Thursday, February 23, 2017

Originalism as Old and New, Part II

Richard Primus

Four days ago, I posted in this space some reflections about a very good conference I’d just attended at the University of San Diego Law School’s Center for the Study of Originalism.  The core of my reflection concerned a hypothesis I developed over the course of the conference: that there has been some movement in recent years among leading originalists toward the view that originalism hasn’t yet really been tried out in American courts.  Holding in abeyance the question of whether that hypothesis is correct—I didn’t do a survey of the thirty or so originalists at the conference, and I wouldn’t know how representative that group of thirty is of academic originalists overall—I then offered some thoughts about what would be interesting about movement toward that perspective among originalist theorists.

I’ve gotten various feedback to that post: some agreeing, some criticizing, some speculating further.  But one note of feedback seems to me to be worth reporting to the audience for these posts.  After my first post, two or three originalists who had attended the conference got in touch with me to let me know that they, personally, do not subscribe to the originalism-has-never-been-tried view, and one or two of them ventured further that they think I overestimated the number of people at the conference who do.  In a more recent post, John McGinnis—one of the prominent originalists at the conference I attended—has also come forth to say that I overestimated the incidence of the never-been-tried idea.  Given this feedback, I should take seriously the possibility that I did in fact overestimate.

It’s certainly possible.  I heard the idea articulated, in a few different forms, by (I think) five people at the conference.  But given the perceptions of others who were there, it’s possible that I overread the significance of that observation, in any of the following ways: (1) I extrapolated from what I heard, figuring that the people I heard from probably weren’t the only people at the conference to hold forms of that view.  But maybe I overextrapolated; maybe I happened to hear from everyone, or close to everyone, who has something like that perspective. (2) Maybe the originalists who report that the position is not on the rise are working from a different (and perhaps better informed) baseline than I am.  Maybe people who attend originalism conferences regularly were already accustomed to whatever the incidence of this idea is among originalists, and I saw as an uptick what to them is simply the status quo.  And then of course there are questions about the ability of insiders and outsiders to read a culture.  Sometimes insiders can better read what is actually going on in a community; sometimes it takes an outsider to notice something that insiders haven’t.  Which of those dynamics was more in play in this case, if either, isn’t something I’m qualified to judge.  But in any event, I’m grateful to those who reached out with the feedback, which should (and does) induce in me a healthy skepticism about my hypothesis of an uptick.

Of greater interest to a general audience than my perceptions, though, is the underlying set of issues about the ways in which originalism is old, new, or some combination of both.  To a considerable degree, I agree with McGinnis when he says that the practice of arguing from original meanings has waxed and waned over the course of American history and that it is today one of several contending approaches to constitutional jurisprudence, rather than being either alien or dominant.  I certainly agree that anyone who thinks American judges have never reasoned about constitutional cases by appealing to original meanings would be misreading the historical record, and not by just a little.  

Where I may differ from McGinnis is in certain judgments about how predominant originalism was at specific past times.  Quoting Madison and also Howard Gillman, McGinnis identifies originalism as present at the Founding and asserts that nearly all constitutional interpreters appealed to original meanings until the time of the twentieth-century progressives.  McGinnis is right, of course, that Madison and Gillman said what he says they said.  I have great respect for Gillman—and not less for Madison.  But I have always thought that Gillman overstated the case for universal originalism in the nineteenth century.  (Paul Kahn’s Legitimacy and History still stands as one powerful contrary view.)  And Madison’s endorsement of a jurisprudence of original meanings in the passage McGinnis quotes stands in contrast to some ideas articulated by his contemporaries.  Madison is called the Father of the Constitution, as McGinnis reminds us—but Gouverneur Morris, who actually wrote more of the document than any other single person, famously derided the idea, saying with the authority of the man who held the pen that a history of the Constitution would not be a good aid in interpreting its provisions. (To be clear, McGinnis doesn't say that everyone was an originalist near the Founding, just as I am not saying that no one was.)

The point here is not that people didn’t reason from and about original meanings near the time of the Founding.  Of course they did—which means “of course many of them did, at least some of the time.”  And others of them were skeptical of that approach.  Similarly, one can find originalist reasoning cropping up in many nineteenth- and twentieth-century sources, which doesn’t demonstrate that originalism, much less any particular form of originalism, was the consensus or dominant method of that age.  Argument from original meanings, it seems to be, have always been one strain of constitutional arguments, jostling with several other strains—a state of affairs that is still true today and that I would bet is likely to continue for some time.

The Anti Head of State

Gerard N. Magliocca

One fascinating aspect of the Trump Administration is that the President is functioning as the antithesis of a traditional head of state.  Think about a country where the head of state and head of government roles are divided (for example, Queen Elizabeth II and Prime Minister May). What does the head of state do there?  Basically, he or she acts as a unifying figure who is not partisan. The head of government is responsible for making policy, and the head of state performs ceremonial tasks and offers soothing rhetoric about values that are widely shared. American Presidents act like a head of state some of the time (and some, especially George Washington, did this more often) even though they are both the head of state and the head of government.

How is the current President breaking with this model?  First, thus far he rarely acts like a head of state.  In other words, almost everything he says or does is partisan (even on ceremonial occasions like wishing Americans a Happy New Year).  Obviously all presidents are partisan some of the time, but Trump is taking this further than his predecessors. Second, there is the strange phenomenon whereby members of the Cabinet or the President's staff are constantly telling people here and abroad that many of the President's statements are not, in fact, administration policy. This is kind of hard to understand--isn't he in charge of administration policy?

Maybe many of his tweets or off-the-cuff remarks are better understood as him acting as head of state (at least as he understands that role). In other words, if the Queen says something that contradicts government policy, nobody would treat that as changing government policy. They would ignore the contradiction or explain it away somehow.  The same thing is going on with many of the President's statements. What, then, is the point of these statements? Some of the time the answer is just that the President doesn't know what government policy is and doesn't bother to check before commenting. But some of the time he clearly does know what the policy is and does not like it or thinks that his supporters do not. Rhetoric serves as a symbolic endorsement of the values of his supporters.

In other words, instead of unifying the nation through symbols, the anti head of state represents only one part of the nation through symbols. Nevertheless, both are types of heads of state because their rhetoric in that role do not establish government policy.      

Wednesday, February 22, 2017

Will the United States survive the 2016 election (and 2017 Inauguration of Donald Trump)? Continuing

Sandy Levinson

Tomorrow I shall teach Prigg v. Pennsylvania to my class.  For non-professors, it is what I think is the worst single decision in our 225 year history.  Justice Story not only upheld the constitutionality of the Fugitive Slave Law of 1793, but also declared a constitutional right to "self-help repossession" by slaveowners who could kidnap purported fugitives without recourse to the slightest legal process (inasmuch as Story also declared unconstitutional Pennsylvania's "personal liberty" law that required going before a Pennsylvania court (or a federal court) before purported fugitives could be taken from the state.  Enforcement of Fugitive Slave Laws of 1793 and then 1850 helped to contribute to the breakdown of the Union, renting the "mystic chords of memory" that resulted in secession and then the slaughter of 750,000 persons between 1861-1865.

Donald Trump's truly wicked order makes deportation applicable to the following:

(a) have been convicted of any criminal offense; (b) have been charged with any criminal offense that has not been resolved; (c) have committed acts that constitute a chargeable criminal offense; (d) have engaged in fraud or willful misrepresentation in connection with any official matter or application before a governmental agency; (e) have abused any program related to receipt of public benefits; (f) are subject to a final order of removal but have not complied with their legal obligation to depart the United States; or (g) in the judgment of an immigration officer, otherwise pose a risk to public safety or national security.
Even (a) is unsettling, depending on what means by "any criminal offense."  Does this apply to traffic offenses?  Etc.  If we agreed on the magnitude of what constituted an adequate "criminal offense," though, it is hard to argue against deportation.  Perhaps even (b) is defensible if there is probable cause to believe that a truly serious felony has been committted.  All of the others are more disturbing Most telling, of course, is (g), which seems to give unfettered discretion to an extraordinarily low-visibility bureaucrat to destroy a person's life.  Perhaps there will be some kind of judicial review, but we can be sure that the authoritarians who now purport to speak in our collective behalf have no respect whatsoever for any semblance of "rule of law" save for the continuing secrecy of Donald Trump's tax returns.

More than ever, I strongly suspect that violence will break out in the foreseeable future when one of the modern slave-catchers, called employees of ICE (most of whom are undoubtedly honorable men and women being enlisted to behave in quite dishonorable ways), attempt to seize a purported undocumented alien and move immediately to place him/her in a modern concentration camp to be built along the Mexican border, prior to summary deportation.  As happened in the 1850s, I would be not be surprised if there were many loyal Americans who wished to stand in solidarity with the contemporary analogue to people who are going to be hunted down and subjected to merciless treatment at the behest of a sociopathic President and his fanatically anti-immigration minions.  Someone in going to to use readily available firearms, and it will not be good for the country.  (For one thing, the authoritarians in the White House and, thanks to the spinelessness of Republicans in the Senate, the office of Attorney General, are undoubtedly eager to move toward martial law and suspension of habeas corpus if at all possible.)

One argument that one often hears, as I did literally moments ago on an NPR interview with the sheriff of Bristol County, Massachusetts, is that the crackdown is unexceptionable because, after all, we are a country that believes that people should obey the law.  Where does one start with such pietistic foolishness?  (This is not the occasion for a full-fledged examination of "prosecutorial discretion.")  Let me begin only with the following:  Will Trump and Sessions immediately send federal authorities to arrest everyone in Colorado who is undoubtedly and unequivocally violating the perfectly constitutional (see Raich) federal laws prohibiting the possession and sale of marijuana?   Eric Holder backed down, allowing de-facto "neo-nullification"--this is treated in an excellent essay by Duke's Ernie Young in my recent edited book Nullification and Secession in Modern Constitutional Thought--by Colorado because he sensibly believed that it would simply be too costly politically to move against the reefer-loving Coloradans.  For similarly prudential reasons, the Obama Administration refrained from prosecuting anyone for the torture that occurred in our name during the Bush Administration.  But what about Trump and Sessions?  Will they be willing to move against Colorado and other states that have adopted extremely sensible policies of "legalization" of drugs in contravention of undoubtedly valid and superseding federal laws? Or is the difference that the Coloradans who are enjoying their freedom (and feeding lots of tax revenue to the Colorado state government) are largely white yuppies who vote (and, no doubt, contribute to political campaigns), whereas a bully like Trump need not fear any political retribution from the poor wretches whose lives he wishes to destroy?

Anyone who is not terrified about the future of our country is in extreme denial.  Is King Lear really correct when he declared that "even a dog's obeyed in office"?  We must increasingly begin addressing some of the most fundamental questions of what constitutes a legitimate government and, consequently, when its unjust commands compel the disobedience of loyal citizens.   The deportation order, let me suggest, is the equivalent of Dred Scott:  According to the Trump Administration, undocumented aliens (and Muslims from around the world) have no rights that the rest of us are bound to respect.  It will be up to the judiciary, whose record over our entire history does not entitle one to exhibit great optimism, to decide how true this will turn out to be.  More important, I suspect, is the extent to which Americans loyal to the best vision of our Constitution, as found in the Preamble or Martin Luther King's "I Have a Dream" speech, will decide to engage in collective opposition.  And if this opposition takes the form of "sanctuary states" (like California) and not only "sanctuary cities," we might be well on our way to a serious secessionist movement that many of us would find altogether defensible politically.  

Monday, February 20, 2017

Does New York State Have a Copy of President Trump’s Federal Returns?

Guest Blogger

Gregory Klass

There has been a lot of talk about the new role state attorneys general have been taking on as a check on federal overreach. The Virginia and Washington AGs, for example, have brought important lawsuits to halt President Trump’s immigration executive order. Then there is Jed Shugerman’s creative idea  that states bring quo warranto actions to investigate possible by Trump corporation activities that might result in violations of the Emoluments Clause. Dahlia Lithwick has written up a nice explanation of Jed’s idea.

There is something else state attorneys general might do. It is now absolutely clear that the President will not release his federal tax returns. 

Any state with a copy of those returns could choose to share them with Congress.

Read more »

Sunday, February 19, 2017

Originalism as Old and New

Richard Primus

I spent the weekend at a terrific conference at the Center for the Study of Originalism at the University of San Diego Law School.  There were good papers, insightful commentaries, sharp questions, and a general seriousness of engagement.  Most of the people in attendance were originalists.  I was one of a small but non-trivial number of critics of originalism there, and the fact that we were included also speaks well for the conference, of course.  I learned things worth learning and would be delighted to go again.

One of the things I learned -- I think -- was something about the growth of a relatively new perspective on originalism among leading originalists.  Over the course of my time as a law professor, I've periodically heard originalists say that originalism is a new interpretive theory, one that has never really been put into practice.  One upshot of this view is the further idea that little or nothing in judicial practice to this point in time should be adduced as evidence of serious problems with originalism as a judicial method, because nothing that's been done so far is originalism.  If judges trafficking in individual meanings have been sloppy with their history, or if looking to original meanings doesn't have a demonstrated capacity to reduce the scope of disagreement among judges (because judges interpreting original meanings seem to come down on opposite sides of a contested question pretty much in the same proportions as we'd guess they'd come down on opposite sides if they used some other method), it doesn't follow that originalists shouldn't claim that courts can in fact learn to do history properly of that originalism has the virtue of making the law more determinate than other decisionmaking methods do.  What seems like counterevidence isn't, because real originalism has never yet been tried.  And in the meantime, we should recognize that originalist theory is in its infancy and cut it some breaks accordingly.  If we let it mature, and then road-test it, it might turn out to be great.

What I noticed about this view at this weekend's conference was that it seems to be held by more leading originalists than I think was the case ten or even five years ago.  I heard this view articulated, or at least alluded to, by originalist scholars of various different stripes: young and old, diverse in terms of the particular form of originalism they favor, and so forth.  To be sure, the view isn't universally held among today's leading originalists: I'm sure any number of the originalists at the conference would disavow it.  Indeed, there are some extant theories of originalism that rely on the contrary claim that we've in fact been doing originalism all along.  (Think of methodical-postivism originalists like Will Baude and Stephen Sachs.)  But if the thirty or so originalists at this weekend's conference are a representative sample, the community of leading originalist theorists has shifted at least some appreciable distance toward the view that originalism has never yet been tried.

I grew up hearing people say that communism had never been tried, either, and perhaps there's a cautionary tale in that comparison.  Sometimes an idea is worth giving up on even if its core supporters don't believe it's yet been fully put to the test.  But perhaps the comparison is misleading: just because people have made the never-been-tried argument as a way of not coming to grips with the problems in practice of one idea doesn't mean that every use of never-been-tried is similarly flawed.

Besides, I am in important ways in agreement with the originalists who say that their idea hasn't been tried.  Modern originalism is largely born of reaction to the Warren and Burger Courts; it began to be seriously theorized in the 1980s and has come a considerable distance since then.  And at no time, I think, has it been the dominant practice of the courts.  That doesn't mean, I think, that we can't look to what judges have actually done when construing original meanings to make some inferences about the limits of the method.  But it does mean that originalism, in its modern theorized form, is relatively new.

I think it striking that if this view of originalism as new and untried is now becoming common among the vanguard of originalist theorists, it represents a notable break between that theoretically minded group and most of the originalists on the bench.  On the bench, and also in other spheres, originalists usually present their theory as if it were not just the best theory but also the way we've always done it, or at least the way we did it before a strange and unfortunate run of (maybe well-intentioned) lawlessness in the middle of the twentieth century.  One smart originalist judge in a recent prominent case asserted the proposition this way: "All Justices, past and present, start their assessment of a case about the meaning of a constitutional provision by looking at how the provision was understood by the people who ratified it."  772 F.3d 388, 403.  That view claims for originalism not just whatever authority it has as a theory but also the authority of widespread and settled practice.  That latter claim of authority rests, of course, on an understanding diametrically opposed to the idea that originalism has never yet been tried.

There's nothing odd about theorists and practitioners having different accounts of the idea that they purport to share.  (Just as there's nothing odd about internal divisions among theorists, or among practitioners, about the same sort of thing.)  But as constitutional theory moves through the next decade, I think it will be worth keeping an eye on how the never-been-tried idea does or does not take hold.  Here's one reason why.  Among most lawyers and many legal theorists, one of the attractions of originalism is the idea that it would hold the law stable--that it maintains the integrity of existing law against the threat posed by judicial attempts at unwarranted change.  In reality, though, and for reasons that I have explained elsewhere and that other people (including the host of this blog) have explained before me, originalism is probably a better technology for creating legal change than for stopping it.  The never-been-tried idea comes within a whisker of acknolwedging openly that originalism is a bid to change the law as it has actually existed.  After all, if we settle legal questions with a method that has never yet been tried, we can only assume that we will reach results different from the ones we have been reaching for all of history up until now.  Otherwise, what would the point of changing the method be?  (Originalists can of course say that their proposed changes to the law amount to a restoration of a long-lost correct law.  But be that as it may, a proposal to do things in a way that has never been done before is a proposal to work significant change.)

I don't know how originalists beyond the theoretical vanguard will respond over time to the never-been-tried idea and its attendant implication that originalism promises to change the law rather than to stabilize it.  Nor do I know how people who have no firm views on originalism will react if these issues become visible to them.  But I am very much interested to find out.

Saturday, February 18, 2017

Crisis? What Crisis?

Stephen Griffin

The Vox story recommended below struck a particular nerve with me.  So I will record my disagreement, at least from a methodological perspective, with some of the views expressed by the various eminent scholars consulted in the well-reported story about how to tell whether we are in a constitutional crisis.  I engaged with Keith Whittington on this question long ago on the Law courts list.  That’s because Keith took issue with the discussion of constitutional crises in my first book American Constitutionalism.  I followed up by replying in Long Wars and the Constitution and in a short article taken from Long Wars which can be accessed here.  So, from my perspective, here we go again.

Two general observations.  Constitutional crises are historical events and I hope we can agree that they are best studied as history, that is, taking into consideration the self-conscious understanding of the participants.  I think it sensibly follows that it is best to proceed inductively, by examining widely agreed-on instances of constitutional crises to build a theory about what they are and why they occur.  But this pretty clearly puts me at odds methodologically with Keith, who would rather proceed from first premises.

And I do agree with the scholars consulted that the current situation doesn’t count as a constitutional crisis (subject to the comments below and see this article referencing a “governing crisis” in the Trump administration).

Nevertheless, something is a bit off with the views expressed in the article.  After reading it you might well wonder whether there were any constitutional crises at all in the twentieth century, at least after the 1957 Little Rock crisis.  I didn’t see a reference to the 1937 confrontation between FDR and the Court, Watergate, and Iran-contra.  They were certainly perceived as crises at the time which from my perspective makes them canonical.  Any theory of constitutional crises thus has to account for them.  Consider that the scholars consulted agree that if President Trump were to defy a federal court order, that would probably qualify as a constitutional crisis.  But what if the president leads a criminal conspiracy to discredit his opposition and stay in office?  That doesn’t count?  For these scholars, Watergate is reduced to whether Nixon defied the Court in the wake of the ruling in US v. Nixon (he didn’t).  But as I detail in Long Wars, Watergate was a crisis long before July 1974.

So let’s restart.
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Friday, February 17, 2017

Would a Parliamentary System Stop Trump?


The United States has a presidential system. That means that once a president is elected, he or she stays in office for four years, barring death, disability, resignation, or impeachment. The 25th Amendment allows for the Vice President and the Cabinet to displace a president who is unable to perform the duties of his or her office, but we have not yet seen that particular mechanism work in operation to determine how well it would operate.

In a parliamentary system, by contrast, a prime minister can be removed from office if he or she loses a vote of no confidence, leading to new elections.  Sometimes an internal struggle within the ruling party can force a prime minister to resign even without a new election being held.

Donald Trump's first four weeks in office, capped by his bizarre press conference on Thursday, may lead his opponents to wonder if they are stuck with his antics for four full years. Wouldn't we be better off with a system that allows for votes of no confidence? Sandy Levinson, for one, has argued that we should consider adding such a feature to our Constitution, and in our essay on constitutional dictatorship, Sandy and I discussed how such a system might work.

Trump's example shows the advantages of a system with a vote of no confidence over our current presidential system.  Nevertheless, I want to offer a few caveats, particularly as applied to the current situation. The basic problem is that Trump is a very skillful demagogue, and demagogues don't necessarily do badly in parliamentary systems. Votes of no confidence may not work as effectively to stop demagogues as they do to handle leaders who are merely incompetent or who are otherwise disabled.

First, Trump has fervent supporters in heavily conservative Republican districts and states, and the Representatives and Senators in those districts and states know it. They are unlikely to want to bring him down if they believe that they will be punished for doing so by Trump's supporters in the Republican Party. Thus, as a threshold matter, it is by no means clear that Trump would lose a vote of no confidence at this point.

Second, even if Trump lost such a vote of no confidence, he would have a very good shot at winning a second election, further strengthening his hand. That is because electoral districts in the United States are first-past-the-post. Because of the distribution of population in cities and rural areas, and effective gerrymandering, Republicans have a distinct advantage in the House of Representatives. In a parliamentary set up, there are good reasons to think that, following a new election, Republicans would once again be the majority party, and Trump would again become their leader.  Winning an election might convince him to double down on his current leadership style and policies. It might make things worse, not better.

One could avoid this result if one not only switched to a parliamentary system, but also changed the rules of electoral representation, for example, by moving to a system of proportional representation.  But in a system like Great Britain's, Trump might very well stay in office and become even more powerful than before.

Third, Trump thrives on chaos and he clearly loves campaigning. As a narcissist, he needs constant attention and affirmation, which campaigning gives him. (It is no accident that after winning the election, he held a series of rallies, and that following his current troubles, he has responded by staging yet another rally in Florida.)

Losing a vote of no confidence would just mean that the United States would hold a new national election. This would actually allow Trump to spend less time governing and more time campaigning. It would play to his strengths, not his weaknesses. Trump would be able to stage rally after rally engaging in the same sort of tactics he engaged in during the 2016 election. It would allow him to consolidate his support among his most fervent followers, and might accelerate the tendencies toward authoritarian leadership that have recently emerged in American politics.

The problem we face is that Trump is not simply incompetent. He is a demagogue, and a very skillful demagogue at that. He is especially effective at the sort of symbolic politics and the politics of resentment that characterize contemporary presidential campaigns. Encouraging him to run a series of campaigns does not seem designed to make him weaker, but to make him stronger, while the country's business is left unattended.

Fourth, in a parliamentary system, Trump's government might fall without calling for a new general election. That might happen if he lost a contested leadership election, as happened to Margaret Thatcher. But, as noted above, he would be unlikely to lose such an election as long as the Republican base still adores him, which it apparently does.

This is not to say that our presidential system is perfect. But it has a different way of dealing with demagogues. It hinders them, slows them down, and renders them ineffective. In extreme cases, it can remove them through impeachment. But, as in the case of parliamentary systems, that also requires the leader's party to abandon him. We are not there yet.

Wednesday, February 15, 2017

Departmentalism, Judicial Supremacy, and Trump

Guest Blogger

Keith E. Whittington

The Trump administration is doing it wrong.  But perhaps I should be more specific.

The administration is unhappy with the courts. It is not clear that President Trump had any real concerns about the courts until his own executive order began to run into legal trouble. Nonetheless, the administration has quickly ramped up the rhetoric attacking the judiciary, spurring fears that the president will do serious damage to legal institutions and might even refuse to comply with judicial orders. From the president’s disparaging of a judge’s ethnic heritage on the campaign trail to White House adviser Stephen Miller’s talk show rejection of “a judicial usurpation of power” and insistence that the president’s decisions “will not be questioned,” the administration has been unusually aggressive in challenging the authority of the courts.

Presidential criticism of the courts is not unprecedented. When the New Dealers first coined the term “judicial activist,” they were making the same point and were just as shocking as President Trump’s jab at “so-called judges.” When Abraham Lincoln began his presidency with the pronouncement that the “people will have ceased to be their own rulers” if judges could irrevocably fix “the policy of government, upon vital questions, affecting the whole people,” he was throwing down a fundamental challenge to the supremacy of judges in interpreting and enforcing the requirements of the Constitution. Miller is merely echoing Lincoln, or more recently Attorney General Edwin Meese, when complaining that “we have a judiciary that has taken too much power and become, in many cases, a supreme branch of government.”

If the Trump administration is trying to borrow a page from such successful presidents as Thomas Jefferson, Andrew Jackson, Abraham Lincoln and Franklin Roosevelt, they have not paid sufficient attention to American constitutional history. There is value in presidents pushing back against judicial authority, but presidents have a responsibility to do so in the right circumstances and with care. In particular, the administration would benefit from considering three lessons from the experience of their predecessors.

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Tuesday, February 14, 2017

Reciprocal Legitimation in Response to President Trump

Neil Siegel

In Reciprocal Legitimation in the Federal Courts System, I offer an account of the relationship that the Supreme Court may forge with most lower federal courts in response to perceived threats to the public legitimacy of the federal judiciary.  I suggest that a three-stage process of reciprocal legitimation helps explain the path from Brown v. Board of Education to the subsequent per curiams, from Baker v. Carr to Reynolds v. Sims, and from United States v. Windsor to Obergefell v. Hodges.

At stage one, the Supreme Court intervenes to a limited extent in a heated cultural or political conflict by deciding less than it is entitled to decide.  At stage two, most lower federal courts expand the scope of the Court's initial ruling and invoke that ruling as authority for doing so.  In the final stage, the Court invokes those lower court decisions as authority for validating the expansion. 

At the initial stage, the Supreme Court may or may not intend for the lower courts to expand the scope of its initial ruling.  The difference between intended and unintended reciprocal legitimation is relevant to a normative analysis of the conduct of a Court that is prepared to sacrifice some judicial candor in the service of preserving its public legitimacy.

President Trump's recent attacks on the legitimacy of the federal courts raises the questions whether it is likely and desirable that intended reciprocal legitimation--or something like it--will emerge in the years ahead.  The federal courts are asserting their authority now, but they will inevitably become more vulnerable in the event of a significant terrorist attack, especially because the President has given specific indications that he will blame them (as well as the news media) if such an attack occurs.  And as Curt Bradley and I have written over at Lawfare, the President may be trying to create a narrative of judicial usurpation that he can use after an attack to rally a frightened public behind his disregard of judicial authority.

In a new Coda to the article, I suggest that strength in numbers is one way in which federal judges likely will and should rebut the President's repeated assertions that their decisions are political.  By calling their legitimacy into question, the President may succeed only in generating more judicial unity than would otherwise be possible. 

The 25th Amendment Option: Law and Politics

Mark Tushnet

After less than a month (!), impeachment talk is in the air. Color me quite skeptical: Nothing will happen until enough "important" Republican politicians decide that it's time to throw Trump overboard. They're getting some modest things they like from some of his Executive Orders (but real problems from the immigration EO), the hope that eventually they'll put legislation in front of him that he'll sign, and a lot of tzuris from him. They could get the first two, and not the third, from President Pence. But, the word on the street is that Republicans are afraid that Trump's core supporters will retaliate against them if they are seen to have pushed Trump overboard.

There's another route, though -- the 25th Amendment. When the Vice President and a majority of the Cabinet declare that the President is "unable to discharge the powers and duties of his office," and send that declaration to Congress, the Vice President immediately becomes Acting President. The (now not quite) original President then can send his own declaration to Congress, "Yes, indeed, I'm able to discharge the powers and duties," and he becomes President (again) -- unless the Vice President and a majority of the Cabinet send another declaration, "No he isn't." within four days. At that point Congress has two days (if in session) to determine by a two-thirds vote in both Houses that yes indeed he is unfit. If the vote goes against the President, the Vice President becomes Acting President (apparently until the end of the original President's term -- so Pence would have the title Acting President, not President).

Republicans in Congress can't keep their hands entirely clean in this process. As things now stand, at least nineteen Republican Senators would have to vote that Trump is unable to discharge, etc. (unless Trump goes without a peep after the first letter to Congress). (And I think that Democrats would be well-advised to insist that Republicans adhere to the Boehner Rule -- "We won't vote that he's unable to discharge, etc., unless a majority of you do" -- for obvious reasons.) But, the letter from the Vice President and a majority of the Cabinet would give congressional Republicans some political cover -- "Look, even his people -- the ones he chose, and one you chose [Pence] -- think it's time for him to go; don't be too mad at us."

The legal part of all this is, What does "unable to discharge the powers and duties" mean? The clear intention of the Amendment's drafters was to deal with situations of physical and mental disability (Garfield for the eleven weeks between his being shot and his death, Wilson after his stroke). But that's "expected applications" originalism. The text is compatible with an interpretation in which "unable" means "unfit by demonstrations of sustained and serious failures of temperament" (or something along those lines). Another way to put it is that "unable" should be interpreted in a way just short of Gerald Ford's "high crimes are whatever a majority of the House think they are" standard: If there's a reasonable case to be made that the President is unable to discharge, etc., according to some reasonable understanding of "unable," the 25th Amendment is satisfied.

[Now for even more of the "I smoked too much of the wrong stuff" stuff. As I read the 25th Amendment, when the process I've described is followed, there might be a "vacancy in the office of the Vice President" -- although that reading isn't forced upon you (maybe Pence would be both Acting President and Vice President, though that too creates an awkwardness in connection with the Vice President's role as presiding officer in the Senate). If so, Acting President Pence gets to nominate a Vice President, who takes office on confirmation by a majority vote in both houses. I think Acting President Pence should -- in some "good government" sense of "should" -- nominate a centrist Democrat as Vice President. And, even more, I think that the Cabinet members who signed the letter to Congress should resign their positions (the ones who have divested lots of assets will be pissed at doing that), and that Acting President Pence should reconstitute a Cabinet of national unity, with a substantial number of Democrats. The even more extreme version of this, which someone else suggested -- I can't remember who -- is that Acting President Pence nominates Hilary Clinton to be Vice President and then, after her confirmation, resigns as Acting President and maybe even as Vice President.]

Monday, February 13, 2017

More on Constitutional Crisis


Over at Vox, Dylan Matthews has a nice round up of the literature on constitutional crisis, constitutional hardball, and constitutional showdowns. All the experts that Matthews interviewed agreed, as I had suggested in a previous essay, that we are not currently in a constitutional crisis, although it might happen at some point in the future if President Trump refuses to obey a direct judicial order.

Not A Suicide Pact. Sad!

Gerard N. Magliocca

You are probably familiar with the line that "The Bill of Rights is not a suicide pact." This phrase is sometimes invoked to justify restrictions of civil liberties in the interests of national security and comes from Justice Robert H. Jackson's dissent in Terminiello v. Chicago, a 1949 case in which the Court held that the First Amendment prohibited the conviction of a speaker for "breach of the peace" because his political comments led to angry protests at the event he was addressing.  Justice Jackson stated: "There is danger that, if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact."

Despite the fame of this image, in my upcoming book on the Bill of Rights I observe that no President (as President) has ever quoted this line or anything like it. This is remarkable when you consider how many security threats the United States has faced over the past sixty-plus years and demonstrates our deep commitment to the freedoms listed in the Bill of Rights.  I suspect, however, that this streak will end with the current President.  He has not said anything about the Bill of Rights so far, but during an interview on Meet the Press in July he did say "Our Constitution is great. But it doesn't necessarily give us the right to commit suicide, OK?" 

When the President issues a new executive order on refugees and immigration, let's see if he reaches for this idea again to justify that action in the face of public criticism.  

Saturday, February 11, 2017

Does Jason Chaffetz understand his job?

Andrew Koppelman

Rep. Jason Chaffetz has some explaining to do. As chairman of the House Committee on Oversight and Government Reform, the Utah Republican spared no effort in leading the multiple investigations of Hillary Clinton. Yet he has shown little interest in investigating, or even questioning, President Donald Trump's myriad financial entanglements. His explanations of the difference suggest that Chaffetz doesn't even understand why Congress has the power to investigate in the first place.

My colleague Steve Lubet and I elaborate at, here.

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