Trump’s presidency has brought about a lot of change, especially in regard to law. In this episode of Planet Lex, host Daniel Rodriguez interviews Northwestern Law faculty members Deborah Tuerkheimer, Andrew Koppelman, and Eugene Kontorovich about recent actions by President Trump and the legal considerations facing this new administration. In their discussion, they cover a wide array of topics, including President Trump’s nomination of Judge Neil Gorsuch, his expansion of executive power, and the potential of the Department of Justice shifting away from certain civil rights issues. They conclude with a lightning round that touches on topics like climate change, affirmative action, and power the president holds and doesn’t hold over foreign treaties.
Professor Deborah Tuerkheimer joined the Northwestern Law faculty in 2014. She teaches and writes in the areas of criminal law, evidence, and feminist legal theory. She’s a former assistant district attorney and a frequent contributor to Slate.
Professor Andrew Koppelman is John Paul Stevens Professor at Northwestern Law, where he received the 2015 Walder Award for Research Excellence. His scholarship focuses on issues at the intersection of law and political philosophy.
Professor Eugene Kontorovich specializes in constitutional law, federal courts, and public international law. He has published over thirty major scholarly articles and book chapters in leading law reviews and peer-reviewed journals in the United States and Europe.
Planet Lex: The Northwestern Pritzker School of Law Podcast
Trump Administration and the Law
Intro: Welcome to Planet Lex: The Podcast of Northwestern Pritzker School of Law, with your host Dean Daniel B. Rodriguez, bringing it to you from Chicago, Illinois. Take it away Dan.
Daniel B. Rodriguez: Hello and welcome to Northwestern Law’s Planet Lex, podcasting from the Northwestern Pritzker School of Law from Chicago, Illinois. My name is Dan Rodriguez, your host.
Today I have the pleasure of being joined by not one not two but three of my able Northwestern Law faculty colleagues to discuss recent decisions and actions by President Trump and the legal considerations facing this new administration. I should mention that we are recording this on February 7. Obviously news has been breaking pretty quickly in this administration. So while we’re not fixed in amber is it where our listeners will know that we’re talking about this in the early part of February into the new year.
So my guests, Andy Koppelman, John Paul Stevens Professor of Law, who focuses on issues at the intersection of law and political philosophy, constitutional law and many other cognate subjects. His most recent books are ‘The Tough Luck Constitution and the Assault on Health Care Reform’ and ‘Defending American Religious Neutrality.’
Professor Eugene Kontorovich colleague at Northwestern, specializes in Constitutional Law, Federal Courts and Public International Law. Eugene has published over 30 major scholarly articles and book chapters in leading law reviews and peer-reviewed journals in the United States and Europe.
Professor Deborah Tuerkheimer, who has joined me before as a guest, so listeners will know is a criminal law evidence and feminist legal theorist here at Northwestern. She is a former assistant district attorney and a frequent contributor to Slate. Her most recent book is ‘Flawed Convictions: “Shaken Baby Syndrome” and Inertia of Injustice.’
Thank you to all three of you for joining me here this morning. So let me just throw this out here and ask you to, there’s so much to cover even as we speak here in early February.
So let me begin with lawyers and the courts and I’ll start with lawyers. Talk if you will, anyone of you or all three of you, about how if at all the role of lawyers will be different under this new administration?
Andrew Koppelman: I think that one of the interesting continuities between the Obama administration and the Trump administration is that there are in each case well-organized groups of lawyers who are hostile to what the administration is trying to do and are able to use the courts in quite skilled ways to try to prevent the President from accomplishing what the President wants to accomplish, and well, that might not be part of the originally contemplated system of checks and balances it’s certainly something that any President I think is likely to have to deal with hereafter.
Daniel B. Rodriguez: Can I jump in with follow-up, is President Trump at a disadvantage by not being a lawyer or does that not matter given obviously the legal advice he has from the White House Counsel’s office, Department of Justice et cetera?
Andrew Koppelman: Well, he can remedy that deficit, any President can remedy that deficit by running his proposals past the White House Counsel, on the Office of Legal Counsel before he promulgates that, that’s something that I think that President Trump is learning.
Deborah Tuerkheimer: Yeah, I would just add to that to the extent President Trump evinces respect for the rule of law for the Constitution I think lacking a law degree is not a disadvantage. The concern is that he hasn’t yet shown that kind of respect for rule of law for constitutional norms, that’s where the lawyers I think do play a really important role.
Talking to many of our students here at Northwestern who are feeling activated, who are feeling mobilized, who are feeling like this is a particularly important time for people who do believe in the importance of law, separation of powers, constitutional constraints for lawyers to be very involved, to be very active, and to be those checks and balances that Andy mentioned earlier.
Daniel B. Rodriguez: You said hadn’t yet so I might, if I may say that comes at it with a somewhat light touch, others would say that he’s – and others have said that he has evinced hostility beyond the pale with respect to the judiciary, and again, as we record the United States Court of Appeals is about to hear an appeal from a judge’s decision in Seattle and within hours after that decision Donald Trump — President Trump tweeted infamous line that called the judge a so-called judge and a number of individuals within law schools and outside of law schools leapt onto that and said that that reveals this pattern on the administration, the President particular of not only disregarding, but speaking very pejoratively about a co-equal branch of government.
Eugene Kontorovich: So all should remember Donald Trump’s tweets of course are a thing entirely new to the world of politics both in a wide-rangingness and their extraordinary tone, but in terms of criticism of the Supreme Court and even sharp criticism we heard some of that from President Obama even in particular before the decision of the Court in the Affordable Care Act case, the Sebelius case, the President strongly addressed the court directly and said that it could have bad consequences for the Court and its legitimacy if they fail to do the right thing, which depending on how seriously you take each President could be a greater or lesser form of intimidation with the judge and Trump’s tweets. Indeed I think it proved to be more effective than Trump’s tweets will prove with respect to this judge.
The courts were severely criticized by Attorney General Holder after Citizens United where they were called lawless and totally misconstruing the Constitution. So that kind of criticism is not new.
Now obviously President Obama, Attorney General Holder put those criticisms in a different manner than an inflammatory tweet, but it’s not clear to me that the general content was quite different.
Andrew Koppelman: So I think that one distinction certainly a distinction that a lawyer would keep in mind advising a client is that it’s one thing to express disagreement with the reasoning of a court and it’s a different thing to personally abuse the judge that any lawyer will tell their client “do not make statements in the press personally abusing a judge”, because among other things it is going to dispose the judge to rule against you and saying that if there is an attack in the future, blame the courts, it seems to be a level of pressure on the courts, I think, certainly different in degree, possibly different in kind from what President Obama did.
And if I were President Trump’s lawyer I’d tell him the concern here is that you now create a situation where if the courts rule in your favor they will worry about being perceived to be caving into pressure, and so, this will predispose them to rule against you, and so it’s counterproductive even in the instant litigation never mind ideas about the propriety of presidential statements and the like.
Daniel B. Rodriguez: Well, whether we agree or disagree about the propriety of President Trump’s criticisms, I suspect we can all agree that he will have the most influence over the courts with respect to who he appoints in the courts, and of course, just in the last few days he made his first important appointment in the form of the nomination, Neo Gorsuch to the United States Supreme Court, I wonder, if each of you would say a few sentences about what you think about that appointment?
Deborah Tuerkheimer: Well, in some respects he is not as extreme as some particularly on the left feared the appointment might be, that said there I think is great concern and legitimately so that future appointments will pull the Court farther to the right. This is obviously a replacement for Justice Scalia and I think in many respects a Justice Gorsuch would do much of what Justice Scalia did on the Court, particularly with regard to the Fourth Amendment to sort of criminal justice issues, to many constitutional issues where he’s written opinions, it looks a lot like a Scalia.
What we don’t know, and this is of particular interest to me and I know to many others, is where Justice Gorsuch will come out on the question of Roe v. Wade, this is something that Trump made very clear was important to him, it was a litmus test as he put it. And so, one might have expected that the Justice would be committed to overturning the case of Roe v. Wade; it’s not entirely clear that that’s where Justice Gorsuch will come out, his writing has been on the related subject of euthanasia, physician-assisted suicide, and so he’s made some comments that some have interpreted to be sort of anti-choice, anti-abortion about the sanctity of life.
That said, he’s been very careful about drawing a line between the topic that he was discussing in his book on the subject in Roe v. Wade and I think that it would be difficult to make firm predictions about where he will come out if and when the Court is in a position to revisit that holding.
Eugene Kontorovich: The question of overturning Roe v. Wade is I think a complicated question of being against Roe v. Wade and is a complicated question of maybe several different parts. One is, would Judge Gorsuch have voted for the result in Roe v. Wade, does he think it’s a good decision and a correct decision? That itself is separable from the question of whether he would vote to overturn it, which indeed the Supreme Court has already voted in part to overturn it which indeed the Supreme Court has already voted in part to overturn it in Casey, though not in 09:43 but certainly abandoning the trimester system of Roe v. Wade.
And of course, the third question, and I think it is unlikely that he would vote to overturn Roe v. Wade in a broad and blanket sense, and the third question, which is probably the most relevant, is how he would vote on particular detailed questions of various individuals, state, regulations or restrictions in the area of abortion which are not abortion bans, but maybe in the area most litigated now so-called undue burdens, that is to say around the edges rather than at the Court, and that is indeed where most of the litigation is now and I think those are three although different questions.
Andrew Koppelman: So I think the reason why the conversation focuses on abortion is because of the various issues before the court, it’s one of the weightiest, either it is the case that large numbers of babies are being killed or that large numbers of women face the prospect of being compelled to have children against their will, and either one of those is pretty bad if you accept the description. So I think that’s why folks focus on it.
I agree with Eugene that the question that’s likely to come before the court is not absolute bans on abortion. If I were in the right-to-life movement I think that I’d be less eager to do that than to enact the kinds of restrictions that Texas enacted that were just struck down by the Court, that make it much more difficult to get abortions because those are lower visibility, they are harder to reduce to a sound-bite and you can effectively ban women from having abortions in large parts of the country without saying that that’s what you’re doing.
And so, if a court wants to do that or if a State wants to do that without mobilizing the other side that would be the way to do it. I think more generally, the question about Gorsuch is really a question about the departures from normal procedure in the case of Merrick Garland wherefore nearly a year the Republicans refused to so much as hold a hearing on him.
So, one aspect of the political system, and this goes to Trump’s presidency generally, any political system depends not only on the written rules, but protocols for carrying on that everyone takes for granted even when against interest in order to smooth the operation of the system, and those have been generally degrading overtime. So would the idea that some Republican leaders came pretty close to saying that presidents just don’t get to a point, Supreme Court justices in the fourth year of their term which is a crazy rule, but that was the rule to be followed. And so, there’s some inclination on the part of the Democrats to punish that by saying, well, if you are going to use all of your parliamentary resources to block a nominee because he’s a Democrat and a number of them said that if Hillary Clinton had won the presidency they would try to keep that seat open that it isn’t appropriate to have a regime in which only the Democrats follow the rules, the unwritten rules and the Republicans don’t. So the inclination on the Democrats’ part is to say that 60 votes are required in order to get this through and either you abolish the filibuster rule or the seat is going to remain empty until Trump appoints someone who is acceptable to the Democrats as well as of the Republicans.
Daniel B. Rodriguez: On that point what is your prediction about how likely it is that the Republicans will utilize a so-called nuclear option in order to overcome the filibuster?
Andrew Koppelman: If the Democrats hold together and continue to block Gorsuch then I think that the Republicans will certainly use the nuclear option because they want to fill that seat and if they are in a position where their only way to fill the seat is the nuclear option, then I think that they will use it, which I actually think as a constitutional matter is appropriate. The Senate has become extremely dysfunctional because of the de facto rule that’s been adopted in recent years that you need 60 votes to do anything.
So I think that’s probably better for the operation of the constitutional system that that 60 vote will be degraded at every opportunity because it really is an extra-constitutional rule. What I fear, and the temptation that I worry that the Democrats will succumb to, is to turn this into an issue of personal attacks on the nominee and claims that the nominee is not qualified, and that’s just not the case. Gorsuch is as qualified as any Republican nominee and it should not be about him, it would be a mistake for the Democrats to make this about him.
Daniel B. Rodriguez: Let me ask this, if we can stipulate that Gorsuch is within the mainstream, in some broad sense of mainstream conservative thought, of course what is ominous from the vantage point of many folks who have concerns about the Trump administration is the next appointment and the next appointment after that, particularly if the appointment replaces someone in the middle, someone like Justice Kennedy, someone on the Left, someone like Justice Ginsburg. So again, asking you to make a prediction, what would you imagine would be the position of the Trump administration on the next nominee? Is this is an instance as it has been written about in some ways in which he’s offering up an easy mainstream nominee only to get ready to appoint somebody who might be much more radical coming up next?
Eugene Kontorovich: I think it’s very difficult to speculate about that. One, may Justice Kennedy and Justice Ginsburg live long and do well. There’s no guarantee that Trump will have occasion to replace them or when he will have occasion to replace them.
Right now, I understand the Democrats strategy but it’s a weak one because they’re in a weak position just having lost an election fairly, a decisive especially in Congress, in two years, their position may look a lot better or worse, and his ability to push things may be different.
But, I think on the whole, it’s not surprising that a conservative or republican President will attempt to a point conservative and republican people to quote our former President elections have consequences and some of those are felt on the Supreme Court.
And in terms of the Gorsuch nomination and the Garland nomination, I think both the Democrats and the Republicans were right. The Republicans were right in Garland, Judge Garland. I think when they stated the claim, their view that the President does not have a right or a power or somehow limited from appointing justices in his last term, that’s clearly wrong.
But when stated I think more modestly that he does have the power to do so and they are under no obligation to give the advice and consent and they could be obstructive and difficult, that’s clearly right. And the Democrats are clearly right that they can be obstructive and difficult retaliatory and for a new President.
The difference of course is the power dynamics are very different in a nomination in a last — it’s not formal difference, the practical difference, the power dynamics are very different in a last term than in a first year of a term, the Republicans’ strategy which seemed absolutely unlikely to succeed at the time was to wait President Obama out and somehow do better, which seemed almost wild and insane.
But indeed it succeeded but the Democrats are very unlikely to wait Donald Trump out especially if further seats become vacant and the accumulation of vacancies I think would be unlikely to look good and the Republicans almost certainly will invoke the nuclear option. And I think the reason that is likely is because the Democrats have already invoked it for other judicial candidates. And I think we have crossed exactly that point that Andy mentioned, where the non-legal structure, the norms, the manners and the institutions of reciprocity have evaporated maybe at a time when people will think it would be most useful for them to still exist but I think it is hard to believe that they will still exist.
Andrew Koppelman: The norms of reciprocity of course, we have not gotten to the absolute bottom of norms of reciprocity. So Congress flirted with the possibility of defaulting on the debt of the United States in order to win a political point they did not go there, that does not mean that they will not go there in the future.
And of course, there’s a famous episode of when one member of Congress speed another one unconscious with a cane on the floor, so it can get worse.
Daniel B. Rodriguez: In the last Century let me just hasten to add for the better —
Eugene Kontorovich: The Century before that.
Andrew Koppelman: Before the Civil War.
Daniel B. Rodriguez: Yes, thank you, thank you, two centuries ago. Let me turn the conversation if I may away from the courts, there’s so much of course involving the Trump administration, the rule of law and actually let me ask this question to Deb, when last we spoke in this setting we had a good conversation about the role of the Obama administration in Title IX and the Dear Colleagues Letter, commercial announcement for those who don’t recall that conversation it is available on Legal Talk Network.
But back to the point, now a new administration and a question that looms large, which is, the role of the Department of Education and the Department of Justice with respect to this very difficult issue particularly for colleges and universities as you know, which is Title IX in that scope. What are your thoughts about what is to come?
Deborah Tuerkheimer: I think we’re going to see a sea change in the federal government’s approach to this question, and I guess I’ll focus on the Department of Education in particular the Office of Civil Rights which has been very active, which was very active during the Obama years in really aggressively pushing colleges and universities to take seriously their obligations under Title IX, which is a statute that deals with gender equity and education.
And so what we saw during the Obama years was an active effort to get colleges to apply a preponderance of the evidence standard in these hearings that is something that the Republicans in their platform made very clear they are not supportive of, schools that were under investigation have been publicized in the Obama years, it is no longer clear that that will be the case.
These investigations require funding, it is not clear that these investigations will continue to be funded. And so there are all sorts of ways in which a Trump administration particularly a Betsy DeVos, Department of Education, can really pull back on the progress that we’ve seen.
In particular, there’s this notorious now Dear Colleague Letter, notorious or inspirational depending on your perspective. A Dear Colleague Letter which did, for one, put into place this notion that the appropriate standard for adjudicating claims of sexual assault on-campus is preponderance of the evidence. It’s not a higher standard and this is the standard that now proliferates.
So if that is challenged, the Trump administration doesn’t have to defend the lawsuits that are pending. And I want to say something interesting about that, one organization that has been actively opposed to this approach and to this Dear Colleague Letter in particular is called FIRE, it’s the Foundation for Individual Rights in Education. That’s an organization that has received donations from — among others Betsy DeVos.
So on top of the GOP platform, which is fairly hostile to the idea of federal intervention in this area, we have now a head of the Department of Education who we have every reason to believe is also quite hostile to these efforts. So we can talk about whether activism and other kinds of non-governmental efforts will keep this issue at the forefront. But again, going back to where it began, I think we should expect that coming from the Trump administration, we are going to see a pulling back of efforts in this regard.
Daniel B. Rodriguez: Thank you. Let me shift the focus and what’s on our minds, many things are on all of our minds, certainly the litigation over the immigration ban looming large and I welcome all of you or any of you to talk about that, but actually would like to kind of pull the lens out a little bit further and ask you a bit about executive power and the conversations in the press and elsewhere about executive power.
I couldn’t resist noting that my good friend, former colleague John Yoo, he wouldn’t — probably wouldn’t — would want to be introduced in other ways other than this but one of the co-authors of the so-called torture memo, a member of the administration in Bush administration, written as recently as I think the day before yesterday that the Trump administration portends the expansion, the undue expansion of executive power, which of course generated about a thousand — tens of thousands of tweets saying if John Yoo believes that Trump administration has gone beyond the scope of executive power then maybe it has.
So I’m looking at you Eugene, maybe that to weigh-in on the question of, of what threats or opportunities are portended by the Trump administration’s view on executive power?
Eugene Kontorovich: We all stand on the shoulders of Johns and it is highly likely that Donald Trump will try to expand executive power because every President, since him in recent memory, has done the same. That has been the clear trend.
I think when people express concern about Donald Trump expanding executive power, they mean that he will use it in ways that they do not find desirable, but President Obama was extremely assertive in his uses of executive power in terms of executive orders granting exemptions under the Affordable Care Act, deferral of immigration and broad executive policy making, and indeed this offers I think, the Trump administration offers an opportunity for liberals and conservatives if they were to come to their senses.
Liberals were horrified that Donald policy will implement the kind of policies Republican is likely to do, and conservatives who have long-standing concerns about constitutional drift to make a grand compromise. If one’s scared about Donald Trump as President doing so many things maybe it’s because the President has too much power to do things.
Now, again, to rein in and to have a bipartisan consensus to rein in the powers of the executive would require I think the levels of trust and reciprocity expectation that probably do not exist, but it’s a very good opportunity where in a sense the shoe is on the other foot. That is to say liberals are concerned about Trump and they are generally, those whoever favor the expansion of the administrative state and care less about federalism and limits on the power of the federal government vis-à-vis the states, and conservatives who worry a lot about these things in theory probably will not worry about it so much in practice when it’s their guy.
And so theoretically — and this is the idea of constitutional arrangements, is to make deals that lessen the volatility. That is to say the very sense that there’s so much up for grabs, which is the sense the conservatives had when President Obama was elected is perhaps a sign that something is wrong not with the Trump presidency but with the system in which much is put up for grabs.
One notion of the role of the Constitution is to limit the scope of up for grabness in any particular election and countries that have coups and violent transitions between powers, it’s because people feel everything is up for grabs in every election. And so, beginning to seriously think about a mutual and general agreement of restoring such will be very valuable, and I see, for example — one example of this is a discussion that’s begun involving people like Professor Heather Gerken about progressive federalism.
So federalism is seen as one way of resisting the President’s immigration policies through rights of states to implement or permit sanctuary policies, and I think it’s a great idea because I am a big supporter of federalism not because of any view of the policy issues, but I must say for this to work as a compromise that will be generally accepted, it needs a better name than progressive federalism, which makes it sound like it is a federalism for one purpose only; why not call it interesting name federalism and that will be great.
Andrew Koppelman: I think I agree with what Eugene just said and I think that I’d add that to the extent that there is consensus, a part of it is consensus about procedures. The other thing that President Trump has challenged is consensus about substance. The one place where I think that we’ve seen a substantive overlap between the Democratic and Republican leaders in Congress, and I think it hasn’t been reported in the press as much as it should have been, is over the question whether the United States cares whether Russia invades its neighbors, which has been a central issue of American Foreign Policy since World War II.
And the position the Trump took during the campaign and it continues to be open to that it really isn’t much concern of the Americans what Russia does. And the Democrats said quite early on that if President Trump unilaterally lifts sanctions on Russia for the invasion of Ukraine that they would introduce legislation to override that.
Daniel B. Rodriguez: With strong support of the Republicans, particularly McCain and Graham and —
Andrew Koppelman: Well, that’s the thing what happened – well, not support from McCain and Graham is one thing, but it was indicated that Senator McConnell and Speaker Ryan would also be sympathetic to allowing that to go forward if Trump were to unilaterally lift sanctions.
And so, I mean this is really huge, because my guess is that them saying that is sufficient to deter President Trump from unilaterally lifting sanctions with enormous geopolitical consequences.
Eugene Kontorovich: Sufficient but may be unnecessary, because one of the surprising things I think about President Trump even though he has said things that I personal regard as quite shocking about Russia, interestingly, his Secretary of State, his other senior national security officials have really said the opposite. And Ambassador Nikki Haley is Ambassador in the United Nations has denounced Russian annexation of Crimea in extremely strong and clear terms and the breadth of opposition to these Russian policies amongst cabinet-level officials suggest A, that it’s unlikely that radical changes will occur and B, actually I think puts Donald Trump in a surprising kind of light that he could appoint and tolerate people who disagree with him on such Markay issues.
But in the end, I think this is an area where there’s not going to be much difference except in tone, between the Obama and Trump administrations. So President Trump has a conciliatory tone to Russia and President Obama had a less conciliatory tone, but nonetheless the invasion of Crimea, the Russian invasion of eastern Ukraine did happen during the past eight years of the Obama presidency and law sanctions were imposed. They have thus proven entirely ineffectual and various stronger measures that were discussed kicking Russia out of the G8, kicking it out of the Mideast Peace quota were not indeed implemented and the US wound up coordinating joint air operations in Syria with Russia.
So the tone is very different, but I don’t know if the substance is going to be that different; assuming that the cabinet level officials play a restraining role, which I pray that they will.
Andrew Koppelman: That’s entirely uncertain in the event of a conflict President Trump outranks his cabinet officials.
Daniel B. Rodriguez: As every President. Let me ask, the so-called war on the press that has gotten a lot of notoriety in the press, right, just bringing it to the legal issues, in the campaign, President Trump than candidate Trump talked about redoing the Libel Laws perhaps that being the tip of the iceberg in terms of a reaction, legal reaction, in addition to a Tweet reaction, but a legal reaction with respect to the press.
Is there any room for horror if that’s your perspective or confidence, if that’s your perspective that the Trump Administration will actually make some substantial changes with respect to the laws dealing with the press?
Eugene Kontorovich: The thing about changing the Libel Laws, the first one, most Libel Laws are state laws and he can’t really do anything about those. And I cannot see Congress supporting any kind of broad re-working towards what seems to be a British Libel System because the British Libel System is the nightmare of the world and nobody seems to want it and everybody wishes to seek to flee from it, except for plaintiffs who wish to flee to it. But it would be an extraordinary change which would require legislation.
Andrew Koppelman: The other thing that I think you’d have to add about what candidate is that then was Trump said, is that there are constitutional restraints on the Libel Law that New York Times v. Sullivan means that it’s not possible to sue the press for statements about public officials unless you can show that those statements were made at least with reckless disregard of the truth.
And so that would require a change in constitutional law and right now I count 0 votes on the Supreme Court overrule New York Times v. Sullivan. I suspect that candidate Trump didn’t know any of this. The way that he described the change in Libel Laws, he contemplated, he seemed to think but the President has the power to rule by decree, which actually is not the American Constitutional system.
Daniel B. Rodriguez: So the prospect of Trump v. Saturday Night Live is unlikely in our –.
Andrew Koppelman: I think I am safe to say that.
Daniel B. Rodriguez: So here’s a provision in the Constitution that I think it’s fair to say is it has been the subject of little or no litigation in our 200-plus years and that’s the so-called Emoluments Clause, which has gained some attention given real concerns about potential conflicts of interest on the part of President Trump and the Trump administration, particularly President Trump.
Any views about what the courts would be likely to do about a claim of violation of the Emoluments Clause.
Eugene Kontorovich: I think it’s very clear what the court would be likely to do about a claim of violation of the Emoluments Clause and indeed such a claim has been filed by some of our colleagues at other universities. I think the court will be extremely likely to say that it presents non-justiciable question; that is to say that the plaintiffs do not have standing to raise this because the Constitution requires the court to adjudicate cases, which is disputes between people.
In other words, something is being done to someone, but it’s not clear that Trump is receiving any alleged emoluments against somebody, and there are analogous clauses of the Constitution like the Incompatibility Clause, about holding a legislative and executive position; the Accounts Clause requiring Congress to publish all of the money that they spend which have been found to affect everybody so commonly and so generally as to be very difficult to raise a case before the court.
Andrew Koppelman: But it may be possible to get round the standing question now that we get deep into the weeds there, but it seems to me that the litigation is trying to accomplish two things; one is it’s not clear whether you’d be able to get a court decision in the Emoluments Clause. It says that you can’t accept a present or emolument from any foreign state.
And we don’t really — because Mr. Trump’s business dealings are so opaque, we don’t know who his investors are, we don’t know whether foreign countries are patronizing his hotels and delivering them business for the purpose of currying favor with them, it’s really unprecedented and it seems to be one of the things that the lawsuit is trying to raise is the impropriety of this whole arrangement.
If I were a foreign government that was trying to secure some favor from President Trump, I would think that it would be prudent to continuously book large blocks of rooms in Trump Hotels because what do you know it might help and that is exactly the kind of state of affairs that the Emoluments Clause was meant to prohibit.
And these provisions and when the Constitution was originally put in place it didn’t contemplate judicial review so much as something to which you could appeal to the people.
Daniel B. Rodriguez: Well on that point even if there’s no judicial redress to this, he did put his hand on the Bible and take an oath to defend the Constitution. I could imagine that Congress in drawing up the house representatives and drawing up articles of impeachment could consider if in fact their belief that this is patently unconstitutional could have redress. In other words, there’d be non-judicial redress.
Eugene Kontorovich: There are non-judicial forms of redress, both through Congress and through the people themselves. But one thing I would never say about the violations of the Emoluments Clause is that they are patently unconstitutional because again, there are no cases and we really don’t know what an emolument is but we do know something about the sentence it’s in.
It’s in a sentence banning the receipt of gifts and titles of nobility and what do those things have in common, they are gratuities, they are pure freebies and that does not – Congress knows how to use the word commerce and transaction, the constitution knows how to use those words. But rather it seems to be discussing a category of pure benefit rather than benefit for consideration for normal business dealing.
I am not saying that means the Emoluments Clause doesn’t – I think anyone who says they know what it means, needs to specify much more their basis, one might have a feeling, but I think it is very far from clear.
Now as to the unprecedented question, I think there’s a great research project out there to do. George Washington did not put Mount Vernon into a blind trust when he was President and they continued to grow various cash crops. And interesting question would be, whether any of them were for export and whether they were export purely to private parties, to foreign accounts or princes or whether he took any effort or had any thought that was an important restriction.
Andrew Koppelman: And the question, it would be a violation of the Emoluments Clause if some foreign prince were to purchase Washington’s commodities at a 150% of their market value.
Daniel B. Rodriguez: Deborah, let me ask you a question, we haven’t been focusing so much on the Trump administration maybe with a thumb on the scale about the White House’s role in all this, but the Department of Justice can play a very, very important role as it does in all administrations and Senator Sessions be confirmed as attorney general.
Could you talk a little bit about the new role of the new Department of Justice?
Deborah Tuerkheimer: It’s going to look very different from the Department of Justice that we are used to; Jeff Sessions by all appearances is not interested in promoting civil rights which is sort of a fundamental component of what the Department of Justice is supposed to be doing. He has sort of indicated that LGBTQ rights are not a priority for him. He has indicated that women aren’t discriminated against in ways that he recognizes as actionable. We can expect that hate crimes will not be aggressively prosecuted, we can expect again sort of pull back on statements that the Obama administration made about the importance of trans-rights and protecting trans-folk. We can expect that criminal justice reform will be set back. There’s bipartisan consensus I believe that this is sort of important and that mass incarceration is real and it’s a problem we all need to confront, and yet, Jeff Sessions has been on the record sort of opposing these sorts of evolutions in the way that we do business in criminal justice.
Federal charging practices, we can expect will be far less liberal than they were under particularly Attorney General Eric Holder, and his leadership with regard to not aggressively prosecuting low-level drug dealers and doing everything in his power to be certainly protecting communities, but also recognizing that we need to be scaling back on incarceration. These are issues that, again, there’s some fairly widespread consensus about Jeff Sessions is very far too sort of outside the mainstream on these issues.
And I will say, I will say this as well, the Obama administration was very aggressive about using a pattern and practice statute to ensure that policing practices were constitutional. To ensure that in cities like Ferguson, and cities like Chicago, the police were not violating the constitutional rights of citizens. There too Jeff Sessions has put himself on the record opposing this kind of use of this statute, one for one for one, and we can expect to see much less in the way of kind of overseeing police departments, holding police department accountable for what I think Black lives matter has particularly put in the forefront of public consciousness.
Daniel B. Rodriguez: Thank you! So this is a time in our program I’ve done this in the past which I call borrowing from someone else lightning round. So there are so many issues we’re not going to get a chance to cover, but what I’d like to do is to go through a little bit of a checklist of some hot button issues all drawn not only from the headlines, but some issues that candidate Trump was talking about on the stump and see if you get your very short thoughts and what you think will be the fallout and what is to come, anybody can jump in, Takings.
So, eminent domain candidate Trump excoriated the Supreme Court’s decision in Kelo on the campaign trail, the case that gave a broad interpretation of the public use requirement on Takings Clause, any promise of the Trump administration with respect to Takings?
Eugene Kontorovich: It wouldn’t be up to the Trump administration, it would be up to the potential Justice Gorsuch and his successors and there has been a lot of backlash against Kilo in both the academy and in the states which have changed the laws to avoid replicating a Kelo like outcome. So it’s not inconceivable that the rule in Kelo which is extremely broad in its authorization for a private to private takings could be limited, though I don’t think it would be entirely reverse, because the prior Presidents before Kelo were not maybe universally expansive but were still very expansive.
Daniel B. Rodriguez: This too will be an issue for the courts, but also the Department of Justice may play some role and that’s affirmative action.
Andrew Koppelman: I would expect that under this Justice Department. The Justice Department will we quite hostile to affirmative action possibly to the point of bringing lawsuits against private entities that practice affirmative action, so you would really see a complete reversal and it’s just hard to tell, with Gorsuch’s vote, how the court would come out. I guess with the present court Kennedy would continue to be the decisive vote —
Daniel B. Rodriguez: Because Gorsuch is replacing Justice Scalia.
Andrew Koppelman: Yes. And Kennedy is willing to entertain affirmative action
if he can be persuaded that there is no alternative, which he sometimes can be.
Daniel B. Rodriguez: Interesting. So here’s an issue we’ve touched on Eugene, when we were talking about, and Andy, about issues of International Law and also Executive Power. President Trump’s talked quite a bit about getting out from under bad treaties or bad international agreements, and so this issue that might loom large in the coming administration which is the President’s power to unilaterally abrogate treaties or withdraw from foreign entanglements of different kinds.
Do you expect that to loom as an issue, we have heard about NAFTA and NATO paying for themselves, those are the big blockbuster ones, but of course as we know there are a number of other international agreements would they be on the chopping block in the Trump?
Eugene Kontorovich: So I think it’s extremely unlikely that the President will try to exit NAFTA, because it is almost unexitable, it is instantiated in hundreds, if not thousands of statutes and regulations domestically, and so, even if the treaty is formally terminated, which I think would be an extraordinarily drastic and consequential step in the sense that statutes will be obligated and limited in many ways.
He has spoken about terminating the Paris Climate Accord but that is not an example of the President’s power to make treaties. Because President Obama not wishing to submit it to the Senate made clear that it was not in fact a treaty, but merely an Executive Order which he signed and which could thus be changed by subsequent President.
Deborah Tuerkheimer: I think that does bring to mind another issue that we’ve not yet talked about which is the Trump administration and climate change. The Trump administration and environmental regulation, these are all serious concerns for people who do worry about these issues.
Daniel B. Rodriguez: One last question on this lightning round is, is the Trump administration’s role with respect to drugs, and in particular when I ask about marijuana been a lot of activity in the States California during the election enacted a law approving recreational use of marijuana puts down three states on board. There’s always been sort of looming in the background the question of what the feds would do if anything to come into conflict with those state initiatives, any reason to believe the Trump administration will jump in and try to contravene those states?
Deborah Tuerkheimer: Yeah, I think there’s reason to believe that that could happen. Again, Jeff Sessions has sort of put himself on record as being opposed to these liberal marijuana laws, whether there’s a counterbalance in other parts of state administration and they can kind of pull him back because it seems to go against the grain that you described, but for people who would look to the states to be sort of liberalizing and modernizing around marijuana, I think there’s cause for concern.
Daniel B. Rodriguez: Just to flip that around, could it be that the Republicans, not only the administration but also Republicans Congress, embrace federalism and States’ rights in some way, they were down to the benefit of those states that are acting, as Justice Brandeis famously said so many decades ago, laboratories of experimentation, in this case, with respect to marijuana.
Deborah Tuerkheimer: Right, in this upside-down world in which we find ourselves it’s really hard to know how these crosscurrents kind of result in policy change. There’s hostility to innovating when it comes to say California and its protection of immigrants. And so we can see that there are these strains within the Trump administration where President Trump seems to be inclined to sort of advance his position regardless of whether it’s consistent with what does he point out, Republicans have for quite some time been advocating.
Daniel B. Rodriguez: Let me just ask this by way of wrap up. If you peer into your crystal balls and where you’re looking now at this conversation four years from hence, maybe more nominees in the Supreme Court, maybe, maybe, maybe, maybe, and with respect to many different developments, how we look back at this term, this four years in terms of its impact on key issues of law, statutory and constitutional law?
Andrew Koppelman: It’s very hard to tell because the range of possible outcomes of this administration are enormous. There are some respects in which President Trump is simply a normal Republican President, certainly as soon as Rex Tillerson was confirmed as Secretary of State, all of those normal state department statements came out immediately after he was confirmed as Secretary of State. But we don’t know whether he will be allowed to do that, President Trump could fire him tomorrow and unilaterally lift sanctions and I think — hope that he’ll be able to keep that through Congress, we just don’t know, he could —
Steve Bannon has said that he thinks that maybe we’re going to have to go to war with China over those islands that it’s been constructing. So how we will look back really depends on what happens, in some ways he could be a normal President. If you got into a nuclear war with China that would be something that it would take a while for the human rights to recover from. So it’s not possible now to say what this is going to look like.
Daniel B. Rodriguez: Will you bring us to a happier note?
Deborah Tuerkheimer: I don’t know happier but I guess it will be a little bit more emphatic about the fact that I don’t think he’s a normal President by any stretch. I think that this is far outside the norm, I think that he’s extraordinary and in all sorts of ways and I don’t expect that that’s going to change in the course of the coming years. What I think is the unknown is the extent to which he will be checked and his impulses will be balanced by, for instance, a Congress that’s willing to sort of be involved meaningfully by the courts which we’ve talked some about by activism on the left.
To my mind that’s where there may be some reason for hope and for optimism is to see sort of these forces galvanized. I am not going to play stock in sort of President Trump coming to his senses and starting to behave in ways that are more respectful of the law, the Constitution, most vulnerable populations, most marginalized populations. I’m not going to wait for that.
But what I do hope is that we see over the coming years some resistance, some sort of meaningful show of force so that his goals, his plans, his agenda is somewhat tampered.
Daniel B. Rodriguez: Well, with that I want to wrap up. I want to thank our guests able Northwestern faculty members, Andy Koppelman, Eugene Kontorovich and Deb Tuerkheimer for joining us.
Thank you for listening, I’m Dan Rodriguez signing off from the Northwestern Pritzker School of Law.
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