Reining In Excessive Fines

Yesterday the Supreme Court ruled that the Eighth Amendment to the U.S. Constitution — which states that “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted” — imposes limits on the abilities of state and local governments to seize assets and property and impose financial penalties.  And the Court’s ruling applying the “excessive fines” clause of the amendment to state and local governments was a unanimous one, which is a welcome development in our era of increasingly divided politics.

The case involved an Indiana man who was arrested for selling several hundred dollars’ worth of heroin, had his $42,000 Range Rover seized as part of the process — even though the maximum fine for his crime was $10,000 — and sued to get his car back.  The Indiana Supreme Court ruled that the “excessive fines” clause of the Eighth Amendment did not apply to the states, even though the “excessive bail” and “cruel and unusual punishment” clauses have long been applied to the states.  The Supreme Court, in an opinion written by Justice Ruth Bader Ginsburg, disagreed.

The decision yesterday addresses a significant real world issue — namely, how far can states and local governments go in imposing monetary penalties and seizing property from people who violate the law . . . or, in some cases, are only accused of violating the law.  Because raising taxes isn’t popular with voters, state and local governments have increasingly looked to aggressive forfeiture practices to fund part of their operations.  Briefs filed in the Supreme Court noted that more than half of municipal and county agencies who participated in a survey said reliance on forfeiture profits was a “necessary” part of their budgets, and that, in 2017, 10 million people owed more than $50 billion in criminal fines, fees and forfeitures. And the aggressive penalties aren’t limited to drug offenses.  One brief in the Supreme Court, for example, described how a $100 ticket for a red-light violation in California results in another $390 in fees.

In holding that the excessive fines clause applies to the states and local governments, Justice Ginsberg noted that “[e]xorbitant tolls undermine other constitutional liberties,” and added:  “Excessive fines can be used, for example, to retaliate against or chill the speech of political enemies. . . . Even absent a political motive, fines may be employed in a measure out of accord with the penal goals of retribution and deterrence.”

Now that the states know that they can’t impose excessive fines, it will be up to the courts to determine whether the aggressive property forfeiture and fining practices, like the seizure of the Range Rover, are “excessive” or not.  We’ll have to see how that works out, but for now it’s nice to know that Americans have another constitutional protection against potentially overreaching governmental actions.

Thanks Be To The Essential Man

Lately I’ve been reading a lot of histories and biographies dealing with the American Revolutionary War period and its aftermath.  It’s a fascinating story — and a lot more interesting than the tale of the inevitability of American greatness that we learned in grade school, junior high and high school, long ago.

One point that has struck me repeatedly as I’ve read is that American independence, and the later welding of the different colonies into a single nation, was a very close call.  There were many instances, during the Revolutionary War, during the Articles of Confederation period, and then as the new nation started to function under the Constitution, when the whole American idea easily could have foundered and the 13 colonies and states could have fractured forever.  The war itself, against the greatest power on earth and fought with a fifth column of Tories opposing the overthrow of British rule, could easily have been lost.  And after the war, as the country stumbled forward into a new, post-colonial world, it became clear that the “Founding Fathers” held to a lot of different notions of what a country should look like, the colonies were wracked by debt that irresponsible politicians were unwilling to pay, and always the scourge of slavery threatened to drive a wedge between the colonies and break them apart.

Inevitably, these near-misses were resolved in significant part through one man:  George Washington.  During the Revolutionary War he was the general who was selected by acclaim and whose reputation for leadership and integrity helped to keep the colonial forces together through repeated disasters.  After the War ended, his willing support of a constitutional convention, and his service as the President of the convention — elected unanimously, of course — gave crucial credibility to the effort to reinvent the government.  And when the new Constitution was finally written, and the new government was ready to start, Washington’s reluctant agreement to serve as the first President — where he deftly mediated between the opposing viewpoints of Jefferson, Adams, Madison,  Hamilton, and others, steered a middle course between the agrarian dreamers and the hard-headed mercantilists, and kept the country functioning, credit-worthy, and out of a war with the British or entanglement with the French Revolution — permitted his thoughtful, deliberate, and typically selfless judgment to set the course for the new nation and establish the many precedents and protocols that have guided the leaders of our country down to the present day,

Read biographies of any of the other leaders of early America and you will always see George Washington as a key part of the story, as the figure who had to be persuaded to lend crucial credibility to the cause, as the ultimate decisionmaker, and as the one person who enjoyed heartfelt support from the rock-bound coast of New England, through the mid-Atlantic states, all the way south to the red clay of Georgia.  These days it’s fashionable to poke fun at Washington for his teeth and his careful ways, and to characterize him as a plodder in comparison to the brilliance of the Jeffersons and Hamiltons, but in reality, in the early days of the American experiment, George Washington was the essential man.  The description of Washington as the “Father of His Country” is apt, but it actually may not go far enough in capturing the importance of his central role in holding the early republic together, time and again.  He was the key figure who helped turn 13 squabbling colonies into the United States of America.

This Independence Day, I’m going to reflect for a bit on how very fortunate our country was to have George Washington when and where it did.

Happy Independence Day!

A Government Too Big For Its Britches

The Department of Justice’s decision to covertly collect significant amounts of phone call data of the Associated Press is just another sign that we live in a country where the government has grown too big for its britches.

According to a letter sent by the AP to the Department of Justice protesting the action, the DOJ secretly gathered information about AP phone calls for two months.  The records include outgoing calls made on more than 20 telephone lines, including general telephone lines and a fax at AP offices in Hartford, Connecticut, New York City, Washington, D.C., and the U.S. House of Representatives, as well as records related to the calls of five reporters and an editor.  Although the government has not said why it collected the records, the five reporters and editor worked on an AP story about a CIA operation in Yemen that foiled a terrorist plot to blow up a plane and the Department of Justice is conducting a criminal investigation of the leak that led to the story.  The White House was unaware of the subpoenas and the gathering of phone records because the Department of Justice handles such actions independently.

Of course, reporters aren’t immune from prosecution if they commit criminal acts — but due regard for the First Amendment requires that any intrusion into news-gathering be strictly limited and carefully targeted, based on a particularized showing of need.  It’s hard to see how the DOJ action conformed to such restraints.  Finding out who the AP called goes to the heart of news-gathering, and collecting records on more than 20 phone lines used by AP employees hardly seems targeted or sensitive to First Amendment issues.  Instead, it seems like a fishing expedition — and perhaps one specifically designed to chill vigorous exercise of First Amendment rights.  And, of course, the veil of secrecy that the DOJ places over criminal investigations, and the lack of involvement by the White House, will make it difficult to hold people accountable for the action.

Stories about overreaching government employees and lack of accountability have become all too commonplace.  I think it’s one reason why many people have turned to the Constitution and the Bill of Rights, hoping that the the written words will serve to restrain governmental excesses.  As the DOJ action in this instance show, however, written words have an effect only if people are paying attention to them.  How many of the DOJ employees who approved the broad collection of AP phone records, in their zeal to catch a leaker, really gave serious thought to what their actions were doing to the AP’s First Amendment rights?

In Line For History

Usually, we associate people camped out in lines for days with hot rock concerts, or huge basketball games, or Black Friday special sales.  In Washington, D.C., however, people have been waiting in line since Friday for seats to watch the U.S. Supreme Court.

This week, the Court will hear argument on two cases that may — and I emphasize may — resolve the constitutional status of same-sex marriage.  On Tuesday, in Hollingsworth v. Perry, the Court will address Proposition 8, a state constitutional amendment banning same-sex marriage that California voters passed in 2008.  On Wednesday, in United States v. Windsor, the Court will examine the federal Defense of Marriage Act, a 1996 statute that prevents same-sex couples from enjoying benefits, such as filing joint tax returns, that are available to “traditional” married couples.

Proponents of gay marriage hope the Court will use the cases to declare that different treatment of same-sex marriages violates the equal protection clauses of the Constitution.  As is often the case with Supreme Court cases, however, procedural issues may be decisive.  In the California case, a threshold issue is whether the conservative groups seeking to defend Proposition 8 have legal “standing” to do so, which will require the Court to consider whether the groups have a real stake in the outcome or are officious intermeddlers who won’t be personally affected by resolution of the dispute.  Another key question is which “standard of review” the Court should apply, with much tougher scrutiny being given, for example, to laws that discriminate on the basis of race than to laws that simply regulate economic activity.  The Obama Administration is urging the Court to apply a heightened level of scrutiny to laws that address gender orientation.

Lurking below are the “big picture” notions that only the Supreme Court can truly consider.  Should the Constitution be read strictly, according to “original intent” and the social mores that prevailed at the time its amendments were adopted, or is it a more flexible document that can evolve to encompass cultural changes?  If the latter approach is taken, how do you keep the Constitution from being read with such elasticity that it loses any intrinsic meaning and simply becomes whatever a majority of nine justices might declare?  And if you conclude that the Constitution does protect “gender orientation,” can you write your opinion in a way that would allow courts and legislators to draw principled distinctions between same-sex marriage and other forms of personal commitment between consenting adults — such as polygamy?  Often the Court decides cases narrowly precisely to avoid have to address these kinds of broad and difficult questions.

There’s a reason people are willing to endure days of the blustery late-March weather in Washington, D.C. to get a seat for these arguments.  This week, history will be made in the solemn Supreme Court oral argument chamber.

Waiting On The Court

Deep in the marbled chambers of the majestic Supreme Court building, members of the High Court and their clerks are hard at work on the opinion — or more likely, opinions — to be published when the Court decides the constitutionality of the “health care reform” legislation.  The opinion(s) will be issued within the next week or two as the Court wraps up its work for the year.

The issues swirling around President Obama’s signature legislative achievement have dropped off the public’s radar screen recently, but you can bet that they remain front and center at the White House, the Romney campaign headquarters, and on Capitol Hill.  Whether the Supreme Court upholds the statute, or strikes it down in whole or in part, its decision will be like a bomb going off in the middle of the presidential campaign.  I can’t remember another situation like this, where the Supreme Court will decide the constitutionality of major, controversial legislation — and do so only a few months before a presidential election in which the Court’s decision itself will almost certainly be an issue.

The timing of the Court’s decision will be interesting for two reasons.  First, both carefully scripted campaigns will be knocked off message, for a few days at least, and will be required to respond on the fly to the Court’s decision and the stated rationale for that decision.  The unpredictability of the Supreme Court’s decision means we might just get an honest, candid reaction from a candidate or a Congressman for a change — before the talking points get drafted and everyone adheres to the accepted party line for their side.

Second, and more important, Supreme Court opinions are serious documents written by serious people.  The Justices know their opinions will be carefully read and critiqued, for their intellectual and legal merit, immediately and for decades to come.  They will be working to make those opinions as persuasive and carefully reasoned as possible.  The opinions will address fundamental issues about the structure of our government and the extent of federal power, taking into account the language of the Constitution, the history of our republic, and the decisions of prior Courts.  They will grapple with those issues in a sober, respectful manner, with the majority and dissenting opinions acknowledging, and responding to, each other.  What a refreshing change from the shouting, bullet point blather that passes for political discourse these days!

This will be an exciting time for our country and our Constitution.  It’s another reason for us to step back, admire the foresight of the Framers, and see that our 225-year-old Constitution still works, and works well.

Balance Of Powers 101

Last week’s oral arguments before the Supreme Court about the Affordable Care Act — and the questions from Justices that suggested skepticism about the law’s constitutionality — seem to have caught some people off guard and caused them to make some very odd statements about how our government works.

Today, for example, President Obama said:  “Ultimately, I am confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.”  He added:  “And I’d just remind conservative commentators that, for years, what we have heard is, the biggest problem on the bench was judicial activism, or a lack of judicial restraint, that an unelected group of people would somehow overturn a duly constituted and passed law.  Well, this is a good example, and I’m pretty confident that this court will recognize that and not take that step.”

I’m confident that the President — who graduated from one of the country’s best law schools — can’t possibly believe those statements, because they reflect a profound misunderstanding of the balance of powers that exists under the Constitution.  For more than two centuries, it has been well established that the Supreme Court is the ultimate arbiter of whether a law violates the Constitution.  And, since a federal statute becomes a law only if it has passed both houses of Congress and been signed by the President, declarations of unconstitutionality necessarily will occur only after a “majority of a democratically elected Congress” — and often a “strong majority” at that — has approved the law.

Indeed, the whole idea of judicial review is that the democratically elected members of Congress and the President might be swayed by the popular passions of the day, and therefore only judges appointed for life who are removed from politics should determine whether a statute contravenes the Constitution.  To be sure, it’s not a power the Supreme Court has used routinely, but over the last two centuries the Court has not hesitated to strike down statutes that are found to be unconstitutional.  The Court’s power to do so therefore is, quite literally, not “unprecedented.”

Obviously, the President hopes the Court will rule that the Affordable Care Act is constitutional and enforceable.  However, he does our system a disservice by suggesting that the Supreme Court would be overreaching if it decided to the contrary.  If the Supreme Court takes that step, it is simply exercising one of its constitutional powers — just as President Obama and Congress did in enacting the law in the first place.  That’s how our system is supposed to work.

It’s Their Loss

A recent study reported that fewer nations are modeling their constitutions on the U.S. Constitution.  In the ’60s and ’70s, new constitutions were patterned on the American version, but that apparently is no longer the case.

The explanation for this trend is that our Constitution is miserly when it comes to guaranteeing “rights.”  Popular “rights” found in other constitutions, but not ours, include women’s rights, the right to work, the right to education, and the right to strike or unionize.  On the other hand, our Constitution provides for the right to keep and bear arms, whereas most modern constitutions do not.

The implication of the study is that our Constitution is somehow passe.  In the “rights race,” we’re falling behind!  We’re not keeping up with modern trends followed by enlightened nations everywhere!

Is anyone really troubled by this?  Ours was the first true written constitution, and it has served us well.  Other nations have them because our form of government has served as a model.  But there is a big difference between writing words on paper and actually living up to the concepts they express.  History shows that lofty ideals often are written in the otherwise ignored “constitutions” of repressive regimes.

Let’s not forget, either, that our Constitution was designed to sketch our government, its officers, and its functioning in broad strokes, allowing for flexibility and development over time.  In contrast, the “constitutions” described in the study sound more like statute books that leave little room for creativity and the need to respond to unexpected circumstances — like a crappy economy that interferes with the “right to work.”  The Greek Constitution, for example, includes “right to work” provisions.  How’s that working out for Greeks these days?

So, I don’t care if our Constitution has fallen out of favor with the camp followers who are drafting constitutions these days.  I’ll listen when their so-called “constitutions” have endured for 225 years, survived a civil war, and allowed their countries to become the most prosperous, democratic countries on Earth.

Provocative Lawsuits, And The Constitutional Rights Of Killer Whales (II)

I’m happy to report that sanity reigns in San Diego — in the federal court, at least.

Only two days after hearing argument, U.S. District Judge Jeffrey Miller dismissed a silly lawsuit brought by the People for the Ethical Treatment of Animals that argued that five killer whales are subject to the 13th Amendment of the U.S. Constitution and were being held in “slavery” by Sea World.  The judge ruled, quite correctly, that the 13th Amendment applies only to humans, and stated:  “As ‘slavery’ and ‘involuntary servitude’ are uniquely human activities, as those terms have been historically and contemporaneously applied, there is simply no basis to construe the Thirteenth Amendment as applying to non-humans.”

PETA’s lawyer says the organization will now decide how to proceed, and presumably will consider whether to appeal the dismissal of the case to the Ninth Circuit Court of Appeals — traditionally viewed as the most liberal of the various federal appellate courts.  If PETA decides not to appeal to that forum, it will tell us a lot about whether the whole purpose of the lawsuit was simply to elicit the publicity that PETA craves.

Provocative Lawsuits, And The Constitutional Rights Of Killer Whales

The BBC reports on a lawsuit by People for the Ethical Treatment of Animals against Sea World.  The case argues that killer whales have rights just as humans do and that keeping such whales in captivity violates the constitutional prohibition against slavery.

The lawsuit is pending in federal court in San Diego and purportedly was brought by five killer whales as the plaintiffs.  The court held a hearing yesterday to determine whether the lawsuit could proceed.  The BBC article above quotes the lawyer for the killer whales as saying:  “For the first time in our nation’s history, a federal court heard arguments as to whether living, breathing, feeling beings have rights and can be enslaved simply because they happen to not have been born human.  By any definition these orcas have been enslaved here.”

I was sorry to read these news articles, because the principal point of such lawsuits seems to be to attract media attention.  No rational person, or lawyer, could really contend that our constitutional protections were written to protect, or should be read to extend to, killer whales or any other animal.  But such provocative lawsuits allow advocacy organizations, for the price of a filing fee, to gain a platform from which to espouse their views and then hope that any resulting news coverage will encourage like-minded people who read such articles to contribute to the cause.

The news media would do us all a favor by ignoring this kind of legal grandstanding.  I suppose I should, too.

Reasonable Expectations Of Privacy In A Digital Age

Earlier this week the Supreme Court decided an interesting case that begins what will be a long process of determining how the criminal justice protections of the Constitution apply to knotty issues raised by our increasingly linked-in, networked, mobile device-oriented age.

The case raised the question of whether prosecutors could attach a GPS device to a suspect’s car and track its movements for 28 days without getting a warrant.  The Court ruled, unanimously, that such conduct constituted an unreasonable search and seizure.  However, the Court split on the question of the nature and extent of the constitutional violation.  The majority opinion focused on the fact that prosecutors had physically attached the device to the suspect’s vehicle without consent.  The concurring opinions, however, raised broader questions of how the government may apply electronic surveillance to suspects in an age where people carry cell phones and send unencrypted text messages and cars broadcast their locations.  Do we have as much of a reasonable expectation of privacy in such information as we do in, for example, documents kept in a file folder in a locked desk drawer in our homes?

The Supreme Court’s latest decision is an example of how the law often has to follow, and respond to, technology.  The Fourth Amendment language on searches and seizures and warrants was written in the days of travel on horseback, flintlock pistols, and communication limited to face to face conversations and written letters.  The Supreme Court has had to revisit how the Fourth Amendment applies with the development of the telegraph, the telephone, and the automobile, and now it will need to do so again in our mobile information age.

I’m glad the Court came down, unanimously, against a warrantless attachment of a GPS device on a car — but that seems like a pretty extreme case.  The closer cases will tell the tale.  And one of the fundamental questions is likely to be:  does the prevalence of mobile devices, and the abundance of personal information we routinely carry and communicate to just about everybody, make it more or less reasonable for us to view that information as private?

The “Health Care Reform” Law Hits The High Court

It is looking increasingly likely that Supreme Court will hear an appeal of the ever-controversial “health care reform” law, and soon.

Both sides to a lawsuit — the Department of Justice in favor of the law, and 26 states and the National Federation of Independent Businesses in opposition — have asked the Court to accept an appeal and decide whether the law should be upheld or struck down as unconstitutional.  The Supreme Court has the discretion to decline the appeal, but the fact that the appellate court declared the law unconstitutional, and the fact that both sides to the case are seeking review, should increase the chances the high court will hear the case.

Stripped of its partisan baggage, the appeal poses a fascinating legal issue:  how far does Congress’ power to regulate interstate commerce extend?  In prior cases, the Court has articulated an expansive view of that power.  However, opponents of the new law argue that this case is different because Congress — through the “individual mandate” provision that requires all citizens to buy health insurance — is for the first time assuming the power to compel unwilling citizens to engage in commerce.  Proponents of the law respond that, when it comes to health care, every living American is already affecting commerce, because those who don’t have insurance and then need health care are imposing economic burdens on the rest of us.  A Supreme Court decision on this issue would go a long way toward defining, once and for all, the full extent of Congress’ power to regulate the daily lives of Americans.

If the Supreme Court takes the appeal, it would be likely to rule in the summer of 2012 — just before a presidential election where the wisdom of the “health care reform” law is likely to be a very hot topic.  And the decision will come against the backdrop of a recent report that shows a sharp increase in health care costs, which undoubtedly will cause Republican candidates to blame the unpopular new law and redouble their attacks on it.

Congress And The Constitution

Earlier this week, after the new Congress was seated, members of the House of Representatives read most of the Constitution aloud.  The decision to do so was surprisingly controversial.  Some pundits contended that the reading of the Constitution was a sop to “tea party” activists, and others suggested that the Republican majority of the House was treating the Constitution as if it were some kind of sacred document (which, in a very real sense, it is).

You wouldn’t think that the reading of our country’s foundational document — the one that establishes the structure of our government, identifies its three branches and defines their powers and responsibilities, and articulates the rights of American citizens — would provoke such a firestorm.  Why shouldn’t members of Congress and CSPAN viewers be reminded of what the Constitution actually says?  And to those who say the House of Representatives was just wasting time, I would respond that the floors of the House and the Senate have often been commandeered by members to address minutiae, in the form of turgid speeches about arcane issues like National Olive Month or the accomplishments of a local high school marching band. The simple, precise language of the Constitution is vastly superior to 99.9% of the commentary ever heard in the House or Senate.

I’m not sure that reading the Constitution aloud will have any impact on how this Congress does its job.  But I also don’t see how it can possibly hurt, either.  Every once in a while, it is useful to remember your roots, and your purpose.

Exploring The Limits Of Constitutional Power

Today a federal district court judge in Virginia ruled that the “individual mandate” provision of the “health care reform” legislation — that is, that portion of the statute that would require people to purchase health insurance or pay a penalty — is unconstitutional.

Judge Henry Hudson concluded that the individual mandate “exceeds the constitutional boundaries of congressional power.”  He found that the commerce clause, which gives Congress the authority to regulate interstate commerce, does not permit Congress to regulate a person’s decision not to purchase a product.  Although there are other court rulings that have upheld the “health care reform” legislation, Judge Hudson’s decision is significant because it reflects an interesting approach to skirting the broad powers afforded Congress through the commerce clause.  In effect, Judge Hudson is saying that if individuals choose not to purchase a good or service they are not engaged in commerce, and therefore they necessarily are beyond Congress’ regulatory power under the commerce clause.

Of course, this issue will be addressed by federal appellate courts and, ultimately, will be decided the Supreme Court.  Until then, it is an issue that Americans of all political stripes may well want to consider.  Supporters of the “health care reform” legislation want that law to be upheld — but do they really want a court ruling that says that Congress can force Americans to buy products or take other actions in furtherance of commerce?  In other instances, federal law requirements are simply attached to a decision and therefore become part of the individual decision-making process.  If I want to work, for example, I have to pay Social Security and have income tax withheld from my wages.  If I don’t want to pay Social Security, I can choose not to work.  With the “individual mandate,” however, there is no choice.  Simply by virtue of being an American, you become obligated to buy health insurance.

When we speak of constitutional doctrine, we have to take the long term view and look past the relative merits of the statute at issue.  If the Supreme Court rules that Congress has the constitutional power to force us to buy health insurance, what’s next?  Smoke alarms?  Government bonds?  Subscriptions to the Congressional Record?  And if we think the corruption and influence of lobbyists is out of control now, what will it be like if corporations and interest groups learn that, through some deft lobbying work, they can achieve passage of legislation that will require us to spend our money for their goods and services?

Thoughts On The Framers

The networks are saying that the U.S. House of Representatives will flip to the Republicans, but the Senate, in all likelihood, will stay with a Democratic majority.

If I recall my high school Civics class correctly, the House was supposed to reflect the passions of the American people, but the Senate was supposed to be largely immune from those passions.  In this election, it looks like the House results are reflecting the passions, as the Framers intended.  In many states, the House Democrats who voted in favor of broad expansions of federal governmental power and significant deficit spending are being wiped out.  The message in favor of a smaller, less intrusive, less costly federal government seems clear.

In the Senate, the World’s Greatest Deliberative Body has not been quite as driven by those voter passions.  New, conservative candidates like Rand Paul and Marco Rubio have won in some races, but in other states the voters have rejected some of the more fringe-oriented candidates — like Christine O’Donnell in Delaware.  Of course, the design of the Constitution means that more than 60 of the Senate did not stand for election in this cycle.  These current Senators will deal with the new members of the Senate but also will be thinking, hard, about what the political climate will be when they stand for reelection in two years, or four years.

The Constitution was carefully designed to have a bicameral legislature with houses with different interests and different perspectives.  In this election, that careful design seems to have worked as intended.

A Fine Line And A Delicate Balance

The disturbing “gatecrashing” incident at the White House has resulted in one of those difficult judgment calls that Presidents and their legal counsel inevitably are required to make.  The incident is, quite properly, being investigated by Congress.  Congress no doubt will look at how the security breach occurred, consider how it could have been prevented, and evaluate whether new laws should be enacted to better safeguard the safety of the President and his family and to provide more appropriate punishment for White House trespassers.

The judgment call was presented when Congress asked the White House social secretary, whose office planned the dinner, to testify at the hearing.  She has declined, citing separation of powers issues.  Separation of powers, of course, is the elusive, flexible concept that the three branches of government should stick to their designated constitutional roles and not interfere unduly with the each other’s core activities.  The concept is elusive because the three branches routinely interact.  Congress, with the power of the purse strings and the power to independently investigate, often looks into how the executive branch and the courts function and writes budget and substantive legislation that directly affects the operations of its coordinate branches.

The Constitution doesn’t say a lot about separation of powers.  It is largely a doctrine of judicial creation, developed through a series of cases decided in the centuries since the Constitution was written.  Because it is not well defined, the judgment call comes in deciding when to invoke the concept and when to accede, while reserving all rights, in what seems like a reasonable request by a coordinate branch.  If the President is savvy in waiting to invoke the doctrine until instances where the facts and equities make his case an especially compelling one — say, if Congress sought to force the President’s national security advisor testify about the process the President followed in deciding how to exercise his powers as Commander-in-Chief — then he may create another useful precedent that will expand and strengthen the application of the doctrine.  If, on the other hand, the President repeatedly seeks to avoid any congressional scrutiny through separation of powers arguments, then a judicial challenge may produce a decision that greatly restricts the use of such arguments in the future.  (Of course, there also are political costs to a routine refusal to cooperate in investigations because it looks like the executive branch is stonewalling and overly secretive.)

It is always easy to second-guess judgment calls.  However, I think it is reasonable to question whether the office of the Presidency is well served by refusing to allow the White House social secretary to testify under these circumstances.  Party planning is not a core executive branch function, and Congress’ interest in determining whether the President’s security procedures need to be enhanced is strong.  If the refusal to testify is challenged in court, I am not sure that the equities tip in favor of shielding a social secretary from answering questions about how an uninvited couple that hopes to participate in a reality show was able to get into a high-security state dinner at the White House.