The Emergency Order, Bad Arguments, and Logical Fallacies

Now that President Trump has issued the emergency declaration on the wall, I thought I would reiterate something I said multiple times during the Obama administration: there is no “The President thinks something is really really important but Congress won’t act so the President just gets to do whatever he wants” clause in the constitution. The Veruca Salt standard simply doesn’t exist. While I think the Democrat opposition to the wall is overwrought (and indeed now some have even indicated they want to remove the border barriers that doers exit), President Trump has had ample time to secure additional border wall funding. A changeover in Congressional leadership doesn’t constitute a national emergency.

I wanted to take the bulk of this post to address some of the responses I’ve seen, both in opposition and in defense of this action.

I’ll start with one argument made by opponents of the move that I deem to be overstated. They argue that this will set a precedent for future Democratic presidents to declare national emergencies over, say, climate change and healthcare*. There is a little bit of truth to this – as I said on twitter, each new precedent has a bit of snowball effect. But when looking at the cast of characters which constitutes the current Democratic presidential field, who doesn’t think that one of them will do this anyway? President Obama’s DACA order was arguably even less meritorious than President Trump’s actions here (where exactly was the crisis in not providing legal status to the children of illegal immigrants?), and it was President Obama who uttered his petulant “I’ve got a pen and a phone” threat when he grew frustrated with the constitution’s pesky limitations. If anything, Democrats have grown even more radical, and I don’t think President Trump increases the likelihood of future despotic actions.

* I’ve seen more than a few tweets in recent days about 28 million uninsured Americans being a graver national emergency. But I’m confused: wasn’t Obamacare supposed to solve this problem? I thought Obamacare was a “big fucking deal.” Well if there are still 28 million uninsured, maybe it was really nothing more than a “little useless clusterfuck.”

The flipside of the above is the argument from defenders of the administration is that we already have precedent, so Donald Trump’s actions are not unprecedented. Again, there’s an element of truth here, but that doesn’t make right-wing defenders of the president any less hypocritical. If you were (rightly) crying bloody murder every time President Obama used his pen and picked up his phone, you cannot now defend President Trump doing the same. If the “but daddy I want it” justification for emergency declarations is pathetic, even worse is the “but mommy he did it first” defense of the declaration. Speaking of setting precedents, you now have sent a clear message that the right-side of the political spectrum is cool with unilateral, unconstitutional, and unlawful presidential declarations so long as the end-result is fine by you. That seemingly less than about ten percent of the American public consistently even cares about constitutional law is indeed depressing.

As for the unlawful part of this, defenders say that “hey, Congress set us on this path, and the president is just doing what’s in his legal authority.” I’m not one to shy away from blasting Congress for cowering in fear to assert its rights as the superior  branch of the federal government, but I am not persuaded that the president is acting within the very generous parameters laid out by Congress. As David French explains in National Review, this is an abuse of the statutory authority given away by Congress.

Look at the list carefully. He’s listing criminal challenges. He’s listing humanitarian challenges. He’s listing the problems on the border that have existed for decades and that Congress has enacted comprehensive statutory schemes (including funding civilian wall construction and civilianimmigration authorities) to combat. Gang activity and drug-smuggling are grave problems, but they are crimes, not acts of war. The declaration doesn’t even try to argue that there is a precise, unique challenge that only the military can counter — such as a national disaster that would require the use of the military’s unrivaled heavy-lift capabilities or its immediate access to manpower.

Instead, the declaration cites the wasteful 2018 border deployment, but that is only evidence that the military has been used, not that it must be used. If the mere fact of a deployment were proof of the necessity of military intervention, then there would be no limiting principle on a president’s action. The message is clear — the military is “required” simply because he says it is required.

I was called a “neocon” on Twitter for having the temerity to argue that the president has no constitutional or statutory authority to justify issuing this emergency declaration. It is a sign of the lack of intellectual heft of much of the populist right that they believe defending constitutional norms is a sign of “new” conservative thinking.

I guess I could just sit back and laugh when President Harris issues a presidential emergency declaration shutting down the health insurance industry and forcing all Americans onto Medicare. It could be humorous to see the contortions of the overwhelming majority of Americans suddenly switching their opinions on such declarations. Instead I’ll just weep as our constitution becomes all but a dead letter.

That’s Not How the Constitution Works, Mr. President

Hey guys, do you recall the “if Congress isn’t being reasonable, the President gets to do what he wants” clause of the U.S. Constitution? I don’t, but evidently President Trump has access to the secret Constitution.

President Trump on Wednesday resumed his threat to bypass Congress and fund the construction of a border wall by declaring a national emergency if Democrats maintain their opposition to his funding demands.

“I have the absolute right to do national emergency if I want,” Trump told reporters during a White House pool spray. “My threshold will be if I can’t make a deal with people that are unreasonable.”

As AP reminds us earlier in his post, this is the same exact rationale President Obama employed with DACA. It was outrageous then, and it is outrageous now for President Trump to consider using executive action here.

President Obama threw quite a few presidential tantrums – the equivalent of Veruca Salt saying “But Daddy I want it” – whenever Congress didn’t give him what he wanted, so he acted unilaterally and without constitutional sanction, and fortunately he was slapped down quite a few times, and unanimously so, by the Supreme Court. Sadly, President Obama is not the only president to think that “urgent” matters give him unprecedented authority. Blame Congress both in its dithering and in its unwillingness to slap down presidents if you want – I certainly do – but it takes one to do the unconstitutional tango.

It doesn’t matter how important a given president thinks the issue is. There are clear mechanisms for pursuing a given action, and the president does not just get to act unilaterally in most cases just because Congress can’t agree on a given course. Sometimes executive orders are given under rightful circumstances. No one in their right mind should think we’ve reached such a crisis point of national security that the president should be able to go all Samantha on Bewitched, blink his eyes, and get what he wants.

And if you do think the president would be acting justly in this matter, I hope you take the same position when a future Democrat president declares that climate change is the moral equivalent of war and he can thus shut down all coal and natural gas plants on his say-so.

A Civics Lesson for Our Speaker

So Nancy Pelosi recently had this to say:

When Pelosi was asked whether she considers herself equal to Trump, she said, “The Constitution does,” The New York Times reported.

Pelosi’s position as Speaker makes her the second in line for the presidency should something happen to Trump, after Vice President Pence, according to the Constitution.

There are two ways to intepret Pelosi’s comment, and neither one is flattering regarding her understanding of the constitution. The more charitable interpretation is that she means the legislative branch is co-equal to the executive. In this case, she would be underestimating her own branch’s standing. Jay Cost and Luke Thompson have a done a fantastic job on their Constitutionally Speaking podcast to debunk this long-held cliche about “co-equal” branches. If you have spent any time examining the political thought of the Framers, you’d immediately be disabused of the notion that they thought the three branches were equal. The legislative branch, as the branch representing the people, was held to be the superior branch. One can look at the powers delegated to each branch and recognize the implicit belief in legislative superiority. What the constitution expounded was not “separate but equal,” but rather the idea that each branch had defined roles, with some amount of intermingling powers as a “check” on those powers. But the idea they were equal in weight is not supported by a reading of the constitution or an understanding of the history.

If Pelosi is instead asserting that her position is equal to the presidency itself, well that’s just absurd on its face. That the Speaker comes second in the line of succession is proof not of its equality, but of its inferiority to the presidency. The Speakership is barely mentioned in the constitution other than to define how the Speaker is chosen. The Speaker of the House’s powers are largely a creation of House rules, not of the constitution itself. The Speaker cannot issue executive orders, appoint constitutional officers, make war, or any of the other myriad constitutionally defined powers of the executive. While Congress as a whole may be superior to the Executive, the Speaker of the House alone is not even remotely within the president’s orbit in terms of actual power.

We’re already off to a wonderful start in Nancy Part II.

 

 

What’s a Little Article V Among Friends?

 .  . . and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate. – Article V, U.S. Constitution

The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. – 17th Amendment of the U.S. Constitution

Even a curmudgeon like me will concede that not all debates over constitutional meaning are crystal clear. Interpreting original meaning (or intent, if you prefer) can be difficult. Trying to determine whether the freedom of speech clause of the first amendment really applies to political donations, or whether the first amendment even applies to the federal government at all, is not necessarily black and white.

But then there are certain clauses which are really not open to interpretation. There’s no creative way to argue that a 31-year old man born and naturalized in France is eligible for the presidency. Similarly, the equal composition of the Senate is laid out in black and white throughout the constitutional text. More importantly, this is one element of the constitution that cannot simply be amended by the traditional process. As laid out in Article V of the U.S. Constitution, no state can be deprived of equal suffrage in the Senate without its consent. This means that for all practical purposes equal suffrage in the Senate cannot be altered unless every single state assents to this change, which really means that equal suffrage in the Senate cannot be altered. This would seem pretty straightforward.

Not if you’re a writer for the Atlantic with a day job teaching Legal Studies at Business Ethics at Wharton, because Eric Orts has a proposition for you: we’ll just legislate this pesky hindrance away. No, seriously:

There’s a better, more elegant, constitutional way out. Let’s allocate one seat to each state automatically to preserve federalism, but apportion the rest based on population. Here’s how.

Start with the total U.S. population, then divide by 100, since that’s the size of the current, more deliberative upper chamber. Next, allocate senators to each state according to their share of the total; 2/100 equals two senators, 3/100 equals three, etc. Update the apportionment every decade according to the official census.

In the new allocation, the total number of senators would be 110. The total is more than 100 because 10 of the smallest states have much less than 0.5/100 of the U.S. population but are still entitled to one senator each.

So how do you get out of the clear constitutional prohibition against this change? Legislation, of course:

First, consider that Article V applies only to amendments. Congress would adopt the Rule of One Hundred scheme as a statute; let’s call it the Senate Reform Act. Because it’s legislation rather than an amendment, Article V would—arguably—not apply.

Second, the states, through the various voting-rights amendments—the Fourteenth, Fifteenth, Nineteenth, Twenty-Fourth, and Twenty-Sixth—have already given their “consent” by directing Congress to adopt legislation to protect equal voting rights, and this delegated power explicitly applies to “the United States” as well as the states. The Senate Reform Act would simply shift seats according to population. No state or its citizens would lose the franchise.

Note that even states that did not ratify the voting-rights amendments have, functionally, consented to them, and thus also to the constitutional logic supporting a Senate Reform Act. As Justice Clarence Thomas explained in 1995, “The people of each State obviously did trust their fate to the people of the several States when they consented to the Constitution; not only did they empower the governmental institutions of the United States, but they also agreed to be bound by constitutional amendments that they themselves refused to ratify.”

There are so many logical problems with this that you can drive a truck through them, and fortunately Charles Cooke has done the job natural-born Americans won’t do:

Never in the history of the English language has the word “arguably” done as much work to support the sentences around it. And never, ever has it been so cruelly exposed to ridicule. On Orts’s rationale, Congress could amend any part of the Constitution by legislation. Want to abolish the First Amendment? Just pass the repeal through Congress on a simple majority vote. Easy! That the various branches of government are formed by the Constitution itself — and, by extension, that they cannot amend their own structure without that Constitution being amended — is the most elementary rule in all of American law. It cannot be undone by wishful thinking. Indeed, if anything, the Senate’s structure is the most permanent variable in the entire U.S. Constitution, given that it not only enjoys the same protection as everything else, but has an extra layer on top that ensures that any alteration be made with the consent of those directly affected. For Orts to treat the most heavily guarded item within the document as if it were the most easily circumvented is nothing less than extraordinary, and suggests to me that he believes his audience is stupid.

As to point two:

Even for those of us who are accustomed to learning in awe about the many innovative policies the architects of the Reconstruction Amendments intended secretly to mandate in the future, this one is a doozy. Insofar as it can be followed, Orts’s case here is that (a) the Constitution protects equal voting rights, (b) that, in his view, the Senate does not protect equal voting rights, so (c) the Constitution mandates that the Senate be altered — presumably via the “arguable” legislative method outlined above. Historically, legally, and linguistically, this approach is bizarre: If the framers of the “Fourteenth, Fifteenth, Nineteenth, Twenty-Fourth, and Twenty-Sixth” amendments had wanted to abolish or amend the Senate, they would have done so — or, rather, they wouldn’t have done so, because their amendments would have failed spectacularly at the first hurdle. Worse still, it is extremely dangerous, for if Orts’s approach were to be indulged, we would quickly move so far beyond both the security of both stare decisis and plain language as to invite endless, untrammeled chaos. Why? Well, because one can play his game with anything. First, you find a part of the Constitution that guarantees a favored end — say, “establish justice,” “promote general welfare,” or guarantee “freedom of the press”; then you contend that this end is incompatible with any other provision you happen not to like; and, finally, you explain that the provision you dislike is itself unconstitutional. At best, this method represents cheap sophistry. At worst, it represents anarchy. Again: “Our Constitution is more malleable than many imagine” is a euphemism for “We must ignore the law as it is written.”

Now take it home Charles:

But we must not, of course. Rather, we must ignore Orts, and we must push back against people who believe their job is to rewrite history and to misinform on a grand scale. I can see why certain professors feel the need to do this: Absurd as his cases always are, my proverbial Grunton Rabitini of Soiled Woods College has his words repeated widely by the unprincipled and the uninformed. But I cannot see why The Atlantic needs to publish it. We have a civics problem already in this country. Professor Orts and his editors just made it that little bit worse.

Unbelievably, Orts tried to fight back on Twitter, spending most of the time (incorrectly) complaining that Cooke failed to substantively address any of his points, relying instead on personal attacks, even as Orts accuses Cooke of taking his position because of “white privilege.” Even by the usual dumb standards of Twitter it was pretty horrific.

It’s sad to recall that Orts is an actual professor who teaches college students, because his understanding of constitutional law couldn’t be much dimmer than his average student.

Against the Filibuster

There’s a meme that goes around Twitter every now and again: express your unpopular opinion. Based on conversations I’ve had through the years, my views on the filibuster might be unpopular with large swathes of the right and probably even the left.

I’ve never been comfortable with the filibuster. The 60-vote threshold seemed like an especially onerous and unfair threshold when it came to judicial appointments, and I advocated nuking the filibuster long before Harry Reid helpfully did so a few years ago. Therefore, I was happy when Harry Reid and the Democrats abandoned the judicial filibuster, and not just because I knew then it would eventually come back to bite them on the ass.

But the filibuster’s artificial 60-vote threshold seemed unfair even when it came to ordinary legislation. While it is not unconstitutional, it is certainly an extra-constitutional mechanism. Sure, the Senate is free to set its own rules, and the constitution’s language doesn’t prohibit a higher floor either in the context of the Senate’s advice and consent role or for legislation to be deemed as passed by the Senate. Yet it seemed then, and still seems now an extra barrier to getting things done.

Conservatives in particular view the filibuster as a device that works in the interests of limited government. And whichever party happens to be the minority at the moment values the filibuster as a mechanism to help preserve their interests. But the constitution itself is already a document designed to slow the machinery of government. The filibuster is a cheat, and arguably does more to diminish reliance on these other constitutional designs. For instance, the higher threshold to get legislation through the Senate could lead (and has lead) presidents to make end-runs around Congress. In these cases, the filibuster not only doesn’t prevent whatever ill-considered action from going through, it promotes other unconstitutional behavior from the president. It also eliminates the opportunity for compromise that would minimize the potential deleterious effects of ill-advised action.

The filibuster is also unevenly applied. Depending on the specific type of legislation under consideration, it may not even be applicable. Now it no longer is available in the context of judicial nominations. This just leads to more parliamentary maneuvering that further undermines faith in the legislative process.

As alluded to above, reliance on the filibuster draws attention away from other constitutional mechanisms designed to restrain the government. The concentration of power in the executive and judicial branches is a much more serious threat to our constitutional order. If anything, the filibuster might prevent reforms from being enacted to address those concerns. The filibuster, especially if a conservative majority ever emerged in the Senate (I won’t hold my breath), actually would become a tool of the very administrative state we’re supposed to be fighting.

The filibuster is really designed to ensure debate takes place on contentious issues. I would have no problem with a system in which failure to invoke cloture simply meant debate would continue for some amount of time. But real debate would have to take place. Then, after the pre-determined period elapsed, a vote would occur regardless of whether the 60-vote threshold is met.

I thus have no problem with the filibuster as a means of slowing down the process to allow for more debate and potential compromise. It should not be an artificially high upper threshold meaning nothing gets by the Senate without a super-majority.

The Left’s Ill-Gotten Gains

I’m short on time for the next couple of days, so I won’t be able to post anything of substance. In the meantime, here’s a Kevin Williamson post which, as almost always, cuts to the heart of a matter. The left has been far more reliant on the Court to uphold rights it views as intrinsic, and that’s what scares them so much about the future of the Court.

And that is what terrifies the Left about the current direction of the Supreme Court. Roe v. Wadere presents ill-gotten political gains. While the NRA got a big win in the courts a few years back — one entirely in keeping with the actual text of the Constitution as it exists, not as progressives wish it were — it mainly has advanced its agenda and defended its agenda and defended its gains through ordinary democratic politics. It is not, contrary to the myth, a particularly big political donor or spender (not even in the top 100 last I checked) that gets things done by throwing money around. Until its recent (and, in my view, ill-advised) metamorphosis into a full-spectrum culture-war outfit, the NRA was a very disciplined and narrowly focused single-issue outfit, which made it truly bipartisan: Harry Reid may have been a train wreck on 99.99 percent of the issues, but he was solid on guns, and the NRA credited him for that.

NARAL and Planned Parenthood, who together form what we might understand as the NRA of abortion rights, are above all things terrified that they might be reduced to ordinary democratic political activism in a post-Roe world. They want to defend those ill-gotten gains, and they understand that the American consensus on abortion is a lot closer to the thinking of, say, George W. Bush than it is to that of the butchers’ guild. There is volatility in the polling, but by and large Americans take a pretty liberal view of abortion in the first trimester and in cases involving rape, incest, or serious threats to the health of the mother; they are open to many kinds of restriction and take a much more restrictive view as the pregnancy advances. If democratic preferences prevail, it is likely that U.S. abortion regulation will end up looking something more like what prevails in much of Europe. Not as restrictive as pro-lifers would like, but more restrictive than what we have.

Read the rest at the link I provided.

Rethinking Jeff Flake’s Rethinking

John McCormack credits Jeff Flake for helping to clear Brett Kavanaugh’s name through his push for a one week pause in the proceedings.

Shortly after 11 a.m. on Thursday, October 4, Democratic senators Dianne Feinstein and Chuck Schumer spoke to the press following a confidential briefing about the FBI’s supplemental background check. While the senators were limited about what they could say, Feinstein focused first on the fact that neither Kavanaugh nor Ford, who testified publicly for hours last week, were interviewed by the FBI.

If the FBI investigation had turned up some groundbreaking new information, that is not the kind of thing you’d expect the Democratic senators to focus on.

The FBI interviewed all the alleged party attendees—Ford’s lifelong female friend Leland Ingham Keyser, Kavanaugh friend P.J. Smyth, and alleged accomplice Mark Judge. Keyser had previously said she recalls no party at which Kavanaugh was present and does not know Kavanaugh. Schumer and Feinstein gave no indication Keyser has changed her story.

The FBI also interviewed Chris Garrett, a person Ford went out with around the time of the alleged assault in 1982 and Ford’s only known social connection to Kavanaugh and Judge. The FBI also interviewed Tim Gaudette, who hosted a July 1, 1982, party that has been the focus of much speculation. Schumer and Feinstein gave no indication those interviews turned up groundbreaking information.

Senate Judiciary Committee chairman Chuck Grassley said in a statement: “This investigation found no hint of misconduct and the same is true of the six prior FBI background investigations conducted during Judge Kavanaugh’s 25 years of public service.”

Republican senator Susan Collins of Maine, a key undecided vote, said this morning: “It appears to be a very thorough investigation.”

Indeed, the constant goalpost moving is a sure sign that the FBI investigation turned up nothing to corroborate Ford’s allegations, and other developments suggest Ford’s case against Kavanaugh is more suspect than we thought even a week ago.

So, did Flake wind up helping Kavanaugh, or at least did he help engineer something which will at ease some of the bitter feelings against him? I am not sure about that. Susan Collins is set to announce her vote, and Flake has already said he is now a yes (though he’s said that before). If Collins and/or Manchin vote for Kavanaugh, then he will be confirmed despite Lisa Murkowski’s no vote. At the very least, then, this pause didn’t hurt Kavanaugh.

But did it really make a difference? Did the general public’s opinion of the situation change appreciably? McCormack ably lays out the various ways the case against Kavanaugh has crumbled, but how many people are paying close attention and had their opinions change? That may be unknowable.

At the very least, I have been moved enough to delete an earlier post about Flake’s actions from a week ago. It was much too snarky and condescending, and in retrospect I let emotions run away from me.

Oddly, it was listening to Rush Limbaugh that caused me to delete the post. I have listened to Limbaugh only a handful of times in the past three years, and just happened to catch his program for a few minutes today. He was actually very understanding towards Flake, Collins, and Murkowski. The three of them have been inundated with calls, emails, tweets, etc, and they have received vile threats against them and their families. All Republicans have, but these three have borne the brunt of most of the anger. I can’t imagine what it would be like to face that much hate, and to receive credible threats against one’s security.

Buckling to the angry voices – as Flake may have done after being confronted by angry protesters – does embolden those angry voices, but I also haven’t been in his shoes. I’m not totally convinced Flake should receive credit for his seeming change of heart, but I’ll give him enough benefit of the doubt to back off my earlier denunciation.

Orval Faubus Comes to California

Though certainly not nearly a sentiment shared by most conservatives, some have suggested that the proper response to judicial overreach is to simply ignore the courts. In other words, for example, Donald Trump should have made like Andrew Jackson when his travel ban was put on hold and declared that “The Ninth Circuit has made its decision, let them enforce it.”*

More popular on the right – though again, not necessarily a majority opinion – is the concept of nullification. According to this theory, states are within their constitutional rights to ignore federal law that is facially unconstitutional. Thomas Jefferson justified this concept in his draft of the Kentucky Resolutions  (in response to the alien and sedition acts), though Madison did not go so far in the Virginia Resolutions.

Both sentiments are put forward as proof as the recklessness of the right. Furthermore, the intransigence of certain states righters is historically symbolized by the likes of Orval Fauvus, who defied the Supreme Court’s order to desegregate public schools. Thus these concepts are tied with the forces of evil and racism.

So which state is actively engaged in both nullification and defiance of court orders? Alabama? Mississippi? Texas? Look away, look away, look away, it’s California.

That’s right. Not only is California acting in de facto nullification by prohibiting all local governments from cooperating with federal officials to uphold immigration law, the state is now ignoring a court order barring the state from enforcing this statute upon charter cities who refuse to be sanctuary cities.

Despite an Orange County judge’s ruling this week that California’s so-called sanctuary protections for immigrants who are in the country illegally are unconstitutional as they apply to charter cities, state Atty. Gen. Xavier Becerra said Friday that the state would continue to uphold its laws.

“Preserving the safety and constitutional rights of all our people is a statewide imperative which cannot be undermined by contrary local rules,” Becerra said in a statement. “We will continue working to ensure that our values and laws like the California Values Act are upheld throughout our state.”

SB 54 is the law in question here, and I don’t see how it can be viewed as anything but nullification. In essence, California is saying it will not comply with federal law. Or, to put it a bit differently, it will refuse to cooperate with enforcement of federal law. Not only that, but it has prohibited municipalities from even thinking of cooperation.

More troubling, though, is the state’s ostentatious “eff you” to the ruling issued last week exempting charter cities in the state from the law. Not only will the state refuse to comply with the feds, it’s bluntly saying that no court will make it respect the will of resident in any locality which chooses not to participate in California’s defiance.

Most Californians vociferously denounce the supposed tyranny of President Trump, yet he has done nothing even remotely as brazen as this.

I must also chuckle at Becerra go on about “preserving” the “constitutional rights” of all Californians. So the constitutional rights of illegal aliens must be upheld, even though they possess no such rights. As for the lawful citizens of their state, such constitutional guarantees as the right to a republican form of government can safely be ignored.

And people wonder why much of the country looks upon California with disdain.

*It is not certain Andrew Jackson actually said this famous quote about Marshall, but the sentiment was a historical fact.