Mazar's Maze

What exactly did that case hold?

|The Volokh Conspiracy |

I have now finished reading Trump v. Mazars. That case was the most unsatisfying constitutional law decision I have read in some time. It sort of abruptly ended, without any real resolution of the specific questions presented. Moreover, the Court adopted a balancing test of the worst sort. Justice Thomas aptly describes the majority's analysis: "a nonexhaustive four-factor test of uncertain origin." Truly Mazar's maze. This case will create endless confusion, long after Trump is out of office. The only winner here was the Judiciary. Both the Executive and Congress suffered a decisive loss.

I will have more to say about the case in due course. I've edited the case for the Barnett/Blackman supplement. If you'd like a copy, please e-mail me (josh-at-joshblackman.com).

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  1. So what do people think about judicial tests generally?

    I dig them. The Lemon test was how I got interested in the law, back in high school.

    Tests and factors may be fiddly, but what’s the alternative? They provide at least some good-faith guidepost to hang you hat on when bright line rules won’t cut it.

    Of course if you’re a pure cynical legal realist as is rare in real life but fashionable around here, you think tests are just eyewash. But you also think everything judges say is eyewash (except for when you agree with them. Well g’wan, git, this ain’t for ya.

    1. Lemon is exactly the kind of test I don’t like because, at least in my experience at the District court level, all it does is create massive uncertainty about what the ruling is going to be.

      Also Lemon is in direct contradiction to other government speech cases, so that adds to the confusion.

      1. Lemon is disfavor, and that is he reason people give.

        But have it’s multifarious replacements created more certainty?

    2. Judicial tests are simply a way for the court to cover nakedly political (or at least personal) judgment with the patina of legal reasoning.

      1. you also think everything judges say is eyewash (except for when you agree with them. Well g’wan, git, this ain’t for ya.

  2. Roberts wanted it off the Supreme Court’s docket, and the liberal Justices (especially Breyer, who never met a balancing test he didn’t like) figured it would be moot long before it got back (unless Trump is reelected…). The District Court will uphold at least some of the subpoenas, the DC Circuit will deny an injunction, and the Supremes will deny an emergency stay…before the documents can be delivered, the election will moot the issue.

  3. I think SCOTUS decided the House had gone too far on a nakedly political fishing expedition then doubled down claiming to be entitled to anything they want without any justification.

    The court then basically sent it back for a do over hoping the House could articulate a reason for the subpoena that would allow them to really come up with some rational rules.

    1. From Alito’s dissent, where he would have gone further:

      Instead, they claim that the subpoenas were issued to gather information that is relevant to legislative issues, but there is disturbing evidence of an improper law enforce-ment purpose. See 940 F. 3d 710, 767–771 (CADC 2019) (Rao, J., dissenting). In addition, the sheer volume of doc-uments sought calls out for explanation. See 943 F. 3d 627, 676–681 (CA2 2019) (Livingston, J., concurring in part and dissenting in part).

      They have an eye on squirrely stories being used as cover to attack political opponents. The impeachment power allows subpoena of private documents, but that was not argued here. The claim of legislative need to evaluate laws requires much better reasoning than that simple given this (and other) contexts.

      1. Exactly… why THIS president’s tax records? If they are simply looking for evidence of how the real world functions in relation to current law so as to discern what, if any, law changes are necessary then why not get several president’s tax records?

        They essentially said, “In order for us to make law we need personal info on exactly THIS ONE specific American citizen, out of the 350+ million. And our law will then be properly extracted from this ONE to be enforced on all.”

        Had they used an oversight argument or impeachment argument they would have had much better ground to stand on IMO.

        1. Well, Alito showed his hypocrisy with that line. In the DACA case, the Citizenship question case, and the travel ban case he argued we needed to ignore Trump’s tweets concerning those subjects. Even though an argument could be made that those tweets show the real intentions behind those policies. If the court would have used the tweets the president would have lost all three cases badly. Instead, the court took the govt arguments at face value. But now he wishes to look into motives?

          Where the Subpoenas Politically motivated??

          Well no Duh!

          Yet how many subpoenas from the opposing party towards the president are not? Where the countless Benghazi investigations politically motivated? Well no duh they even admitted it on Television. Yet those subpoenas were all answered.

          That’s what politics is all about now. Every President has been harassed, yet this president decides to cry like a child when it happens to him.

          Also, I won’t lie some of the tax subpoenas had nothing to do with Trump, But Elijah Cummins subpoena had this as the purpose

          1) “may have engaged in illegal conduct before and during his tenure in office,” (2) “has undisclosed conflicts of interest that may impair his ability to make impartial policy decisions,” (3) “is complying with the Emoluments Clauses of the Constitution,” and (4) “has accurately reported his finances to the Office of Government Ethics and other federal entities.”

          All four of these seem like legitimate reasons to look for the presidents tax returns.

    2. “I think SCOTUS decided the House had gone too far on a nakedly political fishing expedition …”

      This probably overstates things but if I had to sum up the SCOTUS’ attitude toward the House case in two words: “Politics? Gross.”

      The idea that politicians might be motivated to prevail in political contests by uncovering wrongdoing by their opponents was basically horrifying to them.

      I’ll say it again: Harriet Miers may not have lived her life in a monastic cell in silent contemplation of the Constitution, but she had actually run for office, run an agency, managed a law firm, and, well, done stuff. All of which is terribly disqualifying for a Supreme Court Justice.

  4. Doesnt 6103(f) preclude congress from getting the returns (with the exception of the ways and means committee and the senate finance committee.

  5. “The only winner here was the Judiciary. Both the Executive and Congress suffered a decisive loss.”

    You know you have a good compromise when everyone walks away disappointed.

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