Why Attorney General Sessions Should Change Litigating Positions

The Department of Justice under Attorney General Sessions has been criticized for changing its positions in litigation from those taken by the Obama administration on such questions as whether Title VII prevents discrimination on the basis of sexual orientation. Some of the criticism has been on the merits of the new position, but others have complained about the wisdom or propriety of changing a position  that the government has already advanced in court.

This latter kind of complaint is wholly without merit.  The Department of Justice is not like a private litigant and should change positions to reflect the jurisprudential stance of the President and his new administration.  Unlike a private client, the President has taken an oath to “preserve, protect and defend the Constitution of the United States,” and must “take Care that the Laws be faithfully executed.”  Thus, as I have noted long ago, the Attorney General and his subordinates have obligations that no private lawyer has: not simply to prevail in litigation, but to advance the President’s interpretation of the Constitution and the laws made under it.

To the objection that President Trump, a non-lawyer, has no jurisprudence, the Attorney General and his subordinates should ask themselves what the President would do if he knew as much about jurisprudence as they do. With President Trump, they are substantially aided by President’s own actions. His list of potential Supreme Court justices were to a person committed originalists and textualists. Thus, there is a very strong presumption that he would want to take an originalist and textualist approach to the law. The question that the high command at the Department of Justice should be asking is how to determine the best originalist or textualist position in a case, where possible.

I say where possible, because, as Michael Rappaport has noted, the executive’s obligation to follow Supreme Court precedent, even if erroneous, is itself a complicated matter of original meaning of the Constitution. But there is no controlling precedent on the cases in which the Department of Justice under Sessions has changed its position.   Moreover, there is a tradition of the Department of defending the constitutionality of acts of Congress even if the arguments are only reasonably good, not the best. (I am not defending that tradition here). But again so far the Department has not changed its position on defending the constitutionality of federal statutes.

The more interesting question comes when an administration’s jurisprudence conflicts with one of its policies.   The tension between fidelity to the administration’s jurisprudence and adherence to its policy goals is a central dilemma for any Attorney General who takes the Constitution seriously. In my view, the Attorney General institutionally is the guardian of the “Take care Clause” in the executive branch and should push back against subordinating  law to policy.

One corollary is that Attorney Generals in an administration committed to originalism and textualism will sometimes be a thorn in the side of policymakers. I witnessed such triumphs of jurisprudential principle over policy in the Reagan administration. One notable example was the refusal of the Department to challenge state laws divesting funds from South Africa, even those the laws were in tension with the administration’s policy of engagement with that nation.  Let’s hope we see some of these triumphs in the Trump administration as well.

Reader Discussion

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on August 14, 2017 at 19:59:26 pm

Interesting brief. I look to Lincoln as a bell-weather for Executive approach to jurisprudence and "Take Care Clause; and in this respects his rejection of (broad application of) precedent in Dred Scott.

Having said that, if precedent be King, and the Executive its vassal, I would almost prefer these several poorly advanced legal policy (Title VII, Contraception Coercions, etc.) of the last Administration to have their so-called day in (Supreme) court (Trinity Lutheran was wise in this respect) under its new alignment - I would predict they would fail and fall, thus making it a whole lot less likely for subsequent Progressive Administrations to resurrect them.

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Paul Binotto
on August 14, 2017 at 20:35:37 pm

JMc: "The Department of Justice is not like a private litigant and should change positions to reflect the jurisprudential stance of the President and his new administration."

The Monica Goodling fallacy. General Sessions didn't swear out an oath to Donald Trump (well, maybe he did!), but to uphold and defend the Constitution and our laws. He is not the President's attorney; he is OURS. "The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all, and whose interest, therefore ... is not that it shall win a case, but that justice shall be done." Berger v. United States, 295 U.S. 78, 88 (1935).

Sessions should oppose the 7CA's decision in Hively because they went full frontal Platonic Guardians on us, and Judge [spit] Posner admitted it straightaway. But when it comes to the voter suppression cases, there's only one right answer, and even Sessions knows it.

Taking COTUS seriously means not always taking the position you prefer.

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on August 14, 2017 at 22:32:45 pm

With respect, my position has nothing in common with that of Monica Goodling, who, at least according to some reports, wanted to hire people on the basis of partisan considerations. Instead, it reflects the view that the President is both head of a unitary executive and, according to the Constitution, must take care that the laws be faithfully executed. It is of little use in concrete cases simply to say the Attorney General should follow justice to fulfill the President's obligation. People differ on what is the jurisprudence of justice. Hence our debates about originalism and other legal views.

The Attorney General should emphatically not take litigation positions because of partisan considerations. That idea is ruled out by all plausible views of jurisprudence. But many Presidents from Jefferson on have been elected on principled jurisprudential views and it is for their subordinates to give these views concrete expression in particular cases.

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John O. McGinnis
on August 15, 2017 at 13:20:11 pm

With respect, methinks you are putting the cart before the horse. While the President normally chooses an AG who agrees generally with his views, the AG has only one client: the people. lf the President says "X" and the AG believes that COTUS says "not X" sincerely (e.g., recusal in the "Putindidit" Scandal), s/he has to go with "not X." lf POTUS doesn't like how that plays out in practice, he can fire the AG. Checks and balances....

lt almost qualifies as ancient history now, but Goodling was dressed down for her assertion that her loyalty was to POTUS, and rightfully so. You are suggesting that the AG defer to POTUS. lf he tells our AG not to go after a Michael Flynn or a HRC, must he comply? This is the same issue, albeit at a higher level of abstraction.

lf you have been following (and you probably haven't), l'm an inveterate originalist--Scalia only played one on the rubber-chicken circuit--and the "supreme Law of the Land" matters. Every official must swear out a loyalty oath, and not to POTUS. This, in turn, mandates a certain level of independence. Our military can't follow orders that violate COTUS, and neither can the AG. The AG should be mindful of POTUS's wishes, but not too deferential.

We agree on Hively. Especially in statutes, words actually matter. E.g., Lake County v. Rollins. But wrt the voter suppression cases, l can't see a defensible road to a position switch.

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on August 15, 2017 at 14:08:18 pm

I am sorry to say that you fail to grasp my argument, as shown by your false claim that I endorse the position taken in Hively and your erroneous implication that I also support the new position in the voting rights cases. I take no position on the merits of particular changes in litigation position, contending only that the AG should try to follow the President's jurisprudential principles. These are distinct from his partisan, policy or personal interests. Indeed, as I make clear in my last paragraph, these principles will often cabin the operation of those interests. It is true the Attorney General takes an oath to the Constitution, but the oath only tells him what to do once the Constitution is interpreted. For that one needs jurisprudential principles. In a unitary executive it is for the President to supply them if he wishes.

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John O. McGinnis
on August 15, 2017 at 16:06:16 pm


Perhaps you could have mentioned the *distinct* possibility that the actions of the Obama Administration (its Executive and its agencies) may very well fail to make constitutional muster.

Dawg, may, in fact, be displaying his OWN extreme partisanship here under the cover of promoting the Take Care responsibilities of the AG.

Has he not asked (or observed) that reasonable jurists, not to mention Executives (Oops, I forgot, Dawg classifies The Trumpster as a *malignant* narcissist) may differ on the constitutionality of a specific statute or Agency interpretation. Consequently, it would be improper for the Executive AND the AG to NOT change the government's position.

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on August 16, 2017 at 09:50:26 am

Let's go there, gabe. To me, this dispute strikes at the very core of what originalism is, and where we differ.

l see COTUS as a logic puzzle, agreeing with Dworkin in principle that--properly applied--the law should yield one and only one correct answer. When conservatives don't like the answer, they modify originalism to meet their needs. When liberals don't like the answer, they jettison the concept of a fixed and static Constitution in its entirety. ln either case, they want the Framers to validate their vision; that they may not do so is anathema to them.

l concur with Barnett, Solum, and the G'town crowd: COTUS is a libertarian document, which doesn't please either of our competing factions. lt precipitates answers most people don't expect.

Originalism is grounded in Hobbes’s observation that when we entered into civil society, we gave up certain specified natural rights and assume obligations in exchange for a portfolio of what we call “civil rights.” Our “social contract” was the Constitution, and as is the case with all contracts, the words have the meaning that they had when the document was written. See e.g., Lake County v. Rollins, 130 U.S. 662, 670 (1889). Terms of legal art had the meaning they imparted at common law. E.g., 3 Elliot, Debates on the Federal Constitution 531 (1836) (stmt. of J. Madison). And thereunder, there are three and only three ways to modify the contract: amendments, laws, and treaties.

Under the Framers’ Constitution, health care can be a right, and you don’t have to amend it to get there. All you have to do is enter into a treaty. There is, quite literally, NO limitation on the scope of the Art. II Treaty Power; all you have to do to create the right is ratify a treaty providing for it—the International Covenant on Economic, Social and Cultural Rights. (Treaties have a unique array of safeguards: you have to get another sovereign to agree, the President has to agree to it, and a super-majority of Senators must consent to it. And of course, under the “last-in-time” rule, all you need to do to break the treaty is pass a law inconsistent with it.) The only constraint is the Bill of Rights (under the last-in-time rule), which essentially precludes us from entering into the Small Arms Treaty or one restricting hate speech.

Then, consider the right to an abortion. As the 5/14Am only protects the rights of “persons,” and a fetus was not a person in 1791 or 1868, the State has no colorable authority to protect the fetus’s putative right to life. lf LC advocates get their way, the RATS Wing of the Court could simply declare that a fetus is now a “person,” thereby overturning Roe. Law should not be “whatever a judge thinks it is on Wednesday,” and rights are too precious to be subject to a continual plebiscite. But the only way for conservatives to get to where they want to be is to abandon their principles.

When it comes to the great social issues of the day, l don't have a dog in the hunt. l'm not gay, and don't have a stake in SSM. l'm too old for abortion to affect me. l'm not a religious nutter, who needs to insist that society reflect my provincial vision of my god's heaven on earth. And l'm not a Koch brother, who has to foul the air and water to make a profit. l can accept the Constitution's objective answers.

You endeavor to escape the straight-jacket of originalism by changing the Framers' intent, investing far more power in the Legislature and/or Executive than the Framers would have dared. You would sacrifice individual rights on the altar of your societal vision ... and so would your opponents.

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