Nancy Pelosi is Wrong–Congress is not co-equal to the president, the framers intended it to be superior.

House Speaker Nancy Pelosi got it wrong in recently declaring Congress as co-equal to the
president.  The reality is that the Constitution and its framers endorsed the concept of legislative  supremacy where Congress is supposed to be the dominate branch of government.   This supremacy  is the key to checking abuses of presidential power.
When Speaker Pelosi initially invited President Trump to deliver the State of the Union speech to Congress on January 29, she wrote: "The Constitution established the legislative, executive and judicial branches as co-equal branches of government, to be a check and balance on each other."
As the framers wrote the Constitution, they did so with the belief in legislative supremacy and the idea that Congress would be the most powerful branch of the government.  Separation of powers and checks and balances were critical features to the new constitution, but  branch co-equality was not.
Consider first the intellectual and historical circumstances surrounding the writing of the Constitution.  The American revolutionary war, as described in the Declaration of Independence, was largely about fear of the British monarchical executive power of King George III.  Much of the Declaration reads as a bill of particulars against the abuses of the king.  In arguing against monarchical powers, the framers were part of a long intellectual and historical tradition going back to seventeenth century England, if not to the Magna Charta,  arguing against the absolute power of kings and queens and in favor of a parliament. 
The British civil wars and the Glorious Revolution were about that.  The American founders were heavily influenced by British political philosopher John Locke who argued precisely in favor of parliamentary supremacy, against monarchical absolutism, and in favor of separation of powers.  Similarly, French political philosopher Baron de Montesquieu, who also  influenced the framers of the Constitution, too argued for separation of powers, but never asserted that the three branches of government would be co-equal.  Instead, he saw legislative authority as supreme and needing checks on it.
At the 1787 constitutional convention several of the framers argued the case that the legislature (Congress) needed to be checked because it was so powerful and, almost quoting Montesquieu verbatim,  could threaten the executive branch.  In part, the fear of Congress’ power was in part the basis of bicameralism (dividing the legislature in two to check its power) and giving the president a veto.
Further proof of legislative supremacy can be found in the text of the Constitution.  Article I which vests legislative power in Congress contains far more enumerated and implied powers than does Article II which vests executive powers in the president.  If a simple listing of the number of powers assigned to each branch means anything in terms of how to assess the relative powers of the two branches, by far Congress was more powerful.
But turn also to the Federalist Papers, considered by many including numerous Supreme Court Justices the definitive statement by Alexander Hamilton, James Madison, and John Jay regarding what the Constitution was supposed to mean.  In Federalist 39 Madison states:
But if the government be national with regard to the OPERATION of its powers, it changes its aspect again when we contemplate it in relation to the EXTENT of its powers. The idea of a national government involves in it, not only an authority over the individual citizens, but an indefinite supremacy over all persons and things, so far as they are objects of lawful government. Among a people consolidated into one nation, this supremacy is completely vested in the national legislature.

Additionally, in Federalist 48 Madison declares:
The legislative department derives a superiority in our governments from other circumstances. Its constitutional powers being at once more extensive, and less susceptible of precise limits, it can, with the greater facility, mask, under complicated and indirect measures, the encroachments which it makes on the co-ordinate departments. It is not unfrequently a question of real nicety in legislative bodies, whether the operation of a particular measure will, or will not, extend beyond the legislative sphere.

History and framers’ intent do not support the idea of co-equality.  Historian Arthur Schlesinger, Jr.  in his 1973 The Imperial Presidency made the same point, as did political scientist David Siemer in his 2018 The Myth of Coequal Branches: Restoring the Constitution’s Separation of Functions.   
What has happened over time is that both as a result of executive branch usurpation and congressional  acquiescence, the president has become too powerful.  Post-Watergate, there were efforts to correct this balance, but they lapsed. And as we have seen in the last few administrations, presidents continue to exercise too much power through executive orders and other actions,  and they need to be checked.  Congress reasserting itself as the dominant branch of the national government is one way to do that.

Counseling Justice: What Advice Could an Attorney have given to Martin Luther King, Jr. at the Edmund Pettus Bridge?

What should a lawyer have advised Martin Luther King, Jr. 50 years ago as he contemplated crossing the Edmund Pettus Bridge?  Posing this question as we witness the anniversary of this act of defiance and in the shadow of Ferguson, Missouri raise compelling questions not only about civil disobedience in America, but only about the connection between law and ethics and the role that attorneys have in advising their clients and in participating in the promotion of social justice.  I confess at the start I do not have all the answers, but the issues here are vexing.
    The connection between law and ethics and civil disobedience has deep roots.  There is Antigone’s burying of her brothers in defiance of the orders of Creon the King.  Socrates challenged Athenian democracy when it ordered him to stop philosophizing.  Jesus and early Christians confronted the Romans as they practiced their faith. St Augustine once proclaimed: “Lex iniusta non est lex”–an unjust law is no law at all.  Natural law believers contend that human law must be based on some natural laws or rules of justice, and thinkers ranging from St Thomas, Thomas Becket, to Lon Fuller have argued that there is an inner morality to the law.  At times human civil law is simply unjust, raising a compelling case for civil disobedience.
    American history is replete with cases of civil disobedience.  Colonists dumping tea into Boston Harbor was as much a political statement about independence as it was a protest against a tax they did not like.  Henry David Thoreau refused to pay his taxes, opting for jail as a protest against slavery and the fugitive slave laws.  And civil rights protestors and those opposed to the Vietnam War too defied laws they deemed unjust. 
    As philosophers John Rawls and Robert Dworkin  argued, the core of civil disobedience is disobeying those laws which you feel are unjust–not simply any law to make your point.  It made sense for Rosa Parks to refuse to sit at the back of the bus in that she was directly challenging the law that discriminated against her.  The Greensboro Four in 1960 sitting at a Woolworth’s lunch counter and demanding service as a protest against segregation laws also defied the law they wished to challenge.  Even King’s march across Edmund Pettus bridge was a legitimate challenge to segregation laws as its defiance was integrally connected to the racial discrimination they were challenging in 1965.  In all these cases breaking the law was meant to protest that law while at the same time highlighting a bigger cause. 
    The purpose of civil disobedience is to bring attention to the  injustice of the law with the goal being to bring about reform.  Because that is the goal, some contend civil disobedience should not be prosecuted.  Whether that is the case can be debated.  Will the civil disobedience be successful and is the cause is just are only a couple of issues to ask.  Will breaking the law send a sufficient message to the majority to change the laws, or will the civil disobedience lose part of its potency by knowledge that one is not risking prosecution, are tactical and political questions that do not lend themselves to simple answers.
    But what if King had come to an attorney in 1965 and asked whether he should break that law.  What should an attorney have done or said?  The contemporary ethical rules for lawyers known as the Rules of Professional Conduct were not in effect then, but assume they were, what do they permit?  The preamble admonishes attorneys to be zealous advocates for their clients while also recognizing that they have “a special responsibility for the quality of justice.”  One hopes that in advising a client one also promotes justice.  Moreover, Rules 1.16 and 3.3, as well as 1.6 collectively  and individually prohibit an attorney from assisting or advising a client to break the law.  Generally a lawyer’s first obligation is to counsel a client to conform to the law–to obey.  But lawyers may advise clients that a law may be unconstitutional but nonetheless also inform the client about the risks of challenging the law.  Similarly, a lawyer may advise a client contemplating civil disobedience about the consequences of disobeying the law and still represent the client afterwards.  Given this, there would have been no problem for an attorney advising King on his options, including what might happen if he crossed the bridge.
    But there are two additional issues here.  Should an attorney have told King to defy the law and march, and what about if the attorney marched with him?  These are tough matters of conscience and ethics.  On the one hand if the attorney thinks the segregation laws (or in this case an injunction) is unjust, should the lawyer counsel breaking the law?  One answer is that if the attorney truly believes the laws are simply unjust (but not illegal) it would be unethical from a lawyer’s ethics point of view to advise breaking the law.  More importantly, an attorney taking this position may not be acting as a zealous advocate for the client.  Such attorneys may be zealously advocating for a cause or they may be pressing their moral views upon a client, but they are not zealous advocates for their  clients.  But even if the moral views of the client and the attorney align, it may be the case that the attorney is no longer able to act primarily with the best interests of the client in mind–there may be a conflict of interest.  In the end, it is not about the attorney’s conscience when advising a client.  If an attorney believes that the law is unethical and wishes to civilly disobey, he or she may do so and cross the bridge, but  at that point one probably should no longer be advising King as an attorney.  The attorney is now a participant in the disobedience, not advising in the matter.  It may be difficult to cross the bridge and advise King at the same time.
    Conversely, is it ethical to advise clients to obey unjust laws?  Would it be wrong to advise disobeying laws connected with supporting an unjust society?  Should an attorney have advised Thoreau to pay his taxes?  For John Brown to raid Harper’s Ferry? Or today, would it be appropriate for an attorney to tell  protestors to block clinics because abortion is wrong?  Is it okay to advise illegal protests against Ferguson and racial discrimination in America?  No one says that lawyers should be indifferent justice; they should do their best to promote it.   But these issues raise a difficult problem of reconciling ethical rules that attorneys are supposed to follow with obedience to the law and ultimately the principles of a just society.  I am not sure what I would have done as  an attorney advising King in 1965.  I hope I would have gotten it right but it is not clear exactly what getting it right actually means.

From Selma to Stonewall: Same-Sex Marriage and the Legacy of Martin Luther King, Jr.

            By now it seems inevitable if not entirely predictable that by July this year same-sex marriage will be the law of the land in the United States.  Many will applaud that it is now legal across America and that the battle for equality is over.  Yet for all who draw the parallel between the battle for GLBT rights and civil rights, one can only hope that it does not end the same way, a war half won and facing serious backlash to this day in the South and across white America.

            On Friday the Supreme Court announced that it will review a Sixth Circuit Court of Appeals decision which had upheld a ban a same-sex marriage.  It accepted the case because other circuits had ruled contrary, creating a split in the law that the Supreme Court has to resolve.  This is the political science-law professor answer to why the case will be heard. The US is also a country divided, with 36 states and 70% of the population living in a world where same-sex marriage is legal, and where there is no definitive answer to whether the Constitution protects the right of same-sex couples to marry.  Federalism may be great for many things, but some constitutional questions demand definitive answers.

            While the Supreme Court has avoided it so far, the question before it will be whether the Constitution protects the right of same-sex couples to marry.  Justice Kennedy will write a 5-4 opinion saying that it does (unless Chief Justice Roberts joins in to make it 6-3 so he can control the scope of the majority opinion), capping a career where he has written all the major opinions (Romer, Lawrence, and Windsor) affirming GLBT rights.  Four years ago at a Supreme Court continuing legal education class I did at Reuters I predicted that Kennedy would write a June 5-4 opinion declaring that the Constitution protects same-sex marriage, and then he would announce his retirement.  I still think that will occur this year.  It is unlikely, contrary to what some social conservatives hope, that the Court will declare same-sex marriage contrary to the Constitution or that it will author any opinion invalidating same-sex marriages in any place in the United States.  Nor is it likely that the Court will simply say that the Constitution is silent on the issue and leave it to the states to decide.

            So then what?  Is the battle over?  For Republicans the decision would be great. As with immigration, letting someone else resolve a divisive issue upon which you are on the losing side of history and which costs you votes and future party vitality would be a blessing.  Making same-sex marriage legal across the country takes the issue off the electoral agenda.  But  that is not the end of the story. 

            The movie Selma is a powerful reminder of how far and not this country has come regarding civil rights for African-Americans.  The reason that movie is so powerful is not simply because of its reenacted and reminder of the violence that occurred at the Edmund Pettus Bridge and elsewhere in South and across the country during the 50s and 60s as King and others fought for equality.  It is also a powerful reminder, especially in light of Michael Brown and Eric Garner, that the struggle and the violence persists. A half a century after Selma racial discrimination persists.  It exists in school outcomes and incarcerations.  It exists in racial profiling,  income and wealth disparities, and in general attitudes about race, especially and still in the South.

            Many have drawn parallels between the civil rights movement for racial equality and the battle for GLBT rights.  Blacks had Selma, gays and lesbians Stonewall in New York.  Many draw parallels in the legal strategies between Thurgood Marshall, NAACP, and the Lamda and Human Rights campaigns.  Loving v. Virginia (where the Supreme Court struck down laws banning racially mixed marriages) is the direct precedent invalidating bans on same-sex marriage. There are similarities, but let us hope there are differences.  Fifty years later racism remains entrenched in America, especially in the South.  It is no coincidence that the core of the states today that oppose same-sex marriage are the same that fought Black civil rights the hardest, and where discrimination is still ugly.  These are also the states where reproductive rights are still  most fiercely opposed 40 years after Roe v. Wade, and where workers rights are weakest.

            The point is that passage of a law or the issuance of a Supreme Court decision does not end the battle.  Despite Selma, the 1964 Civil Rights Act, and the 1965 Voting Rights Act, much work needs to be done to bring racial equality to America.  The same will be true come later this year when Justice Kennedy writes his 5-4 opinion.  This is what we need to remember as we celebrate Martin Luther King’s birthday.

Members of Congress have an ethical and legal duty to fund the government

The political thinker and Irish Member to the British Parliament Edmund Burke once famously declared the duty of a legislator as between being a delegate and doing what constituents demand versus serving them by exercising one's best judgment.  But there is at least another duty that legislators have and that is a legal if not an ethical duty to comply with their own laws and to support the government they were elected to serve.

               The importance of stating this duty asks under what occasions, if any, are members of Congress permitted to disobey a law as a matter of conscience?  This is the question posed by House Republican efforts to repeatedly defund the Affordable Care Act (ACA or Obamacare) and force a partial governmental shutdown.  In effect, do legislators have a right to disobey and obstruct a law they do not support?  Do they have a right to civil disobedience?  While in general civil disobedience is an important act to test the constitutional values and justice of a society, this is not an option open to members of Congress, at least on this issue and for the reasons Republicans give.

               The relationship between law, justice, and civil disobedience has a long history in the west.  Sophocles' Antigone tells the story of a woman who buried a deceased brother in defiance of the king Creon who ordered her not to do so.  Her decision to defy was premised, in part, upon  concepts of justice and religious grounds, contending that her duty to disobey rested upon a higher law from the gods.  Similarly, Socrates’ trial and defense of his philosophizing invoked a duty to a higher law that justified defiance of human law. St. Augustine was one of the first Christian writers to argue that human laws that are unjust really are not laws.  St. Thomas defined a legal tradition that declared that human law must conform with God’s natural laws of justice, inspiring a generation of political theorists including John Locke who articulated a right to revolution against governments that violated natural rights and laws.  In all of these cases, civil disobedience invoked as an appeal to some higher law or rules of justice that dictated defiance of the law.

               The United States as a country is a product of civil disobedience.  The dumping of tea into the Boston Harbor in 1773 and the 1776 Declaration of Independence were acts of civil disobedience, providing the case for why some laws were unjust and should be ignored or defied.  The abolitionists,  including Henry David Thoreau and John Brown, so disliked slavery or the Fugitive Slave Act that defiance, going to jail, and even violence were viewed as proper acts of conscience.  And then of course Rosa Parks, Martin Luther King, Jr., and the many African-Americans who protested segregation by sitting at “Whites' only” lunch counters or who crossed the Edmund Pettus bridge also felt civil disobedience was an appropriate stance to take to challenge laws that thought were wrong.  In all of these cases, appeals to personal conscience, personal morality, or to religious or other values dictated the choices of individuals to defy the law.  But the question is, do legislators have this same right?  May they defy a law they do not support?  Do they have a right to shut down the government?

               Think first about the right of individuals to engage in civil disobedience.  Political theorist John Rawls argued that civil disobedience has a constitutional role in a just society.  It is an appeal to the shared values of a community, aiming to persuade a majority that it is wrong.   Civil disobedience is not an appeal to political expediency or self-interest. It is not a legal right, but an appeal to justice.  Citizens have a general duty to obey the law, but in some cases some feel that the law is wrong and must defy it.  But they do so first with the aim of changing the law and second, cognizant that they face legal retribution for their defiance.  The act of civil disobedience has the potential to change the law because one is willing to go to jail or be punished for one’s act.

               But private citizens are different than legislators and they may have less right to defy laws they dislike.  First, members of Congress not only have a general duty to obey the laws they have authored, but they have taken an oath of office to obey the law.  This current oath commands members of Congress to defend Constitution, accepting this obligation freely, without reservation, and with the help of God.  Such an oath imposes on them a special duty-above and beyond that of a private citizen—to obey laws.  Does that mean congressional members have no recourse to object to laws they dislike?  Of course not.  They can move to repeal the laws they dislike.  House Republicans have tried that 40 plus times when it comes to Obamacare.  The power to legislate and change laws gives them a tool that mere citizens lack.  While one can question the political reasons or wisdom for repeated votes to repeal the ACA, do that is the right of legislators.

 But there is a difference between trying to repeal a law one does not like and defying it.  This is what House Republicans are doing in seeking to defund Obamacare, pushing the government in to a partial shutdown, and perhaps risking a default on America’s debts come October 17.  For good or bad Obamacare is the law of the land—it has not been repealed and it has not been declared unconstitutional.  Members of Congress are under a legal and moral duty to fund laws and programs that they have authorized, even if personally they voted against the laws.  One of the most basic principles of American democracy is majority rule.  Majorities get their way so long as they do not violate the constitutional rights of minorities.  Majority rule settles decisions until such time as a majority reaches a different conclusion. Similarly, majority rule is the rule of Congress.  At some point votes and elections have settled issues and it is time to move on.  This is the case with Obamacare.

Moreover, Republican efforts to defund Obamacare are not premised upon shared constitutional values or principles of justice.  The decision is based on dislike of the law, Obama, or government in general.  Or it is based on political expediency--appealing to what their constituents want or what will appeal to their electoral base--and not on a sense of higher justice.  Or perhaps it is based on  private conscience or belief that the law is wrong.  All these may be great reasons to seek to repeal the law, but they are not proper grounds for refusing to perform one's specific duty to support a law that has been legally adopted in a democratic society.  Contrary to what she make think, Congresswoman Michele is not Rosa Parks--her reasons for opposing Obamacare are not based on appeals to justice and higher laws, but instead on personal and political expediency.

In general members of Congress do not have a right of civil disobedience to oppose laws they have a duty to uphold.  They are not like ordinary citizens exercising the right of civil disobedience.  Finally, legislators who object to the ACA do not have a right to defund Obamacare and hurt the rest of the country with a government shutdown.  In doing that they are not facing legal retribution for their actions as would ordinary citizens face by defying the law.  These members of Congress are taking a political stand, not an ethical one, and they do not have the right to do that.

Acting Legally, Behaving Ethically

The 1973 movie Paper Chase depicted the brutal image of law school as Professor Kingsfield (actor John Houseman) begins to interrogate students with the Socratic method.  Students are flustered and intimidated by questions, even the most simple ones. Bob Hudak was my 1L Contract law professor, old line and cut from the mold of Kingsfield.  Yet on the first day of class he turned to all of us and said there would be times when he would ask us questions and we would panic.  His advice was to take a deep breath, look us in the eye and then say what makes the most sense.  But more importantly he added, if that is not the right answer then there is something wrong with the law.  His comments forever resonated with me.
    What Hudak was talking about was about the relationship between the law and what political philosopher John Rawls would call our considered moral judgments.  Specifically, the law should in some way support or reflect our deeply held convictions about ethics and justice.  Hudak was not the first to argue that there should be a connection between law and morality.  St. Augustine contended that unjust laws are no laws at all.  Henry David Thoreau protested slavery laws by contending they were unjust, and Martin Luther King, Jr., similarly reached that conclusion when it came to segregation.  All three asserted that  unjust laws lacked a binding moral quality that often  justified civic disobedience.
    But there is a different facet to the relationship between law and morality and it comes in terms of doing the right thing.  It asks not when or whether one has a right to disobey an unjust law but instead whether the law empowers individuals to do what is ethically correct.  Often times individuals may wish to act ethically but are prevented by the law.
    Consider a classic scene from 1994 when the CEOS from the seven major tobacco companies  in the United States testified under oath before Congress.  When asked if cigarettes were unhealthy all said no.  We know they lied.  Internal documents from the tobacco industry proved that.  Yet they  have been legally require to lie.  Under state incorporation laws, they all were under an obligation  to serve the best interests of their business and maximize shareholder value.  Testifying under oath  at a time when thousands of law suits being filed, truthful testimony may have bankrupted their corporations. Lost would have been billions in shareholder value and pensions, untold jobs may have been lost, and many communities devastated.   I suggest to my students that in a perverse way, the law may have required them to lie to Congress.  Of course this is farcical, but it speaks to a gap between ethically what is the right thing to do and what the law may demand.
    But in may situations the law does not always encourage us to do what it ethically correct but instead create incentives to act unethically.  The legal norms of Nazi Germany are the most extreme example.  But across the board one can point to numerous less extreme examples.  For CEOs, decisions to outsource jobs to another country, close a factory and move to avoid pollution laws, taxes, or maximize revenues, or even to agree to a merger may not reflect what is in the best interests of a country, community, or people, but state corporate laws may demand it under threat of shareholder suits.  Public officials may be required to enforce laws they think are unfair, and those working in across many occupations may feel they have no choice but to act unethically because of  the possible legal sanctions that would follow if they were to do what society would regard as correct.
    Economist Milton Friedman most famous essay is his 1970 New York Times “The Social Responsibility of Business Is to Increase Its Profits.”  The title says it all.  Here he denies the capacity and obligation of businesses to act in a socially responsible fashion, instead arguing for the simple duty to maximize shareholder value.  The Friedman essay is one of the most read and influential articles in MBA programs across the United States.  It captures so well a narrow and wooden belief about what businesses should and should not do–and the law reflects those roles.  The law often fails to permit companies to be good corporate citizens and act in an ethical fashion.
    But why is all of this discussion of the law important here?  One of the most fascinating questions to ask is why good people and organizations do bad things?  Why do erstwhile or apparently ethical individuals suddenly act badly?  There are many reasons, but we should not forget the role that the law may play.  There may be circumstances where the law not only fails to support acting ethically but it also discourages it.   Case in point, the initial decision by the Obama administration not to read the accused Boston Marathon bomber his Miranda rights.  The law may have authorized the initial decision due to a Supreme Court created public safety exception, but had the FBI continued to press on with questioning without Mirandizing it would have run adrift of concepts of justice, fairness, and democracy that get dangerously close to the type of questioning many criticized the Bush administration as advocating. Maybe here the law did not necessitate doing the wrong thing, but it should not have facilitated it.
    The law affects behavior in a myriad of complex ways.  But it should not work to encourage unethical behavior.  This was the message that Bob Hudak gave all us law students. It is also a message we should remember when it comes to the construction and management of our society .