[Today we welcome our colleague Reilly Stephens as our newest contributor here at LDB. Our agreement with him states that he will be providing insight and analysis of law, politics, and whatever else we demand, except for modern interpretive dance and ERISA, about which he knows nothing…he was particular about those last two for some reason.
–The Management, LDB.]
The current Kulturkampf regarding the dismissal of FBI Director James Comey once again suggests that we are not mature enough a species to be playing with the toys we’ve been given. Removal of an inferior federal official by the President was immediately declared, inter alia, a “coup,” a “constitutional crisis,” and the first step in the rise of modern American authoritarianism (a step we seem to be putting our jackboot down on fairly regularly these days, one wonders where the second one comes).
These were not the idle ravings of the unwashed, these are the reactions of such august sinecures as The Atlantic, Gentleman’s Quarterly, and the college blog formerly known as The New Republic Magazine. That the President’s actions were in fact troubling does not change the reality that these periodic meltdowns have become a sort of weekly church attendance for the type of people who, one imagines, had found such observance missing from their lives until now. And so it is presently the case that our commentariat is completely incapable of processing important information into coherent analysis.
Some time ago, Mother Jones’ Kevin Drum captured our current predicament quite well:
The internet makes dumb people dumber and smart people smarter. If you don’t know how to use it, or don’t have the background to ask the right questions, you’ll end up with a head full of nonsense. But if you do know how to use it, it’s an endless wealth of information. Just as globalization and de-unionization have been major drivers of the growth of income inequality over the past few decades, the internet is now a major driver of the growth of cognitive inequality. Caveat emptor.
Drum might well have been thinking of his colleagues as being on the beneficial side of this particular bell curve, but that conclusion is becoming less obvious. As others more qualified than I have pointed out, it’s odd to talk of a “constitutional crisis” when the constitution, well, hasn’t actually been violated.
David Hume long ago argued that it was impossible to determine an “ought” from an “is.” I will leave it to the philosophy majors to digest that particular chestnut, but it is certainly true that you cannot derive an unconstitutional act from a merely imprudent one. Mr. Comey’s job was not protected from removal. If the President’s fundamental reason for the dismissal were the FBI Director’s habit of wearing his neckties at a normal length, it would be perfectly sufficient. It is from this principle that the late Justice Scalia devised his famous stamp: “Stupid, but Constitutional.”
That the actual reasons may be more pernicious is well worth our attention, but that is fundamentally a political conflict, and one that is well within our power to corral. As Orin Kerr points out, this actually represents an excellent opportunity for Congress to assert its constitutional prerogatives: Any replacement for Comey must be Senate-confirmed, and it requires only a handful of Republican defections to leverage the endeavor into a large-gage speculum that might provide more insight than would previously have been gained. Of course, that would require the exercise of congressional competence, but it is difficult at this point to look upon the President’s move as the embodiment of wisdom.
This bloviation, moreover, is not all together harmless. The consternation surrounding the current administration has led to overreach across every sector, including in the courts. The Executive Order on Immigration is terrible policy, and it certainly raises serious questions regarding the scope and virility of presidential powers. Its initial roll-out, in particular, was a travesty. But, as others have pointed out, the aggressive push-back here has gotten out of hand. The ACLU has essentially retreated to the position that the EOs are unconstitutional because the guy who signed them is a bad person. There are good reasons why we don’t build our constitutional theories on the basis of personal taste — or at least why we shouldn’t.
Indeed, the most likely outcome is fast becoming not a denouement for presidential authority, which many of us would welcome, but a retrenchment issued by a Supreme Court disenchanted with the ability of lower courts to address these questions responsibly.
It may be true that hard cases often make bad law, but it is undeniably true that stupid cases consistently do. They force the court, rather than considering the issues concretely, to play wac-a-mole until they finally throw up their hands and abdicate the field. They are, generally, allergic to stupid, and there is a lot of stupid going around.