Author: Brian Kalt


Human Regress

This is my final post here, so I wanted to end with something curmudgeonly and not particularly law-related.

Human progress is undeniable, but equally undeniable is that progress makes us arrogant. We overlook the losses than accompany our gains, and we needlessly sacrifice hard-won knowledge and experience. Here are three random examples.

Fruits and vegetables aren’t nearly as nutritious as they used to be.

You multi-taskers out there are succeeding only in doing multiple things badly and wrecking your brain while you’re at it.

And finally (crude language warning), people have forgotten how to sleep, breathe, brush teeth, sit down, give birth, bathe, and poop the right way.

On an even more random note, though, people are still pretty cool.


Obama Releases Long-Form Birth Certificate

Here it is.

Nothing to see here—nothing significant that wasn’t on the COLB that was released long ago. But it is the nature of such things that many people who staked so much on things not turning out this way will not change their world views overnight. When people declare that the world is coming to an end on May 4, 2010, and then it doesn’t, they typically do not say “wow, I guess I was wrong.” Instead, they are prone to revise. “Oops,” they say. “I forgot to carry the two. The world is actually ending on May 4, 2012.”

So expect to see the issue die down a fair amount, but for the truly hard-core birthers (and there are plenty of them) to continue on. They will claim that this document is fraudulent, photoshopped, etc. They will move on to other aspects of their story (say, that President Obama lost his citizenship when he lived in Indonesia). To understand all of this—why intelligent people buy in to such theories, you should check out my friend Jonathan Kay’s new book, Among the Truthers: A Journey Through America’s Growing Conspiracist Underground. It examines all of this, with regard to Truthers, Birthers, and such.


Congress and the Ninth Amendment

An idea I have been kicking around for about twelve years now, and should finally be writing down this summer: Congress and the Ninth Amendment. I have a lot of dimensions of this question to hunt down, but I am very open to thoughts and suggestions from anyone.

Congress is talking about the Constitution more these days, and that should be good news for Democrats and Republicans alike.

The House’s new Republican majority now requires that proposed legislation include a statement of constitutional authority, identifying which of Congress’s constitutional powers the legislation is based on. This forces both sides to think about, and publicly debate, the proper scope of federal legislation, which is supposed to be directed only at the items (like interstate commerce, defense, etc.) listed in Article I, Section 8 of the Constitution.

Some critics deny that interpreting the Constitution is any of Congress’s business. “It’s the courts’ job,” they say. But the Founders expected Congress and the president to consider the Constitution before passing laws. It worked for a while; many of the greatest constitutional-law arguments in the nation’s first century played out in Senate debates and presidential veto messages, and not in the Supreme Court. Gradually, however, Congresses and presidents relinquished their share of the responsibility. Often now, courts not only get the last word on the Constitution, they get the only word. But the original vision is surely more protective of the Constitution, just as it is healthier to brush and floss your teeth than it is to delegate things entirely to your dentist.

Liberals are understandably unenthusiastic about debating the constitutional bounds of federal power—a debate they thought they won decisively back when Franklin Roosevelt was president. But they (along with conservatives, libertarians, and everyone else) should be excited about a parallel opportunity: to debate the constitutional bounds of rights. In particular, Congress can finally give meaning to the Ninth Amendment.

The Ninth Amendment declares, “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.” In other words, listing some rights in the Bill of Rights doesn’t weaken the unlisted ones. The Supreme Court has never done much with the Ninth Amendment. Unenumerated rights are by definition difficult to identify—there are many theories, but no consensus, on what these Ninth Amendment rights are. Even when the Court concludes that a new right exists, it resists calling it unenumerated, instead contorting the law to find it somewhere in the Constitution’s text and its penumbras.

The Ninth Amendment has much better potential in Congress. Its message is important there, even if it has been forgotten: do not read the Bill of Rights as an exclusive list, with any sort of government action permitted as long as it is not specifically forbidden. This is particularly powerful when combined with Congress’s renewed determination not to leave constitutional interpretation solely up to the courts. Instead of Congress asking only, “Would the Court strike down this law on First Amendment grounds? Second Amendment? etc.?”, it can also ask “Do we think that this violates free speech? Gun rights? Any rights not specified in the Constitution?” The Court will still get its chance to weigh in on a law’s constitutionality, but only if Congress and the president first conclude that the law is constitutional and pass it.

Take privacy as an example. Instead of just dissecting (or ignoring) the Court’s complicated privacy jurisprudence, Congress should make up its own mind on what privacy is all about, and on which government actions cross the line. The debate on one potentially intrusive law could pick up where the last one left off. The public would benefit from hearing what its representatives and senators truly think about privacy, and could keep it in mind when the next election comes along.

There is something here for everyone: the right to abortion and the right to life; the right to health insurance and the right not to have health insurance; the right to class equality and the right to purely individual treatment. Making these things a matter of congressional debate—of shifting political majorities and public opinion—admittedly means that any such rights are weak, and potentially reversed by shifting political whim. But lately, that’s how rights often get treated in court too. This sort of flexibility is unsettling there, but at Congress it is right at home. Besides, since by definition these are rights the Court is not protecting right now, proponents of the right would have nothing to lose.

The Ninth Amendment helps us remember that there is more to rights than what courts write about them, or even than what the Constitution says about them. The more that Congress elevates its discussion about the proper bounds of government power and individual liberty—and the less that those things are left to the sole discretion of our courts—the better off we are.


Two People Claiming the Presidency: Part Two

As a general matter, constitutions are left vague and flexible. But presidential disability and succession rules are no places for that. They should be certain and swift—there should never be doubt about who the president is at any given moment.

Unfortunately, one part of the Twenty-Fifth Amendment is easy to misread, and could lead to a serious problem. No, I’m not talking about the typo in the amendment (ten points to the first commenter who spots it). I worry about something more harrowing. Consider this scenario that opens Chapter 3 of my upcoming book, Constitutional Cliffhangers: A Legal Guide for Presidents and Their Enemies:

Frances Philips is halfway through her second term as president. Her management style, which was always “hands off,” has become downright lax. She skips meetings, neglects decisions that need to be made, and shows little interest in being president. Some members of her cabinet and staff worry that she is clinically depressed, but—swayed by the increased power that comes with having a figurehead for a boss—none of them does anything about it.

Then President Philips starts alternating her periods of utter inertness with bursts of aggressive and arbitrary micromanagement. At a cabinet meeting, she rants for ten minutes about the use of blue pens instead of black ones. Next, without explanation, she announces that she is killing a carefully developed policy initiative in which she had previously taken no interest.

Several cabinet secretaries become convinced that the president is unable to perform her job. They start to discuss Section 4 of the Twenty-Fifth Amendment, which allows the vice president and a majority of the cabinet to declare the president “unable to discharge the powers and duties of [her] office,” and transfer power to the vice president. Crucially, though, Vice President Merrick opposes the effort. Although he worries that President Philips’s mental condition is deteriorating, he is reluctant to lead what could be perceived as a coup.

Things come to a head when war unexpectedly breaks out in the Middle East. After hearing the initial reports, President Philips paces in the Oval Office, muttering to herself but issuing no orders and taking no action. After several excruciating hours pass like this, Vice President Merrick has had enough, and he gathers the cabinet to file a Section 4 declaration. He is joined by a solid majority: eleven out of fifteen cabinet members.

President Philips is blindsided, but her chief of staff Tom Cooper (who Merrick erroneously thought would support the Section 4 declaration) is not. When Philips asks what her options are, Cooper reads to her from Section 4: if the president sends a counter-declaration to Congress that “no inability exists,” she can “resume the powers and duties of [her] office.” Cooper notes, however, that Section 4 allows the vice president and cabinet to reassert the president’s unfitness within four days, sending the matter to Congress for a final decision, and giving power to the vice president in the meantime.

With renewed focus, Philips executes Cooper’s plan. First, she signs a letter declaring herself fit and transmits it to Congress. Next, she summons the cabinet and addresses the eleven mutinous members: “If you don’t think I can discharge the powers and duties of my office, watch this. You’re fired.” Finally, she replaces them, naming eleven of her most trusted subordinates as acting cabinet secretaries.

In response, Vice President Merrick rallies the old cabinet, and he and the original eleven challengers sign a second declaration of Philips’s disability. Merrick claims that Philips has misread Section 4: Philips never retook power, her firings are invalid, the second disability declaration is valid, Merrick is the acting president, and Congress must now step in. Unfortunately, as advised by Chief of Staff Cooper, Philips refuses to back down. She says that she is in control, with the unanimous support of the “legitimate” cabinet, and that Congress has no basis to act.

The nation is in crisis. There are two presidents and two cabinets. The situation in the Middle East is spinning out of control, and nobody knows for sure who the rightful commander in chief, secretary of state, and secretary of defense are. Congress assembles while dueling sheaves of legal pleadings and memoranda flood the federal courts.

There is no question that the president’s interpretation is wrong in this scenario. The legislative history is as clear as legislative history can be. But my chapter gives some reasons to worry about misunderstandings here:

[I]n any Section 4 dispute, tensions would be high and time would be of the essence. In quieter times, the administration probably would have prepared Twenty-Fifth Amendment contingency plans, but in an internal struggle like this any such plans could go out the window. The plan would likely focus on direct issues (like assessing medical evidence) anyway and provide little guidance on the arcane constitutional wrinkles at the heart of this chapter. For the unschooled players at the heart of the controversy, the text of Section 4 would be the easy and obvious place to look for answers. The legislative history would not be.

As an example of how limited knowledge can be, and how hard it can be for law to be followed in a crisis, consider the immediate aftermath of the shooting of President Reagan in 1981. The administration was unprepared to discuss transferring power, and “the men gathered in the Situation Room [did not] know what action they were authorized to take or expected to take.” Away from the White House (and to no effect), lawyers in the Justice Department studied the legislative history of the Twenty-Fifth Amendment as President Reagan was in surgery. Reagan’s White House counsel subsequently prepared a formal disability plan—something all administrations since then have done as well—but nothing is guaranteed. In our case, even though lawyers somewhere in the administration might study Section 4’s legislative history, the president’s inner circle might not rely on (or even trust) those lawyers any more than they did in 1981.

In the chapter, I provide multiple examples of people in reputable positions who misinterpreted Section 4 the way my hypothetical president did.

Aside from the specifics of this “constitutional cliffhanger,” I think that it is very interesting that even with all of the incentives to draft the amendment carefully, and all of the care that the drafters actually took, this still slipped through. Earlier versions of the amendment were phrased much better on this point, leaving no doubt about who was in charge. Then it got changed to the current version. Part of the reason: this was during the 1960s, perhaps the high-water mark for confidence that a statement of legislative intent would be consulted by courts as though it were part of the final text.

There are some easy solutions here. While presidents cannot bind their successors, they and their legal staffs could do more to ensure that the proper interpretation of Section 4 is well known to anyone in a position to invoke it. My book won’t be out for a little while, but it is nearly finalized. In other words, there is plenty of time for the key players here to do the right thing, and mess up my book in ways that would be expensive to fix. It’d be worth it, though.


Worrying About the Presidential Succession Law

Legal scholars have complained for many years that the current presidential succession statute, passed in 1947, is unconstitutional.

The main complaint is that the Constitution’s Succession Clause empowers Congress only to place “officers” in the line of succession, and the Speaker of the House and the President Pro Tem of the Senate (whom the statute places second and third in line, respectively) are not “officers” as the Constitution uses the term.

There are other practical complaints too. Nowadays, the Speaker is usually not a member of the president’s party, and the President Pro Tem is usually very, very old. Both are members of the legislative branch, and not as well positioned as the secretary of state (next in line after them, but able to act as president only until there is a Speaker or President Pro Tem willing to bump the secretary of state) to step into the presidency.

The original succession law, passed in 1791, also had these problems (though the President Pro Tem was second in line, and the Speaker third). It also drew complaints about its constitutionality. The second succession law, passed in the 1880s, left congressional leaders out, specifically because of the constitutional issue. When the third law passed in 1947, the constitutional argument was not debated seriously.

The constitutional and policy arguments are sketched out pretty well by others, ranging from James Madison to Clinton Rossiter to Akhil Reed Amar. I can get into them in more detail in a future post if people want to debate them. The thing that interests me most is how this argument might actually become relevant.

Consider the hypothetical scenario that opens Chapter 4 of my upcoming book, Constitutional Cliffhangers: A Legal Guide for Presidents and Their Enemies (and please note that this potentially problematic situation does not relate to the current [Democratic] president and [Republican] Speaker any more than it did to the previous [Republican] president and [Democratic] Speaker, who were in office when I first drafted the chapter):

The United States is deeply divided over the war. Everyone agreed that we needed to fight back when Ruritania attacked our bases, but after two years of intensive combat, things are not going well. Addressing the nation, President Joanna Lewis announces her intention to seek a negotiated settlement. The half of the country that agrees with her breathes a sigh of relief.

The other half boils with rage. Responding to the president, Speaker of the House Peg Wilton says, “We are losing this war—not because our cause is hopeless, but because we have a cowardly commander in chief. We should never surrender to fascist aggression.” “Coward” is a mild epithet compared to what other hawks call President Lewis.

Complicating matters is that a few weeks ago, the vice president suffered a fatal heart attack. President Lewis nominated a candidate to fill the vacancy, but the hawks in Congress have stalled the vote. They are motivated by their distaste for the nominee’s unsurprisingly dovish position on the war, but everyone notices that while the vice presidency is vacant, Speaker Wilton is next in line for the presidency (followed by the president pro tempore of the Senate, and then members of the cabinet, starting with the secretary of state).

As President Lewis arrives at a public event one morning, an assassin detonates a huge bomb, killing the president and dozens of others. In a homemade video produced before the assassination, the bomber decries “the coward Lewis” and announces his intention to kill Lewis so that the stalwart Wilton will become president and continue the war. Within two hours of the assassination, the video has saturated television and the Internet.

The assassin seemingly gets his wish. Wilton condemns the assassination in the most strident terms, obviously, but she takes an oath of office that morning as acting president. Her political position is tenuous. Supporters of the martyred President Lewis blame Speaker Wilton for fueling the rhetoric that led to Lewis’s assassination, and for her role in stalling to keep the vice presidency vacant. In other words, they feel as though the country has just suffered a coup d’état. They latch onto a legal argument that, just hours earlier, had been an academic one: that it is unconstitutional for the succession law to include members of Congress. Wilton’s opponents argue—with the support of several prominent legal experts—that the dovish secretary of state Allen is the legitimate president.

Secretary Allen decides to contest Wilton’s claim to the presidency. He too takes an oath of office as acting president and, without using force, Allen assumes physical control of the White House. “The struggle over our war policy has been ugly, but it’s a political struggle,” he says in a national address from the Oval Office. “In America, we don’t settle political questions by mass murder.”

It has only been twelve hours since the assassination—a shocking and surreal day. No violence has broken out yet, but it feels like only a matter of time before it does. No one is in the mood to compromise, and control of the government and the military hangs in the balance as Allen and Wilton vie for control.

In the rest of the chapter, I concede that if the succession law kicked in and the Speaker took over under peaceful, uncontroversial circumstances, the unconstitutionality of the law would probably never be challenged. The general public would accept the result. Those that did not would either lack standing to challenge the succession law, or (like the secretary of state, who would have standing) would lack the political and personal will to do so.

But in a situation like the one in my opening scenario—involving not just conflicts of interest but conflicting claims to the presidency—the country could be in real trouble. The benefits of Speaker succession, such as they are, do not warrant taking this needless risk. And I say “such as they are,” because the benefits proffered (that the Speaker is a top elected official, representing the whole country, while cabinet members are mere appointees) don’t amount to much in my view. Again, this is not about the current occupants of these offices—party control switches often enough, and indeed has done so just while I have been writing my book.

Whoever is in charge in the White House and the Capitol, Congress should swallow its pride and take its leaders out of the presidential line of succession.


Tim Geithner and Tom Daschle Are No-Goodniks

I have enjoyed my visit at Concurring Opinions, but alas, my time is up and this will probably be my last (and maybe least) post.

I am one of those who is irked by the Timothy Geithner and now the Tom Daschle tax controversies. Geithner avoided paying tens of thousands of dollars in self-employment taxes. Then he paid back the part that he was forced to. Then, when his nomination as Treasury Secretary loomed, he paid the rest of it. And he wasn’t straightforward about his reasoning for the timing of all of this. Wags took the opportunity to argue that we need to reform the tax code, to make it simple enough that even the Treasury Secretary can follow it. Geithner was confirmed, apparently because none of the candidates who paid their taxes correctly were good enough for the job.

Now, Tom Daschle is facing similar issues. Nominated for Secretary of Health and Human Services, he amended his last three years’ worth of tax returns. Upon further reflection, he realized that he had failed to report hundreds of thousands of dollars in income, and that he shouldn’t have claimed some of the deductions that he took. He wrote a check for $140,000 and is now hoping for the best. It apparently wasn’t very challenging to get it right the second time around; why couldn’t he have had his “people” be equally careful in the first place? The most obvious reason is that nobody was watching then.

I agree with the idea that you can gauge how ethical someone is by how they behave when they think nobody is watching. Given the difference between how Geithner and Daschle behaved before and after people were watching, I think that they both fail the test.

I’m in a self-righteous mood about this right now, because I am doing my taxes this week and I found some old mistakes.

Read More


The Best Way to Give D.C. a House Seat Is Also the Only Way

Professor Rick Hasen has a piece up at Slate on the D.C. Voting Rights bill. He says that the bill—which would give D.C. residents a voting member of the House of Representatives—is “probably unconstitutional,” but that “Congress should pass it” anyway. That’s what the Washington Post editorial board thinks too, saying that Congress should leave constitutional-law debates to the courts and do what is right. They agree with Rep. Steny Hoyer that “the case should be made on principle, not technicalities.”

Since when is adherence to the Constitution a technicality, and not a principle? I agree that D.C. residents deserve representation, and I would support a constitutional amendment to give them some (or perhaps to let them go back to being part of Maryland). But I think that an amendment is necessary, because the Constitution limits the House to members from “the several states,” and D.C. is not a state.

To me, Hoyer’s dismissal of the Constitution—as a technicality to be brushed aside—is the opposite of principled. This country is not better off when it encourages members of Congress to abdicate their responsibility and their oath to support the Constitution. Our belt-and-suspenders system is supposed to give us multiple lines of defense against unconstitutional laws: the House, the Senate, the president, and the courts are all supposed to agree that a law is constitutional before it can be used. Leaving it to just the courts is like taking off the belt and one of the suspenders, and having the remaining suspender be very loose. I would very much prefer to keep America’s pants on.

Read More


The Federal Overseas Voting Law (UOCAVA) Is Unconstitutional

I live in East Lansing, Michigan, and I vote in federal and state elections accordingly. If I were traveling, working, or even living overseas temporarily, I would still vote in East Lansing, Michigan, as an absentee. Being away for a bit, without giving up my permanent Michigan residence, would not deprive me of my vote.

But say that I move overseas, with no intention of ever returning to the U.S. I sell my house in East Lansing. I burn my Michigan driver’s license. I forswear ever drinking Vernors again. I have no contact with anyone back home, and I don’t pay any taxes there. I cannot vote in state elections, because I’m not a Michigander anymore. But under the federal Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA), I can still vote in federal elections, for the rest of my life. Despite my utter lack of ties to my old home, UOCAVA requires Michigan to let me vote as though I still lived in the Eighth District of Michigan. I can vote for U.S. representative, U.S. senator, and for president as though I were a Michigan resident.

Not only is that weird, it’s unconstitutional.

Read More


Line of Succession Teaching Moment

I saw this story this story about Defense Secretary Robert Gates being kept away from the Inauguration to preserve the line of succession in case of a “Mars Attacks” scenario. After seeing a couple of confused comments elsewhere on the internet, I thought I’d blog some basics about the line of succession.

The Constitution specifies only one member of the line of succession: the vice president. It empowers Congress to use ordinary legislation to provide a longer line of succession (“the Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President”). Currently, the line of succession runs to the Speaker of the House, the President Pro Tem of the Senate, and then the Cabinet, in rough order of the establishment of their departments. Acting secretaries and people who aren’t eligible to be president are skipped over.

The inclusion of the Speaker and President Pro Tem is very likely unconstitutional. Because the line of succession is supposed to consist of “officers,” a designation that most people agree does not include members of Congress (who in fact are barred from being officers while in Congress), the line of succession should not include them. The statute in place between 1886 and 1947 included only the cabinet, and so avoided this issue.

Because the line of succession includes officials who are sometimes inclined to all be in the same place–at inaugurations, or at the State of the Union address, for instance–one person in the line is traditionally kept away from such gatherings. That is why Secretary Gates won’t be at the inauguration.

I saw some confused conspiracy theories online expressing suspicion about having the only Republican* in Obama’s cabinet in this role (one example: “I’m not ‘onboard’ with picking the only Republican, especially not given what this Republican junta has done.”). But Gates is a perfect choice. The conspiracy theory rests on the notion that the alternatives to Gates are Obama cabinet members like Hillary Clinton and Timothy Geithner. But until they are confirmed–and they won’t even be nominated until after President-Elect Obama takes over at noon–they are not in the line of succession. The Bush cabinet is. Condi Rice, Michael Mukasey, and all the rest will still hold their offices until their replacements come in (assuming that they don’t resign and let their deputies run things for a few days). As a result, Gates–who Obama is keeping on–is the perfect candidate. He might not be the conspiracy theorist’s favorite member of Obama’s cabinet, but he is the only one who has been confirmed already.

* It has been reported that Gates is not a registered Republican. And Ray LaHood, Obama’s nominee for Transportation, is a Republican.


Presidential Trivia Tidbits

On Inauguration Day, I thought I’d cross-post some trivia tidbits that I blogged after Election Day at

Obama will be the first president in U.S. history whose last name ends in a vowel other than E or Y. He is, not surprisingly, the first Barack to appear on a presidential ticket. Joe Biden is the fourth Joe/Joseph, but the first successful one.

While Barack Obama is tall at 6 ft. 1 in., that is only enough to tie him for ninth place in presidential history. His wife Michelle, however, will be tied for first place as the tallest first lady—like Eleanor Roosevelt, she stands 5 ft. 11 in. tall.

President John F. Kennedy was the first Catholic elected to national office in the U.S. There have been other Catholics on national tickets—Al Smith (1928) and John Kerry (2004) for president; Bill Miller (1964), Ed Muskie (1968), Sargent Shriver (1972), and Geraldine Ferraro (1984) for vice president—but they all lost. Vice President-Elect Joe Biden is Catholic, though, so the string of Catholic losses is now over, and John F. Kennedy is no longer the exception that proves the rule.

Barack Obama’s father was Kenyan, and of Luo ethnicity. Luo Kenyans, disgruntled over fraud in the recent presidential election that they say deprived their candidate, Raila Odinga, of a victory, have noted how ironic it is that the U.S. will have a Luo president before Kenya does.

Obama will represent a third consecutive term of Harvard-degreed presidents (Bush has a Harvard M.B.A.). He will end the record five-term streak that Yale had been running (both Bushes went to Yale as undergraduates; Bill Clinton went there for law school), and which Hillary Clinton would have extended. Obama is the second Harvard-trained lawyer to become president; the first was Rutherford Hayes. This ties Yale Law School (Presidents Clinton and Ford).

Barack Obama is the first Democrat to win a majority of the popular vote since 1976. He is only the fourth Democrat in the party’s entire 180-year history to be elected with more than 51% of the vote.

When a president does not run for reelection, it is difficult for his party to keep control even in the best of times. Since World War II, only Ronald Reagan has managed the feat. Presidents Truman, Eisenhower, Johnson, Clinton, and now Bush have all been succeeded by members of the opposing party.