One of the single biggest misconceptions about the commandeering doctrine that it is a direct application of the 10th Amendment. Indeed Judge Orrick’s decision in the Sanctuary City case repeatedly made this error. To the contrary, Justice Scalia explained in Part III.C of his opinion in Printz v. United States that commandeering is, at bottom, a limitation imposed by the Necessary and Proper Clause:
The dissent of course resorts to the last, best hope of those who defend ultra vires congressional action, the Necessary and Proper Clause. It reasons, post, at 941, that the power to regulate the sale of handguns under the Commerce Clause, coupled with the power to “make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers,” Art. I, § 8, conclusively establishes the Brady Act’s constitutional validity, because the Tenth Amendment imposes no limitations on the exercise of delegated powers but merely prohibits the exercise of powers “not delegated to the United States.” What destroys the dissent’s Necessary and Proper Clause argument, however, is not the Tenth Amendment but the Necessary and Proper Clause itself.[13]
[13] This argument also falsely presumes that the Tenth Amendment is the exclusive textual source of protection for principles of federalism. Our system of dual sovereignty is reflected in numerous constitutional provisions, see supra, at 919, and not only those, like the Tenth Amendment, that speak to the point explicitly. It is not at allunusual for our resolution of a significant constitutional question to rest upon reasonable implications. See, e. g., Myers v. United States, 272 U. S. 52 (1926) (finding by implication from Art. II, §§ 1, 2, that the President has the exclusive power to remove executive officers); Plaut v. Spendthrift Farm, Inc., 514 U. S. 211 (1995) (finding that Article III implies a lack of congressional power to set aside final judgments).
When a “La[w] . . . for carrying into Execution” 924*924 the Commerce Clause violates the principle of state sovereignty reflected in the various constitutional provisions we mentioned earlier, supra, at 919, it is not a “La[w] . . . proper for carrying into Execution the Commerce Clause,” and is thus, in the words of The Federalist, “merely [an] ac[t] of usurpation” which “deserve[s] to be treated as such.” The Federalist No. 33, at 204 (A. Hamilton). See Lawson & Granger, The “Proper” Scope of Federal Power: A Jurisdictional Interpretation of the Sweeping Clause, 43 Duke L. J. 267, 297-326, 330-333 (1993). We in fact answered the dissent’s Necessary and Proper Clause argument in New York: “[E]ven where Congress has the authority under the Constitution to pass laws requiring or prohibiting certain acts, it lacks the power directly to compel the States to require or prohibit those acts. . . . [T]he Commerce Clause, for example, authorizes Congress to regulate interstate commerce directly; it does not authorize Congress to regulate state governments’ regulation of interstate commerce.” 505 U. S., at 166.
Chief Justice Roberts would revisit this discussion of “proper” in NFIB v. Sebelius.
As our jurisprudence under the Necessary and Proper Clause has developed, we have been very deferential to Congress’s determination that a regulation is “necessary.” We have thus upheld laws that are “‘convenient, or useful’ or ‘conducive’ to the authority’s ‘beneficial exercise.'” Comstock, 560 U. S., at ___ (slip op., at 5) (quoting McCul-loch, supra, at 413, 418). But we have also carried out our responsibility to declare unconstitutional those laws that undermine the structure of government established by the Constitution. Such laws, which are not “consist[ent] with the letter and spirit of the constitution,” McCulloch, supra, at 421, are not “proper [means] for carrying into Execution” Congress’s enumerated powers. Rather, they are, “in the words of The Federalist, ‘merely acts of usurpation’ which ‘deserve to be treated as such.'” Printz v. United States, 521 U. S. 898, 924 (1997) (alterations omitted) (quoting The Federalist No. 33, at 204 (A. Hamilton)); see also New York, 505 U. S., at 177; Comstock, supra, at ___ (slip op., at 5) (KENNEDY, J., concurring in judgment) (“[*560] It is of fundamental importance to consider whether essential attributes of state sovereignty are compromised by the assertion of federal power under the Necessary and Proper Clause . . .”).
…
No longer would Congress be limited to regulating under the Commerce Clause those who by some preexisting activity bring themselves within the sphere of federal regulation. Instead, Congress could reach beyond the natural limit of its authority and draw within its regulatory scope those who otherwise would be outside of it. Even if the individual mandate is “necessary” to the Act’s insurance reforms, such an expansion of federal power is not a “proper” means for making those reforms effective.
The Chief’s opinion here is somewhat opaque, but Justice Ginsburg’s dissent explains precisely what is at issue.
THE CHIEF JUSTICE cites only two cases in which this Court concluded that a federal statute impermissibly transgressed the Constitution’s boundary between state and federal authority: Printz v. United States, 521 U. S. 898 (1997), and New York v. United States, 505 U. S. 144 (1992). See ante, at 29. The statutes at issue in both cases, however, compelled state officials to act on the Federal Government’s behalf. 521 U. S., at 925-933 (holding unconstitutional a statute obligating state law enforcement officers to implement a federal gun-control law); New York, 505 U. S., at 176-177 (striking down a statute requiring state legislators to pass regulations pursuant to Congress’ instructions). “[Federal] laws conscripting state officers,” the Court reasoned, “violate state sovereignty and are thus not in accord with the Constitution.” Printz, 521 U. S., at 925, 935; New York, 505 U. S., at 176.
The minimum coverage provision, in contrast, acts “directly upon individuals, without employing the States as intermediaries.” New York, 505 U. S., at 164. The provision is thus entirely consistent with the Constitution’s design. See Printz, 521 U. S., at 920 (“[T]he Framers explicitly chose a Constitution that confers upon Congress the power to regulate individuals, not States.” (internal quotation marks omitted)).
New York v. United States involved commandeering of the states (through their legislators). Printz v. United States involved commandeering of state officials. The individual mandate in NFIB v. Sebelius involved what Randy Barnett referred to as the commandeering of the people.
Why is this relevant? The Court’s commandeering doctrine is premised on assessing the constitutionality of acts of Congress. However, with respect to the sanctuary city litigation, not all of the claims are premised on the validity of 8 U.S.C. 1373. Consider if the federal action came exclusively from an executive order, pursuant to Article II powers. That is, the President orders a state to provide his administration with some form of information, citing his Commander-in-Chief powers. Here, the necessary and proper clause would not be implicated. For the action to the unconstitutional, it would have to be based on the Tenth Amendment, standing by itself.
This analysis has shades of the facts of Medellin–wherein President Bush ordered Texas to comply with the Vienna Convention–though the Court resolved the issue based on the fact that the treaty was not self-executing. Indeed, the Tenth Amendment is mentioned nowhere in the decision.
This fact likely should not change the outcome of the cases, but courts should flag the fact that they are making new precedents with respect to executive-branch commandeering.
The final week in April was fairly quiet, but the media heated red hot after oral arguments in IRAP v. Trump and the Comey firing. Here are all of my media hits, commentary, and events over the past three weeks.
Josh Blackman, a professor at South Texas College of Law, Houston, noted that there is some uncertainty about whether Trump’s account is accurate. Assuming it is, Blackman said, it is not a clear-cut case. One the one hand, he said, the FBI typically does not tell potential targets whether they are under investigation. On the other hand, the president is the director’s boss, he added.
“It’s a really tricky question about whether this is appropriate,” he said.
Blackman pointed to a much-scrutinized statement by then-President Barack Obama in April last year that he knew Clinton “would never intentionally put America in any kind of jeopardy.” Critics saw it as evidence that Obama was trying to influence the investigation.
“There’s not really a clear line on that,” Blcakman said.
Blackman said that if Trump did, indeed, ask Comey on three separate occasions about the investigation, the director could have refused to answer. And he could have gone public if he felt that Trump was acting in an improper way, Blackman said.
“He’s shown no hesitation to hold press conferences to make a fuss,” he said.
Opponents of Trump’s revised travel ban have cited that 2015 press release, still visible in the president’s tweet from the day it was issued, as evidence of his discriminatory intentions. For the campaign to take it down just before a court hearing appeared conspicuous to some attorneys following the cases, but keeping it up undercut the government’s arguments that the travel ban is not based on religion.
“Damned if you do, damned if you don’t,” said South Texas College of Law professor Josh Blackman of the statement’s removal. . . .
Blackman said he hopes the question of what happened to the statement does come up in the Ninth Circuit arguments, if only to point out what he believes is unfounded outrage over its removal.
“This entire line of cases is insane,” Blackman said. “The entire nature of the question answers itself: this is not something courts should be doing.”
Even before the dismissal of James Comey, who oversaw the FBI’s probe into links between Donald Trump’s campaign and Russia, many Democrats were dissatisfied with the various inquiries already in train. Since Mr Comey went, two solutions have been energetically pressed. One is a special or independent prosecutor. Under a law passed after the Watergate scandal, to boost the credibility of those scrutinising the executive, appointments such as Mr Starr’s were made by a panel of judges; the prosecutors had the authority to bring charges. Quite often they did not. Nevertheless, both political parties came to believe that the arrangement invested too much power in one person, who could use it to wage a remorseless campaign. “People have short memories,” observes Josh Blackman, of South Texas College of Law, of the yen for a similar fix today.
The act, which has since expired, also has the added benefit of being blessed in 1988 by the Supreme Court, in Morrison v. Olson.
But constitutional law professor Josh Blackman, of South Texas College of Law Houston said it’s unlikely that the current Supreme Court would uphold a similar statute today.
Justice Antonin Scalia’s lone dissent in Morrison argued that the independent counsel provisions violated separation of powers principles. Separation of powers concerns frequently “come before the Court clad, so to speak, in sheep’s clothing: the potential of the asserted principle to effect important change in the equilibrium of power is not immediately evident, and must be discerned by a careful and perceptive analysis,” Scalia said.
“But this wolf comes as a wolf,” he memorably concluded.
Scalia’s dissent has “stood the test of time,” Blackman told Bloomberg BNA in an email. . . .
But the majority opinion in Morrison is thought of much differently today than it was when it was first handed down, Rappaport said.
Indeed, in 2015, Justice Elena Kagan called Scalia’s dissent “one of the greatest dissents ever written,” Blackman noted.
People thought an independent counsel was good government following the Watergate scandal, Rappaport said. But attitudes began to change after politically motivated high-profile investigations, he said.
“Ken Starr’s witch hunt, which began with Whitewater and wound up with (Monica) Lewinsky, proved Justice Scalia correct,” Blackman said, referring to investigations of President Bill Clinton.
Has the firing of James Comey precipitated a constitutional crisis? The day after the firing, law professors began a vigorous debate. At Politico, the ACLU’s legal director, David Cole, said that a constitutional crisis is at hand because “Anytime a sitting president fires the person responsible for investigating his campaigns potential criminal activities, it is a matter of grave public concern. When that criminal investigation involves collaboration with Russia to undermine the U.S. democratic process, it’s a constitutional crisis.” In the same symposium, Josh Blackman of the South Texas College of Law disagreed, arguing that “under the Constitution, the president has the absolute power to fire principal officers, such as Director Comey, at will. In that sense, Trump’s actions were entirely constitutional.” In a follow-up podcast debate, Cole argued that a constitutional crisis occurs any time the presidents attempts to subvert a basic constitutional norm, such as the rule of law; Blackman countered that to qualify as a constitutional crisis, the president’s actions have to violate the Constitution itself.
The Boston Globe reported last week that Trump has been sued 134 times in federal court since taking office, nearly three times as many as his three predecessors.
Josh Blackman, a constitutional law professor at the South Texas College of Law in Houston, noted that the use of litigation to pursue political ends has become so common it’s been given the name “lawfare.”
“Frankly we’re seeing a continuation of what we saw during the Obama administration,” Blackman said.
“People turn to the courts when they lose the ballot box, and that’s what we have here.”
Josh Blackman, associate professor of law at the South Texas College of Law in Houston, with a specialty in constitutional law and the U.S. Supreme Court:
“The actions are perfectly constitutional. What happens next is up to the political process. Congress can investigate as it sees fit, and use whatever remedies, up to impeachment, it deems necessary.”
On his personal blog, Blackman detailed the crucial difference between Trump’s firing of Comey and the so-called “Saturday Night Massacre” in 1973, when President Richard Nixon pushed for the firing of a special prosecutor investigating the Watergate break-in:
“Further, for those drawing analogies to the Saturday Evening Massacre, recall that Nixon never actually fired anyone himself. Instead, he had to ask a subordinate to fire the special prosecutor for cause. Comey was fired by the President, directly, at will (though plenty of causes were given).”
“‘Under the Constitution,” noted South Texas College of Law professor Josh Blackman, “the president has the absolute power to fire principal officers, such as Director Comey, at will. In that sense, Trump’s actions were entirely constitutional.”
Guest on The Tommy Tucker Show, WWL AM870 New Orleans, to discuss Trump’s firing of Comey (May 10, 2017).
Josh Blackman, a conservative and noted constitutional law professor at the South Texas College of Law, explains on his blog that there is no question Trump had the authority to fire Comey. He notes that, under the Constitution, the President has absolute power to fire “principal officers” like the FBI Director, and notes the firing was accompanied by “fairly elaborate reasons” from the Deputy Attorney General.
Since Trump has the legal authority to dismiss the head of the FBI for a good reason, a bad reason, a transparently insincere reason, or no reason at all, talk of a constitutional crisis is more than a little premature. “Under the Constitution,” notes South Texas College of Law professor Josh Blackman, “the president has the absolute power to fire principal officers, such as Director Comey, at will. In that sense, Trump’s actions were entirely constitutional.”
Politico has posted a symposium on the ramifications of the firing of FBI Director James Comey, and whether it counts as a “constitutional crisis.” It includes contributions by a variety of legal scholars. Participants include, Josh Blackman, Sanford Levinson, Sai Prakash, Geoffrey Stone, Cass Sunstein, and others.
Blackman goes on to argue that nothing in the provision Yates cited prohibits the government from revoking visas based on nationality. Further, he points out that according to the language of the statute, “The general policy is that visas should be issued without concern for nationality. But when the secretary deems it necessary (perhaps for national security concerns), he can adopt procedures for issuing visas based on nationality.”
Importantly, the statute Yates cited doesn’t even cover the whole breadth of Trump’s executive order. Blackman notes that 1152 only applies to “immigrant visas.” Refugees and anyone applying for a non-immigrant visa cannot lay claim to this statute whatsoever.
In short, as Josh Blackman has noted, passage in the House of the AHCA can be impugned on precisely the same grounds for which Republicans pilloried Democrats in passing the Affordable Care Act in 2010.
As Josh Blackman noted here, the myriad variables at work in those cases customarily require greater flexibility for the political branches. In a case on religious displays demonstrating the judicial deference that characterizes Establishment Clause challenges to federal action, the Supreme Court in Salazar v. Buono (2010) found that a blatantly religious symbol—a cross—was almost certainly intended by Congress not as a promotion of religion but as a commemoration of Americans killed in World War I. In reaching this conclusion, the Court saw no need to refer to each of Lemon’s three prongs. Focusing on the first prong, secular purpose, was sufficient.
Guest on The Michael Berry to discuss testimony of Sally Yates and IRAP v. Trump, AM740 KTRH Houston (May 8, 2017) (Audio, Post).
Four days before the injunction, the Justice Department sent letters to nine jurisdictions requesting validation of compliance with federal immigration laws or risk grant money. There would be no nationwide injunction had the administration simply sent out the letters instead of Trump issuing an executive order, said Josh Blackman, a professor at the South Texas College of Law in Houston.
And there’s a parallel to the Trump administration’s ban on U.S. entry for refugees and certain immigrants and travelers from Muslim-majority nations, Blackman wrote on his blog. Federal judges have stopped implementation of the travel ban as well, and cited the comments of Trump and administration officials in their orders.
“Had President Trump quietly instructed his State Department officials to quietly put on hold any visa application from these countries, and to suspend specific visas of individuals from these nations, without the dramatic flare of an executive order, there would not have been a nationwide injunction,” Blackman wrote.
The algorithm was developed by researchers at the Illinois Institute of Technology in Chicago, and South Texas College of Law. They used the US Supreme Court Database, which holds information on court cases dating back to 1791. Based on this data, the algorithm could correctly predict 70.2 per cent of the court’s 28,000 decisions, and 71.9 per cent of the justices’ 240,000 votes from 1816 to 2015.
“The perennial proposal of breaking up the 9th Circuit would have zero impact on the current litigation,” Josh Blackman, a South Texas College of Law professor, told the Examiner.
For each year from 1816 to 2015, the team created a machine-learning statistical model called a random forest. It looked at all prior years and found associations between case features and decision outcomes. Decision outcomes included whether the court reversed a lower court’s decision and how each justice voted. The model then looked at the features of each case for that year and predicted decision outcomes. Finally, the algorithm was fed information about the outcomes, which allowed it to update its strategy and move on to the next year.
From 1816 until 2015, the algorithm correctly predicted 70.2% of the court’s 28,000 decisions and 71.9% of the justices’ 240,000 votes, the authors report in PLOS ONE. That bests the popular betting strategy of “always guess reverse,” which has been the case in 63% of Supreme Court cases over the last 35 terms. It’s also better than another strategy that uses rulings from the previous 10 years to automatically go with a “reverse” or an “affirm” prediction. Even knowledgeable legal experts are only about 66% accurate at predicting cases, the 2004 study found. “Every time we’ve kept score, it hasn’t been a terribly pretty picture for humans,” says the study’s lead author, Daniel Katz, a law professor at Illinois Institute of Technology in Chicago.
Roger Guimerà, a physicist at Rovira i Virgili University in Tarragona, Spain, and lead author of the 2011 study, says the new algorithm “is rigorous and well done.” Andrew Martin, a political scientist at the University of Michigan in Ann Arbor and an author of the 2004 study, commends the new team for producing an algorithm that works well over 2 centuries. “They’re curating really large data sets and using state-of-the-art methods,” he says. “That’s scientifically really important.”
Josh Blackman, a South Texas College of Law professor and conservative, does not think breaking up the circuit is likely to happen and does not think it would make much of a difference if it did.
“This perennial proposal of breaking up the 9th Circuit would have zero impact on the current litigation,” Blackman said in an email. “Even if the 9th Circuit was split up (which it won’t be), the judges on these two new courts would be the same. It wouldn’t make much of a difference. The only way an impact could be made is if the president was able to create new judgeships in these states, but due to the blue slip policy, it is unlikely Trump could get anyone confirmed.”
In Josh Blackman’s excellent meditation on this subject in Politico, he warns judges not to treat Trump differently than they would treat other presidents. I agree. And that means when Trump says things about his policy goals, presumably to bolster or refine or undermine his sloppy legal orders, they have some legal force. The alternative is a jurisprudential Escher staircase of meaningless words on paper, in an unending shifting dialogue of meaningless presidential words that shift from bird to fish and back again.
Both sides have shown remarkable dexterity in their understanding of the law, abruptly switching positions on issues like whether states have standing to sue, whether individual federal judges may issue nationwide injunctions and whether a federal threat to withhold funds can amount to a constitutional violation.
Josh Blackman, a law professor at South Texas College of Law, said Democratic officials should strive for more consistency, even if only as a matter of self-interest. “Whatever California can do to resist immigration law,” Professor Blackman said, “Texas can do to resist environmental laws.” . . .
As a senator, Mr. Sessions cheered that ruling, saying it was “an injunction that stopped the Obama administration from proceeding with its lawless immigration system.”
Both sides have been flexible in their understanding of the applicable legal principles, Professor Blackman said.
“With respect to nationwide injunctions,” he said, “blue state attorney generals are relying on arguments they expressly opposed during the Obama administration.”
Now, there’s an open question as to whether Section 1373 is itself unconstitutional “commandeering” of state officials (as Josh Blackman details). That is, while the federal government cannot force state officials to enforce federal law, is it constitutionally proper for it to tell states and cities that they can’t direct their officials not to exchange information with federal authorities? (Sorry for the double negative, but that’s what the issue actually is.)
Earlier today I recorded a Podcast for the National Constitution Center with Jeffrey Rosen and David Cole. The topic was whether the firing of Comey created a “constitutional crisis.” My short answer was No. A constitutional crisis requires, at a minimum, that there must be a violation of the Constitution. Trump was entirely within his authority to remove Comey at will. He didn’t even need to give causes. That he gave causes, which are probably pretextual, is irrelevant. Cole didn’t disagree with any of this, but suggested that there are certain foundational or democratic norms that were violated by Trump’s firing.
As I was listening to his answers, I had flashbacks to debates last year over whether the Senate had a constitutional duty to give Merrick Garland a vote. Once again, my short answer was No. The President has the duty to nominate judges to the Supreme Court, and the Senate can exercise its advise and consent however it sees fit. If the Senate, pursuant to its own rules, decides not to afford a nominee a hearing or vote, such that it expires at the end of the term, then that is the Senate’s advice and consent. Last year a New Mexico lawyer actually filed a lawsuit, seeking to force the Senate GOP to act of Garland’s nomination. He claimed that the Republicans had “created a constitutional crisis that threatens the balance and separation of power among our three branches of government.” Again, there can be no constitutional crisis when the Constitution is not being violated.
As Jack Balkin and Sanford Levinson noted in a 2009 article, the phrase “crisis” is overused, and is at risk of losing any meaning:
The difficulty, however, is that the language of crisis is ubiquitous, applied to controversies great and small. There is hardly a disagreement in American law, however slight, that someone will not label a “constitutional crisis.” . . .
An important 2002 article by Keith Whittington noted that almost three thousand articles in the press used “constitutional crisis” in reference either to the impeachment of Bill Clinton (1026 articles) or to the controversy surrounding the 2000 election (1901 articles).
…
People have evoked the expression “constitutional crisis” so often that it is in danger of becoming synonymous with almost any deeply felt sense of conflict or urgency, as illustrated by Chief Justice Roberts’s plaintive cry that he deserves a higher salary. Perhaps it has become no more than a marker of emotional intensity, the equivalent of pounding the table and marking one’s degree of upset about some state of affairs in the world.
My answers so far have been negative–what a “constitutional crisis” is not. Then what is a constitutional crisis? For sure, it has to involve a violation of the Constitution, but that is not enough. The Supreme Court finds every term that this action or that law violates the Constitution. And it isn’t even enough when Congress and the President disagree about the constitutionality of some action. In that case, the appointments at issue in Noel Canning would have triggered a “constitutional crisis.” It didn’t. Balkin and Levinson observe:
People generally use the term “constitutional crisis” to describe periods when institutions of government are clearly in conflict. But the mere existence of conflict, even profound conflict, cannot be the definition of crisis. Government institutions are always in conflict. Every year the Supreme Court hears cases, and the losers usually proclaim that the Court has grievously overstepped its boundaries.
Likewise, Balkin and Levinson find (as do I) that the firing of Archibald Cox was a “political crisis” rather than a “constitutional one.” If Justice Scalia’s dissent in Morrison v. Olson was correct (and I think it was) then Robert Bork was correct that he could fire Cox, even without cause. Not even impeachment, they argue, amounts to a constitutional crisis, because the House and Senate are using “procedures specifically written into the Constitution.” They are right. Nor does Bush v. Gore, they write, rise to the level of a constitutional crisis because “Al Gore almost immediately treated the Supreme Court decision as juridically valid” and Bush’s inauguration “took place without serious incident.” Right again.
Balkin and Levinson offer a framework to understand constitutional crises. It is a very, very high threshold:
We argue that a constitutional crisis refers to a turning point in the health and history of a constitutional order, and we identify three different types of constitutional crises. The first two types were identified by Machiavelli in the quotation that begins this Article. Type one crises arise when political leaders believe that exigencies require public violation of the Constitution. Type two crises are situations where fidelity to constitutional forms leads to ruin or disaster. Type three crises involve situations where publicly articulated disagreements about the Constitution lead political actors to engage in extraordinary forms of protest beyond mere legal disagreements and political protests: people take to the streets, armies mobilize, and brute force is used or threatened in order to prevail. If a central purpose of constitutions is to make politics possible, constitutional crises mark moments when constitutions threaten to fail at this task.
They offer these examples of “type three” crises:
(1) the 1800 election stalemate, which began as a type two crisis because of the poor design of the presidential election rules and became a type three crisis when various states threatened to march their militias to Washington to settle the matter; it was resolved by Jefferson’s election;119
(2) the battle over the “tariff of abominations” that produced nullification resolutions in South Carolina, resolved by Andrew Jackson’s military threats and the passage of a compromise tariff that allowed South Carolina to back down;120
(3) the 1860-1861 secession crisis that led to and was resolved by the Civil War (itself a constitutional crisis);121
(4) the 1865-1868 struggle over Reconstruction, which involved expulsion of southern senators and representatives, military governorship of the South, and impeachment of Andrew Johnson, resolved by Johnson’s acquittal and his acquiescence in the ratification of the Fourteenth Amendment;122
(5) the 1868-1876 struggle over Reconstruction, which featured the successful violent insurgency of the Ku Klux Klan and similar devotees of the ostensibly defeated Old Order and the disputed 1876 presidential election; it was resolved by the appointment of an election commission, and more importantly, by the “Compromise of 1877” that led to the restoration of white rule;123 and
(6) the Little Rock crisis of 1957, resolved by the dispatch of federal troops to integrate the Little Rock schools.124
Note that Johnson’s impeachment arose from his removal of Secretary of War Edwin Stanton. Congress asserted that he needed the Senate’s permission to remove him.
The firing of Comey, by itself, doesn’t even come close to meeting these thresholds. For starters, the action does not violate the Constitution. Trump was well within his powers to terminate a principal officer, at will. Second, the firing by itself, will not lead to ruin of our Republic. The Senate retains a role in confirming Comey’s successor, and can hold hearings and investigations into Trump. Third, there is in no sense a violent opposition in the streets. Angry tweets do not count.
You may or may not agree with Balkin and Levinson’s framework, but at a minimum it offers a way to think about the issue facing us. The Republic will survive James Comey’s unemployment. Indeed, Republicans and Democrats alike agree that the FBI is better off without Comey. The Constitution was complied with. Our institutions retain able to check Trump. And this too shall pass.
Yesterday, thirteen judges of the Fourth Circuit sitting en banc heard argument in IRAP v. Trump. Acting Solicitor General Jeffrey Wall handled with aplomb an hour of blistering questions from about seven or eight judges on the red-hot panel. Omar Jadwat, arguing for the ACLU, also faced an hour of questions, though only two or three judges seemed to challenge his position.
This post will highlight five of the government’s leading arguments: (1) that the court should apply a “presumption of regularity” to this case; (2) that because of Trump’s oath of office, courts should discount prior statements made on the campaign trail; (3) that when Trump said “we all know what that means,” he was not referring to the Muslim ban; (4) that Lemonand McCreary Countyshould be cabined as “domestic” Establishment Clause cases; and (5) the impact of a ruling against this President would be to bind future Presidents.
By far, this was the strongest case yet for the U.S. government, and it offers a preview of the sorts of arguments the a majority of the Justices will likely find far more compelling than the majority of the Fourth Circuit.
“Presumption of Regularity”
The defining theme in the government’s presentation was urging the court to apply a “presumption of regularity.” As the government noted in its opening brief:
Under the Constitution’s structure and its separation of powers, courts evaluating a presidential policy directive should not second-guess the President’s stated purpose by looking beyond the policy’s text and operation. The “presumption of regularity” that attaches to all federal officials’ actions, United States v. Chem. Found., Inc., 272 U.S. 1, 14-15 (1926), applies with the utmost force to the President himself.
By my count, Wall repeated this phrase at least four times. In this clip, Judge Floyd asks “if there is anything other than willful blindness that would prevent us from getting behind those statements.” Wall responds, “Respect for the head of a coordinate branch, and a presumption that officials act legally, which is to say, the ‘presumption of regularity.’” Chief Judge Gregory interjects, and asks about whether that presumption prevents courts from assessing the constitutionality of actions. Wall replies that it does not, but that the “only thing” plaintiffs have is to “reach back” to “what was in the President’s head.” He admits there are “different ways to read those [political] statements,” but insists that “respect for a coordinate branch and a ‘presumption of regularity’ require reading them in a way that is not most hostile to the President, but would render the actions lawful.”
Judge Wynn says that, far from regularity, with respect to President Trump “we are in uncharted territories.” In response, Wall counters that the district court’s opinion was in fact “unprecedented.”
How should courts handle the “uncharted territories” of the Trump administration? Specifically, should courts afford Trump less deference because of his outlandish behavior? Recently, law professor Dawn Johnsen provided a guide:
Trump’s extraordinary—indeed, unprecedented— behavior more generally means that he is not due the deference traditionally afforded presidents. I feel confident that we all are hearing and thinking a great deal about Trump’s attacks on the courts and individual judges and his numerous false statements, including many about national security that reflect and foster prejudice and hate.
It is time to ask: Has Trump in effect forfeited some measure of judicial deference across contexts and cases, through his disrespect for the courts and the rule of law and his displays of prejudice and arbitrary decisionmaking? And if he has not yet reached that point, what more would it take?
Johnsen explains why the “presumption of regularity” ought not to apply to Trump:
Courts attend to reality and context, and they can and should adapt their screens of deference when circumstances so indicate. Again, the deference courts traditionally afford presidents is premised in part on the plausibility of some basic assumptions that typically go without saying, but that increasingly are implausible in the case of President Trump: that the president’s decisions reflect a respect for the rule of law, are informed by relevant advisors and information, are based in fact, and are in service of the public interest. Through his own actions across issues and in ways without precedent, Trump has eroded the plausibility of belief in even minimal versions of these traditional safeguards against executive action based on bad motive and arbitrary factors. To the contrary, Trump has evidenced a profound disrespect for the judiciary and the rule of law, has repeatedly told us that animus and improper motive infect at least some of his decisions, and often has misled or misstated facts to the public.
Examples are legion and widely known. Just a few: Trump’s false claim that President Obama used our national security apparatus to spy on him illegally (52 percent of Republicans believe that “the Obama administration intentionally spied on Trump and members of his campaign during the 2016 election campaign.”). Trump’s statements attacking the courts and individual judges, including suggesting that judges should be blamed for future violence and putting our country in peril. Trump’s numerous extreme, in some cases blatantly false, anti-Muslim statements. Trump’s irresponsible failure to take seriously financial conflicts of interests. Russian interference in our democracy.
I appreciate Johnsen’s candor, as she admits what the ACLU and other Attorneys General tap-dance around. She is openly asking courts to consider a litany of political grievances to determine that Trump is not entitled to the usual deference other Presidents have been afforded. Remarkably, Johnsen offered this counsel to a bevy of district and circuit judges of Indiana, Illinois, and Wisconsin during the Seventh Circuit Judicial Conference. This was an open invitation for the jurists in the room to join the resistance.
Even on these terms, I take exception to Johnsen’s rubric. As I discussed in my recent post, All the President’s Lawyers, Trump’s Twitter bark has no bite:
This pattern—where the President blows smoke up Twitter but his lawyers nudge him to act normally—has repeated itself over and over again. Why is this pattern relevant? Because all of the court decisions I mentioned above were premised on the President’s threatened, uninformed bluster, rather than the executive branch’s actual, informed actions. I admit it is somewhat disjointing to separate the President from the executive branch, but for better or (mostly) worse, such is the first four months of the Trump era. The bark is much worse than the bite. Indeed, the bark has no bite. It is all hot air. Rather than treating Trump’s tweets as existential threats to the rule of law, take them for what they are: uninformed rantings with zero legal effect. I’m sure lawyers within the administration would prefer the President stayed quiet, but that is not who he is. And fortunately, for the rule of law, what happens on Twitter stays on Twitter. Recognizing the fecklessness of Trump’s barbs should give courts pause before elevating his social media over actual policy statements.
In any event, the judiciary did not need Johnsen’s engraved invitation to join the resistance. The sorts of injunctions that have been entered by judges in Washington, Hawaii, and Maryland are premised on analyses never before seen in the Federal Reporter. These jurists figured it out without the nudging of the professoriate.
This sort of analysis will suffice for the inferior courts, but will have a short shelf life. I strongly doubt the Supreme Court will wade into such muddy waters. Can you imagine five Justices assessing the necessary level of “Russian interference in our democracy” before jettisoning the “presumption of regularity” as applied to President Trump’s executive actions?
“The Oath”
As a means to discount statements made by Trump prior to the inauguration, the Acting Solicitor General puts great weight in the oath of office. In contrast to Ben Wittes and Quinta Jurecic’s argument that Trump cannot possibly comply with his oath of office (a point I alluded to last year), the government contends that the oath transformed Trump—a constitutional baptism if you will—and thus earlier campaign-trail statements are off limits.
Consider this excerpt from the government’s brief:
Virtually all of the President’s statements on which the district court relied were made before he assumed office— before he took the prescribed oath to “preserve, protect and defend the Constitution,” U.S. Const. art. II, § 1, cl. 8. Taking that oath marks a profound transition from private life to the Nation’s highest public office, and manifests the singular responsibility and independent authority to protect the welfare of the Nation that the Constitution necessarily reposes in the Office of the President. Virtually all of the statements also preceded the President’s formation of a new Administration, including Cabinet-level officials who recommended adopting the Order.
In this clip, the Solicitor General explains that since various political statements were made on the campaign trail, “we had some pretty constitutionally significant events here. The President was elected. He took an oath to uphold the Constitution. He formed a government. He consulted with his administration.” Judge Motz interjects that “that doesn’t give him the right to violate the Establishment Clause.” Wall replies, these events “should color the way we reach back at and look at previous statements before he was an elected official, before he faced the demands of government, before he consulted with an administration, and he took an oath that allowed him to occupy the nation’s highest office.” After this point, Wall returns to his earlier argument, and explained “out of respect, and the ‘presumption of regularity,’” we “don’t give the President the least charitable interpretation of what he said, we give it the most reasonable interpretation in order to render the executive order lawful.”
Wall closes with the most important point: the order, he said, “shouldn’t drift in and out of constitutionality based on what we think was in the head of the President that issued it.” Again, this drove home the theme that Trump should not be treated any differently than other Presidents. Indeed, during appellees’ time at the podium, the ACLU had to concede that had a President Clinton the same exact order, it would be constitutional. The legality of the order should not fluctuate based on “the President that issued it.”
“We all know what that means”
Because a few judges seemed persuaded by the oath argument, the colloquies focus at great length on six words uttered by the President when he signed the initial executive order on January 27, 2017: “We all know what that means.” Brief after brief has quoted this sentence as the silver bullet to prove that Trump was in fact enacting his secret Muslim ban. SG Wall conceded that this was the “best statement” in the record to support the plaintiffs’ case. Recall that President Clinton’s presidency nearly unraveled over the meaning of “is.” Now, could President Trump’s travel ban hinge on the meaning of “that”?
Before argument in the Fourth Circuit, I had never bothered to watch the signing ceremony in its entirety. I simply presumed the attorneys who were citing it in their briefs provided the full context. I was woefully mistaken. For lawyers who live in transcripts, context matters. Watch the entire thirteen-minute clip, and reassess your reading of “that.”
Here’s the set-up. President Trump and Vice President Pence arrive at the Hall of Heroes in the Pentagon, in a room full of high-ranking DOD officials.
First, Pence issues the oath of office to Mattis, wherein the former General pledges to “support and defend the Constitution of the United States against all enemies, foreign and domestic.” Mattis thanks the President and Vice President, and says that Trump has “made clear his strong commitment to national defense.”
Starting at the 5:00 minute mark, Trump takes the mic, and praises Mattis and the military.
At 7:34, Trump introduces the first of two executive orders he will soon sign:
We are in awe of their valor— tremendous valor, and we pledge our dedication to every single family serving our country and our flag. That is why today I am signing two executive actions to ensure the sacrifices of our military are supported by the actions of our government, and they will always be supported by the actions of our government. Believe me. First I’m signing an executive action to begin a great rebuilding of the Armed Services of the United States, developing a plan for new planes, new ships, new resources, and new tools for our men and women in uniform. And I’m very proud to be doing that. As we prepare our budget request or Congress —and I think Congress is going to be very happy to see it. Our military strength will be questioned by no one, but neither will our dedication to peace. We do want peace.
I’ve emphasized the word that to illustrate how Trump uses that word. Here, that refers to building the military to protect the homeland.
At 8:35, he introduces the second executive order, which is at issue in the litigation:
Secondly, I’m establishing new vetting measures to keep radical Islamic terrorists out of the United States of America. We don’t want them here. We want to ensure that we are not admitting into our country the very threats our soldiers are fighting overseas. We only want to admit those into our country who will support our country and love deeply our people. We will never forget the lessons of 9/11 nor the heroes who lost at the Pentagon. They were the best of us. We will honor them not only with our words, but with our actions, and that’s what we’re doing today. I am privileged to be here with you and I promise that our administration will always have your back. We will always be with you. And I just want to thank you very much.
What is the purpose of his second executive order? “To keep radical Islamic terrorists out of the United States of America.” That is what that refers to.
After thanking General Mattis again, at 10:50, Trump sits down at the desk to sign the first executive order:
OK. So, this is the rebuilding of the United States armed forces. That’s a big one. [Inaudible, though I think he pointed to someone in the audience, and said “It is so nice to see you.”] That’s a big statement, isn’t it, the rebuilding. Doesn’t that sound good? It’s been a while. Too long. Secretary Mattis.
Once again, I emphasized the word “that.” And again, he is referring back to the title of the executive order, not some super-secret purpose.
A few moments later, at 11:40, he picks up the second executive order, and squints at it. He reads the title: “This is the ‘Protection of the nation from foreign terrorist entry into the United States.’” For those snoots who seek to hold the President to grammatical certainty, he didn’t even read the title correctly. It is, “Protecting the Nation from Foreign Terrorist Entry into the United States.” Looking up from the order, he says, “We all know what that means.” He repeats the title again. “Protection of the nation from foreign terrorist entry into the United States.” He adds, “That’s big stuff.” He then signs the order.
Once again, he uses the word that to refer to the title of the order. For the first order, he said “that’s a big statement.” For the second order, he said “that’s big stuff.”
Moments later, the ceremony concludes. Trump says, “I want to thank everyone. Many great heroes, many great warriors. We have tremendous respect for you all.” The room bursts into a round of applause, as the President shakes hands with the new Secretary of Defense.
It is painfully obvious what Trump meant by “that.” Speaking in the Pentagon, after swearing in his Secretary of Defense, with the Vice President standing over his shoulder, the President was speaking about “keep[ing] radical Islamic terrorists out of the United States of America.” The premise that the President’s use of “that,” was a wink and a nod to bigotry is an illustration of motivated reasoning.
To make this point even more explicitly, the Secretary of Defense had just taken an oath to support and defend the Constitution, as did the Vice President, as did every officer in the room. It was broadcasted on live television. Does anyone plausibly think that anyone in that room could have conceivably thought the President was secretly signaling an outright ban on Muslims? It absolutely strains credulity. Under McCreary County (which I do not think even applies), this remark passes the “objective observer” test with flying colors. An objective observer could not possibly look at this ceremony as a whole and, on the basis of the word that, connect the initial executive order to Trump’s campaign promise in 2015. The proverbial missing link is simply missing.
Perhaps Trump, secretly, harbored this animus, and used a turn of phrase that no one else recognized. If that is so, then Justice Souter’s analysis about “secret motive” in McCreary is even more on point:
Nor is there any indication that the enquiry is rigged in practice to finding a religious purpose dominant every time a case is filed. In the past, the test has not been fatal very often, presumably because government does not generally act unconstitutionally, with the predominant purpose of advancing religion. That said, one consequence of the corollary that Establishment Clause analysis does not look to the veiled psyche of government officers could be that in some of the cases in which establishment complaints failed, savvy officials had disguised their religious intent so cleverly that the objective observer just missed it. But that is no reason for great constitutional concern. If someone in the government hides religious motive so well that the “`objective observer, acquainted with the text, legislative history, and implementation of the statute,'” Santa Fe, 530 U. S., at 308 (quoting Wallace, supra, at 76 (O’Connor, J., concurring in judgment)), cannot see it, then without something more the government does not make a divisive announcement that in itself amounts to taking religious sides. A secret motive stirs up no strife and does nothing to make outsiders of nonadherents, and it suffices to wait and see whether such government action turns out to have (as it may even be likely to have) the illegitimate effect of advancing religion.
Such an action could still fail the Lemon test if it has “the illegitimate effect of advancing religion,” but here, the purpose prong—the strongest part of the plaintiffs’ case—is off the table. They have to rely on its effect. As the Solicitor General aptly noted during argument, any official action taken towards one of those six countries would have a disproportionate effect on Muslims. For example, designating Syria or Iran a state sponsor or terror deprived the country, and thereby its residents—an overwhelming majority of which are Muslims—of a host of benefits. The plaintiffs need the purpose prong to prevail, hence the surplusage of amicus briefs imploring Justice Kennedy to find an improper animus behind the action.
In truth, this episode is little more than a Rorschach Test for the resistance. The signing ceremony was not an elegy for Pepe the frog. The commander in chief is standing in front of a room of America’s finest, pledges to help them protect the homeland, and signs the order. Only the most hostile, jaundiced viewer of such an uplifting ceremony could possibly think President Trump’s use of “that” was some sort of bigoted dog whistle to the alt right. Perhaps this argument passes for acceptable fare on MSNBC, but judges should, as Justice Scalia suggested, hide their head in a bag if their opinion hangs on this gossamer thread.
If you think my take is too sharp, consider the explanation of the Acting Solicitor General, who offered this measured response at 43:20 of the argument:
When he looked at the title of the order, which is projecting us from foreign terrorist countries, and said ‘we all know what this [sic] means,’ the reasonable reading is not the one the plaintiffs give to it, it is the President was talking about countries and groups that may intend to do us harm. And certainly in the face of ambiguity over what the Commander in Chief and head of the executive branch meant by an offhand six-word statement, this court ought to I think take that statement not at its least reasonable, not at its least permissible, but in a way that it was in accord with what the president and advisers had been talking about for months, which was terrorism.
That is, a pause on immigration from certain terror-prone regions. Not a Muslim ban.
“Domestic Establishment Clause”
In March, I wrote at some length that courts should hesitate before applying run-of-the-mill Establishment Clause cases like Lemon and McCreary County to the foreign policy context. Particularly in the context of immigration law, which routinely classifies aliens based on religious factors, there is reason to doubt that these precedents are even applicable. SG Wall advanced this point at least three times during argument labelling those cases “domestic Establishment Clause” precedents. The brief provides, citing dissental from the Ninth Circuit, that these cases are simply inapplicable:
Third, the Establishment Clause precedents that the district court applied in disregard of [Kleindienst v.] Mandel—addressing domestic questions involving local religious displays, school subsidies, and the like—have no proper application to foreign- policy, national-security, and immigration judgments of the President. The district court offered no justification for exporting McCreary County v. ACLU, 545 U.S. 844 (2005), and Lemon v. Kurtzman, 403 U.S. 602 (1971), to this context. The “unreasoned assumption that courts should simply plop Establishment Clause cases from the domestic context over to the foreign affairs context ignores the realities of our world.” Washington Bybee Dissent 8 n.6. Indeed, the court’s reasoning would appear to extend to “every foreign policy decision made by the political branches, including our dealings with various theocracies across the globe.” Washington Kozinski Dissent 3 n.2. This Court should reject such extensive “intrusion of the judicial power into foreign affairs” committed to the political branches. Id.
The government does not go quite as far as to conclude that Lemon has no application beyond the border, as I do. It takes the safer, more moderate position that Mandel generally applies, unless the bad faith exception from Justice Kennedy’s Din concurrence is triggered. (For reasons I discuss here, Din is not triggered by the travel ban).
The domesticization of the Establishment Clause is a particularly compelling argument that so far only dissents have given attention to. However, when this matter arrives at the Supreme Court, I fully expect several Justices to be attuned to this issue. If the Establishment Clause applies with full force to foreign policy decision, many other aspects of immigration law—such as special visas for “the vocation of a minister ministers”—are now constitutionally suspect. The Justices will make more than a fleeting effort to fit this case into the broader doctrine of federal law.
“Constitutional Moment”
SG Wall’s prepared closing statement is a preview of the sort of argument that will be made to the Supreme Court:
The last thing, if I could say this, the order before this court has been the subject of a heated and passionate political debate, but the precedent set by this case for this court’s role in reviewing the president’s power at the borders will long transcend this debate and this order and this constitutional moment. In cases like this one, which is such intense feelings on both debate and this order and this constitutional moment. Sides, we would respectfully submit it is all the more important to apply the usual rules and interpretation and injunctive relief. We respectfully cement that that debate should be where it belongs in the political arena and this injunction should be vacated. Thank you.
Here, Dawn Johnsen’s conclusion is especially relevant:
And in order not to jeopardize executive power more generally and for other presidents in contexts where deference will remain appropriate and important, courts should take care not to downplay or sanitize facts peculiar to Trump that specially shift burdens and diminish the deference due.
The resistance seeks to gerrymander whatever precedents it sets here to constrain Trump, while leaving President Elizabeth Warren unfettered. That’s not how constitutional law works.
It is true that Trump consistently disrupts all political norms. The courts should not respond in kind by disrupting judicial norms. Trump’s presidency will come to an end sooner or later. But the precedents set during this period will linger far, far longer.
On December 24, 2009, 60 Democratic Senators approved a version of the Affordable Care Act. It was never meant to be the final version of the bill; rather, the purpose was to pass something so the House of Representatives could continue the process. Then the unexpected happened. Scott Brown, a Republican, won a surprise victory in the special election to replace Senator Ted Kennedy. Now, without a 60-vote filibuster-proof majority, the Senate would be unable to vote on a bill that returned from the House in the normal manner.
As I discuss in Unraveled, this dilemma forced Democrats to go down the budget-reconciliation route:
With Brown’s surprise victory, the road to the ACA took a sharp detour. Former Senate majority leader Tom Daschle (D-SD), who served as a close adviser to the White House, wrote that on election night, “the health care reform effort seemed to collapse. Obama and the Democrats in Congress had been on the verge of making history, and they were closing in on the finish line. Now, the finish line had vanished.” 30 Massachusetts, the home of the original Tea Party in 1773, had nearly empowered the modern Tea Party to dump Obamacare into the Potomac. Now, the Republicans would be able to filibuster the bill if there was another Senate vote. “The talks suddenly took on a greater sense of urgency,” Daschle recalled. 31
Although Senator Reid and his colleagues did not intend the Christmas Eve roll call to be the final vote they would take, the bill could not return to the Senate floor. If they tried, the forty-one vote GOP caucus would kill it with a filibuster. The much-ballyhooed conference was now out of the question. “I’m looking at the possibility of losing my sixtieth vote,” President Obama told top House and Senate Democrats. 32 “Can’t you work this out,” the commander in chief implored his caucus. Steven Brill recounted that at a January 22 dinner, Justice Antonin Scalia was seated next to Ezekiel Emanuel, who was the brother of White House Chief of Staff Rahm Emanuel, and an adviser on the pending health care reform. 33 “Scalia kidded Emanuel about the apparent collapse of Obamacare,” Brill wrote. “Zeke offered to bet him that they would get Obama’s reform package through, somehow.” 34 The gregarious justice would have been wise to decline the odds. Obamacare would not be stopped so easily. Speaker Nancy Pelosi (D-CA) devised a parliamentary strategy to salvage the process: The House would vote on the Senate bill, and then a separate reconciliation bill, in such a way as to avoid sending it back for a full Senate vote. Through the reconciliation process, the reconciliation bill could pass the Senate with only fifty-one, rather than sixty votes. Critically, there would be no conference. Because of Brown’s election, and the loss of a filibuster-proof majority, the New York Times observed, “a back-room conference, where changes could be considered in private, never happened.” 35 The House would pass the Senate bill, along with a separate act containing a number of “fixes” that remedied the problems House Democrats had with the Senate bill.
There was a cost to passing the ACA through reconciliation in 2010; it could be repealed in the same fashion, with only 51 votes in the Senate, in 2012. Many on the Romney transition team had a reconciliation bill ready for day #1. Alas, it was not meant to be. But now, with a 51-vote bloc in the Senate, and a majority in the House, the Republicans can kill Obamacare without a single Democratic vote.
Pelosi, Obama, Biden, and others who chose this route can complain all they want, but can do nothing to stop it. This is awful governance, but is enabled because of the shortcut they took in 2010.
Update: Allow me to clarify the above post. Republicans could use reconciliation in 2009, whether or not the Democrats used reconciliation in 2010. Rather, the decision to use the budget reconciliation in 2009 to enact something as wide-ranging as health care reform, that was not primarily about budget deficit reduction, set a new precedent. And that precedent can be relied upon by Republicans today.