Tag Archives: law

Still a Muslim Ban, Still Blocked

Judges have traditionally assumed that the executive branch is best equipped to deal with national security and foreign affairs, and so courts should defer to the judgment of the President in those areas. But what if the President is acting in bad faith?


Last week I characterized the second version of Trump’s Muslim ban like this:

the revised ban is more orderly than the original, and won’t produce the same kind of drama … but the essence is the same: It’s still a Muslim ban.

The new ban avoided the chaos and obvious due-process violations that made the original so easy for the courts to strike down. So the next round of cases would have to go to the heart of the matter: Does the order arise out of an unconstitutional intent to discriminate on the basis of religion?

The three-judge appellate panel that upheld the temporary restraining order against the original ban had reserved judgment on the religious-discrimination claim, reasoning that the due-process violations already justified a TRO. I suspect it did this to preserve the unanimity of its ruling, which made a stronger statement than a 2-1 decision. (In the face of that unanimity, Trump decided to revise that ban rather than appeal to the Supreme Court.)

To justify a religious-discrimination finding (i.e., one based on the First Amendment’s prohibition against the government establishing a religion, known as the Establishment Clause), a judge would have to reach outside the text of Trump’s executive order and connect it both to the previous attempt at a Muslim ban, and to the anti-Muslim bigotry in Trump’s campaign. I wondered if judges would have the guts to do that.

This week, two did: one in Hawaii and the other in Maryland. The new order was supposed to take effect at midnight Thursday morning, but Wednesday evening a federal judge in Hawaii issued a temporary restraining order blocking it nationwide. “Temporary” means until his court has a chance to hold more complete hearings on the case, and quite likely until all appeals are resolved. Judge Derrick Watson wrote:

Because a reasonable, objective observer — enlightened by the specific historical context, contemporaneous public statements, and specific sequence of events leading to its issuance — would conclude that the Executive Order was issued with a purpose to disfavor a particular religion, in spite of its stated, religiously-neutral purpose, the Court finds that Plaintiffs, and Dr. Elshikh in particular, are likely to succeed on the merits of their Establishment Clause claim.

Because it’s the second time around, some issues are easier, like standing: Who is sufficiently harmed by the executive order that they have grounds to sue? In this case, the State of Hawaii sued, claiming the same standing that the 9th Circuit Court of Appeals had already recognized the State of Washington having: The state operates a state university system, which recruits both students and faculty from the banned countries. Since Hawaii falls within the 9th Circuit, that doesn’t have to be argued again. (But there is a wrinkle: The new ban contains a more detailed process for obtaining waivers, so if this is the basis of standing, it can be argued that the case is not yet “ripe”: Perhaps the states need to wait and see how their recruited students and faculty fare in the waiver process. Judge Watson does not appear to consider this argument.)

Judge Watson also recognized the standing of Dr. Ismail Elshikh, a Muslim-American of Egyptian descent who lives in Hawaii and is the imam of the Muslim Association of Hawaii. Dr. Elshikh claims that his Syrian mother-in-law will be hindered from visiting his family in Hawaii, and also that he, his family, and his organization will suffer from the stigma that the order casts on Muslims in general.

In order not to violate the Establishment Clause, a government action must satisfy three criteria, collectively known as the Lemon Test. Judge Watson concluded that the Muslim Ban failed the first test: having  “a primary secular purpose”. (Here’s an example of secular purpose that passes muster: It’s OK for Medicaid funding to pass through Catholic hospitals, because the government’s primary purpose is to pay for medical care, not to promote Catholicism.)

Watson acknowledges that the text of the new executive order is “religiously neutral”. In other words, it does not mention Islam or any other religion by name. It applies equally to all residents of the six targeted countries, and does not apply to the majority of the world’s Muslims, who live in other countries. But he quoted the 9th Circuit’s opinion on the original ban:

It is well established that evidence of purpose beyond the face of the challenged law may be considered in evaluating Establishment and Equal Protection Clause claims.

and says that

The Supreme Court has been even more emphatic: courts may not “turn a blind eye to the context in which [a] policy arose.” … A review of the historical background here makes plain why the Government wishes to focus on the Executive Order’s text, rather than its context. The record before this Court is unique. It includes significant and unrebutted evidence of religious animus driving the promulgation of the Executive Order and its related predecessor.

Judge Watson traces the history of Trump’s explicit call for a Muslim ban, including his admission that his subsequent policy of “extreme vetting” was the Muslim ban in a new form.

Mr. Trump replied: “The Muslim ban is something that in some form has morphed into a[n] extreme vetting from certain areas of the world.” When asked to clarify whether “the Muslim ban still stands,” Mr. Trump said, “It’s called extreme vetting.”

Watson acknowledges the Trump administration’s point that judges should not look too hard for “veiled” and “secret” motives that make an action by the political branches of government unconstitutional. But he argues that there is nothing veiled or secret going on: The anti-Muslim motive has been front and center from the beginning, and the path from Trump’s original goal of a “Muslim ban” to the current order has likewise played out in public, in what he describes as “plain words”. Therefore:

Any reasonable, objective observer would conclude, as does the Court for purposes of the instant Motion for TRO, that the stated secular purpose of the Executive Order is, at the very least, “secondary to a religious objective” of temporarily suspending the entry of Muslims.


The Maryland ruling by Judge Theodor Chuang lays out similar logic. He cites many of the same public statements, and also the process by which the orders have been written:

the history of public statements continues to provide a convincing case that the purpose of the Second Executive Order remains the realization of the long-envisioned Muslim ban.

… In this highly unique case, the record provides strong indications that the national security purpose is not the primary purpose for the travel ban. First, the core concept of the travel ban was adopted in the First Executive Order, without the interagency consultation process typically followed on such matters. … The fact that the White House took the highly irregular step of first introducing the travel ban without receiving the input and judgment of the relevant national security agencies strongly suggests that the religious purpose was primary, and the national security purpose, even if legitimate, is a secondary post hoc rationale.

Second, the fact that the national security rationale was offered only after courts issued injunctions against the First Executive Order suggests that the religious purpose has been, and remains, primary.


Both opinions cite McCready County v ACLU, a 2005 Supreme Court ruling. Every time a court banned the Ten Commandments displays in McCready County’s schools and courthouses, they’d install new ones that supposedly fixed the problems the courts had cited. The case is a paradigm of a particular kind of denseness: when officials think they can achieve an unconstitutional purpose if they just get the details right.

McCready County and its religious-right fans kept reading judicial rejections as blueprints for designing the next attempt in the series, but eventually the series itself became evidence of an intent to endorse Christianity. The County argued that only the latest display mattered, and the Court shouldn’t consider the history of how they came up with it. Justice Souter disagreed:

But the world is not made brand new every morning, and the Counties are simply asking us to ignore perfectly probative evidence; they want an absentminded objective observer, not one presumed to be familiar with the history of the government’s actions and competent to learn what history has to show.

I think of McCready County’s religious displays (and the Muslim ban) like the carousing husband who believes his wife should be happy because he’s cleaned up all the telltale signs that have made her mad in the past: “I brushed the long hair off my suit, I cleaned the lipstick off my collar, I used mints to cover the alcohol on my breath … what do you want from me?”


Meanwhile, the 9th Circuit Court of Appeals as a whole decided not to reconsider the decision of the three-judge panel of its members who blocked the original executive order. But five of the 25 active judges signed an opinion denouncing that ruling. The opinion was written by Jay Bybee, who you may remember from his previous job: As Deputy Assistant Attorney General under George W. Bush, he signed the famous “torture memos” that OK’d waterboarding and other “enhanced interrogation” techniques. (We’re never going to forget that, Jay. If you live to be 100, the headline on your obituary will still read: “Signer of Torture Memos Dies”.)


On the Lawfare blog, Benjamin Wittes of the Brookings Institute has an interesting analysis: He thinks judges are giving less deference to Trump than they would to an ordinary president, because they see him as untrustworthy.

Perhaps everything Blackman and Margulies and Bybee are saying is right as a matter of law in the regular order, but there’s an unexpressed legal principle functionally at work here: That President Trump is a crazy person whose oath of office large numbers of judges simply don’t trust and to whom, therefore, a whole lot of normal rules of judicial conduct do not apply.

In this scenario, the underlying law is not actually moving much, or moving or at all, but the normal rules of deference and presumption of regularity in presidential conduct—the rules that underlie norms like not looking behind a facially valid purpose for a visa issuance decision—simply don’t apply to Trump. As we’ve argued, these norms are a function of the president’s oath of office and the working assumption that the President is bound by the Take Care Clause. If the judiciary doesn’t trust the sincerity of the president’s oath and doesn’t have any presumption that the president will take care that the laws are faithfully executed, why on earth would it assume that a facially valid purpose of the executive is its actual purpose?


And finally, speaking of crazy people, Mike Huckabee thinks Trump should just ignore the court orders, like Andrew Jackson did when he expelled the Cherokee nation from Georgia.

One measure of how far wrong things have gone is the number of shameful episodes in American history that are being cited as precedents. Here: the Trail of Tears. Previously, the Japanese internment as justification for a national Muslim registry.

What to do with Neil Gorsuch?

If these were normal times, if, say, Antonin Scalia had dropped dead yesterday, leaving new Republican President Jeb Bush (elected, as presidents usually are, with more votes than the other major-party candidate) the opportunity to nominate Neil Gorsuch to the Supreme Court, I’d expect Gorsuch to be confirmed without a lot of bother.

I’d be bummed at the prospect of that seat remaining conservative for another 30-40 years. And I’d find a lot to criticize in Gorsuch’s approach to the law — mainly that he’s far too willing to side with the powerful against the powerless, and to invent new constitutional rights for corporations and fundamentalist Christians. But he is within the broad stream of American jurisprudence, and people who understand these things better than I do consider him an outstanding example of a conservative judge.

The Founders intended presidents to pick judges, and for the Senate to use its advise-and-consent power to weed out incompetence and cronyism. Gorsuch isn’t a Trump crony, and he seems competent. So after some hearings and speeches and a good look around for skeletons in his closet, I’d expect him to be confirmed with a large number of Democratic votes.

In normal times. Lawrence Lessig is looking at it pretty much the same way:

In normal times, with a normal (right wing) president, Neil Gorsuch would be a fine nominee for the Supreme Court. One can disagree with his views (I do); one can disagree with the manner in which he understands “originalism” (I do, in part). But if you believe (as I do) that an ordinary President has an ordinary right to choose the political character of his or her Supreme Court nominee, then, in ordinary times, the only question should be whether the nominee is qualified. Gorsuch is at least an order of magnitude better than qualified. He is a great, if very conservative, judge.

But these are not ordinary times.

No, they aren’t. The reason this seat is open is that the Republican Senate blockaded it during the last year of the Obama administration. If they had objected to Merrick Garland for some reason, they could have voted him down and Obama could have nominated someone else. Maybe Obama and McConnell could even have gotten together and agreed on somebody, moving the two parties back from the civil-war path they’ve been on for several years.

Voting down Garland would have been unprecedented in itself, because he is exactly the kind of experienced, respected, well-within-the-mainstream judge who usually sails through the Senate. But at least formally it would have fit the constitutional model. Instead, by simply refusing to hold hearings and announcing explicitly that they would similarly refuse any other Obama nominee, regardless of qualifications, Senate Republicans moved completely out of the previous course of American history.

That’s why it’s ironic that Gorsuch bills himself as an originalist, a judge who tries to find the lawmakers’ original intent and rule according to it — because the only reason this seat is open at all is that Republicans decided to let the Founders’ original intent be damned.

But their guy is in the White House now, so they want to turn the normal rules back on again, like the kid on the playground who calls time-out just before you tag him, and time-in when he’s safe on base. The question is whether Democrats should let them get away with it, and, if not, what the other options are.

This isn’t a stand-alone circumstance; it’s  part of the long-term decline of America’s democratic norms, which I’ve been writing about for several years (most recently when the Republicans blocked Garland). The model I always cite is the decline of the Roman Republic, where the norms were repeatedly whittled down for about a century until they were ultimately swept away by Augustus, who established the Empire.

Moments like this underline just how difficult it is to escape that downward spiral: Giving in won’t get you out of it, and there is usually not a reprisal option of just the right size to make your point without pushing further down the spiral.

For example, suppose Senate Democrats decided that they wanted to set a good example for future opposition parties and consider Gorsuch on his merits, independent of the history of this vacancy. In other words, they would accept getting rooked out of a liberal Supreme Court majority, in exchange for ending the cycle of attack-and-reprisal. They would sacrifice their partisan interests for the greater good of democracy in the United States.

The problem: This gracious move wouldn’t end the cycle of attack-and-reprisal. Quite the opposite, it would establish the precedent that Republicans can suspend democratic norms whenever it works to their advantage, and pay no price for it. It’s like when some guy sucker-punches you and then wants to declare peace. Agreeing to that deal won’t get you peace, it will just get you sucker-punched again somewhere down the line.

But what’s the alternative? Democrats are at a 48-52 disadvantage, so they can only block Gorsuch by filibustering. Republicans might then decide to escalate further by eliminating the filibuster on Supreme Court nominations (the only kind of nomination that was exempted when the Democrats limited the filibuster after Republicans came up with the unprecedented tactic of blockading positions entirely rather than just blocking particular nominees for cause). And if they don’t nuke the filibuster, and Gorsuch gets blocked, then what? Do the same thing with the next nominee, on and on for four years? That would also be an escalation. (Some Republicans threatened to do this if Hillary Clinton got elected, but it’s not clear whether they would have held together on that point.)

There is no reprisal of precisely the right size, and so we’re left with bad choices. Ideally, the process would go like this: Democrats would block Gorsuch, and Republicans would then negotiate in good faith, resulting in a nominee who moved the Court closer to consensus than to polarization. In other words, a new swing vote — someone ideologically between the most liberal conservative justice (Kennedy) and the most conservative liberal justice (Breyer). In other words, somebody in the mold of Sandra Day O’Connor. (It’s worth pointing out that Justice Garland would have fit that description as well. Obama was trying to do the right thing, and was spurned by Republicans.)

Do I expect that to happen? No. But I think we need to start down that road and let the Republicans be the ones to step off of it. So I support filibustering Gorsuch, while wishing somebody would offer me another viable option.


The argument Republicans made last year was that the American people should decide whether the Court flips from a conservative majority to a liberal majority. That’s explicitly not what the Founders wanted — they intentionally insulated the Court from politics — but even on those terms Gorsuch should be rejected, because the American people did not vote for Trump. As I said two weeks ago, Trump winning in the Electoral College makes him president; but losing the popular vote by such a wide margin wipes out any claim he might have to a mandate from the people. He certainly received no mandate to move the Court to the right.


If we ever do get back to a sane judicial appointment process, one piece of it should be that presidents stop appointing such young justices. Gorsuch is 49. If he lives as long as Ruth Bader Ginsberg already has, he’ll still be on the Court in 2051. This is a bipartisan thing, as presidents attempt to extend their influence as far into the future as possible: John Roberts was 50 when he joined the Court, Sonia Sotomayor 45.

This is another way that Merrick Garland would have been a step in the right direction, since he is 64. The Supreme Court ought to be the capstone of a long, distinguished career, not an attempt to claim an advantage 30 years in the future. It used to be that way: Oliver Wendell Holmes was 61 when Teddy Roosevelt appointed him in 1902. Thurgood Marshall was 59.

Another way to achieve the same result would be to term-limit Supreme Court justices at, say, 20 years. But that would take a constitutional amendment. Lifetime appointments were supposed to shield the Court from outside influences: It would be your final job, so you couldn’t be threatened with firing or bribed with the offer of a position after you left the Court. We’d have to address that problem some other way, but it doesn’t seem unsolvable.


Lawrence Lessig makes an alternative proposal: Gorsuch gets a hearing after McConnell resigns as majority leader. He calls it a “hypocrisy tax”. I think that’s about as likely to happen as getting an O’Connor-like replacement for Gorsuch.


Richard Primus expresses a somewhat nuanced approach on Balkinization: Yes, the Senate did wrong by Garland, but we can’t lose sight of the fact that the Republic survived Scalia and it will survive Gorsuch as well; the real threat is Trump. So the opposition to Gorsuch should always have its eye on Trump.

the Democrats need to see the confirmation process as an opportunity for shaping public discussion about Trump rather than as an occasion for attacking Gorsuch. Time spent attacking Gorsuch in particular (whether about qualifications or about substantive views or pretty much anything else) might not be time well spent: he is going to be confirmed. But what Democrats can do, I’d think, is keep saying that we are only here because the Republicans stonewalled a nominee at least as qualified as Gorsuch for no justifiable reason, and that the plurality of American voters voted to authorize Hillary Clinton, not Donald Trump, to fill the seat. They can ask Gorsuch himself to stand by his earlier written statements that Garland was a highly qualified nominee (for the DC Circuit) and to ask him whether the stonewall was appropriate. And they can ask him what he thinks about all sorts of Trump’s actions and statements. Is it appropriate for a public official to attack a federal judge as biased on the grounds of the judge’s ethnicity? What is the point of the Emoluments Clause? Do you think that this or that statement (quoted from Trump) is consistent with our constitutional values? And so on. Gorsuch might or might not answer, but the Democrats should find good ways to keep asking and to make those questions a big part of what people hear and talk about when they hear and talk about this process.

I don’t see why we can’t oppose both Gorsuch and Trump, but I agree this far: Personal attacks on Gorsuch, beyond his legal record, distract from the main narrative — unless somebody discovers something so damning that it will turn Republicans against him.

The Ban: Ten Days of Drama

It’s hard to believe how much drama has played out in the last ten days. Even the Advise and Consent style political novels I loved in high school didn’t move this fast.

It all started a week ago Friday, when President Trump signed Executive Order 13769 (a.k.a “the Muslim ban” and “it’s not a Muslim ban“) which Wikipedia summarizes like this:

The order limited refugee arrivals to 50,000 and suspended the U.S. Refugee Admissions Program (USRAP) for 120 days, after which the program would be conditionally resumed for individual countries while prioritizing refugee claims from persecuted minority religions. The order also indefinitely suspended the entry of Syrian refugees. Further, the order suspended the entry of alien nationals from seven Muslim-majority countries — Iraq, Iran, Libya, Somalia, Sudan, Syria and Yemen — for 90 days, after which an updated list will be made. The order allows exceptions to these suspensions on a case-by-case basis. The Department of Homeland Security later exempted U.S. lawful permanent residents (green card holders).

The immediate result was chaos. The order had been reviewed by the Justice Department’s Office of Legal Counsel for “form and legality”, but beyond that was pretty much unvetted, parts of it apparently leaping straight into the world from Steve Bannon’s brain like a malformed Athena from a not-very-godlike Zeus-wannabee. Congressional leaders were not consulted. (Though Trump apparently was helped by Republican congressional staffers who were obliged by a non-disclosure agreement not to tell their bosses; so far history does not record what the out-in-the-cold Republican congressmen think of that.) The border-control officials who were supposed to implement the ban in America’s airports were not briefed in advance. (NYT: “customs and border control officials got instructions at 3 a.m. Saturday and some arrived at their posts later that morning still not knowing how to carry out the president’s orders.”)

People already in the air, including permanent legal residents (i.e. green-card holders) who were returning to their jobs or students with valid visas coming back to their universities, were sent back or detained in airports. City University of New York claims it has 100 students from the affected countries. Two Iraqis who had helped the American military and feared for their lives if they had to return to Iraq were detained at JFK airport.

The public response was immediate. On Saturday, crowds of protesters spontaneously formed at JFK and other airports. By 9 p.m., a federal judge had issued an order preventing the administration from sending the detainees back where they came from. Sunday, the administration backed off of the restrictions on green-card holders.

Internal dissent. On Monday, acting Attorney General Sally Yates (an Obama appointee held over until Trump can get his own AG approved) ordered the Justice Department not to defend Trump’s order in court.

I am responsible for ensuring that the positions we take in court remain consistent with this institution’s solemn obligation to always seek justice and stand for what is right. At present, I am not convinced that the defense of the Executive Order is consistent with these responsibilities nor am I convinced that the Executive Order is lawful.

Also on Monday, an internal State Department dissent-channel memo — reportedly with over 1000 signatures — leaked to the press. It called the Trump order “counter-productive” and said

Looking beyond its effectiveness, this ban stands in opposition to the core American and constitutional values that we, as federal employees, took an oath to uphold.

Rejecting the whole concept of internal dissent from experienced professionals, Press Secretary Sean Spicer called the signers “career bureaucrats” and responded that “they should either get with the program or they can go”. Yates was fired Monday night in typical Trump fashion; the White House statement descended from policy disagreement into personal insult: Yates had “betrayed the Justice Department” and was “weak on borders and very weak on illegal immigration”. (One of Trump’s most disturbing traits is his apparent belief that it’s not enough simply to overcome opposition; the people who oppose him must be shamed and punished. This authoritarian impulse alone should have disqualified him from the presidency.)

Also Monday night, Samantha Bee weighed in.

Defiance. Throughout the week, court orders piled up from judges around the country, and multiple reports indicated that the Trump administration was at best slow-rolling its compliance and at worst simply defying the orders. Friday Politico reported:

Hours after a federal judge ordered customs officers to provide lawyers to travelers detained at Dulles airport last Saturday, senior Trump administration officials instructed the guards to give the travelers phone numbers of legal services organizations, ignoring a mass of lawyers who had gathered at the airport. Most of the legal services offices were closed for the weekend, effectively preventing travelers with green cards from obtaining legal advice.

The move was part of what lawyers contend was a series of foot-dragging actions by the administration that appeared to violate court orders against the Trump’s controversial travel ban. … The [Customs and Border Protection] officers at airports were not rogue individual actors, according to the documents obtained and people interviewed by POLITICO. Rather, the agents on the ground were following orders from high in their chain of command.

For example, a federal judge in Boston ordered the administration to admit travelers with valid visas. The travelers did not get into the country, though, because the administration claimed it had the power to revoke those visas. Slate‘s Jeremy Stahl interviewed an immigration lawyer, who concluded:

When you have an executive that is acting the way that Donald Trump is acting and not controlling what his officers are doing in noncomplying, that’s a constitutional—that’s leading to a constitutional crisis.

Yonatan Zunger put a dark spin on it:

[T]he administration is testing the extent to which the DHS (and other executive agencies) can act and ignore orders from the other branches of government. This is as serious as it can possibly get: all of the arguments about whether order X or Y is unconstitutional mean nothing if elements of the government are executing them and the courts are being ignored.

Yesterday was the trial balloon for a coup d’état against the United States. It gave them useful information.

Writing on the Lawfare blog, Ben Wittes put a dark spin on the whole enterprise: He thinks the ban’s whole purpose is to appeal to the anti-Muslim bigots in Trump’s base, and has nothing to do with keeping Americans safe.

Put simply, I don’t believe that the stated purpose is the real purpose. This is the first policy the United States has adopted in the post-9/11 era about which I have ever said this. It’s a grave charge, I know, and I’m not making it lightly. But in the rational pursuit of security objectives, you don’t marginalize your expert security agencies and fail to vet your ideas through a normal interagency process. You don’t target the wrong people in nutty ways when you’re rationally pursuing real security objectives.

When do you do these things? You do these things when you’re elevating the symbolic politics of bashing Islam over any actual security interest. You do them when you’ve made a deliberate decision to burden human lives to make a public point. In other words, this is not a document that will cause hardship and misery because of regrettable incidental impacts on people injured in the pursuit of a public good. It will cause hardship and misery for tens or hundreds of thousands of people because that is precisely what it is intended to do.

Where it stands. Friday, a federal court ruling came down from Judge James Robart in Seattle, applying nationally and stated in as sweeping terms as possible, clearly intending to allow no wiggle room. Saturday, the Trump administration said it would comply, pending appeal.

Meanwhile, a State Department spokesperson tells NPR that officials with the department are also adhering to the decision. The department has provisionally revoked somewhere between 60,000 and 100,000 individuals’ visas, according to different accounts; under Saturday’s announcement, the State Department says that move has been reversed — and that “individuals with visas that were not physically cancelled may now travel if the visa is otherwise valid.”

Trump again personalized the conflict, tweeting:

The opinion of this so-called judge, which essentially takes law-enforcement away from our country, is ridiculous and will be overturned!

(Lots of people pointed out that Robart’s claim to be a judge is at least as good, if not better, than Trump’s claim to be a president.) Late Saturday night, the 9th Circuit Court of Appeals denied the Justice Department’s motion to reverse the suspension of Trump’s executive order. The order will remain suspended until the court can make a ruling on the merits of the case. That could happen as early as today, or not.

Over the weekend, congressional Republicans gave strong indications that they don’t want this conflict to escalate to a constitutional crisis. Sunday, Mitch McConnell, who (like Paul Ryan) has been stepping very carefully to avoid the President’s sensitive toes, told CNN’s Jake Tapper:

The courts are going to decide whether the executive order the President issued is valid or not, and we all follow court orders.

The unstated implication is: “You’d better follow them too.”

What will the courts decide? Deborah Pearlstein posted a good summary of the arguments both ways on Jack Balkin’s legal blog Balkinization. And the answer is: It’s a close call.

On the one hand, the Constitution gives the President a lot of power to manage our dealings with other countries, and Congress has supplemented that power in various ways over the years. So the administration has a lot of possible arguments it might make to defend its actions.

On the other hand, courts often look beyond simple questions of authority to rule on intent: If your clear intent is to achieve an unconstitutional result, then a court might block your actions even if they fall within the letter of your legal powers. A good example of this came last summer, when a federal appeals court struck down North Carolina’s voter-suppression law. Everything in the law — changing the dates and hours of early voting, requiring IDs, etc. — was within the legislature’s power. But the fact that legislators researched how and when black North Carolinians vote, and then systematically restricted their favorite options, pushed the law beyond the pale.

Here, there is a clear record of intent to create a religious test for entering the United States, which would be unconstitutional. Trump promised a Muslim ban during his campaign. Advisors like Rudy Giuliani have spoken in public about coaching Trump on how to “do it legally” by focusing on the threat of terrorism from particular countries rather than on religion. The order’s provisions to prioritize religious minorities for exceptions to the ban seems intended to make sure Christians aren’t caught in a ban intended for Muslims. (If the administration is serious about offering refuge to persecuted religious minorities, that provision should apply to a lot of Muslims as well: Shia in Sunni-majority countries, Sunni in Shia-majority countries, and Sufis and other smaller Muslim sects everywhere. Will it? Or is it just a Christian loophole?)

Will that be enough to convince an appeals court, and to split the 4-4 Supreme Court so that it doesn’t overrule? Maybe. But even if it does, that ruling is likely to illuminate a path that would allow some future objectionable executive order to pass legal muster.

Then what? Pearlstein says it’s not enough to count on the courts: Protesters need to focus their attention on Congress as well:

There is, however, one foolproof way to ensure the President’s order in its current form does not stand. And it lies with the body that gave the President the authority to issue it in the first place. A growing, bipartisan group of congressional representatives have expressed concern about the order’s scope and effect. And while Senator McConnell has proposed the matter be left to the courts to decide, it is not wise – and should not be easy – for Congress to avoid responsibility here. At a minimum, it would be a serious strategic mistake for the many groups sprung up post-election to push back against the new administration not to focus some of their energies on demanding Congress act.

So far, McConnell, Ryan, and other congressional Republicans have had it both ways: They can tut-tut about executive overreach and incompetent implementation, while remaining uncommitted about the order’s overall intent. As much as possible, the public needs to pin them down. If a Muslim ban (or something like it) is a good thing, then Congress should authorize it. If not, it should establish specific boundaries on the President’s power.

The Broken Senate is Breaking the Courts

Merrick Garland is just the tip of a dangerous iceberg.


There have been a few cracks, but Mitch McConnell’s blockade of Merrick Garland’s Supreme Court nomination is holding. The quick threat of a primary against Kansas Senator Jerry Moran (when it looked like he might break ranks) not only got him back in line, but served as a warning to any other Republican who might consider taking the Senate’s constitutional duties seriously.

Ironically, the court blockade is one of the indirect effects of the Supreme Court’s dismantling of campaign finance laws, and shows the advantage that development gives extremists in the Republican Party. A few cycles ago, the threat of whipping up a statewide primary challenge from scratch against an otherwise popular incumbent in just a few months (the Kansas Senate primary is in early August) would have been laughable. And it still would be laughable if the far Left made a similar threat against a Democratic senator over some progressive issue. But everything changes when a handful of deep-pocketed donors can call up a potential challenger and say: “We’ve got the money, are you ready to go?”

Jennifer Bendery, Huffington Post‘s congressional reporter, points out that Garland is just the highly visible tip of a much deeper iceberg: The Senate has all but stopped processing judicial nominees up and down the federal court system.

For some broader perspective, consider that Republicans have only confirmed 16 judicial nominees since becoming the Senate majority in January 2015. At this same point in President George W. Bush’s eighth year, when Democrats controlled the Senate, 40 judicial nominees had been confirmed.

… The last time the Senate confirmed a judge was in mid-February, and that was only because McConnell postponed a package of judicial nominees from 2015 into the new year. There are 15 judicial nominees ready for a confirmation vote right now, but only one of those votes has been scheduled. Another 32 are waiting on the Judiciary Committee, which hasn’t held a hearing for a nominee since January. Federal courts, meanwhile, are at 79 vacancies and climbing.

That kind of behavior almost forces the Democrats to respond in kind if the political situation reverses. To do anything else — to let the Senate resume its constitutional duties as soon as a Republican enters the White House — would mean conceding that only Republican presidents are empowered to appoint judges. Such acquiescence would guarantee a conservative judiciary for the foreseeable future.

That exemplifies why it’s nearly impossible to be the Good Government Party once the other side decides to be the Bad Government Party. And so the deterioration I’ve been tracking in my Countdown to Augustus posts goes on.

Last fall, Bendery explored the effects of a broken judicial-appointment system: overloaded judges who burn out and cases that drag on forever. Courts prioritize criminal cases for good reason: A long delay risks either leaving a predator on the streets or wrecking an innocent defendant’s life by letting him rot in jail. But something has to give, as Chief Judge Morris England of the U.S. District Court for California’s Eastern District explains:

What happens is you have to keep pushing civil cases further out. They’ve already been waiting sometimes three to four years. I get concerned when cases are so old. Memories are fading; people are no longer around. It’s not serving anyone trying to get justice.

Take that a step further: As the federal court system continues to deteriorate, any right those courts enforce deteriorates as well. Little by little, we wind up living in a country where “Yeah it’s illegal, but what are you going to do about it?” is a viable strategy.

That, in turn, creates a temptation to flip the situation around: to get even with your own illegal act, and let the other side beg for justice from the broken courts. And so the back-and-forth of political hardball begets a similar back-and-forth of hardball in everyday life.

Where North Carolina’s New Law is Going

HB2 is just over a week old. But the 5-3 Supreme Court decision that will strike it down is already clear.


When North Carolina’s legislature came together for a one-day emergency session to pass HB2, a state law that struck down Charlotte’s LGBT anti-discrimination ordinance before it could take effect, a lot of us amateur legal buffs wondered: “Didn’t we do this already?”

For the most part we did, and it was all resolved 20 years ago in the Supreme Court case Romer v Evans. Then it was Colorado instead of North Carolina, and Denver, Boulder, and Aspen were playing the roles of Charlotte, Chapel Hill, and Durham. The cities had instituted anti-discrimination protection for gays and lesbians, so in 1992 Colorado’s voters passed Amendment 2, stating that nowhere in Colorado would “homosexual, lesbian or bisexual orientation, conduct, practices or relationships” entitle anybody to claim discrimination in court.

The Colorado Supreme Court struck the law down, holding that it made gays and lesbians into a class of people with diminished political rights: Other Coloradans could petition their local governments for protection against discrimination, but gays and lesbians could not. The state appealed — the “Romer” on the case name is then-Governor Roy Romer, a Democrat — and in 1996 the Supreme Court supported the conclusion of the state court, but with somewhat different logic:

[Amendment 2’s] sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class that it affects; it lacks a rational relationship to legitimate state interests.

Romer is really the first place where the Court said that you can’t pass laws to make gays’ lives harder just because you disapprove of them. It led to the whole series of decisions that culminated in last summer’s Obergefell decision legalizing same-sex marriage nationwide. (It was also the first of many gay-rights decision written by Justice Kennedy, who we’ll get to later.)

So is HB2 obviously unconstitutional, without the need to reinvolve the Supreme Court? Not exactly.

You see, HB2’s authors did something clever: Unlike Amendment 2, the law doesn’t actually mention the people it targets. HB2 is in two parts. The part that got all the publicity was about bathrooms: It doesn’t say anything about transgender people, it just says you can only use the bathroom that corresponds to the gender on your birth certificate.

The other part makes it impossible for a city to pass any kind of LGBT non-discrimination ordinance, but it does so without mentioning LGBT people. Ostensibly, this part of HB2 isn’t about sex or gender at all; it’s about creating a uniform business climate across the state, so that prospective employers have only one set of rules to deal with. North Carolina already had a Wage and Hour Act that uniformized various regulations about wages. HB2 amended it to declare that non-discrimination provisions must be uniform across the state too.

Of course, the only people affected by the change are LGBT folks, because those were the only local non-discrimination ordinances in North Carolina. But the law doesn’t single them out by name. It’s just, like, a coincidence or something.

Again, we’ve been here before (in the 1960s and 1970s) with race and gender discrimination. Slate‘s Mark Joseph Stern explains:

Under Arlington Heights v. Metropolitan, courts must attempt to glean whether a law with a disparate impact on minorities was motivated by discriminatory intent. To do so, courts examine several factors—all of which align chillingly with HB 2. For example, does the challenged law disproportionately affect one minority? (Yes.) Does the “historical background” reveal “a series of official actions taken for invidious purposes”? (Yes—the stated purpose of the law was to overturn Charlotte’s LGBT nondiscrimination ordinance.) Do the events leading up to the law depart from normal decision-making procedures? (Yes; the legislature rammed the law through in record time with minimal discussion.) Does the legislative history reveal governmental animus? (Absolutely: From the start, Republican legislators have vocally supported HB 2 as an effort to disadvantage LGBT people.)

But there’s a still a problem: In all those gay-rights decisions he wrote, Justice Kennedy dodged the question of whether laws concerning gays and lesbians require some form of heightened scrutiny, like laws affecting race and gender do. Laws that affect women or racial minorities may seem to be about something entirely neutral, but because governments have a long history of race and gender bias, courts can’t take that at face value; they have to consider the broader situation in the way Stern describes. Lower courts have sometimes decided that heightened scrutiny was called for — the Colorado Supreme Court did in Romer, for example — but Justice Kennedy has a frustrating way of reaching decisions without resolving the underlying legal issues (something I have complained about repeatedly).

So there is something to decide here: Should North Carolina’s legislature be taken at its apparent word, that this is just about a uniform business climate, unrelated to any animus towards the LGBT community? As Stern points out, that’s a really hard case to make, if the Court lets itself consider the broader context at all. But no particular precedent says it absolutely has to do that.

So this will reach the Supreme Court, and the votes there are already obvious: Roberts, Alito, and Thomas will want to favor HB2, just as they have been on the wrong side of all the gay rights cases. Breyer, Ginsberg, Sotomayor, and Kagan will be want to strike it down, since I believe they all already see sexual orientation as requiring heightened scrutiny. That leaves Kennedy, who will do what he always does: decide the case in favor of gay rights, without laying any principles that will keep the next case from coming back to him.

So that’s a 5-3 vote to strike HB2 down, a margin that will be unaffected by whether Justice Scalia is replaced in time to matter.

Tick, Tick, Tick … the Augustus Countdown Continues

If we can’t make our republican system of government work, eventually the people will clamor for a leader who can sweep it all away. Many of them already do.


In the 2013 post “Countdown to Augustus” I laid out a long-term problem that I come back to every year or so:

[R]epublics don’t work just by rules, the dos and don’t explicitly spelled out in their constitutions. They also need norms, things that are technically within the rules — or at least within the powers that the rules establish — but “just aren’t done” and arouse public anger when anyone gets close to doing them. But for that public anger, you can often get an advantage by skirting the norms. And when it looks like you might get away with it, the other side has a powerful motivation to cut some other corner to keep you in check.

… As Congress becomes increasingly dysfunctional, as it sets up more and more of these holding-the-country-hostage situations, presidents will feel more and more justified in cutting Congress out of the picture.

We know where that goes: Eventually the Great Man on Horseback appears and relieves us of the burden of Congress entirely.

The immediate motivation for that post was the debt-ceiling crisis of 2013, when Congress was threatening to blow up the global economy unless President Obama signed off on the repeal his signature achievement, ObamaCare. Various bizarre ways out were proposed, including minting a trillion-dollar coin to deposit with the Federal Reserve.

I had previously raised the declining-norms theme in “Escalating Bad Faith“, about the tit-for-tat violation of norms relating to presidential appointments and the filibuster, going back several administrations. And I returned to it in 2014 in “One-and-a-half Cheers for Executive Action” as Obama tried to circumvent the congressional logjam on immigration reform.

The historical model I keep invoking is the Roman Republic, which didn’t fall all at once when Julius Caesar crossed the Rubicon or his nephew Octavian became the Emperor Augustus, but had been on such a downward spiral of norm-busting dysfunction for so long (about a century) that it was actually a relief to many Romans when Augustus put the Republic out of its misery. In “Countdown” I pointed out the complexity of that downward trend:

About half of the erosion in Rome was done by the good guys, in order to seek justice for popular causes that the system had stymied.

So now we are experiencing a new escalation in norm-breaking: The President has nominated a well-qualified judge to fill a vacancy on the Supreme Court, and the Senate is simply ignoring him.

At various times in American history, individual senators of both parties have postured about the Senate’s prerogatives, usually in the abstract, and usually in an attempt to influence the president to choose a nominee more to their liking than the ones they suspected he had in mind. But in the long history of the American Republic, we have never been in this place before. The Senate has never simply ignored a nominee for the Supreme Court.

The gravity of this may not be apparent to most Americans. Day to day, the country is continuing just fine without a fully staffed Court. Justice Scalia died over a month ago, and his absence isn’t causing anything in particular to go wrong. In some ways it’s like operating a nuclear power plant with the emergency-response systems turned off: As long as there’s no emergency that needs a response, nobody notices.

But what happens if the 2016 election comes out like the 2000 election? What if the outcome hangs on some dispute that only the Supreme Court can resolve? As hard as it was on the country when the Court’s poorly reasoned 5-4 decision in Bush v Gore handed the presidency to the man who lost the popular vote, imagine where we would be if the Court had tied 4-4 and been unable to reach a decision?

Constitutional crises are rare in this country, but they happen, and only the Supreme Court can resolve them in a way that preserves our system of government. Legally, a tie at the Court means that the lower-court opinion stands, whatever it was. But in a true crisis, would a lower court have the prestige to make the other branches of government respect its decision?

Go back to the Watergate crisis, and the Court’s order that the Nixon administration turn over to Congress its tapes of Oval Office conversations. At the time, some advised Nixon to defy the Court and burn the tapes. What would have happened next is anybody’s guess, but the unanimity of the Court’s decision gave it additional moral force, and Nixon complied — even though the tapes led quickly and directly to his resignation. If that decision had split 4-4, along what were seen to be partisan lines, history might have played out differently. Nixon might have reasoned that he wasn’t defying a lower court, he was just breaking the tie.

Disputes between lower courts also happen, and if the Supreme Court can’t resolve them, we wind up with different laws applying in different jurisdictions. Imagine, for example, if the availability of ObamaCare or whether you could get married, depended not on which state you live in, but which federal appellate district.

What if appellate courts disagree about jurisdiction? If a government computer in Utah captures a phone conversation between Georgia and Wisconsin, that one case might lead three courts to rule simultaneously on whether the Fourth Amendment has been violated. Whose order should be followed?

Scenarios like that show why leaving a vacancy at the Court is playing with fire. Maybe we’ll get away with it this time. Maybe nothing that can’t be put off or papered over will happen between now and whenever the Senate starts processing nominations again — say, next year. (Or maybe something will happen, and some other branch of government will decide to seize whatever illegitimate power it thinks is necessary to keep the country running.)

But an optimistic reading of the situation only works if we ignore the larger trend. This is not an isolated incident, and we will not return to “normal” after it resolves. Once broken, a norm is never quite the same. The next violation is easier, inspires less public outrage, and usually goes farther. Jonathan Chait elaborates:

It turns out that what has held together American government is less the elaborate rules hammered out by the guys in the wigs in 1789 than a series of social norms that have begun to disintegrate. Senate filibusters were supposed to be rare, until they became routine. They weren’t supposed to be applied to judicial nominations, then they were. The Senate majority would never dream of changing the rules to limit the filibuster; the minority party would never plan to withhold all support from the president even before he took office; it would never threaten to default on the debt to extort concessions from the president. And then all of this happened.

More likely than a return to the prior status quo is that blockades on judicial appointments will become just another “normal” tactic. After all, the Constitution may assign the Senate the duty to “advise and consent” on nominations, but it sets no time limit. Founding-era commentary, like Federalist 78, may envision a Court that is above politics. (The whole point of a lifetime appointment is to make any political deal with a nominee unenforceable. Once a justice is in, that’s it; he or she is beyond reprisal and requires nothing further from any elected official.) It may take for granted that the Senate will consider nominees on their individual merits, rather than on which partisan bloc chooses them. But the Founders didn’t explicitly write any of that into the rules, so …

If Hillary Clinton wins in November and Republicans retain the Senate, they may feel shamed by their promises to let the voters decide the Court’s next nominee and give her a justice. Or maybe not — maybe some dastardly Clinton campaign tactic, or reports of voter fraud on Fox News, will make them rescind their promise. The Supreme Court could remain deadlocked at 4-4 for the remainder of her term, causing federal rulings to pile up and further fracturing the country into liberal and conservative zones with dramatically different constitutional interpretations.

Conversely, if a Republican wins the White House while Democrats retake the Senate, the new Senate majority leader may decide that, rather than let Republicans reap the benefit of their new tactic, he’ll just push it further. Chait describes what either course leads to:

A world in which Supreme Court justices are appointed only when one party has both the White House and the needed votes in Congress would look very different from anything in modern history. Vacancies would be commonplace and potentially last for years. When a party does break the stalemate, it might have the chance to fill two, three, four seats at once. The Court’s standing as a prize to be won in the polls would further batter its sagging reputation as the final word on American law. How could the Court’s nonpolitical image survive when its orientation swings back and forth so quickly?

… The Supreme Court is a strange, Oz-like construction. It has no army or democratic mandate. Its legitimacy resides in its aura of being something grander and more trustworthy than a smaller Senate whose members enjoy lifetime appointments. In the new world, where seating a justice is exactly like passing a law, whether the Court can continue to carry out this function is a question nobody can answer with any confidence.

Our awareness of our dissolving norms ought to be sharpened by the current presidential campaign. Donald Trump makes a lot more sense as a candidate when you realize that he’s not running for President, he’s running for Caesar. His fans and followers are looking for that Man on Horseback who will sweep away all the rusted-over formalities and just make things work.

The Washington Post provides the following graph, based on data from the World Values Survey. It’s disturbing enough that 28% of American college graduates think it might be good to have “a strong leader who doesn’t have to bother with congress and elections”, but among non-graduates it is actually a close question: Democracy still beats authoritarianism, but only 56%-44%.

Vox has several graphs like this one, showing that frustration with democracy is increasing:

The pundits, representing an educated class that still mostly thinks democracy is a good idea, are horrified whenever Trump breaks one of the norms of American political campaigns by endorsing violence, or insulting entire religions or ethnic groups, or talking about the size of his penis during a televised debate. Yet his popularity rises, because here is a man who won’t be bound. He refuses to be tied in knots by rules or traditions or archaic notions of courtesy and honesty and fair play. His willingness to break our taboos of public speech symbolizes his willingness to break our norms of government once he takes power — not one at a time, like Mitch McConnell, but all of them at once. And lots of people like that.

Some of the biggest applause lines in a Trump speech are when he imagines exercising powers that presidents don’t have (if Ford tries to move an auto plant to Mexico, he will impose punitive tariffs until they back down), or using American military power for naked aggression (if Mexico won’t pay for the wall he wants to build, he’ll attack them), or committing war crimes (if terrorists aren’t afraid of their own deaths, he’ll have to kill their families).

Establishment Republicans are currently wringing their hands about the prospect of Trump leading their party into the fall elections. They are searching party rules for norm-bending ways to deny him the nomination in spite of the primary voters. But long-term, the way to stop Trump and future prospective Caesars is simple: Make democracy work again.

It’s not rocket science: End the policy of blanket obstruction. Pass laws that have majority support rather than bottling them up in the House or filibustering them in the Senate. Seek out workable compromises that give each side something to take pride in, rather than promoting an ideal of purity that frames every actual piece of legislation as a betrayal. Stop trying to keep people you don’t like from voting, or gerrymandering congressional districts so that voting becomes irrelevant. Come up with some workable campaign-finance system that lets legislators pay attention to all their constituents, rather than just the deep-pocketed ones.

In short, don’t just follow the rules in the most literal way possible, grabbing every advantage they don’t explicitly forbid; govern in good faith, fulfilling to the best of your abilities the duties you have been entrusted with.

They could start by holding hearings on Judge Garland, as if he were a presidential nominee and one of the most widely respected judges in the country (which he is). By itself, that may not save the Republic, but it would be a welcome gesture of good faith.

The 2016 Republican primaries, in which none of the establishment candidates seemed to understand where the real threat was coming from until it was too late, have a lesson for politicians of both parties: The most important fight of our era is not the Republicans against the Democrats, the liberals against the conservatives, or even the collectivists against the individualists. The battle we have to win is the Catos and Ciceros against the Caesars.

If the American Republic is going to survive, its mechanisms have to work. If they don’t work — if the system stays as clogged as it has been these last few years, and each cycle of attack-and-reprisal gums things up worse — then eventually someone will sweep it all away. Maybe not Trump, maybe not this year, but someone, someday sooner than you might think possible. That would be a tragedy of historic proportions, but crowds would cheer as it happened.

Replacing Scalia (or not)

As I pointed out last week, the Constitution is pretty clear about what should happen now: President Obama should nominate a replacement and the Senate should either approve or disapprove of the nominee’s ability to handle the job. (Article II, Section 2 says “he shall nominate”. The shall indicates a duty, rather than may, which would offer an option.)

Retired Justice Sandra Day O’Connor (appointed by President Reagan) sees it that way. Asked whether the process should wait until we have a new president, she said: “I don’t agree. I think we need somebody there now to do the job, and let’s get on with it.”

When Alexander Hamilton defended the Constitution’s appointment process in Federalist #76, he expected the Senate to examine an individual nominee’s character and ability, but never considered the possibility that the Senate might engage in the kind of blanket obstruction Republicans are proposing.

But might not [the president’s] nomination be overruled? I grant it might, yet this could only be to make place for another nomination by himself. The person ultimately appointed must be the object of his preference, though perhaps not in the first degree. It is also not very probable that his nomination would often be overruled. The Senate could not be tempted, by the preference they might feel to another, to reject the one proposed; because they could not assure themselves, that the person they might wish would be brought forward by a second or by any subsequent nomination. They could not even be certain, that a future nomination would present a candidate in any degree more acceptable to them; and as their dissent might cast a kind of stigma upon the individual rejected, and might have the appearance of a reflection upon the judgment of the chief magistrate, it is not likely that their sanction would often be refused, where there were not special and strong reasons for the refusal.

But, as I have often pointed out before, republics don’t run just on their rules, but also on their norms and mores. So it’s legitimate to wonder whether there might be some long-standing gentlemen’s agreement or common courtesy that would prevent Obama from nominating Scalia’s replacement. The answer is pretty clearly no. Republicans have been claiming all sorts of unwritten rules to that effect, all of which resemble the rules of Calvinball.

It is true that there have not been a lot of election-year Supreme Court vacancies. (I assume justices see an election year as an inconvenient time to retire, though I don’t really know.) The closest recent example is the vacancy filled by Justice Kennedy: Justice Lewis Powell retired in June, 1987, and Kennedy was not confirmed until February, 1988 — President Reagan’s last year in office. (The delay was caused by the Senate’s refusal to confirm Robert Bork, and then by the withdrawal of Reagan’s second nominee.)

If you go further back, you get clearer parallels: Presidents Taft, Hoover, and Franklin Roosevelt nominated justices in election years and got them confirmed. Wilson got two justices confirmed in 1916. Eisenhower (1956) and Johnson (1968) failed to get their election-year picks confirmed but (according to Amy Howe of SCOTUSblog) “neither reflects a practice of leaving a seat open on the Supreme Court until after the election.” In Eisenhower’s case, the Senate was already adjourned for the fall campaign (so he made a recess appointment). Johnson’s pick was the target of a bipartisan filibuster, having to do with the nominee’s ethical issues.

No one has come up with an example that supports the Republican position: a Supreme Court seat that was left open for a year to allow the next president to fill it. That would be unprecedented in the last 150 years.

There is also no unwritten rule saying that a new justice should fill the same ideological role as the justice s/he replaces. Arch-conservative Clarence Thomas, for example, replaced one of the Court’s most liberal judges, Thurgood Marshall.

It’s worth pointing out that even if any of these unwritten rules really existed, Senate Republicans are in a poor position to claim them. Throughout the Obama administration, they have blasted through the previous norms and mores of Senate behavior: making the filibuster routine; blocking nominees not for individual reasons, but in order to screw up the organizations they were supposed to head; brinksmanship with the debt ceiling; and many other examples. They have consistently refused to be bound by any unwritten rules of courtesy, so why should they get the advantage of one now?


There have been several attempts to claim hypocrisy on the part of Democrats who want to follow the constitutional process. One frequently cited example is a 2007 quote from Chuck Schumer to the effect that the Democratic Senate “should not confirm any Bush nominee to the Supreme Court except in extraordinary circumstances.”

Two things stand out about that: First, no more vacancies came up during Bush’s term, so we don’t know to what extent Schumer (who was just an ordinary senator at that time, and spoke only for himself) was just posturing in front of a liberal audience. (If today’s Republicans posture about blocking all nominees, but then go ahead and do their constitutional duty anyway, that would be fine.) Second, the quote is plucked out of its context, as Josh Marshall explains (with video of Schumer’s remarks):

What Schumer actually said was that Senate Democrats had been hoodwinked by President Bush’s first two Supreme Court picks – Roberts and Alito. They’d accepted assurances that they were mainstream conservative judges who would operate within the precedents and decisions of the Rehnquist Court but hadn’t. (Certainly, the experience since 2007 has more than ratified this perception.) Schumer said Democrats should try to block any future Bush nominees unless they could prove that they were ‘in the mainstream’ and would abide by precedent. …

Schumer quite explicitly never said that the Bush shouldn’t get any more nominations. He also didn’t say that any nominee should be rejected. He said they should insist on proof based on judicial history, rather than just promises that they were mainstream conservatives rather than conservative activists, which both have proven to be. But again, set all this aside. He clearly spoke of holding hearings and being willing to confirm Bush nominees if they met reasonable criteria.

Another attempt is to cite a 1960 sense-of-the-Senate resolution which the conservative American Thinker blog characterizes as “against election-year Supreme Court appointments”.

Except that’s not what it says. The resolution opposed recess appointments to the Supreme Court, which put a justice on the Court temporarily without Senate approval, not election-year appointments. Since Obama is not making a recess appointment — Republicans having fought tooth-and-nail to limit Obama’s recess-appointment power — the 1960 resolution has no connection to the current situation.


A tweet from Ken Wissonker puts a different slant on the wait-for-the-next-president idea:

As a friend put it: “Apparently, the GOP thinks that Black Presidents only get 3/5ths a term.”

The attempt to imply that Obama’s nominee will somehow be illegitimate is part of the larger effort to de-legitimize Obama’s entire presidency. And it’s hard to escape the conclusion that race has played a role in this project.

From the beginning, his opponents have never granted Obama the respect due a president of the United States. Whether it’s shouting “You lie!” during the State of the Union, or encouraging members of military to refuse orders, or spreading baseless rumors about his birth or religion, or complaining whenever he does things all presidents do, or expressing frustration that impeachment requires evidence, or warning foreign leaders not to make agreements with him — the consistent message has been that Barack Obama is not a legitimate president of the United States.

So we elect our first black president, and he’s treated with less respect than all previous presidents. Who could have guessed?

Is Kim Davis a Martyr?

Thursday, the story of the Kentucky county clerk who refused to issue marriage licenses (now that same-sex couples can marry) reached its inevitable conclusion. Having been turned away by the Supreme Court, Davis was out of legal options for delaying the moment of truth: She had to either obey a court order to issue marriage licenses, including licenses to same-sex couples, or be in contempt of court.

She chose contempt and has been jailed, while her office has begun issuing licenses in her absence. Federal Judge David Bunning had the lesser option of fining her, but concluded (correctly, I think) that fines would simply delay the resolution of the case: Davis would not pay them and would continue showing contempt for the court’s order, forcing Bunning to jail her at some later date.

Response. Presidential candidates courting the religious-right vote immediately began characterizing Davis as a martyr for her beliefs. Ted Cruz issued a statement beginning with this line:

Today, judicial lawlessness crossed into judicial tyranny. Today, for the first time ever, the government arrested a Christian woman for living according to her faith.

Mike Huckabee compared Davis to Abraham Lincoln, who “disregarded the Dred Scott 1857 decision that said black people aren’t fully human.” [1] He also tweeted that “Kim Davis in federal custody removes all doubts about the criminalization of Christianity in this country”, and is planning a rally tomorrow outside the jail where she’s being held. (Some other Republican candidates have been less supportive. Lindsey Graham has been the most blunt: “As a public official, comply with the law or resign.”)

Other voices on the right portray Davis in larger-than-life terms. RedState.com founder Erick Erickson sees her case as a harbinger of civil war. Conservative Review‘s Daniel Horowitz casts Davis as this era’s Rosa Parks, and Steve Deace wants her to run for president. (Critics compare her to a different character in the civil rights movement: George Wallace standing in the doorway of the University of Alabama, unsuccessfully trying to block integration.)

Martyrdom. The Christian tradition is rich with martyr stories, going all the way back to the stoning of Stephen and the imprisonment of Paul in the New Testament. In the Lutheran school I attended through eighth grade, we were sometimes asked to imagine facing a choice between denying our faith and punishment or death. (I have heard similar stories from Catholics.) Like Muslim suicide bombers, we were promised glories in Heaven that would more than compensate for any earthly suffering.

But is that what’s happening here? Does Kim Davis deserve the enthusiastic admiration of conservative Christians, and even the grudging respect of those who disagree with the stand she’s taking? Or is she undermining the rule of law and usurping the powers of her office to implement her personal religious agenda? [2]

What the judge said. Before deciding that question, it’s worthwhile to examine the court order she’s defying. In that order, Judge Bunning considers Davis’ arguments and explains why he is rejecting them.

Davis argues that by signing a license for a same-sex marriage, she would be expressing approval of such marriages, which her religion denies. Bunning counters:

The form does not require the county clerk to condone or endorse same-sex marriage on religious or moral grounds. It simply asks the county clerk to certify that the information provided is accurate and that the couple is qualified to marry under Kentucky law. Davis’ religious convictions have no bearing on this purely legal inquiry.

(Let me amplify that a little: Marriage-under-the-law and marriage-in-the-eyes-of-God have always been two different concepts. No one is asking Davis to affirm that same-sex marriages are valid in the eyes of God.)

A footnote spells out what the legal qualifications are:

A couple is “legally qualified” to marry if both individuals are over the age of eighteen, mentally competent, unrelated to each other and currently unmarried.

Davis also protests on free-speech grounds, claiming that an order that she sign the license form is compelled speech banned by the First Amendment. Bunning disagrees:

Because her speech (in the form of her refusal to issue marriage licenses) is a product of her official duties, it likely is not entitled to First Amendment protection.

In support of this view, he quotes a precedent from 1971:

When a citizen enters government service, the citizen by necessity must accept certain limitations on his or her freedom.

And Bunning does not see a violation of the First Amendment’s free-exercise-of-religion guarantee:

Davis remains free to practice her Apostolic Christian beliefs. She may continue to attend church twice a week, participate in Bible Study and minister to female inmates at the Rowan County Jail. She is even free to believe that marriage is a union between one man and one woman, as many Americans do. However, her religious convictions cannot excuse her from performing the duties that she took an oath to perform as Rowan County Clerk.

Bunning does not mention this quote, but the principle goes back to an 1892 decision in which Oliver Wendell Holmes ruled against a policeman fired for something he said:

The petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman.

Davis is perfectly free to practice her religion in her personal life, but when she assumes the role of a public official, she has to act according to law. [3]

Cashing in? Hypocrisy? It’s a safe bet that St. Paul’s imprisonment wasn’t part of his grand plan to become a celebrity and get rich. But Dan Savage has been making this prediction since Davis first hit the headlines:

No one is stating the obvious: this isn’t about Kim Davis standing up for her supposed principles—proof in a moment—it’s about Kim Davis cashing in. There’s a big pile of sweet, sweet bigot money out there waiting for her. If the owners of a pizza parlor could raise a million dollars just by threatening not to cater the gay wedding no one asked them to cater… just imagine how much of that sweet, sweet bigot money Kim Davis is going to rake in. I’m sure Kim Davis is already imagining it.

In an interview on MSNBC, Savage spelled it out:

She will have written for her a ghost-written book, she will go on the lecture circuit, and she’ll never have to do an honest day’s work again.

Savage’s “proof in a moment” is a reference to Davis’ own checkered marital history: She’s been married four times and divorced three times, a practice which (unlike homosexuality) is explicitly condemned by Jesus in the Gospels.

Ad hoc purity. I have a more general complaint than hypocrisy, one that applies not just to government officials like Davis, but also to the baker [4] and florist who have been claiming persecution when they are not allowed to discriminate against same-sex couples: Their position relies on two principles, and one of them they just made up for this purpose.

The first principle is the one right-wing Christians always want to focus on: Homosexuality is sinful. Whether or not the rest of us agree, it’s incontestable that they believe it and have for a long, long time.

But since no one is asking them to commit homosexual acts, that principle by itself doesn’t create an issue. Their position requires a second principle: Christians should live according to a standard of purity that doesn’t allow them to involve themselves in other people’s sins.

Kim Davis has to imagine a pretty broad purity zone around herself, if verifying that two men are “over the age of eighteen, mentally competent, unrelated to each other and currently unmarried” involves her in the sin of their homosexuality. And the bakers who won’t sell a cake to a same-sex wedding reception — giving them no connection whatsoever to the actual marriage ceremony — must have an even broader purity zone.

Religious purity.

Now, there are religious people who try to live their lives according to extremely high standards of purity (like the Jain monks who wear masks so as not to kill any tiny insects they might otherwise breath in). But that does not include any of the right-wing Christians who are claiming persecution. Their Christian practice did not require an expanded purity zone until now, and even now it only applies to situations that involve gays.

For example, apparently the clerks who gave Kim Davis her marriage licenses didn’t balk at the fact that (according to Jesus) some of those marriages were adulterous. I’ll bet she didn’t have any trouble renting a hall or buying flowers or cakes. Even the most conservative Christians simply didn’t care about this kind of purity before same-sex marriage became legal, and still don’t care about it in any other context.

Here’s what that says to me: This isn’t about religion, not when it depends on a “sincerely held belief” that was invented solely for this purpose. So either it’s about personal animus against gays, or it’s about protesting the politics of same-sex marriage. Neither is the kind of moral or constitutional issue that Kim Davis’ defenders want to make it.


[1] I’m not sure which act of Lincoln’s Huckabee is referring to, and I suspect he doesn’t know either. Dred Scott laid out some general principles about slavery before Lincoln was elected, but what specifically did the Supreme Court order Lincoln to do? How did he defy that order?


[2] As satirized in this image and this story from The Onion. I suspect conservative Christians are picturing a world in which only conservative Christian public officials have the right to bend their duties around their religion. But a friend suggested this example, which corresponds pretty well to the Davis case: What if a Jewish meat inspector decides that his religious convictions require him to reject all pork? I’ve also seen this example: What if an official refuses to issue hunting and fishing licenses, because he takes “Thou shalt not kill” literally?

Some of the Kim Davis satire doesn’t have a political point, it’s just funny. For more humor, check out the hijacked #FreeKimDavis tag on Twitter.

[3] A common complaint by conservative pundits is that liberals are fine with liberal officials ignoring laws. President Obama’s recent executive orders on immigration are a frequently cited example. But there are some significant differences between the two cases, as becomes clear when you compare the justifications.

Obama’s action is justified in a memo from the Justice Department’s Office of Legal Counsel (which I summarized at the time). Unlike Davis, the OLC memo never appeals to an authority higher than the law.

Instead, the memo outlines the executive branch’s strategy for handling the impossible situation Congress has created: The law would deport 11.3 million undocumented immigrants, but Congress has provided funding for dealing with only a tiny fraction of that number. Consequently, the administration must prioritize whom to deport.

When a court disagreed with the administration’s reasoning and issued an injunction against parts of the order, the administration stopped implementing it — except for one mix-up, which is being rectified without the judge needing to fine or jail anyone for contempt.

[4] As Dan Savage might have predicted, the bakers have made out like bandits. In the United States, being persecuted as a Christian is extremely profitable.

Two Cheers for Justice Kennedy

By all means, celebrate. But, looking to future gay-rights cases, Justice Kennedy gave us more rhetoric than precedent.


Friday, the Supreme Court ended the decades-long legal debate on marriage equality, making same-sex marriage legal for the entire nation in Obergefell v Hodges. Across the country, supporters of gay rights were jubilant as they read to each other delicious paragraphs out of Justice Kennedy’s majority opinion. But I have a complaint: Justice Kennedy got the right result for the wrong reasons, and that will eventually cost us.

Not in other marriage cases — that’s over, just like everybody says. But Kennedy’s soaring rhetoric about the dignity of gay relationships wasn’t supported by a sound legal framework that we can use in, say, employment equality cases.

The DOMA hangover. As regular Sift readers know, I have mixed feelings about Justice Kennedy, particularly on the subject of gay rights. He tends to rule the way I want, and he’s often the swing vote that puts my position over the top. But being the swing vote, he usually ends up writing the majority opinion, and he writes it badly. That’s what happened when the Court threw out the Defense of Marriage Act (DOMA) two years ago, which I covered (along with Chief Justice Roberts’ hamstringing of the Voting Rights Act) in an article I demurely called “This Court Sucks“. And it happened again Friday.

The reason Obergefell came to the Court in the first place was that lower courts could not follow Kennedy’s mushy reasoning in the DOMA case. The Supreme Court is supposed to do more than just decide the current case, it’s supposed provide interpretive frameworks for lower courts to apply, so that future cases can be decided without involving the Supremes again. But when Judge Kean was throwing out Oklahoma’s ban on same-sex marriage, for example, he wrote that he had “gleaned” — not quoted, gleaned — two principles from Kennedy’s DOMA opinion. Other courts gleaned other principles and disagreed, so the highest court had to sort it out.

This time, Kennedy has made marriage equality the law of the land, but he’s done it with another piece of mushy reasoning that is a poor climax to the distinguished series of lower-court decisions supporting same-sex marriage, going all the way back to the 2003 Goodridge decision in Massachusetts. Instead of following the compelling logic laid out by one lower court after another, Kennedy’s opinion looks like exactly what critics of marriage equality say it is: a judge redefining marriage according to his own values. His ruling is full of beautiful tributes to the dignity of same-sex couples, but short on the kind of step-by-step legal thinking you can find in the lower-court rulings, which I summarized last month.

Due process isn’t enough. Every pro-marriage-equality judge I know of, other than Kennedy, has centered the argument on the 14th Amendment‘s guarantee of “the equal protection of the laws”. As I summarized:

In practice, that phrase has been interpreted to mean that if the government treats some people differently than others, it has to have a good reason. The more significant the discrimination, the weightier the reason needs to be.

That’s why laws that provide a marriage option to opposite-sex couples but deny it to same-sex couples are in trouble: because it’s increasingly hard to say what legitimate reason the government might have for that discrimination.

… So the claim that gays and lesbians want to “redefine marriage” has it exactly backwards. During the last century-and-a-half, marriage has already been redefined. And in marriage as it exists today — rather than during the Revolution or the Civil War — what’s our justification for refusing its advantages to same-sex couples?

Instead, Kennedy focuses on the 14th Amendment’s due-process clause, and finds a fundamental right to marry in the word liberty. His rhetoric is inspiring if you already agree with him, but if you don’t, his reasoning isn’t compelling. The dissents by Roberts, Thomas, Scalia, and Alito eviscerate his argument, and rightly so.

Kennedy’s biggest problem is that the Constitution doesn’t require governments, either federal or state, to recognize marriage at all. (If Oregon wanted to become “the free love state” and stop performing marriages entirely, that would be up to Oregonians.) Liberty traditionally means being left alone by the government, not that the government must help you in some way. So Roberts makes an argument that appears in some form in all the dissents:

Our cases have consistently refused to allow litigants to convert the shield provided by constitutional liberties into a sword to demand positive entitlements from the State.

The question Kennedy should have raised is: Once the State has defined the “positive entitlement” of marriage for some people, what’s its justification for denying those benefits to others? But that’s an equal-protection issue, not a liberty issue.

In short: the ruling came out the right way, but the people who still want to hold out against marriage equality feel vindicated in their view that the Court has usurped the power of the legislative branch by “redefining marriage”. It didn’t have to be like this. Why, oh why, couldn’t Justice Ginsburg have written this ruling?

Why it’s important. The lower courts nearly all used the equal-protection framework: Define a level of scrutiny appropriate to laws that discriminate against gays, and then examine the government’s reasons for discriminating under that level of scrutiny. One of the issues to decide, if you go that way, is whether gays and lesbians are a class that has traditionally faced discrimination, and so how much benefit of the doubt a legislature or electorate should get as to its motives.

Racial discrimination, for example, faces the highest level of scrutiny. As a matter of judicial precedent, laws that discriminate against traditionally disadvantaged racial groups are inherently suspect. Similarly, laws that discriminate against women are inherently suspect. It’s possible that some particular race- or gender-discriminating law can be justified, but a court will not give the government any benefit of the doubt.

The traditional discrimination against gays and lesbians certainly would justify giving laws against them some heightened level of scrutiny, but the Supreme Court has never done so. Kennedy doesn’t do so either.

Pro-marriage-equality judges who don’t invoke heightened scrutiny are forced to give the legislative branch the benefit of the doubt. And so they end up having to argue that same-sex marriage bans are completely irrational. That argument has been made, and was sitting there for Kennedy to endorse. He didn’t.

Going either way would have established a precedent for fighting other anti-gay discrimination: Either anti-gay discrimination would face heightened scrutiny in the future, or there would be a precedent for saying that certain kinds of anti-gay discrimination are irrational.

Instead, Justice Kennedy gave us just this result, justified by a lot of effusive rhetoric that has no further legal consequences.

The “threat to American democracy”. All four dissents lamented a judicial usurpation of powers properly belonging to the democratic branches — which is in fact a fair criticism of the argument Kennedy made. The place for flowery rhetoric is in the legislature or on the campaign trail. But it wouldn’t have been a fair criticism of the equal-protection argument Kennedy avoided.

Dahlia Lithwick raised the right question:

And all I could keep thinking was, “Where was all this five unelected judges chatter when you all handed down Citizens United? Or Shelby County? Why does this rhetoric about five elitist out-of-touch patrician fortune-cookie writers never stick when you’re in the five?”

The most-quoted Roberts line was:

Indeed, however heartened the proponents of same-sex marriage might be on this day, it is worth acknowledging what they have lost, and lost forever: the opportunity to win the true acceptance that comes from persuading their fellow citizens of the justice of their cause.

If you’re a straight person very distant from the gay community, this might sound convincing. But if you imagine yourself in the place of a same-sex couple, it isn’t convincing at all. Would you rather have widespread social approval ten years from now, or the equal protection of the laws today? The answer is pretty obvious.

The comparison to interracial marriage is apt. XKCD draws the chart:

Our fellow citizens are being persuaded of the justice of marriage equality — not, for the most part, by referendum campaigns, but by living in society with same-sex couples. That process will continue apace.

In these the-sky-will-fall-if-we-allow-this situations, most people have to see something in action before they realize the panic-mongers are conning them. As I predicted back in 2003:

Personally, I expect the same-sex marriage issue to follow the same course as interracial marriage. After a few years of Chicken-Little panic, the vast majority of Americans will recognize that the sky has not fallen, and that the new rights of homosexuals have come at the expense of no one.

Today, no one cares how interracial couples got the right to marry. Most young people have trouble believing it was ever an issue. (Have you ever tried to explain to a teen-ager why his friend’s parents’ marriage would have been illegal 50 years ago? I have.) So it will be for same-sex marriage.

Turning the Theocracy Against Itself

What happens when atheists claim the new kind of “religious freedom”?


Ever since the Tea Party sweep of 2010, conservative Christians have been on offense in state legislatures, pushing a variety of laws that distort religious freedom — a fine principle that goes back to the foundation of our country — into something the Founders would not recognize at all: the power (not freedom) to shape society so that it doesn’t rub Christians the wrong way.

The hole in this “religious freedom” rhetoric is that in practice only Christians (and only certain kinds of them) can wield such power. The people who push these laws are shocked whenever someone wants to extend the same kind of consideration to, say, Muslims or atheists. (Muslims, after all, can’t even take for granted the original meaning of religious freedom, which included the ability to build a house of worship.) Justice Alito’s majority opinion in the Hobby Lobby case more-or-less just laughed off the idea that employers with less mainstream religious views — Christian Scientists, say, who reject virtually all modern medicine — might claim the right to control their employees’ health insurance too.

In recent months progressives have been playing whack-a-mole with anti-gay “religious freedom” laws in various states, threatening boycotts and mostly succeeding in avoiding the worst.

But the way the new “religious freedom” will ultimately be brought down is to force courts to consider its laws in the light of the 14th Amendment’s guarantee of “equal protection under the law”. If “religious freedom” laws end up giving atheists and Muslims the same consideration Christians are claiming, Christians will repeal those laws themselves.

In other words, non-Christians need to insist — in court — that society shouldn’t rub them the wrong way either. There will often be an aspect of the ridiculous in these cases, like the statue Satanists want to install on the grounds of the Oklahoma statehouse, now that religious statues are allowed.

A very interesting legal argument is being put forward by atheist Michael Newdow, who is famous for taking the case against the “under God” part of the Pledge of Allegiance to the Supreme Court, which denied his standing to sue. This time Newdow is targeting the “in God we trust” motto on the currency. (Like “under God” the motto does not go back to the Founders, who would have been horrified. It appeared on some bills during the Civil War, but wasn’t established as the national motto until 1956.)

Newdow has failed to banish “in God we trust” before, but this time he’s basing his argument not just on the Establishment Clause of the First Amendment, but on Justice Alito’s interpretation of the Religious Freedom Restoration Act.

The RFRA says:

Government may burden a person’s exercise of religion only if it demonstrates that application of the burden to the person — (1) furthers a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.

The Hobby Lobby decision put forward a very expansive notion of what it means to “burden a person’s exercise of religion”. It used to just mean things like forcing Jews to work on Saturday or lose their jobs. But the Hobby Lobby decision extended it to forcing a corporation to fund health insurance that its employees might choose to use in ways that the offend the corporate owners.

Newdow argues that under this expansive interpretation, the government burdens atheists’ exercise of religion when it forces them to choose between

  • carrying around and distributing pieces of paper saying they trust in God,
  • forgoing the convenience of using the public currency.

And since putting “In God we trust” on the currency accomplishes no useful purpose whatsoever, this burden does not further any compelling governmental interest.

In case anybody out there wants to volunteer, Newdow is seeking plaintiffs from legal jurisdictions where no existing ruling supports “In God we trust”, especially Alabama, Florida, Georgia, Maine, Massachusetts, New Hampshire, Puerto Rico, and Rhode Island.

The time commitment will be minimal (as you help write the prose relevant to your particular circumstances) and there will be no obligation to provide any financial contribution … What we need mostly are families with minor children since the Supreme Court has indicated that it is more likely to uphold constitutional (and, presumably, statutory) principles when children are involved. Please be advised that the identities of any families with children will be kept “under seal” in order to protect the children from any harms.

I don’t have children, and my published opinions on God are sufficiently ambiguous that I’d make a lousy plaintiff anyway. But I’m sure there are Sift readers out there who are just perfect for the job. One of my friends was a plaintiff in one of the important religious-freedom cases of the 1960s (when religious freedom still had its original meaning). His family’s experience was more difficult than what Newdow pictures (because their name was public) but half a century later, I think he still looks back on it with pride.