Revitalizing Congress

Congress does not work for the President.  Congressional staff do not work for the President (let’s set aside the detail problem for now).  Just as Congress should not endeavor to destroy the President, neither should it seek to protect him.  It is not Congress’s duty to clear a path for the President or to help him deliver on presidential campaign promises.  It is, rather, the responsibility of Congress to check the President and to assert its own institutional prerogatives, using the limited tools that the Constitution has afforded it.  Unfortunately, loyalty to the president or to a political Party has usurped what should be the Senator or Representative’s ultimately loyalties: the legislative branch they serve, and, chiefly, the Constitution.

The entire enterprise of congressional oversight and investigation of the executive branch depends upon accepting the premise of institutional defense.  Senators and Representatives must accept that Congress must gather facts and evidence from the President and his subordinates in order for Congress to fulfill its constitutional role in the separation of powers.  That is, congressional oversight and investigation of the executive depend upon a recognition that the institutional interests of Congress are paramount to any loyalties owed to the President or to the Member’s political Party.

When congressional oversight and investigation are viewed merely as extensions of Party politics and political campaigning, however, oversight and investigation become meaningless as legislative prerogatives.  Congress consequently becomes weakened institutionally.  While there are certainly important bipartisan exceptions, Members of both Parties, over time, have too often either abused or ignored their responsibilities to conduct effective and meaningful oversight and investigation in aid of Congress’s constitutional functions, instead serving as blockers for the president during the opposition’s pass-rush.

Madison, in Federalist 51, described legislative power as the predominant authority in a republic.  He explained that this requires dividing legislative authority (into distinct bodies) and fortifying the executive (as with a veto). Hamilton, too, acknowledged in Federalist 73 the “superior weight and influence of the legislative body in a free government.”  (Hamilton, in fact, spent considerable time in The Federalist defending the veto, worrying about the accumulation of legislative power, and explaining how the executive could defend itself against the legislature, even noting the “hazard to the executive in a trial of strength with that body.”  How quaint.)  And the Supreme Court has consistently recognized that the power to investigate is a function of Congress’s power to legislate.  But modern politics have changed the way the institution operates, the way it is perceived, and the way the executive relates to it.

The over-sized modern presidency has far greater national stature than even the most high-profile Senator or Representative, and exerts tremendous influence over individual Members, influence that enables the President to dictate the content of national legislation and, often, the path of legislative oversight.  For its part, the modern Congress has contributed to the weakening of its place in the constitutional system.  The “dysfunction” of Congress is a subject well-covered in the literature, and although it is likely the case that many Democrats and Republicans privately enjoy cordial relationships, that privately held goodwill rarely manifests itself in the day-to-day public work of the institution.   The end result is that the venerable institution of Congress appears to be a mere wing of each Party’s national political infrastructure.  And when the majority in either chamber shares the President’s Party, that chamber’s majority appears to be transformed into a mere clerk of the executive.  This persistent quiescence with the executive further weakens the institution and minimizes its public stature.

But Congress can, at long last, fight back.  Oversight and investigation offer a good place to start, because this is an area in which Members from different parties can coalesce in defense of institutional interests.  Congress can also staff up, and increase the budget for congressional staff, so that Congress can compete with the other branches (especially the executive branch) in securing and keeping highly-qualified professionals.  Via our friends at Leg Branch, this recent piece in the Washington Post explains some of the difficulties.

The current controversies have given the Congress the opportunity to revitalize itself, to assert its institutional independence from the President and the dominant Parties.   If it does not (and there are signs that many individual Members are not interested in doing so), it will remain feckless and weak.  Madison and Hamilton were right to worry about the legislature’s ability to absorb the powers of the other departments.  The President, as Hamilton argued, should have tools for his defense.  But the accumulation of power into the executive is no better than accumulation in the Congress.  And Hamilton properly explained in No. 73 that the partitioning of power among the branches also teaches us that the branches should be independent.  Congress does not work for the President — and its Members should not be satisfied with perpetuating the appearance that it does.

 

Can the President commit a crime or an impeachable offense even when exercising constitutional power?

America’s civic education continues.  Although much of what we have endured recently is not particularly good news for the Nation, it should at least be heartening that nearly 20 million people watched the (underwhelming) Comey hearing.  If only that many Americans took such an interest in congressional hearings more generally.

We have also heard lately about the theory of the unitary executive, which some observers have used to explain why the President’s actions with respect to James Comey are neither criminal nor otherwise improper.    Former Speaker Newt Gingrich asserted something like this recently when he said that the President “cannot obstruct justice,” citing the fact that the President is the chief executive  (as others have duly noted, such as in the linked article from The Hill, Gingrich voted to impeach President Clinton on obstruction of justice grounds).  Gingrich’s quote calls to mind President Nixon’s 1977 assertion to Sir David Frost that, “when the President does it, that means that it is not illegal.”

At its core, the unitary executive posits both an obvious textual notion (that the executive power is vested in “a” president) and a structural one (that the president enjoys all executive power and thus controls anyone who assists him in exercising such power).  But the unitary executive model does not really answer two critical questions that have been raised by the Trump-Comey saga: first, when, if ever, does the exercise of constitutional power by the president amount to a punishable crime?; and second, at what point does the exercise of a constitutional power constitute an abuse of such power?  These two questions are at the heart of a distinction that has become lost in the debate over criminality, and that is the distinction between violations of the existing federal criminal law and the political world of impeachable offenses (see my earlier post here).

Because the President has the power to “take care that the laws be faithfully executed,” he has the power to determine who will be prosecuted and investigated.  Therefore, as some have argued, the President had the authority to instruct Comey not to continue pursuing former National Security Advisor Mike Flynn, and doing so cannot be obstruction of justice.  And, the argument continues, because the President has the appointment power, as well as the Take Care Clause power, firing the FBI Director also cannot be obstruction.  I have before elaborated (in the above linked post) upon the obstruction statutes and explained why I think reliance on those statutes is problematic in this case.  But let’s set aside the applicability of the statutes as a matter of statutory interpretation and federal prosecutorial practice, and focus instead upon the question of how far the President’s power extends.  Do his motives matter when exercising his powers?

Suppose, as a hypothetical example, that the President gathered the FBI Director and Attorney General in the Oval Office and gave the following order, pursuant to his Take Care Clause powers: in an effort to root out terrorists, the FBI shall enter and search, without a warrant and without any particularized suspicion, the home of any Muslim living in the United States.  The FBI and AG agree and the order is carried out.  Such action would implicate not just the Fourth Amendment, but also the federal civil rights statute relating to willful deprivations of rights, 18 U.S.C. 242, as well as the civil rights conspiracy statute.  18 U.S.C. 241.  Is the President immune from subsequent criminal prosecution merely because he has the power to direct federal investigations and prosecutions?  Could the President be impeached for issuing such an order, on the ground that even though he has the power to direct investigations, this was a serious abuse of that power?

Let’s take another example.  Suppose the President agrees with a representative of Defendant D that the President will order the Justice Department not to prosecute D for a crime that D has committed.  In exchange for that official act, the President accepts from D one million dollars.  Is this conduct bribery, notwithstanding the fact that the official act for which there is a quid pro quo is a constitutional power vested in the President?  Is it impeachable? (remember that the Impeachment Clause of Article II, section 3 specifically lists bribery as impeachable).

Or, to take the example of another power vested solely in the President — the power to grant reprieves and pardons for offenses against the United States — suppose the President granted a pardon to D in exchange for a payment of one million dollars.  Is the President’s motive for the official act of granting the pardon irrelevant simply because the corrupt motive, and the quid pro quo, are tied to the exercise of a constitutional power vested in the President?

I ask these questions because I think it is important to note that even if we accept the unitary executive model, and even if we believe that directing criminal investigations and prosecutions is a core executive function over which the president should have control, we can still acknowledge that what motivates a President in carrying out that function could still have legal significance.  In my bribery examples, for instance, the power of ordering the DOJ not to prosecute, or the power of actually granting the pardon, are not, without more, the problem; the problem is that those exercises of power were intended to facilitate bribery.  Indeed, because bribery requires an official act, it seems clear from its inclusion in the Impeachment Clause that the Framers understood that a President can still be held legally accountable even when the offense arises from an exercise of official power.

It may very well be that President Trump has committed neither a crime nor an impeachable offense.  But whether he has committed either cannot, I think, depend merely upon whether his action was based on the exercise of a constitutional power.  Perhaps the President’s state of mind matters.  After all, implicit in an “abuse of power” is the existence of an official power that can otherwise be legitimately used.

Which leads to a final point about the distinction between criminality and impeachment.  Much of the attention will fall upon the Special Counsel.  But the congressional investigations here are also important because, unlike the Special Counsel’s investigation (which is criminal in nature), the Congress can gather facts and evidence regarding abuses of power that may not meet the defined elements of a crime or be prosecutable.  The congressional investigative power is at once broader and more narrow than the Special Counsel’s work — Congress cannot criminally prosecute the President, but it can engage in oversight of the executive, which includes the power to impeach and convict.  That distinction is critical if one assumes that a sitting President cannot be criminally prosecuted.  Problem is, would a Republican Congress ever allow impeachment to proceed?  To answer that, we need to take a deeper dive into the existing dynamics of a Senator or Representative’s institutional loyalty to Congress, rather than to the President or the Party.

 

Could the President assert executive privilege to block Comey’s Senate testimony?

Now that James Comey is slated to testify before the Senate Intelligence Committee next week, there has been some speculation as to whether President Trump will try to block Comey’s testimony with an assertion of executive privilege.  To be precise, such an assertion would only apply to testimony involving presidential communications; it would not cover any and all aspects of Comey’s testimony about his work as FBI director, so “blocking” is not entirely accurate.  Though I believe in a robust executive privilege where appropriate, I am skeptical of the use of executive privilege under these circumstances.  Still, I think it is fair to say that we are entering (mostly) uncharted waters next week.

The leading case on executive privilege is United States v. Nixon.  Although it recognized the constitutional dimensions of executive privilege, the Court ultimately found that the privilege is not absolute and rejected President Nixon’s assertion of the privilege.  This, of course, set the stage for Nixon’s resignation, after the House Judiciary Committee had adopted articles of impeachment.  The reasons for the Court’s ultimate decision are instructive.  According to the unanimous opinion by Chief Justice Burger, “when the privilege depends solely on the broad, undifferentiated claim of public interest in the confidentiality of such conversations, a confrontation with other values arises.”  The Court then stated, “[a]bsent a claim of need to protect military, diplomatic, or sensitive national security secrets, we find it difficult to accept the argument that even the very important interest in the confidentiality of Presidential communications is significantly diminished” by requiring in camera review by a federal district court.

Much of the Nixon case proceeds from there to explain why a generalized assertion of presidential confidentiality should yield to the demands of justice in a criminal investigation.  The privilege is rooted in the separation of powers and should ordinarily be accorded deference, but, again, is not absolute.  There is also, the Court acknowledged, constitutional dimension to the need for evidence in criminal cases.  Consequently, the Court held, where the claim of privilege is merely generalized (not specific to a particular military, diplomatic, or national security secret), “it cannot prevail over the demands of due process of law in the fair administration of criminal justice.  The generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial.”

Nixon’s application to the Comey testimony is therefore imperfect, but useful.  Two dimensions of executive privilege, as understood in Nixon, are important in relation to the upcoming Comey testimony: first, the nature of the proceeding; and second, the subject matter underlying a claim of privilege.

Nixon is really about the role of the privilege in criminal cases.  Comey is testifying in a congressional investigation, not a criminal one.  It is not clear precisely how Nixon is to apply in the congressional committee setting.  Because of the constitutional dimension of executive privilege that derives from the separation of powers, and the need to not simply protect the prerogatives of the presidency but also to protect against Congress, to quote Madison in Federalist No. 48, “drawing all power into its impetuous vortex,” there is a natural concern about compelling the disclosure of presidential communications to the legislative branch.

And yet, while executive privilege is constitutionally based, so is Congress’s power to investigate.  Congress has institutional prerogatives, too.  Claims of executive privilege therefore have often conflicted with claims about the need for information in a congressional inquiry; the implications for the separation of powers are obvious.  These conflicts are normally handled through a process of mutual accommodation and compromise by the legislative and executive branches.  Judicial review in such situations is not unheard of, but is rare.  And the Supreme Court has never had occasion to address the matter specifically.

Still, the relationship between this particular congressional investigation and the existing criminal investigation being conducted by the Special Counsel is undeniable, and likely close.  Moreover, although the congressional investigative setting is not strictly criminal, it can display attributes that look much like a criminal inquiry.  Congressional committees must respect legitimate invocations of the privilege against compelled self-incrimination; can grant immunity to witnesses; and have even referred individuals for criminal prosecution.  There is often a Congress-as-Prosecutor quality to congressional investigation and oversight, even though Congress lacks any formal criminal prosecution powers (even inherent contempt is not strictly criminal, though it looks the part).

So while it is tempting to distinguish Nixon by relying upon the formal difference between a criminal proceeding and a congressional investigative hearing (and there is a difference), the nature of this particular hearing and its connection to an ongoing criminal probe in the executive branch suggests that this scenario may be more like Nixon than it first appears.  Nevertheless, there is something to the notion that a claim of executive privilege should be taken quite seriously when the legislative branch is seeking to pierce the deliberative processes of the presidency.

This brings us to subject matter.  To make any assertion of the privilege palatable, the President would likely have to be very specific about the subject matter of his claim — he would have to assert that some military, diplomatic, or national security secret would be divulged as a result of Comey’s testimony, or, at a minimum, that the testimony relates to the decision-making functions of the presidency.  An assertion of privilege is also complicated here by the fact that the President has spoken openly and publicly about his private conversations with Comey.  This also raises the question of whether the President has waived any claim of privilege because he spoke publicly on the subject matter (I personally think this is a dubious argument as it has been couched by some, though it is a stronger argument with respect to testimony about very specific subjects; in other words, public statements about one subject would not necessarily serve as a waiver with respect to all conversations with Comey).

But waiver is not the only concern with respect to those public statements.  Rather, another major concern is that the President has implicated Comey’s own credibility (which Comey should have the right to defend), and has made statements that vaguely suggest, if not criminality, at least the possibility that the President has failed to “take care that the laws be faithfully executed,” as required by Article II.  That is a subject worthy of congressional oversight and inquiry.  Nixon’s concern about an undifferentiated claim of confidentiality conflicting with “other values” therefore seems useful in this context, given what we know about the need for information in this particular congressional investigation and the need to explore the veracity and implications of the President’s own public comments on the matter.

As a practical matter, Comey is likely to prefer to keep his testimony narrow, so as not to compromise the Special Counsel’s investigation.  But to the extent that it could cover his communications with the President, it remains unclear whether the President will attempt to intervene with a claim of executive privilege.  I suspect that doing so would be politically unwise, further contributing to an already damaging “what-is-the-Trump-Administration-hiding-now?” narrative.  Legally, the question is more complicated.  But if the Nixon decision is an authoritative guide in this situation, then that decision, along with the rule of law concerns that animate it, likely militates against recognizing the privilege here, unless the President can show something more than a mere general interest in confidentiality.

Criminality and impeachment after the Comey firing

James Comey is, by all objective accounts, a man of integrity, intelligence, and honor.  Like all of us, he is imperfect.  And like anyone serving the public at a high level, he has perhaps made judgments — in difficult and complicated, even untenable, situations — that are subject to legitimate criticism.  No one questions the President’s power to remove him from his position as FBI Director.  The question, rather, is whether it was appropriate under the circumstances to do so.

If the President’s removal of Director Comey was based on the President’s desire to influence or impede an investigation that he disfavors, and in which he could conceivably be implicated, that raises very serious, but also very complicated, legal questions. (Do not be distracted by the President’s claim that he is not under investigation; though he may not be the target of the investigation, one who is not the target can still become ensnared or implicated in an investigation.  It is difficult to believe that investigators are not also looking — or will not eventually look — into the President’s role, what he knew, and when he knew it.)

Four questions arise: 1) does the criminal law apply to the President when he commits an act that might otherwise be criminal but that is done in the exercise of a constitutional function?; 2) assuming the criminal law would apply, can a sitting President be prosecuted while in office?; 3) assuming the President can be prosecuted while in office, would the Justice Department do so?; and 4) criminality and criminal process notwithstanding, could the president be impeached for his conduct?

I will leave specific responses to the first three questions for a subsequent post, though it is worth noting here that, as some may recall from the legal discussion surrounding the (Bill) Clinton scandals, there is some question as to whether a sitting President can be criminally prosecuted.  Some respected constitutional scholars say no, criminal prosecution must wait until the President formally leaves office (and there is substantial support in constitutional history for this view).  See, for example, Akhil Amar’s work here.  Others say doing so is constitutionally permissible.  But the question I want to next explore is this: if the President does something that is an abuse of his power, or a substantial violation of his presidential duties, or even violates the Constitution, but does not actually violate the criminal law, is impeachment available?

Lots of recent commentary has focused on 18 U.S.C. 1505, one of the federal obstruction of justice statutes.  On its face, it looks like it applies to the President’s conduct.  Problem is, federal prosecutors are instructed, based on decided cases, that an FBI investigation does not constitute a “proceeding” for purposes of this statute.  See USAM CRM 1727. If the President is to be subject to an obstruction statute, it will have to be a different one, say, 18 U.S.C. 1512(c)(3) (but courts are split as to whether an FBI investigation is an “official proceeding” under this statute, and the statute requires that the person act “corruptly” — can the President be acting “corruptly” if he believes in good faith that his action was a legitimate exercise of constitutional power?).  So, proof of criminality in these circumstances is tricky.

This leads to a discussion of impeachment.  Does impeachment require the commission of a crime?

The President, according to Article II, section 4 of the Constitution, “shall be removed from office on impeachment for, and and conviction of, treason, bribery, or other high crimes and misdemeanors.”  Treason and bribery are familiar as crimes (each has a well-established definition in criminal law).  But “other high crimes and misdemeanors” remains vague.  There is a fair amount of scholarship on impeachable offenses and I won’t endeavor to summarize it all here.  But a couple of sources are noteworthy.

Raoul Berger’s terrific book, Impeachment: The Constitutional Problems, concludes that this phrase — “high crimes and misdemeanors” — was drawn not from the English criminal law but from the impeachment of the Earl of Suffolk in 1386.  He explains that use of this standard was necessary because “the objects of impeachment were beyond ordinary criminal redress.”  Whereas “misdemeanors” were private wrongs punishable by the state, “high crimes and misdemeanors” were political offenses, against the state.  Consequently, according to Berger, high crimes and misdemeanors are not derived from ordinary criminal law, but are unique to the impeachment context.

Charles Black’s excellent Impeachment: A Handbook, attempts to clarify the standard a bit by further considering the relationship between criminal law and impeachable offenses.  Black relies upon the ejusdem generis canon to evaluate how “high crimes and misdemeanors” could be like treason and bribery, but ultimately Black appears skeptical of a definition of “high crimes and misdemeanors” that would require actual criminality (though he concedes that most actual presidential misdeeds would also be crimes).  He gives the following examples: a President announces that he will not appoint any Roman Catholic to any office.  This violates the clear command of Article VI of the Constitution, but is it criminal?  Or, suppose a President legally travels to a foreign country and conducts all business from there.  He wouldn’t be committing a crime, but surely his “gross and wanton neglect of duty,” as Black describes it, would be impeachable.  By the same token, merely committing a crime should not subject the President to impeachment, and Black gives a few examples on that ground, too.  In short, the President need not commit a defined crime to be impeached, but even if he does, mere criminality is not necessarily impeachable.

There is, then, substantial historical and scholarly authority for the proposition that a President can be impeached for abuses of office that do not formally constitute criminal offenses.

The problem for this President’s critics, of course, is that — for now, at least — neither criminal prosecution nor impeachment seems likely.

As to prosecution, again, there is the threshold problem of whether any crime has been committed under an applicable statute; the constitutional questions of whether he was simply exercising a constitutional function, and whether it is even permissible to indict or criminally try a sitting President; and even if so, the question of whether Trump’s own Justice Department would do so (which is precisely why the claims for a special counsel have been increasing).

That leaves impeachment, and only the House of Representatives can impeach the President.  Most Republicans in Congress have not exactly been profiles in courage when it comes to asserting their own prerogatives, defending the separation of powers, and resisting the charms of this President.  Efforts to distance themselves from the President have been tepid and ambiguous.  For now, congressional Republicans (generally) appear to be calculating one or both of the following: they need the President politically, and do not want to damage him; and/or, they fear the damage the President could do to them, with his Twitter account or otherwise.  The President, I suspect, knows this, which might explain his brazen, middle-finger-held-high recounting of his interactions with, and firing of, Comey.  He, too, calculates.

I do not contend here that President Trump has committed any offense, criminal or impeachable.  But that is clearly where the public conversation over Comey’s firing is, and where it will continue to go.  I thought some legal context might be helpful as we head — hopefully prudently — down each of those paths.  And I will hope to have more to say on each.  For now, I think much of how this conversation will proceed depends upon who the President selects to head the Bureau.

Can you evade federal prosecution if your heroin distribution is a religious exercise?

From the United States Court of Appeals for the Eighth Circuit, an interesting case on the limits of religious freedom in America, particularly at a time when we are debating the scope of statutes designed to enhance protections for religious exercise.  According to the court’s recent opinion in United States v. Anderson, the defendant (Timothy Anderson) was indicted for violating the Controlled Substances Act and admitted to distributing heroin.  But,  Anderson said, he is “‘a student of Esoteric and Mysticism studies’ who created a ‘religious non-[p]rofit’ to distribute heroin to ‘the sick, lost, blind, lame, deaf, and dead members of Gods’ [sic] Kingdom.'”  Relying upon the protections of the Religious Freedom Restoration Act (RFRA), Anderson argued that his heroin distribution amounted to exercising a “sincerely held religious belief.”  He also said he had no intention of stopping such distribution because to do so would compromise his religious faith.

The Eighth Circuit (correctly) rejected the claim and affirmed the conviction.  That seems unremarkable.  What is remarkable about the case, though, is that the court still required the Government to prove a compelling interest, and the use of the least restrictive means, under RFRA.  It is important, then, to remember the difference between the constitutional standard for religious exercise and the statutory standard that RFRA established.  The First Amendment standard remains governed by Employment Division v. Smith, which says that the Government need not satisfy strict scrutiny as long as it is applying a neutral and generally applicable law, even where the application of that law burdens religious exercise.  Under Smith, there is no question that application of the CSA to drug traffickers would be generally permissible, as having a rational basis.  RFRA, however, added a new layer to religious freedom law, increasing the Government’s burden.

Still, in Anderson, the Eighth Circuit said it had no difficulty finding a compelling interest, holding that “prosecuting Anderson under the CSA would further a compelling governmental interest in mitigating the risk that heroin will be diverted to recreational users.”  The chief ground for the court’s decision, then, was that Anderson distributed the heroin to those who were not sacramental users.  So note that even if Anderson has a sincere religious belief about the distribution of heroin, that belief is not enough to protect him once he distributes the drug to others for recreational use — the compelling interest relates to the end users, not Anderson himself.

Therefore, Anderson’s case is distinct from cases like Gonzales v. O Centro Espirita Beneficiente Uniao do Vegetal, in which the Supreme Court affirmed a preliminary injunction granted to a Brazilian-based Christian sect that uses a sacramental tea (hoasca) during communion.  One of the ingredients in the tea is dimethyltryptamine (DMT), which is a Schedule I controlled substance.  Customs officials intercepted the tea on its way to New Mexico, and threatened the church with prosecution.  But the Supreme Court affirmed an injunction on enforcement against the church, holding that the Government had failed to meet its burden under RFRA.  Consequently, rather than distinguish O Centro based on the comparative dangers of heroin as compared to hoasca (or peyote), the Eighth Circuit in Anderson instead distinguished O Centro on the ground that the heroin was not being distributed for sacramental usage.

What if, though, the end users claimed they were using the heroin for some sacramental purpose?  What if dealers, or co-conspirators in the trafficking, claimed that it was their understanding that the heroin would go only to those who would use it for sacramental purposes?

That, of course, is a very different case, but not one that is entirely unforeseeable. Indeed, the Eighth Circuit cited United States v. Christie, a Ninth Circuit case in which the operators of the “Hawaii Cannabis Ministry” distributed cannabis to its members (apparently, membership was not difficult to achieve).  But in that case, the ministry did not tell members that the cannabis was only for religious use, as opposed to recreational use.  What if it had?  If the Government has a compelling interest in preventing the use of cannabis for recreational, as opposed to religious, purposes, then doesn’t this require a fairly searching inquiry into the nature of the use and the sincerity of the user’s beliefs?  Otherwise, the Government could always simply say that there is a risk that even ostensible religious use would become recreational, and therefore carry its burden under RFRA, in light of Christie’s theory.  Indeed, the Anderson court noted that the district court in St. Louis did not evaluate the sincerity of Anderson’s religious beliefs, but rather assumed the sincerity of those beliefs and applied RFRA.

Is there a meaningful risk that drug traffickers and users will often, or increasingly, employ a religious-based defense to drug prosecutions, based on RFRA?  Probably not.  And even in cases in which RFRA is used as a tool for drug defendants, like Anderson, the Government’s interests in combating drug abuse are likely to carry the day.  Still, it is notable that statutory religious freedom law places the Government in such a defensive posture in serious drug cases.

Hat tip to IJ’s “Short Circuit” for spotting this one.

Helpful commentary on the constitutionality of Syrian airstrikes

Despite the relative popularity of the President’s use of airstrikes last week in Syria, the argument continues as to whether the President’s action was constitutionally problematic.  The Congress has not debated, much less approved, a new authorization for force in Syria, whether against the Syrian government or ISIL (and it is notable that we have now taken hostile action against both sides of the conflict there).  And there is no question that the President could not rely upon the existing AUMFs for last week’s airstrikes.  Therefore, his only reservoir of power for this action is Article II of the Constitution.  The President’s report to the Congress pursuant to the War Powers Act is here.

The folks at Lawfare have typically excellent commentary on the matter.

John Bellinger’s piece on the War Powers Report is here.

Andrew Kent’s piece is here (with a good discussion of originalist views on war powers allocation).

Jack Goldsmith’s piece is here.

If the President has a longer-term military strategy in Syria, his ability to engage there without approval from Congress is, legally, probably substantially limited.  But because a federal court is unlikely to police the allocation of constitutional war powers, it is for Congress to defend its own prerogatives.  Even without seeing a plan from the President, Congress should long ago have been debating the American military role in the Syrian conflict, or, at a minimum, the scope of presidential powers to attack ISIL.  As long as Congress remains silent, however, it will continue to send a signal to this and other Presidents that it acquiesces in any military action.  It is possible that members of Congress are reluctant to take a position on the use of force abroad, fearing being stuck with their vote if the mission goes poorly.  But the use of American military force — and the blood and treasure of the American people — is not a matter on which the legislative branch should be perpetually silent.

 

Lexi Thompson, finality, and fairness

The United States Golf Association is currently engaged in an ongoing conversation about “modernizing” the Rules of Golf, with several important changes being proposed.  That project is not set to take full effect until 2019.  But those changes cannot come soon enough.  And what happened Sunday in Rancho Mirage proves why.

Lexi Thompson led by two strokes in the final round of the ANA Inspiration (for folks like me, this will always be the Dinah Shore event), a major tournament on the LPGA Tour, played at beautiful Mission Hills.  Playing her back nine, she is approached by LPGA rules officials who inform her that she is being assessed a 4-stroke penalty for playing her ball from the wrong position and for signing an incorrect scorecard . . . the previous day.  An intrepid viewer sent an email to the tournament committee claiming that Thompson, during Saturday’s round, failed to place her ball back on the green in the exact location that she had marked it.  That is a rules violation, as every golfer knows. And it cost her two strokes.  She was then assessed another two-stroke penalty for signing an incorrect scorecard (because her score for that hole did not include the two-stroke penalty for playing from the wrong position).  Consequently, a two-stroke lead on Sunday became a two-stroke deficit.  To her credit, she handled to matter with grace (and some obvious disbelief), battling back to tie for the lead.  She later missed an eagle putt on 18, sending the tournament into extra holes.  She lost in the playoff by one shot.  Golfweek story here.

The question is not whether Thompson violated the rule.  The video evidence shows rather clearly that she did, albeit unintentionally.  The question is whether the rules officials should have enforced this violation on Sunday, during the final round.

The obviously correct answer, from an official perspective, is yes, they should have.  The argument is this: the tournament was still ongoing, and once the officials learned of the violation — not inconclusive by any means — they had an obligation, in fairness to all competitors, to enforce the penalty.  See Rule 33-1.b.  Now here’s why that obviously correct answer is subject to question.

Consider the law’s principle of collateral estoppel, roughly, the idea that once an issue is decided in litigation, a party is precluded from raising it again.  A similar, or analogous, principle seems to apply in Thompson’s case. While it is tempting to say that matters of this kind are reviewable until a tournament is closed — consistent with existing Rule 33-1.b. — this ignores the structure of golf tournaments, which are divided into distinct rounds.  Each round, particularly the third and final rounds, has implications for the next.  A player does not submit a scorecard for the entire 72-hole event at once. Rather, she submits a scorecard at the close of each round.  Just as a tournament is closed after 72 holes and a winner is crowned, so, too, does each round close after all players have completed those 18 holes, submitted their cards, and had their scores posted.

A tournament committee should be precluded (estopped, even) from altering or modifying the scores once all play has been completed in a given round.  Once a player’s card has been submitted by his scorekeeper, attested by the player, accepted by the tournament committee, and then posted, this constitutes a final determination — and an implicit agreement between the tournament committee and the player — that the player’s score is accurate.  If there is any question about the accuracy of a player’s score, the tournament officials need not post the player’s score, and the player certainly should not sign and submit her card if questions about her score remain.  But once the card is accepted and the score is posted, the tournament committee is now precluded from essentially relitigating the issue of the correctness of a player’s score.  The player, by this point, has a right to rely on the acceptance of the card and the posting of her score, which ought to be treated as a final determination.

The rationale for this?  Finality and fairness.  First, finality.  As in law, golf tournaments, and each round thereof, benefit from finality.  The finality of scores in a given round (say, the third round of a 72-hole tournament) determines the pairings for the next round; determines which players hold which positions on the leaderboard; and determines a player’s strategy for the final round.  By upsetting scores in the way that the LPGA did yesterday, the rules officials upset the finality of scoring from the previous round and create both strategic and psychological consequences for many other competitors, not just the player who is assessed the penalty.  That would not happen if players could rely on the finality interest created by acceptance of their cards and posting of their scores.

This leads to, and overlaps with, the fairness rationale.  While it seems that fairness might dictate imposing the penalty, arguably, under these circumstances, fairness might actually cut the other way.  It is arguably unfair to tell a player on Saturday evening that her card has been accepted as correct and that her score has been posted, only to tell her on Sunday that, it turns out, that determination was wrong after all.  Otherwise, players must be forced to go into each new round not certain that their score from the previous round will hold up.  Why, then, submit a scorecard to the tournament committee at the close of each round?  Why post Saturday’s scores?  Fairness to all competitors requires not just an abiding conviction that the rules are being followed, but also an abiding conviction that they can rely upon representations made to them by the folks who run the tournament.

I suppose these rationales may have less force if there is evidence that a player has deliberately violated a rule to gain a competitive advantage.  But there is no such evidence in Thompson’s case.  The ball may have been misplaced, but by all indications, doing so was unintentional, and it gave her no advantage over her competitors. And, to be sure, the tournament committee was placed in an untenable position here — the committee had no reason to know of the violation when they posted the Saturday scores, and no one believes that informing Thompson of the penalty was enjoyable work.  And surely no one wants the winner of a tournament to do so with the benefit of a rules violation that would have affected her score.  But the rationale for modifying a score on Sunday is no different than the rationale for modifying a score on Monday, or Tuesday.  If we can create a rule for protecting the integrity of a player’s score after the tournament has closed, surely we can create a similar rule for protecting the integrity of a player’s score after each round. And doing so might also have the added advantage of discouraging armchair officiating from television viewers.

Perhaps the USGA’s modernization effort would not address this or many other controversies arising under the often complex, and not always sensible, Rules of Golf.  Still, golf’s governing body should consider ways to mitigate the problem created by yesterday’s events — a player being interrupted while leading a major championship to be informed of a penalty imposed for an unintentional mistake on the previous day, after her scorecard had been accepted and her score posted, and that could not possibly have given her an unfair advantage.  Perhaps the law, as it often does in sports, could offer some guidance.