tag:theconversation.com,2011:/africa/topics/separation-of-powers-10969/articles
Separation of powers – The Conversation
2024-01-10T13:32:18Z
tag:theconversation.com,2011:article/205371
2024-01-10T13:32:18Z
2024-01-10T13:32:18Z
A Supreme Court ruling on fishing for herring could sharply curb federal regulatory power
<figure><img src="https://images.theconversation.com/files/568288/original/file-20240108-19-gqgax9.jpg?ixlib=rb-1.1.0&rect=8%2C0%2C2986%2C1998&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Two cases centered on Atlantic herring could have widespread impacts on federal regulation.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/herring-is-seen-as-it-is-loaded-onto-a-lobster-fishing-boat-news-photo/1159494297">Joe Raedle/Getty Images</a></span></figcaption></figure><p>The Supreme Court heard oral argument on Jan. 17, 2024, in two cases that center on fisheries management, but could have broad impacts on federal regulatory power.</p>
<p>The question at the core of <a href="https://www.oyez.org/cases/2023/22-451">Loper Bright Enterprises v. Raimondo</a> and <a href="https://www.oyez.org/cases/2023/22-1219">Relentless Inc. v. Department of Commerce</a> is whether the Secretary of Commerce, acting through the National Marine Fisheries Service and following the <a href="https://www.fisheries.noaa.gov/resource/document/magnuson-stevens-fishery-conservation-and-management-act">Magnuson-Stevens Fishery Conservation and Management Act</a>, can require commercial fishers to pay for onboard observers whom they are required to take on some fishing voyages. In both cases, the plaintiffs assert that the Commerce Department has exceeded its legal authority. That claim turns on how much deference the court should give the agency’s interpretation of the Magnuson-Stevens Act. </p>
<p>The plaintiffs are challenging a nearly 40-year-old doctrine of federal administrative law, known as Chevron deference for the <a href="https://www.law.cornell.edu/supremecourt/text/467/837">1984 case</a> in which it was set forth. This tenet provides that when a federal statute is silent or ambiguous about a particular regulatory issue, courts <a href="https://www.law.cornell.edu/wex/chevron_deference">defer to the implementing agency’s reasonable interpretation of the law</a>. </p>
<p>In other words, if the agency and federal courts disagree about the “best” interpretation of a federal law, the courts cannot force the agency to accept their version of what the statute means or allows, so long as the agency’s own interpretation is reasonable.</p>
<p>During oral argument, the justices voiced concerns about issues including legal stability, past rulings and the proper relationship between federal courts and federal agencies. They also expressed differing views about how statutory interpretation actually works in practice. Several justices asked whether overruling Chevron would reopen prior decisions to new challenges. </p>
<p>Justice Neil Gorsuch, one of the Chevron doctrine’s most prominent critics, worried instead that deferring to regulators created legal instability by allowing agencies to change the law, flip-flopping when presidential administrations changed. Liberal Justices Sonia Sotomayor and Elena Kagan most clearly supported relying on agencies’ expertise, particularly in highly technical situations. </p>
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<figcaption><span class="caption">The Loper Bright and Relentless cases challenge the power of the federal regulatory state.</span></figcaption>
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<h2>Who pays for fishing monitors?</h2>
<p>Under the Magnuson-Stevens Act, eight regional <a href="https://www.fisherycouncils.org/about-the-councils">Fishery Management Councils</a> regulate fisheries in federal waters that lie more than 3 nautical miles from shore. When these fisheries are overharvested or in danger of becoming so, these councils create <a href="https://masglp.olemiss.edu/fisherymanagement/part9/">management plans</a> that are designed to end overfishing and bring the stock back to health. The National Marine Fisheries Service reviews the plans and publishes regulations to carry out those that it approves.</p>
<p>The law makes clear that these plans can require fishing boats to carry <a href="https://www.fisheries.noaa.gov/topic/fishery-observers">observers who monitor their catch</a>. These trained biological technicians collect data on what the vessel catches, what it throws back and how its fishing affects protected species such as marine mammals and sea turtles.</p>
<p>However, the law does not state whether federal regulators can require the fishing industry to pay for these observers. The general background presumption in federal regulatory law is that regulated entities pay their own compliance costs. As an example, since 1990 the North Pacific Fishery Management Council has required the industry to <a href="https://www.fisheries.noaa.gov/alaska/fisheries-observers/north-pacific-observer-program">partially fund its fishery observer program</a> for groundfish and halibut through <a href="https://www.fisheries.noaa.gov/alaska/commercial-fishing/observer-fee-collection-and-payment-north-pacific-groundfish-and-halibut">fees</a>. </p>
<h2>Targeting Chevron deference</h2>
<p>Loper Bright and Relentless Inc. are fishing boat owners who are challenging <a href="https://www.federalregister.gov/documents/2020/02/07/2020-00881/magnuson-stevens-fishery-conservation-and-management-act-provisions-fisheries-of-the-northeastern">2020 regulations</a> that require Atlantic herring fishers <a href="https://www.fisheries.noaa.gov/new-england-mid-atlantic/fisheries-observers/industry-funded-monitoring-northeast">to pay some costs for observers</a> on their boats. The Atlantic herring monitoring program seeks to put observers on 50% of fishing trips, with the National Marine Fisheries Service paying part of the cost and fishers paying the rest. </p>
<p>The companies complain that observers can cost up to $710 per day and reduce owners’ profits by up to 20%. The challengers in the Relentless Inc. case have fish-freezing equipment onboard their boats that enables them to stay longer at sea. Longer voyages mean they must pay more for the required herring monitors, even though on many days they will not be fishing for herring. Federal courts of appeals ruled in favor of the National Marine Fisheries Service in both cases.</p>
<p>The companies originally challenged multiple aspects of the 2020 regulations. However, the Supreme Court agreed to address only one question that each petition raised: whether the court should overrule the Chevron decision, or at least clarify that when a law is silent about an agency’s powers, federal agencies receive no deference from the courts when they interpret the scope of their own regulatory authority. </p>
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<a href="https://images.theconversation.com/files/568294/original/file-20240108-21-hjx07l.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Gorsuch, seated, gestures during testimony." src="https://images.theconversation.com/files/568294/original/file-20240108-21-hjx07l.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/568294/original/file-20240108-21-hjx07l.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=377&fit=crop&dpr=1 600w, https://images.theconversation.com/files/568294/original/file-20240108-21-hjx07l.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=377&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/568294/original/file-20240108-21-hjx07l.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=377&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/568294/original/file-20240108-21-hjx07l.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=474&fit=crop&dpr=1 754w, https://images.theconversation.com/files/568294/original/file-20240108-21-hjx07l.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=474&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/568294/original/file-20240108-21-hjx07l.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=474&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">Supreme Court Justice Neil Gorsuch, shown during his confirmation hearing on March 22, 2017, argued in a 2022 dissenting opinion that Chevron deference ‘deserves a tombstone no one can miss.’</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/SupremeCourtAbortionWhatJusticesSaid/7e5ff111125e438d9156e9a50db33b62/photo">AP Photo/Susan Walsh</a></span>
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<h2>Who decides what the law means?</h2>
<p>The Supreme Court created Chevron deference in a 1984 air pollution case, <a href="https://supreme.justia.com/cases/federal/us/467/837/">Chevron USA Inc. v. Natural Resources Defense Council Inc.</a> The case centered on the U.S. Environmental Protection Agency’s interpretation of the term “stationary source” in the Clean Air Act. </p>
<p>The EPA had decided that a “source” could be a facility that contained many individual sources of air pollutant emissions. This meant, for example, that a factory with several smokestacks could be <a href="https://www.epa.gov/history/bubble-policy#:%7E:text=Under%20EPA's%20%22bubble%20policy%2C%22,or%20better%20than%20previous%20limits.">treated as a single source</a> for regulatory purposes, as if it were enclosed in an imaginary bubble. </p>
<p>This approach benefited industry: A facility could reduce emissions from the sources that were cheapest to upgrade and let its expensive-to-fix sources keep polluting, so long as its overall emissions under the “bubble” met the Clean Air Act’s requirements. Environmentalists sued, arguing that every individual smokestack or pollution source needed to be regulated.</p>
<p>In upholding the EPA’s decision, the court created a two-step test for deciding whether to defer to a federal agency’s interpretation of a statute that it administers. In Step 1, the court asks whether Congress directly addressed the issue in the statute. If so, then both the court and the agency have to do what Congress directs. </p>
<p>In Step 2, however, if Congress is silent or unclear, then the court should defer to the agency’s interpretation if it is reasonable, because agency staff are presumed to be experts on the issue. Justice John Paul Stevens <a href="https://scholarship.law.columbia.edu/cgi/viewcontent.cgi?article=1461&context=faculty_scholarship">reportedly told his colleagues</a>, “When I am so confused, I go with the agency.” </p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1653031152184180736"}"></div></p>
<h2>Curbing the administrative state</h2>
<p>Chevron deference has given federal agencies considerable flexibility to use statutes to <a href="https://sgp.fas.org/crs/misc/R44954.pdf">address new and emerging problems</a> that Congress did not anticipate. </p>
<p>For example, the U.S. Fish and Wildlife Service now lists species for protection under the federal Endangered Species Act <a href="https://www.fws.gov/sites/default/files/documents/foreseeable-future-solicitor-memo-2009-01-16.pdf">based on “foreseeable” risks</a> to the species from climate change, even if most actual impacts are decades or even a century away. Similarly, courts deferred to the Department of Labor during the COVID-19 pandemic when it <a href="https://www.sullcrom.com/insights/blogs/2022/July/Fifth-Circuit-Rules-That-COVID19-Does-Not-Satisfy-the-Natural-Disaster-Exception-to-the-Warn-Acts-Notice-Requirement">protected workers from mass layoffs without warning</a>. </p>
<p>However, some members of the current Supreme Court – as well as <a href="https://sgp.fas.org/crs/misc/R44954.pdf">some federal appellate judges</a> – have criticized Chevron deference for two key reasons. </p>
<p>First, the doctrine gives executive branch agencies authority to interpret federal law. However, since the Supreme Court’s 1803 decision in <a href="https://supreme.justia.com/cases/federal/us/5/137/">Marbury v. Madison</a>, it has been the duty of courts – not federal agencies – to say what the law is. Justices <a href="https://scholarship.law.vanderbilt.edu/cgi/viewcontent.cgi?article=1029&context=vlr">Neil Gorsuch, Clarence Thomas</a>, <a href="https://crsreports.congress.gov/product/pdf/LSB/LSB10204">Samuel Alito and Brett Kavanaugh</a> have all indicated that they think Chevron deference allows federal agencies to usurp this core judiciary function.</p>
<p>Second, Chevron deference also arguably allows federal agencies to grab more regulatory authority than Congress intended them to have, usurping the legislative branch’s responsibility to make law and delegate authority. The current Supreme Court is particularly interested in <a href="https://www.skadden.com/insights/publications/2023/09/quarterly-insights/the-evolving-landscape-of-administrative-law">policing these alleged power grabs</a>. </p>
<p>Justices have stated this concern most obviously in the recently articulated “<a href="https://hls.harvard.edu/today/what-critics-get-wrong-and-right-about-the-supreme-courts-new-major-questions-doctrine/">major questions doctrine</a>,” which holds that agencies may not regulate on questions of “vast economic or political significance” <a href="https://crsreports.congress.gov/product/pdf/IF/IF12077">without clear directions from Congress</a>. This doctrine effectively limits the situations to which Chevron deference applies: The agency gets zero deference if it is trying to do something really new or disruptive without express authorization from Congress.</p>
<p>Litigation under the Magnuson-Stevens Act is <a href="https://law.fsu.edu/sites/g/files/upcbnu1581/files/JLUEL/jluel-v32n2-05-craig-danley.pdf">relatively rare</a>, and the Supreme Court has never before decided a case under this law. The fact that it chose to take these cases suggests to me that Chevron deference is about to die, or at least be substantially modified. </p>
<p>If that happens – especially with a gridlocked Congress – federal agencies’ authority will increasingly be limited to powers that Congress explicitly gave them, sometimes decades ago, and to whatever courts consider the “plain meaning” of the words Congress used. Such a result would reduce agencies’ abilities to deal effectively with contemporary needs and problems in areas ranging from health care to environmental protection, workplace safety and artificial intelligence.</p><img src="https://counter.theconversation.com/content/205371/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Robin Kundis Craig does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>
An important but controversial legal doctrine, known as Chevron deference, is at issue in two fishing cases. The outcome could affect many sectors across the nation.
Robin Kundis Craig, Robert C. Packard Trustee Chair in Law, University of Southern California
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/201789
2023-03-29T15:13:28Z
2023-03-29T15:13:28Z
Does democracy fuel corruption? Most Ghanaians don’t think so
<figure><img src="https://images.theconversation.com/files/516620/original/file-20230321-28-cxeomc.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The High Court in Accra, Ghana's capital. Strengthening the judiciary would ensure a better democratic outcome.</span> <span class="attribution"><span class="source">MyLoupe/Universal Images Group via Getty Images</span></span></figcaption></figure><p>Does democracy breed corruption – particularly in developing countries? </p>
<p>There are strong advocates of the theory. And strong detractors. </p>
<p>Some studies conclude that democracy aggravates corruption. For instance, noted scholar of public policy <a href="https://www.cambridge.org/core/books/abs/democracy-inequality-and-corruption/democracy-inequality-and-corruption/12039E2DE074F0097F7BB6EC842F2699#">Jong-Sung You’s</a> work explores the relationships between democracy, inequality and corruption. He <a href="https://www.cambridge.org/core/books/abs/democracy-inequality-and-corruption/democracy-inequality-and-corruption/12039E2DE074F0097F7BB6EC842F2699#">shows</a>in a study of three East Asian countries that democracy can worsen corruption when a country has high levels of inequality. This, in turn, increases clientelism and patronage politics and state capture. </p>
<p>Other studies show that democracy can help combat corruption. One <a href="https://doi.org/10.1080/00220380802468579">study</a> by academic Michael Rock, using data from multiple countries shows that corruption initially increased following democratisation. But that it declined later as the age of democracy increases – the turning point is between 10 to 12 years. </p>
<p>This ‘age of democracy’ theory indicates that as democracy gets older, it allows time for the rule of law to be strengthened and transparent and accountable institutions to take hold which are capable of controlling corruption. </p>
<p>Ghana provides an interesting case study. It has been a democracy for the last <a href="https://doi.org/10.1080/13510347.2023.2173178">29 years</a>. At the same time, corruption remains a monumental <a href="https://www.unodc.org/documents/corruption/Publications/2022/GHANA_-_Corruption_survey_report_-_20.07.2022.pdf">challenge</a>. </p>
<p>In a recent <a href="https://doi.org/10.1080/13510347.2023.2173178">paper </a> I explored the issue. I interviewed Ghanaian politicians, academics, anti-corruption activists, and journalists about whether democracy fuels corruption in Ghana. </p>
<p>A fifth of those interviewed argued that democracy fuels corruption in Ghana while about 80% disagreed. But most believed that the way democracy is practised is to blame for corruption – not democracy itself. </p>
<p>My study does not suggest there is less corruption in a dictatorship compared to democracy. Instead, I conclude that corruption is still prevalent in Ghana 29 years after democratic elections because the country has a flawed democracy. There has been a failure to establish and implement robust accountability mechanisms to control corruption effectively.</p>
<h2>Democracy fuels corruption</h2>
<p>My study drew on 25 in-depth interviews with politicians, academics, anti-corruption activists and media personnel. A number of arguments were put forward by the 20% who believe that democracy leads to more corruption. One was that democracy allows some people to gain power and amass illegitimate wealth without consequences. </p>
<p>A politician said:</p>
<blockquote>
<p>It looks like a group of friends come together to form a political party, maybe I will say, with the sole interest of looting the state with little intention of solving people’s problems. But unfortunately, we have only two main parties always positioned for power, and it is always family and friends, like a cartel, always come together, steal, and go and another will come.</p>
</blockquote>
<p>Others commented that politicians who win power through the polls loot state coffers to pay off past campaign expenses, finance future elections, and accumulate wealth for future use should they lose power. </p>
<p>This group also reported that political parties in power often shielded their corrupt members to protect party reputation and boost electability. This resulted in impunity.</p>
<p>Some also argued that securing justice in Ghana’s democratic system was hard to achieve. This allowed lawlessness and corruption to thrive. </p>
<p>As another politician said: </p>
<blockquote>
<p>Everybody is finding a way to see a judge and pay something, and the prosecutor fails to go to court or drops cases, making people continue to misappropriate public funds because they know they can get away with it.</p>
</blockquote>
<p>This points to the fact that the rule of law and checks and balances in government are weak. </p>
<h2>Democracy isn’t the problem</h2>
<p>A range of arguments were put forward among the 80% who believed democracy could not be blamed for persistent corruption. In their view, democracy has helped promote information flow, shedding more light on corruption than in authoritarian regimes. </p>
<p>A media practitioner said: </p>
<blockquote>
<p>Whether military or civilian rule, corruption is there. I don’t think democracy in itself has contributed to the problem of corruption. Suppose we lived in a country where there was no democracy, if a monarchy or a military ruler that did something wrong in government, you couldn’t freely come out to talk about it. Democracy has instead helped us talk about it and bring corruption issues to bare, at least in the public domain.</p>
</blockquote>
<p>A political scientist and anti-corruption activist put it this way:</p>
<blockquote>
<p>No one can say those authoritarian regimes do not see or harbour corrupt practices except that in authoritarian regimes or dictatorship, information flow is limited, so you don’t get to know.</p>
</blockquote>
<p>The fact that democratic freedoms had facilitated information flow and shed light on corruption had created an erroneous impression that democracy fuelled corruption more than authoritarian regimes. </p>
<h2>The practice is what counts</h2>
<p>In response to the question on whether democracy has helped fuel corruption in Ghana, one respondent, a political science scholar, said:</p>
<blockquote>
<p>I don’t think so. It is rather the corrupt practice of democracy that brings about corruption. The corrupt practice of democracy that brings about winner-takes-all politics – we have won, it is our time to chop {enjoy} – that is what brings about corruption. But democracy itself wouldn’t bring about corruption.</p>
</blockquote>
<p>Another interviewee commented:</p>
<blockquote>
<p>The politics of democracy fuel corruption, but it is not the democratic system of government that fuels corruption. It is the way we do it {democracy}, the way we practise that sometimes fuels corruption.</p>
</blockquote>
<p>Other participants commented that monetisation of elections and the lack of transparency in political party funding produced corrupt leaders. This made it difficult to combat corruption.</p>
<p>Also, according to interviewees, Ghana’s 1992 constitution provided insufficient checks and balances. For example, the electoral system enables a winner-takes-all politics in which the group, or party, that wins at the polls (and their allies) are able to monopolise resources. </p>
<h2>Next steps</h2>
<p>For democracy to reduce corruption, several measures are needed. These views echo arguments made by scholars <a href="https://doi.org/10.1080/13510347.2015.1081896">Landry Signé and Koiffi Korha</a>. </p>
<p>Research participants emphasised addressing extreme executive power while strengthening the rule of law and horizontal accountability institutions. These include the legislature, the judiciary, and auditing and anti-corruption bodies.</p>
<p>Participants also recommended sustained public pressure on whoever is in power to ensure political commitment to combating corruption.</p><img src="https://counter.theconversation.com/content/201789/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Joseph Yaw Asomah does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>
Ghana’s flawed democracy has failed to establish mechanisms to effectively control corruption.
Joseph Yaw Asomah, Assistant Professor, University of Manitoba
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/199219
2023-02-08T11:00:18Z
2023-02-08T11:00:18Z
State capture in South Africa: time to think differently about redress and recovering the stolen loot
<figure><img src="https://images.theconversation.com/files/508584/original/file-20230207-13-4il90j.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Matshela Koko, former acting group CEO of Eskom, testifies at the state capture commission in 2021. </span> <span class="attribution"><span class="source"> Luba Lesolle/ Gallo Images via Getty Images</span></span></figcaption></figure><p>South Africans are plunged into darkness daily by <a href="https://www.dailymaverick.co.za/article/2022-12-12-dark-dumb-and-dangerous-inside-south-africas-perfect-electrical-storm/">rolling power cuts</a>. These are a stark reminder of the destruction that years of state capture wreaked on Eskom, the state-owned <a href="https://www.gov.za/documents/judicial-commission-inquiry-state-capture-report-part-4-volume-4-29-apr-2022-0000">power utility</a>. </p>
<p>Eskom’s inability to meet the energy needs of citizens and the economy is now the undeniable example of how state capture made parastatals and other state institutions ineffective. The country urgently needs action to recover the stolen funds and fix the economy. </p>
<p>So far, President Cyril Ramaphosa has offered only a few general targets, and outcomes have been dissatisfying. For example, the “<a href="https://www.thepresidency.gov.za/speeches/address-president-cyril-ramaphosa-response-state-capture-commission-report%2C-union-buildings%2C-tshwane">total of R2.9 billion</a>” that he said law enforcement agencies have recovered is only a small fraction of the estimated <a href="https://www.moneyweb.co.za/news/south-africa/state-capture-scorecard-r500bn-looted-zero-assets-recovered/">R500 billion</a> stolen through state capture. Impunity lies at the root of this mess.</p>
<p>The culture of impunity has lingered since the presidency of <a href="https://pari.org.za/betrayal-promise-report/">Jacob Zuma</a>. If it is to be replaced with a new era of integrity and accountability, a lot more needs to be done. But what, and how exactly?</p>
<p>In my <a href="https://journals.co.za/doi/full/10.2989/CCR.2022.0001">paper</a> I answer this question by proposing a workable, constitutionally congruent plan. I lay the foundations for a new anti-corruption redress system which would help government to recover the money and restore dignity to the people of South Africa.</p>
<p>The starting point in my argument is that the constitutional <a href="https://civicsacademy.co.za/what-is-the-separation-of-powers/">separation of powers</a> – the division of state authority and core functions – includes a fourth branch of state. It’s best described as the “integrity and accountability branch” and it should include the <a href="https://journals.co.za/doi/full/10.2989/CCR.2022.0001">prosecuting authority</a>. </p>
<p>When the special role of the prosecuting authority is thus understood, prosecutorial policy can be harnessed to begin recovering the illegal profits of state capture. This should start urgently – pending the necessary legislative intervention – with the use of the internationally recognised redress tool, the non-trial resolution. This tool can be adjusted to fit the South African constitutional context.</p>
<h2>Non-trial resolutions reimagined</h2>
<p>Non-trial resolutions are mechanisms to resolve corruption cases without the need for a full criminal trial. Criminal trials entail an onerous burden of proof, “beyond reasonable doubt”. They also tend to be protracted and costly to run. Economic corruption cases are especially difficult to prosecute, given the complex nature of the fraud, which tends to cross international borders. </p>
<p>Non-trial resolutions take various forms and are used <a href="https://www.unodc.org/documents/treaties/UNCAC/WorkingGroups/workinggroup2/2021-September-6-10/CAC-COSP-WG.2-2021-CRP.1.pdf">extensively internationally</a>. They include a plea bargain, a deferred prosecution agreement, a non-prosecution agreement and a more <a href="https://assets-global.website-files.com/5e0bd9edab846816e263d633/5f15e0a4a35dd9b7abd817b1_FACTI%20BP6%20Foreign%20bribery.pdf">informal declination to prosecute</a> (for example, by way of letter).</p>
<p>To ensure localised fit and legitimacy, these instruments should collectively be termed “anti-corruption redress” mechanisms. In my <a href="https://journals.co.za/doi/full/10.2989/CCR.2022.0001">article</a>, I explain how and why it would be constitutional to start concluding such non-trial resolutions with state capture offenders pending the legislative introduction of the anti-corruption redress system I propose. </p>
<p>For now, prosecutorial policy (for example, by way of directives) could be issued to make use of a potentially valuable section of the <a href="https://www.justice.gov.za/legislation/acts/1998-032.pdf">National Prosecuting Authority Act, 1998</a>: section 38. It allows the prosecuting authority to use specialists (such as forensic and legal experts) in “specific cases”. </p>
<p>State capture is surely a “specific case” deserving special attention. Section 38 could thus be used to conclude deferred prosecution agreements, or other types of anti-corruption redress agreements. These would be concluded with people or entities who report their illegal profits themselves, or who are identified by whistle-blowers. This way, money can start flowing back into the public purse sooner rather than later.</p>
<p>These agreements would set out the redress deliverables (such as paying back the money back by a certain date and rehabilitating the pillaged entity) and other rights and obligations of the parties. At this stage, no penalties for wrongdoing should be imposed – that needs legislative backing because the law presumes innocence.</p>
<p>But, to reiterate, recouping the ill-gotten profits of state capture can start (via prosecutorial policy). This component of my proposal is inspired by former Constitutional Court judge Johan Froneman’s formulation of the “no profit, no loss principle” in the <a href="http://www.saflii.org/za/cases/ZACC/2015/7hoa.pdf">2014 case of All Pay 2</a>. </p>
<p>The nub of this principle is that although penalties cannot be imposed without the proper application of the law, public accountability means that there is no right to profits unlawfully gained. The Zondo Commission <a href="https://www.statecapture.org.za/site/information/reports">reports</a> provide details of who gained illegally.</p>
<h2>Legislative reform</h2>
<p>While the disgorgement (surrender) of the illegal profits gets underway as described above, the foundations can be laid for more comprehensive legislative reform. This is the third component of my proposal. I suggest that the country doesn’t need entirely new legislation on non-trial resolutions as suggested in the <a href="https://www.statecapture.org.za/site/files/announcements/673/OCR_version_-_State_Capture_Commission_Report_Part_1_Vol_I.pdf">Zondo reports</a>. </p>
<p>Rather, it should simply amend section 38 of the <a href="https://www.gov.za/documents/national-prosecuting-authority-act#:%7E:text=The%20National%20Prosecuting%20Authority%20Act,provide%20for%20matters%20connected%20therewith">National Prosecuting Authority Act, 1998</a> to introduce the fully fledged anti-corruption redress system. As part of this system, there would be an anti-corruption redress body – perhaps a commission as a subset of the prosecuting authority’s existing <a href="https://www.npa.gov.za/specialised-commercial-crime-unit">Specialised Commercial Crimes Unit</a>. It would need to be staffed with the right mix of experts. Cases would be determined on the lower civil standard of proof: “a balance of probabilities”. </p>
<p>The legislative intervention should provide for administrative fines (basically civil monetary penalties). These should be a percentage of the unlawful benefit the party gained from the corrupt deal. Administrative fines are already used in the country’s <a href="https://www.gov.za/documents/competition-act-guidelines-determination-administrative-penalties-prohibited-practices-17">competition</a> and <a href="https://cer.org.za/wp-content/uploads/2011/11/Fourie-M-SAJELP-Paper-June-2009-Final.pdf">environmental</a> law regimes. They can improve deterrence and enhance redress. </p>
<p>The proposed commission would determine the appropriate redress measures in a given case. It would weigh factors in the “redress balance” such as the extent of the harm, repeat offending, willingness to make reparations and good faith. So, for example, there might be an agreement to defer (delay) criminal prosecution if the offender displays good faith, cooperates and meets all repayment (and other reparation) obligations. The findings of the commission would be <a href="https://journals.co.za/doi/full/10.2989/CCR.2022.0001">open to review by a tribunal of record</a> – much like the competition tribunal.</p>
<p>In conclusion, the proposed anti-corruption redress system is fundamentally about the right mix of retributive and restorative justice to restore the dignity of the people of South Africa. It would help rebuild public trust in government, reduce impunity and usher in an era of enhanced integrity and accountability. Now is the time to make this happen.</p><img src="https://counter.theconversation.com/content/199219/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Lauren Kohn received funding from the Oppenheimer Memorial Trust for her Doctoral Project. </span></em></p>
The culture of impunity that has lingered since the presidency of Jacob Zuma has to give way to a new era of integrity and accountability.
Lauren Kohn, Scholar & Legal Expert: Administrative & Constitutional Law, Department of Public Law (UCT); Attorney of the High Court of SA; Young Research Fellow (UCT); Founder: www.SALegalAdvice.co.za, University of Cape Town
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/191778
2022-10-05T13:47:05Z
2022-10-05T13:47:05Z
Lesotho bungles political reforms, risking fresh bout of instability after 2022 poll
<figure><img src="https://images.theconversation.com/files/488261/original/file-20221005-11-ac6y6n.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Lesotho citizens queue to vote in a previous national elections. </span> <span class="attribution"><span class="source">EPA-EFE/ Kim Ludbrook</span></span></figcaption></figure><p>The Kingdom of Lesotho – a small landlocked country in southern Africa with a population of 2.1 million people – has failed to introduce key political reforms needed to bring stability to the country. This setback is the latest of many false starts since the reform process started in earnest <a href="https://production-new-commonwealth-files.s3.eu-west-2.amazonaws.com/s3fs-public/documents/Working%20Towards%20a%20Sustainable%20Democracy%20in%20Lesotho_0.pdf?VersionId=MfSrWj0t_CbJ8EFPyxOZbG11v1WT9QgA">after the 2012 elections</a>. </p>
<p>It had been hoped that <a href="https://www.africanews.com/2022/07/21/lesothos-general-elections-scheduled-on-october-7//">the 2022 national poll</a> would be held under a new constitutional framework that would help end conflicts in key areas such as the formation of government, coalitions and the electoral system. Lesotho’s history has been punctuated by spasms of political instability <a href="https://www.eisa.org/pdf/JAE14.2Weisfelder.pdf">since independence in 1966</a>.</p>
<p>The reform drive was supposed to have been completed by the end of the five-year term of the latest parliament, on 13 July 2022. Parliament tried, without success, to enact the reforms bill before its dissolution. Even frantic and chaotic efforts to pass it at midnight before the parliament dissolved <a href="https://www.youtube.com/watch?v=2LVg0UI1AVs">failed</a>. </p>
<p>A chaotic process then followed which involved parliament being recalled and passing the <a href="https://www.maserumetro.com/news/politics/rakuoane-presents-10th-amendment-act-to-basotho/">flagship</a> reforms bills. But this decision was <a href="https://nationalassembly.parliament.ls/wp-content/uploads/2022/09/29th-Monday.pdf">struck down</a> by both the High Court and Court of Appeal. </p>
<p>This, in effect meant the collapse of the reform programme. </p>
<p>The net effect is that elections will be held on the basis of the old constitutional framework. This is the same framework that is to blame for recurrent political instability in the country.</p>
<p>Prime Minister Majoro’s government is the fourth on whose watch the reform process collapsed, despite enormous resources being invested in the initiative. The causes for the collapse are common in all four attempts. </p>
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Read more:
<a href="https://theconversation.com/book-review-zakes-mdas-subversive-take-on-lesothos-traditions-174063">Book review: Zakes Mda's subversive take on Lesotho's traditions</a>
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<p>In my view, two key reasons lie behind the failure of political reforms in Lesotho. The first is lack of interest by successive governments. The second is the poor design of the reform processes. </p>
<h2>Chaotic collapse</h2>
<p>The way in which the latest reform attempts collapsed provides a good example of why Lesotho has struggled to get itself on a new political path. It reflects the deep tensions in the country grounded in the fact that political elites are driven by self-aggrandisement.</p>
<p>After parliament’s term ended without passing the “omnibus bill”, the government came under immense pressure from the Southern African Development Community (SADC), which has been trying to facilitate the reforms, as well as donors and civil society to recall the dissolved parliament to finish the reforms process. </p>
<p>The prime minister, Moeketsi Majoro, then declared a “state of emergency” to create grounds for King Letsie III to recall the parliament. But the premise for the recall – that failure to pass the constitutional amendment bill and the National Assembly Electoral (Amendment) Act constituted a state of emergency – was wrong. </p>
<p>The recalled parliament purportedly passed the bill into law following a chaotic process on the 29 August 2022. But the recall of parliament was challenged in the courts by <a href="https://www.thepost.co.ls/comment/news-pst/a-massive-blow-to-government/">a journalist and a lawyer</a>. In a <a href="https://www.youtube.com/watch?v=9tchockhuMA">landmark decision</a>, both the High Court and the Court of Appeal in separate judgements rightly ruled that the recall of parliament was unconstitutional as there was no state of emergency justifying such recall. </p>
<p>Consequently, all the business it transacted after its lawful dissolution on 13 July 2022, including passing the reforms law, was declared null and void.</p>
<h2>Lack of interest in fundamental reforms</h2>
<p>Despite their pretensions to support reforms, it is clear that governments in Lesotho are not interested in the fundamental reforms to the structure of government. None wants to let go of the unfettered powers that the prime minister enjoys under the current dispensation.</p>
<p>The current design enables manipulation of other branches and institutions of government by the executive. For instance, the prime minister can prorogue and dissolve parliament based on a whim. This is reflective of the weak checks and balances on the use of executive powers.</p>
<p>The prime minister also enjoys unfettered powers to appoint all the other vital institutions - the judiciary, security agencies, oversight institutions and the civil service.</p>
<p>Successive prime ministers have not hesitated to use these powers to torment political opponents, and enhance their political prospects. The result has been recurring instability.</p>
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Read more:
<a href="https://theconversation.com/the-monarch-in-lesotho-should-be-given-some-powers-but-not-extreme-powers-165914">The monarch in Lesotho should be given some powers: but not extreme powers</a>
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<p>To curb unfettered executive powers, the <a href="https://sundayexpress.co.ls/nra-challenges-dissolution/">now-defunct National Reforms Authority</a>, proposed amendments that provided for checks and balances. But even before the failure to pass the amendments, the government had removed proposals to ensure minimal changes to the status quo.</p>
<h2>Poor design</h2>
<p>Political reform processes are generally informed by <a href="https://scholarlypublications.universiteitleiden.nl/access/item%3A2871469/view">five principles of constitution-making</a>. These are proper agenda-setting (preparation), awareness and consultation, deliberation, adoption and implementation. </p>
<p>In Lesotho’s case, these phases were not clearly visible in the design of the reform process, hence it met incessant headwinds at every turn until it collapsed. </p>
<p>For instance, there was no proper agenda-setting. Consequently, the reform agenda was not clearly demarcated or agreed on. While there were five broad themes – <a href="https://lesotho.un.org/sites/default/files/2020-02/Multi-stakeholder%20National%20Dialogue%20Plenary%20II%20Report%20A.pdf">judiciary, parliament, civil service, media, security and the constitution</a> – the extent to which the reform could go was unclear.</p>
<p>As result, competing political interests were often not moderated so that everyone could have a clear vision of what the new constitution should look like. The government view prevailed, as usual, causing discontent among other players.</p>
<p>Similarly, the role that would be played by citizens in the reforms process has been just as unclear. </p>
<p>Another fault line in the process was that the act that <a href="https://nra.org.ls/wp-content/uploads/filr/7272/Act%20No.%204%20of%202019.pdf">was passed</a> in 2019 to guide the reforms itself created more confusion.</p>
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Read more:
<a href="https://theconversation.com/the-village-pope-has-passed-remembering-tsepo-tshola-lesothos-musical-giant-164650">The Village Pope has passed: remembering Tsepo Tshola, Lesotho's musical giant</a>
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<p>The new law saw the establishment of a multi-stakeholder constituent assembly called the <a href="https://nra.org.ls/">National Reform Authority</a>. But its relationship with parliament remained opaque. Most importantly, the parliament’s traditional legislative authority remained unaffected by it.</p>
<p>Another weakness of the process was the way in which it ran rough shod over the processes for changing the constitution in Lesotho: these are by an ordinary amendment by simple majority, two-thirds in both houses and a referendum. </p>
<h2>Way forward</h2>
<p>After the elections the new parliament must pass a new reforms law. Such a law must be based on the principles that have emerged following lessons in the many constitution-making exercises throughout the continent.</p>
<p>The most notable experiences are those in Kenya, South Africa, South Sudan and Zimbabwe. The law must carefully delineate the role of stakeholders such as government, other political players, civil society, experts, and, much more importantly, the public. </p>
<p>A careful design of the process and how various stakeholders participate in the process is the greatest lesson from many <a href="https://brill.com/view/journals/aas/13/4/article-p429_3.xml">constitution-making experiences in Africa</a>. </p>
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Read more:
<a href="https://theconversation.com/africans-want-consensual-democracy-why-is-that-reality-so-hard-to-accept-164010">Africans want consensual democracy – why is that reality so hard to accept?</a>
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<p>Inevitably, such a process is bound to reduce the classical powers of parliament. Parliament cannot regard a law passed through such a broad-based consultation, where agreements and compromises have been secured, as an ordinary piece of legislation with which it can do whatever it likes.</p><img src="https://counter.theconversation.com/content/191778/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Hoolo 'Nyane does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>
Despite their pretensions to support reforms, it is clear that successive governments are not interested in the reform.
Hoolo 'Nyane, Head of Department, Public and Environmental Law Department, University of Limpopo
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/187348
2022-07-21T12:24:47Z
2022-07-21T12:24:47Z
Biden announces new climate change actions but holds an emergency declaration in reserve
<figure><img src="https://images.theconversation.com/files/475256/original/file-20220720-24-bqv1d9.jpg?ixlib=rb-1.1.0&rect=50%2C0%2C5568%2C3700&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">President Joe Biden speaks about climate change at Brayton Point in Somerset, Mass., on July 20, 2022.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/president-joe-biden-addresses-the-crowd-and-gathered-media-news-photo/1242019289">Joseph Prezioso/Anadolu Agency via Getty Images</a></span></figcaption></figure><p>On July 20, 2022, President Joe Biden traveled to a former coal-burning power plant in Massachusetts that is being converted into a manufacturing site for offshore wind power equipment. Biden announced millions of dollars in funding for climate change measures, including upgrading infrastructure, weatherizing buildings and installing cooling in homes. He also touted job growth from clean energy production and pledged to use all of his executive power to reduce U.S. greenhouse gas emissions.</p>
<p>But Biden did not declare a national climate emergency – a step that some <a href="https://www.markey.senate.gov/news/press-releases/markey-merkley-sanders-colleagues-sound-alarm-climate-emergency-declaration-from-president-biden">Democratic officials</a> and <a href="https://www.foxnews.com/politics/activists-march-through-dc-demanding-biden-declare-a-climate-emergency">activists</a> have urged after Democratic Sen. Joe Manchin seemingly <a href="https://www.cnbc.com/2022/07/15/manchin-balks-at-climate-and-tax-pieces-of-biden-agenda-bill-but-backs-health-care-provisions.html">blocked legislative action</a> and the Supreme Court <a href="https://theconversation.com/the-supreme-court-has-curtailed-epas-power-to-regulate-carbon-pollution-and-sent-a-warning-to-other-regulators-185281">limited the Environmental Protection Agency’s power</a> to regulate greenhouse gas emissions.</p>
<p>According to White House officials, an emergency declaration <a href="https://www.washingtonpost.com/climate-environment/2022/07/18/biden-climate-emergency-manchin/">remains an option</a>. As a legal scholar who has analyzed <a href="https://www.ucpress.edu/book/9780520343948/contested-ground">the limits of presidential power</a>, I believe that declaring climate change to be a national emergency could have benefits, but also poses risks.</p>
<p>Taking that route sets an important precedent. If presidents increasingly make free use of emergency powers to achieve policy goals, this approach could become the new normal – with a serious potential for abuse of power and ill-considered decisions.</p>
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<figcaption><span class="caption">President Joe Biden has proposed sweeping action to slow climate change, but has failed to muster majority support in the closely divided Senate.</span></figcaption>
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<h2>Yesterday, the border; today, the climate</h2>
<p>President Donald Trump <a href="https://www.nytimes.com/2019/02/15/us/politics/national-emergency-trump.html">declared a national emergency on border security</a> on Feb. 15, 2019, after Congress <a href="https://www.vox.com/policy-and-politics/2019/2/14/18224457/congress-border-security-deal">refused to fund</a> most of his US$5.7 billion request for border wall construction. As Trump’s intent became clear, Republican Sen. Marco Rubio <a href="https://www.vox.com/policy-and-politics/2019/1/11/18178438/national-emergency-marco-rubio-precedent-democrats-climate">warned</a> that “tomorrow the national security emergency might be, you know, climate change.” </p>
<p>Rubio was right to take this possibility seriously. In my view, declaring a climate emergency would probably be legal and would unlock provisions in many laws that authorize the president or subordinates to <a href="https://www.brennancenter.org/our-work/analysis-opinion/trumps-hidden-powers">take specific actions under a national emergency declaration</a>. </p>
<p>Like Trump, Biden might use the power to divert military construction funds to other projects, such as renewable energy projects for military bases. Biden could also use trade measures – for example, restricting imports from countries with high carbon emissions, or perhaps imposing a carbon fee on goods from those countries to level the playing field.</p>
<p>Another potential action would be ordering businesses to produce certain goods. The Trump administration used the Defense Production Act, a law dating from the 1950s, to <a href="https://www.nytimes.com/2020/02/28/us/politics/trump-coronavirus.html?action=click&module=Spotlight&pgtype=Homepage">expand production of medical supplies for treating coronavirus patients</a>. Biden has already used the law to accelerate domestic production of <a href="https://www.whitehouse.gov/briefing-room/statements-releases/2022/06/06/fact-sheet-president-biden-takes-bold-executive-action-to-spur-domestic-clean-energy-manufacturing/">solar panel parts, insulation and other clean energy technologies</a>. </p>
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<a href="https://images.theconversation.com/files/475170/original/file-20220720-18-q959u5.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Trump gives a thumbs-up sign in front of a section of newly constructed wall." src="https://images.theconversation.com/files/475170/original/file-20220720-18-q959u5.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/475170/original/file-20220720-18-q959u5.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=365&fit=crop&dpr=1 600w, https://images.theconversation.com/files/475170/original/file-20220720-18-q959u5.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=365&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/475170/original/file-20220720-18-q959u5.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=365&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/475170/original/file-20220720-18-q959u5.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=459&fit=crop&dpr=1 754w, https://images.theconversation.com/files/475170/original/file-20220720-18-q959u5.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=459&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/475170/original/file-20220720-18-q959u5.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=459&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">President Donald Trump tours a section of the U.S.-Mexico border wall in Alamo, Texas, on Jan. 12, 2021.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/president-donald-trump-tours-a-section-of-the-border-wall-news-photo/1230552879">Mandel Ngan/AFP via Getty Images</a></span>
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<p>After declaring an emergency, Biden could provide loan guarantees to critical industries in order to help finance goals such as expanding renewable energy production. Oil and gas leases on federal lands and in federal waters contain clauses that allow the Interior Department to <a href="https://www.govinfo.gov/content/pkg/USCODE-1994-title43/pdf/USCODE-1994-title43-chap28-subchapIII_2-sec1341.pdf">suspend them during national emergencies</a>, though that seems unlikely in the immediate future given current gas prices. </p>
<p>Declaring a national emergency would also enable the president to limit oil exports to other countries – although this also appears unlikely given the war in Ukraine, which has <a href="https://markets.businessinsider.com/news/commodities/us-crude-oil-exports-europe-surpass-asia-russia-ukraine-sanctions-2022-7">increased European reliance on U.S. oil</a>. Biden also could limit U.S. financing for foreign coal projects.</p>
<h2>Would it be legal?</h2>
<p>Emergency powers are only available assuming climate change qualifies as an emergency. The law empowering presidents to declare national emergencies doesn’t define the term.</p>
<p>Among recent precedents, President Barack Obama <a href="https://obamawhitehouse.archives.gov/the-press-office/2015/04/01/executive-order-blocking-property-certain-persons-engaging-significant-m">declared a cybersecurity emergency</a>, and Trump declared that steel imports were <a href="https://www.vox.com/2018/3/1/17066838/white-house-trump-steel-tariffs">an urgent threat to national security</a>. </p>
<p>It’s not hard to make a case that climate change is an equally critical problem, especially with much of the world suffering through <a href="https://www.nytimes.com/2022/07/20/world/europe/uk-europe-heat-wave-fires.html">record-breaking heat waves and wildfires</a>. There’s also clear support for the idea that climate change is <a href="https://www.defense.gov/News/News-Stories/Article/Article/2582051/defense-secretary-calls-climate-change-an-existential-threat/">a major national security threat</a>. </p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1549759763281584128"}"></div></p>
<p>To date, courts have never overturned a presidential emergency declaration, and a climate emergency would probably not be an exception. Legal challenges to Trump’s border security declaration <a href="https://www.reuters.com/article/us-usa-immigration-court/u-s-appeals-court-stays-judges-ruling-blocking-military-funds-for-border-wall-idUSKBN1Z806H">failed</a>. </p>
<p>However, the Supreme Court’s recent decision in <a href="https://www.oyez.org/cases/2021/20-1530">West Virginia v. EPA</a> adds a wild card to the legal analysis. The court ruled that certain actions are so important that they <a href="https://www.govexec.com/management/2022/07/how-supreme-courts-epa-decision-will-upset-administrative-world/374557/">require extra clear authority from Congress</a>. How the Court would apply this doctrine in the context of the National Emergencies Act remains unclear.</p>
<h2>Frustration with gridlock</h2>
<p>Emergency actions can sometimes shortcut bureaucratic procedures and reduce the potential for litigation, compared to the normal cumbersome regulatory process. That makes them faster and more decisive. They also place responsibility squarely on the president, which increases political accountability. There’s no question of who to blame if you don’t like the border wall – or emergency climate actions. </p>
<p>Unlike legislation, an emergency action does not have to move through Congress. And compared with most federal regulations, there is less requirement for transparency or public comment, and less room for judicial oversight. </p>
<p>That can speed things up, but it also makes major mistakes more likely. The <a href="https://www.history.com/this-day-in-history/fdr-signs-executive-order-9066">internment of Japanese Americans</a> during World War II is a vivid example. </p>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/475175/original/file-20220720-18-pynspa.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Cartoon of a giant hand looming over a city." src="https://images.theconversation.com/files/475175/original/file-20220720-18-pynspa.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/475175/original/file-20220720-18-pynspa.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=760&fit=crop&dpr=1 600w, https://images.theconversation.com/files/475175/original/file-20220720-18-pynspa.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=760&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/475175/original/file-20220720-18-pynspa.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=760&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/475175/original/file-20220720-18-pynspa.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=955&fit=crop&dpr=1 754w, https://images.theconversation.com/files/475175/original/file-20220720-18-pynspa.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=955&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/475175/original/file-20220720-18-pynspa.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=955&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">‘Iron-fisted Breach,’ a cartoon by Jerry Costello reacting to President Harry Truman’s effort to nationalize the U.S. steel industry through an emergency declaration, published in the Knickerbocker News (Albany, N.Y.), April 23, 1952.</span>
<span class="attribution"><a class="source" href="https://www.loc.gov/exhibits/magna-carta-muse-and-mentor/executive-power.html">Library of Congress</a>, <a class="license" href="http://creativecommons.org/licenses/by-nd/4.0/">CC BY-ND</a></span>
</figcaption>
</figure>
<p>In addition, once an emergency is declared, civil libertarians fear that a president could use emergency powers in laws that aren’t even related to that emergency. “Even if the crisis at hand is, say, a nationwide crop blight, the president may activate the law that allows the secretary of transportation to <a href="https://www.theatlantic.com/magazine/archive/2019/01/presidential-emergency-powers/576418/">requisition any privately owned vessel at sea</a>,” wrote Elizabeth Goiten, director of the Brennan Center’s <a href="https://www.brennancenter.org/our-work/policy-solutions/liberty-national-security-election-agenda-candidates-activists-and">Liberty and National Security Program</a>.</p>
<p>Legislating is difficult and time-consuming. It requires the agreement of both houses of an increasingly polarized Congress. The filibuster rule requires 60 votes in the Senate for most legislation, and right now the Democrats don’t seem to be able to muster even the 50 votes they would need to take advantage of the “reconciliation” exception to this requirement. </p>
<p>But there are also real dangers to invoking emergency powers. Normalizing their use could make these expanded presidential powers hard to limit. </p>
<p>Congress can nullify emergency declarations by passing a resolution of disapproval, but this has proved ineffective in practice. For instance, despite bipartisan support, Congress <a href="https://www.politico.com/story/2019/09/25/senate-vote-national-emergency-border-wall-1510795">failed to muster veto-proof margins</a> for two resolutions overturning Trump’s border emergency, which the administration used to divert billions of dollars to wall construction.</p>
<p>As Justice Robert Jackson wrote in <a href="https://www.law.cornell.edu/supremecourt/text/343/579">Youngstown Sheet & Tube Company v. Sawyer</a> – a famous 1952 Supreme Court decision in which the court held that President Harry Truman did not have the constitutional authority to nationalize the U.S. steel industry during the Korean War – emergency powers “afford a ready pretext for usurpation,” and the potential for using those powers “can tend to kindle emergencies” to justify their use. </p>
<p>Unlike some observers, I still see room for making real progress through the normal regulatory process. In my view, it’s not time yet for Biden to break the glass and pull the red emergency lever.</p>
<p><em>This is an updated version of an <a href="https://theconversation.com/from-border-security-to-climate-change-national-emergency-declarations-raise-hard-questions-about-presidential-power-132501">article</a> originally published on March 9, 2020.</em></p><img src="https://counter.theconversation.com/content/187348/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Daniel Farber does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>
President Joe Biden has pledged sweeping action on climate change but struggled to deliver it. A legal scholar explains why a national emergency declaration should be a last resort.
Daniel Farber, Professor of Law, University of California, Berkeley
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/184342
2022-06-07T13:31:40Z
2022-06-07T13:31:40Z
How a public hearing is different from an investigation – and what that means for the Jan. 6 committee
<figure><img src="https://images.theconversation.com/files/467251/original/file-20220606-13060-6986u0.jpeg?ixlib=rb-1.1.0&rect=24%2C0%2C8155%2C5457&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Pro-Trump protesters approach the entrance to the U.S. Capitol on Jan. 6, 2021. </span> <span class="attribution"><a class="source" href="https://theconversation.com/asset_images/467251/edit?content_id=184342">Win McNamee/Getty Images</a></span></figcaption></figure><p>On Thursday, June 9, the <a href="https://january6th.house.gov/">House Select Committee</a> to Investigate the January 6 Attack on the United States Capitol holds the first of <a href="https://apnews.com/article/capitol-siege-donald-trump-government-and-politics-election-2020-presidential-elections-181597f4bcdb646eae9351bad301bd3a">several public hearings</a>.</p>
<p>The committee aims to lay out the <a href="https://www.theguardian.com/us-news/2022/jun/05/us-capitol-attack-televised-hearing-january-6">results of months of investigative work</a> into the involvement of President Donald Trump and his political allies in the 2021 insurrection and other attempts to overturn the results of the 2020 presidential election. </p>
<hr>
<iframe id="noa-web-audio-player" style="border: none" src="https://embed-player.newsoveraudio.com/v4?key=x84olp&id=https://theconversation.com/how-a-public-hearing-is-different-from-an-investigation-and-what-that-means-for-the-jan-6-committee-184342&bgColor=F5F5F5&color=D8352A&playColor=D8352A" width="100%" height="110px"></iframe>
<p><em>You can listen to more articles from The Conversation, narrated by Noa, <a href="https://theconversation.com/us/topics/audio-narrated-99682">here</a>.</em></p>
<hr>
<p>Committee members and staff <a href="https://www.washingtonpost.com/politics/2022/06/04/jan-6-committee-set-make-its-case-public-with-prime-time-hearing/">reviewed more than 125,000 documents and conducted more than 1,000 interviews and depositions</a> with key witnesses, including high-profile Trump allies.</p>
<p>Blockbuster hearings are fascinating and even fun; they dominate the political and cultural conversation and <a href="https://www.youtube.com/watch?v=Mp8kFqycfFM">prompt movie stars to show up in “Saturday Night Live” cold opens</a>. But what do they actually accomplish? </p>
<p><a href="https://claireleavitt.com/">I am a scholar of Congressional oversight</a> and, in 2019, spent a year working on the Democratic majority staff of the House Committee on Oversight and Reform. The question I field most often from curious students and peers is a simple one: What do these hearings do? </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/467248/original/file-20220606-20-60gofv.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A group of men and women, looking down at notes as they sit at a high table, all in a row." src="https://images.theconversation.com/files/467248/original/file-20220606-20-60gofv.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/467248/original/file-20220606-20-60gofv.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/467248/original/file-20220606-20-60gofv.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/467248/original/file-20220606-20-60gofv.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/467248/original/file-20220606-20-60gofv.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/467248/original/file-20220606-20-60gofv.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/467248/original/file-20220606-20-60gofv.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Chairman Rep. Bennie Thompson delivers remarks during a January 6th committee business meeting on Capitol Hill, March 28, 2022.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/chairman-rep-bennie-thompson-delivers-remarks-during-a-news-photo/1239592215?adppopup=true">Kent Nishimura / Los Angeles Times via Getty Images</a></span>
</figcaption>
</figure>
<h2>Culmination of the process</h2>
<p>First, a crucial distinction: Investigations are meant to acquire information, hearings are meant to present it. </p>
<p>While the committee’s public hearings will reveal new information about the insurrection to the American public, it is far less likely that the committee itself will learn something new. </p>
<p>The committee has not yet provided a list of witnesses, but former Vice President Mike Pence’s chief of staff Marc Short, conservative lawyer and former Pence adviser J. Michael Luttig and former Acting Attorney General Jeffrey Rosen <a href="https://www.washingtonpost.com/politics/2022/06/04/jan-6-committee-set-make-its-case-public-with-prime-time-hearing/">are likely to appear</a>. Recorded testimony of Ivanka Trump and Jared Kushner may be showcased. </p>
<p>High-profile hearings tend to be choreographed affairs, presenting a tightly woven narrative to the public. By now, most of the investigative work has already been done, and public hearings are best viewed as the culmination of the process. </p>
<p>This is not to say that public hearings are substantively unimportant. The upcoming hearings will outline, in detail, what happened in the weeks after the 2020 election and on the day of the attack. They will show the public “how one thing led to another, how one line of effort to overturn the election led to another and <a href="https://www.cbsnews.com/news/adam-schiff-justice-department-mark-meadows-dan-scavino-deeply-troubling-face-the-nation/">ultimately led to terrible violence</a>,” as committee member Adam Schiff, a California Democrat, put it on June 5, 2022. </p>
<p>Official documents and witness testimony presented at committee hearings are compiled and maintained by the House and Senate. Committees publish most transcripts of public hearings. This public record serves as an important baseline and cache of information for future investigators, both inside and outside of Congress, and ensures that any member of the public has easy access to the most significant evidence. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/467256/original/file-20220606-12-10i1yj.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Former President Donald Trump in a black coat, standing in front of many American flags, pointing his gloved finger at something." src="https://images.theconversation.com/files/467256/original/file-20220606-12-10i1yj.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/467256/original/file-20220606-12-10i1yj.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/467256/original/file-20220606-12-10i1yj.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/467256/original/file-20220606-12-10i1yj.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/467256/original/file-20220606-12-10i1yj.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/467256/original/file-20220606-12-10i1yj.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/467256/original/file-20220606-12-10i1yj.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Defeated President Donald Trump at the rally in the nation’s capital on Jan. 6 to protest the ratification of President-elect Joe Biden’s Electoral College victory in the 2020 election.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/president-donald-trump-greets-the-crowd-at-the-stop-the-news-photo/1294918247?adppopup=true">Tasos Katopodis/Getty Images</a></span>
</figcaption>
</figure>
<h2>‘Just the facts’ approach</h2>
<p>More broadly, public hearings establish a shared foundation of facts that can inform short- and long-term debates – around the dinner table, in the media, in Congress and among scholars – over how major events should be interpreted. </p>
<p>Hearings also serve as a kind of preemptive justification for specific legal and legislative actions that may follow the investigation. For example, if the committee does end up <a href="https://www.nytimes.com/2022/04/10/us/politics/jan-6-trump-criminal-referral.html">recommending criminal charges against Trump and his allies</a>, the hearings have already explained the legitimacy of these charges to the public. If the committee makes <a href="https://www.axios.com/2022/06/05/january-6-committee-electoral-college-reforms">legislative recommendations to reform elections</a>, the public will have a better idea of why these changes are necessary.</p>
<p>The big question is whether these hearings will convince anybody of anything. </p>
<p>Political scientist Paul Light has said that the most effective investigative hearings are the ones that focus on careful, thorough and objective fact-finding rather than “<a href="https://www.brookings.edu/research/how-the-house-should-investigate-the-trump-administration/">bright lights, perp walks and brutal questioning</a>.” </p>
<p>The reality is that hearings also provide members of Congress valuable opportunities to build their own “brands” by <a href="https://www.jstor.org/stable/1350218">staking out clear positions on controversial issues</a>, often by <a href="http://fordhamlawreview.org/wp-content/uploads/2020/11/Chafetz-November-7.pdf">using dramatic and overwrought language</a>. These “presentational styles” <a href="https://www.cambridge.org/core/books/representational-style-in-congress/AD32D8ABA29E78C048B41077D64BDD9A">affect constituents’ views about how well they are being represented</a>. </p>
<p>Members recognize this dynamic themselves: In 2019, Rep. Thomas Massie, Republican of Kentucky, referred to the House Oversight Committee on which he served as the <a href="https://www.nbcnews.com/politics/congress/new-members-areprepared-%20battle-house-oversight-committee-n963751">“theater committee,” and maintained</a> that “you could make a grandma feel bad about making cookies for her grandkids if she’s sitting in front of you.” </p>
<p>Political science research has also established that investigative hearings are very useful weapons in the partisan wars: Inquiries targeting the president and the executive branch <a href="https://doi.org/10.1017/s0022381613001448">can significantly diminish the president’s public approval</a>. </p>
<p>Thus, members on an investigative committee often find themselves facing contradictory options: They want the committee’s work to appear legitimate to the American people, but they also don’t want to pass up opportunities to burnish their own reputations and go viral on social media.</p>
<p>The Jan. 6th committee appears to have opted for a just-the-facts-ma’am approach to the public hearings. <a href="https://www.theguardian.com/us-news/2022/may/23/capitol-attack-panel-public-hearings-trump">Committee lawyers will do the bulk of the witness questioning</a>, deliberately making the witnesses’ information the focus rather than the personalities and rhetoric of the committee members. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/467250/original/file-20220606-13103-f3rhii.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A dark-haired woman carrying a water bottle and with a bag slung over her should, leaves a building and walks on snow-covered pavement.." src="https://images.theconversation.com/files/467250/original/file-20220606-13103-f3rhii.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/467250/original/file-20220606-13103-f3rhii.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/467250/original/file-20220606-13103-f3rhii.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/467250/original/file-20220606-13103-f3rhii.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/467250/original/file-20220606-13103-f3rhii.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/467250/original/file-20220606-13103-f3rhii.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/467250/original/file-20220606-13103-f3rhii.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Stephanie Grisham, former press secretary for former President Donald Trump, departs on Jan. 5, 2022, after participating in a deposition meeting on Capitol Hill with the House select committee investigating the January 6th U.S. Capitol attack.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/stephanie-grisham-former-press-secretary-for-former-news-photo/1362996682?adppopup=true">Anna Moneymaker/Getty Images</a></span>
</figcaption>
</figure>
<h2>Aiming for credibility</h2>
<p>Committee members’ personalities will likely not play as big a role here as they ordinarily would. That’s especially important to the current panel’s credibility, considering its origins. </p>
<p>In May 2021, the Senate killed legislation to establish an independent commission to investigate the attacks that <a href="https://apnews.com/article/mitch-mcconnell-riots-terrorist-attacks-donald-trump-capitol-siege-ac4cf46ad3e0617a045eb926d21945eb">would have been modeled on the 9/11 Commission</a>. The House instead established a select committee, with the support of only two Republicans. </p>
<p>Select committees are <a href="https://history.house.gov/Education/Fact-Sheets/Committees-Fact-Sheet2/#:%7E:text=Select%20committees%20are%20created%20by,studies%20rather%20than%20consider%20measures.">established by Congress to investigate a specific issue</a> and exist for a finite time period. Both Democrats and Republicans ordinarily serve on select committees, each appointed by their respective party leaders.</p>
<p>However, in an unprecedented move, Democratic Speaker Nancy Pelosi vetoed two of Republican leader Kevin McCarthy’s picks, Trump allies Jim Jordan of Ohio and Jim Banks of Indiana, arguing that their participation would jeopardize the “<a href="https://www.cnn.com/2021/07/21/politics/nancy-pelosi-rejects-republicans-from-committee/index.html">integrity of the investigation</a>.” McCarthy responded by refusing to appoint any Republicans to the panel. </p>
<p>Two Republicans, Wyoming Rep. Liz Cheney and Illinois Rep. Adam Kinzinger, agreed to serve as Pelosi appointees on the nine-member committee. Pelosi’s decision <a href="https://www.axios.com/2022/06/03/trump-january-6-hearings-republicans">delegitimized the committee’s work in the eyes of Republican stalwarts</a>. But the Democratic speaker’s appointment of these two Republicans also made it possible for all members of the committee to work together collaboratively. Pelosi chose actual bipartisanship against the mere appearance of it. </p>
<p>And she may not even have had to sacrifice appearance: A staunch conservative like Liz Cheney and an outspoken progressive like Adam Schiff working alongside one another, I believe, presents a compelling picture of bipartisan cooperation to the larger swath of the public that doesn’t pay close attention to politics. </p>
<p>It is no accident that Cheney was made vice-chair of the committee and regularly appears alongside Democratic chairman Bennie Thompson of Mississippi at press conferences and committee meetings. There is <a href="https://www.politico.com/news/2022/01/02/house-jan-6-committee-popular-republicans-526092">broad public support for the Jan. 6th investigation</a> even as <a href="https://fivethirtyeight.com/features/americans-are-moving-on-from-jan-6-even-if-congress-hasnt/">public attention to the attacks themselves has begun to wane</a>. </p>
<p>Pelosi may have gambled that having prominent and outspoken Trump allies on the committee would do more harm than good, since there is <a href="https://doi.org/10.1111/j.1540-5907.2011.00522.x">some evidence to suggest</a> that negative partisan attacks can diminish overall political engagement among the public. Public reception of the hearings will demonstrate whether Pelosi’s gambit paid off.</p><img src="https://counter.theconversation.com/content/184342/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Claire Leavitt has received funding from the Project on Government Oversight (POGO) and the Levin Center for Oversight and Democracy. </span></em></p>
On the eve of public hearings held by Congress’ January 6 investigative committee, a former oversight staffer for the House of Representatives explains what such hearings aim to accomplish.
Claire Leavitt, Visiting Assistant Professor of Political Science and Policy Studies, Grinnell College
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/170117
2021-10-19T12:54:58Z
2021-10-19T12:54:58Z
Critical role lies ahead for South Africa’s new chief justice in light of predecessor’s mixed legacy
<figure><img src="https://images.theconversation.com/files/426995/original/file-20211018-57123-676l1c.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Former South African Chief Justice Mogoeng Mogoeng.</span> <span class="attribution"><span class="source">GovernmentZA/Flickr</span></span></figcaption></figure><p>Most African constitutions of the past 30 years, led by an independent Namibia <a href="https://www.sahistory.org.za/dated-event/namibia-gains-independence">in 1990 </a> and strongly endorsed by South Africa <a href="https://www.tandfonline.com/doi/abs/10.1080/04597239308460952?journalCode=tssu20">in 1994</a>, have authorised the apex court to determine the limits of “government under law”. This is naturally consistent with both the <a href="https://worldjusticeproject.org/about-us/overview/what-rule-law">rule of law</a> and the <a href="http://www.saflii.org/za/journals/DEREBUS/2014/118.pdf">separation of powers doctrine</a>.</p>
<p>However, the inevitable tensions created with the legislature and executive have to be wisely navigated. And outbursts of politicians’ polemics, mostly unjustified, have been common.</p>
<p>This raises the question: is this push back beginning to have an effect?</p>
<p>The extent of the fightback by the executive is most commonly seen in attempts to influence judicial appointments. And there is none more so than appointments to the office of Chief Justice. This is where there is appropriately some measure of discretion given to the head of state.</p>
<p>South Africa finds itself at a critical juncture. <a href="https://www.concourt.org.za/index.php/judges/current-judges/13-current-judges/71-justice-mogoeng-mogoeng">Chief Justice Mogoeng Mogoeng</a>’s 10-year term has just ended. President Cyril Ramaphosa has belatedly initiated the <a href="http://www.thepresidency.gov.za/press-statements/president-ramaphosa-invites-public-participation-selection-chief-justice">search for his successor</a>. </p>
<p>Ultimately, the decision is for the President to make. As a <a href="http://www.thepresidency.gov.za/profiles/president-cyril-ramaphosa%3A-profile">qualified lawyer</a>, Ramaphosa will know how important the appointment is, particularly as the courts face an unprecedented level of animosity from those who seek to rule by abuse of power and corrupt practice. And because the criminal justice system is tottering due to ineffective policing, a hollowed-out prosecuting authority, and a climate of impunity in many quarters. </p>
<h2>Highs and lows</h2>
<p>The tenure of Chief Justice Mogoeng was good in parts. </p>
<p>His appointment initially <a href="https://www.bbc.com/news/world-africa-14839406">generated great controversy</a>, given his relative inexperience as a judge and leader, and because President Jacob Zuma selected him. His <a href="https://www.youtube.com/watch?v=R1nu9VK2FHY">interview by the Judicial Service Commission</a> made matters worse, confirming fears that he would not be up to the task. </p>
<p>The sceptics were initially proved wrong. The Constitutional Court justices seemed to close ranks in support of him. The jurisprudence emanating from what was then a strong bench appeared to be holding true to the patterns established by the courts led by his predecessors, Chief Justices <a href="https://www.concourt.org.za/index.php/judges/former-judges/11-former-judges/60-justice-arthur-chaskalson-1931-2012">Arthur Chaskalson</a>,<a href="https://www.concourt.org.za/index.php/judges/former-judges/11-former-judges/62-former-chief-justice-pius-langa-1938-2013"> Pius Langa</a> and <a href="https://www.concourt.org.za/index.php/judges/former-judges/11-former-judges/66-chief-justice-sandile-ngcobo">Sandile Ngcobo</a>.</p>
<p>Some disquiet was, however, expressed about the wayward behaviour of the Judicial Service Commission in 2011-2014, when the interviews for judicial appointments became a forum for party politics. There was also disquiet about the imperious managerial style in which Mogoeng ran the Office of the Chief Justice, and his enthusiastic embrace of the trappings of office.</p>
<p>However, the unanimous decision in the <a href="http://www.saflii.org/za/cases/ZACC/2016/11.html">Nkandla case</a> in early 2016, holding President Zuma to account for unauthorised expenditure on his private homestead, tended justifiably to mask many doubts that may have been in place. </p>
<p>It was certainly the jurisprudential high point of Chief Justice Mogoeng’s tenure. This was especially important given the rampant pace at which <a href="https://www.litnet.co.za/reader-impression-lawfare-judging-politics-in-south-africa-by-michelle-le-roux-and-dennis-davis/">‘lawfare’</a> – the frequent resort to the courts to settle political disputes – developed in the last few years of Zuma’s presidency. This placed great pressure on the judiciary. </p>
<p>The Chief Justice’s <a href="https://theconversation.com/are-judges-in-south-africa-under-threat-or-do-they-complain-too-much-45459">2015 request</a> to meet with the President, senior judges and ministers to address the executive’s (and the governing ANC leaders’) public attacks on the courts was a timely intervention.</p>
<p>Regrettably, the last few years of Mogoeng’s tenure have been marked by much less positive features. These have influenced attitudes about his whole term. The following aspects detract from his performance:</p>
<ul>
<li><p>His ill-tempered dissent in the Economic Freedom Fighters’ case at the end of 2017, when he publicly accused the overwhelming majority of his colleagues of embarking on <a href="http://www.saflii.org/za/cases/ZACC/2017/47.pdf">“a textbook case of judicial overreach”</a>;</p></li>
<li><p>His increasing <a href="https://mg.co.za/news/2018-11-16-00-mogoeng-absent-for-more-than-half-of-concourt-judgments/">absence from the Bench</a> on grounds of having to attend to his many other functions as Chief Justice;</p></li>
<li><p>His failure to move swiftly to fill vacancies on the Constitutional Court. The court now has five vacancies out of eleven;</p></li>
<li><p>His serious failure of leadership as chair of the Judicial Service Commission. He failed to maintain an even-handed level of respect and decorum among its members, leading to an improper level of questioning during the <a href="https://www.news24.com/citypress/news/constitutional-court-interviews-to-be-rerun-after-successful-casac-challenge-20210812">appointments-interview process</a></p></li>
<li><p>The appalling inability of the Judicial Service Commission to ensure a firm commitment to judicial accountability. This is exemplified by serial evasiveness by those allegedly guilty of misconduct; and</p></li>
<li><p>His <a href="https://www.heraldlive.co.za/news/politics/2021-03-14-chief-justice-mogoeng-to-appeal-against-jcc-ruling-that-he-should-apologise-for-pro-israel-comments/">pronouncements</a> on the Israel-Palestine conflict and on the <a href="https://www.enca.com/news/chief-justice-mogoeng-prays-against-vaccines-devil">necessity of COVID-19 vaccinations</a>. He attempted to evade responsibility for both by pleading religious freedom. </p></li>
</ul>
<p>Few would deny his oft-stated right to subscribe to a faith. Nevertheless he seemed oblivious to the devastating public impact of his actions, which cannot be divorced from the high office which he holds. </p>
<p>Indeed, these incidents would cause many to wonder at the rationality of his legal judgments.</p>
<p>Justice Mogoeng’s legacy will ultimately be assessed with the benefit of the passage of time. For now, his successor faces great challenges to reestablish respect for the office of Chief Justice. </p>
<h2>Choosing a new chief justice</h2>
<p>The <a href="https://www.justice.gov.za/legislation/constitution/saconstitution-web-eng.pdf">constitution</a> (section 174(3)) authorises the president to appoint a Chief Justice, after consulting the judicial commission and the leaders of all political parties in the National Assembly. This means he must consult in good faith, but is not bound by the advice given.</p>
<p>Ramaphosa <a href="http://www.thepresidency.gov.za/press-statements/inaugural-meeting-panel-appointment-chief-justice">set up a panel</a>, chaired by a former Judge, to facilitate public participation in his final decision. The panel is mandated to produce a shortlist of between three and five candidates. The president will choose as many as he sees fit for interview by the commission (probably not more than two).</p>
<p>While this is laudable, in terms of openness and participation, the process yielded a <a href="http://www.thepresidency.gov.za/press-statements/panel-names-8-nominees-position-chief-justice">long list of eight</a>, who formally qualified with the basic criteria for judicial appointment. Four are patently not qualified to be Chief Justice, and owe their nominations to broader political posturing. The remaining four would have been on the short list of almost every knowledgeable observer. </p>
<p>The panel’s terms of reference specify that it will assess the candidates against the following criteria: </p>
<ul>
<li><p>fitness and propriety to hold the office of Chief Justice; </p></li>
<li><p>age and citizenship; </p></li>
<li><p>suitability for appointment, including unblemished integrity, moral leadership, defence of the constitution and its transformative character, independence of spirit, strong work ethic, and so on;</p></li>
<li><p>judicial competence; and </p></li>
<li><p>sensitivity and objectivity towards vulnerable groups. </p></li>
</ul>
<p>The formulation of these criteria must be applauded, particularly in the light of the systemic failure of the Judicial Service Commission clearly to outline the criteria it uses for judicial appointment.</p>
<h2>Looking to the future</h2>
<p>A strong, courageous and dedicated Chief Justice will provide the leadership desperately needed to turn the administration of justice around. The appointment of anyone who does not have those qualities in abundance is likely further to erode the rule of law as a fundamental cornerstone of South African democracy. </p>
<p>Given the regional balance of power, the negative impact on the southern African community will be palpable.</p><img src="https://counter.theconversation.com/content/170117/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Hugh Corder has previously received funding from the National Research Foundation.. He serves on the executive committee of the Council for the Advancement of the South African Constitution and on the board of Freedom under Law. </span></em></p>
A strong, courageous and dedicated Chief Justice will provide the leadership desperately needed to turn the administration of justice around.
Hugh Corder, Professor Emeritus of Public Law, University of Cape Town
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/169633
2021-10-13T05:58:47Z
2021-10-13T05:58:47Z
Explainer: why did the High Court rule against Clive Palmer and what does the judgment mean?
<p>The High Court has unanimously <a href="https://cdn.hcourt.gov.au/assets/publications/judgment-summaries/2021/hca-30-2021-10-13.pdf">rejected</a> claims by mining magnate Clive Palmer and his company Mineralogy that legislation passed by the Western Australian parliament intended to prevent him from claiming billions in damages was unconstitutional.</p>
<p>The High Court’s decisions are a resounding victory for the Western Australian government. In the short term, the state has been spared a damages claim that may have amounted to nearly $30 billion – almost equivalent to its annual budget. </p>
<p>WA Premier Mark McGowan called the judgment a “monumental victory” for West Australians, saying it confirmed the parliament did “the right thing” by standing up to Palmer.</p>
<p>So, what did the court find and what will it mean for the state moving forward?</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1448076503380545545"}"></div></p>
<h2>What the dispute is about</h2>
<p>The dispute between Palmer and the WA government began in 2012 over an iron ore project in the Pilbara. Palmer argued his development proposals for the Balmoral South iron ore project were unlawfully refused by the previous state government. </p>
<p>These claims were pursued through arbitration – a dispute resolution process that happens outside the courts. </p>
<p>In an extraordinary step last year, the WA parliament <a href="https://7news.com.au/news/wa/palmer-v-wa-saga-to-drag-on-as-laws-pass-c-1238792">passed</a> the so-called Mineralogy Act, which sought to protect the state from having to pay any damages to Palmer.</p>
<p>Palmer challenged the Mineralogy Act on a host of grounds, all of which were rejected by the High Court.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/how-clive-palmer-could-challenge-the-act-designed-to-stop-him-getting-30-billion-145098">How Clive Palmer could challenge the act designed to stop him getting $30 billion</a>
</strong>
</em>
</p>
<hr>
<h2>The state can amend agreements with mining companies</h2>
<p>As is common in the mining industry, Mineralogy holds its mining project rights under a “state agreement” with WA. This is an agreement that sets out a framework for mining approvals and payments and is incorporated in an <a href="https://www.legislation.wa.gov.au/legislation/prod/filestore.nsf/FileURL/mrdoc_43096.htm/$FILE/Iron%20Ore%20Processing%20(Mineralogy%20Pty%20Ltd)%20Agreement%20Act%202002%20-%20%5B00-c0-01%5D.html?OpenElement">act of parliament</a>. </p>
<p>Palmer claimed the WA parliament did not follow the proper amendment process outlined in the state agreement when it unilaterally passed the Mineralogy Act. </p>
<p>However, the High Court said the process in the agreement did not apply to parliament. As such, parliament could unilaterally amend the state agreement. </p>
<p>This could have implications for other state agreements with mining companies, as the state could likely change the terms whenever it wants to.</p>
<h2>Denying arbitration awards not unconstitutional</h2>
<p>Palmer and Mineralogy were granted <a href="https://theconversation.com/how-clive-palmer-could-challenge-the-act-designed-to-stop-him-getting-30-billion-145098">two favourable arbitration decisions</a> that were key to their damages claims. He had registered the two awards in the Queensland Supreme Court.</p>
<p>However, the Mineralogy Act deems these arbitration awards to be of no effect. </p>
<p>Palmer argued this meant the Mineralogy Act breached section 118 of the Australian Constitution, which requires full recognition of the laws of other states (in this case, Queensland). </p>
<p>The High Court rejected this argument because all states’ commercial arbitration laws permit a court to refuse to recognise an award if it is invalid in the state where it was made, in this case Western Australia.</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1448105495634579464"}"></div></p>
<h2>Not a breach separation of powers</h2>
<p>The separation of powers is a key constitutional principle that says powers should be separated between the three branches of government – the legislature, executive and the judiciary.</p>
<p>Palmer argued the Mineralogy Act interfered with the integrity of the state courts and was an exercise of judicial power by the Western Australian parliament.</p>
<p>The High Court found the effect of the Mineralogy Act might be to change existing legal rights, but this did not amount to a breach of the separation of powers. </p>
<p>The law may have been extreme, but the court ruled it did not interfere with the integrity of the courts, nor was it an exercise of judicial power by the parliament.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/meet-mark-mcgowan-the-wa-leader-with-a-staggering-88-personal-approval-rating-156293">Meet Mark McGowan: the WA leader with a staggering 88% personal approval rating</a>
</strong>
</em>
</p>
<hr>
<h2>…or a breach of rule of law</h2>
<p>Palmer also argued the Mineralogy Act breached the rule of law by preventing him and his company from pursuing their damages claim.</p>
<p>Although the Australian Constitution does not expressly mention the rule of law, the High Court has said on more than one occasion that it is an “assumption” of the Constitution. </p>
<p>However, the High Court has also said the courts should be wary of giving content to the rule of law that cannot be found in the Constitution itself. In other words, Palmer needed to point to specific provisions of the Constitution that supported his claim the rule of law had been breached. This he was unable to do.</p>
<p>The Mineralogy Act may have changed legal rights, but the court said it did not amount to a breach of the rule of law under the Constitution.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/after-clive-palmers-60-million-campaign-limits-on-political-advertising-are-more-important-than-ever-117099">After Clive Palmer's $60 million campaign, limits on political advertising are more important than ever</a>
</strong>
</em>
</p>
<hr>
<h2>What are the potential implications of the ruling?</h2>
<p>Mineralogy and Palmer have a number of other related court cases on foot, including a <a href="https://www.comcourts.gov.au/file/Federal/P/QUD257/2020/actions">consumer law claim</a> against Western Australia. </p>
<p>While the High Court did not consider the validity of provisions under the new law directly related to these claims, its ruling may still have an impact. By finding in favour of the state for some of the Mineralogy Act provisions, it may undermine the basis for Palmer’s other claims.</p>
<p>From a political standpoint, the outcome is also likely to bolster the popularity of the McGowan government. </p>
<p>Palmer has also claimed the Mineralogy Act would deter companies from investing in WA, but whether the new law – or the High Court judgement – undermines investor confidence in the state remains to be seen.</p><img src="https://counter.theconversation.com/content/169633/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Murray Wesson has previously received funding from the International Mining for Development Centre (IM4DC).</span></em></p><p class="fine-print"><em><span>Ian Murray has previously received funding from Rio Tinto, BHP Billiton and the Minerals Council of Australia for research relating to Indigenous benefits management structures.</span></em></p>
The court said WA’s new law to prevent Palmer from collecting damages against the state was not unconstitutional. Here’s why.
Murray Wesson, Senior Lecturer in Law, The University of Western Australia
Ian Murray, Associate Professor, The University of Western Australia
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/166682
2021-08-25T15:10:58Z
2021-08-25T15:10:58Z
South Africa’s new Speaker of parliament has sparked controversy – for good reason
<figure><img src="https://images.theconversation.com/files/417570/original/file-20210824-19-1xmi0kz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">South Africa's controversial new Speaker of Parliament, Nosiviwe Mapisa-Nqakula.</span> <span class="attribution"><span class="source">Ruvan Boshoff/Xinhua via Getty Images</span></span></figcaption></figure><p>On Thursday 19 August the members of South Africa’s National Assembly convened physically <a href="https://www.parliament.gov.za/press-releases/national-assembly-elects-ms-nosiviwe-mapisa-nqakula-speaker">for the first time in a while</a>. They met in several locations in parliament to achieve sufficient distancing in the pandemic. And there was only one item on the order paper: the election of a Speaker. </p>
<p>This was duly done and the former minister of defence, Nosiviwe Mapisa-Nqakula, was <a href="https://www.dailymaverick.co.za/article/2021-08-19-new-national-assembly-speaker-nosiviwe-mapisa-nqakula-extends-hand-of-cooperation-to-all/">elected to the office</a>. </p>
<p>The Speaker in South Africa presides over proceedings in the National Assembly. They also are the titular head of parliament as a whole, including the <a href="https://www.parliament.gov.za/national-council-provinces">National Council of Provinces</a>. The Speaker is elected by a majority of members of the assembly, and may be removed in the same way. </p>
<p>The Speaker is responsible for providing political leadership and strategic direction to the National Assembly. And they should do so in a nonpartisan manner. </p>
<p>Why was this an important temperature check for the state of health of South Africa’s constitutional democracy?</p>
<p>This question must be answered against the background of the ingrained identity politics which characterise the country’s long history of racial oppression and its <a href="https://origins.osu.edu/sites/origins.osu.edu/files/origins-archive/Volume2Issue2Article3.pdf">relatively recent reversal</a>. It would, therefore, have been unrealistic in the first years of democracy to expect conscientious adherence to the unwritten rules and conventional spirit that ideally should prevail in parliament. But the expectation was that this would gradually be achieved. </p>
<p>Indeed, those who served in the position immediately after the country’s first democratic election <a href="https://www.sahistory.org.za/article/south-african-general-elections-1994">in 1994</a> did so with distinction. However, over most of the past 15 years the Speaker has been both weak and partisan, and was responsible for allowing the executive, particularly that of former president Jacob Zuma, to conduct themselves in ways that have brought the government into disrepute.</p>
<p>The election of the new Speaker was thus a significant moment for the governing African National Congress (ANC) to show that it was moving away from its <a href="https://theconversation.com/why-the-anc-itself-is-the-chief-impediment-to-ramaphosas-agenda-108781">“wasted years”</a> under Zuma.</p>
<p>It failed the test. Mapisa-Nqakula’s elevation to this significant constitutional office reflects extremely poorly on the party leadership. It contrasts starkly with President Cyril Ramaphosa’s oft-stated commitment to uncorrupt governance and to the <a href="https://www.gov.za/speeches/president-cyril-ramaphosa-2018-state-nation-address-16-feb-2018-0000">values of the constitution</a>.</p>
<h2>A brief history of the role</h2>
<p>The title given to the highest authority in parliament originated in the English parliament in the late 1300s. It then described the person who “spoke” on behalf of the monarch. After the <a href="https://eh.net/encyclopedia/the-glorious-revolution-of-1688/">“Glorious Revolution” of 1688</a>, the Speaker became the presiding officer in the House of Commons. </p>
<p>South Africa inherited that office and title as a former British colony, together with almost all other members of the <a href="https://thecommonwealth.org/">Commonwealth</a>. </p>
<p>Any legislature needs someone to chair its proceedings, to manage and administer the support services, to oversee the exercise of discipline among its members, and to represent it in discussions with the executive and judicial arms of government.</p>
<p>Various approaches are taken towards the impartiality and independence of the office of Speaker. </p>
<p>In the UK, an MP is elected as Speaker immediately <a href="https://www.parliament.uk/about/faqs/house-of-commons-faqs/speakers-election/">after a general election</a>. The person is generally a member of the governing party, but does not have to be. On election the MP ceases to be a member of the party caucus. </p>
<p>In the US the <a href="https://history.house.gov/People/Office/Speakers-Intro/">Speaker of the House of Representatives</a> is drawn from the senior ranks of the majority party in the lower house of Congress. They play a partisan role, balanced with a degree of fair play towards all members of the house. </p>
<p>Most other national constitutions position their equivalent of the Speaker between these two approaches.</p>
<h2>What the job entails</h2>
<p>As the parliamentary <a href="https://www.parliament.gov.za/na-presiding-officers">website </a> provides, the Speaker’s responsibilities include:</p>
<ul>
<li><p>preserving parliamentary integrity and the decorum of the house, </p></li>
<li><p>ensuring the smooth running of legislative business and the functioning of committees, </p></li>
<li><p>presiding impartially over sittings and maintaining order. </p></li>
</ul>
<p>The Speaker represents parliament as a whole. Their responsibilities include ensuring sufficient budget for its activities, monitoring expenditure and the provision of support for all MPs, and initiating or responding to any litigation in the courts. </p>
<p>In terms of South Africa’s <a href="https://www.justice.gov.za/legislation/constitution/saconstitution-web-eng.pdf">constitution</a>, the Speaker heads the legislative branch of government, and should act as its champion at all times, both nationally and internationally. This is particularly the case in its relationship with the executive.</p>
<p>Effective fulfilment of all these functions requires a highly efficient, dignified, respected and wise MP. The experience of the past 27 years has been patchy.</p>
<h2>Rollcall of speakers</h2>
<p>An exemplary start was made by <a href="https://www.sahistory.org.za/people/dr-frene-noshir-ginwala">Frene Ginwala</a>, who served for the first decade of democratic government. She ruled with a firm yet fair hand, and presided over many initiatives to transform parliament from its lapdog role under apartheid to the vision set in the constitution. The ideal is that parliament represents the electorate and also plays an effective role in regulating the exercise of executive power. </p>
<p><a href="https://www.gov.za/speech-max-sisulu-mp-speaker-national-assembly-ceremonial-court-session-honour-late-former-chief">Max Sisulu</a> (2009-2014) and latterly <a href="https://www.pa.org.za/person/thandi-modise/">Thandi Modise</a> (2019-2021) broadly followed the Ginwala approach. </p>
<p>Regrettably, the double tenure (2004-2008 and 2014-2019) of <a href="https://www.gov.za/about-government/contact-directory/baleka-mbete-honourable">Baleka Mbete</a> fell far short of the expectations of the Speaker’s office. On her watch, particularly in her second term, she was frequently accused of treating opposition MPs less favourably than government MPs. She was also accused of <a href="https://issafrica.org/iss-today/can-sas-parliament-redeem-itself-as-an-oversight-mechanism">blocking parliamentary investigations</a> into actions of the ruling ANC, in particular Zuma. </p>
<p>Indeed, in May this year, she testified at the Zondo Commission into state capture that she had <a href="https://www.businesslive.co.za/bd/national/2021-05-18-i-ignored-authorless-arms-deal-report-and-would-do-it-again-says-baleka-mbete/">ignored an anonymous whistle-blower’s report alleging corruption</a> in 2007. And, she said, if called upon to decide how to respond to any such report today, she would do so again.</p>
<h2>Flawed system</h2>
<p>The problems surrounding the role of the Speaker in South Africa are rooted in the autocratic racism of our past. The ability to transcend it is eroded by <a href="https://theconversation.com/south-africa-is-ripe-for-electoral-reform-why-its-time-might-have-come-157149">the electoral system </a> and by the organising principle of the ANC. </p>
<p>The <a href="https://www.elections.org.za/content/Elections/Election-types/">party-list proportional representation model</a> means that only loyal party members will be elected to any legislature in the country. This leads to the tendency to put party interests before those of the country. </p>
<p>This is substantially compounded by the <a href="https://www.researchgate.net/publication/248962959_The_Lack_of_Internal_Party_Democracy_in_the_African_National_Congress_A_Threat_to_the_Consolidation_of_Democracy_in_South_Africa">“democratic centralist”</a> basis on which the ANC is modelled. This approach maintains that a degree of disagreement and debate is tolerated within closed party meetings, but that, once a decision or policy is adopted by the majority, every party member has to adhere uncritically to that line. </p>
<p>The consequences for any Speaker are self-evident.</p>
<p>By definition, someone who is appointed as Speaker will be a senior member of the ruling party, steeped in its history, culture and traditions. This is unacceptably reinforced when the Speaker remains an office bearer of the party, as was seen with Mbete, who was national shairperson of the ANC while serving as Speaker. </p>
<p>Mapisa-Nqakula was elected to serve as Speaker after being dropped from the cabinet following an utterly undistinguished period of 15 years <a href="https://www.news24.com/news24/southafrica/news/from-fired-minister-to-speaker-of-parliament-mapisa-nqakula-is-ancs-candidate-20210811">as a cabinet minister in three portfolios</a>.
She is herself the subject of investigation by a committee of Parliament for <a href="https://www.news24.com/news24/southafrica/investigations/exclusive-jets-hotels-and-wigs-mps-investigate-graft-allegations-against-nosiviwe-mapisa-nqakula-20210819">alleged unethical conduct</a>. And she’s been under a cloud for unaccountable and suspect misuse of her authority a number of times. </p>
<p>Parliament’s <a href="https://www.news24.com/news24/southafrica/news/opposition-parties-distance-themselves-from-thandi-modises-apology-to-zondo-commission-20210602">failure</a> to hold the Zuma administration to account has been graphically and repeatedly illustrated in evidence to the <a href="https://www.statecapture.org.za/">Zondo commission</a>. Given this shockingly delinquent failure by parliament to fulfil its constitutional obligations, the prospects are at best bleak of the new Speaker tolerating, let alone initiating, any more active and effective scrutiny in the next few years. </p>
<p>The temperature check reveals an ailing system of public governance, unable to shift from the burdens of the past.</p><img src="https://counter.theconversation.com/content/166682/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Hugh Corder is Professor Emeritus of Public Law at UCT. He has received funding from the National Research Foundation of South Africa. He is a director of Freedom under Law and a member of the Council for the Advancement of the South African Constitution. </span></em></p>
The ANC’s choice of parliamentary Speaker reflects poorly on the party leadership and contrasts starkly with President Cyril Ramaphosa’s commitment to uncorrupt governance.
Hugh Corder, Professor of Public Law, University of Cape Town
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/165544
2021-08-11T14:59:53Z
2021-08-11T14:59:53Z
Angola’s Constitution is under review: but a great deal has been left undone
<figure><img src="https://images.theconversation.com/files/414805/original/file-20210805-17-dh6qrb.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">President of Angola Joao Lourenco in Berlin, Germany in 2018. The powers of the president remain intact.</span> <span class="attribution"><span class="source">Photo by Abdulhamid Hosbas/Anadolu Agency/Getty Images</span></span></figcaption></figure><p>Angola’s parliament recently <a href="https://www.angop.ao/en/noticias/politica/parlamento-aprova-primeira-revisao-constitucional-do-pais/">approved a bill</a> to review the country’s constitution 11 years after its promulgation. </p>
<p>President João Lourenço used his constitutional prerogative to initiate a review process by sending a proposal for revision to parliament in early March. His justification was that the supreme law of the land needed to be adapted to the current challenges facing the country. </p>
<p>These <a href="https://governo.gov.ao/fotos/frontend_1/gov_documentos/proposta_de_lei_de_revisa_o_constitucional_48924311860411821d4821.pdf">included</a> the COVID-19 pandemic, the need to clarify some issues in the Constitution and the need to prevent some of the excesses from the presidency of José Eduardo dos Santos, his predecessor.</p>
<p>The revision introduces notable changes to the constitution. These include the clarification of the institutional relationship between parliament and the executive branch when it comes to political oversight. The 2010 Constitution was not clear on this. </p>
<p>Other key change is the institutionalisation of the independence of the Angolan Central Bank. The amendments would turn the bank into an administratively independent entity with regulatory powers separated from the president and the administration. It also includes involving parliament in the process of appointing the governor. </p>
<p>Under the current constitution, the president appoints (and can dismiss) the governor. The Central Bank is also administratively part of government and receives orders from the president in discharging its responsibilities.</p>
<p>Another change involves extending voting rights to Angolans abroad. </p>
<p>The changes also seek to resolve an ongoing bone of contention – how local government officials are selected. At present, the party that wins the general elections gets to appoint all the senior executive officials at national and sub-national levels (provincial, municipal and commune/district). </p>
<p>There have been efforts to change this in recent years. But the process has been delayed mainly by conflicting views between the governing People’s Movement for the Liberation of Angola (MPLA), and opposition parties. The MPLA views the process – referred to locally as gradualism – in geographical terms. It envisages that local elections should start in selected municipalities and spread gradually to all municipalities. Opposition parties oppose this because it means that the ruling party will continue to appoint officials at all levels of governance for many years to come. </p>
<p>They argue that local elections should be implemented in all the 164 municipalities simultaneously. But that the transfer of responsibilities from the central government to local entities would take place as they get ready to take them up.</p>
<p>By and large, I think the changes being proposed are good. But I am of the view that the Angolan political elite lost an extraordinary opportunity to improve significantly the country’s constitution. The Constitutional Revision Bill fails to address crucial and divisive political issues effectively. </p>
<p>The most contentious of these is the extensive powers of the president, the method for his election as well as the fact that it leaves intact the way that local government is <a href="https://theconversation.com/why-covid-19-cant-be-blamed-for-angolas-failure-to-have-local-governance-144685">formed</a>. </p>
<h2>The extensive powers of the president</h2>
<p>Contemporary constitutionalism emphasises the doctrine of the separation of powers. This means that the three arms of the state (executive, legislative, and judicial) are kept separate, while having certain powers to check and balance the powers of the other branches so that no arm of the state dominates. </p>
<p>Angola’s current political arrangement – as prescribed by the constitution – doesn’t match up to this. A raft of these flaws aren’t addressed in the amendments.</p>
<p>The Angolan constitution ascribes <a href="https://governo.gov.ao/fotos/frontend_1/editor2/constituicao_da_republica_de_angola.pdf">a wide range of executive powers</a> to the president. It gives the position preeminence over the legislative and judicial arms of the state.</p>
<p>For instance, as the head of state, the president is considered to be the custodian of all executive power. Technically, there is no government but the president, who holds all executive powers. Ministers serve at his pleasure, assisting him in fulfilling his executive duties. </p>
<p>He can pass laws by decree, which means that he can bypass parliament in making them.</p>
<p>Additionally, the constitutional revision bill reaffirms <a href="https://jurisprudencia.tribunalconstitucional.ao/wp-content/uploads/2019/04/319.pdf">a 2013 ruling</a> by the Constitutional Court, which effectively prevents parliament from summoning ministers or other members of the administration without the president’s consent.</p>
<p>This results in a system with minimal or meaningless executive accountability to parliament.</p>
<p>The president has the prerogative to appoint the presiding and the deputy presiding judges of all the highest courts. He also <a href="https://governo.gov.ao/fotos/frontend_1/editor2/constituicao_da_republica_de_angola.pdf">appoints (and can dismiss)</a> the Attorney General, the deputy Attorney General, the prosecutors of the Supreme Military Court, and members of the highest body of the judiciary. </p>
<p>Despite these extensive powers, Angolans don’t elect the president <a href="https://theconversation.com/angolas-peculiar-electoral-system-needs-reforms-how-it-could-be-done-163528">directly</a>. This function is ultimately limited to the vagaries of party politics. </p>
<p>This is just one major flaw in Angola’s electoral system which, as currently constructed, undermines voters’ ability to elect political representatives effectively.</p>
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Read more:
<a href="https://theconversation.com/angolas-peculiar-electoral-system-needs-reforms-how-it-could-be-done-163528">Angola's peculiar electoral system needs reforms. How it could be done</a>
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<p>Firstly, it fuses executive and legislative elections, preventing voters from splitting their votes for the presidency and parliament. Secondly, it shields the top executive officer – the president – from the direct judgement of the voters. </p>
<p>Lastly, it bars independent candidates from standing for political office unless they are included in a party list that has been cleared to run in the elections.</p>
<p>Efforts to fix at least one element of what’s wrong – the ability for Angolans to vote for their representatives at all levels of government – have run into the ground. Opposition parties, <a href="https://www.africanews.com/2017/09/07/live-angola-elects-mps-and-president-as-dos-santos-bows-out//">which hold roughly 38% (70 out of 220)</a> seats in parliament, want to see elections held in all 164 municipalities simultaneously. They also want power and responsibilities to be progressively delegated from the central government. This would include taxation, policing and infrastructure spending.</p>
<p>The government, however, believes that not every municipality is ready to take up these and other responsibilities.</p>
<p>The repeal under the bill on this issue doesn’t solve the imbroglio.</p>
<h2>A shrewd political manoeuvre</h2>
<p>The president <a href="https://www.cmjornal.pt/mundo/africa/detalhe/presidente-angolano-nega-ter-poderes-constitucionais-excessivos">has rejected previous calls</a> for constitutional revision from opposition parties and civil society. His announcement of a review, in early March, caught the country by surprise.</p>
<p>From this perspective, the president’s decision can be seen as a shrewd political manoeuvre by getting changes within timelines that best suit him.</p>
<p>The first factor here is that the ruling MPLA currently has the necessary majority to approve any constitutional review alone. But that might not be the case after the general elections scheduled for 2022 when most expect the ruling party to lose its qualified majority, thereby losing its ability to approve the constitution alone. </p>
<p>The second factor is that Angolans will have to wait for at least five years – a condition set out under the constitution – until any further reviews of the constitution can be initiated. </p>
<p>This means even further delays in Angolans being able to craft a constitution capable of uniting them around a common project of society.</p><img src="https://counter.theconversation.com/content/165544/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Albano Agostinho Troco receives funding from the National Research Foundation and the British Academy under the SA/UK Bilateral Chair in Political Theory.</span></em></p>
The Angolan political elite lost an extraordinary opportunity to improve significantly the country’s constitution.
Albano Agostinho Troco, NRF/British Academy Postdoctoral Research Fellow under the SA-UK Bilateral Chair in Political Theory, University of the Witwatersrand
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/165294
2021-08-03T12:34:00Z
2021-08-03T12:34:00Z
House committee investigating Capitol insurrection has a lot of power, but it’s unclear it can force Trump to testify
<figure><img src="https://images.theconversation.com/files/413996/original/file-20210730-19-17bwl0i.jpeg?ixlib=rb-1.1.0&rect=23%2C15%2C5264%2C3504&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">(L-R) Rep. Liz Cheney (R-WY), Rep. Adam Kinzinger (R-IL) and Rep. Elaine Luria (D-VA) during a meeting on July 27, 2021, of the House select committee investigating the Jan. 6 attack on the U.S. Capitol</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/rep-liz-cheney-and-rep-adam-kinzinger-listen-as-rep-elaine-news-photo/1234242727?adppopup=true">Andrew Harnik-Pool/Getty Images</a></span></figcaption></figure><p>In the <a href="https://www.cnn.com/2021/07/27/politics/trump-republicans-hearing-reaction/index.html">intensely partisan atmosphere</a> surrounding the House committee investigating the Jan. 6, 2021, attack on the U.S. Capitol, will the committee be able to get the information it needs?</p>
<p>The American people, said <a href="https://www.cnn.com/2021/07/27/politics/read-cheney-statement/index.html">Republican House member Liz Cheney</a>, “deserve the full and open testimony of every person with knowledge of the planning and preparation for Jan. 6.” </p>
<p>In <a href="https://www.usatoday.com/story/news/politics/2021/07/27/liz-cheney-statement-jan-6-committee-probing-capitol-insurrection/5375885001/">opening statements</a> at the first hearing held on July 27 by the House select committee investigating the attack, Cheney and other committee members said that an accurate record of the events on Jan. 6 - and in the time that led up to it - is essential to understanding the factors contributing to the attack so that future attacks may be prevented. </p>
<p>The committee has several tools for shedding light on the events of Jan. 6 and ensuring that the American people learn the truth about what happened. </p>
<p>But its work can also be delayed and frustrated if someone – likely former President Donald Trump and his allies – mounts a legal fight to deny the committee information it has sought.</p>
<h2>Investigating ‘darkest days’</h2>
<p>On June 30, 2021, lawmakers passed <a href="https://www.congress.gov/bill/117th-congress/house-resolution/503/text?q=%7B%22search%22%3A%5B%22H.Res.+503%22%5D%7D&r=1&s=2">House Resolution 503</a>, which created the select committee. It charges the committee with investigating the activities of law enforcement, intelligence agencies and the armed forces relating to that day as well as uncovering the factors contributing to the attack, including technology, social media and malign foreign influences. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/413999/original/file-20210730-23-nigrca.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="President Trump in front of flags and on a stage at a rally, with people crowded below him" src="https://images.theconversation.com/files/413999/original/file-20210730-23-nigrca.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/413999/original/file-20210730-23-nigrca.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/413999/original/file-20210730-23-nigrca.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/413999/original/file-20210730-23-nigrca.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/413999/original/file-20210730-23-nigrca.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/413999/original/file-20210730-23-nigrca.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/413999/original/file-20210730-23-nigrca.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Then-President Donald Trump at the ‘Stop the Steal’ rally on Jan. 6, 2021, that preceded the Capitol insurrection.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/president-donald-trump-greets-the-crowd-at-the-stop-the-news-photo/1294918265?adppopup=true">Tasos Katopodis/Getty Images</a></span>
</figcaption>
</figure>
<p>Ultimately, the committee aims to issue a report with detailed findings and suggestions for corrective measures.</p>
<p>The select committee has already used one of its main tools for investigating the attack on the Capitol: holding public hearings and inviting testimony from key players in the attack. </p>
<p><a href="https://www.npr.org/2021/07/27/1019736664/jan-6-insurrection-hearing-police-nancy-pelosi-committee">Four police officers who had defended the Capitol</a> during the attack gave testimony during the committee’s first hearing.</p>
<p>The committee will continue to <a href="https://www.justsecurity.org/77588/questions-the-january-6-select-committee-should-ask-its-witnesses/">interview witnesses</a> and invite testimony by law enforcement officers, former White House staffers, rally organizers and members of Congress. It can also ask for and receive information from various government agencies and private organizations.</p>
<p>But if the committee cannot obtain information or testimony it deems vital to the investigation, it has the power to issue subpoenas. </p>
<h2>Compelling requests</h2>
<p>A subpoena is a legal order requiring a person to appear and testify or produce documents.</p>
<p><a href="https://www.congress.gov/bill/117th-congress/house-resolution/503/text?q=%7B%22search%22%3A%5B%22H.Res.+503%22%5D%7D&r=1&s=2">House Resolution 503</a> expressly authorizes the committee to issue and compel subpoenas for documents and testimony.</p>
<p>Historically, congressional committees <a href="https://theconversation.com/courts-have-avoided-refereeing-between-congress-and-the-president-but-trump-may-force-them-to-wade-in-128269">have preferred to cooperate</a> with the other branches of government to obtain information. But if a cooperative approach does not produce the information the select committee needs, it can subpoena information and testimony from members of Congress, former White House staffers, social media companies and even the former president. </p>
<p>Former presidents have <a href="https://www.justsecurity.org/61535/congress-subpoena-trump-testify/">willingly testified</a> before congressional committees in the past, but it’s unlikely that Trump would. While in office, he repeatedly <a href="https://theconversation.com/courts-have-avoided-refereeing-between-congress-and-the-president-but-trump-may-force-them-to-wade-in-128269">claimed executive privilege</a>, which allows a president to withhold certain information from Congress, the courts or the public, in response to congressional subpoenas.</p>
<p>And Trump <a href="https://www.cbsnews.com/news/trump-financial-records-impasse-house-democrats/">continues to resist</a> the subpoena the House Oversight and Reform Committee issued to his accounting company, Mazars, for his financial documents in 2019. </p>
<p>A congressional subpoena issued by the select committee to <a href="https://bipartisanreport.com/2021/07/04/trump-testimony-under-oath-to-congress-over-capitol-attack-hinted-by-james-clyburn/">Trump</a> or even former officials from the Trump White House will <a href="https://www.politico.com/news/2021/07/29/jan-6-dems-former-trump-officials-501361">likely lead to similar, protracted litigation</a>. </p>
<p>Such litigation threatens to delay the select committee’s progress in investigating the events surrounding the Jan. 6 attack on the Capitol. </p>
<p>The law is less than clear about whether a former president can successfully claim executive privilege in the face of a congressional subpoena. The executive and legislative branches have <a href="https://theconversation.com/courts-have-avoided-refereeing-between-congress-and-the-president-but-trump-may-force-them-to-wade-in-128269">historically preferred to avoid such confrontations</a> and to negotiate the sharing of information. </p>
<p>As a result, federal courts have yet to determine the extent of the executive privilege retained by former presidents and when they can assert it. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/414144/original/file-20210802-16-zjv8fh.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Four policemen sitting at a table in a Congressional hearing." src="https://images.theconversation.com/files/414144/original/file-20210802-16-zjv8fh.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/414144/original/file-20210802-16-zjv8fh.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/414144/original/file-20210802-16-zjv8fh.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/414144/original/file-20210802-16-zjv8fh.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/414144/original/file-20210802-16-zjv8fh.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/414144/original/file-20210802-16-zjv8fh.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/414144/original/file-20210802-16-zjv8fh.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Four policemen who fought rioters during the Jan. 6 Capitol attack testified on July 27, 2021, to the House select committee investigating the attack.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/capitol-police-sgt-aquilino-gonell-washington-metropolitan-news-photo/1234241743?adppopup=true">Andrew Harnik-Pool/Getty Images</a></span>
</figcaption>
</figure>
<h2>To enforce or not</h2>
<p>In a <a href="https://supreme.justia.com/cases/federal/us/433/425/">1977 decision</a>, the Supreme Court held that former President Richard Nixon could claim executive privilege in challenging a federal law known as “The Presidential Recordings and Materials Preservation Act.” That law ensured government agencies and, ultimately, the public, <a href="https://dictionary.archivists.org/entry/presidential-recordings-and-materials-preservation.html">could have access to certain documents and tape recordings</a> made during Nixon’s presidency. Although the court allowed Nixon to make the executive privilege claim, it ultimately ruled against him and upheld the law, noting that the lack of support for Nixon’s claim by other presidents weakened his arguments for executive privilege. </p>
<p>Trump would not have a stronger claim; it’s unlikely President Biden would support his assertion of executive privilege in an attempt to prevent disclosure of testimony or documents relating to the Jan. 6 attack. </p>
<p>The <a href="https://www.justsecurity.org/77610/unpacking-the-doj-letters-no-executive-privilege-for-trump-era-witnesses-on-2020-election-machinations/">Department of Justice</a> has already informed Trump administration witnesses that it does not support any assertions of executive privilege on matters relating to efforts to overturn the 2020 presidential election. </p>
<p>[<em>Like what you’ve read? Want more?</em> <a href="https://theconversation.com/us/newsletters/the-daily-3?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=likethis">Sign up for The Conversation’s daily newsletter</a>.]</p>
<p>Trump administration witnesses could still challenge congressional subpoenas and delay the investigation. But the Department of Justice determination weakens arguments for executive privilege and may encourage witnesses to testify instead.</p>
<p>The select committee could avoid the legal uncertainty about how courts would resolve the executive privilege claim by deciding not to enforce the subpoena. </p>
<p>The House Committee on Un-American Activities, for example, chose not to enforce a <a href="https://www.justsecurity.org/61535/congress-subpoena-trump-testify/">subpoena against former President Harry Truman</a> when it sought his testimony in 1953. Truman publicly protested that the subpoena impeded the separation of powers but did not assert an executive privilege claim. The committee avoided a legal confrontation by backing down, and Truman never testified.</p>
<p>The select committee may gain more from trying to obtain documents and testimony through informal channels than its subpoena power. It has considerable power to request information from a wide variety of sources and may discover that a protracted legal battle with the former administration would obscure more information than it reveals.</p><img src="https://counter.theconversation.com/content/165294/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Kirsten Matoy Carlson does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>
GOP Rep. Liz Cheney says the American people “deserve the full and open testimony of every person with knowledge of the planning and preparation for Jan. 6.” Will they get it?
Kirsten Matoy Carlson, Associate Professor of Law and Adjunct Associate Professor of Political Science, Wayne State University
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/160014
2021-05-09T08:23:47Z
2021-05-09T08:23:47Z
Choosing Lesotho’s judges on merit should be only the start of judicial reforms
<figure><img src="https://images.theconversation.com/files/398672/original/file-20210504-13-ecx2u3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The move towards an open process for appointing judges is unprecedented in Lesotho.</span> <span class="attribution"><span class="source">shutterstock</span></span></figcaption></figure><p>Lesotho’s Judicial Service Commission has started a process to recruit seven judges of the High Court through a merit-based process. In February 2021, the Commission issued a <a href="https://www.gov.ls/documents/public-announcement-of-judicial-vacancies-in-the-high-court-of-the-kingdom-of-lesotho/">public advertisement</a> announcing the vacancies and spelling out the competencies required. The vacancies follow a slew of deaths and retirements of judges. </p>
<p>The High Court is the second highest court in <a href="https://www.britannica.com/place/Lesotho">Lesotho</a>; after the Court of Appeal. But, the High Court is more important as it is the highest court with unlimited original jurisdiction to hear and determine any civil or criminal proceedings, and the power to review the decisions or proceedings of any subordinate court or tribunal. Since 2000, the court sits as a constitutional court when it decides on <a href="https://lesotholii.org/legislation/sl/194">constitutional matters</a>.</p>
<p>The <a href="https://www.constituteproject.org/constitution/Lesotho_2011.pdf?lang=en">Constitution</a> provides that the High Court shall comprise the Chief Justice and any number of judges as the Act of parliament may determine. Judges are appointed by the King on the advice of the Judicial Service Commission (JSC). The JSC is a constitutional structure responsible for the appointment, conduct and removal of judicial officers.</p>
<p>The advertisement was intended to culminate in public interviews of shortlisted candidates in May. But the process has been suspended due to <a href="https://he-il.facebook.com/Informativenewspaper/posts/10160934367678989">lack of funding</a>. </p>
<p>Nevertheless, the move to appoint judges through an open process based on merit is unprecedented in Lesotho, a small nation that is completely landlocked by South Africa, and thus laudable. So far, the appointment of judges has been an obscure and oftentimes clandestine affair between the Commission and government. This has produced incompetent judges and claims that the judiciary is beholden to the executive. </p>
<p>Welcome as it is, the move towards an open process is only a small step in reforming the country’s judiciary. The appointment of judicial officers in Lesotho is beset with much deeper systemic problems that need urgent attention.</p>
<h2>The practice so far</h2>
<p>In the past, the public used to simply see a person being announced as a judge of the High Court by the JSC. The usual practice has been to appoint a person as an acting judge, which would ordinarily attract little public scrutiny, and later confirm the person as a permanent judge. </p>
<p>This deplorable practice is arguably a factor, among others, contributing to the current <a href="http://www.icj.org/wp-content/uploads/2014/10/Lesotho-Crisis-judicial-leadership-Publications-Mission-report-2014-ENG.pdf">state of incompetence</a> in the High Court. The Court of Appeal often <a href="https://lesotholii.org/ls/judgment/court-appeal/2019/2-0">decries</a> the quality of the <a href="https://lestimes.com/mosito-slams-high-court-judges/">judgments</a> of the High Court judges.</p>
<p>Until now, the JSC and government have tended to promote either magistrates or registrars of the High Court to the bench. The registrar is the chief accounting officer for the judiciary. Even this practice was not based on any objective criteria. </p>
<p>Sometimes, very junior magistrates would be appointed over more senior and competent ones. That practice excluded other areas of the legal profession, such as private legal practitioners (lawyers) and legal academics.</p>
<figure class="align-left ">
<img alt="A man wearing a suit and tie stares in the distance" src="https://images.theconversation.com/files/398885/original/file-20210505-15-j9khe2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/398885/original/file-20210505-15-j9khe2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=899&fit=crop&dpr=1 600w, https://images.theconversation.com/files/398885/original/file-20210505-15-j9khe2.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=899&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/398885/original/file-20210505-15-j9khe2.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=899&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/398885/original/file-20210505-15-j9khe2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1130&fit=crop&dpr=1 754w, https://images.theconversation.com/files/398885/original/file-20210505-15-j9khe2.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1130&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/398885/original/file-20210505-15-j9khe2.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1130&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Lesotho’s constitutional monarch, King Letsie III.</span>
<span class="attribution"><span class="source">Photo © Crozet / Pouteau</span></span>
</figcaption>
</figure>
<p>Perhaps the new approach to recruiting judges is inspired by the practice <a href="https://www.judgesmatter.co.za/jsc-candidates-april-2021-and-april-2020/">in South Africa</a>, and the fact that Lesotho is in the process of constitutional reforms.</p>
<p>Hopefully, the drive for meritocracy in the High Court will be applied across all facets of the judiciary to make it genuinely meritorious. </p>
<h2>The bigger problem</h2>
<p>While the new move is welcome, a lot still remains to be done to enhance merit in the appointment of <a href="http://trc.org.ls/wp-content/uploads/2019/09/JUDICIAL-REFORMS-IN-LESOTHO-A-CASE-FOR-CHANGING-THE-BASE-AND-THE-SUPERSTRUCTURE.pdf">judges of the superior courts</a> in Lesotho. </p>
<p>The problem is that meritocracy is currently not a constitutional requirement. The Constitution is still cast in the <a href="http://trc.org.ls/wp-content/uploads/2019/09/JUDICIAL-REFORMS-IN-LESOTHO-A-CASE-FOR-CHANGING-THE-BASE-AND-THE-SUPERSTRUCTURE.pdf">colonial mould</a> whereby the executive dominates the appointment of judges. That needs to change. </p>
<p>The problem is more acute when it comes to the appointment of judicial leaders – the Chief Justice and the President of the Court of Appeal. They are appointed through a purely political process.</p>
<p>The Constitution provides that the King appoints them on the advice of the Prime Minister. There is no constitutional requirement for competition or scrutiny. Consequently, successive PMs have treated it as an executive prerogative and exploited this deficiency to their political advantage. Hence the judiciary has been <a href="https://freedomhouse.org/sites/default/files/Politics%20%20of%20Judicial%20Independence%20in%20Lesotho.pdf">enmeshed in politics</a>. The high turnover in the offices of President of the Court of Appeal and that of Chief Justice in recent times is testament to the manner in which the judiciary is entangled in politics.</p>
<p>When it comes to the appointment of other High Court judges, other than the Chief Justice, it is slightly better. That’s because the Constitution created the Judicial Services Commission as an interlocutor. But the Commission is weirdly constituted. </p>
<p>In terms of section 132(1) of the <a href="https://www.constituteproject.org/constitution/Lesotho_2011.pdf?lang=en">Constitution</a>, the Commission consists of four members: the Chief Justice as chairperson, the attorney general, chairman of the public service commission and a judge or former judge chosen by the King, on the advice of the Chief Justice.</p>
<p>The Commission’s composition is skewed in favour of the executive as all its members are direct or indirect appointees of the executive. This is not surprising as the entire relationship between the three arms of government - parliament, the executive and the judiciary - in Lesotho turns on the strong executive that overshadows the other two branches. This is a profoundly ingrained constitutional problem.</p>
<h2>Move towards meritocracy</h2>
<p>The new move towards openness comes after a previous process to appoint High Court judges was invalidated by the Constitutional Division of the High Court <a href="https://lesotholii.org/ls/judgment/high-court-constitutional-division/2020/57-0">in December 2020</a>. </p>
<p>It found the process to have been clandestine and irregular. The former acting Chief Justice and former Attorney General had secretly constituted themselves into a Judicial Services Commission, and appointed their preferred five candidates to the bench.</p>
<p>The registrar, who was allegedly <a href="https://lestimes.com/clash-of-the-titans-4/">on the list of candidates</a>, then wrote to King Letsie III to advise him to appoint those candidates. The registrar is the secretary to the Commission. </p>
<p>The King <a href="https://africanlii.org/article/20200910/litigation-lesotho-king-declines-appoint-judges">declined to appoint the judges</a>, citing irregularity in the appointment process. The then Minister of Justice, <a href="https://www.thepost.co.ls/news/mahao-back-at-varsity/">Nqosa Mahao</a>, also openly opposed the appointment as <a href="https://allafrica.com/stories/202010070537.html">irregular</a>. The Constitutional Division of the High Court <a href="https://lesotholii.org/ls/judgment/high-court-constitutional-division/2020/57-0">confirmed this view</a>.</p>
<h2>What needs to happen</h2>
<p>There is, therefore, a need for a more comprehensive judicial reforms in Lesotho. Fortunately, the country is in a somewhat sluggish <a href="http://democracyinafrica.org/perilous-state-national-reforms-lesotho/">constitutional reform programme</a> which includes, among others, the reforms of the judiciary.</p>
<p>It is vital that the reforms recast the relationship between the executive and judicial branches of government to reduce the executive’s excessive powers over the judiciary, including the appointment of judges. </p>
<p>The JSC, as the buffer between the two branches, will also have to change. Its composition, processes of appointment and powers over the judicial officers will have to change significantly. Its membership will have to be more diverse and reduce executive dominance.</p>
<p>Its mandate will then have to be expanded to include the appointment, discipline and removal of all judicial officers - including the Chief Justice and the President of the Court of Appeal.</p><img src="https://counter.theconversation.com/content/160014/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Hoolo 'Nyane does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>
The appointment of judges has hitherto been an obscure and oftentimes clandestine affair. This has produced incompetent judges and led to claims that the judiciary is beholden to the executive.
Hoolo 'Nyane, Head of Department, Public and Environmental Law Department, University of Limpopo
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/159338
2021-04-22T15:08:25Z
2021-04-22T15:08:25Z
South Africa is set to appoint a new chief justice. The stakes have never been so high
<figure><img src="https://images.theconversation.com/files/396033/original/file-20210420-13-1izfv92.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">South African chief justice Mogoeng Mogoeng's term ends in September. </span> <span class="attribution"><span class="source">GCIS/Flickr</span></span></figcaption></figure><p>By October, South Africa’s Chief Justice, <a href="https://www.concourt.org.za/index.php/judges/current-judges/13-current-judges/71-justice-mogoeng-mogoeng">Mogoeng Mogoeng</a>, will have finished his 12-year term at the helm of the Constitutional Court. How will his successor be selected, and what qualities are needed by the holder of this high office?</p>
<p>To answer these questions we need to understand the context. This is because the country’s judiciary has been increasingly drawn into party political wrangling and contestation.</p>
<p>Any form of constitutional democracy which allows judicial review of the exercise of public power thrusts the courts into the political limelight. Inevitably, acts and decisions of parliament, the president and cabinet will be challenged against the constitutional framework. The <a href="https://www.gov.za/about-government/contact-directory/judicial-institution/judicial-institution/superior-courts-south#">superior courts</a> of the country provide the forum in which this plays out. </p>
<p>If there is no rule of law, brute force, random acts of violence and popular anarchy become the avenues for settling scores. In South Africa, the determination never to repeat the devastating legacies of apartheid resulted in <a href="https://www.justice.gov.za/legislation/constitution/saconstitution-web-eng.pdf">“the supremacy of the constitution and the rule of law”</a> being enshrined as fundamental values, justiciable and enforceable by the courts.</p>
<p>This has inevitably raised the political profile of the judges, especially their leaders, given that they effectively have the final say on what the words in the constitution mean. </p>
<p>The judicial process is thus hugely contested. This places an exaggerated burden on the courts to act with maximum independence and impartiality. Without such qualities, the judiciary runs the risk of losing its legitimacy among the public, ultimately its surest form of protection from interference.</p>
<h2>Out of sync</h2>
<p>The exercise of constitutional authority in South Africa is constrained by the checks and balances inherent in the <a href="http://www.saflii.org/za/journals/DEREBUS/2014/118.pdf">doctrine of the separation of powers</a>. It requires each branch of government (parliament, the cabinet and the courts) to show mutual respect to the others.</p>
<p>If one branch of government fails in its regulatory role, an imbalance is created. In turn this means that other branches are subject to unjustified pressure.</p>
<p>This happened in South Africa between <a href="http://www.thepresidency.gov.za/profiles/president-jacob-zuma-0">May 2009 to February 2018</a>, when the regime of former President Jacob Zuma manifestly and <a href="https://www.loot.co.za/product/richard-calland-the-zuma-years/lwlk-1845-g5a0">corruptly abused its constitutional authority</a>. Parliament failed dismally to fulfil its constitutional obligation to <a href="https://www.dailymaverick.co.za/article/2021-04-19-speaker-thandi-modise-does-damage-control-apologises-for-parliament-seeming-to-be-sleepist-and-pleads-for-more-resources/">hold the executive accountable</a>. </p>
<p>As a result, those who wished to challenge such abuse of power and to uphold the constitution, approached the courts. This increasing resort to the courts came to be known as <a href="https://www.litnet.co.za/reader-impression-lawfare-judging-politics-in-south-africa-by-michelle-le-roux-and-dennis-davis/">“lawfare”</a>. The more frequently the courts found against actions and decisions of the government, the more virulently the political leadership of the governing African National Congress <a href="https://www.sowetanlive.co.za/news/2011-08-18-full-interview-ancs-mantashe-lambasts-judges/">criticised the judges</a>.</p>
<p>The level of such lawfare has subsided since President Cyril Ramaphosa came to power in <a href="http://www.thepresidency.gov.za/profiles/president-cyril-ramaphosa%3A-profile">February 2018 </a>, with one exception. Those whose abuse of power has been exposed through the <a href="https://www.sastatecapture.org.za/">Zondo Commission into state capture</a> or through the investigative media have <a href="https://www.sowetanlive.co.za/news/south-africa/2019-08-16-general-council-of-the-bar-criticises-malemas-veiled-attacks-on-judges/">vilified the courts</a> generally in public, or targeted specific judges for <a href="https://theconversation.com/how-zuma-uses-war-metaphor-to-fight-allegations-of-graft-in-south-africa-156223">scandalous attack</a>.
This is the context in which a new Chief Justice will be appointed in South Africa later this year.</p>
<h2>What should be taken into account</h2>
<p>Formally, the constitution is clear: <a href="https://www.justice.gov.za/legislation/constitution/saconstitution-web-eng.pdf">section 174 (3)</a> provides that</p>
<blockquote>
<p>The President as head of the national executive, after consulting the [Judicial Service Commission] and the leaders of parties represented in the National Assembly, appoints the Chief Justice.</p>
</blockquote>
<p>This means that the president must act in consultation with his cabinet, and after consultation with the <a href="https://www.judiciary.org.za/index.php/judicial-service-commission/about-the-jsc">Judicial Service Commission</a> and other political leaders (consultation is required but the advice given need not be followed).</p>
<p>Given the highly contested nature of the judicial process, I would argue that the following criteria should be uppermost in Ramaphosa’s mind when selecting the next chief justice:</p>
<ul>
<li><p>Strong credentials as an intellectual leader on the Bench, enjoying the respect of their peers in the superior courts. The Chief Justice needs to be able to be confident that, having taken a stance on behalf of the judiciary as a whole, the judges will support him or her;</p></li>
<li><p>A clear proponent of the transformative nature of the entire constitutional framework, with a jurisprudential track record to back up such a stance. In other words, that a judge has given judgments in the past that show their understanding of – and commitment to – transformation to achieve social justice. The <a href="https://www.justice.gov.za/legislation/constitution/saconstitution-web-eng.pdf">constitution</a> demands this;</p></li>
<li><p>Proven capacity to lead the judiciary as a whole. Precisely because they should be appointed for their independence of mind, among other qualities, judges need particularly nuanced and skillful leadership to ensure that they remain committed to the overall success of the constitutional project. An engaged and wise leader will ensure this;</p></li>
<li><p>An impressive record as a manager, preferably within the administration of justice. The <a href="https://nationalgovernment.co.za/units/view/28/office-of-the-chief-justice-ocj">Office of the Chief Justice</a> has been a department of state for a number of years. This means that the incumbent must also give operational and administrative guidance to the entire administration of justice. At the same time, the Chief Justice must maintain his or her judicial profile by presiding over matters in the apex court;</p></li>
<li><p>Manifest ability to engage credibly with the general public, reassuring it of the fair-minded, principled, fearless, and incorruptible nature of those appointed as judges, and of the superior court system as a whole. </p></li>
</ul>
<h2>Independence is key</h2>
<p>Furious controversies have been sparked by the failure of the current Chief Justice Mogoeng to <a href="https://www.businesslive.co.za/bd/national/2021-03-04-chief-justice-mogoeng-mogoeng-chided-for-wilful-misconduct-over-israel-comments/">separate his religious views</a> from his public office.</p>
<p>His successor must tread carefully when tempted to enter the broader political terrain. This is a key quality. Legitimacy (in the sense of public trust and confidence) is the final guarantor of judicial independence. Without it the courts are susceptible to party political abuse and undermining. The judiciary needs a strong, principled, articulate and fearless person to lead it.</p>
<p>These are high stakes indeed. The appointment of the next Chief Justice is a matter which should concern all South African and, I would argue, those who value the rule of law across the continent and beyond.</p><img src="https://counter.theconversation.com/content/159338/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Hugh Corder has received funding in the past from the National Research Foundation of South Africa.. He serves as a Director of Freedom under Law and on the Executive Committee of the Council for the Advancement of the South African Constitution (CASAC). This article is written in his personal capacity, and it does not necessarily reflect the views of any of the above bodies.. </span></em></p>
The judicial process in South Africa is hugely contested. This places an exaggerated burden on the courts to act with maximum independence and impartiality.
Hugh Corder, Professor of Public Law, University of Cape Town
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/150333
2021-02-04T13:12:27Z
2021-02-04T13:12:27Z
Why disputes between Congress and the White House so often end up in court
<figure><img src="https://images.theconversation.com/files/382363/original/file-20210203-17-oa22js.png?ixlib=rb-1.1.0&rect=1%2C0%2C1195%2C472&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The three branches of U.S. government often find themselves in tension.</span> <span class="attribution"><span class="source">White House, Eric Kiser; Capitol, John Xavier; Supreme Court, Architect of the Capitol</span>, <a class="license" href="http://creativecommons.org/licenses/by-sa/4.0/">CC BY-SA</a></span></figcaption></figure><p>When the executive and legislative branches of the U.S. government don’t agree, especially on thorny, politically charged issues such as reproductive rights and immigration policy, they often seek ways to advance their agendas without actually passing legislation. </p>
<p><a href="https://theconversation.com/what-is-an-executive-order-and-why-dont-presidents-use-them-all-the-time-150896">Presidents often use executive orders</a> and other presidential powers to declare policies, but those can be changed when new administrations take power.</p>
<p>The main method Congress has to set government policy is lawmaking, but the legislative branch often declines to make laws. This means that those seeking answers – both citizens and even Congress itself – <a href="https://www.nytimes.com/2019/08/13/us/politics/trump-house-lawsuits.html">turn to the courts</a> for solutions to the nation’s most pressing problems. In 2020 alone, Americans asked the U.S. Supreme Court to rule on <a href="https://www.oyez.org/cases/2019/18-1323">abortion</a>, <a href="https://www.oyez.org/cases/2019/19-431">freedom of religion</a> and <a href="https://www.oyez.org/cases/2019/18-587">immigration</a>. Those are all issues in which recent congressional proposals have failed to become law, with the executive branch taking action instead.</p>
<p>A similar situation may be ahead over President Joe Biden’s proposed coronavirus rescue plan. On Feb. 2, U.S. Rep. Jim Clyburn of South Carolina, a leading Democrat, urged Biden to “<a href="https://www.politico.com/news/2021/02/02/biden-executive-powers-gop-465015">use his executive powers</a> … and let them take you to court.”</p>
<h2>Handling interbranch conflict</h2>
<p>At times the Supreme Court has responded to lawsuits with action. In a now-famous 1974 ruling, the Supreme Court ordered President Richard Nixon to <a href="https://www.washingtonpost.com/history/2019/10/03/inside-supreme-court-ruling-that-made-nixon-turn-over-his-watergate-tapes/">turn over his secret recordings of conversations</a> held in the Oval Office. In that ruling, the justices quoted a landmark decision from the early days of the United States: “<a href="https://www.history.com/topics/united-states-constitution/marbury-v-madison">It is emphatically the province and duty of the judicial department to say what the law is</a>.”</p>
<p>In general, though, the courts prefer to interpret the rules rather than make them. As far back as 1962, the Supreme Court declared that it, and the federal courts more generally, would seek to avoid what it considered to be <a href="https://www.law.cornell.edu/wex/political_question_doctrine">political questions</a> – questions best addressed with public debate and the legislative process. </p>
<p>At times, lawmakers seem to use cases against the president to avoid the need to pass legislation. The federal courts have consistently – and, at times, aggressively – rebuked members of Congress for bringing cases to court rather than using their own powers.</p>
<p>In 1999, for instance, U.S. District Judge Paul Friedman explained to the members of Congress who tried to sue President Bill Clinton over taking military action in Kosovo without congressional authorization: “<a href="https://law.justia.com/cases/federal/district-courts/FSupp2/52/34/2522389/">The most that can be said is that Congress is divided</a> … and that the President has continued with air strikes in the face of that divide. Absent a clear impasse between the executive and legislative branches, resort to the judicial branch is inappropriate.”</p>
<p>In 2011, members of Congress who sued President Barack Obama for using unauthorized military force to overthrow Libyan dictator Moammar Gadhafi <a href="https://dockets.justia.com/docket/district-of-columbia/dcdce/1:2011cv01096/148659">received a similar rejection from the court</a>. </p>
<p>In a 2020 ruling, a three-judge appeals court panel dismissed a case in which legislators alleged Donald Trump illegally made money from foreign governments while serving as president. The court wrote, “The Members can, and likely will, continue to … make their case to the American people, their colleagues in the Congress and the President himself, all of whom are free to engage that argument as they see fit. <a href="https://law.justia.com/cases/federal/appellate-courts/cadc/19-5237/19-5237-2020-02-07.html">But we will not – indeed we cannot – participate in this debate</a>.”</p>
<p>Congress has even turned to the courts to get around its own internal disputes. The <a href="https://nymag.com/intelligencer/2017/04/republicans-are-tearing-each-other-to-pieces.html">main Republican initiative</a> of the Trump administration was an <a href="https://www.washingtonpost.com/powerpost/why-senate-republicans-are-in-such-a-rush-this-month-on-health-care/2017/09/20/111befe4-9d4b-11e7-9c8d-cf053ff30921_story.html">effort to repeal the Affordable Care Act</a>, but it <a href="https://www.nytimes.com/2017/07/27/us/politics/obamacare-partial-repeal-senate-republicans-revolt.html">failed repeatedly</a> – even when both houses of Congress and the White House were controlled by the GOP.</p>
<p>The disagreement was among Republicans themselves, who could not agree on what could replace the act. So they turned to the <a href="https://www.marketwatch.com/story/the-supreme-courts-obamacare-case-was-high-stakes-before-ruth-bader-ginsburgs-death-heres-why-its-even-more-important-now-2020-09-22">Supreme Court in hopes of overturning it</a> – but failed.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/294246/original/file-20190925-51457-1ifkyrp.jpg?ixlib=rb-1.1.0&rect=938%2C220%2C2056%2C1616&q=45&auto=format&w=1000&fit=clip"><img alt="The Constitutional Convention" src="https://images.theconversation.com/files/294246/original/file-20190925-51457-1ifkyrp.jpg?ixlib=rb-1.1.0&rect=938%2C220%2C2056%2C1616&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/294246/original/file-20190925-51457-1ifkyrp.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=387&fit=crop&dpr=1 600w, https://images.theconversation.com/files/294246/original/file-20190925-51457-1ifkyrp.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=387&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/294246/original/file-20190925-51457-1ifkyrp.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=387&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/294246/original/file-20190925-51457-1ifkyrp.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=486&fit=crop&dpr=1 754w, https://images.theconversation.com/files/294246/original/file-20190925-51457-1ifkyrp.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=486&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/294246/original/file-20190925-51457-1ifkyrp.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=486&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">The founders imagined three branches independent from one another, not making one the referee between the other two.</span>
<span class="attribution"><a class="source" href="https://www.aoc.gov/art/other-paintings-and-murals/signing-constitution">Howard Chandler Christy/Architect of the Capitol</a></span>
</figcaption>
</figure>
<h2>A change in circumstance</h2>
<p>The founders had not envisioned that Congress might seek help from the courts against the executive branch. When they crafted the Constitution, they expected, as James Madison said, each branch would have “independence” from the others and enjoy the “<a href="https://avalon.law.yale.edu/18th_century/fed51.asp">necessary constitutional means and personal motives to resist the encroachments of the others</a>.”</p>
<p>They anticipated that the legislative branch would jealously guard its own powers, acting on its own rather than running to the courts. And that is what happened for the country’s first 150 years.</p>
<p>Then the political situation changed, making it more useful for Congress to largely cede its own power to the executive branch.</p>
<p>Over time, <a href="https://www.jstor.org/stable/20680255">members of Congress have switched their energy</a> from legislating to focus on helping constituents navigate the federal government’s bureaucracy, and on raising money to get reelected. They no longer have an incentive to produce significant legislation addressing big concerns in Americans’ lives. It’s easier – and more successful – to blame the other party for obstruction and then get back to helping voters and courting donors.</p>
<p>While legislators used to take positions to <a href="https://www.worldcat.org/title/congress-the-electoral-connection/oclc/750871869">signal their views to constituents</a>, there is increasingly as much incentive to <a href="https://doi.org/10.1111/1468-2508.00215">avoid taking a position</a> to hide views from constituents. Even when there is a genuine desire to pass major legislation, between the <a href="https://www.annualreviews.org/doi/abs/10.1146/annurev-polisci-110813-032156">increased dysfunction in Congress</a> and the <a href="https://www.jstor.org/stable/24637816">increased partisanship</a>, there are very few paths forward when it comes to controversial issues.</p>
<p>Over time, presidents have <a href="https://today.law.harvard.edu/feature/presidential-power-surges/">expanded the reach of the executive branch</a>, using executive orders or departmental rule-making to <a href="https://law.stanford.edu/2017/09/06/michael-mcconnell-on-executive-orders-daca-and-the-constitution/">adjust government policies</a>. When members of Congress disagree with those actions, they no longer work on crafting legislation to address the underlying issue. Instead, they go to the courts and ask the judiciary to stop the president – often claiming that the president is <a href="https://www.politico.com/story/2011/06/lawmakers-sue-obama-over-libya-057032">usurping Congress’ power</a>, even though Congress has <a href="https://www.washingtonpost.com/wp-srv/national/daily/june99/dismiss09.htm">refused to exercise that very power</a>.</p>
<p>[<em>Understand key political developments, each week.</em> <a href="https://theconversation.com/us/newsletters/politics-weekly-74/?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=politics-understand">Subscribe to The Conversation’s election newsletter</a>.]</p>
<h2>Politicized judiciary</h2>
<p>These interbranch conflicts have pulled the judiciary into political fights, resulting in regular public and media discussions of <a href="https://www.theguardian.com/news/datablog/2020/oct/26/us-supreme-court-amy-coney-barrett-conservative-majority">the political views of members of the Supreme Court</a>. Often, judges are labeled not as neutral referees but instead as <a href="https://www.npr.org/2018/07/26/632005799/legal-opinions-or-political-commentary-a-new-judge-exemplifies-the-trump-era">tools of the presidents who appointed them</a>.</p>
<p>When he was president, Trump made that connection directly on several occasions, talking about “<a href="https://time.com/5461827/donald-trump-judiciary-chief-justice-john-roberts/">Obama judges</a>” and referring to judges he had appointed as “<a href="https://washingtonmonthly.com/2019/11/12/will-trumps-judges-save-his-presidency/">my judges</a>.” He even made clear he was nominating Amy Coney Barrett to the Supreme Court with <a href="https://www.cbsnews.com/news/trump-amy-coney-barrett-confirmation-election-senator-chris-coons/">the expectation she would help him win reelection</a>. </p>
<p>Chief Justice John Roberts made a rare public statement <a href="https://apnews.com/article/c4b34f9639e141069c08cf1e3deb6b84">defending the objectivity of federal judges</a> – but Americans have an <a href="https://www.pewresearch.org/fact-tank/2020/09/25/before-ginsburgs-death-a-majority-of-americans-viewed-the-supreme-court-as-middle-of-the-road/">increasingly partisan view of the judiciary</a>, especially since Trump’s three divisive nominations to the Supreme Court.</p>
<p>It’s a mixed-up system, where lawmakers are reluctant to make laws, presidents are left to find ways to force action, and judges are asked to make decisions about what public policies will be. It’s difficult to see how that arrangement can help the country address any of its pressing problems, but perhaps no surprise that so many have emerged and not yet been solved.</p><img src="https://counter.theconversation.com/content/150333/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Sarah Burns is a Senior Fellow at the Institute for Humane Studies and a Fellow at the Quincy Institute. </span></em></p>
When presidents have tried to address pressing issues through executive action, members of Congress are quick to ask the courts to step in.
Sarah Burns, Associate Professor of Political Science, Rochester Institute of Technology
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/144360
2020-08-14T01:59:51Z
2020-08-14T01:59:51Z
The WA government legislated itself a win in its dispute with Clive Palmer — and put itself above the law
<figure><img src="https://images.theconversation.com/files/352839/original/file-20200814-18-1qw932p.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Dave Hunt/AAP</span></span></figcaption></figure><p>The events of the past few days in Western Australia have been extraordinary as the protracted conflict between the government and mining billionaire Clive Palmer reached a fever pitch.</p>
<p>Premier Mark McGowan declared the state is “<a href="https://www.perthnow.com.au/news/wa/was-hard-border-fight-premier-mark-mcgowan-says-state-is-at-war-with-clive-palmer-ng-b881632720z">in a war</a>” with Palmer, and, in turn, Palmer <a href="https://thewest.com.au/politics/clive-palmer/clive-palmer-compares-wa-to-nazi-germany-and-says-mark-mcgowan-should-be-jailed-as-30-billion-damages-claim-turns-ugly-ng-b881637515z">has called for the premier to be jailed</a>. </p>
<p>While this war of words has become a feature of their ongoing dispute over the <a href="https://theconversation.com/wa-border-challenge-why-states-not-courts-need-to-make-the-hard-calls-during-health-emergencies-143541">WA border closures</a>, these comments are related to an entirely different disagreement — a legal battle Palmer is waging against the state, <a href="https://www.abc.net.au/news/2020-08-11/clive-palmer-sues-wa-government-for-30-billion-over-iron-ore/12547664">reported</a> to be worth A$30 billion. But Palmer <a href="https://www.abc.net.au/news/2020-08-12/clive-palmer-denies-seeking-30-billion-damages-wa-government/12494968">told</a> reporters this week:</p>
<blockquote>
<p>There isn’t any $30 billion claim against the Western Australian government […] It’s [their] assessment of what the damages are for what they’ve done.</p>
</blockquote>
<p>Nevertheless, the Western Australian government late last night <a href="https://www.abc.net.au/news/2020-08-14/clive-palmer-wa-row-not-over-despite-laws-to-block-damages-claim/12556616">took the unprecedented step</a> of passing a bill preventing Palmer from collecting damages from the state.</p>
<p>In essence, the government is seeking to legislate its way out of a legal dispute. There is no doubt that having to pay a potential $30 billion damages claim would be devastating for WA. But trying to circumvent the courts by instead legislating a preferred outcome is also not without its consequences.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/wa-border-challenge-why-states-not-courts-need-to-make-the-hard-calls-during-health-emergencies-143541">WA border challenge: why states, not courts, need to make the hard calls during health emergencies</a>
</strong>
</em>
</p>
<hr>
<h2>What is the current dispute about?</h2>
<p>Late Tuesday, Attorney-General John Quigley introduced the <a href="https://www.parliament.wa.gov.au/Parliament/Bills.nsf/2F1CFD31ACD372EE482585C100337061/$File/Bill%2B205-1.pdf">bill</a> and informed parliament the state was facing the massive damages claim related to the dispute with Palmer. </p>
<p>The dispute stretches back to 2012 and has a complicated history, including both arbitral awards and a Supreme Court decision in Palmer’s favour. It was recently listed for a 15-day arbitration hearing due to commence in November.</p>
<p>While WA has vigorously defended its legal position, Quigley acknowledged “<a href="https://www.parliament.wa.gov.au/Hansard/hansard.nsf/0/A88CF2DEA41205C9482585C10060BD99/$File/A40%20S1%2020200811%20All.pdf">a successful defence of the claim is not guaranteed</a>”. </p>
<p>McGowan also <a href="https://thewest.com.au/politics/schools-hospitals-police-stations-forced-to-close-if-clive-palmer-claim-proceeds-and-bankrupts-wa-ng-b881636517z">warned</a> losing the case would bankrupt the state and </p>
<blockquote>
<p>would mean mass closures of hospitals, of schools, of police stations, mass sackings of public servants and child protection workers. </p>
</blockquote>
<p>The bill was designed to prevent this outcome. And just two days later, it passed into law with the support of both government and opposition members.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/352841/original/file-20200814-24-1j2v2hd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/352841/original/file-20200814-24-1j2v2hd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/352841/original/file-20200814-24-1j2v2hd.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/352841/original/file-20200814-24-1j2v2hd.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/352841/original/file-20200814-24-1j2v2hd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/352841/original/file-20200814-24-1j2v2hd.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/352841/original/file-20200814-24-1j2v2hd.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">McGowan (right) and Quigley have issued dire warnings about the impact Palmer’s lawsuit could have on the state.</span>
<span class="attribution"><span class="source">REBECCA GREDLEY/AAP</span></span>
</figcaption>
</figure>
<h2>What does the new law do?</h2>
<p>Quigley has acknowledged this new law is unprecedented. It is directly and expressly targeting Palmer, his mining company Mineralogy Pty Ltd, and the ongoing dispute over the Balmoral South iron ore project. </p>
<p>It terminates the ongoing arbitration, invalidates existing arbtiration agreements, voids existing arbitral awards, prevents further legal proceedings or appeals, protects the state from any liability of any sort in relation to the dispute (including any criminal liability), and obliges Palmer and his companies to indemnify the state. </p>
<p>The rules of natural justice and freedom of information laws are expressly stated not to apply. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/mineral-wealth-clive-palmer-and-the-corruption-of-australian-politics-117248">Mineral wealth, Clive Palmer, and the corruption of Australian politics</a>
</strong>
</em>
</p>
<hr>
<p>There are a number of concerns with the government’s actions. First, this approach undermines both the rule of law and separation of powers, which are foundational pillars of our Westminster system of government. </p>
<p>It also creates sovereign risk. The premier has sought to downplay this by reassuring the resources sector this is a one-time-only exceptional case. </p>
<p>But how could it realistically not change the risk calculation made by potential investors? If the government shows it is prepared to intervene in this way once, how could anybody be 100% sure that they wouldn’t be prepared to do it again?</p>
<p>Another concern is the singling out of Palmer by the law. While he is clearly a wildly unpopular figure in WA and an enthusiastic litigant, drafting specific laws to target named individuals is never a good idea and undermines the principle of equality before the law. </p>
<p>Laws should not be drafted to target specific individuals, no matter who they are.</p>
<h2>A rushed debate</h2>
<p>The fact that such extraordinary legislation has been rushed into the parliament with no prior consultation or warning, and passed with only two days of debate is also concerning. </p>
<p>The government rejected a proposal to have the legislation considered in more detail by a parliamentary committee, even if done within an expedited timeframe. Quigley <a href="https://www.abc.net.au/news/2020-08-13/clive-palmer-wa-damages-claim-set-to-be-blocked-by-legislation/12554052">claimed</a> </p>
<blockquote>
<p>there is too much at risk for all Western Australians for namby-pamby inquiries.</p>
</blockquote>
<p>While the premier has claimed the urgency was necessary given the unique circumstances, it means an extraordinary law that negates foundational Westminster principles has been passed with minimal scrutiny or debate.</p>
<p>The significance of this is perhaps best captured by <a href="https://www.parliament.wa.gov.au/Hansard/hansard.nsf/0/adb4ea60b87b65f148257b91002e225c/$FILE/A39+S1+20130619+p1826b-1849a.pdf">comments</a> made by McGowan himself in 2013. The view from opposition gave him a somewhat different perspective:</p>
<blockquote>
<p>It has been part of the standing orders and the time-honoured process of parliament in the Westminster system for a long period that we do not rush legislation through without time to consider it because doing so does not allow proper debate in its consideration and mistakes are made in the legislation.</p>
</blockquote>
<p>The unprecedented nature of this particular law must surely amplify these concerns.</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1293526993959624708"}"></div></p>
<h2>What happens next?</h2>
<p>Palmer has already indicated he will challenge the validity of the new law in the High Court. He has also taken steps in the past two days to try to prevent the law from taking effect by <a href="https://www.abc.net.au/news/2020-08-13/clive-palmer-claiming-legal-victory-in-fight-with-wa-government/12555740">registering</a> the existing arbitral awards in the Queensland Supreme Court and applying for an injunction in the Federal Court. </p>
<p>While the WA government has tried to remove the dispute from the courts, it now looks as though the matter will end up in court one way or another — and the legal fight will likely be protracted.</p>
<p>By trying to legislate itself a win in this legal dispute, the government has tried to place itself above the law. This may or may not end up saving WA from a catastrophic damages claim. </p>
<p>But there is still a significant cost in the collateral damage that has been done to the rule of law. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/these-young-queenslanders-are-taking-on-clive-palmers-coal-company-and-making-history-for-human-rights-138732">These young Queenslanders are taking on Clive Palmer's coal company and making history for human rights</a>
</strong>
</em>
</p>
<hr>
<img src="https://counter.theconversation.com/content/144360/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Lorraine Finlay is affiliated with the Liberal Party of Australia, being a former President of the Liberal Women's Council (WA).</span></em></p>
By trying to circumvent the courts, the government is undermining both the rule of law and separation of powers. There is also collateral damage to the rule of law.
Lorraine Finlay, Lecturer in Law, Murdoch University
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/142432
2020-07-09T18:00:39Z
2020-07-09T18:00:39Z
Trump gets no special protections because he’s president and must release financial records, Supreme Court rules
<figure><img src="https://images.theconversation.com/files/346698/original/file-20200709-34-18khp7l.jpg?ixlib=rb-1.1.0&rect=191%2C110%2C6277%2C3903&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Investigators are trying to follow the president's money, and the Supreme Court just gave them the green light.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/man-holds-up-a-justice-delayed-is-justice-denied-sign-in-news-photo/1255215622?adppopup=true">Alex Wong/Getty Images</a></span></figcaption></figure><p>In a <a href="https://www.supremecourt.gov/opinions/19pdf/19-635_o7jq.pdf">7-2 decision, the Supreme Court has ruled</a> that President Donald Trump has no immunity, by virtue of being president, from a state <a href="https://www.nytimes.com/2019/09/16/nyregion/trump-tax-returns-cy-vance.html">grand jury subpoena for his business and tax records</a> in a criminal investigation by the Manhattan district attorney. </p>
<p>“[N]o citizen, not even the president, is categorically above the common duty to produce evidence when called upon in a criminal proceeding,” wrote Chief Justice John Roberts in the majority opinion.</p>
<p>The court rejected the president’s claims that permitting subpoenas from state prosecutors would open the floodgates to prosecutors nationwide, distracting him from his presidential duties. It reiterated what the court had said in a previous case in which President Bill Clinton had tried to avoid giving a deposition, <a href="https://www.oyez.org/cases/1996/95-1853">Clinton v. Jones</a>: The Constitution does not require protecting the president from state grand jury subpoenas. </p>
<p>While a victory for Manhattan District Attorney Cyrus Vance Jr., the ruling does send the case back to the lower courts to determine if the president has any other basis available to any citizen to object. The courts typically respect the scope of grand jury subpoenas, and reject attempts to limit them. </p>
<p>And because grand jury proceedings are secret, the public is unlikely to see any of the subpoenaed documents unless Vance charges Trump with a crime.</p>
<h2>Striking a balance</h2>
<p><a href="https://www.supremecourt.gov/opinions/19pdf/19-715_febh.pdf">Two companion cases</a>, also decided 7-2, involved congressional subpoenas for some of the same Trump financial records. These were a major test of Congress’ ability to exercise oversight of the presidency.</p>
<p>[<em>Get facts about coronavirus and the latest research.</em> <a href="https://theconversation.com/us/newsletters/the-daily-3?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=coronavirus-facts">Sign up for The Conversation’s newsletter.</a>]</p>
<p>The court held that concerns about separation of powers in disputes between the president and Congress require the courts to balance the competing interests of both. Since Congress’ ability to subpoena records is tied to its authority to legislate, its demands for materials from a president must be “no broader,” the court said, than is necessary to aid in enacting legislation – especially where that legislation may affect the presidency.</p>
<p>“The more detailed and substantial the evidence of Congress’ legislative purpose the better,” wrote Roberts.</p>
<p>The court sent the two consolidated cases back to the lower courts to apply this new standard. Upholding Congress’ oversight power will require legislative committees to make a stronger and more specific link between the records they want and legislative proposals than they had made before.</p>
<h2>Congressional oversight limits</h2>
<p>Not since the “Red Scare” subpoena cases from the 1950s-1960s, where Congress conducted hearings that many called political witch hunts against alleged communists, and the Watergate era in the 1970s, when President Nixon claimed through his attorney that he was “as powerful a monarch as Louis XIV, only four years at a time, and is not subject to the processes of any court in the land except the court of impeachment,” has the Supreme Court taken up such far-reaching questions about the ability of Congress to oversee and check the president’s power.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/333505/original/file-20200507-49538-irhbm9.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/333505/original/file-20200507-49538-irhbm9.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/333505/original/file-20200507-49538-irhbm9.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=399&fit=crop&dpr=1 600w, https://images.theconversation.com/files/333505/original/file-20200507-49538-irhbm9.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=399&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/333505/original/file-20200507-49538-irhbm9.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=399&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/333505/original/file-20200507-49538-irhbm9.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=502&fit=crop&dpr=1 754w, https://images.theconversation.com/files/333505/original/file-20200507-49538-irhbm9.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=502&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/333505/original/file-20200507-49538-irhbm9.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=502&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Trump fought congressional demands for financial records.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/president-donald-trump-speaks-as-he-departs-the-white-house-news-photo/1211871661?adppopup=true">Getty/Jim Watson/AFP</a></span>
</figcaption>
</figure>
<p>Congress is investigating whether <a href="https://www.politico.com/news/2020/01/20/trump-businesses-empire-tied-presidency-100496">Trump used his power as president to profit his business</a>, whether he <a href="https://www.law.cornell.edu/uscode/text/5a/compiledact-95-521">accurately reported his finances</a> as all government employees are required to do and whether he accepted gifts from foreign governments without permission from Congress, which is <a href="https://www.britannica.com/story/what-is-the-emoluments-clause">banned by the Constitution</a>. This ban reflected the framers’ concern that no official be subject to foreign intrigue or influence of any kind – a common practice at the time among foreign sovereigns. </p>
<p><a href="https://www.theusconstitution.org/litigation/trump-v-mazars-usa-llp/">Trump v. Mazars</a> related to those investigations. Trump tried to stop his accountants and the bank he deals with from providing information subpoenaed by two House committees – oversight and intelligence.</p>
<p><a href="https://law.justia.com/cases/federal/appellate-courts/cadc/19-5142/19-5142-2019-10-11.html">Trump objected to these subpoenas</a> on the grounds that they lack a legislative purpose and that their true aim was to obtain personal information for political advantage. </p>
<p>The Court of Appeals rejected this argument. It found that the records the congressional committees wanted were relevant to Congress’ legislative duties, and thus the subpoenas were legitimate.</p>
<p>All subpoenas from, and investigations by, Congress <a href="https://theconversation.com/oversight-committee-session-with-michael-cohen-looks-like-an-illegitimate-show-hearing-112253">must have a legislative purpose</a>. By law, Congress has the authority to pursue any “<a href="https://theconversation.com/oversight-committee-session-with-michael-cohen-looks-like-an-illegitimate-show-hearing-112253">subject on which legislation can be had</a>” as well as inquiries into fraud, waste and abuse in government programs. The broad standard for upholding that investigative power is affirmed in the Supreme Court’s ruling in <a href="https://www.oyez.org/cases/1900-1940/273us135">McGrain v. Daugherty</a> in 1927, which established that “the power of inquiry – with process to enforce it – is an essential and appropriate” aspect of how Congress carries out its legislative function.</p>
<p>The case that was consolidated with Mazars was about House committee subpoenas for Trump companies’ bank records from Deutsche Bank and Capital One. As with the Mazars case, Trump tried to stop the banks from handing over the documents.</p>
<p>Those subpoenas were related to reviews by the House Financial Services Committee and the Intelligence Committee of the movement of illicit funds through the global financial system and money laundering. Deutsche Bank, <a href="https://www.nytimes.com/2020/02/04/magazine/deutsche-bank-trump.html">which has loaned large amounts of money to Trump businesses</a>, has already <a href="https://www.reuters.com/article/us-deutsche-mirrortrade-probe/deutsche-bank-fined-for-10-billion-sham-russian-trades-idUSKBN15F1GT">been fined US$10 billion</a> for a money-laundering scheme unrelated to Trump. </p>
<p><a href="https://www.cadc.uscourts.gov/internet/opinions.nsf/20C16C3C5721030C85258490004DE33C/$file/19-5142-1810450.pdf">The Court of Appeals rejected Trump’s argument</a> and said Congress was legitimately entitled to pursue and get the records. </p>
<p>They wrote that the committees’ focus on illegal money laundering was not on any purported misconduct by Trump but instead on whether such activity occurred in the banking industry, the adequacy of banking regulation and the need for legislation to fix any problems – all legitimate oversight goals.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/333506/original/file-20200507-49558-etp823.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/333506/original/file-20200507-49558-etp823.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/333506/original/file-20200507-49558-etp823.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=427&fit=crop&dpr=1 600w, https://images.theconversation.com/files/333506/original/file-20200507-49558-etp823.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=427&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/333506/original/file-20200507-49558-etp823.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=427&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/333506/original/file-20200507-49558-etp823.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=536&fit=crop&dpr=1 754w, https://images.theconversation.com/files/333506/original/file-20200507-49558-etp823.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=536&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/333506/original/file-20200507-49558-etp823.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=536&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">President Bill Clinton fought against being deposed in the Paula Jones sexual discrimination suit; he lost and had to comply.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/this-10-december-image-taken-from-c-span-television-shows-news-photo/51634512?adppopup=true">Getty/AFP</a></span>
</figcaption>
</figure>
<h2>Nixon, Clinton precedents</h2>
<p>None of these cases involved the president <a href="https://www.law.cornell.edu/wex/executive_privilege">claiming executive privilege</a> – the doctrine that keeps confidential many of the communications between the president and his closest advisers. Nor did the cases involve any challenge to the performance of his official duties. </p>
<p>All concerned only his private business activities before he assumed office. The records from before he was president were relevant because he refused to divest from his businesses, raising the concern of whether his official actions once in office conflict with, or appear to conflict with, his existing business interests.</p>
<p>Two previous Supreme Court cases weighed significantly in the court’s decisions in these cases. </p>
<p>One is <a href="https://www.oyez.org/cases/1973/73-1766">United States v. Nixon</a>, which took place during the Watergate scandal, when <a href="https://www.nytimes.com/1974/04/17/archives/jaworski-seeks-court-subpoena-for-nixon-tapes-he-wants-64-of.html">Special Prosecutor Leon Jaworski subpoenaed the tape recordings</a> of conversations between the president and four of his advisers who had been indicted. President Richard Nixon tried to claim executive privilege, saying the recordings of conversations between him and his advisers were confidential and should not be given to the special prosecutor. </p>
<p>The court ruled unanimously that the need for the tapes in the aides’ upcoming trial outweighed the president’s claim of confidentiality. And although no case applying the Nixon case precedent to a congressional subpoena has reached the Supreme Court, the <a href="https://www.washingtonpost.com/news/powerpost/paloma/daily-202/2018/07/24/daily-202-why-u-s-v-nixon-matters-now-more-than-ever/5b5678331b326b1e646954eb/">implication drawn from the case</a> was that if his privilege can be overcome by a subpoena for conversations with his closest aides, business records generated before a president came to office could legitimately be subpoenaed by Congress.</p>
<p>The other case relied on in the Trump financial documents decisions is <a href="https://www.oyez.org/cases/1996/95-1853">Clinton v. Jones</a> in 1997. The case stemmed from a sexual harassment suit against Clinton concerning his conduct before his presidency. Clinton had refused to give a deposition in the case, insisting that it would be a distraction from his duties as president and an invitation to litigants to harass any president while in office with lawsuits.</p>
<p>The <a href="https://www.oyez.org/cases/1996/95-1853">case description on the Supreme Court website</a> asks, “Is a serving President … entitled to absolute immunity from civil litigation arising out of events which transpired prior to his taking office?” </p>
<p>The court’s answer in 1997: No.</p>
<p>On July 9, 2020, the court gave the same response, this time to presidential claims of absolute immunity to grand jury requests for information in a criminal investigation. And it reaffirmed that, while Congress might have to provide better reasons for asking the president to produce records, it has a right to exercise strong oversight of the presidency.</p>
<p><em>Editor’s note: This is an updated version of <a href="https://theconversation.com/historic-power-struggle-between-trump-and-congress-reviewed-by-supreme-court-138154">an article originally published</a> on May 8, 2020.</em></p><img src="https://counter.theconversation.com/content/142432/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Stanley M. Brand does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>
In cases testing the limits of presidential power, the Supreme Court ruled the president has no special protections that exempt him from complying with subpoenas from Congress or state grand juries.
Stanley M. Brand, Distinguished Fellow in Law and Government, Penn State
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/132499
2020-03-13T19:23:16Z
2020-03-13T19:23:16Z
Barr isn’t the first powerful official to defy the courts and risk legitimizing contempt for the law
<figure><img src="https://images.theconversation.com/files/320239/original/file-20200312-111300-8ag48i.jpg?ixlib=rb-1.1.0&rect=23%2C23%2C3952%2C2676&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">What message is Attorney General William Barr sending citizens in defying court order?</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/attorney-general-bill-barr-waves-before-addressing-the-news-photo/1205433393?adppopup=true">Nicholas Kamm/AFP via Getty Images</a></span></figcaption></figure><p>What happens to the rule of law when even the top law enforcement official in the land refuses to obey it? </p>
<p>That’s the question raised in a stinging rebuke of Attorney General William Barr and his Justice Department that came from an unusual source earlier this year: Federal Appeals Court Judge Frank Easterbrook. </p>
<p>Easterbrook <a href="http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2020/D01-23/C:19-1642:J:Easterbrook:aut:T:fnOp:N:2462983:S:0">excoriated Barr and the department</a> for <a href="https://lawandcrime.com/high-profile/appellate-court-calls-out-doj-for-flatly-refusing-to-implement-decision-in-immigration-case/">defying an order issued by his court</a>.</p>
<p>The order in question concerned the case of Jorge Baez-Sanchez, a man living in the U.S. illegally, who was convicted of aggravated battery of a police officer and scheduled to be <a href="https://casetext.com/case/baez-sanchez-v-kolitwenzew">deported</a>. Easterbrook quoted a letter from Attorney General Barr to the Justice Department’s Board of Immigration Appeals saying that the Seventh Circuit decision stopping that deportation was “incorrect” and need not be followed.</p>
<p>Responding to Barr’s assertion, Easterbrook insisted that while executive branch officials “are free to maintain … that our decision is mistaken … until the court reverses itself the Executive Branch must honor that decision.” Easterbrook said the Constitution gives courts the right to make conclusive decisions, which are not subject to disapproval or revision by another branch of government.</p>
<p>As someone who has studied what happens <a href="https://nyupress.org/9780814739853/when-governments-break-the-law/">when public officials violate the law</a>, I find
Barr’s defiance reminiscent of other times in American history when powerful figures challenged the authority of the courts. Such challenges risk undermining the authority of the Constitution in the eyes of everyday Americans.</p>
<h2>Challenging courts</h2>
<p>The courts’ authority to interpret the law is derived from an 1803 Supreme Court decision, <a href="https://supreme.justia.com/cases/federal/us/5/137/#tab-opinion-1958607">Marbury v. Madison</a>, not from the Constitution itself. <a href="https://engagedscholarship.csuohio.edu/cgi/viewcontent.cgi?article=1065&context=fac_articles">William Marbury</a>, who had been appointed a justice of the peace by outgoing President John Adams, was denied the official commission for that office by <a href="https://www.biography.com/us-president/james-madison">James Madison</a>, secretary of state in the incoming Jefferson administration. Marbury asked the Supreme Court to order Madison to deliver his commission. The court held that the <a href="https://www.loc.gov/rr/program/bib/ourdocs/judiciary.html">Judiciary Act of 1789</a>, which Marbury said gave it the power to do so, violated the Constitution. As a result, it could not provide the relief Marbury sought.</p>
<p>And, since that decision, from time to time political leaders have <a href="https://www.nytimes.com/1861/06/23/archives/jefferson-on-the-supreme-court.html">questioned the courts’ authority</a>. </p>
<p>President Andrew Jackson mounted one of the most important of those challenges when he refused to enforce <a href="https://supreme.justia.com/cases/federal/us/31/515/#tab-opinion-1936719">an 1832 Supreme Court ruling</a> that the states could not regulate Native American land.</p>
<p>After that ruling, Jackson <a href="https://www.thirteen.org/wnet/supremecourt/antebellum/history2.html">took a swipe at</a>, the court’s chief justice: “John Marshall has made his decision, now let him enforce it.”</p>
<p>Moreover, that same year, Jackson vetoed an act of Congress granting a charter for the Second Bank of the United States on the grounds that the bank was unconstitutional. He did so despite an 1819 <a href="https://supreme.justia.com/cases/federal/us/17/316/#tab-opinion-1918127">Supreme Court decision</a> affirming its constitutionality.</p>
<p>In his veto message, Jackson invoked the separation of powers and <a href="https://www.thirteen.org/wnet/supremecourt/antebellum/sources_document11.html">said</a>, “The opinion of the judges has no more authority over Congress than the opinion of Congress has over the judges, and on that point the president is independent of both. The authority of the Supreme Court must not, therefore, be permitted to control the Congress or the Executive when acting in their legislative capacities, but to have only such influence as the force of their reasoning may deserve.”</p>
<p>Jackson’s effort to stop the National Bank <a href="https://archive.org/details/lifeandrewjacks00partgoog/page/n5/mode/2up">ultimately prevailed</a> when it was replaced by an independent federal treasury system. </p>
<h2>Blocking Brown</h2>
<p>A little more than a century later, in the immediate aftermath of the 1954 landmark school desegregation ruling, <a href="https://supreme.justia.com/cases/federal/us/347/483/#tab-opinion-1940809">Brown v. Board of Education</a>, Southern political leaders, including members of Congress, followed Jackson’s example. </p>
<p>In 1956 they issued a “<a href="http://americanradioworks.publicradio.org/features/marshall/manifesto.html">Southern Manifesto</a>,” which called Brown a “clear abuse of judicial power.” The manifesto <a href="https://www.naacpldf.org/ldf-celebrates-60th-anniversary-brown-v-board-education/southern-manifesto-massive-resistance-brown">commended states</a> for resisting forced integration of schools and claimed states had the right to defy federal court orders that they regarded as incorrect. </p>
<p>One of the most blatant examples of such resistance occurred in <a href="http://americanradioworks.publicradio.org/features/marshall/littlerock1.html">Little Rock, Arkansas, in 1957</a>. Responding to a federal district court which ordered the immediate integration of the schools, Governor Orval Faubus called out the National Guard to stop black children from attending Central High School.</p>
<p>When lawyers for those black children sought help from the United States Supreme Court, the court – anticipating Easterbrook’s response to Barr – <a href="https://supreme.justia.com/cases/federal/us/358/1/#tab-opinion-1942101">rebuked the Arkansas governor</a> and reaffirmed the desegregation order. </p>
<p>Justice Felix Frankfurter wrote that “Every act of government may be challenged by an appeal to law, as finally pronounced by this Court. Even this Court has the last say only for a time. Being composed of fallible men, it may err. But revision of its errors must be by orderly process of law.”</p>
<p>And, despite his own reservations about the Brown decision, President Dwight Eisenhower <a href="http://historymatters.gmu.edu/d/6335/">sent federal troops to Little Rock</a> to enforce the court order.</p>
<h2>Resisting rights</h2>
<p>In 2015, a deeply divided Supreme Court <a href="https://www.oyez.org/cases/2014/14-556">ruled</a> that the Constitution protected the right of same-sex couples to marry.</p>
<p><a href="https://www.politico.com/magazine/story/2015/06/gay-marriage-legal-backlash-119468">Opposition to the decision</a> came quickly. Some local officials <a href="https://www.cnn.com/2015/06/30/us/same-sex-marriage-supreme-court-ruling-holdouts/index.html">announced</a> that, because same-sex unions violated their religious beliefs, they would not issue marriage licenses to gay and lesbian couples.</p>
<p>One of the resisters, Katie Lang, county clerk of Hood County, Texas, <a href="https://www.cnn.com/2015/06/30/us/same-sex-marriage-supreme-court-ruling-holdouts/index.html">said</a> that the Supreme Court had “fabricated a new constitutional right” which could not “diminish, overrule, or call into question the First Amendment rights to free exercise of religion that formed the first freedom in the Bill of Rights in 1791.”</p>
<p>She was supported by Texas Attorney General Ken Paxton, who <a href="https://www.theatlantic.com/politics/archive/2015/07/south-gay-marriage-clarence-thomas/398936/">told</a> county clerks and judges that they did not have to issue same-sex marriage licenses or conduct wedding ceremonies “if they have religious objections to doing so.”</p>
<h2>Courting contempt</h2>
<p>Separation of powers, states’ rights and religious freedom each have been invoked as a justification for official noncompliance with court orders. Attorney General Barr <a href="https://www.acslaw.org/expertforum/the-barr-memo-and-the-imperial-presidency/">adds his broad view of executive power</a> to that list of reasons. </p>
<p>Yet no matter what the reason, any time government officials defy the courts, they undermine the Constitution’s authority and send a powerful message to citizens. Today many Americans seem ready to heed that message, with a quarter of the respondents to national surveys now <a href="https://www.publicpolicypolling.com/wp-content/uploads/2017/09/PPP_Release_National_21017.pdf">saying</a> that a president should be able to disobey court decisions with which he disagrees.</p>
<p>While the rule of law survived Jackson, massive resistance in the South, and defiance of the Supreme Court’s gay marriage decision, there is something particularly perilous when the attorney general defies the courts. As a 1980 opinion of the department’s Office of Legal Counsel <a href="https://www.justice.gov/olc/opinion/attorney-general%E2%80%99s-duty-defend-and-enforce-constitutionally-objectionable-legislation">noted</a>, it is his responsibility “to defend and enforce both the Acts of Congress and the Constitution.”</p>
<p>That danger is compounded at a time when the president repeatedly expresses <a href="https://time.com/5461827/donald-trump-judiciary-chief-justice-john-roberts/">his view</a> that judges are really nothing more than partisans in black robes and derides them and their decisions. </p>
<p>Supreme Court Justice Louis Brandeis correctly <a href="https://supreme.justia.com/cases/federal/us/277/438/#tab-opinion-1932307">observed</a> almost a century ago that, “In a government of laws, the existence of the government will be imperiled if it fails to observe the law scrupulously. If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.”</p>
<p>[<em>Deep knowledge, daily.</em> <a href="https://theconversation.com/us/newsletters?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=deepknowledge">Sign up for The Conversation’s newsletter</a>.]</p><img src="https://counter.theconversation.com/content/132499/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Austin Sarat does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>
Could defiance of court orders at the highest level undermine the Constitution’s authority in the eyes of American citizens?
Austin Sarat, Professor of Jurisprudence and Political Science, Amherst College
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/133089
2020-03-12T08:22:16Z
2020-03-12T08:22:16Z
What Lesotho’s constitution says about immunity for a sitting prime minister
<figure><img src="https://images.theconversation.com/files/318902/original/file-20200305-106584-17qcn7y.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Lesotho Prime Minister Tom Thabane and his new wife, Maesaiah, at the Magistrate Court in Maseru.
</span> <span class="attribution"><span class="source">AFP-Getty Images/Molise Molise</span></span></figcaption></figure><p>The <a href="https://lesotholii.org/ls/legislation/num-act/1993/1">constitution of Lesotho</a> has come under international scrutiny over an unusual question: does it give the prime minister immunity from prosecution? </p>
<p>Previously, constitutional questions that attracted attention in relation to the tiny kingdom landlocked by South Africa orbited around <a href="https://www.eisa.org.za/pdf/JAE17.2Nyane.pdf">elections</a>, the appointment and <a href="http://lestimes.com/nss-officers-challenge-their-unlawful-dismissals/">dismissal of security chiefs</a> and the dissolution of government. </p>
<p>The question of immunity has arisen against an intriguing backdrop. In January, Lesotho police announced that they had concluded investigations into the murder of Lipolelo Thabane (58), the estranged wife of Prime Minister Tom Thabane (89). She was shot dead <a href="https://www.timeslive.co.za/news/africa/2017-06-15-estranged-wife-of-lesothos-incoming-pm-shot-dead/">in 2017</a>, two days before his inauguration as prime minister. He was, at the time, involved in a relationship with the woman who he was later to marry. </p>
<p>In February his new wife, Maesaiah Thabane (42), was <a href="https://www.bbc.com/news/world-africa-51387964">charged</a> with the murder of Lipolelo Thabane. Then, in a surprising turn of events, Thabane was later also charged for the murder. </p>
<p>The expectation was that when he <a href="https://ewn.co.za/2020/02/24/lesotho-pm-thabane-appears-in-maseru-court-after-friday-no-show">appeared</a> at the Maseru Magistrate Court he would be charged after which he would have his say on the validity or otherwise of the charge. </p>
<p>But this didn’t happen. </p>
<p>Instead, his lawyer argued that Thabane could not be prosecuted because, under the country’s constitution, <a href="https://www.bbc.com/news/world-africa-51615327">he enjoyed legal immunity</a> as a sitting prime minister. He argued that the issue be referred to the High Court to decide on the immunity issue. In terms of the country’s constitution (Section 128(1)), this issue can only be settled by the High Court. </p>
<p>The magistrate <a href="https://ewn.co.za/2020/02/24/decision-to-charge-tom-thabane-now-in-the-hands-of-the-high-court">agreed</a> to refer the matter to the High Court. When adjudicating on constitutional matters, the High Court sits as a constitutional court with a panel of no less that three judges. However, the High Court’s decisions can be sent to the Court of Appeal for determination. The Court of Appeal is the final arbiter. </p>
<h2>Lesotho’s constitutional framework</h2>
<p>Lesotho’s constitution is a prototype of liberal constitutions bestowed on a host of African countries after they gained independence from Britain. In Lesotho’s case, it <a href="https://www.constituteproject.org/constitution/Lesotho_1998.pdf">adopted a new constitution in 1993</a>. This document was a mirror-image of the constitution adopted in 1966 after independence. </p>
<p>One of the key principles of liberal constitutionalism is that of equality in general, and equality before the law in particular. This is reflected in Section 19 of the kingdom’s constitution. Furthermore, Lesotho’s constitution provides for equality in several other sections such as sections 12, 18 and 26.</p>
<p>In its broadest sense, equality before the law subjects all people to the law, regardless of status. But, as a relic of the <a href="https://www.civilservant.org.uk/the_westminster_model-homepage.html">Westminster constitutional design</a>, Lesotho’s constitution still retains the antiquated doctrine of monarchical immunity. It posits that the King, or any person exercising the powers of his office, will be immune from criminal prosecution for any acts done by him in a <a href="https://lesotholii.org/ls/legislation/num-act/1993/1">private or official capacity</a>.</p>
<p>But there is no provision in the constitution that extends legal immunity to the prime minister or any other person. This is the case despite the fact that most of the old monarchical prerogatives – like the dissolution and <a href="https://www.parliament.uk/about/how/occasions/prorogation/">prorogation</a> of parliament – have effectively shifted to the prime minister.</p>
<p>Therefore it is apparent that in terms of the constitution, only the King enjoys legal immunity. </p>
<p>As such, in view of the doctrine of equality before the law, the exception granted to the King will be interpreted very narrowly and restrictively by the High Court. It will clearly be an affront to the doctrine of equality if the exception could be interpreted broadly. </p>
<h2>Colonial legacy</h2>
<p>One of the enduring legacies of British colonialism in Africa is that when the newly-independent countries drafted their new constitutions, most of them retained the antiquated notion that</p>
<blockquote>
<p><a href="https://www.cambridge.org/core/journals/journal-of-british-studies/article/doing-no-wrong-law-liberty-and-the-constraint-of-kings/82CF7F0636DCD8DBA16DD67D9DD1CAD4">the King can do no wrong</a>.</p>
</blockquote>
<p>This notion has been enshrined in many African constitutions. </p>
<p>In the decades since countries became independent, a number of African countries have <a href="https://repository.up.ac.za/bitstream/handle/2263/57942/Fombad_Africa_2012.pdf?sequence=1&isAllowed=y">extended this right to protect presidents</a>, as heads of states and governments, against legal suits, albeit in varying degrees. </p>
<p>The modern <a href="https://brill.com/view/journals/ajls/5/2/article-p91_1.xml?body=pdf-22559">justification</a> for legal immunity for heads of government is that it is undesirable for a head of state to be hauled before the courts, while he is supposed to focus on matters of public interest. </p>
<p>The proponents of this view also contend that it borders on offending the principle of separation of powers when the judiciary is seen to be “tossing” the head of another equal branch of government before the courts of law.</p>
<p>These justifications for immunity notwithstanding, the <a href="https://brill.com/view/journals/ajls/5/2/article-p91_1.xml?body=pdf-22559">emerging wave of scholarship in Africa</a> is that legal immunity for heads of government is an affront to everything that modern constitutionalism stands for.</p>
<p>These include accountability, rule of law, equality, respect for human rights, constitutionality and even separation of powers.</p>
<h2>Looking to the future</h2>
<p>It remains to be seen whether Lesotho’s High Court – sitting as the Constitutional Court – will uphold the prime minister’s immunity argument. </p>
<p>What is palpably clear, though, is that in terms of Lesotho’s constitution the legal immunity enjoyed by the King does not extend to the prime minister. </p>
<p>If the court decides to uphold his claim, it will be for reasons other than the express provisions of the constitution.</p><img src="https://counter.theconversation.com/content/133089/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Hoolo 'Nyane does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>
The doctrine of equality is ingrained both in theory and in the express provisions of Lesotho’s constitution.
Hoolo 'Nyane, Head of Department, Public and Environmental Law Department, University of Limpopo
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/132501
2020-03-09T12:22:10Z
2020-03-09T12:22:10Z
From border security to climate change, national emergency declarations raise hard questions about presidential power
<figure><img src="https://images.theconversation.com/files/319139/original/file-20200306-118913-cc1l7d.jpg?ixlib=rb-1.1.0&rect=0%2C0%2C4031%2C3024&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Global Climate Strike NYC in New York, Sept. 20, 2019.</span> <span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Global-Climate-Strike-And-Rally/fdf71056a5d34c308e0aca3f639fbd44/90/0">Rainmaker Photo/MediaPunch /IPX via AP Photo</a></span></figcaption></figure><p>As wildfires, storms and other climate-driven disasters grow larger and more damaging, climate change is a <a href="https://www.youtube.com/watch?v=1kIUyCczgf8">major concern for many Democratic voters</a>, who are in the midst of a primary fight that has come down to two major candidates: Bernie Sanders and Joe Biden. Both candidates say climate change would be one of their top priorities as president – but there’s an important difference between their approaches.</p>
<p>Sanders has pledged to <a href="https://berniesanders.com/issues/green-new-deal/">declare climate change a national emergency</a> and use executive power to lead “<a href="https://berniesanders.com/issues/green-new-deal/">a ten-year, nationwide mobilization</a>” to remake the U.S. economy. </p>
<p>Biden has also proposed an ambitious plan for <a href="https://joebiden.com/Climate/">“achieving a 100% clean energy economy</a>,” but would rely on legislation and regulation to achieve many of his goals.</p>
<p>As a legal scholar <a href="https://scholar.google.com/citations?user=SHAqMV0AAAAJ&hl=en">specializing in energy and the environment</a>, I believe that voters should consider this distinction carefully. </p>
<p>Presidential emergency powers could provide useful tools for addressing climate change, but taking this route sets an important precedent. As I see it, if presidents increasingly make free use of emergency powers to achieve policy goals, this approach could become the new normal – with a serious potential for abuse of power and ill-considered decisions.</p>
<figure>
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<figcaption><span class="caption">President Trump declared a national emergency on border security in 2019 in order to redirect funds from other programs to wall construction.</span></figcaption>
</figure>
<h2>Today, the border; tomorrow, the climate</h2>
<p>President Trump <a href="https://www.whitehouse.gov/presidential-actions/presidential-proclamation-declaring-national-emergency-concerning-southern-border-united-states/">declared a national emergency on border security</a> on Feb. 15, 2019, after Congress <a href="https://www.vox.com/policy-and-politics/2019/2/14/18224457/congress-border-security-deal">refused to fund</a> most of his US$5.7 billion request for border wall construction. As Trump’s intent became clear, Republican Sen. Marco Rubio <a href="https://www.vox.com/policy-and-politics/2019/1/11/18178438/national-emergency-marco-rubio-precedent-democrats-climate">warned</a> that “tomorrow the national security emergency might be, you know, climate change.” </p>
<p>Rubio was right to take this possibility seriously. In my view, declaring a climate emergency would probably be legal, and would unlock provisions in many laws that authorize the president or subordinates to <a href="https://www.brennancenter.org/our-work/analysis-opinion/trumps-hidden-powers">take specific actions under a national emergency declaration</a>. </p>
<p>Like Trump, a Democratic president might use the power to divert military construction funds to other projects, such as renewable energy projects for military bases. A Democrat could also use trade measures – for example, restricting imports from countries with high carbon emissions, or imposing a carbon fee on goods from those countries to level the playing field.</p>
<p>Another potential action would be ordering businesses to produce certain goods. Just as the Trump administration reportedly has considered using a law dating from the 1950s to <a href="https://www.nytimes.com/2020/02/28/us/politics/trump-coronavirus.html?action=click&module=Spotlight&pgtype=Homepage">expand production of medical supplies for treating coronavirus patients</a>, a Democrat could use the same power to boost battery or electrical vehicle production. </p>
<p>After declaring an emergency, the president could provide loan guarantees to critical industries in order to help finance goals such as expanding renewable energy production. Oil and gas leases on federal lands and in federal waters contain clauses that allow the Interior Department to <a href="https://www.govinfo.gov/content/pkg/USCODE-1994-title43/pdf/USCODE-1994-title43-chap28-subchapIII_2-sec1341.pdf">suspend them during national emergencies</a>. Declaring a national emergency would also enable the president to limit U.S. oil exports to other countries.</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1148756419447021568"}"></div></p>
<h2>Is it legal?</h2>
<p>Emergency powers are only available assuming climate change qualifies as an emergency. The law empowering presidents to declare national emergencies doesn’t define the term.</p>
<p>Among recent precedents, President Obama <a href="https://obamawhitehouse.archives.gov/the-press-office/2015/04/01/executive-order-blocking-property-certain-persons-engaging-significant-m">declared a cybersecurity emergency</a> on April 1, 2015 that is still in effect, and Trump has declared that steel imports are <a href="https://www.whitehouse.gov/presidential-actions/presidential-proclamation-adjusting-imports-steel-united-states/">an urgent threat to national security</a>. </p>
<p>It’s not hard to make a case that climate change is an equally critical problem. Recent science indicates that major action will be needed in the next decade to <a href="https://www.ipcc.ch/sr15/">hold warming below extreme levels</a>. There’s also clear support for the idea that climate change is <a href="https://theconversation.com/a-military-perspective-on-climate-change-could-bridge-the-gap-between-believers-and-doubters-128609">a major national security threat</a>. </p>
<p>To date, courts have never overturned a presidential emergency declaration, and I believe a climate emergency seems unlikely to be an exception. Legal challenges to President Trump’s border security declaration <a href="https://www.reuters.com/article/us-usa-immigration-court/u-s-appeals-court-stays-judges-ruling-blocking-military-funds-for-border-wall-idUSKBN1Z806H">so far have failed</a>.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/319144/original/file-20200306-64601-hz4yt1.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/319144/original/file-20200306-64601-hz4yt1.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/319144/original/file-20200306-64601-hz4yt1.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=450&fit=crop&dpr=1 600w, https://images.theconversation.com/files/319144/original/file-20200306-64601-hz4yt1.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=450&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/319144/original/file-20200306-64601-hz4yt1.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=450&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/319144/original/file-20200306-64601-hz4yt1.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=566&fit=crop&dpr=1 754w, https://images.theconversation.com/files/319144/original/file-20200306-64601-hz4yt1.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=566&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/319144/original/file-20200306-64601-hz4yt1.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=566&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Border wall construction in Organ Pipe Cactus National Monument, Ariz.</span>
<span class="attribution"><a class="source" href="https://www.biologicaldiversity.org/resourcespace/pages/view.php?ref=13201&k=b91f42ce65&search=&offset=0&order_by=relevance&sort=ASC&archive=">Laiken Jordahl/Center for Biological Diversity</a>, <a class="license" href="http://creativecommons.org/licenses/by/4.0/">CC BY</a></span>
</figcaption>
</figure>
<h2>Frustration with gridlock</h2>
<p>Emergency actions bypass bureaucracy and minimize the potential for litigation, compared to the cumbersome regulatory process. That makes them fast and decisive. They also place responsibility squarely on the president, which increases political accountability. There’s no question of who to blame if you don’t like the border wall – or emergency climate actions. </p>
<p>Unlike legislation, an emergency action does not have to move through Congress. And unlike federal regulations, there is no requirement for transparency or public comment, and less room for judicial oversight. </p>
<p>That can speed things up but it also makes major mistakes more likely. The <a href="https://www.history.com/this-day-in-history/fdr-signs-executive-order-9066">internment of Japanese Americans</a> during World War II is a vivid example. </p>
<p>In addition, once an emergency is declared, a president may be able to use emergency powers in laws that aren’t even related to that emergency. “Even if the crisis at hand is, say, a nationwide crop blight, the president may activate the law that allows the secretary of transportation to <a href="https://www.theatlantic.com/magazine/archive/2019/01/presidential-emergency-powers/576418/">requisition any privately owned vessel at sea</a>,” writes Elizabeth Goiten, director of the Brennan Center’s <a href="https://www.brennancenter.org/our-work/policy-solutions/liberty-national-security-election-agenda-candidates-activists-and">Liberty and National Security Program</a>.</p>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/319121/original/file-20200306-118904-1ye5n7x.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/319121/original/file-20200306-118904-1ye5n7x.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/319121/original/file-20200306-118904-1ye5n7x.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/319121/original/file-20200306-118904-1ye5n7x.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/319121/original/file-20200306-118904-1ye5n7x.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/319121/original/file-20200306-118904-1ye5n7x.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/319121/original/file-20200306-118904-1ye5n7x.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/319121/original/file-20200306-118904-1ye5n7x.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Bernie Sanders’ climate plan would declare a national climate emergency, while Joe Biden’s relies on executive orders, legislation and regulation.</span>
<span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Election-2020-Debate/fc23b68484b6453181a452909e4fe796/1/0">AP Photo/Patrick Semansky</a></span>
</figcaption>
</figure>
<p>There’s no question that legislating is difficult and time-consuming. It requires the agreement of both houses of an increasingly polarized Congress. So long as the filibuster rule is in effect, it needs 60 votes in the Senate, which would require some Republican support even if Democrats regain a majority in the 2020 elections. </p>
<p>Americans seem <a href="https://www.people-press.org/2018/11/15/public-expects-gridlock-deeper-divisions-with-changed-political-landscape/">increasingly frustrated</a> by government’s inability to take bold action. If conventional means of policy change remain clogged, some people may find the national emergency approach all but irresistible. </p>
<p>Despite the appeal of breaking through gridlock, there are also real dangers to invoking emergency powers. Normalizing their use could make these expanded presidential powers hard to confine. </p>
<p>Congress has the power to nullify emergency declarations by passing a resolution of disapproval, but this has proved ineffective in practice. For instance, despite bipartisan support, Congress has <a href="https://www.politico.com/story/2019/09/25/senate-vote-national-emergency-border-wall-1510795">failed to muster veto-proof margins</a> for two resolutions overturning Trump’s border emergency, which the administration has used to divert billions of dollars to wall construction.</p>
<p>As Justice Robert Jackson wrote in <a href="https://www.law.cornell.edu/supremecourt/text/343/579">Youngstown Sheet & Tube Company v. Sawyer</a> – a famous 1952 Supreme Court decision in which the court held that President Truman did not have the constitutional authority to nationalize the U.S. steel industry during the Korean War – emergency powers “afford a ready pretext for usurpation,” and the potential for using those powers “can tend to kindle emergencies” to justify their use. </p>
<p>In my view, those risks may be worth taking only if all other avenues for dealing with an urgent problem like climate change are blocked. It remains to be seen whether that precondition will be met.</p>
<p>[<em>You’re smart and curious about the world. So are The Conversation’s authors and editors.</em> <a href="https://theconversation.com/us/newsletters?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=youresmart">You can read us daily by subscribing to our newsletter</a>.]</p><img src="https://counter.theconversation.com/content/132501/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Daniel Farber does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>
Declaring an issue is a national emergency lets presidents act quickly and with few constraints. But once they get this kind of power, it’s hard to take it back – and it can produce bad policies.
Daniel Farber, Professor of Law, University of California, Berkeley
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/129485
2020-01-27T15:26:28Z
2020-01-27T15:26:28Z
After the trial’s over, President Trump’s impeachment battles could determine who holds real power in the US government
<figure><img src="https://images.theconversation.com/files/311873/original/file-20200124-81352-ohh81e.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Cases related to the Trump impeachment may end up at the Supreme Court.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/the-us-supreme-court-is-pictured-january-9-2017-in-news-photo/631355218?adppopup=true">ZACH GIBSON/AFP via Getty Images</a></span></figcaption></figure><p>The legal and constitutional battles sparked by President Trump’s behavior could affect how the U.S. government works for generations, long after the impeachment trial is over. </p>
<p>After the last Senate staffer turns out the lights, major questions remain to be decided outside of the Capitol about the limits of presidential power, the willingness of courts to decide political questions and the ability of Congress to exercise effective oversight and hold a president accountable. </p>
<p>Here are three of those questions.</p>
<h2>What are the limits of presidential power?</h2>
<p>First, the aggressive exercise of executive power by Trump has put this power under court scrutiny. </p>
<p>Trump’s vow to “fight all the subpoenas” breaks from the traditional process – negotiation and accommodation – that previous presidents have used to resolve disputes between branches of the government. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/311874/original/file-20200124-81341-5zbfgz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/311874/original/file-20200124-81341-5zbfgz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/311874/original/file-20200124-81341-5zbfgz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/311874/original/file-20200124-81341-5zbfgz.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/311874/original/file-20200124-81341-5zbfgz.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/311874/original/file-20200124-81341-5zbfgz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/311874/original/file-20200124-81341-5zbfgz.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/311874/original/file-20200124-81341-5zbfgz.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">President Trump in the Roosevelt Room of the White House on Jan. 9, 2020.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/president-donald-trump-looks-on-during-an-event-to-unveil-news-photo/1192749953?adppopup=true">Drew Angerer/Getty Images</a></span>
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</figure>
<p>As a result, several cases are currently pending, including a legal challenge brought by the House Judiciary Committee <a href="https://thehill.com/homenews/house/476651-house-lawyers-press-court-to-enforce-subpoena-against-trump-aide">to compel the testimony of Don McGahn</a>, Trump’s former White House counsel. The House had sought McGahn’s testimony <a href="https://www.usatoday.com/story/news/politics/2020/01/03/house-appeals-court-hearing-compel-don-mcgahn-testimony-trump-impeachment/2740779001/">about Trump’s alleged obstruction of justice</a> in the investigation of special counsel Robert Mueller into Russian election interference. </p>
<p>McGahn challenged the subpoena issued by the Judiciary Committee on the <a href="https://www.lawfareblog.com/executive-privilege-and-compelled-testimony-presidential-advisers-don-mcgahns-dilemma">grounds of absolute immunity</a>, arguing that he – a close aide to the president, and a member of the co-equal executive branch – need not appear before Congress to answer questions at all. </p>
<p>U.S. District Judge <a href="https://www.politico.com/f/?id=0000016e-a4c4-d442-a5ef-fee4e04c0000">Ketanji Brown Jackson rejected this argument</a>, saying that while McGahn could possibly assert executive privilege about individual questions, he could not refuse to appear altogether. </p>
<p>Executive privilege is not specified in the Constitution. But the Supreme Court has <a href="https://fas.org/sgp/crs/secrecy/R42670.pdf">recognized that a president may shield from disclosure</a> certain sensitive information and communications to encourage candid advice from aides and to protect national security and other sensitive information. </p>
<p>“However busy or essential a presidential aide might be, and whatever their proximity to sensitive domestic and national-security projects, the President does not have the power to excuse him or her from taking an action that the law requires,” Judge Jackson wrote.</p>
<p>The case is now on appeal, and during oral argument in early January, the committee’s lawyer said that <a href="https://thehill.com/homenews/house/476651-house-lawyers-press-court-to-enforce-subpoena-against-trump-aide">additional impeachment articles could be filed</a> based on McGahn’s testimony. </p>
<p><a href="https://www.oyez.org/cases/1973/73-1766">In 1974, in United States v. Nixon</a>, however, the court stated that the privilege is not absolute, and must yield in some circumstances, such as a criminal investigation. Absolute immunity, which courts have not recognized, goes even further than executive privilege, permitting an aide to refuse to appear altogether.</p>
<p>Regardless of the outcome of the case, a court decision in the McGahn case will provide clarity that will weaken or strengthen the negotiating position of future presidents. </p>
<h2>Should courts step into political conflicts?</h2>
<p>Some of the cases still pending could determine how much power courts have in impeachment matters. </p>
<p><a href="https://theconversation.com/courts-have-avoided-refereeing-between-congress-and-the-president-but-trump-may-force-them-to-wade-in-128269">Under what is known as the “political question doctrine,” courts typically avoid what are known as “political questions”</a> that involve branches of government in conflict. They have dismissed most cases that present such questions, deferring to the other branches to resolve them. In the more than 200 years between 1789 and 2017, when Trump took office, <a href="https://theconversation.com/courts-have-avoided-refereeing-between-congress-and-the-president-but-trump-may-force-them-to-wade-in-128269">courts heard only five cases</a> for presidential claims of executive privilege in response to a congressional subpoena.</p>
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<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/courts-have-avoided-refereeing-between-congress-and-the-president-but-trump-may-force-them-to-wade-in-128269">Courts have avoided refereeing between Congress and the president, but Trump may force them to wade in</a>
</strong>
</em>
</p>
<hr>
<p>In the 1993 case of <a href="https://www.oyez.org/cases/1992/91-740">Nixon v. United States</a> (no, not that Nixon, U.S. District Judge Walter Nixon), the Supreme Court held that a federal judge could not appeal to a court seeking to overturn his conviction at a Senate impeachment trial. The Constitution, the court ruled, gives the Senate the sole power to try all impeachments. </p>
<p>Concurring opinions in the Nixon case, however, left open the possibility of an appeal to courts for an impeachment trial that was conducted “arbitrarily,” that is, lacking procedural fairness.</p>
<p>Trump’s personal lawyer, Rudolph Giuliani, suggested at one time that Trump <a href="https://www.thedailybeast.com/rudy-giuliani-chief-justice-can-dismiss-trumps-impeachment">file a court challenge to dismiss</a> the articles of impeachment. </p>
<p>While that seems unlikely in light of the Nixon case, the political question doctrine is likely to figure in other pending cases, such the effort by Congress to seek grand jury material from Mueller’s investigation. </p>
<p>During oral argument earlier this month in the case over grand jury material pending before the court of appeals, one of the judges expressed reluctance to decide the case because it involves a political question.</p>
<p>As the courts decide the cases involving McGahn’s testimony, the Mueller grand jury material, and any challenge arising from Trump’s impeachment trial, the contours of the political question doctrine will become more defined.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/311877/original/file-20200124-81362-1ym30r.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/311877/original/file-20200124-81362-1ym30r.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/311877/original/file-20200124-81362-1ym30r.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=425&fit=crop&dpr=1 600w, https://images.theconversation.com/files/311877/original/file-20200124-81362-1ym30r.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=425&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/311877/original/file-20200124-81362-1ym30r.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=425&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/311877/original/file-20200124-81362-1ym30r.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=535&fit=crop&dpr=1 754w, https://images.theconversation.com/files/311877/original/file-20200124-81362-1ym30r.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=535&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/311877/original/file-20200124-81362-1ym30r.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=535&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Will a dispute about impeachment trial testimony by former presidential aide John Bolton, pictured here, end up before Chief Justice John Roberts?</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/former-u-s-national-security-advisor-john-bolton-speaks-at-news-photo/1178121134?adppopup=true">Win McNamee/Getty Images</a></span>
</figcaption>
</figure>
<h2>Will the executive, legislative and judicial branches collide?</h2>
<p>In the impeachment’s aftermath, the extent of Congress’ ability to serve as a valid check on presidential power will become more clear. </p>
<p>The framers of the Constitution envisioned <a href="https://www.loc.gov/law/help/parliamentary-oversight/unitedstates.php">a Congress that would provide oversight over a president</a>. They did not count on members of Congress having more loyalty to their party than to their institution. </p>
<p>If the Senate were to acquit the president in the face of additional incriminating evidence, the institution’s ability to serve as a credible check on future presidents could be damaged. </p>
<p>The impeachment trial itself could cause all three branches to collide. Former national security adviser <a href="https://thehill.com/homenews/administration/476938-bolton-says-he-would-testify-in-senate-impeachment-trial-if">John Bolton has publicly stated</a> that he would testify if subpoenaed by the Senate. Trump has said he would <a href="https://www.reuters.com/article/us-usa-trump-impeachment-bolton-analysis/trump-will-have-hard-time-blocking-potential-bolton-trial-testimony-idUSKBN1ZM1PA">he would invoke executive privilege to block</a> Bolton’s testimony. </p>
<p>If the Senate wanted to compel the testimony, the presiding Chief Justice John Roberts would decide the standoff between the president and the Senate. If he were to rule in favor of the Senate and order Bolton to testify, could President Trump appeal that decision to the Supreme Court? Would the Court be willing to decide such a political question about impeachment? Would the Senate arrest and jail a witness for refusing to testify? </p>
<p>There are no rules for what happens then. </p>
<p>Throughout his presidency, Trump has been a disrupter of normal procedures. It appears that he will continue that trend even after impeachment. </p>
<p>[ <em>Like what you’ve read? Want more?</em> <a href="https://theconversation.com/us/newsletters?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=likethis">Sign up for The Conversation’s daily newsletter</a>. ]</p><img src="https://counter.theconversation.com/content/129485/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Barbara L. McQuade does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>
President Trump’s likely to be acquitted by the Senate in his impeachment trial. But the impeachment’s effects won’t end until lawsuits are resolved.
Barbara L. McQuade, Professor from Practice, University of Michigan
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/129313
2020-01-08T12:17:18Z
2020-01-08T12:17:18Z
Congressional Republicans abandon constitutional heritage and Watergate precedents in defense of Trump
<figure><img src="https://images.theconversation.com/files/308884/original/file-20200107-123411-1datbix.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Republican lawmakers are seen as Speaker of the House Nancy Pelosi (D-Calif.) oversees a vote on the second article of impeachment against President Donald Trump in the House of Representatives, Dec. 18, 2019.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/republican-lawmakers-are-seen-as-speaker-of-the-house-nancy-news-photo/1189645530?adppopup=true">Matt McClain/The Washington Post via Getty Images</a></span></figcaption></figure><p>Once, not so long ago, congressional Republicans were impeachment’s constitutional stalwarts. </p>
<p>They stood up for the House of Representatives’ “<a href="https://www.archives.gov/founding-docs/constitution-transcript">sole power of impeachment</a>,” a power granted in the Constitution, including the right to subpoena witnesses and evidence. Even when the president under investigation was a Republican. Even when the Republican political base threatened to turn against them. </p>
<p>But that was when the president was Richard Nixon, not Donald Trump.</p>
<h2>Impeachment: 1974 vs. today</h2>
<p>I wrote a <a href="https://www.upress.virginia.edu/title/4886">book on the origins of Watergate</a>, so I get asked a lot how Trump’s impeachment inquiry compares with Nixon’s.</p>
<p>Much remains the same, especially the partisan attacks. In 1974, as today, Republicans complained that the impeachment inquiry was too <a href="https://twitter.com/FatalPolitics/status/1207079291889971200">secret</a>, too <a href="https://twitter.com/FatalPolitics/status/1207053144389087232">leaky</a> and a violation of presidential <a href="https://www.nytimes.com/1974/07/16/archives/a-secondary-defense-of-nixon-ziegler-presents-thesis.html">rights</a>. Both Team Nixon and Team Trump called their respective inquiries a “<a href="https://twitter.com/retronewsnow/status/975178659270144001">witch hunt</a>,” a “<a href="https://twitter.com/FatalPolitics/status/1207371750385704960">lynch mob</a>” and a “<a href="https://www.nytimes.com/1974/07/20/archives/ziegler-condemns-a-kangaroo-court.html">kangaroo court</a>.” </p>
<p>There is one vital difference between then and now. </p>
<p>In 1974, when the <a href="https://www.nytimes.com/1974/06/11/archives/president-defies-house-subpoena-for-more-tapes-letter-to-rodino.html">president defied some impeachment subpoenas</a>, many congressional Republicans said that that was, all by itself, an impeachable offense. </p>
<p>Yet in 2019, <a href="https://www.nytimes.com/2019/12/18/us/politics/trump-impeached.html">not a single House Republican voted</a> for the second article of impeachment charging President Trump, who defied <em>all</em> impeachment subpoenas, with obstruction of Congress.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/308883/original/file-20200107-123411-1911nuk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/308883/original/file-20200107-123411-1911nuk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/308883/original/file-20200107-123411-1911nuk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=406&fit=crop&dpr=1 600w, https://images.theconversation.com/files/308883/original/file-20200107-123411-1911nuk.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=406&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/308883/original/file-20200107-123411-1911nuk.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=406&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/308883/original/file-20200107-123411-1911nuk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=510&fit=crop&dpr=1 754w, https://images.theconversation.com/files/308883/original/file-20200107-123411-1911nuk.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=510&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/308883/original/file-20200107-123411-1911nuk.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=510&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">The House Judiciary Committee on July 30, 1974, at the urging of the panel’s second-ranking Republican, moved on a 21-to-17 vote to recommend President Nixon’s impeachment on a charge that he ‘willfully disobeyed’ the committee’s subpoenas for 147 Watergate related tapes.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/the-house-judiciary-committee-at-the-urging-of-the-panels-news-photo/515575234?adppopup=true">Getty - Bettmann / Contributor</a></span>
</figcaption>
</figure>
<h2>Nixon-era Republicans drew a line</h2>
<p>In 1974, many House Republicans defended the impeachment subpoena power at great political risk.</p>
<p>In January of that year, President Nixon told House Republicans, “I’m going to <a href="https://www.nytimes.com/1974/01/24/archives/nixon-to-fight-like-hell-against-impeachment-step-nixon-vows-to.html">fight like hell</a>” against impeachment. </p>
<p>Nixon’s first move was to invoke “<a href="https://theconversation.com/will-trumps-use-of-executive-privilege-help-him-avoid-congressional-oversight-it-didnt-help-richard-nixon-116575">executive privilege</a>” to justify his refusal to turn over evidence, like his secretly recorded White House tapes, to congressional investigators.</p>
<p>A key House Republican, <a href="https://www.washingtonpost.com/archive/local/1985/07/24/ex-rep-hutchinson-dies/465b93a1-42dd-4e2a-bf2a-37cc1cf0ca78/">Edward Hutchinson of Michigan</a>, firmly drew the line. The ranking Republican on the House Judiciary Committee, Hutchinson said the doctrine of executive privilege “in an impeachment inquiry <a href="https://www.nytimes.com/1974/01/30/archives/nixon-faces-gop-move-for-data-in-house-inquiry-nixon-faces.html">must fail</a>.” </p>
<p>The committee’s Republican counsel, Albert Jenner, agreed “100,000 percent.” Jenner warned that <a href="https://www.nytimes.com/1974/01/30/archives/nixon-faces-gop-move-for-data-in-house-inquiry-nixon-faces.html">if the president resisted a subpoena</a>, “the committee could exercise its judgment and include the action in its consideration of whether articles of impeachment should be brought.” </p>
<p>In February 1974, the full House backed the committee up, granting it the power to subpoena anything and anyone up to <a href="https://www.nytimes.com/1974/02/07/archives/house-4104gives-subpoena-power-in-nixon-inquiry-judiciary-panel-is.html">the president himself</a>. The vote was bipartisan, 410 in favor, with only 4 Republicans opposed. </p>
<p>In another bipartisan move, the committee voted <a href="https://www.nytimes.com/1974/04/12/archives/house-subpoena-bids-president-turn-over-tapes-other-material-white.html">33 to 3 in April 1974</a> to subpoena Nixon’s tapes. The Senate Republican minority leader, Hugh Scott of Pennsylvania, warned that failure to comply would put the administration in “grave danger … with <a href="https://books.google.com/books?id=cEF1AwAAQBAJ&pg=PA206&lpg=PA206#v=onepage&q&f=false">serious consequences</a> possibly leading to impeachment.”</p>
<p>While today’s Republicans complain that the House didn’t leave it to the courts to decide whether the president has to comply with its subpoenas, in May 1974 only six of the committee’s 17 Republicans voted to punt the issue to the courts. As Jenner put it earlier that year, “<a href="https://www.nytimes.com/1974/01/30/archives/nixon-faces-gop-move-for-data-in-house-inquiry-nixon-faces.html">No court in the land</a> has the power to review House and Senate actions on impeachment.”</p>
<p>The committee voted 21 to 17 in July 1974 to impeach the president for <a href="https://www.nytimes.com/1974/07/31/archives/house-panel-21-to-17-charges-nixon-with-defying-subpoenas-ends-its.html">subpoena defiance</a>. Two Republicans voted with the Democratic majority. Nixon resigned in August before the full House had a chance to vote.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/308890/original/file-20200107-123377-116077n.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/308890/original/file-20200107-123377-116077n.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/308890/original/file-20200107-123377-116077n.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=456&fit=crop&dpr=1 600w, https://images.theconversation.com/files/308890/original/file-20200107-123377-116077n.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=456&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/308890/original/file-20200107-123377-116077n.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=456&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/308890/original/file-20200107-123377-116077n.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=574&fit=crop&dpr=1 754w, https://images.theconversation.com/files/308890/original/file-20200107-123377-116077n.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=574&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/308890/original/file-20200107-123377-116077n.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=574&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">U.S. President Richard M. Nixon announces his resignation on television, Washington, D.C.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/president-richard-m-nixon-sits-at-a-desk-holding-papers-as-news-photo/2695962?adppopup=true">Hulton Archive/Getty Images</a></span>
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</figure>
<h2>Rewriting history</h2>
<p>This bipartisan – nonpartisan – history is one that today’s congressional Republicans have erased and replaced. </p>
<p>Testifying as a Republican witness before the House Judiciary Committee, <a href="https://thehill.com/homenews/house/472947-read-jonathan-turley-testimony">law professor Jonathan Turley called</a> the constitutional principle that the House decides the evidence and witnesses required for an impeachment inquiry an “extreme position.” </p>
<p>But that position was endorsed by eight committee Republicans (and 20 Democrats) when <a href="https://books.google.com/books?id=bNJRAQAAIAAJ&ppis=_e&pg=PA280#v=onepage&q&f=false">they wrote</a> in May 1974 to President Nixon: “Under the Constitution it is not within the power of the President to conduct an inquiry into his own impeachment, to determine which evidence, and what version and portion of that evidence, is relevant and necessary to such an inquiry. These are matters which, under the Constitution, the House has the sole power to determine.” </p>
<p>This view was mainstream, not extreme, and retains <a href="https://twitter.com/FatalPolitics/status/1207752917819822081">majority support by Americans</a> today.</p>
<p>To justify the current congressional Republican position that the House should let the courts decide its subpoena powers, Turley, a professor of constitutional law, gave a comically inaccurate account of legal history.</p>
<p><a href="https://www.rev.com/blog/house-judiciary-committee-impeachment-hearing-transcript-day-1">According to Turley</a>, the Supreme Court in <a href="https://www.oyez.org/cases/1973/73-1766">United States v. Nixon</a> told the president, “‘We’ve heard your arguments. We’ve heard Congress’ arguments. And you know what? You lose. Turn over the material to Congress.’ You know, what that did for the Judiciary Committee is, it gave this body legitimacy.” </p>
<p>There are three problems with Turley’s history: First, the Supreme Court did not hear Congress’ arguments, since Congress never took the matter to court. The case of U.S. v. Nixon was pressed by the Justice Department’s Watergate special prosecutor. Second, the court did not order Nixon to turn over his tapes to Congress, only to the special prosecutor; therefore, third, the decision could not add anything to the House Judiciary Committee’s legitimacy.</p>
<p>Turley’s is partisan history for partisan purposes. It enables one party to abandon principle and precedent while accusing the other of doing the same.</p>
<p>[ <em>Deep knowledge, daily.</em> <a href="https://theconversation.com/us/newsletters?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=deepknowledge">Sign up for The Conversation’s newsletter</a>. ]</p><img src="https://counter.theconversation.com/content/129313/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Ken Hughes is a researcher with the University of Virginia's Miller Center whose work is supported by grants from the National Historical Publications & Records Commission.</span></em></p>
An expert on Watergate says that today’s House Republicans have taken precisely the opposite position than the GOP took in 1974 on the president’s power to withhold documents from Congress.
Ken Hughes, Research Specialist, the Miller Center, University of Virginia
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/120392
2019-08-02T12:22:41Z
2019-08-02T12:22:41Z
The White House is upending decades of protocol for policy-making
<figure><img src="https://images.theconversation.com/files/286518/original/file-20190731-186809-1835ta4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Ford, Carter, George H.W. Bush and Clinton led four of the first administrations to fully embrace policy analysis.</span> </figcaption></figure><p>Whether it’s <a href="https://www.propublica.org/article/asylum-seekers-that-followed-trump-rule-now-dont-qualify-because-of-new-trump-rule">overhauling asylum procedures</a>, adding a question about <a href="https://theconversation.com/why-the-supreme-court-asked-for-an-explanation-of-the-2020-census-citizenship-question-119567">citizenship to the 2020 Census</a>, or rolling back <a href="https://arstechnica.com/cars/2019/06/17-automakers-ask-trump-to-hold-off-on-fuel-economy-rollback/">fuel standards</a>, a pattern has emerged when the Trump administration changes policies and creates new ones.</p>
<p>An announcement is made, media attention follows, the policy is formally proposed and finalized – generating more news coverage along the way. In many cases, judges suspend the new policy as <a href="https://www.vox.com/policy-and-politics/2018/11/8/18076324/daca-supreme-court-trump-when-lawsuit">lawsuits work their way through</a> the system. <a href="https://www.brookings.edu/research/trumps-deregulatory-efforts-keep-losing-in-court-and-the-losses-could-make-it-harder-for-future-administrations-to-deregulate/">Unusually</a>, the Supreme Court often ends up determining whether the new policy can go into effect.</p>
<p><a href="https://doi.org/10.1080/10841806.2000.11643493">All presidents since the 1960s</a> have embraced a process known as <a href="https://www.britannica.com/topic/policy-analysis">policy analysis</a> that requires careful consideration and deliberation at every step of the way. In most cases, the public also gets to weigh in before a final decision is made. Based on <a href="https://scholar.google.com/citations?user=R1CcxM8AAAAJ&hl=en&oi=ao">my research</a> about regulatory decision-making, I’ve observed a sea change in how Trump’s team is dealing with public policy compared to previous administrations.</p>
<h2>Administrative Procedure Act</h2>
<p>For the <a href="https://doi.org/10.1177%2F003231879404600211">first 150 years of this country’s history</a>, Congress, not presidents, decided on policies by enacting laws. </p>
<p>Starting <a href="https://www.fda.gov/about-fda/fda-basics/when-and-why-was-fda-formed">around 1900</a>, lawmakers began to delegate this task to independent agencies, such as the Securities and Exchange Commission, and to government agencies under the president’s control. The pace of this shift stepped up <a href="https://www.law.cornell.edu/constitution-conan/article-1/section-1/delegation-of-legislative-power">during the New Deal</a>, three decades later.</p>
<p>But because this arrangement can empower unelected bureaucrats, <a href="https://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=2448&context=facpubs">questions about accountability</a> arose. Chief among them: Could decisions made by unelected officials that affected millions of people be allowed in a democracy? Requiring public participation and systematic analysis became routine and required for most policy changes as a result.</p>
<p>The mandate for public participation came first.</p>
<p>In 1946, Congress passed the <a href="https://www.epa.gov/laws-regulations/summary-administrative-procedure-act">Administrative Procedure Act</a>. It established <a href="https://www.justia.com/administrative-law/rulemaking-writing-agency-regulations/notice-and-comment/">rulemaking procedures</a> that required agencies creating new policies to alert the public, seek comments, and then consider that input before making most policies final. <a href="https://www.doi.org/10.2307/1073060">Many states followed suit</a> with their own versions of this measure.</p>
<h2>Silent Spring</h2>
<p>The environmental, worker safety, and other social movements that arose during the 1960s and early 1970s led Congress to create agencies like the <a href="https://archive.epa.gov/epa/aboutepa/birth-epa.html">Environmental Protection Agency</a> and the <a href="https://www.osha.gov/as/opa/osha-at-30.html">Occupational Safety and Health Administration</a>. Lawmakers then delegated authority to make policy to those new agencies regarding the issues within their purview.</p>
<p>For example, the public pressure for greater automobile safety in the wake of consumer safety activist Ralph Nader’s book “<a href="https://nader.org/books/unsafe-at-any-speed/">Unsafe at Any Speed</a>” prompted Congress to empower the Department of Transportation to more strictly regulate automakers. Scientist <a href="https://www.womenshistory.org/education-resources/biographies/rachel-carson">Rachel Carson’s</a> “<a href="http://www.rachelcarson.org/SilentSpring.aspx">Silent Spring</a>,” a seminal book that exposed the damage caused by pesticides, expedited the passage of <a href="https://environmentallaw.uslegal.com/federal-laws/clean-air-act/">numerous environmental statutes</a> in the <a href="http://www.environmentandsociety.org/exhibitions/silent-spring/overview">U.S. and elsewhere</a> and the creation of the <a href="https://ceq.doe.gov/">EPA during the Nixon administration</a>.</p>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/286639/original/file-20190801-169696-b0micg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/286639/original/file-20190801-169696-b0micg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/286639/original/file-20190801-169696-b0micg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/286639/original/file-20190801-169696-b0micg.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/286639/original/file-20190801-169696-b0micg.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/286639/original/file-20190801-169696-b0micg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/286639/original/file-20190801-169696-b0micg.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/286639/original/file-20190801-169696-b0micg.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Alice Rivlin championed the practice of methodically assessing the potential impact of new policies and policy changes, while letting the public weigh in.</span>
<span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Financial-Meltdown/443af838982c4b7795573f72e68d3ebe/23/0">AP Photo/Haraz N. Ghanbari</a></span>
</figcaption>
</figure>
<p>In the wake of these new responsibilities, <a href="https://www.jstor.org/stable/23065473?seq=1#page_scan_tab_contents">starting with Gerald Ford</a>, all presidents, Republican and Democratic alike implemented and refined the requirements for analysis and input from the public prior to the unveiling of new policies. The analysis requirement championed by pioneers like <a href="https://www.brookings.edu/podcast-episode/alice-rivlin-a-career-spent-making-better-public-policy/">Alice Rivlin</a>, who served as President Bill Clinton’s budget chief, has led to <a href="https://doi.org/10.4337/9781784714765">many successes</a>.</p>
<p>One example is when the <a href="https://archive.epa.gov/epa/aboutepa/lead-poisoning-historical-perspective.html">EPA decided in the 1980s</a> to require the <a href="https://web.mit.edu/ckolstad/www/Newell.pdf">removal of all lead from gasoline</a> because the analysis of costs and benefits showed how many lives would be saved or improved by its elimination. I relayed another success story in my <a href="https://doi.org/10.1080/13876988.2017.1286019">policy analysis textbook</a>: when the Department of Homeland Security scaled back its proposal for stringent requirements on <a href="https://www.federalregister.gov/documents/2014/01/13/2014-00415/aircraft-repair-station-security">aircraft repair stations</a> in 2014. The Obama administration took this step after finding the costs to be too high for minimal security benefits.</p>
<p>These mandatory analyses forced agencies to use basic economic principles to calculate costs and benefits and to make the <a href="https://www.reginfo.gov/public/jsp/Utilities/EO_Redirect.myjsp">calculations available to the public</a>. </p>
<p>But this approach can also fail, at least partly because it can make decisions seem overly technocratic. That’s often the case when values are at stake, such as deciding whether protecting an <a href="https://law.utexas.edu/faculty/publications/1995-The-Science-Charade-in-Toxic-Risk-Regulation">endangered species</a> is worth increasing the cost of <a href="https://www.eenews.net/stories/1060092887">construction and infrastructure projects</a> – or blocking them altogether. </p>
<figure class="align-left zoomable">
<a href="https://images.theconversation.com/files/286641/original/file-20190801-169672-1ev0ibt.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/286641/original/file-20190801-169672-1ev0ibt.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/286641/original/file-20190801-169672-1ev0ibt.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/286641/original/file-20190801-169672-1ev0ibt.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/286641/original/file-20190801-169672-1ev0ibt.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/286641/original/file-20190801-169672-1ev0ibt.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/286641/original/file-20190801-169672-1ev0ibt.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/286641/original/file-20190801-169672-1ev0ibt.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Workers who make tunnels and toil in them are at risk for inhaling airborne silica, which can cause lung disease.</span>
<span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Associated-Press-Domestic-News-Nevada-United-St-/31e4ff58e3e6da11af9f0014c2589dfb/4/0">AP Photo/Laura Rauch</a></span>
</figcaption>
</figure>
<p>What’s more, following the requisite steps can also mean the rule-making process takes not just years but decades. OSHA, for example, has taken decades to issue some <a href="https://www.jstor.org/stable/1372818?seq=1#page_scan_tab_contents">rules that protect workers</a>. Its <a href="https://www.politico.com/agenda/story/2016/03/the-regulation-that-took-four-decades-to-finalize-000078">industrial quartz</a> regulations, for instance, reportedly took 45 years to finish. Technically known as crystalline silica, the substance, when finely ground up for manufacturing or <a href="https://www.cdc.gov/niosh/updates/silicupd.html">blasted during construction</a>, can cause workers to contract <a href="https://www.lung.org/lung-health-and-diseases/lung-disease-lookup/silicosis/silicosis-symptoms-causes-risk.html">silicosis</a>, an incurable lung disease, and lung cancer.</p>
<h2>Shifting gears</h2>
<p>The Trump administration hasn’t declared that it’s doing anything different. It hasn’t, as far as I know, ever declared that “policy analysis is bad” or said, “Let’s ignore the public and ignore expertise.”</p>
<p>But the public record shows that <a href="https://www.epi.org/press/dol-scrubs-economic-analysis-that-showed-its-tip-pooling-rule-would-be-terrible-for-workers/">Trump’s team has either ignored</a>, <a href="https://thehill.com/opinion/energy-environment/451095-clean-power-plan-repeal-shows-strengths-and-limits-of-policy">manipulated</a> or <a href="https://www.epa.gov/newsreleases/epa-administrator-pruitt-proposes-cost-benefit-analysis-reform">subverted</a> the requirements for analysis and <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3049004">participation</a> on numerous policy actions that range from addressing climate change to the division of waiters'tips.</p>
<p>Whether a federal agency analyzes its decisions or asks for public input on them may seem like the ultimate in inside baseball. But processes make a difference. I believe that its failure to follow the long-established policy analysis process is a key reason why Trump administration is <a href="https://www.brookings.edu/research/trumps-deregulatory-efforts-keep-losing-in-court-and-the-losses-could-make-it-harder-for-future-administrations-to-deregulate/">losing many court battles</a>. </p>
<p>[ <em><a href="https://theconversation.com/us/newsletters?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=thanksforreading">Thanks for reading! We can send you The Conversation’s stories every day in an informative email. Sign up today.</a></em> ]</p><img src="https://counter.theconversation.com/content/120392/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Stuart Shapiro does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>
The process known as policy analysis requires careful consideration and deliberation. In most cases, the public also gets to weigh in.
Stuart Shapiro, Professor of Planning and Public Policy, Rutgers University
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/120628
2019-07-22T10:56:36Z
2019-07-22T10:56:36Z
Asylum restrictions: The president can enforce the law, but can’t change it
<figure><img src="https://images.theconversation.com/files/284818/original/file-20190718-116586-ex6d9s.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">President Donald Trump keeps trying to change immigration law and the courts keep blocking him.</span> <span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Trump/6343079562774c538836b3425c4a257c/94/0">AP/Alex Brandon</a></span></figcaption></figure><p>Since his inauguration, President Trump’s immigration policies have been frustrated by the laws the U.S. Constitution requires him to <a href="https://constitutioncenter.org/interactive-constitution/articles/article-ii#section-1">“faithfully execute.”</a></p>
<p>While the Constitution has been interpreted to give the president power over foreign affairs, Congress has the power <a href="http://www.ushistory.org/gov/6a.asp">to make laws</a> determining which immigrants can enter, stay, become citizens of, or must leave the U.S. </p>
<p>The Constitution requires the president to enforce those immigration laws, but the president’s immigration policy often controls how those laws are enforced. </p>
<p>Throughout his presidency, Trump’s immigration policy has clashed with immigration law and the Constitution. Trump has attempted to create or repeal immigration law without the required congressional action. He’s done this through tools of enforcement, mainly <a href="https://www.migrationpolicy.org/research/us-immigration-policy-trump-deep-changes-impacts">executive orders and regulation changes</a>. </p>
<p>That has meant that the Trump administration’s major changes to the country’s enforcement of immigration laws have been <a href="https://www.migrationpolicy.org/article/trump-administration-faces-constraints-achieving-immigration-agenda">reversed, stopped or seriously modified by the federal courts</a>. The latest change by President Trump to U.S. immigration law <a href="https://s3.amazonaws.com/public-inspection.federalregister.gov/2019-15246.pdf">was announced on July 15</a>.</p>
<h2>Travel through v. resettlement</h2>
<p>The new change introduced by the president would fundamentally change asylum law. The rule went into effect the next day.</p>
<p>This new rule bars granting asylum to anyone who passed through another country before arriving in the United States. There are <a href="https://www.federalregister.gov/documents/2019/07/16/2019-15246/asylum-eligibility-and-procedural-modifications">three narrow exceptions</a>: if a person can prove either they applied for protection in the third country and were denied, or they are a victim of severe human trafficking, or the only country or countries passed through were not party to a 1951 U.N. agreement on how refugees are to be treated.</p>
<p>This is a sweeping change from current practice. The U.S. asylum law allows anyone who is arriving or already in the United States to <a href="https://www.law.cornell.edu/uscode/text/8/1158">seek asylum</a> regardless of immigration status or how they arrived. The law also recognizes that refugees fleeing their country may, by necessity, travel through, or even stay in other countries temporarily, until they can reach the U.S. </p>
<p>Trump’s new rule effectively bars asylum for the vast majority of those seeking it at the southern border who are mostly fleeing El Salvador, Honduras and Guatemala but also include Africans, Haitians and Cubans who enter from <a href="https://www.latimes.com/politics/la-na-pol-trump-refugee-camp-rio-grande-migrants-border-20190708-htmlstory.html">Mexico</a>.</p>
<p><a href="https://www.apnews.com/6bef9ed6c48b4c2ea203cbbea3ccacad">The justification</a> for this rule is to deter meritless asylum applications, Attorney General William Barr said. But as <a href="https://gould.usc.edu/faculty/?id=72708">a scholar and practitioner of immigration law</a>, it is unclear to me how those refugees fleeing overland through other countries would have meritless claims based on the manner in which they arrived in the U.S. </p>
<p>Furthermore, the rule does not take into consideration the principles of the <a href="https://www.unhcr.org/en-us/1951-refugee-convention.html">1951 Refugee Convention which has, for almost 70 years,</a> defined the term “refugee” and outlined the legal obligations of member nations to protect displaced persons. </p>
<h2>Rebuilding lives</h2>
<p>Among these principles is the responsibility of nations to protect people who are fleeing persecution in their home countries so that they can rebuild their lives and <a href="https://www.unhcr.org/en-us/3b66c2aa10">enjoy the same rights as other citizens in their country of refuge</a>. In 1967, the <a href="https://www.ohchr.org/EN/ProfessionalInterest/Pages/ProtocolStatusOfRefugees.aspx">U.S. committed to follow the principles of the Convention</a>. Through the <a href="https://www.archivesfoundation.org/documents/refugee-act-1980/">Refugee Act of 1980</a>, Congress incorporated the obligations of the Convention into modern U.S. asylum law. </p>
<p>Under the Convention and American asylum law, “firm resettlement” – which is when a refugee makes a home in a third country before coming to the U.S. – has been a reason to deny refugee status only under certain limited circumstances. </p>
<p>Since 1996, firm resettlement has been a <a href="https://www.law.cornell.edu/uscode/text/8/1158">bar to asylum in the U.S</a>. However, a person is not considered firmly resettled if presence in a third country was unavoidable, necessary to arrange further travel, and the person does not have ties to and a form of permanent lawful status in that country. Additionally, a person cannot be firmly resettled if their basic rights would be disproportionately restricted by the third country’s <a href="https://www.law.cornell.edu/cfr/text/8/208.15">government</a>. </p>
<p>In stark contrast, Trump’s new rule bars asylum for any person who passes through another country regardless of the danger in that country or a person’s ability to have any lawful status or basic rights there. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/284821/original/file-20190718-116590-19pkuwc.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/284821/original/file-20190718-116590-19pkuwc.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/284821/original/file-20190718-116590-19pkuwc.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/284821/original/file-20190718-116590-19pkuwc.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/284821/original/file-20190718-116590-19pkuwc.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/284821/original/file-20190718-116590-19pkuwc.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/284821/original/file-20190718-116590-19pkuwc.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/284821/original/file-20190718-116590-19pkuwc.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Judge Dana Sabraw, of the U.S. District Court in the Southern District of California, is one of several judges who have stopped Trump’s new immigration policies.</span>
<span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Immigration-Separating-Families/9c83bf2d3da04dc695704edbb7d1f452/81/0">AP/Martin Panuco, U.S. District Court in the Southern District of California</a></span>
</figcaption>
</figure>
<h2>Courts say no</h2>
<p>In what is becoming a pattern, <a href="https://www.washingtonpost.com/immigration/aclu-others-file-suit-in-san-francisco-federal-court-to-halt-trump-asylum-ban/2019/07/16/ece066be-a806-11e9-86dd-d7f0e60391e9_story.html?utm_term=.608f86a164c7">the ACLU and other plaintiffs</a> are attempting to stop Trump’s most recent move to change U.S. immigration law. They are asking the courts to find the new rule invalid and to bar the government from carrying it out. </p>
<p>The legal arguments of advocates challenging the Trump administration’s latest move are consistent with previous cases. In those cases, the federal courts have checked the administration’s unlawful immigration policies including the first <a href="https://www.supremecourt.gov/opinions/17pdf/17-965_h315.pdf">“travel ban,”</a> the termination of Deferred Entry for Childhood Arrivals (<a href="https://www.nilc.org/issues/daca/status-current-daca-litigation/">DACA</a>), <a href="https://www.aclu.org/legal-document/ms-l-v-ice-order-granting-plaintiffs-motion-classwide-preliminary-injunction">the detention and separation of children from their parents</a> and the “<a href="https://www.nytimes.com/2018/11/20/us/judge-denies-trump-asylum-policy.html">2018 Proclamation</a>” which sought to bar asylum for those persons not arriving at a formally recognized port of entry. </p>
<p>The <a href="https://cdn.theconversation.com/static_files/files/659/ACLU_lawsuit.pdf?1563547086">arguments against the administration’s</a> new policy are essentially that 1) the new rule violates the law; 2) there was no notice and comment period, as the law requires for such changes in policy; and 3) the justification is specious. </p>
<p>If the short history of this presidency repeats itself, the courts will likewise order a stop to this latest immigration action. </p>
<p>While this president is not the first to undertake controversial immigration policies, the hallmark of the administration’s implementation of such policies seems to be chaos for both government officials and those attempting to enter the U.S. </p>
<p><a href="https://www.latimes.com/politics/la-na-pol-asylum-rule-trump-border-20190715-story.html">Immigration officials are overwhelmed and not prepared</a> for changes in procedure or policy, <a href="https://www.theguardian.com/us-news/2017/jan/31/people-detained-airports-trump-travel-ban">noncitizens have been stranded at airports</a> or <a href="https://www.oig.dhs.gov/sites/default/files/assets/Mga/2019/oig-19-46-may19-mgmtalert.pdf">detained in overcrowded substandard facilities</a>, or <a href="https://www.latimes.com/world/mexico-americas/la-fg-mexico-border-separated-children-asylum-20190302-story.html">separated from their children in different states and countries</a>. </p>
<p>The “better to seek forgiveness than permission” method of implementing these policies is intended to have the collateral effect of <a href="https://www.washingtonpost.com/immigration/trump-wants-toughness-to-deter-migration-but-physical-measures-keep-failing/2019/05/04/a14495a2-6d16-11e9-8f44-e8d8bb1df986_story.html?utm_term=.b2ac1a531514">deterring immigration</a> as the international community watches it dramatically, and at times harshly, unfold before judicial intervention stops it. </p>
<p>If it is allowed to stand, the July 15 rule would mean the majority of people fleeing danger in their home countries will now be returned to those countries by the U.S. government. The courts are once again faced with curbing the president’s efforts to illegally expand his power over immigration.</p><img src="https://counter.theconversation.com/content/120628/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jean Lantz Reisz receives funding from Los Angeles Justice Fund and California Department of Social Services to represent, pro bono, immigrants in removal proceedings. </span></em></p>
The Trump administration has once again tried to change immigration law, this time enacting severe limits on the rights of asylum-seekers. An immigration law expert says only Congress can do that.
Jean Lantz Reisz, Supervising Attorney, USC Immigration Clinic and Adjunct Assistant Professor of Law, University of Southern California
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/116575
2019-05-08T21:24:41Z
2019-05-08T21:24:41Z
Will Trump’s use of executive privilege help him avoid congressional oversight? It didn’t help Richard Nixon
<figure><img src="https://images.theconversation.com/files/273386/original/file-20190508-183106-rkwlld.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">On Aug. 9, 1974, Richard M. Nixon resigned and left the White House</span> <span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Associated-Press-Domestic-News-Dist-of-Columbi-/363e09d444e5da11af9f0014c2589dfb/38/0">AP/Chick Harrity</a></span></figcaption></figure><p>Like Donald Trump, Richard Nixon tried to stonewall congressional investigations into crimes allegedly committed in the White House. </p>
<p>“Why, we’ll just let it go to the (Supreme) Court. <a href="https://books.google.com/books?id=SyBzl29qbZ0C&lpg=PA227&ots=KcAVn--Dq3&dq=%E2%80%9CWhy%2C%20we%E2%80%99ll%20just%20let%20it%20go%20to%20the%20(Supreme)%20Court.%20Fight%20it%20like%20hell%E2%80%9D&pg=PA227#v=onepage&q=%E2%80%9CWhy,%20we%E2%80%99ll%20just%20let%20it%20go%20to%20the%20(Supreme)%20Court.%20Fight%20it%20like%20hell%E2%80%9D&f=false">Fight it like hell</a>,” Nixon said. </p>
<p>But the stone wall crumbled under pressure from the public, Congress and the courts, and its rubble formed the foundation for an article of impeachment.</p>
<p>As the Senate Watergate investigation began in 1973, Nixon took a position like <a href="https://www.usatoday.com/story/news/politics/2019/05/02/trump-not-let-mcgahn-testify-before-congress/3656604002/">Trump did on May 2</a>, when he barred former White House counsel Don McGahn from testifying before Congress about potential obstruction of justice by the president. </p>
<p>To block current and former White House aides from testifying before Congress, Nixon claimed that “<a href="https://www.presidency.ucsb.edu/documents/statement-about-executive-privilege">executive privilege</a>” shielded presidential conversations from congressional oversight. </p>
<p>And just as Trump claimed on Wednesday that executive privilege <a href="https://www.politico.com/story/2019/05/08/trump-invokes-executive-privilege-to-block-release-of-unredacted-mueller-report-1311738">allows him to withhold</a> the complete, unredacted Mueller report from Congress, Nixon claimed it allowed him to withhold executive branch documents.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/273390/original/file-20190508-183083-1m1yf02.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/273390/original/file-20190508-183083-1m1yf02.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/273390/original/file-20190508-183083-1m1yf02.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/273390/original/file-20190508-183083-1m1yf02.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/273390/original/file-20190508-183083-1m1yf02.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/273390/original/file-20190508-183083-1m1yf02.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/273390/original/file-20190508-183083-1m1yf02.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/273390/original/file-20190508-183083-1m1yf02.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">President Donald Trump asserted executive privilege to keep information about the Mueller report from Congress.</span>
<span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Fact-Check-Week/e6969fdccdea4b2e841e19c23390b5f4/206/0">AP/Alex Brandon</a></span>
</figcaption>
</figure>
<h2>Why Nixon resisted</h2>
<p>Nixon’s claims of executive privilege were a matter of political survival. </p>
<p>One of the crimes for which Congress was investigating Nixon was <a href="https://www.history.com/this-day-in-history/nixon-charged-with-first-of-three-articles-of-impeachment">obstruction of justice</a>, and he was guilty. </p>
<p>There is no credible evidence that Nixon knew about the <a href="https://www.quora.com/Did-Richard-Nixon-know-about-the-Watergate-break-in-before-it-happened">underlying crime</a>, the <a href="https://millercenter.org/the-presidency/educational-resources/watergate-break">Watergate break-in</a>, until after the burglars got caught. </p>
<p>But Nixon did know that some of those involved in the break-in were linked to other crimes he personally initiated, such as the illegal leaking of information obtained from <a href="https://www.washingtonpost.com/wp-srv/politics/special/clinton/stories/rule6e.htm">grand juries</a> to discredit his political enemies. </p>
<p>The president had obstructed the FBI investigation of Watergate to conceal his own crimes. On June 23, 1972, for example, in a conversation captured on his own secret White House taping system, Nixon approved a plan to use the CIA to obstruct the FBI investigation. This tape ultimately became known as “the <a href="https://millercenter.org/the-presidency/secret-white-house-tapes/smoking-gun">smoking gun</a>,” since it proved that Nixon was guilty of obstruction.</p>
<p>Nixon was using “executive privilege” to conceal his obstruction from Congress and the Watergate special prosecutor.</p>
<h2>Political survival</h2>
<p>Nixon could not hold the hard line for long. It made him look guilty, even to supporters, who started asking why he didn’t just let his aides testify if he was innocent. </p>
<p>And when former aides decided to testify against him, as former White House counsel <a href="http://www.washingtonpost.com/wp-srv/onpolitics/watergate/johndean.html">John W. Dean III did on national television</a>, it was obvious Nixon had no power to stop them. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/273384/original/file-20190508-183080-1hjvt0k.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/273384/original/file-20190508-183080-1hjvt0k.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/273384/original/file-20190508-183080-1hjvt0k.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=226&fit=crop&dpr=1 600w, https://images.theconversation.com/files/273384/original/file-20190508-183080-1hjvt0k.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=226&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/273384/original/file-20190508-183080-1hjvt0k.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=226&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/273384/original/file-20190508-183080-1hjvt0k.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=284&fit=crop&dpr=1 754w, https://images.theconversation.com/files/273384/original/file-20190508-183080-1hjvt0k.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=284&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/273384/original/file-20190508-183080-1hjvt0k.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=284&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">New York Times, May 23, 1973.</span>
<span class="attribution"><a class="source" href="https://timesmachine.nytimes.com/timesmachine/1973/05/23/issue.html?action=click&contentCollection=Archives&module=LedeAsset&region=ArchiveBody&pgtype=article">Screenshot, NY Times archive</a></span>
</figcaption>
</figure>
<p>If Nixon wanted any current or former White House aides to testify in his favor – there were many who were willing to, from H.R. Haldeman to Patrick Buchanan – and offset the bad publicity he was getting from the hearings, he had to reverse himself. <a href="https://law.justia.com/cases/federal/appellate-courts/F2/487/700/82051/">In May 1973, Nixon announced that</a> “executive privilege will not be invoked as to any testimony concerning possible criminal conduct.”</p>
<p>But he still withheld White House documents. </p>
<p>Again, it was a matter of political survival. He could plausibly deny testimony against him, but it was impossible to deny <a href="https://www.washingtonpost.com/politics/president-refuses-to-turn-over-tapes-ervin-committee-cox-issue-subpoenas/2012/06/04/gJQAWfG9IV_story.html?utm_term=.ad7c5ce80182">his own voice on tape</a>. </p>
<h2>Struggle over privilege</h2>
<p>Once the existence of his <a href="https://www.c-span.org/video/?313828-1/senate-watergate-committee-testimony">secret tapes was revealed to Congress in July 1973, they</a> became the center of the <a href="https://www.washingtonpost.com/wp-srv/national/longterm/watergate/articles/072473-1.htm">struggle over executive privilege</a>.</p>
<p><a href="https://millercenter.org/three-little-words">Congress and the special prosecutor wanted the tapes</a>, because they could prove once and for all who was telling the truth. Nixon withheld them for that same reason. </p>
<p>The issue came to a head once the <a href="https://timesmachine.nytimes.com/timesmachine/1973/10/31/91024202.pdf">House Judiciary Committee began an impeachment inquiry</a>. </p>
<p>The committee’s ranking Republican, Rep. Edward Hutchinson of Michigan, said at the inquiry’s outset that he “would tell (the White House) that <a href="https://www.nytimes.com/1974/02/03/archives/on-the-record-about-the-past.html">executive privilege in the face of an impeachment inquiry must fall</a>.” </p>
<p>The notion that the president enjoys the privilege of withholding information from Congress is based in the <a href="https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=5725&context=penn_law_review">constitutional separation of powers, but impeachment is an exception</a> to that separation. Impeachment is a legislative check on executive power, just as the veto, for example, is an executive check on legislative power. </p>
<p>Nixon’s own Justice Department could not find a single example in history of anyone <a href="https://www.nytimes.com/1974/02/28/archives/a-justice-study-assays-inquiry-confrontation-of-highest-magnitude.html">ever</a> invoking executive privilege in an impeachment inquiry – not even Andrew Johnson, the only president to have been impeached by that point. (Congress can impeach any <a href="https://history.house.gov/Institution/Origins-Development/Impeachment/">civil officer</a> of the U.S. government.) </p>
<p>When the Judiciary Committee subpoenaed Nixon’s tapes, Nixon refused to turn them over, saying he had already provided Congress with “the <a href="https://www.nytimes.com/1974/06/11/archives/president-defies-house-subpoena-for-more-tapes-letter-to-rodino.html">full story</a> of Watergate.” </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/273392/original/file-20190508-183103-1khyfuz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/273392/original/file-20190508-183103-1khyfuz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/273392/original/file-20190508-183103-1khyfuz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=494&fit=crop&dpr=1 600w, https://images.theconversation.com/files/273392/original/file-20190508-183103-1khyfuz.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=494&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/273392/original/file-20190508-183103-1khyfuz.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=494&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/273392/original/file-20190508-183103-1khyfuz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=621&fit=crop&dpr=1 754w, https://images.theconversation.com/files/273392/original/file-20190508-183103-1khyfuz.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=621&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/273392/original/file-20190508-183103-1khyfuz.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=621&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">The original Nixon White House tape recorder.</span>
<span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Nixon-Tapes/1d7e0d2288fd4b0eb398487651e84f66/1/0">National Archives via the AP</a></span>
</figcaption>
</figure>
<h2>The court acts, the president resigns</h2>
<p>But Nixon was forced to give his tapes to the special prosecutor when the <a href="https://www.washingtonpost.com/wp-srv/national/longterm/watergate/articles/072574-1.htm">Supreme Court</a> decided 8-0 on July 24, 1974, that executive privilege did not give a president the right to refuse to hand over evidence in a criminal trial.</p>
<p>Within a week, the Judiciary Committee, which was debating impeachment counts, voted 21-17 <a href="https://www.nytimes.com/1974/07/31/archives/house-panel-21-to-17-charges-nixon-with-defying-subpoenas-ends-its.html">to charge Nixon with defying congressional subpoenas</a>. </p>
<p>“If we do not pass this article today, the whole impeachment power becomes meaningless,” <a href="https://library.cqpress.com/cqalmanac/document.php?id=cqal74-1223105">said Rep. Lawrence J. Hogan, a Republican of Maryland</a>, father of the <a href="https://governor.maryland.gov/governor-larry-hogan/">current Maryland governor, Larry Hogan</a>.</p>
<p>In August, publication of a transcript of the the smoking gun tape confirmed that the president was guilty of obstruction of justice. <a href="https://www.washingtonpost.com/wp-srv/national/longterm/watergate/articles/080974-3.htm">Nixon resigned</a> rather than give Congress the chance to remove him. </p>
<p>His claims of executive privilege had helped him hold onto power an extra year. Invoking executive privilege was not a winning play – but it was the last one available to a guilty president.</p>
<p><em>This article has been updated to correct the vote count when the Judiciary Committee charged Nixon with defying Congressional subpoenas.</em></p><img src="https://counter.theconversation.com/content/116575/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>It's not relevant to this article, but Ken Hughes works for an organization, the Miller Center, that receives government funding through the National Historical Publications & Records Commission.</span></em></p>
President Trump has invoked executive privilege to stymie congressional investigators. Another president, Richard Nixon, did the same thing. It helped Nixon hold onto power – but only for a while.
Ken Hughes, Research Specialist, the Miller Center, University of Virginia
Licensed as Creative Commons – attribution, no derivatives.
tag:theconversation.com,2011:article/112118
2019-02-25T17:26:47Z
2019-02-25T17:26:47Z
Trump vs. Congress: The emergency declaration should not be resolved in court
<figure><img src="https://images.theconversation.com/files/260564/original/file-20190224-195876-1a8yn2y.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">President Donald Trump declaring a national emergency to build a wall. </span> <span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Trump-Border-Security-California/3625e9c2b78a4a858882c191aa647520/29/0">AP/Evan Vucci</a></span></figcaption></figure><p>President Donald Trump’s emergency declaration to build a border wall has provoked a constitutional confrontation with Congress.</p>
<p>Here is the background for understanding what’s at stake – beginning more than two centuries ago. </p>
<p>A major problem for the framers at the <a href="https://www.jstor.org/stable/1939766">Constitutional Convention in 1787</a> was how to create a presidency powerful enough to protect the nation, yet constrained enough to prevent a president from becoming a dictator. </p>
<p>Ultimately, <a href="https://www.law.cornell.edu/wex/executive_power">the president was given power</a> to enforce the law, conduct foreign relations and command the armed forces. Congress retained most other key powers, including <a href="https://history.house.gov/Institution/Origins-Development/Power-of-the-Purse/">the power of the purse</a> and <a href="https://history.house.gov/Institution/Origins-Development/War-Powers/">the power to declare war</a>.</p>
<p>The framers knew they could not predict all that the future would bring. So they left the <a href="https://theconversation.com/separation-of-powers-an-invitation-to-struggle-110476">precise boundaries between presidential and congressional power unclear</a>. This imprecision in our checks and balances has served the nation well for 230 years because it provides the flexibility to govern while preventing tyranny. </p>
<p>As scholars of <a href="https://global.oup.com/academic/product/politics-and-capital-9780190847029?cc=us&lang=en&">constitutional law</a> and <a href="https://global.oup.com/academic/product/e-pluribus-unum-9780190880804?cc=us&lang=en&">history</a>, we believe that President Trump’s assertion of a national emergency to build a wall along the Mexican border and the <a href="https://www.washingtonpost.com/national/health-science/coalition-of-states-sues-trump-over-national-emergency-to-build-border-wall/2019/02/18/9da8019c-33a8-11e9-854a-7a14d7fec96a_story.html?utm_term=.41c7b1156c53">lawsuits filed in response</a> together threaten the very imprecision that has helped maintain constitutional checks and balances for more than two centuries.</p>
<p>To best maintain that balance, this confrontation should be resolved in the political realm, not in the courts.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/260568/original/file-20190224-195879-1b37ww9.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/260568/original/file-20190224-195879-1b37ww9.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/260568/original/file-20190224-195879-1b37ww9.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=387&fit=crop&dpr=1 600w, https://images.theconversation.com/files/260568/original/file-20190224-195879-1b37ww9.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=387&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/260568/original/file-20190224-195879-1b37ww9.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=387&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/260568/original/file-20190224-195879-1b37ww9.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=486&fit=crop&dpr=1 754w, https://images.theconversation.com/files/260568/original/file-20190224-195879-1b37ww9.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=486&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/260568/original/file-20190224-195879-1b37ww9.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=486&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">The signing of the Constitution of the United States.</span>
<span class="attribution"><a class="source" href="https://www.aoc.gov/art/other-paintings-and-murals/signing-constitution">Architect of the Capitol; Howard Chandler Christy, artist</a></span>
</figcaption>
</figure>
<h2>The national emergency</h2>
<p>But the lawsuits over the emergency declaration will probably reach the Supreme Court, and the court might well hold Trump’s emergency declaration unconstitutional. </p>
<p>That would set a precedent that would unduly limit national emergency power that some future president may need.</p>
<p>Alternatively, the court could decide the lawsuits in Trump’s favor. That would invert the entire constitutional order, where Congress appropriates and the president spends. It would undercut the checks and balances provided by the framers and lead to an incredibly powerful presidency.</p>
<p>Either result the court reaches would set a bad precedent.</p>
<p>Congress can avert this problem. </p>
<p>The <a href="https://www.congress.gov/bill/94th-congress/house-bill/3884">1976 National Emergencies Act</a> gives Congress power to invalidate a president’s declaration of emergency by a resolution passed by simple majorities of both houses. </p>
<p><a href="https://www.nytimes.com/2019/02/26/us/politics/national-emergency-vote.html?action=click&module=Top%20Stories&pgtype=Homepage">The House voted 245-182 on Tuesday</a> to overturn President Trump’s national emergency declaration. Democrats were joined by more than a dozen Republicans in the vote. The Senate will now take up the measure, though a vote has not been scheduled.</p>
<p>White House adviser Stephen Miller has already suggested that <a href="https://www.washingtonpost.com/arts-entertainment/2019/02/17/answer-my-question-fox-news-host-grills-defiant-stephen-miller-trumps-national-emergency/?utm_term=.d36aae3812ce">Trump would veto</a> any such resolution. </p>
<p>“He’s going to protect his national emergency declaration. Guaranteed,” <a href="https://www.vox.com/policy-and-politics/2019/2/21/18234200/congress-trump-national-emergency">Miller said on Fox News</a>. Both the House and the Senate would then need two-thirds majorities to override his veto.</p>
<p>We believe that for Congress to protect the constitutional order, its members must muster the necessary two-thirds majority. </p>
<h2>To the court</h2>
<p>If Congress does not override the president’s veto, the lawsuits will probably go to the Supreme Court. The court’s decision has strong potential to do harm to the historic constitutional balance. </p>
<p>That balance was upheld by the Supreme Court in a crucial decision more than 50 years ago.</p>
<p>On April 9, 1952, <a href="https://www.history.com/this-day-in-history/truman-declares-state-of-emergency">President Truman declared a national emergency</a>. In the midst of the Korean War, he seized the country’s steel mills on the eve of a nationwide strike because steel was necessary to make weapons. The steel companies immediately brought a lawsuit against the seizure in federal court. </p>
<p>Recognizing the importance of the issue, the Supreme Court heard arguments on May 12, and handed down its decision on June 2. </p>
<p>The court, in <a href="https://www.loc.gov/item/usrep343579/">Youngstown Company v. Sawyer</a>, rejected the president’s claim by a 6-3 majority. </p>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/260566/original/file-20190224-195886-1ibh21p.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/260566/original/file-20190224-195886-1ibh21p.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/260566/original/file-20190224-195886-1ibh21p.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=938&fit=crop&dpr=1 600w, https://images.theconversation.com/files/260566/original/file-20190224-195886-1ibh21p.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=938&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/260566/original/file-20190224-195886-1ibh21p.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=938&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/260566/original/file-20190224-195886-1ibh21p.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1178&fit=crop&dpr=1 754w, https://images.theconversation.com/files/260566/original/file-20190224-195886-1ibh21p.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1178&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/260566/original/file-20190224-195886-1ibh21p.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1178&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Supreme Court Justice Robert Jackson wrote a crucial opinion about presidential emergency power.</span>
<span class="attribution"><a class="source" href="https://www.oyez.org/justices/robert_h_jackson">The Supreme Court, portrait by John C. Johnsen</a></span>
</figcaption>
</figure>
<p>Justice Robert Jackson wrote an opinion proclaiming a general approach to the balance of powers between Congress and the president, rather than a fixed rule. </p>
<p><a href="https://www.oyez.org/cases/1940-1955/343us579">Jackson declared that</a> “when the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum.” </p>
<p>The president’s power, Jackson wrote, is in a “zone of twilight” when Congress has not spoken. When “the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb.” </p>
<h2>President against Congress</h2>
<p>President Trump is acting contrary to Congress’s will by appropriating money Congress has refused to appropriate. He <a href="https://cdn.govexec.com/a/interstitial.html?v=8.25.0&rf=https%3A%2F%2Fwww.govexec.com%2Fmanagement%2F2019%2F02%2Ftrump-signs-spending-bill-and-emergency-declaration-avoiding-shutdown-and-granting-pay-raise%2F154925%2F">signed a carefully constructed compromise budget bill</a> passed by more than veto-proof two-thirds majorities in both houses. He accepted the US$1.375 billion that the bill gave him for a border wall. </p>
<p>He then broke the deal <a href="https://www.cnbc.com/2019/02/15/trump-national-emergency-declaration-border-wall-spending-bill.html">by declaring a national emergency</a> to allocate an additional $6.7 billion to pay for border wall construction. </p>
<p>In <a href="https://www.loc.gov/item/usrep524417/">two</a> <a href="https://www.loc.gov/item/usrep478714/">important cases</a>, the Supreme Court has broadly prohibited Congress from giving any of its appropriations authority or responsibility to the president – even voluntarily. </p>
<p>Congress’s adoption of a joint resolution seeking to invalidate Trump’s emergency declaration – an explicit statement of congressional will – would provide conclusive evidence that would only strengthen the argument that the president is acting contrary to Congress’s will. </p>
<h2>Preserving the constitutional balance</h2>
<p>If the case gets to the Supreme Court, the president’s lawyers might argue that for Congress to decisively oppose an emergency declaration of the president, lawmakers must override his veto by a two-thirds vote.</p>
<p>Imposing such a veto override requirement, however, would eliminate the court’s role. That’s because a presidential declaration of emergency is immediately invalid if Congress overrides a presidential veto. </p>
<p>Two-thirds overrides are historically <a href="https://www.politico.com/story/2014/03/this-day-in-politics-march-3-1845-104144">unlikely by Congress</a>. And requiring a two-thirds vote would give a president who declares a national emergency virtually unlimited power to appropriate money to his or her heart’s content – perhaps hundreds of billions of dollars to address, for example, climate change by subsidizing construction of wind farms. </p>
<p>Requiring Congress to override a presidential veto that protects a presidential appropriation would turn the appropriations power and the Constitution’s checks and balances inside out. </p>
<p>Congress has already spoken through passing the spending bill and will be considering a resolution to invalidate the president’s declaration of emergency.</p>
<p>Such a resolution, even if vetoed by the president, places President Trump’s declaration in Justice Jackson’s category where presidential power “is at its lowest ebb.” </p>
<p>It also preserves the historic flexibility by allowing the court’s decision to give deference to the votes of Congress in cases of claimed emergencies. </p>
<p><em>This story has been updated to reflect the House vote on Feb. 26, 2019, on the resolution to overturn President Trump’s national emergency declaration.</em> </p>
<p><em>John Attanasio, a legal scholar and author of “<a href="https://global.oup.com/academic/product/politics-and-capital-9780190847029?cc=us&lang=en&">Politics and Capital: Auctioning the American Dream</a>,” is a contributing author.</em></p><img src="https://counter.theconversation.com/content/112118/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>William E. Nelson does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>
The constitutional conflict between Congress and President Trump over his emergency declaration has potential to undermine centuries of checks and balances between the two branches of government.
William E. Nelson, Professor of Law, New York University
Licensed as Creative Commons – attribution, no derivatives.