Category: Constitutionalism

Making sense of what is happening in the United States

18th February 2025

How can we make sense, from a constitutionalist perspective, of what is currently going on in the United States?

Perhaps it cannot make sense, perhaps it is senseless – and so there is nothing more to be said.

Or perhaps one day we can look back at what is happening, with glorious hindsight, and see that it makes perfect sense.

Perhaps.

This post, however, is an attempt to make some sense of what is happening, based on currently available information.

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First, there is not – yet – a constitutional crisis in the United States, though it seems from the outside that the United States is very close to one.

Yes, there is conflict – but constitutions exist to regulate conflict. It is only a constitutional crisis when a constitution fails to resolve that conflict: when tensions harden to contradictions, which in turn can even prompt civil discontent and even violence.

And yes, there seems to be defiance by the executive of court orders, though the picture here is not clear. There are court skirmishes and filed appeals, and it may be that the apparent defiance is bluster and not reality. It is too soon to tell.

But if the executive branch deliberately and openly (and brazenly) defy the orders of a federal court then, yes, that would be a crisis. It would be a serious contradiction the outcome of which is not clear. Such a crisis may not lead to civil strife, but it would still be an unstable, unpredictable situation.

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Second, it would appear that an attempt is being made to avoid Musk having any legal responsibility for what this DOGE entity is doing:

It will be (grimly) fascinating to see how this somewhat desperate tactic works out in court.

One would hope that such a tactic should fail before any objective judge looking at substance of matter, but it may work before partisan Trump appointed judges. ‪

And we should remember that Musk is no legal tactician or strategist, let alone 4D chess player when it comes to the courts.

He got himself in legal knots in his attempt to withdraw from buying Twitter, which he was then legally obliged to purchase:

And he could not even arrange his own pay-rise in the company he actually controls:

This is not masterful legal strategy or tactics, just loudly confident, well-resourced legal blundering.

Curiously Trump is a lot more legally cautious than Musk, and Trump is instinctively good at avoiding (evading) legal responsibility under a general air of plausible deniability.

Yes, he has not always succeeded – and he has criminal and civil findings against him – but these are very few compared to the sheer number of legal threats he has faced in his political and business careers.

Think about how he managed to get out of almost all the cases against him about 6 January 2021 – from impeachments to federal prosecutions.

Think about how he has always avoided personal bankruptcy – despite his many business failures.

One suspects Trump would never have ended up having to buy Twitter against his will because of legal blunders.

This reckless/cautious distinction is one key difference between Musk and Trump.

One suspect that after all this, Trump will deftly survive/avoid the legal consequences of DOGE shenanigans, and Musk and his cronies will not.

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Third, the three key legal protections for Trump’s administration may not apply to the civil (not criminal) liability that may be triggered by what DOGE is doing:

      • Presidential pardons do not apply to civil liability – if Musk and others involved with DOGE are sued, no presidential pardon will help them.
      • The recent Supreme Court ruling giving the president a certain immunity from criminal prosecution similarly does not apply to civil matters.
      • Control of the Department of Justice will not help when matters fall to be determined by the federal courts – not all of which are (yet) dominated by Trump appointees.

The civil exposure – from being sued rather than being prosecuted – of those involved in DOGE would seem eye-wateringly high.

All sorts of contractual, proprietary, data and other rights of individuals appear to have been freely disregarded.

And on the face of it, the presidential machine offers no protection from suit from those whose rights have been breached.

No wonder Musk and others are now trying to distance themselves from legal responsibility for DOGE.

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And fourth, and to return to an old theme of this blog: the legal form of a constitution – codified, “written” or otherwise – offers no protection in and of itself when key political actors care not for constitutionalism.

(Constitutionalism is when those with political power accord with organising rules and principles despite partisan or personal advantage.)

There is no formal impediment to determined unconstitutional behaviour.

The real problem is how one gets politicians – and voters – to care about constitutionalism.

And that is a problem which has no obvious answer.

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From constitutional drama to constitutional crisis?

1st February 2025

When do constitutional problems become incapable of constitutional solutions?

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What is a “constitutional crisis”?

There has certainly been a great deal of constitutional drama in recent years – in the United Kingdom, the United States, and elsewhere.

But some of this drama somehow resolved itself.

In the United Kingdom, for example, the breathless threats and press briefings that the government was to do unlawful things in respect of Brexit in the end came to very little, though some (impotent) legislation was passed.

The United Kingdom supreme court in the Miller cases and parliament, by means of the Benn Act, put the government back into its constitutional box – and the once intense political-media frenzy over the Northern Irish protocol came to a whimpering end with the Windsor framework.

But sometimes constitutional dramas do spill into constitutional crises – political tensions harden into political contradictions, and these in turn can result in bloody violence.

On the islands of Britain and Ireland this has happened at least four times since the 1620s: the civil wars and political violence of the 1630s and the 1640s; the succession and religious conflicts from 1685 to 1746; the Irish war of independence and the Irish civil war; and most recently, the Troubles.

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The execution of Charles I

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Constitutional crises are serious political conflicts where constitutional means are unable to resolve the conflict, and the ultimate outcome of the conflict then becomes uncertain.

Often the political actors involved in the crisis will resort to violence – or be prepared to do so.

At such times it may not matter that a constitution is codified or not. For what has failed is not the form of the constitution, but its substance. The real failure is that of constitutionalism.

What then is constitutionalism? It has many definitions, but one approach is to regard it as the acceptance that there political rules and principles that should apply, regardless of partisan or personal advantage.

In other words that there are rules of the game.

What has happened in the United States over the last few days looks like a determined and comprehensive attack on various political institutions, by and on behalf of the newly re-elected President Trump.

As there are well-grounded fears that neither the federal judicial benches nor Congress will check and balance this attack, then there are the makings of a genuine constitutional crisis.

And the ultimate cause of this is not so much the failure of their codified constitution, but a deeper and wider failure of constitutionalism – including but not limited to the licence given by the United States supreme court to the president to do unlawful acts, and the failure of the Senate to discharge its constitutional obligation to convict Trump on impeachment after the attempted insurrection of 2021.

From such things, other things have now followed.

Brace, brace.

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Looking critically at Trump’s flurry of Executive Orders: why we should watch what is done, and not to be distracted by what is said

21st January 2025

Around Westminster, the most useful guides to the nature of modern politics may not be the journalists and commentators, still less the ‘think tanks’ with their portentous names and solemn but flimsy ‘reports’.

They are perhaps instead the con-artist conjurers on Westminster Bridge – whose activities are detailed in this fine piece.

For it is these lowly tricksters that remind us that we should watch what is done, and not to be distracted by anything else.

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The Conjurer, painted by Hieronymus Bosch

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In the United States and the United Kingdom there is currently a lot of noise and a lot of misdirection.

As a famous chess player once observed:

“The point of modern propaganda isn’t only to misinform or push an agenda. It is to exhaust your critical thinking, to annihilate truth.”

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The constant noise and endless misdirections are indeed exhausting.

By the time any of the noise and misdirections are translated into action (or inaction), you are tired to notice and others will be too tired to care.

We will be onto the next outrage, and then the next, and the next.

The hard thing is to separate out what is done (and not done) from what is said.

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In the United States there has been a flurry of Executive Orders from the newly inaugurated President Donald Trump.

This sounds very impressive, and it sounds very scary.

But, an Executive Order is not a precise thing – it is a generic term to describe a range of documents that can come from the President.

As this US academic explains:

Some of these Executive Orders will be instruments provided for and envisaged by pre-exisiting enacted legislation: and these will usually have direct legal effect.

Others will have no legal framework and have no legal basis for having any effect.

Many will range between these two extremes.

All will be ‘Executive Orders’ put forward and signed by the President – but pretty much that is all they will have in common.

And according to another US observer, many of these Executive orders are not even of serviceable quality:

This is not surprising: competent legal drafting is not easy, and many of these “Executive Orders” are from pressure groups and professional antagonisers.

Like the Truss legal letter recently examined on this blog, what you have here are media-political devices disguised in the form of legal documents.

But it is a mask, and what we are seeing is essentially a masquerade.

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This is not to say that some – maybe many – of these Executive Orders are not going to have adverse effects for somebody – especially in the short term.

Indeed, given the many partisan conservative judges now on the federal bench, there will be energetic judicial exertions to give effect to otherwise shoddy Executive Orders.

But what it does mean is that we should be careful not to accept everything at face value.

For a flurry of Executive Orders may be little different from a flurry of Press Releases.

And we should be mindful that we are dealing with con-artist conjurers.

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Some of President Carter’s judges can still judge, 44 years later – and so we can see how long Trump’s new nominees will be on the bench

New year’s eve, 2024

The former US President Jimmy Carter, who has just died, left office in January 1981 – just under 44 years ago.

Yet one of his many bench nominees was still actively serving as a federal judge as recently as 2021:

And that list also indicates that about 29 of those judges – while not on active service – have the semi-retired “senior status” and so can still serve as judges if required.

This shows the significant lingering power of every US President on the shape of the judiciary.

A 100 year-old president former president has died who left office over 40 years ago, and yet his appointments can still decide cases.

Bringing this around to today: the newly re-elected Donald Trump and the Republican Senate will be appointing a raft of young conservative judges to the judicial benches, in addition to those which were appointed during his first term.

And some of these will still be judging (or able to judge) in 40 or 50 years – long after many of you reading this post may be here.

The lingering effect of the two Trumpite moments will last for political generations. Some appointed judges may see out ten or more presidential terms and still be judging.

And judicial time limits are now more unlikely than ever: Trump and the Republican senators have no interest whatsoever in limiting the enduring power of their nominees. And presumably as and when (or if) the Democrats ever regain power, they will have no interest in limiting the terms of their appointees.

This is a practical effect of how what some say (or hope) may only be short-term political surges can have consequences that will last decades.

(See also: Brexit.)

We are not dealing only with the politics of the here and now, but about the law and government of the hereafter.

Perhaps things will one day get better for liberals and progressives.

Perhaps.

But it is going to be a long haul.

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Happy new year to the readers of this blog.

Thank you for your ongoing support.

There is going to be a lot to write about in the new year – and I am also going to explore the law and policy of AI, following my Candlemas story.

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Supporting Donald Trump is too much for Richard Cheney

7th September 2024

This week’s skirmish between the European Commission and X

17th August 2024
Law and politics are ultimately about how power is allocated and exercised within a given complex society. In particular, law and politics are about how such power is legitimised and about how it is checked and balanced.

And from time to time you will have visible contests between those with different types of power. The job of law and politics is then to regulate such contests so as to ensure that tensions do not harden into the contradictions that undermine the health of a polity.

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These contests of power, when they happen, are fascinating.

Over at Prospect I have written a post about one such contest: the European Commission v X.

The latter has considerable media power: so much so that the content of its platform can often have a considerable real-world impact.

But the former also has considerable power – in the formulation of the laws that apply to the platform in the European Union and in the application of those laws in particular circumstances.

It is quite the stand-off.

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When the European Commissioner responsible for the Single Market tweeted a letter last week, it reminded me of an earlier stand-off.

It evoked the stand-off in 1930-31 between the then government of the United Kingdom and the then popular press over tariff reform and imperial preference (the Brexit issue of its day).

That was a stand-off which, at least in the short-term, the government won.

(Tariffs were introduced later in the 1930s, though not directly because of media pressure.)

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Often these tensions are hidden and managed out of public view, and so it is always interesting – and instructive – when they are done in public.

Something is up.

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Seven changes for a better constitution? Some interesting proposals from some good people.

24th June 2024

In the Times today there is a letter published from various good sorts putting forward seven practical and easy-to-make steps for a better constitution.

One of the signatories, David Anderson, helpfully posted the letter on Twitter:

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Of course, changes to form and structure can only take us so far. The biggest problem of recent years has been an underlying lack of constitutionalism from government ministers (cheered and clapped by their political supporters). And until attitudes change, then rules will always be gamed or ignored and discretions abused.

But, there has to be a start somewhere to repair the damage, and these are interesting proposals.

The suggestions appear to be:

  • independent enforcement of a new ministerial code;

  • establishing new systems for managing conflicts of interest;
  • ditto, for lobbying;
  • improving regulation of post-government employment;
  • ensuring appointments to the Lords are only made on merit;
  • ensuring other public appointments are rigorous and transparent; and

  • strengthening the independence of the honours system, including by ending prime ministerial patronage.

The worthies aver that legislation is not necessary for most of these changes but a short bill would create the necessary powers and embed the independence of the ethics and integrity system.

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Some may say that these proposals are a little “apple pie” – but they would be a move in the right direction, the least that can be done.

Words like “ensuring” and “strengthening” are easy to type – and they are almost as easy to put at the start of a sterling bullet point.

But what is the actual check on misuse? Who in practice will have the power and authority to say “No” to a trespass by a minister of the crown (or by a former minister of the crown)?

The robustness of any regulatory system is not so much in the rules being themselves commendable, but in the rigorous enforcement of those rules and in the ready and realistic availability of sanctions for breach.

In a word: there needs to be tension.

And in our constitutional arrangements, as they stand, only parliament and the courts – rather than third party agencies – have the strength and the legitimacy to check the executive on an ongoing basis, and so for each of these seven laudable aims, one question is how they can be enforced against the government’s will by other strong and permanent elements of the state.

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Of majorities and “super-majorities”

21st June 2024

The greatest prize that the constitution of the United Kingdom can bestow is a substantial parliamentary majority at a general election.

With such a majority you can be confident to pass major legislation, not worry too much about backbench opposition, and even face down the House of Lords.

And so one of the most remarkable things about the current government – which brought about its own emphatic general election victory in December 2019 by (among other things) “Getting Brexit Done” is how little use it has made of this great prize.

Some people are suggesting that after this next general election (in less than two weeks now) the Conservative may now be out of government for a very long time. Who knows? But if so, that will be a lengthy period for the politically-right-of-centre to kick themselves for not having used their chance to drive through fundamental reforms when they had it.

Many people would find it difficult to name – other than Brexit – one fundamental reform which current government has driven through with primary legislation. The last few Queen’s and now King’s speeches have been limp affairs.

All that political and legislative power – as close to absolute power that our constitutional arrangements can admit – and nothing, or close to nothing.

Given that part of the reason for the Brexit referendum and for then “getting Brexit done” was for the political advantage of the Conservatives, it seems odd. What was the (party political) point? All that chaos and dislocation, for this?

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In the early 1990s the Conservatives lost their overall majority under John Major and then were out of office from 1997 – and in a long haul, and via a coalition, they eventually gained an overall majority only in 2015.

They promptly threw that away in 2017.

They then exploited an exceptional political situation in December 2019 and got that majority back, and then did nothing much with it.

And now that second chance at an overall majority is about to end.

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Over at Prospect – please click here to read – I have done a post on the fears of a Labour “super majority”.

But what Tories should fear is not the use of a “super majority” but just the effective use of a sustainable and substantial parliamentary majority.

And that can be quite the forceful thing, not that the outgoing government ever really cared to use it.

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The coming constitutional excitements in the United States

2024 will be a test for the very notion of legitimacy at the basis of the United States constitution

On yesterday’s Supreme Court judgment on the Rwanda policy

16th November 2023

Yesterday the Supreme Court handed down its appeal judgment in the Rwanda policy case.

For an informed view on the case, it is worth taking the time to watch Lord Reed, the President of the court, giving the summary of the judgment:

A court-approved summary can also be read here – and the full judgment is here.

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I wrote a couple of quick posts on the case yesterday for the mainstream media.

At the Financial Times, I did an “instant insight” (and it certainly had one of those two qualities) which emphasised two things which were immediately evident about the case.

First, it was remarkable – and, to me, a surprise – that the current Supreme Court under Lord Reed, which is generally regarded as deferent to the executive and legislature on “policy” matters, went unanimously against the government.

In essence, and to echo John Kander and Fred Ebb’s New York, New York: if a government cannot win on a “policy” matter before a Lord Reed Supreme Court, it cannot win that case anywhere.

Second, the court – perhaps showing more political sense than the entire cabinet – deftly avoided resting the case on the European Convention of Human Rights or the Human Rights Act.

Both instruments were, of course, mentioned in passing – but the effect of the judgment would have been just the same had neither instrument applied to the facts.

The court instead had regard to a range of other legal instruments and sources of law, including what is called customary international law.

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Over at Prospect, I approached the judgment from a different perspective, and I averred that the government could have won the case had they wanted to do so – by which I meant that the government could have negotiated a treaty with Rwanda that would have addressed the concerns ultimately expressed by the Supreme Court, instead of relying on a flimsy Memorandum of Understanding.

And this was not just a commentator-with-hindsight, it was what the government had been explicitly warned about a year ago by a House of Lords committee:

Some other commentators are not with me on this point – and they say that even a substantial treaty with Rwanda, which ensured there was no risk of asylum seekers being wrongly returned to their country of origin, may not have been enough to save the policy in this appeal.

Perhaps they are right and more would have been needed, but on any view such a treaty would have been necessary, if not sufficient: a non-enforceable MoU was inherently inadequate.  It would not have been relied upon had the government been actually serious about this policy.

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I am now thinking about writing a detailed post on the case from a constitutionalist perspective; but in the meantime, let me know below what you think about the decision and what you reckon to be its significance.

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