Eugene Volokh's Blog, page 2625
January 27, 2012
SOPA Debate on Tuesday
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Law School at a Temple Law School Federalist Society event about the recently introduced (and even-more-recently withdrawn) copyright legislation (SOPA and PIPA).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.
Constitutional Cliffhangers: Final Thoughts on Staying Out of Trouble
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.
Most Americans Want Mandate Struck Down
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)
Constitutional Cliffhangers: When Law and Politics Mix
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.
January 26, 2012
Constitutional Cliffhangers: Responses to Some Comments
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 :)
Voters as Modern-Day Phrenologists
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.
Jeb Bush on Immigration
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.
Hendrik Hertzberg Endorses Supreme Court Term Limits
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.
Interview with David Segal on His NYT Law School Series
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.
Constitutional Cliffhangers: Third-Term Presidents
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."
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