Login | January 21, 2019

Reviewing the big stories at year’s end

Cases and Controversies

Published: December 29, 2017

As we put 2017 in the rearview mirror, here is my traditional year-end list of the most important ongoing stories in the intersection of law and politics.

The End of Gentlemen’s Agreements

Government has historically organized itself using both formal rules and informal, often tacit agreements that survive changes in personnel and majorities. The current Republican Congressional leadership has worked to undermine many of those agreements, as well as the very idea of keeping them.

When members object to legislation passed outside of regular order they are in large part arguing for following custom and practice more than rules, since the rules allow for their suspension.

Government by tacit agreement is not entirely benign. For example, one historical bargain across many enterprises has been “Continue to do good work and we will ignore your noxious treatment of women.” The #MeToo movement represented a fight against unspoken deals and unearth the misconduct that they have been hiding.

And the system by which members, including putative conservatives, would secure funding for constituent-friendly projects was accomplished primarily through a custom of behind-the-scenes logrolling. Because so many of these agreements are unspoken, they also go unexamined and unquestioned.

On the other hand, a number of such agreements functioned to temper the power of the majority party. For example, when Democrats ran the Senate and eliminated the filibuster for judicial nominees, then-Minority Leader Mitch McConnell reportedly begged Senator Harry Reid not to do away with the “blue slip” procedure which allows senators to veto judicial nominees from their home states.

As he has done many times, McConnell both upended a longstanding practice and further eroded the general understanding that each side would respect certain practices when it was in power. Sooner or later, Democrats will take their turn as majority party in the Senate. If they use their power to serve just desserts, Republicans will have no one but themselves to blame.

Defining Presidential Misbehavior

As the year closes, one attempt to hold the president to the Constitution’s Emoluments Clause has been dismissed by a court which found that such a question should be debated in Congress, not litigated in the courts.

Meanwhile, in Congress representatives have increasingly besmirched Special Counsel Robert Mueller, his investigation into the Trump campaigns ties to Russia and the entire FBI. And, a lawyer for President Donald Trump has suggested that the president by definition cannot obstruct justice.

Assuming that the Mueller probe survives long enough to issue reports, it remains to be seen whether links between the Trump presidential campaign or the president’s use of appointment or pardon powers can rise to the level of criminal conduct.

For example, we may well find that the idea of a presidential candidate accepting campaign help from foreign agents to be so far beyond the pale that we haven’t established its criminality with sufficient clarity.

On the other hand, Mueller might find that knowledge of serious misdeeds like Paul Manfort’s alleged money laundering extends far enough up the campaign organizational chart that the technical questions around collusion are academic.

Cracks in the Resistance

Until the Democratic victories in Virginia and Alabama, every lost special election brought recriminations from the left, saying that Democratic candidates lost because they were insufficiently progressive. In response, Berniecrats and social justice warriors get accused of playing “More woke than thou” at the expense of actually winning elections.

Ironically, this happens at a time when Democrats are far more unified than they have been pretty much in the history of the party. The fiscally conservative blue dogs and racially suspect Dixiecrats have long since moved across the aisle.

We live in a time when legislative checks on the president are both more important and less present than ever. The fight over progressive orthodoxy may be too parochial to affect the midterms. But at times this feels like the B-plot in an end-of-empire saga.

The Law and Emerging Technology

This term the Supreme Court is considering whether it can find a standard under which a majority can comfortably cabin partisan redistricting. As the decision approaches unfolds, it’s important to remember that both the unprecedented efficacy of redistricting and the prosed data-driven standard were made possible by increasingly powerful computers.

Similarly, the net neutrality rules recently overturned by the FCC were promulgated in response to new technology that enabled the kind of content-based discrimination that net neutrality proscribed.

From surveillance to monopolistic media platforms to hacking, technology is changing what is possible faster than the law can respond to it. It will always be thus, but if you hear someone say that we never needed a rule before, remember how quickly the landscape changes.