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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