February 7, 2009
Don't Ask, Don't Tell (Lesbians & Other Women): Saturday Evening Review
While we wait for Obama's promised action regarding the Military's "don't ask, don't tell" policy, previously blogged here, it seems a good time to take yet another look at the legal scholarship on the issue. There is quite a bit, most of it criticizing "don't ask, don't tell," but most of the articles focus on litigation strategies and implicitly center on white gay men.
A forthcoming article, Let the Small Changes Begin: President Obama, Executive Power, and Don’t Ask Don’t Tell, by Jackie Gardina of Vermont Law School and available on ssrn here, argues that Obama should act unilaterally to change how the Department of Defense (DoD) implements "don't ask, don't tell." Gardina acknowledges her position is "controversial" - - - "Conventional wisdom holds that to avoid the mistakes of the Clinton Administration, President Obama must not push Congress or the military too quickly." Nevertheless, she insists that Obama "should not wait for Congress to act. He has both the constitutional and statutory authority to implement change immediately," and he should do so.
In 2006: women made up 17 percent of the Army but 35 percent of discharges under the “don’t ask” law;
In 2007: women made up 15 percent of Army members, but 45 percent of the discharges under that law;
In 2007: women made up 20 percent of Air Force members, but 49 percent of the discharges for homosexuality, up from 36 percent in 2006.
Further, as Feminist Law Professor blog also notes, the policy disproportionately impacts African-American women; the useful discussion and link is to brief online piece, Black Women Disproportionately Impacted by Don’t Ask Don’t Tell, by Jeanne Scheper, available here.
The disproportionate impact on women has long been known. One of the earliest articles I recall is Military Women In Nontraditional Fields: Casualties Of The Armed Forces' War On Homosexuals, by
Michelle M. Benecke and Kirstin S. Dodge,13 Harv. Women's L.J. 215 (1990). Returning to this article almost two decades later, it is rather amazing how much has not changed. Although the Article predates "don't ask, don't tell," and begins by stating that " Women's involvement in the December 1989 United States military invasion of Panama has focused renewed attention on the acceptance and integration of women in the U.S. armed forces," its conclusion that the confluence of sexism and homophobia remain a threat for women in the military seems as true as ever. "Lesbian-baiting," enforced "hyper-femininity," and "sexual accessibility," are not terms that have been relegated to the past.
It may be too early to start thinking about writing exams, but a hypothetical combining Executive Authority and Equal Protection with multiple classifications (race, gender, sexuality) and military deference already seems attractive. Perhaps by exam time, Obama will have issued an Executive Order that could be an issue. Or perhaps an earlier in-class exercise advising Obama. And for those professors who include legislation in their classes, some exciting policy work might be done in conjunction with SALT's legislative lobbying day, set for March 13, information here.
February 6, 2009
It's baaaaack . . . . The Teaching Assistant!
After a brief break, the Teaching Assistant is back! This week, we feature stories from a variety of Con Law fields.
Executive Branch/Foreign Policy
New CIA chief Leon Pannetta states that "harsh renditions" of terror suspects remains a possibility. He also said that while waterboarding is torture, those that engaged in the practice should not be prosecuted.
Findlaw has an interesting piece on why Karl Rove might not be able to avoid disclosing his role in the U.S. Attorney scandal.
Rep. Tammy Baldwin (D-WI) encourages the State Department to end practices which discriminate against the LGBT employees in that Department.
The ACLU reminds us that while the Ledbetter legislation was a step in the right direction, the fight to ensure equal pay for men and women in the workplace is far from over.
Eugene Volokh has a great post dissecting a recent Ninth Circuit opinion ruling that the 1996 DOMA legislation is unconstitutional as applied to federal employees. (Don't get too excited - it's a limited, non-precedential ruling, but as Professor Volokh says, it could shed light on how the circuit might resolve future issues.)
Finally, in a triple-whammy of equal protection issues, Stephanie Farrior of Feminist Law Professors analyzes a new law review article on the military's "Don't Ask, Don't Tell" policy. She first explains the detrimental effects of the policy on GLBT servicepersons. She futher notes that women - and particularly women of color - are more likely to be penalized under the current rules.
See you next week with more stories that will help you in the classroom!
February 5, 2009
Equal Protection in Faith-Based Executive Order
Today, Obama signed Amendments to Executive Order 13199 and Establishment of the President's Advisory Council for Faith-Based and Neighborhood Partnerships. The Washington Post has a video of the announcement and some of the appointments to the new Council here.
This new subsection of the EO is especially noteworthy:
to ensure that services paid for with Federal Government funds are provided in a manner consistent with fundamental constitutional commitments guaranteeing the equal protection of the laws and the free exercise of religion and prohibiting laws respecting an establishment of religion;
Of course the contours of "equal protection," especially as it is seen to conflict with the First Amendment's "free exercise clause," remain to be worked out.
Art and Justice?
As the United States Congress contemplates whether arts funding is suitable for economic stimulus legislation, see stories here and here, Justice Albie Sachs of the South African Constitutional Court is in the United States with a beautiful book project of which he is a part, ART AND JUSTICE. He has just given a talk and a luncheon conversation at CUNY School of Law today.
Albie Sachs will be at the NYC Bar on February 12, registration information here.
The book , Art and Justice: The Art of the Constitutional Court of South Africa, is designed by Ellen Papciak-Rose and features photography by Ben Law-Viljoen. As described by the publisher, the book "celebrates and documents the artworks integrated into and collected for the Constitutional Court of South Africa" in an attempt to "bring together, in the most inspiring, innovative and dignified way possible, art and the workings of justice, and to give a public soul to the new Court building."
The building and art work of the South African Constitutional Court is truly amazing. I suggest you see it the next time you are in Johannesburg. Or you can take a virtual tour of both the building and the art collection on the court's website here.
Justice Ruth Bader Ginsberg
As readers will no doubt have heard by now, today Justice Ginsberg had surgery for a recently discovered pancreatic cancer. We wish her the best and a speedy recovery.
February 4, 2009
Justice Scalia scolds (undergraduate) student
The Orlando Sun-Sentinel reports that Justice Scalia, appearing in Palm Beach County, Florida, was less than overjoyed at being challenged:
Student Sarah Jeck stood in front of 750 people and asked Scalia why cameras are not allowed in the U.S. Supreme Court even though the court hearings are open, transcripts are available and the court's justices are open enough to go "out on book tours." Scalia was at the Kravis Center for the Performing Arts in part to do a book signing and wasn't happy at the question.
"Read the next question," Scalia replied. "That's a nasty, impolite question."
And from BLT:
This morning we tracked down student Sarah Jeck, the Florida Atlantic University honors college junior who incurred Scalia's wrath, and she seemed a little stunned, but not cowed, by his reaction.
"He can dish it out, but he can't take it, I guess," she says.
"I'm generally a very polite person. I'm really surprised the way it turned out. It was not a preposterous question."
Holder on Inherent Presidential Authority
AG Eric Holder in his Senate confirmation materials endorsed a slightly more modest form of inherent presidential authority--and somewhat greater transparency when asserting that authority--than we've seen from the Bush administration. Holder also distinguished Bush administration practices from similar Clinton administration practices based upon claims of inherent executive authority.
Holder most clearly set out his positions in his Q&A with Senator Specter. In the first round (starting on page 18) Specter introduced the topic by asking Holder whether he agreed with Walter Dellinger's famous 1994 memo, which concluded that the President has authority to ignore a statute that unconstitutionally impinges or limits the President's Article II powers. Holder was quick to say that the President's power is at its lowest ebb (referring to Justice Jackson's framework in Youngstown) but that he nevertheless agreed with Dellinger's conclusions:
[T]he President's power is at its lowest ebb when he acts contrary to a statute duly enacted by Congress, but the Constitution is the supreme law of the land. There are circumstances where a President can refuse to comply with a statutory provision. These include a legislative veto, see INS v. Chadha, or a statute purporting to limit the President's removal power in certain circumstances, see Myers v. United States. Moreover, although as far as I know the Supreme Court has never ruled on the issue, I believe that a statute designating the Secretary of Defense (or another subordinate official in the Executive Branch) as the Commander in Chief would also be unconstitutional.
These are the easy cases, of course; harder are those cases without clear Supreme Court guidance. We therefore learn little from Holder's examples. But Holder's first sentence--that the President's authority is at its lowest ebb--is a telling move away from the sweeping claims of the Bush administration, from which we rarely and only grudgingly heard anything suggesting that the President's authority might have a low ebb. (Recall OLC's 2002 "torture memo" outlining broad inherent executive authority and famously neglecting even to mention Youngstown. That memo was later rescinded, but the rescission said nothing about the earlier claims of inherent executive authority.)
Holder was clear in his statement that the President lacks inherent executive authority to ignore a statute like FISA. Holder said that the early, pre-Protect America Act Bush administration surveillance program directly violated FISA, whereas the Clinton administration surveillance program (also based upon claims of inherent executive authority) was conducted in the absence of legislation. The former was not within the President's authority; the latter was. Holder:
Consistent with Judicial precedents, I do believe the President has authority, in the absence of a conflicting statute like FISA, to conduct warrantless foreign intelligence surveillance under certain conditions. As the Second Circuit explained in United States v. Duggan, "virtually every court that had addressed the issue had concluded that the President had the inherent power to collect foreign intelligence information, and that such surveillance constituted an exception to the warrant requirement of the Fourth Amendment." . . .
There is a critical difference between the President's authority to take certain actions in the absence of a statute, and his authority to take the same action in violation of a statute.
(Emphasis added.) And later he refused to fully endorse a 2000 opinion letter on Presidential authority to share Title III electronic surveillance material with the intelligence community. That letter included this language:
Where the President's authority concerning national security or foreign relations is in tension with a statutory rather than a constitutional rule, the statute cannot displace the President's constitutional authority and should be read to be "subject to an implied exception in deference to such presidential powers." Rainbow Navigation, Inc. v. Department of the Navy (D.C. Cir. 1986) (Scalia, J.).
I do agree that a statute cannot impermissibly infringe the President's constitutional powers, including his authorities in the areas of national security and foreign relations. Statutes that attempt to restrict the President's ability to share critical national security information with his own intelligence agencies in extraordinary circumstances pose special concerns. At the same time, the President's powers are, as Justice Jackson explained, at their lowest ebb when he acts in a manner that conflicts with a congressional enactment.
On signing statements that announce the President's intention not to enforce a statutory provision, Holder said these should be "rare and a last resort." Holder:
Whenever the President determines that a statutory provision is unconstitutional, he should convey that determination to Congress in some manner. Transparency is imperative. The executive should work with the Congress well before bills reach the President's desk to resolve constitutional concerns. . . . When the President determines that an existing statutory provision is unconstitutional, he should work with Congress to enact any necessary legislative changes.
This is a dramatic change from Bush's frequent, vague, and cryptic signing statements.
Finally, in round 2 with Specter, Holder said that torture, including waterboarding, is not authorized under inherent Article II powers:
Torture is prohibited by statute, and the President's power is at its lowest ebb when he acts contrary to a statute. I cannot improve upon the answer given by then-Senator Obama, when asked by the Boston Globe whether the President has authority to instruct his subordinates to employ an interrogation technique that is prohibited by statute: "No. The President is not above the law, and not entitled to use techniques that Congress has specifically banned as torture. We must send a message to the world that America is a nation of laws, and a nation that stands against torture. As President I will abide by statutory prohibitions for all US Government personnel and contractors."
Holder's full Questions for the Record are here.
February 3, 2009
Holder Signals Greater Openness with OLC, State Secrets
AG Eric Holder--confirmed 75 to 21 last night and sworn in today--wrote that he would review "significant pending cases" in which the government asserted a state secrets privilege and that he would seek to minimize the use of that privilege, reports the Federation of American Scientists. (Many thanks to Con Law Prof blogger Ruthann Robson for the tip.) Holder also said he would review OLC policies on releasing its opinions and that he favored "making its opinions available to the maximum extent consistent with sound practice and competing concerns." I most recently posted on the secret OLC memos, and ProPublica's catalog of them, here.
Proposition 8 in California Supreme Court
The Supreme Court has announced that an oral argument will be held in the Prop. 8 cases on Thursday, March 5, 2009, from 9:00 a.m. to 12:00 p.m. The court will issue a written opinion in the cases within 90 days of oral argument. To increase public access to the court session, the Supreme Court has designated the California Channel, a public affairs cable network, to provide a live TV broadcast of the session.
News release here. The California Supreme Court also has links to the briefs.
So, we can expect a decision by June 5 or so.
Australia's High Court - transition
In Australia, Justices on the nation's highest court - - - the High Court - - - face mandatory retirement at age 70. In the past few days, Justice Michael Kirby, seemingly the first gay man on a nation's highest court, retired to be replaced by Virginia Bell, who is only (!) the fourth woman to sit on Australia's High Court. As the the Sydney Herald asserts:
She is just the fourth woman to sit on the High Court bench, and joins two others currently serving, Justice Susan Crennan, who was appointed in 2005, and Justice Susan Kiefel, who was appointed in 2007.
That means that three of the seven justices on the Australia High Court are women. The Sydney Herald story continues:
But more has been made of her social justice credentials and comparisons with Mr Kirby, than the fact women could soon dominate the highest bench in the land.
As for Bell's "social justice credentials," she began "at the newly-established Redfern Legal Centre, where she later worked on landmark civil liberties cases and helped establish a prisoners' legal service," and after becoming a barrister, was appointed a public defender two years later. Much has been made of her criminal law experience, something lacking in recent appointments to the Australia High Court.
February 2, 2009
LA Times: Put FISA Ruling in Perspective
The LA Times ran an editorial today arguing that Bush administration defenders' jubilation over last week's FISA court ruling is unjustified. That decision upheld the Congressionally authorized surveillance program under the Protect America Act of 2007. I posted on this a couple weeks ago here; the link is also in the LAT editorial.
The LAT is right. As I wrote, FISA ruling was limited to the Congressionally authorized program; it said nothing about the President's inherent Article II power to authorize the secret surveillance program. Bush administration supporters who praise this opinion as a vindication of Bush's sweeping claims of inherent Article II powers simply misread the opinion. The LAT:
The appeals court decision upheld an act of Congress, not Bush's original program. The law now on the books provides for greater accountability than the original program. In concluding that the surveillance at issue wasn't unreasonable, the court confined its analysis to the "defined context" of a particular case.
Finally, those who would see this decision as a sweeping endorsement of Bush's view of unchecked presidential power should ponder the penultimate paragraph of Chief Judge Bruce M. Selya's opinion. Selya writes that he and his colleagues "caution that our decision does not constitute an endorsement of broad-based, indiscriminate executive power. Rather, our decision recognizes that when the government has instituted several layers of serviceable safeguards to protect individuals against unwarranted harms and to minimize incidental intrusions, its efforts to protect national security should not be frustrated by the courts. This is such a case."
District of Columbia Voting Rights again . . .
Last week, I wrote about the pending legislation that would give residents of the District of Columbia a vote in the House of Representatives. While I focused on the potential arguments in support of such a law to the exclusion of the textual issues, others examined the language and textual arguments. Brian Kalt of Concurring Opinions wrote a piece arguing that the text of the Constitution clearly limits Congressional represenation to "the several states," and therefore the District can gain that right only through a Constitutional amendment. He therefore concludes that legislators cannot pass the bill with a "clear conscience." Professor Richard Hasen provides a similar argument over at Slate.com, but argues that Congress should pass the law despite any constitutional infirmities, as such an act will move the issue to the front of the queue and create the momentum that will result in a sucessful constitutional amendment.
Let's assume for the moment that the proposed legislation is indeed in violation of Article I, Section 2 of the Constitution. Even if that is true, I'm not entirely convinced that this means the game is over. Even if that portion of the constitution might be violated, doesn't the refusal to grant voting rights to those in D.C. (even if constituionally mandated) violate the equal protection guarantees secured to those residents by the Fifth Amendment's Due Process Clause? The question here, it seems, is what should happen when two Constitutional provisions are in conflict. Why should Article I receive any more weight than the Fifth Amendment?
This is an interesting conflict. Certainly, Marbury tells us what the Court should do when an act of Congress or the Executive conflicts with the Constitution, but what about when the Constitution arguably conflicts with itself? Wouldn't any decision by the Court in such an instance necessarily amount to an amendment of the Constitution sub silentio on that point? Do we want the Court to engage in such behavior? Whether we like such conduct or not, in reality, each time the Court interprets the Constitution, it amends its meaning ever so slightly. Plessy v. Ferguson rendered the Equal Protection Clause of the 14th Amendment a nullity for nearly ninety years. At the other end of the spectrum, Griswold and Roe completely rewrote the document by recognizing a new "penumbra" of rights. These examples show that the Court's interpretations can amount to amendment.
In light of the foregoing, what would prevent the Court from adopting an approach that limits the meaning of Article I? If the D.C. bill is passed, depending upon the method of Constitutional interpretation employed, it is plausible that the Court could look at the issue and determine that Article I is dispositive. However, depending upon the method of Constitutional interpretation employed, it is plausible that a Court could find that the equal protection concerns outweigh rigid fidelity to the text of Article I. It's even more plausible that the Court could (as it often does) feign rigid fidelity to the principles of textualism, and then declare that the word "State" - for whatever reason - does not mean what we think it means. Indeed, why couldn't the Court determine that since the principle of equal protection was not incorporated into the document at the time of its drafting, but came nearly 100 years later, there must be a reading of the Constitution that gives some effect to both clauses?
In sum, the House should proceed to pass the legislation if it is so inclined. In my opinion, they needn't fear, as Professor Kalt suggests, that they are somehow behaving unethically by deliberately passing unconstitutional legislation. Rather, they are confronted with a clear conflict in the Constitution. When presented with a fork in the road, neither path is wrong. It's simply a choice of where you'd like to be at the end of your journey.
How Far Left Will an Obama Appointment Push the Court?
Adam Liptak asked the question in yesterday's NYT. Liptak:
Should [Obama] appoint someone who by historical standards is a full-throated liberal, a lion like Justice William J. Brennan, Jr., or Justice Thurgood Marshall? Or should he follow the lead of President Bill Clinton, whose two appointees, Justice Ginsburg and Justice Stephen G. Breyer, are by those standards relative moderates?
The Landes-Posner piece referenced in the article, Rational Judicial Behavior: A Statistical Study, is here.
February 1, 2009
Knowles on American Hegemony and the Foreign Affairs Constitution
Rob Knowles (NYU Law) just posted American Hegemony and the Foreign Affairs Constitution on ssrn; the piece is also forthcoming in the Arizona State Law Journal. This is a thoughtful article, coupling international relations theory with constitutional law and arguing for a more robust judicial role in American foreign affairs. I highly recommend it.
Knowles's basic argument is that America's role in the world has changed in the post-Cold War world, but that U.S. constitutional law--and particularly judicial deference to the President in foreign affairs--has not caught up. More particularly: We've moved from a realist world, where judicial deference made a little sense, to a hegemonic world, where it doesn't.
Knowles first shows how judicial deference is based upon functional justifications that map onto a realist understanding of the world order. In other words, realism provides the basis for the functional justifications of judicial deference in foreign affairs. United States v. Curtiss-Wright is the pivotal (and paradigmatic) case. Knowles:
A lay version of realism became incorporated into constitutional foreign relations law largely through the landmark 1936 decision, Curtiss-Wright. This completed the transformation to an executive-centered understanding of the foreign affairs Constitution driven by America's acquisition of an empire and rise to great power status.
But Knowles argues that this mapping, and the resulting judicial deference, created more problems than it solved. Again, Knowles:
First, this classic realist model does not accurately depict the actual functioning of the branches in foreign affairs. For example, although foreign relations is said to require that the United States "speak with one voice," Congress and the President often conflict on foreign policy. Second, as a descriptive matter, the realist model encounters boundary problems because globalization will continue to blur the distinction between domestic and foreign affairs issues. Third, as a normative matter, the realist model, if accepted in full, would require total deference: it tells us very little about how best to balance foreign policy needs against other constitutional values.
The realist roots of judicial deference are therefore problematic. But worse: We no longer live in a world based on realism. Knowles argues that our post-Cold War world is better understood in hegemonic terms, where the U.S. is the hegemon, notwithstanding threats from "transnational terrorist groups . . . rogue states, and the proliferation of WMDs . . . ." In this hegemonic world, judicial deference no longer stands on its realism-based functionalist justifications; instead, the hegemonic world order gives rise to different functionalist justifications that weigh in favor of judicial scrutiny. Knowles:
The hegemonic model aligns the assessment of institutional competences more closely with the positive reality of the international system. It brings more coherence to the courts' treatment of foreign affairs by largely "domesticating" it. And the hegemonic model reveals additional functional justifications for greater judicial involvement in foreign affairs controversies.
Knowles's point is normative, of course; but it is also descriptive. For example, Knowles argues that this "greater judicial involvement" is reflected in the Court's post-9/11 enemy combatant cases.
Knowles's nearly 70-page article is more detailed, nuanced, and complex than my brief summary; this makes it all the more engaging. For example, he paints an expansive landscape of IR theory--plenty sufficient to provide a solid grounding for his argument, and more to provide his readers a broad theoretical perspective. Similarly his analysis of the current world order is thorough and insightful. Both of these sections are rich enough to read as ends in themselves, let alone for their places in his larger argument.
But what I appreciate most about Knowles's piece is his careful tracing of constitutional doctrine to its underlying assumptions within IR theory. This is the backbone of the piece, and it's where Knowles is at his strongest and most creative.
If Knowles is right--and he presents a very persuasive case--his piece is further evidence that we in the law are always a couple decades behind whatever other discipline we decide to embrace. And if he's right, his article could be an important step in getting us caught up.
I highly recommend this very thoughtful piece.