Congress, the executive, and the FBI: what makes a "constitutional crisis"?

A few longer, meandering thoughts from a few Twitter threads overnight....

President Donald Trump fired Federal Bureau of Investigation ("FBI") Director James Comey last night. As I tweeted last October, the Office of Legal Counsel has long held the view that the FBI director may be removed "at the will of the president." The removal is certainly constitutional. There is a design of independence in the FBI director--he is given a 10-year position, which is designed to insulate him from political pressure, such as the pressure of renewal by the same president who hired him. But that does not mean that he is legally independent.

Much of the commentary that erupted has elided some of these legal and political distinctions. But it's worth noting that the firing itself has elided these distinctions. And it's worth emphasizing why our constitutional order is functioning quite well--hardly a "constitutional crisis." That said, the next political steps will be significant in the extent to which they protect the institutions, and the checks, the Constitution has created.

President Trump could have fired Mr. Comey for no reason whatsoever. But he didn't. He provided reasons linked to Mr. Comey's handling of Hillary Clinton's email server. As commentators have already noted, elements of this justification seem oddly post hoc or a solution in search of a justification. Some have speculated that the true reason was on account of the investigation into the possible relationship between members of the Trump campaign and Russia. (Indeed, President Trump mentions in the cover letter that he is gratified that Mr. Comey has informed him "on three separate occasions" that he is not under investigation.)

Here we see an important legal/political distinction. Legally, President Trump needed no such justification; politically, he felt compelled to come up with a reason. (Apparently, that reason has not been sufficiently persuasive to many.) Because of a political tradition of rarely firing the director of the FBI (President Bill Clinton is the only other to do so, after a lengthy investigation and fact-finding)

Some have opined about the problems of this regime--how can the President be able to fire at will the very person investigating him? Consider Justice Antonin Scalia's words in dissent in Morrison v. Olson (1988) (some citations excluded):

Is it unthinkable that the President should have such exclusive power, even when alleged crimes by him or his close associates are at issue? No more so than that Congress should have the exclusive power of legislation, even when what is at issue is its own exemption from the burdens of certain laws. No more so than that this Court should have the exclusive power to pronounce the final decision on justiciable cases and controversies, even those pertaining to the constitutionality of a statute reducing the salaries of the Justices. A system of separate and coordinate powers necessarily involves an acceptance of exclusive power that can theoretically be abused. As we reiterate this very day, "[i]t is a truism that constitutional protections have costs." While the separation of powers may prevent us from righting every wrong, it does so in order to ensure that we do not lose liberty.  The checks against any branch's abuse of its exclusive powers are twofold: First, retaliation by one of the other branch's use of its exclusive powers: Congress, for example, can impeach the executive who willfully fails to enforce the laws; the executive can decline to prosecute under unconstitutional statutes; and the courts can dismiss malicious prosecutions. Second, and ultimately, there is the political check that the people will replace those in the political branches (the branches more "dangerous to the political rights of the Constitution," Federalist No. 78, p. 465) who are guilty of abuse. Political pressures produced special prosecutors - for Teapot Dome and for Watergate, for example - long before this statute created the independent counsel. See Act of Feb. 8, 1924, ch. 16, 43 Stat. 5-6; 38 Fed. Reg. 30738 (1973).

As Professor Adrian Vermeule has carefully pointed out, the remedies here are political. And they are considerably more powerful, I think, than many otherwise anticipate.

First, the Senate has the power to consent to appointment of the next FBI director.

Second, the House can initiate impeachment proceedings.

Third, Congress can authorize the creation of a special prosecutor to investigate (who might still be removable at the will of the Attorney General).

Fourth, Congress can create an independent commission to investigate the matter.

The likelihood is perhaps another matter. It is worth noting that these political solutions work under limited circumstances: if party that controls the Senate (or Congress) is not the President's party, or if there is bipartisan support for these political solutions, or if one waits for an intervening election, or if Congress can override the President's veto on new legislation. There is some suggestion that this may be a bipartisan moment, at least among some influential moderate and independent Senators. Time will tell. But these are the costs of a political system like we have, as Justice Scalia pointed out in Morrison.

Two notable solutions are likely unavailable.

The first is the independent counsel--the very thing that was approved in Morrison v. Olson. Much time has passed since 1988, and many view Justice Scalia's dissent as unusually prophetic. It may be that the Supreme Court would overrule Morrison--indeed, Justice Elena Kagan offered remarkable praise for Justice Scalia's dissent, and it may well be the case that there are five votes to overturn Morrison. Some in Congress have already mentioned such a possibility, but I believe that would be dead on arrival in Congress, much less in the courts.

The second is a judicial remedy. The battle here will play out between Congress and the executive--and into the political realm in 2018, given our frequency of elections in the United States. The federal courts--absent, perhaps, weighing in on the constitutionality of some such possible new legislation in the future--will remain on the sidelines.

Finally, I've seen people refer to this as a "constitutional crisis," but, as Professor Orin Kerr notes, this phrase has become something too broad. This isn't the Civil War; this is a significant political controversy, to be sure, that will be carried out in Congress, in the executive, and in the election cycle. But it's something our Constitution is actually fairly equipped to handle. What the results will be, and whether one finds those results acceptable, is, I think, quite a different matter.

No, Gorsuch didn't "misstate" Citizen United's holding

With all due respect to Rick Hasen, I don't think Judge Neil Gorsuch "misstated" the holding of Citizens United v. FEC. Here are a couple of statements that arose during questioning:

Q: In Citizens United Justice Kennedy indicated the restrictions on campaign donations can only be justified by concerns about quid pro quo corruption. Now President Trump has said that the reason he made campaign donations was so that when he needs something from them they're there for me. His campaign contribution favors. Shouldn't Congress not the courts make the determination about the potential for corruption? Especially if we're talking about quid pro quos.
A: Senator, I think there is lots of room for legislation in this area that the Court has left. The Court indicate that if proof of corruption can be demonstrated that a different result may obtain [sic] on expenditure limits.
. . .
I think Citizens United made clear the quid pro quo corruption remains a vital concern and is subject for potential legislation and I think there is ample room for this body to legislate even in light of Citizens United. Whether it has to do with contribution limits, whether it has to do with expenditures limits, or whether it has to do with disclosure.

One basic problem is that Senator Patrick Leahy's question is almost incomprehensible. Recall that Citizens United was not about "campaign donations," (i.e., contributions to political campaigns), or even about contributions at all, but about independent expenditures. The quotations from Trump are a non sequitur.

So Judge Gorsuch attempts to return the discussion, and here it's apparent it's about campaign finance quite broadly Is there "lots of room for legislation," including that some "expenditure limits" may be upheld if there is "proof of corruption"?

I would argue yes on at least three fronts.

The first is expenditure limits (speaking about expenditure limits generally) have been upheld by courts, notably in Bluman v. FEC, which affirmed a ban on political expenditures by foreign nationals. (This is the reason why Justice Samuel Alito mouthed "not true" at the State of Union when President Barack Obama stated that Citizens United would "open the floodgates" for "foreign corporations to spend without limit in our elections.") As Mr. Leahy's question was broadly construed, Judge Gorsuch's answer is, I think, appropriately broadly construed.

Second, even narrower, I think it's still the case after Citizens United that some such expenditures could be restricted. For instance, if Congress demonstrates that the expenditures aren't truly "independent" but coordinated, they can squarely be regulated (consistently with Buckley v. Valeo). That is, there's still room to demonstrate that some expenditures aren't truly "independent."

Third, and still narrower, I think there's still room after Citizens United, with the appropriate record, to regulate truly independent expenditures. According to the majority in Citizens United:

The McConnell record was "over 100,000 pages" long, yet it "does not have any direct examples of votes being exchanged for . . . expenditures." This confirms Buckley's reasoning that independent expenditures do not lead to, or create the appearance of, quid pro quo corruption. In fact, there is only scant evidence that independent expenditures even ingratiate.

So now begins a construction of what this Court's holding means. Here there's language suggesting a lack of evidence demonstrating corruption justifying regulation. Does it mean that Congress is forever prohibited in this area? Professor Hasen argues yes, citing American Traditional Partnership v. Bullock, that the Court "would NOT consider evidence of corruption to justify a spending limit."

But that's not what Bullock holds--at least, in my reading of the case. Bullock states, "Montana’s arguments in support of the judgment below either were already rejected in Citizens United, or fail to meaningfully distinguish that case." Which expressly leaves open the possibility of meaningful distinguishing of the case! So the possibility remains open for regulation even after Citizens United.

There are three extremely important caveats to my line of reasoning.

The first is the unrealistic possibility that Congress would even legislate to regulate independent expenditures in the near future. But, of course, Judge Gorsuch is speaking to the possibility of legislation concerning expenditures.

The second is the unrealistic likelihood that the Court would ever view any record as "meaningful[ly] distinguishing" Citizens United, or offering sufficient evidence to suggest that quid pro quo corruption does exist concerning independent expenditures. But that unrealistic possibility of the acceptance of the Court is not expressly foreclosed by Citizens United's language--that is, Citizens United does not hold, as a matter of First Amendment doctrine, that independent expenditures can never be regulated. While some kinds of expenditures may well be regulated post-Citizens United, I imagine there's a matter of dispute about what kind of record would suffice for particular types of expenditures.

The third is that I probably am inclined to agree with a truncated, alternative take Professor Hasen offers, which is that Judge Gorsuch is "trying to soften [the] harshness" of Citizens United with his phrasing. And part of this is whether the real question posed is Citizens United in particular--independent expenditures from domestic corporations--or campaign finance quite generally. I think, to return to the beginning, the confusion of Mr. Leahy's question and the breadth of Judge Gorsuch's answer suggest that, charitably read, this answer is wholly appropriate. For those who are very specifically interested in the narrow issue of Citizens United, Judge Gorsuch's answer is a rather generous interpretation of the ability of Congress to regulate in this area, but, I think, still accurate. And for those who are interested in the more general campaign finance universe as Mr. Leahy's question suggests, it's wholly accurate and entirely defensible.

Jefferson v. Hamilton and House of Representatives v. Burwell

Last fall, a federal district court concluded that the House of Representatives had standing (PDF) to sue the Secretary of Health & Human Services for spending money not appropriated by Congress in violation of the Constitution, Article I, Section 9, Clause 7. Today, the court concluded (PDF) that the Secretary had, in fact, improperly spent such money.

Why did a court get involved in this challenge, rather than letting a legislative branch fight with the executive in the political realm? Perhaps a lesson from the Giles Resolutions is in order.

In 1793, a longstanding fight between Federalists and Republicans culminated in the Giles Resolutions, an effort led by Thomas Jefferson to censure Alexander Hamilton. (For an excellent history, do read Eugene Sheridan's article on the subject.)

Two of the resolutions raised in the by William Branch Giles of Virginia in February of 1793 read as follows:

1. Resolved, That is is essential to the due administration of the Government of the United States, that laws making specific appropriations of money should be strictly observed by the administrator of the finances thereof.
2. Resolved, That a violation of a law making appropriations of money, is a violation of that section of the Constitution of the United States which requires that no money shall be drawn from the Treasury but in consequence of appropriations made by law.

Federalist William Loughton Smith rejected these two resolutions, emphasizing that such critiques were "abstract propositions," raising specific concerns with the second proposed resolution:

It might with propriety be questioned whether, as a general rule, the position was well founded. A law making appropriations may be violated in the particulars without infringing the Constitution, which only enjoins that no moneys shall be drawn from the Treasury but in consequence of the appropriations made by law. This is only to say, that every disbursement must be authorized by some appropriation. Where a sum of money is paid out of the Treasury, the payment of which is authorized by law, the Constitution is not violated, yet there may have been a violation of the law in some collateral particulars. There may even have been a shifting of funds, and however exceptionable this may be on other accounts, it would not amount to that species of offence which is created by the Constitution.

The disputes about Hamilton's role as Secretary of the Treasury, and the House's role in policing executive officers, were myriad in these debates--could the House censure the officer and recommend that George Washington remove him from office, or should the House impeach the officer; were the other resolutions sufficient to address the concerns of Hamilton's behavior; did the facts suggest that Hamilton had actually spent money from the Treasury improperly.

But on these two resolutions, the House votes 32-25 not to take them up, and moved on to consider the other Giles Resolutions. This "abstract proposition" of the Appropriations Clause would not be fit for House consideration.

Pennsylvania Supreme Court expedites hearing on spurious Cruz eligibility claim

Recently, a state court in Pennsylvania found that Ted Cruz is a natural born citizen and entitled to ballot access. The Pennsylvania Supreme Court has expediting briefing in the case. The docket reflects that the appellant has a couple of amicus briefs on his side: one by Einer Elhauge at Harvard Law, another by Mary Brigid McManamon at Widener Law.

I use the adjective "spurious" in the title of this post not because I believe that it's obvious that Mr. Cruz is a natural born citizen; indeed, I've conceded that the question is closer than one may expect, and I have my own inclinations, but I've found Michael Ramsey's perspective to be the most persuasive in concluding that he is eligible.

Instead, it is because there is simply no requirement under Pennsylvania law that a citizen be "eligible" to obtain ballot access. Indeed, the very opposite is true.

I've written, extensively, about this very basic error in these qualifications disputes. There is no free-standing ability for courts to scrutinize qualifications of candidates for president. Instead, it is reserved to the states to administer ballot access. States can decide whether to list a candidate, or not list a candidate. One must refer to state law. To be sure, there is a concern that a state may list a candidate ineligible for office--but there is no federal right to keep an unqualified candidate off the ballot. Instead, such decisions reside in state law.

This is in part because there are many who may evaluate the qualifications of a candidate--voters, being one of them! But presidential electors can also decide whether a candidate is eligible or not, and decide not to vote for him. Indeed, many (but not all!) decided that Horace Greeley was no longer eligible after he died in 1872 after the election and cast votes for others.

The state court in Pennsylvania was in grave error when it concluded otherwise: "the Constitution does not vest the Electoral College with power to determine the eligibility of aPresidential candidate since it only charges the members of the Electoral College to select acandidate for President and then transmit their votes to the nation's 'seat of government.'" What does the power to "select" mean if it does not include the discretion to decide whether someone is fit for office--including, whether someone is eligible for office?

And the Court was wrong to conclude that Congress lacks this power, too: "no Constitutional provision places such power in Congress to determine Presidential eligibility. Moreover, other than setting forth the bare argument, the Candidate offers no further support for the contrary proposition."

Well, apart from my Indiana Law Journal article extensively discussing this precise point, one could easily cite the instance of Congress refusing to count electoral votes cast for Horace Greeley in 1873 because it believed he was not eligible to serve as president; or Congress's resolution in 2008 decreeing that John McCain was a natural born citizen, presumably because it believed it had the power to scrutinize qualifications in its power, likely under the subsequent language of the Counting Clause of the Twentieth Amendment, at the very least.

But this is essentially because the Pennsylvania state court confused the political question doctrine--that a question is exclusively reserved to another branch--with this issue. That is, it may not be a political question; but, it is certainly the case that many other political actors hold the power simultaneously. That, I think, is good reason to give pause.

It is further reason to give pause when one consider whether any cause of action exists. After all, what right is there to remove someone from the ballot? That is an operation of state law--of state ballot access law, in particular. And Pennyslvania's election code and election practice expressly display how spurious this claim against Mr. Cruz is.

Many states, understandably, do not want to engage in much scrutinize of the qualifications for these offices--let voters, electors, and Congress sort it out, rather than election officials and courts. And Pennsylvania law expressly disclaims any requirement that presidential candidates declare they are eligible.

Consider Section 2870 of the election code: candidates for office typically must file a nomination petition with an affidavit stating "that he is eligible for such office." But the end of the section provides something quite contrary for presidential candidates: "In the case of a candidate for nomination as President of the United States, it shall not be necessary for such candidate to file the affidavit required in this section to be filed by candidates, but the post-office address of such candidate shall be stated in such nomination petition." (Emphasis added.)

Pennsylvania leaves it other actors--not election officials, and, by proxy, not courts reviewing the decisions of election officials--to scrutinize qualifications.

Historical practice supports this view. In 1972, for instance, Linda Jenness and Andrew Pulley, both under 35 years of age, appeared on the Pennsylvania ballot under the Socialist Workers Party presidential ticket. Pennsylvania recorded thousands of votes cast for them. Even though both were ineligible.

These nuanced points are often lost in these eligibility cases. The salacious story of the merits--born in Canada!--or the more routine standing doctrine issues often garner the greatest attention. But this claim has no merit simply because Pennsylvania law allows anyone on the ballot, without any scrutiny of qualifications. The question of eligibility is reserved to others in Pennsylvania--not election officials, and certainly not courts.

New op-ed at Washington PostEverything: state legislatures can select presidential electors themselves to stop Trump

I have a new opinion piece at Washington PostEverything: "If no one else stops Trump, the Electoral College still can. It’s in the Constitution." It calls for states to consider selecting presidential electors for themselves this cycle, rather than leaving the selection of electors to a popular vote. It includes the following idea:

State legislatures should consider whether to retake this authority in the 2016 election in an effort to stop Trump. Republicans control 31 state legislatures. Many could consider this proposal, but the Texas state legislature is a natural place to start. It could easily pass a law returning power to the legislature. After Election Day, the legislature could decide whether to vote for Trump or Mitt Romney, the prior Republican nominee; former Texas Gov. Rick Perry, who dropped out of the 2016 race early on; a popular GOP figure like Condoleezza Rice, whose name has recently been floated as an alternative; or their own junior Sen. Ted Cruz, presently trailing Trump in the Republican Party delegate count.

Setting aside the extremely low likelihood of doing so or political outcry, I wanted to emphasize the possibility--one that had not yet been examined anywhere (as far as I saw). Indeed, it also has the virtue of being a measure that a state legislature could enact at any time before the election day--and perhaps even after.

There are three extra wonky things to consider that I couldn't fit into the piece and are better examined in detail here.

First, would the Voting Rights Act prevent states from passing such a law? It is hard to say that Section 2 would prevent states from passing such a law--that is, it's not immediately obvious that transferring the selection of electors from the people to the state legislature would necessarily "result[] in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color." There is likely much that could be written on the subject, but I simply flag the matter as a possible complicating factor.

Second, would a state legislature need to pass a law? Strictly speaking, the task is left to the "legislature" of the state to decide the "manner" of the selection of electors. The governor has no role in that selection process. So could a state pass a law (signed by the governor) that would bind future legislatures in how they select presidential electors? Or could the state legislature simply choose to ignore any gubernatorial veto and select the electors themselves? My inclination is that the legislature could do it without gubernatorial interference--despite recent Supreme Court suggestions that "legislature" might not always mean "legislature.

Third, would the state legislature have to do so before the election, or could it do so after the election and effectively nullify the results? That would be an even more radical version of my proposal. Recall that the Florida legislature was preparing to select its own electors in mid-December as Bush v. Gore was pending before the courts. But that was a case in which there was a dispute over which slate of electors should be certified, and the legislature needed to at to comply with the "safe harbor" provision of federal law concerning the selection of electors. It might be the case that a state legislature could simply select its own elect its own slate and send the competing slate to Congress for its own examination of who "won" the election. (EDIT: probably not, given that the time is fixed by federal law for selecting electors--it would have to occur in the legislature on Election Day.)

In any event, it's a controversial--but creative!--idea I've been kicking around and thought it would be interesting to float to a broader audience.

Opinion piece at The Hill on why courts should stay out of Ted Cruz eligibility disputes

I have an opinion piece at The Hill, Courts should stay out of Cruz eligibility fight. It begins:

As controversy swirls over Sen. Ted Cruz’s (R-Texas) eligibility to be president of the United States, there is one body that should not resolve that controversy: the federal courts.

Cruz was born in Canada to a Cuban father and an American mother. Recent comments from Donald Trump and others have called into question whether he is a “natural born citizen,” a constitutionally required qualification. There are good reasons to believe that he is, but it is far from a settled question.

Trump has suggested that Cruz should ask a court to declare him eligible. Others, like Sen. John McCain (R-Ariz.) and Laurence Tribe, have emphasized that the Supreme Court has yet to offer a definitive answer on the issue.

But courts don’t have to hear such challenges. In fact, it’s probably best that they don’t. There are many other bodies capable of resolving this dispute without judicial involvement.

And it ends:

If states choose to pass laws calling for election officials to closely scrutinize a presidential candidate’s eligibility, and if states invite courts to participate in that process, they are likely within their rights to do so. But most states have understandably not done so. They have recognized that the decision best remains with the voters, presidential electors, and Congress. It should stay that way.

Reuters opinion on legal challenges to Ted Cruz's eligibility

I have an opinion piece at Reuters, Natural-born mess: What would it take to kick Ted Cruz off the ballot? It begins:

Donald Trump has resuscitated questions regarding Texas Senator Ted Cruz’s eligibility to serve as president of the United States. Cruz was born in Canada to a Cuban father and an American mother. A recent Trump tweet succinctly pressed the issue: “Sadly, there is no way that Ted Cruz can continue running in the Republican primary unless he can erase doubt on eligibility. Dems will sue.”

The U.S. Constitution requires that the president be a “natural-born citizen” of the United States. Though many contend that being born to an American mother is sufficient, others say only those born on U.S. soil are eligible.

What would a legal challenge to Cruz’s eligibility look like? It’s far more complicated than you might think because it depends on how each state handles his access to the ballot. New Hampshire’s Ballot Law Commission, for example, has already said that Cruz is eligible — at least until a court says otherwise.

Guest post at the Election Law Blog on Ted Cruz eligibility challenges

Over at the Election Law Blog, I have a guest post on the recent controversy over Ted Cruz's eligibility. It begins:

Earlier this week, Donald Trump suggested that Ted Cruz’s Canadian birthplace could be a problem in the event he became the Republican presidential nominee. He followed that up with a call for Mr. Cruz to seek a declaratory judgment in court that he is a “natural born Citizen” and eligible to serve as president.