April 11, 2009
Involuntary Servitude Theorizing
Both sides of the abortion debate invoke analogies to slavery. Recently, in the National Review Online, Michael Novak's article "Notre Dame Disgrace" criticizes the university for inviting Barak Obama, arguing that "I doubt very much whether the University of Notre Dame would ever give an honorary degree to a slave owner or a propagandist for slavery." One of the presentations scheduled for the upcoming conference on the Thirteenth Amendment, previously blogged here, is “Forced Labor, Revisited: The Thirteenth Amendment and Abortion” by Andrew Koppelman, of Northwestern University, School of Law. In Koppleman's previously published article, Forced Labor: A Thirteenth Amendment Defense of Abortion, 84 NW. U. L. Rev. 480 (1990), he argues:
Abortion prohibitions violate the amendment's guarantee of personal liberty, because forced pregnancy and childbirth, by compelling the woman to serve the fetus, creates “that control by which the personal service of one man sic is disposed of or coerced for another's benefit which is the essence of involuntary servitude.”' Such laws violate the amendment's guarantee of equality, because forcing women to be mothers makes them into a servant caste, a group which, by virtue of a status of birth, is held subject to a special duty to serve others and not themselves.
Outside the abortion context, doctrines and theoretical perspective of slavery and involuntary servitude continue to have valence. For example, in an extensive essay-review I've authored and just published in Berkeley Journal of Gender, Law and Justice, available on ssrn, I discuss a recent high profile prosecution on Long Island regarding wage slavery. (The essay springs from a book considering the writer Virginia Woolf's life and work).
In the context of domestic violence, Joyce McConnell, now Dean of West Virginia University College of Law, argued the applicability of the Thirteenth Amendment to the situation of domestic violence.
In her article, Beyond Metaphor: Battered Women, Involuntary Servitude and the Thirteenth Amendment, 4 Yale J.L. & Feminism 207 (1992), McConnell opened with a rejection of slavery as metaphor:
When Congress debated the Thirteenth Amendment and its prohibitions against slavery and involuntary servitude, anxious members inquired whether it would alter the traditional relationship of husband and wife. The concern materialized out of a political context in which those who sought abolition of African American chat-tel slavery and the establishment of women's rights were applying the norm of individual freedom beyond the nar-row scope of landed white men. At that time, the metaphor “women are slaves” had rhetorical currency and suggested that white women shared with African American men and women a similar legal and social status of non-identity and disability. No matter how rhetorically useful this metaphor may have seemed then or may seem now, it was and remains grossly inaccurate and inherently racist. It obscured the fact that white women were slaveholders or beneficiaries of the slave system. It failed to recognize that even though there were significant legal, political and social restraints on white women, they did not as a class suffer in the way that African Americans did under slavery. Finally, it ignored the fact that African American women were slaves and that other women were not, no matter what their subordinate legal or socio-economic status. So, the metaphor was and is fundamentally flawed both by its generality and its exclusion.
Id. at 207-8 (footnotes omitted). Instead, McConnell argued, the term "involuntary servitude" is applicable. Indeed, she discussed the fear of certain Congressmen that the prohibition of "involuntary servitude" would reshape their domestic lives and homes:
Senator Howard worried that if the Amendment was to be enacted “a woman would be equal to a man ... [a] wife would be equal to her husband and as free ... before the law.” Representative Cox was concerned that if Congress had the power to regulate “domestic slavery” then perhaps it could exercise this power to “change the relation of ... husband and wife.” To allay his colleagues' fears, Senator Sumner the chief proponent of the Thirteenth Amendment in the Senate, argued that the right to contract and the right to maintain a family were natural rights essential to the concept of freedom. In this he implied that to regard the Thirteenth Amendment as interfering with the traditional legal relationship between husband and wife would be reductio ad absurdum. His narrow interpretation of the Thirteenth Amendment assured its opponents that the Amendment would not in any way alter the family under the law, but rather was to give everyone, regardless of their race, the right to create and maintain a family under the laws then applicable to only whites and freed slaves. Such a family presumed the traditional authority of the husband over the wife.
Id. at 216 (footnotes omitted). This is a passage I return to again and again, using it to provoke class discussions.
In her article, McConnell goes on to mount a compelling argument regarding battered women as subject to involuntary servitude. Although not explicitly based on the Thirteenth Amendment, Congressional actions addressing domestic violence such as the Violence Against Women Act and immigration remedies for battered women, fit within some of the solutions McConnell proposed seventeen years ago. Yet McConnell's article still raises fresh perspectives.
LA Times Op-Ed on Caperton v. A.T. Massey Coal Co.
According to an Op-Ed in the LA Times here by David B. Rivkin Jr., partner at Baker & Hostetler who served in the Justice Department and the White House counsel's office in the administrations of Ronald Reagan and George H.W. Bush, the Supreme Court should not find a due process violation in Caperton v. A.T. Massey Coal Co. for the judge's refusal to recuse himself, most recently blogged here. Rivkin argues:
April 10, 2009
The Teaching Assistant
Hello! Welcome to this week's edition of the Teaching Assistant! In an eventful week, there are a few stories that may have missed your attention. Here goes . . .
The Third Circuit held that female Muslim police officers have no right to hear tradition Muslim headgear on the job.
Time Magazine chronicles the challenges that may face gay marriage advocates in the future.
Despite its legality, states continue to consider laws that would allow pharmacists to refuse to dispense "Plan B" on the grounds that doing so violates their conscience.
Slate has a facinating article on the history of abortion and its impact on the world stage.
Congress and the Courts
In a speech, Justice Ginsberg says she is "lonely" as the Court's only woman. Further she says the Court "doesn't look right" with only one woman.
The New York Times explores how the ongoing battle between Al Franken and Norm Coleman for the Minnesota Senate seat is affecting Senator Amy Klobluchar, currently the only seated Senator from that state.
Finally, an article from Politico examines how the federal judiciary is carefully making sure that the executive does not overstep its bounds. It's a good refesher on the principles of checks and balances.
That's all for this week. Next week - same time, same place!
CIA Closes Black Sites, Rejects Enhanced Interrogation Techniques
CIA Director Leon Panetta yesterday issued a message stating that the CIA no longer operates its black sites, rejects "enhanced interrogation techniques," and no longer uses contractors to conduct interrogations.
Panetta said that while the Agency no longer uses techniques authorized by the DOJ between 2002 and 2009--yes, 2009--he also said that he opposed investigation and punishment of officers who relied on DOJ guidance in conducting interrogations. "This is what fairness and wisdom require."
But Panetta said that the Agency will "cooperate with Congressional reviews of past interrogation practices" and was silent on investigations into DOJ legal advice authorizing enhanced techniques and torture.
Meanwhile, the DOJ has until next Thursday, 4/16, to decide whether to release three OLC memos justifying CIA methods.
April 9, 2009
Obama Administration Claims Broad State Secrets Privilege (Again)
The Obama administration last Friday filed a motion to dismiss in Jewel v. NSA, the Northern District of California case challenging NSA's "dragnet surveillance" with the cooperation of private telecon operators, asserting sovereign immunity and the State Secrets Privilege. (The companion case against AT&T, Hepting v. AT&T, is stalled while the plaintiffs challenge Congress's grant of immunity to private telecon operators. The government intervened in that case to assert the State Secrets Privilege, but the plaintiffs' claims won't even get out of the gate if the court dismisses it based on telecon immunity.)
The buzz in the blogs and on cable news is that the Obama administration's position in the case is more aggressive than the Bush administration's position. (See, e.g., Glenn Greenwald's posts here and here; see plaintiff Electronic Frontier Foundation commentary here. Thanks to reader and student Jerzy Banasiak for the tip on the EFF commentary.)
The administration's State Secrets claim is, indeed, as broad as it could be: It calls for dismissal of the entire case based solely on an affidavit of the Director of National Intelligence that litigating any of plaintiffs' claims--even litigating plaintiffs' standing--would require disclosure of state secrets. The administration leaves no room even for in camera judicial review of the evidence; it calls for dismissal based only on the DNI affidavit. The government's position could only be broader if it asked the court to destroy all record of the case (!). (Watch out.)
But the administration's position isn't really surprising, either. Recall that the administration reasserted the Bush administration's State Secrets claim just a couple months ago in Mohamed v. Jeppesen Dataplan, Inc., the Ninth Circuit case against a Boeing subsidiary for its role in the plaintiff's extraordinary rendition.
To be sure, the administration's claim in Mohamed was merely a re-claim of the Bush administration's position, while its claim in Jewel is a product of its own litigation strategy. And the administrations' role in Mohamed was as intervenor, not defendant.
But neither of these really matter in evaluating the scope of the Obama administration's State Secrets claims. The Obama administration had plenty of time to reconsider the Bush strategy in Mohamed; the re-assertion of the State Secrets Privilege in that case was every bit as much a product of Obama administration thinking as the assertion in Jewel. And the difference between defendant and intervenor in these cases isn't a principled way of evaluating the scope of the admininstration's claims.
In short, we now have two strong pieces of evidence that the Obama administration intends to maintain the broadest possible position on State Secrets.
The administration's position, by the way, is directly at odds with a bill now in Congress to limit the President's use of the State Secrets Privilege. I posted on this recently; the bill is here. This would require in camera review of material that the executive claims is covered by the State Secrets Privilege and thus provide a judicial check on the administration's claims. The administration will almost certainly raise constitutional objections to this bill (should it ever get out of committee), but it would also do well to at least consider the concerns that motivate it. The bill is much more consistent with the administration's commitments to increase transparency. (And the same bill last session was co-sponsored by two current top administration officials, the Vice President and the Secretary of State.)
The other piece of the administration's motion in Jewel--its claim of sovereign immunity--is equally broad, especially considering the careful carving out that Congress did in the act last year granting immunity to private telecons (but not to the government). In the wake of those debates, the administration's claims of sovereign immunity are truly breathtaking.
April 8, 2009
Government Can Transfer Guantanamo Detainees Without Warning
The D.C. Circuit ruled (2-1) yesterday that the administration can transfer nine Uighurs, the Chinese Muslims held at Guantanamo Bay, without warning to their counsel. (Recall that the D.C. Circuit last spring ordered the administration to release the Uighurs, transfer them, or convene new CSRTs. Most recently the Uighurs filed a motion to hold Secretary Gates in contempt for failing to comply. The Uighurs are still at Guantanamo Bay.)
The ruling at once narrows the courts' involvement in detainee transfer and gives Boumediene (and detainees' privilege of habeas) a broad reading. Thus while the Uighurs can't challenge their transfer in court, they can at least get their foot in the courthouse door. This latter point may be the bigger story of the case, given a line of recent rulings on the habeas statute out of the D.C. District that limit Boumediene. But let's start with the former point.
The Uighurs filed a habeas claim in the lower court seeking an order to compel the government to inform them 30 days before any transfer from Guantanamo Bay. This would have allowed them to challenge any proposed transfer on the basis that they would likely be tortured in the transfer location. (The administration has maintained that any transfer would be outside U.S. custody; the Uighurs were therefore also concerned that any transfer would take them outside habeas range.)
The district court granted the requested order, but the D.C. Circuit reversed. Judge Ginsburg wrote for the majority that the case was governed by last term's decision in Munaf v. Geren:
The detainees here seek to prevent their transfer to any country where they are likely to be subjected to further detention or to torture. Our analysis of their claims is controlled by the Supreme Court's recent decision in Munaf. In that case, two American citizens held in the custody of the United States military in Iraq petitioned for writs of habeas corpus, seeking to enjoin the Government from transferring them to Iraqi custody for criminal prosecution in the Iraqi courts. The Court held the district court had jurisdiction over the petitions, but that it could not enjoin the Government from transferring the petitioners to Iraqi authorities. As we explain below, Munafprecludes a court from issuing a writ of habeas corpus to prevent a transfer on the grounds asserted by the petitioners here; therefore the detainees cannot prevail on the merits of their present claim and the Government is entitled to reversal of the orders as a matter of law.
Ginsburg wrote that transfer is a matter for the executive, not the courts:
Judicial inquiry into a recipient country's basis or procedures for prosecuting or detaining a transferee from Guantanamo would implicate not only norms of international comity but also the same separation of powers principles that preclude the courts from second-guessing the Executive's assessment of the likelihood a detainee will be tortured by a foreign sovereign. . . . Furthermore, the requirement that the Government provide pre-transfer notice interferes wtih the Executive's ability to conduct the sensitive diplomatic negotiations required to arrange safe transfers for detainees.
As Judge Kavanaugh emphasized in concurrence, however, this separation of powers consideration wouldn't stop Congress from regulating the transfer pursuant to its power to "make Rules concerning Captures on Land and Water."
All this means that the courts won't require the government to notify the Uighurs prior to transfer. But the D.C. Circuit alsoruled that the Uighurs could at least get to court to make this claim via habeas. This may be the more important part of the decision, given the trajectory of recent decisions on the habeas statute under Boumediene.
Ginsburg rejected the administration's narrow reading of Boumedienein favor of a slightly broader reading that extends habeas to cases like the Uighurs'. The administration argued that the Court in Boumediene ruled unconstitutional 28 U.S.C. Sec. 2241(e)(1)--the habeas statute, as amended by Section 7 of the MCA--only insofar as that provision deprived courts of jurisdiction to hear habeas cases falling within the "core" of habeas, i.e., those claims challenging detention or the duration of detention.
But the court rejected thatnarrow reading. Instead, Ginsburg wrote that Boumedieneoverturned 2241(e)(1) for all habeas claims within that section.
This not only opened up habeas for the Uighurs here, but it also bucked the trend in the D.C. District to give the narrowest possible reading to Boumediene. A line of cases coming out of the D.C. District ruled that Boumediene held unconstitutional only 2241(e)(1), not 2241(e)(2). As a result, the district court has rejected several habeas claims of petitioners challenging the conditions of their confinement--claims under 2241(e)(2).
Now by one reading those cases merely held that Boumediene ruled unconstitutional 2241(e)(1), not 2241(e)(2). In other words, they didn't have anything to do with a broad or narrow reading of Boumediene as that case related to 2241(e)(1)--the section at issue here in the Uighurs' case--they only read Boumediene narrowly with respect to 2241(e) (Section 7 of the MCA).
But at the same time the court gave Boumediene its broadest reading within 2241(e)(1). It didn't have to. It could have accepted the administration's claim and dismissed the case on a narrow reading of Boumediene, in the spirit of the trend in the D.C. District.
The Obama administration could moot out this whole mess by releasing the Uighurs into the United States or into another receptive country that won't torture or detain them. (As yet there is no such other country.) But it would still need to sort out habeas cases in the lower courts--the D.C. District cases mentioned above, and the recent district court case extending habeas to Bagram--that, unless the administration closes the camps and releases the detainees, are surely headed for the Supreme Court.
April 7, 2009
Justice Kirby in Conversation at Suffolk Law School
Justice Michael Kirby is recently retired as one of the seven Justices of the High Court of Australia, Australia’s Supreme Court. He is Australia’s longest serving jurist, having been first appointed in 1975. On the occasion of his retirement last month from the High Court, Australia’s Attorney-General Robert McClelland said of Justice Kirby: “Alongside your extensive achievements and contributions to the law, to academia and to the community, you will be remembered most for serving justice with a bold heart, a brilliant mind and respect for the fundamental rights of all citizens.” According to the Australian press, it was a lofty goodbye: to his colleagues, the profession, his staff, to the rituals of the Court, to what Justice Kirby called “the long acts of his drama.” Justice Kirby also thanked his partner of 40 years, Johan van Vloten, and the politicians who made Mr. van Vloten eligible for the pension of a judge’s spouse.
Vermont Legislature overrides veto to legislate same-sex marriage
The New York Times story is here.
Recall that this legislative action should replace civil unions, which the legislature had passed after the Vermont Supreme Court decided Baker v. State, 744 A.2d 864 (Vt. 1999), finding that limiting marriage to opposite-sex couples violated the Vermont state constitution's "common benefits" clause.
Filubuster Over Release of Torture Memos?
Senate Republicans are threatening to filibuster the appointments of Dawn Johnsen as OLC chief and Harold Koh as State Department legal counsel if President Obama releases three OLC memos from the Bush administration that likely contain additional details and legal justifications for detainee torture, according to Scott Horton at The Daily Beast.
This may help explain why the administration is backpedaling on its commitment to release the memos (although Michael Isikoff's Newsweek piece on Friday, describing the conflicts within the administration over the release, suggests that internal objections may be the better explanation).
Horton suggests that the gambit will test Obama's promise of greater transparency:
Barack Obama entered Washington with a promise of transparency. One of his first acts was a presidential directive requiring that the Freedom of Information Act, a neardead letter during the Bush years, was to be enforced according to its terms. He specifically criticized the Bush administration's practice of preparing secret memos that determined legal policy and promise to review and publish them after taking office.
But in the past week, questions about Obama's commitment to transparency have mounted.
If the Republican threat--and not merely internal dissent--is keeping the administration from releasing these memos, is this a legitimate exercise of Congressional power over an administration's agenda--its commitment to transparency and release of the OLC memos? Or is it raw politics? Or both?
April 6, 2009
Debtors' Prisons and the Rights of the Poor
The NYT opined today that states should buck the apparently increasing practice of jailing people because they're poor, calling this both "barbaric and unconstitutional." (Many thanks to Jon Gutek for the tip.)
In Georgia, poor people who cannot pay off fines--plus a monthly fee to the private company that collects the payments--are often sent to jail for nonpayment, according to Stephen Bright, president of the Southern Center for Human Rights. . . .
Until a few years ago, the police in Gulfport, Miss., regularly did sweeps of the city's predominantly African-American neighborhoods, identified people with unpaid fines, and put them in jail. Defendants who could not pay were forced to remain there until they "sat off" their fines. The city ended the practice after it was sued.
Prisoners' rights advocates worry that in these hard times, when government budgets are under pressure, courts and prisons will get even tougher about forcing indigent defendants to pay costs and fees, and will imprison more of them if they cannot come up with the money. The government should be helping people on society's margins build productive lives. Throwing them in jail for being poor makes that much more difficult.
The editorial is right, of course: This is unconstitutional (and barbaric). The editorial references Williams v. Illinois (1970) and Bearden v. Georgia (1983)--and we might add Tate v. Short (1971)--together holding that the state violates the Equal Protection Clause when it jails an individual for nonpayment of a fine, as long as the individual made all reasonable efforts to pay the fine and the inability to pay was no fault of his or her own. From Bearden (O'Connor for the Court):
But if the probationer has made all reasonable efforts to pay the fine or restitution, and yet cannot do so through no fault of his own, it is fundamentally unfair to revoke probation automatically without considering whether adequate alternative methods of punishing the defendant are available.
In more pointed language, Williams quotes Griffin v. Illinois:
There can be no equal justice where the kind of trial a man gets depends on the amount of money he has.
On Equality and "Judicial Activism"
On Friday, the Supreme Court of Iowa became the latest state court to rule that preventing same-sex couples from marrying violates the constitution. Of course, there is much blathering about how the "activist court" has deliberately "run roughshod" over the will of the people, and how the court forced same-sex marriage down the throats of the people.
To all the hyperbole about "activist judges" who are not doing what the people want, I say "enough." It's time to replace the hypebole with actual legal discussion. To wit, a few legal points.
First, the creature known as an "activist judge" exists in the same realm as Santa Claus and the Tooth Fairy. In the imagination of those who disagree with their opinions, judges sit around looking for ways to mangle the law. In reality, judges swear to uphold and affirm the law. Judges care about the law uber alles. The women and men in the black robes do their utmost to uphold the letter and the spirit of the law, and our disagreement with them does not enable us to falsely accuse them of engineering results.
Second, the term "activist judges" is an easy way to dismiss the law itself. "Oh, it's not the law, it's those darned judges." Such claims might be entitled to weight if the legal reasoning is so flawed that the result appears tortured. But that is not the case here. The Iowa case rests on a solid foundation which should put any claims of "activism" to rest. It is no accident that the majority of the state courts that have heard same-sex marriage cases have ruled that denying marriage rights on the basis of sexual orienation violates the principles of equal protection and fundamental rights. The idea of equal protection is rooted in the federal consitituion, but states can always provide a higher level of protection. The law says that all Americans must be treated equally, and the Iowa opinion stands for that premise. So, in essence, the Iowa judges were upholding the law, rather than disparaing it.
Third, as we all know, laws are made to be interpreted - very few laws lend themselves to bright line application. That means that there are usually at least two ways of viewing a legal issue. But the bottom line is that the law is the main focus. Should the judges be attacked because reasonable people can differ on a legal point?
Finally, and most important, much has been made of the fact that the majority of Iowans may not support same sex marriage. The statistic is thrown out as proof that the judges are not doing what the people want. It is the job of the legislature to answer to the people, but it is the job of the courts to answer to the law. So, the same people who are accusing the courts of being activist criticize them because they don't make their decisions based on populist whims? The inconsistency in logic is patent. The court - as it should have - did what it felt the law called it to do.
In sum, courts are not perfect. Sometimes, an interpretation of the law can trigger useful debate. Sometimes, a legal opinion is clearly flawed. However, the debate should always center on the law itself, rather than disparaging those charged with interpreting it.
Update: Newt Gingrich calls the Iowa Court "seven lawyers" who displayed "judicial arrogance."
Notes on the Court, Part II
Last week, the Legal Times ran a piece that should be of interest to all those who are fascinated by the selection fo judges and the make-up of the Court. The piece focuses on judicial diversity, but not the type one might expect. The article, "Not Just Harvard," laments the fact that of the current nine Justices, six attended Harvard. (Incidentally, Thomas and Alito went to Yale, so everyone on the Court - with the exception of Justice Stevens - is from an Ivy League Law School.) The author states that the Ivy League limitation "Rather than suggesting that this results from a search for quality, it suggests attention to too narrow a pool of prospects. It resembles the “old boy network,” or an “elitist” approach . . . There is, of course, nothing wrong with Harvard Law School. But the Court should not consist predominantly of any one type. When the Court has more than one or two alumni of the same law school, it loses the advantage of a broader range of perspectives." The piece further decries the fact that all but two of the current court are fom the East Coast, and all nine - each and every one - formerly served as federall appellate judges prior to serving on the Court.
Let's look at each of these criticisms in reverse order. First, is there a serious diversity issue arising from the lack of non-judges on the Court? Some (Chief Justice Roberts) say it is wonderful, as it allows the Court to focus. Others (some appellate judges and scholars) disagree, and believe that law professors, governors, and the like, could bring much needed expertise to the bench. (See here and here for previous posts.) This is one that could arguably go either way - the data seem to support both conclusions. Apart from the data, though, it seems that previous experience as a judge may be highly useful, but not necessary for effective service on the Court. However, since the Court has gone so solidly in one direction, the Obama administration would be wise to consider these issues as it makes its selections.
Second, I would tend to think that geography is probably less critical. After all, the law is the law, and while persons of different regions might have different experiences, again, it shouldn't be a necessity. However, as the article states, "Even so, it is not politically or socially desirable that large expanses of this country be subjected to rulings made by judges almost exclusively from the Northeastern Atlantic seaboard." So, the Court could increase its legitimacy with the public by increasing its geographic representation.
Finally, the choice of law schools may be more problematic. If, as the author posits, it is true that "When the Court has more than one or two alumni of the same law school, it loses the advantage of a broader range of perspectives," then the Court has a serious problem. However, even if we do not agree that graduates of the same law schools tend to have similar views or philosophies, there is something more troubling - the message that is sent to the world at large. When these Justices sit on the Court, the message that is reinforced is "These are the schools that matter." Of course, no one wants to see a Supreme Court stacked with incompetents who don't know their preamble from their posterior. However, if one law school provides two-thirds of the sitting Justices, we must objectively acknowledge that it is a problem. It strongly suggests that our definition of a "qualified" candidate should be redefined, especially as it relates to law schools. There are excellent public and private law schools that turn out amazing graduates. Moreover, some of the most noted justices in recent history - Earl Warren, Thurgood Marshall, Warren Burger, and Hugo Black - did not come from the Ivy Leauge. There are a wide range of wonderful lawyers that can come from a wide variety of schools. In this era of U.S. News Rankings, it is easy to lose sight of that simple truth.
In the end, while everyone on the current Court is emminately qualified, there is considerable room at the table for those that bring new geographic, legal, and educational experiences to the table. Here's hoping that the Obama administration considers these issues in its efforts to diversify the federal bench.
April 5, 2009
Criddle on Fiduciary Administration
Professor Evan Criddle (Syracuse) just posted on ssrn his most recent article in a pair on the fiduciary nature of the administrative state, Fiduciary Administration: Rethinking Popular Representation in Agency Rulemaking, also forthcoming in the Texas Law Review. This is smart, provocative, and timely; it's also an interesting and important challenge to the unitary executive theory. I highly recommend it.
Criddle's core thesis is that agencies ought to act like fiduciaries. The fiduciary model of popular representation goes back at least to Cicero--and was "deeply influential among the American political elite during the founding period--but Criddle argues that it's especially applicable to the contemporary administrative state because of agencies' relationships to Congress and to us:
When Congress entrusts administrative authority to administrative agencies, it tasks federal regulators with serving the interests of their designated statutory beneficiaries. Agencies necessarily exercise discretion in rulemaking, because Congress lacks the time and resources to explore all of the potential ramifications of its general delegations. The entrustment of discretionary lawmaking power to administrative agencies therefore engenders a relationship in which the public depends upon federal regulators to employ their discretionary powers in the public interest and stands in a position of acute vulnerability to the abuse of administrative power. Moreover, as in the legislative process, most voters do not monitor agency activities closely and lack coherent, informed preferences concerning administrative lawmaking. Just as constituents rely on their legislative representatives to educate them about lawmaking initiatives and act in their interest, the electorate likewise relies on administrative agencies to bring their expertise to bear in studying regulatory problems, to educate the public on the stakes of regulation, and ultimately to employ their rulemaking powers fairly and reasonably in furtherance of the general public welfare.
Criddle identifies six principles for a fiduciary agency--purposefulness, integrity, solicitude, fairness, reasonableness, and transparency--that distinguish his model from the "majoritarian proxy model of popular representation":
As long as a federal regulation enjoyed the suppose of a public majority, it would make little difference under the proxy model whether the regulation comported with Congress's purposes, whether it arbitrarily discriminated against rival classes of beneficiaries, or whether it reflected rational deliberation conducive to informed decision-making. In contrast, the fiduciary model insists that each of these principles is critical to achieve meaningful popular representation in the modern administrative state.
Criddle next offers three examples--designed to be illustrative, not exhaustive--of how Congress might move toward a fiduciary model:
(1) recalibrating the APA's exceptions for informal notice-and-comment rulemaking,(2) expanding judicial review of agency inaction in rulemaking, and (3) mandating disclosure of communications between agencies and the White House related to agency rulemaking.
Criddle is keenly aware of the piece's timeliness, what with President Obama's moves to increase transparency in the executive branch and more generally to increase participation in federal government. But he's also aware that Congress is unlikely to adopt his six principles anytime soon. He thus targets his argument at the White House and the agencies and offers concrete policies that they can adopt unilaterally to effect a fiduciary administration.
Whether this happens or not, Criddle's ideas about agencies' relationships to Congress and to We the People are quite appealing from the standpoints of open government, accountability, responsiveness, deliberation, and, well, democracy. They also provide a thoughtful balance to literature on the unitary executive theory. I highly recommend this.
The Teaching Assistant
Hello! After a brief hiatus to attend the SouthEast/SouthWest People of Color Scholarship Conference (which was amazing - thanks to all of the organizers!), the Teaching Assistant is back with a vengence. Let's take a look at this week's stories.
The Supreme Court is poised to rule on several cases that affect civil rights in the remainder of the term. The cases concern voting rights, fair housing, employment discrimination, and education.
Gainesville, Florida, home of the University of Florida, recently rejected an effort to repeal the legislation prohibiting discrimination against persons on the basis of gender identity. Proponents of the repeal had been afraid that males would abuse the law to enter women's restrooms.
The "mommy gap" - the gap in pay between female workers with children and other employees - still remains. In a related story, the recession is being used as an excuse to discriminate against pregnant women and new mothers. (But since these employees are already going to earn less, wouldn't it be more fiscally prudent to lay off some of those more expensive male employees?)
While the contraceptive drug "Plan B" is legal, all women do not share access to the drug. One group that is surprisingly omitted is women serving in the armed forces. The drug is not included on the formulary list for the military, so servicewomen - and the wives of servicemen - will have increased difficulty obtaining the drug.
It seems that the courts may soon be poised to answer a question posed by my Con Law I students every semester - why doesn't charging different toll rates for in-state and out-of-state vehicles violate the Dormant Commerce Clause? Drivers are challenging the "EZ-Pass" rates in Massachusetts and Rhode Island in federal court. More analysis here.
That's all for this week. Enjoy!
UPDATE: See our previous post on the Commerce Clause here. Sorry for the overlap!
Who Knew What at Guantanamo?
The Seton Hall Law Center for Policy and Research released report, Torture: Who Knew, last week concluding that top military brass were aware of detainee abuses at Guantanamo Bay and misled Congress about them. The report:
A large number of Guantanamo detainees were abused repeatedly over a period of thirty (30) months, during which time senior FBI officials received many reports of abuse but delayed forwarding them to the Department of Defense.
At least five (5) generals were aware of these abuses: at least one general encouraged the abuses; one general (then Provost Marshall of the army) discarded rather than investigated reports of abuse; one general, after having been formally advised of the abuses, ordered only a very narrowly tailored investigation; and two generals assigned to perform that investigation ignored some of the worst abuses and affirmatively covered up reports of abuses that surfaced during the investigation.
According to the Seton Hall study, a DOD report of abuses sent from the FBI to DOD, the "Schmidt Report," was woefully incomplete and failed to include "the most significant abuses contained in the FBI referral." General Schmidt, one of the authors, omitted the same information in his testimony to Congress, and subsequently the Schmidt Report "has been presented as a complete review and rebuttal of allegations of detainee abuse at Guantanamo Bay."
The Seton Hall report is based on reports to senior FBI officials and notes from the Schmidt-Furlow investigation (leading to the Schmidt Report)--"entirely upon statements made by Government agents"--received through FOIA requests.
The Seton Hall report came out just days after the Spanish national security court took the first steps to investigating high level Bush officials for establishing the legal framework to justify torture in violation of the Geneva Conventions and the Convention Against Torture.
Related: National Geographic Explorer will air its study of Guantanamo Bay, Inside Guantanamo, tonight, Sunday, April 5, at 8:00 Eastern.