Blog

In June, I acquired a Christmas card sent from the family of Chief Justice Earl Warren. As I noted in the post, I could not figure out exactly when it was mailed.

 

Due to the wonders of the internet, Chief Justice Warren’s grandson, Jeffrey Earl Warren emailed me. (In the cartoon, he is wearing red pajamas, with his bottom showing, on the second sled). With his permission, I post this message:

Saw your note on Papa Warren’s Christmas Card. Doubt it was sent from the Court.  Papa Warren was appointed by Ike in ’53.  I was born in ’48.  My brother Jocko, was born in ’50.  He would have been on the card.  I was 5 when Papa Warren was appointed.  My father, James Cleveland drew the card.  He was an amateur artist who worked in an Ad agency at the time.  The card was sent out when Papa Warren was Governor.  I’m the one in the back with his backside showing and the red colored pj’s.

The card was sent in this envelope with SCOTUS letterhead.

Jeffrey doubted it was sent from the Court:

Papa Warren would not have sent out old Christmas cards, nor do I think he sent out cards when he was on the bench–that would have smacked of politics and self-promotion. My guess is that the recipient got a letter or something else from the court and kept the Christmas card in that envelope.  The card would not have been sent in an “Industrial” envelope like that.  Too business like.

In all likelihood, the card was sent in 1949–after Jeffrey was born in January 1948, but before Jocko was born in 1950–and long before Warren was appointed to SCOTUS. There you go.

This email goes in my #ConstitutionalPlaces hall of fame, alongside my correspondences with Homer Plessy’s great-great grandson about Plessy v. Fergusson, and calls with the granddaughter of the plaintiff in United States v. Carolene Products.

To round out this week of announcements, I will be publishing in the Cato Supreme Court Review an imagined opinion of what Justice Scalia would have written in U.S. v. Texas. Keeping with Cato’s tradition, I will not publish a draft before publication date on September 15 (this year Constitution Day falls on a Saturday). I will give you this tease from the introduction:

I write separately to address the “stark” constitutional questions that arise when the “Federal Government . . . does not want to enforce the immigration laws as written.” Arizona, 132 S.Ct. at 2521 (Scalia, J., dissenting). Historically, the Take Care Clause of the Constitution has been cited to bolster the executive’s power to act. However, here the problem is not of a “vigorous” and “energetic Executive,” The Federalist No. 70 (A. Hamilton), but of a passive one. Through DAPA, the Secretary of Homeland Security has suspended a law Congress refuses to change, in violation of the President’s duty of faithful execution.

As Professors attempt to conjure up insane situations where a constitutional crisis mandates that we ignore the Constitution, we should not forget that, once again, the Framers gave us a much more elegant solution: the electoral college. A Republican elector of Georgia’s electoral college has indicated that he may not be able to vote for Trump, even if the Donald wins the Peach State. Would this be anti-democratic? Absolutely, and that’s the point.

Contrary to what you may have been taught in school, we do not have a democracy. After the Revolution, the Founders soured on the democratic governments in their 13 states, so they replaced the Articles of Confederation with a new “republican” form of government, which would better secure the individual rights of the people. To prevent the government from violating our rights, power was divided in various ways to block the power of democratic majorities. One of the most poignant examples of this buffer was the electoral college.

Voters do not actually vote for the President. When millions of Americans go to the ballot box in November, they are actually voting for delegates, who will meet in the electoral college, to determine who should receive that state’s electoral votes. In recent years, the meeting of the electoral college has been a formality, as delegates would always vote based on who won the popular vote in the state (with the exception of Maine and Nebraska which award votes proportionally). But this was not the framer’s design: Originally, delegates were not only allowed to, but indeed were expected to vote differently than the will of the people to prevent a person unfit for the Presidency from assuming the office.

Long before he was a Broadway superstar, Alexander Hamilton forcefully defended the anti-democratic features of the electoral college in Federalist No. 68. Publius explained that it was “desirable that the sense of the people should operate in the choice,” but the ultimate decision of who should select the Chief Magistrate should fall to a group of “men chosen by the people for the special purpose.” These individuals, buffered from the vicissitudes of the populace, would be “most capable of analyzing the qualities adapted to the station,” and most likely to “possess the information and discernment requisite to such complicated investigations.” Such a process, Hamilton wrote, “affords a moral certainty, that the office of President will never fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications.”

To paraphrase Lin-Manuel Miranda’s rendition of the $10 founding father, the electoral college does not throw away its shot. Simply stated, the people by themselves could not be completely trusted, and the electoral college exists to prevent the selection of a demagogue as the Commander in Chief. If this republicanism is too jarring for Mr. Trump, he should read James Madison’s Federalist No. 10, perhaps the most important essay in American political theory–or at least surround himself with the “best people” who have studied it. Madison wrote that the greatest good of government is to guard against the risk of factions–even those supported by a majority–for such a movement “enables it to sacrifice to its ruling passion or interest both the public good and the rights of other citizens.” In short, under democratic republicanism, there is nothing stopping a majority of the polity from engaging in self-dealing at the expense of the minority. Alexis de Tocqueville later dubbed this the “tyranny of the majority.”

What Madison and his allies in Philadelphia decided was that we needed a new republican form of government that would address the weakness of the too-democratic state constitutions, while preserving the notion of popular sovereignty. Madison believed that “to secure the public good and private rights against the danger of such a faction, and at the same time to preserve the spirit and the form of popular government, is then the great object to which our inquiries are directed.” Our anti-democratic electoral college is a manifestation of Madison’s inquiry.

The framers viewed the delegates sent to attend the electoral college as a check, to ensure that a demagogue–even someone who achieved a majority in the popular vote–would not be selected as President. This is still (in large measure) the law today. According to FairVote, 29 states bind their electors to vote for the candidate that won the popular vote. But 21 states do not. In 2012, the AP reported that 5 Republican “rogue” electors would vote for Ron Paul over Mitt Romney.

No matter how often constitutional crises arise, I am always struck that the framers provide an exit hatch. As I noted in my Harvard Law Review piece, if the Senate won’t confirm any nominees, the President can adjourn the Senate and make a recess appointment. There’s usually an answer baked in somewhere.

To give you a sense of what will be in Unraveled, here is the table of contents. (If you pre-order the book, I will mail you a free autographed book plate.). Those who followed the ACA closely can probably figure out what is in each chapter based on its title.

 

 

In March, the Florida International Law Review hosted a symposium on the Separation of Powers. It was a stellar lineup, including David Bernstein, Ron Rotunda, Lee Strang, Brannon Denning, Jon Adler, and Michael Ramsey. My contribution, Government by Blog Post, is now available on SSRN. Here is the abstract.

During the implementation of the Affordable Care Act, President Obama repeatedly turned to this all-too-familiar pattern of executive action. First, the impact of the Affordable Care Act made certain groups worse off. Second, as a result, Congress was pressured to modify the law to alleviate these negative externalities from the law. However, Democrats feared that Republicans would seize the opportunity to unravel other portions of the law. This halted any possible bipartisan support for legislative amendments. Third, in the face of this gridlock, President Obama turned to executive action to alter the ACA’s onerous mandates. Specifically, he delayed and suspended the individual and employer mandates, as well as modified provisions affecting benefits for Congressional employees and coverage in the U.S. territories.

Each of these executive actions—implemented through formal notice-and-comment rulemaking or informal social-media blogging—came as a complete surprise. Each change posed risks to the long-term sustainability of the law. Each change relied on tenuous readings of the statute, and dubious assertions of executive authority to accomplish ends entirely at odds with what Congress designed. Each action was contested in court by states and private parties. However, because the executive actions had the effect of lifting burdens, rather than imposing any injuries, the government vigorously contested that no one had standing to bring suit. As a result, the ultimate legality of these moves was decided not by the courts, but by the President, who desperately acted alone to salvage his signature law.

One of the more disconcerting aspects of the law’s implementation, beyond the numerous delays and waivers, has been the cavalier approach by which the government announced these changes. It soon became a painful pastime of ferreting through these massive document dumps and attempting to find the actual basis for the rule previously announced in the blog post. And invariably, the policy, as stated in the blog post, doesn’t quite match up what is in the rule. This was no longer a government of law, but a government by blog post.

This article was part of a symposium on the separation of powers hosted by the Florida International University Law Review.