I discuss the end of the term with Emily Bazelon, Will Baude, and Nikole Hannah-Jones in the Times Magazine. More coming.
I debate (with Adam Cox) Mike McConnell and Carrie Severino, here.
It’s time to dust off this old paper, which I wrote with Adrian Vermeule; see also this book where it reappears as a chapter. Tyrannophobia is now definitely a thing. It’s made its way onto Wikipedia (the author of the entry writes with admirable brevity) and even a medical diagnosis website (possibly of questionable utility).
And, of course, it’s made its way into the media:
He’s not Hitler, as his wife recently said? Well, of course he isn’t. But then Hitler wasn’t Hitler—until he was.
How can the distinctive methodology of law be pursued carefully and rigorously? Much of the core task of a lawyer, a judge, or a researcher amounts to assessing substantive legal materials, like constitutional provisions, legislation, or court decisions. But these materials are often canvassed and analyzed non-systematically. Although there are already extensive debates about how to interpret statutes or constitutional text or precedents, those debates tend to center on substantive disagreements about the legal effect of the provisions and not the more methodological question of *how* a given interpretive approach should be pursued. The academy can help by developing best practices for careful analysis.
On May 6th-7th, the University of Chicago Law Review will bring scholars together for a symposium on this subject: Developing Best Practices for Legal Analysis. In addition to ourselves, the participants for the event include Oren Bar-Gill, Omri Ben-Shahar, Curtis Bradley, Melissa Carlson, Vince Chhabria, Frank Easterbrook, Richard Epstein, Richard Fallon, Tom Ginsburg, Abbe Gluck, Katerina Linos, Florencia Marotta-Wurgler, Bernadette Meyler, Richard Posner, Fred Schauer, Lawrence Solum, Barbara Spellman, Nick Stephanopolous, Cass Sunstein, and Adrian Vermeule.
— Adam Chilton (@adamschilton) March 16, 2016
This is another way to see the effects of confirmation of Garland, consistent with the Epstein analysis I cite in Slate. It’s irrelevant that he’s a “moderate liberal” if he is. If he were farther to the left, then Breyer would be the median justice.
Not write legal opinions:
Imagine a hypothetical law student, walking the halls of law library in the year 1954. This law student notices on the floor a few pages torn out a Federal Reporter, perhaps 1,000 words in all, but lacking direct information identifying the authoring court. This student sets himself or herself the task of trying to guess whether the opinion was written by the Supreme Court or an Appellate Court. If that student performed as well as our classifier, he or she would have a roughly 70% chance of being right. Transport our hypothetical student to the present day and he or she would almost certainly be able to identify the case, even if the page lying on the floor was from a case that had been selected for review by the Supreme Court.
The point is that the Supreme Court uses a different language and style from that of lower courts. You might say of course it does–it gets more important cases after all–but if so, then why is this a recent, post-1960 phenomenon? What was going on back in the old days?
The politicization of the Supreme Court, its transformation into a political body that uses moral and policy reasoning to resolve society’s most important controversies, is connected to my analysis of the Garland nomination in Slate. Republicans in Congress would be crazy to confirm him if the reason is that he’s a “judge’s judge.” In a political court, the politics of the justices is all that matters.
If Trump is elected president, will constitutional law and American political institutions protect us from a would-be dictator? Europeans worry about the emergence of Caesarism in the United States, just as the founders did when they invented the presidency. Authoritarianism is making gains around the world; why not here? Of course, Trump may not want to be a dictator. He has repeatedly stated his desire to make “deals,” implying a willingness to cooperate with Congress. But there is no reason to believe anything he says; many of his actions and statements are those of someone with a dictatorial mentality if nothing else, and his popular support derives from his authoritarian image: he appeals to people who yearn for a strongman to protect them. So the question is worth asking. What is the answer?
Let’s consider one of Trump’s proposals: to strengthen libel law so that he can punish those who criticize him. Could he do this? He cannot do it by executive order, and he probably cannot do it even if he persuades Congress to pass a law. First Amendment doctrine is clear: a court would strike down the sort of libel law that Trump advocates (or appears to advocate).
But there are ways that Trump could maneuver around this barrier. If he can appoint flunkies to head the Department of Justice and the FBI (Chris Christie, maybe?), they can order agents to spy on a political opponent and bring prosecutions. All that is needed is a reasonable suspicion of law violations, and there are so many laws that any prominent person, particularly journalists and opposition politicians, might violate even if inadvertently—campaign finance laws, tax laws, business licensing laws, and secrecy laws come to mind, depending on the person’s activities—that an excuse for audit, inspection, or surveillance can be ginned up. Judges can interfere at various steps along the way; whether they do will depend on whether there are plausible reasons to think that the person has broken a law (think of Hillary Clinton, for example). While nothing may come of the investigation, the risk of such harassment, if pursued vigorously enough, may deter opposition to Trump at the margin.
This is not to say that Trump would do any of these things. Exposure of politically motivated investigations could damage him politically; and—a theme to which I will return—lower-level officials might refuse to carry out his plans. But there is a long tradition of this type of behavior, both within our country (Nixon) and without (Putin, to pick one of countless examples).
Trump has other avenues for harassing political opponents—and I confine myself to strategies that are within the realm of the possible as suggested by American political history. But first we need to distinguish two routes to power. In the first, Trump sweeps to victory with enormous popular support as well as the support of the Republican establishment, which finally decides to make peace with him. In the second, Trump barely manages to win the election, perhaps because Hillary Clinton at the last moment is indicted for violating secrecy laws. He comes to power with the support of an enthusiastic minority but opposed by both parties and the majority of the population.
For the first, the model is FDR. But FDR was repeatedly blocked by the courts, as Trump would surely be if he sought to exercise dictatorial power. With the Senate on his side, however, he could appoint Trumpian judges and justices; he could even beat the Supreme Court into submission by threatening to pack it as Roosevelt did. Still, I think none of this will come to pass. Even if Trump is elected, he will not have FDR’s majorities in Congress, or last as long as FDR, or command as much popular support. Working with congressional support, he could do some of the things he says he wants to do—end Obamacare and build a Mexican Wall (assuming that he really wants to do these things, which I doubt). But then by definition he is not acting as a dictator. The possibility that a President Trump uses a temporary political majority to strengthen executive power and demolish the remnants of the opposition, in the manner of Hugo Chavez, is a possibility but not one that is (yet) worth considering.
The more interesting case is the second. A President Trump opposed on all sides by Congress, the courts, the media, and all the rest of the establishment, but supported by an enthusiastic base, could accomplish the great things he imagines only if he exercised something like dictatorial power. At a minimum, he would need to:
— Get his people into the bureaucracy, either as recess appointments or as “advisers” who don’t need Senate approval. If he refuses to appoint moderates demanded by the Senate, his advisers may be able to persuade civil servants to implement Trumpian policies but maybe not.
— Use his personal funds to sue his political opponents, and persuade law enforcement to audit, monitor, and investigate them, as discussed above.
— Impound funds appropriated by Congress and use them for projects like expelling illegal immigrants. This is technically illegal, but presidents have for decades denied the constitutionality of the anti-impoundment statute, and Trump’s lawyers could repeat these arguments.
— Build political support by declining to enforce unpopular laws, for example, the land-use and environmental laws that are so unpopular in the west. He can cite Obama’s immigration enforcement actions as precedent if need be. He can exclude Muslims, at least temporarily, if he wants to.
— Focus on foreign affairs, where he has a freer hand. He can threaten to withdraw military and economic aid to Mexico unless it pays for the Wall. He will give the military maximum support. The military is the most trusted public institution; if he can bring it to his side, he will obtain credibility from the wavering middle.
The first point is the most important. The president acts through other people; Trump cannot accomplish anything unless he can place loyalists in positions of power. If the Senate is unified against him, recess appointments and advisers will accomplish little. If he must compromise on appointments, and independent people become attorney general, head of FBI, and the like, then Trump will not be a dictator.
On the other hand, a president’s patronage opportunities are limitless. If Christie has already fallen in line, many more can be expected to do the same. The president wields a veto and can interfere in countless ways with Congress’ legislative goals. Using his veto and appointment power, Trump may be able to make the deals he cares about—giving the Senate laws and patronage positions in return for approval of the positions that he cares about, the positions in the Justice Department, the military, and the judiciary. Moreover, even if a Trumpian movement remains a minority personality-cult, it could hold the balance of power in a enough states to produce natural allies for Trump in Congress.
The separation of powers is a flimsy constraint on Trumpian ambitions. The federal bureaucracy is probably a more significant one. It has proven itself time and again skilled at opposing presidential power through embarrassing leaks, working-to-rule, simple inaction, and, in extremis, threatening to resign. Still, this barrier may not give much reassurance.
What of political constraints? Trump will need some support in Congress, and if the public detests him, representatives will keep their distance. Public hostility will also strengthen the hand of courts and the bureaucracy. If he is to gain significant public support, he will need a grand success. Taking a page from Putin, he could combine a ruthless military victory against a weak but unpopular enemy (but what exactly?) and extraordinary luck—an economic recovery that just happens to occur when he takes office. But in America, even this is not likely to be enough.
Still, Trump has already done some clever things to immunize himself from future political damage. These tactics have received surprisingly little commentary.
First, he has refused to make promises. More precisely, while he has made a very few promises, he has contradicted himself so many times, no one really expects him to keep those very few promises, or has any idea what he might do as president. Normally, this vagueness would be fatal. For whatever reason, it has worked for Trump. The upshot is that as president, unlike other presidents, he will not be constrained, not even minimally, by promises he made on the campaign trail, and so he can do whatever is most expedient.
Second, he has refused to work through the Republican establishment. Working through the Republican establishment means making commitments to party leaders and supporters, which would constrain his behavior as president. But because he has not made such commitments, he faces no such constraints as president—again, unlike any other president in modern times.
Third, he has disregarded what might be called “political manners.” He has casually insulted Latinos, Mexicans, women, disabled people, and veterans. He has mocked and belittled his political opponents. One might say, as his defenders do say, that Trump doesn’t really mean what he says. But that misses the point. By unsettling the implicit rules of the game which govern our politics, he has further eliminated constraints on his presidency. Will he eliminate affirmative action in federal hiring? Or will he strengthen it? No one knows. Having thrown into doubt the unwritten rules that have constrained other presidents, he has more scope to act as he sees fit.
Many of the informal but powerful ways that politics constrains presidents with authoritarian tendencies will not constrain Trump. Whether that means he will be Caesar if elected remains to be seen. I think the likelihood is extremely remote. It is much more likely that his authoritarian tendencies will clash with a legalistic political culture and an individualistic political culture, yielding disruption and gridlock. But that is reason enough to be alarmed.
What is quadratic election law? It is quadratic voting, applied to our political system, in a way that does not conflict with legal and political norms. Read about it here.
Or so it appears. The CFscore on the y-axis measures the clerk’s ideology (based on donations to political campaigns) from liberal (-2) to conservative (+2). Scalia is just an example but the trend is notable; the other justices are equally bad (or good, depending on your point of view). And it turns out that lower courts follow the pattern though not quite as strongly. From a new paper by Bonica, Chilton, Goldin, Rozema, & Sen.
I’ve read a lot of claims about Scalia’s influence over the development of the law. His fans insist that even if Scalia’s position did not always (or even usually) prevail in the major cases heard by the Court, his theories of constitutional and statutory interpretation have forced other justices and lower-court judges to write analytically tighter opinions. For reasons I’ve given elsewhere, I’m skeptical. But these things are heard to measure. Is there something measurable we can look at?
According to Jeffrey Toobin,
During Scalia’s first two decades as a Justice, Chief Justice William H. Rehnquist rarely gave him important constitutional cases to write for the Court; the Chief feared that Scalia’s extreme views would repel Sandra Day O’Connor, the Court’s swing vote, who had a toxic relationship with him during their early days as colleagues.
If true, this seems like a damning indictment. A justice who, in insisting on the purity of his principles or perhaps in indulging in the charms of invective, gives up the opportunity to shape the law does more harm than good for his followers. To see if Toobin’s claim is true, I collected a list of “landmark cases” from Wikipedia (where else?), and asked an RA to count up the number of majority opinions written by each justice starting with Scalia’s first term in 1986, and excluding the justices who left the bench in the early 1990s. Normal empirical-research caveats apply. Here are the results:
Scalia doesn’t look too bad. No surprise that the two chief justices would reserve many of the most important cases for themselves, and that Kennedy and Stevens—perennial swing-voters—would devour the lion’s share of the others. Still, in a right-leaning court Scalia hardly distinguishes himself.
Scalia has also been on the bench a lot longer than the others. Adjusting for years on the bench, one gets a more accurate view of his capacity to influence the law.
Scalia does worse than Alito, his junior by many years, and barely surpasses Kagan, another junior who is hampered by her position on the left. Will Scalia go down in history as a justice whose ability to influence the law fell somewhere between that of Souter and O’Connor?
Jack Balkin disagrees with my prediction that originalism will fade away. He makes two arguments, albeit divided in five categories.
Originalism will survive as “a common language for political conservatives to talk about their constitutional values” (arguments 1 and 5)
Originalism will decline first in law schools, as liberal constitutional law professors—who overwhelmingly dominate the field—no longer feel the need to engage with originalism, because it no longer plays a role in Supreme Court decisionmaking even as rhetoric. As they stop writing about it, originalism will move back from “on the wall” to “off the wall.” Law review editors will stop taking it seriously, and publication of originalist scholarship will decline. Conservative scholars will look elsewhere for inspiration. If originalism survives in political discourse, it will survive only as a code word (like “strict constructionism”).
Jack also argues that the cultural importance of founder worship ensures that originalism will survive as a political force. However, I don’t think the two have much to do with each other. Founder worship is a term for an American mythology that is only remotely related to the founders’ actual views. The modern-day political role of founder worship determines the content of that mythology. Originalism, if undertaken sincerely, undermines mythology, as all serious history does. The obscure and complex origin of the American state, and its remoteness to present-day realities, was always a weakness of originalism, not a strength.
Originalism as a comprehensive theory of constitutional interpretation may disappear, but originalist arguments will survive (including the tactical use of originalism to overturn precedents) (arguments 2, 3, and 4)
This I agree with, but only because the text of the Constitution has always played a role in constitutional decisionmaking except when swamped by inconsistent precedents. Jack also thinks that justices use originalist rhetoric to overturn precedents that they don’t like. That’s all fine. I wasn’t talking about rhetoric; I was talking about practice or, at a minimum, sincere reliance on originalist methods. Originalism became a thing only because Justice Scalia and his academic followers believed that originalism was more than a rhetorical trope. It was this claim that energized and inspired the conservative legal movement—the claim that the constitution, properly understood, actually embodied conservative values. As this claim loses its influence over judicial decisionmaking, the conservative legal movement will look elsewhere for a unifying ideology.
My prediction that originalism will fade away has received cogent responses from Larry Solum, Michael Ramsey, and Jack Balkin. When I can find the time, I will respond to them. I do want to clarify that I am, in effect, treating all of us law professors as endogenous to larger social and cultural forces rather than (as we prefer to think of ourselves) as autonomous agents. I’m not making arguments on the merits of originalism and its competitor theories (whatever “merits” might mean in this context). And while I could be wrong about those forces, this is the terrain on which the debate should take place (and for that reason, Jack Balkin’s post is most directly responsive (but in brief response to him, I mean by originalism the legal-intellectual movement asserting what he calls a “comprehensive theory of constitutional interpretation” associated with Scalia’s ideas and not, for example, episodic examinations of the text in light of historical context when precedents run out, which is hardly new or distinctive. I’m also talking about the near-term, let’s say, a horizon of ten years, not forever.)). But I had some other thoughts, albeit along similar lines, that I wanted to jot down first.
Suppose that President Obama or his successor, if a Democrat, nominates and manages to secure the appointment of a (very likely) moderate liberal justice. We will now have, for the first time in decades, a clear 5-4 liberal majority. How will this change constitutional theory, by which I mean the work product of constitutional law professors?
First, the various theories of judicial restraint (that is, deference to precedent) advocated in recent years by a number of liberal law professors will instantly lose their appeal. Judicial restraint would simply consolidate conservative precedents at a time when liberals finally have the opportunity to reverse hated decisions like Citizens United and Heller. Look for a revival of Elyish theories that claim that the political process fails women, gays and lesbians, African-Americans, criminal defendants, poor people, and other vulnerable minorities (or, in the case of women majorities). Look for more arguments, adumbrated by essays in this book, that liberal or progressive values have been incorporated into constitutional norms via historical, sociological, and intellectual processes. (The authors of the book may have been unduly pessimistic, from their own standpoint, in picking 2020 as the year of constitutional change.)
Second, while I have no doubt that some constitutional law scholars committed to originalism will continue to write in this vein for the time being, look for a gradual shift in the center of gravity in conservative scholarship to judicial restraint. The explanation is symmetrical with my first point. Judicial restraint will help preserve the gains in conservative constitutional law—including the creation of gun rights, the expansion of speech rights, the erosion of protections for criminal defendants and minorities, and so on—at a time when a liberal majority will reject all efforts to advance the conservative legal agenda. By contrast, it is possible that a new moderately liberal swing justice will hesitate about sweeping aside recent precedents if persuaded that radical change would do significant damage to the court’s reputation. It is easy to imagine a moderately liberal justice voting to cut back on Citizens United but not, say, Heller, just as O’Connor and Kennedy drew the line at Roe. Ambitious conservative legal scholars might get a hearing if they drop their commitment to originalism and make arguments based on the small-c conservative values inherent in respect for precedent, or, more creatively, argue that religious people should be designated a suspect class because they are vulnerable to discrimination.
Will constitutional law professors really turn on a dime? Certainly not all of them. A flip-flop at the level I am discussing can occur through selection effects rather than individual changes-of-mind. This is an opportunity for conservatives, particularly younger conservatives, who have not staked their reputations on originalism, and likewise in the other direction for liberal scholars who have not committed themselves to judicial restraint. My arguments might sound cynical, but I have history on my side.
Most law academics write scholarship with the hope and expectation that their work will influence public policy. Not all of them—it is possible to write good scholarship that advances knowledge but has no immediate application to policy. But such scholarship is pretty rare in the legal world.
Many judges complain that law professors don’t write for them—for the judges. I’ve always thought that this complaint was exaggerated, but it is true that many law professors, perhaps most, write for a broader audience, including regulators and legislators, and the broader policy community that, sooner or later, might bring their ideas to the attention of people with power. In the end, the goal is to get something done. Citation of one’s work in judicial opinions, legislative history, regulatory documents, and the like, is thrilling validation that one’s ideas are not completely useless.
This brings me to originalism. The audience for originalist scholarship—and I mean the audience with the power to use originalist scholarship to change people’s behavior and thereby to validate the importance of the scholarship—consists entirely of nine people: the justices of the Supreme Court. (Okay, and also their clerks). Legislators don’t care about originalism. Regulators don’t care about originalism. Not even the lower courts care about originalism.
With Scalia gone, only one originalist justice remains—Clarence Thomas. The other seven justices don’t care about originalism, at least not in the sense that Scalia did. They do not champion originalism. They may be receptive from time to time to arguments about the original understanding of this or that clause, but they clearly don’t think of such arguments as dispositive or even particularly weighty. Those arguments are, at best, allowable arguments.
Supreme court litigants must now decide whether to fill precious space in their briefs with originalist arguments. Maybe they will do so, to get Thomas’ vote. But Thomas’ originalism is, by all accounts, idiosyncratic and unpredictable. And the other justices are unlikely to make originalist arguments in their opinions to attract a vote from Thomas, who increasingly goes his own way.
President Obama will not try to replace Scalia with an originalist. This we know. What if the next president is a Republican? I doubt that a Republic president will expend any political capital to try to appoint an originalist. History shows that hardly any presidents make appointments for such narrowly ideological purposes. Just consider the record of Bush II, Bush I, and even—aside from the Bork fiasco and Scalia himself—Reagan, who appointed the stalwart non-originalists, Sandra Day O’Connor and Anthony Kennedy. Presidents are concerned above all with an appointee who will not interfere with their political agenda.
It’s true that presidents are under pressure to appoint ideologues. And as we see from Ted Cruz, the word “originalism” remains an important political code word. But a Republican president will not be under pressure to appoint an originalist; he will be under pressure to appoint someone who is likely to overturn Roe v. Wade and uphold gun rights. It’s simply irrelevant whether this person is an originalist or not. Indeed, a sincere originalist is not as politically dependable as someone with strong conservative political values which he will use to resolve legal disputes. Sincere originalism could lead in any number of directions (for example, overturning Citizens United). A conservative federal judge with strong prior experience working in a Republican administration would be a far safer choice than, say, an academic (like Scalia himself) who cares about ideas.
Where does that leave the growing community of legal academics who identify themselves as originalists? They will continue to have an audience for their work—themselves. But if, as I suspect, the Supreme Court gradually stops citing originalist scholarship, that audience will no longer be enough to motivate them.
Daniel Hemel writes:
The betting website PredictIt now puts the odds of Donald Trump winning the White House this November at 21%. I don’t think that estimate is too far off: Trump is ahead in virtually every recent Republican primary poll, and he trails Hillary Clinton by 2.6 percentage points in a general election matchup (according to the RealClearPolitics polling average). If there is, say, a 1-in-2 chance that he wins the Republican nomination and a slightly less than 1-in-2 chance (conditional on winning the nomination) that he defeats the Democratic candidate in the general election, then 21% seems just about right.
At the very least, the possibility of a Trump victory is not so remote as to make it too soon to ask ourselves: what would life under President Trump look like? To some extent, the answer depends on what the next Congress looks like — many of Trump’s proposals (like lowering the top individual income tax rate to 25%, ending birthright citizenship, and issuing concealed carry permits that are valid in 50 states) would require statutory changes. But not all of them. For example, Trump could accelerate the pace of deportations without any new legislation (though it would help if Congress allocated funds to triple the number of Immigration and Customs Enforcement officers, as Trump has said it should). Moreover, 8 U.S.C. § 1182(f) already gives the President broad authority to “suspend the entry of all aliens or any class of aliens” when he (or she) finds that their entry “would be detrimental to the interests of the United States.” (Others — including my colleague Eric Posner — have discussed whether the First or Fifth Amendment would prevent President Trump from banning Muslim immigrants from entering; I won’t weigh in on that question except to point out that President Trump presumably could ban some or all immigrants under § 1182(f) as long as he did not target immigrants of a particular religion, race, ethnicity, gender, or other “suspect class.”)
What checks and balances might prevent President Trump from taking executive actions along these lines (e.g., an executive order banning all immigrants from entering the United States for a period of time)? Conceivably, Congress could repeal § 1182(f) — though President Trump presumably would veto the repeal legislation, and Congress could override the veto only with the support of two-thirds of the House and two-thirds of the Senate. Alternatively, a federal court might block President Trump’s executive order — though I don’t know what theory the court would use. Could a court set aside the President’s finding that entry of these immigrants “would be detrimental to the interests of the United States”? The President’s action might be “arbitrary and capricious” under the standards of the Administrative Procedure Act, but the Supreme Court held in Franklin v. Massachusettsthat the President is not an agency subject to the APA.
That leaves, as perhaps an unlikely suspect, the Department of Homeland Security. By this, I don’t mean the Secretary of Homeland Security — Trump would want to pick a loyalist for that post. I mean the Department of Homeland Security rank-and-file — the hundreds of thousands of DHS employees whose active participation would be necessary to implement Trump’s policy (even if they have no formal say in the matter under the Constitution).
In a dissenting opinion three years ago, Chief Justice John Roberts emphasized the extent to which administrative agencies can prevent a president from carrying out his or her agenda. Citing work by two of his colleagues on the court, Roberts wrote:
Although the Constitution empowers the President to keep federal officers accountable, administrative agencies enjoy in practice a significant degree of independence. As scholars have noted, “no President (or his executive office staff) could, and presumably none would wish to, supervise so broad a swath of regulatory activity.” Kagan, Presidential Administration, 114 Harv. L. Rev. 2245, 2250 (2001); see also S. Breyer, Making Our Democracy Work 110 (2010) (“the president may not have the time or willingness to review [agency] decisions”). President Truman colorfully described his power over the administrative state by complaining, “I thought I was the president, but when it comes to these bureaucrats, I can’t do a damn thing.” . . . President Kennedy once told a constituent, “I agree with you, but I don’t know if the government will.”
Roberts wrote those words to make a very different point: in the case three years ago, he was arguing that the Supreme Court should not defer to the Federal Communications Commission on a particular issue regarding the placement of cell phone towers. Moreover, presidential power vis-à-vis “independent” executive branch agencies such as the FCC is even weaker than with respect to Cabinet departments. But the point applies across the executive branch — and it would almost certainly apply to a President Trump. As president, Trump might be able to do more than “a damn thing,” but he wouldn’t be able to do everything he wanted to — or even everything the Constitution allows him to. He may become Commander-in-Chief over a military of 1.5 million soldiers and sailors, but an even larger corps of 2.7 million federal civilian employees would still stand in his way.
Would Homeland Security employees engage in outright civil disobedience under President Trump? Perhaps not. But between outright disobedience and vigorous enforcement of a president’s policies, there is a wide spectrum of potential bureaucratic responses. These responses will vary depending on the president’s policy — for example, if Trump orders Homeland Security to stop everyone except for U.S. citizens and lawful permanent residents at the border, then disobedience by an individual agent may be relatively easy to detect. (But if President Trump banned all foreigners, how would he fill the rooms at his hotels?) On the other hand, if Trump orders Homeland Security to stop every foreigner who arrives at a U.S. airport without a nonrefundable return ticket, then the individual agent might have more room to decide just how closely she will examine the airline refund policy in fine print.
These are, of course, hypothetical responses to hypothetical policies: we don’t yet know what a President Trump will do (and hopefully we never will know). We do, however, have many historical examples of “bureaucratic drift” — that is, of an agency pursuing goals that diverge from those of its presidential principal. The Environmental Protection Agency under President Reagan is one example: B. Dan Wood finds that “following the Reagan inauguration, the EPA bureaucracy bucked the administration and used its slack resources to substantially increase surveillance of pollution sources.” EPA Administrator Anne Gorsuch Burford managed to reverse this trend for a time, but her stormy tenure ended in resignation after less than two years, after which “[t]he committed bureaucrats who remained at EPA . . . again found slack to restore and intensify their surveillance activities.” Wood and coauthor Richard Waterman document a somewhat similar phenomenon at the National Highway Traffic Safety Administration under President Carter: while Carter and his NHTSA administrator both favored a more robust regulatory regime, the lower-level employee in charge of engineering evaluations did not share that regulatory philosophy, and the number of auto safety defect evaluations dropped sharply. And there are countless more cases of drifts less dramatic — many of which might not be observable to academics and other outsiders.
To be sure, the drift dynamic depends on the preferences of bureaucrats being different from the preferences of the president. And the former are difficult to measure. We do, however, have data on political contributions by employees at various federal agencies. And so we know that at Homeland Security, 61% of political contributions (by dollar amount) went to Democrats in the 2012 election cycle. We know that of the small number of Homeland Security employees whose 2016 presidential campaign contributions are reported along with their place of work in the OpenSecrets database, 58% donated to Democrats (primarily to Clinton) and none gave to Trump. And according to one poll of workers across federal agencies this past August, more than two-thirds said they had an unfavorable opinion of Donald Trump (the unfavorable figure was 65% for Ted Cruz, 54% for Clinton, 46% for Marco Rubio, and 40% for Bernie Sanders).
All of which is to say that in thinking about a Trump presidency (or, for that matter, an administration led by anyone whose views are far afield from the federal rank-and-file), we should think not only in formal separation-of-powers terms but also in practical terms of bureaucratic drift. Even where a President Trump would have constitutional and statutory authority to pursue his policies via executive action, he might not have the bureaucratic buy-in necessary to carry those policies through. Nor could he easily replace the federal rank-and-file with a bureaucracy of Trump followers: aside from the tenure protections of the Civil Service Reform Act, the existing rank-and-file is further insulated by the fact that outsiders couldn’t just step in and do their jobs. Say what you want about “good enough for government work”; the fact of the matter is that longtime federal employees have accumulated loads of agency-specific expertise that wouldn’t be easy for new hires to rebuild.
These practical observations raise difficult normative questions — questions that could consume an entire book. Assuming it is true that rank-and-file federal officials could make it difficult for a President Trump to implement his most extreme policies, that doesn’t necessarily mean that they should. After all, Trump will only become President Trump if he wins the November election, which would imbue even his most disturbing proposals with a degree of democratic legitimacy. Under those circumstances, what would be the ethical obligations of a rank-and-file federal worker unwilling to carry out Trump’s directives? As a lawyer rather than a philosopher, I’m not sure I’m competent to answer that question. But with Trump just days away from winning his second primary in South Carolina, I don’t think it’s too early to ask it.
In Slate. I predict that originalism as an academic field in law schools will not survive without Scalia on the Supreme Court to provide it with legitimacy.
I argue in Slate that Cruz is ineligible for the presidency. But would a court stop him if someone sued?
Courts employ various devices to avoid deciding uncomfortable, politically charged questions. For example, the political question doctrine deprives courts of jurisdiction over issues that are inherently “political,” meaning that the Constitution grants jurisdiction to other parts of the government to decide the issue, or the issue just is not amenable to judicial evaluation because it requires a “policy” judgment rather than a “legal” judgment. A prominent example is impeachment: if the president is impeached and convicted, a court won’t second-guess the Senate. However, the eligibility rules are different. Imagine that Miley Cyrus is elected president. The Constitution sets the minimum age at 35; would a court block 23-year-old Miley from office? Imaginably, yes. There’s nothing difficult about determining someone’s age or what the constitutional provision means. What if the person is not a “natural born citizen”? Justin Bieber, 14 years hence. Also, imaginably, yes. If so, and if Cruz is found not be a natural born citizen, then yes for Cruz as well?
In 2008, a person named Markham Robinson brought a lawsuit arguing that John McCain could not occupy the White House because McCain was born on a naval base in the Panama Canal Zone. The court dismissed the suit because Robinson—who wanted to become an elector for long-shot candidate Alan Keyes—could not show that he was injured by McCain’s candidacy—and must in any event wait until after the election to bring his lawsuit since the Constitution charges Congress in the first instance with the task of evaluating election results. It’s also not clear that Hillary Clinton or Bernie Sanders could challenge Cruz if he won the election, since the remedy—Cruz stepping down—would give the presidency to his vice-president rather than to Clinton or Sanders. Clinton/Sanders, like Robinson, would not have suffered an injury. However, Cruz might want to choose his vice-president very carefully.
You can listen to me babble about executive power. I talk to Stewart Harris about Obama’s immigration enforcement orders and Trump’s supposed plan to exclude Muslims from the U.S. when he’s president. If you see a black rectangle below, click on it, or just click here.
A little history that has not yet played a role in the debates:
The founders admired the British system of government, and copied much of it, but they rejected the class society on which it was based. Hence the House of Commons becomes the House of Representatives; the House of Lords becomes the Senate, whose members do not obtain their seats via class lineage. The president was modeled on the king, with elections replacing the British reliance on royal dynastic succession.
The key thing that the founders knew—and we have all forgotten—is that numerous English or British kings were foreign born, indeed, were foreigners. The seventeenth-century kings James I and Charles I were born in Scotland (a foreign country to their subjects in England). William III, who in 1689 initiated the constitutional monarchy that existed at the time of the U.S. founding, was Dutch. The two early eighteenth-century kings, George I and George II, were born in Germany. This was a consequence of the rules of dynastic succession at a time when royal lineages crossed borders .
But the foreign connections of English and British kings were a constant source of political tension. English subjects distrusted the foreigners who occupied the throne. The alleged French sympathies of James II (not foreign born, but a Catholic and cousin of Louis XIV, who spent much of his early adult life abroad) led to the Glorious Revolution. In those days, it was not out of the question for a king to invite a foreign army to come to his aid by invading his own country. Parliament could not ban foreign kings but it did the best it could in the Act of Settlement of 1701, providing that if the Crown “shall hereafter come to any person, not being a native of this Kingdom of England, this nation [shall] not be obliged to engage in any war for the defence of any dominions or territories which do not belong to the Crown of England, without the consent of Parliament.” It also banned from the throne Catholics, and spouses of Catholics—namely, foreigners and native-born people thought to have foreign sympathies, like James II.
Could a foreigner born of an American citizen, possibly a foreign lord flush with cash, come to the United States and bribe his way to the presidency? Such a possibility would not have been far from the minds of the founders. The natural-born citizenship clause solved this problem in a stroke. It ensured that presidents, unlike British kings, would be free of foreign sympathies arising from foreign birth and connections. The founders required that representatives have been a U.S. citizen for seven years, and senators for nine years, before taking office. The “senatorial trust,” explains The Federalist Papers, “ought to be exercised by none who are not thoroughly weaned from the prepossessions and habits incident to foreign birth and education.” The presidency—an infinitely more important office than that of a senator—must be protected all that much more from foreign influence, they believed.
What does this mean for Cruz? Whatever the merits of his candidacy, it’s unlikely that he would, as president, call for an invasion by the Canadian army. But Cruz, whose campaign website is headed “RESTORE THE CONSTITUTION,” and who has criticized the Supreme Court for “redefining the meaning of common words,” is in a weak position to argue that natural born citizen is something it isn’t.