Cato: Are 13 Current Cabinet Members Unconstitutional?

 By the time Joe Biden was inaugurated as the 46th president yesterday, every member of President Trump’s cabinet had resigned. That’s customary when a new president takes office. Because none of President Biden’s nominees to fill his cabinet have yet been confirmed by the Senate, all fifteen cabinet‐​level departments are currently being led by “acting secretaries.” These acting secretaries serve either by virtue of succession statutes specific to particular departments or by virtue of the “Vacancies Act,” a law that gives the president broad discretion to fill vacancies across the federal government with “acting officers” (but places time limits on their service).

But there’s a serious constitutional issue with most of the people President Biden has chosen as his acting secretaries. Only two of them were confirmed by the Senate to their primary jobs, the jobs they held before they were elevated to acting secretary (and jobs they still technically hold). Those two are Acting Secretary of Defense David Norquist, who was confirmed by the Senate as Deputy Secretary of Defense, and Acting Secretary of Homeland Security David Pekoske, who was confirmed by the Senate as Administrator of the Transportation Security Administration. That leaves thirteen current members of the cabinet who have never been confirmed by the Senate.

This raises constitutional concerns because the Appointments Clause of the U.S. Constitution requires that all “officers of the United States” must be confirmed by the Senate. There is only one exception to this rule, an exception for “inferior officers.” The Constitution allows Congress to decide that a particular inferior officer can be appointed by the president unilaterally, without Senate consent. That means if these acting cabinet secretaries are only “inferior officers,” then their selection without Senate consent is permissible. But the Supreme Court has explained in a case called Edmond v. U.S. that inferior officers are “officers whose work is directed and supervised at some level by others who were appointed by” the president. And acting cabinet members, just like permanent cabinet members, have no supervisor except the president himself, which means it is hard to explain how they could be “inferior officers” under this definition.

Read more at https://www.cato.org/blog/are-13-current-cabinet-members-unconstitutional

Cato: Indispensable Remedy: The Broad Scope of the Constitution’s Impeachment Power

 Presidential impeachments are vanishingly rare in American constitutional history: in the 230 years since ratification, only three presidents have faced serious attempts to remove them from office. And yet, as President Donald J. Trump’s tumultuous tenure continues, it seems increasingly plausible that we’ll see a fourth.

In ordinary times, in ordinary presidencies, impeachment talk is considered taboo: the “I‐​word” is heard only on the political fringes, if it’s heard at all. Yet Trump’s first year in office saw four resolutions, containing a total of nine articles of impeachment against him, formally introduced in the House. Recent polls reveal strong support for an impeachment inquiry among the Democratic base. Should the Democrats recapture the House in the 2018 midterms, even reluctant members may find that pressure difficult to resist.

The rancor engendered by our current impeachment debate bears out Alexander Hamilton’s prediction that impeachments would “seldom fail to agitate the passions of the whole community, and to divide it into parties.” But the scope of “high Crimes and Misdemeanors” shouldn’t turn on one’s opinion of any particular president. Partisans who lower the bar to impeachment in order to punish a president they revile — or raise it to save one they support — may, under future presidents, live to regret the standard they’ve set.

This study touches on most of the specific charges directed against President Trump, but it does not answer the question of whether he should be impeached and removed from office. Instead, it is designed to serve as a primer on the purpose, history, and scope of the Constitution’s impeachment provisions — and a corrective to some of the popular myths that have grown up around the remedy.

First among those myths is the notion that impeachment is reserved solely for criminal abuses of office. Perversely, as the power of the office has grown, that misconception has ensured that the federal official with the greatest capacity to do harm now enjoys stronger job protection than virtually any other American.

But the remedy James Madison described as “indispensable . . . for defending the community against the incapacity, negligence, or perfidy of the Chief Magistrate” isn’t limited to violations of the law or abuses of official power. As the 1974 House Judiciary Committee report on “Constitutional Grounds for Presidential Impeachment” put it, impeachment was “intended to reach a broad variety of conduct by officers that is both serious and incompatible with the duties of the office.” “A good magistrate will not fear [impeachments],” Massachusetts’ Elbridge Gerry insisted at the Constitutional Convention, and “a bad one ought to be kept in fear of them.” Through the exercise of the “sole Power of Impeachment,” the House can call even the most powerful federal officer to account. That power should never be invoked lightly, but neither should Americans fear to wield it, should it become necessary.

Read more at https://www.cato.org/white-paper/indispensable-remedy-broad-scope-constitutions-impeachment-power

Cato: Impeachment, the 25th Amendment and Trump’s Final Days

 We started the week with an impeachment debate that looked like a rewarmed version of the one we had last year. “Read the transcript!”: when President Donald Trump got on the phone Saturday to lean on Georgia election officials, was it another “perfect call” or a second, sordid shakedown attempt?

By yesterday afternoon we were in entirely new territory: a violent mob storming and trashing the Capitol, four dead, guns and explosives seized, Congress evacuated, Vice President Mike Pence fleeing a mob inspired by the president’s tweets. “We will never concede,” Trump fumed at the pre‐​riot rally, “you don’t concede when there’s theft involved. Our country has had enough. We’re not going to take it any more.… if you don’t fight like hell, you’re not going to have a country any more.” Howard Beale only asked people to yell out of their windows, and he didn’t have nuclear weapons.

As of Wednesday night there were at least 32 House Democrats publicly calling for a second impeachment. Though both houses are supposedly done working until after inauguration, an article of impeachment has already been drafted for circulation. And today, the incoming Senate Majority Leader called on Pence and the Cabinet to trigger the 25th Amendment and remove Trump from power.

Can either of those things be done? Both? How might the Constitution’s presidential defenestration provisions work here? Let’s take a look.

First, impeachment: the article of impeachment being circulated now charges Trump with making “statements that encouraged—and foreseeably resulted in—imminent lawless action at the Capitol.” Is incitement to riot an impeachable offense? Yes: it’s not even a hard question.

“High Crimes and Misdemeanors” is a broad term designed to reach serious misconduct that demonstrates unfitness for high office: not just criminality or abuse of official power but, as the Nixon‐​era House Judiciary Committee report on “Constitutional Grounds for Presidential Impeachment” put it, conduct “grossly incompatible with the proper function and purpose of the office.”

In fact, the first impeachment case to result in conviction and removal from office, Judge John Pickering (1803) involved a federal judge whose main offense was showing up to work drunk and behaving in a “profane and indecent manner … degrading to the honor of the United States.” The 10th article of impeachment against President Andrew Johnson, approved by the House in 1868, charged the president with “a high misdemeanor in office” based on a series of “intemperate, inflammatory, and scandalous harangues” he’d delivered in an 1866 speaking tour. And Johnson didn’t incite a riot.

Impeachment is not a criminal process. You don’t have to prove all the elements of a federal criminal statute or pass the Supreme Court’s Brandenburg test for incitement. And, despite what the president’s lawyers argued the last time around, nothing in the Constitution requires extensive hearings. Even at this late date, the House could mount a fast‐​track impeachment.

Could a successful impeachment bar Trump from ever holding the presidency again? Article I, section 3 of the Constitution provides for an additional punishment beyond removal: “disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States.” It’s only been invoked three times, all against federal judges.

There’s a question, however, of whether the presidency is an “Office of honor, Trust or Profit under the United States.” The legal scholar Seth Barrett Tillman has argued that “Office… under the United States” is a term of art like “Office under the Crown” in British law: it covers appointed officials, not elected ones. In that reading, Donald Trump could be barred from serving as a federal judge, or Secretary of State—but not a second shot at the presidency.

Read more at https://www.cato.org/blog/impeachment-25th-amendment-trumps-final-days

Cato: Impeachment of an Ex‐​President Is Unconstitutional

 Former judge Michael Luttig has argued correctly that the Constitution refers to impeachment of the president, not the ex‐​president. Article II, section 4 provides that “The President … shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” Accordingly, once a person is no longer president, he can’t be impeached or convicted. Our federal government has only those powers enumerated in the Constitution; it does not have the power to impeach a former president.

On the other hand, several legal experts have pointed to Article I, section 3, where the Constitution states that “Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States.” Those experts note further that disqualification is a separate vote — requiring only a majority of the Senate, not the two‐​thirds required for conviction and removal. Accordingly, the disqualification vote could occur after the president had already been removed.

Ergo, the entirety of the impeachment process, expanded to include disqualification, could apply to an ex‐​president. Can those two provisions be reconciled? First, nothing in the Constitution requires that conviction and removal occur simultaneously. The Senate could certainly vote to convict while declaring that removal would occur on a specified future date. Then, between the date of conviction and the date of removal, the Senate could decide whether to disqualify the president from holding future office, in which case the three‐​stage process – impeachment, conviction, disqualification – would be complete prior to removal. None of the stages would affect an ex‐​president, thereby complying with both of the Articles cited above.

Read more at https://www.cato.org/blog/impeachment-ex-president-unconstitutional

Cato: Reflections on the President’s Conduct

 Because the election was close, fair‐​minded persons acknowledge that President Trump had every legal right to investigate possible irregularities. If he uncovered significant fraud, he would and should have taken appropriate steps to challenge the outcome. But the President and his surrogates opted instead to fabricate claims that he had already won the election, the process was totally corrupt, and Americans could not trust the results. Therefore, the Trumpists insisted, millions of voters should be disenfranchised by replacing their chosen electors with alternative slates to be designated by state legislatures or Congress.

Numerous elections have been contested, and final tallies are sometimes delayed pending investigations of misconduct. Accordingly, there would have been no defensible outcry if the President had said: “We have received a number of reports concerning questionable voting practices. We plan to scrutinize those reports and seek appropriate redress if justified. But if the reports are not verifiable, we will accept the outcome, congratulate our new president‐​elect, facilitate a smooth transition, and continue governing the nation to the best of our ability until January 20.”

Sadly, Trump preferred inflammatory disinformation and outright lies – undermining what might otherwise have been a legitimate inquiry. In the process, he dangerously eroded voters’ confidence in our electoral system and its republican foundations. In desperation, he put his personal interests above those of the nation – ironically but predictably lubricating a Democratic takeover of the Senate.

Read more at https://www.cato.org/blog/reflections-presidents-conduct

Cato: No Joe, Governors Shouldn’t Require Everyone to Wear a Mask When Outside

 Last week, presumed Democratic presidential nominee Joe Biden called on state governors to order residents to wear masks in order to reduce transmission of the SARS‐​CoV‐​2 virus.

According to UPI:

"“Every single American should be wearing a mask when they’re outside for the next three months at a minimum,” Biden said. “Every governor should mandate mandatory mask wearing.”"

It’s unclear what significance his statement has beyond virtue signaling. Still, the idea has popular support; a recent Fox News poll (see question 40) finds that 74% of respondents support such a requirement.

Mask‐​wearing, of course, is important in this pandemic. As I note in a forthcoming paper on limited government and COVID-19, there is scientific consensus that infected people (who often are unaware they’re infected) who wear masks greatly reduce the odds of their infecting others. There also is growing evidence that uninfected people who wear masks reduce their risk of becoming infected, though not as much as when the infected wear masks. And when both the infected and uninfected wear masks, risk of transmission appears to be extremely low, especially if they also practice social distancing.

In policy terms, SARS‐​CoV‐​2 is a negative externality: a cost involuntarily foisted on others. Limited government can (and in many cases should) address negative externalities, subject to such restrictions as that the resulting policies do not infringe on protected rights and do provide net benefits to society. Requiring the wearing of masks appears to be such a policy; it certainly seems at least as legitimate as largely uncontroversial public decency laws requiring the wearing of some clothing when in public.

Read more at https://www.cato.org/blog/no-joe-governors-shouldnt-require-everyone-wear-mask-when-outside

Cato: 6 Million Foreign Visitors, Students, and Guest Workers Were Stranded in the US Beyond Air Departure Dates

 Before the COVID-19 pandemic, more than 150,000 foreign tourists, guest workers, international students, and business travelers entered the United States each day. All these entries come with an expiration date by which the visitor must leave the country or somehow extend their status if they can. While the inflow has almost entirely evaporated, the outflow has too, leaving millions of foreign visitors stranded in the United States desperately trying to stay legal and support themselves.

In fact, new data obtained by the Cato Institute from Customs and Border Protection (CBP) show that of the 17 million air departures initially required to occur from January through April, only 10.9 million occurred. This means that about 6.1 million foreign visitors were unexpectedly stranded in the country beyond their initially required departure date. Of these, about 1.4 million were from Canada or Mexico and could have driven home. This means roughly 4.7 million foreign visitors were stuck in America unexpectedly.

They are attempting to extend their legal stays, but many have already lost status and been labeled illegal immigrants. Foreigners have become stuck here for a variety of reasons. Many other countries have made it virtually impossible to return home. Flights are canceled or entries even by their own nationals have been banned or restricted. Of course, many simply don’t want to risk contracting COVID-19 during their travel. The result is millions of people who have missed their initially required departure dates. Now they are scrambling to try to extend their statuses, but many cannot.

Read more at https://www.cato.org/blog/6-million-foreign-visitors-students-guest-workers-were-stranded-us-beyond-air-departure-dates

Cato: Getting The Vaccine to Those Who Want it Most

 The first wave of Pfizer and Moderna COVID vaccines arriving at health facilities across the country in the past few weeks sparked optimism that we may soon see a light at the end of the tunnel. As more people get vaccinated, the goal of herd immunity—where enough of the population is immune to the virus to prevent its easy spread to the vulnerable—becomes more attainable.

Markets provide the most efficient means of distributing the vaccine to those who want and need it. Instead, policymakers on all levels of government have chosen the opposite: central planning. Now we read of reports in the news than many frontline health workers—those assigned top priority for immunization—are not following the plan. They are reluctant to take the vaccine.

On New Year’s Day, the Los Angeles Times reported that anywhere from 20 to 50 percent of Southern California health care workers are refusing immunization. The New York Post reported similar resistance in New York, Ohio, and Texas.

This is very disappointing. Frontline health workers are not only at greater risk of contracting the virus but at greater risk of spreading it around their institution or bringing it home. It is reasonable to expect that, with their background in health care, they would have a greater appreciation for the value as well as the reported safety and efficacy of the two new vaccines. The longer it takes to get an estimated 70% of the population immunized, the longer it will take to reach herd immunity. (Of course, the millions of people who have already contracted and recovered from COVID are immune as a result and contribute to the goal of herd immunity as well.)

Many people who public health officials designated as lower priority for the vaccine are particularly frustrated to learn of this news. They very much want to receive the vaccine but are currently denied the chance, while vaccine vials allocated to first priority designees may go unused since manufacturers require them, regardless of any state policies or lack thereof, to be discarded if they are stored beyond safe time periods.

Read more at https://www.cato.org/blog/getting-vaccine-those-who-want-it-most

Cato: House GOP Lawsuit Is Symptomatic of What Ails the People’s Body

 Yesterday, Republicans in the House of Representatives sued Speaker Nancy Pelosi over H. Res. 965, a recent rules change that allows lawmakers to vote remotely during the COVID crisis.

In the complaint, the House GOP alleges that such “proxy” voting is unconstitutional.

Legally speaking, I strongly suspect the House GOP’s case is a loser. Proxy voting is unprecedented, but so are the circumstances, and the Constitution leaves congressional procedures up to the House and Senate, respectively. Here, courts have no role to play. The complaint is likely to be dismissed.

Setting aside the lawsuit’s crummy prospects, what about the politics of the matter? Those, too, are crummy for House Republicans.

On its face, H. Res. 965 seems eminently reasonable. The resolution reflects the same sort of operational planning conducted by myriad businesses, non‐​profits, and government agencies in response to the ongoing public health emergency. Furthermore, the change is temporary and can be cut short.

Capitol Hill, like all of D.C., is under a stay‐​at‐​home order through at least June 8th, and travel is hazardous. Under the circumstances, existing House rules didn’t work. Something had to be done. The alternative was the continued idling of the House.

Before opposition to proxy voting became the party line, House Republicans recognized the necessity of remote working procedures. Consider Rep. Liz Cheney’s about‐​face. On April 29th, she urged Speaker Pelosi to consider a “plan to allow the House to operate or function remotely” because “paralyzing the People’s House at a moment of national crisis is unacceptable.” Yesterday, however, Rep. Cheney was among the named plaintiffs challenging the very idea she had just supported!

In a floor speech opposing H. Res. 965, Minority Leader Kevin McCarthy complained that the resolution “disconnect[s] [the House] from the American people.” Yet only weeks before, he had worked with Speaker Pelosi to pass a $2 trillion stimulus—the largest ever spending bill—by unanimous consent, which involves an opaque vote and is typically reserved for ultra‐​anodyne legislation. When Rep. Thomas Massie threw a monkey wrench into McCarthy’s plans, the House GOP caucus was outraged. It’s tough to square these recent events with McCarthy’s stated opposition to H. Res. 965.

In sum, the House Republicans’ legal and political arguments against proxy voting don’t hold water.

So, what’s actually going on here?

Here’s the sad truth: In today’s dysfunctional Congress, the House GOP has every incentive to prefer a shuttered shop.

Read more at https://www.cato.org/blog/house-gop-lawsuit-symptomatic-what-ails-peoples-body

Cato: The Economics of Vaccine Distribution

 My colleague Michael Cannon had an excellent blog the other day on the subject of the distribution of vaccines. He rightly concluded,

"Once governments have purchased vaccines, it’s not clear libertarian principles have anything useful to say about how they should distribute them. The question of how then to maximize social welfare—or alternatively, to reduce violent assaults—is an empirical one. It’s a fascinating question. But I’m not sure anyone knows the answer."

Too true. Libertarian principles indeed do not get us very far, especially in a situation where governments have made advanced commitments to buy vaccines. But, as Michael’s piece skillfully shows, we can, in principle, use economic logic to inform our answers.

The task at hand is to minimize the overall economic welfare costs of the pandemic—that means reducing the combined costs of lost lives, yes, but added to the costs of bad health, lost GDP, and, indeed, lost economic welfare from curtailed liberties or pandemic‐​induced constraints on our activities. When the problem is set up in this way, one can see that a lot of the conversation so far has been inadequate.

As John Cochrane notes, a lot of the recommendations for distribution have simply implied that, after vaccinating healthcare workers, we should work down a list of demographic groups, starting with inoculating those with the highest death risks from COVID-19 and ending with those with the lowest. If it turns out the vaccine only reduces the symptoms of COVID-19 but doesn’t reduce our ability to transmit it much, that might be a reasonable position. But if the vaccine itself helps stop the spread of the disease among the vaccinated, then this is not necessarily the best way to go.

Read more at https://www.cato.org/blog/economics-vaccine-distribution

Cato: Are Shutdown Orders a Taking? Part Two

 States and cities have closed innumerable firms and ordered their workers and suppliers into idleness in response to the dangers of COVID-19 transmission. A month ago I posted about some legal questions raised as a result:

"Are these takings of property for public use? If so, would the Supreme Court rule that they require just compensation under the Fifth Amendment’s Taking Clause? If not, is there nonetheless a case for some such compensation, such as emergency rescue payments, as rough justice?"

I quoted two liberty‐​minded law professors on the subject. Cato adjunct scholar Ilya Somin wrote that on current Supreme Court precedent, which generally refuses to acknowledge most government regulatory action as a taking for Fifth Amendment purposes, courts would probably not award compensation for most shutdown losses. But both Somin and Keith Whittington went on to argue that the state of the law aside, there may be a moral case for compensating those who have been asked to forgo their livelihoods in response to a public safety emergency.

Since then there have been a couple of updates. Earlier this month the Pennsylvania Supreme Court ruled against several businesses that had argued (among several other theories) that being ordered to close was a compensable taking under the U.S. and Pennsylvania constitutions. Three dissenting justices held that the claims deserved more procedural consideration but did not endorse the application of a takings theory. Prof. Somin has more, noting that this outcome is to be expected under the current state of precedent. In recent days, Somin and business law professor F. E. Guerra‐​Pujol have had an exchange of views on whether the state of current law is really as discouraging for claimants as Somin believes. (For what it’s worth, I’d side with Somin.)

Read more at https://www.cato.org/blog/are-shutdown-orders-taking-part-two

Cato: What’s the Libertarian Position on How to Distribute Vaccines?

 The federal Advisory Committee on Immunization Practices (ACIP) has voted to recommend that the Centers for Disease Control recommend state governments give the new COVID-19 vaccines to certain groups before others. “If we had vaccine for every person in the United States, it would be an easy decision,” ACIP chairman Jose Romero said. “But we don’t, and that’s why we have to make a prioritization scheme for the initial set of vaccines.” The committee voted to prioritize health care workers and nursing‐​home residents and staff. But not without some uncertainty. The Washington Post reports, “several panel members say[] there was insufficient vaccine safety and efficacy data to support immunizing [nursing‐​home residents] right away.” The Post continues:

"The advisory committee has expressed support for, but not yet voted on, the likely order for three groups who should get the shots next: essential workers (about 87 million people, not including health‐​care personnel) in Phase 1b, and people 65 and older (about 53 million) and adults with underlying medical conditions that put them at higher risk of getting very sick with covid‐​19 (about 100 million) in Phase 1c."

Among those ACIP considers “essential workers” are “people who work in meatpacking plants and other food‐​processing facilities; police and firefighters; teachers; and the transportation industry.”

Who should get the vaccines first? There are no easy answers to the question, nor does there appear to be a libertarian answer.

Consider the facts at hand.

At first, the demand for a COVID-19 vaccine will vastly outstrip the supply. If this were a typical private good—even an essential good amid an emergency, like bottled water after a hurricane—libertarians would say the government should let private actors decide where the available resources should go, and not intervene through “price gouging” laws or other means of rationing. Letting market forces ration the available stock would do the best (not perfect, just best) job of putting those resources to their highest‐​valued use and would expand the stock of that resource. As consumers bid up the price, more producers would enter the market.

A vaccine is not a pure private good, however. It has positive externalities, which means that because consumers do not capture all the benefits of using vaccines, market forces alone might not produce the socially optimal quantity. Vaccines are even more interesting because their positive externalities come from eliminating the negative externalities of other activities. Since the negative externalities a vaccine eliminates are literally violent physical assaults with a deadly pathogen, there’s a stronger argument for government playing a role in the allocation of vaccines than bottled water or even many other goods with positive externalities (e.g., fireworks displays).

Read more at https://www.cato.org/blog/whats-libertarian-position-how-distribute-vaccines

Cato: Charity Rises to the Occasion amid the Pandemic

 If you need a ray of sunlight in these dark times, consider the magnitude of the human capacity for charity and voluntary action as we help one another through a time of crisis. Individuals, private organizations and businesses across the United States have stepped forward to offer assistance to those in need amid the novel coronavirus emergency. Voluntary cooperation and compassion are proving to be some of the most potent weapons we have in tackling the pandemic.

Technology and social media have allowed for better coordination of charitable efforts and volunteer work. Across America, online groups have popped up to help people exchange needed supplies, information related to the virus and to arrange volunteer work. For example, in my own local area, the “DC‐​Area COVID-19 Grocery Getters” Facebook group helps to coordinate volunteers to deliver groceries for elderly or immuno‐​compromised individuals.

Similar groups offer free online tutoring to help students learn remotely or arrange for volunteers to deliver meals, which are donated by restaurants, to hospital workers. One innovative online group matches owners of RV trailers that are sitting idle with healthcare workers who need a place to self‐​isolate after long hospital shifts so they don’t infect vulnerable family members. And hundreds of thousands of volunteers are donating their computers’ spare power toward virus research through projects like “Folding at Home.”

Many individuals have donated face masks and other supplies to medical workers while volunteer groups have also emerged to coordinate the making of new masks for donation by using 3D printers or by sewing. Such generosity is not limited to individuals. Organizations ranging from the Washington National Cathedral operated by the Episcopal Church to the financial services company Goldman Sachs have donated troves of N95 masks from their own supply closets to help address the shortage of such masks among medical professionals.

Read more at https://www.cato.org/blog/charity-rises-occasion-amid-pandemic