The Work of Law

 

The Supreme Court this morning ruled in Trump v. Anderson that states cannot enforce the insurrection provisions of Section 3 of the Fourteenth Amendment against federal office-seekers. This part of the decision was 9-0,* and it rested largely on pragmatic grounds: state-by-state "enforcement" of Section 3 might lead to a patchwork of inconsistent state rulings and procedures, which would "sever the direct link that the Framers found so critical between the National Government and the people of the United States" and "could dramatically change the behavior of voters, parties, and States across the country, in different ways and at different times."

This pragmatic argument has purchase to it. This sort of "patchwork" was raised by many esteemed commentators, from all across the political spectrum. Many worried, for instance, that if Colorado was allowed to unilaterally disqualify Trump from the presidential ballot, then, say, Texas might do the same to Biden in response -- a tit-for-tat escalation that would throw the presidential election system into chaos.

To be sure, there also are certainly pragmatic arguments that push in the other direction. There is the practical need to ensure that Section 3 of the Fourteenth Amendment is actually enforced, for instance. There's also the fact that our federal system already bakes in a patchwork system of state regulation over federal elections that leads to a host of manifest inconsistencies -- that may be a bad idea, but it's one we've long accepted and will continue to accept in other contexts after this decision. And the worry about retaliatory red state action boils down to "if Colorado disqualifies Trump based on a legally plausible rationale, Texas might do so for transparently spurious and bad faith reasons." Given the state of the modern GOP, this possibility cannot be gainsaid entirely, but it is pathetic that we've even come to that point.

In any event, I digress. The main point I wanted to flag is that the Court rests its decision not so much on "originalism" or "textualism" but based on a practical assessment of what is necessary to ensure the workability of our presidential electoral process. As a pragmatist, I cannot complain about that approach -- except that it is an approach the Court only takes when it is convenient. In a year or so when we get our next Dobbs or Bruen, we will again no doubt see the Court solemnly intone that we must interpret the text of the constitution strictly in accord with the original meaning of the framers, consequences be damned (that's "results-oriented judging"!), and it will be revealed (even more than it already was) as a transparent lie. Beyond the merits of formalism versus pragmatism, it is the cheerful oscillation between the two based on the needs of the moment that reveal the fundamental arbitrariness of the governing Supreme Court majority (my fantasy is that just once we get a dissent that opens with, "the majority begins, as it must occasionally deigns to do, with the constitutional text...." and then but see cite all the cases where this Court has blitzed past the text to reach a "practical" result).

"The work of law," Justice O'Connor famously advised, "is to make the law work." I've long liked that approach. But when the work of law is revealed to be a work, not a shoot, there's little reason to trust judicial decisions that purport to rest either on workability or strict formalism.

* The Court also held, 5-4, that only Congress (not the judiciary) can effectuate the enforcement of Section 3 of the Fourteenth Amendment, based on the view that Section 5 of the Fourteenth Amendment renders this exclusively a congressional prerogative. I don't have much to say on this, except to note that I just finished teaching Section 5 doctrine in my Constitutional Law class last week and my notes contain a line about how "one view of the meaning of Section 5 is that only Congress can 'enforce' the Fourteenth Amendment; courts have to stay out. But nobody seems to take that extreme view ...." Certainly, this robust and exclusive understanding of congressional power would be news to the Congress that saw the Voting Rights Act struck down by the Supreme Court because Congress' textual Section 5 authority needed to yield to the judiciary's invented and atextual "equal sovereignty of the states" doctrine.

Hostage Situation

While it wasn't on my formal list, I propose that one of our collective new year's resolutions be to remember that one does not, under any circumstances, have to hand it to Elise Stefanik:

Rep. Jamie Raskin (D-Md.) went after Rep. Elise Stefanik (R-N.Y.) on Sunday after Stefanik called those found guilty of crimes related to the Jan. 6 Capitol riots “hostages,” claiming that her divisive remarks are part of her efforts to join former President Trump’s 2024 ticket.

[....] 

“I have concerns about the treatment of Jan. 6 hostages,” [Stefanik] said. “We have a rule in Congress of oversight over our treatment of prisoners. And I believe that we’re seeing the weaponization of the federal government against not just President Trump, but we’re seeing it against conservatives.”

In the immediate aftermath of January 6, Stefanik was vocal in demanding the Justice Department prosecute those responsible “to the fullest extent of the law.” But that was then, and this is now, and now Stefanik sees an opportunity to pander.

That Stefanik is a craven opportunistic weasel is too clear to need remarking on at this point. Kudos also to Raskin for taking the obvious but nonetheless necessary shot:

Raskin also demanded that Stefanik apologize for her comments, pointing to approximately 130 hostages held by Hamas in Gaza amid the brutal war with Israel.

“People convicted of violently assaulting police officers and conspiring to overthrow the government are not ‘hostages,’” he said on X. “Stefanik must apologize to the families of 130 people being held hostage by Hamas right now. Her pandering to Trump is dangerous.”

Israelis being raped and brutalized in Hamas captivity are "hostages". Insurrectionists imprisoned after being duly convicted for crimes following due process of law are not. Simple. And while Stefanik's casual insult towards actual hostages is hardly the primary story, anything that dims the ill-gotten luster Stefanik "earned" via her bad faith grandstanding about campus antisemitism is worth applauding.

(Actually, I'll make one more observation here, which is that somehow prison abolitionists -- who might agree in concept with characterizing workaday criminal convicts as "hostages" and certainly would support greater scrutiny of how we treat prisoners -- have somehow managed to resist any "well, I may not like her, but you've got to hand it to Stefanik ..." temptations. Fancy that.).

Tiger Down

It looks like the Sri Lankan government has managed to completely crush the Tamil Tiger insurgency. It did so with a ruthlessness and disdain for civilian casualties that makes Cast Lead look like a training exercise, but such is the world we live in. For all the talk about how we step so lightly around Israel, there is almost no doubt that the global community keeps it on a shorter leash than any other nation engaging in counter-insurgency operations. Whether we should loosen our standards on Israel, or tighten them everywhere else, is an open question. Sri Lanka does seem to be a point in favor of Give War a Chance, but, much like with torture or the suicide bombings of the Tamils and Hamas, "it works" isn't always a good enough reason to let things fly.

But what's done is done. Robert Farley gives his military perspective -- he really seems to think this could be the end for the LTTE in its current form (though he doesn't rule out a reorganization stemming from the Tamil diaspora). At the very least though, it may give the Sri Lankan government the breathing space it needs to negotiate a settlement. Hopefully, it will take the chance, rather than re-entrenching the grievances that led the Tamils to revolt in the first place.

Coin Op and Cona Op

One of my friends at Carleton wrote her senior thesis on the tension between America's counter-insurgency tactics in Afghanistan, and our counter-narcotics tactics there. It was a good argument that I think deserves greater attention (I say that while I'm sure I'm not doing it full justice).

The link between the drug war and the war on terror is no mystery. Terrorists like drug money because its already an underground economy, so the transfer paths are already present in ways designed not to alert the authorities. But fighting the drug war makes allies of the terrorists and the drug producers -- the cartels, yes, but also the peasant population which grow the crops as their primary source of income.

This creates a problem. Basically, America's standard counter-insurgency operations revolve around the "winning hearts and minds" cliche. We try and stabilize regions, build institutions, increase the well-being of the locals, and help them get their goods to the market. If they like us, or even if they just are content with the status quo, the support for the insurgency withers away. Win for Team America.

Our counter-narcotics operations, by contrast, are based on eradication. We go in, and destroy the poppy crops. This means that our first exposure to many Afghan families is decimating their livelihoods, which is a problem on the whole hearts-and-minds metric. More specifically, rather than seeing Americans as a source for enhanced stability or a brighter future, locals instead rationally conclude that the only way to keep their crops safe is to insure that America or the central Afghan government doesn't get near them. That makes support for the insurgents skyrocket. And the insurgents reciprocate by protecting and promoting poppy cultivation. This dynamic has made it nearly impossible for anti-Taliban forces to crack the Taliban's hold on Southern Afghanistan, which, in addition to being their original base of support, is also a prime poppy region. The insistence on fighting the drug war in this way is making it impossible for the army -- and the Afghanistan government -- to do its job: unite the country, and stifle the insurgency.