Category: Rights

The Right to Withhold Consent: Legislator Standing and the Emoluments Clause

When CREW launched its emoluments lawsuit back in January, I—among others—wondered whether the plaintiffs’ standing theory would hold up in court.  At the time, I floated a different approach: “Why not add a Member of Congress as a plaintiff for a backup standing theory?  (i.e., ‘I have a right to vote on consent?’)”  Five months later, almost 200 Members of Congress have filed a lawsuit demanding precisely that.

While nonprofits, hoteliers and restaurant groups, and State Attorneys Generals have already brought claims, the congressional plaintiffs bring three new vital elements to the mix: a specific right provided in the text of the clause, a claim that aligns with the purposes of the clause, and an administrable and ministerial judicial remedy.

The Foreign Emoluments Clause prohibits the President, “without the consent of the Congress,” from “accept[ing] any present [or] emolument . . . of any kind whatever, from any king, prince, or foreign state.”  The purpose of the clause is to prevent foreign influence and corruption of our government, and the clause fulfills this purpose by subjecting any benefits flowing from foreign states to U.S. officials to a process of explicit congressional approval.  By preventing any emoluments from being received unless and until consent is provided, the clause provides a default protection against foreign influence absent positive approval by Congress.

The unique positive nature of the textual requirement establishes an individual right in Members of Congress to provide or withhold consent.  And, by requiring congressional approval before emoluments are formally received by the executive, the Constitution sets out specific structural constraints to ensure accountability and transparency.  Just as the Constitution’s “advice and consent” provisions play a critical structural role in the separation of powers, the Foreign Emoluments Clause protects public interests and individual liberties by mandating certain procedural checks and balances.

The positive nature of the structural consent requirement also demonstrates why the clause does not present a “political question.”  As Joshua Matz has ably pointed out, the argument that Congress may take action if it so desires—and therefore no judicial remedy is permitted or required—would “rewrite and invert” the clear textual command of the clause.  The clause’s default setting in the absence of congressional action is to prohibit the acceptance of emoluments, not permit them.  Congressional inaction creates an absolute constitutional bar.

The congressional lawsuit also reflects a close fidelity to constitutional principles when one considers the implied cause of action, the relevant zone of interest, the potential remedies available, and the separation-of-powers questions raised by judicial intervention.  However much hoteliers may be harmed by (and have standing due to) unlawful competition, no one has argued that the clause was included in the Constitution because the Founders were worried that the President of the United States might undercut the wine sales and conference bookings of his fellow citizens.  As such, one might argue (as the DOJ has) that an implied cause of action should not arise in such circumstances.  Nor might federal courts feel particularly comfortable as a remedial matter ordering the President to rearrange his financial affairs in a particular manner or making delicate substantive judgment calls about which emoluments pose a threat of corrupting foreign influence.

Yet, the Founders did create a mandatory mechanism to protect the public at large from these threats, and the remedy is to protect the procedural right of legislators to grant or withhold consent. Thus, as far as remedies are concerned, the courts need only define “emoluments” and prohibit the president from receiving them absent congressional approval.  A benefit meeting the definition could be held in trust until an affirmative vote of Congress allows the President to “accept” it.  Thus, the injunctive relief would be strictly ministerial and administrative, with sensitive political judgments reserved for the legislature.  Such an approach would vindicate the rights granted to Congress, adhere to the structural balance struck by the clause, and protect the purposes for which the clause was adopted while ensuring that the judiciary did not intrude upon the proper executive or legislative domains in the process.

The Foreign Emoluments Clause fulfills critical public purposes through a mandatory process designed to ensure transparency and accountability through structural constitutional requirements.  These checks and balances create a default prohibition on the receipt of foreign emoluments in the absence of congressional consent.  Individual Members of Congress possess a constitutional right to provide—or withhold—that consent, and if the Constitution’s default prohibition is being violated in the interim, those Members should be able to seek a judicial remedy.  The lawsuit filed today would provide just that.

Cooper v. Harris: Proxy Battles & Partisan War

Those fighting for a more inclusive and representative democracy would do well to look past the headlines about this term’s election law cases.  A sobering trend seems to be unfolding: a good result splashes across the news—monster voter suppression law dies!—only to be replaced with a slow realization that the retreat may be less of a rout and more of a retrenchment.

So it may be with yesterday’s decision in Cooper v. Harris.  The Twitter-sized takeaway is a mixed bag: Good short-term result and good clarification of the law on “race-as-a-proxy-for-politics”; bad dicta on partisan advantage and bad signaling for future partisan gerrymandering cases based on Kennedy’s place among the dissenters.

The cause for caution is that this trade-off (more clarity on proxies, less clarity on partisanship) provides helpful tools for fighting yesterday’s proxy battles but may not help bring the larger partisan war to a close.  The racially gerrymandered map at issue in yesterday’s case, for example, was replaced by the North Carolina legislature with a partisan gerrymandered map over a year ago.  Unless the Court takes a strong stand on partisan gerrymandering next term, meaningful racial and political representation will remain at risk.

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Is Bethune-Hill a Major Voting Rights Victory or the Next Northwest Austin?

On March 1st, the Supreme Court issued its decision in Bethune-Hill.[1] While the Court’s decision to remand eleven of the twelve Virginia legislative districts wasn’t too surprising given Kennedy’s skeptical tone at oral argument, what was surprising was the virtually unanimous acclaim from the election law community.[2] Taking a page from Stephen Colbert, the only question seemed to be whether Bethune was a great decision or the greatest decision.

As Marc Elias and Rick Pildes pointed out, the holding that race and traditional criteria need not conflict to find predominance in racial sorting cases resolved a question with major implications for litigants in the field. This will make the standard easier to satisfy and undoubtedly lead to more cases.   Michael Dorf called it a “surprisingly liberal 7-1 result,” and Elias described it as a “7-1” victory before stating that it was “[a]ctually, more like 8-0.”

But this superficial consensus among the Justices should give pause to those who care about the survival of the Voting Rights Act (VRA). The sorting claim was developed by opponents of the VRA as a weapon to cut down districts designed to protect minority voting power. Only recently have voting rights lawyers begun to wield this weapon for their own purpose: striking down districts that pack minority voters based on the pretext of “complying” with the VRA. At the end of the day, the claim remains a weapon that can be used to advance or undermine the VRA, and Bethune has sharpened the knife for both sides.

Perhaps the most revealing sign of these crosscutting currents was Chief Justice Roberts’ presence in the majority. Roberts has long opposed Section 2’s results test and previously subscribed to the views of Justices Alito and Thomas regarding predominance, agreeing with Justice Scalia in LULAC that the intentional creation of a majority-minority district alone necessarily triggers strict scrutiny. So why the change? One explanation might be that the Chief Justice is building an illusion of consensus similar to that found in Northwest Austin ahead of a more sweeping and controversial decision yet to come.[3]

With more redistricting litigation ahead, the key to preserving the VRA will be handling the Bethune holding with care. Below I examine the good, the bad, and the ugly about Bethune and offer some thoughts on how it might be used to help enforce the VRA and fend off challenges to the VRA rather than inviting its demise.[4]

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Basis, Intent, and the Blood Sport Republic: A Voting Rights Framework for a Constitutional Democracy

This weekend, William & Mary will host an impressive symposium with the daunting task of “lay[ing] a definitive academic foundation” for redistricting law ahead of the 2020 census. The topic could not be more pressing. The Supreme Court continues to consider Bethune-Hill[1] and McCrory, is holding Covington and Harris[2] in limbo pending those decisions, and will almost assuredly see the historic Whitford case land on its doorstep soon. In a weekend that is sure to reveal a number of disagreements on critical questions, perhaps all attendees can agree on one thing: “The most charitable thing to say about the current state of . . . gerrymandering law is that it is a big mess.

Yet, in the background of almost every major debate lingers a conceptual distinction that could help strike consensus across a range of issues: the distinction between “intent” and “basis.” Intent asks: “Why this district?” Basis asks: “Why this person?”

The concepts intersect on the margins, but each plays a unique and distinct role in the “dilution v. sorting” question, the “race v. party” question, and the balance of powers question, among others. Moreover, the importance of this distinction goes beyond redistricting law—it could play a key role in forming a more coherent, simple, and rigorous voting rights framework at a time when it could not be more critical.

In the field of redistricting law, this distinction makes it possible to reduce a complex body of law into a relatively simple table (assuming the Court is willing to adopt both a political dilution claim and a political sorting claim, as I have advocated and as would address the concerns of the Whitford dissent).[3]  [UPDATE: Aspects of this table have been eclipsed by more recent developments in the law.]

Redistricting
  Racial Dilution (Statutory) Racial Dilution Political Dilution Racial Sorting Political Sorting
Authority[4] VRA & 15th 14th 1st and/or 14th (Whitford) 14th 1st and/or 14th
Intent

(“Why this district?”)

No showing required

Device may violate VRA despite having political purpose

Device enacted or maintained “to minimize or cancel out the voting potential of racial or ethnic minorities” (Bolden) Device enacted or maintained to “to minimize or eliminate the political strength of any group or party” (Gaffney; Bandemer (citing Bolden)), or

“to place a severe impediment on the effectiveness of the votes of individual citizens on the basis of their political affiliation” (Whitford)

No showing required, but relevant evidence to predominance/basis and state showing of tailored justification

Political objective does not change racial basis of sort. (Bethune)

No showing required, but relevant evidence to predominance/basis and state showing of tailored justification
Basis[5]

(“Why this person?”)

Evidence of racial basis may favor causation finding, if legally necessary[6] No showing required; but relevant to proving intent No showing required, but relevant to proving intent “State has [predominantly] used race as a basis for separating voters into districts.” Miller

(i.e., racial basis subordinates in fact (Bethune))

Burden shifts on showing of predominant basis (Miller, Bethune)

State has predominantly used political data as a basis for separating voters into districts (i.e., political basis subordinates in fact (Bethune))

Burden shifts on showing of predominant basis (Bethune)

Effect (Preconditions) Gingles Test (threshold showing that device can impair equal ability to elect)

No strict threshold for finding legally significant polarization (Gingles)

Gingles Test

See Martinez, 234 F. Supp. 2d 1275 (applying Gingles)

No strict threshold for finding legally significant polarization (Gingles)

“Modified Gingles” Test (threshold showing could be Whitford efficiency gap, Sam Wang’s approach, Bernie Grofman’s factors, etc.)

No strict threshold is necessary

N/A N/A
Effect (Liability) Totality of Circumstances Totality of Circumstances

Burden shifts if plaintiff makes prima facie case (Arlington Heights)

Totality of Circumstances

Efficiency gap is weighty evidence, but not dispositive (Whitford)

Burden shifts if plaintiff makes prima facie case (Whitford)[7]

No showing required

(Expressive and representational harms implied when predominant basis is race)

No showing required

(Expressive and representational harms implied when predominant basis is politics)

State Justifications (Permissible)[8]

See generally, Parsons.

Protect Minority Ability to Elect; Prevent Dilution (City of Rome) Protect Minority Ability to Elect; Prevent Dilution (City of Rome) Competitiveness, Proportionality, Incumbency Pairing Prevention, etc. (Gaffney, Cromartie, Karcher, Bush, LULAC) Protect Minority Ability to Elect; Prevent Dilution (City of Rome) Competitiveness, Proportionality, Incumbency Pairing Prevention, etc. (Gaffney, Cromartie, Karcher, Bush, LULAC)
State Justifications (Impermissible)[9]

See generally, Parsons.

Racial, Partisan, or Incumbency Advantage (Bolden, Bartlett, Gaffney, Bandemer, Vieth, LULAC, Bethune) Racial, Partisan, or Incumbency Advantage

(Bolden, Bartlett, Gaffney, Bandemer, Vieth, LULAC, Bethune)

Racial, Partisan, or Incumbency Advantage

(Bolden, Bartlett, Gaffney, Bandemer, Vieth, LULAC, Bethune)

Racial, Partisan, or Incumbency Advantage

(Bolden, Bartlett, Gaffney, Bandemer, Vieth, LULAC, Bethune)

Racial, Partisan, or Incumbency Advantage

(Bolden, Bartlett, Gaffney, Bandemer, Vieth, LULAC, Bethune)

Below, I explain the basis/intent distinction further, how it resolves a number of redistricting law issues, and how it plays a critical role in preserving foundational principles of constitutional law in our democracy.

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Bethune-Hill & McCrory: If Either Party Wins, We All Lose

Yesterday, in Bethune-Hill and McCrory, counsel for the voter-plaintiffs asked the Supreme Court to reverse the Virginia decision and affirm the North Carolina decision. The state-defendants requested the opposite. Based on the Justices’ questions, the plaintiffs appear poised to get what they want. Yet, a full-out victory for either side should concern all of us—including the plaintiffs. That is because counsel for the voter-plaintiffs may have just purchased a few state house seats at the cost of the Voting Rights Act itself.

The arguments yesterday were marked by confusion, with the underlying tension between the commands of the Voting Rights Act and the Equal Protection Clause coming up on several occasions. Indeed, at one point, counsel for the state-defendants went so far as to raise the issue directly, prompting a quick response from Justice Kagan:

CLEMENT: [T]he Voting Rights Act makes the consideration of race absolutely necessary. . . . [U]nless you want to take the first steps towards declaring the Voting Rights Act unconstitutional, you don’t want to send the signal that when legislatures approach this in a way that I think is perfectly appropriate to what’s going on. . . .

JUSTICE KAGAN: You absolutely don’t, Mr. Clement.

Unfortunately, this problem cannot be so easily ignored when the Justices are forced to put pen to paper. They are the ones who must harmonize the racial sorting claim with the commands of the Voting Rights Act, and for the time being they seem to be at a loss. As Justice Breyer tellingly noted towards the end of the arguments:

JUSTICE BREYER: But, . . .what exactly is going on, in part, is a very tough matter. . . . There were many States that had many black citizens and had no black representation, and there was a [decision to] have majority-minority districts. And the problem is, how does the law permit the creation of that, and at the same time, prevent the kind of packing that might appear in other cases, which is gerrymandering? And . . . no one, I think, has a good answer to that question. There is just slightly better, slightly worse.

But there is a good answer to that question, and there is a way forward. Unfortunately, it wasn’t offered by either side and requires rejecting both sets of arguments in part. For the reasons stated below, the Court should reject the plaintiffs’ view of predominance in Bethune-Hill, reject the states’ justifications for gerrymandering in McCrory, and affirm the results in both cases. The Voting Rights Act depends on it, the Constitution demands it, and our democracy requires it.

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Today, I’m Thankful for: Whitford v. Gill

In a recent post, this blog examined the most significant racial and political gerrymandering cases unfolding in the year ahead. And, just in time for Thanksgiving, the United States District Court for the Western District of Wisconsin has issued an historic decision in one of those cases—Whitford v. Gill (3:15-cv-421)—and has struck down a state legislative redistricting plan as an unconstitutional partisan gerrymander for the first time ever. This is something we can all be thankful for, and special thanks are due to the Campaign Legal Center, which helped bring the case, and Nick Stephanopoulos and Eric McGhee, who set out the “efficiency gap” test put forth in the case.

Although the parties are yet to brief the district court on the proper remedy to be applied, an appeal to the Supreme Court is undoubtedly forthcoming. There, the case will await review along with Harris v. McCrory (16-166), which is likely to be heard or decided in the aftermath of the Court’s decision in McCrory v. Harris (15-1262). What are the odds that the decision is upheld? Let’s carve into the district court’s meaty opinion (sorry, give me one holiday pun), and find out.

 

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The Year Ahead in Racial and Political Gerrymandering Law

When President Obama called for an end to gerrymandering in his final state of the union, it was a rare moment of primetime coverage for a typically arcane subject: redistricting. But this topic is getting increased attention, especially after 97% of incumbents who chose to run were returned to office this year despite the electorate’s strong “anti-establishment” sentiment. Political writers have called the last round of post-census redistricting “the most audacious political heist of modern times,” celebrities (such as Zach Galifianakis) have taken up the cause, and activists in several states have legislative reform efforts underway.

The debate is also unfolding in the courts, with partisan and non-partisan groups engaging in a multi-front legal battle over racial and political gerrymandering. Although the war over congressional and state redistricting maps is likely to continue for many years to come (and will heat up in the aftermath of the 2020 census), the year ahead holds significant developments for legislators designing maps, litigators challenging maps, and the voters and candidates who must live with the consequences of the evolving law in this space. At stake is the constitutionality of the Voting Rights Act as applied to redistricting, the reconciliation of the Fourteenth and Fifteenth Amendments, the practical ability of legislators to comply with the law, the balance-of-powers problems raised by the “judicialization” of the redistricting process, the collateral consequences of racial gerrymandering decisions on other racial justice initiatives, and the potential for political gerrymandering claims to upturn partisan maps nationwide—all issues that take on fresh urgency with the future direction of the Supreme Court becoming clear.

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