What would a constitutional crisis look like?

Keith Whittington usefully identifies two types of constitutional crisis:

Operational crises arise when important political disputes cannot be resolved within the existing constitutional framework. (p. 2101)

Crises of constitutional fidelity arise when important political actors threaten to become no longer willing to abide by existing constitutional arrangements or systematically contradict constitutional proscriptions. (pp. 2109-10)

In the context of Trump, an operational crisis would occur if Trump directed border agents to disobey a judicial order blocking his temporary immigration ban. The agents would then need to choose whether to obey the president or the judge, with perhaps no clear sense of the proper thing to do. Trump has not issued such an order. But the sense that we may be on the brink of crisis arises because he has personally attacked Judge Robart, who issued a nationwide TRO, and has laid the groundwork for a more vigorous attack on the independence of the judiciary if a terrorist attack takes place in the future. If Trump successful cows the judiciary or the judiciary stands up to Trump, then a crisis might be averted. Whether the outcome is good or bad depends on your view of presidential power.

A crisis of constitutional fidelity could play out as follows. Suppose it turns out that Trump really seeks to pursue the alt-right agenda of purifying America of foreign influences, starting with Muslims. The executive order, which was limited to only seven countries, was just the first step in a broader plan. If so, Trump repudiates a norm that is currently regarded as constitutional by the legal and political establishment: a norm of nondiscrimination on the basis of religion. (I think there is in fact some question whether such a constitutional norm exists with respect to foreigners not on American territory, but put that aside.) A constitutional crisis will exist if Trump has such a plan and seeks to carry it out, especially if he tries to extend it beyond the limited confines of the executive orders.

How might a constitutional crisis play out? It depends on how public officials and ordinary people react to the allegation that Trump (or other officials) have acted unconstitutionally. There are many possible scenarios (public demonstrations, government paralysis, etc.), but it seems premature to imagine them.

It is possible to think that constitutional crises are not bad but good. The crisis that led to the Civil War ended with the abolition of slavery. The crisis initiated by Franklin Roosevelt’s court-packing plan eventually placed the administrative state on a firmer constitutional footing. What is distinctive today, putting the earlier crises in sharp relief, is that the challenge to the status quo has been brought by the forces of reaction, with liberals on the defense.

Why Republicans oppose Garland

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.

What is it that the supreme court does, anyway?

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.

From Livermore et al., Agenda Formation and the U.S. Supreme Court: A Topic Model Approach.

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.

Law of The Donald

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.

How influential was Scalia, really?

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:

landmark opinions

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.

landmark opinions per year

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?

Stone on ISIS and freedom of speech

In the Huffington Post, Geof Stone criticizes my argument that Congress should consider a law that prohibits people from accessing ISIS websites and ISIS-related recruitment social media posts. Geof argues that history shows that the government overreacts to security threats, either succumbing to or exploiting public panic. He makes this argument in greater length in his fine book, Perilous Times. While I have read his book and others like it, I remain unconvinced, for the following reasons:

  1. It ‘s too easy when looking at historical examples to succumb to hindsight bias. While today it is obvious with the benefit of hindsight that the Red Scare prosecutions and deportations were wildly excessive, it was hardly obvious at the time. In our own memory, we have 9/11, and most of us remember very clearly that it was almost impossible to evaluate the enormous range of possible countermeasures that could have been implemented in the aftermath of the attacks.
  2. The basic logic of emergency response points toward what will seem excessive later on. The reason is that an inadequate response will cost lives, whereas an excessive response will result in infringements of civil liberties like speech, which–as Geof points out–are almost always temporary. There is a view among many civil libertarians that every time the government introduces a new security measure, civil liberties are irretrievably lost. The ratchet is invoked as a metaphor. Yet the First Amendment is far stronger today than it was ever in the past; today, it is a wrecking ball used not only against security measures, but against campaign finance rules, consumer protection laws, labor laws, anti-pornography laws, and many other rules that in the past were considered constitutionally sound.
  3. Geof’s best example of an overreaction is the internment of Japanese Americans, which government officials apparently believed was not necessary even at the time. Conceded. But I don’t think it’s fair to argue that Lincoln overreacted in the midst of a civil war, or even that the Alien and Sedition Acts were–at the time, 1798–unjustified given the standards of the time, the existence of a quasi-war, and the extreme political instability as well as vulnerability of the early Republic. It’s simply too hard to put ourselves back into that historical setting.
  4. It’s also too easy to blame “fear” or “panic.” When the government enhances security measures after an attack, critics almost always say that the government is “panicking” or exploiting public panic. The problem with this argument is that enhanced security measures are also a logical response to an attack. The mere fact that the government enhances security measures therefore does not tell us whether the response was panic-driven or reasonable.
  5. In fact, it is quite common for the government to consider and then reject harsh measures. A recent example is the proposal to ban all Syrian refugees. The House passed a bill to this effect but the bill was rejected by the Senate, which has instead supported a more reasonable-sounding enhanced inspection regime for visa applicants. So did the government panic or not?
  6. Finally, the government cannot just ignore public fears; it must address them. Critics who complain about “security theater” in airports just don’t understand that the government cannot wave a magic wand and make fear vanish; it must respond. When it doesn’t, people legitimately complain that the government doesn’t take their interests seriously.
  7. I don’t think we can do better than to consider the costs and benefits of a proposed security measure on the merits. As history recedes, it can provide as much misguidance as guidance.

More on anti-propaganda laws

My piece in Slate advocating an anti-propaganda law garnered little enthusiasm. A few themes emerged. Some critics deny that ISIS poses a serious threat. That may well be true, as I acknowledged. One wouldn’t want to pass laws that counter a threat that does not exist. Others warned that it is easy to overreact, as I also acknowledged. However, my major concern was not ISIS but the new technology environment in which we live. The question, which no one seems to want to address, is whether social media and other forms of Internet-based communication create opportunities for radicalization that pose a threat to public safety. People have finally gotten around to admitting that the Internet poses a threat to privacy. I think in a few years the radicalization risks posed by the Internet will be too obvious to ignore. (Incidentally, law enforcement does not ignore the risks, nor do people who think about security for a living.)

Otherwise, the critics fall back on three generic arguments. One is that people who are sufficiently determined will be able to evade the anti-propaganda law that I proposed. The generic version of this argument is that no law that can be evaded is worth enacting. If the argument were accepted, then no laws would be enacted. While it’s true that some laws are ineffectual because they contain loopholes or rely on vague definitions, that’s hardly a reason for abandoning the effort altogether. It is in the nature of radicalization that at an early stage a person does not yet believe the doctrines to which he later commits himself. The purpose of an anti-propaganda law is to catch people at this early stage, before they find it worthwhile to take steps to conceal their identities. For that reason, evasion is not as serious a problem as it is in most other areas of the law.

The second is that it is simply impossible to draw a line between propaganda and legitimate political speech. That’s why I argued that the law should ban relatively concrete actions like linking to websites that are sponsored by or otherwise closely associated with ISIS. Line-drawing is a ubiquitous problem in legal regulation. The unavoidable arbitrariness of drawing lines has never been an argument against doing so, not even in the area of freedom of expression, where line-drawing is ubiquitous.

The third generic argument is that once one makes an exception to broad protections for freedom of speech, the camel’s nose is under the tent, we have stepped onto a slippery slope, etc. These clichés are as dry as dust and not even true. Courts have constructed countless exceptions to the First Amendment’s apparent unconditional protection for speech, including exceptions for defamation, child pornography, copying, fraud, and more—and yet none of these exceptions have expanded to swallow up the rule. Time, place, and manner restrictions could easily be expanded into a regime of effective censorship, but never are. To the contrary, protections for freedom of speech have never been stronger. If there is a slippery slope, it has gone in the other direction, with a conservative Supreme Court strengthening freedom of expression in areas like campaign finance and commercial activity in the last several decades, building on protections for political and artistic expression that were created by a liberal Supreme Court in the 1960s. If we could ban slippery slope arguments, the quality of public debate would be vastly greater.

Has Obama paved the way for President Trump’s anti-Muslim immigration order?

I was asked this question by a reporter, who wrote this story. Although the answer is “no” in any direct sense, the question reflects a low-level uneasiness I have noticed among Obama supporters who have praised (or rationalized) his aggressive executive unilateralism (especially as reflected in his immigration orders) but worry that it may set a precedent that future Republican presidents will take advantage of.

But it’s not clear whether presidents set precedents or, if they do, how it works, and when it is good or bad. Consider some possibilities.

  1. When a president engages in an action that is legally questionable, future presidents will find it easier to engage in the same action, but it must be the same action. For example, President Obama’s deferral order sets a precedent for just that—deferral orders in the immigration context. President Trump can do the same thing, but why would he?
  1. Future presidents will be able to engage in roughly comparable actions in different settings. President Trump will be able to defer action against corporate tax law violators, for example. But how would this work? If Trump said that he can defer action against corporate tax law violators because Obama deferred action against immigration law violators, would anyone really say, “well, then, okay”?
  1. Future presidents will be able to engage in executive actions that are unrelated. President Trump will be able to impose the death penalty on cop killers, as he has proposed, even though this is not deferral of prosecution or any other executive action that is supported by precedent, but an affirmative act that would violate deeply rooted constitutional norms. This is even less plausible than #2.
  1. Or—future presidents will not obtain any additional power whatsoever, or will even lose power. Some commentators claim that George Bush’s national security-related executive actions (surveillance, torture) provoked a backlash, making it more difficult rather than easier for future presidents to stretch the law in the area of national security. If a Republican president says he can defer action because Obama did, won’t people say—but you said that Obama acted illegally?

No one understands how unwritten constitutional norms develop. A common idea is that norms of reciprocity prevail throughout the political system. If Democratic Senators obstruct a Republican president’s appointments, then Republican Senators will obstruct appointments when a Democratic president comes to power—and vice versa. But are these norms of reciprocity powerful or weak?

Another theory is that it may be easier, as a political matter, to defend an action—like a military intervention without congressional support—if the president can point to a like action of an earlier president, especially an earlier president of the opposite party. But are these arguments really effective? Hard to know.

By the way, Democrats should consider one other possibility—that the next president (or the next several presidents) will be a Democrat. If that is the case, then Obama’s actions that expand executive power will benefit Democrats, not Republicans, in the near future. And a last thought: you might think that a Congress of either party or a divided party might cause mischief relative to even a Republican president. To evaluate Obama’s precedent-setting actions, you need to take all of these factors into account.

But President Trump couldn’t exclude Muslims by himself, could he?

Wouldn’t he need to ask Congress to pass a new statute that authorized him to block Muslims? Nope.

Immigration law gives the president more than enough authority to deny entry to classes of people who would otherwise be allowed into the country. From 8 U.S.C. 1182, the following aliens are inadmissable:

  • “An alien whose entry or proposed activities in the United States the Secretary of State has reasonable ground to believe would have potentially serious adverse foreign policy consequences for the United States is inadmissible.”
  • “Any alien who the Secretary of State, after consultation with the Attorney General, or the Attorney General, after consultation with the Secretary of State, determines has been associated with a terrorist organization and intends while in the United States to engage solely, principally, or incidentally in activities that could endanger the welfare, safety, or security of the United States is inadmissible.”
  • “Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.”

The provisions leave it to the president and his subordinates to determine who is a threat and who isn’t. But doesn’t the Constitution limit the president’s power to use these sections? The relevant case is Kleindienst v. Mandel from 1972, in which the Supreme Court ruled that the Attorney General acted lawfully by denying entry to a Marxist journalist because of his political beliefs. The Court said:

In summary, plenary congressional power to make policies and rules for exclusion of aliens has long been firmly established. In the case of an alien excludable under s 212(a)(28), Congress has delegated conditional exercise of this power to the Executive. We hold that when the Executive exercises this power negatively on the basis of a facially legitimate and bona fide reason, the courts will neither look behind the exercise of that discretion, nor test it by balancing its justification against the First Amendment interests of those who seek personal communication with the applicant. What First Amendment or other grounds may be available for attacking exercise of discretion for which no justification whatsoever is advanced is a question we neither address or decide in this case.

Courts and commentators have disagreed about the precise meaning of this language. And under some interpretations, Trump would lose. But his argument is not a bad one. President Trump could certainly argue that the “Muslims-are-a-threat” reason is “facially legitimate and bona fide.” Indeed, the post-9/11 sweeps of Muslim as well as Arab men relied on just such an assumption. That Trump singles out a religion rather than a set of political expressions could conceivably be a distinguishing factor, but just how much of a threat is a Marxist intellectual, after all?

The bottom line: if you (like me) don’t want Trump to block Muslims from entering the United States, then stop him from getting elected president. Don’t depend on the Constitution, Congress, or the courts.

Is an immigration ban on Muslims unconstitutional?

Probably not. The Supreme Court has held consistently, for more than a century, that constitutional protections that normally benefit Americans and people on American territory do not apply when Congress decides who to admit and who to exclude as immigrants or other entrants. This is called the plenary power doctrine. The Court has repeatedly turned away challenges to immigration statutes and executive actions on grounds that they discriminate on the basis of race, national origin, and political belief, and that they deprive foreign nationals of due process protections. While the Court has not ruled on religious discrimination, it has also never given the slightest indication that religion would be exempt from the general rule.

There is even precedent for Trump’s plan. In 1891, Congress passed a statute that made inadmissable people who practice polygamy (directed, at the time, at Mormons), and in 1907 extended this ban to people who “who admit their belief in the practice of polygamy.” While Congress later repealed the latter provision (the former seems to be still on the books), no court–as far I know–ruled it unconstitutional.

The plenary power doctrine is universally loathed by scholars and some have argued that it is effectively a dead letter. But any honest answer to a journalist’s question about whether Trump’s plan to ban Muslim immigration is unconstitutional should start with the plenary powers doctrine, and observe that it would be an uphill battle to persuade the Supreme Court to abandon a century of precedent. Unfortunately, that is not what scholars–who certainly know better–are telling journalists. They are likely being abetted by journalists and headline writers who don’t like the idea that Trump’s ban would be lawful. Not everything that is stupid or offensive is unconstitutional.

(N.B.: blocking American Muslims overseas from entering the country would certainly be unconstitutional, and blocking immigration by Muslims would raise complicated international-law questions.)

The “take my word for it” theory of separation of powers

With Congress supine and feckless, law professors committed to the rule of law have taken to arguing that executive-branch lawyers can be trusted to ensure that the president does not break the law. That’s the argument, for example, of Trevor Morrison, the dean of NYU Law School; Jack Goldsmith also made this argument, more or less, in his book, Power and Constraint.

But what if a “deeply-sourced” journalist named Charlie Savage writes a 700-page book that shows that executive branch lawyers, in almost all cases, failed to stop the president from breaking the law? Then you double down:

Here’s Jack:

What never shows up in books like Power Wars, and what the public never sees, are the scores of times that lawyers preempt operations and policies – in a phone call, conversation, or preliminary meeting – that are clearly out of bounds.  Nor can we ever see the stream of dreamed-up and potentially useful operations and policies that never make it to a conversation because the policymaker knows that the answer will be “no” and thus never asks.  In these and related ways, law hems in the President’s decisonmaking by limiting the policy options that reach his desk.  A complete assessment of the effect of law on senior national security decisionmaking would need to compare the questionable approvals and fudges we see against the much-harder-to-perceive instances that law constrains by limiting possible courses of action.  Reporters cannot easily get at this latter type of information.

And here’s Oona Hathaway (also a former executive-branch lawyer):

Savage must get his information from sources, and those sources often have an agenda or a limited view of the issue at hand. (They are also, it bears mentioning again, often breaking their legal and ethical obligations not to disclose classified or confidential information.) That means that the glimpse he is offered is necessarily a skewed one. Add to this the fact that those who talk to Savage are, it seems, largely those at or near the top of the totem pole. Officials who labor day-in-and-day-out on the issues Savage covers — and who have an immensely important role in shaping options and strategies — receive almost no mention. It’s hard to fault Savage for this — he can’t possibly speak to everyone, and he clearly spoke to a huge number of insiders. But it does mean that he has a partial view of how the lawyering process works that doesn’t necessarily reflect the gritty day-to-day reality inside the agencies, where options and rationales are developed by lawyers, many of whom have been at the job for decades.

And, of course, Harold Koh, most pithily (albeit in Savage’s paraphrase), who says it is

easier to take purist stances from the faculty lounge than from a position of responsibility.

All of this bears only one interpretation. For the public and commentators who wonder whether the president is constrained by law, the answer is: “trust us,” the executive-branch lawyers.

The Executive Unbound, revisited

Since we published The Executive Unbound: After the Madisonian Republic in 2011,

  • the President has extended the 2004 AUMF to include ISIS and engaged in a “Forever War” without congressional participation;
  • taken military action in Libya, on grounds widely condemned as a transparent circumvention or violation of the War Powers Resolution, while ignoring the contrary views of the Office of Legal Counsel;
  • moved aggressively to regulate greenhouse gas emissions, through the EPA, under the authority of a statute enacted in 1970 that says little of relevance, after Congress refused to enact a regulatory scheme for climate change;
  • unilaterally announced sweeping immigration enforcement policies that effectively legalized millions of aliens, and that closely tracked the terms of a bill that Congress refused to enact;
  • unilaterally delayed rulemaking under the Affordable Care Act, despite unambiguous statutory deadlines, and funded implementation of the Act by diverting appropriations expressly devoted to other purposes;
  • missed dozens of statutory deadlines under Dodd-Frank;
  • refused to defend the constitutionality of federal statutes, and encouraged their invalidation by the courts;
  • used ‘waiver’ authority to dilute or undermine the work participation requirement of the Temporary Assistance for Needy Families program;
  • used ‘waiver’ authority in No Child Left Behind, which was included in the statute to allow state experimentation, to force states to adopt new education standards not embodied in the law;
  • justified recess appointments by a constitutional theory – upheld in principle although not as to particulars by the Supreme Court – that weakens the control of the Senate over the allocation of high offices in government;
  • defied an express statutory command, and by so doing obtained, for the first time in the Nation’s history, a Supreme Court decision recognizing exclusive and inherent presidential power to recognize foreign governments;
  • refused to enforce federal drug laws against marijuana users in states that legalized marijuana.

Sovereign is he who decides on the exception.

— Eric Posner & Adrian Vermeule

More thoughts on Judge Hanen’s opinion on DAPA

At Slate. I thought the opinion was interesting but unpersuasive. Josh Blackman, by contrast, likes the opinion but not because of what it says:

Judge Hanen, however, showed his hand by explaining that the president had engaged in a “complete abdication” of the law. Rather than enforcing the law, Hanen saw Obama’s actions as making law: The executive is “is not just rewriting the laws; he is creating them from scratch.” This is the role of Congress, not the president.

So Blackman thinks that Judge Hanen’s real objection to DAPA is based on the Constitution, not the APA. He may well be right. But then why didn’t Judge Hanen rule on the constitutional merits? Probably because if he had, the opinion would have been even weaker than it was.

Podcast on Charlie Hebdo and freedom of speech

I discuss this topic with Jonathan Rauch, with Jeffrey Rosen moderating. Rauch and I disagreed about (almost) everything.

1. Should The Times have republished the latest Charlie Hebdo cover?

Rauch: yes, because of its news value.

Me: no, if The Times reasonably feared retaliation against its reporters. I also say that the news value of the cover is minimal because anyone can see images of it on the web.

2. Did European media that failed to republish the offending Charlie Hebdo cartoons act wrongly?

Rauch: not if they reasonably feared retaliation, but still it would have been better if everyone had republished in order to strengthen free speech norms.

Me: not if they reasonably sought to avoid provoking additional violence, against themselves or others.

3. Does the Charlie Hebdo attack show that European hate-speech laws are a bad idea?

Rauch: hate-speech laws cannot be enforced neutrally, resulting in hypocrisy and chilling effects. Hate-speech laws do not improve safety.

Me: if hate-speech laws had been enforced against Charlie Hebdo, then this attack would not have happened. So at a minimum, there is some evidence that they reduce violence. Rauch is right that hate-speech laws cannot be applied “neutrally.” But they can be enforced sensibly, to censor low-value speech that offends groups to the extent that violence may result.

4. Should Europe adopt U.S.-style free-speech law?

Rauch: yes, noting that we have more social peace in the United States than in Europe, and arguing that the First Amendment may account for this. People have no incentive to use violence to force the government to censor offending speech because they know that the First Amendment blocks the government from accommodating them.

Me: [bungling my description of French law, but anyway–] no, the U.S. is an outlier, strongly suggesting that what works for us (or currently works for us) is not ideal for other countries. Specifically, First Amendment law in the United States reflects various pragmatic compromises among groups in a pluralistic society that are different from the compromises that must be made in other countries, which have different groups with different views and interests. Our tendency to think that U.S. law reflects universal principles should be resisted.

5. Will the Charlie Hebdo attacks strengthen freedom of speech in France?

Rauch: yes, as illustrated by the marches and rallies, the outpouring support for Charlie Hebdo.

Me: no, the government will crack down on hate speech in order to reduce violence, and in a (perhaps futile) effort to repair the frayed bond between French Muslims and the state.

The Executive Unbound, environmental ed.

From the NYT:

President Obama could leave office with the most
aggressive, far­-reaching environmental legacy of any occupant of the White House. Yet it is very possible that not a single major environmental law will have passed during his two terms in Washington.

Instead, Mr. Obama has turned to the vast reach of the Clean Air Act of 1970, which some legal experts call the most powerful environmental law in the world. Faced with a Congress that has shut down his attempts to push through an environmental agenda, Mr. Obama is using the authority of the act passed at the birth of the environmental movement to issue a series of landmark regulations on air pollution, from soot to smog, to mercury and planet-­warming carbon dioxide.