Rule of Law, Session Two, October 15 The premise of our Constitution is that we operate under a rule of law, not of man but of men together determining what legal standards are, applicable to all. No one is exempt from the rule of law, and so we are basically equal unless there is a valid reason for differentiating and unless this differential has been duly enacted or determined in a court of law. Also, individuals should not be denied access to law, to the political system and to the courts. To ensure that we the people are in control, the federal government power was divided- “vested” - in three co-equal branches. There are overlapping duties and checks and balances of the branches. The Constitution may be vague about the defining lines and at times the political branches work it out amongst themselves, as put by Chief Justice in the “Hurly-burly” of politics and at times the court steps in, as in Bush v. Gore to determine the 2000 presidential election (see session 1). These Constitutional allocations of duties are tested regularly. Many are resolved informally between branches so there is no Constitutional crisis. Some are not. Rule of law issues include: Judiciary Judicial interpretation of the Constitution- the Court established itself as the interpreter of the law in Marbury v. Madison(1803). Often a question is how far the court should go in assuming jurisdiction in political matters- what is the line between a political or a Constitutional issue, Bush v. Gore (2000) (above), Rucho v. Common Cause (apportionment determination). The Supremacy Clause (Art.VI of the Constitution) assures that the court can create a consistent body of law throughout the United States, including the states. Legislature What are the Congressional powers? Primarily limited to those enumerated in Art. I, Sec.8 of the Constitution, these powers were enhanced by Constitutional amendments in assuring equality and rights, see for example 14th Amendment, Sec.5 “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article” which enabled Congress to redress the aftermath of the civil war and slavery. The court held Congress had the implied authority under the “necessary and proper” clause to create a national bank to effectuate its Constitutional monetary tasks- McCulloch v. Maryland (1819) (otherwise federal government would be ineffective if it did not have power to carry out its given tasks). But this clause is pinned to other clauses authorizing action- it is not a general, vague grant of power to the Congress, rather a grant to effectuate it’s given powers. For example, the duty of Congress to regulate interstate commerce was used to uphold federal laws prohibiting discrimination in restaurants/accommodations affecting interstate commerce (Katzenbach, Heartland Motel)(but insufficient nexus found to use the commerce clause-interstate travel- to regulate guns used in school shootings, US v. Lopez (1995). The court held, as to the Affordable Care Act, that Congress did not have the authority under the commerce clause to mandate purchase of insurance from a private party (there was no commerce if no purchase) but did have the ability, under its taxing power, to impose a tax as a penalty for failure to do so. Also, Congress cannot mandate that states accept all of its increased strictures for coverage under the Affordable care Act or lose all its federal money, but, under its spending power, could encourage states to comply and continue to fund the essentials- National Federation of Independent Business v. Sibelius (2012). The Congress (or the President) cannot extend its powers unconstitutionally through use of the treaty power, changing by international agreement activity prohibited by the Constitution. The goal is to retain a rule of law that our elected representatives make under Constitutional framework. States retain their plenary power under the Constitution. Only those tasks agreed to in the Constitution are relinquished by the states. This has caused posturing and testing of power for covid virus issues where, due to exigent circumstances, control is asserted. Do federal or state mandates control? When can the federal government control state governments- such as to opening up, mask wearing, travel? What regulation of interstate (or intrastate) travel there can be? This is especially testing the boundaries of federal/state authority, with state legislatures and governors retaining much control under their plenary powers. Presidency Assertions of Presidential exception from the law There has been effort by many to allow the president to be absolved from much governmental scrutiny or control by the other branches of government. This has been based on the “unitary presidency” theory- as there is only one president (the founding fathers determined to have only one person to lead and defend us as president, to enhance quickness of decision making and responsibility), Federalist Papers). The Constitution “vests” the President with the executive power and this power is coequal with the other branches (the separate and equal executive power was newly created in the Constitution) (Art. II, Sec.1 of the Constitution). Yet, the president has been testing this co-equal status by ignoring Congress, by trying to bend the judiciary to his will or assuming it will uphold his arguments of being exempt from much of the law, or by simply assuming presidential authority. Claims of presidential privilege or executive immunity The assertion is that the President cannot comport his duties of the office to which he was elected if his conversations are revealed- and thus he should be entitled to executive privilege (not disclose documents or be subject to inquiry). The assertion is that he should be immunized for his actions in office, entitled to executive immunity (seen now in request of DOJ to defend the President for a suit for defamation). The assertion is that a president would be distracted by defending lawsuits and so the President should be shielded from suit (thus not subject to judicial review for grievances). These are efforts to create exemption from the rule of law. These arguments were considered in the presidential investigation by Mueller, the impeachment proceedings, and several cases. Recent Congressional subpoenas of the president’s records and requests for his appearance at a special investigation resulted in various challenges based on presidential privilege and presidential immunity. Some of these arguments are: Mueller Report The president did not appear in person before Mueller (out of concern to not open himself to misstatements). The Mueller Report discussed the DOJ theory of not bringing criminal charges against a sitting president, as it would distract the president from performing the job on behalf of all Americans but not denying the right, after office term is completed, to prosecute for criminal acts. The report, however, was clear that no one is above the law. No one, not even a president, was exempted from charges concerning fraudulent behavior- the office was not a pass for all actions (see the report sections, in the second half, on the limitation of scope of inquiry and accountability for fraudulent behavior). Impeachment and other Congressional hearings Undertakings of Congressional duties were contentious; the administration declined to produce documents or testimony (as in impeachment inquiry or committee hearings). Subpoenas of records/depositions As to recent court rulings as to subpoenas (below), the court noted it is important not to undermine other branches of our federal or state governments- but to pay heed to federal legislative and judicial needs/authority (the court also balances federal and state needs/authority). In balancing the powers invested in each branch, considering the functioning of each branch, the court keeps all branches functional and a check on other branches. The court held the state of New York could subpoena the president’s tax records prepared by accountants for criminal prosecutorial matters, especially as this was a narrow inquiry vetted by the grand jury- Trump v. Vance (2020). But Congress had to narrow the scope of its subpoenas of President’s records- they were not to be a general fishing expedition but pertain to specific avenues of investigation by Congress; otherwise, Congressional power would be limitless- Trump v. Mazars (2020) (Congress had to more narrowly tailor the subpoena and show the need). President Nixon had to supply tapes to an investigator of the Watergate break-in; he could not argue absolute privilege -US v. Nixon (1974) (the concern of the public and the role of the other branches of government, as oversight and redress for grievances, would be harmed if he president could ignore the other branches). President Clinton had to give a deposition while president in a civil case pertaining to facts occurring before his presidency- Clinton v. Jones (1995) (judicial process was not to be ignored in a civil suit and so evidence could be gathered/preserved by deposition during presidential office, with a trial after leaving office). The President argues he is entitled to presidential privilege and immunity as to about everything, including acts before he took office. He relies on his authority under the unitary theory of the presidency and authority to represent us abroad: Presidential power and Constitutional norms Executive orders The President said that he would not engage in legislation, relying instead on executive orders to effectuate policy changes. Executive orders remain in effect until the next President nullifies them (usually by issuing another contrary or modifying order), until Congress responds by enacting legislation (curtailed by the fact the President must sign the legislation or cause an increased override vote by his veto), or until the issue is raised before the Supreme Court. This action avoids bicameralism and presentment structure in the Constitution. In several cases, the courts have held executive orders were not substantially thought through or justified, or proper procedure was not followed under the Administrative procedure act; it left open final approval if modified.