Wednesday, September 25, 2019

UK Supreme Court Deftly Relies on an Effects Test Rather than a Purpose Test, But Congress Can and Should Examine Trump's Corrupt Motive

by Michael C. Dorf

Yesterdays' unanimous ruling by the UK Supreme Court was breathtaking in its rebuke of PM Boris Johnson for proroguing Parliament. Technically, the Queen, not the PM, prorogued Parliament, but as paragraph 3 of the judgment notes, she did so pursuant to a century-old practice by which the sovereign acquiesces in a PM's request to prorogue. Accordingly--and properly in my view--the judgment treats the case as posing the question whether the PM, not the Queen, acted lawfully. The answer was an unequivocal "No."

In fact, the high court answered four questions--all against Johnson--to get to that bottom line: (1) Did the challenge pose what we here in the US would call and what the judgment in fact calls a nonjusticiable political question? Answer: Nope; it's justiciable. I'll have a fair bit to say about this aspect of the judgment, along with some comparisons to SCOTUS political question doctrine in my Verdict column next week.

(2) The court next asked what legal standard governs the question whether proroguing is lawful. Its answer based on the principles ingredient in the UK's so-called unwritten constitution: It is "unlawful if the prorogation has the effect of frustrating or preventing, without reasonable justification, the ability of Parliament to carry out its constitutional functions as a legislature and as the body responsible for the supervision of the executive."

In point (3), the high court determined that, given the resulting cramped timetable for Brexit, Johnson's request violated that standard. And finally, in point (4) the court asked what remedy to give. Its answer was to declare the action null and void, so that Parliament remains in session.

As noted above, I'll have much more to say about point (1) (comparative political question doctrine) in my column. I may return to point (4) in a later essay. For now, I want to focus a little attention on what I regard as a wise decision by the Court in points (2) and (3): to focus on effects of the attempted prorogation rather than on Johnson's illicit purpose, even though an obvious implication of the Court's analysis is that Johnson's purpose was illicit.

Paragraphs 15-22 recite the record that Johnson created to foster the illusion that the prorogation was not for the purpose of preventing Parliament from enacting legislation blocking a no-deal Brexit. As the Court explains in paragraph 53, one ground on which two plaintiffs challenged the prorogation was Johnson's motive; they alleged that Johnson was proroguing parliament so as to be able to make to the EU a credible threat of a no-deal Brexit--like a driver in a game of chicken throwing his steering wheel out the window. While that might be a rational negotiating tactic, it nonetheless is improper for the PM to recommend prorogation to the Queen on the ground that he wants to prevent Parliament from acting contrary to his wishes, even if in doing so he is ultimately trying to improve the UK's position in international affairs.

Yet the Court did not reach the motive question. Indeed, in concluding that Johnson's stated reason for prorogation--to allow work on the Queen's speech--was inadequate, the judgment drew a sharp distinction between an inadequate reason and an illicit motive. "We are not concerned with the Prime Minister’s motive in doing what he did. We are concerned with whether there was a reason for him to do it." And, the Court concluded, there plainly was not. Work on the Queen's speech typically takes four to six days, which cannot possibly provide a reason for a prorogation lasting five weeks. And because those five weeks would occur during the critical runup to the Brexit deadline, prorogation would certainly frustrate the ability of Parliament--as the sole body elected by the People--to deliberate about and make crucial decisions in a critical time.

In one important sense, the prorogation judgment mirrors our Supreme Court's judgment in the Census case. Chief Justice Roberts does not say there that President Trump or Commerce Secretary Ross had an illicit motive for seeking to add a citizenship question to the census. Instead, he says that the Secretary's stated reasons do not withstand any serious scrutiny in light of the record evidence that was before him. "Reasoned decisionmaking under the Administrative Procedure Act calls for an explanation for agency action. What was provided here was more of a distraction."

To be sure, a reasonably well-informed observer will infer illicit motive from actions taken for clearly inadequate or illogical reasons. If the stated reason makes little sense, then unless the actor is a fool, the stated reason is likely a pretext for an illicit one. Nonetheless, there are prudential reasons why courts will hesitate to say that the head of government is a bad actor.

But there are two limits to that concern. First, sometimes judicial failure to recognize an illicit motive is an abdication of judicial duty. The performance of the SCOTUS in the Travel Ban case is an illustration. The Court was so concerned not to effectively "denounce the [president's] statements" that it naively accepted a fantastical account of the reasons for the ban.

Second, although courts sometimes prudently decline to find that a powerful political actor has acted based on an illicit motive and instead simply note that the stated justification for a policy fails to justify it in fact, no such limit applies to political actors themselves. Thus, as the impeachment process unfolds in Washington, it is perfectly proper for House members to ask not just what Trump pressed Ukrainian President Volodymyr Zelensky to do, but why Trump pressed him to do it.

There is usually nothing wrong with the US president urging the leader of a foreign state to investigate corruption, but if the US president focuses on one particular claim of corruption involving a family member of a political rival while showing no interest whatsoever in combating corruption elsewhere--indeed, while essentially inviting his own corruption by operating hotels that profit from foreign business--then ordinary Americans and House members are entitled to draw two conclusions regardless of what a court might conclude: (1) that the US president does not care about fighting foreign corruption; and (2) therefore, he has an ulterior motive, the obvious one here being to use the leverage of the official powers of the presidency to pursue his own personal political advantage.