Latest Op-ED: Richmond Times: Why a Constitutional Convention is a REALLY Bad Idea
Many thanks to the folk at the RTD and the Scholars Strategy Network for working with me on this.
The threat of a convention is real. The country is perilously close to calling one–and no one seems to notice. This would precipitate chaos. There would be no winners. Read on here: https://www.richmond.com/opinion/their-opinion/guest-columnists/mark-rush-column-the-last-thing-we-need-right-now/article_b4b9459c-49ba-512a-9d21-6e923a926161.html This little cartoon from New York sums it up nicely.
Reading Supreme Court Decisions…and Reading About Them
June has passed. In an annual ritual that marks the beginning of summer, the Supreme Court released its final opinions on gerrymandering, cake decorating, union rights and so forth. The question that looms every year is whether people will read the decisions or read about them.
There is no question that most Court decisions are hardly bedtime reading. They can be long, technical treatises on very arcane or minute questions of law. Few people have actually read from beginning to end. Accordingly, it is vitally important to trust those in the media who would tell us what the decisions mean. Sadly, the media frequently lets us down. As a result, the newsreading public are misled and political discourse suffers.
A clear example of this occurred this term. In response to the Supreme Court’s decision in Sessions v. Dimaya, press and media outlets proclaimed that President Trump’s deportation program had been stymied by his most recent appointment to the Court, David Gorsuch.
Nothing could be further from the truth.
In fact, the most amazing (and disheartening) aspect of the Dimaya decision was the extent to which media outlets across nations and the political spectrum misleadingly hailed the decision as a defeat for Trump. No matter where you looked—the Guardian, Politico, the Washington Post, the National Review…the list goes on—it seemed that rump had suffered a defeat. The Weekly Standard did get the decision right. It seems, however, that few others took the time to read the Court’s—and particularly, Gorsuch’s—words.
It is true that the Court struck down part of the Immigration and Nationality Act (INA) because its text was too vague. It is therefore true that it overturned the decision of an immigration judge to deport James Dimaya despite his commission of several felonies. Finally, it is true that Justice Gorsuch joined a five-vote majority to render the decision. But, neither Gorsuch, nor Justice Kagan (who wrote the opinion) spoke out against the president’s deportation program.
Instead, the real target of this decision was Congress. The Court chastised Congress for writing a law that was so vague that judges were left to their own devices to decide whether a particular crime “involves conduct that presents a serious potential risk of physical injury to another.” Gorsuch and Kagan agreed that, depending on the jurist, virtually any crime could meet this definition. As a result, they based their conclusions on an earlier decision in which Justice Scalia came to the same conclusion: vague laws such as this violate Due Process as well as Separation of Powers.
They threaten Due Process because no one can really know what the law means. This is a formula for arbitrary government. They violate Separation of Powers because they invite judges and bureaucrats to do the work that Congress should have done when it writes a law: use clear language to guide those who must interpret and apply the law.
In fact, Gorsuch took pains to emphasize the limits of the decision. “Vagueness doctrine,” he said, “represents a procedural, not a substantive demand.” As a result, the legislature may act “toward any end it wishes” so long as it does so “with enough clarity that reasonable people can know what is required of them and judges can apply the law consistent with their limited office.” Accordingly, the Court cast no judgment on the deportation agenda; it simply asked Congress to do its job the way any accountable branch of the government should.
In the end, it was a misrepresentation to say that the Court challenged the President. The Court emphasized the importance of clear language so that those who read laws can understand and interpret them accurately. Those who misleadingly suggested that the Dimaya decision was about Trump might do well to read the decision carefully. They would be reminded of the importance of nonarbitrary government and the responsibility of the press to inform citizens accurately so that they can hold the government accountable.