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Yesterday, the White House issued a memorandum on cutting federal grants to “anarchist jurisdictions,” by which they seem to mean local governments that don’t pursue the sorts of aggressive law enforcement policies the administration favors. In and of itself, the memorandum is long on rhetoric condemning supposed “anarchy,” but short on actual action.

It could be that the document is mostly a PR move intended to stoke Trump’s base, and bolster the “law and order” theme of his presidential campaign. If the administration does end up actually trying to condition federal grants on adherence to the policies outlined in the memorandum, it would be yet another attack on federalism and separation of powers, similar to that resulting from Trump’s attempts to deny federal grants to “sanctuary cities” unless the latter began assisting federal deportation policies.

Unlike the executive order and Justice Department policies targeting sanctuary jurisdictions, the new memorandum on “anarchist” jurisdictions doesn’t actually order any denial of federal funds or impose any new conditions on grant recipients. Rather, it merely instructs the Director of the Office Management and Budget (OMB) to, within 14 days, “issue guidance to the heads of executive departments and agencies (agencies) for each agency to submit a report to the Director of OMB detailing all Federal funds provided to Seattle, Portland, New York City, Washington, D.C., or any components or instrumentalities of the foregoing jurisdictions.” In addition, “[w]ithin 14 days of the date of this memorandum, and updated as appropriate but no less than every 6 months thereafter, the Attorney General, in consultation with the Secretary of Homeland Security and the Director of OMB, shall publish on the Department of Justice website a list identifying State and local jurisdictions that have permitted violence and the destruction of property to persist and have refused to undertake reasonable measures to counteract these criminal activities (anarchist jurisdictions).”

Among the policies used to identify supposed “anarchist jurisdictions” are factors such as “whether a jurisdiction disempowers or defunds police departments,” whether it “unreasonably refuses to accept offers of law enforcement assistance from the Federal Government,” and whether it bars “the police force from intervening to restore order amid widespread or sustained violence or destruction.”

Significantly, however, the memorandum doesn’t actually identify any particular federal grants that are to be cut or denied until such time as the jurisdiction in question ends law enforcement policies the White House disapproves of. The only actual mandate the memorandum imposes is a requirement that OMB and the Justice Department require a “review” of federal grants to several cities, and create a list of “anarchist” jurisdictions based on the vague criteria described above. It is far from clear what, if any, federal grants the administration would deny the offending “anarchists.”

If the administration ultimately does identify specific federal grants that it wants to cut unless the targeted jurisdictions adopt law-enforcement policies that are more to the White House’s liking, it could end up raising the same sorts of federalism and separation of powers issues as the administration’s campaign against sanctuary cities. In that field, the administration has suffered a long series of defeats in court because the conditions the administration sought to impose on federal grants either were never authorized by Congress (which controls the power of the purse), infringed on state and local autonomy under the Constitution, or both. The same thing could easily happen here if the administration once again tries to make up its own spending conditions in order to force states and localities to do its bidding. Trump has attempted to do the same thing on a variety of other issues, including trying to use the threat of funding cutoffs to prevent states from expanding vote-by-mail opportunities in the upcoming presidential election.

If the administration succeeds in these efforts, it would set a dangerous precedent enabling the president to circumvent congressional control over federal spending, and bully states and localities into submission on a wide range of issues, that go far beyond immigration, law enforcement, or voting. Conservatives who may cheer Trump’s attacks on “anarchist jurisdictions” and sanctuary cities may not be so happy if Joe Biden or some other future Democratic president uses the same sweeping powers to force state and local government to adopt left-wing policies on gun control, education, environmental regulation, and much else.

Conservatives and others who value local and state autonomy should be wary of federal efforts to impose uniform policies on such quintessentially local issues as combating street crime. If even that must be brought under the control of the White House, it is not clear what, if anything, would be left to the states.

More generally, both right and left have reason to fear the kind of increasing concentration of power in the White House that would occur if the president had a free hand to control the federal budget and use it to pressure states and localities on a wide range of policies. That would both threaten valuable diversity in state and local policy, and undermine one of the best ways to mitigate the dangerous political polarization between “red” and “blue” states.

Condemning the administration’s approach here does not require us to approve of all the law-enforcement policies adopted by liberal Democratic localities, some of which have indeed been overly tolerant of violence and rioting. As I have emphasized in the past, we should be able to take strong action to curtail police abuse and racial profiling, while simultaneously also rejecting rioting, looting, and private violence. The latter are both intrinsically evil and likely to undermine the cause of ending racial discrimination and other unjust law enforcement practices. I’m also skeptical of indiscriminate “defunding” of police, even though there are beneficial ways to cut funding and limit police activity in a more targeted fashion.

But the sins of some liberal local governments do not justify White House efforts to undermine federalism and separation of powers. Nor do they justify abuses by federal law enforcement agencies, such as those we recently saw in Portland. It would be better if the White House stuck to actual responsibilities of the federal government, and left local law enforcement alone, except in cases where the latter violates constitutional rights or properly enacted federal law.

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Apropos of Eugene’s post, I have long wondered whether constitutional law casebook editors will need to expurgate a passage from Justice Jackson’s famous Youngstown concurrence:

I did not suppose, and I am not persuaded, that history leaves it open to question, at least in the courts, that the executive branch, like the Federal Government as a whole, possesses only delegated powers. The purpose of the Constitution was not only to grant power, but to keep it from getting out of hand. However, because the President does not enjoy unmentioned powers does not mean that the mentioned ones should be narrowed by a niggardly construction. Some clauses could be made almost unworkable, as well as immutable, by refusal to indulge some latitude of interpretation for changing times. I have heretofore, and do now, give to the enumerated powers the scope and elasticity afforded by what seem to be reasonable, practical implications instead of the rigidity dictated by a doctrinaire textualism.

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UC Berkeley professor Michael Eisen has been involved in a number of initially-crazy-sounding projects over the years, an alarming number of which (open access to scientific publication (PLOS), home genetic sequencing (23andme), plant-based “meat” (Impossible Foods) have actually borne much fruit.  Here is his latest—he himself calls it “disturbing and terrifying.”
Eisen’s idea is a variation on the “National Popular Vote” (NPV) scheme.  For those of you unfamiliar with how NPV works, the basic idea is as follows (and many more details are available at the NPV website here):

A State—let’s call it New York—enacts a statute with two basic provisions:

1.  The Governor shall appoint, as presidential electors, the slate of electors submitted by the presidential candidate who receives the largest number of votes cast nationwide in the presidential election. [Currently, of course, it is the candidate winning a plurality of votes cast in NY who gets all of NY’s electors.]
2. Paragraph (1) shall only come into effect if and when a sufficient number of other States enact laws with the identical Paragraph (1) provision to cumulatively account for 270 (or more) electoral votes.

You have to admit, whatever your position might be on whether the Electoral College is or is not a useful institution, that it’s a devilishly clever scheme. Without the need for a constitutional amendment, but relying instead on the power granted to the States in Article II to “appoint [electors] in such Manner as the Legislature thereof may direct,” it would guarantee that the Electoral College would elect the winner of the nationwide popular vote, once the 270-electoral-vote threshold were met.

The NPV statute has been enacted into law in 16 jurisdictions, accounting cumulatively for 196 electoral votes (CA, CO, CT, DC, DE, HI, IL, MA, MD, NJ, NM, NY, OR, RI, VT, WA), leaving it 74 electoral votes short of the trigger. In nine additional states with 88 additional electoral votes (AR, AZ, ME, MI, MN, NC, NV, OK, VA) the NPV statute has passed in one house (but not the other) of the state legislature.

One obstacle which makes it difficult for the NPV to achieve the required level of support is the diminishing incentive for the “swing states”—the states that, in the current scheme, hold virtually all of the power in the presidential election (OH, PA, WI, FL, MI, VA, NC)—to join in the NPV scheme. The swing states are “swing” precisely because, unlike CA and AL and NY and KS and …, their electorates are pretty evenly divided between the two parties; because the NPV initiative is widely—though perhaps wrongly—seen as favoring the “blue” team at the expense of the “reds,” the political battle over the NPV, and the political opposition to joining with the NPV States, are likely to be particularly intense in these swing states.

Moreover, precisely because these are the States that effectively hold all the power in the current scheme, they might well be unwilling to give up that power by joining the NPV coalition. Votes, and voters, in the swing states matter a lot more, in the current presidential election environment, than the votes and voters in NY or AL or CA or KS.  The presidential candidates—both of them—will be paying an enormous amount of attention to the voters in swing states. The issues about which swing state voters are concerned will be front and center in the campaign—and the hundreds of millons, if not billions, of dollars that the candidates will be pouring into their states during the campaign, ain’t bad, either.

And if you think about it, as the NPV gets closer and closer to the 270 trigger, the “swing states” who don’t join in get even more power (and a bigger slice of those advertising dollars) than they have now.  Imagine if, say, PA (20 electoral votes), MI (16), and VA (13) had enacted the NPV statute.  The total would now stand at 196+49=245—a mere 25 votes short.  The voters in these states (PA, MI and VA) would now be just like voters in NY and AL; their votes would count (for purposes of the national popular vote), but they would no longer get any special additional weight from having come from a “swing state.” On the other hand, the non-joining swing states—FL, OH, WI, NC—become even swing-ier than before, with even more attention being paid to corralling their contested electoral votes than before.

If you are a supporter of the NPV, this is not a great position to be in; as the network of joining states gets larger, those states that have not yet joined are under more of a disincentive to join. It’s a kind of negative feedback, and negative feedback’s not the best way to grow a network.

Enter Mike Eisen.  Here’s what he’s proposing as a substitute for the current NPV statute:

1.  The Governor shall appoint, as presidential electors, the slate of electors submitted by the presidential candidate who receives the largest number of votes cast, in the aggregate pool of voters in those states (the “Joining States”) that have enacted a paragraph identical to this one.
2.  Paragraph (1) shall only come into effect when the cumulative electoral votes in the Joining States equals or exceeds 270.

Notice how this works.  The States enacting this revised NPV law would be agreeing (once the 270 trigger is achieved) to pool their votes with all the other States that have signed onto this scheme, and to give all of their electoral votes to the candidate who receives a plurality of the pooled votes from those Joining States.

And notice that if this statute ever were to come into effect because the 270-vote threshold was met, it would render the votes in the non-joining states completely worthless; votes from non-joining States would play no part whatsoever in determining whom the Electoral College would select as the next president.

That is, if we were to reach the 270-Electoral-vote trigger point, the Joining States would pool their votes together in a pile, determine the candidate who received the most votes in the entire pool, and then they would all designate their Electors to vote for that candidate.  And, under the premise that we had reached the 270-vote trigger, that would be sufficient to elect that candidate president no matter what happened in the other non-Joining States.

I think you can see why Prof. Eisen called this “disturbing.”  Votes in non-Joining states no longer count at all in determining who gets to be president. Under this scheme, if Ohio does not Join and agree to pool its vote with other Joiners, it runs the risk that enough other States will Join to make Ohio voters completely irrelevant in the presidential election.  

And that risk—the risk that the voters in your State will be rendered a total irrelevance the moment the 270 threshold is met—intensifies as the Joiners get closer and closer to 270.

Voila! Positive feedback; the more States that Join, the greater the incentive for non-Joiners to Join, which adds more States to the pool, which increases further the incentive for non-Joiners to Join, and so on.

Could this actually work?  Is it really constitutional?

I think the answer to both questions, surprisingly, is “yes.”  Neither is simple, so I’ll save my more detailed thoughts for subsequent postings, and just make these observations:

Whether it would work depends a bit on what it means to “work.”  If your goal is to create a system under which the winner of the popular vote gets to be president, I think this will do it for you.  Notice that under this scheme any non-Joining State can, at any time, enter the ranks of the Joined States. So suppose that Ohio refuses to Join.  If the statutory trigger is activated, it faces a simple choice: Watch the next presidential election from the sidelines, with your voters playing no role in determining the outcome, or Join so that Ohioans’ votes count for something. And the same choice would be facing Nebraska, and Alaska, and any other non-Joiners.  Indeed, I think this little statute has an almost unstoppable dynamic behind it, and that it would—possibly quite quickly—become law in all states; what State would not want its voters to have any say at all in who becomes the next president?

And there you’d have it; the “pool” would then consist of the entire country, each State’s electors would be pledged to the candidate winning the nationwide pooled popular vote, and that candidate would be elected—unanimously—by the Electoral College. So if that’s your goal, this will, I think, get you there.

As for the constitutional question(s), the Supreme Court just this past term (in the “faithless elector” cases, Chiafalo v. Washington and Colorado v. Baca) strongly, and unanimously, re-affirmed the broad, plenary authority given to the States in Article 2 to appoint electors in any manner they see fit. As I read these and other precedents on this matter, NY is perfectly free to declare, in its election law, that it will appoint electors in accordance with the popular vote count in New Jersey; it would be odd if it did so, but it would not be unconstitutional.  And if NY can do that, why can’t it say that it will appoint electors in accordance with the popular vote count in NY+NJ+any other State that wants to be in the common pool.

State power in this regard is, presumably, subject to the other binding provisions of the federal constitution; NY cannot declare that it will only appoint white males as electors, for example.  But I’m having trouble seeing how Eisen’s proposal runs afoul of any superseding constitutional provision.  I suppose that an Ohioan could assert that the scheme violates the principle of “one person/one vote” under the Equal Protection Clause, by causing his/her vote to count for nothing in NY’s determination of who to appoint as an elector while a New Jerseyan gets a say in the matter. But does an Ohioan have standing to challenge NY election law? And in any event, it’s hard to see how an Ohioan somehow has a constitutional right to have his/her votes counted by NY; it’s not as though under the current, and presumably constitutional, scheme NY takes Ohioans’ preferences into account when choosing its electors—so how can an Ohioan contend that this “right” was violated by the NPV scheme?

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The U.S. Court of Appeals for the 9th Circuit yesterday ruled that the National Security Agency’s bulk collection of Americans’ telephone records was illegal and probably unconstitutional. For Democrats who see Donald Trump as an unprecedented threat because of his disregard for the Constitution, the decision is a useful reminder that sacrificing civil liberties on the altar of national security is a bipartisan rite.

The NSA program, which was revealed by former NSA contractor Edward Snowden in 2013, indiscriminately collected telephone “metadata”—indicating who was calling whom and how long they talked—about millions of Americans for years. The program, which the USA FREEDOM Act ended in 2015, began under George W. Bush but continued during Barack Obama’s administration, which concealed its existence, then speciously defended its legality and usefulness.

“The administration has now lost all credibility,” The New York Times editorialized after Snowden’s revelations. “Mr. Obama is proving the truism that the executive will use any power it is given and very likely abuse it.”

James Clapper, the Air Force general whom Obama appointed as director of national intelligence, epitomized the administration’s dishonesty by blatantly lying to a Senate committee about the NSA’s data collection practices three months before the phone record database was revealed, then repeatedly lying about lying. In his latest incarnation, Clapper is a vociferous Trump critic who blames Russia for the election of a president he despises as a man “whose first instincts are to twist and distort truth to his advantage.”

Further scrambling the conventional understanding of which major party is more concerned about civil liberties, Obama tried to prosecute Snowden, while Trump, who in 2013 called Snowden “a traitor” who “should be executed,” last month suggested he might pardon the NSA whistleblower. Another interesting point Democrats might prefer to overlook: While questioning the constitutionality of the NSA’s metadata dragnet, the 9th Circuit cites Supreme Court Justice Neil Gorsuch, a Trump nominee who is a more reliable defender of the Fourth Amendment than the judge Obama wanted to appoint.

I am not for a moment suggesting that Trump’s new respect for Snowden, which is probably driven by his pique at “deep state” foes like Clapper, or his choice of Gorsuch, which was based on what he thought conservatives wanted, reflects civil libertarian principles (or any principles at all). But as this case shows, Trump’s polarizing personality tends to obscure the deeper problem of powers that tempt presidents to violate our rights, regardless of their personal traits, avowed principles, or party affiliation.

The prosecution that led to the 2nd Circuit’s decision involved four Somali immigrants who were convicted in 2013 of sending money to the terrorist group al-Shabab. While the ruling does not affect those convictions, it addresses the legality of the NSA’s phone record database, which supposedly played a crucial role in the case.

I say “supposedly” because that is what federal officials claimed while defending the NSA’s program. Then-FBI Deputy Director Sean Joyce, for example, told a congressional committee the database generated a tip that allowed the bureau to reopen its investigation of the suspected al-Shabab supporters. The 2nd Circuit rightly discounts such statements, which were part of a fact-deficient attempt to portray the program as an essential weapon against terrorism.

“The metadata collection, even if unconstitutional, did not taint the evidence introduced by the government at trial,” the appeals court says. “To the extent the public statements of government officials created a contrary impression, that impression is inconsistent with the contents of the classified record.” That’s a polite way of saying that Obama administration officials misled the public about the program’s value.

What about its legality? As the U.S. Court of Appeals for the 2nd Circuit did in 2015, the 9th Circuit makes short work of the government’s argument that the program was authorized by Section 215 of the PATRIOT Act, which allowed secret court orders “requiring the production of any tangible things (including books, records, papers, documents, and other items) for an investigation…to protect against international terrorism.” Such orders were supposed to be based on “a statement of facts showing that there are reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation.”

Using the same needle-in-a-haystack argument that was deployed by the Obama administration, the government’s lawyers maintained that everyone’s phone records are “relevant to an authorized investigation” because searching them might reveal useful clues. “Although admittedly a substantial portion of the telephony metadata that is collected would not relate to [terrorism suspects],” they said, “the intelligence tool that the Government hopes to use to find [investigation-related] communications—metadata analysis—requires collecting and storing large volumes of the metadata to enable later analysis.” According to the government, “all of the metadata collected is thus relevant, because the success of this investigative tool depends on bulk collection.”

The 2nd Circuit said “such an expansive concept of ‘relevance’ is unprecedented and unwarranted,” and the 9th Circuit concurs. The government’s interpretation “essentially reads the ‘authorized investigation’ language out of the statute,” it says. “We hold that the telephony metadata collection program exceeded the scope of Congress’s authorization.”

As for the program’s constitutionality, the government argued that it was covered by the third-party doctrine, which says people do not have a reasonable expectation of privacy regarding information they voluntarily divulge to others (in this case, the phone companies from which the NSA collected its metadata). The Supreme Court invented that doctrine in United States v. Miller, a 1976 case involving bank records. Three years later, the Court invoked the doctrine in Smith v. Maryland, which involved a warrantless “pen register” that police used to record the numbers dialed by a robbery suspect over the course of a few days. Although that situation is rather different from the collection of personal information about millions of people for years, the government argued that Smith shows the NSA’s program was consistent with the Fourth Amendment.

“There are strong reasons to doubt that Smith applies here,” the 9th Circuit says. “The distinctions between Smith and this case are legion and most probably constitutionally significant….Society may not have recognized as reasonable Smith’s expectation of privacy in a few days’ worth of dialed numbers but is much more likely to perceive as private several years’ worth of telephony metadata collected on an ongoing, daily basis—as demonstrated by the public outcry following the revelation of the metadata collection program.”

The Supreme Court in Smith drew a distinction between the “contents” of a phone call and information about numbers dialed, deeming the latter much less sensitive. But “in recent years the distinction between content and metadata ‘has become increasingly untenable,'” the appeals court notes. “The amount of metadata created and collected has increased exponentially, along with the government’s ability to analyze it.”

The 9th Circuit emphasizes how revealing this information can be, quoting former NSA General Counsel Stewart Baker. “Metadata absolutely tells you everything about somebody’s life,” Baker said. “If you have enough metadata you don’t really need content.”

The appeals court illustrates that point with a couple of examples: “A woman calls her sister at 2:00 a.m. and talks for an hour. The record of that call reveals some of the woman’s personal information, but more is revealed by access to the sister’s call records, which show that the sister called the woman’s husband immediately afterward. Or, a police officer calls his college roommate for the first time in years. Afterward, the roommate calls a suicide hotline.”

And that’s just for a start. “Metadata can be combined and analyzed to reveal far more sophisticated information than one or two individuals’ phone records convey,” the 9th Circuit notes before quoting a brief filed by the Brennan Center for Justice: “It is relatively simple to superimpose our metadata trails onto the trails of everyone within our social group and those of everyone within our contacts’ social groups and quickly paint a picture that can be startlingly detailed.”

The 9th Circuit notes that the Supreme Court expressed similar concerns in Carpenter v. United States, the 2018 case in which the justices said the third-party doctrine does not apply to cellphone location data. Furthermore, the appeals court says, “numerous commentators and two Supreme Court Justices have questioned the continuing viability of the third-party doctrine under current societal realities.”

Here is where Gorsuch comes in. He dissented in Carpenter, not because he thought cops should be allowed to collect cellphone location data without a warrant but because he thought the third-party doctrine should be scrapped entirely, along with the malleable “reasonable expectation” test. Nowadays, Gorsuch noted, people routinely store sensitive information—including “private documents” that, “in other eras, we would have locked safely in a desk drawer or destroyed”—on third-party servers. According to the reasoning of Miller and Smith, he said, “police can review all of this material, on the theory that no one reasonably expects any of it will be kept private. But no one believes that, if they ever did.”

The 9th Circuit did not reach a firm conclusion about the constitutionality of the NSA’s program, because it was not necessary to decide whether the convictions should stand. But its observations show how readily the government invades our privacy on the flimsiest pretext, blithely dismissing constitutional concerns when they prove inconvenient. That alarming tendency cannot be corrected by switching out one politician for another.

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