Trump Disqualification 3 Redux: Whether Trump Took an Oath to “Support” the Constitution Getting Some Attention

Last month I posted a series on the elements I saw as necessary to be established by those who seek to have Donald Trump declared to be disqualified from again serving as president under section 3 of the Fourteenth Amendment. This series was published in light of the pending petition seeking to exclude Trump from the Colorado primary ballot. (docket entries here)

My second element was whether Trump took an oath to “support” the Constitution given that the only oath of office he ever took was the presidential oath which requires one to “preserve, protect, and defend” but not “support” the Constitution. Recently I was told that I was one of the first, if not the first, to make this particular argument. That was rather surprising, but I have not been able to find it made earlier. Whether I am first or not, however, President Trump used it as part of a motion to dismiss the Colorado petition. (Other than timing, I have no evidence that Trump’s attorneys got the argument from me.)

So far, the petitioners do not seem to have responded to Trump’s invocation of that argument and it was not part of the judge’s Omnibus Ruling on Pending Dispositive Motions which was released last Friday.

Elimination of Saturday Print Edition the Beginning of the End for Star-Ledger Newspaper

Last month the Star-Ledger announced that December 30, 2023, would mark the last Saturday print edition of the newspaper. (Its sister publication, the Express-Times made a similar announcement.) In the perhaps not so distant future when the obituary for this print newspaper is written this event will mark a turning point.

To be sure, the economic and social forces that seem inexorably to be leading to this result started long ago and the loss of one day a week’s print newspaper is more effect than cause,1 but I believe that it marks the point where it became inevitable that local news for most of us, such as it is, will be available only on-line.

One must not forget that newspapers, as important to democracy and even noble as they want to believe they are, are also, at bottom, profit-seeking businesses. Businesses seek ever to grow larger and operate more efficiently. I see newspaper consolidation, both within the same market and then on a regional basis, as a significant factor in their current problems.

Imagine, in those halcyon days of yore, that many communities were served by multiple local newspapers, giving their customers all of the benefits flowing from competition, great service at low prices. Then imagine either the closing of the economically weaker newspaper or its acquisition by the stronger: the Newark Star-Eagle and the Newark Ledger combine to form the Newark Star-Ledger.

But the newspaper’s circulation is not limited to a single city. Its subscribers may include suburban residents who commute to work in the city or are just civically engaged. The newspaper may serve these customers by providing news coverage of events in their towns. To the extent that other newspapers already serve the local suburban market, they fail or are bought up. Then imagine that the newspaper sees the marketing advantage in omitting the geographic descriptor.2 The Newark Star-Ledger becomes the Star-Ledger.

This intra- and inter-municipal consolidation broadens the audience served, but also results in less focused local coverage. Reporters cease to attend local government meetings. Citizens lose access to information on what their local governments are doing on a day-to-day basis. Customers drop off.

Other media then take some of the remaining customers. The internet is a major factor today, but it started with radio and television. They lack the ability to provide the extensive, comprehensive news coverage I would like to see. A few minutes at the top of the hour, or a half-hour at dinner time (further reduced by commercials and including not just “real news,” but also sports, weather, and fluff, just can’t replace the newspaper.

In some way, the internet does not suffer these limitations, and it is not a foregone conclusion that it cannot serve as a worthy substitute, but it has yet to prove to be the case. Websites can be very splashy, but they need content. Their owners can pay reporters or seek volunteers. A few volunteers may be motivated and dedicated, but this is not a realistic business model. So, they have to pay reporters, which just recreates the problem in another medium.3

Jay Bohn

October 19, 2023

  1. It is part of a cycle where service-cutting and price increases meant to deal with the loss of subscribers only drives more people away, just like the postal service. ↩︎
  2. In this imagined past the reason for this is not dissatisfaction with anything about Newark, just the concern that the inclusion of one location’s name will run counter to the message that the publication is equally useful to suburban residents: “It’s not my local paper, I don’t live in Newark.” Many newspapers have eliminated reference to a specific community in their name. ↩︎
  3. I will admit that it seems likely to me that the cost of distributing news via a website is likely to be less than having to buy paper and ink, run a printing press and distribute physical newspapers, but I doubt that this difference is going to solve all the problems. ↩︎

Media Coverage of Blankenship Cert Denial Remarkable for Its (Mostly) Lack of Hyperbole

Over time tort law has become reluctant to provide compensation for harms to reputation caused by what people say or print.1 In New Jersey the statute of limitation for a defamation action is just one year from the date of publication. If the alleged defamatory matter is true, well that’s an absolute defense (although it has not always been). And only statements of fact, as opposed to opinion, are actionable.

Since the 1964 case of New York Times Co. v. Sullivan,2 the First Amendment has been interpreted to protect the news media from liability for defamatory falsehoods against public figures unless the statement was made with “actual malice,” either knowledge that the statement was false or reckless disregard as to whether it was true or false. The commercial media understandably view this decision as an important one.

It is not, however, without its critics, one of whom is Supreme Court Justice Clarence Thomas, who has been known to question the correctness of many prior decisions. In McKee v. Cosby, 586 U. S. ___ (2019), Thomas concurred in the denial of certiorari but called for the re-examination of Sullivan. He did the same thing last Tuesday in Blankenship v. NBCUniversal, 601 U. S. __ (2023).

Media reaction has been a bit more subdued than I might have expected. Yes, BNN Breaking, a news website of which I was previously unaware, called the denial of certiorari a “landmark decision” with “far-reaching implications, carving the path for future defamation cases and highlighting the crucial balance between freedom of the press and individual reputation.”3 But much of the other coverage, from, for example, CNN, The Volokh Conspiracy, and even the New York Times itself, has been sober, factual, and accurate.

Jay Bohn

October 16, 2023

  1. The generic term is “defamation,” with “slander” being the more specific term for spoken remarks and “libel” for things printed. ↩︎
  2. I won’t be looking there for informed legal analysis anytime soon. ↩︎

Latest Existential Challenge to CFPB Appears to Fizzle

Not every bad policy is unconstitutional. The case in point is the funding mechanism for the Bureau of Consumer Financial Protection established by the Dodd–Frank Wall Street Reform and Consumer Protection Act (P.L. 111-203), which prefers to call itself the Consumer Financial Protection Bureau (“CFPB“). When the 111th Congress created the agency, it tried to entrench its policy views against the possibility that a later (Republican) congressional majority or president would disagree with them. For example, as originally conceived, the agency is headed by a single director, removable by the President only for cause. Thus, when Donald Trump became President, he was not able to replace the Obama-appointed incumbent.1 This feature of the agency was declared unconstitutional in Seila Law LLC v. Consumer Financial Protection Bureau, 591 U.S. ____ (2020).

The CFPB is not funded through the annual (and usually dysfunctional) budget process. It gets to requisition the funding it wants (up to a limit that it has never actually reached) from the Federal Reserve. Opponents of one set of its regulations, those relating to payday lending, used the funding mechanism as one of the bases for a challenge to the regulations. CFPB v. Consumer Financial Services Assn. (22-448).2

One part of Article I, section 9, of the U.S. Constitution, called the Appropriation Clause, provides: “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law . . . .” The argument is that because the CFPB is not subject to the annual budget process like everyone else, its ability to call for money from the Fed is unconstitutional and this means it cannot validly promulgate the payday lending rules.

There’s really a lot wrong with this argument, starting with its disconnect from the actual text of the Appropriations Clause. There is no requirement of any annual process. Indeed, the only constitutional durational limit on an appropriation is the two-year maximum for an appropriation for the Army contained in Article I, section 8. Not every other part of the federal government goes hat in hand to Congress every year. These were two of the issues discussed at length at the Supreme Court oral argument on October 3, 2023 (audio | transcript). They didn’t even have time to get to the question of how the possible issue of the funding mechanism means that one particular set of regulations that it adopted is invalid.3

I don’t see the votes to sustain the Court of Appeals’ decision, so expect the CFPB to survive.

But not everything that is constitutional is good policy. This case generated a lot of amicus activity (non-parties who obtain permission to file briefs in the case), one of whom was former acting director Mulvaney himself. His brief, although somewhat tangential to the discrete issues to be decided, was replete with well-taken criticisms of the agency.

Jay Bohn

October 12, 2023

  1. In 2017 the first CFPB director, Richard Cordray, resigned as director in order to run for governor of Ohio. Immediately before leaving Cordray appointed CFPB chief counsel Leandra English to the vacant post of executive director with the expectation that she would continue as acting director. President Trump appointed his OMB director, Mick Mulvaney, acting director under different legislation. English was not successful in her subsequent lawsuit to claim the job. ↩︎
  2. The challengers actually won on this issue in the Court of Appeals, so the CFPB is the petitioner in the Supreme Court. ↩︎
  3. For more detail on the argument, if you don’t have time to read or listen to it yourself, read Amy Howe, Court divided over funding mechanism for consumer watchdog, SCOTUSblog (Oct. 3, 2023, 5:33 PM), https://www.scotusblog.com/2023/10/court-divided-over-funding-mechanism-for-consumer-watchdog/ ↩︎

Moran Editorial on Hudson County Prosecutor Shows Need for (and Failure of) Newspapers

Yesterday Star-Ledger Editorial Page Editor Tom Moran published a column entitled “Biden rejected Hudson County Prosecutor. Why Murphy Didn’t.”1 According to Moran, the indictment of Senator Robert Menendez states that Menendez recommended Hudson County prosecutor Esther Suarez to President Biden as U.S. Attorney for New Jersey because he believed that she would go easy on fraud charges against his co-defendant Fred Daibes. I won’t spoil the rest for you; the column is worth a read.2

It may not have been Moran’s intent, but the whole situation shows the critical importance of newspapers (and I mean print newspapers, not TV news and not even online newspapers) to inform the citizenry what its government is doing to it. The only way to fight political machines is to make sure that the people know what is going on.

While I’m certain that Moran would agree to the importance of newspapers, I am not convinced that he would admit they are doing a horrible job. They need to give us facts, not just spoon feed the opinions we ought to have.

Jay Bohn

October 8, 2023

  1. As usual, the online version has a slightly different title: “Biden rejected Hudson Prosecutor Esther Suarez. Here’s why Gov. Murphy didn’t.” (subscriber exclusive) ↩︎
  2. If you’re a subscriber of course. ↩︎

Sick Pay Is Abused Because No One Wants to Leave Money on the Table

NJ.com/The Star-Ledger has recently had a couple of pieces railing against “boat checks,” payments to retiring public employees for sick time accumulated but not used over many years of employment. As this editorial points out, it can be big bucks for the favored few and it could be prevented (but won’t be until public officials face significant economic consequences or jail time, but that’s for another rant.)

The same publications push for mandating paid sick leave (see here for example).1 Sick leave should only be used when the employee is sick (allowing for medical appointments and family members as well.) My position is that if the government is going to mandate that employers provide this benefit, it should punish employees who treat it as a vacation day that they can take without notice.

Sick leave is like insurance; everyone wants to get more in benefits than she pays in. No one wants to work more days than his colleagues just because he didn’t get sick.

Jay Bohn

October 5, 2023

  1. I wonder if the Star-Ledger mandates that benefit for the people who delivers its newspapers in its contracts with the distribution agent. Probably not. ↩︎

Happy New (Fiscal) Year

The federal government’s fiscal year begins October 1. Ideally, all of the annual appropriation bills will have been passed by then. That hasn’t been the case, however, for many years. Congress must pass a stopgap funding measure to prevent a shutdown, usually kicking the can down the road until there is a shutdown, or a compromise. The stopgap bills are “must pass” legislation, so there is often a chance for chicanery.

Members of both parties play a big game of chicken. In the end massive omnibus bills are passed that no one has time to read.

Not that I have a solution for this, but I would offer for consideration the idea of two-year budget cycles, so we don’t go through it every year.

Jay Bohn

October 2, 2023

Trump Disqualification 7: Final (For Now) Thoughts

By now we’re all a bit weary of this subject, but it could be quite important.

Since I began posting about the case in Colorado, another has been filed in Minnesota. It’s good to have these petitions filed in court rather than relying on individual election officials to make the initial decision.

The judge in Colorado plans to have a decision by the end of October to leave as much time as possible for appeals.

These cases have been filed in state court because there is a real question about whether anyone has “standing” to assert the claim in federal court. I understand why, but it is nonsensical that because the question is so important no one may have a sufficient personal stake to bring a claim for disqualification in federal court.

Sorry President Trump. The petitioners in these cases may be legally wrong (indeed, I do not believe that they are correct), but this is a valid question that should be resolved; it is not election interference.

There are those who believe that the decision should be made by the voters. I see their point, but the same can be said about any qualification for office. While you’re at it, repeal all term limits, which also interfere with voters’ freedom of choice.

Jay Bohn

September 28, 2023

Trump Disqualification 6: What Are Others Saying?

Now that I have completed my discussion of the elements that have to be established for Donald Trump to be disqualified under section 3 of the Fourteenth Amendment, here is a roundup of what others are saying:

CBS News “The Constitution’s disqualification clause and how it’s being used to try to prevent Trump from running for president,”

The Atlantic “The Constitution Prohibits Trump From Ever Being President Again” (paywall)

Baude, William and Paulsen, Michael Stokes, “The Sweep and Force of Section Three” (August 9, 2023). University of Pennsylvania Law Review, Vol. 172, Forthcoming , Available at SSRN: https://ssrn.com/abstract=4532751

Tillman, Seth Barrett and Blackman, Josh, “Sweeping and Forcing the President into Section 3: A Response to William Baude and Michael Stokes Paulsen” (September 12, 2023), 28 TEX. REV. L. & POL. (forth. circa 2023-2024), Available at SSRN: https://ssrn.com/abstract=4568771 

Eric Segall, The Difficult Legal and Political Questions Surrounding Trump’s Disqualification Under Section 3 of the 14th Amendment, Dorf on Law

Michael B. Mukasey, “Was Trump ‘an Officer of the United States’?” Wall Street Journal (paywall)

Steven Calabresi, “Trump Is Disqualified from Being on Any Election Ballots,” The Volokh Conspiracy (agreeing with the Baude-Paulsen article above)

Steven Calabresi, “President Trump Can Not Be Disqualified,” Wall Street Journal (paywall) (Professor Calabresi changes his mind based on the Mukasey article)

Steven Calabresi, “Donald Trump Should be on the Ballot and Should Lose,” The Volokh Conspiracy

Adam Liptak, “An About-Face on Whether the 14th Amendment Bars Trump From Office,” New York Times, September 18, 2023 (Prof. Calabresi’s change of position)

Akhil Reed Amar, “An Officer and a President,” Amarica’s Constitution (podcast) (which apparently considers my thoughts on whether the President is an “officer” “a genuinely stupid argument”)

David Orentlicher, “Why the 14th Amendment shouldn’t disqualify Trump,” CNN (focusing on whether the events of January 6 were an “insurrection” and concluding that they were not)

Jay Bohn

September 25, 2023

Trump Disqualification 5: Did Donald Trump “Engage” in the Insurrection?

The most interesting question, and the one that is most intensely factual, is whether Donald Trump “engaged” in what I agree was an insurrection on January 6. As with every other decision related to this issue, it cannot be based upon whether one wants or doesn’t want Trump to be disqualified from future office.

No one has found a smoking gun, clear evidence that President Trump planned with others for the mob to attack the Capitol. The Anderson petition argues that it would not have happened but for Trump’s “false claims of election fraud, coercive tactics, inflammatory rhetoric, mob mobilization, promotion of political violence, instructions to march on the Capitol, and decision to pour fuel on the fire rather than tell the mob to disperse.” Perhaps so. Perhaps, even, he is responsible in some (serious) sense, certainly his actions or inactions were a negligent (or worse) dereliction of duty, but the case is far from clear that this conduct means that President Trump “engaged” in the insurrection.1

I am not suggesting that President Trump had to enter the Capitol or otherwise personally commit violence. I only say that based upon what facts I know (which are limited to what has been reported by the professional media), it is not obvious that President Trump intended an insurrection.

But our legal system is often called to make judgments about what people intended. Ultimately one or more courts is going to have to hear evidence and make a factual determination. President Trump should be compelled to testify about the what and why of his conduct.

Jay Bohn

September 21, 2023

  1. Let me be clear. While President Trump had a duty to “See that the laws are faithfully executed” and to “preserve, protect, and defend the Constitution,” and these duties should have led him to take swift and decisive action to protect Congress from invasion by hostile forces. Trump failed miserably and his refusal to take action was, in my opinion, an impeachable offense. (However, as I have written before, the historical case that the Senate retained jurisdiction to try the impeachment after Trump’s term expired is weak.) ↩︎