The Judicial Branch Impugned

We live in strange times, my friends. Before the Trump era began, which seems like very long ago already, I would not have believed you if you had told me that the President of the United States would someday use his Twitter account to lambast and impugn sitting federal judges and the entire judicial branch along with them.

I would have laughed.

But just such a thing is the regular practice of our current president. On February 4th, just after his executive order banning immigrants and refugees from certain countries from entering the United States was put on hold by a federal judge (for the fourth or fifth time), Trump tweeted:

The opinion of this so-called judge, which essentially takes law-enforcement away from our country, is ridiculous and will be overturned!

That so-called judge is United States District Judge James Robart, is a nearly fifteen-year veteran of the federal bench. He was appointed by George W. Bush and approved by the Senate 99-0. According to the NY Times, he is a "mainstream Republican" in his personal politics (whatever that means anymore as Trump now leads the GOP), and is generally well-respected.

Robart is hardly the only federal judge whose motives and qualifications have been attacked by Trump. In late May of last year, when he was still just Candidate Trump, the president launched a Twitter war against United States District Judge Gonzalo Curiel. Judge Curiel's offense? He dared be the judge presiding over a lawsuit against Trump University (which ultimately settled before trial). According to Trump:

I have a judge in the Trump University civil case, Gonzalo Curiel (San Diego), who is very unfair. An Obama pick. Totally biased-hates Trump

Trump subsequently attacked Curiel for being a "Mexican" and thus being inherently biased against the candidate who ran on openly anti-Mexican and anti-immigration platforms. And then Trump doubled down on his comments, refusing to apologize.

All this would be a sideshow but for Trump's role as the chief executive of the United States government. As president, he seems strangely unaware of (or unconcerned about) the well-established (and widely known) system of checks and balances upon which our country's government depends. The legislative branch passes laws and approves funding for the executive branch. The executive branch enforces the laws but can also veto them. The judicial branch reviews laws and executive actions for their compliance with the constitution. The executive branch appoints judges to the judicial branch and the legislative branch approves or rejects those appointments.

Trump, however, appears to understand none of this, or at least oppose this system whenever he doesn't get what he wants out of it.

Lest anyone be prone to false equivalence, while it is true that presidents have long discussed or even criticized specific judicial decisions, none have previously suggested that the judges themselves are corrupt or illegitimate for ruling the way they did.

Certainly there have been corrupt and biased judges in the past, and there will be corrupt and biased judges in the future. And many times judges make bad decisions. But the stability of our governing system requires that the executive branch not accuse the judicial branch of illegitimacy any time the president doesn't get his way.

The executive branch will win some court cases and it will lose some. It will sometimes get told it has gone too far. The very basic job of the president in those situations is to firmly disagree with the result, if need be, but never to suggest that the only legitimate branch is his own. Is that too much to ask?

The President is the Chief Executive, not a Legislator

In my time on this planet, I have so far survived nine presidential elections. For as long as I can remember, the media circus surrounding each has focused on the legislative goals of the candidates. By that I mean the main topic of discussion has always been what particular policies the would-be presidents supported, such as their takes on health care law or abortion law or business regulation or tax law.

If your perception of the presidency was informed entirely by watching the news, you might think that the President of the United States functioned as some kind of Super Legislator, as someone who wielded the enviable power of both proposing new laws and then enforcing them upon enactment. Thus, under that framework, whatever a particular candidate suggested we do about health care (for example) would not just be important or influential, but supreme.

But if your perception of the presidency is informed instead by the U.S. Constitution, you might be curious why so much focus is placed on legislative prerogatives. Most of the President's job is defined by Article II, which gives him or her various executive tasks: appoint judges and executive officers, command the military, make treaties, grant pardons, apprise Congress of the state of the union, and "take care that the laws be faithfully executed."

The legislative role is instead vested entirely with Congress, those wily Representatives and Senators who haunt the halls of the U.S. Capitol. Their duties are described by Article I, chief of which are the passing of new laws and the modification or repeal of old ones. That said, they can't legislate on their own. The President does play a part in this process, and makes an appearance in Section 7 of Article I:

Every bill which shall have passed the House of Representatives and the Senate, shall, before it become a law, be presented to the President of the United States; if he approve he shall sign it, but if not he shall return it, with his objections to that House in which it shall have originated, who shall enter the objections at large on their journal, and proceed to reconsider it. If after such reconsideration two thirds of that House shall agree to pass the bill, it shall be sent, together with the objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a law.

The Presidential "objections" to which the Constitution refers are known as a "veto," which can only be overridden by a two-thirds majority of Congress. The presidential veto is a powerful tool that is used sometimes often and sometimes rarely, depending mostly on the partisan makeup of Congress compared to the party affiliation of the President. When Congress is dominated by Republicans but the White House is occupied by a Democrat (and vice versa), vetoes are more common than when the same party controls both.

But why the lesson in basic civics? Because there is now, as there always is, a debate raging among liberal commentators about the various legislative prerogatives of the top two Democratic candidates, Bernie Sanders and Hillary Clinton. There is much hand-wringing and finger-pointing about the more radical (or perhaps not radical enough) policies that Sanders supports compared to Clinton. For example, Sanders has long touted the need for universal single-payer health care. He opposes restrictions on abortion. As an independent member of Congress since 1991, he has repeatedly introduced and supported bills with liberal or outright leftist policy goals.

Clinton, however, is regarded as a centrist if not right-leaning. She has repeatedly voiced support (as First Lady, Senator, and Secretary of State) for conservative legislation like welfare reform, the Defense of Marriage Act, and mandatory minimum sentences for federal crimes.

Because Congress is currently controlled by Republicans, Clinton, as the centrist, is considered by some to have the more "viable" legislative prerogatives or abilities, and therefore is a more viable candidate for the presidency whereas Sanders would be "a gamble." After all, how effective can President Sanders be if has no hope of passing his pet bills through a hostile Congress?

Very effective, actually. At least in other realms. When faced with a hostile, conservative Congress, sometimes the most important role of a liberal president is that of legislative gatekeeper unafraid to wield the sword of veto. Though his or her own policy goals may not pass, he or she retains the power to prevent worse bills from becoming law. For example, we may not see universal single-payer make any headway during the next four years, but we might see the next president strike down a bill rolling back the incremental gains of the Affordable Care Act.

And the President wields incredible power beyond his or her role as bill signer. First, the President, as Commander in Chief, can determine whether the United States invades a foreign country without provocation or summarily executes its own citizens abroad with airborne drones (Congress' constitutional role in warmaking has been seriously restricted over the past several decades). The President also oversees executive agencies like the EPA and IRS, thus controlling the enforcement of the nation's environmental and tax policies (for example).

Regardless of the particular dynamics of the current presidential race, the general trend of viewing candidates through a legislative lens overlooks the tremendous power of the office. Instead of asking whether any candidates' particular policy prerogative has a chance of passing through Congress as it is currently comprised, the main questions should be centered on the use of executive power. How would each candidate react to a crisis abroad? Will each candidate continue the "War on Terror" and its related drone and surveillance schemes? How will the IRS operate under each candidate; will it audit and prosecute aggressively or will it cut back its staffing? Who would each candidate appoint to the Supreme Court, or to any other vacancy in the federal judiciary? Will the NSA, FBI, and CIA continue to spy on our communications without serious constraint? These are all critical questions.

This is not to say the president does not play an important, influential role in the proposal and eventual passing of legislation. A candidate with strong left wing views like Sanders will inevitably face more resistance in the current House and Senate than a Republican or a conservative Democrat. But to hang support of any particular candidate on his or her ability to pass any particular policy through Congress alone is to miss the constitutional point of the presidency.

We Meant Well

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

First Amendment to the U.S. Constitution (emphasis added)

"We Meant Well" is not just the title of Peter Van Buren's excellent book about the futile and wasteful attempt of the U.S. to rebuild Iraq after invading it. It's also the universal plea of all those who, despite good intentions, really made a mess of things somehow.

This week, Pew Research released the results of a poll about freedom of speech. For the first time ever, they asked whether respondents believed government should be able to prevent people from saying things offensive to minority groups. Two-thirds said no. Twenty-eight percent said yes.

If you're a proponent of free speech, or, rather, opposed to the government criminalizing speech, the results should be reassuring to you. It seems there is little support for a crackdown by police and other state actors on offensive utterances. America isn't England, after all. We have a tradition of allowing people, by right, to say pretty much anything they want to say no matter how borish or offensive it might be, with few exceptions.

But digging deeper into the poll results reveals something peculiar. "Millennials," those wily scamps aged 18-34, support so-called "hate speech" laws more than anyone else. Forty percent are OK with government restrictions on speech offensive to minority groups. Nobody else comes close. Both Gen X (my generation) and Boomers (my parents) manage less than thirty percent support for such a proposition. It may or may not shock you that the "Silent Generation" (my grandparents) aren't keen on laws against racist commentary at all - eighty percent say no.

The racial breakdown is also not especially surprising. Non-whites support anti-racist speech laws at a rate fifteen points higher than whites. So the two biggest contingents of support come from young people and people of color.

If you run in academic circles or pay attention to the various anti-racist protest movements around the country, you might be inclined to believe that the vast army of non-white PC fascists on college campuses is the force behind this sentiment. But the poll shows that support for hate speech laws declines as college education increases. Granted, there are a LOT more college graduates both older and whiter than the current crop of college protesters fighting for "safe spaces" and racial justice across America's quadrangles, but it still suggests that most support comes from those who haven't graduated high school - though the rank of high school graduates now includes more Millennials than it excludes due to age alone.

No matter which demographic breakdown seems more illuminating, it is important to point out the problems with the underlying premise of outlawing "statements that are offensive to minority groups." How does one determine what is "offensive?" I'm not trying to be obtuse here. There are certain racist things that pretty much everybody can understand to be offensive by their very nature. But if we're going to criminalize certain speech (or, as the poll describes it, let the government "prevent" it), we'll need to define it some way. Who gets to define it?

The answer, of course, is legislators. Leaving aside for a moment the fact that most legislators at all levels across our country are white men, we couldn't outlaw offensive speech unless we had a law defining what counts as offensive. Do we let the police arrest only those who use the "N-word?" Or do we let them arrest someone for saying anything up to and including vaguely troublesome dog whistles like "you people?" Where is the line drawn?

Let's create a hypothetical rule to answer that question. Let's outlaw any explicitly racist slur. The "N-word," of course, but also "Chink," "Wetback," "Negro," and the like. If you use one of those words, in any context, the police can arrest you and you can be charged with a misdemeanor. Also, we'll outlaw any terms or statements that are critical of an entire race as a whole. Anyone who says "black people are animals," or "Hispanics are lazy criminals" or anything broadly nasty such as that can also be arrested and charged. 

This rule is passed by a legislature of some sort. Let's call them Congress a decade from now. We've had a couple of elections and we'll presume that a Democratic wave has recaptured both houses. In an effort to appease the liberal base and move the country closer to racial justice, Congress passes the Hate Speech Act that outlaws racist slurs like what we've identified above.

Things go smoothly for a few years. Racist jerks are being arrested and charged and the incidents of public hate speech are on the decline. The law is an effective deterrent for nasty racist commentary. But something else is still happening. Black men are still being killed by police officers at a disproportionate rate. Protesters and angry commentators are still saying and posting things very critical to police forces all over the country.

Then Congress shifts back to the GOP. And, seizing the power of the Hate Speech Act, they amend it to include anything critical of police officers. They call it the Blue Lives Matter Act. Soon, protesters opposed to police brutality get arrested and charged for hate speech by the dozens, and are easily convicted. The law, after all, paints with a wide brush because hate speech can come in varying forms. And why should only racial minorities be protected? Why not police officers, our heroes and protectors?

Such is the danger of criminalizing speech. There is no doubt that racist rhetoric is poisonous to our civil discourse and traumatic to those who are targets of it. Freedom of speech or not, good citizens should not be lobbing hateful comments at each other. Racist slurs and insults reinforce societal inequalities that must be combated and torn down somehow.

But we must resist the urge to "do something" about it if doing something restricts the freedom of expression we enjoy as a right under our Constitution. Not because hateful rhetoric is OK or racists should not be scorned or shunned, but because criminalization of anything increases the power of the police state and gives more power to those who would abuse it. The vague notion that something is "offensive" to someone can be manipulated to benefit the privileged against the oppressed, even if the initial intent was noble.

In 1798, in the wake of the French Revolution, President John Adams signed into law the Sedition Act, making it a crime to criticize the national government. Many people (mostly members of Thomas Jefferson's Democratic-Republican Party) were fined and arrested and imprisoned under the law. Though obviously unconstitutional (the First Amendment expressly prohibits Congress from abridging the freedoms of speech and the press), the Supreme Court of 1798 was not the same as it is now. There was no way to have such a law declared unconstitutional. Only after Jefferson became president and the Democratic-Republicans took office was the Sedition Act allowed to expire.

More than a century later, Congress amended the Espionage Act of 1917 to outlaw "disloyal, profane, scurrilous, or abusive language" aimed at the U.S. government during World War I. The amendment was known as the Sedition Act of 1918 and was not repealed until 1920, two years after the war ended. It was even upheld as constitutional in the case of Abrams v. United States, 250 U.S. 616 (1919). Violation of the law carried a jail sentence as long as twenty years. The most famous person convicted under the law was Eugene Debs, the socialist labor union organizer and critic of the U.S. government (he spoke out against conscription).

The Sedition Act and its later incarnation as an amendment to the Espionage Act, though draped in the nobility of national security and unity, were tools for those in power to consolidate their control and dominance. And that is the risk posed by any restriction on speech. The people in power need only tweak the definition of what speech is criminalized, then aim the coercive power of the police toward their preferred targets. Perhaps that's not scary if you're the one in power and not the current target of the restriction. But political power can be transitory in this country and your tight hold on government could vanish overnight.

Racist speech is reprehensible and indefensible. Yet criminalizing it would only expand the power of the privileged (who fill the seats of government) and the police (who physically assert their will). Pass a hate speech law against racism today, tomorrow it could easily prohibit the critical speech that fuels effective protest movements against government overreach and police abuse.

As the police batons come cracking down on the heads of outspoken troublemakers merely for uttering the wrong words and they find themselves convicted under laws they once supported, surely some will think to themselves, "but we meant well."

Language Matters

I often joke that I am "aggressively literate" - I read and write furiously and often. Indeed, my professional life depends on the quality of both my reading and my writing. How I interpret case law, statutes, and constitutional provisions can determine how well I grasp a legal concept, or whether or not I can spot a good case when it walks in the door, or how successful I am arguing a client's position before a judge, jury, or hearing officer. And my writing must be concise and logical - it is the primary vehicle for the majority of my advocacy as an attorney.

To lawyers, words matter. Language matters. We bicker endlessly over the definition of otherwise simple words like "cause," "reasonable," and "shall." The wording of a statute, which seemed clear and broadly inclusive to its authors, can take on an entirely different meaning in the hands of lawyers and judges. And words with important social ramifications, such as "corruption," can be narrowly reinterpreted several times over until they are effectively stripped of import.

In his essay "Politics and the English Language," George Orwell wrote about how language can be manipulated by those in power to control others. Political language, he wrote, is "bad writing" which consists "largely of euphemism, question-begging and sheer cloudy vagueness." Orwell went on:

The great enemy of clear language is insincerity. When there is a gap between one's real and one's declared aims, one turns as it were instinctively to long words and exhausted idioms, like a cuttlefish spurting out ink. In our age there is no such thing as ‘keeping out of politics’. All issues are political issues, and politics itself is a mass of lies, evasions, folly, hatred, and schizophrenia. When the general atmosphere is bad, language must suffer.

A more recent essay, one by Brett Max Kaufman, examines Orwell's other major critical indictment of political language: Nineteen Eighty-Four. Though we now know the Orwellian nature of U.S. government surveillance, where all electronic communications by all Americans everywhere are routinely scooped up and held for future law enforcement use, our spymaster overlords had to exploit language to capture the unstoppable power they now possess. Kaufman writes:

Take, for example, the government’s bulk collection of Americans’ phone records under Section 215 of the Patriot Act. (Or take, for that matter, “the Patriot Act.”) The statute authorizes the government to obtain “any tangible thing . . . relevant to an authorized investigation” concerning foreign intelligence or terrorism. Yet according to the Foreign Intelligence Surveillance Court’s breathtaking interpretation—which remained secret (and shielded from public scrutiny) until Edward Snowden came along—a record of every single phone call made on American telecommunications networks is “relevant” under Section 215.

The government has claimed that this is so because in order to find the small number of phone records it might be interested in later, it needs all of the records now. But that reading renders the word “relevant” effectively meaningless. Instead of serving as a limitation on the reach of the law, it places almost any conceivable “thing” within the government’s grasp.

In the words of the Privacy and Civil Liberties Oversight Board, which recently put forward an extensive legal analysis of the government’s theory, the interpretation means that relevance “becomes limited only by the government’s technological capacity to ingest information and sift through it efficiently.”

Just as Big Brother exploited language to turn unorthodox thoughts into crimes, our real-life leaders manipulate the meaning of words to further their own authoritarian power grabs. But this is a tricky subject, especially for lawyers. While Kaufman demands that words be given "their ordinary meanings," the obvious question becomes: who gets to decide what is ordinary?

In recent years, judges, including the Justices on the U.S. Supreme Court, have turned more heavily to mainstream dictionaries to define simple words and discern their larger, legal meaning. This has not happened without controversy. Using a common dictionary to define a word in a complicated statute can strip the statute of the legislature's intent. As the famous Judge Learned Hand wrote in 1945:

It is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary, but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.

Cabell v. Markham, 148 F.2d 737, 739 (2d Cir. 1945). Despite Judge Hand's legacy of legal genius, judges today are largely ignoring him.

Dictionaries reflect common usage, and common usage is a democratic process. If a large enough number of people use a word to mean a certain thing, it can find its way into a dictionary and then later be enshrined as the "official" definition in a binding legal decision. Jargon, improper uses, and "non-words" can be legitimized by majority rule. If, for example, enough people follow the Supreme Court's still-novel interpretation of "corruption" to mean only quid pro quo bribery and nothing more, then that's what corruption comes to mean. That definition, of course, enables all kinds of political influence, "ingratiation," and favor-giving which falls short of bribery but no doubt detaches our representatives from the majority of their constituents.

The point here is that language matters. How we use words matters. Being clear, concise, and consistent is critical to protect us from the overreach of the powerful. Allowing our leaders, whether legislative, executive, or judicial, to speak in vapid, empty terms to cover their underlying abuses of power is a derogation of our duty as citizens. George Orwell didn't just warn us about video and audio surveillance - he warned us about thought surveillance, in the form of manipulated language. We should take heed.