amit Mehta held on the merits of Trump v. House Committee on Oversight and Reform, No. 19-1136 (D.D.C.). Judge Mehta began his questioning of Trump's lawyer, Will Consovoy, in precisely the right place: He asked, one by one, whether Congress has the power to inquire into any or all of the four specific topics identified by Chairman Elijah Cummings in his memorandum to the Committee a month ago, explaining the basis for the request to Mazars. Cummings wrote that:
The Committee has full authority  to investigate whether the President may have engaged in illegal conduct before and during his tenure in office,  to determine whether he has undisclosed conflicts of interest that may impair his ability to make impartial policy decisions,  to assess whether he is complying with the Emoluments Clauses of the Constitution, and  to review whether he has accurately reported his finances to the Office of Government Ethics and other federal entities. The committee’s interest in these matters informs its review of multiple laws and legislative proposals under our jurisdiction, and to suggest otherwise is both inaccurate and contrary to the core mission of the committee to serve as an independent check on the Executive Branch.
Judge Mehta started from the end of this litany: Does Congress have authority to inquire into whether a president "has accurately reported his finances to the Office of Government Ethics?," he asked.
No, said Consovoy.
What about to assess whether the President is violating the Emoluments Clauses of the Constitution? After all, Judge Mehta noted, Article I, section 9 specifically provides that an officer can't accept any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State, "without the Consent of the Congress."
No go, said Consovoy, Congress can't inquire into the President's possible acceptance of any foreign emoluments, either.
OK, but what about trying to determine whether Trump has undisclosed conflicts of interest that may impair his ability to be impartial in the conduct of his office?
(At this point the die was cast: Judge Mehta didn't get around to asking specifically about Congress's authority to investigate whether the President may have "engaged in illegal conduct before and during his tenure in office," because it wasn't hard to guess what Consovoy's response would have been. Indeed, according to my notes Consovoy did say at one point that Congress lacks any power to assess whether the President is violating the law!)
When it was his turn to argue, Counsel for the House Doug Letter explained why Chairman Cummings was right that "[t]he committee’s interest in these matters informs its review of multiple laws and legislative proposals under our jurisdiction"--which ought to be enough, in and of itself, to justify the subpoena.
But even apart from such "legislative" functions, Judge Mehta wondered, what about Congress's "informing function"--the power of Congress, which the Supreme Court has recognized, "to inquire into and publicize corruption, maladministration or inefficiency in agencies of the Government"? Watkins v. United States, 354 U.S. 178, 200 n.33 (1957). After all, as the Court noted in Watkins, id., "[f]rom the earliest times in its history, the Congress has assiduously performed an 'informing function' of this nature."
Consovoy conceded, as he had to in light of Watkins, that Congress has the power to inquire into and publicize corruption, maladministration or inefficiency in agencies--which are, Consovoy explained, entities created by Congress itself. However, Consovoy hastened to add, Congress does not enjoy a similar power to inquire into and publicize corruption, maladministration or inefficiency by the President.
Wait . . . WHAT? Congress lacks authority to investigate and publicize possible wrongdoing--corruption or maladministration--by the President? Did I hear that right? But cf. Nixon v. Administrator of General Services, 433 U.S, 425, 452-53 (1977) (explaining that Congress enacted a law requiring preservation of a president's records and tapes in order to, inter alia, secure "the American people's ability to reconstruct and come to terms with their history").
Apparently I did, because Judge Mehta, too, was incredulous. He asked Consovoy the obvious follow-up question: Does this mean that Congress's investigations into Watergate and Whitewater [and, I might add, Iran/Contra; etc.] were unconstitutional? Consovoy responded (if my notes are correct) that that would depend upon the basis for those investigations. It was "straightforward," said Judge Mehta: Congress was inquiring into possible violations of the law by the President. In that case, Consovoy said, then yes, perhaps Congress did overstep its authority. [That's my recollection of the substance of Consovoy's responses--not direct quotations. If anyone who attended has a different account, please let me know. Of course when the transcript becomes available I'll insert direct quotations.]
"Bold," "radical" and "unprecedented" don't begin to describe this line of argument. I'm not sure what does. Flabbergasting, I suppose.
I assume Consovoy--a very fine and accomplished advocate--will offer a less astounding, less categorical, answer to such questions when he next has an opportunity to brief them. But for now . . . wow.
* * * *
I should add that Consovoy has an alternative argument, too, one he tried to emphasize at every opportunity during the argument today--namely, that the congressional objectives articulated in Chairman Cummings's letter are not the actual reasons for the subpoena, and that the Committee is, instead, trying to "expose for the sake of exposure,” something that's not within Congress's authority, at least not when the exposure is of purely personal matters unrelated to the performance of a public official's functions. Watkins, 354 U.S. at 200. Although "[t]he public is, of entitled to be informed concerning the workings of its government," that "cannot be inflated into a general power to expose where the predominant result can only be an invasion of the private rights of individuals." Id. The problems with that argument, however, are not only that Congress obviously does have the legitimate and important objectives that the Chairman articulated, but also that courts are generally loath to look behind the reasons offered by a congressional committee. See, e.g., id. (“[A] solution to our problem is not to be found in testing the motives
of committee members for this purpose. Such is not our function.”).
As Judge Mehta's colloquy with Letter indicated, the case also raises questions about whether the particular subpoena at issue here is reasonably tailored to the Committee's legitimate inquiries, and whether the scope of the inquiries exceeds the Committee's jurisdiction. I don't know remotely enough about the facts of the case and the Committee's jurisdiction to offer any informed views on those questions.
should say first that I am deeply grateful to Sandy and Jack for finding my
work on war powers and the constitutional role of trust in government relevant
and discussing it in such detail.One
point of connection between the fascinating joint discussion they have in Democracy and Dysfunction and my own
work is that I was trying to imagine how people on both sides of the political
divide could be convinced to step back and consider that they are prisoners of
a dysfunctional constitutional order.In
many ways the American people are still experiencing the effects of policy
disasters such as the 2008 financial crisis and the Iraq War, disasters that
are the responsibility of both political parties.When both political parties are at fault, it
is not obvious where the American people should turn.My thinking was perhaps they would be more
open to an argument that these policy disasters were not random events but are
themselves the products of constitutional dysfunction.
so arguing, I was trying to find a way to put issues of political and
constitutional reform on the table.As
David Pozen helpfully describes in his post, these issues now are on the table, although it is doubtful
that they are equally attractive across the partisan/tribal divide.Some mainstream Democrats seem to have
finally seen the light, perhaps even including the light Sandy wants to shed on
the parts of our hard-wired Constitution that are undemocratic.
thus agree with the authors that the subject matter of Democracy and Dysfunction is one all Americans should be engaging
with at the moment in our nation’s history.For various reasons a door has been opened that wasn’t before.Fundamental political and constitutional
reform is now a realistic possibility.It
does matter for its prospects if that discussion is identified only with the
Democrats.But the situation is much
improved from the one that existed in the Clinton-Bush-Obama administrations
when reform proposals were regarded as idle talk.
discussion Sandy and Jack conducted over nearly three years plays to their
strengths.The best feature of the book
is that their exchanges get deeper and more interesting as they progress.We acquire a theory of “constitutional rot”
and a list of proposed reforms.This
gives me a lot to chew on.In what
follows, I pick a few of the points that bother or intrigue me the most.
you enormously for inviting me to comment on your new book. While I believe the U.S. constitutional
system is badly in need of some reforms, I think the U.S. Constitution, as
amended, is the best such document in
any of the G-20 constitutional democracies today, and I think you both
seriously underestimate its comparative virtues.
not only disagree that the U.S. system is dysfunctional, but I also think it is
a splendid success that should be widely copied.
shall comment respectively on: 1) the world scene today; 2) the undeniable
success story of the U.S. Constitution; 3) the reasons why I do not agree with you that the
Constitution is dysfunctional; and 4) some reforms, which would make the
Constitution work better.
The World Scene in 2019
must begin by stating a preference for the most populous and territorially
large democratically self-governing polities possible.
would eventually like to see the emergence of a weak global federal democracy
of the G-20 constitutional democracies i.e.: 1) the United States; 2) the
United Kingdom; 3) France; 4) Germany; 5) Japan; 6) Italy; 7) India; 8) Canada;
9) Australia; 10) South Korea; 11) Brazil; 12) South Africa; 13) Indonesia; 14)
Mexico; and 15) the European Union.
believe populous and territorially large democracies will accomplish four
they will reap huge economies of scale in running: 1) an international Space
Station and Lunar and Mars exploration function; 2) they will reap huge
economies of scale in running an international ballistic missile defense
against militant oligarchies like China and Russia and an effective regime for
ending terrorism from the Middle East; and 3) they will reap huge economies of
scale in setting up airports, highways, internet systems and other great public
works and in facilitating global commerce.
I believe a G-15 federal government could redistribute wealth globally whereas
the current system lead to races to the bottom and to a host of collective
action problems in dealing with races to the bottom in redistributing wealth;
and races to the bottom in overfishing of the seas; in energy production; and collective
action problems hindering the development of missiles to destroy dangerous
asteroids, which might collide with our planet.
I believe a G-15 federal government could address problems like Global Warming;
air and water pollution and trash in space in low earth space orbit. Nations today generate negative externalities
for one another in the form of excess carbon dioxide production, which a global
federation might stop.
I believe a G-15 federal government would be more protective of individual
human rights than are the current separate nation states essentially for the
reasons James Madison expounds in Federalist
10. Expand the polity; and you
increase the number of small interest groups.
As you do so, they likelihood that one interest group will ride
roughshod over the others goes way down.
course, there are powerful reasons to keep a Global G-20 Democratic Government
federal and limited in powers. First,
the fifteen nation states have different cultures, traditions, tastes
preferences, and they face different unique problems. Second, one might want the 15 nation states
in a United States of the world competing
with one another by experimenting with
different economic, social, and cultural policies for the allegiance of
citizens and businesses. Third, it is
easier and less costly for voters to monitor nation state governments than a
Global Federal Government. For this
reason as well, power should be decentralized.
striking feature of this book is its epistolary structure, which is unusual in
constitutional law books, to say the least. Unlike a monograph, which presents
itself as a final judgment by an impersonal expert about a matter firmly in the
past, a group of letters suggests a process of learning by fallible humans over
time. The structure creates opportunities for presenting ideas in an engaging
way, but also expectations in the reader. First, that the authors will exhibit
candor. They are old friends, and they are writing for each other, not for the
world, even if they know that the world will eventually peak over their
shoulders. Second, the authors will learn over time by testing their ideas
against events as they unfold. And, third, the authors will learn from each
other—perhaps, starting from divergent perspectives but then drawing closer
together, or the opposite. I suspect that Jack and Sandy sought to invoke these
expectations because they realized—even before the election of Trump, and in
this respect they deserve congratulations for their prescience—that the
volatility of American politics threw traditional constitutional assumptions
into doubt. A constitutional treatise at such a time, like a “history of the
present,” is a self-contradiction because finality is impossible in the midst
of flux, and impersonality—never very credible even in the best of times—is unsustainable
when one feels threatened by political developments thought (in some circles)
to herald civil disorder or dictatorship.
book doesn’t always satisfy these expectations. One problem is that Jack and
Sandy don’t disagree about much—much less than one would expect from even
like-minded people when the political system is constantly tossing out
surprises. Yes, each has a theory he flogs, and each politely expresses modest doubts
about the other’s theory. Sandy’s is that the (written) Constitution is undemocratic
and dysfunctional, and too hard to change, while Jack sees virtue in some of
the Constitution’s restrictions, and thinks that constitutional change can take
place in various small-c ways—though courts, legislatures, evolving political
norms, and so on—and can even do so in a way adequate to our political needs.
Other than that, the authors are—as far as the book reveals—virtually identical
in terms of politics, constitutional views, and political and cultural sensibility.
As I read through the letters, I came to think of a single “Balkinson” as the
implied author of the book, a left-of-center constitutional theorist whose internal
dialogue about the current political dysfunction varies between psychological
states rather than theoretical positions—a theorist reasoning his way out of a
panic attack. It would have been nice to read an epistolary constitutional law
book in which Balkinson corresponded with a full-blooded conservative
Trump-supporting constitutional theorist (if there is such a thing). Where is
Naphta to Balkinson’s Settembrini?
authors don’t disagree much, the reader doesn’t sense that either learns from
the other. Nor do the dramatic political events they witness seem to cause them
to reconsider their views. In Sandy’s last letter, he asks what he has learned
over the previous two years, and what he tells us he learned—that we live in a
constitutional dictatorship of sorts, that the 1787 constitutional structures
have caused our political dysfunction, that the constitution is in crisis, and
that the diversity of the U.S. population portends trouble as well—is not much
different from his claims in earlier writings. Jack’s concluding reform
proposals—all of them sensible—could have been (and were) made long before
Trump was elected. The rise of Trumpism, predicted by neither the authors nor
anyone else, turns out merely to confirm their prior beliefs.
The Balkin-Levinson dialogue is a model of academic conversation: two learned scholars of constitutional law, reasoning together on some of the deepest problems the topic poses. But it is also a debate, intended to shape ongoing public debates with the highest stakes. This debate pivots on dueling metaphors for contemporary crises of American constitutional legitimacy. Levinson, self-describedly “semi-apocalyptic” at one point, suggests the US is in or near a constitutional crisis. Balkin instead diagnoses “constitutional rot.”
In an earlier article, both Balkin and Levinson defined crisis as:
[A] potentially decisive turning point in the direction of the constitutional order, a moment at which the order threatens to break down, just as the body does in a medical crisis. It may lead back to a slightly altered status quo, that is, a crisis averted. The fever provoking a medical crisis breaks, and the patient returns to her prior condition little the worse for wear. On the other hand, the conclusion of a crisis may indeed be an important transformation in the forms and practices of power or, in the most extreme cases, the dissolution of the existing constitutional order and the creation of a new order in its place. The ultimate medical crisis, after all, is death, as demonstrated most spectacularly in our lifetime by the demise of the Union of Soviet Socialist Republics or the dissolution of Yugoslavia....
They go on to distinguish emergencies (“perceptions of urgency caused by facts on the ground or by the way that people perceive those facts”) from constitutional crises (“conflicts about the legitimate uses of power by persons or institutions”).
Trump won the 2016 Republican nomination, limits, along with their metaphorical
cousin, guardrails, have dominated the discourse among a certain set of Trump
critics. First, observers asked how Trump had won the nomination in the first
place, in light of Republican elite opposition to his candidacy. Once Trump was
elected, questions emerged about the power of institutions, formal and
informal, to hold off the worst tendencies of the new administration. The past
three years have been instructive, teaching us about the ability of our system
to thwart different kinds of attempts to disrupt it, the limits of those
limits, and about the ways in which our language for understanding politics
fails to adequately grasp the situation at hand. The epistolary format of Jack
Balkin and Sanford Levinson’s Democracy
and Dysfunction allows for the exploration of each of these ideas as they
are turned over in the heads of two leading law and politics scholars. Reading
their analysis allows us to contemplate three limits that have conceptual,
intellectual, and practical significance.
The limits of history
Balkin’s portions of the text attempt to place Trump in Stephen Skowronek’s political
time framework, identifying him (as I and others have also done) as a disjunctive president
whose election signals the close of the Reagan era. Understanding Trump this
way helps to make sense of his relationship with the Republican Party. It also suggests
some ways in which the Trump presidency might give rise to a different era in
politics. Perhaps some of the popularity of this thesis as a way to understand
Trump is that it provides something of a clear roadmap for how the country will
emerge. But the “constitutional rot” that the authors identify has challenged
the ability of would-be reconstructive actors to coalesce around key issues and
constituencies. On page 74, Balkin describes how the fragmented Constitutional
structure features institutions that “protect republicanism by continuously
generating a cadre of opponents to contest the dominant regime, and by giving
these opponents a stake in engaging in politics from within the system rather
than outside of it.”
statement helps to describe how reconstructive politics takes place. A new
regime does not automatically begin because a disjunctive administration
discredits the old one. Rather, building a new regime requires party building, development
of a governing vision and social movements. These elements are in place in 2019
to some extent. But the current era has some features that call into question
whether the reconstruction process will unfold as it has in the past. Weak parties exist alongside partisan polarization, which means that partisan
opposition to the Trump administration is vehement and angry, but the linkages between socialmovements
and the Democratic Party are more tenuous. Distrust of political parties remains an obstacle for the
development of a vibrant and organized electoral and governing coalition. Partisan divisions are also driven by attitudes
about race and immigration, and Democracy and Dysfunction also points out the ways in which the
current era breaks from the past in this regard. The authors point out Trump’s demagoguery and reliance on xenophobic appeals.
Racism and xenophobia are, unfortunately, better characterized as the historical norm, but the authors are correct
that they are deployed uniquely in contemporary politics, combined with both
negative partisanship and the current president’s periodic disregard for the rule of law and the values of democracy. We have both a president who is
distinct in history and an era in political time that differs from previous
ones in important structural ways. This combination points to the limits of
history as a clear set of instructions for what might happen next.
As a student of Steve
Skowronek and a scholar of conservatism, I’ve long agreed with one
of the arguments Jack Balkin presents and pursues in Democracy and
Dysfunction—that the Reagan regime is crumbling and we’re heading toward a
reconstructive presidency along the lines of realignments past. Like Balkin, I believe that
the administration of Donald Trump is better viewed as a disjunctive presidency,
similar to that of Jimmy Carter or Herbert Hoover, a symptom of the unraveling
conservative order rather than the opening bid of a new authoritarian populist regime
or consolidation of the existing Republican regime.
I’d like to use the opportunity of my deep agreement
with Balkin to explore one of the weaknesses of our shared position. As Balkin
notes, in disjunctive regimes, the dominant party coalition fractures. Tensions
held in check in the early days of the regime slacken during its end days;
factions once willing to compromise with each other on their path to power
(think of the fusionism that
fueled the modern conservative movement) now refuse to cede ground. Presidents
elected to manage these unruly forces face a difficult challenge. Desperate to
break out of the vise they’re in and sensing the regime’s time is up, disjunctive
presidents try to construct a new coalition, one less beholden to the existing
poohbahs and players in the party, based on new and unorthodox policies.
Carter, for example, pursued deregulation and tight money, courted evangelicals
and suburban professionals, and distanced himself from unions. But because the foundation
of disjunctive presidencies—the regime they were elected to manage rather than
maul—is so tenuous, disjunctive presidents often rush back to safe havens,
placating the party and its interests with goodies like a new Department of
Education. The combination of that push and pull, toward and away from the
party, antagonizes everyone, provoking a potent challenge not from the forces
of the new (such as Reagan’s bid to supplant Ford in 1976) but from defenders
of the faith. To wit: Teddy Kennedy’s primary challenge to Carter in 1980.
We haven’t seen that sort of challenge yet
under Trump. Bill Weld notwithstanding, it
seems likely we won’t. Nor have we seen the splintering of the party similar to
the crackup of the New Deal coalition in the 1970s. The question is: why?
In the spirit of.your lively new book, which consists of a series of letters exchanged between you from 2015 to 2018, I decided to write my symposium contribution as a letter to each of you. I think you both downplay a key part of our dismal politics and each make an important point that explains why we are so stuck.
One impression from reading your letters is that only the United States is suffering from political paralysis and dysfunction. This is, of course, not true. There is Brexit, the Yellow Vest protests in France, the rise of the far right in Germany, and much more. Overall, we are witnessing a global decline in constitutional democracy from the high tide of the 1990s. (In retrospect, the failure of the Arab Spring in 2011 was a turning point that new gave to hope to autocrats everywhere.)
If the United States is just one of many dysfunctional democracies, then that suggests that Sandy's focus on the hard-wired provisions of our Constitution as the source of our problems is incorrect. Other national constitutions with very different provisions are faring no better. Indeed, the most flexible constitution in the world--Britain's--is now producing dysfunction on an almost daily basis. Perhaps each of these constitutions suffers from independent stupidities. I would be curious to know Sandy's view on which country has the best constitution. Whom exactly should we be emulating?
The global scope of the problem, though, also poses a problem for Jack's argument that our dysfunction is a symptom of the transition between party systems that will work itself out. How probable is it that this same transition is going on in Europe at the same time? One point in Jack's favor is that Thatcherism arose in Britain at about the same time that the Reagan Revolution came to the United States. Couldn't Brexit and President Trump be connected in a similar way? Perhaps. But extending that trend to the rest of Europe (or to the world) is more of a stretch. Surely other countries are at different stages of their respective party systems and not all running on fumes.
That said, I think that Jack's diagnosis is largely correct. In part, that is because of my respect for Stephen Skowronek's work and my own scholarship on party system transitions in the United States. (In the 1820, the 1850s, and the 1890s.) They were all ugly in one way or another. Why should this one be different?
One reason it could be different, though, is Sandy's argument about some particular features of the Constitution that are prolonging the life of the Reagan coalition. The Electoral College is a major impediment to the rise of a new party system. It is quite possible that Donald Trump will be the first two-term president to never win the popular vote. Likewise, the Senate's rejection of one-person, one vote representation may (though not as clearly) give Republicans a significant structural advantage that is proving crucial with respect to judicial confirmations. I wonder, therefore, if Jack may be too optimistic that a new party system can overcome these obstacles in time to avert a more substantial crisis of legitimacy.
Your obedient servant,
P.S. In this age every successful project becomes a saga. I hope this book is the first of a trilogy.
In the afterword to the 2011
edition of Constitutional
Faithand in his 2012 book Framed: America’s
Fifty-One Constitutions and the Crisis of Governance, Sanford Levinson introduced a distinction between the
“Constitution of Settlement” and the “Constitution of Conversation.” The
Constitution of Settlement comprises those aspects of the Constitution that are
clear, well established, and resistant to creative interpretation: for example,
the two-senators-per-state rule. Precisely because they are seen as straightforward,
these provisions tend to be taken for granted. The Constitution of
Conversation, in contrast, comprises those aspects of the Constitution that are
sufficiently open-textured as to invite ongoing debate and litigation: for
example, the Equal Protection Clause. The distinction between the Constitution
of Settlement and the Constitution of Conversation has been embraced byscholarsfromdiversedisciplines and now features prominently in the celebrated
constitutional law casebook that Levinson coauthors.
From the moment he put forward this
“famous” distinction, Levinson has been an indefatigable critic of the
Constitution of Settlement. In scores of articles, blog posts, and books, he
has argued that its structural pillars—from the Electoral College to
congressional bicameralism to the apportionment of senators to the presidential
veto to the Senate filibuster to the requirement that the president be a
“natural born citizen”—violate basic principles of democracy and breedpolitical
dysfunction. Lawyers like to obsess over relatively indeterminate phrases such
as “cruel and unusual” or “due process.”
But it is the more prosaic terms of the Constitution of Settlement that demand
our attention, in Levinson’s telling, as these “static,
decidedly nonadaptive aspects” of the constitutional order are destroying any hope of
realizing “the magnificent vision” that the framers set forth in the Preamble. To
vindicate the Preamble’s promise today, Levinson asserts that nothing less than
a second constitutional convention is needed so that Americans can rewrite the
canonical document and resolve its foundational flaws.
Levinson’s letters in Democracy and Dysfunctionrepeatedly
return to this theme, with a Trumpian twist. The parts of the Constitution of
Settlement that make lawmaking so difficult, Levinson suggests, have created a
perpetual “crisis of governance,” which in turn creates a hospitable political
environment for a populist demagogue like Donald Trump. And as we all know, the
Electoral College allowed Trump to ascend to the White House even though
Hillary Clinton received millions more votes.
Responding to Levinson, Jack Balkin
contends that certain features of the Constitution of Settlement limit
President Trump’s ability to do lasting damage to the republic, for which we
should be grateful. Balkin further contends that the most serious defects in
our constitutional system can be remedied through subconstitutional measures,
such as a new federal statute allowing multimember districts for the House of
Representatives or a new interstate compact guaranteeing the presidency to the
candidate who receives the most votes nationwide. Holding a constitutional
convention, accordingly, would be unnecessary and unwise.
Balkin’s arguments about the
possibilities for constitutional reform under conditions of formal
unamendability gesture toward, and seek to advance, a phenomenon that I wish to
highlight: The Constitution of Settlement is becoming unsettled. Not in the
books, but in action. That is to say, many different features of Levinson’s
Constitution of Settlement no longer look as “static” as they used to, as growing levels of political
frustration and polarization have roused a growing number of actors to seek to
challenge or circumvent them without necessarily pursuing a constitutional
amendment. (The so-called New Deal Settlement regarding the scope and
distribution of federal government power is also becomingunsettled, at least around the edges, but that is another story.) An
appreciation of this phenomenon can help us to assess both Levinson’s thesis
and the state of contemporary constitutional politics.
Balkinization Symposium on Levinson and Balkin, Democracy and Dysfunction
This week at Balkinization we are hosting a symposium on Sandy's and my new book, Democracy and Dysfunction (University of Chicago Press, 2019).
We have assembled a terrific group of commentators, including Julia Azari (Marquette), Steve Calabresi (Northwestern), Steve Griffin (Tulane), Gerard Magliocca (Indiana), Frank Pasquale (Maryland), Eric Posner (Chicago), David Pozen (Columbia), Jed Purdy (Columbia), and Corey Robin (Brooklyn College/CUNY).
wanted to record the passing of my wonderful friend Frank Cross, a longtime
faculty member at the University of Texas, Austin.Other obituaries will recall that he was one
of the best (NDT) college debaters of the 1970s and a gifted teacher.I wish to highlight the tremendous loss to
academia and legal scholarship.Frank
contributed enormously by continually challenging himself.Already a UT faculty member, he embarked on a
course of study in statistics that transformed his work and gave us new
insights.He began an extraordinary run of
publication in leading law reviews with an article that questioned work that
downplayed the contribution of lawyers to the economy.He published many noteworthy books including Decision Making in the U.S. Courts of
Appeals (2007); Measuring Judicial
Activism (2009)(with Stefanie A. Lindquist); The Failed Promise of Originalism (2012); The Theory and Practice of Statutory Interpretation (2012); and Constitutions and Religious Freedom
(2015).Frank contributed as long as he
could.Robert Prentice, his friend on
the UT faculty, said in his obituary: “Frank bravely battled adrenoleukodystrophy
his entire adult life.This cruel
disease slowly robbed Frank of his ability to move, but never took away his
love of life or sense of humor.ALD
ultimately defeated Frank, but it did not define him.”Everyone who knew Frank will miss him.He had this rare gift: an independent mind and
an independent heart.
David Super ends his post, "The legislative filibuster is crucial in preserving" the republic of statutes. The language of preservation is the language of the status quo.
The implicit argument is this: Suppose we make it easier for progressive majorities to enact new statutes. Doing so will make it easier for conservative majorities -- when they exist -- to repeal existing statutes. And we have more to fear from the repeal of existing statutes than we have to gain from enacting new ones. This might not be the best of all possible worlds, but we've reached a state of affairs that's good enough, and we shouldn't try to make it better by means than threaten -- under some political conditions -- a regression from where we are.
I think the argument would benefit from unpacking. Super argues that repealing statutes is easier than enacting them in the first place. So, the thought appears to be, if progressive Democrats eliminate the legislative filibuster and enact new laws (to extend our democracy, to protect against climate disaster, whatever), Republicans will be able to repeal the new laws easily enough.
Formally speaking, that's true when appropriate conditions hold. Here the key condition is that Republicans would have to regain control of the Presidency and the House of Representatives as well as the Senate. As long as Democrats control one elected branch they can block repeal. At the very least this means that legislation enacted after the hypothesized elimination of the legislative filibuster would be on the books for up to four years before repeal. And, as political scientists know, new policies make new politics. That is, during those three or four years the statutes might generate sufficient support to allow Democrats to retain control of one elected branch for an additional period (two or more additional years). So, retaining the filibuster doesn't mean merely protecting existing statutes against repeal when Republicans return to power in all three elected branches; it means forgoing whatever political benefits might accrue from enacting the progressive Democratic agenda when Democrats have the chance to do so.
The supposed asymmetry between enactment and repeal may not be as great as Super says. Consider Obamacare repeal. Even without the filibuster the Senate under Republican control was unable to get a majority for repeal. Super suggests that in a world without a legislative filibuster Republicans might have been able to present Obamacare repeal outside the reconciliation process and somehow have gotten a majority to support a free-standing repeal statute. I can imagine a sort of seven-dimensional chess game in which that might happen, but I'd like to see a more detailed analysis of how and why it would.
What of the fact that the Republican Senate didn't repeal the legislative filibuster when it had the chance? My view is that it didn't do so because Republican leaders thought that they could accomplish their priorities without doing so. They got tax cuts for the wealthy and judicial nominations by using procedures not subject to filibuster, and they thought -- mistakenly -- that they could do the same for Obamacare repeal. Those were their priorities and that's why they didn't change the filibuster rule. That choice tells us almost nothing about what Republican leaders would do in a world where their ability to accomplish their most pressing legislative goals was blocked solely by the existence of the legislative filibuster (and not, for example, by the existence of a Democratic majority in the House of Representatives).
(I put aside the so-called deconstruction of the administrative state, much of which can be accomplished by executive and judicial action. That is, Republicans can get a lot of deconstruction done without enacting new statutes, though they could have gotten more done by doing so. Which is to say, deconstructing the administrative state hasn't yet been a high legislative priority.)
I note finally that the core statutes of the "republic of statutes" -- civil rights legislation and environmental laws in particular -- might have been difficult to enact, but they have proved equally difficult to repeal. The technique of conservative choice with respect to those statutes has been judicial obstruction through narrowing interpretations and holdings of unconstitutionality. Which brings us back to the Court-packing question.
Warren Miller's 1959 science fiction novel A Canticle for Liebowitz describes a world taken over by the forces of irrationality. A small group of monks retreat to their abbey with a collection of books saved by Isaac Liebowitz, the last repository of rationalism. The monks study the books for centuries and sporadically re-enter the world in an always-futile hope to re-establish a well-functioning social order guided by science and reason.
Today many liberals who factor the Supreme Court into their political calculations are a lot like the"Order of Liebowitz" in the novel. They too have a group of texts, one that they take to be the true foundation of constitutional law -- scattered volumes of the U.S. Reports numbered 347 (Brown v. Board of Education), 410 (Roe v. Wade), 539 (Lawrence v. Texas), 576 (Obergefell), maybe one or two more.
From these volumes these liberals draw a picture of the Supreme Court as an institution defending minorities against oppression and protecting freedom of expression against unjustified government suppression. They then rely on this picture to worry about policy proposals that in their view would damage the Court's legitimacy -- and thereby, the inference is, weaken the Court's ability to fulfill these honorable functions.
Had the monks retained the full set of U.S. Reports, or even a decent random sample, they might draw a different picture, one in which the Court overall (not in every case, of course) has reinforced oppression of minorities and suppression of speech. There are brights spots in the picture. Notably, Seth Kreimer has ably shown that the Court has done a decent job of policing "village tyrants," local legislators and executive officials who go out of their way to oppress and suppress. But, the picture as a whole is pretty gloomy.
The current Supreme Court has obviously done a bang-up job of protecting Big Pharma and the Koch Brothers and their ilk against government oppression (Sorrell v. IMS Health, Citizens United), and of course Muslims against racist policies (Trump v. Hawaii). And it seems poised to read the Constitution to allow Republicans to adopt policies that entrench the Republican party in Congress and state legislatures while finding Democratic (and democratic) policies unconstitutional.
So, what's the net effect likely to be of weakening the Court's legitimacy? Perhaps (one can always hope) a reinvigoration of a liberal legislative politics about the Constitution's meaning.
Partisan Gerrymanders, the Census Case, and the Court's Legitimacy
When the question is whether the Court will police extreme partisan gerrymanders, certain Justices--most notably Chief Justice John Roberts--voice concerns about threats to the Court's public legitimacy if it is seen to be intervening in partisan politics and squandering its diffuse public support, even though policing extreme partisan gerrymanders would not systematically favor one political party over the other.
When the question is whether the Court will permit the Trump Administration to add a citizenship question to the census that will obviously benefit the Republican Party and harm the Democratic Party and that obviously has the purpose of causing that effect, those same Justices--again, most notably the Chief Justice--do not voice concerns about threats to the Court's public legitimacy if it is seen to be intervening in partisan politics and squandering its diffuse public support, even though permitting the census question will systematically favor one political party over the other.
Instead, at least judging from the recent oral argument in the census case, the Court seems poised to defer to the Trump administration by a vote of 5 Republican appointees to 4 Democratic appointees. The Court appears poised to do so based on the so-obvious-it's-insulting pretext that the Administration's reasons for adding the citizenship question are to enable it to better enforce the Voting Rights Act. No matter that nonpartisan experts conclude that adding the citizenship question will not enhance VRA enforcement; that the Trump Administration has shown little interest in VRA enforcement; and that the Court's conservatives are otherwise increasingly hostile to the longstanding doctrine that courts should defer to reasonable judgments by administrative agencies.
It is the cases in which the future fortunes of the two main political parties are at issue that the Justices should be most scrupulous about appearing--and actually being--nonpartisan. It is in such cases that they should avoid leaving every impression of really, really wanting to come out in favor of the interests of the party that appointed them and asking themselves only how they can best negotiate the legal materials and arguments in order to find the path of least resistance. It is in such cases that we all learn whether their robes only appear black but are really red or blue--whether they are simply judges or whether they are really Trump or Obama judges.
Talk is cheap. See, e.g., Bush v. Gore (2000). Posted
by Neil Siegel [link]
Wednesday, April 24, 2019
Census Sensibility: The narrowest, and simplest, way for the Court to resolve the census/citizenship case
The Supreme Court heard argument yesterday in No. 18-966, Department of Commerce v. New York, a case challenging Commerce Secretary Wilbur Ross's decision to add a citizenship question to the 2020 census form. Ross explained that he added the question, notwithstanding the fact that it would depress the response rate on the census, in order to provide the Department of Justice with more complete data to aid its enforcement of Second 2 of the the Voting Rights Act of 1965 (even though, as everyone knows, the Trump DOJ is uninterested in enforcing Section 2). The principal basis for the plaintiffs' challenge is that Ross's decision was arbitrary and capricious, in violation of Section 706(2)(A) of the Administrative Procedure Act. Most of the briefing and the oral argument in the case has been consumed by questions regarding the reasonableness (or arbitrariness) of Ross's assessments on both "ends" of the cost/benefit balance he purported to strike: (i) his conclusion that adding the citizenship question might not result in a substantial undercount of residents; and (ii) his conclusion that adding the citizenship question would provide DOJ with more and better data for VRA enforcement, even though the record evidence was virtually uncontradicted, and confirmed by the Census Bureau itself, that adding the question actually would, on the whole, impede the government's ability to accurately assess citizenship information for VRA purposes (see the ACLU Br. at 35-40 for the reasons why that's so). In my view the plaintiffs, and the district court, have demonstrated why both of these conclusions were arbitrary and capricious. But with one exception--an argument the government raises for the first time in its reply brief--those particular arguments, which are deeply dependent upon an extensive administrative record, are comprehensively addressed in many excellent briefs filed in the case, and don't need further exposition here. (The exception is with regard to an argument the SG makes about the first point, i.e., the Secretary's assessment of the possible undercount if he includes a citizenship question on the census form: In his Reply Brief (see p.14), the SG introduces the idea that the Census Bureau’s “nonresponse follow-up (NRFU) operations would substantially, even if not completely, mitigate any potential undercount as a result of [the anticipated] nonresponses”--in other words, that the increased nonresponse rate will not result in a substantial undercount. The district court found that the evidence was to the contrary, however (see para. 235); and, more to the point, Secretary Ross did not rely upon any such “NRFU mitigation” theory as part of the basis for his decision.) The point I'd like to stress here is simpler, and more straightforward: Even if the Justices are unsure about those two matters--or if some of them are inclined to think that Secretary Ross's assessments of those two empirical questions were reasonable--the Solicitor General's reply brief reveals why the Secretary's decision was nevertheless arbitrary and capricious. As the SG notes, Ross's decision purported to be the result of a cost-benefit analysis--weighing the harm of an undercount against the purported benefits of providing DOJ with additional citizenship information. Ross did not, however, limit himself to those two factors, standing alone; instead, he also considered a third factor--namely, that any undercount would be the result of unlawful conduct by individuals who choose not to submit their census information. (It's a misdemeanor to refuse to answer questions on the census form.) Indeed, the SG acknowledges that Ross's consideration of the unlawful nature of census respondents' conduct was decisive in how he struck the balance--it was the very reason he chose to subjugate the harm of the undercount to the alleged benefits of obtaining the citizenship data: "[T]he Secretary expressly acknowledged the possibility of an undercount," the SG writes in his reply brief (p.10), "yet [he] determined that because it would be the result of unlawful action, it was outweighed by the benefits of providing the Department of Justice (DOJ) more complete and accurate census citizenship data to aid enforcement of the Voting Rights Act of 1965 (VRA)." Accord id. at 15 ("Weighing these incommensurable factors requires a fundamentally normative policy judgment, and the Secretary explained that he gave greater weight to the benefits, in part because the costs were the result of unlawful conduct."). By taking into consideration the fact that the undercount would be the result of "unlawful" action--and especially by going so far as to decisively discountthe harm of the undercount for that reason--Ross acted arbitrarily and, especially, capriciously. As New York Solicitor General Barbara Underwood stated in the argument: "[The Secretary] said he could dismiss or discount any such effect because non-response is an illegal act. But that is an irrational and impermissible factor to consider on this question." Exactly so. Imagine, for instance, that in making a cost-benefit assessment about a possible automotive safety regulation, the National Highway Traffic Safety Administration discounted any safety benefits that would redound to the benefit of people who drive a few miles over the speed limit. [UPDATE: I overlooked that Chief Justice Roberts actually alluded to this hypo early in the argument, when the Solicitor General was emphasizing the unlawfulness of nonresponse for a different part of his argument (Article III standing): "I mean, it is true that if people go 60 miles an hour in a 55-mile-an-hour zone, that's unlawful," said Roberts. "But you wouldn't say that they're not going to do that in forming public policy."] Or imagine that the Food and Drug Administration decided to ignore the safety risks for a population that would foreseeably use a proposed drug unlawfully. Absent any reason to believe Congress would have intended the agency to account for such factors, it'd be arbitrary and capricious for the agency in question to consider them--let alone to give decisive weight to them--in its assessment. See Motor Vehicles Manufacturers Ass'n v. State Farm, 463 U.S. 29, 43 (1983) (“Normally, an agency rule would be arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider . . . ."); see also Train v. NRDC, 421 U.S. 60, 79 (1975) ("[T]he Agency is required to approve a state plan which provides for the timely attainment and subsequent maintenance of ambient air standards, and which also satisfies that section's other general requirements. The Act gives the Agency no authority to question the wisdom of a State's choices of emission limitations if they are part of a plan which satisfies the standards of [the statute]."). And there's no such indication of a contrary congressional intent here. To the contrary, as Justice Kavanaugh affirmed toward the end of the argument, it's a "good first principles point" that the purpose of the census is enumeration. Congress has not tasked the agency with counting only those residents who comply with the letter of the law--its job is to pursue an “actual Enumeration” of the "whole number of persons in each State,” U.S. Const. art. I, § 2, cl. 3, whether they are law-abiding or not, for the primary purpose of properly "apportioning political representation among the States.” Wisconsin v. City of New York, 517 U.S. 1, 24 (1996). See 13 U.S.C. § 141(b) (Secretary shall complete a "tabulation of total population by States"). There is nothing in the statute to suggest that the Secretary can, in effect, apply a moral judgment about nonresponders as a basis for discounting the need to include them in the enumeration. (Moreover, the costs of such discounting would fall largely upon the States and their law-abiding residents who respond to the census.) It follows, then, that when Secretary Ross chose to discount the harm of the undercount of persons who would choose not to respond to a census that includes a citizenship question--and certainly when he concluded that the undercount harm would be "outweighed by the benefits" of providing DOJ with citizenship data "because it would be the result of unlawful action"--that, in and of itself, rendered his decision "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." And that simple holding is all the Court needs to say in order to resolve this case. Posted
by Marty Lederman [link]