Category: Congress

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

War and Emergency Powers

War and Emergency Powers

The prospect of war abroad and insurrection at home are not thoughts we welcome. However, I’m not sure they can much longer be avoided.

 

Abroad North Korea, ruled by a fat little despot with a bad haircut, has nuclear bombs, is developing missiles to deliver them and threatens to use the weapons against the United States and its allies.

 

In the Mid-East, Iran is also developing nuclear weapons and missiles and also repeatedly engages in provocations against United States forces in the region.

 

A miscalculation in either theatre could lead to a wider war.

 

At home, scenes from City streets like Saint Louis, Baltimore and Berkeley are cause for concern.   Police authorities, public institutions and even private homes of public officials are subjected to pre-planned violent attacks. The burning, looting and lawlessness resemble riots and insurrections more than protests.

 

It is worthwhile to pause a few moments and consider whether under the Constitution the powers of the Federal Government expand and individual rights shrink in time of war and insurrection?

 

It’s an important question because if there is a time when Constitutional restraints on the exercise of power by the Government are stretched to the outer limits it is in times of war. It is in times of national emergencies. Abraham Lincoln, like many of our leaders, had to ponder the ultimate question: “Is it possible to lose the nation,” he asked, “yet preserve the Constitution?”

 

The Framers of our Constitution were not fools. While they took pains to limit the powers of the federal government in order to avoid tyranny, they also knew there could be wars, rebellions, even insurrections and that if the government didn’t have the power to deal with such challenges, the country could be lost.

 

What are some of those powers?

 

Congress, as we know, has power to declare war by a simple majority vote of both houses. But what they also have the power to do is prepare the nation for war. They may pass Conscription laws, drafting private citizens to serve in the armed services. Congress may authorize the seizure of private property to aid in a war effort. And they may impose price controls as well as rationing of food, fuel and other materials.

 

Additionally, the Constitution guarantees the individual States a republican form of government and “protection against invasion.” And the Constitution empowers Congress to federalize militias and units of the National Guards to suppress insurrections that threaten republican forms of government and repel such invasions.

 

Congress also has the power under the Constitution to suspend the writ of Habeas Corpus in times of rebellion or invasion “or when the public safety requires it.” That has obvious implications for individual citizens detained by the government who wish to challenge the legality of their detention.

 

And While the Constitution has no express provision for the imposition of Marital Law, in fact it has been used numerous times in our history.

 

Additionally, by Executive order, the President may order the killing of American Citizens who wage war against the United States, both on foreign soil and actually within the jurisdictional borders of the United States. He may establish military tribunals to try and punish enemies of the United States. By Executive order and with the support of Congress, the President may establish internment camps for entire classes of citizens if it is deemed in the interest of National Security in times of war.

 

And lest there be any doubt about these powers, each of them has been used at some point in our history, and the Supreme Court has upheld the actions as Constitutional.

 

It is unknown if all those rulings would be the same to day, but if history teaches us anything it teaches us war is different, emergencies are different and what in peace time one believes would never happen can happen. And does happen.

 

 

 

 

 

 

Religious Tests Under the Constitution

Religious Tests Under the Constitution

Religious Tests Under the Constitution

 

California Senator, Dianne Feinstein, abetted by Senate Colleagues recently demeaned the Catholic faith of a nominee to the Seventh Circuit Court of Appeal.

 

The nominee, Amy Barrett, is a professor of law from Norte Dame. She has impeccable legal, intellectual and educational credentials and once clerked for Supreme Court Justice Antonin Scalia. At her confirmation hearing, she was subjected to an aggressive line of questioning concerning her religious beliefs as a practicing Catholic. In one particularly offensive exchange, Senator Feinstein scolded her and said, “When you read your speeches the conclusion one draws is that the dogma lives loudly within you.”

 

U.S. Bishops condemned the comments as “anti-Catholic bigotry” that reveal “a thinly veiled anti-Christian bias.” The President of Norte Dame, John Jenkins, said it was “chilling” to hear from a United States Senator that one’s religion might disqualify them from service as a federal judge.

 

Senator Feinstein’s motivation in examining a nominee’s religious views is no secret. She wants to know if the nominee agrees with the religious teachings of her church regarding the morality of abortion or homosexual activity. She wants to know if the candidate would uphold or overturn Roe v Wade (abortion) or Lawrence v. Texas (gay sexual activity) because of her religious beliefs. And if the nominee does not answer by expressly rejecting such religious teaching she risks having her nomination voted down and being denied the public office she seeks.

 

This is not the first instance in our modern history that the faith of individuals wishing to serve in public office has been attacked by Senators.

 

At one time not so long ago the questioning of judicial nominees by Chuck Schumer, Dick Durbin and others, became so egregious that a public information campaign was launched under the title “Catholics need not apply!” In reaction a coterie of Catholic Senators, led by Pat Leahy, proposed a Senate rule prohibiting inquiry into a person’s religious beliefs. The rule failed to come to a vote. Even, John Roberts, our current Chief Justice, at his confirmation hearing, was aggressively examined under oath about his Catholic faith. And only recently, Socialist Senator Bernie Sanders attacked Russell Vought, a nominee to the post of budget deputy director over his Christian faith.

 

Does such questioning of a nominee’s religious beliefs violate the Constitution?

 

Article VI, Clause 3 states, inter-alia, “. . . . all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to Support this Constitution, but no religious Test shall be required as a Qualification to any Office, or public Trust under the United States.”

 

While Senators may question any nominee on any subject outside the committee room, it is different when the person is placed under oath before being questioned. Placing them under oath moves the examination of their religious beliefs into the realm of a religious test which the Constitution forbids.

 

The founders were very familiar with religious oaths and tests. Oaths confirming or rejecting selected religious views were required of anyone seeking public office in merry old England as well as in many of the states at the time the Constitution was written. Those tests were used to protect state favored churches. For example in England an act of Parliament passed in 1672 required all persons who wished to hold public office to take an oath concerning the sacrament that effectively precluded Catholics from serving. Many of the States in pre-revolutionary America had similar provisions. For example the state of New York required an oath disavowing allegiance to a foreign prince, to wit, the Pope.

 

And Oaths meant something to the founders. To be bound by an oath was a solemn undertaking. The promise to keep one’s word had real meaning. To break a covenant either with God or the State was a serious breach of morality.

 

The inclusion of the “no religious test” phrase in the same sentence in Article VI as the requirement of an oath or affirmation to support or defend the constitution is significant. Because the phrases are separated by the conjunction “but” means that the “no religious test” clause is an exception to the oath to defend and support the constitution. It means government may not require an oath concerning religious beliefs as a condition of taking a public office or judgeship. And placing someone under oath and attempting to force them into making a choice of rejecting the teachings of their church or forfeiting the opportunity to take a public office or judgeship is a religious test and violates Article VI of the U.S. Constitution.

 

 

 

 

 

 

The Commerce Clause

The Commerce Clause

Before President Trump took office, I addressed the possibility of him abrogating treaties and agreements signed by President Obama.

Since President Obama often eschewed the formal process outlined in the Constitution and acted on his own, the accords he signed can also be unilaterally nullified by a subsequent President without offending the Constitution.

Since President Trump announced withdrawal from the Paris Climate accords; threatened actions of local state officials raise interesting constitutional issues.

Even though the President’s cancelation is not effective for three years, Governor Jerry Brown and a handful of other governors and Mayors with great bluster and fanfare have rushed to the nearest microphone to announce they are stepping into the fold and are going to defy the federal government and take action to comply with the Paris accords themselves.

Regardless of what one thinks of such opportunistic posturing, or the fact that they undermine the ability of the administration to negotiate an agreement more favorable to this nation’s economic well being, what does the Constitution say about their ability of States to promulgate rules and regulations that affect climate change contrary to the Federal Government? Can a handful of states impose their own climate control provisions?

Since modernly it is hard to imagine a scenario in which a State regulatory action would not affect businesses or transportation in other states we are dealing with the most boring sounding provision of the Constitution, but one of the most important: The Commerce Clause.

The provision is seemingly a simple one: it states that Congress shall have the authority to “regulate Commerce with foreign Nations, and among the several states, and with the Indian Tribes.”

Originally the clause applied only to commerce between states (interstate). Through constitutional interpretation, however, it has been made applicable to activities that occur wholly within the borders of a state (intrastate) IF they AFFECT interstate commerce.

To truly appreciate the expansive scope of the Commerce Clause one only has to consider the famous case of Wickard v. Filburn. (Listen closely and you will hear the extremely perceptive and straight talking Senator Rand Paul regularly railing against the reach of this case.)

In Wickard, a wheat farmer growing wheat for his own family was fined for exceeding production regulations designed to stabilize the price of wheat during the Depression. The court upheld the sanction finding that his actions in growing wheat for his own family affected the price of wheat nationally and could, therefore, be regulated by Congress under the Commerce Clause power of the Constitution.

The court has further held under what they call the “Dormant” Commerce Clause doctrine, States are prohibited from passing regulations of activities that MAY affect interstate commerce even though Congress has not acted in the area.

So if Governor Brown and others of his ilk actually attempt to pass laws and regulations severely impacting certain industries, like fossil fuel production and those rules are found to affect interstate commerce they will be declared constitutionally invalid.

Its one thing to bluster in front of cameras but states can’t have fifty different sets of laws and regulations regarding industry and commerce. Much less individual cities. That is why the power over Interstate Commerce was placed in the Federal Government in the first place. And that is why the bluster of Brown and his acolytes is just that, bluster.

Seating Congressmen

Seating Congressmen

As someone who held elective office for over two decades, I would counsel those who choose to run for political office against knocking some rude, obnoxious reporter on his behind.  It’s not that you don’t want to do it; it’s not that some of them don’t deserve it; its not that that it wouldn’t garner a number of sympathetic votes, but over the long run it’s probably not the most prudent political move.

Gene Gianforte, a winning candidate for Congress from the state of Minnesota, recently apologized for body slamming a reporter.  The Sheriff of the county later served him with a misdemeanor citation.

Considering the fact that he may face prosecution for misdemeanor assault, may the House of Representatives refuse to seat the newly elected Congressman from Minnesota?

Qualifications to serve in Congress are specified in the Constitution.

To serve in the House of Representatives, a person must be at least twenty-five years old, a citizen of the United States for at least seven years, and an inhabitant of the state where he runs for election.  (Interesting side-note: a member of the House does not have to be a resident of the district he represents.)

Because those qualifications are express provisions in the Constitution, State Legislatures may not change them.  For example, efforts to impose Term Limits on Congressmen have largely failed because it would take a constitutional amendment to change the qualifications to serve.  And that is a very steep hill to climb.

Additionally, the Decision whether a person meets the qualifications to take a seat in Congress is left to Congress and Congress alone.

Article I, section 5, states that “each House shall be the Judge of the Elections, Returns, and Qualifications of its own Members.”

This has been held to mean it is Congress who gets to determine if someone seeking a seat meets the age, residence, and citizenship requirements.  And they may exclude them if, in their judgment, they do not.  Additionally, it there is a dispute about the number of votes or legality of votes, it is Congress, not state officials, who will determine who won the election.

There are, however, limits to Congress’ power to Exclude elected representatives.

In 1967, Adam Clayton Powell, a Congressman who had represented Harlem for decades was reelected, but due to allegations of misuse of funds and unbecoming conduct (we used to care about such things), the House refused to seat him.  The Supreme Court found that Congress’ Exclusion power was limited to the qualifications specified in the Constitution and ordered he be seated.

The question then became whether once seated May a Congressman be Expelled?

Article I, Section 5 also provides that “each house may . . . with the Concurrence of two thirds, Expel a member.”

However, although there has not been a case directly on point, most scholars believe the power to Expel is limited to a Member’s conduct After he is seated Not to conduct that occurs Before his term begins.

The bottom line is that The Congress has no power to Exclude Mr. Gianforte even if he is eventually prosecuted for assaulting the hapless reporter.  And it is doubtful they could Expel him given that his body slam happened before his term began.

Commerce Clause Part II, “The Switch in Time That Saved Nine”

Commerce Clause Part II, “The Switch in Time That Saved Nine”

Considering the arrogance and vitriol of rulings by the Federal Courts on President’s Trumps Travel Ban, one wonders if a major confrontation between the Executive Branch and the Federal Judiciary is brewing.

We have had such a confrontation before.

In 1935, Franklin Roosevelt had just been re-elected President by a landslide. His party dominated both houses of Congress, by large margins.

But he was worried.

He knew a reactionary Supreme Court was threatening to lay waste to programs he had, in his first term, 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, however, had 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. Nor does it specify any standards regarding qualifications. 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 6 months there was a very public battle. Almost every editorial writer in the country opposed the proposal and of course the legal community rushed to protect the so-called the “independence” of the judiciary.

Nevertheless, most everyone on both sides of the debate assumed Roosevelt’s plan would pass. Then, unexpectedly two important New Deal programs were 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 programs. After the rulings, Congress dropped 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 ever overturned by the Supreme Court. As Roosevelt said, he may have lost the battle but he won the war. My favorite biography of FDR is aptly titled “The Lion and the Fox.” He 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.

The first is that 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 were going to ultimately lose. They switched their rulings to save their institution from change.

The second is not only did all of FDR’s New Deal Programs pass constitutional muster from that point forward, but for the next 60 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.

We may be headed for a similar confrontation between the Executive Branch and the Federal Judiciary. Hopefully not, but if it happens, however it turns out, it can have extremely long term consequences for every one of us.