"There is always a philosophy for lack of courage."—Albert Camus

Tuesday, May 23, 2017

Responding to Rabbi Dr Jonathan Romain in The Guardian (& over 30,000 impressions)

Friday, May 19, 2017

Kind Words from a Friend in the States

RE: Seth Barrett Tillman, Ex parte Merryman: Myth, History, and Scholarship, 224 Mil. L. Rev. 481 (2016) (peer reviewed), http://tinyurl.com/z934v3n, http://ssrn.com/abstract=2646888


Words do not express properly my thanks to you for this essay, Seth. I wish you were here, or I was there so that we might talk long into the day/night about many of the subjects that you offer for the consideration of the reader. Last year I spent a bit of time in 1861 and so had reread the Lincoln 4 July communication to the Congress. I acquired the Bates memorandum that the President had suggested might be forthcoming, a response to a congressional request of 12 July, a memorandum you mention in a footnote early in your essay, one which I hoped that you might use to aid your narrative.

So, to begin, I failed to follow your advice to read just the text, and that is your fault. Your notes are better than popcorn. More and more as I went along in this narrative I wondered if this might be a most fine example of legal history at its best—important subject the treatment of which focuses upon both the general narrative and the specific narrative of procedure where procedure very soon merges into substance. I found that that the footnotes, not all of which I read, added to the excitement of the narrative. And make no mistake, the narrative is a gut buster of excitement given the context of both 1861 and the history of historical commentary that followed combined.

Maybe better minds than mine, an easy thing, will find me wrong. But until I see such I will begin to share this essay with a bunch of friends in the world of the law and in the world of history with a gladness that I have shared a special gift of fine scholarship, a gift that I thank you for. Best.


Citation: Seth Barrett Tillman, Kind Words from a Friend in the States, New Reform Club (May 19, 2017, 7:15 AM), http://tinyurl.com/l2qqczm 



Thursday, May 18, 2017

Reviving the Legislative Veto

FROM:      Seth Barrett Tillman
                   Maynooth University Department of Law

TO:            NAME
                   [Think Tank]

DATE

RE:  Query: Why is a revived legislative veto over federal administrative regulations a good project for [Think Tank]? Answer: A legislative veto is good governance, but it would also be a powerful tool in the arsenal of those who support limited government

I sent you a paper laying out a legal defense for reviving congressional efforts to pass a constitutionally valid legislative veto, notwithstanding the decision of the U.S. Supreme Court in INS v Chadha, 462 U.S. 919 (1983). See Seth Barrett Tillman, A Textualist Defense of Article I, Section 7, Clause 3, 83 Tex. L. Rev. 1265 (2005).[1] That defense is part of the wider originalist project. You have asked me to lay out why such a legislative veto project would be of interest to [think tank]. The answer is simple: a legislative veto is good governance, but it would also be a powerful tool in the arsenal of those who support limited government.

Today, federal control over American life flows out of the New Deal regulatory state, where administrative regulations are issued by administrators, officers, and multimember commissions. These administrators are not elected. Presidential oversight and control of the administrative apparatus is frequently weak and, often, only indirect, through the appointments and removal process. A legislative veto (actually a legislative disapproval order or knockout resolution issued by a single-house of Congress) is a means by which Congress can claw back overbroad discretion exercised by administrators. A legislative disapproval resolution knocks out the administrator’s regulation, at least until the President publicly vetoes the disapproval resolution.[2]

In the current system, administrators can take action without the President having to take public responsibility. A legislative disapproval resolution forces the President’s hand. The President can keep the proposed administrative regulation, but to do so he must take responsibility for it in a public way by vetoing the legislative disapproval resolution, or he must let the proposed administrative regulation fail. If the President takes public responsibility for his administrator’s order by vetoing the legislative disapproval resolution, the regulation is no longer the edict of a mere non-elected administrator. It is now the President’s regulation (too). In such circumstances, we now have finely tuned public, democratic accountability for the particular administrative regulation. The President cannot hide—i.e., public, democratic accountability—that’s good government.

Alternatively, if the President allows the legislative disapproval resolution to knockout the proposed regulation, we now have limited government through congressional oversight. If the administrator’s regulation fails, that’s limited government. To put it another way, a legislative veto raises the cost to the President when the administrative state attempts to issue a new regulation. If the cost of issuing an administrative regulation goes up, it is fair to suggest that the President, his subordinates, and Executive Branch agencies will issue fewer such regulations. Divided government—such as we have at this juncture—is more likely to produce such legislative disapproval resolutions. That is why this project is timely now; that is why this is the time to sell this project on Capitol Hill (even if it takes effect after the next election).

The legislative veto project is a win-win.[3] It is a win for democracy, accountability, transparency, and good governance norms. It is also a win for limited government. One should only be opposed to a revived legislative veto if one supports the New Deal project of insulating so-called administrative expertise from both traditional democratic oversight and modern good governance norms. Rely-on-the-experts types would oppose the legislative veto, but libertarians and conservatives, alike, should support it.

Seth

Seth Barrett Tillman, Reviving the Legislative Veto, The New Reform Club (May 18, 2017, 12:54 PM), http://tinyurl.com/knt43xg 




[1] See also Gary Lawson, Comment, Burning Down the House (and Senate): A Presentment Requirement for Legislative Subpoenas Under the Orders, Resolutions, and Votes Clause, 83 Tex. L. Rev. 1373 (2005); Seth Barrett Tillman, The Domain of Constitutional Delegations Under the Orders, Resolutions, and Votes Clause: A Reply to Professor Gary Lawson, 83 Tex. L. Rev. 1389 (2005); cf. Sanford Levinson, Comment, Assuring Continuity of Government, 4 Pierce L. Rev. 201 (2006), 4 U.N.H. L. Rev. 201 (2006).
[2] Just as two-thirds of both houses of Congress can override the President’s veto of a statute, two-thirds of both houses of Congress can also override the President’s veto of a (single-house) disapproval resolution. See U.S. Const. art. I, § 7, cl. 3, incorporating by reference U.S. Const. art. I, § 7, cl. 2.
[3] As a matter of first impression, my view is that single-house legislative disapproval orders, resolutions, and votes cannot bind the States. Federal statutes (if supported by an enumerated power) can bind the States because they are “supreme.” See U.S. Const. art. VI, cl. 2 (Supremacy Clause). But the binding force of the Supremacy Clause is limited to provisions of the Constitution, to treaties, and to federal statutes (passed with bicameralism and presentment). See id. Single-house resolutions are outside the scope of the Supremacy Clause. Cf. Roger Pilon, Into the Pre-emption Thicket: Wyeth v. Levine, 2009 Cato Sup. Ct. Rev. 85, 96 (“Given those constitutional principles, ‘[c]ongressional and agency musings . . . do not satisfy the Art. I, § 7 requirements for enactment of federal law and, therefore, do not pre-empt state law under the Supremacy Clause.’” (quoting Wyeth v. Levine, 555 U.S. 555, 587–88 (2009) (Thomas, J., concurring in the judgment))). 

Wednesday, May 17, 2017

"Hi, The Times? It's me, #ComeyMemo."

Is the #ComeyMemo out yet? Or is the unclassified document still paying its way better as a hashtag while phoning in selected excerpts to the NY Times? Former FBI Director James Comey might have brought it up during Senate questioning – had he truly believed he was being leaned on, that is. His earliest predecessor, on the other hand, had a thing for keeping secret files, just in case anyone forgot who really runs things around here. These politicians sometimes get a real chip on their shoulder about being “elected by the voters” and “accountable to the people.”

Trump’s a buffoon, but the other gal dished state secrets and was much better at it, so I think we’re still ahead. But we have to wait for #ComeyMemo to show himself, and bring all his friends, before drawing any conclusions other than it makes for an exciting news cycle. There is cause for skepticism at a media that a week ago was reporting Trump's ice-cream cone as news:


The only takers for calling this a high crime and misdemeanor was Leon Kass, who might actually have been able to offer interesting cultural commentary to this otherwise waste of the viewing public's time. 

What increasingly worries me in the swamp Trump was elected to drain is the part cryptically referred to as “the intelligence community." Frankly, I'm not clear if this is the same thing as what we've recently been calling the "deep state," but it seems at least that's where much of it lives. I keep this Bill Kristol quote bookmarked to remind me to beware the "establishment conservatives" – they’re establishment so far ahead of being conservative it’s doubtful there’s time left in the day to be conservative at all:
Why would anyone prefer the deep state to anything? As Mark Steyn explains it: "When you step back and look at the ever more frenzied hamster wheel, what's really going on? Trump was elected on a pledge to "drain the swamp", and the swamp is finding, in Chuck Schumer's memorable formulation, "six ways from Sunday at getting back at you" - in order to ensure that the swamp remains undrained, that nothing changes, that Big Government gets bigger, and twenty trillion in debt rises to thirty, and the armies of the undocumented continue to pour across the border..."


 We’re not stuck in the middle between clowns and jokers. That’s the pollyannish view that muses, “if only we could have someone competent.” It’s the competent ones that should strike fear in the heart of a free people. Political enemies and buffoons share at least one virtue in common: they’re transparent about being enemies and buffoons. It’s the ones who call themselves friends that are in position to put the knife in. “My God, this is a hell of a job!" said President Harding to William Allen White. " I have no trouble with my enemies. I can take care of my enemies all right. But my damn friends, my Goddamn friends, White, they’re the ones that keep me walking the floor nights!”


Trump, buffoon that he is, has gotten ensnared in D.C. scandals with “deep state” types leaking all over the place, media types spinning it, all furthering their own agendas – after all, “[a] leaker isnot a disinterested provider of information, but a character in the drama, withhis own motivations” – with the end result being the status quo stays in place. “You can't see the tsunami for the leaks.” The only thing not leaking is the swamp. 

Tillman on Irish National Radio on President Trump


Today with Sean O’Rourke, RTÉ Radio 1 (May 17, 2017, 10:00 AM) (panellists Tillman & Donnelly), http://tinyurl.com/kmccomf (at 06:13ff of 02:04:00) 

Tillman on Irish national radio on President Trump.

Seth


Seth Barrett Tillman, Tillman on Irish National Radio on President Trump, New Reform Club (May 17, 2017, 7:18 AM), http://tinyurl.com/myzujfm 



Sunday, May 14, 2017

Lifecycle of an Academic Article



Posted at The New Reform Club: Mar. 19, 2017, http://tinyurl.com/kos696z ;

Posted on SSRN: Mar. 21, 2017, https://ssrn.com/abstract_id=2937186 ;

Link on Instapundit: Apr. 24, 2017, https://pjmedia.com/instapundit/263257 ;

Abstact on Legal Theory Blog: Apr. 25, 2017, http://tinyurl.com/kne75xq ;

Abstract Posted on the Originalism Blog: Apr. 26, 2017, http://tinyurl.com/kte6d58 ;

Submitted to Journals: April 2017 ; 

Offer Extended & Immediately Accepted: April 2017—Harvard Journal of Law & Public Policy ;    

Tweet on Publication: April 27, 2017http://tinyurl.com/k5mo6lt ;

Article published electronically, as a preview, absent final pagination: on May 16, 2017http://www.harvard-jlpp.com

Article to be published electronically, in final form: forthcoming circa June 2017 ; 

When will I have my reprints? Whither reprints?; and, 

Citations?: Now we play the waiting game. http://tinyurl.com/h4sro8p .

Seth 


Seth Barrett Tillman, Business Transactions and President Trump’s “Emoluments” Problem, 40 Harv. J.L. & Pub. Pol’y (forthcoming circa June 2017), https://ssrn.com/abstract_id=2937186, http://www.harvard-jlpp.com/, http://www.harvard-jlpp.com/archive/ 


Seth Barrett Tillman, Lifecycle of an Academic Article, The New Reform Club (May 14, 2017, 5:42 AM), http://tinyurl.com/mrdxla2

Wednesday, May 10, 2017

How Seth Barrett Tillman Has From Time To Time Been The Recipient Of Undeserved Goodwill For Being Irish




But see, e.g., Zephyr Teachout, The Anti-Corruption Principle, 94 Cornell L. Rev. 341, 354, 361–62 (2009) (arguing that the Foreign Emoluments Clause applies to members of Congress); id. at 366 (arguing that the Foreign Emoluments Clause applies to the presidency); Norman L. Eisen & Richard W. Painter, Trump Could Be in Violation of the Constitution His First Day in Office, The Atlantic, Dec. 7, 2016, http://tinyurl.com/zlgrh6u (“The [Foreign] Emoluments Clause applies to all persons holding an office of trust or profit with the United States government—no exceptions. It applies to the president, the vice president, and the members of Congress. No one is above the law.”). 

Seth

Citation: Seth Barrett Tillman, How Seth Barrett Tillman Has From Time To Time Been The Recipient Of Undeserved Goodwill For Being Irish, The New Reform Club (May 10, 2017, 6:12 AM), http://tinyurl.com/kd5v2wo


Friday, April 28, 2017

Have I Got A Sweet Deal For You ...


Are you a law student in desperate search of an interesting topic for a note? … Or, are you a fundamentally burned out and deeply disappointed legal academic tired of writing papers lacking relevance and resonance—papers which no one reads—papers which are never cited and are soon forgotten? … Because if so, have I got a sweet deal for you. You can have this idea—with no money down, and at no cost to you. But you will want to post your work-product on SSRN or otherwise publish prior to May 26, 2017.

In regard to Citizens for Responsibility and Ethics in Washington v. President Donald J. Trump, Civ. A. No. 1:17-cv-00458-RA (S.D.N.Y. Jan. 23, 2017) (Abrams, J.), 2017 WL 277603, I have written:

In regard to the Presidential Emoluments Clause, where the federal government or a state government engages in a business transaction with a private commercial entity owned (in whole or in significant part) or controlled (in whole or in significant part) by the President of the United States (in his private capacity), but not with the President, it is not clear that such a transaction falls under the aegis of the Presidential Emoluments Clause. Indeed, no court of the United States (of which the Author is aware) has had occasion to resolve this novel threshold question of pure law. This issue must be resolved in any litigation seeking to assert that the Presidential Emoluments Clause applies to such business transactions with commercial entities affiliated with the President.

Much the same can be said in regard to the Foreign Emoluments Clause. No court of the United States (of which the Author is aware) has had occasion to determine whether a foreign state owned or foreign state controlled commercial entity is a “foreign state” for the purposes of the Foreign Emoluments Clause. This is a novel threshold question of pure law which must be resolved in any litigation seeking to assert that the Foreign Emoluments Clause applies to business transactions between a constitutionally proscribed federal officeholder (i.e., an officer . . . under the United States) and a foreign state owned or foreign state controlled commercial entity. Similarly, where a foreign state engages in a business transaction with a private commercial entity owned (in whole or in significant part) or controlled (in whole or in significant part) by a constitutionally proscribed federal officeholder (in his private capacity), but not with the officeholder, it is not clear that such a transaction falls under the aegis of the Foreign Emoluments Clause. Indeed, no court of the United States (of which the Author is aware) has had occasion to resolve this novel threshold question of pure law. This too must be resolved in any litigation seeking to assert that the Foreign Emoluments Clause applies to business transactions between private commercial entities owned or controlled by a constitutionally proscribed federal officeholder and a foreign state. Finally, where a transaction has a commercial entity on both sides, as opposed to an actual foreign state and an actual constitutionally proscribed federal officeholder, the policy concerns animating the Foreign Emoluments Clause must be much attenuated.[1]

Feel free to agree; feel free to disagree. Feel free to contact me for advice. But do get cracking because the clock is ticking … and if you do not act now, someone else is liable to make use of that golden ticket.

PS: Don’t forget to address local government too! Plaintiff writes: “Just as the Foreign Emoluments Clause bars payments not only from foreign states, but also their subdivisions and instrumentalities, the Domestic Emoluments Clause bars payments not only from the federal government and state governments, but also their respective instrumentalities and subdivisions. The Supreme Court has long viewed local governments as ‘mere[]. . . departments’ of the state. Ysursa v. Pocatello Educ. Ass’n, 555 U.S. 353, 362 (2009).” You cannot make this stuff up.

Seth 


Seth Barrett Tillman, Have I Got A Sweet Deal For You …, The New Reform Club (Apr. 28, 2017, 8:07 AM), http://tinyurl.com/lw5ek5u  





[1] Seth Barrett Tillman, Business Transactions and President Trump’s “Emoluments” Problem, 40 Harv. J.L. & Pub. Pol’y (forthcoming), https://ssrn.com/abstract=2957162. See generally, e.g.See generally, e.g., David B. Rivkin Jr. & Lee A. Casey, Opinion Editorial, Trump doesn’t need a blind trust, The Washington Post, Nov. 23, 2016, 12:09 AM EST, at A17 (available on Nexis); David B. Rivkin Jr. & Lee A. Casey, Opinion Editorial, It’s unrealistic and unfair to make Trump use a blind trust, The Washington Post (Nov. 22, 2017, 6:37 PM EST), https://tinyurl.com/ljrudrm. To put it another way, American law has a rich tradition recognizing the independent legal personality of corporations and other business entities.