Am I mistaken in thinking, as I wade through the flood of abstracts for new articles making their way onto SSRN, that this publication cycle faces a stark problem of sudden, unintended irrelevance and forced dis-"engagement" in this year's crop of legal scholarship, at least in public law?
It seems to me that a great many public law articles coming down the pike right now a) deal with issues that were contemporary a short time ago but have been utterly superseded by events; b) assume a host of premises--about methodology, the functioning of courts or executives, about the basic norms of law and the functioning of government, even about fundamental values and even fundamental facts--that are now inoperative or in doubt and newly in need of justification; or c) deal with ideas and proposals that the authors treat not as abstractions but as feasible, practical, going concerns, but which have in fact been rendered as mythical and fanciful as hippogriffs.
I'm not referring to articles that the authors are fully aware are abstract, theoretical, fanciful, imaginative, impractical, or otherwise deliberately disconnected from current events or some reasonably immediate practical goal. Nor am I criticizing that kind of scholarship, at least if it is clear about what it is. (It does seem to me, though, that even these forms of scholarship will often suffer from the problem noted in (b) above. However abstract, they will still often implicitly or explicitly rely on premises that are now in doubt.) But plenty of legal scholarship is not so abstract. It is more immediate and practical in its purpose, aims to respond to current events, advances a goal-oriented political position, or seeks to have some effect in the world on a reasonably short timeline. That's always been true for legal academic writing, for reasons that hardly depend on contemporary politics or scholarship. Rather, it's simply in the nature of the American legal academy, which is still substantially a professional adjunct rather than a university enterprise, and which, despite its trappings, is still structured on a more or less non-scholarly and non-intellectual basis. That orientation is no less present in an era in which current buzzwords like "engaged scholarship" or older ones like "praxis" pop up with regularity. (Although, in fairness, articles that brandish phrases like those are often less practically oriented, and in some ways less "engaged," than, say, the average student comment.)
It's this scholarship--or so I keep thinking as I peruse the current crop of draft articles--that has been wrenched into substantial irrelevance and "dis-engagement" by events. They read as if the author had bet on a different horse to win. Or they rely on formerly applicable understandings and definitions of political and ideological terms which have been thrown into flux. (Although that flux has been evident for some time.) Or, most understandably, they did neither of these things, but simply failed to account for the degree of disequilibrium we now face. This is not, to be clear, a knock on their quality. Rather, it's a matter of the sudden gulf between their claims to or hope of relevance and engagement, and the reality into which they now emerge. There is already often a gap, borne of the authors' location within the bubble. This is something much more than that.
Of course this kind of thing happens any time there are significant changes in facts or law, with the ideas that might explain or account for them necessarily needing time to be worked out. We saw some of this with the first Trump term. It took a while before the law reviews started filling with discussions, often excellent, of constitutional and political "norms," illiberalism, and so on. But the disjunction was far less extreme, because that administration featured a larger number of political appointees and career employees who, quaintly, were competent, experienced, conservative, and would reject as contemptible any pledge of personal loyalty to an individual rather than to an office and to the laws and Constitution of the United States. The current personalist regime is being run on a different basis.
Clearly it won't be long before the machine starts turning out scholarly responses to the current moment. In the meantime, it seems to me that we are about to see a volume of public law articles--including, I'm sure, a fair number of articles operating from conservative premises--whose claims of relevance or engagement were blown out of the water even before they were submitted, and must now be read as abstractions, markers for the future, or memorials.
Preliminary injunction does not create prevailing party
So Lackey v. Stinnie holds 7-2 (Roberts for the Court; Jackson, joined by Sotomayor, dissents).
The majority adopts a categorical rule: A plaintiff never prevails based on preliminary injunctive relief; a judicial order must establish the enduring change to the relationship with the defendant to establish prevailing-party status. A case that ends on anything other than a final judicial decree on the merits (or its equivalent, such as a consent decree) render the preliminary relief "fleeting" rather than enduring. In this case (reflecting a common sequence), the government mooted the case by repealing the challenged law after the preliminary injunction. Thus, although the PI gave the plaintiffs what they wanted from the litigation--their licenses back and the opportunity to drive--and they retain those licenses after the end of the litigation, plaintiffs do not prevail because they did not get this relief (the ability to drive) from a final court order. Problematically, the court adopted the categorical bar that had been the law in the Fourth Circuit until the en banc court below in this case overruled its precedent. The court rejected more-nuanced approaches in some lower courts, which consider the basis of the PI (was the focus on the merits or on irreparable harm) and how much the PI relief endured by the end of the case.
According to the dissent, the majority conflates the need for success when the case ends (which dictionaries define as creating prevailing-party status) with the need for a judicial ruling on the merits to end the case. If a plaintiff gets what he wants early in the case and retains it at the end of the case, it does not matter why or how the case ends. This is particularly true where the case ends as moot--whether because the government moots by ceasing the challenged conduct (as here) or because plaintiffs sought specific short-term relief that ends when the short period lapses (e.g., protesting at the DNC on three specific dates). Plaintiffs got everything they want from litigation (the right to keep their licenses or to protest) but no longer can recover fees in either case.
The case echoes Buckhannon Bd., the Court's last major attorney's-fee case, in a number of respect. Buckhannon rejected the "catalyst theory" (allowing plaintiffs to prevail if the lawsuit prompted the government to change its challenged conduct prior to any judicial ruling); Lackey extends Buckhannon to require that the judicial ruling finally resolve the case.
• Lackey rejects the view of every court of appeals (11) to address the issue; Buckhannon adopted the view of the one circuit (ironically, the Fourth) to reject catalyst in the face of eleven adopting it. Not sure how the results of "percolation" should affect SCOTUS--if lower courts agree on a legal question, does that suggest something about the "correct" answer to which the Justices should defer?
• Both cases turn on the importance of a judicial order as opposed to practical relief. Buckhannon and Lackey together require a final judicial order for prevailing-party status. Both dissents argue that the point of litigation is to get something in the real world (money or the right to engage in or be free from some conduct); the judicial order is the means, not the ends.
• Both cases involve quarrels over efficiencies. Both majorities insist that their bright-line rules limit wasteful satellite litigation over fees; both dissents insist that the majority creates perverse incentives for plaintiffs to litigate longer, seek nominal damages for no good reason, and to resist mootness or settlement to maintain the possibility of prevailing-party status by getting to a final judicial order. Both dissents insist that the majority disincentivizes attorneys from undertaking cases (§ 1988(b) seeks to encourage representation) for fear that their efforts will not reach final judgment despite their basic merits; the majority dismisses these concerns as "entirely speculative."
The outcome surprises me a bit given the ideological drift of constitutional litigation. Lackey has a liberal bent--a challenge to a state law burdening criminal defendants (mostly poor and of color). But the increasing use of § 1983 litigation (and thus of § 1988(b)) attorney's fees for conservative causes means this decision will affect the other side. An anti-abortion group hoping to display photos of aborted fetuses at a particular intersection on a given date will not be a prevailing party. See how this plays out.
Following up on the efforts to recuse a judge from hearing a challenge to a trans-athlete policy because of the judge's standing courtroom practices: Judge Crews (D. Colo.) refused to recuse and refused to rescind the courtroom pronoun policy. Crews (and his courtroom policies) have not stopped plaintiffs' attorneys from misgendering the trans athlete at the heart of the case (who is not yet involved in the litigation and thus not protected by the policy). And Crews twice told counsel that he would refer to the athlete by female pronouns as a matter of courtesy and respect (as he is duty-bound to do) but this should not be confused for prejudgment and did not require plaintiffs to do the same. It seems to me we are in Rick's baseline hell here because any judicial practice will reflect the goals of one side in a case such as this--a judge who insisted on using male pronouns to describe a trans-woman athlete could be said to prejudge the matter by accepting plaintiffs' arguments about biological sex.
But then Judge Dale Ho (S.D.N.Y.) recused (paywalled) from a challenge to a minority-supporting investment fund because of his courtroom policy encouraging participation of less-experienced attorneys, including those from historically underrepresented backgrounds; lawyers from Consovoy McCarthy alleged the policies violate Equal Protection and reflect prejudgment in the case. Consovoy attorneys made the same move against another S.D.N.Y. judge, prompting her to rescind a similar policy.
As a matter of prejudgment and judicial ethics (which I do not study), are these cases distinguishable? I do not believe either reflects prejudgment; judges must be free to enact lawful policies until they cease to be lawful. A judge's lawful practices cannot be the basis for recusal once a case comes around that might challenge or be inconsistent with those practices. Otherwise, parties pushing litigation positions would be able to pick their judge--only a judge who has never sought to advance racial minorities or to show respect for trans people in an (at-the-time) lawful manner. And we are back in baseline hell. Unless it depends on the courtroom policy--is there a difference between a "be respectful in my courtroom" policy and an "enhance the diversity of the bar" policy, in terms of what judges should be doing?
Amid genuine government efforts to restrict or retaliate against speech--the White House limiting AP access because of objections to its style guide, deputized private thugs removing people from town hall meetings, government stripping funding from universities where researchers focus on certain topics and viewpoints--some have returned to the infamousHarper's letter of 2020. They wonder-facetiously, since we all know the answer--whether the Harpers authors worry that government threats to suppress speech (as opposed to annoyed readers complaining about the authors themselves) threatens "the free exchange of information and ideas, the lifeblood of a liberal society" or creates a "stifling atmosphere [that] will ultimately harm the most vital causes of our time." Does a promise from the Acting U.S. Attorney for the District of the District of Columbia (and nominee for the permanent slot) to "be vigilant in standing up against entities like the AP that refuse to put America first" suggest that "journalists [will be] barred from writing on certain topics" and face "swift and severe retribution" for what they say? Or is that only when it comes from an Oberlin sophomore complaining about these authors rather than the machinery of the United States government.
I do not expect intellectual honesty from Bari Weiss and her fellow travelers (and some of the Harper signatories should have known better, even in 2020). Most do not fear reprisal from this administration and do not care that their critics or ideological opponents will face such retribution:
"Hey, please be thoughtful in how you write about powerless trans people"--dire threat to free speech.
"You lose your government funds if you use the word trans person and your ability to access common spaces if you do not describe bodies of the water with out preferred terminology"--no problem.
I think we are witnessing the Converse Cry-Wolf. It is not that these people screamed about threats to free speech for so long that no one believedsthem when they now warn about real threats to free speech. It is that these people do not even recognize, acknowledge, or care about these real threats to free speech.
I wrote about the controversy over the tush-push* as a sports rule and possible efforts to ban it. An unidentified team (ed.: Turns out to be the Packers) has submitted a proposal to ban the play, citing health-and-safety (as opposed to competitive-balance) concerns. We will see what happens.
[*] The Eagles (who, apropos of nothing, will not visit the White House) play is officially called the "Brotherly Shove," so the Yiddish should not have found its way into the Super Bowl.
Vain, Wrong, and, Dangerous. But at Least His Grammar is Awful.
One might say that Ed Martin is a gift that keeps on giving, or at least that he can be relied upon to serve as the entertainment between episodes of terrible behavior at Main Justice, were it not for the fact that he currently serves as a federal law enforcement official. That somehow takes the joke out of things, leaving me to wonder what you call something that is ridiculous without being at all funny. Outrageous, I guess, in the sense that it evokes outrage in decent people. Or perhaps horrifying.
I think a government that not only steeps itself in social media (a mistake administrations have been making, while congratulating themselves for being savvy, since Obama) and uses Twitter as the administration Slack page, but also takes its cues for how to speak and behave directly from those sloughs, is acting unwisely and dishonorably. Regardless, I'm not inclined to treat any given stray remark, often by some punk staffer, as the last word about that office or officer's views. But when you say something that contains multiple errors, all quite telling, and take the time and effort to make the graphics all pretty, I think at some point your audience is entitled to conclude that you have moved beyond slips of the tongue or pen. Especially if you put it up on your (currently misnamed) official Twitter page.
The message in question:
Start with the fact that Martin, not having been confirmed by the Senate, is not the the U.S. Attorney for D.C. yet; he remains the interim U.S. Attorney. A pedantic point, to be sure--unless you are addressing someone whose amour-propre led him to insist on being referred to as "U.S. Attorney" in court filings within days of taking his interim position. Add the general idiocy about putting America first--if not as a misunderstanding of journalism, then as evidence of ongoing ignorance of, indifference to, or contempt for Title 1.7 of the Justice Manual (in fairness, he is only the interim U.S. Attorney), as well as of general principles of discretion and good taste. Add the gross misunderstanding of who he and his office represent. (Also in fairness: Martin is not always clear on who he represents.) At that point, the misplaced apostrophe and incorrect plural has to be seen as the cherry on top.
I would like to greet this with better humor. Everyone loves a clown, after all. But I am so fond of the First Amendment. And the interim U.S. Attorney has spent a busy week or two demonstrating a decidedly dubious regard for it. His tryout round was bad enough. But his letters of last week, seeking "clarification" from Democratic members about speech he treated, absurdly, as raising "threat" concerns, suggested that he is elevating the use of state power to chill speech from an unforced error to a mission.
Like FIRE, whose statement I link to immediately above, I spent much of last week thinking of this in terms of a governmental abuse of true threat doctrine. But I think that is giving Martin too little credit for ambition, and paying too little attention to the content and context of the statement from Sen. Schumer (an asinine statement, to be sure) that Martin targeted for inquiry. Really, this is more properly seen as a revival--impressively, in the absence of anything like a war or emergency--of circa-1917 views on incitement. "The Alien and Sedition Laws constituted one of our sorriest chapters, and I had thought we had done with them forever." I rarely feel the need to quote Justice Douglas, but, I guess, never say never again.
A clown, as I say. But more in the Pennywise vein--still a clown, but also dangerous and scary. As always, in this personalist or patrimonialist administration as in any other, the final blame rests at the top. But it certainly includes the interim U.S. Attorney himself.
Well, what we're seeing play out is this wrestle between the three branches of government. We'll find out. And this is the beauty of the system--* Well, listen, I believe in the Constitution, right? I believe this is how we test the Constitution. And people have said, oh, this is a constitutional crisis. And I say, exactly the opposite. It's proving to work. We have the courts playing it. We have Congress who will play in. We have the ability, I think we hold a lot of responsibility for what's happening right now. We could solve the budget as Congress. We could solve the border, and we haven't. And both parties, when Congress doesn't do their job in the White House, have a tendency to try to solve it. Let's let this play out by the Constitution and- and then Congress, let's step up, right? We need to- I'll be the first to say we. This is a problem the Congress is, in many cases, has given the American people.
He has been taking some crap in some quarters, especially for the part about "test[ing] the Constitution. "No," they respond, "we follow the Constitution, we do not test it." But while "test" is a bad word choice, I am not sure he is wrong.
The retort of "we follow the Constitution" begs the question because no one knows what the Constitution means and no one has the final word on the meaning of the Constitution. Trump and his minions (presumably) believe what they are doing is lawful and pursue this course on that belief; other constitutional actors (namely the courts) express their views, but that plays out within a somewhat lengthy process. Alternatively, Trump and his minions know what they are doing is unlawful (or at least do not care); other constitutional actors (again, the courts) may bring them to heel, but that plays out within a somewhat lengthy process.
Ultimately, Curtis gave a procedural response to a substantive question. Host Margaret Brennan (who is so far out of her depth) asked whether Curtis had a point of view of the wisdom of everything Trump is doing and whether he is pursuing a good course of governance, a question about the substance of his actions; Curtis responded with a procedural answer--the Executive acts, other branches respond, and we get an answer to the immediate question. But that tells us nothing about whether he--a member of the Senate and a constitutional actor--believes the President should do th4ese things. He punted to "the courts will tell us whether it is valid" as "the beauty of our system." (Seemingly without recognizing Congress as a constitutional actor and his role in that process).
This distinction among constitutional procedure, constitutional substance, and policy substance confounds most discussions. Take birthright citizenship. The President did not "act like a king" in issuing the EO if he believes that Kim Wong Ark is wrong or distinguishable; he acted on his independent constitutional judgment, which can be challenged in the other branches. The real issue is the substantive--whether his view (and the views of conservative scholars rallying to his defense) is defensible. Or take firing military leaders or pardoning J6 insurrectionists or appointing nut jobs to high offices. This is not a matter of constitutional procedure or constitutional substance--no one doubts the Commander in Chief can fire who he wants to and no one doubts the pardon power; it is pure policy (or norms, if you like) and how we believe leaders should act in office.* And this is actually where Congress--a rival policymaking body--can but fails to act.
[*] Sandy Levinson might say it reflects constitutional substance by exposing the many defects in the Constitution. Fair enough. But we are stuck with the Constitution we have.
Interviewers and commentators should maintain these distinctions. If Donald Trump is acting like a king, it is not necessarily because he has exceeded his constitutional powers-the President has quite broad, and ill-defined, powers. It is that he is governing in an objectionable way that maximizes his power towards bad ends. So the question for congressional Republicans should be "Do you think it is a good idea to have Dan Bongino as Deputy FBI Director or a statutorily unqualified person as Chair of JCOS or to eliminate top military lawyers or to eliminate birthright citizenship." The question should not be "can the President do this," because the answer is always either "yes" or "we'll let the courts decide."
Why Barnett and Wurman Are Wrong about Trump's Attempt to Abolish Birthright Citizenship
My new column for The Hill explains why Trump’s attempt to abolish birthright citizenship is unconstitutional, even though Randy Barnett and Ilan Wurman believe he has a good case. Here is the gist:
Two prominent law professors have taken Trump’s side, contending in a New York Times opinion essay that the president actually has a good case.
They are wrong. Trump’s executive order grievously misconstrues the 14th Amendment, and the professors’ support for it is badly misguided.
The greatest danger of Barnett and Wurman’s theory is that it would create a perpetual underclass of individuals excluded from the social contract. That is precisely the evil the 14th Amendment’s birthright clause intended to remedy.
The premise of the Dred Scott case, per Chief Justice Roger Taney, was that Black people, whether enslaved or free, could never be members of the American “political community,” and thus had no claim to citizenship.
It took a constitutional amendment to undo the damage by, as the Supreme Court said in Wong Kim Ark, placing it “beyond doubt that all blacks, as well as whites, born . . . within the jurisdiction of the United States are citizens of the United States.”
Barnett and Wurman’s theory would recreate a similarly inferior status for the children of “unlawful entrants,” casting them permanently outside the national social contract solely by virtue of their birth. That is not merely a faulty argument; it is a pernicious one.
I previouslycriticized efforts by some Democrats and non-conservatives to defuse Democratic vulnerability to anti-trans demagoguery by sacrificing minor issues such as sports participation in favor of major issues, such as allowing trans people to live their lives, including their names and pronouns. I argued this cannot work because those opposed to trans rights (which has become the entire Republican establishment) do not and will not draw these distinctions--recognizing trans people is objectionable in all forms and contexts.
Case in point: Attorneys in the lawsuit (in the District of Colorado) challenging the Mountain West Conference's trans-participation policy have moved to recuse Judge Kato Crews from the action. The reason? Crews (along with several other judges on the court) adopted a joint set of practice rules, including a provision inviting counsel to identify the pronouns of relevant actors in each case and to use appropriate names and pronouns in court. They argue that the policies restrict the speech of plaintiffs and lawyers (which, yes, procedural rules do that all the time) and demonstrate bias--"An impartial forum cannot exist where the Court has so forcefully signaled the Courts’ personal views on sex and gender identity that the Court is willing to use its contempt power to enforce those views."
In other words, they object to anything recognizing the humanity and equality of trans people and have no interest in some compromise in which trans people can live as they want, as long as they stay out of certain limited areas (such as women's sports). Conversely,they allow no space for the sort of compromise some propose--asking a lawyer to be respectful and not be an asshole to a trans person during litigation reflects bias and prejudgment about the bigger issue of sports participation.
I expect Judge Crews to deny the motion. But it gives us a sense of where we are.
Updated:Marty Lederman discusses the case on Bluesky, including a link to the motion with asks Judge Crews to rescind his court rules. Marty frames this within a pending Sixth Circuit case in parents claim their children have a First Amendment right to misgender their school classmates. Whatever the outcome there, I agree with Marty that it is absurd to think the First Amendment precludes courts from regulating how attorneys and parties refer to one another in the litigation process.
"When Will I Be Loved" was written by Phil Everly and recorded for the Cadence label with his brother Don in 1960, but not immediately released. The Everly Brothers moved to Warner Brothers shortly afterward and rerecorded the number in the softer pop style. Fortunately, Cadence was still able to release the original cut which was the last of the brothers' great rockabilly numbers. Linda Ronstadt, of course, had an even bigger hit with her release in 1975, and most covers since then have been of her version, as you see today at The Faculty Lounge.
HHS orders CDC to halt some vaccine ads, saying RFK Jr. wants message focused on ‘informed consent’
The Centers for Disease Control and Prevention was ordered to shelve promotions it developed for a variety of vaccines, including a “Wild to Mild” advertising campaign urging people to get vaccinated against flu, two sources familiar with the decision told STAT.
The Department of Health and Human Services’ assistant secretary for public affairs informed the CDC that HHS Secretary Robert F. Kennedy Jr. wanted advertisements that promote the idea of “informed consent” in vaccine decision-making instead.
The decision to pull flu shot advertising is an early sign of how RFK Jr. may shift the U.S. approach to vaccinations as the nation’s top health official. Others came Thursday as well: The CDC’s influential vaccine advisory committee postponed a meeting scheduled for next week, and Politico reported that RFK Jr. may remove some members of that committee and other influential public health bodies, claiming they have conflicts of interest.
JOTWELL: Wasserman on Berman on personal jurisdiction
I have the new Courts Law essay reviewing Paul Schiff Berman, The Future of Jurisdiction, 102 Wash. U. L. Rev. ___ (forthcoming 2025). I plan to incorporate some of his insights into the course this semester.
Inaugural Law and Political Economy Association Conference
The following is from Luke Norris (Richmond):
Save the date for the inaugural Law and Political Economy Association conference on September 11-13, 2025 at the University of Richmond School of Law!
This conference will serve as the launch for a new Law and Political Economy Association, an organization dedicated to the production of scholarly knowledge by academics, researchers, organizers, practitioners, and others committed to centering issues of political economy in the study of law. We hope that this work can be part of a larger project of imagining and working towards a more democratic, fair, egalitarian, inclusive, and sustainable future.
Look out for a formal call for papers soon – soliciting proposals for papers, paper panels, roundtables, or pedagogy/practice workshops. The conference will also include programmatic meetings and sessions to launch the association. All who are welcome – including and especially those who are LPE-curious!
Members of the Law and Political Economy Association Planning Committee
Zohra Ahmed, Boston University School of Law
Matthew Dimick, University at Buffalo School of Law
Veena Dubal, UC Irvine School of Law
Luke Herrine, University of Alabama School of Law
Tarek Ismail, CUNY School of Law
Jason Jackson, Massachusetts Institute of Technology
Amy Kapczynski, Yale Law School
Martha McCluskey, University at Buffalo School and the LPE Collective
Luke Norris, University of Richmond School of Law
Ngozi Okidegbe, Boston University School of Law
Marissa Jackson Sow, University of Richmond School of Law
Allison Tait, University of Richmond School of Law
Karen Tani, University of Pennsylvania
Lisa Washington, University of Wisconsin Law School
Coincidentally, I had meant to mention Ed Martin in a post yesterday, before seeing the news of his official nomination as U.S. Attorney for Washington, where he has been serving as interim U.S. Attorney. The publicity surrounding Main Justice and the Eric Adams transaction threatened to crowd out the attention Martin deserved for the letter to Elon Musk that he publicized on Twitter last week. That letter assured Musk that Martin's office will "pursue any and all legal action against anyone who impedes your work or threatens your people." It came on the heels of a (legal, legitimate) news story identifying the young men serving as Musk's aides, and another story (also legal, also legitimate) discussing the racist oeuvre of another DOGE aide.
The principle of charitable or "steelman" interpretation always applies first, keeping in mind that there is a difference, when dealing with untrustworthy, corrupt, unethical, and dishonest people and administrations, between considering plausible readings and arguments, as one should, and becoming a sucker or a willing apologist for immorality and barely-reasoned abuse of power. The charitable but, I dare say, dubious reading of Martin's letter is that it referred only to leaks and other government employee sabotage, and to genuine individual threats launched at the DOGE aides following the (legal, legitimate) news stories revealing their identities. I would have no great quarrel, as such, with that, although I would be more impressed by actual charges than by issuing threats with charges to be named later. The less charitable, more plausible supposition was that it was a general, vaguely stated, and speech-chilling because vaguely stated, attempt to use state power to intimidate critics of DOGE, Musk, and/or the administration. This was the most widely shared interpretation. It was buttressed by the openly partisan and unbecoming nature of the letter's concluding lines.
Perhaps. But I think the fullest, fairest reading is available only after surveying Martin's Twitter page. (Alas. I suppose we get the culture we deserve.) Over the three weeks leading up to Martin's nomination, it positively overflowed with obsequious flattery--not only of Trump, but of the Attorney General, Musk, the Vice President, and OMB director Russell Vought. Surely the letter, along with the flattery, can be understood as a threat and an effort to chill and intimidate reporters and critics. But Martin's letter should also, and perhaps primarily, be understood as an audition: as part of an effort to lock up the nomination by reaching, if not the president, then those who currently enjoy his favor and have access to him, adding to the flattery a sign of his personal loyalty both to Trump and to the adjunct president. The dockside bullying was almost incidental, like leaving a calling card.
The letter is bad enough. The nomination is bad enough. Both, in combination with Martin's apparent desire to celebrate February as Unctuousness Month, are awful. One encounters flatterers from time to time, in the academy as elsewhere. But it is rare that one comes across as thorough-going a lickspittle as this. Evidently Martin's efforts were rewarded. One imagines the flattery could only be more effective as a job application than his actualresume.
The Notre Dame Law Review invites proposals for its two 2025–2026 symposia. In accordance with twenty-five years of tradition, one of the Law Review’s symposia will be on a topic related to federal courts, practice, and procedure. The second symposium’s topic is not limited in scope and can focus on any engaging matter.
Previous Federal Courts, Practice, & Procedure Symposium topics include:
State Standing
The Future of Qualified Immunity
Constitutional Structure
The Eleventh Amendment, Sovereign Immunity, & Alden v. Maine
The Judiciary Act of 1925
Previous general symposium topics include:
Constitutional Reconstruction: History and the Meaning of the Thirteenth,
Fourteenth, and Fifteenth Amendments
Contemporary Free Speech: The Marketplace of Ideas a Century Later
Administrative Lawmaking in the 21st Century
Religious Liberty and the Free Society: Celebrating the 50th Anniversary of
Dignitatis Humanae
The American Congress: Legal Implications of Gridlock
The Notre Dame Law Review has a long-standing tradition of hosting symposia that unite well-respected and diverse speakers. Our goal is to foster intellectual engagement and create a forum for all to explore timely legal topics. Traditionally, each participant publishes an article in one of the Law Review’s symposium issues.
What to Include in Your Proposal
Please submit your proposal as a PDF document. A strong proposal should be no
more than five pages and include the following:
A proposed title;
A brief description explaining the topic, its importance, and its relevance (no
more than 500 words);
A list of individuals you might invite to write pieces for your proposed
symposium for publication in the Notre Dame Law Review;
o Please indicate what level of interest each individual has expressed, if
any.
o Please note that symposium issues generally include between seven
and ten articles.
If available, a brief description of proposed paper topics;
A list of individuals who (1) might participate in your symposium without
writing pieces for publication or (2) may be interested in publishing a shorter
response piece in the Law Review’s online journal, Reflection (and what
interest these individuals have expressed in participating, if any);
The name and contact information of the proposed symposium organizer who
would serve as the point person for coordination and decisions with the Law
Review executive board; and
Any potential sources of funding.
Please indicate whether your proposal would require more than one day. Symposia
are traditionally held on a single day.
How to Submit Your Proposal
Please submit your proposal by email to [email protected]. The Notre Dame Law
Review will accept submissions until March 14, 2025. For questions, please email the Managing Symposium Editor, Emily Amershek, at [email protected].
Proposal Selection
The Symposium Team will review each proposal based on the following factors: • Definition and focus of topic • Originality of topic • Timeliness and importance of topic • Experience and expertise of proposed presenters/panelists • Academic quality • Available funding Thank you, and we look forward to hearing from you!
Will SCOTUS allow Congress to protect non-partisan administration of the laws from plebiscitary presidentialism?
It is President's Day, so naturally presidential power and legitimacy are on my mind. In particular, I am wondering how far the Roberts Court will go in vindicating what Noah Rosenblum and I call "plebiscitary presidentialism." By "plebiscitary presidentialism," I mean the view that presidential elections give the President a uniquely democratic legitimacy in the American constitutional system, because presidents alone have a national constituency. As Roberts put it in Seila Law, "the Framers made the President the most democratic and politically accountable official in Government" because "[o]nly the President (along with the Vice President) is elected by the entire Nation. And the President’s political accountability is enhanced by the solitary nature of the Executive Branch, which provides “a single object for the jealousy and watchfulness of the people.” Sure, members of Congress are also elected, but they have parochial state- or district-specific constituencies and therefore cannot embody the will of the nation as does the President. Presidential elections, on this view, are national plebiscites that legitimize the executive branch in a way that congressional elections can never legitimize the legislature.
It follows that the President's "executive power" should be read generously to permit detailed supervision of every official in the executive branch. As Madison said (and Roberts repeatedly quotes), “the lowest officers, the middle grade, and the highest” all “depend, as they ought, on the President, and the President on the community.” In a paper that we recently posted on SSRN, Noah and I argue that United States v. Arthrex took a radical turn towards vindicating this vision of a plebiscitary presidency by protecting not merely the President's power to fire agency chiefs but also to tell every civil servant in the executive branch how to do their job. Arthrex is unique among the Roberts Court's decisions defending the unitary executive from Congress in providing the remedy of override rather than removability: The Arthrex Court re-wrote the Leahy-Smith America Invents Act to confer on the politically appointed Director of the Patent & Trademark Office the power to review and reverse the decisions of the politically insulated Patent and Trademark Boards. Only such a judicial re-write of the statute, the Court reasoned, would ensure that the latter constituted "inferior officers" who were under the direction and control of the President.
Noah and I argue that this extraordinary remedy has important and dangerous implications for the idea of administration of the laws by a non-partisan civil service. It is one thing to say that agency chiefs must serve at the pleasure of the President. It is altogether more radical to say that the President must be able to direct and control every decision by every inferior officer and employee in the executive branch. Statutes, after all, often require that technical criteria be implemented by properly qualified experts, ranging from peer review of NIH grants to recommendations of FDA scientific advisory committees to Bureau of Labor Statistics economists. Is Arthrex really serious that some politically appointed agency chief is constitutionally entitled to revise such decisions according to the chief's own ideas of, say, disease etiology, clinical controls, or statistical error?
After the jump, I will explain (1) why Arthrex might have precisely such an implication but (2) how SCOTUS might avoid plunging into the abyss of such politicized administration of the law by embracing an old concept of apolitical administration. Here's the punch line: That concept was precisely the idea defended by William Howards Taft, author of Myers v. United States and granddaddy of the "unitary executive."
1. The Potential Radicalism of Arthrex
First, consider how Arthrex radically threatens the commonplace idea that apolitical experts frequently have the last word on the implementation of the laws. According to Arthrex, "[t]he Constitution...forbids the enforcement of statutory restrictions on the Director that insulate the decisions of [Administrative Patent Judges] from his direction and supervision," because "[i]n this way, the President remains responsible for the exercise of executive power—and through him, the exercise of executive power remains accountable to the people." Congress, however, frequently requires that politically accountable agency chiefs defer to bureaucratic experts. Consider, for example, the statutory standards for review of drugs' clinical trials. 21 USC § 355(d) of the Food Drug & Cosmetic Act (FDCA) requires the Secretary of HHS to base such reviews on “substantial evidence,” defined as “evidence consisting of adequate and well-controlled investigations . . . by experts qualified by scientific training and experience to evaluate the effectiveness of the drug involved.” Further, §§ 355(n)(1) and (7) requires the Secretary to consider and make part of the administrative record "expert scientific recommendations" from dozens of scientific advisory committees.
As a practical matter, these statutory standards preclude Robert F. Kennedy Jr., our new Secretary of HHS, from reversing the approval of vaccines over the recommendations of his own staff and advisory committees: Under State Farm, any such decision would be arbitrary and capricious because it would ignore, or respond inadequately, to "important" evidence in the administrative record. (On the obvious importance of an agency staff's recommendations, see Dan Deacon's fine article here).
Do these requirements of scientific expertise in the FDCA violates the Arthrex principle that the bureaucratic experts must be under "the direction and supervision" of politically accountable superiors like RFK Jr.? One can argue that, so long as RFKJ can weigh in before courts decide the case by "reversing" his staff's recommendations and offering his own, the Arthrex principle is preserved. Noah and I would indeed be delighted by such a "minimalist" reading of Arthrex. Such a reading, however, reduces Arthrex to a fairly trivial requirement that agency chiefs be entitled to submit their own views along with the views of the civil servants that they supervise. If the statute directs courts to defer to the civil service rather than the agency chiefs, then in what sense do the chiefs "direct[] and supervis[e]" the civil service?
SCOTUS will be pretty busy, however, if it decides to invalidate statutory requirements that the politicians defer to the civil service. Such requirements are ubiquitous in the U.S. Code. The Bureau of Labor Statistics is statutorily charged with collecting "full and complete statistics of the conditions of labor and the products distribution of the products of the same." Such a standard obviously connotes that statisticians, not the Secretary of Labor will call the shots on statistical method with their Handbook of Methods. The National Institutes of Health are required to award grants based on peer review by "scientific peer review groups." Again, there is no way to read that standard without deferring to those peer groups of scientists appointed according to statutory procedures. The power of experts to call the shots extends beyond federal civil servants: By statute, Congress handed off power to define standards to "voluntary consensus standards bodies" like the American National Standards Institute.
Will the Court go full populist and say that Congress is constitutionally barred from requiring the executive branch to honor apolitical expertise in the name of some unwritten principle of plebiscitary presidentialism? Noah and I hope not: For practical reasons, such a step would seriously erode American governing capacity. (Consider this evidence from the USA's own Gilded Age from Abhay Aneja and Guo Xu). But misalignment between Republican and Trumpist politicians and a mostly Democratic civil service could lead to a purge that the Roberts Court might facilitate by striking down laws that insulate the career service from such attacks. Chief among these laws are simply those statutory standards that require decisions to follow the dictates of expertise rather than an agency chief's whim or partisan agenda.
2. Our Arthrex Compromise: Revive Taft's Distinction Between Political Control over "Policy," Bureaucratic Insulation for "Administration"
Noah and I would like to give the Roberts Court a third option between trivializing Arthrex (which we doubt they would do) and metastasizing it (which we wish they wouldn't do). That option is to revive William Howard Taft's distinction between "policy," which must be controlled by the President, and "administration," which can and indeed should be controlled by an apolitical and insulated civil service. "Administration" refers to the implementation of statutory standards that are defined by scientific expertise, technical competence, or practical know-how. "Policy" refers to implementation of statutory standards that leave a gap for presidents to fill with their own enforcement policies. As an example to illustrate "administration," consider the example of the Bureau of Labor Statistics' calculation of the consumer price index. The BLS must use "full and complete statistics," a standard that completely fills up any gap in the statutory standard with implementation rooted in statistical expertise. Politically accountable chiefs can, of course, oversee their economists' development of survey standards for assessing prices, but any such interventions must themselves be rooted in the science of statistics that precludes political control. By contrast, statutes routinely leave giant gaps on enforcement discretion -- i.e, the timing, target, and intensity of enforcement against particular persons. As Heckler v. Chaney noted, this enforcement discretion lies at the heart of the President's Article II power to "take Care that the Laws be faithfully executed," precisely because there is no statutory standard to serve as "a focus for judicial review."
Congress cannot delegate to bureaucrats the task of implementing a non-existent statutory standard, because inventing a standard to fill gaps in statutes is precisely what it means to execute a law, and Article II bars Congress from taking that power away from the President. The President is, in this sense, the gap-filler in chief. Where statutory standards fill that gap by reference to expert criteria, however, then the President is charged with executing only that standard -- and deferring to the civil servants with the relevant expertise is how presidents and their appointees carry out the statute.
Why should the Roberts Court limit Arthrex with such a distinction? The Court is, after all, committed to plebiscitary presidentialism: Should not Article II be read to give the president carte blanche to override their subordinates in the name of We the People?
One reason for the Roberts Court to hesitate in such a populist enterprise is that the administration/policy distinction we defend here was endorsed by William Howard Taft, the inventor of the unitary executive and author of Myers that SCOTUS also purports to defend. In Myers, Taft distinguished between "political" duties and "duties so peculiarly and specifically committed to the discretion of a particular officer as to raise a question whether the President may overrule or revise the officer's interpretation of his statutory duty in a particular instance.” Regarding the latter, the President did not have plenary power to revise subordinates' judgments but instead only “general administrative control.” That control included the ability to “supervise and guide [officers’] construction of the statutes under which they act in order to secure [the] unitary and uniform execution of the laws” and to evaluate and remove lower-level officers if they are “negligent and inefficient.” It did not, however, include any power to remove subordinates for any reason whatsoever -- for instance, to conduct a personal vendetta against the prior administration. Such control also did not allow the President to revise the decisions of the civil service in ways that contradicted the statutory criteria that governed such subordinates.
It should hardly be a surprise that Taft endorsed the administrative autonomy of a professional civil service: Like other Republicans in the early twentieth century, Taft was an enemy of patronage-driven political machines associated with New York City's Democratic Tammany organization. Moreover, as Jesse Tarbert has shown in an important recent book, Taft was a leading member of a group of 1920s Republicans who wanted to build state capacity by professionalizing government. Acolytes of this position included not only Frank Goodnow and Woodrow Wilson, well-known architects of the modern administrative state, but also leading Republicans like Henry Stimson, Elihu Root, and Taft.
The Roberts Court's effort to revive Taft's vision in Myers, therefore, ought to be faithful as well to Taft's ideal of an independent civil service administering statutes according to statutory criteria that the President is legally bound to respect. Whether the Court will jettison that ideal to advance its own vision of a plebiscitary presidency remains to be seen. If it does, however, it will have no one to blame but itself: That plebiscitary vision has nothing to do with the tradition of presidential control in Myers that the Roberts Court claims to revive.
Akhil Amar's podcast recently featured a quote from John Bingham about the Citizenship Clause. For those interested, the quote comes from a speech Bingham gave that was reported by The Summit County Beacon of Akron, OH on September 26, 1867:
"We propose to settle all the difficulty of the Dred Scott Decision by putting it into the Constitution. If a man is not a citizen of the country in which he is born, in God's name of what country is he a citizen? If he may not live there, where has he a right to live? We propose to put it into the power of every man, woman, and child, black or white, rich or poor, when his rights are invaded, to raise his hand toward the flag, and say, I am an American citizen. [Great applause] Why should it not be so, now that all are free?"
Posted by Gerard Magliocca on February 16, 2025 at 01:32 PM | Permalink
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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 gross, 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.
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.
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.
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.
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.
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.
The antizionist encampments that swept universities throughout the west from April to May 2024 made the call to ‘DIVEST!’ from companies doing business in Israel a universal demand. Resolutions on campuses and in local communities often included a demand to boycott Israeli universities and other institutions as well.
Though the encampments were either dismantled or abandoned, new resolutions to boycott or divest continue to proliferate. Some combine divestment and academic boycotts into one resolution. Debates over those resolutions consistently devolve into debates about Israeli government practices and policies. In the process, people often lose sight of the more universal issues at stake in these demands. But people fighting such resolutions need a statement addressing the problems inherent in all such demands. We believe it would be useful to summarise those issues in a clear and accessible form. This two-part piece is the result. It covers the problems with boycott and divestment demands in two separate bullet-point statements:
What is Wrong with Academic Boycotts?
– Academic boycotts limit the freedom students should have to make their own decisions about how to design their educational programme. If a university closes a study abroad programme, students lose an educational option. The freedom to choose where to study abroad should not be eliminated on behalf of those who disapprove of the foreign country at issue.
– Academic freedom includes the right faculty members have to define their own research agendas and pursue research collaborations with colleagues in other countries. Academic freedom requires that research ideas and research results alike can be shared across international borders. Group research collaboration often includes institutional cooperation in setting up labs or institutes shared between countries. An academic boycott makes that impossible. It curtails one of academic freedom’s most basic principles.
– Some people like to claim that academic boycotts only affect institutions, not individuals, but even just the first two bullet points above prove that is not true. Universities are not just empty buildings. It is the people who work at a campus that bring the institution to life and benefit or suffer from the consequences of institutional policies.
– Advances in knowledge in all fields benefit from unfettered international cooperation across borders. Some discoveries or inventions that could save lives may never come to pass or be long delayed if opportunities for international collaboration are blocked.
– Experience has shown that organised academic boycotts encourage destructive ad hoc boycott actions by individual faculty members – like refusing to write a recommendation for a student who wants to study at a boycotted university or automatically rejecting an essay from a faculty member in another country.
– Students and faculty members from a boycotted university find, for example, that they are automatically turned down when they apply to speak at a conference or apply for a job in a country where institutions have organised a boycott . Individual students and faculty are thereby unfairly made to pay personally for the policies of their government.
– Academic boycott organisers often demand that universities in the country at stake issue official statements opposing their government’s policies, but universities in democratic societies are expected to be neutral about many political issues. That reinforces the freedom individual students, staff, and faculty must have to express their own views free of institutional coercion. In areas where universities have the freedom to issue political opinions, neutrality may often be the best option.
– College and university faculty members in democratic societies often disagree publicly with their government’s policies and practices. Academic boycotts curtail intellectual exchanges with the very people in a country one can learn most from, indeed the people who might contribute most to international collaboration aimed at changing government policies.
– Relationships with students or faculty abroad do not imply mutual approval of the policies and practices of the respective national governments.
– Academic boycotts can mean discriminating on the basis of religion, race, or national origin. In some countries an academic boycott would therefore violate the law. Covering up that fact by claiming that those factors had nothing to do with why the boycott was initiated does not change the reality.
– Academic freedom includes the right individuals have to approve or disapprove of boycott actions and make their own choices about whether to cooperate with students and faculty elsewhere. Organised group boycotts impose consequences on all and take away that right.
– The opposition to academic boycotts has operated as a universal principle. It applies whether or not one approves of a given government. Overturning it for one country will inevitably produce a series of comparable initiatives for other nations, especially undemocratic states that do not grant basic freedoms to any of their citizens. Such debates may be won or lost according to how much power the pro-boycott constituency wields. The principle itself will not survive multiple assaults.
What is Wrong with Divestment Resolutions?
– People promote campus divestment demands and resolutions under the illusion that these are potent weapons to be used against a country whose policies they reject. In reality, if a university sells its stock in a company, someone else will buy it. There are always less socially or politically motivated investors prepared to act. The net effect economically is nil. And divestment has no inherent impact on environmental or societal damages.
– It would take a major coordinated campaign to depress the stock price for a given corporation. A campus campaign will not have that effect.
– It might be appealing to divest from companies headquartered in a target country, but such opportunities are often very few, less so with multinationals. Resorting to firms ‘doing business’ in a country implicates complex financial networks that are impossible to disentangle.
– The global market means that companies increasingly sell products internationally. A product used in an objectionable way in one country may have benign uses in another. Divestment, in effect, condemns both uses. Caterpillar’s tractors can plant fields of corn or demolish buildings. They can be resold and thus directed to either purpose. There is no way to police the downstream uses.
– Many companies have diverse product lines. Your stock is an investment in the company as a whole. There are ways to protest some products only, but divestment is not one of them. Boeing manufactures both airplanes and weapons. A political objection to weapons makes little sense applied to airplanes.
– Weapons systems can have both offensive and defensive uses. While an objection to offensive uses by one country may make sense, a protest against defensives uses by other states may make little sense. Divestment irrationally covers both cases.
– A protest against a company amounts to a protest against the workers employed in manufacturing its products. They may work in your own city, state, province, or country. Supporters of divestment may want to look into the employment impact an aggressive campaign could have.
– Once you divest, you lose your influence over company policies. Stockholder activism can influence those policies. It is an alternative to divestment.
– Institutions seek to maximise the returns on their endowments because the income helps strengthen their independence and their ability to weather other challenges. Giving students and faculty members influence over investment decisions is not the most reliable way to guarantee maximum returns.
– Institutions have a responsibility toward donors to maximise the return on endowed funds to support student scholarships, endowed professorships, and other beneficial programmes.
– Colleges that invest in pooled funds may not have the requisite staff or expertise to design their own investment portfolios. It is generally not practical to pull selected stocks out of a pooled fund.
– Calls for investment disclosure and transparency run into problems with alternative investments like hedge funds that may represent a significant fraction of an institution’s portfolio.
– The passionate divestment campaigns on campus involve a certain amount of magical thinking about their potential impact.
– Divesting from investments in another country sends a psychologically and politically alienating message to those who identify with that country or hold citizenship there. That includes those visiting or studying from abroad.
– Divestment can imply discrimination on the basis of national origin.
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!
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."
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!
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.
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?"
(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.
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.
My first published article at FIU, Symbolic Counter-Speech, explored the idea of using symbols to protest the symbols themselves. Examples included events up to and at the start of the Iraq War, when Canadian baseball and hockey fans booed Star-Spangled Banner to protest the U.S.-led war and U.S. baseball fans booed Oh, Canada because Canada did not support the war. (Surprisingly, the U.S. did not go so far as to rename it "Freedom Bacon").
Reports of Canadian hockey fans booing the anthem in response to President Trump initiating a trade war with Canada shows we have gone nowhere in 22 years.
Update: Fans at a game between Nashville and Ottawa in Nashville booed Oh Canada. Free speech for me and for thee.
I like Paul's modification of my post; I offer one different framing. Madison, et al. knew and feared personalism. As others have noted, visions of Trump (and Musk and other hangers-on) fill The Federalist. Madison believed some combination of changing-and-evolving factions and inter-branch competition would limit the success of personalism. So the (unexpected?) development of political parties enhances the danger of personalism--the reach of the personal can take root and spread across the branches through the mediating force of the parties. The party connects members of Congress to the demagogue and places them in greater thrall to the personal than they otherwise might have were he acting alone.
As for the Democrats being out of ideas: Would it make a difference? I would love to see them bring the Senate to a grind. But I don't know what good "new ideas" they could offer that would make a difference or slow down everything that has been going on.
I agree with Howard that the Levinson and Pildes article is very relevant to the current moment, keeping in mind that they wrote it on the understanding that it has been parties have been more relevant than powers for quite some time, including periods in which our conventional habit was to treat separation of powers as if it was still relevant and operative. But I think he misses one trick--a point that suggests that reality has outstripped the Levinson and Pildes thesis, perhaps rendering it descriptively inaccurate on the other end of the extreme. Howard suggests that current events indicate--or confirm, if one agrees with Levinson and Pildes--that party loyalties prevail over branch loyalties. It seems to me that the problem includes but is broader than that. The larger problem is that, in our two-party system, we actually have not one but zero functioning political parties--one because it is locked in the grip of personalism, and the other because it currently lacks almost any identity at all.
The untrammeled personalism of the "party" in power is indeed a train wreck for separation of powers and federalism, among other things. But it's worth noting that Levinson and Pildes didn't think the inevitable result of separation of parties was chaos and incoherence--not, at least, as long as the parties were not only polarized but "cohesive." The adoption of personalism as a substitute for ideas or principles on the part of the Republicans is indeed a serious problem for this or any party in power. But when the opposition party is also lacking even a substitute form of cohesion, including ideological cohesion or a cohesive program--even a cohesive program of opposition--and certainly lacks anything like a leader, the problem is graver. In those circumstances--our circumstances, in my view--the possibility that party interests might serve as a framework in place of the branch interests that Madison envisioned is bound to be even more imperfect and unreflective of any sort of constitutional design.
UPDATE: Just a brief note about Howard's subsequent post. I doubt that "new ideas" as such would make a difference, at least not unless those ideas reflected some actual change in the electoral zeitgeist and uptick in party energy and enthusiasm. But there still has to be enough of a there there, enough of a core around which cohesion can take place, for a party to effectively function as an opposition. I don't see that as being the case currently, even by Will Rogers standards. ("I am not a member of any organized political party. I am a Democrat.") That assessment may be mistaken but is certainly not without foundation. And it should not be surprising, given the period of realignment characterizing both parties. The Republican Party has effectively papered over its ongoing post-fusionist debates with a personality; the Democrats have neither resolved what they are nor yet found some means of successfully avoiding that issue.
Daryl Levinson & Richard Pildes' Separation of Parties, Not Powers argued that the basic component and theory of separation of powers--competition and cooperation between the branches--ebbs and flows depending on whether one party controls both branches. They published the piece in 2006, covering periods through W.'s first term, when the push-and-pull was over policy and perhaps some political use of legislative oversight.
The current crisis (and yes, it is a crisis) takes their thesis to the extreme. It is not just that a Republican Congress does not push back on a Republican President's policy goals and actions; that follows from shared policy preferences. This is a Republican Congress not pushing back on a Republican President's efforts to neuter Congress and to place all power in the executive. It shows that, even in the extreme, political partisanship defeats separation of powers--party loyalties and prerogatives prevail over branch loyalties and prerogatives.
Saturday Music Post - Just a Closer Walk with Thee
When a song is described as a "gospel and jazz standard," you can be pretty sure that it comes from New Orleans. "Just a Closer Walk with Thee" -- author unknown and origin uncertain -- can be heard today in churches, clubs, and of course, funerals, in both vocal and instrumental renditions. It most likely dates back to the late the 19th century, sung in some version by African Americans on southern plantations, but its known history begins in 1940, when the composer Kenneth Morris heard a porter singing it on a train from Kansas City to Chicago. He published it with his own revisions that year, and the first recording was released by the Selah Jubilee Singers in 1941 (at the bottom of the post), and in the same year by Sister Rosetta Tharp (who may have started the song's transition to jazz). As is not unusual with gospel music, Bluegrass and country musicians have also picked it up, as you can see at The Faculty Lounge.