Saturday, January 09, 2021

Which Republican party will emerge? Early returns not encouraging

In two posts, I discussed suggestions that the GOP was going to come apart into two or three groups. The question is which group will retain the party's power within government. Would the autocrats be cast out or abandoned, leaving a slightly smaller but rational center-right party committed to the system? Would the autocrats be left alone in the husk of a party (a la the pro-slavery Whigs) while the pro-democracy group formed a new entity? Or would the autocrats retain control aided by the pragmatic fence-sitters who want to retain power, leaving the tiny group of sort-of moderates (Murkowski) and those committed to the system (Romney) nowhere to go but to stay and shout at the rain.

Early returns are not encouraging. Trumpist Ronna McDaniel was reelected, unopposed, as RNC Chair. A super-majority of House Republicans voted to sustain challenges in Arizona and Pennsylvania and would have sustained challenges in Georgia, Michigan, and Nevada had any Senators gone along. Mitch McConnell will not bring the Senate back before January 19 and an evenly divided Senate may decide there is no jurisdiction over an ex-President. Lindsay Graham says it is time to "heal and start over" and not hold anyone accountable for a mob storming the Capitol (he was talking about impeaching Trump but I assume he would say the same about efforts to censure or expel Hawley, Cruz, et al).

Even after Republican playacting at overthrowing the government turned real, violent, and deadly, most members of the Republican congressional caucus and others "think fewer voters will get and stay mad at them for the historically irresponsible stunt than there will be voters who are way into it, don’t care, don’t understand, or don’t even know."

Update: Steve Scalise says the same thing about impeachment interfering with whatever will unite and bring our country together, while Jim Jordan speaks of "united and healing." Even Derrick Evans, the West Virginia legislator who was arrested for being part of the mob, wants  to help the healing process and bring the nation together. So everyone seems to have received the talking points memo. And the talking point is that unity, healing, and bringing the country together are more important than accountability and repercussion for past misdeeds--at least when Republicans engage in those misdeeds.

Posted by Howard Wasserman on January 9, 2021 at 11:40 AM in Howard Wasserman, Law and Politics | Permalink | Comments (1)

Sanctions, disbarment, and sedition

There was discussion prior to Wednesday about sanctions or bar consequences for the attorneys who brought the nonsense election challenges. Even if Trump and his lackeys did not commit incitement on Wednesday, there was a steady stream of statements about election fraud, stolen elections, and official malfeasance, including in court documents and in press conferences and quasi-hearings related to those lawsuits. Given potential  evidence they were part of a coordinated effort that caused, even if unintended, Wednesday's events, might that affect how courts judge sanction requests, how willing courts are to raise sanctions sua sponte, and how state bars judge disciplinary actions?

Posted by Howard Wasserman on January 9, 2021 at 11:11 AM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (2)

On "cancel culture"

A great post on cancel culture from Sasha Volokh at the VC. He touches on the Hawley book contract, social media control (presciently written before Twitter banned the President and the accounts of everyone the President was using to try to get around the ban), private universities, and school-curriculum choices. I join his closing point:

"Cancel culture" is a broad term that embraces lots of different acts and lots of different consequences—boycotts, firing, piling on to someone on social media, refusal to be friends, rescinding a college acceptance or speech invitation, pulling down a statute, taking a book off the curriculum, etc. In some cases, some of those acts might violate someone's rights. This is especially true when someone has made a contractual commitment to do the opposite, or when a government is doing the acting. Governments have certain duties to be evenhanded, but people lack those duties. Instead, people have freedom, both freedom to choose how to use their property and other resources, and more generally a right to choose who they'll associate with. Those are core freedoms. We should feel free to argue about how people ought to exercise their freedoms, but always recognize that the freedoms are theirs to exercise.

Contrast this with the statement of the National Coalition Against Censorship's statement on the Hawley book, which concludes that the "best defense for democracy is a strong commitment to free expression." This rests on one of two competing premises--either that the only one engaging in "expression" here is Hawley's or that the expressive rights of the publisher must be in the direction of producing more speech.

NCAC also errs in relying on this idea: "Many of the books–and many of the authors–are highly controversial and generate intense opposition. When that happens, it is crucial that publishers stand by their decision to publish, even when they strongly disagree with something the author has said." Perhaps that is the correct principle in the standard-issue "author of YA fiction says controversial thing about topic du jour" case or in the "non-group members cannot write well about groups" case. This is not that. Simon & Schuster reacted to Hawley's actions as a United States Senator that contributed (in their view) to a mob storming the Capitol and attempting to interfere with the work of the government. That is a distance from JK Rowling taking an unpopular position on gender issues.

And a third example comes from various Republicans and conservatives on Twitter, defining "private company exercises control over the country's leader" as something that happens in China and complaining that the culling of right-wing extremists from the site has reduced their followers.

Posted by Howard Wasserman on January 9, 2021 at 10:48 AM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (3)

Friday, January 08, 2021

How Impeachment Might Play Out

Let's say the House of Representatives impeaches the President next week. There will be no Senate trial before January 20th. Will there be a trial after January 20th? I don't know, but I doubt it. It might depend, in part, on whether the President tries to pardon himself. 

The Senate could end up deciding that the High Court of Impeachment simply lacks jurisdiction over an ex-President. While there are precedents for trying ex-officials who were impeached, those examples can be distinguished from an ex-President. The advantage of this "no jurisdiction" approach is that there would no decision on the merits. The President would not be acquitted. He will stand impeached without a judgment for all time. Maybe there is merit to that unique status.

Posted by Gerard Magliocca on January 8, 2021 at 08:15 PM | Permalink | Comments (3)

Lawyering and Responsibility

Somehow I have managed to retain my back door into Prawfs, and with Howard's permission, I am sharing what follows.  It is my note today to my Contracts students who just finished their first two credit hours segment and will return for the remaining three credit hours in the spring semester.  I thought it might be of some interest to other law professors.

 Lawyering and Responsibility

I know that you will be consumed over the next hours and days with exams and grades, but I decided I wanted to pass along some thoughts about current events and their relationship to what we do together.  Somebody who hasn’t endured the first two credits of my Contract Law course might not understand the connection between the substance of the class and the political and social events of the last several months. 

My students, past and present, know that contract law is a logical model used to translate real-world narratives of desired outcomes into legal binding commitments.  Before the fact of disputes, lawyers use contracts to model, in fewer bits and bytes of information, an underlying analog reality, and do so in a way that permits parties to act together in the face of risk and uncertainty.  After the fact of disputes, lawyering is weaponized reason, sublimating (to repeat a reprehensible bit of recent incitement) trial by combat into an intellectual and non-violent game of winners and losers.  The rule of law is a cultural norm that says the loser of that game accepts the loss without resort to trial by combat.

Continue reading "Lawyering and Responsibility"

Posted by Jeff Lipshaw on January 8, 2021 at 04:57 PM in Current Affairs, Lipshaw, Teaching Law | Permalink | Comments (2)

July ('74): District of Columbia

Reports are that Nancy Pelosi spoke with Joint Chiefs Chair Mark Milley about "precautions" against Trump starting a war. We are in July 1974 territory when military and DOD officials were informally telling one another to ignore potentially crazy orders from President Nixon, who was drinking heavily, sensing that the end was near, and a threat to lash out. Of course, Nixon was an intelligent person with some baseline respect for the constitutional order (yes, he committed crimes--there are obvious degrees).

We are not so fortunate at the moment.

Posted by Howard Wasserman on January 8, 2021 at 12:49 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (3)

No on Brandenburg (Updated)

Updates at bottom.

Here is the full transcript of Soon-to-be-Ex President Trump's remarks to the pre-sedition rally. After reading it (and at this point hearing Trump's voice as I read his words), I will follow-up on this post by being more assertive: There is no way this is punishable incitement under Brandenburg.

The speech is largely a string of oral tweets from the past few weeks and months and no different than what he has said at rallies, most recently on Monday in Georgia: The press as enemy of the people and not telling the truth; fanciful and farcical nonsense stories about election misconduct; "sir" stories about the people who are nice to him; touting of his accomplishments as President;* crowd size; cancel culture and critical theory; and the usual airing of grievances 11 days to late. He also laid out a series of election-reform proposals. And he told lies about what the Constitution allows or requires.

[*] There is an amazing disconnect. Before Wednesday, Trump still had competition from Andrew Johnson and James Buchanan. That race is over. But Trump and his supporters continue to talk about him as one of the top Presidents.

The words spoken matter--they must explicitly or implicitly encourage lawless action, allowing for rhetorical hyperbole, overstatement, and even offensiveness. Second, and related, Eugene Volokh argues that modern doctrine is unlikely to treat as incitement words that do not on their face call for unlawful conduct (e.g., Antony's funeral oration or the often-misquoted "will no one rid me of this troublesome priest"). Third, context matters. The lawless action must be "imminent" and "likely." So the same words spoken in front of a large crowd determined to "stop the steal" two miles from the Capitol while votes are being counted is different than spoken at a rally in northern Georgia on a Monday night. Finally, whatever we may think we "know" about Trump's intent, it is hard to prove beyond a reasonable doubt.

The general content here is not incitement of anything; it is standard Trumpian fare. It does not matter that the speech is designed to get the crowd upset at the injustices visited upon Trump and upon them.  Nor does it matter that it is likely or foreseeable that some would act unlawfully upon hearing these words and becoming outraged. The point of moving to Brandenburg from the old clear-and-present danger test was that we punish conduct not speech and that we do not routinely punish speakers because of what unconnected third parties do. We also want to leave speakers free to engage in words--one man's vulgarity and all of that.

With that in mind, much of this speech does not call on or encourage anyone to do anything, much less something that is lawless and imminent.

Continue reading "No on Brandenburg (Updated)"

Posted by Howard Wasserman on January 8, 2021 at 11:05 AM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (4)

An Impeachment Trial for an Ex-President

One possibility is that the President will be impeached again. Suppose he is but the trial does not occur until after January 20th. There is precedent (though not that much) for impeaching and convicting ex-officials. This probably makes sense, though, only if the Senate imposes the disqualification penalty for future office. (Otherwise, what's the point?) And there is an open question on whether disqualification  can be imposed on future occupancy of the White House. (I would say yes, but others say no.)

Here's another wrinkle. Presumably the Chief Justice need not preside over the trial of an ex-President. He only must do so for the trial of a President. Thus, Vice-President Harris would preside.

UPDATE: I'm not so sure about the last point now. If the impeachment is for something the President did, maybe that carries over to the question of who should preside over the trial. Moreover, the Vice-President and the Senate may both prefer that the Chief Justice preside. Since he arguably can, maybe he will have to.


Posted by Gerard Magliocca on January 8, 2021 at 09:18 AM | Permalink | Comments (6)

Thursday, January 07, 2021

National Constitutional Law Workshop 2021

The University of Arizona’s Rehnquist Center is pleased to announce the National Constitutional Law Workshop Series—a virtual forum for the discussion of new scholarship by leading scholars in the field. Our goal is to leverage the videoconferencing revolution spurred by the pandemic to promote community and intellectual exchange among constitutional law scholars across the U.S. and beyond. Workshops will take place monthly on Zoom during the academic year. Registration is free. <>

Our spring 2021 schedule will feature the following presenters:

- Aziz Huq (Chicago)                    Jan. 19, 12 p.m. EST

- Cristina Rodríguez (Yale)             Feb. 22, 3 p.m. EST

- Keith Whittington (Princeton)     Mar. 22, 1 p.m. EST

- Maggie Blackhawk (Pennsylvania)  Apr. 20, 12 p.m. EST


Zoom links and papers will be distributed to registered participants approximately one week before each workshop. 

Posted by Gerard Magliocca on January 7, 2021 at 09:23 PM | Permalink | Comments (0)

Some Thoughts on a Self-Pardon

The odds that the President will pardon himself seem pretty good. Rather than address the validity of such a pardon, I want to make some points about what responses that act might generate:

  1. I would think that the House of Representatives could try to find the ex-President in contempt of Congress for what occurred yesterday. This might create a test case for a self-pardon without action by the DOJ or by a United States Attorney. (I'm not sure that this would create a live case, but arguably a "conviction" without a sentence is a sufficient harm.)
  2. Congress could summon the ex-President to testify. He could not "Take the Fifth" and claim the benefit of the self-pardon at the same time. (Though I guess he could say, "I can take the Fifth since I'm not sure that a court will uphold the validity of the self-pardon.")
  3. A self-pardon might give Congress an excuse to impeach, convict, and disqualify the ex-President precisely because pardons cannot apply to impeachments. It would be the only tool.


Posted by Gerard Magliocca on January 7, 2021 at 07:51 PM | Permalink | Comments (4)

Noisy withdrawals (Updated)

Everywhere today. Some questions remain: Are these exits appropriate and appropriately done? And why now--other than consequences resulting from the conduct of others, was Trump's conduct before and after the putsch any different than what he has been doing and saying for 3 years and 50 weeks? And with 13 days left, how is this different than giving two weeks notice.

Facebook (and other social media sites followed).

The attorney in Philadelphia whom the court called out for saying there were "non-zero" Republican observes in the counting areas. I would like to hear from PR experts whether this was done in an appropriate manner. I have seen some lawyers suggesting that the noisiest of withdrawals should not include specific accusations that may breach confidentiality.

Chad Wolf as nominee for Secretary of Homeland Security. This is tangled up in competing stories about the timing of the re-nomination and withdrawal.

Bill Barr, who already withdrew but is not being noisier about it. This one rings hollow, given his fawning statement as he stepped out the door.

Several national-security officials have resigned in the past 24 hours and reports are more may be coming in the next few hours or days.


Transportation Secretary Elaine Chao (aka Mr. Elaine Chao, the Senate-Majority-Leader-for-the-moment), effective Monday. There is some question whether acting cabinet members can participate in the 25th Amendment process, so similar resignations could make that path trickier than it otherwise might be.

Forgot Mick Mulvaney, who resigned  as special envoy to Northern Ireland, saying "I can’t do it. I can’t stay." Mulvaney will (or should) forever be tagged for his November 7 Wall Street Journal article (paywalled) guaranteeing Trump will concede gracefully if he loses.

Posted by Howard Wasserman on January 7, 2021 at 01:18 PM in Howard Wasserman, Law and Politics | Permalink | Comments (3)

Three (maybe four) parties?

John McLaughlin (Johns Hopkins) says it "Feels like we might be heading for a 3 party system, formally or in practice. Hard to understand how Rs like Toomey, Sasse, Romney, etc. share future goals with Cruz, Hawley, Johnson, House Rs who are about to challenge basic democratic norms. These are not mere policy disputes."

But returning to my response to Steve Schmidt's similar suggestion, I think we have to tweak McLaughling's argument to make it four parties: 1) Cruz, Hawley, et al; 2) Romney, Sasse, Toomey; and 3) the vast remainder of the GOP who voted against the challenges but might have acted differently if the possible result would have been different.

However framed, I do not see this rift as permanent. McLaughlin is right that there "are not mere policy disputes." But that is because these groups do not disagree on most policy matters. And those policies are the "future goals" they share. Toomey, Sasse, and Romney were appropriately and explicitly angry with the actions of Cruz and Hawley and the +/- 125 House Republicans in futilely challenging electors for show and political points based on false claims of wrongdoing. But they can and will continue to make common cause because they agree on most policy questions. And that is before we get to the many members who will make common cause around the simple idea of obstructing Biden.

I might view it differently if there appeared  to be a move among party leaders (most of whom are more in group 3 than 2) to sanction Hawley or anyone else for undertaking these efforts, especially after the siege laid bare the problem of pushing false narratives on the public. I have seen no indication that this will affect Hawley's relative position within the Republican Senate caucus (which may be less important to him than visiting Iowa and New Hampshire).

The answer may depend on whether a combination of photos, speeches, and votes from today has electoral consequences for the highest-profile Republicans. Does that photograph end Josh Hawley's political career, as David French hopes? Will political ads juxtaposing member speeches about fictitious made-up votes with images of rioters hurt them with voters, who seem them as simpatico on policy but unworthy of support because of their lack of commitment to democracy? If so, that might cull what Schmidt called the autocratic faction.

But that depends on how this multi-party split plays among Republican voters. I quoted Mike Sacks (prior to Wednesday) that GOP Congressmen "think fewer voters will get and stay mad at them for the historically irresponsible stunt than there will be voters who are way into it, don’t care, don’t understand, or don’t even know." In other words, how many GOP voters are in the autocratic faction, how many in the pro-democracy, and how many in the pragmatic.

I have long feared the answer. Yesterday shows I am right to be afraid.

Posted by Howard Wasserman on January 7, 2021 at 09:31 AM in Howard Wasserman, Law and Politics | Permalink | Comments (3)

Brandenburg Concerto

Does anything that Trump or Rudy said at the pre-putsch rally satisfy Brandenburg? I describe the Brandenburg paradigm as standing in front of a torches-and-pitchforks mob outside a poorly guarded jail and shouting "let's go get this guy." And at least the Sixth Circuit holds that "get him out of here (but don't hurt him)" to a grandstand of rallygoers surrounding a protester is not enough. How close were yesterday's statements to calls to invade the Capitol right now?

Here is Trump: "And after this, we're going to walk down there, and I'll be there with you, we're going to walk down ... to the Capitol and we are going to cheer on our brave senators and congressmen and women . . . And we're probably not going to be cheering so much for some of them. Because you'll never take back our country with weakness. You have to show strength and you have to be strong."

And Rudy: "If we are wrong we will be made fools of, but if we're right a lot of them will go to jail. So let's have trial by combat."

Brandenburg is (and must be) a high hurdle, so I doubt it. Is either specific enough as a call for a physical attack? (Rudy might say "trial by combat" refers to an alternative adjudicative process and was a criticism of how courts have handled their lawsuits--although how many of the people who heard him know that and how many would hear "combat" as a general call to arms to put wrongdoers in jail). How will a court regard temporal imminence if the crowd had to walk some distance from the Ellipse to Capitol Hill after the speakers were done--we'll take the fucking Capitol after we walk two miles.

Update: Eugene Volokh thinks not, because Trump's words were not specific enough about rioting or invading the building. Fiery rhetoric designed to promote peaceful protest must be allowed, even if some might act violently on it. He allows that what is different here is that Trump's job is not only not to call for imminent lawlessness (that is everyone's job), but to stop lawlessness when it occurs, so he ought to steer farther from the line. But that is a political concern over governmental duties, not baked into Brandenburg.

That last point works in both directions. The special obligation on government officials does not affect the Brandenburg analysis. But it also makes morally blameworthy speech that comes nowhere near Brandenburg. Had Trump not spoken at the rally, he has been fomenting what happen with his charges of fraud and stolen landslides--none of that is close to incitement, all of it would be regarded as morally blameworthy.

Posted by Howard Wasserman on January 7, 2021 at 08:48 AM in First Amendment, Howard Wasserman | Permalink | Comments (8)

Wednesday, January 06, 2021

Testing the Koufax Curse

Testing the Koufax Curse: How 18 Jewish Hitters, 18 Jewish Pitchers, and Rod Carew Performed on Yom Kippur has been published in the Baseball Research Journal.

Posted by Howard Wasserman on January 6, 2021 at 09:45 AM in Article Spotlight, Howard Wasserman, Sports | Permalink | Comments (2)

JOTWELL: Mullenix on Russell on frivolous defenses

The new Courts Law essay comes from Linda Mullenix (Texas), reviewing Thomas D. Russell, Frivolous Defenses, which focuses on tort defendants' non-compliance with the rules governing responsive pleadings. I spend time in Civ Pro on this subject, especially the way that defendants refuse to respond to allegations (common response: "Neither admit nor deny and strict proof demanded thereof," which is nonsense) and the refusal of any judge other than Milton ShadurZ"L of the ND Ill. to hold attorneys to account for these practices.

Posted by Howard Wasserman on January 6, 2021 at 09:41 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (1)

More movie stars and diversity jurisdiction

Elizabeth Taylor has company in the Civ Pro canon. The S.D.N.Y. denied a motion to remand in Rapp v. Fowler, an action for sexual assault against Kevin Spacey. (H/T: Volokh Conspiracy). The victims filed the action in New York state court. Spacey removed, alleging he is a Maryland citizen. The plaintiffs moved to remand, arguing that Spacey is domiciled in the U.K., making him stateless and not subject to suit on diversity. The court denied the motion, for now, because the only evidence of Spacey's intent was a declaration from Spacey that he intends to return to Maryland; the contrary evidence was a declaration from the plaintiffs' attorney, who lacks personal knowledge. The court allowed the parties to take jurisdictional discovery and for the plaintiffs to perhaps renew the motion.

Posted by Howard Wasserman on January 6, 2021 at 09:31 AM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (7)

What Does A Head of State Do?

I mentioned in my prior post that most democracies divide the head of state and head of government roles. Why do they do that? What does the head of state do?

The head of state could be a religious figure. Queen Elizabeth II and Emperor Naruhito of Japan are examples. The head of government (a partisan party leader) cannot be the head of a church. In these nations, there is no separation of church and state, but there is separation of church and government.

The head of state could be a secular figure who performs purely ceremonial tasks. The advantage of this is that some events can be led by someone non-partisan. This could be seen as making these occasions more dignified or politically neutral, or denies to a party leader the ability to exploit those events. Some nations elect a president for this role, in some nations Parliament picks the head of state, some in the Commonwealth simply use the Queen (or her designate the Governor-General), and others in Europe have constitutional monarchies. 

The head of state could possess some extraordinary reserve powers that are seen as too dangerous to give to a Prime Minister. The most obvious example is when no party wins a majority in Parliament after an election. Somebody else has to get involved to broker what happens next (unless the political conventions are strong) and the Prime Minister has a conflict-of-interest. Heads of state often take the lead. There could be other situations, say the declaration of a national emergency, that are comparable.

Some heads of state (mainly the French President) are close to the American model. France has a Prime Minister, but the President wields most of the power. My understanding is that De Gaulle, who basically wrote the current French Constitution, did not want to get involved in political details and hence set up a weak division between the President and the PM, but I'm not sure that is correct.

I think that this is all interesting in general, but consider how what will occur today would look different in a head of state model. Suppose a Queen or the ceremonial president presided over the counting of the electoral votes. Nobody then would say that this person should or could do anything about the substance of that count. (It's like when the Chief Justice presides over a presidential trial in the Senate.) Because the presiding officers are partisan elected officials, though, there can be such an expectation (mistaken though it is). There are other purely ceremonial occasions where we might feel better about having a non-partisan person involved.

More on this tomorrow.  

Posted by Gerard Magliocca on January 6, 2021 at 08:40 AM | Permalink | Comments (1)

Tuesday, January 05, 2021

Partisan messaging

Keith Whittington at Lawfare breaks down the legal, constitutional, social, and political problems with what congressional Republicans plan to do tomorrow.

He responds to the argument that this is harmless political posturing, a "messaging" act that causes no harm because it cannot succeed (akin to voting for a bill that will not pass or that is likely to be declared invalid). But:

[E]ven as a political messaging exercise, what exactly is the message? Are these congressional Republicans telling voters that if they elect enough like-minded politicians, then a majority coalition would be willing and able to overturn the result of a presidential election? Is the message that every future presidential election is up for grabs when Congress meets to “count” the votes and that election results are simply contingent on who holds the majority in Congress? This is hardly the message that any responsible politician should be sending in a constitutional democracy. No democratic political system can function in that way.

Whittington is right that this is the message Republicans are sending to voters. And that tracks with questions over the divide within the Republican party and which direction that divide might go. Perhaps the message is that voters must primary the pragmatic faction and elect more autocrats, at the federal and state levels, so this will work in the future. Perhaps the message is to GOP autocrats at the state level to alter their election laws and processes to allow this to work in the future, up to and including returning selection of electors to the legislatures (the past two months show that many Republican voters would not oppose this in their Red or gerrymandered states).  Or perhaps the message is to the pragmatic wing of the GOP in Congress--hang with us, even if opposing us now, because eventually there will be an election that comes down to one state and a few hundred votes (e.g., Florida in 2000) and this will work.

Regardless of the message, Whittington's ultimate point stands: "This is hardly the message that any responsible politician should be sending in a constitutional democracy. No democratic political system can function in that way."

Posted by Howard Wasserman on January 5, 2021 at 06:17 PM in Howard Wasserman, Law and Politics | Permalink | Comments (3)

Monday, January 04, 2021

Kurt Lash on the Bill of Rights

Professor Kurt Lash has posted a new paper entitled "The 1791 Amendments as the 'Bill of Rights,' Founding to Reconstruction (A Response to Revisionists)." I disagree with most of Professor Lash's conclusions (I'm one of the revisionists), but his paper is a gallant effort that anyone interested in the topic should read. In due course, I will write up a formal reply, though I suspect that will not happen until life gets back to normal. Here is the abstract of Professor Lash's paper:

Unlike the “Declaration of Rights” annexed to many state constitutions, the ten amendments added to the federal Constitution in 1791 have no formal title at all. It is only by cultural tradition that Americans refer to these provisions as our national “Bill of Rights.” Until recently, most scholars assumed that this tradition could be traced back to the moment of ratification. Over the last decade or so, however, a number of scholars have challenged this assumption. These “Bill of Rights revisionists” claim that Americans did not commonly refer to the first ten amendments as “the bill of rights” until the twentieth century. Prior to that, most Americans either did not believe they had a national bill of rights or they would have more likely pointed to the Declaration of Independence as the country’s “bill of rights” than to the 1791 amendments. If the revisionists are right, then a substantial portion of constitutional historical scholarship is shot through with historical error, in particular scholarship supporting the incorporation of the Bill of Rights as part of the Fourteenth Amendment.

This essay examines the historical record in order to determine whether the claims of the Bill of Rights revisionists are correct. It presents the results of an exhaustive investigation of political, legal and cultural references to the “bill of rights” from the time of the Founding to Reconstruction (and beyond). These references, most of which are presented here for the first time, suggest that the revisionist claims about the ten amendments are false. Long before the twentieth century, and decades before Reconstruction, Americans commonly referred to the first ten constitutional amendments as “the Bill of Rights.” Moreover, references to the 1791 amendments as the national bill of rights vastly outnumber historical references to the Declaration of Independence as a “bill of rights,” and indicate that nineteenth century Americans were not at all confused about the meaning and content of their national “Bill of Rights.” If any “revision” is in order, it is the need to (1) revisit and revise our understanding of the original theoretical role played by the Bill of Rights at the time of the Founding and (2) recognize the remarkably broad coalition of Americans who, by the time of Reconstruction and the Fourteenth Amendment, embraced an altogether different theory of the 1791 amendments. 

Let the debate begin!

Posted by Gerard Magliocca on January 4, 2021 at 08:05 PM | Permalink | Comments (3)

Court smacks down dumbest election lawsuit and its lawyers

The dumbest election lawsuit was the one in the District of D.C. against Pence, the Electoral College, Congress, and a bunch of state officials, alleging that Article II requires that a state legislature certify the results post-election so any electors appointed without that certification (i.e., all 538) were invalid and could not cast lawful votes. District Judge Boasberg initially gave the plaintiffs busywork of providing proof of service on all defendants, including the Electoral College (which, of course, is not a thing that can be sued). When no such service occurred after twelve days, the court declined to wait any longer and denied the motion for preliminary injunction.

And Boasberg was not messing around. The suit would have been "risible were its target not so grave: the undermining of a democratic electionfor President of the United States." Plaintiffs’ "theory that all of these laws are unconstitutional and that the Court should instead require state legislatures themselves to certify every Presidential election lies somewhere between a willful misreading of the Constitution and fantasy." And this is the closer:

Yet even that may be letting Plaintiffs off the hook too lightly. Their failure to make any effort to serve or formally notify any Defendanteven after reminder by the Court in its Minute Orderrenders it difficult to believe that the suit is meant seriously. Courts are not instruments through which parties engagei n such gamesmanship or symbolic political gestures.As a result, at the conclusion of this litigation, the Court will determine whether to issue an order to show cause why this matter should not be referred to its Committee on Grievances for potential discipline of Plaintiffs’ counsel.

Many have noted the absence of sanctions in these cases, despite all being patently sanctionable. One reason may be the details of FRCP 11 and the incentives of parties and courts. Rule 11(c) imposes a safe harbor--before seeking sanctions, a party must notify the opposing party of its intent to seek sanctions (by serving, without filing, a copy of the proposed motion for sanctions) and give the party 21 days to cure the sanctionable conduct, as by withdrawing or amending the challenged paper. But the defendants in these cases want these cases to go away, not to drag the cases out by giving the plaintiffs time to cure. And most courts have held that the safe harbor means that sanctions cannot be sought after dismissal, so post-dismissal sanctions are not possible. Meanwhile, judges have the same interest as defendants in making these cases go away and no desire to keep them around with additional rounds of satellite litigation.

This was was unique in several respects, so it makes sense that it might trigger sanctions activity. Because plaintiffs never bothered serving anyone, the case never reached an adversarial posture; the judge was on his own own. And the theory and construction of the case was uniquely loony. That combination raised the suspicion, more than the other Kraken cases, that this was a political show and nothing more.

One more thing, because it is something I expect to see in the coming months. The plaintiffs alleged that they had been "disenfranchised," which Boasberg said was not true since they had voted and their votes counted. But "disenfranchisement" means something different in the minds of these groups of voters and advocates. The "franchise" means not that I was able to vote or that my vote was counted, but that I was able to elect the candidate of my choosing; I am disenfranchised if my candidate loses. This framing is not new. Many of the early Tea Party rallies in 2009 and 2010 were covered as complaints of disenfranchisement--the protesters were disenfranchised because the person they did not vote for had one and he was pursuing policies they did not favor. That is certainly grounds for protest; it is not disenfranchisement and should not be accepted as such.

Posted by Howard Wasserman on January 4, 2021 at 03:20 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (10)

Head of State vs. Head of Government

I'm going to start a series of posts about another work-in-progress. This one is about the constitutional distinction that most democracies make between the head of state and the head of government. The United States is one of the few that does not make that distinction. Why do other nations do so? What do heads of state there do? Is there an advantage in dividing executive authority in this way? 

It's easy to explain why the United States does not divide these executive roles. In 1787, the concept was unknown. King George III did have Prime Ministers (Lord North, for most of the Revolutionary War) but the King retained substantial powers and people did not see Prime Ministers in the modern sense as the head of a parliamentary party. Like most aspects of the British Constitution, the distinction between the Crown and the Government grew slowly and organically. The Framers could not have foreseen this.

Nevertheless, there are some aspects of early American constitutional practice that mimic the separation between the head of state and head of government. One was that Presidents did not openly or directly campaign for office. This was seen as grubby or degrading for the head of state. (Until 1932, we must remember, presidential candidates did not generally go to the party nominating conventions and did not give an acceptance speech either.) Another is that George Washington acted more like a head of state as President and left much of the policy work to Hamilton, who is sometimes described as Washington's Prime Minister. Third, consider all of the circumstances (even now) where we say that the President should not do this-or-that within the executive branch. One could argue that some of that reflects the view that the President, as the head of state, ought not to be involved in certain political matters that are "beneath" him.

The only Supreme Court opinion that says something useful about the President's role as head of state is . . . you guessed it . . . Justice Jackson's concurrence in Youngstown. There he pointed out that the President's "prestige as head of state" adds to his soft or informal power. Heads of Government, even powerful Prime Ministers, lack that prestige and are, in that sense, weaker. 

Tomorrow, I think, I'll talk more about different kinds of heads of state around the world and how they act as a balm against partisanship.

Posted by Gerard Magliocca on January 4, 2021 at 01:35 PM | Permalink | Comments (3)

Northwestern University Law Review Exclusive Submission Track (Reposted and Moved to Top)


From the Northwestern University Law Review:

Exclusive Submissions

The Northwestern University Law Review Exclusive Submission Track will open on January 1, 2021 and close January 15, 2021 at 11:59 PM CT. For all Article that have been submitted by January 15, 2021 in accordance with the instructions outlined below, the Law Review guarantees consideration by an Articles Board editor and a final publication decision on or before January 30, 2021.


Continue reading "Northwestern University Law Review Exclusive Submission Track (Reposted and Moved to Top)"

Posted by Sarah Lawsky on January 4, 2021 at 10:51 AM in Law Review Review | Permalink | Comments (0)

Sunday, January 03, 2021

Political parties and notes on a broken process

A jumble of thoughts on the role of political parties in presidential selection and what happens next.

The Framers considered but rejected legislative selection of the executive, fearing that a president chosen by Congress would not be sufficiently independent of the body to which he owed his office. That is why the states were empowered to decide the methods of choosing electors and why the electors would act on their own. The House contingent election was a necessary fail-safe. At the same time, some believed that fail-safe would become the norm, at least once George Washington left the scene. They doubted one figure could attain sufficient national recognition and support to achieve an EC majority, especially in a race among multiple candidates representing different regions and interests. These figures expected the EC to become a screening mechanism to produce two or three candidates, from whom the House would select the President.

The unforeseen (or unaddressed) development of political parties and settlement into a two-party system allowed the Electoral College (as tweaked by the Twelfth Amendment) to function as a true selection mechanism, making the contingent election an unnecessary vestige. The one post-Washington election that operated as the EC was designed on paper was 1824--and it produced the contingent election that some Framers expected or feared. There were no competing political parties and multiple candidates represented different regions and interests within that party, none of whom had the national stature to gain a majority. Otherwise, the competition between two major national parties ensured sufficient support nationwide support for one candidate, absent a breakdown in state processes (as happened in 1876 but has not happened since, including this year, conspiratorial fantasies aside). The congressional role became ministerial and ceremonial--count the votes and confirm the winner of state-controlled processes.

Continue reading "Political parties and notes on a broken process"

Posted by Howard Wasserman on January 3, 2021 at 10:35 AM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (14)

Saturday, January 02, 2021

Where are they now: Tolan v. Cotton

The Washington Post on Friday ran a story on Robbie Tolan, a baseball player who was the victim of a 2008 police shooting in Texas that ended his potential career. His lawsuit was the subject of Tolan v. Cotton (2014), the rare case in which the Court reversed the grant of summary judgment on qualified immunity, when the lower court defined the context of the right despite factual disputes. I wrote about the case. Following remand, Tolan settled for $ 110,000; the newspaper story describes how he has gotten on with his life twelve years later. (H/T: Jonah Gelbach).

Posted by Howard Wasserman on January 2, 2021 at 07:10 PM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Mike Pompeo? (Updated)

Criticizing Lin Wood's legal acumen is fish-in-a-barrel stuff these days. Still I was struck by this: In his prediction/call/hope that Vice President Pence would be arrested and executed for treason, Wood said that Secretary of State Mike Pompeo would take charge of the Senate on January 6 and would save the election.

Obviously this is nonsense, and I do not know whether Wood believes it. But I am curious how he got there--even if you know nothing about law or the Constitution, what is the logical progression that gets the Secretary of State--an executive-branch officer whose existence is not provided for in the Constitution--presiding over a joint session of Congress and performing a function that is constitutionally delegated to the VP? The only thing I could think of is that Wood went through the line of presidential succession to find the next executive-branch officer and decided that person must perform the VP's functions if the VP is sitting in prison awaiting execution. This is wrong for several reasons, but I think that is it.

By the way, I am with the many people believing that this insanity does not end on January 6. Someone will seek to enjoin Chief Justice Roberts from issuing the oath to Biden or will seek to mandamus Roberts to issue the oath to Trump. Someone will challenge a Biden-signed law or Biden-issued executive order and argue that Biden is not really the President. Someone pointed out that the birther lawsuits continued into December 2012. And I would not be surprised if some Republican House members made noise about impeachment, which would be the appropriate vehicle (as opposed to these nonsense lawsuits) for removing a President who won the office by deceit or wrongdoing.

I also continue to believe that none of these will hurt the Republican Party or any individual Republican officials, in the short or long term.

Updated: Apparently, there is a different version of Pompeo, the Hero, in which Pompeo becomes acting president. According to the December 16 LawFare podcast, Senate Republicans will delay count-and-challenge until January 20 (Cruz's demand for a 10-day study, followed by referral to state legislatures, would achieve), then obtain a ruling from OLC that § 19 is constitutionally invalid to the extent it allows a non-executive officer to become acting president. The OLC ruling would require the executive branch to accept Pompeo as acting president, while the rest of the government would presumably recognize Nancy Pelosi as acting president.

Posted by Howard Wasserman on January 2, 2021 at 10:12 AM in Howard Wasserman, Law and Politics | Permalink | Comments (6)

Opinion Announcement Practice in the Supreme Court

The traditional practice in the Supreme Court was that the entire opinion in a case was read in open court by the Justice who wrote the decision. Typically, separate opinions were also read aloud. Thus, the Justices spent a lot of time just sitting on the bench to either deliver opinions or hear them being delivered. At some point, this practice changed into the modern (pre-pandemic) version, in which the author just summarizes the decision or reads a portion and a dissent is only occasionally read from the bench.

I'm not clear when the practice changed. An example of the old style is described in The New York Times story on the announcement of the decision in Youngstown. The article states that the Justices read their opinions in the Steel Seizure Case for two-and a-half-hours. Justice Frankfurter (not surprisingly) took 30 minutes to deliver his concurrence. Granted, Youngstown was unusual in that there were many long separate opinions and the Chief Justice was in dissent. I'm also not sure if the Court made an exception by reading all the opinions or whether that was still the norm in all argued cases in 1952. Maybe the change came under Earl Warren.

Posted by Gerard Magliocca on January 2, 2021 at 08:44 AM | Permalink | Comments (1)

Thursday, December 31, 2020

Maybe this year will be better than the last

Wishing our bloggers, commenters, and readers a safe New Year's Eve and a healthy and (hopefully) happier 2021.

Let us hope this apparent Russian joke does not come true: On average, we live pretty well: worse than last year, but definitely better than next year. (H/T: Julia Ioffe and David Frum).

My former teacher Steve Lubet at Faculty Lounge does a weekly post featuring different versions of a particular song. In honor of my hope for 2021, here is my version of a post.



Continue reading "Maybe this year will be better than the last"

Posted by Howard Wasserman on December 31, 2020 at 06:21 PM in Howard Wasserman | Permalink | Comments (0)

Sunday, December 27, 2020

Robert Jackson on Article Five

After reading Robert Jackson's brief in Currin v. Wallace, I decided to read through some of his other briefs as Solicitor General. He was only in that position for two years, and the United States did not, of course, file a brief in every case. As far as I can tell, the only other case where a Jackson brief would be of interest to modern lawyers is Coleman v. Miller, which concerns the Article Five ratification process.

I've written an article about the proposed Equal Rights Amendment to the Constitution. One issue with the ERA is the relationship (if any) between a time limit for ratification and the possibility that a state can rescind a ratification of a constitutional amendment. In my article, I argued that states should have that power (or that only a two-thirds vote of each House of Congress can set aside a rescission). This is especially true, I thought, if Congress can extend or waive a ratification time limit that is not in the text of the proposed amendment itself.

Here's what Jackson's amicus brief says about this in Coleman after he cites Dillon v. Gloss:

That case sustained the power of Congress to fix a time limit of seven years for the adoption of the Eighteenth Amendment. It was unnecessary in that case to consider whether a proposed amendment would expire with the passage of time in the absence of such a provision, and still less to consider whether the courts could be required to decide that a proposed amendment had in fact expired. It is true that the opinion in the ease expressed the view that an amendment cannot pend indefinitely, but nothing was said concerning the authority which would be empowered to declare that the end had come. The answer to the latter question may well turn on the answer to another: whether States which have once ratified may thereafter revoke or rescind their ratification. If they can, the danger that a few States may supplement prior ratifications of an outdated proposed amendment is largely obviated; the States that have ratified can protect themselves by rescinding. The power of the States so to do has not been judicially determined. Unless and until the power is held not to exist, much of the force is taken from the position that the courts may be required to decide whether a proposed amendment has lapsed. It is perhaps enough to say that distinguished authority can be found for the view that, until an amendment has been adopted by the ratifications of three-fourths of the States, the States do have power to rescind their ratifications. [footnote omitted]

This passage is interesting for two reasons. First, Jackson took the view that states could rescind their Article Five ratifications, which is a hotly contested question. (If states can do so, then the ERA has not reached the three-quarters necessary for ratification). Second, he says that if states can rescind, then an indefinite time limit for ratification is not a problem. States can rescind their ratifications from long ago if they feel that was the wrong position to take.

I also just love the following passage in the brief for its prose style:

The second major question presented is whether the Child Labor Amendment was no longer susceptible of ratification because of the interval of time, 12 years and 7 months in the case of Kentucky and 12 years and 8 months in the case of Kansas, elapsing between submission to the States and these ratifications. The argument is, in effect, that a conclusive presumption of death arises upon the passage of such a period, a presumption akin to that arising from seven years' unexplained absence without being heard from. But the Child Labor Amendment has been heard from incessantly. If mortality is an attribute of proposed amendments, it is clear with respect to the Child Labor Amendment that death could not have been caused by atrophy, but only by activity; and that, it is submitted, is not a basis for establishing the legal death of an amendment.

Posted by Gerard Magliocca on December 27, 2020 at 10:21 AM | Permalink | Comments (5)

Thursday, December 24, 2020

Arguments Against the Non-Delegation Doctrine

This is my final post in the series about Robert Jackson's brief in Currin v. Wallace. Jackson argued there that (1) some congressional delegations to the President might be unconstitutional;(2) Congress could not alienate its power; and (3) congressional delegations to executive agencies or independent boards are always constitutional.

Why did Jackson think that delegations to agencies were fine? He made several arguments. One was that the text did not expressly limit delegations except in the Tenth Amendment. (Jackson did suggest, though, that appropriations could not be delegated due to the requirement that no money could be drawn from the Treasury without an appropriation by law.) He also invoked a structural argument:

The executive power which, it has always been assumed, can be delegated, and would be utterly impotent if it could not be delegated, is vested in the President by the same words that are used to vest the legislative power in the Congress. There is no reason to imply a limitation in the language of one section that is not to be implied in the language of the other.

Finally, Jackson asserted that the Framers were well-aware of broad delegations of power by Parliament but chose not to limit delegations of power by Congress:

This silence of the Constitution on the subject of delegation has added significance when we consider that the constitutional convention was familiar with the extravagant delegation of governmental power which was in vogue in that day. Not only were the powers of government parceled out to public bodies, but all of the powers of government were actually alienated to trading corporations. There is no better example than the Hudson's Bay Company.

The Hudson's Bay Company was chartered by Charles II in 1670. Prince Rupert and 17 other noblemen and gentlemen were incorporated and granted “the whole and entire trade and traffic” to and from the Hudson's Bay country. The complete lordship and entire legislative, judicial, and executive power was given to the Company. This governmental power was held and exercised until November 19, 1869, when all its rights of government were returned to the public authorities by a deed of surrender in which the consideration was not merely nominal.

* * * and that the said Governor and Company shall have liberty, full power and authority to appoint and establish Governors and all other officers to govern them, and that the Governor and his Council of the several and respective places where the said Company shall have plantations, forts, factories, colonies or places of trade within any of the countries, lands, or territories hereby granted, may have power to judge all persons belonging to the said Governor and Company, or that shall live under them, in all causes, whether civil or criminal, according to the laws of the kingdom, and to execute justice accordingly.”

 Virginia itself was settled under charters granted to “the London Company” and to the     “Plymouth Company” in 1606. The London Company in 1607 sent its first colonists to the James River.

Jackson also cited many colonial and state laws enacted in the 18th century that broadly delegated, before wrapping up by citing M'Culloch v. Maryland.

Anyway, I hope to write all of this up and get a draft paper out by the summer. 

Posted by Gerard Magliocca on December 24, 2020 at 02:52 PM | Permalink | Comments (3)

Third-party universality

A judge in the Northern District of California has universally enjoined the President's Executive Order on diversity training. Plaintiffs are several non-profit LGBT education and advocacy organizations that do trainings and education programs for local businesses, governments, and health-care providers. These programs cover systemic bias, anti-racism, white supremacy, and other issues the EO attempts to stop. The court held that the EO violates the First Amendment.

The court made the injunction universal/nationwide, based on third-party effects. "Permitting Plaintiffs to provide training regarding “divisive concepts,or to promote those concepts,would do Plaintiffs little good if their sources of employment and funding remain subject to the Executive Order." Pointing to evidence of third-party cancellation of programs in which the plaintiffs were scheduled to participate, "[i]njunctive relief is necessary to allow third parties to hire and/or fund Plaintiffs without fear of violating the Executive Order."

Third-party effects can expand the scope of a particularized injunction, in the sense of protecting those with whom the protected plaintiff engages in its protected capacity. For example, the injunction stopping enforcement of the Muslim travel ban as to the University of Hawaii protected actual and potential students; the injunction stopping enforcement as to HIAS protected actual and potential HIAS clients. Similarly, the court is correct that protecting these plaintiffs requires protecting those who do business with them.

But it did not follow that the injunction stopping the travel ban should protect other state universities, other immigration organizations, or other potential immigrants who have nothing to do with those plaintiffs. Similarly, it does not follow that this injunction must protect other training providers who have nothing to do with these plaintiffs or other entities who do not and would never do business with the plaintiffs. Giving relief to other grantees/contractors, who have nothing to do with the plaintiffs, is not necessary to give the plaintiffs complete relief.

Posted by Howard Wasserman on December 24, 2020 at 01:04 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (1)

Tuesday, December 22, 2020

Remembering James Watt

Can we agree that the President's closest advisers at the moment--"a felon, adherents of the QAnon conspiracy theory, a White House trade adviser and a Russian agent’s former lover" is the greatest collection since James Watt in 1983?

Posted by Howard Wasserman on December 22, 2020 at 11:09 AM in Howard Wasserman, Law and Politics | Permalink | Comments (3)

Divesting Power

Robert Jackson's brief in Currin v. Wallace argued that there was no limit on Congress's power to delegate power to executive agencies. But he also said that Congress could not alienate its power:

It would appear elementary that no department can divest itself of the power thus vested in it. In other words, there can be no alienation of power. Delegation, however, stops far short of divesting or alienation. To turn over to a body created by and responsible to the Congress a defined and limited measure of power, or a power over a given subject or object, at all times subject to recall and supervision by Congress, is in no sense a divesting or alienation of its power.

Later on Jackson added that the "only limitation which seems reasonable to imply is that any delegation must stop short of a divestiture of power or an alienation of power. Such would be contrary to the provisions and plan of the instrument."

Here's the head-scratcher: How exactly can Congress formally divest itself of power? Refusing to exercise a power for long enough could be understood as de facto alienation, but that's rather hard to assess. Likewise, a congressional delegation with no supervision might be alienation even if Congress retains the right to supervise, much as trademark law says that "naked licenses" are invalid. But how could that concept lead to a judicially manageable standard? "Naked licensing" is hardly ever enforced for trademarks nowadays.

A formal alienation of power, I think, could happen only if Congress gives power over an irrevocable decision. Suppose Congress gave the Secretary of the Interior the power to admit new states. She then decides to admit Puerto Rico, Guam, and the Virgin Islands. Statehood admissions cannot be repealed. Even though Congress could revoke the grant of statehood recognition for future states, they could not do anything about a prior decision to admit a state. Even then, though, you could say that the power is not alienated because Congress exercises supervision over the Secretary of the Interior.

In short, the alienation limitation is probably just theoretical or would end up involving a separate constitutional claim. Tomorrow I'll talk about why Jackson thought there was no limit on Congress's ability to delegate power to executive agencies. Working title for this paper, BTW, is "Robert Jackson's Non-Delegation Doctrine."


Posted by Gerard Magliocca on December 22, 2020 at 11:01 AM | Permalink | Comments (3)

Monday, December 21, 2020

Decoding Youngstown

In my prior post, I explained that Robert Jackson's brief in Currin v. Wallace argued that there were constitutional limits on Congress's power to delegate power to the President but not to agencies. This point is highly relevant, I think, to something he said in his Youngstown opinion.

Describing the first of his three categories for evaluating executive power, Justice Jackson said: "When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate." [footnote omitted for now]

What does "can delegate" mean in that sentence? I've always thought that meant that Congress cannot authorize the President to do something that the Constitution independently forbids (say, violate the First Amendment.) But Jackson says a few sentences later that if the President's action "is held unconstitutional under these circumstances, it usually means that the Federal Government as an undivided whole lacks power." Why does he say usually? Why not always?

The answer, I think, is that Justice Jackson believed that Congress could not delegate some of its valid powers to the President. The brief in Currin supports that thought, but also consider the footnote that accompanies his sentence in Youngstown on the power that Congress "can delegate." Footnote 2 in his Youngstown opinion discusses Curtiss-Wright, which was a nondelegation case. Jackson said Curtiss-Wright "recognized internal and external affairs as being in separate categories, and held that the strict limitation upon congressional delegations of power to the President over internal affairs does not apply with respect to delegations of power in external affairs." What "strict limitation upon congressional delegations of power to the President over internal affairs?" Presumably the ones identified in Panama Refining, Schechter Poultry, and Jackson's brief in Currin.

Thus, Jackson's analysis in Youngstown (which everybody seems to admire) is partly about non-delegation, And his opinion and directs our attention to an unresolved problem--what are the limits of congressional delegation to the President that adds to his powers? The Supreme Court's cases instead focus on when Congress may subtract from his powers (for instance, Morrison v. Olson). But is that what we should be focused on?

More on Currin tomorrow. Grading is the nemesis of blogging, but hopefully I can do both.



Posted by Gerard Magliocca on December 21, 2020 at 10:50 AM | Permalink | Comments (1)

Sunday, December 20, 2020

The Non-Delegation Doctrine Reconsidered

Let me start my posts on Robert Jackson's brief in Currin v. Wallace. I'm not sure how to post a PDF of the brief, but I'll see what I can do. In the meantime, let me set up the background and then address one of the Solicitor General's main points.

Jackson wrote the brief to defend the constitutionality of the Tobacco Inspection Act, which was a standard New Deal law that regulated the tobacco market. One of the arguments against the Act was that Congress unconstitutionally delegated authority to the Secretary of Agriculture. The United States rejected that assertion and the Supreme Court agreed that the Act did not unreasonably delegate. But the United States also urged the Court (unsuccessfully) to revisit the entire non-delegation doctrine. The opening prose of that section is in Jackson's unique style, including the unusual word choice of "uncanalized"

The contentions in this case illustrate the rather fantastic limitations upon the Congress which counsel read into the decisions of this Court on the subject of delegation of power. The confusion and uncertainty surrounding this subject not only lead earnest members of the profession into repeated attacks upon legislation as unlawfully delegating power, but also present to legislators a dilemma in framing legislation.

They are confronted on the one hand with the nebulous requirements of due process. If they pronounce a rigid set of standards, unforeseen cases to which the standards may apply present the danger of unconstitutionality because of caprice or arbitrary application. If, on the other hand, they seek to avoid the danger of capricious and arbitrary application through provision for flexibility in application, the statute is then attacked for undue delegation, an equally nebulous and undefined concept. This dilemma of avoiding the infirmity of unlawful delegation by running into the infirmity of caprice, or vice versa, faces legislators in most of their important tasks.

There is urgent need for some clarification of the doctrine of non-delegability. If it is to be applied to legislation, it is only just to legislators that standards be clearly outlined by which the adequacy of legislative standards is to be tested. The invocation of a vagrant and uncanalized judicial doctrine to prevent vagrant and uncanalized legislation leaves both legislators and litigants confused.

After gesturing in the direction of saying that what constitutes unreasonable delegation is "a subject of questionable justiciability," Jackson then offered a rationale for the Court's non-delegation decisions:

[T]he only cases in which legislation was held unconstitutional for excessive delegation were the Schechter and Ryan cases, both of which dealt with a delegation to the President himself. These cases, therefore, involve the question of separation of powers, for the office of President was not created by the Congress and the President was not responsible to the Congress. The executive was there endowed with nonexecutive functions. The legislative power was there delegated to the President, whose powers are in many respects independent of the Congress. It is generally held that the Judiciary will not assume nonjudicial functions, and that Congress cannot assume nonlegislative functions. It was, therefore, with a measure of consistency that the Executive was excluded from legislative functions beyond those considered necessary in filling in the details of legislation and in determining its applicability. 

It is apparent, however, from that circumstance in those cases, that there is no precedent in American constitutional law for striking down legislation which delegates legislative power to an agency created by Congress and controlled by Congress, and where the agency exercising the delegated powers is completely subject to the control of Congress and may at any time be abolished. Whether delegated to so-called independent establishments or boards, or whether delegated to members of the Executive Department whose offices owe their existence and powers to the Congress, these delegations have always been sustained.

Let's ponder this analysis for a moment. First, I think the argument rests on an understanding of executive agencies that not everyone shares. Today many people would say that the President, not Congress, controls the executive agencies. Thus, the distinction between a direct delegation to the President and one to the Secretary of Agriculture is not significant. But maybe that is wrong. Congress does have more influence over Cabinet Departments than over the President himself. Second, Jackson's analysis makes more sense in the presence of the legislative veto; a practice invalidated by the Court in Chadha but used often in the 1930s.

Still, Jackson's rule has some advantages. First, Congress would be on notice that delegations to the President could be invalidated but delegations to executive agencies or independent bodies cannot be invalidated. This would not, of course, satisfy some critics of how the Congress delegates its authority to agencies, but as a prospective guide for Congress Jackson's standard would be useful. Second, there are many delegations of authority to the President himself that would be on shaky ground under this test. To take one example, the National Emergencies Act is a delegation of exceptionally broad power to the President himself, not to an agency. I think a substantial attack could be mounted against this statute if Jackson's non-delegation doctrine were the law. There are probably many other examples, though I'm not an administrative law expert.

Next time I'll talk about another thoughtful aspect of Jackson's brief on the difference between the delegation and the alienation of power that may connect up with his concurrence in Youngstown.   



Posted by Gerard Magliocca on December 20, 2020 at 08:26 PM | Permalink | Comments (2)

Saturday, December 19, 2020

Robert Jackson on the Non-Delegation Doctrine

I've come upon an interesting artifact that may merit its own paper. In Robert Jackson's book on The Struggle for Judicial Supremacy, he criticized the Supreme Court's non-delegation cases (Panama Refining and Schechter Poultry). He then said that "the Solicitor General" invited the Court to clarify the non-delegation doctrine, citing a brief submitted in Currin v. Wallace. This Solicitor General was, of course, Robert Jackson. The Court did not take up Jackson's invitation, but the brief contains an extremely interesting analysis of the issues. As far as I can tell, though, nobody has given this brief much attention. Let me give you a few highlights:

  1. Jackson argues that congressional delegations to the President may be invalid on separation-of-powers grounds. Congressional delegations to executive agencies or independent boards, though, are permissible because Congress exercises some direct control over them.
  2. He says that Congress can delegate but may not alienate its power.
  3. He cites many examples of broad delegations at the Founding, with a special emphasis on proprietary colonial charters.
  4. He makes several telling textual points against the non-delegation doctrine.

I will take all of this up in greater detail in a separate post.

Posted by Gerard Magliocca on December 19, 2020 at 07:16 PM | Permalink | Comments (3)

Plenty of perjury and authoritarianism

Two unrelated items, united by the news of the day.

Based on the quality of lawyering we have seen the past 46 days, does anyone believe Nick Sandmann recovered anything more than nuisance value in settling his $ 250 million lawsuit against CNN?

In spring 2016, I had a conversation with two conservative academics about the ongoing Republican primary. One said GOP folks were worried about Trump winning. I responded, "why, because he's a crazy Fascist?", to which he responded with a smirk that they were worried about down-ballot drag. I said "which really means they know he's a crazy Fascist." The other asked, indignantly, why I thought Trump was a fascist and why I believed wanting to keep our country safe made him a fascist. I hope we agree that talking with people in the Oval Office about calling in the military to seize voting machines and order a redo of an election makes someone a fascist.* As someone wrote earlier today, Trump is a dictator; that the adjective "failed" goes in front of that does not change the fact that he is a dictator.

    [*] Or let's say a dictator or an authoritarian or a person not committed to democracy. I admittedly used fascism as a synonym for those. I think the point stands.

Posted by Howard Wasserman on December 19, 2020 at 06:21 PM in Howard Wasserman, Law and Politics | Permalink | Comments (10)

Friday, December 18, 2020

In Jotwell: "The Two-Body Problem"

At Jotwell, I have a jot this week on Daphne Renan's recent article, The President's Two Bodies. Drawing on Kantorowicz's classic work on the king's two bodies, the article addresses the tension between two visions of the presidency, one focused on the temporary and personal “body mortal” and the other on the "enduring 'body politic': king and kingship, one person with two distinct but indivisible aspects." I think very highly of the article, both substantively and in terms of its exploratory and fairly open-ended approach, and explain why. Here's the opening:

For reasons that remain mysterious, the past four years or so have seen a distinct rise in interest among public law scholars in the concept of “office” and surrounding ideas. What is an office, precisely? Is its defining feature one of powers—or of duties? What is the relationship between the office and the person occupying it? Do the powers and duties connected to that office inhere in the office, the officer, or some mixture of both? Can an officer speak for him- or herself, or is that speech always “official?” What is the relationship between office, officer, and the oath of office? Does the idea of fiduciary duty illuminate such questions, or obscure them? Of course these questions have a long pedigree. But since roughly 2017, this broad topic has seen a distinct upturn in scholarly work. One hopes it is not temporary or expedient.

Scholarly work on the question of office can take different approaches—legal or political, practical or theoretical. It can attain a level of abstraction that may yield general insights but few prescriptions—this is my own preferred sin—or give very precise recommendations that are hard to tie firmly to the legal, historical, or philosophical materials. (This is one way, in my view, to read a recent critique of “fiduciary constitutionalism,” even if one thinks the concept is worth exploring.) If one wants to avoid one or the other extreme, one had better be willing to live with tension and ambivalence. That position makes many law professors uncomfortable, given their own normative inclinations and the political and professional incentives that drive them. But it can be achieved—and beautifully, at that. Such is the case with Professor Daphna Renan’s recent article, The President’s Two Bodies.

As usual, my discussion of the paper is interspersed with hobby-horse complaints about legal scholarship and some thoughts on office and the oath. One question I don't ask here and ought to take up in a post of its own is: Which legal theories or ideas that gained a lot of interest during the Trump presidency, generally accompanied by suggestions that they were not limited to that presidency alone, will be dropped now that he will be leaving office? I think there is a core of scholars who will keep on writing about oaths, constitutional norms, the Take Care Clause, and similar questions, and I'm glad. But I imagine there will be a certain, unspoken drop-off of interest on the part of some who wrote in this vein, and I suspect fancy-law-review editors will be less interested as well. I would be happy to be wrong on one or both fronts.  

Posted by Paul Horwitz on December 18, 2020 at 02:52 PM in Paul Horwitz | Permalink | Comments (0)

Godwin's Law of Standing

An intentionally provocative framing of Friday's standing decision: A mayor (to keep the numbers small) issues a memorandum ordering department heads to identify, "to the extent practicable or feasible," all Jewish municipal employees so they may be excluded from receiving annual raises. Jewish employees must be identified by December 31, the date on which annual raises are triggered.

Could it really be that a Jewish employee does not have standing to challenge that memorandum prior to being identified and denied a raise? That each employee must wait until he is denied the raise, then sue?

And if not, how is this different than the census case? Is it numbers--there are more undocumented immigrants in the United States than Jews working in my hypothetical municipality, so it is more likely that all Jews can be identified? Is it the certainty of harm--no raise as opposed to maybe a loss of money or seats?

I should add I know there is no logic or consistency in standing analysis. But it is worth thinking about.

Posted by Howard Wasserman on December 18, 2020 at 11:56 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (6)

Malevolence + Incompetence = No Standing

That is the gist of the Per curiam decision dismissing the challenge to exclusion of undocumented persons from the census for lack standing/ripeness (at this point they are the same and we should stop treating them as distinct). Government agencies are struggling to identify undocumented persons and exclude them from the count--in other words, struggling to implement the presidential memorandum--by the December 31 deadline. This creates "contingencies" and "speculation" as to the extent of the harm (how many millions of people will be identified and affected) that "impedes judicial review."

Breyer dissented for Sotomayor and Kagan. Money quotation:

To repeat, the President’s stated goal is to reduce the number of Representatives apportioned to the States that are home to a disproportionate number of aliens without lawful status. The Government has confirmed that it can identify millions of these people through administrative records. But if the Census Bureau fails to fulfill its man-date to exclude aliens without lawful status and reduce the number of Representatives to which certain States are en-titled, it will be for reasons not in the record. Where, as here, the Government acknowledges it is working to achieve an allegedly illegal goal, this Court should not de-cline to resolve the case simply because the Government speculates that it might not fully succeed.

Otherwise, we have a new principle: Plaintiffs lack standing if government is too incompetent to get its shit together and commit the violation it intends, as a matter of announced formal policy, to commit.

Oh, and I forgot to add: I presume folks in the Trump Administration now believe standing requirements are great and necessary constitutional bulwarks and not technicalities and dodges wielded by fearful Justices.

Posted by Howard Wasserman on December 18, 2020 at 10:30 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (4)

Thursday, December 17, 2020

Trump v. New York--The Four Corners Offense

The Supreme Court did nothing with Trump v. New York (the census/apportionment case) before leaving for a month-long recess. This means that the case may never be decided, though that conclusion is not without complications.

Prior to January 20th, the President is supposed to receive the population tallies from the census and issue a report to Congress outlining the next reapportionment. One problem is that the pandemic is delaying the census work. Another issue is that the President's request to the Secretary of Commerce for data on illegal residents is creating a further delay. Thus, it is unclear whether the census data will be ready by January 20th. 

Even if the census data is ready before then, though, can President Trump issue the report if Trump v. New York is still sub judice? If he does, does that mean that the report is not final and can be changed by President Biden? The Justices might be stalling in the hope that they do not need to decide anything and can declare the dispute moot. Does the stalling, though, itself end up creating the mootness?

UPDATE: Today the Supreme Court dismissed the case for want of jurisdiction. We'll see if this comes back next year.

Posted by Gerard Magliocca on December 17, 2020 at 11:08 AM | Permalink | Comments (1)

Departmentalism and the First Amendment

Last month I speculated that government officials might enact laws they know will not survive judicial review but that make good political and constitutional statements.

Case in point is the bill that New York Governor Andrew Cuomo signed Wednesday. The bill prohibits the state from selling or displaying "symbols of hate," defined to "include, but not be limited to, symbols of white supremacy, neo-Nazi 10 ideology or the Battle Flag of the Confederacy." And it calls for the enactment of measures to prohibit the sale of symbols of hate on the grounds of the state fair or other fairs receiving public funds. The first clause is fine, although largely symbolic (not sure how many New York office buildings are flying swastikas). The second is almost certain to be declared invalid if challenged in court; the prohibition is a viewpoint-discriminatory restriction on speech that will occur in a limited public forum.

Cuomo acknowledged that constitutional questions surround the bill and promised to work with the legislature on "technical changes" to correct potential constitutional problems, although I am not sure what small change will save the fairgrounds portion. Eugene Volokh points out that the law likely cannot be challenged at this point because it does not ban anything; it orders a state agency to enact regulations. Perhaps this is why Cuomo believes there is an opportunity for changes that avoid constitutional problems.

Cuomo explained his reason for signing despite the constitutional questions:

This country faces a pervasive, growing attitude of intolerance and hate — what I have referred to in the body politic as an American cancer,” Cuomo wrote in his approval message.

“By limiting the display and sale of the confederate flag, Nazi swastika and other symbols of hatred from being displayed or sold on state property, including the state fairgrounds, this will help safeguard New Yorkers from the fear-installing effects of these abhorrent symbols.”

So did Cuomo act in an "unconstitutional manner" or violate his constitutional oath? It depends on whether he believes the law is valid, apart from what courts might conclude. And the concerns Cuomo describes--intolerance and hate is a problem--can be part of the legislative and executive calculus. He seems to be trying to thread a needle here--signing a broad law for show, then attempting to dial it back to address constitutional concerns. But in a broad departmentalist sense, what he did is fine.

Is there a difference between what Cuomo and New York did here and what other states have done with strict abortion bans? None of these laws will survive judicial review under current jurisprudence. One difference is that the abortion bans are designed to create litigation with the hope/expectation that a different SCOTUS majority will change its constitutional interpretation and render the laws valid. I doubt Cuomo expects SCOTUS to change its views on hate speech, viewpoint discrimination, or public forums. Should that matter to how we evaluate a departmentalist executive?

Posted by Howard Wasserman on December 17, 2020 at 09:31 AM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (2)

Wednesday, December 16, 2020

Fake electors

If the Trump presidency began with alternative facts, it ends with alternative electors: Uncertified Trump would-be electors who got together, voted for Trump, and sent their results to the archive to be opened in Congress on January 6. None of these actions have any basis in law. Michael Dorf explains that the lack of legal basis might not matter, while Neil Buchanan explains how some stupid mischief could play out without success on January 6, which may explain why Mitch McConnell has discovered his limit on cravenness.

But let me add one more wrinkle combining the posts. Neil argues that one reading of the Electoral Count Act is that Congress cannot reject a slat of electors unless there is a competing slate purporting to be properly appointed. Neil argues that simply rejecting the Biden electors would not create a path to Trump becoming President, because the rejection would not be of their votes but of their appointment as electors. So Congress could not subtract 73 electors (MI/PA/AZ/GA/WI) from Biden's 306, drop him to 233, and call for a contingency election; the 73 would be dropped from 538, giving Biden 233/465 and a one-vote majority. In other words, it is not enough to carve 73 votes from Biden; they need to shift votes to Trump.

This is where the "alternate" Trump electors (whom Dorf analogizes to the French citizens taking the "Tennis Court Oath" in 1789) come in. Although lacking a fig leaf of legal authority or state support (despite what Sidney Powell apparently represented to SCOTUS), they actually exercise as much authority as force and other actors are willing to accord them. Now there is an alternative slate of electors that Republicans in Congress could recognize, despite the lack of meaningful authority; instead of 306-232 Biden, it is 305-233 Trump. Note, again, no House contingency election; Trump wins outright.

Finally, Jermey Mayer offers a final nightmare in which congressional Republicans drag things out by contesting and debating every vote, then declare that there is no electoral college winner, triggering contingency elections. Steve Vladeck explains why this cannot work: There cannot be a contingency election unless Congress agrees that no one received a majority, which cannot occur unless Congress rejects--and replaces--some Biden votes. Delaying certifying Biden's win also delays certifying the absence of a majority winner. And, Steve goes on, if they delay until noon on January 20, Nancy Pelosi becomes acting president.

Mayer's hypothesis shows a problem with using shorthand in lieu of text and procedure, something I try to explain to my students. Mayer says "The Constitution specifies that if there is no Electoral College winner, the Senate chooses the vice president and the House picks the president." But that is not an accurate description of the text or process.  The 12th Amendment says, in relevant part, "the votes shall then be counted;-The person having the greatest Number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority," there will be contingency elections in the Senate and House. This requires more than Congress taking a long time to challenge votes. It requires Congress to do something--count and announce the results of that count. And a count, absent rejected votes or switched slates, will reveal a 306-232 Biden win. The text does not allow Congress to do nothing or to not count; inaction just runs the clock until no one shall have qualified as President or Vice President.

Note: None of this will happen, because Democrats control the House; this is all a parlor game. At the same time, if Democrats did not control the House, none of the legal niceties at work here would matter, because Republicans have shown themselves willing to do whatever they want. Which is the common them of both Neil's and Mike's posts.

Posted by Howard Wasserman on December 16, 2020 at 03:10 PM in Howard Wasserman, Law and Politics | Permalink | Comments (0)

Universality and the facial/as-applied distinction

An aspect of universality about which I have not written is its intertwinement with the distinction between facial and as-applied challenges to the laws.

Normatively, it should not matter. Dick Fallon has it right in arguing that facial/as-applied relates to the scope of the precedent rather than the scope of the judgment. A facial challenge produces precedent pre-determining the validity of the law as to non-parties and future cases, which future courts will apply as firmer precedent in resolving the second lawsuit. But any injunction in that first lawsuit remains limited to prohibiting enforcement only against the plaintiff. Descriptively, however, suggestions that a challenge to a law is facial bleeds into questions of who will be protected by the resulting judgment.

Case in point is Tuesday's First Circuit decision on a First Amendment challenge to Massachusett's ban on surreptitious recording, even of government officials performing public functions in public. In consolidated cases, the panel* the panel found one challenge ripe (Martin) and affirmed a declaratory judgment prohibiting enforcement as to recording of police in public spaces, while finding a second challenge (Project Veritas) not ripe as applied to recordings of all public employees and other individuals lacking expectations of privacy.

[*] The panel was David Barron, an Obama and potential Biden short-lister, who wrote the opinion; Justice Souter riding circuit; and Bruce Selya of the large vocabulary. Interesting note on seniority on the panel, which goes: Active Circuit, Retired SCOTUS, Senior Circuit

There was preliminary wrangling over whether Martin was facial or as-applied. Here is how Judge Barron resolved the back-and-forth:

Continue reading "Universality and the facial/as-applied distinction"

Posted by Howard Wasserman on December 16, 2020 at 10:07 AM in Civil Procedure, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Excluding Members-Elect from Congress

As a comment to my prior post noted, Representative Bill Pascrell of New Jersey wrote Speaker Pelosi last week and suggested that the Republican members who signed an amicus brief in the Texas lawsuit challenging the presidential election result should be excluded. Pascrell quoted Section Three of the Fourteenth Amendment and asserted: 

"[M]en and women who would act to tear the United States government apart cannot serve as Members of the Congress. These lawsuits seeking to obliterate public confidence in our democratic system by invalidating the clear results of the 2020 presidential election attack the text and spirit of the Constitution."

He goes on, but you get the point. Pascrell's request is absurd. Joining a brief is not "insurrection or rebellion" against the Constitution under any standard. If it were, the number of Representatives that could have been subject to exclusion would be quite long. We want people to use peaceful and lawful means to contest election results so that they don't use violent and unlawful means.

I would also point out that many people called President Rutherford B. Hayes "His Fraudulency"  during his Administration because of the murky circumstances of the 1876 election. Were they all engaged in insurrection or rebellion against the Constitution? Hardly. They were exercising their First Amendment rights.

Posted by Gerard Magliocca on December 16, 2020 at 08:46 AM | Permalink | Comments (3)

Monday, December 14, 2020

Draft Paper on Section Three of the Fourteenth Amendment

I've posted a draft of my new paper on "Amnesty and Section Three of the Fourteenth Amendment." Comments are welcome.

Posted by Gerard Magliocca on December 14, 2020 at 01:13 PM | Permalink | Comments (3)

Sunday, December 13, 2020

Not a technicality, still a distraction (Updated)

Standing is the word of the weekend, as the lame-duck President took to Fox to decry the reliance on "little technicalities, like a thing called standing," before expressing shock and awe that "the President of the United States does not have standing."

I prohibit my students from using the word "technicality" in class or in their work. Another word for technicality, I tell them, is "the law." It is not a technicality when evidence is excluded because police executed an unlawful search, because there are laws prohibiting police from doing that and those laws are no less important than the law prohibiting some action as a crime. And it is not a technicality when a court dismisses (or refuses to hear) case because it lacks the authority to hear it (as standing is understood), because the laws limiting the court's adjudicative authority is as important as the Electors Clause.

Update: Trump later tried his hand at textualism, insisting that SCOTUS' original jurisdiction is enumerated in the Constitution. But so is standing (descriptively derived as it is from the "case or controversy" language), in the prior clause of the same section of the same article.

Trump's complaint also ignores that one court found standing before rejecting all the merits arguments. The court's standing analysis is debatable. I agree that Trump was injured and that an injunction prohibiting certification would remedy that injury (subject to whatever happens next under state law). But any standing here would have been Third Party standing--Trump asserting the rights of the Wisconsin legislature to set election rules. The court either needed to find the other elements of third-party standing (close connection between Trump and the real right-holder and some barrier to the right-holder asserting its rights) or conclude that, as in Bond v. U.S., a party with standing can assert any alleged constitutional defect in a law.

All that said, I continue to believe that standing is jurisdictionalized merits. What courts have made a jurisdictional threshold is a merits determination: "Your constitutional/statutory rights have not been violated in this case because the law does not recognize those rights, so you lose on the merits." That is what standing measures--"perhaps the Constitution or law was violated in some way, but it did not affect you so you cannot be the one to pursue the claim and obtain a judicial remedy." Would we be better off if courts spoke about it in those terms, rather than as a threshold that can be waved away by non-lawyers as a technicality?

Posted by Howard Wasserman on December 13, 2020 at 01:02 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (9)

Friday, December 11, 2020

JOTWELL: Carroll on Martinez on judges behaving badly

The new Courts Law essay comes from new contributor Maureen Carroll (Michigan), reviewing Veronica Root Martinez, Avoiding Judicial Discipline, 115 Nw. U. L. Rev. 223 (2020), considering how to create mechanisms for holding judges accountable for misconduct when they no longer are on that court.

Posted by Howard Wasserman on December 11, 2020 at 11:04 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (2)

Requiem for principles

Multiple items, unconnected except by the thread of the ongoing coup attempt:

• Carter Philips, Republican former Assistant to the SG and SCOTUS advocate and leader of an early amicus opposing the Texas lawsuit, tells the National Law Journal (subscription required) that it would be "counterproductive" to seek attorney sanctions: "The problem is you just want this to end and to move on. It doesn’t help it to end if you start filing [frivolous litigation] motions and trying to sanction the other side. . . . It turns up the volume and gives more reason for rancor." Phillips is correct that sanction activity--or post-litigation efforts before state bars--keep this going. But then how do you stop this from happening again and again? The purpose of Rule 11 is to deter repetition of this conduct or comparable conduct by others similarly situated. Without the threat of sanctions, because those sanctions are counter-productive, nothing deters Wood, Powell, Paxton, et al. from doing this again. Put another way, sanctions exist because most lawyers are internally motivated to do the right thing and sanctions can deal with the outlier. What happens when those not internally motivated are not the outliers?

Jeb Bush says: "This is crazy. it will be killed on arrival. Why are smart people advancing this notion? Let it go. The election is over." Does he really not know the answer to that question? Smart people are advancing this notion because they can get not-smart (or not-informed or not-engaged) people to believe their narrative of a stolen election. That narrative might be dead on arrival before SCOTUS. But that narrative will allow them to maintain public support when they undertake a scorched-earth campaign against voting rights (which has already begun in Georgia in advance of the Senate run-offs) and against the Biden Administration. Ted Cruz said the Senate will not confirm Biden nominees "[a]s long as there's litigation ongoing, and the election result is disputed." So unethical lawyers bring bullshit cases, without fear of sanction or consequence, and unethical legislators use those cases as pretext to prevent Biden from governing, without fear of sanction or consequence.

• Speaking of: The President's new argument is that the Biden Administration will be a "scandal-plagued mess for years to come." Short term, he uses this as a basis for SCOTUS action (Principle: If SCOTUS knows the incoming administration will be bad, it can overturn the election to "Save America"?). Long-term, this is a repeat of Trump's successful 2016 move. It was obvious four years ago that Trump was a corrupt liar, but he managed to convince the press and a sufficient number of people that Hillary was more of a corrupt liar.

Now a President who was impeached, presided over the most corrupt and unethical modern administration, surrounded himself with criminals, engaged in blatant nepotism, and profited from public office is suggesting that the new administration is scandal-plagued before it begins. Which will work to make the press report on Biden's scandals--no matter how unrelated to the President or the administration--as if it was on a similar scale and degree to what we just witnessed (and continue to witness).

• And this is why I, and many Democrats, were disappointed by the results of this election, Biden/Harris aside. Republicans suffered no consequences for enabling Trump the last four years. They will suffer no consequences for enabling Trump in the current efforts to undermine a democratic process through blatant falsehoods. And they will suffer no consequences  for preventing Biden from appointing cabinet officials, never mind judges. So there are no incentives to get them to stop.

Posted by Howard Wasserman on December 11, 2020 at 10:25 AM in Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (5)

Thursday, December 10, 2020

New Fed Courts cases from SCOTUS (Updated)

As the Court wrestles with absurd original-jurisdiction cases, some procedure decisions from SCOTUS today, with some interesting twists and background points.

Carney v. Adams involved a challenge to Delaware law controlling party affiliation for judges; a unanimous Court, per Justice Breyer, held the plaintiff lacked standing because he failed to show he was "able and ready" to do something to be injured by the challenged law. Bare testimony that he "would apply" for a judgeship but for the party limitations was insufficient to establish a particularized harm, especially when balanced against the sequence of events (he never applied for any judgeship, retired as an attorney, read a law review article about the invalidity of these party limits, unretired, changed his party affiliation from Democrat to Independent, then filed the lawsuit about a week later). Basically, he got Lujaned--he did not have the judicial-application equivalent of a plane ticket. Justice Sotomayor concurred to comment on some issues that might arise on the merits of a future challenge to laws such as these.

Tanzin v. Tanvir, unanimously per Justice Thomas, held that federal officers could be sued for damages under RFRA; the action was brought against FBI agents who allegedly placed three Muslim men on the "No Fly List" when they refused to act as informants. A lot of discussion. RFRA provides an express cause of action against governments, which includes officials and other persons acting under color of law, terms which include personal-capacity claims against government employees. The Court uses § 1983 to establish background understanding for concepts such as under color and damages as a remedy for constitutional violations.

Qualified immunity lurked in the background in Tanvin in two interesting respects. First, the Court drops in a footnote that everyone agrees that the officers can assert qualified immunity, which pre-ordains what will happen in this action on remand (it will not be clearly established that placing someone on the List in retaliation for not spying on their neighbors violates religious freedom). I guess it makes sense as a policy matter that qualified immunity applies. But why does it work as a statutory matter. The logic of qualified immunity and § 1983 is that a qualified-immunity-type defense existed at common law in 1871 and was incorporated as background in § 1983 in the absence of a plain statement rejecting the defense. (The dissimilarity between modern QI and what existed at common law is the basis for Will Baude's criticisms). The logic of qualified immunity and Bivens is that Bivens is the federal counterpart to § 1983. But what is the source of qualified immunity to assume it was incorporated (again by silence) into RFRA? I guess the argument would be that RFRA displaced § 1983 and Bivens and was modeled after both, so any defense built into these was built and incorporated into the new statute. (Update: Doug Laycock confirms this, along with the belief that QI was a necessary concession to get a damages remedy in the statute. Thomas describes the scope of § 1983 at the time of RFRA as permitting "monetary recovery against officials who violated 'clearly established' federal law.").

Second, Thomas is the one Justice who expressed an interest in at least reconsidering QI. It thus is interesting that he incorporates into RFRA the broad understanding of under color to include suits against any official acting as an official in his personal capacity. One argument for broad QI (as Will discusses in his article) is as a counterweight to a broad conception of under color--Screws/Monroe were wrong, so QI corrects that imbalance without overruling those cases. But I wonder what Thomas' broad adoption of under color means for his views on QI.

United States v. Briggs unanimously held that certain rape prosecutions under the UCMJ were timely, an unfortunate loss for Steve. Justice Gorsuch concurred to express his continuing view that SCOTUS lacks jurisdiction to review decisions from the Court of Appeals for the Armed Forces (an Article I Court).

Posted by Howard Wasserman on December 10, 2020 at 11:50 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

The Texas Lawsuit on the Presidential Election

Here are some questions about the pending litigation:

  1. Should the Supreme Court reject the bill of complaint without explanation, should an explanation be given, or should one or more Justices write an explanation for themselves? This strikes me as a hard issue. There are many people who think that the Court will do something to change the election result. If the Court does not do that and does not explain why, would that not be a problem? I can also see, though, that getting agreement quickly on what to say (in other words, before the Electoral College meets) might be rather difficult. So maybe they should just issue an order and let some subgroup write an explanation for themselves.
  2. Will the three Justices who were appointed by the President feel compelled to explain themselves? I can see advantages to that in confirming the legitimacy of the election. But I can also see why they might want to stay as far away from that as possible (i.e. they'll get a lot of death threats).
  3. What will be the reaction when the Court rejects the lawsuit?

Posted by Gerard Magliocca on December 10, 2020 at 09:19 AM | Permalink | Comments (22)