https://verdict.justia.com/ Legal analysis and commentary from Justia.com with the columinst team of Vikram Amar, Neil Buchanan, Sherry Colb, John Dean, Michael Dorf, Joanna Grossman, Marci Hamilton, Julie Hilden, Joanne Mariner and Anita Ramasastry. Thu, 06 Nov 2025 05:01:21 +0000 en-US hourly 1 Legal analysis and commentary from Justia.com with the columinst team of Vikram Amar, Neil Buchanan, Sherry Colb, John Dean, Michael Dorf, Joanna Grossman, Marci Hamilton, Julie Hilden, Joanne Mariner and Anita Ramasastry. Justia Inc no Copyright 2011 Justia Copyright © Verdict 2013 podcast Legal Analysis and Commentary from Justia https://verdict.justia.com/wp-content/uploads/2017/08/main.png https://verdict.justia.com 31a94e07-3cdc-59e0-b773-3fa741290b31 24567935 law,news,politics,legal,commentaryopinionsupport@justia.comJustia Inc https://verdict.justia.com/2019/02/18/complicity-in-trumps-bogus-emergency Mon, 18 Feb 2019 05:01:04 +0000 https://verdict.justia.com/?p=21459 https://verdict.justia.com/2019/02/18/complicity-in-trumps-bogus-emergency#respond https://verdict.justia.com/2019/02/18/complicity-in-trumps-bogus-emergency/feed 0 Cornell law professor Michael C. Dorf comments on President Trump’s declaration of a national emergency after Congress denied him most of the funding he requested for a border wall. Dorf describes the legal framework that allows the president to do so even in the absence of an emergency and points out that combined actions of Congress, the courts, and the People have created this situation.

After Congress denied him most of the funding he requested for a border wall last week, President Trump declared a national emergency, thereby invoking power to shift funds that were originally appropriated for other purposes. To state the obvious, no emergency exists. Illegal border crossings are down, and while there has been a recent increase in the number of Central Americans seeking refuge from violence in their home countries, those migrants seek to enter the US at recognized border crossings; a wall would do nothing to address that problem.

Meanwhile, even if a border wall were a reasonable policy proposal, there is no justification for unilateral presidential action. A president sometimes must act without first consulting Congress, because time is of the essence. For example, Congress was not in session when Confederate forces fired on Fort Sumter in April 1861, but President Lincoln, while promptly calling for a special session, quite properly did not wait for Congress to reconvene before commencing his defense of the Union. Needless to say, the southern border is not under armed attack, and President Trump has had plenty of time to obtain congressional funding for a wall. A president not getting everything he wants from Congress does not constitute an emergency in any ordinary sense of the word.

Accordingly, various persons and institutions have filed or plan to file lawsuits seeking to block Trump’s ability to divert funds from their appropriated purposes, to exercise the power of eminent domain over private and tribal lands, and otherwise act on the basis of his bogus emergency. These lawsuits will likely delay work on the border wall, but whether they ultimately succeed remains to be seen.

The fact that there is even a slim chance that Trump will have his way is remarkable. The US Constitution grants the president no emergency spending powers. Indeed, it specifically forbids money from being “drawn from the treasury, but in consequence of appropriations made by law.” How, then, is it possible that Trump has any wiggle room at all to circumvent Congress?

The short answer is that while Trump himself bears the largest share of responsibility for this latest shameful undermining of constitutional democracy, he could not have accomplished it without assistance from Congress, the courts, and the People.

Emergency Power Run Amok

Prior to the adoption of the National Emergencies Act (NEA) in 1976, presidents had declared emergencies even without congressional authorization. The NEA’s purpose was to terminate prior declared emergencies and to prescribe limits on the duration of subsequent declared emergencies. Yet ironically, that Act and others have had largely the opposite effect: delegating to the president a somewhat open-ended power.

The original version of the NEA allowed Congress to terminate a presidentially declared national emergency by a concurrent resolution—that is, by a bill passed by both houses of Congress, without the need for a presidential signature. However, in the 1983 case of INS v. Chadha, the Supreme Court held that legislative vetoes violate Article I, Section 7 of the Constitution. The Chadha case invalidated a unicameral legislative veto, but subsequent decisions applied its rule to invalidate a bicameral veto as well.

Accordingly, in recognition of the unconstitutionality of the concurrent-resolution procedure for terminating a national emergency, in 1985 Congress amended the NEA to require a joint resolution of Congress to terminate a presidentially declared emergency. But a joint resolution is really just another word for a law, and Congress would have had the power to end a presidential declaration of a national emergency even without the termination provision. Accordingly, in order to end a national emergency over the president’s objection, 2/3 of each house of Congress must vote to override his inevitable veto.

In the current climate, that is likely to be impossible. By contrast, a concurrent resolution just might be possible. A majority of the Democratic-controlled House would surely terminate Trump’s emergency, and perhaps thirteen Republican country-first Senators could be found to garner the 60 votes needed to overcome a filibuster. But there is no way to reach the 2/3 vote needed in each chamber, given how many Republican members of each chamber fear a primary challenge from a more Trump-loyal rival. Thus, although there was no guarantee that even the pre-Chadha procedure would have sufficed to override Trump’s emergency declaration, the Court’s legislative veto decision dooms any such effort now.

That is not to say that the Supreme Court alone bears responsibility for the likely persistence of Trump’s bogus emergency declaration. Congress could have—and should have—responded to the Chadha decision with a much more substantial limitation. It should have stated in the NEA and other statutes delegating emergency power to the president that any declared emergency would automatically expire after 30 days (or some other reasonably short period) if not ratified by Congress. Some wiggle room could be provided in the event of an emergency so severe as to prevent Congress from convening, but any such carefully drafted provision would be inapplicable to an emergency declaration like Trump’s.

Litigation Hurdles

Congress was not that far-sighted. Will the courts save us? Perhaps, but two sorts of hurdles—both of the Supreme Court’s making—could slow or stop litigators’ efforts to enlist the courts in blocking Trump’s wall.

First are doctrines—most prominently standing and ripeness—that limit who may sue in federal court and when. Although conservative justices champion these limits in the name of separation of powers and judicial restraint, ironically, they do not rely on any clear constitutional text. The Constitution’s Article III empowers federal courts to hear “cases” and “controversies,” and from this thin reed the Court’s conservatives have constructed a procedural obstacle course for plaintiffs seeking to vindicate even concededly valid legal claims.

Consider the first lawsuit filed—on behalf of three Texas landowners and a Texas environmental organization whose members will be harmed by Trump’s border wall. The landowners claim that the administration plans to use its emergency declaration to authorize seizing their land. Although the federal government has the power of eminent domain, the 1952 Steel Seizure Case—which arose during a genuine national crisis—makes clear that the president cannot exercise such a power on his own. Even so, one can imagine a court telling the landowner plaintiffs that their claims lack ripeness—that they cannot have their claims adjudicated until the government actually attempts to oust them.

To be sure, the Texas landowner plaintiffs have an unusually strong argument for ripeness. For example, plaintiff Nayda Alvarez received letters from US Customs and Border Protection in September 2018 and January 2019 respectively seeking access to her land to conduct a survey and informing her that the government anticipates filing papers to exercise eminent domain. If the courts faithfully apply the law of ripeness, her case ought to proceed without delay.

However, the Supreme Court’s ripeness and standing precedents are notoriously easy to manipulate by judges and justices who are determined to reach a preconceived conclusion. Even if the lower courts allow a suit against the administration to proceed, it is easy to imagine the Supreme Court using procedural doctrines to toss it.

Consider the 2011 ruling in Clapper v. Amnesty International USA. The federal appeals court said that rights organizations had legal standing to sue to block an unlawful program of government wiretapping, but the Supreme Court, in an opinion by Justice Alito, reversed that ruling, because the allegation of illegal eavesdropping was “too speculative.” If that sounds like a Catch-22, it was: one reason the plaintiffs could not definitively prove that their particular conversations were intercepted was that the eavesdropping program was covert. Nonetheless, Justice Alito callously dismissed the claim as alleging a mere “self-inflicted” harm.

It is thus entirely possible that the lower courts will faithfully apply existing case law to vindicate the challenges to Trump’s emergency, only to see the Supreme Court reverse on technical grounds. For example, the Court might find that the Texas landowners have standing to object to the taking of their land but not to challenge the emergency declaration itself, because a White House fact sheet asserts that the government will not use money it reallocates via the emergency declaration until after it exhausts other sources of funding.

Even if the high Court allows one or more cases to proceed past the procedural hurdles, it could eventually approve Trump’s emergency declaration by invoking doctrines of deference—as it did last June when it upheld (the third version of) Trump’s Travel Ban. There, five justices blinded themselves to Trump’s repeated statements of anti-Muslim animus to treat the ban as though it had emanated from a normal administration. Likewise here, one could imagine five justices blinding themselves to Trump’s anti-Latino animus and the absence of any genuine emergency at the southern border, in light of the fact that normal administrations have also stretched the notion of emergency powers beyond the ordinary meaning of the word.

Popular Responsibility

Last week more than 2/3 of the members of each house of Congress voted in favor of legislation to fund the government despite the fact that it included less than $1.4 billion for what the measure calls “primary pedestrian fencing” at the southern border. Although Senate majority leader McConnell announced President Trump’s intention to declare a national emergency at the same time that he announced the president’s willingness to sign the budget measure, wall funding does not appear to have been essential to Republican Senators’ agreement; after all, the Senate unanimously passed a similar measure in December.

Nonetheless, as noted above, there is no likelihood of new legislation clawing back the president’s emergency powers, because more than a third of the members of Congress fear a primary challenge from a Trump loyalist. While there are many ways in which our system of government fails to represent the People, in this respect it succeeds: President Trump’s approval rating has consistently moved in a tight band around 40 percent—just enough to block action requiring support from 2/3 of the public.

Thus, we must add one more culprit to the list of actors who are enabling the current occupant of the oval office to, in the cautionary words of Alexander Hamilton, “commence [as a] demagogue, and end[ as a] tyrant[].” In addition to the childish egotist in the White House, an obsequious leadership of the onetime Party of Lincoln, and a supine Supreme Court, we can thank roughly two in five of our fellow citizens for the fact that the US continues its slouch towards autocracy.

Michael C. Dorf is the Robert S. Stevens Professor of Law at Cornell University and co-author, most recently, of Beating Hearts: Abortion and Animal Rights. He blogs at dorfonlaw.org.

]]> Cornell law professor Michael C. Dorf comments on President Trump’s declaration of a national emergency after Congress denied him most of the funding he requested for a border wall. Dorf describes the legal framework that allows the president to do so ... Cornell law professor Michael C. Dorf comments on President Trump’s declaration of a national emergency after Congress denied him most of the funding he requested for a border wall. Dorf describes the legal framework that allows the president to do so even in the absence of an emergency and points out that combined actions of Congress, the courts, and the People have created this situation. Verdict full false 11:29 21459 opinionsupport@justia.com (Justia Inc)law,news,politics,legal,commentary https://verdict.justia.com/2019/02/06/justifying-external-support-for-regime-change-in-venezuela Wed, 06 Feb 2019 05:01:32 +0000 https://verdict.justia.com/?p=21432 https://verdict.justia.com/2019/02/06/justifying-external-support-for-regime-change-in-venezuela#respond https://verdict.justia.com/2019/02/06/justifying-external-support-for-regime-change-in-venezuela/feed 0 Cornell law professor Michael C. Dorf comments on the recognition by the United States and some other constitutional democracies of Juan Guaidó as Venezuela’s legitimate leader pending new elections. Dorf points out that many countries suffer under incompetent, corrupt, and authoritarian leaders just as Venezuela did under Nicolás Maduro, yet constitutional democracies typically do not rally behind the ouster of those leaders. What makes Maduro’s case different?

Venezuela has suffered through two decades of incompetent, corrupt, and authoritarian socialist rule, first under Hugo Chávez and, since 2013, under Nicolás Maduro. Seeking to restore democracy and prosperity, two weeks ago Juan Guaidó, the president of the Venezuelan National Assembly, declared himself the country’s acting president pending new elections. Guaidó argues that Maduro’s victory in a rigged and illegitimate election left the presidency vacant and that under such circumstances the constitution vests power in the National Assembly’s leader.

The US and some of the world’s other constitutional democracies now recognize Guaidó’s authority, even as countries such as China and Russia are standing by Maduro. Given the risk of domestic unrest, civil war, and even great-power conflict reminiscent of the Cuban missile crisis, the stakes in Venezuela are enormous. One can only hope that the Trump administration coordinates any further words and deeds regarding Venezuela with the sober leaders of allied nations.

Meanwhile, the global response to Guaidó’s declaration raises a question of justification. Many countries suffer under incompetent, corrupt, and authoritarian rulers. Given that the international community does not generally seek their ouster, what makes Maduro different?

Pragmatic Limits

In asking that question, I do not mean to engage in “whataboutism,” a practice by which one deflects even extremely serious charges by making similar charges about others. The adage two (or more) wrongs don’t make a right often suffices to rebut whataboutism.

That said, one can ask in good faith why the US and other constitutional democracies should support displacing Maduro but not, say, the Saudi royal family or Kim Jong-un.

Part of the answer is practical. Admittedly, the Trump administration’s eagerness to ignore the apparent role played by Saudi crown prince Mohammad Bin Salman in the murder of US permanent resident Jamal Khashoggi is shameful. But even a tougher line—pressing the Saudis for a change in the line of royal succession, for example—would leave in place an autocratic and unelected regime. Why not withdraw recognition of the legitimacy of the whole Saudi monarchy?

Realpolitik provides the best explanation. In light of the Syrian civil war, the counter-revolution in Egypt, and the destabilization of Libya, foreign policy makers will be understandably cautious before repeating the enthusiasm for democratic reform that greeted the Arab Spring in 2011.

Likewise, it would be folly to seek Kim’s overthrow, given that his regime possesses nuclear weapons and that millions of South Koreans live within the North’s conventional artillery range. We can say, on the one hand, that ideally all people should live under liberal democratic regimes, while recognizing, on the other hand, that the sorts of measures any outside forces might take to try to transform authoritarian regimes into liberal democratic ones would likely fail and end up doing more harm than good.

Truth in Advertising and Sham Constitutions

Might there be further reasons to distinguish Maduro from other authoritarians? Perhaps one might argue that neither Saudi Arabia nor North Korea holds itself out as democratic, whereas Venezuela does. In this view, when the US and other outside actors recognize Guaidó rather than Maduro, they are not imposing external values on Venezuelans; rather, they are saying that under Venezuela’s own constitutional principles, Maduro lacks legitimacy. By denying Maduro’s legitimacy, the democratic world would be applying a principle of truth in advertising.

Yet to draw that line we need to take account of the fact that even some obviously dictatorial regimes also claim to be democracies. Consider North Korea, which styles itself the Democratic People’s Republic of Korea. Article 6 of its constitution proclaims: “The organs of State power at all levels . . . are elected on the principle of universal, equal and direct suffrage by secret ballot.” Article 67 says: “Citizens are guaranteed freedom of speech, the press, assembly, demonstration and association.”

Putting aside pragmatic grounds for non-intervention, why don’t democratic countries have at least as strong a case for displacing Kim Jong-un as their case for displacing Maduro?

There may be no good answer to that question, but if there is one, it begins by recognizing a difference between real liberal democratic constitutions that are being violated—as in Venezuela—and what legal scholars David Law and Mila Versteeg call “sham constitutions.” North Korea—in which the gap between what “the country promises in its constitution and what it delivers in practice” is enormous—obviously has a sham constitution.

Indeed, the sham nature of North Korea’s constitution is apparent even on the face of the document. Although it purports to enshrine various liberal rights, the constitution’s overall tone is one of over-the-top communist propaganda. Consider this description of the state’s founder in the Preamble: “Comrade Kim Il Sung was a genius in ideology and theory, a master of leadership art, an ever-victorious iron-willed brilliant commander, a great revolutionary and statesman and a great man.”

In addition, the North Korean constitution contains further clues that the liberal rights it purports to recognize are not intended to be taken seriously. No truly liberal democratic constitution contains anything like the North Korean constitution’s Article 12: “The State adheres to the class line and strengthens the dictatorship of the people’s democracy so as to firmly defend the people’s power and socialist system against all subversive acts of hostile elements at home and abroad.”

Accordingly, we can conclude that the liberal democratic provisions of the North Korean constitution were never meant to be taken seriously. Denying recognition to Kim on the ground that he is an authoritarian would hold him to a commitment neither he nor his regime ever really made. By contrast, Maduro maintains the pretense of democratic legitimacy and thus, it can be argued, can and should be held accountable to that standard.

Democracy’s “Uncanny Valley”

We might regard the distinction between betrayals of democracy—as in Venezuela—and sham constitutionalism—as in North Korea—as akin to the so-called uncanny valley in human reactions to humanoid robots. Most people feel uneasy when seeing or interacting with robots that are quite close in appearance and manner to actual humans but still not perfect simulations. In contrast, we do not generally have the uneasy feeling in response to other humans. Meanwhile, non-humanoid robots that do not come close to approximating real humans do not evoke this response either. We may even find them cute. Think of Wall-E or R2D2. The uncanny valley refers to revulsion towards close-but-no-cigar imitation humans. In drawing this analogy, I am suggesting that there may be something similarly creepy about the space between real democracy and non-democracy.

To be clear, democracy’s uncanny valley matters, but it is hardly the only thing that matters. A dictatorial regime that violates basic human rights openly thereby avoids the sin of betraying democracy; yet we would hardly deem it praiseworthy on that basis; depending on the severity of the rights violations and the sorts of pragmatic considerations discussed above, we might well conclude that external actors would be justified in seeking regime change.

Nonetheless, Maduro can and should be criticized for his betrayal of Venezuela’s constitutional democracy. Seeing that betrayal as a separate additional harm—beyond his ruination of the country’s economy—helps explain why countries (including the US) that do not seek to delegitimize even worse tyrants have a special reason to condemn him for plunging Venezuela into democracy’s uncanny valley.

Michael C. Dorf is the Robert S. Stevens Professor of Law at Cornell University and co-author, most recently, of Beating Hearts: Abortion and Animal Rights. He blogs at dorfonlaw.org.

]]> Cornell law professor Michael C. Dorf comments on the recognition by the United States and some other constitutional democracies of Juan Guaidó as Venezuela’s legitimate leader pending new elections. Dorf points out that many countries suffer under inc... Cornell law professor Michael C. Dorf comments on the recognition by the United States and some other constitutional democracies of Juan Guaidó as Venezuela’s legitimate leader pending new elections. Dorf points out that many countries suffer under incompetent, corrupt, and authoritarian leaders just as Venezuela did under Nicolás Maduro, yet constitutional democracies typically do not rally behind the ouster of those leaders. What makes Maduro’s case different? Verdict full false 8:39 21432 opinionsupport@justia.com (Justia Inc)law,news,politics,legal,commentary https://verdict.justia.com/2019/01/23/how-should-the-law-address-illicit-motives-in-the-age-of-trump Wed, 23 Jan 2019 05:01:23 +0000 https://verdict.justia.com/?p=21392 https://verdict.justia.com/2019/01/23/how-should-the-law-address-illicit-motives-in-the-age-of-trump#respond https://verdict.justia.com/2019/01/23/how-should-the-law-address-illicit-motives-in-the-age-of-trump/feed 0 Cornell law professor Michael C. Dorf comments on a case arising from the Trump administration’s decision to add a citizenship question to the 2020 census questionnaire—a case the US Supreme Court had on its calendar for oral arguments until late last week, when the federal district judge issued an opinion and enjoined the government from including the question. Despite the original issue presented in the case (a technical one about the scope of discovery) being made moot by the district court opinion, Dorf discusses the remaining and greater issue of how to discern and address illicit government motives.

Until late last week, the Supreme Court was preparing to hear oral argument in a case presenting the question whether Federal District Judge Jesse Furman erred by ordering discovery outside of the administrative record to discern the motives behind the Trump administration’s decision to add a question concerning citizenship to the 2020 census. In an unusual move, the Court had agreed to hear the discovery dispute last November—before Judge Furman had completed his consideration of the merits. In the interim, he conducted a trial.

Last week, Judge Furman issued a 277-page opinion setting forth his findings of fact and conclusions of law. That opinion concludes that Secretary of Commerce Wilbur Ross committed multiple violations of the Administrative Procedure Act (APA). It enjoins the government from including a citizenship question on the census, at least absent substantial additional administrative homework. Notably, Judge Furman made his APA ruling “without relying on extra-record evidence.” Accordingly, the plaintiffs asked the Supreme Court to dismiss the discovery dispute as moot. The Court quickly responded by removing the case from the oral argument calendar and suspending briefing.

The census case as a whole may well return to the high Court’s docket for consideration of the merits of Judge Furman’s finding of an APA violation. As his opinion observes, “the integrity of the census is a matter of national importance,” because “the population count has massive and lasting consequences.” Thus, yesterday the Solicitor General declared his intention to seek expedited review so that the high Court can resolve the merits before it recesses at the end of June.

Meanwhile, the mooted issue warrants further consideration. In the balance of this column, I first explain why certain sorts of government motive questions are vexing in general; I then ask whether the calculus should shift due to the pervasive bad faith of the Trump administration.

The Legal Relevance of Motive

In its petition to the Supreme Court last fall, the government contended that the discovery dispute in the census case presented the question of the circumstances under which a district court may allow discovery outside the administrative record in order to “probe the mental processes of the agency decisionmaker.” That is a procedural question, but it connects to a more fundamental substantive one: When does the mental state of a government actor affect the legality of the government’s action?

We know that the answer is not never. For example, under longstanding precedents interpreting the constitutional principle of equal protection, a facially neutral law or policy that has a disparate impact based on some illicit criterion (such as race or sex) will be subject to heightened judicial scrutiny if the government adopted the law or policy for the purpose of discriminating based on that illicit criterion. As the Supreme Court pithily explained in a 1979 case, the question in such a case is whether “the decisionmaker . . . selected or reaffirmed a particular course of action at least in part ‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable group.”

Motive questions can arise in statutory cases as well. The APA authorizes a reviewing court to set aside agency action that is arbitrary or capricious. Whether that standard is met will sometimes depend on whether the agency decision maker(s) acted in bad faith, as the Supreme Court recognized in a 1971 case. The government in its brief in the now-moot discovery case before the Supreme Court argued that the bad faith doctrine permits extra-record review only in very narrow circumstances, but even it acknowledged that government motive can be relevant to a determination of the lawfulness of agency action under the APA.

Two Problems with Government Motive Tests

It should not be at all surprising that different legal consequences can attach to an action, depending on the motive behind the action. Early in his 1881 magnum opus, The Common Law, Oliver Wendell Holmes, Jr., dramatized the importance of motivation in the law with a canine example. “Even a dog,” Holmes observed, “distinguishes between being stumbled over and being kicked.” The difference between an unavoidable accident and a malicious action that has the same result could be the difference between no liability and a substantial prison sentence.

Nonetheless, government motive tests are controversial for at least two reasons. First, frequently the government decision maker is a collective body like a legislature, rather than a single mind. While even one person’s motives may be mixed, discerning the intention behind a decision taken by hundreds of people will usually be more a matter of construction than discovery.

Second, in purely private disputes and criminal prosecutions, the motive question typically arises because a judge or jury needs to assess retrospective liability. Depending on the defendant’s mental state, he may need to pay damages, or, in a criminal case, go to prison. By contrast, cases involving government motive typically arise (as in the census case) when the plaintiff seeks an injunction. That can then lead to a tricky remedial question.

Consider a stylized example. Suppose that a city council decides to site a sewage treatment plant near a predominantly minority neighborhood. Residents of the neighborhood sue and prove that several council members voted to put the treatment plant where they did out of racial animus. They acted because rather than in spite of race. The city will be properly enjoined from siting the plant there. But for how long? What if the racist council members are defeated in the next election, but the city, still in need of a sewage treatment plant, hires an outside expert who concludes that the original site best accommodates the city’s needs, including the cost of acquiring land? Does that purge the taint of the original decision? What if the council’s membership had not changed in the interim?

Puzzles such as these have led some jurists and scholars to question whether subjective motive should ever be the basis for invalidating an otherwise permissible government action. The doubters have not prevailed; government motive tests remain; nonetheless, judges understandably deploy them cautiously.

The Trumpian Complication

Should judges abandon that caution in the face of the Trump administration? The Supreme Court’s ruling in the travel ban case last June is instructive.

The travel ban is not that different from my hypothetical sewage treatment plant example. By the time the case got to the Supreme Court, the government had done sufficient homework to come up with at least a prima facie plausible explanation for the third version of the ban. However, everyone knew that the ban originated with then-candidate Donald Trump’s call for a “total and complete shutdown of Muslims entering the United States.” Did the homework undertaken by the Department of Homeland Security, the State Department, and various US intelligence agencies purge the taint of Trump’s religious animus?

The Court thought so. Chief Justice Roberts wrote for the 5-4 majority that it would be inappropriate to conduct a “searching inquiry into the persuasiveness of the President’s justifications” given “the broad statutory text and the deference traditionally accorded the President in” matters of border control and national security. Concurring, Justice Kennedy added that even when “the statements and actions of Government officials are not subject to judicial scrutiny or intervention,” those officials must “adhere to the Constitution and to its meaning and its promise,” including its prohibition on religious discrimination. Roberts, Kennedy, and the rest of the Supreme Court majority were effectively saying that in some spheres, responsibility for adhering to the Constitution and laws rests with the president, not the courts.

That might be a defensible judgment during a normal presidential administration, but in the current environment, it licenses lawlessness.

Across a wide range of areas, federal agencies appear to be providing pretexts for illicit motives and impetuous statements. Candidate Trump calls for a Muslim ban; his advisers reverse-engineer entry restrictions to have a disparate impact on Muslims. President Trump tweets that transgender individuals will not be permitted to serve “in any capacity” in the armed forces; his Defense Department tries to construct a set of exclusions that can withstand legal challenge. Someone in the administration (if not Trump himself) concludes that asking a citizenship question on the census will under-count persons in Democratic-leaning districts;  Commerce Secretary Ross seeks (as Judge Furman put it in last week’s ruling) to “launder” the question through the Justice Department on the pretense that the latter needs citizenship information to enforce the Voting Rights Act.

In order to prevent courts from second-guessing elected officials in areas where judges may lack expertise or political legitimacy, the law sets the threshold for a judicial finding of illicit government motive very high. In my view, the Trump administration should lose most if not all of the illicit motive cases against it, because even the high threshold has been crossed. However, as the travel ban litigation illustrates, many jurists are willing to accept a patina of legality rather than impugn the motives of the president.

Deference to the executive branch and the presumption of government regularity are important tools of judicial self-restraint. But there comes a point where even a restrained judiciary that does not wish to overstep its authority must recognize that a mendacious president and his lackeys are playing the courts. We have reached that point. Indeed, we are well past it. Trump’s relentless dishonesty and the willingness of his administration to cloak his malice in legal jargon should suffice to overcome the deference ordinarily due a president.

Michael C. Dorf is the Robert S. Stevens Professor of Law at Cornell University and co-author, most recently, of Beating Hearts: Abortion and Animal Rights. He blogs at dorfonlaw.org.

]]> Cornell law professor Michael C. Dorf comments on a case arising from the Trump administration’s decision to add a citizenship question to the 2020 census questionnaire—a case the US Supreme Court had on its calendar for oral arguments until late last ... Cornell law professor Michael C. Dorf comments on a case arising from the Trump administration’s decision to add a citizenship question to the 2020 census questionnaire—a case the US Supreme Court had on its calendar for oral arguments until late last week, when the federal district judge issued an opinion and enjoined the government from including the question. Despite the original issue presented in the case (a technical one about the scope of discovery) being made moot by the district court opinion, Dorf discusses the remaining and greater issue of how to discern and address illicit government motives. Verdict full false 10:00 21392 opinionsupport@justia.com (Justia Inc)law,news,politics,legal,commentary https://verdict.justia.com/2019/01/09/why-facebooks-hate-speech-policy-makes-so-little-sense Wed, 09 Jan 2019 05:01:31 +0000 https://verdict.justia.com/?p=21340 https://verdict.justia.com/2019/01/09/why-facebooks-hate-speech-policy-makes-so-little-sense#respond https://verdict.justia.com/2019/01/09/why-facebooks-hate-speech-policy-makes-so-little-sense/feed 0 Cornell law professor Michael C. Dorf comments on Facebook’s global efforts to block hate speech and other offensive content and explains why formula-based policy necessarily makes very little sense. As Dorf explains, accurate determinations of hate speech require cultural understanding and evaluations of cases on an individual basis, but this approach also necessarily injects individual bias into those decisions. Thus, Facebook’s policy, while not ideal, may be but one of a handful of inadequate options.

A recent New York Times article disclosed details of Facebook’s global effort to block hate speech and other ostensibly offensive content. As the article explains, Facebook has good reason to worry that some people use its platform not just to offend but to undermine democracies and even to incite deadly violence. Yet Facebook’s response seems curious, even perverse. Presumably well-meaning young engineers and lawyers gather every other week to update thousands of PowerPoint presentations, rules, and guidelines for its roughly 15,000 relatively low-skilled “moderators” to apply formulaically to sort permissible from verboten posts—sometimes using Google Translate for material in languages they do not know.

It is easy to condemn Facebook’s approach to hate speech as ham-fisted. It is considerably harder to fashion a perfect alternative. Below I consider the causes and effects of Facebook’s policy. As I shall explain, the issues it raises implicate tough questions regarding free speech more broadly, both in the US and elsewhere.

Private Versus Public Censorship

Most countries—including most constitutional democracies—forbid hate speech. The US does not.

As construed by the Supreme Court in cases like R.A.V. v. St. Paul and Virginia v. Black, the First Amendment protects very offensive speech against censorship, unless the speech in question constitutes incitement—strictly defined in the leading case of Brandenburg v. Ohio to cover only those words and symbols that are intended and likely to inspire “imminent lawless action.” The Constitution even protects hate speech that has an historical association with violence. The defendants in each of the cases just cited were charged with cross-burning, and yet they all won.

Accordingly, in the US, the government may neither directly censor hate speech nor require private companies like Facebook to do so. However, the Constitution does not apply to private actors, and Facebook has adopted its policy voluntarily. Thus, the policy does not raise a constitutional question here.

Yet given Facebook’s reach, one might worry that it exercises the kind of power that governments typically do and thus should be subject to the same sorts of restrictions that apply to governments—including constitutional limits. In the early twentieth century, some progressive thinkers, including Louis Brandeis, who would go on to become a leading free-speech champion on the Supreme Court, made just that sort of argument. Highly concentrated private power, these progressives said, can pose at least as great a threat to liberty as government power does. If Facebook is effectively the only game in town, then it does not much matter from the user’s perspective whether Facebook censors in response to a government mandate or of its own volition.

Moreover, it is not fully accurate to say that Facebook censors speech “voluntarily.” Fewer than fifteen percent of Facebook’s users live in the US. Hundreds of millions live in countries that forbid hate speech. As a recent European Union report underscores, much of the world understands human rights treaties not only to permit censorship of hate speech but to affirmatively require it.

It thus seems likely that Facebook censors hate-speech speech globally in response to legal obligations to do so in many of the countries in which it operates. Americans who prefer the no-holds-barred approach of our constitutional case law may worry that Europeans and others who take a more restrictive view are effectively imposing their hate-speech regime on us.

Whether we should prefer the no-holds-barred approach is a highly contested question. In this brief column, I can hardly do it justice, so I shall merely refer interested readers to a couple of excellent books arguing opposite sides of the question. Professor Jeremy Waldron of Oxford and NYU Law School defends the European approach in The Harm in Hate Speech. New York Law School Professor (and former ACLU President) Nadine Strossen defends the US approach in HATE: Why We Should Resist It With Free Speech, Not Censorship.

If you find Strossen persuasive, then you may well regard the export of European-style hate-speech censorship to the US an unfortunate consequence of the fact that the US Constitution does not apply to private actors like Facebook—the taking advantage of a kind of loophole. If you find Waldron persuasive, you might be grateful for that loophole, but you also might be concerned about the fact that the people doing the censoring are ultimately accountable only to Facebook’s shareholders rather than to the American People via the democratic process.

Rules Versus Standards

In addition to questioning the fact that Facebook censors hate-speech, one might worry about the way it does so. Whether any particular Facebook post poses a genuine danger will typically require a context-sensitive judgment by a person familiar with the language, culture, and locale in question. The rigid application of Facebook’s rules, by contrast, inevitably results in a pattern of grossly under- and over-inclusive censorship—ensnaring innocent speech while dangerous material slips the net.

So why does Facebook do it this way? The short answer is that the alternative to rigid rules—a flexible standard—has its own mirroring vice: flexible standards vest discretion in whoever makes the decision in each case, and such discretion will be exercised inconsistently from decision maker to decision maker, while also being subject to abuse. The sort of person most likely to understand the contextual meaning of a Facebook post will also typically have a political perspective or other bias that can infect the decision whether to censor it.

In regulating speech via rigid rules rather than flexible standards, Facebook follows roughly in the path of Supreme Court case law construing the First Amendment. Even when government may limit speech—as in licensing public property for expressive activities such as marches and rallies—it may only do so pursuant to rules sufficiently determinate to avoid granting the licensor “unbridled discretion.”

To be sure, there is an important additional limit in the First Amendment context. Licensors must use relatively determinate rules that aim only at the time, place, or manner of speech, not at its content. By contrast, the Facebook censors take aim at content.

But even First Amendment law occasionally allows restricting speech based on content—especially where the speech falls into one of a small number of what the Court has identified as categories of “unprotected speech.” How does the Court draw the boundaries? In a near-unanimous 2010 case, Chief Justice Roberts asserted that the unprotected categories were historically outside of the “freedom of speech” to which the First Amendment refers, but, with due respect, that is at best law office history. The Court has made no serious effort to check what my colleague Professor Steven Shiffrin aptly calls its “frozen categories” against the understanding of the People in 1791 (when the states ratified the First Amendment) or in 1868 (when they ratified the Fourteenth Amendment, which makes the First Amendment enforceable against the states).

The Supreme Court’s categories of unprotected speech in fact arose based on what First Amendment scholar Melville Nimmer described (in an extremely important 1968 article in the California Law Review) as a process of “definitional balancing,” in which the Court weighed the value of categories of speech against the harm they caused for purposes of deciding whether to count a category as protected at all. By focusing on the categorical level, Nimmer argued, courts could eschew the problematic exercise of discretion inherent in “ad hoc balancing”—that is, balancing the costs and benefits of speech in particular cases.

As Nimmer himself explained, the categorical approach is hardly perfect, but the vices it has are the vices typical of rules: under- and over-inclusiveness as applied to unanticipated or unusual cases. And it is that very same judgment—a greater willingness to tolerate the vices of rules than to tolerate the vices of standards where speech is concerned—that underlies Facebook’s efforts to drastically curtail the discretion it gives its moderators.

So yes, Facebook’s rules are ridiculous. But given the legal imperative to censor hate speech in many of the countries in which it operates, Facebook may not have any especially good alternatives.

Michael C. Dorf is the Robert S. Stevens Professor of Law at Cornell University and co-author, most recently, of Beating Hearts: Abortion and Animal Rights. He blogs at dorfonlaw.org.

]]> Cornell law professor Michael C. Dorf comments on Facebook’s global efforts to block hate speech and other offensive content and explains why formula-based policy necessarily makes very little sense. As Dorf explains, Cornell law professor Michael C. Dorf comments on Facebook’s global efforts to block hate speech and other offensive content and explains why formula-based policy necessarily makes very little sense. As Dorf explains, accurate determinations of hate speech require cultural understanding and evaluations of cases on an individual basis, but this approach also necessarily injects individual bias into those decisions. Thus, Facebook’s policy, while not ideal, may be but one of a handful of inadequate options. Verdict full false 8:54 21340 opinionsupport@justia.com (Justia Inc)law,news,politics,legal,commentary https://verdict.justia.com/2018/12/21/obamacare-nonseverability-ruling-exposes-uncertainty-in-our-conception-of-law Fri, 21 Dec 2018 05:01:59 +0000 https://verdict.justia.com/?p=21313 https://verdict.justia.com/2018/12/21/obamacare-nonseverability-ruling-exposes-uncertainty-in-our-conception-of-law#respond https://verdict.justia.com/2018/12/21/obamacare-nonseverability-ruling-exposes-uncertainty-in-our-conception-of-law/feed 0 Cornell law professor Michael C. Dorf comments on the recent ruling by a federal district judge in Texas striking down the entirety of the Affordable Care Act and argues that the judge relies on a highly unorthodox (and erroneous) interpretation of the doctrine of “severability.” As Dorf explains, there is a notable lack of judicial consensus as to what courts actually do when they declare laws unconstitutional, despite that the Supreme Court established its power of judicial review over two centuries ago in <em>Marbury v. Madison</em> (1803).

In the wake of a Supreme Court ruling in a Michigan land dispute earlier this year, I explained in a column for this site that the non-ideological divisions between the justices on display in the case reflected disagreement on a deep question about the very nature of law: How general must a legislative command be to count as a law? I asked: “How many cases must a law target to count as general?  Two? Three? Ten? What if a law targets only one case, but that case is a class action involving many class members?” Despite the fundamentality of these questions, opinions by US courts provide little guidance.

A recent high-profile case reveals yet more uncertainty about the very nature of law in the US. The ruling by a federal district judge in Texas striking down the entirety of the Affordable Care Act (ACA) rests on a highly unorthodox view of “severability”—a doctrine that aims to answer the following question: when a court finds that some legal provision violates the Constitution, to what extent does its unconstitutionality infect otherwise valid portions of the law? Although Judge O’Connor’s reasoning will likely be reversed on appeal, severability doctrine itself is mysterious, because we have no firm agreement about what exactly it is that our courts do when they declare laws unconstitutional.

The Latest Obamacare Ruling

In 2012, in NFIB v. Sebelius, the Supreme Court rejected the claim that Congress lacked the power to impose an individual mandate to purchase health insurance. Chief Justice Roberts and the Court’s four Democratic appointees concluded that the mandate fell within the power of Congress to tax, because the mandate was enforced by a tax. People had the option of paying the tax or purchasing health insurance. As part of a package of changes to federal tax laws enacted late last year, Congress reset to $0 the tax owed for failure to obtain mandated insurance. Thus, Judge O’Connor concluded, the mandate could no longer be seen as an exercise of the taxing power and is now unconstitutional.

That reasoning is highly dubious in its own right. As Professor Martin Lederman explained, a much more straightforward understanding of Congress’s action in late 2017 is that it eliminated the mandate, not rendered it unconstitutional.

Judge O’Connor’s contrary conclusion rests on the fact that Congress only zeroed out the penalty but left the obligation on the books. He says that some people will feel compelled to comply with the law, even if they could avoid compliance without risking any financial or other sort of penalty.

Yet the number of such compulsive rule-followers is undoubtedly small enough to undercut the next, even more dubious aspect of Judge O’Connor’s ruling, regarding nonseverability. He says that the Congress that enacted the mandate in 2010 thought it was essential to the operation of the rest of the law, so without a mandate the whole law must fall.

But whatever views about the relation of the mandate to the rest of the law that Congress may have had in 2010 were views about a mandate backed by a substantial sanction, not about a mandate backed by no sanction. Only one Congress could have had a view about the essentiality or non-essentiality of a mandate backed by no sanction: the 2017 Congress that zeroed out the tax for noncompliance with the mandate. And while many of the Republicans who voted for that change undoubtedly wished they had the votes to repeal the whole ACA, there is no evidence that Congress thought that’s what it was doing. Rather, as indicated by news reports at the time, Congress believed itself to be eliminating the mandate.

The Tension Between Nonseverabilty and Textualism

Judge O’Connor’s views about nonseverability are more radical still. Echoing the joint dissent of four conservative justices in the 2012 NFIB case, Judge O’Connor invalidates the whole of the ACA, not just those provisions governing the individual insurance market, which could fairly be said to be at least somewhat interrelated with the mandate. He strikes down provisions relating to wholly unrelated programs, such as Medicare, Medicaid, and employer-provided health insurance.

Can that approach be justified? Although Judge O’Connor’s application of the principle is flawed, at least in theory one could see the logic of wholesale invalidation. Suppose that Congress is considering environmental legislation that will lead to the loss of jobs for coal miners; in order to obtain support from senators and representatives from West Virginia and other coal-mining states, the legislation also allocates funding to military bases and contractors in those states; and finally, suppose that the resulting statute contains a blanket nonseverability clause. Even though the environmental regulation is functionally unrelated to the funding for military bases and contractors, the nonseverability clause indicates that Congress wished the compromise to stand or fall together. If a court were to find a key provision of the environmental legislation invalid, it would invalidate the base funding and contractor provisions as well. Thus, nonseverability of functionally unrelated provisions is at least a conceptual possibility.

Congress rarely takes the foregoing sort of action, however, and in the absence of a nonseverability clause, courts are poorly positioned to infer that legislation must stand or fall as a single package. Indeed, the conservative justices who championed broad nonseverability in the 2012 ACA case have, in other contexts, explained why not.

The late Justice Scalia will be remembered most for his advocacy of originalism in constitutional cases and “textualism” in statutory cases. Although the Court has not adopted every aspect of Scalia’s textualism, he was quite influential in shifting the focus of attention in statutory cases from the intentions of Congress to the language it enacted. Speaking for a unanimous Court in a 1998 sexual harassment case, Justice Scalia summed up the now-prevailing view this way: “it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.”

Judge O’Connor’s nonseverabilty ruling in the latest Obamacare case and the nonseverability dissent that Justice Scalia co-authored in the 2012 Obamacare case both run away from textualism’s central contribution to modern statutory interpretation doctrine.

Where Do Laws Begin and End?

If Judge O’Connor’s approach to severability is wrong—and it is wrong—what approach should courts take? That question is harder to answer, because the very notion of severability assumes a common understanding of where laws begin and end for constitutional purposes. Surprisingly, we don’t have one.

The fundamental problem may be a mismatch between our theory and our practice of judicial review. In some other countries, constitutional courts have the power to strike down laws as such. In the US, by contrast, at least officially judicial review arises as a byproduct of the Constitution’s Supremacy Clause, which merely states a priority rule. As Justice Scalia put the point in the jurisdictional portion of his dissent from the 2013 ruling striking down the Defense of Marriage Act, US courts perform the role of deciding on the constitutionality of legislation “incidentally—by accident, as it were—when that is necessary to resolve the dispute before” them.

Scalia was right, but only technically. As a practical matter, in constitutional cases, US courts, and especially the Supreme Court, serve roughly the same function as foreign constitutional courts with the power of “abstract” judicial review outside the context of any concrete case: passing on the validity of legislation as a general matter. But because our courts have, as it were, retrofitted a power to declare laws unconstitutional onto a system in which officially they only resolve concrete disputes, awkwardness ensues at the boundary. Severability marks that boundary.

Consider that our courts treat particular applications of laws, and not just discrete linguistic subparts of the laws themselves, as generally severable. That approach reflects the preference for so-called as-applied litigation, but it can lead to puzzles. We have some idea of what it means for different parts of a law to be so interrelated that they must stand or fall together, but in what sense are different applications interrelated or not?

Or consider the difficulty presented in the current Obamacare challenge: a law that is supposedly rendered invalid by a subsequent amendment. Intervenors in the case argued that if indeed the 2017 change in the tax law rendered the ACA unconstitutional, then the tax law rather than the ACA should be held invalid. They relied on the following statement by the Supreme Court in the 1928 case of Frost v. Corporate Commission of Oklahoma:

the statute, before the amendment, was entirely valid. When passed, it expressed the will of the legislature which enacted it. Without an express repeal, a different legislature undertook to create an exception, but, since that body sought to express its will by an amendment which, being unconstitutional, is a nullity, and therefore powerless to work any change in the existing statute, that statute must stand as the only valid expression of the legislative intent.

Judge O’Connor distinguished Frost on the ground that the plaintiffs in Frost challenged the amendment to the statute, not the original statute, whereas the plaintiffs in his case challenged the original ACA. Yet while that logic might explain why Judge O’Connor was right not to invalidate the tax law, it casts doubt on his nonseverability holding itself. After all, no one in the case before him challenged the numerous provisions of the ACA that he invalidated along with the individual mandate.

What about omnibus legislation? Some state legislatures operate under single-subject rules, but no such limit applies to Congress, which frequently passes legislation that covers multiple subjects, sometimes amending provisions scattered across different titles of the US Code, adding wholly new Code sections, or both. Does a ruling that one provision of an omnibus law is invalid infect the entire omnibus law? Just those portions that deal with the same subject? And what about the pre-existing provisions they amend?

I do not mean to suggest that these questions cannot be answered. I do mean to suggest that existing severability doctrine has not sufficiently grappled with them. As noted above, the part of severability doctrine that inquires into Congress’s hypothetical counterfactual intent is problematic on grounds that conservative jurists themselves ought to recognize. But even the core of severability doctrine—which asks whether a law can function coherently without an invalid provision or application—is somewhat problematic too, because it rests on uncertainties over what exactly courts do when they judge laws unconstitutional.

The Supreme Court established its power of judicial review in 1803 in Marbury v. Madison. In that case the Court rendered unenforceable a provision of Section 13 of the Judiciary Act of 1789, but, tacitly, left other applications and sections of the Act in effect. It implicitly severed, albeit without explanation. Over two centuries later, we still do not have full agreement on the nature or scope of the Marbury power. It is thus not surprising that we also lack full agreement on its remedial implications.

Michael C. Dorf is the Robert S. Stevens Professor of Law at Cornell University and co-author, most recently, of Beating Hearts: Abortion and Animal Rights. He blogs at dorfonlaw.org.

]]> Cornell law professor Michael C. Dorf comments on the recent ruling by a federal district judge in Texas striking down the entirety of the Affordable Care Act and argues that the judge relies on a highly unorthodox (and erroneous) interpretation of the... Cornell law professor Michael C. Dorf comments on the recent ruling by a federal district judge in Texas striking down the entirety of the Affordable Care Act and argues that the judge relies on a highly unorthodox (and erroneous) interpretation of the doctrine of “severability.” As Dorf explains, there is a notable lack of judicial consensus as to what courts actually do when they declare laws unconstitutional, despite that the Supreme Court established its power of judicial review over two centuries ago in Marbury v. Madison (1803). Verdict full false 12:00 21313 opinionsupport@justia.com (Justia Inc)law,news,politics,legal,commentary https://verdict.justia.com/2018/12/12/double-jeopardy-case-in-supreme-court-is-about-more-than-trump Wed, 12 Dec 2018 05:01:05 +0000 https://verdict.justia.com/?p=21292 https://verdict.justia.com/2018/12/12/double-jeopardy-case-in-supreme-court-is-about-more-than-trump#respond https://verdict.justia.com/2018/12/12/double-jeopardy-case-in-supreme-court-is-about-more-than-trump/feed 0 Cornell law professor Michael C. Dorf discusses the double jeopardy question raised in <em>Gamble v. United States</em>, in which the US Supreme Court heard oral arguments last week, and explains how the extraordinary nature of the Trump presidency should inform judicial decision making. Building upon a point made in a 1985 <em>Columbia Law Review</em> article by Professor Vincent Blasi, Dorf argues that judges construing the Constitution and other legal texts in perilous times such as these should keep in mind that the rules they adopt will also operate in normal times.

If President Trump were to pardon Paul Manafort or other people who have been or may be indicted by Special Counsel Robert Mueller, prosecutors in New York or another state might respond by seeking indictments under state law. Would such a state prosecution be barred by the Constitution’s Double Jeopardy Clause? No, because there has long been a “separate sovereigns” exception to double jeopardy. Under that exception, a trial in federal court does not preclude a subsequent trial in state court for the same underlying conduct, nor vice-versa.

But what if the Supreme Court eliminates the separate sovereigns exception, as it was asked to do last week during the oral argument in Gamble v. United States? Might such a change in the law enable the president to immunize Manafort and other loyalists, and thus to protect himself from the Mueller investigation? Some observers have even suggested that Trump’s urgency in seeking the confirmation of now-Justice Kavanaugh was rooted in the president’s hope that Kavanaugh would cast a decisive vote for eliminating the separate sovereigns exception and thus for saving Trump’s hide.

Judging by the oral argument in Gamble, these concerns did not register at all with Kavanaugh or any of the other justices. The Court does not seem likely to eliminate the separate sovereigns exception. Moreover, even if the Court did overrule the exception, that would still leave plenty of room for a state prosecution of someone who received a pardon from Trump.

Nonetheless, the speculation about Gamble’s implications for the Mueller investigation provides a useful opportunity to think about how, if at all, the extraordinary nature of the Trump presidency should inform judicial decision making.

The Separate Sovereigns Exception and its Discontents

The Fifth Amendment’s Double Jeopardy Clause provides that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb.” The paradigmatic example of a Double Jeopardy violation is an indictment of a person for the exact same alleged crime for which he or she was previously acquitted. But the Clause also applies in other circumstances. A guilty plea to a lesser included offense (manslaughter, say) will usually preclude a charge for the broader offense (murder, say) based on the same underlying conduct. In certain circumstances, even a mistrial will entail protection against retrial pursuant to the Double Jeopardy Clause.

What justifies the separate sovereigns exception? It can be understood as an interpretation of the term “offense” in the Fifth Amendment. As the Supreme Court explained in the 1852 case of Moore v. People, when a state prosecution follows a federal one for the same underlying conduct, “it cannot be truly averred that the offender has been twice punished for the same offense, but only that by one act he has committed two offenses, for each of which he is justly punishable.”

The Moore case is deeply problematic today, because the underlying offense was sheltering an African American who had escaped from slavery. However, its separate sovereigns principle has been long accepted and applied in less fraught cases. Thus, in 1959, the Court, speaking through Justice Felix Frankfurter in Bartkus v. Illinois, reiterated that the separate sovereigns exception expresses a straightforward principle of American federalism.

Despite its pedigree stretching back into the mid-19th century, civil libertarians and others dislike the separate sovereigns exception. It feels fundamentally unfair, at least in a garden-variety criminal case, for the federal government to prosecute someone who has been acquitted in state court or vice-versa. Accordingly, in a case involving the application of the Double Jeopardy Clause to Puerto Rico in 2016, the odd couple of Justices Ginsburg and Thomas joined together in a concurrence to suggest that the separate sovereigns exception should be eliminated or substantially narrowed. Citing Alexander Hamilton in Federalist No. 82, Ginsburg and Thomas opined that the federal and state governments together comprise a single system of justice for double jeopardy purposes. We can assume that Ginsburg and Thomas voted to hear the Gamble case; because it takes four votes to grant review in the Supreme Court, at least two other justices must also be interested in reconsidering the separate sovereigns exception.

Original Meaning and Stare Decisis

It is not always easy to discern a justice’s substantive view based on the questions he or she asks at oral argument. Subject to that caveat, it appears highly unlikely that either Justice Alito or Justice Kavanaugh will vote to overturn the separate sovereigns exception. They each asked skeptical questions emphasizing the importance of stare decisis. Justices Sotomayor and Kagan also displayed something of an if-it-ain’t-broke-don’t-fix-it attitude.

At the other end of the spectrum, Justice Ginsburg appeared quite sympathetic to overruling the separate sovereigns exception. Consistent with his nearly-constant practice, Justice Thomas asked no questions, but he can be presumed to be with Ginsburg based on the Puerto Rico case concurrence.

In the middle were Chief Justice Roberts and Justices Breyer and Gorsuch, each of whom had some hard questions for each side, but of the three, only Justice Gorsuch seemed to be genuinely flirting with abandoning separate sovereigns. If I had to bet, I would say the government will win either 7-2 or 6-3.

Based on the substance of the argument, that result seems about right. The lawyer for Mr. Gamble faces three main obstacles. First, as noted, is stare decisis. More than one justice indicated that a great many Supreme Court decisions might come out differently if re-examined from scratch, and so there is no great urgency to revisit separate sovereigns. At best, Gamble’s attorney was able to show that the key precedents establishing the exception were issued before the Supreme Court concluded that the Double Jeopardy Clause binds the states—via incorporation through the Fourteenth Amendment—rather than just binding the federal government. Yet this response was not wholly effective; in the earlier period it would have been possible to hold that double jeopardy protections apply when a federal prosecution follows but not when it precedes state prosecution; however, that possibility was never even considered in the earlier cases, suggesting that the pre-incorporation status of the earlier precedents was never the key to the separate sovereigns doctrine.

Second, Gamble’s lawyer did not have a very good answer to an objection posed by Justice Kagan. His argument relied on the original understanding, rooted in English practice before American independence. Yet that practice, as he described it, would lead to double jeopardy protection even where the initial prosecution occurred in a truly foreign court. Several justices were very concerned about the prospect of precluding trial in the US for acts of terrorism based on an acquittal or conviction and light sentence in a foreign court.

Third, several justices were also concerned about other practical implications. Although successive prosecutions under the separate sovereigns exception can be unfair, they can also serve vital interests in justice. For example, when state or local prosecution is inept or, worse, racially biased, federal prosecution following a tepid state prosecution vindicates important national interests. Although Gamble’s lawyer tried to carve out narrower exceptions that would still allow such successive prosecutions in the event that the Court were to eliminate the broader separate sovereigns exception, he did not appear to persuade a majority of the justices that such an approach was worth destabilizing the law.

Trump’s Shadow Over the Case

And yet, we know that at least four justices think there was enough to the argument for eliminating the separate sovereigns exception to warrant agreeing to hear the case. If it is close, will the justices give any consideration to the potential impact on the Mueller investigation?

There does not appear to be any pressing reason for doing so. For one thing, even without the separate sovereigns exception, state prosecutions could proceed for substantially different conduct. Consider an extreme example. Suppose Trump were to pardon Jared Kushner for all federal crimes he may have committed. Even so, that would not give Kushner double jeopardy protection against prosecution for, say, evading New York taxes by filing a fraudulent return with the state. Even under the most generous reading of the double jeopardy right, it does not protect against prosecutions for substantially different conduct.

Moreover, even with respect to conduct that does overlap sufficiently to fall within the usual protection of the Double Jeopardy Clause, it is not clear that “jeopardy attaches” (to use the technical phrasing) when someone receives a pardon. Just as elimination of the separate sovereigns exception in general could be coupled with a carve-out for some class of civil rights cases, so it could include a carve-out for state prosecutions following a pardon.

Whether there should be a pardon exception in a regime with no general separate sovereigns exception poses a somewhat harder question. If the White House were not currently occupied by a monster, we would have good reason to think that in a world without a separate sovereigns exception, a federal pardon of a federal official should immunize its recipient against subsequent state as well as federal prosecution. Indeed, in such a world, we might worry about state prosecutions of a president or other high-ranking federal officials even apart from questions of double jeopardy and the pardon power. In normal times, state prosecution of high-ranking federal officials—even after they are out of office—could undermine the supremacy of federal law and the federal government. Imagine a 1960s prosecution in state court in the Deep South of federal officials in retaliation for their enforcement of federal civil rights laws.

To be sure, various immunity doctrines and the possibility of removal of certain cases to federal court mitigate the risk posed by such cases. And I do not mean to take a position on any particular real or hypothetical case. My main point here is that if jurists are to consider the legality of state prosecutions of federal officials in formulating general rules of law, they should be mindful of the fact that Trump will not always be president.

In a provocative 1985 article in the Columbia Law Review, Professor Vincent Blasi advocated what he called the “pathological perspective” in First Amendment cases. Freedom of speech, press, and assembly, Blasi argued, should protect basic democratic liberties against repressive excesses in periods of exaggerated crisis (such as the McCarthy era). Thus, even in normal times, courts ought to construe the First Amendment by thinking about what government might attempt in darker times.

Blasi’s advice makes sense, but so does its mirror image. Judges construing the Constitution and other legal texts in perilous times (like our own) should keep in mind that the rules they adopt will also operate in normal times. If a proposed rule of law would empower Alabama to undercut federal civil rights enforcement, then perhaps it should be avoided, even if it would also empower New York to rein in Donald Trump.

Fortunately, the oral argument in Gamble gives no indication that the justices will use the case as a vehicle for constraining or empowering state criminal prosecution of Trump, his business, or his associates. But should the temptation arise in a future case, the Court would do well to keep in mind what we might call the “anti-pathological perspective.”

Michael C. Dorf is the Robert S. Stevens Professor of Law at Cornell University and co-author, most recently, of Beating Hearts: Abortion and Animal Rights. He blogs at dorfonlaw.org.

]]> Cornell law professor Michael C. Dorf discusses the double jeopardy question raised in Gamble v. United States, in which the US Supreme Court heard oral arguments last week, and explains how the extraordinary nature of the Trump presidency should infor... Cornell law professor Michael C. Dorf discusses the double jeopardy question raised in Gamble v. United States, in which the US Supreme Court heard oral arguments last week, and explains how the extraordinary nature of the Trump presidency should inform judicial decision making. Building upon a point made in a 1985 Columbia Law Review article by Professor Vincent Blasi, Dorf argues that judges construing the Constitution and other legal texts in perilous times such as these should keep in mind that the rules they adopt will also operate in normal times. Verdict full false 11:24 21292 opinionsupport@justia.com (Justia Inc)law,news,politics,legal,commentary https://verdict.justia.com/2018/11/28/the-department-of-educations-title-ix-power-grab Wed, 28 Nov 2018 05:00:20 +0000 https://verdict.justia.com/?p=21207 https://verdict.justia.com/2018/11/28/the-department-of-educations-title-ix-power-grab#respond https://verdict.justia.com/2018/11/28/the-department-of-educations-title-ix-power-grab/feed 0 Cornell law professor Michael C. Dorf discusses the Department of Education’s recent <em>Notice of Proposed Rulemaking</em> rules requiring due process protections for those accused of sexual assault or harassment in Title IX cases. Dorf provides a history of Title IX, explaining how the Obama administration issued guidance and instituted reforms to how institutions should approach addressing allegations of such conduct. He acknowledges the Department of Education's shift in policy under the Trump administration that led to its proposed rulemaking issuance, and argues that the Department only has the authority to permit these additional due process protections in most instances, rather than outright require institutions to adhere to them.

The Department of Education (typically abbreviated as ED) recently issued a notice of proposed rulemaking regarding Title IX, the federal statute that forbids educational institutions receiving federal money from discriminating on the basis of sex. The proposed new rules would make it more difficult for colleges and universities to hold accountable those students who sexually assault or harass their fellow students.

Whether the proposed new rules strike the ideal balance between the interests of victims and the interests of people who may be wrongly or mistakenly accused of sexual harassment or sexual assault is a question that has already proven divisive. However, that policy question is not my main concern in this column. Instead, after explaining the key provisions of the proposed rules, I shall focus on an issue of law: Does Title IX give the ED the authority to mandate procedural rules that do not in any way appear to further the statute’s aim of sex equality in education?

Title IX, the Obama Policy, and the Trump Shift

First enacted in 1972, Title IX applies a broad prohibition on sex “discrimination under any education program or activity receiving Federal financial assistance.” It does not specifically refer to sexual harassment or sexual assault, but court rulings under Title IX and other federal anti-discrimination statutes make clear that an organization that fails to respond adequately to such offenses is culpable in that harassment or assault.

Faced with evidence that numerous (mostly female) students were the victims of sexual violence, the ED under President Obama issued guidance to covered institutions about how they should reform their approach to addressing allegations of such conduct. That guidance attracted criticism partly because it was not promulgated as a formal regulation but was instead embodied in a so-called “Dear Colleague” letter in 2011 and a follow-up Questions-and-Answers document in 2014. Critics also disliked some of the substance of the Obama ED policy, including its requirement that a “school’s grievance procedures must use the preponderance of the evidence standard to resolve complaints of sex discrimination.”

Why was the ED specifying the burden of proof in college grievance procedures? Some schools had been requiring that complaints of sexual violence be proven by clear-and-convincing evidence or even proof beyond a reasonable doubt. The rationale for these heightened evidentiary standards was dubious. The beyond-a-reasonable-doubt standard applies in criminal cases where a defendant risks imprisonment. The clear-and-convincing standard applies in civil commitment hearings, where personal liberty is also at stake. It also applies in some other settings. However, in the vast majority of civil cases, the preponderance standard applies, even when the stakes are high, as when a plaintiff sues for defamation based on damage to her reputation. The preponderance standard applies even when the underlying conduct could be the basis for a criminal prosecution in which the beyond-a-reasonable-doubt standard would apply. By using a heightened evidentiary standard, the Obama ED concluded, schools were under-valuing the interests of victims of sexual violence relative to the interests of those accused of such violence.

The Trump administration withdrew the Obama-era guidance documents last year, replacing them with interim guidance that in some ways continued in force past ED policy. However, it also made clear that henceforth schools would be permitted to apply a clear-and-convincing standard in grievance proceedings. Why? The document cited a 2016 case involving Brandeis University, in which the judge objected to the university’s use of a preponderance test in sexual misconduct cases but a higher evidentiary standard in other disciplinary proceedings.

That sounds like a sensible objection, but it does not withstand careful scrutiny. After all, a standard of proof reflects a judgment about how to balance competing interests, which will differ from one context to another. Some kinds of serious misconduct at a university lack identifiable victims. For example, a school can permit a student accused of plagiarizing a term paper to remain on campus absent clear and convincing evidence of such plagiarism without worrying that his victims will stop going to class for fear of encountering him and being re-traumatized. In such cases, the cost of some extra “false negatives” is tolerable. By contrast, in a case of alleged sexual violence, the costs of false negatives and false positives are both high, which argues for an evidentiary standard that favors neither side.

A better justification for allowing schools to use a clear-and-convincing standard is institutional autonomy. Traditionally, Republican administrations have justified deregulation on the ground that private and nonprofit actors should be subject to government mandates only when strictly necessary. The proposed rulemaking includes some language about the importance of such institutional autonomy, and to the extent that the new rules take a hands-off approach, they will almost certainly be found valid if challenged in court.

The Difference Between “May” and “Must”

Yet the proposed rules would do more than merely permit schools to adopt procedures making it more difficult for victims of sexual harassment or assault to prove their cases. In some respects, the new rules would require that approach.

For example, the proposed rulemaking builds on last year’s interim guidance by affirmatively forbidding the use of a preponderance standard unless a school “uses that standard for other conduct code violations that carry the same potential maximum sanction as the recipient could impose for a sexual harassment conduct code violation.” Nor can a school use the preponderance standard for allegations against students if it uses a higher evidentiary threshold in cases against faculty. The Trump ED cannot justify these restrictions on the ground that they increase a federally funded educational institution’s autonomy, because they in fact limit such autonomy.

The proposed rulemaking prescribes the details of a recipient school’s grievance procedures in other respects as well. For instance, colleges and universities must conduct live hearings at which “the decision-maker must permit each party to ask the other party and any witnesses all relevant questions and follow-up questions, including those challenging credibility.” The Trump administration seeks to justify these requirements on the ground that they are needed to ensure fair treatment of persons accused of sexual misconduct.

Well, what’s wrong with that? Don’t we want the ED to ensure fair processes for determining whether students are or are not responsible for sexual misconduct? If the Obama administration was allowed to strike a balance that was relatively favorable to alleged victims, why can’t the Trump administration strike a balance that is relatively favorable to alleged perpetrators?

The Scope of Agency Authority

In a recent column on this site, Professors Joanna Grossman and Deborah Brake provided powerful arguments against the substance of the ED’s proposed new rule. But before one comes to those objections, the ED must overcome a threshold issue: Does it have the statutory authority for the new rules? Even if one thought that the Trump ED’s proposed rulemaking struck the ideal balance between the interests of accusers and the interests of accuseds, that would not mean that it falls within the ED’s legal authority.

The Trump ED claims authority to promulgate new rules under Title IX and no other delegation of power from Congress. Title IX does indeed authorize agency administrative action, but it only authorizes agencies to establish rules that “effectuate the [substantive] provisions of” Title IX. Those regulations must be “consistent with the objectives of” whatever statutes provide federal funding, but that caveat restricts rather than enlarges the ED’s authority under Title IX.

One can think that the Obama ED policy on addressing sexual misconduct at Title IX-covered educational institutions was wrong-headed or under-valued the interests of students accused of such misconduct, but there was little doubt that it aimed to “effectuate” Title IX’s anti-discrimination mandate. By contrast, those provisions of the Trump ED’s proposed rulemaking that do not simply roll back Obama policies but affirmatively impose procedural requirements that aim at protecting persons accused of sexual misconduct do not effectuate Title IX’s policy against sex discrimination.

To reiterate, the problem here has nothing to do with the policy question whether the Trump approach is better or worse than the Obama approach. The question is whether Title IX delegates to the ED the authority to tell recipients of federal funds not to do too much to protect students against sex discrimination. It pretty clearly does not.

An analogy may be helpful. Suppose that a federal statute delegated to the Environmental Protection Agency (EPA) the authority to “restrict pollution from coal-fired power plants.” A provision of the Clean Air Act actually does more or less that, but for purposes of my hypothetical example, I want to suppose that the quoted language is the entirety of the delegation. Now let’s imagine that a Democratic administration adopts regulations setting certain limits on emissions from coal-fired power plants. A new Republican administration comes into office having pledged to relax regulations in order to promote economic growth. It would have the authority to ease the prior administration’s requirements by replacing them with laxer regulations. After all, a leading Supreme Court case said pretty much exactly that.

However, suppose that the Republican EPA tried to adopt rules that not only allowed coal-powered plants to emit more pollutants than they were emitting under the Democratic EPA’s rules, but that actually required such higher levels of pollution. Even if one agreed with the Republican administration that the higher pollution levels struck the optimum balance between clean air and economic growth, one would have to say that the Republican EPA’s rules were unlawful as ultra vires. The statute I hypothesized above authorizes the EPA to “restrict pollution.” That necessarily delegates some discretion to each administration to decide how much pollution to restrict. But it delegates no authority whatsoever to require pollution.

The Trump ED’s notice of proposed rulemaking is just like the regulation requiring pollution—at least to the extent that it purports to find in Title IX the authority to direct colleges and universities receiving federal funds to adopt procedures that make it harder for victims of sexual misconduct to prove their cases. If such procedures are a good idea (or even if they’re a bad idea), the ED can tell colleges and universities they may adopt such procedures. But Title IX gives the ED no authority to mandate them.

Michael C. Dorf is the Robert S. Stevens Professor of Law at Cornell University and co-author, most recently, of Beating Hearts: Abortion and Animal Rights. He blogs at dorfonlaw.org.

]]> Cornell law professor Michael C. Dorf discusses the Department of Education’s recent Notice of Proposed Rulemaking rules requiring due process protections for those accused of sexual assault or harassment in Title IX cases. Cornell law professor Michael C. Dorf discusses the Department of Education’s recent Notice of Proposed Rulemaking rules requiring due process protections for those accused of sexual assault or harassment in Title IX cases. Dorf provides a history of Title IX, explaining how the Obama administration issued guidance and instituted reforms to how institutions should approach addressing allegations of such conduct. He acknowledges the Department of Education's shift in policy under the Trump administration that led to its proposed rulemaking issuance, and argues that the Department only has the authority to permit these additional due process protections in most instances, rather than outright require institutions to adhere to them. Verdict full false 11:21 21207 opinionsupport@justia.com (Justia Inc)law,news,politics,legal,commentary https://verdict.justia.com/2018/11/14/matthew-whitaker-and-the-constitutions-appointments-gaps Wed, 14 Nov 2018 05:01:19 +0000 https://verdict.justia.com/?p=21141 https://verdict.justia.com/2018/11/14/matthew-whitaker-and-the-constitutions-appointments-gaps#respond https://verdict.justia.com/2018/11/14/matthew-whitaker-and-the-constitutions-appointments-gaps/feed 0 Cornell law professor Michael C. Dorf considers the legality of President Donald Trump’s firing of US Attorney General Jeff Sessions and designating Matthew Whitaker as Acting Attorney General. Dorf points out that while the Constitution does not expressly address acting officers, Trump’s actions certainly violate the spirit of the law and the Constitution.

One week ago, US Attorney General Jeff Sessions resigned at the “request” of President Donald Trump, who wasted no time in designating Matthew Whitaker as Acting Attorney General, pending the nomination and Senate confirmation of a full-time replacement. Although hardly Edward Levi (President Gerald Ford’s extremely distinguished AG), Whitaker does not completely lack professional qualifications. He served for over five years as a US Attorney in Iowa and, until last week, was the Chief of Staff to Sessions.

However, Whitaker’s chief qualification for the position to which Trump named him appears to be his well-known hostility to Special Counsel Robert Mueller’s Russia investigation. For that reason, Trump’s selection of Whitaker has raised alarm bells. Assuming Whitaker fully displaces Deputy AG Rod Rosenstein in supervising the Mueller investigation, will Whitaker shut it down? Will he starve Mueller of funds, as he once suggested in his role as a TV commentator? Will he disallow indictments of the likes of Donald Trump, Jr. or others in the president’s orbit? Will he bury Mueller’s report and then go to court to prevent the House of Representatives from subpoenaing and releasing it?

Is the Whitaker Appointment Legal?

Meanwhile, is it even clear that Trump had the legal authority to name Whitaker? A federal statute states that when a vacancy in the office of AG occurs, the Deputy AG becomes the Acting AG. Rosenstein, not Whitaker, is the Deputy AG. Presumably, Trump’s lawyers have advised him that another federal statute, the Vacancies Reform Act, allows him to override the default selection of the Deputy AG. As I explained on my blog last week, that position is “not completely crazy,” but it is hardly a matter of settled law.

Even assuming the Vacancies Reform Act allows the president to bypass the Deputy AG, there is a second statutory question. The Act authorizes the president to designate acting officers when the incumbent “dies, resigns, or is otherwise unable to perform the functions and duties of the office.” Did Sessions “resign”? As a formal matter yes, but both his letter and news reports indicate that Sessions was effectively fired by Trump. In my blog post, I suggested that, absent extraordinary circumstances, a formal resignation should be treated as a resignation, but here too, the legal question is open.

Finally, there is a constitutional question. Article II requires that what have come to be known as principal officers must be confirmed by the Senate. Writing in the New York Times last week, Neal Katyal and George Conway argued that because Trump bypassed two Senate-confirmed high-ranking Justice Department officials—Deputy AG Rosenstein and Solicitor General Noel Francisco—Trump’s choice of Whitaker (whose Senate confirmation as a US Attorney lapsed when he left that office in 2009) was unconstitutional. In response (and also in the Times), Stephen Vladeck pointed to the Supreme Court’s 1898 ruling in United States v. Eaton, which allows someone who has not been confirmed by the Senate to act in the role of a principal officer “for a limited time, and under special and temporary conditions.” Vladeck also contended that a firm rule requiring Senate confirmation for acting principal officers could hamstring government, especially at the beginning of a new administration.

Who has the better of this argument? My blog post last week and an exchange of comments on it with Martin Lederman (whose Just Security essay and Twitter thread also reward reading), indicate that the issue is unsettled, but that further inquiry into the historical practice of acting officers could be informative.

That history goes back to the Founding Era. As Justice Antonin Scalia observed in a concurrence in a 2014 case, “Congress can authorize ‘acting’ officers to perform the duties associated with a temporarily vacant office—and has done that, in one form or another, since 1792.”

Did the Framers Goof?

Justice Scalia’s observation points to an apparent deficiency in the Constitution. If, as he says and everyone today seems to agree, the Constitution allows acting officers, why doesn’t the Constitution mention them?

The text of the Constitution sets out three mechanisms for appointment of federal officers: (1) Principal officers must be nominated by the president and confirmed by the Senate; (2) “but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments;” and (3) the president may make appointments when the Senate is in recess.

One might therefore think that anyone appointed to exercise power on behalf of the United States must be chosen through one of those three methods. One would be wrong, however.

For one thing, since the nineteenth century, the Supreme Court has acknowledged a category of mere government employees, who are neither principal nor inferior officers, and can thus be appointed by means other than those set out in the Constitution’s Article II. And, as we have seen, the Eaton case vindicated the longstanding practice of “acting” officers. How can such decisions be squared with the constitutional text?

Longstanding practices can provide insight into the meaning of the Constitution. That’s especially true for a law enacted in 1792, when Congress included some of the Constitution’s framers, and all members of Congress would have remembered the then-recent ratification debate. Perhaps most members of Congress thought (as some modern commentators argue) that temporarily carrying out the duties of an office does not make one a holder of that office, and thus one need not be appointed to do so.

Even so, there would need to be a limit. Under the literal terms of the 1792 statute, the president could name an acting officer to perform all of the duties of an office “until a successor [is] appointed,” without setting a time limit. Taken at face value, the 1792 statute would allow a president to completely circumvent the Constitution’s Appointments Clause. If that is consistent with the Appointments Clause, then it looks like the framers goofed. They would have done better to specify authority for and limits on acting officers in the Constitution itself.

The Constitution is not a Machine that Will go by Itself

Yet to fault the framers for the Constitution’s incompleteness is to misunderstand how the Constitution works. Chief Justice John Marshall famously wrote in McCulloch v. Maryland in 1819 that the very nature of the Constitution “requires that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects be deduced from the nature of the objects themselves.” McCulloch concerned the scope of powers given to Congress by Article I, Section 8, but Marshall’s point applies more broadly. The Constitution is a sketch, an outline; the details needed to make a system of government work have to be filled in.

That picture of the Constitution as requiring tending and operationalizing contrasts sharply with James Russell Lowell’s famous characterization of it as “a machine that would go of itself.” The framers gleaned from their study of history the lesson that democracies tend to devolve into dictatorships. For that reason, Federalist 51 explains, the Constitution, while relying on “the people” as “the primary control on the government,” implements “auxiliary precautions,” that is, checks and balances.

Trump’s de facto firing of Sessions and his naming of Whitaker as Acting AG may well be unlawful. If so, and assuming timely litigation by a party with legal standing, it may fall to a court to oust Whitaker. But even assuming Trump’s brazen moves did not violate the letter of the law or of the Constitution, his actions clearly violated their spirit. If the courts fail to provide a check, Congress can. Whether it does so will say more about America today than at the Founding.

Michael C. Dorf is the Robert S. Stevens Professor of Law at Cornell University and co-author, most recently, of Beating Hearts: Abortion and Animal Rights. He blogs at dorfonlaw.org.

]]> Cornell law professor Michael C. Dorf considers the legality of President Donald Trump’s firing of US Attorney General Jeff Sessions and designating Matthew Whitaker as Acting Attorney General. Dorf points out that while the Constitution does not expre... Cornell law professor Michael C. Dorf considers the legality of President Donald Trump’s firing of US Attorney General Jeff Sessions and designating Matthew Whitaker as Acting Attorney General. Dorf points out that while the Constitution does not expressly address acting officers, Trump’s actions certainly violate the spirit of the law and the Constitution. Verdict full false 8:22 21141 opinionsupport@justia.com (Justia Inc)law,news,politics,legal,commentary https://verdict.justia.com/2018/10/31/justice-oconnor-withdraws-from-public-life-and-the-reagan-court-is-finally-born Wed, 31 Oct 2018 04:01:12 +0000 https://verdict.justia.com/?p=21108 https://verdict.justia.com/2018/10/31/justice-oconnor-withdraws-from-public-life-and-the-reagan-court-is-finally-born#respond https://verdict.justia.com/2018/10/31/justice-oconnor-withdraws-from-public-life-and-the-reagan-court-is-finally-born/feed 0 Cornell law professor Michael C. Dorf comments on the announcement that retired Supreme Court Justice Sandra Day O’Connor would be withdrawing from public life and explains how, ironically, the exit of President Ronald Reagan’s Supreme Court nominees is giving rise to what could be called the Reagan Court. Dorf describes Reagan’s successes and failures with respect to shaping the Court and explains why only now, with its present composition, the Court may actually be poised to further Reagan’s agenda.

Last week, retired Supreme Court Justice Sandra Day O’Connor announced that, facing the prospect of advancing dementia, she was withdrawing from public life. Justice O’Connor will rightly be remembered as a pioneer. As the first—and for well over a decade, the only—woman on the Supreme Court, she transformed the institution. For most of her nearly quarter century on the Court, she was, on many important issues, the most powerful person in the country, as she defined the Court’s center, while the Court defined the bounds of law.

Unsurprisingly, the exercise of so much power did not please everyone. Indeed, it sometimes seemed as though Justice O’Connor did not please anyone. Her vote with the majority in Bush v. Gore and her conservatism on such issues as states’ rights and habeas corpus meant that she was no liberal hero. Meanwhile, she disappointed many conservatives by moderating on abortion, affirmative action, church-state separation, and other subjects. And Justice O’Connor’s tendency to split the difference rather than stake out bold positions meant that she did not have a distinctive perspective to which scholars can point as her legacy.

Nonetheless, no one doubts Justice O’Connor’s love of country, work ethic, integrity, or personal decency. Her announcement has understandably and quite appropriately brought forth a wealth of tributes, many of them lamenting how, as a centrist Republican with a penchant for compromise, she seems a symbol of a bygone time.

She may well be. In the last two years, the three justices named to the Court by Ronald Reagan have left the arena: Justice Scalia died suddenly in early 2016; Justice Kennedy retired this past summer; and now Justice O’Connor has withdrawn from public life. Ironically, however, the exit of Reagan’s nominees has birthed what might best be called the Reagan Court.

Becoming Justice O’Connor

As a presidential candidate, Ronald Reagan promised to name a woman to a Supreme Court vacancy, should one open. Why did he choose O’Connor, who, when tapped, was a not-very-well-known intermediate appellate court judge in Arizona, having previously served as a state legislator? Part of the answer is that O’Connor had the support of conservative hero Barry Goldwater.

Another (rather large) part of the answer is that in 1981, very few women—and even fewer Republican women—had had the opportunities needed to rise to the level of professional accomplishment that we have come to associate with Supreme Court nominees. O’Connor initially had a difficult time finding work as a lawyer, despite graduating near the very top of her Stanford Law School class. A man with the same credentials might well have been a US Senator or Arizona Supreme Court justice. How do we know? Because her law school classmate William Rehnquist was waiting for her at the US Supreme Court when she got to Washington. Thus, O’Connor was eminently qualified for the position to which Reagan named her.

Yet in 1981, as today, professional qualifications were usually thought a necessary but not sufficient condition for a Supreme Court nomination. Many of Reagan’s pro-life supporters were worried that O’Connor would prove wobbly on abortion, given her record as a state legislator. Reagan looked past that concern, however, perhaps because of the dearth at the time of female, strongly anti-abortion potential nominees with anything like O’Connor’s credentials. Indeed, some historians have even suggested that Reagan privately viewed O’Connor’s moderate stance on social issues as a political plus.

The Reagan Revolution

Justice O’Connor undoubtedly counts as part of President Reagan’s legacy, but seen in broader perspective, her centrism made her an exception to the larger movement that the Reagan administration catalyzed. Justice Anthony Kennedy was another exception. Reagan’s first choice to fill the seat vacated when Justice Lewis Powell retired was Judge Robert Bork, a highly ideological conservative. The nomination only went to Kennedy, a moderate conservative, after the Senate rejected Bork, and Judge Douglas Ginsburg, Reagan’s second choice, withdrew.

Overall, Reagan’s judicial nominees reflected the fact that his administration was a hotbed of activity for ambitious conservative lawyers. In addition to placing Bork on the court of appeals and then attempting to elevate him, Reagan successfully placed Antonin Scalia first on the court of appeals and then the Supreme Court. He also named other conservative intellectuals, like Richard Posner and a then-very-young Alex Kozinski, to the federal appeals courts.

The Reagan administration was also a training ground for a later generation of conservative jurists. Both Chief Justice John Roberts and Associate Justice Samuel Alito worked in the Reagan Justice Department as young lawyers. Meanwhile, Reagan’s Attorney General Edwin Meese delivered important speeches and commissioned studies that would pave the way for later conservative Supreme Court decisions on a wide range of issues. During this same period, the Federalist Society was formed to train (or, depending on one’s view, indoctrinate) aspiring conservatives in the ways of originalism and networking.

Reaganism’s Successes and Failures

From the appointment of Justice O’Connor in 1981 through the retirement of Justice Kennedy earlier this year, the Reagan agenda achieved some important legal successes. The Supreme Court, abetted by Congress and President Clinton, cut back on the right of state prisoners to file habeas corpus petitions. Arbitration clauses limiting court access were deemed enforceable across a wide range of cases. Corporate money was treated as free speech. States were given immunity against civil lawsuits. The Second Amendment was invoked to undercut federal and state gun control. And much more.

Still, the Reagan agenda did not triumph completely. Although the rights of criminal defendants were curtailed, they were not eliminated. For example, Rehnquist, whom Reagan elevated to chief justice, had been a critic of the Warren Court’s Miranda rule, but he wrote the Court’s opinion reaffirming that ruling in the 2000 case of Dickerson v. United States. Some rulings of Reagan’s appointees—like Kennedy’s majority opinions invalidating the juvenile death penalty, curtailing prison overcrowding, and finding a limited right to effective assistance of counsel in habeas cases—actually expanded the rights of defendants and prisoners. To similar effect, Justices O’Connor and Kennedy authored important decisions rejecting broad claims of presidential wartime power, another key tenet of the Reagan agenda. In what is probably the most-quoted statement in this line of cases, O’Connor wrote in 2004 that “a state of war is not a blank check for the President when it comes to the rights of the Nation’s citizens.”

Perhaps most fundamentally and most irksome to movement conservatives, Justices O’Connor and Kennedy joined with their more liberal colleagues to retain (albeit in somewhat more limited form) the constitutional right to abortion and greatly expand the rights of gays and lesbians.

Reaganism Without Reagan’s Justices

With the ascent to the Court of Justice Brett Kavanaugh earlier this month, it now appears that the right will finally be able to achieve what it never quite managed while Reagan’s appointees sat on the Court—the full Reagan agenda.

That does not mean that there will be no victories for liberals. For his part, Justice Gorsuch appears to be quirky in some of the ways that Justice Scalia was; he will vote for criminal defendants when his brand of originalism clearly leads him to do so. Meanwhile, Chief Justice Roberts has long espoused a kind of stylistic restraint that may lead him to delay dramatic decisions that completely overrule the abortion right or completely ban all use of race-based affirmative action. Death by a thousand cuts, rather than in one fell swoop, could be the fate of those liberal precedents that survived for the nearly four decades that Reagan’s appointees sat on the Court.

Earlier this year, I observed that “to a remarkable degree, almost five decades after Earl Warren retired from his seat as chief justice, Warren Court precedents define basic constitutional doctrines, even as the Burger, Rehnquist, and Roberts Courts have chiseled away at their effectiveness in achieving the substantive aims of those doctrines.” That was before Kennedy retired and Kavanaugh was confirmed, however. At some point, repeated chiseling destroys the statue or edifice. It appears that, even without a further change in personnel, we have reached that point.

Whether slowly or quickly, stealthily or openly, the Trump-reinforced conservative majority will change the law in kind, not just degree. When it does, the Reagan revolution on the courts will finally be complete—just in time for liberals and progressives to convert our numerical majority into a governing majority, and thus to begin our own revolution.

Michael C. Dorf is the Robert S. Stevens Professor of Law at Cornell University and co-author, most recently, of Beating Hearts: Abortion and Animal Rights. He blogs at dorfonlaw.org.

]]> Cornell law professor Michael C. Dorf comments on the announcement that retired Supreme Court Justice Sandra Day O’Connor would be withdrawing from public life and explains how, ironically, the exit of President Ronald Reagan’s Supreme Court nominees i... Cornell law professor Michael C. Dorf comments on the announcement that retired Supreme Court Justice Sandra Day O’Connor would be withdrawing from public life and explains how, ironically, the exit of President Ronald Reagan’s Supreme Court nominees is giving rise to what could be called the Reagan Court. Dorf describes Reagan’s successes and failures with respect to shaping the Court and explains why only now, with its present composition, the Court may actually be poised to further Reagan’s agenda. Verdict full false 9:07 21108 opinionsupport@justia.com (Justia Inc)law,news,politics,legal,commentary https://verdict.justia.com/2018/10/17/trumps-and-the-gops-hat-trick-of-falsehoods-about-pre-existing-conditions Wed, 17 Oct 2018 04:01:31 +0000 https://verdict.justia.com/?p=21058 https://verdict.justia.com/2018/10/17/trumps-and-the-gops-hat-trick-of-falsehoods-about-pre-existing-conditions#respond https://verdict.justia.com/2018/10/17/trumps-and-the-gops-hat-trick-of-falsehoods-about-pre-existing-conditions/feed 0 Cornell law professor Michael C. Dorf debunks President Trump’s claim that he has kept his campaign promise to “protect coverage for patients with pre-existing conditions.” Dorf provides three primary reasons that the claim is dishonest: the administration’s position in a pending lawsuit; the GOP’s proposed alternative, which does not require insurance companies to offer policies that actually cover pre-existing conditions, and the claim that Democratic support of Medicare for All is “radical socialism.”

Last week, USA Today published an op-ed by Donald Trump in which the president attacked Democratic proposals to create a system of Medicare for All. Despite using complete sentences and correct spelling, the essay was recognizably Trumpian: it stoked fears in his disproportionately elderly supporters through tendentious assumptions and outright lies. As Glenn Kessler observed in the Washington Post, “almost every sentence contained a misleading statement or a falsehood.”

One of the biggest whoppers was Trump’s claim that he has kept his campaign promise to “protect coverage for patients with pre-existing conditions.” That claim was triply dishonest. First, the administration is backing a lawsuit that would eliminate the current prohibition on insurers’ screening out people with pre-existing conditions. Second, the Republicans’ alternative would not provide real protection. Third and most telling, by accepting the logic of protecting patients with pre-existing conditions, Trump and the GOP give the lie to their red-baiting on Medicare for All.

The Affordable Care Act and its Discontents

The Affordable Care Act (ACA) has grown more popular over time, but its provision barring insurance companies from denying or charging extra for coverage of people with pre-existing medical conditions was popular from the start. Meanwhile, the ACA’s least popular provision—the so-called individual mandate that most people without another form of health insurance purchase a policy—was always closely tied to the pre-existing conditions provision.

How so? Based on the experience of various states before 2010, Congress had good reason to fear an adverse selection problem. If the ACA did not contain a mandate but did bar insurance companies from rejecting customers based on pre-existing conditions, then many young healthy people would choose to go without health insurance, knowing that they could always buy a policy later if they got sick. That, in turn, would starve insurance companies of premiums sufficient to pay for care. Combined with government subsidies, the mandate solved this problem by putting enough people in the health insurance pool to provide a viable market.

The ACA survived two Supreme Court challenges by 5-4 votes, first in a constitutional case in 2012 and again in 2015 in a statutory case. However, late last year, Congress seriously undermined the ACA by reducing to “$0” the tax that people who fail to obtain health insurance under the mandate must pay. That provision will become effective next year, and whether it will send the individual insurance market into a death spiral remains to be seen.

Meanwhile, the Trump administration is not taking any chances. It has slashed funding for efforts to promote the ACA; with the backing of all but one Senate Republican, it has expanded the availability of insurance plans that provide minimal coverage, thereby undermining the pool for fully ACA-compliant plans; and in direct contradiction of the president’s claim to care about insurance for people with pre-existing conditions, it has lent its support to a lawsuit that, if successful, would invalidate much or all of the ACA, including guaranteed coverage for such conditions.

The Latest Challenge to the ACA

Texas and nineteen other states brought the suit. They argue that the scheduled elimination of the tax penalty for failure to obtain health insurance means that the rationale of the 2012 Supreme Court ruling—which upheld the ACA’s mandate based on congressional power to tax—no longer applies. And because five justices indicated in 2012 that the mandate could not be sustained under any other power, without the tax the mandate is unconstitutional.

Well, so what? Who cares whether a nominal obligation to purchase health insurance backed by no penalty for noncompliance is constitutional? After all, even if it is valid, starting next year the mandate will have no effective force.

Aha!, say Texas and the other plaintiff states: the mandate is crucial to the operation of the rest of the ACA, so that if it is unconstitutional, then the rest of the Act—including the prohibition on insurance companies screening for pre-existing conditions—must also be struck down. In legal jargon, Texas and the other plaintiff states argue that the rest of the ACA is not severable from the now-invalid mandate.

That is a terrible argument. Severability, the courts have long held, is basically a matter of statutory construction. A court faced with a law with an invalid part asks the counterfactual question whether the legislature would have enacted the rest of the law without the problematic piece. That can be a tricky inquiry, but in this latest ACA challenge it is child’s play: we don’t have to guess whether Congress would have preserved the rest of the ACA without the mandate, because Congress, with the enthusiastic support of the president, did just that last December, when it reduced the tax penalty to zero but left the rest of the law intact.

Nevertheless, a hearing last month showed once again that no argument attacking the ACA is too far-fetched for some Republican appointees to the bench. Federal District Judge Reed O’Connor suggested that instead of looking at what the most recent Congress actually did, he was inclined to speculate about what the Congress that enacted the original version of the ACA in 2010 would have done with the rest of the law if no mandate were included.

For now, however, the key point is not whether Texas and the other plaintiff states will or should prevail. Instead, the key is that the Trump administration has joined the plaintiffs in urging the court to invalidate the prohibition on denying coverage to people with pre-existing conditions.

The GOP Alternative

How can Trump square his support of the Texas lawsuit with his supposed commitment to protecting Americans with pre-existing conditions? He might point to a bill recently proposed by some Republican senators. It would create a law with the seemingly reassuring title “Ensuring Coverage for Patients with Pre-Existing Conditions Act.”

Yet the GOP senators’ bill is, as one health reporter bluntly described it, “a fraud,” because while nominally requiring insurers to issue policies to people with pre-existing conditions, it does not require that such policies actually cover those conditions. For example, the Republican bill would allow an insurer to sell someone who has or had cancer a policy that does not cover treatment for cancer.

Indeed, one need not even examine the fine details of the GOP bill to see that it is entirely for show. There is another glaring shortcoming in the bill. The Trump administration itself argues in its brief in support of the Texas challenge to the ACA that a purchase mandate backed by a penalty is essential to the operation of a prohibition on insurers screening out individuals with pre-existing conditions. That, after all, is the chief basis for the claim that the mandate and the guaranteed coverage provision are non-severable. Thus, even on the administration’s own logic, a serious effort to protect Americans with pre-existing conditions would include an individual mandate. Yet the Republican Congress and Trump gleefully undid the mandate last year when they zeroed out the tax penalty. Needless to say, the GOP “alternative” fails to include a mandate, much less one backed by a penalty.

Trump Red-Baits Himself

The third lie about pre-existing conditions in Trump’s op-ed is perhaps the most galling. Reflecting the “ravenous anti-Communist grandstanding” of his late mentor Roy Cohn, Trump writes: “If Democrats win control of Congress this November, we will come dangerously closer to socialism in America.” Medicare for All would have the US join every other advanced democracy in providing universal health care. Yet the red-baiter-in-chief asserts that Democratic support for it shows that “Democrats are radical socialists who want to model America’s economy after Venezuela.”

The charge is risible on its face. But it is more. It contradicts Trump’s ostensible support for protecting Americans with pre-existing conditions.

Consider how insurance markets generally work. People purchase insurance policies as a hedge against large risks. Insurance companies, in turn, price those policies in a way that reflects those risks. Other things being equal, a homeowner’s policy will be cheaper for someone whose house contains working smoke detectors than for someone whose house does not; an auto policy will cost more for a driver who has had multiple accidents than for one with a clean record; etc. If a law mandated that insurance companies sell homeowner’s policies to people whose houses are currently on fire or have recently burned down, the companies could not survive. Legislation would have to supplement such a requirement with something like subsidies and a purchase mandate—just as the original ACA did for health insurance.

This little thought experiment tells us that protecting the ability of people with pre-existing conditions to purchase health insurance takes health insurance out of the logic of conventional markets and into the realm of so-called social insurance. There is nothing wrong with that, of course. Some of the most popular government programs—including Social Security and Medicare—provide social insurance. But if Trump thinks that social insurance is “socialism” in the Venezuelan or Soviet sense, then he should oppose the popular programs as well.

Yet far from admitting that his “socialism” charge would undo programs Americans have embraced for decades, Trump portrays himself as the savior of the existing Medicare program. That too is preposterous, even on its own terms, but even if Trump really were trying to preserve Medicare and the Democrats really were trying to gut it, that would only show the incoherence of Trump’s position. Congress adopted Medicare itself over the vociferous opposition of critics who decried it as socialism.

* * *

In light of Trump’s thousands of false or misleading claims, it might seem odd to expend so much energy on three falsehoods regarding pre-existing conditions. But while each presidential lie does damage, the ones about health insurance are special.

For the better part of a decade, opposition to the ACA has defined the GOP brand, even as Republicans pretend to favor the law’s most popular provision. The Texas-led lawsuit and the sham replacement bill show that Republicans are engaged in a gigantic deception, and in this regard they are on the same page as the president. When it comes to pre-existing conditions, Trump is just a symptom; Republican opposition to universal coverage is the disease.

Michael C. Dorf is the Robert S. Stevens Professor of Law at Cornell University and co-author, most recently, of Beating Hearts: Abortion and Animal Rights. He blogs at dorfonlaw.org.

]]> Cornell law professor Michael C. Dorf debunks President Trump’s claim that he has kept his campaign promise to “protect coverage for patients with pre-existing conditions.” Dorf provides three primary reasons that the claim is dishonest: the administra... Cornell law professor Michael C. Dorf debunks President Trump’s claim that he has kept his campaign promise to “protect coverage for patients with pre-existing conditions.” Dorf provides three primary reasons that the claim is dishonest: the administration’s position in a pending lawsuit; the GOP’s proposed alternative, which does not require insurance companies to offer policies that actually cover pre-existing conditions, and the claim that Democratic support of Medicare for All is “radical socialism.” Verdict full false 10:48 21058 opinionsupport@justia.com (Justia Inc)law,news,politics,legal,commentary