The Normal Politics of Abnormal Presidents

Mark Graber

The challenge that the normal politics of abnormal presidents present is finding the resources in the existing constitutional order for upending that regime with the understanding that the means by which this order is upended will likely become the normal politics of the next era.  A military coup that overthrows Mr. Trump provides the foundation for the military coup that overthrows President Elizabeth Warren.  If the left gains power through riots in the streets and general strikes, then opposition to a leftwing government is likely to take the form of riots in the streets and general strikes.  The best solution and the most challenging one is a campaign aimed at mobilizing voters under the most difficult circumstances for mobilizing voters since the passage of the Voting Rights Act of 1965.
Posted 1:14 PM by Mark Graber [link]

Judge Posner on Syrian Refugees

Gerard N. Magliocca

Last fall, a panel of the Seventh Circuit handed down Exodus Refugee Immigration, Inc. v. Pence, which held that the State of Indiana (led then by the current Vice-President) could not lawfully exclude Syrian refugees from the state because that was inconsistent with the federal refugee policy in place at that time. Without commenting on the legality of the President's current executive order, let me quote some excerpts from Judge Posner's opinion about the facts of the case.

Because of fear of terrorist infiltration--apart from the massive 9/11 terrorist attacks, Boston, New York and San Bernadino (California) have been targets of terrorist attacks since 2001 by persons not born in the United States--all persons seeking to enter the United States as refugees are required to undergo multiple layers of screening by the federal government, following screening by the United Nations High Commissioner for Refugees, before they can be admitted to the United States. The process can take up to two years. Of course, there can be no certainty that no terrorist will ever slip through the screen, elaborate though it is; for there has been terrorist infiltration of this country since 9/11 and there is a specific concern about Syrian refugees: many of them were born elsewhere, moved at some point to Syria, became caught up in the civil war there, sought to escape from that embattled nation in which hundreds of thousands of civilians have been killed, and are difficult to screen because little may be known about their life either in Syria or in their country of origin if different from Syria . . .

The governor of Indiana believes, though without evidence, that some of these persons were sent to Syria by ISIS to engage in terrorism and now wish to infiltrate the United States in order to commit terrorist acts here. No evidence of this belief has been presented; it is nightmare speculation . . .

The governor's brief asserts 'the State's compelling interest in protecting its residents from the well-documented threat of terrorists posing as refugees to gain entry into Western countries." But the brief provides no evidence that Syrian terrorists are posing as refugees or that Syrian refugees have ever committed acts of terrorism in the United States. Indeed, as far as can be determined from public sources, no Syrian refugees have been arrested or prosecuted for terrorist acts or attempts in the United States. 

More than seventy years ago, Justice Robert Jackson explained that "oversimplification, so handy in political debate, often lacks the precision necessary to postulates of judicial reasoning." The President is soon going to find that out, and he's going to get tired of all the losing.
Posted 11:27 AM by Gerard N. Magliocca [link] (72) comments

Trump's Refugee Order and The Initial Judicial Resistance

Jonathan Hafetz

Last night’s ruling by a federal district judge in Brooklyn, temporarily blocking enforcement of key portions of President Trump’s order on refugees and other immigrants, is important in several respects. Trump’s order seeks to suspend entry of all refugees to the United States, bar Syrian refugees indefinitely, and block entry into the U.S. of citizens of seven predominantly Muslim countries (based on those countries' purported associations with terrorism). The order’s implementation produced immediate chaos and suffering—with refugees from war torn countries and legal permanent residents returning home trapped in America’s airports—and sparked protests across the country.  Judges in other jurisdictions have also issued rulings blocking parts of Trump's order. (See the E.D. Va. order here, blocking removal of legal permanent residents).  While it is too early to draw firm conclusions, here are a few preliminary thoughts on what these important developments could portend.

In entering the stay, Judge Donnelly found that the petitioners had demonstrated a likelihood of success on their procedural due process and equal protection challenges and faced irreparable harm. (Petitioners also raised statutory and international law arguments).  The order, entered after an emergency hearing on Saturday night to forestall imminent deportations, did not flesh out the court's analysis. But its issuance suggests that the judge was moved at least in part—and properly so—by the discriminatory animus underlying the order. (David Cole has argued why, for this reason, the order also violates the Establishment Clause). This animus appears not only in the order’s text (note its pledge to keep “radical Islamic terrorists” out of the U.S., while never mentioning other terrorists), but also by Trump’s repeated anti-Muslim statements both during the campaign and since taking office, including his express preference for “Christians” seeking asylum over “Muslims.”

The decision provides a few tea leaves for predicting judicial review in a Trump administration. First, Trump’s overreaching—and his refugee order is almost certainly one example of more to come—could provide an impetus for judges to curb doctrinal anomoloies.  In this case, it may embolden otherwise sympathetic judges to chip away at the plenary power doctrine, long criticized as an aberration to prevailing anti-discrimination norms in constitutional jurisprudence. (See Ruthann Robson’s post discussing recent cases where the Supreme Court has suggested it may cast a more critical eye at the doctrine). The refugee order’s combination of manifest bias and arbitrariness—note its senseless targeting of some countries to the exclusion of others (including countries from which the 9/11 attackers came) and its blatant disregard of evidence on the lack of a security risk posed by refugees (see Alex Aleinikoff's post here)—may give judges ground to strengthen those anti-discrimination norms, under whatever standard of scrutiny they ultimately apply. The same goes for the government’s continued assertion of categorical territorial limitations on the Due Process Clause to preclude its application to those stopped at the border-- should, for example, the government continue to detain refugees and others denied entry under Trump’s order without a hearing.

Second, and relatedly, ordinary doctrines of judicial deference will prove vulnerable in the face intemperate and irresponsible action by the executive. Ben Wittes has catalogued the chaos and confusion surrounding the order, which excluded lawyers and other officials in the executive branch with  relevant expertise. For a parallel, look at the trio of Supreme Court defeats suffered by the Bush administration after 9/11 on the detention and treatment of terrorism suspects, which resulted from a disregard for legal rules and which was pushed by an ideological cabal within the administration and excluded top military officials. Put simply, judges will be less likely to defer to knee-jerk extremism from a White House in which Steve Bannon is calling the shots or exercising influence. The Trump administration has already appeared to retreat from one key part of the order--the provision affecting legal permanent residents--but the damage to the administration's credibility has been done.

Third, federal courts will continue to provide a crucial check, not only because of their structural independence, but also because they remain insulated from Trump’s non-fact based world. Unlike in the media, where Trump continues to peddle lies (like the falsehood that millions of undocumented immigrants voted illegally during the presidential election) and muddy the water before the American public, courts still operate in a world of law and facts. That is not to say some judges will not view some issues in a manner favorable to the Trump administration.  But it does mean that, at least unless and until Trump launches a direct assault on the judiciary, there is still one place where Trump will have to provide answers to the reality based world and will be held accountable on that basis.
Posted 1:24 PM by Jonathan Hafetz [link]

Foreign Policy Chaos

Stephen Griffin

Posted 10:00 AM by Stephen Griffin [link]

Symposium on Law's Abnegation: Collected Posts

JB

For convenience, here are the collected posts on our symposium on Adrian Vermeule's book, Law's Abnegation: From Law's Empire to the Administrative State (Harvard University Press 2016).


Jack Balkin, Introduction: Symposium on Adrian Vermeule's Law's Abnegation

Sanford Levinson, On Adrian Vermeule's Law's Abnegation


Jeffrey Pojanowski, The Constitution of Abnegation


David Dyzenhaus, Legality's Affirmation


Gillian Metzger, A Long Arc of Deference or an Endless Cycle? Adding Internal Law and Politics to Adrian Vermeule’s Law’s Abnegation

Jack Balkin, Administrative Law Working itself (Im)Pure

Andrew Koppelman, Abnegation?

Mark Graber, The Political Construction of Administrative Law

Adrian Vermeule, Law's Abnegation: A Reply to the Symposiasts
Posted 9:00 AM by JB [link]

Sir Humphrey Appleby Lives

Gerard N. Magliocca

My favorite television series are "Yes, Minister" and "Yes, Prime Minister," the BBC programs that aired in the 1980s. They primarily depict the relationship between Jim Hacker, a politician, and Sir Humphrey Appleby, the head civil servant who advises Hacker.  In simple terms, some of the plots revolve around Hacker's attempts to get things done over civil service opposition, and some of them are about Appleby's attempts to block ideas that he views as bad policy.  It's very funny (in a British way) and still highly relevant.

One of Hacker's telling comments is that the opposition party in Parliament is the opposition in exile, but the civil service is the opposition in residence. I mention this because that may be an accurate description of the current political situation. The trend in administrative law scholarship, dating back to then-Professor Kagan's article on "Presidential Administration in 2001, emphasizes the degree to which presidents have successfully exerted their authority over the administrative agencies even though they also answer to Congress. Less attention, it seems to me, has been given to how civil servants can frustrate presidential policy if they choose to.

In the first week of the new Administration, I've been struck by the extraordinary number of leaks coming from the various agencies. Perhaps I'm wrong, but I think it's unusual to see draft executive orders leaked to the press, or conversations between the President and the head of the National Park Service that just occurred.  There is also the new phenomenon of agencies using social media to put out messages that are contrary to the Administration's stated goals.

Won't the President's political appointees get this under control once they are in place? Partially, but how much can they do in the face of determined opposition?  You can't just fire civil servants at will, and you can't easily replace the ones with the technical know-how necessary to carry out policy. And (as any devoted watcher of "Yes, Minister" can attest), there are a million complicated strategies that civil servants can use to delay policies if they are so inclined.

This is not to say that the civil service in America is a check-and-balance equivalent to the courts and Congress. But we may find out in the next few years just how much they can do.
Posted 11:02 AM by Gerard N. Magliocca [link] (43) comments

Law's Abnegation: A Reply to the Symposiasts

Guest Blogger

Adrian Vermeule

For the Symposium on Adrian Vermeule, Law's Abnegation. 

            I'm grateful to Jack Balkin for organizing the symposium on Law's Abnegation, and to all of the symposiasts for their generous remarks and for their time. It seems to me that no single common theme emerges; their points, while interesting, do not converge on any single line of conversation. So I will mention a few disparate issues, attempting to touch on all of the symposiasts except Sandy Levinson, whose cogent and (overly) charitable entry speaks for itself and calls for no response.

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Posted 9:00 AM by Guest Blogger [link]

The Political Construction of Administrative Law

Mark Graber

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Posted 9:00 AM by Mark Graber [link]

US to rest of world: Don't even think of having any international events in the US

Sandy Levinson

GIven the actions of the individual who currently occupies the White House, why would any international organization, ranging from scholarly groups to the International Olympics Committee or World Cut, conceivably wish to hold an event in the US.  One presumes that it will become ever harder for anyone to get a visa to enter the US.  Can anyone possibly believe, for example, that we will effectively protect ourselves against the possibility of a terorrist entering the US simply by denying entry to anyone from, say, Syria or Libya?  As we get more paranoid, don't we have to worry about anyone coming from, say, Belgium, France, Germany, and the United Kingdom, as well.  Shouldn't we expect anyone and everyone from those countries (and many others as well, including, say, Israel, which has generated its share of Jewish terrorists to complement the better known Arab variety) before we let them through the literal and metaphorical "walls" the present occupant is so eager to build?  Perhaps we won't miss the foreign visitors. I'm no fan of the Olympics and was very happy when my sometime-quasi-home city of Boston rejected the opportunity to apply for the 2024 games.  But, no doubt, others disagree and wold like to see more such international events.  And, as as someone interestd in comparative constitutional law, who is planning to go to Copenhagen in July for the annual conference of such scholars, I would appreciate the 2018 conference's being held in a more convenient (for me) venue, just as the 2015 gathering was in New York.  But I suspect I should get used to traveling abroad and simply hoping that none of the countries whose nationals we're going to disrespect and mistreat in the very near future will feel like reciprocating.  (In this context, I recall paying handsome feels for visas to visit Brazil and Argentina solely as reciprocal responses to the extortion visited by the US on nationals of those countries who wish to visit the US, unlike (at least currently) visitors from, say, the UK.)
Posted 3:48 PM by Sandy Levinson [link] (64) comments

A Valentine to Jennifer Rubin, the most courageous commentator on our present reality

Sandy Levinson

I've suggested this before, but it's worth repeating that the two most truly admirable columnists in the country may well be Michael Gerson and Jennifer Rubin, both of them part of the ostensibly "conservative" cohort of columnists at the Washington Post.  They have been consistently and eloquently critical of our newly inaugurated president (who may or may not be a "sociopath," but is almost universally agreed to be otherwise unfit to be our president under any standard criteria, including previous experience, knowledge of relevant policy, and emotional maturality).  They have both become genuine heroes of mine, which means, among other things, that I will now read and take seriously even columns of theirs when I disagree with them (as when, say, Ms. Rubin attacks the Iran deal or expresses more support for the current Israeli position than I believe is merited).  They are both truly serious and commendable people, who are clearly willing to burn bridges to traditional friends and allies because of their own intellectual and moral integrity.  I've never met either, but it would be an honor to do so..Both deserve the award that the JFK library gives each year to those who are "profiles in courage" (an award, incidentally, that JFK would certainly never have won as a practicing politician). 

The gist of her column, provocatively titled "Maybe Trump is not lying," is that in fact he may not be "lying" in the sense of actually realizing that he is stating falsehoods.  Instead, he is truly delusionary, believing that what he is saying is "in fact" true, just in the way (my analogy, not hers) that a certain kind of schizophrenic claiming to hear voices from aliens contacting him/her from spaceships hovering above us in the ether may in fact be accurately conveying his/her perception of reality.  So who is worse, a mendacious clear-cut liar (think of Kelly Anne Conway, perhaps the single most loathesome person to emerge from the Trump entourage, even moreso than Steve Bannon, who probably does in fact believe some of his near-neo-Nazi pernicious nonsense) or a delusionary?   One might analyze this either as moral question or a policy question.  The former allows us to let the "sincere" schizophrenic off the hook for the reasons that we allow people to be acquitted on grounds of mental illness even as we immediately commit them to facilities not called "prisons" because they are in fact dangers to themselves or, more importantly, others.  The latter, on the other hand, requires us to ask which is in fact more of a truly danger as a would-be "leader."  (The answer, of course, may be that both are equal menaces.)  In any event, she concludes as follows:

We are not calling — yet — for invocation of Section 4 of the 25th Amendment. (“Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.”)

 We are calling for someone, perhaps his children, to see if they can prevail upon him to stop behaving in this way, for if not, legitimate worries will mount about whether he is able to carry out his duties. We also are saying that Republicans need to be pressed to state their view: Is he lying or is he unable to separate what he wants to believe and what exists, literally, in front of his eyes? The first makes him morally unfit, and was the basis upon which many #NeverTrumpers refused to vote for him. If the latter, they — and we all — have a constitutional crisis the likes of which we have never seen. With Trump, however, we have learned the past provides no guarantees

So she is willing to suggest what others have been too tactful (or gutless) to note:  That we don't have to talk about impeachment, which requires wading into the swamp of legalistic arguments about what constitutes a "high crime and misdemeanor."  We're already beginning to be subjected to endless debate about the one true meaning of the Emoluments Clause, which, frankly, I regard as exemplifying the kind of bubble of abstracted legalism that smart and well-trained lawyers live in.  Within a seminar room, it may be worth arguing whether the Emoluments Clause does or does not apply to the President because he is not an "officer" under a certain tendentious reading of 18th century literature.  Among other things, of course, this requires putting to one side that it is almost literally bizarre to assume that those who cared enough about foreign influence to put the Emoluments Clause in the Constitution in the first place would have thought that it should be perfectly all right for foreigners in effect to try to bribe a sitting president.  But I truly digress, for what makes Donald Trump so truly scary to almost any thoughtful individual (including, I have discovered, at least one of my colleagues at the University of Texas who in fact voted for him) is his emotional volatility.  (I should note, incidentally, that another colleague of mine, a trained physician, has suggested that Mr. Trump is exhibiting some symptions of early-onset dementia--which wouldn't be all that early given that he is, after all, 70.

The 25th Amendment, if one in fact takes it seriously as part of the Constitution, does offer a way to get rid of Mr. Trump tomorrow without having to submit to Talmudic debates about the particular extent to which he has committed "high crimes or misdemeanors."  To be sure, other kinds of debates are generated by the 25th Amendment, but, blessedly, none of them require getting into the swamp of originalism and the like.  One "merely" has to figure out how to discern whether or not a President has become unfit to carry out the responsibilities of his/her office.

Even if, as a practical matter, it is unimaginable that the 25th Amendment will in fact be invoked (any more than it was invoked in Reagan's second term, when one suspects that some of the inner circle were aware that Alzheimer's has set in), we we should ask ourselves exactly why it is unimaginable.  As she suggests, there is a perfectly good argument that he lacks the emotional stability to carry out the solemn duties of his office.  Is this proof that the 25th Amendment, added to the Constitution only after John F. Kennedy's assassination and the realization that we would have been far worse off had he lived  and lingered as a severely injured President, perhaps like Woodrow Wilson, is exactly what James Madison thought was true about lots of the Constitution--that is, that the relevant clauses were simply "parchment barriers," not to be taken really seriously.

It would be a very good thing if the press, every time it interrogated Vice President Pence and other members of the Cabinet, asked if they were aware of the Amendment and if they had any personal concerns about Mr. Trump's actual abilities carry out his office.  Do they really believe it is irrelevant what a President believes to be the case about the world, whether it's space aliens from Venus, the non-existence of global warming, the presence or electoral fraud, or whatever?  I assume that they do not share the same delusions that Mr. Trump does, which means they are, like Ms.Conway, only mendacious enablers who deserve the unalloyed contempt of the country in a way that a pathetically deluded schizophrenic does not.  Perhaps Donald Trump indeed has the excuse of being seriously mentally ill.  There is no excuse for his entourage of enablement, including people like Paul Ryan and Mitch McConnell.  .  

Posted 3:38 PM by Sandy Levinson [link] (46) comments

Other uses of "emolument" in The Federalist (and the fallacy of affirming the consequent)

John Mikhail

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Posted 12:15 PM by John Mikhail [link]

Abnegation?

Andrew Koppelman

For the Symposium on Adrian Vermeule, Law's Abnegation.




Posted 9:00 AM by Andrew Koppelman [link]

Administrative Law Working Itself (Im)Pure

JB

For the Symposium on Adrian Vermeule, Law's Abnegation.

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Posted 9:00 AM by JB [link]

Stumbling into Obamacare Federalism

Joseph Fishkin

Federalism has various functions in our constitutional system.  But the picture of which functions matter most changes during periods of intense political polarization, intense federal government dysfunction, or both (and our current political era, both pre- and post-Trump, is a cocktail with a whole lot of both).

For example: Heather Gerken has argued that one central function of federalism, and indeed sub-federalism potentially “all the way down,” is to allow people who are in the minority in national policy disagreements to have some jurisdictions where they actually decide—govern—rather than merely voicing their dissent.  This particular function of federalism takes on greater significance at times of intense polarization, even as that same polarization tends to tax the willingness of those in power at the national level to countenance dissent from the states below.

I’ve blogged here before about another, less laudable item in the list of functions of federalism (and especially of “cooperative federalism”): to obscure the role of the federal government in major national policy measures, disguising federal policy as state policy and federal dollars as state dollars.  This is one of the reasons why you so often see polling results that show, for example, that state insurance exchanges created by the Affordable Care Act (such as KYNECT, the Kentucky-branded exchange), as well as the state-administered Medicaid programs the ACA dramatically expanded, are far more popular than the ACA itself.  To be sure, even the ACA itself—the unambiguously national brand—is more popular than Beltway Republicans think.   But its state-branded components are often considerably more popular.  As is often the case, states get undue credit for the good stuff.  The individual mandate—collected by the IRS via your 1040—looks like the federal policy it is, while KYNECT looks like the state of Kentucky.  Here as elsewhere, citizens have every reason not to understand that the bulk of the money for many popular state programs comes from the federal government.  We have deliberately fuzzed it up.

The current debacle unfolding in Congress and the Executive Branch, as Republicans flounder to formulate a plan to “replace” the ACA, amid radical disagreement within their own ranks over exactly what the goals and scope of any such replacement ought to be, has me thinking about a third and much simpler function of federalism.  Federalism can be a way to punt.  Sometimes, the federal government simply has reason to decide not to decide an issue.  Maybe the tradeoffs are too hard.  Maybe there is no solution that can garner a majority in Congress.  So, the federal government punts, leaving it to the states.

There is plenty of overlap among the functions of federalism I’ve just mentioned (and others I have not).  For instance, sometimes people advocate what sounds like a punt to the states of a hard issue, but really what they have in mind is more Gerkenian: One side is nationally in the minority, and they argue that something should be “left to the states” precisely because that way they’ll win somewhere rather than losing everywhere; and perhaps by winning somewhere, they’ll advance their overall argument in the national public sphere in the long run.  This is why “leave [same-sex] marriage to the states” was at one time, briefly, the liberal position (when liberals were nationally in the minority on the issue) and then later became the conservative position (when conservatives found themselves in the minority).

So that brings us to our current political moment.  Republicans have a problem.  Their general problem is that now they have to govern.  Their specific problem is that they have pledged to “repeal and replace” the ACA and they have no idea how to translate this into national policy that can (a) garner 60 votes in the Senate and a majority in the House, (b) not mangle the national health insurance system so badly that it creates political blowback on an epic scale (I am deliberately setting the bar very low), and (c) satisfy their core supporters that they have followed through on their promise to slay their white whale, Obamacare.  Indeed it would be a challenge to satisfy any two of these!  And they do need all three.

Many but not all Republicans would set the bar higher, with a stronger version of (b) that we could call the “nonretrogression” principle in health insurance: The millions of people who now have coverage through either expanded-Medicaid or the exchanges should not be made substantially, visibly worse off (such as by losing health insurance outright, or seeing their current insurance replaced with something that is obviously flimsy in comparison).  President Trump, for his part, has repeatedly and forcefully endorsed this stronger version of (b).

The result is a moment of serious peril for the new Republican governing majority, and I’m not sure they yet appreciate the scope of the peril.  Any major, high-profile changes to Obamacare will begin to trigger the Pottery Barn rule: the chaos and broken mess of the health insurance system will begin to be blamed on Republicans.  Even without such major, high-profile changes, after a while people will tend to blame the President for national policies that are going badly.

So, what to do?  The answer is Obamacare federalism.

That should be where this debate ends up.  And—each of the major sides in that debate in Washington should endorse some version of it, for different reasons that track the functions of federalism outlined at the start of this post.  This afternoon I saw an early indication that a few key Republican Senators are thinking along these very lines.*

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Posted 8:53 PM by Joseph Fishkin [link]