Friday, December 29, 2017

Politics and Constitutionality

By Michael Dorf

For this final post of 2017, I just want to direct readers to my latest essay on Verdict, where I argue that insofar as the new tax law punishes blue states and their residents, it is unconstitutional--even as I acknowledge that it would be very difficult to prove the claim in court. Here I simply want to add that I am aware of a potential critique, according to which it is never illicit for Congress to favor residents of the states with a majority of representatives; that's just politics, the critique goes; if you want more benefits for your state, win more elections.

I would say three things in response. First, there's a difference between members of a legislature looking out for their own constituents--which we expect--and looking to punish voters in jurisdictions that voted for the minority party--which we have not hitherto expected. Second, as I said, I realize that this distinction in principle will be very difficult to apply in practice, which is why I expect any such claim to fail in court. And third, as I say in the column, failure of an objection in the courts does not mean the objection is invalid; it just means that there are institutional limits to where the claim can be pursued.

Happy new year and thanks to all the DoL readers.


Shag from Brookline said...

Surely the new tax law's low-SALT diet may lead to political hypertension.

I especially enjoyed the Verdict column. It and Mike's post are good follow-ups to Neil's recent post and its thread on the new tax law. As to the issue of constitutionality, consider the impact of the new tax law on the letter and spirit of the Constitution's Preamble:

"We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America."

David Ricardo said...

A hearty second to Shag's compliments of Mr. Buchanan, Mr. Dorf and Ms. Colb on their posts. We may not agree with what they say but what they say is always thought provoking and makes us all rethink our positions, a major contribution in itself. And Shag's commentary, particularly his wry observations like the relationship between SALT and political hypertension are always enjoyable.

As part of that disagreement there is concern about the strategy of the legal challenges to the Trump administration in the area of emoluments and the disparate impact of the SALT limitations in the new tax legislation. This is not because the legal arguments and analysis are not sound, but because they are, as Mr. Dorf admits at least in the area of the SALT issues, unlikely to succeed. The same can be said about the emoluments issue; regardless of its legal merit it is simply not a viable strategy for taking on Trump.

The problem with pursuing legal challenges is that it takes away resources and attention from what is needed for a successful defeat of Trumpism, i.e. winning elections. If sanity is to prevail it will have to be at the ballot box, it will have to be that for politicians, supporting Trump and his agenda will lead to electoral defeat.

This is hard work. The Alabama victory of Doug Jones didn't just happen because he was on the ballot and his opponent was an egregious sexual assaulter. It happened because huge resources were devoted to getting out the vote, to explaining to Alabama residents why Jones was okay and Moore was not, and for the senior Senator in the state to come out against Moore. If Dems are to replicate the Alabama success they need to concentrate on voting, not on court challenges no matter how legally correct those court challenges are.

Shag from Brookline said...

David, those huge resources in Doug Jones' campaign against Moore resulted from the raising of voices against Moore. Keep in mind that the Constitution does not include an explicit "Sanity Clause" (even by stretching the 1st A's religion clauses during this December holiday season; with a h/t to Groucho). Imagine if there were no legal challenges to Trump regarding the Constitution's Emoluments clauses. Democrats would have been considered Wooses. Corruption has to be challenged not only by We the People but in the courts. While they may not initially succeed, over time that's how progressivism made inroads. And there is the court of public opinion that can rule on the insanity of the Trump presidency.

Shag from Brookline said...

Regarding the futility of lawsuits because their issues might be unlikely to succeed, consider the many lawsuits filed and tried by Thurgood Marshall/NAACP getting to Brown v. Bd. of Educ. (1954, Unanimous). Consider the route to the 19th A. Consider the lawsuits of State AGs challenging the Trump Administration in its very first year. The 1st A's speech/press clauses has informed the public on Trump's presidency from day one. During the 2016 campaign, candidate Trump warned that if Hillary were to win, she would be tied up immediately and for years with congressional investigations. Was Trump self-prescient in this regard? And this has been taking place with Republican control of both houses of Congress. How will Republicans react as we get closer to mid-terms? Sen. Rubio recently lamented that the new tax law's business benefits may have gone too far. As the new tax law's provisions are distilled, will its proof age and mellow or will it be harsh moonshine in daylight?

Joe said...

All things with constitutional problems won't be handled by the courts -- someone (maybe it was Dorf) spoke of under-enforced constitutional law in the courts. Thus, many constitutional principles are enforced by legislative action (e.g., the PPACA advances certain things there), not the courts. A "presumption of constitutionality" rule is more akin to a "judicial review" rule. The thing still might be unconstitutional, just not enough for the courts to override.

And, there are various means of enforcing things other than the courts. The same can be said about things like impeachment -- people were upset Bush et. al. was not impeached. There were reasons. Also, they were checked (up to a point) in other ways, in part because people felt they committed in effect impeachable offenses (I say "in effect" largely since many might not think of it that way).

David Ricardo said...

It is not clear that the use of the courts to pursue the goal of equal rights is sufficiently analogous to citizen litigation on the emoluments issue. There are important differences, among them

1. Standing was not an issue in discrimination against African Americans. Standing is in any citizen attempt to charge a President with violations of the Constitution.

2. Violation of the Constitution provision against accepting emoluments can be remedied by the specific Constitutional provision for impeachment. It may be that Constitutionally that is the only remedy.

3. Litigation in the area of Civil Rights was a decades long process. Litigation against Trump will be moot in no more than seven years from now. That time period is less than the time it would take litigation to go through pre-trial activities, a trial and appeals.

4. There is a specific remedy for violation of civil rights, the violator must stop and may have to pay damages. Assuming a final court determination was that Trump did violate the emoluments clause, what is the remedy?

It is true that there were some litigation successes in the Civil Rights movement, more so for LGBT rights than prohibition against racial discrimination, the most significant and important being Brown with respect to race and Obergefell (and related cases) for rights for the LGBT community. . But note that Brown was against a local school board and did not charge federal officers with violating the Constitution and the courts have not ruled that the LGBT community has the same rights as other minorities under the 14th Amendment. The major successes in implementing Civil Rights with respect to race has been legislative and the resulting litigation to comply with that legislation.

This is not to say that litigation should not be pursued, but to expect it to be successful seems unlikely with today's courts and to expect it to sway public opinion assumes that the public understands what 'emoluments' are. Where I live the general public would not know the term but would guess that 'emoluments' are what is added to transmission fluid to keep it lubricating.

To go back again to Marx (Groucho, the one who really knew how the world works, not Karl who didn't), when a magazine called Confidential (an earlier incarnation of rags like The National Enquirer) suggested that Groucho liked girls (he did) and that his quiz show might be fixed (it wasn't) he took pen to hand to write Confidential and say

“Gentlemen: If you continue to publish slanderous pieces about me I shall be compelled to cancel my subscription. Sincerely, Groucho Marx”

Need more, read the correspondence between Groucho and Warner Bros. when Warner threatened legal action against the Marx Brothers for copyright infringement by the Marxes in their movie A Night in Casablanca which Warner felt possibly infringed on their IP rights for the move Casablanca. The Groucho letters are now in the Library on Congress. Citizen suits against Trump for violating the Constitution even if the violations can be proven are likely to be DOA.

Pragmatism trumps Idealism (pun intended) and as an aside, you can't fool me, there ain't no Sanity Claus

Joe said...

1. There were standing issues raised in certain cases where some sort of racial discrimination and the like was involved. I am aware of, e.g., of one or more cases involving housing or school policy where that blocked relief.

2. Impeachment can be a remedy for any number of acts done by those who can be impeached. A federal judge can be impeached. If a federal judge blocked a newspaper from viewing a trial, however, that doesn't stop using the courts to deal with it. Also, impeachment is rarely used -- it's like saying an amendment is a means of dealing with something. It's largely hypothetical, tbh. Other means are in place too.

3. The Supreme Court last term dealt with litigation arising in government official action arising from 9/11, even though the people aren't in office any more. It won't suddenly be moot after seven years. Anyway, the problem arises continuously. People in office for limited terms repeatedly are subject to court action. It's an important check even if the person is out of office in less than eight years.

4. Dorf can answer but various discussions of the case [and gather the opinion itself] explains the relief requested. A major thing asked for here, as I understand, is discovery of information regarding Trump's finances. Also, he can be required to sell the property or whatever. Money damages might be available if the violation hurt the parties too.

The courts already have repeatedly charged Trump with violations. They repeatedly provided judgments for gays and lesbians, even if only some lower scrutiny [and at least one court said heightened scrutiny] was involved. Courts can only do so much but they can do a decent amount. It's a balance.

Shag from Brookline said...

Standing is not specifically provided for in Article III or any other provision in the Constitution. Many scholars have questioned the Court's standing standards. Here's a link for those interested:
Mike, Leah, Daniel and Jed made strong arguments for standing in Crew v. Screw, their essays being available at Take Care, as well as in amici briefs some of them participated in. They expose the weaknesses in Judge Daniels' decision not only regarding standing but other issues as well. I assume an appeal to the 2nd Circuit will be filed. There are other emoluments cases pending in other Federal District Courts. Emoluments can result in corruption. The Republican controlled Congress has taken no action or foreign emoluments. But One the cases pending includes a number of Democrat Congressmen as plaintiffs. Failure to address and challenge the emoluments issues would be seen as a "win" by Trump and his ilk. David, I'm not accusing you of being of Trump's ilk, but the issues involved are no DOA. Crew v. Screw and the other cases are still pending. Eventually the issues will get before SCOTUS, unless otherwise mooted.

While there is no specific "Sanity Clause" in the Constitution, consider the Preamble quoted in mu initial comment on this thread.

David, regarding what the public where you live may know about emoluments, perhaps a neighbor of yours might be on Trump's short list of judicial nominees. And principle trumps Trump (aka the "unprincipled")..