Who's on Ethical Thin Ice in the Hargan v. Garza Abortion Case?

Marty Lederman

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Posted 1:36 PM by Marty Lederman [link]

European Commission Savages US

Guest Blogger

James Whitman

Last week there was a landmark moment in comparative law, and in the international crisis of liberal democracy. It should not go unremarked. The European Commission, as the New York Times explained in a condescending editorial, “reminded Poland how a democracy acts,” initiating an Article 7 proceeding because the Law and Justice Party has engineered a “clear risk of a serious breach of the rule of law.” The charge, as readers of this blog must all know, is that “Kaczynski and his ilk,” as the Times call them, pushed though judicial “reforms,” with the result, in the words of the Commission, that “the country’s judiciary is now under the rule of the political majority.”

Now, I have no patience for Kaczynski and his ilk, and none of us should. But there is something unbecoming about an American newspaper, and Americans more broadly, sniffing at a country where “the judiciary is now under the rule of the political majority.” If we’re just going to engage in unselfconscious preaching, we will miss an opportunity to think hard about the way things are done here at home.

The Commission’s press release is not a model of clarity on what might count as a “serious breach of the rule of law,” but the fact is that it has enunciated a crucial rule of law principle in this time of transatlantic crisis. Does it really need to be emphasized that the Commission has come down on Poland at the very moment that the last checks on the politicization of the judicial appointments process have fallen by the wayside in the US Senate? The Europeans—or at least the Western Europeans who are still in control in the EU—have just made a formal declaration of a decisive difference between their understanding of liberal democracy and ours. I think the Commission is on the right side of this divide. Others may differ. But it’s a big post-Cold War moment for all of us when the Europeans effectively declare that there is a serious breach of the rule of law in the United States.

And let’s be clear: The politicization of American judiciary may be reaching its climacteric in the Trump era, but it is much older than that. The Commission is not just (sotto voce) condemning Mitch McConnell. It is condemning an American politicization, or if you prefer “democratization,” of the justice system that goes back at least to the rise of the elected judiciary in the Jacksonian era. The fact is that if Trump and McConnell are succeeding in pulling off a Kaczynksi, it is only because American traditions make it easy for them. In the civilized countries of Western Europe, for those who don’t know, judges are recruited into a highly structured career from a young age, and socialized into the values of professional independence that are the sociological foundation of a meaningful rule of law. And that’s to say nothing of professionalized culture of European prosecutors, European prison officials, and more. I’m sure there’s no hope that the American justice will ever look that. But over the last generation it’s come to look less and less like it, and the European Commission has just called us out.


James Q. Whitman is the Ford Foundation Professor of Comparative and Foreign Law at Yale Law School. You can reach him by e-mail at james.whitman at yale.edu



Posted 1:56 PM by Guest Blogger [link]

What Next? The Fiscal Agenda for 2018

David Super

Posted 1:26 PM by David Super [link]

The SG’s Empty Ethics Case Against Jane Doe’s Lawyers

David Luban

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Posted 11:16 AM by David Luban [link]

Two more remarkable things about the Department of Justice's arguments in the unaccompanied minors' abortion litigation

Marty Lederman

In three recent posts, I've sharply criticized briefs filed by the Department of Justice--and by the Solicitor General, in particular--in the various iterations of the Hargan v. Garza litigation, involving the HHS Office for Refugee Resettlement's new practice of preventing minors in its effective custody from obtaining legal abortions.  (I summarize many of those DOJ failings in a footnote below.*)

Over the weekend, I was listening once again to the oral argument before the D.C. Circuit back on October 20th, and it occurred to me that two further problematic DOJ arguments are also worth flagging.


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Posted 12:39 AM by Marty Lederman [link]

Lawless and Cruel: The HHS Abortion Scandal That's Flying Under the Radar

Marty Lederman

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Posted 1:36 PM by Marty Lederman [link]

The Tax Bill and Constitutional Rot

JB

Previously I argued that the Republican attempt to pass a tax cut in the form of a health care bill was evidence of constitutional rot-- the descent of the United States into a system that is less democratic (responsive to popular will), less republican (i.e., one in which representatives act to further the public good) and increasingly oligarchical. that The new tax bill is further evidence.

The basic problem is that the contemporary Republican Party is largely controlled by its wealthiest donors. To stay in power, Congressional Republicans must please these donors, regardless of any promises made to actual constituents. Some of the ways that you please donors involve ideological symbolism and low-profile deregulation, but others are essentially cash transfers.

Using the apparatus of government to pay off the people who keep you in power is pretty much the whole point of oligarchy. This explains why Republicans must say one thing to their constituents but actually do something very different in their legislation, and why they must disregard the judgment of economists and budget analysts about what the tax bill actually does and will do. The public justification of the bill has--and indeed, must have--relatively little connection to the point of the bill, which is to please the relatively small class of powerful and wealthy people who keep the Republican Party in power. These people support Republicans because they want something in return; what they want in return is cash on the barrel head. The public would not support a bill designed on these terms; hence Republicans had to rush the bill through with no hearings, and dissemble publicly about the nature and effects of their legislation.

While it is possible to imagine tax bills that lower tax rates in the service of public-spirited goals, this tax bill is not one of them. The tax bill is not an attempt to close loopholes in exchange for a general lowering of the corporate and individual rates. The tax bill does not simplify the tax code as promised; it does add provisions that will benefit specific donors and pad the wallets of individual Congressmen and Senators (not to mention President Trump himself). This last feature is doubly worrisome; not only are Congressmen and Senators paying off their donors, they are also paying off themselves. The bill is enormously unpopular with the public, and it should be; the process by which the bill was passed is evidence of a guilty conscience.

The tax bill will create deficits, but the total additional deficits are still relatively small in proportion to the total amount the federal government spends. The problem is not the total amount of the deficit but that the bill shows that Congress has largely abandoned the goal of using tax and fiscal policy to further the public interest. That is, the Republican party has now become anti-republican. Instead, Congress seeks to pay off a small number of wealthy individuals and groups and personally enrich sitting Congressmen and Senators. If some of them lose their seats in the next election, they can retire secure in the knowledge that they have taken care of themselves in anticipation of their next careers in business and lobbying.

The point of tax and fiscal policy in a republican form of government is to raise and spend money to create incentives and purchase public goods that will benefit the public interest.  In oligarchical and autocratic governments, government officials constrict spending on public goods and allow government functions and services to atrophy; they distribute income from the broad base of the public to the wealthy, and they divert government revenues to pay off themselves, their family members, and the class of people who keep them in power. This is also a pretty good description of the new tax bill.

It is important not to be alarmist. The United States is still a wealthy country with a tax system that is still broadly progressive, and a government that still spends a considerable amount on public goods. It can absorb a pretty sizeable amount of corruption and self-dealing and still remain a viable democracy. But the current trend is worrisome. Upward redistribution from the poor and middle class to the wealthy since the end of the 1970s is not simply the result of the economic changes that emerged from globalization; it is also the result of the tax and fiscal policies of an increasingly oligarchical system. These policies have shifted risks away from the upper classes and sent them downward to the broad base of the public, even as they have shifted the proceeds from economic growth upward. The Trump era is simply the exaggeration of existing trends.

Yet if the current trajectory continues, we are likely to see an increasing degradation in government functions, a withering of social insurance programs that benefit the poor and middle class, and ever increasing upward redistribution and self-dealing. These are signs of a political economy that cannot support a vibrant democracy; they are evidence of increasing constitutional rot.

I am hopeful that the public will punish the Republican Party for the tax bill in the coming election cycle. Even so, the way our system of government works, it will be very difficult to undo the self-dealing and upward redistributive effects of the bill for some time.

A strongly polarized politics combined with our presidential system of government means that it is easier to use polarization to get in power, redistribute income upwards and get away with it. That is why polarization tends to work hand in hand with increasing income inequality: Inequality leads to popular outrage, which leads to faux populist candidates who stoke anger and distrust of government but actually pay off wealthy donors with legislation that shifts risks onto and income away from constituents. This produces even more unhappiness, distrust and polarization, and the cycle continues. This cycle of polarization and income inequality is also a feature of the constitutional rot of our current system of government.

Matters are far from hopeless. America lived through the First Gilded Age, generating the populist and progressive movements and the New Deal. Something like this might well happen as a result of this, our Second Gilded Age. But if history is any guide, it will be a long, slow, imperfect and fraught process.  My expectation, or rather my hope, is that we are actually fairly far along in this historical transformation, and that the next few election cycles will see a significant change in the terms of our politics-- for the better.




Posted 9:35 AM by JB [link]

Can a sitting President be sued in a state court?

Richard Primus

Posted 8:24 AM by Richard Primus [link]

State "Hostility" to Religion Without Religious Discrimination?: The Unexpected Free Exercise Issue Lurking in Masterpiece Cakeshop

Marty Lederman

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Posted 6:08 PM by Marty Lederman [link]

[UPDATED to account for developments through Tuesday morning, 12/19] HHS's shocking new justification for preventing 17-year-old girls in its custody from obtaining abortions: It knows more than they do about whether the abortions would be in their best interests

Marty Lederman

Posted 10:20 AM by Marty Lederman [link]