Wednesday, February 18, 2009
The Obama administration may be following the Bush administration's lead in several key and controversial policies in the war on terror, Charlie Savage reported in yesterday's NYT. Savage:
Within days of his inauguration, Mr. Obama thrilled civil liberties groups when he issued executive orders promising less secrecy, restricting CIA interrogators to Army Field Manual techniques, shuttering the agency's secret prisons, ordering the prison at Guantanamo Bay, Cuba, closed within a year and halting military commission trials.
But in more recent weeks, things have become murkier.
Here are the areas where the Obama administration's policies may resemble the Bush administration's policies:
State Secrets Claims. The Obama administration just last week shocked civil liberties groups and the Ninth Circuit in maintaining the Bush administration position that the state secrets privilege should prevent the entire case from going forward. The case, Mohamed v. Jeppesen Dataplan, Inc., involves an Ethiopian's claim against a Boeing subsidiary for its role in the Bush administration's extraordinary rendition program. The Obama administration's position prompted a group in both the Senate and House to introduce legislation limiting the use of the privilege in litigation. I posted on this here and here.
Indefinite Detention. AG Eric Holder and Solicitor General nominee Elena Kagan both indicated that they support indefinite detention without trial of someone suspected of helping finance Al Qaeda, even if captured outside an actual combat zone. In related and recent cases in the D.C. District, two judges separately expressed frustration with administration foot-dragging in defining "enemy combatant." I posted here.
Interrogation Techniques. Leon Panetta, nominee for CIA Director, said that he would ask for additional interrogation authority if approved techniques were not sufficient to get a detainee to divulge information about an imminent attack. In notable breaks from the Bush administration, however, Panetta said that waterboarding is torture, and that the President is subject to U.S. law banning torture.
Extraordinary Rendition. Panetta also said that the CIA might maintain its program of "extraordinary rendition." And, as stated above, the Obama administration seems willing to maintain Bush administration claims of state secrets in cases involving renditions.
The big difference--at least so far--in the Obama administration's approach is the apparent absence of categorical claims of sweeping and inherent executive power. For example, Panetta was careful to say that the President was subject to U.S. law, even if he might seek additional interrogation authority. This is a dramatic change from the claims of executive authority in the Bush administration.
The Obama administration has yet to weigh in on other key areas. As mentioned above, it is stalling in defining "enemy combatant" for cases pending in the D.C. District. And it's yet to opine on Rove's assertions of executive privilege in the face of Congressional subpoenas. (More on that here.) We'll keep you posted.
The D.C. Circuit ruled today that the lower court lacked authority to order 17 Chinese Muslims, the Uighurs, held at Guantanamo Bay into the United States. I most recently posted on the Uighurs here; the Center for Constitutional Rights collects all the documents here. (I link to the documents through the CCR web-site below. Many thanks to CCR.)
A bit of history: Judge Urbina (D.D.C.) last fall granted the Uighurs' habeas petition, ruled that the administration could no longer hold them as enemy combatants, and ordered their release into the U.S. (Why the U.S.? Because no other country would take them, and it seemed certain that China, their homeland, would torture or kill them.)
The Bush administration sought and won a stay of Judge Urbina's order and appealed late last year. The administration argued on separation-of-powers grounds that Judge Urbina lacked authority to order the Uighurs into the U.S., even though the administration no longer classified the Uighurs as enemy combatants. (The administration considered them dangerous--and thus didn't want them in the U.S.--only because it feared that they may be angry that the U.S. wrongly held them for so long. Ugh.) The administration also made some quite vague claims in its brief (pp. 27-29) and at oral argument (pp. 11-12) that the Uighurs had previously engaged in "terrorist activities" and therefore would not qualify for admission under immigration laws. (And anyway they never applied.)
The Bush administration's positions left the Uighurs in limbo--they were not enemy combatants, but they had no place to go--and handed the Obama administration a significant headache.
The D.C. Circuit just made it worse.
The three-judge panel--Judges Henderson and Randolph in the majority, and Judge Rogers in concurrence--ruled that Judge Urbina lacked authority to order the Uighurs released into the U.S. The court ruled that decisions about who to admit belong to the political branches, and the courts lack authority to override. The court analogized the case to Shaughnessy v. Mezei (1953), in which the Court ruled that an alien held at Ellis Island and denied entry under U.S. immigration laws (and with no other place to go) had not been deprived of any constitutional rights.
Judge Rogers in concurrence wrote that the Uighurs must be held under U.S. immigration law--because the administration gave up the claim that they were enemy combatants, and there was no other reason to hold them--and that Judge Urbina's ruling was premature in that he failed to determine whether immigration laws provided a valid basis for detention.
The ruling leaves the Uighurs in a no-man's land: They are no longer held as enemy combatants, and they have not applied--and therefore are not considered--for immigration. (Even if they had applied, the Bush administration asserted--and the court seemed to accept--that they would not qualify, because they had previously engaged in "terrorist activities.") But yet they have no place to go.
While the circuit court panel seemed only to add to the problem, it also set out a roadmap for solving it. The Obama administration should drop the appeal and review these cases now to determine on an individual basis whether each Uighur had, in fact, engaged in "terrorist activities." For those that have not--perhaps the majority or even all of them, given the apparent lack of evidence--it should process them through the immigration system and admit them to the U.S.; for others, it should find a home for them. Quickly.
Tuesday, February 17, 2009
Senators Durbin (D-Ill.) and Whitehouse (D-R.I.) called for an update and quick end to the Justice Department's Office of Professional Responsibility investigation into whether lawyers who authored certain OLC legal memos for the Bush administration followed ethical standards. WaPo reports here.
The authors are John Yoo (Boalt Hall) and Judge Jay Bybee (9th Cir.); the memos include the infamous 2002 torture memo. Recall that that memo, authored by Yoo and signed by Bybee, defined torture in remarkably narrow terms and articulated unprecedented unilateral and complete Commander-in-Chief authority. It concluded that enforcement of the statutory torture ban would constitute an unconstitutional infringement upon the Commander-in-Chief powers. Harold Koh's testimony before the Senate Judiciary Committee on the nomination of Alberto Gonzales to be AG gives a sense why the OPR is looking into it. The OLC later withdrew the torture memo in this December 2004 memo, but it never specifically disavowed the vast claims of executive authority in it.
Also at issue: the March 2003 memo concluding that interrogators acting pursuant to Presidential order but also violating statutory bans on torture would be immune from prosecution.
According to reports, the investigation may likely lead at most to referral to state disciplinary authorities.
Adam Liptak reported in the NYT Tuesday that Chief Justice Roberts attributed the "more solid grounds of legal arguments" to a Court full of former federal appeals court judges in a speech at the University of Arizona College of Law. The move toward a Court of such judges, according to Roberts, has resulted in "a more legal perspective and less of a policy perspective." The speech is available at the school's web-site here.
UC Davis Law Review will host what looks like an excellent Symposium on Justice Stevens on March 6. Here's the description:
As part of the 40th anniversary of the dedication of Martin Luther King, Jr., Hall, home to the University of California, Davis, School of Law, the 2009 UC Davis Law Review Symposium will examine the career of U.S. Supreme Court Justice John Paul Stevens. Since his appointment by President Gerald Ford in 1975, Justice Stevens has crafted a rich jurisprudence on matters involving core values of liberty, equality, and security. Legal experts from academia, journalism, and the practice, many of whom served as law clerks to the Justice, will analyze his work on topics including terrorism, criminal justice, abortion, affirmative action, and environmental protection.
The symposium opens with remarks from Dean Kevin Johnson and a videotaped message from Justice Stevens. The panels--titled "Liberty," "Equality," and "Security"--are impressive. Link to the full schedule, see the Symposium brochure, or see below.
Thanks to Professor Diane Marie Amann (UC Davis Law) for the tip.
8:30 - 9:00 a.m.
Continental Breakfast (Mabie Law Library foyer)
9:00 - 9:30 a.m.
Kevin R. Johnson
Dean, University of California, Davis, School of Law
John Paul Stevens
U.S. Supreme Court Justice (videotaped message)
9:30 - 11:00 a.m.
David F. Levi (moderator)
Dean, Duke University School of Law
Former U.S. District Judge, Eastern District of California
Former U.S. Attorney, Eastern District of California
Former Adjunct Professor of Law, University of California, Davis, School of Law
Jeffrey L. Fisher
Associate Professor of Law, Stanford Law School
Co-director, Supreme Court Litigation Clinic, Stanford Law School
Associate Professor of Law, Columbia Law School
Knight Distinguished Journalist in Residence and Joseph M. Goldstein Senior Fellow in Law, Yale Law School
Former Supreme Court correspondent, New York Times
Clinical Professor of Law, Director, Death Penalty Clinic, University of California, Berkeley, School of Law
11:00 - 11:15 a.m.
11:15 a.m. - 12:45 p.m.
Cruz Reynoso (moderator)
Boochever and Bird Professor of Law Emeritus, University of California, Davis, School of Law
Former Justice, California Supreme Court
Former Vice Chair, U.S. Commission on Civil Rights
Diane Marie Amann
Professor of Law and Director, California International Law Center at King Hall, University of California, Davis, School of Law
Teresa Wynn Roseborough
Chief Litigation Counsel, MetLife, New York
Former U.S. Deputy Assistant Attorney General
Associate Professor of Law, Seattle University School of Law
12:45 - 2:00 p.m.
Lunch (food provided)
2:00 - 3:30 p.m.
Kenneth Manaster (moderator)
Professor of Law, Santa Clara University School of Law
Author, Illinois Justice: The Scandal of 1969 and the Rise of John Paul Stevens (2001)
Daniel A. Farber
Sho Sato Professor of Law and Director, Environmental Law Program, University of California, Berkeley, School of Law
Eugene R. Fidell
President, National Institute of Military Justice
Florence Rogatz Visiting Lecturer in Law, Yale Law School
Deborah N. Pearlstein
Associate Research Scholar, Woodrow Wilson School for Public & International Affairs, Princeton University
Former Director, Law & Security Program, Human Rights First
Assistant Professor of Law, University of Washington School of Law
Here are two stories you may wish to follow:
1. Findlaw has a great piece on the Religious Freedom Restoration Act; and
2. In an update to a previous posting, Harry Reid is "cautiously optimistic" that a bill will pass granting the District of Columbia full voting rights in the House. We'll keep you posted!
Monday, February 16, 2009
Wordle, http://www.wordle.net/, is a fun site which will "translate" a block of text into a graphic representation. The most frequently appearing words appear the largest. One can choose from different designs and color schemes, but the word frequency is the real point of interest.
It's somewhat similar to the "word train" the NYT website recently premiered. As described by New York magazine:
On the day Barack Obama was elected, a strange new feature appeared on the website of the New York Times. Called the Word Train, it asked a simple question: What one word describes your current state of mind? Readers could enter an adjective or select from a menu of options. They could specify whether they supported McCain or Obama. Below, the results appeared in six rows of adjectives, scrolling left to right, coded red or blue, descending in size of font. The larger the word, the more people felt that way.
All day long, the answers flowed by, a river of emotion—anonymous, uncheckable, hypnotic. You could click from Obama to McCain and watch the letters shift gradually from blue to red, the mood changing from giddy, energized, proud, and overwhelmed to horrified, ambivalent, disgusted, and numb.
It was a kind of poll. It was a kind of art piece. It was a kind of journalism, but what kind?
Wordle brings this "journalism" or "art" to the masses.
It's easy to access and can be fun diversion for your class syllabus, not to mention your most recent draft of an article.
This is a "wordle" of the United States Constitution, available here.
Happy Presidents' Day!
CALL FOR ROUNDTABLE PARTICIPANTS
CRN No. 9 (Gender and Legal Education)
LAW AND SOCIETY ASSOCIATION ANNUAL MEETING
May 28-31, 2009 Denver, Colorado
DEADLINE FOR PROPOSAL: FEBRUARY 25, 2009
Roundtable: Teaching Gender Inequality in Law Schools
Conversations about gender and sexuality in core law school courses are often focused on equality—constitutional doctrines of formal equality meted out by high courts – rather than underlying causes, effects and forms of inequality. Law students are rarely asked to consider if inequality itself is undesirable, and whether law has a role in perpetuating, creating, resisting or eliminating it. While these concepts are foundational in most sociology or anthropology programs, they are not central to the law school curriculum, especially in the first year.
While there is no doubt that court cases eliminating legal barriers to gender and sexual equality are important for all law students to learn, the conversation is impoverished if they are the only vehicle used to examine gender, sexuality and other intersecting forms of inequality in a typical course of law school study. Teachers of today’s generation of students also must grapple with the fact that gender inequality looks different to students than it did even fifteen years ago. The generation of women entering law school—the beneficiaries of equal opportunity to education under Title IX and employment under Title VII – are members of a community in which young women have excelled. Many of them do not perceive gendered inequality operating in their lives. This creates a displacement where students who are interested in women’s rights are more comfortable examining the inequality of women in exotic foreign locales (such as inequalities suffered by Muslim women, victims of sex trafficking or of mass sexual violence). At the same time, however, they are slow to recognize the structural nature of gendered inequalities that persist closer to home. They may be quick to dismiss their own anxieties as problems that can be overcome by making perfect individual choices. Students interested in eliminating the inequality of the LGBTQ community might perceive that inequality more starkly, but still often lack the vocabulary to discuss questions of law, power and sexuality outside of the bounds of formal equality.
In the climate of change created by recent critiques of legal education, roundtable participants will take up the question of how social scientists and law teachers can become allies in the creation of materials, techniques and strategies to teach law students about the gender, sexual, and intersectional inequalities in the U.S. legal system and culture. Possible topics might include: innovations in legal pedagogy; strategies for exploring gender and sexual inequality in core law school courses (e.g., contracts, torts, criminal law); whether the training of lawyers should include an apprenticeship of identity and purpose that has at its core a commitment to reducing inequality; teaching techniques for reinvigorating courses on discrimination with more nuanced and sophisticated understandings of how structural inequalities play out in the lives of lawyers and their clients; exploring the role of experiential and clinical education in both fighting inequality and teaching students about its nature; incorporating questions of how law enables corporations and consumer culture to create and perpetuate gender inequality into law school teaching; and addressing inequality created or sustained by culture and religion in U.S. domestic as well as international settings.
If you would like to join the roundtable, please email Daniela Kraiem, CRN No. 9 Organizer and Associate Director, Women and the Law Program, American University Washington College of Law at firstname.lastname@example.org with a brief paragraph describing your interest in participating in the roundtable by February 25, 2009.
Sunday, February 15, 2009
Professor Stephen Griffin (Tulane) in his latest and characteristically thoughtful piece The Bush Presidency and Theories of Constitutional Change, just posted on ssrn, takes on this provocative question:
Can existing theories of constitutional change account for the Bush presidency?
Griffin argues that one can: his own. And he makes a very persuasive case. Agree or disagree with his ultimate conclusion, though, this piece is well worth your time. I highly recommend it.
As Griffin points out, the Bush presidency presents a hard case for constitutional change theories: The immediate precipitating events--the 9/11 attacks--were extraordinary; the administration's claims of inherent executive authority were unprecedented; and the constitutional decisionmaking went on largely outside of the public's view.
In the wake of the attacks and as part of the war on terror, the administration authorized indefinite detention without due process, torture, and NSA surveillance outside of the FISA framework, to name only "the most salient departures."
So how to explain this?
Griffin argues that the leading theories of constitutional change--Llewellyn's unwritten "working constitution"; Ackerman's "key constitutional transformations"; Balkin and Levinson's "high politics"; and Whittington's "constitutional construction"--are ill-suited for the task:
Lllewellyn's theory does not allow a role for the rules contained in the text of the Constitution and the special status of the institutions founded on those rules. Theories based on the tidal force of social movements cannot help in understanding the latent potential institutional structures unleashed by seemingly world-historical events. And theories that build from actions in the public arena are not useful in probing a relentless struggle for political advantage that occurs behind closed doors.
What the Bush constitutional changes need is an institutional theory of constitutional change--Griffin's theory--based upon "the historical development and interplay of state institutions."
The Bush presidency well illustrates that in a constitutional order where formal change is difficult, changes in institutional structure can be an effective substitute. The Bush administration adroitly used institutional change as a pathway to changing the constitutional order.
Griffin offers three examples. First, Bush's claim in the immediate wake of the 9/11 attacks that "we're at war" came with significant constitutional implications: It meant that the President acted with all his substantial powers as Commander in Chief in responding to a surprise attack. Griffin:
By describing 9/11 as a war, the president short-circuited any meaningful debate over the nature of the attacks and the appropriate response. But his constitutional claim was arguably more significant. While the president participated in the process that led to the September 2001 [AUMF], he reserved the argument that he did not need it to prosecute the war. In two subsequent letters to Congress, the president ignored the AUMF and apparently invoked his traditionally recognized power to respond to sudden attacks . . . .
Next, the administration based its initiatives on "secret constitutional rationales." Thus it bypassed the ordinary system of interagency review, it dodged Congress, and it avoided public scrutiny and debate, at least until its initiatives were uncovered. The opacity allowed the administration to "blow through [laws it didn't like] in secret based on flimsy legal opinions that they guarded closely so no one could question the legal basis for the operation."
Finally, the administration "operationalized" the Office of the Vice President, treating it as a cabinet-level agency with statutory authority, but one run right out of the White House. This meant that the Office of the Vice President "could intervene with respect to any policy without being subject to normal statutory or interagency checks." It also resulted in the "subordination of the OLC to the White House."
Griffin's institutional theory is a useful way--and quite possibly the most useful way--of explaining constitutional changes in the Bush administration. The piece is well worth reading for this argument alone.
But Griffin's article is perhaps more important for what it might spawn. This piece is, by its timing, restricted in its ability to tell the full story of constitutional change in the Bush administration. Indeed significant portions of the next chapter are playing out in the courts right now. And the Obama administration signaled early that it will roll-back or reevaluate many of the Bush administration constitutional claims and its anti-terrorism policies (though its latest decisions--see here and here--leave some doubt). Between the courts and the new administration's positions (and a Democratic Congress), it's not at all clear so soon after the Bush administration that its extraordinary constitutional claims will result in any enduring constitutional changes. As this develops, there's much more work to do. Griffin's piece gives us an important starting point.
I highly recommend this excellent article.
Saturday, February 14, 2009
The vigorous Valentine's Day media (and commercial) attention to relationships prompted me to reread Christine Littleton's classic article, Reconstructing Sexual Equality, 75 California Law Review 1279-1337 (1987). More than twenty years ago, Littleton, a Professor of Law at UCLA, Littleton sought to resolve the then-current (and still vexing) sameness-difference problem in equality jurisprudence. Her solution was an argument that difference should neither be eradicated nor accommodated, but rendered "costless." Eradication seemed to her impossible, and accommodation was faulty because it could be used to recreate inequality. Instead, equality should be "acceptance."
Littleton's acceptance model has not been accepted as constitutional doctrine. Yet it remains worth contemplating. Today, many persons are both mothers and soldiers, but Littleton argued that making gender difference less costly might mean " requiring the government to pay mothers the same low wages and generous benefits as most soldiers."
She added that it could also mean "encouraging the use of motherhood as an unofficial prerequisite for governmental office." In light of our last election, this is quite an interesting notion to contemplate. Littleton continued that if motherhood were "a paying occupation with continuing status perks, many more men might be induced to stay home and raise their children. Alternatively, but less likely, making difference costless could mean ceasing to pay combat troops."
In part, her argument is also a solution to the equal protection "intent" problem. As she wrote:
For example, in Personnel Administrator v. Feeney [442 U.S. 256 (1979)], the Supreme Court upheld Massachusetts' lifetime veteran's preference against an equal protection challenge, reasoning that Massachusetts had not intended that preference to lock women into lower-level and dead-end civil service positions, regardless of this obvious effect. Under an equality as acceptance model, a state's failure to provide equal preference for the gendered female complement to military service would be evidence of intentional discrimination. Thus, even without additional constitutional or statutory enactment, a change in the Court's underlying model of equality could alter the result in actual cases.
The Court's model of equality may have changed since 1987, but it does not seem any closer to making differences "costless" in the manner Littleton suggested it should.
Friday, February 13, 2009
The U.S. District Court for the District of Columbia twice this week signaled its frustration with the Obama administration's refusal to refine its position on the definition of "enemy combatant" in detainee cases before the court.
The administration filed a Response on February 9 urging the court not yet to address the definition of "enemy combatant." (Thanks to SCOTUSBlog for the administration's Response.) The administration claimed that any movement would be premature given President Obama's order to review the disposition of all detainees at Guantanamo. (See my previous post here.) Moreover, the administration argued, the definition of "enemy combatant" could only be determined in the context of specific facts of specific cases at the merits stage.
Judge Bates on February 11 rejected the administration's invitation to defer indefinitely and ordered the administration to file any refinement to its position on the definition of "enemy combatant" by March 13, 2009. He specifically rejected the administration's proposal to define "enemy combatant" only in the context of specific cases:
the definition of the central legal term "enemy combatant" is not a moving target, varying from case to case, and the Court intends to rule on that definition before the parties reach a critical point in these proceedings.
(Emphasis in original.)
Judge Walton followed suit just yesterday in a related set of cases. But Judge Walton's order requires the administration to recommend a plan for resolving the definition in a February 18 hearing. (There are other significant questions in this case: Whether the administration may detain an enemy combatant indefinitely without showing a prospective threat; whether the administration may detain an enemy combatant for the purpose of interrogation, not "incapacitation of a potential combatant"; and whether a detainee's habeas rights "'can be honored if the detainee is never informed of the factual basis of his detention' are all 'important' issues that 'must be addressed by the Court at some point.'")
In language reflecting the court's growing frustration, Judge Walton wrote,
So, while the Court will, of course, provide the respondents with an opportunity to convince it of the virtue of their seemingly preferred approach, the Court also expects the respondents to be prepared to recommend a format and schedule for resolving the issue of the appropriateness of the definition of the term "enemy combatants" previously propounded by the respondents in a generalized and expedient manner if the Court decides to address the issue in that fashion.
These cases have lingered for far too long.
It's not obvious why either of the administration's two stated reasons for delay should cause these cases to drag on any longer. With regard to the second: As Judge Bates made clear in his order, the administration's proposal to define "enemy combatant" on a case-by-case basis is contrary to ordinary process; this looks arbitrary and unfair. And with regard to the first: The administration must surely be close to a definition of "enemy combatant" for the purpose of its review--isn't this the very first thing the review group would do?--and this definition should simply carry over into the administration's litigation position. The review group can later decide to release these detainees or to try them in regular Article III courts (and thus moot these cases); but in the meantime, the administration should keep these cases moving forward.
In the wake of the Obama administration's assertion of state secrets in Mohamed v. Jeppesen Dataplan, Inc., the Ninth Circuit case on extraordinary rendition (more here, and see Glenn Greenwald's excellent analysis at Salon.com), legislation has been re-introduced in the Senate and the House to curb administration assertions of the state secret privilege and to guide the courts in ruling in those cases. I haven't been able to track down the bills, but the Senate bill from the last Congress is here.
According to Senator Leahy's press release, the legislation will set uniform procedures for federal courts considering the state secret privilege, require judges to review evidence upon which the privilege is based (and not just rely upon government affidavits), and establish other procedures to promote the responsible use of the privilege.
The Report accompanying last Congress's Senate bill makes for good reading on the Senate Judiciary Committee's views on state secrets and separation of powers. The (Democratic majority) Report:
Courts and scholars have debated the origins of the privilege and whether it is a "mere" common law rule or whether it also has some foundation in the Constitution, notwithstanding the lack of explicit textual or historical support for such a view. Regardless of whether the privilege has any constitutional dimension, however, there is widespread agreement that Congress has constitutional authority to regulate the privilege, based on its Article III powers to set rules of procedure and evidence for the Federal courts, its Article I powers related to national security and foreign affairs, and the Necessary and Proper Clause. Article II is not the only relevant part of the Constitution. Even if the state secrets privilege were in some respect "rooted" in our constitutional structure, there is no bar to Congress, using its own authorities rooted in the Constitution, exercising concurrent authority over the protection of state secrets or providing rules for implementation of the privilege.
The Republican minority argued that the bill was unnecessary (because the privilege was infrequently invoked) and even potentially harmful to national security.
As you may have heard, yesterday marked the 100th anniversary of the founding of the NAACP. The NAACP has a far reaching legacy in Constitutional Law. Of course, the most obvious example is the litigation leading to Brown v. Board of Education and the reversal of the "separate but equal" doctrine. However, the NAACP also left its mark in cases such as Shelley v. Kraemer and Loving v. Virginia. Additionally, the organization was active in lobbying for the 1964 Civil Rights Act. Finally, as a plaintiff, iin cases such as NAACP v. Alabama and NAACP v. Button, the NAACP expanded the boundaries of the First Amendment freedoms of political expression and association.
As Constitutional Law professors, it is incumbent upon us to take a moment to reflect on the constitutional legacy of this organization.
It's time for the Teaching Assistant. Here are a few stories that you might be interested in this week.
The Washington Post reports that the Obama Administration will expand the scope and duties of the National Security Council. According to the article, "New NSC directorates will deal with such department-spanning 21st-century issues as cybersecurity, energy, climate change, nation-building and infrastructure."
A pending lawsuit is attempting to force courts to reconsider the "soft-money" limits on campaign expeditures imposed by the McCain-Feingold Act.
Here are two stories on abortion: First, the Chicago Tribute reports that twelve states - are proposing laws that would mandate ultrasounds prior to an abortion procedure. The proposals range from requiring that a woman be offered an ultrasound, requiring that an ultrasound be performed without requiring the woman to view the image, requiring that the ultrasound be performed "in a way the pregnant woman may view the[ images]," and finally, requiring that the woman actually view the images. As I've frequently written in this space, such laws could run afoul of the Casey standard depending on the level of the requirement imposed by the legislation. Critique of these laws can be found here.
Second, Glamour magazine (yes, a fashion magazine has a link to Con Law, I promise) ran a surprisingly insightful piece about women's abortion experiences. Rather than focusing on the legal aspect, the magazine interviewed a number of women about their abortion experiences. It's a wide ranging piece with a number of different women with different reactions. The piece is helpful to professors and students of Constitutional Law, as it is easy to get lost in the legal discussion and to forget that real people are impacted -daily - by these laws.
That's all for this week. See you next time!
Yesterday's Wall Street Journal ran two pieces - here and here - about the difficulty of citizens challenging Hillary Clinton's salary through the Emoulients Clause or Barack Obama's eligibility through the Natural Born Citizen Clause. The argument can be summarized as follows - according to the courts, a citizen will never be found to have standing in any such cases, so taken to the extreme, California Governor Arnold Schwartzenegger could become President despite the Constitutional violation, because no one would be able to object.
I belive that both pieces greatly overstate the potentional danger for several reasons. First, the piece ignores the political reality. Because everyone in the nation knows that our President must be a citizen, would there really be a groundswell of support for a person that would ultimately be unable to serve? It seems highly unlikely.
Second, the Court suggested in Richardson that the CIA's compliance with the Constitution could be best monitored through the political process. Assume for the moment that a person pretended to be a citizen, was elected, and was later discovered to be a non-citizen. What would prevent Congress from impeaching that person immediately? Since impeachable offenses can be broadly defined, this certainly seems possible.
Third, there is a legal reason why the plaintiffs in cases such as Berg v. Obama lost - they could not prove that they had suffered an injury. In cases such as this, it may appear that a person could never demonstrate an injury. I don't beleive this is so. In the cases that have been litigated on the eligibility of John McCain and Barack Obama, it appears that the courts declined to find an injury because it was at least plausible - and indeed, fairly certain - that both Obama and McCain were United States citizens. However, in the case of someone like Schwartzenegger, a Court would not be able to rest on such arguments as comfortably, and would have to work harder to prove that the person was not truly injured. Indeed, this scenario would be different than the generalized taxpayer grievance. It's not about the payment of taxes but about something that goes to the fundation of our democracy.
Finally, the articles overlook a very important point. It's an open secret that judges freqently use justiciability doctrines to avoid hearing knotty cases on the merits. Any federal court could have resolved the "Obama's not a citizen issue" by looking at the evidence and ruling on the issue. However, politically, a court might not have wanted to get involved in the political fray, as a ruling either way might have stoked the fringe elements. It is not farfetched to think that a court looked at the evidence, saw that the case had very little chance to prevail, and simply dismissed it before ruling on the merits.
In short, the standing issue could be far more complicated than we anticipate. With the right plaintiff, on the right facts, courts could be more open to a challenge.
Thursday, February 12, 2009
Feeling the creative urge? Or the need to write something that is not footnoted?
Or thinking of a creative assignment for students?
The literary magazine New Millennium is having a writing competition for works centered on Obama - - - poetry, fiction, or creative nonfiction - - - 2,500 words or less. (Really, that's two thousand five hundred words; not twenty-five thousand).
There is an entry fee, as there tends to be in creative writing competitions. There is also a monetary award. Deadline is March 1, 2009. More information here.
Thirty-three law professors, former state supreme court justices, and practitioners proposed four significant changes to Supreme Court operations, Law.com reports. (Thanks to reader Darren Elliott for the tip.) The group sent the proposals to the House and Senate Judiciary Committees in the form of draft legislation. (This is the latest in a series of proposals for Supreme Court reform. See Supreme Court 2.0 in the ABA Journal, October 2008, for more.)
1. Membership rotation. Thirty members of the group recommended biennial Supreme Court appointments to ensure justice rotation and regular change in composition of the Court. The nine most junior justices would hear cases; the Court itself would figure out what to do with senior justices when the number exceeds nine.
2. Retirement. The group proposed that the Chief and the Judicial Conference would actively promote the retirement of justices who can no longer perform duties.
3. Term Limit for Chief. The group proposed a seven-year term limit for the Chief.
4. Docket. Nineteen members proposed that a group of appellate judges would set a substantial number of cases for the Court to hear on their merits. The Court could add to, but not subtract from, this number.
Wednesday, February 11, 2009
The Obama administration maintained course on the Bush administration claims of state secrets in Mohamed v. Jeppesen Dataplan, Inc., a closely watched case at the Ninth Circuit. The NYT reports here.
The case involves an Ethiopian's claims against a Boeing subsidiary for its role in the Bush administration extraordinary rendition program. The Bush administration pressed for dismissal, arguing (rather ambitiously) that the state secret doctrine prevented the case from going forward, particularly: that any discussion of the case in court would threaten national security.
There was widespread anticipation that the Obama administration would change course, especially given the administration's stated emphasis on government openness and AG Holder's commitment to review every pending case in which the Bush administration asserted state secrets. (See here.)
But it didn't.
Instead, a lawyer representing the administration told the panel that the administration would maintain the Bush administration position--a decision "thoroughly vetted with the appropriate officials within the new administration."
Case documents are here (many thanks to the ACLU). I'll update with developments.
Judge Gladys Kessler (D.D.C.) yesterday denied Guantanamo detainees' motion for a preliminary injunction to halt the government's techniques in force-feeding them during their hunger strike. The detainees claimed that the government's use of a restraint chair and a nasal feeding tube amounted to torture. They filed a habeas petition and the motion for preliminary injunction at issue here.
On the first prong of the preliminary injunction analysis--the likelihood of success on the merits--Judge Kessler ruled that the court lacked jurisdiction under the Military Commission Act.
The MCA stripped federal courts of jurisdiction over detainees' habeas claims, but the Supreme Court last summer In Boumediene v. Bush overturned a portion of the MCA--Section 2241(e)(1), which denied federal court jurisdiction with respect to habeas actions by detained aliens determined to be enemy combatants--and ruled that the privilege of habeas extended to detainees at Guantanamo.
But the Court in Boumediene left open the constitutionality of Section 2241(e)(2), which denies jurisdiction as to "any other action against the United States . . . relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement" of a detained alien determined to be an enemy combatant.
Judge Kessler ruled that the detainees' habeas case here was more in the nature of a Section 2241(e)(2) case, because the detainees sought relief from certain treatment at Guantanamo (and not general release). Judge Kessler ruled that the Court in Boumediene did not overturn Section 2241(e)(2), that Section 2241(e)(2) strips the court of jurisdiction to hear the petitioners' claims, and that the petitioners' likelihood of success is therefore quite low. Judge Kessler:
Petitioners seek an injunction to alter the conditions under which they are force-fed and provided medical treatment. The relief they seek clearly falls under Section 2241(e)(2). . . . Boumediene struck down as unconstitutional Section 2241(e)(1), which denied detainees the right to habeas corpus review in federal court. In doing so, the Supreme Court, in clear and direct language, refused to address "the reach of the writ with respect to claims of unlawful conditions of treatment or confinement."
See pages 10 to 16 of the opinion for more.
Three D.C. judges have now ruled that Boumediene did not overturn Section 2241(e)(2). I posted on one of those cases here.
Tuesday, February 10, 2009
With the economic crisis looming and debates about a Presidential/Congressional "fix," I've been returning to a conversation between Franches Fox Piven and ConLaw Prof Steve Loffredo, 11 NYC Law Review 1-21 (2007), which I moderated with constitutional law students in attendance. Here are some excerpts:
RR: We have recently discussed, as a class, San Antonio Independent School District v. Rodriguez [411 US 1 (1973)] . . . . At one time, I considered this opinion one of the top five worst Supreme Court opinions--now there are many more. I have always thought that if the case had been decided differently, law and social change could have proceeded in a very different way. However, lately, I have been thinking that is perhaps too optimistic. So I guess I would like to open it up and ask for your thoughts.
Professor Frances Fox Piven: Well, it is much too optimistic. The optimism flows from a certain way of thinking about social progress that begins with principles. If we all accept the principle that extreme need should be eliminated in this world; if we can get that principle out there, then extreme need will be eliminated. Or if we can somehow make it a law that extreme need should be eliminated, then some kind of action will follow. Principles sometimes do affect social life; but they affect social life when they become the inspiration of social forces, of movements, of real political formations that exert pressure. . . .
Professor Stephen Loffredo: I will start by saying that the San Antonio decision was enormously disappointing; it was one of the worst cases not only because the court endorses unequal treatment of poor people in an area that is sort of one of the core concerns of government, which is education, but because we know, in our society, education is really the motor of mobility. So, to the extent that education is the motor of economic mobility, it is the pathway out of poverty. . . . I agree with Professor Piven that if your goal is to alter capitalism, to make it more humane, all indications are that the tool for such change is not the American judiciary. The American judiciary has been very, very good to capitalism. And I am not just talking about the Lochner period but really throughout our history.
Embedded in your question is part of the other answer you gave, which is whether principle or principle in the judicial context can precipitate substantial movement forward--progressive change through judicial decree? The answer is no. As Professor Piven said, you need active social movements. That is really the only way that substantial, progressive social change has happened.
The questions now seem to be whether there exists any "social movement," and if so, whether the two non-judicial branches are responsive to it. And if there is some response, what the judiciary might do when it is called upon to "say what the law is."