Constitutional Law Prof Blog

Lousin and Mirza Rethinking Reapportionment

Professor Ann Lousin (John Marshall) and Professor Leona Mirza (North Park U., Dept. of Mathematics) argued in last week's National Law Journal that the best way to avoid an electoral college winner beating a popular vote winner (as in the 2000 presidential election) is to increase the number of U.S. representatives.

Lousin and Mirza argue that the Huntington-Hill method of determining the number of each state's representatives works just fine to achieve proportional representation in the House.  But when the Electoral College adds Senate representation to determine the number of presidential electors, the results favor small states.

Lousin and Mirza suggest adding representatives to the House by using the smallest state's population as the measure for one representative.  States with multiples of the smallest state's population would receive a proportional multiple of representatives.  Lousin and Mirza:

We suggest that the best, easiest and cleanest way to challenge the composition of the Electoral College would be to replace the Huntington-Hill method of determining the total number of U.S. representatives every decade with a process using the smallest-populated state as its key.  The state with the smallest population, currently Wyoming, would be awarded one U.S. representative (and two senators, of course).  A state that had twice Wyoming's population would be awarded two U.S. representatives; a state with three "Wyomings" would have three representatives, and so forth.

The result would be a House with over 600 members.  "Wyoming would still have only one, but California would have 68 instead of 53.  In all probability, more than 40 states would increase their number of U.S. representatives."  Unwieldy?  No, they argue: Most of the House's work is done in committees, and it rarely meets in full session.

Lousin and Mirza's solution is an alternative to the National Popular Vote movement.  National Popular Vote bills are state legislation that would bind a state to allocating its Electoral College votes in proportion to the state's popular vote (and not by winner-take-all rules).  Five states have enacted National Popular Vote bills, and a couple dozen others are considering them.  The laws won't take effect until states comprising a majority of the Electoral College sign on.

SDS

Aspiring Court Cartoon Captioners - Deadline Imminent

The New Yorker has a regular feature that provides a cartoon drawing requiring a caption; the March 1, 2010 contest (#229) with its drawing by Paul Noth might inspire some contributions from ConLaw buffs.  Enter at New Yorker website here.   The deadline is 11.59 pm Sunday, February 28, 2010; 250 character limit.

RR

Maryland Atty General Opinion on Recognition of Out-of-State Same-sex Marriages

In a word: yes.

In a few words: a qualified yes.

In the concluding words of the 53 page opinion of the Maryland Attorney General, 95 Md. Op. Att'y 3 (2010)(download here):

While the matter is not free from all doubt, in our view, the [Maryland Supreme] Court is likely to respect the law of other states and recognize a same-sex marriage contracted validly in another jurisdiction. In light of Maryland’s developing public policy concerning intimate same-sex relationships, the Court would not readily invoke the public policy exception to the usual rule of recognition.  You have posed the question in the abstract, but, of course, context matters.  For example, to the extent that a particular matter is governed by federal law, the federal Defense of Marriage Act, which limits marriage for
federal purposes to opposite-sex couples, would prevent recognition
of the marriage for that particular purpose. Finally, with respect to your question concerning the Governor’s authority to issue an executive order, the Governor cannot legislate through an executive order. 

RR

Larry Tribe, Legal Services for the Poor, and Sharon Browne

ConLaw Prof Larry Tribe (pictured left) of Harvard Law School  "will join the Justice Department next week as a senior and counselor focusing on expanding poor people's access to legal services" according to the Washington Post and announced by Harvard Law School. 

The WaPo article notes, "The announcement comes a week after senior leaders at the department appeared at a Washington conference to draw attention to the large caseloads handled by public defenders and other challenges in providing legal services to low-income defendants."

Thus, it seems Tribe's efforts will be directed at the criminal justice system.

Meanwhile, on the civil side, Sharon Browne has been nominated to be the Director of the Legal Services Corporation - - - a choice objectionable to many civil rights and progressive legal organizations who support civil legal services for the poor.  According to the Alliance for Justice,  Senate Minority Leader Mitch McConnell (R-KY) proposed that Sharon Browne, a senior attorney at the Pacific Legal Foundation ("PLF"), be nominated to fill a vacancy on the Legal Services Corporation ("LSC") Board of Directors, and Obama  sent that nomination to the Senate for confirmation or rejection.   In addition to her work at PLF, the Alliance for Justice objects to Browne because in 1992, "Browne was one in a group of plaintiffs who filed a lawsuit, Brosterhous v. State Bar of California,challenging the State Bar's use of attorneys' dues money to advocate for providing adequate legal services for the poor in the legislature."

RR

Gormley on Starr and Clinton

ConLawProf (and Interim Dean) Ken Gormley (pictured right) of Duquesne University Law School has just published THE DEATH OF AMERICAN VIRTUE: Clinton vs. Starr.

The review in the NYT notes that "unlike some other commentators, Gormley allows for the possibility that even the most rabid-seeming players might have acted out of honorable considerations."  Based on an interview with the federal district judge hearing the original sexual harassment lawsuit, Gormley also reveals that she contemplated finding Clinton in criminal contempt, which would have ended Clinton's political career in a "nanosecond."  Yet the tenor of the 800 page book, at least according to the NYT review, is that the Clinton impeachment was all so unnecessary (quoting Starr) and diversionary.

The political relevance of Gormley's book is obvious.  But it also seems an essential sequel to Clinton v. Jones, in which the Court unanimously rejected Clinton's constitutional arguments to stay the trial until after his presidency had ended.

RR

Betting on Bush v. Gore?

From a new article in the ABA Journal, we learn one of our Supreme Court Justices had a "financial stake" in Bush v. Gore  - - a stake the Justice quickly acted to obliterate:

Dear Obie and Betty Nan:

It now appears remotely possible that the Florida election case might come to our court. I therefore feel obliged to cancel all my election bets in any way dependent on the Florida vote. I hope you will agree to let me do this.

Sincerely,

As one of the recipients of the faxed letter explains:

"In the beginning, it was simple. We each bet $1 on one or two close races, shook hands and paid off the next time we had dinner together. But in a few years, without deliberate planning, the scope of our betting expanded. The money involved remained insignificant. The wagering terms, however, became complicated. On some Election Days we each wagered a dollar on two dozen or more individual races. To add complexity and variety to our game, we changed the terms regularly. Sometimes we simply chose a winner. More often we wagered on spread, voter percentage or by what percentage each party would win in a legislature."

More revelations by Bill Rehnquist's friend, Herman Obermayer ("Obie"), about the former Chief Justice make for an interesting read.

RR

The Senate's Catch XXII and the Constitutional Option

The Senate can do away with its cloture requirement by a mere majority vote, writes Yale Law Journal articles editor Aaron Zelinsky today on the Huffington Post.  Zelinsky argues that Senate Majority Leader Harry Reid has unnecessarily assumed that this Senate rules change would require 67 votes (which he doesn't have) and thereby weakened his hand in negotiating with the minority.

The cloture rule, requiring 60 votes to end debate, and the rules-change rule are both in Senate Rule XXII:

at any time a motion signed by sixteen Senators, to bring to a close the debate upon any measure, motion, other matter pending before the Senate, or the unfinished business, is presented to the Senate, the Presiding Officer . . . shall . . . submit to the Senate by a yea-and-nay vote the question:

"Is it the sense of the Senate that the debate shall be brought to a close?"  And if that question shall be decided in the affirmative by three-fifths of the Senators duly chosen and sworn--except on a measure or motion to amend the Senate rules, in which case the necessary affirmative votes shall be two-thirds of the Senators present and voting--then said measure, motion, or other matter pending before the Senate, or the unfinished business, shall be the unfinished business to the exclusion of all other business until disposed of.

In short, 67 votes are required to close debate on a measure to amend the Senate rules (including the cloture rule itself).  (The late Senator Kennedy aptly called this double-bind to the cloture rule a "Catch XXII.")

But Zelinsky points out that nothing in the Constitution requires this super-majority to change the Senate rules.  He argues that the Constitution specifies when the Senate must vote by more than a simple majority (as in trying impeachments, e.g.), that the Senate rules themselves are not subject by the Constitution to any super-majority, and that therefore changes to the Senate rules must default to the simple majority rule.  See U.S. v. Ballin ("the general rule of all parliamentary bodies is that, when a quorum is present, the act of a majority of the quorum is the act of the body.  This has been the rule for all time, except so far as in any given case the terms of the organic act under which the body is assembled have prescribed specific limitations . . . No such limitation is found in the Federal Constitution, and therefore the general law of such bodies obtains.").  Zelinsky concludes that Senator Tom Harkin's bill, Senate Resolution 416, to incrementally decrease the number of votes requires for cloture on a measure could pass now by a simple majority.

Others, including Senator Tom Udall, the Congressional Research Service, and Riddick's Senate Procedure, take a different position--that cloture on a fillibuster of a rules change requires 67 votes under Rule XXII, notwithstanding the constitutional default of a simple majority.  In other words, while the Constitution demands only a simple majority to establish rules, the Constitution also doesn't prohibit the rules themselves setting a more rigorous standard.  This is precisely what Rule XXII does, and it binds the Senate.

But these same sources also suggest that a simple majority can change the cloture rule at the beginning of a new Congress--the so-called "constitutional option."  Here's how it works.  Article I, Section 5 of the Constitution allows each House to determine its own rules (by a simple majority).  (Senate Rule V, which says that the Senate rules--including Rule XXII--"shall continue from one Congress to the next Congress unless they are changed as provided in these rules" (and thus taking us back to where we started) itself violates Article I, Section 5 in that it binds the new Senate to old rules and prevents the new Senate from determining its own rules.)  Thus at the beginning of each Congress--before the Senate has had a chance to (re)enact its rules--generally parliamentary law, including the simple majority rule, applies.  Under general parliamentary law, the new Senate can enact its own new rules by a simple majority.

This is exactly what Senator Udall is attempting in his Senate Resolution 396, now before the Senate Committee on Rules and Administration.

(Opponents of this tactic argue that only one-third of the Senate turns over at a time, and a quorum is always in existence.  Therefore the Senate doesn't need to reconstitute itself with each new Congress, and its rules, including Rule XXII, simply carry over.)

Martin Gold and Dimple Gupta spin out the constitutional option along with other possibilities in their Harvard Journal of Law & Public Policy piece, The Constitutional Option to Change Senate Rules and Procedures: A Majoritarian Means to Overcome the Fillibuster.

SDS

States and Guns

The New York Times reports today that fear of tighter gun regulations by the Obama administration has driven several states to loosen firearm regulations.  (We posted earlier this week on the Washington State Supreme Court's ruling incorporating the Second Amendment against Washington State.)

The states' actions may be motivated in part by concern for protecting Second Amendment rights, but they appear to be legislative efforts (not mandates by the courts).

At the same time, several states are considering some version of the Firearms Freedom Act--state legislation that declares that any firearms made and retained in-state are beyond the authority of Congress under the Commerce Clause, in effect nullifying such legislation.  Montana and Tennessee have already passed a version of this, and a dozen or so other states are considering it.

The FFA may be a bold political statement, but like so many other, similar nullification efforts that we've seen recently (and historically), it will have no constitutional effect.  That aside, the FFA appears to ignore the well established rule that Congress can regulate under the Commerce Clause activities that have a substantial effect on interstate commerce.  Firearms manufactured and retained within a single state certainly could have a substantial effect on interstate commerce, and Congress could ensure this through its fact-finding and by adding a "jurisdictional hook" to any federal legislation (as it did in the wake of Lopez to the Gun Free School Zone Act,18 U.S.C. Sec. 922(q)).

The FFA makes another constitutional mistake.  According to the FFA web-site, "[t]he FFA is primarily a Tenth Amendment challenge to the powers of Congress under the "commerce clause," with firearms as the object--it is a state's rights exercise."  Whatever the FFA is, it most certainly is not a "Tenth Amendment challenge."  Nothing in the text or history of the Tenth Amendment (or the Supreme Court's post-1995 Commerce Clause and Tenth Amendment cases) suggests that the Tenth Amendment limits the powers of Congress or gives rights to states.  It simply reserves powers to the states that aren't given to the federal government.  The core question--and the real thrust of the FFA--is whether Congress has power to regulate this items under the Commerce Clause.  This may (or may not) be an interesting issue, but it has little to do with the Tenth Amendment.

SDS

Oral Argument in Holder v. Humanitarian Law Project

The Supreme Court today heard oral arguments in Holder v. Humanitarian Law Project, the case testing the constitutionality of a portion of the Anti-Terrorism and Effective Death Penalty Act.  (We previously posted on the case here.)  The relevant section, 18 U.S.C. Sec. 2339B(a)(1), outlaws the “knowing” provision of “material support or resources” to a “foreign terrorist organization,” as determined by the Secretary of State.  The section defines “material support or resources” as follows:

 

any property, tangible or intangible, or service, including currency or monetary instruments or financial securities, financial services, lodging, training, expert advice or assistance, safehouses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel (1 or more individuals who may be or include oneself), and transportation, except medicine or religious materials.

 

18 U.S.C. Sec. 2339B(a)(1) (emphasis added).

 

The plaintiffs—a retired judge, a medical doctor, a human rights organization, and several nonprofit groups—brought the case as a preenforcement challenge to the statute and sought a declaration that the statute violated the First Amendment.  Plaintiffs sought to continue to teach and advocate the use of international law and other nonviolent means to reduce conflict, advance human rights, and promote peace on behalf of the Kurdistan Workers’ Party (PKK) and the Liberation Tigers of Tamil Eelam (LTTE), two organizations designated as “foreign terrorist organization[s]” by the Secretary of State.  Plaintiffs feared that their advocacy would violate the statute, resulting in a sentence up to 15 years in prison.  As the plaintiffs argued, and the government confirmed during oral argument today, the statute would make it a crime for plaintiffs to teach the PKK or LTTE human rights advocacy (or even English), to submit an amicus brief in federal court on behalf of the PKK or LTTE, to petition Congress or the United Nations for legal reform, or even to speak to the media on their behalf.

 

The Ninth Circuit ruled the statute void for vagueness.  Oral argument today did nothing to clarify it.

 

The Court struggled with whether the plaintiffs’ actions—teaching and advocacy—were speech (thus subjecting the statute to strict scrutiny, as a content-based restriction), or conduct (and thus subject to the much less rigorous test in O’Brien).  In getting there, the Court posed a variety of hypotheticals that took the parties far afield from the plaintiffs’ case—an “as applied” challenge to the statute.  The speech-conduct debate, conducted through the hypotheticals, only served to illustrate how vague the statute is, and in the end neither party (nor, apparently, any justice) could articulate just where the line is between speech and conduct under the statute.

 

Professor David Cole (Georgetown), for the plaintiffs, argued that the statute needed a specific intent element—that it could be saved if it required the government to show that a defendant specifically intended that its actions would further unlawful or terrorist ends of the group.  But this didn’t square with the government’s theory—that any support for a terrorist group is illegal, because even support for the lawful activities of the group might free up resources to be used for the unlawful activities of that group. 

There are two problems (at least) with this theory.  First, it doesn’t lend itself to easily identifiable boundaries, especially when the support is speech—“expert advice or assistance.”  There’s both an overbreadth problem and, as the lower court ruled, a vagueness problem when even the government can’t articulate the full sweep of the statute.  (Or when it does—as in saying that the statute prohibits an individual from filing an amicus brief on behalf of the PKK or the LTTE—its position runs so squarely up against the First Amendment and other constitutional values.)  Second, this argument sounds like an attempt at meeting strict scrutiny (for the content-based restriction on speech).  But, as Chief Justice Roberts pointed out, the government nowhere argued this before.

 

The net result—and where at least a couple on the Court seemed to end—is a good possibility of a remand.  If the Court determines that the plaintiffs’ activity is conduct, not speech, the Court may remand for application of the O’Brien test.  If the Court determines that the plaintiffs’ activity is speech, not conduct, the Court may remand for application of strict scrutiny.

 

Or, if the indeterminacy in the arguments today is any reflection of the vagueness of the statute, the Court may well uphold the lower court ruling and void the statute, as applied, for vagueness.

 

SDS

Washington Supreme Court Incorporates Second Amendment

The Washington Supreme Court ruled late last week in State of Washington v. Sieyes that the Second Amendment applies against the State of Washington by way of the Fourteenth Amendment Due Process Clause.  The decision came down less than two weeks before the U.S. Supreme Court is scheduled to hear arguments on the incorporation issue in McDonald v. City of Chicago.

The Washington case involved a 17-year-old young man charged with unlawful possession of a firearm--a loaded Bursa .380 semiautomatic under his car seat.  The trial court found the defendant guilty and sentenced him to 10 days' juvenile detention, 1 year of supervision, 30 hours of community service, and a $100 fine.  Sieyes appealed, arguing, among other things, that the Washington State general prohibition on possession of firearms by minors violated his Second Amendment right to bear arms.

The Washington Supreme Court ruled that the individual right to bear arms in the Second Amendment, see D.C. v. Heller, applied to the states under the Fourteenth Amendment Due Process Clause and the incorporation test set out in Duncan v. Louisiana.

The decision is surprising for its timing, for the issues it addresses, and for the issues it doesn't address.  As Justice Stephens wrote in concurrence, "Restraint is particularly appropriate here because the very question is currently pending before the United States Supreme Court. . . .  I do not believe this is an instance where [a state court ruling on a federal constitutional question can serve any purpose], particularly as our opinion is likely to be eclipsed before the ink it takes to print it is dry."

Indeed it's not clear what the Washington Supreme Court intended to accomplish with its ruling.  Its analysis draws heavily on Heller and follows a predictable path to incorporation under the Due Process Clause.  (The Washington court criticized the Second and Seventh Circuits for their restrained approaches, rejecting incorporation until the Supreme Court rules, and lauded the Ninth Circuit for its ruling incorporating the Second Amendment via the Due Process Clause.)  Thus the Washington Court said nothing new about Due Process incorporation that might guide or influence the Supreme Court. 

At the same time the Washington court ruled that its own state constitution also protected a right to bear arms and suggested that its own provision may well be stronger than the Second Amendment.  The analysis suggests that its entire ruling on the Second Amendment was not only unnecessary, but that its own constitutional provision provided a stronger basis than the Second Amendment for an individual right to bear arms.  But, oddly, the court deemphasized its analysis of its own state constitutional provision, hanging its hat (primarily) on the Second Amendment.

All the while the court entirely ignored incorporation via the Fourteenth Amendment Privileges or Immunities Clause--the claim that the appellants and others are pressing hardest at the Supreme Court.

This odd mix of timing, rulings, and non-rulings makes the case hard to explain.  Whatever the Washington court's purposes in issuing this ruling last week--simply to move it off the docket, or to guide or influence the Supreme Court--it might have done much better by limiting its ruling to the state constitutional issue.

SDS

ACS 2010 National Convention

The American Constitution Society will host its Eighth Annual National Convention in Washington, D.C., June 17-19, 2010.  Click here for more information and registration.

SDS

Pondering Iqbal

The Lewis & Clark Law Review just published its terrific symposium issue titled Pondering Iqbal--a reference to Ashcroft v. Iqbal, the Supreme Court's decision last term that heightened the pleading standard and resulted in countless dismissals, spawning an effort in Congress to return to a notice pleading standard.  Full papers are available at the Law Review's link here.

The Law Review put together an outstanding symposium issue, and all the papers are well worth a look.  Here are a few that jumped out at me:

Edward Brunet, The Substantive Origins of "Plausible Pleadings": An Introduction to the Symposium on Ashcroft v. Iqbal

Suzette M. Malveaux, Front Loading and Heavy Lifting: How Pre-Dismissal Discovery Can Address the Detrimental Effect of Iqbal on Civil Rights Cases

Howard M. Wasserman, Iqbal, Procedural Mismatches, and Civil Rights Litigation

Michael C. Dorf, Iqbal and Bad Apples

Stephen I. Vladeck, National Security and Bivens After Iqbal

Sheldon Nahmod, Constitutional Torts, Over-Deterrence and Supervisory Liability After Iqbal

SDS

Yoo's, Bybee's Torture Memos "Flawed," but no Misconduct

John Yoo's and Jay Bybee's memoranda as lawyers in the Justice Department's Office of Legal Counsel providing the legal basis for certain interrogation techniques--the torture memos--were "flawed," but reflected no professional misconduct, according to a memo released today from David Margolis, DOJ's top career attorney, to Attorney General Eric Holder.

Margolis's memo rejects the conclusions of the Office of Professional Responsibility, which opined in July 2009 that Yoo and Bybee engaged in professional misconduct by failing to provide "thorough, candid, and objective" analysis in the torture memos. 

Margolis sought and received comments from Yoo, Bybee, and others on the July 2009 OPR final report before issuing his own conclusions.  Yoo's comments are here; Bybee's are here.

There is much to write about here, and we'll provide analysis in several parts.  One issue that initially caught our attention is the role of the OLC as legal adviser to the President.  In response to criticism against Yoo and Bybee that their work simply rubber-stamped the Bush administration's policy preferences--and didn't provide any rigorous independent legal analysis--Margolis quotes at length from his interview with Jack Goldsmith.  Recall that Goldsmith succeeded Bybee as OLC chief and withdrew the Yoo memo.  Margolis relates his interview with Goldsmith on the role of the OLC:

Q (Margolis): One of the things I'm trying to figure out, we're trying to deal with is sort of, what is an OLC opinion and what is it supposed to be. . . . [W]hat is the role of the OLC and was there a line that was crossed here in that regard[?]

A (Goldsmith):  That's a very difficult question for me to answer. . . .  I can tell you this, that there is without getting into whether John crossed the line, there is debate about what the proper role of OLC is.  There's debate among former heads of the office and academics and people about what exactly, what interpretive stance OLC should take.  So, there are multiple questions.

To what extent should OLC be trying to give neutral, independent court-like advice, or should OLC be more like giving an attorney's advice to a client about what you can get away with and what you are allowed to do and what your risks are, something in between.  What are the sources of interpretation?  Is OLC bound by Supreme Court decisions?  Is OLC--can the Executive Branch take an independent role in interpreting the Constitution and the statutes?  You know, when and why and under what circumstances?

Does it matter whether the opinion is classified or not?  Does it matter whether there can be open debate on it?  Does it matter whether it's published?

These are all questions for which, you know, one day I'm going to write a book and they're difficult questions.  So, I'll just say that as a general matter, point one.

Q:  That's fair enough.

A:  But, as a general matter, I think, with all those caveats and I want those caveats on the record, in a general matter we're supposed to be--I think the answer is that it is clear that OLC is supposed to serve some independent role within the Executive Branch to try to provide independent advice.

Now, no head of the office had ever done that fully, and I can give you a lot of examples.  And there are many times in the history of not just OLC but Attorney Generals [sic] giving opinions to the President in the history of the country where Attorney Generals [sic] gave advice which was, you know, more of, here' an argument to cover what you've done, rather than my best independent view on the matter.

Goldsmith goes on to discuss Attorney General Bates's opinion validating President Lincoln's suspension of habeas corpus and Attorney General Jackson's opinion on the "destroyers for bases deal."

He concludes: "My only point is I don't know what the standard is.  And, again, I'm not trying to tell you how to do your job, but I don't know what the criteria are for whether it crossed the line."

This seems awfully weak for a former OLC chief that withdrew the Yoo memo.  (Did he not apply a standard himself in moving to withdraw the memo?)  As the OPR noted starting on page 15 of its July 2009 opinion, former OLC chief Stephen Bradbury issued a memoon Best Practices for OLC opinions that, among other things, said this:

In general, we strive in our opinions for clarity and conciseness in the analysis and a balanced presentation of arguments on each side of an issue. . . .  OLC's interest is simply to provide the correct answer on the law, taking into account all reasonable counterarguments, whether provided by an agency or not.

Bradbury served during the Bush administration, but his standards are bi-partisan.  A group of former Clinton administration OLC chiefs and advisors issued Principles to Guide the Office of Legal Counsel in 2004 that reflect Bradbury's sense of balance and objectivity.  Yoo's and Bybee's work pretty clearly violates this basic standard of balance and objectivity. 

The Bradbury memo and Principles are not professional responsibility standards--at least in the sense of the Model Rules or state rules of professional responsibility.  But they help clarify the role of the OLC--the point to this segment of Margolis's interview with Goldsmith.  Goldsmith's examples of Bates's and Jackson's opinions themselves seem rather to support balance and objectivity, not prove the opposite.  Yoo's and Bybee's work seems at least to violate the internal OLC standards designed to avoid the kind of overreaching that Bradbury's memos and the Principles caution against--and to this extent they also violate widely agreed upon ideas about presidential authority.

SDS

Obama Establishes Bi-Partisan Commission on Fiscal Responsibility and Reform

President Obama signed an executive order yesterday establishing a bi-partisan commission to address federal spending and the federal debt.  The move comes after the Senate rejected bi-partisan legislation to create a similar commission.

Under the EO, President Obama will appoint the chairs (one from each party) and six members (no four of which may be from one party).  The Speaker of the House, the Senate Majority Leader, the Minority Leader of the House, and the Minority Leader in the Senate will each appoint three members (who must be sitting members of their respective houses).

President Obama appointed Erskine Bowles, President Clinton's Chief of Staff, and former Senator Alan Simpson (R-WY), the former Republican Senate Leader, as co-chairs.

Minority Leaders Senator Mitch McConnell and Representative John Boehner said they'll cooperate and appoint members next week.

President Obama gave the Commission the following task:

[I]dentifying policies to improve the fiscal situation in the medium term and to achieve fiscal sustainability over the long run.  Specifically, the Commission shall propose recommendations designed to balance the budget, excluding interest payments on the debt, by 2015. . . .  In addition, the Commission shall propose recommendations that meaningfully improve the long-run fiscal outlook, including changes to address the growth of entitlement spending and the gap between the projected revenues and expenditures of the Federal Government.

The Commission obviously cannot have authority to bind Congress.  Instead, it operates as an attempt to help solve a collective action problem--that every single member of Congress has an incentive to push for disproportionate spending in his or her home district, and therefore together the institution is ill-equipped to deal with a fiscal crisis.  The Commission's recommendations can provide political pressure on Congress, even if they do not legally bind Congress.  A model is the Defense Base Closure and Realignment Commission, the BRAC, which helps to solve a similar collective action problem by studying and making recommendations about military base closures and moves.  Unlike President Obama's Commission, however, the BRAC was created by Congress through legislation.  This difference is unlikely to diminish the influence of the Commission, however: If both parties participate, its recommendations will or won't be politicized, whether it was established by statute or by EO.

SDS

Woods on Nullification, "State Resistance to Federal Tyranny"

Dr. Thomas Woods spoke today on "Nullification and State Resistance to Federal Tyranny" at the Conservative Political Action Conference, or CPAC, at the Marriott Wardman Park Hotel in Washington, D.C.  Woods is the author most recently of Meldown; he also wrote Who Killed the Constitution?: The Federal Government vs. American Liberty from World War I to Barack Obama.  (CPAC attracted a who's who of conservative political leaders and media personalities--everyone, it seems, from Dick Armey to George Will.)

Woods, a scholar at the Ludwig von Mises Institute, gave two talks in 2005 outlining his case for "states' rights": States' Rights in Theory and Practice, and The States' Rights Tradition Nobody Knows (with a broken link on the Mises web-site).  Woods starts with the Virginia and Kentucky Resolutions (declaring the federal Alien and Sedition Acts unconstitutional), Virginia's statement upon its ratification of the Constitution (reserving the right of the people to resume the powers granted to the federal government "whensoever the same shall be perverted to their injury or oppression"), and early secessionist movements, among other historical evidence, to argue that the Constitution protects states' rights and, at the outside, permits nullification.

With recent attentionon the "tenther movement"--those who argue that federal policies overreach and violate the Tenth Amendment--and state nullification efforts (but see Sandy Levinson's recent piece in the Statesman) we thought we might add Woods's voice to the fodder for your classes on federalism and the Tenth Amendment.

SDS

Citations to "Foreign" Law on Constitutional Matters

Should United States courts cite to non-US constitutional (or other) decisions?

To many judges in national courts, faced with cases for decision involving the meaning of their own constitutional charters of rights, it has often seemed appropriate and useful, over recent years, to reach for the exposition of analogous problems written by judges and decision-makers in the courts of other countries, in international or regional courts and other bodies, grappling with similar problems. Doing so has not generally been viewed as evidencing any illegitimate loyalty, or deference, to nonbinding texts. Still less has it been seen as exhibiting obedience to the legal norms of other countries or the international community, or to the opinions of judges and others outside the legitimacy of the municipal court hierarchy. Instead, reference to such elaborations has occurred because such expositions have been found helpful and informative and therefore useful in the development of the municipal decision-maker’s own opinions concerning apparently similar problems presented by the municipal constitution or other laws.

None of the foregoing statements would be regarded as strongly contestable or even controversial in any common-law country, or indeed in most civil-law countries, save for the United States of America and Australia.

In the Donahue Lecture at Suffolk University Law School, Justice Michael Kirby, recently retired from Australia's High Court (under its mandatory retirement policy), compellingly compares the Australian and US experiences with foreign and international law. 

Kirby (depicted in an Australian government portrait above) argues that domestic (or as he often says, "municipal") jurists realize that "decisions of foreign courts, tribunals and other bodies and the content of international and regional law, outside one’s own legal system, are not studied because they provide a binding rule that governs a municipal case and determines its outcome."  Instead, he notes that these decisions offer "a contextual setting that helps the municipal decision-maker to see his or her problem in a wider context."  Kirby also discusses the "democratic deficit," again stressing that the "foreign" decisions are not binding, but also acknowledging that "the protection of vulnerable and sometimes unpopular minorities" is at the heart of his argument:

For the rights of such people, democracy imports special protection by the independent courts. Such courts remind transient majorities that a democracy includes all of the people. Minorities have fundamental rights that the majority may not neglect or override. International human rights law is useful in expressing and clarifying what such rights entail. That is what sometimes makes it useful for municipal judges to have regard to the growing body of international law and jurisprudence.

After Kirby's speech, there was a panel discussion with Professor Michael Blumenson and Con Law Prof and former Justice of the Massachusetts Supreme Judicial Court John M. Greaney.  The printed versions of the Lecture and Panel Discussion are both available on the law review's website here, as is a public conversation on judicial review and "queer rights," also available on ssrn here.

Interestingly, Kirby "debated" Justice Scalia in Sydney last week on similar issues of "foreign" law - - - with any luck a fuller report (or transcript) of that discussion will be forthcoming.

RR 

Poll Reveals Strong Bi-Partisan Opposition to Citizens United

An ABC-Washington Post news poll (questions 35 and 36) released today revealed strong bi-partisan opposition to the Court's recent ruling in Citizens United v. FEC (striking down under the First Amendment federal regulations prohibiting corporations and labor unions from using general funds for "electioneering communication").

In response to the question, "Do you support or oppose the ruling that says corporations and unions can spend as much money as they want to help political candidates win elections?" 80% opposed; 18 percent supported.  On the question, "Would you support or oppose an effort by Congress to reinstate limits on corporate and union spending on election campaigns?" 72% supported; 24% opposed.

The numbers are remarkably consistent across party and ideological lines.

Senator Charles Schumer and Congressman Chris Van Hollen introduced legislation to reinstate the former restrictions on certain corporations and to increase transparency in spending for others.  (The link is a summary.  We'll post the bill when it's available on thomas and gpoaccess.)  Their bill targets foreign corporations, government contractors, and recipients of TARP funds and attempts to increase transparency by, e.g., requiring corporate CEOs to identify that they're behind political ads and enhancing FEC reporting requirements.

Schumer and Van Hollen's bill isn't the only fix out there.  Congressman Grayson introduced the "Business Should Mind Its Own Business Act," imposing a 500 percent excise tax on corporate contributions to political committees and on corporate expenditures on electioneering communication.

SDS

OSCAR Nominations: ConLaw Perspectives

Have a constitutional law perspective on the best-picture nominee and blockbuster Avatar? 
Consider this CFP from The Journal for the Study of Religion, Nature and Culture.  (H/T Feminist Philosophers).

And among the Academy Award nominees for documentary film is The Most Dangerous Man in America: Daniel Ellsberg and the Pentagon Papers, suitable for viewing (or reviewing) while teaching New York Times v. United States.  If a class trip to the local cinema is not possible, consider one of the compressed and evocative snippets available:

RR

Web-Sites Track White House Activity, Appointments

The Washington Post has two useful tools to track White House activity and the status of presidential nominations.  POTUS Tracker analyzes how the President spends his time--by issue, by events, by speeches--and provides the President's daily schedule.  Head Count tracks the status of presidential appointments.

We were interested in what Head Count might tell us about the status of one important nomination, Dawn Johnsen to lead the Justice Department's Office of Legal Counsel.  Head Count correctly lists her as "nominated," but doesn't give any more information.  In fact, the Senate Judiciary Committee last week held over her nomination (which expired, but which the White House said it will resubmit)--a year to the day after her nomination.  The day after the Judiciary Committee's non-action, Senator Specter indicated that he'll support Johnsen--perhaps providing the tipping point for this nomination.

In the meantime, the OLC has been slow to make its opinions public.  They trickled out on the OLC web-site last fall (with several older ones released around the same time in November and December), and, a month and a half into the new year, the Office has yet to even list 2010 as an option for searching its opinions by year.  We can't imagine they're doing nothing, what with all the constitutional issues raised in the administration's initiatives (take health care, e.g.); and the slow pace of release seems at odds with the administration's stated commitment to transparency.

Not that these two have anything necessarily to do with each other (maybe, maybe not), but the Senate should act on Johnsen's nomination now--a year is far too long to let such an important nomination sit--and the OLC should again publicize its work, with or without a Senate-confirmed leader.

SDS

Court Orders Briefing on Kiyemba, Uighurs' Case

The Supreme Court on Friday ordered new briefing in Kiyemba v. Obama, the case testing the government's ability to detail the remaining Chinese Muslims, or Uighurs, at Guantanamo Bay even after everyone agreed--and a federal district court ruled on habeas--that there is no basis for detaining them.  The move comes after the government earlier this month found a new home (outside the U.S.) for the remaining Uighurs, thus mooting the case.  We most recently posted on the case here; Linda Greenhouse provides background and commentary for the NYT here.

Recall that Judge Urbina on the U.S. District Court for the District of Columbia ruled in the Uighurs' favor and ordered their release into the United States (because at that time the government found no other country to take them).  The circuit court reversed, however, ruling that release into the U.S. was an immigration matter and therefore an issue for the political branches (and not the courts) under the Constitution.  Under the circuit court ruling, if the Uighurs were to be freed in the U.S., Congress and the president would have to authorize it.  (This the government refused to do for any number of political reasons.  The government's official position at one point in the litigation was that the Uighurs posed a threat because they were angry that the government wrongly held them so long.)  The ruling effectively negated any habeas remedy the Uighurs had, as long as the government had no place to send them.  This was illustrated by the government's position in the wake of the ruling: The Uighurs were free to leave Guantanamo; they just didn't have any place to go.

If the Supreme Court now rules the case moot (and thus declines to review the circuit court case), it would leave intact the circuit court ruling, eviscerating any remedy on habeas (and thus eviscerating habeas itself) for any class of detainees that the government cannot relocate (and refuses to relocate within the U.S.).  This may be a narrow class of detainees, or it may be broad; this all depends on how toxic any particular detainee becomes merely as a result of their detention.  (Recall that the government at one point considered the Uighurs a threat merely because it detained them (!).  The government couldn't return them to their home country, China, because of a continuing threat of persecution because of their beliefs.) 

SDS