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.
Read more »

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.

Michael McConnell on Washington v. Trump

Jason Mazzone

The bulk of commentary from legal academics on President Trump's Executive Order concerning admission of non-citizens into the United States has involved creative advocacy rather than useful analysis. Michael McConnell's new column is a very welcome exception. Its careful, balanced, cool-headed discussion makes it the best thing written so far on the complex legal and political issues. Essential reading.

Balkinization Twitter Feed is at @BzationBlog


Our twitter feed is now live at @BzationBlog.

An anonymous fan previously set up a feed at @Balkinization, which we have no control over. It stopped working in October 2016.

The new feed @BzationBlog, has been up for several days and seems to be working just fine.

Please feel free to subscribe!

UPDATE: The previous owner of @Balkinization has graciously donated the Twitter account to our blog. We've updated the twitter feed and it should now tweet new posts from the blog.

Friday, February 10, 2017

Standing Up for “So-Called” Law

Guest Blogger

Martha Minow and Robert Post

On Saturday, President Trump mocked Judge James L. Robart, the federal district court judge who stayed the President’s Executive Order banning travel for individuals from seven predominantly Muslim countries. President Trump tweeted: “The opinion of this so-called judge, which essentially takes law-enforcement away from our country, is ridiculous and will be overturned!” He then expressed contempt for the deliberations of the three-member appellate court convened to review Robart’s order, calling the legal argument “disgraceful,” and remarking that a “bad high school student would understand this.” Why should it matter if our President openly disrespects courts and legal processes?

Some might say, the president should be permitted to disagree with court decisions, as have other presidents.  But President Trump does not merely disagree with a court decision; he disparages the very judicial institutions that are in the process of reviewing his executive order. 

This disrespect is part and parcel of President Trump’s general orientation.  His well-known instinct is to attack anyone who calls him to account — members of Congress, scientists, the civil service, competitors, the media. President Trump seems to divide  the world between friends and enemies.  His outlook is like that theorized by the German philosopher Carl Schmitt, who believed that politics was an existential struggle for survival requiring us to destroy those who oppose us.  

President Trump’s recent Executive Order was drafted to appeal to his supporters during the campaign, to whom Trump had promised a Muslim travel ban. Released without vetting by federal agencies with relevant legal expertise — Homeland Security, Defense, State, Justice -- the Order seemed designed to maximize political impact and minimize legal restraints of craft and professionalism. The legal infelicities of the Order show haste and lack of care.  It produced confusion and widespread heartbreak.  More than 100,000 people have been affected by the administrations' unpublicized revocation of already-granted visas. 

As a candidate, Trump had promised a ban on Muslim immigrants.  A travel ban explicitly based on religion would have violated sacred American traditions protecting religious freedom and nondiscrimination.  In crafting his Executive Order to invoke such a ban, the President threatened to undermine those traditions, feeding a “clash of civilizations” narrative used by Islamic radicals to recruit those, including disaffected American citizens, who would attack this country. 

Why would President Trump nourish such a narrative, which is likely counterproductive and dangerous?  Because it is consistent with a view of the world that sharply distinguishes between friends and enemies. Once unleashed, such a view is hard to cabin. The list of enemies keeps expanding.  It is no coincidence that reports of hate crimes, of anti-Semitism and anti-Muslim vandalism, are on the rise.

We are deans of respected law schools. We have dedicated our professional lives to the rule of law and to the proposition that law appeals to reason to override violence and hostility.

Law respects disagreement.  It patiently considers evidence and advocacy.  It listens carefully to the views of all. Each person--not just each citizen-- is equal before the law.  Created in ancient times to terminate endless cycles of vengeance and retribution, law substitutes official, publicly justified sanctions for animosity and enmity.

The rule of law is incompatible with a world that is crisply divided between friends and enemies.  Legal processes strengthen what we have in common. To attack legal institutions is to attack what holds us together.

That is why it matters when the President of the United States mocks federal courts. When he attacks appellate deliberations as disgraceful, the president undermines the oath that he swore to “preserve, protect, and defend” the Constitution of the United States. It is inconsistent with that oath to attack judges, legal procedures, and the rule of law. The President’s own nominee for the Supreme Court, Judge Neil Gorsuch, has called Trump’s attacks on courts “disheartening” and “demoralizing.”

When the nation’s most powerful office is used to intimidate the institutions of law that have maintained American stability and prosperity since the founding of the Republic, it is time for all who care about this nation to worry. President Trump’s attack on the “so-called” Judge Robart and his “ridiculous” order, his belittlement of appellate judicial argument as “disgraceful,” should concern all who care about the rule of law. We must be vigilant to preserve what makes America precious: the thirst for freedom and fairness, the demands of responsibility and cooperation, the allegiance to law that somehow makes e pluribus unum. Courts and legal institutions are essential to the realization of these many virtues.

If we are to sustain the rule of law, it must not be the concern merely of lawyers. We must all defend it, passionately and whole-heartedly. This moment is not fundamentally about Trump. It is about all of us.

Martha Minow is Morgan and Helen Chu Dean and Professor of Law at Harvard Law School. You can reach her by e-mail at minow at

Robert C. Post is Dean and Sol & Lillian Goldman Professor of Law at Yale Law School. You can reach him by e-mail at at

Why the Ninth Circuit's Ruling on Trump's Travel Ban EO is So Important

Jonathan Hafetz

On Thursday, the U.S. Court of Appeals for the Ninth Circuit issued its per curiam ruling in Washington v. Trump denying the government's request to stay the district court's order enjoining provisions of President Trump's Executive Order temporarily suspending travel to the United States for refugees and various other noncitizens (including legal permanent residents and visa holders).   In short, the Ninth Circuit held that the states (Washington and Minnesota) had standing and met the requirements for a preliminary injunction (styled a temporary restraining order in the district court).

I've previously written about the legal challenges here and here, and there will be much more to say about the Court's legal analysis, especially since this is the first appellate ruling on the travel ban.  But, in my view, the most important aspect of the court's ruling in this highly profile case is that it was unanimous.

The underlying legal issues are undoubtedly important, raising questions about, among other things, the scope and meaning of the plenary power doctrine, the due process rights of noncitizens both at and outside U.S. borders, and the application of constitutional protections against religious and nationality discrimination to restrictions on immigration.  But President Trump, from his reckless implementation of the Executive Order to his flagrant attacks on the integrity of federal judges hearing these challenges, has transformed the case into an early--and critical--showdown over the independence of the judiciary in the United States.  The order not only cites landmark separation of powers cases-- from Milligan to Boumediene -- that reinforce the judiciary's constitutional role and reject the near-complete deference to the executive the Trump administration is demanding.  But the order also makes it more difficult for Trump to bash an individual judge, as he has repeatedly done, because it is unanimous and unsigned.  (Trump's post-ruling Tweet was, as usual, inflammatory, but lacked the kind of personalized and vitriolic intimidation that is his trademark).

During oral argument, the panel appeared divided, at least in part.  While all three judges seemed to agree that the order violated the due process rights of legal permanent residents, one judge (Judge Clifton) suggested that the scope of the district court's order extended too broadly and seemed skeptical of the state's anti-discrimination claims. (The other two judges--Canby and Friedland--appeared poised to affirm the district court's order in full).  Maybe Judge Clifton changed his mind.  But more likely he and his fellow panelists felt it sufficiently important to issue a unanimous per curiam order that would be more difficult for Trump to attack (not to mention challenge in the Supreme Court).  And, I suspect, the reason the judges felt this way is that they recognize the real and grave threat Trump poses to the foundations of the constitutional order.

There will surely be more heated battles over executive power in the days to come, both in the travel ban litigation and other cases.  But the Ninth Circuit's decision will remain an important moment in the defense of judicial independence.

Thursday, February 09, 2017

Will the United States Survive the 2016 Election: A continuing series

Sandy Levinson

A Republican member of Congress has suggested that the behavior of oppositional Democrats is reminiscent of pre-1860 America.  As I have suggested earlier, along with recommending David Armitage's just published book on the history of civil war as a concept, the country is indeed increasingly in a psychological situation that suggests the possibility of civil war.  When "polarization" becomes active fear and even hatred of the domestic Other, then it is hard to see how "a more perfect Union" or "domestic Tranquility" can easily be preserved.  I find it wholly unsurprising, therefore, and indeed have also suggested this earlier, that secessionist movements that have been treated basically as a joke (or dismissed as simply crazy) may be taking on a genuine political valence in California.  One thing that can be said in favor of secession is that, at least on occasion, it is a mechanism for peaceful separation.  See, e.g., Norway's separation from Sweden in 1905 or Slovakia's divorce from Czechoslovakia (or, for that matter, the usually ignored peaceful secession of Slovenia from Yugoslavia).  Once the "mystic chords of memory" fade, as is true of marriages where early infatuation develops into sullen resentment and then an active desire to leave a relationship of what divorce law used to call "irreconcilable conflict," why not accept dissolution?

But those fearing a more "genuine" civil war might pay careful attention to what is occurring in Phoenix, Arizona, as described in the following excerpt from the New York Times account:

PHOENIX — For eight years, Guadalupe García de Rayos had checked in at the federal Immigration and Customs Enforcement office here, a requirement since she was caught using a fake Social Security number during a raid in 2008 at a water park where she worked.
Every year since then, she has walked in and out of the meetings after a brief review of her case and some questions.
But not this year.
On Wednesday, immigration agents arrested Ms. Rayos, 35, and began procedures to send her back to Mexico, a country she has not seen since she left it 21 years ago.
As a van carrying Ms. Rayos left the ICE building, protesters were waiting. They surrounded it, chanting, “Liberation, not deportation.” Her daughter, Jacqueline, joined in, holding a sign that read, “Not one more deportation.” One man, Manuel Saldana, tied himself to one of the van’s front wheels and said, “I’m going to stay here as long as it takes.”
Soon, police officers in helmets had surrounded Mr. Saldana. They cut off the ties holding him to the tire and rounded up at least six others who were blocking the front and back of the van, arresting them all. The driver quickly put the van in reverse and rolled back into the building.

Many discrete events can be said to have precipitated the outbreak of the American Civil War, but surely the Southern insistence on enforcing the Fugitive Slave Law and the rendition, for example, of Anthony Burns through the streets of Boston, was one of them.  I have little doubt that demonstrations of solidarity for people like Ms. Garcia de Rayos or for the victims of Donald Trump's cruel and bigoted travel ban (putting questions of its constitutionality entirely to one side) will ultimately lead to some incident of genuine violence, whether from beleagured police who will claim, perhaps legitimately, that they feared for their own safety, or from angry demonstrators opposing the what they believe to be the (undoubtedly) cruel and morally indefensible policies of the US government.  (One cannot rule out the possibility of provocateurs whose role will be to provide the violence that will justify further crackdowns by the Trump-Bannon administration.)  I'm certainly not advocating violence, largely, I must confess, for prudential reasons.  Violence is unlikely, as an empirical matter, to be useful as an actual means of resisting what we fear from a Trump-Bannon presidency.  (See, e.g., the article by David Frum on how Trump and Bannon, with the complicity of spineless Republicans eager to cut taxes, could establish a true autocracy.  From, incidentally, is another conservative who deserves the admiration of anyone appalled by Trump.)  However, simply as an observer of American politics (including the ubiquity of guns, one of whose purposes, after all, is to be able to defend against an oppressive or tyrannical government), it doesn't seem to be a stretch to say that we are indeed in the most perilous situation as a country since 1860 and that the equivalent of a Fort Sumter incident is at least as likely as the odds of the Patriots coming back from their deficit this past Sunday, the Cubs and Cavaliers engaging in their own come-from-behind efforts, and, of course, Donald Trump willing the presidency.

I won't bother repeating my screeds about the degree to which our Constitution has made its own contribution to getting us into this mess (as was even more true in 1860)  It is worth noting that one commonality between then and now is the election of a minority "uncompromising" President (with regard to extending slavery into the territories for Lincoln and, it appears so far at least, everything with regard to the 45th President); in both cases, of course, the electoral college is the explanation.  

I'm not in the least interested in hearing any of the predictable discussants offer attributions of blame as to whether Democrats or Republicans are worse, at present, with regard to creating the atmospherics (and realities) of contemporary politics.  What I am interested in reading, even from the usual suspects, is whether they agree or disagree that the survival of the country might literally be at stake.  If you believe that I'm simply being too apocalyptic, I'd be interested (and gratified) to know why.  Remember also, I'm not at all interested in whether you personally will be taking up arms or even putting yourself in potential danger by engaging in solidarity demonstrations with those the US deems deportable undesirables.  I certainly will not be doing the former, though I hope I will have the integrity to do the latter.  I am interested only in whether you agree that there is a genuine danger that something amiss will happen that will take the level of polarization to new heights (or depths) and trigger something that might be accurately described as "civil war."

Wednesday, February 08, 2017

The difference between 20th and 21st century consumer protection


The problem of 20th century consumer protection: A coke bottle explodes in your face.
The problem of 21st century consumer protection: Your coke bottle is spying on you.

The Deference Arguments

Deborah Pearlstein

In oral arguments before the Ninth Circuit Court of Appeals yesterday, the Government devoted as large a chunk of time as it was able to the claim (in various forms) that the President was entitled to broad deference on the determination whether it is necessary in the interest of national security to suspend the entry of the class of foreign nationals named in his Executive Order.  It is a familiar executive branch argument in cases involving foreign affairs and (broadly speaking) takes two forms here: (1) the statute granting the President the authority to suspend the entry of particular aliens gives the President total discretion in deciding which classes of aliens to exclude; and (2) even if the statute did not (or should not be construed to) grant the President such discretion, constitutional separation of powers principles requires the courts to defer to executive judgments of this nature.  Neither argument is especially persuasive here. Let’s take each in turn.

The statute authorizing the executive order here is broad indeed, providing: “Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.” (8 U.S.C. § 1182(f)) The text requires the involvement of no government actors besides the President personally, and no requirement that the President consult or consider anything particular other than his own assessment of “the interests of the United States.” But it would raise a significant constitutional question for the statute to be read to mean that there are absolutely no restrictions on this statutory discretion.  For one thing, as I take it the government would concede, the President could not exercise this authority in a way that violates some affirmative prohibition of the Constitution – whether the Establishment Clause or any other.  For reasons I’ve explained in an earlier post, there are of course significant questions in this case whether those affected by this order have rights at all under the Constitution. But where those constitutional rights are at stake (as was most clearly the case for the lawful permanent U.S. residents initially impacted by the executive order), the statute could not be read to allow what the Constitution prohibits.  Courts must thus be able to inquire into the exercise of executive discretion under the statute at least far enough to determine whether the executive order was constitutional or not. And because some of the constitutional claims in this case (particularly claims about an intent to discrimination against one religion) require consideration of motive, the statute must be read to allow some inquiry into the President’s reasons why he believes the entry of the excluded aliens was detrimental to the United States – reasons that, if unconstitutional in nature, are entitled to no deference at all.

What about the broader argument in favor of deference? That is, for example, even if the statute must be read to allow some minimal inquiry into why the President acted as he did – at least as far as to assess the absence of unconstitutional motive – the President is entitled to something like the benefit of the doubt, or need produce no more than one minimally rational reason (or “facially legitimate, bona fide reason”) – for why he selected these groups of aliens at this time.  More broadly still, the Government suggests in its brief (as other executives certainly have in the past), the President is constitutionally entitled to deference on such questions of national security, lest the courts intrude on parts of the power the Constitution commits to the executive in the exercise of his authority under Article II.  At risk of oversimplifying an area of thought that has been the topic of at a minimum Federalist Papers, court cases, books, and (easily) thousands of scholarly articles over the past two centuries, there are in essence three reasons why the executive has tended to make the argument that it is entitled to deference in cases such as these: (1) courts have always done it; (2) the executive has greater expertise and institutional competence than the courts in this area (in the form of both access to information and experiential/analytical skill); (3) the (elected) President is more politically accountable than the (unelected) courts, and is therefore in a better (more democratic) position to make fundamentally political judgments about our country’s relationship with other countries and their nationals. Again, let’s take each in turn. (And for a far longer treatment of many of these issues, see some older work of mine, e.g., here.) 

It may be that you went to law school at a time when professors still said, ‘courts always defer to the executive on matters of national security.’ If that was ever the case (and it was always a dicey claim), it is manifestly not so today.  The Supreme Court (in the voice of justices of both political parties) has, in the past 15 years, for example, rejected the President’s argument a statute authorizing him to deviate from ordinary court martial rules in military commission trials whenever he thought the application of ordinary rules not “practicable” gave him unreviewable discretion to determine “practicability” (Hamdan v. Rumsfeld); rejected the executive’s argument that the President’s power to enter into agreements with foreign nations included the power to instruct state courts to enforce those agreements (Medellin v. Texas); and rejected (unanimously) the continued vitality of much-cited dicta from the Court’s 1934’s United States v. Curtiss-Wright that the President has unique, essentially unbounded discretion in matters of foreign affairs (Zivotofsky v. Kerry).  As Chief Justice Roberts put it in Zivotofsky:  “In support of his submission that the President has broad, undefined powers over foreign affairs, the Secretary quotes [Curtiss-Wright], which described the President as ‘the sole organ of the federal government in the field of international relations.’ This Court declines to acknowledge that unbounded power….” None of this is to say the courts never defer to the President on particular questions of national security.  Quite the contrary.  It is, rather, to say that mere reference to the general role of the courts here will not be persuasive; it depends entirely on the particular case.

Second, to the extent the President’s argument in favor of deference is based on a claim of knowledge and/or expertise, the Court has recognized in a variety of contexts that it is, in the modern era, a claim about the knowledge and expertise of the knowledge and expertise of the executive branch as a whole – knowledge and expertise housed in this case principally in executive agencies including the Department of Defense, State, Homeland Security, and the agencies of the U.S. intelligence community. (Thus, for instance, the Supreme Court declined to defer to the Environmental Protection Agency’s argument (in 2007’s Massachusetts v. EPA) that that regulating greenhouse gases might impair the President's ability to negotiate with ‘key developing nations’ to reduce emissions’ on the grounds that the EPA had “made no showing that it issued the ruling in question here after consultation with the State Department.”) In other words, the Court has increasingly recognized what reason suggests should be true – if one accepts the value of knowledge and expertise as relevant in informing the construction and application of law, one might want to have some at least process-based indication that those with actual knowledge and expertise have been consulted in the law’s construction and application.  As a variety of news reports suggest, and as the development of a record might help to establish, it is entirely unclear whether and to what extent those agencies were consulted before the fact here.

Finally on the notion that the President’s political accountability puts him in a better position than the courts to answer questions of who should be omitted and who not. Surely there is something (more than something, as I’ve indicated in an earlier post) to the argument that the political branches (as a matter of text and structural competence) have a particularly important role to play in determining questions of who can and should be a part of the polity (even temporarily).  But beyond the very important questions of precedent and democratic philosophy this view raises, the argument that there are independent political accountability advantages that redound to the President under these circumstances are particularly weak where, as here, the presidential action targets a population that is least politically able to hold elected officials to account.  Lawful permanent residents and other non-citizen residents of the United States – all of whom were at least initially encompassed by the terms of this order – cannot vote in national elections.  Indeed, they are subject to penalties – including deportation – if they do.  In any context but this one, one might imagine that it is precisely these circumstances that would lead the courts to claim advantage over the President.  He is not politically accountable to this population of constitutional rights holders at all.  It is in this context, where individual rights are at stake, the courts have always mattered most.

Sometimes The Judges Have the Butter

Gerard N. Magliocca

The President's comments about "so-called judge" who put a hold on the immigration executive order and the "disgraceful" stuff he heard in the Ninth Circuit's oral argument yesterday brings to mind the following story.  (Judge Gorsuch must tremble every time the President tweets these days.)

An arrogant politician goes to a restaurant for dinner (You can use John Kerry, Mitch McConnell, or anybody you don't like as the subject.)  He asks the waiter for some butter for his bread.  The waiter responds, "I'll get it for you as soon as I can, but the place is busy tonight and we are short-staffed."

Five minutes goes by and there is no butter on the table.  The politician sees the waiter and says, "Hey, I still have no butter. Do you know who I am?"

The waiter responds, "Well, do you know who I am?"

"Er . . . no."

"I'm the guy with the butter."

Sooner or later, the President will learn that berating the people with the butter doesn't get you butter. Unless, of course, he doesn't actually care whether he gets the butter and is simply putting on a dog-and-pony show for his supporters.

Tuesday, February 07, 2017

How to tell if you are in a constitutional crisis


Because Donald Trump is very unpopular, and because he is doing things that his opponents consider outrageous, his critics have begun to use the term "constitutional crisis."  Sandy Levinson and I wrote an article about constitutional crises in 2009. What follows is a brief explanation of the term and why it is so likely to be misused.

A constitutional crisis occurs when there is a serious danger that the Constitution is about to fail at its central task. The central task of constitutions is to keep disagreement within the boundaries of ordinary politics rather than breaking down into anarchy, violence, or civil war.  To be sure, constitutions are also valuable because they protect civil liberties and divide and restrain power; but their first job is to keep the peace and make people struggle with each other within politics rather than outside of it.

Constitutional crises come in three types. In the first kind, politicians (or military officials) announce that they won't obey the Constitution. In our system of government, government officials are supposed to obey judicial orders specifically directed to them. (That is true even if they believe that the judge has interpreted the law incorrectly.) Therefore defying a direct judicial order would also be tantamount to precipitating a constitutional crisis. When government officials (or the military) publicly announce that they will no longer play by the rules of the Constitution, the Constitution has failed. Constitutional crises of this type are very rare in American history.

Second, the Constitution might fail because it keeps political actors from preventing a looming disaster. These situations are even rarer because political actors (and the courts) usually conclude that the Constitution allows them to escape disaster.

Third, a constitution might fail because lots of people refuse to obey it-- there are riots in the streets, states secede from the Union, the army refuses to obey civilian control, and so on.

When people are upset at what government officials have done, they often call these actions constitutional crises. However, most of these situations aren't really constitutional crises, because there is no real danger that the Constitution is about to break down.  The vast majority of uses of the term "constitutional crisis" are hyperbole.
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Monday, February 06, 2017

If Liberals Knew Themselves Better, Conservatives Might Like Them Better

Andrew Koppelman

The standard liberal positions on free speech, religious neutrality, and atheism all reflect their religious origins. Because American secular liberalism and American religious conservatism have a common ancestor, it is possible for liberals to describe aspirations that have more in common with the religious, and thus more rhetorical power, than the arguments that they now tend to offer.

I develop this argument in a new piece in the Lewis and Clark Law Review, available here.

Friday, February 03, 2017

Destroing the civil service: An essential step toward entrenching our constitutional dictatorship

Sandy Levinson

Philip Howard, a lawyer who hates lawyers, has published a piece in the Wall Street Journaltitled "The President's Right to Say 'You're "Fired.'"  (The article is behind a paywall, but the link is to another site that includes the relevant text.)  As one might expect from the title, it calls, basically, for the repeal of all existing civil service protection for federal workers in the name of the vaunted "unitary executive" and the tendentious reading of Article II that requires that the President be allowed to fire any and all federal employees he doesn't care for.  (To be fair to Howard, he does suggest that the existing system of protections, dating back to 1886, be replaced by a "new civil-service framework [that] is fair-minded and respectful."

I am hesitant to defend the current civil service system in each and every respect.  I am willing to believe that it should be marginally easier to get rid of some of our public employees.  But, of course, Howard is not talking about marginal improvements. And, equally obviously, he gussies up his hatred of America's hard-working bureaucrats, who are devoting their lives to public service, in the mantle of constitutional argument that ultimately gives the President (and minions like Steve Bannnon and Steven Miller, neither, of course, confirmed or otherwise subject to any congressional accountability, the kind of control over the administrative state that dictators yearn for.  To call Mr. Howard (whom I do not know) a "useful idiot" for the Trump would-be dictatorship is no doubt ungenerous and incendiary.  But anyone making such arguments in the age of the Trump-Bannon presidency should be aware of what the implications are of empowering this President (and his minions) at this time.  To take such an argument seriously, at this time with this President (and his minions) is not only to reject the Resistance, but, indeed, to join the most completely lamentably important authoritarian political movement in our entire history.  Vladimir Putin no doubt would agree with every sentence of Howard's screed--and might even accept the anodyne assurance that a "fair-minded and respectful" set of protections would be substituted for what now exists.  But, as Antonin Scalia might have put it, "Do not be fooled."  This is part of a systematic agenda to destroy the very possibility of a a professionalized civil service whose members would not spend their days quaking about the possibility of hearing "you're fired" from an ignorant sociopath like the current occupant of the White House  (at least when he chooses to remain in Washington rather than imposing enormous security costs on the good people of New York when he moves to his Versailles-like palace on Fifth Avenue.

Thursday, February 02, 2017

Oppose the President’s Refugee Order? Don’t Leave its Repeal Up to the Courts

Deborah Pearlstein

The President’s sweeping order last week suspending entry of millions of foreign nationals and refugees into the country sparked outrage from Democrats and Republicans alike.  In the chaotic first days of its implementation, lawyers and courts were on the front lines in mitigating some of the worst of its effects.  Yet while it is clear the President’s order raises a host of deep questions about its legality, it is far from clear any one of them is a certain win for challengers. 

Start with the basic legal question where the President gets the power to issue an order like this. It turns out to have a straightforward answer: Congress gave him the power in a law passed well before this administration, broadly authorizing the President to “suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants” whenever he finds their entry “would be detrimental to the interests of the United States.” (8 U.S.C. § 1182(f)) It is true that another law provides that no person may be discriminated against in the issuance of a visa on the basis of their “nationality, place of birth, or place of residence.” (8 U.S.C.§ 1152) There is a compelling argument that a court should read this anti-discrimination rule to limit the scope of the President’s power to suspend entries.  But there are also arguments government lawyers will try to leverage against such a reading – like the argument that there is a difference between awarding visas and suspending entrance. And different judges read statutes differently.

The arguments that the order violates one or another provision of the Constitution – the Due Process Clause, the Establishment Clause, or the Equal Protection Clause – likewise face serious hurdles.  While green card holders are certainly entitled to significant constitutional protection, the government has apparently pulled back from its earlier insistence that the order applies to that group of lawful U.S. residents.  All other non-citizens at the borders – especially those with no previous connection to the United States – must confront the Supreme Court’s 60-year-old understanding that because the power to exclude aliens is a “fundamental sovereign attribute exercised by the government’s political departments,” it is “largely immune from judicial control.” It was on this basis that the Court held in the 1953 case Shaughnessy v. United States ex rel. Mezei that non-citizens at the border were not protected by ordinary principles of due process.  Indeed, while non-citizens inside the United States are generally protected by the Constitution, non-citizens outside the United States traditionally are not. 

Here too, there are strong arguments that this old constitutional rule cannot be squared with either basic fairness or contemporary constitutional reality. The Court held in 2008’s Boumediene v. Bush that non-citizens detained by the United States in Guantanamo Bay, Cuba, had a constitutional right under the Suspension Clause to seek a writ of habeas corpus in U.S. courts. It would be a perverse constitution indeed that gave non-citizens detained in Cuba more procedural rights than non-citizens detained at JFK airport.  But the question remains entirely unsettled.

Even assuming all who are subject to the President’s order were entitled to full constitutional protection, their ability to succeed on the merits of their claims is far from clear.  While there is no doubt the Equal Protection Clause applies to the federal government (through the Fifth Amendment), and while it plainly prohibits laws that discriminate on the basis of race or gender (or certain other classifications to various degrees), the Court has not traditionally relied on the Clause to bar discrimination on the basis of religion.  Claims about religious discrimination are instead usually brought under the First Amendment’s provision that “Congress shall make no law respecting an establishment of religion.”  This claim is strong indeed.  The President’s order bans immigration from seven Muslim-majority countries, while at the same time establishing preferential treatment for refugees seeking asylum who are identified with “minority religions” in their country of origin.  Most damning, the President himself has said that the order was intended to give priority to Christians seeking asylum over Muslims. Such discrimination runs afoul of everything the framers of the Constitution were trying to accomplish in building a nation that not only respected but defended religious freedom and diversity.  If one could overcome the problem of constitutional protection for non-citizens, this argument should prevail in court.  It should.  But it may not.  The country has never seen an order quite like this before.  There is thus no foolproof precedent requiring that it be overturned.

There is, however, one foolproof way to ensure the President’s order in its current form does not stand.  And it lies with the body that gave the President the authority to issue it in the first place.  A growing, bipartisan group of congressional representatives have expressed concern about the order’s scope and effect.  And while Senator McConnell has proposed the matter be left to the courts to decide, it is not wise – and should not be easy – for Congress to avoid responsibility here.  At a minimum, it would be a serious strategic mistake for the many groups sprung up post-election to push back against the new administration not to focus some of their energies on demanding Congress act.

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