Balkinization: November 2017

Balkinization
an unanticipated consequence of
Jack M. Balkin

E-mail:
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 Rahman
sabeel.rahman at brooklaw.edu
Alice Ristroph
alice.ristroph at shu.edu
Neil Siegel
siegel at law.duke.edu
David Super
david.super at law.georgetown.edu
Brian Tamanaha
btamanaha at wulaw.wustl.edu
Nelson Tebbe
nelson.tebbe at brooklaw.edu
Mark Tushnet
mtushnet at law.harvard.edu
Adam Winkler
winkler at ucla.edu

Compendium of posts on Hobby Lobby and related cases

The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC

The Anti-Torture Memos (arranged by topic)

Recent Posts

Habeas Corpus in Wartime

The “Responsive City” Reloaded: Can US Cities and Localities Push Against the Trump Administration also in the privacy field?

Stephen A. Douglas's all-important question about judicial legitimacy

Partisanship, Norms and Federal Judicial Appointments

Or Court-Shrinking

More on Court-Packing: The Idaho Workaround

Observations on the Government's first brief in English v. Trump & Mulvaney

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Thursday, November 30, 2017

Habeas Corpus in Wartime

Gerard N. Magliocca

Earlier today a Federal District Judge in Washington DC held a most unusual hearing on a habeas corpus petition. The petition was brought by the ACLU on behalf of an unidentified man who is being held in the custody of the United States. According to media reports, the man is an American citizen who was captured and is allegedly a supporter of the Islamic State. For the past three months or so, this man has been held without being charged with a crime or being designated as an enemy combatant subject to detention in Guantanamo Bay. He is a citizen in legal limbo, though the DOJ attorney assured the District Court that the Government was "diligently" working to decide what to do with this man.

This case demonstrates why people should read Amanda Tyler's exciting new book on Habeas Corpus in Wartime: From The Tower of London to Guantanamo Bay, just published by Oxford University Press. Professor Tyler focuses on the role that habeas corpus and its suspension have played in English and American wars since the 17th century. Her definitive history establishes that the notion that American citizens can be detained for a lengthy period without a criminal charge or a suspension of the writ was invented in the 20th century and is totally at odds with the Framers' view.

I want to raise two broader points that the book made me reconsider. The first is how the debate over originalism is framed. Typically people associate originalism with conservative legal outcomes and living constitutionalism with liberal outcomes. Sometimes that stereotype is true, most notably with respect to abortion. In other instances, though, that view is not true. Applying the original meaning of the Suspension Clause would mean that the unidentified man currently being held as an ISIS suspect must be charged with a crime (which may be impossible given the way in which he was captured) or released. I think it's fair to say that this would be described by most people as a liberal outcome. Two of the dissenters in Hamdi v. Rumsfeld took this position, and they were Justice Stevens and Justice Scalia. It's easy to see how both men (despite their differences) might reach this conclusion. If we paid more attention to how originalism and living constitutionalism function across a wider array of topics, that might illuminate the discussion.

A second piece of "food for thought" from Professor Tyler's book involves the rigidity of the common law and its uncomfortable fit with modern jurisprudence. One reason why the Court might have rejected the original meaning of habeas suspension in Hamdi is that the choice between a criminal charge and freedom seems unsophisticated. Surely there is a middle ground, the argument might go, that was not appreciated in the past or is more suited to the current problem (in other words, dealing with alleged terrorists). In some respects, of course, we have moved beyond the common law's binary solutions towards something more nuanced. (A simple case would be the shift from contributory to comparative negligence in torts by most states.) And one can understand how all-or-nothing solutions may find a hard time garnering the votes of five Justices. Still, nuance is sometimes overrated, and there are instances in which the common law arrived at the best solution. I think that the history that Habeas Corpus in Wartime proves that the common law was right and Hamdi was wrong, but I leave that for readers to judge for themselves.

Posted 9:19 PM by Gerard N. Magliocca [link] (44) comments

Wednesday, November 29, 2017

The “Responsive City” Reloaded: Can US Cities and Localities Push Against the Trump Administration also in the privacy field?

Guest Blogger

Bilyana Petkova

In a recent exhibition of Mark Tobey at the Peggy Guggenheim Museum in Venice, the curators beautifully invoke Tobey’s fascination with the City – “its dizzying, towering architecture, thoroughfares and pervasive whirl of electric light”. There are many reasons to be fascinated with modern urban centers – above all, their dynamic ambiguity – the controversial middle space they occupy between catalysts of both inequality and equality, of hope and hopelessness. But as new technologies are eroding the famed anonymity of city life, are our cities becoming also final bastions of privacy protections?

Posted 6:56 PM by Guest Blogger [link]

Stephen A. Douglas's all-important question about judicial legitimacy

Sandy Levinson

What follows should be read in the context of Richard Primus’s and Keith Whittington’s absolutely superb postings on the issues raised by the proposal to pack the federal judiciary with Trump nominees chosen, de facto, by a combination of the Federalist Society (Leonard Leo) and the Heritage Foundation. I agree that this exemplifies “constitutional hardball.” There’s no doubt about the formal power of Congress to adopt the proposal, but there should be as little doubt that its adoption would fray our “mystic bonds of Union” even further.

What I find particularly depressing about the defense offered of the Calabresi-Hirji proposal, helpfully linked in Richard’s post, is its last paragraph. I have known and liked Steve Calabresi for many years. He is an honorable man, as illustrated by his vehement opposition to the charlatan Donald Trump in the last election. On another matter, he is also part of a wide-ranging group of academics who agree that life tenure for Supreme Court justices is a mistake and should be modified; we disagree on whether this requires a constitutional amendment (his position) or could be done through carefully crafted legislation (my view). Many, though not all, of the arguments would apply to life tenure for "inferior judges," who, as a result of the shrinking Supreme Court docket, are in fact ever more important in the actual governance of the US. In any event, he is a careful scholar, even if one disagrees with many of his arguments (as I do, for example, with regard to the "unitary executive"). Thus it is especially dispiriting to read the argument set out in his conclusion:

Voters who told pollsters in 2016 that they cared more about judicial selection broke heavily in favor of Donald Trump over Hillary Clinton. Donald Trump ad a popular mandate to pick Justice Scalia’s successor and to pick a whole lot of other lower court judges like him. Make no mistake about it Professor Primus. The American people are against you on judicial selection.

Make no mistake: This is the argument of a propagandist, not a careful scholar. This is also true, incidentally, of his argument that the fact that Republicans have won roughly 60% of the presidential elections--though not, of course, elections to the Senate--over the last half-century means they are entitled to have 60% of appointments to the federal judiciary. Begin with the obvious point that Donald Trump did not come close to carrying even a plurality of “the American people.” All one can say, arguendo, is that people who rated judicial selection as their primary criterion broke in favor of Trump. One suspects this is a proxy for Evangelical Christians, given Donald Trump's patent flouting of all of the self-professed "values" held by such Christians--see, e.g., Michael Gerson's invaluable columns in the Washington Post on this point--though, interestingly enough, not for the 2016 version of Steve Calabresi and other principled conservatives like Ilya Somin and Jonathan Adler (and many others) who were willing to subordinate their desire for compatible appointments to the recognition that Donald Trump was manifestly unfit to serve as President of the United States. But this is not to say that those who voted for Clinton were indifferent. Most (though not all) simply had more genuine respect for their candidate than many Trump voters had for their champion. Clinton supporters had higher priorities, such as medical care, demonstrated knowledge about the world, and overall competence. In any event, the Calabresi-Hirji argument is basically founded in Jacobin majoritarianism centered on presidential power, a position not often linked with the professed views of the Federalist Society that Calabresi helped to found and which proudly uses a portrait of James Madison in its logo.

Posted 1:04 PM by Sandy Levinson [link] (40) comments

Partisanship, Norms and Federal Judicial Appointments

Guest Blogger

Keith E. Whittington

The politics of federal judicial appointments is as heated and as high-profile now as it has ever been in American history. For an important segment of both political parties, the federal courts have become a critical policymaking institution, and as a result both parties have been pushed to treat judicial appointments as an important political battleground.

Political scientists have long argued that courts are inevitably political institutions. They decide important questions of public policy, and they are constituted by political means. Federal judges might sit one remove from electoral politics, but that is not enough to place them outside of politics. Voters, interest groups, and elected officials have not always been deeply motivated to focus their attention and energy on the courts, but courts have periodically taken the center stage of American politics.

The courts are the third branch of government laid out in the U.S. Constitution. While individual judges are made independent from the elected branches of government, the judiciary as a whole is largely made dependent on the goodwill of the legislature and the executive. The courts have been a political prize to be won and a lagging indicator of political success. Through that political influence, the effective constitutional rules of the political system itself are ultimately responsive to political currents. As Jack Balkin has noted, a party that can win the “constitutional trifecta” and control all three branches of government has enormous opportunities to reshape the political landscape.

Political parties can most directly shape the federal judiciary by placing judges on the bench. They can do that through the familiar process of selecting like-minded judges to fill vacancies, but they can also do that through the less-familiar process of increasing the number of vacancies to be filled by expanding the bench. The American political parties have periodically sought to create a friendly federal judiciary by creating more judgeships. As Justin Crowe had detailed, partisan and policy calculations have rarely been absent from congressional decisionmaking on whether to expand or reorganize the federal courts. President Franklin Roosevelt’s ill-fated proposal for “judicial reorganization,” or less euphemistically “Court-packing,” not unlike the Federalist Party’s lame-duck judicial reform of 1801, became an infamous case of political overreach. The reaction to those efforts to manipulate the federal judiciary for partisan ends helped construct our “small-c constitution,” the norms and practices that bolster and extend the rules formally entrenched in our textual Constitution. We have taken the lesson of the Court-packing plan to be that elected officials should not push too hard to reshape the courts.

But what counts as “too hard”? In the summer of 1968, Chief Justice Earl Warren and President Lyndon Johnson tried to insure that a Democratic appointee would succeed Warren, even as the Democratic presidential hopes in 1968 looked increasingly dim. Warren’s strategically timed retirement was called out for the political ploy that it was, and even a Democratic controlled Senate balked at confirming Abe Fortas as chief justice on the eve of the election, and so the seat fell to the Republican Richard Nixon to fill after the inauguration. On the other hand, the Democratic Party took advantage of their return to unified control of Congress and the presidency after Watergate to reorganize and expand the federal judiciary. President Jimmy Carter was somewhat unlucky in not seeing a Supreme Court vacancy during his one term of office, but thanks to Congress he was able to fill an unusually large number of seats on the federal circuit courts. Since the 1980s, Republicans have been routinely charged with trying to “pack the courts,” not because they have been manipulating the number of available judgeships but because they have been unusually focused on the judicial philosophy of their nominees when filling routine vacancies.

Posted 7:30 AM by Guest Blogger [link]

Tuesday, November 28, 2017

Or Court-Shrinking

Gerard N. Magliocca

The back-and-forth on dramatically increasing the number of federal district and circuit judges is splendid stuff. I'm particularly pleased that my friend Brian Kalt, who is a terrific scholar, now has a proposal named for him coined by another friend, Richard Primus, who also does fantastic work.

Having said that, I want to comment that Richard's hypothetical Idaho scenario is not far removed from what occurred in 1802 when Congress engaged in "court-shrinking." In 1801, the outgoing Federalist Congress enacted a Judiciary Act that created many new circuit judgeships. President Adams then appointed (and the Senate confirmed) many new circuit judges. (These were the infamous "midnight judges.") One year later, a Jeffersonian Congress repealed the 1801 Act.

What happened to the circuit judges confirmed in 1801? The answer is that they were fired. But how can that be? Didn't they receive lifetime appointments subject to removal only by impeachment? And even if they could be stripped of their authority (as per Richard's hypothetical of a "rotten circuit"), weren't they at least entitled to draw their judicial salaries for doing nothing?

An outstanding Note from five years ago went into these questions. (Jed Glickstein, After Midnight: The Circuit Judges and the Repeal of the Judiciary Act of 1801, 24 Yale L.J. Human. 543 (2012). Glickstein found that the Midnight Judges considered a constitutional challenge to their removal, but decided instead to lobby Congress to pay them their salaries. Congress refused to appropriate the money, and that's where the debate ended.

One conclusion you could draw from this precedent (which was part of an era of constitutional hardball) is that Congress can engage in court-shrinking in response to court-packing. Or perhaps there is the more modest conclusion that Congress should pay judges sent into Kalt Law limbo for their troubles, even if such payments are not constitutionally required. Or how about we turn away from this nonsense and focus on more pertinent problems.

Posted 2:49 PM by Gerard N. Magliocca [link] (55) comments

More on Court-Packing: The Idaho Workaround

Richard Primus

Over at the Harvard Law Review’s new blog, I have a short essay about the court-packing plan that Steven Calabresi and Shams Hirji recently proposed. The bottom line of my essay is that the Calabresi-Hirji proposal is big-C constitutional and small-c anti-constitutional. It’s within Congress’s formal authority to enact, but it rests on a view of partisan conflict as death struggle rather than as competition between legitimate alternatives within a constitutional order, and if enacted, it could crash the system.

Further specification of that idea is the work of that other essay. So if you have the time and interest to read both that post and this one, read that one first. And there have been several thoughtful posts on this blog and elsewhere since I posted my essay, from multiple points of view. Readers interested in a broad conversation could read Jack Balkin, Mark Tushnet, Ilya Somin, Josh Blackman, Neil Siegel, and David Super, as well as a response to my initial essay from Calabresi and Hirji themselves. I particularly recommend the Calabresi-Hirji response.

A predictive note: My sense, for what it is worth, is that Congress is unlikely to pass Calabresi-Hirji (though more moderate expansions of the judiciary are more conceivable). That’s not because I think the procedural rules of the Senate guarantee that such a proposal couldn’t be enacted without sixty votes: Calabresi-Hirji is what Tushnet calls constitutional hardball, and when hardball is the game it’s a mistake to put too much stock in procedural rules that are subject to manipulation or modification. My reason for suspecting it won’t happen is about the merits. If I were guessing, I’d guess that there are enough Republicans who would oppose the idea, whether for reasons of principle or prudence or both (and yes, one might challenge the dichotomy), that Calabresi-Hirji could not get through Congress. To be sure, I could be wrong: two years ago I was confident that the Republican Party would not nominate Donald Trump, so I recognize that my sense that Calabresi-Hirji won’t be enacted could be yet another instance of my own remaining naivete. Still, as of today I think it unlikely. But even if we knew for certain that the proposal would not be adopted, it would still be well worth discussing. The fact that it can be proposed at all by a player as prominent and consequential as Calabresi is itself a salient fact about the state of constitutional discourse, and constitutional conflict, at the present moment.

On that understanding, I want to use this post to go deeper into one part of the analysis I presented in my prior essay: the question of how the Democrats would respond the next time they had unified control of the elected branches, were Calabresi-Hirji to be enacted now. Again, the point here isn’t prediction, unless I’m wrong about whether Calabresi-Hirji is going to be enacted. Instead, I want to use Calabresi-Hirji to offer thoughts about two important and related subjects in constitutional theory. One is the nature of constitutional hardball. The other is the relationship between the written Constitution and the set of norms that might be called the small-c constitution—including, in the end, the way that intuitions about the latter shape what we think the former says.

Posted 8:39 AM by Richard Primus [link]

Observations on the Government's first brief in English v. Trump & Mulvaney

Marty Lederman

President Trump and Mick Mulvaney have filed their opposition to Leandra English’s motion for a temporary restraining order against Mulvaney. The motion is now in the hands of newly appointed Judge Timothy Kelly. Here are some quick observations about the government’s brief:

1. On the key merits point—whether the 2010 Dodd-Frank statute providing that the Deputy Director “shall serve” as acting Director in the case of a vacancy supersedes the President’s authority under the Vacancies Reform Act of 1998--DOJ somewhat surprisingly continues to lead (p.11), as did the OLC opinion issued on Saturday, with a quotation from the 1998 Senate Report. In my post Sunday, I explained why such reliance, on (unpersuasive) report language concerning language in a proposed version of the VRA that was altered by the time Congress enacted the legislation, is unpersuasive.

2. The quotations in the brief from the 1998 Senate Report are a cut-and-paste job from passages two pages apart in the Report, and (as I explained on Sunday) elide the key language from the second of those passages. Use of such selective and disingenuous quotation as the lead argument undermines, rather than supports, DOJ’s proposed reading of Dodd-Frank’s “shall serve” provision.

3. DOJ adverts, almost as an afterthought (pp. 12-13), to Dan Hemel’s argument about subsection 5491(a) of Dodd-Frank (“Except as otherwise provided expressly by law, all Federal laws dealing with public or Federal contracts, property, works, officers, employees, budgets, or funds, including the provisions of chapters 5 and 7 of title 5, shall apply to the exercise of the powers of the Bureau.”). I'm not persuaded by that argument, because the “shall serve” provision in the very next subsection is such an express provision of law; but, in any event, that argument is now in play, too.

4. DOJ relies heavily throughout the brief on the authority of Saturday's OLC opinion, only to then (fn. 2) weirdly "reserve the right to contest" OLC's conclusion--from just two days earlier!--that the phrase "absent or unavailable" in Dodd-Frank section 5491(b) covers cases of resignation by the Director.

5. The brief also oddly states at least five times that Director Cordray "purported" to name Leandra English as Deputy Director--and even reserves the right (fn.2) to contest whether she is the Deputy! I have no idea what the (unstated) theory might be to challenge that appointment.

6. Footnote 2 hints that Trump could (and might) remove English at will. See my post yesterday on why that prospect casts a deep shadow over this legal dispute.

7. As it seems to do as a matter of course these days, DOJ trots out its new favorite Mississippi v. Johnson argument (p.14), insisting that the court cannot issue the requested injunction even if Mulvaney is serving unlawfully:

[E]ven if the President’s designation of Acting Director Mulvaney was not authorized by the VRA, this Court would still lack jurisdiction to grant Plaintiff her requested relief of an injunction against the President. The Supreme Court has long held that courts have “no jurisdiction of a bill to enjoin the President in the performance of his official duties.” Mississippi v. Johnson, 71 U.S. at 500–01 (“The Congress is the legislative department of the government; the President is the executive department. Neither can be restrained in its action by the judicial department.”). Given the President’s unique status in the constitutional scheme, the Court cannot issue an injunction restraining the President’s exercise of his appointment power.

I’ve elsewhere explained why DOJ has, well, stayed in Mississippi a bit too long. (See also Steve Vladeck’s comprehensive post.) The Mississippi v. Johnson argument is especially misplaced here, because English has requested relief against an officer other than the President (“plaintiffs request that the Court . . . [o]rder that defendant Mulvaney shall refrain from accepting any appointment to the position of Acting Director of the Consumer Financial Protection Bureau, or asserting or exercising in any way the authority of that office”) that would resolve the case.

8. Several career CFPB attorneys signed the brief, suggesting that there's little or no resistance in the agency to Mulvaney's assertion of authority. Indeed, the brief states categorically (p.4) that "CFPB staff (with the exception of Plaintiff) is treating Mulvaney as the Acting Director."

Posted 3:58 AM by Marty Lederman [link]

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