"The two sides can posture all they want, but in the end, Congress and the president have to reach an agreement. That is not a bad thing."

"It is a good thing. The Constitution does not permit a unilateral solution on either side.... Article I, Section 8 lists the powers of Congress. The first clause of Section 8 provides that Congress may 'lay and collect taxes.' The second clause provides that Congress has the power 'to borrow money on the credit of the United States.' These clauses are absolute.... The debt ceiling is not a restriction on what would otherwise be the president’s ability to borrow; it is an authorization for the executive branch to borrow up to that ceiling.... Nonetheless, Mr. Biden’s advisers reportedly are contemplating violating the congressional debt limit based on a far-fetched interpretation of Section 4 of the 14th Amendment propounded by some academics...."

Writes lawprof Michael W. McConnell in "The Case for Violating the Debt Limit Is Dangerous Nonsense" (NYT).

Will Trump and the GOP Senate get a new Justice confirmed before the election?

My first thought was that they won't even try. They'll use the open seat as a political issue — an argument why it is so important to reelect Trump and to keep a GOP majority in the Senate. And the backup plan can be that if Trump loses, they can accomplish the appointment after the election, before the new Senate and President are sworn in. So what if they said something else before the election?!

But then — in discussion here at Meadhouse — the thought came up that this election could be contested. There's so much talk about election fraud and mail-in voting, that there could be Bush v. Gore type litigation arising in various states, and the outcome of the election could well depend on that. Right now, the Supreme Court has only 8 Justices, and though there are presently 5 conservatives and only 3 liberals, a 4-4 tie is possible, with one vote switch, and Trump might want his person on the Court to lock in a conservative majority.

ADDED: The strongest argument for Trump to go right ahead and immediately nominate someone is that President Obama made a nomination in the election year of 2016 when Antonin Scalia died. Obama's nominee was not confirmed, but that was because the GOP controlled the Senate. There was nothing about Obama's lack of support in the Senate that made him more willing to put forward a nomination in an election year. He made the nomination in spite of the lack of support. Why should Trump refrain when he has Senate support?

AND: "McConnell says Senate will move to confirm Ginsburg replacement" (WaPo).

“President Trump’s nominee will receive a vote on the floor of the United States Senate," McConnell said in a statement hours after the court announced Ginsburg’s death.

Also at that link: "More than 90 minutes after news of Ginsburg’s death broke, President Trump — speaking at a campaign rally in Bemidji, Minn. — seemingly remained unaware of the news.
While closing out the rally, however, Trump alluded to the importance of the Supreme Court’s direction in the upcoming election. 'We will nominate judges and justices who interpret the Constitution as written,' Trump told the crowd, to cheers and shouts. He told his supporters that the next president 'will have anywhere from one to four' vacancies on the Supreme Court to fill. 'Think of that,' Trump said, warning that conservatives would be 'stuck' for decades with a Supreme Court they did not like if the Democrats won in the fall."

And (same link): "Days before she died, Ginsburg told her granddaughter that she felt strongly that her Supreme Court seat not be filled until after the presidential election, according to NPR. 'My most fervent wish is that I will not be replaced until a new president is installed,' she dictated in a statement to her granddaughter, Clara Spera."

Joe Biden ought to come right out and say who he will nominate if he is elected.

"Senate Majority Leader Mitch McConnell (R-Ky.) on Tuesday rejected calls from his Democratic counterpart to subpoena new witnesses in a Senate trial of President Trump, calling it 'a strange request at this juncture.'"

"McConnell was responding to a letter from Senate Minority Leader Charles E. Schumer (D-N.Y.) seeking testimony from senior administration officials, including acting White House chief of staff Mick Mulvaney, who declined to appear in House impeachment proceedings."

WaPo reports the unsurprising news.

Both The Washington Post and The New York Times have front-page articles touting Chief Justice John Roberts as the new "swing vote."

From The New York Times, "With Kennedy Gone, Roberts Will Be the Supreme Court’s Swing Vote":

Justice Sandra Day O’Connor became more moderate when Justice William J. Brennan Jr. and Justice Thurgood Marshall left the court, said Michael C. Dorf, a Cornell Law School professor who clerked for Justice Kennedy, and Justice Kennedy likewise moved to the center when Justice O’Connor departed.

“It could manifest in compromise positions in his taking substantively more moderate stances on issues,” Mr. Dorf said. “He might want to go slowly before taking an abortion case or an affirmative action case, or a same-sex marriage case to potentially overturn Justice Kennedy’s handiwork.”...

Mr. Dorf said that Chief Justice Roberts might act differently now that Justice Kennedy — often the deciding vote in those cases — was gone, much like congressional leaders spare their most vulnerable members of Congress from casting deciding votes on politically difficult issues....

“The best hope is to appeal to the chief’s sense of the court as a special, above-politics institution,” [said David S. Cohen, a law professor at Drexel University]. “Overruling [Roe v. Wade or the same-sex marriage case] in these circumstances would make the court and its justices appear like petty politicians.... [But] these justices don’t get to the point they are at in life without being political actors.... and this may be his political goal.”

From The Washington Post, "Roberts gets another key role on Supreme Court: Swing vote" (that's the front-page teaser headline, inside it's "If it wasn’t the Roberts court already, it is the Roberts court now"):

A court in which Kennedy is replaced by another Trump choice “is also likely to encourage conservative legal activists to shoot for the stars — look for cases seeking to overrule Roe v. Wade, reverse or undermine LGBTQ rights, including marriage equality, and erode the progress toward racial justice that the civil rights movement has fought tirelessly to have recognized by an often recalcitrant court,” [said Elizabeth B. Wydra, president of the liberal Constitutional Accountability Center].

Such bold action is not usually Roberts’s style, and the Supreme Court is institutionally averse to overturning precedents, a legal principle called stare decisis. Roberts’s preferred path, his defenders and detractors say, involves limiting the court’s precedents rather than reversing them....

Leah Litman, a liberal law professor at the University of California at Irvine, said the justices need not overturn the same-sex marriage decision to undermine it. “They could recognize a right for religious objectors not to marry LGB individuals; not to serve them; not to provide them health care; not to allow them to adopt,” she wrote.....

Michael McConnell, a former Republican-nominated federal judge and head of the Stanford Constitutional Law Center, said... “If Justice Kennedy is replaced with an interesting, relatively non-doctrinaire conservative (like the best names on Trump’s list) this could augur a more fluid court with a more substantive middle and fewer 5-4 splits,” he wrote in an email.... "Every action seems to have a countervailing reaction,” McConnell said. “It would not surprise me to see a few of the conservative justices breaking more frequently with the liberal side. The court as an institution does not like to see itself as the instrument of an ideological movement.”

ADDED: The center position is so powerful. Having seen the attention and (faux) adulation given to Justice Kennedy over the years, the Justices must be eyeing the vacancy. Some new person will get Kennedy's seat, but he is likely to be a staunch conservative like Gorsuch. The real vacancy we're seeing is in the "swing vote" position, and any Justice could feel pulled to try to sit there. Now, the liberals can't really aspire to occupy the position, but one of them, probably Justice Kagan, might become the force behind the swinging of one of the conservatives, and Roberts is the most likely to get swung. I picture Roberts seeing an opportunity to improve the reputation of the Court and to overcome the overt political look it's acquired over the years. I think there should be more elegant ways to do that than to simply throw his vote to the liberal 4 now and then. But if that's all he can do, I suspect he will.

"You leave my husband alone!"

Elaine Chao is tough:



She looks so good here that I had to wonder whether the whole thing was staged. But WaPo tells it like this:

Protesters confronted Transportation Secretary Elaine Chao and Senate Majority Leader Mitch McConnell (R-Ky.) on Monday over migrant family separations at the U.S.-Mexico border, a sign that outrage over the Trump administration’s hard-line immigration policy is not abating.

Chao and McConnell, who are married, were about to climb into a black SUV when they were approached by a small group of young men at Georgetown University. One started repeating, “Why are you separating families?”

A short confrontation ensued. “Why you don’t leave my husband alone? Why you don’t leave my husband alone?” Chao responded as McConnell got into the SUV.

Chao and McConnell are leaving an event. This would be worse if they were confronted at their home. The men probably see themselves as behaving in a mild manner, but thronging around a woman — a 5'3", 65-year-old woman — looks terrible, and Chao got a huge advantage out of this, because she looks courageous, poised,  and nervy.

"She was warned. She was given an explanation. Nevertheless, she persisted."

I agree with John. It's a great meme.

The quote is from Mitch McConnell, explaining his senatorial effort at squelching Elizabeth Warren, and the forces of the internet have turned it into wonderful things like this:

"[S]tanding up for traditional marriage has turned out to be too much for the elite bar."

Adam Liptak writes.

In dozens of interviews, lawyers and law professors said the imbalance in legal firepower in the same-sex marriage cases resulted from a conviction among many lawyers that opposition to such unions is bigotry akin to racism. But there were economic calculations, too. Law firms that defend traditional marriage may lose clients and find themselves at a disadvantage in hiring new lawyers.

But some conservatives say lawyers and scholars who support religious liberty and oppose a constitutional right to same-sex marriage have been bullied into silence. “The level of sheer desire to crush dissent is pretty unprecedented,” said Michael W. McConnell, a former federal appeals court judge who teaches law at Stanford.

"Of all the stretches of executive power Americans have seen in the past few years, the president's unilateral suspension of statutes may have the most disturbing long-term effects."

"As the Supreme Court said long ago (Kendall v. United States, 1838), allowing the president to refuse to enforce statutes passed by Congress 'would be clothing the president with a power to control the legislation of congress, and paralyze the administration of justice.'"

"If the court dismisses the Proposition 8 case on standing grounds and strikes DOMA down on federalism grounds..."

"... the combined effect would be to reaffirm America's democratic, decentralized decision-making process without imposing an answer—one way or the other—to the same-sex marriage question," writes lawprof and former federal judge Michael McConnell.

By taking such a path, the court would be spared from imposing a single nationwide definition of marriage as a matter of constitutional law, and from having to rule, for all time, that there is or is not a constitutional right to same-sex marriage — a momentous step that some justices might be reluctant to take. It would leave the issue to the states, at least for the time being. This course might appeal to centrist justices like Anthony Kennedy, John Roberts and Stephen Breyer — and perhaps could even command a unanimous court, which would have a welcome calming influence on the nation's culture wars.

Considerations of these sorts have long been part of the virtue of judicial modesty, too often undervalued by partisans on both sides.

If we welcome the Court's calming of our culture wars — if we believe calming culture wars is a longstanding part of judicial virtue — we ought to compare the benefits of determining once and for all that the choice of marital partner belongs in the hands of the individuals who enter these relationships.

Individual rights matter, and it is the Court's duty to say what they are. If there is no proper case before the Court — if there really is no standing — then the Court has the duty to shut up. But the Court should no more shrink from saying what rights are than it should strain to find them to be something other than what they are.

If the Court could demonstrate its capacity to live up to these duties and if we could believe in the accuracy of these announcements about the substance of our rights, then telling us what our rights are ought to have a calming effect. And yet even if the Court's reputation is so far gone that we can't believe its announcements anymore, the duty remains.

Maybe it won't be calming, but the notion that the Court must calm us, when it is a question of our rights, defies the meaning of rights.

The misuse of Citizens United in bemoaning Scott Walker's recall victory.

Michael McConnell — the Stanford lawprof and former federal judge — has a fine op-ed in the Wall Street Journal. The effect of Citizens United "was almost exactly the opposite of" what anti-Walkerite pundits like the Greg Sargent and Lawrence O'Donnell have been saying.

Labor unions poured money into the state to recall Mr. Walker. According to the Center for Public Integrity, the NEA (National Education Association), the nation's largest teachers union, spent at least $1 million. Its smaller union rival, the AFT (American Federation of Teachers), spent an additional $350,000. Two other unions, the SEIU (Service Employees International Union, which has more than one million government workers) and Afscme (American Federation of State, County and Municipal Employees), spent another $2 million. Little or none of these independent expenditures endorsing a candidate would have been legal under federal law before Citizens United.

By contrast, the large spenders on behalf of Mr. Walker were mostly individuals. According to the Center for Public Integrity, these included Diane Hendricks, Wisconsin's wealthiest businesswoman, who spent over half a million dollars on his behalf; Bob J. Perry, a Texas home builder, who spent almost half a million; and well-known political contributors such as casino operator Sheldon Adelson and former Amway CEO Dick DeVos, who kicked in a quarter-million dollars each. Businessman David Koch gave $1 million to the Republic Governors Association, which spent $4 million on the Wisconsin race.

These donations have nothing to do with Citizens United. Individuals have been free to make unlimited independent expenditures in support of candidates since the Supreme Court case of Buckley v. Valeo (1976).

And this is the pattern we should expect generally, McConnell says, because business corporations don't want to offend customers by putting their names on partisan advertising. It's the unions that don't mind associating their names with one party — the Democratic Party. Sure, those rich individuals who get their money working for corporations can spend all they want, but recognition of their right to do that pre-dated Citizens United by more than 4 decades.

"We've never thought the debt ceiling was the best leverage for a showdown over the entitlement state..."

"... and now it looks like Mr. Obama is trying to use it as a way to blame the GOP for the lousy economy," says the Wall Street Journal:

This may have been the President's strategy all along: Take the debt-limit talks behind closed doors, make major spending cuts seem possible in the early days, but then hammer Republicans publicly as the deadline nears for refusing to raise taxes on business and "the rich."

This would explain the President's newly discovered fondness for press conferences, which he has rarely held but now rolls out before negotiating sessions. It would also explain why Mr. Obama's tax demands have escalated as the August 2 deadline nears. Yesterday he played the Grandma Card, telling CBS that seniors may not get their August retirement checks. Next he'll send home the food inspectors and stop paying the troops.

Read the whole thing. It's an effort to explain that McConnell is not "selling out Republicans."

"McConnell Proposes Giving Obama Authority To Raise Debt Limit Alone."

Crafty? Or pusillanimous?

Michael McConnell states the constitutional problem with the "deem and pass" more clearly and concisely than anyone can explain what the "deem and pass" is.

Is that a clue that something really devious is going on?

Article I, Section 7 clearly states that bills cannot be presented to the president for signature unless they have been approved by both houses of Congress in the same form. If the House approves the Senate bill in the same legislation by which it approves changes to the Senate bill, it will fail that requirement.

The actual constitutional text is: "Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States."

No one doubts that the House can consolidate two bills in a single measure; the question is whether, having done so, it may then hive the resulting bill into two parts, treating one part as an enrolled bill ready for presidential signature and the other part as a House bill ready for senatorial consideration. That seems inconsistent with the principle that the president may sign only bills in the exact form that they have passed both houses. A combination of two bills is not in "the same form" as either bill separately.

McConnell is fending off the argument that the House, under Article I, §5 ("Each House may determine the Rules of its Proceedings"), has the authority to bundle 2 bills together and vote on them at the same time. He also must contend with the argument — which has some case law in support — that the House makes the final call on the meaning of the Constitution in this area.

Read lawprof Jack Balkin's response to McConnell:

As I understand the rule in question, it does not actually "consolidate two bills into a single measure." Rather, it says that once the House votes on the reconciliation measure, it also votes on the Senate Bill....

McConnell's objection is formalist: He concedes that the House could have separate votes on both bills, and send one to the President and the other to the Senate. His sole objection is that the House leadership has decided to vote on them together using a single procedural rule.

But if he wants to make that kind of formalist argument, the House has an equally formalist rejoinder: The use of this particular procedural rule does not consolidate the two measures into a single measure. It just consolidates a vote on the two measures. In fact, the language of the rule actually preserves their separate character; it refers to the language of the reconciliation measure and the Senate bill separately.

What the leaders of the House would say is that McConnell has made a basic mistake: He has confused a bill with an internal rule for voting on a bill....

... The Constitution leaves to Congress to decide how to authenticate bills, and the Court won't second-guess the evidence....

What I've observed is that the Supreme Court employs formalistic-sounding arguments as a convention of opinion-writing when it is confronting Congress over matters like this and finding something unconstitutional. But, I think, a judicial intuition that something is amiss precedes the opinion-writing, and that intuition has to do with much more than a parsing of the text. As Balkin shows, you can go either way with the text if you want. The deeper question is whether the procedure deprives us — the people — of a structural safeguard that would protect us from the abuse of power. Is this something that matters, something we should care about, something that operates to preserve the accountability of our representatives?  And the answer to that question must be disaggregated from the question whether we like the substance of the bill/bills. If you go with Balkin because you want the health care reform, or with McConnell because you don't, then you are not talking about the Constitution.

McConnell's main aim is to create doubt about the "deem and pass" and thereby affect the vote in the House. He ends his op-ed:

Will wavering House members want to use this procedure when there is a nontrivial probability that the courts will render their political sacrifice wasted effort? To hazard that risk, the House leadership must have a powerful motive to avoid a straightforward vote.

Whether you want to think about the Constitution or not, you may ask: If this reform really is desirable, why are they doing it in such a bizarre way? The constitutional questions add heft to that question. If McConnell's interpretation is good, the procedure is all the more bizarre, and the doubts that arise are aggravated. If Balkin's right, then everything's fine, calm down, let it go. They are talking about law, but they are talking to Congress, trying to affect the vote. Predictions about what courts will and will not do play into the present debate.

What seems most important to me, both politically and in answering the constitutional question (if it, ultimately, becomes necessary), is whether the members of the House of Representatives understand and make it absolutely transparent that what they are doing is voting on 2 bills and that the Senate bill, if approved, will go independently and directly to the President for signature, and that, upon the President's signature, that bill will become law on its own, without any regard to whether that other bill ever makes it through the Senate and into law later on.

If the members of the House of Representatives are going to deny that they voted for the Senate bill that became law (on its own) or if they will say that they were somehow caught unaware or betrayed by the Senate or tricked, then I think the rule is unconstitutional. But if they cannot use the rule that way — as political cover — why use it at all?

"The power to set compensation at large American businesses is especially subject to potential abuse, favoritism, arbitrariness, or political manipulation."

"It is no reflection on Kenneth Feinberg, who has a sterling reputation and who appears to have approached these sensitive duties with a spirit of commendable integrity, to say that the checks and balances of the Constitution should be scrupulously observed. They were not. Because he is not a properly appointed officer of the United States, Mr. Feinberg's executive compensation decisions were unconstitutional."

"My first love is teaching and scholarship."

Michael McConnell resigns from the 10th Circuit Court of Appeals — after a mere 7 years — to teach at Stanford.

Better to be a lawprof than a judge, don't you think?

At the link: pity for the law clerks who are now plunged into the job market.