//  12/5/18  //  Commentary

By executive order of President Donald Trump, the federal government will close on Wednesday December 5 “as a mark of respect for George Herbert Walker Bush, the forty-first President of the United States.”  This is in keeping with what seems to be the standard practice of declaring a national day of mourning on the day of a former President’s funeral.  There is, however, a small problem with this practice.  It violates the text of a statute that has been on the books since 1893: “An Executive department may not be closed as a mark to the memory of a deceased former official of the United States.”  5 U.S.C. 6105.

When President Nixon was planning to close the government in observance of the funeral of former President Eisenhower, he submitted a draft of the executive order to the Justice Department’s Office of Legal Counsel for form and legality review.  Then-Assistant Attorney General William H. Rehnquist signed off on the order and wrote a brief opinion explaining why section 6105 did not apply.  The opinion relied on (flimsy) evidence that the enacting Congress did not intend the law to apply to closures by the President (only by department heads) and on the assertion that applying the statute to the infrequent closures ordered by a President on the occasion of a former President's funeral would not advance the statute's purpose.  Rehnquist's opinion appears to be the precedent that has justified closing the government for the funerals of former Presidents Ford, Reagan, Nixon, Johnson, Truman, and Eisenhower. 

But if "we are all textualists now," as Justice Kagan famously declared and Justice Kavanaugh happily repeated at his confirmation hearing, then the Rehnquist opinion will not do, for it is quite plainly not a textualist opinion.  Its reliance is placed almost completely on intentionalism (what did the Congress that enacted the law intend or what would it have intended had it considered the matter) and on purposivism (what reading of the statute will advance its purpose).  Indeed, Justice Rehnquist's opinion more closely resembles that textualist bete noir Holy Trinity Church than anything that ever issued from the pen of his OLC successor, Antonin Scalia. 

Is there a principled textualist justification for the coming government closure?  The plain meaning of the statute seems clearly to forbid any closure no matter who orders it.  The final paragraph of the Rehnquist opinion offers a suggestion.  He asserts, without citing authority, that "[g]enerally, statutes which refer to 'officers' or 'officials' of the United States are construed not to include the President unless there is specific indication that Congress intended to cover the Chief Executive."  The problem is that this assertion is just plain wrong.  If it were true, then the federal bribery statute would not apply to the President because it covers "public officials" and the definition of that term does not specifically mention the President.  It might not even cover the person who pays the bribe to the President as the statute prohibits payments that influence "official acts" and, by Rehnquist's reasoning presidential acts may not be construed as official acts.  similar examples abound.  Indeed, the assertion is a sort of germinal Torture Memo -- laws do not apply to the President. 

A more charitable reading of Rehnquist's opinion would take him to be asserting the familiar avoidance canon -- a statute should not be read as applying to the President if doing so would raise a serious constitutional issue.  But the predicate for the avoidance canon (a constitutional issue to be avoided) is absent with respect to section 6105.  Congress has full authority, under the Necessary and Proper Clause, to determine when or whether a department or agency may be closed for anyone's funeral, even a former President's. 

It seems natural to dismiss the statute as trivial (the final sentence of Rehnquist's opinion does just that).  What really is the harm in observing the usual rituals surrounding the death of a former President?  But if we abandon textaulism when the issue is small or when we don't like the result it seems to demand, maybe we aren't really all textualists now.  After all, Justice Kagan's comment echoes Milton Friedman famous contention that "we are all Keynsians now," which really meant that "Keynesian" no longer meant much of anything. 


Thoughts on Roberts and Trump

11/26/18  //  Quick Reactions

We have at once a highly political appointment process and a strong judicial ethos of being above politics.

Zachary Price

U.C. Hastings College of the Law

Versus Trump: Versus Whitaker (JH solo)

11/15/18  //  Uncategorized

On this week's episode of Versus Trump, Jason has a solo episode where he talks about a motion by Maryland contending that Matthew Whitaker was not legally appointed as Acting Attorney General. Listen now!

Jason Harrow

Equal Citizens

Federalism and the Senate

11/15/18  //  In-Depth Analysis

Nothing valuable about our federalism depends on letting each state appoint the same number of representatives in the Senate

Richard Primus

University of Michigan Law School