Carl Schmitt in Contemporary U.S. Legal Theory

Mark Tushnet

Posted 3:36 PM by Mark Tushnet [link]

Some Legal Realism About Legal Theory

David Pozen

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Posted 11:24 PM by David Pozen [link]

"I Don't Care About My Dignity"

Gerard N. Magliocca

The President's recent tweets made me think about Andrew Johnson's ill-fated campaign for Democrats during the midterm elections of 1866. Johnson's conduct during what was termed "the swing around the circle" was widely seen as an fiasco because he got into shouting matches with hecklers and made several wacky statements ("Why don't you hang Thad Stevens?") When some of the President's supporters told him that some of his comments were undignified, the President was heard by reporters to reply "I don't care about my dignity," which became a national headline.

Two years later, one of the articles of impeachment against President Johnson alleged that comments such as these were a high crime and misdemeanor. Article Ten stated:  "Andrew Johnson, President of the United States, unmindful of the high duties of his high office and the dignity and proprieties thereof" did "make and declare, with a loud voice, certain intemperate, inflammatory, and scandalous harangues, and therein utter loud threats and bitter menaces . . . amid the cries, jeers, and laughter of the multitudes then assembled in hearing." [I love the touch about "with a loud voice."] Article Ten concluded with the following:

Which said utterances, declarations, threats and harangues, highly censurable in any, are peculiarly indecent and unbecoming in the Chief Magistrate of the United States, by means whereof the said Andrew Johnson has brought the high office of the President of the United States into contempt, ridicule and disgrace, to the great scandal of all good citizens, whereby said Andrew Johnson, President of the United States, did commit, and was then and there guilty of a high misdemeanor in office. 

Hail to the Chief.


Posted 9:59 PM by Gerard N. Magliocca [link] (31) comments

That Syria War Power Debate, Continued

Deborah Pearlstein

Posted 12:15 PM by Deborah Pearlstein [link]

A Realistic Theory of Law

Brian Tamanaha

At any time, but particularly in critical times like these, it can be useful to step back and take a clear-eyed historical view of the development of law. My new book, A Realistic Theory of Law, presents law as complex of social institutions that develop in relation to surrounding factors. Chapter Five, Law in the Age of Organizations, is particularly relevant to contemporary events. Therein I distinguish three government uses of law: to maintain government power, to structure and carry out internal operations, and to pursue initiatives and achieve objectives in the social arena. These government uses, I assert, "are influenced by people occupying offices with their own interests, ideas, and objectives, as well as externally by interests seeking to control or shape the activities and objectives they carry out." Here is the Cambridge description of the book:

This book articulates an empirically grounded theory of law applicable throughout history and across different societies. Unlike natural law theory or analytical jurisprudence, which are narrow, abstract, ahistorical, and detached from society, Tamanaha's theory presents a holistic vision of law within society, evolving in connection with social, cultural, economic, political, ecological, and technological factors. He revives a largely forgotten theoretical perspective on law that runs from Montesquieu through the legal realists to the present. This book explains why the classic question 'what is law?' has never been resolved, and casts doubt on theorists' claims about necessary and universal truths about law. This book develops a theory of law as a social institution with varying forms and functions, tracing law from hunter-gatherer societies to the modern state and beyond. Tamanaha's theory accounts for social influences on law, legal influences on society, law and domination, multifunctional governmental uses of law, legal pluralism, international law, and other legal aspects largely overlooked in jurisprudence.

As a side note, the cover images were drawn by my artist daughter. It is my first book with a cover that conveys the content.
Posted 11:32 AM by Brian Tamanaha [link]

Two Essays on Constitutional Rot

JB

I have posted two connected essays on the phenomenon of constitutional rot on SSRN; the essays began as posts on this blog. Each approaches the problem of constitutional rot from a slightly different angle.

Here are the abstracts:


Constitutional Rot and Constitutional Crisis


May 15, 2017

The first hundred days of Donald Trump's presidency led many commentators to ask whether the United States was in the midst of a constitutional crisis. Drawing on previous work written with Sanford Levinson, this essay explains why that is not the case. Trump's demagogic rise to power, however, suggests that a different phenomenon is at work: constitutional rot.

When politicians disregard norms of fair political competition, undermine the public's trust in government, stroke polarization, encourage mutual fear and hatred of fellow citizens, and repeatedly overreach to rig the political system in their favor, they cause the system of democratic and republican constitutionalism to decay. The decay of norms that maintain a democratic republic is the phenomenon of constitutional rot. Many claims about "constitutional crisis" during Trump’s presidency reflect a growing recognition of the constitutional rot in our nation’s political institutions.

The essay explains the differences between constitutional crisis and constitutional rot and how the two are connected. Whereas constitutional crises normally occur over brief periods of time, constitutional rot is often a long and slow process of change and debilitation, which may be the work of many hands over many years.

The election of a demagogue like Trump is evidence that our institutions have seriously decayed, and judging by his presidential campaign and his first hundred days in office, Trump promises to accelerate the corruption. The constitutional system in the United States may well be able to survive even Donald Trump’s misadventures. But Trump’s rise to power, his conduct of the presidency, and the inability (or unwillingness) of members of Congress to stop him, are signs that all is not well in American constitutional democracy. At some point, if we put too much weight on our democratic institutions, they will snap. There is currently no actual constitutional crisis in the United States. But if constitutional rot continues, we are living on borrowed time.

* * * * *

Constitutional Rot

June 14, 2017

Constitutional rot refers to the decay of features of a constitutional system that maintain it as a healthy republic. Constitutional rot has been going on for some time in the United States, and it has generated the country's current state of dysfunctional national politics. Constitutional rot has made American politics increasingly less democratic, less republican, and more oligarchical.

The causes of constitutional rot are four interlocking phenomena, which we might call the Four Horsemen of Constitutional Rot: (1) political polarization; (2) loss of trust in government; (3) increasing economic inequality; and (4) policy disasters--important failures in decisionmaking by our representatives, such as the Vietnam War, the Iraq War and the 2008 financial crisis. Each of these four phenomena exacerbates the others. In addition, America's inadequate response to globalization has hastened constitutional rot.

As a political system becomes increasingly oligarchical, it also becomes less equal, more polarized, and generates greater distrust, both of government in general and of political opponents. People not only lose trust in government, but in other people who disagree with them. Political opponents appear less as fellow citizens devoted to the common good and more like internal threats to the nation.

When people lose faith in government, they are likely to turn to demagogues who promise to make everything right and restore former glories. The rise of Donald Trump, who has many of the traits of a traditional demagogue, is a symptom of constitutional rot, rather than its cause.

Constitutional rot not only allowed Trump to gain power; he also has incentives to increase constitutional rot to stay in power; for example, by increasing polarization, and sowing distrust and confusion. Many of his actions as president—and his media strategy—make sense from this perspective.

Moreover, Trump, like many populist demagogues before him, has maintained populist rhetoric while abandoning any serious effort at pushing for genuinely populist policies. Once populist demagogues take power, they often discard the people who helped put them there; instead, they substitute new backers who are easier to deal with and/or pay off to stay in power.

The United States still retains many structural advantages that might allow it to halt and reverse constitutional rot, including an independent judiciary, a free press, and regular elections. In fact, Trump's presidency likely represents the end of an enervated political regime, and not the necessary future of politics. Although the present situation looks bleak, the next several election cycles offer the possibility of political renewal if Americans can rise to the challenge.


Posted 11:19 AM by JB [link]

Your Travel Ban Isn't Safe Yet, Mr. Trump

Corey Brettschneider

Here is my piece for the New York Times today about the travel ban.





Posted 11:14 AM by Corey Brettschneider [link]

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

Deborah Pearlstein

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Posted 10:10 PM by Deborah Pearlstein [link]

Taxes, program cuts, and reconciliation: the path forward

David Super

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





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Posted 8:36 AM by David Super [link]

Constitutional Rot-- A Discussion on MSNBC

JB

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

Melber did a good job of summarizing several key themes in the speech in only a few minutes, and then followed it up with a panel discussion.
Posted 8:42 PM by JB [link]

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

David Super

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Posted 8:39 AM by David Super [link]

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

Stephen Griffin

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

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

You might figure that governors would oppose the Senate bill and some (including some Republicans) do oppose it.  But my sense is GOP governors in particular are not speaking with one voice this time around.  They aren't because the Court created the option, unforeseen by Congress, of not expanding Medicaid in NFIB v. Sebelius.  If all states had expanded Medicaid, they all would be in the same position with respect to the Senate bill, which is a very bad one, as it rolls back the expansion.  Parenthetically, I haven't seen much commentary on how the different parts of the ACA are intended to work together.  Reverse the Medicaid expansion and more poor people will show up at emergency rooms, recreating the cost shifting problem that the ACA tried to solve.  In any case, GOP governors in non-expansion states appear to be supporting the House and Senate bills.  The unity that characterized governors in the past on Medicaid has been broken. For that, we have the Supreme Court to thank.
Posted 4:38 PM by Stephen Griffin [link]

Texas boys speak, and what they want is secession

Sandy Levinson

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

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

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

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

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

Frank Pasquale

Usually, federal guarantees of health benefits are hard to unravel, especially when a critical mass of the middle class relies on them. But the ACA's complexity has made it much harder to defend politically. If the GOP were about to end Medicare, outraged resistance would swamp them. But the proposed ACA & Medicaid cuts will affect diverse groups in diverse ways. Sure, you can argue to a middle class 27-year-old in Alaska that her premiums will likely increase if something like the BCRA passes:
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Posted 3:23 PM by Frank Pasquale [link]

The Lawyers Briefly Seize Control of POTUS Twitter

Gerard N. Magliocca

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

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

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

As a House committee was requesting the disclosure of any "tapes" of any such conversations, it is not surprising that the President would run his answer by the lawyers before hitting Tweet.  Hopefully he'll start making that a regular habit.
Posted 4:44 PM by Gerard N. Magliocca [link] (36) comments

Who are the Statesmen of Constitutional Law?

Richard Primus

Posted 10:38 AM by Richard Primus [link]

Health Care and Reconciliation

David Super

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Posted 9:50 PM by David Super [link]

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

Marty Lederman

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Posted 6:18 PM by Marty Lederman [link]

Speaking of Executive Deference

Deborah Pearlstein

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Posted 12:02 PM by Deborah Pearlstein [link]

Presents, Emoluments, and Corruption

Guest Blogger

Simon Stern

The government’s motion to dismiss in CREW v. Trump features a two-prong argument on the central issue in the dispute, namely, the meaning of the term emolument in the provision stating that “no person holding any office of profit or trust under them, shall, without the consent of the Congress, accept of any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state.” The DOJ’s argument presumably offers a template for the government’s position in the other emoluments cases. First, according to the DOJ, the term emolument was “widely understood at the framing of the Constitution to mean any compensation or privilege associated with an office”—such as tolls, rents, fees, and the like, attached to the performance of official duties. Whether this claim can stand up to historical scrutiny remains doubtful, in light of analyses by John Mikhail (here and here), and by Joshua Matz and Larry Tribe.
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Posted 10:00 AM by Guest Blogger [link]

Opposing Trump's Muslim Ban At The Supreme Court

Corey Brettschneider

Posted 12:36 PM by Corey Brettschneider [link]

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

Deborah Pearlstein

Posted 3:13 PM by Deborah Pearlstein [link]

The Biggest Jurisprudential Mistake Made in Politics

Guest Blogger

Scott Shapiro

Posted 9:35 AM by Guest Blogger [link]