Of Oaths, Honor, and small-r republican Virtue Mark Tushnet Earlier this evening I tweeted that, though it wasn't the most important question now, one could ask whether an honorable person would accept a nomination to the Supreme Court at this point (indeed, on reflection I wonder whether an honorable person would accept any nomination by President Trump at this point). The "at this point" is of course crucial; early in the Trump presidency there was a spate of blogging and the like on the question of whether an honorable person could then accept an appointment, and my sense of the discussion (among those who thought there was a genuine question -- not everyone did, of course) was that, though it might be a close question, the answer was, Yes. What I found striking in the responses to my tweet was the following reaction: Invoking the very idea of honor was a mistake. One subset here was that no one who Trump would nominate could possibly be an honorable person (so of course whoever he nominated would accept). I don't think that's true of everyone on the now rather long list he's offered us (though I'll avoid the risk that invidious inferences would be drawn by refraining from naming some who i believe to be honorable [ex ante -- my views would certainly change if one of them were indeed to accept a nomination]). More interesting were the reactions of puzzlement that I would bring the concept of honor into these discussions. I think that's because some people simply don't think that we have available to us such a concept today, at least with respect to public service. So, for example, we almost never see resignations over matters of principle (a few well-known ones come to mind in administrations from Carter to the present, but fewer than there "should" have been). If so, that seems to me to have some bearing on recent discussions of the implications of taking an oath to uphold the Constitution. I find the argument that the oath requirement entails originalism quite bizarre, but not so with the argument that taking an oath is a serious business that signals a certain kind of commitment to acting for the public good (not that the mere taking of the oath can do so, because cynics or other people with their fingers crossed can take the oath and we observers would be none the wiser). Having written the preceding paragraph, I now note its oddity. The unavailability of a notion of honor, if it is unavailable, tells us a lot about the possibility of small-r republicanism in today's United States, so focusing on the oath is pretty narow. Small-r republicanism is all about cultivating citizens (I know, I know...) who approach their public roles as citizens with public mindedness ("civic virtue," on one understanding). We all can tell stories about why civic virtue with its attendant notion of honor has declined (if it has). For me, there are several interesting question. (1) Do we have a widely available notion of honor in connection with public life? (2) If not, why not? (3) If so, can/should anything be done to rebuild it? (4) If so -- and the answer to #2 might tell us that the task is impossible -- what can we do? In particular, are there institutions on offer that could help? And -- to do the mandatory self-promotion -- that's dealt with in the concluding chapter of a forthcoming book with Bojan Bugaric, "Power to the People: Constitutionalism in the Age of Populism" (Oxford University Press, late 2021).



The Deep Tension between Divine and Popular Sovereignty in American Constitutionalism Sandy Levinson I have just published on the Canopy Forum on Law and Religion, at the. Emory Law School, an essay "Divine Sovereignty, Popular Sovereignty, and the Dilemma of American Constitutionalism." It is especially appropriate to bring this up on the eve of Rosh Hashanah, the Jewish New Year, which emphasizes not only the general theme of divine sovereignty, but also, more specifically, the presumptive "duty" of Abraham to obey the absolutely indefensible command that he sacrifice his son Isaac, after earlier, Abraham had, also indefensibly, banished his concubine Hagar and her son, Ishmael, because his wife Sarah was jealous. The central point of the essay is that contemporary American constitutionalism is riven by the problem of "dual sovereignty," not between the national government and states, a faux issue, theoretically, because it can be handled by reference to "popular sovereignty," but, rather, the tension between vox populi and claims to be able to hear the divine voice and be guided accordingly. I see no way out of this dilemma other than what Levitsky and Ziblatt call "forbearance," and I see precious little of that right now in our society, as the contending sides wish to stand on their respective legal "rights" or "powers." This is obviously linked, in its own way, to Andy Koppelman's valiant attempt to seek peace with regard to wedding cakes and much else.

On Violence and Politics Guest Blogger For the Symposium on Jack M. Balkin, The Cycles of Constitutional Time (Oxford University Press, 2020). Khiara M. Bridges Jack Balkin’s The Cycles of Constitutional Time is stunningly expansive and wholly wonderful. My analysis focuses on just a sliver of the massive theoretical undertaking that Balkin accomplishes in the book. Here, I will train my focus on Balkin’s understanding of “constitutional crisis.” Balkin argues that although the past four years have been equal parts surreal, chaotic, and maddening, they have never laid claim to a constitutional crisis. According to Balkin, we did not enter a constitutional crisis when the Trump administration ineptly rolled out its travel ban in early 2017 and created impromptu detention camps in airports across the nation. Neither did we enter a constitutional crisis in mid-2017 when Trump fired the director of the FBI, James Comey, who appeared to be competently investigating claims that Trump had colluded with Russia to secure an election victory. Balkin contends that none of the numerous episodes in the past four years that have convinced scores of reasonable people that this country is on its last legs have been a constitutional crisis. Balkin’s conclusion, of course, follows directly from his definition of constitutional crisis. Read more »

Finding a way out of constitutional rot Guest Blogger For the Symposium on Jack M. Balkin, The Cycles of Constitutional Time (Oxford University Press, 2020). Julie C. Suk Jack Balkin’s Cycles of Constitutional Time is the bearer of bad news: we are living through a period of severe constitutional rot, characterized by peak polarization and conservative dominance. The federal judiciary is deepening the rot, instead of providing an antidote. Balkin’s account of constitutional history, particularly the dynamics between presidential regimes and the federal judiciary, leads him to cast polarization and constitutional rot as stages of a cycle that, in the past, produced renewal and democratic innovation. Balkin thus concludes that a path out of this constitutional rot, by way of political mobilization and reform movements, is on the horizon. But the story of constitutional rot in this incisive and engaging book leaves me less confident than the author that the “malaise is only temporary” (3) and soon to be surmounted. In what follows, I will explain why, and further suggest that the Constitution itself contributed to what Balkin calls constitutional rot over time, making it doubtful as to whether a new constitutional order can emerge without a more thorough redesign of our constitutional institutions. Read more »

Cock-eyed Optimist Meets Chicken Little: Jack Balkin on the American Future Sandy Levinson For the Symposium on Jack M. Balkin, The Cycles of Constitutional Time (Oxford University Press, 2020).

Given that we are close friends and the co-authors of some twenty articles and a book, Democracy and Dysfunction, it is not surprising that I think very highly, and agree with much of, Jack Balkin’s new book The Cycles of Constitutional Time. Perhaps it is relevant that I read it in two sittings; it is a real page-turner, written with brio as Jack presents a remarkably comprehensive overview of what he discerns as various cycles in American politics (importantly including the Supreme Court and the development of constitutional doctrine) from literally the beginning of the new national government in 1789 to the present. It is a book to be savored, to learn from, and, inevitably, to argue with. For me, the central question is whether Jack ultimately has a tragic or a comic view of our constitutional saga. Will there be bodies strewn all over the stage at the end of the play, or will there be whatever the modern equivalent of a “constitutional marriage” with smiles all around and stories as to how the now-happy country surmounted a variety of challenges and travails to achieve their happy ending? Jack, I believe, has an ultimately comedic view. He forthrightly states, both at the beginning of the book and then again at the end, that for all of the justified depression we might feel at the present moment about the health of our constitutional order—as I, for example, have posted suggestions that the preferable alternative to the incipient civil war is peaceful dissolution of the United States—it is ultimately only the darkness before a brighter dawn. It might take quite a while for us to dig our way out of the multiple problems facing us today, including what I regard his most important analytical contribution, the notion of “constitutional rot” (about which more anon), but do not lose hope. Thus the concluding words of the book: The problems of American democracy will not be cured overnight, or even in a decade. Constitutional rot is a stubborn condition; emerging from it will be a painful process. The good news is that the cycles of constitutional time are slowly turning. Politics is re-forming. The elements of renewal are available to us, if we have the courage to use them. I am less optimistic. Within our partnership, which has been central to my intellectual life for at least three decades, I suppose I have become Chicken Little to his sometimes cockeyed optimist. So my contribution to this symposium, beyond urging everyone to read and grapple with a really interesting, fully accessible, meditation on the past and current state of American politics, is to cast some doubt on his relative optimism. Given his time horizon, he is not really trying to reassure me that things will necessarily get better in my lifetime, as I am completing my eighth decade of life, but, rather, that my children, probably, and, most certainly, my grandchildren, may have reason to look forward to sunnier futures (defined, among other ways, by the return to more-or-less hegemonic power, for at least a while, of the Democratic Party). For obvious reasons, I hope that I am wrong and Jack is right. However, I am not convinced, even if, as seems probable, Joe Biden becomes #46 in our line of presidents. Will he lead the “transformation” that the United States desperately needs? Will he, more particularly, take the lead in suggesting that we need a long-overdue national conversation about constitutional reform if we are serious about curing our “rot”? The answer to both questions, I am afraid, is no. Read more »

Free speech, Meriwether, and Menkel-Meadow Andrew Koppelman

Two cases of administrative punishment for the use of language in the classroom have been in the news. One involves a professor’s insistence on treating a transgender student worse than others. The other involves a professor who spoke the N word in a law school class about hate speech. The free speech claim is silly in the first of these cases, quite strong in the second.

Prof. Nicholas Meriwether of Shawnee State University, Ohio, refused to address a transgender student by the student’s preferred pronouns. Instead, while addressing all other students as “Mr.” or “Ms.,” he referred to the student by last name only. When disciplined for discrimination, he sued the school, claiming that his free speech rights were violated. He lost and is appealing the decision. In an essay at The Hill, I explained why his legal claim is meritless.

He has now published a response to me, arguing that he is being wrongly forced to say what he does not believe. He does not regard this student as female and should not be required to address the student with female pronouns. Teachers “should not be compelled to say and teach things they don’t believe or risk being fired or disciplined. And everyone should be free to stand thoughtfully for the truth.”

that. Since faculties tend to be disproportionately on the political left, it is particularly urgent to protect the speech of those with conservative views. Those who oppose gender change should be permitted to say so. (See Deirdre McCloskey’s smart I agree with. Since faculties tend to be disproportionately on the political left, it is particularly urgent to protect the speech of those with conservative views. Those who oppose gender change should be permitted to say so. (See Deirdre McCloskey’s smart defense of J.K. Rowling’s free speech rights.) It is also urgent, and not only within the university, to lower the temperature of the conflict between gay rights and religious liberty

Meriwether however fails to mention a crucial fact. As I reported in my earlier piece, his administration “suggested that he could refer to all students by first or last names only, without using gendered pronouns for any of them. That would have treated all students equally, and it would not have required him to say anything he did not believe. Why would he not do that?”



Read more »

All Things End Guest Blogger For the Symposium on Jack M. Balkin, The Cycles of Constitutional Time (Oxford University Press, 2020). Randall Kennedy

That one of the aims of Jack Balkin’s new book is to assuage feelings of despair highlights the extraordinary peril of the moment. “My purpose,” he writes, “is to offer a bit of hope for people who read the news every day and fear that things are only going to get worse.” He seems to adopt this purpose as a matter in part of political strategy. A dutiful liberal reformer, he seems to believe it important for him to lift the spirits of discouraged comrades. People, he insists, “can’t allow themselves to be overcome by despair and paralyzed into inaction.” Seeing hope as a staple of responsible political conduct, he maintains that while “hope does not guarantee action . . . it makes beneficial action more likely.” Balkin’s hopeful message is that our present predicament, albeit awful, is transitory. Better days are ahead. So hold on. Don’t give up. The wheel turns. Our present impasse, he assures us, is like an eclipse – momentarily frightening but over rather quickly. “ [O]ur recent unpleasantness,” he writes, “is only a temporary condition. We are in transition – a very difficult, agonizing, and humbling transition – but a transition nonetheless.” “The fate of the United States, “ he assures us, “ is not going to be the same as that of Turkey, Brazil, Hungary or Poland.” They might utterly fail. But not the good old U.S.A. “We are in our Second Gilded Age, and on the cusp of a Second Progressive Era.” Read more »

Faith in Renewal Guest Blogger For the Symposium on Jack M. Balkin, The Cycles of Constitutional Time (Oxford University Press, 2020). Stephen Skowronek The Cycles of Constitutional Time draws a bit on my own work on cycles of “political time,” but Balkin’s analytic lens is wider. “Constitutional time” is a composite of several different but intercurrent patterns of change, all of which are implicated in the moment at hand. After distinguishing these patterns, Balkin draws inferences about near term prospects from their contingent juxtapositions and mutual impingements. As a scholarly construction of where we are and whither we are tending, this is state of the art. Balkin situates the current juncture within three cycles observable in our political history: a cycle of political decay and regime reordering, a cycle of polarization and bipartisanship, and a cycle of constitutional rot and renewal. On the face of it, the configuration of these elements in American government today appears about as debilitating as it can be. The conservative regime that took hold in the wake of the Reagan Revolution is in an advanced state of decay, and its degeneration coincides with a time of extreme polarization and constitutional rot. Balkin dwells on this seemingly dire convergence. By distinguishing its several aspects, and by reckoning with their interaction, he takes full measure of the gravity of our situation. Remarkably, however, the prognosis offered is cautiously optimistic. Optimism follows from thinking cyclically. Balkin’s keen appreciation of this system’s regenerative capacities allows him to address the current malaise without recoiling and, in the process, to point the way out. If the past in any guide, Trump’s political intervention is unlikely to arrest, reverse, or otherwise surmount the crisis of the old order. The cycle of political decay and regime reordering points instead to a Trump misfire that will cut deeply against the conservative project and considerably brighten the prospects for a progressive reordering. Much of Balkin’s book is a sober assessment of the outlook for a new progressivism and its potential to overcome the degradations of polarization and rot. I share Balkin’s assessment of Trump’s moment in political time, and although I am not by nature an optimist, I too think that the prospects for a progressive reordering are brightening. Cycles should inform and encourage practical work toward that end, for, as Balkin is careful to note, past patterns do not determine the future. Useful as it is to call attention to the rhythms and rhymes, there are no exact parallels. Specifying a variety of different cycles at work on our constitutional system and indicating how they interact in unique configurations is itself an important advance in conceptualizing themes and variations. Balkin’s response to the skepticism I have expressed in past work about the capacity of presidents to continue to serve as drivers of political reconstruction follows in the same spirit: he acknowledges emergent obstacles to another presidentially-led political reconstruction, but rather than give up on the prospects for reordering, he illuminates alternative pathways to a similar end. All this said, Cycles passes lightly over an issue that is worth opening up. The conversation yet to be had is wedged between the diagnosis and the prognosis on offer. As I see it, the current interregnum, pregnant as it is with progressive possibilities, presents an especially severe test of the regenerative capacities of the American constitutional system. I take Balkin’s optimism as a prod to the rest of us to think more deeply about what lies behind the cycles we observe in our history. For all that has been said about these patterns, we know surprising little about why this system has periodically reordered itself. Faith in renewal has a lot of history to draw on, but I would feel more confident in that history if I had a firmer grasp of the features of the system that have been most essential to producing the regenerative effects. Read more »

Balkinization Symposium on the Cycles of Constitutional Time JB

The Cycles of Constitutional Time (Oxford University Press, 2020). We have assembled a terrific group of commentators, including Khiara Bridges (Berkeley), Jed Britton-Purdy (Columbia), Mark Graber (Maryland), David Grewal (Berkeley), Stephen Griffin (Tulane), Randy Kennedy (Harvard), Sanford Levinson (Texas), Stephen Skowronek (Yale), Julie Suk (CUNY), Sam Wang (Princeton), and Mariah Zeisberg (Michigan).





At the end of the Symposium I will respond to the commentators.

Void the police contracts Andrew Koppelman

Police unions all over the US have negotiated contracts that protect officers from discipline for misconduct. The result is that, so long as these deals are in force, cities are stuck with officers who are uncontrollably reckless and violent. But a body of forgotten law from the nineteenth century shows that states can free themselves from these fetters.



I explain in a new column at The Hill, here.

Is America a Myth? Sandy Levinson That is the title of a quite remarkable essay by Robin Wright in the New Yorker. Among other things, it takes note of Richard Kreitner's new book Break It Up, which I've earlier written about, though she also discusses at some length a book by Colin Woodard, Union: The Struggle to Forge the Story of United Staes Nationhood, which he apparently suggests--I've not yet read it--is indeed a myth. I have written several times about a foundation-stone of that myth, John Jay's essay published as Federalist 2, in which he invents a demonstrably preposterous narrative of American homogeneity in order to persuade his readers that we already are one nation and should therefore ratify the new Constitution presumably based on that premise. The first session of a reading course I'm giving this semester on the political thought of Abraham Lincoln focused on his well-known address in 1838 to the Springfield Lyceum, surely the most-studied political speech in American, or perhaps world, history presented by a 29-year-old unknown to an obscure community gathering. One of its major themes is how a sense of national identity forged in the American revolution--what I persist in calling American secession from the British Empire--will be maintained once the generation of people who actually fought in the revolution, or even youngsters who could hear the reminiscences of their parents and grandparents, left the scene. He would later refer, of course, altogether unsuccessful, to the "mystic chords of memory" as the bonds of the Union that should prove sufficient to prevent secession. I note, incidentally, that this is the 75th anniversary of the conclusion of the "Good War" in 1945. As Henry Longfellow wrote in an only somewhat different context, "hardly a person now alive remembers that day and year." Is it possible, in today's America, to construct a truly collective memory that unites us? So, more and more, I really do wonder what it is, other than what political scientists call "path dependence," that maintains us as an entity called the United States of America. The Declaration of Independence concludes with the rueful statement that the bonds of affection that had formerly kept us within the British Empire had become fatally frayed because of the alleged "tyranny" of King George III and the Parliament in London. And James Buchanan made a somewhat similar comment in his December 1860 last Message Message to Congress that the Union had to be kept together by affection and not by force of arms, even though he agreed that secession was unconstitutional. Do "we" have the requisite levels of affection vis-a-vis our political adversaries, or are we instead living in an increasingly Schmittian world divided between friends and enemies? If, as I fear, the answer is the latter, then what prevent civil war? And why shouldn't secession be viewed as a peaceful, if awkward, preferable alternative?

The Cycles of Constitutional Time (Oxford University Press, 2020) JB

The Cycles of Constitutional Time. Here is a summary of the book by chapter:



General Summary of the Book

America's constitutional system evolves through the interplay between three cycles: the rise and fall of dominant political parties, the waxing and waning of political polarization, and alternating episodes of constitutional rot and constitutional renewal. America's politics seems especially fraught today because we are nearing the end of the Republican Party's long political dominance, at the height of a long cycle of political polarization, and suffering from an advanced case of "constitutional rot." Constitutional rot is the historical process through which republics become increasingly less representative and less devoted to the common good. Caused by increasing economic inequality and loss of trust, constitutional rot seriously threatens the constitutional system. But America has been through these cycles before, and will get through them again. America is in a Second Gilded Age slowly moving toward a second Progressive Era, during which polarization will eventually recede.

The same cycles shape the work of the federal courts and theories about constitutional interpretation. They explain why political parties have switched sides on judicial review not once but twice in the twentieth century. Polarization and constitutional rot alter the political supports for judicial review, make fights over judicial appointments especially bitter, and encourage constitutional hardball. The Constitution ordinarily relies on the judiciary to protect democracy and to prevent political corruption and self-entrenching behavior. But when constitutional rot is advanced, the Supreme Court is likely to be ineffective and may even make matters worse. Courts cannot save the country from constitutional rot; only political mobilization can.

Chapter One: The Recent Unpleasantness

American politics appears dysfunctional because the country is going through a very difficult transition. Understanding politics in terms of recurring cycles can offer some hope in troubled times. There are three cycles at work: a cycle of the rise and fall of political regimes; a cycle of polarization and depolarization; and a cycle of constitutional rot and renewal. America is facing similar challenges as other constitutional democracies, but America's party system, institutional history, and constitutional structures affect the way that our politics processes these challenges. Hence there is reason for a guarded optimism. We are at the end of our Second Gilded Age which will give way to a Second Progressive Era. Even in our bitterly polarized world, we can already see signs of how American politics will eventually depolarize, creating new opportunities for cross-party collaboration. Read more »

Learning from Lincoln? Sandy Levinson As we endure the truly obscene Republican Convention--the only thing it's lacking is Leni Reifenstahl as the official photographer--I cannot help wonder about the proclivity of the Trumpistas to embrace themselves in the mantle of Abraham Lincoln. In that spirit, perhaps, we might reflect on the key paragraph of his Second Inaugural Address--spoiler alert, it's not the "malice toward none and charity toward all" paragraph--as we careen to what I fear is an almost inevitable civil war that will make us wish for the opportunity of a peaceful secession. In any event, the paragraph is this one:





One eighth of the whole population were colored slaves, not distributed generally over the Union, but localized in the Southern part of it. These slaves constituted a peculiar and powerful interest. All knew that this interest was, somehow, the cause of the war. To strengthen, perpetuate, and extend this interest was the object for which the insurgents would rend the Union, even by war; while the government claimed no right to do more than to restrict the territorial enlargement of it. Neither party expected for the war, the magnitude, or the duration, which it has already attained. Neither anticipated that the cause of the conflict might cease with, or even before, the conflict itself should cease. Each looked for an easier triumph, and a result less fundamental and astounding. Both read the same Bible, and pray to the same God; and each invokes His aid against the other. It may seem strange that any men should dare to ask a just God's assistance in wringing their bread from the sweat of other men's faces; but let us judge not that we be not judged. The prayers of both could not be answered; that of neither has been answered fully. The Almighty has His own purposes. "Woe unto the world because of offences! for it must needs be that offences come; but woe to that man by whom the offence cometh!" If we shall suppose that American Slavery is one of those offences which, in the providence of God, must needs come, but which, having continued through His appointed time, He now wills to remove, and that He gives to both North and South, this terrible war, as the woe due to those by whom the offence came, shall we discern therein any departure from those divine attributes which the believers in a Living God always ascribe to Him? Fondly do we hope -- fervently do we pray -- that this mighty scourge of war may speedily pass away. Yet, if God wills that it continue, until all the wealth piled by the bond-man's two hundred and fifty years of unrequited toil shall be sunk, and until every drop of blood drawn with the lash, shall be paid by another drawn with the sword, as was said f [ our ] three thousand years ago, so still it must be said "the judgments of the Lord, are true and righteous altogether"

So I cannot help wonder what the Christian Evangelical base that Trump is counting on for any prospect of victory thinks of this passage of Lincoln's. It clearly suggests that the awful carnage of 1861-65--Lincoln didn't know what would come thereafter--was the price perhaps justifiably paid by a sinful country under Divine judgment. If one is a secularist, as I consider myself to be, then this paragraph is unmitigated nonsense, but, then, so is Evangelical Christianity or, for that matter, any and all other religions, even if we believe, for political reasons, as does Andy Koppelman, that believers must be accommodated in order to preserve civil peace. But I'm assuming that there are some people who take Lincoln's brand of religion seriously, who believe, as did the ancient Hebrew Prophets, that we indeed live under the yoke of Divine judgment.



So if one takes Lincoln's theology of 1861-65 seriously, then is it thinkable that the coming civil war should also be conceptualized as "God's will" that "all the wealth piled up" by the exploitation of the only formally freed "bondsmen (and women)" "shall be sunk"? How would one seriously debate such a premise, as is true, of course, of Lincoln's initial assertion. As with Sinai, Christ's resurrection, or Allah's dictation to Mohammed, one either accepts it as the recognition of ontological truth or dismisses it as pure nonsense (or, as I do, settles for an agnosticism that simply states that our epistemological resources give us no reason to believe that it is true, but who really knows, as with the possibility of visitors from outer space). I suppose it is possible, as the Trumpistas would no doubt argue, that America has removed all residues of the 250 years of slavery (as of 1865) and that anyone who argues otherwise is a deluded supporter of terrorism, like Joe Biden. But my real point, is that if one is going to cite Lincoln, one should give him the courtesy of taking his thought seriously, unlike the intellectual and moral cretins in the personality cult devoted to Donald HJ. Trump.



I'm not really interested in hearing from people describing this as a partisan rant or willing to present Herschel Walker as the definitive analyst of Donald Trump's lack of a racist bone. This is a partisan rant against a fascist cult and, far more importantly, a genuine expression of interest about the continued use of Abraham Lincoln as a go-to source for guidance on our polity a 155 years after his assassination.





Liberal conservatism Andrew Koppelman deserves our attention today? Has conservatism any intellectual merit? Or is it essentially a mere collection of rationalizations for the status quo? With Trump’s influence and visibility, never has the issue been more urgent -- or more confusing. Trump seems to be a man of the Right. The Republican Party today is largely defined by loyalty to him. Is he a conservative? The Never Trumpers say he’s not, but why? Is there any form of conservatism thatour attention today?

A good place to begin to think about those questions is the work of Roger Scruton, who died in January. Princeton Prof. Robert George called him “the most important Anglo-American conservative thinker of his generation.” British Prime Minister Boris Johnson tweeted , “We have lost the greatest modern conservative thinker — who not only had the guts to say what he thought but said it beautifully.”

I use Scruton's work to try to sort out what's attractive in conservatism today - and come out of the closet as myself a conservative of a peculiar sort - in a new piece at the New Rambler, here

John Bingham in Japan Gerard N. Magliocca I want to flag a new book that may be of interest. Samuel Kidder's Of One Blood All Nations discusses John Bingham's long tenure (from 1873-1885) as the United States Ambassador to Japan. In my book on Bingham, I did not do full justice to this phase of his career. Kidder is in a much better position to do so as a former diplomat with considerable experience in Japan. An important fact that I learned from the book is that Bingham was strongly opposed to the Chinese Exclusion Acts of 1882. His criticism rested partly on the harm that the Act would inflict on America's standing in Asia, but also partly on the fact that the exclusion was racist. The latter points, of course, tie in nicely with Bingham's authorship of the Equal Protection Clause.

Why must we take Grutter seriously? Sandy Levinson I confess myself quite mystified by the argument underlying Jason Mazzone's posting earlier today. Most obviously, the 25-year limit is dicta rather than holding, unless one really does believe that the Supreme Court is a super-duper legislature entitled to adopt rules and at the same time stipulate a sunset provision, without the slightest semblance of, say, hearings or citation of evidence as to why 25 years instead of 20 or 50 or whatever. I suspect that the "liberals" signed on to O'Connor's intellectually problematic opinion because it was necessary to have an "opinion of the Court" actually upholding the Michigan Law School's admissions procedure, not because they truly believed they were adopting a "rule of law" that would be binding on the future.



Secondly, as I have written elsewhere, Sandra Day O'Connor exhibited her complete and total misunderstanding of the "diversity" argument. I might make sense to say, had the rationale for the program been ratifying past social injustice, that a quarter century from now, i.e., 2028, we're completely confident that the problems linked to racial discrimination would be over and there would no longer be a need for the program. It makes no sense whatsoever to say that 25 years from now, there will be need for some degree of self-consciousness about producing a "diverse" student body (assuming, of course, that that is desirable in itself, which is a separate argument). Consider the admissions process for a music department. One could simply admit the "best musicians" (based on God knows what criteria) and accept the possibility that in any given year (or group of years) there would simply be no oboists, double bassists, tubas, harpists, or trombones admitted, so that the orchestra that's an important part of the music school will have to find compositions lacking these instruments or just do without. In any event, one would be relying on the "invisible hand" to produce the mix of instrumentalists (or vocalists among tenors, baritones, altos, sopranos, and basses). Not to put too fine a point on this, that would be a crazy admissions process. (I could also elaborate the point in terms of sports analogies, whereby the football program in any given year could have 20 quarterbacks and no interior linemen, etc.). Maybe it suffices to say that a law school has to concern itself with the most elemental kind of "diversity" in terms of different curricular interests, so that even if the "best" dozen candidates in a given year, all of whom would be thrilled to accept an appointment at Law School X, are constitutional layers or tax specialists, one would still, nonetheless, hire "less qualified" (on the basis of God knows what metric) applicants who actually want to teach property or torts, etc. So her opinion, intellectually, comes close to being utter nonsense, though it produced what many of us believe to be the right result.



So what Justin has to explain is exactly why law school deans, or anyone else, should take fully seriously a 5-4 opinion that was fatally flawed, intellectually, the day that it was decided and where the Court is totally without the authority to stipulate sunset provisions for its own decisions.

Do 150 Law School Deans Reject Grutter? Jason Mazzone June 23, 2028 is on the horizon. That’s the date on which the Supreme Court “expects[] . . . the use of racial preferences will no longer be necessary to further the interest” of public law schools in “student body diversity.” Grutter v. Bollinger (2003). When, as seems inevitable, the Court confronts Grutter’s built-in expiration date, what will it make of this recent statement from 150 law school deans?: Preparing law students to be lawyers requires that they should be educated with respect to bias, cultural awareness, and anti-racism. Such skills are essential parts of professional competence, legal practice, and being a lawyer. We believe that every law school should develop such training and education for its students. . . . We believe that the ABA should require, or at least consider requiring, that every law school provide training and education around bias, cultural competence, and anti-racism. In Grutter, the Court had a particular view of the compelling interest that justified the use of race in admissions. Importantly, it did not see student diversity as an interest in and of itself. Instead, student diversity was the means to the educational and broader societal missions of law schools. Diversity within the law school, the Court explained, “promotes cross-racial understanding, helps to break down racial stereotypes, and enables students to better understand persons of different races.” It “better prepares students for an increasingly diverse workforce and society, and better prepares them as professionals.” And it promotes law schools as legitimate “training grounds” for society’s “leaders.” The Court also found in Grutter that consideration of race in admissions was necessary to achieve these goals: there did not exist a race-neutral alternative. The law deans’ letter seems to cast doubt on all of this. It suggests that over the past seventeen years use of race in admissions has not produced the interests that Grutter recognized as compelling. Instead, the deans report, “[w]e are in a unique moment in our history to confront racism that is deeply embedded in our institutions, including in the legal profession” and thus a brand new approach is required. So too, the deans letter suggests, there is in fact a race-neutral alternative: the training requirement the deans are now proposing. Perhaps one avoids these conclusions by saying the following: consideration of race in admissions has generated some of the contended benefits of diversity but additional steps are needed to fully secure the benefits. Perhaps. It isn’t the position the law school deans advance in their letter. And in this business, with a ticking clock, precision might be everything.



Perry v. United States and the Constitutional Canon Gerard N. Magliocca Last week I appeared on the third episode of the new podcast "Clauses and Controversies," hosted by Mitu Gulati and Mark Weidemaier. The episode focused on Perry v. United States, a 1935 Supreme Court case which concluded that there was no remedy for Congress's abrogation of the gold clause provisions in United States Treasury bonds. At one point, Professor Gulati and Professor Weidemaier asked me a fine question for which I did not have a fine answer: Why isn't Perry one of the most important cases in the constitutional canon given that the decision was extremely important and a huge success? I wrote a law review article about Perry several years ago, but even I haven't taught the case in a class. Let me summarize Perry for those of who have not heard of the case. Prior to 1933, United States Treasury bonds contained standard "gold clauses" stating that the bondholder would be repaid in gold dollars. After 1933, though, these gold clauses were abrogated by Congress and by the President. The bondholders sued for damages. A plurality opinion by Chief Justice Hughes concluded that Congress lacked the power to abrogate public gold clauses (citing Section Four of the Fourteenth Amendment). He then concluded, in reasoning that is variously described as "puzzling," "stupefying," or "nonsense," that the bondholders were not entitled to a remedy. In essence, then, the abrogation was upheld without being upheld. Market reaction to the decision was very positive, and many observers felt that a contrary ruling would have precipitated another economic disaster. Why, then, is Perry totally ignored by modern constitutional lawyers? One answer is Chief Justice Hughes made his opinion as confusing as possible. He apparently wanted to preserve the legal fiction that United States debt was inviolable (by denying that Congress could devalue) while still allowing the devaluation to go forward. This lack of clarity probably makes Perry less accessible. Another idea is that nothing similar has occurred in the United States since the 1930s, though elsewhere in the world Perry gets more attention because there are recurring debt defaults or devaluations across the globe. There's a bigger issue though. Constitutional law is very good at analyzing decisions that (broadly speaking) fit into some doctrinal category or a decision that purports to create a new such category. What should the legal standard be? How does the legal standard draw from precedent? What are the standard's implications? Should there be exceptions? And so on. What constitutional is law is not good at is looking at cases that can be described as "one-way tickets," "hard cases," or "sui generis." Here the relevant question is whether the Supreme Court is answering a specific and very important legal problem sensibly without all that much concern for the past or future. Perry is one of these cases. So was Bush v. Gore.





"Originalism" and the Natural-Born-Citizen Debate Marty Lederman Last week, I joined 40 other scholars in a letter published here, explaining why there's no serious question that Kamala Harris is constitutionally eligible to be elected Vice President. In a post on the Originalism Blog provocatively entitled "Originalism Is Our Law (At Least When It Suits Us)," Mike Ramsey concurred with the bulk and conclusion of our letter. Professor Ramsey also, however, accused at least some of us of inconsistency, in that we're “prominent originalism critics" and yet we signed a letter that relies upon what Ramsey calls "originalist arguments.” In a post this morning over at Dorf on Law, Mike Dorf and I explain that, contrary to Professor Ramsey's reading, our letter doesn't rely exclusively on the "original public meaning" of the constitutional text--indeed, our letter doesn't rely on textual "meaning" at all. To be sure, the letter does (in part) invoke pre- and early constitutional understandings of whether persons born in the United States to foreign nationals are "natural born citizens" eligible for the presidency (and thus to be elected Vice President, too). As Mike and I explain, however, that quite ordinary, common inquiry into early understandings of how the Constitution should operate isn't at all inconsistent with the critique of contemporary "originalism" that many of the letter's signatories have made.



Secession versus revolution Sandy Levinson Several readers object to my insistence on describing 1776 as a "secession from the British Empire" instead of "The American Revolution." I am basing this on the argument of David Armitage, the historian at Harvard, and his book on "Civil War." Quite briefly, he defines "civil wars" as contests over who will control the government of a country. Think, e.g., of the Spanish Civil War or, for that matter, the English Civil War in the mid-17th century. The Americans never had the slightest intention of moving on London to place George Washington in control of the British Empire. They wanted out, and they were willing to engage in a very violent struggle to do so. Everyone recognizes that the Quebecois, for example, do not envision themselves as engaging in a civil war to take over the government in Ottawa and thus rule Vancouver, but, instead, to leave Canada and establish their own independent country. Ditto Scottish or Catalonian secessionists. On the other hand, the Russian or French Revolutions were "real" revolutions in that they were all about who was going to control the entire country in question.



I'm really not clear why people are so resistant to recognizing the analytical difference between those fighting civil wars as against those fighting to secede from an existing polity and thus to recognize as well that the American Patriots are accurately described as secessionists instead of revolutionaries, even if one wants to go on and say that some of their political ideas were "revolutionary." Perhaps it's because we falsely identify "secessionism" exclusively with Jefferson Davis and his friends. As I note, had things taken a different turn earlier in our history, we might all be aware of the Hartford Convention secessionists or, for that matter, the Abolitionist secessionists. As I've written on earlier occasions, I'm sure that every single reader has supported at least one secessionist movement and/or one revolutionary movement and that every single reader has opposed at least one of each. Why resist the analytical clarity that Armitage brings to understanding events?



UPDATE: Let me admit that I do think that "civil war" may in fact be a misnomer for the events of 1861-18__ (depending when you think the conflict ended, assuming it is truly ended even today). "War Between the States" clearly accepts the Southern, Resolutions of '98 view of the Union, which makes me uncomfortable adopting it. I do believe there was something called a Union that distinguished the U.S. after 1789 from the confederacy of independent states that had preceded it. I'm not sure what's wrong with "The War for Southern Independence," which is descriptively accurate and requires no one to accept the legitimacy of the striving for independence (anymore than the Brits had to accept the legitimacy of our own "Declaration of Independence"). You can argue, of course, that the Confederates were in fact trying to gain control of the national government (which they effectively had until Lincoln's electoral vote election) by forcing a compromise that would have let them "return" to the Union with enhanced protections for slavery, even beyond the original Corwin Amendment that Lincoln in fact supported in his First Inaugural. From this perspective, 1861 was a massive game of chicken over national policy in which neither side had a glimmer of the conflagration that would ensue and they were really fighting over the terms of "union" (as happened, of course, during Reconstruction, which the Southern whites substantially won after 1877).

x

Break It Up [?]. Richard Kreitner and American Secessionism Sandy Levinson “To give the victory to the right, not bloody bullets, but peaceful ballots only, are necessary.” Thus wrote Abraham Lincoln in notes that he used to prepare his notable speeches. One can, of course, question the empirical validity of his assertion; that it was necessary, in fact, to expend 750,000 lives in order to procure victory for the righteous cause of ending chattel slavery in the United States. The ballots that elected Lincoln as president were not remotely sufficient.

But Lincoln’s statement, and the contrast between “ballots” and “bullets” has also been used more generally to denounce the legitimacy of the very idea of secession inasmuch as the formula was offered—and accepted by many analysts afterward—as a knockdown argument against Southern secessionists. We settle disputes, it is argued, through elections. Losers do not have the right to pick up their balls and establish a brand new playing field out of the existing field of play. Discussions of “constitutional hardball,” which are rife these days—and a major theme of Mark Tushnet’s new book discussed in a recent symposium here on Balkinization—include lots of possibilities, including Court-packing or even, should GOP controlled states refuse to certify electors in states Biden carries after November, the refusal by the Democratic House to seat any members of those states’ congressional delegations (inasmuch as they would, however Republican, no longer comport with what is expected of a “Republican Form of Government”). No one—or perhaps it should be said “no one who is respectable—is suggesting the ultimate form of hardball, withdrawing from a Union that one might argue has become at least as illegitimate, in important respects, as the British Empire was in 1776.

Read more »

AMA: Evan Bernick Asks About Constitutional Dealbreakers JB Continuing this ongoing series.



EB: Suppose we somehow discovered that Brown and Loving and Reynolds and Roe were all incompatible with original meaning. Would that be enough for you to abandon originalism? If not, what would be? Any dealbreakers?



JB: I assume that you are asking me about my own conception of original meaning: a thin theory of original meaning that is supplemented by constitutional construction. If these cases turn out to be incompatible with a thin theory of original meaning, then the original meaning prevails. That's the point of asserting that original meaning is binding on interpreters. If there is a deal breaker, then the Constitution is inadequate and needs to be scrapped or amended. In fact, my friend Sandy Levinson has argued that there are many parts of our Constitution that should be regarded as dealbreakers. Our recent book, Democracy and Dysfunction, debates this question.



Consider what it would require for Brown, Loving, Reynolds, and Roe to be incompatible with the thin theory of original meaning. It would mean that there isn't a plausible construction of the Constitution's text that produces the doctrines in these cases. For example, it would mean that there is no plausible construction of "equal protection of the laws" that would lead to the result in Brown. Or it would require that the Constitution explicitly states that no rights of this kind exist.



For many years everyone assumed that there was absolutely no way that Roe v. Wade was consistent with the original meaning of the Fourteenth Amendment. But the whole point of my 2006 article, Abortion and Original Meaning, was to show that this assumption was false.



If women have rights of equal citizenship, which they do under the Fourteenth Amendment's various clauses, they also have rights to reproductive freedom, because the first set of rights is not really complete without the second. My argument was then, and remains now, that unless women have the right to choose the number and timing of their children, they will always be at a disadvantage vis a vis men in multiple areas of political, economic, and social life. And this disadvantage means that they will not be truly treated as equal citizens.



Laws that restrict women's reproductive rights are class legislation in violation of the Fourteenth Amendment's Due Process and Equal Protection Clauses. Far from being inconsistent with original meaning, a guarantee of reproductive freedom is the best reading of the Fourteenth Amendment.



To be sure, my view is that the result in Reynolds is best understood under the Guarantee Clause and not under the Equal Protection Clause (L.O. pp. 243-44). So I would replace the "one person one vote formula" with a requirement of structural fairness in the processes of representation. But that is not a deal breaker. That is a better account of what the Constitution actually requires.





EB: In 1996 you wrote (in Agreements with Hell and Other Objects of Our Faith) that “[o]ur theories of the Constitution are makeshift attempts, reflecting the concerns of our era but dressed up as timeless claims about interpretation.” Do you still think that that’s true? If so, might originalism have an expiration date? If not, why not?



JB: Yes, I still think that is true. Certainly the particular theories that we argue about today and some of the claims that we make about the Constitution today will look quite different to people in the future. Some of these theories and claims will look implausible, some beside the point, and a few even downright silly.



But it's misleading to talk about "originalism" as if it's a single thing that could have an expiration date. There are lots of different flavors of originalism, and lots of specific claims that have been made in the name of originalism.



Moreover, we should distinguish today's versions of originalism-- and the debates that currently roil the legal academy--from the very general idea that that interpreters should look to the original meaning of the text, or to the purposes of those who framed or adopted the text. Appeals to original meaning, intention, and understanding are standard forms of constitutional argument that people have employed for a very long time and will probably employ for a long time to come in American constitutional culture. People of all political and ideological stripes do this and will continue to do this, as we saw most recently in the impeachment of Donald Trump. Most theories of constitutional law-- including living constitutionalist theories-- recognize the persuasiveness of arguments from original purposes and meanings. They simply recognize the persuasiveness of other kinds of arguments as well. (For that matter, so do most originalist theories.)



I expect that many specific versions of originalism and many specific originalist arguments will seem implausible many years later, but that is also true of many particular versions of nonoriginalism and many specific nonoriginalist arguments.



I hope that the basic argument in Living Originalism still seems plausible to readers fifty years from now, but I have little control over that. We write constitutional theory in our own time, and hope that it is useful to people later on.



EB: Should public officials ever deliberately violate the Constitution’s original meaning? If not, why not? If so, when/how?



JB: Again, we are assuming a thin theory of original public meaning.



Officials should not knowingly and deliberately violate the Constitution's original meaning in the thin sense. In most cases, that would involve violating the Constitution's clear command. In Sandy Levinson's and my terminology, openly defying the Constitution would precipitate a Type One constitutional crisis. It would signal that the Constitution had failed. Disobeying the Constitution under these circumstances would only be justified if political revolution were justified. And it would be justified outside of the law, not within the law.



Officials openly and deliberately violating the Constitution, however, is different from a situation in which officials have a good faith dispute about the correct interpretation of the Constitution and believe that they are actually following it. Officials often disagree about the meaning of the Constitution, and those disputes are settled in the courts or in politics.



As noted above, violating the clear command of the Constitution is usually also a violation of the original public meaning (in the thin sense). But the reverse is not always true. Under the thin theory, the original meaning may be ambiguous or vague and political officials may be uncertain how to resolve ambiguities or apply vague terms. There may be good faith disagreements in these cases, and resolving them in the courts or through political give and take between the branches does not constitute a constitutional crisis.



EB: Do oaths add anything to anyone's moral obligations to follow the Constitution? Why or why not?



JB: An oath is a solemn promise to behave in a certain way. It adds the moral obligation of promising to whatever existing obligations one already has. It is important for government officials to obey the Constitution, because they are clothed with state power. The Constitution limits and channels their power. Therefore it is a good idea to commit them in advance to promise to support it.





Four Threats: The Recurring Crises of American Democracy Sandy Levinson That is the title of a new book by two distinguished political scientists, Suzanne Mettler and Robert G. Lieberman, who teach, respectively, at Cornell and Johns Hopkins. They begin their "Acknowledgments" note by confessing that they had last taught basic courses to undergraduates on "Americcan Government and Politics" in the now long-ago days of the Clinton Administration. On returning to teach such courses eleven years later, during the Obama Administration, they "discover[ed] that it was like teaching a different course, about a transformed nation."

What they had absorbed in graduate school, during the 1980s, and dutifully taught to their students early in their careers, had become, if not irrelevant, then, at least, seriously misleading. They had learned--and taught--that "American political institutions [operated] like the gears of a clock that fit together neatly and ran smoothly, promoting moderation, compromise, and incrementalism." No sensible person believes that today, though specific diagnoses obviously differ. Read more »

One Aim for the Next 100 Years of the 19th Amendment: More Women in All Levels of Public Office Linda McClain August 26th 2020, Women’s Equality Day, will mark the 100th anniversary of the certification of the 19th Amendment to the U.S. Constitution. On August 18, 1920, Congress ratified the Amendment. Today, Virginia Sapiro (BU, Department of Political Science) and I published this column in BU Today’s Point of View, arguing that, on the 100th anniversary of the 19th Amendment, a critical priority before we mark the next significant anniversary should be increasing political representation by women—particularly women of color—at all levels of office. Here are a few points we make in our longer essay. First, there is a difference between saying that the right to vote could “not be denied or abridged on account of sex” and saying that women had the right to vote. The 19th Amendment did not eliminate other barriers women faced, like Jim Crow laws, literacy requirements, grandfather clauses, felon restrictions, and a variety of other types of voter suppression. Even so, the 19th Amendment marked the first time a constitutional principle of gender equality became a part of the US Constitution, limited though that principle was. It provided a constitutional basis for gaining a right that thousands of women (and some men) had dreamed of, worked for, and gave their health and lives for over the course of 80 years. Second, the women (and men) who participated in the woman suffrage movement included people from every region of the country; people of all races, classes, and religions; wealthy women and poor women; recent immigrants and people whose families had settled more than a century earlier. Some suffrage movement allies thought the vote was the most important thing. Some saw it as an instrument to help achieve other desired ends relating to securing women’s full and equal citizenship. Third, the history of the woman suffrage movement and its internal workings also reflect the larger forces of the society in which it was embedded: racism, ethnocentrism, class conflict, sectionalism, political party antagonisms, and political opportunism. Understanding this knotty and often contradictory history does not detract from the achievements. It means, rather, that the history of the conflicts, struggles, progress, and loss that led to the 19th Amendment is a great lens through which to study the realities of American aspirations for democracy. Read more »

Scholars' Letter on Senator Kamala Harris’s Eligibility Guest Blogger Neil Siegel



Senator Kamala Harris’s eligibility to be a vice-presidential candidate has been questioned on the basis of an erroneous contention that she might not be a “natural born Citizen” as required by Article II of the Constitution. When President Trump voiced this idea in a typically uninformed manner, he pointed to a Newsweek article written by John Eastman. Eastman’s conclusion has been roundly and correctly rejected in recent op eds that have pointed out some of its errors – and but for the President’s invocation that might well have been the end of it. It is important for the public record to reflect just how baseless this idea is, and how it runs completely counter to the meaning of both Article II and Section 1 of the Fourteenth Amendment. The following legal analysis, signed below by forty legal scholars, explains why.





Read more »

Free speech gone wild Andrew Koppelman The Sixth Circuit Court of Appeals is being invited to invalidate the entire field of hostile environment harassment law. One cannot confidently predict that the invitation will be declined. If the plaintiff in Meriwether v. The Trustees of Shawnee State University prevails, teachers at public colleges will have a constitutional right to subject their students to bigoted slurs. Much of anti-discrimination law would be deemed unconstitutional. I explain in a new column at The Hill, here.

The constitutionality of a federal mask mandate JB Josh Blackman, James Phillips, and John Yoo argue that a federal mandate to wear masks to prevent the spread of coronavirus would be unconstitutional under NFIB v. Sebelius. If Congress cannot force people to buy health insurance, it cannot force people to wear masks. In addition, the federal government cannot justify a mandate on the grounds that people's failure to wear a mask will have a substantial (indeed, devastating) effect on interstate commerce. Wearing a mask is not economic activity and so Congress cannot take those effects into account, no matter how great. (Lopez, Morrison) Hence Congress has no power under the Commerce Clause to require people to wear masks, even if it would promote public health and save the economy. The principle of limited federal government is simply too important.



I beg to differ.



Read more »

Masking the Constitution Andrew Koppelman Back in April, Steve Lubet and I suggested that the Supreme Court’s decision in NFIB v. Sebelius could seriously hamstring the efforts of the federal government to control Covid-19. At the time, the question was almost purely theoretical, given President Trump’s lack of interest in controlling the disease. It is now urgently relevant, because increasing numbers of Americans understand that Mr. Trump’s desire for a second term is a mortal danger to themselves and their families, and Joe Biden is likely to replace him. And Biden is contemplating aggressive measures to control the virus, such as a nationwide mask mandate.



So, predictably, conservative legal academics Josh Blackman James Phillips, and John Yoo have responded by asserting that neither the President nor Congress have the power to take such measures. And they are making exactly the arguments that Lubet and I anticipated.

If they are right, then if some states allow themselves to become petri dishes of disease, their residents will be free to bring the disease to other states, neither those states nor the federal government will be able to control its spread.

extensively. The trouble with these arguments is that they turn on the limitations on the commerce power that the Court invented in NFIB v. Sebelius, and those limitations have no basis in the Constitution, as I have argued

You might think that this argument comes at an inopportune time. What sane person insists on inventing new limitations on government power, limitations that constrain its capacity to deal with a pandemic, when a thousand people are dying every day? But that line was already crossed in the Obamacare case. This is just more of the same.

Kamala Harris and Marco Rubio Gerard N. Magliocca The argument that Kamala Harris is ineligible for the vice-presidency because her parents were not citizens when she was born here would mean that Marco Rubio is also ineligible. Senator Rubio was born in Florida but his parents (who were from Cuba) were not American citizens at the time of his birth. During the 2016 campaign, however, Donald Trump never suggested that Senator Rubio was ineligible to be President. And he was aware of that part of the Constitution, as he suggested many times that Ted Cruz was ineligible for the presidency because he born in Canada (to an American citizen parent). Of course, Ted Cruz, Marco Rubio, and Kamala Harris are all eligible to be President or Vice-President. The Constitution makes no distinction between types of birthright citizenship.

The Stakes in the Administration’s Problematic Unemployment Plan David Super A fair amount of my writing for this site consists of updates on the development of major federal legislation affecting the budget, health care, and human services. My two posts earlier this week on President Trump’s weekend executive actions served that purpose. Implicit in those posts was the belief that the lawlessness of the Administration’s solitary, poor, nasty, brutish, and short unemployment program matters. This post explains why that is so. To review, the “lost wages assistance (LWA)” program that the President announced on Saturday is supposed to be a substitute for new coronavirus relief legislation that will lift the political pressure Republicans were feeling to negotiate with Democrats. If it works as claimed – which it surely will not – it would deliver $44 billion in aid to the unemployed. As such, it would provide just over one percent of the $3.4 trillion offered by the House-passed HEROES Act. It does nothing about the continuing shortages and delays in coronavirus testing, it provides no food or housing assistance, and it actually worsens the $555 billion state fiscal crisis that threatens deep cuts in health and education spending at the time when those are most needed. With most of the effects of the prior relief bills largely dissipated, this solitary $44 billion – which could and should be spent instead on housing assistance, state fiscal relief, or improving testing – is grossly insufficient to prevent a rapid escalation of hardship, including many families losing their homes. (Contrary to what the Administration has suggested, the executive order on evictions and foreclosures provides no actual protection to anyone; if the Administration was prepared to do anything substantial, surely it would have included that action in the President’s announcement.) The benefit the President originally announced was $400 per week, already a one-third reduction from the $600 per week unemployed workers were receiving under the Federal Pandemic Unemployment Compensation (FPUC) program that expired in late July. Because states’ fiscal crises prevented them from coming up with the statutorily mandated 25% match, the Administration subsequently reduced the benefit further to $300 per week, half of what workers had received previously. Low- and moderate-income families that had calibrated their household expenses to what they were earning cannot absorb cuts of this magnitude without considerable hardship. On-going chaos in the Administration’s efforts to settle on ground rules for the program and the difficulties many states will have reprogramming their computers to the Administration’s specifications will delay the provision of this modest benefit still further, likely until the end of August or some time in September. Because the Administration only set aside enough money for five or six weeks of aid, many families may receive only a single retroactive check. Yet although the program will be extremely short, it may be just long enough to dissipate the political pressure on the Administration and congressional Republicans to agree to new coronavirus relief legislation. If it does, that will have huge implications. This $44 billion is grossly insufficient to prevent a collapse of consumer spending that could tip this severe recession into a full-blown depression. Without substantial fiscal relief, states will have to make massive cuts in basic services. To get a sense of how large states’ gross $555 billion three-year budget shortfall is, that is slightly more than the amount of state money states were estimated to spend on education at all levels – primary, secondary, and higher education – in 2019. With escalating and unpredictable costs as schools try to resume instruction, these cuts impact would be devastating. Obviously states will not take the full amount of their cuts from aid to education, but the shortfall is so great that they cannot shield any major components from deep cuts. And history tells us programs eliminated during recessions often are not revived when the crisis passes. The future of out democracy is very much at stake. One of the major sticking points in negotiations over new coronavirus relief legislation reportedly was the House’s provision of more money to the Postal Service to offset its steep decline in revenues and ensure it has the capacity to administer mail voting. The President largely admitted that he is blocking this funding to prevent mail-in voting. It likely is no coincidence that his negotiators walked out on negotiations with Congress the same day the Trump mega-donor recently installed as postmaster general removed twenty-three senior Postal Service administrators from their positions amid substantial reductions in services. To be clear, this program is unlawful. It is purportedly established under a section of the statute allowing kinds of aid “other” than those listed in the Stafford Act when disaster unemployment assistance is a listed benefit (but with conditions that do not serve the President’s purposes). Also, the Administration is paying the full cost of the benefit with federal funds in defiance of the Stafford Act’s unwaivable requirement that states pay one-quarter of the cost. (Allowing states to double-count their regular unemployment benefits as their match when they are already counting those benefits to meet requirements of unemployment law is expressly prohibited by longstanding fiscal integrity rules.) And the program is unworkable, to the point that many if not most states likely will not participate either because they cannot complete the necessary extensive reprogramming of their computers in time or because they are afraid that the Government Accountability Office or Inspector General will note the illegality of the plan and cause the states to be billed for the cost of the FEMA money they received. (Executive officials cannot make binding commitments of federal funds not approved by Congress.) The biggest problem with this program, however, is its deceitfulness. If enough of the public is deceived into thinking that this is viable and substantial to the point that they accept Republican obstruction of new relief legislation, tens of millions of desperate people will face severe hardship, our economy will decline even further, and our democracy may not recover. @DavidASuper1