Saturday, November 18, 2017

Impeaching Trump: Here's the Beef

      Donald Trump marked a historic milestone this week when he became the first president to be confronted with a resolution calling for his impeachment and removal from office within his first year in the White House.
      The 25-page resolution  introduced on Wednesday [Nov. 15] by six Democratic members of the House of Representatives lays out five articles of impeachment that recite familiar stories relying for the most part on undisputed facts. Trump is charged with obstructing justice — most specifically, by firing FBI director James Comey to try to thwart the Russia investigation. He is also accused of violating the Constitution's foreign and domestic emoluments clauses and with undermining the independence of the judiciary and the freedom of the press.
      As to each of the counts, the resolution lays out a strong case that the president, quoting now, "has undermined the integrity of his office, brought disrepute on the Presidency, and betrayed his trust as President in a manner subversive of constitutional government, to the great prejudice of the cause of law and justice and to the manifest injury of the people of the United States." With the issues so familiar, the resolution's sponsors rightly view impeachment as the only means for ending what the lead sponsor, Tennessee's Steve Cohen, in a press release calls Trump's "reckless and harmful behavior" in office.
      By historical standards, the resolution is as dense and detailed as the only successful impeachment resolution to date: the three articles adopted with bipartisan support by the House Judiciary Committee on July 27, 1974. The committee's action, combined with the Supreme Court's decision in the Watergate tapes case, forced Richard M. Nixon to resign the presidency within a matter of days to avoid all-but-certain conviction and removal.
      By contrast, the Trump impeachment resolution is far more detailed than the impeachment measures brought, unsuccessfully, against Andrew Johnson in 1868 and Bill Clinton in 1998. The Senate fell one vote short of the two-thirds majority needed to convict Johnson on charges of violating the Tenure in Office Act by removing Edwin Stanton as secretary of war. The Senate fell short of a simple majority on the two counts against Clinton: 45-55 on perjury for lying to a federal grand jury and 50-50 on the related obstruction of justice count.
      Impeachment is a powerful weapon, so it is probably good that it has been wielded against the president infrequently and successfully only in Nixon's case. History has long approved of Johnson's acquittal: his removal for firing a member of his own cabinet would have gutted the president's authority over the executive branch. Decades from now, history is also likely to judge that the Clinton impeachment was more a partisan power grab than a principled effort to punish presidential misconduct.
      Six other presidents have been the targets of impeachment resolutions, according to a detailed report by the Congressional Research Service. John Tyler became the first impeachment target, two years into his presidency in 1843, for exercising the president's constitutional power to veto a bill passed by Congress; the House rejected the resolution. None of the others was brought to the House floor.
      Three presidents faced possible impeachment on their way out of the White House. Grover Cleveland faced a miscellany of politically charged accusations in an unsuccessful resolution introduced in the final year of his second term. Herbert Hoover similarly faced a mishmash of politically motivated accusations in December 1932 after he had been defeated for re-election. In a more recent instance, Harry Truman faced impeachment in his final year in office for seizing the shut down steel mills to keep them operating during the Korean War.
      Two presidents, Ronald Reagan and George H.W. Bush, were accused in unsuccessful impeachment resolutions of exceeding presidential powers by launching overseas wars: Reagan's invasion of Grenada in 1983 and Bush's Desert Storm war in Kuwait in 1991. Reagan also survived a second-term impeachment attempt over the Iran-contra affair.
      Those efforts, just like the one against Trump, arose from partisan disagreements whatever their underlying substance. In Trump's case, the accusations stand of their own weight despite their partisan motivations; the president and his supporters have little by way of defense except to rely on immunity supposedly created by winning election.
      Trump himself admitted, belatedly, that he fired Comey to thwart the Russia investigation. That may not be obstruction for criminal law purposes, but qualifies in an impeachment trial. He has clearly violated the Foreign Emoluments Clause from the patronage of foreign governments at Trump properties, including the Trump Hotel in Washington, and from regulatory benefits extended to Trump businesses in many countries — China, most recently. As for the Domestic Emoluments Clause, the White House itself is paying Trump properties for all the days that the president has spent at Mar-a-Lago, among others.
      Trump is accused of undermining the independence of the judiciary and the rule of law by his race-based campaign-time criticism of the federal judge overseeing the civil suit against Trump University, his White House criticism of the judges handling the Muslim travel ban cases, and his pardoning of Arizona's contempt-of-court sheriff Joe Arpaio.
      As for freedom of the press, Trump commended a literal "beat the press" policy to his supporters during the campaign and has kept up his "Fake News" drumbeat in the White House. The specifics cited make clear that Trump's efforts to undermine the press go far beyond the ordinary, to-be-expected adversary relationship between the White House and the press.

Sunday, November 12, 2017

Impeaching Trump? Nailing Jello to the Wall

      President Trump has quite possibly committed what the Framers of the Constitution would have considered an impeachable offense. That is the takeaway from an hour-long, ostensibly nonpartisan presentation by a leading expert on impeachment at the National Constitution Center last week [Nov. 6].
      Cass Sunstein, a Harvard Law School professor and author of the just published title Impeachment: A Citizen's Guide (Harvard University Press), pointed most specifically to the investigation by special counsel Robert Mueller of the Trump campaign's possible collaboration with Russia during the 2016 campaign. In Sunstein's recounting, the Framers worried at the Constitutional Convention about the possibility that the president might attain office through some corrupt means.
      The possibility of enlisting a foreign adversary to gain the White House? "That's worse," Sunstein told his interviewer, Jeffrey Rosen, the center's president and a law professor at George Washington University. To avoid the partisan pitfall, Sunstein, a former Obama administration official, elaborated not by referring to Trump but by re-hypothesizing a collaboration between a Democratic candidate and a different foreign adversary, China.
      With each passing day, it becomes more evident that the Trump campaign behaved as though it had been corrupted by Russian agents, but the evidence of active "collusion" is fragmentary and disputed. Son-in-law Jared Kushner's meeting in June 2016 with a Russian lawyer who promised dirt on Trump's Democratic opponent Hillary Clinton would seem to be a smoking gun but for Kushner's insistence that nothing came of it.
      Trump himself has repeatedly denied any collusion with the Russians and belittled the accusations and the accusers. He went even further over the lines of normal respectability this weekend [Nov. 11] by telling reporters after a meeting with the Russian president Vladimir Putin that he credits Putin's denials of meddling over the formal assessment to the contrary by the U.S. intelligence community. Adding gratuitous insult to traitorous injury, he dismissed the former CIA director John Brennan, the former director of national intelligence James Clapper, and fired FBI director James Comey as "political hacks."
      Trump's own CIA director, Michael Pompeo, responded with a statement reaffirming his belief in the January 2017 assessment. "The intelligence assessment with regard to Russian election meddling has not changed," Pompeo said blandly. Sen. Ben Cardin, a Maryland Democrat and member of the Senate Intelligence Committee, called Trump's statements "outrageous." From a different perspective, Bill Kristol, a "Never Trump" conservative columnist, called Trump's statements an effort to "help lay the groundwork for ending" the Russia investigation.
      The focus on the Russia investigation is understandable, but it partakes to some extent of what Sunstein described as the error in treating impeachment in legal instead of political terms. The Framers adopted the phrasing "high crimes and misdemeanors" as a term well understood in the 18th century to denote misconduct in public office. At the Constitutional Convention, James Madison called impeachment a remedy "against the incapacity, negligence, or perfidy of the chief Magistrate." In Federalist No. 65, Alexander Hamilton called impeachment a "political" action to be taken against an official for "the abuse or violation of some public trust."
      Thus, as Sunstein put it, some presidential crimes may not be impeachable offenses —  for example, jaywalking or tax fraud —  and some impeachable offenses may not be crimes at all. Trump's firing of Comey might have been "fine" in a general context, Sunstein said, but arguably an impeachable offense if the aim was to "prevent an investigation of horrible things." That would be true, Sunstein added. even if it did not amount to obstruction of justice. "I wouldn't make a fetish of the term," he said.
      In like vein, several legal commentators have cautioned against overemphasizing "collusion" as the object of the Russia investigation — a term, they note, with no special legal significance. "There is a range of different kinds of collusion," says Ilya Somin, a constitutional law professor at George Mason University's Antonin Scalia Law School, "and a range of degrees of collusion." In any event, Somin adds, "we simply don't have enough evidence yet to know."
      The liberal billionaire Ton Steyer, who claims to have 2 million signatures for his petition to impeach Trump, has a scatter-shot bill of particulars against Trump that goes beyond the Russia issue. He accuses Trump of exploiting the presidency "for his personal gain" and treating the government "like a family enterprise." Those accusations seem to channel Madison and Hamilton, but others go somewhat afield into policy disagreements on issues ranging from immigration and health care to climate change and North Korea. 
      The conventional wisdom, ever since John F. Kennedy celebrated President Andrew Johnson's acquittal in his book Profiles in Courage, has argued against Congress impeaching the president over policy disagreements. On health care, however, Steyer aptly calls Trump's "sabotage" of the Affordable Care Act a failure to execute the law. Articles of impeachment could cite Trump's careless attitude toward the Take Care Clause in other contexts. Steyer cites Trump's "conduct during Charlottesville." Somin points to Trump's campaign and post-election "encouragement of violence" and, more generally, his "breach of constitutional norms."
      The case for Trump's impeachment, in short, is substantial even if a political impossibility as long as Republicans cling to their historically unpopular president. The case for impeaching Trump for "high crimes and misdemeanors" is long and strong, but is akin to nailing Jello to a wall. There is a lot there, but it's very hard to make it stick.
      More on the topic next week.

Sunday, November 5, 2017

From Death Row, a Plea on 'Ineffective Assistance'

      Carlos Ayestas has spent almost 20 years on death row in Texas, sentenced by a jury that heard none of the evidence that might have spared him the death penalty. Ayestas was convicted along with two others of strangling an elderly woman during a home invasion in a cut-and-dried, two-day guilt phase trial. The subsequent capital sentencing hearing — required under Supreme Court precedents — was even shorter, woefully deficient even by Texas's low standards.
      Two decades later, Ayestas is before the U.S. Supreme Court, seeking funds that his current lawyers say are needed to show his previous attorneys violated his Sixth Amendment rights by providing "ineffective assistance" at trial and in a subsequent state habeas corpus proceeding. Those lawyers all but completely ignored evidence of possible mental illness and head traumas suffered by the Honduran immigrant as a youngster — information that jurors might have found to be "mitigating circumstances" weighing against imposition of a death sentence.
      The arguments in Ayestas v. Davis last week [Oct. 30] illustrate the importance of the court's continuing role in policing what the late justice Harry A. Blackmun famously referred to near the end of his career as "the machinery of death." The Roberts Court seems unlikely to declare capital punishment flatly unconstitutional under the Eighth Amendment and has repeatedly refused to find the current three-drug lethal injection protocol unconstitutionally "cruel or unusual." Year after year, however, the court throws out death sentences or capital murder convictions based on narrower constitutional violations.
      Many of those cases come from Texas, far and away the leading state in executions since the Supreme Court's decision in 1976 allowing the resumption of capital punishment. Just last term, the court told the state to update its definition of intellectual disability used to determine eligibility for the death penalty (Moore v. Texas) and threw out a black inmate's death sentence because of sentencing-hearing testimony linking future dangerousness to race (Buck v. Davis).
      Ayestas's case presents an even starker illustration of the low standards that the Lone Star State sets for justice in capital cases. To appreciate the extent of the injustice to Ayestas, death penalty cases need to be understood today as focusing less on guilt or innocence than on aggravating or mitigating circumstances as presented by opposing lawyers in the post-verdict sentencing hearing. A properly staffed capital defense team today includes not just lawyers and a Paul Drake-type investigator, but also a "mitigation specialist" with a combination of investigative and interviewing skills needed to ferret out details of a defendant's social history to use as mitigating circumstances in the capital sentencing phase.
      Ayestas's two defense lawyers learned just before his 1997 trial that the twenty-something immigrant had suffered repeated head traumas as a youngster and presented some symptoms of mental illness. In their two-minute presentation of mitigating evidence, however, they introduced nothing more than three letters from a teacher at the Harris County jail that Ayestas was a "serious and attentive" student in her English as a second language class and was making good progress.
      With his conviction and sentence affirmed on appeal, Ayestas was given a new lawyer to challenge the conviction through a state habeas corpus proceeding. That lawyer also failed to investigate Ayestas's medical and mental health issues, much less challenge the trial lawyers as "ineffective" for having failed to do so. He argued only that Ayestas's trial lawyers were deficient for failing to get his family from Honduras to the trial to testify in his behalf. State courts again upheld the conviction and sentence.
      A decade later, a new legal team filed a federal habeas corpus petition for Ayestas that, for the first time, claimed ineffective assistance of counsel based on the failure to investigate the mental illness and medical issues. By this time, a prison psychiatrist had also formally diagnosed Ayestas with schizophrenia  a condition likely to have been diagnosable earlier. The federal district court judge who heard the case, however, dismissed Ayestas's petition as procedurally defaulted because he had not raised the ineffective assistance claim earlier.
      A pair of Supreme Court decisions effectively required the district court to reconsider the issue, but the judge again rebuffed Ayestas's plea. Ayestas also asked for funds, as provided by a federal law, to investigate and present the claim. The Criminal Justice Act provision guarantees death row inmates the funds "reasonably necessary" to present post-conviction challenges in federal habeas corpus proceedings.
      The Fifth U.S. Circuit Court of Appeals, the federal court with jurisdiction over Texas, has adopted a unique interpretation of that provision to require funds for federal habeas corpus cases only if the inmate demonstrates "a substantial need" for the money. No other federal circuit has put this gloss on the seemingly straightforward phrasing from the statute itself.
      In Ayestas's case, a panel of three Republican-appointed judges upheld the judge's decision. "The district court did not abuse its discretion when it declined to authorize a mitigation specialist for Ayestas before it determined the viability of Ayestas’s claim," the court wrote in an unsigned opinion.
      At the Supreme Court, University of Maryland law professor Lee Kovarsky argued in Ayestas's behalf that the Fifth Circuit's rule, in effect, allowed the court improperly to "guess" what a properly funded investigation would show. Liberal justices evidently sympathized, while conservatives fretted about issues of jurisdiction and judicial administration. Troublingly for Ayestas's chances, Justice Anthony M. Kennedy sat silently and expressionlessly throughout the hour. "Without Kennedy asking any questions," Kovarsky remarked afterward, "it's really hard to know where you stand."

Sunday, October 29, 2017

Teen Immigrant Abused by Anti-Abortion Policy

      The teenaged girl known in court papers as Jane Doe crossed the U.S.-Mexico border into Texas in early September, fleeing an abusive family in her native land in Central America. But Jane escaped one abusive situation only to be abused again, this time by the U.S. government, intent on forcing her to carry an unwanted pregnancy to term despite her constitutional right in the United States to an abortion if she satisfied certain legal standards.
      Apprehended near the border city of Brownsville after her illegal crossing, Jane was held in a federally funded shelter used to detain illegal immigrants. As a would-be refugee, her case fell within the jurisdiction of the Office of Refugee Resettlement (ORR), a unit within the federal Department of Health and Human Services (HHS).
      Scott Lloyd, the Trump-appointed head of the office, brings to the position no training in health or human services but years of experience as an anti-abortion zealot with the Knights of Columbus, the Catholic charitable and humanitarian organization, and a lawyer for a "crisis pregnancy center" in Fort Royal, Va. Lloyd has eagerly taken to enforcing the policy adopted in May that prohibits immigration detention shelters from taking "any action that facilitates an abortion without direction and approval" from him as ORR director.
      Supreme Court decisions extending from Roe v. Wade in 1973 to Whole Women's Health Center in 2015 protect a woman's right to choose an abortion before fetal viability and prohibit the government from imposing any "undue burden" on the woman's exercise of that right. Lock-and-key for a woman held in detention is more than a burden but tantamount to a prohibition.
      Jane's story ends happily for her with a lopsided federal appeals court ruling [Oct. 24] that ordered the government to stop blocking her from going to a medical clinic for the abortion that she had chosen to undergo and to which she had a constitutional right. Jane underwent the procedure the next day as the government. The 6-3 decision by the U.S. Court of Appeals for the District of Columbia Circuit in Garza v. Hargan reversed the earlier, divided ruling by a three-judge panel that had allowed the government to continue to block the abortion even as the risks of the procedure increased with each passing day.
      Jane underwent the procedure the day after the D.C. Circuit's en banc decision and, in a later interview with VICE News, reaffirmed that she felt incapable at age 17 of caring for a child. "I don't feel sure of having a child," she told interviewer Antonia Hylton with her back to the camera and her name still withheld.
      The Trump administration policy directive asserts a government interest in protecting human life, but the government's overriding interest seemingly should be enforcing the law of the land — abortion rights — whatever the political views of what the British like to call "the government of the day." Lloyd's anti-abortion views are a matter of public record, as BuzzFeed News unearthed in a story published as the controversy swirled.
      Writing for the Christian website Ethika Politika in 2011, Lloyd urged state legislators to enact laws requiring a woman to notify the putative father of her decision to abort and to obtain his consent even though Supreme Court decisions clearly prohibit any veto power for a man over the woman's decision. Later, Lloyd recommended that women obtaining government-funded birth control sign a contract promising not to undergo an abortion if the contraceptive failed.
      Lloyd's work with Knights of Columbus entailed advocacy for protecting religious and ethnic minorities victimized by ISIS, the self-styled Islamic State. That experience left him completely insensitive, it appears, to Jane's plight, as a pregnant teenager who had witnessed her parents beat her older sister after having discovered her pregnancy.
      Jane arrived in the United States as "a child . . . alone in a foreign land," as Judge Patricia Millett explained in what amounted to the majority opinion for the six Democratic-appointed judges in the D.C. Circuit majority. Lloyd's version of helping her consisted of allowing her to be taken not to a clinic but to a so-called crisis pregnancy center, where a counselor tried to dissuade her from the planned abortion. "They took me to the clinic," Jane told her interviewer, "and they prayed for me."
      Significantly, Jane's legal team from the American Civil Liberties Union (ACLU) had already convinced a state court judge in Texas that she was mature enough to make the decision to undergo the abortion. The Justice Department attorneys representing HHS in the case stopped short of arguing that Jane had no constitutional right to abortion, merely that the government did not have to "facilitate" the procedure. Millett aptly accused the government of "verbal alchemy" by attempting to "categorically blockade" the abortion.
      Writing for the three Republican-appointed dissenters, Judge Brett Kavanaugh said the decision amounted to "a radical expansion of the Supreme Court's abortion jurisprudence." Separately, Judge Karen Lecroft Henderson argued in a sole dissent that Jane in fact had no constitutional right to abortion since, technically, she had never "entered" the United States. That issue remains open since Jane's case was litigated, under tight deadlines, solely as an individual case. The ACLU lawyers are pursuing a broader class action aimed at invalidating the refugee office's "no facilitating" directive en toto.

Sunday, October 22, 2017

Trump's Lawyer a Poor Fit for Federal Bench

      President Trump has been neck-deep in a swamp of legal troubles, some political and others quite personal, from the very first days of his presidency and even before. Since entering the White House, he and his staff have relied to some extent on legal advice from Gregory Katsas, an experienced Washington attorney chosen by Trump as deputy counsel to the president.
      Trump has now nominated Katsas to a lifetime federal judgeship: a seat on the United States Court of Appeals for the District of Columbia Circuit, often referred to as the country's second most important federal court. On paper, Katsas is eminently qualified for the bench, as seen in the questionnaire he filed with the Senate Judiciary Committee. Katsas has two Ivy League degrees, Princeton and Harvard Law School; three judicial clerkships, including one term with Supreme Court Justice Clarence Thomas; eight years in ranking positions in the Justice Department; and nearly two decades with a prominent Washington law firm.
      Among all these accomplishments, however, Katsas's most important qualification for Trump's consideration may have been his three decades of active and prominent membership in the Federalist Society. The conservative-libertarian organization has been both the feeder and the screener for Trump's judicial nominees, including the eventual Supreme Court justice Neil Gorsuch.
      Republican senators heaped praise on Katsas during his two-hour hearing before the Senate Judiciary Committee last week [Oct. 17], but Democrats pressed him hard on his ability to be independent of the White House if confirmed. Katsas's assurances on the point left the committee's ranking Democrat, California's Dianne Feinstein, plainly unconvinced.
      Trump has behaved with legal recklessness from his very first week in office — most notably, in issuing as an executive order a travel ban so blatantly anti-Muslim that federal courts had no choice but to strike it down, now even its third iteration. Katsas listed the travel ban as one of many issues on which he had advised the president and the White House staff.
      The sins of the client are  not necessarily sins of the lawyer, but the travel ban was poorly lawyered, to say the least. The executive order was "badly drafted, badly executed, and badly defended," as Jonathan Turley a George Washington University law professor, remarked at a Supreme Court preview program in September. Nothing has been reported from this very leaky White House to suggest that Katsas voiced any doubts about the ban or counseled against it in any way.
      Katsas listed the travel ban as one of several of Trump's controversial policy moves on which he had advised as deputy counsel. He also acknowledged working on the Emoluments Clause litigation and more specifically pledged to recuse himself if the case eventually came before him.
      Judicial appointments entail some inevitable risks of future recusal — as seen, for example, in Justice Elena Kagan's recurrent need in her first years on the bench to step out of cases that she had helped oversee while serving as U.S. solicitor general. Given his White House role, Katsas would face recusal issues more frequently — arguably, in any of the slew of cases likely to reach the D.C. Circuit challenging Trump administration policy initiatives by executive branch agencies.
      Presidents typically do not nominate White House lawyers for federal judgeships, as the Washington Post noted, "because of questions inevitably raised about the nominee's legal advice." President George W. Bush's nomination of his White House aide Brett M. Kavanaugh to the D.C. Circuit stalled for three years before finally winning Senate approval in May 2006 on a 57-36 vote.
      Trump's utter disregard for administrative law and order casts a darker cloud over Katsas even if, by all accounts, he has a good reputation for honesty and integrity. By way of historical analogy, it seems unimaginable that President Richard M. Nixon, in the midst of the Watergate scandal, could possibly have installed one of his lawyers onto the federal bench. The Senate's then Democratic majority would have rejected the nomination without a second thought.
      Unfortunately, the Senate's current 52-vote Republican majority has shown no hesitation whatsoever in confirming a succession of dubiously qualified, doctrinaire conservative Trump nominees to the federal bench. Katsas will be confirmed, just like those others, unless at least three Republicans are moved by constitutional conscience or, improbably, political calculation to stand up for an independent and politically respectable federal judiciary.
      Katsas was also questioned in regard to his eight years at the Justice Department under President George W. Bush. The Bush administration was also frequently in hot water legally on matters before Katsas in his oversight of the civil division. He acknowledged defending the ultimately unsuccessful effort to block Guantánamo prisoners from any judicial review of their detention, but he claimed credit for faithfully complying with the eventual Supreme Court's decision protecting the prisoners' right to federal habeas corpus.
      If confirmed, Katsas would succeed the hard-line libertarian-conservative judge Janice Rogers Brown, who was reported in early July to be planning to retire after 12 years on the bench. With Brown's retirement, the court's active judges include seven Democratic appointees and three Republican appointees.
      Katsas was asked about his interest in the seat on July 7, according to his account, and five days later agreed to a request by his boss, White House counsel Don McGahn, to undergo a background check. He passed, according to the Trump White House standards, but his work in two legally suspect presidential administrations cries out for the Senate to say no.

Sunday, October 15, 2017

A Free Pass for Corporations in Human Rights Suits?

      Seven years after giving corporations a First Amendment right to unlimited spending in election campaigns, the Roberts Court appears ready to give corporations a free pass for serious human rights violations committed abroad. That result was the consensus prediction following arguments last week [Oct. 11] in a case seeking to force the Jordan-based Arab Bank to pay millions of dollars in damages to victims of violent attacks in Israel and the West Bank for helping to finance the militant Palestinian group Hamas.
      The plaintiffs in Jesner v. Arab Bank, PLC are relying on a 225-year-old federal law granting federal courts the power to hear damage suits for violations of international law. Congress included what is now called the Alien Tort Statute as a single sentence in the Judiciary Act of 1789, the foundational statute for the federal judiciary. The provision lay mostly dormant until the 1980s, however, when human rights lawyers in the United States began using it to haul accused international human rights violators into U.S. courts to be held accountable for their conduct.
      The Supreme Court has been less than receptive to claims under the law despite its seemingly clear "plain text." Federal courts, the law states, have "original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations [emphasis added]." In a pair of recent decisions, however, the Court has moved to limit the scope of the law — its substantive content and its geographical reach — and questioned use of the law to sue corporations, not just individual defendants.
      In the present case, the New York-based Second U.S. Circuit Court of Appeals accepted arguments by Arab Bank and supporting U.S. business groups that the law does not authorize suits against corporations. Judging from the three-sided arguments at the Supreme Court, the four most conservative justices along with Anthony M. Kennedy are ready to agree despite the four liberal justices' evident doubts about the basis for any broad exemption for corporations.
      Representing the plaintiffs, Jeffrey Fisher, a Stanford law professor and director of the school's Supreme Court litigation clinic, opened by stressing what he called the "traditional presumption that corporations can be held liable in torts." He acknowledged that the court's most recent decision, Kiobel v. Royal Dutch Petroleum Co. (2013), required that the alleged misconduct have some sufficient connection to the United States for a suit to proceed in federal court.
      The suit in Kiobel that the Supreme Court rejected stemmed from environmental depredation by the Dutch company from oil drilling in the Niger River delta in Nigeria. Fisher contended that the Arab Bank's financing of Hamas met the jurisdictional test  because the bank has a U.S. branch and its transactions clear through a New York financing facility.
      Representing the bank, Paul Clement, the former U.S. solicitor general and now the go-to Supreme Court advocate for conservative causes, discounted the claimed basis for federal jurisdiction over the suit. But he argued more broadly and most strongly that there was no "norm for holding corporations liable for violations of international law" in circumstances like those alleged in the suit.
      In a split-the-difference stance, the government agreed with Clement that the Arab Bank's use of a New York clearinghouse was insufficient to establish federal jurisdiction over the case. But Brian Fletcher, an assistant U.S. solicitor general, argued that Clement's argument for a "categorical rule" exempting corporations from suits under the law was "wrong."
      Chief Justice John G. Roberts Jr. led the conservatives in questioning the suit, just as he had done earlier in the Kiobel argument. He repeatedly voiced concern about the likely "foreign entanglements" if federal courts entertained suits arising from events abroad. Fisher and Fletcher both argued for dealing with those concerns case-by-case without any categorical exemption for corporations.
      All four liberal justices echoed those doubts in questions from the bench. Justice Stephen G. Breyer aptly asked who could be held liable for financing terrorism if not a bank: only a billionaire, he suggested. Justice Elena Kagan asked the same question about use of slave labor. And Justice Sonia Sotomayor answered the conservatives' doubts by noting that "many countries" hold corporations civilly liable in tort suits.
      From the conservative side, Justice Neil Gorsuch, he of the plain-text statutory construction school, questioned whether Congress in 1789 really had corporations in mind when it passed the law. The law originated from an assault on the French ambassador, an alleged violation of the international law of diplomatic immunity. Kagan batted away Gorsuch's doubts by asking "what difference" it would have made if the ambassador's assailant had been hired by a corporation.
      The U.S. Chamber and other business groups now count this as a major issue because of the proliferation of suits against U.S.-based multinational companies — for example, against Ford and IBM for supplying cars or computers to South Africa's apartheid regime or against Wal-Mart for buying from suppliers abroad with inhumane working conditions. With the conservative justices evidently sharing that concern, Fisher noted that the number of suits has dropped since the court's decision in Kiobel.
      The Roberts Court's conservative majority has been solicitous of business interests in a variety of areas — most controversially in the 5-4 decision in Citizens United v. Federal Election Commission (2010) giving corporations a First Amendment right to engage in political spending. Against that background, a decision to give corporations a free pass for violating international law seems a flat contradiction.

Saturday, October 7, 2017

'Makeweight Excuses' on Political Gerrymandering

      Justice Felix Frankfurter fashioned a strong legal argument in 1946 when he warned his Supreme Court colleagues not to step into a "political thicket" by agreeing to adjudicate a challenge to Illinois' badly malapportioned congressional districts. Frankfurter's views prevailed in a 4-3 decision, but two decades later the Court boldly stepped into the thicket by opening federal courts to reapportionment cases and establishing "one person, one vote" as a fundamental principle of American democracy.
      History has proved Frankfurter wrong and the later Warren Court right. But two of the Roberts Court's most vocal conservatives revived Frankfurter's misplaced fears last week [Oct. 3] in trying to steer their colleagues away from taking on a new generation of redistricting challenges to political gerrymandering.
      Frankfurter stated matter-of-factly that "of course," no court could redraw Illinois' districts to bring them into conformity with "standards of fairness for a representative system." Five decades of redistricting and reapportionment cases prove that Frankfurter was wrong. But Chief Justice John G. Roberts Jr. and the Court's newest member, Justice Neil Gorsuch, threw up their hands in surrender last week rather than require that district lines be drawn to conform with standards of political fairness for a two-party system.
      Roberts and Gorsuch offered only makeweight excuses for shrinking from the Court's promise of equal justice under law. Roberts feared that the Court would expose itself to partisan criticism from whatever political party a hypothetical anti-gerrymandering decision might disadvantage.
      That ship sailed in 2000 when five Republican-appointed justices in Bush v. Gore delivered the White House to George W. Bush rather than allow an unhampered recount of the popular vote in Florida. Roberts himself has exposed the Court to partisan criticism time and time again in politically charged cases, according to a compilation by Ian Millhiser on the liberal news site Think Progress Memo.
      In two of those cases, Citizens United v. Federal Election Commission (2010) and Shelby County v. Holder (2013), Roberts helped craft new constitutional doctrines to render decisions that evidently advantaged Republicans over Democrats. Whether right or wrong, surely the Court could not have declined to decide the cases because politically treacherous.
      For his part, Gorsuch wanted to take the Supreme Court out of the issue altogether. He offered the bizarre suggestion that Congress could use its constitutional authority to police the states in drawing state legislative districts.
      Back in 1946, Frankfurter had some basis for suggesting that Congress had the institutional capacity to enforce the federal law passed three decades earlier requiring equal-population congressional districts. As a sometime critic of congressional dysfunction, however, Gorsuch surely could not have been serious in suggesting that the 435-member House of Representatives could judge the fairness of legislative districts lines every 10 years in even one state, much less all 50.
      Roberts and Gorsuch made the comments during a spirited argument in a gerrymandering case from Wisconsin, Gill v. Whitford. With full control of state government for the first time in decades, Wisconsin Republicans drew state legislative districts in 2011 in a way that enabled the GOP to win 60 percent of the seats in the next election with less than a majority of the overall state vote.
      Democratic voters served as plaintiffs in a well-crafted constitutional challenge to the districting scheme. The plaintiffs and their legal team endeavored mightily to meet the test laid down by Justice Anthony M. Kennedy in an earlier case to offer a judicially manageable standard to determine when  politically motivated district maps go beyond constitutional bounds.
      Their theory relied in part on a quantifiable measure, a so-called "efficiency gap," devised by Nicholas Stephanopolous, a law professor at the University of Chicago. The efficiency gap compares the number of "wasted votes" for each of two parties: votes cast for the party in losing races and the "excess" number of votes in winning races.
      In Wisconsin, the Republican-drawn plan left Democrats with many more wasted votes than the GOP. Plaintiffs argued that an efficiency gap above a certain threshold could be seen as constitutionally impermissible. Roberts dismissed the theory as "sociological gobbledygook," while Gorsuch suggested it had no more exactitude than his recipe for turmeric-infused barbecue sauce.
      In a post-argument commentary for the online magazine Slate, Stephanopolous explained step by step the role that the efficiency gap could play in judging partisan gerrymanders. The test, he explained, would look first and second for partisan intent and partisan effect and then use the efficiency gap as a measure of partisan asymmetry. Plaintiffs could show the asymmetry unjustified by offering simulated maps with less asymmetry.
      The four-step test may sound complicated, but it is no more complex than the formula devised for judging mixed-motive cases in job discrimination suits. As for Gorsuch's concern about imprecision, the "one person, one vote" test itself is necessarily fuzzy: precisely equal population districts are impossible. Over time, the Supreme Court figured out how much variance the Constitution allowed: some but not too much, just like the turmeric in Gorsuch's barbecue sauce.
      Judges cannot shirk hard issues because they are hard. Notwithstanding Roberts' and Gorsuch's concerns, partisan gerrymandering is surely "distasteful," as Justice Samuel Alito Jr. himself opined from the bench. And plaintiffs' attorney Paul Smith was also surely right that the Supreme Court is the only institution that can limit the practice before a likely "festival" of copycat gerrymandering after the 2020 census.