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The Appellate Void

Andrew Coan

What would it look like for the executive branch to defy a court order? Typically, we picture adramatic showdown between the President and the Supreme Court, the whole country watching with bated breath. But there's another, less dramatic scenario, which has been largely overlooked in recent commentary.

Suppose the administration simply defies a district court order and declines to appeal. The plaintiffs, having already won, would have no standing to file an appeal of their own. Nor could they petition the Court of Appeals or the Supreme Court for a writ of mandamus.

The Courts of Appeals have no jurisdiction to grant mandamus against executive officials under these circumstances. AsMarbury v. Madison established, such actions constitute original, not appellate, proceedings and can only be brought before a court with original jurisdiction. The All Writs Act permits writs only "in aid of jurisdiction," requiring an existing appellate case. Without an appeal, neither the Supreme Court nor the Court of Appeals would possess a clear procedural vehicle to intervene.

Contempt sanctions might solve this problem. But the best recentscholarship suggests that they are a fragile remedy even under normal circumstances. In this scenario, it seems quite possible they would fail completely. Enforcement depends on cooperation from the executive branch. And without an appeal, higher courts are likely powerless. 

Instead of a cataclysmic clash with the Supreme Court, we might see the President casually brushing aside a single, obscure district judge, like a pesky gnat.

As far as I can tell, this scenario would be unprecedented in modern times, so there may well be wrinkles I have overlooked. Historically, executive officials have had goodsuccess appealing contempt sanctions and other compliance issues. Probably, that's the route the Trump administration will take, as it has already done in several cases. But a President intent on defying the courts might see tactical advantage in confronting a single district judge rather than the Supreme Court. 

This approach offers an opportunity to test the limits of judicial authority and normalize non-compliance with the courts in a lower visibility setting. It could be especially attractive in a case the administration expects to lose on appeal--or as a warning shot in response to a Supreme Court defeat. 

Think of this strategy as a kind of reverseMarbury, establishing the impotence of the judiciary, while leaving the Court no obvious avenue to respond.

Polls show that large majorities of the public and both major parties want the President to comply with court orders. Would defying a lone district judge carry the same political cost as defying the Supreme Court? Could creative contempt sanctions ultimately persuade the administration to appeal? Or might higher courts craft novel procedural theories for intervening in this extraordinary situation?

There is no way to know. But this scenario deserves more attention than it has received.

Nino's Paradox

JB

I have posted a draft of my latest article,Nino's Paradox, on SSRN. Here is the abstract:

This essay explains how lawyers and judges manipulate the distinction between changes in facts and changes in values when they interpret the Constitution. This rhetorical manipulation allows them to portray changes in social values merely as changes in facts.

Manipulating the distinction between facts and values serves several important ideological functions in American constitutional law. First, it helps make changes in constitutional values between the past and the present disappear and helps preserve the belief that we still apply the Framers’ values today. Second, it downplays or disguises the fact that changes in constitutional interpretation are often the result of social conflicts and struggles over social values outside of the Article V amendment process. Third, it helps preserve the appearance (if not the reality) of judicial neutrality in current constitutional conflicts, because judges are required to apply the same law to changing facts. Fourth, it helps preserve the appearance (if not the reality) that in the face of constant social and technological change judges can just apply the law without making any new and controversial value choices.

Because technology, social practices, and social values co-evolve, it is often not possible to maintain a firm distinction between changes in facts and changes in values. Lawyers and judges often describe constitutional purposes and rights at different levels of generality to disguise this fact and to make the Constitution better cohere with contemporary values—and with their own values. In addition, applying the constitutional text in new technological circumstances may upset the balance of competing normative assumptions that produced the constitutional text in the first place. As a result, technological change often alters the balance of constitutional values the law protects and even the nature of the rights and powers the Constitution guarantees. In sum, because technology, social practices, and social values co-evolve, we are all living constitutionalists now, whether we are willing to recognize it or not.

The Mystery of Neil Gorsuch

Andrew Koppelman

Chilling effects, Trump’s Anti-DEI Executive Orders, and the Role of the Courts (or why the Fourth Circuit Decision in National Association of Diversity Officers v. Trump is wrong)

Guest Blogger

Genevieve Lakier

At this point in the Trump presidency,it is quite clear that a central way in which the administration wields poweris by threatening those who speak and associate in ways that it dislikes witheconomic or legal harm if they do not stop. These threats and promises ofpayback are obviously intended to ensure compliance with the President’sideological agenda; or, at least, to ensure that those who oppose that agenda shutup. They pose, as such, a serious threat to the First Amendment. After all, the core idea underlying the modern FirstAmendment is that the government may not as Justice Jackson put it inWestVirginia v. Barnette, “coerce uniformity of sentiment in support of [an]end [it believes to be] essential”; that in this democratic state, “[a]uthorityis… to be controlled by public opinion, not public opinion by authority.” Atthe same time, however, courts—particularly in recent decades—have recognized arather expansive right to “freedom of government speech” (to useJudgePosner’s useful phrase).They have recognized that government officials have broad freedom not only toexpress their point of view on contested matters of public concern but tocriticize privatecitizens when they expressopposing views and to cajole them into better behavior. The central questionthat courts must answer then, when deciding when and which of theadministration’s threats violate the First Amendment, is whether those threats workto coerce silence, or merely speak.

Birthright Citizenship and the Rosenbergs

Gerard N. Magliocca

Ethel and Julius Rosenberg had two children, both born in New York City. When their children were less than ten, the Rosenbergs were convicted of and executed for espionage on behalf of the Soviet Union.

Under the "allegiance" theory of birth citizenship, it seems clear that David and Robert Rosenberg (who are both still living) are not citizens of the United States. Their parents gave, in the clearest formal sense possible, their allegiance to a foreign power. And they did so in a way far worse than any illegal alien. 

Yet David and Robert Rosenberg are American citizens, and nobody to my knowledge has questioned that. Maybe that will change. If not, I'd like to know why the "allegiance" principle does not cover them.    

How to combat social media platform power

JB

Following Donald Trump's election in 2024, the owners of the major tech platformsbent the knee to Trump. Not only did they hope that Trump would make them richer at home, they also wanted Trump to use American power to help them combat regulation in the E.U. Meanwhile, Elon Musk, the owner of X, poured over250 million dollars into Trump's 2024 campaign and used his platform to promote MAGA causes. Trump, in turn, let Musk loose to wreak havoc on the federal government.

What, if anything, should citizens do about this new form of collusion between some of the most powerful private actors on the planet and the U.S. Government?

Comparative Reflections on Mahmoud Khalil's Case

Mark Tushnet

The statute invoked in Mahmoud Khalil’s case brings to mind casesfrom other jurisdictions. That statute provides (in the part relevant here)that deportation is permissible if “the Secretary of State personallydetermines that the alien’s presence would compromise a compelling UnitedStates foreign policy interest.” Is such a determination conclusive? Or may itbe reviewed under a presumably quite generous standard of reasonableness (thatis, was it reasonable for the Secretary of State to conclude that Khalil’spresence would compromise a compelling foreign policy interest, with “compellingness”perhaps subject to a similar generous reasonableness standard)? 

During World War II the British government detained RobertLiversidge under a statute authorizing detention if the Home Secretary had “reasonablecause” to believe that a person had “hostile associations.” The House of Lordsheld that the statute required only that the Home Secretary subjectivelybelieve that there was reasonable cause (Liversidge v. Anderson).A famous dissenting opinion by Lord Atkins would have held that the HomeSecretary’s belief had to be objectively reasonable. I believe that theconsensus among British scholars who have discussed the case is that LordAtkins’s position was correct. 

In 1987 Singapore detained a number of activists inconnection with what’s known as the Marxist conspiracy. The applicable statuteprovided for detention “if the President is satisfied with respect to anyperson that, with a view to preventing that person from acting in any mannerprejudicial to the security of Singapore ..., it is necessary to do so.” Relyingin part on Lord Atkin’s dissent inLiversidge,the Court ofAppeal held that under the statute it was insufficient that the President wassubjectively satisfied, etc.; rather, an “objective” test (something like “woulda reasonable person conclude that detention is necessary to prevent he detainedperson from acting in a manner prejudicial, etc.”) had to be applied (ChngSuan Tze v. Minister of Home Affairs). 

That wasn’t the end of the story, though. The Court ofAppeal decision was announced on December 8. By the end of January Singapore’sConstitution and Internal Security Act had been amended to make it clear thatdetention could indeed be based upon the President’s subjective satisfaction. Ibelieve that the consensus among scholars who have discussed the case is thatthe episode taken as a whole doesn’t reflect well on Singapore’s adherence tothe rule of law. 

Is the lesson from these cases that the US courts willprobably find Khalil’s deportation legally supportable—and that the judgment ofhistory is likely to be that such a decision was a mistake? (I once wrote aboutthe law of emergency powers in the United States that we did indeed learn fromour mistakes by not making the same mistakes again—instead we made newmistakes.)

How to Bungle a Budget

David Super

     Congress yesterdayenacted a continuing resolution (CR) to fund the federal government through thesix-plus months remaining in this fiscal year. The measure cleared the House 217-213, essentially on party lines (withone Member on each side voting against their parties). It passed the Senate 54-46, with two senatorsthat caucus with Democrats voting “yes” and one Republican voting “no”. To reach the Senate floor, however, it neededeight Democratic votes on a procedural motion and received ten. 

    Crucial was SenateMinority Leader Chuck Schumer’s announcement that he would support theprocedural motion. House Democrats andprogressive activists have fiercely condemned him since then. This post analyzes the Democrats’ actionsrelating to the CR. It finds thatSenator Schumer made the correct move at the end in allowing the CR to pass butthat he and other congressional Democrats badly mishandled the process leadingup to that point. The criticism of himis misinformed, but leadership’s ill-considered rhetoric contributed to thatmisinformation.

A Title VI Demand Letter That Itself Violates Title VI (and the Constitution)

David Pozen

By Kate Andrias, Jessica Bulman-Pozen,Jamal Greene, Olatunde Johnson,Jeremy Kessler, Gillian Metzger, and David Pozen

On Thursday, the president ofColumbia University received a remarkableletterfrom the General Services Administration, the Department of Health and HumanServices, and the Department of Education. The letter states that theuniversity must meet numerous requirements by March 20, 2025, “as aprecondition for formal negotiations regarding Columbia University’s continuedfinancial relationship with the United States government.” These requirementsinclude changes to student disciplinary policies and procedures; changes torules on university governance, campus security, and campus life; placing theMiddle Eastern, South Asian, and African Studies department “under academicreceivership”; and “comprehensive” reform of admissions to various schoolswithin the university.

As scholars of constitutional law,administrative law, and antidiscrimination law who teach at Columbia, we feelcompelled to point out some of the most glaring legal problems with thisletter.

Sondheim and the N word

Andrew Koppelman

John Wilkes Booth was a racist murderer, but that apparently wasn’t the worst thing about him. The worst thing was that he used “the N-word.”

Isn’t that a bizarre thing to say? Not too bizarre, evidently, for the social media campaign that pressured a Northwestern University theater group into cancelling its production of Stephen Sondheim's classic musical “Assassins.”

I explain in anew column at The Hill.

Another Angle to Birth Citizenship--Follow-Up

Gerard N. Magliocca

I've looked at the Tudor statutes that Blackstone discussed in connection with "Egyptians." The last of these laws, which was still on the books when he wrote theCommentaries, dates from 1562. This 1562 Act confirms that children born in Britain to Roma people were considered subjects of the Crown even though their parents were not allowed to live there.

The statute begins by observing that there was some "scruple and doubt" about whether previous laws punishing "Egyptians" applied to "persons born within this realm" in the same manner as "strangers, born and transported into this realm." The Act then says that while all "Egyptians" are felons, the law "shall not compel any person or persons born within the Queen's Dominions to depart out of this realm of England or Wales, but only to constrain and bind them and every of them to leave their said naughty and idle life and company and to place themselves in some honest service, or to exercise themselves at home with their parents or elsewhere honestly in some lawful work trade or occupation." (I've modernized the spellings.)

Three points. First, there was a clear distinction between people born in Britain and those who were not (both in the preface of the Act and in its conclusion). Second, those Roma born in Britain were subject to the same anti-vagrancy or vagabond crimes that applied to other native-born subjects. (As confirmed by a 1597 statute that Blackstone did not discuss.)

Third, neither Blackstone nor anyone else I can identify ever said that "Egyptians" born in Britain were not subjects of the Crown because their parents could not legally live in Britain. Surely someone would have said that in the two centuries between the 1562 Act and theCommentariesif that were true.      

Another Angle on Birthright Citizenship

Gerard N. Magliocca

When Andrew Johnson vetoed the Civil Rights Act of 1866, one of his reasons was that the Act would give birthright citizenship to "the people called gypsies." This concern was echoed in Congress. Senator Edgar Cowen of Pennsylvania asked whether the Act would confer citizenship on the children of "Gypsies born in this country?" Senator Lyman Trumbull responded: "Undoubtedly." 

Senator Cowan raised the same objection to the Fourteenth Amendment. He stated that "Gypsies" were a menace to Pennsylvania because they are people "who invade our borders, who owe to her no allegiance; who pretend to owe none" and "whose sole merit is a universal swindle." "[B]efore we assert broadly that everybody who shall be born in the United States shall be taken as a citizen of the United States, we ought to exclude others besides Indians not taxed, because I look upon Indians not taxed as much less dangerous and much less pestiferous to society than I look upon Gypsies." 

Again, the reply (this time by Senator John Conness of California) was that the Fourteenth Amendment would make these people citizens. He said that the "only invasion of Pennsylvania within my recollection was an invasion very much worse and more disastrous to the State, and more to be feared and more feared than that of Gypsies. It was an invasion of rebels, which this amendment, if I understand it aright, is intended to guard against and to prevent a recurrence of." "I have lived in the United States for many a year," Senator Conness added, "and really I have heard more about Gypsies within the last two or three months than I have heard before in my life."

What does this debate mean for the Citizenship Clause? The first point is that the claim that allegiance to the United States is required by the "subject to the jurisdiction" language is wrong. The Roma, then called Gypsies, were the quintessential stateless people owing allegiance to no nation. But their children born here were citizens under the Civil Rights Act and the Fourteenth Amendment. An objection was made against this result on this ground and was rejected at the time.

But wait . . . there's more. Blackstone explained in Book Four of theCommentariesthat at common law the Roma (whom he called "Egyptians, or gypsies") were not allowed to live in Britain. A statute of Henry VIII described them as "outlandish people" who have "committed many heinous felonies and robberies." Thus, "they are directed to avoid the realm, and not to return under pain of imprisonment, and forfeiture of their goods and chattels." A subsequent statute imposed a fine on anyone who brought them into the realm.Nevertheless, the children born in Britain to these illegal aliens were subjects of the Crown.

Most lawyers would have read Blackstone as part of their legal training and would have understood any references to "Gypsies" as having a special meaning. So should we.

Constitutional Symmetry: Symposium Response Part II

Guest Blogger

For the Balkinization symposium on Zachary Price, Constitutional Symmetry: Judging in a Divided Republic (Cambridge University Press, 2024).

Zachary S. Price

This is my second post responding to participants in thesymposium on my new bookConstitutionalSymmetry:  Judging in a Divided Republic.  I’ll respond here to the remaining fourreviewers and then offer some closing thoughts.

Constitutional Symmetry: Symposium Response Part I

Guest Blogger

Not Recommended

Ian Ayres

 A few days ago I received the following email:

Dear Professor Ian Ayres,

It's Jesse from FlyingEdu Hong Kong. We mainly provide services for students who are applying for future study programs.

Some of them are of outstanding performance, but they will need the authorities' recommendation to accomplish the application process. In this case, we wish to connect you and our students. We would send you their CVs, arrange online communication to help you know them better, and you could choose to assign homework to help evaluate. In return for your assistance, handsome rewards would be given (about 10000usd/month). Also, the content of the recommendation letters can be further discussed with you.

Please feel free to reply or message me when you are available. Looking forward to further contact and cooperation with you.

Email：x@flyingedu.org

Regards,

Jesse

Senior Business Manager of FlyingEdu HongKong

Website:

http://www.flyingedu.org

Part of me was appalled by this concept. Paying substantial sums for recommendations gives the children of rich people yet another leg up. And might the recommendation fraudulently misinform the recipient? What’s next — paying for book blurbs? The whole endeavor seems super sketchy — including using a “.org” website at what screams out as a for-profit business.

A Thought about the Unitary Executive and the 22nd Amendment

Richard Primus

            A fair amount of theargument in favor of the unitary executive model of presidential power isrooted in an account of the Founding.  Iam skeptical of important parts of that account.  But the point I want to raise here is aboutthe impact, on theories of presidential power, of a later event in the makingof constitutional law.  That later eventis the adoption of the Twenty-Second Amendment, under which a twice-electedpresident cannot run for re-election.  Thepoint I want to raise is about what an enactment like the Twenty-SecondAmendment can tell us, not about any original vision of the presidency, butabout the vision of the presidency that prevailed in 1951, when the Amendmentwas adopted.  The further question I wantto raise goes like this: if the Constitution’s provisions about the presidencywere partly written in the middle of the twentieth century, what role shouldthe prevailing understanding of the presidency as it existed at that time playin an overall theory of presidential power? The chief bearing of this question, for present purposes, is that itmight induce skepticism about an important aspect of unitary executive theory:that is, the proposition that the president must be able to remove executiveofficers at will, and that Congress lacks the power to insulateexecutive-branch officials—or maybe even executive-branch personnelgenerally—from the presidential ax.

Unitary executive theory is heavily structural. To be sure, it comes with a (contestable) readingof the text of Article II and various claims about the way the Foundinggeneration understood executive power. But in the form that has been most potent within the judiciary, unitaryexecutive theory depends for its force on an idea about democraticaccountability: that the personnel of the executive branch must be accountableto the president, who in turn is accountable to the electorate. For the president to be held responsible forthe actions of executive officials, the thinking goes, he must be able to fireexecutive-branch personnel who fail to carry out their duties in the way hethinks proper. The public’s assurancethat the president will for the most part exercise his authority over theexecutive branch prudently, and in the public interest, lies in the public’sability to hold the president accountable at the polls. 

To be sure, a modicum of reality-checking would revealthat democratic elections are blunt mechanisms for holding executive-branchpersonnel to account. Presidentialelections turn on multiple factors, some of which would be beyond the controlof presidents even if presidents were able to direct all executive-branchaction with impeccable precision. Giventhe size of the electorate, the infrequency of elections, and the dizzyingarray of reasons why people vote the way they do, the chances that anyparticular decision a president makes about firing or retaining a subordinatewill play a significant role in a re-election campaign are rather small. Still, the basic idea that elections are amechanism of accountability has something to it. And one of the chief reasons that presidents(and many other officials) are thought trustworthy to exercise the powers ofoffice is that they can be turned out of office if they use those powerspoorly.

The Twenty-Second Amendment puts a major dent in thatidea. It means that the President of theUnited States will frequently be electorally unaccountable. If you cannot run for re-election, the voterscannot police your behavior by threatening to refuse to return you tooffice. To be sure, presidentsineligible to run for re-election might have other incentives to stay popularwith the electorate: popularity might help them get cooperation from Congress,and an unpopular president might damage his party’s electoral fortunes evenafter he is out of the game, and so on. But it would be hard to say that the elimination of the straightforwardelectoral check makes no significant difference in the degree to which apresident is democratically accountable. And once we recognize that the Twenty-Second Amendment makes presidentsless democratically accountable than they previously were, we should ask whatassumptions about the presidency might have helped the Americans who supportedthat Amendment reach the view, all things considered, that it was safe to vestthe considerable powers of the presidency in someone who be electorallyunaccountable much of the time.

I make no strong claim about the answer. But it is worth noting that the presidency thedrafters and ratifiers of the Twenty-Second Amendment knew was not thepresidency of unitary executive theory. Hewas enormously powerful: the Leader of the Free World, with access to a (smallbut terrifying) stock of nuclear weaponry. But he did not have unlimited freedom to direct the bureaucracy, orchoose the personnel, of the modern administrative state. A dozen years before Congress proposed theTwenty-Second Amendment, the Supreme Court decidedHumphrey’s Executor v. United States, holding that Congress had theauthority to constrain the president’s latitude to dismiss administrativecommissioners and, more broadly, federal officials whose duties could bedescribed as other than “purely executive.” One year before proposing the Twenty-Second Amendment, Congress passedthe Administrative Procedure Act, whose rules channel and constrain theexercises of bureaucratic power, including a great deal of power exercised bypeople appointed by or answerable to the president. In short, the presidency that the framers andratifiers of the Twenty-Second Amendment contemplated—and whose electoralaccountability they were willing to compromise—was a president whose freedom ofaction was importantly constrainable by Congress, including through themechanism of insulating federal officers from at-will removal.

I’m not claiming that the Twenty-Second Amendmentwould not have been adopted if the constitutional law of the mid-twentiethcentury had conformed to the unitary-executive model that later gained so manyadherents. How post-war Americans mightor might not have thought differently about the presidency if this or thatfeature of the office had been different then is a question on which proof isessentially impossible. In the age oftotalitarian dictators, maybe the fear of a president-for-life would have beenstrong enough to inspire a constitutional term limit, and the concomitant lossof electoral accountability during a second term, even if the president had hadthe power that unitary executive theory would give him. Or maybe, in that same age of totalitariandictators, the successful movement for a constitutional amendment limitingpresidential terms would also have been a successful movement for aconstitutional amendment disestablishing a unitary-executive model of thepresidency, had that model been operative at the time. It’s impossible to know. 

But two propositions seem clear. First, a theory of presidential power thatrests in any significant part on ideas about what the Constitution-makerspresumed about the office needs to take account of the presumptions thatoperated for the Constitution-makers of 1947-51 and not just those of 1787-88. Second, the presidency of 1947-51 was not thepresidency of unitary-executive theory. Indeed, the Constitution-makers of 1947-51 restructured the office in away that has meant that a great deal of the time, the president is not anofficer for whom the mechanism of democratic accountability functions in theway that the theory standardly presumes. (Or more precisely, the president is an officer for whom that mechanism,which never functions more than bluntly in the real world, does not even functionas a matter of ideal theory.) Perhapsthat matters.

How Important Is Presidential Immunity?

Andrew Coan

When the Supreme Court decidedTrump v. United States last July, critics warned of dire consequences for the U.S. constitutional order. Are those chickens now coming home to roost? Either way, might the decision pose another large and looming threat to the rule of law? These questions obviously require speculation, but I want to suggest four reasons for answering both in the negative. The argument below is exploratory, rather than definitive, and some of its elements are familiar. But I have not seen anyone pull the threads together in quite this way. Points 2 and 4 seem particularly under-appreciated. If the argument is correct, presidential immunity is largely a distraction. We have biggerconstitutional problems to worry about. 

1. Most basically, it is easy to say that no one is or should be above the law. But it is quite complex to apply this principle to the official conduct of the President, who is plainly granted constitutional power to take actions that ordinary people are not. Congress can certainly regulate this power to some extent, including through criminal prohibition. But to what extent, precisely? Could Barack Obama have been prosecuted for ordering a drone strike on U.S. citizenAnwar al-Awlaki in Yemen? The answers are quite hazy as a matter of text, history, and pre-Trump precedent. This complexity was candidly acknowledged by special counsel Jack Smith’s lawyer Michael Dreeben in hisbriefs and oral argument. It also forms the foundation of Justice Barrett’sTrump concurrence, which as many commentators have noted, is much more persuasive than the Chief Justice’s majority opinion. In my view, Barrett fails to show that the conduct at issue inTrump exceeds Congress’s power to regulate the presidency. But she makes a very persuasive case that this is a complex question of overlapping constitutional powers, rather than a simple or one-sided question of bedrock principle as the dissents and many critics contend. 

2. There are strong reasons to doubt the practical importance of criminal prosecution as a check on the abuse of presidential power. Before Donald Trump, there had never been a single prosecution of this kind in U.S. history. Long-standing policy and the president’s control of the executive branch combine to foreclose any realistic possibility of a sitting president being prosecuted. And many practical and political considerations have always made the prospect of post-presidency prosecutions extremely remote and unlikely to succeed: 

• the possibility that a president will be reelected or succeeded by a political ally, who quashes the investigation/prosecution or issues a pardon;
• the possibility that a hostile successor will be loath to pursue investigations/prosecutions that might be perceived as a political witch hunt;
• the blizzard of official authority and other defenses a president might raise, even short of full immunity;
• the longstanding presumption against reading general statutory prohibitions as applying to the president;
• the possibility that presidential offenses will be successfully concealed;
• the elderliness of many presidents at the end of their terms.

Emerging Outlines of an Executive Power Grab

David Super

     One month into thenew administration, the typhoon of news stories about radical, often unprecedented,executive actions is dizzying. Daily, sometimeseven hourly, we hear of new, aggressive actions posing fundamental challengesto our constitutional order each rivaling President Truman’s seizure of thesteel industry or President Nixon’s sweeping impoundments of appropriatedfunds. 

    Everyone can seethat something dramatic is happening, but for many a clear picture of the newAdministration’s plans may be elusive. This is an attempt to synthesize the Administration’s actions into sixprinciples. The Administration will nodoubt continue to elaborate on each of these, but the basic structure guiding thisattempted revolution now seems fairly clear.

John Bingham on Monsters and Natural-Born Fools

Gerard N. Magliocca

From a speech he gave on October 8, 1867:

[T]hey framed your matchless Constitution of Government at Philadelphia, known as the Constitution of the United States.— The word white is not there. The words "natural-born citizen" are there, and the man is a natural-born fool who does not understand that the term "natural-born citizen" implies that citizenship is a birthright. It comes with a man into the world. He has a right to citizenship, no matter what his complexion, upon the spot in which he had his origin; and the man who denies it to him, or attempts to withhold it from him, is simply a monster. When he comes to you with his nostrums you ought to herald his approach with the cry of the old cheating peddler: "This is the genuine old Doctor Jacob Townsend's sarsaparilla." - [Laughter.] 

UPDATE: Dr. Jacob Townsend's sarsaparilla was a popular "medicine" with many imitators.

Symmetry and Substance

Guest Blogger

Lost in Translation: "Constitutional Symmetry" and the Challenge of Polarized Court Coverage

Guest Blogger

For the Balkinization symposium on Zachary Price, Constitutional Symmetry: Judging in a Divided Republic (Cambridge University Press, 2024).

Stephanie Barclay

In his ambitious new book,ConstitutionalSymmetry: Judging in a Divided Republic, Zachary Price tackles one of themost pressing challenges facing American constitutional democracy: how courtscan effectively adjudicate politically charged cases in an era of intensepolarization. Price presents a frameworkfor judicial decision-making that aims to reduce the political temperaturewhile maintaining the legitimacy of constitutional interpretation. Price's coreargument is that courts should strive for “constitutional symmetry” by applyingconsistent interpretive principles across ideologically different cases and byactively seeking to frame their decisions in ways that acknowledge and respectcompeting viewpoints. This approach, he contends, can help preventconstitutional law from becoming merely another battlefield in America'sculture wars. The book points to illustrative examples of how courts havealternatively succeeded or failed at achieving this balance throughout Americanhistory.

One of the book's greatest strengths is itsdetailed historical analysis of how courts have navigated politically chargedcases in previous eras of intense polarization. Price draws fascinatingparallels between contemporary challenges and similar moments in Americanhistory, from the early Republic through the Civil War era and into thetwentieth century. This historical perspective helps readers understand thatwhile our current political divisions may feel unprecedented, the judiciary haslong grappled with similar challenges.

Who Is The Audience For This Book?

Guest Blogger

For the Balkinization symposium on Zachary Price, Constitutional Symmetry: Judging in a Divided Republic (Cambridge University Press, 2024).     

 Sanford Levinson

         InConstitutionalSymmetry: Judging in a Divided Republic,Zachary Price captures the sense that I suspect that many of us feel aboutthe current reality of politics in the United States. In particular, he focuses on the undoubtedfact that the polity is suffering from a kind of polarization that rationallyleads many—perhaps most—thoughtful observers to an increasing sense ofhopelessness about the ability of those purportedly “leading” the country to confrontthe pressing challenges facing us. Someof these, such as climate change, are potentially existential. And, of course, the election of apathological lying narcissistic grifter as President does not help. As an earlier theorist of politics once asked,“What is to be done?” We know whatLenin’s answer was, and few of us are really happy to follow his model. But the question remains all too powerful. 

         ProfessorPrice, perhaps reflecting his position as a professor of constitutional law, offerswhat to many might seem a peculiar answer to the question. That is, he turns away from my own obsessionwith constitutional reform, which to most people I know seems too radical orelse simply impossible. But he also paysno real attention to what one might do with regard to Congress and presidentswith regard to their own revealed deficiencies. Instead, he focuses exclusively on what the Supreme Court might do tohelp. I will turn presently to his overarchingsuggestion. It is worth noting, though,the degree to which he, like most legal academics, almost grotesquelyoveremphasizes the importance of the Supreme Court. Whether by offering excessive praise, as manyliberals did with regard to the so-called Warren Court, or perhaps justifiedcondemnation, as with the present majority, one might well be exaggerating theactual role of the Court.

AI, Privacy, and the Politics of Accountability Part 2: Privacy Harm in the AI Economy

Guest Blogger

For the Balkinization Symposium on Ignacio Cofone, The Privacy Fallacy: Harm and Power in the Information Economy Cambridge University Press (2023).

Ignacio Cofone

[This first part of this response appeared yesterday as “AI, Privacy,and the Politics of Accountability Part 1: Post-traditionalist Privacy for AI”] 

Privacy Harmis Systemic Because Privacy is Relational

Systemic harms relate to power asymmetries. Solow-Niedermanemphasizes the structural power imbalances inherent in the information economy,a point echoed by Shvartzshnaider when discussing the opacity of data flows andby Bietti when identifying surveillance as infrastructural. AI intensifiesthese dynamics by enabling large-scale data aggregation and analysis that growpower over those whose data is held. Governance frameworks must account forthese entrenched imbalances, as failure to do so risks perpetuating harmsmasked by claims of neutrality in AI.

For example, AI-powered credit scoring systems have been shown todisproportionately deny loans to minority applicants, even when data on race isexcluded. This occurs through inferences such as those drawn from zip codes andpurchasing patterns. Guggenberger correctly indicated that “the differencebetween product liability for cars and data lies in the type of harm.”Products’ liability harm might be systematic, but it is not systemic. Shifting responsibilityfrom individuals whose data is being processed (where consent provisions placeit) to entities that process it responds to critiques that account for power. Doingso requires advocating for governance models that recognize the systemic natureof AI-driven harms.

"Subject to the Jurisdiction" Means "Municipal Jurisdiction"

Gerard N. Magliocca

My birthright citizenshiparticle from 2008 discusses the Senate Judiciary Committee's 1870 Report about the Fourteenth Amendment's effect on the Indian Tribes. The Committee was asked (among other things) whether the Fourteenth Amendment made tribal members citizens. Its report contains the first construction of the "subject to the jurisdiction" language in Section One.

The Judiciary Committee stated that "it is manifest that Congress has never regarded the Indian tribes as subject to the municipal jurisdiction of the United States." Moreover, "an act of Congress which should assume to treat the members of a tribe as subject to the municipal jurisdiction of the United States would be unconstitutional and void." Accordingly, the Committee concluded that "the Indians, in tribal condition, have never been subject to the jurisdiction of the United States in the sense in which the termjurisdictionis employed in the fourteenth amendment to the Constitution." 

Thus, the first construction of the relevant language (two years after ratification) said jurisdiction meant "municipal jurisdiction." What is municipal jurisdiction? The legal authority to regulate, which is also the ordinary meaning of jurisdiction. The alternative suggestion put forth by some scholars that "subject to the jurisdiction" means "allegiance" finds no support here. 

AI, Privacy, and the Politics of Accountability Part 1: Post-traditionalist Privacy for AI

Guest Blogger

For the Balkinization Symposium on Ignacio Cofone, The Privacy Fallacy: Harm and Power in the Information Economy Cambridge University Press (2023).

Ignacio Cofone

Introduction

I’m very grateful to the contributors of this Balkinizationsymposium for their sharp analyses ofThePrivacy Fallacy—as I am to JackBalkin for putting the symposium together. The comments in the symposiumhighlight key issues (and many challenges) in regulating the informationeconomy and, particularly, in preventing and remedying harms in the context of dataand AI. I would like to structure this response by highlighting two recurring themesacross the reviews. The first theme, examined in this entry, is the limits oftraditional consent-based and procedural frameworks to address the collective andinferential nature of privacy under AI. Most contributors highlighted thelimitations of these mechanisms, especially when AI is involved, and shared theargument that privacy law must shift toward frameworks that prioritizesubstantive protection—the question is which ones. The second theme, which allcommentators touched upon in one way or another and from different angles, isthe issue of defining the boundaries of privacy harm in the information economy,which is examined in an entry that will follow this one. Across both themes isthe issue of power.

Symmetry’s Domain II

Guest Blogger

For the Balkinization symposium on Zachary Price, Constitutional Symmetry: Judging in a Divided Republic (Cambridge University Press, 2024).

Mike Greve

Constitutional Symmetry isvintage Zach Price: judicious, learned, lawyerly, fair-minded, unfailinglyrespectful of differing opinions and commitments. The book is also admirablyclear about symmetry’s envisioned role in adjudication. It is to operate at a highlevel, as opposed to judicial maneuvers that toss opinionated bones now to thiscamp, now to the other. It should operate within the framework of a sometimes asymmetricConstitution and of the judges’ jurisprudential commitments. It is not a rulebut an ethic, an orientation, an all-else-equal preference.

I can’t see anything wrong withthat, and I commend Zach for showing, in many thoughtful chapters, what constitutionalsymmetry might imply and how it might work in highly contested areas of law andpublic debate. I come, then, not to oppose but to sow confusion, or at least toadmit to my own.

Symmetry’s Domain

Guest Blogger

For the Balkinization symposium on Zachary Price, Constitutional Symmetry: Judging in a Divided Republic (Cambridge University Press, 2024).

Jeffrey A. Pojanowski

            It is apleasure to be able to contribute to this symposium on Professor ZacharyPrice’s bookConstitutional Symmetry: Judging in aDivided Republic,which deserves broad and deep and engagement. Everyone reading this symposiumshould read this book.

           First, Iwant to comment on the book’s general virtues before focusing on more discretematters. There is a certain pleasure in reading a work whose style embodies itsargument. To use very different examples, Nietzsche’s and Kant’s very differentapproaches to writing philosophy mirror what they think philosophy should be. Wesee something like that here. Price’s thesis is that, in polarized times, legaldoctrines should reflect reasoned engagement, compromise, and fairness acrossideological divides. His scholarship practices what it preaches. At a timewhere public discourse and scholarship veers towards the millenarian orapocalyptic, Price’s book is refreshingly measured. Although the book isanimated by a crisis, reading it is like taking a good, long walk with a wisefriend, not doom-scrolling. He engages with legal doctrine and the scholarlyliterature in a fair, thoughtful fashion that only strengthens the force of hisbroader argument.

           The book’sthesis is also ambitiousand restrained. Price offers a grand theory forconstitutional adjudication today. He argues that constitutional symmetry findsjustification on three grounds: an updated and improved version Ely’s politicalprocess theory; a moral reading of the judicial role;and originalmethods of interpretation. (Price’s argument for symmetry at the level ofdoctrine recapitulates at the level of justification; there are many rooms inhis theoretical house.) It also has wide-ranging applications: the FirstAmendment, separation of powers, Equal Protection, the Second Amendment,fundamental rights, and the law of democracy all get treatment here.

           At the sametime, Price avoids the perils of cosmic constitutional theory. He is not hereto tell everyone to whether to be an originalist or a living constitutionalist.Rather, he makes the more modest argument that whenever your preferred methodof interpretation has play in the joints or requires implementing doctrines,you should resolve those indeterminacies or build those structures with an eyetoward symmetry. The spread of his theory is total, but it is not totalizing.Thus, living constitutionalists should give the aims of symmetry a moredecisive role when considering contemporary public values. When originalists findthemselves in the “construction zone,” they should prioritize symmetry ratherthan, say, popular sovereignty or a presumption of liberty.

The Subtle Vices of the Virtue of Symmetry

Guest Blogger

For the Balkinization symposium on Zachary Price, Constitutional Symmetry: Judging in a Divided Republic (Cambridge University Press, 2024).

William D. Araiza

Zachary Price has writtenabig and important book. It’s big in both the sweep of its coverage and itsaspirations. Addressing a wide variety of constitutional and public lawsubject-areas, it aspires to provide a new criterion for judicialdecision-making that he argues will do nothing less than mitigate the legitimacycrisis facing the Supreme Court. (To his great credit, he does not overclaim byarguing that his solution will completely solve that crisis. His modesty inthat and other regards is one of the book’s many virtues.) And while hisanalysis is sophisticated, careful, and thorough, his main thesis isdisarmingly straightforward: the Supreme Court, he argues, should consider and,to the extent possible, accord at least some weight to whether its analysis ofa given issue will equally—“symmetrically”—impact both sides of today’spartisan divides. This is an important idea that deserves to be considered.Nevertheless, despite these undeniable virtues, some subtle vices, or at leastunresolved ambiguities, lurk within it.

Symmetry and Constitutional Adjudication

Guest Blogger

For the Balkinization symposium on Zachary Price, Constitutional Symmetry: Judging in a Divided Republic (Cambridge University Press, 2024). 

H. Jefferson Powell

Thatthe hyperpolarization of American politics poses serious problems for Americanconstitutional law is undeniable. No oneargues that constitutional law – and the judges who administer its central modeof enforcement – should be partisan in a crude or conscious sense, the tool ofeither liberal or conservative political causes. But with depressing regularity, the resultsof constitutional adjudication seem to map neatly onto the politicalpreferences of judges, most prominently those of the justices of the UnitedStates Supreme Court. It’s natural torespond by asking or demanding that the judges avoid or ignore the politicaldivisions that separate the rest of us. 

Inhis bold, fascinating new bookConstitutional Symmetry: Judging in a DividedRepublic, Zachary S. Price offers the startling suggestion that the courtsaddress the problems posed by political polarization by embracing it. Rather than pretending that constitutionaldecisions have no political salience that tracks the Republic’s overtly partisandisagreements, Professor Price argues that judges should take account of thosedisagreements by crafting rules of constitutional law that confer benefits onboth sides of the liberal/conservative chasm, not as a matter of outcomes(“yesterday we gave the Democrats a victory, today’s decision has to reward theGOP”) but of articulating and acting on principles that offer equivalentprotections to both sides.

Balkinization Symposium on Zachary Price, Constitutional Symmetry

JB

This week at Balkinization we are hosting a symposium on Zachary Price's new book,Constitutional Symmetry: Judging in a Divided Republic (Cambridge University Press, 2024).

We have assembled a terrific group of commentators, including Bill Araiza (Brooklyn), Stephanie Barclay (Georgetown), Mike Greve (George Mason), Sanford Levinson (Texas), Osagie Obasogie (Berkeley), Jeff Pojanowski (Notre Dame), and Jeff Powell (Duke).

At the conclusion, Zach will respond to the commentators.

A compromise on emergency abortions that red states should embrace

Andrew Koppelman

Institutional Vandalism

Guest Blogger

Jonathan Chausovsky

The vast uprising of critiques of thecurrent effort to dismantle the institutions of the United States Government ispervasive and important. Here, I suggestthat to do so we ought to take institutional theory into our account of theseevents. 

In his groundbreaking book from 1982,Building a New American State,Stephen Skowronek argued that the governing challenges of that day were linkedto the reform solutions of the past.[1]He configured politics as a set of entrenched interests seeking to preservetheir institutional structures, contesting with a rising set of reformers thatsought to displace them. His study of the Gilded Age and Progressive Eradepicted contests in three areas: civil service, army organization, andrailroad regulation. The outcome of these contests was not what any one sidesought. Rather, pathologies of the old were embedded within the reformsolutions that emerged. 

           We canlikewise place our current challenges in the context of realignment theory.Walter Dean Burnham built on V.O. Key Jr.’s seminal work on critical elementsto examine ongoing efforts at party composition and decomposition.[2]Burnham recognized that parties are coalitions, and that catastrophic eventscontributed to the restructuring of the party coalitions within the broaderpolitical universe. The shifts could be gradual, but were periodicallypunctuated by rapid disruption in response to catastrophe. Burnham was weddedto these upheavals occurring at fairly regular intervals of 32 to 36 years; buthis mechanism of generational change was always somewhat inadequate for themassive disruptions he sought to explain. However, a focus on partisancomposition and recomposition within our peculiar two-party system remains.With hindsight of 50 years since the end of the Great Society, we can easilyidentify the recomposition of the two political parties in the wake of theCivil Rights movement. This is evident in the abortion battle, the reemergenceof the religious right, along with massive inequality and concentration ofwealth aided by the corporate device.

Trump Isn’t Going to be Impeached. Let’s Not Pretend That’s OK.

Richard Primus

             Amidst the predictablechaos, cavalier illegality, and general destruction of the first weeks of thenew Trump Administration, it is unfortunately necessary to remember thefollowing fact: there are no foreseeable circumstances under which PresidentTrump could be removed from office through the impeachment process.  Nearly ten years ago, during his firstcampaign, he said that he could shoot someone in the middle of Fifth Avenue andhis supporters wouldn’t abandon him.  Hehasn’t yet actually shot someone in the middle of Fifth Avenue, but the idea hewas expressing has been pretty well borne out. Even after President Trump inspired a violent attack on Congress in thehopes of preventing the peaceful transfer of power to a legitimately electedpresident, his supporters mostly stayed with him, and four years later he waselected president again.  It’s hard tothink there is anything he could do that would bring significant numbers ofincumbent Republican officeholders to the conclusion that he had to beremoved.  That being the case,impeachment is essentially impossible, and everybody knows it.

           Nonetheless, it isimportant to continue to assert that certain conduct in which President Trumpengages is, on the merits, conduct that ought to be regarded as inconsistentwith the duties of the office in a fundamental enough way to requireimpeachment and removal. In other words,in full knowledge that the President will not in fact be impeached and removed,it is important to say, when it’s true, that he has done something for which heshould be impeached and removed, andfor which hewould be impeached andremoved in a properly functioning version of the American constitutionalsystem.

           Here I want to outlinea way of thinking about how and why President Trump could and should be removed,now, for two aspects of his relationship to the January 6 riot. The first, for which he was already impeachedonce, is his encouragement and support of the riot itself. The second is his pardoning and commuting thesentences of people convicted of criminal offenses for their participation inthe riot.

Critiquing Hadley Arkes’s not-so-mere Natural Law Theory

Andrew Koppelman

Law can’t be separatedfrom morality, because law is a kind of human conduct. So is compliance with the law. Morality constrains all of human conduct. So the idea of natural law, a set of moralconstraints binding on any possible legal system, has perennial appeal.

Hadley Arkes is a leadingcontemporary proponent of a revived natural law. His prominence is deserved. His work is smart and learned andentertaining. He writes with admirablemoral passion. He is urgently concernedthat persons be treated with dignity and respect, passionate about protectingthe weak and vulnerable, especially children, with an especial scorn forracism. But he is unpersuasive withrespect to some of the most important legal issues he takes up: the scope of the modern administrative state,antidiscrimination law, and abortion. Heoften ignores counterarguments. Morethan that, he neglects important aspects of the natural law tradition.

I explain in a short new essay in the Harvard Journal of Law& Public Policy Per Curiam.

Balkinization Symposium on Curtis A. Bradley, Historical Gloss and Foreign Affairs-- Collected Posts

JB

Here are the collected posts for our Balkinization symposium on Curtis A. Bradley,Historical Gloss and Foreign Affairs: Constitutional Authority in Practice (Harvard University Press, 2024).

1. Jack Balkin,Introduction to the Symposium

2. Elena Chachko,History and the Separation of Powers

3. Michael D. Ramsey,Historical Gloss and Originalism

4. Jean Galbraith,What Gloss Glosses Over

5. Jide Nzelibe,Justifying Constitutional Change in Foreign Affairs Outside of Article V 

6. Richard Fallon,Gloss and Practice: Reading Bradley Through the Lens of Hart and Dworkin 

7. Michael J. Gerhardt,Historical Gloss and the Erosion of Constitutional Safeguards

8. Kristen E. Eichensehr,Congress and the Challenges of Historical Gloss 

9. Julian Davis Mortenson,The Deep English Roots of Using the Custom and Tradition of Governmental Practice as a Source of Legal Meaning for Interpreting Written Constitutional Texts, or, A Lesson for Originalists Too

10. Curtis Bradley,Glossing the Foreign Affairs Constitution

Glossing the Foreign Affairs Constitution

Guest Blogger

Dred Scott, the Northwest Ordinance, and the Perils of Historical Memes

Guest Blogger

David S. Schwartz 

Amistaken characterization of historical fact can become a conventional wisdomthrough the same process that generates memes. When it seems too much troubleto go back to the primary source, it is natural to quote a reliable secondaryone, and repeat what may be an error. 

InDred Scott, Chief Justice Taney asserted that the first federal Congressin 1789 passed legislation “reviving” the Northwest Ordinance of 1787.[1]In fact, Congress did not do this, but instead “adapted” the NorthwestOrdinance to the Constitution’s new system of separated powers. Thisdistinction is more than semantic. The notion of a “revived” or “re-enacted” Ordinancewas an important premise in Taney’s argument that the Missouri Compromise wasunconstitutional. I explain his argument in detail,in a new article showing that Taney’s argumentagainst the Missouri Compromise sounded in limited enumeratedpowers—enumerationism—whereas the substantive due process argument was a meremakeweight tacked on at the end of this part of the ruling. 

Thispost focuses on the enumerationist argument, and the role played in it byTaney’s characterization of the 1789 Northwest Territories Act—a mischaracterizationthat is unthinkingly repeated by virtually all modern scholars.

Unlawful Funding Freeze Sows Chaos

David Super