The Volokh Conspiracy

For those of you who might be in and around Philadelphia this coming Tuesday (Jan. 31), I’ll be debating with Justin Hughes of Cardozo Law School at a Temple Law School Federalist Society event about the recently introduced (and even-more-recently withdrawn) copyright legislation (SOPA and PIPA). More details about the event can be found here and here. It should be an interesting event; Justin and I have very, very different views about these bills — he was a consultant, I believe, to the House Committee that drew them up, and I think they’re the Devil’s handiwork — and I think there will be both heat and light shed on the issues (both of which are required of a good debate). Plus, I think this is an issue that cuts through a very interesting line through what might roughly be called the political “right” — between the property rights conservatives and the free-speech libertarians — so there are interesting meta-issues on display. We’re expecting a good crowd — there’s nothing like a day-long Wikipedia blackout to get folks interested in online copyright matters — and it should be a lively affair.

My final post about my book, Constitutional Cliffhangers, will deal with fixing and preventing constitutional cliffhangers.

One of my pet peeves is when an article identifies a potential constitutional problem and then concludes blithely that the best solution is just to amend the Constitution. Even passing a statute is tough. Heck, just getting Congress’s attention is hard. A few years ago, I wrote an article about a 50-square-mile swath of Idaho where (according to my theory) people can commit crimes with impunity. Orin posted something about it here and it went viral. A bestselling novel was even written about it. And yet, of the scores of members of Congress I wrote to trying to get them to close the loophole, only a couple even acknowledged my letters.

My book thus wrestles with the very real barriers to fixing the traps I identify, either before or after the nation steps in them. The final chapter of my book offers a lengthy analysis along these lines. I’m not going to say much about that in this post, other than to talk a bit about my conclusion that some cliffhangers are not really worth trying to fix in advance.

There are two kinds of cliffhangers: those in which the main problem is a bad result, and those in which the main problem is uncertainty. An example of the former is Chapter 1, where a sitting president might get prosecuted (with the attendant disruption) or might not (with the attendant injustice). The fact that, in the meantime, presidents and prosecutors go about their days unsure of the answer is much less of a problem. The chapters on self-pardons and late impeachment fit in this category as well. Legislation requires energized consensus, and there wouldn’t be one. Best, then, to just wait for an actual case to deliver a final resolution: either an acceptable result or an unacceptable one that motivates Congress to act.

When the problem is uncertainty, by contrast, the case for proactivity is stronger. In Chapters 3 and 4, constitutional uncertainty could rip the country in half, with two people claiming presidential power, issuing contradictory orders to the military, and purporting to fire cabinet members. The cost of resolving such cliffhangers “the hard way” is so high that it should soften opposition and make it easier — albeit still not easy — to reach a consensus and fix things ahead of time.

The main thing I want to talk about in this last post, though, is better drafting. There is no way to go back in time to 1787 and help the Framers write a better Succession Clause, or to 1947 to help the Twenty-Second Amendment’s drafters tighten up their wording, but Congress will probably draft procedural constitutional amendments in the future. I have some modest suggestions for drafting them better.

The rules and procedures surrounding the presidency are no place to be casual. These provisions should be hyper-precise, even if it means losing some of the public accessibility that is otherwise ideal for the Constitution’s language. Yesterday’s sad tale of the attempt to simplify the Twenty-Second Amendment showed that sacrificing exactitude for punchiness can cost you both.

The process of drafting technical amendments is an odd combination of painful slowness and reckless speed. It typically has taken years and multiple attempts to get a proposed constitutional amendment introduced, through committee in one house of Congress, onto the floor, approved by two-thirds, through committee in the other house, onto the floor there, and approved by two-thirds there. Each step presents an opportunity to change the text.

Especially at the final stages, though, there is a strong sense of impatience and urgency. Having gotten as far as they have, proponents are reluctant to allow anything that might stop the proposal’s forward progress. Moreover, having fought so much and for so long over the details, they distrust any attempt to unravel their craftsmanship.

To a large extent, they are right. Often, proposed last-minute changes represent arguments that were already considered at the committee level and either were shot down there or were the subject of a carefully wrought compromise. Even to the extent that some changes are new, any proposal that stops long enough to get pecked at by hundreds of individual members of Congress will have a hard time ever getting through. If the proposed change is picky and it concerns an unlikely series of events — the stuff of constitutional cliffhangers — it will be hard to defeat the floor leaders’ powerful natural desire to ignore it.

But once there is a consensus on an amendment’s concept, execution, and details, an argument that is solely about the text should not be so disfavored. To be sure, when somebody on the floor of the Senate identifies a phrase that could be drafted better and proposes redrafting it, that is inimical to the goal of final passage. Sending the language back through committee could take weeks or months — an unavailable luxury near the end of a congressional term. Drafting by the full Senate on the spot doesn’t work very well either. Still, sometimes a late change really is called for. Realistically, it’s the last chance; once Congress has approved a proposed amendment, it has no real opportunity to do any redrafting.

Congress thus needs a way to identify mistakes earlier in the process, and to fix late-discovered mistakes in a way that doesn’t unravel years of careful work. The key is to separate the process for agreeing on an amendment’s purpose from the process for finalizing the text. I have a modest suggestion: add two steps to the process, drawing upon wisdom in the general public and using modern collaborative technology to perform a sort of wiki government.

When people or committees have been working with a text for too long, it becomes difficult for them to see the problems with it. A fresh pair of eyes — or better yet, millions of fresh pairs — can be very valuable. Consider the analogy of the very successful use of open-source collaboration to write and debug software. Constitutional amendments can be complicated, but they are less so than software (or than statutes, where this technique has been tried in some places, with mixed results). Thus, there is good reason to think that with the right collaborative technology, interested members of the public would be very helpful at “debugging” and optimizing proposed constitutional amendments.

Once a congressional committee has reached a final, clear consensus on the concept, execution, and details of an amendment, it should give the text one more run-through, to make any improvements to the text that better vindicate that consensus. The committee could take, say, five days to optimize the text with the help of an online process through which interested members of the public could propose, discuss, and rate alternative phrasings.

Working together, the interested public would quickly discover previously unnoticed loopholes and pitfalls, identify the best ways to prevent them, and generally optimize the text. Textual optimization is not easy, but that’s precisely the point. Members of Congress and their staffs, even at their most able, intelligent, and hardworking, cannot match the “wisdom of crowds.”

The “crowd” might find bugs that affect the details in ways the committee had not clearly addressed, but the collaborative process could provide multiple optimized texts, each one reflecting a different set of substantive choices. The committee would still vote on the substantive choices; the public process would just flag issues and offer good language to deal with them. (The committee could get public input at an earlier stage, when it is discussing concept, execution, and details, but there is reason to doubt that this would work nearly as well.)

Once the proposal moves from committee to the full House or Senate, there might be new debate about the concept, execution, and details. Changes at this stage would require changes to the text that the first round of public input might not have covered. But at that point, a similar (and shorter) public process could help to smooth the text over again. Because the textual changes would be working toward a common goal, and because it would not entail rejecting, or tabling, or sending the item back to committee, the public process would not need to slow things down much at all.

Congress would still maintain its voting power, of course. The public would have influence, not direct authority. But public influence would be a welcome addition to the process, even aside from its effectiveness. The Constitution represents the voice of the People with a capital P, not just that of their representatives, in a way that is not the case in the less concise, less accessible world of statutes. When it comes to writing new words into the Constitution, this sort of public participation would have a nice symbolic value as well.

The Kaiser Family Foundation’s latest poll (toplines here) finds that two-thirds of Americans oppose the individual mandate and a clear majority — 54 percent — want the Supreme Court to invalidate the provision.  Based on the poll of 1,206 adults, only 17 percent of Americans would like to see the individual mandate upheld.

Another interesting finding from the survey is that a majority of Americans also believe that the Supreme Court will strike down the mandate.  In other words, according to this poll, a majority of Americans will be surprised and disappointed if the individual mandate is upheld.

(LvWSJ)

I promised to offer today some of the “general lessons” from my new book, Constitutional Cliffhangers. I will divide them into two posts that excerpt and paraphrase the final chapter of the book. This one will deal with the way that law and politics interact when constitutional cliffhangers play out.

For the cliffhangers that would play out entirely in court (presidential prosecutions and self-pardons), one would hope that judges would base their decisions on law, not politics. When Clinton claimed he was immune from Paula Jones’s civil suit, all nine justices disagreed, including the four liberals. Similarly, when President Nixon refused to turn over the Watergate tapes, the justices — many of whom Nixon had appointed — were unanimous in ordering him to.

But the starting point for most cliffhangers is that the law is unclear. When the law is in equipoise but the politics are screamingly unbalanced, the court’s decision will be inextricably linked with its political context. Here, the example is not Clinton or Nixon, but Bush v. Gore.

The Bush v. Gore litigation was, on its face, all about the complicated legal issues; no lawyers said in court, “My client should win because he belongs to your favorite political party, your honor.” But it was evident that if Bush won the case, he would win the presidency. That political ramification overwhelmed the legal issues. Few believe that all nine justices would have voted the same way if the parties had been reversed. When politics infuse the courts like that, the moral authority of the judicial system necessarily suffers. There is an added incentive, then, to prevent constitutional cliffhangers if we think that they would play out in court in such a politicized manner.

Several of my cliffhangers also implicate the political-question doctrine, through which courts leave decisions to the political branches. Alas, the political-question doctrine is not overly clear. Moreover, the doctrine seems to have been weakened lately as federal courts have grown more assertive about inserting themselves into conflicts like these. Compare the disputed 1876 presidential election, in which Congress’s ad hoc resolution carried the day with nary a peep from the Supreme Court, to the disputed 2000 presidential election, in which the Supreme Court’s ad hoc resolution carried the day with barely a peep from Congress.

For most of our cliffhangers, letting the courts get involved would be perceived as a good thing. In many instances, the courts can provide faster and more decisive action than Congress. The Court is, justifiably or not, currently exalted as the nation’s ultimate authority over the Constitution. Moreover, some cliffhangers involve Congress as one of the combatants, and some arise because of congressional carelessness or ineptness. For cliffhangers like those, the courts have much less incentive, and much less basis, to give Congress the last word in resolving them.

Some constitutional cliffhangers surely would play out in Congress, though, and the presence of politics there seems less controversial. Congress is full of politicians — politics clearly “belong” there. To return to Bush v. Gore, if a dispute is going to be resolved by a party-line vote, isn’t it better to have that vote in Congress than in the Supreme Court? Even a seemingly objective issue like presidential disability will be infused with politics, as both sides carefully weigh the political ramifications of their choices and ponder who might deserve the benefit of the doubt.

The Constitution assigns lots of tasks to Congress, from the mundane (passing laws, confirming presidential nominees) to the exceptional (impeachment, presidential disability disputes, winner-less presidential elections). The Constitution’s Framers opted for flexibility, painstakingly creating a structure through which these matters — often matters of great constitutional import — can be settled by ordinary political actors being ordinary and political. This system works well and would work even better if we gave it more of a chance.

But if matters are assigned to Congress because it is representative and accountable, this presents a problem when Congress falls short on either score. An imperfect Congress cannot resolve constitutional cliffhangers with the same legitimacy as a “better” Congress. And there are plenty of imperfections in Congress’s representativeness and accountability. We have corruption, our questionable campaign-finance system, gerrymandered House districts, the disproportionateness that is the Senate, the continued toleration of filibusters, sheer inefficiency, and so on.

There are too many opportunities for Congress to get things wrong. When it comes to situations like deciding which of two contenders is the rightful acting president, there is a dangerous possibility that Congress would thwart the will of the people rather than promote it. In ordinary times, the people can reassert their control in an orderly manner every two years when they vote in congressional elections. But in the middle of a struggle over control of the White House, waiting for the next election would be insufficient and courts seem like the better venue if the Constitution allows it.

Finally, there are presidential politics. In each chapter, the more popular the president (or would-be president) is, the more likely he or she is to emerge victorious, or to not get in trouble in the first place. It’s worth considering two other facets here: the president’s commander-in-chief power, and his populist power to mobilize the public.

In my Tuesday and Wednesday posts, when two people claimed the presidency, it mattered whose side the military took. This is troubling. Our norm of civilian control of the military is threatened if the military starts choosing presidents. On the flip side, though, civilian control could paralyze the military if there were two people claiming to be commander in chief, with two putative secretaries of defense. It would be intolerable for the military to choose sides, but also for it not to choose sides. Perhaps worst of all is a third possibility: the military could be divided and choose both sides. There is no good answer here, just more incentive to prevent the cliffhangers.

Also potentially decisive is the relationship between the president and the public. In yesterday’s post, for instance, the president could not even think about evading term limits unless he had very strong popular support. If that support translated into an electoral victory in November, it would confer a unique legitimacy on him. It is unclear how well suited “populist constitutional law” is for interpreting narrow procedural provisions, but Congress and the courts would resist the people at their peril.

Less comforting is the possible role of the people “out of doors.” Citizen-mobs who take to the streets can be decisive, whether because they galvanize opinion, frighten opponents, or provoke a reaction from the state. We are in the midst of a relatively quiet period in American history, mob-wise, but this potential is never far from the surface, and angry assemblages have played an important part in American constitutional history.

The more credible the courts and Congress are, the longer the mobs would hold off, and the more likely a formal decision would be to quiet things down. Conversely, if Congress and the courts are delegitimized, public demonstrations might actually be the most legitimate way to resolve the conflict. Looking back into our history, and thinking about possible futures, we should not dismiss out of hand the potential contributions of an American public that is mobilized (the etymological source of the word “mob”) and exercising its First Amendment right to assemble.

On the other hand, nobody is in a better position to whip the public into a frenzy — to inspire mobs to form, and to move them to action all over the country — than the president. The problem is that in many constitutional cliffhangers, nobody will have a better incentive to do so than the president. In calmer times, the political cost of being a shameless demagogue is high enough to keep these pressures contained. But when a cliffhanger occurs, that balance could change and those pressures could explode.

As with the military, to the extent that the role of mobs is troubling to us, it provides yet another incentive to fix and avoid these cliffhangers. Fixing and avoiding cliffhangers will be the subject of my next, and final, post.

I have had a lot of fun this week blogging about my new book, Constitutional Cliffhangers. I’d like to thank Eugene again for inviting me, and to the readers and commenters, especially for their kind words. This week has been even better than my last appearance here, when Eugene unveiled Kalt’s Law of Presidential Facial Hair to the world.

This post is devoted to answering some of the more challenging comments my threads got — or more precisely, ones to which the answer is something other than “I address that at length in the book, actually.” There were about thirty where I wanted to just paraphrase long passages from the book (and I do it one time below).

arch1 asked what I meant when I referred to “fixing” presidential constitutional cliffhangers. It’s important to distinguish first between cliffhangers in which the danger is a bad result, and cliffhangers in which the danger is uncertainty.

The latter are much more perilous. The most harrowing scenarios are ones where two people are claiming control of the presidency, as in my posts on Wednesday (on the succession law) and Thursday (on presidential disability). In those cases, a “fix” would be adding certainty and clarity. In the case of the succession law, that means passing a new statute. For the disability procedure, presidents and their legal staffs need to take some simple, precautionary steps.

There’s more difficulty fixing cliffhangers in which the problem is a bad result. Take Chapter 1, on prosecuting sitting presidents. There would be some uncertainty, but the courts could resolve it quickly enough. The bigger problem would be that the presidency might be derailed by a single, unaccountable prosecutor — or, if you take the other side, the problem would be that the president would potentially get away with a crime. A fix is harder here, because it would require consensus on which outcome would be the bad one. It’s hard enough to get Congress to act when the public agrees on something, let alone when there is no consensus at all.

Fixes are even harder when the only way to achieve them is by amending the Constitution. That’s the case in Chapters 2 and 5, on self-pardons and late impeachments. Uncertainty would be resolved fairly quickly. If people were upset at the result — that the president successfully pardoned himself (or couldn’t), or that an ex-president was impeached (or couldn’t be) — they would need to amend the Constitution to change that result, but amendments are pretty unlikely. I argue in the book that, for these cliffhangers, we’re best off just sitting back, doing nothing, and hoping for the best.

Don C and Malvolio commented, with regard to the Wednesday post on the succession struggle, that the Secret Service would follow the succession law and escort the secretary of state from the White House. The Secret Service might be receptive to a court order voiding the succession law, but until and unless that happened, these commenters made a strong case that the Speaker would have the guns on her side.

I think that their points are well taken. There would be limits to the Secret Service’s loyalty to the Succession Act of 1947, though. Secret Service agents and their superiors are human beings, after all. In the hypothetical, the president — and presumably her Secret Service detail — has just been blown to smithereens. The Speaker was complicit in preserving the vacancy in the vice presidency, and fueled the murderous rhetoric that led to the assassination. Indeed, the assassin specified that the purpose of the bomb was to install the Speaker of the House as president. Couple that with the strong constitutional arguments, and a preliminary injunction or two, and who knows what would happen?

For the most part, I am content to defer to my lengthier discussions of answers in the book, but I did want to respond to Brett Bellmore’s comment about Thursday’s third-term scenario. He wrote:

Come on, now, you might not want to “get into” the 12th amendment, but that doesn’t make it unclear.
Granted, with enough bad faith, you can ‘interpret’ anything to mean anything, but a two term President running for VP takes stratospheric levels of bad faith.
Hm, come to think of it, that doesn’t actually rule it out, in today’s Washington...

Of course, I do “get into” it in the book. I’m not afraid of the Twelfth Amendment, folks, I’m just not interested in making my blog posts even longer than they are, so I necessarily have to leave out a lot. But I’ll allow this comment (and this one from B.D.) to goad me into getting into it more here.

The Twelfth Amendment says that “no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.” The question here is what “eligible” means.

Early drafts of the Twenty-Second Amendment talked about two-termers being “eligible to the office,” a phrasing that would have avoided any confusion, but the final version speaks instead of being “elected to the office.” The question is whether that makes two-termers “constitutionally ineligible” to be president — and thus ineligible to be a vice president under the Twelfth Amendment.

If you think that the Twenty-Second Amendment bars two-termers from any service as president, then there’s nothing to talk about. To you, two-termers are completely ineligible to be president, and so completely ineligible to be vice president either. But if you think that the Twenty-Second Amendment allows two-termers to serve as president through succession, things are not as clear cut.

Some people argue that electability and eligibility are synonymous. This would mean that when the Twenty-Second Amendment makes two-termers presidentially unelectable, it also makes them “ineligible” to be president, and thus ineligible to be vice president, under the Twelfth Amendment.

Others say that eligibility is broader, with electability as only one of its parts: because the Twenty-Second Amendment stops short of making two-termers totally ineligible to serve as president, the Twelfth Amendment does not restrict them in any way from becoming vice president either.

The most subtle interpretation is that, by precluding their election, the Twenty-Second Amendment makes two-termers partially ineligible to be president. The Twelfth Amendment defines vice-presidential eligibility as identical to presidential eligibility. Now that the Twenty-Fifth Amendment provides for vice-presidential vacancies to be filled by appointment rather than election, the vice-presidential door is open, partially, for two-termers under this interpretation.

Brett and B.D., I hope that’s a good-enough-faith effort at showing the range of potential Twelfth Amendment arguments for you.

Finally, I wanted to respond to the many commenters who said that they’d like to buy my book, but balked at the price. I wish there was something I could do about that. I tried. Academic publishing is a tricky business, though. Print runs are small and fixed costs are high. More to the point, mass-market appeal is tough to gauge. I’m sure that I’m not the only author who thinks that the publisher underestimated the mass appeal of his own case, but I’m equally sure that most of us are wrong. All I can say is that Constitutional Cliffhangers is worth every penny :)

Nineteenth century phrenologists believed that they could discern a great deal about your abilities and personality by studying the shape of your skull. Today, phrenology is long-discredited. But many voters think they can judge candidates by making similar inferences from their attractiveness and other physical traits. Libby Copeland of Slate has an interesting article summarizing the growing body of research documenting this:

In presidential politics, does it help to look like Mitt Romney? Or, put another way, how much does Newt Gingrich’s face hurt him?

The answer will be disappointing to those who believe in the myth of the rational voter. Looks do indeed matter. But they don’t matter in exactly the way we thought—it’s not attractiveness alone that counts, but a cluster of traits people believe we can read into faces. It appears that voters, particularly those who aren’t paying much attention, don’t know much about politics, and don’t have strong partisan affiliations—which is to say, a solid number of Americans—operate like 19th-century phrenologists, believing on some not-quite-conscious level that that they can read a politician’s character by glancing at things like his eyebrows and jaw line.

Unfortunately, there is no reason to believe that voters are any better at discerning candidates’ likely performance in office from their faces than phrenologists were at predicting character traits based on skull patterns.

As Copeland notes, voters with low political knowledge levels are the ones most likely to base their decisions on candidates’ appearance. Unfortunately, relatively ignorant voters are extremely common. In this 2009 post, I described how appearance-based voting is a part of the broader problem of political ignorance and irrationality.

In this recent Washington Post op ed on how the GOP can increase its appeal to Hispanic voters, former Florida Governor Jeb Bush says the following about immigration:

The American immigrant experience is the most aspirational story ever told. Immigrants left all that was familiar to them to come here and make a better life for their families. That they believe this is possible only in America is the best expression of American exceptionalism I know. And on this score, Republicans have a winning message and record as the party of the entrepreneur....

[W]e need to think of immigration reform as an economic issue, not just a border security issue.....

Republicans should reengage on this issue and reframe it. Start by recognizing that new Americans strengthen our economy. We need more people to come to this country, ready to work and to contribute their creativity to our economy. U.S. immigration policies should reflect that principle. Just as Republicans believe in free trade of goods, we should support the freer flow of human talent.

These points are not new. That immigration “strengthen[s] our economy” is the longstanding consensus view of most economists. Others have previously noted that there is a deep contradiction between anti-immigration conservatives’ support for free markets and their opposition to the free flow of labor across national borders. Ronald Reagan recognized this many years ago, and supported freer immigration throughout most of his political career, even touting an America whose “doors were open to anyone with the will and the heart to get here” in his 1989 farewell address to the nation. The importance of Bush’s op ed is not that it says anything new, but that the person saying it is a prominent Republican whom many conservatives see as a preferable alternative to the party’s current presidential candidates.

Unfortunately, Bush did not address what is perhaps the most important objection many conservatives have to increased immigration: the fear that it will lead to the growth of the welfare state. I covered that issue here. Contrary to conservative conventional wisdom, increased immigration not only does not lead to a bigger welfare state, but may well boost efforts to cut it back.

In the latest New Yorker, Hendrik Hertzberg endorses 18-year term limits for Supreme Court justices, relying on a paper that Steve Calabresi and I published in 2006.

Hertzberg considers this reform the one good idea put forward by the now-defunct campaign of Texas Governor Rick Perry:

This ingenious idea has been kicking around in legal circles for decades. It tiptoed into wider view in 2002, via a Washington Post op-ed piece by two prominent law professors of opposite ideological and political leanings: Yale’s Akhil Reed Amar, a Democrat, a former clerk for Stephen Breyer, and a stalwart of the liberal American Constitution Society; and Northwestern’s Steven G. Calabresi, a Republican, a former clerk for Antonin Scalia, and a co-founder of the conservative Federalist Society. In 2006, Calabresi and his colleague James Lindgren fleshed the idea out in a long article in the Harvard Journal of Law & Public Policy. Justices would still get lifetime appointments. After their eighteen years with the Supremes, they could choose to serve on other federal courts, bringing their experience and, in some cases, their wisdom to the appellate bench. Even if they didn’t exercise that option, though, their salaries would continue for life. If a Justice died or retired before his or her eighteen years were up, a substitute would be appointed via the usual process—Presidential nomination, Senate confirmation—to serve out the remainder. The interim Justice would not be eligible for reappointment to the Supreme Court, but he or she would have the same sweet post-Court deal. And what lawyer wouldn’t jump at the chance to be a Justice of the highest of high courts, if only for a year? . . .

From 1789 through 1970, the average tenure of a Supreme Court Justice was about fifteen years. For Justices who have retired or died since then, the average tenure has been twenty-six years. This isn’t just an artifact of longer life spans. As the Court’s importance has grown—Marbury v. Madison made it the only one of the three federal command posts that is functionally sovereign, and the polarized gridlock of the elected branches has only made it more powerful—and as it has become more “political,” aging Justices have tended to hang on well into senescence, especially when the sitting President is of a different ideological persuasion. Presidents, for their part, seek to extend their influence into the far-distant future, by finding the youngest nominee they can get away with. (Another incentive: while younger is not always wiser, it does make for a shorter paper trail.) The prospect that a Justice will be handing down decisions for close to half a century [more accurately: a quarter-century or a third of a century–JL] turns confirmation fights into political Armageddons. The randomness of openings abets the now-or-never mentality. Richard Nixon named four Justices during his five years in the White House; Jimmy Carter, during his four years, named zero.

Under our proposal, slots would open in the summer of odd years, thus guaranteeing two appointments in a president’s four-year term.

David Segal drew a lot of attention in the law school world — both positive and negative — with his recent series on law schools in the New York Times. Bloomberg Law interviewed Segal about the series here:

Hat tip: Lat via FB.

The last chapter that I will preview from my new book, Constitutional Cliffhangers, is Chapter 6. It deals with a potential loophole in the Twenty-Second Amendment’s term limits for presidents. It’s also the only chapter that cites a commenter from the Volokh Conspiracy.

The term-limit loophole has been noted and discussed a fair amount, dating back to the first president to be constrained by the Twenty-Second Amendment (Eisenhower). There have been robust discussions in newspapers, law-review articles, and blogs. Smart people on both sides have gotten surprisingly vehement about the question.

No president has attempted to exploit the loophole, and President Clinton spoke against it. Still, in the long term, the fates of term-limit provisions around the world suggest that we should not be too complacent over the long term.

Here is the chapter’s opening:

President Frederick is three years into his second term. He remains so popular that some pundits have floated the idea of repealing the Twenty-Second Amendment and letting him run for a third term. Frederick laughs off such talk, and a national opinion poll shows that only 12 percent of voters support repeal. Still, Frederick casts a large shadow; on the eve of primary season, his Democrats have no clear front-runner for the nomination to replace him.

Then disaster strikes: a treacherous terrorist attack kills tens of thousands of Americans. The country rallies behind President Frederick as he leads a strong offensive against the terrorists and their sponsors. His approval rating shoots into the nineties. While the country is badly rattled by the attack, people feel safer with Frederick in charge.

Frederick feels pretty good being in charge too. Now, when the Twenty-Second Amendment comes up, he sounds increasingly coy. Support for repeal rises to almost 50 percent in the polls. But Republicans — and several prominent Democrats — argue against amending the Constitution in the heat of the moment, so the congressional and state supermajorities needed for an amendment are well out of reach.

At this point, a startling idea gains traction among Democrats: President Frederick can run for vice president. Many people would find Frederick’s mere presence reassuring. Others envision a figurehead president who would leave VP Frederick in charge or perhaps even resign and let Frederick become president again. This last maneuver would be constitutional, they say, because the Twenty-Second Amendment only says that no one “shall be elected to the office of the President more than twice,” and Frederick would not be “elected” president. The amendment says nothing about a two-term president “succeeding” to the presidency, or “serving” as president. Buoyed by Frederick’s stratospheric popularity and the atmosphere of crisis, the plan steadily gains support, and Frederick’s anointed surrogate, Representative Stevens, sweeps the Democratic presidential primaries.

The Republicans object forcefully. As one senator puts it on a Sunday morning talk show, “We’re all grateful to President Frederick for his leadership during these difficult months, but everybody knows we have a two-term limit. We shouldn’t let the Constitution be a casualty of this war.” Frederick is officially nominated for vice president at the Democratic convention, and the litigation floodgates open.

Later on in the chapter, we get this exchange on a cable news show:

Professor Scott: Look, I can’t tell you why the drafters of the Twenty-Second Amendment limited it this way. But they did. When they wrote the first draft of the amendment, they said two-termers couldn’t “hold the office.” But then, they changed it from “hold the office” to “be elected.” You see? They initially banned what President Frederick is trying to do, but then they changed the language until it didn’t say that anymore. They said “elected” only, they said it on purpose, and that’s that.

Professor McCulloch: The Twenty-Second Amendment was written to keep two-termers out. The Twelfth Amendment says two-termers can’t run for vice president either. Frederick is a two-termer. It’s not that complicated, and people know it. Professor Scott likes talking about the “plain meaning of the text” here, but that just means he wants to ignore the context and ignore the clear purpose of the amendment and ignore the way people have understood this language for generations. If the Twenty-Second Amendment is this easy to avoid, then it means nothing, and judges don’t like to interpret the Constitution as an exercise in futility. I think Professor Scott and I agree on one thing, though: if the courts don’t prevent this, the people will still get to decide. Lots of voters who would otherwise vote for President Frederick are going to vote against him, because they recognize how inappropriate this is.

I don’t want to get into the legal arguments about the Twelfth and Twenty-Second Amendments here, because so many people have written so much about them already, including on this blog. Briefly, the question for the Twenty-Second Amendment is whether it bars two-termers only from being elected again (as the text says) or from serving anymore at all (as the spirit and the popular understanding of the amendment suggest). For the Twelfth Amendment, the issue is whether “eligible” (in the phrase “no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States”) means eligible to be elected or eligible to serve at all.

Instead of wading into these questions here (I don’t want to just reproduce my whole book, after all), I want to focus on the cautionary tale this represents about constitutional drafting.

An earlier draft of the Twenty-Second Amendment would have avoided this problem, just as Professor McCulloch suggests in the last block quote above. That language was changed in a bold move to “simplify” the language down to 13 words, thus opening the loophole. This was foolish. First of all, the language quickly got re-complicated anyway back up to 121 words (though not in a way that noticed, let alone closed, the loophole). Second, it is more important that technical “nuts and bolts” constitutional language be precise than that it be elegant.

The other side of the argument is that the risks are too low to worry about. And it is truly hard to imagine any president trying to pull this trick; the president would need to have enough support to win even after subtracting out all the would-be supporters who (1) think he is constitutionally ineligible to serve or (2) think that term limits should be observed even if they are not technically required. As Dean Acheson put it back in the Eisenhower days, a two-term president running for vice president would be “more unlikely than unconstitutional.”

But low risk is no reason to let our guards down. What is gained by having a more elegantly phrased amendment that leaves even the slightest potential loophole open? Whatever you think of the possibility of this cliffhanger occurring, it’s hard to argue that we wouldn’t be better off with an amendment that was a few words longer but covered all the bases.

I have some ideas about ways to improve the constitutional drafting process, which I will discuss tomorrow. For now, the point is that we can and should do a better job when dealing with issues like these. For every expert adamant that two-termers cannot serve again (my favorite line from one professor, responding to his opponent: “The contention is so preposterous, and so obviously wrong, that one wonders how a nationally renowned law professor at one of the top law schools in the nation could make such a mistake. . . . [He] quite obviously knows little about the Constitution.”), there is an expert adamant that they can. While shoddy drafting makes it easier for people like me to have their fun writing about hypothetical craziness, it would be better for everyone to keep doubt and uncertainty about presidential power at a minimum

With all due respect to Dean Acheson (and to the commenters here at VC who will say that this chapter is stupid because it simply could never happen), I will just close with the words I use to end Chapter 6: “Constitutional disputes do not arise in a vacuum, and our democracy has had its weak moments. It would be foolish to assume that the United States will never have a president who is more popular than the Constitution — or, more to the point, more popular than one disputable interpretation of it.”

In his new book, Coming Apart: The State of White America, 1960–2010, Charles Murray argues that a new elite class has emerged that is much more ignorant about the lives of ordinary Americans than were the elites of earlier generations:

As the new upper class increasingly consists of people who were born into upper-middle-class families and have never lived outside the upper-middle-class bubble, the danger increases that the people who have so much influence on the course of the nation have little direct experience with the lives of ordinary Americans, and make their judgments about what’s good for other people based on their own highly atypical lives...

Many of the members of the new upper class are balkanized. Furthermore, their ignorance about other Americans is more problematic than the ignorance of other Americans about them. It is not a problem if truck drivers cannot empathize with the priorities of Yale professors. It is a problem if Yale professors, or producers of network news programs, or CEOs of great corporations, or presidential advisers cannot empathize with the priorities of truck drivers. It is inevitable that people have large areas of ignorance about how others live, but that makes it all the more important that the members of the new upper class be aware of the breadth and depth of their ignorance.

If Murray is right, this kind of elite ignorance is the flip side of the general public’s political ignorance. Public ignorance is dangerous because it reduces the quality of voting decisions; elite ignorance because it reduces the quality of the decisions made by elites once they get into positions of power.

To illustrate his point, Murray includes in the book a 25 question quiz that is intended to test readers’ knowledge and exposure to mainstream non-upper middle class culture (he assumes that most of the readers are members of the upper middle class elite). I managed a middling 37 on his 0–99 point scale.

As Murray recognizes, one can easily quibble about the details of many of the questions. For example, I not only have “attended” a Rotary Club meeting, but actually gave a speech at one when I was 17. Maybe I should get extra credit for the latter. I would also have achieved a higher score if there were more sports-related questions. Other readers will have different complaints. Even so, there is no reasonable version of this test on which I would have come out looking like a Man of the People. More generally, Murray is surely right that there is a culture gap between the new upper middle class and the rest of the public, and that the former is often ignorant about the lives of the latter.

At the same time, I am skeptical that the gap is much greater than it was fifty years ago. Murray claims that the elite of the early 1960s was much more in touch with mainstream culture than today’s upper middle class (which he defines, roughly, as people in various professional occupations who are in the top 5% of the income distribution). He only offers a modest amount of evidence to support that claim, and on some points his evidence cuts the other way. For example, one of the differences between the upper middle class and the mainstream that Murray cites is that the former are much more likely to engage in foreign travel. But that gap was even greater in 1960, when foreign travel was much more an elite preserve than it is today, in the age of relatively cheap jet flights.

More importantly, I am far from certain that the kind of knowledge Murray describes is actually important in improving the quality of public policy. Yes, elites who make policy that affects the lives of truck drivers should have some knowledge of “their priorities.” But it’s not clear to me that knowledge of TV shows, foods, preferred sports, etc., of truck drivers is all that useful to understanding those priorities. Even the experience of living with a low income or working at a job where your body hurts at the end of the day (both stressed by Murray s especially important) may be overrated. You don’t have to do either to realize that poverty imposes substantial constraints on your life, or that physical pain is extremely unpleasant. I actually did qualify for the points you get from having had a job where the body hurts at the end of the day. But I doubt that my attitude towards manual labor would be much different if I hadn’t. Overall, I’m not convinced that a political elite composed of people who scored a 99 on Murray’s test would do much better by the truck drivers than one composed of people who scored 19 or 29. At the very least, Murray offers little if any proof of it in the book.

To be sure, there is an important sense in which elite ignorance reduces the quality of public policy. In a complex society where people have a wide variety of preferences, not even the most knowledgeable elite experts can really have enough information to impose efficient paternalistic regulations that preempt individual choice. But this problem would persist even if all our elites had a deep and extensive knowledge of non-elite culture. The solution is not so much an elite that is better-informed about the culture of the masses, but an elite whose power over those masses is more limited and decentralized.

That said, I’m certainly open to the possibility that diminishing some types of elite ignorance would improve our society. But I’m skeptical that what we need to have a better elite is the kind of knowledge Murray emphasizes.

In United States v. Jones, Justice Scalia wrote a majority opinion holding that when the police trespass onto property enumerated in the text of the Fourth Amendment with the purpose of obtaining information, they commit a search. In Bond v. United States, however, Justice Scalia dissented — more specifically, he joined Justice Breyer’s dissent — when the Court held that it is a Fourth Amendment search for the police to grab a suspect’s duffel bag and squeeze it with intent to see what it contains inside. According to Justices Breyer and Scalia, this was not a Fourth Amendment search.

Does anyone have ideas for how to reconcile Scalia’s votes in Bond and Jones? One answer is that in Jones, Justice Scalia is engaging in equilibrium-adjustment — he’s trying to maintain Fourth Amendment protection in light of technological change, so he favors broader Fourth Amendment protection to counter new powers by the Government. Equilibrium-adjustment isn’t necessary in Bond, which just involved the old-fashioned facts of grabbing a bag. But are there other ways to reconcile those two votes? Is manipulating a bag not a common law trespass? Does a bag not count as “effects”? Does Justice Scalia see Bond as only asking about the Katz test, not whether the conduct is a search generally?

UPDATE: Some commenters contend that Bond obviously only involved the Katz test, not the broader question of what was a Fourth Amendment search. But here’s the Question Presented in Bond:

Whether a search occurs when a law enforcement officer manipulates a bus passenger’s personal carry-on luggage to determine its contents.

It’s true that the briefing in Bond talks a lot about the Katz test; until Monday, no one was aware that the Katz test was only one among two or more tests for what counts as a search. But a lot of the briefing in Bond talks generally about whether a search occurred, not just about a reasonable expectation of privacy.

The next chapter of Constitutional Cliffhangers I’d like to present is Chapter 3, on the presidential disability provisions in the Twenty-Fifth Amendment. This is an unusual candidate for a cliffhanger for two reasons. First, one side of the constitutional debate seems to me to be clearly wrong, with no chance of prevailing in court. Second, the “repair” here is rather easier than in other chapters, requiring no legislation.

Here’s the scenario. See how many Caine Mutiny references/analogies you can spot:

Frances Philips is halfway through her second term as president. Her management style, which was always “hands off,” has become downright lax. She skips meetings, neglects decisions that need to be made, and shows little interest in being president. Some members of her cabinet and staff worry that she is clinically depressed, but — swayed by the increased power that comes with having a figurehead for a boss — none of them does anything about it.

Then President Philips starts alternating her periods of utter inertness with bursts of aggressive and arbitrary micromanagement. At a cabinet meeting, she rants for ten minutes about the use of blue pens instead of black ones. Next, without explanation, she announces that she is killing a carefully developed policy initiative in which she had previously taken no interest.

Several cabinet secretaries become convinced that the president is unable to perform her job. They start to discuss Section 4 of the Twenty-Fifth Amendment, which allows the vice president and a majority of the cabinet to declare the president “unable to discharge the powers and duties of [her] office,” and transfer power to the vice president. Crucially, though, Vice President Merrick opposes the effort. Although he worries that President Philips’s mental condition is deteriorating, he is reluctant to lead what could be perceived as a coup.

Things come to a head when war unexpectedly breaks out in the Middle East. After hearing the initial reports, President Philips paces in the Oval Office, muttering to herself but issuing no orders and taking no action. After several excruciating hours pass like this, Vice President Merrick has had enough, and he gathers the cabinet to file a Section 4 declaration. He is joined by a solid majority: eleven out of fifteen cabinet members.

President Philips is blindsided, but her chief of staff Tom Cooper (who Merrick erroneously thought would support the Section 4 declaration) is not. When Philips asks what her options are, Cooper reads to her from Section 4: if the president sends a counter-declaration to Congress that “no inability exists,” she can “resume the powers and duties of [her] office.” Cooper notes, however, that Section 4 allows the vice president and cabinet to reassert the president’s unfitness within four days, sending the matter to Congress for a final decision, and giving power to the vice president in the meantime.

With renewed focus, Philips executes Cooper’s plan. First, she signs a letter declaring herself fit and transmits it to Congress. Next, she summons the cabinet and addresses the eleven mutinous members: “If you don’t think I can discharge the powers and duties of my office, watch this. You’re fired.” Finally, she replaces them, naming eleven of her most trusted subordinates as acting cabinet secretaries.

In response, Vice President Merrick rallies the old cabinet, and he and the original eleven challengers sign a second declaration of Philips’s disability. Merrick claims that Philips has misread Section 4: Philips never retook power, her firings are invalid, the second disability declaration is valid, Merrick is the acting president, and Congress must now step in. Unfortunately, as advised by Chief of Staff Cooper, Philips refuses to back down. She says that she is in control, with the unanimous support of the “legitimate” cabinet, and that Congress has no basis to act.

The nation is in crisis. There are two presidents and two cabinets. The situation in the Middle East is spinning out of control, and nobody knows for sure who the rightful commander in chief, secretary of state, and secretary of defense are. Congress assembles while dueling sheaves of legal pleadings and memoranda flood the federal courts.

President Phillips and her chief of staff are clearly in the wrong here. The problem is that Section 4 is written in a way that allows them — in the heat of this tense situation — to misread it. In the chapter, I talk more about how their misreading could happen, including instances of smart people making the same mistake.

Part of the problem is that the main source of clarity is the legislative history: a statement in response to one of those smart people making the same mistake. Later in the chapter, it leads to this exchange:

White House Counsel Keith: Madame President, the legislative history of Section 4 is clear as a bell. You do not get to come back until this goes through Congress, unless the cabinet went four days without re-challenging you. But the cabinet did re-challenge you. I’m sorry, Ma’am, but Vice President Merrick is in charge and you cannot fire anybody.

President Philips: [Expletive] the legislative [expletive] history, [expletive] Merrick, and [expletive] you, you [expletive] traitor [expletive]!

The drafters of the Amendment operated in an era in which legislative history was assumed almost to be part of the text. There is a striking (unrelated) passage in the legislative history in which Senator Bayh states that the legislative intent is that the amendment be construed as if a passage that had appeared in an earlier draft was still there! But mistakes are most likely to be made in precisely this sort of situation, in which tensions and stakes are extraordinarily high, and there are powerful incentives pushing the president and some of her staff in this direction.

Consider the immediate aftermath of the shooting of President Reagan in 1981. The administration was unprepared to discuss transferring power, and “the men gathered in the Situation Room [did not] know what action they were authorized to take or expected to take.” Away from the White House (and to no effect), lawyers in the Justice Department studied the legislative history of the Twenty-Fifth Amendment as President Reagan was in surgery.

Largely as a result of that episode, presidents have much better contingency planning. Still, nothing is guaranteed. This cliffhanger is a good example of the importance of careful, clear constitutional drafting. Presidential disability and succession rules are no places for the slightest uncertainty. They should be certain and swift — there should never be doubt about who the president is at any given moment.

This cliffhanger exposes flaws in the drafting process, because earlier drafts of the amendment were written in a way that would have prevented the Phillips scenario from ever occurring. The book offers some thoughts about improving the amendment-drafting process to prevent these sorts of things from happening. (The Twenty-Fifth Amendment is also the only one I am aware of with a typo in it. Ten points to the first commenter to find it.)

In the meantime, as I said at the outset, the fix here is relatively easy. Presidents and their legal staff need to make it clear — right now, when there is no crisis — that they understand that the vice president is in charge during the four-day waiting period.

As mentioned above, contingency plans aren’t always followed. Nevertheless, if the proper interpretation of Section 4 gets engrained regularly enough, the chances of someone getting in wrong in a crisis will fade away.

From Montana Code § 13–35-218, titled “Coercion or Undue Influence of Voters,” first enacted by referendum in 1913 and still in effect:

A person who is a minister, preacher, priest, or other church officer or who is an officer of any corporation or organization, religious or otherwise, may not, other than by public speech or print, urge, persuade, or command any voter to vote or refrain from voting for or against any candidate, political party ticket, or ballot issue submitted to the people because of the person’s religious duty or the interest of any corporation, church, or other organization.

Today, this would be pretty clearly seen as an unconstitutional speech restriction, but apparently in 1913 it was seen as a good government measure. Similar laws were enacted in Nevada and Oregon around the same time.

That’s by Christopher Gore, Massachusetts Governor, speaking in 1809, and reminding us that there is nothing new under the sun:

Already, we have but too much reason to deplore the violence and animosity of party spirit. It has gone far to destroy social intercourse, and all the endearing charities of life, between ancient friends and neighbours, and to substitute political opinions for virtue, intelligence, and patriotism. Already the wise and good of all parties, entertain apprehensions, lest the interests of the people and the duties of government, might be forgotten in the solicitude for party power, and the hatred of political opponents.

Fill in your own, for fun and education! Entertainment for the whole family. Ages 4 and up.

I blogged a lot about this topic a few years ago when the Boucher case was pending; although an appeal was filed in that case in the First Circuit, the appeal was dropped so the appellate court never decided it. In any event, several readers point me to a new decision on the topic, United States v. Fricosu, out of the District of Colorado.

Based on a quick read of the opinion, the legal analysis in the Fricosu opinion is not a model of clarity. But it strikes me as a replay of the district court decision in Boucher: The Court ends up ordering the defendant to decrypt the hard drive, but only because the court made a factual finding that in this specific case, the government already knew the information that could be incriminating — and as a result, was a “foregone conclusion” that dissipated the Fifth Amendment privilege.

If I’m reading Fricosu correctly, the Court is not saying that there is no Fifth Amendment privilege against being forced to divulge a password. Rather, the Court is saying that the Fifth Amendment privilege can’t be asserted in a specific case where it is known based on the facts of the case that the computer belongs to the suspect and the suspect knows the password. Because the only incriminating message of being forced to decrypt the password — that the suspect has control over the computer — is already known, it is a “foregone conclusion” and the Fifth Amendment privilege cannot block the government’s application.

UPDATE: A reader asks what happens if a person refuses to comply with the order or claims to have forgotten the password. Here’s the Second Circuit’s summary of the law in In re Weiss, 703 F.2d 653 (2d. Cir. 1983):

Testimonial obduracy by a witness who has been ordered by the court to answer questions may take any of a number of forms. The witness may refuse categorically to answer. Or he may respond in a way that avoids providing information, as, for example, by denying memory of the events under inquiry, denying acquaintance with targets of the inquiry, or denying knowledge of facts sought to be elicited. Or he may purport to state informative facts in response to the questions while in fact testifying falsely.

Any of these three forms of obduracy may be met with the imposition of one or more judicial or governmental sanctions. For example, when the witness has refused to answer questions, he may be adjudged in civil contempt and ordered to answer, e.g., Shillitani v. United States, supra, 384 U.S. at 370, 86 S.Ct. at 1535; In re Grand Jury Investigation of Giancana, 352 F.2d 921 (7th Cir.), cert. denied, 382 U.S. 959, 86 S.Ct. 437, 15 L.Ed.2d 362 (1965); or he may be adjudged in criminal contempt and punished for his past failure to answer, e.g., Brown v. United States, 356 U.S. 148, 78 S.Ct. 622, 2 L.Ed.2d 589 (1958). In some cases both coercive and punitive sanctions have been imposed. See, e.g., Yates v. United States, 355 U.S. 66, 74, 78 S.Ct. 128, 133, 2 L.Ed.2d 95 (1957); United States v. Petito, 671 F.2d 68 (2d Cir.1982); In re Irving, supra.

If the witness has responded falsely to the questions propounded, he may be subject to prosecution for a criminal offense in violation of, e.g., 18 U.S.C. § 1621 (perjury), or 18 U.S.C. § 1623 (false declarations before grand jury or court). If the witness’s false testimony has obstructed the court in 663*663 the performance of its duty, the witness may be met with sanctions for civil contempt, see Ex parte Hudgings, 249 U.S. 378, 383, 39 S.Ct. 337, 339, 63 L.Ed. 656 (1919), or criminal contempt, see In re Michael, 326 U.S. 224, 227–29, 66 S.Ct. 78, 79–80, 90 L.Ed. 30 (1945).

The middle category of testimonial obduracy, i.e., the witness’s equivocal responses or disclaimers of knowledge or memory, has also been dealt with as contemptuous conduct, warranting sanctions that were coercive, punitive, or both. It has long been the practice of courts viewing such testimony as false and intentionally evasive, and as a sham or subterfuge that purposely avoids giving responsive answers, to ignore the form of the response and treat the witness as having refused to answer. See, e.g., In re Schulman, 167 F. 237 (S.D.N.Y.1909), aff’d, 177 F. 191 (2d Cir.1910); United States v. Appel, 211 F. 495 (S.D.N.Y.1913); United States v. McGovern, 60 F.2d 880, 889 (2d Cir.), cert. denied, 287 U.S. 650, 53 S.Ct. 96, 77 L.Ed. 561 (1932); Schleier v. United States, 72 F.2d 414 (2d Cir.), cert. denied, 293 U.S. 607, 55 S.Ct. 123, 79 L.Ed. 697 (1934); In re Eskay, 122 F.2d 819 (3d Cir.1941); Howard v. United States, 182 F.2d 908 (8th Cir.), vacated and remanded as moot, 340 U.S. 898, 71 S.Ct. 278, 95 L.Ed. 651 (1950); Richardson v. United States, 273 F.2d 144 (8th Cir.1959); Martin-Trigona v. Gouletas, 634 F.2d 354, 357–59 (7th Cir.), cert. denied, 449 U.S. 1025, 101 S.Ct. 593, 66 L.Ed.2d 486 (1980); In re Battaglia, supra, 653 F.2d at 422; In re Bongiorno, supra.

In In re Schulman, for example, the district court found that a bankrupt’s repeated responses of “I don’t remember” and “What do you mean?” to questions concerning the disposition of his assets in the six months preceding his declaration of bankruptcy were disingenuous and evasive. The court thus construed the responses as refusals to answer and imposed a combination of civil and criminal contempt sanctions by ordering the witness imprisoned for six months, with the proviso that if the witness chose, after five days, to provide nonevasive answers, he would be released from prison. This Court affirmed, stating as follows:

The testimony as it appears in the record evinces a deliberate purpose to conceal the truth and prevent the trustee from becoming possessed of facts which would lead to a recovery of the missing property. The witness was being asked regarding transactions directly within his knowledge and facts which he must have known. When, therefore, he answered repeatedly “I don’t remember,” it is obvious that he was deliberately withholding information to which the trustee was entitled. In effect his attitude was one of defiance. He did not affirmatively tell the referee that he refused to disclose the facts which would enable the trustee to follow the property, although these facts were well known to him, but his conduct produced the same result as if he had stated his purpose openly.

177 F. at 193.

A commenter on the thread about the 1901 case in which the court rejected (on statutory grounds) a prosecution for expelling someone from church based on how he voted writes:

It goes almost without saying that religious freedom was not at issue in this case because the First Amendment would not be incorporated against the states until Gitlow v. New York, 268 U.S. 652 (1925), a quarter of a century later.

Actually, that’s not so (even besides the detail of exactly when the Free Exercise Clause was incorporated against the states). Throughout American history, each state has had its own Constitution and, almost always, its own Bill of Rights; before incorporation, the chief protection against state government action was precisely those Bills of Rights. The 1776 North Carolina Constitution, for instance, provided that “all men have a natural and unalienable right to worship Almighty God according to the dictates of their own conscience” and that “all persons shall be at liberty to exercise their own mode of worship: Provided, that nothing herein contained shall be construed to exempt preachers of treasonable or seditious discourses, from legal trial and punishment.”

As a result, courts before incorporation could and did consider whether state government action violated its state religious freedom provisions, state free speech provisions, and so on. So if the litigants could well have raised a religious freedom argument in this case; if they had, and if the court had concluded that statute did indeed purport to limit church expulsion decisions, the court would have had to consider the constitutional objection.

Whether the challengers of the statute would have succeeded under this counterfactual is a different question. But while nearly all free speech, free press, and religious freedom challenges were generally rejected by early courts, I suspect that this was largely because the restraints were usually well-established and endorsed by tradition, which counted a lot to early courts (and still counts a lot to courts today). A restraint on churches’ ability to break off relations with their members would have been so unusual that I think it might well have been held unconstitutional under the North Carolina Constitution. But of course the court avoid this by concluding that there was indeed no such highly unusual restraint.

In my first post I said that my “cliffhangers” range from the merely interesting all the way up to full-blown constitutional crises. My favorite chapter in Constitutional Cliffhangers, Chapter 4, definitely qualifies as a crisis. Here is the opening:

The United States is deeply divided over the war. Everyone agreed that we needed to fight back when Ruritania attacked our bases, but after two years of intensive combat, things are not going well. Addressing the nation, President Joanna Lewis announces her intention to seek a negotiated settlement. The half of the country that agrees with her breathes a sigh of relief.

The other half boils with rage. Responding to the president, Speaker of the House Peg Wilton says, “We are losing this war — not because our cause is hopeless, but because we have a cowardly commander in chief. We should never surrender to fascist aggression.” “Coward” is a mild epithet compared to what other hawks call President Lewis.

Complicating matters is that a few weeks ago, the vice president suffered a fatal heart attack. President Lewis nominated a candidate to fill the vacancy, but the hawks in Congress have stalled the vote. They are motivated by their distaste for the nominee’s unsurprisingly dovish position on the war, but everyone notices that while the vice presidency is vacant, Speaker Wilton is next in line for the presidency (followed by the president pro tempore of the Senate, and then members of the cabinet, starting with the secretary of state).

As President Lewis arrives at a public event one morning, an assassin detonates a huge bomb, killing the president and dozens of others. In a homemade video produced before the assassination, the bomber decries “the coward Lewis” and announces his intention to kill Lewis so that the stalwart Wilton will become president and continue the war. Within two hours of the assassination, the video has saturated television and the Internet.

The assassin seemingly gets his wish. Wilton condemns the assassination in the most strident terms, obviously, but she takes an oath of office that morning as acting president. Her political position is tenuous. Supporters of the martyred President Lewis blame Speaker Wilton for fueling the rhetoric that led to Lewis’s assassination, and for her role in stalling to keep the vice presidency vacant. In other words, they feel as though the country has just suffered a coup d’état. They latch onto a legal argument that, just hours earlier, had been an academic one: that it is unconstitutional for the succession law to include members of Congress. Wilton’s opponents argue — with the support of several prominent legal experts — that the dovish secretary of state, John Allen, is the legitimate acting president.

Secretary Allen decides to contest Wilton’s claim to the presidency. He too takes an oath of office as acting president and, without using force, he assumes physical control of the White House. “The struggle over our war policy has been ugly, but it’s a political struggle,” he says in a national address from the Oval Office. “In America, we don’t settle political questions by mass murder.”

It has only been ten hours since the assassination — a shocking and surreal day. No violence has broken out yet, but it feels like only a matter of time before it does. No one is in the mood to compromise, and control of the government and the military hangs in the balance as Allen and Wilton vie for control.

This is my favorite chapter for many reasons. The first is that I can’t resist the potential drama of the story (a novel is in the works). The second (and my main focus in this post) is that it highlights the interaction between law and politics.

The legal issue here is complicated, but to summarize briefly: The Constitution’s Succession Clause empowers Congress only to place “officers” in the line of succession, and the Speaker of the House and the President Pro Tem of the Senate (whom the statute places second and third in line, respectively) are arguably not “officers” as the Constitution uses the term. The secretary of state clearly is an officer. (I am guessing the commenters might get into the details more...)

The role of politics here is key. Even though the weight of scholarly opinion is (by my measurement) on the secretary of state’s side here, I concede that the Speaker could assume office without controversy in most cases. The general public would accept the result. Those that did not would either lack standing to challenge the succession law, or (like the secretary of state, who would have standing) would lack the political and personal will to do so.

But in a situation like the one in my opening scenario — in which the Speaker is of a different party, had a hand in maintaining the vacancy in the vice presidency, and arguably incited the vacancy in the presidency — the secretary of state might make a play for control and the country could be in real trouble.

We cannot be sure that the winner of this struggle would be the side with the stronger constitutional arguments. We can be sure that the struggle itself would shake the foundations of our government.

This odds of this happening might be long, but the stakes are incalculable. On the other side, the benefits of the status quo are minimal. The justification usually offered for Speaker succession (that the Speaker is a top elected official, representing the whole country, while cabinet members are mere appointees) doesn’t amount to much when compared to the potential peril it represents.

Even though this makes it a good candidate for reform from a cost-benefit standpoint, politics again make it hard to see this getting fixed. For various reasons, Congress is better at addressing problems that have already occurred than it is at preventing future ones. Congress is also driven by interests and the “cliffhanger-reform” movement is politically weak, while the “preserve the prestige of the Speaker” movement has a natural constituency at the Capitol.

Law, politics, and the Speaker and secretary of state trying to strangle each other. All of this and more in Constitutional Cliffhangers.

Hello Volokh Conspiracy readers! I’d like to thank Eugene for this opportunity to guest blog here about my new book, Constitutional Cliffhangers: A Legal Guide for Presidents and Their Enemies.

Today I’ll have one post with a brief introduction, and another with an excerpt/discussion from one chapter. I’ll discuss a couple more chapters tomorrow and Thursday, and conclude with some general lessons on Friday. I look forward to your comments, and I’ll try to post some responses to them too.

My book is about what I call constitutional cliffhangers, all of them of the presidential variety. I define these cliffhangers as “scenarios in which the fate of the president or presidency is in doubt as politicians, courts, and the people argue over the proper interpretation of the Constitution.” They range from the merely interesting all the way up to full-blown constitutional crises.

In the middle six chapters, I sketch out hypothetical situations in which (1) a president is criminally prosecuted; (2) a president pardons himself; (3) cabinet members try to oust an allegedly disabled president, who in turn tries to oust them; (4) the secretary of state and the Speaker of the House fight for control of the presidency after the president and vice president are killed; (5) an ex-president is impeached; and (6) a two-term president attempts to stay in power.

In each case there are legal arguments on both sides, complicated by intense politics. The politics are often decisive in cases like these, so it might seem pointless to spend too much time debating the legal niceties. I’ll address that important issue on Friday.

In the remainder of this introductory post, I’ll address a common question that topics like mine evoke: “Why worry about a bunch of crazy stuff that will never happen?”

The short answer is that crazy stuff like this happens quite often. The scenarios in my book were chosen because they haven’t happened yet, but some of them have come close. More to the point, other examples abound in American history: The Jefferson-Burr tie in the Election of 1800 is probably the first; the Harrison-Tyler “acting president” question from 1841 is probably the most significant; and the Paula Jones case is probably the most recent. The Constitution has too many wrinkles and slick spots in it for us to avoid tripping or slipping on them once in a while.

It’s worthwhile to try to identify problems before they happen, and to discuss and possibly fix them. Indeed, some of them are too obvious to ignore, yet we still manage to do so until it’s too late. Consider this passage from my introductory chapter about the lessons we can learn from our most contentious presidential election:

The whole election turned on a few hundred disputed votes in Florida. There had been ultra-close presidential elections before, and there had been ambiguous results in individual states before; it was only a matter of time before both happened at the same time. Unfortunately, no steps had been taken to prevent it.

The problem was that there were no rules for resolving a dispute like this. The quintessential American mixture of politics and litigation filled the void. The Republicans fought to defend their initial lead; the Democrats fought to open things back up and recount the votes. The Republicans controlled key posts in the state government; the Democrats won key victories in Florida state court. The Republicans took their case to Washington, D.C., where Republican-appointed Supreme Court justices declared that there was no time for recounts, handing the election to the Republicans. And so, in 1877, Rutherford B. Hayes became our nineteenth president.

You might recall some similar things that happened in 2000. The underlying quandary — an electoral system in which it is easy for the margin of error to greatly exceed the margin of victory — was no secret before 1876, let alone in 2000. And yet it dangled out there unsolved, waiting to snag both elections. For the most part, it dangles still.

That’s the spirit of Constitutional Cliffhangers.

I’ll be posting again later today with a look at my favorite cliffhanger (Chapter 4 in the book), a succession crisis in which the secretary of state and the Speaker of the House wrestle, figuratively, for control of the White House.

Tom Goldstein weighs in with some excellent points about United States v. Jones over at SCOTUSblog.

Tad DeHaven of the Cato Institute has a good post highlighting the data on state governments’ growing dependence on federal funds. Since 2001, federal grants have risen from 25.7% of state government spending to 34.1% today. Most of that growth has occurred since the present recession began in 2008.

One of the main distinctive benefits of American federalism is that, historically, state governments have had to raise most of their funds from their own taxpayers, rather than relying on grants from the feds. This gives states incentives to compete for taxpayers and improve the quality of their policies and public services, thereby increasing the effectiveness of voting with your feet. I cover these points in more detail here.

In most other federal systems, the central government provides the lion’s share of subnational governments’ funding. If present trends continue, the United States may join this trend. State governments will increasing look to Washington for most of their funds, and incentives for competition and innovation will be undermined. It’s possible that fiscal policy will return to “normal” as the economy improves. But state governments are likely to lobby for current grant levels to continue even after the recession ends. Current federal subsidy levels could easily become the new normal.

I’m delighted to report that Prof. Brian Kalt will be guest-blogging this week about his new book, Constitutional Cliffhangers: A Legal Guide for Presidents and Their Enemies. From the book summary:

The United States Constitution’s provisions for selecting, replacing, and punishing presidents contain serious weaknesses that could lead to constitutional controversies. In this compelling and fascinating book, Brian Kalt envisions six such controversies, such as the criminal prosecution of a sitting president, a two-term president’s attempt to stay in power, the ousting of an allegedly disabled president, and more. None of these things has ever occurred, but in recent years many of them almost have.

Besides being individually dramatic, these controversies provide an opportunity to think about how constitutional procedures can best be designed, interpreted, and repaired. Also, because the events Kalt describes would all carry enormous political consequences, they shed light on the delicate and complicated balance between law and politics in American government.

I much look forward to Prof. Kalt’s visit.

For those interested, I’ll be giving a variety of talks in the coming weeks, including the following:

• I’ll be speaking to the University of Michigan Law School Federalist Society chapter on “The Individual Mandate Litigation and the Future of Federalism,” Jan. 25 at 12:00pm, 120 Hutchins Hall.
• I’ll be debating the constitutionality of the individual mandate with David Orentlicher of Indiana at the University of Utah S.J. Quinney College of Law’s  28th Annual Jefferson P. Fordham Debate, Feb. 6 as 12:15pm.
• I’ll be debating Professor Neil Wise on EPA regulation of greenhouse gases under the Clean Air Act to the Rutgers-Camden chapter of the Federalist Society, Feb. 8.
• I’ll be discussing EPA regulation under the Clean Air Act with Stephanie Tai before the Madison, Wisconsin lawyers chapter of the Federalist Society, Feb. 22.

[Post updated]

Earlier today, the Stanley Cup champion Boston Bruins visited the White House. But playoff MVP goaltender Tim Thomas chose not to attend. He issued a very libertarian-seeming statement explaining his reasons:

I believe the Federal government has grown out of control, threatening the Rights, Liberties, and Property of the People.

This is being done at the Executive, Legislative, and Judicial level. This is in direct opposition to the Constitution and the Founding Fathers vision for the Federal government.

Because I believe this, today I exercised my right as a Free Citizen, and did not visit the White House. This was not about politics or party, as in my opinion both parties are responsible for the situation we are in as a country. This was about a choice I had to make as an INDIVIDUAL.

This is the only public statement I will be making on this topic. TT

For reasons I described here, I don’t think we should attach much weight to the political views of sports and entertainment celebrities. That holds true even in the rare cases like this one where a celebrity makes a political statement I agree with. Still, I thought Thomas’ decision was interesting, if only because there are so few libertarian celebrities out there. I don’t know if I would have rejected the invitation to the White House were I in Thomas’ position. But I certainly sympathize with his reasons for doing so, including the point about both parties bearing responsibility for today’s overgrown federal government.

UPDATE: Various media reports indicate that Thomas is a fan of Glenn Beck, who is far from uniformly libertarian, and occasionally endorses ridiculous conservative conspiracy theories. So Thomas may well be more of a conservative himself. That said, the reasons he gave in his statement are ones that most libertarians would agree with.

It’s arguable that Thomas should have gone to the White House anyway, on the grounds that events like this are really about paying tribute to the office of the presidency rather than the policies of the present occupant of it. On the other hand, presidents of both parties do these sorts of events in part because they see a political advantage in it. On balance, if I were Thomas, I would probably have gone to the event anyway, since it doesn’t imply endorsement of the president’s agenda or of the general course of federal policy over the last few years. But I can certainly understand Thomas’ reasons for making the opposite decision.

Today’s decision in United States v. Jones holds that the Katz test is not the exclusive test for what is a Fourth Amendment search: When the government conducts a common-law trespass into a person, house, paper, or effects, that trespass is a search if it is done “for the purpose of obtaining information.” Three questions come to mind about what this means:

1) What kind of “trespass” counts for purposes of this test? As Blackstone noted in his Commentaries (Vol. 3. Ch 12), at common law there were two understandings of “trespass” — a broad one and a narrow one. Blackstone wrote:

Trespass, in its largest and most extensive sense, signifies any transgression or offence against the law of nature, of society, or of the country in which we live, whether it relates to a man’s person or his property. Therefore, beating another is a trespass, for which (as we have formerly seen) an action of trespass vi et armis in assault and oattery will lie; taking or detaining a man’s goods are respectively trespasses, for which an action of trespass vi et armis, or on the case in trover and conversion, is given by the law: so also, non-performance of promises or undertakings is a trespass, upon which an action of trespass on the case in assumpsit is grounded: and, in general, any misfeasance or act of one man whereby another is injuriously treated or damnified is a transgression or trespass in its largest sense: for which we have already seen(a) that whenever the act itself is directly and immediately injurious to the person or property of another, and therefore necessarily accompanied with some force, an action of trespass vi et armis will lie; but, if the injury is only consequential, a special action of trespass on the case may be brought.

But, in the limited and confined sense in which we are at present to consider it, it signifies no more than an entry on another man’s ground without a lawful authority, and doing some damage, however inconsiderable, to his real property.

So which conception of trespass does Scalia mean to adopt — the broad one or the narrow one? Scalia says that he has “no doubt” that there was a trespass here, but he doesn’t say why or what kind of trespass he has in mind. Scalia quotes Entick v. Carrington for the idea that setting foot on a neighbor’s “close” and “tread[ing] upon his neighbor’s ground” is a trespass. It seems that Entick was relying on the narrow trespass concept of trespass to land, which, after all, was the cause of action alleged in Entick. That obviously isn’t the case in Jones, though: The agents installed the GPS device when the car was parked in a public parking lot, so there was no trespass to land in the traditional sense.

In his concurring opinion, Justice Alito indicates that he takes the majority to be referring to a trespass to chattels cause of action, but as far as I can tell the majority never establishes this. Moreover, the common law doesn’t seem to provide an answer: The common law of searches and seizures provided a defense to a civil tort action, not an independent cause of action. So it’s hard to know what kind of conduct counts as a “trespass” for purposes of the new Fourth Amendment test.

2) Did Jones unintentionally make the use of undercover agents and informants illegal, at least without a warrant or probable cause? This is a long shot, to be sure, but it’s not a frivolous argument. The common law of trespass included the doctrine of trespass ab initio, by which a person who was permitted to come on to your land could be guilty of trespass if they engaged in some sort of misconduct once there. In the first Fourth Amendment challenge to the use of informants, On Lee v. United States, 343 U.S. 747 (1952), the defendant tried to invoke this doctrine. Lee sold opium from his laundry store and one day made incriminating statements to his friend Poy. It turned out that Poy was an undercover informant wearing a wire, and the recording of Lee’s statements was used against Lee at trial. Lee argued (among other things) that Poy’s misleading him rendered Lee a trespasser ab initio, such that Poy’s entry was a Fourth Amendment search. Justice Jackson rejected the argument:

Petitioner contends, however, that Chin Poy’s subsequent ‘unlawful conduct’ vitiated the consent and rendered his entry a trespass ab initio.

If we were to assume that Chin Poy’s conduct was unlawful and consider this argument as an original proposition, it is doubtful that the niceties of tort law initiated almost two and a half centuries ago by the case of the Six Carpenters, 8 Coke 146(a), cited by petitioner, are of much aid in determining rights under the Fourth Amendment. But petitioner’s argument comes a quarter of a century too late: this contention was decided adversely to him in McGuire v. United States, 273 U.S. 95, 98, 100, 47 S.Ct. 259, 260, 261, 71 L.Ed. 556, where Mr. Justice Stone, speaking for a unanimous Court, said of the doctrine of trespass ab initio: ‘This fiction, obviously invoked in support of a policy of penalizing the unauthorized acts of those who had entered under authority of law, has only been applied as a rule of liability in civil actions against them. Its extension is not favored.’ He concluded that the Court would not resort to ‘a fiction whose origin, history, and purpose do not justify its application where the right of the government to make use of evidence is involved.’ This was followed in Zap v. United States, 328 U.S. 624, 629, 66 S.Ct. 1277, 1279, 90 L.Ed. 1477.

By the same token, the claim that Chin Poy’s entrance was a trespass because consent to his entry was obtained by fraud must be rejected. Whether an entry such as this, without any affirmative misrepresentation, would be a trespass under orthodox tort law is not at all clear. See Prosser on Torts, s 18. But the rational of the McGuire case rejects such fine-spun doctrines for exclusion of evidence.

Does the rationale of McGuire survive Jones? If the test for a Fourth Amendment search is established by common law trespass doctrine, then I’m not sure why the “fiction” of trespass ab initio shouldn’t be restored to the Fourth Amendment despite McGuire. As a practical matter, I doubt the Supreme Court would go this way. But if you take the majority opinion in Jones at face value, it seems like an argument worth making.

3) What happens to Kyllo’s “general public use” exception? I read Jones as relying on Kyllo for the idea that there is more than just the Katz test to determine what is a search. I gather then that the Court is casting Kyllo as an example of a case which was not a Katz “reasonable expectation of privacy” case but rather was a common law trespass case. If that’s right, then does that mean the “general public use” inquiry is no longer applicable? After all, the general public use idea was rooted in Katz cases, not the common law of trespass. If use of a thermal imaging device was a search because it was a common law trespass, then presumably it should stay a search regardless of how common thermal imaging devices may be.

State v. Rogers, 38 S.E. 34 (N.C. 1901) (paragraph breaks added); I would suspect that today there wouldn’t even be a prosecution in such a case, even if the statute were more broadly worded:

The defendants were indicted under section 2715 of the Code ...: “Any person who shall discharge from employment, withdraw patronage from, or otherwise injure, threaten, oppress or attempt to intimidate any qualified voter of the state, because of the vote such voter may or may not have cast in any election, shall be guilty of a misdemeanor.”

The indictment charges the defendants with having injured, threatened, oppressed, and attempted to intimidate the prosecutor, a duly-qualified voter, by expelling him from the church of which he and they were members, on account of his having voted the Democratic ticket at the election held in August, 1900. The statute, being penal, must be construed strictly, not by implication, or otherwise than by its strict words and plain signification.

The object of the statute is to secure to the voter the exercise of the elective franchise free from pecuniary loss, personal injury, or physical restraint, neither element of which is embraced in his expulsion from the church. The injury or oppression, if any, done to the voter, was not of a physical nature. While he may have felt mortified or humiliated in being excluded from the fellowship of his associates in the exercise of the rites of that body of Christian believers holding the same creed and acknowledging the same ecclesiastical authority, and to that extent injured and oppressed, yet he suffered no loss of property or gain, nor was he in any way restrained of his liberty or otherwise controlled in the exercise of his personal conduct.... [Quashing of the indictment a]ffirmed.

UPDATE: By the way, it turns out that North Carolina was closely split in 1900, with 54% of voters voting for the Democrats. The expulsion was thus likely based on the particular views of this church, and not on some broad social anti-Democrat sentiment.

FURTHER UPDATE: I just ran across a 1891 Arkansas statute that did ban threat of expulsion from a church based on one’s vote: “No person shall coerce, intimidate or unduly influence, any elector to vote for or against the nominee of any political party, or for or against any particular question or candidate, by any threat or warning of personal violence or injury, or by any threat or warning of ejectment from rented or leased premises, or by the foreclosure of any mortgage or deed of trust, or of any action at law or equity, or of discharge from employment, or of expulsion from membership in any church, lodge, secret order or benevolent society, or by any oath, or affirmation or secret written pledge.” I could find no cases, though, applying this statute.

I’ve recently seen a couple of cases in which someone seems to be promoting lawyers’ Web sites using spam blog comments. Here’s a sample of the most recent incident (with the name of the lawyer blanked out, because he assured me that he told his SEO company to stop doing this):

Aattorney
electricalexamanswers@gmail.com
27.0.111.218
Submitted on 2012/01/14 at 2:41pm
Hi Todd Zywicki,
Mr __ __ like like as attorney cleveland tn.
He is also a law blogger.After he visited your site.He explained some great news from your site.
thanks....

Aattorney
__.__123@gmail.com
27.0.111.218
Submitted on 2012/01/12 at 8:31am
Thank you for your great article.
attorney cleveland tn
cleveland tn attorneys
attorneys in cleveland tn
us attorney cleveland
lawyers in cleveland tn

The first comment included one link to a page on the lawyer’s blog; the second included five such links. When this sort of thing happened (on two occasions, involving two different lawyers), I got in touch with the lawyers, who reported that (1) they had hired some company to get their sites better placed in search engine results, and (2) now that they had learned what the company had done, they were telling the companies to stop doing it (or stopped working with the companies altogether) — understandable, since this sort of thing is a good way to get unfavorable attention online rather than favorable attention.

In any case, I think this might be a helpful alert to lawyers who are hiring someone to try to promote their sites: It’s possible that the promotion might consist of behavior that is par for the course for purported penis enlargement products, but not really in keeping with the sort of reputation that lawyers generally seek to cultivate.

One of the puzzles of Jones is how Scalia’s opinion ended up being the majority opinion of the Court, while Justice Alito’s view is merely a concurring opinion. The puzzle is that the apparent 5th vote for the Jones majority, from Justice Sotomayor, wrote a concurrence strongly hinting that she would accept a far broader rationale something akin to that in Justice Alito’s concurrence in the judgment. The question is, why sign on to Scalia’s opinion instead of Alito’s?

There are a bunch of possible reasons, of course, but one possibility involves the timing of circulated drafts. The Chief assigned the majority opinion to Scalia, who had floated his theory of the case at oral argument. Imagine Scalia circulated his majority opinion quickly, and Sotomayor joined it pretty soon after that. Some time passed, and then Justice Alito sent around his concurring opinion. Justice Alito’s opinion is mostly a criticism of Scalia’s approach, but it then has a relatively brief pro-privacy section at the end that addresses questions not reached by Scalia’s opinion. Imagine Sotomayor read Alito’s opinion and really liked that part of Alito’s opinion. But she had already signed on to Scalia’s draft majority, and it’s considered bad form to un-join an opinion after signing on. It’s especially bad form if you followed the common practice of asking for a few changes to the draft majority opinion as a condition of signing it. Also, while Alito hinted at how he would decide the case, that section is relative brief and quite vague. So Sotomayor might have stuck with Scalia’s opinion as a matter of propriety and good internal court relations, and then written her solo concurring opinion indicating her agreement with much (although by no means all) of Alito’s opinion.

Of course, that’s just one possibility among many.

UPDATE: Over at SCOTUSblog, Tom Goldstein notes a point that I simply missed on my initial reading of the opinions: Alito’s concurring opinion not only rejects the new trespass theory, but further indicates that the installation and short-term monitoring is fine — it’s only long-term monitoring that Alito would say is regulated by the Fourth Amendment. So Sotomayor’s choice wasn’t between a narrow and broad theory, as I had initially surmised, but between two very different theories. Sotomayor joined one and indicated strongly that she would likely favor the other, but she didn’t need to reach that; doing would have required a United States v. Booker-esque combination of two sets of Justices, which in addition to being complicated wasn’t needed because at least the result was settled in this case.

Although the big news today is the Supreme Court opinion in Jones, we also have the Fourth Circuit dismissing the Padilla appeal in a Bivens claim.  Lawfare’s Steve Vladeck explains and comments:

Jack [Goldsmith] just flagged the Fourth Circuit’s unanimous 39-page opinion throwing out Lebron v. Rumsfeld–one of the two pending Bivens suits brought by Jose Padilla arising out of his detention (and alleged abuse) as an “enemy combatant.” Although Padilla’s allegations (if true) would have stated serious violations of his constitutional rights arising out of his long-term incommunicado detention as an “enemy combatant” (and his alleged abuse while in custody), the panel (Wilkinson, Motz, Duncan) declined to recognize a Bivens remedy. There’s a lot to say about Judge Wilkinson’s disturbing opinion for the court–and I’ll try to explain why it’s disturbing below the fold.

The short of Judge Wilkinson’s analysis is encapsulated within the following two passages:

Special factors do counsel judicial hesitation in implying causes of action for enemy combatants held in military detention. First, the Constitution delegates authority over military affairs to Congress and to the President as Commander in Chief. It contemplates no comparable role for the judiciary. Second, judicial review of military decisions would stray from the traditional subjects of judicial competence. Litigation of the sort proposed thus risks impingement on explicit constitutional assignments of responsibility to the coordinate branches of our government. Together, the grant of affirmative powers to Congress and the Executive in the first two Articles of our founding document suggest some measure of caution on the part of the Third Branch. . . . When, as here, these two branches exercise their military responsibilities in concert –- Congress by enacting the AUMF and the President by detaining Padilla pursuant thereto—the need to hesitate before using Bivens actions to stake out a role for the judicial branch seems clear.

In other words, once Congress triggers the use of military force, Bivens should not generally be available if government officers violate the rights of U.S. citizens while ostensibly acting under such authorization. And if that logic wasn’t clear enough, Judge Wilkinson concludes:

Padilla’s complaint seeks quite candidly to have the judiciary review and disapprove sensitive military decisions made after extensive deliberations within the executive branch as to what the law permitted, what national security required, and how best to reconcile competing values. It takes little enough imagination to understand that a judicially devised damages action would expose past executive deliberations affecting sensitive matters of national security to the prospect of searching judicial scrutiny. It would affect future discussions as well, shadowed as they might be by the though that those involved would face prolonged civil litigation and potential personal liability.

Vladeck, we should add, is not persuaded by the Fourth Circuit’s analysis:

[T]o hold, as the Fourth Circuit does, that these factors categorically cut against the availability of a Bivens remedy is to forswear any Bivens claim challenging any governmental abuses committed in the name of protecting national security, even those in cases in which state secrets or qualified immunity would not bar relief–that is, cases in which there is no realistic potential for the disclosure of classified national security information and it is clear that what the government officers did was unlawful at the time of their conduct. Whether or not that was true in Padilla’s case, this is a disturbing result going forward.

In its opinion below in what became United States v. Jones, the D.C. Circuit introduced a new “mosaic” theory of the Fourth Amendment. Under that theory, whether government conduct is a search is measured not by whether an individual act is a search, but rather whether the collective sum of the different acts over time amount to a search. Although that argument didn’t get much play in the Supreme Court briefs or at argument, it surfaced this morning in the Jones opinions. And perhaps the most fascinating aspect of the Jones opinions is that there appears to be a majority ready to embrace the mosaic theory, at least in some form.

Let’s start with Justice Alito’s concurring opinion for himself, Ginsburg, Breyer, and Kagan. Alito’s concurring opinion is mostly devoted to criticizing Scalia’s new trespass theory. But near the end of his concurrence, Alito then turns to how he would decide Jones:

[R]elatively short-term monitoring of a person’s movements on public streets accords with expectations of privacy that our society has recognized as reasonable. See Knotts, 460 U. S., at 281–282. But the use of longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy. For such offenses, society’s expectation has been that law enforcement agents and others would not—and indeed, in the main, simply could not—secretly monitor and catalogue every single movement of an individual’s car for a very long period. In this case, for four weeks, law enforcement agents tracked every movement that respondent made in the vehicle he was driving. We need not identify with precision the point at which the tracking of this vehicle became a search, for the line was surely crossed before the 4-week mark. Other cases may present more difficult questions. But where uncertainty exists with respect to whether a certain period of GPS surveillance is long enough to constitute a Fourth Amendment search, the police may always seek a warrant. We also need not consider whether prolonged GPS monitoring in the context of investigations involving extraordinary offenses would similarly intrude on a constitutionally protected sphere of privacy. In such cases, long-term tracking might have been mounted using previously available techniques

It sounds like Alito is using what I have elsewhere called the “probabilistic” approach to the reasonable expectation of privacy test, where an expectation of privacy is reasonable based on what a reasonable person would expect, and then he is allowing for at least some sort of mosaic aggregation. Thus, echoing the D.C. Circuit, Alito appears to be looking at whether the government conduct taken over time collects an amount of information that is somehow surprising or unexpected.

In his majority opinion, Justice Scalia concludes that the mosaic theory need not be addressed, but that it is a “novelty” that raises “thorny problems” if embraced. Responding to Alito, Scalia writes:

There is no precedent for the proposition that whether a search has occurred depends on the nature of the crime being investigated. And even accepting that novelty, it remains unexplained why a 4-week investigation is “surely” too long and why a drug-trafficking conspiracy involving substantial amounts of cash and narcotics is not an “extraordinary offens[e]” which may permit longer observation. See post, at 13–14. What of a 2-day monitoring of a suspected purveyor of stolen electronics? Or of a 6-month monitoring of a suspected terrorist? We may have to grapple with these “vexing problems” in some future case where a classic trespassory search is not involved and resort must be had to Katz analysis; but there is no reason for rushing forward to resolve them here.

That brings us to Justice Sotomayor, whose concurring opinion was sort of with Scalia, sort of with Alito, and then hints at being even more pro-privacy than either one. Sotomayor calls the Scalia rationale for the case “an irreducible constitutional minimum,” but she then goes on to look favorably on Alito’s opinion:

As JUSTICE ALITO incisively observes, the same technological advances that have made possible nontrespassory surveillance techniques will also affect the Katz test by shaping the evolution of societal privacy expectations. Post, at 10–11. Under that rubric, I agree with JUSTICE ALITO that, at the very least, “longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy.” Post, at 13. . . .

Sotomayor then goes on to discuss the nature of GPS surveillance specifically, and then writes:

I would take these attributes of GPS monitoring into account when considering the existence of a reasonable societal expectation of privacy in the sum of one’s public movements. I would ask whether people reasonably expect that their movements will be recorded and aggregated in a manner that enables the Government to ascertain, more or less at will, their political and religious beliefs, sexual habits, and so on.

Fascinating. What’s particularly interesting to me is that the mosaic theory seems like a revolutionary new approach to Fourth Amendment law, and yet here 5 Justices seem ready to embrace it without even really recognizing how dramatic the change might be or what it might mean. Perhaps that means that the Justices see it as having some non-obvious limitation that makes it narrower than it might seem. Perhaps it only would apply to GPS devices or beepers, for example? Or perhaps the Justices just didn’t think too deeply about the issue and the complications it raises — perhaps because Scalia came forward with his new trespass test and any other theory would just be dicta?

Either way, the biggest surprise of Jones is that the mosaic theory lives. And it may have five votes. As always, stay tuned.

A lot of the early press reports on United States v. Jones reports that the Supreme Court held that the government needs a warrant to install a GPS device. But that’s not correct, actually. The Court merely held that the installation of the GPS was a Fourth Amendment “search.” The Court declined to reach when the installation of the device is reasonable or unreasonable. As the opinion explains on page 12 of the slip opinion:

The Government argues in the alternative that even if the attachment and use of the device was a search, it was reasonable—and thus lawful—under the Fourth Amendment because “officers had reasonable suspicion, and in-deed probable cause, to believe that [Jones] was a leader in a large-scale cocaine distribution conspiracy.” Brief for United States 50–51. We have no occasion to consider this argument. The Government did not raise it below, and the D. C. Circuit therefore did not address it. See 625 F. 3d, at 767 (Ginsburg, Tatel, and Griffith, JJ., concurring in denial of rehearing en banc). We consider the argument forfeited. See Sprietsma v. Mercury Marine, 537 U. S. 51, 56, n. 4 (2002).

So we actually don’t yet know if a warrant is required to install a GPS device; we just know that the installation of the device is a Fourth Amendment “search.”

For the last 40 years, the hornbook law of what amounts to a Fourth Amendment search was that a search occurs when government conduct violates both a subjective expectation of privacy and an objective reasonable expectation of privacy. As of this morning’s decision in Jones, the new doctrine for what is a Fourth Amendment “search” appears to be as follows:

A search occurs either when

(a) A trespassory test is satisfied: (1) a “trespass” occurs, (2) the trespass is onto an enumerated item listed in the Fourth Amendment (“persons, houses, papers, or effects”), and (3) it occurs with the intent “to find something or to obtain information”

or

(b) The Katz test is satisfied: the government conduct violates a subjective expectation of privacy and an objective reasonable expectation of privacy

Today’s majority opinion in Jones announces the trespassory test and applies to to find that the installation of the device with intent to use it was a search. As a result, the Court doesn’t purport to reach the “reasonable expectation of privacy” question. The Court also did not reach when installing a GPS device is a reasonable search, holding that the issue was forfeited because it was not raised below.

UPDATE: At first blush, one question I’m not entirely certain of is what the test is for a trespass. Trespass law has changed over time, and it varies state to state. Civil trespass can be different from criminal trespass. Is the question whether the act would have constituted a trespass at common law, or whether it is a trespass today? Justice Alito’s opinion indicates that he thinks the test is a trespass at common law, but does the majority take a view on that?

In Marbury v. Madison, John Marshall wrote:

The powers of the Legislature are defined and limited; and that those limits may not be mistaken or forgotten, the Constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may at any time be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed are of equal obligation.

Once the Court moves beyond the original meaning of the text to allow Congress to reach activity that is neither “interstate” nor “commerce” (using the Necessary & Proper Clause as its warrant), there still remains the need to establish some limit on these “implied” nontextual powers, lest the national government becomes a government of general powers.  The “express prohibitions” provided by the Bill of Rights don’t count since they equally constrain state governments.  Were these the only constraints on federal power, then the scope of the power of Congress would be exactly the same as the power of states.  And this proposition has always been rejected by the Supreme Court.  As Chief Justice Rehnquist affirmed in Lopez:

We start with first principles. The Constitution creates a Federal Government of enumerated powers. See U.S. Const., Art. I, §8. As James Madison wrote, “[t]he powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.” The Federalist No. 45. This constitutionally mandated division of authority “was adopted by the Framers to ensure protection of our fundamental liberties.” Gregory v. Ashcroft (1991). “Just as the separation and independence of the coordinate branches of the Federal Government serves to prevent the accumulation of excessive power in any one branch, a healthy balance of power between the States and the Federal Government will reduce the risk of tyranny and abuse from either front.”…

So the challenge is to limit, somehow, the scope of the power that lies beyond Congress’s plenary power to “commercce . . . among the several states.”

One possible constraint is political.  But , as John Marshall stated above in Marbury, a “political” constraint which allows the legislative branch to define the limits of its own power is not sufficient.  What is needed is a judicial constraint.  Much more can be said about why political constraints are insufficient, but time and space are limited.  Suffice it to say that, whether or not Marshall (and Rehnquist) are wrong about the need for a judicially-enforced constraint, even the New Deal Court in Wickard declined to adopt “political constaints” as the only constraint on the enumerated powers of Congress.  See Barry Cushman, Rethinking the New Deal Court.

But there are only two types of judicially-enforceable limits.  The first is fact-based.  Examine the “rationality” of a particular measure to see if it is really serving the enumerated power.  This was the method commonly employed by the Supreme Court before the New Deal in both Due Process and Commerce Clause cases, but which the Supreme Court has generally rejected in favor of hypothetical rational basis scrutiny.  The government contends that the power to impose economic mandates on the people is limited by the fact that “health care is different” from other sorts of economic mandates, e.g. a mandate to buy GM cars.  We disagree.  Were this to be a genuine limit, we would be entitled to a hearing to decide this factual question. On remand, the courts would also have to adopt some standard of review to decide whether we or the government were correct in our respective assessments of the facts.  This standard cannot be modern hypothetical rational basis scrutiny, because that would be no scrutiny at all and would fail to provide a judicially-enforceable constraint.  The Justices know this.  While heightened factual scrutiny of the choice of congressional means would not bother me, it runs contrary to the Court’s approach since the New Deal and would surely bother the Justices.

This leaves the approach employed by the Court in Lopez:  identify a judicially-administrable categorical limitation on the implied powers of Congress.   This is my reading of what Justice Rehnquist was attempting to achieve in Lopez: identify a categorical limitation on the implied power of Congress to go beyond the regulation of interstate commerce itself and reach intrastate activity that was not itself “commerce” which would be consistent with prior post-New Deal decisions (“this far”).  So he adopted the nontextual and nonoriginalist distinction between the regulation of intrastate activity that is “economic” (“this far”) but not “noneconomic” (“no farther”) regardless of whether the noneconomic activity could rationally be said, in the aggregate, to substantially affect interstate commerce.

In Raich we asserted that, because Angel Raich’s and Dianne Monson’s activities were noneconomic — no money was being exchanged for marijuana — their conduct fell outside the line the Court had drawn in Lopez and Morrison.  The government contended that Angel’s and Dianne’s activity was “economic” because it substituted for the economic activity of buying marijuana on the market.  Had the Court accepted the position of the government, Raich would have replaced Wickard as the outermost reach of Congressional power and led to an unlimited Commerce Clause/Necessary & Proper Clause power.  As I said during oral argument, every activity, even marital sexual relations, could be construed as “substitute” for something available on the market.

Perhaps sensing this, happily, the Court implicitly rejected the government’s expansive theory, and therefore greatly limited the scope of its holding in Raich, when it held that the production and consumption of a “commodity” was quintessential economic activity, relying on the definition found in a 1966 Webster’s dictionary.  Indeed, by limiting its holding to the particular dictionary definition of “economic” from Webster’s, Raich actually narrowed the scope of Lopez, assuming this was to be the exclusive definition of “economic” that would be employed by the Court in the future.  For example, buying insurance, while broadly “economic” is not the purchase or consumption of a “commodity.”   In this sense, the holding of Raich was limited to a power that had clearly been exercised in the past (“this far”): the power to prohibit the intrastate production and consumption of a commodity.

Justice Scalia’s concurrence in Raich extending the power to reach noneconomic activity when doing so was essential to a broader regulation of interstate commerce, seems more ambitious, which is why the government has relied so heavily upon it throughout this litigation.   Yet I think Justice Scalia was responding to another feature of Raich that was downplayed during the litigation and never explicitly examined.  We were bringing an “as applied” Commerce Clause challenge in which we did not contest the power of Congress to regulate the interstate drug trade.  Neither did we contest the power of Congress to reach the intrastate drug trade in states that had not legalized such trade.  We were attempting to carve out a sub-class of activities from that which Congress was trying to regulate: wholly intrastate cultivation and use of marijuana for medical use as authorized by state law.  Much of oral argument was devoted to defending the cogency of this sub-class.

Although such as applied challenges had been brought before, none had ever succeeded.  I believe that Justice Scalia’s Necessary & Proper Clause focused opinion was his attempt to handle this aspect of the case by explaining why, if Congress could regulate genuinely interstate commerce in intoxicating substances (as we conceded), as part of its broader regulatory scheme, it could also reach this subset of activities that could not feasibly be distinguished from the commerce over which it had control.  For Justice Scalia, the fact that these activities may be noneconomic (not for money) did not make it any less necessary to reach them, or at least so Congress could decide in its discretion.

It remains to be seen whether Justice Scalia will be willing to extend this rationale to a facial challenge to a power to mandate the purchase of insurance by individuals because it is “essential” to the power of Congress to regulate the terms by which insurance companies do business.  This is the government’s contention, but it is a considerable step beyond the problem Justice Scalia was wrestling with in Raich. Recall that, in the facial challenge in Comstock, Justice Scalia joined Justice Thomas’s dissenting opinion in which Justice Thomas reasserted Justice Scalia’s holding in Printz that the means chosen by Congress (commandeering the states) was “improper.”  So Justice Scalia still holds the view that some means of executing the commerce power, while necessary under a rational basis approach, are nevertheless improper.  The question for him is whether his analysis of “necessity” in Raich is similarly qualified by the “impropriety” of the chosen means.

To date, the government has been unable to articulate a “categorical” limitation on the power to mandate that individuals enter into contracts with private parties, yet it has not been bold enough to assert that the only constraint is “political.”  And I do not believe that their “factual” limitation (“health care is different”) will fly.  If the Court does accept this approach, then assuming it also adopts a modern hypothetical rational basis approach, it would effectively be adopting the “political constraints only” position.  Maybe, as in Raich, the Court will simply say that because the “decision” not to buy health insurance is “economic,” as the government urges, it can be reached under Lopez.  But the power to reach economic “decisions” is as capacious as the government’s “substitution” theory in Lopez Raich.  It is a mere fig-leaf to cover the “political constraints only” position that will fool no one if it adopted.  This would not even amount to the “symbolic” federalism reading of Lopez; it would be no federalism at all.  Which, again, is why this case is such a big deal.