If Trump Takes Unilateral Action on Wall, Constitutional System Will Be Tested

It must be emphasized that this is not a done deal, but it appears likely that the president will sign into law legislation funding the federal government until the end of September 2019.  When and if this legislation is enacted, federal workers who recently endured a 35-day partial government shutdown will undoubtedly heave a sigh of relief.  But the issue that sparked the shutdown in the first place—President Trump’s demand for billions of dollars to support some construction of a new border wall between the United States and Mexico—will not go away.  In fact, it remains possible that Trump will move ahead with his long-telegraphed threat to declare a national emergency in an effort to gain access to funds needed for wall construction.

This remains speculative, and it is of course possible that Trump will not declare an emergency.  There are reports that Senate majority leader Mitch McConnell has warned the president not to do so, in part by telling Trump that congressional Republicans might take action to reject a presidential declaration of emergency.  However, the president continues to suggest he might take unilateral action, claiming that “[w]e have options that most people don’t understand.”  Those options could include declaring an emergency pursuant to the National Emergencies Act of 1976 or issuing an executive order to reprogram money already appropriated by Congress.

If the president does take unilateral action in an effort to free up money to build a new wall on the southern border, the constitutional system itself will be tested.  The Constitution was designed to strike a balance between power and limits—to create a federal government strong enough to carry out the responsibilities assigned to it, while also setting limits to prevent that government, or any part of it, from gaining too much power.  As James Madison wrote in Federalist 47, “[t]he accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many…may justly be pronounced the very definition of tyranny.”  Madison expected that members of each branch of government would jealously defend their branch against encroachment by another branch.  For instance, members of Congress would act to rein in a president bent on consolidating power in his or her hands.  This is the concept of separation of powers that undergirds constitutional democracy in the United States.  It is built on overlapping authority—checks and balances--that, in theory, allows each branch of government to fulfill its duties without gaining a monopoly on powers

The problem, of course, is that the system only works if members of each branch take action when the balance of power is threatened.  One way the system can fail is if members of Congress value partisan ties to a president of their own party above institutional power.

In the past, the system has worked when members of Congress and judges have put aside partisan or personal feelings to set limits on presidential power.  For example, when President Franklin D. Roosevelt proposed his court-packing plan, it was derailed when congressional Democrats saw this as a dangerous attempt to install pliant justices on the Supreme Court.  When President Richard Nixon brazenly sought to undermine the rule of law, congressional Republicans joined Democrats in making clear that he faced a choice: resign from office or be removed through the impeachment process.

But, when presidents seek to set aside limits on their power, there haven’t always been happy endings.  Five years after his court-packing plan went by the boards, Roosevelt issued Executive Order 9066, which paved the way for the internment of more than 100,000 Japanese Americans living on the west coast of the United States.  Legislators and judges largely fell in line behind the president, providing legal cover for his actions, including in two Supreme Court decisions.

The shameful history of the Japanese American internment is instructive now for at least two reasons.  First, it provides evidence that checks and balances only function when each branch of government takes action to set limits on power.  Second, it reminds us that presidents can create contrived emergencies to justify assaults on the constitutional order.  The executive branch sought to justify the mass internment of Japanese Americans in part by falsely claiming there was no time to separate supposedly disloyal Japanese Americans from the majority who were loyal.  In fact, there was no evidence any were disloyal—and, as Justice Frank Murphy pointed out in his dissent from the 1944 Korematsu case, the emergency claim was a pretext.  Roosevelt did not sign Executive Order 9066 until more than two months after the December 7, 1941 attack at Pearl Harbor, and internment was not completed until October 1942.  As Murphy wrote, “Leisure and deliberation seem to have been more of the essence than speed.” There was no actual sense of urgency in taking action to place Japanese Americans in internment camps—unsurprisingly, as they did not actually pose a threat.

If Trump does ultimately seek to declare an emergency as a basis for gaining access to funds he wants for wall construction, it would be similarly clear that this is a pretext.  Actual emergencies demand immediate action, not months (or years) of equivocation and delay.  What’s really driving Trump is frustration at his inability to convince members of Congress (including Republicans) to appropriate money for his desired project.  What would make it especially dangerous for Trump to take unilateral action is his authoritarian, anti-democratic tendencies and instincts.  Political scientists Steven Levitsky and Daniel Ziblatt write that “[o]ne of our greatest concerns about Donald Trump’s presidency has always been that he would exploit (or invent) a crisis in order to justify an abuse of power.”  If Trump takes unilateral action in an effort to make an end run around congressional refusal to provide the funding he seeks, the most important question will be whether congressional Republicans take action to stop him.

Chris Edelson is an assistant professor of government in American University’s School of Public Affairs. He is the author of Emergency Presidential Power: from the Drafting of the Constitution to the War on Terror.

 

Voting Rights Under Attack in North Carolina, Wisconsin, and Texas

"At the bottom of all the tributes paid to democracy is the little man, walking into the little booth, with a little pencil, making a little cross on a little bit of paper—no amount of rhetoric or voluminous discussion can possibly diminish the overwhelming importance of that point." - Winston Churchill, House of Commons, Oct. 31, 1944

It is the fairness of this simple act that lawmakers, judges, and all citizens must remain vigilant to protect.  Voting is at the very heart of who we are because it is the act we each take, together, to decide who we want to be.  And voting is one of the few things we do as equals.  When we go in the voting booth Churchill described, and mark the ballot—no matter where we are from, how much money we have, or where we are heading—we vote as equals.

One would have hoped that the Voting Rights Act of 1965 would permanently protect this most sacred right to vote free from discrimination and intimidation, but sadly that is no longer the case.  Our process is under attack, and, in many states, the process is failing.

The Supreme Court’s decision in Shelby County unleashed a wave of discriminatory voting laws

In 2013, the Supreme Court gutted the Act in Shelby County v. Holder.  The effect of Shelby County was immediate and far-reaching.  States across the country started passing voter ID laws under the cover of stopping non-existent vote fraud—but really designed to make it harder to register and vote.  Discriminatory laws passed by state lawmakers took effect immediately with no federal review or clearance.  This rush of state voter ID laws, voter purges, cutbacks on early voting, polling place closures, and other restrictions disproportionately disenfranchised voters of color, the poor, the disabled, and the elderly, and made the need for expanded voter protections increasingly urgent.

For three examples, look to North Carolina, Texas, and Wisconsin.  In North Carolina, immediately after the decision in Shelby County, the legislature passed a law targeting specific voting practices — including same-day registration and early voting—that had helped drive recent surges in minority voter turnout. The law was aimed directly at communities of color participating in the electoral process.

In Texas, the legislature passed a law that took effect within hours of the Shelby County decision, prohibiting voters from registering and voting unless they could produce a very specific type of identification.  A lawsuit was filed and the federal court found that over 500,000 voters didn’t have this ID; that many without the correct ID faced 90 minutes or more of travel —without a driver’s license—to get what they’d need; and that racial and language minorities bore the main burden from these voting rights restrictions.  The Court said the law forced some in poverty to “choose between purchasing their franchise or supporting their family.”  After years of litigation, and the passage of a new Texas voting law, in April 2018 the Court of Appeals upheld the new law, finding that it—finally—was constitutional.

In 2011—the year after Wisconsin Republicans won the governorship and majorities in both houses of the legislature—the Wisconsin legislature passed the first of eight laws enacted over the next four years that transformed Wisconsin’s election system.  None of these laws made voting easier for anyone.  A federal lawsuit was filed.  In July 2016, the Court found the law unconstitutional as it related to the challenged voting ID requirements, the time limits on in-person absentee voting, and student voter ID and registration requirements, and granted a permanent injunction.

But this ruling apparently wasn’t clear to the Wisconsin Legislature.  In late 2018—after the state-wide election of a Democratic Governor, Lieutenant Governor, and Attorney General—the legislature passed another law making it more difficult to register and vote.  This law was immediately challenged as violating the federal court injunction.  On January 17, 2019, the Court addressed this most recent attempt to make voting more difficult, and determined that the law violated the injunction granted in 2016:  “This is not a close question: the three challenged provisions are clearly inconsistent with the injunctions that the court has issued in this case.”

True leaders should remove obstacles to voting, not erect them

Do the state legislative majorities passing these restrictive laws believe their present power is so tenuous that they must create obstructions to voting because full, free, and open voting will send them packing?  Do they fear the poor, students, minorities, the elderly, people with disabilities, or single parents will find it too easy to vote, and so must face increased voter restrictions? Are these the reasons numerous state legislatures vote—time and time again—to place limits on the time allowed for in-person absentee voting; to place limits on the validity of temporary identification cards, and to place restrictions on the use of student ID cards for voting?  Does their fear of the voters lead them to pass more and more laws placing extra obstacles and impediments in front of voters—in violation of federal constitutional law?

When will these state legislatures learn that true leaders in a democracy must take all possible steps to encourage voting, and to remove obstacles preventing citizens from voting?  Approximately 40% of registered voters don’t vote, and that should embarrass us all.  But state legislatures keep making it more difficult to register and vote in what seem to be very clear attempts to decrease that embarrassing number.  Why?

One of the most basic civil rights is the right to choose your own leaders

There are many sacred places in this country that symbolize and remind us of the long fight for civil rights, and the heroes—famous and not so famous—who paved the way. These sacred places include lunch counters, bus depots, public schools, universities, public restrooms and drinking fountains, county courthouses, and, of course, countless churches.  In the long and bloody fight for the right to vote—the basic right to be part of democracy—no place is more sacred than Selma, Alabama.

The Selma Heroes, after being beaten and murdered, kept marching because they knew—even after the passing of the Civil Rights Act of 1964—there could be no lasting change in this country without firmly securing the right to vote.  Because they would not quit, and because of the work of so many others in Civil Rights Campaigns, change came.  One week after March 15, 1965 -  Bloody Sunday - President Lyndon Baines Johnson went to Congress to demand passage of the Voting Rights Act.  President Johnson said:

"I speak tonight for the dignity of man and the destiny of democracy. At times history and fate meet at a single time in a single place to shape a turning point in man's unending search for freedom. So it was at Lexington and Concord. So it was a century ago at Appomattox. So it was last week in Selma, Alabama."

Our fathers believed that if this noble view of the rights of man was to flourish, it must be rooted in democracy. The most basic right of all was the right to choose your own leaders. The history of this country, in large measure, is the history of the expansion of that right to all of our people.  Many of the issues of civil rights are very complex and most difficult. But about this there can and should be no argument. Every American citizen must have an equal right to vote. There is no reason which can excuse the denial of that right. There is no duty which weighs more heavily on us than the duty we have to ensure that right.

It appears many state legislative bodies around the country have forgotten —or choose to ignore—President Johnson’s words.  The voting laws like those recently passed again by the Wisconsin Legislature, seeking to place obstacles to voting, ignore their duty to ensure the right to vote.

How to challenge efforts to make it harder to vote

What can we do?  First, ask your legislators why they are ignoring the history of expanding the vote, and why they are trying to make it harder to vote.  When they say “We need stricter voter ID laws, and a limit to early voting, to stop fraud”— challenge them.  Ask to see all the voter fraud cases that are supposedly undercutting our fair elections.

I was a federal prosecutor for the Western District of Wisconsin from January 1980 to March 2017, and there was not one federal voter fraud case prosecuted over all those years.  Nationally, in fact, numerous voting studies and surveys show the opposite is true: Election fraud is extremely rare, and the in-person, individual fraud these laws are supposedly designed to prevent is virtually non-existent.

Do the legislators who spread the fear of fraud really expect us to believe that convicted persons and undocumented aliens - with all the problems they face - are running to the polls with fake IDs because they can’t wait to vote?  Seriously?  Do the legislators who spread this fear, in an attempt to justify voting restrictions, really expect us to believe that while only about 50-60% of us vote, this small number actually includes a large number of voting fraudsters?

Our problem is not voter fraud.  Our problem is voter suppression.  Our problem is the legislators, laws, and misinformation which make it harder to register and vote.  Leadership in a Democracy is not about power, it is about responsibility.

It is time for the U.S. Congress to accept that responsibility; to pass voting rights legislation as recently proposed by the Democratic House Majority designed to expand Americans' access to the ballot box; to give life back to the Voting Rights Act of 1965; and to protect the “simple act” that gives life to our democracy.

Remember the Selma Marchers.  And remember that The March Continues.

The Supreme Court’s Ruling in Ray: A Broken Promise of Religious Liberty for All

On January 23, 2019, an Alabama prison warden denied a Muslim death row inmate’s request to have his imam present in the execution chamber with him. That same facility regularly allows its Christian chaplain into the chamber. The Muslim inmate, Mr. Domineque Ray, challenged the policy as a violation of his Establishment Clause rights, and won below. The Eleventh Circuit granted him a stay of execution until it could decide his case on the merits, finding that it was “substantially likely . . . that Alabama has run afoul of the Establishment Clause of the First Amendment.”

But in a highly unusual move, the Supreme Court reversed the Eleventh Circuit’s ruling in a one-paragraph decision, allowing the state of Alabama to execute Mr. Ray without his spiritual advisor present. The Court did not reach the merits of his Establishment Clause claim, but instead stated only that the stay is reversed “[b]ecause Ray waited until January 28, 2019 to seek relief.” But even though the Court did not weigh in on the merits, the decision—and its choice not to do so—signaled to many in the Muslim community that religious rights only matter to the Court when the petitioner is Christian.

Ray learned that his imam’s presence was prohibited only five days before scheduled execution

Perhaps the most astonishing aspect of this decision is that Ray was not aware of the prison’s policy against allowing his imam into the room until very shortly before his scheduled execution date, and that he filed suit just five days after finding out that his imam would not be allowed to be present with him. His lawsuit would not have been ripe before then, and the record below shows that the prison deliberately obstructed his access to its specific policies in that regard and was not clear about the fact that only the Christian chaplain, but not the Muslim imam, would be allowed into the execution chamber. Thus, even though he moved very quickly to try to claim his religious rights—again, he filed suit just five days after the warden denied his request—the Court’s conservative majority saw fit to dismiss his challenge out of hand.

The case is a textbook example of religious discrimination. The actions of the state of Alabama transparently favor Christian death row inmates over all others. As Justice Kagan noted in her powerful dissent, “[t[hat treatment goes against the Establishment Clause’s core principle of denominational neutrality.” It needlessly deprives a Muslim prisoner of the ability to have a spiritual advisor of his own faith with him in his final moments. Yet the court’s conservative majority, which expresses deep concern about religious liberty in other contexts, took the unusual measure of reversing the Eleventh Circuit stay, under an abuse of discretion standard a case like this ordinarily would not meet, in order to allow him to be killed. It did so without giving him so much as an opportunity to make a case for having his chosen religious representative present at his execution.

The Ray ruling is not the first time the Supreme Court has dismissed Muslim’s religious rights

This is not the first time the Court casually dismisses the religious rights of Muslims in a way that is completely inconsistent with its treatment of religious rights when Christians assert such rights. As we wrote this past summer, the Supreme Court’s twin decisions in Trump v. Hawaii and in Masterpiece Cakeshop highlight a fundamental inconsistency in the Court’s attitude towards religious rights: when it came to the Christian baker, the Court viewed one ambiguous stray comment from a commissioner—a comment that formed no part of the decision—as hostility towards religion. In that context, the Court stated that the constitution’s protection for the freedom of religion prohibits even “subtle departures from neutrality.” This was enough for the Court to sanction the baker’s discriminatory refusal to provide service to an LGBT couple.

Yet just a couple of weeks later in Trump v. Hawaii, the Court upheld the Trump administration’s Muslim Ban in the face of a years-long clear and undisputed record of anti-Muslim animus. There, the Court gave no significance to the very unsubtle “departures from neutrality”. Between those decisions and the Court’s willingness last week to dismiss out of hand the religious rights of a Muslim man on death row, the message to religious minorities is hard to ignore.

The decision in Ray gratuitously robbed a man of the ability to practice his faith during the final moments of his life. It will undoubtedly be remembered as a shameful mistake in the Supreme Court’s history. But even more, and particularly when juxtaposed with the Supreme Court’s recent decisions in Hawaii and in Masterpiece Cakeshop, it sends the dangerous message to religious minorities that ultimately, they do not enjoy the same protections that their Christian counterparts do. It signals that this Supreme Court majority is adopting a jurisprudence of religious liberty, not for all, but only for a chosen few.

Sirine Shebaya is the Interim Legal Director at Muslim Advocates.

Trump Admin Attack on California’s Environmental Authority is Legally Indefensible

[Cross-posted on ACSblog and Legal Planet]

In an outright assault on public health and the environment, the Trump Administration recently proposed rolling back national motor vehicle emission standards put in place by the Obama Administration. As part of this proposal, the Trump Administration also took aim at a special provision long-enshrined in the federal Clean Air Act allowing California to set its own motor vehicle standards--a provision that has resulted in tremendous environmental benefits and been a textbook success story for cooperative federalism. In a new Issue Brief published with the American Constitution Society today, we outline why we believe this unprecedented move is legally indefensible and environmentally catastrophic.

To fully understand the significance of the Trump Administration’s attack, one has to take a quick trip back to 1940s Los Angeles. Angelenos were faced with inexplicable attacks of “eye-irritating haze, accompanied by a peculiar ‘bleaching-solution’ odor.” Los Angeles County reacted by forming the nation’s first Air Pollution Control District, and focused on reducing pollution from local industrial sources like petroleum refineries and rubber plants. But in the early 1950s, CalTech chemist Dr. Arie Jan Haagen-Smit realized the accumulation of what we now term “smog” was actually the result of emissions from motor vehicles reacting with Southern California’s sunshine to form ground-level ozone trapped by the surrounding mountains. So in 1960, California formed the Motor Vehicle Control Board and began regulating motor vehicle emissions by setting tailpipe standards limiting the pollution cars were allowed to emit.

California set strict new public health-based standards that could only be met through the development of new technology like the now-omnipresent catalytic converter. Meanwhile, Congress was under pressure from automakers to head off a patchwork of 50 different vehicle standards. So in the 1970 Clean Air Act amendments that created our modern air quality regulations, Congress included an express preemption clause barring states from setting their own vehicle standards. But, recognizing both California’s policy leadership and its particular problems with smog caused by vehicles, Congress included a carve-out for the state. Still enshrined in the Clean Air Act today, this special exemption allows California to issue its own standards as long as it seeks a federal preemption “waiver” from the Environmental Protection Agency (EPA).  So long as California’s standards protect public health and welfare at least as strictly as federal law, and are necessary “to meet compelling and extraordinary conditions,” the law requires EPA to grant California’s request for a preemption waiver.

Each time California adopts new standards, the state applies to EPA for a federal preemption waiver for those standards. Since 1970, California has been granted more than 100 waivers for each iteration of its motor vehicle standards. And the EPA has typically responded by adopting California’s standards at the federal level once California has successfully demonstrated their achievability at the state level. This cooperative and iterative federalism relationship has resulted in emissions reductions beyond what either California or the EPA could have achieved on its own. New passenger vehicles are 99% cleaner today than when first regulated back in the 1960s. And regulating tailpipe emissions has more than paid for itself--the federal government estimates that every dollar spent to reduce emissions from vehicles results in nine dollars in benefits to public health, the environment, productivity, and consumer savings.

So now we come to August 2018, when the Trump Administration proposed rolling back harmonized fuel economy and greenhouse gas tailpipe standards agreed upon by both California and the federal government back in 2012, freezing the standards at 2020 levels instead of continuing to ratchet down through the 2025 model year. Ignoring the successful history described above, the Trump Administration also seeks to revoke California’s waiver to set their own standards--attempting to lock California into the proposed weakened federal standards. Such a revocation is completely unprecedented. Under George W. Bush, the EPA once denied a request for a waiver (and even that was later reversed by the Obama Administration)--but the EPA has never revoked a waiver once it has already been granted to California.

As we detail in the Issue Brief published today, not only does revoking California’s waiver fly in the face of federalism principles and threaten the tremendous environmental progress made over the past five decades, we believe revoking the waiver is also legally indefensible for three primary reasons. First, the Clean Air Act does not provide EPA with the authority to revoke a waiver; it allows EPA to grant or deny a waiver but not to revoke one. Second, California’s waiver continues to satisfy all requirements of the Clean Air Act provisions guiding when EPA should grant a waiver request. Revocation of California’s waiver would ignore the “compelling and extraordinary” conditions that have supported California’s waiver in the past, conditions which, if anything, have become even more compelling. Finally, though the Trump Administration argues that California’s greenhouse gas tailpipe standards are preempted by the federal Department of Transportation’s authority to issue fuel economy standards, there is virtually no support for this position. Multiple federal courts have already rejected this argument in earlier challenges to California’s first tailpipe standards, and these arguments are no more convincing now than when they were rebuffed in 2008.

The proposed rule issued last August is still just that--a proposal. A final rule was previously expected to be released in March, but this date may be pushed back given the recent federal government shutdown. Negotiations between acting EPA Administrator Andrew Wheeler and California Air Resources Board Chair Mary Nichols continue, and one hopes that the Trump Administration will back down from this environmentally catastrophic and legally indefensible proposal. But if the final rule includes the waiver revocation as proposed, we believe such a move should be overturned in court for all the reasons we’ve outlined in today’s Issue Brief.

We Need a National Debate on a Federal Tax on Wealth

This article was originally published in April 2017.

America’s increasing economic inequality threatens our liberal democracy. Economic inequality translates into political inequality and corrodes our democratic institutions and the viability of our Constitution. Ganesh Sitaraman describes these threats in his excellent new book, The Crisis of the Middle Class Constitution: Why Economic Inequality Threatens Our Republic. We need urgently to find innovative tools to counter the erosion of our foundational, shared belief in opportunity and fairness, the American Dream.

It is time to begin a serious national debate about the wisdom and constitutionality of a federal tax on wealth – an annual tax of a small percentage of an individual taxpayer’s net worth in excess of some large minimum. Just for example:  a 1 percent annual tax on wealth in excess of 10 million dollars, which would affect less than 1 percent of Americans. We leave the details to those skilled in economic and tax policy. Nor do we have in mind the short-term political viability of such a tax in the current Congress – though we will note that in 1999 Donald Trump suggested a one-time 14.25 percent tax on net worth in excess of 10 million dollars.

What we wish to do now is to spark the debate by arguing against the common (and in our view, unwarranted) assumption that a U.S. tax on wealth would be unconstitutional.

The Constitution grants Congress broad power to “lay and collect Taxes,” which clearly includes the authority to tax wealth. No problem there. A serious question is raised by a second requirement for how certain taxes must be apportioned: “No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken.”

Translating 18th century language, this means Congress must apportion any capitation (per person, without regard to income or wealth) or other direct tax among the states relative to their population. This makes sense for a per capita “head” or “poll” tax, but it clearly would be unworkable, indeed nonsensical, for a tax on wealth. Some states have far more wealthy individuals and wealth per capita than others. Compare Connecticut and Mississippi, or California and Montana.

The requirement that "direct" taxes be apportioned was an expedient to foster compromise between northern and southern states at the constitutional convention, rather than any thoughtful or principled decision to limit the federal government’s authority to tax wealth. James Madison recounted in his notes of the debate of Aug. 20, 1787: "Mr [Rufus] King asked what was the precise meaning of direct taxation? No one answd." The Constitution’s other reference to direct taxes occurs in the infamous “Three-Fifths” compromise clause, which (prior to its abrogation by the Fourteenth Amendment) directed how persons who were enslaved were to be counted for purposes of calculating “Representatives and direct Taxes.”

Constitutional text of course may not be ignored simply because it was based on compromise rather than thoughtful policy, even compromise deeply infected by the evils of slavery. So what, if anything, beyond a per capita “head” tax is a “direct” tax?

The Supreme Court addressed this question early, in a 1796 decision upholding an unapportioned federal tax on carriages. The unanimous Court in Hylton v. United States agreed on the principle that “direct” should be narrowly and sensibly construed to apply only where apportionment would work in practice for that type of tax. The Court identified two categories of “direct” taxes: “capitation” taxes (those imposed equally on every individual, at a uniform, fixed rate without regard to circumstance) and taxes on land.

Writing individually, as was customary at the time, Justice Chase emphasized that because “[t[he great object of the Constitution was, to give Congress a power to lay taxes, adequate to the exigencies of government,” this limitation on that power “is only to be adopted in such cases where it can reasonably apply.” Justice Paterson explained that the apportionment limit on a per acre land tax was intended to help the Southern states, which “had extensive tracts of territory, thinly settled, and not very productive.” He observed that the apportionment requirement itself “was the work of compromise” and “cannot be supported by any solid reasoning” and “therefore, ought not to be extended by construction.” These Justices’ contemporaneous understanding was consistently applied for more than a century, most notably in 1881 in Springer v. United States to uphold a tax on income, where the Court wrote “direct taxes, within the meaning of the Constitution, are only capitation taxes, as expressed in that instrument, and taxes on real estate.”

In 1895 the Court took a wrong turn in its deeply flawed decision in Pollock v. Farmers’ Loan & Trust Company striking down a federal income tax as an unapportioned “direct” tax. Decided at the dawn of the now-discredited era of extreme activism that struck down minimum wage, maximum hour and child labor laws, Pollock expanded the definition of “direct” taxes beyond capitation and land taxes to encompass taxes on real and personal property and even income from real or personal property. Four Justices, including John Marshall Harlan, vigorously dissented.

Pollock was and is widely recognized as wrongly decided. The ratification in 1913 of the Sixteenth Amendment abrogated Pollock’s holding that a tax on income derived from real or personal property was a "direct" tax and explicitly granted Congress the power to tax income without apportionment – which Congress did, as we are reminded every April 15. But the Amendment did not expressly reject Pollock’s rationale under which a wealth tax almost certainly would be considered a “direct” tax that the apportionment requirement would effectively preclude. That the Sixteenth Amendment did not expressly address this rationale one way or the other is not surprising, given the nature of constitutional text.

The Court has not reexamined Pollock’s reasoning and departure from Hylton and its progeny in a way that squarely addresses a wealth tax. Instead, the Court generally has distinguished Pollock and upheld many federal taxes without addressing the issues that a wealth tax squarely would present. One important exception is Eisner v. Macomber, which struck down a tax on stock dividends, also decided in the “Lochner Court” era when an inappropriately activist Court struck down a range of progressive state and federal social and economic legislation. Four Justices, including Holmes and Brandeis, strongly dissented.

Once we set aside the errors that Pollock set in motion, a wealth tax does not seem to us to be a “direct” tax, either as a functional or a categorical matter, the two criteria the Court set forth in Hylton. Under Hylton’s functional principle (which we think reflects the correct understanding of “direct” tax), because “the rule of apportionment” cannot “reasonably apply” to a wealth tax, it would not be a “direct” tax. Apportionment of a tax on net worth among the states according to population, like the Court said of an apportionment of a tax on carriages, “would evidently create great inequality and injustice.”

On its face, Hylton’s recognition of land taxes as “direct” taxes that must be apportioned might seem a difficulty, given that a general wealth tax must include real property as an element in the calculation of net worth. But we think that a tax on wealth would be a categorically different because it would not be based on the value of real property viewed in the abstract. This is illustrated by the many Americans with almost all of their savings in heavily mortgaged homes on which they pay real estate taxes – some even with negative net worth thanks to “under water” mortgages that exceed the home’s value.

Ultimately, we see no sound constitutional justification for interpreting “Capitation, or other direct, Tax” to deny the federal government the authority to tax wealth. Hylton was correct in its central premise: the apportionment requirement was intended by the Founders, and is properly read now, to limit only narrowly the broad taxing power that actually was a principal motivation for adopting the Constitution to replace the Articles of Confederation. Pollock was rooted in discredited Lochner-era restrictions on the government’s power to affect private property interests. The remnants of Pollock that may have survived the Sixteenth Amendment and that the Court has not yet formally rejected should not stand in the way of the federal government’s ability to address the pressing national problem of economic inequality.

Just as the New Deal Court rejected the Lochner-era freedom of contract and Commerce Clause decisions – just as the Darby Court in 1941 repudiated Hammer’s invalidation of federal protections against child labor – so should our generation restore the original and nineteenth century view of “direct” tax and reject misguided limitations on congressional power. We welcome the constitutional debate that the proposal would engender, just as FDR welcomed and ultimately prevailed in the constitutional debate over the New Deal.

A Lesson in Failure: OIRA, Neomi Rao, and Deregulation at Any Cost

The most significant function of the Office of Information and Regulatory Affairs (OIRA) within the Office of Management and Budget (OMB) is reviewing agency rulemakings, including weighing a proposed rule’s economic costs to industry against its public benefits.[1]  This is no minor responsibility.  As the Government Accountability Office (GAO) has found, OIRA review “can have a significant—if not determinative—effect on a broad array of federal regulations.”  Indeed, OIRA reviews often result in changes, reconsideration, or full withdrawal of agency actions.

While the value and appropriate scope of OIRA review has been the subject of intense debate, the value of such review (regardless of scope) necessarily relates directly to the quality, thoroughness, and integrity of its analysis.  Without a commitment to sound, robust, and fact-driven examination, OIRA review can offer nothing of genuine worth.  As a result, when OIRA shirks its public responsibility to engage in thorough and reasoned decision-making, its function in government becomes at best pointless bureaucracy, and at worst flagrant political tampering.

Under President Trump, and with Neomi Rao at the helm, OIRA has embraced politicized regulatory obstruction as its raison dêtre.  It has seemingly abandoned any commitment to professionalism and objectivity – turning its back on the core value of “neutral competence”[2] – and has rubber stamped politically driven agency actions divorced from methodological integrity or thorough technical analysis. The office, in effect, has abdicated its responsibility to the body politic and to the American people, in service of a corporate-driven deregulatory ideology.  A practice that Rao brags about, perhaps unsurprisingly in light of her ideological zeal and the radical nature of her past writings.

OIRA’s shameful treatment of recent EPA rules illustrates the perfidy of its current leadership.  In the instance of EPA’s proposed gutting of the Mercury Air Toxics Standards (or MATS) – rules that save as many as 11,000 lives every year across America, and prevent hundreds of thousands of hospitalizations, asthma attacks, and missed school and work days – OIRA greenlighted EPA’s plan to issue a backhanded repeal of the regulations.  In doing so, OIRA turned a blind eye to the fact that EPA had conducted no analysis whatsoever of the lost public health benefits of this rule for the American public.  OIRA instead went along with EPA’s transparent subterfuge, relying on a legal technicality to claim that EPA was not repealing the rule at all.  Not only did OIRA entirely ignore the actual consequences of the agency’s action, it went even further by tacitly adopting a new way of performing cost-benefit analysis that allows OIRA to pretend that the real world benefits of certain rules (including but not limited to the MATS rule) simply do not exist.  This unprecedented and frankly outrageous approach to cost-benefit analysis is a one-way ratchet designed to disadvantage rulemakings that save lives and protect the public – a point with which even hawkish Cass Sunstein agrees.  Similarly, OIRA allowed actions attempting to delay EPA standards addressing accidental chemical releases and rules limiting emissions of methane – each of which failed to include any meaningful analysis of costs or benefits.  These examples (and many others) reflect OIRA’s decision to sacrifice public health and wellbeing in the interest of inflating corporate profits – without any serious demand for the kind of scrutiny that OIRA is meant to ensure.

In the end, there are two ways to view OIRA’s failures:  either it reflects a lack of skill or understanding on the part of the organization’s leadership, or it demonstrates the leadership’s willful and knowing subversion of the institutional mission of OMB.  Certainly, the fact that courts have struck down the vast majority of challenged OIRA-approved rules (including environmental rules) suggests a degree of incompetence.  Either way, OIRA’s conduct amounts to a betrayal of the public trust.

Moreover, OIRA’s malfeasance raises serious concerns for the integrity of the U.S. Court of Appeals for the District of Columbia Circuit – a court to which Trump has nominated Neomi Rao (the figure at the center of OIRA’s credibility gap).  The DC Circuit plays a special role in the federal judiciary, both as the court most vital to defining the scope of federal agency authority and legality of their actions, and as a court regularly called upon to render decisions that are fundamentally grounded in the science, data, and technical analysis of expert agencies.  OIRA’s willingness under Rao’s leadership to overlook glaring shortcomings in agencies’ consideration of public benefits, costs, impacts and tradeoffs, in the interest of ideologically driven political outcomes bodes poorly for the influence that Rao might have on the integrity of DC Circuit jurisprudence.

Given the national significance of the DC Circuit’s rulings, this ought to trouble not just lawmakers in Washington, but everyone who wants their government to be accountable to the people, not just to the powerful corporate lobby.

[1] See Curtis W. Copland, The Role of the Office of Information and Regulatory Affairs in Federal Rulemaking, 33 Fordham Urban Law Journal, 101 (2011).

[2] See Is this Any Way to Run a Democratic Government, Stephen J. Wayne ed., at p. 137 (2004).