Monday, December 22, 2014

More Debt Ceiling Strategizing for Democrats

-- Posted by Neil H. Buchanan

Last Tuesday, my Verdict column and my Dorf on Law post discussed the possibility that the Republicans will impeach President Obama next year, as part of a renewed standoff when the debt ceiling is reinstated in the Spring.  My central argument was that the Republicans, who have arguably been using the debt ceiling to set an "impeachment trap" for the President, might instead find themselves trapped inside their own illogic, inexorably moving toward impeachment even as the party's establishment tries to prove that the party can "govern responsibly" (in the now-standard phrasing) and thus earn the trust of voters in 2016.

As so often happens here on Dorf on Law, several readers offered thought-provoking responses on the Comments board for Tuesday's post.  Here, I want to discuss those comments, objections, and suggestions, because they have certainly helped me to think about this broad question more deeply and (I hope) more clearly.  Those comments raised three important issues:

1) Impeachment is Never Going to Happen

Perhaps my entire premise is incorrect, and the Republicans will simply never impeach Obama, no matter what he does.  After all, the party has correctly been blamed for the 2013 government shutdown, even though the most extreme members of Congress convinced themselves that they could "win" the shutdown.  (Some of them apparently still believe that the shutdown was a political win.)  If Republicans could not figure out a way to win a shutdown under Obama any more than they could win the shutdown under Clinton (which was, technically, two shutdowns), then they dare not imagine that they could impeach Obama without making him appear to be a sympathetic victim.  Clinton's popularity surged after he was impeached and tried.  Although the Republicans managed to win the ensuing election (sort of), they might not want to risk that again.

This very plausible argument raises two further thoughts.  First, it oddly resonates with my second Verdict column and Dorf on Law post last week.  There, I returned to an argument that I have made in various ways, which is that the Republicans' broad strategy over the last generation or so has been to undermine the legitimacy of the institutions of government -- to, in the words that I borrowed in my Thursday blog post, turn everything into a Putin-style "cynical farce" -- because the powers behind the conservative movement like it when there are no countervailing forces to prevent them from getting their way.

How does the unavailability of impeachment fit into that argument?  As one commenter noted, some conservatives have recently argued against prosecutions of the CIA torturers and their superiors who ordered the torture, on the basis that this would merely be "prosecuting policy differences," or something like that.  This means that there is no way to hold anyone in the opposite party accountable, no matter how lawless they have been, because attempts to enforce the law will be seen as cynical partisanship.

In the context of impeachment, that means that an important fail-safe in the Constitution has been neutered through misuse.  Although currently that might make the Repulbicans unhappy, because their own misuse of impeachment (and six years of constant talk about misusing it again) have made it arguably impossible for Republicans to take down Obama.

Even if that is true, however, it certainly means that any future Republican presidents would feel emboldened to do whatever they want, always knowing that they can say, "Hey, we never impeached Obama despite his tyrannical actions!"  More to the current point, they might want to take the opportunity now to deal a death blow to future uses of impeachment by giving it one last shot while Obama is in office.  I doubt that they are thinking about it consciously, or that they would be willing to put their 2016 nominee in the position of defending the impeachment to an angry electorate, but there is an arguable long-term purpose that even an unsuccessful impeachment could serve.

Still, I think that the more likely path to impeachment is the one that I described last week.  It is not that the Republican leadership could be convinced that an impeachment is a good Plan A, but instead that path dependence will take over in the midst of a debt ceiling battle.  What would happen if Republicans in Congress -- most of whom (even non-Tea Partiers) have publicly denounced increases in the debt ceiling -- finally refuse to blink, and Obama carries through on his announced belief that he would then have no choice but to start defaulting on legally required payments to federal obligees (veterans, Social Security recipients, schools, hospitals, Medicare providers, and so on)?  No matter whether Obama protects bond holders by prioritizing their interest payments, will it be irresistible for Republicans to impeach Obama for his lawlessness?  After all, he will have committed a constitutional violation by usurping Congress's spending power.

Overall, I have to say that I agree with the commenter that the Republicans will try very hard not to indulge their impeachment fantasies.  I am simply saying that this is exactly the kind of thing that can quickly take on a life of its own.  After all, the 2013 shutdown happened after months of assurances that the Republicans could never allow that to happen, and then it happened.  Impeachment is a bigger deal, of course, but the Republicans inside and outside of Congress have been building a case against Obama that would fit perfectly with the picture of the President failing to pay some people while honoring obligations to others.  He picks and chooses which laws to enforce, right?

2) No Matter What Republicans Do, Democrats Should Govern Responsibly

Another comment pushed back against my suggestion that Democrats should play political games in response to Republicans' political games.  I had argued that Democrats have allowed Republicans to have their cake and eat it, too, with Republicans mostly refusing to vote to prevent financial panic, knowing that Democrats will uniformly vote to do the right thing, joined by the bare minimum number of Republicans.

My idea was that Democrats should force Republicans actually to be the responsible party that they claim to be.  I will discuss the strategy that I described, and its alternatives, in my third point below.  But the threshold question is whether it is acceptable for Democrats to play politics with the nation's credit rating.  We want to believe that politicians are not merely in it to win the next election, so why would it be good for the Democrats to throw the dice on a possible political win when "crapping out" would mean financial and economic collapse?

I suppose that everyone has a threshold of idealism, below which they will not go.  I have always thought of myself as a cynical idealist, but here, I certainly think that it is more than acceptable for a political party to try to figure out a way to get the other political party to stop having it both ways.  Yes, that does raise the possibility of its own kind of path dependence, but having seen this farce played out multiple times over the past few years, it seems at least worth considering ways to put Republicans' feet to the fire.

Now, an alternative to my suggestion is simply to have Democrats act responsibly, and then to win elections by pointing out to the American people that the Republicans have been irresponsible.  But pointing out that the Republicans deliberately strangled the economy for the past six years and then ran against Obama on the economy was hardly an electoral winner for Democrats in 2014.  At this point, I do find it hard to imagine that there is a political dividend in simply allowing virtue to be its own reward.

In addition, we should remember that President Obama has been responsibly signing the "clean" debt ceiling bills that have eventually arrived on his desk, even though Republicans have mostly not voted for them, and even though the President could have made his own demands before signing such bills.  The question here is logically prior to that, asking whether the Democrats in Congress should force Republicans to prove that they can govern, before anything is sent to the President.

3) Winning the Politics is Tricky

Even for those who are still on my side in this discussion, another commenter pointed out that it is difficult to figure out how various strategies will play with the public.  My suggestion -- an offer by the Democrats to provide one vote for a clean debt ceiling increase in exchange for every two Republican votes -- would (as that commenter noted) open the Democrats to claims that they were being unfair to Republicans, forcing Republicans to do the heavy lifting rather than being equal partners.  After all, by design, my suggested strategy could result in 146 Republicans and 72 Democrats voting for the bill, which would be a clear majority of Republicans and a clear minority of Democrats.

As I noted in my reply on the comments board, I am not committed to any particular strategy.  For example, the Democrats could instead say, "If half of the Republicans will vote the right way, then more than half of us will do so, too, and that will guarantee passage."  That would probably look more "fair" to outside observers, and Democrats could even claim to be generous, by providing the tie-breaking vote.  But this strategy, too, is not really the point.  My idea is to have Democrats respond to Republicans' brinksmanship by refusing to be the reliable chumps who allow Republicans to fulminate about the evils of debt and then to run for re-election on a record of never having voted for a debt ceiling increase.

In response, my commenter suggested that I had missed an even bigger point, which is that the Democrats would risk losing the politics by playing politics in the first place.  Another commenter referenced the 80's movie "War Games," where a super-computer learned that the only way to win the game of thermonuclear war is not to play.  After all, I titled my post "How Will Democrats Play the Impeachment Trap Game?"  Maybe the right answer is not to play at all, both because of the risks to the country and because even a non-catastrophic result is not a guaranteed political winner.

Indeed, I criticized another writer last year for suggesting that the President should never blink during debt ceiling negotiations, and if the Republicans actually failed to act responsibly, then the President should simply allow default and "win the politics."  That struck me as a terrible idea, because it would have the President choosing to allow a default for political purposes (and, along the lines of the argument here, it might not even work politically).

The difference, as I noted above, is that we are now talking about what Democrats should do during the stare-down phase.  I think we all know that the Democrats would ultimately vote for a debt ceiling increase, but we also know that they have most definitely lost the politics thus far.  They are still painted as the party of profligacy, even while Republicans vote for spending increases and tax cuts that require additional debt.

In the end, I think my position here boils down to this: There is a lot of room between what the Democrats have done thus far, and what they could do to try to win the politics.  Being earnest and outraged has not worked.  Something else, even something that falls far short of actually risking accidental default, might be worth trying.  That might seem like a serious retreat from my original position, but at this point, I am simply hoping that someone can do something to get Republicans to stop winning by obstructing.

Friday, December 19, 2014

Talking About Abortion Part II

by Eric Segall

A few months ago I started writing an essay suggesting that women's rights organizations and other groups supporting the right of women to terminate their pregnancies should engage in civil disobedience. I was going to urge them to occupy state houses where anti-abortion legislation has passed or was being considered and to confront so called "abortion counselors" at family planning clinics with large numbers of counter-protestors. My motivation for the piece stemmed from desperation over the current state of abortion politics in America.

But the piece wouldn't hunt. I couldn't find the right words or reasons to advocate such a strong stance. My fear was that such measures would just further incense those opposed to abortion rights, leading to more laws and more violence.

So I started writing another piece about how both sides of the abortion debate should try hard to listen to and understand the other side’s arguments. I suggested we don’t need to live in a zero-sum world when it comes to abortion and that name calling and misleading labels do not advance the debate or the politics surrounding the debate. Although compromise and civility might be hard to achieve, I argued we should at least try to do better (on both sides).

I eventually published the piece on this blog and have since thought long and hard about both the final essay and the comments I received from trusted friends and colleagues before I finished the essay. I think there is something important to learn from the feedback I received.

One of my colleagues, who has been very supportive of my essay and op-ed writing even when he disagrees with my perspective, thought I should not publish the piece at all (he is, for lack of a better label, a pro-choice liberal). He said that “as someone who believes most things can be resolved in our society through deliberative, constructive dialogue, I have a small list of what I would call ‘intractable’ social conflicts that are not susceptible to honest dialogue. Abortion is on that list. Yes, everyone agrees we should talk, but you can’t talk if the parties are operating from a completely different set of facts ….”

Many of the comments that appeared on this blog after the essay was published echoed a similar theme.

Another friend, a conservative woman (but in favor of Roe) in her seventies, did not like the essay at all. She said: “I think your position is untenable. Most people either accept the need for abortion or are fundamentally opposed. I don’t think empathy and an open mind can be called up. I think respect for the laws and personal autonomy is what should be emphasized.”

A nationally known conservative said: “when I first picked up your essay, I was expecting that overturning Roe v. Wade would be one of your points on which everyone ought to be able to agree. That’s surely the key to working out this issue.” He also said that “if something like this is ever going to work, the reader ought not to be clear on where the author generally stands on the issue. Given the battle of semantics, that’s a difficult task for anyone to achieve. But no reader will come away from your piece thinking that you might be opposed to abortion.”

And, another colleague had this to say: “I agree that it would be helpful to have a more constructive/productive discussion between the two sides, but it’s hard to see how you don’t inevitably reach an impasse in a substantive discussion. At some level, it is hard to compromise when fundamental moral beliefs are at play, which is why the larger debate probably has to be about where we place decision-making power (vs. what the fundamentally “right” decision is). So maybe getting both sides to focus more on the process (vs. where that process should ultimately lead) might be a helpful way to move forward.”

These, and many other similar comments from other readers, suggest that maybe we need to stop trying to convince one another on the ultimate morality or not of terminating pregnancies and more on how we should structure the conversation as a matter of process. This is not inconsistent with the idea I expressed in my first essay that, maybe, just maybe, those who think abortion should be an almost absolute right (at least prior to viability or sentience) and those who think it should be almost always forbidden (except maybe in cases of rape, incest or when the life of the woman is threatened), can agree to disagree on the underlying merits but try to have constructive dialogue about who gets to decide and under what broad rules. I think I agree with my conservative friend that Roe and Casey may have to be scuttled before such a meaningful dialogue can take place.

 A nationally known intellectual figure suggested to me that most people who strongly oppose abortion do so on religious grounds and people can’t talk about religion. That may be true and may also be why abortion is so hard to talk about. So, perhaps the conversation does need to turn back to who gets to decide the question. If that is true, maybe the courts do need to step away, which will place ultimate and final responsibility with elected leaders.

Many of those in favor of abortion rights will label that “unilateral disarmament” but I am not so sure. If the courts do step away, those who favor women having the right to choose for themselves the morality or not of abortion may, in the long run, be pleasantly surprised by the results. But that, alas, is a discussion for another day.

Thursday, December 18, 2014

Playing With Scandals: Everything is a Cynical Farce

-- Posted by Neil H. Buchanan

Scheduling changes resulted in my writing two Verdict columns this week.  I discussed Tuesday's column in a post on Dorf on Law the same day. Turning from "impeachment traps" to torture, today's column compares the substance and the politics of the Senate's CIA torture report -- a scandal if ever there was one -- with what I have long called the "IRS non-scandal scandal."

The comparison is powerful and revealing, but precisely for that reason, it is also uncomfortable.  After all, even to compare the vicious atrocities revealed in the torture report to anything else, and certainly to anything as minor as the things that some low-level IRS employees did to some groups applying for 501(c)(4) status, risks diminishing the horrors of what the CIA did at the behest of the Bush/Cheney people.  This meant that, in order to make any meaningful comparisons, it was necessary to discuss things at a higher level of abstraction, to compare worst-case scenarios.

And the worst-case scenario in the IRS non-scandal scandal was, as I have always acknowledged, truly bad, if it had been true.  If there really were any credible evidence suggesting that the Obama Administration had orchestrated an effort to harm its political opponents by abusing the power of the IRS, that would be scandalous.  Happily, no such evidence has emerged.  Instead, the dead-enders have been reduced to saying, "There must be something going on.  We just need to keep digging."

Why are they so certain that something evil was afoot?  Apparently, they find it hard to believe that their opponents are not as cynical as they are.  (Dick Cheney himself said that the Obama people must have been using the IRS for political ends -- presumably because he could easily see himself doing the same thing.)  Because these people simply believe as a matter of deep commitment that something must be out there, the game is then to infer evil intent from every comment and action by the President.  Remember when Obama, in a State of the Union Speech, criticized the Citizens United decision?  Most people remember that moment because of Justice Alito's angry facial expression, caught on camera.  IRS scandal-mongers, by contrast, have insinuated that there is somehow a connection between Obama's comments and the IRS employees' actions.

Again, however, I concede in the column that this could have been a bad thing.  The people who worry about the IRS possibly being misused for political ends are not worrying about something that is inherently harmless.  They are simply refusing to give up the ghost on an investigation that has gone nowhere, and that shows no signs of ever leading anywhere.

By contrast, as I note, the CIA scandal is not a first step down a slippery slope, about which we must be vigilant in order to prevent real atrocities.  It is a case of real atrocities.

One idea that I mention briefly toward the end of the column, but which I do not develop in any detail, is the comparison between possible excuses for refusing to prosecute or investigate the CIA, but to go after the IRS with guns blazing.  Remember, in order even to compare the IRS non-scandal scandal with the CIA torture scandal, we had to "go meta," in order to find some way in which the two situations could be comparably bad.  Once we have done that, however, then we must also be willing to apply the same level of generality to the arguments for and against aggressive prosecution of wrongdoing.  If the argument is, "We would harm America by failing to understand the important public service that the CIA provides," then the argument could also be, "We are harming America by vilifying the IRS."

How is that damage done?  The one thing we know about tax collection is that it requires the consent of the governed.  It is essential not just to have taxation with representation (quick shout out to the residents of Washington, DC!), but people must generally comply with the laws in order for people to be willing to continue to comply with the laws.  Think of driving on a highway: If everyone can see that everyone else is generally complying with traffic laws, and that speeders are ticketed with some regularity, then pretty much everyone obeys the law.  If a time comes when people no longer think that is true, chaos ensues.

In the tax realm, this is not hypothetical.  One of the empirical puzzles that tax scholars have tried to explain is the relatively high rate of compliance with tax laws in the US.  From a certainty/severity criminal law standpoint, there should be much more cheating on taxes in this country.  Countries with low "tax morale," e.g. Greece and Italy, spend much more money trying to collect much less tax revenue, because everyone is cheating.

So, at a sufficiently high level of generality, one could make the argument that the future of America depends on a functioning government, and the government depends on revenue, and the ability to collect future revenues is threatened by politicians "looking backward" and attacking the IRS and its employees (and, hardly coincidentally, cutting its budget even as the IRS's legal responsibilities expand).  Attacking the CIA makes Americans less safe (an assertion that is obviously false)?  Well, attacking the IRS puts American democracy itself at risk!!

As I make clear in today's Verdict column, I do not believe the conclusion of that argument.  I explain the argument not because I believe that we should refrain from investigating and (where appropriate) punishing IRS employees, but because I believe that we should investigate and prosecute crimes at the CIA, wherever the evidence leads.  If the "look forward, not backward" argument from Obama is justified by apocalyptic fantasies about the consequences of holding people responsible, then we can invent apocalyptic fantasies to justify nearly any course of action.

Nevertheless, the Republicans continue to treat the IRS non-scandal scandal as if it is the worst thing that ever happened, while a bipartisan consensus has emerged that will prevent the CIA from receiving even one-tenth of the angry attention that the IRS has received.  Why?  The most obvious explanation, I think, is the ease with which Cold War-style fear mongering rolls off the tongues of American politicians.  Take a real bogeyman (the Soviet Union, or al Qaeda, or ISIL, or whatever) and use it to justify a no-holds-barred response.  Taxes are not really life-or-death, after all, whereas Cheney can spend an entire interview justifying torture by invoking 9/11.

There is, however, an additional factor in play.  As I have noted in some previous Dorf on Law posts (especially here and here), an ongoing theme of movement conservatism is to de-legitimize the institutions of government.  If everything can be portrayed as corrupt or ineffective, then the people will give up on the idea that the government can at least reduce the harms that the powerful inflict on everyone else.  That the IRS enforces the one part of the tax system that is still progressive makes it all the more enticing as a target of the Right, which thrives on the mythology of the lazy 47% and all that.

All of which made it especially poignant to read an op-ed in The New York Times last week.  Written by a British expert on Russian politics under Putin, the Times's tagline for the piece was: "The Kremlin’s strategy is to turn all politics into a cynical farce."  The author's comments include the following: "At the core of this strategy is the idea that there is no such thing as objective truth," and "Sadly, this mind-set resonates well in a post-Iraq and post-financial-crisis West increasingly skeptical about its own institutions, where reality-based discourse has already fractured into political partisanship."  Notwithstanding the false equivalence implicit the last sentence, the author describes well the net result of the "We create our own reality" version of politics practiced by the 21st century Republican Party.

The common thread, then, is that the CIA's actions must be defended, because doing so reinforces the notion that the government is lawless (and always will be), while the IRS must be attacked because it is essential for the cynics to make everyone believe that the government is out to get them.  The less trust we have in our institutions, the better for those who want to further pervert those institutions.

Wednesday, December 17, 2014

Informing the Reasonable Observer

By Michael Dorf

My latest Verdict column discusses the new SCOTUS case, Walker v. Texas Division, Sons of Confederate Veterans (TSCV). The case poses the question whether Texas violated the First Amendment when it refused to issue specialty license plates bearing the Conferedate battle flag as part of the logo. As I explain in the column, the outcome appears to turn on whether specialty plates are best conceived as government speech--in which case Texas wins--or private speech--in which case TSCV probably wins. I say "probably" because the state argues that even if the plates are private speech, its refusal to grant them is valid as viewpoint neutral. I explain in the column why I think that latter contention should (and probably will) be rejected.

I also explore another possibility: University of Miami law professor Caroline Mala Corbin's argument, in a 2008 NYU Law Review article, that there ought to be an intermediate category of "mixed" private-government speech. Although I find Professor Corbin's argument persuasive, there is a substantial possibility that the Court will not accept her suggestion. After all, neither party proposes the adoption of her mixed speech category. Moreover, the last time the Court addressed a case that could have been evaluated under a mixed-speech framework--in 2009 in Pleasant Grove City v. Summum---neither the majority nor any of the four concurrences considered the possibility (although Justice Breyer came close in his concurrence).

Assuming that the Court is committed to a strict dichotomy between government speech and private speech, how should the line between the two be drawn? The Summum case sheds only limited light on that question because Justice Alito, writing for the majority, thought that on the facts it was easy. He wrote:
There may be situations in which it is difficult to tell whether a government entity is speaking on its own behalf or is providing a forum for private speech, but this case does not present such a situation. Permanent monuments displayed on public property typically represent government speech.
Accordingly, in TSCV, the 5th Circuit looked to a concurrence by Justice Souter, in which he proposed the following test:
whether a reasonable and fully informed observer would understand the expression to be government speech, as distinct from private speech the government chooses to oblige.
There is a substantial body of academic work criticizing reasonable-person tests as loaded: Courts hypothesize a reasonable person as a means of rendering the judgment objective, but no actual person is in fact perspectiveless, and so the abstract reasonable person typically has implicit majoritarian characteristics: he is male, object feminists; he is white, object critical race scholars; etc.

I think there is a lot to the foregoing sorts of crticisms of the reasonable person test, but I nonetheless agree with Justice Souter and others (including Justice O'Connor, whose views on the Establishment Clause informed Justice Souter's proposed test in Summum) that a reasonable person test can sometimes be the best that the law can do. In response to the critiques, the usual approach is to incorporate some objective elements of the particular observer into the reasonable observer. How would a reasonable woman react? Or a reasonable non-Christian? Or a reasonable African American man? Etc.

Here I want to register my qualms with a different aspect of Justice Souter's test: the requirement that the reaonable observer be "fully informed." If the government's aim is to ensure that people do not attribute offensive or otherwise objectionable private speech to the government--and if most people would not be fully informed--then shouldn't the government be permitted to take account of actual less-than-fully-informed observers?

Before I address that question, I should note that this is not the only context in which the Court inquires about what a fully-informed observer would do. For example, in explaining why he was not recusing himself from a 2004 case involving Vice President Cheney despite having gone on a hunting trip together, Justice Scalia described the circumstances in detail. He then considered the possibility that he ought to recuse in light of how things looked. Quoting a recusal ruling by Chief Justice Rehnquist, Justice Scalia said: "It is well established that the recusal inquiry must be 'made from the perspective of a reasonable observer who is informed of all the surrounding facts and circumstances.'" Here too, we might ask, if the worry is the appearance of impropriety and most people are not fully informed, then why should it matter how things would appear to the people who are fully informed?

I think the answer in both contexts must be the same: The law should assume a fully informed observer because the cost of taking informers as they come, i.e., as ignorant, is too high. Government may not censor offensive speech on public property out of concern that some or even many people will mistakenly attribute the offensive messages to the government because doing so would be too great an infringement on free speech. Likewise (if one agrees with Justice Scalia on this point, as I do), asking whether judges appear biased to uninformed observers would result in an unmanageable number of recusals.

I would nonetheless quibble with the practice of merely asking how a fully-informed reasonable observer would view things. It seems to me that one might also ask whether available practicable steps have been taken to educate the public. Justice Scalia's opinion defending his non-recusal in the Cheney case qualifies as such a step.

By contrast, I think Summum was a harder case than Justice Alito thought, in part because the Court did not inquire into whether a disclaimer might have been adequate to fully inform the public that Pleasant Grove City's acceptance of Summum's monument did not constitute endorsement of its views (which are pretty awesome). The Summum Court still could have concluded that, due to limited space or for other reasons, acceptance of a monument amounted to government speech not subject to the First Amendment. However, given the important role that "more speech" plays in First Amendment doctrine, a test that takes account of fully informed observers would be more credible if the government made efforts to fully inform observers.

Tuesday, December 16, 2014

How Will Democrats Play the Impeachment Trap Game?

-- Posted by Neil H. Buchanan

Frequent readers of Dorf on Law know that Professor Dorf and I have written a long series of academic articles, Verdict columns, and blog posts about what the President would be constitutionally required to do if he is ever faced with a debt ceiling-related crisis.  As it happens, however, Republicans and Democrats alike -- most definitely including the White House -- have not adopted our approach.  As frustrating as that has been, it does have the liberating effect of allowing me to observe the political theater, knowing full well that everyone is ignoring us.  No responsibility, pure entertainment.  (Yes, the entertainment is sometimes more like a horror film, but that's still entertainment!)  It also makes it perversely interesting to speculate on what the parties might do, now that they are working within a box into which they have mistakenly placed themselves.

Since early 2013, I have been using the term "impeachment trap" to refer to the Republicans' strategy to use the debt ceiling law to force President Obama to commit an impeachable offense.  Professor Dorf and I have used the term "trilemma" to refer to the three unconstitutional choices that a President would face if the debt ceiling is ever too low to accommodate the borrowing required by the spending and taxing laws.  The constitutional authority to spend, tax, and borrow all belong to Congress, but Congress itself could make it necessary for the President to usurp at least one of those powers.

In my new Verdict column today, I turn the impeachment trap inside out, asking whether Republicans have created a trap for themselves, all but guaranteeing an impeachment drama next year -- precisely when the Republican leadership is trying to prove that they are good at something other than creating gridlock and dysfunction.  Here, I will describe why an impeachment battle seems quite possible, and then I will offer a few thoughts about how the Democrats might play this game.

The debt ceiling, which is currently suspended (for the second time, via the bizarre voodoo of Senator McConnell), will be reinstated on March 15 of next year.  Congress has just passed appropriations that run through September 30 (the end of the 2015 fiscal year), which guarantee that there will be a small deficit for the year.  Because the deficit is so small, Treasury's "extraordinary measures" could extend the drop-dead date well into the summer.  (Yes, extremely low deficits can still lead to a debt ceiling crisis, because the debt ceiling is a dollar amount, not a percentage of GDP.)

The big question, of course, is whether the Republicans will again create a to-the-last-second stare-down with President Obama over the debt ceiling.  They might choose not to.  Certainly, the party's leadership is hoping that there will be no drama next time around.  I will return to this question momentarily, but for now, we can ask what would happen if the debt ceiling is not increased.  The point of my Verdict column is that the Republicans will have made it all but impossible not to then impeach the President.

This is not merely because the President will have violated the Constitution in some way, but because he will have done so by "picking and choosing" which laws he wants to enforce.  He will have to choose one of the three prongs of the trilemma.  If he does what he says he will do (i.e., ignore Professor Dorf and me), he will have to start defaulting on the government's financial obligations.  But that is only the beginning.  Contrary to our strategy, the President's strategy (shared, again, by all the major players) then requires a daily burlesque of picking and choosing winners and losers.

Republicans have spent nearly the entire Obama presidency preparing for exactly that moment.  How could they resist the pressure to impeach the man who would be openly doing exactly what they accuse him of doing -- deciding which provisions of the law to enforce, and which to ignore?

Which brings us back to the Democrats.  It is always difficult to try to figure out what the Democrats will do, because they "never miss the opportunity to miss an opportunity" (a quote with a mysterious provenance).  And it is especially difficult to imagine them acting intelligently, because they have almost uniformly accepted the narrative that the 2014 mid-term election, which was solidly within the historical norms for such elections, was an unparalleled disaster.  Moreover, in the recent budget negotiations, they supported a bill that only funds Homeland Security for the next three months, setting up a late-winter opportunity for Republicans to make hay over "Obama's amnesty."  The Democrats seem forever hapless.

Even so, let us indulge in some speculation about what Democrats might do with regard to the debt ceiling next summer.  (Surely, nothing will happen on March 15, because everyone rightly sees that as a fake deadline.)  A large majority of Republicans has voted against all recent debt ceiling increases, and the Democrats have provided almost all of the votes to avoid disaster.  When Democrats held 200 House seats, that meant that Republican leaders only needed to find 18 Republicans to go along.  (They also needed to suspend the "Hastert Rule" to be able to vote on something that most Republicans oppose.)

In 2015, it appears that Democrats will hold about 188 seats.  Those dozen lost seats are 12 more votes that Republicans would have to round up.  But why would the Democrats play along this time?  Surely, the Republicans will be making demands for concessions from the White House, and Democrats (including House Minority Leader Pelosi) have already shown that they are unhappy with how much ground the White House has been willing to give up.

Why not force the Republicans, finally, to govern responsibly, as they claim they want to do?  That could mean, in this case, making an explicit deal: Although Democrats could withhold their votes and force almost the entire Republican caucus to vote for a debt ceiling increase, Democrats could be magnanimous and agree to provide one vote for a clean debt ceiling increase for every two votes that Republicans provide.  (Perhaps I am the only person who would note the similarity between that proposal and the "Boehner Rule," the made-up nonsensical requirement that "every dollar increase in the debt ceiling requires $2 of spending reduction.")

In order to get to 218 votes in the House, that would mean that Republicans would have to come up with 144 "yes" votes among their caucus -- a clear majority of their 247 or so members.  What if the Republicans said no?  The Democrats could then blame the ensuing default on Republicans, and then all but beg the Republicans to impeach President Obama for "picking and choosing" winners and losers.

The extra juice in this situation is that the Republicans have conditioned their base to become outraged by anything that looks like executive overreach.  If they are willing to go to the mattresses over Obama's prioritization of which illegal immigrants will be prosecuted, imagine the outrage when he starts choosing to default on obligations in Red states!

The larger point is that the Republicans have spent years trying to trap President Obama into an impeachable offense.  The Democrats can now decide whether they want to help Republicans avoid being caught in their own trap.

Monday, December 15, 2014

Judge Harry Edwards Is Still Unimpressed With Legal Scholarship

by Michael Dorf

Back in 2011, Chief Justice John Roberts made waves in the legal academy when he said this: "Pick up a copy of any law review that you see, and the first article is likely to be, you know, the influence of Immanuel Kant on evidentiary approaches in 18th Century Bulgaria, or something, which I’m sure was of great interest to the academic that wrote it, but isn’t of much help to the bar." The complaint that legal scholarship is not useful to practicing lawyers was roundly condemned (e.g., here) on the ground that it's not true and that even if it were true, so what? The point of scholarship in political science is not to help politicians, so why should scholarship about the law have to help lawyers?

Roberts' line was a throwaway--although I promise a laudatory blog post for anyone who gets a U.S. law review to publish an actual article on Kant's influence on 18th Century Bulgarian evidence law. Anyway, the view expressed by Roberts has been expressed more thoughtfully and at greater length by DC Circuit Judge Harry Edwards, thus showing that distaste for legal scholarship cuts across ideological divisions.

In 1992, Judge Edwards took to the pages of the Michigan Law Review to decry what he called The Growing Disjunction Between Legal Education and the Legal Profession. Although Judge Edwards was careful to qualify his criticisms by acknowledging the existence of good scholarship, his basic attitude was nostalgia for a then-rapidly-fading era when legal scholarship was written almost exclusively by first-rate lawyers-turned-academics who were interested in the same sorts of questions as courts (and perhaps legislatures), rather than by the new generation of "ivory tower dilettantes, pursuing whatever subjects pique their interest, whether or not the subject merits scholarship, and whether or not they have the scholarly skills to master it." (Emphasis in original.)

The Growing Disjunction was a cri de coeur of an old guard. As an academic, Professor Edwards was in a very important sense a pioneer: after several years in practice, he became the first African American member of the University of Michigan Law School faculty (receiving tenure at Harvard and then going back to Michigan). But Professor Edwards was quite conventional in a way: He had been an excellent student and an excellent lawyer, and he wrote law review articles and casebooks that were helpful to lawyers because they were written from the perspective of a lawyer.

I understand that perspective and sympathize with it because it is also my perspective. Judge Edwards published The Growing Disjunction the very semester that I began my career as a law professor. Like him, I was a lawyer who lacked advance training in any other discipline (unless you count physics), and I was (and remain) profoundly interested in the sorts of questions that arise in the practice of law. Nonetheless, perhaps because I arrived at the legal academy at a time when interdisciplinarity was already established, I never shared The Growing Disjunction's particular hostility to interdisciplinary scholarship.

To be sure, I agree that there is undoubtedly something to one version of the argument (which has also been made by Judge Posner). It goes like this: People trained in other academic disciplines seek positions on law faculties because they are either not good enough to warrant appointments in their own fields or because they are simply tempted by higher salaries in law than in (most) positions in arts and sciences. They end up producing mediocre work that is not, in any event, useful to lawyers, because their real interest lies in the other field.

I have no doubt that the foregoing claim has, or at least at one point had, some truth to it. However, if higher salaries are a draw, law faculties should be able to compete successfully with other disciplines for excellent scholars, not merely mediocre ones. Further, in my experience, law faculties are very good at sniffing out whether an interdisciplinary scholar has a project that sheds useful light on the sorts of questions best studied in a law school rather than in some other department.

But Judge Edwards remains unhappy with legal scholarship. In a new paper in the Virginia Law Review, he criticizes what he repeatedly calls "[i]ntensely theoretical, philosophical, and empirical scholarship, which is very much in vogue in the legal academy these days, [but] is rarely of interest or use to wide audiences."

Some of what Judge Edwards says in the new paper is right. For example, he repeats the familiar refrain that student-edited law journals lead to articles that are too long, boring, and overly footnoted. I agree that this is a fair criticism of much legal scholarship, although I question whether student editing accounts for all of these problems. But even granting that student editing exacerbates the long/boring/too-many-footnotes tendencies of legal scholarship, Judge Edwards takes no account of its upside: As I explained a little over a year ago, faculty-edited journals and university presses lack the staff that law journals have, and thus student editors rigorously cite check in a way that peer-edited and professionally edited journals and publishers do not.

I also find puzzling the lumping together of, on the one hand, philosophical and abstract work with, on the other hand, empirical work. Empirical work is, by definition, the opposite of abstract: It looks at a great many concrete cases (if it is large-n econometric) or it looks deeply at a small number of concrete cases (if it is qualitative). But either way, Judge Edwards appears to be complaining that legal scholarship is both too abstract and too concrete.

That's not necessarily a contradiction. Perhaps Judge Edwards is like Goldilocks. He wants legal scholarship that's neither too abstract nor too concrete, but just right. However, there's no indication in his new Virginia Law Review article that Judge Edwards is even aware of the internal tension in his critique, much less that he has in mind some way of resolving it.

To be sure, Judge Edwards does not say that he dislikes all empirical work, only the work that is "intensely . . . empirical." But what does that mean? We can understand the kind of empirical work that Judge Edwards does appreciate by looking at his own article, which, after all, aims to establish what is ultimately at least partly an empirical proposition, namely that legal scholarship is increasingly unhelpful to lawyers.

In fact, there is empirical evidence on this question. In a study published in 2012 in the Northwestern University Law Review, Professors Lee Petherbridge and David Schwartz looked at every Supreme Court case over the course of 60 years and found that the rate of citations of legal scholarship increased dramatically from the 1950s through the 1980s and then declined modestly. Even the recent modest decline that they find could be attributable to the greater conservatism of the Court in the most recent period, as the Justices look elsewhere for ideologically sympathetic materials. In any event, overall the paper undermines rather than supports the proposition that Supreme Court Justices find legal scholarship increasingly irrelevant to their work.

The new article by Judge Edwards does not discuss or even cite the Petherbridge and Schwartz article. Perhaps that's because Judge Edwards regards trend evidence as irrelevant. After all, he styles his Virginia Law Review paper a follow-up to criticisms found in a 1936 article by Yale law professor Fred Rodell. Thus, one might think that Judge Edwards isn't making an argument that legal scholarship has gotten worse, only one that it was problematic all along.

There is some of that plus-ca-change-plus-c'est-la-meme-chose quality to the new article by Judge Edwards, but there is also a good deal of hand-wringing about how trends in legal scholarship and legal academic hiring have made matters worse. Thus, the trend evidence adduced by Professors Petherbridge and Schwartz is relevant to Judge Edwards's thesis, and his failure to cite or discuss it is problematic.

What does Judge Edwards cite? He invokes as evidence for the decreasing relevance of legal scholarship the fact that he and various other prominent judges and Justices believe it to be increasingly irrelevant to their work. In addition to those already noted, he cites statements by Judge Dennis Jacobs, Judge Reena Raggi, and Justices Breyer and Scalia. That last citation is particularly odd, because his source is a piece I wrote, in which I explained why Justice Scalia was actually wrong in his disparagement of legal scholarship. Judge Edwards does not attempt to argue that I was mistaken, however, because he apparently believes that it is sufficient to demonstrate that legal scholarship is increasingly irrelevant to the work of courts to note that some prominent judges and Justices think that it is.

To put the point particularly uncharitably (but I think fairly), it appears that Judge Edwards objects to intensely empirical legal scholarship because he prefers what we might call casual, or even sloppy, empirical legal scholarship.

Politesse appears to compound the problem. Judge Edwards gives many counter-examples: Scholars whose work, while intensely theoretical, he nonetheless recognizes as valuable. But no doubt due to the commendable desire not to single out any particular work or scholar as useless or boring, he does not examine any articles in order to make his point. His only real examples are in a footnote in which he cites the titles of articles that he thinks are self-evidently pointless, mostly taken from a 1990 Harvard Law Review article by Kenneth Sasson, with one coming from a 2008 essay by Justice Breyer. The latter contains the only example from the last quarter century of the supposed wretchedness of legal scholarship. Justice Breyer singles out a 2007 Harvard Law Review article by University of San Diego law professor Orly Lobel titled The Paradox of Extra-legal Activism: Critical Legal Consciousness and Transformative Politics. Justice Breyer asks rhetorically whether "the busy practitioner or judge" will "want to read" Lobel's ostensibly esoteric paper.

The answer to that question is maybe not, but, at least with respect to some practitioners, that's a real pity. Lobel's article addresses a vitally important question for public interest lawyers: What are the limits of litigation and law reform as a means of bringing about social change? As against law skeptics like Gerald Rosenberg in his widely known book The Hollow Hope, Lobel contends that legal strategies are not particularly likely to divert social actors from their goals, because all forms of activism have the potential to co-opt participants. I'm not sure I agree with Lobel's conclusions, but to dismiss her article based on its title alone is grossly unfair.

In the end, then, it appears that the complaints of Judge Edwards, Justice Breyer, Chief Justice Roberts, and the other critics of legal scholarship rest on nothing more than an occasional perusal of the covers of law reviews. There may well be problems with legal scholarship. But the judicial critics have not made any kind of a case. At most, they've sent a signal to legal scholars that if they want to influence judges, they should title their articles something like "An Article That Is Super-Duper Helpful to Judges."

Friday, December 12, 2014

When the Public Hates Its Own Champions

-- Posted by Neil H. Buchanan

In my Dorf on Law posts last Tuesday and Thursday, I described a fundamental conflict between two views of punitive damages in civil cases.  In one, drawn from a line of scholarship among economics-based legal thinkers, punitives can be used to bring justice to wrongdoers (especially companies who predictably injure some fraction of their customers, because reducing injuries fails a cost-benefit test) who otherwise would never be forced to pay the full measure of the damage that they inflict on society.  In the other, which is the world in which we actually live (for the most part), punitives exist only to punish wrongdoers who are especially depraved.

It is well understood that there are three prongs to society's approach to controlling harmful behaviors in the commercial realm.  First, there is direct regulation, carried out by executive agencies of state and local governments as well as at the federal level.  The Consumer Product Safety Commission is the most obvious example, I suppose, and there are state-level equivalents as well.  Second, the government can bring a civil case against a wrongdoer.  In addition to, say, the U.S. Department of Housing and Urban Development bringing suit against "slumlords," states uniformly have dedicated agencies to handle such cases, often through the office of their attorneys general.

Finally, there are private lawsuits.  As I described last week, this third prong is important because regulators and government litigators are chronically resource-constrained, and it is unrealistic to imagine that any government could monitor and pursue all legitimate claims against wrongdoers.  It is also important because there is often political pressure on regulators and attorneys general (especially when, as often happens, attorneys general are elected officials who harbor unhidden ambitions for higher office) not to pursue cases against politically important wrongdoers.

Indeed, as Professor Dorf pointed out in a comment on my Thursday post, the tradeoff between state action (of either type, i.e., direct regulation or public lawsuit) and private action can be seen in differences among the states.  In southern states, where state governments have typically been captured by business interests (see, e.g., Alabama's infamously under-taxed and powerful timber industry), the public's interests have been vindicated through private litigation.  So-called "runaway juries" appear actually to be people who have been convinced that they are the last chance to put a check on the power of the people who own their state's governments.  (This, of course, is why those powerful interests have poured money into state judicial elections for the past few decades.)

What I did not mention in my posts last week is that the private parties who actually bring the cases can face serious hostility.  It is one thing for an attorney general to decide whether to risk her political career by, for example, bringing suit against purveyors of fatty foods, but when a private individual does so, the public blowback can be substantial, especially in the era of social media.

Consider two recent examples.  Among its many recent public relations "challenges," the National Football League has seen several of its teams being sued by cheerleaders for various legal infractions.  For example, the team in Buffalo, the Bills, has long had a squad of young, attractive female dancers on the sidelines for games, known as the Buffalo Jills.  It turns out that the members of the Jills are expected to do a lot more than dance on the sidelines for sixteen games each year.  (In the Bills' case, there are no playoff games to worry about.)

Five now-former members of the Jills have filed suit against the Bills for gross violations of labor law.  Apparently, the Jills have been expected to subject themselves to being groped by wealthy men at private parties, they have been encouraged (but not exactly required) to undergo cosmetic surgery, and they have been paid nothing but tips.  (The "tips for flips" concept, described in the linked article, is especially unsavory.)  The effective hourly wage comes to significantly less than $1.

What I found especially notable about that article, however, is that the plaintiffs in the case are being harassed for bringing the case.  As the writer described it, in part "because her lawsuit has angered many in this Bills town, [the litigant] declined to give her surname or to use it in the lawsuit."  Remember, we are talking about the fans in a very blue-collar city, and a case about a very wealthy employer stiffing employees on wages.

This certainly suggests that sexism (and football fanaticism) trumps class solidarity.  But in any event, the bottom line is that five young women who were not paid for the services are left to go to court, because the government refuses either to regulate properly or to pursue obvious violations of the law in court.  In addition to the uncertainty and expense of bringing the suit, the plaintiffs also face public abuse for their actions.  And this is true, even though a successful suit on their part would end up benefiting many other people.

Another recent incident highlights further problems with the "let the people validate their own rights in court" approach to civil damages.  A small incident in Boston went viral recently, because it involved a Harvard Business School professor who -- in a fashion that can only be called assholish -- responded to being overcharged for a take-out meal by threatening legal action.  The reason that the case was easy to lampoon is that the customer had been overcharged by $4.  What's the big deal, right?

Reading the email exchange between the aggrieved customer and the restaurant manager, what struck me is that the customer (who has a law degree, as well as an economics Ph.D.) clearly understood that his action was an attempt not to get his own $4 back, but to prevent systematic over-charging by the restaurant.  It turns out that Massachusetts even has an automatic treble-damages statute in place for such instances (and example of the "rough justice" approach that I described in my post last Thursday).  In his emails, the customer repeatedly said that it was not enough for the restaurant to refund his $4 (or even his $12 after damages), because the point of the law was to make it unprofitable for a business to draw people in with low prices and then charge them higher prices.  It was not about one customer, but about all customers.

In what should have been viewed as a positive move, the customer had contacted the state authorities to try to get them to vindicate the public's interest in the matter.  But because of the reasons discussed above, he knew that they would exercise their prosecutorial discretion to ignore the case.  (Prosecutorial discretion is never controversial, is it?)

The writer of the linked article, who was clearly sympathetic to the restauranteur (compare the photos that the news site published of the customer and manager -- evil douche bag versus friendly, hard-working immigrant), inadvertently managed to add in the one element that was missing from the case: "If you didn’t pass the Massachusetts bar, but still feel as though you must do SOMETHING, then just gather all the receipts you’ve saved, along with all screenshots you took and saved of the website menu in case that dinner order ever ended up in court, find a lawyer whose fees aren’t likely to exceed the few dollars you’re seeking, and ... voila?"

In other words, the problem is not just that a private individual has to bring such a case, but that no private individual has reason to do so.  Can you say "class action"?   But rather than bring a class action, with all of the problems that such a course of action would entail, this customer engaged in a time-consuming effort that would certainly not put him in the black.  (He did eventually up the ante, by asking for a refund for half of the price of the meal.)  And his stated reason for doing so was to do his part to make sure that the public law preventing systematic overcharging would be enforced.

Again, this guy seems like a dick.  But the question is, can anyone describe the "ideal plaintiff" in this kind of case, or the perfect fact pattern?  Let us imagine that the guy was not Harvard-affiliated, so that the anti-elitism charge would not stick.  Further imagine that the tone in his emails was unfailingly polite.  Even so, in the end, he would be ridiculed for not gladly accepting the $4 refund.  Indeed, a lot of people would fault him for even making a big deal about such a small amount.

The point is that it can actually be very difficult to find a case that someone would be willing to pursue, and that they would be willing to continue to pursue even in the face of public hostility, such that the public's legal interests are protected.  Yes, in this case we are talking about a small restaurant, but on the facts given, it had mischarged customers for months, in an amount that must have totaled tens of thousands of dollars, if not more.  The plot of "Superman 3" involved stealing the fractions of pennies from bank accounts, adding up to millions.  What would the public reaction be to a person who angrily sued the bank to recover his $0.0043 (times 3)?

All of which brings us back to the need for punitive damages.  If, as in the Boston restaurant case, the optics are going to look bad in many cases, then the cases that can be pursued and won need to carry with them extra sanctions.  Otherwise, we end up with situations like those faced by the Buffalo Jills, who face public ridicule for pressing their rights in court, against an entity that can escape liability by hiding behind the public's misplaced outrage.