December 6, 2008
Saturday Evening Review - poverty essay
Andrew Siegel, Associate Professor of Law at Seattle University School of Law, is worried that the "fate of the poor" in US Constitutional law may deteriorate even further in the future - - - a scary prospect given the current economic crisis.
He provides three trenchant rationales in his remarks from a Symposium at University of South Carolina, entitled From Bad to Worse?: Some Early Speculation About the Roberts Court and the Constitutional Fate of the Poor, 59 South Carolina Law Review, 851 (2008), also available at SSRN: http://ssrn.com/abstract=1291323.
First, he argues that the "existing body of constitutional doctrine takes class more seriously" than the usual "caricature" of it would indicate. Second, he argues that while the Rehnquist Court may not have made any innovations in protecting the poor, it "largely respected the doctrinal status quo." And third, he contends that the Roberts Court "might be unwilling" to similarly respect the doctrinal status quo.
It's this third contention that is most interesting, of course. Siegel names Justice Roberts "more of a radical formalist" than Rehnquist, supporting his claim with a discussion of Parents Involved in Community Schools v. Seattle School District No. 1., 127 S. Ct. 2738 (2007). As befits comments from a Symposium, Siegel provides some personal insight:
I live in Seattle now, and it does not take a genius to understand how disconnected from reality the Court was in that case. I could give you a twenty- minute tour that proves how complicit the city of Seattle was in creating and perpetuating the racial segregation of the school system. Just take a tour and look at how many tiny elementary schools there are that are several blocks from other schools. Why is that? In large measure, I think the record in Seattle suggests it’s because breaking neighborhoods into microneighborhoods allows a city to maintain different schools for different races. If Seattle had built the number of schools that you would expect them to have, they would have had to draw the attendance zones broadly enough to have multiracial schools in a time where that was not particularly acceptable. Or look at the fact that the Seattle school district has drawn up its uniform policies so that in the central cluster where I live the three schools that are predominately white have been able to opt out of a supposedly mandatory school uniform policy. The kids at these schools go to school dressed like children in fashion catalogues, while the children who attend schools that are predominately minority almost all wear uniforms; the result is that everyone knows where these children go to school simply by looking at their uniforms. It is a different kind of discipline, a different kind of marking. (And, I could give you many more examples of the ways in which Seattle maintains what are fundamentally two separate public school systems.)
59 S.C. L. Rev. at 860. Siegel also discusses several other cases, most notably the voter identification case of Crawford v. Marion County Election Board, 128 S. Ct. 1610 (2008), to support his contention that the Roberts Court is "skeptical about real world concerns" and hostile to litigation.
Siegel's essay is brief (suitable for these hectic days at the end of the semester) and provocative (as discussions of socio-economic rights tend to be). It might also provide fodder for thinking about President-Elect Obama's proposals to assist the poor as the economic recession deepens.
Court Grants Cert. in Al-Marri
The Supreme Court announced on Friday that it will review the Fourth Circuit ruling in Al-Marri v. Pucciarelli upholding the president's authority under the AUMF to indefinitely detain a lawful U.S. resident who was both captured and detained in the U.S. as an enemy combatant, without criminal charges. I've posted before on the case here, here, here, and here; the NYT reports here; SCOTUSblog reports here.
Briefs won't be due until after President-Elect Obama's inauguration. Between his inauguration and briefing, Obama could (1) do nothing (and maintain the Bush administration position, supported by the Fourth Circuit, before the Supreme Court); (2) charge Al-Marri in an Article III court under federal criminal law, thus (maybe) mooting the case at the Supreme Court; (3) same as (2), but charge Al-Marri in a military tribunal; (4) reverse the Bush administration position in full and release Al-Marri, (maybe) mooting the case.
(Why "(maybe)" moot? Because it's a classic case of "capable of repitition but evading review." The last time something like this happened--Padilla v. Hanft--the Court denied cert. after Padilla was transferred to civilian custody after an adminsitration-favorable Fourth Circuit decision, rebuffing Padilla's claim that the controversey was capable of repitition but evading review. (Kennedy's opinion here; Ginsburg's here.) Here, the Court has already granted cert., knowing well that it won't hear the case until Obama is president; this could change things.)
(Another interesting issue: How much should--and how much will--the Bush administration defer to Obama's position in formulating strategy at the Court?)
Any of the first three options probably ensure that Al-Marri will remain in detention, at least until the case is decided or until he's served a sentence.
This is a significant--and tough--test for Obama. His decision will signal his position on executive authority in the war on terror in a deeply troubling and far-reaching case. It would be difficult for Obama to maintain the Bush administration's vast claims of executive authority here: The implications of the administration's position--and the Fourth Circuit's ruling--are staggering. But if he backtracks (and if this moots the case at the Supreme Court), the Fourth Circuit ruling stands, and he could be seen as weak on executive authority and weak on terror.
I'll update as we get more.
December 5, 2008
Canada's Constitutional "Crisis"?
As BBC Commentator Justin Webb handily summarizes the situation in Canada:
For anyone who has not been concentrating, the Canadian Prime Minister Stephen Harper, battling to stay in power, has persuaded the country's acting head of state to suspend Parliament so he can avoid being ousted by opposition parties next week. There is talk of coups and separatist plots.
Webb's own take is that there is the possibility that all "western democratic leaders and electors in the coming years" might suffer from "the Obama trap - the approach that looks at the panting, sated Americans and says, "boy I'd like some of what they've had!"" According to Webb:
One of the effects of the Obama phenomenon might be a reduction in respect for the institutions (for instance parliaments and parliamentary government) and for the dullness that is perfectly respectable in political life in the free world.
But Obama trap or not, the Canadian situation is serious. There's good coverage by the BBC, recent article here, and in the Globe and Mail, recent story here, with Harper's statement here, and opposition statement here.
Con Law Prof John Yoo- controversies continue
According to an article in the San Francisco Chronicle, the Berkeley City Council is considering a resolution that John Yoo, Berkeley School of Law (Boalt Hall) law professor, be charged with war crimes and that students at the law school not be required to take a class from him. The ABA Journal has the story here.
Yoo has been the subject of controversy for his role in the so-called "torture memos" from the White House in 2001-2003. The matter continues to be under investigation. According to a piece in The Public Record:
When these probes are complete it will likely spur the incoming administration of President-Elect Barack Obama to implement widespread reforms at the DOJ and the way interrogations against suspected terrorists are conducted by CIA and the military, said two people working on Obama’s transition team. While it’s unclear whether the investigations will lead to recommendations that individuals under scrutiny be prosecuted, the OPR investigation into a torture memo drafted by the DOJ’s Office of Legal Counsel is likely to recommend that the memo’s authors, Jay Bybee and John Yoo, be rebuked for the way in which they interpreted a law that formed the basis of the memo, said people involved in the probe, which is being conducted by the agency’s director H. Marshall Jarrett.
Bybee was the assistant attorney general at the OLC. He is now a federal judge on the United States Court of Appeals for the Ninth Circuit. Yoo was Bybee’s deputy. He is now a law professor at the University of California at Berkeley. Yoo was the principal author of the Aug. 1, 2002 memo and Bybee signed it. It was addressed to Alberto Gonzales, who was the White House counsel at the time.
The OPR investigation into the Aug. 1, 2002 torture memo was launched in late 2004 after the Abu Ghraib prison abuses were documented. Under Gonzales, the OPR has met some resistance in its attempt to obtain documents and interview officials, people familiar with the probe said, in explaining why the investigation is now in its fourth year.
In a letter released in February to Sen. Dick Durbin, who inquired about the probe, Jarrett said, "Among other issues, we are examining whether the legal advice contained in those memoranda was consistent with the professional standards that apply to Department of Justice attorneys."
The probe has centered on Yoo's use of an obscure health benefits statute from 2000 in defining torture. That statue became the basis for authorizing enhanced interrogation methods, the OPR official said.
Yoo and Bybee’s legal opinion stated that unless the amount of pain administered to a detainee results in injury "such as death, organ failure, or serious impairment of body functions" than the interrogation technique could not be defined as torture.
December 4, 2008
President Bush Excludes Agencies from Federal Labor-Management Relations Program
President Bush signed an executive order on November 26, 2008, exempting certain federal employees at the Departments of Energy, Homeland Security, Justice, Transportation, and the Treasury from coverage under the Federal Labor-Management Relations Program, thus barring them from joining a union. WaPo reports here.
Bush's order came under fire from unions and Congressional Democrats. The National Treasury Employees Union expressed outrage in its statement; House Majority Leader Steny Hoyer (D-MD) called the order a "power grab by the executive branch to undermine the rights of federal employees and workers throughout the country."
NY's Bar on 1983 Actions and the Supremacy Clause
The Supreme Court heard oral arguments this week in Haywood v. Drown. At issue: Whether New York's ban on section 1983 damage actions against state correctional officers in state court violates the Supremacy Clause.
A good part of the oral argument focused on whether the NY ban--Correction Law section 24--was "jurisdictional" and a "neutral state rule regarding the administration of the courts." The language comes from Howlett v. Rose, a 1990 Supreme Court case that the lower court cited in support of this: "One permissible exception" that allows states to deny enforcement of a federal right is "when a state court lacks jurisdiction due to a 'neutral state rule regarding the administration of the courts.'"
Is section 24 such a rule? Yes, says the state: It is a jurisdictional limitation based on the state's neutral desire to limit "vexatious" litigation. No, says the plaintiff: It carves out this special exception for correctional officers, treating them differently than all others for 1983 purposes, and reflects the state's substantive disagreement with the remedies under 1983.
The law professors' amicus is quite good; take a look at the excellent discussion of the Supremacy Clause and argument III on this jurisdictional question. Here's the respondents' brief; and here's the oral argument transcript.
December 3, 2008
Just how Conservative is the Roberts Court?
Erwin Chemerinsky (UC Irvine) last month posted The Roberts Court at Age Three on ssrn, arguing that the Roberts Court is the most conservative Court since the mid-1930s. Jonathan Adler (Case Western) responded recently with Getting the Roberts Court Right: A Response to Chemerinsky.
You might also check out these:
-Rochelle Babroff (Nat'l Senior Citizens Law Center), The Early Roberts Court Attacks Congress's Power to Protect Civil Rights
December 2, 2008
The Unbundled Executive
Here's a provocative pair of articles on the merits and demerits of a plural executive:
Christopher Berry (U. Chicago, Harris School of Public Policy) and Jacob Gersen (U. Chicago Law) give a normative argument in The Unbundled Executive for a partially unbundled executive--"a plural executive regime in which discrete authority is taken from the President and given exclusively to a directly elected executive official, for example, a directly elected War Executive, Education Executive, or Agriculture Executive." The idea, of course, is quite familiar to American state government: Executive authority in the states is divided between a popularly elected governor, attorney general, and secretary of state. But we rarely (ever?) hear serious academic discussion these days about a plural Article II executive.
Steven Calabresi (Northwestern) and Nicholas Terrell (Northwestern JD, '10) respond in The Fatally Flawed Theory of the Unbundled Executive with thoughtful arguments why Berry and Gersen are wrong, and, in any event, why their argument has nothing to do with unitary executive theory.
These are interesting, provocative, and fun (yes, fun)--a welcome diversion from the increasingly common fare on the unitary executive.
More on Sec'y of State Clinton and Emoluments
Does the Emoluments Clause bar Senator Clinton's appointment as Secretary of State? I previously posted on this here; it's since gotten more attention.
Jeffrey Toobin discussed the issue--and the standing reasons why it can't be litigated--on cnn. (Thanks to my student Michael Eisnach for the tip.) At Balkinization, Jack Balkin provided historical context and OLC links, and Larry Tribe looked at interpretation questions.
December 1, 2008
Senate Seat - MN
Keeping tabs on the still-pending Senate election in Minnesota?
Here is an excerpt from a UPI story that started a bit of controversy:
The Minnesota U.S. Senate contest between incumbent Republican Norm Coleman and Democratic challenger Al Franken is undergoing a recount, with the candidates separated by less than 300 votes out of 2.9 million cast. But a controversial decision by the state's Elections Canvassing Board could end up throwing the election into the lap of the Senate itself, a scholar told Minnesota Public Radio.
"Ultimately, the Senate has complete authority to determine who was elected," Washington University political scientist Steven Smith told the broadcaster, citing the canvassing board's decision this week to disallow disputed absentee ballots that Franken had urged be counted.
The board's move was "a cause for great concern," Reid said this week, and those comments may indicate his willingness to start a Senate investigation of the Minnesota recount, Smith said. And if so, it's possible that Franken's argument regarding rejected absentee ballots could be reconsidered by U.S. senators.
It's certainly true that the Senate can settle the issue by simply choosing to swear in one or the other, but I wouldn't necessarily agree at this point that the Senate is likely to intervene, or that Reid's comments should lead us to anticipate that. "Cause for great concern," without more, is about as boilerplate as it gets.
Whence cometh such authority? Article I, Sec. 5:
Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members
Ding. That's it.
That applies equally to determining who won elections and shall be seated, and to who is such a pain in the ass that they'll be expelled from the Senate once seated, though there's more about expulsions later, including the 2/3 vote requirement for kicking someone out.
So, has it ever happened? Sure. According to a 2005 paper (PDF) by Prof. Jeffrey A. Jenkins of Northwestern University, there have been 132 contested Senate elections through the 107th Congress, i.e., from 1789 through 2002, or an average of more than one per Congress. But since the 17th Amendment, the number of cases has declined fairly dramatically, with just 35 cases, or 0.8 per Congress on average. The last such dispute, not included, it appears, in the Jenkins paper, was current Senator Mary Landrieu's first election to the Senate in 1996.
Will it happen here? Dunno yet. But it's not as rare or arcane a procedure as you might think.
I don't think this is a fair exam question - - - well, maybe for a take-home exam.
November 30, 2008
The Sunday Reader: Pierce (on Calabresi and Yoo) on the Unitary Executive
Professor Richard Pierce, Jr. (Geo. Washington), recently posted Saving the Unitary Executive Theory From Those Who Would Distort and Abuse It: A Review of The Unitary Executive, by Steven G. Calabresi and Christopher Yoo on ssrn. The piece is forthcoming in the Penn Journal of Constitutional Law.
I came across Pierce's review soon after I finished Calabresi and Yoo's book. It seems odd to blog on a review--a kind of review of a review--but Pierce adds plenty to Calabresi and Yoo's work. And as a leading admin scholar, he complements the book well, adding a needed dose of political reality to the constitutional theory. His "review" is really more a response--and a good one. I highly recommend Pierce's review (and, oh yes, the book).
Pierce starts by acknowledging Calabresi and Yoo's important contributions to the literature on unitary executive theory. First, they "rescue" it from the Bush administration, which has used it "to support outlandish claims of presidential power that are unrelated to the unitary executive theory." Calabresi and Yoo reground the unitary executive in the President's power over the executive branch. Pierce: "the Vesting Clause of Article II confers on the President plenary power over policy making by all Executive Branch agencies and officials." Second, they trace the unitary executive theory across presidents from Washington to George W. Bush and argue that all forty-three presidents acted in accordance with it.
Here's where Pierce's piece becomes more an important response and complement to the book than merely a review of it.
Pierce sets out three disagreements with Calabresi and Yoo. First, he argues that the President does not have the power "to veto a decision made by an executive officer to whom Congress has delegated the decision." Instead, the President's "only recourse is to remove the officer." Pierce:
I believe instead that, when Congress has lawfully vested decision making power in an executive branch officer, e.g., the Secretary of Health and Human Services or the EPA Administrator, that executive branch officer is the only person who can make the decision.
Moreover, removal will rarely be necessary, because executive officers have good political reasons, entirely independent of the removal power, to act in accordance with the President's policy preferences. And removal will often be unduly costly:
The difference between the power to veto and the power to remove is not subtle. If a President could veto a decision of an executive branch officer, he undoubtedly would do so with some frequency and often at little political cost. By contrast, removing an officer is always costly. Frequently, the cost of removal is so high that a President reluctantly acquiesces in a decision with which he strongly disagrees in order to avoid incurring the high cost of removing the executive branch officer who made the decision.
Thus politics often obviates the need for removal; and in any event removal is limited by politics.
Second, Pierce argues that statutory "for cause" limits on the President's removal power do not infringe upon the unitary executive. In fact, they are "not important." Why? As mentioned above, officers have independent political reasons to act in accordance with the President's policy preferences, thus making removal largely unnecessary. Pierce:
[Even o]n the unusual occasion when an officer feels so strongly about a policy issue that the president is unable to persuade the officer to act in accordance with the president's policy preferences, I do not believe that the legal requirement that the president must state a cause for removing the officer has any effect at all on the president's ability to use the threat of removal as an added inducement to the officer to act in accordance with the president's policy preferences.
As for broad statutory limits on the removal of employees: They don't matter to the President's ability to control policy, because employees don't make policy.
Finally, Pierce argues that the only constitutional problem with independent agencies is the statutory limit on the President's appointment power, not the "for cause" limit on the removal power:
The statutes that establish "independent agencies" limit the president's appointment power by providing that no more than a bare majority of the Commissioners can be members of the same political party.
Read Pierce's review along with the book; it's a healthy complement and valuable critique.