Balkinization

Balkinization
an unanticipated consequence of
Jack M. Balkin

E-mail:
Jack Balkin:
jackbalkin at yahoo.com
Bruce Ackerman
bruce.ackerman at yale.edu
Ian Ayres
ian.ayres at yale.edu
Corey Brettschneider
corey_brettschneider at brown.edu
Mary Dudziak
mary.l.dudziak at emory.edu
Joey Fishkin
joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber
mgraber at law.umaryland.edu
Stephen Griffin
sgriffin at tulane.edu
Jonathan Hafetz
jonathan.hafetz at shu.edu
Jeremy Kessler
jkessler at law.columbia.edu
Andrew Koppelman
akoppelman at law.northwestern.edu
Marty Lederman
msl46 at law.georgetown.edu
Sanford Levinson
slevinson at law.utexas.edu
David Luban
david.luban at gmail.com
Gerard Magliocca
gmaglioc at iupui.edu
Jason Mazzone
mazzonej at illinois.edu
Linda McClain
lmcclain at bu.edu
John Mikhail
mikhail at law.georgetown.edu
Frank Pasquale
pasquale.frank at gmail.com
Nate Persily
npersily at gmail.com
Michael Stokes Paulsen
michaelstokespaulsen at gmail.com
Deborah Pearlstein
dpearlst at yu.edu
Rick Pildes
rick.pildes at nyu.edu
David Pozen
dpozen at law.columbia.edu
Richard Primus
raprimus at umich.edu
K. Sabeel Rahman
sabeel.rahman at brooklaw.edu
Alice Ristroph
alice.ristroph at shu.edu
Neil Siegel
siegel at law.duke.edu
David Super
david.super at law.georgetown.edu
Brian Tamanaha
btamanaha at wulaw.wustl.edu
Nelson Tebbe
nelson.tebbe at brooklaw.edu
Mark Tushnet
mtushnet at law.harvard.edu
Adam Winkler
winkler at ucla.edu

Compendium of posts on Hobby Lobby and related cases

The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC

The Anti-Torture Memos (arranged by topic)

Recent Posts

Is Now a Good Time to Go Back to that Presidential War Power Debate?

Taxes, program cuts, and reconciliation: the path forward

Constitutional Rot-- A Discussion on MSNBC

This is not the health care bill you were looking for. Move along.

Ending Medicaid As We Know It: The Court's Role

Texas boys speak, and what they want is secession

Policy Complexity vs. Political Sustainability: The Case of the ACA

The Lawyers Briefly Seize Control of POTUS Twitter

Who are the Statesmen of Constitutional Law?

Health Care and Reconciliation

Some preliminary thoughts on Matal v. Tam, Trademarks, and the First Amendment [UPDATED]

Speaking of Executive Deference

Presents, Emoluments, and Corruption

Opposing Trump's Muslim Ban At The Supreme Court

The Appeals Courts Aren’t Deferring At All to the President’s National Security Defense of His Travel Ban – Is This a Trump Thing or a Presidency Thing?

The Biggest Jurisprudential Mistake Made in Politics

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Monday, June 26, 2017

Is Now a Good Time to Go Back to that Presidential War Power Debate?

Deborah Pearlstein

Cross-posted at Opinio Juris

Because it’s too easy for our growing war in Syria to get lost amidst other also-pressing news, I want to be sure to note that last week ended with the Senate Foreign Relations Committee formally requesting the Trump Administration’s legal justification for a growing set of clashes between the U.S. military and armed forces allied with Syrian President Bashar Assad. The U.S. military has of course been engaged in anti-ISIL operations in Syria since 2014. But this recent violence – including the incident last week in which the U.S. military shot down a Syrian jet it said was firing on U.S.-allied non-state forces on the ground, as well as multiple U.S. efforts to defend its creation of a “de-confliction zone,” an area in Syria surrounding a garrison used by U.S. Special Forces to train partner forces there – involves the United States far more directly in state-to-state conflict with Syria (and its allies, Iran and Russia) than we have previously undertaken. Apart from the mammoth policy implications of this kind of escalation, it is far from clear what domestic legal authority supports it. In this post, I’ll address the notion that an existing statute authorizes these operations. In a later post, I’ll take up the suggestion the President’s inherent power under Article II of the Constitution does the job.

Posted 10:10 PM by Deborah Pearlstein [link]

Taxes, program cuts, and reconciliation: the path forward

David Super

In two recent posts, I discussed the procedural and political context for efforts to repeal the Affordable Care Act’s revenue provisions and reduce federal spending on health care assistance. This legislation does not, however, exist in a vacuum. It is part of, and interacts with, congressional Republicans’ broader policy agenda centered on steep cuts in taxes and social programs. This post explains how Congress’s procedural rules will shape those initiatives.

In order to preclude a Democratic filibuster in the Senate, Republicans must move their agenda under special rules for “budget reconciliation”. As I explained in more detail last December, reconciliation is possible when Congress approves a concurrent budget resolution for a fiscal year that sets revenue and direct spending targets and instructs specific committees to report out legislation that closes the gap between current law and those targets.

Senate precedent holds that each budget resolution may authorize only one reconciliation bill dealing with direct spending and only one reconciliation bill dealing with revenues; if a reconciliation bill, such as the pending health care proposal, contains both direct spending and revenue provisions, that is the only reconciliation bill allowed. Therefore, as long as the health care bill is in progress, it makes reconciliation procedures unavailable for either additional tax legislation or further reductions in direct spending. This likely explains much of the urgency the Republican leadership has felt to move the highly unpopular health legislation quickly.

The health care legislation has been moving under a budget resolution Congress approved for fiscal year 2017 – the year that is now almost three-quarters over – shortly after convening in January. Once the health care bill is out of the way, Congress can pass a new budget resolution for fiscal year 2018 with reconciliation instructions for other tax and budget cuts, together or separately. (Budget resolutions, like reconciliation bills, are immune from filibusters.)

Thus, as long as Republicans are trying to pass their health care bill, they cannot finalize a budget resolution to authorize reconciliation procedures to pass their tax and programmatic cuts. Conversely, once they give final approval to the 2018 budget resolution, they strip the health care bill of reconciliation status and essentially write its epitaph. (Republicans apparently believe that, if they can win initial Senate passage of their health care bill before finalizing a 2018 budget resolution, any resulting conference agreement would retain reconciliation protection. This far from clear: once Congress has established new targets under a new budget resolution, the old targets no longer apply and hence do not need current law to be "reconciled" with them.)

Although Majority Leader McConnell has expressed a strong desire to move the health care bill through the Senate before the July 4 recess at the end of this week, he really does not have to do so. Many observers believe that Republicans will wait to move their tax and programmatic cuts until after Labor Day – so that Members do not have to defend those proposals to constituents over the August recess – and hence they likely do not need to pass a new budget resolution until then.

In addition to facilitating the enactment of revenue and direct spending legislation, budget resolutions also are important in guiding the appropriations process. When the process moves as intended, Congress approves a budget resolution during the Spring before the start of a fiscal year, setting out the aggregate amount available to be appropriated for discretionary programs. 2 U.S.C. § 632(a). Shortly afterwards the two appropriations committees divide up this amount among their twelve subcommittees (so-called “302(b) allocations”). Id. § 633(b). These allocations determine, for example, how available funds will be divided between programs in the Departments of Labor, HHS and Education, those in the Department of Homeland Security, those in the Departments of Transportation and HUD, etc. Although Members not on the appropriations committees lack any direct role in setting these allocations, at least the allocations give Members some sense of how the funding levels in the first appropriations bills they consider will affect what is left for those at the end.

Without a budget resolution for 2018, and hence without public 302(b) allocations, the leadership is bringing to the House floor the appropriations bills of the subcommittees governing topics that Republicans most favor, such as defense, and giving them generous funding. By the time the final bills come up for consideration, likely to include Labor-HHS-Education and Interior, Environment and Related Agencies, most of the money allowed for discretionary programs will all have been committed elsewhere, forcing deep cuts in those last subcommittees’ bills to avoid automatic across-the-board cuts (“sequestration”).

In enacting their tax cuts, Republicans face a fundamental choice: whether to pay for them. The scope of the revenue losses that both House Republicans and President Trump propose would be difficult to offset under any circumstances, and few Republicans have the stomach to justify raising taxes on one group to pay for cutting taxes on another. The quick and ignominious death of Speaker Ryan’s border adjustment proposal shows that. Thus, a “revenue-neutral” tax bill seems off the table.

Some Republicans have been talking instead about a “deficit-neutral” tax cut bill, one that would be paid for with cuts in direct spending programs. With the Medicare plus the Old-Age and Survivors’ portion of Social Security consuming 64% of direct spending and likely off-the-table, cutting the remaining direct spending programs enough to pay for tax cuts of this magnitude would require eviscerating their core functions. As severe as have been the cuts Speaker Ryan has proposed over the years, those cuts have never reached the level that would be required to pay for this tax legislation.

Alternatively, congressional Republicans could enact tax legislation that is not paid for and adds to the deficit (even after its estimated impact is obscured with the “mandatory scoring” they have ordered the Congressional Budget Office and the Joint Committee on Taxation to employ). Although reconciliation’s protections against filibusters were established to facilitate deficit reduction, that assumption was never written into the Congressional Budget Act. As a result, Republicans have repeatedly used reconciliation for tax cuts that dramatically add to the deficit.

The Congressional Budget Act does, however, prohibit measures that increase the deficit in any year beyond those covered by the most recent budget resolution. 2 U.S.C. § 644(b)(1)(E). Thus, when Congress used reconciliation to enact President Bush’s deficit-increasing tax cuts, it had to put an expiration date on most of them so that they would not increase the deficit beyond the ten-year period covered by the applicable budget resolution. Although congressional Republicans strongly pushed for making those tax cuts permanent when that expiration date arrived – and Democrats had little appetite for being accused of raising taxes by not approving an extension – President Obama and congressional Democrats were able to allow some tax cuts for the very wealthiest people to expire as part of a budget deal with Republicans.

Seeking to protect their deficit-expanding tax cuts for as long as possible, some congressional Republicans have suggested extending the period covered by the budget resolution from ten years. Budget resolutions have covered ten-year periods for several decades because both parties recognized that projections beyond that range are too rough to allow coherent budgeting. But the assumption of ten-year budget resolutions, like the assumption that reconciliation was only for deficit reduction, was not written into the Act. So if Republicans decide to pass a fifteen-, twenty-, or even twenty-five year budget resolution, they apparently can use reconciliation to enact tax cuts that increase the deficit by an unlimited amount during that period. One imagines that, as soon as such legislation is signed, they will go back to proclaiming that budget deficits are robbing our children and need to be brought down with spending cuts right away.

Even if Republicans do not decide to pay for their entire tax bill with programmatic cuts, they appear likely to include reconciliation instructions to several committees, requiring them to report out legislation that would slash programs within those committees’ jurisdictions. Committees rarely disregard reconciliation instructions because their chamber’s budget committee can propose budget cuts to reach the reconciliation instruction if the committee of jurisdiction does not.

Looming over all of this is the statutory debt limit, which the federal government appears likely to reach some time between early September and early October. With many Republicans having won seats after attacking Democrats for voting to raise the debt limit, they are loathe to vote to raise it themselves (although not reluctant to vote for tax legislation that will make further increases in the debt limit necessary). Enough Republicans seem likely to play “chicken” with the debt limit that it likely will need Democratic votes to pass. To date, the Democratic leadership has insisted that they will only support a “clean” debt limit bill, one lacking any other substantive provisions. Many influential Republicans, however, are insisting that any debt limit bill include substantial spending cuts. In the end, a “clean” debt limit bill passing with mainly Democratic votes seems most likely, but doing this at the same time deficit-raising tax legislation – and painful budget cuts – are moving could harden positions and increase the risk that the two sides miscalculate. By effectively giving Congress permission to put the debt limit off until September, the Trump Administration has left very little time for any missteps to be corrected.

Posted 8:36 AM by David Super [link]

Sunday, June 25, 2017

Constitutional Rot-- A Discussion on MSNBC

This evening Ari Melber had a segment on my speech to the Yale Law School Alumni, "Trumping the Constitution," which analyzes Donald Trump's rise to power as a symptom of long-term constitutional rot in our political institutions.

Melber did a good job of summarizing several key themes in the speech in only a few minutes, and then followed it up with a panel discussion.

Posted 8:42 PM by JB [link]

This is not the health care bill you were looking for. Move along.

David Super

After weeks of suspense, built up with teases and process controversies, there is an understandable temptation to seize upon the newly released Senate Republican health care bill like a piece of next-generation consumer electronics. One set of writers reviews its features and bugs. Another prognosticates on the market’s receptivity to this new product. Eventually, when these reviews and predictions are starkly negative and key market participants announce that they will have no part of it, a new line of commentary arises about how the designer could have so badly miscalculated.

Yet this is not the final McConnell substitute. It is not McConnell 1.0. It is not even a particularly serious McConnell beta. It is just the first step in an extended dance whose basic moves are quite well-known. Like Swan Lake, however, when entrusted to a skilled choreographer – and Sen. McConnell certainly is that – this dance surprises and delights audiences each time it is performed, as though they had never seen it before.

Posted 8:39 AM by David Super [link]

Saturday, June 24, 2017

Ending Medicaid As We Know It: The Court's Role

Stephen Griffin

Perhaps the Senate's health care bill will be a political fizzle but if it passes, we should at least mark the Supreme Court's role in permitting Republicans to advance a proposal that would make one of the biggest changes to the welfare state ever -- ending the role of Medicaid as an entitlement program. As this WaPo story notes, with respect at least to Medicaid, the Senate bill is consistent with an aim Republicans at the national level have had for years. They have wanted to cap federal Medicaid spending either through block grants or per capita limits. As the story says, the Bush 43 administration made a run at a block grant proposal. But it doesn't say why it didn't pass.

In the past, proposals to cap Medicaid usually ran afoul of the nation's governors, and on a bipartisan basis. Medicaid is jointly funded by the state and federal governments. Governors know what would happen if federal spending is capped -- they will be left holding the bag for a lot of very ill poor people. This is particularly the case during recessions when state revenues decline sharply yet budgets must still be balanced due to constitutional mandates. In fact in many past recessions, including the Great Recession of 2008, states requested and got additional money from Congress to cover the gaps that opened up in state budgets for financing Medicaid. Governors are sensitive to this issue because they know they will be blamed for all the poor people who can't get medical care when state revenues decline. And if the Senate bill passes, that result is probably guaranteed in the next recession.

You might figure that governors would oppose the Senate bill and some (including some Republicans) do oppose it. But my sense is GOP governors in particular are not speaking with one voice this time around. They aren't because the Court created the option, unforeseen by Congress, of not expanding Medicaid in NFIB v. Sebelius. If all states had expanded Medicaid, they all would be in the same position with respect to the Senate bill, which is a very bad one, as it rolls back the expansion. Parenthetically, I haven't seen much commentary on how the different parts of the ACA are intended to work together. Reverse the Medicaid expansion and more poor people will show up at emergency rooms, recreating the cost shifting problem that the ACA tried to solve. In any case, GOP governors in non-expansion states appear to be supporting the House and Senate bills. The unity that characterized governors in the past on Medicaid has been broken. For that, we have the Supreme Court to thank.

Posted 4:38 PM by Stephen Griffin [link]

Texas boys speak, and what they want is secession

Sandy Levinson

Like many states, Texas has an annual "Boys State," as well as a Bluebonnet Girl's State, both sponsored by the American Legion, where presumably talented and ambitious youngsters descend on Austin to take on the role of would-be leaders of the State. Both met earlier this month, but I am interested in the boys and their enthusiastic endorsement that America's second-largest state secede from the United States. I can do no better than quote its own website and the excitement it conveys:

Today the Statesmen of Texas Boys State marched to capital to visit the various offices of elected officials and to tour the facility. The day began with the Statesmen lining up to march together with the band in the lead playing different music pieces. The capitol building of Texas is an amazing feat of architecture. Many people were able to see the march and many were impressed by the uniformity of the Statesmen. The House and Senate members reported to their respective chambers and began debating and passing laws. One bill in particular was highly favored by both chambers, the bill for secession. The senators and representatives of the Texas Boys State government passed the bill and created a constitution and a declaration of independence. This is the first time in Texas Boys State history that the government body decided to secede from the United States.

The gallery of each chamber were cheering and celebrating because they have now made history by becoming a nation....

Posted 4:17 PM by Sandy Levinson [link] (75) comments

Policy Complexity vs. Political Sustainability: The Case of the ACA

Frank Pasquale

Usually, federal guarantees of health benefits are hard to unravel, especially when a critical mass of the middle class relies on them. But the ACA's complexity has made it much harder to defend politically. If the GOP were about to end Medicare, outraged resistance would swamp them. But the proposed ACA & Medicaid cuts will affect diverse groups in diverse ways. Sure, you can argue to a middle class 27-year-old in Alaska that her premiums will likely increase if something like the BCRA passes:
Read more »

Posted 3:23 PM by Frank Pasquale [link]

Thursday, June 22, 2017

The Lawyers Briefly Seize Control of POTUS Twitter

Gerard N. Magliocca

Today part of the news is that the President does not, in fact, have recordings of his conversations with former FBI Director Comey. The President's Twitter account (in two tweets) explained:

"With all of the recently reported electronic surveillance, intercepts, unmasking and illegal leaking of information, I have no idea whether there are "tapes" or recordings of my conversations with James Comey, but I did not make, and do not have, any such recordings."

Something is amiss here. Read the sentence again. This does not sound like the President's normal language on Twitter. It sounds, instead, like something that a lawyer writes. The giveaways are the use of the quotes around the word "tapes," and the formal phrase "any such." Lawyers say things in this way because they are more precise.

As a House committee was requesting the disclosure of any "tapes" of any such conversations, it is not surprising that the President would run his answer by the lawyers before hitting Tweet. Hopefully he'll start making that a regular habit.

Posted 4:44 PM by Gerard N. Magliocca [link] (36) comments

Wednesday, June 21, 2017

Who are the Statesmen of Constitutional Law?

Richard Primus

Just noticing:

Chief Justice Roberts, in NFIB v. Sebelius, wrote that a (putative) rule of constitutional doctrine, namely the action/omission distinction in the context of the commerce power, is sensible in light of the fact that the Framers were “practical statesmen, not metaphysical philosophers.” 567 U.S. 519, 555.

Felix Frankfurter and Henry Hart, in what was essentially the Harvard Law Review Foreword for 1935, wrote that crucial elements of the Supreme Court’s practices in constitutional adjudication “express the sensibilities of statesmen, not the formulation of technicians.” See 49 Harv. L. Rev. 68, 94 (1935).

The two sources describe, more or less, the same virtue. But they claim it for two different groups of people. Because the statesmen Frankfurter and Hart were describing weren’t the Framers. They were the Justices.

Posted 10:38 AM by Richard Primus [link]

Tuesday, June 20, 2017

Health Care and Reconciliation

David Super

Last December, I wrote about how the strange world of congressional procedure, and particularly budget reconciliation, was likely to shape the agendas of Speaker Ryan, Majority Leader McConnell, and President Trump. Quite a bit has happened since then, but budget process rules remain pivotal. It therefore seemed time for an update.

Posted 9:50 PM by David Super [link]

Some preliminary thoughts on Matal v. Tam, Trademarks, and the First Amendment [UPDATED]

Marty Lederman

The constitutional analysis in the Supreme Court's decision yesterday in Matal v. Tam is, with one exception, split between two four-Justice opinions, the first written by Justice Alito (joined by the Chief Justice, and Justices Thomas and Breyer), and the second written by Justice Kennedy (joined by Justices Ginsburg. Sotomayor and Kagan). Here are a few preliminary reactions to those opinions.

Posted 6:18 PM by Marty Lederman [link]

Speaking of Executive Deference

Deborah Pearlstein

The Supreme Court’s decision yesterday in Ziglar v. Abbasi is an abysmal result for those who believe there should be some remedy available when the government violates your constitutional rights – even if Congress has not gotten around to enacting separate legislation creating one. As others have by now pointed out, it is abysmal as an exercise in legal reasoning as well, whether one agrees with the outcome or not. What it should not be, as some colleagues have suggested, is fodder for the broader debate – about which I wrote last week in the Trump immigration order context, below – about whether and when the President’s reasoning is entitled to judicial deference in matters of national security.

Posted 12:02 PM by Deborah Pearlstein [link]

Presents, Emoluments, and Corruption

Guest Blogger

Simon Stern

The government’s motion to dismiss in CREW v. Trump features a two-prong argument on the central issue in the dispute, namely, the meaning of the term emolument in the provision stating that “no person holding any office of profit or trust under them, shall, without the consent of the Congress, accept of any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state.” The DOJ’s argument presumably offers a template for the government’s position in the other emoluments cases. First, according to the DOJ, the term emolument was “widely understood at the framing of the Constitution to mean any compensation or privilege associated with an office”—such as tolls, rents, fees, and the like, attached to the performance of official duties. Whether this claim can stand up to historical scrutiny remains doubtful, in light of analyses by John Mikhail (here and here), and by Joshua Matz and Larry Tribe.

Second, according to the DOJ lawyers, it makes no difference that the term emolument also carried a broader sense, extending to “anything of value” such as a “benefit,” “advantage,” or “profit,” because (quoting Virginia v. Tennessee, 148 U.S. 503, 519 (1893)), “where a word is capable of different meanings or ‘[w]here any particular word is obscure or of doubtful meaning, taken by itself,’ the ‘obscurity or doubt may be removed by reference to associated words.’” Again quoting Virginia, the DOJ adds that we should construe terms by “apply[ing] to them the meaning naturally attaching to them from their context.” This trenchant observation, however, cuts in precisely the opposite direction from the one the DOJ urges.

No one seems to have any difficulty understanding what is meant by present, the word that precedes emolument on the list. People who receive presents might feel obliged to reciprocate, and even if they act with the best of intentions, their vigilance might occasionally flag. Instead of making government officials monitor themselves, the Constitution seeks to keep that need from arising in the first place. By the same token, the prohibition also prevents the circumstances that would make others look askance when a state actor confers favors, or offers preferential treatment that might appear to result from this sort of appreciative attitude. In an article on diplomatic gift-giving in the later eighteenth and early nineteenth centuries, Robert Ralph Davis, Jr. catalogued a wide array of presents that were prohibited under this clause, including snuffboxes, jewel-encrusted portraits, medals, porcelain, and, on one occasion, two horses and a lion. (Small gifts of fruit were okay, apparently.)

Posted 10:00 AM by Guest Blogger [link]

Friday, June 16, 2017

Opposing Trump's Muslim Ban At The Supreme Court

Corey Brettschneider

President Trump has asked the Supreme Court to lift the orders preventing him from implementing his revised travel ban. Nelson Tebbe, Micah Schwartzman and I, along with a large group of constitutional law scholars, have filed a brief opposing Trump's motion.

In our filing at the Supreme Court, we argue that the travel ban is an unconstitutional violation of the Establishment, Equal Protection, and Free Exercise Clauses. We demonstrate why Trump's recent tweets constitute additional evidence for his animus-based motivation. And we respond to the government's argument that the 4th Circuit engaged in a novel, unjustified expansion of the Establishment Clause.

Thanks to distinguished lawyer Roberta Kaplan and her team for drafting a terrific brief.

*Cross-posted at TakeCareBlog.com

Posted 12:36 PM by Corey Brettschneider [link]

Thursday, June 15, 2017

The Appeals Courts Aren’t Deferring At All to the President’s National Security Defense of His Travel Ban – Is This a Trump Thing or a Presidency Thing?

Deborah Pearlstein

The past week saw the Ninth Circuit Court of Appeals joining the Fourth Circuit in concluding that the Trump Executive Order (the Order) barring nationals from 6 Muslim-majority countries is so likely to violate the Constitution or laws of the United States, the Order cannot be allowed to take effect. The Fourth Circuit thought the ban ran afoul of the Constitution’s prohibition against religious discrimination; the Ninth Circuit thought the President failed to comply with statutory restrictions on executive immigration power. But both decisions turned on the courts’ basic rejection of the President’s argument that the Order was necessary to protect national security.

Regardless whether the Supreme Court decides to review these decisions (in the face of ample reasons not to), the lower courts’ decision-making is already striking. As others have by now pointed out, there are plenty of cases to which the courts could have pointed for the generic proposition that presidents are entitled to deference by the courts on matters related to immigration, and matters related to national security – a practice one might imagine is only amplified when a case sounds in both immigration and national security together. So why have the courts been so determined not to defer to the President here?

A number of writers over the past few weeks (e.g. here) have suggested that the courts are not deferring in these cases because they categorically do not trust this President. That is, between this President’s chronic expressions of disdain for the U.S. intelligence community, the judiciary, and the independence of federal law enforcement (and other not-in-the-briefs behaviors) – the courts have now cast aside the ordinary deference to which Presidents are entitled because “this president so obviously has not earned it.” Yet as well deserved as such general judicial distrust would be, there is nothing in either decision to suggest their holdings were based on a unique absence of trust here. And while it might not take too much psychologizing to support a hypothesis that many federal judges in fact do not trust this president, I would be more likely to embrace the view that this is really what’s going on in these decisions if the reasons the courts had given were so implausible or otherwise unique in the course of ordinary jurisprudence in these fields that some alternative explanation had to be the real one.

Dawn Johnsen offers a more detailed but still Trump-specific explanation, arguing that this President should fairly be understood as having ceded all claim to the traditional basis for judicial deference, which “embodies assumptions that the president’s actions reflect regular processes behind-the-scenes, that the decisions are informed by expertise and judgment….” Indeed, the Ninth Circuit’s decision relies expressly on the Order’s lack of statutorily required “finding that nationality alone renders entry of this broad class of individuals a heightened security risk to the United States.” But the Ninth Circuit does not cite process failures per se for the inadequacy of the President’s judgment. Rather, it concludes that the “findings” the President made “do not support the conclusion that the entry of nationals from the six designated countries would be harmful to our national interests.” In a world in which a president needs only invoke the words “national security” to secure judicial deference, the President’s assertion here might suffice. But it would be a mistake to think that’s the judicial world in which we reliably live. On the contrary, the Ninth Circuit here does exactly what the Supreme Court did in striking down the original military commission system established under an entirely different president. In Hamdan v. Rumsfeld (2006), the Court applied a statutory requirement that any deviation from existing (statutory) military trial procedures be supported by a presidential determination that it was “impracticable” to apply those procedures. As the Hamdan Court concluded, “[n]othing in the record before us demonstrates that it would be impracticable to apply court-martial rules in this case.” The President’s ‘findings’, such as they were, were exactly as inadequate to support its action in that case as this President’s are here. Again, without doubting the existence of any number of unique irregularities in the Trump process that produced this particular executive order, the Ninth Circuit is not-deferring in a way that is familiar in the post-9/11 world.

Then there is the prospect that “Trump’s extraordinary – indeed, unprecedented – behavior” means he is not entitled to traditional judicial deference because we lack “a plausible basis for believing” what judicial deference otherwise assumes – that the President is not making decisions “in bad faith, or on the basis of impermissible motives.” Indeed, it was exactly the opposite conclusion – namely, that plaintiffs had “plausibly alleged with sufficient particularity” that the reason for the government action was provided in bad faith – that led the Fourth Circuit to look behind the Order’s stated national security basis to examine whether Trump’s actual motives violated the Constitution’s Establishment Clause. Yet the court’s move here likewise reflects nothing new under the deference sun. Rather, the Fourth Circuit expressly applies the longstanding, profoundly deferential standard in 1972’s Kleindienst v. Mandel providing that the courts will not look behind the executive’s exercise of discretion to exclude aliens from the United States so long as the executive “exercises this power on the basis of a facially legitimate and bona fide reason.” Where there is evidence that the reason is not bona fide – the literal translation of which is good faith – the court has long retained the power to look behind executive immigration actions. Trump’s bad faith may be unprecedented, but the courts’ concern about bad faith is not.

Trump’s Order, the chaos that surrounds it, and the President who signed it are unique in all kinds of ways. The courts’ approach to it not nearly as special as all that.

Posted 3:13 PM by Deborah Pearlstein [link]

The Biggest Jurisprudential Mistake Made in Politics

Guest Blogger

Scott Shapiro

Twitter exploded three days ago when Chris Ruddy, publisher of Newsmax and friend of Donald Trump, reported on CNN that the President was thinking of firing the Special Prosecutor, Robert Mueller. There was predictable outrage (this is Twitter, of course): How could the President fire the special prosecutor when he is likely to be (and we now know is) a target of Mueller’s investigation? The blowback was even stronger than when Trump fired Comey, for Mueller had only been appointed last month and could not possibly have given the President cause for dismissal.

Some responded that the President is the chief executive of the United States. He has the legal authority to dismiss anyone who works in the executive branch. He’s the Decider. (Let’s ignore the subtleties of whether or exactly how he could do this. For discussion, see here and here). Alan Dershowitz, for example, has argued that “President Trump cannot be charged with obstruction for firing Comey, which he had the constitutional authority to do.” The idea seems to be that someone can’t be criminally responsible for a legally authoritative action. “A president cannot be charged with a crime for properly exercising his constitutional authority.”

Unfortunately, this response misses an important jurisprudential distinction, one that is routinely conflated in political discussions: having a legal power to act does not imply a legal permission to exercise that power. You can do some act in the sense that the law gives you the power to do it, and you can’t do that very same act in the sense that the law forbids using that power.

Two simple examples perfectly illustrate this point. Jurors have the power of jury nullification, meaning they can acquit against the weight of the evidence. But judges instruct jurors not to use this power, instead directing them to decide cases using only the evidence admitted during the trial and the legal instructions provided. Jurors have the legal power of jury nullification, but it would be legally wrong for them to exercise it.

Or suppose you sign a contract with Donald Trump to buy one of his properties. But before you close, he signs a second contract with another person and closes on that deal first. He will have successfully sold the property to someone else, even though he violated his contractual duty to you not to do so.

As philosophers have long recognized, people can have a right to do wrong. The law may give persons a legal right to perform some action even though there are situations where exercising that right would be wrong. In such cases, you have both a legal right (understood as a power) that you don’t have the right (understood as a privilege) to exercise.

Thus, even if the President has the authority to fire the special prosecutor, he is under a duty not to exercise that power for the purpose of obstructing justice. He can fire Mueller and he can’t fire Mueller. In this way, the President is no different from a juror or an unscrupulous real estate developer.

Scott Shapiro is Charles F. Southmayd Professor of Law and Professor of Philosophy. You can reach him by e-mail at scott.shapiro at yale.edu

Posted 9:35 AM by Guest Blogger [link]

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