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
I have posted a draft of my forthcoming essay, The Three Laws of Robotics in the Age of Big Data, on SSRN. This essay was originally presented as the 2016 Sidley Austin Distinguished Lecture On Big Data Law And Policy at the Ohio State University Moritz College of Law on October 27, 2016.
Here is the abstract:
* * * * *
In his short stories and novels, Isaac Asimov imagined three law of robotics programmed into every robot. In our world, the "laws of robotics" are the legal and policy principles that should govern how human beings use robots, algorithms, and artificial intelligence agents.
This essay introduces these basic legal principles using four key ideas: (1) the homunculus fallacy; (2) the substitution effect; (3) the concept of information fiduciaries; and (4) the idea of algorithmic nuisance.
The homunculus fallacy is the attribution of human intention and agency to robots and algorithms. It is the false belief there is a little person inside the robot or program who has good or bad intentions.
The substitution effect refers to the multiple effects on social power and social relations that arise from the fact that robots, AI agents, and algorithms substitute for human beings and operate as special-purpose people.
The most important issues in the law of robotics require us to understand how human beings exercise power over other human beings mediated through new technologies. The "three laws of robotics" for our Algorithmic Society, in other words, should be laws directed at human beings and human organizations, not at robots themselves.
Behind robots, artificial intelligence agents and algorithms are governments and businesses organized and staffed by human beings. A characteristic feature of the Algorithmic Society is that new technologies permit both public and private organizations to govern large populations. In addition, the Algorithmic Society also features significant asymmetries of information, monitoring capacity, and computational power between those who govern others with technology and those who are governed.
With this in mind, we can state three basic "laws of robotics" for the Algorithmic Society:
First, operators of robots, algorithms and artificial intelligence agents are information fiduciaries who have special duties of good faith and fair dealing toward their end-users, clients and customers.
Second, privately owned businesses who are not information fiduciaries nevertheless have duties toward the general public.
Third, the central public duty of those who use robots, algorithms and artificial intelligence agents is not to be algorithmic nuisances. Businesses and organizations may not leverage asymmetries of information, monitoring capacity, and computational power to externalize the costs of their activities onto the general public. The term "algorithmic nuisance" captures the idea that the best analogy for the harms of algorithmic decision making is not intentional discrimination but socially unjustified "pollution"-- that is, using computational power to make others pay for the costs of one's activities.
Obligations of transparency, due process and accountability flow from these three substantive requirements. Transparency—and its cousins, accountability and due process—apply in different ways with respect to all three principles. Transparency and/or accountability may be an obligation of fiduciary relations, they may follow from public duties, and they may be a prophylactic measure designed to prevent unjustified externalization of harms or in order to provide a remedy for harm.
1. Culture wars do not end.
Culture wars in the United States broke out during the 1630s when Anne Hutchinson organized religious meetings and Roger Williams insisted on a complete
separation of church and state. They have not ended and will not end. Sometimes the terrain shifts. We no longer burn women accused of
witchcraft, but we debate whether referring to women as witches is gender harassment. Political and legal victories that settle
some issues open up others. Successes in
the campaign for same-sex marriage intensified controversies over whether state
anti-discrimination laws should cover bakers, photographers and others who
refuse to offer their wedding services to same-sex couples.
2. Progressives have the momentum in contemporary culture wars. The terrain on which the culture wars are fought has been shifting in favor of progressives for more than a half century. A regime in
which historically disadvantaged persons complain of repeated microaggressions
is better than a world in which historically disadvantaged persons complain of being enslaved, sent to concentration camps, deprived of all political rights and imprisoned
for loving the wrong persons. A regime in which citizens debate if and where government may display the Ten Commandments/Statements is better than a regime in which citizens debate whether persons who reject the first five commandments/statements ought to be murdered or merely deprived of most political rights. Progressives
have achieved this better regime in part, one hopes, because their causes have
been just and human beings have some capacity for justice, and in part, one
recognizes, because most economic, social, and education elites in the
United States are committed to some version of secularism and share liberal (not radical) conceptions of
race, gender, religion, and sexuality.
Elites tend to win in democratic politics. The culture wars are no exception
to this rule.
3. The culture wars have been a progressive political disaster and are likely to be for the foreseeable future. The culture wars have diminished the Democratic Party's capacity to pursue economic justice. Progressive positions on the culture wars and economic justice are consistent if not complementary in theory, but the culture wars in practice
have had the effect of decentering previous progressive commitments to improving the lot of less
fortunate citizens. Progressive legal theorists who during the 1960s explained why the Constitution guarantees poor
persons basic necessities have been replaced by progressive legal theorists who
explain why the Constitution entitles all persons to use the
bathroom of their choice. Progressives carefully scrutinize judicial nominees for their views on abortion, but rarely examine their positions on
labor unions. The end result is that the
Democratic Party of Barack Obama and Hillary Clinton is a poorer vehicle for
pursuing economic justice than the Democratic Party of
Franklin Roosevelt and Lyndon Johnson.
Republicans have taken advantage of these changes in Democratic Party
priorities. The party of Reagan/Trump often does little
more than slow down progressive gains in the culture wars, but that is enough
to attract crucial swing voters who no longer believe that Democrats have much
to offer communities ravaged by globalization and new service economy. Republicans may be a half step behind the general public on the culture wars, but too often Democrats are perceived as being two steps ahead. Compare the successes from 2000-2016 of the candidates who celebrated their commitment to same-sex marriage and the candidates who celebrated their opposition to same-sex marriage.
4. Who is winning the culture wars depends on the
measure for success. If the measure of success is policy change, progressives are sitting pretty with Trump
more likely to stall further progress somewhat than reverse the clock to 1972
(the year before Roe v. Wade) or 1953 (the year before Brown). If one focuses on trends in national elections, the result is a progressive slaughter. The Clintonite strategy of appealing to secular moderates has enfeebled the Democratic Party as a vehicle for economic justice and moved crucial swing voters rightward to the party that shares their cultural values.
This is not a cry for progressives to call a truce in the
culture wars as much as a call for progressives to recognize how the culture
wars, while reshaping the United States for the better, have also reshaped
progressivism and American electoral politics for the worse. The challenge for progressives in
the immediate future is to find ways to continue fighting for basic human
dignity while moving the bread-and-butter issues that once mobilized Democratic
Party voters back to the center of reform movements.
Richard Schragger, Micah Schwartzman, and Nelson Tebbe
We are less sanguine than Mark Tushnet
that the "culture wars" are over and progressives
have won, as we argue in a recent
piece in Vox. Certainly, Mark is right that
there has been a decided cultural shift in the U.S. regarding same-sex marriage.
But this achievement is politically contingent. Depending on the time horizon,
LGBT rights may still be in play, as are reproductive rights, religious
accommodations, and the scope of religious disestablishment.
Consider the long term first. Mark
acknowledges that if Trump has the opportunity to make two (or more) appointments
to the Supreme Court, affirmative action and reproductive rights could be on
the table. But the same could be said for same-sex marriage—there’s no
guarantee that Obergefell would
survive a Trump Court. In fact, many other aspects of the so-called “culture
wars” could be unsettled if that happens: Employment
Division v. Smith and school prayer, for starters. Now maybe Mark is right
that political support for same-sex marriage and other rights is sufficient to ensure
that any such legal reversals are temporary. But we are less confident about
making predictions that stretch that far into the political future.
A Trump Court would also uphold the
legislative changes that are coming in the near term—and we are sure to see a
continuation of “culture war” conflict around these laws. The religious freedom
legislation being contemplated by this Congress implicates basic civil rights. Most
immediately, Senators Ted Cruz and Mike Lee have pledged to
reintroduce the First Amendment Defense Act.
Read broadly—and some sympathetic courts will read it broadly, especially after
President Trump has made further appointments to them—the legislation would
permit religious organizations, including for-profit companies, to discriminate
in myriad ways. A radical version of FADA has already been enacted in
Mississippi. Mark’s prediction that FADAs will face legal challenges has proven
correct in that case—a federal trial court struck down the Mississippi FADA in Barber v. Bryant. Yet that decision is
now on appeal in the Fifth Circuit, where it is far from certain to be affirmed.
Beyond FADA, moreover, the Russell Amendment will likely return, as we point
out in our Vox piece.
Even without two appointments, the
federal FADA may well be upheld. Consider that conservatives have won all of
the major church-state decisions in the last decade, outside same-sex marriage:
Hosanna-Tabor, Hobby-Lobby, Town of Greece—and before
that, ACSTO v. Winn and Hein v.
Freedom from Religion Foundation, which both significantly restricted
standing to raise Establishment Clause challenges. (Holt v. Hobbs and O Centro
were not politically charged, because they protected members ofreligious minorities and did not involve
harms to third parties.) In these cases, the Court expanded free exercise
or narrowed disestablishment, including by closing down avenues for objecting
to state funding of the religious mission.
Even if all the achievements of the
LGBT and women’s equality movements remain in place, moreover, there are
significant opportunity costs. Remember that LGBT persons are still not explicitly protected under federal civil rights laws concerning employment, housing, or
public accommodations. How long will Americans have to wait for those kinds of
basic guarantees? If the culture wars were over and progressives had won, we
would expect a quick resolution of that unfinished business. Instead, civil
rights law will move in the opposite direction—the EEOC’s interpretation of
existing laws to protect LGBT people will be quickly reversed, presumably, as
will President Obama’s 2014 Executive Order protecting LGBT workers against
employment discrimination by federal contractors. We could add many more
examples of expected reversals on civil rights questions.
Mark may be reading the cultural
mood of the country correctly, at least in the long term—though Trump's
election illustrates the contingency of all aspects of the progressive project.
From our perspective, it looks like Americans will be battling the “culture
wars” for some time to come. In the short term, and in the long term if the
Court’s composition changes dramatically, America could look more like the religious
nation that some of Trump’s advisors and supporters envision.
One feature of the hate mail I've received (as well as the modestly more respectable responses) to my post on abandoning defensive crouch liberalism is gloating about the implications of the election's result. (Another feature is a systematic misreading of the post as advice to liberal judges rather than to liberal academics -- a misreading that does not give one a great deal of confidence in those who assert that they are interested in interpreting the Constitution's text as written; if they can't read a blog post's text accurately, why should we think that they can read the Constitution's text accurately?) This article, in which I'm quoted, examines the current state of the discussion reasonably dispassionately, I think. So, now I'm going to double down on the point that clearly was most annoying -- the claim that the culture wars are over, and that liberals won.
The most obvious place to begin is with gay marriage. No one -- and I mean literally no one -- who has responded to the post claims (nor, I believe, thinks) that there's any chance whatsoever that gay marriage is going to go away. This is not a throwaway or an incidental point -- the very thing that the gay rights movement worked for, for decades, is now simply off the table, with a victory for our side.
Next, multicultural education. That's not going away either, and again I doubt that anyone thinks that it is, aside from some tinkering around the edges.
Third, transgender rights. Here the main point is that this is where the fight is occurring. Who would have imagined even a decade ago that there would be a major battle -- which, for the moment, we're winning -- over the right of transgender young people to use a specific school bathroom? We haven't won this battle yet, and might not do so in the next year or two, but the fight (to continue the military metaphor) is occurring deep within "their" territory.
Fourth, gay rights more generally. Here's where most of the gloating appears to be occurring. But, notably, it's of an extremely limited sort. Again, no one appears to be contending that businesses should be allowed to discriminate against the LGBTQ community generally, for example simply because the owners think that the behavior they think associated with members of that community is simply "icky." Indeed, a lot of the pushback to my claim includes what now seem to be standard disclaimers that the responders "of course" oppose discrimination against the LGBTQ community. Again, consider how far that shows our side has moved into their territory.
But, what about accommodations for those with religious objections to providing business services to members of that community? Here everything turns on details, which the gloaters seem to ignore. From the outset I thought -- and wrote, but of course no one paid attention to it -- that we were likely to end up with a limited form of accommodation. I thought that it would be for relatively small owner-operated businesses whose owners had religious objections to providing what I'd describe loosely as "expressive-related" services. And I still think that's where we're going to end up, though there will be variations in the details -- size, what counts as an "expressive-related" service, and the like. For me, this sort of accommodation was itself an indication of the "we won" position.
What about broader statutory accommodations, which would make religion-based objections the grounds for more general discriminatory policies? Does anyone think that a statute allowing Chick-Fil-A to refuse service
to members of the LGBTQ community because (were it true) the
company's owners had a religious objection to selling them sandwiches would have any chance of being enacted? I don't. Yet, that's what some proposed statutes would allow. I have in mind the federal "First Amendment Defense Act" (which Doug Laycock appears to believe goes too far -- and which, even so, is a quite indirect protection of the asserted First Amendment rights) and state analogues. Here I have several predictions: (a) The federal statute is quite unlikely to be enacted, though it might be. (b) If it is, and if similar state statutes are enacted, they will be given extremely narrow interpretations. (c) Alternatively, if they are enacted, they will be held unconstitutional precisely because of their breadth. There is some evidence supporting these predictions, in the political difficulties encountered when broad statutes in Indiana, North Carolina, Georgia, and Arizona were proposed and/or enacted.
Finally, affirmative action and abortion. Here my point is much more contingent: Until Anthony Kennedy leaves the Court, or Trump gets to make two nominations to the Court, nothing's going to happen to change the current state of the law. The Court decided Fisher and Whole Woman's Health last year precisely because (I assume -- I have no inside information) its members knew that simply replacing Justice Scalia wasn't going to alter the results. And, exactly for that reason, the political fight over the second appointment -- if it happens -- is going to be much more contentious than anything we've seen so far, which is saying something.
Here are some additional military metaphors. The gloaters are like Robert E. Lee preparing for the the battle at Gettysburg -- they expect to win, of course, but they're going to be surprised (I think). And of course there are going to be continued skirmishes -- like guerilla warfare after Appomattox -- some of which we might lose. But, taking everything into account: The culture wars are over, and we won.
With the Electoral College set to vote in just a few days, the debate over the role of Presidential Electors has reached a fever pitch. Should this year’s Electors follow longstanding norms and rubberstamp their state’s popular vote winner, or should they buck tradition and dump Trump? Missing from these discussions is an alternative that seems tailor-made for the age of Trump. Perhaps Electors should do what Trump himself would likely do in their shoes: negotiate.
Encouraging Electors to negotiate with a would-be President may be a way to reconcile, at least in part, our competing instincts about the Electoral College’s function. Negotiations are an option because, as the dump Trump contingent correctly observes, the Constitution does not require Electors to ratify state popular vote outcomes. Constitutionally speaking, Electors are free agents.
Why it's so difficult to get the Electoral College to Dump Trump
I've read a lot of scenarios recently in which in which the Electoral College saves the day and prevents Trump from becoming President. The problem is that they neglect very serious collective action problems that are built into the structure of the Electoral College. I'm not saying you can't get around them, just that they pose genuine difficulties, and most people who write about the issue aren't paying enough attention to them.
Here's the basic idea: To deny Trump the presidency in the Electoral College, you need to create an unbreakable cartel of 37 Republican electors who were pledged to vote for Trump but who decide not to do so. (306-269=37). Democratic electors don't add anything to the cartel, because they don't reduce Trump's vote total.
The problem is that it's very hard to form such a cartel in the first place, and even if it does form it's pretty easy to cause people to defect from it.
For purposes of this blog post, let's put aside the very real concerns that the electors may be bound by state law, or that they will face legal sanctions if they don't vote for Trump, or that states will replace them as soon as they find out what they are up to. That's an interesting set of legal debates, but it's not central to my argument. Let's suppose that there are no such obstacles and that state law doesn't act as a disincentive to any elector. Let's assume that electors are perfectly free to vote for someone other than Trump if they think he would be a disaster.
Even so, you still have to form the cartel-- that is, an agreement among at least 37 Republican electors. It's hard to do this because the electors don't meet in a single location so they can't deliberate as a single body. This was a fateful decision by the Philadelphia Convention. They decided that it was too difficult to have the electors travel to the nation's capital to perform a single task (travel was very difficult and hazardous in those days); so instead they decided that each state's electors would meet separately in each state. This makes deliberation within state delegations easy, but deliberation across state delegations hard. (Compare Congress, which meets in one place, and in which such deliberations happen all the time.)
Fortunately, however, interstate travel is easy today, and we have telecommunications and the Internet. So deliberation across state lines is much, much easier than it was at the Founding. Even so, somebody has to arrange a meeting at which all or most of the relevant electors can deliberate and agree to form a cartel. And you need easily understood procedures and focal points to make it easy for electors to agree on a common course of action. (Thomas Schelling is smiling down from heaven at this point.) But in this case, there are no easily agreed-on procedures and focal points for collective action among the electors. (The lack of easily agreed-on focal points was one reason why it was so hard for Republicans to get rid of Trump during the primary season.)
Don't get me wrong: You could get around these organizational problems, but you'd have to start early enough. (Spoiler alert: nobody started early enough.).
In any case, suppose you surmount all of these obstacles. Suppose that 37 electors are able to form a cartel. They all agree to vote for a candidate other than Trump.
Then comes the next set of problems. Surely Trump is not oblivious to the fact that rogue electors are planning on forming a cartel to depose him. (It's in the papers every day!) Knowing this, it should be child's play for Trump or his people to pick off one or two members of the cartel with side deals. (For example, Trump could offer the elector something that would benefit the elector's home state, or he might promise to consider a certain policy, and so on.) Hasn't anybody read The Art of the Deal?
As soon as Trump makes a side deal with one of the 37, the cartel collapses, because Trump now has 270 electoral votes, and the other 36 get nothing. So everyone in the cartel has incentives to defect before the others do. That's yet another reason why these cartels are so hard to form in the first place. (And note as well that there is no sanction for defecting from the cartel--the rogue electors can't easily punish those who secretly promise to vote against Trump and then change their minds.)
The only way to keep Trump from peeling off one or two defectors is if the cartel is completely secret, so that Trump can't tell who is a rogue elector who will vote against him. That means he can't find out who to entice to defect. But if the cartel is secret, then it's even harder to organize the cartel in the first place.
Consider the following as a candidate for “normalization” or
the “new political correctness.”
Globalization is inevitable. This inevitable globalization as inevitably produces
and exacerbates severe economic inequality.
No sane political actor can do anything about this rising inequality nor
should any sane political actor want to seriously combat this rising
inequality. The only legitimate subject
for debate is whether natural processes will ensure that some benefits
of globalization trickle down to less fortunate citizens (Republicans) or
whether some government intervention is necessary to ensure that most persons
enjoy at least some benefits of globalization (Democrats).
On the one hand, I do not think I will be thrown out of the
next faculty meeting, nor be allowed to renew my membership in the American
Political Science Association nor otherwise become a pariah if I question
whether government should not and cannot make efforts to combat the severe
economic inequalities caused by globalization. On the other hand, I am struck
by the way that a major effort was made to place Bernie Sanders out of the
mainstream in large part because he was the only candidate for the presidency
who questioned the above candidate for political correctness. As the opprobrium attached to "class warfare," issues of economic inequality have taken a back seat
when the subject turns to the present crisis of American constitutional
The immediate constitutional crisis may be some combination
of the election of Donald Trump, who fails to meet any constitutional standard
for the presidency, save a technical victory under the rules governing
presidential election, and a Republican Party that combines Trump’s disdain for
basic science with a preference for code words as opposed to Trump’s more
explicit bigotry. The long term
constitutional crisis is that the United States (and many constitutional
democracies elsewhere) are experiencing levels of economic inequality that most
empirical theories suggest are inconsistent with the practical operation of
Constitutional democracy functions best when the vast
majority of citizens have several characteristics. First, they are sufficiently well off that
life normally is not limited by the struggle to maintain a decent living space,
maintain a healthy diet and lifestyle, and provide one’s children with the education
they will need to maintain a decent living space, etc. Second, they are nevertheless not immune to
the vagaries of the economic cycle. Most citizens have good faith reasons for
thinking their lives may be transformed into a struggle for basic necessities during
an economic downturn, but that they may be able to leave that struggle for basic
necessities far behind during an economic upturn.
The United States increasingly lacks these prerequisites of
a constitutional democracy. A small but
increasing number of Americans (myself included) know about economic downturns
only from the newspapers (or, increasingly, the internet). An increasing majority of Americans live
lives that consist or more or less successful struggles for basic necessities,
without much hope that an economic upturn will do more than increase the
probability that those struggles will be temporarily successful and without much hope that their children will do much more than struggle for basic necessities. We live, in short, in Ronald Reagan’s
universe, a universe in which the right to become rich that Reagan trumpeted so frequently has become at least of equal importance to the right to live a fully
human life. In this universe, the
institutions of constitutional democracy, which allow ordinary persons to
influence politics have become enfeebled.
Restoring constitutional democracy is less a matter of getting rid of
the class clown as president than restoring such institutions as unions that
enabled ordinary people to help shape policies aimed at created the economic perquisites
for citizens of a constitutional democracy.
Trump's Wild Cards or Is a Constitutional Crisis Brewing?
Right now, I see three big wild cards preventing an "ordinary science" or "normalization" approach to studying the forthcoming Trump presidency. All relate to a fourth perspective I should have mentioned in my post on Trump and regime theory. I talked about the ideas of change as order, the federal order versus the national order and whether the policy space will dominate the electoral result.
The fourth perspective is what happens when Trump's populist brand of politics (I'm being polite) meets the permanent government. All of the wild cards relate to this potential conflict. The first is whether Trump will triple down on his insistence that the CIA must be wrong about Russian attempts to interfere with the election. This insistence has brought him into conflict with an agency that, whatever its problems and past issues, has a great deal of credibility in official Washington, including in Congress. The second is Trump's evident determination to maintain ownership of his far-flung businesses during his presidency (including, possibly, projects in Russia). We'll see what Trump says on December 15 [UPDATE-- now apparently pushed off until January -- or perhaps never] about how he will handle his businesses during his presidency, but it seems clear as things stand now that not only does he intend to maintain ownership, but that Republicans are giving him a pass on this issue. Given what we don't know about Trump's holdings, especially overseas, this has the real potential to create all sorts of ethics conflicts and difficult situations within the executive branch, even setting aside the problem posed by the emoluments clause. The third wild card, which won't be played, at least not fully for some time, is what happens when President Trump's appointments, policy measures, and decisions meet public opinion. All presidents are judged, especially within the Beltway, by how popular they are and whether their specific proposals match up with public opinion. Especially given his lack of experience, Trump cannot fully gauge the effect of being unpopular until he actually experiences it. But I think we already know he doesn't like it much.
All of these wild cards are contributing to considerable uncertainty and discord in the run-up to the Trump inauguration. In my book American Constitutionalism: From Theory to Politics I argued that the standard form constitutional crises take in the U.S. is characterized by uncertainty rather than certainty. Our constitutional crises are not characterized by political actors setting themselves against the Constitution as they see it (this stance appeals to few). Rather, operating nominally within the Constitution, political actors feel compelled by events to push beyond accepted constitutional understandings, reaching a state of uncertainty in which guideposts from the past tend to disappear. I think that does capture something of the feeling developing in the U.S. today, although it is unclear whether the situation will wind down rather than escalate. At this point I'm not optimistic, given the significance of the Trump wild cards yet to be played. Posted
by Stephen Griffin [link]
Thursday, December 08, 2016
Introducing the Congressional Clerkship
Abbe Gluck and Dakota Rudesill In this era of gridlock and
difficult politics, a bipartisan group of Senators has done something worth
celebrating.On Monday, with the
introduction of the Daniel Webster Congressional Clerkship Act, S.
3499, the Senate has taken the first step not only toward busting the judicial
clerkship monopoly on mentoring fresh young law graduates but also toward
bridging the enormous gap--a gap in both information and respect--between
Congress and the courts. The bill, sponsored
by Sen. Mike Lee (R-UT), Sen. Patrick Leahy (D-VT), Sen. John Hoeven (R-ND),
and Sen. Ted Cruz (R-TX), would create a dozen clerkship positions in
Congress for recent law school graduates, equally divided across chambers and political parties.The bill envisions them competitively funded at
the same level as their federal judicial counterparts.
What the New Majority Will Do – And How They Will Do It
This is my third of three posts on congressional procedure.As explained in my previous post, reconciliation provides a ready vehicle for congressional Republicans to enact a radical fiscal agenda with bare majority support in both houses.Every indication is that today’s Republicans will follow essentially the same script that worked so well for their predecessors under President Reagan, Speaker Gingrich, and President George W. Bush:first, pass huge, budget-busting tax cuts tilted heavily to upper-income people that are only partially paid for with cuts in programs aiding low-income people, then decry the resulting deficits and cite those to justify additional cuts in anti-poverty and human services programs (with the support of newly reawakened “deficit hawks” who slumbered through the passage of the tax legislation but now demand “shared sacrifice” to deal with the resulting “national emergency” of large structural deficits).
How Reconciliation Works: What it Can and Cannot Do
After President Reagan demonstrated the enormous, underappreciated power of reconciliation to pass unpopular legislation, the Senate imposed stricter constraints on what reconciliation bills could contain.These limits are likely to prove crucial in coming legislative battles.This post, the second of three, explores in depth the rules governing reconciliation.The first post offered an overview of congressional procedure; the third considers how congressional Republicans can leverage their procedural advantages to enact much of their program.
Most of the limits on reconciliation legislation are enforceable with points of order that require sixty votes to overcome.In other words, provisions violating these limits that could not muster the sixty votes to defeat a filibuster cannot evade a filibuster by moving through reconciliation.That being said, senators routinely reach agreements not to raise valid points of order.For example, when a reconciliation bill’s sponsors might plausibly be able to garner sixty votes to waive a particular point of order, opponents may agree to a modification of the objectionable provision or trade the removal of one problematic provision for their forbearance with respect to another.
Limits on reconciliation fall into four main categories.First, reconciliation legislation is only possible to the extent authorized and directed by congressional budget resolutions.Under the process envisioned in Congress’s rules, this concurrent resolution opens the annual budget season.It contains overall ceilings on discretionary appropriations and on direct spending within the jurisdiction of each of Congress’s authorizing committees as well as floors on the revenues provided for in tax legislation.It also typically includes assumptions about how much will be spent in each of an array of broad categories, or “functions”, of the budget.The Budget Committees that draft the budget resolution may or may not have particular programmatic changes in mind to reach the targets they set, but these are rarely specified and would not be binding if they were.The budget resolution also may, but need not, contain “reconciliation instructions” to one or more authorizing committees, as discussed below.
Philip Bobbitt, who to my mind does not enter the lists often enough, has a very insightful review of Jameel Jaffer's book on drone strikes up on the Just Security website. Jaffer is not too happy with Bobbitt's review, and his reply is here. To my mind, Bobbitt makes at least two important points that Jaffer misses. The first is that a judicial or adjudicative model is inadequate to understand the basis and extent of presidential power during an armed conflict (I'm happy to call it a "war," the 9/11 War) authorized by Congress. So as I recommend in my recent article, Bobbitt takes the 9/11 AUMF seriously. My contribution is to argue that the presidential elections held subsequent to 9/11 are constitutionally relevant to assessing the basis of the Obama administration's military operations overseas, including drone strikes. By the way, I am happy to recommend Sai Prakash's article in the same Drake Law Review symposium to which I contributed. Prakash argues for the position, which I agree with, that the 9/11 AUMF justifies the military operation against ISIS.
Bobbitt's second point is that organizations like the ACLU (as well as journalists) have placed far too much emphasis on OLC opinions as the source of law for the executive branch rather than presidential actions. Especially in sensitive areas like national security in which there is ongoing presidential involvement, the president controls the law of the executive branch, not OLC. In understanding that law, we must look first to presidential statements and decisions, not the quasi-judicial statements of OLC. In any case, I highly recommend Bobbitt's review. Posted
by Stephen Griffin [link]
Trump's real threat to democracy
Last week, CNN asked me to write about how President Donald Trump
might restrict freedom of speech. Instead I sent them an op-ed
explaining the real threats to democracy. Here it is. Posted
by JB [link]
Inside the Strange World of “Reconciliation”
As President-Elect Donald J. Trump feels his way through the transition from candidate to president, another set of far-more-experienced politicians await their turn to transform this country.House Speaker Paul Ryan, Senate Majority Leader Mitch McConnell, and their veteran committee chairs now have an unprecedented opportunity to transform the country.With President Obama clearly prepared to veto radical legislation coming to him from the Republican Congress, few have paid much attention to the processes by which such legislation might emerge.Now, a great deal is being written – much of it incorrect – about the strange world of “reconciliation”.Because these procedures, much more than substantive criticism, will constrain what Congress can now do, they are worth understanding.President Reagan was able to accomplish far more than most expected because his advisors mastered congressional procedure far better than many of their adversaries.This is the first of three posts.Here, I offer an overview of congressional procedure.In my next post, I examine in detail what “reconciliation” can and cannot do.In my final post, I consider how Congress and the President are likely to use congressional procedure to advance their agenda on fiscal and related matters.
Voting Rights Back at the Supreme Court: The Big Racial Gerrymandering Cases You Haven’t Heard Of
A key chapter in North Carolina’s long running attack on one
of our Constitution’s most cherished principles—equal political opportunity for
all regardless of race—comes to the Supreme Court next week. The pair of redistricting cases the Justices
will hear (one from North Carolina, one from Virginia), which have gone largely
unnoticed, will be an
important test for the Roberts Court.In deciding these cases, it will be critical
that the Court ensure that states respect the Constitution’s promise of equal
opportunity for all, reflected in the Fourteenth and Fifteenth Amendments, and
the Voting Rights Act.
Over the last five years, North Carolina has repeatedly
acted to violate the Constitution’s fundamental principles of voting rights and
political equality that undergird our democracy.In the wake of the Supreme Court’s decision
in Shelby County v. Holder gutting a
key part of the Voting Rights Act, the North Carolina legislature enacted what
the Fourth Circuit called “the most restrictive voting legislation seen in
North Carolina since the enactment of the Voting Rights Act of 1965,”
“target[ing] African Americans with almost surgical precision.”The Fourth Circuit’s decision in N.C. State Conference of the NAACP v.
McCrory, handed down last July, invalidated the state legislature’s effort
to cut back on early voting, but a number of local election boards eliminated
key early voting hours anyway, a result that may have been responsible for the
depressed African American turnout during the 2016 election.In addition to these restrictions on access
to the ballot, the North Carolina legislature has sought to pack African
Americans into state and congressional districts, lessening their influence
elsewhere through blatant racial gerrymanders.
December 5, the Supreme Court will consider the constitutionality of North
Carolina’s Congressional Districts 1 and 12, two huge sprawling districts whose
bizarre shapes were dictated by racial considerations.In addition to that case, McCrory v. Harris, the
Court will also be hearing a companion case out of Virginia, Bethune-Hill v. Virginia Board of
Elections.In both cases, state legislatures sought to
pack racial minorities into a handful of districts, using fixed racial quotas
which produced badly misshapen districts.And in both cases, the states
claim “the Voting Rights Act made me do it,” based on a cartoonish
version of the Voting Rights Act’s guarantee of equal political
facts of McCrory illustrate what is
at stake.In 2011, the North Carolina
legislature turned Congressional Districts 1 and 12 into majority-minority
districts, ignoring that in these districts, African Americans had previously been
successful in electing candidates of their choice by forming coalitions with
like-minded white voters.The resulting
districts cannot be squared with the Fourteenth and Fifteenth Amendment’s
guarantees of equality.The legislature
used race for the predominant purpose of packing African Americans into certain
districts, thereby curbing their influence elsewhere.And because African Americans in those
districts had previously acted with white voters, in line with the promise of
the Fourteenth and Fifteenth Amendments, to elect candidates of their choice,
the Voting Rights Act plainly did not compel the redistricting.States may not use a racial quota to pack
racial minorities into certain districts under the guise of Voting Rights Act
striking down North Carolina’s omnibus voter suppression law, the Fourth
Circuit observed that a political party holding a majority of seats in the
legislature may not “entrench itself . . . by targeting voters who, based on
race, were unlikely to vote for the majority party,” making clear that efforts
to seek partisan gain “cannot be accepted where politics as usual translates
into race-based discrimination.”The
same principle condemns North Carolina’s racial gerrymanders.In drawing Congressional Districts 1 and 12, race predominated over traditional
districting criteria, producing monstrously misshapen districts whose lines can
only be explained by the legislature’s desire to pack African Americans into those
districts.The history of past and
continuing racial discrimination in North Carolina—from 2011 until today—paints
a powerful picture of how North Carolina has sought to marginalize African
American voters, whether by making it harder for them to vote or by packing
them into districts.
Justices need not break new ground to invalidate the racial gerrymanders in McCrory and Bethune-Hill.It need only apply
its past cases, which make clear that the Constitution does not tolerate racial
discrimination in the drawing of district lines.Two years ago, in a case involving a racial
gerrymander enacted by the Alabama legislature, the Court made clear that the
Voting Rights Act requires “tak[ing] account of all significant circumstances,”
not “mechanically rely[ing] on numerical percentages,” as the North Carolina
and Virginia legislatures did.States
may draw majority-minority districts to help realize the promise of equality
contained in the Fourteenth and Fifteenth Amendments, but they must do so based
on hard evidence, not on racial quotas.Upholding that principle would be an important victory not only for
those challenging these district lines, but also for our Constitution’s promise
of equal political opportunity for all.
David H. Gans is the Director of the Human Rights, Civil Rights and Citizenship Program at the Constitutional Accountability Center. This post is cross-posted at Text and History.