Why Obstruction of Congressional Investigations Could Be Grounds for Impeachment

This blog is one in a series of blogs in a symposium examining different legal aspects of the impeachment inquiry of President Trump. View the entire Impeachment Blog Symposium.

Overseeing the executive branch is one of Congress's most important responsibilities, with impeachment being the most solemn and severe form. The power of Congress to investigate is fundamental to our system of checks and balances. When a president broadly obstructs Congress’s oversight function, especially during an impeachment investigation, it undermines that system and may violate the president’s constitutional obligation to “take Care that the Laws be faithfully executed.” Accordingly, in grave cases, that obstruction can qualify as an independent basis for impeachment.

In our daily politics, congressional oversight can often look like squabbling between political rivals in Congress and the White House. Dueling letters and rhetorical performances at hearings look a lot like all our other political fights.

But congressional oversight is rooted in the Constitution and our system of co-equal branches of government, and it is often how the separation of powers is manifested. The Supreme Court has held that Congress’s power to investigate is “essential and appropriate” and that it must be backed by “means of compulsion ... to obtain what is needed.” The power is “penetrating and far-reaching” and is at its zenith when used to “inquire into and publicize corruption [and] maladministration” in government. When a president improperly obstructs valid congressional oversight, Congress has several means of recourse, from holding officials in contempt and seeking judicial intervention, to using the power of the purse to compel cooperation, to — at least historically — detaining or fining officials under its “inherent contempt” powers.

Impeachment is perhaps Congress’s most potent way to hold government officials accountable. And in the past, Congress has cited obstruction of congressional oversight as a basis for impeaching a president. The second article of impeachment against President Richard Nixon included the allegation that he failed to act “when he knew or had reason to know that his close subordinates endeavoured to impede and frustrate lawful inquiries by duly constituted ... legislative entities.” The third article of impeachment cited Nixon for having failed “without lawful cause or excuse to produce papers and things as directed by duly authorized subpoenas issued by the Committee on the Judiciary of the House of Representatives ... and willfully disobeyed such subpoenas.” In other words, the House Judiciary Committee approved articles of impeachment against Nixon for obstructing congressional oversight.

The fourth article of impeachment against President Bill Clinton — passed by the Judiciary Committee but not adopted by the full House — claimed Clinton “impaired the due and proper administration of justice and the conduct of lawful inquiries, and contravened the authority of the legislative branch and the truth seeking purpose of a coordinate investigative proceeding.” It cited Clinton for failing to respond to certain written requests and for making false and misleading sworn statements in response to congressional requests.

It is clear, however, from historical practice, constitutional design, and politics that impeachment is not appropriate every time Congress’s efforts to investigate a president are stymied. Not all noncompliance with oversight is impeachable or even wrong. The separation of powers contemplates a struggle between the executive and legislative branches. Legitimate volleys in that struggle should not be impeachable — the difference between negotiation and obstruction in the context of congressional oversight is often in the eye of the beholder. Many members of Congress have described accommodation efforts as obstruction.

Whether a president’s refusal to cooperate with congressional investigations rises to the level of an impeachable offense should turn, at least, on two factors. First, drawing from the law of obstruction of justice, Congress should find the president has acted with corrupt intent vis-à-vis oversight requests. Not all acts that could “obstruct” a criminal case are appropriately charged as obstruction of justice, such as filing a good faith motion to quash a subpoena or validly asserting one’s Fifth Amendment rights. In contrast, tampering with witnesses or destroying evidence can warrant a criminal charge.

Likewise, to rise to an impeachable offense, obstruction of congressional oversight should include some level of corrupt mens rea. Professors Daniel Hemel and Eric Posner argue for a meaningful mens rea standard when analyzing when a president, who runs the Department of Justice, can be said to have engaged in obstruction of justice. They argue a president may commit obstruction of justice if he or she “significantly interferes with an investigation, prosecution, or other law enforcement action to advance narrowly personal, pecuniary, or partisan interests.” They contrast that with a decision to stop a prosecution that might expose a covert operative.

A similar standard is appropriate in the congressional oversight context. If the president blocks inquiries to protect his personal, pecuniary, or partisan interests — as opposed to the public interest — he or she may be said to be “obstructing.” Likewise if the president refuses to turn over information based on invalid legal theories or in defiance of a court order. For example, the articles of impeachment against Nixon asserted he thwarted congressional requests for information “without lawful cause or excuse,” to protect himself based on improper assertions of privilege.

Trump’s total war on oversight presents a challenging question for impeachment. On matters grave and small, he has directed his administration to resist all scrutiny, famously saying he was “fighting all the subpoenas” and pledging to adopt a “warlike posture” to investigations. While many of the issues at stake do not implicate the president’s personal interests — many do, of course — the aggregate level of defiance is unprecedented and highly problematic. Impeachment for such conduct would be equally unprecedented but not necessarily improper. Congress would need to tie the aggregate defiance to a corrupt intent. For example, evidence that Trump ordered the blockade of all oversight to lend cover to one area in which he needed to protect himself would show the blockade is self-interested. And conceivably Congress could make the case that the total scale of the blockade reflects a corrupt approach to governance and a violation of Trump’s presidential obligations. But the case would need to be very compelling or it would risk turning routine oversight negotiations into scandals, which historically they are not.

The second factor in determining whether a president’s actions rise to the level of impeachment is the severity of the obstruction. Routine separation-of-powers struggles over oversight should not be sufficient. Impeachment is most appropriate where the obstruction (a) substantially thwarts (b) a legitimate congressional inquiry (c) into a matter of significant constitutional or legal importance.

When the president crosses this line is always going to be a matter of debate. With Nixon and Clinton, the alleged obstruction came in the context of impeachment proceedings, meaning that the House had already determined that the subject matter of its investigations met the threshold for impeachment. If, as with the Trump administration, obstruction of an impeachment inquiry is part of a consistent pattern of obstruction of all oversight, then that broader narrative could serve as atmospheric evidence in support of impeachment.

Finally, as with the crime of obstruction of justice, obstruction of oversight could conceivably offer a stand-alone basis for impeachment. In the criminal context, many obstruction of justice charges are brought without also charging the underlying crime. It would be a terrible incentive if a president could immunize himself from impeachment by thwarting all requests for information from Congress.

Nevertheless, impeachment for obstruction of oversight is probably best paired with a substantive basis for impeachment. Demonstrating the severity of the underlying conduct that is being investigated would help show why the obstruction of congressional oversight is also severe. In addition, before pursuing impeachment for obstruction of oversight as a stand-alone charge, Congress should also consider whether its other tools, such as the power of the purse or enforcement of a subpoena in court, provide an alternative mechanism to obtain compliance with its demands.

Our constitutional system depends on checks and balances. Thwarting Congress’s ability to check the president undermines that system and makes our government less accountable. It is no surprise that Congress has previously found obstruction of oversight to be an impeachable offense. The current administration’s wholesale blockade of oversight presents an unprecedented fact pattern for potential impeachment. But as of this writing, it appears Congress will not be faced with the question of whether to pursue obstruction as a stand-alone basis for impeachment. Instead, the administration’s posture toward accountability will be considered alongside alleged cases of brazen misconduct.

Congress Has Used Campaign Finance for Impeachment Before: Here’s How To Do It Now

This blog is one in a series of blogs in a symposium examining different legal aspects of the impeachment inquiry of President Trump. View the entire Impeachment Blog Symposium.

The Trump 2020 campaign started the day he was inaugurated, which placed him under federal campaign finance regulations for his entire presidency. He was also subject to federal campaign finance laws from the moment he started his campaign in 2015 through his inauguration. From both the 2016 Trump campaign and the 2020 Trump campaign, Congress has several instances of evidence of violations of federal campaign finance laws by Donald Trump. These campaign finance abuses could well lead to impeachment.

The President Nixon Precedent

There is historical precedent for Congress considering campaign finance violations as grounds for impeachment. For example, the Articles of Impeachment against President Richard Nixon included:

He has failed to take care that the laws were faithfully executed by failing to act when he knew or had reason to know that his close subordinates endeavoured to impede and frustrate lawful inquiries by duly constituted executive, judicial and legislative entities concerning the unlawful entry into the headquarters of the Democratic National Committee, and the cover-up thereof, and concerning other unlawful activities including … the campaign financing practices of the Committee to Re-elect the President.

This Nixon precedent takes on added urgency now that the House of Representatives has opened a formal impeachment inquiry.

The 2016 Trump Campaign

As I explain in my book Political Brands, President Trump has been named by federal prosecutors as Individual 1 in the charging documents relating to Michael Cohen, Trump’s former lawyer. Cohen pleaded guilty in 2018 to violating federal campaign finance laws in two distinct ways to help secure the silence of two women who alleged that Trump had had affairs with them right before the 2016 election.

Cohen’s first campaign finance crime was paying adult film actress Stormy Daniels (nee Stephanie Clifford) $130,000 for her silence on the eve of the 2016 election. This payment was considered an in-kind donation to the 2016 Trump campaign. It violated the law because it was too large. Cohen could only lawfully give $5400 to support Trump’s candidacy at the time.

The second campaign finance violation that Cohen pleaded guilty to was with respect to facilitating a payment by the National Enquirer to a Playboy model named Karen McDougal of $150,000 to catch and kill her story about her alleged affair with Trump. This violated a federal law called the Tillman Act, which bars corporations from spending in federal elections since its enactment in 1907. The parent company of the National Enquirer, American Media Inc., entered into a non-prosecution agreement with the DOJ to avoid liability for its illegal role in this payment.

According to Mr. Cohen’s statements to his sentencing judge in his criminal case, he executed both money in politics crimes at the direction of then-candidate Donald Trump. If true, this would make Donald Trump an unindicted co-conspirator in Cohen’s campaign finance crimes. Presumably, the only thing preventing the SDNY prosecutors from pursuing Individual 1, was a DOJ memo which states that a sitting president cannot be indicted. Meanwhile as President Trump remains free, Mr. Cohen is presently in federal prison for three years.

The 2020 Trump Campaign

According to statements by President Trump in television appearances and his lawyer Rudy Giuliani in other television appearances including one on CNN with Chris Cuomo, as well as the White House released notes of a call between Mr. Trump and the President of the Ukraine Volodymyr Zelensky, Mr. Trump asked the Ukrainian president for help digging up opposition research on Hunter Biden, the son of Joe Biden, who is running for the Democratic nomination for president. If accurate, this would be an additional instance of violating federal campaign finance law.

Ever since 1966 foreign nationals have been barred from giving contributions of money or things of value to federal candidates including candidates for the presidency. In 2002, this campaign finance law was revised by the McCain-Feingold Bipartisan Campaign Reform Act to make the ban on foreign influence even broader. The 2002 law expanded the foreign ban to political expenditures as well as direct contributions to candidates.

The 2002 law (52 U.S.C. §30121 formerly 2 U.S.C. § 441e) also made it clear that violations involving foreign governments would merit even harsher consequences compared to mere foreign citizens who violated the ban. In the first post-McCain Feingold sentencing guidelines, in 2003, penalties listed were enhanced if the campaign finance offense involved a foreign national (two levels) or a foreign government (four levels). Thus, there is more prison time for a person working with a foreign government than one who is simply a run-of-the-mill foreign national.

The federal ban doesn’t just bar federal candidates from receiving money and things of value from foreign nationals, the law also bans the solicitation of foreign goods or money in U.S. elections.

The notes released from the White House of the Trump/Zelensky phone call indicate that President Trump, a candidate for federal office, was soliciting information about the Biden family from a foreign government—the Ukrainians. This is another violation of federal campaign finance law and could provide additional grounds for impeachment on top of the actions allegedly taken by Mr. Trump during the 2016 campaign to illegally benefit his campaign.

American campaign finance laws are meant to keep corruption at bay and to bolster voters’ faith in the integrity of democracy. The evidence in the public domain seems to indicate that Trump cheated in the 2016 election and, troublingly, he appears to be cheating in the 2020 reelection campaign while sitting in the Oval Office. The Congress is well within historical precedents in holding the president accountable through the Constitutional process of impeachment for these alleged violations of campaign finance law.

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Ciara Torres-Spelliscy is a Professor of Law at Stetson University College of Law, a Fellow at the Brennan Center for Justice at NYU School of Law and the author of the book, Political Brands (2019).

AB5: Regulating the Gig Economy is Good for Workers and Democracy

Poverty is not a suspect classification under our Constitution, but it is an affront to life and dignity and to democracy more broadly. With the evisceration of the U.S. welfare state and the judiciary’s deference to political outcomes in the area of “economics and social welfare,” employment is the primary legal and political means to address economic inequality. In turn, employment is—for better or for worse—key to our democracy. It provides access to the tools for basic sustenance in modern America: the minimum wage, health insurance, safety net protections, and even the right to organize and collectively bargain. Our capacity to participate in life and partake in politics, depends, in no small part, on our employee status. In the words of political theorist Judith Shklar, “We are citizens if we ‘earn.’” To this observation, I might add that we are citizens if we earn enough.

AB5—a bill which was just signed into law in California—is the first state law in the country to push back against an alarming trend of the last half decade: the use of app-based technology to proliferate work outside the regulatory framework of “employment.” The potential for labor platforms relying on non-employee labor to exacerbate poverty looms large in debates about the future of work and of workers. While the number of app-based workers remains comparatively small, the potential for this sector to grow and for industries to reproduce this model across the service economy looms large.

AB5 is the first significant step in pulling these workers back under the “employee” umbrella. It codifies the presumption of employee status under state law and puts forth an exacting, conjunctive test that hiring entities must meet if they wish to engage workers as non-employees. Because labor platforms have posed risks to employment regimes and the security of workers the world over, the bill has been internationally lauded and states across the U.S. seek to replicate it.

How did California manage to pass this law, and what implications might AB5 hold for the relationship between work, poverty, and democracy more broadly?

I. Sharing or Taking? The Emergence of Precarious Platform Labor

To understand the significance of AB5 in the broader political and economic context, we must understand how the precarious labor trends it addresses initially proliferated.

Labor platform companies Uber and Lyft first appeared on the streets of San Francisco in the shadows of the Great Recession. They operated under the guise of sharing and trust-building and launched to a captive audience. In a period of heightened unemployment and distrust in government (on both the left and the right), the companies capitalized on the public appetite for easily accessible jobs and economic re-making to introduce “disruptive” business models built on unregulated, independent contractor labor. Uber and Lyft (which paved the ideological way for numerous gig companies that followed in their suit) provided traditional taxi services outside of traditional regulatory frameworks at rock-bottom, subsidized prices. They argued that their technology platforms produced not work—but community. And their public relations message was that they did not employ people; they empowered them.

Belying this seductive narrative were anticompetitive business practices and insecure work. The labor platforms set fares, controlled worker behavior through algorithms, and unilaterally (and sometimes inexplicably) terminated workers from the app. The companies, meanwhile, claimed to facilitate micro-entrepreneurship. In reality, individual workers bore all the traditional risks of business—providing their own car, phone, hybrid car insurance, and gas—but had very little control over the business itself.

II. From Failures to Regulate to Dynamite Dynamex

Despite growing complaints from workers and organized driver protests, regulators in states across the country failed to enforce existing employment laws against labor platform companies, and in some states legalized their independent contractor business models.

This political acquiescence began at ground zero in San Francisco. When Lyft hit the streets of San Francisco in 2012, the California Public Utilities Commission (CPUC) issued a cease and desist order, arguing that the company was operating illegally. With this order in effect, then-Mayor Ed Lee took a different approach, commending the emergence of Lyft and Uber, launching a Sharing Economy Working Group, and pronouncing June 13, 2013 “Lyft Day.”

The CPUC eventually changed course and began a rule-making process to legalize the companies, noting that the agency sought to “foster innovation.” By regulating this industry state-wide, the agency effectively pre-empted California cities from enacting local regulations.

Hoping that the courts would address the misclassification concern, the CPUC wrote laissez faire rules that were silent on labor issues. Beginning late in 2013, a number of class action lawsuits were indeed filed alleging the misclassification of workers by Uber and Lyft. But the class actions’ effectiveness as enforcement mechanisms were stymied by arbitration clauses and the Supreme Court’s decision in Epic Systems v. Lewis.

One month before Epic Systems, however, the California Supreme Court decided Dynamex v. Superior Court of Los Angeles. Dynamex changed California law and the conversation around employee rights in the gig economy. In Dynamex, which addressed the classification of drivers for an offline delivery company, the Court wrote that the purpose of California wage laws was to “raise living standards” for California workers and their families. The decision noted how easy it was for companies to manipulate their business models to avoid responsibility to workers under the existing legal test for employment. To address this, the Court revised the state’s analysis of employee status under wage orders.

While Epic Systems hinders the private enforcement of Dynamex, the implications of the Dynamex decision were immediately apparent to the labor platform companies and to drivers. Under the ABC test (under which workers are only independent contractors if they perform work outside the usual course of the hiring entity’s business), analysts agree, there is little wiggle room; labor platform workers are very likely employees. Gig companies scrambled to leverage their significant structural and instrumental power to create a legal carveout for themselves through legislation.

Rather than wait for the companies to regulate themselves out of employment, California Assemblywoman Lorena Gonzalez introduced AB5 in the 2019 legislative session. The bill extended the legal precedent in Dynamex beyond wage orders to all California employment laws—including those in the Labor Code and the Unemployment Insurance Code. It also gave city attorneys the power to enforce the law through injunction.

Given California’s tech-friendly political environment, however, few thought the bill could pass without an exemption for labor platform companies.

III. Drivers take the Lead: Unprecedented Organizing in the Gig Economy

During the earlier failure to regulate by courts and legislatures, I interviewed a number of labor platform drivers who lived in their cars or who couch-surfed. They didn’t make enough to afford rent. Some of them had—at Uber’s urging—purchased vehicles to work and were trapped in predatory auto loans. Other drivers I met—migrant workers—came up from Southern California and the Central Valley to drive where fares were higher. They were all tired of laboring under uncertain conditions. While not everyone wanted the control that they feared came with employee status, everyone wanted basic benefits like a wage floor and workers’ compensation.

Tired of relying on state actors to fight on their behalf, a number of frustrated drivers started to organize. Drivers in Los Angeles, for example, founded the Ride-share Drivers United (RDU) in 2018. Doing what some trade unionists thought was impossible in the atomized and dispersed gig economy, RDU built relationships through one-on-one conversations and weekly meetings. They orchestrated actions to pressure state actors and even planned an unprecedented global strike against Uber and Lyft. In a remarkably short period of time and without funding, the RDU by May 2019 had grown their membership to over 5,000 workers and inspired affiliated grassroots groups in San Diego and San Francisco.

RDU and other drivers groups—including those sponsored by unions and worker centers like the Mobile Workers Alliance and Gig Workers Rising—readily endorsed AB5 and fought passionately to get it passed. Newly minted Governor Newsom encouraged organized labor to meet with the gig companies to “hammer out a compromise,” but the workers felt strongly that Uber and Lyft’s proposed compromise legislation was unsatisfactory. RDU members told me, for example, that they were appalled and alarmed that the companies’ proposal required them to exchange basic employee rights for a company-funded “worker association” and portable benefits.

IV. Using Employment to Organize for a Democratic Workplace

Two weeks ago, against powerful odds and powerful actors, the California legislature passed AB5 without a carveout for the labor platform companies. Last week, Governor Newsom signed the bill, indicating that he wanted to see a pathway to unionization in the gig economy. (Due to a recent 9^th circuit decision stemming from a challenged Seattle collective bargaining law, a state law facilitating collective bargaining may be possible.)

While workers in California await enforcement of AB5 against the company’s threatened intransigence (Uber claims both that it is exempt from the law and that they will fight the law with a referendum), they feel emboldened by this significant victory. Many believe their organizing potential will grow exponentially under an employment regime; workers who earn a living wage and benefits have time and energy to build power together.

But AB5 itself does not give workers the legal authority to engage in protected concerted activity, and it certainly doesn’t force the companies to collectively bargain with them. So, what’s next? What might the road to a union and workplace democracy look like for California’s labor platform workers?

One promising path may be for drivers’ groups like RDU to continue to build collective power and to eventually file for union recognition under federal labor law. While Trump’s NLRB General Counsel has issued a non-binding advisory opinion calling Uber drivers independent contractors, carved out of the NLRA, federal analysis on the issue might change with business model changes brought on by AB5 and would certainly change under a different administration.

Yet another path may be for drivers’ groups to fight for a radically bold state labor law for all excluded workers. Such a law would not erode—but grow—the hard-won rights under AB5 and allow anyone excluded from federal law to organize to improve their conditions. The NLRA—since Taft-Hartley—has been decried as being in need of reform, especially for the “new economy.” As the most progressive state with the highest poverty rate, California could build on the momentum of AB5 and create a state pathway to union recognition that resolves the many hurdles posed by federal law. A new California collective bargaining law, for example, could make it easier for workers to secure union recognition and better protect their rights to picket, strike, and engage in concerted activity.

In an ironic twist, the so-called “gig economy” may be a political catalyst for both worker-led organizing and the revitalization of labor law. Under the employment regime authorized by AB5, California’s precarious platform workers will have the power to effectively fight poverty while building a just and vibrant democracy—in the workplace and beyond.

A Tale of Two Election Law Standards

In April 2019, Tennessee enacted a law that would make it harder for individuals and organizations to register people to vote. On September 12, 2019, a federal district court granted a preliminary injunction against the law, finding that the law would unconstitutionally infringe on the rights of those who conduct registration drives.

That’s good news; the Sixth Circuit Court of Appeals should affirm the decision if the state appeals. Imposing arduous rules—such as requirements that groups register with the state before conducting voter registration drives, take a government-provided training, and seek consent before retaining a voters’ information to use in get-out-the-vote efforts—places unnecessary barriers on the constitutional right to vote. Moreover, the law would criminalize groups who turn in too many incomplete voter registration forms while imposing a strict timing requirement on when forms must be turned in. None of these rules are necessary to fix any problems with Tennessee’s elections.

But for legal nerds and those who care about the scope of election law litigation, the path the court took to find the law (likely) unconstitutional was particularly interesting.

Any constitutional challenge to a particular governmental practice includes a threshold question: what level of scrutiny applies? The level of scrutiny, as most lawyers know, essentially dictates the lens through which the court will analyze the governmental action: strict scrutiny means that the court will not defer to the government for its purpose or method at all, while a lower level of scrutiny will give the government greater leeway.

The Supreme Court has been somewhat fickle on the level of scrutiny to apply when it comes to the fundamental right to vote. Although in the 1960s the Court often employed strict scrutiny, the Court subsequently adopted a balancing test, frequently referred to as “Anderson-Burdick” balancing after the two main cases that set out the standard, Anderson v. Celebrezze and Burdick v. Takushi. If the Court determines that an election law imposes a “severe burden,” then strict scrutiny applies and the government must carefully justify its practice without receiving any deference. But if the burden the law imposes is not severe, then a lower-level balancing test applies in which the Court weighs the burdens the law imposes against the state’s interest in its electoral practice. Of course, the threshold question—does a law impose a severe burden—is vitally important, but the Court has failed to define that term with any clarity.

Yet there is another strand of constitutional law often at play in these cases, and the Tennessee court latched on to that standard to consider these registration rules. Many election laws also implicate core First Amendment rights of free speech and free association. A regulation on the way in which an organization conducts its registration drives impacts the right to vote but it also may infringe on that group’s ability to speak and associate freely in the political world.

The court explained, citing a case from Florida, that “encouraging others to register to vote is pure speech, and because that speech is political in nature, it is a core First Amendment activity.” (cleaned up). The court also noted that “organizing between individuals in support of registration efforts involves political association that is, itself, protected under the First Amendment.” Thus, the court employed “exacting” scrutiny, which is essentially the same as strict scrutiny, in which it carefully considered the state’s need for the new law and whether the law would actually achieve any valid state interests.

To justify using a First Amendment exacting scrutiny standard, and not Anderson-Burdick balancing, the court noted that registering new voters is part and parcel of political change. “[I]n the American system of governance, every decision to grant, preserve, or take away a right can be traced, in at least some partial way, back to an election. . . . [A] change in the composition of the electorate can lead to the change of any law.”

The court found Tennessee’s justification for the new law sorely lacking. For example, the court explained that although there is a strong governmental interest in ensuring that groups conduct their voter registration activities properly, the state had “offered no evidence” to support the requirements that groups register ahead of time or take a government training. Moreover, these burdens would make it much harder for groups like the League of Women Voters to conduct voter registration drives given that they rely on volunteers. Instead, the rules—including the criminal penalties for filing too many incomplete registration forms—would create a chilling effect on voter registration.

The court also noted that the law would still fail Anderson-Burdick balancing if it employed that standard. But it cast that test aside in favor of a more robust First Amendment inquiry under exacting scrutiny. The court said that Anderson-Burdick balancing is better suited for issues involving the election mechanics itself that do not implicate core First Amendment rights.

Yet that formulation itself begs the question: are there any electoral activities that do not also implicate the First Amendment rights of speech and association? Perhaps, then, this case could stand for a broader proposition: Anderson-Burdick balancing is itself flawed, and the courts must recognize the centrality of the right to vote to our democratic system and impose stringent rules on governments that try to infringe on that right. This decision from Tennessee, striking down onerous rules on voter registration, does exactly that.

Today, on National Voter Registration Day, we must double down on our commitment to ensure that the courts robustly protect the fundamental right to vote, as this court just did. But we also must register to vote and ensure our family and friends are registered, too. Here’s a link.

Joshua A. Douglas is a law professor at the University of Kentucky College of Law. He is the author of Vote for US: How to Take Back Our Elections and Change the Future of Voting. Find him at www.joshuaadouglas.com and follow him on Twitter @JoshuaADouglas.

Revoking California’s Clean Air Act Waiver Is Bad Policy and Legally Indefensible

It’s not news that the Trump administration has been planning, via its so-called SAFE Rule, to freeze Obama-era fuel economy standards, roll back tailpipe greenhouse gas (GHG) emissions standards, and revoke California’s Clean Air Act authority to set its own emissions standards. But in recent weeks, as several major automakers have signed on to a deal with California to recognize the state’s authority to regulate and to continue reducing tailpipe GHG emissions, the Trump administration has ramped up its attacks. The assault is now culminating in an announcement that the administration will revoke California’s waiver, even before it finalizes its rollback of the fuel economy and tailpipe emissions standards.

The attack on the standards, and on California’s authority, is all the more confounding because even the auto industry has called for the federal government to come to the table with California. In a June hearing before the House of Representatives Energy & Commerce Committee, auto industry representatives testified that the rollback would undercut already-dedicated industry investment in clean technologies and cede American leadership in that space. Even Republican legislators echoed the industry’s calls for the administration to rethink its plans, suggesting that the ensuing regulatory uncertainty would be bad for all.

Instead, the administration is barreling forward into unprecedented territory—a waiver has never been revoked in the 50-year history of the Clean Air Act—where it will find itself on shaky footing from both a policy and a legal perspective.

Why a waiver revocation is bad policy

There are a number of reasons why a waiver revocation is an unwise move from a policy perspective: (1) this revocation-only action throws the auto industry into regulatory uncertainty that creates economic risks for businesses; (2) revoking California’s waiver has serious consequences for air quality in California and other states, not to mention setting back the fight against climate change; and (3) a waiver revocation achieves none of the stated goals of the administration’s rollback plan.

Revocation just begins the litigation battle between California (and, likely, other groups and states) and the administration. That litigation could take months, or even years, to resolve—assuming there’s not a change of administration in the middle that moots the entire dispute. Further, the bifurcation of the waiver revocation from the rest of the rollback rule raises the possibility of an even longer timeframe to reach full resolution, as well as potentially inconsistent determinations in two separate litigations.

While litigation is ongoing, automakers will not know which set of standards will ultimately apply to them: California’s, the Obama-era federal standards, or the Trump rollback. Ironically, even though the administration insists that it will be creating “one national standard” by revoking California’s waiver, it will actually be doing the opposite. Currently, California’s standards are harmonized with the federal government’s standards, so there actually is only one national standard that automakers can meet. If the waiver is revoked, that harmonization will disappear, and automakers could ultimately be left to comply with different California and federal standards depending on the outcome of the litigation.

In the meantime, the market continues to progress: consumers are interested in more fuel-efficient and greener cars, and other countries are requiring improved fuel economy. In other words, automakers are being pushed by economic forces to make more efficient (and lower-emitting) cars, regardless of what the federal government does. In this environment, many automakers see the wisdom of trying to create some clarity for themselves even as the administration’s actions muddy the waters. Hence the framework agreement between California and a handful of major automakers: better to agree to a set of standards regardless of litigation outcomes than to find yourself holding the compliance bag months or years down the road. Even automakers who haven’t signed on to the agreement continue to call for talks between California and the administration for the same reason. The ensuing battle over California’s waiver authority is simply bad for business.

It is also bad for public health. A waiver revocation, if upheld, would upset not only California’s authority to enforce its tailpipe GHG standards, but would also interfere with enforcement of its zero-emission vehicle (ZEV) mandate. The ZEV program was originally adopted not to address climate change, but to combat smog pollution, a purpose it still serves. California suffers from some of the worst smog pollution in the nation; for example, the South Coast Air Basin exceeded federal ozone standards for over one-third of the year in 2017. California isn’t the only state that uses these regulations to reduce air pollution, either. Even the administration’s own analysis recognizes that other states rely on California’s rules to meet federal ambient air quality standards—but if California loses its authority to enforce its standards, so will those states. That’s why the attorneys general of those states and the mayors of over fifty cities within them have stressed that “these standards are both necessary and feasible” and are “particularly appropriate given the serious public health impacts of air pollution in our cities and states…”

And, of course, a waiver revocation, if upheld, would set California and other states back in their fight against climate change. Transportation sector emissions account for nearly 40 percent of California’s GHG emissions. If California loses this regulatory tool, the challenge of meeting its aggressive GHG reduction goals by 2030 and 2045 will become even tougher. California stands to suffer disproportionate effects from climate change as a result of its unique geography and climate, including heat waves, worsening ozone pollution, harm to agricultural production, wildfires, and a rising sea level. And the administration’s action comes at a time when respected climate scientists have suggested that we need to redouble, not relax, our efforts to address climate change.

Finally, an action to revoke the waiver is antithetical to the administration’s own stated purposes for the SAFE Rule: arguments that the Obama-era standards created vehicle safety concerns for consumers and that the compliance timeframes were not technologically feasible. Those arguments themselves have always been weak; consumer purchasing pattern data shows that the safety gains the administration touted are specious, and automakers are well on track to meeting the Obama-era standards—in fact, some cars on the market today are already years ahead of the curve. But even if the administration’s arguments held up, finalizing a rule that leaves Obama-era standards in place while revoking California’s waiver does nothing to address either of those purported concerns.

Why a waiver revocation stands on shaky legal footing

The administration has argued that: (1) it has “inherent authority” under the Clean Air Act to revoke the waiver because it does not meet the standards of Clean Air Act section 209 and (2) California’s standards are preempted by the federal Energy Policy and Conservation Act (EPCA), which authorizes the federal government to set fuel economy standards. Neither argument is convincing.

In reality, the Clean Air Act does not contain any waiver revocation authority. Section 209 spells out the process for granting a waiver and explains that EPA must grant a waiver unless one of three unusual circumstances exists: (1) California’s finding that its standards are at least as stringent as the federal government’s was arbitrary and capricious, (2) California does not need the standards to meet compelling and extraordinary conditions; or (3) the standards and accompanying enforcement procedures are inconsistent with Clean Air Act section 202. But the act is clear that these are considerations that come into play before, not after, a waiver has been granted. There is no suggestion that Congress intended to create revocation authority, and no such authority has ever been recognized by a court, or otherwise. Even if the section 209 factors did apply in the context of a waiver revocation, the California standards satisfy all of section 209’s requirements: they are at least as stringent as the federal government’s standards, they are necessary to meet compelling and extraordinary conditions that California faces both with respect to air pollution like smog and climate change, and they are consistent with section 202 of the Clean Air Act.

Nor does EPCA preempt the standards. The administration’s argument, put simply, is that because reductions in tailpipe GHG emissions can be achieved by improving fuel economy, California’s emissions standards are preempted by EPCA’s regulation of fuel economy. But multiple federal courts have determined that EPCA’s regulation of fuel economy does not preclude regulation of vehicular GHG emissions. In Massachusetts v. EPA, the Supreme Court found EPCA did not displace EPA’s authority to regulate GHG emissions; based on that finding, federal courts in Vermont and California have concluded that EPCA does not preempt state GHG standards, upholding California’s tailpipe standards and Vermont’s adoption of them.

In sum, revoking the waiver throws regulated industry into costly uncertainty, could result in serious harm to public health, and does not support the administration’s own stated rationale for a standards rollback. It’s just not smart policy. It’s also unprecedented, unauthorized by the Clean Air Act, and unsupported by prior agency and court decisions.

A Progressive Vision of the Constitution

This was originally published on February 27, 2019.

Decisions in important Supreme Court cases have always been a function of the values of the justices on the bench. Conservatives realize this as much as liberals, which is why they fought so hard to keep Merrick Garland off the Court and confirm Neil Gorsuch and Brett Kavanaugh. The difference, though, is that conservatives pretend they are just following a neutral judicial methodology— “originalism.”

In their telling, conservatives are just following the Constitution. They are faithfully executing the will of our Founding Fathers whereas liberals are guilty of “interpreting” the Constitution to impose their idealistic vision on society. But liberals know that, while constitutional decisions are rooted in the document’s text, they are also a product of our nation’s history since its drafting and the needs of modern society. Conservatives know this obvious truth as well; they just cover it up with a “bumper sticker” theory of interpretation that makes for a great sound bite, but which is, in the end, meaningless.

The Constitution was intentionally written in broad, open-ended language that rarely provides sufficient guidance for many of the issues before the Supreme Court. The meaning of phrases like “cruel and unusual punishment” or “due process” or “equal protection” cannot be determined by the words of the text alone or the intent of its drafters, who wrote long ago for a vastly different world.

Moreover, the desire for value-neutral judging in constitutional cases is an impossible quest because the need to balance competing interests is inescapable and a justice’s own ideology and life experiences inevitably determine how he or she strikes that balance.

In determining whether state laws that prohibited same-sex marriage denied equal protection, all of the justices faced the question of whether forbidding marriage equality served a “legitimate” government purpose. In deciding whether affirmative action programs deny equal protection, the Court must assess whether diversity in the classroom is a “compelling” government interest. But what is “legitimate” or “compelling” is very much a reflection of the justices’ values.

It is simply wrong to think that Supreme Court justices—liberal or conservative—can decide constitutional cases without making value judgments. Such an assertion is a smokescreen to make Americans think conservatives are basing their decisions on the “true” meaning of the Constitution when actually their rulings are a product of their own conservative views.

In Shelby County v. Holder (2013), the Court declared unconstitutional a key provision of the Voting Rights Act of 1965 that required state governments with a history of discrimination to get prior approval from the Attorney General for any major change in their election systems. Chief Justice John Roberts, writing for the majority in a 5-4 decision, said that the provision, which had been the law for over a half-century, violated the requirement that Congress treat all states alike. But nothing in the Constitution says Congress should treat all the states alike.

The progressive vision, however, does more than simply show the intellectual bankruptcy of originalism; it shows that constitutional law is about applying the values of the Constitution to current problems.

These values are clearly stated in the first words in the document’s Preamble. It declares that the Constitution is written to create a democratic government, ensure an effective government, establish justice, and secure liberty. Added to these goals should be achieving equality, something omitted from the original Constitution which protected slavery and envisioned no civil rights for women or racial minorities.

The task for progressives is to give context to these values and show how the Constitution should be interpreted to achieve them. Today, the American Constitution Society and other progressive legal groups are exploring ways to apply the values inherent in the Constitution to modern problems the Founding Fathers could never have imagined let alone accounted for when they drafted the original document.

Only a progressive vision of constitutional law can address serious flaws in American democracy, such as the racial discrimination that undermines equality of voting in many states. Such a vision is needed to truly champion criminal justice reform, including finally ending the death penalty, and to fiercely defend women’s reproductive rights. In the longer term, such a vision will be needed to make the case for interpreting the Constitution as giving all Americans the right to food, shelter, medical care, and education. But dealing with these complex issues requires that the law responds to government actions that can have a discriminatory impact, actions that may nonetheless have roots in clearly outdated Constitutional language.

All of this may seem elusive today with five conservative justices. But one day, there will be a more progressive Court, and liberals should proudly articulate a vision about the meaning and values behind the words of the Constitution for when that day comes.

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Dean and Jesse H. Choper Distinguished Professor of Law, University of California, Berkeley School of Law. Author of We the People: A Progressive Reading of the Constitution for the 21st Century (2018).