Category Archives: Law: Constitutional Law

“Constitutionally, Matthew Whitaker is a Nobody”

If Neal K. Katyal and George T. Conway III write an op-ed together, you have to figure it’s going to be good.  And oh boy, is it good.

The two dissect the appointment of Matthew Whitaker as acting attorney general of the United States. And they stomp all over it.

Much of the commentary about Mr. Whitaker’s appointment has focused on all sorts of technical points about the Vacancies Reform Act and Justice Department succession statutes. But the flaw in the appointment of Mr. Whitaker, who was Mr. Sessions’s chief of staff at the Justice Department, runs much deeper. It defies one of the explicit checks and balances set out in the Constitution, a provision designed to protect us all against the centralization of government power.

If you don’t believe us, then take it from Supreme Court Justice Clarence Thomas, whom Mr. Trump once called his “favorite” sitting justice. Last year, the Supreme Court examined the question of whether the general counsel of the National Labor Relations Board had been lawfully appointed to his job without Senate confirmation. The Supreme Court held the appointment invalid on a statutory ground.

Justice Thomas agreed with the judgment, but wrote separately to emphasize that even if the statute had allowed the appointment, the Constitution’s Appointments Clause would not have. The officer in question was a principal officer, he concluded. And the public interest protected by the Appointments Clause was a critical one: The Constitution’s drafters, Justice Thomas argued, “recognized the serious risk for abuse and corruption posed by permitting one person to fill every office in the government.” Which is why, he pointed out, the framers provided for advice and consent of the Senate.

What goes for a mere lawyer at the N.L.R.B. goes in spades for the attorney general of the United States, the head of the Justice Department and one of the most important people in the federal government. It is one thing to appoint an acting underling, like an acting solicitor general, a post one of us held. But those officials are always supervised by higher-ups; in the case of the solicitor general, by the attorney general and deputy attorney general, both confirmed by the Senate.

Mr. Whitaker has not been named to some junior post one or two levels below the Justice Department’s top job. He has now been vested with the law enforcement authority of the entire United States government, including the power to supervise Senate-confirmed officials like the deputy attorney general, the solicitor general and all United States attorneys.

We cannot tolerate such an evasion of the Constitution’s very explicit, textually precise design. Senate confirmation exists for a simple, and good, reason. Constitutionally, Matthew Whitaker is a nobody.

Neal Katyal was an acting solicitor general under President Barack Obama and is a lawyer at Hogan Lovells in Washington. George T. Conway III is a litigator at Wachtell, Lipton, Rosen & Katz in New York. Conway is also a famous spouse and, incidentally, a Yale Law School classmate of mine.

Posted in Law: Constitutional Law, The Scandals | Leave a comment

If Trump Fires Rosenstein, Who’s Mueller’s New Boss?

Marty Lederman has a detailed answer in his (revised) post, Who Might Replace Rod Rosenstein and What Would it Mean for the Mueller and SDNY Investigations?: A Deep Dive.  Worth a read.

Posted in Law: Constitutional Law, The Scandals | Leave a comment

The Op-Ed

Everyone is talking about the NYT op-ed by the Trump appointee who sees him/herself as protecting the US from a clear and all-too-present danger in the Oval Office. I’m on the road, so I’m late to the party, but here in very summary form is my two cents, taking the op-ed as true for sake of discussion.

  1. Underminig the boss is often a moral problem, but it is only a constitional problem if you do it wrong. Manipulating the boss is different from just ignoring the boss. Playing bureaucratic games to get your way is probably a Washington passtime than is older than the White House. Flat out ignoring the boss’s orders is subversive of the constitutional order, a violation of a duty of loyalty to the boss, and arguably a violation of every appointee’s oath to preserve and protect the Constitution of the USA– a document that for better or much worse has made Trump the President in law as well as in name.
  2. What if the boss is morraly terrible? Ignoring the boss could be a very hard moral issue in extreeme cases. Some ends do justify some means. If the issue were the preservation of the Republic, or preservation of many lives, I think our author would have moral (but not legal) justification for the behavior. If the issues are, as we get the sense they are, ‘mere’ policy – stopping Trump doing things that are very very stupid but not existential dangers – then the moral justification for the illegality and personal disloyalty is much weaker. Quitting and saying why might be a better course.
  3. I am reminded of Daniel Drezner’s piece on whether you should work for Trump, and especially Elliot Cohen’s “I told conservatives to work for Trump. One talk with his team changed my mind”. The warning signs were there from the first.
  4. It’s hard to read the oped without speculating unkindly about the author’s motives. If your goal really were to subvert from within in the interst of the survival of the Republic, why would you advertise that until after the fact? That op-ed is not going to make the job easier. It might be justified if the goal were to bring down this President (and bring in Mike Pence – an improvement how exactly?), but there’s nothing in the four corners of the oped to support that view. Rather, it seems to me like an exercise in ass-covering, a marker that some weasel put down for the future so that after the whole con collapses he/she can disclaim the taint that–if there is any karma or justice–will follow everyone who was part of Operation FUBAR for the rest of their natural life and beyond.
  5. I’m also reminded of what the late great Charles L. Black, Jr. said about how he thought a government official should deal with the hypothetical ‘terroris with an A-bomb’ scenario. The scenario was and is deployed to test intuitions about whether torture could ever be justified–what people who say torture is never justified would do if they believed the terrorists’ claim to have put the ticking time bomb in a big city. Read the fuller account, but the takeaway is that if you decide conscience requires an illegal act, you have a moral duty to turn yourself in right afterwards and face the music, whether it’s prosccution or pardons and a medal.Our op-ed writer is not following that model.
  6. And finally,
Posted in Law: Constitutional Law, Law: Ethics, The Resistance | 3 Comments

Do You Have a Constitutional Right to Have the Government Safeguard Personal Data It Collects From You?

Most legal academics are happy to be cited by courts–it’s at least proof of relevance. But it’s better if the Judge agrees with you, and that’s not what happened this week when Judge Amy Berman Jackson of the District Court of the District of Columbia, discussed my article Government Data Breaches, 24 Berkley Tech. L. J. 1019, 1049 (2009).

My article argues, correctly I still believe, that if the government takes your personal data, and then mishandles it so that it leaks to your detriment, the government has committed an actionable harm:

The key case in establishing the contours of the Due Process right to compensation for certain government data breaches is Chief Justice Rehnquist’s opinion in DeShaney [v. Winnebago Cty. DSS, 489 U.S. 189 (1989)]. Chief Justice Rehnquist is an unexpected source for a major information privacy right, and DeShaney is a particularly unexpected locus for its elucidation. DeShaney is notorious as an opinion in which the Supreme Court held that the state of Wisconsin had no duty under the Constitution to protect a boy, the infamous “poor Joshua” of Justice Blackmun’s dissent, from a permanently disabling beating by his father. The absence of a duty was controversial because the state social services were on actual notice that Joshua had been repeatedly injured and was at risk. In finding that the Due Process clause imposed no duty of care on state social services regarding children residing with a parent, at least absent a statutory or regulatory undertaking to protect children from their parents, Chief Justice Rehnquist distinguished Joshua’s case from one where a duty would have existed. Mere notice was not enough; the state would have had a duty only if it had placed Joshua in circumstances where it “renders him unable to care for himself, and at the same time fails to provide for his basic human needs ….” The duty arises “from the limitation which it has imposed on his freedom to act on his own behalf’ not “its failure to act to protect his liberty interests against harms inflicted by other means.’ Chief Justice Rehnquist immediately added in a footnote that, “[e]ven in this situation, we have recognized that the State ‘has considerable discretion in determining the nature and scope of its responsibilities.'”

When the State takes a person’s data and holds it in a fashion outside the person’s control, the State has done to that data exactly what Chief Justice Rehnquist said was necessary to trigger Due Process Clause protection: it has “by the affirmative exercise of its power” taken the data and “so restrain[ed]” it that the original owner is unable to exert any control whatsoever over how the government stores or secures it. The government’s “affirmative duty to protect” the data “arises … from the limitation which it has imposed on his freedom to act on his own behalf’ to keep the data secure.’ Again, “it is the State’s affirmative act of restraining the individual’s freedom to act on his own behalf” which creates a duty on the government to keep the data secure. The State created the danger, and thus the State is responsible for the outcome.

The plaintiffs in sought to apply this theory to the massive data breach by the Office of Personnel Management, AKA the OPM hack. Plaintiffs claimed the government breached an actionable duty by failing to protect (or, as plaintiffs put it, being grossly negligent in failing to protect) their personal data.

Unfortunately, Judge Jackson did not agree (footnotes omitted):

Given … the absence of binding precedent one way or the other, this Court also finds it prudent to avoid wading into the legal waters surrounding the existence or scope of any constitutional right to informational privacy in general when it is not necessary to do so. And it is not necessary here because the NTEU claim is asking the Court to recognize a constitutional violation that no court has even hinted might exist: that the assumed constitutional right to informational privacy would be violated not only when information is disclosed, but when a third party steals it. See NTEU Compl. ¶¶ 96-98; NTEU’s Opp. at 25-44 (arguing that the government has an affirmative duty “grounded in the constitutional right to informational privacy” to safeguard plaintiffs’ private data). In other words, even if an individual who completes an SF 85 or SF 86 has a constitutional right to privacy in the information he or she is being asked to provide, it is well-established that the government has the right to gather that information. And even if it might violate the Constitution for the government to then deliberately disclose the information, there is no authority for the proposition that the Constitution gives rise to an affirmative duty — separate and apart from the statutory requirements enacted by Congress — to protect the information in any particular manner from the criminal acts of third parties. See, e.g., Harris v. McRae, 448 U.S. 297, 317-318 (1980) (discussing the Due Process Clause of Fifth Amendment and declining to “translate the limitation on governmental power implicit in the Due Process Clause” into an affirmative obligation on the government).

The sole source plaintiffs identify for the existence of the affirmative duty they would have this Court enforce is a law review article. NTEU’s Opp. at 37, citing A. Michael Froomkin, Government Data Breaches, 24 Berkley Tech. L. J. 1019, 1049 (2009) (“When the State takes a person’s data and holds it in a fashion outside the person’s control, the State has done to that data exactly what Chief Justice Rehnquist said was necessary to trigger Due Process Clause protection: it has `by the affirmative exercise of its power’ taken the data and `so restrain[ed]’ it that the original owner is unable to exert any control whatsoever over how the government stores or secures it. The government’s `affirmative duty to protect’ the data `arises . . . from the limitation which it has imposed on his freedom to act on his own behalf’ to keep the data secure.”). Given the absence of any binding precedent — or even any persuasive writing from other courts — that recognizes a constitutionally based duty to safeguard personal information, and the D.C. Circuit’s expressed skepticism about the existence of a right to informational privacy in the first place, this Court is compelled to hold that plaintiffs have failed to state a constitutional claim.

The thing is, my article anticipates Judge Jackson’s rejoinder:

One might object that the DeShaney holding stands for the proposition that when the government stands by and lets another do harm to a person, that person has no recourse unless the government has taken on an affirmative duty to protect. In this view, exposing private data on the web or losing an unencrypted database is not the harm. Rather, the harm comes from a third party’s use of the data, something for which this reading of DeShany says the government should not be blamed. But this is a misreading of De- Shaney because the analogy is incorrect. In DeShany, the State had no duty because it had never taken Joshua into care. The harms he suffered at his father’s hands were private wrongs, a direct transaction in which the government had no part. […]

Indeed, it was the claim that the government had a duty to intervene which was the heart of the plaintiffs case, and which the majority rejected.

Contrast this to a hypothetical lost database: there is no question that the government had taken full control of the data before it lost them. Once the government takes that control, the subject of the data is completely disempowered with regards to how the data will be protected. Therefore, it is nonsensical to suggest that when the government negligently allows a third party to access the data, that third party is the only relevant actor for Due Process purposes. The government remains the critical intermediary, the one actually responsible for allowing the loss. In the case of information controlled by the government, it is not a bystander, but rather a direct agent. The government’s active role in controlling the data, one that displaces the subject or owner of the data, is what creates the duty of care. Or as the Seventh Circuit stated, “The state must protect those it throws into snake pits, but the state need not guarantee that the volunteer snake charmer will not be bitten.” [Walker v. Rowe, 791 F.2d 507, 511 (7th Cir. 1986).]

In short, Judge Jackson links two issues that I think ought to be seen as separate. One issue is whether the Constitution creates a a generalized right to information privacy. Judge Jackson notes, fairly enough, that currently there is no judicial recognition of such a right. But that’s not the only question at issue here. Even in the absence of a general substantive constitutional duty to protect information privacy, I believe that the rule in Chief Justice Rehnquist’s DeShaney opinion compels the conclusion that when the government demands your data, takes it, and fails to care for it, that creates a valid claim.

Judge Jackson may be right that the D.C. Circuit is not ready to find a general constitutional right to information privacy, a right that likely would extend far beyond data breaches and into, for example, data collection practices. But why, even if we stipulate that Judge Jackson correctly reads the DC Circuit tea leaves on information privacy rights generally, does this tell us anything about the much narrower Due Process claim at issue in the OPM case?

One need not find a generalized right to information privacy to hold, following the logic of DeShaney, that the government has a duty of care when it creates the circumstances which both make the data vulnerable and makes self-help by the data subject impossible. What exactly that duty of care requires could certainly be debated, but whatever the level of care turns out to be, it surely must exceed the gross negligence alleged by the plaintiffs in the OPM case.

I should note that Judge Jackson cites one case in support of her assertion that the Due Process clause cannot create a governmental duty “to protect the information in any particular manner from the criminal acts of third parties. See, e.g., Harris v. McRae, 448 U.S. 297, 317-318 (1980) (discussing the Due Process Clause of Fifth Amendment and declining to “translate the limitation on governmental power implicit in the Due Process Clause” into an affirmative obligation on the government).” I think the citation to Harris is misplaced. Harris is a 1980 case; DeShaney was decided in 1989, and in case of conflict the later case ought to prevail. But in fact there is no conflict: Harris was a challenge to the Hyde Amendment, and in rejecting the challenge the Supreme Court stated that the Due Process Clause could not be invoked to create a requirement that Congress providing funding for something. Given the bedrock principle that “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law,” U.S. Const. Article I, § 9, Cl. 7, the Harris holding on this point seems clearly correct — but also irrelevant to the OPM case which is not about legislation or funding.

I think it’s only a matter of time before US law recognizes a right to have the government apply at least reasonable safeguards to personal information it holds. This case shows why that rule is necessary. I wonder if the plaintiffs will appeal?

Posted in Law: Constitutional Law, Law: Privacy | Leave a comment

Horrible

19 kids are shot every day in the United States.

I start from the view that the 2nd Amendment should be interpreted liberally, just like the 1st, 4th, 5th, or any amendment in the Bill of Rights should be. On the other hand, the 2nd Amendment is unique in that it has an explanatory, and thus perhaps limiting clause (“A well-regulated millitia…”), and I am also committed to the view that the Constitution is short enough that we should labor mightily to avoid surplussage. But on the gripping hand, the Supreme Court has made it clear that it cares not about the latter.

Certainly if I were advising a candidate for office today, I would not suggest making gun control a big issue beyond banning assault weapons or the like, as I doubt much narrower limits would stand up in court.

If we want meaningful gun control it would require a constitutional amendment. And I’m not sure I want to open the floodgates to undermining any part of the Bill of Rights, because who knows what would be next.

All that said, shooting 19 kids/day seems a very high price to pay for our liberties, even in a country of 320+ million people.

It puts me in mind of Shirley Jackson’s “The Lottery” — although this deadly lottery is rigged: “9 out of 10 children who get shot in the United States are between the ages of 12 and 17”; 8 out of 10 are boys; and, more than half of the child gun victims are nonwhite.

Incidentally, of those 19 kids shot per day about 3.5/day die from their wounds. 3.5 per day.

Posted in Law: Constitutional Law | 5 Comments

Impeachment Issue Spotter

In How Many Impeachable Offenses Can A President Commit In Nine Days?, UM law grad Howard Brilliant lists (and documents) what he calls 18 impeachable offenses committed in nine days:

  1. Removing DNI & CJCS from NSC and replacing them with a white supremacist[1];
  2. Unconstitutional discrimination against legal immigrants- including visa holders, lawful permanent residents, and reportedly even some U.S. Citizens- based on religion and national origin[2];
  3. Undermining confidence in our democracy by perpetuating meritless allegations of voter fraud[3];
  4. Constant and repeated demonstrations of hostility to first amendment rights[4][5];
  5. Intentionally and repeatedly lying to the American public[6][7][8];
  6. Using the Office of President to enrich himself and members of his family[9];
  7. Operating with extensive conflicts of business and personal interests[10];
  8. Receiving emoluments from foreign governments[11];
  9. Refusal to release his tax returns[12];
  10. Violating his lease with GSA for the Old Post Office[13];
  11. Potential subjection to blackmail by a foreign intelligence service allegedly in possession of compromising material[14];
  12. Continued associations with individuals he knew or should have known possessed ties to hostile foreign governments[15][16][17];
  13. Blatant disregard for established governmental norms and protocols[18][19];
  14. Issuing executive orders against the advice of and/or without consulting the Office of Legal Counsel or other participants in the review process[20][21];
  15. Apparent defiance of court orders[22][23];
  16. Failure to rule out the use of torture[24];
  17. Suffering from mental instability and/or psychological impairment[25]; and
  18. Being generally incompetent and unfit for office[26];

While I grasp that at the end of the day, grounds for impeachment may just be what two houses say it is, it seems to me that under a fair reading of the Constitution, most of these are not in fact impeachable offenses but just actions that are evil, stupid, or both.

Have a look and mark down which you think qualify, then take a look at my cull from the list:
Continue reading

Posted in Law: Constitutional Law, The Resistance | 2 Comments