The Law and Politics of Life and Death: AIDS, COVID, and Abortion

Guest Blogger

For the Balkinization Symposium on Death and Legal Scholarship

Aziza Ahmed

How we gather and mobilize data has consequences for the material distribution of resources, including access to health services. Legal anthropologist Sally Engle Merry names a similar phenomenon in article Measuring the World: Indicators, Human Rights, and Global Governance in which she describes the power of indicators to produce and construct the knowledge that we then use to govern the world. In her beautiful forthcoming article, An Uncountable Casualty: Ruminations on the Social Life of Numbers, Mary Dudziak similarly describes the power of statistics in service of a political projects.

The power of the knowledge/governance effect, the importance of being counted and known, been a central theme in my work on AIDS, COVID, and abortion.

In my forthcoming book,  Feminism’s Medicine: Law, Science, and Social Movements in the AIDS Response, I tell the story of how women in the 1980s and 1990s, invisible to public health researchers, demanded that they be counted among people living and dying with AIDS. Many of these women were Black and Latina, and many from Bedford Women’s Prison in New York. They fought to demand that the CDC alter the definition of AIDS being used at the time (the late 1980s), which did not include gynecological illnesses. If the definition did include gynecological illnesses they would be able to access social security disability benefits which were presumptively given to people then living with AIDS.

Balkinization Symposium on Susan Rose-Ackerman, Democracy and Executive Power-- Collected Posts

JB

Here are the collected posts for our Balkinization symposium on Susan Rose-Ackerman's new book, Democracy and Executive Power: Policymaking Accountability in the US, the UK, Germany, and France (Yale University Press, 2021).

1. Jack Balkin, Introduction to the Symposium

2. Peter Strauss, The Tensions Surrounding Executive Rulemaking in Four Western Democracies

3. Mariana Mota Prado, Can (and should) we take policymaking accountability to the four corners of the earth?

4. Matthias Ruffert, Comparative Administrative Law at its Best

5. Thomas Perroud, Susan Rose-Ackerman’s Democracy and Executive Power: A view from France

6. John Ferejohn, Administrative Democracy?

7. Liz Fisher, Democracy and Executive Power: Imagining Choice in Administrative Law

8. Jeff King, Democratic Oversight in Democracy and Executive Power

9. Susan Rose-Ackerman, Do Administrative Rulemaking Procedures Matter? Response to the Balkinization Symposium on Democracy and Executive Power

Abortion and the Thirteenth Amendment

Andrew Koppelman

In the debate over whether Roe v. Wade should be overruled, a major constitutional issue has been neglected. 

Imagine a world in which women are forced to bear children.  They do not control their reproductive powers.  Their bodies are at the command of others.  Their bodies are mere instruments.  Their lives are seized and put to the service of purposes not their own. 

This isn’t dystopian fiction.  That was the United States before the Civil War, for enslaved people who were female.  We adopted the Thirteenth Amendment to end the institution of antebellum slavery – all of it.  The amendment provides that “Neither slavery nor involuntary servitude . . . shall exist within the United States.”  That has implications for abortion, implications that I’ve been pressing for a long time.

 I explain in my latest column at The Hill, here.

Death and Legal Scholarship: How an Era of Mass Carnage Affects the Substance of Our Work

Guest Blogger

Mary L. Dudziak

Introduction

We are living through an era of mass death. One feature of this historical moment is Covid-19, which in spite of public health efforts, keeps frustrating our desires to confine it within time boundaries. The Covid era emerged alongside the Black Lives Matter movement, which brought broader awareness to Black deaths in police custody. These events have led to a multidimensional and global, though fractured, experience of mass carnage.

That an era of crisis can affect the substance of legal thought has long been evident in works like Edward Corwin’s World War II era classic Total War and the Constitution, and Mark Tushnet’s post-9/11 edited volume The Constitution in Wartime. Writers and scholars across fields have been addressing the impact of our crisis era on ideas. This blog symposium builds upon these efforts. It began as an AALS 2022 Open Source panel on Death and Legal Scholarship: How an Era of Carnage Affects the Substance of Our Work. (A video of the panel will soon be posted on the AALS Conference website.) It is inspired by a project of the journal Diplomatic History which invited nearly two dozen scholars of international and foreign relations history to reflect on the impact of the Covid era on our scholarship. While some took up shifts of focus required when archives closed and travel shut down, for others substantive impacts derived from the social, cultural, and intellectual experience of living in a pandemic. My own contribution reflected on how this era of carnage on U.S. soil might impact the way we think about war-related solidarities along the lines of Drew Gilpin Faust’s history of Civil War death, This Republic of Suffering.

Participants in this blog symposium take up the ways this era of death and suffering matter to legal scholarship. Aziza Ahmed, Professor of Law at the University of California, Irvine School of Law, takes up the importance of the way data about public health crises is collected and mobilized, setting current inequalities in the context of past events, like the AIDS crisis. Catherine Powell, Professor of Law at Fordham Law School, Visiting Scholar at the NYU Law School Center for Human Rights & Global Justice, and Non-Resident Senior Fellow at the NYU Reiss Center on Law and Security, critically analyzes uses of a wartime metaphor for mobilizing efforts to address the pandemic. Brittany Farr, Sharswood Fellow at the University of Pennsylvania School of Law, uses the story of the murder of Emmit Till to explore the power of grief across time and space. In a moving final essay, Linda McClain, the Robert Kent Professor of Law at Boston University School of Law examines the scholarly lenses through which we think about the pandemic. Emphasizing that it is a mass death event, she illuminates its character by turning to one death that was quite personal. The symposium concludes with an Afterword and selected bibliography.

Do Administrative Rulemaking Procedures Matter? Response to the Balkinization Symposium on Democracy and Executive Power

Guest Blogger

For the Balkinization symposium on Susan Rose-Ackerman, Democracy and Executive Power: Policymaking Accountability in the US, the UK, Germany, and France (Yale University Press, 2021). 

Susan Rose-Ackerman

I am very grateful to Jack Balkin and to the seven participants in the symposium on Democracy and Executive Power: Policymaking Accountability in the US, the UK, Germany, and France. The symposium coincides with the book’s publication in London, following its October publication in the US. The aim is to generate an informed debate about the value of public consultation and reason-giving in justifying executive policymaking in representative democracies. In engaging with different dimensions of my work, I hope that the blog posts will encourage administrative law and constitutional scholars in the US and beyond to ask how my arguments might or might not apply both to internal debates in my case study countries and to other legal and political systems as well.

The blog posts engage with the differing executive policymaking processes in my case study countries and provide critical perspectives on my defense of strong public engagement in administrative rulemaking. They assess my arguments in the light of other contemporary scholars, including the work of the bloggers themselves. They direct readers to important work by Margin Cohn, Blake Emerson, Jerry Mashaw, Edward Page, Eberhard Schmidt Aßmann, and Paul Tucker and to Frank Goodnow’s comparative administrative law treatise from 1893.

Fundamental questions engage the participants: Do administrative rulemaking procedures matter to the justifications for executive branch policymaking? Even if they do matter, are they worth the time and trouble needed to implement them in practice? As Peter Strauss aptly remarks, I am seeking a difficult compromise between efficiency, transparency, participation, and accountability—one that cannot satisfy any of these ideals its pure form. My comparative exercise looks across several well-established systems of executive rulemaking to isolate their strengths and weakness and to suggest ways forward.

Better Now Than Later

Gerard N. Magliocca

One thread of commentary in some of the popular writing about Section 3 of the Fourteenth Amendment is that challenging the eligibility of candidates is not a good idea. There might be a political backlash. Or we should just let the voters decide. 

Assessing the political implications of these lawsuits is above my pay grade. But there is a practical consideration that counsels for action now. Take Congressman Louis Gohmert, who faces allegations about his involvement in the insurrection. Gohmert is not running for reelection. He is instead running to be Texas Attorney General. But if Section Three applies to him, then he is ineligible to serve as AG.

Suppose nobody challenges Gohmert's eligibility in the GOP primary. He wins. Then nobody challenges his eligibility in the general election. He wins. Somebody will inevitably challenge his eligibility once he is the Texas Attorney General. A private party that is subject to some action by the Texas AG will attack the action on the merits but also say, in essence, that Gohmert is an imposter. (In other words, that his action is unlawful because he does not lawfully hold his post.) There are different ways of thinking through that issue, which of course came up during Reconstruction, but the point is that it'll be painful and confusing.

An eligibility challenge to a sitting official (especially for an important state executive post) creates many headaches. An eligibility challenge to a candidate, by contrast. avoids many of those problems. 

Democratic Oversight in Democracy and Executive Power

Guest Blogger

For the Balkinization symposium on Susan Rose-Ackerman, Democracy and Executive Power: Policymaking Accountability in the US, the UK, Germany, and France (Yale University Press, 2021). 

Jeff King

Democracy and Executive Power is an elegant and readable book, on a topic that is both important and neglected – accountability for executive rule-making in the modern state. 

I admire and agree with a lot in this book, whose principal conclusions and recommendations are detailed and summarised in the final chapter (esp at pp.266ff).  It affirms the necessity of executive rule-making (or what I will call delegated or secondary legislation) because primary legislation ‘cannot resolve all the important policy issues…’ (p.15).  And it rightly criticises the separation of powers idea as inapt in the modern administrative state . It is also right in identifying that there is a democratic deficit at issue in the process of delegated law-making. The question is what is to be done?

The Supreme Court’s Embarrassing OSHA Decision

Andrew Koppelman

I teach constitutional law. My job is to explain to my students and to the public why courts do what they do. Last week’s Supreme Court’s decision, which blocked Biden’s mandate to protect workers from Covid, puts me in an embarrassing position.  The Court’s opinion is so poorly reasoned that I cannot explain why the Court has decided to endanger millions and kill thousands. 

I explain in a new piece at Smerconish.com, here.

Democracy and Executive Power: Imagining Choice in Administrative Law

Guest Blogger

For the Balkinization symposium on Susan Rose-Ackerman, Democracy and Executive Power: Policymaking Accountability in the US, the UK, Germany, and France (Yale University Press, 2021). 

Liz Fisher

In 2008 the UK Government published a Code of Practice on Consultation (now superseded) for central government departments. On its cover was a picture of one bumble bee hovering above, and three bumble bees on, a flower. The picture has always made me wonder about what the flower and the bees are meant to represent. Is the flower a government department? Or are the bees? The answer depends on what you think the purpose of public participation is. If it is about information collection, then the government is probably the bees. But if you understand that consultation is about nurturing democracy and accountability then it is probably the public which are the bees. 

Underpinning Susan Rose-Ackerman’s important new book, Democracy and Executive Power: Policy Making Accountability in the US, the UK, Germany and France (Yale UP, 2021) is definitely an assumption that government departments are flowers (or at least in terms of the above analysis). She is explicit from the outset about the value of consultation and reason giving in contributing to the ‘democratic legitimacy of discretionary regulatory actions’ (p 4). Saying that might suggest that the book is an argument for a particular vision of administrative government and administrative law. It is not. Rather through a calm, measured, and thoughtful account of administrative law in the four jurisdictions listed in the title she develops ‘some basic principles of public law for democracies everywhere’ (p 12). This serves as the basis for a ‘reform agenda’ that ensures the ‘difficulties of balancing competence, public participation, and government accountability’ (p 266) are put front and centre.

Administrative Democracy?

Guest Blogger

For the Balkinization symposium on Susan Rose-Ackerman, Democracy and Executive Power: Policymaking Accountability in the US, the UK, Germany, and France (Yale University Press, 2021).

John Ferejohn

                Democracy and Executive Power is an important study of the administrative state in advanced democracies.  It usefully contrasts practices in France, Germany and UK – all of which have long and deep experiences with public adminstration --  with those in the United States.  I think the most important contribution is her assessment of the administrative state as an essential locus of democratic deliberation.  She thinks administrative procedures must aim to integrate the exercise of delegated authority with expertise and open ended consultation with varied social interests.  While the other administrative states in her study try to reconcile the exercise of delegated authority with technical expertise, the American regulatory state is more ‘democratic’ or open to external social interests.  Rose Ackerman sees many flaws in the American approach but seems to regard the openness to external voices as something that needs to be expanded, improved, and exported to other democracies.  I am very sympathetic with this project and have defended (elsewhere) the deliberative democratic role of administrative agencies in American democracy.

                I read the book, therefore, as seeking to “democratize” administrative agencies in order to increase their capacity to make rules that are both (technically) good and legitimate (publicly acceptable). I understand the first criterion (good rules) as being in Rose-Ackerman’s terms outcome oriented whereas the legitimacy requirement is presented as a procedural criterion.  I am not convinced that it is possible to make such a clean separation between outcomes and process.  In the book, she see outcome based evaluations as external to the agency: the courts insist that agency rules comply with the the constitution for example.  Presidents have insisted repeatedly that agency rule making process should be checked by cost benefit analysis. And Congress (backed by courts) requires that the authority for agency action be found in congressional statutes (which impose both outcome and process based requirements). Of course agencies make their own internal outcome based evaluations: the FDA evaluates new drugs in terms of safety and effectiveness for example. Still, she wants to argue that outcome based evaluations are insufficient to justify agency rule making and that the use of good procedures form an independent basis of evaluation.

Rose-Ackerman rejects the idea that agencies can be restricted from making rules with the force of law by some resurrection of the delegation doctrine. Such a rehabilitation would impose arbitrary limits on agency powers and would effectively limit the capacity of Congress to make policies it decides are needed. She also rejects the idea that the legitimation of agency actions proceeds only transitively from elections through delegation and political appointment. Such a view seems both over and underinclusive in many ways. Rather she wants to see agencies as having somewhat autonomous legitimacy claims to making legislative-like rules.  Such claims, she thinks, must be grounded either on the quality of outcomes or policies, or on the procedures used by the agencies to make and revise policies.

Susan Rose-Ackerman’s Democracy and Executive Power: A view from France

Guest Blogger

For the Balkinization symposium on Susan Rose-Ackerman, Democracy and Executive Power: Policymaking Accountability in the US, the UK, Germany, and France (Yale University Press, 2021).

Thomas Perroud

 Susan Rose-Ackerman’s journey into  the labyrinth of executive policymaking accountability includes our joint article comparing the French and US cases. Building on our earlier collaboration and her recently published book, I reflect  here on the French case and comment on Susan’s policy recommendations. 

The book should encourage  European scholars to think about the lack of democratic input into the rulemaking process inside the executive. Indeed, the major lesson of the book lies in the gap that separates Europe from the United States as regards participation in rule-making. The line is clear: in the three European countries under study (France, Germany, the UK), mandatory participation arose as a result of EU ]environmental law and a pan-European convention dealing participation in environmental matters (the Aarhus Convention). In other words, there is no administrative law principle equivalent to the notice-and-comment procedure in these countries (or even in the EU for that matter). This is a puzzle that makes one want to understand the reasons for the difference. For France, Susan highlights the fact that our culture very much believes that the administration represents the general interest. The cultural power of the administration in France, imbued with the idea of public service, is extremely strong. It chokes civil society, which is certainly not as well entrenched as it is in the US.

The Perils of Performative Politics

David Super

      We just saw the entirely predictable failure of progressives’ plan to end the filibuster and enact voting rights legislation.  Senators Manchin and Sinema have been saying for years that they opposed eliminating the filibuster and had given quite specific reasons for those views.  When forced to vote their convictions, they did so.  Nothing at all surprising there.

     The question is why we went through this performance.  Why did so many progressives insist on acting this scenario out when the path forward was so completely pre-ordained?

     At times, we have heard that it was necessary for “the Democrats” to “fight” for voting rights and other reforms blocked by the filibuster.  This argument rests on at least two highly dubious assumptions.  “The Democrats” not an ideological monolith.  Former President Trump and other forces have been rapidly pushing the Republican Party into rigid conformity, but a party seeking to unite all those opposed to Trumpism – and which still garnered just 51% of the popular vote for its candidate – will inevitably encompass a wide range of views.  At most, the call to “fight” could be read as a demand directed at the Senate Democratic leadership (and President Biden). 

     The “fight” rationale also assumes that it is only a “fight” when it involves debating and voting on the Senate floor.  Yet that is not how most politics is done; indeed, politicians typically put on a noisy show when they cannot find a path to success.  Real fighting, effectual fighting, is done in quiet conversations, in measured tones, away from the glare of publicity.  No initiative in which I have been involved has ever benefited from a floor debate; on the other hand, several promising initiatives failed when well-meaning supporters could not resist grandstanding on the Senate floor and in so doing mobilized the opposition. 

     An alternative rationale for this public exercise was that somehow it might persuade someone.  It is not entirely clear whom it was that proponents hoped to persuade:  Republican senators, the two Democratic hold-outs, voters, or someone else.  Whomever the intended audience, this was terribly naïve.  Many Members of Congress, to be sure, have quite tepid convictions on many issues.  They have learned, however, to stick to a position once taken rather than risk being portrayed as a “flip-flopper.”  And these issues are much too nuanced to have any prospect of persuading significant numbers of voters:  few voters follow these proceedings closely, fewer still are genuinely open to persuasion, and virtually none will know enough about the issues to see through the plausible-sounding arguments of the legislation’s opponents. 

     And even if none of that were true, proponents made no serious effort to persuade.  For the most part, those demanding abolition of the filibuster refused to take seriously the arguments that Senators Manchin and Sinema made for their position.  Those senators and others opposed to unilateral rules changes because the filibuster preserves major civil rights, environmental, and social legislation during periods of Republican dominance.  Filibuster opponents insisted that Republicans would surely sweep away the legislative filibuster without explaining why they did not do so in 2017-18, when it would have allowed them to repeal and replace the Affordable Care Act.  (Although the Republicans failed to get fifty votes for their repeal, without the constraints of the filibuster and reconciliation rules they surely could have included provisions to buy off at least one of their defectors.)  Eliminating the filibuster would have allowed Republicans to omit many deeply unpopular provisions from the 2017 tax law, possibly saving their House majority.  Any serious argument that the legislative filibuster is inevitably doomed needs to explain why Republicans were willing to accept major legislative defeats rather than abolish it.  Yet those blasting Senators Manchin and Sinema merely assumed, without evidence or argument, that the two senators were wrong or even foolish. 

     Proponents of abolishing the filibuster also repeatedly insisted that its primary function has been to squash civil rights legislation.  That is simply wrong.  Yes, many of the performative filibusters over the years have been in opposition to civil rights legislation.  But the filibuster’s availability also is what blocked numerous attempts to gut environmental legislation from even reaching the Senate floor during the Republican monopoly on power of 2017-18.  It is what forced President Trump to meet with Minority Leaders Schumer and Pelosi to make major concessions on appropriations bills.  It is what stopped President Trump from proposing and passing an “infrastructure” bill that would sell off the nation’s assets to his cronies at fire-sale prices.  If proponents were serious about persuasion, they would not have relied on such readily rebutted oversimplifications. 

     Yet another rationale for demanding the public performance of the past week was to force resistant senators to “put themselves on record” against this legislation.  That it did, but to what end?  Senators Manchin and Sinema had already said, with admirable clarity, that they would not support eliminating the filibuster.  They were absolutely on the record, a far cry from some slippery “swing” senators of earlier eras.  Republicans, too, were open and adamant in their opposition to this legislation. 

     One could imagine a quite different outing strategy targeted on purported moderate Republicans:  having moderate Democrats publicly invite them to negotiate bipartisan voting rights legislation and shaming them if they refuse.  This strategy has worked in the past when deftly pursued; whether today’s politics has room for that sort of subtlety is unclear.  In any event, the Republican senator most vulnerable to this approach, Sen. Susan Collins, was just re-elected.

     My suspicion is that the real reason progressive groups’ leaders pressed so hard for a public performance of positions already well-known was that they did not want to be the ones to tell their constituencies that they fervently desired, and amply justified, legislation was not going to pass.  If this is correct, it is unfortunate on many levels. 

      First, it suggests a level of estrangement between progressive leaders and the progressive base that will severely undermine the movements’ prospects of success.  Grassroots progressives are right to be suspicious of politicians’ shifting loyalties, but if they cannot communicate frankly with their own leaders, misdirected efforts and debilitating disappointment become inevitable.

     Second, and related, to maintain popular engagement with these performances, politicians and national policy advocates almost inevitably must mislead grassroots activists.  Nobody floods the Capitol switchboard with calls on an issue they understand to be dead.  Urging activists to respond on legislation that is soon shown to have already been doomed reduces the likelihood of a grassroots response when an issue really is winnable. 

     Third, this sort of public performance imposes a much more absolute finality.  The threat of forcing a public showdown can provide a bit of negotiating leverage even when the outcome of that showdown is pre-ordained.  Now that fifty-two senators have had to publicly declare themselves, they have much less to gain from even talking about any compromise.  Bipartisan voting rights legislation in this environment surely would be thin gruel indeed, but it would be more than we have any chance of getting in the foreseeable future.  Now nothing can happen this Congress, and any appeals to Republican consciences in future Congresses will have to be as different as possible from the just-defeated legislation for Republicans to be confident they will not be accused of flip-flopping. 

     More broadly, all the invective spewed against Senators Manchin and Sinema likely will make them less inclined to compromise on other important progressive priorities, such as the Build Back Better environmental and human services legislation.  It is conceivable that insisting on this week’s futile exercise doomed universal child care and pre-K subsidies, the expanded Child Tax Credit, and the many smart environmental programs that Build Back Better contains.  At a minimum, the ultimate deal on Build Back Better is now likely to be significantly worse even than what would have been available in December.

     Fourth, having gone through this exercise could leave us in the worst of all possible worlds:  it failed to dislodge the filibuster to pass today’s legislative priorities but, by forcing forty-eight Democrats to vote to gut the filibuster, it destroys their credibility in arguing for preserving the filibuster once Republicans take over.  Ironically, if the filibuster survives to give Democrats a seat at the table on appropriations, and to prevent wholesale repeal of progressive legislation, the two people progressives will have to thank are Senators Joe Manchin and Kyrsten Sinema. 

     Finally, performative exercises of this kind make President Biden and the Democratic leadership look weak and ineffectual.  The President’s credibility is a precious asset with immense value to all progressives.  Unfortunately, this is a political Tragedy of the Commons:  many progressive groups want to bludgeon the Democratic leadership to do more on their priorities, but if all groups do so the result is that all progressive priorities starve.  Once lost, a president’s credibility is extremely difficult to rebuild.  And persuading swing voters that they must turn to Republicans for strong leadership has never been more dangerous.  All the more so, of course, now that we have undermined our ability to preserve the filibuster. 

     @DavidASuper1

Comparative Administrative Law at its Best

Guest Blogger

For the Balkinization symposium on Susan Rose-Ackerman, Democracy and Executive Power: Policymaking Accountability in the US, the UK, Germany, and France (Yale University Press, 2021).

Matthias Ruffert

What is our aim in writing books on comparative administrative law? “Democracy and Executive Power” is what administrative law, or the major part of it, is all about, so it is the comparative method applied by Susan Rose-Ackerman that makes the difference to most (or almost all) other presentations bearing a similar title. Probably, we can think of three targets of comparative research in administrative law. The first, nearest to what comparatists do in private law, is less pertinent in the book discussed here: The creation of uniform or at least harmonized principles and rules for a newly created jurisdiction. European administrative lawyers often adopt that approach when elaborating on how EU administrative law shall be designed and applied. In a book comparing the US with the UK, France and Germany, this level of analysis must obviously be missing. Second, a comparative study can bring the discussions of one’s own administrative law and the scholarly debates around it to scholars from other jurisdictions. Third, it can make the stakeholders in one’s own jurisdiction think about alternatives, new principles or just creative scholarly approaches.

The aim of Susan Rose-Ackerman’s book is somewhere in between the two. Readers from the three European jurisdictions (or elsewhere) get helpful and deep insights into the state-of-the-art in US administrative law and are enabled to cross-check their views with what is pertinent at the other side of the Atlantic. Such explanation can be de-mystifying in eliminating misperceptions of what the American situation might be. However, as I tend to submit with some reluctance, but nevertheless with certain conviction, such use of comparative law rarely if ever is able to influence the substantive debate elsewhere. This statement points at aim number three: Writing about other jurisdictions to show what could be improved in general, or in your own. This is what makes the book so important for American readers. In this context, it is interesting to see that Rose-Ackerman’s endeavour is mirrored by a German project, similarly by a leading administrative law scholar, roughly (not exactly) of the same generation, Eberhard Schmidt Aßmann (Das Verwaltungsrecht der Vereinigten Staaten von Amerika, 2021).

Debating abortion rights

Andrew Koppelman

On Feb. 1 at 8 pm Eastern, I will participate in an online Federalist Society debate on overturning Roe v. Wade.  (Spoiler: I think it should remain the law.)  The link is here.

Can (and should) we take policymaking accountability to the four corners of the earth?

Guest Blogger

For the Balkinization symposium on Susan Rose-Ackerman, Democracy and Executive Power: Policymaking Accountability in the US, the UK, Germany, and France (Yale University Press, 2021).

Mariana Mota Prado 

In Democracy and Executive Power, Susan Rose-Ackerman provides a detailed analysis of delegation of rulemaking powers to executive officials. While it is not possible for legislatures to oversee all the complexities of the mammoth state apparatus that governs our societies today, she argues that the lack of accountability of these policymaking processes within the executive branch is an issue that needs to be addressed. Rose-Ackerman analyzes four countries (France, Germany, US, and UK) to ask what institutional arrangements secure (or could secure) an accountable process of administrative rulemaking. The careful selection not only reflect some of the countries that Rose-Ackerman has been studying for decades, but it also serves a very important methodological purpose: it allows for a comparison of two types of political systems, parliamentary (UK and Germany) and presidential (US and France); and of two types of legal systems, common law (UK and US) and civil law (Germany and France).

Based on this comparative analysis of executive rulemaking, she makes a positive (descriptive) and a normative claim. The positive claim is a political economy story: parliamentary systems lack the incentives that exist in presidential systems for legislatures to keep the executive in check. The normative claim is that the political dimensions of executive rulemaking need to be accountable. Yet, executive rulemaking is not purely political: these processes also involve and often require expertise. For this reason, Rose-Ackerman pushes for “more constructive forms of political accountability that also recognize the importance of technocratic analysis” (p. 146). Her proposal points to transparency, public consultation and reason giving as the three pillars that can address the democratic deficit in executive rulemaking in many countries today.

Despite being centered around these four countries, Rose-Ackerman’s claim is broader in scope, as she announces in the introduction: “the difficulties that have arisen in my case-study countries are repeated throughout the world and can provide insights that may be applicable elsewhere” (p. 9). In line with this ambition, in the concluding chapter (Chapter 8) she discusses how the book’s “perspective is relevant elsewhere, especially to countries making a transition to democracy and to middle-income countries whose governments are seeking a stronger system of public law.” (p. 244). This blogpost engages with this broader ambition, both to commend the book’s careful and constructive analysis in this regard, but also to pinpoint a few issues that seem to merit further attention.

Balkinization Symposium on Linda Colley, The Gun, the Ship, and the Pen -- Collected Posts

JB

Here are the collected posts for our Balkinization symposium on Linda Colley's new book, The Gun, the Ship, and the Pen: Warfare, Constitutions, and the Making of the Modern World (Liveright, 2021).

1. Jack Balkin, Introduction to the Symposium.

2. Erin F. Delaney, Of Constitutions and Constitutionalism.

3. Gerard Magliocca, The Gun is as Mighty as the Pen.

4. Sandy Levinson: An Essential Book: Linda Colley,on the origins of written constitutionalism.

5. Madhav Khlosla, Locating Constitutions in the Modern World. 

6. Harshan Kumarasingham, Constitutional History and the Making of the Modern World.

7. Mark Graber, Of Guns, Ships. Pens, and Liberals.

8. Linda Colley, Linda Colley Responds.

What Yale Law School Teaches — Inadvertently — About the Appropriate Role of Diversity Officials

Andrew Koppelman

As the bitter controversy continues over Yale Law School’s disastrous mishandling of a discrimination complaint, some have wondered whether there ought to be diversity officials at all. The mutual incomprehension among students that led to this situation actually shows that they can do valuable work — if they get it right.

In some ways, opposition to racism is baked into the modern university. Law schools like Yale, where I was a student, or Northwestern, where I teach, admit the best students they can find, regardless of race, sex, social class, or other ascribed statuses. But that egalitarian ethic has not always existed. The old hierarchies leave their mark, and members of previously excluded groups often feel that they don’t belong. If that affects their academic performance, the university’s educational mission is impaired.

Faculty should care about this experience of isolation because teaching is an exercise in rhetoric, and rhetoric has a moral dimension. It forces you to learn about your audience, to get outside your own head and into the heads of other people. Universities need to know what alienates students.  Otherwise we can’t do our jobs as effectively as we could. The alienation of minority students is a problem that needs to be addressed.

The Tensions Surrounding Executive Rulemaking in Four Western Democracies

Guest Blogger

For the Balkinization symposium on Susan Rose-Ackerman, Democracy and Executive Power: Policymaking Accountability in the US, the UK, Germany, and France (Yale University Press, 2021). 

Peter Strauss

Susan Rose-Ackerman’s “Democracy and Executive Power,” is a magisterial work about executive creation and implementation in four western democracies, two presidential and two parliamentary, of public policy initiatives undertaken within statutory frameworks framing these executive tasks. Thus, its focus is on the process Americans call rulemaking (known in other systems as secondary or subsidiary legislation), the executive development of regulations to implement statutory directive.  This process is a universal necessity of governance in this complex and interdependent world. Yet it is equally necessary that it be undertaken by unelected bureaucrats, with the result, all too evident in contemporary American debates, that serious questions can be raised about its legitimacy in the face of the public’s claims for its participation and the actors’ accountability.  That is, as her title reflects, the central issue is answering the claims of democracy in relation to these actions. Legislators act after generally public debate, on public votes for which the electorate can hold them responsible.

Prof. Rose-Ackerman develops model after thoughtful and persuasive model, reflecting her background in economics and her deep understanding of executive policymaking. She is quite taken by the American process of notice-and-comment rulemaking, with its significant provisions for the public’s knowledge in advance of proposals to be acted upon, for public input then into the agency’s deliberative processes, for explanation much fuller than legislatures provide of agency reasoning in adopting a regulation, and for judicial controls considerably more demanding than apply to statutes. And she is chary, as am I, of the steady development of presidential controls tending to render the process more opaque and more subject to political capture in ways the electorate cannot well control.  The processes she finds in England, France and Germany generally lack our bureaucratic processes, but have elements – in France, for example, the training, discipline and traditions of its civil service – that tend to promote regularity compensating for issues of transparency, participation, and accountability.  Still, her general thrust is for the kinds of agency-level processes we enjoy.

Balkinization Symposium on Susan Rose-Ackerman, Democracy and Executive Power: Policymaking Accountability in the US, the UK, Germany, and France

JB

This week at Balkinization we are hosting a symposium on Susan Rose-Ackerman's new book, Democracy and Executive Power: Policymaking Accountability in the US, the UK, Germany, and France (Yale University Press, 2021).

We have assembled a terrific group of commentators, including John Ferejohn (NYU/Stanford), Liz Fisher (Oxford), Jeff King (UCL), Thomas Perroud (Panthéon-Assas University (Paris II), Mariana Prado (University of Toronto), Matthias Ruffert (Humboldt Universät zu Berlin), and Peter Strauss (Columbia).

At the conclusion, Susan will respond to the commentators.

Linda Colley responds

Guest Blogger

Mark Finchem Has a Section Three Problem

Gerard N. Magliocca

(Cross-posted at PrawfsBlawg)

Mark Finchem is a state representative in Arizona. He is now running for the GOP nomination to be Arizona's Secretary of State; the official in charge of running elections. Former President Trump has endorsed Finchem's candidacy. Representative Finchem was present at the "Stop the Steal" rally on January 6th and there are allegations that was connected with some of the groups that engaged in violence on that day. He is a member of the "Oath Keepers" and recently described the 2020 election in Arizona as "rigged."

Consequently, Representative Finchem may be barred from serving as Secretary of State by Section Three of the Fourteenth Amendment. He was a state legislator on January 6th who had sworn an oath to uphold the Constitution. If he "engaged in insurrection," then Section Three bars him from serving in any state executive office. Section Three is the only federal constitutional requirement for state office.

My understanding is that any voter in Arizona may challenge the eligibility of a primary candidate for state office on the ground that he cannot lawfully hold the office for which he is running. 

L'Affaire Emory, again

Andrew Koppelman

John Wilson and I debate the recent controversy at the Emory Law Journal, here.

The Voting Rights Conundrum, Part I

Stephen Griffin

Although there may be a Senate debate, as a practical matter the effort to pass voting rights measures may be dead for now.  However, but the issues raised by the current House bill (originally two bills) will likely be with us for some time.  Regardless of what happens in the Senate, I see some problems with the way the public debate has been conducted, even among voting rights experts, and that’s my concern here.  I’ll start with Yuhal Levin’s op-ed in the New York Times, arguing that the concerns Democrats and progressives have about voting rights procedures are misplaced.  Levin points out that the process of voting, such as registration, has been generally made easier in recent years, certainly easier if our frame of reference extends back to the 1980s, before the adoption of “motor voter” legislation and early voting.  This is the perspective taken by Justice Alito’s majority opinion in Brnovich.  For his part, Levin sees the parties as focused unduly on measures to improve (or obstruct) voter turnout, which is highly unlikely to actually affect which party wins or loses.  I agree with him on this point.  As he portrays it, the parties are locked in an unproductive policy stalemate.

Unfortunately, this viewpoint leaves out one region and one group of surpassing importance to the Democratic party and, one hopes, to the nation as a whole – African Americans in the South.  Perhaps Levin is overlooking the question of race because he references the “Freedom to Vote Act”, rather than the John Lewis Voting Rights Advancement Act, the response to Shelby County and Brnovich which renews for a new era the Voting Rights Act of 1965 (VRA).  But, in fact, a number of elements in the two laws are linked in that many of the states that have enacted restrictive laws are in the South, such as Georgia, Texas, and Florida.  If Levin is suggesting that Democrats ignore the perspective of African Americans in the South, that is an obvious nonstarter.  Indeed, given the history represented by John Lewis, their perspective ought to be our perspective.

Misperceiving the relevance of race seems something of a theme in recent commentary on the proposed voting rights measures and the advocacy of the Biden administration.  Consider a recent Washington Post’s “Fact-Checker” column by Glenn Kessler.  The essential problem with the Post’s analysis is that it analyzes the administration’s statements as if the voting rights controversy began in the aftermath of the 2020 election.  But the legal reality the John Lewis Act is meant to address goes back to the aftermath of the 2013 Shelby County decision, nine years ago.  It is well documented that in the immediate aftermath of the decision, states like North Carolina and Texas passed laws that would have been subject to DOJ preclearance under the VRA and probably disapproved.  These laws were subject to litigation, like the McCrory case in North Carolina and Veasey v. Abbott in Texas in which multiple appellate courts found that state legislatures acted with a racially discriminatory purpose.  From the perspective of the advocates of the John Lewis Act, to whom President Biden was speaking in his Atlanta address, this history matters.

The Supreme Court, vaccination and government by Fox News

Andrew Koppelman

Suppose Congress passed a law commanding the Occupational Safety and Health Administration (OSHA) to prevent deadly dangers in the workplace, and to act quickly if those dangers arise unexpectedly. And then suppose the Supreme Court declared that the bigger the emergency is, the less power OSHA has. OSHA can move fast to prevent a few bad injuries, but not if hundreds of thousands are dying.

That is, in essence, what the Supreme Court said yesterday, for reasons that threaten to merge Fox News with the US Reports.  I explain in my latest column at The Hill.

L’Affaire Emory

Andrew Koppelman

It is now notorious that the Emory Law Journal commissioned and then tried to censor, as “hurtful and unnecessarily divisive,” an article that denied the existence of systemic racism. When the author refused to bowdlerize his piece, the Journal rejected it. Two other contributors to the same issue withdrew their articles in protest. This has been portrayed as a familiar left/right fight, except for one detail: one of the authors who withdrew is on the left. Some have been asking, who is that guy and what was he thinking?

I’m that guy. I am urgently concerned about systemic racism, which I have written about extensively, but I withdrew to protest the illiberalism that has these student editors in its grip. That illiberalism is bad for the university and bad for racial equality. It reflects an increasingly influential conception of racial equality that is disgustingly indifferent to the welfare of the people it purports to help.  This isn’t a left/right thing.

I explain my decision in the Chronicle of Higher Education, here.

It is paywalled, but Eugene Volokh posts a longer excerpt than I'm supposed to, here.

The First Section Three Lawsuit

Gerard N. Magliocca

The suit was filed today against Congressman Madison Cawthorn of North Carolina. I have agreed to serve pro bono as an expert witness in this case if necessary.

UPDATE: I have an essay in The Washington Post commenting onsite of the broader issues raised by the cases.

187 Minutes

Ian Ayres

As our nation confronts the first anniversary of the attack on the Capitol, we might consider a 187-minutes of silence – from 1:10 pm to 4:17 pm EST today.  This is the length of time President Trump waited after the end of his speech on the Ellipse before asking the attackers to go home. 

The attack had begun in earnest at 12:53 pm when rioters “overwhelm[ed] police along the outer perimeter west of the Capitol building, pushing aside temporary fencing.”  So our President waited 204 minutes (from 12:53 to 4:17) after the violence began before uploading a video to Twitter which included the words:

I know your pain, I know you're hurt. We had an election that was stolen from us. It was a landslide election and everyone knows it, especially the other side. But you have to go home now. We have to have peace. We have to have law and order. We have to respect our great people in law and order. We don't want anybody hurt. It's a very tough period of time. There's never been a time like this where such a thing happened where they could take it away from all of us — from me, from you, from our country. This was a fraudulent election, but we can't play into the hands of these people. We have to have peace. So go home. We love you. You're very special. You've seen what happens. You see the way others are treated that are so bad and so evil. I know how you feel, but go home, and go home in peace.”

Our President wasn’t completely Twitter silent during this 187-minute period. 

The first rioters breached the Capitol defenses and began entering the building at 2:12 pm.  Trump responded at 2:24 pm, not by asking them to “stand down, and stand by” but by posting:

Mike Pence didn't have the courage to do what should have been done to protect our Country and our Constitution, giving States a chance to certify a corrected set of facts, not the fraudulent or inaccurate ones which they were asked to previously certify. USA demands the truth!

Then at 2:38 pm, more than an hour and half the attack began, he tweeted:

Please support our Capitol Police and Law Enforcement. They are truly on the side of our Country. Stay peaceful!

The insufficiency of this tweet, which again failed to ask the rioters to leave the Capitol was immediately apparent to his son, Donald Trump Jr., who franticly texted White House Chief of Staff Mark Meadows:

            He’s got to condemn this shit ASAP. The Capitol Police tweet is not enough.

At 3:13 pm, more than two hours after the attack began, our President tweeted:

I am asking for everyone at the U.S. Capitol to remain peaceful. No violence! Remember, WE are the Party of Law & Order – respect the Law and our great men and women in Blue. Thank you!

As with his earlier tweets, Trump fails to ask the protesters to leave the Capitol. It is hard for me to fathom that for still another hour from 3:13 to 4:17, Trump maintained Twitter silence. Only then did he tweet the mixed message which simultaneously inflamed by reiterating the lie that the election was “stolen” along with the call “So go home. We love you. You're very special. You've seen what happens. You see the way others are treated that are so bad and so evil. I know how you feel, but go home, and go home in peace.”  To say that this was too little, too late does not begin to convey the dilatory scope of Trump’s failure. 

* * *

As I think back to these harrowing moments a year ago, I am filled with visceral fear that the Capitol would be burned.  Much of me wants to turn away from those memories. 

We should resist the impulse to rush to enshrining particular modes of remembrance. And I tend to favor ways of observing anniversaries of our past that allow us as a nation to move forward.  But at least for this first anniversary, we might consider meeting Trump’s past silence with silence of our own. It is difficult in our constantly-connected world for people to remain silent for even one minute, and I can’t imagine that many Americans could bring themselves to remain silent for 187 minutes. But as we watch video footage of the Capitol attack today, let us consider for at least a few moments what for so long was left unsaid.

Yes, Virginia, it was an insurrection

Gerard N. Magliocca

The Wall Street Journal has an editorial out today arguing that January 6th was a riot, not an insurrection. This is nonsense, but nonsense suggesting that some people now realize that the Constitution speaks to what should happen to public officials who engage in insurrection and are starting to circle the wagons. Better to call what happened a riot, a jamboree, or anything other than an insurrection.

Why does the Journal say that January 6th was not an insurrection? Because it was not an "attempted coup" or a "conspiracy to overthrow the government." The problem is that this is not the definition of an insurrection. Let's start with some state definitions:

Iowa: "An insurrection is three or more persons acting in concert and using physical violence against persons or property, with the purpose of interfering with, disrupting, or destroying the government of the state or any subdivision thereof, or to prevent any executive, legislative, or judicial officer or body from performing its lawful function."

Mississippi: “The term 'insurrection,' when used in any statute, means an armed assembly of persons having intent to resist or subvert lawful authority.”

Colorado: “Any person who, with the intent by force of arms to obstruct, retard, or resist the execution of any law of this state, engages, cooperates, or participates with any armed force or with an armed force invades any portion of this state commits insurrection.”

Next, many presidents other than Lincoln have invoked the Insurrection Act. In virtually none of those instances was there an attempted coup or a conspiracy to overthrow the government. Instead, the problem was often armed mobs that were obstructing legal process. A famous example was President Eisenhower sending troops into Little Rock in 1957.

Third, Congress defined what occurred last year as an insurrection. The article of impeachment, which was supported by a majority of the Senate, used the term. The Senate unanimously passed (and over 400 House members adopted) a resolution awarding medals to Capitol Police officers who provided protection against the "mob of insurrectionists." It's awfully hard to have insurrectionists without an insurrection. 

Finally, Madison's Federalist #10 is subtitled "The Union as a Safeguard Against Domestic Faction and Insurrection." He wasn't talking about attempted coups or a conspiracy to overthrow the government.

Revisionism done well is vital in seeking the truth. Revisionism done badly is a whitewash. 

January 6th as a Constitutional Crisis

JB

Over a decade ago, in a more innocent time, Sandy Levinson and I developed a definition and typology of constitutional crises. Essentially, constitutional crises occur when the Constitution is no longer able to keep struggles for power within the boundaries of the Constitution. In other words, constitutional crises occur when the Constitution fails at its central task of keeping struggles for power within the legal boundaries of politics that the Constitution creates and maintains.

Covid and OSHA’s emergency powers

Andrew Koppelman

Libertarianism, Covid, and the Supreme Court

Andrew Koppelman

The Supreme Court will hear argument on the Biden vaccine mandates on Friday, Jan. 7.  Officially, the cases are about questions of federal power, administrative law, and the capacity of Congress to delegate authority to agencies.  But what is fundamentally driving the litigation is the libertarian myth – one that may be embraced by the new conservative Supreme Court majority - that freedom can be promoted by hamstringing the capacities of government.

I explain in my latest column at The Hill, here.

Reflections on January 6th and What's Coming Next

Gerard N. Magliocca

On the night of January 6th, I wrote the following post on this blog:

I find very interesting the use of the word "insurrection" to describe what occurred today at the Capitol. For example, Senator Romney issued a statement stating that today was "an insurrection, incited by the President of the United States." Senator McConnell described today as a "failed insurrection."

If so, then Section Three of the Fourteenth Amendment might apply to President Trump. People who "having previously taken an oath . . . as an officer of the United States . . . to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same" are ineligible to serve in a variety of federal and state offices. If President Trump is "an officer of the United States" and he did incite an insurrection against the United States, then he might well be ineligible under Section Three. . . .

In the weeks following January 6th, I wrote a series of posts and other short pieces arguing that Congress should respond by passing a non-binding resolution declaring President Trump ineligible to serve again as President and enacting Section Three enforcement legislation that would lay out an orderly process and clear standards for the federal courts to make ineligibility determinations with respect to Trump or anyone else. Of course, Congress did not take my advice. Maybe the January 6th Committee will take up the issue (and I hope that they do), but even then action from Congress is unlikely.

In the absence of congressional action, we face an upside-down application of Section Three. Lawsuits will almost certainly begin this year challenging the ballot eligibility of members of Congress who were allegedly involved in January 6th. Thus, state election officials and state courts will be forced to take the lead in deciding whether an attack on the national legislature triggers Section Three of the Fourteenth Amendment. If that sounds backwards, that's because it is. The structure and history of Section Three assumes Congress and the federal government will take the leading role in determining ineligibility. A state-centered process will be confusing due to the vagaries of state election law, partisan bias in some states, and the rapid timetable under which these cases must be decided. State primaries have fixed dates. Only a few months will pass between the initial suits and their final determination, which does not bode well for reasoned judgments in the states or in the Supreme Court. It won't be pretty. 

My final thought is that the legal and academic community is whistling past the graveyard by not giving more attention to Section Three as applied to the 2022 and 2024 elections. Perhaps this reflects a desire to avoid thinking about the implications of Donald Trump's comeback campaign. But Trump and the rest of the country are on a collision course with Section Three. It's just a matter of time.