A breaking-news emergencies Constitutional Crisis Hotline podcast with Julie Suk (Apple link here) right after the oral arguments in the Biden Student Debt cases: Nebraska v. Biden and Dept of Education vs. Brown, joined by:
And Nestor Davidson, Albert A. Walsh Chair in Real Estate, Land Use, and Property Law; Faculty Director, Urban Law Center.
Jed explains his amicus brief (and essay proposing an “Emergency Question Doctrine” to limit the Major Question Doctrine), which Justice Kavanaugh mentioned in oral argument, linked here.
I think our bottom line is that SG Elizabeth Prelogar was so outstanding on standing, she may have snatched victory from the jaws of defeat, especially on MOHELA and Missouri, the best case for the plaintiffs. But we agree that, other than Justice Barrett, the other conservatives seemed only mildly concerned by these murky facts. So it looks like five or six Justices get to the merits and if they do, it is clear they would strike down the program — but standing is still far from clear, and maybe Prelogar persuaded Barrett enough for Barrett to pull another conservative with her?
A conversation about presidential power over war and foreign policy coincides with the one-year anniversary of Russia’s invasion of Ukraine, Feb. 24th. A veteran of four administrations’ foreign policy teams, Yale Law professor Harold Koh, and Fordham Law colleagues Martin Flaherty and Tom Lee connect both topics: the Russian invasion, the history of presidential power, and the overlapping questions of national security and the risks to democracy from the outside – and from within the Oval Office. Link here to Apple Podcasts.
Harold Koh is a visiting professor at Fordham this spring, and Sterling Professor of International Law and former Dean at Yale Law School. He has served under four US presidents: in the Reagan DOJ, the Clinton State Department, the Obama State Department, and recently as Senior Advisor to the Biden State Department. He is author of the book “The National Security Constitution,” and discusses his update to the book, “The 21st Century National Security Constitution” (forthcoming 2023).
Tom Lee is Leitner Family Professor of International Law at Fordham. Tom has a forthcoming book, “Justifying War,” and he also has extensive experience in the U.S. military in intelligence and in the Defense Department as special counsel.
I suggest a name for a common unreliable, error-prone, often misleading originalist method:
Control-F is the search function. Just search for the word you hope to find, then copy-and-paste the passage without sufficient context. For constitutional law these days, that passes for “historical evidence.”
These appendices tracking the use and misuse of sources by the unitary executive theory are for “The Indecisions of 1789: Strategic Ambiguity and Inconstant Originalism,” U. PA. L. REV. (forthcoming March 2023), and they also serve as references for “Why Article II Did Not Include Removal.”
Contents: Appendix A: Misuses in “New Light on the Decision of 1789” (2006) *Misused Sources on Events May-June 1789 *Misused Sources on Events July-Sept. 1789 Appendix B: New Errors in “Removal Revisited” (forthcoming Harvard Law Review 2023) (Submitted manuscript, spring 2022) Appendix C: Repeated Errors from 2006 in “Removal Revisited” (2022) Appendix D: Misuses in Other Publications (Imperial from the Beginning) Tables on First Congress by Votes and Interpretations
Last week, with the outstanding help of Brian Pandya of Duane Morris, cc’ed here, I filed an amicus brief in the two Biden Student Debt cases scheduled for argument Feb. 28 (Biden v. Nebraska and Brown v. Department of Education).
I support broad student debt waivers and long-term reform. However, in a constitutional democracy, these reforms must be done the right way, either by legislation directly or by past statutes that delegated this broad power to the executive branch. The Biden administration clearly used the Covid emergency as a pretext to circumvent procedural requirements and to create a program far broader than the Covid explanation, when causation was required under the statute; and then, knowing that the program was likely to lose if challenged by plaintiffs in the courts, they excluded or reduced benefits from the program to 2 million Americans. And yet the Department of Education still failed to dodge their standing problem, as demonstrated these two sets of plaintiffs (the states and the private plaintiffs who were denied
The three main arguments of the brief are:
1. Broad interpretation of standing is important for the rule of law. The Biden administration’s sudden self-serving argument for “immediacy” of injuries, extracted from a Scalia footnote from three decades ago, is a dangerous change from the established rule of “fairly traceable.” It is inconsistent with precedent, and inconsistent with the indirect-causation standing rules that allowed progressives to challenge the worst policies of the Trump era (the Muslim Ban, the rescinding of DACA, the citizenship question on the census, the Emoluments Clause litigation, among others).
2. The abuse of emergency powers is dangerous, and even if one supports this policy, it must follow the rule of law, and not set a precedent for worse abuses of emergency powers.
3. Balancing the Imperial Executive with the Imperial Judiciary with a more modest “emergency question” doctrine:
The new version of the “major question doctrine” (the new “clear statement”) is the wrong approach to emergency powers and to judicial aggrandizement generally. Congress has to use broad and unclear delegations to give the executive branch appropriate flexibility to respond to emergencies, and a clear statement rule would undermine the federal government’s ability to rely on existing statutes or to rely on new statutes that have to remain open-ended. I suggest an alternative that balances the problem of the Imperial Executive with the problem of the Imperial Judiciary.
This is what I call the “emergency questions” doctrine, continuing the more established common sense parts of the “major question” doctrine:
A. purposivism over narrow texualism;
B. no Chevron deference to the executive branch.
C. It replaces the extreme “clear statement” rule (which I call the MQD 3.0) with a focus on the means-ends fit as a check against pretextual and overbroad uses.
The amicus brief is here:
I tried to warn the Biden administration of these problems early on, when there was still time to fix them, in this essay in the Atlantic, Sept. 4th, 2022:
I think his answer is “no, even if he is being hopelessly naive, and he is standing up on principle when those principles have some deeply flawed assumptions and obvious slippery slopes towards judicial aggrandizement.” And he’s probably right.
As I note here, his “rosebud” critique of my naive nostalgia is spot on, and quite on the nose with my cinematic tastes. Citizen Kane is one of my favorite movies of all time, and its theme is the tragedy of nostalgia.
New Constitutional Crisis Hotline podcast with co-host Julie Suk, link here.
Trump’s interference in the 2020 Election and the January 6 insurrection were big reasons we started this podcast. In this episode, we get some updates on those investigations and ask some questions about some of the progress and the legal and political problems ahead. Helping us understand the covert jury reports, we talk to Anthony Michael Kreis, professor at Georgia State College of Law. Helping us understand the January 6 investigation and the importance of “overt acts,” we talk to Alan Rozenshtein, law professor at the University of Minnesota (co-host of Lawfare’s Rational Security podcast and co-author with Jed on a new article, “January 6, Ambiguously Inciting Speech, and the Overt-Acts Solution.”) Link to “January 6, Ambiguously Inciting Speech, and the Overt-Acts Solution” here.
Julie Suk and I offer a special episode of the Constitutional Crisis Hotline podcast: Linda Greenhouse & Reva Siegel (Yale Law) discuss the road to Roe, its backlash, its legacy, & the myth of incrementalism.
Surprising fact: In 1972, just months before Roe, polling showed that a majority of Catholics supported a legal right to abortion.
For the story of a stunning political shift and a way forward, listen here:
Did you know: In July 1788, New York delayed its parade for adopting the US Constitution because of… wait for it… 17 Tammuz? A Jewish fast day in memory of the Temple’s destruction 6th C. BCE and 70 CE.
I’m reading Pauline Maier’s majesterial “Ratification,” and stumbled on this sentence: NY delayed its huge parade through New York City “to avoid July 22, a Jewish holiday.”
I thought it could be an early Tisha B’Av, so when I googled, I found this article, in which Michael Schwartz followed Maier’s citations to find these 1788 passages: One merchant wrote: “It is said that the procession is postponed till the 23rd Inst. in order to give the Jews an opportunity to Join in the Festivals, the 22nd being one of their holidays.”
A “Staten Island grandee” wrote to his brother: “I Observe the Grand procession is put of[f] to the 23d I think it is a great Compliment paid the Jews.”
Wow. Chanukkah celebrates the re-dedication of the Temple after the war with the Seleucids – and a civil war in the 2d C BCE.
But they are surmountable if the government takes into account his other actions on January 6, 2021.
Alan Rozenshtein and I published a new essay in the Atlantichere.
Here’s our lede: “We believe that the government can prosecute Trump for his speech, but it must proceed very carefully to avoid risking the criminalization of legitimate political expression. The way to do this is for the evidentiary bar to be set appropriately high: Specifically, in cases where a speaker plausibly but ambiguously advocates lawlessness, the government should be required to show that the defendant took additional “overt acts,” beyond making the speech itself, that furthered violence. (We explain this balanced approach for prosecuting political speech—whether for incitement, obstruction, fraud, or insurrection—in greater detail in a forthcoming law-journal article.)”
Our main argument: “When it comes to legal liability for political speech, ties go to the runner—meaning the First Amendment should prevail in close calls, especially in criminal trials. The Brandenburg test is an example of what are called “prophylactic” rules in constitutional law: rules that add a high standard in order to reduce the risk of violating constitutional rights. In particular, there is a serious risk of hindsight bias in any attempt to decide whether a certain speech caused, or would have caused, violence or lawlessness. And when legal rules set a bar too low and with too much subjectivity, they risk opening a door to future prosecutions tainted by partisan bias.
But this is not a tie, because a prosecution need not, and should not, rest solely on Trump’s speech. The January 6 Committee already did much of the work last summer, producing testimony from Cassidy Hutchinson and others showing that Trump took additional concrete acts that he knew would increase the risk of violence.”