Neal Katyal And George Conway’s Incomplete Legal Advice

In an Op-Ed for the New York Times, Neal Katyal, the “acting solicitor general under President Barack Obama and…a lawyer at Hogan Lovells,” and George Conway III, “a litigator at Wachtell, Lipton, Rosen & Katz,” argue that Donald Trump’s appointment of Matthew Whitaker as the the Acting Attorney General is unconstitutional. Roughly, according to the Appointments Clause of the US Constitution, Article II, Section 2, Clause 2, “principal officers of the United States must be nominated by the president and confirmed by the Senate under its “Advice and Consent” powers.” Whitaker is a principal officer, and he has not been confirmed by the Senate.  So, “Mr. Trump’s installation of Matthew Whitaker as acting attorney general of the United States…is unconstitutional. It’s illegal.”

(Katyal and Conway buttress this argument by invoking the words of Justice Clarence Thomas, who argued last year that the appointment of the general counsel of the National Labor Relations Board without Senate confirmation, which was ruled invalid on statutory grounds, was unconstitutional for precisely the same reason – it violated the Appointments Clause.)

Katyal and Conway sign off with a rhetorical flourish that should be familiar to anyone who has read claims alleging the unconstitutionality of a statute or executive action:

[T]he Constitution is a bipartisan document, written for the ages to guard against wrongdoing by officials of any party. Mr. Whitaker’s installation makes a mockery of our Constitution and our founders’ ideals. As Justice Thomas’s opinion in the N.L.R.B. case reminds us, the Constitution’s framers “had lived under a form of government that permitted arbitrary governmental acts to go unchecked.” He added “they knew that liberty could be preserved only by ensuring that the powers of government would never be consolidated in one body.”

We must heed those words today.

Stirring words. Exemplary legal analysis. Alas, something is missing. How can we “heed those words”? What legal redress do American citizens have? Can I call a police officer and ask him to arrest the President? Who will step forward to address this violation of the  law? Illegal acts have been committed; what can be done? Katyal and Conway do not bother to tell us. They tell us that something is is illegal and then they drop the mic.  Unconstitutionality Alleged! Boom!

What Katyal and Conway have failed to do is tell us who has standing to sue.  Standing is “the term for the ability of a party to demonstrate to the court sufficient connection to and harm from the law or action challenged to support that party’s participation in the case” or “the requirement that a person who brings a suit be a proper party to request adjudication of the particular issue involved.”

So, who, if anyone, has standing to sue in this case? I am not a lawyer or a legal expert. I do not know what the rules are for standing to sue alleging constitutional violations. Mea culpa – my civics lesson were clearly inadequate. It would be nice if a pair of expert lawyers, who enjoy access to one of the the nation’s most visible media platforms, would tell me.

This complaint is a more general one. In the years since Donald Trump has become president, a veritable blizzard of op-eds have descended upon us, alleging some kind of illegal behavior by the administration. (Most of these are admittedly allegations that some norms, rather than laws, have been violated.) In almost none of those is the reader informed of how the citizens of this nation can find legal remedies. An opportunity for a little civics lesson, a little legal education, is missed out in each case. And the impression that citizens have, that the laws of this nation simply do not check the actions of the powerful, is reinforced. From a political standpoint, polemics are of little use if they do not include some call to action: here is the legal violation, this is what must be done to redress it. Elementary rules of composition for political or legal writing, I think.

As things stand, Whittaker is Acting Attorney General. And for all we can tell, no one can do anything about it. If that is the case, it would be nice to know why.

How Many Constitutional Amendments Are There?

The short answer: the number of times the Supreme Court has ruled on a constitutional question. Every time the Supreme Court grants certiorari, allows a case to move ‘upwards’ from state and Federal courts to its chambers, and then proceeds to rule–keeping in mind the supposedly relevant precedents, and on the basis of a coherent theory of the interpretation of legal texts–it offers us an amended constitution. Every act of interpretation–sometimes plain literalist, sometimes originalist, sometimes purposive–adds meaning and texture to the text of the articles of the Constitution. Thus the content of the Fourth Amendment is not to be found in the Constitution; it is to be found in the cumulative history of all Supreme Court rulings on cases that have rested on contested interpretations of the Amendment. What does ‘unreasonable’ mean? What does ‘search’ mean? What does ‘seizure’ mean? What does ‘persons’ mean? What does ‘effects’ mean? What does ‘probable cause’ mean? To decipher this meaning, scattered over thousands and thousands of pages of Supreme Court rulings is an almost insuperable and intractable task; it is much easier, therefore, to fall back on the simplest formulation of all: ‘The Fourth Amendment says that…’. But the filling out of that particular that-clause will call for the expenditure of considerable ink, and in the end, it will appear that the protections of the Fourth Amendment are considerably more ambiguous–in several dimensions–than previously imagined, by both its detractors and proponents alike.

These considerations show that talk of ‘constitutional protections’ must always proceed hand in hand with talk of constitutional interpretation, with the history of actual supreme court rulings on the constitutional question under discussion. Such inclusion is especially necessary when giving someone legal advice; as Justice Holmes sagely pointed out many years ago, the law is what the judges say it is: “The prophecies of what the courts will do in fact, and nothing more pretentious.”

Our nation is entering a period of great legal uncertainty; there is much talk of taking cover under constitutional protections, of seeking refuge from an authoritarian government under the covering canopy of the Bill of Rights. But the text of the Bill of Rights is not sufficient to provide such protection; the Supreme Court rulings on Bill of Rights cases are far more germane. To look only to the Constitution is dangerously complacent; talk of legal rights without actual legal protections is hollow.

Many a patriot is disappointed and disillusioned to find out that in point of fact the Fourth Amendment is almost hollow in content; its protections systematically eviscerated over the years by repeated weakenings through selective, ideological, and politically motivated interpretation. Mass surveillance; warrantless searches; stop and frisk; the list goes on. Where is the Fourth Amendment?, the patriot asks. The answer is: not in a small booklet, but in that section of the law school’s library that deals with constitutional law.

Constitutional conventions, two-thirds majorities, ratifications by state legislatures–such is the machinery of the constitutional amendment by legislative fiat. Such convolutions are kludgy compared to the awesomely efficient method of Supreme Court rulings; there, in the foundry of the Supreme Court’s chambers, new meanings are forged every year, every Supreme Court season.

On Not Celebrating Steven Salaita’s Settlement With UIUC

I cannot bring myself to celebrate the news of Steven Salaita‘s settlement with the University of Illinois at Urbana Champaign (UIUC). The reasons for this are fairly straightforward–as noted in a petition now circulating: the crucial legal issues at the heart of his dismissal remain unresolved, and his job has not been reinstated.

Shortly after Salaita announced he would be taking legal action against UIUC, I made some caustic remarks–in the company of many friends–to the effect that UIUC should fire its legal team. How could they possibly have advised a public university to take action that seemed clearly punitive and retaliatory against the exercise of political speech by one of its employees? Did they not envisage the terrible damage that would be done to the university in the discovery stage of trial, where email correspondences and internal deliberations would go public, where it would become clear that the university had succumbed to the pressure exerted by donors?

In conversations with my wife–a lawyer herself–another disturbing possibility presented itself. That the university’s legal team had not discounted such a possibility, that a cost-benefit analysis had been carried out, one which reckoned the financial damage to the university resulting from the loss of donor money if Salaita was appointed as being greater than that resulting from the terms of any out-of-court settlement with Salaita. (The amount that Salaita settled for, $875,000, is far less than some big-pocket donor might have threaten to withhold had Salaita’s appointment not been rescinded. By way of comparison too, think of the salaries of football coaches at large university systems like the University of Illinois.)

And so it has come to pass. Salaita’s case never went to trial; the crucial First Amendment issue that lay at its core was never resolved; and instead, a simple calculus for violating academic freedom has emerged. In saying all this, I do not mean to second-guess the decision made by Salaita and his legal team; he must have wanted put the legal dispute behind him and get on with his life, which has been subject to terrible emotional pressure, and that is not an insignificant consideration. He has a life to live, and it does not need to include being the poster child for a political movement. But it remains unclear whether he will ever find employment at an American university again, for as we might well expect news of his hiring will be greeted by the same furor that precipitated the loss of his UIUC job. His academic future remains in limbo.

To reiterate, the courts of this country were not called on to put their considerable weight behind Salaita’s plea to be reinstated on the grounds that his First Amendment rights had been violated. An important legal precedent would have been set had he won, and academic freedom–seemingly perennially under threat when it comes to particular issues in the current political climate–would have received important legal, political, and moral protection. Perhaps I’m too glib in assuming that Salaita would have won, and perhaps his legal team, based on its knowledge of the relevant case law, felt this was the safest path. Fair enough.

Still, when the smoke has cleared, the landscape looks much like the one before. Indeed, university administrators have learned from Chancellor Phyllis Wise‘s behavior how not to fire someone for exercising their  academic freedom, and the amount of settlement lays down a marker all its own. Academics will still remain uncertain about what their free speech rights in this situation.

Steven Salaita, Palestinians, And Autobiography

Last night, along with many Brooklyn College students, faculty (and some external visitors) I attended ‘Silencing Dissent: A Conversation with Steven Salaita, Katherine Franke and Corey Robin‘, organized by the Students for Justice in Palestine. (My previous posts on this event can be found here and here.)

As Robin has noted over at his blog, there was a genuine conversation to be participated in: hard questions, hard answers, disputation. Most importantly, I think, there were moments of discomfort and bluntness.

I want to make note here, very quickly, of  a point of interest that stood out for me (among many, many others).

I was intrigued by Robin’s opening questions to Salaita, asking him to tell the audience a little bit about himself: his family background, his academic interests, his writings etc. At this stage, I was, as someone who had read–and sometimes written–a great deal about La Affaire Salaita, eager and impatient to move on to a discussion of the finer particulars of his case: what’s next in the legal battles, how strong is the First Amendment case etc. Surely, all this was just throat-clearing before the substantive discussion would begin.

But as Salaita began answering these queries, I realized something all over again: all too often, ‘the Palestinian’ is a shadowy figure: not fully filled out, a zone of unknowing into which all too many fears and anxieties are projected.  The state of exile of the Palestinian people, their refugee status, their diasporic existence has often meant that they seem like creatures that flit from place to place, not resting, not stopping to acquire detail, painted on by everyone but themselves. (‘All the Palestinian people, where do they all come from’?) They exist in a blur, our understandings of them underwritten by forces often beyond their control. In that context, the mere fact of hearing a Palestinian speak, telling us ‘where he is coming from’ – whether it is by informing us of the nationality of his father, a Jordanian, or his mother, a Palestinian, born and raised in Nicaragua, and where he was born – Appalachia, if I heard him right! – is enlightening. These simple autobiographical details humanize the too-frequently dehumanized. (The little intellectual autobiography that Salaita provided–for instance, detailing his realization of the notions of colonialism and dispossession tied together American Indian studies and the Palestinian question–did this too.)

For Americans, these particulars Steven Salaita fit into the fabric of American life, into its immigrant past, into cultures and histories and geographies in which they too have a stake. They might force a reckoning of the Palestinian as a ‘new kind of American,’ as heir to long-standing local traditions of political disputation, and enabled a viewing of his dissent in a different light. Without the context of Salaita’s embedding in his past, his family and the places he made his own, his intellectual journeys, those who encounter him will always find it easy to rely on, yet again, on the accounts of those who have an ideological interest in offering alternative narratives of his motivations and inclinations.

Standing By Sponsoring ‘Steven Salaita At Brooklyn College’

Last week, I made note here of the philosophy department at Brooklyn College co-sponsoring ‘Silencing Dissent: A Conversation with Steven Salaita, Katherine Franke and Corey Robin‘, an event organized by the Students for Justice in Palestine and scheduled for Thursday, November 20th.

As you will notice, on the link for the event above, there is a disclaimer, in fine print, which reads:

Co-sponsorship does not imply agreement with, or support of, views expressed at a student-hosted event.

This disclaimer was deemed necessary–in this case, at least–because departments are made skittish by accusations of anti-semitism and anti-Israel stances.  But that is not all. The SJP’s use of the word ‘allies’–again, in the link above for the event–has not sat well with some of my colleagues in the philosophy department: it seems to imply the department is engaged in active endorsement of the ‘content’ of the event.  Perhaps the philosophy department shouldn’t be co-sponsoring any such events for fear of not being able to ‘control the message’?

In response to their expressions of concern, I sent the following email to my colleagues:

Some thoughts.

1. I think it would be an ambitious inference for someone to make that the ‘allies’ in question refer to the departments and organizations sponsoring the event (as opposed to say, those attending the event). Some folks will, no doubt, make precisely such an inference. But I wonder if that were even true, what would we be allies to? I still think it would be precisely those issues which are at stake: academic freedom, free speech, academic governance – and the chance to see them discussed in an open forum.  We should be able to articulate a defense for that even in the face of ill-motivated accusations. There should be no need to backpedal in the face of an accusation that “we are actively promoting a pro-Palestine/anti-Israel stance” when it is false. (Indeed, the event is titled ‘Silencing Dissent”.)

2. The word ‘sponsor’ has had, prior to the BDS event last year, a relatively unambiguous meaning on our campus; it has acquired this notoriety almost entirely due to hostility expressed to events organized by the SJP. Has there ever been such a fuss about the word when some other student organization is involved? Indeed, given that the student organization in question is named Students for Justice in Palestine, their events are *always* going to be characterized as being anti-Semitic or anti-Israel. I mean, JUSTICE in PALESTINE? That’s a red rag if there ever was one. If departments get too skitty when it comes to the SJP, if they do not co-sponsor any events organized by SJP for fear of the furore it will provoke, then they will co-operate in a de-facto ostracization of a student group. “Every time you guys organize an event, we get shit from alumni and the press – no thanks, we can’t co-sponsor.” This doesn’t seem like a great move for us to make as a department of philosophy, ostensible lovers of wisdom. [link added]

I don’t want to broaden this discussion too much, but let us not kid ourselves about what is going on here. A tenured faculty member was fired, from a state university, for his public speech, because it was deemed to render him unfit to fulfill his academic duties. (Let us not forget the administration at UIUC rode roughshod over faculty decisions pertaining to hiring and tenure.) We are doing the right thing by sponsoring this event, by being part of the effort to have Salaita on campus, talking about the issues involved.

Personally, I see it as an honorable act by this department to ‘co-sponsor’ an event that highlights issues of utmost importance to the modern university. We are a philosophy department; we claim to teach analytic and argumentative skills, all the better to puncture hypocrisy, irrationality, and intellectual dishonesty. We should be able to mount an adequate defense of our actions here and in any other situation we think deserves our support. I do not think we should run for the hills because of a dishonest rhetorical tirade, because people insist on imputing motives and reasons for our actions that we do not actually hold.

Sponsoring ‘Steven Salaita At Brooklyn College’

Last Tuesday, the philosophy department of Brooklyn College voted to co-sponsor ‘Silencing Dissent: A Conversation with Steven Salaita, Katherine Franke and Corey Robin‘, an event organized by the Students for Justice in Palestine and scheduled for Thursday, November 20th. (In so doing, we joined the ranks of the departments of political science and sociology, as well as the Shirley Chisholm Project, Brooklyn for Peace, Jewish Voice for Peace – New York Chapter, and the International Socialist Organization.)

Because I had suggested–during the ‘new business’ section of our department meeting–that the department sponsor the event, and because the BDS controversy at Brooklyn College focused so much attention on the business of academic departments ‘sponsoring’ supposedly ‘political’ and ‘one-sided’ events, I offered some arguments about the desirability of the philosophy department signing on as a co-sponsor, even if our vote to do so would attract some of the same hostility the political science department at Brooklyn College had during the BDS event.

Those arguments can be summed up quite easily. Steven Salaita will soon be claiming, in a court of law, that: he lost his job because his constitutional right to free speech was infringed by a state actor; his speech was found offensive on political grounds; his academic freedom was violated; he lost his livelihood because he espoused his political opinions in a manner offensive to some. A debate about these issues, conducted with a law professor and moderated by a political theorist (who also teaches Constitutional Law), would offer to our students–even if they disagreed vehemently with Salaita’s political viewpoints–a chance to engage with many philosophical, political and legal problems, all of which they are exposed to, in theoretical form, in their many readings across our curriculum.

Most broadly, philosophy students would see philosophy in action: they would see arguments presented and analyzed and applied to an issue of contemporary political and moral significance. (One of my colleagues pointed out that our department offers a popular Philosophy and Law major, which ostensibly prepares them for law school admission and careers in the law; this demographic would be an ideal audience for the discussion.)

As might be imagined, given the furore generated by the BDS event last year, there was some trepidation over whether such a departmental vote, or the use of the language of ‘sponsorship’ was a good idea. In response, I analogized our sponsorship decision as akin to the inclusion  of a reading on a class syllabus (During the BDS controversy, I had made a similar argument in response to the claim that sponsoring an event entailed ‘endorsement’ of the speakers’ opinions.) When a philosophy professor does so, she says no more than that she thinks her students should read the reading and engage with it critically; it is worth reading, even if only to criticize it. (This semester, I had included Gobineau in my Social Philosophy reading list; I certainly did not intend to promulgate a theory of the Aryan master race by doing so.)

Lastly, I suggested issues of academic freedom are of utmost relevance and importance for all academic disciplines today. Every department on campus should be interested in a discussion centering on them.

We voted; the motion carried.

Earnin’ a Livin’ With Humiliation as a Perk

A New Yorker cartoon from last year shows a woman walking out from her boss’ office and saying to a co-worker, “That’s the worst humiliation I’ve been subjected to this week.” Or something like that. We laugh, a little nervously, or perhaps wince just a little, because the punchline hits home. Or we breathe a sigh of relief, just in case our workplace isn’t one that subjects us to situations that provoke and inspire cartoonists thus. (It is not an insignificant feature of this cartoon that the workers depicted are women; for more on which, see below.)

For too many workers–whether blue-collar or white–the workplace is where you go to be subjected to behavior that you wish your family would never come to know about.  It is where you go to be subjected to naked exertions of power; in the American context, the workplace is where you check the Constitution at the door. If I had a dollar for every time I have had to remind my students in my Philosophy of Law or Social and Political Philosophy classes about this simple fact…well, let’s just say my kids would be able to afford Brooklyn College’s steadily rising tuition quite easily.

The worker who returns home, seething with barely repressed anger, which is then channeled into either intemperate expressions directed against loved ones (“Having a bad day, love?”) or in seeking the bromides of intoxication–‘A quick one after work to take the edge off?”–is a well-established trope of our modern lives. There is a reason why ‘going postal‘ is one of the modern era’s most distinctive phrases. Anyone that has worked for a ‘boss’ and by that I mean, you know, someone that bosses you around, knows why. All too well. Which brings us back to the cartoon.

Consider then, the following story:

Martha Reyes walked in the employee entrance of the Santa Clara Hyatt Regency to the sound of her male colleagues laughing. She believed they were laughing at her. It was “Housekeeping Appreciation Week” at the Hyatt and to celebrate, a digitally altered photo collage of Hyatt Housekeepers’ faces — including Martha’s and her sister Lorena’s — superimposed on bikini-clad cartoon-bodies was posted on a bulletin board at work. She felt humiliated and embarrassed. But she knew her sister Lorena — also a housekeeper at Hyatt — would be even more so. Martha tore the posters of her and her sister down.Then, with management present, a coworker told Martha she needed to return the photos. She refused and said if they wanted it back, they’d have to take her to court. Hyatt management fired Martha and Lorena just a few weeks later.

Martha and Lorena worked at that hotel as housekeepers for 7 and 24 years respectively….On the day she was fired, the HR Director told Martha she was an “excellent worker” and that there hadn’t been any complaints about her. Before the day Lorena was fired, she had never in her 24 years been written up for a single break violation….What happened to the Reyes sisters is just another example of Hyatt’s culture of disrespect for its workers: Hyatt housekeepers have high rates of injury, and in 2011 various state and federal agencies issued 18 citations against Hyatt for alleged safety violations. Hyatt has even lobbied against new laws that would make housekeeping work safer, and has made it a pattern  of firing housekeepers only to hire subcontractors everywhere from Manilla [sic] to Boston.

 If this story sounds all too familiar, consider signing the petition available at the link above.