January 9, 2010
Environmental and Constitutional Law Conference at Georgetown
Constitutional Law as the "crucible" for environmental law and policy: Conference at Georgetown, more information here, flyer below.
January 8, 2010
More on the Constitutionality of Health Care Reform
Simon Lazarus, Public Policy Counsel to the National Senior Law Center, published an Issue Brief with the American Constitution Society last month taking on the various claims that a health insurance mandate (in the Senate version of health care reform) and tax incentives encouraging the purchase of health insurance (in the House version) are unconstitutional. We've covered the issue here, here, and here.
Here's Lazarus on the claim that requiring health insurance amounts to regulating non-activity--one of the more popular arguments that health care reform exceeds Congress's Commerce Clause powers:
This "inactivity" is empty and verbal gimmickry. Individuals who go without health insurance--if health insurance is available to them and affordable, a contingency that the legislation goes to great lengths to eliminate--are not "doing nothing." They are deciding to put off paying for health insurance and for health care--because they believe that they won't need it until some future date, or because they recognize that, one way or the other, through hospital emergency room care or other means, necessary care will be available if serious illness or an accident strikes.
Brief at 8-9.
Lazarus concludes by putting the issue in a larger context:
If, as opponents claim, the burden of mandatory health contributions was--in principle--oppressive and unfair, Medicare, and for that matter Social Security taxes would raise constitutional questions no less if these landmark statutory programs were cast as regulations of interstate commerce. In fact, of course, since 1937, such questions have never been raised either in the courts or in Congress. The reason is simple: most people regard these mandatory contributions--in light of what they expect to receive in exchange--as a bargain not a burden.
Brief at 15 (emphasis in original).
January 7, 2010
Federalist Society Debates Civilian Trial for KSM
The Federalist Society is hosting an on-line debate on the legal and policy implications of the administration's decision to try Khalid Sheikh Mohammed and others in regular Article III courts, while trying some Guantanamo detainees in military commissions.
The debate so far explores the applicability of Ex Parte Milligan (holding that a military commission organized in the late Civil War, in a state not invaded or engaged in rebellion, had no jurisdiction to try and convict a civilian U.S. citizen when the regular federal courts were open and available) Ex Parte Quirin (holding that a military commission had jurisdiction to try German and U.S. citizens disguised as civilians and intending to commit hostile acts within the United States) and the proper interpretation of Hamdi v. Rumsfeld (affirming Quirin's holding and holding that a U.S. citizens held within the United States as an "enemy combatant" enjoys some measure of process to challenge his detention) and Hamdan v. Rumsfeld (affirming Quirin's holding and holding that military commissions must conform to requirements of the Uniform Code of Military Justice and Common Article III of the Geneva Conventions).
Supreme Court Database
Lee Epstein's presentation this morning on the panel "American Constitutional Law and the New Supreme Court" at the AALS Annual Meeting in New Orleans highlighted the Supreme Court Database, now available online. The database has an excellent tutorial which enhances the goal of accessibility (especially for those of us who may not have been stellar in that long-ago statistics course).
According to its own description, the database "contains over two hundred pieces of information about each case decided by the Court between the 1953 and 2008 terms. Examples include the identity of the court whose decision the Supreme Court reviewed, the parties to the suit, the legal provisions considered in the case, and the votes of the Justices."
During her presentation, Northwestern University School of Law Professor Lee Epstein used the database to empirically test some oft-voiced propositions, such as Justice Kennedy being a judicial supremacist or Justice Alito's replacement of Justice O'Connor being a negative consequence for criminal defendants. By doing several different types of data analysis, Epstein was able to provide the empirical interpretation of the propositions.
While it certainly does not substitute for a close reading of opinions (and of course, is not intended to do so), the Supreme Court Database is a great addition to scholarship and teaching. And much easier to tailor to one's own interests than the (still essential) Supreme Court Compendium and much easier to use than the previous software.
January 6, 2010
Second Amendment Symposium at Santa Clara Law School
"Bearing Arms: Policy, Policing, and Incorporation After Heller" is the title of a Symposium sponsored by Santa Clara Law Review, to be held at the law school January 22. Registration and more information here.
Habeas at Bagram, Round 2
The D.C. Circuit will hear oral arguments tomorrow in Al-Maqaleh v. Gates, the case testing whether habeas corpus, established for detainees at Guantanamo Bay in Boumediene v. Bush, extends to detainees at Bagram Airfield in Afghanistan. We analyzed the lower court decision (ruling that habeas extends to Bagram under Boumediene) here, the Obama administration's position here, and the Pentagon's efforts at Bagram here. Lyle Denniston at SCOTUSblog provides analysis here.
Whichever way the case goes at the D.C. Circuit, it is almost certainly headed for the Supreme Court.
Just one wrinkle: Late last month, the Defense Department notified the court that it demolished its detention facility at Bagram and built a new facility with the intent of transferring detention responsibilities to the Afghan government as soon as practicable. DoD apparently has not yet transferred detention responsibilities to the Afghanis, but when it does it may moot the case.
Agencies Fail to Submit New Rules to Congress, GAO
The Congressional Research Service issued a report last week that concluded that agencies failed between 1999 and 2009 to submit over a thousand new substantive final rules to Congress and the Government Accountability Office ("GAO") as required by the Congressional Review Act ("CRA"), 5 U.S.C. Secs. 801 to 808, despite repeated requests by the GAO to the Office of Information and Regulatory Affairs ("OIRA"). OMB Watch reports here.
OIRA directed agencies in November 2009 to contact GAO to update their submissions. Some have done so. But final rules not in compliance with the CRA reporting requirements may be invalid.
The CRA was enacted in 1996 as a measure to allow Congress to assert authority over administrative agencies: It requires agencies to report to Congress on certain final rules, and it allows Congress to pass a "resolution of disapproval" of any covered rule. If passed by both houses and signed by the President, the resolution would overturn any agency rule. (The Supreme Court, of course, foreclosed stronger congressional authority over agencies (in the form of a congressional veto) thirteen years earlier in INS v. Chadha.) In truth, the CRA does very little: Agencies already report their rule-making through the Federal Register, and Congress could already undo agency rules through ordinary legislation.
Congress is on the case. On June 16, 2009, the House passed the Congressional Review Act Improvement Act, H.R. 2247, which would eliminate the reporting requirement to Congress but retain the reporting requirement to the GAO. Under the bill, the GAO would be required to submit to both houses a weekly report containing a list of the rules received, and the Speaker would be required to publish the GAO report in the Congressional Record. The bill is now in the Senate Committee on Homeland Security and Governmental Affairs.
January 5, 2010
D.C. Circuit Affirms Denial of Guantanamo Detainee Habeas Petition
The D.C. Circuit today affirmed the district court's denial of Ghaleb Nassar Al-Bihani's habeas petition. Al-Bihani is a Yemeni citizen detained at Guantanamo Bay since 2002 as a member of the 55th Arab Brigade, a paramilitary group allied with the Taliban and including Al Qaeda members in its command structure.
Al-Bihani contested his detention on both substantive and procedural grounds. On the substance, he claimed that, as a contractor and a cook for the 55th, he did not "support" or "substantially support" Al Qaeda or the Taliban. He claimed that international law did not authorize his detention, because he did not belong to an official state military or commit direct hostile acts. He argued that the 55th did not have the required opportunity to declare its neutrality, and therefore under international law of co-belligerency he was not detainable. Finally, he argued that he was not detainable, because the war between the United States and Taliban-controlled Afghanistan ended.
The district court ruled that Al-Bihani was detainable as "an individual who was part of or supporting Taliban or al Qaeda forces, or associated forces that are engaged in hostilities against the United States or its coalition partners" or an individual who "substantially support[ed]" enemy forces." (Recall that the Obama administration changed--but just slightly--the definition of detainable individual, adding the "substantial" qualifier.) Al-Bihani provided the evidence himself. According to the D.C. Circuit:
Al-Bihani's evidence . . . establish[ed] that the 55th "supported the Taliban against the Northern Alliance," a coalition partner, and that the 55th was "aided, or even, at times, commanded, by al-Qaeda members." Brief for Petitioner-Appellant at 33. Al-Bihani's connections with the 55th therefore render him detainable. His acknowledged actions--accompanying the brigade on the battlefield, carrying a brigade-issued weapon, cooking for the unit, and retreating and surrendering under brigade orders--strongly suggest, in the absence of an official membership card, that he was part of the 55th. Even assuming, as he argues, that he was a civilian "contractor" rendering services . . . those services render Al-Bihani detainable under the "purposefully and materially supported" language of both versions of the MCA.
Al-Bihani, at 9-10.
Al-Bihani's substantive arguments relied heavily on international law. But the D.C. Circuit ruled that international law did not control the President's war powers under the AUMF:
Before considering [al-Bihani's] arguments in detail, we note that all of them rely heavily on the premise that the war powers granted by the AUMF and other statutes are limited by the international laws of war. This premise is mistaken. . . . . [W]hile the international laws of war are helpful to courts when identifying the general set of war powers to which the AUMF speaks, see Hamdi, their lack of controlling legal force and firm definition render their use both inapposite and inadvisable when courts seek to determine the limits of the President's war powers.
Al-Bihani, at 7. This seems a rather sweeping claim in light of the Supreme Court's own use of international law in these cases. As Judge Williams wrote in concurrence:
The [above-quoted] paragraph appears hard to square with the approach that the Supreme Court took in Hamdi. . . . In any event, there is no need for the court's pronouncements, divorced from application to any particular argument. Curiously, the majority's dictum goes well beyond what even the governmenthas argued in this case. See Appellees' Unclassified Br. at 23 ("The authority conferred by the AUMF is informed by the laws of war.").
Al-Bihani, at 33-34.
Procedurally, al-Bihani argued that the district court's habeas procedures were inconsistent with Boumediene and habeas procedures for challenges to criminal convictions. In rejecting al-Bihani's claims, the D.C. Circuit ruled that Boumediene left the lower courts to develop their own procedures and held that these need not comport exactly with procedures for challenging criminal convictions. In the absence of more guidance from the Supreme Court, Judge Brown in concurrence all but pleaded with Congress to give the courts some guidance in conducting habeas proceedings for detainees:
[T]he circumstances that frustrate the judicial process are the same ones that make this situation particularly ripe for Congress to intervene pursuant to its policy expertise, democratic legitimacy, and oath to uphold and defend the Constitution. These cases present hard questions and hard choices, ones best faced directly. Judicial review, however, is just that: re-view, an indirect and necessarily backward looking process. And looking backward may not be enough in this new war. . . . Both the rule of law and the nation's safety will benefit from an honest assessment of the new challenges we face, one that will produce an appropriately calibrated response.
Al-Bihani, at 27.
January 4, 2010
Health Care "Nullification" Map
The Tenth Amendment Center tracks state health care "nullification" efforts on an interactive map, with useful links to legislation and proposed state constitutional amendments. We posted most recently on state constitutional arguments against federal health care reform here and here.
As you know, or might guess, the Tenth Amendment Center supports such state nullification efforts and argues that they are fully constitutional. Michael Boldin sets out the case here. If you think that the Supremacy Clause might have something to say about state arguments against federal health care reform, the Tenth Amendment Center has a response to that, too:
Sotomayor Profile in the New Yorker
The New Yorker profile of Sonia Sotomayor proclaims Sotomayor the first "celebrity justice." Nevertheless, most of the reporting in Lauren Collins' article is serious and thoughtful, providing an discussion of Sotomayor's background, nomination, and confirmation, as well as her first few months on the bench.
Regarding Sotomayor's future as a Justice, Collins notes that any prediction is a "chancy proposition," reminding readers that the "consensus when Scalia joined the Court was that he’d be a consensus builder," which obviously did not occur. Collins nevertheless interviews various persons for their opinions, perhaps the most engaging of which is offered by Sotomayor's Second Circuit colleague, Judge Guido Calabresi:
"Her whole experience as part of three discriminated-against groups, and ones which are not always coherent with each other—I’m talking about ethnicity, gender, and disability—plus her legal experience, in really being a district judge, really being a Court of Appeals judge, makes her different from really any Justice that I can think of."
This might be a good article to keep on hand to assign students, especially those beginning constitutional law courses.
January 3, 2010
Rosen on Biskupic on Scalia
Rosen calls Biskupic's book "impressively balanced and well reported," which shouldn't be surprising to anyone who has read Biskupic's previous biography of Sandra Day O'Connor.
By letting Scalia describe himself in his own words, Biskupic offers a profile of a man who, at the age of 73, sometimes appears smug and self-satisfied — adjectives he has used to describe critics of using torture in the war on terror — but not especially self-aware. Scalia thinks of himself as a pleasant fellow, and Biskupic reports that he was dumbfounded when Jon Stewart, in response to a Daily Show guest who suggested that John Roberts was nicer than Scalia, replied, “Aren’t we all nicer than Scalia?”
The review is worth a read, and is persuasive that the book will likewise be worth a read.