Topic: Constitution, the Law, and the Courts

Joe Biden on Impeachment for Illegal Warmaking

I don’t know if the moderators of tonight’s Democratic primary debate are taking requests, but here’s my question for former vice-president—and current frontrunner—Joe Biden:

“Mr. Biden, the last time you were running for president, you promised that if George W. Bush ‘takes this nation to war in Iran, without congressional approval, I will make it my business to impeach him.’ Now, over a decade later, war with Iran is again on the horizon, and just this Monday, the president said he does not need congressional authorization to wage war. If he acts on that belief, will you call for Congress to impeach President Trump?” 

In December 2007, when then-Senator Biden made those remarks, the crowd in Davenport Iowa answered with hearty cheers.

At the time, there was a serious concern that President Bush would use prior congressional authorizations–like the 2002 Iraq War resolution or the post-9/11 Authorization for the Use of Military Force (2001 AUMF)–as cover for a new war with Iran. A month before Biden’s speech, then-Senator Barack Obama introduced a joint resolution designed to foreclose that option. “There is absolutely no reason to trust that this Administration will not use existing congressional authorization to justify military action against Iran,” Obama warned.

Here we are again: now, nearly 12 years later, there’s no reason to trust that this administration won’t use the 2001 AUMF as justification for war with Iran. Secretary of State Mike Pompeo has suggested as much, behind closed doors, to members of the House Armed Services Committee. 

Joe Biden knows something about the 2001 AUMF: he voted for it, three days after 9/11. And, like practically every other member who passed that resolution, he described it as a limited measure, aimed at those who were responsible for the attacks. As the New York Times reported after the vote: “Senator Joseph R. Biden Jr., chairman of the Foreign Relations Committee, said Congress was not ceding its constitutional authority to declare war or intending to write a measure like the Gulf of Tonkin resolution, which President Lyndon B. Johnson used in 1964 to justify escalation of the war in Vietnam.” 

The 2001 AUMF has now been in effect almost three times as long as the Gulf of Tonkin Resolution, and the current administration thinks it can draw on that authority to wage war over the “Gulf of Oman incident.”  

In the short term, Congress has limited means available to it for heading off war. Most of the measures currently being debated on the Hill would have to make it past a presidential veto. A sense-of-Congress resolution threatening impeachment for unauthorized warmaking would not. Biden’s no longer in a position to do more than advocate such a move, but it seems to fit with how he described his 2007 impeachment threat: “a prescriptive way to make clear to this man that there will be severe consequences, because [attacking Iran] would be the most dire action we could take at this moment.” Back then, Biden insisted that an unauthorized strike on Iran would be an impeachable offense. Does he still think so today? 

If he got the question, my guess is that Biden would answer, “yes.” Willingness to use the dreaded “I-word” might help shield the Democratic frontrunner from attacks on his left flank. Of course, given Biden’s service as vice president in an administration that ran roughshod over congressional war powers—that answer might also give rise to some awkward questions. But this is the business he’s chosen. 


Cato Does Well in a Tumultuous Supreme Court Term

After a bruising and highly partisan confirmation fight, Justice Brett Kavanaugh took his seat on the Court as the term began. Replacing the predictably unpredictable Justice Anthony Kennedy, Justice Kavanaugh seemed poised to move the Court in a decidedly rightward direction. But looks can be deceiving. In a few high-stakes cases and, especially, petition rejections and other votes on the “shadow docket” (as opposed to fully briefed and argued cases), Kavanaugh demonstrated a dynamic – not wholly originalist/textualist or “conservative” – jurisprudence. Notably, he was the swing vote to allow a questionable antitrust lawsuit to proceed against Apple.

And Kavanaugh has tried to keep a low and agreeable profile, easily becoming the justice most often in the majority (over 90 percent of the time). He also showed how different he was from his fellow Trump appointee Justice Neil Gorsuch, who is rapidly becoming a libertarian darling. Kavanaugh actually aligned about as much with Justice Elena Kagan as with Gorsuch.

While Chief Justice John Roberts recently has become, by some metrics, the swingiest member of the bench, there could in future be a reinvigorated conservative block that comes to dominate the Court – especially if President Trump is given the opportunity to fill another seat on the bench. Yet for all the doomsday prophesying from progressive court-watchers, eight cases saw one “conservative” justice cast the deciding vote alongside his “liberal” colleagues (four of them involved Justice Gorsuch, in criminal procedure cases). Indeed, of the twenty 5-4 decisions this term, only seven had a “conventional” split of conservatives over liberals. In a more typical term, with more high-profile cases with ideological salience, perhaps we’ll see the conservative bloc flex its muscle, but not this year.

Cato filed amicus briefs in 16 cases that the Court heard in the 2018-2019 term, including whether Congress may delegate to the Attorney General the authority to modify sex offender registration requirements (implicating the nondelegation doctrine), to the validity of a state law that refused liquor licenses to people failing to satisfy in-state residency requirements (in potential conflict with the dormant Commerce Clause). Mirroring last year’s 11-3 win-loss count, Cato’s side prevailed at a 12-4 clip.

Overall, the term had its fair share of winners and losers. Among the winners were American Legion v. American Humanist Association and Knick v. Township of Scott. In the former, a seven-justice majority held that a WWI memorial cross in a municipal park did not violate the Establishment Clause (“separation of church and state” in not wholly accurate layman’s terms). In the latter, the Court ruled that challenges to state or local eminent domain actions could be brought in federal court, without claimants first having to exhaust their state-court options. Both were clear victories for liberty and speak to the two newest justices’ commitment to our constitutional order. Among the losers was Gamble v. United States, in which the Court upheld the “separate sovereigns” doctrine that allows both state and federal courts to convict an individual for the same underlying action.

Here’s the full breakdown, in the order the opinions arrived:

Winning side (12): Weyerhaeuser Company v. U.S. Fish & Wildlife Service; Timbs v. Indiana; Garza v. Idaho; Frank v. Gaos; Merck Sharp & Dohme Corp. v. Albrecht; Return Mail, Inc. v. U.S. Postal Service; Manhattan Community Access Corp. v. Halleck; American Legion v. American Humanist Association; Knick v. Township of Scott; Iancu v. Brunetti; Tennessee Wine & Spirit Retailers Association v. Thomas; Kisor v. Wilkie.

Losing side (4): New Prime, Inc. v. Oliveira; Gamble v. United States; Gundy v. United States; Mitchell v. Wisconsin.

Next term is shaping up to be an exciting one. This fall, the Supreme Court will hear cases striking at the heart of the culture war – and others that, though less controversial, are of great national import. The Court will decide whether to apply to the states’ the Sixth Amendment’s guarantee of a unanimous jury verdict for criminal convictions, if Title VII of the Civil Rights Act protects transgender and homosexual employees from gender- and sexual-orientation-based discrimination, and the constitutionality of New York City’s ban on transporting locked and unloaded handguns. Unfortunately, the Court declined to take up a case that could have limited the president’s congressionally delegated power to impose tariffs in the oft-flimsy name of “national security.” But in light of Justice Samuel Alito’s concurrence in Gundy – indicating a willingness to join his dissenting colleagues in reexamining the Court’s expansive reading of Congress’s delegation of legislative power – we’re hopeful that the Court changes course at some point. But for now, we must continue to wait.

I’ll have more to say in future commentary, but if you’d like to learn about all these cases and trends, from the perspective of Cato-friendly scholars and lawyers, register for our 18th Annual Constitution Day Symposium, which will be held September 17 (Constitution Day). That’s also when we’ll be releasing the latest volume of the Cato Supreme Court Review, the editing of which has now passed to my colleague Trevor Burrus as I rediscover what it’s like to use August for vacation and other summer fun rather than checking citations and turning galleys.

Partisan Gerrymandering: Time To Get Serious About Remedies

A constitutional wrong to which there is no remedy? For decades the Supreme Court has held severe partisan gerrymandering to be a violation of equal protection, but for just as long it has proved unwilling to convert that holding into any sort of solid remedy. In last year’s Cato Supreme Court Review I described the resulting situation as the “ghost ship of gerrymandering law,” drifting on as precedent, yet abandoned by a majority crew.

Today in Rucho v. Common Cause and Lamone v. Benisek Chief Justice Roberts as expected recruited the votes of newcomers Neil Gorsuch and Brett Kavanaugh for the position identified with Justices Sandra Day O’Connor and Antonin Scalia that gerrymandering is a political question to which the Constitution provides no judicial remedy.  

If partisan gerrymandering is a substantial evil worth fighting – and I believe it is – we should now get serious about finding that remedy through other means. The Constitution’s Elections Clause provides that “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations,” and in fact Congress has in the past prescribed to the states standards for districting. These include standards on compactness, a vital principle of good districting that all by itself would disallow many of the most garish gerrymanders by which U.S. House members reach the Capitol. Countering the gerrymandering of state legislatures is a tougher challenge, but even in states without a process for ballot initiatives it is a natural issue for reformist governors and others who run in non-districted races. 

Around the country, machine politicians must be thinking they’ve got a free hand to draw maps even worse than the ones last round. We shouldn’t let them. 

The Auer Doctrine Suffers Pyrrhic Victory in Kisor v. Wilkie

Sometimes it’s possible to lose in name only. Consider, for example, Cato’s position in Kisor v. Wilkie, which the Supreme Court yesterday decided.

By a 5 – 4 vote, the Court upheld the Auer doctrine, or binding judicial deference to an agency’s interpretation of its own regulation. Only four Justices actually validated the Auer doctrine; Chief Justice Roberts provided the fifth vote solely out of respect for precedent. In a brief supporting the petitioner, Cato had argued that the Court should overturn Auer, so technically our position lost.

Nevertheless, the opinion of the Court “reinforced” and “expanded on” the doctrine’s limits. In Part II.B, Justice Kagan set forth several “markers” to guide lower courts regarding the boundaries of Auer deference. In practice, these limits gut the doctrine. As rightly observed by Justice Gorsuch, Auer emerges “maimed and enfeebled.” And because Auer deference has been rendered impotent, opponents of the doctrine effectively “won,” even though we officially “lost.”

So, how did the Court reduce Auer deference to a “paper tiger”? Justice Kagan set forth three big limitations.

The first is a requirement for courts to discern whether the regulatory text is ambiguous. While it might seem obvious that judges should ensure that a legal text is ambiguous before deferring to an agency’s interpretation, courts routinely skipped any meaningful textual analysis before assuming a deferential posture under the Auer framework. In an empirical study, I found that circuit courts failed to meaningfully examine the regulatory text about 35 percent of the time when they applied the Auer doctrine over a 15-year period. The upshot is that there’s a lot of room for courts to improve their craft when it comes to reviewing regulatory interpretations.

Kisor’s second limitation on Auer deference is a requirement that an agency’s regulatory interpretation reflect agency expertise. I expect that this “marker” on Auer’s domain will have the greatest influence on controversies over how to interpret an agency’s procedural regulations. After all, courts are more expert than agencies where due process is implicated. As a related aside, it bears noting that Kisor pertained to a dispute over the regulatory term “relevance” in an evidentiary context, which seemingly rests squarely in the wheelhouse of judicial expertise. Justice Kagan, however, did not draw this connection.

The third significant limitation on Auer was Kagan’s concession that binding deference is “rarely” warranted when an agency has changed its regulatory interpretation. This is huge; by itself, this call for interpretive consistency would have provided a mortal wound to the Auer doctrine. If a regulatory provision is of any consequence, and if it has existed for longer than one presidential administration, then there are vanishingly small odds that the agency’s interpretation has remained consistent. By holding that these interpretations would “rarely” achieve deference, the Court performs most of the work that goes into “enfeebling and maiming” the Auer doctrine.

Today’s unsung hero is the Solicitor General of the United States, Noel Francisco. Justice Kagan didn’t come up with these “markers” on her own. Rather, she borrowed them from the SG’s brief. As I previously explained, the SG’s unusual Kisor brief asked the Court to check the Auer doctrine, even though such a reform would diminish the government’s power. During oral arguments, Justice Kagan seemed concerned about the government’s anti-Auer argument, and she questioned in passing whether the petitioner and government were sufficiently adversarial. Given these apparent reservations, I’m a bit surprise she wholesale adopted the government’s arguments. In any case, the Solicitor General deserves kudos.

Although Supreme Court Doesn’t Overrule Judicial Deference to Agencies, It Cuts It Back Big-Time

As the Court often does, in Kisor v. Willkie, it made a big correction in an important legal area without formally overruling a weak or misapplied precedent. All nine justices agreed that courts need to work harder to ensure that a regulation truly is ambiguous before giving the agency re-interpreting it any sort of deference.

In other words, the Court limited the number of cases where judges defer to agencies, while setting out standards for evaluating those cases that boil down to “when the agency is correct and brings its expertise to bear, having considered the reliance interests of those being regulated” rather than just making legal or political judgment calls willy-nilly. That sounds like reining in the administrative state!

At first blush, Justice Neil Gorsuch’s magisterial opinion that concurred only in the judgment (joined by three colleagues), which would’ve thrown out the Auer deference doctrine altogether, reads like a dissent in all but name. But Chief Justice John Roberts (who joined the majority opinion, largely on stare decisis grounds), echoed by Justice Brett Kavanaugh (who joined Gorsuch’s concurrence), shows that in practice the distance between the two isn’t all that great. And this particular case illustrates that point, given that the lower-court opinion is vacated because all nine justices agree that it didn’t rigorously vet what the agency did.

At bottom, Kavanaugh makes the perfect analogy that sums up the unanimous Court’s position: “Umpires in games at Wrigley Field do not defer to the Cubs manager’s in-game interpretation of Wrigley’s ground rules.” Administrative agencies are now on notice that it’s not “anything goes” when they decide to rewrite their own rules, that judges will hold their feet to the statutory fire.

In short, while Kisor didn’t overturn Auer, it represents a pretty good start at limiting executive-agency overreach.

See here for more background and to read Cato’s brief in the case, which was joined by superstar law professors Jonathan Adler, Richard Epstein, and Michael McConnell.

Supreme Court Toasts Economic Liberty in Tennessee Wine Case - Cheers!

This morning, in a win for wine-drinkers and freedom-lovers alike (but I repeat myself), the Supreme Court struck down a heavily restrictive Tennessee law that prevented anyone but longtime state residents from getting liquor licenses. The provisions required applicants for an initial license to have lived in the state for two years and for a renewal of that to reside for 10 years, and prevented corporations from getting licenses unless all stockholders were residents. This hurt both would-be small business owners and large distributors like Total Wine & More (one of the parties; full disclosure: I have reserve status in its loyalty program).

It’s terrific that a lopsided majority of justices (7-2) thus preserved economic liberty and interstate commerce, as against a flawed claim that the 21st Amendment (which repealed prohibition and gave states the power to regulate the importation of alcohol) somehow gives states the power to impose otherwise unconstitutional business regulations. As Justice Samuel Alito put it in his majority opinion, Section 2 of the 21st Amendment “is not a license to impose all manner of protectionist restrictions on commerce in alcoholic beverages.”

To put a finer point on it, states’ power to regulate alcohol doesn’t include the power to protect established businesses against newcomers that want to serve Volunteer State consumers. When a state law discriminates against interstate commerce or favors in-state economic interests over out-of-state interests, the Supreme Court has generally struck down the statute without further inquiry. This fundamental rule stems from the Framers’ concern that, left unchecked, states would enact commercial regulations favoring their own residents at the expense of non-residents. To prevent that type of differential treatment between state residents and non-residents, the Framers adopted both the Commerce Clause and the Privileges and Immunities Clause. As the Court has recognized, the clauses have a “mutually reinforcing relationship” that ensure citizens of their right to access the markets of other states on equal terms.

In legal terms, the negative or “dormant” Commerce Clause means that, just as Congress has the power to regulate (“make regular”) interstate commerce, states can’t interfere with that commerce. Now, Justice Neil Gorsuch (here joined by Justice Clarence Thomas) has other views, being skeptical of this unwritten or implied constitutional doctrine – and actually that’s the only constitutional jurisprudence on which I’ve ever found myself in disagreement with him. (Here Gorsuch adds a special solicitude for alcohol, given state practice after ratification of the 21st Amendment.)

In any case, the justices can now have a gulp of wine ahead of tomorrow’s climactic end to an otherwise low-key term. I, meanwhile, am off to Total Wine, which coincidentally just sent me a marketing email.

The case is Tennessee Wine & Spirit Retailers v. Thomas. See here for more background and to read Cato’s brief.

As American Lawyers Battle Over Speech Codes, Ontario Lawyers May Lead the Way

As I noted last year, the American Bar Association in 2016 adopted as a recommendation its Model Rule 8.4 (g),

which makes it “professional misconduct” for an attorney to engage in “conduct,” including verbal “conduct,” that “the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law.” …

UCLA law professor Eugene Volokh has argued that the ABA rule’s scope “is broad and vague enough to potentially apply to a wide range of political speech, and thus violate the First Amendment.”

The rule would invite charges of professional misconduct against lawyers who express or circulate opinions, jokes, or graphics that they should have known would make a listener uncomfortable based on one or another protected class membership. It would apply in an extremely wide range of contexts “related to the practice of law”, as listed in these April comments:

Activities that seem to fall within the extremely broad scope of proposed Rule of Professional Conduct 8.4(g) include:

* presenting CLE courses;
* participating in panel discussions that touch on controversial political, religious, and social viewpoints;
* teaching law school classes as faculty, adjunct faculty, or guest lecturers;
* writing law review articles, op-eds, blogposts, or tweets;
* giving media interviews;
* serving on the board of one’s religious congregation, K-12 school, or college;
* providing pro bono legal advice to nonprofits;
* serving at legal aid clinics;
* lobbying on various legal issues;
* testifying before a legislative body;
* writing comment letters to government agencies;
* sitting on the board of a fraternity or sorority;
* volunteering for political parties; and
* advocating through social justice organizations.

While some state codes of lawyer conduct already ban bias and harassment, these have generally been drafted much more narrowly. In Maine, for example, up to now the missteps have to have been committed “knowingly,” in the course of representing a client, and in a manner “prejudicial to the administration of justice” — all three important safeguards against overbreadth.

Model Rule 8.4 (g) has faced rough sledding around the states since it was proposed. According to these comments in October, “seven states have rejected the rule: Arizona, Illinois, Minnesota, Montana, Nevada, South Carolina, and Tennessee have rejected the proposal. The Attorneys General of four states have concluded that adopting the rule would violate the First Amendment: Louisiana, South Carolina, Tennessee, and Texas. Only Vermont has adopted the model rule in its entirety.”

As Vermont goes, so goes Maine: the Pine Tree State’s highest court has now adopted a version of the rule, although narrowed in several respects. In particular, the Maine version defines “the practice of law” in a less broad (though still quite broad) way that covers fewer purely social activities; it removes socioeconomic status and marital status from the list of protected classes; and it tries at least to define what sorts of speech it will deem to be bias or harassment. Its definition is still quite unclear in its contours, however, and far broader than the standard approved by the U.S. Supreme Court as to harassment law and speech liability in workplace and university settings.

Let’s hope other states don’t follow Maine’s example: even as narrowed, the rules curtail important rights.

In the mean time, however, there is heartening news from Ontario, Canada, where (as I reported last year) the Law Society had gone all in on rules that go much further than the ABA’s, requiring all lawyers on eventual pain of discipline to draft and submit sign a personal Statement of Principles (SOP) avowing a dedication to principles of diversity, equality, and inclusion. The Society rejected a proposal “to create an exemption to the new mandatory Statement of Principles for persons who believe the requirement violates their freedom of conscience.”

But its membership revolted. Attorney Lisa Bildy and other SOP objectors led a campaign that, in a seeming miracle, elected 22 of its supporters to the 40 lawyer seats among the benchers (governors) at the Law Society. While the newly elected are not a majority because of the other seats on the body reserved for lay benchers and paralegals, the message was unmistakable (more on the campaign from Bruce PardyMurray KlippensteinTeng Rong, and Dylan McGuinty). Now, in the face of a determined campaign of abuse directed at the incoming benchers (sidelight), the Law Society of Ontario’s governing Convocation will meet June 27 to begin considering whether to repeal, render optional, otherwise change, or retain the Statement of Principles requirements.

The June 27 Law Society meeting, and what follows, deserve a close watch by all of us concerned about the rise of speech codes and forced expression in the professions.