Thursday, March 22, 2018

A Latent Question in Zervos v Trump: Why Don't We See More Delayed Legislation?

by Michael Dorf

Earlier this week, NY State trial court Judge Jennifer Schecter denied President Trump's motion to dismiss or delay proceedings in the defamation lawsuit against him by Summer Zervos--a former Apprentice contestant whom Trump branded a liar in 2016 after Zervos publicly claimed that Trump had groped her without consent. Judge Schecter's opinion relies on Clinton v. Jones, which held that a sitting president lacks either full or temporary immunity from litigation for unofficial conduct preceding his taking office. In Jones, the Court left open the possibility that a different rule might apply in state court, because considerations of federalism and the supremacy of federal law, rather than separation of powers, would be in play. Judge Schecter concluded that the question left open in Jones should be resolved against any form of temporary immunity.

Judge Schecter's opinion makes two key points. First, she says that concerns about distracting the president from his official duties are the same in state court as in federal court; thus, the Supreme Court's conclusion that such distraction does not warrant full or temporary immunity in Jones carries over in state court. Second, Judge Schecter distinguishes cases finding that Supremacy Clause concerns warrant limiting the jurisdiction or remedial authority of state courts all involve fear of interference with the official functions of the United States; because Zervos has sued based on Trump's private conduct before he became president, those concerns are not implicated.

In the balance of this post, I want to consider some implications of a subsidiary argument that Judge Schecter makes. As the Jones Court itself did, she takes note of the fact that Congress has granted temporary immunity to members of the US armed forces during their service, so one can infer from Congress's failure to grant similar immunity to the president that it did not intend it. Jones has been on the books for over twenty years. Congress's inaction is thus telling.

But is it really? Given partisan considerations, one could see how, except in periods when one party controls the presidency, the House, and 60 seats in the Senate, there would be no political will to enact a provision granting the president partial immunity--even if an overwhelming majority of elected officials thought it a good idea in general.

Yet there's a pretty simple workaround. Congress could enact a statute conferring temporary immunity on the president, but make its effective date after the next presidential election. That way, members of the party that doesn't control the White House at the moment could vote for the bill without worrying that they are benefiting their political rivals.

Of course, it's possible that the reason Congress hasn't done that is that there is not sufficient support in Congress for temporary presidential immunity, regardless of party affiliation. But we still have the question why we don't see this sort of thing more often in other contexts. Creation of a new federal agency, increases in the size of the federal judiciary, and a host of other measures that might have a clear partisan dimension at any given moment can be enacted with a delay until after one or more intervening elections, so that, if they have bipartisan support in principle, they will not be scuttled based on partisan concerns about who would benefit in the short run.

The absence of this device (so far as I'm aware) is all the more puzzling, because lawmakers know how to delay implementation for other reasons. For example, the Affordable Care Act didn't go into effect immediately, to enable insurers, providers, employers, states, and other affected actors time to plan for its implementation. Meanwhile, the Constitution's 27th Amendment (which was proposed as part of a package with the rest of the Bill of Rights in 1789 but wasn't ratified until 1992) delays implementation of Congressional pay changes until after an intervening election, so that members of Congress will have to face the voters first if they want to increase their pay.

It is possible that I'm simply missing a batch of statutes that have been enacted with delayed implementation so that the enacting legislature will operate behind a veil of ignorance. If so, I would be grateful to any readers who could point me to examples.

Before concluding, I want to address two further points.

(1) Yesterday I was on air discussing the Zervos case on KPCC (the NPR affiliate in Pasadena, CA), along with Profs. Ben Zipursky and Josh Blackman (audio available here). The three of us agreed that, given Jones, Judge Schecter got it right. Prof. Blackman noted at the end of his remarks that he thought that post-Jones experience may call for a change by Congress and that it is clear that Congress could legislate a rule granting the president temporary immunity in federal court but that he has doubts about whether Congress could likewise so legislate for state courts. He also said that he thought I might disagree about his doubts about the state courts, and he was right about that. I do disagree.

Prof. Blackman said that Congress could grant the president temporary immunity in federal court pursuant to its power to control the jurisdiction of the lower federal courts, but noted that Congress lacks such a power with respect to the state courts. That's why he thought I might disagree: my forthcoming Texas Law Review article argues for relatively broad power in Congress to control the jurisdiction of the state courts in sub-constitutional cases. However, I don't think that a law granting the president temporary immunity to suits would be about jurisdiction at all. It would be a rule of substantive law, like the provision of federal law that grants service members relief from civil litigation during their service. That law applies in state court and so would a law protecting the president. If Congress has the power to enact such a substantive rule -- as the Court correctly assumed in Jones -- then it could be made to apply in state as well as federal court.

(2) During my remarks on the air, I mentioned that courts don't automatically accept interlocutory appeals, but indicated that there was a decent chance that the NY courts would accept Trump's appeal. In response to a question from the host, I then proceeded to discuss what would happen next if the appeals courts either rejected Trump's interlocutory appeal on the merits or refused to hear it. I may have thereby given the impression that I thought it likely that the NY courts wouldn't hear the interlocutory appeal. In fact I think it very likely they will.

As Prof. Zipursky pointed out in correcting the impression I may have given, the NY courts are considerably friendlier to interlocutory appeals than are the federal courts. Partly that's a matter of the difference in the wording of the respective statutes. Under federal law, interlocutory appeals are mostly discretionary. By contrast, under NYS law, an interlocutory appeal is as of right where, inter alia, it "affects a substantial right." Whether Trump's putative claim to temporary immunity from suit is "a substantial right" is not entirely clear to me, but on reflection I don't think it matters, because one way or another, I think it almost certain that he will seek and obtain an interlocutory appeal. The relative friendliness of NY courts to interlocutory appeals is as much a matter of attitude as it is of the CPLR text. I also think it very likely that Trump will lose on the substance of his interlocutory appeal but that the delay occasioned by it will work to his advantage.

The likelihood of that further delay confirms my earlier-expressed puzzlement about the Zervos lawyers' decision to sue in state rather than federal court, where there would have been no possible exception to Jones. More than 14 months have elapsed since the suit was filed. Likely another year or more will now be spent on the interlocutory appeal. The case could have gone to discovery already in federal court.


Shag from Brookline said...

Here in the northeast we are having a stormy Spring. But what about the upcoming "Stormy Summer"? This may call for a country song.

Joe said...

I thought Jenny was killed in the last season of the "L" Word.

(The judge has the same name as the character.)

Anyway, like I said the first time, my general inclination is to think there is some reason for choosing a certain venue. It might have been a bad reason, but figure there is one. So, that leaves us to wonder what it was.

Shag from Brookline said...

This post's reference {3rd paragraph) "that Congress has granted temporary immunity to members of the US armed forces during their service," brought to mind my contact with older lawyers when I started practicing law in the mid-1950s. Those practicing during the Great Depression were limited by the economy in their private practices. The economy started to recover in the late 1930s but as America's entry into WW II approached, this "temporary immunity" further limited private law practices until several years after WW II ended. There were requirements imposed on attorneys for the filing of appropriate affidavits in connection with such "temporary immunity" that perhaps continue presently, what with America continuing "at war."

Shag from Brookline said...

OFF TOPIC: At Mike's recent post on Linda Greenhouse's NYTimes column on the late Justice Scalia, I started the thread with this comment:

Shag from Brookline said...
Somewhat of a contrast to Greenhouse's column is:

"Antonin Scalia’s disruption of the Supreme Court’s ways is here to stay" By Richard L. Hasen at:

I anxiously await the reaction at the Originalism Blog to Mike's closing sentence.

10:02 AM Delete


That closing sentence reads: "More than anyone, we have Scalia to thank for killing originalism."

Today at the Originalism Blog Mike (I'm not Rappaporrt) Ramsey posts on Mike Dorf's post, with editorial comments that are very polite though not in agreement with some of Mike Dorf's comments. Makes me wonder, is there is a "Mugwump" version of originalism?

Ramsey had an earlier post on Richard Hasen's new book on Scalia, with a link to SCOTUSBLOG for an interview of Hasen that is most interesting.

Joe said...

Scalia's pal RBG was on Stephen Colbert yesterday; Hasen restated his concern about her "celebrity justice" status.

Shag from Brookline said...

Wearing judicial robes ages one. That was my take-away from the Colbert segment. At 85, RBG is two years my junior. In her exercise garb she looked much younger. As I watched RBG's exercise routine, I recalled a statement made by a paunchy elderly writer when asked in an interview if he exercised, responded, as I recall, "The only time I exercise is when I attend the funerals of my friends who exercised." I cannot recall the name of the writer, so I Googled this and came up with variations at this URL"

But the several names mentioned for making similar remarks did not reveal my source. But Mark Twain has a winner.

In any event, I perceive RBG's routine as quite impressive. And she wore a top with a message. Frankly, if I put in the same effort at exercise, why I wouldn't have the energy to comment at this and other blogs. Any volunteers to be my trainer?

But seriously, when Justices appear at a president's SOTU speech, isn't it silly that they wear their judicial robes?

John Barron said...

If you play 100 rounds of golf in 14 months (many pros don't play that often), you have time to respond to a lawsuit. Surprised that the judge didn't take judicial notice....

Shag from Brookline said...

Perhaps the judge has a legal recipe for "Mulligan Stew" and "FORE!"play. Anyway, there are competing musicals on the West and East Coasts: Respectively, "Stormy, Whether?" and "Summer Time." Add to this the Playboy Bunny's "I Love You, Porky." And maybe Andrew Lloyd Weber will come up with "Megalomelania!" as an updated "Evita."

Michael C. Dorf said...

Josh Blackman has posted an interesting response at . I agree with some of his points and disagree with others. I hope to elaborate next week.

Joe said...

Josh Blackman was on the Yick Wo v. Hopkins Landmark Cases (CSPAN) episode. One of the professors here would be an interesting talking head for one of the episodes.

Prof. Segall noted on Twitter he is having rotator cuff surgery (today, I believe). Good wishes.

Michael C. Dorf said...

Despite Eric's surgery, he'll have a post up tomorrow (but he wrote it already, so no congrats for superhuman feats)!

Shag from Brookline said...

Query: Did the need for Eric's rotator cuff surgery result from the many effective sliders he's thrown at originalism? If so, in the legal academy, this procedure will no longer be known as "Tommy John" surgery. During his rehab, Eric may enjoy Richard Hasen's new book on the late Justice Scalia.

John Barron said...

Eric "Bugsy" Segall is strictly batting practice. His only argument requires that he misrepresent originalism, essentially trapping it in amber in the days of Raoul Berger.

Shag from Brookline said...

Rumor has it that John's two knee replacements resulted from excessive praying since Raoul's demise in obeisance to John's faith in Heinz Varieties originalism.

John Barron said...

You keep going off-topic w/ your magnificent obsession, Shag.

Shag from Brookline said...

John, actually you top Heinz which only had 57 Varieties.