Everything you say can and will be used against you.

Tuesday, January 29, 2019

About Brianne Gorod


Jan. 29, 2019: 

Dear Friend, 

I am surprised how many, many good people continue to take an active interest in all this. The Hamilton Documents ImbroglioIt is all water under the bridge .... 

You ask if: “I ever heard from Brianne Gorod?”—No, not a word. And I don’t fault her for not doing so. She represents a client, and anything she says—even in private—could potentially injure that client or limit her scope later in litigation. She owes her client all her loyalty, and me—none. And that means she has to take it on the chin a bit. But you’ll notice that I was not part of any pile on against her or anyone else. Once my defense (Reports of My Death) went live, I urged third parties on Twitter (and other social media) to give all of my interlocutors time.** I did not stick any sword in anyone or ask anyone to get them. And I still have not. I have—by and large—let it go. (Though there was a recent flare-up at a peer reviewed journal ….) 

Amici, Slate, and third parties on Twitter and other social media—they are situated differently from Brianne. Amici etc—they don’t have clients.


Thanks for asking.

Seth 






Seth Barrett Tillman, About Brianne Gorod, New Reform Club (Jan. 29, 2019, 8:45 AM), <https://reformclub.blogspot.com/2019/01/about-brianne-gorod.html>. 

Dublin, London, and Brussels—Who will be Responsible for the Border?


Professor AAA states: “The UK also never offered suggestions for how to get a [post-Brexit] transition to operate smoothly.” If Professor AAA means the Irish-Northern Ireland (NI) border, then the UK has said simply that it will not put up a border wall. It is EU law which will make (or is likely to make) the Irish put up a customs/revenue wall [or other border controls]. How Ireland and the EU will implement EU law is not a question that the UK should be asked to solve—that’s entirely a question for the EU and its institutions, Ireland and its people, and other EU member states and their peoples. Professor AAA’s argument here (made in many fora [by many other people]) has always been nothing more than a distraction: political responsibility for the border (at least initially) will lie with Dublin and Brussels, not London. It is not the job of the UK to solve an EU problem under EU law.

That is what “Leave” was all about.

Seth

Welcome Instapundit Readers!

Seth Barrett Tillman, Dublin, London, and Brussels—Who will be Responsible for the Border?, New Reform Club (Jan. 29, 2019, 7:59 AM), <https://reformclub.blogspot.com/2019/01/dublin-london-and-brusselswho-will-be.html>. 


Monday, January 28, 2019

Extract from: William Baude & Stephen E. Sachs' Grounding Originalism

Extract from: William Baude & Stephen E. Sachs, Grounding Originalism, 113(6) Nw. U. L. Rev. (forth. circa Apr. 2019):

Consider, for instance, the many briefs spent discussing history and original meaning in the recent litigation over the [Foreign] Emoluments Clause.[196] Indeed, at one point an ally of the plaintiffs believed that she had uncovered documents in the National Archives refuting the work of a leading originalist scholar of the Clause.[197] The purported discovery was widely and excitedly discussed, because it was thought to address an important argument.[198] And when the originalist scholar produced extensive documentary evidence and expert opinion undermining the discovery’s significance,[199] it worked: most of those who had challenged him on that particular point reconsidered and confessed error,[200] even as they continued to press originalist arguments on other points. 

Id. at 32 & n.196, 33 & n.199 (citing Tillman’s Declaration in CREW v. Trump and Tillman’s Work-in-Progress post on New Reform Club), <https://ssrn.com/abstract=3324308>. 

196. See Seth Barrett Tillman, A Work in Progress: Select Bibliography of Court Filings and Other Sources Regarding the Foreign and Domestic Emoluments Clauses Cases, The New Reform Club (Feb. 28, 2018), https://reformclub.blogspot.com/2018/02/a-work-in-progress-select-bibliography.html (citing sources).

197. See Brianne J. Gorod, What Alexander Hamilton Really Said, Take Care Blog (July 6, 2017), https://takecareblog.com/blog/what-alexander-hamilton-really-said; Brianne J. Gorod, A Little More on Alexander Hamilton and the Foreign Emoluments Clause, Take Care Blog (Aug. 1, 2017), https://takecareblog.com/blog/a-little-more-on-alexander-hamilton-and-the-foreign-emoluments-clause.

198. Jed Shugerman, Questions about the Emoluments Amicus Brief on Behalf of Trump, Shugerblog (Aug. 31, 2017), https://shugerblog.com/2017/08/31/questions-about-the-emoluments-amicus-brief-on-behalf-of-trump-and-its-use-and-misuse-of-historical-sources/; Gautham Rao & Jed Handelsman Shugerman, Presidential Revisionism, Slate (July 17, 2017), http://www.slate.com/articles/news_and_politics/jurisprudence/2017/07/the_new_york_times_published_the_flimsiest_defense_of_trump_s_apparent_emoluments.html.

199. Seth Barrett Tillman, The Reports of My Death Were Greatly Exaggerated (Sept. 21, 2017) (unpublished manuscript), http://ssrn.com/abstract=3037107 [prior hypertext link corrected by Tillman]. [Tillman adding alternative citation to the same soruce: Declaration of Seth Barrett Tillman, Lecturer (Exhibit D), in Amicus Curiae Scholar Seth Barrett Tillman’s and Proposed Amicus Curiae Judicial Education Project’s Response to Amici Curiae by Certain Legal Historians, CREW v. Trump, Civ. A. No. 1:17-cv-00458-GBD (S.D.N.Y. Sept. 19, 2017) (Daniels, J.), ECF No. 85-5, 2017 WL 7795997, https://ssrn.com/abstract=3037107.]


200. Jed Shugerman, An Apology to Tillman and Blackman, Shugerblog (Sep. 23, 2017), https://shugerblog.com/2017/09/23/an-apology-to-tillman-and-blackman/; Jed Shugerman et al., Our Correction and Apology to Professor Tillman, Shugerblog (Oct. 3, 2017), https://shugerblog.com/2017/10/03/our-correction-and-apology-to-professor-tillman/.

Citation:
Seth Barrett Tillman, Extract from: William Baude & Stephen E. Sachs’ Grounding Originalism, New Reform Club  (Jan. 28, 2019, 1:18 PM), <https://reformclub.blogspot.com/2019/01/extract-from-william-baude-stephen-e.html>. 


But see Norm Eisen (@normeisen), Twitter (July 6, 2017, 7:28 AM), https://twitter.com/NormEisen/status/882969451557249025 [https://perma.cc/GBY3-HRK4] (“[D]evastating @BrianneGorod rebuttal of ‘evidence’ for fringe claim that emoluments clause doesn[’]t apply to POTUS” (emphasis added)); 


But see Glenda Gilmore (@GilmoreGlenda), Twitter (Aug. 31, 2017, 4:53 AM), https://twitter.com/GilmoreGlenda/status/903224236843704320 [https://perma.cc/53TX-VDJ5] (“Trump lawyers use 1 Hamilton letter for argument; bury 2nd Hamilton letter to the contrary written same day. Historians know better.” (emphasis added)); 


But see Joshua Matz, Foreign Emoluments, Alexander Hamilton & a Twitter Kerfuffle, Take Care (July 12, 2017), https://takecareblog.com/blog/foreign-emoluments-alexander-hamilton-and-a-twitter-kerfuffle [http://perma.cc/66Z7-VY76] (“It’s hardly an impressive defense to mislead so dramatically in the NYT but then say that it’s all okay, since a few years ago I had a footnote in a law review article alluding vaguely to this contrary material.” (emphasis added)); id. (noting that Tillman’s publications are “low-profile academic articles”); 


But see Jack Metzler (@SCOTUSPlaces), Twitter (Aug. 31, 2017, 8:29 AM), https://twitter.com/SCOTUSPlaces/status/903278565902491648 [https://perma.cc/43YD-2LYS] (“Tillman uses the document repeatedly when it suits him, and then misrepresents it as ‘nearly identical’ when it refutes his central point.” (emphasis added)); 


But see Mark Joseph Stern (@MJS_DC), Twitter (Aug. 1, 2017, 11:36 AM), https://twitter.com/mjs_DC/status/892454064532934658 (“@BrianneGorod went to the National Archives to debunk the claim that the Emoluments Clause doesn’t apply to Trump[.]” (emphasis added) (showing that the tweet was subsequently deleted with the link now indicating: “Sorry, that page doesn’t exist!”)); 


But see Laurence Tribe (@tribelaw), Twitter (July 6, 2017, 8:00 AM), https://twitter.com/tribelaw/status/882977561986420736 [https://perma.cc/9PAF-BXDP] (“Read this devastating reply to the weird claim that Hamilton thought Presidents could accept Foreign Emoluments[.]” (emphasis added)); 


But see Laurence Tribe (@tribelaw), Twitter (July 13, 2017, 6:25 PM), https://twitter.com/tribelaw/status/885671589542588416 (“From the ‘This Speaks For Itself’ Department: Foreign Emoluments, Alexander Hamilton & A Twitter Kerfuffle”); 


But see Laurence Tribe (@tribelaw), Twitter (Aug. 1, 2017, 8:00 AM), https://twitter.com/tribelaw/status/892381453312503808 [https://perma.cc/W8VR-W4XW] (“A National Archives visit obliterates @SethBTillman’s thesis that [President] DJT isn’t covered by the Foreign Emoluments Clause” (emphasis added)); 


But see Laurence Tribe (@tribelaw), Twitter (Sept. 1, 2017, 7:20 PM), https://twitter.com/tribelaw/status/903804726717841409 [https://perma.cc/GS65-VAYA] (“Another devastating critique of Tillmania by @jedshug[.]” (emphasis added)). 

I have been blocked by Professor Glenda Gilmores (@GilmoreGlenda), Professor Simon Sterns (@ArsScripta), and Jack Metzlers (@SCOTUSPLACES) twitter feeds.





Letter to The Guardian: Trump, Venezuela, and the EU



Letter to the Editor:
guardian.letters@theguardian.com

Jan. 28, 2019



Re: Oscar Guardiola-Rivera, What has happened in Venezuela is a coup. Trump’s denial is dangerous, The Guardian (Jan. 28, 2019, 08.00 GMT), <https://tinyurl.com/yarrad82>.              

The EU’s foreign policy chiefFederica Mogherinihas announced: “In the absence of an announcement on the organisation of fresh elections with the necessary guarantees over the next days, the EU will take further actions, including on the issue of recognition of the country’s leadership in line with article 233 of the Venezuelan constitution.” [https://tinyurl.com/ydhjna78] So contrary to Dr Guardiola-Rivera, it is not just President Trump and his right-wing Latin-American allies that have a problem with the legitimacy of the Maduro regime and with Maduro’s personal democratic bona fides from his “election” in 2018. But if Dr Guardiola-Rivera believes the EU errs here, and that it is facilitating a coup against a legitimate democracy, then just maybe he ought to support Brexit and work towards peacefully disempowering right wing imperial institutions (like the EU) that would undercut legitimate foreign elected governments?

Will Dr Guardiola-Rivera take such a position—and do so publicly? That would require brave consistency. Something which is in very short supply. It is just so much easier to make fun of President Trump—a target upon which we can all agree deserves our ire. The funny thing is: people from all over the world are trying to get into Trump’s America, and Venezuelans by the millions are trying to escape from Maduro’s nightmare.

Seth Barrett Tillman

/s/

Seth Barrett Tillman, Lecturer
Maynooth University Department of Law
New House (#53)
Maynooth University
Maynooth
County Kildare
Ireland W23 F2H6
(listing academic affiliation for identification purposes only)

Seth Barrett Tillman, Letter to The Guardian: Trump, Venezuela, and the EU, New Reform Club (Jan. 28, 2019, 10:27 AM), <https://reformclub.blogspot.com/2019/01/letter-to-guardian-trump-venezuela-and.html>

Trump and Our Medieval Elites




Professor AAA: “I’m inclined to stick with the argument that Professor BBB and I made that Trump is significantly worse than any of our past worthies.”

Jackson: Trail of Tears.
Wilson allowed the civil service to become (re)segregated, and according to some, he actively facilitated and supported that process. [And just why were we in WWI?]
FDR: 100,000+ Japanese-Americans detained. German-Americans and Italian-Americans had special curfews.
Nixon: [___]

But Trump is worse?

Has Trump started a major land war in Asia absent congressional consent? I must have missed that. I might agree that Trump’s rhetoric is coarse, but I think actual deeds matter more. Exactly what has Trump done—singly or collectively—that can compare to the presidents listed above?

Professor AAA—If you cannot answer that question—should I not conclude that George Will’s and your objection to Trump is largely rooted in Trump’s rejection and his supporters’ rejection of elite wordsmiths laying claim to a monopoly of wisdom and power?

It all reminds of the history of the Middle Ages in England when the common lawyers first sought judicial and crown administrative positions, which up to then had been the preserve of churchmen. The churchmen did not think much of the common lawyers; the churchmen thought they had a prescriptive entitlement to a monopoly on such posts—and that the common lawyers were (to use your term) “mountebanks.”

I think the various kings and queens were more interested in efficiency and success. I know I am.

Seth

Seth Barrett Tillman, Trump and Our Medieval Elites, New Reform Club (Jan. 28, 2019, 7:19 AM), <https://reformclub.blogspot.com/2019/01/trump-and-our-medieval-elites.html>. 

Welcome Instapundit Readers!



Sunday, January 27, 2019

BREXIT: Is Opinion Shifting?

This is a list of confirmed Remainers, who have since changed their mind. 
I intend to update this list from time to time. 

@DPJHodges, DAN HODGES: I was a die-hard Remainer. But arrogant MPs have made me a hard Brexiteer, Mail Online (Jan. 27, 2019, 12:24 AM), <https://www.dailymail.co.uk/debate/article-6635785/DAN-HODGES-die-hard-Remainer-arrogant-MPs-hard-Brexiteer.html>. 

Seth

Seth Barrett Tillman, BREXIT: Is Opinion Shifting, New Reform Club (Jan. 27, 2019, 6:52 AM), <https://reformclub.blogspot.com/2019/01/brexit-is-opinion-shifting.html>. 

Saturday, January 26, 2019

Conlawprof & Casablanca: “I’m shocked, shocked ....”



Rick: “How can you close me up? On what grounds?” 
Captain Renault: “I’m shocked, shocked to find that gambling is going on in here!”

Professor ZZZ: “I am shocked that constitutional law professors are [T]rump supporters. Absolutely stunned.”

Tillman: I don't believe I have said anything on this listserv from which you could fairly derive that I am a Trump supporter. If it “shocks” you that in a constitutional law listserv there might be Trump supporters—in a nation where around 48%** of the people voted for Trump—then that might tell one & all something about the real state of the legal professoriate. My comments have largely gone to (what I see as) overheated hyperbole. Professor ZZZ has confirmed my point better than I possibly could.

Seth

PS: I ran for Congress as a Democrat in 1996. See Rhodes Cook & Alice V. McGillivray, U.S. Primary Elections, 19951996: President, Congress, Governors: A Handbook of Election Statistics 102 (1997), <http://tinyurl.com/j2q4kom>; see also <http://tinyurl.com/jll5fkg>; <http://tinyurl.com/hevgdtt>; <http://tinyurl.com/zm3hsuv>; <http://www.washingtontimes.com/elections/IL/districts/IL09/profile/>. 

Seth Barrett Tillman, Conlawprof & Casablanca: “I’m shocked, shocked ....,” New Reform Club (Jan. 26, 2019, 4:30 PM), <https://reformclub.blogspot.com/2019/01/conlawprof-casablanca-im-shocked-shocked.html>. 

**Wikipedia reports that Trumps share of popular vote was 46.1%. <https://en.wikipedia.org/wiki/2016_United_States_presidential_election>

Thursday, January 24, 2019

Covington and "The Liberal Bargain"

Two left-of-center writers offered unusual counsel about the Covington story. First, by way of context:

Last Friday in the wake of the March for Life event, an approximately 90-second video clip, depicting an adult man, chanting or singing while playing a ceremonial drum, standing inches from the face of a high school boy at the steps of the Lincoln Memorial, went "viral." The putative newsworthiness of the clip was that, because the high school boy was "smirking" (as opposed to what is not said), and because he was standing still (as opposed to what is not said), the boy therefore was engaged in some form of harassment or wrongdoing against the man.

It is not clear whether the boy's wearing a "Make America Great Again" hat was an element of his alleged wrongdoing, but it is clear at least it was an aggravating factor. It is also not yet clear whether his being Catholic was an element of his alleged wrongdoing, but it is clear at least it was an aggravating factor. From his Catholicism, it was apparently supposed the boy is heterosexual and "cis," supplying another element, or at least an aggravating factor -- to his alleged wrongdoing. (It has also been alleged he is "rich," another alleged fact of as yet undetermined probative value.) It is also not yet clear whether the adult man's being a person of color is an element of the boy's alleged wrongdoing, but that too at the minimum was another aggravating factor.

The ultimate fact apparently drawn is that the boy harbors impure beliefs, and he has apparently refused to recant them.

With this evidence in hand, and without awaiting further evidence, multiple journalists and professors, it has been reported, called for the "doxxing" of the high school boy, his friends, and their families. This doxxing -- the release of their personal information and addresses -- was for the stated purpose that they might suffer harassment and embarrassment, and perhaps even physical harm or even death, in satisfaction of justice for the boy's alleged wrongdoing and impurity.

Exculpatory evidence subsequently developed showing the high school boy and his friends were the ones who had faced harassment, and that the adult man had approached the boy, not the other way round. Many journalists who had called for the doxxing have apologized; at least one journalist who called for the death of the boy and his friends has been fired. But many other prominent journalists maintain the allegations of the boy's impurity and/or wrongdoing.

In this context, left-liberal Mother Jones blogger Kevin Drum maintained this is all a non-event:
L'Affaire Covington is, at bottom, about a bunch of teenage boys. No matter who's right, it ranks about #1000 on my list of things to worry about. I hope it doesn't turn into a hill for everyone to die on.
This might have been true when L'Affaire Covington was still just L'Incident Covington. That is, before people in places of power publicly complained of the boy's moral offense and demanded summary punishment, even unto death. But it is too late for that. The "this does not rate" take is not available to us any longer. L'Affaires of this nature, for better or worse, have L'Implications.

So said Rod Dreher (author, The Benedict Option; ed., The American Conservative blog), who responded: "Awfully easy to say if it’s not YOUR teenage boy. K[evin] D[rum] would never say this about any boys but white heterosexual boys."

Damon Linker interjected on the side of ruining-lives-if-it's-just-a-bunch-of-teenage-boys-is-nothing-to-bother-about. Linker writes at The Week, but is well known among among religious political thinkers as being the former editor First Things while believing Fr. Neuhaus had violated the "liberal bargain" that "religious believers are required to leave their theological passions and certainties out of public life...." This story, involving passions and certainties that would make a theologian blush, ought to have moved Linker's needle. But Linker cast his lot with Drum that this was all ho-hum:
Aw come on. KD is right. Any event that effects a particular person is really important to that person. That doesn’t mean it should matter very much to our culture or country.
Linker is an influential journalist about the intersection between faith and politics (the truncated version of what we used to think of as culture, and what we used to think of as country). Linker is one of our public intellectuals. Linker has his foot in both worlds: he has written in conservative religious publications in the past, and he now writes for a secular publication. All to the good, one should think.

Sadly, however, Linker missed the big political-religious implication of this story. In fact, not only did he miss the political-religious implications, he missed that it might even be a place to look for political-religious implications. The story, Linker agreed, is only about "a bunch of teenage boys," and therefore nothing that should "matter very much to our culture or country." The religious conscience of an individual, Linker believes, has nothing to say about our public life: how much less the conscience of "a bunch of teenage boys"?

Linker, if he still reads his former magazine, might have at least a passing acquaintance with what Robert Bolt had to say about the relationship between mere "particular persons" and "really important events." But perhaps he overlooked it. Bolt's famous play, A Man for All Seasons, is about the futility of looking for any easy bargain, and Linker apparently overlooked that: Linker, demurring to Bolt's More, claims to have found the "liberal bargain" between the authority and conscience, between politics and theology, between man's law and God's law. The bargain is simply: stay out -- there's a clear line -- a "wall" -- between politics and theology.

But had Linker alighted upon this piece on Bolt's More, from his own former magazine, he might have reconsidered: when a person is caught "between two authorities," with "the commands of both being clear, [the question] was which authority was superior. At this extremity, God was no longer too subtle for him." Liberal bargain or no, More, great respecter of the state and greatly respected as a statesman, "obeyed God’s law and went to his death."

The state drives a hard bargain. The Covington boys and their families are learning that the state -- or the Fourth Estate in this case -- still does. Surely this implicates Linker's thesis?

But Linker apparently thinks high-minded, historic, "really important" events cannot be produced by mere "particular persons" like high school boys. To that Bolt also had something to say, in his preface to A Man for All Seasons. For while a story might or might not be "really important," it surely cannot be judged one way or the other by identifying the players as "particularly persons" (as opposed, one wants to know, to what?). One cannot conclude, that is, that nothing "should matter very much to our culture or country," that there is no "hill for everyone to die on," simply because it involves a mere morality play whose principal actors are merely "particular persons." For if this were the case, Bolt's play would have had no purchase on our imaginations. As Bolt wrote in the preface to A Man for All Seasons, a mere bunch of "particular persons" -- a particular person called Henry, who wanted a divorce from a particular person called Catherine, and to marry instead a particular person called Anne, with the sanction of a particular person called Cranmer, but wanting the sanction of a particular person called More -- depicting an event that mattered very much to our culture and our country (both England and, later, America), leading that particular individual More, a man of conscience, to a hill he was made to die on.

Here is how Bolt put it:
The economy was very progressive, the religion was very reactionary. We say therefore that the collision was inevitable, setting Henry aside as a colourful accident. With Henry presumably we set aside as accidents Catherine and Wolsey and Anne and More and Cranmer and Cromwell and the Lord Mayor of London and the man who cleaned his windows; setting indeed everyone aside as an accident, we say that the collision was inevitable. But that, on reflection, seems only to repeat that it happened. What is of interest is the way it happened, the way it was lived. For lived such collisions are. ‘Religion’ and ‘economy’ are abstractions which describe the way men live. Because men work we may speak of an economy, not the other way round. Because men worship we may speak of a religion, not the other way round. And when an economy collides with a religion it is living men who collide, nothing else (they collide with one another and within themselves).
Perhaps few people would disagree with that, put like that, and in theory. But in practice our theoreticians seem more and more to work the other way round, to derive the worker from his economy, the thinker from his culture, and we to derive even ourselves from our society and our location in it. When we ask ourselves ‘What am I?’ we may answer ‘I am a Man’ but are conscious that it’s a silly answer because we don’t know what kind of thing that might be; and feeling the answer silly we feel it’s probably a silly question. We can’t help asking it, however, for natural curiosity makes us ask it all the time of everyone else, and it would seem artificial to make ourselves the sole exception, would indeed envelop the mental image of our self in a unique silence and thus raise the question in a particularly disturbing way. So we answer of ourselves as we should of any other: ‘This man here is a qualified surveyor, employed but with a view to partnership; this car he is driving has six cylinders and is almost new; he’s doing all right; his opinions … ‘and so on, describing ourselves to ourselves in terms more appropriate to somebody seen through a window. We think of ourselves in the Third Person.
To put it another way, more briefly; we no longer have, as past societies have had, any picture of individual Man (Stoic Philosopher, Christian Religious, Rational Gentleman) by which to recognise ourselves and against which to measure ourselves; we are anything. But if anything, then nothing, and it is not everyone who can live with that, though it is our true present position. Hence our willingness to locate ourselves from something that is certainly larger than ourselves, the society that contains us.
Bolt goes on to remark, presciently, I think, and significantly, something about the "liberal bargain":
But I am not a Catholic nor even in the meaningful sense of the word a Christian. So by what right do I appropriate a Christian Saint to my purposes? Or to put it the other way, why do I take as my hero a man who brings about his own death because he can’t put his hand on an old black book and tell an ordinary lie?
For this reason: A man takes an oath only when he wants to commit himself quite exceptionally to the statement, when he wants to make an identity between the truth of it and his own virtue; he offers himself as a guarantee. And it works. There is a special kind of shrug for a perjurer; we feel that the man has no self to commit, no guarantee to offer. Of course it’s much less effective now that for most of us the actual words of the oath are not much more than impressive mumbo-jumbo than it was when they made obvious sense; we would prefer most men to guarantee their statements with, say, cash rather than with themselves. We feel – we know – the self to be an equivocal commodity. There are fewer and fewer things which, as they say, we ‘cannot bring ourselves’ to do. We can find almost no limits for ourselves other than the physical, which being physical are not optional. Perhaps this is why we have fallen back so widely on physical torture as a means of bringing pressure to bear on one another.
Linker, and Drum, should reconsider L'Affaire Covington. Or more accurately, since they have deemed L'Affaire unworthy of consideration, they should reconsider their nonconsideration. If Linker continues to insist there is a bargain to be had, why are so many refusing to take it? When the counsel is always "let's not make this a hill to die on," perhaps it is wise to ask our counselors if there is any way out of the hill country. For the only flat surfaces man has yet found have been the gallows.

Trump the Dictator—On Conlawprof (where else?)


Dear Professor ZZZ,

You wrote: “I’m also curious if others agree with me that Speaker Pelosi is acting in the highest tradition of Federalist 51 by standing up for her institution against a mountebank who is indeed using loyal employees of the executive branch as hostages to bend Congress to his dictatorial will?”

Pre-Jackson there was a view that presidents should only veto bills if they believed them unconstitutional. Post-Jackson presidents routinely veto bills on policy grounds. Trump is having a policy dispute with Pelosi about funding a wall. It is simple.

Pelosi and her majority are entitled to control access to their chamber. I don’t see anything high or low about such conduct—as a matter of principle, it is pretty mundane, although historically such restrictions against the President are quite exceptional.

I don’t see any value calling Trump’s veto threats as “using loyal employees ... as hostages.” Either side and both sides are fully entitled to play hard ball to get their spending priorities. This politics has to be allowed (even as a normative matter) to play itself out—otherwise elections are meaningless. Our super-majoritarian Constitution—for better and worse—has multiple veto gates. When an elected arm of the government makes use of a veto gate—particularly in support of an election pledge—we should characterize such conduct as ordinary democracy in action and as good politics, consistent with transparency and accountability norms.

Describing Trump as “bend[ing] Congress to his dictatorial will”—there you’ve entirely lost me with your casual use of “dictatorial.” What does “dictatorial” add? And how do you mean it? Has Trump stopped elections—state or federal? Has he launched unauthorized land wars? Has he ordered his prosecutors to round up his political opponents? Or, has he detained people based on ethnicity? Has he disobeyed any court rulings where he was a party? Or, has he ordered the government to disobey such rulings where the government was a party? Other than that you don’t care for Trump, his policies, and his rhetoric—what purpose does it serve to use such hyperbolic language?

In my view, the Copperheads had no good cause to call Lincoln a dictator. But I think they had better cause (then) to call Lincoln a dictator, than you have (today) to call Trump a dictator. I don’t say that because Trump, his policies, and his rhetoric should escape scrutiny, but only because I see nothing justifying your characterization of Trump or his will as “dictatorial.” 

That said: I think you are on much firmer ground using the language of “hostage” and “dictatorial” in regard to Trump than your and other (fellow) Americans’ doing so in regard to Brexit. Not because the purported wrongful substantive conduct at issue is so very different, but because it is (in my opinion) natural to think the stakes are higher when we speak about our own country. Likewise, we (in my opinion) tend to believe (and quite rightly I might add) that we are better informed about our own country than that of distant lands under different legal systems with different constitutional and political mores. All these factors might have a distinct tendency to lead one to rhetorical excess. By contrast, when Americans (i.e., those of us lacking any specific expertise about the UK and EU) use this sort of hyperbolic language about Brexit, I can only wonder:—What is driving this chorus of execration*

Seth 

Seth Barrett Tillman, Trump the Dictator—On Conlawprof (where else?), New Reform Club (Jan. 24, 2019, 4:37 AM), <https://reformclub.blogspot.com/2019/01/trump-dictator.html>.


*Arthur Conan Doyle, The Great Boer War 118 (1902), <https://tinyurl.com/ydxl6mv4>; see also Arthur Conan Doyle, The Complete Works of Arthur Conan Doyle/illustrated ch. 8 (2017), <https://tinyurl.com/yb4ndx77>; cf. Address to the Annual General Meeting of the West Midlands Area Conservative Political Centre (Birmingham, Midland Hotel April 20, 1968), <https://tinyurl.com/yaqzg2cf>. 

Welcome Instapundit readers!

Monday, January 21, 2019

More on Brexit on Conlawprof




Professor ZZZ writes as follows:

The Brexit negotiations have been justly mocked in the following fake dialogue which nonetheless captures the spirit of the process so far:
         UK: We want a unicorn
         EU: We don’t do unicorns. None of us have unicorns, There are no unicorns. 
         UK: But we promised unicorns and the people have spoken. We want unicorns
         EU: That’s not really our problem. There are no unicorns. 
         UK: You’re being unreasonable. We demand unicorns
         EU: There are no unicorns 
         UK: You are bullying us with your outrageous demands! 
         EU: Eh? We just said there are no unicorns because... well... there are no unicorns. 
         UK: OK! We get your game. You’re stalling! We’re prepared to walk away without a 
         unicorn you know! (Thinks: that’ll show’em)
EU: There are no unicorns.
UK: You bastards! Nigel was right. You’re out to destroy us. We’ll go and speak to Donald instead. HE has unicorns!
EU: Errrrrmmm, there ARE no unicorns.
UK: That does it. This is our final position. We want unicorns...right now... gold plated... fluent in [G]reek....ermmm.... or we’re off!
EU: Are you still here? There are no unicorns.
UK: DAMMIT! What about a packet of crisps then?
EU: Sorry we’re busy.

(bold added by Tillman)

The problem with this dialogue is it fails to communicate in what way the UK negotiators (or the pro-Leave side) were asking the EU for unicorns—things that don’t exist—as opposed to things that the EU refuses to negotiate about. It is possible that the author off this dialogue had some particular UK demand or demands in mind. But does Professor ZZZ or any other reader of this passage have the same thing in mind? I really doubt it. I don’t think there is any real meeting of the minds here. The mockery (in my opinion) is rooted in something less wholesome.

This is how I read this passage. The author and the people entertained by this passage know Brexit will be a failure, and they know that membership in the EU is an unqualified good. There is no burden on them to explain how the voters got it so wrong, or why those who knew better were unable to make themselves heard and understood. They know the UK negotiating position is wrong, and not just wrong, but downright crazy. But here too—there is no burden on them to explain why that is so. We are just supposed to laugh at the rubes, and those so silly to desire to live in an independent parliamentary state.

In the end, there is something to laugh at here, but it is (I suspect) not what Professor ZZZ had in mind.

Seth

Seth Barrett Tillman, More on Brexit on Conlawprof, New Reform Club (Jan. 21, 2019, 12:43 PM), <https://reformclub.blogspot.com/2019/01/more-on-brexit-on-conlawprof.html>. 

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Friday, January 18, 2019

Who Was On The Remain Side?



Just: 
Her Majesty's Government was for Remain. 
The leading opposition parties were for Remain. 
All the primary regional parties (but one
**) in Scotland (SNP), Wales (Plaid Cymru), and Northern Ireland (Sinn Fein**) were all for Remain. 
The Archbishop of CanterburyDo you really need me to tell you this?—was for Remain.
The EU was for Remain.
The diplomatic community was for Remain. 
Cameron, the incumbent Prime Minister, at No. 10 Downing Street, was for Remain, along with all his living predecessors: Brown (Is he still in the country?), Blair (Won't he ever leave the country?), and Major (Does he think anyone in the country is listening?A man's got to know his limitations.)
George Osborne, the incumbent Chancellor of the Exchequer, at No. 11 Downing Street, was for Remain, and he threatened the votersin his next proposed budgetshould they vote Leave. (You cannot so easily threaten voters who have a secret ballot!)
Jeremy Corbyn, the leader of the opposition, was 100% for Remain. (But no one really believed him.) 
The majority of members of Parliament were for Remain. (I am using British-English here.)
President Obama was for Remain. (People did listen to him—then they voted the other way—just ask Frank Field.
The bureaucracy and the Bank of England were for Remain. (Go Team Canada!)
The labour unions were for Remain. 
(What would P.J. O'Rourke say?)
Academia was overwhelmingly for Remain. (What would P.J. O'Rourke say?)
Industry (e.g., the Confederation of British Industry) was for Remain. 
The BBC and the largest part of the media were for Remain. (Where is Bill Buckley when you need him?)
All the magazines were for RemainThe Spectator excepted. (Who says Fraser Nelson cannot do anything right?)
The actors & arts communities were for Remain. (As of yet, no British headliners have emigrated. Tell Mark Steyn.)
The vast majority of student activists were for Remain. (British English again.)
Owen Jones and all the wannabe student activists were for Remain. 
Diana Mosley (had she lived past 2003) was for Remain. (Just ask Mark Steyn.)
The vast majority of the bar and the legal profession were for remain ... but I repeat myself. 

Now ask yourself: precisely, who was on the Leave side? 
Just some votersand what do they know? 

Seth Barrett Tillman, Who Was On The Remain Side?, New Reform Club (Jan. 18, 2019, 7:32 AM), <https://reformclub.blogspot.com/2019/01/who-was-on-remain-side.html>. 

**Compare E-mail from Rónán McLaughlin, Political Advisor, Sinn Fein, to Seth Barrett Tillman, (Jan. 18, 2019, 4:16 PM) ("Sinn Féin campaigned rigorously for a remain during the June 2016 EU referendum."), with Killian Foley-Walsh <https://twitter.com/Kilfalwol/status/1086236204574691329> ("As a point of order, the DUP campaigned for Leave, and SF didn’t register to campaign one way or the other."), and id. ("They [SF] were in favour of remain (or so they said...), but they bizarrely declined to campaign. It was and remains a very odd position."). Tillman: I regret my lack of clarity. As for the DUP—a regional party in Northern Ireland with 10 MPs at Westminster, it ....



The Old Whig Theory of the Executive Power



The Old Whig position is that the express powers (including the veto) vested in the presidency by Article II are not part of the “Executive Power” (except in the limited sense that they are powers appended to the presidency for him to execute). Today, we think of those powers as executive merely because we are used to the President doing them.

Those express powers are merely appendages to the presidency—in much the way that the Chief Justice presides over presidential impeachments (outside the context of the Judicial Power vested in the federal courts by Article III) and in much the same way that the Vice President presides over the Senate and has a vote on equal division (although the VP is not a constituent part (or member) of Congress or the Senate (as defined by Article I).

The Executive Power of Article II is wholly an excrescence of Congress’ twin (procedural) powers under Article I, Section 7, Clause 2 (to make statutes) and Article I, Section 7, Clause 3 (to make subsidiary legislation or statutory instruments: orders, resolutions, and votes). That is why Article II does not have to mimic Article I’s language about “herein granted”. In other words, because Congress’ powers are already limited to the subject matters “herein granted” and because all Executive Power flows from grants from Congress under 1/7/2 and 1/7/3, then the Executive Power is also limited to the same subject matters, viz., where Congress has the power to enact binding law (widely construed). Putting “herein granted” language in Article II would be wholly redundant. Congress can only gift or grant what it has and holds, and the President can only receive or take (as Executive Power) what Congress has the power to grant.

The Old Whig theory stands in opposition to the Hamiltonian theory of a core or residium of undefined executive power which exists absent an express grant of Article I, Section 7 authority from Congress. The Old Whig position is a unitary-executive-type position, like Hamilton’s, but it permits the executive to be a weak one, albeit one which cannot be stripped of the powers expressly granted by Article II.

I suspect that this is what Chief Justice Taney had in mind ... when he wrote:

The only power, therefore, which the president possesses, where the “life, liberty or property” of a private citizen is concerned, is the power and duty prescribed in the third section of the second article, which requires “that he shall take care that the laws shall be faithfully executed.” He is not authorized to execute them himself, or [even] through agents or officers, civil or military, appointed by himself, but he is to take care that they be faithfully carried into execution, as they are expounded and adjudged by the co-ordinate branch of the government to which that duty is assigned by the constitution.

Ex parte Merryman, 17 F. Cas. 144, 149 (C.C.D. Md. 1861) (No. 9487) (Taney, C.J.) (emphasis added).

I know most, including many well informed scholars, will not agree with this post. I can already hear the “chorus of execration”** ....

For a different take on executive power, see Oran Doyle, The Constitution of Ireland: A Contextual Analysis 102 (Hart Publishing 2018) (“[E]xecutive power consists either of textually explicit power, such as the Government
’s power in relation to foreign affairs, or of implicit State powers that necessarily inhere in Ireland and which fall to be exercised by the Government, such as immigration control power.”). 

See generally Charles L. Black, Jr., Correspondence: On Article I Section 7, Clause 3—and the Amendment of the Constitution, 87 Yale L.J. 896 (1978), <http://tinyurl.com/y4c6zwfa>; Charles L. Black, Jr., Some Thoughts on the Veto, 40(2) Law & Contemp. Probs. 87 (Spring 1976), <http://tinyurl.com/yygvtbho>; Charles L. Black, Jr., Amending the Constitution: A Letter to a Congressman, 82 Yale L.J. 189 (1972), <https://digitalcommons.law.yale.edu/fss_papers/2597/>; Seth Barrett Tillman, A Textualist Defense of Article I, Section 7, Clause 3: Why Hollingsworth v. Virginia was Rightly Decided, and Why INS v. Chadha was Wrongly Reasoned, 83 Texas L. Rev. 1265 (2005), <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=475204>; 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), <http://ssrn.com/abstract=556789>; 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), <http://ssrn.com/abstract=658003>. 

Seth

Seth Barrett Tillman, The Old Whig Theory of the Executive Power, New Reform Club (Jan. 18, 2019, 5:02 AM), <https://reformclub.blogspot.com/2019/01/the-old-whig-theory-of-executive-power.html>. 

**Arthur Conan Doyle, The Great Boer War 118 (1902), <https://tinyurl.com/ydxl6mv4>; see also Arthur Conan Doyle, The Complete Works of Arthur Conan Doyle/illustrated ch. 8 (2017), <https://tinyurl.com/yb4ndx77>cf. Address to the Annual General Meeting of the West Midlands Area Conservative Political Centre (Birmingham, Midland Hotel April 20, 1968), <https://tinyurl.com/yaqzg2cf>. 


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