The Imaginary Unitary Executive (Lawfare Essay)

I’ve posted on the Lawfare blog a long-form essay “The Imaginary Unitary Executive.” Link here.

Summary: “Contrary to The Decision of 1789 myth, which SCOTUS relied on to expand presidential power, the legislative record and a diary show that the first Congress rejected the exclusive unitary model.”

Big thanks to Ben Wittes and Quinta Jurecic for excellent editing over Independence Day weekend, in time for a big week on the Supreme Court: “Trump’s lawyers relied on unitary arguments & precedents to contest congressional and state prosecutor subpoenas. The Decision of 1789, properly understood, is no basis for such an argument. In fact, the first Congress’s record militates in favor of congressional oversight.”

This essay is based on two chapters from my book project The Imaginary Unitary Executive.

First: “The Indecisions of 1789: Strategic Ambiguity and the Imaginary Unitary Executive” on the Madison strategy, the House debate, & Senator Maclay’s diary.

Second: “The Decisions of 1789 Were Non-Unitary: Removal by Judiciary and the Imaginary Unitary Executive” focused on the Treasury Act of 1789 & many statutes from the first Congress and the early republic delegating removal power to judges & juries.

TrumpCast on Barr and the Imaginary Unitary Executive

I talked to Virginia Heffernan on her podcast TrumpCast yesterday, posted today: “Worst AG, Barr None.”

Link here.

Those who think Barr is an evil genius are half right. He’s not only the worst Attorney General in American history. He’s not even a good lawyer or a competent fixer. He just pretends to be one on TV. Virginia talked about his series of legal and historical errors, from the likelihood his efforts to help Flynn will backfire… to his SDNY firing fiasco… to his ahistoric myth of the Unitary Executive.

The papers I refer to are posted here:

The Indecisions of 1789: Strategic Ambiguity and the Imaginary Unitary Executive (Part I)
The Decisions of 1789 Were Non-Unitary: Removal by Judiciary and the Imaginary Unitary Executive (Part II)
We ran out of time, but I noted the inconsistency of the DACA dissenters on Slate’s TrumpCast (linked below). Thomas, joined by Alito and Gorsuch have subscribed to the unitary theory in cases like Free Enterprise, and appear poised to embrace the theory again in Seila Law/Trump subpoenas, but did not defer to President Obama’s discretion to create DACA. For what it’s worth, I think Thomas’s opinion is generally right on DACA and administrative law, but the conservative Justices’ inconsistent interpretation of presidential power depending on which party holds the White House is rather remarkable.

 

The Imaginary Unitary Executive: The Non-Unitary Decisions of the Founding Era

As part of my new book project “The Imaginary Unitary Executive,” I have two new papers on SSRN:

The Indecisions of 1789: Strategic Ambiguity and the Imaginary Unitary Executive (Part I)

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3596566

The Decisions of 1789 Were Non-Unitary: Removal by Judiciary and the Imaginary Unitary Executive (Part II)

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3597496

Here is the abstract for the two papers:

Abstract

Supporters of the unitary executive rely on “the Decision of 1789” to establish an originalist basis for presidential removal power at will. However, the first Congress’s legislative debates and a diary (missed by legal scholars) suggest strategic ambiguity and retreat on the constitutional questions, and the Treasury Act contradicted the unitary model. Here are seven overlooked moments from 1789 that dispel unitary assumptions:
1) The “decision” is premised on an ambiguous text and an indecisive unicameral legislative history. The switch from explicit power to a contingency clause was likely strategic ambiguity to get the bill passed in the Senate and to move forward on an urgent legislative agenda. House opponents called this move a retreat and questioned its integrity…
2) …and a Senator’s diary indicates the Senate sponsors, to win passage, denied the clause was important, disclaimed its constitutional meaning, and disavowed even the presidential power itself. A cryptic comment by a presidential House member hinted at this strategy.
3) Justices have erred in claiming that the first Congress decided officers served “at will.” Few members of Congress spoke in favor of presidential removal at pleasure in 1789. The first Congress gave such a low degree of protection to only two offices: marshals and deputy marshals. Meanwhile, in the Treasury debate, opponents of presidential removal power warned against presidential corruption and successfully deleted (without needing debate) a provision that the Treasury Secretary would “be removable at the pleasure of the President.”
4) A tale of two Roberts: two finance ministers, one English, one during the Articles of Confederation era, both scandalous. A reference by Madison during the Treasury debate provide context for independent checks, as opposed to a unitary hierarchy.
5) Judges and scholars have missed that Madison proposed that the Comptroller, similar to a judge, should have tenure “during good behavior.” Though Madison dropped this proposal, the debate reflected his more consistent support for congressional power and how little had been decided in the Foreign Affairs debate.
6) Most problematic for the unitary theory, the Treasury Act’s anti-corruption clause established removal by judges: Offenders “shall be deemed guilty of a high misdemeanor… and shall upon conviction be removed from Office.” The 1789 debates had focused on presidential corruption of finance, and this clause allowed relatively independent prosecutors and judges to check presidential power. Congress added similar judicial removal language to five other statutes between 1789 and 1791, and many more over the next 30 years.
7) These debates pilloried prerogative powers and discussed justiciability of for-cause removals in the English writ tradition, suggesting a larger role for Congress and the courts to investigate presidential power.

For the powers cited by unitary theorists (the constitutional basis for presidential removal power, offices held “during pleasure”), the first Congress was, in fact, indecisive. On whether the president had exclusive removal power, the first Congress decisively answered no. If post-ratification history is relevant to constitutional meaning, the “Decision of 1789” presents more challenge than support for the unitary theory, with implications for Seila Law v. CFPB, independent agencies, independent prosecutors, the Trump subpoena cases, and justiciability

Keywords: Constitutional law, legal history, unitary executive, administrative law, removal, the presidency, judicial power

May 4th Panel: “In the Field with Covid-19”

On Monday, May 4th, I’ll be moderating a panel with three doctor-experts on Covid-19 who are in the field, on the front-lines, and are monitoring the latest medical and policy news:

BaSadeh (In the field) with Covid-19: Experience and Expertise
A Conversation with Temple Beth Zion Members on the Frontlines of the Covid-19 Pandemic

Co-Sponsored by the JCC of Greater Boston and Brookline Interactive Group. Learn about the impact of and science and policy behind our current health crisis and what it can mean for us going forward.

Link here.  Zoom and Facebook Live

Panelists include:

Katherine Gergen-Barnett, MD, is the Vice Chair of Primary Care Innovation and Transformation and the Program Director in the Department of Family Medicine at Boston Medical Center (BMC).

Rebecca Weintraub, MD, is a Hospitalist and Associate Physician at Brigham and Women’s Hospital. She is an Assistant Professor at Harvard Medical School in the Department of Global Health and Social Medicine.

Asaf Bitton, MD, is a Practicing primary care physician, public health researcher, and health systems innovation leader, Executive Director of Ariadne Labs at Brigham & Women’s Hospital and Harvard T.H. Chan School of Public Health

You may have read Dr. Bitton’s post on March 13th, “Social Distancing: This Is Not a Snow Day,” which was covered nationally on the front end of the crisis as a vital guideline, especially for families navigating rules with their children at home.

Moderated by:
Me and our rabbi, Rabbi Claudia Kreiman, Senior Rabbi Temple Beth Zion

Medical and science topics:

The progress on testing for infection and antibodies; the connection between antibodies and immunity; explanation of vaccines and production; the risk factors in terms of pre-existing conditions and socio-economic conditions; updates on effects and precautions.

Policy updates: How are we doing now? What are the likely national, state, local policies over the next few months? What are the best policies? And what are best social practices? What should wb

Link here.

 

 

Blame China

(Tune of South Park, see link below…)

Times have changed
Pandemic getting worse
Kill off our grandparents
To lift this economic curse
Should we blame Trump’s government?
For gutting the NSC?
Or should we blame the lies of Fox TV?

No, blame China, blame China…

… This is no defense of China overall. But they gave us sufficient notice to act in January and February. Timeline link: China warned WHO of outbreak on Dec. 31, 2019.
Jan 7: China identified novel virus
Jan 11: China records first death
Jan 23: China placed Wuhan under quarantine

 

A fork in the road when there’s no forking road to fork.

This feels like a fork in the road in American history.

A time when millions of people really would march on the street and demand change.

At precisely the time we can’t march anywhere.

And I wonder if, on some level, that’s a factor in their bottomless brazenness.

How can there be social protest in a time of social distance?

Grades, Law, and Love in the Time of Pandemic: Pass/Fail with Written Evaluations

On Friday, I sent my first-year students an email titled “Law and Love in the Time of Pandemic.” I had sent them an anonymous survey about grades, asking for their thoughts on whether to keep letter grades or switch to pass/fail. I received 60 survey responses and at least two dozen emails from current (as well as former) students, and they were evenly split. (The ranked-choice voting was also evenly divided along a spectrum of five options, roughly 20% each). I appreciated how candidly, respectfully, and openly they shared – both anonymously and non-anonymously. A lot of students are struggling out there, in ways professors can imagine, and in ways professors might not imagine. Going home for some is easy. For others, going home is much harder, and some cannot get home or have no family home to return to.

Tonight, I read Jonathan Adler’s thoughtful post “Grading in the Time of Coronavirus” on Reason. I have a lot of respect for Jonathan and his valid points. His bottom line: “A better alternative is to allow students pass/no-credit option (either before, or even after, receiving their grades).” 

My bottom line: The better alternative is mandatory Pass/Fail, with a formal requirement that professors write a reasonable amount of short letters of evaluation for students who excelled on the exam and/or performed well despite particularly challenging situations. They can be used like mini-letters of recommendation if the student so chooses.

(As a compromise, I would be open to Honors/Pass/Fail. I find it only a second-best, but better than pass-fail without sufficient faculty participation in written evaluations).

Continue reading “Grades, Law, and Love in the Time of Pandemic: Pass/Fail with Written Evaluations”

Social Distancing: This is Not a Snow Day

Our friend Asaf Bitton, director of Ariadne Labs/Harvard Medical School, offers this advice in a thorough and insightful post:

By Asaf Bitton, MD, MPH

I know there is some confusion about what to do next in the midst of this unprecedented time of a pandemic, school closures, and widespread social disruption. As a primary care physician and public health leader, I have been asked by a lot of people for my opinion, and I will provide it below based on the best information available to me today. These are my personal views, and my take on the necessary steps ahead.

What I can clearly say is that what we do, or don’t do, over the next week will have a massive impact on the local and perhaps national trajectory of coronavirus. We are only about 11 days behind Italy and generally on track to repeat what is unfortunately happening there and throughout much of the rest of Europe very soon.

At this point, containment through contact tracing and increased testing is only part of the necessary strategy. We must move to pandemic mitigation through widespread, uncomfortable, and comprehensive social distancing. That means not only shutting down schools, work (as much as possible), group gatherings, and public events, but also making daily choices to stay away from each other as much as possible to Flatten The Curve below.

 

Our health system will not be able to cope with the projected numbers of people who will need acute care should we not muster the fortitude and will to socially distance each other starting now. On a regular day, we have about 45,000 staffed ICU beds nationally, which can be ramped up in a crisis to about 95,000. Even moderate projections suggest that if current infectious trends hold, our capacity (locally and nationally) may be overwhelmed as early as mid-late April. Thus, the only set of strategies that can get us off this concerning trajectory are those that enable us to work together as a community to maintain public health by staying apart.

The wisdom, and necessity, of this more aggressive, early, and extreme form of social distancing can be found here. I would urge you to take a minute to walk through the interactive graphs — they will drive home the point about what we need to do now to avoid a worse crisis later. Historical lessons and experiences of countries worldwide have shown us that taking these actions early can have a dramatic impact on the magnitude of the outbreak. So what does this enhanced form of social distancing mean on a daily basis, when schools are cancelled?

Here are some steps you can start taking now to keep your family safe and do your part to avoid a worsening crisis:

1. We need to push our local, state, and national leaders to close ALL schools and public spaces and cancel all events and public gatherings now.

A local, town by town response won’t have the adequate needed effect. We need a statewide, nationwide approach in these trying times. Contact your representative and your governor to urge them to enact statewide closures. As of today, six states have already done so. Your state should be one of them. Also urge leaders to increase funds for emergency preparedness and make widening coronavirus testing capacity an immediate and top priority. We also need legislators to enact better paid sick leave and unemployment benefits to help nudge people to make the right call to stay at home right now.

2. No kid playdates, parties, sleepovers, or families/friends visiting each other’s houses and apartments.

This sounds extreme because it is. We are trying to create distance between family units and between individuals. It may be particularly uncomfortable for families with small children, kids with differential abilities or challenges, and for kids who simply love to play with their friends. But even if you choose only one friend to have over, you are creating new links and possibilities for the type of transmission that all of our school/work/public event closures are trying to prevent. The symptoms of coronavirus take four to five days to manifest themselves. Someone who comes over looking well can transmit the virus. Sharing food is particularly risky — I definitely do not recommend that people do so outside of their family.

We have already taken extreme social measures to address this serious disease — let’s not actively co-opt our efforts by having high levels of social interaction at people’s houses instead of at schools or workplaces. Again — the wisdom of early and aggressive social distancing is that it can flatten the curve above, give our health system a chance to not be overwhelmed, and eventually may reduce the length and need for longer periods of extreme social distancing later (see what has transpired in Italy and Wuhan). We need to all do our part during these times, even if it means some discomfort for a while.

3. Take care of yourself and your family, but maintain social distance.

Exercise, take walks/runs outside, and stay connected through phone, video, and other social media. But when you go outside, do your best to maintain at least six feet between you and non-family members. If you have kids, try not to use public facilities like playground structures, as coronavirus can live on plastic and metal for up to nine days, and these structures aren’t getting regularly cleaned.

Going outside will be important during these strange times, and the weather is improving. Go outside every day if you are able, but stay physically away from people outside your family or roommates. If you have kids, try playing a family soccer game instead of having your kids play with other kids, since sports often mean direct physical contact with others. And though we may wish to visit elders in our community in person, I would not visit nursing homes or other areas where large numbers of the elderly reside, as they are at highest risk for complications and mortality from coronavirus.

Social distancing can take a toll (after all, most of us are social creatures). The CDC offers tips and resources to reduce this burden, and other resources offer strategies to cope with the added stress during this time.

We need to find alternate ways to reduce social isolation within our communities through virtual means instead of in-person visits.

4. Reduce the frequency of going to stores, restaurants, and coffee shops for the time being.

Of course trips to the grocery store will be necessary, but try to limit them and go at times when they are less busy. Consider asking grocery stores to queue people at the door in order to limit the number of people inside a store at any one time. Remember to wash your hands thoroughly before and after your trip. And leave the medical masks and gloves for the medical professionals — we need them to care for those who are sick. Maintain distance from others while shopping — and remember that hoarding supplies negatively impacts others so buy what you need and leave some for everyone else. Take-out meals and food are riskier than making food at home given the links between the people who prepare food, transport the food, and you. It is hard to know how much that risk is, but it is certainly higher than making it at home. But you can and should continue to support your local small businesses (especially restaurants and other retailers) during this difficult time by buying gift certificates online that you can use later.

5. If you are sick, isolate yourself, stay home, and contact a medical professional.

If you are sick, you should try to isolate yourself from the rest of your family within your residence as best as you can. If you have questions about whether you qualify or should get a coronavirus test, you can call your primary care team and/or consider calling the Massachusetts Department of Public Health at 617.983.6800 (or your state’s department of health if you are outside of Massachusetts). Don’t just walk into an ambulatory clinic — call first so that they can give you the best advice — which might be to go to a drive-through testing center or a virtual visit on video or phone. Of course, if it is an emergency call 911.

Continue reading “Social Distancing: This is Not a Snow Day”