Balkinization   |
Balkinization
Jack Balkin: jackbalkin at yahoo.com Bruce Ackerman bruce.ackerman at yale.edu Ian Ayres ian.ayres at yale.edu Corey Brettschneider corey_brettschneider at brown.edu Mary Dudziak mary.l.dudziak at emory.edu Joey Fishkin joey.fishkin at gmail.com Heather Gerken heather.gerken at yale.edu Abbe Gluck abbe.gluck at yale.edu Mark Graber mgraber at law.umaryland.edu Stephen Griffin sgriffin at tulane.edu Jonathan Hafetz jonathan.hafetz at shu.edu Jeremy Kessler jkessler at law.columbia.edu Andrew Koppelman akoppelman at law.northwestern.edu Marty Lederman msl46 at law.georgetown.edu Sanford Levinson slevinson at law.utexas.edu David Luban david.luban at gmail.com Gerard Magliocca gmaglioc at iupui.edu Jason Mazzone mazzonej at illinois.edu Linda McClain lmcclain at bu.edu John Mikhail mikhail at law.georgetown.edu Frank Pasquale pasquale.frank at gmail.com Nate Persily npersily at gmail.com Michael Stokes Paulsen michaelstokespaulsen at gmail.com Deborah Pearlstein dpearlst at yu.edu Rick Pildes rick.pildes at nyu.edu David Pozen dpozen at law.columbia.edu Richard Primus raprimus at umich.edu K. Sabeel Rahmansabeel.rahman at brooklaw.edu Alice Ristroph alice.ristroph at shu.edu Neil Siegel siegel at law.duke.edu David Super david.super at law.georgetown.edu Brian Tamanaha btamanaha at wulaw.wustl.edu Nelson Tebbe nelson.tebbe at brooklaw.edu Mark Tushnet mtushnet at law.harvard.edu Adam Winkler winkler at ucla.edu 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 Divided by a Common Concept? Comparing Deference in Canada and the United States The Pardon of Ceasar Griffin The Chevron Doctrine through the Lens of Comparative Law: Introduction to a Symposium How the Government Shutdown Can End Supreme Court Reform Redux Nudging the Justices to retire after 18 years The Problem In a Nutshell Section Three "Of" and "Under" Nonsense: The Sequel Kevin McCarthy’s Speakership and the Undiscovered Country On Slippery Slopes Gender identity and political evil The Continuity of the Electoral and Judicial Means of Enforcing Section Three Another 14th Amendment Panic CFP: National Conference of Constitutional Law Scholars Religious Liberty as a Judicial Autoimmune Disorder: The Supreme Court Repudiates Its Own Authority in Kennedy v. Bremerton School District The Relevance of Anti-Federalist Advocacy to Original Meaning Damn the Torpedoes: Disqualifying Donald Trump Procrastination Isn't Always Wisdom The Flawed Arguments for Privileging Federalist over Anti-Federalist Advocacy as Evidence of Original Meaning The Original Meaning of "Federalism" The Politics of Disqualifying Trump Not Too Hot, Not Too Cold, and Not At All Public-Meaning Originalism and Speaker Sincerity The Definition of an Insurrection Interpreting Ratification The Sleeping Giant is Awake Baude and Paulsen on Section Three of the Fourteenth Amendment The Burdens of Judgment Frederick Douglass as Constitutionalist Can the Voters Pardon Donald Trump? Careening Towards a Government Shutdown
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Thursday, September 28, 2023
Divided by a Common Concept? Comparing Deference in Canada and the United States
Guest Blogger
For the Balkinization Symposium on The Chevron Doctrine through the Lens of Comparative Law Paul Daly
I am a committed comparativist — in my 2021 monograph on judicial review of
administrative action, I developed and applied a unified interpretive framework
to the administrative law of Australia, Canada, England, Ireland and New
Zealand; a decade ago I wrote a book on deference that drew on American,
Canadian and English jurisprudence. And yet today, as far as judicial review of
administrative action is concerned, I have the distinct impression that the
United States and Canada are two countries divided by a common concept —
deference. Although there is much in the Supreme Court of Canada’s recent root-and-branch reform of
Canadian administrative law in the 2019 Vavilov decision that could illuminate the contemporary
challenges for American administrative law, it seems doubtful to me that the
SCOTUS will reach across the divide in its (re)consideration of Chevron deference
in Loper Bright. There are two aspects to this divide, which map onto steps
one and two of Chevron, relating respectively to statutory
interpretation and the methodology of deferential judicial review. Wednesday, September 27, 2023
The Pardon of Ceasar Griffin
Gerard N. Magliocca
Griffin's Case is getting a lot of attention in the Section Three debate. In that circuit decision, Chief Justice Chase denied a writ of habeas corpus to a Black man (Ceasar Griffin) convicted in state court of assault. I just wanted to point out that Mr. Griffin was pardoned by the Governor of Virginia about a week after the Chief Justice issued his opinion. (The Governor was an appointee of a Union Army commander in charge of the state under Military Reconstruction.) A Virginia newspaper noted the pardon on May 20, 1869. The Chief Justice's opinion was issued on May 9th or 10th, 1869. The Chevron Doctrine through the Lens of Comparative Law: Introduction to a Symposium
Guest Blogger
For the Balkinization Symposium on The Chevron Doctrine through the Lens of Comparative Law Susan Rose-Ackerman
& Oren Tamir Constitutional law commentaries regularly include references
to foreign law. Judges occasionally cite foreign sources in their judgments
(sometimes triggering fierce disagreements
about the legitimacy of that practice). Litigators make comparisons in their
briefs. Constitutional law scholars of different stripes also consider how other
nations adjudicate constitutional disputes and distribute constitutional powers.
Foreign sources even occasionally prove central to debates outside the courts
and in constitutional politics
itself. However, in the adjacent field of administrative law,
attention to comparative or transnational practice is strikingly absent.
Indeed, judges seldom reference foreign administrative law and fail to ask themselves,
for example, how the laws and administrative structures of different nations might
contribute to the interpretation of the APA. Litigators similarly don’t build
their arguments around attempts to learn from other jurisdictions. Even the
growing scholarship in administrative law that takes comparative practice
seriously seems quite far from the center of scholarly administrative law discussions,
both around the world but especially in the United States. Therefore, for comparativists, it might seem an unexpected
positive endorsement to find a reference to foreign administrative law in
nothing less than a Supreme Court opinion—perhaps for the first time since the 1930s. More
specifically, in his opinion last Term dissenting from a denial of cert in Buffington
v. McDonough, Justice Gorsuch explicitly referenced the fact that many—if
not most—foreign jurisdictions don’t have a doctrine similar to Chevron,
which instructs courts to defer to reasonable interpretations by agencies of
open-ended statutes. As our own work
confirms, Justice Gorsuch is quite clearly correct. If you look near and far,
you will very likely not find anything exactly like Chevron abroad. Monday, September 25, 2023
How the Government Shutdown Can End
David Super
Although the federal
government will not shut down for another five days, pretty much anyone who is
paying attention has known for some time
now that a shutdown is inevitable. The machinations
this week involve only Speaker McCarthy’s desperate efforts to salvage House
Republicans’ abysmal public messaging. Whether
he succeeds or fails will have no impact on whether a shutdown occurs and may
not even have much effect on the length of that shutdown. The next logical questions, then, are how,
when, and on what terms the shutdown will end. Supreme Court Reform Redux
Mark Tushnet
Suppose you thought that current proposals for Supreme Court
reform were merely politically motivated and ill-advised. How might you react
to Jack Balkin’s suggestions
(including his earlier discussion)?
Specifically, are there plausible constitutional objections to them? (I write “plausible”
to signal that I don’t necessarily agree with what follows but that someone skeptical
about the proposals might find them not merely plausible but compelling.) One objection to the basic proposal, described by Jack as
involving congressional creation of “two en banc courts,” almost leaps off the
page. The Constitution says that there shall be “one supreme Court” but the
proposal openly says that there will be two. (A formalist might say that each justice
is appointed to the “one” supreme Court and then is assigned to different
benches within that Court. A functionalist would be skeptical about that.) This textual point might be bolstered by suggesting that the
Constitution creates two multi-member bodies (the House and the Senate) and
assumes that each member will have rights and duties equal to those of every
other member, subject only to regulations adopted by the bodies themselves (e.g,
the reference to choosing a President pro tem by the Senate). My guess is that
in discussions about whether to create a plural executive you’d find the same
assumption at work, with people saying that distinctions among those people would
have to be made expressly in the Constitution or adopted by the executives
themselves. Read more »
Friday, September 22, 2023
Nudging the Justices to retire after 18 years
JB
In a previous post I explained how we might achieve the effective equivalent of term limits for Supreme Court Justices by changing the rules of the Court's appellate jurisdiction. According to my proposal, the President and Senate would appoint a new Justice in the first and third year of each President's term. The nine Justices most junior in service would hear cases under the Court's appellate jurisdiction, and all of the Justices would hear cases under the Court's original jurisdiction. Because the most important cases before the Court involve appellate jurisdiction, this would create the effective equivalent of 18 year term limits, with the group of Justices hearing appellate cases continually changing as new Justices are added to the Court. In addition to this proposal, we should adopt additional legislation to give the Justices incentives to retire after 18 years of service. Here are some ways to do this: 1. Justices with more than 18 years of service should sit and hear cases on the circuit courts of appeal in addition to their other Supreme Court duties. Requiring Justices to ride circuit-- i.e., hear cases in the lower federal courts-- has been held constitutional since Stuart v. Laird in 1803. 2. Justices with more than 18 years of service may hire only one law clerk paid for by the government. 3. Justices who retire with at least 9 but no more than 19 years of service will enjoy a federal pension on retirement equal to three times their highest salary as a Justice. Justices who retire after 19 years of service will receive a federal pension equal to one half their highest salary as a Justice. This last proposal does not violate Article III's Compensation Clause, because it does not "diminish" the Justices' "Compensation .... during their Continuance in Office." It simply offers the most desirable package of retirement benefits to those Justices who retire before completing 19 years of service. Note that Congress already varies the amount of retirement benefits for federal judges by age and years of service under 28 USC Section 371. However, because some Justices may be near or past 19 years of service at the time the law goes into effect, we can and should create special transitional rules for them to avoid unfairness. These three proposals can operate independently of my original proposal concerning appellate and original jurisdiction. But taken together with the first proposal, these proposals will give most Justices good reasons for retiring between 18 and 19 years of service. After all, if they stay on, they will no longer be hearing the Court's most important cases, they will have a full caseload in the circuit courts, they will have only one clerk to help them, and they will have much smaller retirement benefits. Under these conditions, most Justices will choose to retire. Addendum: Joey Fishkin of this blog has pointed out in correspondence that one should combine these reforms with strict ethics requirements for the Justices-- stricter than we have today, at any rate. Otherwise rich friends and political allies could offer Justices who stayed on the Court past 19 years a handsome pension, subsidies for extra (unofficial) clerks, and so on. Joey writes: "As a political matter, it’s hard to imagine the scenario where one CAN enact measures aimed at nudging justices toward 18-year terms and CANNOT enact a more binding ethics code, which is quite popular." Thursday, September 14, 2023
The Problem In a Nutshell
Gerard N. Magliocca
Thus far, state Secretaries of State are basically saying two things about the Section 3 issue: 1. The Supreme Court should resolve this question as soon as possible. 2. I can't do anything to help the Supreme Court resolve this question soon. Sometimes Point #2 comes in the form of "state law gives me no discretion." If so, then fair enough. I can't say what state law is on that point in every state. But sometimes Point #2 comes in the form of "I won't act without a court order." That position is in tension with Point #1. Fortunately, we only need one state Secretary of State with discretion to declare Trump ineligible to propel the case to the Supreme Court. Time is running out. Wednesday, September 13, 2023
Section Three "Of" and "Under" Nonsense: The Sequel
Mark Graber
The persons responsible for Section Three of the
Fourteenth Amendment would have laughed at the suggestion that past or future presidents
who never held any other office could not be disqualified from present and
future office. That whether former president John Tyler, who became a secessionist in 1861, would
have been disqualified from office had he survived the Civil War depended on
whether Tyler held other state or federal offices is nonsensical. No serious constitutionalist would interpret
Section Three as exempting presidents who held no other public office absent a very
clear constitutional mandate. Section Three of the Fourteenth Amendment disqualifies any person from holding “any office, civil or military, under the United States, ... who, having previously taken an oath ... as an officer of the United States, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same.” The common sense reading is that the
set of offices that make persons subject to Section Three are the same as the
set of offices from which persons may be disqualified. That a traitorous former president is exempt
from Section Three, but not traitorous Representatives, Senators, Judges, and
Generals boggles the imagination. Last winter in an essay for Lawfare, I demonstrated
that the Fourteenth Amendment hardly compels such foolishness. My survey of every congressional use during the first session of the Thirty-Ninth Congress of "office(s) of," "office(s) under," "officer(s) of," and "officer(s) under" would not surprise anyone with common sense. The members of the 39th Congress
who drafted Section Three spoke of the president as “an officer of the United States/Constitution” and as an “officer under the United States/Constitution.” They spoke of the
presidency as “an office of the United States/Constitution” and as an “office under the United States/Constitution.” Some linguistic differences explain the use of "of" and "under" but there is no (not hardly
any) evidence in the pages of the Congressional Globe that any member of
Congress thought the president might be an officer under the United States/Constitution or an
officer of the United States/Constitution, but not both. The essay paid particular attention to a House Report issued a month after the Fourteenth Amendment was sent
to the state. That report insisted that no constitutional difference existed in the constitutional usage of “officers
under the United States/Constitution” and “Officers of the United States/Constitution.” The blog post summaries my conclusions. I may elaborate in the future. Josh Blackman and Seth Barrett Tillman are nevertheless determined
to repeat their comedic performance of December 2021 when they posted on SSRN an essay claiming, contrary to the evidence
and common sense, “that the President is not a Section 3 ‘officer of the United
States.’” As was the case with their original piece, the new piece they have recently posted on SSRN claims to be an understanding of the original meaning
of Section Three. Their lack of cotemporaneous historical evidence for a claimed work of originalism is stunning. The number of persons they cite in support of their conclusions who might have influenced the drafting and framing of Section Three is zero. Blackman and Tillman fail to provide any evidence that any member of the 39th Congress maintained that the president is not an officer of the United States or distinguished between an “officer of the United States” and an “officer under
the United States.” Blackman and Tillman
do not point to any member of a state ratification convention or editorialist
who, when the Fourteenth Amendment was debated, maintained that the president is
not an officer of the United States or distinguished between an “officer of the
United States” and an “officer under the United States.” They do not point to any governing official,
political actor, or small child who during the 1860s made a claim that remotely
supports their assertions about the original meaning of an “officer of the
United States.” Blackman and Tillman do make the odd
claim that William Baude and Michael Paulsen in their influential article claiming that an originalist reading would disqualify Donald Trump under Section Three and my somewhat
less famous (i.e., obscure) blog post “disregard the fact that the debates they
cite from the 1860s in support of their position look back to debates from the
early Republic.” But Reconstruction
Republicans insisted those debates supported their position that no
constitutional difference existed between “officers of the United States” and “officers
under the United States.” Whether members
of Congress in 1866 were right or wrong about their interpretation of debates
in 1790s has no bearing on what members of Congress thought in 1866. The crucial passage occurs in a Congressional Report issued
barely a month after Congress sent the 14th Amendment to the
states. That passage declares, “But a
little consideration of this matter will show that ‘officers of’ and ‘officers
under’ the United States are (as said by Mr. Dallas in this Blount case, p.
277) ‘indiscriminately used in the Constitution.’” (Congressional Globe, at
3939). My blog post intentionally omitted “(as said by Mr.
Dallas in this Blount case, p. 277)” which I interpreted as a footnote in the
original House Report being reproduced in a Congressional Globe that did not
include footnotes (I was also madly cutting to stay within word limits). Blackman and Tillman correctly point out that
some members of Congress in 1797 disagreed with Dallas when Dallas claimed that no difference exists between “officers of” and “officers under.” So what.
The issue is what people in
1866 believed, not whether there was a disagreement in 1797. If members of the Thirty-Ninth Congress uniformly thought Dallas was right about the Constitution, pointing out that some members of Congress in 1797 disagreed has no bearing on the original meaning of constitutional language drafted in 1866. The evidence from the Thirty-Ninth Congress and House Report is unambiguous. Reconstruction Republicans uniformly spoke of the president as an “officer
of the United States.” They never distinguished between “officers of” and “officers
under” the Constitution/United States. The
committee report insisted, “It is irresistibly
evident that no argument can be based on the different sense of the words ‘of’
and ‘under.’” No difference existed between “an officer ‘of’ the United States,
or one ‘under’ the government of the United States,” the House Report
concluded. “In either case he has been brought within the constitutional
meaning of these words . . . because they are made by the Constitution
equivalent and interchangeable.” Pundits who know
nothing about history risk confusing the public by citing Blackman/Tillman in efforts to engage in “balanced”
journalism. We may see posts on social media contending: Some scholars
maintain the president is both an officer of and an officer under the
Constitution. Others maintain the president is not an officer of the
Constitution. Given the division of
opinion, we ought not disqualify Donald Trump from holding any state or federal
office. This is reporting of the worst sort. Powerful evidence exists that the persons
responsible for Section Three of the Fourteenth Amendment believed the
president was an “officer of” and an “officer under” the Constitution. If Donald Trump participated in an insurrection, he is not exempted from disqualification under Section Three because the only office he ever held was the presidency. No
evidence exists that any member of Congress, member of a state legislature,
political activist, journalist, or hopeless crank during the 1860s thought a
president was not an officer of the United States or that a constitutional
difference existed between an officer of the United States and an officer under
the United States. History did not give Donald Trump a free "get out of disqualification card" unobtainable by any other president. That two members of
the academy make that claim is evidence of a great many things, but not
evidence about what persons were thinking when they drafted Section Three of the
Fourteenth Amendment. Kevin McCarthy’s Speakership and the Undiscovered Country
David Super
John Boehner, Paul
Ryan, and Nancy Pelosi all seem rather happy as former Speakers of the
House. Yet Kevin McCarthy seems fiercely
determined not to join their number. The
question remains what price he is willing to pay to keep his gavel. We will find out soon. Because Speaker
McCarthy lacks deeply-held beliefs of any kind, he naturally is not a true
believer of the Freedom Caucus’s Trumpian orthodoxy. Freedom Caucus Members from the beginning
have been divided over whether he is a useful soothing public face for their
agenda or a betrayer in waiting. Rep.
Matt Gaetz, one of the most McCarthy-skeptical Members from the beginning, is now
trying to lay the public groundwork for a vote to oust the Speaker. Speaker McCarthy may have thought he would
reap gratitude for announcing that he was opening an impeachment inquiry into
President Hunter Biden – er, I mean, President Joe Biden – but he was greeted
with scorn
from Freedom Caucus and adjacent Members, who complained that this should have
happened long ago and in any event was no substitute for enforcing their hard
line on radical domestic appropriations cuts.
The Speaker is
becoming increasingly boxed-in, and the more he tries to stall, the more
perilous his predicament becomes. Yes,
he may have bought temporary peace on this issue within his caucus by ordering
an impeachment inquiry, but at a heavy long-term cost to his party. Now that this inquiry has started, it can
only end in one of three ways, each of which will harm Republicans. First, the Freedom
Caucus and its allies can bring articles of impeachment to the floor and
prevail. That will require all but four Republicans
in vulnerable seats to vote “yes” (all but three if Rep. George Santos has
taken a plea deal by then). Voting for
an evidence-free impeachment would shred the credibility of those in competitive
districts who like to run as “moderates”.
It also would likely result in a prompt Senate trial after which many
Senate Republicans will feel they have to vote “no”. (Senators tend to be more risk-averse than
House Members, and they are not protected by gerrymandering.) Far from tarring the President, this would
loudly exonerate him in the eyes of many as the campaign is heating up. It also would invite awkward comparisons to
the progress of former President Trump’s cases.
Second, the Freedom
Caucus can bring articles of impeachment to the floor and fail. That likely would cause a major rupture in
the House Republican Caucus, destroying its effectiveness and sparking several
divisive and expensive primaries of Members already struggling to fend off
Democrats. (House Minority Leader
Jeffries will bring the popcorn.) House
Republicans will surely lose seats as a result, and, again, President Biden
will powerfully be exonerated. And third, vulnerable
House Republicans may succeed in keeping articles of impeachment from moving
forward. It is not clear how they would accomplish
this. The usual route for vulnerable
Members is to speak with caucus leadership.
Such private appeals prompted Speaker Pelosi to firmly oppose bringing
articles of impeachment against President Trump over his role in Russian
interference with the 2016 election. But
Speaker McCarthy has so little credibility or clout that few far-right Members
likely would listen to him. And, yet
again, bottling up impeachment in committee after launching a formal inquiry would
give President Biden a powerful exoneration.
Perhaps their best chance would be to launch long-shot litigation
against the Administration for the release of sensitive-but-irrelevant
documents and blame their inaction on (wholly predictable) litigation
delays. Yet the
impeachment inquiry is not the most serious or most imminent threat to the
Speaker’s gavel. That is the fast-approaching
government shutdown on October 1. Here
he may not have much chance to stall: the
Freedom Caucus has vociferously nixed postponing the shutdown with a stop-gap “continuing
resolution” unless they receive policy concessions in advance that are
non-starters with Democrats. In
particular, they are demanding that any federal or state prosecutor acting
against former President Trump be defunded.
So it is hard to see how the shutdown’s start is delayed beyond October 1. The Speaker may
have even bigger problems within the Republican Party on appropriations than he
does on impeachment. He acceded to the
Freedom Caucus’s demands to abandon the spending levels he agreed upon with
President Biden in June, and the House Appropriations Committee has been moving
bills whose spending levels would devastate numerous popular programs and that
contain extreme, highly controversial policy riders. It remains unclear how many of these can muster
218 votes on the House floor; attempts to move various appropriations bills in
August had to be scrapped for lack of Republican support. More
significantly, Senate Republicans are hanging their House colleagues out to
dry. Democrats and Republicans on the
Senate Appropriations Committee have harmoniously crafted a complete set of
twelve bipartisan bills, some of which they reported out unanimously. Speaker McCarthy will have considerable
difficulty portraying a government shutdown as a crusade against out-of-control
Democratic spending if simply passing the Senate’s bipartisan bills is an obvious
option – all the more so if the House cannot pass any version of some of
the appropriations bills. Although
Republican appropriators have taken the lead in this effort, it would not be
possible without the tacit support of Senate Minority Leader McConnell. Et tu, Mitch? So where does this
all end? The House Freedom Caucus has created
a situation in which Speaker McCarthy can only move legislation with Democratic
support. And to get any Democratic support
for appropriations bills, he will have to revert to the spending levels he
agreed upon in June – which already require serious cuts – and drop the far-right
policy riders. That will cause him to
lose Republicans in droves, which in turn will force him to win the great
majority of the Democratic Caucus, as happened in June on the debt limit
deal. But getting all those Democratic
votes will require still-more concessions. That
appropriations legislation will infuriate the Freedom Caucus. If they then do not move to vacate the
Speaker’s chair after actions they have so clearly cast a betrayal, they will never
have credibility to threaten to oust Speaker McCarthy. A motion to vacate
his chair will present Speaker McCarthy will an unpalatable choice. He cannot possibly prevent at least five
Republicans – and likely many more – from voting to remove him. The only way he could survive is if Democrats
abstain in droves. And inducing
Democrats to do that will surely require even more concessions, likely in
private. It also will mean that, after nine
months of owing his gavel to the indulgence of the House Freedom Caucus, he
will henceforth owe his position to the indulgence of the House Democratic
Caucus. At that point,
Representative McCarthy will have to decide whether he prefers to be a
Republican speaker dependent on Democratic votes – novel federally although
with occasional precedent in the states – or to join John Boehner, Paul Ryan,
and Nancy Pelosi in an undiscovered country from whose bourn no Speaker returns. Perhaps the prospect of surrendering his gavel
will so puzzle his will that it will make him rather bear those ills he has than
fly to others that he knows not of? @DavidASuper1 Saturday, September 09, 2023
On Slippery Slopes
Gerard N. Magliocca
I understand three of the broad positions on the civil and criminal cases against Trump. One is that these cases should not be brought at all. Just stick to normal politics because anything else sets a bad precedent. I also understand my position, which is that Section Three disqualification is an appropriate response in part because it is more limited (and less dangerous) than using criminal law. I also understand (though I do not agree with) the "throw the kitchen sink" approach of using any legal option available. But I don't understand a fourth response. Disqualification would set a terrible precedent, but bringing criminal charges does not. How can that be? Consider some of the objections raised to disqualification. It will empower partisan local officials to make mischief. It will have a chilling effect on speech, It's not part of our democratic tradition. And so on. But all of these criticisms apply with ten times more force to using the criminal law against political candidates. Yet some people do not seem too troubled by that. So I'd be interested in hearing from people who (1) support the criminal cases against Trump; but (2) do not support the Section Three cases against him, as to their reasons. Thursday, September 07, 2023
Gender identity and political evil
Andrew Koppelman
Friedrich Hayek, one of the foundational theorists of the American right, warned us about the demonization of transgender people. I explain in a new column at The Hill. The Continuity of the Electoral and Judicial Means of Enforcing Section Three
Joseph Fishkin
Just to recap briefly where we are: Enrique Tarrio, the leader of the Proud Boys, was not physically present at the Capitol on January 6, 2021. But he clearly bore significant responsibility for causing the attack on the Capitol that day, and yesterday a federal judge sentenced him to 22 years in federal prison for seditious conspiracy. Couy Griffin, a minor figure in that same conspiracy, was at the Capitol that day (outside, anyway). A state court judge in New Mexico has removed him from his office as a county commissioner and barred him from holding future office on the ground that he engaged in insurrection in violation of Section Three of the Fourteenth Amendment (14.3). Will Baude and Michael Stokes Paulsen, two prominent law professors affiliated with the Federalist Society, argued recently from an originalist perspective—in the rare law review article to truly break through into mainstream media discussion—that Donald Trump similarly engaged in an insurrection by attempting to block the orderly transition of power, and that he too should therefore be barred under 14.3 from holding future federal office, including the presidency. A number of thoughtful scholars including Mark Graber and Gerard Magliocca on this very blog have made the case along with Baude and Paulson that in order to give force to 14.3, state and local decision-makers with the authority to decide who goes on the ballot should exclude Trump from the ballot. That would set up a court fight about the reach of 14.3 and whether Trump should be disqualified from office. Tuesday, September 05, 2023
Another 14th Amendment Panic
Gerard N. Magliocca
The Wall Street Journal has an editorial today entitled "The 14th Amendment Trump Panic" that argues against applying Section Three to his candidacy. The title is apt, though not for the reason that they give. Constitutional law goes through recurring 14th Amendment panics. A panic sets in when people realize that faithfully applying the Fourteenth Amendment might overturn longstanding practice. We've seen this story with federalism, race, women's rights, marriage, and other subjects. The panic eventually abates, but not without costs. We will see what happens this time. CFP: National Conference of Constitutional Law Scholars
Andrew Coan
Thursday, August 31, 2023
Religious Liberty as a Judicial Autoimmune Disorder: The Supreme Court Repudiates Its Own Authority in Kennedy v. Bremerton School District
Andrew Koppelman
Today’s Supreme Court is so predisposed to find discrimination against religion that it declared it to be present in a case where the discriminator was obeying the Court’s own commands. In Kennedy v. Bremerton, the defendant school district and the lower federal courts had faithfully followed Supreme Court authority. The Court had, until then, consistently insisted that lower courts are bound by Supreme Court precedent. In Kennedy, the Court attacked the basis of its own authority. Monday, August 28, 2023
The Relevance of Anti-Federalist Advocacy to Original Meaning
Andrew Coan
Saturday, August 26, 2023
Damn the Torpedoes: Disqualifying Donald Trump
Mark Graber
The qualifications for officeholding are among the
undemocratic, or at least antimajoritarian features of the Constitution of the
United States. Electoral College
majorities are barred from selecting as president a person who is less than
thirty-five years old, not born in the United States, not a citizen of the
United States, not a resident of the United States for at least fourteen years, or, while or after holding
various federal or state offices, participated in an insurrection or rebellion against the United States. Good
reason exists for thinking such qualifications a bad idea. John Seary has an interesting book arguing
that younger Americans ought to be constitutionally permitted to hold various
offices. Sandy Levinson and others think
the constitutional bar on persons born abroad creates second-class
citizens. Perhaps electoral college
majorities ought to decide whether former insurrectionists should hold
office. Section 3 of the Fourteenth
Amendment may be a bad idea whose time has passed if that time ever came. If popular majorities want to keep in office
a police chief who urged the assassination of police officers or elect a president who as president fomented an insurrection in order to
maintain office, the meaning of majoritarianism may be that they should have
their way. Holmes famously said his job
was to lead his fellows to Hell if that was their chosen direction. The
zeitgeist among some authors seems to be that disqualifying Donald
Trump under Section 3 is the bad idea, not that barring insurrectionists from
office is a bad idea or that qualifications for the presidency are a bad
idea. This claim comes in two
flavors. The first is that disqualification decisions should be made by Congress and certainly not by local election judges or state
secretaries of state. Local decision-making risks minoritarian extremism and checkerboard solutions, where Trump is on the ballot in some states and
not others. The second is that MAGA
forces must be defeated electorally. Disqualification will increase the
possibility of a civil war or at least civil disruption in the United States
initiated by violent members of the far right who perceive that their hero has been treated unfairly. A
congressional statute organizing disqualifying would be nice, but disqualification
for insurrection is in legal principle no different from disqualification for
being underage or not a citizen. No one clamored
for a federal statute preventing lawsuits disqualifying Barack Obama on the alleged
ground that he was born in Kenya. No one
insists on a federal statute before younger Americans are disqualified. American law at present permits checkerboard solutions, perhaps initiated by political extremists in state offices, respecting whether a candidate is constitutionally qualified for the presidency. No one until recently complained, even though we could easily imagine a national controversy over whether a person had actually resided in the United States for fourteen years or, purely hypothetically, whether a candidate for the presidency was born in Kenya. There is no law preventing a federal statute from being framed, debated, and passed immediately after our Representatives and Senators read this blog post (all members of Congress read Balkinization regularly). That Congress is gridlocked is hardly a reason to mandate political actors outside of Congress stay their hand. One reason for constitutionalizing the principle
that insurrectionists cannot hold office was the fear that Reconstruction Republicans
might temporarily lose control of Congress and statutes mandating
disqualification (and racial equality) would be repealed. The framers may have assumed legislative primacy, but they did not think all other actors could do was complain when Congress dithered. The
Supreme Court can also swoop in and make a decision creating a rule for the
entire country. Steven Vladeck will be
the first person to tell you that has been known to happen. The
MAGA crowd will be upset if Donald Trump is disqualified in some states. Some may turn to violence. They will be upset if Donald Trump is
disqualified in all states by the procedure of your choosing. Some may turn to violence. They will be upset if Donald Trump loses a
close election. Etc. They will be upset if Donald Trump loses an
election that every expert agrees is not particularly close. Etc., etc. The MAGA crowd would be as upset if Donald Trump was disqualified because unconverted evidence demonstrated, lo and behold, that he was born in Kenya. We are dealing with the kid in the schoolyard who
threw a temper tantrum and yelled “Cheater” whenever he or she lost. The kid yelled "Cheater" when the umpire called a close pitch a strike and when the final score was 15-1. Finding rules that
appeased that kid was pointless. The best you could do was apply the rules you thought fair and prepare to deal with the temper
tantrum when the kid lost. That MAGA must be
defeated politically in the long run does not debar any short-term solution. Trump will throw variations on the same temper-tantrum if he is disqualified as an insurrectionist in some states, disqualified as an insurrectionist in all states, disqualifying for being born in Kenya, or loses the presidential election from anywhere between one and four billion votes. If you think as a matter of constitutional
law or principle people who participate in an insurrection against the
government should not hold government office and that Donald Trump
participated in an insurrection against the government, you should endorse the
Section 3 process and be prepared for the fall out that will occur no matter
how MAGA forces are defeated. Friday, August 25, 2023
Procrastination Isn't Always Wisdom
Gerard N. Magliocca
I want to respond to an argument, exemplified by Ross Douthat's recent column in The New York Times, against using Section Three to disqualify Trump. (Andrew Coan offered some thoughtful comments on that argument in a post the other day). The argument is a practical one that says exclusion is dangerous in a democracy. It's wiser to just let the voters decide. David French has a column responding that this would be "appeasing" Trump's supporters. I don't like that loaded term. I have a different take. The "let the voters decide" argument is basically just a sophisticated version of kicking the can. Kicking the can is sometimes a wise solution. Maybe things will just work themselves out. Let's take a wait-and-see posture when the action being contemplated is broad. Thus, I understand the skepticism that some people have about disqualification, especially if they have only just started thinking about that option. The problem is that we've tried kicking the can on Trump's misconduct more than once. And things have gotten worse, not better. Let's go back to February 2020. An argument for a Senate acquittal in the first impeachment trial was "Let the voters decide." And that made sense. It was an election year. The case that Trump committed a high crime and misdemeanor was not so clear. (Indeed, I said in a post here that I was not convinced that he should be convicted.) The voters did decide, but then Trump refused to accept that verdict and (allegedly) committed crimes and (in my view) engaged in insurrection to stay in power. Now let's revisit February 2021. An argument for acquittal in the second Trump impeachment was "Let the voters decide." He was out of office, so the only point of an impeachment was to disqualify him from serving again. But the next election was three years away. Was it really necessary to bar him from office? Maybe he wouldn't run again. Maybe the voters wouldn't support him. Let's kick the can again. This did not work either. Instead, we face the dilemma of a strong presidential candidate under multiple criminal indictments, which creates an unprecedented and volatile situation heading into next year. Now many of the same people want to kick the can again. Don't apply Section Three to Trump. Let the voters decide. What could go wrong? At this point, this is just magical thinking. The third time is not the charm. UPDATE: I've added links to the Douthat and French columns. They are excellent presentations of the opposing views on this issue. Thursday, August 24, 2023
The Flawed Arguments for Privileging Federalist over Anti-Federalist Advocacy as Evidence of Original Meaning
Andrew Coan
Tuesday, August 22, 2023
The Original Meaning of "Federalism"
Andrew Coan
In a new paper called “Interpreting Ratification,” we challenge this conventional wisdom. Our challenge emerges from a historical account of the ratification debates that is in many ways familiar but emphasizes crucial nuances of nomenclature and background legal understandings that constitutional scholars have largely overlooked. In particular, the majority of delegates to the Philadelphia Convention clearly and expressly distinguished between a national government established by the People of the United States and a federal compact between sovereign states like the Articles of Confederation. They opted for the former in lopsided fashion, providing powerful evidence that the background assumptions of enumerationism did not go without saying in the founding era. To the contrary, an important subset of the ratifying generation—the nationalist Framers and their followers—understood the Constitution according to a very different set of background assumptions. Further, the text that the Convention ultimately agreed on left ambiguous whether the enumerated powers of the new national government were exhaustive or illustrative. Monday, August 21, 2023
The Politics of Disqualifying Trump
Andrew Coan
Ross Douthat has waded into the Section Three conversation, siding with Eric Segall against his fellow conservatives Will Baude and Michael Stokes Paulsen. In particular, Douthat worries that "not enough people do clearly see what’s risked in these kinds of proceedings, that many of Trump’s opponents still regard some form of legal action as a trump card." I don't agree with all of Douthat's analysis, but I share his core concern, which I expressed in a post on January 12, 2021: What about the actual politics of invoking Section Three? One possibility, perhaps the most likely, is that a legal bar on future federal office-holding would prevent a third Trump campaign from ever getting off the ground (assuming he has not already taken care of this himself). But there is another, darker possibility. If Trump wants to run again and retains--or regains--the loyalty of his base, such a bar would effectively foreclose a large and highly motivated segment of the American public from pursuing its goals through electoral politics. That is a momentous and highly fraught step for any democracy to take. It is perilously close to banning one of the two major political parties. Douthat is strongly skeptical of attempts to invoke Section Three. My own view is more equivocal. Section Three is unpredictable and dangerous, but so are the alternatives. As my original post concluded: The broader point is a familiar one. No legal strategy, however apparently decisive, is capable of dissolving the dangers inherent in our deep national divide. The only possible solutions are political, though law is a powerful, if double-edged, tool for reshaping our politics. Section Three is one more example. This is not an argument against its invocation, merely for proceeding with our eyes open. I have changed my mind about many things in the past two years, but there is not much I would change about this post if I were writing it today. Wednesday, August 16, 2023
Not Too Hot, Not Too Cold, and Not At All
Gerard N. Magliocca
One objection to applying Section Three of the Fourteenth Amendment to Donald Trump is that democracy requires that he be permitted to run. I have a draft paper responding to this argument, though I will be revising that in light of Trump's quadruple indictment and the Baude and Paulsen paper. But let me tackle one aspects of that now. There is no limiting principle to the democracy argument against Section Three. Suppose that Trump was doing poorly in the polls. Then people would say: "Oh, he shouldn't be disqualified. There's no harm in letting him run. Democracy will resolve the issue." Now suppose that he was doing well in the polls. Then people would say: "Oh, he shouldn't be disqualified. There's a harm in not letting him run. Vox populi, Vox Dei." Where, then, is the sweet spot in between where he should be disqualified? The answer is that there is none and there cannot be one under the strong form of the democracy principle. Some people are candid about this. Alan Dershowitz, for example, has an essay arguing that we should ignore Section Three. There are constitutional precedents for this. They are just bad ones that are almost all about the Reconstruction Amendments. I'm quite unimpressed with the claim that we should not apply the text as written because too many people will be upset. We've seen that tragedy before. UPDATE: Here is my latest essay on Section Three, in which I explain why an appropriate state Secretary of State would be acting in a non-partisan way by declaring Trump ineligible now. Public-Meaning Originalism and Speaker Sincerity
Andrew Coan
Monday, August 14, 2023
The Definition of an Insurrection
Gerard N. Magliocca
One comment that people make about Section Three is that an insurrection only involves an attempt to overthrow the government or widespread resistance to government authority. But that's not true, If you look at what people in the ante-bellum era described as insurrections, events that fell well short of that standard (and well short of what happened on January 6th) were called insurrections. Let me give a simple example. The federal criminal insurrection statute does not define that term. But there are state criminal insurrection statues that do. Here is Iowa's. Does January 6th meet this standard? Of course it does. Now that doesn't mean that Iowa's law is the constitutional standard. But Iowa's more modest standard fits well within ante-bellum discourse. More to come . . . Interpreting Ratification
Andrew Coan
(coauthored by David S. Schwartz) For two centuries, constitutional interpreters have relied on statements from the ratification debates—especially The Federalist—as persuasive authority in constitutional interpretation. This reliance, which has only increased with the rise of public-meaning originalism, mistakes Federalist campaign literature and oratory for objective and disinterested constitutional interpretation, and mistakenly dismisses the interpretations of Anti-Federalists as irrelevant. All of this significantly undermines a principled originalist case for limiting federal power. It also calls into question the resolving power of originalism as a practical method for deciding controversial cases. Both of these implications would represent seismic shifts in U.S. constitutional law. You can read the whole thing here. Saturday, August 12, 2023
The Sleeping Giant is Awake
Gerard N. Magliocca
In 1867, Senator Charles Sumner described the Guarantee Clause as "a sleeping giant" awakened by the Civil War that gave Congress the power to erase slavery's stain. In 2023, Section Three of the Fourteenth Amendment is the sleeping giant awakened by the January 6th insurrection (and by Will Baude and Michael Stokes Paulsen) that gives courts the power to erase Donald Trump's stain. I am very grateful for the excellent new article by Professors Baude and Paulsen and for the incredible response to their work. (Over 28,000 downloads by last count!) Until recently, only a hanful of scholars took Section Three and its application to Trump seriously. (Mark Graber, Bruce Ackerman, Josh Blackman, Seth Barrett Tillman, and myself). Five is great for a dinner party, but not for considering a vital constitutional question. We need a lot more discussion to help the Supreme Court and the country reach the best decision possible. And make no mistake--this issue will be at the Court soon and must be decided on the merits to avoid electoral chaos. I am also confident that Trump will have a fair opportunity to contest the claim that he is ineligible to serve in office. I say that because I testified in the Section Three eligibility hearing for Representative Marjorie Taylor-Greene last year. She also testified, both sides were represented by able counsel, and the ALJ issued a thoughtful opinion concluding that she was eligible. His ruling was affirmed on appeal. The sky did not fall by letting state officials carry out their constitutional duties. I'll have more to say about Baude/Paulsen and some of the responses to their paper next week. UPDATE: I’ve tweaked this post since the first draft, in part because the download figure keeps shooting up. Thursday, August 10, 2023
Baude and Paulsen on Section Three of the Fourteenth Amendment
Gerard N. Magliocca
The paper is here. The New York Times article is here. Here is the Abstract: Section Three of the Fourteenth Amendment forbids holding office by former office holders who then participate in insurrection or rebellion. Because of a range of misperceptions and mistaken assumptions, Section Three’s full legal consequences have not been appreciated or enforced. This article corrects those mistakes by setting forth the full sweep and force of Section Three. UPDATE: My papers on Section Three are here and here. The Burdens of Judgment
Andrew Coan
Wednesday, August 09, 2023
Frederick Douglass as Constitutionalist
JB
Sandy Levinson and I have posted a draft of our latest essay, Frederick Douglass as Constitutionalist, on SSRN. Here is the abstract: Frederick Douglass is an important symbol in American constitutional memory, cited in U.S. Supreme Court opinions and invoked by people with very different political ideologies. In this essay, we explore Douglass's constitutional philosophy by contrasting his views about fidelity to the U.S. Constitution and the rule of law with those of Abraham Lincoln and those of John Brown, who led the 1859 raid on Harper's Ferry, Virginia to incite an armed revolt against slavery. Douglass's views about the U.S. Constitution changed over the years, and were often in tension with each other, but he was at best an ambivalent constitutionalist. In many respects his views about the Constitution were closer to those of John Brown, who believed that violence was necessary to redeem constitutional government, than those of Abraham Lincoln, who advocated obedience to law in his Springfield Lyceum speech and who accepted slavery as the price of constitutional government in his First Inaugural address. Although politicians and judges today may prefer a sanitized version of Frederick Douglass, his actual views about how faithful one should be to an unjust constitution raise important questions for us today. Thursday, August 03, 2023
Can the Voters Pardon Donald Trump?
Gerard N. Magliocca
A narrative is emerging that the criminal cases against Donald Trump mean that the next election will be about whether the voters want to pardon him. David French had an op-ed in The New York Times last week in which he said that 2024 is a choice between Trump and the rule of law. This narrative is wrong. Trump cannot be pardoned by the voters unless he is eligible to be elected. The Section Three/14th Amendment issue must be resolved in his favor (or Congress must give him amnesty) before the voters can render a judgment. In a sense, an organic two-step process is developing to test the application of the criminal law to a major presidential candidate. We are facing these difficult choices in part because prosecutors are exercising their discretion foolishly. The Senate's failure to convict in the second impeachment trial and Congress's failure to provide for a swift resolution of the Section Three issue created a vacuum for the criminal law to fill. But that is not an excuse. The pending cases should not have been brought. If Trump is convicted and then elected, people will stop saying Pyhrric victory and start saying Smithic victory. UPDATE: Some readers asked me to say more about why the criminal cases are mistaken. Since there are many cases and I have many reasons, I'll need another post for that. For now, though, consider this famous explanation of why prosecuting a former president is a bad idea. Monday, July 24, 2023
Careening Towards a Government Shutdown
David Super
We are still more
than two months away from the end of the federal fiscal year on October 1, yet imagining
a way to avoid a partial government shutdown is getting extremely
difficult. The House and Senate are
hurdling in opposite directions, and numerous Members of the House Freedom
Caucus are openly reveling in the prospect of a government shutdown. And with both sides feeling burned from this
Spring’s deal to raise the debt limit, no easy path toward resolution appears
available. Not just a shutdown, but a
rather long one, seems likely. And
however it ends could leave lasting changes in how legislation is enacted. The Freedom
Caucus, which vehemently objected to the levels of discretionary spending
Speaker McCarthy agreed to in the debt limit deal, has been demanding that he
break that deal. To show that they mean
business, they shut down the House over an unrelated, political messaging bill until
the Speaker agreed once again to do their bidding. This has meant
having the House Appropriations Committee writing spending bills far below the
agreed-upon levels. Rounding up even
Republican votes for spending bills requiring such deep cuts in services would
be difficult. The Appropriations
Committee therefore has sought to cushion these cuts by rescinding large
amounts of money for carbon emissions reductions from last year’s Inflation
Reduction Act (IRA). Further, the House
Appropriations Committee has added numerous policy riders wholly unacceptable
to Democrats (e.g., barring aid to LGBTQ community centers and prohibiting
over-the-counter abortion drugs). Although
Republican Members in competitive districts have expressed unease at the
funding levels, the IRA rescissions, and some of the policy riders, so far they
have fallen into line and voted for the bills.
This week, the Speaker plans to bring the floor two of these bills: the Agriculture Appropriations bill (which
appears to lack sufficient funding to avoid eligibility cuts in the Special
Supplemental Nutrition Program for Women, Infants and Children (WIC)) and the Military
Construction/Veterans’ Affairs bill (which skimps on several politically
sensitive programs). We could see
endangered Republicans finally push back, but it seems far more likely that instead
Freedom Caucus Members will insist on even more extreme policy riders and the
rest of the caucus will acquiesce. At the same time,
the Senate Appropriations Committee is moving forward on a bipartisan basis
with bills that match the spending levels in the debt limit deal. This requires some significant cuts, but
nothing like the draconian House proposals.
The Committee’s leadership also has proposed to set aside more than $13
billion for emergency funding that, under budget process law, is not subject to
the caps on discretionary spending. Some
of this likely would be spent on aid to Ukraine and responding to extreme
weather events in the U.S. With August recess
approaching, everyone recognizes that neither chamber will come close to
finishing its appropriations bills, much less resolving the differences between
them in a House-Senate conference committee, by September 30. In a normal year, this would lead to a
short-term continuing resolution (CR) to keep the government funded at the
prior year’s levels (unadjusted for inflation) for a few weeks to allow Congress
to finish its work. This year,
however, the House Freedom Caucus is demanding that any CR impose a one percent
across-the-board spending reduction.
Some Freedom Caucus Members are suggesting that, as a partial government
shutdown looms, they should raise the price of their assent to a short-term CR
with either deeper cuts or policy riders.
They clearly believe that the rest of Congress is panicky about a
partial government shutdown and that this gives them leverage to achieve a
large part of their agenda. Yet it is far from
clear that Democrats would be willing to break precedent and accept a CR making
nominal cuts in spending levels. Defense
hawks, too, are unhappy about across-the-board cuts because they won caps on Pentagon
spending in the debt limit deal that are much more generous than those for
domestic programs. More broadly, nobody
has much incentive to make concessions to get a CR with such dismal prospects
of agreement on year-long appropriations when the CR ends. If we are going to have a partial government
shutdown anyway, many would say, we might as well get it over with. Superficially, this
government shutdown would be among the very easiest to resolve: the two sides already have an agreement. The parties simply need to take the Senate
appropriation bills (which conform to the agreement the parties reached in May)
and reallocate funds within them to reflect a compromise between House and
Senate programmatic priorities. But the
House Freedom Caucus does not feel bound by that deal, and the Speaker feels
more bound to please the House Freedom Caucus than he does to honor his deal
with the President. The ultimate
resolution of the government shutdown could take any of several forms. If public opinion turns sharply against the
Republicans, Speaker McCarthy (likely under strong behind-the-scenes pressure
from Senate Republican Leader McConnell) could bring to the House floor a
spending bill that essentially conforms to the debt limit deal. If he did, it would surely have more than
enough Democratic and Republican votes to pass even with fierce Freedom Caucus
opposition. That, however, would lead
the Freedom Caucus to shut down the House again, likely for longer than it did
this summer. The House has little
pressing business this year after it finishes the spending bills, so perhaps
being shut down would be tolerable. If Speaker
McCarthy decides to stand by the Freedom Caucus, Democrats could file a bill
conforming to the debt limit deal (or simply the Senate appropriations bills) with
a rule to bring that legislation to the floor and then seek 218 Members’
signatures on a discharge petition. That
would require obtaining the signatures of four House Republicans. If the partial government shutdown is polling
very badly and their seats are looking quite vulnerable, perhaps four would
sign the discharge petition and then vote for the bill. The Freedom Caucus, however, would then
demand that these “RINOs” be stripped of their committee assignments and cut
off from the Party’s support during likely primary challenges. Few Members will be so sure they are doomed
in the general election that they will subject themselves to brutal primaries
and the loss of all privileges within the House. This is why, to date, every supposed “rebellion
of the moderates” has proven to be so much sound and fury signifying nothing. Few Members of Congress are willing to be but
a walking shadow, a poor player that struts and frets their hour upon the stage
and then is heard no more. If polling goes
against the Democrats, they could concede to some of the Freedom Caucus’s
demands. Quite apart from their views on
the substance, however, they have strong institutional reasons not to do so
even if the government shutdown is causing great practical and political
damage. Repeat players cannot allow
their counterparts to disregard deals that they have made. Speaker McCarthy knew the Freedom Caucus
would be enraged when he made the debt limit agreement; if Democrats allow him
to disregard that deal, the same thing will keep happening because the Freedom
Caucus has no shortage of rage and the Speaker has no shortage of fear. So Democrats are wildly unlikely to give significant
ground. More dramatically,
the partial government shutdown could lead to a procedural re-alignment in the
House. Speaker McCarthy could make a
deal with Democrats not to bring legislation to the floor under abusive,
one-sided rules (something every speaker, Democratic and Republican, has done
since time immemorial). And in return, the
Democrats could promise to supply the votes to allow legislation to reach the
floor (even if they later vote against that legislation on the merits) and to
abstain in any vote to declare the Speaker’s chair vacant. That would not by any means be a coalition
government: Speaker McCarthy and his majority
would continue to pursue, and mostly pass, far-right initiatives. But Democrats would get up-or-down votes on
their proposals, too, and no one faction could lock down the House. And the partial government shutdown would
end. Finally, the
government shutdown might not end in legislation at all. The Fiscal Control Act that raised the debt
limit also provided that an automatic CR would take effect January 1 if
Congress has not enacted all twelve annual appropriations bills by that
time. The automatic CR would give every
program 99% of the funding it received in fiscal year 2023. For non-defense programs as a group, that
would be dramatically better than what the House Republican appropriations
bills offer; for Defense, that would be meaningfully worse. If it becomes clear that no comprehensive
deal is possible, the parties might agree on relatively minor shifts of funding
within each category. Whether the Speaker
directly defies the Freedom Caucus, a few endangered Republicans break ranks to
sign a discharge petition, the Democrats acquiesce in the principle that the
Speaker is not bound by his own deals, or the mechanics of controlling the
House floor change, this government shutdown will significantly change the way
we do politics in this country, possibly for a long time. With the Freedom Caucus feeling betrayed and
heavily dug in, a more mundane resolution to the shutdown seems improbable
unless Congress simply allows the automatic CR to take effect. And Congress passing no particularized
appropriations bills for a year would also be a sharp break with precedent –
and a likely if unfortunate model for future years. Partial government
shutdowns are bad for almost everyone except attention-seeking House Freedom
Caucus Members (and perhaps a law professor preparing to submit an article on Preventing
Fiscal Calamity to the law journals).
But this shutdown seems very nearly inevitable. @DavidASuper1
|
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Balkin, Constitutional Redemption: Political Faith in an Unjust World (Harvard University Press, 2011) ![]() Gerard Magliocca, The Tragedy of William Jennings Bryan: Constitutional Law and the Politics of Backlash (Yale University Press, 2011) ![]() Bernard Harcourt, The Illusion of Free Markets: Punishment and the Myth of Natural Order (Harvard University Press, 2010) ![]() Bruce Ackerman, The Decline and Fall of the American Republic (Harvard University Press, 2010) Balkinization Symposium on The Decline and Fall of the American Republic ![]() Ian Ayres. Carrots and Sticks: Unlock the Power of Incentives to Get Things Done (Bantam Books, 2010) ![]() Mark Tushnet, Why the Constitution Matters (Yale University Press 2010) Ian Ayres and Barry Nalebuff: Lifecycle Investing: A New, Safe, and Audacious Way to Improve the Performance of Your Retirement Portfolio (Basic Books, 2010) ![]() Jack M. Balkin, The Laws of Change: I Ching and the Philosophy of Life (2d Edition, Sybil Creek Press 2009) ![]() Brian Z. Tamanaha, Beyond the Formalist-Realist Divide: The Role of Politics in Judging (Princeton University Press 2009) ![]() Andrew Koppelman and Tobias Barrington Wolff, A Right to Discriminate?: How the Case of Boy Scouts of America v. James Dale Warped the Law of Free Association (Yale University Press 2009) ![]() Jack M. Balkin and Reva B. Siegel, The Constitution in 2020 (Oxford University Press 2009) Heather K. Gerken, The Democracy Index: Why Our Election System Is Failing and How to Fix It (Princeton University Press 2009) ![]() Mary Dudziak, Exporting American Dreams: Thurgood Marshall's African Journey (Oxford University Press 2008) ![]() David Luban, Legal Ethics and Human Dignity (Cambridge Univ. Press 2007) ![]() Ian Ayres, Super Crunchers: Why Thinking-By-Numbers is the New Way to be Smart (Bantam 2007) ![]() Jack M. Balkin, James Grimmelmann, Eddan Katz, Nimrod Kozlovski, Shlomit Wagman and Tal Zarsky, eds., Cybercrime: Digital Cops in a Networked Environment (N.Y.U. Press 2007) ![]() Jack M. Balkin and Beth Simone Noveck, The State of Play: Law, Games, and Virtual Worlds (N.Y.U. Press 2006) ![]() Andrew Koppelman, Same Sex, Different States: When Same-Sex Marriages Cross State Lines (Yale University Press 2006) Brian Tamanaha, Law as a Means to an End (Cambridge University Press 2006) Sanford Levinson, Our Undemocratic Constitution (Oxford University Press 2006) Mark Graber, Dred Scott and the Problem of Constitutional Evil (Cambridge University Press 2006) Jack M. Balkin, ed., What Roe v. Wade Should Have Said (N.Y.U. Press 2005) Sanford Levinson, ed., Torture: A Collection (Oxford University Press 2004) Balkin.com homepage Bibliography Conlaw.net Cultural Software Writings Opeds The Information Society Project BrownvBoard.com Useful Links Syllabi and Exams |