Wednesday, February 24, 2021

Defending Quadricameralism

David Super

     From ninth grade Civics on, we are taught that the U.S. federal government (and all but one of its states) relies on bicameralism.  Although arguably true to the constitutional text, this account is grossly oversimplified.  Just as the rise of political parties and other developments since the founding have transformed presidential elections, judicial nominations, and other aspects of our constitutional order, they also have transformed bicameralism into something considerably more complex. 

     For the vast majority of legislation, we have a quadricameral federal government, requiring four distinct consents to legislate.  Ordinary bills cannot pass without support from the House majority, the Senate majority, the Senate minority (to forego or shut down a filibuster), and the President.  On more routine matters, these bodies delegate authority to House committee and subcommittee chairs, Senate committee chairs, Senate committee ranking members, and staff in the White House and cabinet agencies, respectively.  True, neither the President nor the Senate minority may formally amend legislation as it moves through Congress, but both can and routinely do demand very specific changes in exchange for their support.  And legislation need not win majority support within the Senate minority the way it generally must within the other three “chambers.”  (House speakers and Senate majority leaders have become largely unwilling to allow legislation to the floor without majority approval of their caucuses; administrations can be of several minds, but presumably presidents ultimately pursue their own “majority” impulses.)  Still, increasing party discipline makes it increasingly difficult to peel off enough members of the Senate minority to obviate negotiating with its leadership.

     At a time when loyalties to party swamp those to branches of government or even to states, quadricameralism effectively ensures that the minority party will have at least one seat at the table when ordinary legislation is being enacted.  At a time when other checks and balances – persuadable moderates, entrenched governance norms, swing voters, and the courts – are far less effective, quadricameralism’s importance is difficult to overstate. 

     The Senate majority is the one “chamber” that is truly indispensable to enacting legislation.  Each of the others may be overridden under some circumstances, typically with extraordinary effort by the other bodies.  The House majority may be excluded if the President, the Senate majority and the Senate minority combine – with the participation of a foreign interlocutor – to exercise the treaty power.  This produces such a plethora of undesirable consequences that a custom has arisen of involving the House majority in treaty-making through the enactment of implementing legislation.  

     The President may be overridden if the Senate majority, the Senate minority, and the House majority combine – also recruiting part of the House minority – to override a presidential veto.  The dictates of party discipline make this avenue available only rarely and only on issues that are deeply controversial within the President’s own party. 

     The Senate minority may be excluded through a few extraordinary procedures allowing the Senate to act by a simple majority.  Approving military base closure reports, overriding proposed rescissions of appropriations, and abrogating recently promulgated regulations under the Congressional Review Act are three such procedures.  By far the most important, however, is budget reconciliation.  This process allows the House majority and the Senate majority to pass a budget resolution without the Senate minority (or the President) and then to implement that resolution through reconciliation legislation without the Senate minority (but with the President). 

     Just as the procedures for excluding the House majority or the President require arduous steps and an unusual degree of unity among the other three “chambers”, so too does the passage of reconciliation legislation without the Senate minority make extensive demands on the remaining bodies.  We therefore should not be surprised or dismayed that reconciliation procedures pose significant obstacles to enactment.  Without the Byrd Rule and other constraints on reconciliation bills, we would rapidly lose our quadricameral system of federal legislation. 

     As I write, the Senate majority and minority are embroiled in intense arguments before the Senate parliamentarian over which provisions can and cannot survive in the reconciliation bill to respond to the coronavirus.  They also are arguing over which amendments can and cannot be offered to it.  Unfavorable rulings often spark a hurried process of redrafting, pressing the Congressional Budget Office or the staff of the Joint Committee on Taxation to “score” (estimate the fiscal impact of) the revised version, and resubmitting the revised provision to the parliamentarian.  Consistent with the “checks and balances” model of constraining governmental power, three distinct non-partisan expert staffs – those of the parliamentarian, CBO, and JCT – combine to determine which provisions may move forward under these extraordinary procedures. 

     In one sense, this process is deleterious to traditional ideas of bicameralism.  The “Byrd bath” is consuming not just the Senate but also the House, which has been holding its version of the relief package until it has a clearer idea what the Senate parliamentarian will allow.  Among other risks, if the House bill contains “Byrd bait” that is stricken when the bill reaches the Senate, that chamber will have no formal role in crafting an alternative.  In addition, representatives from marginal districts do not want to cast difficult votes for doomed provisions.  Few Senate staffers know much about House rules unless they served there previously, but many House committees now have their own Byrd Rule experts.   

     From what I have heard so far, I disagree with some of the parliamentarian’s rulings.  Some important provisions may well fall out of the legislation, causing real harm.  I have seen no evidence, however, of partisan or ideological skew in her rulings, this time or in the past.  And by all accounts, she is hard-working and transparent about the bases of her rulings.  At a time when we have fewer and fewer genuinely persuadable people to adjudicate our disputes, her role and her integrity are extremely important.  Sidelining the Senate minority, like sidelining the House majority or the President, deserves serious attention as it marks a major departure from the quadricameral means of legislating that our laws and politics long have relied upon. 

     Of course, many progressives today are hostile to the very concept of quadricameralism, seeking to eliminate the filibuster.  A comprehensive response is a task for another day.  For now, I will note only that the past four years have demonstrated that tearing down is vastly easier than building up.  Without quadricameralism – specifically, without the Senate minority’s ability to block most legislation during President Trump’s first two years in office – many of the laws, agencies and programs that are vital to the progressive agenda might not now exist.  The task of rebuilding them likely would take much longer than a single presidential term – and might not be possible at all if the Democrats lose the mid-term elections, or certainly if they lose the White House in 2024.  Filibuster reform is for those with a deep envy of Sisyphus. 


Monday, February 22, 2021

Announcing the Journal of Free Speech Law


The new Journal of Free Speech Law, whose Editor-in-Chief is Eugene Volokh, is now accepting articles for review.  The journal is faculty-edited and the articles are selected by a distinguished group of law professors and jurists. Details here.

Friday, February 19, 2021

Preserving the University Press of Kansas

Gerard N. Magliocca

A few weeks ago, I received an email explaining that the University Press of Kansas is undergoing an audit that could lead to its closure. I received that email because I published a book with that Press, as others on this blog have. 

I just want to say how strongly I support the mission of the University Press of Kansas. They put out my first book, and in doing so took a chance on an unknown junior scholar. This sort of venue is vital for other junior scholars trying to make their mark. In addition, the Press has a wonderful catalog and expertise in many fields that would be lost with a closure. I hope that the audit will result in reforms that strengthen the financial position of the Press rather than a short-sighted decision to shut the whole thing down.

Tuesday, February 16, 2021

Bad Seeds and Tips of the Iceberg

Andrew Coan

Constitutional remedies for presidential misconduct must account for two broad types: bad seeds and tips of the iceberg. Bad seeds flout widely shared norms accepted across party lines. Tips of the iceberg engage in similar conduct but enjoy the enthusiastic support of their party, not despite but because of their pathological character. As this description implies, the distinction lies more in political context than in the two types of presidents themselves.

Bad seeds pose a serious but relatively tractable problem of constitutional design. Their pathological conduct is unrepresentative of their party and, eventually, repudiated by it. Bad seeds can therefore be removed or disqualified from office without great upset. No party feels disenfranchised because no party, in the end, supports a bad seed. 

Tips of the iceberg pose much greater difficulties. Their pathologies are not aberrations but reflections of their party’s core identity. Removing or disqualifying them from office effectively precludes their party from pursuing its goals through the electoral process. In an environment pervaded by negative polarization and viral misinformation, these thwarted political energies may well express themselves in violence. 

With the necessary caveats about stylized typologies, Richard Nixon was a bad seed. Donald Trump is the tip of an iceberg. Unsurprisingly, impeachment worked better for the former than the latter. 

Read more »

Everything You Wanted to Know about the drafting of Section 3

Mark Graber

 And the problems with translating 19th century concerns into solutions to contemporary problems.

Over at Just Security

Friday, February 12, 2021

The Definition of Insurrection

Gerard N. Magliocca

Bruce Castor, one of the ex-President's attorneys, argued today that what occurred on January 6th was not an insurrection. He said that insurrection is a legal term of art that is well understood and does not cover what occurred at the Capitol.

Frankly, I don't know what he's talking about. There are authorities here and there that you can say shed some light on what insurrection means, but there is no legal definition of that word that somehow excludes the events that are the subject of the impeachment. Plus, I'm pretty sure that the Framers of the Fourteenth Amendment did not think, as Castor said, that "taking over the TV stations" was part of an insurrection. 

Anti-Trump Conservatives: Form a Faction, not a Third Party


Several news organizations have reported that officials of former Republican Administrations opposed to Donald Trump's continuing influence in the Republican Party are considering forming a breakaway third party. In this post, I explain why forming an Anti-Trump faction within the Republican Party is more likely to be successful than forming a new center-right third party.

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Section Three Applies to Former Officials

Gerard N. Magliocca

A leading argument by Republican Senators is that they cannot convict the ex-President because he is an ex-President. Whatever you think of that argument, the same rationale does not apply to a concurrent resolution finding the ex-President ineligible to serve under Section Three of the 14th Amendment.

Section Three was widely applied to former federal officials. Any federal official who joined the Confederacy was rendered ineligible to serve again (without relief from Congress) under Section Three. All of these men were ex-federal officials in 1868 when the Fourteenth Amendment was ratified, as none of them (save a few given a waiver by Congress) were back serving in federal office by then. Accordingly, no Senator can say that he or she cannot express a view on Donald Trump's ineligibility under Section 3 because he is no longer in office. Likewise, a Senator could be consistent in voting not guilty but voting for a concurrent resolution that says Trump is ineligible under Section Three.

Thursday, February 11, 2021

Disqualification Won’t Keep Trump out of the White House

Guest Blogger

Tom Ginsburg

As the impeachment trial of Donald Trump proceeds, the House managers are arguing that disqualification from future office is critical for our democracy.  It is true that expressing condemnation of the Capitol riots is a worthy goal.  But keeping Trump out of office will not keep him out of politics, and it won’t even keep him out of the White House. Trumpism is alive and well in the grassroots of the Republican party, and likely to remain so for the foreseeable future.

We have seen many leaders in other countries, especially populists, who have found ways to wield power from behind the throne without formal office.  In the early 2000s, for example, Jaroslaw Kaczyński served as Prime Minister of Poland while his brother was President.  After his brother died in a plane crash, Kaczyński ran for the Presidency and lost. But he remains the most powerful person in the Law and Justice Party, and in 2015, engineered a massive victory, with Andrzej Duda winning the presidency. Some refer to Kaczyński by the informal title of “Chief of State” even though he has only been an ordinary member of parliament for most of this time.

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Overlegalization, Impeachment and Verbs

Mark Graber

The extent to which impeachment risks being overlegalized can be assessed by the verbs people use when describing former President Trump's behavior and the standards for impeachment. The evidence is clear that President Trump caused, encouraged, provoked, and supported the insurrection of January 6. "Inspired," "emboldened," and "facilitated" also come to mind. Wordsmith's could not doubt come up with at least ten other verbs that no one questions accurate capture Trump's responsibility for January 6. Putting aside technical questions of American constitutional law, any sane person would want to impeach a president who, despite being the chief law enforcement official of the United States, caused, encouraged, provoked or supported an insurrection. We would fire a police officer who while on the job caused, encouraged, provoked and supported an insurrection. Same for the president.

"Incitement" is, at least in constitutional law, a technical legal term that is designed to protect private speakers who have no law enforcement responsibilities. The soapbox orator is free to say "something ought to be done to prevent Congress from [whatever] in part because the soapbox orator is not constitutionally charged with protecting Congress when Congress does whatever. Proving incitement under the First Amendment is and ought to be very, very difficult. Whether the House managers who are demonstrating beyond a reasonable doubt causing, encouraging, provoking, and supporting will prove inciting as inciting is defined in the First Amendment is not entirely clear, though they are doing a good job. But no sane regime would demand incitement when causing, encouraging, providing and supporting an insurrection are clear.

Wednesday, February 10, 2021

How Coronavirus Disaster Relief Will Move Through Congress, Part II

David Super

     Following up on my discussion of the congressional budget resolution last week, this post charts the path that the President’s coronavirus relief legislation is likely to take as it moves toward enactment. 

     Last week, Congress approved the budget resolution very much as planned.  The House passed it along party lines with no amendments permitted.  The Senate rejected amendments that could have changed the course of the subsequent reconciliation bill, also on party-line votes.  The Senate did accept non-binding messaging amendments endorsing a long list of causes:  sending aid to bars and restaurants affected by the pandemic; preventing tax increases on small businesses; strengthening extra-territorial tax collections; targeting relief to people affected by COVID-19; supporting schools in areas losing revenues because of the President’s oil and gas leasing moratoria; strengthening the Provider Relief Fund; stepping up interventions against sexual assault, family violence, domestic violence, dating violence, and child abuse; supporting the hospitality, convention, trade-show, entertainment, tourism, and travel industries and their workers; keeping the U.S. embassy in Jerusalem; increasing the federal minimum wage; funding a variety of police activities; providing on-line information about how coronavirus relief funds are spent; improving the solvency of federal trust funds; entrenching certain environmental and water policies; discouraging state and local recipients of coronavirus relief funds from discriminating against houses of worship; preventing the U.S. from becoming more dependent for energy on countries with weaker labor or environmental standards; expanding health savings accounts; and fully inspecting every partridge found in any pear tree.  Although several of these propositions may have little support within the Democratic caucus, Members recognized that they are completely non-binding and declined to be side-tracked into purely symbolic battles over them. 

     The House reconvened and ratified the Senate’s meaningless changes to expedite the process without going to conference.  As a concurrent resolution that affects only Congress’s internal rules, it did not require the President’s signature. 

     With the budget resolution in place, committees that received reconciliation instructions are free to start working on reconciliation bills.  With Senate floor time largely occupied for the next week or so with President Trump’s impeachment trial and the confirmation of senior Biden appointees, action is beginning in the House.  The drafts House committees are releasing were, however, drafted in close consultation with their Senate counterparts.  The complexity of this legislation may make a conference committee inevitable, but the Democratic leadership of both chambers is exerting strong pressure on the committees to minimize House-Senate differences as the bills move forward. 

     Consistent with the desire to save Members from taking difficult-but-unnecessary votes, such as those in prior congresses on environmental and immigration measures that had little chance of bicameral success, the Leadership and committee chairs are consulting closely with the various wings of the party as they craft their bills.  Indeed, they did so prior to releasing their budget resolution, which was crafted to fit a fairly precise vision of what the final legislation would do. 

     Departing from the past practices of both parties when crafting major legislation of this kind, the Leadership and committees are giving a hard “no” to many popular proposals being pushed on them.  Prior Democratic reconciliation bills have come close to exploding when leaders allowed groups with irreconcilable demands to think that they still had a chance until late in the process.  The Republican 2017 tax cut bill similarly almost collapsed – and ended up having to include some deeply unpopular tax increases to free up money to meet the demands of the various business lobbies to whom they had made commitments.  Although I am disappointed at some of the ideas the Leadership has nixed, I am hopeful that this indicates the leaders are being similarly straightforward with other interests and staying on course to craft a bill they can enact quickly (and without the wrenching choices at the end that come from over-promising).    

     In accommodating competing demands over what can go into this legislation, the Democrats are aided immensely by the availability of a second reconciliation process over the summer.  That legislation, which Democrats can trigger by passing a budget resolution for federal fiscal year 2022 in the spring, seems likely to carry more policies not as closely tied to the current crisis.  Thus, when the leaders rule out particular proposals for the present reconciliation bill, their message can be “not now” rather than “not ever.” 

     With paper-thin margins in both chambers, securing the support of moderates is crucial to the legislation’s success.  Media accounts have focused overwhelmingly on Sen. Joe Manchin (D-WV).  This is somewhat misguided.  Although Sen. Manchin probably is the most conservative Democratic senator, and has certainly rejected some proposals, he is by no means Congress’s only moderate Democrat.  Representing, as he does, a very red state, media coverage of other Democrats’ frustration with him will actually benefit him electorally.  He has no risk of a primary as everyone knows he is the only Democrat his state will elect to the Senate for the foreseeable future.  Other moderates, on the other hand, seek to avoid policies that they see as electoral liabilities while not alienating any of the Democratic factions they need to hold together to win re-election.  Having Sen. Manchin appear as “Dr. No” benefits everyone.

     Although the Leadership has maintained strict confidentiality concerning these consultations to avoid getting Members entrenched in mutually incompatible positions, there is no reason to believe that Sen. Manchin has obstructed efforts to get aid to those harmed by the current economic downturn.  Indeed, because he has plenty of such people in West Virginia, he has sought to strengthen those parts of the package.  He and the other moderates are likely to become more cautious as the discussion veers from economic relief and public health measures.

     Once the Senate finishes former President Trump’s impeachment trial, those of its committees that received reconciliation instructions will begin to release drafts of, and vote on, their reconciliation legislation.  When they are done, they will send both legislative language and report content to the Budget Committee.  The Budget Committee then will knit them together into a unified reconciliation bill and a single committee report.  The Budget Committee has no authority to edit any of what the committees send it, although if another committee were to fail to comply with its reconciliation instruction (unlikely in this context), Senate Budget Chair Bernie Sanders would be expected to offer an amendment on the Senate floor to bring that committee’s title of the reconciliation bill into line with budget resolution.

     The Budget Committee’s sending the reconciliation instruction to the Senate floor will trigger twenty hours of debate.  It also initiate a “Byrd bath” in which Republicans try to persuade the parliamentarian that one or another provision of the reconciliation bill violates the strict limits on what content may move through the expedited reconciliation procedures.  Provisions that put a committee over its spending ceilings (or under its revenue floor) as specified in the budget resolution are subject to points of order.  So are provisions that either lack any budgetary impact at all or that only have budgetary effect that is “merely incidental” to a larger non-budgetary purpose.  For example, increasing penalties for carrying an automatic weapon in the Capitol building might result in somewhat higher fine revenues, but that money would be merely incidental to the non-fiscal desire to banish those weapons from the seat of government. 

     Once the reconciliation bill is on the floor, senators may offer amendments, subject to much harsher requirements of germaneness than the Senate usually applies.  Amendments may change numbers or strike provisions altogether but generally may not bring new ideas into the legislation.  Amendments, like the underlying bill, are subject to the Byrd Rule.

     Typically, senators will refrain from bringing their amendments to a vote until the permissible twenty hours of debate have expired.  From then on, each amendment customarily will be allowed one or two minutes of debate before senators must vote.  This “vote-a-rama” is a superb mechanism for adopting ill-considered policies with seductive soundbites.   

     If the Senate bill survives the committee process and vote-a-rama relatively intact, the House may simply pass it.  If, as is more likely, Republicans successfully insert one or more unwelcome provisions, the legislation will have to go to a conference committee.  Even if the prospective conferees are prepared to move quickly – indeed, even if Democrats negotiate an agreement within hours after Senate passage – the process of agreeing to go to conference, approving committee leaders as conferees, and then receiving and bringing up a conference agreement takes a fair amount of time.  Those steps may prove necessary, however, to secure the immunity from amendment in the Senate that conference reports enjoy. 

     Two other potential issues hover over the coronavirus relief bill.  First, the Byrd Rule prohibits legislation that would increase the deficit in any year beyond the budget “window” covered by the budget resolution (in this case, ten years).  That was no problem for the Affordable Care Act, which was more than fully paid-for in both the near-term and the long-term.  It does, however, limit the budget resolution’s ability to license deficit increases.  This restriction is why many of the major tax cuts in Republicans’ 2001, 2003, and 2017 bills had to expire prior to the end of their ten-year budgetary windows.  Although the pending coronavirus relief legislation is not paid-for, it is intended to focus on immediate responses to this crisis.  Short-term, fast-expiring legislative changes should not raise the deficit beyond the ten-year window.  On the other hand, any permanent changes to the decrepit unemployment compensation system or other steps to prepare for the next economic downturn might have to include expiration dates.

     The other shadow looming over the relief bill comes from statutory rules enforcing the “pay-as-you-go” principle.  These rules do not prevent consideration or passage of deficit-increasing legislation, but they do require the Office of Management and Budget (OMB) to eliminate the resulting deficit increase by imposing automatic spending cuts.  Some programs targeting low-income people are exempt from sequestration cuts; others are not.  Medicare and farm price supports would take heavy hits.  Neither the budget resolution nor reconciliation rules prevent a pay-go sequestration, and the Byrd Rule prohibits including any changes to budget process rules, such as suspending a future sequestration, in reconciliation bills. 

     Democrats have several options here.  They could include a waiver of pay-go sequestration in the reconciliation bill and dare Republicans to raise a point of order, noting that the only consequence of such an objection succeeding would be to force cuts in Medicare and farm programs.  Democrats also could include a pay-go waiver in another bill and, again, dare Republicans to block it when doing so would only force unpopular sequestration cuts.  This is what Republicans did to avoid the staggering sequestrations that would have resulted from their 2001 and 2017 tax cuts.  Democrats predictably acquiesced once the tax cuts were law.  One of the appropriations bills for next fiscal year might well be a convenient vehicle for pay-go waivers to cover this legislation (and perhaps the additional reconciliation bill expected to move this summer).  If Republicans blocked that, they would trigger both a partial government shutdown and deep automatic cuts in popular programs. 


Tuesday, February 09, 2021

Impeachment and bullshit

Andrew Koppelman

 Almost all Republican Senators – 45 out of 50 – agree with Donald Trump’s lawyers that it would be unconstitutional to impeach Donald Trump after he has left office.  The legal claim is weak, but it is mighty convenient.  It gives them an excuse (a weak one, as I’ll explain) for voting to acquit without having to take any position on whether his incitement of the riot of January 6, and his bland, passive indifference as his devoted followers spread death and destruction, were impeachable offenses.  The constitutional claim is being carefully debated, but it should not be taken seriously.  That is because the members themselves clearly do not take it seriously.  They don’t care whether it is sound, and their reasons for embracing it have nothing to do with its soundness.  It is, if one may use a precise technical term, bullshit. 

The philosopher Harry Frankfurt, in his now-classic essay On Bullshit, defines the term to mean words uttered with indifference to their truth.  “It is just this lack of connection to a concern with truth—this indifference to how things really are—that I regard as the essence of bullshit.”  The bullshitter, Frankfurt observes, “does not care whether the things he says describe reality correctly. He just picks them out, or makes them up, to suit his purpose.”  He “does not reject the authority of the truth, as the liar does, and oppose himself to it. He pays no attention to it at all. By virtue of this, bullshit is a greater enemy of the truth than lies are.” 

On January 26, Senator Rand Paul forced a vote on his objection to Trump’s trial, claiming that a President cannot constitutionally be impeached after he leaves office.  He was supported by 45 Republicans, leading many to think that there is no chance that Trump can be convicted by the required two-thirds majority (which would mean that 17 Republicans would have to vote to convict). 

After his motion failed, Paul tweeted: "45 Senators agreed that this sham of a 'trial' is unconstitutional. That is more than will be needed to acquit and to eventually end this partisan impeachment process. This 'trial' is dead on arrival in the Senate."  Senator Susan Collins, who voted against Paul’s motion, similarly told reporters, “it’s pretty obvious from the vote today that it is extraordinarily unlikely that the president will be convicted. Just do the math.”

 Both are presuming that a vote against constitutionality means a vote to acquit.  That makes no sense, if the Senators are concerned about the Constitution.  But the fact that Paul and Collins are probably right shows that the Constitution has nothing to do with what’s going on here.  The constitutional analysis is exactly the kind of bullshit that Frankfurt is talking about. 

Now that the Senate has resolved the constitutional question and decided it can go forward, the members, having been outvoted on the jurisdictional question, are obligated to accept that decision and considering Trump’s conduct on the merits.  Judges on appellate panels do that all the time.  They don’t get out of their duty to decide the case on the merits once it is properly placed before them.  Or, if they are immovably committed to the idea that the Senate trial is illegitimate, Senators can refuse to participate, and boycott the trial.  Of course, that would make conviction more likely, because the Constitution says that it requires “the Concurrence of two-thirds of the Members present.”  The fewer the members present, the lower the number needed to convict; just do the math.  But if you’ve got no authority to participate, then that’s not your concern, is it? 

Either of these options, however, would infuriate some part of the Republican party base, most of which loves Trump and the rest of which finds him sickening.  So Republican Senators need a rationalization for voting to acquit without taking any position at all on what Trump did. 

The claim that Congress can’t impeach a former president, which the Republicans have almost all rallied around, is actually pretty dubious.  The Constitution gives impeachment two functions, to remove a malefactor from office and to bar him from future office.  To confine it to only one of those functions is like saying that a claw hammer can only be used to pound nails, and mustn’t be used to pull them out again. 

But those who deploy the constitutional argument don’t care whether it is correct.  The point is to give legal cover to those who are acting from other motives, to give their actions a false sheen of conscientious legality.  The way you’ll know that they don’t take their own argument seriously will be if they use the constitutional objection as an excuse for voting to acquit Trump (as I confidently predict they will).  In that context, it’s not an argument at all.  It’s bullshit.



Monday, February 08, 2021

Trump v. Sasse

Gerard N. Magliocca

This could be the caption of a Supreme Court case decided in 2023 or 2024.

Even if Congress takes no action under Section Three of the Fourteenth Amendment, the issue of the former President's possible ineligibility under that provision will be raised if he runs again. Anyone else seeking the GOP nomination in 2024 could challenge Donald Trump's eligibility for the primary ballot, citing Section Three. The ensuing litigation would probably reach the Supreme Court from some state and would need to be decided before the party delegates start being allocated, lest there be chaos. While the Justices probably dread the prospect of such a case during a campaign, they may have no way out.

This is why it's so important for Congress to set up a fair process to adjudicate Section Three eligibility issues well in advance of the next election. And this is true even if Trump decides not to run. If Ted Cruz or Josh Hawley run instead, people will also challenge their eligibility under Section Three. (I would say those challenges would be without merit, but we will need a prompt resolution either way.) 

Sunday, February 07, 2021

Balkinization Symposium on Mary Ziegler, Abortion and the Law in America-- Collected Posts


Here are the collected posts for our Balkinization symposium on Mary Ziegler's book, Abortion and the Law in America: Roe v. Wade to the Present (Cambridge University Press, 2020).

Saturday, February 06, 2021

Clarifying Section Three of the Fourteenth Amendment

Gerard N. Magliocca

The Washington Post has a story out today that makes an error in describing the proposed use of Section Three against the former President. A Concurrent Resolution of Congress declaring Trump ineligible to serve again does not bar him from office. Such a resolution would only express Congress's view that he is ineligible, just as the Senate expressed its view in 2008 that John McCain was eligible to be President. In both cases, though, only a court can make the ultimate determination. A Concurrent Resolution would just be persuasive authority that a court could cite in favor of ineligibility.

When Section Three legislation and/or a concurrent resolution is introduced in Congress, I think all of this will become easier to understand and describe.  

Response to the Symposium on Abortion and the Law

Guest Blogger

For the Symposium on Mary Ziegler, Abortion and the Law in America: Roe v. Wade to the Present (Cambridge University Press, 2020).

Mary Ziegler

At what is undoubtedly a crucial point in the history of abortion law, I’m especially honored by the attention paid to my book, Abortion and the Law in America: Roe v. Wade to the Present (Cambridge 2020). Jack Balkin has brought together four brilliant contributors whose work in this field has influenced my own. I am grateful to Jack and to each of the contributors for such a rich discussion of my book.

In different ways, the commentaries on Abortion and the Law all grapple with questions that keep me up at night: how can historians write about a topic as divisive as abortion, especially after any consensus about the basic facts has broken down? What is—or should be—the relationship between history and advocacy?

Read more »

Thursday, February 04, 2021

Who May/Should Preside at Trump's Second Impeachment Trial?

Jason Mazzone

Vik Amar and I have a new essay on who may/should preside at the second impeachment trial of (former) President Trump. Senator Patrick Leahy? Or Vice President Kamala Harris? Or Senator Mazie Hirono? Or Chief Justice John Roberts after all? Read here

Constitutional Trench Warfare over Abortion

Mark Graber

For the Symposium on Mary Ziegler, Abortion and the Law in America: Roe v. Wade to the Present (Cambridge University Press, 2020).

Americans have engaged in constitutional trench warfare since the demise of the Warren Court.  For almost fifty years, progressives and conservatives have fought pitched battles over a wide range of constitutional issues with each side on most fronts gaining only a few feet of constitutional turf.  The exclusionary rule and Miranda warnings remain the law of the land, but they are now chocked with enough exceptions so that sophisticated police officers and prosecutors can usually find ways to admit the resulting incriminating evidence and confessions.  The number of religious monuments government can place or maintain on the public square has increased, but unadorned displays of the Ten Commandments are still out.  Lower federal courts battle, without help from the Supreme Court, over how dangerous a gun needs to be for that weapon to be subject to legislative bans.  Congress can tax people who do not buy health insurance, but cannot compel purchase.  Same sex marriage, campaign finance and, in the last year or so, free exercise are among the few subject matters in constitutional law in which either progressives or conservatives have made substantial gains.

Abortion and the Law in America: Roe v. Wade to the Present documents how this constitutional trench warfare has structured debates over abortion rights during the past fifty years.  Professor Mary Ziegler meticulously details how a debate Laurence Tribe once called “the clash of absolutes” has become bogged down in factual minutia about the “costs and benefits” of different abortion policies.  Although repeating “costs and benefits” what seems like two-hundred times in a two-hundred page book is overkill, Ziegler successfully drives her point home.  Pro-choice and pro-life forces continue to make appeals to broad principles of human flourishing and right.  Nevertheless, the daily arguments that now dominate abortion discourse are tied to very specific facts and very specific outcomes and concern the costs and benefits of different policies affecting the health of women, the status of the unborn, the public fisc, and religious freedom.  Supreme Court doctrine that once explored the balance between reproductive freedom and potential life now turns on whose testimony about abortion clinics is to be believed.  Americans at present often forego rights talk when discussing abortion, Ziegler correctly details, but contrary to common predictions foregoing or supplementing rights talk in favor of or with policy analysis has done nothing to diminish a debate marked by “hopeless polarization, personal hatreds, and political dysfunction.” (212).

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Congressional Declarations on Presidential Eligibility

Gerard N. Magliocca

One question that people are asking about applying Section Three of the Fourteenth Amendment to Donald Trump is whether there is any precedent for the Senate passing a resolution giving its opinion on the constitutional eligibility or ineligibility of a single person to be President. 

The answer is yes. In 2008, the Senate passed a resolution stating its opinion that John McCain was a Natural Born Citizen eligible to the President. (McCain was born in the Panama Canal Zone, which gave rise to claims that he was constitutional ineligible). The resolution, if you want to take a look, is S. Res. 511 (110th Congress).

If the Senate can declare its view that someone is eligible under the Constitution to be President, why can't the Senate declare its view that someone is ineligible under the Constitution?

Wednesday, February 03, 2021

Blaming the Wrong Rights

Guest Blogger

For the Symposium on Mary Ziegler, Abortion and the Law in America: Roe v. Wade to the Present (Cambridge University Press, 2020).

Laura Weinrib

Mary Ziegler’s Abortion and the Law in America is an impressive and important book. Expertly interweaving analysis of the social, political, and cultural contestation over abortion in the years since Roe v. Wade, it links debate about abortion regulation to such varied developments as declining confidence in medical professionals, the advent of no-fault divorce, the war on drugs, the rise of HMOs, and the ascent of neoliberalism. But the heart of the book is Ziegler’s distinction between rights-based arguments—a woman’s “right to choose” and a fetal “right to life”—and the workaday arguments about social policy that have dominated abortion litigation for the past few decades. At least since Planned Parenthood v. Casey, Ziegler explains, the “costs and benefits of both abortion and laws regulating it” have been at the “center of constitutional discourse” (119), and they have “splintered” the competing factions (56).

Ziegler’s core argument is that the clash over policy was just as divisive as the clash over rights. “Rather than illuminating possible common ground,” she tells us, “arguments about the policy costs and benefits of abortion made compromise even more unimaginable” (60). The two camps disagreed not only about the consequences of abortion, but also the “basic facts” (198); stymied by unhelpful medical and scientific research, antiabortion groups explicitly cultivated “the development of new sources for abortion data” to support their alternative understandings of the procedure (75). According to Ziegler, this trajectory was not inevitable. In the immediate aftermath of Roe, accommodation of opposing positions appeared attainable—a point that builds from Ziegler’s eye-opening 2015 book, After Roe: The Lost History of the Abortion Debate. But that moment of possibility was fleeting: “By the early 1980s, these middle ground solutions had come to seem politically impossible” (209). In Ziegler’s view, the culprit was neither Roe nor rights. Instead, it “reflected factors beyond the Court’s decision, including political party realignment and the rise of the Religious Right and the New Right.” Moreover, the Court’s doctrinal shift to “undue burden” analysis—which involved balancing the costs and benefits of abortion, and which moved the battleground from absolute protection or prohibition to incremental restrictions on access and funding—only exacerbated polarization. “The recent history of the abortion conflict gives us reason to be deeply skeptical of claims that overturning Roe will make the abortion battle less polarized,” Ziegler concludes.

Ziegler’s thesis is smart and provocative, if not entirely convincing. To begin with, Roe’s detractors have blamed the Court not simply for focusing on rights claims (though they have certainly criticized the particular privacy-based formulation it adopted), but for usurping the legislative process. Given that the debate over abortion regulation since Roe has remained in the courts and on constitutional terrain, Ziegler’s evaluation of the shift to policy arguments is not fully responsive to the counterfactual of judicial deference to state legislatures. What I want to explore here, though, is a different line of critique. Ziegler’s account appears to collapse the rights-policy distinction with opposing attitudes toward absolutism and incrementalism. Those who championed a fetal right to life or an unfettered right of women to choose were “absolutists,” on her telling, while those who pursued policy rationales were “incrementalists” or “pragmatists.” But rights claims can also be incrementalist. And speaking pragmatically, they can also be incredibly effective. Indeed, even as the antiabortion movement suspended its early efforts to inscribe a fetal right to life into the constitution (through judicial interpretation or constitutional amendment), it never gave up on a strong form of constitutional rights-claiming. It simply shifted to a different bucket of rights: rights to the free exercise of religion and freedom of speech. It pursued in particular a right to influence the political process through campaign spending and the election of sympathetic judges—an effort which attracted broader support than the right to life in the short term and which, aggressively implemented, had the potential to manufacture a new constitutional consensus on abortion in the long term. In my view, Ziegler is correct to reject the argument that Roe’s rights framework single-handedly undermined the possibility for durable and meaningful access to abortion, secured through the legislative process. But I think she’s too quick to reject the polarizing role that the judicial enforcement of constitutional rights claims has played. Roe’s critics, I want to suggest, have been blaming the wrong rights.

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