John O. McGinnis

John O. McGinnis is the George C. Dix Professor in Constitutional Law at Northwestern University. His book Accelerating Democracy was published by Princeton University Press in 2012. McGinnis is also the coauthor with Mike Rappaport of Originalism and the Good Constitution published by Harvard University Press in 2013 . He is a graduate of Harvard College, Balliol College, Oxford, and Harvard Law School. He has published in leading law reviews, including the Harvard, Chicago, and Stanford Law Reviews and the Yale Law Journal, and in journals of opinion, including National Affairs and National Review.

Independent Agencies Must Follow the President’s Interpretations of Law

cordray

President Trump must soon decide whether to say “You’re fired” to Richard Cordray, the Director of the Consumer Financial Protection Bureau (CFPB). Cordray’s policies are clearly at odds with the deregulatory impulse of the administration, whose fate depends  on whether it can substantially increase prosperity beyond the sluggish growth of the Obama years.

The obstacle to getting rid of Cordray is that the statue setting up the CFPB permits the President to fire Cordray only on the basis of “inefficiency, neglect of duty, or malfeasance in office.” One possibility would be to fire him anyway on the theory that the restriction is unconstitutional.   Indeed, in PHH Corp. v. CFPB, a panel of the District of Columbia Circuit held that it was unconstitutional to limit the President’s removal power over the director. It acknowledged that the Supreme Court has upheld insulating other executive agencies, like the FTC, from presidential removal.   But those independent agencies were directed by multi-member commissions composed of members from different parties. The panel concluded that CFPB lacks the important check of collegial, bipartisan control, concentrating power in a single official.  Thus, the Constitution required that the President have the power to remove him at will.

The difficulty with acting on the panel’s analysis is that the full District of Columbia Circuit has vacated the PHH ruling to hear the case en banc.  It is true that the President could still follow the reasoning of the panel ruling and dismiss Cordray. But that action would be portrayed by the press as flouting a judicial order, even though the President is not a party to PHH v. CFPB.   Moreover the President’s substantial latitude to decline to follow statutes that violate his constitutional authority is premised in part on the need to obtain judicial resolution. But here the issue would already be before a court.

The President has a better option, because he has the constitutional duty to “take Care that the Laws be faithfully executed. “

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Once and Future Originalism

A sign of originalism’s strength is the annual conference on the subject now held at San Diego Law School under the direction of Mike Rappaport.  It attracts prominent originalists and, as importantly, ever more critics of originalism who now take this enterprise seriously.  One of those critics, Richard Primus, has blogged about the conference in a friendly manner.  Nevertheless, he is not correct in his thesis that many, if not most, originalist theorists  believe that originalism has never been tried before.  I have never heard such a bald assertion from my colleagues.

And that proposition would be obviously wrong about the course of constitutional law. James Madison, widely regarded as the father of the Constitution, supported what is now called originalism:

I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified in the nation. In that sense alone, it is the legitimate Constitution. And if that not be the guide in expounding it, there can be no security for a consistent and stable exercise of its power.

A historian of constitutional law who is not himself originalist concurs that until the Progressive Era, nearly everyone appealed to originalist reasoning even if they at times disagreed to its outcome.

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The President’s Conduct Is No License for Others’ Unlawfulness

On this President’s Day there is a lot to criticize about the behavior of our current President.  Although other Presidents have certainly not conducted themselves with dignity (think Bill Clinton), President Trump’s demeanor and decorum during his news conference was more a throwback to his days as a reality TV star than a performance befitting a head of state.  Presidential dignity promotes the stability of our union.

And while other Presidents have told more consequential falsehoods (think “If you like your plan you can keep it”), few have made statements that are so transparently false at the time they are made, such as the President’s claim about the relative strength of his electoral college victory. Presidents must rely on their credibility to take unpopular and contestable actions in times of crisis and President Trump is in danger of squandering his.

Some of the President’s executive orders, like that on immigration, have been issued without sufficient deliberation and his remarks in their defense have been intemperate insults rather than measured criticisms of the substance of their rulings.

But the behavior of the President is no license for lawlessness and the violation of long standing political norms. Yet that is what some of his opponents have claimed with the support from intellectuals.

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Democrats Need a New Supreme Court Nomination Playbook

The old Democratic playbook on Republican Supreme Court nominations will no longer work for the Gorsuch confirmation hearings. Democrats used to spend much of their time talking about the importance of precedent and demanding that nominees follow it. The point, of course, was to protect one particular precedent above all—Roe v. Wade—and more generally keep alive the precedents favoring liberalism that were minted in the Warren and to some extent Burger  and even Rehnquist eras.

But this approach no longer fits the times. One reason is multiplication of precedents that the Democratic base wants overruled. Citizens United is the best example. Hillary Clinton was even going to make its overruling a litmus test of her judicial appointments. But there are others too. Senator Schumer has already complained in the context of this nomination about Shelby County v Holder, which found a portion of the Voting Rights Act unconstitutional. And few cases enraged the left like Hobby Lobby, which held that closely held corporation had religious freedom rights under the Religious Freedom Restoration Act.  More generally, given that liberals have not been a majority on Court in several generations, there is growing body of precedent they do not like.

And much of the Democratic party too is changing to become more openly radical. Thus, its base is not satisfied with simply standing on past precedent while hoping that the Court will drift their way. It wants the Court to be a more active partner in progressive social change.

This creates a dilemma for Democrats. The very important advantage of prioritizing precedent is that that appears to make them adherents of following the law, where the law is defined as the past case law of the Supreme Court.

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An Ever Less Deliberative Body

US Capitol dome detail

The Senate has often been referred to as the World’s Greatest Deliberative Body, most frequently by the Senators themselves. But the confirmation hearings on President Trump’s nominations have been marked by an absence of deliberation and responsive argument. They reveal a nation in the grip of polarization and interest group power.

The Democrats have been making a show of holding up  the President’s nominees with late night sessions. And in these sessions they did make some arguments against the nominees. The Republicans almost never responded substantively.  It is not as if they cannot respond. For instance, many of the arguments against Betsey DeVos were very weak based on distortions of her record of promoting charters schools in Detroit and on the inaccurate premise more competition in K-12 would harm rather than help children.  But Republicans recognized that few people were paying attention other than the Democratic base. More dramatic debate would just draw more attention to the Democratic resistance.  And what would please the Republican base were not arguments, but the actual confirmations for which Republicans had the votes.

And lest one think the Democrats were interested in actually persuading their colleagues, they boycotted at least three committee hearings where nominees were going to be debated. Walking out made a great show of anger to please their own base, but made a mockery of deliberation. Woodrow Wilson famously said Congress in action is Congress in committee.  During these confirmations congressional inaction was Congress in committee.

The only time that I saw floor debate come alive was about the question of whether Elizabeth Warren violated Senate Rule 19.

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Gorsuch’s Opposition to Chevron Speaks Well of Trump and Is a Dilemma for Democrats

Judge Neil Gorsuch is worthy successor to Justice Antonin Scalia. He is an advocate of originalism who writes well enough to persuade the public and has the intellectual heft to engage the academy. But there is one way in which he differs sharply from Scalia. He is no fan of the Chevron doctrine, which directs judges to defer to agency interpretations of statutes so long as they are reasonable even if the interpretations are not the best. Given that much of modern law is administrative law and so much of our current democratic deficit is due to the administrative state, this is an important difference.

And it is a difference that reveals something about President Donald Trump, about the changing nature of modern legal conservativism, and about the internal tension of the Democratic opposition to Gorsuch.

A common criticism of President Trump is that he is an authoritarian executive. But he has chosen to nominate a judge who is on the record against giving deference to interpretation of statutes by heads of executive agencies. Gorsuch opposes an important doctrine that would protect the administration’s authority.

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Gorsuch Nomination: Potentially the Best News for Originalism since 1987

With his nomination of Judge Neil Gorsuch President Trump may have done more for originalism than any President since Ronald Reagan. Unfortunately, a few days later, he called into question his own commitment to the rule of law by calling an Article III judge a “so-called judge.”   The juxtaposition of the excellent and the reckless continues what I have argued is the essential pattern of his Presidency:  He makes appointments (except in the trade area) that  on balance advance classical liberalism and limited government, but makes remarks that are foolish with the potential to undermine much of the good his appointments will do.

First, the good news: Gorsuch is a fine nomination, a worthy successor to Justice Scalia in the three ways that count. First, he is an originalist. That matters, because the last two Republican appointees, Chief Justice John Roberts and Justice Samuel Alito, have not shown themselves to be either declared or relatively consistent originalists. And it is originalism tha holds the most promise for maintaining a beneficent Constitution and a constrained judiciary.

Second, as I argued at the City Journal, Gorsuch is a superb writer. To be powerful and influential  with the public, as Scalia was, a justice needs to convey his ideas clearly and pungently. Justice Clarence Thomas, for all his other fine qualities as justice, is not as good as Scalia was at this task.  Gorsuch is in the top 2 percent of all federal judges in this ability.

Third, to be influential with academics, justices must be at home in the world of legal scholarship and theory.

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Acting Attorney General Yates and the Decline of Civic Norms

Sally-Q-Yates

Civic norms in our nation seem to be unraveling. Some citizens and legislators made a concerted effort to delegitimize President Obama by making frivolous claims about his place of birth. Today, other citizens and legislators attempt to delegitimize President Trump by making frivolous claims that his failure to win the popular vote or Russia’s hacking somehow reverses the legal verdict of a presidential election.

The refusal of the holdover Acting Attorney General, Sally Yates, is another troubling step in our the dissolution of our norms. It is a sad matter when citizens and legislators flout them. But it may be of greater concern when executive branch officials do so, particularly when they run the Department of Justice as holdovers in the delicate transition period.

The Department of Justice defends legislation and presidential actions if there is a reasonable basis in law to do so. No Attorney General has ever taken the position that he will defend such actions only if he is confident that they are legal and only if he believes they are just. For good reason.

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The Death of TTP and the Path to Putin

trans-pacific-partnership

The economic costs of ditching the Trans-Pacific Partnership (TTP) agreement are substantial, but there are geopolitical costs as well. TTP was designed to cement an Asian alliance to contain a rising and yet still communist China. Trade agreements often have political as well as economic purposes. The General Agreement on Tariffs and Trade was initially a Cold War instrument. Its core members were originally those of the anti-communist alliance. Growing their economies faster helped the West have more resources to contain the Soviet bloc. But it also brought officials and citizens of these nations into more common enterprises, promoting their overriding common purpose.

An international trade legal regime is one of the most effective soft power methods of containing adversaries. For instance, in the case of TTP we not only strengthened our alliances but provided incentives to China to open up its economy, if it wanted to become a member. A more open economy provides a long-run counterweight to the Communist Party and foreign adventurism. When we give up such tools, we are left with less palatable alternatives—using more military force or pursuing a balance of power diplomacy. Both require sacrifices.

President Trump’s Secretary of State designate has already suggested that the administration may be inclined to a more robust military approach to China.

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America First Leaves Americans Behind

America countdown

President Trump more than any President in decades has embraced industrial policy. He not only wants government to favor manufacturing, but vows to use the tax law to prevent manufacturers who are here from shifting factories overseas. And auto manufacturing seems to be his particular focus. To be sure, in this respect his policy has some continuity with the Obama administration, which intervened in extraordinary ways—including bending the bankruptcy laws—to bail out U.S. auto companies.

Industrial policy fails to reckon with the ignorance of government. Central decisionmakers lack the information to choose the best services and products in which Americans should specialize. The past shows that what is best produced here tomorrow will not be what is best produced here today: many of our most productive lines of work did not even exist 20 years ago, let alone 50 years ago. An industrial policy that puts up barriers to companies from moving factories abroad creates a more static economy here at home, one less responsive to the seizing of future opportunities in an era of technological acceleration.

That policy clearly makes American consumers and American shareholders in American companies worse off, because companies will fail to locate where they would be most profitable and to deliver products to consumers at the lowest possible cost. But a government-directed industrial policy is also not good in the long run for the American worker, because the industries that can provide good jobs for the long run change over time, and change faster as technology speeds up.

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