Category: Blog

Executive Privilege

Executive Privilege

This week’s edition of Cline on the Constitution

Executive Privilege

It seems every year we have at least one descriptive term that evolves into a sacrosanct badge of being politically correct.  We’ve had “diversity”, we’ve had “homeless”, and a number of others it wouldn’t take long to conjure. The terms are over-used, frequently misused and so ill-defined they end up obfuscating reality. Their introduction into a conversation demand thoughtfulness be suspended. After a while, one develops a sense of nausea whenever the terms are uttered; truly they become an insult to the ear of anyone who chooses to not define society in accordance with numerical niceties.      

And now we have “transparency.” 

What exactly is transparency?  To some it means disclosure of all information all the time to every living soul regardless of who is hurt, what is diminished, and whether the information is accurate or complete.  Private conversations, the frank exploration of ideas, is considered anathema to the God of “Transparency”.

For anyone in leadership, especially in an executive position, whether it is government or business, there is a basic need to have private conversations with trusted staff. The ability to try out new concepts, to explore radical solutions, whether the ideas are adopted or not, is part of the creativity we should expect of leaders.  However, in these times of instantaneous opinion, the quickest death to good ideas can be “transparency.” Some conversations, some orders, some plans need to kept private, indeed they need to be kept, yes, let’s use that other much maligned term, (gasp!)“Secret.” (Gasp again!)    

This is what Executive Privilege is all about and it is recognized in the realm of constitutional law.

The President has asserted Executive Privilege regarding certain portions of the Mueller Report as well as the underlying evidence for the Muller Report.  Breathlessly certain members of Congress who demanded the information are crying out that we are, as a result, in a Constitutional Crisis.  

Well, not really.  

Let’s explore Executive Privilege and its Constitutional basis.

Article II of the Constitution vests in the President of the United States the “Executive Power.” Contrary to some loose commentary, Congress does not have “oversight” of this function.  There is no constitutional basis for an assertion that one branch of government has “oversight” over a co-equal branch of government regarding their core powers. They may investigate.  They may hold hearings. Within limits.  But they do not have “oversight” of the exercise by the President of the “Executive Power.”  

And in the exercise of the Executive Power, the Supreme Court recognizes the existence of an “Executive Privilege” over confidential material and an unwarranted intrusion upon Executive Privilege violates the Separation of Powers.

As will be shown later, however, the Privilege is not absolute, no more than any power vested in a branch of government is absolute.   However, the Privilege is entitled to “great deference” as Chief Justice Burger stated in U.S. v. Nixon.

Burger went on in the U.S. v Nixoncase to describe the basis for the Privilege:

“The valid need for protection of communications between high Government officials and those who advise and assist them in the performance of their manifold duties; the importance of this confidentiality is too plain to require further discussion. Human experience teaches that those who expect public dissemination of their remarks may well temper candor with a concern for appearances and for their own interests to the detriment of the decision-making process.”

One has to pause and contemplate the damage to such processes done to the President by leaks of confidential conversations even with heads of state by unscrupulous government employees virtually from the President’s first day in office.  One of Attorney General’s Barr’s comments during the hearings before the Senate and his description of the motives of leakers is apropos.  It is one way, he said, for subordinates to control their superiors on matters of policy. Consider the impact on the ability of any Executive, much less a President, to carry out his policies if every word uttered in private finds its way to the headlines the next morning.

Chief Justice Burger went on to say, “The expectation of a President to the confidentiality of his conversations and correspondence, like the claim of confidentiality of judicial deliberations, for example, has all the values to which we accord deference for the privacy of all citizens and, added to those values, is the necessity of protection of the public interest in candid, objective, and even blunt or harsh opinions in Presidential decision making.  A President and those who assist him must be free to explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privately.”  

And those considerations, Justice Burger says, provide the basis for a “presumptive privilege” for Presidential communications.

United States v. Nixon, decided in 1974, grew out of the infamous “Saturday Night Massacre.”  A special prosecutor sought tapes of conversations that occurred in the oval office.  President Nixon ordered him fired.  The Attorney general refused, and he and his assistants resigned rather than comply.  Robert Bork was third in line at the Department of Justice and he carried out the orders to fire the Special Prosecutor. A new one was appointed, but then he too demanded the material and took the matter to the Supreme Court.

The primary issue for the Supreme Court was whether the courts could decide the case at all without violating Separation of Powers. Harkening all the way back to Marbury v. Madison, decided at the beginning of the Jefferson administration, the Supreme Court ruled they could, indeed, decide the issue as a question of law without infringing on the Separation of Powers. But in reaching this conclusion they spent considerable time assessing the basis and scope of Executive Privilege. While there have been other cases which addressed the issue, U.S. v Nixon is still the leading case on the principle.  

The court used a balancing test assessing the need of the criminal justice system against the assertion of an “absolute” privilege. 

However, their ruling was qualified.  They repeatedly pointed out that the assertion of Executive Privilege by the Nixon administration was a general one and that the President had not claimed confidentiality based upon a need to protect “military, diplomatic or sensitive national security secrets.”  (There’s that word again!)

There is a clear implication that if such an assertion had been made, the court may have upheld the declaration of Privilege.  

There are two more interesting aspects to this:  First, the Court appended a proviso that a federal court would take care that the information was reviewed and assessed in camera, out of the public eye, where the confidentiality of the material could be protected.  And second, in that case the interests of a criminally accused was in play and that brought about considerations of Due Process and the other Constitutional rights of someone charged with a crime. 

As it relates to the Mueller report, there are a few distinctions:

First Congress is pursuing a civil subpoena process which takes the balancing test for criminal matters off the table.

Second, the information is actually from a Special Prosecutor.  It is not being withheld from him like in the Nixon case.  Second, a Court, not the Congress, may have the right to inspect the confidential material, assuming the President doesn’t provide justification, such as national security. In the later instance, since it is a core Presidential function, even the Court could be excluded from examining the information under the Separation of Powers doctrine.  

Lastly, regarding the Mueller report, at the very least, the Court may find that while confidential Grand Jury information may be assessed by the Court, that does not mean that a leaky Congressional Committee, where confidentiality goes to die, has any right to pierce the Privilege. 

For more articles on the Constitution and other writings by Phil Cline, visit philcline.com     

Impeachment

Impeachment

The Impeachment of a President

Calls for the impeachment of President Trump have been circulated since before he assumed office. Any pretext seems to suffice.  If one is shown to be groundless, another is quickly adopted.  

With the Democrat party now in control of the House of Representatives, and a lineup of committee chairpersons right out of the Star Wars Bar Scene, reckless talk of impeachment in the halls of Congress and on the cable opinion shows have reached a fevered pitch. While much of the talk is silly and petty, the subject is serious business.

What does the Constitution say about impeachment?

Impeachment was debated on and off through the four months of the constitutional convention in Philadelphia where the framers of our constitution were creating a government of Checks and Balances.  Not only did these wise men insist on the Separation Powers to obviate the concentration of power in too few hands, but they also wanted a means for one branch of government to be able to Check the power of another branch. 

The impeachment process was a means to Check the power of the Presidency.  The drafters wanted a strong president but not a king and authorizing the impeachment of the President, even if limited to the rarest of circumstances, insured we would never have a king. 

For historical reasons the framers adopted a specific structure for the use of the impeachment procedure. For impeachment to occur the House of Representatives must vote articles of Impeachment.  The members of the House then present the articles to the Senate. The Senators serve as jurors in the Trial of the President presided over by The Chief Justice of the United States. If convicted of any article there is one and only one punishment. The President is removed from office.

The Federalist Papers inform us Alexander Hamilton and James Madison had two main concerns about the impeachment procedures. 

First they worried about the political process.  Having the matter tried in the Senate they were concerned about the character of a jury made up totally of elected officials.  In other words, politicians.  If the impeachment of the President devolved to a political exercise it would make the President permanently subservient to the Senate. And the need for a strong executive was one reason the original Articles of Confederation were abandoned in favor of the Constitution. 

Their solution was the requirement that articles of impeachment could only originate in the House and fully two thirds of the Senators had to vote for conviction.  In the 1990s Bill Clinton had 54 votes cast in the Senate for his impeachment on one count and 50 on another.  Were it not for the two thirds requirement he would have been removed from the Presidency.  Similarly, Andrew Johnson was acquitted by one vote in 1868.

Second.  The Framers also sought to circumscribe the process by proscribing very narrow grounds for impeachment. The grounds are limited to “Treason, Bribery, or Other High Crimes and Misdemeanors.” The phrase “Other High Crimes and Misdemeanors” confuses even some members of Congress.  What is clear is that the framers abhorred the idea of impeachment being used as a political tool, a process by which the dominant party in Congress removes Presidents because they have the votes and they perceive it is in their political interests to do so.  Establishing a political revolving door of Chief Executives would defeat the very purpose for which the office was created.

The debate concerning the article about impeachment over those hot summer months in 1787 saw the framers consider and reject a number of proposals concerning grounds for impeachment including misfeasance and malfeasance as well as corruption. Each revision served to narrow the definition. And finally they settled on “Other High Crimes and Misdemeanors.”  

“High Crimes and Misdemeanors” does not refer to routine crimes.  For example, a common Drunk Driving charge is a misdemeanor.  That is not the kind of crime the framers were talking about. The term High Crimes and Misdemeanors was taken from old English law.  It was used to describe political offenses against the Crown. 

High Crimes and Misdemeanors contemplate a crime against the State.  The original clause actually said High Crimes and Misdemeanors “against the United States.”  The phrase “Against the United States” was dropped for stylistic reasons by a special subcommittee because it was thought to be a redundancy. 

The road to impeachment is narrow and straight up hill.  It is meant to be difficult and it is.  

As was seen in the impeachment of Bill Clinton, petty politics by petty venal politicians (that time by the other party) won’t result in the removal of the President.  

In pursuing Bill Clinton and after spending 50 million dollars on a special prosecutor, after interrupting the lives of countless people, shaming and vulgarizing society by discussing a stained blue dress in a trial on the Senate floor presided over by the Chief Justice, not one count resulted in a conviction.  It was an ill-advised and unsuccessful attempt to remove a President. And it was an embarrassment for the nation in front of the entire world.

No doubt there are those who wish to see it all happen again.  For the nation’s sake let’s hope not.  Probing every member of the President’s family, including his minor children, all his past business dealings, and, yes, his sexual peccadillos seem to be an obsession of some members of Congress.  Senator Dale Bumpers, during his arguments on the Senate floor defending President Clinton, paraphrased H.L. Mencken.  He pointed out that H. L. Mencken said, “When someone says it’s not about the money, it’s about the money.”  As related to Clinton’s trial in the Senate, Bumpers, said, “When somebody says, it’s not about the sex, It’s about the sex.”  And I, in turn, will paraphrase Dale Bumpers: “When someone says, it’s not about the politics, it’s about the politics.”

There are more pressing matters, at home and abroad, that demand the attention of our nation’s leaders. They need to wake the hell up, quit torturing definitions, and get to it.

For other articles and writings by Phil Cline, visit philcline.com

Electoral College

Electoral College

The Electoral College

In the last segment I addressed the proposal by some candidates for the Presidency to pack the Supreme court. In this segment I will discuss the Electoral College.  There are various proposals by the same candidates to modify it or eliminate it altogether. 

While any proposal to change the Constitution or amend it should be approached with extreme caution, changing or modifying the Electoral College is one idea worthy of debate.

The current proposals regarding the Electoral College can be understood in the context of the 2016 presidential election. 

President Trump penetrated the vaunted “Blue Wall”, a collection of states in the East whose electoral votes had gone to the Democrat nominee dating back to 

Ronald Reagan.  His feat was unexpected, defied conventional wisdom and left much of the country laughing at pundits, pollsters, and “professional” journalists.  He won the election in the Electoral College, while his opponent managed to secure the popular vote by running up huge margins of votes lodged on her behalf in heavily populated California.

In modern times we have seen three presidents elected with less than a majority of the popular vote. Bill Clinton (43% in 1992), George W. Bush (48% in 2000) and Donald Trump (47% in 2016).  

This would have been of little concern to the framers of the Constitution.  They constructed the Constitution with a healthy skepticism about the wisdom of the universal suffrage, much less entrusting the election of critical offices to the direct vote of the populace.  For example, it was not until 1913, with the passage of the 17thAmendment that U.S. senators were elected by voters in the respective states. Until then it was an appointed position. And the wise men who drafted our Constitution would have been scandalized at the notion of granting felons the vote must less as some democrat candidates and Speaker of the House Pelosi of San Francisco has suggested, sixteen-year-old kids. In passing I find it ironical that the legislature of Speaker Pelosi’s home state determined that the same juveniles she wishes to enfranchise can’t be held fully responsible for the brutal and violent crimes they sometimes commit because brain science supposedly supposedly established the judgement centers in their brains haven’t’ fully formed.  

Most citizens understand the President is not elected by a direct, popular vote.  Rather the Constitution in Article II, Section One, states he or she is to be elected by a system of electors, known as the Electoral College.  Each state has a group of electors equal to the number of state representatives in the house and senate.  Plus the District of Columbia has three.  That means there are 538 electors and it takes 270 to elect the president.  A president is elected not by how actual votes of citizens are distributed. It is done by how the Electoral College votes are distributed in what are 51 separate elections.

When the framers developed this means of selecting a Chief Executive, it was a novel approach.  From their historical perspective the Chief Executives of most nations were chosen by bloodline, military power, or legislative selection.  The Electoral College was, in some scholars’ views, an experiment.  The reviews regarding its success have been mixed.

There are two additional aspects to the Electoral College that need to be understood.  

First, the Constitution delegates to the States, the appointment of the Electors “in Such manner as the Legislature thereof may direct.”  

And it this regard, most states employ a “winner take all” system.   That means that if a state has 20 electoral votes available and one candidate receives 10 million actual votes, but the other candidate receives 10 million votes plus one, all 20 electoral votes go to the winner and none to the candidate who had millions vote cast for him or her.  

California is a prime example.  It has 59 electoral votes, the largest number of electoral votes of any state.  Almost 20% of the number of electoral votes needed to be elected president.  Yet California as it relates to the Electoral College (and barring the emergence of a Reagan like figure) is a one-party state.The registration advantage of one party is so lop-sided, it is felt there is no need for the nominees to even come to California other than to drop in on the swells in San Francisco, L.A., and Silicon Valley to pick up campaign funds. 

Texas has, until recently, had a similar imbalance in favor of the other Party. 

Looked at another way, a candidate can take just 3 states of the 50, California, Illinois and New York and be well on the way to victory.  In a presidential election, there is never a real contest in any of these states, yet they account for 105 electoral votes, more than one third of what it takes to be elected.  Yet, again, there is no need for either candidate to campaign in any of these three states. And the margins that the candidate from the dominant party run up is of little consequence.  

The second aspect of the Electoral College to be considered is that most of the arguments that originally undergirded the Electoral College system have long ago melted into history. 

In the federalist papers it was argued that the election of the president should be by “a small number of persons, selected by their fellow-citizens from the general mass,(who) will be most likely to possess the information and discernment requisite to such complicated investigations.”  Those noble sentiments notwithstanding, Electors, modernly, are just party representatives. They are not these so-called persons of discernment, if such a person ever existed. And what is even more concern is that nothing in the Constitution requires the electors cast their ballots in accordance with the votes of their states.  The problem of the so-called “faithless elector.”  Many states, however, have laws to obviate this loophole.

The Federalist papers also contended that the Electoral College was a means to keep foreign influences from “an improper ascendancy in our councils.” The fearful Russians notwithstanding that is hardly a concern in today’s world.

The one idea that hasn’t lost its currency was the thought that an Electoral College would ensure all the states in the nation had a say in the selection of the Chief Executive. Individual States, during the formation of the Republic, were jealous of their prerogatives and of each other.  They didn’t want a single populous state or region to put forth a favorite son who would represent his region to the detriment of the smaller states.  

Does the operation of the Electoral College have to be this way?   Is it required by the Constitution?  

The answer to both questions is No.  

Even if it would be too difficult, politically, to amend the Constitution and replace the Electoral College with the direct popular vote for President, there is nothing in the constitution that requires that the Electoral College votes in the states be “winner take all.”   In fact two states award electoral votes proportionally based upon the voting in individual congressional districts. Those two states are Maine and Nebraska.

Nationwide, were other states to change from a “winner take all” model it might lead to a real campaign in many more states than the so-called swing or battleground states.  

Even if the minority party registration in individual states were only 30% or 40%, it would behoove candidates to campaign in congressional districts so that those electoral votes could be added to others in other regions of the country.  That 30% or 40% in California would translate into the same number of electoral votes as Pennsylvania, which turned the tide in the 2016 election. It might rival Florida that, in my opinion, gets way too much attention every 4 years.  

In the nascent movement to replace the Electoral College, there are some States seeking to circumvent its provisions by awarding all their electoral votes to the winner of the national count.  Such an approach is shortsighted.  It’s a formula by which the state itself is disenfranchising the state’s own voters.  For example, even though an overwhelming majority of, say New Mexico’s voters cast their ballots for one candidate, because California and New York with their huge populations favor a different candidate, New Mexico’s voter’s ballots would be completely wiped out. 

As to eliminating the Electoral College altogether and awarding the election to the person who wins the most popular votes nationwide, its best to remember the old saying of “be careful what you wish for.”  The framers of the Constitution possessed a certain genius for avoiding crippling ideas. There is a reason they insisted on a majority of electoral votes.  Had they opted for popular vote not only would the smaller states have been disenfranchised in favor of the bigger ones, but the Presidency could be won by a plurality of votes. 

Consider for a moment that there are two dozen men and women running for the democrat nomination. Three quarters of them have little to recommend them in terms of judgement, experience or proven leadership. Many of them are adopting socialistic principles without fully understanding the implications.  There is little loyalty in the group for even the traditional values of the democrat party.  Is there any reason to believe that if it was possible to win an open election, that same number of persons would not run for the Presidency itself?  If a dozen or so ran for President, is it possible that with a disciplined campaign someone with 30%, or 25% or less of the popular vote could be elected President? 

Those questions and others need to be answered before any change, not after. 

For more articles on the Constitution and writings by Phil Cline, visit philcline.com

Packing the Supreme Court

Packing the Supreme Court

Packing the Supreme Court or “The Switch in Time That Saved Nine”

A number of the announced candidates for the democrat nomination for President, have proposed changes to the current structure of our government.  Some are foolish, some wild, some weird, some have been tried before. Such as Packing the Supreme Court by adding more justices.    

One particularly looney proposal is to have a 10+5 make up.  Ten appointed by the President and five by the Supreme court themselves. There is one minor problem.  The Constitution provides that the President appoints Supreme Court Justices.  They don’t appoint themselves.  But those type of moronic ideas aside, could the number of Justices by increased from the traditional nine?

The answer is yes.  

In 1935, Franklin Roosevelt had just been re-elected President by the largest landslide in history. The country was looking to him and his programs to lift them out of the Great Depression.  They gave him an unquestioned mandate to do what needed to be done.  And they gave him a Congress to help him.  After the election, his party dominated both houses of Congress, by large margins. 

But he was worried. He had the mandate and the agenda, and two branches of government under his effective control.  However, a reactionary Supreme Court was threatening to lay waste to the programs he had steered through Congress to lift the nation out of the Great Depression. 

He was right.  

Over the next few months the Court found over a half dozen of Roosevelt’s programs unconstitutional. In private he accused the Supreme Court of adopting a “horse-and-buggy definition of interstate commerce.”And it appeared his new Social Security and National Labor Relations Acts would suffer the same fate.

Roosevelt reacted. He came up with a plan.  A Court Packing Plan.  Within two months of the inauguration, he struck.  In a surprise move he asked Congress to authorize him to appoint a new justice to the Federal Courts for every justice over the age of seventy.  The average age of the Justices was seventy-one.  His plan would give him six new Supreme Court appointments and over forty new lower court Justices.  

His proposal was and is Constitutional.  Nothing in the Constitution requires that the number of Justices be limited to nine.  It has, at different times in our history, been more and been less than nine.  Nor does the Constitution specify any standards regarding qualifications to serve as a Supreme Court Justice.  Only that the “judicial power of the United States be vested in One Supreme Court and such inferior courts as the Congress may from time to time ordain and establish.”  

Over the next six months there was a very public battle.  Almost every editorial writer in the country opposed Roosevelt’s court packing plan and of course the legal community rushed to protect the “independence” of the judiciary.

Nevertheless, it appeared, given his political power, Roosevelt’s plan would pass.  Then, unexpectedly two important New Deal programs were narrowly upheld by the Court.  One concerned the minimum wage and the other the National Labor Relations Board.The Supreme Court and one justice in particular had switched how they were ruling on cases involving Roosevelt’s New Deal programs. And after the rulings, the President doffed his trademark smile, backed off and let Congress drop the Court packing plan.

Revisionist historians, many from the legal profession, as is their métier, argue the change in rulings was not a result of Roosevelt’s court packing plan.  Their explanations are facile. The results were clear.  From that point forward, no other New Deal program was overturned by the Supreme Court.  Roosevelt, was all too willing to lose the battle, but win the war.  My favorite biography of FDR is aptly titled “The Lion and the Fox.”  The great man was both.

The results of the Court Packing Scheme and what commentators called the “Switch in Time that saved Nine” are noteworthy from a constitutional perspective as well as the impact the proposal had on the decisions of the Supreme Court.

Regardless of later revisionist history, it was clear that the Supreme Court and at least some justices switched how they were ruling out of political expediency.   They sensed that they had gotten severely out of step with the Public and a President sent to the Washington to get things done.  And in this confrontation with the Executive Branch, they saw they were going to ultimately lose.  They switched their rulings to save their institution from change. 

The current proposals to stack the Supreme Court are also political, but of a different order.  Unlike Roosevelt who was intent on pulling the nation out of economic quicksand, and had the mandate to do so, the current crop of candidates propose tampering with our Supreme court to satisfy a few narrow social justice interest groups who wish to impose their goofy ideas on the rest of us. They see packing our Supreme Court as a sure-fire way of accomplishing their goals. And if they understand history, they know just making the threat has a chance of changing critical votes on a Court where many important decisions are coming down 5-4.

And make no mistake about it, the Supreme Court is watching. After FDR’s attempt to pack the Court, not only did all of his New Deal Programs pass constitutional muster from that point forward, but for the next sixty years the Supreme Court never reversed one, not one, case involving an expansion of federal powers under the Commerce Clause. 

The result was the creation of vast administrative agencies and millions of pages of regulations that intrude on virtually every aspect of our daily lives.  

Whether the proposals ever come to fruition, the election of someone who, as President would attempt to pack the Supreme court can have extremely long-term consequences for every one of us.  

Whether their plan gets through or not. 

Ordered Time

Ordered Time

Ordered time

They tried to order Time dawn to dusk,

Futile spreadsheets of manageable units,

Denying its nature to slow, to speed 

To pause, to fly with thoughts, dreams, 

Friends met, enemies loathed,

With pain and agony and anxiety, 

With pleasure, gaiety,

With visions, prophecies, with 

Feckless Fraud found out.

Ordered like railway ties

Clacking underneath our passing carriage

Carrying us toward the illusion, 

Of rails merging beyond the horizon, 

Combining before and after, 

In front and behind our journey.

And We passalong the tracks, the self-same tracks 

That transported circus animals to towns of laughing children, 

And carried the Jews to the ovens

And passed in front of Einstein, 

Standing on the platform, 

Visualizing eternity.

And locked in our box cars through the slats we see

Tree limbs encased in ice, white

The beauty of the morning, breaking, falling, 

The ache beyond our finger’s reach,

That we will never touch or hold,

Not for us to possess, to savor, to hoard.

Order beckons us away from the wide moment,

The joy of girls laughing,

The approval of a wife’s smile, 

The grief of a widow,

Order leaves behind the town, back before crowds,

Bare feet skipping between the sticker burs,

Curbs free of cars up in the work day

Young boys delighted to run an errand,

The touch of smooth porcelain, 

Birds chasing rabbits in the meadow 

And the singing, singing, singing as we lament.

Sad, time will be there tomorrow, somewhere, 

And was there, somewhere just yesterday

As we ride away, and disappear chasing the illusion 

Of separate tracks merging beyond the hill.

And worst of all, unordered, Time quietly resolves,

Barely felt, it ends the longing, desire, ambition, hope, 

the possibilities, When it ends, it ends

The dagger in the back of the Prince,

The speech of a President sending the nation to war,

A bullet in the chest of a Mother’s son,

The Preacher on Christ’s divinity, on God’s wrath, on God’s grace

The assassin’s bullet shattering the brain of his better, of our better,

The desperate search for a lost child,

Wandered off or taken?

Murdered by a Father or a Father’s mistress?

Getting lost in a picture of Micky Mantle

His halting, haunting, lumbering gait rounding the bases,

Country strong, country smile, innocent and lethal 

Having a drink with his own nightmares,

Ends 

A Father’s teaching,

A brother’s perfidy, 

A sister’s betrayal,

A mother’s slap,

A daughter’s laugh, tickled, unrestrained,

A granddaughter’s tear, as life impinges on her innocence.

Our tear as she looks away from the horizon 

Where the tracks maybe just might merge and stands shyly watching

The boy serving hamburgers and sodas at the counter.

NY Times Case

NY Times Case

In this week’s segment of Cline on the Constitution I’m once again get distracted by the latest shiny object.  The interruption of my series on voting rights continues so I can discuss Justice Clarence Thomas surprising call for the Supreme Court to reconsider the famous New York Times v. Sullivan case, a case which gutted slander and libel laws. Because President Trump has made similar comments there has been much wailing, rending of garments, and gnashing of teeth over the danger to Freedom of the Press in News Rooms across the land. I’ve written about the subject before. It’s worth revisiting. 

There are some threshold distinctions. 

The Basics:  Slander is the speaking of “base and defamatory words tending to prejudice another in his reputation, office, trade, business, or means of livelihood.” You know, like all the stuff we read on the internet! 

First, slander and libel laws are not about suppressing freedom of speech.  Freedom of Speech has never insulated the right to speak falsely of another.  Slander laws protect against false statements. It is axiomatic that the Truth is an absolute defense to any suit for slander and libel. 

Second, slander and libel are two sides of the same coin.  Libel is merely the written form of slander. 

Third, liability (money damages) attaches to not only the original person who utters the slander, but any person or organization that repeats (re-publicizes) the slander. Therefore, if I falsely accuse you of a crime, not only I am liable for the harm I caused you, but the person who repeats the slander is also liable for damages caused by his republication.

Now for the case.  

The NYTimes case deals with public officials (and public figures, movie stars, athlete’s etc.)

Decided in 1964 (another 60’s case!) it held that false statements published by civil rights groups about an Alabama public official were protected first amendment expressions. It overturned a monetary award made to the public official libeled by the falsehood published by the New York Times. The brand-new rule fashioned by the Supreme Court in the case required public officials to show false statements made about them in the media were not only untrue but were made with malice, that is intentionally or with reckless disregard of their falsity.  (Good movie about this rule:  Absence of Malice with Paul Newman.)

This is a judicially created rule.  It did not exist before 1964.  Somehow the republic survived near 200 years without it.

And it has not been without controversy.  Even among the Justices of the Supreme Court.  Justice Byron White,in a 1974 opinion, criticized the reasoning in the New York Times case and wrote, “First Amendment values are not at all served by circulating false statements of fact about public officials.On the contrary, erroneous information frustrates these values.  They are even more disserved when the statements falsely impugn the honesty of those men and women and hence lessen the confidence in government.”

Justice White also said, “It is difficult to argue that the United States did not have a free and vigorous press beforethe rule in New York Times v Sullivan was announced.” 

There is one further distinction that needs to be made.  

It centers on the use of the phrase “freedom of speech” synonymously with the phrase “freedom of press.”  The first amendment as it relates to speech has two separate clauses (three if you include Assembly, but we will put that aside for now).  

Is Freedom of Speech and Freedom of Press actually the same thing?  Or are they two different concepts? 

The contrast in the writings of Justice Potter Stewart and Chief Justice Warren Burger elucidate the distinction.  The difference between Freedom of the Press and Freedom of Speech is that one is institutional, and one is personal.

Justice Stewart noted the Press is the only organized private business given explicit protection by the constitution.  He emphasized the business of the Press, as envisioned by the framers, is more about the dissemination of news than the expressionof ideas.  

Chief Justice Burger, on the other hand stated:

“The Speech Clause standing alone may be viewed as a protection of the liberty to express ideas and belief, while the Press Clausefocuses specifically on the liberty to disseminateexpression broadly and comprehends every sort ofpublicationwhich affords a vehicleof information and opinion.”

Chief Justice Burger did not believe the two phrases, Freedom of Speech and Freedom of Press were a redundancy.  Rather the Press clause merited special attention in the Bill of Rights because it had historically been the object of official restraints.  The framers especially abhorred the licensing of the Press by the government that was done in the English system.

Which leads us to the final basic questions:  Who is the Press?  And why in the world should they be protected in negligently disseminating false information that hurts someone?

So, who are the Press? The trite image of a news room as a hive of activity manned by sweaty virtuous reporters is no longer true—if it ever was. Modernly, the Press is not just newspapers and T.V., not just periodicals and circulars.  It includes the blogger, the commentator on YouTube, the purveyor of podcasts, Facebook, Instagram, and, of courage, Twitter.  In fact, many reporters from media outlets use each of these platforms to report the news.  It’s easy, it’s fast.  And it is also often wrong.  Plus it is extremely easy to introduce a totally false story into the news stream and have it be picked up and reported, and re-reported, and re-reported ad infinitum, by the mainstream media including the self-same NYTIMES. 

Likewise, it cannot by gainsaid that the Press today are often run by large national, even multi-national corporations.  Editorial polices and stories in most local newsrooms, including our own, are selected and driven by corporate headquarters in Washington, New York, Los Angeles, and Sacramento.  

Which brings us to crux of the matter.  Should these huge corporate entities be held to a standard of due care in putting out false information about people?  Is it ok for them to be negligent?  To damage people with false stories?  Not to have to be careful?  To check something out before publishing it and then having it published and republished forever?  Because the internet is forever.   

Because that is one other difference in modern times.  The republication of false stories on Social Media platforms like Facebook, Twitter and the rest.  Should they not held responsible for vicious lies about real people spread on their platforms?  Because the NYTIMES case eliminated any restraints on their republication of false slander too.  And remember we are talking about information that is demonstrably false.  The truth is an absolute defense to Slander.  

And, you know, it’s not like they can’t afford it.

Reminds one of the auto industry.  Once upon a time that industry felt they could make their Billions on products we had to have and if the product was inferior and dangerous and hurt people because the corporate giants couldn’t be bothered to make cars safe, well, too bad. Fortunately, there were no NYTimes case to Shield them from being held responsible. The laws of liability for their negligence required they change their behavior and be more careful. And they did.

So should News organizations and Social Media platforms be held to a duty of due care before they publish false information?

When one trades in information, just like any other trade, there is a duty to be responsible in making an effort to insure the damaging information is not false. 

The NYTimes case is a judicially created rule.  Times have changed since the 1960s. Justice Thomas’s call for it to be re-considered is prudent and timely.

For more writings by Phil Cline, visit philcline.com

Emergency Orders

Emergency Orders

In this week’s segment of Cline on the Constitution, I decided to pause in my review of voting rights cases to consider the President’s recent actions concerning our Southern Border.

The President’s declaration of an emergency and his orders to transfer funds to construct barriers on the Southern Border has generated extensive commentary on the legality of his actions as well as whether they are constitutionally permitted.  

How will the President’s orders fair in the Courts?  

As has become routine anytime this President seeks to exercise his Executive Powers there has been a rush to the microphones and threats launch a battery of new lawsuits. California’s own Attorney General couldn’t wait.  Instead of addressing the significant uptick of crime in our state, he consistently spends most of his time and huge sums of taxpayer dollars suing the federal government on behalf of non-citizens.  

The usual shoving and pushing to get in front of T.V. cameras, aside there are two questions from a Constitutional perspective about emergency orders.  First, does the President have authority to issue such an order.? The declaration is not the big thing, the orders made pursuant to the declaration are the issue. Second, and I think ultimately this is the most important, do federal district court judges have the authority to prohibit the actions before they are taken?

Article II provides that “The Executive Power shall be vested in a President of the United States of America.”  It was placed there to correct a weakness in the original Articles of Confederation.  The constitution also specifies that the President “Shall take care that the laws be Faithfully Executed.”  Taken together that is a very broad delegation of power.

The Supreme Court has recognized that in order to carry out the duties of his office the President has certain inherent powers.  Executive orders are deemednecessary tools to execute the functions of the office.  

In fact, they have the force of law if placed in the Federal Register.  

There are limits. Executive orders may not impinge on the functions of the other branches of government, on the constitutional rights of citizens nor on the powers reserved to the States. 

The most potential for conflict arises in the context of a National Emergency; those times when a President concludes an Executive Action is necessary to defend the country from an “existential” threat.  One of the most famous (or infamous if you will) was President Roosevelt’s executive order requiring the internment of citizens of Japanese decent in internment camps during World War II.  

During the Civil War, President Lincoln made wide use of Executive orders and regularly trampled individual liberties both in the South and the North. He justified his actions under what he maintained were broad presidential powers to put down an insurrection. Significantly, when his unconstitutional order to suspend habeas corpus was quashed by a court he adroitlyasked, “Is it possible to lose the nation and yet preserve the constitution?”   

Though sometimes the language, tactics and lawlessness used by the radical left in this country at times take on the characteristics of an insurrection, we are not there.  At least not yet. 

But the question Lincoln asked encapsulates the dilemma facing the leaders of our country in times of great peril.

The Supreme Court’s approach to such questions of is to employ a formula from the Youngstown Steel case decided in the 1950s. During the Korean War President Truman seized steel mills whose production had been crippled by a strike.  The Steel was necessary, he argued, to support the war effort in Korea.  Congress had passed a resolution opposing his expected seizure of the mills.  

In a concurring the opinion overturning the seizure, Justice Jackson (who had been a lead prosecutor during the Nuremberg Trials in Germany), wrote that the legality of a President’s actions is at the highest when he acts in accordance with powers granted him by the Congress or expressly by the Constitution.  On the other hand “his power is at its lowest ebb”; when he acts against the express or implied will of Congress. 

In 1976, the Congress granted the President the power to declare an emergency and the power has been used numerous times by President from both parties.  

Significantly the Congress left it up to the President to determine what the definition of an Emergency is in a particular case.  If, the President is acting in accordance with that legislation he would seem to be on solid ground.  His position may have been stronger had he acted before agreeing to allow Congress to negotiate, however.   Ironically,  his waiting may have undermined his argument that an emergency required him to act.  

The second question concerns how the matter will be handled by the Federal Courts. 

As the President himself has stated, everyone expects some federal district court judge somewhere will grant a universal injunction stopping the Executive action unless and until it can be brought before the Supreme court.

There is a rather obvious problem.  We have over 600 federal district court judges in the country.  Is it now necessary to get pre-approval for any executive action by all 600?  Not exactly how the framers envisioned the judicial role.  

In Trump vs. Hawaii decided last year and which upheld the President’s “Travel Ban” Justice Thomas, in a brilliant concurring opinion, called on his fellow justices to put an end to the practice of lower federal court’s issuing universal injunctions. 

“These injunctions”, he wrote, “are beginning to take a toll on the federal court system preventing legal questions from percolating through the federal courts, encouraging forum shopping, and making every case a national emergency for the courts and for the executive branch.”

He went on to review the history of a court’s power to issue extraordinary writs that came down to us from the old equity courts of England. The matters were debated in the Federalists and Anti-Federalists’ papers ending with the conclusion of Hamilton that the “constraints” of their duty to only decide the cases that came before them obviated the danger the courts would grab too much power. 

Justice Thomas pointed out that universal injunctions not only do not comply with the principles set out by the framers, but only emerged for the first time in the 1960s.  (where have we seen that before?!) and “dramatically increasing in popularity only recently.”  

In those years, he said, “some jurists began to conceive of the judicial role in terms of resolving general questions of legality, instead of addressing those questions only insofar as they are necessary to resolve individual cases and controversies.”  Which is, by the way, jurisdictional.  Under the Constitution the courts are only allowed to decide cases and controversies before them, not general questions of policy. Universal injunctions, the Justice opined, “appear to conflict with the original understanding of the judicial role.” 

After considering the various arguments made in their support, he concluded there is no constitutional authority for the use of universal injunctions. “But these arguments do not explain how these injunctions are consistent with the historical limits on equity and judicial power.  That at best “boil down to a policy judgement” about how powers ought to be allocated among our three branches of government.” But the people already made that choice when they ratified the constitution.”  

He concluded “In sum, universal injunctions are legally and historically dubious.  If federal courts continue to issue them, this Court is duty bound to adjudicate their authority to do so.”

In the final analysis, whether the caravans of illegals being organized and directed toward our Southern Border constitute an “emergency” may not be the most important question for the court to decide.  Instead it may be constraining the unconstitutional expansion of power by the federal courts. That may be the most important emergency of all. 

For more writings by Phil Cline, visit philcline.com

Voting, Part Two

Voting, Part Two

In Abbott v. Perez, The Supreme Court slapped a federal district court with a much-needed douse of cold water in an attempt to wake them up, force them to embrace reality for once and have them return to their lane in the governance scheme set out in the Constitution.  Abbott is the second case on voting decided by the Supreme Court last term I wanted to bring to your attention.  It is one of a series of cases which seem destined to set up a blockbuster decision on Gerrymandering most scholars anticipate will be decided this term. 

This case involved a redistricting plan. Under the Constitution re-drawing district lines for congressional offices is a power left to the States and not delegated to the Federal Government.  However, the Equal Protection Clause of the Fourteenth Amendment passed after the Civil War, forbids “Racial Gerrymandering.”   And under the express power to legislate enforcement of the Fourteenth Amendment the Congress passed the Voting Rights Act.

After the 2010 census, the Texas State Legislature set out to redraw district lines.  

A plan was passed in 2011 but was tied up in court and never used.  In 2013, after the Shelby decision (discussed in a previous post) invalidating part of the Voting Rights Act, the state legislature attempted to resolve the issue by approving a redistricting plan modeled on one the district court itself had approved.  But, of course, that plan was also attacked. As the Supreme court said, “The Legislature had reason to know that any new plans it devised were likely to be attacked by one group of plaintiffs or another.”  Sadly, that is a modern truism about any attempts to govern by a legislative body. Somebody is going to sue, and some federal district court somewhere is going to figure they know better how to govern than those elected to do the governing. 

In yet another example of overreaching arrogance by a lower federal district court where no action of a government ever seems to be satisfactory, this new plan was struck down because the federal court decided the State had not satisfied the court of their good intentions.  

In an opinion crafted by Justice Alito, the Supreme Court did two things which to one unschooled in the law may seem minor, but which any lawyer will recognize as important.

First, it reversed the lower court’s assignment of the burden of proof.  Instead of placing it on the government, it placed it back where it belongs with the plaintiff, the person or entity bringing the law suit. The lower federal court without any authority to do so had decided the government had to show that they had somehow “purged” and “cured” the taint of the 2011 plan, a plan that had been “alleged” to be discriminatory and a plan that wasn’t even used.  The lower court went further and in a brazen display of judicial interference in the legislative sphere, it required the legislature to conduct its deliberations in a way the court approved.  Reminds one of a court requiring a showing that the taint of a statement by a candidate in an election must somehow be cured before the court can even read, much less consider the actual legislation before it.  It’s like federal courts see themselves as high priests requiring a trip to the confessional by the other supposedly co-equal branches of government for an expiation of sinful thoughts.  

Second, the Supreme Court confirmed the principle that should always apply to official actions by those democratically elected to govern.  That is that their acts are presumed to have been done in good faith. The federal court erred in ignoring the evidence that in fact the Texas state government had acted in good faith.

In applying the law to the case, the Court reiterated the general rules regarding redistricting challenges.  It must be shown by the person or entity attempting to block the redistricting, 1) is  a geographically compact minority population, that is a majority in the district.  2) There is political cohesion among members of the group and 3) bloc voting by the majority is taking place to defeat the minorities preferred candidate.  And after all that, then the plaintiff must prove under the totality of circumstances the district lines dilute the votes of the minority group.

In the Abbott case, the tests were not met.  And it was plaintiff’s burden to make the showing. In other words, to prove what they alleged.

In elections across the land, attempts to draw district lines face multiple challenges no matter what efforts the local government expends to do the redistricting in a fair way. Statistical models are used and provocative language about voter suppression and racism are inevitably pressed at every opportunity.  That is all find and dandy.  So be it.  

But in Abbott the Court reaffirmed a basic principle.  It is one we should be applying in our general public actions and statements. If you allege it, then, by God, prove it!  

Don’t accuse a person of something and then adopt the presumption that it must be true.  Don’t require a person prove they didn’t do the wrong or, worse, think the wrong thoughts at the wrong time.  No.  It’s your allegation.  Prove it. It’s the legal equivalent of saying, “Put up or shut up.” 

Voting

Voting

This Week’s segment of Cline on the Constitution

Voting

The process of casting a vote is changing.  Who, when, and how is an accident of location. It can be vastly different from state to state. 

The image of an adult citizen showing up at the polls on election day, being handed a ballot, retiring to the voting booth to cast his or her ballot is no longer accurate.  

There is no real date to appear at the polls.  Absentee ballots are counted weeks before and weeks after the election date.  Nor is it required that one casts one’s own ballot. Anyone, and I mean anyone, may “harvest” a vote.  They can pick up an absentee ballot from a voter and cast it for them.  And, at least in California there is no interest or inclination to investigate voter fraud by the Attorney General or the Secretary of State at least as long as their party is in power.

In California and across the nation, the right to vote is being extended to felons, non-citizens, the mentally infirm, even prisoners. Which if one considers a local election for Sheriff, may indeed put the inmates in charge of the asylum. And election officials are severely restricted from asking for a valid identification.  One must have identification to cash a check, but not to vote.

And with the changes are legal challenges to voting.  Last term the Supreme Court issued a number of opinions concerning voting and some important cases on the issue are on the court’s docket this term, including a challenge that might finally end the time-honored practice of gerrymandering.

This post and the two to follow will report on the court’s decisions last term and make some modest predictions about where I think these issues will go.

First, the Basics:

The original Constitution drafted by our framers had no reference to the right to “vote.” Qualifications and other issues related to voting were left up to the individual States. Some States excluded non-landowners from voting, others restricted voting based on religious beliefs, gender, or race. By the middle of the nineteenth century, however, these arbitrary barriers to voting were being dismantled.

The Fifteenth Amendment prohibited denying the right to vote based on race; the Nineteenth Amendment did the same for gender; the Twenty-Fourth eliminated poll taxes, and the Twenty-Sixth insure the right to vote for persons over the age of eighteen. 

The Supreme Court for many decades under the “political question” doctrine deferred the resolution of issues related to voting to the other branches of government.  That began to change in the 1960s.  The best known of these early cases was Gray v. Sanders in which Justice Douglas’s opinion overturned a county based primary system because it diluted the voting power of urban areas.  He wrote: “the conception of political equality from the Declaration of Independence to Lincoln’s Gettysburg address, to the Fifteenth, Seventeenth, and Nineteenth Amendments can mean only one thing – one person, one vote.” 

Within a short time, the Court issued over a half-dozen opinions striking down state drawn district lines.  And in 1965, Congress passed The Voting Rights Act which protected voting rights, and put certain states and jurisdictions under a Federal pre-clearance requirement for any changes to local voting procedures.  Part of this act was eventually (in 2013) held unconstitutional because Congress repeatedly failed to update which jurisdictions were subject to federal control even though demographic changes made the continuing federal oversight irrational. (for more on these issues see previous posts.)

Now for the cases decided last term:

The first of the cases was decided last term was Minnesota Voters Alliance v. Mansky.

It’s not unusual for the Supreme court to be behind the times when it comes to discussions of technology and changes in society. Given the rapid changes, in some ways, the Mansky case is quaint and antiquated.  

It’s discussion centers on polling places and attempts by a State government to regulate conduct and speech at the polls.  The traditional justification is to protect the voters from undue influence by banning the rough and tumble of politics from the sacred precinct where votes are cast. In the Court’s language, “an island of calm in which voters can peacefully contemplate their choices.”

Mansky was a 7-2 decision. The opinion was penned by Chief Justice John Roberts. The state sought to regulate the wearing of “political” apparel at the polling place.   

The law was enacted in Minnesota in the 19thcentury in response to so-called “chaotic” conditions where “crowds would gather to heckle and harass voters who appeared to be supporting the other side.” Where polling places became “highly charged ethnic, religious, and ideological battlegrounds in which individuals were stereotyped as friend or foe, even on the basis of clothing.”  

Hmmm.  Sounds familiar.  

It’s not difficult to conjure up modern examples of what would be prohibited.  Make America Great Again hats for sure, rainbow flags, one would think. Tee shirts depicting aborted babies, pink pussy hats? But where is the line? And, always the question, who gets to say where the line is? Do we really want federal judges to do it and thereby become even more political than they already are?

Thankfully, the court in this instanced said No. 

The Court struck down the law in Mansky as not being specific enough in its definition of what was banned by words like “political.”  By banning political apparel, it impinged on Freedom of Speech.  Consistent with First Amendment jurisprudence it ruled the State may regulate campaign activities, (or conduct) at polling places, but found the inclusiveness of the language violated freedom of speech. 

So far, so good.

But in a couple of ways the case is another “judicial head in the sand” decision.  

First, it gives too short shrift to the reasons the legislation was enacted.  Things haven’t really changed.  People still abuse other people, and improperly invade every public space in the most vulgar and vile manner. Hells Bells, even a group of Christian high school kids can’t gather in the Nation’s Capital to support the Right to Life movement, without being harassed by a group of Black adults spewing hatred and a nutty snaggle tooth man pounding his drum in a teenager’s face.

Second, in point of fact, developments in voting I outlined in my introductory paragraphs are harbingers of the future.  And the inevitability of online voting.  As we move closer to what many said was impossible: “Direct Democracy” in which the voting public can decide in an instant whether to approve or disapprove a proposition, an initiative, even a candidate, indeed any law.  

Maybe, some might even begin to question the need for legislatures and legislators. Afterall, we all can with a push of a button, (or rather the click of a mouse) make the decisions instantaneously.  And of course, oldsters like me, might ask but what of representative democracy?  And the new generation might answer: But, do we have that now?  A dysfunctional Congress, corrupt and mindless state legislatures, all in the hands of a few legislative and committee leaders?  Who secure their sinecure by raising and disbursing campaign donations? 

Uh, . . . maybe someone should listen while the Supreme Court is busy answering questions no one may be asking anymore.

For earlier posts or more writing by Phil Cline visit philcline.com