More on the Senate's Absolute Discretion to Refuse to Consider Presidential Nominees

In an excellent essay in the Atlantic, Michael D. Ramsey, the Hugh and Hazel Darling Foundation Professor of Law at the University of San Diego, demolishes claims that Article II of the Constitution somehow requires the Senate to hold hearings and a vote on President Obama's nominee to the Supreme Court, Chief Judge Merrick Garland.   As Ramsey points out, the text of Article II does not mention hearings or a vote, so any such requirement must be found "by implication."  

Ramsey makes three arguments rebutting claims that the Constitution somehow implies such a duty. 

First, several other provisions of the Constitution provide that one branch may propose actions subject to the approval of another.  For instance, the President may propose treatises subject to the Senate's consent.  None of these provisions, with one exception, has been read to require any sort of process before the second body refuses to act. The exception is the so-called "presentment clause" (Article I, Section 7), which provides that the President has only ten days to veto a bill and, if he does so, must given his reasons in writing.  As Ramsey  puts it: "The framers knew how to require formal action if they wanted to; they just chose not to require it in the appointments clause (and elsewhere)." 

Second, Article I, Section 5 of the Constitution expressly empowers the Senate to: "determine the rules of its proceedings."  While the Senate could adopt a rule requiring formal proceedings before rejecting a nominee, it has not done so.  

Third, Article II's appointments clause governs the nomination and possible appointment of all "officers of the United States," including lower court judges and countless executive branch officials. Any requirement of a hearing and a vote would therefore also apply whenever the President nominates an individual to such a position. And yet, the Senate has often declined to provide a hearing or vote to nominees for such offices.  (For instance, Jonathan Adler has explained, the Senate declined to consider over two dozen of President George W. Bush's nominees to various United States Courts of Appeals, including one John Roberts.)  Here Ramsey responds to the claim that the Supreme Court is somehow "different" because the Constitution expressly requires Congress to create this body.  As Ramsey explains, there is no constitutional requirement that the Supreme Court contain nine Justices. Instead, Congress sets the number of Justices and has, over the years, set the number at six, seven, nine or ten justices.  (This blogger notes that the Court that decided Marbury v. Madison, 5 U.S. 137 (1803) consisted of six justices, while the Court that decided Gibbons v. Ogden, 22 U.S. 1 (1824) included seven.)  Declining to consider or confirm a ninth justices does not prevent the Court from performing its constitutional role.

The Atlantic essay is a streamlined version of Ramsey's arguments on this question.  For his elaboration on these arguments on the Originalism Blog, go here, here, here and here.  Go here for this blogger's own take on this question.

William Galston on President Obama's Choice of Reform over Recovery

In a superb op-ed in the Wall Street Journal, entitled "[h]ow Obama's Economy Spawned Trump," William Galston of the Brookings Institution contends that the weak economic recovery that began in 2009 fueled the popular discontent that begat the presumptive Republican nominee. While Galston gives the President credit for securing passage of the 2009 "stimulus package" and formulating the "bailout" of General Motors and Chrysler, he also contends that the President had no follow up plan for bolstering the recovery which, as previously explained on this blog (see also here), has been exceedingly slow. Instead, Galston says, the President chose to spend his scarce political capital on securing passage of the so-called "Affordable Care Act" and regulatory efforts to combat "Global Climate Change."  Had the President remained focused on nurturing the recovery, Galston says, he could have expended his political capital on advocating and securing additional deficit spending on various infrastructure projects, such as highways, thereby further stimulating the economy and bolstering the recovery.

Galston's trenchant analysis bolsters the adage that those who ignore the lessons of history are doomed to repeat it. This is not the first time that a President facing a deep recession has chosen reform over recovery.  In 1933, Franklin Delano Roosevelt secured passage of the National Industrial Recovery Act, his administration's central economic recovery plan.   Among other things the NIRA imposed so-called "codes of fair competition," along with above-market minimum wages and requirements that firms recognize and negotiate with labor cartels also known as unions.  As John Maynard Keynes explained in a letter to the New York Times, the NIRA's wage and price fixing provisions were tools of "Reform and probably impeded recovery."  Subsequent analysis has verified Keynes' prediction, finding that the NIRA's wage-fixing provisions in particular, while furthering what Keynes called "redistribution," also helped deepen and lengthen the Great Depression by several years.  (See here and  here)  If Galston is correct, then President Obama, too, chose reform over recovery, with negative consequences for the nation's overall economic well-being.

At the same time, Galston overstates his case in a couple of ways. First, he likely overstates the impact of the initial stimulus package. For one thing, the $800 Billion package was spread over several years, thus constituting a very small share of overall GDP each year. Indeed, in 2009, Galston himself opined that some of the package's proposed projects would "take effect slowly over many years, muting their stimulative consequences." Like Martin Feldstein, Galston proposed allocating stimulus funds to immediate military spending (see also here discussing Feldstein's proposal.). Moreover, as this blog explained at the time, the net impact of the 2009 package was likely smaller than its nominal price tag, insofar as some such deficit spending simply displaced debt and resulting spending that states would have incurred anyway.  (See this testimony by John Taylor at Stanford, who summarizes research finding such a displacement effect.)  Second, as previously explained on this blog, any claim that the auto bailout was worth the cost does not survive scrutiny.  All in all, however, Galston makes a powerful point.  It would be ironic indeed if the President choice of reform over recovery leads to the election of a President hostile to those reforms.

Chicago Bears Draft DeAndre Houston-Carson!

Future Bears Co-Captain?

The Chicago Sun-Times reports that the Chicago Bears have chosen William and Mary safety DeAndre Houston-Carson in the 6th round of the NFL draft.  Carson, a co-captain, is pictured above at the coin toss before the Tribe's thrilling 52-49 victory over Duquesne in the first round of the FCS playoffs this last fall.  The William and Mary Sports Blog, which anticipated that Houston-Carson might be drafted, summarizes his extremely impressive career, which included 293 tackles, 10 interceptions, 9 punt or kick blocks and consensus first team FCS all American honors. Congratulations to Houston-Carson, and to the Bears for making such a great pick! 

Occupational Licensing, the Criminal Law and Vocational Liberty

He Told You So

A story on the Wall Street Journal's "Law Blog" highlights a study by the National Employment Law Project demonstrating one of the many perils of occupational licensing statutes, namely, that many such statutes needlessly exclude individuals with a criminal record, including some with misdemeanors, from employment in the field in question.  According to the story, about one in four Americans works in a profession that requires a state license, and nearly one third of Americans have a criminal record.  While some states (e.g. Minnesota), ignore convictions for offenses unrelated to the licensed occupation in question, others invoke unrelated convictions to bar individuals from a licensed occupation, sometimes declaring such convictions evidence of the sort of "moral turpitude" that requires such exclusion.

As a result of these restrictions, perhaps millions of Americans cannot pursue the vocation of their choice in some states, thereby undermining basic occupational liberty, preventing countless voluntary transactions, and depriving society of the productive services of talented individuals. To be sure, some of these restrictions may serve valid public purposes, as when a state bars convicted bank robbers from driving armored cars. However, many such restrictions do not, as when, for instance, a state bars an individual convicted of marijuana possession from serving as a manicurist, landscape worker, make up artist, travel guide, bar tender, taxidermist or animal trainer.  (See here for a list of 102 occupations to which some or all states limit entry.)

At the same time, this anti-liberty "synergy" between the criminal law and occupational licensing is just one negative facet of a legal regime that grants states nearly limitless authority to prevent individuals from pursue their chosen vocation.  As Milton Friedman explained more than half a century ago, many such statutes infringe the basic human freedoms to engage in voluntary wealth-creating transactions, while simultaneously protecting incumbent producers from competition, reducing output and increasing prices. See Milton Friedman, Capitalism and Freedom 137-160 (1962).  Thus, Friedman contended, society should adopt a very heavy presumption against such regulation.  See id. at 144.   These conclusions, of course, followed ineluctably from basic economic science. Even some progressives, including the Obama Administration, have finally conceded Friedman's point that occupational licensing wreaks significant harm on the economy.  Unfortunately these same progressives still maintain their ideological and anti-scientific support for other intrusive regulations of labor markets, thereby weakening the sort of intellectual milieu necessary to true reform.  (Indeed, the same National Employment Project supports the anti-liberty and anti-wealth measure known as the "minimum wage.")

The National Employment Law Project identifies a serious problem, namely, numerous unjustified abridgments of personal liberty.  These results come as no surprise to those who have long internalized Friedman's lessons. However, Friedman also provided the best solution to this problem, viz., a wholesale embrace of economic science and the resulting elimination of the vast majority of occupational licensing statutes, period.  Nibbling around the edges by altering the interaction between the criminal law and unjustified occupational licensing is at best, a half-measure. 

Occupational Licensing, the Criminal Law and Vocational Liberty

He Told You So

A story on the Wall Street Journal's "Law Blog" highlights a study by the National Employment Law Project demonstrating one of the many perils of occupational licensing statutes, namely, that many such statutes needlessly exclude individuals with a criminal record, including some with misdemeanors, from employment in the field in question.  According to the story, about one in four Americans works in a profession that requires a state license, and nearly one third of Americans have a criminal record.  While some states (e.g. Minnesota), ignore convictions for offenses unrelated to the licensed occupation in question, others invoke unrelated convictions to bar individuals from a licensed occupation, sometimes declaring such convictions evidence of the sort of "moral turpitude" that requires such exclusion.

As a result of these restrictions, perhaps millions of Americans cannot pursue the vocation of their choice in some states, thereby undermining basic occupational liberty, preventing countless voluntary transactions, and depriving society of the productive services of talented individuals. To be sure, some of these restrictions may serve valid public purposes, as when a state bars convicted bank robbers from driving armored cars. However, many such restrictions do not, as when, for instance, a state bars an individual convicted of marijuana possession from serving as a manicurist, landscape worker, make up artist, travel guide, bar tender, taxidermist or animal trainer.  (See here for a list of 102 occupations to which some or all states limit entry.)

At the same time, this anti-liberty "synergy" between the criminal law and occupational licensing is just one negative facet of a legal regime that grants states nearly limitless authority to prevent individuals from pursue their chosen vocation.  As Milton Friedman explained more than half a century ago, many such statutes infringe the basic human freedoms to engage in voluntary wealth-creating transactions, while simultaneously protecting incumbent producers from competition, reducing output and increasing prices. See Milton Friedman, Capitalism and Freedom 137-160 (1962).  Thus, Friedman contended, society should adopt a very heavy presumption against such regulation.  See id. at 144.   These conclusions, of course, followed ineluctably from basic economic science. Even some progressives, including the Obama Administration, have finally conceded Friedman's point that occupational licensing wreaks significant harm on the economy.  Unfortunately these same progressives still maintain their ideological and anti-scientific support for other intrusive regulations of labor markets, thereby weakening the sort of intellectual milieu necessary to true reform.  (Indeed, the same National Employment Project supports the anti-liberty and anti-wealth measure known as the "minimum wage.")

The National Employment Law Project identifies a serious problem, namely, numerous unjustified abridgments of personal liberty.  These results come as no surprise to those who have long internalized Friedman's lessons. However, Friedman also provided the best solution to this problem, viz., a wholesale embrace of economic science and the resulting elimination of the vast majority of occupational licensing statutes, period.  Nibbling around the edges by altering the interaction between the criminal law and unjustified occupational licensing is at best, a half-measure. 

Did the Harvard Placemats Abridge Free Speech? Why Great Universities Should Not Take Political Positions

In an interview with the Weekly Standard's William Kristol, Lawrence Summers, President Emeritus of Harvard University, decries what he calls "creeping totalitarianism" on many of America's college campuses.  (Go here for a video of the full interview.)  Examples, he said, include calls [by students at Yale] to fire faculty who question university policy as well as Harvard's "us[e] of placemats in the dining hall to propagandize about what messages students should give their parents about Syrian refugee policy[.]"  Explaining why he believes these actions were problematic, Summers invokes basic free speech principles, namely, that the "answer to bad speech is different speech [and] not shutting down speech."

Summers is certainly correct to decry both the particular events described above as well as the anti-academic trend that these events exemplify.  At the same time, this blogger respectfully suggests that Summers has identified two analytically distinct issues.  To be sure, firing someone for expressing disagreement with University policy abridges the sort of free expression that public universities are obliged to protect and that many private universities (including Yale) promise to protect.  Those who call for such termination instead of engaging in counter-speech thereby ignore the basic premises of a free society that inform the protection that a university accords free expression.

Ironically, even the Harvard administrators responsible for conceiving and distributing the place mats in question conceded, in a letter of apology, that distribution of place mats contravened "academic freedom."  However, distributing placemats containing political messages does not in the view of this blogger abridge free expression or contradict academic freedom.  On the contrary, the propagation of centrally-approved political messages left members of the Harvard community (and everyone else) perfectly free to express their disagreement with the messages in question or, for that matter, with the decision to create and distribute such mats in the first place.  Many, including Harvard's Undergraduate Council and College Republicans, did exactly that (see here and here), without suffering any penalty, whether formal or informal.  As Justice Brandeis explained, those who wrote and ratified the First Amendment believed that "liberty was the secret of happiness and courage the secret of liberty" and that "an inert people" was the "greatest menance to freedom."  Freedom implies the courage to exercise it, even in the face of dominant opinion.

None of this is to say that the distribution of such placemats was appropriate.  Such distribution offended a different but related principle, namely, that universities should not take political or ideological positions, even if taking such positions leaves members of the community entirely free to disagree.  Nearly five decades ago, a University of Chicago Committee chaired by Harry Kalven explained why great universities should remain politically and ideologically neutral:

"To perform its mission in the society, the University must sustain an extraordinary environment of freedom inquiry and maintain an independence from political fashions, passions and pressures.  A university, if it is to be true to its faith in intellectual inquiry, must embrace, be hospitable to, and encourage the widest diversity of views within its own community.  It is a community, but only for the limited, albeit great, purposes of teaching and research.  It is not a club, it is not a trade association, it is not a lobby. . . . . A great university should not, therefore, permit itself to be diverted from its mission into playing the role of a second-rate political force or influence."

By taking political or ideological positions, then, a university short-circuits the process of inquiry, discussion and engagement that furthers the pursuit of truth and its dissemination in the classroom.   One might also add that, by rejecting neutrality and wading into social or political disputes, a university discourages individuals who might disagree with these positions from joining the university community in the first place, thereby reducing the extent of ideological and political diversity at such institutions.   Moreover, a university that takes such positions implies that there is an academic answer to vexing political or social controversies.  While the results of academic inquiry can of course inform public debate, such results can rarely settle such debate.  A university that suggests otherwise misleads the public (perhaps inadvertently) and, by trafficking in political or ideological disputes, undermines the perceived credibility and academic integrity of its own scholars, by signaling that politics, not free inquiry, drives their research.   This can be so even if, as often happens, administrators, and not scholars, determine a university's official position on (non-academic) matters of the day.  As the Kalvin Report properly explained, a "great university's . . . prestige and influence are based on integrity and intellectual competence" and not upon things like "political contacts or influential friends."  While taking political positions may further the short term interest of a university or those who lead it, taking such positions will, over the longer run, compromise the institution's reputation for integrity and intellectual competence, thereby (properly) weakening its influence and prestige.

We Need More Reagan, Not Less

Had A "Reaganite" Plan

Executed the Plan

In a recent op-ed, David Brooks claims that what he calls the "post-Trump" Republican party will have to reject Reaganism in favor of a new organizing philosophy. While Brooks admits that the "Reagan orthodoxy" was "right for the 1980s," he also claims that this template is "increasingly obsolete."  In particular, Brooks claims that: "[t]he Reagan worldview was based on the idea that a rising economic tide would lift all boats.  But that's clearly no longer true." Analogizing to Thomas Kuhn's work on scientific revolutions, Brooks observes that today's Republicans "are still imprisoned in the Reaganite model . . . ask Reaganite questions [and] propose Reaganite policies." Because the Reaganite model no longer works, Brooks says, conservatism is in a crisis state and must develop a new model.   Among other things he suggests that conservatives turn away from economic theory and embrace Sociology because, in his words: "Homo economicus is a myth and conservatism needs a worldview that is accurate about human nature."

Brooks' assessment of modern Republican ideology rests upon a crucial assumption, namely, that a robustly rising economic tide does not lift all boats.  However, he offers no evidence to support this assumption.  To be sure, the current economic recovery has left out millions of Americans.  Some cannot find jobs and others must work two or more part-time jobs to make ends meet.  Total employment rose a mere 10 percent from 2009 through 2014. Median household income, is still below what it was in 2008, and poverty rates are still higher. In 2015, the United States experienced its 10th straight year of economic growth below 3 percent, apparently a record, though not the sort of record that any country brags about.  (GDP growth in 2015 was 2.4 percent.)

Still, these data shed no light whatsoever on the "Reagan worldview," or the usefulness of "Reaganite policies" derived from economic theories assuming that human beings are rational actors that respond to incentives.  In March, 1983 President Reagan, who had majored in Economics, predicted that his policies across-the-board tax cuts (inspired by John F. Kennedy), reduced regulation and free trade would produce an economic recovery that would be "powerful and sustained."  (The second photo above depicts President Reagan signing the Economic Recovery Tax Act of 1981.)  He was correct. Between 1983 and 1988 (inclusive), the economy grew at an annual average rate of 4.6 percent, more than twice the rate of growth during this most recent recovery. During the same period median real household income rose 10.9 percent and rose another 1.8 percent in 1989. The economy added 17,913,000 jobs, increasing total employment by 20.1 percent, twice the rate of the current recovery.  Exports skyrocketed as more productive U.S. industries won new markets abroad.  Tax relief allowed Americans in all economic classes to keep more of their income. Rules indexing the standard deduction and tax brackets for inflation preserved the value of the deduction and protected low and middle income taxpayers from the sort of "bracket creep" that had pushed Americans of modest means into higher tax brackets in the late 1970s.  A significant portion of the tax burden shifted from the middle class to those in the "top one percent" of the income distribution.

None of this is to say that the Reagan recovery improved the lives of each and every American.  Still, the difference between that recovery and the most recent one is stark indeed. It is little wonder that, less than two years into the Reagan recovery, the American people resoundingly reelected President Reagan in a landslide, i.e., 49 of 50 states and nearly 59 percent of the popular vote.  In so doing the voters rejected former Vice President Mondale's platform of higher taxes, Trump-like economic protectionism and more intrusive federal regulation.  The economy continued to grow into 1990, thus constituting the longest peacetime expansion in U.S. History.

This blogger believes that most Americans would be thrilled by an economic recovery similar to that which occurred between 1983-1990.  Any decision to reject the "worldview" that helped produce that recovery should be based on sound argument and hard evidence, not cavalier speculation.  We need more Reagan.  Not less.

On the Senate's Absolute Discretion to Refuse to Consider Nominees

Still Waiting For A Hearing . . .

Denied 32 Nominees a Hearing 

In an op-ed in yesterday's New York Times, Vice President Joe Biden contends that Article II, Section 2 of the Constitution imposes a "constitutional obligation" on the Senate to provide "advice and consent" with respect to any nominee to the Supreme Court that the President submits. This requirement, according to the Vice President, includes meaningful "consideration" of such a nominee as exemplified by "meetings," "hearings," and/or "votes."  This requirement to consider such a nominee, the Vice President says, "is written plainly in the Constitution that both Presidents and Senators swear an oath to uphold and defend."   The Vice President also claims that failure to consider such a nominee is an "unprecedented act of obstruction."  

1. The Vice President is wrong on both counts. Neither the Constitution's text nor historical precedent requires the Senate to provide such "consideration" to a nominee.   Indeed, the Vice President himself, while chairing the Senate Judiciary Committee, repeatedly declined to consider Presidential nominations that were governed by the very same constitutional text that he now claims "plainly" required such consideration.  The power to provide "advice and consent" is a discretionary, political power, which the Senate may exercise or not in whatever manner it deems appropriate.

2.  Article II, Section 2 of the Constitution provides as follows:

The President "shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States." 

The text plainly empowers the President to nominate, at his discretion, possible Supreme Court justices, ambassadors, public ministers and consuls, and other "officers of the United States." The text also requires, in a straightforward and unambiguous way, Senate "advice and consent" (sometimes called "confirmation"), before the President may appoint such a nominee to the office in question.   The clause does not, however, mention or impose any duty to consent to such nominations or, for that matter, to consider the nomination in any particular way. The Vice President's assertion to the contrary is just that, an assertion, which attempts to transform a requirement of Senate consent before appointment into a constitutional mandate of an (unspecified) amount and type of "consideration" before granting or withholding such consent.  Far from "plainly" requiring such process, the language of Article II, Section 2 simply does not bear this construction, which would assign the phrase "with the advice and consent" two entirely different functions.  As Ed Whelan explains over at Bench Memos. "the Constitution says nothing about how the Senate should go about exercising its power to advise and consent-or-withhold consent, and it thus leaves the Senate entirely free to exercise that power as it sees fit."   In the same way, it should be added, the Constitution leaves the President entirely free to determine how to go about deciding whom to nominate in the first place.  See Public Citizen v. Department of Justice, 491 U.S. 440, 467-89 (1990) (Kennedy, J. concurring) (explaining that Congress cannot regulate the process employed by the President to determine whom to nominate to federal office).

3.  Of course, historical practice can in some instances give meaning to ambiguous constitutional provisions.  However, even if the language of Article II, Section 2 were ambiguous, and it is not, historical practice contradicts the Vice President's reading of this provision as well as his claim that refusal to consider a nominee during the next several months would constitute "an unprecedented act of obstruction."  For instance, according to this 2009 report by the Congressional Research Service, Henry Stanberry (pictured above), whom President Andrew Johnson nominated to the Supreme Court in 1866, received no hearing, no committee vote, and no Senate vote. George E. Badger, nominated by President Fillmore in 1853, also received no hearing or Committee vote. Worse yet, the Senate never even referred his nomination to the Judiciary Committee but instead simply voted to "postpone" consideration of his nomination, to which it did not return.  In the same way, the Senate also refused to refer the 1861 nomination of Jerimiah Black to the Judiciary Committee, and the Senate declined to proceed to a vote on his nomination.  Even these examples of purported "obstruction" seem relatively minor compared to the experience of President Tyler, whose nominations for a single seat on the Supreme Court repeatedly failed to obtain Senate approval, resulting in a vacancy of 841 days.  

4.  Those who prefer more modern examples need look no further than the current Chief Justice of the United States, John Roberts, Jr. President George H.W. Bush nominated Mr. Roberts to an open seat on the U.S. Court of Appeals for the District of Columbia Circuit in January, 1992.  Judges of that court, are, like all federal judges, "officers of the United States."  Such nominations are therefore subject to the same Article II, Section 2 that governs Supreme Court nominations.  If this constitutional text "plainly" obliges the Senate to "consider" Supreme Court nominations, then it must also require the same consideration for other nominees.  However, the Senate Judiciary Committee, chaired by then-Senator Biden, refused to consider the nomination of Mr. Roberts.  This was not the only such example.  As Jonathan Adler reports, the Judiciary Committee also refused to consider the nomination of Lillian BeVier to a seat on the U.S. Court of Appeals for the Fourth Circuit, for which President Bush nominated her in October, 1991.  Again, there was no hearing, no committee vote, and no Senate vote.  Indeed, after reviewing a different report of the Congressional Research Service, Marc Thiessen concludes that Senator Biden's Judiciary Committee "killed 32 Bush [nominees] to the federal bench without giving them so much as a hearing." If Vice President Biden's current interpretation of Article II, Section 2 is correct, then he violated his oath of office 32 times during that period.  There is, of course, an alternative and more persuasive account of the Committee's actions, and one that does not impute any such violation to then-Senator Biden, namely, that the Senate was exercising its constitutional authority to decline to consider such nominations.

5.  In Marbury v. Madison, 5 U.S. 137 (1803), Chief Justice John Marshall explained that the Constitution vests the President "with certain important political powers, in the exercise of which he is to use his own discretion, and is accountable only to his country in his political character and to his own conscience." Marshall continued that "the subjects [of such powers] are political.  They respect the nation, not individual rights, and, being entrusted to the Executive, the decision of the Executive is conclusive." According to Marshall, the power to nominate officers of the United States was just such a power "to be exercised by the President, according to his own discretion."  The Senate's power to advise and consent is also such a power, committed to the discretion of the Senate and subject only to the constraints of politics and conscience.  To be sure, discretion vested in the Executive, Legislative or Judicial branch can be subject to abuse.  However, as Joseph Story explained nearly two centuries ago:

"It is always a doubtful course to argue against the use or existence of a power from the possibility of its abuse.  It is still more difficult by such an argument to ingraft upon a general power a restriction which is not to be found in the terms in which it is given."

See Martin v. Hunter's Lessee, 14 U.S. 304, 344-45 (1816).  Story was of course speaking of the meaning of Article III, and the possibility that the Supreme Court might abuse its authority to review a state court's construction of federal law.  However, his argument is perhaps even stronger in the context of Article II, where both the President and the Senate are, unlike the Courts, subject to political constraints. In a constitutional republic, the remedy for abuse of the power to nominate and/or to advise and consent resides at the ballot box, and not the imposition of an ad hoc extra-constitutional "restriction which is not to be found in the terms in which [the power] is given." 

On the Miniscule Chance That a Run By Michael Bloomberg Will Precipitate a Constitutional Crisis

Billionaire and former New York City Mayor Michael Bloomberg is reportedly considering running for President as an independent.  In a recent Op-ed, Bruce Ackerman argues that such a third party run could "plunge the country into a constitutional crisis."  Ackerman envisions a scenario in which Bloomberg wins enough states that no candidate earns a majority of the nation's 538 electoral votes. Absent such a majority, Ackerman explains, the 12th Amendment requires the newly-elected House of Representatives to select the President, from among those three candidates that earned the most electoral votes.  The Amendment also provides that the delegation of each state casts a single vote, and requires a majority vote of 26 states to elect a President.  If no candidate receives such a majority, then the individual recently elected Vice President assumes the Presidency as acting President, unless that individual received less than a majority of the electoral votes cast, in which case the Senate elects the Vice President/Acting President.  Ackerman opines that such a process with degenerate into a "free-for-all," characterized by "desperate efforts," "melodrama" and political maneuverings pursuant to a process that the People find "utterly mysterious," leading them to "turn away in despair."  The original 12th Amendment, Ackerman says, "can't cope with the realities of modern politics."  If Mr. Bloomberg is a true patriot, Ackerman says, he will not allow "personal ambition" to "throw the United States into a grave constitutional crisis."

The scenario that Ackerman imagines, while theoretically possible, is highly unlikely.  For one thing, a single significant third party candidacy has never prevented a major party candidate from obtaining a majority of electors. Indeed, the 12th Amendment has come into play exactly once, in 1824, when four significant candidates (Andrew Jackson, John Quincy Adams, William Crawford and Henry Clay) received 99, 84, 41 and 37 electoral votes respectively. If history is any guide, a third party run by Mr. Bloomberg will no more result in invocation of the 12th Amendment than did such runs by Theodore Roosevelt, George Wallace, or Robert M. Lafollette, all of whom won electoral votes.

More fundamentally, Ackerman's analysis does not come to grips with one of the "realities of modern politics," namely, the Republican Party's dominance of the House of Representatives.  The GOP currently maintains a 247-188 margin in the House, with many Democratic seats concentrated in large single states such as California, New York and Illinois.  More importantly, Republicans currently hold majorities among the House delegations of 33 states. Three other delegations are evenly split and thus could conceivably swing Republican in 2016 or, if they remain split, vote for the Republican candidate upon invocation of the 12th Amendment. It seems fanciful to assume that eight or more such states will choose Bloomberg over a Republican nominee for President. To be sure, the 12th Amendment provides that newly-elected House members would elect a President if the provision is invoked. However, given that only a handful of House races are competitive, the chance that Republicans will emerge from the 2016 elections with majorities of less than 26 House delegations seems highly remote.  Thus, far from assuring a constitutional crisis, a run by Mr. Bloomberg could increase the chance of a Republican President come 2017.  Mr. Bloomberg can run for President with his patriotism intact.

 

Yale Really Does Protect Free Expression (For Now)

A recent essay in the Economist magazine addresses efforts to curb free speech on college campuses around the country.  According to the piece, students at 72 colleges have demanded that universities curtail free expression in one way or another.  The essay also notes that the University of Chicago has rejected such efforts and reaffirmed its commitment to "free, robust, and uninhibited debate and deliberation among all members of the University’s community."

Fortunately Chicago is not standing alone.  As the Economist reports, the Chicago statement has inspired similar or identical statements by a growing number of institutions, including Princeton, the University of Wisconsin, Purdue University, American University, Chapman University, Winston-Salem State and Johns Hopkins. (Click on each respective institution in the previous sentence for a link to the relevant policy statement.)  Like Chicago, some of these institutions are private and thus not subject to the First Amendment.  Nonetheless, each believes that protection for Freedom of Expression is essential if a University is to play its fundamental role of facilitating the search for truth.

The Economist also notes that support for the Chicago position is "not universal."    In particular, the Economist cites Yale University as an example of a university that has purportedly declined to embrace the Chicago approach.  The essay concedes that a 1974 report of a Yale committee --- the famous Woodward Report --- extols the "right to think the unthinkable" and "discuss the unmentionable."  Still the essay notes that one member of the Committee that prepared the report dissented and that a minority of those surveyed at the time expressed skepticism about whether certain forms of free expression should be tolerated.  The essay also claims that the report, "when read in full . . . is confused."

Closer inspection, however, reveals that the Economist's characterization of Yale's official position on Freedom of Expression is unwarranted.  Instead, Yale's policies, contained in the Woodward Report, are for all intents and purposes identical to those contained in the Chicago statement.  For instance, the Woodward Report, which begins with a quote from Milton's Areopagitica, provides that:

“The history of intellectual growth and discovery clearly demonstrates the need for unfettered freedom, the right to think the unthinkable, discuss the unmentionable, and challenge the unchallengeable.” (emphases added here and below)

The Report also recognizes that Freedom of Expression supersedes other important values, including harmony, civility and mutual respect.  Thus the Report provides as follows:

“Without sacrificing its central purpose, [the University] cannot make its primary and dominant value the fostering of friendship, solidarity, harmony, civility, or mutual respect.  To be sure, these are important values; other institutions may properly assign them the highest, and not merely a subordinate priority; and a good university will seek and may in some significant measure attain these ends.  But it will never let these values, important as they are, override its central purpose.  We value freedom of expression precisely because it provides a forum for the new, the provocative, the disturbing, and the unorthodox.” 

The report also makes it clear that each individual who voluntarily enters the Yale community thereby takes on the obligation of protecting Freedom of Expression, “above all.”

"By voluntarily taking up membership in a university and thereby asserting a claim to its rights and privileges, members also acknowledge the existence of certain obligations upon themselves and their fellows.  Above all, every member of the university has an obligation to permit free expression in the university.  No member has a right to prevent such expression.”

The Report recognizes that there are "slurs or epithets" that "no member of the community with a decent respect for others should use" and that individual members of the community have "ethical responsibilities" to refrain from certain forms of expression.  This language, while certainly correct, may well be the source of the "confusion" the Economist alleges.  However, this language does not ambiguate or detract from the Report's endorsement of unfettered free expression.  Instead, after noting these "ethical obligations," the Report expressly "reject[s]" the "argument that behavior which violates these social and ethical considerations should be made subject to formal sanctions" as well as "the argument that such behavior entitles others to prevent speech they might regard as offensive." Allowing such institutional or private censorship, the Report says, would contradict the "conviction that the central purpose of the university is to foster the free access of knowledge."  As a result, the report concludes "even when some members of the university community fail to meet their social and ethical responsibilities, the paramount obligation of the university is to protect their right to free expression. This obligation can and should be enforced by appropriate formal sanctions."  Such "secondary social and ethical responsibilities," the Report concludes, "must be left to the informal processes of suasion, example and argument."  

In sum, the Woodward Report, issued more than four decades ago, is a classic articulation of the virtues of Free Expression in the University context and an unqualified rejection of calls to censor speech, even speech that is offensive.  Like Justice Louis Brandeis, the Report recognizes that the expression of noxious ideas that all good people will reject out of hand is a possible but unfortunate byproduct of robust protection for free expression.  Presumably the authors of the Report also believed that members of the community have an ethical obligation to denounce and condemn such speech. 

To be sure, support for Free Expression was not unanimous at the time within the Yale Community. One member of the twelve person committee that drafted the Woodward Report dissented, and numerous members of  Yale community apparently disagreed with portions of the Report.  But then the main student newspaper at the University of Chicago objected to the Chicago statement. Such dissent, itself an example of Free Expression, does not undermine the clarity of Yale's or Chicago's commitment.  Perhaps more to the point, Yale has codified the Woodward Report in its "Undergraduate Regulations." (See here, pp. 47-49).  The same regulations prohibit faculty, staff or students from interfering with the "orderly conduct" of a lecture, meeting, or "other public event."  (See id. at 49).

It thus appears that the Economist has inadvertently misinterpreted Yale's policies on Free Expression.  Instead of diverging from Chicago's recent statement, the Woodward Report presaged it. Indeed, Yale is not alone in anticipating Chicago's statement.  A little more investigation reveals that, while not "universal," support for Freedom of Expression within American Higher Education is perhaps broader than many suppose.  Here in Virginia, for instance, three universities  --- George Mason, William and Mary, and the University of Virginia --- have received the very highest rating for protection for Free Expression from the Foundation for Individual Rights in Education, a non-profit organization that “defends and sustain individual rights at America’s colleges and universities”  Many other major universities have also received FIRE's very highest rating, including UNC Chapel-Hill, Arizona State University, Carnegie Mellon, the University of Florida, the University of Pennsylvania and the University of Utah,  (See here for a full list of schools that have received FIRE's highest rating.)  

Of course, formal policies do not always suffice to protect Freedom of Expression or other liberties. Even the 1977 Soviet Constitution --- 177 articles long --- included protections for "freedom of speech, of the press, and of assembly" (Article 50) as well as "freedom of conscience" and the right "to profess or not profess any religion, and to conduct religious worship or atheistic propaganda."   (Article 52)  As Judge Learned Hand famously explained, in a 1944 speech to over a million citizens: "Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it; no constitution, no law, no court can even do much to help it."  In the same way, no university policy, no matter how eloquent or widely embraced when adopted, can ensure continued robust protection for Free Expression, unless there is sufficient support for this value within the relevant community.  Those who hope to preserve Free Expression in America's colleges and universities must do more than invoke standing policies authored generations ago.  They must, in addition, continually affirm and defend the paramount value of freedom of expression.  In this spirit, universities may wish to sponsor programs or workshops for incoming students explaining the origin and rationale for robust protection of freedom of speech on campus as well as any alternative perspectives on the matter.  

Justice Scalia, Rest in Peace

Justice Antonin Scalia died unexpectedly over the weekend. Individuals who often disagree about fundamental legal and political questions have offered effusive praise for the Justice, filled with superlatives such as "giant of jurisprudence," "great man," "legal giant," "one of the greats," "great," "legal giant." (again), "legal titan," and "deeply principled."  

Those who are familiar with Justice Scalia's life and work are not surprised by these encomiums. The Justice was deeply and fiercely committed to the Rule of Law.  He knew that departure from the original meaning of the Constitution or ordinary legislation gave judges and others a license to exercise arbitrary and illegitimate authority over their fellow citizens. Through sheer force of intellect, profound learning, wit and powerful expression, he changed the way that lawyers and judges interpret and thus apply legal texts in our constitutional republic.  As a Judge and then a Justice he worked tirelessly to discern and apply the meaning of statutes and constitutional provisions that governed the cases before him, rendering great service to our constitutional republic in the process. He did all of this with an abiding faith in the American People and their ability to govern themselves through law, both ordinary and constitutional, that compels officials, including judges, to heed the People’s will.  His work and personal example inspired countless individuals to defend the Constitution and the Rule of Law.  His death leaves an enormous void in our Republic and in the lives of so many individuals who loved and admired him.  

Tribe Chalks Up 17th Win in Williamsburg

 

Comfortable Margin

 

Powerful Three Point Duo

William and Mary continued its march to a third straight 20 win season today, handily defeating the University of Delaware 90-64 before 6,028 fans --- the most this year --- in Williamsburg.  The Tribe sank thirteen three point shots, including two each by Terry Tarpey (pictured above on the left) and Omar Prewitt (pictured above on the right).  Prewitt scored 21 points, leading a balanced scoring attack that left five Tribe players in double figures.  Tarpey also snagged 11 rebounds, and Sean Sheldon added 8.  (Go here for the game's box score.)

The Tribe now sits in sole possession of second place in the CAA, with a 17-6 record (9-3 in conference play), just one game behind the UNCW Seahawks.  Even before today's win, William and Mary stood 34th in the RPI power rankings, ahead of Arizona, Michigan and Indiana, for instance.   With six games left in the regular season, three potential games in the CAA tournament, and a possible bid to the NCAA tournament beyond that, the Tribe seems poised to match or exceed the 24 wins it earned in the 1948-49 season, when the team finished second in the Southern Conference, behind North Carolina State..  (That season's schedule included games against the Norfolk Naval Air Station, Quantico Marines, Langley Field, and the Little Creek Amphibious Base.)

The Tribe takes on Hofstra at William and Mary Hall this Thursday, February 11 at 7:00 PM.   Go Tribe!

 

William and Mary BOV Announces Charter Day Extension of President Reveley's Appointment

Reason to Celebrate!

Today William and Mary celebrates the 323rd anniversary of its Royal Charter, issued by King William and Queen Mary in 1693. The charter provides that the College shall consist of "one President, six Masters or Professors, and an hundred scholars [students] more or less."  The Charter named James Blair, selected by the General Assembly of Virginia, as the College's first President, "during his natural life." Bishop James Madison, for whom this blog is named, served as President of the College from 1776-1812.  

Blair and Madison are tough acts to follow, but W. Taylor Reveley III has proved himself a worthy successor to these leaders. Earlier today Todd Stottlemyer, '85 and Rector of the College and William and Mary, announced that the College's Board of Visitors has unanimously extended the appointment of Taylor Reveley as President of William and Mary until June, 2018.  Here is the complete announcement.

Rector Stottlemyer's announcement rightly notes that President Reveley's leadership "has been crucial to the University's sustained excellence."    He took the helm in early 2008 and has presided during a time of great financial challenge to higher education in general and William and Mary in particular. Along with Rector Stottlemeyer, former Rector Trammel, and others, President Reveley helped conceive, develop and execute a new financial model for the College, in the form of the William and Mary Promise.  Recently extended by the Board of Visitors, the Promise helped ensure that entering students would experience predictable tuition bills while simultaneously enhancing affordability for low and middle income families and generating stable revenue necessary for important investments in academic excellence.  As a result, the College continues to provide an excellent and accessible education.   At the same time, President Reveley and others conceived and launched the College's most ambitious fundraising campaign, For The Bold, with a goal of raising $1 billion, about a third of which will be devoted to scholarships.  He also established a strategic planning process, under the auspices of the University's Planning Steering Committee, to ensure a more transparent assessment of the College's objectives and a more rational allocation of resources between such objectives.  In short, the College is fortunate that he has agreed to extend his service as President.

This blogger would be remiss if he did not mention one more notable achievement, namely, the designation of the College's current mascot.  After a grueling process that produced five finalists, President Reveley chose the Griffin, as recounted in this video.  No wonder the mythical creature is clapping! 

Should Candidates (and Voters) Be More Optimistic?

Justified Optimism

Maybe Not

In a recent Washington Post opinion piece, Jonathan Capehart praises President Obama's optimism about America's future, optimism the President recently expressed in his final state of the union address. Capehart also analogizes President Obama's optimism to that expressed by President Ronald Reagan in the latter's 1989 farewell address.  In that address, President Reagan referred to America as a "shining city on a hill" that was, at the end of his administration, "more free, more prosperous, more secure and happier than it was eight years ago." Capehart also chastises the current field of Republican presidential candidates for rejecting such optimism. According to Capehart, these candidates repeatedly invoke Reagan, but "bombard us with gloom, doom and defeatism."

Capehart is certainly correct that both President Obama and President Reagan struck optimistic tones as their administrations came to a close.  He is also correct that many Republican candidates for President seem anything but optimistic about the nation's current trajectory.  At the same time, Capehart does not mention the fact that most Americas do not seem to share President Obama's optimism. For instance, two thirds of Americans believe the nation is "on the wrong track," compared to 55 percent early in President Obama's first term.  (Go here for these data.)  Only one third of Americans believe that today's children will be better off than their parents.  (See here.)  The rate of new business formation is near a 30 year low. Capehart does not consider the possibility that glum Republican presidential candidates are simply reflecting the mood of the people --- Republicans, Democrats and Independents --- they hope will elect them.

Of course it may be that the American people are simply unduly pessimistic about what the future holds for this country. However, a little reflection, informed by recent economic history, suggests that there is significantly less reason for optimism about the nation's economic future than there was when Reagan delivered his farewell address in 1989.  While President Reagan left his successor a booming economy resulting in robust job creation, President Obama's successor will inherit a tepid economic recovery which has left millions of Americans behind and with little or no prospect of improvement.

Like President Obama, President Reagan inherited a deteriorating economy.  When Reagan took office in January, 1981, the prime interest rate had just hit 21.5 percent, inflation was running over 13 percent, and unemployment was 7.5 percent, on its way to 10.8 percent in December, 1982.

Like President Obama, who proposed an economic stimulus package that Congress would later pass, President Reagan proposed a package of tax cuts also designed to stimulate the economy, and Congressman Jack Kemp led the Congressional efforts to enact Reagan's proposals.  (To his credit, President Obama would later award Kemp the Medal of Freedom.)   The plan, which cut tax rates for all Americans, was similar in design and rationale to that offered by President John F. Kennedy in 1962.  As previously explained on this blog, President Kennedy sold his plan as an effort to stimulate economic growth, reduce unemployment, and, ultimately, eliminate the short run budget deficit that such cuts would produce.   As President Kennedy explained in a December, 1982 speech to the Economic Club of New York:

"The purpose of cutting taxes is not to incur a budget deficit, but to achieve the more prosperous, expanding economy which can bring about a budget surplus."

Congress enacted President Reagan's proposed tax cuts in the summer of 1981.  While a portion of the cuts took effect immediately, most were phased in over the next three years.  His administration also accelerated the pace of deregulation. What followed was a veritable economic boom.  While the economy contracted in 1982, a recovery started in November of that year.  Over the six year period 1983 through 1988, the American economy grew at an annual rate of 4.6 percent on average.  (See here)  During the same period, total employment increased from 88,993,000 in January, 1983 to 106,906,000 on December 1, 1988, a 20.1 percent net increase. (See here).

The economy has not experienced a similar boom under President Obama, despite passage of his stimulus package.  The economy contracted during 2009 and began a recovery in the summer of 2009. Over the six year period of 2010 through 2014, GDP grew an average of 2.2 percent, less than half the rate during the Reagan boom, with annual growth never exceeding 2.4 percent.   During the same period, total employment grew from 129,717,000 in January, 2010 to 143,242,000 in December, 2014, a 10.3 percent net increase.  (See the sources cited in the prior paragraph for these data.)

In short, the rate of economic growth during the Reagan recovery was more than double the rate for Obama recovery.  Moreover, the rate of employment growth during the six years of the Reagan recovery was more than 60 percent higher than the rate during the first six years of the Obama recovery.  Nor is there any indication that the Obama recovery is picking up steam, with 2015 growth predicted to be a disappointing 2.5 percent.  (By contrast the economy grew 3.7 percent in 1989.)  It is little wonder that many Americans are pessimistic about the nation's economic future.  Even former President Bill Clinton recently expressed his view that, if elected, former Secretary of State Hillary Rodham Clinton would "do what needs to be done now to restore prosperity."  Like former President Clinton, many Americans are old enough to recognize robust economic growth when they see it, and they know this is not it.

Of course, GDP and employment growth are not the only indicators of national well-being.  A nation might choose policies that alleviate poverty or result in a more equitable distribution of income, even if such polices cause somewhat smaller economic growth.  However, there is no indication that slower growth has bought us greater equality or lower poverty.  Poverty rates are higher than when President Obama took office and lower than 1989, when President Reagan left office.  (See page 12 of this report.)  Income inequality is by many accounts on the rise.  The Reagan boom brought greater wealth and less poverty; the Obama recovery has been disappointing by comparison.

None of this is to condone the sort of pessimism that Capehart claims to see in today's crop of Republican candidates.  In 1980 then-citizen Reagan believed the country was moving in the wrong direction but was nonetheless optimistic about America's future.  In particular, he had faith in the power of free markets and individual initiative and a plan for unleashing both to serve the common good.  With the help of Congress, his administration implemented that plan, and the rest is (economic) history.  Hopefully one of the current presidential candidates will follow Reagan's example and articulate an optimistic vision for the nation's future coupled with a workable plan for making that vision a reality.