Not surprisingly I was pleased to see that my idea of constitutional hardball plays a role in Levitsky and Ziblatt's book on How Democracies Die (op ed here). Here I want to reflect on strategies once the game has started and you want to get it to stop. Levitsky and Ziblatt's book has the obvious prescription for Republicans -- the remnants of the "establishment" should do what they can to change the players on their side. For Democrats, though, their strategies involve policy prescriptions, not "moves" in the immediate game. What can Democrats do on a day-by-day basis in the game of constitutional hardball when their ultimate goal is to reinstitute the norms that Levitsky and Ziblatt treat as essential to sustaining a democracy?

The starting point is that Democrats today have relatively little power. So, one possibility is simply to model the behavior they think appropriate norms require -- what Levitsky and Ziblatt call norms of toleration and forebearance. This might include being open to discussion about Republican priorities, such as real repairs to the Affordable Care Act and compromises on immigration policy, and refraining from using every possible procedural tool in the minority's hands to delay legislation and appointments. From my partisan perspective as a relative outsider (no one in Congress has ever called me except to ask for a contribution), it looks to me as if Democratic party leaders are pretty much doing that, though I suspect that people situated similarly to me but on the other side of the partisan divide see it otherwise. (I refer to Democratic party leaders because there are [always] outliers who go off-message -- the problem, as Levitsky and Ziblatt see it, is that those who used to be outliers in the Republican Party are now in the center.)

Another possibility is to use the "weapons of the weak": As enumerated by James Scott, "foot dragging, dissimulation, desertion, false compliance, pilfering, feigned ignorance, slander, arson, sabotage, and so on." Scott's list derives from his work on peasant resistance, so some of the strategies are obviously inapposite to U.S. politics at the congressional level (except perhaps metaphorically). My sense is that Democratic party leaders have done some of this, and that the Democratic"base" would like them to do more. But, there's an obvious tension between this possibility and modeling appropriate behavior. Having been an advocate for more use of the weapons of the weak, I guess I think that such advocacy is a good thing because it holds the leaders' feet to the fire -- that is, it reinforces the idea that they do have to do something to show that they are not happy with the current rules of the game.

That last point seems to me relevant to the possible courses of conduct if -- one hopes, when -- Democrats regain some degree of formal power, such as by winning a majority in the House of Representatives. Here, I think, Levitsky and Ziblatt's emphasis on the norm of forebearance is really important. It's one thing for Democrats in the minority to talk about impeaching the President; it would be another, and in my view quite a bad thing on evidence currently available, for a Democratic majority in the House actually to do so. Somewhere in their book Levitsky and Ziblatt quote my observation that the Clinton impeachment breached a norm that impeachment in the House without a realistic possibility of conviction in the Senate was inappropriate. That would be true of a Trump impeachment (again, on current evidence). Still, it might not be terrible for Democratic party leaders to know how deep opposition within their base is to the President, so it might not be that bad for more or less random people -- commentators, stray members of Congress -- to go around talking about impeachment.

What if the Democrats' formal power includes a slim majority in the Senate? From my narrow perspective, the confirmation process is what matters. People like me think that tit-for-tat is the right strategy: Slow walk court of appeals nominations to the point of immobility, and hold any Supreme Court vacancy open until the next election. Real politicians have a different view, and -- on Levitsky and Ziblatt's analysis -- they are probably right. I can report that the "hold the seat open" strategy has almost no traction among political insiders. Rather, Democratic insiders seem likely to insist on a Garland-like nomination -- not someone from the highly touted Federalist Society list, but some more-or-less standard, relatively obscure but reasonably well thought of, and relatively old George W. Bush appointee to some court of appeals. And, of course, they know how to play the political game much better than I do, so I'm down with that strategy (subject to the "hold their feet to the fire" point about outsider advocacy).

And, finally, what about the (remote) possibility of Democratic control of Congress and the Presidency? Lots of things can change between now and the imagined then. I've tried to put Court-packing on the agenda, with no direct success (although I think I've managed to budge the needle a bit to the point where people who think about these things are now willing to entertain the possibility that some sort of"tit" is appropriate for the Republicans' "tat" in blocking Garland's confirmation; it's just that Court-packing isn't yet thought to be the right response). My guess is that normal processes of age, debilitation, and death will reduce the imperative Democrats might feel to do something -- just as happened after 1937. Still, it's unrealistic to think of Samuel Alito and Neil Gorsuch, much less John Roberts, following the courses taken by Willis Van Devanter (about whom I keep threatening to write an article), George Sutherland, and Charles Evans Hughes. So, again, I suspect that the "feet to the fire" practice should continue.

On January 4, 2018, Attorney General Jeff Sessions issued a memorandum rescinding the prior policy of the Department of Justice (DOJ). This prior policy, spelled out in the so-called Cole memo, instructed “federal prosecutors to de-prioritize marijuana-related prosecutions in those states — except in certain cases, such as when there were sales to children, gang-related activity, or diversions of the product to states where it remained entirely illegal?” (NY Times article) The new policy emphasizes that DOJ prosecutors should pursue marijuana prosecutions just as it pursues every other criminal activity.

The implication of the new policy is that activity involving the cultivation, distribution and even possession of pot—activity that was legal under state law, and that people thought, relying on the Cole memo, was not going to the basis of a prosecution under federal law—can now form the basis of a federal prosecution. The question I want to raise is: would such prosecutions be constitutional?

In favor of prosecution, one can say that it’s always been obvious that the federal law was out there and that it is not negated by any state law to the contrary.

On the other hand, the Cole memo gave people reason to rely on the thought that the federal law was effectively nullified as long as they operated within certain limits. To prosecute them now is to “spring a trap” on them. (quoting Posner, dissenting in U.S. v. Wilson, 159 F.3d 280,289 (7^th Cir. 1998)).

The constitutional hook for the defense is the due process clause. It is well known that the due process right not to be prosecuted based on the difficulty of knowing the law is a very limited right. Lambert v. CA, 355 U.S. 225 (1957) held that there was a due process right against conviction when the crime was “wholly passive,” the law was merely “for the convenience of law enforcement agencies,” and there was nothing about the circumstances to “alert the doer to the consequences of his deed.” But as Justice Frankfurter foretold in his dissent, the decision turned out to be “a derelict on the waters of the law.”

On the other side, there are a number of decisions rejecting the defense that a defendant could not have predicted that his behavior would be against the law. I could cite many, but I’ll go with just one set of cases, the Albertini cases and the S.Ct. decision in U.S. v Rodgers, 466 U.S. 475, 484 (1984). In the former, the 9^th circuit held that a defendant could not be prosecuted for trespass when he lived in state in the 9^th circuit and relied on 9^th circuit precedent that held that he had a First Amendment right to protest on a military installation, even if the Supreme Court later overruled the 9^th Circuit’s holding on his right to protest on a military base. But in the Rodgers case, the Supreme Court rejected that defense, holding that “the existence of conflicting cases from other Court of Appeals made review of that issue by this Court and against the position of the respondent reasonably foreseeable.” In other words, under the Rodgers decision, Albertini would have had no defense.

One could easily imagine a prosecutor arguing that it was always reasonably foreseeable that a new sheriff would come to town and decide to enforce the federal marijuana law, and that those who buy or sell pot had no right to rely on their state law permitting it and the federal policy not to enforce the federal law.

The question is: could the defense mount a compelling case that such a move would violate due process? It could go in two ways:

Both strands could be reinforced with the thought that fundamental fairness, the principle of legality, and the principle behind the ex post facto law, all require that a decision to start enforcing federal law, law that the DOJ had publicly stated would not be enforced, can only result in prosecutions for activity that violates that law going forward, not retroactively.

If I were to bet on this, I’d bet heavily that the due process clause would not be found to protect those who relied on state law and federal policy. But as a matter of justice, it is clear to me that this would be a failure of fairness, legality and true due process norms.

Alec Walen is Professor of Law at Rutgers-Camden School of Law. You can reach him by e-mail at at awalen at camden.rutgers.edu.

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