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.

Colin Kaepernick Will Not ‘Behave’ And That’s A Damn Good Thing

Colin Kaepernick, quarterback for the San Francisco 49ers will not stand during the playing of the national anthem at NFL games. As he put it, after refusing to stand during the 49ers against the Packers this past weekend:

I am not going to stand up to show pride in a flag for a country that oppresses black people and people of color….To me, this is bigger than football and it would be selfish on my part to look the other way….There are bodies in the street and people getting paid leave and getting away with murder.

And he is prepared for the consequences, for after all, his employer, NFL fans and sponsors, and the media could, and almost certainly will, turn on him:

I have to stand up for people that are oppressed….If they take football away, my endorsements from me, I know that I stood up for what is right.

There are several interesting aspects to Kaepernick’s stance. First, and perhaps most importantly, there is no ambiguity about his stance. This is not a call to ‘come together,’ to ‘heal,’ to ‘forget and forgive’; this is not a bromide or a platitude to split the difference and maintain a quiescent state of affairs. This is a combative gesture of protest, one designed to be provocative, aimed against a symbol that is all too quickly used as protective cover by insecure patriots. They will soon issue the usual furious canards about how Kaepernick has ‘insulted’ those ‘who have died for the country defending our freedoms.’ Second, in so doing, Kaepernick is not merely taking aim at the police; he is indicting a much larger set of institutions, cultures, and practices. Indeed, by rejecting a classical gesture of respect for a national symbol, Kaepernick is rejecting the claims of the nation upon him, one to whom he feels his allegiance should not be directed as long as it does not fulfill its end of the citizenship bargain.

Athletes taking a political stance are not unknown. Some professional athletes have to be pressured or shamed into doing so; they speak up quickly and retreat, worried that their livelihood as will be jeopardized. The First Amendment will not protect them against their private employers. Others–like Mohammad Ali or Tommie Smith and John Carlos during the 1968 Olympics–made more explicit gestures of protest and paid the price. In the American context, because so many athletes are African-American, they can expect that the responses to their political statements will be infected by a racism and anger and contempt that they know is never too far from the surface of their most dedicated fans. They know they are expected to be ‘good blacks’: do your act, entertain us, and when you are done, leave the stage quietly; do not stick around to torment our conscience or force introspection upon us; we like our athletes compliant and docile; do not remind us of where you came from and what you might identify with; indeed, you have no other identity than that given to you by your contract and your employer.

Colin Kaepernick has just refused compliance with these orders. He deserves our respect and admiration and support.

The ‘But The Supreme Court’ Argument For Hillary Clinton

One ‘hold-your-nose-and-vote-for-the-lesser-evil’ argument currently making the rounds for the Hillary Clinton candidacy–ostensibly intended to address the ‘schism’ in the Democratic Party, among the ‘Left’ and ‘progressives’–goes something like this. Vote for Hillary Clinton, even if you disagree with many of her policies, do not consider her entirely trustworthy, and would much rather vote for Bernie Sanders–because she will nominate the right person, the right Justice, to the US Supreme Court. (The Senate will not confirm a nominee put up by President Obama, so this will be one of the first tasks awaiting the new President next year.) No matter what you think, you cannot allow a President Trump to nominate a right-wing ideologue to the Supreme Court, who will then roll back years of hard-won legal victories in many domains: perhaps abortion restrictions, perhaps voting rights, perhaps the power of regulatory administrative agencies to keep our work spaces safe and our drinking water clean.

It is worth noting how much this argument presumes and concedes.

First, and most importantly, the American political system is broken. There is no separation of powers; the judiciary and the executive branch are the new legislatures. The Supreme Court is now a full-blown political institution. Political change will not come about because people’s representatives will legislate their desires and demands into existence; rather, an unelected group of Yale and Harvard educated lawyers will respond directly to petitioners who seek to address some perceived injustice. Persuade the justices; do not bother with the ballot box. Unless you are voting for President.

Second, it places too much faith in the ability of the Supreme Court to drive substantive social and political change. The poster child for this sort of claim is Brown v. Board of Education, which left segregation intact; and as a vigorous debate among professional court watchers–a motley crew of legal scholars and political scientists–confirms, supporting examples can be found quite easily. Despite the expressive impact of the courts and their rulings, political change does not happen because courts direct the polity to change; rather, it occurs because citizens organize and exert pressure at and on the right places and the right actors–in a variety of political domains and institutions.

Third, it suggests–as if acknowledging the unprecedented obstruction of a sitting President by the Republicans over the last eight years–that the President is a lame-duck from the moment he or she drops his or her right hand on being sworn in. No substantive legislation can be driven by that office; the Constitution offers no escape; a recalcitrant House of Representatives and Senate cannot be forced to do perform their legal duties. The President can merely nominate a Supreme Court Justice; and that too before the final year of office (apparently the new normal now given what has transpired since Justice Scalia’s death.)

It is into this impoverished and diminished political landscape that we are steered by the ‘but the Supreme Court’ argument for Hillary Clinton. We are being asked to settle for an immensely diminished Republic.

Mass Incarceration And The ‘Overfederalization’ Of Crime

America’s mass incarceration is the bastard child of many. Among them: racism, the War on Drugs (itself a racist business), the evisceration of the Constitution through ideological interpretive strategies, prosecutorial misconduct, police brutality, and so on. Yet other culprits may be found elsewhere, in other precincts of the legal and political infrastructure of the nation.

In ‘The Balance of Power Between The Federal Government and the States’ (in: Alan Brinkley, Nelson W. Polsby, Kathleen M. Sullivan eds., New Federalist Papers: Essays in Defense of the Constitution, WW. Norton, New York, 1997), Kathleen M. Sullivan writes:

[T]here may be reason for the courts to draw outer limits to federal power when the structural, political, and cultural safeguards of federalism break down and the federal government encroaches needlessly upon areas traditionally and sensibly regulated by the states. The worst example in our recent politics is the overfederalization of crime. The Constitution names only three crimes: counterfeiting coins or securities, piracy on the high seas, and treason. But Congress has created more than three thousand federal crimes under the power to regulate interstate commerce. There are many crimes that should be federal, such as bombing federal buildings or sending explosives through the mail. But should it also be a federal crime to grow marijuana at home or to hijack a car around the corner? Federal crimes have proliferated not because it is good crime policy but because it is good politics: as Chief Justice Rehnquist has observed, “the political combination of creating a federal offense and attaching a mandatory minimum sentence has become a veritable siren song for Congress,” loud enough to drown out any careful consideration of the comparative advantages of state and federal crime control.

Shifting crime control from the states to the federal government in purely local cases diverts the work of federal investigators, prosecutors, and judges from areas of greater federal need. It also fills federal prisons with non-violent and first-time offenders who occupy space that could better be used for violent, career criminals whose operations cross state lines. There is no reason why the new federal crimes may not be handled by the states, as they have been traditionally, unless they involve multistate enterprises or intrastate enterprises so vast as to overwhelm the resources of state authorities.

The federalization of a particular crime acts as a ‘promotion’ of sorts: it elevates the perceived undesirability and dangerousness of the crime; it thus clears the way for harsher sentencing. As Rehnquist’s remark above suggests, the legal system’s response to a particular crime may be viewed as qualitatively and quantitatively inferior till the time it federalizes it and adds a harsh minimum sentence; only such a combination will assuage the retributivist impulse that so seems to animate the punishment policies of our penal system. Moreover, the current state of affairs lends itself to a situation where a conservatively inclined Supreme Court could, under the guise of tilting this balance of power back to the states, strike down progressive legislation. As Martin Garbus noted in Courting Disaster: The Supreme Court and the Unmaking of American Law (Henry Holt, New York, 2002, pp. 128-130) the Supreme Court struck down, precisely as part of an ideological anti-federalist strategy, in United States vs. Lopez“the first United States Supreme Court case since the New Deal to set limits to Congress’s power under the Commerce Clause of the United States Constitution“, an act of Congress criminalizing possession of a handgun at school.

The Supreme Court’s Commerce clause rulings helped unite the nation, but as the history of mass incarceration shows, it has helped create a nation within a nation too, one locked up and discriminated against for life.

 

Antonin Scalia And His Incoherent, Hierarchy-Loving, Theory Of Constitutional Interpretation

I taught Antonin Scalia‘s writings–as found in his court opinions–on three occasions in my philosophy of law class. His theory of constitutional interpretation–originalism–was incoherent. His aggressive rhetoric, directed at those who would dare petition the highest court of the land for redress, was tasteless. He was a bully, and a blowhard. Like Christopher Hitchens, he will be revered by many whose taste runs to the skillful deployment of language for the belittling of others. Among the most frequent targets of scorn were his colleagues on the Supreme Court, who were always unfailingly polite to him, and were rewarded with ample sarcasm and invective. His judgments frequently crushed the weak, denied hope to the condemned (I suspect nothing made Scalia quite as tumescent as denying a stay of execution for someone on death row), and scorned the cries for justice issuing from those who had found themselves on the wrong side of the power equations Scalia found written into the US Constitution.

Because that, in a nutshell, mostly, was Scalia’s theory of constitutional interpretation. Originalism, “the theory of constitutional interpretation that seeks to apply the understanding of those who drafted and ratified the Constitution,” relies on a wholly imaginary “original understanding”–the attempt to determine and ascertain it convinces, all too soon, those who would so try, that the effort is futile. The best analysis of the futility of such a determination may be found in Paul Brest‘s analysis in  The Misconceived Quest for the Original Understanding. Hint: Whose understanding? Do ratification votes capture ‘understanding’ or do they point to clumsy off-stage power negotiations? And so on.

Originalism, as a political theory of legal interpretation, is generally chosen by those who would like to preserve very particular power relations, those present at the time of the drafting of the US constitution. An ‘originalist’ is a fancy term used to describe those who would prefer the world of 1787, and all the limited political and moral understandings that underwrote its legal arrangements. Those original relations, which did not acknowledge or recognize slavery or the political rights of women, eminently suit the continued maintenance and perpetuation of very particular hierarchies of power.

Those are the ones Antonin Scalia wanted to preserve. He was a true-blue conservative, a hierarchy-loving reactionary who shivered when he contemplated the masses rising up –in any shape, form, or fashion. He was no champion of the people; his writings reeked with contempt for them. (I can remember him caring about the voice of the people when pro-life protesters tried to infringe on the constitutional rights of those who wanted to have an abortion.) When all the fancy dressing of the elaborate rhetoric that Scalia deployed was stripped away–in cases that most starkly brought the legally dispossessed into conflict with those well entrenched in power, corporate or state-what always stood revealed was a veneration of power and fury at those who had dared challenge it.

It’s perfectly alright to speak ill of the dead when they were public figures. Scalia sent many to their deaths, he scorned the struggles of those claiming their legal and political rights; I am not upset his tenure on this earth is over.

Step This Way For The Deunionized American Workplace

American unions look headed for another legal beating in the US Supreme Court. Pretty soon, we’ll be able to drop all pretense and just advocate beatings until the morale–of American workers–improves. The Supreme Court is about to hand their overseers a slightly thicker, more knotted, whip.

Ten Californian teachers have sued their union–on First Amendment grounds–alleging that by paying union dues “they are being forced to pay money to support positions with which they disagree.” Their plea will likely find sympathetic ears on the current almost-completely-fallen-over-to-the-right Supreme Court, which has twice ruled that “the First Amendment bars forcing government workers to make payments to unions.” These are no innocent plaintiffs; they are an integral component of a “decades-long legal campaign to undermine public unions.” (Their lawsuit has been organized by the Center for Individual Rights, a libertarian group which enjoys funding from conservative foundations.)

Of course, the plaintiffs will continue to benefit from the union’s work to secure higher wages and workplace benefits–that’s just how collective bargaining works. But the rugged individualist at the head of the lawsuit, Mr. Elrich, will have none of it. As he notes, presumably standing on a cliff overlooking the American West, through which he will roll on his covered wagon, fighting off various governmental depredators:

“I can negotiate for myself,” he said. “I’m a good teacher, highly respected, and I can go anywhere.”

If the experience of American workers in the years following the extensive deunionization of the American workplace is any indication, most teachers will  likely “go” down the ladder of economic and social advancement. But freedom, fuck yeah, so that’s cool.

The plaintiff’s First Amendment concerns appear overblown:

Solicitor General Donald B. Verrilli Jr., representing the Obama administration, urged the justices to leave the Abood ruling alone. Reaping the benefits of collective bargaining, he said, is not the same as being compelled to support a political position.

 “The typical worker would surely perceive a significant difference between, on the one hand, contributing to a union’s legal and research costs to develop a collective-bargaining proposal for his own unit, and, on the other hand, making a political contribution to a union-favored candidate for governor,” Mr. Verrilli wrote.

Kamala D. Harris, California’s attorney general, told the justices in a brief that workers who object to the positions taken by unions suffer no First Amendment injuries because “they remain free to communicate their views to school officials, their colleagues and the public at large.”

Unsurprisingly, there is plenty of market language forthcoming from the plaintiffs

Ms. Cuen said the unions might need to improve to keep their members.

“If they’re worried about not getting forced money from everyone, what does that say about their product?” she asked. “So maybe if we win the case and they’re worried about people leaving in droves, they might need to improve their product and make it a little more user-friendly.”

I’m surprised Ms. Cuen forgot to throw in talk of union ‘brands’ and how they are losing their ‘customers.’ Perhaps she’ll do in her press release following their legal victory.

Gideon’s Army: Fighting A Just War

The first time I saw Gideon’s Army, Dawn Porter‘s documentary about three public defenders fighting a lonely battle in the American South, I watched impassively, even as anger and sadness swirled within me. The second time I did so–yesterday, in a classroom with the students in my Philosophy of Law class–I blinked back tears. (More anon on how the company we keep in our movie-watching experiences changes our perceptions of the work on display.)

I could see horrified expressions in the classroom; I could sense these young men and women were coming to realize–if only in part–the true dimensions of the cruel and inhumane penal system that destroys so many lives everyday. When the lights came on, I asked for reactions. “It’s a disgrace” was the first one. I didn’t need to ask what was.

Here is how it goes. Roughly. If you are arrested, you will be thrown in jail. To be released before you are tried, bond or bail must be posted. If you cannot afford those, you remain in jail–while the remnants of your life, your family and your career for instance, go to seed. Once you go to trial, if you cannot afford legal representation, a public defender will be appointed for you. (Thanks to the Sixth Amendment and Gideon vs. Wainright–the history of which you can find in Anthony LewisGideon’s Trumpet, legal counsel is now every defendant’s constitutional right.)

Unfortunately, the numbers are against those accused of crimes. Twelve million Americans are arrested every year; many of them will be represented by an ‘army’ of fifteen thousand public defenders. They are overworked–some have as many as 180 cases on their plate; they are underpaid–they struggle to make rent and pay off loans. Sometimes their clients are grateful, sometimes not. They must navigate through a system that, contrary to its lofty ideals of ‘innocent until proven guilty,’ operates instead on the dictum ‘guilty until proven innocent.’ They are attempting to rescue lives from being thrown into the waste heap that is the American prison system; very few institutions seem to support them. Some institutional structures of the society they are embedded in–like poverty and racism, and of course, that monster, the war on drugs–work against them at every step. (So do some matters of legal procedure.) Unsurprisingly many public defenders leave for greener pastures. Who can blame them?

Justice is hard to obtain under these circumstances. Even the guilty do not seem to deserve the savageness of their penalties: Five years for robbing a man of ninety-six dollars? Ten years–maybe even a life sentence–with no possibility of parole for armed robbery? But it gets worse. Sometimes–too often–the innocent plead guilty to crimes they never committed, unwilling and unable to go to trial and take the risk they might go away for even longer.  Let the horror of that statement sink in for a second: an innocent person might be condemned to spend years of their life in a jail, a venue where they will be subjected to violence of many different stripes, only to emerge with their lives shattered, their future prospects irreparably damaged.

This system, this supposed dispenser of justice and keeper of the peace, is anything but. It is immoral and criminal. It does not deserve our allegiance.