“Faithful Execution” and Presidential Power, forthcoming 2019

Andrew Kent, Ethan Leib and I will be publishing this paper, “‘Faithful Execution’ and Article II” in the Harvard Law Review this spring. We explored for the first time the deep and overlooked historical origins of the two “faithful execution” clauses of the Constitution – in the Take Care clause and in the Presidential Oath – through centuries of English and colonial American usage for officers, up through the Convention and Ratification Debates. These clauses are cited by many to support expansive presidential power, but in historical context, their original meaning was to limit presidential discretion with duties of care, loyalty, diligence, and good faith that closely resemble modern fiduciary duties.

The article has implications for many presidential powers that have become relevant in recent years (and not just for Trump, but also for Clinton, Bush, and Obama, too). For example, the duty of faithful execution would limit the pardon power, the firing/removal power, the power to suspend and not to execute statutes, and the abuse of power to self-deal. This historical evidence also may suggest that modern private fiduciary duties emerged from English statutes imposing duties of care and loyalty on public officials.

The full paper is linked above. The abstract is below. An earlier Washington Post op-ed from last March more concisely set out an earlier suggestion of these historical links, but this research alters that hypothesis with deeper research.

Article II of the U.S. Constitution twice imposes a duty of “faithful execution” on the President, who must “take Care that the Laws be faithfully executed,” and take an oath or affirmation to “faithfully execute the Office of President.” These clauses are cited often, but their background and original meaning have never been fully explored. Courts, the executive branch, and many scholars rely on one or both clauses as support for expansive views of presidential power, for example, to go beyond standing law to defend the nation in emergencies; to withhold documents from Congress or the courts; or to refuse to fully execute statutes on grounds of unconstitutionality or for policy reasons.

This Article is the first to explore the textual roots of these clauses from the time of Magna Carta and medieval England, through colonial America, and up to the original meaning in the Philadelphia Convention and ratification debates. We find that the language of “faithful execution” was for centuries before 1787 very commonly associated with the performance of public and private offices—especially those in which the officer had some control over the public fisc. “Faithful execution” language applied not only to senior government officials but also to a vast number of insignificant officers, too. We contend that it imposed three core requirements on officeholders:

(1) diligent, careful, good faith, and impartial execution of law or office;

(2) a duty not to misuse an office’s funds and or take unauthorized profits; and

(3) a duty not to act ultra vires, beyond the scope of one’s office.

These three duties of fidelity look a lot like fiduciary duties in modern private law. This “fiduciary” reading of the original meaning of the Faithful Execution Clauses might have important implications in modern constitutional law. Our history supports readings of Article II of the Constitution that limit presidents to exercise their power in good faith, for the public interest, and not for reasons of self-dealing, self-protection, or other bad faith, personal reasons. So understood, Article II may thus place some limits on the pardon and removal powers, for example. The history we present also supports readings of Article II that tend to subordinate presidential power to congressional direction, limiting presidential non-enforcement of statutes for policy and perhaps even constitutional reasons, and perhaps constraining agencies’ interpretation of statutes to pursue Congress’s objectives. Our conclusions undermines imperial and prerogative claims for the presidency, claims that are sometimes, in our estimation, improperly traced to dimensions of the clauses requiring faithful execution.

2018, Part I: My outlook and viewing guide for the House

The bottom line for me is that getting to 218 in the House will be enough for me Tuesday night, because 218, a majority, is enough to control every House committee, and thus control over subpoenas backed by the force of law, and enough to start public hearings under oath. And if Trump fires Mueller or Rosenstein, those committees could hire either or both to continue their investigation with sufficient legal tools. I expect Sessions to be gone by January 2019, though I’d guess that Mueller is far along that as long as he is on the job in early 2019, he can reveal enough about Trump’s criminal conspiracy. But a House committee is a solid back-up.

So here is the path I see to 218, a net of +23 seats on top of the Dems’ current 195, based on the timing of when polls close.

I have created a list of top Democratic pick-up opportunities by combining 3 sources: the Cook Political Report’s likely/leaning/toss-ups; the 25 districts won by a GOP representative but also by Hillary Clinton; and FiveThirtyEight’s aggregated polling. The list includes a total of 52 districts, with 32 as “key pick-up opportunities” for Democrats, plus three vulnerable districts for Democrats.

The Cook Political Report labels 18 GOP seats that are currently “likely” or “lean Democratic.” There are two Dem seats that are currently labeled “likely” or “lean Republican.” Let’s say that’s a net +16. These are marked “L.”

Meanwhile there are 30 GOP seats that are labeled “toss-up” and just 1 Dem seat that’s a toss-up. If the Democrats win most of their “likely/lean Dem” seats (let’s say net +13), and a third of their toss-ups (+10), that’s enough for a majority. These are marked “T.”

There are 25 House seats that Republicans won but Hillary Clinton also won in 2016. Those should be especially winnable — and just about the right number to win the House, even if the Dems lose their two vulnerable seats.  On this list, they are marked “H.”

And I add a few additional states identified as roughly comparable pick-up opportunities by FiveThirtyEight.com, which I label with the site’s percent chance of Dem pick-up. This list of 53 districts is roughly organized by closing times, from East to West.

Again, the code is: Bold, key pick-up opportunity (538 has chance > 50%) = 32 total.

L: Likely/Lean. T: Toss-up. H: Hillary won the district. Fraction: 538’s chance of Dem win.

CLOSING 6pm-7pm ET:
FL-15 Carlson/Spano: T (3/7)
FL-26 Powell/Curbelo: T/H (5/9)
FL-27 Shalala: L/H (6/7)

VA-02 Luria/Taylor: T (1/3)
VA-07 Spanbarger/Brat: T  (3/7)
VA-10 Wexton/Comstock: L/H (8/9)
GA-06 McBath/Handel: T (1/2)
GA-07 Bourdeaux/Woodall (1/6)
KY-06 McGrath/Barr: T (4/9)
CLOSING 7:30pm ET
OH-12 O’Connor/Balderson: T (1/3)
NC-09 McCready/Harris: T (4/9)
NC-13 Manning/Budd: T (3/8)
CLOSING 8pm-9pm ET
ME-02 Golden/Poliquin: T (5/8)
NY-02 Shirley/King (2/7)
NY-19 Delgado/Faso: T (3/5)
NY-22 Brindisi/Tenney: T (1/2)
NY-24: Balter/Katko: H (1/6)
NY-27: McMurray/Collins (1/4)

NJ-02: Van Drew/Grossman L (49/50)

NJ-03 Kim/MacArthur: T (5/9)

NJ-07 Malinowski/Lance: T/H (7/9)
NJ-11: Sherrill/Webber L (6/7)

PA-01 Wallace/Fitzpatrick: T/H (4/7)

PA-05: Scanlon L/H (99/100)
PA-06: Houlihan L/H (99/100)
PA-07: Wild/Nothstein L/H (19/20)
PA-10 Scott/Perry: T (1/3)
PA-17: Lamb: L (19/20)
MI-08 Slotkin/Bishop: T (2/3)
MI-11: Stevens/Epstein: L (4/5)
IL-06 Casten/Roskam: L/H (1/2)
IL-14 Underwood/Hultgren: T (7/10)
MN-02 Craig/Lewis: L (6/7)
MN-03 Phillips/Paulsen: L/H (6/7)
IA-01 Finkenauer/Blum: L (19/20)
IA-03 Axne/Young: T (7/10)

KS-02 Davis: T (5/8)
KS-03 Davids/Yoder: L/H (6/7)
TX-07 Fletcher/Culberson: T/H (1/2)
TX-23 Ortiz-Jones/Hurd H (2/9)
TX-32 Allred/Sessions: T/H (3/8)
CO-06 Crow/Coffman: L/H (8/9)
NM-02 Torres-Small: T, (4/9)
CLOSING 10p-11pm ET
UT-04 McAdams/Love: T  (5/8)
AZ-02 Tipirmeni: L/H (2/9)
WA-08 Schrier/Rossi: L/H (2/3)
CA-10 Harder/Denham: T/H (7/10)
CA-21: Cox/Valadao: H (1/5)
CA-25 Hill/Knight: T/H (5/8)
CA-39 Cisneros/Kim: T/H (4/7)
CA-45 Porter/Walters: T/H (5/8)
CA-48 Rouda/Rohrabacher: T/H (5/9)
CA-49 Levin/Harkey: L/H (29/30)
Dem seats at risk:
PA-14
MN-1
MN-8

 

 

 

Thoughts after the Pittsburgh and Louisville Shootings

I posted this on Facebook last Monday morning right after the Pittsburgh shooting. I’m belatedly posting here:

There is so much to say that is too hard to say, but it must be said. We mourn, and we work harder than ever to fight the fascists.

First, I want to note another racist shooting earlier this week in Kentucky that has been overlooked. A white supremacist executed a black grandfather in front of his grandson in a grocery store, then shot a black woman in parking lot, declared his racism, after trying to break into a black church. You could read about them in the link here.

It is time to be honest and loud about something many of us have known for a long time, but have been too polite or too collegial to say.

1. We already knew Trump is a racist, but we also need to speak out about his anti-Semitism.

2. Trumpism is fascism.

3. Trump engages in stochastic terrorism.

4. We need to explain this to people: to Trump supporters, to Republicans who think they can separate their party from Trumpism, and to many people who engage in “both sides” false equivalence. Enough.

It’s time to recognize that we are living in Weimar America. There is a fascist in the White House, enabled by Vichy Republicans. Are there good Republicans out there? Absolutely. But like everyone else, they need to speak out and organize against Trump. The New Hampshire primary and the Iowa caucus of 2020 are just 14 months away. I’m talking to my friends about Democratic presidential candidates. If you’re a Republican who is not yet talking about whom to support against Trump in 2020, then you are enabling fascism.

I’ve been posting about “stochastic terrorism” over the past year. “Stochastic terrorism” is defined as “the public demonization of a person or group resulting in the incitement of a violent act, which is statistically probable but whose specifics cannot be predicted.” We had three episodes of stochastic terror last week, affected by Trump’s racist and dehumanizing politics. I’ll be writing more about Trump, his anti-Semitic signals, and the fine line between white nationalism and fascism soon.

But the bottom line is that we Jews have a special responsibility. The media might overlook the racist execution of black people, and it certainly participated in the fear-mongering about the caravan of brown people (asylum-seekers, like our families fleeing Nazi Europe, like Danya’s grandparents, like my great-grandfather fleeing Russia to Alabama. We Jews were once considered brown and dirty, too. And to many more in America than we’d like to think, we are still brown and dirty and sub-human). But the media listens to us more than they listen to the voices of black and brown people.

We aren’t politicizing a tragedy.

It was already political.

It was political when Trump retweeted an anti-Hillary post by an anti-Semite with a huge Jewish star on a background of dollar bills.

It was political when he and his sons embraced “the Deplorables” and the symbol for the white nationalists, Pepe the Frog, a signal of racist and anti-Semitic hate.

It was political when Trump wouldn’t disavow David Duke.

It was political when his closing campaign ads demonized a series of specific Jewish individuals – Soros, Yellin, Blankfein – as evil Wall St. types.

It was political when Charlottesville marchers chanted “Jews will not replace us,” and Trump said they were “good people” on both sides.

It was political when he continued to demonize Soros and (((globalists))), even on the day the MAGA bomber was arrested last week in Florida.

[update: The day immediately after visiting Pittsburgh,Trump continued to fear-monger and spread the same conspiracy theory that the Pittsburgh shooter cited, that Soros was funding the caravan.]

And it was political when he called for the death penalty for the innocent Central Park Five.

And it was political when he made the dehumanization of Muslims and Latinos his campaign platform.

And it was political when he said Mexicans coming to American were “rapists,” “drug-dealers,” and “criminals.”

It was political when he demonizes peaceful black protesters as “sons of bitches.”

I could go on and on.

The demonization of Muslims, blacks, Latinos, and Jews – the Trump platform – has always been political. And events like Louisville and Pittsburgh and the MAGA bomber are inevitable. We aren’t politicizing them. We are saying, “Stop politicizing us – our souls, our lives, our parents, our grandparents, our kids, our right to exist. ENOUGH.”

When they go low, we still need to go high. But going high now means LOUD AND DIRECT AND FIERCE AND FEARLESS.

Fight back with dignity. Let’s show the neo-Nazis that they are right to fear Jewish power. The political power of speech, the power of our experience over 2000 years surviving hate and only getting stronger, the power of organization, the power of the vote, the power of public service, the power of supporting even more asylum seekers and refugees from all over the world. Thank God for those who protected us, and may we bless the memories of those many before us who were unprotected. It’s time to honor those memories by fighting back for ourselves and our demonized and brutalized brothers and sisters.

Don’t just vote. Volunteer. Help refugees. Organize. Make calls. Write. Speak out.

Tzedek tzedek tirdof. V’im lo achshav, matai?

Justice, justice, shall you pursue.

If not now, then when?

RT (Russian TV) is on the attack on #MeToo?

I just received this email from someone representing herself as an RT journalist. I can’t verify if she is who she says she is, but this is the redacted invitation:

Dear Mr. Shugerman, I am writing on behalf of RT TV – 24/7 English language news station in Moscow broadcasting internationally. My name is XXXX, I am a producer of the panel discussion program called CrossTalk. I have the honor to invite you to our program.

We’re recording it on Tuesday, September 25 at 10 AM ET Details on the topic are as follows: ? What does the movement tell us about the confirmation process of Brett Kavanaugh? Have we given up on due process and the presumption of innocence? Is an accusation now equivalent to guilt? Does an accuser now have the right to determine how an accused is investigated? Nominally speaking, anyone can accuse anyone else of wrongdoing. However, what responsibilities should an accuser accept when making an accusation?

Agree or disagree: The movement is causing deep, dangerous, and maybe irreversible damage to society. It goes without saying that we will be grateful to have you on the program! Looking forward to hearing from you. Thank you very much in advance! 

— Sincerely, XXXX Producer CrossTalk RT [phone redacted]

 

A Switch in Time Could Save 10

Dear #NeverTrumpers,

First, I’m sorry the “open letter” format is a cliché. But I sincerely mean to engage conservative Never Trumpers – many of whom I regard as modern day heroes – in dialogue here. I’m sincerely hoping for some reconciliation, in a season for me and many of us of reconciliation and moving forward. The vote on Judge Kavanaugh represents an opportunity for compromise – or another step of escalation. At the end, I propose a long-term compromise to institutionalize bipartisanship and avoid escalation.

During President Franklin Roosevelt’s battle with the Supreme Court, he proposed adding seats to the Court. When two moderate Justices switched – just in time – from striking down the New Deal to upholding it in 1937, it was said, “A switch in time saved nine.”

Now, in 2018, a switch in time could save ten, as opposed to starting a cycle of court-packing that would, like Spinal Tap, “go to eleven,” and then go beyond eleven each time a party had unified control of White House and Senate.

The bottom line is that it’s not too late to pause before we all break the Court in a vicious cycle. Confirming Kavanaugh will lead to three regrettable results:

  1. Confirming Kavanaugh increases the likelihood that Trump gets re-elected.
  2. Confirming Kavanaugh delegitimizes any conservative wins on the Court.
  3. Confirming Kavanaugh increases the likelihood that the Supreme Court’s legitimacy will be permanently destroyed, leading to an endless cycle of Court-packing.

Let’s set aside the merits of Kavanaugh’s qualifications, but let’s at least acknowledge that the process has not been open and that there are many unanswered questions.

First: Supporting Kavanaugh means helping Trump get re-elected. Let’s be clear: Trump can get re-elected the same way he got elected in 2016. A white nationalist base got him the nomination, but he won the election because the evangelicals and pro-business elites held their noses and voted for judicial picks. It was arguably the most important factor keeping this odd coalition together. Conservatives remain positive about Trump’s job performance because of Gorsuch and judicial nominations.

Can you be a Never Trumper if you support the central goals of the Trump administration? It’s not enough to speak out against the worst and most obvious evils, like family separation. At some point, you have to oppose some of the proposals that you would otherwise support. Otherwise, what makes you “Never Trump” as opposed to someone who says they oppose Trump but is happy to get whatever wins you can from Trump?

The tax cut and the ACA repeal had the same quandary: If you want to claim the mantle of “Never Trump,” can you support the administration’s agenda? McCain’s legacy will be his speech condemning the partisan procedural unfairness of the ACA repeal, followed by his  thumbs-down vote. You can quibble with the details, but that’s as good of an example of a NeverTrump commitment I can recall – and there haven’t been many others. Actual Never Trump actions – as opposed to speeches, thoughts, and prayers – are sadly rare.

If you really think his presidency is illegitimate or an existential threat to conservatism or the nation, can you cherry-pick wins if those wins increase the chance Trump deepens his grip on power?

That’s not being NeverTrump. That’s Trump-portunism.

By helping Trump continue to re-shape the courts, Republicans are keeping Trump popular among their own base. At some point, you have to make a choice: Are you really Never Trump? Or are you But Gorsuch/But Kavanaugh?

Unfortunately, supporting Kavanaugh means supporting Trump. You cannot compartmentalize the two. If your true goal is to reduce the chance Trump remains in power, one of the clearest ways is to show that he cannot deliver for his coalition. And if your reasoning is that Kavanaugh stands against Trumpism, that’s hard to square with Kavanaugh’s remarkable record embracing the expansion of presidential power. If you are truly Never Trump, demand a nominee who would be a check on presidential excesses, from either party’s president.

I have to admit I wonder if the shoe were on the other foot, what would I do? What if an odious racist Dixiecrat or a war-mongering Democrat were appointing liberal justices? I care about abolishing the death penalty about as much as evangelicals care about overturing Roe v. Wade. I think that I could recognize that the survival of our democracy is worth a sacrifice of abolishing capital punishment, though I care deeply about that issue. Opposing an existential threat to the country is worth more than a seat on the Court and a few Pyrrhic judicial decisions, even on core principles.

The claim of being “Never Trump” rings hollow if you support his agenda and his nominees. It actually sounds more like “Maybe Trump.” Or “But Gorsuch, but Kavanaugh.” It’s time to decide which side you’re on.

  1. Confirming Kavanaugh delegitimizes any conservative wins on the Court.

If your goal is overturning Roe v. Wade, or some other conservative jurisprudential goal, this isn’t the way to create a long-lasting precedent, and this isn’t the way for public to accept such decisions as legitimate. Is your goal to win decisions on paper as soon as possible, or is it to have them be accepted broadly as law and to hold up over time?

Chief Justice Rehnquist wrote in Payne v. Tennessee 1991 that precedents “decided by the narrowest of margins” (i.e., 5-4 decisions) should be accorded less status of precedent than decisions by a wider margin. The same principle applies to 5-4 decisions, but all the more so to conservative wins after illegitimate appointments. These wins will be short-lived, because…

  1. Confirming Kavanaugh increases the likelihood that the Supreme Court’s legitimacy will be permanently stained, leading to an endless cycle of Court-packing.

What happens after 2018 or 2020? At some point, the Democrats will come back into power and hold the presidency and both Houses. There are two paths. If Kavanaugh is appointed, it seems inevitable that Democrats will add two seats to the Court. And Republicans will do the same when they hold unified power. A vicious cycle of court packing will continue, and it’s not clear when it will end. The legitimacy of the Court will have been destroyed. This is not a sustainable path. This cycle did not begin with Kavanaugh, just as court packing will not begin when Democrats add seats to the Court in the 2020s. It’s not helpful to place blame for who started this. But the Kavanaugh appointment is a kind of court-packing in itself by a president facing hard evidence of felonies and high crimes and misdemeanors.

What can be done now? Two proposals:

Create a 10th seat on the Court by a bipartisan vote, and confirm someone the Senate Democrats propose along with Kavanaugh. (It does not have to Judge Merrick Garland.) Even numbers have many advantages. In fact, the original Supreme Court had six Justices for about 20 years, and it functioned well. The Supreme Court had 8 or 10 Justices at other points in our history, and it promoted consensus. A split vote leaves the lower court’s decision standing – so that also promotes federalism or regionalism if there is no consensus of, say, 5-3, to decide the case.

Then institute a new approach to Senate advice and consent, borrowing from the merit selection panels that have worked in many states, as I’ve described in my book The People’s Courts. Those panels create a list of three potential nominees, and the governor picks one. As the “advice” stage, a bipartisan panel of Senators would have to agree by consensus– or maybe by a two-thirds vote – for a slate of three options, and if the President goes outside that list, the Senate commits not to consent. The panel could be the Judiciary Committee (not famous for its bipartisan cooperation, but alas…) If the Senate panel cannot agree to a short list by consensus, the president would be unconstrained. That might give the members of the commission of the same party as the president a reason to play hardball, but the point of this proposal is to create a long-term incentive to cooperate, and the party in power would at least consider the benefits of legitimacy by adhering in good faith to this process.

Maybe I’m being naive [correction: I’m surely being naive], but it’s a practical improvement on our current mess.  There is no need for a constitutional amendment, as long as the Senate commits to this bipartisan agreement long-term and enforces it by withholding consent if a president doesn’t cooperate. This new process would entail a sacrifice by the party in power, but that sacrifice pays off when that party is out of power, and most importantly, it has a chance of restoring the rule of law.

The Kavanaugh vote could be a turning point of court-packing leading to a cycle of court-packing. Or it could be a turning point for a new bipartisan approach.

If you claim to be a Never Trumper, now is the moment of truth. If you really think Trump is a threat to the republic, then is the price of the republic a seat on the Supreme Court? You lose your claim to be Never Trump if you support his agenda, help deliver on his promises, and increase his chances of staying in power. And confirming Kavanaugh is confirming Trump

Kavanaugh’s false claim on independent agencies

Kavanaugh: “I did not cast doubt on Humphrey’s Executor.” That’s at 7:10:19 of this clip, and that’s just straight-up false. FALSE. Kavanaugh wrote 12 pages of doubt-casting on Humphrey’s, and that means he has an extreme view of presidential power.

We can quibble about whether Kavanaugh’s explicit, remarkable doubt-casting on Humphrey’s in two cases means he’d overturn Humphrey’s. But there’s no doubt that his statement to Sen. Chris Coons was false. Coons entered my explanation into the record.

Why is this important? It’s more than just about the President’s power to fire Mueller just because he wants to. Remember when Trump criticized the Fed for raising interest rates… and not being more helpful to him? At least the Fed and other key independent agencies are insulated from presidential firing and other presidential manipulation. But if the Supreme Court overturns Humphrey’s and adopts Kavanaugh’s extreme unitary executive theory (which is supported by Scalia mythology but not supported by actual history, as I explain here), then Trump could fire the Fed Board of Governors and  install a new slate of cronies who would benefit him politically and personally. The same thing could happen on a number of powerful agencies. It’s bad.