Balkinization  

Tuesday, December 06, 2016

What the New Majority Will Do – And How They Will Do It

Guest Blogger

David Super


     This is my third of three posts on congressional procedure.  As explained in my previous post, reconciliation provides a ready vehicle for congressional Republicans to enact a radical fiscal agenda with bare majority support in both houses.  Every indication is that today’s Republicans will follow essentially the same script that worked so well for their predecessors under President Reagan, Speaker Gingrich, and President George W. Bush:  first, pass huge, budget-busting tax cuts tilted heavily to upper-income people that are only partially paid for with cuts in programs aiding low-income people, then decry the resulting deficits and cite those to justify additional cuts in anti-poverty and human services programs (with the support of newly reawakened “deficit hawks” who slumbered through the passage of the tax legislation but now demand “shared sacrifice” to deal with the resulting “national emergency” of large structural deficits). 

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Monday, December 05, 2016

How Reconciliation Works: What it Can and Cannot Do

Guest Blogger

David Super


     After President Reagan demonstrated the enormous, underappreciated power of reconciliation to pass unpopular legislation, the Senate imposed stricter constraints on what reconciliation bills could contain.  These limits are likely to prove crucial in coming legislative battles.  This post, the second of three, explores in depth the rules governing reconciliation.  The first post offered an overview of congressional procedure; the third considers how congressional Republicans can leverage their procedural advantages to enact much of their program. 

     Most of the limits on reconciliation legislation are enforceable with points of order that require sixty votes to overcome.  In other words, provisions violating these limits that could not muster the sixty votes to defeat a filibuster cannot evade a filibuster by moving through reconciliation.  That being said, senators routinely reach agreements not to raise valid points of order.  For example, when a reconciliation bill’s sponsors might plausibly be able to garner sixty votes to waive a particular point of order, opponents may agree to a modification of the objectionable provision or trade the removal of one problematic provision for their forbearance with respect to another. 

     Limits on reconciliation fall into four main categories.  First, reconciliation legislation is only possible to the extent authorized and directed by congressional budget resolutions.  Under the process envisioned in Congress’s rules, this concurrent resolution opens the annual budget season.  It contains overall ceilings on discretionary appropriations and on direct spending within the jurisdiction of each of Congress’s authorizing committees as well as floors on the revenues provided for in tax legislation.  It also typically includes assumptions about how much will be spent in each of an array of broad categories, or “functions”, of the budget.  The Budget Committees that draft the budget resolution may or may not have particular programmatic changes in mind to reach the targets they set, but these are rarely specified and would not be binding if they were.  The budget resolution also may, but need not, contain “reconciliation instructions” to one or more authorizing committees, as discussed below.

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Sunday, December 04, 2016

Bobbitt vs. Jaffer on Drone Strikes

Stephen Griffin

Philip Bobbitt, who to my mind does not enter the lists often enough, has a very insightful review of Jameel Jaffer's book on drone strikes up on the Just Security website.  Jaffer is not too happy with Bobbitt's review, and his reply is here.  To my mind, Bobbitt makes at least two important points that Jaffer misses.  The first is that a judicial or adjudicative model is inadequate to understand the basis and extent of presidential power during an armed conflict (I'm happy to call it a "war," the 9/11 War) authorized by Congress.  So as I recommend in my recent article, Bobbitt takes the 9/11 AUMF seriously.  My contribution is to argue that the presidential elections held subsequent to 9/11 are constitutionally relevant to assessing the basis of the Obama administration's military operations overseas, including drone strikes.  By the way, I am happy to recommend Sai Prakash's article in the same Drake Law Review symposium to which I contributed.  Prakash argues for the position, which I agree with, that the 9/11 AUMF justifies the military operation against ISIS.

Bobbitt's second point is that organizations like the ACLU (as well as journalists) have placed far too much emphasis on OLC opinions as the source of law for the executive branch rather than presidential actions.  Especially in sensitive areas like national security in which there is ongoing presidential involvement, the president controls the law of the executive branch, not OLC.  In understanding that law, we must look first to presidential statements and decisions, not the quasi-judicial statements of OLC.  In any case, I highly recommend Bobbitt's review.

Trump's real threat to democracy

JB

Last week, CNN asked me to write about how President Donald Trump might restrict freedom of speech. Instead I sent them an op-ed explaining the real threats to democracy. Here it is.

Inside the Strange World of “Reconciliation”

Guest Blogger

David Super


     As President-Elect Donald J. Trump feels his way through the transition from candidate to president, another set of far-more-experienced politicians await their turn to transform this country.  House Speaker Paul Ryan, Senate Majority Leader Mitch McConnell, and their veteran committee chairs now have an unprecedented opportunity to transform the country.  With President Obama clearly prepared to veto radical legislation coming to him from the Republican Congress, few have paid much attention to the processes by which such legislation might emerge.  Now, a great deal is being written – much of it incorrect – about the strange world of “reconciliation”.  Because these procedures, much more than substantive criticism, will constrain what Congress can now do, they are worth understanding.  President Reagan was able to accomplish far more than most expected because his advisors mastered congressional procedure far better than many of their adversaries.  This is the first of three posts.  Here, I offer an overview of congressional procedure.  In my next post, I examine in detail what “reconciliation” can and cannot do.  In my final post, I consider how Congress and the President are likely to use congressional procedure to advance their agenda on fiscal and related matters. 

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Thursday, December 01, 2016

Voting Rights Back at the Supreme Court: The Big Racial Gerrymandering Cases You Haven’t Heard Of

David Gans



A key chapter in North Carolina’s long running attack on one of our Constitution’s most cherished principles—equal political opportunity for all regardless of race—comes to the Supreme Court next week.   The pair of redistricting cases the Justices will hear (one from North Carolina, one from Virginia), which have gone largely unnoticed, will be an important test for the Roberts Court.   In deciding these cases, it will be critical that the Court ensure that states respect the Constitution’s promise of equal opportunity for all, reflected in the Fourteenth and Fifteenth Amendments, and the Voting Rights Act.   

Over the last five years, North Carolina has repeatedly acted to violate the Constitution’s fundamental principles of voting rights and political equality that undergird our democracy.  In the wake of the Supreme Court’s decision in Shelby County v. Holder gutting a key part of the Voting Rights Act, the North Carolina legislature enacted what the Fourth Circuit called “the most restrictive voting legislation seen in North Carolina since the enactment of the Voting Rights Act of 1965,” “target[ing] African Americans with almost surgical precision.”  The Fourth Circuit’s decision in N.C. State Conference of the NAACP v. McCrory, handed down last July, invalidated the state legislature’s effort to cut back on early voting, but a number of local election boards eliminated key early voting hours anyway, a result that may have been responsible for the depressed African American turnout during the 2016 election.   In addition to these restrictions on access to the ballot, the North Carolina legislature has sought to pack African Americans into state and congressional districts, lessening their influence elsewhere through blatant racial gerrymanders.  

On December 5, the Supreme Court will consider the constitutionality of North Carolina’s Congressional Districts 1 and 12, two huge sprawling districts whose bizarre shapes were dictated by racial considerations.  In addition to that case, McCrory v. Harris, the Court will also be hearing a companion case out of Virginia, Bethune-Hill v. Virginia Board of Elections.  In both cases, state legislatures sought to pack racial minorities into a handful of districts, using fixed racial quotas which produced badly misshapen districts.   And in both cases, the states claim “the Voting Rights Act made me do it,” based on a cartoonish version of the Voting Rights Act’s guarantee of equal political opportunity.   

The facts of McCrory illustrate what is at stake.  In 2011, the North Carolina legislature turned Congressional Districts 1 and 12 into majority-minority districts, ignoring that in these districts, African Americans had previously been successful in electing candidates of their choice by forming coalitions with like-minded white voters.  The resulting districts cannot be squared with the Fourteenth and Fifteenth Amendment’s guarantees of equality.  The legislature used race for the predominant purpose of packing African Americans into certain districts, thereby curbing their influence elsewhere.  And because African Americans in those districts had previously acted with white voters, in line with the promise of the Fourteenth and Fifteenth Amendments, to elect candidates of their choice, the Voting Rights Act plainly did not compel the redistricting.  States may not use a racial quota to pack racial minorities into certain districts under the guise of Voting Rights Act compliance.    

In striking down North Carolina’s omnibus voter suppression law, the Fourth Circuit observed that a political party holding a majority of seats in the legislature may not “entrench itself . . . by targeting voters who, based on race, were unlikely to vote for the majority party,” making clear that efforts to seek partisan gain “cannot be accepted where politics as usual translates into race-based discrimination.”  The same principle condemns North Carolina’s racial gerrymanders.   In drawing Congressional Districts 1 and  12, race predominated over traditional districting criteria, producing monstrously misshapen districts whose lines can only be explained by the legislature’s desire to pack African Americans into those districts.  The history of past and continuing racial discrimination in North Carolina—from 2011 until today—paints a powerful picture of how North Carolina has sought to marginalize African American voters, whether by making it harder for them to vote or by packing them into districts. 

The Justices need not break new ground to invalidate the racial gerrymanders in McCrory and Bethune-Hill.  It need only apply its past cases, which make clear that the Constitution does not tolerate racial discrimination in the drawing of district lines.  Two years ago, in a case involving a racial gerrymander enacted by the Alabama legislature, the Court made clear that the Voting Rights Act requires “tak[ing] account of all significant circumstances,” not “mechanically rely[ing] on numerical percentages,” as the North Carolina and Virginia legislatures did.  States may draw majority-minority districts to help realize the promise of equality contained in the Fourteenth and Fifteenth Amendments, but they must do so based on hard evidence, not on racial quotas.  Upholding that principle would be an important victory not only for those challenging these district lines, but also for our Constitution’s promise of equal political opportunity for all.      

David H. Gans is the Director of the Human Rights, Civil Rights and Citizenship Program at the Constitutional Accountability Center.  This post is cross-posted at Text and History.

  


Tuesday, November 29, 2016

Trump's Victory and Regime Theory

Stephen Griffin

Consider three general perspectives on the meaning of Trump’s victory for political regime theory.  One we can call “change as order.”  It is said that 2016 was a “change election.”  But doesn’t this sound a bit too familiar?  I believe we were told the same thing from Clinton to Bush II in 2000, Bush II to Obama in 2008 and now Obama to Trump.  Considering this sequence, we might ask whether voters were looking for change from the rule of a particular party, or change regardless of party.  Most commentators are in effect assuming the former, but I think we should consider the plausibility of the latter, that our governing order is being influenced by the desire of voters for change as such.  Otherwise, it seems to me we have more explaining to do.

Why?  Well, if voters were seeking relief each time from the irksome rule of a president of a particular party, they could have accomplished that quite easily in 1996, 2004 and 2012.  Remember the 1970s, when scholars worried about the health of the presidency amid a string of one-term (or failed two term, Nixon) presidencies?  Whether the presidency was actually in some difficulty or not, this is not us.  We are living in an era of apparently successful two-term presidencies.  And at least two of the presidents, Clinton and Obama, left office (will leave office) reasonably popular.  But obviously the presidencies that replaced them involved (will involve) some fairly substantial policy shifts.  What moves voters to keep rejecting the status quo?  

“Change as order” means voters keep rejecting the efforts of successful presidents to extend their policy legacy out of a desire for change as such.  All non-incumbent presidential elections are now change elections.  This suggests that something is wrong at a deeper level, with the constitutional order itself.  No president regardless of party can generate their own order, an electoral coalition that persists.  Because I think the decline of trust in government since the 1960s is one of the crucial issues for our constitutional order, it seems likely to me that continuing low trust is one of the factors destabilizing the efforts of each president to create a lasting legacy.  Another factor seems to be the persistent unhappiness of many voters with the policy and candidate options they are presented with.  Recall how many “regular Republican” candidates and policy positions were trampled in Trump’s rise.

The second perspective I will call the federal order versus the national order, or red states versus blue cities.
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Sunday, November 27, 2016

Republicans and the Americans for Democratic Action

Mark Tushnet

As many readers probably know, Sandy Levinson received an anti-Semitic postcard from Great Britain, and as I've reported I've received a fair number of anti-Semitic e-mails in response to my post on "taking a hard line." (I haven't been to my office since Sandy received his postcard, so I don't know if I got one as well, but I've had an uptick of hate e-mails since the "target list" of liberal professors was released a week or so ago.) Mostly, as Sandy says, this goes with the territory -- although I do have a perhaps unattractive reaction of Schadenfreude that it turns that, though describing my "taking a hard line" post as saying that I wanted to treat Christians like Nazis was a misrepresentation, there are a not insignificant number of people who describe themselves as Christians who are, you know, Nazis (or neo-Nazis, or proto-fascists). The journalist Josh Marshall has usefully described what's happened in the wake of the Trump campaign as "the great disinhibition." Understood in that way, the question of whether Trump or Bannon is personally a racist or anti-Semite is largely irrelevant. The disinhibition they've let loose seems quite real.

It occurred to me that there was something of a historical analogy worth thinking about. Right now it appears as though proto-fascists have a non-trivial amount of influence in leading circles in the Republican party. In the late 1940s some Democrats were concerned that Stalinists were coming to have a non-trivial amount of influence on the Democratic party. (The parallel isn't exact; the vehicle for Stalinist influence would have been Henry Wallace, but he was dumped by the Democrats in 1944 rather than nominated by them for the presidency in 1948.) In response, leading Democrats organized the Americans for Democratic Action as a vehicle for organizing opposition within and outside the party to Stalinist influence. My sense/recollection is that the ADA was pretty successful. I wonder whether something similar will occur now -- the creation of a formal organized counter, associated with the Republican party, to the great disinhibition. At present, all one sees are assertions that somehow "the Republican establishment" will manage to get some control back, re-imposing the inhibitions that have been unleashed. I wonder whether that can be sufficient; liberals in the 1940s didn't think it would be. I also wonder whether times and institutions have changed so much that something like the ADA couldn't be successful under contemporary circumstances. But, it's early days, and, as the Derek Jacobi character says in "Dead Again," I, for one, am very interested to see what's going to happen next.

Saturday, November 26, 2016

President Obama should be supporting a new constitutional convention

Sandy Levinson



From David Remnick's post-election interview with President Obama 


“Some of this is really simple and it’s the thing that Mitch McConnell figured out on Day One of my Presidency, which is people aren’t paying that close attention to how Washington works,” he said. “They know there are lobbyists, special interests, gridlock; that the powerful have more influence and access than they do. And if things aren’t working, if there’s gridlock, then the only guy that they actually know is supposed to be in charge and supposed to be helping them is the President. And so the very deliberate strategy that Mitch McConnell and the Republican Party generally employed during the course of my Presidency was effective. What they understood was that, if you embraced old-fashioned dealing, trading, horse-trading, bipartisan achievement, people feel better. And, if people feel better, then they feel better about the President’s party, and the President’s party continues. And, if it feels broken, stuck, and everybody is angry, then that hurts the President or the President’s party.”


This captures in a nutshell one of the central pathologies of our ever-more-dangerous Constitution.  As I've repeatedly written, Mitch McConnell  is truly evil, but he is not stupid, and his strategy of implacable opposition, including refusing to give Merrick Garland the courtesy of a hearing, was completely rational (and constitutional).  


Perhaps the Republican Party will truly emerge as a  truly serious "party of government" instead of a "party in opposition" in the next four years, but I wouldn't bet on it.  Indeed, I suspect that one reason that McConnell and friends will not eliminate the filibuster on legislation is precisely that they have no desire to dismantle the Obama legacy in its entirety, but lack the political integrity to say so.  Thus they will support one of the insane bills that will "repeal Obamacare" while keeping the requirement that insurance companies not take account of pre-existing conditions, secure in the knowledge that 41 Democrats will save them from actually having to take responsibility for it, and they will have the added benefit of being able to blame obstreperous Democrats in the 2018 midterms.  


Perhaps a retired President Obama could also speak to the idiocy of the electoral college and of life-tenure for Supreme Court justices.  I have a couple of books to suggest that he read!



The new "political correctness"

Sandy Levinson

Anyone who seriously believes that the Trump "election" does in "political correctness" is simply mistaken.  Instead, we are daily being visited with new forms of political correctness.  In no particular order, let me suggest the following as things that will become a condition for participating in polite public conversation in the all-too-near future, on pain of being thought a political extremist or, even worse, not a "good sport" about being defeated in an election:

1.  Donald Trump is not a narcissist, a totally untrustworthy con-man, a sexual predator, or, ultimately, a sociopath.  Instead, he is a successful businessman who will bring a breath (and breadth) of fresh air to a Washington that is in dire need of disruption.

2.  In addition to overlooking his patent psychological deficiencies, one will also have to deny that he is  entirely without any relevant knowledge about almost all of the actual policy areas where the decision-making buck will stop in the Oval Office.  Horace Greeley, I believe, once said that he would as soon trust the wisdom of his dog as that of Roger Taney.  It would be considered tactless to quote Greeley in the present context.  Or one might quote from King Lear that even "a dog's obey'd in office" as the preface to a discussion about political obligation, though that, too, would be considered politically incorrect.

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Friday, November 25, 2016

The Uncomfortable View from 1824

Mark Graber

Americans elites in 1824 successfully prevented a demagogue from assuming the presidency.  The demagogue, Andrew Jackson, won a clear plurality of the popular votes and a small plurality of electoral votes.  Nevertheless, because he did not win the majority of the Electoral College votes, the election was decided by the House of Representatives.  In the subsequent politicking, Henry Clay threw his support to John Quincy Adams, which enabled framing elites and their biological descendants to retain control of the executive branch of the national government.

This elite success was short-lived.  Badly divided and lacking strong public support, the second Adams Administration accomplished little.  Jackson’s supporters, outraged by what they perceived as a “corrupt bargain” between elites, took their revenge in the 1826 midterms and 1828 national election.  Jackson, who received only 41 percent of the popular vote in 1824, received 56% of the vote in 1828.  Every elite fear was realized over the next eight years.  Jackson and his allies in Congress sponsored a genocidal removal of native Americans from the south, substantially increased national support for human bondage, created a recession by destroying the national banking system, put an end to internal improvements, and scuttled plans for a national university.  Jackson’s bellicosity set in motion the events that led to the Mexican War and probably, the events that led to the Civil War.  Elites may have won the battle in 1824, but their means of success helped cost them the war.

American elites were right to perceive a constitutional crisis in 1824, but they misperceived that crisis.  Jefferson, Madison, the Adams clan, and other persons associated with the framing generations loathed Andrew Jackson, a person they correctly regarded as constitutionally unsuited for the presidency because of his bigotry, proclivity to violence and lack of knowledge about public affairs.  The actual constitutional crisis in 1824 was that a substantial percentage of American voters enthusiastically cast their ballots for a person constitutionally unsuited for the presidency because of his bigotry, proclivity to violence and lack of knowledge about public affairs.  This obsession with the violent sociopath rather than with the political movement that spawned and empowered the violent sociopath furthered the collapse of the elite constitutional republic envisioned by the framers.  Taking the election away from Jackson produced four years of political gridlock which further augmented the number of persons who cast their ballot for the person constitutionally unfit by 1787 standards to hold the presidency. 

Whether American elites (of which I am a card-carrying member) will fare any better in 2016 should the Electoral College by some miracle take the election away from Donald Trump than American elites fared in 1824 when they took the election away from Andrew Jackson is doubtful.  Such a success will temporarily disempower Donald Trump while almost certainly increasing the rage of his supporters.  Whether justified or not, Trump voters and some others will perceive that a corrupt bargain has taken place and redouble their efforts to gain control of the national government.  The gridlock produced by a Hillary Clinton presidency is likely to further augment the number of enraged Trump voters who will either elect Trump or someone as bad in 2020 (an electoral college compromise that produces John Kasich or Paul Ryan is hardly better).

The lesson 1824 should teach 2016 is that the approximately 47% of voters who cast ballots for Donald Trump on election day is the most fundamental crisis of our time rather the accidental outcome that a person grossly unfit for the presidency was elected this time.  A nation in which 47% of the voters are willing to vote for a person patently unqualified to be president of the United States (or Treasurer of the Linden Community Civil Association for that matter) is a nation in deep constitutional trouble regardless of whether by accidents of timing and whether that candidate wins or loses.  And, under the rules, the candidate won.  Claims that Clinton “really” won the election because she won the majority of the popular vote are the political equivalent of northern claims before the Civil War that Southerners only gained control of the national government because their representation in Congress and the Electoral College was augmented by the three-fifths clause.  True, but beside the point. 

Andrew Jackson (eventually) and Donald Trump gained office because they garnered enough support to win national elections under the rules that then governed national elections.  Demonstrations that the rules were not democratic, even grossly undemocratic, neither change this political fact nor change the political fact that approximately half the American people approve of Donald Trump nor change the political fact that to regain control of the national government, the left will have to win by playing according to existing rules and practices (which are likely to become even worse during the Trump presidency).  Once the left gains control of the national government, then and only then should left worry about what constitutional rules can be changed informally and what ought to be changed formally.  In the meantime, we need to follow Abraham Lincoln, who spent almost no time during the 1850s persuading the already persuaded that the three-fifths rule was unfair and a good deal of time persuading crucial voters (by the rules of the time) that both their principles and their self-interest were better served by Republicans than Jacksonian Democrats.  One hopes this lesson is learned in less than thirty years.

UPDATE: I really should read the most recent Balkinization posts before posting.  Needless to say, while I share Sandy's fears about a Trump presidency, I think the lesson history teaches is that constitutional parlor tricks (which is what I perceive the "Hamiltonian" solution to be) are failures, even when they work.  Perhaps, however, one reason is that I genuinely think that a Rubio presidency with the present Congress is likely to be about as bad as a Trump presidency.



Thursday, November 24, 2016

Advice from the Book of Changes on Recent Events

JB

The Judgment

Shock. Success.
Thunder comes—crack, crack!
Afterward there is laughter and talk—ha, ha!
The shock terrifies for a hundred miles,
But he does not let the sacrificial spoon and chalice fall.


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Wednesday, November 23, 2016

Will the U.S. survive the 2016 election (continued): A reply to Damon Linker

Sandy Levinson

Damon Linker has a thoughtful reply in The Week to the New York Daily News op-ed co-authored by my UT colleagues Jeff Tulis, Jeremy Suri, and myself.  He certainly does not disagree with our central premise that Donald Trump is a potential menace to the American republic.  The gravamen of his argument is as follows:



[T]he worst possible outcome of the electors throwing the decision to the House would be for Trump to be denied the presidency. Yes, Trump poses a very serious threat to the country and its liberal democratic norms, but he is not the root of the problem. His millions of passionate supporters are. Among other things, these voters rallied to Trump because they responded to his message that the country's political and economic system is rigged against them. Denying the presidency to their preferred candidate after they'd been told for weeks that he prevailed in the election would confirm every conspiracy they ever entertained.
That would be civic dynamite.

There is obviously merit in this view.  Indeed, this is one reason that I've been expressing my deep fears that we are a country on the brink of civil war.  Certainly the social psychology is already there; the question is whether it will indeed take a more violent form, and it would be irresponsible in the extreme to precipitate the latter unless one truly believed it was a better alternative than accepting the risks of a Trump presidency with his enjoying all of the prerogatives--and they are obviously considerable--of what is usually described as "the most powerful office in the world."

We--that is, Tulis, Suri, and myself--do indeed see Trump as an existential threat.  I've probably been the most indiscreet in my language, with my repeated reference to him as a sociopath, and I'm not really encouraged to change my tone by anything he's done since election day.  But the key question really is the empirical one:  Exactly how dangerous does one believe Trump to be, and what risks should his opposition ("loyal" to the country but certainly not to him) be prepared to run?  If it were "merely" having to put up with some egregious policy decisions over the next four years before a very likely Democratic victory in 2020, that would be one thing.  As James Buchanan argued in 1860, it was politically quite stupid for the South to secede after Lincoln's victory, egregious as it was from their perspective, because it was quite unlikely that he could get any truly radical measures through a Congress that contained representatives and senators from what became the Confederacy, and election prospects would be very good in 1864.  (After all, Lincoln won with only 39.8% of the popular vote, and his victory in the electoral college was substantially caused by the presence of three other candidates on the ballot.)  So, if one isn't genuinely terrified by Trump, the best thing to do is to plump for a New Deal-style infrastructure program and accept what William Rehnquist might have called "the bitter with the sweet."  


We continue to be terrified.  Benjamin Franklin famously said that we had a republic, but the test is whether we could "keep it."  Mark Graber has argued that the answer was no with the election of Andres Jackson, and there is certainly much to that view.  But Donald Trump has broken all of the accepted templates of the American form of democratic politics, along with being a raving narcissist and sheer ignoramus on almost all issues of public policy.  The best we could hope for is that he will devote his four years in office to plunder and personal enrichment of himself and his family, since that is really the only thing he seems to care about.  If that were the only concern, then OK.  Corruption of a personal sort is not an existential danger.  Teapot Dome did not destroy the Union.


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Upside Down Federalism

Gerard N. Magliocca

The outcome of the election may change our understanding of federalism. Part of that change is that Democrats will become more keen on states'-rights and Republicans less so, in the grand tradition of political flip-flopping.  A theoretical shift, though, may also be in order.

There are many justifications for federalism. One is tradition, which helps explain why many of the fifty states exist and have the boundaries that they do. Another rationale is that states help check federal authority.  There is also the thought that states'-rights protect geographically concentrated minorities (think Quebec) or allow minorities to sort themselves into places that protect rights that are important to them but are not guaranteed nationally.

The current operation of the Electoral College, the Senate, and (maybe) the House of Representatives raises another possibility--federalism exists to protect the majority from the minority.  Most people voted for President voted for Hillary Clinton, but she carried only twenty of the fifty states (plus DC) and did not carry the combination of twenty states needed to win. The incoming Republican Senate majority also probably represents a minority, though that is complicated by the fact that some states have one Senator from each party. I don't know what the final totals will show for the overall national vote for the House of Representatives, but you get the idea.

If the minority controls the national government, then where are the protections for the majority? The main candidates are some states, the Senate filibuster (which, as people have pointed out, sometimes represents a majority rather than a minority of voters), and the courts. (I say some states because you have to live in a state that the Democrats carried. Hillary Clinton voters in Texas are on the outs both at the national and the state level, though they could move to another state.) There is nothing novel about the thought that courts sometimes protect the majority from a minority, and the same point is sometimes made about the Senate filibuster.  When it comes to states, though, I'm not sure this gets discussed, or at least discussed as much as it should be.          



Tuesday, November 22, 2016

Torture and the U.S. Military

Deborah Pearlstein

Cross-posted at Opinio Juris

There should by now be little doubt that various members of the incoming administration, including the President himself, would be willing to torture terrorist suspects should opportunity arise.  On the campaign trail, Donald Trump expressed a desire to return to “waterboarding” terrorism suspects and “worse.” Mike Pence declined to rule out torture when asked about it expressly this past weekend.   Nominee for CIA Director Mike Pompeo opposed President Obama’s decision in 2009 to close C.I.A. black-site prisons and also to require interrogations to comply with the rules of the Army Field Manual.    Army Lt. Gen. Michael Flynn, the choice for national security adviser, is perhaps more equivocal.  As a firsthand witness to the counterproductive effects of abusive interrogation, he has said that “I would not want to return to ‘enhanced techniques,’ because I helped rewrite the manual for interrogations.” On the other hand, “if the nation was in grave danger from a terrorist attack involving weapons of mass destruction, and we had certain individuals in our custody with information that might avoid it, then I would probably OK enhanced interrogation techniques within certain limits.” 

Even with all best intentions, Congress and the courts are unlikely to play much role at the outset in reining in this particular kind of presidential ambition.  There are clear statutory prohibitions against the use of torture as it is; and the courts are empowered to act only once an actual case or controversy is before them.  It was in no small measure in the face of the same dilemma during the first George W. Bush administration that so many legal scholars turned to focus on the role of internal, intra-branch checks on executive power – the Justice Department Office of Legal Counsel, agency Inspectors General, and others.  It also became apparent that the uniformed military could be included among potentially available checks on executive power. 

After the attacks of 9/11, military lawyers and others in the Pentagon played a critical role resisting efforts by the Bush Administration to evade laws barring torture and cruelty to detainees in U.S. custody.  Not only was such treatment illegal, they argued, authorizing techniques the troops had long been trained were prohibited was disastrous policy: it sowed confusion in the field, compromised operational effectiveness, endangered our troops, and undermined the mission they had been sent to carry out.  Well beyond the Pentagon, it was a young Army specialist who helped blow the whistle on the torture that permeated the U.S.-run Abu Ghraib prison in Iraq, and a Major General whose investigation made clear to Congress how inadequate resources, training, and accountability helped allow the abuse to endure and spread.  Elsewhere, military lawyers urged Congress to investigate whether war crimes trials at Guantanamo could ever actually succeed in delivering justice. And it was an Army Reserve lieutenant colonel whose declaration about his experiences at Guantanamo extraordinarily persuaded the Supreme Court to change its mind and agree to decide whether the detainees there had a constitutional right to have their cases heard.  Entirely apart from the military’s duty to disobey manifestly unlawful orders, both active duty military, and retired leaders, played a pivotal role in preventing America’s torture crisis from becoming worse than it was.

Yet as laudable as this service was, and especially as the incoming administration peoples itself with retired generals galore, the idea that the military might limit the President in the pursuit of his goals should seem at some level exactly backwards. The President is, after all, the Commander in Chief of the military, a symbol of our country’s bedrock principle of civilian control.  That principle was born in part from a (Revolutionary War-era) fear of military oppression in ordinary life, a fear that seems unlikely today.  But it was also driven by the worry that the military – whose political popularity is unsurpassed in contemporary American life – was capable of exercising outsized influence over democratic decision-making.  The image of the “man on horseback” came to symbolize the concern that a particularly successful and charismatic commander could effectively lead the public down a path contrary to its own democratic interests, undermining the ability of elected leaders to accomplish the policy goals the People wanted them to fulfill.

While the military has of course changed dramatically since the Constitution was drafted, the enduring concern that the military might unduly influence politics led to a series of regulations beginning in the early twentieth century restricting active-duty military from engaging in political activities. Congress came to prohibit officers from holding civil elective office, and to impose criminal penalties for using “contemptuous words” against the President, members of Congress, or other elected officials. Today, active duty military personnel are prohibited from participating in partisan political fundraising, rallies, or conventions; using official authority or influence to interfere with an election; or soliciting votes “for or against a partisan political party, candidate, or cause.” 


Such proscriptions are sensible.  But these rules, coupled with powerful career incentives, have too often been understood to limit the honest expression of professional military dissent.  There was in Washington’s time, and today remains, a critical difference between a military expression of partisan alliance and one of professional judgment.  And there is certainly a difference between expressions of political disagreement, and an insistence on adherence to law.  The era of Abu Ghraib taught us that there is a range of ways in which the military can, consistent with their own duty to uphold the nation’s Constitution and laws, help to steady the ship of state.  Of course the military is no panacea.  Plenty of troops supported Donald Trump, and not all would oppose a return to torture.  But it is also clear that the military is capable of performing at least a part of the same service Americans should expect of all our political institutions: as a platform from which people of good will and a commitment to law can make their voices heard. Those concerned about a return to torture should reach out. For it is as least as likely as any of our institutional checks to help constrain whatever policy adventurism is to come.



Monday, November 21, 2016

Will the United States Survive this election (continued) America on the brink of civil war?

Sandy Levinson


I joined my two University of Texas colleagues Jeff Tulis and Jeremy Suri in writing an op-ed, published in today's New York Daily News.  As you can see (if you open it), it calls for a coalition of Democratic and at least 37 Republican electors to ally to vote for a Republican other than Donald Trump and thus throw the election into the House, which would presumably elect the alternative Republican and save us from the Trumpian menace, the character of which seems clearer day by day.  Even though he cannot be assigned direct responsibility, I note the following postcard that I received today at my Harvard Law School office, mailed, it seems, from the UK.  It reads, in toto:  "Hey Sandy   You just got your kike ass kicked.  fuck you hymie.  We're gonna Drain the Swamp at Harvard Law.  Juden Raus!"  There can be no doubt that Trump and Bannon have liberated the worst instincts of a lot of truly deplorable people.  The most unequivocally happy supporter of the new Trump regime is David Duke, which makes a lot of sense.  This is precisely why it is important for conservatives of good will to come together, at long last, for a true "never Trump" movement that would act completely constitutionally by imploring electors to accept the responsibilities actually envisioned for them by the Philadelphia Framers.  One such honorable conservative is Michael Stokes Paulsen, who has a valuable analysis of the electoral college and the constitutionally-guaranteed autonomy of electors.  There is also a group calling themselves the "Hamilton Electors," who emphasize the disconnect between the arguments made by Publius/Hamilton re the electoral college and the view that the electors are totally without the ability to engage in what Publius in Federalist 1 called "reflection and choice" about the character and capabilities of candidates to occupy what we call the White House (built, of course, after Philadelphia).  If we're going to have a constitutional crisis, which is quite likely, better it be to prevent the sociopath from taking office than trying to figure out how to respond after he begins exercising all of the formidable powers of the modern presidency.

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Trump Normalization Watch (conflict of interest)

Stephen Griffin

More substantive articles are appearing about Trump's enormous conflict of interest problems.  To my mind, the WaPo has the best coverage, with a major story here; Jennifer Rubin's follow up on what was said on the Sunday programs; and Trevor Potter's essential analysis.  So, three observations: spokespeople for Trump are using the (nonexistent) law as a shield against what is really a political-policy problem, albeit one that might verge on the constitutional (in my estimation they are bluffing, they don't appear to have a strategy given that Trump almost certainly doesn't want to divest himself of ownership).  Second, the issue is indeed ownership not management, as Rubin points out.  Third, Trump and the GOP are perhaps concentrating too much in their statements on the possibility of "outbound" corruption (outbound, that is, from the Oval Office), wherein Trump makes a decision based on financial interest, rather than "inbound" corruption, in which a foreign power or entity directs financial benefits Trump's way in the hope of influencing American policy.  The only way to solve the latter is through divestiture of ownership.  And this is by no means a complete catalog of the difficulties -- there is also the "overhang" problem as federal officials attempt to make decisions in the ordinary course which will somehow affect Trump's financial interests without worrying about their future job security.

UPDATE: Adam Liptak has a good story today in the "failing" NYT on the emoluments clause.

FURTHER UPDATE: Trump was interviewed today by the NYT and pretty clearly, he does not want to sell his assets or use a blind trust.  We are probably headed to some sort of political showdown on the conflict of interest issue; if not, there could be a series of major corruption scandals extending through the Trump administration.

Choose Your Own Health Insurance Apocalypse

Joseph Fishkin

443,000; 454,000; 379,000.  Those are the estimated number of people in, respectively, Michigan, Ohio, and Pennsylvania who currently have health insurance through the Medicaid expansion component of Obamacare.  That’s the part that the Supreme Court gave states the power to opt out of, but which nonetheless has managed to get more people health insurance than the better-known exchanges-with-subsidies component of the system.  31 states now participate in the Medicaid expansion and that includes every Great Lakes state except Scott Walker’s Wisconsin.  How many of the people currently receiving expanded-Medicaid coverage were Trump voters?  A back-of-the-envelope estimate* is roughly 200,000 actual votes for Trump, in those three states alone. (Note that the outcome in Michigan was decided by fewer than 12,000 votes.)  So, simple question: Does Donald Trump want to begin his presidency by kicking all those people off their health insurance?  Or does he want to keep this major component of Obamacare, or some version of it, in place?

That’s just one of a series of crucial and politically challenging health policy questions Trump now faces as his transition team lurches toward taking the reins of government and implementing his priorities.  Few of those priorities are more explicit than the pledge to “repeal and replace” Obamacare.  “Repeal and replace” has been a point of apparent unity between Trump and his Republican allies in Congress: Paul Ryan and other Republicans in Congress have campaigned aggressively on this idea and slogan for years before Trump adopted it during the campaign.  But Republicans did not spell out a plan for the “replace” part; when pressed they’d tend to offer a thin soup of pre-ACA talking points that were barely relevant to the main choices at hand.  On those big choices they were silent.  That silence now seems ominous—not only for Americans who badly need to keep their health insurance, but also for Republicans who badly need to keep their new majority coalition from combusting.

Staying quiet about the actual policy choices involved in choosing any replacement for Obamacare has so far made political sense for Republicans.  In reality, almost any non-trivial tweak to health policy, let alone an overhaul, will produce intense pain for one or more groups of people, businesses, insurers, governments, or interest groups that are part of the Republican coalition.  When you’re up against Obama’s veto pen anyway, and you’re fighting for votes, why open yourself up to the criticism that an actual plan would attract?  But now Republicans are set to control the entire federal government.  That means they have to govern, for better and definitely for worse.  So they have some big choices to make.  Here are six of the biggest (after the jump):

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City Power: Final Reflections on Cities and the 2016 Election

Guest Blogger

Richard Schragger

For the Symposium on Richard Schragger, City Power: Urban Governance in a Global Age (2016).

 
I want to thank Richard, Scott, Lee, Nestor, Kathleen, and Audrey for their generous and insightful posts about City Power (and Jack Balkin for agreeing to publish them on Balkinization). In this short reply I will be unable to do their comments justice. My goal is simply to add one more reflection with the hope that readers will view these collective comments as an invitation to pay increased attention to cities. As I argue in City Power, cities should be at the center of our collective political, constitutional, economic, and legal thinking.

A number of commentators read City Power against the backdrop of the recent election results—and how could they not?  One irony of the election is that Donald Trump—a man who grew up in New York and made his fortune building there—ran a campaign that was shot through with anti-urbanism. County-level election return maps show how stark is the geographic and cultural divide between city dwellers and those who live in rural and exurban places.  Richard, Nestor, and Scott all point with some urgency to a divided nation—one that seems to pit “cosmopolitans” in big cities against “traditionalists” who live in less dense and less globally connected places.    

The phenomenon of blue cities in red states is in large part a product of residential racial segregation combined with legislative gerrymandering. The divide between failing, rustbelt cities in the Upper Midwest and prospering “new economy” cities on the coasts seems to be a feature of globalization—though we should be wary of resorting to abstractions when specific national policies have aided and abetted that divide. What is shared across this political/economic geography is rising economic inequality coupled with a palpable dissatisfaction with the status quo.

City Power argues that cities are able to address economic inequality, much more so than conventional economic theory would predict. Whether they are permitted to do so is another question altogether. We have seen how red states have clamped-down on municipal efforts to adopt minimum wage ordinances or other labor-friendly regulations, not to mention local LGBT anti-discrimination laws. The preemption rush will only intensify as Trump challenges other city initiatives, whether environmental or economic. As Nestor observes, Trump has already threatened “sanctuary cities” with sanctions—the withholding of federal funds—if they do not comply with his deportation mandate. Defenders of local power will need to invoke NFIB v. Sebelius to fend off financially “coercive” national mandates.
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Sunday, November 20, 2016

Maybe the Democrats Should Help Trump Abolish Obamacare

Andrew Koppelman



One area of common ground between President-elect Donald Trump and the Congressional Republicans is that they’re both eager to do away with Obamacare.  Trump just has one little proviso: he doesn’t want to get rid of the protection for preexisting conditions.  More generally, he doesn’t plan to take health insurance away from 20 million people.  For years, he has said that he supports universal coverage.  He wants to replace Obamacare with “something terrific.”

That means there’s a potentially huge gap between him and Republicans who want radically constrict coverage.  He wants to be able to say he destroyed Obamacare, but he also can’t screw the millions of working class voters – many of whom are already benefitting from the Obamacare subsidies – to whom he owes his election (and who, he hopes, will vote for him again).

That creates a political opportunity for those of us who don’t like letting people die or be bankrupted by treatable diseases.

I’m not thrilled that Trump will be President.  I was depressed about it for days.  But the man is too mercurial to confidently forecast that he will be a disaster.  It is of course no great blessing to have a President who is a stupid, ignorant, habitual liar.  On the other hand, he isn’t an ideological Ayn Rand libertarian, because he isn’t an ideological anything.  Ideology is beyond him. 

If he finds that the Democrats are the only ones who offer him a path to benefit his voters, then he could be persuaded to follow that path.  Obama himself has said that all he really cares about is universal coverage, and that if the Republicans “can come up with something better that actually works, a year or two after they’ve replaced the ACA with their own plan, and 25 million people have health insurance and it's cheaper and better and running smoothly, I'll be the first one to say that's great.”

Obama’s huge achievement, an achievement that may last, is the extension of coverage to a huge population that was previously uninsured.  (That was the principle that the Supreme Court health care case was really about.)  In order to accomplish that, Obama had to make lots of nasty compromises with lots of nasty interests.  Those were worth it at the time: the political opportunity to expand coverage was unlikely to come again.  But the nasty details can and should be revisited.  There are of course lots of ways in which a revision could end up hurting consumers.  That’s why the Democrats ought to be at the table when the details are worked out. 

There have been some Republican suggestions for an Obamacare overhaul that doesn’t diminish coverage.  The Republicans are split on the coverage question, though.  Paul Ryan likes having lots of uninsured people:  “I’d go back to the pre-Obamacare baseline . . . we shouldn’t assume we’re going to have an explosive entitlement and then just replace it with our own.”  (Quoted in Philip Klein, Overcoming Obamacare:  Three Approaches to Reversing the Government Takeover of Health Care 87 (2015).)  Ryan’s political judgment leaves something to be desired:  he appears to be dumb enough even to try to privatize Medicare.  Some Republican proposals could reduce costs, and they certainly would make it easier for individuals to remain uninsured if that is what they want.  But they would also take coverage away from millions.

If Trump isn’t willing to do that – if he’s really willing to insist on universal coverage - then on this issue, maybe we can be friends. 


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