Constitutional Law Prof Blog

Colombia Constitutional Court, Same-Sex Marriage, and Intersex Children: Saturday Evening Review

This week, Colombia's Constitutional Court ruled that same-sex couples are constitutionally entitled to the same status as opposite-sex couples under Colombia's common law marriage scheme. 

The case was brought by the organization Colombia Diversa, and the opinion (in Spanish) is available from the organization's website and as a pdf here.   An English press release on the website describes the ruling (available here) and also notes that  "Uruguay and Colombia are the only countries in the Western Hemisphere that
recognize same-sex civil unions."

Colombia's Constitutional Court is also a pioneer in another, less well-known, aspect of constitutional rights on the basis of gender and sexuality.  An article by Kate Haas, Who Will Make Room For The Intersexed?, 30 American Journal of Law & Medicine, 41 (2004), confronts the issue of the constitutional rights of children born with so-called "intersex" conditions, which are sometimes referred to as "ambiguous" or even "nonconforming" genitalia.  As Haas explains:

In 1995, Colombia's highest court, the Constitutional Court, addressed the legality of performing gender reconstruction surgery on children. The Constitutional Court has issued three decisions on the constitutionality of genital reconstruction surgery . . . . The first case that the court considered was brought by a teenage boy who had been raised as a girl  . . . .  Several years after this first case, the court decided two other cases involving children born with intersex conditions.  These three cases have limited parents' rights to choose genital reconstruction surgery for their children in Colombia.

The Colombia Constitutional Court balanced the constitutional rights of parents "over" their children (a concept familiar to US ConLawProfs from cases such as Pierce v. Society of Sisters and Yoder v. Wisconsin) with the constitutional rights of individuals, including minors, to bodily autonomy.  Haas' article discusses the Colombia Constitutional Court's three cases in depth and provides a context for understanding the issue of intersexuality, especially in the constitutional and human rights framework.  I think it is an excellent article, but I'll admit to some bias because Kate Haas wrote the piece while a student at CUNY School of Law.   And while it is not the only article now available on intersexuality - - -the Intersex Symposium issue, 12 Cardozo Journal of Law & Gender 1-366 (2005), is especially noteworthy - - - it contains an unparalleled  discussion of the Colombia Constitutional Court's cases on intersexuality.

RR
(with special thanks to Ricard Pla for the Colombia Diversa materials).

President Bush Re-Directs Rove, Miers Not to Appear Before Congress

Counsel to former President Bush Fred Fielding wrote letters last week to counsel for Karl Rove and Harriet Miers directing them not to appear before, and not to provide information to, Congress in response to Congressional subpoena in the investigation into the firing of U.S. attorneys, Michael Isikoff reports in Newsweek.  The letters are here and here. 

We knew, of course, that President Bush directed Rove and Miers not to appear before Congress--I posted most recently on this here--and we knew that the Bush OLC ruled that Rove and Miers enjoy absolute (yes you read that right: absolute) executive privilege.  These letters appear to be a post-presidential attempt to provide additional legal cover for Rove and Miers.  The only difference between these most recent letters and Bush's previous directions:  Bush is now out of office, thus weakening, but not destroying, Bush's and Bush officials' claims of executive privilege.  (See my previous post here.)

The letters have no legal significance.  They cannot provide cover any more than Bush's previous directions themselves or the prior Bush OLC memo.  They merely reiterate the Bush administration position on executive privilege--that the President and close advisers enjoy absolute executive privilege in respect to Congressional subpoenas--and re-direct Rove and Miers not to testify.

So the letters are interesting only because of their legal analysis (which itself is a reflection of the analysis in the Bush OLC memo).  Both letters cite the July 10, 2007, Bush OLC memo, linked above, concluding that the President and immediate advisers are absolutely immune from compelled testimony before Congress, and that the immunity cannot be outweighed by any Congressional interest.  The Bush OLC memo--and Fielding's most recent letters--in turn generously quote a September 16, 1999, Clinton OLC memo, authored by then-AG Janet Reno.  That memo concluded that "[t]he President and his immediate advises are absolutely immune from testimonial compulsion by a Congressional committee."

There are a couple differences between the recent letters and Reno's memo.  For one, the Congressional investigation that sparked Reno's memo dealt with a matter--executive clemency--that is uniquely within the constitutional authority of the President, and over which Congress can neither legislate nor appropriate.  Reno concluded that Congress lacked authority to investigate the matter, and it therefore couldn't compel testimony by presidential advisers. 

But Reno also concluded that there was a separate and independent basis for executive privilege in that case:  "Executive privilege is assertable in response to a congressional subpoena seeking testimony by the Counsel to the President concerning the performance of official duties on the basis that the Counsel serves as an immediate adviser to the President and is therefore immune from compelled congressional testimony."  Reno wrote that the privilege is absolute, but she alternatively concluded that the privilege would outweigh any Congressional interests (in examining the advice the President received with regard to clemency) under a balancing approach.

The other difference is that Fielding wrote his letters after Bush left office.  Reno wrote her memo while Clinton was still in office. 

So do the differences matter?  Start here:  The claim of absolute executive privilege is based upon separation-of-powers considerations that are very similar to those in play in U.S. v. Nixon.  The Court in that case, of course, ruled that the privilege gives way to certain other interests under a balancing approach.  The privilege was not--and is not--absolute; it is subject to a balancing test.

Under a balancing test when the privilege is asserted before Congress, a Congressional interest in a matter uniquely in the President's bailiwick is certainly weaker than a Congressional interest in a matter within its own bailiwick.  Clemency falls into the former; politicized firings at DOJ fall into the latter.

And finally the privilege is stronger for a sitting President than for a former President.

For all these reasons, Rove and Miers state a much weaker claim for executive privilege.

The Obama Justice Department will weigh in on these issues soon enough in the House's case against Miers and Bolton.  (See my post here.)  We'll stay on top of this.

SDS

Obama and Federalism

Today's NYT contained an enlightening article on the Obama administration's view of federalism.   The Times describes the approach as "progressive federalism" or "cooperative federalism."  As support, the Times offers Obama's pledge earlier this week to allow states (California) to create emissions standards that are more stringent than those imposed by the federal government.    The best description of the Obama Administration's approach is given by UNC law Professor William Marshall who states:

“The pro-regulatory folks realized in the last eight years that the old line on federal power being the only good power wasn’t correct . . . “It doesn’t mean you abandon the federal regulatory process — you don’t, of course,” Mr. Marshall said. “But you treat it as a floor and not a ceiling.”  He added, “The Obama administration is signaling that state regulations may very well complement federal regulations, and they can both work together to achieve important goals.”

Improved federalism could have a multitude of benefits, especially in our new, softer economy.  The article is well worth the read, as the issue is one that the administration will no doubt be confronting frequently in the first 100 days and beyond.

NLS

Heller, incorporation, the Second Circuit, and nunchaku

In another opinion refusing to incorporate the Second Amendment to the states, the Second Circuit considered a challenge to a charge of possessing a chuka stick in violation of N.Y. Penal Law § 265.01(1). 

The New York statute defines a “chuka stick” (or “nunchaku”) as any device designed primarily as a weapon, consisting of two or more lengths of a rigid material joined together by a thong, rope or chain in such a manner as to allow free movement of a portion of the device while held in the hand and capable of being rotated in such a manner as to inflict serious injury upon a person by striking or choking. Id. § 265.00(14).

The Second Circuit opinion does not discuss originalist perspectives on nunchakus, although that would be interesting to contemplate!  Instead, the brief per curiam opinion, Maloney v. Cuomo, available as pdf here, cites Presser v. Illinois, 116 U.S. 252, 265 (1886), in support of its conclusion that "the Second Amendment applies only to limitations the federal government seeks to impose" on any Second Amendment right.   

The panel consisted of Judges Rosemary Pooler, Robert Katzmann, and Sonia Sotomayer, who has been mentioned lately as a strong contender for a Supreme Court appointment by Obama. 

RR

John Yoo, torture, and the continuing saga

John Yoo, formerly in the Justice Department from 2001-03, and now a law professor at the University of California, Berkeley and a visiting professor at Chapman Law School, has an op-ed in Washington Post  entitled "Obama Made a Rash decision on Gitmo," and supporting the practice under  "under President George W. Bush,"  when

the CIA could hold and interrogate high-value al Qaeda leaders. On the advice of his intelligence advisers, the president could have authorized coercive interrogation methods like those used by Israel and Great Britain in their antiterrorism campaigns. (He could even authorize waterboarding, which he did three times in the years after 9/11.)

 

Yoo continues, contrasting President Obama, who 

ordered that al Qaeda leaders are to be protected from "outrages on personal dignity" and "humiliating and degrading treatment" in accord with the Geneva Conventions. His new order amounts to requiring -- on penalty of prosecution -- that CIA interrogators be polite. Coercive measures are unwisely banned with no exceptions, regardless of the danger confronting the country.

Eliminating the Bush system will mean that we will get no more information from captured al Qaeda terrorists. Every prisoner will have the right to a lawyer (which they will surely demand), the right to remain silent, and the right to a speedy trial.

The first thing any lawyer will do is tell his clients to shut up. The KSMs or Abu Zubaydahs of the future will respond to no verbal questioning or trickery -- which is precisely why the Bush administration felt compelled to use more coercive measures in the first place. Our soldiers and agents in the field will have to run more risks as they must secure physical evidence at the point of capture and maintain a chain of custody that will stand up to the standards of a civilian court.

Interestingly enough in light of Yoo's comments regarding layers representing clients, Obama is - - - in a way - - - representing John Yoo.  As Politico.com reported and WSJ blog also noted, the lawsuit by Jose Padilla against several in the Bush Administration, including Yoo, is being defended by the Obama DOJ.  The complaint is available on the WSJ blog here with background on Yale Law School's involvement on behalf of Padilla here.

RR
 

Indefinite Detention of Lawful U.S. Resident: Amici Weigh in on Al-Marri

A spate of new amicus briefs came in yesterday in Al-Marri v. Spagone, including the constitutional law professors' brief on which I posted here.  The case tests the President's authority to indefinitely detain a lawful U.S. resident in the United States, without charges, as an enemy combatant.  The ACLU collects the briefs here; the Brennan Center for Justice collects other litigation documents, including lower court filings, here.

Among the more interesting:

-Experts in the law of war argue that al-Marri was not captured in a theater of "armed conflict" and was not alleged to have engaged in "armed conflict," and that the laws of war, even if they apply, do not allow the executive to detain al-Marri.

-National security and counterterrorism experts argue that this kind of detention threatens to undermine national security.

-CATO, the Constitution Project, and the Rutherford Institute argue that al-Marri's detention is authorized by neither the AUMF nor inherent Article II authority.

-Civil War historians argue that al-Marri's case is indistinguishable from Ex Parte Milligan.

-Scholars of Ex Parte Quirin argue that Quirin has been undermined and should be limited to its facts or reconsidered.

SDS

Flashback: Justice Brandeis nominated

As Andrew Glass on politico.com reports:

On this day in 1916, President Woodrow Wilson nominated Louis Brandeis for a seat on the Supreme Court. After a confirmation battle that lasted more than four months, Brandeis became the first Jewish justice to serve on the high tribunal.

RR

ACLU Seeks OLC Memos

The ACLU asked the Office of Legal Counsel today for Bush administration legal memorandums relating to interrogation, detention, rendition, and warrantless surveillance.  The letter is here; Wired reports here.

Meanwhile, Dan Nguyen and Christopher Weaver at ProPublica have put together this comprehensive (so far as we know) chart on publicly available and unavailable Bush administration OLC memos relating to the war on terror.  This is a fantastic resource; take a look.  (I posted recently here and here that the Bush administration had been releasing some of its previously secret OLC memos in its waning days.  Just a couple of these recently released memos deal with issues in the war on terror.)  Nguyen and Weaver's work shows us just how much of the legal justification for the most controversial Bush administration policies remains secret.

President Obama has already strongly signaled his intent to open up his administration.  Let's hope he gives serious consideration to the ACLU request and releases the many memos that need not--and should not--remain secret.

SDS

Law Professors File Amicus Brief in Al-Marri

A group of leading constitutional law professors filed an amicus brief today in Al-Marri v. Spagone, the case testing the President's authority to indefinitely detain, without trial, a lawful U.S. resident as an enemy combatant within the United States.  I posted on the case most recently here.  Many thanks to SCOTUSblog for posting the brief.

The brief--filed by Howe & Russell and the Harvard Supreme Court Litigation Clinic--argues that this constitutes a "significant expansion of traditional executive detention powers," but that Court need not address that constitutional issue.  Instead, the Court should adopt of rule of clear Congressional authorization for such detention (which the AUMF doesn't provide).  If Congress specifically authorizes this kind of detention, then the Court might later rule on the constitutional question.

The brief:

Accordingly, the common-law courts that developed the concept of the enemy combatant as part of the law of war (which, in turn, influences the constitutional understanding of the scope of the government's detention power) simply did not have occasion to "confront[] cases with close parallels to this one."  Boumediene.  The Court is thus left with the question whether suspects in the "war on terror" are sufficiently similar to combatants in a traditional war (e.g., Quirin and Hamdi)--and sufficiently dissimilar to individuals with a recognized right to the protections of the criminal justice system (e.g., Milligan, McVeigh, and members of the Mafia)--to justify treating them under the rules developed for traditional wars.

As discussed below, there is no need for this Court to resolve that question in this case, and amici take no position on it.

This approach is conservative but prudent, if the case goes to the Court--i.e., if the administration doesn't moot it by moving al-Marri to a regular federal prison and charge him in regular Article III courts.  This is a big if:  The administration has already signaled its intent to change the way the government deals with Guantanamo detainees, including trying some (or all) in Article III courts.  It could--I've argued should--make this same move with al-Marri.  But if it doesn't, and if the case proceeds, the professors' position punts the issue back to the political branches, which now are unlikely to specifically sanction this kind of detention.  This could help shut down indefinite detentions of lawful U.S. citizens in the U.S. over the long haul, but it leaves al-Marri in limbo until Congress moves (or doesn't) on the issue.

But given the administration's signal with Guantanamo detainees (to move at least some of them to the regular Article III system), the better course would have been to argue that al-Marri's detention is categorically unconstitutional, with or without Congressional authorization.  This approach would have preserved this much stronger claim in the record, even as the case goes moot (assuming that the administration moots it).  If it doesn't go moot, the stronger claim is a signal to Congress.

Politics aside, this is a must-read and a wonderful supplement for your classes on wartime authorities.  Take a look.

SDS

House Judiciary Committee Chair Conyers Subpeonas Karl Rove

Rep. John Conyers, Chair of the House Judiciary Committee, issued a subpoena last week to Karl Rove requiring him to testify before the Committee in its investigation of the Bush administration's politicization of the Justice Department, including the firing of nine U.S. attorneys.  The subpoena is here; Politico has an excellent report here; I previously posted on last Congress's Senate Judiciary Committee subpoenas and contempt resolutions here, the House's contempt case against Bolton and Meiers for failing to testify (asserting executive privilege) here, and more generally about post-presidency claims of executive privilege here.

The difference with this new subpoena, of course, is that Bush has now left office, and Rove was an official in a prior (not current) administration.  The difference weakens any claim of executive privilege.

Executive privilege for former officials is governed by Nixon v. Administrator of General Services, the case in which former President Nixon sought to protect his presidential materials from screening by the Archivist.  The Court ruled in that case that while executive privilege outlasts a presidency--and therefore may be asserted by a former President--the screening process in that particular case had sufficient protections to ensure executive confidentiality and thus to override Nixon's claim of executive privilege. 

The Court arrived at this conclusion in part because neither President Ford nor President Carter supported the claim.  Jack Balkin, in a thoughtful and balanced post at Balkinization, argues that this puts the onus on President Obama: If Obama supports the claim, Rove is more likely to win in court; if Obama opposes it, Rove is more likely to lose.

But there's more to the Court's analysis in Nixon v. Administrator than subsequent Presidents' sanctions of the claim.  In addition to--and perhaps even more than--subsequent Presidents' views, the Court looked at processes in place to protect executive confidentiality.  The Court in Nixon v. Administrator, for example, compared the processes in place in that case to the in camera processes in United States v. Nixon and concluded that the processes in the former were as protective as those in the latter.  Moreover, they were minimally intrusive.

And the Court in Nixon v. Administrator also made much of the fact that Nixon's claim was against his own branch of government--the executive--not a coordinate branch, as in U.S. v. Nixon.

With these other considerations, any executive privilege claim against the most recent subpoena could be an interesting constitutional question.  The protections in a Congressional investigation are probably less than in an Archivist's screening (as in Nixon v. Administrator) or a federal court's in camera review (as in U.S. v. Nixon), and the subpoena is probably more intrusive.  Moreover the subpoena comes from a coordinate branch.  But on the other side, the subpoenaed material goes to support a Congressional investigation, not a criminal trial (as in U.S. v. Nixon). 

Obama's position on Rove's assertion of executive privilege will certainly matter--it may even be the tipping factor--but only along with these other considerations.  And if Obama's recent practices promoting open government are any indication, he's likely to oppose Rove's claim of executive privilege in any event.

SDS

New Congress brings hope of change to D.C. . . . literally

Readers have no doubt been keeping abreast of the stories outlining the numerous ways in which the change spurred by the new administration is playing out in the legal arena.  Residents (and former residents, and friends and family of residents) of the the District of Columbia will be pleased to know that the change might spread beyond Capital Hill and throughout the city.

Today, Katrina Vanden Heuvel of The Nation reports that there is a good chance that the "District of Columbia House Voting Rights Act of 2009 will pass Congress.  The Bill, as its title suggests, would finally give DC residents a voting representative in Congress.  The article is interesting because it almost presupposes that the bill will pass, and therefore focuses on considering the legal challenges such a bill will face if enacted.   The primary argument seems to be that the Constitution would not permit any entity that is not "a State" to have a vote in Congress.  However, the other side has a powerful counter-argument.  Here's a snippet from Rep. Steny Hoyer (D-MD):    "If you oppose this bill, you need to tell us: Just what does our country gain by treating the people of Washington, DC differently from America's other 300 million?"   

It could be a great equal protection argument.   Even if we set aside the racial aspect (non-whites outnumbered whites two-to-one in the District in the 2000 census) and potential fundamental rights claims, in this day and age, it would seem that denying District residents a voice in Congress cannot pass even rational basis review.   On the legitimate purpose prong, what is the legitimate purpose at this point?  Even if we harken back to the rationale of the Founding Era, advocacy group D.C. Vote quite convincing refutes those arguments:

Federalists argued that exclusive legislative jurisdiction over the seat of government was needed so the federal government would not be dependent on a state for security in case of mutiny or disruption. Samuel Osgood, a member of the Board of Treasury, said, "It has cost me a sleepless night to find out the most obnoxious part of the proposed plan, and I have finally fixed upon the exclusive legislation in the Ten Miles Square. What an inexhaustible fountain of corruption are we opening?" James Madison argued that the Constitution should be adapted despite concerns because District citizens "will have had their voice in the election of the government which is to exercise authority over them; as a municipal legislature for local purposes, derived from their own suffrages, will of course be allowed them." Alexander Hamilton proposed an idea that wasn't adopted - to let DC residents vote in the state from which they had previously belonged (Maryland and Virginia) until their population grew, at which time Congress would give DC voting representation in that body. The historical record indicates that the founders were concerned about the rights of District citizens and left open the possibility that future generations could address the inequity. However, at the time, getting approval for the federal Constitution was more important than assuring national representation for District citizens.

Assuming for the moment that the neutrality of the Capitol is a legitimate purpose, is there any rational basis for denying the vote while continuing to tax the non-voting residents?  No one has ever conclusively proven what the harm to the nation would be if residents of D.C. were allowed to vote.  The basic argument seems to be, "It's always been this way, so it should stay this way." Can that argument pass constitutional muster at this point in time?  After Moreno, it would appear the answer is no because the decision seems so arbitrary.  Since there are so few facts supporting continued denial of this basic right to District denizens, a court could follow Moreno and Cleburne and simply say the rule is no longer rational, and the law would pass constitutional muster.

This promises to be an interesting story.  We'll follow it and keep you updated!

NLS

What to do with Detainees in Bagram, Afghanistan

The NYT reported today on President Obama's decision about what to do with 600 prisoners at the U.S. airbase in Bagram, Afghanistan.  The report:

President Obama must now decide whether and how to continue holding the men at Bagram, most of them suspected of being Taliban fighters. Under the laws of war, they are being held indefinitely and without charge. He must also determine whether to go forward with the construction of a $60 million prison complex at Bagram that, while offering better conditions for the detainees, would also signal a longer-term commitment to the American detention mission.

The decision comes against the backdrop of detainees' cases in the D.C. District, testing whether habeas extends beyond Guantanamo--see Boumediene v. Bush--to Bagram.  (I posted on these cases here.)  Judge Bates gave the administration until February 20 to "refine" its legal position in the case. 

The direction of the D.C. Distrct cases could impact the administration's decision on the Bagram facility:  If habeas extends to Bagram, maintaining the facility would become a much greater hassle.  On the other hand, it'll take some time for these cases to work their way to the Supreme Court (if it even takes them up), and in any event the detainees may very well lose:  The fragile 5-member Boumediene majority may not be so sympathetic to a habeas claim of detainees at a truly overseas location and where the U.S. exerts less control than Guantanamo. 

We'll keep an eye on any administration moves and the D.C. habeas cases.

SDS

House Bailout for Illinois Conditioned Upon Blagojevich Removal

The House bailout plan--H.R. 1--contains an extraordinary provision apparently designed to deny funds to Illinois as long as embattled Governor Rod Blagojevich has any control over them (!).  Read here:

None of the funds provided by this Act may be made available to the State of Illinois, or any agency of the State, unless (1) the use of such funds by the State is approved in legislation enacted by the State after the date of the enactment of this Act, or (2) Rod R. Blagojevich no longer holds the office of Governor of the State of Illinois.  The preceding sentence shall not apply to any funds provided directly to a unit of local government (1) by a Federal department or agency, or (2) by an established formula from the State.

H.R. 1, sec. 1112.

Whatever we think about Blagojevich, this is a clear federal impingement on the operations of a state government and sets a very bad precedent.  (Blagojevich will certainly be removed from office soon, thus rendering the issue moot.  This language therefore won't be tested and will remain on the books (absent an amendment) as a bad precedent for the federal government intruding into the internal operations of a sovereign state.)

The spending condition fails under South Dakota v. Dole, because it bears no relationship to the federal interest in the bailout program.  But even if we stretch things to say that the condition relates to a federal interest in fiscal responsibility (because Blagojevich simply can't be trusted with any public money), the condition fails under Coyle v. Oklahoma.  Remember that case?  Justice O'Connor cited it in her dissent in Garcia v. San Antonio Metropolitan Transit Authority for the claim that some federal intrusions into the operations of state governments--in Coyle, the federal government dictating the location of the state capital--"undermine the state sovereignty inherent in the Tenth Amendment."  Here, no different: The federal bailout spending requirement that Illinois remove its governor--or, equally bad, that it time its legislation to meet federal standards--simply goes too far. 

SDS

Inaguration Double Post, Part II

While I was in Washington, I had the great fortune to spend some time in the Smithsonian's National Museum of American History.  While the exhibits there showcase all kinds of Americana, the exhibit on The American Presidency (online exhibit here) really stood out, especially during Inauguration Week.  While touring the exhibit, something caught my eye, and I immediately knew that I had to share it with my fellow constitutional law profs. 

The presidency exhibit examines many aspects of the duties of the president (e.g., commander in chief) and also examines the checks on the presidency.  As con law professors, you would not be surprised to see Congressional Acts, Supreme Court decisions, and Impeachment listed as possible limits on the president's authority.  However, the Smithsonian exhibit lists two additional checks on the Presidency - public opinion and the press.  With respect to the public, the exhibit states:

"Only by maintaining public support does an administration sustain its influence. Popular presidents have the ability to promote their policies, pressure members of Congress, and defend against attacks. Conversely, should a president fall sharply in opinion polls, his administration is weakened."

The proposition stated by the museum is not outlandish by any stretch.  However, recent experience teaches us that the role of public opinion may be overstated for at least five reasons.   First, how do we properly define what the public wants, or more specifically, when enough of the public has spoken to warrant action?   While words like "mandate" are often used to legitimize a presidential agenda, upon re-election in 2004, the former Bush adminstration declared that it had a mandate, though the margin of victory was far from overwhelming.  When is a mandate a mandate?  When is a majority a majority?

Second, public opinion can be very fickle.   While a majority of Americans now oppose the American involvement in Iraq, in 2002, a majority supported sending troops into Iraq.  Moreover, a majority also believed that Saddam Hussein was somehow connected to the tragedy of September 11, which is patently not true.  From this experience, we know that if the public is to hold the executive accountable, it must be informed.  (More on this in a moment.)   

Third, the public opinion theory likely assumes that the president has reason to care what the voters think.  But does a re-elected president in the sunset of a second term have the same motivation to impress as a president in the first 100 days of his or her administration?  If recent history is correct, the answer is no.  During an ABC interview on the fifth anniversary of the Iraq entanglement, VP Cheney had this to say:

CHENEY: On the security front, I think there’s a general consensus that we’ve made major progress, that the surge has worked. That’s been a major success.

RADDATZ: Two-third of Americans say it’s not worth fighting.

CHENEY: So?

RADDATZ So? You don’t care what the American people think?

CHENEY: No. I think you cannot be blown off course by the fluctuations in the public opinion polls.

So, the former administration is "Exhibit A" in the case against the public opinion theory.  Public opinion can only be a check to the extent that those in power care what the public thinks. 

Fourth, in "Exhibit B" from the 43 administration, it is not hyperbole to state that George H.W. Bush might be the least popular president in recent memory.  However, contrary to the Smithsonian's point, his administration did not appear weakened in any way.  Despite public resistance to the Iraq involvement and Guantanamo Bay, Bush promised to "stay the course."  If public opinion were really that critical, wouldn't we have seen some tempering of the least popular Bush doctrines as his popularity ebbed? 

Finally, what is the press's role in all of this?  According to the Smithsonian, "The actions of the president are closely scrutinized by an enormous press corps . . . Keeping a watchful eye on the chief executive, the press helps to curb presidential power that threatens to exceed its legal limits or the wishes of the public."  (emphasis mine).  However, this theory assumes that the press is actually doing its job.  However, the biggest casualty of the Bush years might have been hard-nosed journalism.  The New York Times even admitted that it had done a poor job in covering the facts in the lead-up to Iraq.  When the people are relying on the press for information, and the press is asleep at the wheel, we end up with an uninformed populace that could potententially support clear constitutional abuses. 

The potential lesson here is that perhaps legal scholars should spend more time focusing on the non-legal and extra-judicial methods of influencing a president (or Congress).  If recent history is any indication, we can learn much from this exploration.  Through our study, we might come to understand the lapses of the past and prevent future generations from repeating our mistakes.

NLS

Inauguration Double Post

Hello all!  Last week, I did not post, as I was in Washington, DC for the Inauguration Festivities.  It was something to behold.  As a citizen, it was remarkable to reflect on this peaceful change of power.  At the beginning of my Con Law I class, I tell my students that the Constitution - a "dusty old piece of paper" - warrants careful study because it is a living, breathing document.  I usually cite various news stories and current events to bolster the point, but being there on the Mall with 4 million other people brings the Constitution to life in a way that no text or news story can.   It's a poignant reminder of both tradition and change.  Tradition, as each president has taken the same oath, and change, as each new administration has a unique opportunity to shape our nation.  It likely sounds a bit trite, I'm sure, but I hope you feel the sincerity when I say that while I was out there, standing, waiting, it ocurred to me that it is the Constitution that makes it possible. 

Well, that was my first thought, at least.  As I continued to reflect, I found it even more remarkable that despite the fact that not everyone voted for our new president, there was never a doubt in the minds of those present that the transfer would be as smooth and orderly as the Constitution envisioned.   So, while the Constitution sets forth the order of things, the second thought was that it is really the American that make the Constitution work.  The Constitution says many things, but it never says that we as citizens must accept our political leadership.  And yet we do.  We do it time and time again, whether we are supporters of the new regime or members of the loyal opposition.  I beleive this idea applies with equal force to the popular acceptance of judicial opinions.  The third branch was given the least power, and yet remains a force to be reckoned with largely because the majority of the populace accepts even those decisions with which it disagrees.   Of course, I am aware of the growing movement against "activist" judges, but the fact that no Supreme Court decision has engendered a wave of sustained "massive resistance" in the last fifty years gives me hope.  Hope that whether we agree or disagree, as Americans, we value institutions over ideology, and we collectively hope that those institutions will endure, even when they frustrate us. 

NLS

Franklin on Facial Challenges and the Roberts Court

Professor David Franklin (DePaul Law) recently posted his excellent article Looking Through Both Ends of the Telescope: Facial Challenges and the Roberts Court on ssrn; it is also forthcoming in the Hastings Constitutional Law Quarterly.  In it Franklin explores facial (versus as-applied) challenges at the Roberts Court and persuasively argues that facial review isn't nearly so rare as we might expect, given the Roberts Court's renowned aversion to facial challenges.  Why?  Because facial review is increasingly tied to certain doctrines, and those doctrines are getting to the Court.

Franklin comes to this conclusion by way of what he calls "facial adjudication in as-applied clothing."  These are as-applied rulings that furtively--and sometimes not-so-furtively--impact the challenged law across the board, just as a facial challenge would.  The best example is from FEC v. Wisconsin Right to Life ("WRTL II") (overturning section 203 of the Bipartisan Campaign Finance Reform Act of 2002 in a facial challenge under the First Amendment); Franklin:

Not only did WRTL's as-applied challenge succeed, but the Court strongly suggested that from now on all challenges brought by organizations engaged in issue advocacy would succeed. . . .

[In concurring in the judgment] Justice Scalia went so far as to accuse his colleagues in the majority--Chief Justice Roberts and Justice Alito--of disingenuousness, noting that "seven Justices of this Court, having widely divergent views concerning the constitutionality of the restrictions at issue, agree that the [WRTL II] opinion effectively overrules McConnell without saying so," and tartly concluding that "[t]his faux judicial restraint is judicial obfuscation."

Justice Scalia was right.  WRTL II renders McConnell a practical nullity by laying out a test under which every realistically conceivable as-applied challenge to Section 203 will succeed, while at the same time purporting not to disturb the holding of McConnell, which upheld that provision against a facial attack.

But "facial adjudication in as-applied clothing" doesn't only lead to invalidation; it also leads to validation.  The best case here: Raich (upholding the federal Controlled Substances Act against an as-applied Commerce Clause challenge).  Franklin:

Raich, in short, facially validated the CSA for Commerce Clause purposes.  And given that the plaintiffs' activities in Raich were about as local and noncommercial as one can get and yet they still lost, it is not too far a stretch to conclude that the Court has in effect outlawed as-applied constitutional challenges under the Commerce Clause.

So what's the common theme among these facial-review cases?  The doctrine.  Particularly:

When the applicable doctrinal tests point the Court toward attributes that operate at the level of the statute--most notably legislative purpose--the resulting adjudication will likely be facial in nature.  Thus . . . substantive constitutional doctrine presses equal protection cases toward facial review, but the same can be said of cases in areas as diverse as the Commerce Clause, the Establishment Clause, and the sepration of powers.

This is a quite helpful way of thinking about--and predicting--the Roberts Court's treatment of facial challenges.  (A test-case for Franklin's theory is on its way to the Court now:  Northwest Austin Municipal Utility District v. Mukasey, testing Congress's authority to reauthorize section 5 of the Voting Rights Act, and upon which I've posted here and here.)  And it comes by way of an important insight and addition to the literature: The "facial adjudication in as-applied clothing" that operates both to invalidate and to validate.  This is an excellent read; I highly recommend it.

SDS

Seventeenth Amendment & Senators

Much in the news these days is the Seventeenth Amendment:

The Senate of the United States shall be composed of two Senators from each
State, elected by the people thereof, for six years; and each Senator shall
have one vote. The electors in each State shall have the qualifications
requisite for electors of the most numerous branch of the State legislatures.

When vacancies happen in the representation of any State in the Senate, the
executive authority of such State shall issue writs of election to fill such
vacancies: Provided, That the legislature of any State may empower the
executive thereof to make temporary appointments until the people fill the
vacancies by election as the legislature may direct.

This amendment shall not be so construed as to affect the election or term of
any Senator chosen before it becomes valid as part of the Constitution.

Two news sources - - - one the conservative blog townhall.com and the other the progressive magazine/blog The Nation - - - are reporting that Wisconsin Senator Russ Feingold plans to propose an Amendment to alter the Seventeenth Amendment.    As John Nichols, writing for The Nation, observes:

The practice of allowing governors to appoint senators conflicts, as well, with the Constitutional requirement that House vacancies always be filled by special elections.

Thus, while no one can sit in the House without first facing the voters, the new Senate will have at least four unelected members (holding Obama's old Illinois seat, Clinton's old New York seat, Vice President Joe Biden's seat and Interior Secretary Ken Salazar's Colorado seat). Though they lack ballot-box legitimacy, those senators will be able to cast equal votes to those of their 96 elected colleagues on matters of war and peace, economic renewal and social policy.

Nichols quotes Senator Feingold as saying, "I plan to introduce a constitutional amendment this week to require special elections when a Senate seat is vacant, as the Constitution mandates for the House, and as my own state of Wisconsin already requires by statute . . .  As the Chairman of the Constitution Subcommittee, I will hold a hearing on this important topic soon."

RR

Popular Constitutionalism?

In a provocative piece in the Jan/Feb issue of The ATLANTIC, entitled The Founders' Great Mistake, ConLaw Prof Garrett Epps of University of Baltimore School of Law says,

as Bush leaves the White House, it’s worth asking why he was able to behave so badly for so long without being stopped by the Constitution’s famous “checks and balances.” Some of the problems with the Bush administration, in fact, have their source not in Bush’s leadership style but in the constitutional design of the presidency. Unless these problems are fixed, it will only be a matter of time before another hot-rodder gets hold of the keys and damages the country further.

Bottom line?  Epp argues that Article II needs an overhaul.  He has some specific suggestions, including abolishing the electoral college and addressing the "unitary" executive. 

These suggestions might be the basis of an in-class exercise, either asking students to react to Epps' specific suggestions or to "brainstorm" suggestions of their own.  His piece also has an accessible, if necessarily somewhat superficial, history.  And, of course, it can serve to remind students that the very issues they are studying are also being discussed in the "popular media."

RR

Global Gag Rule Scholarship - Saturday Evening Review

President Obama's decision in his first days to reverse the so-called "global gag rule" or "Mexico City policy" barring international aid connected to abortion led me back to some of the excellent scholarship that has occurred in this area.  For ConLawProfs, the issue has always been a problematic one in terms of pure doctrine.  Roe v. Wade does not apply to foreign aid or women outside the United States, but does that mean the issue is not a constitutional one?  And what exactly is this "global gag rule" anyway?

Nina J. Crimm of St John’s Law School, in her article, The Global Gag Rule: Undermining National Interests By Doing Unto Foreign Women And NGOs What Cannot Be Done At Home, 40 Cornell Int'l L.J. 587 (2007), is a great place to start to look for an answer to these questions.   

Professor Crimm does an excellent job of providing the history of the global gag rule starting in the 1960s, discussing the national interests supporting it, and elucidating the harms to NGOs.   She briefly argues that the global gag rule could be unconstitutional under equal protection principles if it applied to US women.   Her main argument concerns the First Amendment and “unconstitutional conditions” doctrines based on funding, but again with the caveat if the “restrictions that are imposed on foreign NGOs were imposed on domestically formed NGOs.”   Thus, despite her carefully crafted constitutional arguments, her ultimate point is a non-constitutional one:

The United States holds itself up to the world as a model democracy based on fundamental and equal rights for individuals and organizations. Accompanying this role is the responsibility to permit abroad what must be permitted at home.

Id. at 618.

Crimm is not alone in her conclusions.  The UC-Davis Journal of International Law and Policy devoted a Symposium to “Family Planning and AIDS Policy in the International Community” in 2006. Berta Esperanza Hernández-Truyol of University of Florida College of Law has a particularly compelling piece, On Disposable People And Human Well-Being: Health, Money And Power, 13 U.C. Davis J. Int'l L. & Pol'y 35 (2006).  She argues:

An analysis of the gag rule reveals that it can be interpreted as an imperial power move that contributes to the deterioration of health. It deploys economic power to ignore sovereignty and subtract from human well-being. The policy purposely denies access to funds that enable the provision of health education, supplies, and services simply to implement political ideology. Ironically, while claiming a policy of preventing loss of life through prohibition of abortion, the gag rule policy actually costs more lives by not engaging in programs that can reduce maternal and infant mortality. Significantly, the policy also deleteriously results in more orphans (who are usually left in very vulnerable and unstable situations) and in the failure to provide certain services and supplies necessary for HIV/AIDS victims. This reveals a direct link between economic power (quantity of aid) and availability of service.

Id. at 64.

Again, this is not a “constitutional law” argument, but an international law and policy one.   A host of other articles on the subject, most of them reaching similar conclusions as these articles by Berta Esperanza Hernández-Truyol and Nina J. Crimm, also might at first seem rather “tangential” to ConLawProfs, except as we discuss Executive and Legislative powers in “foreign affairs.”

But our students (at least mine) often raise issues of "rights" in international contexts.  An interesting – and quite lengthy – article by Scott L. Cummings of UCLA published last year, The Internationalization Of Public Interest Law, 57 Duke L.J. 891 (2008), implicitly contends that “rights” may be shifting away from the Constitution.  Here’s the abstract:

This Article describes and explains the influence of global change on American public interest law over the past quarter-century. It suggests that contemporary public interest lawyers, unlike their civil rights-era predecessors, operate in a professional environment integrated into the global political economy in ways that have profound implications for whom they represent, where they advocate, and what sources of law they invoke. The Article provides a preliminary map of this professional environment by tracing the impact of three defining transnational processes on the development of the modern public interest law system: the increasing magnitude and changing composition of immigration, the development and expansion of free market policies and institutions, and the rise of the international human rights movement. It then suggests how each of these processes has contributed to institutional revisions within the U.S. public interest system: the rise of immigrant rights as a distinctive category of public interest practice, the emergence of transnational advocacy as a response to the impact of free market policies abroad, and the movement to promote domestic human rights both as a way to resist free market policies at home and to defend civil rights and civil liberties in the face of domestic conservatism and antiterrorism. After mapping the institutional scope and texture of these trends, the Article appraises their influence on the goals public interest lawyers pursue, the tactics they deploy, and the professional roles they assume in the modern era.

So it seems that Obama's reversal of the "global gag rule" has a solid foundation in legal scholarship.

RR

Letter to Obama Administration Urging Uighur Release

I posted here yesterday that attorneys for the 17 Chinese Uighurs held at Guantanamo Bay, and whose habeas case is now on appeal to the D.C. Circuit, asked President Obama to release them into the United States, consistent with District Judge Urbina's order. 

SCOTUSblog since posted the attorneys' letter.  (Many thanks to Lyle Denniston and SCOTUSblog for originally posting the letter and for the heads-up.)  From the letter:

We write because, as to our seventeen Uighur clients, there is no need to review whether they should be imprisoned [under the new EO].  The executive branch, the judiciary, and members of Congress all have acknowledged that the Uighurs should be released.  The issue for the Obama Administration is not whether the Uighurs should be released, but rather where they should be released.

We urge the government to release the Uighurs immediately in the only place they can be released--the United States.  Not only would this be just, but it is in our national interest.  By accepting the Uighurs, we would encourage other countries to accept the significant number of Guantanamo detainees who are cleared for release but who cannot be repatriated.  Bringing the Uighurs here is thus an important early step toward carrying out President Obama's Executive Order and removing a stain on our National character. . . .

We are amenable to the imposition of reasonable release conditions, such as, for example, monitoring by the Court in consultation with the Department of Homeland Security.

SDS