Freespace

Supreme Court: First Amendment protects the rights of government employees

I explain at Goldwater's blog, In Defense of Liberty.

I hate the travel ban decision—but it’s right

Today’s Supreme Court decision upholding the President’s authority to ban people from specified Middle Eastern countries from entering the United States is upsetting, perhaps—but it’s pretty clearly the right legal decision. The travel ban may be cruel and stupid, but the President has the constitutional authority to be cruel and stupid in many ways, and this is one of them.

The arguments against the travel ban basically boil down to two: 1) does it amount to religious discrimination that violates the First Amendment? And 2) does it violate the Immigration and Naturalization Act, a federal statute that allows the President to bar the entry of “all aliens or any class of aliens” if he “finds” that their entry would be contrary to the national interest. That word “finds” is really important, as we’ll see.

The First Amendment argument has always struck me as silly. It’s a stretch to say that the Amendment—which forbids Congress from creating a national church or from hindering the free exercise of religion—has anything whatsoever to say about entry into the U.S. by foreigners. The idea is supposedly that by banning people of particular religious group, the President is discriminating on the basis of religion and that this “prohibits the free exercise” of religion and establishes a religion (Christianity) for the United States. It doesn’t—people are just as free to practice their religion after the imposition of the travel ban as they were before. Worse yet, consider what a contrary ruling would mean: if a church announced that it was an article of its faith that members devote themselves to violence against the U.S., the President wouldn’t be able to bar them from entering the country, because doing so would constitute religious discrimination? This is plainly absurd, and would, at a minimum, encourage those with a desire to harm Americans to dress up their beliefs as a religious creed in order to evade military cordons. In fact, such a ruling would create the paradoxical effect that a person with religiously-motivated intentions of harming the country could not be barred—while a person who intends harm because he is a Marxist or holds other purely secular desires to harm the country could be. That would itself be religious discrimination.

Obviously the First Amendment does not mean any of this. Indeed, it is hard to imagine how a restriction on foreign nationals entering the United States could ever be an establishment of religion—since it doesn’t force anyone to embrace or subsidize a religious viewpoint—or a restriction on free exercise, since it would leave people just as free to practice their religion as they were beforehand, and does not condition a government grant on the surrender of religious rights.

True, it’s almost certain that the President adopted the travel ban out of plain hostility toward Islam. But as the Court correctly notes, the question is not “the statements of a particular President,” but “the authority of the Presidency itself.” As commander in chief and as the primary executive officer responsible for ensuring the enforcement of the laws, it is within the President’s authority to make decisions—including barring the entry of foreign nationals—so long as his decisions are “plausibly related to the Government’s stated objective to protect he country.” He can exercise that authority stupidly, but it’s his authority to exercise.

The second argument is the stronger one: that the President’s actions violated the Immigration and Naturalization Act. The argument here is that he failed to make any “findings” about the national interest, and therefore that his order was too precipitate. The Court rejects that argument, concluding that the White House’s actions were adequate to satisfy the “finding” requirement. Trump “first ordered DHS and other agencies to conduct a comprehensive evaluation of every single country’s compliance with the information and risk assessment baseline. The President then issued a Proclamation setting forth extensive findings describing how deficiencies in the practices of select foreign governments—several of which are state sponsors of terrorism—deprive the Government of ‘sufficient information to assess the risks [those countries’ nationals] pose to the United States.’” Again, one may disagree with those findings—but they’re his to find, and he found them. That’s all the statute requires. That’s a persuasive conclusion—and the dissents seem not to make any serious effort to rebut it. 

And such a rebuttal is hard to make. It’s obviously critical that the President have the power to restrict entry into the country in emergencies. As the Court notes, the argument of the travel ban’s challengers would run the risk of tying the President’s hands so much that he couldn’t “suspend entry from particular foreign states in response to an epidemic confined to a single region, or a verified terrorist threat involving nationals of a specific foreign nation, or even if the United States were on the brink of war.” That’s not reasonable, and it’s not consistent with “[c]ommon sense and historical practice.”

Thus the Immigration and Nationalization Act regulates the President’s authority without totally extinguishing it. It bars certain types of discrimination in admissions to the U.S., while allowing the President to bar entry whenever he finds it necessary to do so. Reading the statute that way implies that the “findings” need only be pro forma—even mere suspicion would suffice. That’s a reasonable reading of a law that’s supposed to balance the needs for fairness with the need to preserve strong national security options.

This is one of those cases where one must admit that something stupid and wrong isn’t necessarily unconstitutional. The executive power that the Constitution gives the President is an expansive and dangerous power—which is just why it’s so important that we not choose bad people as President.

Roberts Court upholds free speech at the polls...for now

I have an article on Ricochet explaining why Chief Justice John Roberts' opinion in the Minnesota T-shirt case has left us wanting more. Excerpt:

...like so many of Roberts’s rulings, [Mansky is] essentially confined to this specific case, and sets almost no helpful precedent for the future. This is a pattern for Roberts, who in the 2014 Bond case said the chemical weapons treaty did not apply when a woman tried to poison her rival in a love triangle — but failed to say what exactly the treaty does mean; and in the infamous Obamacare case, ruled that the Affordable Care Act went too far in threatening to withdraw funding from states that declined to expand their Medcaid programs — but also didn’t invalidate the law because “we need go no further.”

Read the rest.

The problem with mother!

I finally got around to watching mother!, last year’s controversial pseudo-horror film that National Review called “the vilest movie ever released by a major Hollywood studio,” and that many others found simply bewildering. I didn’t think it was nearly that hard to understand; it’s an allegory, and a clever one. It just happens to be intensely evil.

“Clever” is, of course, the most that can ever be said for allegories; as an artistic form, allegory isn’t capable of more, because while it can be made indefinitely wide, it can’t be made deep. Pilgrim’s Progress is clever, perhaps even inspiring to some, but it can’t delve to the level necessary to make it art rather than propaganda. Propaganda and allegory are essentially the same, because the characters and action are nothing more than proxies for matters adjudicated elsewhere. So mother! is clever, and that’s not a bad thing. Nor is it badly made. It’s quite well made, in fact, and the acting is—well, fine enough. I’m not a fan of Jennifer Lawrence, who’s always seemed pretty monotone to me. But she’s up to the material here.

Yet this is a film of such intense misanthropy that it literally longs for the destruction of all mankind. Celebrates it, in fact; lusts for Armageddon; dreams fanatically for the death of all mankind—and ends as a kind of tragedy in which the audience is invited to be disappointed that such a thing is impossible, in the terms offered by the film. I’ve certainly never seen a movie as full of hatred for the human race as this one.

What caused confusion about mother! was that some in the audience only saw it as a satire or criticism of Christianity. And it certainly is that. The husband (Javier Bardem)—referred to only as The Poet or Him, or in one especially obvious scene, as “I am I”—is the Judaeo-Christian God. The film shows Him up as insane, bull-headed, vainglorious beyond measure. But mother! does not stop there. In fact, it is not an anti-religious movie. Quite the contrary. It is a pro-religious movie. Just—of a different religion.

Mother! is a showdown between Christianity—or, more accurately, of Christendom; the culture and legacies of Christianity in addition to the faith itself—and the religion of Environmentalism, as represented by the Earth Mother, Jennifer Lawrence. The film does not celebrate any secular virtue; it does not lead us to admire or even consider reason, science, discovery, or any kind of human value at all. The only value the film approaches celebrating is fecundity, but even this is merely asserted as a value yet (rather prominently) without any explanation of why it is a value. And the film does not condemn the God-figure husband for the faults that skeptics and atheists have long cited in criticizing religion. Rather, He is condemned most of all for His affection for humanity, an affection that is shown to us as pathological.

Humanity appears in the film as a contemptible, diseased, rude, crude, greedy, suicidally stupid race of monsters. From the Cain-and-Abel sequence at the beginning (notably, only Gaea sees the stain of sin they leave on the floor; God does not) to the people who, told it’s unsafe to sit on the sink, insist on hopping up and down on it (thus causing Noah’s flood), to the socialist rioters and imperialist warriors at the end, humanity is portrayed as nothing other than a thoroughgoing disaster. They break and defile the home, stealing and destroying everything in it, despite the mother’s constant begging that they stop. In other words, mankind insists on polluting the earth, trespassing on it, and taking it as their own. Fair enough—that much is to be expected in any sort of Deep Ecology Fairy Story. But God encourages them throughout to do so—giving them dominion over the fish of the sea and over the birds of the heavens and over the livestock—and this is shown to us as an abuse of the Earth Mother, one that rises to such intensity that the audience is enlisted to sympathize with her when she begs God to destroy humanity so the two of them can be “alone together.” She pleads with Him time and time again to “make them (human beings) go away,” and He stubbornly refuses. In other words, we are expected to share her panicked frustration that  God refuses her pleas to engage the Final Solution. The climax of His faults comes when the vile humans have murdered Gaea’s newborn baby, and He insists on the Christian doctrine of forgiveness. This makes her snap, and she blows up the house, murdering all humanity, and herself in the process. The audience is expected to see this as a triumph.

Mother! thus condemns Christianity not for its faults, but for its few virtues—for those aspects of the faith that are arguably humane and civilized; for its emphasis on forgiveness, compassion, celebration, abundance, fellowship, hospitality, understanding, and human life. The film longs for the possibility of God and Earth alone together in silence, undisturbed by the rapacious vermin that is homo sapiens. It is because God refuses to do this—His reasons being a mixture of corrupt longing for human adulation, an insatiable need to create beautiful things, and a tenderness toward the strange and sweet creature that is man—that He is portrayed as the villain. At last, longing for the peace of oblivion, the Earth Mother begs Him to kill her, only to find that even this is impossible, because He has locked her in an infinite cycle of creation and cruelty. God has made her, and sold her into slavery to His wicked creatures, for eternity.

Mother! reeks with hatred for man, hatred that comes almost as an afterthought to its thoughtless and inhumane worship of Gaea, in contrast with whom not only Yaweh but all other gods, prophets, values, and virtues are made out to be false. Thus the film is not just “mocking Christian dogma,” as National Review claimed; it is intended as a tract in support of an alternative faith, a faith more hostile to humanity and secularism than almost any other religion you can name—a religion whose godhead is Nature undisturbed by human beings, and in which everything that gives life meaning has been eradicated to make the planet pristine. Of course, a planet cleansed of humanity isn’t clean. It’s just a rock.

Happy birthday, Lon Fuller

Today’s the birthday of my favorite legal thinker, Lon Fuller, author of such classics as The Morality of Law and The Case of the Speluncean Explorers. Fuller was an articulate and persuasive advocate of secular natural law theory (which he distinguished from natural rights)—and mustered powerful arguments against legal positivism. Law, he argued, has an inherent “morality” to it, which limits what we can mean when we refer to law, and the most interesting and important of these principles is that law contains an element of reciprocity. It’s more like a promise than a command. Law is not an order handed down from on high and backed by punishment. It’s a kind of agreement between the governed and the government, whose purpose is not to achieve what the rulers want (what he called “managerial direction”), but to facilitate the pursuits of the citizens in peace and good order.

Fuller’s work is masterfully well-written, not at all hard to follow, and far deeper than it sometimes appears at first. He consistently thought in principles, not particulars, and with both a becoming sense of intellectual humility and a noble willingness to stand against the majority when he believed himself in the right. I can’t recommend him strongly enough.

Short long story

My poem “Short Long Story” appears on David Lehman’s American Scholar blog today. 

I knew the story’d be a little long.
The old man seemed to lose his way at times.
He was in his 80s? Could be wrong;

don’t think he said. Told me he’d belonged
to the Air Force—this was at the time
when it was still the Army—that was long

ago. He was young, had never gone
anywhere past the county line
before. Now in Rome—no, I’m wrong;

Berlin? Anyway, he wrote his mom
or girlfriend just a couple lines,
always kept it cheerful, not too long,

not too detailed; told them bombs
sounded like old tractors. He would sign
off jauntily. Maybe it was wrong

not to tell them more? Sounding strong
with brevity? Then he paused, and I
made some excuse to leave. He died—a long
story—shortly after? Could be wrong.

Yes, the President probably can pardon himself—and that’s a good thing

The Constitution’s tripartite system of checks and balances is among the most ingenious inventions in human history. It’s not perfect, any more than the electric light or the internal combustion engine, but like these things, but nothing has to be perfect—just better than the alternatives. Written by a generation of people who had experienced a form of tyranny—and read a lot about others—the Constitution establishes a flexible mechanism more like a shock absorber than a shield. But unlike these mechanical metaphors, the Constitution relies critically on the citizens who comprise it. It is, after all, just words on paper, meant to express a set of promises—and like promises, it can be broken. It is only so strong as our fidelity to it.

Like so much else in the Constitution—which doesn’t even contain a definitions section—the president’s power to pardon himself is left unaddressed in the actual words. The Constitution simply says the President “shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.” Note that last bit: the President cannot immunize himself against the only mechanism that the Constitution provides for removing him. But he can grant pardons for all other offenses.

Why? Because the pardoning power has always been considered part of the executive power, and it is important for reasons beyond the obvious mercy. The use of criminal law for political purposes was something the founders were quite familiar with; they had lived under George III and their grandfathers had lived under the Stuarts. That’s why they wrote the treason clause in such a way that treason more or less doesn’t exist in the United States, at least in the form they’d known. Treason can only be adhering to and aiding an enemy, and must be actually witnessed, not proven by circumstantial evidence—and it cannot work corruption of blood. Treason is therefore an ordinary criminal charge in the U.S., which is totally unlike its use in the British Constitution with which the founders were familiar. Under that system, it had been a political device used to neutralize entire families that might threaten the crown.

The risk that Congress might undermine the power of the Presidency also led the founders to bar removal of the President except through the special case of impeachment. It would be an easy, all too easy, matter for the legislative or judicial branches, or both in concert, to try to remove the President or his advisers through manufactured criminal charges. The pardon power prevents such encroachments on his domain. The president, notes The Federalist, “may even pardon treason.” Well of course he can! A dangerously power-mad Congress or judge could all to easily accuse the President or an unpopular cabinet member of treason and cripple the presidency, otherwise. So of course he can pardon himself. But this does not, of course, immunize the President to commit treason, for he can still be impeached, and once removed from office, he can have no power to pardon, and can therefore be convicted in an ordinary court of any crime he’s committed. Is that an unrealistic prospect? The governor of Missouri was just replaced last week, having resigned because he was facing impeachment for precisely this reason. And a president may, of course, also be impeached after he has pardoned himself, for having misused his pardoning power.

True, no court has ever addressed the question of whether the president can pardon himself for ordinary crimes. And he cannot pardon himself, or anyone else, for crimes against state law. But considering the powers of his office, the opportunity for impeachment, and the system of checks and balances, the best answer is that he can pardon himself, unless impeached.

The pardoning power is an important component of a system that’s designed to protect the people—either from a malfeasant president or from an ambitious Congress. The founders knew that each branch of government poses its own risks to the people’s liberty (and rightly believed Congress the most dangerous). They established a system in dynamic equilibrium—but one that must be monitored and respected, in order to work. The system will not survive if the people are willing to disregard it—either by tolerating intolerable behavior in the President, or by undermining the crucial elements of his office.

Update: Couple points to clarify: no, if he pardons himself and then is impeached, he cannot then be tried for the crime; the pardon is still valid, in my view. Again, there's no court case on this, but there's also no reason that I can see why the pardon would not be valid. A pardon is absolute. True, that means a President could pardon himself for "any crimes he may have committed," Ford-style. But that would, in my view, be grounds for impeachment.

Doesn't this violate the maxim that a man should not be judge in his own case? No, for two reasons. First, a pardon is not an acquittal, or an expungement of record, or anything like that; it just means you don't get punished. It erases the consequences of a crime, but it is not judgment at all. Second, there are, as I've said, important constitutional reasons why, in this instance, the President is, in this limited sense, the "judge in his own case." Imagine a corrupt Congress trying to do evil to the nation, and the President vetoing that repeatedly, or taking other steps to protect the country from a corrupt Congress. If that happened, it would be critical for the President to be able to defend his authority with this self-pardon power. Consider for a moment the history of the Civil War, and Judge Taney's obscene resistance to the Lincoln Administration's defense of the Constitution, and it is not then hard to imagine some alternate universe in which, say, a secessionist movement in Congress or in the courts would try to use the criminal law to paralyze the President in his effort to defend the Constitution. Could some federal judge in South Carolina in 1863 have indicted Lincoln for some pretended crime (treason, for instance)? Such hypotheticals might seem silly to those not familiar with what actually happened in 1861-65. In any event, if something like that were attempted, it would be critical for the President to be his own judge, subject, of course, to Congress's power of impeachment.

On Twitter, Cass Sunstein says, "No, the president cannot pardon himself. Discussed here"—and links to his book, Impeachment: A Citizen's Guide. But here's what Sunstein says in his book (and this is the entirety of it):

Can the president pardon himself?

Probably not. What the heck, let’s go for broke: no.

The Constitution says, “The President...shall have Power to grant Reprieves and Pardons for Offences against the United states, except in Cases of Impeachment.” You could easily read that provision to say that the president can pardon anyone for anything (except in impeachment cases)—and that would allow self pardons. That’s the theory to beat.

One qualification to the theory is that, if the president exercises the pardon power in certain ways, he might be impeachable for that very reason. The president could be impeached if he said that he would pardon anyone accused or convicted of rape. And if a president is under investigation for serious wrongdoing and pardons himself, as a way of eliminating any risk of prosecution, there is a good argument that he has committed a misdemeanor in the constitutional sense. That would seem to be an abuse of power.

But that doesn’t answer the question. The best argument against self-pardons would emphasize the old maxim that “no one can be a judge in his own cause,” and add that if a president is pardoning himself, he's violating that maxim. Surely—you might insist—the drafters and ratifiers of the Constitution, deeply hostile to the whole idea of a king, could not have wanted to allow the president to place himself above justice. True, the pardon clause seems to give the president unlimited authority (outside of impeachment cases), but in view of the background and the context, it should not be read to allow him to insulate himself from the force of the criminal law.

Sounds right to me.

That’s it. That’s all he’s got. Which is a good example of why you shouldn’t “go for broke” in constitutional law. “Sounds right to me” is not a persuasive argument, especially against the plain language of the Constitution. Had the founders meant to deprive the President of power to pardon himself, they would have done so. They knew how to create exceptions from the pardon power. In fact they did that, by saying “except in cases of impeachment.” The fact that they omitted to say “except of himself” is proof that they specifically chose not to. And The Federalist, in discussing this Clause, refers to the fact that the governor of New York could pardon himself even in cases of impeachment, and discusses the mischiefs that causes. So the founders were familiar with the risks and chose not to ban self-pardons. The “old maxim” cannot override the text of the Constitution, and while the founders certainly were hostile to the idea of a king, they nevertheless modeled the pardon power on the royal pardon power—there were aspects of monarchy they liked and incorporated into the system, and for good reason. And if Sunstein is going to rely on what the founders intended in that sense, then he cannot omit reference to the checks-and-balances considerations I’ve addressed above. And yet he does omit it, in order to say “Sounds right to me.” Well, it may sound right or it may sound wrong, but the question is what the law is, and the law here is, yes, the President can pardon himself, and if you disapprove of him doing so, then you can impeach him because—as Sunstein correctly says—he is impeachable for the very reason of having abused his pardoning power.