Monday, June 4, 2018

Pardon Me, Mr. President -- The Sequel

President Trump's Assertion of Self-Pardon Has No Basis In Law

This morning the President tweeted that he has the "absolute right to PARDON" himself, citing "numerous legal scholars."

I don't think so. In November 2016 I posted on the pardon power. Here is the relevant portion of that post:
Although the pardon power is extremely broad, I do not see it extending to Presidents pardoning themselves. While the text of the Constitution does not expressly bar such a "self-pardon," and some have argued to the contrary (according to reports, Nixon considered pardoning himself), I believe that the better argument is that self-pardons are barred. Fundamentally, it is hard to believe that the Framers, with their checks and balances approach and a number of restrictions on self-dealing, intended that the President could pardon himself. It flies in the face of the logic and structure of the Constitution and the separation of powers. (By the way, English legal history up to the Founding era provides no help, because the Crown would not have needed to consider self-pardons based on the legal maxim "rex non potest peccare," which translates to "the king can do no wrong.") 
So, just for the sake of argument, let us assume that since the text is silent this means self-pardons are allowed. Do we then extend such reasoning -- that the President can use his extensive Executive powers to benefit himself -- to a whole host of other powers where a restriction is not expressly spelled out? For example, under the Appointments Clause, could the President appoint himself a Supreme Court Justice (or a judge of any federal court) and still be President? While not barred by the text, the answer logically must be of course not, for there then would be no separation of powers between the Executive and the Judiciary. Similarly, the President earns only what is set as his compensation, and cannot receive any other salary or compensation from the United States or any of the States. Would those who think a self-pardon is acceptable view this provision -- which states that the amount cannot be increased or decreased during the President's term but says nothing about who sets it or how it is to be paid -- as allowing the President to set his own salary, or pay himself directly from the Treasury without Congressional appropriation? I do not think so. Congress has to set the salary and appropriate the money for it pursuant to Article I's requirement that, "[n]o Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law. . .." (Indeed, in the First Session of Congress they did just that, with an annual salary of $25,000 payable quarterly out of the Treasury.) Finally, the entire notion of a self-pardon flies in the face of the legal maxim "nemo judex in sua causa," which translates to "no man shall be a judge in his own cause." 
Here is a link to the original post:  Pardon Me, Mr. President: The Presidential Pardon Power

Monday, January 8, 2018

"Freedom for the Thought That We Hate" -- Or What Freedom of Speech Really Means

The First Amendment Protects All Speech and Not Just What is Popular

It seems everywhere we turn these days there is anger and frustration being expressed against individuals or groups that are espousing words and ideas deemed by others somehow to be wrong, disrespectful, or hurtful. In other cases a mere failure to agree with a popular belief becomes the object of scorn. It is happening at football games when players take a knee during the Star Spangled Banner, on college campuses when speakers are shouted down or physically attacked, and in numerous other settings. 

The concept of freedom of speech in the United States has both normative and legal aspects. The normative aspect postulates that free speech is a critical tool for self-governance, as well as a way to promote individual liberty and freedom -- all concepts enshrined in our founding documents and given true meaning over the last several decades. The legal aspect, which developed relatively slowly in our history, is that courts will limit government efforts (of its own accord or to aid other citizens) to ban or suppress the content of speech or otherwise burden or punish expression, which includes the right not to speak.

My goal in writing this post is not to take sides on any specific issues but rather to share some thoughts about a framework for appreciating and understanding what I see as the true meaning of freedom of speech, its essential role in maintaining a free and open society, and why each of us needs to be concerned about the current assault on free speech -- regardless of which side you take on any given issue. 

As you read on, keep in mind the following questions. If the First Amendment was adopted only to protect views on which a majority of people agree, then why do we even need it? And, borrowing from Noam Chomsky, if you don't believe in freedom of speech for people and ideas you despise, do you really believe in it at all?