Monday, November 14, 2016

Trump's Abortion/Same-Sex Marriage SCOTUS Doublespeak

by Michael Dorf

In the immediate aftermath of the election results, I wrote that I was cautiously optimistic that a Trump presidency would be merely conventionally Republican awful rather than uniquely Trumpian catastrophic. The signs since then have been mixed. The selection of Paul Ryan's BFF Reince Priebus as Chief of Staff could herald a conventional tax-cutting, entitlement-program-slashing GOP era. However, three developments just yesterday suggest that Trump will spice up his conventional awful with his unique brand of horrible. One was the selection of white nationalist demiurge Steve Bannon as Chief Strategist.

A second is the inadequate response of Team Trump to the rash of hate crimes being perpetrated in their honor. In his 60 Minutes interview, Trump, to his credit, said "stop it" to his followers committing such acts, but this was diluted considerably by Trumpologist-in-Chief Kellyanne Conway's conclusion that Harry Reid's correct statement that Trump had "emboldened the forces of hate and bigotry in America" warranted not agreement but condemnation of Reid. Worse, Conway darkly suggested that forthright criticism of this sort could lead to "legal" consequences for Reid.

That brings us to the third element of uniquely Trumpian awful that was unleashed yesterday: the continued indications that Trump will use the tools of law enforcement to target his political enemies. Even if he ultimately decides not to prosecute Hillary Clinton (assuming President Obama does not issue her a blanket pardon before leaving office) because, as he told Leslie Stahl, the Clintons are "good people," Trump's continued flirtation with the possibility of political prosecutions will have a chilling effect on others.

Faced with so much jaw-dropping stuff in just one day, the national media will tend to pinball to the latest craziness, thus allowing Trump himself to effectively kill a harmful story by replacing it with a new harmful story. In ordinary times, these harmful stories would have a cumulative impact, but as we saw during the campaign, that's not how it works with Trump. Accordingly, it falls to those of us with particular expertise to dwell on those Trump outrages that would otherwise go unnoticed because they ride in the slipstream of higher-profile outrages.

Let's talk about Trump's 60 Minutes answers about the Supreme Court.

When asked about abortion, Trump said he was pro-life, that he would appoint pro-life justices, rambled off about the Second Amendment, and then said that overturning Roe v. Wade would mean that abortion regulation would differ by state, so that women living in states that outlawed abortion could obtain abortions by traveling to states where abortion is legal. Is that right?

Even assuming that any particular woman has the resources to travel for an abortion, only maybe. Overturning Roe on the ground that there is no substantive due process right to abortion would in the first instance send the issue to the states, but one would not expect a truly pro-life president to leave matters there.

A pro-life president would sign legislation from a pro-life Congress banning abortion nationwide. It's possible that at that point one or more justices who had voted to overturn Roe would vote to invalidate the federal law as exceeding Congress's enumerated powers. Justice Thomas is a plausible candidate for such a view. But it's also possible that the Court would sustain the federal law, at least as applied to "abortions using materials that have traveled in interstate commerce." Or perhaps Congress would pass a law forbidding crossing interstate lines for the purpose of having an abortion. It's possible to imagine a justice who would reject a blanket federal abortion ban as beyond the Commerce power sustaining such a law. So whatever Trump's true views about abortion and the Constitution (if he even has any), appointing pro-life justices would not necessarily result in abortion being legal in some states and illegal in others.

Meanwhile, later in the same interview, Trump was asked about same-sex marriage. Here is the relevant portion of the transcript:
Lesley Stahl: Well, I guess the issue for [LGBTQ groups] is marriage equality. Do you support marriage equality? 
Donald Trump: It-- it’s irrelevant because it was already settled. It’s law. It was settled in the Supreme Court. I mean it’s done. 
Lesley Stahl: So even if you appoint a judge that-- 
Donald Trump: It’s done. It-- you have-- these cases have gone to the Supreme Court. They’ve been settled. And, I’m fine with that.
Trump's answer makes no sense. Abortion was "settled in the Supreme Court" 43 years ago. Marriage equality was settled a year and a half ago. Yet Trump thinks (or at least says) that the very recent decision is done whereas the much older one is ripe for re-examination. Notice how Stahl attempts to pin Trump down by pointing out that the sorts of justices Trump wants to appoint in order to overturn Roe would also be inclined to overturn Obergefell, but the journalist's imperative to move on to the next question enabled Trump to evade the issue.

Now to be clear, I think it's logically consistent to think that laws banning same-sex marriage are unconstitutional whereas laws banning abortion are valid. And arguably the reliance interests are different. So it's possible that the Trump Court would overturn Roe but leave Obergefell in place. But at the very least there's an issue here. Whether Trump realizes that his approach to judicial nominations puts marriage equality at risk and is being deliberately misleading or simply doesn't understand the stakes is really beside the point. People who care about marriage equality even if they don't care about abortion rights have good reason to be alarmed by Trump's SCOTUS plans.


Joe said...

Follow-up questions. They are a thing, okay?

I don't really think he is truly "pro-life," but someone who honestly is might think for various reasons that sending it back to the states [not a nation-wide ban] is the best policy realistically. And, settled law? Many use that in a situational way.

Trump, by the way, actually supported Planned Parenthood during the campaign. One thing states have been doing is targeting PP, even trying to defund them. Courts have held this was not allowed in certain respects given current law. Congress under "settled law" can change said law to single them out.

And, Thomas did when the national ban of a procedure was up for decision in passing noted some sort of federalism claim was not decided. But, if they wanted, they could have decided it. After all, even though no one but him cared, they heard an argument regarding privileges or immunities when guns was involved. OTOH, that would have on principle resulted on the law being struck down, if you counted the votes. Anyway, a lot of this stuff will be fine on that level, including overly restrictive laws involving D.C. or funding issues.

egarber said...

I instantly thought the same thing when I saw that last night. I mean, if "settled law" is the standard, Roe is more settled by multiples, given the elapsed time and constant affirmation in the courts. It really is a "super-precedent."

I hate to throw potentially novel ideas out there. But I saw a write-up somewhere that the president could possibly appoint Garland in the absence of Senate action - in that at some point, the Senate has waived its role. Is there anything to that?

David Ricardo said...

With respect to the opening part of this post, it is important to understand how Trump’s candidacy was so effective and so dangerous in unleashing the forces of bigotry, hatred and hostility in the white population towards anyone and everyone who is not like them.

Consider Germany in the 1930’s. Jews had lived in Germany for centuries and in the first third of the 20th century were well regarded and well accepted. So what caused an overnight change that produced the worst anti-Semitism the world has ever seen? Well, people don’t change that quickly. The answer is that hatred of Jews in Germany had always been there, but it had not outlet. The elevation of the Nazi’s to power provided that outlet and the pent up anger of centuries erupted into the Holocaust.

The same thing exists in America. We are not the nation we thought we were. The evidence is that large number of white citizens, and a huge majority of non-urban whites harbor intense hatred of minorities and ethnics. These are not people who join the Klan, but go about their daily lives with the disease of prejudice festering inside them. Finally the Trump candidacy gave them an outlet, made it respectable to express their vile dislike of the ‘others’. Trump didn’t create racial/ethnic hatred, he embraced and unleashed it for political purposes.

Yes, there will be Trump supporters who argue they are not part of the bigoted mass. But these same people went to rallies and/or supported a candidate when the audience openly expressed its racial/ethnic hatred. Standing silent is not rejection, it is assent. If any of us were at a rally that erupted into bigotry, we would leave even if the rally was supporting a cause we believed in. One of the finest moments of George H. W. Bush’s presidency was when he denounced the NRA when its rhetoric went to far.

As long as this vile man remains in office the threat exists that an unrestrained hate mob will split the country to the point where it can never be healed.

Shag from Brookline said...

I'm trying to imagine President Trump with a "garland" such as this as he ascends to his towering throne. Will the real Donald J. Trump please stand up? Is it:

(1) The campaign Trump, or

(2) The Sixty Minutes Trump, or

(3) Whatever?

egarber said...

Here is the column sparking all the reaction around my question:

Joe said...

The silence means consent argument regarding Garland is a dubious thought experiment that I doubt Garland himself would accept as sensible. But, you know, shrugs.

Thinking outside the box, Trump should simply re-nominate the guy. Show him to be his own man, act of statesmanship that would immediately legitimate him in some quarters, maybe even get a few Democrats in the process to work with him on something. It is not like Trump probably cares about ideology on the courts.

Unknown said...

I too had written a blog thinking that this may be a conventional Republican crapfest and that the democratic process be respected. But increasingly I think he may be the biggest threat to Democracy we have ever seen. I think there is a moral obligation of progressive liberal citizens to get organized but given the perilous state of the political left this may have to outside the constraint of party politics. Quite where and how is open to debate. But a unifying opposition figurehead is urgently needed to reclaim the country. Read my blog:

Shag from Brookline said...

Regarding Trump's 60 Minutes comments on abortion being a matter for the states, back in 1957 I did research on MA law on abortion, concluding at the time that this was basically a medical decision involving the health of a woman. It so happened that this research related to a young woman resident in a state that strongly prohibited abortion under any circumstances. I became concerned with possible violations of law in the nature of conspiracy to violate the laws of another state that might involve the young woman, her parents with whom she resided, MA physicians that might advise and treat her AND her attorneys. I could not readily find any definitive case law and under the rush of time circumstances, the abortion took place based upon medical advice. I imagine pro-life forces might take steps to close what they might consider a Trump interstate loophole, as Mike suggests. But it would seem that the economic barriers to the interstate loophole would not impede women of wealth, whether Republican or Democrat, who profess to be pro-life for others.

Shag from Brookline said...

Establishment Republicans in Congress, together with Democrats, may serve as checks and balances on potential Trump craziness. The non-political appointees portion of the Executive Branch may serve as a form of checks and balances as well per David Leonhardt's NYTimes post suggesting that these permanent employees stay on, tying in recent comments by NYTimes' conservative columnist Ross Douthat. Some pundits have looked back into history for a presidential model that Trump might fit, some coming up with the "populist" Andrew Jackson, who nominated CJ Roger Taney to the Supreme Court. We need checks and balances as well as keeping our fingers crossed.

Joe said...

Andrew Jackson had military and political experience before being President that went back over thirty years. AJ also had a "kitchen" Cabinet. Trump should have an interesting bunch of advisers there.

Jim said...

But it's also possible that the Court would sustain the federal law, at least as applied to "abortions using materials that have traveled in interstate commerce."

Materials that have traveled in interstate commerce wasn't good enough for the current court to uphold the PPACA mandate, right?

Shag from Brookline said...

What if coat hangers or similar items used in the past that have only traveled intra- state? Is that when America was great?

Shag from Brookline said...

Andrew Jackson's Indian Removal Act hopefully will not be adapted for Muslims by the Bannon, strike that, Trump Administration.

Michael C. Dorf said...

Lots of interesting stuff here. I'll just reply briefly to Jim's question: Five justices found that the PPACA was beyond the scope of the Commerce Clause in NFIB v. Sebelius because it was a mandate, not because a "nexus" such as reliance on goods moving in interstate commerce was deemed an insufficient predicate for regulation. Statutory interpretation cases suggest that there are limits on what can be accomplished by a statutory nexus, but that wasn't at issue in the Obamacare case.

GarcĂ­a said...

Please note that part of the reason that continued scandals did not have a cumulative impact on Trump's campaign was that Hillary Clinton was on the other side. That is, a presidential campaign is a confrontational process.

Let's see how it plays out when it's simply the President vs the press.

Shag from Brookline said...

Larry Summers' WaPo OpEd "Trump can't repeal the law of economics" covers infrastructure and other areas of Trump's campaign promises, explained in terms that some of Trump's voters should have understood. Trump in his private businesses termed himself the King of Debt, which may serve him on the throne of the presidency. But can Trump rely upon bankruptcy laws as with his casinos? Are establishment Republicans in the Republican controlled Congress prepared to accommodate the debt that may result from Trump's campaign promises?

Garcia, there was such a cumulative impact for the approximately 2 million popular votes that went to Hillary in excess of Trump's popular vote. While Trump won the prize with the electoral vote, Trump in his own mind may be unhappy about being the popular vote loser by such a vote in losing to a girl, something The Donald may dwell on. As for some, perhaps many. of Trump voters, they apparently did not care about the Trump scandals, in their admiration of the Trump puppy.

Joseph said...

I don't think we can impute knowledge or sincerity to Trump. He will appoint a conservative Justice if he feels compelled to do so. What that conservative Justice thinks about substantive due process or stare decisis will not guide Trump's decision, I think it's safe to conclude. I can't start to pretend that Trump is credible or sensible just because he was elected!

David Ricardo said...

What a difference a week makes.

A week ago the topic of conversation was which programs could Hillary get passed.

Now the topic of conversation is what does the legal framework look like in a post Roe v Wade world.

Lose Ginsburg, Bryer and Kennedy in the next four years and Roe goes down 7 - 2.

Greg said...

While I agree that Thomas and probably Alito don't care about stare decisis with regards to Roe, I suspect that Roberts does, because he sees that the door swings both ways, and doesn't like being viewed as hyper-partisan. He would vote to substantially weaken Roe, but I don't see him voting to completely overturn it.

Unfortunately, with 4 new hyper-partisan Justices, that only means Roe goes down 6-3.

A court with Roberts in the center would be conservative, but stable, because he seems to believe in trying at least to appear not to be partisan. If Roberts ends up on the liberal side of the court with Alito at its center, the impact will be dramatic as huge swaths of law are overturned.

Jim said...

Michael Dorf,

I've read a couple of items today putting forth the idea that the Senate's inaction on the Garland nomination is in effect consent on the "legal" basis that "it is altogether proper to view a decision by the Senate not to act as a waiver of its right to provide advice and consent. A waiver is an intentional relinquishment or abandonment of a known right or privilege."

Gregory L. Diskant

Any thoughts on this?


Shag from Brookline said...

I haven't read the article that Jim provides a link to, as yet. Does the Constitution specifically provide for waivers of any of its specific provisions? Has the Court ever ruled on the matter of a waiver that is not specified in the Constitution of a specific provision? Waivers may have developed as part of the common law in the "old country," but was common law incorporated into the Constitution? If the Senate "inaction" constitutes a waiver, with the lapse of time did the President by his inaction in not having Garland sworn in constitute a Presidential waiver, also not specified in the Constitution?

What would originalists have to say about this? New, new originalism might recognize a gap and call for construction as a tool for interpretation. Even if sworn in, Garland would have a conflict and we most likely would have a 4-4 vote, unless Justice Kennedy decided to swing once again to save the Court from itself.

Joe said...

I have this idea that Planned Parenthood v. Casey with a Trump Court would be like various things (like PPACA) some pale version of itself.

I think some "health" exception would be retained. I don't think we will be back pre-Roe where Texas didn't even have a health or rape exception (maybe it selectively had one sub silento). As Shag noted, a strong "health" rule can be rather protective here. U.S. v. Vuitch was a pre-Roe case that defined that term broadly.

Certain blue and purple states have a state protection of privacy that will protect abortion rights. Others and perhaps certain U.S. territories (Guam wanted back in the day to pass a very restrictive law) will have very restrictive laws. Expect greater use of abortion pills with telemedicine. Again, who is to say? As I said in the first post-election thread, this is going to repeatedly be a matter of triage.

Shag from Brookline said...

I have no idea if and how SNL will continue with Alec Baldwin's Trump role. The public has been exposed to many faces of The Donald during the campaign and after his EC win. In fact, the public has been exposed to many faces of The Donald pre-his campaign. Who knows which face of The Donald will surface at any given time. SNL might feature "The Many Faces of Donald J. TrumP" to catalog them for the public to identify the different faces that surface during his administration. Will the real Donald J. Trump stand up? Has he ever? How can we be sure? Did anyone other than myself note a similarity between The Donald's face with the Mexican President and with President Obama? Might that be The Donald's face when he meets with Putin? I also noted that in the 60 Minutes interview, unlike sit down interviews with journalists earlier, The Donald Did not Leslie; in fact Lesly interrupted him (but rather politely).

Joe said...

Prof. Dorf took part in a conversation about Trump here:

Shag from Brookline said...

The Donald's tweets reaction to the popular vote Clinton advantage obviously suggests it's a a burr under his saddle, especially with his pre-campaign comment on the EC. If he spent more time in CA and NY, perhaps he would have spent less time in states that provided his EC victory. What will The Donald tweet if the Clinton popular vote advantage approaches 2 million? Which The Donald face will we see? Which face will The Donald see when he looks in a mirror?

Shag from Brookline said...

Another posible burr under The Donald's saddle may be VP-Elect Pence's battle not to produce his emails as Gov. Might they disclose some things negative of The Donald? With The Donald's email pursuit of Hillary, would it be be double-speak for The Donald not to press for the release of Gov. Pence's emails? Pence is heading the transition team. It's possible some of those emails might be leaked in an embarrassing manner. Might some of those emails relate to the Cruz Canadacy?