Day: January 18, 2017

New in National Review: “How the States Can Help Trump Make Federalism Great Again”

Almost immediately after the election, progressive states that have cheerfully supported every manner of Barrack Obama’s incursions into federalism, flipped on dime. Now, California wants to become the new Texas–like orange is the new black–and rely on the principles of federalism to protect their sanctuary cities. What is Texas, and other likeminded states to do? Sit on the sidelines and laugh? Fall in line behind the Trump Administration? I argue they should help the cause of federalism, wherever it appeals, and hope to lock in precedents for a future administration that will be hostile to the states.

My latest piece in National Review is titled (with just the right degree of click-bait): “How the States Can Help Trump Make Federalism Great Again

Here is the introduction:

Over the last eight years, more than two dozen state attorneys general have mustered a veritable legal army to thwart the unconstitutional overreach of the Obama presidency. With the change in administrations, however, these elite forces should not disband, but rather must retool. If the Trump White House is to succeed in restoring constitutional governance, it will need the support, cooperation, and sometimes pressure from the states.

In the short term, state attorneys general can coordinate with the incoming Justice Department to identify the cases and appeals that should be dismissed or settled. Further, these legal officers should roadmap how Congress and the president can rescind unlawful executive actions. Going forward, when progressive states seek to resist federal incursions, conservative states should consider supporting the principles underlying those cases: state capitols, and not the central government, should decide local matters. Precedents set during this period will, in the long run, entrench the separation of powers, and ultimately promote individual liberty.

And the conclusion:

I am not Pollyannaish. It is easy enough for a law professor to extoll the value of federalism, but on the ground, elected attorneys general may face a backlash if they actively challenge the Trump administration in court. Three important values should guide this important decision. First, Donald Trump will only be president for the next four to eight years. Sooner, rather than later, a progressive will be in the White House. The precedents that are established now will serve as a check on the havoc a President Elizabeth Warren cold unleash on the states. Second, there is a powerful value to gaining buy-in from the liberal justices — especially those who will serve for decades to come — for the principles of federalism. True, Justices Kagan or Sotomayor may be able to distinguish California’s present challenges with Texas’s future challenges — but the feebleness of those flip-flops will be visible to all.

Finally, and most importantly, state officials take an oath to the Constitution, not to the Republican party. They bear the unique responsibility for enforcing the Tenth Amendment, in all of its dimensions: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” The mission of reining in the federal government’s powers, and restoring the Constitution’s separation of powers, should continue for the next four years, eight years, and beyond.

I hope this generates food for thought. The elite legal teams built up by Republican Attorneys General still have an important mission to help restore constitutional governance, even if the Trump Administration is not willing.

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Interview on Fault Lines – “Cross: Josh Blackman, a Fearless Constitutional Contrarian”

On this blog I go out of my way not to write about myself. I don’t think my personal story is particularly interesting, nor do I think it is relevant to understand my perspective on the law. Yet, for reasons only he knows, Scott Greenfield asked me to sit down for a (virtual) cross-examination on the Mimesis Fault Lines blog. The questions are fairly involved, and inquire about my path from college to law school to clerking to teaching. For readers who would like to learn more about me, please go through the cross, with the provocative title, “Cross: Josh Blackman, a Fearless Constitutional Contrarian”

Even worse is Scott’s tweet:

Perhaps most relevant to this blog’s usual audience is the penultimate question, which touches on concerns of academic freedom:

Q. An issue that we’ve talked about in the past, but has returned (did it ever go away?) with a vengeance is academics using their cachet as scholars to promote their political agendas without regard to any “search for the truth.” Indeed, it’s quite the opposite, that some are deliberately promoting false understanding of law to serve a goal for which a faithful representation of law presents a problem.

How big an issue is this in the academy? Do prawfs recognize it but not care? Is there any movement within law schools to call out those academics who abuse their credentials for their cause? Are there liberal prawfs who are disturbed by this happening? Are they willing to speak out, to admonish their colleagues not to take advantage of their scholarly credibility to achieve a political goal? If not, what’s become of intellectual honesty in academia?

A. Professors hold a very special place of trust with the public. When we write something, it has a different significance than when a non-professor writes the exact same thing. Unlike attorneys who represent clients (and thus have a vested interest), and even think-tankers (who are often nudged in a certain direction), professors are given academic freedom to pursue the truth wherever it goes. If we forsake that trust, our words become worthless.

I recently wrote critically of a letter signed by 1,400 law professors opposing the confirmation of Senator Jeff Sessions as Attorney General. As a threshold matter, the letter had no meaningful legal analysis—it recited hackneyed talking points, which were of contestable veracity. Further, of the 1,400 professors who signed it, maybe a couple were actually involved in writing it. Would any professor put their name on a law review article they did not write? More specifically, one of the claims in the letter referenced Senator Sessions’ record over the past three decades. Did any of them review his entire record over this period. Of course not! (I doubt any Senate staffers did either). How they could put their signature to this letter boggles my mind. I will use all of my efforts to explain to professors why putting their names on these letters, to which they did not contribute, exploits their credibility.

In any event, NBC News and the Washington Post wrote favorable stories about the letter. I wrote a letter to the editor of the Post (which was not published), questioning why this non-legal analysis was in the least newsworthy. (It wasn’t).  Ultimately, the letter served its purpose. Senator Feinstein of California, the ranking member of the judiciary committee, referenced the letter during her opening statement, as if it would give a single Senator a reason to oppose Sessions. (It didn’t).


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