Judge Kavanaugh on Separation of Powers

This blog was originally posted on Take Care.

On July 9, 2018, President Donald Trump announced Judge Brett Kavanaugh as his nominee to replace Justice Anthony Kennedy on the Supreme Court. In brief remarks after the introduction, Judge Kavanaugh said very little about the law, but one comment stands out. While describing his experience teaching law school, he said: “For the past 11 years, I have taught hundreds of students, primarily at Harvard Law School. I teach that the Constitution’s separation of powers protects individual liberty, and I remain grateful to the dean who hired me, Justice Elena Kagan” (emphasis added). We don’t know why Judge Kavanaugh included that non sequitur about the relationship between separation of powers and liberty. Regardless of his intent, however, the statement points to important questions about Judge Kavanaugh’s particularly crabbed vision of liberty and its constitutional protections, his commitment to a concentration of powers in the presidency, and his views about the looming controversy about the constitutional validity of Robert Mueller’s investigation into the President and his campaign.

1.  Judge Kavanaugh’s one-sided view of liberty.

To explain Judge Kavanaugh’s views of liberty requires a brief detour into his recent dissent in PHH Corp. v. Consumer Financial Protection Bureau (CFPB). In short, PHH involved a constitutional challenge to the structure of the CFPB, an agency created by Congress after the 2008 financial crash to regulate financial products designed for individuals and families. Like the Federal Reserve Board and many other agencies that regulate the economy, the CFPB is an “independent agency.” This means that the President can fire its leadership only “for cause,” which insulates the CFPB’s economic policy work from short-term political considerations. Unlike many other independent agencies that have multi-member boards, however, the CFPB has a single director who is appointed by the President for a five-year term. PHH Corporation, unhappy about an enforcement action that the CFPB brought against it, challenged this aspect of the CFPB’s structure as violating the Constitution’s separation of powers.

Sitting en banc, the D.C. Circuit upheld the constitutionality of the CFPB. But Judge Kavanaugh dissented. (He also wrote the panel opinion that the full court overturned.) Judge Kavanaugh opened his dissent with a striking first line: “This is a case about executive power and individual liberty.” Throughout the opinion, he emphasized that, in his view, our constitutional separation of powers exists to restrain the regulatory reach of the federal government, which he sees as a threat to liberty.

But Judge Kavanaugh’s views about liberty and how to protect it, as expressed in PHH, are notably one-sided. His concerns there are exclusively about the ways that the creation and enforcement of government regulations impede liberty; he focuses on how an “agency can infringe your liberty in some way – for example, by enforcing a law against you or by issuing a rule that affects your liberty or property…” Judge Kavanaugh’s folksy use of the second person here should not keep us from remembering what the CFPB was created to do: protect consumers from being misled or cheated by powerful, savvy financial institutions. As Judge Nina Pillard put it in her PHH majority opinion, “Congress understood that markets’ contribution to human liberty derives from freedom of contract, and that such freedom depends in part on market participants’ access to accurate information, and on clear and reliably enforced rules against fraud and coercion.” In other words, for some people, the CFPB might well provide more liberty.

You don’t have to think that the CFPB’s single-director structure is constitutional, or think that its regulatory decisions are wise, to find Judge Kavanaugh’s dissent troubling. Although he worries, as we all should, about the ways that regulation can impede liberty, he seems blind to the ways that regulation can be liberty-enhancing. Seeing laws only as liberty-constricting misses the point of “ordered liberty.”

Consider run-of-the-mill criminal laws. Certainly laws against murder or theft impede the liberty of those who want to murder or steal. They may also impede the liberty of those innocent people who are more likely than others to be deemed suspicious, sometimes for inappropriate reasons like race. But such laws also enhance the liberty of people who want to go about their lives without a constant threat of violence. The democratic and constitutional challenge in assessing laws is to strike the right balance, but Judge Kavanaugh seems to weigh only one side of the equation. As Mark Joseph Stern points out, for example, Judge Kavanaugh would have struck down Washington, D.C.’s ban on assault rifles. There, too, he expressed concern about the liberty of the direct subjects of the regulation—owners of assault rifles—but offered no such regard for the liberty of those who would have been protected from having their bodies ripped apart by the unique power of those weapons.

It doesn’t take much imagination to see what Donald Trump might find attractive about this way of thinking. To put it mildly, Trump is well-known for chafing at legal constraints. He promised the elimination of two regulations for every one enacted, and he has bragged repeatedly about his deregulatory agenda. Judge Kavanaugh may not always vote in favor of corporations and against regulations, but it’s hard to read PHH—and his one-sided ode to liberty as lack of law—and not see a heavy anti-regulatory perspective.

2. Liberty for some but not all.

Remarkably, however, Judge Kavanaugh’s view of liberty as protection against arbitrary or heavy-handed government intrusion does not extend to everyone. Compare his PHH and assault rifle dissents to his dissent in Garza v. Hargan. That case involved a 17-year-old undocumented immigrant, J.D. As an undocumented minor, J.D. was in the custody of the Department of Health and Human Services’ Office of Refugee Resettlement in a shelter in Texas. Shortly after she arrived in the United States, J.D. discovered that she was pregnant. She wanted an abortion. J.D. complied completely with Texas law governing access to abortion, including obtaining the judicial approval that Texas law mandates for a minor seeking an abortion without parental notification. Neither the federal government nor the shelter would be paying for the procedure or even transporting her.

All that J.D. needed from the government was approval to leave the shelter and be transported to the clinic by private parties. The government, however, refused to provide that approval. Although it conceded that J.D. had a constitutional right to obtain an abortion, the government argued that it was not imposing an unconstitutional “undue burden” because she could have an abortion if she either found a sponsor (much like a foster parent) or if “she surrendered any claim of legal right to stay here and voluntarily departed” the United States. The D.C. Circuit rejected these arguments. As Judge Patricia Millett pointed out in her statement accompanying the D.C. Circuit’s en banc order, the government had already been searching, unsuccessfully, for a sponsor for weeks. Further, J.D. might in fact have a legal right to stay in the United States due to the violence she was fleeing, and abortions are illegal in her home country.

Judge Kavanaugh, nonetheless, would have stayed the district court’s order requiring the government to allow J.D. to leave the shelter for the abortion, at least for another two weeks. Although he conceded (at least for purposes of the case) that J.D. had a constitutional right to an abortion, he would have imposed the delay ostensibly to give the government more opportunity to identify a sponsor for J.D. so that she could revisit her decision while in a “better place” than the shelter. Of course, the longer the pregnancy continued, the greater the risks of an abortion, the further she would have to travel to get to a doctor willing and able to perform it, and the greater the chance that she would reach the point in the pregnancy when Texas law would not allow the abortion at all. And this desire for J.D. to have a sponsor so she would be in a “better place” before obtaining an abortion was not even an argument that the government made. So not only would Judge Kavanaugh have allowed the government to interfere with J.D.’s liberty, but he was willing to do so on a basis that the government itself did not even argue. Judge Kavanaugh—a democratically unaccountable federal official—was willing to invent a rationale to restrict her access to health care he disapproved of.

So here is what was at stake in Garza: the federal government, acting with no valid statutory or regulatory authority, had taken what Judge Millett described as a “categorical position against abortion”—a procedure to which J.D. had a constitutional right. It is hard to imagine an individual less well-situated to resist regulatory overreach: J.D. was an undocumented minor living in a shelter controlled by the entity restricting her movements. Not only that, but unlike PHH Corporation, the liberty that J.D. sought to exercise – the right to decide whether to remain pregnant – is liberty expressly protected by Supreme Court precedent. The same cannot be said for the financial liberty that Judge Kavanaugh extolled in PHH Corp. Yet Judge Kavanaugh did nothing but invent new reasons to rule against J.D.

3.  Liberty and accountable government.

A final, and highly significant, aspect of Judge Kavanaugh’s remarks and his PHH dissent is what they tell us about how he might think about the constitutional validity of Robert Mueller’s investigation into Donald Trump and his campaign, and what that means for liberty. As I’ve explained, Judge Kavanaugh’s tribute to liberty in the East Room echoes the way he talked about liberty in PHH. And those passages of his PHH dissent relied heavily on Justice Scalia’s dissent in Morrison v. Olson.

In Morrison, the Supreme Court heard a challenge to the then-existing independent counsel law. That law provided for the judicial appointment – triggered by a preliminary investigation and request by the Attorney General – of an independent counsel to investigate and, where appropriate, prosecute high-level government officials. The law also provided for termination of the independent counsel only under limited circumstances.

In a 7-1 decision—Justice Kennedy did not participate—the Court upheld the independent counsel statute against a separation of powers challenge. Chief Justice Rehnquist wrote the majority opinion, and Justice Scalia was the lone dissenter. Justice Scalia’s dissent is a famously well-written opinion. (It includes the fantastic line, “But this wolf comes as a wolf.”). And it is revered by many conservatives for its articulate defense of the unitary executive and its explicit connection of separation of powers principles to liberty. But it was a dissent.

Nonetheless, in his PHH dissent, Judge Kavanaugh cited Justice Scalia’s dissent repeatedly as authority for the relationship he sees between executive authority and liberty. Not only that, but he appeared to give the dissent the force of law: “Recall, moreover, that the independent counsel experiment ended with nearly universal consensus that … Justice Scalia had been right back in 1988 to view the independent counsel system as an unwise and unconstitutional departure from historical practice and a serious threat to individual liberty.”

It’s true that Congress let the independent counsel law at issue in Morrison expire. And it’s true that the law came under significant criticism from the left as well as the right during the Clinton Administration—particularly following independent counsel Kenneth Starr’s investigation (in which, ironically, a young Brett Kavanaugh participated). But even if it is true that most people now agree that the independent counsel law was unwise—though Judge Kavanaugh cites no evidence for that claim—it is still a remarkable thing to cite a Supreme Court dissent’s constitutional analysis as legal precedent. (That use of a dissent as legal authority alone is worth some questions at Judge Kavanaugh’s confirmation hearing.)

Of course, even if it were true that Justice Scalia’s dissent had become law, that would not dictate the outcome of a challenge to the Mueller investigation. Robert Mueller is a special counsel, not an independent counsel, and he was appointed pursuant to Justice Department regulations that provide no role for the judicial branch. The separation of powers issues are different. But Judge Kavanaugh has suggested in a law review article that the President should be statutorily immunized not only from indictment but from all criminal and civil investigations while in office. In other words, he has already weighed in on at least some of the policy considerations that would arise in a constitutional challenge to Mueller’s investigation. And as Kevin Russell points out at SCOTUSblog, Judge Kavanaugh’s law review article contains “the beginning of structural constitutional argument” about presidential immunities. (There’s an on-line debate about what we can reliably conclude about Judge Kavanaugh’s views on this constitutional question.)

So here is the punch line: In the face of an administration riddled with conflicts of interest, self-dealing, and corruption, and despite the realistic possibility that the President and/or his closest advisors participated in a criminal conspiracy during the 2016 election campaign, Judge Kavanaugh chose, while standing next to the President, to refer to a vision of separation of powers that concentrates power in the President and may insulate him from meaningful accountability. Perhaps that choice was intended as a signal; perhaps not. Either way, it highlights Judge Kavanaugh’s troubling and one-sided view of liberty and how to protect it. Just as markets depend on reliable and full information, so does the public’s ability to demand accountability and action through our constitutional checks and balances. Our liberty depends on those features of our system of government operating well. It is not clear that Judge Kavanaugh agrees.

The First Amendment, the Second Amendment, and 3D Firearms

The Trump State Department’s decision to lift restrictions on the Internet posting of computer code that can be used to print 3D plastic firearms has created a small uproar. Depending on who one asks, a federal district court’s recent injunction prohibiting the posting of the code to the Internet is either a “massive prior restraint on speech” or, to borrow a popular political and cultural term, a First Amendment “nothingburger.” As others have observed, the First Amendment issues are conceptually difficult and unresolved. Much will turn on whether courts view any restriction as a content-based restraint on speech or a regulation of the functional capabilities of 3D code that incidentally and marginally affects speech. Some have also asserted that the Second Amendment bars government from prohibiting distribution of 3D firearms code. That claim would likely fail under current Second Amendment doctrine.

Weaponizing the First Amendment

I have written elsewhere about the extent to which the First Amendment might be relied upon to facilitate the recognition or exercise of Second Amendment rights. For instance, the First Amendment does not do firearms proponents much good in the context of public protests. That is because there is, generally speaking, no First Amendment right to openly carry a firearm in public – although, in most jurisdictions, there is a legal right to do so under state law.

Whether claimants relying on the First Amendment to protect the distribution of computer code that enables the 3D printing of firearms will fare any better in this regard is a more difficult question. For purposes of this post, let us simplify the matter by removing from consideration the administrative law, standing, federalism, and other issues at stake in the pending litigation over the State Department’s export control regulations. Let us assume instead that the question is whether the government can directly prohibit the Internet distribution of the 3D code, either by law or injunction. Let us further suppose that any restriction would not bar access to the code by more direct means, for example by acquiring it from the creator.

On the one hand, any such action might be viewed as a content-based restriction on speech. Worse still, one could argue that it is a content-based “prior restraint,” in which case it is subject to a very strong presumption of unconstitutionality under the First Amendment. Lower courts have held that computer code can constitute a form of protected speech. Government has very limited power to regulate speech based on its content or to restrain or license publication in advance. That is generally true even if the communications or information can be used for evil or harmful purposes, for example manufacturing a firearm that is illegal to possess. For instance, a law or other regulation banning the sale of a book that describes how to produce firearms at home would raise serious First Amendment concerns. Thus, assuming the code is “speech” – i.e., technical information that can be read and understood by some audience capable of deciphering it – then an injunction or law prohibiting publication would likely be treated as First Amendment violation. That is so, of course, unless the government can demonstrate a compelling interest for the prohibition and that it is no greater than necessary to further that interest. The Supreme Court has recognized interests in national security and foreign affairs as compelling in the First Amendment context. But a global prior restraint, in the form of an injunction that prohibits making the code available online – to anyone, under any circumstances, anywhere in the world – is not likely to be considered “narrowly tailored” to advance the government’s interests. Thus, if this is the frame that courts use, firearms proponents will successfully facilitate access to firearms technology, and in some cases firearms themselves, through invocation of the First Amendment.

On the other hand, the prohibition under consideration would not necessarily be characterized as a content-based prior restraint on speech. The fact that something constitutes “speech” does not prohibit the government from regulating it. Even assuming the 3D code is “speech,” the prohibition would not be directed at suppressing a topic of discussion or a point of view. The government would be seeking to prevent distribution of the code not because of what it can say, but rather because of what the 3D code can do – namely, direct a computer, without human intervention, to create components of an operable firearm. If that is the proper framing of the issue, then a distribution ban would be subject to the lower standard of review applicable to content-neutral restrictions on conduct that have incidental effects on speech. The government would still have to demonstrate that the law is narrowly tailored to a significant interest. However, under this standard, courts are more likely to be deferential to governmental claims that the restriction furthers interests in safety and security. Further, a ban on Internet distribution of the 3D code would not bar individuals from explaining or discussing how firearms are made or perhaps distributing this information by other means (for example, a how-to manual available in stores or via the mail).

The Second Amendment and Firearms Acquisition

Some have argued that the Second Amendment right to keep and bear arms protects a subsidiary “right to acquire arms.” Under current interpretations of the Second Amendment, that argument is likely to fail.

Heller v. District of Columbia, which recognized an individual right to keep and bear arms for the purpose of self-defense, did not mention a “right to acquire.” But even if the Second Amendment protects a right to acquire firearms, nothing in the hypothetical restriction prevents law-abiding citizens from acquiring the computer files directly and making a 3D firearm for self-defense and defense of the home. Nor would the restriction prevent anyone from acquiring firearms from other sources for such purposes. Moreover, under any standard of scrutiny, the limited restriction on access to 3D code would likely be outweighed by the government’s law enforcement and safety interests. Thus, like most post-Heller Second Amendment challenges, the claim would likely fail.

We Won’t Get Fooled Again

We’ve seen this movie before. President Trump nominates someone to the Supreme Court. The nominee declines to answer questions about Roe v. Wade, or any other hot button issue on the grounds that the issue may come before the Court. Indeed, other than imprecisely praising Brown v. Board of Education, the nominee declines to express a view about any decision that the Supreme Court has issued since its founding in 1789. Instead, the nominee offers fulsome, if vague, support for respecting precedent. As we watch this pas de deux between the nominee and Congress over how much the nominee respects precedent, and wonder whether Roe v. Wade and numerous other precedents will be swept aside, we should compare the statements of Supreme Court nominee Judge Gorsuch to the actions of Supreme Court Justice Gorsuch.

In his confirmation hearing, Judge Gorsuch repeatedly expressed his strong support for precedent. “Precedent is the anchor of the law.” “For a judge, precedent is a very important thing. We don't go reinvent the wheel every day.” Judges must “start with a heavy, heavy presumption in favor of precedent,” but in “a very few cases,” precedent may be overruled. In deciding whether to overrule a precedent, judges should consider “the age, reliance interests, and the workability of the precedent, among other things.”

Apparently the “other things” that judges should consider are whether the judge simply disagrees with the precedent. In his first term on the Supreme Court, Justice Gorsuch joined virtually every call to overrule a prior precedent, and he suggested that precedents be overruled in nearly 10% of all the cases decided by the Court.

This year, in Janus v. AFSCME, Justice Gorsuch joined a 5-4 majority to overrule Abood v. Detroit Bd. of Ed., 431 U. S. 209 (1977), on union agency fees. In South Dakota v. Wayfair, Inc., Justice Gorsuch joined a 5-4 majority to overrule National Bellas Hess, Inc. v. Department of Revenue of Ill., 386 U. S. 753 (1967), and Quill Corp. v. North Dakota, 504 U. S. 298 (1992), in a Commerce Clause case concerning taxation of remote sellers. In SAS Institute, Inc. v. Iancu, Justice Gorsuch, writing for a 5-4 majority in a patent case, stated that whether the administrative deference rule in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984), “should remain is a question we may leave for another day.” Abood, Quill, and Chevron have been settled law for decades, and each has formed the basis of a significant part of our economy and society.

In concurring and dissenting opinions this year, Justice Gorsuch was willing to go further than his colleagues in dismantling other long-standing precedent. In Carpenter v. United States, Justice Gorsuch dissented alone in the cellphone warrant case to urge the Court to overrule the Fourth Amendment approach taken by the Court in Smith v. Maryland, 442 U. S. 735 (1979), and United States v. Miller, 425 U. S. 435 (1976). In Byrd v. United States, Justice Gorsuch joined a concurring opinion of Justice Thomas expressing “serious doubts about the ‘reasonable expectation of privacy’ test” from Katz v. United States, 389 U. S. 347, 360–361 (1967) (Harlan, J., concurring), which has been the touchstone of Fourth Amendment search-and-seizure cases for generations.

In Sveen v. Melin, Justice Gorsuch dissented alone in a Contracts Clause case in which he questioned whether modern Contracts Clause cases, such as Energy Reserves Group, Inc. v. Kansas Power & Light Co., 459 U. S. 400 (1983), were properly decided. In Jesner v. Arab Bank PLC, Justice Gorsuch wrote separately in an Alien Tort Statute case to state that he harbored “serious doubts” about the “suggestion” in Sosa v. Alvarez-Machain, 542 U. S. 692 (2004), that courts could create new causes of action under the statute, which is as old as the Supreme Court itself.

While Judge Gorsuch told Congress during his confirmation that “precedent is the anchor of the law,” Justice Gorsuch had no problem immediately unmooring precedents dating back over 50 years in a wide swath of law, including the Fourth Amendment, Commerce Clause, Contracts Clause, labor law, administrative law, and international law. And this was just his first year on the Court.

In evaluating Judge Kavanaugh, Congress shouldn’t be satisfied with empty platitudes about respect for precedent. Instead, it should take its cues from The Who, who warned us over 45 years ago: “We Won’t Get Fooled Again.”

(Additional disclosure: our firm represented Wayfair and the other respondents in South Dakota v. Wayfair, Inc., although I did not personally work on that case.)

A Legal Victory for Cities Working to Advance Equity

Amid rising conflicts with states over the ability of cities to experiment with policies that advance equity and inclusion—conflicts that have spurred a wave of litigation—the occasional individual decision stands out and last week brought us just such an opinion. On July 25, a three-judge panel of the Eleventh Circuit in the case of Lewis v. Governor of Alabama handed down an important and welcome decision reversing the dismissal of Fourteenth Amendment Equal Protection claims arising from the State of Alabama’s preemption of Birmingham’s minimum wage ordinance.

As the Eleventh Circuit noted, Birmingham has Alabama’s highest percentage of residents living in poverty (30%) and is at the same time home to the state’s largest black population (72%).  To address the unique challenges facing city residents, the Birmingham City Council in August 2015 enacted an ordinance raising minimum wages in the city to $8.50 in 2016 and then to $10.10 in 2017. In response, a white state representative from an overwhelming white district outside of Birmingham introduced legislation to block Birmingham’s ordinance, eventually gaining fifty-two co-sponsors, all white.  Birmingham moved to accelerate the phase in of the full minimum wage increase, and on February 25, 2016, the Alabama legislature responded—with not a single black member voting in favor in either the House or the Senate—by enacting the Minimum Wage Act, codified at Alabama Code §§ 25-7-40 et seq., rending Birmingham’s legislation null and void.

Several individuals, as well as the NAACP, Greater Birmingham Ministries, and the Alabama Black Legislative Caucus, filed suit to challenge this preemption as racially discriminatory, raising federal constitutional claims under the Thirteenth, Fourteenth, and Fifteenth Amendments, as well as a claim under § 2 of the Voting Rights Act. Ruling on a Rule 12(b)(6) motion, Judge Proctor in the Northern District of Alabama dismissed these claims in a sweeping opinion that emphasized the state’s supremacy over its local governments, ruling on grounds of lack of standing, state sovereign immunity, and failure by the plaintiffs to state claims.

The Eleventh Circuit took a decidedly different view of the pleadings. As to standing, the court had “little trouble concluding” that plaintiffs had alleged sufficiently concrete injury, traceable to the Minimum Wage Act, given the immediate loss in wages the individual plaintiffs had suffered by the state’s preemption (and the resources the plaintiff organizations had devoted to responding to this harm to their missions of improving the “social, economic, and political position of Alabama’s black citizens,” as the court described it). The court also noted the long-standing rule that suits for injunctive relief alleging federal constitutional violations by state officials in their official capacity do not trigger the Eleventh Amendment and that the Voting Rights Act abrogated state sovereign immunity.

On the merits, the court agreed that the plaintiffs had failed to plead a plausible political-process claim in light of the Supreme Court’s retrenchment on that line of precedent and that the loss of political power Birmingham suffered as a result of Alabama’s preemption was not cognizable under the Fifteenth Amendment and § 2 of the Voting Rights Act. But on the plaintiffs’ core assertion that Alabama’s Minimum Wage Act involved intentional discrimination in violation of the Fourteenth Amendment, the Eleventh Circuit rebuked the District Court for erroneously applying a standard that demanded “clearest proof,” even at the motion to dismiss stage.

As the court argued,

Requiring the “clearest proof” of discriminatory purpose not only ignores the history of equal protection law but also turns a blind eye to the realities of modern discrimination. Today, racism is no longer pledged from the portico of the capitol or exclaimed from the floor of the constitutional convention; it hides, abashed, cloaked beneath ostensibly neutral laws and legitimate bases, steering government power toward no less invidious ends. Recognizing this truth over forty years ago, the Supreme Court mandated that we review both direct and circumstantial evidence to determine whether, absent an outright admission, some discriminatory purpose may yet exist; and it planted signposts to help guide this inquiry.

(Citations omitted.)

Applying ordinary pleading standards to those signposts, then, the Eleventh Circuit highlighted the plaintiffs’ detailed factual allegations regarding “the disproportionate effect of the Minimum Wage Act on Birmingham’s poorest black residents; the rushed, reactionary, and racially polarized nature of the legislative process; and Alabama’s historical use of state power to deny local black majorities authority over economic decision-making.” As the court noted, “the plaintiffs put forth extensive evidence suggesting that the Minimum Wage Act reflects Alabama’s longstanding history ‘of official actions taken for invidious purposes,’” (quoting Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 267 (1977)), with efforts at least as far back as Alabama’s 1901 Constitution to undermine the ability the state’s black citizens “to achieve social and economic equality.” That impact, context, and history, the court concluded, was more than sufficient to allow the plaintiffs’ Fourteenth Amendment intentional discrimination claim to proceed.

Lewis, of course, only reflects the plaintiffs’ claims, however well supported they might be, the Eleventh Circuit’s decision but is significant nonetheless for taking seriously constitutional harms that can flow from discriminatory use of state authority over local governments.  As the Partnership for Working Families has ably documented, state preemptive legislation too often involves predominantly white legislatures nullifying local ordinances that seek to support equity and inclusion, especially on questions of economic justice. Lewis thus represents an important step in recognizing these dynamics—and other local governments facing similar invidious state overreach are no doubt paying attention.

Is Trump Profiting From His Office In Violation of the Constitution? Judge Allows Emoluments Case To Move Ahead

This piece was originally posted by The Conversation

Donald Trump has repeatedly been accused of financially profiting from being president of the United States.

Significantly, on July 25, a U.S. district judge for the District of Maryland rejected Trump’s effort to dismiss a case alleging that he accepted payments in violation of the international “emolument clause” as well as the domestic “emolument clause” of the U.S. Constitution. The foreign clause specifically says that “no Person holding any Office of Profit or Trust under … [the United States] shall, without the consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.”

The debate in this case has centered over what the president has to do to violate these clauses. Put simply, the plaintiffs allege that foreign governments, the governor of Maine and others have deliberately frequented President Trump’s hotels and other facilities to curry favor with the president.

As a longtime U.S. constitutional law professor, who has also written about democracy and corruption in nations with newly written constitutions like South Africa, I have avidly followed the emoluments case as it brings together these two academic interests.

Corruption is a serious problem in South Africa where former President Jacob Zuma was recently indicted on multiple corruption charges.

Could Trump end up on a path at all like Zuma?

A win for the plaintiffs

That outcome became more plausible when the federal district court in Maryland rejected Trump’s position that an emoluments violation occurs only if an official profits from their government position. Instead, the court agreed with the plaintiffs, the District of Columbia and the state of Maryland, that even a private benefit, advantage or profit would be unconstitutional if the monies are connected to private facilities owned by the president or his agents.

The court examined at length what the framers of the U.S. Constitution thought about the meaning of the word “emolument.” This kind of “originalist” analysis often results in judgments that favor conservatives. However, here the federal judge found that the evidence overwhelmingly favored the plaintiffs. The judge relied mainly on scholarship from English language dictionaries and treatises, covering the period 1604 to 1806, repeatedly indicating that an emolument did not contain an official benefit or profit requirement. A private benefit or profit was enough. U.S. District Judge Peter J. Messitte even quoted John Mikhail, a professor from the Georgetown University Law Center, who found that 92 percent of relevant dictionaries define the term “emolument” as the plaintiffs suggest.

The court also pointed out how the text of the foreign emolument provision in the Constitution refers to “any kind whatever,” which favors the plaintiff’s broad interpretation.

And, the court explained that the president’s position would essentially mean that the only prohibited emoluments would be attempts at governmental bribery. The court elaborated that it is the Constitution’s impeachment provisions that are meant to deal with issues like bribery. This leaves the emolument provisions to deal with other forms of corruption.

In addition, the court highlighted plaintiffs’ allegations that after the governor of Maine stayed at the president’s hotel,

“Gov. LePage and the President appeared together at a news conference at which the President signed an executive order to review actions of the prior administration that established national monuments within the National Park Service, which could apply to a park and national monument in Maine, which President Obama had established over Governor LePage’s objections in 2016.”

The hotel where LePage stayed is the relatively new Trump hotel in the Old Post Office Building owned by the General Services Administration (GSA). The property lease prohibits elected officials, presumably like a President, from holding any share of the lease. The Court relied on the allegations about the GSA lease to support allowing the case to proceed.

The court elaborates:

“Sole or substantial ownership of a business that receives hundreds of thousands or millions of dollars a year in revenue from one of its hotel properties where foreign and domestic governments are known to stay (often with the express purpose of cultivating the President’s good graces) most definitely raises the potential for undue influence and would be well within the contemplation of the Clauses.”

The bottom line: After giving a detailed airing to the arguments in favor of the Trump position on emoluments, this federal judge found the theory of the plaintiffs to be correct based on text, views at the time of the Constitution’s framing, purpose, and pragmatic considerations about how the political world really works.

When combined with the Mueller investigation allegations into the Trump campaign’s apparent dealings with the Russians, and assertions about candidate Trump’s supposed knowledge of payoffs to mistresses, this ruling provides another arrow in the bow of those who assert that his presidency is rife with unethical conduct. The U.S. Department of Justice, however, seems likely to seek an emergency stay of the July 25 decision, to appeal the matter and to prevent the plaintiffs from seeking the discovery of documents.

It will be interesting to see if this initial decision holds up – or merely becomes a footnote to the Trump presidency. Judge Messitte’s ruling, however, is certainly a powerful document that appears to be written in a manner anticipating that a higher court will carefully review his conclusions on an appeal. And if plaintiffs ultimately prevail, it could provide fodder for impeachment proceedings.

Death by One Thousand Cuts: How the Trump Administration Is Using Rulemaking to Kill the Endangered Species Act

The Endangered Species Act (ESA) has been remarkably successful in preventing the extinction of species. Only one percent of the more than 1,800 species listed in the United States as endangered or threatened have been declared extinct after receiving the protections of the Act and many species are on the path to recovery. But despite significant efforts to prevent extinction, the loss of biodiversity, driven largely by habitat degradation and destruction, remains a rapidly growing crisis. Indeed, with climate change exacerbating biodiversity loss, scientists estimate that by 2050, 10 percent of all terrestrial species will be “committed to extinction.”

If we are to avert what scientists call the “Sixth Extinction” we should strengthen the laws and policies, like the ESA, that protect imperiled species and their habitat. But the Trump administration is proposing just the opposite. In three separate notices totaling more than 100 pages, the administration is proposing fundamental changes to the way the ESA is implemented.

Remarkably, not one of these proposals would improve species conservation. Instead, their “reforms” would undermine policies affecting the listing and delisting of species, the designation of critical habitat, the protections afforded threatened species, and the scope of consultations to avoid jeopardizing species and their habitats.

Most concerning, the proposal would open the door to consideration of economic issues in listing species. Whether a species is endangered or threatened is a scientific question not an economic one. The ESA is a flexible law and it allows for consideration of costs in designating critical habitat and developing recovery plans, but economics should play no role in determining a species’ biological status. Injecting cost considerations in the listing process could sap agency resources, make listing decisions more contentious, and delay protections for species that need them.

The administration is also proposing to eliminate a longstanding rule that automatically applied the same protections to threatened species as endangered species, unless the Fish and Wildlife Service develops a species-specific rule under Section 4(d) of the Act. Eliminating this “blanket 4(d) rule” changes the default from full protection to no protection. With limited funding and constant political pressure not to regulate, the Service will have a harder time ensuring the conservation of threatened species.

When Congress passed the ESA it was acutely aware that stemming the loss of biodiversity required more than protecting individual animals and plants: it also required protecting habitat from destruction or adverse modification. Of the many threats to America’s wildlife heritage, Congress recognized that the “most significant has proven also to be the most difficult to control: the destruction of critical habitat.” H.R. Rep. No. 93-412, at 4 (1973). Nonetheless, the Trump administration is proposing a number of changes to the Act’s critical habitat provisions – none of them good.

One change would require that destruction or adverse modification of critical habitat be considered “as a whole.” Critical habitat is already defined as the areas “essential to the conservation of the species.” If that is the case, loss of any portion could impact the species’ recovery. In practice, the Service often approves alterations to designated critical habitat, but this regulation would explicitly authorize the piecemeal destruction of essential habitat leading to “death by one thousand cuts.”

The regulation would also make it more difficult to designate unoccupied critical habitat, areas where the species does not currently reside but which scientists believe are nonetheless essential to the conservation of the species. These could include intact areas of historic habitat, degraded habitats that are capable of restoration, or other areas that provide important benefits to the species. The proposal – which takes aim at the designation of unoccupied habitat for the dusky gopher frog (which the Supreme Court will consider in October) – would do nothing to conserve species and could in fact confine numerous species, like the frog, that lack sufficient occupied habitat to extinction.

In today’s polarized political environment, it’s hard to imagine we once had a national consensus on environmental protection. The ESA passed the Senate 92-0 and the House 355-4. It was signed into law by Richard Nixon, a Republican president who said, “Nothing is more priceless and more worthy of preservation than the rich array of animal life with which our country has been blessed.” The Clean Water Act, the Clean Air Act, and the National Environmental Policy Act were all approved by wide margins.

But President Trump is no Nixon. This administration has targeted the EPA, our public lands, and our coasts at the behest of special interests. Now they are setting their sights on the Endangered Species Act. The Trump administration’s “reforms” undermine America’s sacred commitment to preserving its biodiversity heritage.