In a remarkable courtroom pummeling, a federal judge today branded a notorious copyright lawyer an inveterate liar who undertook a "concerted campaign of deception" that has left her questioning the attorney's "fitness to practice."
In a 70-minute hearing in her White Plains, New York courtroom, Judge Cathy Seibel this morning delivered a blistering denunciation of Richard Liebowitz's behavior in connection with a civil lawsuit he brought last year on behalf of a photographer.
As detailed in a TSG story published Monday, Liebowitz (seen at right) lied to Seibel when asked to explain why he failed to show up for an April 12 court hearing. Liebowitz claimed that his grandfather had died on the morning of the hearing, and that, "I needed to immediately arrange to be with my family during this difficult time." Liebowitz told Seibel, "In the Jewish religion certain customs needed to be done before the Sabbath that I needed to assist in. I truly hope the Court understands this emergency."
Alexandria Ocasio-Cortez became the youngest woman ever elected to the House of Representatives, at age 29. How old was the youngest man ever elected to the House of Representatives, when he was elected? Recall that the constitutional minimum is 25 ("No Person shall be a Representative who shall not have attained to the Age of twenty five Years ….").
Kentucky allows nonprofit groups to arrange for license plate designs, subject to some conditions:
(c) The group, or the group's lettering, logo, image, or message to be placed on the license plate, if created, shall not discriminate against any race, color, religion, sex, or national origin, and shall not be construed, as determined by the cabinet, as an attempt to victimize or intimidate any person due to the person's race, color, religion, sex, or national origin;
(d) The group shall not be a political party and shall not have been created primarily to promote a specific political belief;
(e) The group shall not have as its primary purpose the promotion of any specific faith, religion, or antireligion.
(f) The name of the group shall not be the name of a special product or brand name, and shall not be construed, as determined by the cabinet, as promoting a product or brand name; and
(g) The group's lettering, logo, image, or message to be placed on the license plate, if created, shall not be obscene, as determined by the cabinet.
It also lets individuals set up their own vanity plates—the combinations of letters and numbers that identifies the car, not the overall plate design—but requires them "to comply with the conditions" set forth for the plate designs. Bennie Hart asked for a license plate that said IM GOD, but the request was denied "based on its reference to religion."
[1.] Vanity plate contents are private speech, not government speech. Though Walker v. Sons of Confederate Veterans held that license plate designs are government speech, and the government can generally pick and choose which ones are allowed, vanity plates convey the owner's own views. In this, the court rejected a recent contrary Indiana Supreme Court decision, and followed instead the reasoning in a recent Maryland high court decision.
[2.] The vanity plate program is a nonpublic forum, so the government has some power to restrict speech there—but only in a viewpoint-based and reasonable way. And
Based on the facts of this case, § 186.174(1) is unreasonable as applied to Mr. Hart. The Transportation Cabinet argues that a statute banning religious reference is reasonable because it is necessary to support its legitimate government interest in "promot[ing] highway safety" because "potentially controversial messages … could lead to confrontation or distraction on its highways." The Sixth Circuit has stated that avoidance of controversy is a valid ground for restricting speech in a nonpublic forum, because a nonpublic forum is not dedicated to general debate or the free exchange of ideas. See United Food & Commer. Workers Union, Local 1099 v. Southwest Ohio Reg'l Transit Auth., 163 F.3d 356 (6th Cir. 1998) (collecting cases). However, the Transportation Cabinet has been so inconsistent in its application of § 186.174 that it has ceased to be "consistent with [Kentucky's] legitimate government interest" in any way.
If the Transportation Cabinet genuinely wants to avoid controversy on Kentucky's highways by preventing "promotion of any specific faith, religion, or anti-religion" from appearing on vanity plates, then it should have denied "IM4GOD", "ASKGOD", GR8GOD", "LUVGOD". But it did not. Instead, the Transportation Cabinet has approved multipl[e] vanity plates featuring the word "god". This suggests that the law as applied to Mr. Hart is neither reasonable nor viewpoint neutral.
Seems right to me.
[3.] Given Matal v. Tam (the Slants case), I think that the exclusion of messages that "discriminate against any race, color, religion, sex, or national origin" (if understood as banning messages that support such discrimination) and messages that "attempt to victimize or intimidate any person due to the person's race, color, religion, sex, or national origin" would be unconstitutionally viewpoint-based. (A ban on speech that conveys true threats against people would be constitutional, but such threats are hard to communicate in six letters or numbers, especially if the threat specifically targets a certain group; and in any event, given R.A.V. v. City of St.Paul, even restrictions on true threats are unconstitutional if they discriminate against bigoted viewpoints.)
Likewise, given Rosenberger v. Rector and Matal, the exclusion of material that is primarily meant to "promot[e] … any specific faith, religion, or antireligion" would be unconstitutionally viewpoint-based even if it had been evenhandedly applied. But the court had no occasion to deal with the restrictions on "discriminatory," "victimizing," or "intimidating" messages, and it declined to consider a facial challenge to the restriction on religion-related messages.
During oral argument in the DACA case, very little time was spent on whether the policy itself was lawful. Almost all of the questions from the bench concerned whether the cancellation memo was reviewable, whether Secretary Duke adequately considered reliance interests, and whether Secretary Nielsen's provided an independent basis to cancel DACA.
There was only one significant colloquy between Justice Kagan and SG Francisco about the legality of the policy. Here it is, slightly truncated for readability:
GENERAL FRANCISCO: And my final and critical point is that there's no limiting principle. The theory on which DACA rests effectively allows the government to create a shadow INA for any category of aliens that it chooses to make low-priority targets, a shadow second-tier INA. And you, at the very least, need to locate something in the INA that confers that kind of broad and unfettered discretion. And there is simply nothing there. But, again—…
JUSTICE KAGAN: You know, the INA does give quite a lot of discretion to administrative officers, as you yourself admit and have argued on previous occasions and, indeed, in part here. … are you saying that DACA was --violated any particular provision of the INA? What are you saying it violated? … -because there's a big delegation, right, that says you get to make national policy. So what did DACA violate? …
GENERAL FRANCISCO: But, secondly, we're not saying that there's a specific provision that it conflicts with. But what we are saying is that when you adopt this kind of broad and historically unprecedented program, you need to at least locate the authority to do so somewhere in the INA. …
JUSTICE KAGAN: --you know, they located the authority in the INA's grant of broad discretion over national immigration enforcement policy.
GENERAL FRANCISCO: Your Honor, I think that the most that does is it gives you the authority to set policies and priorities, but there's a big leap between that and saying that you can affirmatively facilitate violations of the INA by hundreds of thousands of individuals to whom Congress has repeatedly declined a pathway to lawful status.
I found Francisco's answer somewhat unsatisfying, but predictable. (I regret that the Court denied Texas's motion to argue as amicus curiae; it could have presented a much more forceful attack on DACA, as it did before the 5th Circuit with respect to DAPA). The federal government has always been cagey about precisely what the legal and constitutional defects were in DACA–for an obvious reason. The SG is usually not in the position to argue that federal law limits the executive's power. Here, of course the Trump Administration has taken exactly that position. What then, is the answer to Justice Kagan's question? Which provision of the INA does DACA violate?
Generally, when a party argues that some executive policy is illegal, she would contend that the policy violates a specific statute. That is, the statute authorizes X, and the government does something other than X. But the SG's arguments about DACA's illegality are different: if the statute in fact authorizes X, then the statute unconstitutionally delegates legislative power to the executive branch. To avoid reaching the conclusion, the court should presume that Congress did not intend to delegate to the agency the power to resolve such a "major question." Here, the major question did not consider forbearance of removal; rather it concerns bestowing benefits including work authorization on 1 million+ aliens. (Texas never challenged the prioritization aspect of DAPA and DACA.) As a result, the Court should find the action was ultra vires–that is, beyond the scope of delegated authority. In short, Kagan questioned the government about an argument it never made.
SG Francisco's answer comes as close as possible as the SG can get to articulating the nondelegation doctrine.
Later in the argument, Ted Olson seemed perplexed at what the "constitutional defects" were in DACA:
OLSON: The Attorney General specifically said that DACA was illegal and unconstitutional. I don't know where the unconstitutional came from because it didn't come from the Fifth Circuit.
The answer to Olson's question, which Francisco alluded to during oral argument, was spelled out in the SG's reply brief. I flagged it here:
Respondents contend (N.Y. Br. 31-42) that DHS offered an inadequate explanation for its legal analysis. But the APA requires only that "the agency's path may reasonably be discerned." State Farm, 463 U.S. at 43 (citation omitted). Both memoranda reflect DHS's conclusion that the DACA policy exceeded the agency's "statutory authority." Regents Pet. App. 116a, 123a. That conclusion does not depend on whether DACA prevented DHS officials from exercising any discretion. See pp. 19-20, supra. And neither Secretary "place[d] any significant weight" on Attorney General Sessions' statement that DACA was unconstitutional, FCC v. National Citizens Comm. for Broadcasting, 436 U.S. 775, 804 n.23 (1978)—which, in any event, simply underscored his strongly held view that DACA was based on a statutorily unauthorized exercise of Executive power.
Regardless of whether the Secretaries placed any weight on that determination, by statute, they were bound by the AG's legal conclusions. (I suspect the DHS lawyers requested this sort of hedge because the agencies routinely rely on very broad–and in my estimation dubious–delegations of authority.) This rationale provides enough basis to support the cancellation of DACA.
The Cato Institute's amicus brief (which I co-authored) carefully explains the relationship between DACA, the INA, the nondelegation doctrine, and the major question doctrine. I maintain that this argument is the only viable path by which the Court can find that DACA is in fact illegal, and uphold the Attorney General's legal determination. Here is the key excerpt (pp. 18-19):
First, consider the regulation that authorizes the secretary to grant DACA recipients with work authorization, with which we can presume the attorney general was familiar.6 8 C.F.R. 274a.12(c)(14) provides a crystalline illustration of the elephant-in-mousehole framework. In 1987, the Immigration and Naturalization Service denied a petition for rulemaking to re-strict the issuance of work authorization to certain aliens. See Dep't of Justice, Immig. & Naturalization, Employment Authorization; Classes of Aliens Eligible, 52 Fed. Reg. 46,092 (Dec. 4, 1987). The government justified the denial, in part, because the number of such work authorizations would be "quite small"—so small, that the number was "not worth recording statistically." Id. at 46,092-93. Moreover, such authorizations would "normally [be] of very limited duration," and would be very rare. Id. at 46,092.
DACA operates in a very different fashion. The policy could provide roughly 1.5 million aliens with work authorization, and those authorizations could be renewed for years to come.7 This elephantine-sized grant of work authorizations—limited in neither size and "with no established end-date"—cannot conceivably be jammed into a not-statistically-significant mousehole. In every sense, this provision of benefits relies on a reading of federal immigration law that amounts to "an unconstitutional exercise of authority by the Executive Branch"—that is, the exercise of legislative powers. The attorney general's conclusion is consistent with the Court's admonition in Brown & Williamson: "Congress could not have intended to delegate a deci-sion of such economic and political significance"—the ability to provide work authorization to 1.5 million aliens—"in so cryptic a fashion."8
This argument does not in any way rely on policy rationales. If DACA, no amount of reliance interests can justify its continued enforcement.
The DACA litigation turns, in part, on two separate memoranda issued by two Homeland Security Secretaries: (1) a memorandum from Secretary Elaine Duke, and (2) a memorandum from Secretary Kirstjen Nielsen. The latter document was created after Judge John Bates (DDC) asked the government to provide a further explanation for its decision.
In a recent post, Andy Pincus was surprised at how the Solicitor General characterized the interplay between these memos. (I am grateful to Andy's company and camaraderie as we waited on the cold and rainy bar line together early Tuesday morning.) He wrote:
These questions of accountability and procedural regularity are heightened by the quite surprising reply brief filed by the Solicitor General last week, which reverses position on the Nielsen memo, urging the Court to consider it a new agency action and to uphold DACA's termination based on the policy explanations offered by Secretary Nielsen.
I don't see a reversal at all. I checked the government's briefs in the lower courts, and found very similar arguments. Specifically, DOJ argued that the Nielsen Memorandum provided an "independent" policy justifications to rescind DACA. The Court may find those rationales unpersuasive, or conclude that the Nielsen memo is outside the administrative record, but the government preserved the argument. Here are some excerpts (with my emphasis added).
D.C. Circuit Reply Brief:"[A]s DHS did not need to use notice-and-comment rulemaking to rescind DACA, the Nielsen Memo could stand as an independent basis to rescind DACA even if the Duke Memo were somehow insufficient on its own." (at 22-23)
Second Circuit Reply Brief: "The Nielsen Memo briefly elaborates on the Duke Memo, which the district court already considered, and this Court can and should assess that further explanation itself. Indeed, the Court may consider the Nielsen Memo on its own terms, including insofar as its reasoning goes beyond the Duke Memo, given that, as the district court recognized, rescinding DACA does not require notice-and-comment rulemaking." (at 3-4)
These briefs were consistent with how SG Francisco presented his argument before the Court. Indeed, he used the phrase "independent" several times:
GENERAL FRANCISCO: Sure. For a couple of reasons, Your Honor. First, because she sets forth separate and independent bases justifying the rescission: first, her belief that it's illegal; second, her belief that there are serious doubts about its illegality; and, third, her conclusion that, as a matter of enforcement policy, the Department of Homeland Security is against these kinds of broad-based non-enforcement decisions.
GENERAL FRANCISCO: –that's precisely what Secretary Nielsen's memo did. It did two things. First, it explained the basis for Secretary Nielsen –Secretary Duke's decision, but, secondly, it set forth her own independent judgment.
GENERAL FRANCISCO: I –I simply disagree with that. When she specifically says that she is setting forth separate, separate and independent grounds justifying the rescission, I don't think that there's any fair way to read that but by saying that she would have rescinded it based on any of the independent grounds, which brings me
The SG's reply brief did not "reverse position" on the Nielsen memorandum.
Last week, my colleague Northwestern Professor Steve Calabresi published an op-ed raising issues about the procedural fairness of the impeachment hearings. He met with strong attacks, including by my Volokh colleague, Professor David Post.
At the Daily Caller, Calabresi has now updated his original arguments on the issue:
Numerous critics have contacted me arguing that Sixth Amendment rights would apply to President Trump in a Senate trial, but not in a House proceeding.
But why were Presidents Nixon and Clinton given Sixth Amendment rights in their House impeachment proceedings which President Trump is being refused?
The House of Representatives may function only as a grand jury in impeachment proceedings, in which case House Democrats may have been violating Trump's Fifth Amendment Due Process Clause rights by leaking damaging information about him as the result of a secret investigation in which the charges have not been revealed. He has not been able to confront the witnesses against him, and he has not been able to call witnesses in his own defense.
I say the House of Representatives may function as a grand jury in cases of impeachment because in some respects the impeachment process is sui generis.
In both the Nixon and Clinton impeachment proceedings, the House gave presidents their Sixth Amendment rights. The House did not in those proceedings leak damaging information to the press obtained in a secret proceeding. Nixon and Clinton were informed of the charges against them, they were able to confront witnesses against them, and they were able to call witnesses in their own defense.
There is quite simply no question, at all, that impeachment cases in England were criminal law proceedings. They usually ended up with the House of Lords pronouncing the death penalty or life imprisonment as its sentence. Article III, section 2, paragraph 3 explicitly states: "The Trial of all Crimes, except in cases of Impeachment, shall be by jury." Sixth Amendment rights, in turn, attach "In all criminal proceedings" and Fifth Amendment Due Process Clause rights apply to grand jury proceedings in which it is illegal to secretly leak grand jury information to the press.
The framers of our Constitution limited the Senate's power to punish impeached officials to removal from office and disqualification from holding office in the future. That does not change the criminal nature of an impeachment case, which the Senate hears as a Court of Impeachment. Removal from office can only happen if the Senate finds that President Trump has committed "Treason, Bribery, or other high Crimes and Misdemeanors."
I haven't gone through the arguments pro and con with care, but the question whether these hearings are fundamentally unfair is different from the question whether full 5th and 6th amendment rights are legally required.
We have an established tradition in the Clinton and Nixon impeachment proceedings for how to conduct fair hearings of this type, a tradition that is being ignored today. Further, a presidential impeachment is important enough that the protections should be exemplary, not sub-normal. One should also remember that grand juries are often criticized as being fundamentally unfair (e.g., "ham sandwich")–and with grand juries, proceedings are secret and leaking testimony is a crime.
Here having public hearings, while allowing only one side of the story and prohibiting the Republicans from calling their own witnesses, makes the hearings less like a trial or a grand jury and more like a show trial.
The Supreme Court's October 2015 Term was cut short because of Justice Scalia's unexpected passing. As a result, the Justices were unable to decide several of the most important issues on the docket. For example, the short-handed Court punted in Zubik v. Burwell. (To this day, the judiciary continues to grapple over the contraceptive mandate.) And the Court also split 4-4 in Texas v. U.S., which considered the legality of DAPA. At the time, I wrote in the Harvard Law Review that the latter case stood in a unique posture: "Because this case will likely return to the Court following the remand, there will be a rare opportunity to revisit the appeal in a new light."
Of course, I expected Hillary Clinton to win the election, and continue to defend DAPA, as well as DACA. Instead, Donald Trump won the election. His administration promptly terminated DAPA, and after pressure from conservative states, announced the decision to suspend DACA.
The Supreme Court, therefore, was never called upon to decide the legality of DAPA, as well as DACA, directly at least. Instead, the Justices were asked to decide a related, but distinct question: could DACA be suspended based on the Attorney General's conclusion that the policy is illegal.
In January 2018, the Solicitor General submitted a petition for certiorari before judgment. He urged the Court to hear the case as soon as possible in light of the sweeping consequences of the policy. The Solicitor General's urgency was obvious: every day that lapsed, as Dreamers further relied on the policy, would make it more difficult to wind down DACA. The Court denied that petition in February 2018. As a result, the issue could not–and indeed will not–be resolved until June 2020. Right before the next presidential election.
Now the case is at last before the Court. And, based on my reading of oral argument, we may get a third dodge: the Justices will rule that the rescission memorandum is not subject to judicial review. This decision would leave open the legality of the policy for the foreseeable future. And, due to the timing of the wind-down period, the policy may not be suspended until after the inauguration date.
In theory, a Democratic President could simply revoke the cancellation memorandum on January 20, 2021, and allow the Dreamers to renew their status. Indeed, the new President would likely expand the policy to account for people who entered the United States at a later date. At that point, Texas would simply go back to District Court and seek another injunction to block the policy. Throughout this entire period, as the executive's position waxes and wanes, the status of the Dreamers will remain in flux. And the cycle would continue indefinitely.
A Supreme Court ruling based on justiciability will usually be viewed as a minimalist decision (however that term is defined). Why should the Court decide a very difficult question when it doesn't have to?
Justice Gorsuch alluded to an answer in a related colloquy, in which he cast doubt on the benefits of a remand:
JUSTICE GORSUCH: Well, if I might ask a question about that if we're talking about the merits then, and then I –I'll pass off the baton. The reliance interests that we've -we've talked about earlier, I –I think your -your friend on the other side would say we did address reliance interests in a paragraph and we could do it in 15 pages, but we'd say pretty much the same thing at the end of the day, and it would take another six years, and it would leave this class of persons under a continuing cloud of uncertainty and continue stasis in the political branches because they would not have a baseline rule of decision from this Court still on this issue.
The Court should resist the siren call of restraint. There is nothing minimalist about such a ruling. Indeed, another dodge would allow the reliance interests of the Dreamers to become even further cemented in our polity. However difficult it is for the government to justify rescission today, it will become even more difficult to do so in two years when the case comes back up on remand. A punt here would effectively cement DACA as a policy, without ever deciding its lawfulness.
The Court should issue, in Justice Gorsuch's words, "a baseline rule of decision," now. If DACA is illegal, then the administration was justified in suspending the policy. If DACA is legal, then the 46th President could resurrect the policy. I have an opinion on which answer is correct, but I would much prefer a clear decision one way or the other, rather than further dodges. Letting this issue linger for the foreseeable future creates uncertainty and doubt in all three branch of government, and worst of all, leaves the Dreamers under a "continuing cloud of uncertainty."
A Vermont statute (12 Vt. Stats. Ann. § 522) provides that key documents and hearings in lawsuits over "childhood sexual abuse"—alleged abuse that happened when the plaintiff was under 18—would be either temporarily or permanently sealed:
If a complaint is filed alleging an act of childhood sexual abuse, the complaint shall immediately be sealed by the clerk of the court.
The complaint shall remain sealed until the answer is served or, if the defendant files a motion to dismiss …, until the court rules on that motion.
If the complaint is dismissed, the complaint and any related papers or pleadings shall remain sealed.
Any hearing held in connection with the motion to dismiss shall be in camera.
(Note that the statute will often be applied when the plaintiff is no longer a child; indeed, Vermont just repealed the statute of limitations for such cases.)
This statute is very much an exception; the normal rule is that civil lawsuits are decided in open court, with openly filed papers, so that the public can monitor what the courts are doing. In the words of Justice Holmes writing in 1884,
It is desirable that the trial of [civil] causes should take place under the public eye, not because the controversies of one citizen with another are of public concern, but because it is of the highest moment that those who administer justice should always act under the sense of public responsibility, and that every citizen should be able to satisfy himself with his own eyes as to the mode in which a public duty is performed.
Indeed, most courts conclude that this rule of open access is generally mandated by the First Amendment (following Richmond Newspapers, Inc. v. Virginia (1980), which took that view as to criminal trials). The Vermont statute thus raises several questions:
[1.] Is it constitutionally permissible to temporarily seal complaints in these cases until an answer is filed—generally just three weeks, unless the defendant gets an extension—so that the public gets access to the complaint and the answer at the same time?
[2.] Is it constitutionally permissible to temporarily seal complaints until the motions to dismiss are decided, which could take months?
[3.] Is it constitutionally permissible to permanently seal complaints if the judge grants the motion to dismiss?
[4.] How is all this supposed to practically work, when the statute on its face calls only for the sealing of the complaint (until a motion to dismiss is granted, when "the complaint and any related papers or pleadings shall remain sealed")? Does the "shall remain sealed" language suggest that the motion to dismiss and the responses (as "related papers or pleadings") would themselves be sealed at the outset, because they generally discuss the facts of the case?
But a case brought under the statute, and then removed to federal district court, also raises another question:
[5.] Does the Vermont state sealing statute apply when the case is being litigated in federal court?
I've moved to intervene and unseal in this case, Giroux v. Foley, No. 2:19-cv-00187-cr, and I thought I'd post my motion, in case any of you are interested. (Note that, when I filed my motion, the entire docket was sealed; but yesterday the District Court unsealed the docket, my motion, and its initial order to seal.) Here are the juicier parts, for some values of the adjective "juicy":
[II.] Whether this case is sealed is governed by federal common law and the First Amendment, not the Vermont statute to which the Motion to Seal appeals
The docket entry for Defendant's Motion to Seal suggests that defendant is relying on Vermont's statute that calls for mandatory sealing (whether temporary or permanent) of documents in childhood sexual abuse cases, 12 V.S.A. § 522(b). But "[u]nder the Erie doctrine, federal courts sitting in diversity apply state substantive law and federal procedural law," Gasperini v. Center for Humanities, Inc., 518 U.S. 415, 427 (1996); the rules controlling access to court files are procedural, not substantive. And, of course, even if the Vermont statute did apply in federal court, it would be trumped by the First Amendment right of access. See, e.g., Burkle v. Burkle, 135 Cal. App. 4th 1045, 1048, 1070, 37 Cal. Rptr. 3d 805, 808, 827 (2006) (statute requiring "a court, upon the request of a party to a divorce proceeding, to seal any pleading that lists and provides the location or identifying information about the financial assets and liabilities of the parties" "is unconstitutional on its face as an undue burden on the First Amendment right of public access to court records").
[III.] The public has a presumptive right of access to complaints, court orders, motions to seal, and the docket
[A.] Complaints: Under both federal common law and the First Amendment, the public has a presumptive right of access to complaints. Bernstein v. Bernstein Litowitz Berger & Grossmann, 814 F.3d 132, 140-41 (2d Cir. 2016). "'A complaint, which initiates judicial proceedings, is the cornerstone of every case, the very architecture of the lawsuit, and access to the complaint is almost always necessary if the public is to understand a court's decision.'" Id. at 140 (quoting FTC v. Abbvie Prods. LLC, 713 F.3d 54, 62 (11th Cir. 2013)).
By most everyone's judgment, the Senate will not vote to remove President Donald Trump from office if the House impeaches him. But what if senators could vote on impeachment by secret ballot? If they didn't have to face backlash from constituents or the media or the president himself, who knows how many Republican senators would vote to remove?
A secret impeachment ballot might sound crazy, but it's actually quite possible. In fact, it would take only three senators [Republicans who would cross over to form a majority with the Democrats] to allow for that possibility.
But I don't think that's right; article I, section 5 of the Constitution provides (emphasis added),
Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business; but a smaller Number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide.
Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.
Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy; and the Yeas and Nays of the Members of either House on any question shall, at the Desire of one fifth of those Present, be entered on the Journal….
That seems to provide a clear rule governing the matter: If 1/5 of the Senators oppose a secret ballot, the yea and nay votes "shall … be" made public, e.g.,
You'd need 81 senators for secrecy, not 51. Whatever one might say as a policy matter about the advantages and disadvantages of secret ballots, the Constitution's text has taken a very specific stand on this subject. (Prof. Josh Chafetz (Cornell) has argued the same, and I'm sure others have as well.)
The column has an UPDATE, reading,
Some constitutional scholars have pointed out that Article 1, Section 5, of the Constitution designates that 20 senators can oppose a secret ballot on "any questions," but "questions" are defined as "Any matter on which the Senate is to vote, such as passage of a bill, adoption of an amendment, agreement to a motion, or an appeal." No mention of impeachment proceedings is made. And, as others have pointed out, preceding this one-fifth requirement is crucial language: "Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy." Precedents are so thin here, but it is clear the Senate has the power to make its own rules over the trial proceedings. Those rules have historically required a simple majority of support.
That, though, seems wrong to me. First, the Constitution doesn't limit "any questions" to bills, amendments, motions, or appeals (which would mean appeals from procedural rulings). That quote comes from the Senate's web site, which doesn't seem particularly authoritative on this score—and in any event, gives bills, amendments, and the like as such examples ("such as") of "questions." Whether to remove a President from office strikes me as well within the term "any question," and for that matter within the Senate site's phrase "Any matter on which the Senate is to vote."
Second, that "excepting such Parts as may in their Judgment require Secrecy" precedes the one-fifth requirement simply makes clear that (1) secrecy is sometimes allowed, but (2) can be overcome by a one-fifth vote, not by a half-plus-1 vote or any other mechanism.
Third, while article I, section 5 does leave each house with the power to "determine the Rules of its Proceedings," that general power is limited by the specific constraints in the same section:
Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.
Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy; and the Yeas and Nays of the Members of either House on any question shall, at the Desire of one fifth of those Present, be entered on the Journal….
I take it that we wouldn't think that the Senate could expel a Senator by a 51-49 vote, simply by creating a "Rule of its Proceedings" that authorizes that; the "Concurrence of two thirds" needed to "expel a Member" is an express limitation on the Senate's powers, including its powers to make rules for expulsion. Likewise, the One-Fifth Clause is an express limitation on the Senate's powers, including its powers to make rules for operating in secret.
UPDATE: I added the Senate Journal image from the First Congress, just as a vivid illustration of the procedure.
I attended oral arguments today in the DACA case. I will have much more to say about the proceedings, as well as the process to get there, in due time. For now, I will briefly offer my prediction: there are at least five votes to hold that the DACA rescission is not reviewable. I say at least five, because Justice Kagan did not seem averse to that analysis. Indeed, a decision that the rescission is not reviewable could lead to the conclusion that DACA itself is not reviewable. SG Francisco tried to thread the needle by saying DACA was reviewable, but the decision was not. Justice Kagan seemed skeptical of this argument. The specific contours of that ruling would become important if President Trump loses re-election.
This type of ruling would be the best-case loss for the Dreamers. Given the 30-day period following remand, followed by a six-month wind-down period, DACA would remain in effect until after the inauguration. In theory, at least, a Democratic president could simply reinstitute the policy on January 20, 2021. At that point, we would be back at square one, and Texas would sue to block DACA.
The Court already ducked the merits of deferred action once in 2016. It could do so again here. And it may take another two years before the case winds its way back to the Court. At which point, the reliance interests would become even greater than they are today.
Update (11/13/19): The New York Times quotes Mark Krikorian, a prominent critic of DACA. He suggests that the effective date of the rescission could be extended further in light of the election.
Mark Krikorian, an immigration restrictionist and the executive director for the Center for Immigration Studies, said that Mr. Trump could theoretically defer making a decision during the election year. With such a move, Mr. Trump's White House could say the administration will stop processing renewals of DACA status so that it does not kick in until after the election.
"In the middle of an election year, I think the White House can genuinely say that this is not a good time to broker an immigration deal, not for anyone," Mr. Krikorian said. "That's a plausible position for them that may limit the political challenge that they face" by ending the program immediately.
I strongly doubt any changes will be made prior to January 20, 2021.
Steven Calabresi is an important figure in the US legal profession, the holder of a named chair at a top-flight institution (Northwestern Pritzker School of Law) and the Co-founder and Board Chairman of the Federalist Society. In a recent essay, "House Democrats Violate The 6th Amendment By Denying Trump A Public Trial," available here, he makes an argument that the House impeachment inquiry is violating President Trump's Sixth Amendment rights, an argument that is so peculiar, and so contrary to elementary and fundamental constitution principles, that one has to wonder what he could possibly have been thinking and what could possibly have motivated him to put the argument forward.
Here's the basic gist of what he wrote:
"The nation is transfixed by the impeachment proceedings against President Donald Trump for purportedly using U.S. military aid to Ukraine to prompt that country to reopen a corruption into former Vice President Joe Biden's son. What no one is focusing on is the fact that the Democratic majority in the House of Representatives is violating the president's constitutional rights. The House majority is thus itself acting unconstitutionally and is seriously abusing its power.
Impeachment is a legal proceeding, and just as criminal defendants have constitutional rights in criminal trials so too does Trump have constitutional rights, which House Democrats are denying him. For example, the Sixth Amendment gives criminal defendants the right to "a speedy and public trial." House Democrats are trying Trump in secret and are denying him the right to a public proceeding….
The Sixth Amendment also guarantees criminal defendants the right to be "informed" of the charges against them. House Democrats are not informing Trump of the charges against him and are leaking salacious information to the press. This, too, violates Trumps rights under the federal Bill of Rights.
Moreover, the Sixth Amendment guarantees Trump the right "to confront the witnesses against him," which right House Democrats are denying to Trump. The president has a right under current Supreme Court case law to have a public face-to-face confrontation with the witnesses against and to testify in his own defense. House Democrats are denying the president that very basic constitutional right…."
Perhaps "no one is focusing on this" because it is utter nonsense, completely devoid of any apparent constitutional logic. Yes, impeachment is a "legal proceeding"—but it is not a criminal proceeding to which the 6th Amendment applies; yes, "criminal defendants" are guaranteed the right to a speedy trial, to be informed of the charges, to confront witnesses, etc.—but Mr. Trump is not a "criminal defendant" in the impeachment proceedings, so Prof. Calabresi's claim makes no sense whatsoever.
To review, here's the text of the 6th Amendment:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence."
The critical phrase, of course, is the first one, explicitly linking 6th Amendment protections to "the accused" in a "criminal prosecution." There is more than a century's worth of precedent construing that critical limitation on the Amendment's scope. A "criminal prosecution" begins, and the 6th Amendment attaches, at the "initiation of adversary judicial criminal proceedings—whether by way of formal charge, preliminary hearing, indictment, information, or arraignment—because the initiation of such proceedings marks the commencement of the criminal prosecutions to which alone the explicit guarantees of the Sixth Amendment are applicable." Moore v. Illinois, 434 US 22 (1977); Texas v. Cobb, 532 U.S. 162 (2001). And to constitute a criminal proceeding, there must be a threat of "actual imprisonment"—a substantial "deprivation of liberty." Scott v. Illinois, 440 U.S. 367 (1979), Rothgery v. Gillespie County, Tex., 128 S. Ct. 2578 (2008).
Thus, 6th Amendment protections do not apply to:
proceedings involving "petty" (as opposed to "serious") crimes, as measured by the length of the authorized prison term, Muniz v. Hoffman, 422 U.S. 454 (1975);
to misdemeanors (unless accompanied by prison terms for violators), U.S. v. Nachtigal, 507 U.S. 1 (1993);
prison disciplinary hearings, Minnesota v. Murphy, 465 U.S. 420 (1984);
parental status termination hearings, Lassiter v. Department of Social Services of Durham County, 452 U.S. 18 (1981);
juvenile delinquency proceedings, McKeiver v. Pennsylvania, 403 U.S. 528 (1971);
probation hearings, U.S. v. Nachtigal, 507 U.S. 1 (1993), Frank v. U.S., 395 U.S. 147 (1969);
summary courts-martial, Middendorf v. Henry, 425 U.S. 25 (1976);
asset forfeiture proceedings, Libretti v. U.S., 516 U.S. 29 (1995);
civil (as opposed to criminal) contempt proceedings, or civil proceedings generally, Turner v. Rogers, 564 U.S. 431 (2011)
because (and to the extent that) these are not criminal proceedings involving the prospect of imposing a punishment of "actual imprisonment" on the litigant.
The notion that the House's impeachment inquiry is, constitutionally-speaking, an "adversary judicial criminal proceeding" to which the 6th Amendment applies is, frankly, laughable and nothing short of ridiculous, the sort of mistake a 1L might make on a ConLaw 1 exam but not something one expects from an eminent law professor holding a position at a top law school. The impeachment inquiry is not an adversary judicial criminal proceeding because it is neither a "judicial" proceeding nor a "criminal" proceeding; it is a Congressional proceeding, and whatever the outcome may be it will not, and cannot, result in Trump's imprisonment or any deprivation of his liberty, but only in his removal from office. [Indeed, it would certainly be an obvious and egregious violation of the constitutional separation of powers were Congress to undertake a true criminal proceeding, a function reserved to the Judiciary.]
Whatever constitutional rules or norms might apply to the procedures undertaken as part of the impeachment inquiry—which is a complicated question about which reasonable people might disagree—they are not to be found in the Sixth Amendment, and Trump cannot invoke any of his "6th Amendment rights" (to demand a speedy and public trial or an impartial jury of the State and district wherein the crime shall have been committed, to be informed of the nature and cause of the accusation, to confront with the witnesses against him, to have compulsory process for obtaining witnesses in his favor, or to have the Assistance of Counsel for his defense) in connection with that inquiry.
This is pretty elementary stuff—and it is inconceivable to me that someone as well-versed in constitutional law as Steve Calabresi would not recognize this as the constitutional nonsense that it so obviously is. What we have then, perhaps, is another illustration of Trump Derangement Syndrome—an inability of otherwise sensible and thoughtful people to think clearly and logically about anything concerning this president. And while life is too short to try to correct all the nonsensical notions that law professors come up with, this is not just ordinary constitutional nonsense, it is particularly pernicious constitutional nonsense. We are in a portentous moment in the history of this country; it is likely that, for only the third time in 230 years, the House will pass Articles of Impeachment on to the Senate, and we will then witness a trial in the Senate of a sitting president accused of "high crimes and misdemeanors." Public opinion concerning the strength of the case, the seriousness of the charge(s), the fairness of the process, the credibility of the witnesses, etc., is—and should be—of critical importance to this undertaking. Law professors who want to contribute to the public debate and discussion about these matters surely have an obligation to get matters within their particular spheres of expertise—the laws and the Constitution—as right as they can, in order to assist the public in evaluating these questions and understanding these issues in the weeks and months ahead.
Tomorrow, the Supreme Court will hear three consolidated cases challenging the Trump administration's decision to rescind DACA, an Obama administration policy suspending deportation of some 800,000 undocumented immigrants who came to the United States as children. DACA allows such migrants (often referred to as "dreamers," after the Dream Act, which failed to pass Congress) to stay in the U.S. as long as they arrived in the country when they were 15 years old or younger, were 30 or younger when the program began in 2012, have not been convicted of any crimes as of the time they apply for the program, and have either graduated from a U.S. high school, are currently enrolled in school, or have served in the armed forces.
As co-blogger Josh Blackman (a longtime critic of the legality of DACA) points out, the Trump administration's position in these cases relies heavily on the notion that DACA had to be rescinded because it is itself illegal. For political reasons, the president did not want to give the impression that he actually favors deporting the Dreamers (which would be an extremely unpopular position). Thus, he decided to hide behind the theory that his hands are tied by legal considerations. As Josh recognizes with admirable candor, this framing of the issue makes the administration's policy "nearly impossible to defend." I agree, with one slight modification: If this really is the only justification, I would strike out the "nearly" in that sentence.
While the president's motives for relying on this argument were probably political, I don't doubt that many conservatives, including some administration officials, sincerely believe that DACA is illegal. But, regardless of the reasons for putting it forward, the claim that DACA is illegal is badly wrong. I summarized the reasons why in a 2017 post from which much of what follows is adapted:
Quite simply, DACA is within the scope of presidential authority because it does not change the law, and does not legalize anything that would otherwise be illegal, without specific authorization from Congress.
Critics attack DACA on the grounds that Obama lacked legal authority to choose not to enforce the law in this case. This critique runs afoul of the reality that the federal government already chooses not to enforce its laws against the vast majority of those who violate them. Current federal criminal law is so expansive that the majority of Americans are probably federal criminals.
That includes whole categories of people who get away with violating federal law because the president and the Justice Department believe that going after them isn't worth the effort, and possibly morally dubious. For example, the feds almost never go after the hundreds of thousands of college students who are guilty of using illegal drugs in their dorms.
John Yoo contends that there is a difference between using "prosecutorial discretion" to "choose priorities and prosecute cases that are the most important" and "refusing to enforce laws because of disagreements over policy." But that distinction makes little sense. Policy considerations are inevitably among the criteria by which presidents and prosecutors "choose priorities" and decide which cases are "the most important."
One reason the federal government has not launched a crackdown on illegal drug use in college dorms is precisely because they think it would be bad policy, and probably unjust to boot. It did not even do that during the reign of Attorney General Jeff Sessions, the hard-core drug warrior who also initiated the rescission of DACA on the grounds that the program exceeds the bounds of executive discretion.
Yoo and others also argue that prosecutorial discretion does not allow the president to refuse to enforce an "entire law," as opposed to merely doing so in specific cases. But Obama has not in fact refused to enforce the entire relevant law requiring deportation of illegal immigrants. He has simply chosen to do so with respect to people who fit certain specified criteria that the vast majority of undocumented migrants do not meet.
Most of the points I made in this 2016 article defending the legality of Obama's later DAPA policy (which was rescinded by Trump in June 2017) also apply with even greater force to DACA, since the latter is a much more limited program. Wide-ranging presidential enforcement discretion is unavoidable in a system where there is so much federal law and so many violators that the executive can only target a small fraction of them. In the 2016 article, I explain why presidents have the power to exercise their discretion systematically as well as on a "case-by-case" basis.
Systematic exercise of discretion by the president should be particularly attractive to conservative believers in "unitary executive" theory, which holds that the president should have nearly unlimited authority to set policy priorities for his subordinates in the executive branch. Often, issuing systematic instructions may be the only way for the president to exercise effective control over the sprawling executive law-enforcement apparatus and ensure that it is following his policy priorities.
I myself have growing doubts about the validity of unitary-executive theory. In my view, Congress should, at least in many instances, be able to constrain presidential control over executive officials. But even if that is true, Congress has not in fact adopted any laws requiring the president to prioritize deportation of the "Dreamers" over other law-enforcement goals, or forbidding him from issuing categorical instructions giving absolute priority to other objectives.
The Trump administration and other DACA critics claim that the policy goes beyond enforcement discretion, because it offers "affirmative benefits" to recipients, such as the right to work legally in the United States, and accrue "lawful presence" time in the US. But the policy of giving DACA recipients work permits actually does have congressional authorization, based on a 1986 law that specifically permits employment of aliens who are "authorized … to be employed … by the attorney general."
The grant of "lawful presence" to the immigrants covered by DACA is perhaps the most questionable part of the policy. But while this may seem like a big deal, in reality "lawful presence" does not actually legalize the presence of any otherwise illegal migrants. For the most part, it merely reiterates the executive's discretionary decision not to deport the migrants covered by the order.
It does, however, also allow them to accrue time for the receipt of Social Security and Medicare benefits that, however, they are unlikely to ever actually collect unless their status is genuinely legalized at some point in the future, and they remain in the US until after retirement age.
Moreover, the "lawful presence" element of DACA could easily have been excised separately, without affecting the other, far more important aspects of the policy. If "affirmative benefits" were the true target of Trump and Jeff Sessions' ire, they could easily have taken this approach. But they instead chose to rescind the entire program.
The fact that DACA is an exercise of executive enforcement discretion also undermines Josh Blackman and Ilya Shapiro's creative arguments that it is illegal under "non-delegation" principles, or because it attempts to resolve a "major question" that Congress would not have left to executive determination.
Like Josh and the "other" Ilya (see my handy guide to distinguishing the two of us), I believe the Supreme Court should do more to enforce the "non-delegation" doctrine, which prevents Congress from engaging in excessive delegation of legislative authority to the president. But enforcement discretion is not a legislative power. It's an inherent power of the executive itself. Thus, there is no delegation involved, and therefore no reason to worry that too much power has been delegated.
The same point applies to the "major question" canon, which holds that courts should not interpret federal laws to leave to the executive important decisions about the scope of what is or is not banned by the statute in questoin. The "major questions" at issue are questions about what sort of conduct is legal under the statute, not which lawbreakers will be prosecuted and which let off the hook by enforcement discretion.
Under the doctrine, the executive is denied the power to decide "major questions" about the meaning of a law. But DACA does not do that. It concerns enforcement priorities as between different violators of a specific federal law. It does not offer any new theory about the meaning of that law, much less resolve any "major question" about that meaning.
The extent of presidential discretion over law enforcement revealed by DACA does raise troubling issues. In a world where federal law is so extensive that not only undocumented immigrants, but most native-born Americans, have violated federal law at one time or another, the executive's ability to pick and choose which of the many lawbreakers to go after is a menace to the rule of law.
But that menace won't be ended by getting rid of DACA. Doing so will merely shift the discretion in question to lower-level officials, not eliminate it. The only effective way to truly deal with the problem of excessive executive law-enforcement discretion is to cut back on the immense extent of federal law itself.
The Trump administration could prevail in the DACA cases even if the program is not illegal. The Supreme Court might conclude that Trump still has the authority to repeal the program purely on policy grounds. But that option is, at the very least, made more difficult by the administration's failure to present a policy rationale, except at the eleventh hour. Even now, the administration still hasn't put forward a theory of why it's actually a good idea to subject DACA recipients to deportation, as opposed to claiming that rescinding DACA is desirable for such ancillary reasons as "sending a message" that laws will be enforced. That rationale that could justify pretty much any decision, since virtually any policy could be interpreted as "sending a message" to some group or other.
The Court could also rule that decisions to rescind a enforcement policy are inherently unreviewable, and that therefore the administration can essentially do whatever it wants in this area. But doing so could set a dangerous precedent for future abuses of executive power.
The justices could even conclude that the argument that DACA is illegal is "good enough for government work," even if it is badly wrong. It could perhaps still be enough to pass muster under the Administrative Procedure Act, the law under which the DACA cases are being litigated. I will leave this and other APA-related issues to commentators with greater relevant administrative law expertise.
It is, therefore, entirely possible that the Court will find a way to rule in favor of Trump without ruling that DACA is illegal. Nonetheless, the administration has put a lot of its eggs in the "DACA is illegal" basket, even if not quite all of them. Those eggs richly deserve to be crushed.
NOTE: This post addresses only a key legal issue at stake in the DACA cases. I considered the moral and policy questions raised by DACA here. It is telling that those issues are sufficiently one-sided that even an administration as deeply hostile to most immigration (including legal immigration) as this one wants to avoid looking like it actually wants to deport the "dreamers."