Wednesday, October 20, 2010

Fed Independence, Fed Capture

Would the Federal Reserve do better to drop its independence and become (once again) more accountable to elected officials?  Timothy Canova takes on this question in the current issue of The American Prospect.  He concludes that a period of Fed accountability during the 1940s, under Chair Marriner Eccles, resulted in far more successful and coordinated monetary policy, independent from the financial sector. 

Canova writes that during this period a more accountable, more transparent, and "socially neutral" Fed worked with the Office of Price Administration to accommodate congressional spending and borrowing priorities (and not, as now, to serve the interests of the financial sector by, e.g., buying up their toxic assets).  As a result, interest rates did not rise, even though federal spending and borrowing were much higher than today (as a percentage of GDP).  Why?  Because, argues Canova, an accountable Fed bought government securities "in any amount and at any price needed to maintain the interest-rate pegs at Treasury."  The net result: A Fed monetary policy that accommodated congressional fiscal policy that effectively dug us out of the Great Depression.

Canova suggests that Fed independence in 1951 opened up space for financial industry capture, a conclusion buttressed by a report last month from Reuters titled Cozying up to Big Investors at Club Fed.  According to the Reuters report, there's a fast-moving revolving door between the Fed and the financial industry and "information flow sometimes goes both ways as Fed officials let their guard down with former colleagues and other close private sector contacts."

Canova concludes his piece with this paragraph:

Few economists ever learn this period in Federal Reserve history, which has been airbrushed from most mainstream texts, including Bernanke's own economics textbook.  To the extent that the Eccles period is discussed at all, it is dismissed as an anomaly--which, sadly, it was.  Today's new normal is a central bank captured by private financial interests that is pursuing an elite agenda of deregulation, fiscal austerity, and bailouts and bonuses for bankers.  But as our nation's own history shows at one of America's finest hours, it doesn't have to be that way.


October 20, 2010 in Separation of Powers | Permalink | Comments (0) | TrackBack (0)

Ninth Circuit Grants Stay in Don't Ask Don't Tell

The Ninth Circuit has granted the DOJ Motion and issued an Order staying the district court's injunction (and refusal to stay the injunction) of the military's "don't ask don't tell" policy which the judge had declared unconstitutional:

This court has received appellant’s emergency motion to stay the district
court’s October 12, 2010 order pending appeal. The order is stayed temporarily in
order to provide this court with an opportunity to consider fully the issues

Appellee may file an opposition to the motion for a stay pending appeal by
October 25, 2010. To expedite consideration of the motion, no reply shall be filed.


October 20, 2010 in Current Affairs, Due Process (Substantive), First Amendment, Sexual Orientation | Permalink | Comments (0) | TrackBack (0)

Lawyering in the Age of Terror: Panel Discussion

Obama DOJ Appeals Denial of "Don't Ask Don't Tell" Stay to Ninth Circuit

Judge Phillips denial of the DOJ's motion to stay her injunction of the military's "don't ask don't tell" policy in Log Cabin Republicans v. US is being appealed by the DOJ in an Emergency Motion (with memo) to the Ninth Circuit filed today.  District Judge Phillips original declaration of unconstitutionality is here.

The DOJ memo includes rather cursory constitutional arguments, mainly arguing the doctrine regarding granting a stay.  One argument, however, rests upon the Ninth Circuit's opinion in Witt, essentially that the Ninth Circuit in Witt v. Department of Air Force, 527 F.3d 806 (9th Cir. 2008), remanded for the district court to determine whether the statute had been validly applied to the plaintiff, which "makes no sense if the Act is unconstitutional on its face."   Thus the "district court’s decision is thus inconsistent with controlling precedent, as well as with numerous appellate decisions upholding various applications of the statute."  The district court in Witt recently ruled that Witt should be reinstated.

Footnote one on the DOJ Emergency Motion, as in the district court pleadings, seeks to distance the Obama Administration from "Don't Ask, Don't Tell," even as it seeks to have the policy reinstated by the Ninth Circuit:

The Administration does not support § 654 as a matter of policy and strongly
believes that Congress should repeal it. The Department of Justice in this case has
followed its longstanding practice of defending the constitutionality of federal
statutes as long as reasonable arguments can be made in support of their

[UPDATE here]


October 20, 2010 in Current Affairs, Fifth Amendment, First Amendment, Sexual Orientation | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 19, 2010

Judge Phillips Denies Motion to Stay Order on "Don't Ask, Don't Tell"

In the latest round of Log Cabin Republicans v. United States, in which Federal District Judge has held the military's policy regarding "homosexuality" in the military unconstitutional, Judge Phillips has issued an Order denying the Government's Request to Stay.

Lt_Dan_Choi_March_on_Washington_2009  Highlights from the Judge's six page Order include an implicit admonishment to the Government attorneys:

Turning to the circumstances present here, the Court first notes Defendants had an opportunity to, but did not, present any of the evidence or arguments now advanced before the injunction issued. When the Court issued its Memorandum Opinion on September 9, 2010, it set out a briefing schedule regarding the form of the injunction. Although Defendants objected to the issuance of the injunction and its scope, they provided no evidence regarding the alleged disruption or need to revise "dozens of policies and regulations," as described in the Declaration of Clifford L. Stanley ("Stanley Declaration") . . . .  Furthermore, to the extent Defendants now submit evidence in the form of the Stanley Declaration, that evidence is conclusory and unpersuasive. It is belied by the uncontroverted evidence presented at trial regarding the Don't Ask, Don't Tell Act's effect on military readiness and unit cohesion.

Order at 2-3.

On the "public interest" prong of the stay analysis, the Judge rejected the Government's argument regarding the status quo:

The Court's analysis of the public interest is not so narrow . . .  the evidence at trial showed that the Don't Ask, Don't Tell Act harms military readiness and unit cohesion, and irreparably injures servicemembers by violating their fundamental rights. The public has an interest in military readiness, unit cohesion, and the preservation of fundamental constitutional rights. While Defendants' interests in preventing the status quo and enforcing its laws are important, these interests are outweighed by the compelling public interest of safeguarding fundamental constitutional rights.

Order at 6.

For the moment, the military's "don't ask don't tell" policy cannot be enforced.   News outlets, such as SF Chronicle, WaPo, WSJ, USA Today, and CNN report that recruiting offices are refraining from asking about sexual orientation and discharges on the basis of sexuality have ceased.

[UPDATE here]


[image: Lt. Dan Choi advocating for repeal of military policy, via]

October 19, 2010 in Current Affairs, Fifth Amendment, Fundamental Rights, News, Sexual Orientation | Permalink | Comments (0) | TrackBack (0)

Chemerinsky: A Conservative Assault on the Constitution

Erwin Chemerinsky released his new book, The Conservative Assault on the Constitution, late last month.  It's a highly accessible, often first-hand account (through his own cases, his own advocacy) of how a rightward shift in the composition of the federal courts has changed the Constitution.

Conservative Assault 

Among the topics Chemerinsky examines: school segregation; executive authority; religion clauses; rights of criminal defendants; and access to the courts.

Chemerinsky identifies separation of church and state as a key issue--one that happens to be in the headlines today, after Republican and Tea Partier Christine O'Donnell seemed to argue in her debate with Chris Coons that nothing in the First Amendment compels such separation.  Here's part of what Chemerinsky has to say about it:

A major concern of the right wing is the separation of church and state.  For decades, it was understood that the First Amendment's prohibition on the establishment of religion meant that there was a wall separating church and state, a wall that kept American governments secular.  But conservatives, especially starting with the Reagan presidency, have sought to eliminate any such notion.  They argue that the government should have broad latitude to aid religion andto include religion in government activities.  With the arrival of Chief Justice Roberts and Justice Alito, there now appear to be five votes for radically changing the law in this area in a manner that conservatives have advocated for decades.


October 19, 2010 in Books, Establishment Clause, Free Exercise Clause, Interpretation, Religion, Scholarship | Permalink | Comments (2) | TrackBack (0)

Monday, October 18, 2010

Seventh Circuit Upholds Moment of Silence in Schools

A three-judge panel of the Seventh Circuit on Friday upheld an Illinois law requiring a moment of silence at the beginning of each school day.  The case, Sherman v. Koch, involved this provision:

Period of Silence.  Sec. 1.  In each public school classroom the teacher in charge shall observe a brief period of silence with participation of all the pupils therein assembled at the opening of every school day.  This period shall not be conducted as a religious exercise but shall be an opportunity for silent prayer or for silent reflection on the anticipated activities of the day.

The provision was previously discretionary, but the legislature in 2007 changed the "may" to "shall" (as in "teacher in charge shall observe") over the governor's veto. 

Two of the three judges held that the provision satisfied the three-part Lemon test:

Secular Purpose.  The majority ruled that the legislature enacted the moment of silence in order to help students get settled for the day.  They relied upon the plain language of the provision--the choice that students have under the provision to engage in "silent reflection on the anticipated activities of the day"--in concluding that the legislature's purpose was secular.  

Advance or Inhibit Religion.  The majority ruled that the statute as written neither advanced nor inhibited religion.  The provision as written need not necessarily advance or inhibit religion, and the plaintiffs (in their facial challenge) didn't show that the provision was applied in a way that advanced religion.

Entanglement.  This wasn't at issue in the case.

The majority also concluded that the provision was not unconstitutionally vague.

Judge Williams dissented, taking aim particularly at the legislative purpose:

So while I recognize that we assess a legislature's stated purpose with some deference, let's call a spade a spade--statutes like these are about prayer in schools.  In my view, the legislature's decision to make the Act mandatory represents an effort to introduce religion into Illinois public schools, couched in the "hollow guise" of a mandated period of silence.  While the secular purposes articulated by the state might not be "shams," it seems clear to me that to whatever extent they are genuine, they are secondary to religious ones.  I share the concerns raised by a number of legislators who expressed their doubts about the true purposes behind amending the Act.

Op. at 41-42 (citation omitted).



October 18, 2010 in Establishment Clause, First Amendment, Fourteenth Amendment, Fundamental Rights, Opinion Analysis, Recent Cases, Religion | Permalink | Comments (1) | TrackBack (0)

The Persons Case: A Canadian Anniversary

Are women persons?  At one time, the Supreme Court of Canada answered this question in the negative,  but the Privy Council disagreed, thus allowing women to be considered "qualified persons" to run for elective office.

It's the anniversary - - - the 81st - - - of the Privy Council decision.  Our colleagues over at the Canda Supreme Court Blog have a good discussion of Edwards v. A.G. of Canada, the so-called Persons Case, as well as some of the subsequent Canadian gender equality cases.


[image via]

October 18, 2010 in Comparative Constitutionalism, Gender | Permalink | Comments (0) | TrackBack (0)

Sunday, October 17, 2010

Presidential Power and Torture/Surveillance: New Book

Charles Fried, former Solictor General and ConLawProf at Harvard Law  Because-It-Is-Wrong
and his son, Gregory Fried, philosophy department, Suffolk University, have co-authored  Because it is Wrong: Torture, Privacy and Presidential Power in the Age of Terror.   The book promises both a legal and philosophical discussion of torture and survelliance.  From the publisher's description:

Can torture ever be justified? When is eavesdropping acceptable? Should a kidnapper be waterboarded to reveal where his victim has been hidden? Ever since 9/11 there has been an intense debate about the government’s application of torture and the pervasive use of eavesdropping and data mining in order to thwart acts of terrorism. To create this seminal statement on torture and surveillance, Charles Fried and Gregory Fried have measured current controversies against the philosophies of Aristotle, Locke, Kant, and Machiavelli, and against the historic decisions, large and small, of Jefferson, Lincoln, and Pope Sixtus V, among many others. Because It Is Wrong not only discusses the behavior and justifications of Bush government officials but also examines more broadly what should be done when high officials have broken moral and legal norms in an attempt to protect us.

  An excerpt appears in the current Harvard Magazine; there is also an NPR interview with the authors and a discussion with the Gregory Fried on Firedoglake.


October 17, 2010 in Books, Executive Authority, Fifth Amendment, First Amendment, Foreign Affairs, Fourth Amendment, State Secrets | Permalink | Comments (0) | TrackBack (0)