December 20, 2008
Saturday Evening Review: Pardons
Taking a bit of a break from grading con law exams, I heard an interesting segment on the NPR program "On the Media" concerning presidential pardon powers. An MP3 file of the program is here (with any luck) and the website is here (the story "beg your pardon" allows access to MP3 file). Thus, this week's Saturday Evening Review is less a "read" than a "listen" - - - as befits eyes tired from reading exams.
But after a bit of rest, the program led me to an interesting website Pardon Power maintained by P.S. Ruckman, Jr., Associate Professor of Political Science at Rock Valley College in Illinois. Ruckman's blog mentions the "On the Media" story and has a bit to say about how he was quoted. It's also pretty comprehensive - looking at gubernatorial pardon power as well. But I must say I found the most interesting post on Ruckman's blog his "Presidential Pardon Watch List." No surprise that the list includes Scooter Libby, Bernard Kerkick, Ted Stevens, and Jeffrey Skilling, though I was more interested to see Martha Stewart and John Walker Lindh included.
One of the best pieces of legal scholarship I've seen on the pardon power is by Mark Strasser, a ConLawProf at Capital University Law School. In The Limits Of The Clemency Power On Pardons, Retributivists, and The United States Constitution, 41 Brandeis L.J. 85 (2002), Strasser observes that while there is often much criticism about particular pardons, there is little consensus about "which uses of the pardon power are proper or appropriate." Especially striking is Strasser's discussion of the possibility of a presidential "self-pardon":
One issue that has received some attention is whether a President would be able to issue a pardon to himself. While there clearly is something unsettling about such an idea, at least some of the analyses offered regarding the reasons there cannot be such a right are unpersuasive. For example, some commentators reject that the President can pardon himself because, allegedly, that would make him his own judge. Yet, the Executive when issuing a pardon need not be acting as a judge, and there is no requirement, for example, that the President only give pardons to the most deserving individuals. The President is permitted to issue a pardon to help his friends, even if doing so might appear unseemly, and it is not at all clear that the Constitution permits one to benefit one's friends but not oneself. In any event, it may be difficult to draw a line between benefiting one's friends and benefiting oneself, because the President might issue pardons to others in order to protect himself. Indeed, there is historical precedent for pardons being issued to individuals so that the Executive might avoid embarrassment.
Arguably, if the President issues a self-pardon, there is a sense in which he has been placed above the law. Yet, the same might be said were the President's successor to issue a pardon to the outgoing President. Certainly, there are some differences between a President issuing a self-pardon and a President waiting for the next in office to issue the pardon -in the latter but not the former case the President could not be sure that the pardon would be issued. Yet, that difference is not enough to counter the charge that the President has been placed in a “special” position. Further, the President is clearly in a special position even if unable to pardon himself, precisely because the President can issue pardons to those who work for him.
Even if the President could issue a self-pardon, a separate issue is whether a President would do so. Where the President does not issue a pardon to himself, he is subject to the laws which he is accused of having broken. Further, there are limits on the pardon power: (1) the President can only pardon a crime that has already occurred rather than a crime that is either in process or to be performed in the future; (2) the President cannot issue a pardon in cases of impeachment; and (3) the President does not have the power to issue a pardon for a violation of state law. Thus, there are a variety of reasons to think that even if the President has the power to issue a self-pardon, the “government of the United States [might still be] ... termed a government of laws, and not of men.”
Id. at 150-151 (footnotes omitted).
The prospect of Bush pardoning himself seems remote, despite several stories I've seen in the "alternative" portions of the blogosphere. However, who Bush does pardon will be interesting to "watch" in the coming days.
December 18, 2008
NYT Calls for Prosecutor in Detainee Abuse by Bush Administration
The NYT added its name on Thursday to the list of individuals and organizations calling for criminal prosecution of high-ranking Bush administration officials for abuse of detainees. The lengthy editorial comes in the wake of the release of portions of the bi-partisan Senate Armed Services report on torture. I posted on this last week, and included a link to the released portions of the report, here.
A prosecutor should be appointed to consider criminal charges against top officials at the Pentagon and others involved in planning the abuse.
Recognizing that the Obama administration is unlikely to pursue this course, the Times calls for an independent panel to investigate detainee abuse and other illegalities--TSP, e.g.--by the Bush administration.
U.S. to Release Three to Bosnia
Judge Richard J. Leon of the U.S. District Court for the District of Columbia last month ordered the release of five Algerians (with Bosnian citizenship), finding insufficient evidence that they were "enemy combatants"; I posted here. Now the NYT reported this week that the Bush administration is preparing to release three of them to Bosnia.
Why not release all five? According to the Times, one of them--Boumediene himself, the detainee who gave his name to last term's famous decision ruling that the constitutional privilege of habeas corpus extends to Guantanamo detainees--lost his Bosnian citizenship while in detention over questions about how he obtained it. The fifth may be caught up in more administration monkey-business; we've already seen plenty in the case; the NYT:
The case against the six men [only five of whom Judge Leon ordered released] offered the latest example of the administration's pattern of changing strategy in its legal defense of the detention camp. On the eve of the hearing before Judge Leon, the Justice Department said it was abandoning its claims about the embassy bombing plot. Instead, it claimed in court that the men had been planning to go to Afghanistan to fight Americans.
United States Senate - updates
It's almost Winter Solstice and the 2009 Senate is still unsettled - - - with three seats as yet undetermined.
[There are four, see update on Colorado here]
First, there is the still-no-definite-result in the election in Minnesota between incumbent Republican, Norm Coleman, and Al Franken, the Democratic challenger. As the New York Times reports here, the contest remains too close to call, with the state Canvassing Board (Secretary of State and four judges) still interpreting squiggles and scribbles - - - an image of a problematical ballot provides a good illustration. The Minnesota Supreme Court has meanwhile been considering the issue of whether 1600 absentee ballots have been counted twice; the Minneapolis Star-Tribune here, with the Canvassing Board conducting a hearing on the same issue today, story here. Favorite quote from the story by Mike Kaszuba for the Star-Tribune:
The hearing in a packed room began with Justice Paul Anderson testily responding to Roger Magnuson, the lead attorney for Coleman, who compared Minnesota's recount to the 2000 presidential election dispute that focused on the counting of ballots in Florida. "This is not Florida," said Anderson.
Second, there is the uncertainty surrounding a Senate seat for Illinois once occupied by President-Elect Obama. Ordinarily, the state governor would appoint someone to fill the vacancy, but Governor Blagojevich has been indicted based in part of allegations about that very Senate seat being "for sale." The Illinois Supreme Court rejected the petition filed by the state attorney general "without comment" - - - story by Rick Pearson with pdf copies of orders on the Chicago-Tribune blog here. Hearings on impeachment before the state legislature and a vigorous defense make for dramatic reading, among the many stories is this morning's in the Chicago tribune here.
Last, and certainly not least, is the New York Senate seat occupied by Hillary Clinton, who would vacate it if she is confirmed as Secretary of State. David Paterson, New York's Governor (who assumed the position after the former-governor succumbed to scandal), has the power to appoint someone to fill the vacancy. The newest contender seems to be Caroline Kennedy. Kennedy's seeking the seat has prompted many letters, blog entries, and op-eds, but this brief bit from a New York Times story captures the controversy:
With no prior experience in elected office, Ms. Kennedy is setting out to demonstrate that she is ready to handle the rigors of New York politics. Yet her allies fear that to appear to campaign openly would appear presumptuous and provoke Mr. Paterson, who had already signaled his worry, before Ms. Kennedy made her interest clear on Monday, that the jockeying over who would succeed Mrs. Clinton had become undignified.
Marshall and Beermann: Give Obama Access to OLC Memos
Professor William Marshall (UNC) and Professor Jack Beerman (BU) published an editorial earlier this week in the News & Observer (North Carolina) criticizing AG Michael Mukasey's refusal to turn over certain OLC memorandums to the Obama team.
According to Marshall and Beerman, Mukasey refused to turn over the memos because transition team members are not part of the government and because other agencies have an interest in some OLC memos.
As Marshall and Beerman point out, these are clearly bogus reasons. The former reason is simply wrong: "being an existing member of the government is not a precondition for review of classified materials." And the latter reason undermines the new administration's ability to transition all agencies. Marshall and Beerman:
The fact that another agency may have some interest in the matter does not mean the relevant documents should be shielded from a new administration--which needs to know the contents of the memoranda, regardless of outside agency inerests. And Mukasey's answer seems to forget that the transition applies to all agencies. Even if the Defense Department, for example, has some interest in an OLC memorandum, so does the new administration for whom the document may be critical for assuring preparedness at both OLC and Defense.
(I'd add that this justification is plainly inconsistent with the Bush administration's own incessant reliance on the unitary executive theory by arguing that agency interests are severable with respect to the incoming administration.)
The authors argue that the present administration's refusal to share the OLC memorandums violates the President's oath and the Take Care Clause. Read the full editorial here.
December 17, 2008
Tamm: Hero or Criminal?
Michael Isikoff asks this question in his Newsweek article this week on Thomas Tamm, the former Justice Department attorney who blew the whistle on--or, depending on who you talk to, leaked--the NSA's warrantless surveillance program and its violation of the FISA. Tamm told the NYT about the program, leading to the famous December 16, 2005, article that blew the lid off it.
Isikoff reminds us of the widespread criticism of the program in the wake of the NTY article:
The story--which the Times said relied on "nearly a dozen current and former officials"--had immediate repercussions. Democrats, including the then Sen. Barack Obama, denounced the Bush administration for violating the FISA law and demanded hearings. James Robertson, one of the judges on the FISA court, resigned.
And what was the administration's first reaction to this criticism? Revise or retract the program? Get Congressional approval? Discipline those responsible? (Well clearly not this, as the President himself was responsible.) None of the above. Instead:
on Dec. 30, the Justice Department announced that it was launching a criminal investigation to determine who had leaked to the Times.
Now there's nothing new about an administration investigating and charging those who blow the whistle on illegal activities (rather than investigate or reevaluate the illegal activities themselves). You may remember another whistleblower whose case was eerily similar to Tamm's (and on which Isikoff also reported): Jesselyn Radack was fired, blacklisted, and investigated for revealing that as a legal adviser in DOJ's Professional Responsibility Advisory Office she advised the DOJ Terrorism and Violent Crime Section that it was not proper for the FBI to interview John Walker Lindh without his attorney. (Radack's e-mail advice mysteriously disappeared after the FBI interviewed Lindh against her advice; it subsequently turned up in Newsweek, leading to the reprisals.)
The Obama administration will have to deal with the Tamm case--along with the other hold-over issues from the Bush administration. A key consideration for the Obama team: Whether the whistleblowers (ironically) will be the only individuals held to account in the Bush administration's various sketchy and illegal programs in the war on terror.
It's looking increasingly likely that nobody else will be held to account. Between statutory immunities and politics, criminal charges against Bush administration officials are all but ruled out. And the Supreme Court last week seemed to move in the direction of closing the window for civil liability in the oral arguments in Ashcroft v. Iqbal. That case involves the pleading standard for civil Bivens actions against high-ranking administration officials acting in the wake of 9/11 for condoning subordinates' illegal behavior (in that case, racial and religious discrimination). Justices' comments and questions at oral argument suggest that several (even most) would endorse a heightened pleading standard against high-level officials, or against officials acting in the wake of 9/11, or both. A heightened pleading standard could, in effect, cut off such civil actions, as plaintiffs' complaints would be dismissed before plaintiffs could gather evidence to meet the standard (assuming they ever could gather such evidence).
With criminal and civil responsibility for high-level officials close to off the table, we'll see what the Obama team does with whistleblowers. (Brian Tamanaha at Balkinization makes a good case for treating them as heroes.)
We'll keep an eye on developments on both the whistleblower and high-level-official sides.
December 16, 2008
More--Much More--on Privilages or Immunities
I posted last week on Gans and Kendall's (The Constitutional Accountability Project) excellent report The Gem of the Constitution: The Text and History of the Privileges or Immunities Clause of the Fourteenth Amendment. Since then they've been guest-blogging at Balkinization, posting a series of must-read conversation starters on the P or I Clause.
Their first post sets out their general thesis that the Court in the Slaughterhouse Cases got the text and history of the P or I Clause wrong, leaving a void in constitutional protections of fundamental rights that the Court later filled with Substantive Due Process. But this solution is both doctrinally weak (at best) and politically divisive. Gans and Kendall's solution: "Restore the text of the Privileges or Immunities to its rightful place" and allow the Clause to do the substantive work that by its plain text and history it was intended to do.
The second post argues that the P or I Clause, not the Due Process Clause, should be the vehicle for Second Amendment incorporation to the states, post Heller. This argument should appeal to (true) originalists, but it puts conservatives (who are also committed originalists) in a bind:
The dilemma for conservatives is that an originalist ruling that overrules Slaughterhouse and restores the Privileges or Immunities Clause to its intended constitutional role will simultaneously undergird the Court’s existing fundamental rights jurisprudence, which has produced rulings such as Roe v. Wade. While conservatives will certainly continue to attack these rulings as illegitimate, it’s far easier to say that the entire enterprise is out of bounds (as conservatives have said for years about substantive due process).
The most recent post argues that fundamental rights under Substantive Due Process--even those in Roe v. Wade and Lawrence v. Texas--are (actually and better) rooted in the P or I Clause. And there's a political advantage for progressives in so rooting them:
There is an important lesson here. For too long, progressives have ceded the Constitution’s text and history to conservatives, staking their claim more on the Supreme Court’s interpretation of the Constitution than the document itself. . . . For many, this leaves the impression that progressives don’t care about the Constitution’s text and history.
That is why it is so important for progressives to engage in the coming debates about the Privileges or Immunities Clause, and its role in protecting substantive fundamental rights. Progressives may not like the individual, Second Amendment right recognized in Heller, but they cannot afford to sit out the upcoming fight over the incorporation of the Second Amendment. Instead, progressives should treat these incorporation cases as a tremendous opportunity. For years, debates over the Fourteenth Amendment’s protections have run aground, a casualty of persistent attacks that the Court had no basis to use the Due Process Clause to protect fundamental rights. Now is the chance to change the American constitutional conversation about fundamental human and civil rights.
I worry that these last two posts overstate the political point. The second post--arguing that the P or I Clause puts politically conservative originalists in a bind--assumes that opponents of Substantive Due Process fundamental rights would be torn between their categorical opposition to rights not specifically enumerated and their commitment to originalism. This is unlikely: The latter would surely yield to the former. And even if it wouldn't, we can easily imagine an "originalist" interpretation of the P or I Clause that would not include the right to an abortion or the right to sexual privacy (contrary to Gans and Kendall's argument in the third post): First, an originalist would certainly claim that the more general right to bodily integrity (even if in the P or I Clause) does not include the more specific right to an abortion (drawing on the method of Washington v. Glucksberg); and second, notwithstanding Gans and Kendall's good evidence to the contrary, an originalist interpretation of the P or I Clause may very well not include the right to bodily intergrity. (As we've seen in Heller itself, nobody has a monopoly on originalist interpretation.)
But even if the political point is overstated, its more modest version--that progressives might find some political advantage in couching rights in P or I terms--is nevertheless important. And the posts in general are excellent and thoughtful--good complements to the report. I highly recommend these.
December 15, 2008
Court Rules on Cigarette Labeling Preemption
A sharply divided (5-4) Supreme Court ruled today in Altria Group, Inc. v. Good that plaintiffs' lawsuit against a cigarette manufacturer under a state fraud claim was not preempted by the Federal Cigarette Labeling and Advertising Act. I previously posted on the case here.
Plaintiffs brought their state claim against the cigarette manufacturer for fraudulently advertising that their "light" cigarettes delivered less tar and nicotine than regular brands. Defendants moved for summary judgment and won: the district court ruled that the federal Labeling Act preempted plaintiffs' fraud claim under the Maine Unfair Trade Practices Act. The First Circuit reversed, and the Supreme Court today upheld. The Court's ruling resolves the "apparent conflict" in the circuits as to whether state fraud claims were actually "warning neutralization" claims and thus expressly preempted by the Labeling Act under Cipollone v. Liggett Group, Inc. (1992). The First Circuit's opinion in this case and the Fifth Circuit's 2007 opinion in Brown v. Brown & Williamson Tobacco Corp. represent the two sides of the circuit split.
The Labeling Act's preemption provision, sec. 5(b), reads as follows:
No requirement or prohibition based on smoking and health shall be imposed under State law with respect to the advertising or promotion of any cigarettes the packages of which are labeled in conformity with the provisions of this chapter.
In determining whether a state claim is preempted under 5(b), the Cipollone plurality looked to
whether the legal duty that is the predicate of the common-law damages action constitutes a "requirement or prohibition based on smoking and health . . . with respect to . . . advertising or pormotion," giving that clause a fair but narrow reading.
Here, the MUTPA is not a "requirement or prohibition based on smoking or health"; instead it simply creates a duty not to deceive. This is true, even though any injuries included the harm to the plaintiffs' health from smoking "light" cigarettes. The Court:
It is true, as petitioners argue, that the appeal of their advertising is based on the relationship between smoking and health. And although respondents have expressly repudiated any claim for damages for personal injuries, their actual injuries likely encompass harms to health as well as the monetary injuries they allege. These arguments are unavailing, however, because the text of [the preemption provision] does not refer to harms related to smoking and health. Rather, it pre-empts only requirements and prohibitions--i.e., rules--that are based on smoking and health. The MUTPA says nothing about either "smoking" or "health."
Thus under the plain language of the Labeling Act's preemption provision and the MUTPA, and under the Cipollone (plurality) test, plaintiffs' fraud claims were not expressly preempted. (The Court declined the petitioners' invitation to reconsider the Cipollone test.)
Moreover, wrote the Court, the plaintiffs' claims were not impliedly preempted:
[The history of Federal Trade Commission labeling policies] shows that, contrary to petitioners' suggestion, the FTC has no longstanding policy authorizing collateral representations based on Cambridge Filter Method test results. Rather, the FTC has endeavored to inform consumers of the comparative tar and nicotine content of different cigarette brands and has in some instances prevented misleading representations of Cambridge Filter Method test results. The FTC's failure to require petitioners to correct their allegedly misleading use of "light" descriptors is not evidence to the contrary; agency nonenforcement of a federal statute is not the same as a policy of approval.
More telling are the FTC's recent statements regarding the use of "light" and "low tar" descriptors. . . . "It d[id] not apply to other conduct or express or implied representations, even if they concern[ed] tar and nicotine yields."
Justice Thomas's dissent (joined by Chief Justice Roberts and Justices Scalia and Alito) focused on the unworkability of the Cipollone test. Justice Thomas recommended Justice Scalia's test (from his Cipollone opinion) as a workable alternative for the lower courts:
The majority today ignores these problems and adopts the methodology of the Cipollone plurality as governing law. As a consequence, the majority concludes that state-law liability for deceiving purchasers about the health effects of smoking light cigarettes is not a "requirement or prohibition based on smoking and health" under the Labeling Act. The Court's fidelity to Cipollone is unwise and unnecessary. The Court should instead provide the lower courts with a clear test that advances Congress' stated goals by interpreting sec. 5(b) to expressly pre-empt any claim that "imposes an obligation . . . because of the effect of smoking upon health."
The Court's ruling today simply means that the plaintiffs' lawsuit can go forward; it says nothing on the merits of their MUTPA claims.
An alternative occupation - Just in case you want to escape the BlueBlooks . . .
I will venture that most of us love teaching. However, if you are looking for another way to use your legal acumen, you might consider applying for a federal judgeship in the next four years or so. Findlaw's Professor Carl Tobias (of Richmond Law) has an article outlining the many reasons why academics make exellent appellate jurists and explicitly encouraging the president-elect to reach out to academia to fill the many federal vacancies.
December 14, 2008
The Sunday Reader: Rees on the History of the Maryland Constitution
In the spirit of the recent (and important) theme on the blog of state constitutions (see here and here), my review today highlights a recently posted piece on just that topic: Charles Rees (U. Balt.), Remarkable Evolution: The Early Constitutional History of Maryland, U. Balt. L. Rev. (2007).
Rees traces the history and evolution of the Maryland Constitution from 1632 to 1851 and shows their relationship to the development of the U.S. Constitution. In doing so he reminds us why state constitutions--so often overlooked in our conventional con law courses--are important in understanding the evolution of the federal Constitution. Here's a flavor:
In the colonial era, the 1632 Charter of Maryland provided a kind of constitution and a representative assembly for the Province of Maryland, one of the first in the colonies. An "Act ordeining certain Laws for the Government of this Province," enacted in 1639, was a temporary legislative bill of rights and perhaps "the first American Bill of Rights." An "Act Concerning Religion," also known as the Toleration Act of 1649, recognized a measure of freedom of conscience and was probably the first document protecting the free exercise of religion.
In revolutionary times, an Association of the Freemen of Maryland (1775) helped establish a republican form of government and placed Maryland in a union of American colonies. A Declaration, dated July 6, 1776, proclaimed Maryland an independent state, based on the sovereignty of the people. Maryland's first constitution of the people, also in 1776, had separated powers and a Declaration of Rights.
In the early statehood period, the case of Whittington v. Polk, like Marbury v. Madison in the United States Supreme Court, established judicial review . . . . Amendments to the constitution in 1802, 1810, and afterward extended the franchise beyond those initially entitled to vote . . . . Reform amendments to the constitution (1837-1838) provided direct popular elections of certain state officials and reapportionment of the House of Delegates, the lower house of the Maryland General Assembly. The Constitution of 1851 provided for popular participation in constitutional change by regularly taking "the sense of the people" as to calling a constitutional convention.
As the Maryland Constitution was between 1632 and 1851, many state constitutions today are on the cutting edge, e.g., the Civil Gideon issue on which I've recently posted. But they are generally under-appreciated in law schools. In addition to an interesting history of the Maryland Constitution, Rees's article is a good argument for reexamining the place of state constitutions in our law school curricula.