This is the third part in our series of blog posts about the latest term of the Supreme Court.
We'll get to some basic structural stuff in this post, with the question of non-state territories, over which the national government is often said to have a direct control. Does it? With regard to Puerto Rico, and possibly the District of Columbia: what does that entail? Obviously there are local authorities for both of those places -- heck there are also park rangers for national parks who have various sorts of discretion. But this isn't the federal layering of sovereigns we've heard about, is it?
The Appointments Clause
I'm looking at a clause of the constitution that seldom makes the headlines, but that is nonetheless of great importance within the overall system. Article II, sect. 2, clause 2, the "appointments clause." It says that that president shall nominate, and with the advice and consent of the Senate he shall appoint, all "officers of the United States."
The same Constitution also provides (under Article IV) that Congress (meaning of course both the House AND the aforementioned Senate) shall make all needful rules and regulation respecting the territory of the United States. In this context, "territory" meant occupied land not recognized as a State, and it is under this clause that Congress passed the Puerto Rico Oversight, Management, and Economic Stability Act (PROMESA) in June 2016.
The law authorized the island's government to enter a bankruptcy-like process, creating an automatic stay of creditor actions to enforce claims against that government. It also creates an oversight board to re-organize the commonwealth's finances, while overseeing and monitoring the budgets. This board is known colloquially as La Junta.
The President (Obama) appointed all seven members of La Junta, six from a list of individuals recommended by congressional leaders.
Several of the island's creditors, including hedge fund Aurelius Investments, challenged the constitutionality of PROMESA in the hopes that if they got it tossed out they could resume their collection efforts. They focused on the system of appointment. Although as noted above the President consulted with both Houses of Congress, there was no specific consent/confirmation by the US Senate required for his appointments.
The first circuit accepted this argument. But on June 1, 2020, in Financial Oversight Board v. Aurelius, SCOTUS unanimously reversed, saying that membership in La Junta did not make one an "officer of the United States," thus it does not bring one's position within the scope of the appointments clause. Indeed, it makes one a local officer analogous to, say, the mayor of the District of Columbia. Breyer's opinion says, "The practice of creating by federal law local offices for the Territories and District of Columbia that are filled through election or local executive appointment has continued unabated for more than two centuries." No Senate confirmation is required for any of them.
This is fascinating to me, for a lot of reasons I cannot properly explicate right now. I have some as yet incompletely formulated thoughts about the constitutional status of Puerto Rico, the District of Columbia, and federally administered territories in general, considered from a pragmatic point of view. I lay down the above paragraphs as a marker. I expect that there will be further cases on these subjects over the October 2020 session, and I expect they will help me to develop these thoughts more completely.
In the meantime....
Congress Wants to See Tax Returns
Here is the bit they held us up for. On Tuesday, May 12, the US Supreme Court held arguments on two controversies over the release of President Donald Trump's tax returns. One of the cases concerned a committee of the House of Representatives seeking the returns as part of its "oversight" responsibility. The other involved a state's (New York) criminal processes and a subpoena served on an accounting firm in possession of these records. Former Presidents Nixon and Clinton haunted the proceedings.
Trump was making an old-fashioned "executive privilege" claim against both the House and the New York prosecutors.
The course of the argument suggested that the decision, when it came, would not break down along stereotypical partisan lines. Neil Gorsuch, a Trump appointee, seemed to be especially resistant to the notion that the President has a privilege to decide what he will or won't make public.
The Court ended up "splitting the baby" on these disputes. On the subject of the criminal investigation, in a 7 to 2 decision (only Alito and Thomas dissenting) they made the valuable point that nothing in the constitution precludes or even requires a heightened standard for state prosecutorial subpoenas to a sitting President. Roberts wrote a resonant opinion, citing an old adage that the law has a right to every man's evidence, and adding that "every man" includes the President of the United States.
Kavanaugh wrote a concurrence, saying that he would reach the same conclusion as Roberts for somewhat different reasons -- the distinctions he tries to draw don't seem to me especially noteworthy. I can only gather that he wanted to put some rhetorical decision between this decision and his own name. Gorsuch joined with Kavanaugh. So Trump's assertion of executive privilege was here so out of line that he couldn't get his own two appointees on board, although they did give him the figleaf of a concurrence based on some undefined distinction rather than simply joining in with Roberts.
On the second case, Trump v. Mazars, the court seemed to be saying that Congress had overreached, going beyond the proper extent of its oversight/investigatory powers. Those powers don't exist for their own sake, but solely as an adjunct to the legislative power, and in this instance the nexus with possible legislating was not especially tight. Loathe as I am to grant any point to the Orange Dynast, I have to say that this point is not unreasonable.
The opinion remands, so Congress' lawyers can make the argument that the nexus does exist, after all, in the court[s] below. Beyond that, congressional committees could go back to the drawing board. They could work up a bill to which this request would be specifically pertinent (limiting public campaign financing to candidates who can establish that they aren't tax cheats?), place it in the hopper, then make another such demand. But the remand itself allows the administration to run the clock out between now and November. For that matter, even in the Vance case there is room for clock-running.
Still, we should be happy these decisions are as reasonable as they are. Nowadays, when people like Roberts and Gorsuch refrain from kissing the Dynast's ring, it increases the grounds for optimism.
California as a Sanctuary State
Now I'd like to talk briefly about an argument that SCOTUS decided not to hear at all.
On June 15, the court announced that it would not hear arguments in the case of US v. California. This is a sanctuary cities-or-states case. The administration wanted to argue that California's sanctuary policy undermines federal policy and should be void. They won't get a chance. Only two dissenters from that -- Thomas and Alito (Bushies both, though they represent different generations of that family.) Neither of Trump's appointees sides with him.
In 2017, California passed a law (SB 54) that prohibited state or local officials from cooperating with federal immigration officials, for example by providing federal authorities about the immigration status of persons in custody.
The Trump administration responded with a lawsuit, arguing that any such state law is preempted by federal law. The United States lost this one at the federal court, lost again in the 9th circuit, and asked the Supreme Court to take the case last fall.
So, as I noted above, in mid June the court announced that it was denying review. So California wins, and other sanctuary cities/states within the 9th circuit win. But the denial of cert does not have precedential force, so it isn't clear that this matters much should, say, Texas pass such a law and face an analogous lawsuit.
This is a case of a sort that the late Alexander Bickel would say displays the "passive virtues." Courts sometimes display their prudence not by what they do but by what they decline to do. Yet immigration disputes cannot all be resolved through such passivity. We move to a controversy in which the court did have to do something.
Procedural Foul-Up in the Matter of DACA
On Thursday, June 18, the Supreme Court announced that by a 5-4 vote it was voiding the administration's effort to rescind the Obama-era executive program known as the Deferred Action for Childhood Arrivals program (DACA). The essence of it was suggested by that name: the executive branch (unilaterally) decided to refrain from prosecution and thus to refrain from deportation with regard to people who had been brought by their parents into this country illegally, and certain other measures were taken to allow those children, as many have become young adults, to normalize their lives, to come out of the shadows.
The attorneys for the beneficiaries of DACA, often called the "Dreamers," hoped for a broad ruling. They argued that the rescission of DACA was a breach of the 14th amendment's equal protection clause because it was motivated by animus against Hispanics. The court rejected that contention. Indeed, only Sotomayor seemed receptive to it.
Lower courts had kept the program alive pending the appeal, so although no new applications for DACA status have been accepted since September 2017, it has continued to be a critical shield for 670,000 unauthorized immigrants. President Trump likes to say that he is a friend to the Dreamers, that he will look out for their interests once he has dismantled this ill-conceived Obama program.
But, frankly, no rational person not bought and paid for by the Orange Dynast can take that claim seriously. He has given no evidence of caring about the Dreamers as anything other than as hostages. He will dismantle the shield in place for them now, if allowed to do so, so that they will be more vulnerable hostages. He will then surely give them some alternative legal protection if he receives some ransom for it. Donald fancies himself an expert at the art of the deal -- on no real evidence other than that he once hired someone to write a book for him with that phrase on the cover. And his idea of a "deal" always sounds like a hostage negotiation.
The argument that won the day in DHS v. Regents was procedural. The kidnapper was foiled because his ransom note was sloppily done.
States Get to Control Their Electors
Then there is the matter, the final case for our consideration today, of the independence of the electoral college.
Back in late 2016 we all had some reason to think about the institution of the electoral college, which enhances the significance of low population states for choosing a President. As Trump's victory sunk in, there were some calls for electors to defy their mandate, to become "Hamiltonian electors" and deliberate -- and, presumably, vote for Clinton rather than Trump despite the way their state had voted.
But the actual "Hamiltonianism" (with due deference to Broadway's centrality to vocabulary -- they were until not long ago called "faithless electors,") worked the other way. Electors pledged to vote for Clinton didn't want to. I believe that they wanted to make a point of their Hamiltonian discretion in the hope that a larger number of Trump pledged electors would catch the fever and do likewise. In Washington, two electors were fined when they wrote in votes for Colin Powell instead. And in Colorado, an elector tried to write in John Kasich's name. I'm not sure how mechanically that was prevented -- but he was fired and replaced before he could do such a horrible thing.
On July 6, the Supreme Court decided, unanimously, that the states are entitled to control their electors. They ruled in the Washington case, and then decided the Colorado case as a per curium reversal. The opinion in the Wash case is here: https://www.supremecourt.gov/opinions/19pdf/19-465_i425.pdf.
There is a lot to say about it, and I may some more at some later time. For this wrap-up, I'll merely offer two brief quotes. First, from Kagan's opinion, in which everybody except Thomas joined. Kagan writes, "The Electors' constitutional claim [to discretion in casting a presidential vote] has neither text nor history on its side. Article II and the 12th amendment give states broad power over electors, and give electors themselves no rights."
Justice Thomas, in a concurrence joined in part by Gorsuch, quarreled with Kagan's argument on the Article II language, but Thomas settled the case under the 10th amendment. That amendment says that any power not given to the federal government is left with the states. "Because I would decide this case based on that fundamental principle, I concur only in the judgment" Thomas writes.
The COTUS, on Thomas' reading doesn't give the federal government any authority to limit the discretion of the states' electors, but that doesn't mean they have any rights in the matter -- it means the matter is left with Washington and Colorado, which in Thomas' view have made use of that power in their own statutes.
Tomorrow we will discuss other important constitutional issues addressed this term, including abortion, freedom of religion, and the compulsion of speech.
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