Category Archives: Constitution

Are We Headed Toward a Constitutional Crisis?

What, exactly, constitutes a “constitutional crisis”? It is a term we are hearing more frequently, and over at Vox, they made a pretty good stab at defining it.

Dylan Matthews writes that he

decided to ask eight leading experts — six constitutional law professors and two political scientists — for their thoughts. They were unanimous that the situation as it exists now doesn’t count as a constitutional “crisis”; some cast doubt on whether that term, which has no firm definition, is even useful.

As one of the experts noted, the fact that something tends to undermine respect for constitutional institutions–like calling a judge a “so-called” judge, or showing lack of respect for the courts–can be a bad idea, yet not amount to a constitutional crisis. (As I tell my students, the fact that a policy is stupid or even dangerous doesn’t automatically make it unconstitutional.)

Matthews quotes constitutional scholar Keith Whittington for the definition of a genuine crisis.

“Constitutional crises arise out of the failure, or strong risk of failure, of a constitution to perform its central functions,” he wrote. That didn’t happen in the impeachment (which unfolded according to the procedures laid out in Articles 1 and 2) or in the 2000 election (in which decisions of executive branch officials in Florida were challenged through normal legal channels and all actors respected the ultimate decision of the US Supreme Court, whether or not they thought it was rightly decided).

So what would qualify? Whittington divided constitutional crises into two categories. Operational crises occur “when important political disputes cannot be resolved within the existing constitutional framework.” That is, the Constitution itself is failing, and is allowing people engaged in a political conflict to each behave in ways that together can result in calamity. A “crisis of constitutional fidelity,” by contrast, occurs when, “important political actors threaten to become no longer willing to abide by existing constitutional arrangements or systematically contradict constitutional proscriptions.” That’s when what the Constitution prescribes is clear, but one or more politician or branch of government willfully defies it.

The article is interesting, and (given the chaos that is today’s White House) worth reading, but it didn’t directly address a question that I’ve begun mulling, given the “drip, drip, drip” of new revelations (most recently, the scandal surrounding Sessions): What if it turned out that Russia really did “elect” Trump? In other words, what if investigations turned up evidence that Russia’s tampering really did “rig” the election?

The Constitution has no remedy for an illegitimate election, at least not that I am aware of. Trump’s electoral college victory rested on fewer than 80,000 votes spread among three states, giving him paper-thin margins in those states–and the win. If those votes were suborned or improperly counted, then neither he nor Pence would really have been elected.

What then? Would we follow the constitutional line of succession, and install Ryan–giving the Republicans a “win” they didn’t win?

Let me emphasize that I have absolutely no evidence that this actually happened; my guess is that the Russian efforts to influence the election were just that–efforts at influencing public opinion, rather than actually falsifying results. I raise the question because it is becoming clear that there are aspects of our current political life that neither our national charter nor our governing institutions anticipate or address. I doubt the Founders could have foreseen the nature of today’s democratic distortions caused by the Electoral College, or the way in which gerrymandering has deprived millions of Americans of meaningful votes, or the current iteration of the filibuster that requires Senate super-majorities in order to pass even routine legislation.

If a central function of a Constitution is to prescribe fair and transparent processes by which citizens govern themselves, we may need to do some repair work on ours.

 

About Those Threats…

Trump has issued a number of threats against so-called “sanctuary” cities and states, and his supporters (most of whom, ironically, would be considered “states’ rights” supporters) have declared such local designations illegal.

So it was interesting to read a recent column by Ilya Somin, a conservative legal scholar, analyzing the relative constitutional rights involved.

President-elect Donald Trump has repeatedly promised to engage in large-scale deportation of undocumented immigrants. In order to accomplish that goal, he is likely to need the cooperation of state and local governments, as federal law enforcement personnel are extremely limited. But numerous cities have “sanctuary” policies under which they are committed to refusing cooperation with most federal deportation efforts. They include New York, Los Angeles, Chicago, Seattle, and other cities with large immigrant populations. Sanctuary cities refuse to facilitate deportation both because city leaders believe it to be harmful and unjust, and because local law enforcement officials have concluded that it poisons community relations and undermines efforts to combat violent crime. They also recognize that mass deportation would have severe economic costs.

The arguments and links in the foregoing paragraph, of course, are policy arguments. They detail why the proposed policy is stupid, but (as I frequently remind my students) just because something is stupid and/or mean-spirited and/or counterproductive doesn’t mean it is also unconstitutional.

After listing the reasons the policy is ill-considered, however, Somin does address the question of constitutionality.

Under the Constitution, state and local governments have every right to refuse to help enforce federal law. In cases like Printz v. United States (1997) and New York v. United States (1992), the Supreme Court has ruled that the Tenth Amendment forbids federal “commandeering” of state governments to help enforce federal law. Most of the support for this anti-commandeering principle came from conservative justices such as the late Antonin Scalia, who wrote the majority opinion in Printz.

But what about Trump’s threat to withhold federal funds from cities and states that refuse to help him implement his deportation program? According to Somin, while the President may be able to withhold some funds, the threat is far less “formidable” than it may seem.

Few if any federal grants to state and local governments are conditioned on cooperation with federal deportation efforts. The Supreme Court has long ruled that conditions on federal grants to state and local governments are not enforceable unless they are “unambiguously” stated in the text of the law “so that the States can knowingly decide whether or not to accept those funds.” In ambiguous cases, courts must assume that state and local governments are not required to meet the condition in question. In sum, the Trump administration can’t cut off any federal grants to sanctuary cities unless it can show that those grants were clearly conditioned on cooperation with federal deportation policies.

It’s been truly  heartening to see how hobbled Trump has been by his complete ignorance of the way American government actually works. (For that matter, his obvious ignorance of the way law in general works helps to explain why he has been involved in–and lost–so many lawsuits.)

In an update to his original column, Somin highlights a “states’ rights” irony that might be filed under “be careful what you ask for.”

It is worth noting that if Congress were to pass a law stripping sanctuary cities of all their federal funding unless they help facilitate federal deportation efforts, it would be unconstitutional under the Supreme Court’s decision striking down the Obamacare Medicaid expansion in NFIB v. Sebelius (2012), which forbids funding conditions so coercive that they amount to a “gun to the head” of a state or local government.

Short version: If the federal government can’t force states to expand Medicaid, neither can it force states to help deport undocumented people.

 

Real Americans

Each day–or so it seems–we are treated to news of yet another set of attitudes or beliefs that divide American citizens. Some of those divisions are beginning to seem insurmountable.

Case in point: According to a recent Pew poll, thirty-two percent of Americans believe that you have to be Christian to be a “real” American. (It would do no good to point members of that 32% to contrary writings by the nation’s Founders–like the occasional commenters who come to this blog to cite Fox News as authority for their evidence-free assertions, these are people for whom history inconsistent with their preferred beliefs is irrelevant. Or “fake.”)

According to Pew,

In 2014, Christians accounted for 70.6% of the U.S. population. Non-Christians and those unaffiliated with any religion totaled 28.7%.

About a third (32%) of Americans say it is very important for a person to be a Christian in order to be considered truly American. Roughly three-in-ten (31%) contend that one’s religion is not at all important.

Presumably, people who identify “American” with “Christian” do so because they believe that the values of Christianity are central to America’s values. (Of course, they ignore that pesky fact that there are some 34,000 different Christian denominations, and a lot of them appear to prioritize rather different sets of values…)

Adam Gopnik addressed the centrality of religious pluralism to our system of government in the most recent New Yorker.

America is not only a nation but also an idea, cleanly if not tightly defined. Pluralism is not a secondary or a decorative aspect of that idea. As James Madison wrote in Federalist No. 51, the guarantee of religious liberty lies in having many kinds of faiths, and the guarantee of civil liberty lies in having many kinds of people—in establishing a “multiplicity of interests” to go along with a “multiplicity of sects.

When I saw the Pew poll, I thought about a column I wrote not long after the 2004 election, which was widely seen as a “values” election. I’m reproducing it, because it is a list of what I consider to be “real” American values. It needs updating–the targets of American resentments have changed somewhat–but it remains uncomfortably relevant.

Let me be quite explicit about my values, which are shared by millions of others—values that infuse the Declaration of Independence, the Constitution and the Bill of Rights, values that are absolutely central to what it means to be American.

Americans believe in justice and civil liberties—in equal treatment and fair play for all citizens, whether or not we agree with them or like them or approve of their life choices.

We believe that no one is above the law—and that includes those who run our government.

We believe that dissent can be the highest form of patriotism. Those who care about America enough to speak out against policies they believe to be wrong or corrupt are not only exercising their rights as citizens, they are discharging their civic responsibilities.

We believe that playing to the worst of our fears and prejudices, using “wedge issues” to marginalize gays, or blacks, or “east coast liberals” (a time-honored code word for Jews) in the pursuit of political advantage is un-American and immoral.

We believe, as Garry Wills recently wrote, in “critical intelligence, tolerance, respect for evidence, a regard for the secular sciences.”

We believe, to use the language of the nation’s Founders, in “a decent respect for the opinions of mankind” (even non-American mankind).

We believe in the true heartland of this country, which is anywhere where people struggle to provide for their families, dig deep into their pockets to help the less fortunate, and understand their religions to require goodwill and loving kindness.

We believe that self-righteousness is the enemy of righteousness.

We really do believe that the way you play the game is more important, in the end, than whether you win or lose. We really do believe that the ends don’t justify the means.

In our America, borrowing from our grandchildren so that we can pay for a costly war without taxing the President’s buddies and campaign contributors is not moral. Dividing the nation into red and blue, gay and straight, moral and immoral, welcome and unwelcome, is not moral. Excusing our own sins by pointing to the sins of others—torturing people, or engaging in “holy war” because “they” do it too, is not moral. Lying—about sex or Weapons of Mass Destruction or an opponent’s war record—is not moral.

On Election Day, claimants of the “ Christian values” label came to the precinct where my youngest son was working and said they were there to “vote against the queers.” In my precinct, when I handed a Democratic slate to a voter, he accused me of being a “friend of Osama.” A friend’s son registering voters for Baron Hill in a church was called a “fag lover.”

The people who live in my America need to reclaim the vocabulary of patriotism and values from those who have hijacked the language in service of something very different.

Unfortunately, that column remains pertinent.

 

While We Were Sleeping…

Tuesday night, Donald Trump announced his nominee for the Supreme Court seat that has been vacant since the death of Antonin Scalia. When I went to my computer yesterday morning, I found the predictable emails claiming that Judge Gorsuch is an unacceptable, far-right threat to the Republic and must be stopped (and oh, send money).

I agree that this nomination should be rejected (although I doubt it will be), but not because the Judge himself is outside the legal mainstream. He isn’t. He is certainly more conservative than I would like, and I disagree strongly with his particular approach to originalism. But accusations that he is an unacceptable ideologue are intellectually dishonest.

The real reason his nomination should be rejected is that placing him on the Supreme Court would reward an unprecedented assault on the rule of law–the refusal of the Senate to even consider President Obama’s nomination of Merrick Garland.

They blocked that nomination for entirely specious reasons, simply because they could.

I don’t think most Americans understand the implications of that action–implications that  go well beyond the makeup of the Supreme Court. In fact, the sheer effrontery of that power play requires us to consider the possibility–really, the likelihood– that we are no longer either a democracy or a republic; that during the past several years, while most Americans were comfortably detached from political activism and participation, a far-right faction of the Republican party managed to pull off a bloodless coup.

In plain sight.

Thanks to strategic gerrymandering, voters no longer choose their representatives–the representatives choose their voters. Together with successful vote suppression tactics (aided and abetted by voter apathy and citizen disengagement), the result is that this country is now run by people chosen by barely a quarter of those entitled to vote.

Thanks to manipulation of the filibuster, majority rule is no longer sufficient to pass legislation in the Senate. A minority of that body can block anything.

We are now governed by people who sneer at the rules of a constitutional system intended to constrain precisely the sort of power they now wield.

In the past, America has prided itself on adherence to the rule of law. A fundamental tenet of the rule of law is that no one is above the law–that the rules apply to everyone, governors and governed alike. Senator McConnell’s willingness to place raw power above that principle–and to gloat about it– was evidence that these radical usurpers no longer feel it necessary to give even lip service to that foundational principle.

It was the ultimate “fuck you, America. We have seized power and can do what we want.”

If Gorsuch is confirmed, so is the coup. It has nothing at all to do with his  judicial philosophy or bona fides.

I’m very much afraid that while Americans were sleeping through the warning signs, we lost our country.