Monday, August 10, 2015

Republican Debaters Tout Departmentalism

by Michael Dorf

Last week's Republican presidential debate featured three main invocations of the Constitution as a blueprint for action in the respective (hypothetical) administrations of various candidates.

(1) Multiple candidates opined that the federal government now undertakes tasks that, in our federal system, ought to be left to the states. For example, Jeb Bush averred that the federal government ought not to have a role in setting curricula for primary education, while Mike Huckabee said that "there are a lot of things happening at the federal level that are absolutely beyond the jurisdiction of the Constitution," citing federal environmental policy and education policy. In general, the Tenth Amendment appeared to hover over the event, with the notable exception (in this as in other matters) of Donald Trump, whose chief complaint about the Affordable Care Act was that it creates (or more properly, leaves in place) separate state-by-state insurance markets, rather than one big national market. That's a reasonable complaint for the owner of interstate businesses to voice but it's quite out of touch with the Republican Party line. I suspect the only reason it didn't get more negative attention was that it was less out of touch with the Republican Party line than Trump's praise for Canadian single-payer health insurance.

(2) Rand Paul defended his objection to NSA bulk phone record collection by invoking the Fourth Amendment. The confrontation with Chris Christie on this point was perhaps the most heated of the night. Paul insisted that by making a showing before a judge, the government could conduct necessary surveillance of terrorists without infringing the privacy of law-abiding citizens. Christie responded (more or less) that the determination cannot be made ex ante--and although he didn't articulate it this way, that presumably this makes the bulk collection "reasonable" within the meaning of the Fourth Amendment.

I will come to the third appearance of the Constitution momentarily, but first, it's worth noting that both points (1) and (2) relate to powers of the president. As to (1), a president could work with Congress to change the law so that more responsibilities now undertaken by the federal government are devolved to the states. Even absent new legislation, a president has some prosecutorial discretion to under-enforce those aspects of federal law that he thinks infringe on state prerogatives or otherwise should be de-prioritized. (The Obama Administration's policies on marijuana and immigration, respectively, are examples, albeit ones that Republicans won't invoke for ideological reasons.)

Senator Paul also appeared to be on solid constitutional ground with respect to bulk data collection. As some courts have found, the program (as it existed until recently) is illegal.  Even if the courts were to find that bulk data collection is constitutionally valid, a President Paul could invoke the president's independent duty to construe the Constitution and go farther than the courts. At least that's one respectable view of the power of the president in matters of constitutional interpretation. My most recent musings on such "departmentalism" can be found here, with links to earlier discussions included therein.

But now we come to the Constitution's third major appearance:

(3) Mike Huckabee seemed to say that as president he would defy the Supreme Court. He said that as he reads the Constitution, zygotes, embryos, and fetuses (hereafter collectively "fetuses" for simplicity) are "persons" within the meaning of the Fifth and Fourteenth Amendments, and thus entitled to the protection of the due process and equal protection clauses. As a substantive matter, the reading is a bit curious with respect to due process because even assuming fetuses are entitled to substantive due process, the state failure to forbid private violence against them doesn't appear to amount to state action. But let's let that slide and applaud Huckabee for standing up for substantive due process. His equal protection argument is better, in any event. The idea would be that by protecting the born but not the unborn from private violence, the government denies the unborn equal protection.

I'm not now going to try to evaluate the merits of that argument. Let's say that a President Huckabee sincerely believes it. Can he act on it? In some ways, sure. He could propose and promote a constitutional amendment granting rights to fetuses, but in the very same answer Huckabee said obtaining a constitutional amendment involves "a long and difficult process," instead staking out a "bolder" approach.

What is that bolder approach? It appears that Huckabee has in mind acting as president on the assumption that fetuses have constitutional rights that trump any interests women have in abortions. But that runs squarely into conflict with current Supreme Court case law. A President Paul who does not engage in surveillance that the Supreme Court would allow does not create any conflict between the executive and judicial branches. By contrast, a President Huckabee who recognizes fetal rights the Supreme Court does not recognize in order to deny rights of women that the Supreme Court has recognized does create a direct conflict. This is indeed a bold assertion. It's a more potent form of departmentalism than anything touted by Jefferson, Lincoln, or their modern successors.

But Huckabee didn't sound like he realized that his "bolder" option was, in effect, advocacy of uncivil disobedience by a president. And given that Huckabee has said that the president generally has a duty not only to obey but to enforce laws with which he disagrees, apparently he is not, in general, a departmentalist of any sort.

There may be times when outright defiance of the courts is justified and it's likely that Governor Huckabee believes that abortion is such a monstrous evil that stopping it takes priority over the rule of law. But if so, he ought to say whether abortion is unique in this way or whether there are other monstrous evils that will have him not merely under-enforcing but violating the law in the unlikely event that he becomes president.


David Ricardo said...

Gov. Huckabee is just one example of how politicians and others take that part of the Constitution that supports their positions and embrace it while at the same time rejecting that same part of the Constitution that supports the positions that they oppose. The Governor wants to use the equal protection and due process clauses to support the idea that a two cell embryo has full Constitutional protections while fully formed men and women who are gay have no equal protection and due process rights under that same Constitution with respect to their private lives.

That the former (thank you) Governor and others take this position is reason enough why most of us cannot join Mr. Dorf in his statement “But let's let that slide and applaud Huckabee for standing up for substantive due process.” To support Constitutional protections for some but not for all is the support Constitutional protections for none.

Joe said...

Some Republicans are consistently supporting using the states as laboratories in regard to marijuana though some conservatives are no fan of that as policy, but they are selective localists, particularly when D.C. is involved.

Pushback here would be appreciated as FOX questions challenged people on their abortion positions. For instance, Rand Paul didn't want marriage and religion to be micromanaged from D.C. Does he also think the national government shouldn't do that for abortion? Does he oppose the Hyde Amendment since individual should have the right to make medical choices following their own religious and moral beliefs?

I question how serious Mike Huckabee is thinking about the implications of his rhetoric, helped by the realization he is not going to be President. It would be interesting to see how he acted as governor in this respect.

On a related point, Rick Santorum said that Congress can challenge the Supreme Court, citing the treatment of a certain abortion procedure. The difference there was as much of O'Connor replacing Alito, but that is something a President can do. It was also about Congress fine-tuning a provision in a way that four justices didn't think was enough to meet an earlier Supreme Court decision. But, again, that is something Congress can do -- pushback by applying court rulings narrowly or even directly violate them (using honest interpretations though hair-splitting is often possible here) and hope for change in the courts.

Critics of Citizens United, e.g., should be a bit careful about ridiculing Rick Santorum saying the country has certain ways to challenge the SSM ruling just because we like that ruling. There are ways; the test is the merits.

Unknown said...

In re Gov. Huckabee, there is a third possibility: He might sincerely think the Supreme Court "got it wrong" and thinks the time is right (or near right) for the court to overturn the "undue burden" framework of Casey, leaving the state interest articulated in that case intact.

T Jones said...

Wouldn't Huckabee proposing a constitutional amendment recognizing that fetuses have rights undermine his argument that they are already protected under the due process and equal protection clauses?
And DR, I thought the "applaud Huckabee" comment was irony or sarcasm, highlighting Huckabee's probably unintentional injection of himself into the historical debate about substantive due process's role in constitutional law.

Anonymous said...

"It's a more potent form of departmentalism than anything touted by Jefferson, Lincoln, or their modern successors."

I don't agree with that characterization. I think Huckabee's view is entirely consistent with Jefferson. Lincoln I'd need to think more about simply because his views were so heavily shaped by the civil war.

It may or may not be an accurate characterization of "their modern successors" depending on who you exactly have in mind.

Michael C. Dorf said...

1) Yes, sarcasm
2) Nothing Jefferson did as president came remotely close to directly challenging the Supreme Court. His version of departmentalism was fully within the later tradition: He pardoned people convicted under the Sedition Act and dropped the one remaining prosecution. But the assumption that the courts would have upheld the Sedition Act (and they would have) doesn't entail an obligation of the executive to enforce it, on the mild departmentalist view.

Unknown said...

I think he was saying that he would issue an Executive Order outlawing abortions in essence granting Constitutional protections to babies much like the Emancipation Proclamation outlawed slavery or involuntary servitude in essence granted Constitutional protections to blacks. At the time, the Supreme Court had a history of ruling that blacks were less than citizens, less than people. Similarly, the Court now has a history of saying that babies are less than citizens, less than people. I think this is a reasonable course that would require a new look into abortion and the rights of an insular minority that has zero ability to speak for, or protect themselves.

Michael C. Dorf said...

The Emancipation Proclamation was a war order, effective only in the Confederacy, and at least nominally in service of the war effort. It took an actual constitutional amendment to overrule Dred Scott throughout the Union and in peacetime.

Russell said...

While it's a bit of a tangent to the constitutional arguments that are the principal focus of the article, I would respectfully disagree as to Trump's national-versus-state insurance markets point. I heard him to be reprising the fairly standard GOP refrain that the way to reduce health care costs and increase access is to increase competition by allowing insurers to "compete across state lines." (See, e.g., this Reuters article from April about the Ryan-Hatch plan.)

To be sure, that would require federal preemption of state-level insurance regulation, but modern Republican states-rights doctrine frequently takes a back seat to their deregulatory impulses...

Joe said...

Prawfsblawg blog has a reply to this post.

Michael C. Dorf said...

I replied to Howard's Prawfsblawg post with a comment that reads: Howard: I think that the examples posed by Joe and Marty Lederman show why your and Lawson's framing of the issue has been generally rejected in favor of either judicial supremacy of the sort that Larry Alexander and Fred Schauer have defended or milder forms of departmentalism that we might associate with Larry Sager or Robert Post and Reva Siegel. The Lawson/Wasserman/Huckabee approach is like saying that a thief is entitled to steal so long as he understands that the courts will convict him of theft in cases that come before them. Yes, we can speak that way if we want to (and sometimes law & econ in the Holmesian bad-man tradition does) but it's much more straightforward to say that the thief breaks the law when he steals and the president violates the Constitution when he repeatedly enforces laws the courts have indicated are unconstitutional. If, for semantic purposes, you wish to say that the president has only prudential reasons to abide by judicial precedents (as opposed to judgments), fine, but they are extremely strong prudential reasons.