Wednesday, September 28, 2016

Tracking Locational Data Via Cell Phones

by Sherry F. Colb

In my column on Verdict this week, I discuss the Indiana court of appeals case of Zanders v. Indiana, which held that police violate the Fourth Amendment if they obtain locational history data about a cell phone from the cell phone user's provider, absent a warrant.  Though the court tried to reconcile its ruling with existing case law, its strongest argument was that privacy would be severely compromised by a doctrine permitting police to gather locational history data about a person without a warrant.

In this post, I want to emphasize something I mentioned in the column:  if gathering locational history data is not considered a search at all (which it appears not to be, under existing Supreme Court doctrine), then innocent people may be subjected to such gathering for no reason at all or for an affirmatively bad reason.  Police may simply decide that they are curious regarding the whereabouts of particular politically unpopular people or groups and can go to cell phone providers to find out what "dirt" they might be able to dig up about their targets.  Because people keep their cell phones with them at most times, tracking the locational history of a cell phone essentially gives the police a running list of all of the places visited by the individual whose phone records they solicit.  This is an enormously intrusive capability, and those of us concerned about privacy against governmental incursion find the prospect of such surveillance Orwellian and frightening.

At the same time, it is useful to remember something about what it means to say that collecting such data does constitute a search.  It does not mean that police can never do it.

Gathering location history about a suspect who may have committed a serious offense can be an invaluable means of proving that the suspect did in fact (or perhaps did not in fact) commit the crime charged.  If calling the collection of such data a "search" meant that police could never gather the data, then it would be understandable that courts would reject the label and say that cell phone location data may be obtained without implicating the Fourth Amendment.

Fortunately, the Fourth Amendment does not prohibit all searches and seizures.  It prohibits only those that are "unreasonable."  Accordingly, if police have good reason to suspect a person of misconduct that can be further illuminated by a look at his or her locational history, then police may accordingly obtain a warrant to search and have the opportunity they want to look at where the suspect has been over a specified period of time.  In thinking about law enforcements needs, then, and balancing them against the individual's interest in privacy against unwarranted intrusion, it is crucial to keep in mind that police do not need carte blanche in order to do their jobs.  When they seek to invade a person's privacy, however, they do generally need probable cause and (often) a warrant as well.  That is all that the case of Zanders and the argument that locational data gathering is indeed a "search" aim to accomplish.

Tuesday, September 27, 2016

Trump Loses Badly to Clinton and Is Trounced by Reality

by Neil H. Buchanan

Donald Trump's loss in the first presidential debate on Monday night was predictable.  Jane Goodall, the expert on primate behavior, said earlier this year that Trump's behavior during the Republican primary debates reminded her "of male chimpanzees and their dominance rituals."  Unable to change his innate patterns as he faced off against Hillary Clinton, Trump looked increasingly ridiculous as the night wore on.

Before getting started, I should mention that I have not discussed the debate with anyone.  Further, I have refrained from watching commentators or campaign surrogates on TV, and I have not read any reactions or fact-checking articles regarding the debate.  For all intents and purposes, I have sequestered myself in order to take some time to analyze the debate before writing down these reactions.

I take this approach because I have always found it infuriating how quickly groupthink takes over in presidential debate commentary.  The usual suspects start talking to each other, and within minutes everyone is agreeing that Barack Obama seemed to be in a bad mood (2012's first debate), or Al Gore sighed too much (2000's first debate), and so on.  If I am going to offer my thoughts on the debate, they ought to be my thoughts, not an attempt to react to other people's thoughts.

Now, back to the debate.  Because I have some background in American parliamentary debate competitions, as both a debater and a coach, I am framing my reactions here around the debating aspects of last night's event.  In doing so, however, I will also discuss some of the policy substance and matters of style, as well as some big takeaways from the event.

Again, Clinton won the debate easily.  Trump's only real hope going into the night was to manage expectations, trying to convince everyone that his opponent was so obviously a better debater that he should be given points simply for showing up.

That might work with some commentators, but I am not interested in the expectations game.  I care -- and I think everyone should care -- who was the better debater last night, not who performed reasonably well in light of some people's expectations.  On both substance and style, it was not a close call.

There is, of course, a good argument that these are not really debates at all, but that is beside the point.  In any format, it is possible to judge a person on the basis of his or her ability to make arguments (backed up by logic and evidence), to attack other people's arguments, and to respond to attacks.  Whether in a debate hall at Oxford or a shouting match at a local pub, good debaters beat bad debaters.

Trump has never shown any ability to argue.  His entire campaign has been a long series of assertions, usually without even the pretense of building a logical argument.  "I'll build a beautiful wall, and Mexico will pay for it."  "Trust me, the jobs will come back."  Worse, on many issues, Trump frequently changes what he says without explanation or shame.

In a debate, it is essential to construct arguments and respond effectively to one's opponent.  Last night, Trump's most frequent method of replying to Clinton's arguments was to interrupt and say, "Wrooonnnggg!"  It brought to mind an old Monty Python sketch, in which two people simply yell, "Yes, it is," "No, it isn't," rather than actually arguing with each other.  Unfortunately for Trump, Hillary Clinton was not sinking to his level.

Of course, it was not a perfect night for Clinton.  Trump made a large number of claims during the debate, and Clinton did not have time to respond to all of them.  She thus missed a few opportunities that Trump laid out for her.

For example, at one point Trump said that he would adopt the stop-and-frisk policy to reduce crime.  The closest he came to an argument was to say that New York City had adopted stop-and-frisk under the Giuliani administration and that crime had then gone down, while the current mayor of New York (Bill de Blasio, whom Trump refused to name) dropped stop-and-frisk.

Clinton had several effective responses to this claim, noting in particular that stop-and-frisk resulted in young African-American and Latino men being targeted for harassment, which dovetailed nicely with her previous argument about the importance of building trust between communities and the police.  (This is another sign of a strong debater, using one argument to buttress another.)

Clinton also noted that crime in New York City had continued to fall even after the end of stop-and-frisk.  What she did not have a chance to say is that crime in other cities had fallen during the Giuliani and Bloomberg years, including cities that did not use stop-and-frisk, many of which had seen greater declines in crime rates than New York enjoyed.

If that was a missed opportunity, however, Clinton could afford it.  Trump was making matters worse for himself by claiming that stop-and-frisk had not been found unconstitutional.  His argument?  The judge who said it was unconstitutional was biased (thus unfortunately reminding viewers of his racist attacks on the judge in the Trump University fraud case), and the ruling would have been reversed on appeal.  In short: It wasn't ruled unconstitutional, because the judge who ruled it unconstitutional was wrong, and another court would have gotten it right.

On the campaign trail, Trump can get away with nonsensical sequences like that.  On a debate stage, he had to stand there and scowl while deciding when to interrupt Clinton next.  And the more he tried to deny reality, the more he flailed.

Along those lines, the two strangest strategic decisions Trump made were to try to rewrite history regarding his views on the Iraq War and his embrace of "birtherism."  In both cases, he had to know that the topics would come up and that his alternative realities had been completely debunked for weeks or months.

On his support for the Iraq War, Trump claimed not to remember exactly what he had said to Howard Stern in what is now a widely discussed interview in 2002.  Trump's new version of the story is that he had not thought about the subject much back then and thus should apparently not be held responsible for saying what he said.  (Another weird Trump move was to repeatedly ask why no one would interview Trump's cheerleader Sean Hannity, who will apparently swear that Trump opposed the war.  No, really.)

Similarly, when the moderator asked why Trump had continued with the birther nonsense during the five years after Trump claims to have "ended" the controversy, Trump brushed it off by saying that no one was really talking much about birtherism for the last five years.  He then tried to repeat a completely debunked lie about Clinton's supposed connection to birtherism.

But of course, Trump himself had been talking frequently about President Obama's birth certificate during that time, which is what the moderator wanted Trump to explain.  Saying that other people were not all that interested was non-responsive.  It made Clinton's response about the inherent racism of the birther claim all the more effective.

What is especially odd about these counterfactual assertions is that they could not have been off the cuff.  Trump had to have planned with his advisors to make these moves, because the two topics were sure to come up in the debate.  But instead of having answers that could somehow square his lies with reality, he simply waved his hands and tried to change the subject on two key issues.

Another example of pure debating prowess on Clinton's part (and whatever the opposite of prowess is on Trump's part) came when the moderator asked Trump about his recent claim that Hillary Clinton does not "look" presidential.

Earlier in the debate, Trump had made an inexplicably snarky remark about Clinton's having taken time off from campaigning, and Clinton had generously not interpreted that statement as a slam on her for having had pneumonia.  Given a second opportunity, Trump decided to make matters worse.

Trump said that that Clinton lacked the stamina to be president.  Clinton, in what was probably her best moment of the night -- in terms of substance, style, and looking appealing to undecided voters -- responded by saying that she has shown stamina as Secretary of State (traveling constantly on behalf of the United States), and she invoked the absurd 11-hour House Benghazi hearing as evidence of her fortitude.

In other words, Clinton responded to a baseless schoolyard taunt by saying, "You don't think I'm tough?  You don't know what tough is."  This was not only effective and directly responsive to Trump's assertion, but it showed that Clinton was not over-scripted or lapsing into wonkishness.  She was in the moment, taking down her opponent effortlessly and effectively.

Importantly, however, Clinton also managed to return to the moderator's question, which was about Trump's comment that Clinton did not "look" like a president.  Clinton noted that Trump had changed the subject by moving from looks to stamina, and although she had just won the stamina argument, she was not going to let him off the hook on looks.  She used that as an opportunity to remind voters that Trump disparages women regularly.

There were many puzzling moments in the debate, but perhaps the strangest of all was Trump's claim that everyone agrees that Rosie O'Donnell deserved the nasty things he had said about her.  At least, I think he was saying that.  It all became rather difficult to follow.

Indeed, as the debate wore on, it became more and more difficult to understand what Trump was trying to say.  It appeared that Trump was losing his struggle against his inner demons, because he began to make assertions that were simply at odds with reality, while claiming that the mainstream press had distorted reality.

More interestingly, Trump ultimately retreated into his patented aggrieved default mode, claiming that the Clinton campaign was being ever so nasty by running negative advertisements against him.  (He assured us that the ads were quite nasty and that most of them were false.)  He tried to say that he had considered being nasty to Clinton, but he was too magnanimous to go negative.  Maybe a few people even believed him.

By the end of the debate, Trump was becoming nearly incoherent.  His final comment found him simply repeating again and again that he would "make America great again," before finally saying meekly that he would respect the outcome of the election.  (This is not to say that he will stick to that promise, but he did say it.)

In my next column, I will turn to discussing the substance of the discussion of economic issues in the debate.  On those issues, too, Trump was in a losing battle against reality, but his errors there were less Trumpian than simple repetitions of Republican talking points.

Most of last night's debate, however, saw Trump being very much the person that we have seen in the campaign.  He was consistently rude and condescending, self-confident about matters of which he knows nothing, and incapable of stringing together logical thoughts and arguments.

I will now go off to read what the punditocracy has decided happened last night.  What actually happened on stage, in any case, was a trouncing.  Clinton was not perfect, but she was extremely good.  Trump was a version of his own worst self, which is bad in general but simply terrible on a debate stage.

Monday, September 26, 2016

A Former Debater Previews Tonight's Presidential "Debate" (and Proposes a Drinking Game)

by Michael Dorf

Tonight is the much-anticipated first of three presidential (and one vice-presidential) "debates" between the Republican and Democratic candidates. I have put the word in quotation marks to reflect the fact that, as Jill Lepore explains in an excellent recent article in The New Yorker, the presidential debates are more like simultaneous press conferences than conventional debates. Having said that, I hasten to add that while I do not think the format for tonight's event is ideal, I also don't think that a conventional debate is ideal either.

Lepore quotes various people who distinguish between presidential debates and Oxford-style debates. In the latter, one side takes the affirmative and the other side takes the negative of some proposition. In principle, this approach could be adapted to presidential debates. For example, we could have a debate on the proposition "the next president needs to build on the accomplishments of the Obama administration," with Clinton taking the affirmative and Trump taking the negative. Or, we could have a debate on the proposition "America's allies are not pulling their weight," with Trump taking the affirmative and Clinton the negative. Or "law-abiding undocumented immigrants should be given a path to citizenship," with Clinton affirmative and Trump negative. Or "the Affordable Care Act should be repealed and replaced," with Trump affirmative and Clinton negative. But the problem is that there are really too many topics to cover, so that each debate would have to be structured around one extremely vague or a few quite vague topics. The result would end up being something like the subject areas that moderator Lester Holt will ask the candidates about tonight: (1) America's Direction; (2) Achieving Prosperity; and (3) Securing America.

There are two further difficulties with modeling a presidential debate on a conventional Oxford-style debate. The election is not merely a contest of ideas. Indeed, from Trump's perspective, it is not a contest of ideas at all, as his appeal is rooted in the notion that the problems we face are best addressed by simply giving him power unrestrained by "political correctness" (or, as some of us still quaintly call it, the Constitution). But even were the GOP nominee more conventional, voters wouldn't simply want to know what each candidates' taxing, spending, regulatory, and defense priorities are. Nor could the candidates have a serious discussion of which priorities are, all things considered, better, even if they both wanted to. These debates are also a kind of job interview--a test of each candidate's knowledge and demeanor under pressure.

The second difficulty with Oxford-style debates is, in my view, actually a problem whenever such debates are used to address public policy issues for a broad audience, rather than merely undertaken as a competitive sport. Consider the high-quality Oxford-style debates produced by Intelligence Squared. Pairs of experts debate one another on important issues in a lively back-and-forth. However, under the misguided impression that the point of the exercise is to determine which team debated better, the scoring is peculiar. The audience is polled before and after the debate about their position on the debate question. The winner is not the side with more supporters after the debate but the side with more supporters after than before. Thus, to give a hypothetical example, suppose the proposition were: "There should be a total and complete shutdown of Muslims entering the United States until our country's representatives can figure out what is going on." Suppose further that before the debate 99% of the audience disagreed with the proposition and 1% agreed. Then, let's imagine that after the debate, only 98% of the audience disagreed. The affirmative side would be declared the winner because the audience had shifted in its direction. That makes no sense at all if we are trying to figure out what sensible policy should be. Except in debate as sport, the point of debate should be to consider which of competing views is sounder, not to determine which debaters are more skilled.

I say this even though I was a reasonably successful college debater in Oxford-style debate. Thirty years ago, my debate partner  and I won the American Parliamentary Debate Association's national championship. Three years earlier, my now co-blogger, sometime co-author, and good friend Neil Buchanan won the same championship. (A list of annual champions can be found on the APDA website. Notably absent from the list is the most notorious APDA debater, Ted Cruz, who won a great many awards as a debater, but not the national championship.) Admittedly, these are less impressive accomplishments than one might think. College debate in the U.S. is fractured among various formats. Parliamentary debate was and remains popular mostly at Ivy League and other elite, mostly northeastern colleges (as you can tell from the list of APDA champions and venues), while other styles of debate tend to dominate elsewhere. Accordingly, Neil and I were "national champions" somewhat in the way that winners of the formerly Trump-branded Miss Universe pageant are the "most beautiful and talented" (female) beings in the universe. It's certainly not nothing, but it's not exactly what it sounds like.

But I digress. Turning back to tonight's debate, I want to issue a warning and then offer some advice to each candidate.

First, the warning. Inevitably and immediately, pundits, focus groups, and pollsters will try to determine "who won" the debate. As noted above, this is the wrong question when trying to ascertain the result of a public policy debate. It's also the wrong question when posed about the candidates.

Suppose that an undecided somewhat libertarian voter begins watching the debate thinking "I'm not ready to vote for Clinton because I think that like most Democrats, she favors too great a role for regulation, but I'm afraid of Trump because I think he's too much like Hitler." Now suppose that after the debate that same voter thinks "I still think Clinton favors too much regulation, but I now think that Trump is more like Mussolini than like Hitler." Under the Intelligence Squared approach of asking who moved you more, this voter would have to conclude that Trump won the debate. But that's nuts. If my somewhat libertarian voter is justly horrified by electing Mussolini president, he should vote for Clinton over Trump, even though Trump isn't quite as bad as he feared before the debate. As with public policy debates generally, the question voters should ask--and that therefore responsible, which is to say mostly nonexistent, pundits should ask--is not "which way were people moved by this debate?" but "who made the better case to be president?".

Note that what I've just said differs a bit from the usual complaint about expectations. That's an additional problem. Because Trump has so accustomed us to his lies and insults, there is a risk that he will be graded on a curve. "Look at that," one imagines a tv talking head saying. "Trump smiled when he shook Clinton's hand."

But even apart from the tendency of the media to report on how a candidate did relative to expectations rather than in some objective sense, there is a tendency for reporting on debates to go meta almost right away. Instead of dwelling on what Trump said he would actually do about undocumented immigrants already in the country and how that does or does not square with what he previously said, the punditocracy can be expected to pivot immediately to how his debate performance will play with the voters. Likewise for Clinton, even if there is nothing in her performance that calls into question her honesty and trustworthiness, expect the talking heads to go meta about whether what she said will suffice to lay to rest the (mostly groundless) doubts that the public have about her honesty and trustworthiness.

Now some advice to each candidate.

For Clinton: You have multiple goals for this debate. These include:
1) Demonstrate your preparedness for the job through your mastery of policy;
2) Undercut the media narrative and much-too-widely-held belief that you are dishonest and untrustworthy;
3) Connect with voters on a personal level by showing that you understand and care about their problems;
4) Prosecute the case against Trump based on his many years as a con man and the despicable (probably best to use a different word!) nature of his campaign;
5) Respond to the various dishonest and idiotic things Trump says during the debate.

No single answer to any question can do all of those things. Further, as a general matter, time spent attacking Trump is time not spent painting your own image and vice-versa. If it were my call, I'd strongly prioritize the affirmative goals of 1 through 3 because there are already lots of voters uneasy with Trump who are looking for a reason to vote for you rather than sitting out or casting a protest vote for Johnson or Stein. That's not to say you must completely ignore goals 4 and 5. It is instead to say that you should aim at those only insofar as it doesn't take much time away from your affirmative case. E.g., in the course of explaining all of the good work that the Clinton Foundation has done, you can contrast that with how the Trump Foundation spent $20,000 of money intended for charity to purchase a portrait of Trump. Or, in the course of delving deep into your experience combating al Qaeda and other jihadists, note that Trump's all-purpose claim that he wants to be "unpredictable" is obviously just a cover for the fact that he is a policy ignoramus. There are limited contexts in which game theory favors tactical unpredictability, but Trump invokes the supposed magic of unpredictability whenever he gets a question he can't answer.

For Trump: If I'm thinking only about the good of the country and the world, my main advice would be that you should crawl back under the jewel-encrusted rock from which you emerged last year, and thus save us from the catastrophe that we would risk should you manage to win the election. However, secure in the knowledge that neither you nor the people who try to package you to voters will actually read what I say here, I will pretend that I am being tortured in order to give you advice about how to do well in the debate. It's not so unrealistic, given the prominent role that torture and other war crimes (like plunder) would play in your foreign policy. Okay here goes:

Conventional wisdom says that you have an easier job in this debate because expectations are so low. That conventional wisdom is wrong. Expectations were even lower for Sarah Palin in the 2008 vice-presidential debate, which meant that the pundits immediately declared that she had done very well. But the story changed the next day when people who were not grading on a curve weighed in. They saw Palin and they judged her unprepared to be Commander in Chief in the event that tragedy should befall a President McCain. Running at the top of the ticket, you have a higher bar to clear.

As you are now in your eighth decade of existence on this planet, with only a few hours until the debate, it's undoubtedly too late to advise you to read up on current events, history, science, economics, and all of the other stuff that the leader of a great country ought to know about. Thus, actually talking knowledgeably is out of the question for you. Instead, I imagine that you will try to stall with superlative word salad ("terrific", "huge", "the best") as much as possible. In addition, your handlers have probably given you some lines to memorize. You now face a dilemma. Even if you can remember your prepackaged lines, you will be sorely tempted to ad lib because of that "very good brain" of yours. You should resist the temptation. Your goal for this debate is to be boring. Stick to word salad and the memorized lines, even at the risk of looking like a robotic Marco Rubio unmasked by Chris Christie. People who plan to vote for you because they find your unique brand of narcissism, faux-populism, and racism appealing won't fault you for being boring for one night, but the swing voters who are trying to figure out whether you are too much of a buffoon and a racist to be trusted with the nuclear codes will prefer boring to Trumptastic.

To the candidates: You're welcome.

To everyone else: Bonus points for the reader who comes up with the best drinking game to play while watching the debate. I'll get us started with a default drinking game. Here are the rules:

Drink each time . . .

Trump says "crooked", "we don't win anymore", "make America great again", or "people tell me."

Clinton says "steady", "experience", "children," or "Obama."

Bottoms up!

Saturday, September 24, 2016

Economic Policy and the Presidential Campaign

by Neil H. Buchanan

Like Professors Colb and Dorf, I write a biweekly column for Justia's Verdict legal commentary website.  Our standard practice is to write an associated Dorf on Law post the same day that a Verdict column is published, usually to dig more deeply into an issue raised in the new column or to pursue a logical next step in the analysis.

This week was different for me.  I wrote two Verdict columns in which I discussed different aspects of economic policy, whereas my one Dorf on Law post was on a different topic entirely ("Trump is Weakness in an Uncertain World").

For those Dorf on Law readers who might be interested, my Verdict columns from this week are:

Trump’s Economic Policy Announcements Keep Changing, But They Never Get Better



Friday, September 23, 2016

How the US Looks From Afar These Days

By William Hausdorff

What image does the US have abroad these crazy days? And do we care? In national elections, people are naturally inwardly focused on what the election may mean for them, their families, and their communities. But as viewed from abroad, the national narcissism appears especially intense this year.

American politicians of both parties used to care more about that image, or at least said they did. A major component of the Cold War policies pursued by all American governments was the need to “look strong” and “fulfill our commitments to friends and allies.” Many commentators have noted that although President Lyndon Johnson recognized early on that the Vietnam War was unwinnable, he felt so trapped by the need to project a certain image of the US that he ended up escalating the War with the known disastrous consequences.

Richard Nixon’s similar preoccupation with “peace with honor” served as a pretext to continue to prosecute the War for another four years, notwithstanding his “secret plan” to end it. One can argue that this preoccupation was either totally cynical or delusional, as few people outside the US genuinely considered that continuing the War--and in fact, expanding it into Cambodia--burnished America’s image. But then again, despite the fact that 22,000 of the total 58,000 US deaths, and hundreds of thousands of additional Vietnamese, Cambodian, and Laotian deaths occurred during Nixon’s first term, the Norwegian Nobel Committee saw fit to award the 1973 Peace Prize to Henry Kissinger, the strategic mastermind of Nixon’s policy as his National Security Advisor. It’s sometimes forgotten that Le Duc Tho, his co-awardee and Vietnamese counterpart, refused the prize, noting that peace hadn’t really been established in Vietnam.

All cynicism aside, at least there was a recognition by US government officials that the image of the US abroad mattered. In the past few years, however, it seems the Republican Party has lost interest in how the rest of the world views the US.

In fairness, Trump and the Republicans do like to claim that the “US looks weak” in their attacks on Obama. But in contrast to previous administrations’ preoccupation with honoring American commitments, this crowd flouts its willingness to walk away from painstakingly negotiated international agreements, such as on Climate Change and Iran, not to mention NATO. No political party concerned with the international perception of the US would have invited a foreign head-of-state (Israel’s Benjamin Netanyahu) to address a joint session of the US Congress for the explicit purpose of flatly criticizing the US president. No presidential candidate concerned about the US image would go on Russian state-owned TV to criticize the US president.

No one can seriously argue that these behaviors enhance America’s standing. Given the likelihood that erratic leaders in countries like the Philippines or nuclear-armed North Korea will continue to hurl personal insults at US leaders, it is hardly reassuring that the thinnest skinned US Presidential candidate ever, with a fondness for violent rhetoric, has vowed he wouldn’t “let” Iranian or Chinese officials insult us or our sailors.

Based on personal conversations and my reading of local newspapers, Europeans are watching the US election campaign with bewilderment, fear, and horrified fascination this year. While many are not surprised to see another dogmatic, gleefully ignorant Presidential candidate, they did not expect the US to produce someone so openly nasty and outrageous, and who seems to cozy up to Putin, especially when Europe itself has longstanding issues with their big neighbor. And I think they are sad to see the US with Trump echoing some of the more poisonous political characters in their own societies, with the additional concern that in the US “it matters more.”

Naturally Americans overseas are now asked, “How could the US, of all countries, vote for Trump?” There is a certain déjà vu from the period immediately following the US invasion of Iraq. At that time, one quickly learned to brace oneself before answering the question, “So what country are you from?” as the response would often lead to sour looks if not the prosecutorial questioning of “How could the US possibly re-elect Bush?”

My initial responses at the time were that almost half of America did NOT vote for Bush, and highlighted how huge and divided the country actually was: The US is more like a continent rather than a single European country, and naturally quite diverse—like Europe is. There are huge regional differences in voting patterns: the East and West Coasts and the Great Lakes states vote very differently in Presidential Elections than most of the South, mid-West and West, blue and red states etc. Not to mention the existence of the electoral college.

This may seem common knowledge, and even a point of pride for some of us, but many educated Europeans seem unaware of these geographical subtleties. I even heard from a couple of Belgian colleagues that they considered the US to be culturally less heterogeneous than Belgium (11 million people), which after all has 3 official languages (French, the Flemish variant of Dutch, and German)! And indeed, why should foreigners be aware of US regional political differences? The attentive US reader may have learned recently about geographically where in the UK support for Brexit came from, but can any of us gringos discuss the regional differences in Italian voting patterns for Silvio Berlusconi? Or Jean-Marie Le Pen in France? Where exactly in Germany is Angela’s Merkel’s strongest support?

I was eventually able to avoid all this Americasplaining when I stumbled on a more concise response to the original question as to where I was from: “New York.” This would invariably prompt big smiles of, “Oh I love New York City!” followed by accounts of their personal experience or desires to visit there.

As a side note, this New York affinity was paradoxically strengthened I think by the 9/11 attacks. I watched the attacks on the Twin Towers and Washington live from my office in western New York. But what was 9 a.m. East Coast time was only mid-afternoon in Europe, and mid-evening in much of Asia—and so I’ve learned that millions of people around the world also watched the horrors unfold in real time. This shared viewing experience engendered a strong sense of shared trauma, not only from the many with relatives living in New York or who had visited there, but because New York is by far the most iconic American city for foreigners.

But of course it’s not just New York. Many many people outside the US feel very connected to this country, even if the feelings are often ambivalent. There are the well-known familial bonds—everybody seems to have a brother or cousin, not just in New York or Los Angeles or Chicago, but in Boise, or Chapel Hill, or Tulsa. There are the obvious political and economic linkages. On numerous occasions, European colleagues and friends have announced with only half serious laughs that they also should be able to vote in US elections as US policies directly affect them even more than those of their own leaders.

There is of course the cultural connection, given the popularity of American movies and TV shows around the globe. As one trivial example, I remember being on the immigration line at Heathrow Airport on my first trip as a college student to Europe, and being told by a Libyan my age that he loved Leave it to Beaver, which apparently aired on Libyan TV under the Kadhafi regime in the late 1970s.

With Trump, while the geographic voting patterns remain, I have felt compelled to try to offer a more fundamental answer. Among U.S. Trump supporters, there is unquestionably a non-trivial percentage of “deplorables” who embrace his racism, his macho swaggering and denigration of women, as well as his advocacy of violence. However, my impression is that most others see their vote for him essentially as a collective and symbolic “fuck you” to the establishment and to the “rigged system.” Turbo-charged by an almost mythical level of loathing for Hillary Clinton.

And while this latter group of supporters doesn’t necessarily share Trump’s other values, they either don’t stop to think how those might get translated into mean-spirited policies in a Trump administration, or else they presume that his worst impulses will be restrained by “the system” and his advisors. Unfortunately, restraint hasn’t worked so far—the litany of outrageous behaviors, non-stop lies and bizarre conspiracy theories continues, unabated. And yet he remains supported by almost all of the Republican leadership. So why would he behave differently once he gains real power as President?

The current presidential campaign is clearly damaging the perception of the US overseas. Is this irreparable? While the Vietnam War cast a negative pall over the US image abroad that was still obvious 10 years after the war ended, even in those days I sometimes encountered a different view. Back in the early 1980s I was travelling as a young graduate student with two friends in Crete. At the end of a hot, dusty August day of sightseeing, we collapsed onto park benches in a large town square in Heraklion to gather our wits for the dinner search. A man in his late 60s came over to us, and mutely offered a cigarette. After we politely declined, he asked, “American?” I nodded, wincing slightly, as I assumed that once again our sneakers had betrayed our nationality. (Update: Given the newfound European popularity of Converse, this is no longer a telltale sign.)

As this occurred when Ronald Reagan wasn’t a popular figure in Western Europe and certainly not in Greece, I wondered what was coming next. “USA. Very, very good!” he said with a smile as he pulled back the sleeve of his sweatshirt to show a blurry number tattooed on his arm. I later learned that the Nazi retributions against the fierce Cretan resistance had been particularly brutal.

Lest this sound like a nostalgia trip from a bygone era, a similar event occurred only a decade ago--just a few years after the Iraq invasion. Then my family and I spent a few days in Corsica, and were chatting in rudimentary French with the 70s-ish owner of a busy seafood restaurant. When she discovered we were American, she broke into a big smile, and recounted memories as a young girl of the Allied liberation of the island from the Italians in the early 1940s. Even though I don’t think US G.I.’s were directly involved in its liberation, the US role in WWII still casts a warm if fading glow.

In general, however, it took the election (and re-election) of Barack Obama to remove the taint of the Iraq invasion and the Bush years.

It would be nice not to see America’s image trashed yet again. So I’ve been trying to imagine what, at this point, Trump would have to say or do to lose a significant proportion of his support. I’m not coming up with a lot. Back in January, he himself declared, perhaps quite accurately, "I could stand in the middle of 5th Avenue and shoot somebody and I wouldn't lose voters.

This is strikingly reminiscent of the colorful boast by former Governor of Louisiana Edwin Edwards in 1983 that, “The only way I can lose this election is if I’m caught in bed with either a dead girl or a live boy.” While Edwards did win that election, he eventually went to prison on racketeering charges.  So maybe there is hope.

[Editor's Note: William Hausdorff received his PhD in Biology from the Johns Hopkins University/National Institutes of Health and conducted post-doctoral research in biochemistry at Duke University.  For the past 25 years he has worked and published widely in the field of international public health, initially with the US Centers for Disease Control/US Agency for International Development in Washington DC and Cairo, Egypt, and more recently within the vaccine development divisions of two pharmaceutical companies.  At present he is a freelance consultant based in Brussels, Belgium. He has closely followed presidential politics since the days of McGovern/Nixon. His special interest is in the intersection of science and society, dating from his undergraduate thesis on the health effects of Agent Orange. His prior posts on Dorf on Law appear here, here, and here.]

Thursday, September 22, 2016

Questions for Judge Katzmann

by Michael Dorf

Yesterday, a panel of the U.S. Court of Appeals for the Second Circuit--Chief Judge Katzmann, Judge Hall, and Judge Wesley--heard oral arguments here at Cornell Law School rather than in their usual courthouse at Foley Square in lower Manhattan. Continuing the festivities, today I will moderate a discussion with Judge Katzmann. I plan to ask some questions and then some follow-ups depending on what Judge Katzmann says, before opening the discussion up to the audience.

Of course there are standard questions one asks of a judge in this sort of setting, but I'm going to try to focus on questions that arise out of Judge Katzmann's 2014 book Judging Statutes. The book is more or less a defense of purposivism in statutory interpretation--and especially the use of legislative history as a means of construing vague or ambiguous legislative language. Conversely, the book critiques textualism. Judge Katzmann's excellent and highly readable book illustrates his own views with in-depth studies based on three cases his court decided and that were subsequently reviewed by the Supreme Court.

Here is a preview of three of the lines of inquiry I hope to pursue in our conversation later today. I'll pose them here as though I'm speaking directly to Judge Katzmann.

(1) In making the case for the relevance of legislative history, you argue that Congress itself and the administrative agencies consider legislative history essential to how they create, understand, and administer statutes. But does it follow that courts should resort to the same material? Let me suggest that you need some further argument for that proposition.

Here’s a suggestive metaphor for what I regard as the gap in the argument. Editors of textbooks often also write Teacher’s Manuals, which are available to instructors but not students. The teachers use the manuals to get a deeper understanding of the material and to make lesson plans, but the students don’t have access to them. Might legislative history work similarly? Or consider the owner’s manual of a car. There are a great many documents that are relevant to the production and servicing of a car, but the owner—if she is not an amateur mechanic—only looks at the owner’s manual. I’m not suggesting that either of these examples is anything like a perfect analogy. I’m simply giving them to make the point that it is sometimes sensible for one audience to have reference to a narrower range of documents than another audience. Why do you think that judges should have reference to all of the technical production documents for a statute rather than just the owner's manual?

(2)  In your book, you distinguish between purposivism and textualism, expressing a preference for purposivism. When I teach my students about different approaches to statutory construction, I usually include a third approach: Intentionalism. The chief difference between intentionalism and purposivism is that the former asks what the legislature actually intended, whereas the latter asks what purpose or purposes can reasonably be attributed to a statute and then how best to carry them out. A purposivist might, but also might not, be amenable to consulting legislative history. Do you disagree with this schema? If not, do you consider yourself an intentionalist or a purposivist? Why?

(3) You note in your book that some textualists ground their approach in public choice theory, which you criticize on the ground that it inaccurately disregards the sometimes-public-regarding reasons Congress has for enacting laws. For what it's worth, I agree with your critique of public choice.

You also note, however, that there are other arguments for textualism that do not rely on public choice theory. One leading such argument--originally proposed by Prof. John Manning and later adopted by other textualists--treats textualism as a non-delegation doctrine. When courts treat committee reports, floor statements, and other sorts of legislative history as highly probative of the meaning of statutes, textualists argue, they effectively delegate to congressional staff or to particular members of Congress the task of legislating. But cases like Bowsher v. Synar and Metrop Washington Airports Authority v. Citizens for the Abatement of Aircraft Noise forbid such delegations. Article I, Section 7 says that Congress, not a servant or subset of Congress, has the power to legislate.

You say that the non-delegation argument for textualism is mistaken. You write:
The contention that the use of legislative history violates the constitutional proscription against self-delegation . . . is premised on a mistaken view of the legislative process. Legislative history accompanying proposed legislation precedes legislative enactment. When Congress passes a law, it can be said to incorporate the materials that it, or at least the law's principal sponsors (and others who worked to secure enactment), deem useful in interpreting the law. After all, Article I of the Constitution gives each chamber the authority to set its own procedures for the introduction, consideration, and approval of bills. And each chamber has established its own rules and practices governing lawmaking--some favoring certain proceedings over others--establishing [what Professor Brudney calls] "a resultant hierarchy of internal communications." Those rules and procedures give particular legislators, such as committee chairs, floor managers, and party leaders, substantial control over the process by which legislation is enacted. Communications from such members as to the meaning of proposed statutes can provide reliable signals to the whole chamber.
It seems to me that there are potentially three distinct arguments in that passage. One is simply about timing. It says that because the legislative history process takes place before enactment of the law, giving it effect as law is not delegation. If meant to stand alone, the timing point strikes me as not very forceful. Suppose that a law contained the following clause: "In ascertaining the meaning of Section 2j of this Act, the views expressed by the junior Senator from Vermont prior to the law's enactment shall be deemed authoritative." Or worse: "In ascertaining the meaning of Section 2j of this Act, the views expressed by the Duke of Wales prior to the law's enactment shall be deemed authoritative." If there is no evidence that Congress was actually aware of what the junior Senator from Vermont (or the Duke of Wales) said, then we cannot treat Congress as incorporating by reference his expressed views. Rather, this looks like delegation either to a subset of Congress or wholly outside Congress, plain and simple. The timing doesn't appear to matter.

Accordingly, I take you to be saying that the timing interacts with the actual legislative process. That brings me to the second argument: The idea is that the whole of Congress is keenly aware of what the committees and sponsors say and intend, and so when a statute uses unclear language, we can safely assume that such language incorporates by reference the statements found in the legislative history. This argument strikes me as persuasive if the factual assumptions underlying it are correct, but I think they're pretty plainly false. As you note in the book, most members of Congress are not aware of much of the language in most statutes they enact, much less of the glosses given to it by the committee process.

That brings me to the third argument in the passage quoted above: Congress has the power, in virtue of Article I, Sec. 5 ("Each House may determine the Rules of its Proceedings"), to delegate actual lawmaking power to its committees, so long as it follows up by enacting legislation. For this argument to work, one must either think that cases like Bowsher and Metrop. Washington are wrongly decided or think that the absence of a formal delegation to committees makes a big difference.

I hasten to add that I don't think that reliance on legislative history to fill statutory gaps violates the non-delegation doctrine for two reasons. First, the non-delegation doctrine is quite toothless. The authority granted by looking to legislative history is much more minor than in cases like Bowsher and Metrop. Washington (which, technically, are not non-delegation cases so much as Art I, Section 7 formalism cases). Second, as you write elsewhere in the book, looking to legislative history where the statutory meaning is otherwise unclear constrains courts. It would be better if Congress could be clearer (it can't always be), but as between judges making stuff up and pretending to find their preferences in the text versus looking to what will probably be a pretty good indication of legislative intent, the latter makes more sense.

* * *

I'm looking forward to a terrific session.

Wednesday, September 21, 2016

Wedge Issues in the Courts

by Michael Dorf

In my new Verdict column, I consider the various ways in which the future path of SCOTUS jurisprudence does not depend on the outcome of the 2016 presidential and Senate elections. For what I imagine are a majority of DoL readers and, indeed, for myself, the column is intended partly as a form of therapy. There are many potentially terrible consequences of a Trump presidency, should it come to pass, but, my column suggests, a terrible Supreme Court is not really one of them. Trump would almost certainly nominate a conservative to fill the current vacancy and additional conservatives to fill future vacancies. That, in turn, could lead to a conservative Supreme Court for a generation. And that, in my view, would be quite bad on a range of issues I care about, including abortion, affirmative action, campaign finance regulation, federal regulatory power, gun control, and more. But so far as the Supreme Court is concerned, Trump poses no greater threat than would a generic Republican president. So yes, a Trump victory would be (for liberals like me) terrible for the Supreme Court but not in a distinctly Trumpian way.

The Verdict column offers three reasons for some measure of equanimity if not quite optimism about the Supreme Court. First, the Court does not play a significant role in some of the most fundamental questions our polity addresses, including whether to go to war, tax rates, interest rates, treaty negotiation and ratification, and much more.

Second, in many areas the Court proceeds from consensus. This includes free speech, which, in the event of a Trump presidency, could be important. It is possible to imagine the Roberts Court standing up to a censorial Trump administration in some contexts.

Third, new issues could arise without a clear ideological valence or with one that cuts across existing divisions. In the column I discuss surveillance, robots, and animal rights as possibilities.

Having said all of that, I also want to acknowledge that there could be new issues that reinforce existing ideological patterns. For a recent example, consider the ideological division on the Court in NFIB v. Sebelius, the challenge to the so-called individual mandate of the Affordable Care Act. The Court split 5-4 on the permissibility of the mandate under the Commerce Clause (against) and 5-4 on its permissibility under the Taxing Power (in favor). At the time, everyone was focused on the fact that CJ Roberts was willing to vote to uphold the mandate as a tax, but that framing overlooked a more basic question: Why was the case ideologically polarizing at all?

Based on prior cases, there was nothing unexpected about the more conservative justices being more skeptical of federal power than the more liberal justices, but that doesn't really tell us why the issue was controversial. After all, the question whether Congress could issue mandates hadn't really arisen before. Once we knew it was going to be ideologically divisive, it was easy to predict how, but there are lots of federal statutes that do something a little new that don't create ideological divisions on the Supreme Court. And the core idea for the mandate was originally embraced by some Republicans as a market-oriented alternative to government-run single-payer health insurance.  Conversely, one could imagine an alternative history in which a Republican Congress and president adopted the mandate over the objections of libertarian-minded liberals. Indeed, during the 2008 primaries, then-Senator Obama sounded objections in this register.

Thus, the mandate became an ideologically polarizing issue on the Court, but it wasn't inherently polarizing on left/right grounds. It was contingently polarizing. It is possible to imagine lots of issues that could have that characteristic--where ideological opposition mostly originates from the fact that the other team is behind the program, not from the nature of the program itself.

There are also issues that are inherently polarizing. Many of the ideologically polarizing issues with which we are familiar have this characteristic and few of them are likely to go away. Abortion, affirmative action and race more broadly, campaign finance, the death penalty, gun regulation, and various other divisive issues will likely remain so for the Court for the foreseeable future, even if they end up dividing 6-3 rather than 5-4.

I suspect that LGBT rights as a wedge issue will increasingly fade. That's true for same-sex marriage already and could soon be true for trans rights. Notably, Ted Cruz tried to run on an anti-trans-accommodation platform in the primaries and got little traction. In the Republican primary.

That's not to say that politicians won't attempt to mobilize around anti-LGBT issues. The challenge to the Obama Title IX policy is already dividing the justices on predictable left/right grounds. But I think that, as with gay rights, so with trans rights, eventually this issue will lose its ability to raise the blood pressure of enough social conservatives to make it worth pursuing for wedge purposes--with an important exception to which I'll come in a moment.

So what will be the next big wedge issue? Another way to ask that question is this: If I were an evil genius working for Republican candidates for office, what looming social change could I tap to energize fear and outrage? Fear of terrorism seems like an obvious choice, but that's not really a new issue.

Meanwhile, the Trump campaign has shown that to mobilize reactionary impulses, one doesn't really need a coherent plan or an objection to a particular plan by opponents. It's notable that most of what Trump complains about from Clinton is imaginary: her imagined plans to disarm America; her imagined plan of open borders; etc. These imaginary outrages may be good for mobilizing voters but it's hard to see how they translate into court cases.

Or maybe it's not so hard. For some years now, conservative pundits and politicians have been mobilizing against the imaginary War on Christmas. Even though there is no such thing happening, the courts are already facing significant polarizing litigation based on the premise that laws granting contraception benefits and requiring public accommodations for LGBT persons infringe the religious rights of religious conservatives. Religious accommodations aren't exactly a new wedge issue, but they promise to be a potent one.

Interested readers are invited to propose their wedge issues. Bonus points to anyone who proposes good wedge issues for Democrats.