The sloppy Sixth Circuit

Andrew Koppelman

A federal court of appeals was so unsympathetic to a transgender student that it sloppily misstated what had happened in the case and gave faculty a broad license to mistreat minorities. I explain in a new piece at the American Prospect, here.

Appellate decisions are supposed to be based on a careful review of the record. I've criticized the substance of the Sixth Circuit's Meriwether decision elsewhere.  But this new piece points to something worse: professional incompetence.  The university lost, and doubtless will now have to settle for some significant sum of money, because the Court of Appeals carelessly misconstrued the facts, and angrily denounced the university for what it had not done. 

Posted 9:22 AM by Andrew Koppelman [link]

Nothing Was Inevitable

Guest Blogger

For the Symposium on Martin J. Sherwin, Gambling with Armageddon: Nuclear Roulette from Hiroshima to the Cuban Missile Crisis (Knopf, 2020).

Martin J. Sherwin

Many thanks to Professors Stephen Griffin, Sanford Levinson, Jeremi Suri, and Amanda L. Tyler for their generous comments and keen insights, and a special nod to Professor Jack Balkin for hosting this symposium. 

Gambling with Armageddon is divided into two books, the second of which focuses on the Cuban missile crisis.  Understandably it was the primary subject of the reviews.  But before addressing those reviews, I want to highlight some of the salient points in Book I that established the centrality of nuclear weapons and led directly to the crisis. After all, the overarching argument of Gambling – as the subtitle proclaims -- is that the crisis was the result of how (irresponsibly) nuclear weapons were seen, valued and used, initially by the United States, but also by the Soviet Union, during the seventeen years between 1945 and 1962.

It is worth emphasizing an obvious point to be certain that it is obvious to everyone.  The crisis of October 1962 was a missile crisis.  Initiated by Khrushchev, it was his response to his and Fidel Castro’s conviction that in the wake of the failed Bay of Pigs invasion of April 1961 the United States was planning to invade and overthrow Cuba’s Communist government.

Why Khrushchev chose to protect his ally with provocative strategic missiles is the central point of Book I.  There were less provocative ways to safeguard Castro’s government: officially admitting Cuba into the Warsaw Pact, creating a separate defense pact, deploying a large number of Soviet troops to Cuba to serve as a “tripwire,” announcing the deployment of tactical nuclear weapons to defend the island, or all of the above.

But Khrushchev chose to secretly deploy strategic missiles to Cuba, a provocative act that his most informed and trusted Presidium adviser, Anastas Mikoyan, warned him against.  The United States would not tolerate such a deployment, he insisted.  “We have to defend Cuba,” he said, “but with this approach we risk provoking an attack on them and losing everything.” [195]

Or gaining everything, in Khrushchev’s view.

Read more »
Posted 9:30 AM by Guest Blogger [link]

"United States Legal System" is a misnomer

Brian Tamanaha

A common belief, at least in advanced capitalist societies, is that state law is the supreme, unified, hierarchical, and exclusive legal order in society. This is the image of the monistic law state. As I demonstrate in Legal Pluralism Explained: History, Theory, Consequences, this widely held image is descriptively false, theoretically unsound, and normatively problematic. State legal systems are internally pluralistic and coexist with other forms of law that often are more immediately influential in relation to social behavior within communities. This is true across the Global South as well as in the United States and the European Union. Among various implications that bear on widely held beliefs about law, this analysis suggests that "United States legal system," when used to refer to a singular, organized whole, is a misnomer. 

Here is the book description: Legal pluralism involves the coexistence of multiple forms of law. This involves state law, international law, transnational law, customary law, religious law, indigenous law, and the law of distinct ethnic or cultural communities. Legal pluralism is a subject of discussion today in legal anthropology, legal sociology, legal history, postcolonial legal studies, women's rights and human rights, comparative law, international law, transnational law, European Union law, jurisprudence, and law and development scholarship. 

A great deal of confusion and theoretical disagreement surrounds discussions of legal pluralism—which this book aims to clarify and help resolve. Drawing on historical and contemporary studies—including the Medieval period, the Ottoman Empire, postcolonial societies, Native peoples, Jewish and Islamic law, Western state legal systems, transnational law, as well as others—it shows that the dominant image of the state with a unified legal system exercising a monopoly over law is, and has always been, false and misleading. State legal systems are internally pluralistic in various ways and multiple manifestations of law coexist in every society. This book explains the underlying reasons for and sources of legal pluralism, identifies its various consequences, uncovers its conceptual and normative implications, and resolves current theoretical disputes in ways that are useful for social scientists, theorists, and law and development scholars and practitioners.

Posted 3:43 PM by Brian Tamanaha [link]

Abuse as a constitutional right

Andrew Koppelman

Do teachers have the right to address their students with racial slurs? Is hostile environment harassment law unconstitutional? Those are among the alarming implications of the Sixth Circuit's decision in Meriwether v. Hartop.  I explain in a new column at The Hill, here.

Posted 6:30 PM by Andrew Koppelman [link]

Who should attend a Global Democracy Summit?

Guest Blogger

Tarunabh Khaitan

For the first time since 2001, there are more autocracies in the world than democracies. In 2019, 54% of the world’s population lived in a full-blown autocracy; 35% lived in democracies that were moving in the autocratic direction. This latter category included countries like Brazil, India, Poland, Ukraine, the Philippines, Turkey, and the United States. In just another year, by 2000, 68% of the world was living under authoritarianism, with V-Dem downgrading India—the world’s second most populous country—to an ‘electoral autocracy’.

Arresting the domestic as well as the global decline of democracy appears to be high on the Biden administration’s agenda. Biden has promised to host a Global Summit for Democracy in his first year in office. The declared agenda focusses on fighting corruption, resisting authoritarianism, and advancing human rights. Civil society groups that defend democracy will be offered a seat at the table, and technology companies will be rebuked for enabling authoritarian leaders. American governments have a history of outwardly preaching democracy while covertly propping dictators, so a jaded observer might expect little of substance to emerge from this conference. The difference, however, is that its host—along with the rest of the world—has just spent four years watching his predecessor fiendishly stress-test the mechanisms of constitutional democracy. Globally televised scenes of a mob ransacking the Capitol removed any doubt that American exceptionalism to democratic fragility is dead.

The official tasked with sending out the invites to the Democracy Summit will have quite the dilemma on her hands: does she invite leaders like Bolsonaro, Erdogan, or Duterte? On the one hand, the fate of democracy in their populous nations is too critical to leave them out of a Global Democracy Summit. Then again, these elected autocrats cannot be expected to sincerely debate a problem for which they are largely responsible. Opening up the invitation to non-state actors battling to save democracy is a good idea, but I would push the envelope further: any state attending the Summit must prove its democratic credentials by including its head of government and the leader of its largest opposition party in its official delegation. Either both of them (or their representatives) attend as the state’s official delegation, or neither does. If one of the two refuses to attend, the other may still attend as a representative of their political party, but not as that of the state. The idea is less crazy that it might seem at first.

Adam Przeworski, a professor of political science at NYU, aptly described a democracy as ‘a system in which parties lose elections.’ The ruling party in an authoritarian regime remains in power as long as the regime lasts. But in a democracy, the ruling dispensation must change frequently to reflect the contemporary will of the people. If its government becomes irreplaceable, a state is no longer democratic. Democracy has grown brittle in countries like India precisely because the ruling party has been entrenching itself in government, making it harder to vote it out of office. To qualify as a democracy, a state therefore must have at least two key centres of political power: a government of the day, and a government-in-waiting (embodied in the political opposition). Its moral demand that the current wielders of political power peacefully and voluntarily hand it over to their successors is the main reason why democracies are fragile, and need constant protection. It is time that international law and politics bolstered this unique and defining feature of democracies by allowing the domestic political opposition a seat and an independent voice at the diplomatic table, even if voting rights are reserved for the government of the day. There could not be a more apt forum to begin this recognition than a Global Democracy Summit.

Twentieth-century autocrats attacked democracy openly, shuttering newspapers and ordering tanks onto the streets of the capital. In our own time the assault has mostly been subtle and incremental. The goal appears to be a diminished and controlled political opposition that can continue to legitimize the regime as ‘democratic’, but with no genuine prospects of winning power. As its main targets, opposition leaders are best placed to explain the authoritarian playbook to the rest of the world. As distinctions between the ruling party, the government, and the state are blurred, opposition to the ruling party and the government is characterised as opposition to the state itself. Political difference and dissent are misdescribed as treason and sedition. Donald Trump, for example, accused Democratic Party members of treason for failing to applaud his State of the Union address. Similarly, India’s ruling party today openly boasts of its goal of an “India free of the Congress Party”, its main political rival. It is hard to believe that a generation ago, Prime Minister Narasimha Rao tasked the then Leader of Opposition (and future Prime Minister) Atal Bihari Vajpayee to lead India’s official delegation to the 1994 session of the UN Commission on Human Rights.

Both Rao and Vajpayee understood the import of what British constitutional practice calls ‘Her Majesty’s Loyal Opposition’. This quaint oxymoronic phrase recognises that while political parties currently out of government constitute an opposition to ministers, their loyalty to the democratic state (embodied, in the UK, by the monarch) must be presumed. The Leader of the Opposition in each House of the Indian Parliament has the statutory right to sit on the committee that appoints its Human Rights Commissioners. The British Leader of Opposition receives security briefings directly from its intelligence agencies.

Many constitutional democracies are moving away from a winner-takes-all model of electoral politics by vesting opposition parties in the legislature with a significant share in state power. After all, opposition members in a legislature are not ‘losers’, but elected representatives. In a democracy, the runner-up usually represents a significant portion of the people. Democracies are increasingly recognising that that should mean something.

Exercise of foreign policy, where other states are especially in need of assurances that a particular commitment is being undertaken by the state and not just its government of the day, is particularly apt for accommodating the democratic runner-up. The philosopher John Locke had characterised the power to determine a state’s international relations as the ‘federative’ function of the state, distinct from its three domestic functions (of execution, legislation, and adjudication). It is time to recognise that, at least for democracies, the federative function is best vested in a team of the winner and the runner-up of a democratic election. Their powers need not be equal—the need for coherence demands that any voting power may still be exercised by the winner alone. But there is no reason to deny at least a voice to the runner-up in international forums. If anything, this should make international negotiations more efficient—for, state parties to a negotiation will be better-off knowing if the future government of a given state may renege on a promise being made by the current government.

Opening up a Democracy Summit to a team comprising heads of government and their main opposition rivals is not just the right thing to do. It also resolves the pragmatic dilemma mentioned earlier. By inviting a bipartisan deputation from every democracy, the dilemma is shifted to the neo-autocrats: either they must refuse the joint invitation—and thereby acknowledge that their regime is no longer a proper democracy—or accede and implicitly recognize their main political rival as the loyal opposition.

International politics needs to recognise what constitutional democrats have learnt the hard way: a democracy knows no permanent winners, nor any permanent losers. On the global stage, it is best represented not only by those who rule today, but also by those who are likely to rule tomorrow. International relations needs to learn—from British constitutionalism—and recognise the indispensability of the loyal opposition for any democratic state.

Tarunabh Khaitan is the Vice Dean and the Professor of Public Law & Legal Theory at the Law Faculty, Oxford and Professor in Law at Melbourne Law School. You can reach him by e-mail at t.khaitan at unimelb.edu.au

 

Posted 9:30 AM by Guest Blogger [link]

STOP THE (NCAA) COUNT!

Mark Graber

 

Dear [Names withheld to protect the guilty]:

I demand to be paid as the real winner of your NCAA pool.  If the scores had been fairly tabulated and various frauds exposed, my predictions would have proven the most accurate.  Please do not let a combination of radical socialists, disloyal immigrants, and the cancel culture silence the correct count of the points scored during the 2021 national college basketball championship.  The evidence of my victory is irrefutable, particularly under evidentiary standards established by the former president, by which fantastical claims need only be alleged, but not documented or otherwise proven.

Oral Roberts over Ohio State (predicted to be in tonight’s final)?  Really?  I have been on the phone for hours with various officials demanding that they find evidence that stadium operators, no doubt under the influence of Alexandria Ocasio-Cortez, manipulated the scoreboard, adding at least six points to Oral Roberts, more than doubling their winning total.  In your final count, you should determine I correctly predicted the result of that game, and that Ohio State won every subsequent game until tonight’s final.

North Texas over Purdue?  Ha! I am sure Purdue lost at least a dozen points because the official scorer’s pen ran out of ink at a crucial point in the game.  I demand a recount to be done, following the precedent set by recent Georgia law, by my children, whose next trips will be paid for by my winnings.

UCLA in the Final Four?  Impossible!  Everybody knows that California is a haven for undocumented persons.  One study found that 22% of the immigrants to California are undocumented.  America’s tournament must be free from that stain.  If, following various proposals for federal spending, we  appropriate lower UCLA’s point totals by 22% to account for the impact of the undocumented on all activities in California, Brigham Young University from the ethnically pure state of Utah, as I predicted, wins their first round game against UCLA by a score of 62-58.

Syracuse over West Virginia? Excuse me! Basic principles require that all baskets count the same.  See Reynolds v. Sims (one basket/one point).  If we count all baskets equally, not discriminating as the biased scorers did, between foul shots (only counted as one point), ordinary baskets (counted as two points) and longer shots (three points!), West Virginia wins.

Abilene Christian over Texas (predicted to make the elite 8)?  No way!  I think we would all agree that no good Christian would ever take advantage of the abortion right.  But consider the following.  We know that good Christian women never have abortions.  We can therefore assume that Abilene would have fielded the same team had Roe v. Wade been decided correctly and Texas permitted to ban reproductive choice.  But among the hundreds of thousands of babies killed by the abortion regime in Texas since 1973, surely two or three of them would have found their way to the Texas basketball varsity and improved the performance of that team by at least five points.  Once we eliminate the baneful influence of Roe and legal abortion on college basketball, Texas beats Abilene Christian in the first round by a 57-53 score.

We need to reconsider Houston (predicted to get knocked out early) in the semi-finals.  Observers claim that the Cougars mailed it in after falling behind in the first half.  But mailed-in basketball efforts should count no more than mail in ballots.  Houston, therefore, should be considered to have forfeited all wins after the second round.

A fair count would replace Houston in the final four with Illinois, as I predicted.  Illinois is the land of Lincoln.  Lincoln was elected with a majority of the electoral college votes, even though he gained only 39.4% of the popular vote.  Remarkably, that is close to the percentage of the total points Illinois scored in their first round game against Loyola/Chicago, which they supposedly lost.  If, however, we properly use electoral college point scoring rather than total points scoring, and we break the Illinois v. Chicago/Loyola game into segments, overvaluing, as the electoral college does, those smaller segments of time in which Illinois outscored Loyola/Chicago, the electoral college points total of the game turns out to be Illinois 14, Loyola/Chicago 13.

Really good people will be assembling outside the arena in Indianapolis tonight demanding you stop the tournament, score the final as Gonzaga 87, Ohio State 81, and award me the relevant prize money.  I have urged them to stay strong, to do what is necessary to ensure fairness by my light, and to remember the good patriots of the Boston Tea Party, but this should not be construed as any complicity in any invasion of the basketball arena that members of my family without my knowledge have suggested to crucial protestors.  That the persons responsible for guarding the arena may be assigned other duties tonight is purely a coincidence.

I am not a sore loser.  Predicting UConn over Maryland was a mistake. Nevertheless, surely a reasonable person would think a UConn/Maryland matchup in the NCAA tournament was between the women’s teams.  A fair count would have given me at least partial credit given the UConn women went further than the Maryland women.  The ballot, by not specifying that this was a men’s matchup, further demonstrates how the 2021 NCAA basketball tournament pool was rigged against me.

 

 

Posted 9:23 AM by Mark Graber [link]

The Nuclear Military-Industrial Complex

Guest Blogger

For the Symposium on Martin J. Sherwin, Gambling with Armageddon: Nuclear Roulette from Hiroshima to the Cuban Missile Crisis (Knopf, 2020).

Jeremi Suri

If nuclear weapons were the most threatening disease of the Cold War, the Cuban Missile Crisis was the closest near-death experience. Martin Sherwin’s new book, Gambling with Armageddon, offers an alarming autopsy: “Crisis management was in the mix, but the indispensable ingredient was luck. Very good luck” (5).

            Sherwin elucidates the many pressures pointing toward war in October 1962: the U.S. military’s preparations for an invasion of Cuba, Soviet leader Nikita Khrushchev’s desire to challenge American dominance in the Western hemisphere, the belligerence of President Kennedy’s closest advisers, poor communications between the two superpowers, and, perhaps most dangerous, the limits on leaders’ control over their own nuclear forces.

Sherwin opens the book with his own experiences during the crisis as a U.S. Navy junior officer in an antisubmarine warfare training unit. Time and again, he returns to the presence of Soviet nuclear-armed submarines in the Caribbean, their brinksmanship with American surface ships, and the moments when theater commanders came close to firing their weapons. The most dangerous moment was perhaps on October 27, 1962 – the second-to-last day of the crisis – when a Soviet submarine commander, responding to American maneuvers, ordered an “urgent dive” and armed a nuclear torpedo for firing (27). Sherwin recounts how a second captain on the Soviet submarine countermanded the order shortly before launch.

The word “gambling” in the book’s title is crucial for the author’s analysis. Others have investigated the challenges of preventing nuclear Armageddon, but Sherwin’s seminal contribution is to explain that controlling the dangers was, in President Kennedy’s word, “impossible” (309). Sherwin’s meticulous and detailed narrative shows how close both sides came to sliding into war. Rejecting arguments about stability through nuclear deterrence, Sherwin concludes with a powerful pronouncement: “nuclear armaments create the perils they are deployed to prevent, but are of little use in resolving them” (469).

Read more »
Posted 9:00 AM by Guest Blogger [link]

Lawyers who should know better (San Diego edition)

Jason Mazzone

Via Paul Caron's blog, I saw this astonishing op-ed in the San Diego Union-Tribune, authored by presidents of three San Diego bar associations on the recent controversy at San Diego Law concerning a blog post by Professor Tom Smith on the origins of COVID-19. 

The three author-presidents, all lawyers themselves, write that they support San Diego Law students who have asserted Professor Smith's blog post, combined with other statements he has made in the past, creates a hostile learning environment. That's fine, I suppose. Individuals can express support on issues, even on issues as to which they might lack knowledge or expertise. 

But the op-ed very quickly takes some most un-lawyerly turns. 

First, the authors say, Professor Smith's post "echoes" certain "theories" about the origin of the virus that (unnamed) "people" hold because they are "seeking a culprit" for hardships. But, as the three authors surely know, other people holding theories have nothing to do with whether Professor Smith is creating a hostile learning environment or whether for other reasons a hostile environment exists at San Diego Law. 

Second, the three authors list recent acts of violence against Asian Americans in various parts of the country. These incidents, too, as the authors also must know, are not relevant to whether a hostile learning environment exists at San Diego Law. 

Third, the authors call on the law school to "conduct an open and transparent investigation, identifying those who are conducting it, what they are reviewing, and their conclusions and recommendations." Setting aside whether there really is anything to "investigate," that approach sounds fair enough. But then here are the very next sentences these three lawyers pen: "We urge the law school to accommodate students who find professor Smith’s views hostile by offering those currently enrolled in his classes alternative instructors or credits without penalty. Absent an apology for all of his statements and corrective action, we believe professor Smith should not teach compulsory classes and his statements should be disclosed to prospective students of the classes he does teach." In other words, we've already decided what the investigation must show so we can move right to punishment. 

Finally, don't miss the whopping distortion of hostile environment standards in the quoted sentences above: "... students who find Professor Smith's views hostile..." (emphases added). That's not remotely how it works.

Let's hope that the administrators at San Diego Law handling this matter can do much better. 

  

 

Posted 7:36 PM by Jason Mazzone [link]

The Cuban Missile Crisis Revealed

Stephen Griffin

For the Symposium on Martin J. Sherwin, Gambling with Armageddon: Nuclear Roulette from Hiroshima to the Cuban Missile Crisis (Knopf, 2020).

 Although Sherwin’s book provides several fascinating revelations in addition to the submarine incident, I will lay those aside to concentrate on its implications for the study of the presidency.  Sherwin highlights those features in his description of the book’s purpose: “How [Kennedy] freed himself from the conventional Cold War attitudes his advisers advocated—why he changed his mind and resisted initiating a military strike—is the central question of the Cuban missile crisis and the ultimate subject of this book.”  This arresting statement should command our most focused attention.

To put it another way, Sherwin gives us a lot to chew on.  The most unsettling observation Sherwin makes in his global assessment of the missile crisis is how much was left to chance.  In particular, neither Kennedy nor Khrushchev perceived until almost too late how little of the crisis was within their direct control.  And the potential stakes – destruction of both the U.S. and the Soviet Union, not to mention the rest of the human world – are difficult to properly come to grips with.  This is especially the case as President Kennedy repeatedly tangled with advisers who, in effect, wanted to put the United States in harm’s way.  Not for nothing does Sherwin name the part of the book on the crucial thirteen days, “Kennedy vs. ExComm, the Joint Chiefs of Staff, Khrushchev, and Castro.”  Kennedy thus had to contend with both foreign and domestic challenges.

Sherwin’s book should spur some rethinking of the role of the President in relation to his advisers, in relation to the military, and the relation of these last two supposed presidential agents to Congress.  I say “supposed” because at several crucial points in the events leading to the crisis and, in fact, during the crisis, agents of the executive branch acted more as independent instigators rather than subordinates.  The CIA’s all-too-easy assumption about the Bay of Pigs operation that Kennedy would have no choice but to make a full military commitment is well known.  Less well known is the pervasive assumption among the military that Castro’s very existence was a ideological (not existential) threat that the crisis offered the perfect opportunity to solve.  Well, not!  As scholars showed earlier and Sherwin reminds us, Soviet troops in Cuba had not only intermediate range nuclear missiles to deter attack, but battlefield nuclear weapons that could have easily been used against a U.S. invasion.  The result could easily have been not only mass casualties on both sides, but the permanent denudation and contamination of the entire island.

Sherwin’s book prompts me to reconsider the role of nuclear weapons in remaking constitutional relationships, not only within the executive branch, but between the branches.  I didn’t develop this role in my book on war powers, Long Wars and the Constitution, because I didn’t see evidence that these weapons played a unique role in increasing presidential power after World War II.  As Sherwin notes provocatively at one point, however, it is not just that Congress was not informed of various postwar covert operations, including the Bay of Pigs.  Not sharing information with Congress goes back to the establishment of the Manhattan Project.  Congress was dealt out of nuclear decision making from the very beginning.  Some decisions made by subsequent presidents, such as Truman’s decision to retain civilian control of the use of nuclear weapons, seem wise and defensible.  But Sherwin’s narrative supports the disturbing conclusion that Congress’s absence distorted the Constitution, not simply in creating dysfunctional and dangerous relationships within the executive branch, but obviating any meaningful role for the legislative branch.  As we move forward on war powers, Sherwin’s book can play a valuable role in forcing us to rethink these relationships anew.

Posted 9:30 AM by Stephen Griffin [link]

H.R. 1405--An Act to Enforce Section Three of the Fourteenth Amendment

Gerard N. Magliocca

I want to take a moment to talk about H.R. 1405, the legislation introduced in the House to enforce Section Three of the Fourteenth Amendment. The text of the bill is here.  The bill is an excellent start as Congress reflects on how to respond to the events of January 6th. Here are some initial observations:

1. The bill states that "clear and convincing evidence" shall be the standard of proof in civil actions to oust an ineligible officeholder or declare someone ineligible as a candidate. This higher burden of proof should alleviate concerns about the unfair application of Section Three.

2. The bill gives the Attorney General the authority to bring a Section Three enforcement action. There is no private right of action. This will help to avoid nuisance lawsuits and create some uniformity in the application of Section Three.

3. The bill provides that Section Three actions involving some federal officeholders and candidates for federal office must be heard by a three-judge District Court in the District of Columbia. This avoids the problem of forum shopping and the risk that a single biased District Judge will find the facts.

4. The bill provides for expedited appeal to the Supreme Court from the ruling of the three-judge District Court. This ensures a prompt resolution of any Section Three issues so that the next round of elections can proceed in an orderly manner. 

I hope that the Judiciary Committee promptly sets up a hearing on the bill.

Posted 10:51 AM by Gerard N. Magliocca [link]

JFK and the President as the “Decider”

Sandy Levinson

For the Symposium on Martin J. Sherwin, Gambling with Armageddon: Nuclear Roulette from Hiroshima to the Cuban Missile Crisis (Knopf, 2020).

            I begin with an anecdote of sorts:  In October 1962, I was a first-year graduate student at Harvard, in the department of government.  My aspiration at the time was to become a “defense intellectual”; I had written my senior thesis at Duke on aspects of nuclear deterrence theory, and one of my heroes, from afar, was Morton Halperin, who at the age of 21 or 22, had become a recognized figure in the esoteric world of “nuclear theorists.”  So one of the courses I was taking was a “seminar” with Henry Kissinger.  The scare quotes are intentional, inasmuch as it included something like ninety students, and each week featured a guest.  Kissinger was a notably indifferent teacher (though I did have a wonderful “seminar section leader,” George Armstrong Kelly).  It was perhaps overdetermined that by the end of the year, I had migrated toward what became my lifetime vocation as a student of American constitutionalism under the tutelage of Robert McCloskey.  I have often described myself as the happiest Harvard graduate student I’ve known, in large part because of McCloskey, who was everything as a human being that Kissinger most definitely was not.  But that is not the anecdote, however relevant it is to my personal biography.

             The Cuban Missile Crisis, of course, occurred quite early on in my first semester.  But what I remember most vividly is the extent to which I was relatively unconcerned at the time.  The reason is relatively simple:  As a “defense intellectual,” immersed at the time in the work of Thomas Schelling and other rationalistic game theorists, I “knew” that the event was something of a charade conducted between leaders of the two great powers, both of whom realized that it was literally insane to engage in a nuclear exchange (or, perhaps, any other armed conflict); this meant that we were observing a kind of Kabuki theater.  One could not quite say that it was “full of sound and fury signifying nothing,” but I was, nevertheless, secure in my rationalistic confidence that nothing truly ominous was on the horizon.  It would be settled peacefully because any other solution was truly irrational (and, therefore, “unthinkable”).  To put it mildly, my views changed subsequently in the course of the 1960s.  I lost confidence that our leaders were necessarily “rational”; Vietnam, in particular, exposed the fallacies of relying on “the best and the brightest” to make foreign policy, including, of course, to engage in brutal warfare. 

Read more »
Posted 9:30 AM by Sandy Levinson [link]

On being an American patriot

Sandy Levinson

         Steven B. Smith, who teaches political theory at Yale, has just published, with the Yale Press, an interesting book Reclaiming Patriotism in an Age of Extremes.  A quite slender book, it does not purport to offer a comprehensive theory of patriotism across vast times or space; instead, it is basically a heartfelt missive to his fellow Americans (and, perhaps, fellow academics) about what can be said about American patriotism at this particular juncture in our history.  He is clearly concerned that a mixture of multiculturalism and post-modernism--the former probably more of a genuine reality than the latter in the present intellectual moment--has eroded any genuine notion of patriotism.  Prominent intellectuals like George Kateb or Martha Nussbaum esssentially deride the notion, the former in the name of Thoreauvian individualism, the latter evoking instead a commitment to a cosmopolitan identity as basically a citizen of the world.  And the most prominent public purveyors of patriotism are often "nationalists" committed to dubious notions of Making America Great Again or America First (or simply shouting out "USA, USA" at the Olympics; it is clear that Smith, altogether properly does not want to be associated with the latter, even as he is critical of the former.  

        I am interested in the book not only because I know Smith personally and respect him as a serious thinker (who, among other things, taught my daughter many years ago at Yale).  It's also the case that I have long been interested in the phenomenon of patriotism as an academic;  perhaps even more to the point, perhaps as a child of the 1960s, I often wonder exactly what that means in my own life.  Many years ago, when Steve Macedo reviewed my first book, Constitutional Faith, in the New Republic, he referred to me as a "patriot" even though (or perhaps because?) I was quite critical of the Madisonian tradition of constitutional  "veneration."  I preferred to cast my lot with Thomas Jefferson and Woodrow Wilson as vigorous critics of any such veneration.  What Macedo presumably recognized, though, was that I was indeed concerned with the future (as well as the past) of our country and believed that it was necessary to adopt a more Jeffersonian spirit of critique in order to serve our great national ends enunciated, for example, in the Preamble to the Constitution itself, or in the Declaration of Independence.  Moreover, I concluded that book by writing of my visit to the Bicentennial Exhibit in Philadelphia in 1987, where everyone was given the opportunity to "sign the Constitution" and, presumably, reaffirm one's identity as a loyal American defined by accepting its particular importance in structuring not only American government, but also American identity.

        Longtime readers of Balkinization are well aware that I no long exhibit the "constitutional faith" that was perhaps present in 1987.  My 2006 book, Our Undemocratic Constitution began with a chapter explaining why I did not sign the Constitution when given an opportunity to do during a visit at the opening on July 3, 2003 of the National Constitution Center (for which I had been a member of an academic advisory board). That visit concluded by entering "Signers' Hall," featuring life-size statues of all of the delegates to the 1787 Convention and an invitation to reaffirm one's membership in the American community by joining them, as it were, as signatories.  A 2011 second edition of Constitutional Faith explained at greater length why I had lost any such faith.  The answer is that I came, between 1987 and 2003, to view the "hard-wired" institutions and procedures set up in 1787, and barely amended thereafter, as having become impediments to realizing the aspirations nobly set out in the Preamble.  Since, then, I have come to view them increasingly as a clear-and-present danger to our survival as a constitutional democracy.  I increasingly have little patience for those who offer any kind of unreflective praise of the Constitution.  

        So, frankly, I don't know exactly how I should read Smith's encomia to the Constitution.  He writes, for example, "Our legal code based on the Constitution has been elaborated over the course of our national existence by our most prominent lawyers, judges, and legislators.  Americans can justly take pride that their legal system has survived intact for well over two centuries and today may yet stand as a bulwark against a resurgent populism" (p. 192).  Earlier he writes that "[m]any Americans, if asked will say they take pride in their Constitution and their constitutional tradition.  This pride in a text or a textual tradition forms the core of American patriotism."  To be sure, we can argue about the meaning of the Constitution, "and the argument--our self-questioning character--is a core aspect of American patriotism.  This is what makes ours a uniquely enlightened patriotism.  This is the true meaning of American exceptionalism" (p. 149).  

        I confess that I don't see myself within this universe of American patriots and would encourage others to leave such a universe.  I most certainly do not believe that our "legal system has survived intact for well over two centuries."  Like Bruce Ackerman, Smith's colleague at Yale, I think this is a dangerous misreading of the actualities of our constitutional history, which has the ideological function--and often the purpose--of blinding Americans to the all-important history of significant change, some of its produced by "populist" movements like Abolitionism and the Civil Rights Movement.  As I argued in Framed:  America's 51 Constitutions and the Crisis of Governance, I am increasingly less interested in the kinds of debates about constitutional "meaning" that obsess the legal academy and more interested--or even obsessed--by the (un)wisdom of a variety of aspects of the Constitution that present no real challenges of "interpretation," including, for starters, the allocation of equal voting power in the Senate or the sheer difficulty of amending the Constitution through Article V (and I assure you they are only starters).  

        So do I count as a "patriot" in Smith's universe?  Perhaps yes, inasmuch as both of us identify in profound ways as "Americans" and not really as a deracinated "citizen of the world," with equal "concern and respect" for anyone and everyone living anywhere and everywhere.  But no, if one is to take truly seriously commitment to the United States Constitution, either in its 1787 form or even as amended--though not enough--in 2021, as a necessary condition of patriotism.  

        So one problem I have with Smith's argument--much praised by David Brooks in a column in the New York Times--is what I find an insufficiently elaborated notion of what exactly he means by the Constitution and, therefore, the importance of being committed to it.  But I have yet another important reservation:  The central exemplar of enlightened American patriotism, for Smith, is Abraham Lincoln.  "No one," we are told, "has captured the meaning of enlightened patriotism more beautifully than Abraham Lincoln, who gave American constitutional democracy its highest and most articulate expression.  In his speeches and writings, Lincoln put forward a vision of American identity that brings out the principal basis of patriotism" (p. 150).  

        Here, too, I can be said to share Smith's focus, perhaps even obsession, with Lincoln.  This year I will teach "reading courses" at the University of Texas and Harvard Law Schools on Lincoln and Frederick Douglass.  (Last year, I taught such a course at Harvard on Lincoln alone.)  I certainly agree that no one professing to understand America can avoid grappling with our 16th President.  But, frankly, I discern a far more complex, more troublesome Abraham Lincoln than Smith appears to find, at least in this volume. Mario Cuomo famously said that politicians campaign in poetry but govern in prose.  It is not a coincidence that most evocations of Lincoln's greatness involve what might be described as his "poetic" efforts, including, for example, the Gettysburg Address and, even more certainly, the Second Inaugural Address.  It is specialists who tend to concentrate instead of his actual decisions as a practicing politician, whether candidate for higher office or as President of the United States. 

         So consider in this context Frederick Douglass's great speech delivered on "the Occasion of the Unveiling of the Freedmen's Monument in Memory of Abraham Lincoln" on April 14, 1876, the eleventh anniversary of his assassination. As one would expect, Douglass offered praise of Lincoln.  But then we read the following:

        It must be admitted, truth compels me to admit, even here in the presence of the monument we                 have erected to his memory, Abraham Lincoln was not, in the fullest sense of the world, either our         man or our model.  In his interests, in his associations, in his habits of thought, and in his                         prejudices, he was a white man.  He was preeminently the white man's president, entirely devoted            to the welfare of white men.  

Another Yale colleague of Smith's, David Blight, begins his great biography of Douglass by quoting and discussing this speech.  

        Was Douglass correct?  And if he was, does this cast light, for example, on the increasingly bitter controversy over the "1619 Project" and the attempts to answer it not only by Donald Trump's "1776 Report," which similarly valorizes Lincoln (and even selected aspects of Douglass), but also by far more temperate historians like Princeton's Sean Wilentz?  Is it true that any American patriot must recognize the extent to which white supremacy infects almost every aspect of our national history, including the thoughts and actions of even our greatest figures within what is accurately called "American civil religion"?  To be sure, not every "white supremacist" supports the Ku Klux Klan, and Douglass recognizes Lincoln's sincere hatred of slavery and his willingness to refer to Douglass in public as his "friend."  That is surely important.  Lincoln could have been far worse, perhaps someone like the man he chose to be Vice President, Andrew Johnson in the belief that this Unionist Democrat would aid his re-election chances in 1864.  But it was also Abraham Lincoln who convened a group of Washington leaders of the Black community and lectured them on the basic unlikelihood, if not impossibility, that Blacks and white could really live together amicably in one community; this was the basis of Lincoln's warm support of colonization as the "answer" to this quintessential American problem,  At that meeting he particularly encouraged them to move to Panama, though, no doubt, he would also have been happy with emigration to Mexico, Haiti, Canada, or Liberia.  

        One need not support the removal of the monument that Douglass so eloquently dedicated in order to recognize that Abraham Lincoln, like the author of the Declaration of Independence Thomas Jefferson, or each and every one of our national heroes, is radically imperfect, and not only because "to err is human."  Theirs was what might be called a "structured imperfection," inasmuch as success within American politics has always required presentation, whether overt or tacit, of being "the white man's president."  Today, perhaps except for Donald Trump, few would describe them as devoted "entirely" to the interests of whites.  But let us not kid ourselves.  Barack Obama, for whatever complex set of reasons, certainly did very little to teach his fellow Americans about the actual history of white supremacy and the concomitant duty to adopt political programs to try to alleviate it.  Quite likely, he would have been perceived as "an angry Black man" and denied the office to which he aspired.  And, of course, as with Lincoln, one can easily point to many good things he did as President.  But to stop there, to take refuge that no one is perfect (including the author of this post or anyone reading it) is ultimately to dodge the kinds of conversations we must have--and actions following from those conversations--if we are, I am tempted to say, "genuine patriots" committed to the vision of an egalitarian America that Smith, to his credit, embraces.  

        

Posted 7:20 PM by Sandy Levinson [link]

“Plain Dumb Luck” and the War Power: A Story of Nuclear Roulette and Its Lessons

Guest Blogger

For the Symposium on Martin J. Sherwin, Gambling with Armageddon: Nuclear Roulette from Hiroshima to the Cuban Missile Crisis (Knopf, 2020).

Martin Sherwin’s Gambling with Armageddon is a gripping, nail-biting account of the Cuban Missile Crisis, and so much more.  It would be hard to overstate how quickly the book grabs your attention and provides a frightening account of how close the world came to nuclear obliteration in October 1962.  But, if it is even possible, the book’s larger account of what the author calls “nuclear roulette” is even more frightening.

Those of us who teach and write about the separation of powers in the context of war spill barrels of ink debating such questions as whether Congress has given away too much of its authority to the executive; whether the courts have correctly stayed their hands with respect to a host of questions surrounding war prosecution, including enforcement of the War Powers Resolution; and more recently, whether Congress needs to bring up to date its Authorization for Use of Military Force to address new enemies and new fronts in the war on terrorism.  Sherwin’s book suggests that in the nuclear context, such debates may be, if my colleagues in this symposium will forgive me, largely “academic.”  Indeed, as Sherwin’s work lays bare, we have built a nuclear infrastructure that can bring us to the brink of destruction based on a handful of miscues and/or failures of diplomacy, and from which we may only be saved by sheer luck and the good judgment of a single individual who happens to be in the right place at the right time.

That, in any event, is one of the key points that Sherwin makes in the book.  In his words, the Cuban Missile Crisis “was the ultimate reality check: Nuclear threats could lead to conflicts regardless of intentions.”  Quoting political scientist Scott Sagan, Sherwin goes further to suggest that the crisis revealed the all-too real potential for “‘accidental nuclear war.’”  To make his point, Sherwin sets forth in detail here the miscues and misunderstandings that caused the standoff between Kennedy and Krushchev to escalate to the brink.  Continuing, he walks the reader through how, in the end, despite the desire of those leaders to “untie the knot” and reach a diplomatic resolution (to borrow from Krushchev’s language in a letter to Kennedy), it all came down to the sound judgment of a young Soviet naval officer who happened by chance to be on a particular Soviet B-59 submarine approaching the waters off of Cuba.  In recounting the events of the standoff, Sherwin tells us that he began a skeptic but emerged in agreement with Dean Acheson’s earlier account of the crisis, concluding that the world was saved only because of “plain dumb luck.”  

Now in this contribution, I do not want to spoil a good story, and Sherwin is a master storyteller.  Thus, I will refer the reader to his book so that he can walk you through how the tale unfolds.  What I can say is that it is hard to emerge from reading Sherwin’s account of the crisis and his explication more generally of the proliferation of nuclear weapons of war without coming to the belief that the notion of stockpiling the same as a “deterrent” to war (so-called “nuclear diplomacy”) is madness. 

This is, to be sure, the main contribution of the book, and it is a deeply important one at that.  

All the same, I wish here to draw out another one of the book’s contributions.  Gambling with Armageddon underscores that as much as we may wish to theorize as to how the separation of powers were designed to work and/or how they should work, when it comes to nuclear standoffs, none of that matters nearly as much as the character and judgment of the relevant actors in the equation.  This lesson, moreover, applies not only to high-level political actors, but extends all the way down the line to the naval officer far from home tasked with making a split second decision about whether to unleash a weapon with the potential for catastrophic consequences.

In this respect, Sherwin adds to a body of literature in the war context that has made this point before.  But given the context in which he is writing and the narrative he weaves, the point extends much further than prior accounts.  To flesh out what I mean, consider a counterfactual.  (As Sherwin notes here, he loves counterfactuals.  So do I.)  What if it had not been President Lincoln at the helm in 1861 charged with maintaining the Union?  And what if it had not been Lincoln at the helm in 1863?  Would another president have issued the Emancipation Proclamation and begun then and there to address the stain on our nation’s constitutional and moral fabric that slavery wrought?  As the Supreme Court wrote in the immediate wake of the war in Ex Parte Milligan, “[w]icked men, ambitious of power, with hatred of liberty and contempt of law, may fill the place once occupied by Washington and Lincoln; and if this right is conceded, and the calamities of war again befall us, the dangers to human liberty are frightful to contemplate. . . .”  Lincoln had been dead but a year and the Court was already ready to put him on Mount Rushmore, while also recognizing his exceptionalness.   

In my own work, I have drawn comparisons between President Roosevelt and Prime Minister Churchill during World War II.  For his part, Roosevelt set in motion the events that led to the mass incarceration during the war of some 120,000 Japanese Americans (over 70,000 of whom were United States citizens), disregarding what he had been told by his closest advisers–namely, that doing so would violate the Constitution.  Roosevelt only reluctantly agreed to closing the camps once he won reelection in 1944 and was tipped off that the government would lose an important Supreme Court case that challenged the legality of the camps, Ex parte Endo.  By contrast, Churchill is most responsible for winding down Britain’s domestic internment program under what was known as Regulation 18B.  Invoking British constitutional tradition, Churchill declared that  “such powers . . . are contrary to the whole spirit of British public life and British history.”  To be sure, there were important differences that may account for the two executives’ contrasting approaches, not the least of which were the ethnic make-up of those detained in each program and the fact that Churchill did not have to stand in a general election during the war.  But the point remains that Churchill took a leadership role in shutting down a wildly popular program, while Roosevelt had to be dragged kicking and screaming to do so (and despite being told repeatedly that the Japanese American incarceration would and did violate the Suspension Clause). 

Here is what Sherwin’s account adds.  It is not just the leaders in the oval office whose character, judgment, and values matter when it comes to waging war.  In an age when the push of a button can unleash massive destruction, it is also the character, judgment, and values of the individual on the front lines who staffs that button that matters.  (Indeed, the story Sherwin tells is one that history has witnessed happen more than once, and underscores the dangers of taking humans out of the equation, as countless viewers, including President Reagan, came to appreciate from watching the movie War Games.)  To borrow from Milligan, we may not always have a Washington or Lincoln, or in the case of the Cuban Missile Crisis, a Captain Vasily Alexandrovich Arkhipov, to save us.  And, if this point “is conceded, and the calamities of war again befall us, the dangers to human liberty [and life as we know it] are frightful to contemplate. . . .”

Amanda L. Tyler is the Shannon Cecil Turner Professor of Law at the University of California, Berkeley School of Law.  You can reach her by e-mail at atyler at berkeley.edu

Posted 9:30 AM by Guest Blogger [link]

Balkinization Symposium on Martin J. Sherwin, Gambling with Armageddon: Nuclear Roulette from Hiroshima to the Cuban Missile Crisis

JB

This week at Balkinization we are hosting a symposium on Martin J. Sherwin's new book, Gambling with Armageddon: Nuclear Roulette from Hiroshima to the Cuban Missile Crisis (Knopf, 2020).

We have assembled a terrific group of commentators, including Amanda Tyler (Berkeley), Sandy Levinson (Texas), Steve Griffin (Tulane), and Jeremi Suri (Texas).

At the conclusion, Martin will respond to the commentators.

Posted 9:00 AM by JB [link]

What is a Tax Cut, Anyway?

Joseph Fishkin

I’m not going to write a whole blog post today about the meritless (from the point of view of precedent and doctrine) yet also highly dangerous (because conservative constitutional politics may turn out to be way more important than current precedent and doctrine) states-rights legal challenge to the American Recovery Plan Act. Lawyers apply the ordinary tools of legal analysis to a lawsuits of this sort at their peril. Read David Super’s great post below for more about the precedents. If the current conservative supermajority in the Supreme Court decides to create a new principle that “if Congress offers states lots of money, it can’t attach too many strings,” then they’ll do that, using nicer words. I want to write instead about an issue deep in the weeds of the controversy, one that I’ve always found interesting and that this suit puts a fine point on. I am not a tax lawyer, just an interested outsider to this field, and I welcome input from those who know more.

The aid to state and local governments in ARPA is there to provide badly needed funds for various pandemic-related purposes and also to cover the overall state budget shortfalls that some states face as a result of the pandemic. (These are highly uneven: some state budgets like Alaska’s are in total free fall, while many other states’ revenues are holding up fine. Localities are mostly in worse shape than states but this lawsuit is about the $200 billion or so that goes to states.) The Act says states can’t take the money and then turn around and use it, “directly or indirectly,” to offset a tax cut. Opponents are now claiming that restriction is illegal, with various off-the-wall-until-maybe-now-who-knows arguments about the 10th Amendment and so on. What the Act actually says, since “tax cut” is more of a political phrase than a legal one, is that if you (a state) take this money, you can’t use it offset a “reduction in the net tax revenue . . . resulting from a change in law” or regulation; the statute gives some examples: “a reduction in rate, a rebate, a deduction, a credit,” or delaying some tax increase that would have gone into effect. Basically, the drafters tried to think of different ways to frame or package a tax cut, and are saying, you can’t use the money for that. Seems straightforward enough.

But this is actually a very odd line to draw. From many perspectives—including most rational ways of thinking about a state’s budget, and also the tools of standard economic analysis—tax policy and spending policy are highly fungible. Anything you can do with one you can do with the other. You can pay people $X to do something (expenditure) or you can give them a tax credit of $X if they do the same thing (taxation).

So in this case, suppose a state has some money. Its leaders believe the best use of that money is to give it back to the people. It could do that with a tax cut, or it could do that with a spending program that consists of writing everyone checks. According to conventional definitions of these words, the tax cut approach reduces “net tax revenue,” whereas the spending program, almost by definition, doesn’t. Of course there are plenty of ways to fuzz this up. You can make a tax cut look and feel more like a spending program if you make it refundable, so that people can literally get checks regardless of taxes paid; those checks look a heck of a lot like a government expenditure. Similarly you can make a spending program look and feel like a tax cut if you style the checks as “rebates”—and especially if you make eligibility and/or amount contingent on prior taxes paid in some manner. It seems from the statutory language quoted above that doing that last thing with ARPA funds might actually turn your expenditure into a tax cut for ARPA purposes and land you in hot water under the law. So… best to avoid writing “rebate” on the checks, I guess? But I mean, come on. The entire phrase “tax expenditure” exists to describe the budgetary and economic equivalence here: when you cut taxes in a targeted way, this is well described as a form of government expenditure.

And yet. Just because two things might be equivalent in budgetary terms, or even in economic terms, doesn’t make them equivalent in all respects. In political terms, many politicians find it highly salient whether a fiscal policy is styled as an expenditure or a tax cut. Read more »
Posted 3:21 PM by Joseph Fishkin [link]

Strange and Dangerous Attacks on the Recovery Plan’s Condition on State Tax Cuts

David Super

                Quite remarkably, some Republican state officials are attacking the constitutionality of the new section 602(c)(2)(A) of the Social Security Act added by section 9901 of the recently-enacted American Recovery Plan Act (ARPA).  This provision reduces federal fiscal aid to states by the amount of any state tax cuts.  Congress included the ARPA provision at a time when several Republican governors were advocating dramatic tax cuts despite the economic weakness caused by the pandemic. 

The assertion that this condition is unconstitutional is remarkable in at least two ways.  First, it is utterly without foundation on even the most aggressive reading of the Constitution and the Supreme Court’s precedents. 

And second, this theory’s implications, far from being an advance of states’ rights, are utterly devastating for the autonomy and independence of states.  Those making this claim therefore are privileging the sugar-high of tax cuts over principles of federalism that the Republican Party once insisted were sacrosanct.  When combined with widespread Republican acceptance of the Trump Administration’s flippant federalism, this suggests that we are entering an era when neither of the country’s two major political parties have any deep commitment to protecting the prerogatives of the states.  That shift could transform the structure of this country’s governance. 

On the merits, the challenge to the ARPA condition is absurd.  Nothing in the Constitution limits the federal government’s ability to transfer funds to the states to promote the general welfare, and nothing prohibits it from imposing conditions on receipt of those funds.  The federal government has been making conditional grants to the states for a very long time.  For a textualist or an originalist, that ought to be enough to dismiss this claim out of hand. 

Caselaw provides no support for this claim, either.  The Supreme Court has recognized limits to Congress’s authority to command state or local governments to carry out a federal agenda against their will.  But ARPA does not command anything:  it merely attaches a condition to money being offered to states. 

And the ARPA tax-cut provision falls well within the range of what the Court has accepted as funding conditions.  The post-New Deal Supreme Court brushed aside challenges to Congress’s ability to make conditional grants to states, ushering in the modern era of cooperative federalism.  It also upheld congressional efforts to influence state tax policy, approving sections of the Social Security Act that effectively increase a federal tax on employers whose states do not assess them a state tax to support unemployment compensation benefits. 

Numerous social welfare, transportation, environmental, law enforcement, and other programs have operated on the basis of conditional federal grants.  Quoting Chief Justice Burger, Chief Justice Rehnquist noted that incident to its spending power, “Congress may attach conditions on the receipt of federal funds, and has repeatedly employed the power ‘to further broad policy objectives by conditioning receipt of federal moneys upon compliance by the recipient with federal statutory and administrative directives.’"  He also reiterated a pre-New Deal holding that “the power of Congress to authorize expenditure of public moneys for public purposes is not limited by the direct grants of legislative power found in the Constitution. Thus, objectives not thought to be within Article I's enumerated legislative fields, may nevertheless be attained through the use of the spending power and the conditional grant of federal funds.”

More recently, the Court has recognized three limitations on Congress’s ability to condition funding to states.  None of these limitations, however, comes anywhere near causing a problem for the ARPA provision.  First, the Court has held that conditions must be open and obvious so that states know to what they are committing when they accept the funds.  The tax-cut condition appears explicitly on the face of ARPA:  the fact that it has become controversial days after enactment, long before any state submitted the certifications required to receive Fiscal Recovery Funds, demonstrates how open and obvious the condition is. 

Second, the Court has held that conditions on funding must be reasonably related to the purpose of the funding.  Congress probably could not condition Medicaid funding on a state changing its state bird.  In an opinion by Chief Justice Rehnquist, however, the Court upheld conditioning federal highway funding on adoption of a 21-year-old drinking age.  The Court found that Congress was reasonable in its belief that allowing younger persons to purchase and possess alcohol could increase drunk-driving deaths.  The Court brushed aside the state’s argument that controlling the sale of liquor was a core state power secured by the Twenty-First Amendment, noting that Congress had not denied the state that power but merely reduced its support for highways that it believed would be more dangerous as a result of a particular choice.  The ARPA condition has an even closer substantive relationship to the funding provided than does the drinking age that the Court upheld:  it constrains how the very funds being provided are spent.

Finally, in the Court’s first case on the Affordable Care Act (NFIB v. Sebelius), it held that Congress could not suddenly increase the conditions on federal Medicaid funding by requiring states to expand eligibility to large populations that the program previously had not served.  The problem, Chief Justice Roberts wrote, was that states had become so dependent on Medicaid funding that opting out was no longer a plausible option for them.  With states in this position, Congress effectively put “a gun to the head” of any state wanting to deny Medicaid to non-elderly adults without a disability or pregnancy.  With no other federal program providing remotely as much money to states, the “gun-to-the-head” standard may not apply outside of the Medicaid context.  But it certainly does not apply to money that states have no legal right to receive and in fact have not been receiving. 

This is where the Republican officials’ argument becomes so remarkable.  To invoke the NFIB principle, they essentially must argue that denying states fiscal relief in this crisis is pointing a gun to the states’ heads.  The Court found the ACA’s Medicaid expansion condition coercive only because it found that states had become so dependent on Medicaid funding that they had developed an implicit right to have it continue.  ARPA’s fiscal relief is not continuing funding at all:  states received some fiscal relief under last year’s CARES Act, but congressional Republicans and President Trump steadfastly opposed providing any more, reportedly sinking potential bipartisan agreements on further coronavirus relief measures because they so adamantly opposed Democrats’ insistence on more fiscal relief.  Had the Democrats not won the two Georgia senatorial run-offs, states almost certainly would not be receiving any further fiscal relief, conditional or otherwise.  To say that states were so dependent on this money that it cannot legitimately be conditioned is quite detached from its recent history. 

These attacks also posit a model of federal-state relations radically at odds with the states’ rights position Republicans have taken for the past half-century.  The model Republican attorneys general seem to advocate is one under which states reduce their own revenue-raising and rely on federal funds instead.  This is hardly consistent with states as fully equal sovereigns.  And this hardly seems a model that the Supreme Court’s conservative majority would want to embrace. 

Even an obsessive focus on state tax cuts funded by state program cuts leaves more and more problems unaddressed, eventually leading to greater federal involvement.  But insisting that states have a constitutional right to unconditional federal fiscal assistance to fund state tax cuts is very difficult to square with any coherent conception of federalism and would leave states increasingly as spending agents for the federal government.  That leading Republicans are making this argument suggests that their party is ceasing to be a consistent defender of states’ role in our system in favor of a relentless pursuit of tax cuts (and other its other substantive priorities). 

Although the Democrats did steadfastly press for state fiscal relief, I do not see that party taking up the states’ banner on any consistent basis, either.  In a political environment where loyalties to parties are far stronger than those to particular institutions of government, having neither major party deeply committed to states’ vitality could result in a lasting weakening of their position in our system.  Whether or not one believes the states’ traditional roles should be maintained, that is a big change. 

@DavidASuper1

Posted 5:28 PM by David Super [link]