Nobody/No One 2020

In 2016, repulsed by both major party candidates, I cast a protest vote for Evan McMullin. It did not take very long for me to echo Gob Bluth.

Normally when you cast a protest vote, the idea is to highlight the weakness of the major party candidates by picking a person of high character and/or who holds policy views much closer to your own heart. When you wind up voting for someone who manages to be an even bigger grifter than either of the two moral cretins you’re protesting, well, you done messed up.

Seeing as how I messed up four years earlier, I vow not to repeat my error. Therefore, to save myself some future regret, I will be leaving the presidential field blank. I am voting for nobody, and I feel fine.

That’s not to say I am not voting at all. There is a US House race, of course. I will be voting for whatever sacrificial Republican they’ve managed to dig up to run against Jamie Raskin. Raskin, as you may be aware, has drafted some legislation around the 25th amendment to give Congress more power to remove the president, aka the “Let’s Try and Make Kamala Harris President Sooner” act of 2020.

*And I will not be able to escape Raskin, even though I am moving 50 miles away to the north and west, several counties removed. Yep, he will still be my representative. Gotta love gerrymandering.

There are also four local ballot initiatives. Raskin, along with Montgomery County Executive Marc “I use the phrase science and data in every statement I make to justify continued school closures and lockdown measures even though I never actually produce either the science or data to justify these draconian policies” Elrich, have publicly announced which of the two ballot initiatives they are supporting and which two they are opposing. This is very helpful to me, because I can vote precisely the opposite way. They’ve both saved me a ton of research time, thus marking the first time either has done anything in public office to help improve my life.

Getting back to the presidential election, in voting for neither President Trump or Vice President Biden, I have made roughly the same calculation I made in 2016: neither person is worthy of my vote, but neither is so terrible that I feel compelled to vote for the other guy. Granted the Democrats and their allies in the press seem to be doing everything in their power during the Amy Coney Barrett confirmation process* to make me rethink this position.

*No, filling vacant judicial seats IS NOT the same thing as packing the courts by expanding the number of judges. Anyone making this argument is either a liar or an idiot, and I won’t go along with this obvious gaslighting effort.

I’ve spent the better part of five years expressing why I don’t like President Trump and view him as unfit for office, so I feel no need to repeat myself. As for Joe Biden, it’s a curious thing to be repulsed by Donald Trump’s character while ignoring the many ways Biden, if not as repugnant, is a seriously flawed human being. And while he may not be as radical as the left flank of his party, he is no moderate. Nothing quite demonstrates his lack of fitness as his artless refusal to answer whether or not he would support a court packing plan. It takes some bold leadership to tell the American public it doesn’t deserve an answer.

By stating my refusal to vote for either man I will of course be accused of essentially casting a vote for Joe Biden by Donald Trump voters and for Donald Trump by Joe Biden voters. So in voting for nobody I am somehow voting for two different men, which I guess is the same thing in the end.

Trump voters seem to view anything less than full-throated support for their man as something akin to treason. I am essentially risking the country’s future by allowing a socialist tyrant to take the reins of power. If Joe Biden wins, socialism will be implemented in America within about three months, and we will lose all essential freedoms. I am not entirely without concerns about a Biden administration from a policy standpoint, but as I have written elsewhere, as long as Republicans at least have a strong Senate minority, many of the fears about a Biden administration are overblown.

For now.

As for the #Resistance, it’s basically the same sad song as above, only instead of a socialist tyranny we have to fight the final fascist takeover of America. We’re just one election away from the end of America as we know it, and if you don’t think Donald Trump is Hitler reincarnate, then you’re probably just a secret Hitler wannabe yourself.

I guess I can understand the fears of these brave #Resistance warriors. They’ve courageously battled the orange fascist tyrant lo these four years. The #Resistance has had to do it all with nothing except control of multiple state governments, control of one-half of the federal legislature, and almost complete dominance of the media, entertainment industry, and academia. You know, just like the French Resistance had to make do in battling the Nazis.

I will risk the disapproval and disappointment of my friends in not casting any presidential ballot. I know it will be difficult, and I guess I will just have to risk the consequence of not being able to say down the line, “Don’t blame me, I voted for Kodos.”

It Is Time For A Political Realignment

I left the Republican party just over four years ago. I think I officially changed my party affiliation to Independent the week before the GOP convention. I had fought the good fight, but primary voters had their own preference.* But not only had the voters selected someone whom I opposed morally and ideologically, it was apparent even as early as July 2016 that the party was morphing into a political cult revolving around Donald Trump.

*Funny thing about that. If non-Republicans had not been allowed to vote in so many primary states, it is quite likely that Donald Trump would not have been the nominee. At least in the early states, most of which had open primaries, Trump’s biggest base of support were non-Republicans. I haven’t run the numbers in the while, but those voters likely gave him the margin of victory in a lot of states. I may be old-fashioned, but it seems to me that it should only me actual members of a political party who get to choose their party’s nominees. And I say this as someone who is a registered Independent in a closed primary state.

Four years later there remains little chance I will rejoin the party anytime soon. And judging by what is happening in the Democratic party, there is even less of a chance I would go anywhere near it. The Republican party is closer to where I am ideologically, and I will likely be voting for the GOP where I can down ballot, but right now I feel politically homeless.

We’re already beginning to see a flourishing of think pieces of where the GOP is headed post-Trump, whether that means 2021 or 2025. I’ve touched upon that to some degree here. I am not filled with a lot of confidence that the party will be headed in a good direction regardless of what happens this Fall. The extreme ends of the party are being tugged on one hand by Never Trump Republicans who fail to recognize the conditions that gave rise to Trump, and seem insistent on a return to the mundane policy framework which angered so many in the first place. On the other extreme are those who are either dispositionally in accord with Trump or who at least have adopted a nationalistic framework without the bombast. Neither of these extremes is one a classical liberal can feel entirely comfortable with.

On the other side of the aisle, liberal Democrats cannot be thrilled with the state of their party. While Joe Biden himself represents something of a return to normalcy, so to speak, no one can say with certainty who will dominate the agenda moving forward. Several “moderate” Democratic incumbents have already been defeated this year in primaries by candidates closely aligned with “The Squad” and who all have adopted the most extreme progressive policy positions associated with that wing of the party. Of course, even with these additions this wing of the party remains firmly in the minority within it, but it is certainly ascendant. And while John Kasich bleated about the party’s supposed centrism last week, that’s not really where the party is.

The forces of illiberalism are thus increasing, not decreasing, their hold on both major parties, and it may be time for liberals associated with either to ponder if a new alignment is necessary to protect the liberal order.

In a certain sense this seems unlikely. Though the broad coalition of liberals may agree on a philosophical level about first principles, we may disagree strongly on specific issues like abortion, healthcare, gun control, and the like. It may be impossible to assemble a political coalition doomed to immediate infighting over policies.

Perhaps this alignment can function outside of the party system, although it’s difficult to envision how this would work functionally. But there is precedent in American history for at least a momentary coalition of convenience for people who share basic core beliefs.

I am talking specifically about James Madison and Alexander Hamilton. At no point prior to 1786 and especially after 1788 would they be described as co-partisans, yet they joined forces at the most important point in American history precisely because they had a shared belief in the necessity of forging a strong national government.

Though they would split at the outset of the Washington administration and become the central figures of America’s two political parties, it is their collaboration during the run-up to and the aftermath of the constitutional convention that helped forge the American republic as we know it. Their vision for what this republic would be did not differ all that substantially. At their respective cores, both men wanted a stronger national government that was nonetheless limited in scope, and which curtailed the excesses of majoritarian democracy. Theirs was a quasi-Burkean philosophy respectful of tradition and wary wide-eyed utopian and revolutionary ideas.

Though Madison would later join forces with Jefferson due to a shared agrarian economic philosophy, as well as skepticism at Hamilton’s financial plans, Madison remained much more tethered to a somewhat more conservative philosophical approach. Jefferson was the radical democrat who advocated continual revolution. That was not Madison’s bag.

Now may be the time for classical liberals to reverse engineer this dynamic. Whereas Madison and Hamilton worked together first to create a republic, and then split over partisan politics, classical liberals of today who are divided by party need to reunite to stem the tide of anti-liberal sentiment that threatens to undermine the very fabric of our republican order.

I can’t deny there are several roadblocks to this potential unification. First and foremost, as already mentioned, classical liberals are sharply divided on core issues. I am not certain how it will be possible to resolve certain intractable differences of opinion over, for instance abortion. Our respective approaches to the constitutional question of abortion might provide an area of agreement – pro-choice liberals tend to be skeptical of the legal reasoning in Roe v. Wade – but that would be the limit of our agreement.

A bigger stumbling block is the nature of the two-party system. Though parties have come and gone, and the parties of today have both changed much over nearly two centuries, America has basically been a two-party country since its the founding of the American constitutional republic. Could classical liberals come together to forge a third party, thus upending the two-party dominance seemingly inherent in our system? As unlikely as that is, I am not sure it would be possible to “take over,” so to speak, either the Democratic or Republican parties. The latter still seems slightly more amenable to such a turn, but only barely, and less so each day.

What’s more, are we even a significant portion of the populace to be our own political force? Anti-liberal populism certainly seems to be the id of the moment, and the political dynamics of our moment only seem to reinforce increased populist sentiment, as each extreme becomes even more extreme when the other side seemingly gains an upper hand at any given moment.

Then again, maybe social media makes us feel like more of a remnant than we truly are. Maybe the reality is that most Americans are more sympathetic to our general framework, but they don’t tend to be the ones who lash out on Twitter.

Maybe a more modest effort is what this moment calls for. Rather than forming a third party or trying to take over one of the existing parties, we just need to forge more alliances of convenience. For example, I will take my own (current) home county of Montgomery County in Maryland as an example. It is a uniparty county in which Republicans have virtually no voice. Getting a Republican elected as a county commissioner seems unlikely, and it’s difficult to see a GOP takeover of the county council anytime soon. Yet the county government – the very one which tried to block private schools from in-person instruction this Fall – has hardened into a hard-left block. Based on many a conversation in-person and online I suspect there are many Democrats who are not happy with this situation. Republicans of a classical liberal bent are better off working with Democrats of such a bent on getting a more sensible and, yes, perhaps even Democratic governing coalition elected than working futilely to elect Republicans. Liberal Democrats, meanwhile, are outgunned in the primaries. They would be better off working with Republicans to help get better candidates into office.

*And yes, I wrote about how I am opposed to open primaries. This is where uniting behind a “third party” candidate may work.

This dynamic can certainly also work in reverse in Republican-dominated areas that have also hardened into an anti-liberal block.

None of the options are particularly easy and free of potential stumbling blocks. Yet, liberals of all stripes are going to have to figure out some way of working together where we can lest the country be completely riven by two competing anti-liberal forces.

The United States of Fear

Dramatic representation of social media commenters addressing people engaging in activity outside the home.

In graduate school, I wrote a paper titled “Fear and the American Founding.” My thesis was that both the Founders/Federalists and Anti-Federalists were in part motivated by fear. The Anti-Federalists feared expansive government power, particularly placed in the hands of a federal or national government. The Federalists, meanwhile, feared both government and the masses. It was this fear that prompted them to establish a republican government of limited powers, based in part on democratic elections but which also was not based on majoritarian sentiment.

In many respects I still stand by the thrust of the paper, perhaps though with some moderate revisions.

Fear can be a force for good, in a certain sense, so I have never cared for FDR’s bluster that “the only thing we have to fear is fear itself.” Perhaps if more Americans were afraid of the long-term deleterious consequences of the New Deal and expansion of presidential power, then we could have avoided some of the problems we still face today.

There’s a distinction to be made, however, between jealously guarding your liberties and letting fear take complete control of your actions. It seems we have traveled far afield of generations who had a strong, but rational fear of government, mass democracy, or what have you. Now our politics seems to be inspired by an ignorant fear of the unknown. What’s more, these fears are stoked by media institutions all too happy to play on those fears.

I think the video from my previous post is worth reposting here.

This fear-driven paranoia is augmented by the sense of spite I wrote about previously. We are fed bits of media that only reconfirms our fears. And so many are not getting pieces of information that contradict our fear-driven notions. That’s why millions of parents are absolutely scared to death of sending their children to school despite the overwhelming evidence that there is less of a chance their child will die of COVID than the typical flu. But that’s not what they are reading or seeing on MSNBC or the Facebook memes they rely on for talking points. And it’s also why millions of Americans are defying mask orders, because obviously they are a government plot of some kind. Their importance to health and safety are not the sorts of things they read about or see on Fox News or the Facebook memes they rely on for talking points.

As I said, spite feeds the fear. “If the other guy isn’t concerned about something, and that guy is voting for Trump, then we better be damned sure to shut it down.” And of course the same applies on the other side.

Benefit/cost calculations have been tossed aside in favor of vague feelings that something is bad. You can throw out all the COVID stats you want at someone suggesting that children are not particularly vulnerable to the virus, and you will likely just get a shrug of the shoulders and a curt dismissal of the evidence. “I just don’t feel it’s a good idea to send kids back to school,” says the person offering no evidence to justify this feeling.

There was the notorious Flight 93 article from the 2016 election intimating that the choice was to vote for Donald Trump or welcome the end of the republic. Since then, the Flight 93 parallel has been used by those both wanting to vote for and against President Trump, as though the very future of the republic hangs in the balance based on this one presidential election. Every election is the most important election of our lifetime (until the next one), and if our side loses, then we are doomed – DOOOOOOOOOOOOMED I tell you.

We can go on and on playing the somewhat boring both sides game, and so I will stop there. In the end, this mass-media induced fear is spurring the populist movements on both the left and right to reject the liberal order upon which we were founded. Yes, you might say I fear this turn of events, but my fear is based on a careful understanding of history and where populist, anti-liberal ideologies tend to bring society.

So what is a despondent classical liberal to do when faced with such a bleak landscape.

On that, I have a few ideas.

The United States of Spite

I don’t think I’ve ever seen a more perfect distillation of our country’s political climate as this video.

The narrower point of this video is something I’ve seen play out on right-wing social media groups especially. Every discussion is framed around approval or disapproval of Donald Trump. Objecting to an overly critical or unfair hit piece against the president leads to immediate howls that you are a “Trump Humper.” Conversely, pointing out the flaws in some obsequious piece lauding Trump for allowing the sun to rise that day is to be labeled a socialist, communist, or, worse yet, a Biden supporter. No middle ground between “Trump is Greater than God” and “Trump is Worse than Hitler” is acceptable to seemingly 90 percent of the American population.

There is a larger subtext, and it is that the extreme edges of our political debates are motivated, it seems, by simple spite. “If Trump’s fer it, I’m agin it” See the likes of “conservative” columnists Jen Rubin disclaim long-held beliefs because Donald Trump has adopted it.

This stupidity plays out in the coronavirus discussion. How many people refuse to wear masks for no other reason than a bunch of (to them) liberal establishment types say it must be done? Conversely, how many individuals are delighting in ratting out someone who isn’t wearing a mask, or is not “properly” socially distancing?

It’s because of this that I was so annoyed by this picture.

Personally, I couldn’t care less. Dr. Fauci is seated next to his wife on one side, and a close friend on the other. Of course, unless he has the super new Iphone which has the bottled water app, I don’t see him drinking (he has a bottle to his side, but that’s not what is in his hand).

But the optics are terrible. It’s already going to annoy some that he even gets to attend a baseball game, a privilege denied to all other non-connected Americans. But there he is, mask off, chatting with someone not in his household just inches away. Like it or not, there will be people who see this picture and say, “Well if Dr. Smarty Pants ain’t gonna wear that mask right, I’m not going to wear it at all.” So Dr. Fauci needs to be more attuned to this environment.

Jonah Goldberg and others have noticed this tendency, so I won’t belabor it. But it does seem America’s increasing political tribalism is spurred on this spiteful inclination. More and more people are defining themselves not by what they believe, but what “the other side” believes.

Spite is thus one of the two animating drives in American politics. The other will be addressed next time.

To wrap things up, and also to set the stage for my next post, here’s another video from Ryan Long that also helps capture the current mood.

Qualified Immunity: Why We Should Narrow and not Eliminate the Doctrine

With so many legal-related issues swirling around on my (admittedly limited) social media feeds, I’ve had a plethora of things that I could write about.  Unfortunately, many of them I am completely unqualified to discuss (race, sexual orientation, police brutality, etc.), while others I cannot discuss for ethical/professional reasons.  That said, I figured I’d focus some attention on one that I am both somewhat qualified to and not otherwise prohibited from opining on.  Namely, I want to darken your feeds with a more in-depth discussion of the doctrine of qualified immunity and why I remain unconvinced that it should be “eliminated” as many people are currently clamoring for. 

Qualified immunity is a complicated subject, which I fear has been oversimplified to mean that police and other government officials are “unaccountable,” simply because they cannot be sued for money damages.  The reality is that there are a lot of difficult legal and policy questions involved with the wholesale elimination of qualified immunity.  As such, it is far from clear to me that even if that movement were to succeed that it would produce the promised results.  Allow me to explain myself in more detail.

First, as I frequently do, I feel a need to explain what the law actually is.  So, let’s start with where a citizen’s right to bring lawsuits against state and local officials for money damages comes from.  Basically, when people talk about suing the government there are generally two kinds of things that a court can be asked to do.  One is grant what lawyers call “injunctive relief,” basically an order prohibiting the government official from taking or continuing to take a specific action (i.e., stop holding a person in custody; or stop enforcement of an unconstitutional law).  The other kind of ask is the one most people think of when they hear the word “lawsuit;” namely, a suit for “money damages,” where the person suing claims they have suffered damages and want the government to compensate them for their loss with money.  

Most suits for money damages are brought in state and local courts.  However, since its enactment in 1867, federal law, specifically, 42 USC § 1983 (section 1983 or § 1983), states that

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

Thus, the general rule is that, under § 1983, any state actor who violates an individuals’ constitutional rights or otherwise breaks the law “shall be liable” to the party injured.  In other words, if you are the victim of state action in violation of your rights (statutory, constitutional, or otherwise), you have a claim for money damages under federal law, which can be brought in federal court.

Like many statutes, however, even though they do not specifically contain exceptions, they are interpreted by courts in light of other generally accepted legal doctrines.  These include things like “cannons of statutory construction” and common law (i.e., judicially created) immunities.  Qualified immunity is one such common law doctrine, which, where applicable, shields state actors (state and local police, social workers, firefighters, EMTs etc.) from liability for misconduct, even when they violate individual constitutional rights or otherwise break the law.  

Contrary to some commentators that I have seen, this doctrine is not new.  In fact, the Supreme Court first applied the modern doctrine of qualified immunity to a section 1983 claim in 1967.  The case, Pierson v. Ray, held that “the defense of good faith and probable cause, which the Court of Appeals found available to the officers in the common-law action for false arrest and imprisonment, is also available to them in the action under § 1983.”  386 U.S. 547, 557 (1967).  The Court thus described qualified immunity as grounded in common-law defenses of good faith and probable cause that were available for state-law false arrest and imprisonment claims.  While Pierson focused on common-law defenses available at the state level at the time the case was filed, subsequently, the Court has repeatedly explained that qualified immunity is drawn from common-law defenses that were in effect in 1871, when § 1983 became law.  See, e.g., Filarsky v. Delia, 566 U.S. 377, 383 (2012) (“Our decisions have recognized similar immunities under § 1983, reasoning that common law protections ‘well-grounded in history and reason’ had not been abrogated ‘by covert inclusion in the general language’ of § 1983.” (quoting Imbler v. Pachtman, 424 U.S. 409, 418 (1976))); Buckley v. Fitzsimmons, 509 U.S. 259, 268 (1993) (asking whether immunities “were so well established in 1871, when § 1983 was enacted, that ‘we presume that Congress would have specifically so provided had it wished to abolish’ them” (quoting Pierson, 386 U.S. at 555))

After Pierson, the Court has consistently expanded the scope and application of qualified immunity.  In 1974, the Court decided Scheuer v. Rhodes, 416 U.S. 232 (1974), where it effectively abandoned the analogy to common-law torts with a good-faith defense.  The Court in Rhodes held that the doctrine of qualified immunity would apply to all suits under Section 1983 not just those where a good faith defense had previously existed.  Then, in 1982, the Court decided Harlow v. Fitzgerald, 457 U.S. 800 (1982).  In Harlow, the Supreme Court said that what mattered was not the defendant’s actual good-faith belief in the legality of their action, but “the objective reasonableness of an official’s conduct, as measured by reference to clearly established law.” (Emphasis added.)  In other words, after Harlow qualified immunity is available in all cases, to all defendants, unless the rights violated were “clearly established.”  The Supreme Court has continued to tighten this standard over the years, clarifying that qualified immunity protects “all but the plainly incompetent or those who knowingly violate the law.”  Malley v. Briggs, 475 U.S. 335, 341 (1986).

There is a growing concensus amongst many legal commentators that it’s exceedingly difficult to determine exactly what it means for rights to be “clearly established.”  There is little doubt that “clearly established” is an exacting standard that is nearly impossible, in most cases, for plaintiffs to satisfy.  To deny qualified immunity, courts generally require not just a clear legal rule, but a previous case with nearly identical facts.  Although the Supreme Court has indicated that an exact case on point is not strictly necessary, it has also stated that “existing precedent must have placed the statutory or constitutional question beyond debate.”  Reichle v. Howards , 566 U.S. 658, 664 (2012).  As lawyers are quite skilled at disputing even seemingly obvious points, and courts regularly rely on minor factual distinctions to reach the conclusion that the law was not “clearly established,” there are a large number of cases with clear and indisputable rights violations—some of which involve downright egregious, embarrassing, and beyond indefensible behavior by law enforcement officials—for which damages are denied on qualified immunity grounds. 

All of this leaves us with a statute interpreted to include a judicially created, common law immunity that is nearly impossible to satisfy.  But is it objectively wrong?  And, if so, what can be done to correct it?  These are much more difficult questions to answer.  Let me start with the first question, is qualified immunity objectively wrong?  The answer, as it frequently does, depends on what exactly one means.  Was the Supreme Court wrong to find that the doctrine applies to cases brought under § 1983?  No, I don’t think so, at least not entirely.  There are some very good legal and policy reasons to have qualified immunity, at least in the original “good faith” sense of the doctrine.  For example, let’s assume that a state or local government passes a law of questionable or debatable constitutionality.  It can sometimes take years to obtain a definitive ruling about the law one way or the other.  In the meantime, the law will (unless enjoined by a lower court) need to be enforced.  Local officers, acting in good faith, do just that, but their actions (all reasonable) causes a citizen damage.  Shorty after the enforcement that causes the damage the courts conclude that said law is unconstitutional.  Should the officer be held responsible for doing their job in good faith?  At the time the officer acted the law was on the books and enforceable.  It was later determined to be a bad (unconstitutional) law.  That’s not the officer’s fault or even within his or her control.  Yes, the action of the officer caused damage, but it was reasonable and lawful at the time.  It seems, at least to me, that this is precisely the kind of scenario for which qualified immunity was intended to apply.  The fact that one can posit such scenarios (and there are others), means, again at least to me, that qualified immunity is not “wrong.”  Now the doctrine may have been overdeveloped and applied too broadly or in too many circumstances, but it’s not obvious that it is entirely, or even objectively wrong.  If that’s correct, then it seems the solution that must follow is to narrow its application, not eliminate it entirely.

And here is where things get really complicated.  If we can agree that qualified immunity needs to be narrowed, who is to do and how?  Two options for the first question.  One is that the Supreme Court can do this on its own.  They created the doctrine as a matter of common law; thus, they can modify it.  The Supreme Court, however, has declined to do so and—as evidenced by this most recent term where it declined to grant certiorari in several cases that would give them an opportunity to narrow the doctrine—seems unlikely to do so anytime soon.  The Court isn’t the only option.  Qualified immunity is a doctrine of common law origins.  It is not constitutionally based.  Therefore, Congress can amend § 1983 anytime it wants and place limits on the immunities available to the Court. 

That answers the who, but now for the how.  This is really, really hard.  Any change in qualified immunity policy is going to have consequences, intended and unintended.  Let’s start with a simple problem, should we narrow qualified immunity just for law enforcement agencies?  Keep in mind that qualified immunity applies to all state and local officials, not just law enforcement.  On one level, narrowing for only law enforcement makes sense as law enforcement is arguably the biggest beneficiary of the doctrine.  On the other hand, narrowing the doctrine may have the biggest effects on how law enforcement behaves and how cities, counties, and states respond.  Consider two other issues. 

First, a narrowed qualified immunity means there are a greater number of actions for which law enforcement can be held liable.  A reasonable question to ask is whether we want law enforcement to consider potential liability before acting?  In other words, do we want cops to engage in a risk v. reward analysis before deciding whether to act?  Now, to be sure, on some level this already happens.  But if we narrow qualified immunity it likely will happen more often and perhaps at times when it otherwise shouldn’t.  It seems to me there is a risk of making cops “gun shy” not in the literal sense of being afraid to use their weapons (though that might not always be a bad thing), but in the broader sense of being afraid to run towards the danger, or make the questionable call that could save lives but might damage property.  There are thousands of decisions made by officers each and every day that might subject them to liability, the more of those there are the potentially more paralyzing the job can become.  We certainly do not want officers to be free to do whatever they want whenever they want, but nor do we want them so paralyzed that they can’t or won’t act when we most need them to.  This is a delicate balance that any reduction in qualified immunity must seek to obtain.  It’s also an incredibly difficult line to draw, especially in legislative language.

Second, if you narrow qualified immunity you increase the likelihood that damages will be paid to citizens.  That’s fine, but where is that money going to come from?  The answer as it turns out is almost always from us the taxpayers.  The reason for this is that almost all public officials (especially members of law enforcement) are indemnified.   This means that even when a public official, like a law enforcement officer, is sued in their individual capacity, their local or state employers will almost always pay for their legal defense and cover the cost of any judgment against them.  According to one study, state and local governments paid approximately 99.98% of all dollars that plaintiffs recovered in § 1983 suits against law enforcement.  See Joanna Schwartz, Police Indemnification, 89 N.Y.U. L. Rev. 885 (2014).  In other words, increasing liability increases the cost of providing services.  Put another way, the cost of paying damages will become “factored into” the budgets of law enforcement agencies, likely resulting in them requiring a greater amount simply to keep operations at their current levels. 

One counter to this is that state and local governments could stop indemnifying law enforcement and require officers to obtain private insurance policies that will cover the potential liability.  Certainly, this is a possibility, however, it is far from clear that it will work they way some may hope.  Insurance is costly and suits, even long shot suits, cost money to defend.  As more suits are filed the cost of the insurance will go up to cover the costs of the increase in payouts.  Just look at medical malpractice rates, which are so high in some places that they actually prevent doctors and other health care providers from opening offices and providing services.  I don’t know that the same would happen to law enforcement, but it seems possible that a personal liability policy would make being an officer so expensive that many people would opt not to do it.  Similarly, if salaries were to increase to cover the cost of the policies, the burden on state and local budgets would still be quite high as to potentially be cost prohibitive. 

The point is that there are costs associated with changing the doctrine.  Costs that need to be borne by someone or something, whether the officers personally, the state and local governments that employ them, or some other entities like an insurance company.  Someone is going to need to come up with the money and this is not a minor sum we are talking about.  What is the monetary value of a constitutional rights violation?  Presumably it’s not hundreds of dollars, but more likely hundreds of thousands and even millions.  Would this increase officer accountability?  Maybe, it is true that there are few incentives greater than the almighty dollar.  But it is far from a certain result and may take years and millions in settlement and judgment payments for the system to sufficiently adjust and an equilibrium to be established. 

Just to be clear, none of these are reasons not to reform qualified immunity.  Nor am I suggesting that I wouldn’t be in favor of reform.  I do not think I favor wholesale elimination for the reasons noted above.  Honestly, with respect to narrowing the application or other reform, I don’t yet know how I ultimately come out on the question.  My purpose was merely to explain the law and to point out that it is very, very complicated, much more so than I think is being debated at least in some corners of the interwebs.  Reforming qualified immunity is arguably seen as “low hanging fruit” in the minds of some advocating for more general police reform.  Of that I’m not so sure.  I think there may be other, easier, less complicated reforms to tackle first, while we carefully study this one and figure out what the best approach is going to be.  Maybe this is done piecemeal as part of some state and local reforms first, to see what the actual effects are before Congress adopts a nationwide rule of law for § 1983. 

Again, I don’t know what the “best” answer here is, I only know that all decisions have consequences and we should be sure we know what they might be here before rushing to make a change we don’t fully appreciate and understand.

What is Involved in Constitutional Litigation

While this is technically not a legal blog, some of us are actually lawyers with day jobs. So, with that in mind, I thought that this particular case presented a “teachable moment” and, since everyone is “distance learning” nowadays, I thought I’d write it up and share.

As some of you know, I’m generally reluctant to discuss precisely what I do for a living.  When pressed, I usually say something vague like, “I practice Constitutional Law,” or “I advise and litigate constitutional disputes on behalf of the US House of Representatives.”  This usually requires a change in topics because, unless I’m talking with fellow lawyers (or people who spend a lot of time around lawyers), they don’t really know what to ask next.  If I’m being totally honest, part of my reticence is because it’s very difficult to explain what the actual practice of constitutional law is like.  Many people think that constitutional lawyers just sit around reading old books and arguing about what arcane phrases like “due process of law” and “free exercise of religion” meant in 1787.  Don’t get me wrong, that’s partially true—there is a lot of reading old books and trying to divine meaning from esoteric groupings of words written on parchment paper with quill pens—but that’s far from the whole story. 

From time to time, some of these cases actually see the inside of a courtroom, but not in the sense of what one might see on Law and Order, Perry Mason, or your run-of-the-mill TV legal dramatization.  No, these cases take place mostly on paper, reams and reams of paper, with complex factual and legal arguments that are very different than your typical civil lawsuit or criminal case.  Usually, when people think of “civil litigation,” they think of tort claims, like auto accidents, medical malpractice, or maybe product liability class action suits (think of the cases in the movies “Erin Brockovich” or “A Civil Action”).  While those examples are closer to the truth, they still leave a lot to be desired.  Most constitutional cases rarely reach what lawyers call “the merits,” i.e., who was right and who was wrong.  Rather, they are frequently decided on procedural questions that have a profound impact on the way that the Constitution is interpreted.  Such cases are often hard for journalists to report on accurately, largely because they do not lend themselves to simple soundbites and pithy headlines. 

Recently, the Fourth Circuit Court of Appeals in Richmond, Virginia, issued an opinion that is a textbook example of the kind of things I frequently deal with in my professional life.  It’s high profile enough that it’s gotten a fair amount of press attention, so I thought I would use it as a case study both of how the constitutional civil litigation process works, and of why most people have come to hate lawyers, especially ones like me. 

Let’s start at the beginning.  How do cases like this get started?  Well, like all cases they start with the filing of a document called a “Complaint,” which is a description of the dispute and a recitation of the factual and legal allegations by the Plaintiff against the Defendant(s).  Now, there is an old saw amongst lawyers that says, “in America you can sue anyone,” which, while technically true, isn’t really 100% accurate.  To file a “Complaint” in federal district court costs $450.00.  So, anyone who can pony up that money (or prove themselves indigent so that they qualify for a fee waiver) can indeed “sue” someone.  The ability to file a suit doesn’t ensure the Plaintiff that it is going to be heard, much less decided “on the merits.”  Federal Courts are known as courts of limited jurisdiction, meaning they only have the power to hear certain types of cases. (This is as opposed to some state courts, which are called courts of general jurisdiction, meaning they can hear any type of case.)  Accordingly, they have developed an entire body of law to prevent cases from proceeding (which we will talk about later).  For now, the first step is the filing of the Complaint.

In this case—initially filed in 2017, in the District Court for the District of Maryland, located in Beltsville, Maryland, just outside of Washington DC—the plaintiffs are the District of Columbia and the State of Maryland, who are suing the President of the United States in his official capacity alleging violations of the Emoluments Clauses of the Constitution.  Specifically, they allege that the President is violating both of the Emoluments Clauses of the U.S. Constitution by accepting prohibited “emoluments” from foreign and domestic governments. 

Just so everyone is on the same page:  The Foreign Emoluments Clause provides that:

 “No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.” U.S. Const., Art. I, § 9, cl. 8.

The Domestic Emoluments Clause provides:

The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be encreased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them.  U.S. Const., Art. II, § 1, cl. 7.

In their Complaint, Maryland and DC advance several theories about how the President is violating the Constitution, among them are the fact that the President continues to have a direct stake in his private hotel business, which includes the Trump International Hotel in Washington DC (the Hotel), located just blocks from the White House.  In addition, DC and Maryland claim that since the 2016 election, numerous foreign governments, and at least one State Government, have patronized the Hotel, some of whom have indicated that they have done so to curry favor with the President.  Similarly, it is alleged that some foreign governments have withdrawn business from other area hotels and transferring to the Hotel associated with the President.  Finally, it is alleged that goods and services at the Hotel have been marketed at a premium level since the election and that a portion of the proceeds, particularly expenditures by foreign governments, have been passed through to the President.

Standard practice in suits involving federal government official, such as the President, Vice President, federal agencies, Members of Congress, Senators, etc., is that the defendant(s) file what is known as a motion to dismiss.  Typically, motions to dismiss are attempts to demonstrate to the Judge that the case does not belong in court for purely legal reasons and/or that the case has no merit, meaning that no matter what the Plaintiff says or does, they cannot possibly prevail.  Motions to dismiss are frequently successful in federal courts, especially in suits naming elected officials.  Motions to dismiss rarely reach the “merits” of a dispute.  They do not usually require the Judge to determine whether what was alleged to have happened actually did, nor are they intended to resolve the factual questions of the dispute.  Usually, they are resolved on what we lawyers call procedural or “jurisdictional” grounds, in other words without any consideration of the underlying facts. 

Here, the Department of Justice (DOJ), on behalf of the President, moved to dismiss the complaint.  DOJ advanced two basic arguments against DC and Maryland.  First, as they almost always do, DOJ argued that the case was not eligible to be decided because DC and Maryland lack “standing to sue.”  Second, DOJ argued that, even if there was “standing,” the type of transactions involved were not “emoluments” as the word was understood at the time of the drafting and ratification of the Constitution.

A very quick explanation of the doctrine of standing.  First, contrary to some beliefs, standing is not a new requirement; rather, has existed since the adoption of the Constitution.  Basically, as mentioned above, federal courts are courts of limited jurisdiction, specifically, Article III of the Constitution sets forth the types of cases that can be heard and among those requirement is the one to exercise the judicial power of the United States there must be a “case or controversy.”  To establish that such a “case or controversy” exists, the Supreme Court, through literally hundreds of cases over its history, has developed law that requires parties bringing suits before federal judges to demonstrate that the Court has the authority to decide the dispute.  To establish “standing” a plaintiff must show that he/she has suffered (i) an “injury-in-fact,” (ii) that was caused by the defendant, and (iii) that the Court as the power to redress.  A lot of constitutional cases are resolved on standing grounds because the Supreme Court in recent decades has been raising the bar for demonstrating standing and, thereby, making it harder for cases to proceed.  Standing arguments were particularly well suited for this case because, as a result of some of these cases, it is notoriously difficult for States like Maryland (and for purposes of this discussion DC, which, while not a “State,” is treated like one in these instances) to establish the necessary elements, particularly injury in fact.

After considering the parties’ lengthy briefs and holding not one, but two, oral arguments, the district court issued two thorough opinions.  In the first opinion, the court denied the President’s motion to dismiss, in part, which effectively narrowed the case to claims related solely to the President’s alleged violations at the Trump International Hotel in Washington, D.C.  In its second opinion, the district court disagreed with DOJ’s view on what constitutes an “emolument,” holding that the type of transactions involved here qualified as emoluments under the Constitution.  The district court did not address whether the emoluments were lawful or not, nor whether what the President was doing was consistent with the Constitution.  Rather, the court simply addressed the arguments made by the parties, reserving the remaining legal questions for future proceedings.

So far, the above has followed the course of a pretty typical civil suit.  Now, here’s where things get interesting, and somewhat confusing.  Normally, when a district court denies a motion to dismiss, the case proceeds to what is known as “discovery.”  This is the fact gathering stage of civil litigation where the parties are required to exchange documents and question witnesses in preparation for a courtroom trial.  Think of images from movies of storage facilities full of documents that have never been organized.  In the TV and movies, the discovery phase is routinely skipped over and people are left with the impression that cases go from filing to trial in a matter of days or weeks.  The reality is quite the opposite.  Discovery is both time consuming and expensive.  It can last for years and, not infrequently, is where many cases are won and lost.  Constitutional cases usually don’t require as much discovery as say a product liability case or a environmental damages claim, but there are typically some records that need to be reviewed and a few people to depose.  Even in such cases, discovery can take months or even a year.  In this instance, the Plaintiffs were likely going to seek the detailed financial records for the Hotel and potentially other highly desirable business records related to the President.  The discovery process is likely to take time due to expected arguments over the production of many of these documents.

Cynically, as a way to avoid the mess of discovery, but also because they honestly believed that the district court’s decisions were wrong, DOJ took the unusual, but permissible, step of trying to appeal the partial denial of its motion to dismiss.  Normally, only “final” judgments, or judgements that resolve a case in its entirety can be appealed.  However, there is a way to get an appeal in the middle of a case.  These types of appeals are known as “interlocutory appeals” or “1292(b) appeals” are permitted by federal statute, 28 U.S.C. § 1292(b).  To get one, DOJ required both a certification from the district court judge and permission from the Court of Appeals.  DOJ sought an interlocutory appeal of four questions: (1) the correct interpretation of the term “emolument”; (2) whether DC and Maryland had an equitable cause of action to bring the suit; (3) whether DC and Maryland had Article III standing; and (4) whether any court has the ability to issue equitable relief against the President in these circumstances.

Somewhat predictably, the district court declined to certify an interlocutory appeal.  In part because interlocutory appeals are inefficient and rare, the standard a party must show to get one is high.  Given that its client is the United States, specifically the President and the Executive Branch, DOJ can usually satisfy the heightened standard, but not always.  Here, the district court concluded that resolution of the questions presented by the President did not satisfy the statutory prerequisites.  Having had its request denied by the district court, the case was once again primed to move to the discovery phase.    

Undeterred, likely fearing discovery, and presumably still convinced that the district court was wrong to deny its motion to dismiss, DOJ decided to bypass the district court altogether and deal directly with the Fourth Circuit Court of Appeals.  In an exceedingly rare move, DOJ asked the Court of Appeals to issue a writ of mandamus.  The writ of mandamus is one of the oldest writs in western jurisprudence.  Simply put, a writ of mandamus is order from a court to an inferior government official mandating that the government official either properly fulfill their official duties or correct an abuse of discretion.  Here, the appellate court would be ordering the inferior district court to correct its error.  Specifically, DOJ asked the Court of Appeals to order the district court either to certify an interlocutory appeal pursuant to 28 U.S.C. § 1292(b), or to reverse its decision on the motion to dismiss and find for the President, thereby ending the lawsuit.  

A three-judge panel of the Fourth Circuit Court of Appeals granted DOJ’s petition for a writ of mandamus and, purportedly exercising jurisdiction pursuant to § 1292(b), heard the interlocutory appeal.  In 2019, two years after the case was initially filed, a three-judge panel of the 4th Circuit found that DC and Maryland lacked standing and so “reverse[d] the district court’s orders” and “remand[ed] with instructions to dismiss the complaint with prejudice.”

The astute reader will say, now two years and 4 pages into this post, wait, what happened to the merits?  It’s true, in all of these proceedings, no judge has ruled on whether the President actually did what was alleged.  Did he actually violate the Constitution?  Are the profits from foreign governments actually “emoluments” prohibited by the Constitution?  If so, is the Hotel’s business really depriving DC and Maryland of tax revenues and other opportunities?  None of these questions have been decided, and the interesting and novel Constitutional questions remain unresolved. 

Moreover, we’re not done yet.  Disheartened by the panel’s decision, DC and Maryland still had options.  Specifically, they had two; appeal to the full Fourth Circuit Court of Appeals (known as “appealing en banc”), or appeal to the United States Supreme Court (known as a petition for a writ of certiorari or “seeking cert”).  DC and Maryland chose to appeal en banc, and the full Fourth Circuit agreed to hear the case earlier this year.

Last week, the full Fourth Circuit issued its opinion.  Somewhat surprisingly, the full (“en banc”) Court of Appeals, by vote of 9-6, reversed the panel’s decision and denied the writ of mandamus.  According to the en banc court, a party seeking mandamus relief must demonstrate that: (1) there are no other adequate means of obtaining the relief sought; (2) the right to issuance of the writ is clear and indisputable; and (3) the writ is appropriate under the circumstances.  Essentially, the en banc majority found that, in this case, none of the three requirements were satisfied.  As to the first, the majority found that there were other adequate means of obtaining relief; namely, the ordinary appellate process.  Writs of mandamus, according to the court, are not to be used as substitutes for the ordinary appeals process.  As for the second prong, issuance of a writ of mandamus is always discretionary with the appellate court and, thus, no clear and indisputable right to a writ exists.  Finally, as to the third prong, while cases involving the President potentially present more appropriate circumstances, particularly when the suit threatens to impair the ability of the President to execute his constitutional duties, and/or infringe on the Executive Branch’s ability to faithfully execute the laws, none of those concerns are present here.  Thus, the majority concluded that the writ was not appropriate under the circumstances. 

As you will note, the en banc court limited its decision to simply the question of whether the panel was correct in granting the writ of mandamus initially.  It did not take on any of the more interesting underlying questions about emoluments or constitutional violations.  Rather, in denying the writ, it effectively sends the case all the way back to the original district court, where, absent an appeal to the Supreme Court, discovery will once again commence.  So, now more than three years since the case was initially commenced, perhaps it will finally move to the next stage of the proceedings. 

This case is, in my opinion, an excellent example both of why constitutional law develops so slowly and why the few cases that do reach the Supreme Court each term acquires such outsized importance to our national jurisprudence.  Litigation, especially litigation involving constitutional rights and duties, frequently gets diverted by these seemingly mundane and esoteric procedural issues that have little to do with the substance underlying the actual dispute.  So, please read beneath the headlines, focus on the details not the summaries provided by the press.  Some of these cases are of the once-in-a-generation variety, and they are all part of the vast array of civic life that all people should, in my opinion, pay far more attention to and focus on.  Legal cases don’t decide elections, but they do “make law” in the sense that they set the precedent that will govern future disputes and may inform the decisions of our elected officials.

If there was a point to this post, it was to shed some light on the grueling process involved by high-profile, high-stakes constitutional cases.  Don’t get me wrong, cases like this are incredibly fascinating to work on and, win or lose, are extremely important.  Often, when I look back on some of the matters I’ve been involved in, I know that I played a small role in the making of constitutional law.  Some of these cases may even be read and reviewed by future law students (hopefully, positively), which provides a significant amount of personal and professional pride.  All that said, they can also be exasperating and frustrating, as they take a tremendous amount of time and effort and sometimes, they do not result in anything tangible.  Such is the path I’ve chosen.   I don’t honestly know who has the better of the legal arguments in the emoluments case that I’ve described.  The point wasn’t to discuss my opinion of the outcome, but to explain the process and hopefully give everyone a look behind the curtain at how at least one lawyer looks at these complex issues.  

Libertarian Populism

It’s been a while – has anything been happening in the world?

One of the difficulties with trying not to be a blog dedicated solely to reacting to the current events of the day is that it limits the type of subjects one feels comfortable writing about. Then, something happens within the context of current events that spark the blogging juices, so to speak. And that’s what happened when I came across this article on a site otherwise dedicated to energy news. It deals with Ammon Bundy, who you may remember from such standoffs with the feds as the Occupation of the Malheur National Wildlife Refuge. Bundy is back in the news, fighting the man and his clampdown on travel.

Bundy organized a public meeting in Emmett, Idaho, on Thursday night to rail against Republican Gov. Brad Little’s recent emergency declaration ordering the state’s residents to self-isolate at home, asserting the measure amounts to a violation of the Constitution’s Bill of Rights.

“I was hoping that Gov. Little would hold out, that he would see what was happening, that he would realize what is best for Idaho is not to freak out and act like, you know, [a] fearmonger,” Bundy said in video of the event recorded by attendees.

He later added: “The right to travel is not theirs to take. The right to assemble is not theirs to take. The right to worship how and where and when we want is not theirs to take. That’s the issue here.”

Bundy doesn’t deny that the virus threat is real, but does deny that it justifies the measures undertaken by the state and federal governments.

I’m not going to get into the legal arguments about the measures states have taken in response to the pandemic, though I am inclined to agree with the likes of David French and others who argue that the states in particular have abundant legal and constitutional authority in these circumstances. Rather, I want to discuss the general attitude struck by Bundy and others of a similar mindset. It occurs to me that he’s expressing what I can only describe as a sort of libertarian populism, or, more accurately, populist libertarianism.

It might make sense to take a step back. From the standpoint of a political theory 101 type course, libertarianism and populism are essentially opposites. To put it in the simplest and crudest terms possible, libertarians favor smaller government for both social and economic issues. Populists favor greater government intervention for both cultural and economic issues. Populists and libertarians thus occupy opposite quadrants of the typical political taxonomy. Therefore “populist libertarian” is as contradictory a term as “government intelligence” or “congenial Yankees fan.”

As is usually the case, things are a little more complex than this. Populist, in particular, is a rather malleable term. In today’s political environment it has become as nebulous a term as “neoconservative” became during the GWB years. Roughly speaking it describes political movements that appeal or try to appeal to the masses, and which rely on popular sentiment to justify mass shifts in policy. But all political movements in a democracy try to sway political opinion, and most at least pretend to base their platforms on mass appeal – thus why the authors of this blog are almost completely politically homeless.

The looser definition of populism can therefore be tied to libertarianism, and this is no more evident than in the political philosophy of – drumroll please – Thomas Jefferson. If anyone in American history can be called a populist libertarian it is Jefferson. Jefferson, more than any American of his time or since, wedded a belief in the wisdom (or really the potential wisdom of a rightly educated (and by rightly educated, I mean educated by the totally not propagandist ward republics)) of the populace with the sentiment that the government that governs best is the one that governs least.

Jefferson’s populist libertarian vision has redounded through the ages and has taken many forms. But when I see the likes of Bundy ranting about the evils of an oppressive government it’s not hard to see in his absolutism a rhetorical echo of Jefferson, who once wrote “the tree of liberty must be refreshed from time to time with the blood of patriots and tyrants.” Jefferson also wrote that a little rebellion now and then is a good thing.

The historian Conor Cruise O’Brien once suggested that the 20th century politician Jefferson would have most admired is Pol Pot, and I tend to think this is not much of an exaggeration. Jefferson’s writings are really infused with this high-minded libertarian rhetoric. While Jefferson was himself a soft-spoken man, his pen was a sharp cudgel.

I’m almost tempted to say that Jefferson should often be taken seriously but not literally, though that may be underestimating Jefferson’s commitment to what he saw as political liberty. So when an Ammon Bundy takes an almost literal sword out from its scabbard to defend what he perceives as threats to liberty, I think he’s genuinely trying to live up to Jefferson’s idealism. He believes he is defending the masses from an oppressive and intrusive government. The Bundys of the world see themselves as conquering heroes thwarting off the evil jackboot of the government. It they have to refresh the tree of liberty for the greater good, so be it.

Now perhaps I’m as guilty as those who threw around “neocon” so casually a decade ago in ascribing any of this to populism. Indeed, when authentic populism is – unfortunately – on the rise in America and elsewhere, it is tempting to attach it to anything one doesn’t like. Yet it’s the first thought that popped into my head as I read about Bundy’s latest threats, and it seems to me there is something connecting Bundy to Jefferson through a certain quirky strand of libertarianism that is a very destructive force.

Besides, when all else fails, just blame Thomas Jefferson is what I say.

The Last Impeachment

In 2002, Tom Petty and the Heartbreakers released a song called “The Last DJ,” which was a lamentation on the centralization of commercial radio stations and the elimination of independent voices that had the power to discover, launch—and yes, even destroy—a new band or song.  Instead, what Petty and the band saw was a once powerful voice in the creative space that was rock n’ roll radio being muted in favor of a corporately fashionable, advertising friendly radio that played songs not because they were “good” or even musically/lyrically interesting, but because they sold well.  In short, Petty’s lyrics lament the slow demise of an institution in favor of “mediocrity” and the almighty dollar.

As I’ve watched and read about the Senate trial of President Trump these past couple of weeks, it has been Petty’s song that I haven’t been able to stop from playing in my head.  What he was hearing on the radio, is what I have been watching on my television and reading in the news.  The slow and painful demise of a once great institution, Congress.  While Petty’s loss is itself lamentable (I haven’t listened to rock radio in at least 25 years), mine has the possibility to be catastrophic for our system of government and our Constitutional order.

For the purposes of this post, I ask that you the reader strip away the politics.  It doesn’t matter whether the Senate called witnesses or not, whether you think President Trump committed or didn’t commit acts worthy of impeachment and removal, what I want to talk about is bigger than one trial or one President, it’s what this one trial and one President may mean to the entire foundation of our constitutional republic.

The short-term consequences of the Senate trial were a foregone conclusion—Trump was always going to be acquitted by the Senate—but the long-term ramifications for our constitutional structure have yet to be written and I fear they are headed in a direction for which we will not recover.  If I’ve taken away anything from this process it is that there appear to be two fault lines in American politics that if not condemned, countermanded, and reversed immediately will be devastating for the future of the country.  I’ll take each in turn:

  1. Trump Has Solidified the Presidency as the Center of Our System of Government

Since the Constitutional Convention in 1787, there has always been a debate over which branch of the federal government was most powerful.  Some, like Madison and others, thought that Congress should and would emerge as the most powerful branch given its proximity to the people and the scope of powers granted to it by the Constitution itself.  And for periods of our history that has been the case.  Others, like Hamilton, believed in a strong and powerful President wielding executive power and dominating the American political landscape.  This has also proven to be true, especially in times of war and crisis; for example, Lincoln during the Civil War, FDR during WWII, George W. Bush after 9/11.  In my opinion, this debate was never intended to be resolved, rather it was to ebb and flow as events unfolded and the country required different political solutions to different situations.

What both sides of this debate have in common is that they have always respected and revered the checks that the Constitution provides both branches to keep them in balance.  The President can check the Congress by using the veto power to prevent legislation from becoming law, make use of the appointment power to place in powerful positions people he trusts to faithfully execute the laws enacted by Congress in a manner consistent with his vision and beliefs, and use the pardon power to check a runaway Judiciary from imposing unjust and unfair punishments for transgressions of federal law.   Congress on the other hand has the power of the purse, by which it can constrain and control the expenditure of funds by the President and his minions.  And critically, Congress has the sole power of impeachment and removal, carefully divided between the House (the sole power to impeach) and Senate (the sole power to try and remove), which was to serve as the ultimate check on the power of both the President and the Judiciary.

What we have seen over the last 20+ years is a slow and steady erosion of the constraints on the President and the Executive Branch generally.  No longer, for example, is Congress’s “power of the purse” an adequate check on the President.  Now, part of this is the fault of Congress, who has increasingly and consistently declined to utilize this power effectively.  Congress’s internal process for appropriating money has completely broken down and, consequently, it can only take two tacks, either it enacts massive government-wide (known as omnibus) appropriations bills after careful negotiation with the President to ensure that no veto will follow, or it shuts the government down in a game of chicken with the President that only causes harm to the millions of people and programs dependent on federal funds for salaries and other basic needs and the national economy, which drags when its government fails to perform its most elementary of tasks.  Either way, the President is in more control of this process than is the Congress and the result is an eroding of the guardrail between the branches envisioned by the drafters of the Constitution.

Now, with the second acquittal of a President in 21 years from impeachment allegations that were arguably weak (though technically/legally, the case against Trump was stronger), it appears that this power too has been neutered.  Reasonable people can debate whether Presidents Clinton and Trump deserved to be removed from office, but what has changed in the last 21 years is that now it appears that there is no longer consensus about whether President Trump should even have been impeached by the House.  The notion being floated by many is that impeachment is a tool that is only to be used in the direst of circumstances.  However, when pressed to describe the precise circumstances in which impeachment is appropriate, the answer is frequently unsatisfactory.  Most fall back on a very narrow reading of the Constitution’s text “treason, bribery, and other high crimes and misdemeanors,” without really understanding the origin and nature of that language.  Others insist on the demonstration of an actual criminal act that could be indicted and proven “beyond a reasonable doubt” before a jury in a criminal court.  While both these positions are useful if defending a President accused of impeachable offenses, they have the effect of reducing the power that impeachment has as a constraint on Presidential power.   In other words, there is a lot of wrong that a President could do before he or she commits treason, bribery, a high crime or misdemeanor, or even commits a federal crime as defined in federal law (Title 18 of the US Code).

To take but one example, assume that a President in a prior life was the inventor and head of a major drug company.  Further assume that the President, even having complied with all ethics and other disclosure laws, retains a strong and vested financial interest in the company and its product.  Assume even further that the President becomes convinced that an international competitor is a threat to that product and business.  Now, if the President uses official actions, say executive orders to the Department of Health and Human Services and/or FDA, or other official resources (criminal investigations, border searches, tariffs) to thwart that competitor’s standing in the market and even goes so far as to cause the competitor company to fail.  Problem?  Impeachable?  Go one further and assume that it is subsequently discovered that the President’s information was false and that the actions were all taken exclusively to preserve his sizeable investment and personal fortune.  No crime (felony or misdemeanor) was committed, the actions were not treasonous, there was no bribe, but the President clearly used official resources for personal gain.  Should the Congress impeach and remove?  According to one, not unreasonable reading of precedent, the answer is no.  If that’s right, then what kind of a constraint, if any, is the impeachment power?  If a hypothetical President can mobilize the entire executive apparatus to thwart a single company for personal gain without risk of his position, what exactly does impeachment prevent a President from doing?

It may be that the Framers intended a very strong President, but they did not intend an unchecked one.  The Presidency has become the undisputed center of the American political system.  More politicians aspire to be President than Speaker of the House, a Member of the Senate, a cabinet Secretary, and certainly a federal judge or Justice.  For most people, the only government official (high-ranking or otherwise) they can name is the President.  He is the most recognizable and arguably powerful person in the country, if not the world.  However, if the current Constitutional constraints on the job are ineffective, we need to consider creating others.  A President unconstrained by any system is a potentially a tyrant, and that is antithetical to the American way of government.

  1. The Current Impeachment Shows the Folly of the 17th Amendment

My disdain for the 17th Amendment (go ahead and Google it, I’ll wait)—that’s right, direct election of Senators by popular vote—has long been a personal hobby horse.  I have argued many times that it has had two disastrous effects:  First, it has destroyed the role that the Senate was supposed to play in our vertical federal system.  By that I mean that it prevents the Senate from representing the States, as was originally intended.  Second, it has dramatically weakened the role of State Legislatures, depriving them of one the main functions they were supposed to play in the American political system.  Case and point, how many readers can name their State Senator?  Game, set, match, Glaucon.

But what does this have to do with impeachment?  Good question.  Here’s my theory.  If I’m correct about the effects of the 17th Amendment as described above then you must ask, if the States and State Legislature are the losers, who was the winner?  My answer:  The President.  By turning the Senate into a popularity contest and steppingstone to the Presidency, there is now zero institutional incentive for the Senate to do anything than what we just saw it do; namely, run a procedurally deficient impeachment trial where the outcome was predetermined along political party lines.

Let me put it another way, agree or disagree with the outcome, from a purely Constitutional and institutional prospective the House acted precisely in the way it was designed.  As the chamber of Congress closest to the people, it did what most of the people believed correct, it impeached the President of the United States.  Sure, it did so on partisan grounds, but the House is a partisan political body that breaks down exactly the way the country currently breaks down, with a small majority supporting the opposite political party than the President.  Under the original Constitutional design, the Senate would be a reflection not of the popular will in the States, but of the will of the several States as determined by their State Legislatures, and likely would be constituted differently.  In other words, the Senate might be less political party partisan and more institutionally driven.  And even if its partisan political makeup were the same—53 Republicans, 45 Democrats, and 2 Independents—its incentives would be different, because the Senators would be answering to a different constituency, specifically, the States themselves.  I believe the result of this might have resulted in a more legitimate, less Presidential friendly, process.   Would this have changed the ultimate outcome?  I have no idea, but it would have been far better for the separation of powers and for the Constitution.

 

No, the Equal Rights Amendment Has Not Been Ratified

The Virginia legislature, taking a break from bludgeoning the Second Amendment, took up an old piece of business and ratified the Equal Rights Amendment, becoming the 38th state* to do so. Thus the 28th Amendment has been ratified.

Not so fast. There are a couple of reasons why this ultimately will go down as little more than an empty political gesture. First, and most importantly, Congress set an expiration data which originally expired in 1979, and then was extended to 1982. Ed Whelan makes a persuasive case that not even this original extension was lawful. Be that as it may, the 1982 deadline came and went without the requisite number of states to ratify.

Defenders of the ERA argued that Congress doesn’t have the ability to create a deadline for ratification, but there is nothing in the Constitution suggesting that this is improper, and Supreme Court jurisprudence has upheld this right. Also, pointing out that the 27th Amendment (originally the second of the twelve amendments that were submitted by Madison in the First Congress) was ratified two centuries after its original submission doesn’t work as a defense since this amendment was proposed with no deadline.

Really that’s the end of the argument. But there’s more. Five states rescinded their ratification in the 1970s, thus the actual number of states to have ratified stands at 33, short of the required number for ratification. The website for the Equal Rights Amendment (yes, there is one) makes a rather weak argument that once a state votes in favor of ratification (see question 6) it is forever locked in, as exemplified by the passage of the 14th Amendment and the actions of New Jersey and Ohio to rescind their vote. There’s nothing in the Constitution that would suggest that states cannot rescind approval prior to ratification and there’s little in the way of substantive precedent to go on (this law review article suggests that the actions of Congress around passage of the 14th Amendment were not treated as setting a precedent – see page 907). There is little precedent to go on, so it remains an open question how state rescission of approval would be treated by the courts.

From a moral or philosophical point of view, there are a few reasons the ERA should not be recognized as being ratified. There is something strange in the idea that a constitutional amendment could be proposed, fail to be ratified, then suddenly a few states bring it up again half a century later when much has changed, and then suddenly it becomes a part of the constitution. Yes, this is precisely what happened with the 27th Amendment, but I think it’s fair to state that though technically legal, it’s fairly absurd that a long dormant clause gets added to the constitution in an environment where no one is debating the issue.

There should be a broad consensus when a constitutional amendment is adopted. The Virginians who voted to approve the ERA are far removed from those who voted for adoption 50 years earlier. It can hardly be said that a few states voting now to ratify represent a consensus in favor of an amendment, especially as evidenced by the handful of states who manifestly expressed their second opinion. (And others likely would have voted to rescind their approval but likely thought the issue moot).

It also seems odd to suggest that there is a no backsie’s rule when a state gives its approval, but not when it renders disapproval, as several states originally did when the Constitution was originally ratified. Allowing states to rescind an Amendment once ratified would of course be chaotic and essentially serve as a form of nullification. But while an issue is being actively debated, it would seem that a state should retain the right to change its mind.

It might seem contradictory for a constitutional originalist to argue that changing circumstances justify opposition to the ERA being ratified nearly half a century after originally being proposed. After all, the Constitution itself is a 233 year old document, and we still live by its consensus. But it is precisely because the constitution is a sacrosanct document that binds political action for centuries that anything added to it should represent the broad will of the people at the time the amendment or clause is added. If changing circumstances or opinions lead to a state’s population changing its mind while there is still a live debate surrounding an amendment, then I think that state retains the right to reconsider before it essentially binds its hand in blood to the document.

Even if we count those states who later rescinded their approval, there remains the concrete legal point that the time limit expired a long time ago for ratification for the ERA. Both legally and morally it would be prudent to let it lapse. If supporters want to bring it back up, that’s fine. They’re just going to have to start at square one.

Congress And War Making

It gets a little wearying writing about how Congress is derelict in its duties and must assert its proper constitutional role, but there may be no area where Congress is as deficient as it is when it comes to foreign policy.

Kevin Williamson says it’s time to repeal the Iraq Authorization for Use of Military Force (AUMF), and I’m inclined to agree.

Congress has the power to remove any ambiguity in this matter, and it should.

The Iraq AUMF has been on the books since 2002, when it was enacted to empower the administration of George W. Bush to depose Iraqi dictator Saddam Hussein, who is long gone. It is supplemented by an earlier AUMF, passed shortly after 9/11, which authorized the U.S. government to go after those responsible for the attacks of that day and any “associated forces.” But the version of al-Qaeda responsible for 9/11 is long gone, too, even if the name lives on. Also gone is the principal actor behind the attack, Osama bin Laden, killed by U.S. forces and buried at sea. Conversely, the Tehran-backed militias (Kata’ib Hezbollah et al.) causing havoc in Iraq today — and killing Americans in the process — did not exist in 2001 or 2002. And if either AUMF was meant to include the Iranian state, then that certainly was not made explicit in the relevant texts.

That’s not to say they should be repealed and replaced with nothing.

We should forthrightly admit that the 2001 and 2002 authorizations have outlived their rationales, that both the organization behind 9/11 and the troublemaking regime of Saddam Hussein have been eliminated — mission accomplished, at last. But Saddam Hussein and Osama bin Laden were not the only threats in the world, nor the only threats emanating from the Middle East. Tehran is a problem. So is the rat’s nest of new terrorist outfits and regional militias that have sprung up after the vanquishing of al-Qaeda. The use of the 2001 and 2002 authorizations in the current military and political context is obviously pretextual, the barest little fig leaf to cover up the fact that Congress has abandoned its duties in the matter of war-making, delegating them to an increasingly imperial presidency.

. . . The 2001 and 2002 authorizations have served their purposes. They are open-ended enabling acts, and they should be repealed and replaced — if they must be replaced — with an instrument that is much more narrowly tailored and takes into account the current political and security realities, which are not what they were nearly 20 years ago. If the Democrats really believe that Donald Trump is a uniquely dangerous threat in the White House — morally unmoored and psychologically unstable, as many of them charge — then they should act on that belief and begin the process of tying his hands.

The foreign policy framework under which we operate is miles beyond what is prescribed by the constitution. But what’s frustrating is that it has been enabled by an act intended to rein in the imperial presidency. I am perhaps a minority of one on this, but I believe the War Powers Act is unconstitutional not because it strips too much power from the president, but rather it affords him too much. The idea that the president gets a 60-day free trial for war is a constitutional absurdity (kudos to David French and Sarah Isgur for coming up with that analogy on their podcast). In fact the WPA is constitutionally backwards because it allots to much power to the president in what should be a primarily Congressional function – declaring and making war – and then gives too much power to Congress in what should be a primarily Executive function – conducting war.

Be that as it may, it’s time for members of Congress to stop acting like whimpering wallflowers. Some Republican members of Congress moaned when Donald Trump rearranged troops and left the Kurds vulnerable, and now Democrats are complaining about the president’s actions with regards to Iran. They all act as though they are nothing but internet commenters who have no actual power or authority to, you know, do something about it.

As for the present circumstance, I do think the current AUMF did give the president the authority to act as he did. I don’t comment on the wisdom of the attack, nor do I offer any analysis of what will happen moving forward. I do think a repeal and replace (heh) of the Iraq AUMF is warranted. It can simultaneously restrict further action by narrowing the scope of the use of the force while actually freeing our ability to act by updating it to meet current needs.

But we all know that would require Congress to do something, so I won’t hold my breath.