Constitution, the Law, and the Courts

January 12, 2021 1:36PM

Pelosi’s Bizarre 25th Amendment Gambit

We keep hearing that this is a rushed impeachment, but the House leadership seems to think there’s plenty of time for a frolic and detour before getting to the main event. Before considering an article of impeachment based on President Trump’s January 6 pre‐​riot rally speech, they’re going to vote on a toothless, hortatory resolution urging Vice President Mike Pence to do their jobs for them. Specifically, the resolution calls on Pence and a majority of Trump’s cabinet to trigger Section 4 of the 25th Amendment, making Pence “acting president” for the remainder of Trump’s term.

Please Clap

In her letter announcing the move, Speaker Nancy Pelosi (D-CA) proclaims that “In protecting our Constitution and our Democracy, we will act with urgency, because this President represents an imminent threat to both.” The House plans to vote on that resolution sometime today, probably, “Tuesday evening at the earliest,” anyway—hey: get off our backs, man!

It’s hard to fathom the logic here, either legally or politically. The Constitution gives the House gives the House the “sole Power of Impeachment.” But the 25th Amendment gives it no direct role in the initial decision to remove. Congress comes in after that decision has been made: receiving notice that the VP and a majority of the cabinet have deemed the president “unable to discharge the powers and duties of his office,” and, some three weeks later, deciding, by supermajority vote in both houses, whether that was the right call (in this case, the clock would run out before that vote).

Nor do I see how the resolution is supposed to make the vice president more likely to trigger Section 4. Does the House leadership know something about Mike Pence’s psychological motivations that’s not apparent to the rest of us? Are they engaged in some sort of advanced game theory or extradimensional chess?

From my limited vantage point, Pelosi’s gambit looks like a waste of time or worse. The vice president’s “servant leadership” approach to his office has often bordered on servility. Pence has long been so reluctant to risk Trump’s ire that it was a genuine and welcome surprise when he refused the president’s anti‐​constitutional demand to toss out electoral votes for Joe Biden. Becoming the first vice president in history to trigger Section 4 and defenestrate a president is a much bigger deal. If Trump riling up a lynch mob against him hasn’t motivated Pence to whip the cabinet and make that move, what would? I’m pretty sure of what wouldn’t: an unenforceable “ultimatum” from the House. Whatever inclination Pence had to trigger section 4, he’s less likely to do it if it’s going to look like Nancy Pelosi forced his hand.

This late in the game, removing Trump via a Senate trial is no longer possible. The best argument for impeachment by the House is its constitutional‐​censure function: making him the only president in history to wear “a second Scarlet I.” Only the “25th Amendment Solution” could bring his presidency to an early end. As it happens, the two remedies aren’t mutually exclusive.

If last Wednesday wasn’t “Peak Trump,” and the president is bent on further abuses, perhaps Pence can muster the, er, “extreme courage” it would take to trigger Section 4. Meanwhile, the House should stay in its lane and stick to the job the Constitution assigns it.

January 11, 2021 11:29AM

The Right to Present Evidence Is Fundamental

The City of Bainbridge Island, Washington, enacted several burdensome zoning ordinances regulating property on its shoreline. A group of landowners on the island challenged those regulations as unlawful for several reasons, making claims under both state law and the U.S. Constitution. But Washington State’s procedural rules wouldn’t allow those landowners to bring their challenge directly in state trial court. Instead, they first had to bring their challenge before a state administrative board, even though that board didn’t have jurisdiction to rule on any of their federal constitutional claims.

After their state‐​law claims were rejected by the administrative board, the landowners were finally allowed to bring suit in a Washington State trial court. But that trial court held that they were limited to presenting the evidence that was already in the administrative record—a record compiled and finalized before they were allowed to actually present their constitutional claims. Even though the landowners had additional evidence going specifically to their constitutional challenges, and even though that evidence would have been admissible if they had been allowed to bring their challenge directly in state court, that evidence was excluded.

A Washington State appellate court affirmed this exclusion and the Washington State Supreme Court declined to review their case. Now the landowners are asking the U.S. Supreme Court to grant review. The Cato Institute has joined the Goldwater Institute to file an amicus brief urging the Supreme Court to take their case and reverse the exclusion of their evidence.

The Due Process Clause of the Fourteenth Amendment guarantees every litigant the right “to present his case and have its merits fairly judged.” Logan v. Zimmerman Brush Co. (1982). As the brief explains, this right must include the right to present evidence necessary to establish a constitutional claim. Even for facial constitutional claims, facts and expert testimony are often necessary to demonstrate standing, to determine whether a constitutional provision is implicated, and to establish the proper scope of review. Yet state rules of administrative procedure frequently trap litigants and deny this due process right by placing them in a Catch‐​22: constitutional claims can only be raised in court if the administrative process has been exhausted, but suits appealed from an administrative process can only rely on the administrative record.

Our brief urges the Court to end this trap and establish baseline standards for when a state must allow evidentiary supplementation of an administrative record. When a citizen’s rights are violated by the decisions of an agency, that person must have a genuine opportunity to present facts to a neutral decision‐​maker to show that the agency acted unconstitutionally. The Court should grant review and reaffirm that bedrock principle of due process.

January 8, 2021 1:14PM

The Blanket Ban on Felons Possessing Firearms Is Unconstitutional

In 2005, Raymond Holloway, Jr. pled guilty to driving under the influence, a misdemeanor under Pennsylvania law. Because Holloway had an earlier misdemeanor DUI, the 2005 offense was punishable by up to five years’ imprisonment. U.S. law prohibits anyone convicted of a misdemeanor crime punishable by more than two years’ imprisonment from possessing any firearm or ammunition.

Since his 2005 DUI conviction, Holloway has been an upstanding, law‐​abiding citizen with no other criminal convictions. He would like to own a firearm for self‐​defense, so he sued in federal court, arguing that the categorical prohibition of firearms possession was unconstitutional as applied to him, a non‐​violent offender. The district court sided with him, finding that he presented no special danger to the public and that his 15 years of lawful, virtuous behavior demonstrate that he is a responsible citizen.

The Third Circuit reversed, over a dissent. The panel majority applied a multi‐​factor test based on virtue, which favored Holloway. Despite this, the majority found that Holloway was in the class of persons excluded from the Second Amendment. They justified the ban as applied to him because the maximum level of punishment Pennsylvania imposed reflected the “seriousness of the offense.” Holloway has petitioned for certiorari to the Supreme Court.

Because fundamental rights cannot be so summarily disregarded, Cato, joined by the Reason Foundation, the Individual Rights Foundation, the Independence Institute, and the Center to Keep and Bear Arms, filed an amicus brief supporting Holloway. Though the Supreme Court announced that the Second Amendment is an individual and not a civil or collective right, lower courts continue to use civil right tests to determine the scope of the Second Amendment. Civil rights, in this context, mean rights like voting and serving on a jury. Those rights are different than the individual right to self‐​defense, and the same test shouldn’t apply.

By letting state legislatures essentially disarm people by defining crimes, the Second Amendment has been relegated as a second‐​class right compared to other individual rights. States couldn’t broadly deny felons Fourth Amendment protections—even though searching and seizing felons without a warrant or probable cause might benefit public safety—and they shouldn’t be able to do so for the Second Amendment.

Moreover, looking at the maximum punishment of a crime is problematic as it treats all offenders the same without engaging in meaningful review. As more and more minor offenses carry criminal penalties, legislatures possess the power to define the scope of the Second Amendment by raising the maximum possible punishment for an offense. Pennsylvania, where Holloway committed his offense, is one of only eight jurisdictions that punishes a second misdemeanor DUI severely enough to implicate the firearms ban. A person’s ability to possess a firearm should not depend on how the state decides to punish an offense.

Where the government wants to strip an individual of his rights, it must demonstrate that the deprivation survives an exacting level of scrutiny. Looking at the maximum punishment of an offense is the sort of “broadly prohibitory” approach that the Supreme Court said is impermissible. While driving under the influence is not admirable conduct, it is not usually the type of offense that means a person should be permanently unable to possess a gun.

January 8, 2021 8:54AM

Reflections on the President’s Conduct

Because the election was close, fair‐​minded persons acknowledge that President Trump had every legal right to investigate possible irregularities. If he uncovered significant fraud, he would and should have taken appropriate steps to challenge the outcome. But the President and his surrogates opted instead to fabricate claims that he had already won the election, the process was totally corrupt, and Americans could not trust the results. Therefore, the Trumpists insisted, millions of voters should be disenfranchised by replacing their chosen electors with alternative slates to be designated by state legislatures or Congress.

Numerous elections have been contested, and final tallies are sometimes delayed pending investigations of misconduct. Accordingly, there would have been no defensible outcry if the President had said: “We have received a number of reports concerning questionable voting practices. We plan to scrutinize those reports and seek appropriate redress if justified. But if the reports are not verifiable, we will accept the outcome, congratulate our new president‐​elect, facilitate a smooth transition, and continue governing the nation to the best of our ability until January 20.”

Sadly, Trump preferred inflammatory disinformation and outright lies – undermining what might otherwise have been a legitimate inquiry. In the process, he dangerously eroded voters’ confidence in our electoral system and its republican foundations. In desperation, he put his personal interests above those of the nation – ironically but predictably lubricating a Democratic takeover of the Senate.

It’s a shame that Trump couldn’t bring himself to deliver a healing concession speech. He had much for which he could take credit – fewer regulations, lower taxes, a booming pre‐​Covid economy, good judges, and selective progress abroad. Indeed, he deserves kudos for out‐​performing the pundits’ 2020 expectations – holding some Senate seats, gaining representation in the House, and capturing statehouses and state legislatures. But rather than conciliation, President Trump decided to incite his more radical supporters, some of whom committed contemptible, pernicious, and violent acts.

Even prior to the appalling episode at the Capitol, Trump’s recorded phone call to Georgia secretary of state Brad Raffensperger arguably violated both federal and state laws. The Georgia statute implicates any person who “solicits, requests, commands, importunes, or otherwise attempts to cause” another person to commit election fraud. The federal law applies to anyone who “knowingly and willfully” facilitates the “procurement, casting, or tabulation of ballots that are known by the person to be materially false, fictitious, or fraudulent.”

During their hour‐​long call, Trump threatened Raffensperger and instructed him to “find” votes. The President’s defense would likely be that his solicitation to commit fraud wasn’t knowing and willful; he intended only to rectify election returns that were fatally defective. That defense is without merit. Even if the votes in Georgia were inherently flawed, the remedy for fraud is not an inducement to more fraud. Such an inducement cannot be excused by alleging voting infractions.

In short, President Trump’s conduct has been unacceptable. To be sure, the nation needs time to heal. So, the decision – urged by some observers – to impeach the President a second time, or remove him from office by invoking the 25th Amendment, may well hinge on prudential rather than legal assessments. Still, at a minimum, a congressional censure – joined in particular by Trump’s Republican enablers – would be both welcome and warranted.

January 7, 2021 3:54PM

Impeachment, the 25th Amendment and Trump’s Final Days

We started the week with an impeachment debate that looked like a rewarmed version of the one we had last year. “Read the transcript!”: when President Donald Trump got on the phone Saturday to lean on Georgia election officials, was it another “perfect call” or a second, sordid shakedown attempt?

By yesterday afternoon we were in entirely new territory: a violent mob storming and trashing the Capitol, four dead, guns and explosives seized, Congress evacuated, Vice President Mike Pence fleeing a mob inspired by the president’s tweets. “We will never concede,” Trump fumed at the pre‐​riot rally, “you don’t concede when there’s theft involved. Our country has had enough. We’re not going to take it any more.… if you don’t fight like hell, you’re not going to have a country any more.” Howard Beale only asked people to yell out of their windows, and he didn’t have nuclear weapons.

Mostly Peaceful

As of Wednesday night there were at least 32 House Democrats publicly calling for a second impeachment. Though both houses are supposedly done working until after inauguration, an article of impeachment has already been drafted for circulation. And today, the incoming Senate Majority Leader called on Pence and the Cabinet to trigger the 25th Amendment and remove Trump from power.

Can either of those things be done? Both? How might the Constitution’s presidential defenestration provisions work here? Let’s take a look.

First, impeachment: the article of impeachment being circulated now charges Trump with making “statements that encouraged—and foreseeably resulted in—imminent lawless action at the Capitol.” Is incitement to riot an impeachable offense? Yes: it’s not even a hard question.

“High Crimes and Misdemeanors” is a broad term designed to reach serious misconduct that demonstrates unfitness for high office: not just criminality or abuse of official power but, as the Nixon‐​era House Judiciary Committee report on “Constitutional Grounds for Presidential Impeachment” put it, conduct “grossly incompatible with the proper function and purpose of the office.”

In fact, the first impeachment case to result in conviction and removal from office, Judge John Pickering (1803) involved a federal judge whose main offense was showing up to work drunk and behaving in a “profane and indecent manner … degrading to the honor of the United States.” The 10th article of impeachment against President Andrew Johnson, approved by the House in 1868, charged the president with “a high misdemeanor in office” based on a series of “intemperate, inflammatory, and scandalous harangues” he’d delivered in an 1866 speaking tour. And Johnson didn’t incite a riot.

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January 7, 2021 11:44AM

Mob Rule Is No Path to Liberty

Yesterday, Congress was violently disrupted as it performed its constitutional duty. This was a direct attack on the Constitution of the United States, the rule of law, and our constitutional republic.

For more than two months President Trump has claimed, without plausible evidence and through multiple recounts and court cases, that he won the presidential election. As Cato scholars and many others have explained, the president’s attempts to overturn the election are factually and legally baseless. His allegations of fraud have been consistently rejected by courts, state legislatures, governors and secretaries of state, and members of both parties in Congress.

Despite this, the president has persisted, and too many members of Congress have echoed his claims. By doing so, they have helped stoke the flames of distrust and division in ways that present a profound threat to liberty, and they must bear some responsibility for the actions that have followed.

Our colleague Walter Olson wrote in June, during protests against police violence, “It should not be that hard to distinguish between peaceful, lawful assembly in pursuit of political causes, on the one hand, and property destruction, assault, intimidation, looting, and riot, on the other.” This remains true.

The violent disruption of constitutional processes is unacceptable and must be rejected unequivocally. Mob rule is no path to liberty. Attempting to forcibly keep a defeated president in power strikes at the core of the Constitution’s provisions for protecting the rights and liberties of the American people.

The Cato Institute has long worked to encourage people everywhere to better understand and appreciate the principles of government that are set forth in America’s Founding documents. Among these principles is the peaceful transfer of power after free and fair elections. The assault on the Capitol is a tragic violation of these principles. We condemn these actions in the strongest terms, support the rule of law and the Constitution, and reject the attempts to overturn the results of the 2020 presidential election.

Having had his day in court, the president must stop disputing the election results and prepare immediately for the transition. We urge all elected officials to condemn lawlessness and violence and to commit to the truth, the Constitution, and the peaceful transfer of power.

January 5, 2021 1:48PM

It’s Time to Stop Protecting Unconstitutional Judges

Willie Carr and John Davis are both social security claimants whose applications for disability payments were denied by administrative law judges (ALJs) of the Social Security Administration (SSA). Those ALJs, like all social security ALJs at the time, were hired by agency staff members with no involvement from the social security commissioner. A short while after Carr and Davis had their claims denied, the Supreme Court decided Lucia v. SEC (2018), holding that ALJs of the Securities and Exchange Commission are “officers of the United States” and must be appointed in the manner that the Constitution’s Appointments Clause requires—by the president, the head of their department, or a court.

In light of Lucia, there’s no dispute that Social Security ALJs are also “officers of the United States” and that their hiring by agency staff violated the Constitution. The SSA admitted as much when the commissioner attempted to rehire all the ALJs herself. The ALJs who decided Davis and Carr’s claims were thus appointed improperly, and the remedy for that defect is normally a new hearing before a properly appointed ALJ.

But when Davis and Carr asked for a new hearing before a new ALJ, both of their requests were denied. The Eighth and Tenth Circuits, respectively, both held that they had waived any right to raise an Appointments Clause objection in federal court because they had not raised it during their hearings before the improperly appointed ALJs themselves. In administrative law parlance, the courts held that Davis and Carr were barred by the doctrine of “issue exhaustion,” a theory that an issue must be raised at every stage of an administrative process to receive judicial review.

Both Davis and Carr appealed to the Supreme Court, which granted and consolidated their cases. The Cato Institute has joined the New Civil Liberties Alliance to file an amicus brief supporting them. As explained in our brief, there is no federal statute or regulation preventing courts from considering issues not raised in a social security hearing. Creating a judge‐​made bar to such claims is particularly inappropriate here because the SSA specifically told its ALJs not to address any Appointments Clause arguments if they were raised. It thus wouldn’t have made any difference if Carr and Davis had raised the issue in their ALJ hearings.

Further, issue exhaustion rules are only appropriate for issues where, at a minimum, an administrative agency possesses the expertise and fact‐​finding ability to act in the role of a court of first review. That’s not the case here; non‐​adversarial social security hearings are not designed to review questions of constitutional law, and social security ALJs profess no expertise on the subject.

Davis and Carr raised their Appointments Clause issue as soon as they reached federal court, and that should have been enough for their claim to be addressed on the merits. The Supreme Court should reverse the Eighth and Tenth Circuits and hold that judge‐​made issue exhaustion is inappropriate for the type of structural constitutional claims that Carr and Davis have raised.

The case Carr v. Saul will be argued at the Supreme Court in early March.