Saturday, January 17, 2009

Poverty and Con Law - Saturday Evening Review

Even if law students comply with Justice Scalia's widely reported remark last year admonishing them not to enroll in waste-of-time courses such as "Law and Poverty," it might not be sufficient to insulate students from the legal problems of poverty - - - at least if ConLawProf Stephen Loffredo has his way.

As part of a Symposium entitled "What Is the Place of Poverty Law in the Law School CurricuLoffredolum?: Looking Back and Planning for the Future," Loffredo confronted the "place" of poverty in a traditional Constitutional Law Structures course.  In his article, Poverty, Inequality, and Class In The Structural Constitutional Law Course, 34 Fordham Urb. L.J. 1239 (2007),  Loffredo admits that the relevance of poverty issues are more readily apparent in the "rights" portion (or separate course) of Constitutional Law courses, but argues that while not always apparent, legal issues of poverty and economic inequality are integral to constitutional structures courses. 

Most helpfully, Loffredo offers some very specific suggestions about integrating issues of poverty and class inequality.  His discussion of "the founding" and judicial review principles in Marbury v. Madison and after is especially noteworthy.  For example, Loffredo highlights a possible area of discussion:

students might be asked to consider whether the counter-majoritarian critique operates in the same way when litigants without access to economic power, and therefore little access to the political process, seek assistance from the courts.  If people living in poverty lack a democratically fair share of political access--if the ordinary channels of civic and political engagement are not open to them, so that courts are the only meaningful avenue or effective point of access--then perhaps the availability of judicial redress and the institution of judicial review in those cases does not deviate from democratic practice at all, but serves as a corrective that enhances democracy.

More provocative, perhaps, is Loffredo's suggestions regarding the dormant commerce clause.  Loffredo candidly states that a notion that "the Commerce Clause has anything to say about treatment of poor people may come as a surprise to students," and perhaps some ConLawProfs.  Here, Loffredo's suggestion is not so much about directing student discussion as about including different material.  He suggests that " a key, though largely neglected,"  dormant commerce clause case, Edwards v. California, 314 U.S. 160 (1941), "speaks eloquently to the issues of poverty, inclusion, and national community, and provides a window into the shifting judicial understandings of poor people and the nation's responsibility for the economic well-being of its citizens."   His  extended argument for the then-relevance and the continued relevance of Edwards is quite convincing. 

Loffredo also has suggestions for the Eleventh Amendment, Congressional power under section 5 of the Fourteenth Amendment, and even Martin v. Hunter's Lessee. These are all worth considering. Most of Loffredo's suggestions do not require retooling the Syllabus, but offer thoughts for teaching the structural dimensions of Constitutional Law to include poverty law issues.

These suggestions may be more timely now than when written.  In some of the article's introductory passages, Loffredo observes that the norm has become obscuring economic inequality and class issues throughout Constitutional Law and the law school curriculum.  Could it be that these observations are becoming less true at the beginning of 2009 given various changes in the political and economic climate?  All the more reason to consider Loffredo's suggestions.


January 17, 2009 in Dormant Commerce Clause, Eleventh Amendment, Interpretation, Scholarship, Teaching Tips | Permalink | Comments (0) | TrackBack (0)

Friday, January 16, 2009

The People and the Judiciary

The Federalist Society 2008 National Lawyers Convention is available online.  The program, which explores the role of the judiciary, includes an impressive and extensive line-up from the bench, the bar, and academia.  I especially recommend the Friday afternoon session titled Federalism: The Roberts Court and Federalism, including Paul Clement, Walter Dellinger, John Eastman, and Jeff Rosen, moderated by Judge Sentelle (D.C. Cir.).  Sen. Mitch McConnell gives the opening, and Justice Scalia closes.  Check it out.


January 16, 2009 in Federalism, Jurisdiction of Federal Courts, Scholarship, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

The Road From Lincoln to Obama: The Constitution and the New Birth of Freedom

The American Constitution Society, the NAACP LDF, MALDEF, and the Constitutional Accountability Center co-hosted a lunch-time panel discussion this past Wednesday on the "new birth of freedom" that Lincoln spoke of at Gettysburg and the Reconstruction Amendments.  This is a very impressive panel--Mary Frances Berry; Eric Foner; John Payton; John Trasvina; and Doug Kendall--and a stimulating and provocative program.  Check it out--audio and video--here.


January 16, 2009 in Reconstruction Era Amendments | Permalink | Comments (0) | TrackBack (0)

Right to Counsel in Truancy Proceedings

The Washington Court of Appeals--Washington's intermediate appellate court--ruled this week that children in truancy proceedings have a right to counsel (appointed by the district) as a matter of due process.  The opinion is here.

The court used the familiar Mathews v. Eldridge Fourteenth Amendment procedural due process balancing test, but there are several notable points in the court's analysis (bulleted below).  Washington, like many other states, adopts the federal due process test, but puts their own gloss on it--often opening additional space for claims of individual rights.  In this case, Washington's gloss--leading to the right to counsel--is characterized by these points:

  • The court recognized that the truancy proceeding itself could not lead to a deprivation of physical liberty (although a subsequent contempt proceeding for violation of the truancy proceeding terms could).  But the court nevertheless credited the child's liberty interest, because the child is, well, a child (and therefore cannot seek counsel or defend rights on his or her own).  In adult cases (like child support enforcement proceedings) the Washington courts had previously ruled that physical liberty was not a serious interest, because the underlying proceeding couldn't result in a deprivation of physical liberty (even if subsequent contempt proceedings could).  The court thus recognized that the claimant's capabilities matter--enough to alter the traditional rule on physical liberty once removed.
  • The court also credited interests in privacy and bodily integrity (because a truancy proceeding could result in mandatory drug or alcohol tests) and education (because a truancy proceeding could result in a mandatory change of schools), thus recognizing more than merely physical liberty as an important interest.  (Federal procedural due process cases on the right to counsel simply compare the level of deprivation of physical liberty to the possibility of an absolute deprivation (as, e.g., in Gideon v. Wainwright).  If physical liberty (at any level) isn't in play, the right-to-counsel claim is a nonstarter.)  The court's discussion of these interests here marks a move toward recognizing a wider range of important interests in the due process calculus.
  • The court ruled that the possibility of error in a truancy proceeding was magnified significantly because the target was a child.  This was so even though the child's parent could attend the truancy hearing.  The procedural rules--relatively simple, compared with rules of civil or criminal procedure--were complicated enough that a child would have a hard time protecting his or her interests.  Combined with the court's attention to the child's capabilities (discussed above), this means that the court will hold up the procedures to the claimant's capabilities and ask whether a particular claimant can proceed effectively under particular procedures--a comparison that we don't often see in procedural due process right-to-counsel cases.
  • The court ruled that the state's interest in saving money--the ubiquitous state interest in right-to-counsel cases--was simply insufficient to outweigh these other considerations, even though counsel for truancy proceedings could impose an "extreme burden" on districts. 

We'll report if this goes to the Washington Supreme Court.  For more on the right to counsel, see the web-site for the National Coalition for a Civil Right to Counsel.  I've posted on the right to counsel in home mortgage foreclosures here.


January 16, 2009 in Fourteenth Amendment, Procedural Due Process, Recent Cases | Permalink | Comments (1) | TrackBack (0)

Thursday, January 15, 2009

Posner on Judicial Review

Richard Posner's review of Law and Judicial Duty by Philip Hamburger (Harvard U Press, 2008), appears in The New Republic, available online here.  Posner begins by calling judicial review the "most momentous, controversial, even frightening power of the federal judiciary--the one in greatest tension with democracy and federalism."

Images_4 Posner has some critiques of Hamburger's arguments:

Law and Judicial Duty may seem at least to have answered the question why the Constitution did not create a power of judicial review explicitly. I am not entirely convinced. Remember that Article VI commands the state judges to bow to the "supreme law of the land." Yet according to Hamburger, as we know, the duty to apply the "law of the land" rests on every judge, and therefore on state judges. Since this is a defining aspect of the office of the judge, why did it have to be made explicit, but not the duty of determining the constitutionality of statutes? Hamburger goes so far as to argue, rather wildly as it seems to me, that because "a common law judge had to decide in accord with the law of the land, he did so with a divine obligation and in imitation of divine judgment, and he thus had to reach far above earthly things in his pursuit of terrestrial law," and therefore "were a human law to restate the duty or to give it human obligation, this law [the Constitution]...might subvert the understanding that judges were responsible to a higher authority." If this is right, it was an insult to state judges to tell them in Article VI that they had to conform to federal law; they knew it already.In any event, the power of judicial review that Hamburger considers implicit in the Constitution is not the power that the federal courts have actually been exercising.

And Posner has this to say about the "judicial modesty" that Hamburger invokes, in light of Heller, which Posner, among others, has been criticizing:

After all, it was the self-proclaimed "modest" judges, in approximately Hamburger's sense -- the apostles of "textualism" and "original meaning" -- who recently gave us the decision in the Heller case invalidating the D.C. gun-control ordinance on the basis of the Second Amendment to the Constitution. A recent article by J. Harvie Wilkinson, a distinguished conservative federal judge, describes Heller, which has cast a dark pall over gun control throughout the entire United States, as the second coming of Roe v. Wade. Whatever Heller stands for, it is not modesty.

Still, Posner states the book adds a great deal to understanding judicial history.   Sounds as if it is a good addition for the libraries of ConLawProfs.


January 15, 2009 in Interpretation, Scholarship | Permalink | Comments (0) | TrackBack (0)

Another Guantanamo Detainee Ordered Released

Judge Richard Leon (D.D.C.) yesterday ordered detainee Mohammed El Gharani released.  This is the second time--both within the last 30 days--that Judge Leon ordered a detainee released for lack of sufficient evidence.  WaPo reports here; Judge Leon's Memorandum Order is here; I posted on Judge Leon's earlier order here.

Gharani's case was before Judge Leon on a habeas petition pursuant to last term's ruling in Boumediene (holding that the privilege of habeas extends to detainees at Guantanamo Bay).

In ruling that the government produced insufficient evidence to continue to detain Gharani, Judge Leon wrote:

The Government's evidence is a mosaic of allegations made up of statements by the petitioner, statements by several of his fellow detainees, and certain classified documents that allegedly establish in greater detail the most likely explanation for, and significance of, petitioner's conduct. . . . 

Much of the government's case consisted of testimony from fellow detainees.  For more, see pages 7 to 11 of the Memorandum Order.

The D.C. District has issued a spate of orders on G-Mo detainees in recent days; check them out here.  I'll post more on them soon.


January 15, 2009 in Executive Authority, Jurisdiction of Federal Courts, News, Separation of Powers, War Powers | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 14, 2009

Same-Sex Marriage Update

Yesterday, a state legislator in Maine introduced a bill that would legalize same-sex marriage in the state.   This is particularly noteworthy because, as the ACLU of Maine notes, while several states have judicially recognized such a right, Maine would be the first state to  pass actual same-sex marriage (not civil union) legislation.   

However, the introduction of the bill is only the beginning of the story for two reasons.  First, opponents of the legislation have mobilized to create a constitutional amendment that will ban same-sex marriage in the state.  Second, under Maine law, any act of the legislature can be repealed through a referendum, so that may be an issue.  However, advocates of the bill state that they have been campaigning even before the bill’s introduction to create  grassroots support.  This may prove critical to its survival if the referendum does take place.

It’s only January, and 2009 is already shaping up to be quite an interesting legal year.  We’ll keep you posted!


January 14, 2009 in Equal Protection, Fundamental Rights, Sexual Orientation | Permalink | Comments (0) | TrackBack (0)

Detainee Qahtani Tortured, says Crawford

Susan Crawford, the administration's official in charge of deciding to bring Guantanamo detainees to trial, said that "[w]e tortured [Mohammed al-]Qahtani," according to Bob Woodward's story in today's WaPo.

Crawford dismissed war crimes charges against Qahtani in May 2008 because of torture-induced evidence and said she would not allow new charges to go forward, even if based on subsequently obtained, clean evidence.

If the evidence won't hold up in the military tribunals, it's hard to imagine how it'll hold up in any criminal prosecution in regular Article III courts.  It looks like the government will have a hard time trying Qahtani.

But on the other hand it can't release Qahtani: He's extremely dangerous, alleged to be the 20th hijacker in the 9/11 attacks. 

Compounding this conundrum is the fact that Qahtani isn't alone; and others present slightly different, but similarly intractable issues.

So what to do?

This will be a big question--and big headache--for the Obama administration.    Obama has said he'll close Guantanamo and has considered prosecuting some detainees in regular Article III courts.  If the evidence won't hold up, though, Obama will be faced with a Hobson's choice (courtesy of the Bush administration): He could assert authority to detain individuals like Qahtani indefinitely--the extreme (even untenable) position of the Bush administration; or he could release individuals like Qahtani (and face the political fallout and security consequences).

We'll stay on top of this and report developments.


January 14, 2009 in Executive Authority, News, War Powers | Permalink | Comments (0) | TrackBack (0)

Tuesday, January 13, 2009

Congressional Research Grants

Congressional Research Awards from the Dirksen Congressional Center - deadline February 1, 2009.

Here's some info adapted from the Dirksen Center website:

The Dirksen Congressional Center invites applications for grants to fund research on congressional leadership and the U.S. Congress.  The Center, named for the late Senate Minority Leader Everett M. Dirksen, is a private, nonpartisan, nonprofit research and educational organization devoted to the study of Congress and its leaders.  Since 1978, the Congressional Research Awards (formerly the Congressional Research Grants) program has paid out $747,465 to support 369 projects. Applications are accepted at any time, but the deadline is February 1 for the annual selections, which are announced in March.  A total of up to $30,000 were available in 2009.

The competition is open to individuals with a serious interest in studying Congress.  Political scientists, historians, biographers, scholars of public administration or American studies, and journalists are among those eligible.  The Center encourages graduate students who have successfully defended their dissertation prospectus to apply and awards a significant portion of the funds for dissertation research.  Applicants must be U.S. citizens who reside in the United States.

Research topics could include external factors shaping the exercise of congressional leadership, institutional conditions affecting it, resources and techniques used by leaders, or the prospects for change or continuity in the patterns of leadership.  In addition, The Center invites proposals about congressional procedures, such as committee operation or mechanisms for institutional change, and Congress and the electoral process. The Center also encourages proposals that link Congress and congressional leadership with the creation, implementation, and oversight of public policy.  Proposals must demonstrate that Congress, not the specific policy, is the central research interest.   The research for which assistance is sought must be original, culminating in new findings or new interpretation, or both.  The awards program was developed to support work intended for publication in some form or for application in a teaching or policy-making setting.  Research produced by previous grant recipients has resulted in books, papers, articles, videotapes, and computer software.


January 13, 2009 in Congressional Authority, News, Scholarship | Permalink | Comments (0) | TrackBack (0)

Inauguration Rhetoric

Like a good constitutional law case, a Presidential Inauguration address avails itself of effective rhetoric.  As we anticipate Obama's speech next Tuesday, there is an urge to take a look at past efforts by US and other world leaders.

NARRATIVE Magazine, available on line here (free registration required), has an interesting piece with some great excerpts.

People have been led to believe that they had to choose between a capitalist wealth-creating society on the one hand and a caring and compassionate society on the other. But that is not the choice. The industrial countries that out-produce and outsell us are precisely those countries with better social services and better pensions than we have. . . . To persuade our people that it is possible, through their own efforts, not only to halt our national decline, but to reverse it [. . .] requires new thinking, tenacity, and a willingness to look at things in a completely different way.


To a crisis of the spirit, we need an answer of the spirit. To find that answer, we need only look within ourselves.


There has been something crude and heartless and unfeeling in our haste to succeed and be great.


Never, never and never again shall it be that this beautiful land will again experience the oppression of one by another and suffer the indignity of being the skunk of the world.


These are excerpts from the inauguration addresses of Margaret Thatcher, Richard Nixon, Woodrow Wilson and Nelson Mandela. For others, including Reagan, JFK, Hebert Hoover  ("bright with hope"), Jefferson, Washington, and Roosevelt, check out the article by Deborah Hughes on the Narrative site.

For more in-depth consideration, the full inaugural addresses of all United States Presidents are available at the Avalon project of Yale Law School here.


January 13, 2009 in Executive Authority, History, News | Permalink | Comments (0) | TrackBack (0)

Monday, January 12, 2009

Working while Gay - Equal Protection Issue

Yesterday, reported an interesting story out of Tennessee.  Apparently, Mr. David Hill was fired by a hotel owner for being homosexual.  Let’s talk about this in four ways.

First, let’s pretend for the moment that the hotel is a state actor so that the Fourteenth Amendment will apply.   Under the Fourteenth Amendment, why should such an action not violate the equal protection clause?  Even if one assumes that rational basis review would apply, how would such an action be justified?   If the only “legitimate” reason offered by the hotelier was a dislike of the homosexual individual (and this seems to be the case), wouldn’t Romer seem to indicate that the decision would not pass even the lowest level of scrutiny? 

Second, the “hypothetical” in the previous paragraph is not so theoretical after all. The Human Rights Campaign reports that in 30 of 50 states, an employer can fire a person based solely on his or her sexual orientation.  (The number rises to 38 out of 50 when the subject is gender identity, as opposed to sexual orientation.)  So, even if Mr. Hill were employed by the state of Florida, the exact same thing could have happened to him.  This is a glaring problem in our national jurisprudence.  Sexual orientation is one of the few places where it remains permissible for an employer to engage in blatant discrimination. 

Third, why should equal protection jurisprudence require a state actor?  Yes, I know that the Fourteenth Amendment uses pesky words like “the state” and all of that, but as our society progresses and corporate entities become more powerful than ever, is it still correct to think that the state is the entity with the most power to cause harm? Yes, the state’s discrimination has the force of law behind it, but perhaps it is time to revisit and revise these provisions. 

Finally, as Pandagon notes, this story could be a good thing as it highlights the need for a law such as ENDA (the Employment Non-Discrimination Act) to be passed swiftly.  ENDA is modeled after Title VII.  Assuming that it relies on the same Commerce Clause foundation, it might be fine.  After all, the Court did cite Heart of Atlanta with approval in Lopez, so a favorable decision would not be shocking. But ENDA would be the first major civil rights legislation in the Lopez/Morrison era, so I would be similarly unsurprised if the Court were to adopt a more restrictive view. 


January 12, 2009 | Permalink | Comments (0) | TrackBack (0)

Heller update

Adam Winkler, ConLawProf at UCLA, posted an update on Heller on The Huffington Post here and it has been making the rounds amongst law students.  Perhaps because I gave a Heller issue on the final exam last semester, a student brought the following to my attention:

To date, the lower federal courts have ruled in over 60 different cases on the constitutionality of a wide variety of gun control laws. There have been suits against laws banning possession of firearms by felons, drug addicts, illegal aliens, and individuals convicted of domestic violence misdemeanors. The courts have ruled on the constitutionality of laws prohibiting particular types of weapons, including sawed-off shotguns and machine guns, and specific weapons attachments. Defendants have challenged laws barring guns in school zones and post offices, and laws outlawing "straw" purchases, the carrying of concealed weapons, possession of an unregistered firearm, and particular types of ammunition. The courts have upheld every one of these laws.

Since Heller, its Gun Control: 60, Individual Right: 0.

Before the Supreme Court's decision, none of the numerous challenges to gun control laws raised in recent months would have had any hope of winning. Now, with a revolutionary ruling recognizing a renewed individual right to keep and bear arms, they still have no hope of winning.

Of course, excellent student examination answers discussed the open questions in Heller, including incorporation against the states.  But for the time being, it is hard to argue with results like 60-0.

RR (with thanks to Natasha Bannan, 1L, CUNY School of Law).

January 12, 2009 in Due Process (Substantive), Fundamental Rights | Permalink | Comments (0) | TrackBack (0)

Burris Cleared (but only with Sec'y of State's Signature)

The Senate cleared Roland Burris this afternoon as a temporary replacement to fill President-Elect Barack Obama's seat.  NYT The Caucus reports here.  This was the constitutional thing to do, but the Senate did it for the wrong constitutional reasons. 

The Senate seated Burris only after Illinois Secretary of State Jesse White finally provided his signature (apparently an auto-pen) and seal.  (As we could have predicted--as we did predict!--this was unnecessary to validate the governor's appointment under Illinois law.  The Illinois Supreme Court so ruled on Friday.)

As I've posted before--most recently here--it's not at all clear to me how this Senate rule trumps the plain language of the Seventeenth Amendment and Illinois state law.  Blagojevich appointed Burris properly under the Seventeenth Amendment and Illinois state law.  There was no indication of wrong-doing or corruption in this appointment, and Burris was clearly "qualified."  The Senate's rule must yield to the Seventeenth Amendment and the limitations on the Senate's ability to judge elections, returns, and qualifications. 

The Senate should have seated Burris with Blagojevich's appointment.  Period.

Well, it's done now.  And apparently without the provisional status that was floating around--a seat without prejudice--presumably so that the Senate could continue to investigate his "election" and "return," even if it lacked authority to un-seat him on these grounds.  (See my previous post.)  That's good news, but for the wrong reason.


January 12, 2009 in Congressional Authority, News | Permalink | Comments (0) | TrackBack (0)

Voting Rights at the Roberts Court

Linda Greenhouse published this op-ed piece last week (1/9) in the NYT on Northwest Austin Municipal Utility District v. Mukasey, the case challenging Congress's reauthorization of the Voting Rights Act preclearance procedure now headed for the Supreme Court.  (For more on the case, see Oyez's report On the Docket, the Harvard Law Review summary, and the Election Law @ Moritz collection of documents.  Here's the three-judge district court decision (thanks to Election Law @ Moritz for the link); here's the reauthorization act

Greenhouse argues that this case is "a potentially defining moment" for Chief Justice Roberts.  To say why, she briefly traces the politics of reauthorization of the VRA and the trends on the Court with regard to race-based actions and Congressional authority:

Many Republicans, most notably some Southern senators, thought [reauthorization was inappropriate]. But they allowed the extension to pass on the assumption that the Supreme Court would eventually answer the question, relieving them of the political cost of dismantling an iconic statute. Days after the extension became law, the anticipated legal challenge was filed by a well-connected Texas Republican lawyer representing what is surely one of the most obscure jurisdictions to be covered by Section 5, a sewer district that serves 3,500 residents of Travis County, Tex.

The Republicans understood recent trends at the court to be working in their favor, and they may be right. The case serves up to the court a fascinating brew of two of the most freighted issues in constitutional law, race and federalism — or, to put it another way, individual rights and constitutional structure. . . .

While previously Congress could do almost anything in the name of protecting individual rights, the new doctrine requires it to demonstrate a “congruence and proportionality” between violation and remedy. The appeal now before the court argues that the extension fails that test, given “the utter absence of any present-day pattern of unconstitutional voting-rights deprivations of the type Section 5 was originally designed to address.” The measure’s defenders argue in response that because the law serves to deter just such violations, the Texas sewer district is trying to blame Section 5 for its own success.

And to make things even more interesting, Greenhouse reminds us that Roberts penned legal memos in the Reagan administration arguing against extension of the VRA in 1982.  At his confirmation hearings, Roberts said he was just representing his client's position.

Greenhouse's analysis hits it on the nose.  This case comes at the crossroads of the Court's jurisprudence on race-based remedies and its jurisprudence on Congressional authority--both of which have tightened substantantially in recent years--and against the backdrop of Roberts's memos.

But on the other hand Section 5 is, as Greenhouse writes, "iconic"; its dismantling would be significant (to say the least).  And I'd add that the Court's jurisprudential momentum could also run up against its now-almost-insurmountable hurdle for facial challenges.  (The district court quite properly ruled that the plaintiff's constitutional challenge is facial.)

This piece--and, of course, the case itself--will nicely complement materials on Congressional authority under the Reconstruction Amendments for your structure students.  We'll post more when more happens.


January 12, 2009 in Congressional Authority, Fifteenth Amendment, Fourteenth Amendment, News, Recent Cases, Reconstruction Era Amendments | Permalink | Comments (0) | TrackBack (0)

Sunday, January 11, 2009

The Sunday Reader: (Obama's OLC Pick) Johnsen on the Post-Bush Constitution

Professor Dawn Johnsen (Indiana U. and President-Elect Obama's pick to head the Office of Legal Counsel) posted her characteristically excellent piece What's a President to Do? Interpreting the Constitution in the Wake of Bush Administration Abuses on ssrn; it's also in the Boston U. L. Rev.  This is a thoughtful article on how the new chief executive should respond to constitutional overreaching by the present administration.  (For a related piece, see Johnsen's American Constitution Society Issue Brief on the topic.)  Johnsen's answer is balanced, well considered, and appropriately restrained; the piece reminds us--if there were any doubt--why she's Obama's choice to lead the OLC.  This is an excellent read in its own right; it's an outright must-read considering Johnsen's role on the Obama team.

Johnsen argues that the Bush administration excesses ought not drive us to fundamentally change our understanding of executive authority--despite what may be a very strong impulse to do so.  Instead we should look to safeguards and checks both within and outside the executive branch to avoid future constitutional abuses, while nevertheless protecting the legitimate authority of the executive branch.

Johnsen starts by reviewing some of the more widely examined Bush administration excesses and reactions to those excesses in order to illustrate both problems: the administration's constitutional overreaching; and opponents' reactions that, in their (understandable) tenacity, themselves go too far and impinge upon legitimate executive authority.

She offers several examples; here's a particularly good one, if only because it seems so typical in today's debates:

The risk of such conflation can be seen, for example, in a December 2007 remark by Senator Sheldon Whitehouse.  Whitehouse attacked the Bush administration for asserting the position that "[t]he President, exercising his constitutional authority under Article II, can determine whether an action is a lawful exercise of the President's authority under Article II."  Senator Whitehouse has earned commendation for his forceful and able critiques of the Bush administration abuses.  Here, too, his concern is warranted, but he seems to misplace his objections.  Presidents not only can, but they must determine whether their actions are lawful (subject of course, to appropriate judicial review).  Moreover, in many circumstances, Presidents may develop, declare, and act upon distinctive, principled constitutional views that do not track those of the Supreme Court or Congress.  The problem lies not with the fact that President Bush, with the help of his lawyers, assessed the scope of his constitutional authority before acting, but with the flawed content of his legal detemrinations and the ways in which he secretly acted upon them.  . . .

Johnsen goes on to argue that the Bush administration is itself largely responsible for such "misplaced" attacks because of its excessive secrecy.

Johnsen then explores the President's interpretive authority and nonenforcement authority and places both in historical context.  She argues that the President ought to have interpretive authority: "The better question, therefore, is not whether, but how the President should participate in the determination of constitutional meaning."  And she argues for a "strong, but not irrebutable presumption" in favor of enforcing even those statutes that the executive objects to on constitutional grounds: "I conclude that the Constitution is best interpreted as creating a strong but not irrebutable presumption in favor of enforcement of constitutionally objectionable statutes."  And if you're looking for specifics on positions of Obama's OLC pick, look here: "The Bush administration's 'unitary executive' and Commander-in-Chief theories, in my view, are clearly wrong and threaten both the constitutionally prescribed balance of powers and individual rights."  (This selection gives us more insight into Obama's positions on these issues; see my previous post here.)

Johnson wraps up by arguing for executive checks (presumably including the OLC) and extra-executive checks on Article II powers, but also for defending legitimate Article II powers.  She offers no specifics on these points outside of outlining her position in contradistinction to Bush administration practices.  But that is certainly enough for now: The new administration will have its hands full simply undoing the Bush administration abuses. 

Johnsen's article reminds me once again how thoughtful she is on executive power and the OLC's role.  Read it as good scholarship; read it as thoughtful critique; or read it as a roadmap for the OLC in the Obama administration.  Whatever your interest: Just read it.


January 11, 2009 in Executive Authority, Executive Privilege, News, Scholarship, Separation of Powers, War Powers | Permalink | Comments (0) | TrackBack (0)

Three Thoughts on Prosecution of Administration Officials

The NYT ran op-eds today opining on whether Bush administration officials should be prosecuted for authorizing certain acts in the war on terror.

Charles Fried (Harvard) argues no; Dahlia Lithwick (Slate) argues yes; Jack Balkin (Yale and Balkinization) argues a middle position--"seeking the truth."

This debate comes in the wake of the Senate Armed Services Committee report concluding that high ranking officials authorized torture in violation of U.S. law.  (I previously posted on this here.)  Link to the summary and conclusions here.

The Bush administration response--well known by now--is that any statutory restrictions on its actions were themselves unconstitutional (as impinging its inherent Article II powers); the administration maintains that its actions were consistent with the Constitution.  And in any event, Congress immunized officials from prosecution for most of these acts; the OLC ruled that others were legal.   


January 11, 2009 in Executive Authority, News, War Powers | Permalink | Comments (0) | TrackBack (0)

Cass Sunstein Post in Obama Administration

As The Chicago Tribune reported here, Obama is expected to name Cass Sunstein to head the Office of Information and Regulatory Affairs.  The Chicago Tribune story continues:

Sunstein brings a measure of star power to the post, as a leading constitutional scholar and the Felix Frankfurter professor of law at Harvard. He joined the Harvard faculty this year after many years at the University of Chicago, where he is still a visiting professor. He and Obama taught there.

Along with economist Richard Thaler, Sunstein is co-author of "Nudge: Improving Decisions about Health, Wealth, and Happiness." It examines how setting up thoughtful "choice architecture" can encourage people to make beneficial choices without restricting their freedom to choose.

One of the better posts I've seen on the subject is by Ezra Klein at The American Prospect blog here.  Klein has a nice discussion of the Office of Information and Regulatory Affairs, including its history,  arguing that " OIRA is important! It's just also boring."  He concludes:

Sunstein can do real good there [at OIRA].  But why would he want it? He's shown a taste for celebrity, and OIRA very much does not provide that.

It's worth remembering that Sunstein has recently achieved great fame for Nudge, a book which basically argues that we need to apply the insights of behavioral economics to the construction of regulation. And Director of the Office of Information and Regulatory Affairs is the ultimate staging ground for those ideas. Reagan understood that OIRA was the central clearinghouse where you could affect the whole of the regulatory state all at once. He wanted to virtually shut it down. Sunstein wants to "nudge" it.


January 11, 2009 in News, Profiles in Con Law Teaching | Permalink | Comments (0) | TrackBack (0)