Cato Publications

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 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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December 18, 2020 4:35PM

The Presidency Is Interested in You

Will President Joe Biden #MADA: “Make America Dull Again”? Let’s hope so, Joe Ferrullo argues in a column for the Hill this week. Ferrullo’s hardly alone in hoping for a transition from “this is not normal” to a new era of normalcy. “Sleepy Joe,” President Trump’s moniker for Biden, was supposed to be an insult, but to a silent majority of Americans, it might have sounded like a welcome break. Wouldn’t it be nice to forget about the president for hours—even days—at a time?

Alas, that’s not going to happen—or so I argue in a forthcoming piece for Reason magazine: “Good luck forgetting about presidential politics when the president has the power to shape what our health insurance covers or unilaterally forgive student loans; the ability to launch a trade war from his couch—or a shooting war with Iran.” It’s not just Trump’s incontinent and erratic personality that’s made the presidency one of our biggest fault lines of polarization. It’s the fact that the president, increasingly, has the power to reshape vast swathes of American life.

I came across a vivid illustration of that point recently, in, of all places, the New York Times’ monthly “For Kids” supplement. (The banner of every edition features the tag line “THIS SECTION SHOULD NOT BE READ BY GROWN UPS,” but I cheated.)

The presidency‐​themed edition that ran just before Election Day promised, among other things, to tell kids “How to Become President” (never explaining why you’d wish such a fate on them). 

...and that’s just the risk he takes

But what really piqued my interest was a piece billed as “5 Ways the President Can Change Your Life.”

“The president and his administration help determine things that mostly only adults care about,” the Times tells the tykes, “but they also make decisions that directly affect kids’ lives.” He plays a key role in determining what goes into “Your School Lunch,” “How Safe Your Toys Are,” and, using federal aid as leverage, even “What Sports You Can Play”: “Trump’s Department of Education is pressuring Connecticut to prevent trans athletes from competing in track and field.” With authorities granted (and seized) over immigration, the president has the power to determine “Who Can Be a Citizen.” In fact, notes the Times, his authority extends to “Just About Anything.” Though bills are supposed to go through Congress before they become law, “the president can act on his own and issue something called an executive order, which can have the effect of law even though it technically isn’t one.”

As a factual matter, none of that is wrong. But inquiring young minds might wonder whether it’s wise to have a single, nationwide, presidentially‐​imposed policy on which sports which kids get to play or which bathrooms they can use. Or why it should be the president’s role to decide who gets to come to America and who gets to stay? And why should he have the power to make law with the stroke of a pen? Those are good questions for the grown‐​ups too.

If even schoolchildren, per the Times, don’t have the luxury of forgetting about the president, it’s a sure bet that the rest of us can’t afford to either. You may not want to be interested in the presidency, but the presidency is interested in you. As vice‐​president elect Kamala Harris tweeted a week or so after the election: “Know that @JoeBiden and I will wake up every single day thinking about you and your families.” Please… don’t?

Coincidentally or not, right next to the article on five ways the president can change your life, the NYT Kids’ section featured a piece on “Fighting about Politics.” It introduces one Giselle Weingarten, 13, who lately has “gotten really into politics” and “decided she’s a Libertarian, which means she thinks the government should have a minimal role in people’s lives.” “‘It’s very frustrating to talk to people who don’t share my beliefs,’ says Giselle, ‘I just want to yell: that sounds so ridiculous!’” Giselle, I feel your pain.

September 15, 2020 11:45AM

Introducing “Pandemics and Policy“

The 21st century has so far seen three great crises: the terrorist attacks of September 11, 2001, the financial collapse of 2008, and the COVID-19 pandemic—which has by itself already inflicted a greater toll in life, liberty, and prosperity than its two predecessors combined. And just as COVID has upended our daily lives, it’s transformed the political terrain, with governments at all levels exercising emergency powers rarely seen outside the context of total war.

But “panic is its own contagion,” and with so much at stake, what’s needed now is a calm, realistic assessment of the choices ahead—a guide to policies that can stem the damage while avoiding permanent transformation of American life and law. The Cato Institute intends to meet that need with the new series of policy‐​focused essays we’re debuting today.

The aim of Pandemics and Policy is to address “what went wrong, what we’ve learned, and how to prepare for the next time,” providing an issue‐​by‐​issue roadmap out of danger and back to normalcy. As with Cato’s longstanding Handbook for Policymakers, each entry in the series begins with a list of action‐​items for lawmakers; but unlike the traditional bound‐​volume Handbook, Pandemics and Policy will be published serially online, starting with the 10 essays released today.

Not long after we first had the idea for this project, I went back to look at the Cato Handbook editions released after prior national emergencies. It wasn’t hard to discern a running theme: in each case, the Beltway intelligentsia issued an indictment of the American heritage of limited government. “Well before the wreckage of the World Trade Center had stopped smoldering,” Ed Crane and David Boaz observed in the first post‐​9/​11 Handbook, pundits and pols “were eagerly heralding the ‘fall’ of libertarianism and the ‘death’ of small‐​government conservatism. September 11 had proven—had it not?—the necessity of a muscular central government with sweeping powers.” By the decade’s end, as the country struggled to recover from the worldwide financial collapse, Crane and Boaz noted the cognoscenti’s insistence “that the credit crisis means ‘the end of libertarianism’ or even more dramatically ‘the end of American capitalism.’’’

Thankfully, reports of those deaths were greatly exaggerated. But the novel Coronavirus that reached U.S. shores in early 2020 has provided a new rationale for those seeking radical change to American institutions: another serious crisis they’re determined won’t go to waste. The New York Times editorial board, for example, frames the pandemic as a Civil War/​Great Depression‐​scale constitutional moment that should be seized upon to uproot inequality and transform health care, housing, education, and “the balance of power between employers and workers.” For too many public intellectuals and political leaders, permanent transformation is the goal—“there are no libertarians in a pandemic,” they insist, nor should there be.

Those of us at Cato beg to differ. To be sure, a black‐​swan event like a once‐​in‐​a‐​century pandemic would present a challenge to any political philosophy. But from the massive regulatory failures that stifled test development, to archaic restrictions that slowed the health‐​care sector’s response, the U.S. response to the COVID-19 pandemic has been a disaster compounded by government overreach—as Charles Silver and David Hyman put it in the piece that leads off this collection, “a master class in government failure.”

The 10 essays we’re publishing today provide a principled overview of the good, the bad, and the simply difficult policy choices presented by the spread of a deadly communicable disease. They identify errors to be avoided, such as a backlash against international trade or a dangerous enhancement of public‐​health surveillance authorities; they also provide roadmaps toward a decentralized and flexible education system and an inclusive economic recovery that benefits those hit hardest by the post‐​COVID contraction. In the weeks and months to come, Pandemics and Policy will treat the entire range of Cato’s policy work, providing lawmakers with an actionable guide to policies that can harness American ingenuity and foster a resilient society capable of meeting the challenges ahead.

September 14, 2020 9:06AM

Another President, Another Unfortunate Innovation in Executive Power

A couple weeks ago, I blogged about “an unfortunate innovation in executive power” during the Obama administration, which I called “leverage policymaking.” In a nutshell, “leverage policymaking” entails regulatory agencies using individual transactions with large corporations—such as enforcement or licensing actions—to achieve broad policy results.

Last week, Cato publishedLegal Policy Bulletin about another unfortunate innovation in executive power, but this one was pioneered by the Trump administration. I call it the “ad hoc administrative state”; below, I’ve excerpted the short paper’s executive summary:

A hallmark of the Trump administration has been its creation of significant administrative programs on the fly, based on ambiguous or implied textual authorities, and without any public input. This paper discusses four such initiatives involving almost $40 billion in benefits and dispensations from more than $400 billion in tariffs. The programs discussed in this paper were launched after summary notices amounting to a total of 28 pages in the Federal Register. Rarely, if ever, has so much administrative policy been rendered in so few words. Far from reflecting the mere execution of the law, these programs instead take on the attributes of core congressional prerogatives—namely, the power to spend public funds and regulate international commerce. To date, Congress has acquiesced to these developments. If lawmakers remain passive, future presidents will build on Trump’s template, which reflects an unfortunate innovation in executive power.

Read the whole thing here.

September 8, 2020 12:37PM

Independence in Content Moderation

Social media managers cannot tolerate all speech on their platforms. They are obligated to maximize value for their shareholders. Leaving some kinds of speech on a platform would drive some users away. So social media managers establish rules intended to maximize the number of users. Managers also hire content moderators to enforce the rules. Users that get thrown off have no complaint. When they joined the platform, they agreed to the rules and to how they are enforced. End of story.

Except it’s not the end of the story. Social media managers do not seem to believe that mutual consent to rules and their application is enough to make content moderation legitimate. For present purposes, I simply accept this belief; we need not inquire into its validity. If consent is not enough, social media need other justifications for legitimacy. Some social media managers embraced a judicial model: due process would foster legitimacy. For example, Facebook instituted written rules whose enforcement could be ultimately appealed to an Oversight Board (OSB).

How might an appeals process be legitimate? The Charter, Bylaws, and Code of Conduct for OSB members mention the words “independent” or “independence” 28 times. Here are a few examples. The OSB is established by “an independent, irrevocable trust” which oversees administrative matters. The purpose of the OSB "is to protect free expression by making principled, independent decisions about important pieces of content…” OSB members are required to "exercise neutral, independent judgment and render decisions impartially.” Moreover, OSB members "must not have actual or perceived conflicts of interest that could compromise their independent judgment and decision-making.” The Bylaws say members "will exercise neutral, independent judgment and render decisions impartially.”

The adjective independent has many meanings. The most relevant here is "not subject to control by others." Many fear social media content moderation will be dependent on tech companies' financial priorities. The more successful social media are (and will be) owned by their shareholders. Their managers will have a duty to maximize value for those shareholders. What's wrong with that? Critics say profit maximizing leads social media to tolerate speech that harms others. Social media seek to engage users and keep them on a platform, thereby maximizing revenue. Critics assert, however, that some speech that harms others also engages users. Social media can protect users only by failing to maximize revenue. In this way, it is argued, privately-owned social media are thought to face a potential conflict between their obligations to their shareholders and the independence of their content moderation (including an appeals process).

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August 26, 2020 1:27PM

The Debate over Mail‐​in Voting, Ballot Harvesting, and More

My latest legal policy bulletin, with just‐​departed Cato legal associate James Knight, is up. We tackle the difference between all‐​mail and absentee‐​option voting, concerns about ballot integrity and ballot harvesting, and other issues that have arisen as we head into an election in uncertain times. Here’s the opening paragraph:

The ongoing pandemic has necessitated dramatic changes to nearly every aspect of American life. The ways we work, shop, eat, and socialize have been radically restructured to protect our own health and that of our communities. This November, that radical restructuring will extend to the way we vote. Changes to our voting systems to safeguard public health, such as by allowing mail‐​in voting, are sorely needed, particularly if fears of another COVID-19 wave in the fall come true. At the same time, hastily switching from in‐​person voting to more‐​anonymized systems with which the states lack experience creates the potential for chaos, errors, and decreased electoral legitimacy in the eyes of voters. With little more than two months until the election, states must finalize decisions on what they are doing and communicate those plans to their citizens and the country as a whole.

As they say, read the whole thing.