Balkinization  

Monday, February 12, 2018

Symposium: Civic Education in a Time of Upheaval

Sandy Levinson

That is the title of a symposium co-organized by myself and Meira Levinson, a professor at the Harvard Graduate School of Education, that will take place at the University of Texas Law School this coming Friday and Saturday.  Friday, February 16  It will begin on Friday morning with a "summit conference" of a number of editors of leading constitutional law casebooks,  The afternoon will begin a series of panels primarily organized by Meira that focuses more explicitly on the problems presented by trying to create given classroom narratives in significantly divided societies. There is no charge for attending and lunch will be served on Friday and Saturday to those in attendance.  Public school teachers can get continuing education credit (though the Texas Bar Association.)  All of the programs will be videoed and available, in relatively short order, online.  The focus of the gathering is not the presentation of traditional academic papers, but, rather, intense discussion among a variety of extremely accomplished people who have written about and dealt with the issues presented.  

You might also note that Saturday morning will include a session specifically on the book coathored by Cynthia and Sanford Levinson, Fault Lines in the Constitution.  The entire schedule is as follows:



8:30 – 9:00 Welcome by Dean Farnsworth and Setting the Stage by Sanford Levinson
9:00 – 12:15 On "Introducing" Constitutional Law--and the Casebooks We Use to Do That. A host of editors of leading casebooks on the US Constitution will address two central questions: 1. What aspects of the Constitution should American undergraduates and/or law students be “introduced” to in 2018, given the high unlikelihood that even the law students will actually "practice" constitutional law in any capacity other than citizens? 2. What do you see as the principal point(s) of your own casebook relative to whatever answer you gave to the first question?
Each person will make a short presentation, followed by presumably intense conversation including participation by the audience. There will be a brief break around 10:30
Panelists: Josh Blackman, Erwin Chemerinsky, Richard Fallon, Mark Graber, Gary Jacobsohn, Sanford Levinson,  Mark Tushnet  Present by video:  Sam Bray, Noah Feldman
Chair: Richard Albert
Location: Sheffield-Massey Room, with overflow in TNH 2.138

1:45-2:00 Introduction to the general topic of civic education (and the remaining panels): Meira Levinson

2:00 – 3:30 Historical Perspectives. As educators and citizens try to make sense of contemporary political and ideological divisions in the United States, it can be useful to see how educators and policy makers addressed profound division and civic upheaval in the past. This panel brings together historians of education to provide perspectives and insights into prior approaches to civic education in times of upheaval.
Panelists: Jarvis Givens, Julie Reuben, Jonathan Zimmerman
Chair: Lorraine Pangle
Location: Sheffield-Massey Room, with overflow in Francis Auditorium

3:50 – 5:35 Civic Education in Divided Societies. Partisanship in the United States is at higher levels than we’ve seen in decades, and increasingly tracks other divides such as education level, income, and place of residence. Not only are we more extreme in our beliefs, therefore, but we are also more likely to be disconnected from those who have different perspectives. We are not the only country to face profound civic division, however; nor is this the first time that the United States finds itself ideologically driven. This panel brings together scholars and educators who work around the globe in deeply divided countries.
Panelists: Michelle Bellino, Thea Abu El-Haj, Michael Karayanni, Adam Strom
Chair: Michael Stoff
Location: Sheffield-Massey Room, with overflow in Francis Auditorium


Saturday, February 17
9:00 – 10:30 Teaching Civic Contestation in Schools. How can and should educators teach controversial issues in schools? This is a perennial question, but one that has heightened salience in these unsettled times. What principles and practices should guide educators’ choices about what to include in the curriculum, and what to leave out as either “too hot to handle” or inappropriate to be treated as something open to debate? How have educators tried to protect themselves or their students when investigating contested topics, and what happens when things go wrong?
Panelists: Curtis Acosta, Dafney Blanca Dabach, Diana Hess
Chair: Randall Kennedy
Location: Eidman Courtroom

10:45 – 12:15 Fault Lines in the Constitution. To the extent that the Constitution is taught in middle schools and high schools today, focus is generally placed on two areas: (1) the genius of the Framers in creating a government of divided and balanced powers, and (2) the perfection of the rights accorded to citizens, particularly those embedded in the Bill of Rights. Such anodyne and uncritical approaches to our founding document, however, diminish students' civic capacities. As the panelists will explain, celebratory approaches to teaching the Constitution are both inadequate and inaccurate. Cynthia Levinson and Sanford Levinson, authors of Fault Lines in the Constitution: The Framers, Their Fights, and the Flaws that Affect Us Today, a book for young readers, explain an alternative perspective on the Constitution, focusing on the ways that the structures of our government contribute to dysfunctionalities in American political life. In addition, an educator will provide insights into ways to make civics education more complex and comprehensive.
Panelists: Cynthia Levinson, Sanford Levinson, Aaron Hull, Katherina Payne
Moderator: Meira Levinson
Location: Eidman Courtroom

1:30 – 3:00 Schools as Civic Actors. Civic education is traditionally thought of as a subject (like math or science), a set of pedagogies (such as in-class discussion or action civics), or extracurricular learning opportunities (such as student government or debate). But schools also educate civically by modeling civic values and engagement themselves as civic actors. This can prove challenging when teachers, administrators, students, and parents are divided about what their obligations should be. Should schools create “sanctuary campuses” intended to disrupt the school-to-deportation pipeline? How should they respond when students stage school walkouts over civic and political issues, or when students who merely repeat politicians’ statements run afoul of anti-bullying laws? This session will immerse participants in case study discussions about how educators and policy makers are addressing schools’ responsibilities as civic actors in times of upheaval.
Case leaders: Meira Levinson, Jacob Fay
Location: Eidman Courtroom

3:00 Summary comments and farewells: Sandy Levinson, Meira Levinson
Location: Eidman Courtroom
RSVP Here: https://goo.gl/forms/WDIX1DNo11XwqVD93
Note: Teachers can get Continuing Education credit through the State Bar of Texas.

Sunday, February 11, 2018

What's the Deal?

David Super


     With the media awash in stories claiming that this week’s budget deal is a dramatic turning point in fiscal policy, setting out what it does and does not do seems worthwhile. 

     From a fiscal point of view, the Democrats achieved a surprisingly large increase in non-defense discretionary spending, albeit starting from a very negative base.  For the current fiscal year and the one that starts this coming fall, the agreement would erase one of the two major rounds of reductions in defense and non-defense spending that Republicans extracted in the Budget Control Act of 2011.  The full implications will not be clear until Congress passes final spending legislation next month.

     A bit of background is necessary here.  Republicans forced President Obama and congressional Democrats to agree to the Budget Control Act as the price of their agreeing to raise the debt limit.  It dramatically lowered the annual ceilings on defense and non-defense discretionary appropriations for the next ten years.  It also established a bipartisan commission to find means of achieving further deficit reduction.  The Act provided that if the commission failed to agree on a plan for further deficit reduction, or if Congress failed to enact a commission recommendation, further deep across-the-board cuts would occur automatically.  This second round of reductions to the discretionary spending caps, known as sequestration, was to cut defense and non-defense spending to a roughly equal degree. 

     President Obama’s staff argued that the threat of defense spending being sequestered would force Republicans to agree to a balanced plan of tax increases and entitlement cuts to achieve the additional savings required to prevent sequestration.  In practice, Republicans held firm to their “no new taxes” mantra, and the commission deadlocked.  When sequestration took effect, considerable chaos ensued, including huge lines at airports for security screenings. 

     Instead of prompting Congress to revoke sequestration, as some had hoped, these problems only caused Congress to shift money around to avoid the highest-profile problems.  The result has been chronic underfunding of numerous governmental functions.  Administrators cut corners and took risky chances to function with inadequate funding; when the inevitable failures caught the public’s attention, they typically were attributed to incompetence or stupidity rather than chronic underfunding.  This enabled a new round of attacks on the Obama Administration in particular and government in general.  For example, with chronic underfunding having thinned the ranks of officials performing environmental assessments, Republicans and industry have complained (with little empirical support) that these reviews are holding up important projects and must be curtailed.  The real scandal of the attack in Benghazi was that protection for diplomats in war-torn areas had been cut back so severely that Ambassador Stevens could only do his job by gambling with his life. 

     The Budget Control Act’s defense cuts have been moderated consistently with “emergency” appropriations outside the caps for “Overseas Combat Operations (OCO)”.  In practice, the Pentagon has stretched the definition of what is needed to support our wars in Afghanistan and Iraq to supplement its basic operating budget.  Democrats have tried, with far less success, to achieve similar ends with proposals for “emergency” funding outside of the caps for various domestic crises. 

     The spending caps resulting from the Budget Control Act made annual appropriations bills all but impossible to enact.  The caps necessitated such low funding for domestic programs that Democrats did not want to be associated with these bills, and Republicans were uncomfortable taking sole blame for these unpopular cuts.  The House Republican Freedom Caucus and similar factions also refused to support appropriations bills, demanding ever-deeper cuts. 

     As a result, Congress has enacted a series of bipartisan agreements raising the discretionary spending caps for one or two years with the cost offset through cuts to entitlement programs and extensions of the Budget Control Act beyond its originally scheduled expiration.  This past week’s Bipartisan Budget Act of 2018 (Public Law No. 115-123) is the latest of these temporary cap-raising bills. 

     The Bipartisan Budget Act raises the caps on discretionary spending more during its two-year life than prior cap-raising agreements have.  The levels it sets for the caps fully eliminate the effects of the Budget Control Act’s sequestration cuts but not the Budget Control Act’s initial cuts to discretionary appropriations caps.  As a result, non-defense discretionary spending in the two years covered by this agreement will be 5.3% below 2010 levels adjusted for inflation and 11.0% below 2010 levels adjusted for inflation and population growth.  Previous cap-raising bills did significantly less. 

     Republicans demanded that the defense caps rise more than the non-defense caps; that did not happen to any great degree, although the OCO escape valve has made the defense caps much less onerous even before the legislation.  Republicans also demanded that the domestic spending increases, but not the defense ones, be offset with cuts to entitlement programs.  The final legislation includes a package of offsets that Republicans can claim pay for some of the non-defense spending and that Democrats can claim pay for part of both the defense and the non-defense increases.  Some of the offsets are real, some are less so, but none of them appear to be deeply destructive. 

     Left unanswered by this legislation is just how the additional spending will be allocated.  In the past, after raising the discretionary spending caps with the help of Democratic votes, Republican appropriators have shut Democrats out of the process of distributing these funds, allocating relatively little to Democrats high-priority programs, leading some to question whether the deals were worth it.  Having been burned in this manner before, Democrats surely obtained side deals about how the restored funding will be spent, but we will not see evidence of them until an omnibus appropriations act for the rest of the current fiscal year moves through Congress next month. 

     The Bipartisan Budget Act contains significant emergency funding for disaster-stricken areas, including Puerto Rico and the U.S. Virgin Islands.  This includes additional money to supplement the grossly inadequate Medicaid block grants for the island territories.  (This experience should provide a powerful warning of the dangers of proposals to block-grant other important programs nationwide.)  The Act also includes a relatively small amount of supplemental appropriations to respond to various problems, real and political, and renews funding for community health centers. 

     Finally, the Bipartisan Budget Act suspends the statutory debt limit for the remainder of this calendar year.  The debt limit serves no independent fiscal purpose and has long outlived whatever utility it might once have had.  Members of Congress who believe they can credibly threaten to refuse to raise it nonetheless have been attracted to it as a vehicle for extorting others who fear disastrous economic consequences if the limit is exceeded.  The Budget Control Act of 2011 shows just how powerful and enduring the fruits of such extortion can be. 

     Prior to the Bipartisan Budget Act, the federal government was due to breach the debt limit by mid-March.  Many or most Republicans were expected to oppose a free­standing debt limit bill, making it difficult for their leadership to bring such a bill to the floor.  Most Republicans would vote for a debt limit bill with severe spending cuts, but some would not even then and Democrats were unlikely to provide the necessary votes for such a package.  Rolling the debt limit in with legislation raising the appropriations caps offered Members of both parties a way to avoid a crisis while not casting a vote specifically on the debt limit. 

     The budget deal does not include any extension of Deferred Action for Childhood Arrivals (DACA).  With congressional Republicans split and the President continually increasing his demands for a DACA deal, congressional Democrats simply did not have the leverage to insist on its inclusion in this package.  Polling showed that much of the electorate opposed provoking a government shutdown over DACA.  Although Democratic leaders insisted that last month’s shutdown was over other issues, so many Democrats were demanding a shutdown over DACA that the media largely ignored leaders’ denials.  Presidents Clinton and Obama managed to trigger government shutdowns purportedly over one set of issues to gain leverage over a very different set of concerns.  But it is far easier for Administrations to control public perceptions in such crises than it is for congressional parties with many voices, especially those in the minority, to speak with a unified voice.  The Democrats may have means of forcing votes on DACA, but a government shutdown is not it. 

     The big picture is that this deal is relatively small potatoes substantively.  In particular, it is almost trivial relative to the massive tax cut legislation enacted late last year:  it increases the deficit far less and is largely limited to two fiscal years (and does not change the long-term baseline).  It also moves the nation’s finances part-way back toward historic levels, in contrast to the tax bill’s movement away from historical norms.  The commentators insisting that this legislation makes the Republicans the party of spiraling deficits are one bill too late.  

Friday, February 09, 2018

We the People, or We the Voters?

Joseph Fishkin

Our Constitution, as amended, requires that every ten years the federal government reallocate seats in the House of Representatives to the states “according to their respective numbers, counting the whole number of persons.”  This provision leaves little room for interpretation.  It is part of what my colleague Sandy Levinson calls the “constitution of settlement.”  But like much of the constitution of settlement, this provision settles certain questions while leaving other closely proximate ones unsettled.  The settled part is this: We do not apportion representatives to states on the basis of how many citizens, voting age citizens, eligible voters, or registered voters the state may have.  Instead we use total population.  Under our Constitution, for purposes of congressional apportionment, we count children, non-citizens, disenfranchised felons, and all other non-voters.  If you are living in a U.S. state, and you are a person rather than a tree, you count.

This makes a huge difference.  These days, the total population rule in the Constitution moves power within Congress in a distinctly Southwesterly direction, compared to where it would be if we didn’t count all those children and non-citizens.  According to my back of the envelope calculations, if we apportioned House seats by citizen voting age population (CVAP), my state of Texas would immediately lose four seats.  California would lose five.  Those seats would go instead to states with higher CVAP-to-total-population ratios, which is another way of saying states with fewer children and fewer immigrants—states like Pennsylvania and Montana.*  This will not happen.  Congressional apportionment by CVAP is a nativist pipe dream, unambiguously unconstitutional.

That much is settled.  But, the constitutional rule does not by its express terms settle anything else.  As a matter of political practice, and in the shadow of the constitutional rule, all U.S. states sensibly use total population, as well, for drawing congressional district lines within states—and also for their own state and local iterations of apportionment and redistricting.  But conservative policy entrepreneurs have begun to challenge this practice, beginning at the state and local level.  Ed Blum, the great conservative impact-litigation impresario, brought the case of Evenwel v. Abbott to the Supreme Court in 2016, challenging Texas’ use of total population for state legislative districting.  He lost, but in a way that did not entirely resolve the question of what would happen if he had a state or local government on his side.  The next logical move will be for some jurisdiction, in 2021, to attempt to use CVAP or some other less-than-total-population measure for apportionment, drawing districts with different numbers of people, but equal numbers of “voters.”**

The argument for counting voters instead of people gains its political salience from the increasing centrality of immigration to both Republican and Democratic party politics—and the increasingly clear sense that areas with lots of children and lots if immigrants support Democrats while older areas with fewer immigrants support Republicans.  But the argument gains its conceptual and legal plausibility from a different place: the strangely undertheorized nature of virtual representation—the representation of non-voters—in modern conceptions of democracy.  Or so I argue in a new essay just posted to ssrn on “Taking Virtual Representation Seriously”; I’ll say a little more about this point after the jump.

Meanwhile, consider a seemingly separate set of current controversies with common political roots.  Census population figures do not come out of the sky; it is Congress, and political appointees in the executive branch, who ultimately determine how we conduct the count.  What if the federal government redesigned its Census in a way deliberately calculated to skew the population numbers by increasing the already-substantial undercount of non-citizens?  Would there be any legal or constitutional recourse? As I write this, there is growing controversy about the Trump administration’s proposal to add a question to the Census asking whether you are a U.S. citizen.  The controversy has focused (rightly) on the question of whether adding this question will further increase the undercounting of immigrant communities, with potentially far-reaching consequences.

What has gotten much less attention is the fact that this Census question gambit is also a move in the Evenwel chess game.  It is an effort to change the Census itself in a way that aims to lay the groundwork, in terms of data, on which some bold jurisdiction will likely make its bid in 2021 to stop worrying about counting all the people, for purposes of representation, and instead count only the ones who can vote.  There are good reasons to believe this denies non-voters the equal protection of the laws.  But to see why that could be the case requires giving some thought to the role of virtual representation in our democratic system.  More after the jump.

Read more »

Wednesday, February 07, 2018

A Constitutional Role Morality for Presidents and Members of Congress

Neil Siegel

In the contemporary United States, the conduct of members of the political branches is generally regarded as more damaging to the American constitutional system than is the behavior of the federal courts. Yet constitutional law scholarship continues to do what it has done since at least the mid-twentieth century. It continues to focus primarily on judges and judging.

In a new article, I suggest that constitutional law scholarship should develop for presidents and members of Congress what it has long advanced for judges: a role morality that imposes normative limits on the exercise of official discretion over and above strictly legal limits. The article first grounds a role morality for elected officials of the federal government in two purposes of the U.S. Constitution whose vindication requires more than compliance with legal rules: (1) securing the American conception of democracy as collective self-governance, and (2) creating a reasonably well-functioning federal government. Given its close connection to those purposes, a role morality for presidents and members of Congress is appropriately described as constitutional, not merely political.

The article then tentatively proposes some rhetorical, procedural, and substantive components of constitutional role morality. They include a commitment to consult the political opposition before taking important actions and a rebuttable presumption in favor of moderation and compromise. The article also explains how different actors in the American constitutional system should execute their professional responsibilities if they are to make it more, rather than less, likely that such a role morality will eventually be adopted and maintained.

A final part anticipates objections, including the obvious one that the vision advanced in the article faces significant implementation problems.


Sunday, February 04, 2018

The Hearings Congress Should Hold After the Nunes Memo’s Release

Deborah Pearlstein

You may be forgiven for missing the news that the Trump Administration on Friday released its Nuclear Posture Review, the statutorily required report the Defense Department submits to Congress every four years establishing U.S. nuclear policy until the next report.  The report, among other things, calls for the development of new low-yield nuclear weapons (weapons conceived by their advocates as more readily suited toward a limited, battlefield-type context); and it effectively lowers the threshold for what might provoke a U.S. nuclear strike by including cyberattacks in the list of potentially strategic threats.  Its release caps a week that saw Trump’s candidate for U.S. Ambassador to South Korea (yes, the post is still open more than a year into the presidency) – a conservative academic who served in the George W. Bush Administration – withdraw over concerns about the administration’s increasingly active consideration of a limited military strike on the North;  publish a high-profile op-ed warning that such a so-called “bloody nose” strike “would be putting at risk an American population the size of a medium-size U.S. city [the 230,000 Americans living in South Korea]… on the assumption that a crazy and undeterrable dictator will be rationally cowed by a demonstration of U.S. kinetic power”; and also saw news leak that the Pentagon was considering  changing its policy of allowing  U.S. service members deploying to South Korea (our standing force there includes about 30,000 troops) to bring their families along (an eminently reasonable and yet ominous step reflecting the profound tensions in the region).

So what does any of this have to do with the Nunes memo – other than as an example of how much more important news the Friday memo frenzy displaced?  The sweeping constitutional power over national security we have afforded presidents since the first Korean War is premised centrally on the idea that presidents – in particular their “confidential sources of information,” their “agents in the form of diplomatic, consular and other officials” (Curtiss-Wright) – have access to unique information and expertise that made empowering the presidency essential to American security.  I have written before about the dubiousness of this assumption in supporting broad presidential to use force without congressional authorization.  But as I explain below, the Korea crisis gives us a whole new set of associated constitutional problems to contemplate. For far more important than the content of the memo itself, the cover letter by White House Counsel Donald McGahn, conveying the President’s authorization for the Nunes memo’s release, is yet another object lesson in why the expertise assumption about presidential decision-making should be far more contingent than it typically is. 

The McGahn letter begins with reference to one of the cases regularly cited to establish how broad presidential power is over national security in the modern era, Dep’t of Navy v. Egan, 484 U.S. 518, 527 (1988), quoted in this letter for the proposition that: “The Constitution vests the President with the authority to protect national security secrets from disclosure. As the Supreme Court has recognized, it is the President’s responsibility to classify, declassify, and control access to information bearing on our intelligence sources and methods and national defense.”  Egan is, in this particular context, a deeply ironic case to cite. Setting aside the reality that Egan posed the rather narrow question whether a naval employee denied a security clearance had a statutory right to review of the decision by the Merit Systems Protection Board, the Court’s central rationale for ruling against a right of review was the importance in the security context of respecting expert agency discretion.  As the Court put it: “Predictive judgment of this kind must be made by those with the necessary expertise in protecting classified information. For ‘reasons . . . too obvious to call for enlarged discussion,’ the protection of classified information must be committed to the broad discretion of the agency responsible.” 

Here, of course, every relevant agency whose view was known on the question of whether the memo should have been released thought it should not be.  And while McGahn’s letter says the President followed “established standards governing the handling of classified information” in making his decision, those standards (contained in Executive Order 13526) provide that questions about whether the public interest favors disclosure “shall be referred to the agency head or the senior agency official,” and “[t]hat official will determine, as an exercise of discretion, whether the public interest in disclosure outweighs the damage to the national security that might reasonably be expected from disclosure.”  McGahn may be accurate in stating that the President sought the agencies’ “input.”  He sought it, and then ignored it.

Which brings us back to Korea, and how to evaluate the import of yet more news from this past week, this story reporting that the Pentagon has been slow-walking its effort to provide additional military options to the White House out of fear that giving the president too many choices might increase the odds that he will take action that could trigger a catastrophic North Korean response. The history of military foot-dragging of this nature is storied, and regularly (and rightly) triggers yet a different debate of constitutional import – the unresolved debate about what we mean by civilian control, and whether such behavior undermines it in a constitutional sense.  (More than you want to know about that debate in my previous work, here.) 

More difficult than the usual question of how to distinguish expert advice from undemocratic influence that has long surrounded the work of administrative agencies, one prominent theory of civilian control has it that civilian leaders in a democracy “have the right to be wrong,” that the curative for bad civilian decisions is, as with all else, democratic accountability at the voting booth. Yet as important an argument that may be in some circumstances, such an ex post facto approach to executive constraint seems rather cold comfort when what may turn out to be a ‘wrong’ decision has the effect of costing tens of thousands of Americans (and many more Koreans and/or Japanese) their lives.  The other leading theory of civilian control – Huntington’s idea that a “strong, integrated, highly professional officer corps…, immune to politics and respected for its military character, would be a steadying balance wheel in the conduct of policy” – seems equally unsatisfying, for Huntington thought effective objective control of this nature was made much more difficult by the constitutional decision to give both the President and Congress some power in overseeing the military.  In his view, Congress’ power to, for example, call officers to testify, put military professionals in an impossible position, having to choose at times between their genuine objective judgment and loyalty to (and employment by) their Commander in Chief.  As Huntington put it: “The separation of powers ... has been a major hindrance to the development of military professionalism and civilian control in the United States.”


Circumstances like the current one make me far more inclined to conclude there is something wrong with scholars’ two primary theories of “civilian control” than with our separation of powers system. For as uncomfortable as it may make our military professionals to speak their unvarnished views to the relevant congressional committees – and I think history has repeatedly shown many officers able to manage their professional discomfort better than Huntington might have surmised – it is apparent that no Commander in Chief, and above all not this one, will always act on what expertise he has available to him.  What the separation of powers should – and does – give us, is at least the chance to hear those views for ourselves.  

Wednesday, January 31, 2018

Tolerance Means Dialogue

Jason Mazzone

Robin Fretwell Wilson (Illinois) and Bill Eskridge (Yale) have just launched an ambitious national project, Tolerance Means Dialogue, that brings together people of different backgrounds and beliefs to find common ground on divisive social and political issues. The project seeks to "harness and amplify the insights of Millennials, tomorrow’s leaders, who have grown up with unprecedented diversity—and a spirit of openness and inclusivity." Robin and Bill are working with other partners and participants on a variety of activities and programs that have the potential for transforming interactions on a personal level as well as informing national debates. You can read more about the project at the Tolerance Means Dialogue website and also follow it on Twitter at #ToleranceMeans.

Sunday, January 28, 2018

Strategy When They're Playing Constitutional Hardball and You Think It's the Wrong Game

Mark Tushnet

Not surprisingly I was pleased to see that my idea of constitutional hardball plays a role in Levitsky and Ziblatt's book on How Democracies Die (op ed here). Here I want to reflect on strategies once the game has started and you want to get it to stop. Levitsky and Ziblatt's book has the obvious prescription for Republicans -- the remnants of the "establishment" should do what they can to change the players on their side. For Democrats, though, their strategies involve policy prescriptions, not "moves" in the immediate game. What can Democrats do on a day-by-day basis in the game of constitutional hardball when their ultimate goal is to reinstitute the norms that Levitsky and Ziblatt treat as essential to sustaining a democracy?

The starting point is that Democrats today have relatively little power. So, one possibility is simply to model the behavior they think appropriate norms require -- what Levitsky and Ziblatt call norms of toleration and forebearance. This might include being open to discussion about Republican priorities, such as real repairs to the Affordable Care Act and compromises on immigration policy, and refraining from using every possible procedural tool in the minority's hands to delay legislation and appointments. From my partisan perspective as a relative outsider (no one in Congress has ever called me except to ask for a contribution), it looks to me as if Democratic party leaders are pretty much doing that, though I suspect that people situated similarly to me but on the other side of the partisan divide see it otherwise. (I refer to Democratic party leaders because there are [always] outliers who go off-message -- the problem, as Levitsky and Ziblatt see it, is that those who used to be outliers in the Republican Party are now in the center.)

Another possibility is to use the "weapons of the weak": As enumerated by James Scott, "foot dragging, dissimulation, desertion, false compliance, pilfering, feigned ignorance, slander, arson, sabotage, and so on." Scott's list derives from his work on peasant resistance, so some of the strategies are obviously inapposite to U.S. politics at the congressional level (except perhaps metaphorically). My sense is that Democratic party leaders have done some of this, and that the Democratic"base" would like them to do more. But, there's an obvious tension between this possibility and modeling appropriate behavior. Having been an advocate for more use of the weapons of the weak, I guess I think that such advocacy is a good thing because it holds the leaders' feet to the fire -- that is, it reinforces the idea that they do have to do something to show that they are not happy with the current rules of the game.

That last point seems to me relevant to the possible courses of conduct if -- one hopes, when -- Democrats regain some degree of formal power, such as by winning a majority in the House of Representatives. Here, I think, Levitsky and Ziblatt's emphasis on the norm of forebearance is really important. It's one thing for Democrats in the minority to talk about impeaching the President; it would be another, and in my view quite a bad thing on evidence currently available, for a Democratic majority in the House actually to do so. Somewhere in their book Levitsky and Ziblatt quote my observation that the Clinton impeachment breached a norm that impeachment in the House without a realistic possibility of conviction in the Senate was inappropriate. That would be true of a Trump impeachment (again, on current evidence). Still, it might not be terrible for Democratic party leaders to know how deep opposition within their base is to the President, so it might not be that bad for more or less random people -- commentators, stray members of Congress -- to go around talking about impeachment.

What if the Democrats' formal power includes a slim majority in the Senate? From my narrow perspective, the confirmation process is what matters. People like me think that tit-for-tat is the right strategy: Slow walk court of appeals nominations to the point of immobility, and hold any Supreme Court vacancy open until the next election. Real politicians have a different view, and -- on Levitsky and Ziblatt's analysis -- they are probably right. I can report that the "hold the seat open" strategy has almost no traction among political insiders. Rather, Democratic insiders seem likely to insist on a Garland-like nomination -- not someone from the highly touted Federalist Society list, but some more-or-less standard, relatively obscure but reasonably well thought of, and relatively old George W. Bush appointee to some court of appeals. And, of course, they know how to play the political game much better than I do, so I'm down with that strategy (subject to the "hold their feet to the fire" point about outsider advocacy).

And, finally, what about the (remote) possibility of Democratic control of Congress and the Presidency? Lots of things can change between now and the imagined then. I've tried to put Court-packing on the agenda, with no direct success (although I think I've managed to budge the needle a bit to the point where people who think about these things are now willing to entertain the possibility that some sort of"tit" is appropriate for the Republicans' "tat" in blocking Garland's confirmation; it's just that Court-packing isn't yet thought to be the right response). My guess is that normal processes of age, debilitation, and death will reduce the imperative Democrats might feel to do something -- just as happened after 1937. Still, it's unrealistic to think of Samuel Alito and Neil Gorsuch, much less John Roberts, following the courses taken by Willis Van Devanter (about whom I keep threatening to write an article), George Sutherland, and Charles Evans Hughes. So, again, I suspect that the "feet to the fire" practice should continue.

Wednesday, January 24, 2018

A Question for the Next Census

Gerard N. Magliocca

There is a controversy brewing about the Justice Department's request that the next census ask about citizenship status. The concern is that this question may discourage noncitizens from answering the census and thus lead to an undercount of that population that would affect all sorts of government programs, including representation in the House of Representatives.

I have a separate suggestion. If we are going to add new questions to the census about citizenship, then I would propose reviving one that was asked in the 1870 census. The modern version would ask all citizens above the age of 18 whether their right to vote has ever been "denied . . . or in any way abridged, except for participation in rebellion or other crime." This is language from of Section Two of the Fourteenth Amendment, which states that if states deny or abridge suffrage to presumptively eligible voters to excess then their representation in Congress shall be reduced.

In a paper forthcoming in George Washington Law Review, I argue that the current reapportionment system for the House of Representatives violates Section Two of the Fourteenth Amendment. Adding a voting rights question to the census would not cure that problem, but it would help.

Sunday, January 21, 2018

Political Norms, Constitutional Conventions, and President Trump

Neil Siegel

With the federal government shut down and President Trump calling for an end to the Senate filibuster as to legislation, it is a good time to think about political norms and conventions.

Over the first year of the Trump Presidency, it has become commonplace for reporters, legal academics, and political scientists to note and condemn President Trump's many violations of norms and conventions that had previously guided and restrained presidents of both political parties in the exercise of their discretion. Those efforts to observe and criticize are vital. They seek not only to educate the public about the persistent abnormality of the President's conduct, but also to sanction the president's breaches of the relevant norms and conventions.

Those two terms -- "norms" and "conventions" -- have tended to be used interchangeably; there has not been much discussion of the ways in which norms and conventions are alike, the ways in which they are different, and which conduct of the President arguably violates one or the other. In a new essay entitled Political Norms, Constitutional Conventions, and President Donald Trump, I seek to do some of that work. I argue that conventions find their conceptual space between political norms on the one hand and the game theoretic "equilibria" studied by political scientists on the other hand. "Constitutional conventions," I further suggest (following scholars drawing from the Commonwealth legal tradition), are special kinds of conventions in that fidelity to them helps vindicate particular purposes of the Constitution.

I also catalogue the President's violations of various norms and conventions. But that part of the essay compiles a partial list that became dated almost as soon as I completed each draft. It does, however, raise some intellectually interesting questions of proper categorization.

Here is the abstract:

This symposium Essay argues that what is most troubling about the conduct of President Trump during and since the 2016 U.S. presidential campaign is not any potential violations of the U.S. Constitution or federal law. There likely have been some such violations, and there may be more. But what is most troubling about President Trump is his disregard of political norms that had previously constrained presidential candidates and Presidents, and his flouting of nonlegal but obligatory “constitutional conventions” that had previously guided and disciplined occupants of the White House. These norms and conventions, although not “in” the Constitution, play a pivotal role in sustaining the Constitution. Part I discusses political norms and constitutional conventions, including how they are alike, how they are different, and why they matter in the United States notwithstanding the existence of a written constitution. Part II substantiates this Essay’s claim that President Trump has consistently disrespected numerous political norms and constitutional conventions. The Conclusion suggests that the jury is still out on how successful President Trump will be in eroding political norms and constitutional conventions.

Friday, January 19, 2018

Review of "The Heart of the Constitution"

Gerard N. Magliocca

The Washington Post is running this review of my new book in its Sunday edition.

Tuesday, January 16, 2018

Donald Trump and the Declaration of Independence

Mark Graber

The Declaration of Independence occupies a far smaller place in Donald Trump’s public rhetoric than in the public rhetoric of any other modern president.  Presidential references to the Declaration of Independence or presidential quotations of such phrases as “all men are created equal” rose steadily from 1933 to 2016, in part because presidents gave an increasing number of recorded speeches and issued an increasing number of public proclamations.  President Barack Obama mentioned or quoted from the Declaration of Independence an average of 31 times a year when he was in office.  Donald Trump, on a generous interpretation, mentioned or quoted the Declaration only 15 times during his first year in office, despite producing as much paper as any other president.  Unlike past presidents, the phrase “consent of the governed” never drips from his tongue, he never mentions “self-evident truths,” and barely makes reference to “inalienable rights.”

Trump’s use of the Declaration is far more vacuous than any other contemporary president.  All presidents make symbolic use of the Declaration.  German-American Day proclamations note the signers of the Declaration born in Germany.  Nevertheless, all modern presidents before Trump put the Declaration at the heart of crucial policy arguments.  The second president George Bush repeatedly invoked the Declaration when arguing against abortion rights and distinguishing American commitments to universal human rights from the commitments of nations in the “axis of evil.”  Obama repeatedly invoked the Declaration when argument for gay rights, economic equality and the rights of immigrants.  All presidents since Franklin Roosevelt repeatedly asserted the centrality of the Declaration to American national identity.  Trump’s references to the Declaration, by comparison, are largely pro forma.  He does not mention that American identity is defined by commitment to the principles stated in Jefferson’s second paragraph.  He rarely refers to the Declaration when making arguments for particular policies.  Trump makes substantive references to the Declaration only when claiming Jefferson’s reference to “Creator” supports the presence of religion in public life.

Whether the Declaration remains a revolutionary document in the United States seemed doubtful before Trump took office. The Declaration’s assertion that the point of government was to protect individual rights, promote equality and serve the public good was highly contested in 1776.  Many people then thought the point of government was to protect the interests of a few families, promote the one true religion, serve the master race or rule the world.  By the end of the twentieth century, however, most Americans rested comfortable in the notion that the Declaration had won the day, that arguments about the purpose of government concerned how best to protect individual rights, promote equality and serve the public good, not whether government ought to pursue different ends.  This agreement on what might be called liberal/republican constitutional ends, explains why both Republicans and Democrats in the White House each made free use of the Declaration when championed their particular version of liberal republican constitutionalism.  The Declaration did not take sides in public debate prior to 2016, because all participants agreed on the Declaration's understanding of legitimate constitutional ends. 

Donald Trump’s public indifference to the Declaration suggests that this consensus on the purposes of government is not as broad as Americans might have thought during the Bush II and Obama presidencies.  Trump’s rare and vacuous references to Jefferson’s work suggest that he neither thinks that the Declaration establishes American governing purposes nor believes that adherence to the Declaration defines American national identity.  He purports to make “American great again” without understanding that American greatness lies in the national commitment to principles set out in the Declaration, a national commitment to the self-evident truths that “all men are created equal,” that all persons are “endowed by their Creator with certain inalienable rights, that among these are life, liberty and the pursuit of happiness,” that governments “deriv[e] their just powers from the consent of governed,” and that “it is the right of the people to alter or to abolish” any government that “becomes destructive of those ends.”

Monday, January 15, 2018

When Trump Denies Lying, Could He Be Telling the Truth?

Mark Graber

[From Dr. Julia Frank, Clinical Professor of Psychiatry]

Like political analysts, psychiatrists are interested  in statements that do not conform to consensual reality, or to put it plainly, lying. Political thinkers parse lies  for their identifiable strategic purpose: to conceal wrongdoing (“I did not have sexual relations with that woman” ) (Clinton, 4/8/2012) or to advance an agenda (“The murder rate in our country is the highest it has been in 47 years” ) (Trump 2/8/1027). http://www.politifact.com/ Exposing  the truth effectively counters strategic lies.

But how do we understand the reflexive lies, easily and readily disproven, that spew from our president’s itchy twitter finger? Even when the evidence is incontrovertible, he sticks to his version of reality, about everything from the size of his inauguration crowd to his recent denial that he said what he said about Haiti and countries in Africa in front of an audience of US senators.

The question of why people from senators on down so readily accept, forgive and rationalize a leader’s lies is another legitimate focus of political analysis. As someone with professional license to think about non-rational motives for behavior, I am more interested in the question of whether Trump even knows he is lying.

Trump’s behavior is at least consistent with deficient capacity for mentalization. Mentalization is a newish concept in the psychotherapy literature, with implications for understanding socially undesirable and self-defeating behavior of many kinds. Moreover, high status strains the capacity for mentalization, even in those who showed no impairment before being elevated to positions of leadership.

Influential psychologists and psychiatrists define mentalization as the capacity to perceive and understand the difference between inner experience and the experiences of another person. The opposite is belief in an exact correspondence between one’s own mind and the world outside. None of us could live in the world if we did not reflexively credit our perception most of the time, but when experience contradicts perception, mentally healthy people adjust their inner reality to absorb new facts. By contrast, the ability to recognize when material or social reality contradicts perception or belief may be seriously deficient in people across a wide spectrum of mental disorders.

Irony, humility, and self-awareness flourish in the cracks between belief and outside reality. When no space exists, these qualities wither and die.  People with schizophrenia often lack a sense of humor. Therapists know not to try to make jokes when treating someone with a severe personality disorder. Famously unable to display humility, Donald Trump also seems to suffer from a serious irony deficiency, suggesting his capacity for mentalization falls well outside the range of normal.

Diminished capacity for mentalization may help explain how and why Trump lies so shamelessly.  People who cannot perceive the difference between what they believe and the world as it is lie without awareness that they doing so. Even while propounding wild untruths, this lack of awareness makes them seem authentic and sincere. People capable of doubting their own views, by contrast, risk appearing inconsistent or hypocritical. Deficient capacity for mentalization thus fosters a world of principled hypocrites and plausible liars.

Like every other mental quality, the capacity for mentalization presumably results from genetic endowment, modified by experience. Also like every other mental capacity, current circumstances will magnify or suppress whatever traits a person brings to the political arena. Trump’s current role as a leader may reinforce his presumed earlier deficiencies.

When a complex organism, human or otherwise, is threatened or traumatized, a basic, evolutionarily conserved, hard wired neural process narrows attention to focus on cues related to threat.  This process excludes awareness of the context of the threat, or signs of support and security. Arguably, being a leader in and of itself stresses even well evolved capacities for mentalization. High level  leaders, like alpha primates, may be exquisitely attuned to threats to their dominance. In response, they choose their associates to avoid contact with those who might challenge them. Politicians at the highest level even have some capacity to influence reality, at least media representations of reality. Controlling interactions and the flow of information creates a reverberating circuit, in which the leaders’ distorted views come back to them as outside influence, making their distortions ever more inflexible. Understood in this way, Trump may not be lying, at least in the strategic sense, when he denies the truth.




Friday, January 12, 2018

Taking the Text of the Twenty-Fifth Amendment Seriously

Mark Graber

Donald Trump is constitutionally unfit to be President of the United States.  The Twenty-Fifth Amendment to the Constitution of the United States requires the Vice President to assume the presidency whenever “the President is unable to discharge the powers and duties of his office.”  The Twenty-Fifth Amendment does not condition the temporary or permanent removal of the president on the president being “physically” or “medically” unable to discharge the powers and duties of his or her office.  Rather, the Vice-President is to assume the powers of the presidency when, for any reason, "the President is unable to discharge the powers and duties of his office.”  A president who is a congenital liar and a bigot, under the explicit words of the Twenty-Fifth Amendment is unable to discharge the powers and duties of his or her office.

The last paragraph of Section 4 supports claims that the Twenty-Fifth Amendment is not limited to physical or medical conditions.  That paragraph authorizes Congress to resolve, by a two-thirds vote of both Houses, whether a president is able to discharge the powers and duties of the presidency.  Members of Congress as a whole have no particular expertise on physical, medical, or psychiatric conditions.  That is for medical professions, who are given no role in the constitutional process for removing the president.  Members of Congress do have expertise on whether a president, for any reason, is capable of discharging his or her responsibilities.  Thus, given that Congress cannot determine whether a president is a sociopath, but can determine whether the president is a congenital liar, the best reading of the Twenty-Fifth Amendment is that Congress should focus on whether the president is able to discharge the powers and duties of office and not on whether the reason for that failure is some physical or medical problem.

The contrary position has absurd consequences.  Consider a president who goes on a permanent vacation and refuses to discharge any of the powers and duties of the office.  For political purposes, no difference exists between that president and the brain-dead president.  If we limit the Twenty-Fifth Amendment to presidents with physical or medical conditions, however, we can only remove the brain-dead president.  Consider a president who lies repeatedly, consistently utters bigoted remarks and makes irrational decisions.  If we limit the Twenty-Fifth Amendment to presidents with physical or mental conditions, we can remove that president only if we discover that the behavior is question is caused by a brain deformity or by depression caused by the death of a loved one.  For constitutional purposes, no difference exists between the congenital liar suffering from brain lesions, the congenital liar suffering from depression and the congenital liar who is just a rotten human being.

Donald Trump plainly meets the standards for removal from office under the Twenty-Fifth Amendment.  A congenital liar cannot discharge the powers or duties of office.  As Heidi Kitrosser points out in an important book, the constitutional separation of powers requires the public have the information necessary to hold government officials accountable.  A president who averages several major lies a day, and who cannot tell the truth about matters ranging from attendance at the inauguration to the facts underlying his tax and immigration policies cannot perform the duties of office necessary for constitutional accountability.  A bigot cannot discharge the powers or duties of office.  The Fifth Amendment by case law and Fourteenth Amendment explicitly mandate that neither the United States nor any state shall “deny to any person within its jurisdiction the equal protection of the laws.” A president committed to white supremacy is unable to implement congressional legislation promoting this commitment to equality under law or appoint justices and other officials who will act consistently with the constitutional commitment to equality.

That Donald Trump is constitutionally unfit for office is as much a matter for constitutional politics as constitutional law.  No politically sane person expects that Republicans in Congress will take seriously their constitutional obligation to determine whether Donald Trump has the capacity to discharge his presidential responsibilities as long as they believe Trump will sign tax cuts for their donors and appoint reactionary justices to the federal bench.  Nevertheless, whether removal is politically possible at present or politically desirable should Democrats gain control of Congress is a separate issue from the more fundamental question whether the current occupant of the White House is capable of holding office.  On that question, the Twenty-Fifth Amendment is clear.  A president unfit for office is not entitled to deference or respect, even if for transient political reasons that president is not removed from office.





Friday, January 05, 2018

Can the New DOJ Policy on Pot Be Applied Retroactively?

Guest Blogger

Alec Walen


On January 4, 2018, Attorney General Jeff Sessions issued a memorandum rescinding the prior policy of the Department of Justice (DOJ). This prior policy, spelled out in the so-called Cole memo, instructed “federal prosecutors to de-prioritize marijuana-related prosecutions in those states — except in certain cases, such as when there were sales to children, gang-related activity, or diversions of the product to states where it remained entirely illegal?” (NY Times article) The new policy emphasizes that DOJ prosecutors should pursue marijuana prosecutions just as it pursues every other criminal activity.

The implication of the new policy is that activity involving the cultivation, distribution and even possession of pot—activity that was legal under state law, and that people thought, relying on the Cole memo, was not going to the basis of a prosecution under federal law—can now form the basis of a federal prosecution. The question I want to raise is: would such prosecutions be constitutional?

In favor of prosecution, one can say that it’s always been obvious that the federal law was out there and that it is not negated by any state law to the contrary.

On the other hand, the Cole memo gave people reason to rely on the thought that the federal law was effectively nullified as long as they operated within certain limits. To prosecute them now is to “spring a trap” on them. (quoting Posner, dissenting in U.S. v. Wilson, 159 F.3d 280,289 (7th Cir. 1998)).

The constitutional hook for the defense is the due process clause. It is well known that the due process right not to be prosecuted based on the difficulty of knowing the law is a very limited right. Lambert v. CA, 355 U.S. 225 (1957) held that there was a due process right against conviction when the crime was “wholly passive,” the law was merely “for the convenience of law enforcement agencies,” and there was nothing about the circumstances to “alert the doer to the consequences of his deed.” But as Justice Frankfurter foretold in his dissent, the decision turned out to be “a derelict on the waters of the law.”

On the other side, there are a number of decisions rejecting the defense that a defendant could not have predicted that his behavior would be against the law. I could cite many, but I’ll go with just one set of cases, the Albertini cases and the S.Ct. decision in U.S. v Rodgers, 466 U.S. 475, 484 (1984). In the former, the 9th circuit held that a defendant could not be prosecuted for trespass when he lived in state in the 9th circuit and relied on 9th circuit precedent that held that he had a First Amendment right to protest on a military installation, even if the Supreme Court later overruled the 9th Circuit’s holding on his right to protest on a military base. But in the Rodgers case, the Supreme Court rejected that defense, holding that “the existence of conflicting cases from other Court of Appeals made review of that issue by this Court and against the position of the respondent reasonably foreseeable.” In other words, under the Rodgers decision, Albertini would have had no defense.

One could easily imagine a prosecutor arguing that it was always reasonably foreseeable that a new sheriff would come to town and decide to enforce the federal marijuana law, and that those who buy or sell pot had no right to rely on their state law permitting it and the federal policy not to enforce the federal law.

The question is: could the defense mount a compelling case that such a move would violate due process? It could go in two ways:

  1. Distinguish Rodgers. Perhaps it should be argued that there was no contemporaneous warning that the federal law might be enforced, and argue that people should have a right to rely on a policy statement from the U.S. department of justice about what will not be prosecuted.
  2. Revisit Rodgers.

Both strands could be reinforced with the thought that fundamental fairness, the principle of legality, and the principle behind the ex post facto law, all require that a decision to start enforcing federal law, law that the DOJ had publicly stated would not be enforced, can only result in prosecutions for activity that violates that law going forward, not retroactively.

If I were to bet on this, I’d bet heavily that the due process clause would not be found to protect those who relied on state law and federal policy. But as a matter of justice, it is clear to me that this would be a failure of fairness, legality and true due process norms.


Alec Walen is Professor of Law at Rutgers-Camden School of Law. You can reach him by e-mail at at awalen at camden.rutgers.edu.


Tuesday, January 02, 2018

The Solicitor General's Baffling Brief in Lucia v. SEC

Marty Lederman

In a series of recent posts (most recent here), I’ve been sharply critical of filings by the Solicitor General in the Hargan v. Garza abortion litigation, involving HHS’s efforts to deny minors in their de facto custody the ability to exercise their constitutional rights.  Last month, for example, I wrote that the Solicitor General’s nominal “Petition for Certiorari” in No. 17-654 “[i]n many respects . . . departs, sometimes dramatically, from the justly lauded, traditional standards and practices of [the Office of the Solicitor General].” 

Unfortunately, it appears that the Hargan litigation is not a singular aberration.  Three weeks after his petition in Hargan, the Solicitor General filed another extraordinary brief in No. 17-130, Lucia v. SEC, about a topic far removed from (and less heated than) abortion rights—namely, whether the Administrative Law Judges (ALJs) who work in the Securities and Exchange Commission (SEC) are hired in a manner that violates the Appointments Clause of the Constitution, Art. II, § 2, cl. 2.  

In his Lucia brief, filed on behalf of the Respondent SEC, the SG urges the Court to grant Lucia’s petition for certiorari, even though the government prevailed below.  As I’ll discuss, SG Francisco failed to offer a compelling reason why the government was switching its longstanding legal position in Lucia; but that’s not what makes the brief especially concerning.  Such a reversal is unusual, but it’s not, in and of itself, problematic.  Indeed, one of the most laudable practices of the Office of Solicitor General is the confession of error.      

What makes the brief extraordinary, from the perspective of the Office’s usual standards, are two other things:

-- First, the SG did not explain why, under the government’s new view, the proper response was not for the defendant agency—the SEC—to change its practices to conform to the government’s new view of what the Constitution requires, rather than (as the SG has urged) for the Court to grant cert.  What’s more, the brief failed to inform the Court that the SEC was about to take steps, the very next day, to cure the alleged constitutional infirmity identified in the petition and thereby also eliminate the purported basis for the Court to grant the petition.  The SG’s stated justification for the Court to grant the petition is no longer operative—yet the SG has not whispered a word to the Court about that decisive change of circumstance.

-- Second, the SG not only asked the Court to grant cert. on the Appointments Clause question where there was no longer any factual predicate for it; he also asked the Court to expand the Question Presented to include an additional constitutional challenge to a federal statute (regarding ALJs’ “for cause” removal protections) that no court has accepted, on which no court of appeals has opined, and that the petitioners themselves have not raised.

* * * *

Some background:  Petitioners Lucia, et al., were registered investment advisers who marketed a wealth-management strategy called “Buckets of Money.”  The SEC instituted administrative proceedings against them based upon allegations that they had used misleading slideshow presentations to deceive prospective clients about how the “Buckets of Money” strategy would have performed under historical market conditions, in violation of three federal statutes. 

The Commission assigned the initial stages of the proceeding to ALJ Cameron Elliot.  After a hearing, Elliot concluded that the petitioners had willfully and materially misled investors in violation of the Investment Advisers Act, and ordered a variety of sanctions.  Such an ALJ decision does not itself operate by force of law:  It becomes final only upon an order issued by the SEC itself, and the SEC reviews the ALJ’s decision de novo.  In this case, the Commission conducted an independent review of the record, except with respect to the findings not challenged on appeal, and the Commission determined that the ALJ had correctly found that the petitioners had willfully made fraudulent statements and omissions in violation of the Investment Advisers Act.  With limited exceptions, the Commission also affirmed the sanctions that ALJ Elliot had proposed.

Lucia and the other petitioners challenged the SEC process on the ground that ALJ Elliot was an “inferior” “Officer[] of the United States” who had not been appointed in conformity with the Appointments Clause.  The Appointments Clause provides that such inferior Officers must be appointed in one of four ways: by the President, by and with the advice and consent of the Senate; by the President alone; by a court of law; or—as most relevant here—by the head of a Department. 

The five-member Commission is the head of a Department, and the relevant statute would permit the Commissioners to appoint ALJs.  See 5 U.S.C. 3105 (“Each agency shall appoint as many administrative law judges as are necessary . . . .”).  If the Commission had done so, such an appointment would have satisfied the Appointments Clause even if ALJ Elliot is an inferior “Officer.”  The SEC, however, for some reason had not itself directly appointed its ALJs.  Most of them were, instead, chosen by the Commission’s Office of Human Resources, based upon recommendations by the SEC’s Chief ALJ and an interview committee, who in turn selected individuals from among three candidates identified by the U.S. Office of Personnel Management.  ALJ Elliot, too, appears to have been hired by the Office of Human Resources, albeit perhaps not pursuant to the OPM “Rule of Three” (see this transcript at pp. 4470-72).   

Everyone agrees that if ALJ Elliot is an “Officer of the United States,” his hiring by the SEC’s Office of Human Resources violated the Appointments Clause, because the Commission itself did not (as of the date of the ALJ’s hearing) approve the appointment.  (As the Office of Legal Counsel has explained, the appointment process can largely be delegated to officials other than the head of the Department, such as the Human Resources Department, as long as the “ultimate decision” on the appointment remains with the head of the Department.  Here, however, the SEC did not (until recently—see below) confirm the appointment of ALJ Elliot.)

The question presented by the Lucia petition thus is whether ALJ Elliot is an “Officer” for purposes of the Appointments Clause, or whether he is, instead, a mere “employee,” who may constitutionally be appointed as Mr. Elliot was here.

There’s a circuit split on that question:  The U.S. Court of Appeals for the D.C. Circuit says that the SEC ALJs are employees for Appointments Clause purposes, whereas the Court of Appeals for the Tenth Circuit says they’re “Officers.”  Until a few weeks ago, the longstanding view of the SEC itself, and of the United States, was that these ALJs are employees, and thus that it is not constitutionally necessary for the SEC Commissioners themselves to appoint them.  That is the position the government argued to the en banc D.C. Circuit in the Lucia case in May.  The court of appeals affirmed the judgment against Lucia by an equally divided 5-5 vote (with Chief Judge Garland recused).

In his Lucia brief in the Supreme Court, however, SG Francisco, on behalf of the SEC, now reverses the United States’s traditional view:  He argues that the ALJs are “Officers” and therefore were hired in violation of the Appointments Clause.

I tend to think the government’s previous, traditional view was correct—that the SEC’s ALJs are employees rather than officers, primarily because they do not have the independent power, without the action of the Commission itself, to bind third parties or the government itself for the public benefit.  See 31 Op. O.L.C. 73, 87 (2007).  Concededly, however, it’s a close and unresolved question, owing in part to the somewhat cryptic and imprecise opinion of the Court in Freytag v. Commissioner (1991).  Reasonable minds can differ. 

And apparently SG Francisco does:  His view, after “further consideration” of the question (p.9), is that the ALJs are “Officers” and thus must be appointed by the SEC itself.  Fair enough.  Just because a new SG does not agree with the traditional view of the United States on a legal question, however, does not mean that the government should therefore change its legal position in court—particularly not where, as here, the Trump Administration itself pressed the traditional view before an en banc court of appeals just six months earlier (reply brief here; oral argument here); and where the new view would impose greater constraints on the flexibility of the client agency.  The traditional understanding is that the core of the Solicitor General’s responsibility is, in the words of former SG Seth Waxman, “to ascertain and represent the interests of the United States in litigation.”  And, obviously, it is not in the interests of the United States to flip its views every time a particular Solicitor General happens to personally think that the prevailing U.S. position is not the one he would have arrived at on a clean slate.  Such convulsive shifts, based entirely on the person who happens to be SG at a given time, would undermine the credibility of OSG’s representations to the Court.

This doesn’t mean that such shifts are always inappropriate, however.  Sometimes, for instance, major changes in the Supreme Court’s own jurisprudence might warrant a reconsideration of the government’s views.  And in still other cases, a Solicitor General, Attorney General, and/or the President might conclude that the traditional U.S. position was insufficiently protective of constitutional rights—such as the switch in positions of the George W. Bush Administration on the Second Amendment, or President Obama’s conclusion that Section 3 of the Defense of Marriage Act was unconstitutional.  The SG’s Lucia brief, unfortunately, fails to offer any such compelling reason for the about-face, apart from the fact that the new SG undertook “further consideration” of the question.  (The brief also refers (pp.9-10) to “the implications for the exercise of executive power under Article II”—but it doesn’t say what those “implications” might be.  Indeed, executive power is enhanced if the agency may choose among different means of appointing ALJs—a flexibility that the government’s new view would foreclose.)

* * * *

The failure to offer a good explanation for the shift in the government’s traditional view, however, is not what makes the brief so troubling.  What’s much more inexplicable is the SG’s failure to offer a persuasive reason why certiorari is warranted in light of the new position of the United States, and his failure to inform the Court of intervening developments undertaken by the Respondent agency itself that eliminate the need for the Court to resolve the Question Presented. 

The SG argues (p.10) that the Court should grant cert. because “[t]he question presented has arisen frequently across the courts of appeals on petitions for review of the Commission’s decisions, and it will continue to arise absent this Court’s intervention.”  Indeed, the SG represents (p.25) that “the Commission’s ability to enforce the nation’s securities laws has, in significant respects, been put on hold pending this Court’s resolution of the question presented.”

This is simply untrue, however—or, more to the point, it was something entirely within the Respondent agency’s own power to prevent.  The upshot of the SG’s brief for the SEC is this:  “We have been acting unconstitutionally.”  OK, then, if that's the case—if the SEC’s new view is that its ALJs are “officers”—then why wouldn’t the Commission now simply appoint ALJs in conformity with the Appointments Clause, by making the appointments itself, thereby curing the constitutional defect?  (The federal statute allows the SEC to do so.  The SG’s view of the constitutional question, that is to say, does not mean that any federal statute is unconstitutional.)  One would expect the brief to say something about that possibility—about whether and how the SEC was responding to its new view that the appointments had been unconstitutional.  Yet on this crucial question, the brief is silent.

Worse yet, the brief does not mention the critical fact that the SEC was, indeed, about to cure the constitutional defect.  The very next day after the brief was filed, the Commission— in its capacity as head of a department—“ratified” the appointment of Elliot and its other ALJs.  The Commission further ordered that all pending cases, including those that had already been appealed from an ALJ to the Commission itself, must be reconsidered before a properly appointed ALJ, with an opportunity for the parties to submit new evidence.

Because of this action by the SEC, the question presented will not “continue to arise absent this Court’s intervention,” nor will “the Commission’s ability to enforce the nation’s securities laws [be] put on hold pending this Court’s resolution of the question presented.”  There is no longer any reason for the Court to consider the merits of an agency practice that no longer exists and that the agency and the Solicitor General have concluded cannot be revived.[1]
  
The SG’s failure even to identify, let alone discuss, this development, is indefensible, best I can tell.

* * * *

Perhaps that failure can be explained by the other remarkable aspect of the SG’s new brief:  the SG’s eagerness for the Court also to consider an additional constitutional question, concerning the ALJs’ statutory protection from removal, that is not affected by the SEC’s recent appointment of the ALJs.

Only the Commission itself can remove ALJs from office, and then “only for good cause established and determined by the Merit Systems Protection Board.”  5 U.S.C. 7521(a).  Moreover, the President can only remove the members of the MSPB and (probably) Commissioners on the SEC itself for “good cause,” e.g. (as to the MSPB), “only for inefficiency, neglect of duty, or malfeasance in office.”  5 U.S.C. 1202(d).  After the Court’s decision in Free Enterprise Fund v. Public Co. Accounting Oversight Bd., it is an open question whether this multi-layer “for cause” removal protection for ALJs is constitutional.  See FEF, 561 U.S. at 507 n.10; id. at 542-43 (Breyer, J., dissenting).

The SG’s brief urges the Court to resolve this removal question, too.  “It is critically important,” writes Francisco (p.21), “that the Court, in considering whether the Commission’s ALJs are ‘Officers of the United States,’ address whether the restrictions imposed by statute on their removal are consistent with the constitutionally prescribed separation of powers.”  Yet not only doesn’t the SG offer any reasons why the Court’s consideration of that question would be “critically important” now, he does not even offer any good reason why the Court should do so.  And there are plenty of good reasons—reasons the Solicitor General himself typically invokes, but that he disregards here—why the Court should not grant the petition in order to review that question. 

For one thing, the petitioners themselves have not raised it in the case, let alone in their petition, and, as they explain in their reply brief, they do not want the Court to address it.  Indeed, as the reply brief notes (pp. 10-11), even if the petitioners did take the view that they have a right to appear before an ALJ who is not protected by such removal restrictions, that question might never arise in their case—if, for example, “the proceeding is dismissed, or petitioners are afforded a new trial in an Article III forum.”  

Moreover, not only is there not a circuit split on the question, but no federal court has ever held that the ALJ removal protections are unconstitutional, and no court of appeals has even opined on the question, one way or the other.  (The question has been raised in a D.C. Circuit case (Timbervest v. SEC, No. 15-1416) that the court of appeals is holding in abeyance pending the Supreme Court’s disposition of Lucia.)  Thus, as petitioners note (p.10), “[t]he Solicitor General . . . asks this Court to break new ground”—to address the constitutionality of a federal statute, no less!—“without the benefit of a decision from the court below or any other court of appeals.”  (It's not surprising that there's no immediate prospect of a petition cleanly raising the question:  It is far from obvious that most actors in the regulated community would be keen on a Supreme Court holding that the SEC can remove ALJs at will.)

Finally, the SG does not even suggest, let alone argue, that the ALJ “good cause” removal provisions of the federal law are unconstitutional—and there are very good reasons to believe that they are not, because an ALJ’s principal role is, of course, to perform adjudicative rather than enforcement or policymaking functions.”  FEF, 561 U.S. at 507 n.10; see also Wiener v. United States, 357 U.S. 349 (1958).[2]

Obviously, then, if the Solicitor General were applying his Office’s usual standards, he would never have urged the Court to consider the merits of the removal question.  In this respect, too, he has starkly deviated from the traditional practices of the Office.

* * * *
The Justices are scheduled to discuss Lucia at their conference this coming Friday, January 5.  For the reasons I’ve set out here, the case is not cert.-worthy:  In light of the Respondent’s new view of what the Appointments Clause requires, and the SEC’s recent appointments of its ALJs, there’s no reason for the Court to consider the merits of the agency’s past practice, which it has now repudiated and abandoned. 

Nevertheless, Lucia notes in its reply brief that the SEC’s action to fix the problem going forward does not remedy the petitioners’ own injuries (p.5):  “Although the government now agrees that SEC ALJs are Officers, it has afforded petitioners no redress for having subjected them to trial before an unconstitutionally constituted tribunal.”  It further asserts (p.6) that “[a]bsent review by this Court, the judgment below will stand uncorrected notwithstanding the Justice Department’s confession of error.”  I’m not sure that’s right.  It might be the case that the SEC can now order the petitioners’ own case to be reopened before a properly appointed ALJ, just as it has done with respect to cases that remain pending before the Commission.  If so, the Commission obviously should do so right away.  If it does not do so, however—or if the agency no longer has jurisdiction to so “reopen” the petitioners’ case because the appeal is pending in an Article III court (a question I haven’t researched)—the Court should grant Lucia’s petition, vacate the judgment below, and remand the case to the court of appeals, with an order for that court to remand the case to the agency for reconsideration before a newly appointed ALJ (or some other lawful disposition).





[1] In its reply brief, Lucia offers two reasons why the Court should hear the case, even after this curative action by the Commission.  Neither reason is persuasive, however.

First, Lucia suggests (p.6) that perhaps the SEC itself—in contrast to the SG—might actually refuse to appoint the ALJs, and “continu[e] to assert that its ALJs are employees. . . .  [T]he Commission will not actually acknowledge that petitioners were tried by an unconstitutional adjudicator or provide an appropriate remedy for that constitutional violation.”  The SEC, however, already has acknowledged that a Commission appointment is necessary to cure a constitutional defect:  That is precisely the argument of the brief that the Solicitor General filed on behalf of the SEC.  Even if there might be certain officials at the SEC who do not personally agree with the view in the brief, the Commission itself is now formally on record as conceding that an appointment by the “Head” of the “Department” is constitutionally required—and it has taken steps to comply with that requirement.

Second, Lucia argues (p.8) that the SEC’s purported “ratification” does not do the (constitutional) trick, because the SEC used the wrong nomenclature:  Instead of saying that the SEC “hereby appoints” the existing ALJs, or words to that effect, the Commission stated that it was ratifying the “agency’s prior appointment” of the five identified ALJs—and the agency, as such, had not, in fact, made the prior appointments.  Surely, however, the Commission’s failure to use any special “magic words”—or, more to the point, its insertion of the word “agency’s” to refer to the actions of the SEC’s Human Resources Department—should not make any constitutional difference.  The Commission has expressed its will to appoint Elliot and the other ALJs through an open and unequivocal public act, which is all the Constitution requires.  See Marbury, 5 U.S. at 156-57.  (And even if some clerical correction were required to confirm the new appointments, that would hardly be reason for the Court to grant cert.)

[2] The SG writes, in passing (p.20), that “the status of the Commission’s ALJs as constitutional ‘Officers’ . . . has implications for whether the statutory restrictions on their removal are consistent with separation-of-powers principles.”  That’s not correct:  It’s mixing apples and oranges.  Whether or not ALJs are “officers” for purposes of the Appointments Clause is a question entirely distinct from whether Congress’s prescribed method for removing ALJs “impermissibly burdens the President's power to control or supervise” such actors “in the[ir] execution of . . . duties under the Act” and thereby “interfere[s] impermissibly with his constitutional obligation to ensure the faithful execution of the laws.”  Morrison v. Olson, 487 U.S. at 692-93.  To be sure, evaluation of the ALJ’s particular functions, and of the SEC’s supervisory authority over such ALJs, is relevant to both questions, and it’s difficult to imagine any “employee,” not covered by the Appointments Clause, for whom Congress may not provide “for cause” removal protection; nevertheless, the answer to the “officer/employee” question for Appointments Clause purposes does not resolve, or even affect, the question of whether particular removal restrictions are constitutional.

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