Constitutional Law Prof Blog

Obama and the Judiciary

The PBS News Hour with Jim Leher had an interesting discussion today with Con Law profs Pam Karlan of Stanford University (oft-mentioned as a possible Obama judicial appointment) and Paul Cassell of University of Utah (a federal district judge from 2002-2007) predicting the impact of an Obama Administration on the federal judiciary.

Paul Cassell has this to say in part:

And I think the real concern is whether President Obama will bring back something like the Warren Court years, where it seemed like every few months there would be a new constitutional right that was discovered in the Constitution, a constitutional right that struck down acts of Congress or the views of the state legislatures, the views of the American people.

Cassell predicted that Obama appointees would have "more of an activist bent than you would have seen under a President McCain or you have seen in the last eight years from President Bush."

Karlan disagreed:

activism is one of those words that's a little complicated, because I think a lot of President Bush's appointments to the bench have been far more activist than the appointments of Democratic presidents.

I mean, if activism means striking down laws that were enacted by democratically elected, popularly elected legislators, then what do we say about conservatives on the Supreme Court, for example, who strike down the D.C. gun control act or conservative judges who refuse to enforce disability laws that Congress passed against state governments?

The full transcript is available here (but note that the pull quote under Cassell's photo is actually Karlan's statement).

RR

Can the Senate Block Burris?

Illinois Gov. Rod Blagojevich's appointment of Ronald Burris to fill President-Elect Obama's Senate seat is by now a too familiar story.  The NYT reports today what we also expected:  Senate Democrats will seek to block the appointment.

But can they do it?

This is the hot topic in the blogosphere.  I'll outline the contours of the debate; links follow.

Article I, Section 3, of course, sets the age, citizenshp, and residency qualifications for senators; there's no serious question that Burris meets them.  And under Powell v. McCormack, the Senate could only refuse to seat Burris if he didn't meet these.  Several commentators end there: The Senate can't block Burris because of Powell.

But Article I, Section 5, empowers the Senate to "be the Judge of the Elections, Returns and Qualifications of its own Members."  There was no election--Burris was appointed--and there's no question about Burris's qualifications.  But the Senate may be able to block Burris based on flawed "Returns"--the governor's appointment--as long as this isn't an end-run around Powell. 

And the Seventeenth Amendment permits a state legislature to empower the governor to fill a Senate vacancy "until the people fill the vacancies by election as the legislature may direct."  The Senate may be able to block the appointment based on an improper executive appointment.  Reading the Seventeenth Amendment to modify Article I, Section 5, this approach may get around the restriction in Powell. 

Jack Balkin and Mark Tushnet at Balkinization have the best analysis and commentary.  The Huffington Post reports on the views of "legal scholars" here; DailyKos here; the Faculty Lounge here.

SDS

Fair Share and ERISA Preemption

Rick Hills started an interesting discussion at PrawfsBlawg on ERISA preemption of state and local "fair share" laws.  In general, these laws require employers to provide medical coverage for their employees, or to pay a tax (that goes into, e.g., a state health insurance fund).  In effect, employers gain a tax credit for providing health insurance to their employees. 

Employers have claimed that ERISA preempts these efforts, because, in the language of ERISA preemption, they "relate to" employers' ERISA plans.  Circuit have split on this argument: The Fourth Circuit ruled that ERISA preempts, while the Ninth Circuit ruled that it doesn't.

Hills's post and comments go beyond the narrow constitutional preemption arguments, though, and touch upon broader federalism and policy concerns.  Hills:

But here is where I am a die-hard lover of federalism: As dumb as employer mandates are, centralizing debate over health care through a broad construction of ERISA preemption is even dumber. Such centralization is an outrage against the democratic process both locally (by suppressing the efforts of those zany San Franciscans) and nationally (by letting Congress off the hook of confronting the relationship between health care and employment). San Francisco hurts no one but itself and its own residents by burdening business and driving away capital to the 'burbs. The claim that national businesses will suffer some external cost outside San Francisco from disuniform regulation is patently baloney: Any business that operates in any city already must uncontroversially incur the costs of researching and complying with local zoning codes, local taxes and fees, local building codes, local safety regulations, etc. The marginal cost of insuring that one's local branch complies with the local complying health care law is close to zero.

For another policy take, see Fisk and Oswalt's Preemption and Civic Democracy in the Battle over Wal-Mart in the Minn. L. Rev. and on ssrn.

Here's an area that begs for the kind of broader analysis that Hills, Fisk, Oswalt, and others bring.  With the failure of the federal government to lead on national health care, state and local governments have sought to fill the void, responding to the increasingly desperate needs of their citizens.  But they're (at least potentially) constrained by federal ERISA preemption.  In short, the federal government refuses itself to step up and address the health care crisis, and also curtails state and local efforts to solve the problem.

This problem is rich with preemption, federalism, distributional, and governance issues, and it makes a great case-study in some of the practical problems with constitutional preemption.

SDS

Phair on Constitutional Constraints on a Lame Duck President

Ryan Patrick Phair recently published a very thoughtful American Constitution Society Issue Brief titled The Lame Duck Presidency: A Case for Restraint on "Midnight" Actions During the Transition Period.  The Brief explores constitutional limits on a lame duck president and argues that President Bush has exceeded his constitutional authority in two key areas--the Status of Forces Agreement and the Strategic Framework Agreement with Iraq, and midnight regulations.  (We've posted previously on Bush administration midnight regulations here, here, here, and here.)

Phair argues that the Oath and the Take Care Clause, along with the structure of the constitution, create constitutional constraints on the lame duck president, and that the nature and extent of the constraint depend upon five factors.  Phair:

While there is room for disagreement as to what actions may be so constrained, and a lame-duck President is likely only answerable to himself and historians, a strong argument can be made that a lame-duck President has a constitutional duty to avoid taking any unilateral, otherwise avoidable actions during the transition period that would significantly tie the hands of an incoming administration in many circumstances.  The circumstances giving rise to such a duty would likely depend on consideration of five key factors:

1.  Whether the proposed policy or course of action is a unilateral exercise of executive power that is unchecked or opposed by Congress;

2.  The extent to which the proposed policy or course of action would bind or tie the hands of the President-elect against his wishes, including whether the President-elect could undo the action and, if so, how difficult it would be to accomplish;

3.  The extent to which the proposed policy or course of action is avoidable;

4.  The extent to which the proposed policy or course of action represents the popular will, taking into account the lame-duck President's popular support; the salience of the issue in the election; and the degree to which voters can be fairly deemed to have passed judgment on it; and

5.  The institutional interests of the presidency and the best interests of the country.

Phair applies the factors to the Iraq SOFA and Strategic Framework, and to the Bush administration midnight regulations, and argues that these actions are unconstitutional.  As to the midnight regulations, he explores possible fixes for the Obama administration under the Congressional Review Act.

Phair's analysis is thoughtful and persuasive--even if you take issue with the factors--but it fails to give enough attention to the constitutional counterpoints, principally that the Term Clause gives a president a term of four full years (with full Article II powers).  As a result, the Brief, it seems, is really an argument against a transition period (and not an argument for constitutional constraints during the transition period, which would have to be balanced more seriously against the Term Clause).  This doesn't make the Brief any less persuasive, thoughtful, or valuable.  But it places Phair's argument in just slightly different company, most notably (and recently) with Sandy Levinson's series of posts criticizing the transition period on Balkinization. 

Whether an argument for constraints on a lame duck president or an argument against a transition, it's well worth a read.

SDS

In Case You Missed It . . .

Although the holidays technically aren't over yet, people are gradually easing back into the "work" mode.  Well, my goal this week is to provide analysis of some stories that you might have overlooked while grading bluebooks, eating pumpkin pie, or chatting with family and friends. 

As frequent readers of the site know, my co-editors and I have mentioned the outgoing administration's use of midnight regulations several times in the space.  One of the more recent midnight regulations is such a doozy that it deserves a mathematical equation of its own:  First Amendment rights + Fundamental rights+ Midnight Regulation = A big problem.   I'll explain.

The regulation at issue is the medical "conscience" exception.  As previously explained in this blog, the goal of the proposed regulation was to prevent entities recieving Title X funds from discriminating against health care workers with moral or religious objections to performing abortions or similar services to women who request them.  Two things should be noted before we proceed.  First, there are already several regulations in place - as well as Title VII of the 1964 Civil Rights Act - that prevent discrimination based on religious convictions.  Second, as the Wall Street Journal reports, "Advocates on both sides of the issue have interpreted the rule as also protecting workers who refuse to participate in providing birth control or other care they don't support."

The First Amendment portion of the equation is not complicated.  Of course, those who have strong religious - and perhaps even moral, non-religious - objections, could and should be protected under the Free Exercise clause.  I believe it is not controversial in the least to say that those with true objections to a procedure that is hotly debated on medical, physchological, religious, and ethical grounds should be protected.   

The Fundamental Rights portion of our equation is more complicated.  While most would agree that the providers have a right of conscience, at what point does the professional's conscience give way to the duty to provide the best service to the patient - even if that is not what a doctor would choose for herself?  What would happen if every single OB/GYN in the nation decided that they would refuse to perform abortion services?  Such a drastic turn of events would render a woman's fundamental right to choose regarding her pregnancy a meaningless tenent - a right without remedy.  While this hypothetical is extreme, it is true that the number of abortion providers is steadily declining.  At what point can - or should? - we say to health care providers, "Your right to act on your conscience ends here."  It's an extremely difficult line to draw.  Moreover, when two fundamental rights clash, which should prevail?  It will likely depend on the method of interpretation and jurisprudence favored by the particular justices hearing the cases, which means there is no clear way to predict the outcome.   

The second fundamental rights issue is that while most would not quibble with persons being exempted from performing actual abortions, the regulations are arguably broadening the scope beyond abortion. Newsweek states that under the regulation, a pharmacist could refuse to supply Plan B - a contraceptive that can prevent pregnancy after unprotected liasons - although Plan B is incapable of terminating an existing pregancy.  Even if someone is adamantly opposed to abortion, should this objection be extended to contraception unless it is an explicit religious tenet?  This is a dangerous development as linking abortion and contraception will potentionally result in lowered protection for contraception as well.  Moreover, it leads inevitably to the question of where will the argument end?  Jill of Femiste cogently explains the "slippery slope" argument as follows:

So what if a pharmacist wakes up tomorrow and decides that AIDS is your punishment for being gay, or your STI is a punishment for being a big whore, and refuses to fill your prescription for the medication you need? What if a Scientologist decides that he shouldn’t have to leave his moral beliefs at the door, and refuses to write or fill any prescriptions for psychiatric meds? What if a Christian Scientist decides that he is under no obligation to provide any health care at all? What if an ER doctor or EMT’s religion forbids them from touching someone of the opposite sex and so they refuse to treat half the population, even in emergencies?

The next part of the equation is the Executive (and legislative) response.  For his part, President Elect Obama is already considering ways to reverse the regulation.  Soon-to-be Secreatary of State Clinton and Senator Patty Murray (D-Wa) have vowed to introduce legislation to block the measure.  However, either method would be time-consuming, and there is no guarantee the Congressional route would be effective.    

This is a fascination regulation that raises a number of issues, so we will continue to update on any further developments.

NLS

The Sunday Reader: Sunstein on OSHA's Nondelegation Problem

Cass Sunstein (Harvard, Chicago) recently published a characteristically thoughtful and important piece, whose title asks a provocative and perhaps surprising question:  Is OSHA Unconstitutional?  The article appears in the most recent issue of the Va. Law Review; it's also posted on ssrn.  I highly recommend this.

OSHA's constitutional problem is one of nondelegation:  It lacks an "intelligible principle" to guide and limit agency discretion.  Sunstein explains:

[The core provision of OSHA] defines an "occupational safety and health standard" as one that is "reasonably necessary or appropriate to provide safe or healthful employment or places of employment."  When the Secretary of Labor issues regulations governing tractors, ladders, or electrical equipment, the only question to be asked is whether one or another standard is "reasonably necessary or appropriate."

This language apparently gives the agency authority to "choose whatever principle it likes"--an unconstitutionally broad delegation of authority.

Needless to say, this is a rather significant problem, given OSHA's sweep.  But the nondelegation problem is only part of Sunstein's interest:  He also seeks "to shed light on some pressing questions for both regulatory policy and administrative law."  And these are indeed pressing; Sunstein:

Over 5000 Americans die each year in the workplace, and more than four million are injured or sickened by the conditions of their employment.  Surely steps could be taken to reduce these deaths, injuries, and illnesses.

Sunstein explores three judicial solutions to these problems.  First, and most aggressively, courts could rule OSHA unconstitutional.  This solution would require Congress to reconsider OSHA--thus increasingly "democratic engagement with that question"--and "might produce a better, because more informed, occupational safety law."  But the solution is also obviously dramatic and disruptive and, as Sunstein argues, unnecessary.

Second, and least aggressively, courts could set floors and ceilings for agency actions, building on current agency practices.  This approach has the benefit of avoiding the constitutional question--the Avoidance Canon--but still gives the agency perhaps too much discretion.

Finally, courts could adopt a reasonable relation test between costs and benefits of regulations.  Sunstein explains:

The agency should therefore be required to show, not that a regulation satisfies a strict cost-benefit test, but that the costs have a reasonable relationship to the benefits.  If the monetized costs exceed the monetized benefits, the agency should be permitted to proceed so long as there is such a relationship between the two. . . .  The agency could well decide that a rule would have desirable welfare effects even if the monetized benefits were lower than the monetized costs.

Sunstein argues that this third solution both avoids the constitutional issue and provides sufficient guidance to the agency.  It also puts the OSHA issues in the sunshine.  But, as he recognizes, the solution also leads to its own problems:  OSHA doesn't obviously require this kind of loose cost-benefit analysis; and it's not clear why the courts should be able to save a statute from nondelegation problems when agencies themselves, under American Trucking, cannot.  Sunstein argues that invocation of the Avoidance Canon resolves both problems:  The courts may--even if not must--adopt the loose cost-benefit approach and thus validly interpret OSHA to avoid the nondelegation problem.

In addition to the constitutional analysis and argument, this article is an excellent springboard for discussions of institutional roles and competence, democratic engagement and legitimacy, and the appropriate role of cost-benefit analysis in agency decisionmaking.  I highly recommend this.

SDS

South Africa Constitutional Court appointment

Edwin Cameron, has been appointed to the South Africa Constitutional Court.   

As South Africa's Sunday Times describes him in an article confirming his recommendation yesterday here:

Judge Cameron, currently a Supreme Court of Appeals judge, is one of South Africa’s most prominent people living with HIV and was a vocal critic of Thabo Mbeki’s Aids denialism. His book, Witness to Aids, contains a scathing critique of Mbeki’s Aids policies, which earned him a snub by Mbeki the last time the JSC recommended him for the job.

Another SA news source confirms the appointment today here, and SA con law prof Pierre de Vos confirmed the appointment on his blog, Constitutionally Speaking here.

Cameron's role as an outstanding jurist in SA was recently the topic of a symposium, Judges and the world: A symposium in celebration of the work of Edwin Cameron, held at the Oliver Schreiner School of Law, University of Witswatersrand, and organized by Angelo Pantazis (Head of School) and Marius Pieterse (whose work was a Saturday Evening Review feature here).  A description of the conference is here.

As an openly gay man serving on his nation's highest court, Cameron is not a first; that distinction seems to belong to Justice Michael Kirby of Australia's High Court, appointed in 1996, although he did not publicly announce his sexuality until 1999, wikipedia bio available here.

RR

Saturday Evening Review: Oxford Handbook of Law and Politics

The Oxford Handbook of Law and Politics, edited by Keith E. Whittington, R. Daniel Kelemen, and Gregory A. Caldeira (Oxford University Press, 2008), is a 832 page tome described by the publishers as providing a

comprehensive survey of the field of law and politics in all its diversity, ranging from such traditional subjects as theories of jurisprudence, constitutionalism, judicial politics and law and society to such re-emerging subjects as comparative judicial politics, international law, and democratization. The Oxford Handbook of Law and Politics gathers together leading scholars in the field to assess key literatures shaping the discipline today and to help set the direction of research in the decade ahead.

How does a ConLaw Prof assess whether she needs yet another "handbook" on the general field of law with an interdisciplinary focus, priced at $ 150?

A good place to start is the table of contents, which is available on the OUP site (either US or UK).  It's an impressive roster of authors, although some of the names will be less familiar to law school academics who eschew political science scholars.  The scope is predictably wide, but perhaps less predictably has a definite US-focus, despite the four chapters (less than 10% of the book) on International and Supranational Law.   The section entitled "Sources of Law and Theories of Jurisprudence" looks especially enticing for any ConLawProf, with chapters on Positivism  (Jules Coleman), Natural Law (Robert George),
Rights Liberalism (Matthew Kramer), Formalism and Its Discontents (Frederick Schauer), Feminist Theory (Judith Baer), and Race and Legal Theory (Sheila Foster and Robin Lenhardt).

But a TOC (and the publisher's promotion materials) only provide a glimmer.  What one really needs, is a review.  And of course, not simply one review, but several of them, preferably by scholars and colleagues one can trust (as opposed to the anonymous postings on on-line book seller sites).

Luckily, the Law and Politics Book Review (which I've previously mentioned here), has a Symposium here on the book, also available as the 2008 Winter issue of LAW & COURTS (Volume 19, No.1), available as pdf from site here.  It's a series of five short reviews of the book, although Jeffrey Staton, one of the reviewers states, a handbook is actually a "series of review essays," and so in his review Shaping the Field?, he is "reviewing a collection of reviews."  He says that the "real success of the volume" is its potential to "start productive conversations among scholars in the various subfields" that is law and politics:  "Although the essay writers do not really engage each other directly, I think the best way to view the handbook is as an invitation to readers to flesh out implicit conversations in the essays."  It is Stanton's personal reflection, however, that provides the highest compliment for the book:

Some of the most intellectually stimulating moments on the job occur at faculty workshops or job talks where the research subject is outside your area. Learning that someone else thinks about a particular research problem in roughly the same way as you think about an analogous yet distinct research problem is exciting and reassuring. But it is even better when you see someone work through a problem in a way that provides material assistance to your own struggles. In large part, the handbook serves this purpose. I am anxious to get to work on my own research in light of what I have read from other scholars. I am also excited about the opportunity to reach out to people outside my subfield in an effort to collaboratively advance shared research questions.

Wendy Martinek of Binghamton University is less impressed and seemingly less stimulated.  Indeed, she cogently criticizes the entire enterprise of the interdisciplinary nature of law and politics scholarship.  In her review, Interdisciplinarity in Legal Scholarship, she argues that

Even a casual reader of the [Oxford Handbook's] chapters on law and economics (Kornhauser), law and psychology (Tyler), and law and history (Tomlins) – all of which appear in Part IX “Interdisciplinary Approaches to Law and Politics” – will come away with some sense of what might reasonably be seen as an economic or psychological or historical approach to the study of some aspect or aspects of law. But we can consider these interdisciplinary approaches only by assuming that law is a separate discipline. Setting aside the study of and training in the actual practice of law, however, I respectfully submit that law is not a separate discipline unto itself. There is no unique theoretical focus or particular methodological tool that demarcates law from other disciplines.  And scholarship that examines law through the lens of only one discipline – no matter how finely crafted and insightful – cannot be properly understood as interdisciplinary.

Martinek's "setting aside the study of and training in the actual practice of law" is an intriguing caveat.  Is that the difference between ConLawProfs who teach in law schools vs. ConLawProfs who teach in other parts of the university or in non-US law schools/departments that are not devoted to professional "training" in the same manner? 

Thomas Keck of Syracuse also contributed to this review symposium and I was especially anxious to learn his thoughts since I've used his excellent book, The Most Activist Supreme Court in History: The Road to Modern Judicial Conservatism (U Chicago, 2004), in my own work several times.  In his review, Law, Politics, and Political Science, he writes that the Oxford Handbook is "fabulous" with something for everyone in the law and courts "community," and adds:

despite my repeated efforts to prepare for this essay by focusing on the chapters most relevant to my own research on the Supreme Court and American constitutionalism, I kept getting distracted by excellent chapters on comparative and international law, particularly the contributions by Kim Lane Scheppele (on extralegal emergencies), Karen Alter (on the European Court of Justice), Tom Ginsburg (on the global spread of judicial review), and Ran Hirschl (on the worldwide judicialization of politics).

Yet Keck has some stinging criticism of the ten-volume series, Oxford Handbooks of Political Science, of which this volume is a part.  His bottom line is that the law and courts subfield is not well represented in the other nine volumes in the Oxford series, much to the detriment of those volumes.

Lisa Hilbink of University of Minnesota, approaches the Handbook from her perspective as a "comparativist" in a field "long dominated by scholars of a single court in a single country – namely the U.S. Supreme Court."  Hilbink's review, From Comparative Judicial Politics to Comparative Law and Politics, is an important argument for rethinking the limited scope of  many ConLaw courses and casebooks.   I'm a huge advocate of expanding coverage to include the lower federal courts, even in a US-focused conlaw course, so I find Hilbink's comments "spot-on."  As for the Handbook, Hilbink concludes it risks "reproducing some of the existing pathologies of the law and courts subfield":

Reading the chapters in the “Comparative Judicial Politics” section of the OHLP, I was struck by three things: first, the almost exclusive focus on high courts and constitutional decision-making in the countries of study; second, a tendency to discount the relevance of factors in any way internal to law or legal institutions; and third, a limited and limiting view of politics as narrowly instrumental. 

Hilbink's review supports her points and can be extended beyond the "comparativist" perspective.  Her review gestures toward answering the question that many students in law schools ask their ConLawProfs, in various guises but which can be reduced to a query such as "so, the Justices just do whatever they want?" 

Finally, Malcolm Feeley of UC-Berkeley School of Law (Boalt Hall), in his review, Whither Public Law Scholarship? An Assessment of an Assessment of the Field, has several things of interest to add.   Refreshingly, he admits that at one time he was rather " dismissive of encyclopedia and handbook entries. This changed markedly after I’d written my first such entry."  Having written a few of these myself (and repeatedly vowed not to write more), Feeley's reminder of the difficulty of such pieces is a good one.  Feeley also provides an admission:

I must confess I have not read all 774 pages and all forty five entries (excluding index and front matter). But I have skimmed and dipped in here and there – reading most of the essays that are both closest to and farthest away from my areas of interest, and reading as well the volume’s four introductory and three concluding essays. I feel moderately confident in assaying the HANDBOOK as a whole, and in underscoring my conclusion: the editors and authors have done well for the field.

Feeley not only provides some incisive analysis, but also points the way forward:

my suggestion as to what to do with the volume: Get your department to order the volume – or if you can afford it, order it yourself. When it arrives, place it on departmental reserve and invite public law graduate students and would-be public law graduate students to read it. Arrange a schedule; select two or three essays at a time, and meet in the student lounge to discuss them. Eventually work your way through most if not all of the volume. It should be a rewarding experience not only for the students but for you as well. What you can do in this process is what the authors of the entries did not do enough of – engage the different entries with each other. . . .  The combination and permutation of the various ideas in the entries invite a host of interesting possibilities.  You get the idea.

I've gotten the idea.  Although rather than students, why not colleagues?  Anyone up for a reading group next semester?

RR

Rossi on the Nondelegation Doctrine

Here's an excellent and concise (4-page) encyclopedia overview of the nondelegation doctrine by Jim Rossi (Fl. State) for the Encyclopedia of the Supreme Court of the United States.  Take a look.

SDS

Liptak on Bush v. Gore

Adam Liptak reports in today's New York Times on the staying power of Bush v. Gore in the lower courts.  From the article:

But now, as the petitioner leaves the national stage, Bush v. Gore is turning out to have lasting value after all.  "You're starting to see courts invoke it," said Samuel Issacharoff, a law professor at New York University, "and you're starting to see briefs cite it."

For example, reports Liptak, the Sixth Circuit just last month cited the case several times in a unanimous opinion upholding the lower court's denial of defendants' motion to dismiss a case challenging Ohio's touchscreen voting machines under the Equal Protection Clause and substantive due process. 

The full opinion is here; here's a bit of what the court pulled from Bush v. Gore:

The right to vote is protected in more than the initial allocation of the franchise.  Equal protection applies as well to the manner of its exercise.  Having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person's vote over that of another.  It must be remembered that the right of suffrage can be denied by a debasement or dilution of the weight of a citizen's vote just as effectively as by wholly prohibiting the free exercise of the franchise.

SDS

White House Bails Out Automakers with TARP Funds

The White House announced last Friday that it would bailout automakers using Congressionally allocated funds under the Troubled Asset Relief Program (or TARP).  The NYT reports here. 

The problem, as several have noted, is that automakers are not (obviously) "financial institutions" under the TARP, and they therefore do not (obviously) qualify for a TARP bailout.  Eric Posner at the Volokh Conspiracy surveys the landscape here; Randy Picker at the U. Chicago Law School Faculty Blog posts, with links, here and here.

TARP defines "financial institutions" this way:

any institution, including, but not limited to, any bank, savings association, credit union, security broker or dealer, or insurance company, established and regulated under the laws of the United States or any State . . . .

Automakers not included.  (And note that the White House effort targets GM, not GMAC, which might have put the program more obviously within TARP limits.)

Add to this that Congress declined to pass a bailout bill for automakers.  This alone, of course, says nothing about Treasury's authority under TARP, but it strongly suggests Congressional intent not to bailout the automakers.

So where does the White House get authority to use TARP funds to bailout automakers?  Here's perhaps a clue, from VP Cheney's interview with Chris Wallace on Sunday:

These aren't normal circumstances.  We're in the midst of the worst financial crisis in recent memory.  I think it's a good package.  I think, you know, we talk about the Congress being critical.  They had ample opportunity to deal with this issue and they failed.  The president had no choice but to step in.

If Cheney's comments reflect the administration's legal analysis--admittedly a significant "if"--all this talk about whether the automakers fit the definition of "financial institution" is irrelevant: The administration bailed them out using emergency, "Schmittian" powers--see Rick Hills's post last week on PrawfsBlawg--and simply used the TARP for cover.  Hills, summarizing Vermeule:

There is no point in searching for a "legal" answer -- in the sense of parsing the text or legislative history for either a formal or purposive answer to the question. Instead, one simply has to decide which decision-maker has the power to decide when the rule runs out -- that is, determine the shape of the "exception," in Schmitt's term.

But the Schmittian approach doesn't fit well here, where the administration had to rely upon a Congressionally authorized funding program (because Congress, not the executive, has the power of the purse).  We've seen this administration stretch its own inherent Article II powers in reponse to an emergency, but here we have the administration playing fast and loose with Congressional action in an area--spending--that's exclusively within Congress's bailiwick.

And finally--and paradoxically--the administration's automaker bailout seems to lend credence to the claim that the TARP runs afoul of the nondelegation doctrine: If TARP can be so stretched, it seems there are no Congressional standards in the bill at all.  If that's so, Congress improperly delegated lawmaking authority.  It seems as though the administration has created its own Constitutional Catch-22: Any reliance on TARP creates a nondelegation problem. 

But even if the administration's action violates the Constitution, it's not clear that there's a judicial remedy.  As some have asked: Who would have standing to challenge the automaker bailout, anyway?

SDS

Cheney on Constitutional Powers of the President

Chris Wallace interviewed Vice President Dick Cheney on Fox News Sunday this week; links to the video and the transcript are here.  Not much new here, but Wallace's gentle questioning allowed Cheney to set it all out in one place.  Here are some highlights:

On the financial bailout and the President's bailout of the automakers:

I think, you know, we talk about the Congress being critical. They had ample opportunity to deal with this issue and they failed. The president had no choice but to step in.

On comparative exercise of Article II powers, in historical context:

I mean, the fact of the matter is that, especially given the kind of conflict we're faced with today, we find ourselves in a situation where I believe you need strong executive leadership.

What we did in this administration is to exert that kind of authority. We did it in a manner that I believe and the lawyers that we looked to for advice believed was fully consistent with the Constitution and with the laws of the land. And there's, I say, ample precedent for it.

If you think about what Abraham Lincoln did during the Civil War, what FDR did during World War II, they went far beyond anything we've done in the global war on terror.

But we have exercised, I think, the legitimate authority of the president under Article 2 of the Constitution as commander in chief in order to put in place policies and programs that have successfully defended the nation.

On Presidential powers relative to Congressional and Judicial authorities:

WALLACE: If you could conceptualize it for me, sir, what do you think are the powers of the president relative to Congress and relative to the courts during war?

CHENEY: Well, I think in wartime, when you consider his responsibilities as commander in chief, clearly that means command of the armed forces.

It also, when you get into use of forces in wartime, means collecting intelligence. And therefore, I think you're fully justified in setting up a terror surveillance program to be able to intercept the communications of people who are communicating with terrorists outside the United States.

I think you can have a robust interrogation program with respect to high-value detainees. Now, those are all steps we took that I believe the president was fully authorized in taking and provided invaluable intelligence which has been the key to our ability to defeat Al Qaida over these last seven years.

WALLACE: This is at the core of the controversies that I want to get to with you in a moment. If the president during war decides to do something to protect the country, is it legal?

CHENEY: General proposition, I'd say yes. You need to be more specific than that. I mean — but clearly, when you take the oath of office on January 20th of 2001, as we did, you take the oath to support and defend and protect the Constitution of the United States against all enemies, foreign and domestic.

There's no question about what your responsibilities are in that regard. And again, I think that there are bound to be debates and arguments from time to time, and wrestling back and forth, about what kind of authority is appropriate in any specific circumstance.

But I think that what we've done has been totally consistent with what the Constitution provides for.

The president of the United States now for 50 years is followed at all times, 24 hours a day, by a military aide carrying a football that contains the nuclear codes that he would use and be authorized to use in the event of a nuclear attack on the United States.

He could launch a kind of devastating attack the world's never seen. He doesn't have to check with anybody. He doesn't have to call the Congress. He doesn't have to check with the courts. He has that authority because of the nature of the world we live in.

. . .

CHENEY: Well, they have, for example, said — passed the War Powers Act. The War Powers Act is still in force out there today. That requires him to grant certain notifications to the Congress and give them the authority to supersede those by vote, if they want to, when it comes to committing troops.

No president has ever signed off on the proposition that the War Powers Act is constitutional. I would argue that it is, in fact, a violation of the Constitution, that it's an infringement on the president's authority as the commander in chief.

It's never been resolved, but I think it's a very good example of a way in which Congress has tried to limit presidents' authority and, frankly, can't.

On the Terrorist Surveillance Program:

WALLACE: Let's drill down into some of the specific measures that you pushed — first of all, the warrantless surveillance on a massive scale, without telling the appropriate court, without seeking legislation from Congress.

Why not, in the aftermath of 9/11 and the spirit of national unity, get approval, support, bring in the other branches of government?

CHENEY: Well, let me tell you a story about the terror surveillance program. We did brief the Congress. And we brought in...

WALLACE: Well, you briefed a few members.

CHENEY: We brought in the chairman and the ranking member, House and Senate, and briefed them a number of times up until — this was — be from late '01 up until '04 when there was additional controversy concerning the program.

At that point, we brought in what I describe as the big nine — not only the intel people but also the speaker, the majority and minority leaders of the House and Senate, and brought them into the situation room in the basement of the White House.

I presided over the meeting. We briefed them on the program, and what we'd achieved, and how it worked, and asked them, "Should we continue the program?" They were unanimous, Republican and Democrat alike. All agreed — absolutely essential to continue the program.

I then said, "Do we need to come to the Congress and get additional legislative authorization to continue what we're doing?" They said, "Absolutely not. Don't do it, because it will reveal to the enemy how it is we're reading their mail."

That happened. We did consult. We did keep them involved. We ultimately ended up having to go to the Congress after the New York Times decided they were going to make the judge to review all of — or make all of this available, obviously, when they reacted to a specific leak.

But it was a program that we briefed on repeatedly. We did these briefings in my office. I presided over them. We went to the key people in the House and Senate intel committees and ultimately the entirely leadership and sought their advice and counsel, and they agreed we should not come back to the Congress.

There's much more here, too.  This is no Frost-Nixon interview, but it's well worth a look.

SDS

The Fourth Senate Seat? Colorado!

In my previous post about vacant US Senate seats here, I neglected the Colorado position expected to be vacant courtesy of Obama's selection of Ken Salazar as Secretary of the Interior - - - a choice that has some environmentalists less than pleased.

As for the replacement to be appointed by Colorado Governor Bill Ritter, Jr., there are "candidates aplenty" as the Washington Times phrases it here.    Among those being mentioned by the NYTimes in its "handicapping": Representative John T. Salazar (the soon-to-be-ex Senator's brother), as well as other possibilities here.

RR

The Sunday Reader: Ni Aolain and Gross on the Crisis Executive

Professors Fionnuala Ni Aolain (U. Minn. and U. Ulster) and Oren Gross (U. Minn.) recently posted on ssrn A Skeptical View of Deference to the Executive in Times of Crisis, forthcoming in the Israel Law Review.  The piece is a response to arguments for extraordinary executive powers during crises, and particularly to those in Eric Posner and Adrian Vermeule's Terror in the Balance: Security, Liberty, and the Courts.  (I posted last month on Posner and Vermeule's article on extraordinary executive powers in the current financial crisis here.)  The pair has taken an interesting and important comparative approach in their prior work together--see Gross and Ni Aolain, Law in Times of Crisis: Emergency Powers in Theoretical and Comparative Perspective--but this article is a rather straight-forward response to assumptions and arguments in Posner and Vermeule's book.  It's well worth a look; I highly recommend it to profs and students as a primer on the issues, with the authors' other work (linked above and below) to explore the issues further.

Ni Aolain and Gross first address the claim that "civil libertarians assume governments do not act rationally when they choose to aggrandize their crisis powers . . . ."  They argue that this is not only an "intellectual cheat," but that civil libertarians recognize "that there are benefits to the community and to particular groups within it when emergency powers are activated."  The authors:

Most notably emergencies present opportunities to legislate which may not easily arise again. . . . [I]t is not by co-incidence that we find massive legislative enactments being produced in a period of days or weeks. . . .  Both [the Prevention of Terrorism Act in the United Kingdom in 1974 and the USA Patriot Act] were massive in scope and content and neatly illustrate two points.  First, that extreme events put pressure on the state to respond and that that rejoinder invariably results in legislative outcomes which are produced in circumstances vastly different from the normal.  Second, that such legislative enactments are broad and deep in scope.

Next, they take on Posner and Vermeule (and other supporters of extraordinary executive powers in crises) for overemphasizing the benefits--and not adequately addressing the costs--of extraordinary executive powers.  Particularly, there are unaccounted for long-term effects upon legal systems and social structures; finances, reputation, and physical structures; "repression by the state and the mobilization of violent actors in the emergency law context"; and inability to undo the emergency once it has begun.

Third, the authors argue (contrary to Posner and Vermeule and others) that there is not a zero-sum exchange between civil liberties and security; instead the two go together: Security simply cannot be effective without concern for civil liberties and human rights.  And finally they argue that extraordinary powers too often mean extra-constitutional powers, "straying outside agreed constitutional boundaries, or stretching such boundaries to diminish the status and role of other branches in times of crisis."  This is so because emergency powers lose sight of the "relationship between duration and emergency."

Ni Aolain and Gross make a good case on these points against extraordinary executive authority in a crisis.  And they make a strong case for the importance of these issues:  They worry that the U.S. experience post-9/11 might be exported--that other democracies might similarly take up the same kinds of extraordinary powers that our own President claimed in the war on terror.

This article is a wonderful primer on the issues: It provides the big-picture points clearly and concisely, leaving the details for the authors' other work (also on their ssrn pages here and here, except their book, linked above).  I highly recommend it for anyone teaching or studying extraordinary powers in crises.

SDS

Saturday Evening Review: Pardons

Taking a bit of a break from grading con law exams, I heard an interesting segment on the NPR program "On the Media" concerning presidential pardon powers.  An MP3 file of the program is here (with any luck) and the website is here (the story "beg your pardon" allows access to MP3 file).  Thus, this week's Saturday Evening Review is less a "read" than a "listen" - - - as befits eyes tired from reading exams.

But after a bit of rest, the program led me to an interesting website Pardon Power maintained by P.S. Ruckman, Jr., Associate Professor of Political Science at Rock Valley College in Illinois.   Ruckman's blog mentions the "On the Media" story and has a bit to say about how he was quoted.  It's also pretty comprehensive - looking at gubernatorial pardon power as well.  But I must say I found the most interesting post on Ruckman's blog his "Presidential Pardon Watch List."  No surprise that the list includes  Scooter Libby, Bernard Kerkick, Ted Stevens, and Jeffrey Skilling, though I was more interested to see Martha Stewart and John Walker Lindh included. 

One of the best pieces of legal scholarship I've seen on the pardon power is by Mark Strasser, a ConLawProf at  Capital University Law School.  In The Limits Of The Clemency Power On Pardons, Retributivists, and The United States Constitution, 41 Brandeis L.J. 85 (2002), Strasser observes that while there is often much criticism about particular pardons, there is little consensus about "which uses of the pardon power are proper or appropriate."   Especially striking is Strasser's discussion of the possibility of a presidential "self-pardon":

      One issue that has received some attention is whether a President would be able to issue a pardon to himself. While there clearly is something unsettling about such an idea, at least some of the analyses offered regarding the reasons there cannot be such a right are unpersuasive. For example, some commentators reject that the President can pardon himself because, allegedly, that would make him his own judge. Yet, the Executive when issuing a pardon need not be acting as a judge, and there is no requirement, for example, that the President only give pardons to the most deserving individuals. The President is permitted to issue a pardon to help his friends, even if doing so might appear unseemly, and it is not at all clear that the Constitution permits one to benefit one's friends but not oneself. In any event, it may be difficult to draw a line between benefiting one's friends and benefiting oneself, because the President might issue pardons to others in order to protect himself. Indeed, there is historical precedent for pardons being issued to individuals so that the Executive might avoid embarrassment. 

       Arguably, if the President issues a self-pardon, there is a sense in which he has been placed above the law. Yet, the same might be said were the President's successor to issue a pardon to the outgoing President. Certainly, there are some differences between a President issuing a self-pardon and a President waiting for the next in office to issue the pardon -in the latter but not the former case the President could not be sure that the pardon would be issued. Yet, that difference is not enough to counter the charge that the President has been placed in a “special” position. Further, the President is clearly in a special position even if unable to pardon himself, precisely because the President can issue pardons to those who work for him.

       Even if the President could issue a self-pardon, a separate issue is whether a President would do so. Where the President does not issue a pardon to himself, he is subject to the laws which he is accused of having broken. Further, there are limits on the pardon power: (1) the President can only pardon a crime that has already occurred rather than a crime that is either in process or to be performed in the future; (2) the President cannot issue a pardon in cases of impeachment; and (3) the President does not have the power to issue a pardon for a violation of state law. Thus, there are a variety of reasons to think that even if the President has the power to issue a self-pardon, the “government of the United States [might still be] ... termed a government of laws, and not of men.” 

Id. at 150-151 (footnotes omitted).   

The prospect of Bush pardoning himself seems remote, despite several stories I've seen in the "alternative" portions of the blogosphere.  However, who Bush does pardon will be interesting to "watch"  in the coming days.

RR

NYT Calls for Prosecutor in Detainee Abuse by Bush Administration

The NYT added its name on Thursday to the list of individuals and organizations calling for criminal prosecution of high-ranking Bush administration officials for abuse of detainees.  The lengthy editorial comes in the wake of the release of portions of the bi-partisan Senate Armed Services report on torture.  I posted on this last week, and included a link to the released portions of the report, here.

The NYT:

A prosecutor should be appointed to consider criminal charges against top officials at the Pentagon and others involved in planning the abuse.

Recognizing that the Obama administration is unlikely to pursue this course, the Times calls for an independent panel to investigate detainee abuse and other illegalities--TSP, e.g.--by the Bush administration.

SDS

U.S. to Release Three to Bosnia

Judge Richard J. Leon of the U.S. District Court for the District of Columbia last month ordered the release of five Algerians (with Bosnian citizenship), finding insufficient evidence that they were "enemy combatants"; I posted here.  Now the NYT reported this week that the Bush administration is preparing to release three of them to Bosnia. 

Why not release all five?  According to the Times, one of them--Boumediene himself, the detainee who gave his name to last term's famous decision ruling that the constitutional privilege of habeas corpus extends to Guantanamo detainees--lost his Bosnian citizenship while in detention over questions about how he obtained it.  The fifth may be caught up in more administration monkey-business; we've already seen plenty in the case; the NYT:

The case against the six men [only five of whom Judge Leon ordered released] offered the latest example of the administration's pattern of changing strategy in its legal defense of the detention camp.  On the eve of the hearing before Judge Leon, the Justice Department said it was abandoning its claims about the embassy bombing plot.  Instead, it claimed in court that the men had been planning to go to Afghanistan to fight Americans.

SDS

United States Senate - updates

It's almost Winter Solstice and the 2009 Senate is still unsettled - - - with three seats as yet undetermined.

[There are four, see update on Colorado here]

First, there is the still-no-definite-result in the election in Minnesota between incumbent Republican, Norm Coleman, and Al Franken, the Democratic challenger.  As the New York Times reports here, the contest remains too close to call, with the state Canvassing Board (Secretary of State and four judges) still interpreting squiggles and scribbles  - - - an image of a problematical ballot provides a good illustration.  The Minnesota Supreme Court has meanwhile been considering the issue of whether 1600 absentee ballots have been counted twice;  the Minneapolis Star-Tribune here, with the Canvassing Board conducting a hearing on the same issue today, story here.  Favorite quote from the story by Mike Kaszuba for the Star-Tribune:

The hearing in a packed room began with Justice Paul Anderson testily responding to Roger Magnuson, the lead attorney for Coleman, who compared Minnesota's recount to the 2000 presidential election dispute that focused on the counting of ballots in Florida. "This is not Florida," said Anderson.

Second, there is the uncertainty surrounding a Senate seat for Illinois once occupied by President-Elect Obama. Ordinarily, the state governor would appoint someone to fill the vacancy, but Governor Blagojevich has been indicted based in part of allegations about that very Senate seat being "for sale." The Illinois Supreme Court rejected the petition filed by the state attorney general "without comment" - - - story by Rick Pearson  with pdf copies of orders on the Chicago-Tribune blog here.  Hearings on impeachment before the state legislature and a vigorous defense make for dramatic reading, among the many stories is this morning's in the Chicago tribune here.

Last, and certainly not least, is the New York Senate seat occupied by Hillary Clinton, who would vacate it if she is confirmed as Secretary of State.  David Paterson, New York's Governor (who assumed the position after the former-governor succumbed to scandal), has the power to appoint someone to fill the vacancy.  The newest contender seems to be Caroline Kennedy.  Kennedy's seeking the seat has prompted many letters, blog entries, and op-eds, but this brief bit from a New York Times story captures the controversy:

With no prior experience in elected office, Ms. Kennedy is setting out to demonstrate that she is ready to handle the rigors of New York politics. Yet her allies fear that to appear to campaign openly would appear presumptuous and provoke Mr. Paterson, who had already signaled his worry, before Ms. Kennedy made her interest clear on Monday, that the jockeying over who would succeed Mrs. Clinton had become undignified.

"Undignified."  Hmm......

RR

Marshall and Beermann: Give Obama Access to OLC Memos

Professor William Marshall (UNC) and Professor Jack Beerman (BU) published an editorial earlier this week in the News & Observer (North Carolina) criticizing AG Michael Mukasey's refusal to turn over certain OLC memorandums to the Obama team.

According to Marshall and Beerman, Mukasey refused to turn over the memos because transition team members are not part of the government and because other agencies have an interest in some OLC memos. 

As Marshall and Beerman point out, these are clearly bogus reasons.  The former reason is simply wrong: "being an existing member of the government is not a precondition for review of classified materials."  And the latter reason undermines the new administration's ability to transition all agencies.  Marshall and Beerman:

The fact that another agency may have some interest in the matter does not mean the relevant documents should be shielded from a new administration--which needs to know the contents of the memoranda, regardless of outside agency inerests.  And Mukasey's answer seems to forget that the transition applies to all agencies.  Even if the Defense Department, for example, has some interest in an OLC memorandum, so does the new administration for whom the document may be critical for assuring preparedness at both OLC and Defense.

(I'd add that this justification is plainly inconsistent with the Bush administration's own incessant reliance on the unitary executive theory by arguing that agency interests are severable with respect to the incoming administration.)   

The authors argue that the present administration's refusal to share the OLC memorandums violates the President's oath and the Take Care Clause.  Read the full editorial here.

SDS

Tamm: Hero or Criminal?

Michael Isikoff asks this question in his Newsweek article this week on Thomas Tamm, the former Justice Department attorney who blew the whistle on--or, depending on who you talk to, leaked--the NSA's warrantless surveillance program and its violation of the FISA.  Tamm told the NYT about the program, leading to the famous December 16, 2005, article that blew the lid off it. 

Isikoff reminds us of the widespread criticism of the program in the wake of the NTY article:

The story--which the Times said relied on "nearly a dozen current and former officials"--had immediate repercussions.  Democrats, including the then Sen. Barack Obama, denounced the Bush administration for violating the FISA law and demanded hearings.  James Robertson, one of the judges on the FISA court, resigned.

And what was the administration's first reaction to this criticism?  Revise or retract the program?  Get Congressional approval?  Discipline those responsible?  (Well clearly not this, as the President himself was responsible.)  None of the above.  Instead:

on Dec. 30, the Justice Department announced that it was launching a criminal investigation to determine who had leaked to the Times.

Now there's nothing new about an administration investigating and charging those who blow the whistle on illegal activities (rather than investigate or reevaluate the illegal activities themselves).  You may remember another whistleblower whose case was eerily similar to Tamm's (and on which Isikoff also reported):  Jesselyn Radack was fired, blacklisted, and investigated for revealing that as a legal adviser in DOJ's Professional Responsibility Advisory Office she advised the DOJ Terrorism and Violent Crime Section that it was not proper for the FBI to interview John Walker Lindh without his attorney.  (Radack's e-mail advice mysteriously disappeared after the FBI interviewed Lindh against her advice; it subsequently turned up in Newsweek, leading to the reprisals.)

The Obama administration will have to deal with the Tamm case--along with the other hold-over issues from the Bush administration.  A key consideration for the Obama team:  Whether the whistleblowers (ironically) will be the only individuals held to account in the Bush administration's various sketchy and illegal programs in the war on terror. 

It's looking increasingly likely that nobody else will be held to account.  Between statutory immunities and politics, criminal charges against Bush administration officials are all but ruled out.  And the Supreme Court last week seemed to move in the direction of closing the window for civil liability in the oral arguments in Ashcroft v. Iqbal.  That case involves the pleading standard for civil Bivens actions against high-ranking administration officials acting in the wake of 9/11 for condoning subordinates' illegal behavior (in that case, racial and religious discrimination).  Justices' comments and questions at oral argument suggest that several (even  most) would endorse a heightened pleading standard against high-level officials, or against officials acting in the wake of 9/11, or both.  A heightened pleading standard could, in effect, cut off such civil actions, as plaintiffs' complaints would be dismissed before plaintiffs could gather evidence to meet the standard (assuming they ever could gather such evidence).

With criminal and civil responsibility for high-level officials close to off the table, we'll see what the Obama team does with whistleblowers.  (Brian Tamanaha at Balkinization makes a good case for treating them as heroes.)

We'll keep an eye on developments on both the whistleblower and high-level-official sides.

SDS