A Very Strange Debate

David Super

     Even before last week’s impeachment vote in the House, a strange debate had begun about how the House should proceed with its articles of impeachment.  Some have suggested that the House should never send those articles to the Senate to trigger a trial on whether President Trump should remain in office.  Others have suggested that the House should wait until later in the year or somehow hold those articles hostage until Senator McConnell agrees to trial procedures to the Democrats’ liking.  Some have suggested that the Senate could go ahead and hold an impeachment trial without the House forwarding its articles of impeachment.  In the course of this debate, scholars have opined on such esoteric questions as when is a president truly impeached. 

     Many of the commentators participating in this debate rely on misunderstandings of congressional procedure.  Others operate on rather fanciful understandings of politics.  And all too many are trying to find a clear legalistic answer to a question that is essentially one of public perceptions.  I believe that the House should present its articles of impeachment to the Senate as soon as possible after Congress returns in January and that failing to do so is likely to undermine the very purposes the House has sought to serve through impeachment. 

     Any analysis must, of course, start with the question of what those purposes are or should be.  It is not, as some Republicans like to claim, reversing the result of the 2016 election.  The most impeachment could possibly achieve would be to install Vice President Pence, who prevailed in that same election and has enthusiastically supported President Trump’s policies without exception.  And even if the indications of Vice President Pence’s involvement in extorting Ukraine blossomed into something worthy of impeachment, the Republican Senate would never remove him from office before he had had the chance to appoint, and Congress to confirm, a new Republican vice president. 

     The realistic goal also cannot be removal of Donald Trump from office before the expiration of his current term.  We have absolutely no indications that anything like twenty Republican senators would even consider removing him from office.  Some have suggested that postponing the trial until after the Senate primaries will free Republican senators to vote to remove President Trump.  That is unrealistic for several reasons.  First, many of the primaries are quite late:  more than half are during or after August.  Holding an impeachment trial in the summer to foreshorten presidency subject to the voters’ review a few months later will strike many voters, including plenty who are skeptical of President Trump, as gratuitous.  Second, even apart from primaries, Republican senators in contested races will fear dampened enthusiasm among the President’s base should they vote to remove the President could dampen general election turn-out.  Third, the numbers are wrong:  the number of Republican senators up for re-election is just barely enough to supply the votes needed to convict, and that is counting some of the President’s biggest congressional supporters.  Finally, and most crucially, very, very few Republican senators have given even the slightest indication that they have any interest in removing the President.  This Trump exceptionalism – the delusion that the President is an aberrational figure in a largely wholesome Republican Party – is one of the greatest impediments to thoughtful responses to the current situation.  I have yet to hear a plausible list of potential removal-voting Republican senators with even a dozen names, much less twenty. 

     The Democrats’ plausible goals for impeachment are, and have always been, considerably more modest:  to better inform the U.S. electorate of some of the unlawful and unethical actions taken in their name, to compel congressional Republicans to choose between defending the Constitution and defending the President, and to deter this sort of behavior in the future.  The cost of achieving these goals has always been steep:  forcing Democrats in pro-Trump districts to cast difficult, perhaps lethal, votes and increasing the cynicism of relatively apolitical voters who condemn “squabbling” without looking thoughtfully at the merits. 

     For many months after last year’s election, Speaker Nancy Pelosi took the view that this price was too high, that congressional Democrats would damage themselves more than they would the President by pursuing impeachment.  As one of the most successful politicians of our era – one who led Democrats to a House majority not once but twice and who has remained true to Democratic priorities throughout her career – the Speaker’s voice bears careful consideration. 

     The combination of the President’s brazenness in seeking to extort Ukraine into helping his re-election and ceaseless pressure from Democratic activists persuaded her to reverse course.  In the process, she brought along every Democrat except Rep. Colin Peterson, whose Minnesota district is deeply conservative, Rep. Jeff Van Drew, who turned out not to really want to be a Democrat, and Rep. Tulsi Gabbard, who long ago demonstrated that she has a very different agenda.  Forcing Democrats in conservative districts to cast votes that their opponents will portray as ultra-partisan and mean-spirited could cost Democrats enough seats to lose control of the House in the next Congress; even if it does not, it could leave them with a bare majority but little ability to win controversial votes. 

     It seems quite remarkable that some voices are now suggesting that the House Democrats, having paid this price for impeachment, should give up the benefits of holding a Senate trial to further educate the electorate and to force Republican senators to decide whether to declare the President’s conduct acceptable.  (Until the House “exhibit[s]” authenticated articles of impeachment to the Senate, Senate rules make no provision for holding an impeachment trial – and Senate Republicans clearly would not want to do so in any event.)  If House Democrats did not want a Senate trial, they should have passed a resolution of censure instead, putting their endangered Members in much less of a bind.  Playing arcane procedural games that few voters will understand seems likely only to exacerbate public cynicism and the difficulties of endangered House Democrats. 

     The notion that, by withholding the articles of impeachment, House Democrats can extract procedural concessions from Senator McConnell, is preposterous.  As Senator McConnell has pointed out repeatedly, threatening to withhold something he does not want provides little leverage.  It is like my saying I will refuse to dump a thousand gallons of toxic sludge on your lawn unless you give me a million dollars.  On the other hand, as I previously explained here and further elaborated in the Washington Post, permanent Senate rules and the decisions of Chief Justice Roberts, not Senator McConnell, will set the rules for a Senate trial and are likely to give the House’s impeachment managers ample opportunity to subpoena Administration officials.  Senator McConnell clearly knows this; the Democrats would do well to tailor their strategy accordingly. 

     As for the questions of whether President Trump really has been impeached if the House never sends articles of impeachment to the Senate and whether the President would prefer to prevail in a Senate trial or to never have one, I do not know and I do not care.  The former is a question of empty symbolism:  the President’s place in history will not be determined by such technicalities but rather by his unprecedented relationship with Russia, by his transformation of the mores of the presidency, and by his throwing sobbing immigrant children into cages.  The second question represents an unhealthy substitution of personal concerns for advancing the well-being of the country:  we should be focusing on restoring our political institutions – which includes in part communicating with voters in ways they understand – and on ending our shameful treatment of immigrants rather than on the vanity of one man. 

     A Senate trial is no panacea.  It will end with acquittal.  But voters who discounted the House hearings as a partisan spectacle may find a Senate trial, with the President fully represented and the Chief Justice presiding, much more persuasive.  And establishing once and for all which senators are willing to accept what the President has done may play an important role in reforming or replacing the Republican Party. 



@davidasuper1
Posted 5:18 PM by David Super [link]

The Impeachment Oath and the Article VI Oath

David Pozen

Posted 11:43 AM by David Pozen [link]

Invisible Workers on the Global Assembly Line: Behind the Screen

Guest Blogger

Catherine Powell and Abigail Van Buren

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Posted 3:00 PM by Guest Blogger [link]

Obamacare, Separation of Powers, and Accountability

Abbe Gluck

Yesterday, the Fifth Circuit finally issued a decision Texas v. U.S, the latest existential challenge to the Affordable Care Act---which many forget was entirely struck off the books last year by a federal judge in Texas known for his anti-ACA rulings.  Rather than reverse the lower court outright, however, the Fifth Circuit sent it back down, effectively kicking the case--and the Trump Administration's accountability for its efforts to destroy the law--until after the election, just as the Administration had hoped.

The opinion is important because it correctly chides the lower court for ignoring the position of the 2017 Congress when the court decided that the entire ACA must fall simply because Congress zeroed out the penalty that was to enforce the ACA's insurance-purchase requirement. The case also illustrates the very important role that severability doctrine plays in separation of powers-- the  lower court substituted its own policy judgment about the ACA for the clearly expressed position of the 2017 Congress (a position notably taken after more than 60 failed attempts to repeal the law) that the ACA should remain in place.   I have more to say about it in this op-ed,  just published in the NY Times, which begins as follows.

Posted 4:01 PM by Abbe Gluck [link]

The problem isn't GOP Senators' lack of "impartiality"--it's that they're all insisting the President did nothing wrong

Marty Lederman

David suggests this could present a problem for Lindsey Graham, who's already declared he's "not trying to pretend to be a fair juror here” and will vote against removing the President.  Perhaps.  But I'm not sure the absence of "impartiality" is the crux of the real concern here.

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Posted 8:39 AM by Marty Lederman [link]

Withholding the Articles of Impeachment

Gerard N. Magliocca

The question on the table now that President Trump is impeached is when the trial might occur. I say "might" because some members of the House are arguing that managers should not be appointed to prosecute the case until the Senate gives some assurances about the trial process. Taking that point one step further, others are claiming that the House can refuse to appoint managers and that (if none are selected) no trial can occur and no acquittal can be rendered.

I don't think that this latter claim this is correct. The Constitution grants the Senate the sole power to try impeachments, subject to only the requirements listed in Article One, Section Three. The House can choose to boycott a Senate trial, I suppose. But I don't see why the Senate cannot hold a trial based on the articles of impeachment themselves and the existing written record. Granted, trials in absentia invariably involve defendants who boycott the proceedings, not prosecutors. To hold that the House's presence at the trial is constitutionally required, though, strikes me as an infringement upon the Senate's exclusive power over impeachment trials.
Posted 10:00 PM by Gerard N. Magliocca [link] (122) comments

How Will the Senate Proceed on Impeachment?

David Super

     With Senate Majority Leader Mitch McConnell declaring that there is no daylight between his and the White House’s plans for an impeachment trial, many Democrats have begun raising the specter of a sham trial that leaves the President’s conduct all but unexamined.  Senate Minority Leader Charles Schumer drew headlines with a letter to Senator McConnell setting out his caucus’s desires for how a trial should proceed.  Sen. McConnell’s negative response brought Democratic charges of a cover-up.

     Strikingly missing from this coverage is a realization that Sens. McConnell and Schumer are, in fact, two of the least-important figures in determining how an impeachment trial would occur.  This trial, like most trials, will be governed by standing procedural rules, the presiding judge, and the initiatives of the parties to the proceedings.  Those will be Chief Justice Roberts, the impeachment managers appointed by the House, and President Trump.  Senator McConnell is little more than the equivalent of the foreman of the jury. 

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Posted 3:41 PM by David Super [link]

The Good Ol' Days of Solicitor General Humility (and Reconsideration): Some Things You Probably Didn't Know About Myers v. United States [UPDATED]

Marty Lederman

I was just rereading the briefs and arguments in the landmark Myers v. United States (1926) case, and ran across a small thing I thought some readers might appreciate, reflecting how very different Supreme Court practice is today than it was a century ago.
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Posted 9:56 AM by Marty Lederman [link]

Symposium on Mary Anne Franks, The Cult of the Constitution: Collected Posts

JB

Here are the collected posts for our Balkinization symposium on Mary Anne Franks' new book, The Cult of the Constitution (Stanford University Press, 2019).


Frank Pasquale and Danielle Keats Citron, Introduction to the Symposium

Anupam Chander, Mary Anne Franks as Constitutional Truth-Teller

Joseph Blocher, The Second Amendment of Things (and Grievances)

Claudia Haupt, First Amendment Fundamentalism and Doctrinal Disarray

Jack Balkin, An Anti-fundamentalist Believer in the Church of the American Constitution

Leslie Kendrick, A Tale of Two Cities: Mary Anne Franks’s The Cult of the Constitution

Jeff Kosseff, The View from the Cult

Frank Pasquale and Danielle Keats Citron, Making a Virtue Out of Neglect: How Laissez-Faire Constitutionalism Exacerbates Big Tech’s Absentee Ownership Problem

Sanford Levinson, It's So Difficult to Break Free of a Cult

Mary Anne Franks, Constitutional Reckoning



Posted 9:30 AM by JB [link]

Involving Orcs

Andrew Koppelman

Posted 4:01 PM by Andrew Koppelman [link]

Analyzing the Articles of Impeachment

Stephen Griffin

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Posted 6:15 PM by Stephen Griffin [link]

Constitutional Reckoning

Guest Blogger

For the Symposium on Mary Anne Franks, The Cult of the Constitution (Stanford University Press, 2019).

Mary Anne Franks

Posted 1:25 PM by Guest Blogger [link]

Fairness for All, a good idea nearly everyone hates

Andrew Koppelman

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Posted 6:07 PM by Andrew Koppelman [link]

The Constitutional Politics of Impeachment

Mark Graber

My thoughts over on Jurist
Posted 5:29 PM by Mark Graber [link]

Symposium on David Schwartz, The Spirit of the Constitution-- Collected Posts

JB

Here are the collected posts for our Balkinization  symposium on David Schwartz’s new book, The Spirit of the Constitution: John Marshall and the 200-Year Odyssey of McCulloch v. Maryland (Oxford University Press, 2019).

1. John Mikhail, Introduction to the Symposium on David Schwartz, The Spirit of the Constitution

2. Richard Primus, Marshaling McCulloch

3. Mark R. Killenbeck, Accidents of History?

4. Franita Tolson, What is "Appropriate" Legislation?: McCulloch v. Maryland and the Redundancy of the Reconstruction Amendments

5. Kurt Lash, McCulloch v. Madison: John Marshall’s Effort to Bury Madisonian Federalism

6. Sandy Levinson, Does Importance Equal Greatness? Reflections on John Marshall and McCulloch v. Maryland

7. Victoria Nourse, McCulloch v. Maryland: Not Only Right, But Inevitable

8. Mark Graber, McCulloch and Fundamental Rights Regimes

9. John Mikhail, McCulloch, Slavery, and the Sweeping Clause

10. David Schwartz, McCulloch’s “Perpetually Arising” Questions

11. David Schwartz, Burying McCulloch?



Posted 1:30 PM by JB [link]

Fair Play or the Rule of Law?

Gerard N. Magliocca

The rule of law is at the center of modern constitutional thought. The phrase "rule of law" was coined in the late nineteenth century by A.V. Dicey, the influential British constitutional scholar. People have different views about what this ideal means today, but the importance of the rule of law is not denied. Indeed, we often hear worries that government actions pose a threat to the rule of law or are vital to  protecting that principle.

If you look back at the leading democratic leaders of the twentieth century, though, they said little about the rule of law. Instead, they emphasized the importance of "fair play." For instance, in his 1937 Constitution Day Address, President Franklin D. Roosevelt said: "The surest protection of the individual and of minorities is that fundamental tolerance and feeling for fair play which the Bill of Rights assumes. But tolerance and fair play would disappear here as it has in some other lands if the great mass of people were denied confidence in their justice, their security and their self-respect." In 1946, Winston Churchill told a Dutch audience that one of his tests for a successful democracy was whether independent courts “administer public and well-established laws associated in the human mind with the broad principles of fair play and justice? Will there be fair play for the poor as well as the rich? Will there be fair play for private persons as well as for Government officials?"

I do not know why fair play fell into decline as a democratic principle or why the rule of law became the slogan of choice. There is, though, an important difference between the two. The rule of law says  nothing about the substance of the law or about governmental norms. By contrast, fair play is a test that governs all official actions and does speak to the substance of what they do. One might say that the rule of law is a necessary, but not a sufficient, condition for constitutional democracy. 

Consider the current impeachment inquiry. When people allege that the President abused his power, they do not mean that he violated a statute or a court order. They are saying instead that he was being deeply unfair to the other party--it was not fair play. There are many legal actions that can be seen as not fair play (including FDR's own Court-packing plan, defeated in 1937). But how should fair play be defined? How did these past leaders define that idea? These are important questions worth asking.  
    
Posted 9:20 PM by Gerard N. Magliocca [link] (113) comments

Drafting Articles of Impeachment

Stephen Griffin

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Posted 10:29 AM by Stephen Griffin [link]

Burying McCulloch?

Guest Blogger

For the symposium on David S. Schwartz, The Spirit of the Constitution: John Marshall and the 200-Year Odyssey of McCulloch v. Maryland (Oxford University Press, 2019).





Posted 9:30 AM by Guest Blogger [link]