Monday, March 26, 2012
The Supreme Court ruled on Monday in Zivotofsky v. Clinton that the political question doctrine does not bar judicial review of the constitutionality of a federal statute that requires the Secretary of State to designate "Israel" as the country of birth for a U.S. citizen born in Jerusalem who requests such designation. We previewed the case here, and we reviewed the oral argument here.
The ruling dodges the significant underlying separation-of-powers question over which branch has authority to designate the country of birth on a U.S. passport--at least for now. The Court remanded the case for consideration of this issue; it is sure to return.
The case pits State Department regs forbidding the designation of Israel as the country of birth for a U.S. citizen born in Jerusalem against a federal statute that requires such designation--in short, whether the President or Congress has authority to specify the country of birth on a U.S. passport for a U.S. citizen born in Jerusalem. Here, this power also implicates U.S. foreign policy, because the designation would be seen as taking sides in the Israeli-Palistinian conflict. Complicating things, President George W. Bush issued a signing statement on the legislation, Section 214(d) of the Foreign Relations Authorization Act, saying that it unconstitutionally interferes with the President's foreign affairs powers. (The constitutionality of the signing statement, however, wasn't before the Court.)
The D.C. Circuit ruled that the case raised a nonjusticiable political question--the President's authority to recognize foreign sovereigns--and affirmed its dismissal.
The Supreme Court reversed. Chief Justice Roberts wrote for the Court that the case merely involved the constitutionality of a federal statute--"a familiar judicial exercise"--and did not require the courts to intervene in or to set foreign policy. This didn't make the case easy, but it did make it appropriate for judicial review. The Court remanded the case to get the lower courts' best thinking on the merits before the case inevitably comes back to it.
Justice Sotomayor wrote a concurrence joined in part by Justice Breyer, and Justice Alito wrote a concurrence. Justice Breyer was the lone dissenter, arguing that the case was a political question because it may well require the Court to evaluate foreign policy considerations, because there are no strong reasons for judicial review, and because the political branches can work it out on their own.
The ruling sends the case back to the lower courts for consideration on the merits. But this important separation-of-powers case is almost certain to come back to the high Court.
March 26, 2012 in Cases and Case Materials, Congressional Authority, Courts and Judging, Executive Authority, Foreign Affairs, News, Opinion Analysis, Political Question Doctrine, Separation of Powers | Permalink | Comments (0) | TrackBack (0)
Sunday, November 6, 2011
The Supreme Court will hear arguments on Monday in MBZ (Zivotofsky) v. Clinton, a case that on its face tests whether Congress or the President has authority to name the place of birth on a U.S. passport--but it's likely about much more.
The case arose when two U.S. citizens living in Israel sought a passport for their child, born in Jerusalem, with a place of birth as "Jerusalem, Israel." Embassy officials agreed to designate the place of birth "Jerusalem," but refused to designate "Israel." The officials' refusal was based on long-standing U.S. policy not to recognize Jerusalem as part of Israel and U.S. State Department regulations that prohibit the designation of "Israel" as the country of birth for any U.S. citizen born in Jerusalem.
The parents sued. They pointed to the Foreign Relations Authorization Act, Fiscal Year 2003, that requires the Secretary of State to designate "Israel" as the country of birth for any U.S. citizens born in Jerusalem who so requests. But President Bush issued a signing statement on the Act that claimed that this provision was unconstitutional and said that the executive branch would decline to enforce it.
The case thus pits the President against Congress on the question of which branch has authority over the birthplace on the passport.
The lower courts dismissed the case, holding that it raised a nonjusticiable political question. The Zivotofskys appeal that ruling. But the Supreme Court also directed the parties to argue the merits: whether the Act unconstitutionally infringes upon the President's authority in foreign affairs.
The Zivotofskys argue that the case involves a run-of-the-mine issue relating to passports--the mere designation of a place of birth, which serves identification objectives, not foreign policy objectives. Thus in their view the case does not involve a political question, and requiring the designation of "Israel" as a country of birth for a U.S. citizen born in Jerusalem is within congressional authority.
Secretary of State Clinton argues that the President's Article II power to receive Ambassadors includes the power to recognize (or not) foreign sovereigns and the power to designate them (or not) on U.S. passports. She also argues that this is a political question because of the sensitive foreign policy issues behind the State Department regulation--the kind of issues that are delegated to the President alone under the Constitution.
The fact that the Court directed the parties to brief the merits suggests that it'll say at least something about the merits. If it does, it seems likely that it'll say something very narrow--dealing only with the extent of the President's authority to receive Ambassadors as against any congressional authority over passports. But even that narrow ruling could say something broader about the respective roles of the political branches over foreign policy--a much broader question. This seems to be a narrow, even small, case on the surface, but there are potentially very big issues beneath.
As to presidential signing statements: it seems unlikely that the Court will say anything at all about them: this issue is not squarely before the Court; the parties did not brief it thoroughly; and the Court doesn't have to deal with it to decide the case.
November 6, 2011 in Cases and Case Materials, Congressional Authority, Executive Authority, Foreign Affairs, Jurisdiction of Federal Courts, News, Political Question Doctrine, Separation of Powers | Permalink | Comments (0) | TrackBack (0)
Saturday, October 22, 2011
United States District Judge Susan Bolton, who entered a preliminary injunction against portions of Arizona's controversial SB1070 in July 2010, dismissed the counterclaims filed by Arizona and Governor Jan Brewer in a 22 page Order late Friday.
Arizona's Count One, failure and refusal to achieve and maintain “operational control” of the Arizona-Mexico borde, Count Three, abdication of statutory responsibilities (enforcement of the federal immigration laws), and Count Four, declaratory relief regarding State Criminal Alien Assistance Program (“SCAAP”) reimbursement obligations were each denominated as "statutory claims."
The constitutional counterclaims - - - Count One, the failure and refusal to protect Arizona from invasion and domestic violence under Article IV, Section 4 and Count Five, declaratory relief under the Tenth Amendment - - - were analyzed as subject to issue preclusion given Bolton's previous order, but the Judge also further considered the claims. As to the "invasion and domestic violence" counterclaim, Judge Bolton found that the claim was nonjusticiable because it was a political question and cited the "six factors" from Baker v. Carr (1962):
 a textually demonstrable constitutional commitment of the issue to a coordinate political department;
 a lack of judicially discoverable and manageable standards for resolving it;
 the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion;
 the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government;
 an unusual need for unquestioning adherence to a political decision already made;
 the potentiality of embarrassment from multifarious pronouncements by various departments on one question.
Bolton emphasized the lack of "judicially discoverable and manageable standards" for determining what constituted an invasion and domestic violence.
Regarding the Tenth Amendment counterclaim, Judge Bolton found that Arizona was not being "comandeered" :
Arizona does not point to any federal immigration policy that mandates or compels
Arizona to take any action. The complained of expenditures arise entirely from Arizona’s
own policy choices and independent constitutional obligations and are not incurred as a result
of any federal mandate. These state costs do not give rise to a claim under the Tenth
While the ruling was not unexpected, it further focuses attention on the petition for writ of certiorari filed by Arizona and Jan Brewer, seeking review of the Ninth Circuit opinion which upheld Judge Bolton's preliminary injunction against SB1070.
Monday, May 2, 2011
The Supreme Court today agreed to hear a case involving the justiciability of a dispute over the administration's non-recognition of Jerusalem as the capital city of Israel. But the Court also instructed the parties to brief the scope of Presidential power to recognize foreign sovereigns. (See page 3 of the May 2 Order List.) The case thus gives the Court a rare opportunity to explore the contours of separation-of-powers in foreign affairs and the President's foreign affairs power.
The case arose out of a dispute over a the recorded birthplace of a U.S. citizen born in Jerusalem. Petitioner's mother asked the State Department to record the birthplace as "Jerusalem, Israel" on the petitioner's Consular Report of Birth Abroad and U.S. passport. But the State Department regs and policy required it to record merely "Jerusalem" as the birthplace.
The State Department's long-running policy not recognizing Jerusalem as Israel's capital (or even as a city within Israel's sovereign territory) is designed to preserve U.S. neutrality on state sovereignty over Jerusalem, leaving that issue to be decided by negotiation between the parties to the Arab-Israeli dispute. According to the State Department's assessment, "[a]ny unilateral action by the United States that would signal, symbolically or concretely, that it recognizes that Jerusalem is a city that is located within the sovereign territory of Israel would critically compromise" the peace process.
In 2002, however, Congress enacted, and the President signed, legislation that specifically required the State Department to list "Israel" as the birthplace of any citizen born in Jerusalem, upon the parents' request. President Bush issued a signing statement construing the provision, Section 214 of the Foreign Relations Authorization Act, Fiscal Year 2003, as advisory, not mandatory, because it "impermissibly interfere[s] with the President's constitutional authority to formulate the position of the United States, speak for the Nation in international affairs, and determine teh terms on which the recognition is given to foreign states."
The petitioner sued, but both the district court and D.C. Circuit dismissed the case as a nonjusticiable political question.
The Supreme Court today agreed to hear the case, with this further instruction:
In addition to the question presented by the petition [whether the case presents a nonjusticiable political question], the parties are directed to brief and argue the following question: "Whether Section 214 of the Foreign Relations Authorization Act, Fiscal Year 2003, impermissibly infringes the President's power to recognize foreign sovereigns."
The case thus puts front-and-center the question of Presidential authority over foreign affairs when executive policy and action violate plain law. The case is unusual in that executive action and the law directly and obviously conflict, pitting one source of authority (the President's Article II powers) immediately against another (Section 214) and thus bringing Presidential foreign affairs power into particularly sharp focus.
We might also look for anything the Court has to say about Presidential signing statements that decline to enforce a law based on its intrusion into core areas of executive responsibility.
The administration argued against review. In its view, the lower courts properly dismissed the case as a nonjusticiable political question, because under the recognition or nonrecognition of foreign sovereigns is textually committed to the executive branch (under Article II, Section 3, the power to "receive Ambassadors and other Public Ministers."). Baker v. Carr.
May 2, 2011 in Congressional Authority, Executive Authority, Foreign Affairs, International, Jurisdiction of Federal Courts, News, Political Question Doctrine, Separation of Powers | Permalink | Comments (0) | TrackBack (0)
Tuesday, December 7, 2010
Judge John D. Bates (D.D.C.) today dismissed Nasser Al-Aulaqi's case on behalf of his son, Anwar Al-Aulaqi, to stop the administration from killing his son. Anwar is a U.S. citizen tagged by the Obama administration as a terrorist and targeted for extrajudicial killing. We most recently posted on the case here.
The 83-page opinion in Al-Aulaqi v. Obama concludes that Nasser lacks standing, failed to allege a violation of the Alien Tort Statute, and that the case raises non-justiciable political questions. (Judge Bates declined to rule on the administration's state secrets claim.) The ruling does not address the merits--except to say that that the case is "unique and extraordinary."
Judge Bates ruled that Nasser lacks standing as next-friend or under third-party-standing rules. According to Judge Bates, Nasser failed to explain why Anwar could not appear in court himself and failed to show that he would be truly dedicated to Anwar's best interests. (Judge Bates wrote that "no U.S. citizen may simultaneously avail himself of the U.S. judicial system and evade U.S. law enforcement authorities"--even, apparently, if he is subject to killing or indefinite detention as a terrorist if he shows up. Judge Bates also ruled that Nasser did not show that Anwar even wanted to bring this case--and therefore Nasser did not show that he was representing Anwar's best interests.) Moreover, Nasser did not allege a sufficient harm--loss of his relationship with his son--to support third-party standing.
Next Judge Bates ruled that Nasser failed to satisfy the requirements of the Alien Tort Statute--both that he suffered a legally cognizable tort that rises to the level of a customary international law norm, and that the U.S. waived sovereign immunity. As to the former, Judge Bates ruled that a threatened extrajudicial killing is not a violation of customary international law (even if an actual extrajudicial killing is). Moreover, this case has a complicating factor: an alien (Nasser) brings the case on behalf of a citizen (Anwar). The ATS doesn't allow for this. As to the latter, the U.S. has not waived immunity.
Finally, Judge Bates ruled that the case is barred by the political question doctrine. Resolution of the case would require the court to delve into complicated issues of foreign affairs and national security, and therefore the court must abstain.
The opinion recognizes the importance and the complicated and troubling nature of the case--on both sides. (It starts with a series of questions like this: "How is it that judicial approval is required when the United States decides to target a U.S. citizen overseas for electronic surveillance, but that, according to defendants, judicial scrutiny is prohibited when the United States decides to target a U.S. citizen for death?" And this: "Can a U.S. citizen--himself of through another--use the U.S. judicial system to vindicate his constitutional rights while simultaneously evading U.S. law enforcement authorities, calling for 'jihad against the West,' and engaging in operational planning for an organization that has already carried out numerous terrorist attacks against the United States?" Good questions, indeed.) But it doesn't address these, at least not directly. Instead, it dismisses the case largely on non-merits issues. In so doing, the court leaves the substantive questions for the political branches--here, the executive alone. In short, under this opinion there doesn't appear to be a way that a U.S. citizen could safely challenge an ordered extrajudicial killing through the U.S. courts: Upon revealing her- or himself, she or he would almost certainly be killed or detained (indefinitely). (If the latter, she or he could challenge the detention by way of habeas, but could apparently not challenge the ordered killing.) This apparently leaves unchecked power in the hands of the executive to order killings of anyone, including U.S. citizens, it deems a terrorist.
Recognizing the "drastic nature" of the government's power, Judge Bates tried to limit the ruling in two ways--limiting the political question analysis to the facts, and declining to rule on the state secrets privilege. But in the end, the holdings on standing, the ATS, and even the political question doctrine mean that targets of extrajudicial killings have no real way to challenge the government in the courts.
December 7, 2010 in Courts and Judging, Executive Authority, Foreign Affairs, International, Jurisdiction of Federal Courts, Opinion Analysis, Political Question Doctrine, Recent Cases, Separation of Powers, Standing, State Secrets, War Powers | Permalink | Comments (0) | TrackBack (0)
Sunday, September 26, 2010
The government on Friday filed its legal arguments in support of its motion to dismiss Nasser Al-Aulaqi's case against it for allegedly designating his son Anwar Al-Aulaqi, a U.S. citizen living in Yemen and allegedly supporting al Qaeda in the Arabian Peninsula, for targeted killing. Thanks to Rachel Mabbott for the heads-up.
The government proffers three principal arguments, each of which reveals a little more about the legal authority it claims for targeted killings in the first place. Thus, the government argues that Nasser Al-Aulaqi, as Anwar's next-of-friend, lacks standing. The government argues that Nasser failed to show the imminence of harm necessary to support standing (because, after all, the whole program is secret--see below) and that Anwar could access the courts by turning himself over to U.S. authorities.
Next, the government argues that the case is barred by the political question doctrine. The government argues that judicial action in the case would intrude upon the foreign affairs and national security powers of the President in violation of separation-of-powers principles. In short, the courts are not well suited to evaluate this kind of claim. Moreover, the government argues that it has clear authority to engage in targeted killing (without admitting that it has targeted Al-Aulaqi) under the AUMF and international law.
Finally, the government argues that its assertion of the state secrets privilege requires complete dismissal. Emboldened by the recent Ninth Circuit decision in Mohamed v. Jeppesen, the government argues that the case should be dismissed on the pleadings based on its assertion of the privilege and the court's ex parte and in camera review of it own affidavits supporting the assertion. The government goes one step farther than the Ninth Circuit's ruling in Mohamed, however, and argues that the privilege is rooted in constitutional principles (citing the Fourth Circuit's decision in El-Masri)--a dangerous argument not supported by Mohamed (or any other authority except El-Masri, for that matter) and taking the courts out of the equation entirely (as I argue in detail here). While the government is careful to argue the privilege as a last resort--and with all the procedural protections built in by the Holder Justice Department--its claim here is still breathtaking and means that the government could order the targeted killing of a U.S. citizen on its own say-so, with no judicial oversight. The government gives a glimpse of the kind of information it seeks to protect here:
Resolution of the plaintiff's claim therefore would require the Court to answer a range of questions, even apart from the question of whether the plaintiff's son has been targeted: What kind of threat, if any, does plaintiff's son pose? If there is a threat, how imminent is it, and how continuing is it? How many innocent people are threatened by the danger plaintiff's son might pose? In the totality of the circumstances does the United States have the capability and access to capture plaintiff's son safely? In trying to capture him, how many innocent people or military personnel would likely be killed or injured in the process? It is self-evident that all the above questions (and more) directly implicate information protected by the military and state secrets privilege, at a minimum because those facts would require the examination of any available and pertinent classified intelligence that might exist on the subject, as well as the sources or methods for gathering that intelligence, and any related information concerning foreign relations and diplomatic communications.
. . .
Finally, plaintiff also raises a claim under the Fifth Amendment that expressly seeks disclosure of alleged secret criteria governing the targeting of U.S. citizens engaged in terrorist activities with lethal force. Such a disclosure would reveal not only whether such targeting has occurred or been considered in any given case but would disclose to the plaintiff and any potential target the criteria utilized by the Government to make this determination. It strains credulity to argue that the Due Process Clause requires the Government to disclose to Answer al-Aulaqi, an operational leader of the [al Qaeda in the Arabian Peninsula], whatever criteria it may be applying to respond to his activities.
Thus the government follows the Ninth Circuit's lead in invoking the privilege quite carefully, with protections (or saying that it's invoking the privilege carefully with protections), but in the end its sweep is every bit as broad as the more cavalier invocations by the prior administration and the Fourth Circuit in El-Masri.
September 26, 2010 in Executive Authority, Fundamental Rights, International, Jurisdiction of Federal Courts, News, Political Question Doctrine, Procedural Due Process, Recent Cases, Separation of Powers, State Secrets, War Powers | Permalink | Comments (0) | TrackBack (0)
Wednesday, June 16, 2010
The full D.C. Circuit ruled last week in a divided opinion (5-4) that the political question doctrine prevented the courts from hearing the plaintiffs' case against the government for President Clinton's bombing of their factory for alleged ties to al Qaeda.
The case, El-Shifa Pharmaceutical Industries Co. v. U.S., arose out of President Clinton's Tomahawk missile strikes on a drug manufacturing plant believed to be associated with al Qaeda. President Clinton ordered the strikes in response to al Qaeda's bombing of U.S. embassies in Kenya and Tanzania in August 1998.
The plaintiffs brought a defamation claim and a claim under international law against the U.S. government, but the D.C. Circuit upheld the lower court's dismissal based on the political question doctrine. The political question doctrine prevents the courts from hearing certain cases that are "constitutionally committed for resolution to the halls of Congress or the confines of the Executive Branch." Op. at 7 (citing Japan Whaling Ass'n v. Am. Cetacean Society. The seminal Supreme Court case on the political question doctrine, Baker v. Carr, explained that a political question involved the following:
a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.
The majority wrote that the circuit followed a distinction between determining whether certain policy decisions were "wise" and determining whether certain policy decisions presented a legal issue. The former is a political question; the latter is not.
According to the majority, the issues here involved determining whether policy decisions were "wise." As to the international law claim--which would require the government to compensate the plaintiffs for property destruction that was "mistaken and not justified"--the court wrote that "[w]hether an attack on a foreign target is justified--that is whether it is warranted or well-grounded--is a quintessential 'policy choice and value determination constitutionally committed for resolution to the halls of Congress or the confines of the Executive Branch." Op. at 15. As to the defamation claim, the court wrote that "[i]t too would require the court to reconsider the merits of the decision to strike the El-Shifa plant by determining whether the government's justifications for the attack were false." Op. at 18.
The majority distinguished federal habeas review of detainees under Boumediene by writing that the Suspension Clause contemplates federal court review. The cases involving seizure of "enemy property" are similarly inapplicable, because none of those cases "required the courts to scrutinize a decision constitutionally committed wholly to the political branches." Op. at 24. (The dissent points out that President Clinton justified the attacks based only on his Article II Commander-in-Chief power--the constitutional commitment here.)
The dissent wrote that the majority inappropriately expanded the political question doctrine and with it executive authority (becuase the majority declined to review this executive decision because it was an executive decision). Like the majority, the dissent would have dismissed the case, but based upon the plaintiffs' failure to allege a cognizable cause of action, not the political question doctrine.
The majority's distinction between review of the wisdom of policy decisions and review of the legality of policy decisions is problemmatic, because it fails to articulate a limit on the political question doctrine, especially as the majority applied that distinction in this case. (The plaintiffs' claims are as much, or more, about the legality of the policy as the wisdom of the policy. In truth, the two overlap, collapsing the dichotomy that the majority relies upon.) Given the ruling here, it's hard to see what wouldn't be a decision on the wisdom of a policy, as opposed to the legality of a policy.
Detention of unlawful combatants is a good example. As the majority writes, the Suspension Clause contemplates a role for judicial review. But this is only because the Court has ruled on the Suspension Clause--because the Court has opened this door. This is the very issue in this case--whether the courts can review the plaintiffs' defamation and international law claims--and not a basis for distinguishing this case. Moreover, as we've seen in the lower courts' initial struggles in the wake of Boumediene, habeas for alleged unlawful combatants presents many of the same problems that the Court uses to justify and explain the political question doctrine in Baker v. Carr. Yet these cases are not political questions.
By the majority's reckoning, it seems they should be. And moreover, it seems that any issue related to foreign policy should be a political question--not only Boumediene, but also Hamdi, Hamdan, and the whole lot of cases arising out of the government's pursuit of terrorists. Even if the D.C. Circuit's distinction is coherent--which it isn't--the ruling has the surprising result that the courts could review executive detention but not executive bombings.
If the case goes up, the Supreme Court could have to wrestle with this tough, common-sensical question: Why can the courts review executive detention, but not the (potentially much more destructive) executive bombing?
Wednesday, April 29, 2009
The Second Circuit has issued its opinion in 09-0331-cv, Molinari v. Bloomberg, affirming the district court's rejection of challenges to Mayor Michael Bloomberg seeking a third term, despite previously approved term limits. As the Second Circuit noted,
The challenge raised several claims: a First Amendment claim that by amending the 1993 Voter Initiative through City Council legislation, the defendants discourage voters from participating in the referendum process in the future; a substantive due process claim that by passing legislation with the sole purpose of extending their own political careers and entrenching incumbents, the defendants violated the Fourteenth Amendment, as well as two state and local claims, based on laws mandating referendum as the mechanism to enact legislation regarding term limits, and the City Charter’s conflict of interest provisions.
The court’s analysis of the substantive due process claim merits some discussion. The Second Circuit panel writes:
Opinion at 34. It isn't clear how the panel is using "suspect classification" in its due process analysis. However, applying rationality review, the panel states:
The due process analysis and the opinion as a whole demonstrate how difficult it can be to prevail on constitutional (or other) claims against legislative action that is objected to as "self-serving." While the Second Circuit opinion does not discuss "political questions" as a prudential (or Article III) restraint, such values are deeply embedded in the opinion.
April 29, 2009 in Cases and Case Materials, Current Affairs, Due Process (Substantive), Elections and Voting, Fourteenth Amendment, Fundamental Rights, Political Question Doctrine | Permalink | Comments (0) | TrackBack (0)
Friday, March 27, 2009
The D.C. Circuit in a split decision today affirmed the lower court's dismissal of a Sudanese pharmaceutical manufacturer's Federal Tort Claims Act case against the United States for negligence in bombing its facility in 1998 and for defamation in subsequently claiming that the owner was associatedwith terrorists. The court ruled that the claims raised nonjusticiable political questions.
The plaintiffs, El-Shifa Pharmaceutical Industries and its owner Idris, claimed that the U.S. bombed their facility in 1998, arguing that the El Shifa plant was a "terrorists' base of operation" and "associated with the bin Laden network." Clinton administration officials, once they learned that theseinitial justifications were wrong, then portrayed Idris as a friend and supporter of terrorists--a new justification for the bombing.
The defamation claim, growing out of these subsequent statements by Clinton administration officials, raises the more interesting political question issue. Two judges--Griffith and Henderson--wrote that "[t]he making of such justifications is itself a policy decision that cannot be separated from the conduct of foreign relations and the exercise of the war power that it explains," thus raising political questions.
But Judge Ginsburg in dissent wrote that subsequent justifications had nothing to do with the underlying decision to bomb the facility:
In any event, the Court errs in believing Idres's claim necessarily raises a political question simply because it implicates a strategic decision. Apparently the Court believes the Constitution grants the Executive the unreviewable discretion to make defamatory statements even if they have nothing to do with the actual justification for a military decision because (or so the Court assumes) every public explanation of a military decision is "offered, in part at least, with strategic . . . objectives in mind." That proposition is not only novel and frightening, it ignores Supreme Court precedent.
Friday, January 2, 2009
Levinson's is the clearest and plainest reading of the text, especially the Seventeenth Amendment:
That is, I do believe that the text of the 17th Amendment, read in its most ordinary sense, allows a state to empower its governor to make a temporary appointment (even if I do concede that the Senate could refuse to seat the appointee if one thought that the governor had made the appointment as part of criminally corrupt bargain). Governor B. is the fully legal governor of Illinois unless and until he resigns or is impeached. To say that the untoward conduct of which he has been accused deprives him of the power that the Constitution authorizes Illinois to give him leads to all sorts of conundrums . . . .
Or as a commenter wrote on PrawfsBlawg:
The Seventeenth Amendment authorizes states to let governors fill vacant Senate seats by appointment. Illinois has authorized its Governor to do so. Blagojevichis is the Governor of Illinois. Blagojevich has appointed Burris.
(This commenter went on to write that "[t]here is no plausible legal basis for the Senate to refuse to seat Burris, and any Senator who votes to refuse to seat Burris is voting to violate the Constitution." I think this goes too far; there certainly are plausible (even if "too clever by half," as Levinson argues) arguments--links in my previous post--that the Senate may do this.)
The Seventeenth Amendment analysis (also distinguishing Powell v. McCormack) is the cleanest, and it leaves little, if any, room for the Senate to block Burris.
But as Lyle Denniston points out, any Senate action blocking Burris may be a nonjusticiable political question, anyway, and it therefore may never reach the courts (or Court).
"Political Question," of course, means that the political branches are better suited to deal with the problem than the judiciary. And here's a possible political solution (reported by Denniston): The Senate could investigate Blagojevich's appointment of Burris (and hold him in limbo) until something happens to Blagojevich. Then Blagojevich's successor (or, I suppose, a vindicated Blagojevich) could appoint a replacement without the cloud over Burris.