March 21, 2009
Detainees Push Back on Administration Detention Authority
Lawyers for a group of detainees yesterday filed a Replyto the administration's definition of detainable individuals under the Authorization for Use of Military Force and international law. Many thanks to Lyle Denniston at SCOTUSblog for the tip and for posting the Reply.
The administration filed its Memo last Friday, March 13, "refining" its position on detainable individuals. (My original post is here.) In that Memo, the administration claimed authority to detain individuals under the AUMF and international law--and notably not under inherent Article II authority--but defined detainable individuals in almost precisely the same terms as the Bush administration used to define "enemy combatant":
The President has authority to detain persons that the President determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, and persons who harbored those responsible for those attacks. The President also has the authority to detain persons who were part of, or substantially supported, Taliban or al-Qaida forces or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act, or has directly supported hostilities, in aid of such enemy armed forces.
The administration claimed authority to detain individuals who meet this definition based on the AUMF and international law, but the latter adjusted somewhat for the "novel type of armed conflict against armed groups such as al-Qaida and the Taliban." The administration meant, of course, that al-Qaida and the Taliban are not states, and that the effort against them is not a conventional war. The administration argued that "[p]rinciples derived from law-of-war rules governing international armed conflicts, therefore, must inform the interpretation of the detention authority Congress has authorized for the current armed conflict" and that "[t]he President also has the authority under the AUMF to detain in this armed conflict those persons whose relationship to al-Qaida or the Taliban would, in appropriately analogous circumstances in a traditional international armed conflict, render them detainable."
This adjustment--relying upon the "principles derived from law-of-war rules"--is at the heart of petitioners' objections. Petitioners argue that the administration's definition exceeds its authority under the AUMF and international law, because it permits detention where international law would not. (Petitioners argue that the AUMF says nothing about detention, but that the Hamdi plurality ruled that detention under the laws of war was implicit in the AUMF. Moreover, Hamdi and Hamdanboth gave narrow interpretations to the AUMF, holding the executive to existing law of war.) Thus petitioners argue that the law of war allows detention only for members of state armed forces (based merely on their status--their membership in a state armed force) and non-member "unlawful combatants" (based on their conduct--their active and direct participation in hostilities). But the administration's definition allows the President to detain unlawful combatants merely because of their status, not because of their conduct. This mix-and-match of detention rules under the law of war amounts to a rewrite of the law of war and is outside the President's authority under the AUMF.
The court's decision will turn on just how much leeway it's willing to give the President under the AUMF and international law and whether the President's proposed definition--based on "principles derived from law-of-war rules"--is close enough to detention rules under international law. We'll keep you posted.
Bill of Attainder - Saturday Evening Review
Article I section 9 of the Constitution (not the First Amendment as some seem to believe) provides: “No bill of Attainder or ex post facto Law shall be passed.”
Given all the discussion of bills of attainder recently in connection with Congressional attempts to tax AIG bonuses, this Saturday evening I turned to Mark Strasser's article, Ex Post Facto Laws, Bills Of Attainder, And The Definition Of Punishment: On DOMA, The Hawai'i Amendment, And Federal Constitutional Constraints, 48 Syracuse L. Rev. 227 (1998).
Strasser helpfully discusses the historical context. In Great Britain, “Parliament would pass statutes in which one or more specific individuals were sentenced to death for allegedly having plotted against the government.” Bills of Pains and Penalties included lesser punishments such “imprisonment, banishment, and the punitive confiscation of property by the sovereign.” Colonial governments passed both types of bills, also adding a third type: “a legislative enactment barring designated individuals or groups from participation in specified employments or vocations,” often imposed “against those legislatively branded as disloyal.” Strasser convincingly argues that judicial interpretations of the bill of attainder clause prohibit all three types of legislation.
He then mounts an argument that DOMA – the Defense of Marriage Act – is unconstitutional as a bill of attainder. He contends that if bills of attainder can be defined as specifically identifying “persons or groups who will be deprived of a right as a kind of punishment,” then DOMA’s denial of tax and other benefits to same-sex couples is a kind of punishment based on disapproval for the actions of same-sex couples, i.e., their homosexuality.
Strasser’s decade-old argument regarding DOMA does put the AIG taxing scheme in a new light, although not necessarily an unconstitutional light. DOMA, of course, has handily survived constitutional attacks.
The Teaching Assistant
Hello! As always, we will cover a number of stories. This week's installment will take us through a varied collection of stories.
The NAACP has filed a suit against a number of mortgage lenders alleging that they deliberated targeted African Americans for subprime mortgages. In a related story, NPR aired a story (audio only) about how the recession is having a particularly negative effect on racial minorities.
On LGBT issues, President Obama reversed an edict of of the prior administration by endorsing the United Nations' declaration calling for the decriminalization of homosexuality.
The Illinois State Legislature has voted a bill out of committee that wil prohibit any state actor froml, inter alia, "deny[ing] or interfer[ing] with a pregnant woman's right to terminate a pregnancy: (i) prior to the viability of the fetus or (ii) when the termination of pregnancy is necessary to protect the life or health of the pregnant woman." The law further requires that all Illinois public schools " shall offer medically accurate, age appropriate, comprehensive sexual health education."
The ACLU has a sobering report about the reproductive rights of women held in ICE custody. The problem is that female detainees are not made aware of their rights, and therefore do not request reproductive health services. According to the report, "
March 20, 2009
Using the Obama Victory as an Excuse for Ending the VRA
My co-blogger Steven recently posted about a challenge to the VRA. One particular portion of the brief has made the headlines recently. In defense of their request to nullify the provisions of the Voting Rights Act, the defendants have made the following assertion: "
Nothing evidences that support more clearly than comparing the votes President Barack Obama received in Georgia with the votes received by the last two Democratic Presidential nominees, Senator John Kerry and former Vice President Al Gore. In the 2008 election, President Obama received 1,844,137 votes of the 3.9 million Presidential votes cast in Georgia. Those raw numbers mean that President Obama received 47% of the votes cast in a majority Republican state with only 29% black population.
In Georgia, President Obama received a percentage vote 3.8 points higher than former Vice President Gore in 2000, and 5.6 points higher than Senator Kerry in 2004. Congress’ insistence that Georgia has “a continuing legacy of racism” in the context of the renewal of the VRA is nonsensical when an African- American candidate for President receives a greater percentage of the vote than his white predecessor candidates.
The Obama campaign and subsequent victory was indeed a victory for all Americans and a great step in the direction of equality. However, it is folly to use this moment in history to argue that racism no longer exists in America, and that the need to protect the voting rights of African Americans, Latinos, and others from race-based interference with the right to vote has somehow disappeared.
Before getting into the numbers, a bit of a history lesson is appropriate. African American men were allowed the right to vote in 1870, but this right was taken away by the post-Reconstuction legislation and intimidation. In the South, African Americans were subsequently prevented from exercising the francise until the passage of the 1965 Voting Rights Act, and even then, compliance was not immediate. So, the numbers tell us that - depending on jurisdiction - African Americans in the South have only been voting consistenly for the past 40 years. That is not a great deal of time in historical context.
Some may argue that in that 40 years, American has profoundly changed. This is also undoubtedly true. However, three things are worth noting. First, while America has profoundly changed, old practices are difficult to change and many remain fairly intact. Critics should keep in mind that the VRA was most recently reauthorized in 2006. (Click here for an excellent rundown by the NAACP LDF of what data Congress used at that time to justify its action.) Suffice to say, they were looking at recent data, rather than data that were ages old. It is not too far of a stretch to reason that many of the same things that were true in 2006 remain true three short years later.
Second, even if one could opine that the 2008 election changed even that which was known in 2006, there is an issue with reading too much into the sucess of one person. Barack Obama has an amazing story, but here is only one person. Some events prove that the rules have been changed forever; other events prove to be exceptions that verify the continued validity of he rule. At this point, it is far too early too tell which of these categories Barack Obama will be assigned by history. But at this point, the fact that two African Americans have never simultaneously served in the United States Senate since Reconstruction is powerful evidence of how far we still have to travel on this issue.
Finally, the states are failing to look at this from the other side of the coin. What if one argues that Obama's election could inspire a renewed hostility to the voting power of minority groups? This also has yet to be seen, but it is just as logicially plausible as the defendant's scenario. As America's demographics change, it is possible that the browning of the country coupled with the electoral success of some persons of color could produce exactly the opposite of what the defendants assert that it does.
So, the states may be correct that the day will come when pre-clearance is no longer necessary. However, in my opinion that day is not today and is probably not tomorrow either. Rather, in Justice O'Connor's suggestion in the University of Michigan cases, we may need at least another 25 years to see what this all means. So, the defendants should be careful not to put the cart before the historical horse.
John Yoo on same-sex marriage
John Yoo, best known as the author of the Bush Administration’s so-called “torture memos,” see here, also has something to say about same-sex marriage. In a brief essay, Can The Government Prohibit Gay Marriage?, 50 South Texas Law Rev. 15 (2008), co-authored with Jesse Choper, the two scholars pose the following questions and answers:
An Individual Right to Gay Marriage? Probably Not
Should States Prohibit Gay Marriage? No
If you are looking for trenchant theorizing or novel ideas in this area of vigorous scholarship, this is not a satisfying article. However, it is interesting, as our colleague, David S. Cohen, over at Feminist Law Professor notes. The article was part of a Symposium, Gay Marriage in the Conservative Movement, but it argues against states prohibiting same-sex marriage as a policy matter based on the classic liberal harm principle:
Id. at 35.
Equal Protection Viewpoint on AIG Bonuses
Over at the Faculty Lounge (where I am frequently a guest, full disclosure), Con Law Prof (and Con Law casebook author) Calvin Massey has a brief post about a potential problem lurking in the AIG issue - and one tha I don't believe I've seen explored as yet. While various other Con Law angles have been evaluated, equal protection seems to have been a blind spot. Prof. Massey analogizes the AIG tax legislation to USDA v. Moreno and Romer v. Evans, stating:
Professor Massey's point is well taken and should be duly noted by all that are following these developments.
ConLaw Prof named new Dean at William & Mary
Douglas' areas of constitutional specialties include race, religions, and elections. Perhaps his best known work is the legal-historical account, Jim Crow Moves North: The Battle over Northern School Segregation, 1865-1954 (Cambridge University Press 2005).
The Changing Face of Habeas for Guatnanamo Detainees?
A group of Guantanamo detainees yesterday filed a Supplemental Memorandum arguing that the Geneva Conventions guarantee them certain conditions of confinement and that the federal courts have jurisdiction under the habeas statute to enforce them. Many thanks to Lyle Denniston at SCOTUSblog for first reporting the filing and for the link to the Memo.
The Memo comes in response to a court order dircting the detainees to address whether the Geneva Conventions (or anything else) guarantee the petitioners certain conditions of confinement, and whether the detainees can enforce any guarantees in federal court via habeas corpus.
The Memo focuses almost exclusively on whether the Geneva Conventions are enforceable on habeas--an issue I won't discuss here--and merely cursorily on what we might imagine to be the threshold question: Do these detainees enjoy the privilege of habeas at all?
Petitioners argue that Boumediene answers the question: Yes.
There have been developments since June 2. In particular, the Supreme Court decision in Boumediene v. Bush, 128 S. Ct. 229 (2008) removes any doubts about this court's jurisdiciton of the subject matter of this action under 28 U.S.C. Sec. 2241 [the habeas statute]. That case held that the legislation repealing the statutory habeas remedy of 28 U.S.C. Sec. 2241 et seq.as to prisoners at Guantanamo was constitutionally void and thus ineffective to eliminate this statutory habeas remedy.
The answer may be more complicated.
As I've noted in previous posts, under a narrow reading of BoumedieneGuantanamo detainees enjoy the privilege of habeas only to challenge their confinement itself, not the conditions of their confinement. The difference is set out between Sections 2241(e)(1) (upon which the Court ruled in Boumediene) and Section 2241(e)(2) (which the Court did not squarely address):
(e)(1) No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.
(e)(2) Except as provided [in the appeal procedure provided for in the Detainee Treatment Act of 2005], no court, justice, or judge shall have jurisdiction to hear or consider any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was detained by the United States and has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.
According to this view, Boumediene ruled on Section 2241(e)(1), not Section 2241(e)(2).
There are now at least three opinions from the D.C. District that adopt this narrow reading and refuse to extend Boumedieneto cover Section 2241(e)(2). As a result, the D.C. District has held that Section 2241(e)(2) prohibits a habeas petition relating to the detainee's conditions of confinement. To the extent that these petitioners' claims relate to the conditions of confinement (and not confinement itself), they may run up against these recent D.C. District holdings.
And it may be yet more complicated than this. The administration just last week redefined detainable individuals, leaving out the phrase "enemy combatant." (The administration wrote that this narrow class of individuals falls outside the definition of "prisoner of war," but that individuals within this class are nevertheless detainable under the laws of war.) Sections 2241(e)(1) and (e)(2) specifically use the phrase "enemy combatant." Do these sections no longer apply--by their plain terms--to detainees at Guantanamo? Perhaps, if the present administration is not detaining them as "enemy combatants." (This might seem like blind formalism; or it may be the administration's attempt to render Sections 2241(e)(1) and (e)(2) nugatory and obsolete.)
And what of the administration's review of Guantanamo and its detention policies in the war on terror? The administration signalled last week that it will respect the AUMF and international law as limits upon its detention ability. Will it also accept those sources as limits upon its treatment of detainees?
We don't yet know the answers to these questions yet, but we'll soon find out: The administration's response is due on March 26. We'll keep you posted.
Kagan Confirmed as SG; Johnsen Moves to Full Senate for OLC
The Senate confirmed Harvard Law School Dean Elena Kagan as solicitor general by a 61-31 vote yesterday. Kagan will be the nation's first female solicitor general.
The Senate Judiciary Committee voted yesterday 11-7 on the nomination of Dawn Johnsen, Indiana U. Law prof., to head the Office of Legal Counsel. Johnsen would be the first female head of the OLC. She's likely to face stiff resistance on the Senate floor, however, in part because of her work for NARAL.
March 19, 2009
Wanted: Lawyer for Judicial Position. Must be learned in the law. Must look great in black. Must possess the quality of empathy.
The title of this post could be a "help wanted ad" for the Obama administration as it seeks judicial nominees. This story created a flap during the campaign, but has resurfaced with the administration's first judicial appointment and the administration's reiteration of this position in a press conference yesterday. As a refresher for those who've forgotten the phrase, here is the statement that seemed to start it all:
Statements such as this were criticized roundly by some on the right, such are this Wall Street Journal article which argued:
To responses such as this I say, "enough already." The response to this view is disingenuous to say the least for at least three reasons.
First, the belief that one cannot simultaneously uphold the law and be empathetic is a false dichotomy of the highest order. If the Senator - now President - had said, "You know, I don't think that judges should have to follow the rules in certain cases - they should do what their hearts dictate," that would be another case altogether. However, he did not. He simply said that any judge that he appoints will need to be an empathetic individual. Nothing prevents a judge from saying, "You know, the merits of your legal case are not that strong, but I understand your situation." A lot of concurring opinions are written for this very reason. The additional analysis is simply to say to the litigant, "The law made me rule this way, but that doesn't mean I don't understand the pain this law causes." The point is that even if a judge feels that the law is wrong, they are not going to defy the law outright to assauge their personal beliefs. To suggest otherwise is an outright insult to the judiciary.
Second, the criticism is likely leveled because some think that empathy is a code word for that most horrible of all legal evils, "judicial activism." My response - similar to that of the former Vice President - is "so?" Sometimes, the law needs a little prodding. In my research, I have observed - and this is by no means earth-shattering - that the legal literature is always slightly behind the technical, social, and legal advances. This is not a bad thing. Our discipline by its very nature is the status quo, and should not be changed on a whim just because it's Wednesday. However, this view neglects the reality that sometimes the tortoise that is our legal systems needs a little prodding to catch up to society's hare, or vice versa. Sometimes, judges are the best agent to do that. No, they are not (usually) elected, but sometimes the legislature lacks the intestinal fortitude to do what is just because the fear of backlash is too great. I think this is the very system the Founders envisioned. And even if they did not, it is wonderful to live in a society where the courts and the legislature have a role to play.
Finally, I think the real issue here is the fear that "empathy" is a code word not for activism, but for a concern that people with "empathy" will be more willing to look at the law in a different manner - one that departs from rigid formulaic application of the four corners of the text. Of the three, this view is actually close to valid. As we all know, the law is not rigid, but flexible and moving. There are a number of ways to interpret almost any provision of the Constituion. But rather than fear those who prefer to see shades of gray where others tend to see black and white, we as lawyers should embrace this and celebrate this as we encourage our students to in our courses. Yes, textualism and originalism are fine and have their place at the table, but there should be more to the judicial (and legal) thought process than merely reciting rules in a robotic fashion. As Justice Holmes said, "The life of the law has not been logic, it has been experiece." No human being can experience all there is to experience in life - nor would we want to. But empathy allows a person to appreciate and respect the experiences of others and bring that much-needed quality to the table.
I'm thinking Justice Holmes would side with the President on this one.
Slavery, Abolition, and Human Rights: A Symposium on the Thirteenth Amendment
The University of Chicago Law School and the Loyola University (Chicago) School of Law will host a symposium on April 17 and 18 at the University of Chicago Law School auditorium titled Slavery, Abolition, and Human Rights: Interdisciplinary Perspectives on the Thirteenth Amendment.
The conference explores the past and present significance of the Thirteenth Amendment, which abolished slavery andprovided constitutional authority for eradicating its badges and incidents and, ultimately, to pass wide ranging civil rights laws. The amendment has offered powerful protections for individual rights and equal treatment against wrongs ranging from peonage and housing discrimination to school segregation and trafficking in persons. Yet the amendment's enduring emancipatory significance has been little studied. The conference looks anew at the foundations and reach of the Thirteenth Amendment, bringing together scholars in the fields of history, law, philosophy, political science, and literature for robust inquiry into its antislavery career.
Papers from the conference will be published in The Promises of Liberty: Thirteenth Amendment Abolitionism and its Contemporary Vitality (Alex Tsesis, ed., Columbia U. Press 2010).
Check this out; it promises to be an interesting and important event.
"Scene in the House on the Passage of the Proposition to Amend the Constitution, January 31, 1865," Harper's Weekly, February 18, 1865.
AIG Bonuses & Constitutional Remedies
What are the constitutional ramifications of Congressional action seeking recoup of the bonuses paid to AIG executives?
Over at TaxProf Blog, Paul Caron has a great post with supporting materials for Larry Tribe's
opinion that "the proposed 90% tax on the bonuses paid out by AIG would pass constitutional muster under the Bills of Attainder and Ex Post Facto clauses Article I, Section 9; the Contract Clause of the Article I, Section 10; the Due Process Clause of the Fifth Amendment; and the Takings Clause of the Fifth Amendment."
Over at Balkanization, Sandy Levinson argues in his post that Congress could abrogate the contracts: "the Contract Clause prohibiting the "impairment" of contracts applies, textually, only to state governments, not to the national government."
One of the most innovative ideas I've seen - - - and one seemingly not being considered by Congress - - - comes from ConLaw Prof, Mae Kuykendall.
She posted what she calls a "novel" notion on the ConLawProf listserve; it is quoted here with her permission:
March 18, 2009
Bush v. Gore Redux in Coleman v. Franken?
The Minnesota recount litigation goes on and on - - - more than four and a half months after the election, the Senate race between Franken and Coleman is still not finalized.
An insightful piece on Slate by Richard Hasen ponders the relevance of Bush v. Gore. As Hasen notes, the Court sought to limit Bush v. Gore to the particulars of 2000, the Court has not relied upon it, and appellate courts have not developed it.
Nevertheless, the opinion is cited and is obviously still "in the books," not to mention on the internet.
Hasen's brief piece is well worth reading, if only for this great closing:
In the end, Coleman doesn't have a strong equal-protection argument. Then again, most of us thought George W. Bush didn't, either.
Edlin on Judges and Unjust Laws
Douglas E. Edlin (Dickinson Poli. Sci.) recently published Judges and Unjust Laws: Common Law Constitutionalism and the Foundations of Judicial Review with the University of Michigan Press. I look forward to reviewing and recommending it in greater detail here soon, but in the meantime here's part of a Q&A with Edlin:
Why does it matter that judges must choose between moral and legal obligations?
Edlin: It matters because if judges act only out of a moral obligation, some people might say that they are no longer acting as legal officials. If judges act out of a legal obligation, then their actions remain within their judicial responsibility and authority.
Where do you see this all playing into the future of law?
Edlin: We see some of it playing out right before our eyes. Judicial decisions about the availability of habeas corpus, for example, for people held at Guantanamo Bay, contain discussions of the meaning of that right constitutionally and at common law. And these discussions, sometimes explicitly and sometimes implicitly, address the role and authority of the courts in a manner that touches directly on the analysis in the book.
Will these issues be addressed under the new administration?
Edlin: They already are. President Obama’s executive orders eliminating secret prisons, coercive interrogation practices, and (in the future) the Guantanamo detention facility itself are examples of his belief that our existing constitutional and legal principles are sufficient to address the threat of terrorism (and that these principles are, at least in his view, inconsistent with the existence of prisons, practices and facilities of this sort).
I highly recommend this.
The Big Change in Obama's Position on Detention Authority
The Obama administration has come under fire for its "refined" position on its authority to detain individuals in the war on terror, filed with the U.S. District Court in D.C. last week. (I posted on this, with a link to the administration's filing, here.) Critics charge that the administration's definition of detainable individuals is the same in all but name as the Bush administration's definition; the Obama administration merely omits the Bush-created label "enemy combatant."
The WSJ posts an opinion piece today making just this claim (thanks to Israel Balderas for the tip):
By now, President Obama's lather-rinse-repeat approach to the legal war on terror is familiar: He lambastes his predecessor, then makes cosmetic changes that leave the substance of Bush policy intact. But Mr. Obama's decision last week to renounce the term "enemy combatant" is almost a parody of this method, given that the "new standard" for detaining terrorists is identical to the old one.
But these arguments miss the larger change in the administration's refined policy: The Obama administration, unlike the Bush administration, said it will abide by U.S. and international law.
The administration's memo reflecting its refined position and filed last week in federal court startswith the Congressional Authorization for Use of Military Force and with principles of international law. The administration derives its detention authority--and also cabins its detention authority--based on those sources alone. As the WSJ notes, the memo reads like a "solid legal argument" for detaining enemy combatants. But the argument is based upon Congressional authorization (in the AUMF) and international law.
More to the point: The administration's position means that it intends to adhere to U.S. law, the Congressionally imposed parameters in the AUMF, and international law.
The Bush administration, in stark contrast, specifically disclaimed these sources as limits on the President's inherent Commander-in-Chief authority under Article II. The Bush administration time and again asserted inherent executive authority to capture, detain, and treat (and mistreat) anyone--here or abroad--as an enemy combatant, without regard to U.S. law, the AUMF, and international law.
The WSJ and others minimize this substantial difference by saying that the Bush administration, too, claimed authority under the AUMF. But this was always the Bush administration's second, alternative argument--a kind of safe haven if its extraordinary claims of inherent executive authority didn't work out. Its first and primary position was always that the President possessed inherent Commander-in-Chief authority, irrespective of U.S. and international law.
So while Obama's refined definition of detainable individuals may look an awful lot like the Bush administration's definition of enemy combatant, this glosses over the more significant change in policy: The Obama administration anchored its definition in U.S. and international law.
As I wrotelast week, the real test of the differences will come in the Obama administration's practices. Last week's court filing is a first word from the new administration, but it's by no means the final word. Let's see how the habeas cases and the administration's review of detention policy play out.
March 17, 2009
Conference at Drake
The goal of this Symposium is for an interdisciplinary group of experts on
various religious traditions to describe the constitutional relationship
between "their" religion and one or more nations. These scholars will
discuss history, significant constitutional and statutory provisions,
important court cases, major political and social controversies, etc. They
will also make normative judgments about whether these governments, their
legal systems and their courts adequately respect free exercise and
As the presentations and debate unfold, the speakers will address
questions regarding the dignity of persons, what role governments should
play in promoting more virtuous societies, how religion influences
constitutions and legal systems, and what limits should exist on state
involvement with religion.
More about the Symposium, including registration info, here.
When and How to Use Signing Statements to Declare Law Unconstitutional
The NYT editorialized today that President Obama should increase transparency in and promote checks on his use of Presidential signing statements to declare portions of bills unconstitutional. The editorial comes the week after President Obama first issued cautionary guidance on the use of signing statements (on Monday) and then issued his first signing statement declaring portions of the stimulus bill unconstitutional (on Thursday).
[The principles outlined in Obama's guidance] are good policies, but the real test will be in how they are applied. Mr. Obama should not use signing statements, as Mr. Bush did, to assert that his own interpretation of the Constitution trumps those of Congress and the courts. If he wants to claim that his objection is "well founded," then he should be able to point to court decisions or he should find a way to get the issue into court so the judiciary can make a call.
President Obama's statement last week on the stimulus bill met his principles outlined in his guidance, but it did not meet thishigher standard advocated by the NYT: He cited no case law, the statement included no real constitutional analysis, and it's not clear that cases testing his constitutional objections could ever find their way to federal court.
But the NYT standard, while promoting transparency and checks, is also skewed inappropriately toward the judiciary. For example, on many constitutional questions in federal legislation--and some raised in Obama's first signing statement--case law may be sparse or even non-existent. Therefore past executive practice, OLC advice, and any Congressional constitutional analysis may be much better indicators of the constitutionality of certain provisions.
Similarly, the President's constitutional position on many legislative provisions might never reach the courts, because the President, in declaring certain portions unconstitutional, refuses to enforce them. These nonactions raise justiciability problems and may well elude judicial review.
The NYT has it right that signing statements declaring portions of law unconstitutional should be more transparent and should leave room for checks. But in our system the judiciary is not the only branch with authority to interpret the constitution, and it is not the only check. For many of these questions, past executive analyses and practices are better than case law to support a President's position; and for many of these questions, Congress is a better check than the courts.
Further Issues Regarding the Constitutionality of the Bailout
It appears that a specific provision of the new stimulus legislation is causing a constitutional stir. Con Law Professor Ronald Rotunda wrote an article for the Chicago Tribune criticizing the portion of the legislation that allows state legislators to bypass a governor's decision to reject stimulus funds. The most relevant portion of the article states:
The two main sources of power that might justify subsection (b) are Congress' power over interstate commerce and its power to tax and spend. The commerce power does not support this law. The commerce power is very broad indeed, but there are limits. One important one is that Congress can only use the commerce power to subject the states to "generally applicable" law. For example, if Congress sets the minimum wage at $7 an hour for all workers in interstate commerce, that law can include state workers in interstate commerce. But subsection (b) is not "generally applicable." By its very nature it only governs states.
The second main source of federal power is the spending power, allowing Congress to bribe the states to take certain actions. For example, years ago Congress told states that it would reduce federal highway funds to any state that did not increase its legal drinking age to 21. The court upheld that law, with Justices William Brennan and Sandra Day O'Connor dissenting.
The spending clause does not work here. Congress is not telling a state, "You must change your state constitution before we will give you a dime." Instead, Congress is simply telling the state, "We have changed your state constitution so that we give more power to the state legislature, without any pesky interference from the governor."
Over at Balkinization, Jack Balkin agrees, and further states:
I think this provision may not be constitutional. Unless you can demonstrate that under South Carolina law, the South Carolina Legislature, acting alone, speaks for the State, it would seem to me that the governor's consent is necessary.
Spending Clause jurisprudence requires that the state freely consent to conditional grants by the federal government. But not just any state official may give consent. The question of who is authorized to give consent to accept federal funding is a question of South Carolina state law, not federal law. Federal law can offer the states money to enforce federal mandates and even to pass legislation, but what it may not do is decide which state official is authorized to consent to federal grants that bind the state and its operations.
Professor Balkin's linked post discusses South Dakota v. Dole's edict that the federal government not coerce the states into action and how it applies in this scenario as well.
As this story develops, it will be interesting to watch. At present, the legislature has introduced measures to bypass the governor and seek the funds. We'll see where this leads.
(h/t to the VC, as always on top of things).
Justice Kennedy and the Supreme Court
As Court-watchers well know, Justice Anthony Kennedy has firmly taken Justice O'Connor's place as the Court's designated swing-vote. This week two stories place Justice Kennedy in the spotlight. First, an article in the Washington Post outlines Justice Kennedy's role on the Court in several cases. The best quote - "There's clearly a center on this court," says Supreme Court practitioner Roy T. Englert Jr., "and it consists of Justice Kennedy." (The article also has some great information on Justices Scalia, Souter, and Stevens.)
Second, the Blog of Legal Times has a brief interview with Helen Knowles, the author of a new book about the justice. According to the BLT, "Knowles said she views Kennedy as a "modest libertarian" especially in the areas of free speech, race and privacy. That libertarianism does not make him reluctant to wield judicial power, she adds. " For those in the DC, Maryland, Virginia area (and those outside the area with the ability to stream over the internet), Professor Knowles will discuss her work at the CATO institute next week during a forum devoted to Justice Kennedy.
UPDATE: Professor David Cohen of Drexel Law has also written a piece analyzing Justice Kennedy's role on the Court (abstract here). Professor Cohen argues that Justice Kennedy is particularly influential in cases involving sex discrimination and other gender issues. Please read and enjoy!
March 16, 2009
Heller's Impact on the Right to Bear Arms
D.C. v. Heller, last term's Second Amendment case in which the Court held that the Second Amendment protects an individual right to keep and bear arms, is not giving a lot of traction to gun-rights advocates in the lower courts, reports Adam Liptak in the NYT.
The courts have upheld federal laws banning gun ownership by people convicted of felonies and some misdemeanors, by illegal aliens and by drug addicts. They have upheld laws banning machine guns and sawed-off shotguns. They have upheld laws making it illegal to carry guns near schools or in post offices. And they have upheld laws concerning concealed and unregistered weapons.
These aren't the most appealing test cases, to be sure, and therefore may not represent the longer-term impact of Heller.
Liptak also reported on the state of Second Amendment incorporation. (The Heller Court did not decide whether the Fourteenth Amendment incorporates the Second Amendment to the states; it didn't have to: D.C. is not a state.) The case to watch is McDonald v. City of Chicago, now at the Seventh Circuit. The Constitutional Accountability Project filed an amicus brief arguing for incorporation via the Fourteenth Amendment Privileges or Immunities Clause, not the Due Process Clause. This approach is unlikely to come into play at the Seventh Circuit, but the brief is a place-holder for this argument at the Supreme Court.
Even if the Court rules the Second Amendment incorporated (by whatever clause), this may not result in much of a change. As Sandy Levinson is quoted in the article: "My own bet is that Heller will more likely than not turn out to be of no significance to anyone but constitutional theorists."