Friday, January 19, 2018

Review of "The Heart of the Constitution"

Gerard N. Magliocca

The Washington Post is running this review of my new book in its Sunday edition.

Tuesday, January 16, 2018

Donald Trump and the Declaration of Independence

Mark Graber

The Declaration of Independence occupies a far smaller place in Donald Trump’s public rhetoric than in the public rhetoric of any other modern president.  Presidential references to the Declaration of Independence or presidential quotations of such phrases as “all men are created equal” rose steadily from 1933 to 2016, in part because presidents gave an increasing number of recorded speeches and issued an increasing number of public proclamations.  President Barack Obama mentioned or quoted from the Declaration of Independence an average of 31 times a year when he was in office.  Donald Trump, on a generous interpretation, mentioned or quoted the Declaration only 15 times during his first year in office, despite producing as much paper as any other president.  Unlike past presidents, the phrase “consent of the governed” never drips from his tongue, he never mentions “self-evident truths,” and barely makes reference to “inalienable rights.”

Trump’s use of the Declaration is far more vacuous than any other contemporary president.  All presidents make symbolic use of the Declaration.  German-American Day proclamations note the signers of the Declaration born in Germany.  Nevertheless, all modern presidents before Trump put the Declaration at the heart of crucial policy arguments.  The second president George Bush repeatedly invoked the Declaration when arguing against abortion rights and distinguishing American commitments to universal human rights from the commitments of nations in the “axis of evil.”  Obama repeatedly invoked the Declaration when argument for gay rights, economic equality and the rights of immigrants.  All presidents since Franklin Roosevelt repeatedly asserted the centrality of the Declaration to American national identity.  Trump’s references to the Declaration, by comparison, are largely pro forma.  He does not mention that American identity is defined by commitment to the principles stated in Jefferson’s second paragraph.  He rarely refers to the Declaration when making arguments for particular policies.  Trump makes substantive references to the Declaration only when claiming Jefferson’s reference to “Creator” supports the presence of religion in public life.

Whether the Declaration remains a revolutionary document in the United States seemed doubtful before Trump took office. The Declaration’s assertion that the point of government was to protect individual rights, promote equality and serve the public good was highly contested in 1776.  Many people then thought the point of government was to protect the interests of a few families, promote the one true religion, serve the master race or rule the world.  By the end of the twentieth century, however, most Americans rested comfortable in the notion that the Declaration had won the day, that arguments about the purpose of government concerned how best to protect individual rights, promote equality and serve the public good, not whether government ought to pursue different ends.  This agreement on what might be called liberal/republican constitutional ends, explains why both Republicans and Democrats in the White House each made free use of the Declaration when championed their particular version of liberal republican constitutionalism.  The Declaration did not take sides in public debate prior to 2016, because all participants agreed on the Declaration's understanding of legitimate constitutional ends. 

Donald Trump’s public indifference to the Declaration suggests that this consensus on the purposes of government is not as broad as Americans might have thought during the Bush II and Obama presidencies.  Trump’s rare and vacuous references to Jefferson’s work suggest that he neither thinks that the Declaration establishes American governing purposes nor believes that adherence to the Declaration defines American national identity.  He purports to make “American great again” without understanding that American greatness lies in the national commitment to principles set out in the Declaration, a national commitment to the self-evident truths that “all men are created equal,” that all persons are “endowed by their Creator with certain inalienable rights, that among these are life, liberty and the pursuit of happiness,” that governments “deriv[e] their just powers from the consent of governed,” and that “it is the right of the people to alter or to abolish” any government that “becomes destructive of those ends.”

Monday, January 15, 2018

When Trump Denies Lying, Could He Be Telling the Truth?

Mark Graber

[From Dr. Julia Frank, Clinical Professor of Psychiatry]

Like political analysts, psychiatrists are interested  in statements that do not conform to consensual reality, or to put it plainly, lying. Political thinkers parse lies  for their identifiable strategic purpose: to conceal wrongdoing (“I did not have sexual relations with that woman” ) (Clinton, 4/8/2012) or to advance an agenda (“The murder rate in our country is the highest it has been in 47 years” ) (Trump 2/8/1027). Exposing  the truth effectively counters strategic lies.

But how do we understand the reflexive lies, easily and readily disproven, that spew from our president’s itchy twitter finger? Even when the evidence is incontrovertible, he sticks to his version of reality, about everything from the size of his inauguration crowd to his recent denial that he said what he said about Haiti and countries in Africa in front of an audience of US senators.

The question of why people from senators on down so readily accept, forgive and rationalize a leader’s lies is another legitimate focus of political analysis. As someone with professional license to think about non-rational motives for behavior, I am more interested in the question of whether Trump even knows he is lying.

Trump’s behavior is at least consistent with deficient capacity for mentalization. Mentalization is a newish concept in the psychotherapy literature, with implications for understanding socially undesirable and self-defeating behavior of many kinds. Moreover, high status strains the capacity for mentalization, even in those who showed no impairment before being elevated to positions of leadership.

Influential psychologists and psychiatrists define mentalization as the capacity to perceive and understand the difference between inner experience and the experiences of another person. The opposite is belief in an exact correspondence between one’s own mind and the world outside. None of us could live in the world if we did not reflexively credit our perception most of the time, but when experience contradicts perception, mentally healthy people adjust their inner reality to absorb new facts. By contrast, the ability to recognize when material or social reality contradicts perception or belief may be seriously deficient in people across a wide spectrum of mental disorders.

Irony, humility, and self-awareness flourish in the cracks between belief and outside reality. When no space exists, these qualities wither and die.  People with schizophrenia often lack a sense of humor. Therapists know not to try to make jokes when treating someone with a severe personality disorder. Famously unable to display humility, Donald Trump also seems to suffer from a serious irony deficiency, suggesting his capacity for mentalization falls well outside the range of normal.

Diminished capacity for mentalization may help explain how and why Trump lies so shamelessly.  People who cannot perceive the difference between what they believe and the world as it is lie without awareness that they doing so. Even while propounding wild untruths, this lack of awareness makes them seem authentic and sincere. People capable of doubting their own views, by contrast, risk appearing inconsistent or hypocritical. Deficient capacity for mentalization thus fosters a world of principled hypocrites and plausible liars.

Like every other mental quality, the capacity for mentalization presumably results from genetic endowment, modified by experience. Also like every other mental capacity, current circumstances will magnify or suppress whatever traits a person brings to the political arena. Trump’s current role as a leader may reinforce his presumed earlier deficiencies.

When a complex organism, human or otherwise, is threatened or traumatized, a basic, evolutionarily conserved, hard wired neural process narrows attention to focus on cues related to threat.  This process excludes awareness of the context of the threat, or signs of support and security. Arguably, being a leader in and of itself stresses even well evolved capacities for mentalization. High level  leaders, like alpha primates, may be exquisitely attuned to threats to their dominance. In response, they choose their associates to avoid contact with those who might challenge them. Politicians at the highest level even have some capacity to influence reality, at least media representations of reality. Controlling interactions and the flow of information creates a reverberating circuit, in which the leaders’ distorted views come back to them as outside influence, making their distortions ever more inflexible. Understood in this way, Trump may not be lying, at least in the strategic sense, when he denies the truth.

Friday, January 12, 2018

Taking the Text of the Twenty-Fifth Amendment Seriously

Mark Graber

Donald Trump is constitutionally unfit to be President of the United States.  The Twenty-Fifth Amendment to the Constitution of the United States requires the Vice President to assume the presidency whenever “the President is unable to discharge the powers and duties of his office.”  The Twenty-Fifth Amendment does not condition the temporary or permanent removal of the president on the president being “physically” or “medically” unable to discharge the powers and duties of his or her office.  Rather, the Vice-President is to assume the powers of the presidency when, for any reason, "the President is unable to discharge the powers and duties of his office.”  A president who is a congenital liar and a bigot, under the explicit words of the Twenty-Fifth Amendment is unable to discharge the powers and duties of his or her office.

The last paragraph of Section 4 supports claims that the Twenty-Fifth Amendment is not limited to physical or medical conditions.  That paragraph authorizes Congress to resolve, by a two-thirds vote of both Houses, whether a president is able to discharge the powers and duties of the presidency.  Members of Congress as a whole have no particular expertise on physical, medical, or psychiatric conditions.  That is for medical professions, who are given no role in the constitutional process for removing the president.  Members of Congress do have expertise on whether a president, for any reason, is capable of discharging his or her responsibilities.  Thus, given that Congress cannot determine whether a president is a sociopath, but can determine whether the president is a congenital liar, the best reading of the Twenty-Fifth Amendment is that Congress should focus on whether the president is able to discharge the powers and duties of office and not on whether the reason for that failure is some physical or medical problem.

The contrary position has absurd consequences.  Consider a president who goes on a permanent vacation and refuses to discharge any of the powers and duties of the office.  For political purposes, no difference exists between that president and the brain-dead president.  If we limit the Twenty-Fifth Amendment to presidents with physical or medical conditions, however, we can only remove the brain-dead president.  Consider a president who lies repeatedly, consistently utters bigoted remarks and makes irrational decisions.  If we limit the Twenty-Fifth Amendment to presidents with physical or mental conditions, we can remove that president only if we discover that the behavior is question is caused by a brain deformity or by depression caused by the death of a loved one.  For constitutional purposes, no difference exists between the congenital liar suffering from brain lesions, the congenital liar suffering from depression and the congenital liar who is just a rotten human being.

Donald Trump plainly meets the standards for removal from office under the Twenty-Fifth Amendment.  A congenital liar cannot discharge the powers or duties of office.  As Heidi Kitrosser points out in an important book, the constitutional separation of powers requires the public have the information necessary to hold government officials accountable.  A president who averages several major lies a day, and who cannot tell the truth about matters ranging from attendance at the inauguration to the facts underlying his tax and immigration policies cannot perform the duties of office necessary for constitutional accountability.  A bigot cannot discharge the powers or duties of office.  The Fifth Amendment by case law and Fourteenth Amendment explicitly mandate that neither the United States nor any state shall “deny to any person within its jurisdiction the equal protection of the laws.” A president committed to white supremacy is unable to implement congressional legislation promoting this commitment to equality under law or appoint justices and other officials who will act consistently with the constitutional commitment to equality.

That Donald Trump is constitutionally unfit for office is as much a matter for constitutional politics as constitutional law.  No politically sane person expects that Republicans in Congress will take seriously their constitutional obligation to determine whether Donald Trump has the capacity to discharge his presidential responsibilities as long as they believe Trump will sign tax cuts for their donors and appoint reactionary justices to the federal bench.  Nevertheless, whether removal is politically possible at present or politically desirable should Democrats gain control of Congress is a separate issue from the more fundamental question whether the current occupant of the White House is capable of holding office.  On that question, the Twenty-Fifth Amendment is clear.  A president unfit for office is not entitled to deference or respect, even if for transient political reasons that president is not removed from office.

Friday, January 05, 2018

Can the New DOJ Policy on Pot Be Applied Retroactively?

Guest Blogger

Alec Walen

On January 4, 2018, Attorney General Jeff Sessions issued a memorandum rescinding the prior policy of the Department of Justice (DOJ). This prior policy, spelled out in the so-called Cole memo, instructed “federal prosecutors to de-prioritize marijuana-related prosecutions in those states — except in certain cases, such as when there were sales to children, gang-related activity, or diversions of the product to states where it remained entirely illegal?” (NY Times article) The new policy emphasizes that DOJ prosecutors should pursue marijuana prosecutions just as it pursues every other criminal activity.

The implication of the new policy is that activity involving the cultivation, distribution and even possession of pot—activity that was legal under state law, and that people thought, relying on the Cole memo, was not going to the basis of a prosecution under federal law—can now form the basis of a federal prosecution. The question I want to raise is: would such prosecutions be constitutional?

In favor of prosecution, one can say that it’s always been obvious that the federal law was out there and that it is not negated by any state law to the contrary.

On the other hand, the Cole memo gave people reason to rely on the thought that the federal law was effectively nullified as long as they operated within certain limits. To prosecute them now is to “spring a trap” on them. (quoting Posner, dissenting in U.S. v. Wilson, 159 F.3d 280,289 (7th Cir. 1998)).

The constitutional hook for the defense is the due process clause. It is well known that the due process right not to be prosecuted based on the difficulty of knowing the law is a very limited right. Lambert v. CA, 355 U.S. 225 (1957) held that there was a due process right against conviction when the crime was “wholly passive,” the law was merely “for the convenience of law enforcement agencies,” and there was nothing about the circumstances to “alert the doer to the consequences of his deed.” But as Justice Frankfurter foretold in his dissent, the decision turned out to be “a derelict on the waters of the law.”

On the other side, there are a number of decisions rejecting the defense that a defendant could not have predicted that his behavior would be against the law. I could cite many, but I’ll go with just one set of cases, the Albertini cases and the S.Ct. decision in U.S. v Rodgers, 466 U.S. 475, 484 (1984). In the former, the 9th circuit held that a defendant could not be prosecuted for trespass when he lived in state in the 9th circuit and relied on 9th circuit precedent that held that he had a First Amendment right to protest on a military installation, even if the Supreme Court later overruled the 9th Circuit’s holding on his right to protest on a military base. But in the Rodgers case, the Supreme Court rejected that defense, holding that “the existence of conflicting cases from other Court of Appeals made review of that issue by this Court and against the position of the respondent reasonably foreseeable.” In other words, under the Rodgers decision, Albertini would have had no defense.

One could easily imagine a prosecutor arguing that it was always reasonably foreseeable that a new sheriff would come to town and decide to enforce the federal marijuana law, and that those who buy or sell pot had no right to rely on their state law permitting it and the federal policy not to enforce the federal law.

The question is: could the defense mount a compelling case that such a move would violate due process? It could go in two ways:

  1. Distinguish Rodgers. Perhaps it should be argued that there was no contemporaneous warning that the federal law might be enforced, and argue that people should have a right to rely on a policy statement from the U.S. department of justice about what will not be prosecuted.
  2. Revisit Rodgers.

Both strands could be reinforced with the thought that fundamental fairness, the principle of legality, and the principle behind the ex post facto law, all require that a decision to start enforcing federal law, law that the DOJ had publicly stated would not be enforced, can only result in prosecutions for activity that violates that law going forward, not retroactively.

If I were to bet on this, I’d bet heavily that the due process clause would not be found to protect those who relied on state law and federal policy. But as a matter of justice, it is clear to me that this would be a failure of fairness, legality and true due process norms.

Alec Walen is Professor of Law at Rutgers-Camden School of Law. You can reach him by e-mail at at awalen at

Tuesday, January 02, 2018

The Solicitor General's Baffling Brief in Lucia v. SEC

Marty Lederman

In a series of recent posts (most recent here), I’ve been sharply critical of filings by the Solicitor General in the Hargan v. Garza abortion litigation, involving HHS’s efforts to deny minors in their de facto custody the ability to exercise their constitutional rights.  Last month, for example, I wrote that the Solicitor General’s nominal “Petition for Certiorari” in No. 17-654 “[i]n many respects . . . departs, sometimes dramatically, from the justly lauded, traditional standards and practices of [the Office of the Solicitor General].” 

Unfortunately, it appears that the Hargan litigation is not a singular aberration.  Three weeks after his petition in Hargan, the Solicitor General filed another extraordinary brief in No. 17-130, Lucia v. SEC, about a topic far removed from (and less heated than) abortion rights—namely, whether the Administrative Law Judges (ALJs) who work in the Securities and Exchange Commission (SEC) are hired in a manner that violates the Appointments Clause of the Constitution, Art. II, § 2, cl. 2.  

In his Lucia brief, filed on behalf of the Respondent SEC, the SG urges the Court to grant Lucia’s petition for certiorari, even though the government prevailed below.  As I’ll discuss, SG Francisco failed to offer a compelling reason why the government was switching its longstanding legal position in Lucia; but that’s not what makes the brief especially concerning.  Such a reversal is unusual, but it’s not, in and of itself, problematic.  Indeed, one of the most laudable practices of the Office of Solicitor General is the confession of error.      

What makes the brief extraordinary, from the perspective of the Office’s usual standards, are two other things:

-- First, the SG did not explain why, under the government’s new view, the proper response was not for the defendant agency—the SEC—to change its practices to conform to the government’s new view of what the Constitution requires, rather than (as the SG has urged) for the Court to grant cert.  What’s more, the brief failed to inform the Court that the SEC was about to take steps, the very next day, to cure the alleged constitutional infirmity identified in the petition and thereby also eliminate the purported basis for the Court to grant the petition.  The SG’s stated justification for the Court to grant the petition is no longer operative—yet the SG has not whispered a word to the Court about that decisive change of circumstance.

-- Second, the SG not only asked the Court to grant cert. on the Appointments Clause question where there was no longer any factual predicate for it; he also asked the Court to expand the Question Presented to include an additional constitutional challenge to a federal statute (regarding ALJs’ “for cause” removal protections) that no court has accepted, on which no court of appeals has opined, and that the petitioners themselves have not raised.

* * * *

Some background:  Petitioners Lucia, et al., were registered investment advisers who marketed a wealth-management strategy called “Buckets of Money.”  The SEC instituted administrative proceedings against them based upon allegations that they had used misleading slideshow presentations to deceive prospective clients about how the “Buckets of Money” strategy would have performed under historical market conditions, in violation of three federal statutes. 

The Commission assigned the initial stages of the proceeding to ALJ Cameron Elliot.  After a hearing, Elliot concluded that the petitioners had willfully and materially misled investors in violation of the Investment Advisers Act, and ordered a variety of sanctions.  Such an ALJ decision does not itself operate by force of law:  It becomes final only upon an order issued by the SEC itself, and the SEC reviews the ALJ’s decision de novo.  In this case, the Commission conducted an independent review of the record, except with respect to the findings not challenged on appeal, and the Commission determined that the ALJ had correctly found that the petitioners had willfully made fraudulent statements and omissions in violation of the Investment Advisers Act.  With limited exceptions, the Commission also affirmed the sanctions that ALJ Elliot had proposed.

Lucia and the other petitioners challenged the SEC process on the ground that ALJ Elliot was an “inferior” “Officer[] of the United States” who had not been appointed in conformity with the Appointments Clause.  The Appointments Clause provides that such inferior Officers must be appointed in one of four ways: by the President, by and with the advice and consent of the Senate; by the President alone; by a court of law; or—as most relevant here—by the head of a Department. 

The five-member Commission is the head of a Department, and the relevant statute would permit the Commissioners to appoint ALJs.  See 5 U.S.C. 3105 (“Each agency shall appoint as many administrative law judges as are necessary . . . .”).  If the Commission had done so, such an appointment would have satisfied the Appointments Clause even if ALJ Elliot is an inferior “Officer.”  The SEC, however, for some reason had not itself directly appointed its ALJs.  Most of them were, instead, chosen by the Commission’s Office of Human Resources, based upon recommendations by the SEC’s Chief ALJ and an interview committee, who in turn selected individuals from among three candidates identified by the U.S. Office of Personnel Management.  ALJ Elliot, too, appears to have been hired by the Office of Human Resources, albeit perhaps not pursuant to the OPM “Rule of Three” (see this transcript at pp. 4470-72).   

Everyone agrees that if ALJ Elliot is an “Officer of the United States,” his hiring by the SEC’s Office of Human Resources violated the Appointments Clause, because the Commission itself did not (as of the date of the ALJ’s hearing) approve the appointment.  (As the Office of Legal Counsel has explained, the appointment process can largely be delegated to officials other than the head of the Department, such as the Human Resources Department, as long as the “ultimate decision” on the appointment remains with the head of the Department.  Here, however, the SEC did not (until recently—see below) confirm the appointment of ALJ Elliot.)

The question presented by the Lucia petition thus is whether ALJ Elliot is an “Officer” for purposes of the Appointments Clause, or whether he is, instead, a mere “employee,” who may constitutionally be appointed as Mr. Elliot was here.

There’s a circuit split on that question:  The U.S. Court of Appeals for the D.C. Circuit says that the SEC ALJs are employees for Appointments Clause purposes, whereas the Court of Appeals for the Tenth Circuit says they’re “Officers.”  Until a few weeks ago, the longstanding view of the SEC itself, and of the United States, was that these ALJs are employees, and thus that it is not constitutionally necessary for the SEC Commissioners themselves to appoint them.  That is the position the government argued to the en banc D.C. Circuit in the Lucia case in May.  The court of appeals affirmed the judgment against Lucia by an equally divided 5-5 vote (with Chief Judge Garland recused).

In his Lucia brief in the Supreme Court, however, SG Francisco, on behalf of the SEC, now reverses the United States’s traditional view:  He argues that the ALJs are “Officers” and therefore were hired in violation of the Appointments Clause.

I tend to think the government’s previous, traditional view was correct—that the SEC’s ALJs are employees rather than officers, primarily because they do not have the independent power, without the action of the Commission itself, to bind third parties or the government itself for the public benefit.  See 31 Op. O.L.C. 73, 87 (2007).  Concededly, however, it’s a close and unresolved question, owing in part to the somewhat cryptic and imprecise opinion of the Court in Freytag v. Commissioner (1991).  Reasonable minds can differ. 

And apparently SG Francisco does:  His view, after “further consideration” of the question (p.9), is that the ALJs are “Officers” and thus must be appointed by the SEC itself.  Fair enough.  Just because a new SG does not agree with the traditional view of the United States on a legal question, however, does not mean that the government should therefore change its legal position in court—particularly not where, as here, the Trump Administration itself pressed the traditional view before an en banc court of appeals just six months earlier (reply brief here; oral argument here); and where the new view would impose greater constraints on the flexibility of the client agency.  The traditional understanding is that the core of the Solicitor General’s responsibility is, in the words of former SG Seth Waxman, “to ascertain and represent the interests of the United States in litigation.”  And, obviously, it is not in the interests of the United States to flip its views every time a particular Solicitor General happens to personally think that the prevailing U.S. position is not the one he would have arrived at on a clean slate.  Such convulsive shifts, based entirely on the person who happens to be SG at a given time, would undermine the credibility of OSG’s representations to the Court.

This doesn’t mean that such shifts are always inappropriate, however.  Sometimes, for instance, major changes in the Supreme Court’s own jurisprudence might warrant a reconsideration of the government’s views.  And in still other cases, a Solicitor General, Attorney General, and/or the President might conclude that the traditional U.S. position was insufficiently protective of constitutional rights—such as the switch in positions of the George W. Bush Administration on the Second Amendment, or President Obama’s conclusion that Section 3 of the Defense of Marriage Act was unconstitutional.  The SG’s Lucia brief, unfortunately, fails to offer any such compelling reason for the about-face, apart from the fact that the new SG undertook “further consideration” of the question.  (The brief also refers (pp.9-10) to “the implications for the exercise of executive power under Article II”—but it doesn’t say what those “implications” might be.  Indeed, executive power is enhanced if the agency may choose among different means of appointing ALJs—a flexibility that the government’s new view would foreclose.)

* * * *

The failure to offer a good explanation for the shift in the government’s traditional view, however, is not what makes the brief so troubling.  What’s much more inexplicable is the SG’s failure to offer a persuasive reason why certiorari is warranted in light of the new position of the United States, and his failure to inform the Court of intervening developments undertaken by the Respondent agency itself that eliminate the need for the Court to resolve the Question Presented. 

The SG argues (p.10) that the Court should grant cert. because “[t]he question presented has arisen frequently across the courts of appeals on petitions for review of the Commission’s decisions, and it will continue to arise absent this Court’s intervention.”  Indeed, the SG represents (p.25) that “the Commission’s ability to enforce the nation’s securities laws has, in significant respects, been put on hold pending this Court’s resolution of the question presented.”

This is simply untrue, however—or, more to the point, it was something entirely within the Respondent agency’s own power to prevent.  The upshot of the SG’s brief for the SEC is this:  “We have been acting unconstitutionally.”  OK, then, if that's the case—if the SEC’s new view is that its ALJs are “officers”—then why wouldn’t the Commission now simply appoint ALJs in conformity with the Appointments Clause, by making the appointments itself, thereby curing the constitutional defect?  (The federal statute allows the SEC to do so.  The SG’s view of the constitutional question, that is to say, does not mean that any federal statute is unconstitutional.)  One would expect the brief to say something about that possibility—about whether and how the SEC was responding to its new view that the appointments had been unconstitutional.  Yet on this crucial question, the brief is silent.

Worse yet, the brief does not mention the critical fact that the SEC was, indeed, about to cure the constitutional defect.  The very next day after the brief was filed, the Commission— in its capacity as head of a department—“ratified” the appointment of Elliot and its other ALJs.  The Commission further ordered that all pending cases, including those that had already been appealed from an ALJ to the Commission itself, must be reconsidered before a properly appointed ALJ, with an opportunity for the parties to submit new evidence.

Because of this action by the SEC, the question presented will not “continue to arise absent this Court’s intervention,” nor will “the Commission’s ability to enforce the nation’s securities laws [be] put on hold pending this Court’s resolution of the question presented.”  There is no longer any reason for the Court to consider the merits of an agency practice that no longer exists and that the agency and the Solicitor General have concluded cannot be revived.[1]
The SG’s failure even to identify, let alone discuss, this development, is indefensible, best I can tell.

* * * *

Perhaps that failure can be explained by the other remarkable aspect of the SG’s new brief:  the SG’s eagerness for the Court also to consider an additional constitutional question, concerning the ALJs’ statutory protection from removal, that is not affected by the SEC’s recent appointment of the ALJs.

Only the Commission itself can remove ALJs from office, and then “only for good cause established and determined by the Merit Systems Protection Board.”  5 U.S.C. 7521(a).  Moreover, the President can only remove the members of the MSPB and (probably) Commissioners on the SEC itself for “good cause,” e.g. (as to the MSPB), “only for inefficiency, neglect of duty, or malfeasance in office.”  5 U.S.C. 1202(d).  After the Court’s decision in Free Enterprise Fund v. Public Co. Accounting Oversight Bd., it is an open question whether this multi-layer “for cause” removal protection for ALJs is constitutional.  See FEF, 561 U.S. at 507 n.10; id. at 542-43 (Breyer, J., dissenting).

The SG’s brief urges the Court to resolve this removal question, too.  “It is critically important,” writes Francisco (p.21), “that the Court, in considering whether the Commission’s ALJs are ‘Officers of the United States,’ address whether the restrictions imposed by statute on their removal are consistent with the constitutionally prescribed separation of powers.”  Yet not only doesn’t the SG offer any reasons why the Court’s consideration of that question would be “critically important” now, he does not even offer any good reason why the Court should do so.  And there are plenty of good reasons—reasons the Solicitor General himself typically invokes, but that he disregards here—why the Court should not grant the petition in order to review that question. 

For one thing, the petitioners themselves have not raised it in the case, let alone in their petition, and, as they explain in their reply brief, they do not want the Court to address it.  Indeed, as the reply brief notes (pp. 10-11), even if the petitioners did take the view that they have a right to appear before an ALJ who is not protected by such removal restrictions, that question might never arise in their case—if, for example, “the proceeding is dismissed, or petitioners are afforded a new trial in an Article III forum.”  

Moreover, not only is there not a circuit split on the question, but no federal court has ever held that the ALJ removal protections are unconstitutional, and no court of appeals has even opined on the question, one way or the other.  (The question has been raised in a D.C. Circuit case (Timbervest v. SEC, No. 15-1416) that the court of appeals is holding in abeyance pending the Supreme Court’s disposition of Lucia.)  Thus, as petitioners note (p.10), “[t]he Solicitor General . . . asks this Court to break new ground”—to address the constitutionality of a federal statute, no less!—“without the benefit of a decision from the court below or any other court of appeals.”  (It's not surprising that there's no immediate prospect of a petition cleanly raising the question:  It is far from obvious that most actors in the regulated community would be keen on a Supreme Court holding that the SEC can remove ALJs at will.)

Finally, the SG does not even suggest, let alone argue, that the ALJ “good cause” removal provisions of the federal law are unconstitutional—and there are very good reasons to believe that they are not, because an ALJ’s principal role is, of course, to perform adjudicative rather than enforcement or policymaking functions.”  FEF, 561 U.S. at 507 n.10; see also Wiener v. United States, 357 U.S. 349 (1958).[2]

Obviously, then, if the Solicitor General were applying his Office’s usual standards, he would never have urged the Court to consider the merits of the removal question.  In this respect, too, he has starkly deviated from the traditional practices of the Office.

* * * *
The Justices are scheduled to discuss Lucia at their conference this coming Friday, January 5.  For the reasons I’ve set out here, the case is not cert.-worthy:  In light of the Respondent’s new view of what the Appointments Clause requires, and the SEC’s recent appointments of its ALJs, there’s no reason for the Court to consider the merits of the agency’s past practice, which it has now repudiated and abandoned. 

Nevertheless, Lucia notes in its reply brief that the SEC’s action to fix the problem going forward does not remedy the petitioners’ own injuries (p.5):  “Although the government now agrees that SEC ALJs are Officers, it has afforded petitioners no redress for having subjected them to trial before an unconstitutionally constituted tribunal.”  It further asserts (p.6) that “[a]bsent review by this Court, the judgment below will stand uncorrected notwithstanding the Justice Department’s confession of error.”  I’m not sure that’s right.  It might be the case that the SEC can now order the petitioners’ own case to be reopened before a properly appointed ALJ, just as it has done with respect to cases that remain pending before the Commission.  If so, the Commission obviously should do so right away.  If it does not do so, however—or if the agency no longer has jurisdiction to so “reopen” the petitioners’ case because the appeal is pending in an Article III court (a question I haven’t researched)—the Court should grant Lucia’s petition, vacate the judgment below, and remand the case to the court of appeals, with an order for that court to remand the case to the agency for reconsideration before a newly appointed ALJ (or some other lawful disposition).

[1] In its reply brief, Lucia offers two reasons why the Court should hear the case, even after this curative action by the Commission.  Neither reason is persuasive, however.

First, Lucia suggests (p.6) that perhaps the SEC itself—in contrast to the SG—might actually refuse to appoint the ALJs, and “continu[e] to assert that its ALJs are employees. . . .  [T]he Commission will not actually acknowledge that petitioners were tried by an unconstitutional adjudicator or provide an appropriate remedy for that constitutional violation.”  The SEC, however, already has acknowledged that a Commission appointment is necessary to cure a constitutional defect:  That is precisely the argument of the brief that the Solicitor General filed on behalf of the SEC.  Even if there might be certain officials at the SEC who do not personally agree with the view in the brief, the Commission itself is now formally on record as conceding that an appointment by the “Head” of the “Department” is constitutionally required—and it has taken steps to comply with that requirement.

Second, Lucia argues (p.8) that the SEC’s purported “ratification” does not do the (constitutional) trick, because the SEC used the wrong nomenclature:  Instead of saying that the SEC “hereby appoints” the existing ALJs, or words to that effect, the Commission stated that it was ratifying the “agency’s prior appointment” of the five identified ALJs—and the agency, as such, had not, in fact, made the prior appointments.  Surely, however, the Commission’s failure to use any special “magic words”—or, more to the point, its insertion of the word “agency’s” to refer to the actions of the SEC’s Human Resources Department—should not make any constitutional difference.  The Commission has expressed its will to appoint Elliot and the other ALJs through an open and unequivocal public act, which is all the Constitution requires.  See Marbury, 5 U.S. at 156-57.  (And even if some clerical correction were required to confirm the new appointments, that would hardly be reason for the Court to grant cert.)

[2] The SG writes, in passing (p.20), that “the status of the Commission’s ALJs as constitutional ‘Officers’ . . . has implications for whether the statutory restrictions on their removal are consistent with separation-of-powers principles.”  That’s not correct:  It’s mixing apples and oranges.  Whether or not ALJs are “officers” for purposes of the Appointments Clause is a question entirely distinct from whether Congress’s prescribed method for removing ALJs “impermissibly burdens the President's power to control or supervise” such actors “in the[ir] execution of . . . duties under the Act” and thereby “interfere[s] impermissibly with his constitutional obligation to ensure the faithful execution of the laws.”  Morrison v. Olson, 487 U.S. at 692-93.  To be sure, evaluation of the ALJ’s particular functions, and of the SEC’s supervisory authority over such ALJs, is relevant to both questions, and it’s difficult to imagine any “employee,” not covered by the Appointments Clause, for whom Congress may not provide “for cause” removal protection; nevertheless, the answer to the “officer/employee” question for Appointments Clause purposes does not resolve, or even affect, the question of whether particular removal restrictions are constitutional.

Monday, January 01, 2018

Things To Do In San Diego When You're ... [cue Warren Zevon]

Mark Tushnet

I'm looking forward to the ACS panel on norms at the AALS meeting, though I expect to come away grumpy. (There's also been a series of posts on Lawfare dealing with norms and the President. The link is to the homepage where all the posts are listed.)

Why grumpy? Because the focus is likely to be too much on the President and the pressure placed by his words (as the Lawfare posts argue, more than his actions) on constitutional norms. The overall Lawfare argument, which seems to me basically correct, is that the norms focused on the presidency have not yet been displaced by other more worrisome ones. (Partly that's precisely because norms are instantiated in actions that have consequences, then -- or before then -- rationalized in words.) But, for me, there's been a much longer term erosion of norms in the legislative process. (After all, I published "Constitutional Hardball" in 2003.)

It's not interesting (to me) to attribute responsibility for that erosion (and indeed even engaging in attribution of responsibility is a manifestation of partisanship). Rather, what's interesting to me is thinking about what one does in media res, that is, when one believes that one's opponents are actively engaging in norm breaches (perhaps with the aim of constructing a new set of norms). And, as I've blogged before, I think that the only reasonable response is to adopt a tit-for-tat strategy (as I believe Republicans would say they have done) rather than to assert that the prior norms remain strong enough (so that "temporary" departures from them can be absorbed, which is, overall, the Lawfare posts' argument).

My grumpiness arises from a strong sense that "my" side in this is playing the patsy, refusing to even think about tit-for-tat as the politically responsible thing to do. I understand the Pozen-Fishkin argument that the Democratic coalition's composition makes it politically difficult for Democrats to engage in tit-for-tat -- but political strategies develop in light of what coalition constituencies take as their program. So -- for activists rather than academics (or for academics in their activist clothing) -- it seems to me a mistake to take tit-for-tat off the table as a matter of principle. (Of course, figuring out what tit-for-tat means in 2018 is difficult, though not impossible -- I've suggested breaching the norm of routinely giving unanimous consent in the Senate to a whole slew of things [and as I understand it Senator Schumer has done some similar things, within the constraints imposed by his caucus]-- but the possibilities for 2019 might be quite different.)


Joseph Fishkin

For those who are attending the AALS conference this week in San Diego, the American Constitution Society is sponsoring a panel that may be of interest to some of you, on Norms and the Rule of Law.  (ACS went way out on a limb and decided that this might feel like a timely topic in 2018 for some reason or other.)

The panel will include Jamal Greene, Leah Litman, Neil Siegel, and moderator Eric Segall.  It's 5:30-6:45 on Thursday, January 4th in the Balboa room (South Tower, 3rd floor, at the Marriott Marquis).  Description here.  ACS is also sponsoring a reception afterward, 6:45-8:00, in the Cardiff room (same tower & floor), where Adam Winkler will be the featured speaker.

Sunday, December 31, 2017

Who's on Ethical Thin Ice in the Hargan v. Garza Abortion Case?

Marty Lederman

By Marty Lederman and David Luban
This coming Friday, the Supreme Court Justices are scheduled to consider, at conference, the government’s nominal 
“petition for certiorari” in No. 17-654, Hargan v. Garza.  Marty has already written at length on the petition, and we won’t repeat here the many ways in which it is deeply problematic.  Since that first post, there have been further revealing proceedings in the case (see, e.g., this post and this one), and Carter Phillips/Sidley Austin have filed a terrific brief in opposition on behalf of the Respondents, in which they (among other things) carefully explain why the SG’s accusations of ethical breaches by Jane Doe’s attorneys are groundless.  The SG recently filed a reply brief, which doubles down on the allegations of unethical attorney behavior; and David has published a post on why the ethics authorities the SG cites in his reply brief do not support his accusations.

In this post, we address two further items, both related to the attorney ethics aspect of the petition: (i) First, we note the incongruity of the SG using this case to make an unprecedented attack on opposing counsel’s ethics, when the Department of Justice itself has acted in ways that themselves raise ethical questions.  (ii) Second, we address the death penalty analogy that the SG invokes on the final page of his
reply brief--an analogy that appears to have had traction with some readers, if our conversations are any indication.

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