Presidential identity and neutral principles

Sandy Levinson

Mark Graber and have just put a new co-authored paper up on SSRN.  It will come out next year, suitably revised to take account of feedback,  in a symposium on presidential power to be published by the Chapman Law Review.  In it we argue that academic (and other) writing on executive power adopts the "neutral principles" approach so (in)famously posited by Herbert Wechsler some sixty years ago, when he used his analysis to explain why  Brown v. Board of Education was basically indefensible.  Wechsler's analysis was obtuse inasmuch as he resolutely refused to recognize that Jim Crow represented a subversion of the constitutional order, a "fraud on the Constitution,:  Footnote Four of Carolene Products can be read as arguing that the new "normal," after the New Deal, of maximum deference and "minimum rationality," should be suspended in special circumstances. We agree, and one of these circumstances is a basically dangerous president.   Most analysis of executive power, however, refers to an abstract, reified "president," and the assumption is that all presidents, from Washington to Trump, are equal.  If we'd allow Washington or Lincoln to do X, than Trump can do it, too.  Conversely, if we would limit Trump's power, we have to reconsider any similar actions by any of his predecessors.

We argue that this is basically foolish, that all presidents are not alike, not only in the challenges they face (e.g., civil wars or depressions), but, more importantly for present purposes, in the degree to which they can plausibly be described as "Publian" presidents in terms of their psychological disposition to be committed to achieving the public good (rather than some narrow partisan advantage or, even worse, some entirely self-serving benefit) coupled with their cognitive ability to think long and hard before making thoughtful decisions.  Donald Trump is the ultimate anti-publican president, even if one rejects the view that he is a sociopath.  We quote many conservatives who express their dismay about the President.  James Clapper, the former Director of National Intelligence, has notably described his presidency as a "nightmare" and admitted that he is truly fearful that Trump has access to the nuclear codes and that we have a system, according to Clapper, that places few hindrances to carrying out disastrous presidential orders with regard to the use of military force.

Reining in Donald Trump should count as a "compelling interest" that should lead judges to veer away from their usual posture of extreme deference to the executive and instead to ask tough questions regarding anything Trump might want to do.  E.g., what process did any executive order go through?  Does it represent some kind of genuine deliberation by a variety of relevant decision makers, or is the product of presidential whim or, of course, outright bigotry, as with the travel ban?  Courts need not say overtly that Trump is untrustworthy (which he clearly is); instead, they can simply engage in more searching scrutiny of what President Trump might order than they would of previous presidents.

We note that there are all sorts of areas of law and ordinary life where extraordinary circumstances lead to changes in doctrine and behavior.  As Marshall emphasizes in McCulloch, a Constitution that is designed to endure must "be adapted to the various crises of human affairs."  To do anything else is rank stupidity, turning the Constitution into a vaunted "suicide pact."  Well, the crisis is the Trup presidency, and executive powers doctrine, at least during this administration, must be adapted to recognize that reality.

As is usually the case, I will allow comments, but I would, if I could, limit comments to those who have in fact read the paper.  If you haven't, you should at least say so.
Posted 6:32 PM by Sandy Levinson [link] (65) comments

Scenes from a Disjunctive Presidency

JB

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Posted 10:31 AM by JB [link]

Why impeachment and the 25th Amendment are not sufficient safeguards against a truly terrible president

Sandy Levinson

This morning I posted a lament, at the Democracy Journal, that our Constitution does not include a procedure for firing a dangerous president via a vote of no confidence by Congress.  (Although I don't discuss it there, I'm also open to the project of a national recall election, but that is obviously more problematic than a congressional solution.)  Given that I have been a critic of the Constitution now for over a decade, I am often ask what my number one criticism is (given that I have so many).  Inevitably the answer shifts, depending on the great issues of the moment.  But right now, at least, I have little hesitation saying that the main defect is that we are confined to talking about impeachment and invocation of the 25th Amendment, each of which presents specific difficulties, and that we have no way of putting pressure on our ostensible representatives to vote no-confidence in a scoundrel.  Perhaps the biggest advantage of such a procedure would be that lawyers would be only minimally involved, unlike impeachment, where we are guaranteed to have shouting arguments about lots of basically irrelevant issues, including original intent and the original meaning, public or otherwise, of "high crimes and misdemeanors."

If one wants to read a demonstration of what can go wrong when academic pettifoggers get involved in discussing how to get rid of our dangerous President, just read Jonathan Turley's piece in the Washington Post.  He apparently believes that the possibility of firing a president via no-confidence procedures would be fundamentally dangerous to our political system.  No doubt there are costs, but he seems to presuppose that Donald Trump is not a clear and present danger to our constitutional order.  He also makes the preposterous assertion that the framers, when drafting the Constitution, were aware of what would become the modern parliamentary process.  They were barely cognizant of what was going on in Great Britain at the time, but Parliament then was nothing like the Parliament that would develop in the 19th and 20th century.  Perhaps there are winning arguments against my proposal, but reliance on the wisdom of the Framers is not one of them.  Their major emphasis in the Federalist, after all, was learning "the lessons of experience," not engaging in religious adherence to what all of them realized was a flawed document.

I'm not really interested in another debate about whether Trump is an awful man and an awful president.  If you like him, OK.  The only thing I'm interested in reading about is whether we would really be worse off if we could fire, by a 2/3 vote of Congress, a president who did lose such public support as to make the firing politically viable.
Posted 7:09 PM by Sandy Levinson [link] (87) comments

The Lost Cause, Trumped

Joseph Fishkin

I can think of only one positive thing to say about the coming out party for white nationalists that all of us are now witnessing, and it is this: in their own uniquely nasty way, these people do seem to be inadvertently helping many Americans gain a clearer-eyed understanding of what the Civil War was about.
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Posted 10:14 PM by Joseph Fishkin [link]

John Bingham on Racial Equality

Gerard N. Magliocca

Let's focus for a moment on an actual hero of the Civil War era--John Bingham.  Here's what the drafter of Section One of the Fourteenth Amendment said at a campaign rally in 1867:

“They undertake to alarm you with the plea that we are about to make the ‘nigger,’ to use their nomenclature, equal to a white man. . . . ‘Niggers equal to white men,’ and they wind up saying, ‘This is a white man’s Government.’ What blasphemy! . . . I thought that in the middle of the nineteenth century it had come to be pretty well known that this world of ours was not made for Caesar, but for man; that it belonged, at last only to the common Father of us all, and to all his creatures who worked well upon it. . . . 

It is a ‘white man’s government,’ is it? Why, the very first blood shed for the assertion of your independence and the establishment of your nationality, upon the field of Lexington, was the blood of a black citizen of Massachusetts. And when they came to the work, after the victory had been achieved, and the independence of the nation acknowledged, of organizing a constitutional government of the United States, in a majority of the States of the Union the black men voted with white men, and the man who denies it is simply ignorant of the history of his own country. . . . 

Your armies bore witness that 175,000 of the black population, made free by the proclamation of liberty, were in the army of the republic. When you consider that the majority of the black population were the slaves of rebels, and within their territory, unable to signify to the United States Government their unwillingness to serve it, the fact that as large a population of the black population as of the free whites rushed to the defense of your flag, speaks well for their patriotism. . . . 

But these Democrats are whining through the streets, ‘You propose to enfranchise the nigger, and disenfranchise the white man.’ That is the point where the difficulty is.  I think the black patriot is as much entitled to vote as Jeff Davis, who is waiting across the border, or any of his followers. The issue is upon us. One third of the whole population of the South are black freemen. They are friends of the Union; and if they are to be permitted to exercise the rights of freemen. Those States must have a republican government, but how can a State be republican in its government where the minority rule over the majority of the natural born citizens of the State?  . . . In South-Carolina the black population exceed in number the white population; and what sort of a republican government will that be, if the white minority, who are traitors, should rule over the majority, who are loyal men? . . . 

You have the power, because of your superior numbers, to disenfranchise four millions of natural born citizens of the Republic.  Suppose the state of things were reversed, and the black men had the power, would you have them deal thus with you and your children? If you would not, you should not deal thus with them.” 

Posted 9:26 PM by Gerard N. Magliocca [link] (126) comments

If federal law prohibits the sports gambling, which way does that cut in Christie v. NCAA?

Marty Lederman

Mark Tushnet suggests that there's a very straightforward way of looking at Christie v. NCAA--namely, as what he calls a federal "preemption" case that can be resolved by ignoring New Jersey law and simply recognizing that the sports gambling in question is prohibited by federal law.  Mark's perspective on the case--what he himself describes as an "unbearably simple-minded" view--might well be right.  It's not clear, however, what should follow in the case if he is right.

The suits in question were brought by the NCAA and the major national professional sports leagues--MLB, the NFL, NBA and NHL--against New Jersey.  Note that the federal government is not a party.  The plaintiffs allege that it was unlawful for New Jersey not to have categorically prohibited sports gambling under state law--or, to be more specific, they allege that New Jersey has affirmatively and unlawfully "authorized" sports betting by "channeling" such wagering into established casinos and racetracks.  The "channeling" in question is effected, claim the plaintiffs, by the simple fact that those are the only locations in the State in which New Jersey law does not prohibit such gambling.  In other words, they complain that New Jersey, far from simply declining to prohibit gambling in the interest of its residents' liberty to wager, has in effect done the bidding of the casinos and race tracks by providing them an effective monopoly.  The state has thereby "authorized" sports betting in such locales, claim the plaintiffs, which allegedly violates a federal law (28 U.S.C. 3702(1)) that makes it "unlawful for . . . a governmental entity to . . . authorize" such wagering "by law."

The plaintiffs succeeded on this argument, thereby securing an injunction against New Jersey, prohibiting the State from "giving effect to" its own 2014 law.  As the plaintiffs' lawyer, Paul Clement, describes it, this injunction "thus requires the State to resurrect and maintain prohibitions on private conduct the State itself chose to repeal."

New Jersey's constitutional defense is that to the extent federal law does prohibit what the state has done, Congress is effectively "commandeering" the New Jersey legislature to criminalize certain conduct, in violation of the Court's so-called "Tenth Amendment" doctrine announced in New York v. United States and Printz v. United States.

Mark's understandable reaction to this suit about what New Jersey has or has not done is:  so what?  The plaintiffs don't really have grounds for complaining about whether or not New Jersey has prohibited the gambling in question, he suggests, because federal law independently prohibits that very same conduct.

Mark might be right about the impact of federal law.  Indeed, in its amicus brief at the cert. stage, the federal government took Mark's view:  The SG urged the Court not to grant cert. because "even if this Court granted review and agreed with petitioners that Section 3702(1) violates the Tenth Amendment, the sports-gambling schemes purportedly authorized by the 2014 Act would still be prohibited by Section 3702(2)."  Paul Clement, representing the NCAA and the sports leagues, argued likewise in his brief in opposition (see pages 33-34).  Unlike Section 3702(1), which regulates governmental entities, Section 3702(2) of the federal law makes it unlawful for a private party, such as the casinos and racetracks in question, to operate a sports betting scheme "pursuant to the law or compact of a governmental entity."

It is unclear--or disputed, anyway--whether the SG and Clement are correct about the scope of the federal prohibition.  In a supplemental filing at the cert. stage, Ted Olson, representing New Jersey, argued that section 3702(2) does not have prohibitory force of its own because the casinos and racetracks in question do not operate gambling schemes "pursuant to" New Jersey law.

I haven't studied the question, and so I don't (yet) have a strong view about whose interpretation of section 3702(2) is more compelling.

Let's assume for the sake of argument, however, that the SG, Paul and Mark are correct about section 3702(2) of the federal law--namely, that it directly prohibits the gambling in question, even though (as far as I know) the federal authorities have never taken any steps to directly enforce that federal law.  Why would that mean, as Mark's post appears to suggest, that the injunction concerning New Jersey law is unobjectionable because "New Jersey's repeal of its prior ban on sports betting is basically irrelevant"?

After all, if the federal government could itself, today, shut down those gambling operations because they violate federal law, what's Congress's possible justification for requiring New Jersey to do so, too?  It's certainly relevant, as a very practical matter, whether one's conduct is prohibited by two sovereigns rather than one--which is presumably why both the plaintiffs and the casinos/racetracks believe that so much is at stake in whether the injunction stands.  This is the way Ted Olson puts the point in his supplemental brief:

If the government is correct and Section 3702(2) prohibits New Jersey's casinos and racetracks from engaging in sports wagering regardless of whether New Jersey continues to prohibit that activity, then invalidation of Section 3702(1) finally would task the federal government with administering and enforcing its own proscription against sports wagering. The end of the federal government's conscription of the States' legislative apparatuses to impose that prohibition, and the restoration of an appropriate line of accountability for it to federal officials, would have immense “practical significance” to Petitioners, the people of the State of New Jersey, and to our system of federalism.

Why is that mistaken?*

(And conversely, I might add, if the SG/Clement/Tushnet reading of federal law is wrong, and Congress has not directly prohibited the sports gambling in question, why is it kosher or defensible for Congress to insist that New Jersey do so, whatever one's views of New York and Printz might be?  What would be Congress's justification, in that case, for not bringing federal resources to bear to prohibit the gambling, but instead shifting all of the burdens to the State to do its bidding?)

_________________
* Only one possible argument comes immediately to mind:  If federal law prohibits the conduct in question, and the intended and foreseeable impact of the selective state prohibition is to funnel gambling proceeds into the pockets of the casinos and racetracks, I suppose it's arguable that the State is, in effect, "aiding and abetting" the federal law violations by those casinos and racetracks, in a way that, perhaps ironically or counterintuitively, it wouldn't be if New Jersey did not ban sports gambling at all . . . and that Congress could logically, and perhaps constitutionally, choose to prohibit such aiding and abetting.  I'd need to think about this argument further if and when Clement and the SG invoke it.
Posted 5:32 PM by Marty Lederman [link]

Anticommandeering, Preemption, and the Common Law: The PASPA Case

Mark Tushnet

Posted 11:35 AM by Mark Tushnet [link]

Blackout

Alice Ristroph

Posted 5:09 AM by Alice Ristroph [link]

Our Unconstitutional Reapportionment Process

Gerard N. Magliocca

This is the title of my new draft paper, which is available here.  Here is the Abstract:

This Article argues that the process used to reapportion representatives among the states after each census violates Section Two of the Fourteenth Amendment. Section Two states that the apportionment of representatives must be done based on population unless a state disenfranchises a sufficient number of people who are presumptively eligible voters. The reapportionment statutes say that apportionment must be done based only on population. By erasing Section Two’s penalty clause, these statutes are unconstitutional. There is time for Congress to correct this error before the next census. If not, then the courts should declare the next reapportionment null and void.

Posted 1:22 PM by Gerard N. Magliocca [link] (21) comments

ACS Junior Scholars Public Law Workshop - call for papers

Joseph Fishkin

Last year, the American Constitution Society hosted its first-ever Junior Scholars Public Law Workshop.  It went so well that we are doing it again this year, at the 2018 AALS Annual Meeting in San Diego.  The deadline to submit a paper is October 18, 2017.  It's open to anyone who has been a full time law teacher for 10 years or less.

For more details click on the "Read more" (or follow this link):

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Posted 11:16 AM by Joseph Fishkin [link]

Robert E. Lee Was a Horrible Racist

Gerard N. Magliocca

The myth of Robert E. Lee as the "Noble Confederate General" is not unlike the myth of Erwin Rommel as the "Noble Nazi General." After a war is over, there has to be some reconciliation between former enemies, and one way to do that is by picking someone on the losing side as a heroic warrior unsullied by what the war was actually about.

There is no doubt, though, that Lee was a despicable person. Set aside the fact (if you want) that he owned slaves and led the military effort (sometimes brilliantly) to save that evil system. Maybe he recanted after the war ended and became a better man.

Er . . . no.  Here is a relevant portion of his 1866 testimony to the Joint Committee on Reconstruction, which wrote the Fourteenth Amendment:

Question:  What is your opinion about its being an advantage to Virginia to keep them there at all. Do you not think that Virginia would be better off if the colored population were to go to Alabama, Louisiana, and the other southern States? 

Answer. I think it would be better for Virginia if she could get rid of them. That is no new opinion with me.
. . . 

Question. Do you not think that the State of Virginia is absolutely injured and its future impaired by the presence of the black population there? 

Answer. I think it is. 

Question. And do you not think it is peculiarly adapted to the quality of labor which would flow into it, from its great natural resources, in case it was made more attractive by the absence of the colored race? 

Answer: I do.

To paraphrase our current President, Lee was an evil loser.
Posted 9:13 PM by Gerard N. Magliocca [link] (123) comments

Defining Racism Downwards

Mark Graber

Posted 9:57 AM by Mark Graber [link]

Are we really a Union?

Sandy Levinson

As I've noted before, my wife and I are publishing our own blog as part of the publication of our book Fault Lines in the Constitution (which, I also note, has received three "starred" pre-publication reviews).  Our latest addresses the extent to which the United States was a "nation" in 1787.  The aspiration in the Preamble that we be a "more perfect Union" is somewhat disingenuous, since it really wasn't clear that we were a Union at all, given tariffs placed on "foreign" commerce from other states and the (justified?) suspicion that South Carolinians and New Englanders really didn't have much in common (other, perhaps, that that some New England merchants were happy to engage in the slave trade).  As we note, at a time when California has banned travel of state employees to Texas in protest of the bigotry of the Texas legislature relating to transgendered people, it seems worthwhile to ask to what extent we really are a Union that will necessarily survive as such. 
Posted 4:49 PM by Sandy Levinson [link]