Saturday, February 15, 2025

Is There a Non-Imbecilic Version of the President's Latest Assertion?

That assertion being, "He who saves his country does not violate any law." (I have cleaned up the quote out of respect for the English language.) 

There is. In more contemporary legal academic literature, it is represented by several fine articles. One might start with Henry Paul Mongahan's The Protective Power of the Presidency, a 1993 Columbia Law Review article whose core question is the extent to which "the President, acting on his or her own, [can] invade the rights of American citizens in circumstances which Congress could—but did not—authorize." Monaghan concludes that the president "cannot act contra legem," but that the executive may have a bounded "protective power" to "protect and defend the personnel, property, and instrumentalities of the United States from harm." He makes clear that the protective power he envisions is limited, both in scope and in nature; it does not, for instance, contemplate the use of the word "harm" in the distended contemporary manner beloved these days on both sides of the political horseshoe. (That seems obviously relevant here, since the only way in which the words "saves his country" could possibly be applicable at present is a fatuously general argument that not having the country one wants, the second one wants it, justifies extralegal emergency measures.)

Another chunk of material addressing this question was birthed after 9/11. The positive case was put by Michael Stokes Paulsen in his 2004 article The Constitution of Necessity. Paulsen argues there that "the Constitution itself embraces an overriding principle of constitutional and national self-preservation that operates as a meta-rule of construction for the document's specific provisions and that may even, in cases of extraordinary necessity, trump specific constitutional requirements. The Constitution is not a suicide pact; and, consequently, its provisions should not be construed to make it one, where an alternative construction is fairly possible." And where such an alternative saving construction is not possible, the necessity of preserving the Constitution and the constitutional order as a whole requires that priority be given to the preservation of the nation whose Constitution it is, for the sake of preserving constitutional government over the long haul, even at the expense of specific constitutional provisions." Paulsen argues that "the primary [but not exclusive] duty of applying it and judging the degree of necessity in the press of circumstances" rests with the President. He describes this power as both necessary and dangerous, obviously susceptible to misuse, and adds that both Congress and--more pertinently today, for the time being--the judiciary have a duty to independently review any exercises of this power: "While the courts, and Congress, should recognize the correctness of a doctrine of constitutional necessity,...that does not mean they should go along with whatever the President says. A constitutional power of necessity necessitates checks on its exercise. Complete congressional and judicial acquiescence or abdication has a name. That name is Korematsu." 

Another example of the positive case from the same period comes from Oren Gross, who argued in 2003, in Chaos and Rules: Should Responses to Violent Crises Always Be Constitutional?, that "there may be circumstances where the appropriate method of tackling grave dangers and threats entails going outside the constitutional order, at times even violating otherwise accepted constitutional principles, rules, and norms." He argues that any such conduct must involve an open and public acknowledgment of the extralegal nature of these actions, and it may then be judged by the public, including other officials, who may approve it or may call that official to account and require that he or she "make legal and political reparations." 

On the other side, I have always been impressed by Sai Prakash's The Constitution as Suicide Pact, written as a response to Paulsen's article. Prakash argues that "though the Constitution creates a powerful chief executive, it does not empower the President to suspend the Constitution in order to save it." He writes eloquently: "I do not regard it at all obvious that people framing a constitution would include an 'anti-suicide' provision. In fact, there are many sound reasons why reasonable people might omit a rule of necessity. To begin with, constitutional framers might value other things, like religious freedom or a slavery prohibition, more than the durability of the constitution and the nation. In particular, constitutional framers might not wish to frame a constitution that permits the expedient sacrifice of such principles, even temporarily. Moreover, constitution-makers might believe that officials will violate the constitution on grounds of necessity anyway, and that we ought not to multiply those violations by explicitly sanctioning what otherwise might occur once in a blue moon." This argument, I should think, will be especially legible to religious individuals, who may think of any given state as a temporary expedient that is ultimately subordinate to higher values and ultimate things. (Admittedly, this understanding may be different if the religious individual in question is an idolater.) 

Needless to say, all of these arguments, back and forth, have occasioned a rich library of commentary. And these are just recent efforts. All of them take place against a longer history of argument, stemming most particularly from Lincoln's presidency, about what presidents or other officials may do, when they may act extra-legally, and whether such actions should be understood as non-violations or justified violations of law. Viewed from a suitably wide perspective, they do not break down into party or crudely ideological lines. Arguments for expansive governmental power, executive or otherwise, are often grounded in some form of "necessity." What the best of these discussions have in common is a sense that something more than legal realism or crude power is at play in these discussions, that any such power that might exist is deeply perilous even if it is necessary, and that it ultimately relies on candor, on a non-shirkable duty of independent evaluation by other officials and by citizens, and on the willingness to face the consequences of one's decision to act in a way that would normally be considered a law violation--although this runs up against what Prakash, writing elsewhere, calls "an extreme executive aversion to admitting illegality during crisis,....a tendency that predictably leads executives to press rather sweeping readings of their constitutional and statutory authorities."

I should add, however unnecessarily, that none of this is present in today's eccentrically capitalized presidential statement. Just as one should be willing to acknowledge serious arguable questions and not dismiss them simply because the source is poor, so one should be cautious about putting lipstick on a pig. It's not a fatal fault of a presidential argument that it could be put more seriously and deeply. We do not expect depth from presidents and should, in my view, even be wary of any desire for them to be eloquent. But we should distinguish between elaborating on someone's actions or arguments, and engaging in post-hoc rationalizations on their behalf, in a way that risks wildly missing the point. One should not assume that a rationale is called for or even relevant when addressing the words or behavior of a grossly unbridled appetite wearing the skin of a man. One should not too readily assume that his words have much semantic content at all, as opposed to being barbaric yawps. 

Neither, however, should one somehow take as a given that a president's statements are "mere" trolling. (Nor should one forget that trolling is not an acceptable activity for mature adults, in or out of high elected office, even if it has soaked deeply into our culture and appears to be this administration's sole mode of speech. On that point, the title of the second Prakash paper I've quoted seems unusually apt: The Imbecilic Executive.) I don't want to dignify what can't be dignified. But it is nice to be reminded that in other places and times, intelligent people have discussed intelligent versions of these genuine questions. For some, that might indicate that those discussions were already dangerous, insofar as they legitimized dangerous behavior. I'm more inclined to think that what it suggests is that those conversations could only take place because everyone involved in them assumed and shared, perhaps far more than they realized, a baseline level of seriousness, legality, and common ground about the ascertainment of facts. The common ground between the people on opposite sides of those arguments was vastly greater than the space between this president and everyone involved in those debates.       

Posted by Paul Horwitz on February 15, 2025 at 07:04 PM in Paul Horwitz | Permalink | Comments (0)

What is it Like to Be an ABA Member?

One useful way of spotting the indefensible is that those writing an apologia for some action write around that topic but not on the question itself. A nice example of this is a Volokh Conspiracy post yesterday discussing one of the day's flood-the-zone stories: a letter from Andrew Ferguson, chairman of the FTC, stating that political appointees are barred from, inter alia, renewing existing ABA memberships, and prohibiting the agency from any spending to facilitate any employee's participation in an ABA event. The letter is an exemplary Trump administration missive written in the Trump administration house style. It's exemplary, among other things, in that it curries favor with the boss; how fitting that it was dated February 14. It is exemplary also in being deliberately provocative without being especially purposeful, in centralizing power and favoring it over expertise, and in being uneven and self-serving in application. (That prohibition on spending for participation in ABA events does not include commissioners or their staffs.) And its signs of the house style include repeated invocation of the personalist nature of the presidency (eight uses of the president's name in a little over two pages), breathless praise and puffery, bad writing, and bald dishonesty. (Remember: the bald dishonesty is the point. A more elegant lie would not serve the purpose of demonstrating loyalty. Like hypocrisy, it would pay tribute to virtue; and reserving a place for virtue might denote a dangerous independence.) 

In almost-defending the letter, the VC post argues that the ABA has had it coming for a long time, without ever getting to the rightness or wrongness, seriousness or silliness, of the "it." This is a justification in roughly the same way that one might accurately discuss the loud barking one's neighbor's dog and the need for it to be better behaved, while avoiding discussion of the fact that you dealt with the problem by poisoning the dog's food. 

I'm sympathetic to the criticisms of the ABA. I have belonged to the ABA since 2000. I have found it useless at best as a membership organization. Its function in my own life is minimal. The ABA Journal, which has had good moments in the past, is now so poor that it makes state bar magazines look good by comparison. The political leanings of the organization have long been evident. (Although, predictably given the rhetorical exaggeration of the house style, Ferguson's letter gets those leanings wrong. It's establishment liberal, not "leftist" or "radical left-wing," a distinction that Ferguson, a longstanding member of the establishment, ought to understand. For its entire history, the ABA has always only ever been either establishment liberal or establishment conservative.) I groan at some of its accreditation moves and at other policy proposals and ignore its amicus briefs. I remain a member for pretty typical reasons: one is simple inertia, and the other is that it occasionally does things in my area that I would like to know about. That second reason would be even more pertinent if I were in an area of law--say, antitrust--where bench, bar, and academy mix more often and productively. I would be interested in such matters even if I disliked many other aspects of the organization. As with, say, the Federalist Society, I might belong because I thought it put on some good events, or had some good sections or chapters, even if I found other chunks of the ABA objectionable or trivial. (And like the ABA, I belong to the Federalist Society most years, with lapses having more to do with inertia than the desire to make a statement.) It is an extremely weak-tie membership group. 

For those reasons, I could well imagine any administration criticizing the ABA or having no interest in working with it. (Although I expect that, in reality, this administration will often work with the ABA at multiple levels, while also attacking it and engaging in dumb-shows of this sort.) But that's not the "it" here. The "it" is a flat ban on membership in the organization for political underlings and a categorical refusal to subsidize even the most politically anodyne and practically valuable event participation by any employee. (Except, of course, for the commission's ruling class.) It is, as the letter's last paragraph makes clear, a literally and purely performative action. After years of performative exercises by administrations of both parties, one ought to be used to it, even as one notes the aggressively personalist and cumulatively authoritarian elements that distinguish the Trump administration. But one longs for the days of vaguely serious and non-trivial government, and vaguely serious and purposeful intellectual discussion directed at points of substance and significance.   

Posted by Paul Horwitz on February 15, 2025 at 11:19 AM in Paul Horwitz | Permalink | Comments (0)

Saturday Music Post - Messin' with the Kid

In 1960, "Messin' with the Kid" was written in Chicago by Mel London and Junior Wells and released by London's Chief Records (which probably explains why only London was credited on the label).  As the story goes, London arrived early to pick up Wells for a recording session, and Wells's young daughter accused him of "messin'" with her father, who was nicknamed The Kid. Writing the song was a historic collaboration, eventually becoming a blues standard, although its initial release on the small Chief label, instead of the much larger and nationally distributed Chess label, probably explains why Wells did not achieve the crossover success of his contemporaries such as Muddy Waters, Howlin' Wolf, and James Cotton. Blues afficionados, of course, are well aware of Wells and his long-time guitarist and bandmate Buddy Guy, who went on to his own lengthy solo career. You can see them together at The Faculty Lounge.

Posted by Steve Lubet on February 15, 2025 at 03:54 AM | Permalink | Comments (0)

Friday, February 14, 2025

Defining misinformation

Free speech advocates opposed government efforts, urged by members of the public, to restrict and eliminate misinformation about COVID, the 2020 election, January 6, conversion therapy, and other subjects. They warned, in part, about the danger of giving the government the power to define what is true and to restrict speech the government defines as "misinformation." If you give the Biden Administration the power to define the truth about COVID and to suppress as "misinformation" any speech that departs from that truth, nothing stops the Trump Administration from defining the truth about something liberals care about and suppressing as misinformation speech that departs from that truth.

I did not expect that the warning would become real over something as stupid as Donald Trump unilaterally renaming the Gulf of Mexico and his administration insisting that using that name reflects a "commitment to misinformation" worthy of sanction. Yet here we are.

Update: Eugene has more.

Posted by Howard Wasserman on February 14, 2025 at 11:05 PM in First Amendment, Howard Wasserman | Permalink | Comments (0)

Nonsense--Not Acidental, But Deliberate

I suggested the other day that a lodestone of this personalist presidential administration is its historically familiar requirement of self-abasement: what better way to ensure the non-interference of principled and professional individuals, the kinds who gummed up the works last time, than to require anyone seeking an executive position to engage in a ritual act of self-humiliation--to deny one's own principles, the evidence of one's own eyes, and one's own good name? To be sure, there are committed ideologues and partisans seeded among the riffraff. But, apart from the fact that to think of Trump himself as an ideologue or partisan is to make a category mistake, partisanship and ideology are insufficient safeguards against the possibility that an individual might find in those beliefs something that transcends personal loyalty--not to the president as an officeholder or the presidency as an institution, but to the man himself. Ideologues and partisans may turn out to have character. Mandatory public self-abasement is the best way to weed out such people.   

Today's ongoing news about the Eric Adams transaction offers further evidence. The appearance of Mayor Eric Adams with Thomas Homan is Exhibit A. The appearance was not incidental; it was the point. That point was beautifully captured--again, in words with a remarkably apt historical resonance--by Adams's awkward silence and apt self-description: "I'm collaborating." (Truer words....) And it was underscored by Homan's suggestion that if Adams "doesn’t come through, I’ll be back in New York City,...in his office, up his butt, saying where the hell is the agreement we came to?" (I understand that confusing vulgarity with fortitude and energy is a bipartisan failing in a country that rejects dignity and tradition. I enjoy being vulgar myself, outside of the classroom. But I expect high officials to avoid it, even in an administration whose chief figure is famed as a short-fingered vulgarian.)

Recall that the president's* two stated excuses for wanting to dismiss the Adams indictment were that the timing of the indictment was improper, including its proximity to the primary and general elections, and that the indictment would interfere with Adams's support of the administration's immigration policies. Each was described as an independent justification. Neither was said to indicate any conclusions concerning Adams's guilt or innocence or the strength of the case against him.

How do Homan's words comport with these justifications? They strongly suggest two things. They suggest that the talk of interfering with the timing of the elections was the sheerest nonsense, since Homan's threat indicates that the administration will let the sword fall at a time of its own choosing, quite regardless of that timing. And they suggest that the president's argument* that there was an appearance of impropriety in prosecution because Adams criticized the Biden administration's immigration policies shortly before the indictment (but long after the commencement of the rigorously monitored investigation) are also nonsense. This administration has promised, in almost as many words, that it will refile charges against Adams (who it has not said is innocent) precisely if and when it is unhappy with him. This is not even the appearance of impropriety, but its very definition. A passage from Bolt's A Man For All Seasons springs to mind--one of many that do these days, actually, this one quite frequently: "MORE: You threaten like a dockside bully. CROMWELL: How should I threaten? MORE: Like a minister of state, with justice!"      

It is not surprising that I have seen no defenses of the administration's actions or the president's arguments by any lawyer who is even marginally fit for the profession. Those arguments are transparently poor. And that is not an accident, but the point. Adams labeling himself a collaborator, Homan indicating that he doesn't take the stated reasons for wanting to dismiss the indictment at all seriously as justifications for this transaction with the president, and the embarrassing lack of seriousness of those reasons (especially the president's follow-up letter* accepting Danielle Sassoon's resignation) would not serve their deeper function if they were not facially absurd and humiliating to those offering them (assuming a lack of ignorance and the capacity for shame) and publicly offered. A serious effort might indicate the belief that a serious effort is called for, and that a proper counter-argument might change one's mind despite the presidential will. Obviously the justifications and arguments are lies, marginal fig leaves for a corrupt deal. But the important thing is that they be visibly bad ones. Anything else would be contrary to personalist administration, both because a proper effort at justification would imply that the president cannot do as he wishes, and because they would not provide the requisite element of self-abasement on the part of the people offering them. This administration's fundamental approach to securing the personal loyalty of its officials it to require that they behave in a way that leaves them fit for no further decent use elsewhere. And advertising the fact that unfitness and unseriousness are job requirements for service in the administration helps winnow the pile of resumes. Every administration has its share of individuals who are vice-ridden, casual or contemptuous of the truth, lacking in character, dishonest, care too much about their own skin, curry favor, flatter like sycophants, and, yes, have the personality of dockside bullies. What is unusual is the structuring of an entire administration to make this a feature, not a bug.  

* Technically, some of these arguments were not made by the president himself, but by underlings like Emil Bove. It seems fitting to attribute his words, and Homan's to the president directly, since the indivisibility of this executive branch is its basic position. Trump's own statement that he "know[s] nothing about the individual case," which is also probably a lie, are irrelevant.  

Posted by Paul Horwitz on February 14, 2025 at 05:39 PM in Paul Horwitz | Permalink | Comments (0)

Thursday, February 13, 2025

The Core Problems with Boycott and Divestment

The Alliance for Academic Freedom, of which I am a member, has issued the following statement on academic boycotts and university divestment. I am in full agreement with the position on academic boycotts. I am less certain about divestment, however, because (1) it does not implicate academic freedom, and (2) investment decisions are always necessary, unless the university is to pursue a single-minded goal of income maximization. In other words, the objections to academic boycotts are principled; the objections to divestment are pragmatic, which leaves room for discretion.

[Also, the British spellings below are due to the statement's initial publication in the UK journal Fathom.]

The Core Problems with Boycott and Divestment

The authors (Cary Nelson, Susana Cavallo, David Greenberg, Rebecca Lesses, Jeffry Mallow, and Stan Nadel) on behalf of the Executive Committee of the Alliance for Academic Freedom, offer a concise and accessible summary of the arguments against both boycott and divestment.

Continue reading "The Core Problems with Boycott and Divestment"

Posted by Steve Lubet on February 13, 2025 at 05:42 AM | Permalink | Comments (0)

Wednesday, February 12, 2025

Symposium: "In Search of Common Ground: Religion and Secularism in a Liberal Democratic Society"

I'm looking forward to this symposium, being sponsored by the Chicago-Kent Law Review: 

Over the past several decades, America’s religious diversity has continued to grow rapidly, as have the percentages of Americans who either are not religious or are not affiliated with a specific religious group or denomination. At the same time, America’s deepening cultural and political divisions have often followed these expanding religious fault lines. These developments have raised new challenges for defining the relationship between law, religion, and secularism under the Religion Clauses of the First Amendment and beyond. At the Chicago-Kent Law Review’s Symposium, leading law-and-religion scholars who represent a broad spectrum of views will explore a range of doctrinal issues – such as free exercise exemptions, government expression and funding, and the meaning of religion under the First Amendment – and will discuss how people who hold very different worldviews can live together in contemporary society.

The public is welcome to sign-up and participate so . . . "see" you there!

Posted by Rick Garnett on February 12, 2025 at 11:22 AM in Rick Garnett | Permalink | Comments (0)

Lincoln and Liberty

Today is Abraham Lincoln's birthday -- none of that "Presidents' Day" stuff for true Illinoisians. In 1860, the ardently abolitionist Hutchinson Family Singers toured the country performing "Lincoln and Liberty," which may have been the first campaign song to qualify as an actual hit.

I think Ronnie Gilbert's lyrics are more likely from the 1864 reelection campaign, given that they call Lincoln as "our Chieftan," and the promise to "fight till our banner's victorious." (Also, "the Suckers so lucky" does not refer to gullible people, but rather to Illinoisians, whose nickname, long since abandoned, may have come from the ease of digging wells. Either that or the origin is unknown, like Hoosiers.)

The tune was taken from an Irish fiddle song called "Rosin the Beau."

 

 

Posted by Steve Lubet on February 12, 2025 at 04:03 AM | Permalink | Comments (0)

Tuesday, February 11, 2025

"Forgiveness," Modified: The Abasement Principle

Over at the Volokh Conspiracy, a modest proposal for a constitutional amendment providing that "federal and state elected officials can be indicted while in office, but cannot be tried for those indicted offenses until after they no longer in that elected office." The proposal, derived from Texas's so-called "forgiveness doctrine," is aimed at curbing "Lawfare," admittedly an undefined and imprecise term whose bounds are as difficult to figure out as its harms are "difficult to quantify." (Public discourse these days seems to run, a remarkable amount of the time, on neologisms and coined phrases. This is not new--"McCarthyism" has stood in for a great many things--but it does seem especially widespread in our age of morons with megaphones. The habit is even more popular among the highly credentialed morons, who seek primacy or "novelty" in crowded, competitive scholarly and discursive environments. I see little evidence that these coined words and phrases play a clarifying role. My rule of thumb is that if a thing is worth saying in one word, it's worth saying in five clearer words from our existing store of English.)

It's an interesting proposal. But it's not sufficient, for a couple of reasons. A full and proper act of forgiveness usually entails some degree of acknowledgment by the wrongdoer of his or her misconduct and some degree of repentance. It may be impractical to have this process occur through an effort to communicate with the entire electorate. But it is possible to have a single figure stand in for the public in this step. The obvious candidate is the president, with his or her singular nature. 

The other problem is that, insofar as the doctrine is in part fitted to making officials "of use [to] the executive branch" as a figure willingly carrying out the president's will, too absolute a rule leaves a disturbing amount of freedom on the part of the local or federal officer not to serve the presidential will. Local and federal officials owe obligations to their voters and to the laws and Constitution of the United States and of the several states. What if they put things like local political sentiment above service to the president, who may be the locus of a profound popular national mandate? What if they embarrass the president--the representative figure, remember, in the forgiveness process--by disagreeing with him or publicly correcting an obvious lie or error on his part? Can we still call the forgiveness process complete under such circumstances? No. A sword of Damocles is needed--some ability on the president's part to require an ongoing show of repentance and fealty, with the reprieved figure knowing that the president can order the charges to be refiled at any time and may or may not issue a pardon.

In place of the proposed "forgiveness" doctrine, then, I suggest a modification: an "abasement doctrine." Under this doctrine, officials seeking some measure of grace or favor from the president, such as intervention into an ongoing criminal investigation or prosecution, must make a public show of self-abasement. In putting themselves in the president's good graces, they show that they are truly sorry for their wrongdoing. By leaving it entirely to the president's own discretion whether to forgive or not, the abasement doctrine ensures that both repentance and forgiveness are willing and voluntary. Because the forgiveness, along with the suspension of criminal charges or other consequences, is still within the president's discretion, the abasement doctrine requires the person seeking forgiveness to make a clear showing of self-abasement.

This required showing might be satisfied through various forms of public self-humiliation, such as agreeing with patently false factual propositions, denying one's previously stated policy positions with little or no persuasive explanation, praising the non-praiseworthy and condemning the virtuous, or even publicly denying and befouling one's most dearly held principles, sneering at one's own religious faith, and so on. Someone willing to do this is clearly going to be subservient to the embodied national political will. And since all of this takes place under Damocles' sword, a point that might be reinforced if the president pretended to act in a mercurial, prickly, arbitrary, easily offended manner, the person seeking forgiveness knows that it can be withheld at any time, with or without good reason. Such an individual--already demonstrably willing to abase himself and now also under a continuing and uncertain threat of punishment--will surely do everything in his power to be of use to the chief executive. 

Although the abasement doctrine might, in a technical sense, apply only to a narrow set of conduct, the general principle might be extended usefully throughout further policy realms. This is especially true in a maximal Article II world, but that in itself is insufficient. Policies might be centralized, made through executive orders rather than legislation. And the policies themselves might be selected to enhance the opportunities for presidential forgiveness and individual or collective abasement. If policies were not only made through executive order rather than legislation, but also employed policy instruments that maximized opportunities for individual exemptions and exceptions, the president might more fully exploit the abasement doctrine--now more of an abasement principle--to ensure their ongoing loyalty and obedience. Tariffs, for example, may serve the abasement principle far better than more economically "conventional" or "sound" but non-abasing forms of national trade and business policy. Suspending all national business, on a non-legislative and non-agency-driven basis, while exempting or reviving only those programs favored by the president would also create multiple opportunities for shows of abasement. 

I can already hear the objections. Doesn't such a policy encourage people with genuine principles and and a sense of character and virtue to avoid public office? Doesn't it incentivize the craven and cowardly? Will it disserve rule of law values? What if a president is not pretending, but actually is arbitrary, whim- or ego-driven, quick to attach personal slights to what are actually matters of office, insistent on personal loyalty rather than loyalty to law? Even if it makes the most sense to use the president as the locus of the forgiveness process, doesn't this encourage a departure from virtuous, law-obedient, reasoned government in favor of personalism or even a form of personalist dictatorship? Did you not read A Man For All Seasons?

I am aware of all these costs. But there are benefits. I think. Maybe. Actually, I'm not sure. It's entirely possible that this is not so much of a cure for a problem and more of a rationalization for a democratic and rule-of-law cancer. ("It's painful, brutal, and mortal. But you'll lose weight.") Still--it's worth thinking about!  

 

Posted by Paul Horwitz on February 11, 2025 at 09:08 AM in Paul Horwitz | Permalink | Comments (0)

Monday, February 10, 2025

Does Justice Barrett's Recusal Give Us Hope That She Will Stand up to Trump?

So I suggest in my new column for The Hill. Here is the gist:

Among Trump’s three appointees, Justice Amy Coney Barrett is probably the likeliest defector, having disagreed with the other conservatives (although not voting against them) in two of Trump’s 2024 election cases.

Barrett has also shown admirable integrity. She recently recused herself from an Establishment Clause case over public funding for religious charter schools, an issue that would ordinarily be important to her.

Perhaps it seems that I have only suggested rearranging the deck chairs on the Titanic, but even that can be useful if they get in the way of the lifeboats. 

You can read the entire piece at The Hill.

Posted by Steve Lubet on February 10, 2025 at 04:13 PM | Permalink | Comments (0)

Sunday, February 09, 2025

Redefining chutzpah or the continued death of corporate media

This op-ed, enumerating Trump's many constitutional abuses and insisting that "this unconstitutional overhaul of the American government — far more sweeping, haphazard and cruel than anything he campaigned on" is not what voters signed up for. Here is the call to action:

America faces a new reality, and it demands wisdom, endurance and courage. The United States is now led by a president who appears willing to stampede over any person, law, congressional statute or country that stands in his way. He is driven by impulse and is disinterested in rules, history or reality.

How Americans and the world handle such a president will determine much about the next four years, and it will ask much from all of us. We must meet the moment. Mr. Trump won the election fair and square, but his position is that of president, not king or god-emperor. Every time Congress allows him to exceed his constitutional role, it encourages more anti-democratic behavior and weakens the legislature’s ability to check further erosion of the norms and values that have helped make this nation the freest, richest and strongest in the world.

Nonsense. Trump campaigned on all of this, certainly in kind and mostly in degree. To the extent Trump did not discuss some of these things, Project 2025 laid it all out. But The Times spent the campaign sanewashing his comments about this stuff, accepting his (disprovable) denials about Project 2025, and downplaying (the old "seriously, not literally" or whatever nonsense) the threats. And the news section continues to give less attention to--or downplay the import of--for example, Musk's IT abuses compared with how it covered Hillary's emails. The campaign presented the opportunity to highlight and draw attention to the abuses Trump promised, to paint the real picture for the public.* To have covered the campaign as it did--and to continue to cover Trump as it does--and then shame readers for not fighting back harder redefines chutzpah.

[*] Perhaps it would not have mattered. We'll never know.

To its credit, it published this essay from Katherine Stewart, which begins: "They told us they would smash the institutions that safeguard our democracy. And that is exactly what they are doing. Many Americans chose not to believe what they were saying. Will we now believe what we are seeing?"

Posted by Howard Wasserman on February 9, 2025 at 06:16 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Saturday, February 08, 2025

Saturday Music Post - Glad All Over

(That is precisely how I do not feel these days, given the political situation, but I queued this up last summer.)

In 1964, The Dave Clark Five's "Glad All Over" became the first British Invasion hit by a group other than the Beatles. Written by Dave Clark and Mike Smith, it reached number 6 on the U.S. Hot 100. To me, the song is most memorable for the interplay between Smith's vocal and Clark's drum riff: "I'm feelin' -- bam bam -- "glad all over." One reviewer aptly described the track as a "happy-go-lucky pounder."

There were surprisingly few covers, so I included a couple of surprises at the bottom of today's post at The Faculty Lounge.

Posted by Steve Lubet on February 8, 2025 at 04:00 AM | Permalink | Comments (0)

Thursday, February 06, 2025

What happens on Pullman Abstention

The Fourth Circuit abstained under Pullman from the dispute over the North Carolina Supreme Court election; the district court had abstained under Burford, which the court of appeals said was the right conclusion for the wrong doctrinal reason.

But the court's explanation of the difference in coverage and effects seems off. Pullman is appropriate because unclear state laws may moot a federal constitutional claim. True enough. But Pullman differs from Burford in that Pullman requires the federal court to retain jurisdiction should state litigation not moot the federal issues. Under Burford, the district court dismisses because the dispute will be resolved in the state's complex remedial system (the reason for abstaining in the first place) and the case will not return to the district court. The court ordered the district court to retain jurisdiction over the federal issues, citing England.

The court relied on long-standing precedent for this, but it seems wrong. Pullman should require dismissal of the action to allow the parties to fully litigate state issues through the state judiciary. The case may return to federal court, but it does so as a new lawsuit. England does not address the court retaining jurisdiction. It allows the plaintiff to "reserve" the federal issues in state court, thereby avoiding claim preclusion upon possible return to federal court with the new purely federal action.

Retaining jurisdiction following Pullman abstention also destroys the distinctions with certification. Certification was a more expedient alternative (a "more precise tool," as Justice Sotomayor put it) because: 1) it went straight to the state's highest court and 2) the federal court otherwise retained the action pending resolution of the state questions. The Fourth Circuit's approach destroys one of those two distinctions.

Not the biggest deal given everything else being litigated in federal courts (more on that later). But a notable example of how lower courts go in strange directions.

Posted by Howard Wasserman on February 6, 2025 at 10:48 AM in Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Wednesday, February 05, 2025

JOTWELL: Bartholomew on Noronha on equitable awards

The new Courts Law essay comes from Christine Bartholomew (Buffalo) reviewing Alexander J. Noronha, On Behalf of All Others Similarly Situated: Class Representation and Equitable Compensation, 122 Mich. L. Rev. 733 (2024), on the equitable origins of class-rep awards.

Posted by Howard Wasserman on February 5, 2025 at 07:38 PM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)