Saturday, May 30, 2009
Dignity, Freedom and South African Constitutional Justice Ackerman: Robson's Saturday Evening Review
ys in this collection provide insights into the relationships between dignity and freedom as constitutional principles, not only in the "new South Africa," but also for those interested in American constitutional law and its foundations and theories.
Several essays might be of special interest to American ConLaw Profs:
Freedom By Any Other Name? A Comparative Note on Losing Battles While Winning Wars, by Frank Michelman of Harvard Law School compares the South African constitutional concern with the principle of freedom to "residual liberty" constitutional issues in the United States known - in its most "congenial" phrasing according to Michelman - as substantive due process.
Toward a Relational Constitutionalism by Peggy Cooper Davis of NYU Law discusses the well-known view that the South African Constitution is reactive to Apartheid, but then disputes the well-known comparison that the United States Constitution is not "reactive." Cooper argues that the Reconstruction Amendments were reactive and that the US Constitution could (and should) be viewed through their transformative character.
Both Michelman and Davis discuss the South African Constitutional Court's sexuality decisions - a matter on which the South African Constitutional Court has been at the forefront. These decisions and their theoretical underpinings are the centerpieces of the excellent contributions by Pierre de Vos and AJ Barnard-Naude. Socio-economic rights is another area in which the South African Constitutional Court is seen as progressive and the essay by Sandra Liebenberg compellingly connects "freedom" to issues of what Americans think of as "equality."
Drucilla Cornell, an American law professor now holding a chair at University of Cape Town, offers the best introduction to the work of former Justice Laurie Ackerman, including Ackerman's reliance on Kant in his judgments and the importance of dignity as well as uBuntu. As she does so, she illuminates issues far beyond a single justice or a single nation. Her piece alone is worth the price of the book.
The book will be launched June 4 at the Book Lounge in Cape Town. Unfortunately, my visit to the University of Cape Town has ended, but if you are in the neighborhood, it promises to be an event worth attending.
Friday, May 29, 2009
Toobin's article on Chief Justice John Roberts in the New Yorker is worth a read, especially in light of current discussions about a person's background and judicial philosophy. Toobin writes that Roberts said “Judges are like umpires,” during his confirmation hearing, continuing,
Toobin writes about the ways in which Robert's career marked him:
In private practice and in the first Bush Administration, a substantial portion of his work consisted of representing the interests of corporate defendants who were sued by individuals. For example, shortly before Roberts became a judge, he successfully argued in the Supreme Court that a woman who suffered from carpal-tunnel syndrome could not win a recovery from her employer, Toyota, under the Americans with Disabilities Act. Likewise, Roberts won a Supreme Court ruling that the family of a woman who died in a fire could not use the federal wrongful-death statute to sue the city of Tarrant, Alabama. In a rare loss in his thirty-nine arguments before the Court, Roberts failed to persuade the Justices to uphold a sixty-four-million-dollar fine against the United Mine Workers, which was imposed by a Virginia court after a strike. One case that Roberts argued during his tenure in the Solicitor General’s office in George H. W. Bush’s Administration, Lujan v. National Wildlife Federation, seems to have had special resonance for him.
According to Toobin, who does a nice job of explaining standing, Roberts supports "gatekeeping" doctrines. There is much else here, including discussions of recent oral arguments in the voting rights case and recent decisions such as Seattle Independent Schools and Boumediene v. Bush (dissenting).
Thursday, May 28, 2009
By my measure, Judge Sotomayor is less activist than the average judge and does pretty well compared to many other notable appellate judges.
(In criminal cases, "Sotomayor looks a tad more defendant friendly relative to her peers. However, given the small sample sizes, the difference is not significant," Yung writes in a follow-up post.)
Yung ranks Judges Guido Calabresi and Richard Posner as the most activist in his sample; he ranks Judges Diana Gribbon Motz and J. Harvie Wilkinson III as the least activist.
What is an "activist"? Yung:
Judges are "activist" when they substitute their judgment in place of other constitutional actors when the formal model would predict otherwise. The key to the definition is the concept of substituting judgment. Ultimately, activist judges subordinate the opinions of others in favor of their own. . . . I refer to "constitutional actors" as the primiary government actors in the U.S. Constitution: the courts, Congress, the executive, and state governments. So if an appellate judge is reviewing an appeal of a suppression motion decision and substitutes his or her judgment in place of a police officer, that review has no "activist" implications. However, reviewing the judgment of the district court does.
Yung will present his work this weekend at Law and Society, Saturday at 4:30.
Wednesday, May 27, 2009
Interviewed on PBS News Hour here, my colleague Jenny Rivera of CUNY School of Law had this to say about Sotomayer (for whom she clerked) in terms of background, judicial diversity, and decision-making:
GWEN IFILL: Well, I want to pick up on that with Jenny Rivera, because you talk about the real life experience of a Thurgood Marshall. How much of the real-life experience of a Sonia Sotomayor could you be expected to actually have an impact in some place as august as the Supreme Court?
JENNY RIVERA: Well, as she said today, her life experiences have informed who she is. They've shaped who she is. It certainly shapes the way the world perceives her.
She grew up, as we all know now, very humble beginnings, grew up basically at the knee of her mother. And so those experiences are going to inform the way she sees those cases.
JENNY RIVERA: Well, I think the president didn't make a choice based on identity politics. He made the choice based on the merits of her intellectual capabilities, on the experience that she brought to the court.
And you heard David Axelrod say, you know, the fact that she happens to also be Latina and be a woman, it's wonderful that we can bring that to the court. But this was a choice based on the strength of her background, her experience, and her intellect. And, certainly, that's important.
But at the same time, we have to recognize that the court is vulnerable to criticism that it doesn't look like the rest of the country and therefore is insensitive to those issues, and it is encased in this bubble, and there's an insularity about the court.
So it is important that we all feel that all sections, all branches of government somehow have a certain integrity behind them and really speak to people.
And I think certainly President Obama, when he says he's looking for someone who has empathy and who understands the implications of these cases on real people, is recognizing also the significance of the judiciary, not just the executive branch, not just the legislative branch, being a branch of government that all people in the United States, all our various, diverse communities can feel carry a certain integrity behind them and rule not based on appearances, but look at the merits of the case, and apply the rule of law, and apply those values of the Constitution.
So, given that appraisal, perhaps we could expect Judge Sotomayer to say something like this in her confirmation hearing?
And I know about their experiences and I didn't experience those things. I don't take credit for anything that they did or anything that they overcame.
But I think that children learn a lot from their parents and they learn from what the parents say. But I think they learn a lot more from what the parents do and from what they take from the stories of their parents lives.
And that's why I went into that in my opening statement. Because when a case comes before me involving, let's say, someone who is an immigrant -- and we get an awful lot of immigration cases and naturalization cases -- I can't help but think of my own ancestors, because it wasn't that long ago when they were in that position.
And so it's my job to apply the law. It's not my job to change the law or to bend the law to achieve any result.
But when I look at those cases, I have to say to myself, and I do say to myself, "You know, this could be your grandfather, this could be your grandmother. They were not citizens at one time, and they were people who came to this country."
If so, she'd be repeating exactly what Judge Alito said in the Senate Confirmation hearings - - - as quoted by Glenn Greenwald on salon.com today.
The California Supreme Court has issued its opinion in the three consolidated cases (Strauss v. Horton, S168047; Tyler v. State of California, S168066; City and County of San Francisco v. Horton, S168078) challenging the constitutionality of Proposition 8. As predictable from our previous post on the oral argument, the court declined to determine proposition 8 was unconstitutional.
Only Justice Carlos Moreno dissents, based on his interpretation of California's equal protection clause, which is not only distinct from the Fourteenth Amendment, but also
(Moreno opinion at 4). In considering the distinction between amendments and revisions which seems crucial to California state constitutional law doctrine, Moreno relies on Raven v. Deukmejian (1990) 52 Cal.3d 336, 341-343, "the one case to invalidate a portion of an initiative on the grounds that it constituted a qualitative revision," even as he notes it is distinguishable:
(Moreno opinion at 17-18).
On the retroactivity issue, Moreno joins the majority to make the opinion unanimous that "Proposition 8 cannot properly be interpreted to apply retroactively to invalidate lawful marriages of same-sex couples that were performed prior to the adoption of Proposition 8" and to do so "would pose a serious potential conflict with the state constitutional due process clause." (Majority opinion at 133).
But the California Supreme Court opinion may not necessarily be the last litigation. Two - - - perhaps unlikely - - - attorneys have filed a lawsuit in federal district court. As the LA Times reports:
The complaint has two simple claims under the United States Constitution: a due process claim and an equal protection claim.
A sharply divided Supreme Court ruled yesterday that New York's efforts to limit prisoners' federal civil rights claims in New York state courts violated the Supremacy Clause.
New York moved to restrict prisoner-rights claims in New York state courts under 42 U.S.C. Sec. 1983 in order to curb what it deemed "frivolous and vexatious" suits against state correctional officers. (Section 1983, a Reconstruction-era statute, authorizes civil suits against state officers for violations of federal constitutional rights in the scope of their employment. Plaintiffs can file in federal courts or in state courts of general jurisdiction.) Thus the state stripped its courts of jurisdiction over Section 1983 claims by prisoners against correction officers. (The state also stripped its courts of jurisdiction under a state statute that, like Section 1983, authorized civil suits against state officers for violations of constitutional rights.) But the state granted jurisdiction over these claims to a state court of limited jurisdiction, the Court of Claims, with a 90-day notice requirement, no entitlement to a jury trial, no right to attorney's fees, and no punitive damages or injunctive relief.
The New York law thus severely restricted prisoner-rights claims in state courts under Section 1983. (Prisoners, of course, could still file a Section 1983 claim in federal court.)
Justice Stevens (for himself and Justices Kennedy, Souter, Ginsburg, and Breyer) ruled that the New York law violated the Supremacy Clause. Stevens wrote that while "states retain substantial leeway to establish the contours of their judicial systems, they lack authority to nullify a federal right or cause of action they believe is inconsistent with their local policies." Slip Op. at 6. Because New York's law "operates more as an immunity-from-damages provision than as a jurisdictional rule," Slip Op. at 7, n. 5, it's not a "neutral state rule regarding the administration of the courts"--an exception to the "presumption of concurrency" between federal and state law under Howlett v. Rose (1990). Slip Op. at 6.
Moreover, the law was not "neutral," even though it divested state courts of jurisdiction over both state and federal law authorizing prisoner constitutional rights suits, because it targeted only a "particular species of suits--those seeking damages relief against correction officers." Slip Op. at 10. Stevens for the Court:
We therefore hold that, having made the decision to create courts of general jurisdiction that regularly sit to entertain analogous suits, New York is not at liberty to shut the courthouse door to federal claims that it considers at odds with its local policy. A State's authority to organize its courts, while considerable, remains subject to the strictures of the Constitution.
Slip Op. at 11.
In dissent, Justice Thomas (for himself, Chief Justice Roberts, and Justices Scalia and Alito) argued that the Court's cases didn't support the non-discriminatory requirement in the Court's definition of "neutral" and that states had plenty of authority and room to issue neutral rules of administration for their own courts. (Roberts, Scalia, and Alito joined only a narrow part of Thomas's much broader opinion, part of which focused on the original intent of Article III.)
The case is a victory for federal civil rights claimants in state courts. It means that states that seek to limit access to their courts for federal constitutional rights claimants face a higher bar--one that New York's efforts failed to satisfy--and that states can't try to side-step their way around federal civil rights law by disguising an immunity provision as a jurisdictional rule, even as states retain substantial authority to organize their own courts.
This portion of the round-up will focus on what selected news outlets have reported about Judge Sonia Sotomayor's positions on various issues.
Apparently, Judge Sotomayor has yet to rule in a domestic abortion case. However, she has ruled in a case regarding the "Mexico City Policy" or the "global gag rule." In that case, she ruled in favor of upholding the policy.
Business and Commerce
The Wall Street Journal reports that "There is no reason for the business community to be concerned . . . The judge has “ruled in favor of preemption about half of the times that the issue has been presented to her." Moreover, the Journal states that Judge Sotomayor "has sided with defendants in cases involving the standards that govern when cases can be brought as a class actions and the extent to which plaintiffs’ claims can be preempted by more defense-friendly federal or international laws."
A piece from wired.com reminds us that Judge Sotomayor once practiced IP law and also ruled on IP issues on the Second Circuit. Thus, according to the website,“If confirmed, she will be the first justice who has written cyberlaw-related opinions before joining the court.” In one case, the article notes she ruled against Netscape, stating, "We conclude that in circumstances such as these, where consumers are urged to download free software at the immediate click of a button, a reference to the existence of license terms on a submerged screen is not sufficient to place consumers on inquiry or constructive notice of those terms.”
The Wall Street Journal reports that Judge Sotomayor "has repeatedly sided with employees who claimed they were the victims of discrimination or a hostile work environment." In support, the Journal cites a case from 2000 wherein Sotomayor reinstated the plaintiff's hostile-work-environment claim. But, the same article reports that Judge Sotomayor has been "far from a reliable vote" for plaintiffs in employment discrimination cases. According to the WSJ, "In 1999, for example, she ruled against a black nurse, who claimed she had been fired from Staten Island University Hospital in New York due her race and age and the fact that she had suffered a debilitating injury. Judge Sotomayor ruled that the plaintiff, Wendy Norville, could move ahead on her disability claim, but tossed out the race and age claims."
This is just the beginning. More information - and of course, analysis - will be forthcoming. Also, for a more in depth consideration of Judge Sotomayor's opinions, please see the four part series at SCOTUSBlog. (Part I of the series is here.)
Tuesday, May 26, 2009
As expected, the reaction to the nomination of Second Circuit Judge Sonia Sotomayor (correct pronunciation here) has been swift in coming. First, some facts. According to Orin Kerr at the VC, Judge Sotomayor is "the third Yale Law grad of the nine Justices on the Court; the sixth Catholic; the ninth former court of appeals Judge; and the first Second Circuit judge to get the nod since Thurgood Marshall in 1967." In addition, Judge Sotomayor has served as a district court judge, thus in the words of President Obama, "Walking in the door she would bring more experience on the bench, and more varied experience on the bench, than anyone currently serving on the United States Supreme Court had when they were appointed."
With the nomination announced, all that remains is the confirmation proceedings. WIth the Democratic caucus currently holding a 59-40 advantage that is expected to increase to 60-40 with the likely ruling that Al Franken will be the new Democratic Senator from Minnesota, the confirmation should be fairly easily accomplished. (Time Magazine is already predicting that this ease based on Sotomayor's qualifications as well as the dynamics of the Senate.) However, this does not mean that there will not be bumps along the way. While most on the Republican side of the aisle are keeping quiet for the moment, Senator McConnell has made it a point to remind everyone that "the Senate is not a rubber stamp" and also promised to "fairly," but "thoroughly," evaluate the nominee. However, the ABA Journal has already outlined four potential lines of attack, including that she "is not smart enough;" "is a judicial activist;" "is dismissive of positions with which she disagrees;" and " is too gruff and impersonable." It looks like the ABA might be onto something, as the few statements from the right that are trickling out describe Judge Sotomayor as "a judge who will put the law above her own personal political philosophy" (Mitt Romney); an "avowed judicial activist" (Americans United for Life); and "a nominee whom he can count on to indulge her own liberal biases"(Ed Whelan). For their part, the feminist writers note that Sotomayor is likely to face gender-based attacks as well, such as her lack of children and even her weight.
The confirmation process should be be interesting to watch. Sotomayor has a long judicial record, and has made some interesting comments about the judicial role. In Part II of this round-up, we'll explore the nomination in more detail. There is so much more that is being said. We'll also have an analysis of the pick. Please return to this space as your source for all things nomination related. We will do our best to cover and analyze all major developments.
The Federalist Society and the Heritage Foundation will co-host a program titled Counterterrorism and the Obama Administration on Thursday, 5/28, at the Capitol Visitor Center. (Register here.) From the program description:
President Obama has decided to close Guantanamo and reassess our counterterrorism policies. The leader of the Pakistani Taliban has threatened "an attack in Washington that will amaze everyone in the world." What happens next? What legal structures can keep America safe against terrorist attacks? Should the law of armed conflict maintain its primacy? Can ordinary criminal courts successfully try terrorist suspects? Should specialized national security courts be created? What interrogation, surveillance and intelligence tools are essential to prevent future attacks?
Here's the line-up:
THURSDAY, MAY 28
9:00 a.m. – 9:15 a.m.
Registration (Continental breakfast available)
9:15 a.m. – 10:45 a.m.
Panel 1: Detention and Trial of Terrorist Suspects
- Jonathan Hafetz, Esq., American Civil Liberties Union
- Elisa Massimino, Chief Executive Officer and Executive Director, Human Rights First
- Andrew C. McCarthy, Senior Fellow, National Review Institute
- David B. Rivkin, Jr., Partner, Baker & Hostetler LLP
- Charles D. "Cully" Stimson, Senior Legal Fellow, Center for Legal and Judicial Studies, The Heritage Foundation, and former Deputy Assistant U.S. Secretary of Defense (Detainee Affairs)
- Moderator: The Hon. Edwin Meese, III, Ronald Reagan Distinguished Fellow in Public Policy and Chairman, Center for Legal and Judicial Studies, The Heritage Foundation
10:45 a.m. – 11:00 a.m.
11:00 a.m. – 12:30 p.m.
Panel 2: Preventing Attacks through Interrogation and Transfer of Terrorists Suspects
- Deborah Pearlstein, Associate Research Scholar, Woodrow Wilson School of Public and International Affairs, Princeton University
- Gabor Rona, Acting Director of Law and Security and International Legal Director, Human Rights First
- The Hon. Edwin D. Williamson, Sullivan & Cromwell LLP and former Legal Adviser of the U.S. Department of State
- Benjamin Wittes, Senior Fellow, Governance Studies, Brookings Institution
- Moderator: William Kristol, Founder and Editor, The Weekly Standard
12:30 p.m. – 12:45 p.m.
12:45 p.m. – 2:45 p.m.
Luncheon and Panel 3: Preventing Attacks through Surveillance and Intelligence
- Mike German, Policy Counsel, American Civil Liberties Union
- Kate Martin, Director, Center for National Security Studies
- Prof. Nathan A. Sales, Assistant Professor of Law, George Mason University School of Law and former Deputy Assistant Secretary, U.S. Department of Homeland Security
- The Hon. George J. Terwilliger III, White & Case LLP and former Deputy U.S. Attorney General
- Moderator: Stewart A. Baker, Steptoe & Johnson LLP and former Assistant Secretary for Policy, U.S. Department of Homeland Security
2:45 p.m. – 3:00 p.m.
- The Hon. Kenneth L. Wainstein, O'Melveny & Myers LLP and former Assistant U.S. Attorney General for National Security
Monday, May 25, 2009
Mohammed Jawad, detained at Guantanamo at age 12 or 18 (depending on whom you talk to), is stuck in limbo at Guantanamo until the Obama administration works out its new detention and trial policies for Guantanamo detainees. Jawad's attorneys, frustrated by the delays and potential changes in policies just as Jawad's military trial started going his way, sought an order last week from Afghan courts to release Jawad, reports the NYT. The lawyers argue that Afghanistan's constitution at the time of Jawad's capture did not allow for the extradition of prisoners to another country.
Any order from the Afghan courts could only exert diplomatic pressure--not legal pressure--against the U.S. and U.S. courts. But Jawad's move to seek relief from the Afghan judiciary is also calculated to keep public attention on this troubling case of the (perhaps) youngest detainee, caught between an old military tribunal system and a (potentially) new one.
The case highlights the new due process problems arising from the administration's review of detention policy and potentially revamped military tribunals. As Jawad's military attorney said in the NYT piece: "We were in a winnning posture in the trial, so to now come along and change the rules in the middle of the game, who knows what's going to happen." Given the options President Obama set out in his speech last week, it's not even obvious that Jawad will be subject to a revamped military tribunal--especially because there may not be evidence to convict him. (Jawad's military judge threw out his confessions last October, because Afghan police threatened to kill his familly.) If not, and if he's not moved to an Article III court, he could fall into Obama's fifth category of detainees--those subject to (apparently) indefinite detention.
Friday, May 22, 2009
President Obama this week issued a memorandum for agency heads that restores the federalism and preemption principles in Executive Order 13132 (August 10, 1999, "Federalism," Sec. 4, "Special Requirements for Preemption") and directs agencies to include statements of preemption in regulations "only when such statements have a suffiicent legal basis" and to review existing regs to ensure they meet these standards.
The memorandum marks a significant shift from the Bush administration attempts to preempt through the back door--adding preemption provisions into regulatory preambles and attempting to preempt without clear congressional intent or direct conflicts with federal law. These attempts were most recently highlighted in Wyeth v. Levine, in which the Court ruled that FDA regulations did not preempt a state tort verdict. (Recall that the Bush administration slipped a preemption clause into the preamble of the FDA regs, but this clause ultimately did not play a role in the case at the Supreme Court. Instead, the Bush administration claimed that the state tort verdict conflicted with FDA regs and that FDA regulatory preemption reflected congressional intent.)
Preemption claims--but somewhat more modest claims--will be highlighted again, when the Court rules on Cuomo v. Clearing House Ass'n, the case argued on April 28, dealing with whether regulations of the Office of the Comptroller of the Currency, which interpret the National Bank Act to preempt state enforcement of state law against national banks, preempted New York's then AG Elliot Spitzer's investigation into lending practices of certain banks. (The National Bank Act provides that "[n]o national bank shall be subject to any visitorial powers except as authorized by Federal law, vested in the courts of justice of such as shall be, or have been exercised or directed by Congress or by either House thereof." OCC regs interpreted this to preempt state enforcement of state laws regulating national banks.)
Taking on some of the Bush administration backdoor preemption practices and broad preemption claims (as in Wyeth v. Levine), the memo lists two restrictions and an instruction for agencies:
1. Heads of departments and agencies should not include in regulatory preambles statements that the department or agency intends to preempt State law through the regulation except where preemption provisions are also included in the codified regulation.
2. Heads of departments and agencies should not include preemption provisions in codified regulations except where such provisions would be justified under legal principles governing preemption, including the principles outlined in Executive Order 13132.
3. Heads of departments and agencies should review regulations issued within the past 10 years that contain statements in regulatory preambles or codified provisions intended by the department or agency to preempt State law, in order to decide whether such statements or provisions are justified under applicable legal principles governing preemption. Where the head of a department or agency determines that a regulatory statement of preemption or codified regulatory provision cannot be so justified, the head of that department or agency should initiate appropriate action, which may include amendment of the relevant regulation.
How has the Obama administration done on this?
The administration defended the pro-preemption position in Cuomo based upon Chevron deference to OCC's interpretation of the "text, structure, and purposes" of the National Bank Act. Its argument is much closer to the principles in EO 13132 than the Bush administration's practices and its arguments in Wyeth v. Levine. EO 13132 states, in relevant part (Sec. 4):
(a) Agencies shall construe, in regulations and otherwise, a Federal statute to preempt State law only where the statute contains an express preemption provision or there is some other clear evidence that the Congress intended preemption of State law, or where the exercise of State authority conflicts with the exercise of Federal authority under the Federal statute.
(b) Where a Federal statute does not preempt State law . . . agencies shall construe any authorization in the statute for the issuance of regulations as authorizing preemption of State law by rulemaking only when the exercise of State authority directly conflicts with the exercise of Federal authority under the Federal statute or there is clear evidence to conclude that the Congress intended the agency to have the authority to preempt State law.
The dispute in Cuomo turns in part on what Congress meant by "visitorial powers"--whether this phrase and other sections show "clear evidence to conclude that the Congress intended the agency to have the authority to preempt State law"--and not whether an agency can preempt by slipping a preemption clause into a regulatory preamble. Still, while the "clear evidence" standard in (b) is closer in Cuomo v. Clearing House Ass'n than in Wyeth v. Levine, the evidence of congressional intent in Cuomo certainly isn't clear to everyone.
President Obama in his national security speech yesterday identified five categories of detainees in the conflict against terrorists: those who can be tried in Article III courts for violations of U.S. law; those who can be tried in military commissions for violations of the law of war; those who have been ordered released by the courts; those who can be transferred to other countries; and those who pose a continuing threat to the United States, but cannot be tried in Article III courts or military tribunals (presumably because the government couldn't get a conviction).
According to President Obama, this fifth category--those "who pose a clear danger to the American people"--"is the toughest single issue that we will face."
The administration is clearly, er, struggling with this. On March 13, it filed in the habeas cases in the District Court for D.C. a proposed definition of detainable individuals at Guantanamo Bay--which presumably also reflects the administration's position for detention of these individuals outside Guantanamo Bay--that purported to respect the authority and bounds set by the AUMF, international law, and U.S. courts. Here's that proposed definition:
The President has the authority to detain persons that the President determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, and persons who harbored those responsible for those attacks. The President also has the authority to detain persons who were part of, or substantially supported, Taliban or al-Qaida forces or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act, or has directly supported hostilities, in aid of such enemy armed forces.
Three district court judges have now ruled on this definition. (Judge Royce Lamberth ruled just yesterday.) Two of them--Bates and Lamberth--ruled that the administration's proposal to detain those who "substantially supported" terrorist organizations and those who "directly supported hostilities" fell outside the bounds of the AUMF and the laws of war. The third, Walton, read the "substantial support" portion of the definition most narrowly to avoid this problem.
On the same day that Lamberth wrote--and just two days after Bates wrote--President Obama claimed in his national security speech, teeming with references to "the rule of law" and respect for the coordinate branches of government, that his administration could detain this fifth class of individuals, those who pose a threat to the United States, but can't be convicted in court. Here's what he said:
[T]here may be a number of people who cannot be prosecuted for past crimes, in some cases because evidence may be tainted, but who nonetheless pose a threat to the security of the United States. Examples of that threat include people who've received extensive explosives training at al Qaeda training camps, or commanded Taliban troops in battle, or expressed their allegiance to Osama bin Laden, or otherwise made it clear that they want to kill Americans.
This last example doesn't even fit within the administration's proposed definition to the D.C. District Court, much less within the judges' rulings on the proposed definition. And while expressing allegiance to Osama bin Laden may have fit within the adminsitration's proposed definition, it doesn't square with the rulings of at least two judges, both of whom ruled the same week as the speech.
The speech, to be sure, was just a speech; it wasn't a court filing or the final report from the administration's Special Task Force on Detention Policy. But it seems to reflect, once again, an administration claiming respect for the courts and the law, but acting as though it has much broader authority.
Thursday, May 21, 2009
I spoke this afternoon with Professor Rick Pildes (NYU) about Free Enterprise Fund v. Public Company Accounting Oversight Board, the D.C. Circuit case upholding the PCAOB against Appointment Clause and separation-of-powers challenges. The Supreme Court granted cert. on Monday. (I posted on the case, with links to the opinion and my edited version of the opinion, here.)
Pildes filed an amicus brief in the D.C. Circuit on behalf of seven former SEC chairmen, arguing in support of Congress's authority to create the PCAOB under the control of the SEC (itself an independent agency) and to vest appointment of its members--who, Pildes argued and the D.C. Circuit ruled, are "inferior officers"--in the SEC.
We discussed the role of the PCAOB in the Sarbanes-Oxley Act, the plaintiffs' arguments in Free Enterprise, and implications of the case beyond the PCAOB. The entire interview is here (about 15 minutes, MP3 format). Here are some highlights:
On Presidential Control Over Executive Agencies and the Unitary Executive Theory:
[The plaintiffs are] certainly opening up much larger questions about how much control the President has to have under Article II of the Constitution over the regulatory state, over all the administrative structures of government. And as you know, this has been an on-going battle certainly since the New Deal, at the very least, but a battle that really revived during the 1980s, when arguments in favor of what’s called the Unitary Executive Branch vision of Article II became much more pronounced. And proponents of the Unitary Executive Branch view of Article II argue that the independent agencies are in fact unconstitutional, that the President has to have everybody who is implementing or executing federal law under his direct control, which means that he has to have the ability to fire them at will as a way of influencing the performance of their duties. Now as you say, the plaintiffs in the case don’t purport to be challenging the 70-year old principle . . . that independent agencies are constitutional, but at the bottom of their case I think you’re right to recognize that there are very fundamental questions about how exactly the Court understands the President’s Article II powers and how the Court understands how much control the President must have over agencies, or contrarily how much independence Congress can give administrative agencies. . . . There’s some concern about independent agencies that drives all of this at some deep level of this case.
On the Larger Implications of the Case:
On the Larger Implications of the Case:
As we all know, cases that are framed in narrow terms often implicate much larger principles. And I think that’s exactly what’s going on here. I think the plaintiffs, as plaintiffs or petitioners typically want to do, want to present their case as a very narrow challenge that doesn’t require the Court to revisit big principles of presidential power over agencies. But I think anybody looking at this case will recognize that the Court will have to address those kinds of issues to some extent in resolving this case. So there will be implications for these bigger issues, however the Court resolves this case.
One implication is to understand what agency independence means as a matter of statutory law. So independence of [independent commissions] has always been tied to Congress protecting the commissioners by saying that they cannot be removed by the President from office except for good cause. So inevitably this case raises questions about How big a constraint is that? What does good cause mean? And that will have implications for a lot of the agencies. So the more the Court waters down what the good cause removal constraint means, the more that will give the President more control over the independent agencies than under an understanding of independence and of good cause protection that is much more robust.
Second, if they strike the Board down, they will inevitably say things about the amount of power and control the President has to have over the officials who implement and execute federal law. Whatever is said about those questions will have implications for the power relationships between the President and what we think of as the independent agencies.
President Obama's speech today outlining his plans for Guantanamo Bay and detainees there reflects the sharp break that the Obama administration made from the Bush administration on inherent executive authority, the rule of law, and transparency in the conflict against terrorists. Some highlights:
On Torture: The President "categorically reject[ed] the assertion that [so-called enhanced interrogation techniques are] the most effective means of interrogation," and "[w]hat's more, they undermine the rule of law." "In short, they did not advance our war and counterrorism efforts--they undermined them, and that is why I ended them once and for all."
On Guantanamo Bay: The President, after comparing the few benefits (merely "three convictions in over seven years") to the many drawbacks (including the loss of moral authority, our allies' objections, and its recruitment value for terrorists), concluded: "By any measure, the costs of keeping it open far exceed the complications involved in closing it. That's why I argued that it should be closed throughout my campaign, and that is why I ordered it closed within one year."
On Trial of Detainees: The President said that "whenever feasible, we will try those who have violated American criminal laws in federal courts . . . ." Detainees who violated laws of war will be tried in military commissions with new rules that bring them "in line with the rule of law." Those ordered released by the courts--and President Obama specifically cited the Uighurs--must be released, because the President, too, is "bound by the law." Yet others will be transferred to other countries. And finally for those who pose a continuing danger, but who cannot be prosecuted, the administration will apparently work out a plan with the aid of Congress and within the rulings of the courts: "In our constitutional system, prolonged detention should not be the decision of one man. If and when we detrmine that the United States must hold individuals to keep them from carrying out an act of war, we will do so within a system that involves judicial and congressional oversight."
On Transparency in Government: The President said that there is a delicate balance between security concerns and transparency, but "[w]henever we cannot release certain information to the public for valid national security reasons, I will insist that there is oversight of my actions--by Congress or by the courts." Specifically, the President committed to overhauling his administration's use of the State Secrets Privilege; but he also reiterated his opposition to any independent commission to investigate Bush administration excesses, saying that "our existing democratic institutions are strong enough to deliver accountability."
In these areas and throughout the speech, the President references "the rule of law," Congressional and judicial oversight, and transparency and accountability--seldom-heard language from the Bush administration in matters of national security. Clearly the Obama administration represents something different.
Or does it?
Recall that the Obama administration already adopted positions of the Bush administration in two closely watched and key constitutional areas--the definition of detainable individuals, and the State Secrets Privilege. As to the former, the administration proposed a definition in the habeas cases in the D.C. District that was all but the same as Bush administration definition of "enemy combatant." (Two judges now have ruled on the proposed definition. One adopted it in its entirety; the other dropped a component of it that wasn't supported by law.) And as to the latter, the administration asserted precisely the same sweeping State Secrets Privilege in Mohamed, the extraordinary rendition case before the Ninth Circuit. (The Ninth Circuit ruled against the administration.) (In another case, the administration sought to appeal a lower court's order extending habeas to Bagram Airfield in Afghanistan.)
And even in today's speech, the President supported some of his positions primarily on the basis of policy, and only secondarily on the basis of constitutionality. The President's position on torture is a good example: He banned it (primarily) because it "did not advance our war and counterterrorism efforts," and (only secondarily--"what's more") because it "undermine[s] the rule of law."
In the speech today--as in prior speeches, actions, and orders--President Obama articulated a markedly different balance of powers than we saw from the Bush administration. There are no claims of inherent executive authority, absolute secrecy with regard to national security concerns, Presidential authority without regard to U.S. or international law, or even strained interpretations of U.S. and international law. And the speech itself reflected exactly the kind of transparency that the President praised in the speech.
But if key policies don't change, does any of this matter? Perhaps, but we can't know yet. Some policies, after all, may change: the President committed to try certain detainees in regular Article III courts, for example, and he committed to releasing detainees already ordered to be released. Moreover, other hold-over policies might turn out to be well justified; for example, the administration's reassertion of the sweeping State Secrets Privilege in Mohamed might turn out to meet a much higher threshold--a Totten threshold.
But we don't know yet how many detainees will actually be transferred to Article III courts (and whether the administration will be able to overcome objections to such transfers), whether the administration will actually be able to find a home for the Uighurs, and whether the administration was validly protecting national security by asserting a sweeping State Secrets Privilege in Mohamed. Until we know, it's difficult to assess the benefits of the administration's new positions on separation of powers and transparency.
In the meantime, President Obama's transparency means at least that we can hold him (and others) accountable: We at least know who to blame for what. But as the President suggested in his speech today, voters were able to do that in the last election. And they did it with a much less transparent executive.
Wednesday, May 20, 2009
The Supreme Court on Monday granted cert. in Free Enterprise Fund v. Public Co. Accounting Oversight Board, the D.C. Circuit case upholding (2-1 and 5-4 against en banc review) that portion of the Sarbanes-Oxley Act that created an independent Board, the PCAOB, to enforce Sarbanes-Oxley. PCAOB members are appointed by and under the authority of the SEC, itself an independent agency. The plaintiff-appellants argued that the PCAOB violates the Appointments Clause and separation-of-powers principles. The D.C. Circuit rejected those arguments and upheld the Act. The full D.C. Circuit opinion is here; my edited (and substantially shorter) version is here.
The plaintiff-appellants argued that the PCAOB violates the Appointments Clause, because PCAOB members are "officers" by virtue of their independence. (Under the Appointments Clause, only the President may appoint, with the advice and consent of the Senate, "officers"; Congress may vest the appointment of "inferior officers" in the President, the courts, or heads of departments.) Plaintiff-appellants point to members' appointments by the independent SEC (not the President), the heightened standard for removing a member (only if the member "has willfully violated" any provision of the Act), and the PCAOB's authority to investigate violations of Sarbanes-Oxley without SEC control or oversight.
The D.C. Circuit flatly rejected these arguments, holding that PCAOB members were subject to greater control than Coast Guard judges in Edmond v. United States and the independent counsel in Morrison v. Olson, both upheld by the Court.
The plaintiff-appellants' separation-of-powers argument is more interesting. This argument is based upon the excessive attenuation of Presidential control over the PCAOB. In short, they argue the President can direct the independent PCAOB only through the independent SEC, creating an inulated body within an insulated body.
For unitary executives--who in their purest form reject any independent body within the executive branch--the PCAOB is doubly troubling. It means that the President can't absolutely control even those who control an insulated board--a kind of double-reinforced wall between the law enforcers (the PCAOB) and the President, and thus a big problem for those who see the executive as unitary. Free Enterprise Fund gives them an opportunity to test their theory.
The D.C. Circuit rejected the separation-of-powers argument. That court held that a President's attenuated control over independent agencies has been tolerated since Humphrey's Executor v. United States in 1935.
But the claim may receive a different reception at the Supreme Court. The plaintiff-appellants led their cert. petition with this claim, putting the issue squarely before the Court. But they also carefully tempered the claim by citing and navigating Edmond and Morrison. The argument thus appears modest--based upon, not attempting to overturn, these landmark cases--but it also opens the door for a much more sweeping ruling on independent agencies, the unitary executive theory, and, ultimately, Congress's authority to create and empower agencies within the executive branch.
Tuesday, May 19, 2009
Judge John D. Bates (D.D.C.) ruled today that the government lacks authority to detain individuals in the global struggle against terrorism based merely upon their "substantial support" of Taliban, al Qaida, or associated forces or merely upon their "direct support" in aid of such forces.
Bates's ruling comes in response to the Obama administration's refined position on detainable individuals, filed with the court on March 13. Under the Obama administration's preferred definition, the government would have had authority to detain not only those who "planned, authorized, committed, or aided the terrorist attacks" of 9/11 and anyone who harbored them, but also those who "substantially supported" Taliban, al Qaida, or associated forces and those who "directly supported hostilities" in aid of those forces. In a separate case, Judge Walton (D.D.C.) previously approved the administration's preferred approach in its entirety.
Bates concluded that the government had authority under the AUMF and the laws of war to detain those who "planned, authorized, committed, or aided the terrorist attacks" for the same reasons that Walton so concluded.
But Bates broke with Walton on the "substantial support" component and ruled that the government lacked authority under the AUMF and the laws of war to detain those who merely "substantially supported" Taliban, al Qaida, or associated forces, or those who "directly supported" hostilities in aid of such forces. Bates suggested that allowing the administration to detain these individuals may run afoul of separation-of-powers principles (because the President would be operating beyond Congressional authorization and outside the laws of war) and nondelegation principles (because the administration's preferred interpretation would have meant that the AUMF was too vague and left the administration to make law).
Bates minimized the differences between his ruling and Walton's, however, writing that those detained based merely on "substantial support" or on "direct support" would likely also be detainable as "part of" a covered organization.
Bates's ruling didn't apply his revised definition to the detainees in the case, so we don't know yet how it'll play out--and whether he's right that the differences won't matter in practice. In theory, though, Bates's ruling represents a significant difference in its application of principles of international law, its reading of the AUMF, and its sensitivity to separation-of-powers concerns.
Monday, May 18, 2009
A split (5-4) Supreme Court ruled today in Ashcroft v. Iqbal that allegations in an ex-detainee's complaint against former AG Ashcroft and FBI Director Mueller for constitutional torts while in custody after 9/11 were too conclusory to withstand a motion to dismiss. The ruling leaves open the narrow possibility that the plaintiff Iqbal could amend his complaint to comply with the heightened pleading requirement, thus keeping Ashcroft and Mueller in the suit at least into discovery. But as a practical matter the Court made it all but impossible for Iqbal or other plaintiffs to sustain a civil suit for constitutional violations against high-level officials.
Iqbal sued Ashcroft, Mueller, and numerous other federal officials for detaining him as a person "of high interest" on account of his race, religioin, or national origin, in violation of his First and Fifth Amendment rights. He alleged that Ashcroft and Mueller "knew of, condoned, and willfully and maliciously agreed" to detain him because of his religion, race, or national origin," that Ashcroft was the "principal architect" of the policy, and that Mueller was "instrumental" in adopting and executing the policy, among other allegations.
The District Court denied Ashcroft and Mueller's motion to dismiss, because, relying on Conley v. Gibson, "it cannot be said that there [is] no set of facts on which [Iqbal] would be entitled to relief as against" Ashcroft and Mueller. Ashcroft and Mueller filed an interlocutory appeal in the Second Circuit. As that appeal was pending, the Supreme Court decided Bell Atlantic Corp. v. Twombly, which refined the standard for evaluating whether a complaint is sufficient to survive a motion to dismiss and retired the no-set-of-facts standard under Conley. The Second Circuit applied the Twombly standard and upheld the District Court's denial.
The Supreme Court applied Twombly and reversed. The Court ruled that vicarious liability claims are not actionable under Bivens, and so Iqbal had to plead--in more than a merely conclusory way--that Ashcroft and Mueller, through individual actions, violated the Constitution. Here, in alleging invidious discrimination in violation of the First and Fifth Amendments, Iqbal had to plead that Ashcroft and Mueller engaged in purposeful discrimination--more than "intent as volition or intent as awareness of consequences." This Iqbal failed to do. The Court:
Two working principles underlie our decision in Twombly. First, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. . . . Second, only a complaint that states a plausible claim for relief survives a motion to dismiss. . . .
Iqbal's complaint failed on both:
[The] bare assertions [in the complaint, and quoted above] amount to nothing more than a "formulaic recitation of the elements" of a constitutional discrimination claim, namely, that petitioners adopted a policy "'because of,' not merely 'in spite of,' its adverse effects upon an identifiable group." As such, the allegations are conclusory and not entitled to be assumed true. . . .
Taken as true, [Iqbal's] allegations are consistent with petitioners' purposefully designating detainees "of high interest" because of their race, religion, or national origin. But given more likely explanations, they do not plausibly establish this purpose.
What "likely explanations"? The post-9/11 arrest and detention policy resulted in disproportionate detention of Arab Muslims, because 9/11 hijackers were Arab Muslims and members of an Islamic fundamentalist organization. According to the Court, "[i]t should come as no surprise that a legitimate policy directing law enforcement to arrest and detain individuals because of theri suspected link to the attacks would produce a disprate, incidental impact on Arab Muslims, even though the purpose of the policy was to target neither Arabs nor Muslims." Because of this likely alternative explanation, the Court ruled that Iqbal's complaint "has not 'nudged [his] claims' of invidious discrimination 'across the line from conceivable to plausible.'"
While the Court left open the theoretical possibility that Iqbal could amend his complaint to comply with the higher pleading standard in Twombly's "two working principles," the practical effect of the case will be to severely curtail constitutional tort claims against high-level officials. Plaintiffs often simply lack the information about high-level officials to plead a case with requisite specificity and plausibility to satisfy the standard. If Iqbal's claims were insufficient on these points, just imagine the claims a plaintiff would need to make--and where a plaintiff would get the information to support those claims.
And more: As Justice Souter wrote in dissent (for himself and Justices Stevens, Ginsburg, and Breyer), Ashcroft and Mueller conceded that "a supervisor's knowledge of a subordinate's unconstitutional conduct and deliberate indifference to that conduct are grounds for Bivens liability"--acknowledging an alternative, non-vicarious liability form of supervisory liability. Iqbal even more clearly satisfied this standard, but the Court apparently ignored the concession. The result, according to Souter: The Court "eliminat[ed] Bivens supervisory liability entirely."
Friday, May 15, 2009
The state sovereignty movement speaks with many voices. At its modest, the movement merely seeks to release states from unfunded federal mandates and federal strong-arming through conditioned spending programs. At its strongest, some in the movement advocate secession.
But despite significant differences within the movement, there seems to be broad agreement that the Tenth Amendment protects states from federal interference more than the Supreme Court has held in cases like New York v. United States (federal government cannot commandeer a state's legislative process by requiring a state to enact and enforce a federal regulatory program), Printz v. United States (federal government cannot require state or local officials to enforce federal law), and South Dakota v. Dole (federal government may place certain conditions upon federal funds).
Just Wednesday, the Oklahoma Senate passed House Concurrent Resolution 1028, "A Concurrent Resolution claiming sovereignty under the Tenth Amendment to the Constitution of the United States over certain powers; serving notice to the federal government to cease and desist certain mandates; providing that certain federal legislation be prohibited or repealed; and directing distribution." Here are some highlights:
WHEREAS, the scope of power defined by the Tenth Amendment means that the federal government was created by the states specifically to be an agent of the states . . .
WHEREAS, the Tenth Amendment assures that we, the people of the United States of America and each sovereign state in the Union of States, now have, and have always had, rights the federal government may not usurp . . .
[therefore be it resolved]
THAT the State of Oklahoma hereby claims sovereignty under the Tenth Amendment to the Constitution of the United States over all powers not otherwise enumerated and granted to the federal government by the Constitution of the United States.
THAT this serve as Notice and Demand to the federal government, as our agent, to cease and desist, effective immediately, mandates that are beyond the scope of these constitutionally delegated powers.
THAT all compulsory federal legislation which directs states to comply under threat of civil or criminal penalties or sanctions or requires states to pass legislation or lose federal funding be prohibited or repealed.