Saturday, October 25, 2008
This Saturday evening's article is Rosalie Berger Levinson, Reining In Abuses Of Executive Power Through Substantive Due Process, 60 Florida Law Review 519 (2008).
I have a definite soft spot for constitutional law scholarship that bridges the conventional divide between "rights" and "structures" - - - a divide many of us believe is more artificial than real. So when I saw an article entitled "Reining In Abuses Of Executive Power Through Substantive Due Process," I put it on my "must read" list. I'd like to suggest you put it on your list as well. Executive power continues to be a "hot topic" and Levinson provides a rarely discussed perspective.
Here is the first line:
Substantive due process is one of the most confusing and most controversial areas of constitutional law.
Not original, but always a necessary reminder. And it makes a nice quote to start class discussions of substantive due process.
Yet Levinson's argument is not so simple. After a nod to the reasons for the confusion and controversy, Levinson links the due process clause to the Magna Carta through a quote by the former Chief Justice Rehnquist in Daniels v. Williams, 474 US 327, 331 (1986). And then Levinson begins to sail. For she is not about to merely rehearse the confusions and controversies of substantive due process. She means to demonstrate its usefulness as a tool.
Here's the "roadmap" section of the article:
This Article asserts that courts should recognize substantive due process as a meaningful limitation on arbitrary abuses of executive power and that victims of such abuse should not be relegated to the vagaries and increasing hurdles of state tort law. Part II of this Article briefly summarizes the origins and development of substantive due process as a limitation on legislative, judicial, and executive power. Part III critiques the positions adopted by federal appellate courts regarding substantive due process as a limitation on executive power. Finally, Part IV addresses separation of powers and federalism concerns, and suggests ways for government employees, arrestees and detainees, students, and landowners to use substantive due process as a meaningful restraint against misuse of executive power.
60 Fla. L. Rev. at 524.
For me, two aspects of this article stand out. First, I am appreciative of Levinson's treatment of the so-called "lower courts" treatment of the issues. Although I would have preferred more discussion of the circuit court cases in the text rather than the notes, the footnotes make fascinating reading. They also provide a wonderful survey of due process argument possibilities, useful for in-class problems and other teaching materials.
Second, the combination of cases involving government employees, arrestees and detainees, students, and landowners provides ways of thinking about due process generally while exploring different doctrinal pathways. Levinson keeps the cases distinct, yet the overlap and reverberations are obvious.
Levinson's argument that the due process clause can be - - - and should be - - - used to curb executive power. "There is no justification," she writes, for a restrictive construction of the substantive due process when "a plaintiff can establish that government officials have abused their power by arbitrarily depriving her of a property or liberty interest within the historically broad meaning of those terms." Id. at 587.
Of course, many will disagree and raise many justifications - - - which is what makes the substantive due process clause so "controversial." But Levinson provides a compelling argument worth consideration by ConLaw Profs as well as by litigators.
The article is available on Westlaw and Lexis.
A sharply divided Fourth Circuit ruled en banc this summer in Al-Marri v. Pucciarelli that the President had authority under the AUMF to detain a foreign citizen legally residing in the U.S. as an enemy combatant, but that the government failed to provide Al-Marri sufficient process to challenge his designation as an enemy combatant (thus violating principles in Hamdi).
This is a wonderful problem to supplement casebook materials on military detention: The several--and lengthy--opinions from Fourth Circuit judges in this novel case offer thorough discussions and competing understandings of both the canonical cases and the most recent cases in the war on terrorism. And the parties' arguments set out the constitutional positions. (The Brennan Center for Justice collects all the case materials here; thank you.) For the best of the parties' arguments, check out Al-Marri's original complaint, Al-Marri's Fourth Circuit brief, the government's opposition brief, and Al-Marri's cert. petition.
For a different take, you might check out a couple amicus briefs in support of cert. filed just this week. SCOTUSblog reports on amicus filings in the case here. (Thank you.) First, former Attorney General Janet Reno, former federal judges, and former U.S. Attorneys and DOJ lawyers argued that the U.S. criminal justice system is perfectly capable of dealing with those accused of plotting or engaging in terrorism. The institutional arguments in this brief well complement the constitutional issues at the Fourth Circuit. From the brief:
In this extraordinary case, the Fourth Circuit has held that the government has the power to arrest and imprison indefinitely anyone in the United States whom the government suspects of being a potential terrorist, without the normal procedural protections found in the criminal justice system. Most disturbing, the Fourth Circuit's decision applies fully to United States citizens; under the Fourth Circuit's rationale, American citizens may be imprisoned indefinitely merely upon the suspicion of being linked in some way to potential terrorism.
This unprecedented expansion of Executive authority within the borders of the United States is not only at odds with more than 200 years of history, but it is wholly unnecessary. The United States criminal justice system is well-equipped to prosecute those accused of planning or committing terrorist acts . . . .
In another amicus, con law professors argued that the Court needs to address unresolved issues of Executive authority in the war on terrorism. This, too, complements the constitutional issues at the Fourth Circuit, and, as law prof amicus briefs often do, provides an excellent review of the constitutional issues. From the brief:
In its few prior decisions related to the war on terrorism, the Court has not yet addressed these crucial questions of Executive authority and individual liberty, and its guidance on those issues is needed. Such guidance is necessary both to afford the Government guideposts as to the appropriate scope of its detention authority and to provide it with the option to seek additional legislation if needed. A decision of the Court is likewise essential for Petitioner to determine whether his indefinite detention without trial is warranted and to avoid prejudice should there ultimately be further proceedings on remand to the district court.
Friday, October 24, 2008
With all the other election news in the news, perhaps you've missed this tidbit from the Big Apple:
our city council has voted to abolish term limits to allow the current mayor, Michael Bloomberg, to run for his third term, as will a number of other city officials.
The problem? The voters of NYC voted for two-term limits in 1993 and 1996.
The legal strategies? Multiple. According to a New York Times article, two lawsuits have already been filed and more are contemplated. One strategy will undoubtedly concern equal protection and racial classifications - - - term limits have worked to allow more racial minorities to be elected to city positions. There will also be strategies under the state constitution and city charter. As the NYT article reported:
“We’re all gearing up for a herculean fight,” said Norman Siegel, a civil liberties lawyer. Last week, he and 16 other lawyers and academics met at a law firm in downtown Manhattan to brainstorm, debate and define the best legal strategy to fight the term limits change.
Not everyone agrees that the term-limits change should be challenged: a NYT editorial on Wednesday urged the city counsel to change the term-limits law that had been approved by the voters. While those with longish memories will recall that Mayor Rudolph Giuliani unsuccessfully argued that he should be allowed to run for a third term post-September 11, 2001, it seems that the man New Yorkers call "Mayor Mike" or even "Millionaire Mayor Mike" has succeeded where Giuliani failed.
Although the courts might change that.
Hello fellow law teachers! Let's see what's out there for the week of October 19 . . .
The ACLU blog has a first-hand account from Ms. Jessica Lenahan describing her experiences with domestic violence. The relevance to your class? Ms. Lenahan was formerly known as Jessica Gonzales, the plaintiff in Gonzales v. City of Castle Rock. Although she lost her claim in the Supreme Court, she is now alleging that the actions of the city violated her international human rights. This is a good story to share with your students to let them know: 1) real people are behind these cases; 2) international law can be a valuable alternative source of rights; and 3) creative lawyers should find alternatives, even when they think all paths have exhausted.
Over at the Legal Times, Robert Levy of the Cato Institute has an interesting piece entitled, "Is the Bailout Constitutional?" Levy begins by questioning the Congressional authority for the bailout, arguing that it is beyone Congress' commerce clause powers. I, for one, think this is problematic for two reasons. First, the analysis overlooks the fact that the United States banking industry almost assuredly has an impact on interstate commerce. Second, having read EESA in its entirety, it seems clear to me that the legislation is predicated upon Congress' spending powers, which are far broader than those granted by the Commerce Clause. However, I think Levy is on surer footing when he states that even if Congress posseses the authority to act, there are serious issues of delegation raised by the statute as written. However, given the Court's reluctance to invalidate a statute for lack of an "intelligible principle" for the past 75 years or so - up to an including Whitman - it's unlikely that the Court will agree with Levy. However, he is absolutely correct to raise the question, especially in light of the impact that EESA will have on our economy and our day to day lives.
In Supreme Court news, USA Today ran an interesting story about Former Justice Sandra Day O'Connor's talk at a legal forum in Mexico City. Among the highlights: 1) her reluctance to express any regret over the widely decried decision in Bush v. Gore. She stated that independent journalists had confirmed the result through their own recounts, and she has "stopped losing sleep" over the outcome; 2) her strong defense of Planned Parenthood v. Casey and the role of stare decisis in law. According to O'Connor, "a Supreme Court ruling should be overturned only when historical or social conditions surrounding an issue have changed — not simply because of a change in the court's makeup;" 3) her defense of the decisions from the Court in Hamdi, Hamdan, and Boudendine, which granted significant rights to persons held as enemy combatants in Guantanamo Bay.
Over at concurring opinions, Danielle Citron has a piece about agency activity prior to a presidential transition. While you might think that agency activity would be reduced during the lame duck portion of a presidency, Professor Citron notes that a forthcoming article by Professor Anne Joseph O'Donnell indicates that such activity increases, rather than decreases, immediately before a president's departure.
Finally, over at the Volokh Conspiracy, Johnathan Adler reports that the Sixth Circuit has announced a dormant commerce clause decision that distinguishes the Court's decision in Granholm v. Heald. A link to the Sixth Circuit case as well as excerpts of the relevant cases can be found in Adler's article.
That's all for this week. Happy Teaching!
Thursday, October 23, 2008
The ACS hosted a panel discussion and released a package of proposals for a new administration to reform everything from DOJ civil rights enforcement to legal advice for the president to government secrecy.
Here are some highlights:
Janet Reno and Geoffrey M. Klineberg, What Would Jackson Do? Some Old Advice for the New Attorney General
Senator Edward M. Kennedy, Restoring the Civil Rights Division
Amanda Frost and Justin Florence, Reforming the State Secrets Privilege
Geoffrey R. Stone, On Secrecy and Transparency: Thoughts for Congress and a New Administration
David C. Vladeck, The Emerging Threat of Regulatory Preemption
These are all excellent complements to classes and casebook readings in these areas.
Wednesday, October 22, 2008
Elaine Kaplan, former Special Counsel, and Tim Hannapel, former Deputy Special Counsel, released an ACS Issue Brief titled Reinvigorating the U.S. Office of Special Counsel: Suggestions for the Next Administration. The Brief offers an excellent overview of the Office of Special Counsel and, as the title suggests, solid, practical recommendations for change from two veterans of the Office.
The Brief deals primarily with the history, policy, and politics of the Office--with special mention of the controversies under Scott Bloch--but it also offers something for those of us teaching appointment (and removal) power, separation of powers, and the unitary executive theory. The authors explain:
The Office of Special Counsel is a uniquely independent Executive Branch agency. While there are a number of boards and commissions within the Executive Branch that are composed of individuals who may not be removed by the President except for cause, we are unaware of any other agency led by a single individual (in this case, the Special Counsel) who does not serve at the pleasure of the President. Congress mandated that the Special Counsel be appointed by the President, with Senate confirmation, to serve a five-year term, removable "by the President only for inefficiency, neglect of duty, or malfeasance in office." Like the now-defunct "independent counsels" appointed under the Ethics in Government Act of 1978, these limitations on the President's authority were imposed by Congress because OSC's work may put it at odds with officials in high-level positions in other Executive Branch agencies.
For arguments why the Special Counsel violates separation-of-powers, see Christopher Yoo, Stephen Calabresi, and Anthony Colangelo's article, The Unitary Executive in the Modern Era, 1945-2004, espcially pages 693-94, where the authors discuss the Reagan administration's constitutional objections to the 1988 Whistleblower Protection Act. (I highly recommend Yoo and Calabresi's relatively new book, The Unitary Executive: Presidential Power from Washington to Bush, which expands and elaborates on much in their earlier articles. I'll review the book in a future post.)
The Special Counsel offers a wonderful case study in appointment, removal, separation of powers, and the unitary executive theory. Kaplan and Hannapel's Brief is an especially useful complement to constitutional lessons, because it focuses on the practical, policy, and political side of the Office.
The NYT reports today that the government has dropped war crimes charges against five detainees--including Binyam Mohamed, a former British resident accused in the dirty bomb case--and changed course in its case against six Algerian detainees--including Lakhdar Boumediene--allegedly tied to a Sarajevo embassy bomb plot.
The article, also referencing Jose Padilla's case, does a nice job setting out the government's litigation strategy in these cases to avoid judicial scrutiny of its detention, treatment, and military trial policies and procedures. (Check out Colonel Morris's "pighead" comment, below. Perhaps the government learned a lesson from Hamdan.)
Here are the highlights:
[In dropping the charges, Mohamed's] lawyers argued Tuesday that the government was trying to avoid having to answer his accusations [that the government tortured him]. . . .
The Pentagon's decision to dismiss the cases comes after the former prosecutor, Colonel Vandeveld, said in a military commission filing that he had ethics questions about prosecution procedures for notifying the defense about information favorable to detainees. He called the procedures "appalling" and "incomplete and unreliable."
[Defending the government's decision] Colonel Morris said it was better to review cases "than the opposite, which is show yourself to be so pigheaded that you would stick to the way you originally charged a case" instead of reevaluating it. . . .
For several years, the Bush administration has shifted its legal approach at pivotal moments in legal confrontations over its detention policy--transferring detainees on the eve of hearings and abandoning legal arguments.
"Every time they get near a court they try and figure out a way to avoid court review or evade a decision that has come down," said Michael Ratner, the president of the Center for Constitutional Rights, which has coordinated detainees' cases.
In the Algerians' case, the government did not plan to introduce any evidence about the embassy bomb plot, according to their lawyer. The case will be heard in district court in Washington as soon as next week.
Election day means not only voting for candidates but voting on specific provisions. By my count, more than 35 states have ballot measures in the upcoming election. According to the National Conference of State Legislatures, Ballot Update, as of October 15, 2008,
a total of 152 questions have qualified for statewide ballots. 59 of these are citizen initiatives -- most of the rest were referred to the ballot by state legislatures or, in the case of Florida, the state's Taxation and Budget Reform Commission. Three are questions automatically referred by state constitutions, asking voters if they want to hold a constitutional convention.
Most of the time, the initiative or referendum process is governed by a state's constitution. Citizen initiatives, as the name implies, are placed on the ballot after a requisite number of signatures, and would seem to be the model of direct democracy, although certainly they have been subject to criticism.
Is there a difference - - - or should there be one - - - depending on whether the citizen initiative, or the referendum referred to the ballot by the legislature, would result in a statute or in a constitutional amendment?
Indeed, on the ballot in November in Colorado is Referendum O, referred to the ballot by the legislature, that concerns citizen initiatives and the resulting laws. It lowers the number of signatures required when the result would be a statute and makes it more difficult for the legislature to amend that statute. However,it would make it more difficult to amend the state constitution by increasing the number of signatures and imposing a geographical diversity requirement for signatures.
Recall that Colorado was the source of Amendment Two, which prohibited the state from enacting any laws or policies "whereby homosexual, lesbian, or bisexual" classifications would entitle a person to make a claim of discrimination or protected status - - - the United States Supreme Court declared this provision unconstitutional under the Fourteenth Amendment's equal protection clause in Romer v. Evans, 517 U.S. 620 (1996). And in Colorado this year, 8 of the 10 initiatives on the ballot would seek to amend the state constitution. They include provisions that would ban affirmative action, change the definition of 'person' in the Colorado Constitution to include any fertilized egg, embryo or fetus, and prohibit automatic union dues deductions from public employee payrolls.
Interestingly, many of the otherwise excellent sources for state ballot measures do not first categorize ballot measures by whether they would result in statute or constitutional amendment. Instead, the process by which a measure appeared on the ballot - - - citizen initiative or legislative referendum - - - is a prominent classification. The topic of the measure is also obviously an important feature.
Nevertheless, there are several excellent websites that will assist a Con Law Professor in keeping track of the 152 questions on the ballot in November. In addition to National Conference of State Legislatures, Ballot Update, The Initiative and Referendum Law Institute at the University of Southern California Ballotwatch is excellent, as is the wiki ballotpedia. Less "objective" but with a truly stellar set of maps is Ballot Initiative - - - the interactive map has pop-ups for each state and there is a set of 11 maps for download on "key" issues with great color.
One key issue is, as in years past, is same sex-marriage. California's Proposition 8 would change the California Constitution to eliminate the right of same-sex marriage as found by the California Supreme Court in In Re Marriage Cases, 183 P.3d 384 (Cal. 2008), by defining marriage as limited to one man and one woman. Florida's Amendment 2 would change the Florida Constitution to define marriage as limited to one man and one woman and also provide "no other legal union that is treated as marriage or the substantial equivalent thereof shall be valid or recognized." Arizona's Proposition 102, sponsored by the state legislature, would amend the Arizona Constitution to provide that only a union of one man and one woman be recognized.
For Con Law and other professors, state constitutional law issues provide not only an opportunity for hypotheticals and scholarship, but also for academic activism. The UC-Davis website has a model page offering faculty experts on five of California's ballot propositions and the initiative process itself. What's great about this page is that it not only "lists" faculty experts, but provides their point of view. So for example, we learn that our colleague Diane Marie Amann who teaches ConLaw at UC-Davis does not support Proposition 4 (parental notification and waiting period for minors seeking abortions) and says "contrary to the assertions of some proponents, Proposition 4 would not help prevent sexual predation" and there "is virtually nothing in the text that aims at that goal."
Unfortunately - - - or fortunately -- - here in New York, I have little chance for academic activism on a ballot proposal. Our sole proposal is entitled " Civil service exams" and is described as a "Legislative amendment that makes technical change in condition allowing veterans advantage in exam." Although perhaps I should do some more research....
Tuesday, October 21, 2008
Lyle Denniston at SCOTUSblog reports that the D.C. Circuit (in a 2-1 split) granted the government's motion to stay pending appeal Judge Urbina's order to release the Uighus into the U.S. (See my previous posts on the Uighurs under the Executive Authority tag.) Check out Judge Roger's dissent, especially at page 2 (of the opinion, not the pdf file), which addresses the likelihood of success on the merits of the government's arguments, including the government's separation-of-powers argument--that the political branches have "plenary power over immigration"--which Judge Rogers calls "inadequate and untrue," a "misstate[ment] of the law."
Denniston also reports on the Uighurs' petition for en banc review here.
Thanks to Lyle Denniston and the team at SCOTUSblog for posting the order and petition and for staying on top of this.
UPDATE, 10/23, 4:17 CT: Here's the podcast. Enjoy!
I just got back from a wonderful talk given by Professor Joseph Margulies of Northwestern Law in the first of the ABA's public program series at ABA HQ here in Chicago. Margulies, lead counsel for the petitioner in Rasul v. Bush and author of the outstanding book Guantanamo and the Abuse of Presidential Power, discussed constitutional law, detainee policy, and the human side of detainee representation in this informative and moving event. The ABA story is here. But you'll really want to check out the podcast; I'll post it when it becomes available. This will complement your classes on the Guantanamo cases very nicely.
Adam Liptak (NYT) reported today that Judge J. Harvie Wilkinson III (4th Circuit) and Judge Richard Posner (7th Circuit) criticized D.C. v. Heller, last term's gun-rights case, for its methodology. Particularly, Judge Wilkinson wrote in a Virginia Law Review article, and Judge Posner wrote in The New Republic, that the Court's methodology had some of the same problems as the Court's methodology in Roe v. Wade.
The articles aren't new, and I suspect many of us have been using them and Heller to illustrate and discuss originalism in our classes. (Heller, of course, is a wonderful case study, because both majority and dissent claim to adopt a form of originalism, but they come out very differently.) But Liptak's article, which clearly and concisely sets out the arguments and explores (even if only briefly) the politics of aligning Heller with Roe, gives us yet another way to share these issues with our students.
Here are some highlights from Liptak's article:
"The Roe and Heller courts are guilty of the same sin," one of the two appeals court judges, J. Harvey Wilkinson III, wrote in an article to be published in the spring in The Virginia Law Review.
Similarly, Judge Richard A. Posner, in an article in The New Republic in August, wrote that Heller's failure to allow the political process to work out varying approaches to gun control that were suited to local conditions "was the mistake that the Supreme Court made when it nationalized abortion rights in Roe v. Wade." . . .
In Judge Wilkinson's view, the upshot of the court's extensive historical analysis was that "both sides fought into overtime to a draw."
Others said the quality of the combat was low. "Neither of the two main opinions in Heller would pass muster as serious historical writing," Jack Rakove, a historian at Stanford, wrote on the blog Balkinization soon after the decision was issued. . . .
Judge Wilkinson's basic critique is that the majority, like that in Roe, used an ambiguous text to impose its policy preference on the nation, at great cost to the democratic process. He assumed, as most experts do, that the decision would apply to the states.
"In both Roe and Heller," Judge Wilkinson wrote, "the court claimed to find in the Constitution the authority to overrule the wishes of the people's representatives. In both cases, the constitutional text did not clearly mandate the result, and the court had discretion to decide the case either way."
The Heller decision, Judge Posner wrote in The New Republic, "is evidence that the Supreme Court, in deciding constitutional cases, exercises a freewheeling discretion strongly flavored with ideology." . . .
Mr. Levy, who helped win Heller, said some conservatives wanted almost all decisions to be made by the political branches rather than teh courts.
"But these are constitutional rights," Mr. Levy, now chariman of the Cato Institute, a libertarian research group, said of the rights protected by the Second Amendment. "They are not rights consigned to the legislature."
The analogy to Roe, he went on, is misguided. There is no reference to abortion in the Constitution. . . .
In his article, Judge Wilkinson wrote that he "readily agreed" that Roe "involved the more brazen assertion of judicial authority." But he added that the Roe and Heller cases shared a number of common flaws, including "a failure to respect legislative judgments," "a rejection of the principles of federalism" and "a willingness to embark on a complex endeavor that will require fine-tuning over many years of litigation."
Judge Wilkinson saved particular scorn for a brief passage in Justice Scalia's opinion that seemed to endorse a variety of restrictions on gun ownership. "Nothing in our opinion," Justice Scalia wrote, "should be taken to cast doubt on longstanding prohibitions on the possession of firearms by the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms."
Whatever else may be said about the Second Amendment, Judge Wilkinson wrote, those presumptions have no basis in the Constitution. "The Constitution's text," he wrote, "has little to say about restrictions on firearm ownership by felons as it does about the trimesters of pregnancy."
Monday, October 20, 2008
The Wall Street Journal printed excerpts from Justice Thomas's Wriston Lecture to the Manhattan Institute last Thursday. Here's the last paragraph:
Let me put it this way: there are really only two ways to interpret the Constitution--try to discern as best we can what the framers intended, or make it up. No matter how ingenious, imaginative, or artfully put, unless interpretive methodologies are tied to the original intent of the framers, they have no more basis in the Constitution than the latest football scores. To be sure, even the most conscientious effort to adhere to the original intent of the framers of our Constitution is flawed, as all methodologies and human institutions are; but at least originalism has the advantage of being legitimate and, I might add, impartial.
As I pointed out last week, John McCain stated in the debate that he would like to have a line item veto. As luck would have it, the debate aired the evening before my class and the day after our discussion of Clinton v. New York. As my students and I talked about it, I said, "Well, let's give McCain the benefit of the doubt. Perhaps he meant some revamped version of the line item veto that would be constitutional." However, I then admitted that I was hard pressed to think of such an example.
I've continued to think about this since Thursday morning, and I still can't think of an example. In an especially clear opinion, the Clinton v. New York Court explained why the line item veto violated the cherished principles of separation of powers. So, the options would be to: 1) wait for a majority of the Court to follow Justice Breyer's view and overturn the opinion; or 2) find a way to achieve a similar goal in a constitutional fashion.
That latter point is the focus of Professor Aaron-Andrew Bruhl's recent piece, Return of the Line Item Veto? Legalities, Practicalies, and Some Puzzles. The article explains that the more recent attempts to provide the president with a "line item veto" are not really giving the president any veto power at all. Rather, they would allow the president to make a list of allegedly wasteful spending programs and then return the bill to Congress for a quick "up-or-down" vote on the challenged provisions. Because both the executive and legislative branches are involved, the problem presented by the 1996 Act seems to be avoided. Since the proposal isn't a true line item veto - like the ones held by the governors of forty-three states - it is unlikely that we will ever see the issue presented in Clinton v. New York again.
Why does each president pine for this power? Is it more trouble than it's worth? As Professor Bruhl acknowledges, even the modified proposal might raise legal issues concerning the propriety of essentially forcing Congress to act within a time certain, along with justiciability issues. Moreover, from a policy perspective, it's unclear that giving the president some type of cancellation power will help our budgetary problems. In fact, it might even exacerbate them.
The justices have often said that many problems are not addressed in the Constitution because the Framers trusted that the political winds would guard against the most severe abuses of the discretion granted to the various political branches of government. This issue is a prime example of that truism. Perhaps some sort of "sunshine" law or other type of public awareness campaign could be undertaken to curb the most excessive practioners of pork barrel spending. If John McCain should lose in November, this might be a good place for him to focus his efforts, given his interest in the topic.
The Wall Street Journal reported last week that Bush administration officials "are pushing to rewrite a wide array of federal rules with changes or additions that could block product-safety lawsuits by consumers and states."
At issue is the practice of administrative agencies writing preemption clauses into proposed regulations, sometimes at OMB's behest, even though authorizing legislation does not contain a preemption provision. According to the WSJ, former administration domestic policy adviser Jay Lefkowitz said that the administration decided not to press its preemption agenda in Congress, because it might lose. It apparently has decided to take matters into its own hands.
The administration has argued that the clauses are evidence of federal preemption of plaintiffs' state tort claims, as long as defendants comply with federal law, thus undermining plaintiffs' claims--and protecting corporate defendants--in areas where the federal government regulates.
The Trial Lawyers Association (now the American Association for Justice) was quite critical in its report, after undercovering evidence of the practice through FOIA requests. The Chamber of Commerce's Institute for Legal Reform has been supportive of administration preemption efforts.
The Court may weigh in next month in Wyeth v. Levine, a case involving the federal preemptive effects of the Federal Food, Drug, and Cosmetic Act's labelling requirements. The FDA's preemption clause plays a bit role in briefing on the larger conflict preemption issue, but the administration's amicus brief addresses it squarely in Argument C.2., running from page 26 to page 27 (of the brief, not of the pdf file). The administration writes:
In the preamble to a January 2006 rule concerning the labeling of drugs, FDA explained that the government's "long-standing view" is that "FDA approval of labeling under the [FDCA] * * * preempts conflicting or contrary State law," especially considering that "FDA interprets the [FDCA] to establish both a 'floor' and a 'ceiling'" for labeling. 71 Fed. Reg. at 3934, 3935.
The Defense Department released documents in the government's motion for reconsideration of Hamdan's (of Hamdan v. Rumsfeld) sentence in response to requests by the Wall Street Journal. (WSJ story here; blog here.)
After Hamdan's military commission sentenced him earlier this fall to 66 months, but creditied him for 61 months, the government moved for reconsideration based on the commission's lack of authority to grant credit for time served. The government's motion is here; the defense's response is here; the government's reply is here. (Many thanks to the WSJ and reporter Jess Bravin for obtaining and releasing these.)
The arguments mostly center around the commission's authority (or not) to grant credit for time served under the Military Commissions Act and the Rules for Military Commissions. But pages 4 through 6 of the government's motion discuss wartime authority of the president, particularly authority to detain Hamdan as an enemy combatant (which the government argues is independent of any sentence meted out by the commission).
Sunday, October 19, 2008
Professor Heidi Kitrosser, University of Minnesota, posted two articles last week on ssrn taking on the accountability justification for the unitary executive theory. The theory, of course, has been subject to quite a bit of academic examination. But Kitrosser's critique--especially and uniquely focusing on the slice of the theory related to political accountability--are well worth a read. I highly recommend this pair of articles.
Kitrosser begins her project with The Accountable Executive. Here she argues that "there is a profound bond between the unitary executive theory and executive branch secrecy," and that secrecy, in turn, undermines accountability. And she goes further: the accountability justification for the unitary executive is undermined if this link is even merely arguable, because "then the argument from accountability simply is not so ironclad as to support a categorical unity directive."
The Bush administration gives us plenty of examples, but Kitrosser focuses on these two: the administration's influence upon EPA's decision to deny California's request for a waiver to exceed federal emissions standards; and the White House efforts to block and manipulate NASA's research on climate change. She persuasively argues that these examples illustrate "the negative correlation between a unitary executive and free information flow, and thus between a unitary executive and accountability." At least, she writes, supporters and opponents of the unitary executive theory "should be able to agree on the importance of clarifying the theory's parameters" in the interest of promoting transparency and accountability.
Kitrosser's second paper, Accountability and Administrative Structure, carries the argument forward in three ways. First, she expands her discussion of executive secrecy and lack of accountability to agency structure and argues that "[s]ome separation of [agency] functions and [agency] zones of independence from politics thus are called for so that the relevant actors (be they courts, Congress, the people, the press, or others) may ascertain what is [agency created] law, what is [agency] expertise, and what is politics . . . ."
Second, she adds critiques of formalist justifications for the unitary executive by arguing original intent: "[The] unitarians' core formalist point--that the Constitution's founders clearly understood the vesting of executive power in the President to entail exclusive power to implement legislative directives and to control others who engage in such tasks--not only is wrong, but is wrong partly because the founders were wary of the accountability risks posed by centralized presidential control."
Finally, she offers two additional and persuasive examples: the administration's rejection of EPA's reaction to Massachusetts v. EPA (and the White House's infamous refusal to open the e-mail) and the centralized OMB coordination of agency rule-making; and the politicization of the DOJ.
These articles are crisp and well argued; Kitrosser's examples are instructive and persuasive. Of course, one has to wonder whether the apparent correlation between the unitary executive and secrecy is necessary, or if it's merely a feature of this administration in the examples she offers. Kitrosser would say that it doesn't matter: That the unitary executive theory can correlate with secrecy is enough to show that accountability is no categorical justification for a unitary executive. She makes a good case. I highly recommend these.