Impeachment and bullshit

Andrew Koppelman

 Almost all Republican Senators – 45 out of 50 – agree with Donald Trump’s lawyers that it would be unconstitutional to impeach Donald Trump after he has left office.  The legal claim is weak, but it is mighty convenient.  It gives them an excuse (a weak one, as I’ll explain) for voting to acquit without having to take any position on whether his incitement of the riot of January 6, and his bland, passive indifference as his devoted followers spread death and destruction, were impeachable offenses.  The constitutional claim is being carefully debated, but it should not be taken seriously.  That is because the members themselves clearly do not take it seriously.  They don’t care whether it is sound, and their reasons for embracing it have nothing to do with its soundness.  It is, if one may use a precise technical term, bullshit. 

The philosopher Harry Frankfurt, in his now-classic essay On Bullshit, defines the term to mean words uttered with indifference to their truth.  “It is just this lack of connection to a concern with truth—this indifference to how things really are—that I regard as the essence of bullshit.”  The bullshitter, Frankfurt observes, “does not care whether the things he says describe reality correctly. He just picks them out, or makes them up, to suit his purpose.”  He “does not reject the authority of the truth, as the liar does, and oppose himself to it. He pays no attention to it at all. By virtue of this, bullshit is a greater enemy of the truth than lies are.” 

On January 26, Senator Rand Paul forced a vote on his objection to Trump’s trial, claiming that a President cannot constitutionally be impeached after he leaves office.  He was supported by 45 Republicans, leading many to think that there is no chance that Trump can be convicted by the required two-thirds majority (which would mean that 17 Republicans would have to vote to convict). 

After his motion failed, Paul tweeted: "45 Senators agreed that this sham of a 'trial' is unconstitutional. That is more than will be needed to acquit and to eventually end this partisan impeachment process. This 'trial' is dead on arrival in the Senate."  Senator Susan Collins, who voted against Paul’s motion, similarly told reporters, “it’s pretty obvious from the vote today that it is extraordinarily unlikely that the president will be convicted. Just do the math.”

 Both are presuming that a vote against constitutionality means a vote to acquit.  That makes no sense, if the Senators are concerned about the Constitution.  But the fact that Paul and Collins are probably right shows that the Constitution has nothing to do with what’s going on here.  The constitutional analysis is exactly the kind of bullshit that Frankfurt is talking about. 

Now that the Senate has resolved the constitutional question and decided it can go forward, the members, having been outvoted on the jurisdictional question, are obligated to accept that decision and considering Trump’s conduct on the merits.  Judges on appellate panels do that all the time.  They don’t get out of their duty to decide the case on the merits once it is properly placed before them.  Or, if they are immovably committed to the idea that the Senate trial is illegitimate, Senators can refuse to participate, and boycott the trial.  Of course, that would make conviction more likely, because the Constitution says that it requires “the Concurrence of two-thirds of the Members present.”  The fewer the members present, the lower the number needed to convict; just do the math.  But if you’ve got no authority to participate, then that’s not your concern, is it? 

Either of these options, however, would infuriate some part of the Republican party base, most of which loves Trump and the rest of which finds him sickening.  So Republican Senators need a rationalization for voting to acquit without taking any position at all on what Trump did. 

The claim that Congress can’t impeach a former president, which the Republicans have almost all rallied around, is actually pretty dubious.  The Constitution gives impeachment two functions, to remove a malefactor from office and to bar him from future office.  To confine it to only one of those functions is like saying that a claw hammer can only be used to pound nails, and mustn’t be used to pull them out again. 

But those who deploy the constitutional argument don’t care whether it is correct.  The point is to give legal cover to those who are acting from other motives, to give their actions a false sheen of conscientious legality.  The way you’ll know that they don’t take their own argument seriously will be if they use the constitutional objection as an excuse for voting to acquit Trump (as I confidently predict they will).  In that context, it’s not an argument at all.  It’s bullshit.

Trump v. Sasse

Gerard N. Magliocca

This could be the caption of a Supreme Court case decided in 2023 or 2024.

Even if Congress takes no action under Section Three of the Fourteenth Amendment, the issue of the former President's possible ineligibility under that provision will be raised if he runs again. Anyone else seeking the GOP nomination in 2024 could challenge Donald Trump's eligibility for the primary ballot, citing Section Three. The ensuing litigation would probably reach the Supreme Court from some state and would need to be decided before the party delegates start being allocated, lest there be chaos. While the Justices probably dread the prospect of such a case during a campaign, they may have no way out.

This is why it's so important for Congress to set up a fair process to adjudicate Section Three eligibility issues well in advance of the next election. And this is true even if Trump decides not to run. If Ted Cruz or Josh Hawley run instead, people will also challenge their eligibility under Section Three. (I would say those challenges would be without merit, but we will need a prompt resolution either way.) 

Balkinization Symposium on Mary Ziegler, Abortion and the Law in America-- Collected Posts

JB

Clarifying Section Three of the Fourteenth Amendment

Gerard N. Magliocca

The Washington Post has a story out today that makes an error in describing the proposed use of Section Three against the former President. A Concurrent Resolution of Congress declaring Trump ineligible to serve again does not bar him from office. Such a resolution would only express Congress's view that he is ineligible, just as the Senate expressed its view in 2008 that John McCain was eligible to be President. In both cases, though, only a court can make the ultimate determination. A Concurrent Resolution would just be persuasive authority that a court could cite in favor of ineligibility.

When Section Three legislation and/or a concurrent resolution is introduced in Congress, I think all of this will become easier to understand and describe.  

Response to the Symposium on Abortion and the Law

Guest Blogger

For the Symposium on Mary Ziegler, Abortion and the Law in America: Roe v. Wade to the Present (Cambridge University Press, 2020).

Mary Ziegler

At what is undoubtedly a crucial point in the history of abortion law, I’m especially honored by the attention paid to my book, Abortion and the Law in America: Roe v. Wade to the Present (Cambridge 2020). Jack Balkin has brought together four brilliant contributors whose work in this field has influenced my own. I am grateful to Jack and to each of the contributors for such a rich discussion of my book.

In different ways, the commentaries on Abortion and the Law all grapple with questions that keep me up at night: how can historians write about a topic as divisive as abortion, especially after any consensus about the basic facts has broken down? What is—or should be—the relationship between history and advocacy?

Who May/Should Preside at Trump's Second Impeachment Trial?

Jason Mazzone

Vik Amar and I have a new essay on who may/should preside at the second impeachment trial of (former) President Trump. Senator Patrick Leahy? Or Vice President Kamala Harris? Or Senator Mazie Hirono? Or Chief Justice John Roberts after all? Read here. 

Constitutional Trench Warfare over Abortion

Mark Graber

For the Symposium on Mary Ziegler, Abortion and the Law in America: Roe v. Wade to the Present (Cambridge University Press, 2020).

Americans have engaged in constitutional trench warfare since the demise of the Warren Court.  For almost fifty years, progressives and conservatives have fought pitched battles over a wide range of constitutional issues with each side on most fronts gaining only a few feet of constitutional turf.  The exclusionary rule and Miranda warnings remain the law of the land, but they are now chocked with enough exceptions so that sophisticated police officers and prosecutors can usually find ways to admit the resulting incriminating evidence and confessions.  The number of religious monuments government can place or maintain on the public square has increased, but unadorned displays of the Ten Commandments are still out.  Lower federal courts battle, without help from the Supreme Court, over how dangerous a gun needs to be for that weapon to be subject to legislative bans.  Congress can tax people who do not buy health insurance, but cannot compel purchase.  Same sex marriage, campaign finance and, in the last year or so, free exercise are among the few subject matters in constitutional law in which either progressives or conservatives have made substantial gains.

Abortion and the Law in America: Roe v. Wade to the Present documents how this constitutional trench warfare has structured debates over abortion rights during the past fifty years.  Professor Mary Ziegler meticulously details how a debate Laurence Tribe once called “the clash of absolutes” has become bogged down in factual minutia about the “costs and benefits” of different abortion policies.  Although repeating “costs and benefits” what seems like two-hundred times in a two-hundred page book is overkill, Ziegler successfully drives her point home.  Pro-choice and pro-life forces continue to make appeals to broad principles of human flourishing and right.  Nevertheless, the daily arguments that now dominate abortion discourse are tied to very specific facts and very specific outcomes and concern the costs and benefits of different policies affecting the health of women, the status of the unborn, the public fisc, and religious freedom.  Supreme Court doctrine that once explored the balance between reproductive freedom and potential life now turns on whose testimony about abortion clinics is to be believed.  Americans at present often forego rights talk when discussing abortion, Ziegler correctly details, but contrary to common predictions foregoing or supplementing rights talk in favor of or with policy analysis has done nothing to diminish a debate marked by “hopeless polarization, personal hatreds, and political dysfunction.” (212).

Congressional Declarations on Presidential Eligibility

Gerard N. Magliocca

One question that people are asking about applying Section Three of the Fourteenth Amendment to Donald Trump is whether there is any precedent for the Senate passing a resolution giving its opinion on the constitutional eligibility or ineligibility of a single person to be President. 

The answer is yes. In 2008, the Senate passed a resolution stating its opinion that John McCain was a Natural Born Citizen eligible to the President. (McCain was born in the Panama Canal Zone, which gave rise to claims that he was constitutional ineligible). The resolution, if you want to take a look, is S. Res. 511 (110th Congress).

If the Senate can declare its view that someone is eligible under the Constitution to be President, why can't the Senate declare its view that someone is ineligible under the Constitution?

Blaming the Wrong Rights

Guest Blogger

Ziegler’s core argument is that the clash over policy was just as divisive as the clash over rights. “Rather than illuminating possible common ground,” she tells us, “arguments about the policy costs and benefits of abortion made compromise even more unimaginable” (60). The two camps disagreed not only about the consequences of abortion, but also the “basic facts” (198); stymied by unhelpful medical and scientific research, antiabortion groups explicitly cultivated “the development of new sources for abortion data” to support their alternative understandings of the procedure (75). According to Ziegler, this trajectory was not inevitable. In the immediate aftermath of Roe, accommodation of opposing positions appeared attainable—a point that builds from Ziegler’s eye-opening 2015 book, After Roe: The Lost History of the Abortion Debate. But that moment of possibility was fleeting: “By the early 1980s, these middle ground solutions had come to seem politically impossible” (209). In Ziegler’s view, the culprit was neither Roe nor rights. Instead, it “reflected factors beyond the Court’s decision, including political party realignment and the rise of the Religious Right and the New Right.” Moreover, the Court’s doctrinal shift to “undue burden” analysis—which involved balancing the costs and benefits of abortion, and which moved the battleground from absolute protection or prohibition to incremental restrictions on access and funding—only exacerbated polarization. “The recent history of the abortion conflict gives us reason to be deeply skeptical of claims that overturning Roe will make the abortion battle less polarized,” Ziegler concludes.

Ziegler’s thesis is smart and provocative, if not entirely convincing. To begin with, Roe’s detractors have blamed the Court not simply for focusing on rights claims (though they have certainly criticized the particular privacy-based formulation it adopted), but for usurping the legislative process. Given that the debate over abortion regulation since Roe has remained in the courts and on constitutional terrain, Ziegler’s evaluation of the shift to policy arguments is not fully responsive to the counterfactual of judicial deference to state legislatures. What I want to explore here, though, is a different line of critique. Ziegler’s account appears to collapse the rights-policy distinction with opposing attitudes toward absolutism and incrementalism. Those who championed a fetal right to life or an unfettered right of women to choose were “absolutists,” on her telling, while those who pursued policy rationales were “incrementalists” or “pragmatists.” But rights claims can also be incrementalist. And speaking pragmatically, they can also be incredibly effective. Indeed, even as the antiabortion movement suspended its early efforts to inscribe a fetal right to life into the constitution (through judicial interpretation or constitutional amendment), it never gave up on a strong form of constitutional rights-claiming. It simply shifted to a different bucket of rights: rights to the free exercise of religion and freedom of speech. It pursued in particular a right to influence the political process through campaign spending and the election of sympathetic judges—an effort which attracted broader support than the right to life in the short term and which, aggressively implemented, had the potential to manufacture a new constitutional consensus on abortion in the long term. In my view, Ziegler is correct to reject the argument that Roe’s rights framework single-handedly undermined the possibility for durable and meaningful access to abortion, secured through the legislative process. But I think she’s too quick to reject the polarizing role that the judicial enforcement of constitutional rights claims has played. Roe’s critics, I want to suggest, have been blaming the wrong rights.

Amend: The Fight For America

Gerard N. Magliocca

Netflix is releasing a new six-part documentary on the Fourteenth Amendment that will air on February 17th. I'm proud to say that I played a small part in this project. And I'm excited by the prospect that public awareness of the Fourteenth Amendment might be increased through this film. Here is the trailer.

Socialists for Capitalism

Andrew Koppelman

Socialism’s purpose is assuring everyone the resources to live a decent life. Because we should all want that, we should all be socialists. The most dependable means for delivering those resources, however, is a capitalist economy, supplemented (as, in America, it has not been lately) by an array of state interventions that assure everyone an adequate share of the wealth. So today’s socialists should also be capitalists. Confused? That is because the word “socialism” has too many meanings to be useful. Stop using it.

The Benefits and Burdens of Mary Ziegler’s Account of Abortion Law

Guest Blogger

For the Symposium on Mary Ziegler, Abortion and the Law in America: Roe v. Wade to the Present (Cambridge University Press, 2020).

Linda Greenhouse

            While this is Mary Ziegler’s third book about abortion (following After Roe: The Lost History of the Abortion Debate, Harvard 2015, and Beyond Abortion: Roe v. Wade and the Fight for Privacy, Harvard 2018), what it most resembles is a book published before Professor Ziegler was even in high school – a measure of the longevity of the abortion debate and of scholars’ efforts to understand it. That book is David J. Garrow’s 981-page Liberty and Sexuality: The Right to Privacy and the Making of Roe v. Wade (MacMillan, 1994).[1] In my comparison lies both a compliment and a critique.

            First, the compliment. Ziegler’s post-Roe account matches Garrow’s pre-Roe narrative in its granular comprehensiveness (while at one-third the length). Both authors interviewed everyone who was still alive and who might conceivably have something to say, and both unearthed and consulted a breathtaking array of primary sources. In my own work, I’ve gone back repeatedly to Liberty and Sexuality.  Future scholars of the post-Roe period will undoubtedly turn to Abortion and the Law in America and its 720 footnotes.

            But like Garrow’s book, Ziegler’s contains the vice of its virtues. Facts piled upon uninflected facts march across its pages, not only making for tough reading but crying out for some ordering principle, some suggestion of hierarchy. I’m guessing that Ziegler felt obliged to quote everyone generous enough to have given her an interview, with the result that numerous obscure characters and organizations are mentioned once or twice, never to be heard from again. It’s history as inventory.

How Coronavirus Disaster Relief Will Move Through Congress, Part I

David Super

      Barring a last-minute deal with Senate Republicans, congressional Democrats are taking steps to move a coronavirus relief bill quickly through Congress, relying only on their own votes.  The procedures they will follow are a bit arcane and likely to get misunderstood in some popular media accounts.  Accordingly, some explanation seems worthwhile.  This post will cover the first half of the process:  passage of a budget resolution.  A subsequent post will explain the actual enactment of a coronavirus relief bill. 

     The device Democrats will use is “budget reconciliation.”  Originally designed to ease passage of unpopular deficit reduction measures, Republicans long ago persuaded the Senate parliamentarian that its expedited, filibuster-proof procedures should be available for deficit-increasing legislation.  Most recently, Republicans increased the deficit $1.9 trillion over ten years when they pushed the 2017 tax law through under reconciliation procedures.  Reconciliation procedures are skewed somewhat toward deficit reduction, but a determined majority can overcome that tilt to pass legislation that raises the deficit.

The Right to Abortion and the Bush-Trump Federal Courts

Guest Blogger

Balkinization Symposium on Mary Ziegler, Abortion and the Law in America: Roe v. Wade to the Present

JB

Gender Equality Back on the Agenda: the White House Gender Policy Council

Linda McClain

In a steady stream of executive orders and policy proposals, President Biden has taken steps to undo some of the damage done by the Trump Administration and to declare the values and priorities of the new Biden/Harris Administration. Fortunately, gender equality is among those priorities. On January 19, the day before their inauguration, President-elect Biden and Vice President-elect Kamala Harris announced the creation of a White House Gender Policy Council, co-chaired by Jennifer Klein, chief strategy and policy officer of TIME’s UP, and Julissa Reynosa, incoming assistant to President Biden and chief of staff to Dr. Jill Biden (and who also served in the Obama Administration). The Council is, in effect, a reboot of the White House Council on Women and Girls, created by the Obama-Biden administration in March 2009 but  disbanded by the Trump Administration in 2017.  In announcing the Gender Policy Council, President-elect Biden stated: “The work of this Council is going to be critical to ensuring we build our nation back better by getting closer to equality for women and to the full inclusion of women in our economy and our society.” The Council’s purpose, he announced, would be to help guide and coordinate government policy that impacts women and girls across a wide range of issues, including economic security, health care, racial justice, and gender-based violence. Vice President-elect Kamala Harris elaborated: “All Americans deserve a fair shot to get ahead, including women whose voices have not always been heard.” She declared her eagerness to work with the Council “to address the challenges facing women and girls, and build a nation that is more equal and just.” The establishment of the Gender Policy Council is a vital step after the Trump Administration’s unrelenting hostility to gender equality and to women’s rights. Significantly, the Council seems likely to approach gender equality and the category “women” in an inclusive and intersectional way, attentive to problems of equity and racial justice. The Council appears to be one critical part of the Biden/Harris Administration’s broader “equity agenda,” evident in executive orders on advancing racial equity, equity for other “underserved communities,” and LGBTQ+ rights. As this new Council begins its work, it is worth considering some parallels to the earlier White House Council on Women and Girls as well as some differences.

The Trump Presidency, Racial Realignment, and the Future of Constitutional Norms

Neil Siegel

The relationship between racial conflict and compliance with constitutional norms (or conventions) appears to be under-studied by U.S. constitutional law scholars. At least part of the explanation is that constitutional law scholars who study such norms tend to focus on the separation of powers, not racial equality. I recently posted to SSRN a new paper in which I link the degradation of constitutional norms in the contemporary United States not primarily to the behavior and influence of Donald Trump, but to long-term processes of racial realignment between the Democratic and Republican Parties that began in the late 1930s and early 1940s (not the 1960s), and that contributed significantly to the rise in asymmetric partisan polarization and mutual animosity beginning decades later. 

Here is the Abstract:

This chapter in a forthcoming volume, Amending America’s Unwritten Constitution (Cambridge University Press) (Richard Albert, Yaniv Roznai, & Ryan C. Williams eds., forthcoming 2021), asks into the likely implications of the Trump Presidency for the future sustainability of constitutional norms in the United States. It observes that what counts as a persuasive answer to that question turns primarily on why politicians’ respect for constitutional norms has been declining, and it argues that President Donald Trump is more of an effect (and a symptom) than a cause of the decline. Specifically, he is more of an effect than a cause of larger racial and cultural changes in American society that are causing Republican voters and politicians to perceive an existential threat to their continued political and cultural power—and, relatedly, to deny the legitimacy of their political opponents. As illustrated by the conduct of Republicans in Congress and statehouses, it is very unlikely that Republican politicians will respect constitutional norms when they deem so much to be at stake in each election and significant governmental decision. Moreover, Democratic politicians, now that they fully control the political branches, may begin a campaign of retaliation that will include violations of norms.  

State Enforcement of Section Three

Gerard N. Magliocca

One question people are asking me is whether the states can enforce Section Three of the Fourteenth Amendment. The answer is yes. Thus, even if Congress does nothing, Section Three claims will be raised over the next few years, including against the former President if he decides to run again. 

Why do I say that states can enforce Section Three? In Griffin's Case, Chief Justice Chase held that Section Three was not self-executing and that Congress needed to create enforcement authority and a process for adjudicating any claims. But he said that about Virginia, which was an unreconstructed state at that time. In other words, there was no recognized state authority there that could enforce Section Three. His holding, therefore, does not exclude a normal state from enforcing Section Three.

States regularly enforce the Federal Constitution''s eligibility requirements for ballot access. The trouble is that state law is probably inconsistent with respect to Section Three. Here's what I mean. Suppose a state statute says that a candidate for the House of Representatives must meet all of the eligibility requirements in the Federal Constitution for ballot access. Can Section Three be viewed as an eligibility requirement? Yes it can, though the point is contestable. Thus, a state Secretary of State enforcing the Constitution and state law would be within her authority to deny ballot access to someone on Section Three grounds. The candidate excluded could then challenge that determination in the courts. But some state election laws probably refer only to the eligibility requirements for the House of Representatives listed in Article One, Section Two. Why? Because until a few weeks ago nobody gave any thought to Section Three of the Fourteenth Amendment. In that kind of state, the Secretary of State may lack the authority to enforce Section Three unless state law is changed. (One would think that some states will update their statutes to make a specific reference to Section Three, but who knows.)

Where does this leave us? Some states can enforce Section Three and some arguably cannot. Some states will enforce Section Three in a partisan way and others not. Some states will limit standing for those who want to challenge a determination that someone is eligible to run notwithstanding Section Three. This may mean that some of those determinations will be, in practice, unreviewable. And so on.

At the presidential level, this haphazard system will be a disaster. If the former President decides to run, some state Secretaries of State will say that he is eligible and others will say that he is not. He could challenge an exclusion, but it's not clear who could challenge his inclusion. Maybe, though, the former President will not challenge his exclusion in a state that is small or that he thinks he won't win anyway. (Blue states are obviously more likely to say that the former President is ineligible.) This could lead to a circumstance like 1860, where Lincoln was elected even though he was not on the ballot in many states. Or it could mean that only person with standing to challenge the former President's inclusion on a ballot would be his Democratic opponent, with a lawsuit decided in the Supreme Court during the election year.

Accordingly, the question for Congress is not whether Section Three of the Fourteenth Amendment will be an issue in some upcoming elections. It will be. The question is whether will want an orderly process to address these claims (set up by Congress) or a disorderly one (run state by state).   

UPDATE: As I indicated in a prior post, there are examples of states enforcing Section Three after 1868, though those actions were all against officeholders rather than candidates.

A Pardon Argument for D.C. Statehood

Ian Ayres

In an oped today's Los Angeles Times, I explore a "police power" argument for D.C. statehood.  There is an important difference between a sovereign and a supplicant when it comes to calling out the national guard.   

The aftermath of attempted insurrection suggests a second rationale for statehood that might be called the "pardon abuse" rationale.  Members of the mob openly requested that Trump pardon them before leaving office and the Justice Department pardon guidelines explicitly say that “the President's pardon power extends to convictions adjudicated in the Superior Court of the District of Columbia” – which means that the President can pardon crimes committed in D.C. that would be unpardonable state crimes if the District were a state.  An advantage of dual federal and state sovereignty over a physical territory is that an unjustified pardon by one executive often does not immunize the pardoned person from being prosecuted by the other sovereign.

Reply to the Electoral College Symposium

Guest Blogger

For the Balkinization Symposium on  Alexander Keyssar, Why Do We Still Have the Electoral College? (Harvard University Press, 2020), and Jesse Wegman, Let the People Pick the President: The Case for Abolishing the Electoral College (St. Martin's Press, 2020).

Jesse Wegman

I hope you will forgive my extremely belated response to this excellent and thought-provoking symposium. I read the contributions when they were published, and I intended to write my response immediately. At the latest, I thought, I would write immediately after Election Day, when the Electoral College would no longer be the issue of the day.

Alas.

As the past few months of absurdity, instability and violence have unspooled, I’ve been alternately horrified and gratified that the Electoral College stayed at the center of the national debate for so long — giving Americans a better opportunity to absorb the depth of its complexities, its inequities and, especially this year, its vulnerabilities to mischief-making.

And so while it’s hard to take pleasure in any sequence of events that resulted in a loss of life, I do feel like the nation had a unique opportunity to give extended consideration to a topic that so often suffers from only a brief quadrennial flurry of feeling.