On being an American patriot

Sandy Levinson

         Steven B. Smith, who teaches political theory at Yale, has just published, with the Yale Press, an interesting book Reclaiming Patriotism in an Age of Extremes.  A quite slender book, it does not purport to offer a comprehensive theory of patriotism across vast times or space; instead, it is basically a heartfelt missive to his fellow Americans (and, perhaps, fellow academics) about what can be said about American patriotism at this particular juncture in our history.  He is clearly concerned that a mixture of multiculturalism and post-modernism--the former probably more of a genuine reality than the latter in the present intellectual moment--has eroded any genuine notion of patriotism.  Prominent intellectuals like George Kateb or Martha Nussbaum esssentially deride the notion, the former in the name of Thoreauvian individualism, the latter evoking instead a commitment to a cosmopolitan identity as basically a citizen of the world.  And the most prominent public purveyors of patriotism are often "nationalists" committed to dubious notions of Making America Great Again or America First (or simply shouting out "USA, USA" at the Olympics; it is clear that Smith, altogether properly does not want to be associated with the latter, even as he is critical of the former.  

        I am interested in the book not only because I know Smith personally and respect him as a serious thinker (who, among other things, taught my daughter many years ago at Yale).  It's also the case that I have long been interested in the phenomenon of patriotism as an academic;  perhaps even more to the point, perhaps as a child of the 1960s, I often wonder exactly what that means in my own life.  Many years ago, when Steve Macedo reviewed my first book, Constitutional Faith, in the New Republic, he referred to me as a "patriot" even though (or perhaps because?) I was quite critical of the Madisonian tradition of constitutional  "veneration."  I preferred to cast my lot with Thomas Jefferson and Woodrow Wilson as vigorous critics of any such veneration.  What Macedo presumably recognized, though, was that I was indeed concerned with the future (as well as the past) of our country and believed that it was necessary to adopt a more Jeffersonian spirit of critique in order to serve our great national ends enunciated, for example, in the Preamble to the Constitution itself, or in the Declaration of Independence.  Moreover, I concluded that book by writing of my visit to the Bicentennial Exhibit in Philadelphia in 1987, where everyone was given the opportunity to "sign the Constitution" and, presumably, reaffirm one's identity as a loyal American defined by accepting its particular importance in structuring not only American government, but also American identity.

        Longtime readers of Balkinization are well aware that I no long exhibit the "constitutional faith" that was perhaps present in 1987.  My 2006 book, Our Undemocratic Constitution began with a chapter explaining why I did not sign the Constitution when given an opportunity to do during a visit at the opening on July 3, 2003 of the National Constitution Center (for which I had been a member of an academic advisory board). That visit concluded by entering "Signers' Hall," featuring life-size statues of all of the delegates to the 1787 Convention and an invitation to reaffirm one's membership in the American community by joining them, as it were, as signatories.  A 2011 second edition of Constitutional Faith explained at greater length why I had lost any such faith.  The answer is that I came, between 1987 and 2003, to view the "hard-wired" institutions and procedures set up in 1787, and barely amended thereafter, as having become impediments to realizing the aspirations nobly set out in the Preamble.  Since, then, I have come to view them increasingly as a clear-and-present danger to our survival as a constitutional democracy.  I increasingly have little patience for those who offer any kind of unreflective praise of the Constitution.  

        So, frankly, I don't know exactly how I should read Smith's encomia to the Constitution.  He writes, for example, "Our legal code based on the Constitution has been elaborated over the course of our national existence by our most prominent lawyers, judges, and legislators.  Americans can justly take pride that their legal system has survived intact for well over two centuries and today may yet stand as a bulwark against a resurgent populism" (p. 192).  Earlier he writes that "[m]any Americans, if asked will say they take pride in their Constitution and their constitutional tradition.  This pride in a text or a textual tradition forms the core of American patriotism."  To be sure, we can argue about the meaning of the Constitution, "and the argument--our self-questioning character--is a core aspect of American patriotism.  This is what makes ours a uniquely enlightened patriotism.  This is the true meaning of American exceptionalism" (p. 149).  

        I confess that I don't see myself within this universe of American patriots and would encourage others to leave such a universe.  I most certainly do not believe that our "legal system has survived intact for well over two centuries."  Like Bruce Ackerman, Smith's colleague at Yale, I think this is a dangerous misreading of the actualities of our constitutional history, which has the ideological function--and often the purpose--of blinding Americans to the all-important history of significant change, some of its produced by "populist" movements like Abolitionism and the Civil Rights Movement.  As I argued in Framed:  America's 51 Constitutions and the Crisis of Governance, I am increasingly less interested in the kinds of debates about constitutional "meaning" that obsess the legal academy and more interested--or even obsessed--by the (un)wisdom of a variety of aspects of the Constitution that present no real challenges of "interpretation," including, for starters, the allocation of equal voting power in the Senate or the sheer difficulty of amending the Constitution through Article V (and I assure you they are only starters).  

        So do I count as a "patriot" in Smith's universe?  Perhaps yes, inasmuch as both of us identify in profound ways as "Americans" and not really as a deracinated "citizen of the world," with equal "concern and respect" for anyone and everyone living anywhere and everywhere.  But no, if one is to take truly seriously commitment to the United States Constitution, either in its 1787 form or even as amended--though not enough--in 2021, as a necessary condition of patriotism.  

        So one problem I have with Smith's argument--much praised by David Brooks in a column in the New York Times--is what I find an insufficiently elaborated notion of what exactly he means by the Constitution and, therefore, the importance of being committed to it.  But I have yet another important reservation:  The central exemplar of enlightened American patriotism, for Smith, is Abraham Lincoln.  "No one," we are told, "has captured the meaning of enlightened patriotism more beautifully than Abraham Lincoln, who gave American constitutional democracy its highest and most articulate expression.  In his speeches and writings, Lincoln put forward a vision of American identity that brings out the principal basis of patriotism" (p. 150).  

        Here, too, I can be said to share Smith's focus, perhaps even obsession, with Lincoln.  This year I will teach "reading courses" at the University of Texas and Harvard Law Schools on Lincoln and Frederick Douglass.  (Last year, I taught such a course at Harvard on Lincoln alone.)  I certainly agree that no one professing to understand America can avoid grappling with our 16th President.  But, frankly, I discern a far more complex, more troublesome Abraham Lincoln than Smith appears to find, at least in this volume. Mario Cuomo famously said that politicians campaign in poetry but govern in prose.  It is not a coincidence that most evocations of Lincoln's greatness involve what might be described as his "poetic" efforts, including, for example, the Gettysburg Address and, even more certainly, the Second Inaugural Address.  It is specialists who tend to concentrate instead of his actual decisions as a practicing politician, whether candidate for higher office or as President of the United States. 

         So consider in this context Frederick Douglass's great speech delivered on "the Occasion of the Unveiling of the Freedmen's Monument in Memory of Abraham Lincoln" on April 14, 1876, the eleventh anniversary of his assassination. As one would expect, Douglass offered praise of Lincoln.  But then we read the following:

        It must be admitted, truth compels me to admit, even here in the presence of the monument we                 have erected to his memory, Abraham Lincoln was not, in the fullest sense of the world, either our         man or our model.  In his interests, in his associations, in his habits of thought, and in his                         prejudices, he was a white man.  He was preeminently the white man's president, entirely devoted            to the welfare of white men.  

Another Yale colleague of Smith's, David Blight, begins his great biography of Douglass by quoting and discussing this speech.  

        Was Douglass correct?  And if he was, does this cast light, for example, on the increasingly bitter controversy over the "1619 Project" and the attempts to answer it not only by Donald Trump's "1776 Report," which similarly valorizes Lincoln (and even selected aspects of Douglass), but also by far more temperate historians like Princeton's Sean Wilentz?  Is it true that any American patriot must recognize the extent to which white supremacy infects almost every aspect of our national history, including the thoughts and actions of even our greatest figures within what is accurately called "American civil religion"?  To be sure, not every "white supremacist" supports the Ku Klux Klan, and Douglass recognizes Lincoln's sincere hatred of slavery and his willingness to refer to Douglass in public as his "friend."  That is surely important.  Lincoln could have been far worse, perhaps someone like the man he chose to be Vice President, Andrew Johnson in the belief that this Unionist Democrat would aid his re-election chances in 1864.  But it was also Abraham Lincoln who convened a group of Washington leaders of the Black community and lectured them on the basic unlikelihood, if not impossibility, that Blacks and white could really live together amicably in one community; this was the basis of Lincoln's warm support of colonization as the "answer" to this quintessential American problem,  At that meeting he particularly encouraged them to move to Panama, though, no doubt, he would also have been happy with emigration to Mexico, Haiti, Canada, or Liberia.  

        One need not support the removal of the monument that Douglass so eloquently dedicated in order to recognize that Abraham Lincoln, like the author of the Declaration of Independence Thomas Jefferson, or each and every one of our national heroes, is radically imperfect, and not only because "to err is human."  Theirs was what might be called a "structured imperfection," inasmuch as success within American politics has always required presentation, whether overt or tacit, of being "the white man's president."  Today, perhaps except for Donald Trump, few would describe them as devoted "entirely" to the interests of whites.  But let us not kid ourselves.  Barack Obama, for whatever complex set of reasons, certainly did very little to teach his fellow Americans about the actual history of white supremacy and the concomitant duty to adopt political programs to try to alleviate it.  Quite likely, he would have been perceived as "an angry Black man" and denied the office to which he aspired.  And, of course, as with Lincoln, one can easily point to many good things he did as President.  But to stop there, to take refuge that no one is perfect (including the author of this post or anyone reading it) is ultimately to dodge the kinds of conversations we must have--and actions following from those conversations--if we are, I am tempted to say, "genuine patriots" committed to the vision of an egalitarian America that Smith, to his credit, embraces.  

        

Posted 7:20 PM by Sandy Levinson [link]

“Plain Dumb Luck” and the War Power: A Story of Nuclear Roulette and Its Lessons

Guest Blogger

For the Symposium on Martin J. Sherwin, Gambling with Armageddon: Nuclear Roulette from Hiroshima to the Cuban Missile Crisis (Knopf, 2020).

Martin Sherwin’s Gambling with Armageddon is a gripping, nail-biting account of the Cuban Missile Crisis, and so much more.  It would be hard to overstate how quickly the book grabs your attention and provides a frightening account of how close the world came to nuclear obliteration in October 1962.  But, if it is even possible, the book’s larger account of what the author calls “nuclear roulette” is even more frightening.

Those of us who teach and write about the separation of powers in the context of war spill barrels of ink debating such questions as whether Congress has given away too much of its authority to the executive; whether the courts have correctly stayed their hands with respect to a host of questions surrounding war prosecution, including enforcement of the War Powers Resolution; and more recently, whether Congress needs to bring up to date its Authorization for Use of Military Force to address new enemies and new fronts in the war on terrorism.  Sherwin’s book suggests that in the nuclear context, such debates may be, if my colleagues in this symposium will forgive me, largely “academic.”  Indeed, as Sherwin’s work lays bare, we have built a nuclear infrastructure that can bring us to the brink of destruction based on a handful of miscues and/or failures of diplomacy, and from which we may only be saved by sheer luck and the good judgment of a single individual who happens to be in the right place at the right time.

That, in any event, is one of the key points that Sherwin makes in the book.  In his words, the Cuban Missile Crisis “was the ultimate reality check: Nuclear threats could lead to conflicts regardless of intentions.”  Quoting political scientist Scott Sagan, Sherwin goes further to suggest that the crisis revealed the all-too real potential for “‘accidental nuclear war.’”  To make his point, Sherwin sets forth in detail here the miscues and misunderstandings that caused the standoff between Kennedy and Krushchev to escalate to the brink.  Continuing, he walks the reader through how, in the end, despite the desire of those leaders to “untie the knot” and reach a diplomatic resolution (to borrow from Krushchev’s language in a letter to Kennedy), it all came down to the sound judgment of a young Soviet naval officer who happened by chance to be on a particular Soviet B-59 submarine approaching the waters off of Cuba.  In recounting the events of the standoff, Sherwin tells us that he began a skeptic but emerged in agreement with Dean Acheson’s earlier account of the crisis, concluding that the world was saved only because of “plain dumb luck.”  

Now in this contribution, I do not want to spoil a good story, and Sherwin is a master storyteller.  Thus, I will refer the reader to his book so that he can walk you through how the tale unfolds.  What I can say is that it is hard to emerge from reading Sherwin’s account of the crisis and his explication more generally of the proliferation of nuclear weapons of war without coming to the belief that the notion of stockpiling the same as a “deterrent” to war (so-called “nuclear diplomacy”) is madness. 

This is, to be sure, the main contribution of the book, and it is a deeply important one at that.  

All the same, I wish here to draw out another one of the book’s contributions.  Gambling with Armageddon underscores that as much as we may wish to theorize as to how the separation of powers were designed to work and/or how they should work, when it comes to nuclear standoffs, none of that matters nearly as much as the character and judgment of the relevant actors in the equation.  This lesson, moreover, applies not only to high-level political actors, but extends all the way down the line to the naval officer far from home tasked with making a split second decision about whether to unleash a weapon with the potential for catastrophic consequences.

In this respect, Sherwin adds to a body of literature in the war context that has made this point before.  But given the context in which he is writing and the narrative he weaves, the point extends much further than prior accounts.  To flesh out what I mean, consider a counterfactual.  (As Sherwin notes here, he loves counterfactuals.  So do I.)  What if it had not been President Lincoln at the helm in 1861 charged with maintaining the Union?  And what if it had not been Lincoln at the helm in 1863?  Would another president have issued the Emancipation Proclamation and begun then and there to address the stain on our nation’s constitutional and moral fabric that slavery wrought?  As the Supreme Court wrote in the immediate wake of the war in Ex Parte Milligan, “[w]icked men, ambitious of power, with hatred of liberty and contempt of law, may fill the place once occupied by Washington and Lincoln; and if this right is conceded, and the calamities of war again befall us, the dangers to human liberty are frightful to contemplate. . . .”  Lincoln had been dead but a year and the Court was already ready to put him on Mount Rushmore, while also recognizing his exceptionalness.   

In my own work, I have drawn comparisons between President Roosevelt and Prime Minister Churchill during World War II.  For his part, Roosevelt set in motion the events that led to the mass incarceration during the war of some 120,000 Japanese Americans (over 70,000 of whom were United States citizens), disregarding what he had been told by his closest advisers–namely, that doing so would violate the Constitution.  Roosevelt only reluctantly agreed to closing the camps once he won reelection in 1944 and was tipped off that the government would lose an important Supreme Court case that challenged the legality of the camps, Ex parte Endo.  By contrast, Churchill is most responsible for winding down Britain’s domestic internment program under what was known as Regulation 18B.  Invoking British constitutional tradition, Churchill declared that  “such powers . . . are contrary to the whole spirit of British public life and British history.”  To be sure, there were important differences that may account for the two executives’ contrasting approaches, not the least of which were the ethnic make-up of those detained in each program and the fact that Churchill did not have to stand in a general election during the war.  But the point remains that Churchill took a leadership role in shutting down a wildly popular program, while Roosevelt had to be dragged kicking and screaming to do so (and despite being told repeatedly that the Japanese American incarceration would and did violate the Suspension Clause). 

Here is what Sherwin’s account adds.  It is not just the leaders in the oval office whose character, judgment, and values matter when it comes to waging war.  In an age when the push of a button can unleash massive destruction, it is also the character, judgment, and values of the individual on the front lines who staffs that button that matters.  (Indeed, the story Sherwin tells is one that history has witnessed happen more than once, and underscores the dangers of taking humans out of the equation, as countless viewers, including President Reagan, came to appreciate from watching the movie War Games.)  To borrow from Milligan, we may not always have a Washington or Lincoln, or in the case of the Cuban Missile Crisis, a Captain Vasily Alexandrovich Arkhipov, to save us.  And, if this point “is conceded, and the calamities of war again befall us, the dangers to human liberty [and life as we know it] are frightful to contemplate. . . .”

Amanda L. Tyler is the Shannon Cecil Turner Professor of Law at the University of California, Berkeley School of Law.  You can reach her by e-mail at atyler at berkeley.edu

Posted 9:30 AM by Guest Blogger [link]

Balkinization Symposium on Martin J. Sherwin, Gambling with Armageddon: Nuclear Roulette from Hiroshima to the Cuban Missile Crisis

JB

This week at Balkinization we are hosting a symposium on Martin J. Sherwin's new book, Gambling with Armageddon: Nuclear Roulette from Hiroshima to the Cuban Missile Crisis (Knopf, 2020).

We have assembled a terrific group of commentators, including Amanda Tyler (Berkeley), Sandy Levinson (Texas), Steve Griffin (Tulane), and Jeremi Suri (Texas).

At the conclusion, Martin will respond to the commentators.

Posted 9:00 AM by JB [link]

What is a Tax Cut, Anyway?

Joseph Fishkin

I’m not going to write a whole blog post today about the meritless (from the point of view of precedent and doctrine) yet also highly dangerous (because conservative constitutional politics may turn out to be way more important than current precedent and doctrine) states-rights legal challenge to the American Recovery Plan Act. Lawyers apply the ordinary tools of legal analysis to a lawsuits of this sort at their peril. Read David Super’s great post below for more about the precedents. If the current conservative supermajority in the Supreme Court decides to create a new principle that “if Congress offers states lots of money, it can’t attach too many strings,” then they’ll do that, using nicer words. I want to write instead about an issue deep in the weeds of the controversy, one that I’ve always found interesting and that this suit puts a fine point on. I am not a tax lawyer, just an interested outsider to this field, and I welcome input from those who know more.

The aid to state and local governments in ARPA is there to provide badly needed funds for various pandemic-related purposes and also to cover the overall state budget shortfalls that some states face as a result of the pandemic. (These are highly uneven: some state budgets like Alaska’s are in total free fall, while many other states’ revenues are holding up fine. Localities are mostly in worse shape than states but this lawsuit is about the $200 billion or so that goes to states.) The Act says states can’t take the money and then turn around and use it, “directly or indirectly,” to offset a tax cut. Opponents are now claiming that restriction is illegal, with various off-the-wall-until-maybe-now-who-knows arguments about the 10th Amendment and so on. What the Act actually says, since “tax cut” is more of a political phrase than a legal one, is that if you (a state) take this money, you can’t use it offset a “reduction in the net tax revenue . . . resulting from a change in law” or regulation; the statute gives some examples: “a reduction in rate, a rebate, a deduction, a credit,” or delaying some tax increase that would have gone into effect. Basically, the drafters tried to think of different ways to frame or package a tax cut, and are saying, you can’t use the money for that. Seems straightforward enough.

But this is actually a very odd line to draw. From many perspectives—including most rational ways of thinking about a state’s budget, and also the tools of standard economic analysis—tax policy and spending policy are highly fungible. Anything you can do with one you can do with the other. You can pay people $X to do something (expenditure) or you can give them a tax credit of $X if they do the same thing (taxation).

So in this case, suppose a state has some money. Its leaders believe the best use of that money is to give it back to the people. It could do that with a tax cut, or it could do that with a spending program that consists of writing everyone checks. According to conventional definitions of these words, the tax cut approach reduces “net tax revenue,” whereas the spending program, almost by definition, doesn’t. Of course there are plenty of ways to fuzz this up. You can make a tax cut look and feel more like a spending program if you make it refundable, so that people can literally get checks regardless of taxes paid; those checks look a heck of a lot like a government expenditure. Similarly you can make a spending program look and feel like a tax cut if you style the checks as “rebates”—and especially if you make eligibility and/or amount contingent on prior taxes paid in some manner. It seems from the statutory language quoted above that doing that last thing with ARPA funds might actually turn your expenditure into a tax cut for ARPA purposes and land you in hot water under the law. So… best to avoid writing “rebate” on the checks, I guess? But I mean, come on. The entire phrase “tax expenditure” exists to describe the budgetary and economic equivalence here: when you cut taxes in a targeted way, this is well described as a form of government expenditure.

And yet. Just because two things might be equivalent in budgetary terms, or even in economic terms, doesn’t make them equivalent in all respects. In political terms, many politicians find it highly salient whether a fiscal policy is styled as an expenditure or a tax cut. Read more »
Posted 3:21 PM by Joseph Fishkin [link]

Strange and Dangerous Attacks on the Recovery Plan’s Condition on State Tax Cuts

David Super

                Quite remarkably, some Republican state officials are attacking the constitutionality of the new section 602(c)(2)(A) of the Social Security Act added by section 9901 of the recently-enacted American Recovery Plan Act (ARPA).  This provision reduces federal fiscal aid to states by the amount of any state tax cuts.  Congress included the ARPA provision at a time when several Republican governors were advocating dramatic tax cuts despite the economic weakness caused by the pandemic. 

The assertion that this condition is unconstitutional is remarkable in at least two ways.  First, it is utterly without foundation on even the most aggressive reading of the Constitution and the Supreme Court’s precedents. 

And second, this theory’s implications, far from being an advance of states’ rights, are utterly devastating for the autonomy and independence of states.  Those making this claim therefore are privileging the sugar-high of tax cuts over principles of federalism that the Republican Party once insisted were sacrosanct.  When combined with widespread Republican acceptance of the Trump Administration’s flippant federalism, this suggests that we are entering an era when neither of the country’s two major political parties have any deep commitment to protecting the prerogatives of the states.  That shift could transform the structure of this country’s governance. 

On the merits, the challenge to the ARPA condition is absurd.  Nothing in the Constitution limits the federal government’s ability to transfer funds to the states to promote the general welfare, and nothing prohibits it from imposing conditions on receipt of those funds.  The federal government has been making conditional grants to the states for a very long time.  For a textualist or an originalist, that ought to be enough to dismiss this claim out of hand. 

Caselaw provides no support for this claim, either.  The Supreme Court has recognized limits to Congress’s authority to command state or local governments to carry out a federal agenda against their will.  But ARPA does not command anything:  it merely attaches a condition to money being offered to states. 

And the ARPA tax-cut provision falls well within the range of what the Court has accepted as funding conditions.  The post-New Deal Supreme Court brushed aside challenges to Congress’s ability to make conditional grants to states, ushering in the modern era of cooperative federalism.  It also upheld congressional efforts to influence state tax policy, approving sections of the Social Security Act that effectively increase a federal tax on employers whose states do not assess them a state tax to support unemployment compensation benefits. 

Numerous social welfare, transportation, environmental, law enforcement, and other programs have operated on the basis of conditional federal grants.  Quoting Chief Justice Burger, Chief Justice Rehnquist noted that incident to its spending power, “Congress may attach conditions on the receipt of federal funds, and has repeatedly employed the power ‘to further broad policy objectives by conditioning receipt of federal moneys upon compliance by the recipient with federal statutory and administrative directives.’"  He also reiterated a pre-New Deal holding that “the power of Congress to authorize expenditure of public moneys for public purposes is not limited by the direct grants of legislative power found in the Constitution. Thus, objectives not thought to be within Article I's enumerated legislative fields, may nevertheless be attained through the use of the spending power and the conditional grant of federal funds.”

More recently, the Court has recognized three limitations on Congress’s ability to condition funding to states.  None of these limitations, however, comes anywhere near causing a problem for the ARPA provision.  First, the Court has held that conditions must be open and obvious so that states know to what they are committing when they accept the funds.  The tax-cut condition appears explicitly on the face of ARPA:  the fact that it has become controversial days after enactment, long before any state submitted the certifications required to receive Fiscal Recovery Funds, demonstrates how open and obvious the condition is. 

Second, the Court has held that conditions on funding must be reasonably related to the purpose of the funding.  Congress probably could not condition Medicaid funding on a state changing its state bird.  In an opinion by Chief Justice Rehnquist, however, the Court upheld conditioning federal highway funding on adoption of a 21-year-old drinking age.  The Court found that Congress was reasonable in its belief that allowing younger persons to purchase and possess alcohol could increase drunk-driving deaths.  The Court brushed aside the state’s argument that controlling the sale of liquor was a core state power secured by the Twenty-First Amendment, noting that Congress had not denied the state that power but merely reduced its support for highways that it believed would be more dangerous as a result of a particular choice.  The ARPA condition has an even closer substantive relationship to the funding provided than does the drinking age that the Court upheld:  it constrains how the very funds being provided are spent.

Finally, in the Court’s first case on the Affordable Care Act (NFIB v. Sebelius), it held that Congress could not suddenly increase the conditions on federal Medicaid funding by requiring states to expand eligibility to large populations that the program previously had not served.  The problem, Chief Justice Roberts wrote, was that states had become so dependent on Medicaid funding that opting out was no longer a plausible option for them.  With states in this position, Congress effectively put “a gun to the head” of any state wanting to deny Medicaid to non-elderly adults without a disability or pregnancy.  With no other federal program providing remotely as much money to states, the “gun-to-the-head” standard may not apply outside of the Medicaid context.  But it certainly does not apply to money that states have no legal right to receive and in fact have not been receiving. 

This is where the Republican officials’ argument becomes so remarkable.  To invoke the NFIB principle, they essentially must argue that denying states fiscal relief in this crisis is pointing a gun to the states’ heads.  The Court found the ACA’s Medicaid expansion condition coercive only because it found that states had become so dependent on Medicaid funding that they had developed an implicit right to have it continue.  ARPA’s fiscal relief is not continuing funding at all:  states received some fiscal relief under last year’s CARES Act, but congressional Republicans and President Trump steadfastly opposed providing any more, reportedly sinking potential bipartisan agreements on further coronavirus relief measures because they so adamantly opposed Democrats’ insistence on more fiscal relief.  Had the Democrats not won the two Georgia senatorial run-offs, states almost certainly would not be receiving any further fiscal relief, conditional or otherwise.  To say that states were so dependent on this money that it cannot legitimately be conditioned is quite detached from its recent history. 

These attacks also posit a model of federal-state relations radically at odds with the states’ rights position Republicans have taken for the past half-century.  The model Republican attorneys general seem to advocate is one under which states reduce their own revenue-raising and rely on federal funds instead.  This is hardly consistent with states as fully equal sovereigns.  And this hardly seems a model that the Supreme Court’s conservative majority would want to embrace. 

Even an obsessive focus on state tax cuts funded by state program cuts leaves more and more problems unaddressed, eventually leading to greater federal involvement.  But insisting that states have a constitutional right to unconditional federal fiscal assistance to fund state tax cuts is very difficult to square with any coherent conception of federalism and would leave states increasingly as spending agents for the federal government.  That leading Republicans are making this argument suggests that their party is ceasing to be a consistent defender of states’ role in our system in favor of a relentless pursuit of tax cuts (and other its other substantive priorities). 

Although the Democrats did steadfastly press for state fiscal relief, I do not see that party taking up the states’ banner on any consistent basis, either.  In a political environment where loyalties to parties are far stronger than those to particular institutions of government, having neither major party deeply committed to states’ vitality could result in a lasting weakening of their position in our system.  Whether or not one believes the states’ traditional roles should be maintained, that is a big change. 

@DavidASuper1

Posted 5:28 PM by David Super [link]

Following Up on a Prior Post

Gerard N. Magliocca

The University of Kansas announced today that its University Press will not be shut down. The Press will instead proceed under new leadership and make various changes to its business model. Thanks to all of you who spoke out in favor of the Press. 

Posted 2:14 PM by Gerard N. Magliocca [link]

Recommended Listening: Amarica's Constitution Podcast

Jason Mazzone

In connection with his highly anticipated new book, The Words That Made Us: America's Constitutional Conversations, 1760-1840 (the first volume in a trilogy), Akhil Amar has started a fantastic podcast called "Amarica's Constitution." The most recent episode is on the constitutional misadventures of John Adams. All the details at akhilamar.com.  

Posted 11:52 AM by Jason Mazzone [link]

Robert Jackson and the Non-Delegation Doctrine

Gerard N. Magliocca

I am working on a draft paper called "Robert Jackson's Non-Delegation Doctrine." The paper argues that Jackson thought that there was a non-delegation doctrine that applied to only congressional delegations to the President himself (as opposed to executive agencies and independent boards). I based this conclusion on two sources. First, a brief that Jackson wrote as Solicitor General in Currin v. Wallace (a 1939 case) in which he made this argument in a comprehensive fashion. Second, Jackson's concurrence in Youngstown, in which he said that Category One cases were subject to non-delegation limits, if you read the language carefully and consider what he says in Footnote Two of that opinion.

Now I have a third piece of evidence--Jackson's draft of the Youngstown concurrence. Adam White, who wrote an excellent article back in 2006 about Jackson's drafts of the opinion, was kind enough to send me a scan of the early drafts. (He gets more than a hat-tip from me--more like a bow.). Here is what Jackson said in an early draft about what became Category One (I've underlined the relevant part):

"Where the President acts in accord with an express enactment or policy of Congress, he can invoke for its support the sum of his own powers plus the sum of congressional powers at their maximum. Even so, it may be found unconstitutional. See Railroad Retirement Board v. Alton R. Co., 295 U.S. 330; Panama Refining Co. v. Ryan, 293 U.S. 389; Carter v. Carter Coal Co., 239; United States v. Butler, 297 U.S. 1; Schechter Poultry Co. v. United States, 295 U.S. 495.

The inclusion of Panama Refining is especially telling here because (unlike the other cases) that holding was only about the non-delegation doctrine. Jackson emphasized in his Currin brief, though, that the case involved a delegation to the President himself (under the National Industrial Recovery Act) rather than to an agency or some other official.

Later, Jackson reformulated this section and dropped the cites to these anti-New Deal cases. In Footnote Two of the opinion, which relates to Category One cases, he instead concentrated on other examples such as Curtiss-Wright and a fascinating opinion by Augustus Hand in the Second Circuit. Still, he made clear that the President could exercise only "all that Congress may delegate" and that there were "strict limits" on Congress's ability to delegate power over domestic affairs to the President himself.

Anyway, I hope to have this draft ready for circulation by the end of the month. 

Posted 10:03 AM by Gerard N. Magliocca [link] (0) comments

Joe Manchin, Hollywood Western hero

Andrew Koppelman

Sen. Joe Manchin (D-W.Va.) has the opportunity to become a Hollywood Western hero. He says he will “never” vote to abolish the filibuster. But with voting rights at stake, the nation may soon contemplate an episode reminiscent of the 1962 John Ford Western “The Man Who Shot Liberty Valance.”

I explain in a new piece at The Hill, here.

Posted 8:40 AM by Andrew Koppelman [link]

Living Originalism at the University of Saskatchewan

JB

Last month I gave a talk hosted by the Runnymede Society's University of Saskatchewan chapter about my theories of constitutional interpretation, and their possible application to Canadian constitutional law. 

Leonid Sirota (Auckland University of Technology) who founded and writes at the Double Aspect blog, offered his commentary.

Posted 9:30 AM by JB [link]

Meet Me in the Middle Podcasts on The Cycles of Constitutional Time and Regulating Social Media

JB

This past month I did two podcasts on Meet Me in the Middle, hosted by Bill Curtis.

The first podcast is on my new book, The Cycles of Constitutional Time and our current problems of constitutional rot.

https://www.curtco.com/mmitm-53-jack-balkin

The second podcast is on social media, and the right way to regulate (and not regulate) them.

https://www.curtco.com/mmitm-54-jack-balkin-returns

Posted 6:00 PM by JB [link]