Sunday, February 24, 2019

All Eyes on Roberts as Court's Man in the Middle

       Twice within the span of two weeks, Chief Justice John G. Roberts Jr. joined this month with the Court's liberal justices in rulings over sharp dissents from his conservative colleagues on two of the Court's perennially divisive issues: abortion rights and capital punishment. In both actions, Roberts was reversing his previous positions on the issues — not necessarily because of a change of mind but because of a need to enforce the Supreme Court's precedents on recalcitrant appellate courts down in Texas.
      Roberts' decisive vote in the first of the two cases, June Medical Services v. Gee [Feb. 7], helped block Louisiana for the time being from putting into effect a law regulating abortion clinics identical to a Texas law the Court struck down three years ago. Two weeks later, Roberts sided with the liberal justices in Moore v. Texas [Feb. 19] to spare a Texas inmate from the death penalty by reenforcing the Court's previous ruling in his case two years ago.
      These previously unaccustomed lineups came as Roberts moved into a new role on the new Court created when the hard-line conservative Brett Kavanaugh took his seat in October as successor to the moderate conservative justice Anthony M. Kennedy. With Kennedy's retirement, Roberts now finds himself as the man in the middle between two well-defined ideological blocs of four moderately liberal justices and his four aggressively conservative colleagues.
      The Court's order in the Louisiana abortion clinic case came without any written opinion. The five-justice majority refused the state's request to stay the decision by the Fifth U.S. Circuit Court of Appeals to uphold the law; four justices said they would have granted the stay: Clarence Thomas, Samuel A. Alito Jr., and President Trump's two appointees, Neil M. Gorsuch and Brett Kavanaugh. With no written opinion, it was left to Court watchers, such as the former New York Times reporter Linda Greenhouse, to assume that Roberts acted to protect the Court's authority over lower tribunals. "[C]ircumstances compelled the chief justice to stand up to a stunning act of judicial defiance," Greenhouse wrote in a column on the Times' website.
      Roberts was explicit in the Texas death penalty case in bench-slapping the Texas Court of Criminal Appeals for finding Bobby Moore eligible for the death penalty despite the Court's instructions that the appeals court reconsider the issue. "On remand, the court repeated the same errors that this Court previously condemned . . . ," Roberts wrote in a concurring opinion in the 6-3 decision. Detailing the errors, Roberts added: "That did not pass muster under this Court’s analysis last time. It still doesn’t." In a dissenting opinion, however, Thomas, along with Alito and Gorsuch, complained that the majority had engaged in "factfinding" that the justices usually leave to lower courts.
      The actions gave substance to Court-watchers' speculation that Roberts may use his new position to rein in the conservative bloc's interest in establishing new conservative precedents and discarding or neutering old liberal rulings. And well he might, but Roberts' actions up to now in his 14 terms as chief justice of a majority conservative Court provide limited evidence at most of his favoring institutional stability over conservative ideology.
       Conservatives felt more than disappointed, actually betrayed, seven years ago when Roberts deserted his four conservative colleagues to craft a five-vote majority in National Federation of Independent Business v. Sebelius (2012) to uphold President Obama's Affordable Care Act. Even while upholding the law as a tax, however, Roberts backed up the four conservative justices in their opinion that rejected any authority for Congress to enact the law under its power over interstate commerce.
       Roberts' role in the Obamacare case is the exception that proves the rule. Ever since he took the reins at the start of a new term in October 2005, Roberts has been a consistent vote for leading his conservative colleagues in closely divided, precedent-bending decisions that cheered Republicans and other conservatives on issues ranging from abortion rights and civil rights to campaign finance and gun rights.
       The winds of change could be seen in Roberts's first term as soon as Sandra Day O'Connor's retirement took effect midway through the term in January 2006. With Samuel Alito as O'Connor's successor, the Court reheard arguments in a significant exclusionary rule case, Hudson v. Michigan, that found no need to suppress evidence police found in home search after an acknowledged violation of the so-called "knock and announce" rule.
       The Roberts-Alito Court — with Kennedy succeeding O'Connor as the only justice in the middle — essentially held sway for another decade until the hiatus after Justice Antonin Scalia's death in February 2016. President Obama's two appointments to the Court — Sonia Sotomayor as David Souter's successor and Elena Kagan as John Paul Stevens' successor — may have changed the dynamics among the justices but without changing the balance of power.
       By the time of those appointments, Roberts had already led the Court in a 5-4 decision that limited local school districts' power to design pupil assignment plans to promote racial balancing (Parents Involved in Community Schools v. Seattle School District No. 1, 2007). He also spoke for a 5-4 majority in a decision, Herring v. United States (2009),  that significantly changed the rationale for suppressing evidence after an illegal police search.
       In other decisions, Roberts provided a fifth vote for explicitly overturning precedents despite his professed respect for the principle of stare decisis. He supported the 5-4 decision in District of Columbia v. Heller (2008) to change Second Amendment law to recognize a personal right to possession of firearms. Two years later, he voted with the 5-4 majority in Citizens United v. Federal Election Commission (2010), to overturn two precedents in order to give corporations free rein to spend money on federal election campaigns.
      With that record in mind, two experienced Court watchers are still predicting that Roberts will turn into a judicial pussy cat at times in his newfound role. "We anticipate that the chief justice will sometimes embrace narrow minimalism in order to seek to build a bipartisan consensus," Neal Devins and Lawrence Baum said in a recent interview on SCOTUSblog. They added, nevertheless, a second prediction that Roberts "will back maximalist rulings" on issues where he has "strong legal policy preferences . . . even if those rulings divide the Court's Democrats and Republicans." As President Trump would say, less than insightfully, "we'll see what happens."

Sunday, February 17, 2019

Courts Need to Block Trump's 'End Run' on Constitution

      President Trump knew he was on shaky legal ground when he declared a national emergency in order to build his southern border wall with funds Congress appropriated for other purposes. The Justice Department warned of likely holdups from the inevitable legal challenges in the courts, but Trump went ahead confident of getting a "fair shake" at the Supreme Court with two justices owing their posts to him.
      Opponents had no difficulty in refuting the rationales that Trump claimed for declaring an emergency at the country's southern border and for claiming miles and miles of some kind of barrier as the solution to the smuggling of illegal drugs into the United States. Illegal border crossings in 2016 were 91 percent below the level in 2001, according to the Department of Homeland Security — hardly evidence of a national emergency. And, as several studies have shown, the crime rate for legal or illegal immigrants is lower than the crime rate for native-born citizens — in contradiction of Trump's demagoguery about murderers and rapists flooding into the United States across the southern border.
      In addition, more than 80 percent of the illegal drugs smuggled into the United States enter undetected through official ports of entry, not at the supposedly open southern border. Whether solid concrete or slatted steel, a border wall will have little effect on drug smugglers other than to divert funds from more productive detection and interdiction techniques.
      Tellingly, Trump himself gave the critics legal grounds for attacking his action toward the end of the rambling hour-long announcement of the move in the White House Rose Garden [Feb. 15]. "I could do the wall over a longer period of time," Trump said. "I didn't need to do this, but I'd rather do it much faster."
      Lawyers with Public Citizen included Trump's quote in the 19-page complaint they filed challenging the president's move hours later in federal district court in Washington. The suit, filed as Alvarez v. Trump in behalf of South Texas landowners and the local Audubon Society chapter, traces the history of Congress's refusal in December and again in February to approve the $5.7 billion Trump requested to construct the wall.  "[A] disagreement between the President and Congress about how to spend money does not constitute an emergency authorizing unilateral executive action," the suit states.
      Trump helped critics even more by his own actions after signing the declaration back in the Oval Office. Critics quickly noted on Twitter and elsewhere that Trump followed the declaration of a national emergency by flying to Florida for golf. Other critics took to Facebook to mark themselves "safe" during the national emergency on the southern border.
      However weak and laughable Trump's action may be, the legal challenge is by no means a slam dunk. The National Emergencies Act of 1976 establishes a procedure for the president to follow but imposes no specific requirements for a supposed national emergency. On that score, even critical observers speculated that federal courts were unlikely to second-guess the president's determination.
      The administration is more vulnerable, observers agree, in taking money that Congress has appropriated to the Defense Department for stated purposes and redirecting the funds to a purpose that Congress has specifically rejected. That would seem to run afoul of the leading Supreme Court precedent on how to resolve a clash between Congress's Article I powers and the president's Article II powers.
      The United States was at war in Korea in 1952 when the Supreme Court laid down the principle in Youngstown Sheet & Tube Co. v. Sawyer (1952) that the president has no inherent or emergency power to contradict a law enacted by Congress. President Harry Truman had ordered his secretary of Commerce to seize the nation's steel mills to keep them operating despite a strike, but the Court found he had no authority to do so after Congress had specifically refused to grant the president that power to deal with nationwide strikes.
      Justice Robert H. Jackson's famous concurring opinion in the case acknowledged what he called a "zone of twilight" of presidential authority if Congress has not addressed a particular issue. But the president's power "is at its lowest ebb," Jackson concluded, "[w]hen the president takes measures incompatible with the express or implied will of Congress."
      Trump's move also seems to run afoul of the Supreme Court's more recent decision to bar the president from exercising a so-called line item veto. The 6-3 decision in Clinton v. City of New York (1998) found that the president has no power to pencil out individual budget items from a law as passed by Congress even if Congress itself had passed a law authorizing that procedure. Trump's plan to take $6 billion from Defense Department appropriations to build the wall seems equally outside his authority.
      Trump acknowledged a likely setback at the circuit court level, but he predicted a win at the Supreme Court like the 5-4 ruling that upheld his Muslim travel ban in June 2018 after a string of defeats in lower courts. Chief Justice John Roberts's majority opinion in that case, Trump v. Hawaii, relied heavily on immigration laws with broad discretion for presidential power. Trump thinks the national emergency law vests him with equally broad power, but the New York Times pointed to Trump's fallacy with a headline that described the national emergency power as having been invoked "many times before, but never before as an end run."

Saturday, February 9, 2019

Under Trump, Democracy in Retreat

      The state of the U.S. economy may be strong in some respects, as President Trump boasted in his State of the Union address this week [Feb. 5], but two years into his presidency democracy is in retreat in the United States and around the world. Trump takes unjustified pride in the economy's continued upswing that dates from the last years of the Obama's presidency, but the nonpartisan human rights organization Freedom House puts the blame squarely on Trump for accelerating the decline in democracy in the United States and around the world.
      The United States fell on a 100-point scale to a record low score of 86 at the end of Trump's first year in office and remained stuck there at the end of 2018, according to Freedom House's annual report Freedom in the World. In all, 59 countries score higher on the Freedom House scale than the United States, including most of Western Europe, several formerly Communist-ruled countries in Eastern Europe, and such now democratic countries as Chile and Portugal that emerged from right-wing dictatorships late in the 20th century.
      The decline in U.S. democracy predates Trump's presidency, but Trump's influence is seen as especially damaging to "our core values" and to the "stability of our constitutional system," according to an overview by Freedom House's president Michael Abramowitz. "No president in living memory has shown less respect for its tenets, norms, and principles," Abramowitz writes, citing as examples Trump's attacks on separation of powers, the judiciary, and the press.
      Abramowitz, a former Washington Post reporter, traces the decline in U.S. democracy from the beginnings of the post-9/11 surveillance state under President George W. Bush and also tars the Obama administration for what he calls its "overzealous crackdown on press leaks." Trump's assaults on U.S. democracy are more numerous and more pervasive in Abramowitz's telling and date back to his presidential campaign.
      Trump has been guilty of "assailing the rule of law," in Abramowitz's account, ever since he attacked the judge overseeing the civil lawsuit against Trump University on the basis of the American-born judge's Mexican ancestry. Trump doubled down on the tactic early in his presidency by denigrating the "so-called judge" who ruled against his Muslim travel ban and more recently by criticizing the "Obama judge" who blocked the administration's illegal plan to consider asylum applicants only at official ports of entry.
      Trump's renewed attack on the impartiality of federal judges drew a rebuke last fall from the normally circumspect Republican-appointed chief justice, John Roberts. An independent judiciary, Roberts declared in a Thanksgiving week statement, "is something we all should be thankful for."
      The president's attacks on the rule of law, as enumerated by Abramowitz, go far beyond these occasional tweets against individual judicial decisions. Trump has politicized the federal government's law enforcement responsibilities by urging the Justice Department to prosecute his political opponents and critics and by expressing contempt for witnesses who cooperate in investigations in cases that threaten his interests. He has also used his pardon power to reward political and ideological allies and to encourage targets of investigations to refuse cooperation with the government.
      Trump's practice of "demonizing the press" also dates from his campaign and is now a hallmark of his presidential playbook. "Previous presidents have criticized the press, sometimes bitterly," Abramowitz acknowledges, "but none with such relentless hostility for the institution itself." Indeed, Trump's "slurs" against journalists as "enemies of the people' are now a calculated political tactic that undermines democracy by "accelerating the breakdown of public confidence in journalism as a legitimate, fact-based check on government power."
      The bill of particulars against Trump continues with his "self-dealing and conflicts of interest," in defiance of what had been strong antigraft protections. Trump "has broken with his modern predecessors," Abramowitz writes, "in flouting the ethical standards of public service." Abramowitz notes Trump's nepotism-defying hiring of daughter Ivanka and son-in-law Jared Kushner as White House aides despite their own financial conflicts of interest, but without specifically treating it not only as a political issue but as the kind of practice associated with antidemocratic authoritarian leaders through the years.
      The global decline in democracy detailed in Freedom House reports for more than a decade also dates from before Trump's presidency, but Trump has turned policies away from what had been a commitment by Republican and Democratic presidents alike to seek to promote democracy abroad. "Trump has refused to advocate for America’s democratic values, and he seems to encourage the forces that oppose them," Abramowitz writes, citing what he calls Trump's "frequent, fulsome praise for some of the world's worst dictators," Russia's Vladimir Putin among them.
      Trump cannot be blamed for the economic and political malaise that has led to declines in democracy for a thirteenth consecutive year in what the Freedom House report calls a "consistent and ominous" trend. But Trump has surely given aid and comfort to what the report calls "the antiliberal populist movements of the far right" in such backsliding countries as Hungary and most recently Brazil. "These movements damage democracies internally through their dismissive attitude toward core civil and political rights, " the report states, "and they weaken the cause of democracy around the world with their unilateralist reflexes."
      The unilateralist theme of "Make America Great Again," imitated worldwide, contributes to what the Freedom House report calls "real alarm" for democracy worldwide. "Democracy needs defending," the report concludes, but with Trump in office the report ends with a plea for Americans to recognize that "no one else will do it for us."

Saturday, February 2, 2019

Republicans' Fake Statistics on Illegal Voting

      David Whitley had barely settled into his new job as Texas's secretary of state last month [Jan. 25] when he put out a seriously flawed study suggesting that 95,000 noncitizens had voted, illegally, in Lone Star state elections over the past 20 years. Within the week, however, Whitley's office was acknowledging errors in the lists of supposed noncitizen voters that it had sent to county election offices to use in purging their voter rolls.
      Whitley, a longtime aide to Texas's Republican governor and former state attorney general Greg Abbott, is the latest GOP politician to take up the monomaniacal pursuit of mostly imaginary illegal voting by noncitizens. President Trump is the leading victim of this clinical obsession with his repeated claim that he would have won the popular vote in the 2016 presidential election but for the supposed millions of noncitizen voters who, apparently, broke overwhelmingly for Hillary Clinton.
      As with so many of Trump's utterances, the Liar in Chief has no evidence whatsoever to support this preposterous claim about noncitizen voting in the 2016 election. Whitley, on the other hand, deserves at least partial credit for finishing up a study authorized under a recent Texas law aimed at gathering actual evidence of noncitizen voting in the state.
      The study, immediately touted by the state's Republican attorney general Ken Paxton, raised alarms nationwide after Trump and conservative commentators began citing it as the long-sought proof of noncitizen voting. On the surface, the study seemed sensible enough by correlating noncitizens who applied to the state's Department of Public Safety for driver licenses with names on county election registration rolls.
      The logical flaw, however, results from the extended time period covered by the study since many of the noncitizen drivers could have become naturalized citizens by the time they registered to vote years later. In fact, Texas secretary of state officials involved in the study learned before releasing their results that other states had encountered this very problem with similar studies and had acknowledged their results to be questionable.
      The obsessive search for illegal voting by noncitizens naturally brings to mind Captain Ahab's self-destructive pursuit of the white whale in Moby Dick or the Bush administration's empty-handed search for Saddam Hussein's weapons of mass destruction in Iraq. Among the other recent victims of this neurosis is the Senate's Republican leader, Kentucky's Mitch McConnell, who wrongly claimed in an op-ed essay [Jan. 18] that California election officials had recently allowed 23,000 ineligible voters to register. Five days later, the Washington Post ran a correction to note that the figure "referred to registration errors such as wrongly recorded party affiliations, not ineligible voters."
      McConnell cited the fake statistics in the course of a broad attack on the Democratic-sponsored bill in the House of Representatives aimed at making it easier to vote by requiring, among other practices, automatic voter registration and early voting in federal elections. The Democratic sponsors call H.R. 1 the "For the People Act," but McConnell dismisses it instead as "the Democrat Politician Protection Act" on the wrongheaded premise that it is designed to allow federal workers to take a day off to campaign for Democratic candidates.
      Meanwhile, local election officials in Texas were dealing with the serious issues resulting from a wrongheaded directive from the state elections chief to purge supposed noncitizens from their registration rolls. In Harris County, the state's largest, election officials reported that they had cleared 18,000 voters who had been wrongly identified in the secretary of state's study as potential noncitizens, as reported in the Texas Tribune.
      The Tribune reported that four other large counties had received messages from Whitley's office acknowledging possible errors in identifying some of the voters as noncitizens. By week's end, Whitley had not officially acknowledged the errors, but the office's spokesman backpedaled somewhat by explaining that the office was "continuing to provide information to the counties to assist them" in verifying voter eligibility.
      The long-established Latino advocacy group known by its acronym as LULAC sued Whitley's office in federal court by claiming that the enforcement steps taken based on the flawed study amounted to voter intimidation. "Voter fraud is a lie," LULAC's president Domengo Garcia said at a news conference announcing the lawsuit. "It's a big lie made to disenfranchise primarily African-American, Latino voters in Texas."
      By now, any court can take judicial notice of the fact that Republican lawmakers and officials have enacted laws and adopted policies over the past two decades deliberately aimed at making it harder to vote so as to disadvantage groups likely to favor Democratic candidates at the polls. As one datum, a judge could note that Mississippi's newly elected Republican U.S. senator Cindy Hyde-Smith told a rally after her election in November that it would be "a great idea" to "make it just a little more difficult' to vote."
      The Supreme Court has been complicit in the Republicans' voter suppression by upholding state voter ID laws despite the lack of any measurable evidence of fraudulent voter impersonation at the polls. In today's poisonously polarized political climate, the right to vote no longer enjoys bipartisan support nor strong judicial protection. The fake statistics spread around by Republicans in state capitals and Washington alike undercut what should be a sacred privilege. More than ever, federal courts need to step in boldly when called on to police the politically driven tactics to devalue this most precious of rights in our democracy.