The Liberty Medal

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The Liberty Medal

2018 Liberty Medal Recipient: President George W. Bush and Mrs. Laura Bush

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The Liberty Medal

2018 Liberty Medal Recipient: President George W. Bush and Mrs. Laura Bush

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The Liberty Medal

2018 Liberty Medal Recipient: President George W. Bush and Mrs. Laura Bush

Podcast: Can the President Declare a National Emergency to Build the Wall?

Jeffrey Rosen: [00:00:00] I'm Jeffrey Rosen president and CEO of the national Constitution Center and welcome to We the People, a weekly show of constitutional debate. The national Constitution Center is a nonpartisan nonprofit chartered by Congress to increase awareness and understanding of the Constitution among the American people. President Trump and house Democrats are at an impasse about a White House to build a wall on the southern border and President Trump has talked about the possibility of issuing an order declaring a national Emergency to build a wall. On this episode of we the people we ask, what would happen if the president decides to declare a national emergency and divert military funds to build a wall? What statutes could he rely on and would this action violate the constitution? Here to illuminate the statutory and constitutional arguments on all sides are two of America's leading constitutional Scholars, and I'm thrilled that they've agreed to join us. Sai prakash is James Monroe distinguished professor of law at the University of Virginia law school. He is the author of Imperial from the beginning the constitution of the original executive and a contributor to the interactive constitutions article to explainers on the vesting clause and the take care clause which dear We the People listeners, please check out after the show. Sai thank you so much for joining.

Sai Prakash: [00:01:31] Great to be here Jeff.

Rosen: [00:01:33] And Mark Tushnet is William Nelson Cromwell professor of law at Harvard Law School. He is one of America's leading constitutional Scholars author of the leading case book on constitutional law, which I have the pleasure of using when I teach constitutional law and his most recent book among many is the Constitution of the United States of America the contextual analysis. Mark it's an honor to have you with us.

Mark Tushnet: [00:01:57] Thanks for having me.

Rosen: [00:01:59] Let us begin with the broad and obvious question and we will begin with Sai. If President Trump were to issue an executive order declaring a national emergency and diverting Military funds to build the wall would that violate the constitution or not? 

Prakash: [00:02:16] Well Jeff, I think the answer to that really turns on the statutory question. I don't imagine. That the president or his lawyers will make an argument that's grounded entirely on the Constitution.   They'll make references to the president's role as commander in chief, they'll make references to national Security. But I don't imagine that they'll say that the constitution independently grants the president authority to take money from the treasury and build a wall instead. They'll be relying primarily on statutory arguments. And so whether the president has authority to build a wall will be primarily a question I think of statutory law. There'll just be some references to national Security that are designed to try to get listeners to support the president's actions.

Rosen: [00:00:35] Many thanks for that. We will delve into the statutory arguments in a bit. But Mark, let me begin by asking you the same question: if the president were to issue a national emergency order would that violate the constitution or not?

Tushnet: [00:00:50] I think the way to think about that is to start with the proposition which I think most constitutional theorists agree with that. Every government has to have lodged in it somewhere the power to declare emergencies. With the effect of suspending some existing laws. The real question is I think we're that power is going to be located and in our system, there are I think. Two candidates one as I suggested is that the power is ultimately lodged in Congress, which then can delegate to the president the power to declare emergencies under conditions that Congress has specified or. The alternative is that the power is lodged in the president through something like the take care clause or even certain foundational Notions of what it means to have a constitution for an ongoing national government.

Rosen: [00:02:07] Sai you mentioned that it would turn on the statutory question because you don't think there's a residual executive power. Tell us about the Youngstown case where President Truman tried to seize the steel mills and the court by a 6 to 3 vote said he couldn't rely on his commander-in-chief power to do that and the Congress, far from authorizing the action had, refused to authorize it and Justice Jackson famously gave us three categories: one when Congress has authorized the action and the president operates at his highest level of constitutional security, two the kind of zone of twilight where congress's intent is ambiguous and third where Congress has refused to authorize the action and there the president's power is at its lowest ebb. The Youngstown Court found that Truman's action was in the lowest ebb category because Congress had refused to authorize the stopping of the strikes in question. How do you think this situation would compare to Youngstown and which of Justice Jackson's categories do you think the president's actions would fall into?

Prakash: [00:03:10] Well, I certainly want to answer that Jeff. But I also want to at the end of my remarks perhaps get back to what something that Mark spoke of I think again this, you know, if you- once you're in the Youngstown framework that you so expertly outlined it's really a function of how to read congress's actions in this area. And on the one hand Congress- the president has specifically asked Congress right now to give him money to build a wall. And thus far they haven't given him the money that he wants- certainly not as much as he wants. On the other hand the president's lawyers are going to cite statutes that they believe allow him to shuffle money around and to use that money to build a wall without regard to whether or not Congress has acquiesced to his current demands and so, you know Youngstown itself talked about these three categories, but it's clear that you know, sometimes congressional action is murky; it's not obvious how- where to locate it; has Congress  approved of something? Has Congress  disapproved of something? Was Congressman truly silent? And of course, you know, you could make an argument for all three of those categories in this case. You could argue that by Statute - I'm sure the president's lawyers will do this - by Statute Congress has authorized him to to move and Shuffle money around. You could argue that Congress has implicitly disapproved of this by not giving him the money that he's now currently seeking, and you could argue that Congress just hasn't, you know hasn't spoken to the question of whether or not the president, you know has statutory authority to shuffle things around. They haven't revisited the statutes in question that the president's likely to rely upon to say, you know, either definitively that he can use that  money to build the wall or to say that he can't so I think you know the Youngstown framework seems quite interesting, but the problem has always been how to actually characterize the activity in question. That was true in that case and it's equally true today.

Rosen: [00:05:11] Mark, Sai is interested in taking up the Constitutional as well as the statutory question and I was too after your first remark. So I'll ask you which category of Youngstown you think the action would fall into and in Youngstown Truman's lawyers initially claimed that there was inherent executive Authority separate from the Congressional authorization. Do you think that the president could rely on his take care authority to declare a national emergency? Independent of the statutes and and then where do you think the statutes fall out?

Tushnet: [00:05:46] I actually have a fairly expansive view of presidential Authority. So just to outline the argument the president has the duty to take care that the laws be faithfully executed, those laws include the Constitution. The Constitution is the Constitution of the United States. So it presupposes that there is a United States. And so if in the president's judgment the action is necessary to preserve the United States as a nation. I think he can take care of by declaring an emergency and doing what is permissible. I do think it's worth noting that there is a difference between what President Truman did in the steel seizure case and the current situation, at least unless you push the argument further because in addition to the commander-in-chief or whatever other powers the president might have there's actually an Express Prohibition in the Constitution dealing with spending money. Article 1 Section 9 says no money shall be drawn from the treasury, but in consequence of Appropriations made by law, so if the current president even after declaring an emergency, wants to spend money, he's got to find it in some already appropriated fund

Rosen: [00:07:19] Sai, what is your response to what Mark called his expansive view of executive power under the take care Clause. What would the framers have made of that claim? And what do you think of his thoughts on the relation between the take care and the Appropriations Clause?

Prakash: [00:07:35] I think from an Originalist perspective Jeff I would say that the founders did not believe that the president had any emergency power. The one exception would be the president's power to call back Congress into session, which I believe they gave the president in order to get Congressional authorization to take the emergency measures that he thought was necessary. I think the way that the founders thought about emergencies, they thought that the legislature ruled The Roost so to speak; that the legislature could suspend habeas corpus, the legislature could authorize martial law, in advance of an emergency Congress might provide authority to the president. And of course Congress has done that in numerous statutes. And so that's the way I think they thought that most emergencies could be handled as a legal matter. They also thought it was possible that the executive might act illegally and then go to Congress for for absolution. And I think that actually well reflects the washington Administration. There were a number of crises during the Washington administration; George Washington never argued that he had inherent constitutional authority to deal with them. He always relied upon statutes or he didn't take the measures that he thought were necessary in order to deal with the problem. He just waited for Congress to come back and deal with those problems himself. So I disagree with mark's reading of the President's duty. I think the way I had conceived of the presidential oath is the president has to use whatever resources are at his disposal lawfully provided by Congress to deal with the problem at hand. He doesn't have the power to suspend habeas corpus to expend money or to raise the size of the army, even if he thinks it's necessary to do so, he can he can take those actions, he'd be acting illegally and then it's up to Congress to decide if it wants to forgive him, but it's not illegal act. I think the duty in the oath doesn't Supply Power. It just imposes an obligation.

Rosen: [00:09:37] Thanks for that. Mark, your response? Sai says that your broad vision of executive power is not consistent with the original understanding. Do you agree or disagree with that? Where do you root the broad vision and how ultimately would you come out on the interplay between the take care and the Appropriations Clause as a constitutional matter?

Tushnet: [00:09:54] I think the- I guess the way I would put it is developments in thinking about what constitutions do since the framing period have brought in to view the problem that legislatures really can't anticipate all the kinds of emergencies that might arise and that there might be call them logistical problems in calling them back to get them to do something when an unexpected or unanticipated emergency arises and at the very least in that interim period, I think a well-designed constitution would authorize the president to- would actually affirmatively authorize the president to take action rather than in as in Sai's Vision allow the president to take the action in an extralegal kind of way subject to subsequent ratification by Congress. I think it's I- my view is the action would be lawful from the beginning in this interim period and then it might be terminated by Congress when it came back into session, but it would be lawful when taken.

Rosen: [00:11:27] Sai understanding that our vision of executive power has strayed from the founding era might Mark's broad Vision plausibly be rooted in practice under which presidents have claimed emergency powers under the Constitution and courts have been quite open to the idea, especially in the 20th century?

Prakash: [00:11:46] I think Mark is onto something in terms of modern conceptions. I think there are many people who share the idea that the executive should be able to take interim steps. Certainly when Congress is not in session. Of course, that was Abraham Lincoln's justification for the suspension of habeas corpus: Congress was not in session and he thought it was silly to suppose that only Congress could suspend habeas corpus. And so I think that way of thinking has influenced people and  obviously in more recent times I don't think there's any firm boundary for for that sort of thinking. I think as mark's comment suggested, if you believe that then you're going to come away perhaps thinking that the President should be able to do anything he thinks is necessary while Congress is not in session then Congress can perhaps respond. In Youngstown itself, I think there are Scholars who, when looking at the notes of the conference of the justices conclude that had Truman's order actually been temporary Truman would have won the case. It was the indefinite nature of the seizure that lost the case for him. But of course he wanted it in an indefinite seizure because a temporary seizure wouldn't have accomplished his purposes. His purposes I think were partly political and not entirely or primarily related to the Korean War.

Rosen: [00:13:07] Well in order to make a judgment about whether or not the president's actions today would be justified under federal law we have to look at the national Emergency act which is one of the key statutory Provisions authorizing emergency reallocation of certain military construction funds and then there's another statute that authorizes emergency reallocation of civil Works projects funds. Mark, this is technical. But broadly the president's lawyers are arguing that the national Emergency act might allow the president to declare an emergency and reallocate funds that require or may require the use of the armed forces. His opponents say that you can only divert the funds to build authorized Civil Works or military construction and civil defense project that're essential to the national Defense; authorized means authorized by Congress and not just the executive branch and this action wouldn't qualify. Where do you come down on this complicated statutory question?

Tushnet: [00:14:11] I think the statutory question is a genuinely difficult one primarily because of two features of the statute itself. The first is the language that you've read which says the emergency- when- the emergency has to require the use of the Armed Forces. Now require can be read with either a fair amount of stringency, you really need to use the Armed Forces, or more generously. It would be helpful or appropriate to use the armed forces. So that's one part. Maybe building the wall Is not something that requires the use of the Armed Forces. The second part of the statute says that the funds that can be used can be used to build and I may get the precise language wrong, but it's something like military facilities and the natural reading of that is something like Barracks for soldiers who are deployed to someplace where there wasn't housing for them or to build a landing strip for airplanes to land in a situation that in the nation where all of a sudden US forces have been deployed. So the question on that provision is whether the wall can fairly be described as a military facility in light of the things that are described as military construction elsewhere in the statute, but the natural reading of the statute would be that the wall is not that. This is not an emergency that requires the armed forces and that the wall isn't a military facility, but in the situation where the president claims that national Security is at stake, there might be interpretive principles that would be more - lead us, us meaning the people of the United States, and secondarily the courts, to be more deferential to the president's judgment. 

Rosen: [00:16:48] Thank you for parsing the statute so carefully and thoughtfully. As you say section 2808 of the statute has two requirements, which you well recited. The president can declare a national Emergency that requires the use of the Armed Forces and if that's the case you can then use the military action funds to undertake military construction projects. So understanding that those are the two criteria Sai do you think that the president will have the statutory authority to reallocate funds under this provision or not?

Prakash: [00:17:22] Well first let me say that there's I think there are multiple statutes that may bear on this question. And this is just one of them. A very useful summary of all the statutes that might apply is discussed by Margaret Taylor on the Lawfare site and I encourage readers to take a look at it. You know, I think like Mark this is not easy. I agree with Mark. It's not an easy- not an easy question to answer if we're just looking at section 2808 here. I think the first question is well, what does it mean to be a national emergency? And I think people might be surprised how easy it is to declare a national emergency and how often they're declared and the sorts of things you know that trigger a declaration of national Emergency and it might very well be that if we look at all the situations where presidents have declared national emergencies, we might come to the conclusion that very few of them are national emergencies and that when Congress legislates against this background, they know that a national emergency is not something that occurs once in a half a century but is something in fact that occurs with alarming frequency that is to say congress gives the president the authority to use certain Authority In a national emergency and then lo and behold we find national emergencies left and right. So we have this national Emergency required. We have the use of the Armed Forces. My understanding is the president deployed thousands of members of the Armed Forces to the Border prior to the election. It may very well have been to create a predicate for the use of this Authority. And then the military construction projects language that mark cited it's a little ambiguous right? Because what is a military construction project? Is a military construction project construction of a military facility which mark's suggested, or is it instead something a construction project undertaken by the military without. So whether it's for a base or not, when you look at the statutory definition of military construction that's referenced in you know, in the statute itself. It says it includes any construction development conversion of any military installation. So that language could suggest it's got to be a military installation. On the other hand, it says includes these things and it doesn't say these are the only types of things that are to be considered military construction. So I just don't find this statute- I don't think the statute tells us one way or the other. I think it would be interesting to know, how has this chapter been used in the past? What sorts of things have been constructed under it? And if there's been a tradition of building fences along the border or otherwise then obviously the president has a stronger claim.

Rosen: [00:20:12] So I hear from both of you that the statutory question is tough and complicated but Mark I learned from your case book- I teach my students that we have these three Youngstown categories. So if you had to pick one, if you were a judge or if you had to predict which one the Supreme Court would pick, which one would it be and tell us also about the relevance if any of the fact that the president asked for money for the wall and Congress refused to Grant it? In the steel seizure case Congress had refused in the taft-hartley ACT to Grant The Authority that Truman was claiming and that was relevant to the court's determination that the action fell into the lowest ebb category. Does it matter here and which category you know in the end if you had to pick, would you choose?

Tushnet: [00:20:59] I would start out with an observation, which is that even in the category where the president's power is at its lowest ebb doesn't mean that the president's power is zero, it's just much less than it would be if Congress hadn't spoken. Second the lowest ebb is as I read the situation where Congress has affirmatively prohibited the president from doing what the president- the actions the president has taken. So I read Jackson as saying in the taft-hartley Act of 1947 and The Selective Service Act of 1950 Congress had actually prohibited the president from seizing domestic production rather than just not authorizing him to do so. I'd also note and this sort of pushes this away from the category three lowest ebb to the category 2 where Jackson says things are determined by the imponderables of events, that there's a difference between Congress affirmatively acting, that is an acting statute, and Congress not doing something that the president asked to be done. Again. We had the taft-hartley act and The Selective Service Act in the steel seizure case. Here there's nothing. No appropriation, no authorization or no prohibition on building a wall. I suppose if they had a footnote to that, in the absence of an appropriation given Article 1 Section 9 maybe there is a Prohibition flowing from the Constitution rather than from congressional action, okay. But finally the strongest case for the president I think is that there's actually an authorization in this- what 2808, it says, 2808 says when the president declares a national Emergency heretofore unobligated funds become available to the president for where the armed forces are required for military construction projects. So I think the president's case is yeah, you've said I can do this and you've given me the money to do it in these- this pot of unobligated money, true you place some restrictions on it, but the presidents' lawyers will argue that the president's judgment that our forces are necessary and that this is military Construction ought to receive a great deal of deference. So I actually think this is mostly a category 1 situation.

Rosen: [00:24:19] Wonderful. Thank you for that very clear answer and I'm very glad to hear it especially because it allows me to ask Sai whether he agrees or not. Sai, which category would you put the president's action in if forced to choose?

Prakash: [00:24:33] Well, I think I think we need to know more about what statutes they're actually relying upon. There's also- there are other statutes as I mentioned. There's there's 10 USC 284 which is about drug intervention and Drug interdiction that allows the president to build among other things fences along the international border. There's also 33 USC 2293 reprogramming funds in a national emergency and dealing with civil Army Civil Works projects. So I think there are multiple statutes. If we're going to start from scratch and think about Youngstown what I'd say is I think if you take a look at the three categories both category 1 and Category 3 talk about the express or implied will of Congress and so I think it's possible for someone to look at what Congress has done in the past several years and say it's against the implied will of Congress for the president to expand more on a wall than Congress has specifically appropriated, notwithstanding this more General language, statutes that I just cited. So I don't think that Congressional disapproval has to be expressed contrary to what Mark is saying and you know to answer that question I think involves really you know parsing these statutes but also parsing the practices under them and then the final thing I'd say is that's the sort of beauty the indeterminacy of Jackson's categories. It's very difficult to say oftentimes when you're talking about a situation of seeming silence whether Congress has implicitly disapproved of something or not and there are cases where the court has said, you know, we think the Congress has implicitly approved of a practice where you know others have said we actually think it's implicit disapproval. So I'm thinking of the Dames and Moore V Regan case that arose during the Reagan Administration having to do with the Iranian U.S. Claims tribunal and the agreement between Iran and the United States or the Algiers Accords. The court said there was implicit approval on the part of Congress to allow the executive branch to settle International claims. But many scholars said that that was a mistake and that Congress that implicitly disapproved of the practice or at least had been silent and therefore it should have been Category 2. And so I think there's a wonderful indeterminacy to Jackson's three categories both with respect to how to characterize the congressional action in question and then as Mark points out what to do with it once you're in a particular category. None of those categories tell you whether the president wins or loses they just give you percentages, right? If you're in category one where Congress and the president are acting together Jackson predicts the president will likely win, not that he definitely will win. And if you're in category three Jackson predicts the president will lose but he doesn't say the president actually should or will lose and so, you know, I think a lot of this will turn on the judicial perception of the action in question, which will be colored more about- by the statutes and the stretches being made but also perhaps by the judges' perception of the president's motives.

Rosen: [00:27:48] Thanks so much for that. Mark we often Overlook Justice Hugo Black's majority opinion in Youngstown, but he found that Congress had refused to authorize the authority in question, but was that refusal in fact clearer than it is here? And what is the relevance of Black's majority opinion? If anything?

Tushnet: [00:28:16] Well again, I may have an idiosyncratic take on the opinion but my take on it is that Black is actually relying I think maybe explicitly, it's been a long time since I looked at the text really in detail, on Article 1 Section 9. I think his analysis is this: you've seized the steel mills, that creates an obligation on the United States to the steel mill owners for the taking of their property and there's no appropriation for that. And therefore you can't do it because it's a taking and Congress hasn't appropriated money for compensating for the taking. Again my reading of the current situation is that this pot of money in the unobligated funds account would allow compensation for the taking of property along the border to build the fence. So Black's analysis wouldn't in my view, Black's analysis wouldn't come into play.

Rosen: [00:29:41] Thank you for that. Before we leave Youngstown dear We the People listeners I want to emphasize the Jackson's one the most beautiful writers of the 20th century. His prose is such a pleasure to read and for a real treat and for extra credit on the podcast check out Jackson's book That Man an Insider's portrait of Franklin D Roosevelt Oxford published it in 2003. It's just an amazing intimate portrait of FDR written as beautifully as Jackson, wrote everything. Sai final thoughts on Youngstown and black's opinion if you think that there's any thing more to say and then I want to introduce this question of whether this Supreme Court might be uncomfortable with the broad delegation of authority to the president that the national Emergency act represents. This term the court is taking up a non delegation case called Gundy involving the national Sex Offenders Act and justice Neil Gorsuch and others have expressed concern that Congress is delegating too much power to the president. So is it possible that if this case got up to the Supreme Court that the court might question congress's ability to delegate all this power of the president?

Prakash: [00:30:52] Yeah, so first on black's opinion, I think black's opinion is- you know reflects the sort of textual nature of Justice black. What's weird about Youngstown is although he gets a majority of the justices to join it many of the justices who are nominally part of his opinion write separately and express opinions that seemed inconsistent with his approach to the case. And so even though he is writing the majority opinion it doesn't appear that Justices Frankfurter or even Jackson really agree with the framework. He's propounding and you know, I don't think- the basic question I think for application of Justice blacks framework here is how has Congress authorized the transfer of funds to help build a wall and you can't answer that just by reading Justice black's opinion, right? Because of course, you know, it's possible that Congress has authorized the president to transfer funds which takes us to your second question, which is about delegation and I think you're quite right that just some justices are quite interested in Reviving a stronger version of the non delegation Doctrine. Having said that I don't know if they are also willing to do so in the context of national Security that is to say if in fact there is a case for delegations of broad authority to the executive, it is strongest in the area of national Security as opposed to areas having to deal with the economy or regulation of the airwaves or regulation of election law. So it might be that the very people who are interested in Reviving The nondelegation Doctrine aren't as interested in in revising it in the areas of national Security.

Tushnet: [00:32:40] Many thanks for that. Mark your thoughts on the non delegation Doctrine or any skepticism on the part of the conservative Justices about the broad delegations of executive power, whether they might be uncomfortable with it and might be willing to roll it back?

Tushnet: [00:32:54] I think it might be valuable to here to distinguish between who the recipients of the delegated authority might be. There has been significant movement among call them constitutional conservatives to challenge delegations of authority from Congress to administrative agencies such as the FCC or the Environmental Protection Agency. I think it's- I don't think there's as much discussion in that domain of delegations of authority directly to the president or to the office of the president. Now I should say of the to my view three cases in which the court has invoked a non delegation Doctrine to involve delegations to private entities, one did involve a delegation directly to the present and the court said that was impermissible. But that was by these standards a long time ago. And to Sai's observations about the president's Authority in national Security matters and in particular national Security matters occurring in some sense outside the borders of the United States, a thought that much of the discussion of the delegation idea has accompanied an interest in unifying all the delegated power in the presidency itself and so again direct exercises of delegated authority by the president might be different in the view- in the eyes of people who have been worried about delegated authority.

Rosen: [00:35:17] Sai, there's another series of broad constitutional issues that might arise if the court would order to uphold the president's power to declare the emergency and redeploy the money, and that involves the question of eminent domain. In a recent piece on the Volokh conspiracy Ilya somin says that it would violate principles of eminent domain to try to seize the immense amounts of private land that would be required to build the wall and Gerald Dickinson who has written extensively about eminent domain says that at the time of the framing the federal government would ask the state governments to seize land, but would never presume to do it on its own. So how serious might the pushback from judges on the eminent domain point be?

Prakash: [00:36:08] I think the way to think about that Jeff is to first ask the basic question of whether the Congress has authorized the president to use eminent domain in this context or otherwise, and you know, I don't know of any statute that generally authorizes the president to seize private property, you know, so even if the president has statutory authority to build a fence and has Appropriations to construct it, to actually build it, I think there's a separate question of whether he could seize private land and built the fence on that land. It might well be that he could only build a fence on portions of land on the border that are already owned by the federal government. I think what the authors that you're citing are suggesting is that if you go back into the to the ancient past in the founding, this was an argument first made by Will boat, I believe the framers didn't think that the government, that the founding fathers or- the Framers didn't believe that the Congress had the General Authority needed to seize private land, that the takings Clause that's in the Bill of Rights didn't presume a general power to seize property. I'm not sure that that's right. I think- I don't know why you would include a restriction on the seizure of private property if you didn't believe that the federal government had private property in the first instance, but I think the more- sort of more the first question would be does the president have Authority Under statutes to seize private property before you even get into the question of whether justices are willing to revisit the established practice of assuming that the federal government has constitutional authority to seize private property so long as it pays just compensation. 

Rosen: [00:38:04] Mark your thoughts on the eminent domain question and whether courts might push back?

Tushnet: [00:38:13] First of all, I myself am not persuaded by the originalist argument that has been rattling around for a while in part because even on many Originalist views, the way we understand the Constitution's meaning today is shaped by practices over the intervening years and the practice of federal governmental taking of property with compensation goes back now a long way, it doesn't go back to the beginning clear but it goes back quite a long way. And so I think the Constitution as properly construed today does authorize the government to seize property with compensation. The second, the next question is again as Sai keeps insisting and properly so, whether statutes authorize this particular form of seizure and my instinct on this again without having looked in great detail at all the rate of possible statutes is that if- so, let's suppose the project is the construction of a military Barracks, clearly a military construction project. If in order to make that Barracks safe the government has to seize property surrounding it to build a fence around the barracks, I think that it's an either necessary or sensible implication from the authority to build the barracks that you have authority to seize and compensate these property and compensate for the stuff that is either necessary or appropriate for building the barracks. And so we're back in the original problem: is building a fence military Construction authorised by 2808 or under any of the other statutes that Sai's referred to?

Rosen: [00:40:46] Thank you for that and thank you both for a really careful and very Illuminating parsing of the complicated constitutional statutory and eminent domain questions. I want to step back now and just take a beat to note the obvious which is that some conservatives and Libertarians are expressing concern about the broad delegations of executive power that the court has upheld in the 20th century and if courts were to uphold this one there might be calls for reform to have Congress reassert its constitutional Authority and to rein in executive emergency power. Sai what kind of reforms are on the table? And which ones do you think might be most convincing?

Prakash: [00:41:33] Well, I- you know, it's hard to say what reforms the members of Congress are actually contemplating. I think right now the members of Congress are really just reacting to whatever the president is saying and tweeting and what he'll actually end up doing but I think one reform that doesn't quite deal with this situation, but would deal with many of the situations where the president is able to declare a national Emergency of various sorts and then thereby use executive- thereby use statutory Authority conferred by Congress is to say that the national Emergency Authority expires 60 days after Congress next meets thereby ensuring that it's temporary and thereby leaving the ultimate question to Congress that is to say rather than giving the president Authority that turns on his sole say so, his sole Declaration of a national Emergency. Congress can give him authority to deal with a problem in the short term and provide that you know that it lasts until Congress returns and maybe had 60 days there to give themselves some time to to wrap their heads around the issue, but that way it's not indefinite right, that way we don't have emergencies that last for years and we don't have situations where it's you know where the Declaration is really solely on the say-so of the president. I mean in effect it still would be but of course if Congress didn't agree with the Declaration it would be time-bound in a way that often is not true now. In other words, you know, if the president's able to use this Authority he's able to use it indefinitely right because there's no restriction, time restriction placed on his ability to transfer from funds from one account to another.

Rosen: [00:43:18] Thank you for that. Mark I'll ask you first, do you think reforms are necessary or do believe that broad executive Authority is consistent with your vision of the constitution for the reasons you began by describing? And then if Congress were to adopt reforms to rein in emergency executive power, which ones do you think might be worth considering?

Tushnet: [00:43:41] I think it's essentially impossible to describe in advance all the types of emergencies that might arise just because legislative imagination is limited and legislative time is limited. Think about any disaster science fiction movie where there's a Geo Storm or something like that. It's very hard to figure out or to get congress's attention to enact a statute that would specify well yes, you can declare it a national Emergency if there's a Geo Storm so substantively I think it's really hard to apply- to identify all the possible emergencies that there might be. The national emergencies act does try a quasi procedural mechanism. Turns out that under current law the mechanism is unconstitutional. Sai's suggestion of time-limited declarations is another procedural device. I am skeptical about whether that could work. The thing that immediately comes to mind is President declares an emergency which by this statute would expire after 60 days. After Congress meets Congress meets and is gridlocked on the problem, doesn't affirmatively do anything one way or the other and the President says well the problem still here, I'm going to declare a new emergency and I now have 60 more days to see if Congress can do something and so on. I'm just- these procedural mechanisms ultimately rest on a hopeful vision of how possible politicians would behave under the circumstances and I am not as or sufficiently hopeful to think that these procedural mechanisms would actually work. So my bottom line is not that I'm enthusiastic about the idea of expansive executive Authority. I am not but rather I think my position is that I'm resigned to the fact that we're extremely likely to have to live with a system in which the executive does have extremely expensive authority.

Rosen: [00:46:34] Well, thank you for that note of resigned pessimism, which is a bracing way to conclude this really extremely sophisticated and helpful discussion of the complexities of the statutory and constitutional questions. It's time now for closing arguments. So as intensely and succinctly as possible I will ask you to sum up for our wonderful and devoted and closely listening We the People listeners the following question: the president issues a Declaration of national Emergency to build the wall. Would that violate Federal statutes or the Constitution? And will begin with Sai.

Prakash: [00:47:14] Well, it's been great to be here with you and Mark, Jeff. I guess I would start by saying the jury is still out. I think the way to think about it is not to jump to a conclusion that he can or can't do it based on one's General views of the president or one's General views about a wall. I think it's a difficult statutory question as both Mark and I have emphasized and it turns on I think at least three statutes and I think it turns on how those statutes have been implemented. And you know, I think to answer that question you'd want to see the arguments being made by Administration lawyers. You want to see the practices, and so I think it's it's premature to say that he can do it, it's premature to say you can't. Which is not, your not kind of definitive answer that people, that many people will appreciate but I think it's the right answer.

Rosen: [00:48:09] Thank you very much for that and Mark the last word is to you. If the president were to issue a declaration of national Emergency to build a wall, would it violate Federal statutes or the Constitution?

Tushnet: [00:48:21] I would distinguish between two ways of answering that question. The first would be, would a court find that there was a violation of the statutes or the Constitution? On the first, would a court find a violation of the statute. I think it is a genuinely difficult question. My intuition / instinct or skepticism leads me to think that they would not find it to violate the statute. They find some way to find it statutorily authorized and even more strongly, I think they would find that the action if authorized was constitutionally permissible. The other way of thinking about it though is that it is up to We the People to decide whether the action is statutorily authorized or constitutionally permissible and they're- in another sense I'd invoke the phrase Sai introduced, I think the jury is out. That is if the president took this action there would be some sort of political response and that response might be a judgment of the people manifested in polls and ultimately in elections about- that the action was impermissible. I myself, I'm much more interested in that second kind of, that second path to thinking about whether something is constitutionally permissible or not than the judicial path, but again on both of them really. I think the jury would be out for quite a while. 

Rosen: [00:50:23] Thank you so much Sai Prakash and Mark Tushnet for a truly Illuminating discussion about a deeply complicated and Incredibly important constitutional and statutory question. That was a wonderfully appropriate call on We the People for We the People to make up our own minds about the constitutionality of central questions of our public life. We cannot do that unless we educate ourselves about the complexity of those questions and that is exactly what you Mark and Sai have helped us do in the highest tradition of we the people as Justice Brandeis said quoting Isaiah, come let us reason together. You have educated us and allowed us to be guided by reason in the process mark. Sai, Mark, thank you so much for joining.

Mark Tushnet: [00:51:08] You're welcome.

Sai Prakash: [00:51:09] Thanks guys.

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Podcast: 2018: A Constitutional Year in Review

Jeffrey Rosen: [00:00:02] I'm Jeffrey Rosen, president and CEO of the National Constitution Center, and welcome to We the People, a weekly show of constitutional debate. The National Constitution Center is a nonpartisan nonprofit chartered by Congress to increase awareness and understanding of the constitution among the American people. It's been such an extraordinary year for constitutional learning and such a privilege to learn with all of you, dear We the People listeners, and to round up the year, I'm so honored to be joined by two of America's greatest constitutional commentators, friends of the podcast who will discuss with me the constitutional highlights of the year and help us distill some of the learning that we've done together. Emily Bazelon is a staff writer at The New York Times Magazine and Truman Capote Fellow for creative writing and law at Yale Law School. She is co-host of Slate's weekly podcast Political Gabfest. Emily thank you so much for joining. And Josh Blackman is Professor of Law at the South Texas College of Law in Houston and an adjunct scholar at the Cato Institute. He is founder and president of the Harlan Institute and blogs at Josh Blackman dot com. Josh It is wonderful to have you back. Let us jump right in with the Affordable Care Act. Recently a federal judge in Texas ruled that the entire Affordable Care Act is unconstitutional. And Josh you have written extensively about the case. Explain to us on what grounds Judge O'Connor ruled that the mandate in the Affordable Care Act could no longer be defended as a tax, why he thought that that provision was not severable, in other words that it couldn't be cut out of the law while saving the rest of it, why he thought that there were standing to bring the objection and whether or not you think his decision was correct?

Josh Blackman: [00:01:57] Well Jeff thanks for having me again. I've been writing about Obamacare now for nearly eight years. At times I feel like it's Groundhog Day the movie where the same script keeps repeating in slightly different contexts. So this most recent case picks up where the 2012 Obamacare decision left off. As I'm sure your listeners know, the Obama administration defended the Affordable Care Act. They said that this law, if it can't be upheld as regulation in interstate commerce, the court should treat the individual mandate to buy insurance as merely a tax on those uninsured. In other words there is no mandate. Chief Justice Roberts thought that that was not the best reading of the statute. But he was willing to read the statute that way because of a few factors, one of which is that the mandate, I'm sorry the penalty, that enforces the mandate, was in many regards similar to a tax. It raised revenue, you put it on your tax return, et cetera. That was the basis of the so-called saving construction. So in other words, as long as the penalty raised revenue, the Court said this can be saved. Fast forward now till 2017 and Republicans passed their tax cut bill. That bill reduced the penalty to zero dollars. It didn't touch any other aspect of the ACA. It merely dropped the penalty down to zero dollars. While this was going on I thought to myself huh, who's going to challenge Obamacare as unconstitutional? And it turned out to be the Texas attorney general and several other states. They argue that because the mandate has now dropped down to absorb the penalty, it dropped down to zero, the mandate can only be challenged. So they brought a suit on behalf of a number of states as well as several individuals. They claim that the mandate can no longer be saved because the mandate is unconstitutional.We get into what's called severability. What other parts have to be chopped out? In 2012 the Obama administration took the position that if the mandate falls, then what also must fall what are called guaranteed issue and community rating. I'll just say GI and CR to make it easier. G.I. and C.R. are provisions that protect people with pre-existing conditions. These are very important provisions that are part of the law. So the Obama administration argued that a mandate goes, the pre-existing condition protections also must go. OK so now Attorney General Sessions said, I have the same position that the mandate goes, you must also set aside the G.I. and C.R. OK that's the setup. Texas brought this lawsuit last week. Judge Reed O'Connor and the Northern District of Texas issued a partial decision that's not a final decision, but a partial decision, that the mandate is no longer constitutional. He agreed with Sessions; the guaranteed issue community rating provisions must go. But then he went a step further and said that the entire ACA must be set aside. And he relied heavily on the joint dissent from NFIB by Justices Scalia, Kennedy, Thomas, Alito who argue that the mandate goes, the entire law goes. So this decision although preliminary found that the entire Obamacare law had to go. Now Jeff you asked about standing. Standing is always the question right. People can't just go to court because they're unhappy; they need to have what's called an injury for purposes of Article III of the Constitution. Judge O'Connor didn't consider the injury to the states; it wasn't part of its opinion. He focused entirely on the injury of the individual plaintiffs and the plaintiffs argue that they are now subject to a legal mandate and they do not want to be bound by that mandate. And on that basis Judge O'Connor found standing. Now, I am probably one of the few people, the only people, who think that the decision was mostly correct. Not entirely but mostly correct. I do think that the individual mandate survived the tax cut bill. I do think that if the mandate goes then the guaranteed issue community rating provisions must fall, although where I part company is I think you can save other parts of the law. I don't think the remedy has to be quite so sweeping. But to always give fair and balance, the other side argues that because you now have a mandate that's not enforced, it's toothless, and because here's a toothless mandate there's nothing to challenge. And because there's nothing to challenge there's no injury and nothing that the court can remedy. The other side argues, which I think is mostly correct, that the intent that matters is the intent of Congress in 2017, not the intent of Congress in 2010. I think it's more complicated but the argument goes that in 2017 Congress didn't want to kill the rest of Obamacare, so therefore the decision is completely out of whack. My one note before I hand it off to Emily is I would encourage people to not underestimate these sorts of cases. There's a long history of people laughing at Obamacare challenges that gain legs as they go up the ladder. So I think it's important to, as we are now, talk about these things and keeping them in mind.

Rosen: [00:06:47] Thank you very much for that helpful summary, for presenting both sides, for making clear that you believe that indeed the mandate is now unconstitutional because it can't be defended as a tax, and that some but not all of the law is severable. Emily, Josh noted that many people, indeed most commentators, think that there's no standing to challenge the alleged injury because there's no longer any penalty for not paying the mandate, and also that Congress intended this mandate to be severable when it wanted re passed the law in 2017. What do you think on both of those points? And then you can take us ahead to imagine what might happen at the 5th Circuit and might the Supreme Court pick the case and if it did, what might the Supreme Court do with it?

Emily Bazelon: [00:07:31] I think the reason that commentators all over the political spectrum are skeptical about Judge O'Connor's position is that it seems to fly in the face of some of the rulings that the Supreme Court made in the previous, or I guess we should say maybe the first Supreme Court Obamacare ruling. So now we're talking about Chief Justice Roberts' opinion for the majority and you know this- the thing about standing as Josh of course explained is that you have to have injury, something that courts can remedy. And so it's hard to see if there is no penalty, what the injury is, like why anyone would have standing to challenge having to pay something that has been zeroed out. I think that is like a place where a lot of commentators have started parting company with Judge O'Connor. And then this question of severability has been the one that I think has really made people feel like this is kind of a wildly off base judicial decision. And again I'm not just talking about fans of Obamacare as a policy matter. I'm also talking about law professors like Jonathan Adler and political commentators like Philip Klein at the Washington Examiner who don't like Obamacare and Adler is an architect of some of the earlier challenges that Josh referred to, that seemed to be kind of wild or people laughed off and then turned out to have four votes at the Supreme Court or at least three votes. So when you look at the severability question, O'Connor's analysis was all about Congress's understanding in 2010. But of course we have this amended statute and so it seems very odd that O'Connor is effectively looking at the 2010 Congress instead of the amended statute in 2017 as its baseline. You would expect that it would be the most recent version of Obamacare that he was grappling with and he really just sort of failed to do that. And so you know that makes it really hard to understand why this mandate which is now zero can't be severed from the rest of the law. And I guess the final thing I'll say here is I feel like there's this weird irony in this which is that it was sort of conservative and liberal conventional wonk wisdom that the individual mandate was really crucial to Obamacare functioning, right? This was supposed to be the thing that forced people to sign up for health insurance and pay for it it was going to keep the health care exchanges on track. It has turned out to be much less important than everybody thought or at least thus it seems so far. And so we have this funny kind of switch here where challengers who previously were railing against the individual mandate, now it's zero but like somehow it's the keystone of the law at least in the view of Judge O'Connor and the plaintiffs here, all these states attorney general and then the Justice Department itself.

Rosen: [00:10:29] Many thanks for that. Josh, respond to those points and also to the ironies. Conservatives have been among the most passionate opponents of standing for symbolic injuries. There are a series of environmental cases that law students learn from the 70s where the Court says no you can't object to environmental injuries just because you don't like it in theory, you have to have a practical effect on yourself, and conservatives led by Justice Thomas have also been much in favor of increasing severability and if a law is constitutionally flawed, chopping out that part and leaving the rest. So what should conservatives think of O'Connor's ruling?

Blackman: [00:11:12] Well let me answer the question in a few parts. First, Chief Justice Roberts' opinion I think is being wildly misread. The challengers in NFIB vs. Sebelius were challenging the mandate and not the penalty. And they argued strenuously that it was the mandate that was unconstitutional standing by itself. These were separate provisions. The Supreme Court was only willing to consider the penalty as part of the situation because of the saving construction. So I think what the position I'm advocating follows from a careful reading of Chief Justice Roberts' opinion, I think most of the people who argue to the contrary are simply assuming that Roberts thought that the mandate and the penalty were one. Roberts only got there because of the saving construction. On the issue of standing, this is always I think an open ended issue. I agree. There is not a lot of precedent on this point of how a legal mandate that's not enforced can give rise to standing. I wrote about this on the Volokh conspiracy. I think likewise there aren't many federal laws that command you to do something and if you disobey they don't do anything about it. It's somewhat of a strange provision but that's the sort of strange provision we have from the Affordable Care Act where this legal obligation was imposed and the Obama administration said, we have this obligation, if you don't comply you know nothing happens to you. So I think it's a fairly strange statute the way it was crafted and it goes back to the history of the ACA. Now with respect to severability. This is a very tough topic. Justice Thomas wrote a concurring opinion in a case called Murphy vs. NCAA. This was about sports gambling. And Justice Thomas suggested that the court should use a severability doctrine more narrowly. Specifically the court would only be able to declare unconstitutional portions of a statute that the plaintiffs would have standing to challenge. So let's say a statute has five parts. The plaintiff can challenge Part 1, have standing to challenge Part 1. The court would not have jurisdiction to set aside parts 2 through 5 because there's no standing. So here the plaintiffs haven't even shown that they would have standing to set aside the guaranteed issue community rating because they don't have standing to get there. I think this issue will percolate above. I can see in the end, and this would not be bad from my perspective, where the Supreme Court finds that they declare the mandate unconstitutional and nothing else and stops there, and I think that will still be a victory for the separation powers because it would mean that John Roberts' saving construction was an actual construction of law and not an ad hoc exception of judicial statesmanship.

Rosen: [00:14:01] Thank you for that. Emily last word on the ACA case. Channel Chief Justice Roberts if you will and take us through his thoughts. Would he likely believe that the mandate which he held as a tax is now an unconstitutional exceeding of Congress's commerce power now that the penalty has been removed or not, and then what does he do about avoiding entangling the Supreme Court in this political morass? Does he find no standing, does he sever? How does he try to persuade his other justices? And most importantly how does he preserve something he's very concerned about which is the institutional legitimacy of the Supreme Court?

Bazelon: [00:14:43] I mean to me it's very challenging to see why eliminating the tax makes the mandate unconstitutional. It would seem to me to work in the other way, right? Like if the problem is that this is a penalty then removing it would not accomplish what the plaintiffs want. I mean I suppose the idea here is that if it's zeroed out then it's not a tax anymore. And so that you know Roberts opinion depends on Congress's powers to tax but it just feels to me like this is the kind of legalistic debate that is not at all going to be satisfying to the public. If Chief Justice Roberts, in the very unlikely event in my view that he were to be seen as switching sides here, it's going to seem like a real head scratcher politically speaking: wait a second. When Obamacare seemed more vulnerable, when it was less popular also, you were willing to uphold it. But now this individual mandate, like the bad part that people objected to, is gone, but suddenly it's unconstitutional. I think that is going to be a tough row to hoe and the distinction between a penalty and a mandate just seems like more semantic than real, in a way that I think would would probably give Chief Justice Roberts pause and saying that, I don't mean to suggest that I think he's cynically just thinking about this in political terms. But you're right of course Jeff, he cares a great deal about the institutional legitimacy of the Supreme Court and it would seem like a strange choice to squander it going in a direction that has really attracted scorn across the ideological spectrum among legal observers, in favor of striking down a law that has gotten garnered much more public support in the time that it's been on the books. It just seems like a total no win for him. I cannot imagine why he would want to go out on that limb.

Rosen: [00:16:37] Thank you so much for that to both of you, and for a thoughtful airing of the Affordable Care Act case. Let us turn now to the Emoluments Clause lawsuits and dear We the People listeners please read both the foreign Emoluments Clause, Article I Section 9, and the domestic Emoluments Clause Article II Section 1. There are two Emoluments Clause lawsuits working through the courts, one filed by the state attorneys general of D.C. and Maryland and the other by Democrats in Congress. The state AGs lawsuits was filed in June 2017 and alleges that the president has violated both the foreign and domestic emoluments clauses and the congressional Democrats lawsuit was filed in late September 2018, and U.S. District Judge Emmet Sullivan has said lawmakers do have standing to sue the president. They allege he violated the Foreign Emoluments Clause as his hotels and other establishments around the world profit from spending and favors by foreign governments including the Saudi government. Josh lots to say here, once again, in the Professor Kingsfield spirit, give us the broad, most salient facts of both cases. What are the allegations? And then you've written a really long and interesting explainer at Reason: Who is right about the Emoluments Clause lawsuits? You wrote it with Seth Barrett Tillman who co-wrote the Emoluments Clause explainer on the interactive constitution with Zephyr Teachout, and you argue there that President Washington's land purchases are precedents suggesting that President Trump has not violated the emoluments clauses, so help us understand what we should be looking for in these lawsuits.

Blackman: [00:18:20] Well thanks Jeff and for disclosure I have filed several amicus briefs on behalf of Professor Tillman throughout the course this litigation. Almost immediately after President Trump took the oath of office he was sued in different courts by groups alleging violations of the foreign and domestic emoluments clauses. The foreign Emoluments Clause prevents certain officials from receiving what are called emoluments from foreign nations. So of course the question is who does it apply to and what is an emolument? The other clause, the domestic Emoluments Clause, applies only to the president and says he can't receive additional emoluments, whatever that is, from states. Now this litigation has been proceeding pretty slowly actually. It's been almost two years and we're still not at any sort of final decision from a district court. One litigation was brought in the Southern District of New York by a number of businesses who claim that they were injured by President Trump's- they were injured because President Trump's businesses had unlawfully competed. That is, they were getting an advantage because foreign dignitaries want to stay at his hotels rather than their properties. So the Southern District of New York threw the case out. Another case was brought in the district court of Maryland by the Maryland and D.C. attorneys general, and they argued that properties they owned, hotels in Maryland and in D.C., were again being injured by Trump businesses. The judge in that case allowed the case to go forward. The third case was brought by I think almost 200 members of Congress in the House and Senate all democratic and they argue that they were injured because President Trump failed to submit any foreign gifts he received for approval before taking them. The judge in that case also held that there was standing to go forward. We have some late breaking news this week that DOJ finally filed what's called a mandamus petition to the 4th Circuit where they asked a court of appeals in Richmond, Virginia to put on hold any discovery in the Maryland case. So these cases are proceeding pretty slowly but they will be up to the court of appeals by now. We're just getting there for the first instance in the 4th Circuit. Now again there's a couple of big legal issues right? What is an emolument? There's a broad and a narrow definition. The broader definition is basically anything of value. So the president receives any gift, from a state or otherwise, he is then violating the domestic emoluments clause. We argue in our brief, that's me and Professor Seth Barrett Tillman in Ireland, that the definition is more narrow; it refers to a payments made in relation to some sort of a ploy or some sort of relationship. So far the judge in Maryland rejected our reading. We think our reading is buttressed by the practices of President Washington, President Jefferson and other early presidents in our founding. But Judge Messitte addressed our evidence and he rejected it. I think there is a lot to be lacking in his in his evidence; he missed some stuff we wrote about it. I won't argue that in a podcast. The other issue is one of, who does the clause apply to? Now suddenly it's very important whether the foreign emoluments clause applies to the president but Professor Seth Barrett Tillman has taken a position for more than a decade I think, that the language in the clause, those who hold office under the United States, does not apply to the president. And we think, again, this is supported by the practices of Washington, Jefferson, other early presidents, supported by British parliamentary practice, and supported by docuements from Alexander Hamilton and others. I suppose like with the Obamacare case I'm somewhat on a limb here where people don't agree with me. But I'm used to it. I think we have a lot of good evidence on our side. And the third question with the Emoluments Clause is who has standing? So the judge in Maryland found that the states have standing to challenge it because their businesses are affected. The judge in DC found that members of Congress have standing to challenge it. Neither judge accepted the argument is this a political question that's up to the Senate to either accept or reject foreign emoluments so the court should stay out. I think this issue may actually reach the Supreme Court in a fairly hasty manner in the event that the 4th Circuit doesn't put discovery on hold. We've seen lots of discovery disputes about Cabinet officials. Here we might actually discover disputes about the president himself. I think that might be a bridge too far and I think the 4th Circuit should intervene; if they don't, SCOTUS will.

Rosen: [00:22:49] Thank you so much for that. And again for so clearly setting out the issues. Emily tell our listeners, how the Supreme Court might approach these lawsuits and maybe begin with this question of whether or not the clause applies to the president. On our joint explainer, Zephyr Teachout and Seth Barrett Tillman acknowledge that most recent presidents have assumed that the Emoluments Clause applies to them. President Obama's Office of Legal Counsel assumed as much when he accepted the Nobel Peace Prize but said that that wasn't an emolument. But Josh and Seth Barrett Tillman are now saying that the text, President Washington's practice, statements by Alexander Hamilton all suggest the clause doesn't apply to the president. So what's the weight of the evidence in your view and more broadly how do you think these suits will fare as they wind their way up?

Bazelon: [00:23:40] Well I think it's important to take a moment to think about what the framers were up to when they put this clause into the Constitution and I would argue that their concern was protecting against corruption, especially corruption from foreign governments and foreign agents. And so what you've seen historically are presidents being eager to get far far away from violating the Emoluments Clause right? I mean one of the reasons this is a fairly novel area of law is that modern day and even 19th century presidents for the most part were trying really hard to make sure there was no appearance of corruption, no whiff of accepting large gifts or benefits from foreigners. And so you know you invoked the precedent from Obama's Nobel Peace Prize. What you're seeing there is Obama being really clear. I assume this applies to me and I want to show that I'm not getting anywhere near violating this clause. And I think one reason we haven't needed a whole lot of legal rulings on this issue is that it would seem to be politically expedient and important for presidents to show that they're not corrupt that they're not being influenced. I think this is a norm that President Trump has really eroded or just outright broken. And so what we're seeing are these local businesses and also members of Congress concerned about the profits his hotels are making. And we have lots of reports of foreigners choosing to stay in the Trump hotels because they think they're currying favor, paying very high rates because of that, it would seem to be exactly the kind of corruption that the framers would have been concerned about. And so I think this very narrow reading of the emoluments clause that Josh is advocating for and what he correctly says is the kind of minority position isn't such a good idea, just from the point of view of protecting the country against a president who is willing to dabble in something that looks like corruption. And I think that's why you're seeing from these district court judges a sense that these lawsuits need to proceed. The Trump Organization has said that they're going to donate the proceeds of any profits that they make, but there's no transparency into that process. We have no idea how they're doing that if they are at all. And so I think again we just have this problem of influence that may be being exercised in a way that could affect Trump's decisions. And we just don't really know what's happening you know and to state the obvious, Trump could have prevented all of this by setting up a blind trust, truly divesting himself from his own businesses. But he's chosen not to do that. In terms of what will happen when the case goes to the Supreme Court. I mean because there is so little legal precedent, I don't think it's entirely clear. It's one of those rare areas of constitutional law where the court would be writing on a relatively blank slate and so we would be able to see kind of in real time this analysis takes shape, and there would be all kinds of great stuff, historical references in the opinion to you know some Arabian horses that a 19th century president got in trouble for accepting, these kind of arcane precedents because as we are saying, this just isn't a question that's come up in the modern day presidency in a clear way.

Rosen: [00:27:10] Many thanks for that. Josh this is such an interesting case and we're so lucky to have both of you. Why don't we take one more beat on it? As Emily has said it's a pretty open question and there's not a lot of case law. And regardless of the original understanding, whether you and Seth Tillman are correct about it, Professor Tillman acknowledges with Zephyr Teachout that subsequent presidents from Andrew Jackson onward in similar circumstances have sought congressional consent to accept an emolument. So why don't you just give us your arguments about why you believe that the president's practices at his hotels do not constitute the kind of corruption that the framers were concerned about preventing and give it your best shot for why you think that the narrow ruling should be accepted.

Blackman: [00:27:57] Well Jeff the premise of your question is I think a misnomer. I think President Trump's business practices are awful. I do think they do give rise to corruption and we've actually said as much in our brief; if the Senate wants to impeach him for it, they can if they think it's bribery. But the question for us is do the courts have a license to use a clause of the constitution to stop it from doing this? And there I think the weight of historical evidence is not. We're not only talking here about original public meaning, the phrase an officer of the United States. We have practice from the earliest of presidents. George Washington who was an icon, who helped define our Constitution, from Hamilton, from Madison, Jefferson other people. We have two streams of authority, those from the earlier founding and people from Jackson later. I think given those two streams of authority, the earlier precedents trump. And let me just add one more point. If we had instances where presidents were actually submitting emoluments to Congress for approval I might change my opinion, but Jackson never sought approval to accept emoluments. He basically declined the gifts and lots of presidents did as well. That's only one incident where a president submitted an emolument to Congress was a former president. So we didn't even have this separation of powers clash where the branches interact. This is all basically a series of declining gifts and a few executive branch memorandum. I will take my evidence from Washington and his contemporaries over some statements from Andrew Jackson any day.

Rosen: [00:29:23] Thank you for that and Emily if you were making the argument on the other side, which corrupt practices in particular do you think most trigger the foreign and domestic clauses? There's a good explainer in the New York Times on December 17th which lists a series of alleged violations from Kuwait spending thousands of dollars at the Trump International Hotel to the kingdom of Saudi Arabia's participation in Trump towers around the world so what- which facts most trouble you and do you think are most constitutionally problematic?

Bazelon: [00:29:55] I mean why do I have to choose? I guess what bothers me broadly speaking is the idea that foreigners are choosing to pad the coffers of the Trump Organization in hopes of creating favor with the president and that we have no idea whether there is influence over our foreign policy as a result of the choices they're making. So I don't really care whether they're staying in the Trump Organization's hotels or what exactly they're buying. I think that's the dynamic that is a problem here.

Rosen: [00:31:03] We turn now to the census. And in November a trial began in lower Manhattan charging commerce secretary Wilbur Ross who is the head of the Census Bureau with fatally undermining the accuracy of the 2020 count by inserting an eleventh question into the census: Is this person a citizen of the United States? There is a constitutional mandate of an actual enumeration every ten years. And there is a constitutional challenge to the secretary's decision to include this question. Josh can you explain for us what the facts of this case are and what is the nature of the constitutional challenges?

Blackman: [00:31:46] Well thanks Jeff. So for a number of years the Commerce Department has been operating the census and at times they've asked certain sections of the respondents whether they are a citizen but that's never been asked of all citizens for some time. The Trump administration moved to add a question a single question: Are you a U.S. citizen? The reason why the government said they did this at least in court is that it's necessary to help comply with the Voting Rights Act. That is, the government needs to know who's a citizen and who's not to help administer various voting laws. A number of states have challenged the legality of this decision. They argue that the true intent is to actually deter immigrants who are not citizens from filling out the census and doing so would actually decrease the representation of mostly urban, high immigrant populations. Now were this a routine and mundane administrative law challenge it probably wouldn't go anywhere. But the plaintiffs and the states advance evidence that people in the White House, think Steve Bannon and others, may have been nudging, if I may, the executive branch to include this citizenship question and a district court actually found that the motivation given about the Voting Rights Act was not the true motivation; that was merely what's called a pretext; it's basically a cover or a smokescreen. And therefore the case will go forward. The reason why the census case got very hot is that the plaintiffs, the states wanted to put under an oath for depositions high ranking people in the government. This included basically senior officials in the census department as well as the secretary of commerce Ross. And this process triggered a never ending volley with the Supreme Court where the U.S. solicitor general, the top lawyer in the U.S. government, filed a petition to petition the Supreme Court, asking it to stop the discovery. And when all was said and done the court allowed the deposition of the high ranking census official to go forward. But the Court blocked the deposition of the commerce secretary and then the Court did something strange where they actually granted certiorari, granted review before the case was decided. So the judge in New York hasn't issued a decision yet; it's basically waiting and the Supreme Court put the case on the docket for the spring. So we're in a weird place where we're actually going to have a SCOTUS argument before the trial court has made a decision on this discovery matter, which is all very unorthodox, but I would also add it's unorthodox to issue a deposition of a senior cabinet official. Usually they can get a lower level subordinate. But here the states say we need the top gun, right, the head cheese to figure out if this intent was accurate about depriving aliens of the rights under the census. So this is a very unorthodox case but most cases we're talking about this year seem to be quite unorthodox.

Rosen: [00:34:52] Thank you very much for that. Emily you wrote an absolutely superb piece in The New York Times on November 28: In Donald Trump's census, who counts? We the People listeners I urge you to read it because it's both a great history of the inclusion of citizenship or not on the census as well as a discussion of the legal merits of this case but distill for us some of that wisdom, Emily, if you will, and tell us both what the debate is about whether or not external evidence of alleged bias should be; in the travel ban case the Supreme Court said the president's tweets didn't count and we should evaluate an action on its face. Here there are some e-mails that were released between Ross and Steve Bannon that challengers argue show an illicit motive. So how is the Supreme Court evaluating whether or not we should look to the tweets and e-mails and then more broadly, how does this case fit into the history of citizenship in the census?

Bazelon: [00:35:54] Well thank you for plugging my piece. I appreciate that especially because I didn't really know very much at all about the census before I started working on this and I am now passionately devoted to the proposition that it is a pillar of American democracy. And we take it for granted at our peril. And I say that because we have had an actual enumeration, an actual counting of the people in the United States since 1790. We do it every ten years and it's the basis for allocating all of the federal tax money that the government collects. And then it also is the basis for apportionment, for how we decide how to allocate political representation in the House of Representatives and also in most state legislatures. So it's just really important and really easy to take for granted at the same time. This lawsuit, as Josh was saying, it is unorthodox and I would argue that it's unorthodox in ways that show how the Trump administration is kind of pushing the courts into these uneasy positions. One example of that are these multiple petitions the Justice Department has filed to try to stay and just prevent the litigation from going forward, where at this point, this kind of latest few rounds, were just about preventing a district court ruling before the Supreme Court hears one part of the case involving the evidentiary record in February, and also this goes back to the Emoluments Clause you know we were talking about this writ of mandamus, this kind of extraordinary relief that the Justice Department is asking to prevent the plaintiffs in the emoluments cases from learning anything about Trump's- the Trump Organization's profits. And again we just see the Justice Department going to extraordinary lengths procedurally as well as substantively to kind of try to stop these lawsuits from playing out as they normally would. So here the reason that Judge Furman, the district court judge, ordered these depositions of the former chief of the Civil Rights Division of the Justice Department John Gore and Wilbur Ross the commerce secretary is that the intent, the reason that Wilbur Ross gave for adding the citizenship question, is at the heart of the lawsuit. There is both a claim under the Administrative Procedures Act and the standard there is well was the government's action arbitrary and capricious? And usually it's easy for the government to get across this bar right because the government has some rationale for what it's doing that just makes sense in a basic way; you can agree or disagree but they have a bunch of reasons they give that check out; in this case what Wilbur Ross testified to Congress last March was that he went ahead with the citizenship question solely because the Justice Department initiated a request for the purposes of enforcing the Voting Rights Act. And all of that has just unraveled in the course of this litigation. It turned out that Ross was repeatedly bugging the Justice Department to make this request. Ross did that after meeting with Steve Bannon while he was consulting with Kris Kobach who was the secretary of state in Kansas at the time, someone who has been very instrumental in kind of promoting the myth that voter fraud is widespread. And so we have this sort of opposite dynamic here in terms of Ross actually initiating the request and then the idea that this data was necessary to enforce the Voting Rights Act. That was hard to swallow from the start. In 53 years the Justice Department had never bade a request for this kind of data from the Census Bureau. And the government couldn't identify a single voting rights case that it needed the data for. But the real problem is that when John Gore gave a deposition he was asked, is this data necessary to enforce the Voting Rights Act? And he said no. So when the Supreme Court blocked Ross's deposition he made it impossible to understand what exactly Wilbur Ross was thinking. We know that his proffered rationale has- wasn't true but we don't know what his real reason was. And so to me the kind of big question in this litigation, whenever it gets the Supreme Court, is can the government make a huge change to a vital government institution that goes against the advice of like all the career professionals who work at the Census Bureau? In this case there are lots of reasons to suspect that adding the citizenship question will reduce the rate of response, make it much harder to get an accurate count. Can the government do all that damage without ever giving a legitimate reason that holds up in court to explain why? And if the government is allowed to go forward in that context what does that say about the naked exercise of government power? Often we see conservatives objecting to administrative agencies doing things that seem like you know they're kind of making up law or they're making up reasons for doing- from taking big steps. And it would seem that that's exactly what was going on here although it's really hard to tell because Ross' decision making remains a black box.

Rosen: [00:41:05] Thank you for that extremely illuminating intervention. We can hear how engaged you are by this crucial question and I do urge We the People listeners to read Emily's piece. Josh in the same spirit you're arguing before the Supreme Court, what is the essential legal issue that the census case is likely to raise and given the back and forth we already saw about the stay, is it the question of whether we should look at tweets and e-mails that's likely to be most salient and how might the Supreme Court decide it?

Blackman: [00:41:38] Well I don't have a dog in this fight unlike all the usual topics I talk about. So I don't have quite as much passion as my friend Emily does. But if I were the government lawyer for this case I'd argue that courts should not be in the business of second guessing and scrutinizing the intentions of administration officials based on external sources. We saw this a little in the travel ban although I think that really is largely limited to the president. But the court seemed to suggest that you have some sort of presumption of regularity for government officials. Now the Census might be one of these cases where that presumption is rebutted by record evidence in which case a deposition may be the only way to get the true state of mind of the executive branch official. I think there are some justiciable problems of whether this case can go forward under the administrative procedure act. But I think the court is really, the fact that they took this case at an early juncture tells me that there are at least four maybe five people who think that lower courts screwed up. If a majority of the court thought that you know the lower court was doing just fine they could've denied the petition and moved on with their lives. So it takes four votes for certiorari. They also granted a partial stay with respect to the Commerce Director. So it's possible that we may see a decision saying district courts you guys need to back off and let the government do its job and don't scrutinize every little thing they do.

Rosen: [00:43:08] Emily your response to Josh's claim of four or five justices may think the lower court's erred, and if the court were to hear it how might they come down on the question of whether the tweets and emails show discriminatory intent?

Bazelon: [00:43:23] So I don't think we're actually talking about tweets and emails this time because we have Ross's emails in the administrative record and I don't think anyone argues that that isn't part of the body of evidence the district court should be looking at; the question the Supreme Court granted cert about was Judge Furman's order for Ross and John Gore to be deposed. And when- so far what we know about the court's thinking here which is quite partial is that there is a split on the conservative wing of the court. So we've seen justice Gorsuch and Justice Thomas argue that Gore should not have been deposed in the case. And we've seen Gorsuch and Thomas and Alito argue that the trial should have been stayed, should have not happened. That trial was scheduled for the day before the November election. And so Kavanaugh and Roberts did not join with their fellow conservatives in preventing the trial from happening at all or from blocking Gore's deposition. I wonder if the Supreme Court granted cert when there was a lot of concern about these depositions and whether Judge Furman's opinion which may not really rely on the depositions very much at all will reassure the court. And if it's possible that this particular grant of certiorari will actually be taken back, that move the court can make where they decide that cert was improvidently granted; I'm sure the Supreme Court will want to weigh in about the census in the longer run. But as Josh was suggesting it's just a really strange idea that the court is already prepared to look at this question of what evidence the district should consider before the district court even rules. And if Judge Furman doesn't heavily rely on these depositions then what's the point of reviewing that question. Why wouldn't the court wait until the district court has ruled and the second circuit, the federal court of appeals that's relevant here, also makes that ruling. I think the Justice Department has been very eager to head off those lower court rulings; from the Trump administration's point of view would be much better to have the Supreme Court without any fact finding by the district court without opinions that could go against the Trump administration just decide the case sort of out of thin air. But that's not how American civil procedure in the federal courts normally works. And so I wonder if the Supreme Court will back off and wait a little longer to review this case in the end; I'm not sure about that but that's one possibility.

Rosen: [00:45:56] Thank you very much for that. Josh our next topic is Justice Kavanaugh's early rulings; recently he joined Chief Justice Roberts and the liberals on the court in deciding that the court would stay out of a legal fight over efforts to block Medicaid funding to Planned Parenthood. Many observers said that this was evidence that he might be inclined to join Chief Justice Roberts and the liberals in keeping the court out of fights that might threaten its institutional legitimacy. What do you make of the Planned Parenthood ruling and of any other tea leaves that you can read from Justice Kavanaugh's first months on the Supreme Court?

Blackman: [00:46:38] Well thanks Jeff. At the threshold let's say that it's really early. I don't think Justice Kavanaugh's written an opinion yet; he's only made a few preliminary decisions on cert grants and I really caution people not to read too much into it. But that's what we do for a living so I'll do it. We do have some tea leaves. And Jeff I think that were I to peg who Kavanaugh's most similar to it's not Alito it's not Gorsuch it's not Thomas but it's your favorite, your your BFF, John Roberts, and I think that Justice Kavanaugh may have a similar streak of institutionalism if I can say it, to the Supreme Court and why it's important to think about its legacy, as does Chief Justice Roberts. During his confirmation hearing before the other stuff started, he was very consistent on discussing but stare decisis. And In fact in a recent case he said that stare decisis is part of the original meaning of the Constitution. I can argue about that. What exactly that means. But I think he has a strong reticence which is why the Democrats opposition to Kavanaugh before the other stuff arose always struck me as bizarre. He was the most moderate member and the least dangerous person on the trump list by far in terms what the progressives care about. But you know he's here and I think that we'll have to wait and see. The significance the Planned Parenthood decision you referenced is that Thomas, Alito and Gorsuch were willing to call out their new colleague and say hey Brett you're confirmed now. Get on with the program. You know that could have been handled internally; they could have granted cert; they only needed one more vote for certiorari. But by putting their name on that, three names, it was publically signaling that they are not happy with their new colleague and like it or not they're not stuck with him for many many years to come.

Rosen: [00:48:38] Thank you for that. Emily, your thoughts on Justice Kavanaugh's joining of Chief Justice Roberts in the Planned Parenthood case, whether he's more likely to be like the chief or not, and on his early months on the Supreme Court.

Bazelon: [00:48:51] I mean I agree with Joshua that it's too soon to tell. I would not call him a moderate based on his past record in any way shape or form and I think that it's an interesting question whether the more kind of extreme right wing rhetoric and positions that we've seen Alito and Thomas and to some extent Gorsuch take are worse for progressives or whether that kind of more reasonable seeming rhetoric that Chief Justice Roberts has deployed is worse for progressive causes. I just don't think we know the answer to that yet but I think we're going to find out because now we have these five solid Supreme Court conservative votes. And so we may have a long period of watching exactly these tensions play out and these questions of whether you're better off mounting a kind of nice sounding stealth attack on causes that progressives care about and I'm thinking now Chief Justice Roberts opinion in the Shelby County Voting Rights Act case, or whether you know someone like Thomas or Alito, you know Alito in that opinion this last term overturning really important precedents that protected unions for example, whether that's quote worse for progressives. It sort of depends on this question of institutional legitimacy, you know over the last 50 years progressives have cared a lot about the Supreme Court's legitimacy and about the idea that the court is a bulwark that protects the rights of vulnerable minorities. And it's been conservatives who've been much more critical of the court because of abortion but on other fronts too. And now I think we're seeing a potential kind of shift going on where progressives may be much more skeptical of the court's role going forward especially if the Court becomes seriously out of step with Americans' political preferences and that is a real possibility because we're looking at this deeply conservative court that will be entrenched long after President Trump is out of office versus a country that demographically looks like it is moving in a more progressive direction. And so as that gap grows it will be interesting to see how the politics about the court shifts.

Rosen: [00:51:10] Thank you so much for that. Our last topic is the Mueller investigation and the Constitution. Wired magazine on December 17th published a complete guide to all 17 known Trump and Russia investigations which is a good explainer for listeners who want to disaggregate the various investigations. But my question to you Josh and Emily is the constitutional one: out of all of the twists and turns that may come out of the Mueller investigation over the coming year, what constitutional issues do you think is likely to be most salient?

Blackman: [00:51:48] I'll start, I'll try to disaggregate the explainer. I like those buzzwords. You know the Mueller investigation is multifaceted. There are many aspects to think about so far. As far as we know, all of Mueller's prosecutions and investigations have concerned people who are not named Donald Trump or at least Donald Trump senior. There might be other people being subpoenaed. We have no doubt there are a number of challengers to Mueller's authority arguing that he is either a principal officer or alternatively he is an inferior officer exercising too much power. And so far the courts have rejected those arguments. I think Mueller is probably appointed correctly but there might be some wrinkle in the fact that his position is of a limited duration. Last year in the Lucia case, the court said that a person who has an office that's of limited duration that doesn't extend beyond a given project is not an officer at all but merely an employee of the United States. An employee of the United States per Buckley can't exercise his power. Actually Seth Barrett Tillman and I, we wrote a thing on Lawfare about this. So I think there is an actual problem with Mueller not being an officer at all. But the courts haven't bitten on that yet. We'll see what happens when it goes upstairs. The big question that will happen is what happens if Mueller tries to subpoena Trump? Not indict him but subpoena the president separate interview. So far that hasn't happened. I don't know that he could do that without the permission of DOJ. But you don't really know what the supervision is like there. And the president may try and fight the subpoena. Of course we have the precedent of US versus Nixon. People forget about that case: the subpoena was actually issued in the context of a criminal prosecution where defendants have right to compulsory process. The evidence was not subpoenaed, the tapes were not subpoenaed as part of a investigation just in Whitewater. So I don't think  US v. Nixon goes quite as far as Mueller would need. The other big question about the Muller investigation: who's his boss? He was appointed by Rod Rosenstein who was acting as attorney general; can the acting AG even make that appointment? Moreover we now have a new A.G. Whitaker whose appointment himself as a huge constitutional puzzle. And what if Whitaker takes an action to limit Mueller? Would those limitations be set aside if Whitaker was not the correct A.G.? So I often feel like President Trump tries to make a law school final exam fact pattern by just stacking these issues one of top of the other, making it much harder to decide. And then we have to disaggregate, and then we have to do an explainer, which is where we are.

Rosen: [00:54:19] Thank you for that excellent disaggregation and explainer. Emily, same question to you: out of the many issues that may arise out of the Mueller investigation in the coming year, what constitutional issue or issues do you think will be most important?

Bazelon: [00:54:34] What matters to me here is the rule of law which isn't written anywhere in the Constitution but is the underpinning for all of it. And I think separation of powers is crucial here. You know the country needs to have some way to address wrongdoing by the president of the United States apart simply from the next election because we need to be able to understand what a president who's credibly accused of wrongdoing has actually done. And so what I think we're seeing so far in the Mueller investigation and the apparatus for a kind of quasi special counsel that was set up after Bill Clinton's administration, we're seeing that hold up kind of remarkably well despite Trump's many attacks on it, despite the installation of you know Matt Whitaker as acting attorney general, someone who normally would not be considered for that position based on his qualifications. It's all kind of continuing to unfold and I think it's because of the momentum the investigation had gathered before Whitaker was installed, you know when you have a lot of credible evidence and indictments and guilty pleas and sentencing hearings that's a pretty hard train to stop. I think so far we are kind of passing the test of what we can think of as like the Watergate test right? I mean when Nixon was the president he was called an unindicted co conspirator by the special counsel of his time and the country wrestled with that and eventually his popularity ratings fell including among fellow Republicans and he was impeached. I'm not saying that's the right outcome here. I think there is lots we still don't know about. But Mueller and other prosecutors in the Southern District of New York have uncovered a lot about Trump's behavior. What's important is that we see it through, that we the public find out what the FBI and the Justice Department knows and then that we hold our politicians accountable for assessing whether these are grounds for impeachment or whether this is reason for the country to choose not to re-elect Donald Trump or whether eventually he could be indicted. I mean I think because there is an internal Justice Department memorandum that suggests the president cannot be tried for crimes, it's likely that he will also not be indicted in office. But you know there's also starting to be some pushback on that question and wondering whether an indictment but not a trial could be possible. That's a position that Walter Dellinger has taken, that Neal Katyal has been talking about lately. You know again President Trump is really testing the kind of norms of our democracy and putting us to a test and we just don't know yet how well we passed, constitutionally or otherwise.

Rosen: [00:57:21] Thank you so much for that. Well it is time for closing arguments in this wonderful end of year discussion and we've just looked forward to 2019, I'll ask you now to look backward to 2018 and the question is the obvious one. What was the most important constitutional issue of 2018 and what should our listeners think about it? Josh the first word is to you.

Blackman: [00:58:09] The most important- the most important decision from 2018 I think was Trump against Hawaii the travel ban case. This was a challenge to president Trump's authority to exclude people from the country. And every single district court that heard the case rejected the challenge. In fact I was I think on your program some time ago defending the travel ban. People said I was wrong about that. And Trump won in court five to four and the court upheld his authority to exclude these aliens which is why I would not put forward lower court decisions as a good predictor of how the Supreme Court will rule. I think most cases like any good boy are chosen forums that are friendly. The reason why the judge O'Connor opinion in Obamacare is so shocking is that Texas got to choose its forum and they picked a forum where they were likely to get a better result. So I would use the travel ban case as a, perhaps a warning that the court should not- I'm sorry, analysts, should be a little bit more skeptical about the likely success in the lower courts versus the Supreme Court. And why couple the cases I mentioned with emoluments, Obamacare, and otherwise, people may be surprised what happens upstairs.

Bazelon: [00:59:34] I'm continuing to watch with great interest the expansive interpretations of the first amendment by the Supreme Court. I mean the first amendment has emerged as such a crucial issue this year as we think about online speech disinformation campaigns related to the election. But it has all these other dimensions I mean as our Supreme Court has interpreted it, it's why we have so much undisclosed and just so much money pouring into politics that sort of all or much of it is in the wake of the ruling in Citizens United. Even if it can't be directly attributed to that ruling and then this past term we have this ruling that I mentioned earlier Janus, in the case known as Janus, in which the conservative members of the Supreme Court made it harder for unions to establish branches in different parts of government. And that also was based on a first amendment interpretation. And so I think Americans are used to thinking of the first amendment as this incredibly important pillar of American democracy. And that's for good reason, it is all of that, but it's also really grown in ways that I think we should be thinking about whether they're just as necessary and important or whether the First Amendment becomes a kind of smokescreen itself for doing things that the conservative wing of the court is eager to do under a cloak that seems to have this kind of positive and cheery connotation for a lot of the public.

Rosen: [01:01:08] Thank you so much Josh Blackman and Emily Bazelon for a deep, illuminating, and meaningful review of the constitutional issues of 2018. And a preview of 2019. And dear We the People listeners thank you for joining with me every week to learn from the greatest constitutional minds on all sides of the issues at the center of national life. I have to tell you what a privilege it is every day for my colleagues and I to come to work to learn and teach. And for me one of the greatest privileges is to come and learn with you We the People listeners every week. You know how moved I am by the exhortation from Isaiah that Justice Brandeis loved so much: come, let us reason together. And every week we come together, we gather thought leaders like Emily and Josh and together we engage in the practice of public reason and we all learn in the process. So thank you for being part of this journey of lifelong learners with me and Josh and Emily, thank you once again for having educated and enlighten us. Thank you and happy holidays.

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