Is Hillary Clinton Unconstitutional?

So Hillary Clinton is “on track” to be the nation’s top diplomat, huh? Well, setting aside the wisdom of that decision — forget ideology; does she have both foreign policy expertise and a good working relationship with the President-elect? — it appears that there may be genuine constitutional problems with her expected nomination. To wit, Article I, section 6, clause 2 reads:

No Senator or Representative shall, during the Time for which he was elected, be
appointed to any civil Office under the Authority of the United States, which
shall have been created, or the Emoluments whereof shall have been encreased
[sic] during such time…

That is, under this “Emoluments Clause,” members of Congress are expressly forbidden to take any appointed position within the government which was created or whose pay has been increased during their current term in office. Now, a January 2008 executive order, promulgated in accordance with a statute from the 1990s that addressed cost of living adjustments for certain federal officials, raised the Secretary of State’s salary, thus constitutionally prohibiting any then-serving senator who remains in office from taking charge of Foggy Bottom. (Sen. Clinton’s current term began in January 2007 and expires in January 2013.)

Not surprisingly, this is not the first time such a conflict has arisen in executive appointments and nominations and, equally not surprisingly, Congress has on several occasions legislated around it: To enable one of its own to assume executive office, Congress simply decreases the pay of that office to the pre-raise level for the full tenure of that specific appointee.

Although this legerdemain has been around since at least the Taft Administration — and was most recently used when President Clinton picked Sen. Lloyd Bentsen to be his Treasury Secretary – the move is called the “Saxbe Fix” after Sen. William Saxbe, whom President Nixon nominated for Attorney General.

The Saxbe Fix is not uncontroversial. UCLA law professor Eugene Volokh, for example, cites Steptoe and Johnson partner John O’Connor’s objection that the Saxbe Fix is inadequate for circumventing the Emoluments Clause. To O’Connor’s thinking, while simply lowering the salary — resulting in no “net” increase — does prevent the nominee from directly benefiting from a vote he or she cast, it would not substantively address the Framers’ intent to limit the size and scope of the federal government. That is, if, contrary to the Emoluments Clause’s terms, Congress can restore its Members’ eligibility for appointment by reducing the office’s salary, the Emoluments Clause ceases to serve its function as providing a constitutional disincentive for regular increases in the salaries of federal offices.

One could also argue that in this specific case, Congress did not act to increase anybody’s salary; it was that long-ago Congress that even gave that option to the president — and only in the form of an aross-the-board COLA, not some shady or opportunistic self-dealing. But, of course, if we are to follow the text of the Constitution, there is no exception for offices “the Emoluments whereof shall have been encreased” by a non-shady COLA granted via statutorily-enabled executive order.

Whether anyone could challenge Hillary Clinton’s appointment in the courts is another matter. Perhaps someone denied a passport, or who has had some other adverse action done to them by a Clinton-led State Department, would have standing to sue. In any event, in this time of constitutionally questionable bailouts, it cannot hurt to be vigilant even about the most obscure text from our nation’s governing document.

Much more on this issue can be found in Eugene’s fascinating post here.

[Cross-posted at Cato's blog.]

Peek-a-boo, I See a Challenge to Sarbanes-Oxley in the Supreme Court

An intriguing case that alleges a high-profile violation of the president’s exclusive power to appoint and remove government officials is winding its way through the courts. Free Enterprise Fund v. Public Company Accounting Oversight Board challenges the constitutionality of a key part of the Sarbanes-Oxley Act.

Congress passed Sarbox, as the law is called, in the wake of the Enron and WorldCom scandals to protect investors from shoddy accounting practices perceived as being rife in publicly traded companies. (We now know that Sarbox’s regulatory burden costs the economy much more than the fraud it prevents and detects, but never mind.) Among other things, the law created the Public Company Accounting Oversight Board — PCAOB, pronounced “peek-a-boo” — a private board exercising government power. Its members are not appointed by the SEC, which has limited removal power. In short, the president has neither any appointment nor removal power, in seeming violation of Article II, section 2 of the Constitution.

[Cross-posted from Cato's blog.]

On Monday, the D.C. Circuit, now consisting of nine members after Judge Raymond Randolph took senior status as of November 1, split 5-4 in denying en banc review of a panel decision in the government’s favor. Judges Janice Rogers Brown, Merrick B. Garland, Karen LeCraft Henderson, Judith W. Rogers, and David S. Tatel voted against rehearing while Chief Judge David B. Sentelle and Judges Douglas H. Ginsburg, Thomas B. Griffith and Brett M. Kavanaugh supported it. Interestingly, the three Clinton appointees and one George H. W. Bush appointee voted in the majority, while both Reagan and two of the three George W. Bush appointees dissented. The other George W. Bush appointee, Judge Brown, who is considered to be the most libertarian (she gave the B. Kenneth Simon Lecture at Cato’s 2007 Constitution Day conference) but also the most inscrutable, turned out to be the wild card. (But she won’t be the swing vote for long because President Obama will have two vacancies to fill on the court.)

Lawyers for the Free Enterprise Fund, who include our friends at the Competitive Enterprise Institute, had earlier indicated that if they failed to get en banc review, they would seek certiorari in the Supreme Court. The narrow split in the D.C. Circuit probably enhances the chance that the justices would agree to hear the case, except that the Court this year has shown a reluctance to take on especially newsworthy (i.e., both controversial and significant) constitutional cases.

The "Business Case of the Century"

On Monday, the Supreme Court will hear the case of Wyeth v. Levine, which the U.S. Chamber of Commerce has called the “business case of the century.” A Vermont woman who had to have an arm amputated after a nausea drug was improperly administered sued the drug’s manufacturer, Wyeth (she also sued the clinic, physician, and physician’s assistant, but these parties settled). She won in state court, and Wyeth sought review in the U.S. Supreme Court under the theory of “preemption” — that states cannot regulate (by statute or common law) in fields, like pharmaceuticals, where the federal government already does. Here the FDA had approved Wyeth’s label, but Wyeth did not change that label to conform to Vermont’s particular (and stronger) laws.

I don’t know whether this is the “business” case of the century, but it may well be that for the pharmaceutical industry. The outcome turns on a close reading of the statute — as Dan Troy and Becky Wood detailed in the most recent Cato Supreme Court Review, the Court is much more likely to endorse “explicit” rather than “implicit” preemption — but everyone (especially patients) will be better off if the Court upholds FDA preemption here. The courts should not be micro-managing what goes on labels or we will end up with the “overwarning” problems that defeat the labels’ purpose. Moreover, litigation is a blunt regulatory instrument that tends to skew the FDA’s already warped incentives to give too much weight to rare side-effects at the cost of prohibiting or suppressing useful drugs. These incentives, and the related litigation costs, ultimately affect the development of new drugs.

[Cross-posted at Cato's blog.]

Sarah in Charge?

Some in the media (or at least Keith Olbermann at MSNBC) are ridiculing Sarah Palin’s recent answer to a third-grader’s question of “What does the Vice President do?” The part of her response that seems to have people in a tizzy is the following: “[A] Vice President has a really great job, because not only are they there to support the President agenda, they’re like a team member, the teammate to that President. But also, they’re in charge of the United States Senate, so if they want to they can really get in there with the Senators and make a lot of good policy changes… ” (emphasis added). Haha, Ms. Caribou Barbie Palin, the wags chortle, don’t you know that the Vice President is only mentioned four times in the Constitution (two of which mentions are in later amendments) and has no power but to break ties in the Senate?

Well, that’s right, except it’s not. While true that the only formal power the Constitution (specifically Article I, Section 3) gives the VP is to cast the deciding vote when the Senate is deadlocked, the Constitution is understandably silent as to what else the VP can do with his or her time. Yet nobody would deny that Dick Cheney has been an extremely powerful figure, and not because of any explicit powers but because he has aggressively pushed the Bush Administration’s agenda and lobbied senators (particularly Republicans). So sure, the VP can have a big effect on policy.

Moreover, the VP is the “President of the Senate,” which is sort of like being in charge — if indeed anyone is in charge of that motley group of wannabe presidents. This isn’t “in charge” the way a president or CEO is “in charge” — the VP can’t fire senators or force them to vote a given way or veto their bills — but I don’t think anyone can reasonably construe Palin’s comments to imply that. The most reasonable construction is that she was trying to explain in her own words what being “President of the Senate” means, and could’ve done a lot worse than characterizing it as being “in charge.”

You can read more on this issue in this CBS News posting, which further quotes my thoughts on the matter.

[Cross-posted at Cato's blog.]

Litigating the Fourth Amendment in the Supreme Court

In this first week of the new term, the Supreme Court heard two Fourth Amendment cases. The first, Herring v. United States, asked whether evidence obtained based on an erroneous arrest warrant (called in by a police clerk from a neighboring county) should be suppressed. The second, Arizona v. Gant, looked into whether the long-standing “Belton“ rule that a police officer may search the passenger compartment of an arrested person’s car should be set aside when the search — typically justified on “officer safety” grounds — occurs after the arrested person is handcuffed and locked in the back of a squad car. The easy legal answers would seem to be yes and yes (though I have qualms about the exclusionary rule — which is fairly unique to America – as a matter of policy), but then it’s hard to craft a readily administrable legal rule that would get you there without creating an equally unjust result in other circumstances. Hard cases, as they say, make bad law.

But my point is not to argue the finer points of Fourth Amendment doctrine. Instead, it is to highlight the difficulty of arguing those points in the rarefied air of the Supreme Court. As the SCOTUSblog analysis of the arguments in the above cases concluded:

The arguments in these cases illustrate the complexity of arguing Fourth Amendment cases before this Court. It is not simply a question of appealing
to Justices’ support for, or skepticism of, the exclusionary rule or broad
discretion for law enforcement officers. Many of the Justices are also concerned
about need for clear, administrable rules, while others simultaneously resist
the inflexibility and illogical results a bright-line rule inevitably gives rise to. And while some Justices are more than ready to abandon old decisions and doctrines they believe were wrongly adopted or no longer make sense (be it the exclusionary rule or Belton) others feel strongly about the Court’s obligation to adhere to its prior precedent absent strong justification for departure. And to make matters worse, these various considerations often point in different directions and cut across the traditional liberal-conservative lines on the Court: Justices Breyer and Alito worry about stare decisis, while Justice Thomas is much less concerned; Justice Kennedy wants a rule that makes pragmatic sense, while Justice Scalia doesn’t care if the rule is nonsensical if it has a historical pedigree; Scalia worries about a vague standard for applying the exclusionary rule, but the Chief Justice not so much. In the end, the
cross-currents can sometimes give advocates more to work with in crafting arguments that can attract five votes. But at the same time, it sometimes makes the task of holding together a coalition quite complicated.

In short, separating out death penalty cases, it is in criminal law where the justices can be the least predictable.

[Cross-posted at Cato's blog.]

First Monday: A New Year at the Supreme Court

Today the Supreme Court begins a new term, and so far there is little for either constitutional scholars or the general public to get excited about. While two years ago the Court split 5-4 in a full third of its cases (with Justice Kennedy in the majority on each one), and last year produced fewer such decisions (and also fewer unanimous and 8-1 verdicts) but maintained sharp divides on high-profile cases involving Guantanamo Bay, the Second Amendment, and the death penalty, the current term seems to lack any striking features. Instead we have a raft of cases involving technical issues of statutory interpretation and minor doctrinal adjustment, especially in the areas of environmental and employment law, and criminal procedure. Even the typically riveting First Amendment cases fall flat, with the FCC’s obscenity regulation turning on administrative procedure and the lone religion matter concerning a quixotic use of private speech in a public forum. We can expect to see most of these cases decided by broad majorities on narrow grounds, perhaps reflecting the “minimalist” approach Chief Justice Roberts allegedly prefers. Still, given the small number of cases — the Court filed a leisurely 67 opinions on the merits after argument last year (the lowest number since 1953) and is on pace for not many more this term – it’s hard to read any trends into the Court’s work. And the last time Court watchers protested this much about the “boring” nature of the docket, October Term 2000, we ended up with the little-known case of Bush v. Gore. We will see very soon whether next month’s election — or indeed the bailout — will make history repeat itself.

Reaping the Fruits of Judicial Obstruction

Yesterday the U.S. Court of Appeals for the Fourth Circuit (covering Maryland, Virginia, West Virginia, North Carolina, and South Carolina) issued a complicated (216-page) and fractured (5-4, with a plethora of conurrences and dissents) decision that turned on one judge joining four colleagues on one issue and four other colleagues on another. Essentially, the Al-Marri case says that the president has the power to order the indefinite military detentions of civilians captured in the U.S., but that these “enemy combatants” must be given more of an opportunity to challenge their detention in federal court than has been given.

This is a big mess of a decision — right or wrong, no clear guidelines emerge – the substance of which I won’t get into and, in any event, it’s on the fast track to the Supreme Court. What I do want to comment on, however, is the larger significance of the 5-4 splits in this en banc (meaning all the court’s judges review the earlier decision of a three-judge panel) case.

Regardless of the merits of this case — with dueling 5-4 votes on the two main issues it’s obviously a close (and unprecedented) call — this case highlights yet again the disastrous consequences of our broken judicial confirmation process. The court that decided this important case has 15 authorized judgeships, yet only nine judges participated. One judge recused himself for an unspecified reason, one was confirmed too recently, and four crucial slots are vacant. While both parties have done their fair share to poison the confirmation well, Democrats are clearly the ones to blame for the current impasse over judges. President Bush — who in one of his first acts appointed a previously lapsed Clinton nominee, Roger Gregory, to this same court – has named nominees for all four vacancies, but the Senate has refused to act on them. The longest-suffering, District Judge Robert Conrad of North Carolina, will tomorrow have been awaiting an entire year and has not even gotten a Judiciary Committee hearing.

The Court of Appeals for the District of Columbia Circuit has been similarly hamstrung, its ten judges increasingly splitting 5-5 on the important issues of the day while Peter Keisler, the person nominated to the seat John Roberts vacated when he became Chief Justicehas been awaiting an up-or-down vote for over two years. (Keisler is the most qualified lower-court nominee since Miguel Estrada, who withdrew his name from consideration after being filibustered ostensibly because Democrats were wary of confirming a conservative Hispanic who would have instantly become a contender for the next Supreme Court vacancy. Keisler is also on record as having opposed the controversial ideological vetting of new Justice Department hires.)

By their (in)action, first as minority filibusterers and now as majority obstructers, Senate Democrats hamper the judicial process and invite messy and inconclusive decisions like Al-Marri.

[Cross-posted at Cato's blog.]

Supreme Court Crack-Up (and Down with Punitive Damages)

Certain commentators are noting the relative dearth of 5-4 decisions this term after a full third of last year’s cases were decided by that narrowest of margins (with Justice Kennedy in the majority in all of them). That’s a bit premature, however, as already the last ten days have produced more 5-4 cases than the term leading up to them. Tomorrow — with the contentious issues of energy deregulation, campaign finance, and, of course, the D.C. gun ban — will no doubt have even more. They always leave the close cases for the end, folks, and none of today’s four cases were anywhere near unanimous. The two decisions that got all the attention, of course, were Kennedy v. Louisiana (capital child rape) and Exxon v. Baker (punitive damages from the Valdez spill).

I won’t say much about Kennedy, other than that, as he has so, so many times in the past, Justice Kennedy again shamelessly substituted his own policy preferences for the will of the people. Regardless of one’s views on whether certain types of crimes short of murder (aggravated rape, child rape, treason, etc., etc.) warrant the death penalty, this is an issue properly left to the people and their elected representatives in state legislatures. We do not pick nine (left alone five) black-robed lawyers to be our moral arbiters, philosopher-kings, or bureaucrats-in chief. Kennedy versus Louisiana indeed!

As for Exxon, here we have the curious situation on the Court splitting 4-4 (Justice Alito having recused himself for owning Exxon stock) on the question of whether maritime law — the Court was only reviewing issues of federal maritime not constitutional law — permits punitive damages for the acts of agents. This means that, on that issue, the Ninth Circuit’s opinion is summarily affirmed (without setting Supreme Court precedent), a terrible result because the Courts of Appeal are themselves split. The Court went on, nevertheless and I think properly, by a 5-3 vote to vacate the $2.5 billion punitive damages award because, under maritime common law, punitives should be limited to the amount of compensatory damages (here $507.5 million). The trial lawyers are, of course, upset (at losing 80% of their contingency fee). For further comment both on the issue of deadlock-producing recusals and punitive damages, I’ll save pixels here and refer you to my podcast.

And again, stay tuned tomorrow for D.C. v. Heller (guns, for which my colleague Bob Levy is co-counsel and in which Cato filed an amicus brief), Davis v. FEC (campaign finance, in which we also have a brief), and Morgan Stanley v. Public Utility No.1 (electricity contracts). The way the opinions have come down, smart money is on Scalia writing Heller (majority or plurarity) and Alito writing Davis. Note that all three cases were long ago selected for inclusion in this year’s Cato Supreme Court Review.

[Cross-posted on Cato's blog.]

No News is No News

The Court did not issue Heller today, which means it will do so Wednesday (or Thursday if, as expected, it does not get through its 7 remaining opinions on Wednesday). The encouraging news from today is that Heller is the only opinion outstanding from the cases argued in March, and Justice Scalia is the only justice who has not yet written a majority opinion from that sitting. That’s no guarantee, but the smart money is he will be the author.

The discouraging news from today is that the Court denied cert in Baylor v. United States, a federalism case in which Cato filed an amicus brief. Briefly, we supported a pizza-shop robber who was prosecuted not in state court for, say, robbery, but in federal court for ”interfering with interstate commerce” and therefore violating the ”Hobbs Act” (a 1946 anti-racketeering law). The Sixth Circuit held that the Commerce Clause permitted this prosecution because the pizzeria got its flour, sauce, and cheese from various states outside Ohio. We argued that prosecuting robberies that have such an attenuated effect on interstate commerce destroys the line between the states’ power to punish violent crime and Congress’s power to regulate interstate markets.

Also not decided today were Davis v. FEC, the “millionaires’ amendment” campaign finance case in which we also filed a brief, and Exxon v. Baker, where $1.5 billion in punitive damages is at stake over a super-technical application of maritime law.

[Cross-posted at Cato's blog.]

Supreme Court Stands Up for Free Speech in California

Today, by a vote of 7-2, the Supreme Court overturned a California statute that prohibited employers from speaking out on issues relating to unions and labor policy. The restriction even applied to the payment of salaries, speaking about unions to employees working on state contracts, and meeting with employees on state property to discuss union-related issues. The statute, passed after intense lobbying by the AFL-CIO, applied to any employers who received over $10,000 in state program funds – including everything from MediCal reimbursements to payments for building roads and schools. The only significant exceptions all relate to employer speech favoring union activity.

Cato filed a brief supporting the petitioners in this case — the Chamber of Commerce and a group of small business owners — to argue that 1) the case should be decided on labor law grounds because the National Labor Relations Act (NLRA) clearly prohibits state regulations of this kind; but 2) if the Supreme Court reached the First Amendment issue that the Ninth Circuit took it upon itself to decide (and decide erroneously), the statute should be struck down because it imposes an unconstitutional condition on the receipt of state funds and burdens private speech in an area unrelated to the programs for which the funds are given. In the end, the Supreme Court correctly decided the case on NLRA preemption grounds — that California intruded on an area that is properly left to Congress’s authority – noting its own 1976 determination that Congress had left unionization activities to be “controlled by the free play of market forces.” As Justice Stevens aptly stated, California’s statute acted to regulate within “a zone protected and reserved for market freedom” and thus had to be struck down.

[Cross-posted at Cato's blog.]

Lawyers Write Laws to Protect Lawyers... I'm Shocked!

As my colleague Tim Lynch, product of Marquette Law School, can attest, graduates of Wisconsin law schools become members of that state’s bar without having to take an exam. Understandably, out-of-staters (or even Wisconsonians who go elsewhere for law school and then want to return home) might be jealous. Now a federal judge has granted class status to a group of law school graduates who have earned law degrees outside Wisconsin and want the same right as in-state grads to practice in the state without passing a bar exam. (The judge also dismissed the suit as moot because the plaintiff had since passed the bar exam, but apparently this plaintiff has since added his wife and another recent law grad and hopes to take another bite at that apple.)

Wisconsin’s policy is obviously little more than a bit of protectionism meant to give its two law schools (Marquette and UW) a competitive advantage over regional rivals (or to retain, at the margins, Wisconsonians who might be tempted to go to other schools which they perceive as better or which offer them scholarships). But it may not be unconstitutional, at least not on the grounds the suit alleges — as a violation of Congress’s exclusive power to regulate inter-state commerce (state-specific bar rules are unlike the state-specific railroad gauges — which the Supreme Court has ruled to be unconstitutional on Commerce Clause grounds — because each state has its own substantive and procedural laws). Indeed, it is easy for Wisconsin to argue that its schools are the only ones that specifically teach its laws. Similarly, though many states allow experienced (typically five years) lawyers to waive into their bar, others (including — surprise, surprise – all major retirement destinations: HI, CA, AZ, TX, FL) require exams of all comers, even, say, a former Supreme Court justice.

A better argument to counteract all this nonsense can probably be made on equal protection grounds — on which the Supreme Court struck down citizenship requirements in 1973 — but even those formulations have failed in the context of, e.g., state bars that exclude non-permanent resident aliens (there goes my dream of practicing in New Orleans). In any event, I suspect that, at least in the Wisconsin case, a court would apply “rational basis” review and, for the reasons stated above, find for the state.

A free market solution would, of course, eliminate all the bar membership requirements for legal practice, giving clients the option to hire moderately trained non-lawyers — at cheaper rates! — for relatively simple matters such as simple wills, small claims litigation, uncontested divorces, etc. Much as lawyers can now advertise which law school they graduated from, the “real” lawyers would be able to say that they’d passed the bar, had their “character and fitness” reviewed by a committee, tried x number of cases, and other indicia that would distinguish them from hucksters selling the legal equivalent of snake oil.

[Cross-posted at Cato's blog.]

But What About the Children?

Sometimes the Supreme Court makes news for the cases it doesn’t take, not just the opinions it produces in cases it hears. Today marked one such occasion, when the Court denied cert in Dupuy v. McEwen, in which Cato filed an amicus brief.

For more than a decade, the Illinois Department of Child and Family Services has investigated parents based on anonymous tips of abuse or neglect, and deemed them “indicated” after a cursory investigation by state officials who have no effective check on their unilateral authority. Unlike actual child abuse cases, in which the State removes children from abusive situations with judicial approval, the State takes a different route with “indicated” parents – threatening them with what it calls a “Safety Plan.” In so doing, the State demands that parents abandon their homes and families pending an investigation of unlimited duration. Frequently State officials will threaten to remove children immediately into foster care if the parents do not “consent” to the plans without counsel and without negotiation. According to the Seventh Circuit, parents are not allowed to challenge the plans in a judicial or administrative forum if they “consent” to the State’s demands, even if they do so only after being threatened with the loss of their children. Our brief, which supported the class of parents petitioning the Supreme Court for review of these practices, argued that these “Safety Plans” violate the Due Process Clause because they infringe on fundamental family rights without affording any opportunity to challenge state action. They also vest unfettered discretion in state officials to infringe on parents’ fundamental rights. Finally, they represent an unconstitutional condition that forces parents to make an agonizing choice between abandoning their children in the hope that the State’s vague concerns would be mollified by subsequent investigation, or taking the risk that the State would make good on its threat to remove their children into foster care without a hearing.

We had some hope on this case because the Court had asked Illinois to respond to the cert petition (immediately after receiving our amicus brief I should add!), and also because SCOTUSblog had picked it as “one to watch,” but it was not to be. It’s not a tremendously surprising outcome given the tangled procedural history underlying the case — making it a less than ideal vehicle for presenting these issues — but still a disappointing result for parents, children, and freedom from state coercion.

[Cross-posted at Cato's blog.]

Boumediene Not a Clear Win for Anybody

My colleague Tim Lynch has long supported the petitioners in Boumediene v. Bush, and yesterday wrote a blog post and statement commending the Supreme Court’s contentious 5-4 decision granting enemy combatants the right to challenge their Guantanamo detention in federal court. I have been skeptical of this position because the painstakingly legislated (but never allowed to be tested) DTA procedures seem constitutionally adequate on their face — and anyway reviewable in the D.C. Circuit — because it is dangerous for courts to trump both Congress and the President in micro-managing military decisions, because a national constitution cannot extend to all corners of the globe, and for other reasons. Yesterday’s majority opinion, providing for some nebulous future habeas right to be negotiated in the District Court for the District of Columbia (see this press release from Chief Judge Royce Lamberth, for whom my colleague Bob Levy clerked), confirmed my fears. As Chief Justice Roberts concludes in his dissent:

So who has won? Not the detainees. The Court’s analysis leaves them with only
the prospect of further litigation to determine the content of their new habeas
right, followed by further litigation to resolve their particular cases,
followed by further litigation before the D. C. Circuit—where they could have
started had they invoked the DTA procedure. Not Congress, whose attempt to
“determine— through democratic means—how best” to balance the security of the
American people with the detainees’ liberty interests [citing Justice Breyer’s
concurrence in the 2006 Hamdan case] has been unceremoniously brushed
aside. Not the Great Writ, whose majesty is hardly enhanced by its extension to
a jurisdictionally quirky outpost, with no tangible benefit to anyone. Not the
rule of law, unless by that is meant the rule of lawyers,who will now arguably
have a greater role than military and intelligence officials in shaping policy
for alien enemy combatants. And certainly not the American people, who today
lose a bit more control over the conduct of this Nation’s foreign policy to
unelected, politically unaccountable judges.

I still haven’t finished digesting the 126-page (plus 8-page syllabus) mess that the Court issued yesterday — so much for a term without controversial split decisions — but I rather think Justice Kennedy’s prolix disquisitions on de jure versus de facto sovereignty over Guantanamo, the nature and history of habeas corpus, the Constitution’s survival in extraordinary times, the delicate balance between liberty and security, etc., etc. are beside the point.

Ultimately the issue in Boumediene is not about preserving the right to the “Great Writ” versus arbitrarily holding people for the duration of a generation-long war without recourse to judicial review. We are not Great Britain, after all, whose parliament this week approved a bill extending to 42 days the length of time the government can hold a terror suspect without charging him – and therefore without any recourse to challenge this detention. (Hat tip to my colleague David Boaz for highlighting this disgrace in the context of shadow home secretary David Davis’s resignation in protest.)

No, this was a case asking whether the people of the United States, through their elected representatives, can conceive a difference between detentions effected by law enforcement operations and those arising from military action. And establish separate procedures for handling the two. According to five black-robed activists, they cannot. Both our criminal justice system and our national security will be the poorer for it – as, ironically, will the detainees, who will now suffer more delay in processing their complaints, not less.

Truth is Stranger than Fiction Even in Hollywood

The LA Times yesterday revealed that Chief Judge Alex Kozinski of the Ninth Circuit, one of the highest-profile jurists this side of the Supreme Court, has stored various sorts of pornography (to put it mildly) on a publicly accessible website featuring sexually explicit photos and videos. (The site is now down.) Kozinski conceded in the LAT interview that some of the material was inappropriate, but defended other sexually explicit content as “funny.” The story came out because — from the department of “you can’t make this up” — Kozinski was slated to preside over the obscenity trial of a filmmaker whose movies featured, among other things, bestiality and defecation.

Kozinski, who is a staunch defender of the First Amendment and generally a great friend of liberty, was assigned the case as part of a rotation in which he and other appellate judges occasionally “sit by designation” in the lower courts. With the revelation of the judge’s own stash of materials that arguably parallel the defendant’s, we already hear demands that Kozinski recuse himself from this particular case. Setting aside the merits of obscenity law and jurisprudence or even judging, as it were, Kozinski’s behavior, a reasonable argument can be made for recusal simply because the high-profile nature of the case, combined with the high-profile nature of this strange episode, can easily lead to an appearance of impropriety. Heck, Supreme Court justices recuse themselves for much less — such as holding small amounts of stock in large corporations that would benefit from a given ruling. (Then again, they also refuse to recuse themselves for what could be called more, like when Justice Scalia went duck-hunting with Vice President Cheney while a case involving the latter was pending before the Court.)

But that is where this should stop. While Kozinski surely showed questionable judgment (and/or technological ineptitude — equally surprising given the judge’s penchant for video games and scholarly writings on intellectual property) in not keeping his collection of pictures and videos private, his performance on the bench has been nothing short of exemplary. While Kozinski’s libertarian instincts at times flummox liberals and conservatives alike, and his colorful personality and writing style are unusual if not welcome in the often staid legal world, the man is a judge’s judge.

Because Kozinski typically shares Cato’s constitutional leanings (with a notable exception on the Fifth Amendment’s Takings Clause), I wrote about him here and here, after he took over the chief judge’s gavel in December of last year. I concluded my articles thus:

Kozinski’s personal style may rub some of his colleagues the wrong way, but just
maybe the court as a whole — so long derided as being out of step with the rest
of the country — will, in better reflecting its new chief’s quirks, fall into
line.

I clearly wasn’t talking about the sorts of quirks that we now see, but perhaps nothing should surprise us about those who practice law (or sit on the bench) in what many call the “Ninth Circus.” Regardless of where this episode ends, it is a bizarre turn of events.

[Cross-posted at Cato's blog.]

"Dog Bites Man" Passes for Legal News These Days

“The Supreme Court this week made big news because it hardly changed the law at all,” reports The Washington Post. “The court broke no new ground in deciding that workers are protected from retaliation for complaining about discrimination, just as they are protected from discrimination itself.” The story goes on to quote part of this press release that I wrote yesterday:

The Gómez-Pérez and Humphries rulings reinforce what should be readily apparent
to objective Court-watchers: The Roberts Court is neither necessarily
“pro-business” nor “conservative.” Instead, the Court evaluates the legal merits
of each case and rules accordingly. Even where the Chief Justice disagreed with
his colleagues (and notably with an opinion written by Justice Alito), in the
Gómez-Pérez case, the disagreement was a technical one over statutory language
and structure — and not anything that involves judicial philosophy or competing
theories of constitutional interpretation. The most interesting thing to note
from these cases is the difference in the justices’ views of stare decisis, the
principle that the Court places heavy weight on its own precedent. Whereas Chief
Justice Roberts and Justice Alito (and perhaps others) no doubt disagreed with
the precedent upon which the Humphries decision relied, they went along with
Justice Breyer’s reasoning that such disagreement over statutory interpretation
does not justify overturning precedent. Justices Scalia and Thomas, on the other
hand, consider that the risk to legal stability from overturning precedent to be
less than the harm from perpetuating the earlier error. Whatever the
significance of this difference of opinion, it is not an ideological
dispute.

Perhaps more importantly, as I (and apparently others) said to this reporter over the phone, Roberts and Alito are likely to be more accommodating of incorrect but established precedent when they pertain to statutory interpretation rather than constitutional rights. This is because Congress can always itself “overrule” an erroneous body of statutory construction by passing a new law — but of course the Court has the final word on constitutional issues (barring a constitutional amendment).

More generally, though, the above analysis, relating as it does to technical statutory construction that only reinforces existing law, would not normally be front-page (or, in this case, page A2) news. The nature of the cases to which the Roberts Court grants review, however — more technical, business issues instead of red-meat “culture war” stuff — suggests that we could be in for more “dog bites man” stories in future.

[Cross-posted from Cato's blog.]

Even Argentina's Good Policies Undermine Its Rule of Law

Much as I hate to rain on my Cato colleague Juan Carlos Hidalgo’s understandable happiness at Argentina's decriminalization of personal consumption/possession of small amounts of drugs, this doesn’t exactly represent a ray of hope in the country's otherwise gloomy policy mix. Not because I believe in the War on Drugs – I can’t imagine anybody at Cato does – but because it was a court that reached this decision instead of a policymaking body.

Imagine the outcry if the U.S. Supreme Court simply decreed a policy it didn’t like to be unconstitutional – I know, with Justices Stevens and Kennedy at the apogee of their powers, it’s not a far stretch. Better yet, recall the poison the Court injected into our legal and political systems when it short-circuited the political process by inventing a right to abortion in Roe v. Wade (again, I’m not saying anything about the underlying policy arguments).

So it is here: Instead of having the Argentine Congress change the law, the nation’s Supreme Court (by a vote of 4-3) simply decreed that criminalizing drug use is unconstitutional. Reports are still sketchy, but this sounds like precisely the kind of judicial fiat developing (or any) countries need to avoid if they want to strengthen the rule of law.

[Cross-posted at Cato's blog.]

Campaign Finance Reform Meets Kurt Vonnegut

This morning, as Pennsylvania Democrats went to the polls in the last large primary before their nominating convention, the Supreme Court heard the latest challenge to the McCain-Feingold campaign finance law: Davis v. FEC, in which Cato filed an amicus brief, questions the “Millionaires’ Amendment,” which attempts to discourage candidates for election to Congress from spending more than $350,000 from their own personal funds. It penalizes campaign spending above that threshold by enhacing the political speech of the self-financing candidate’s opponent through increased contribution limits and unlimited coordinated party expenditures.

This penalty unconstitutionally chills candidates from engaging in protected political speech beyond that personal funds ceiling, and does so without serving any governmental interest that the Supreme Court has recognized. The penalty doesn’t even prevent the “corruption” that was the rationale for McCain-Feingold, because there is no threat of quid pro quo from a candidates’s expenditure of her own funds. And the Court has expressly rejected “leveling the playing field” of financial resources as an interest sufficient to justofy the infringement of First Amendment rights. Ultimately, the “Millionaires’ Amendment” is nothing more than an incumbency protection mechanism designed by Congress for its own benefit.

Based on this morning’s argument, I think the Court will issue a narrow decision striking down the Millionaires’ Amendment based on the disclosure burden, with separate concurrences on broader First Amendment grounds. The most interesting questioning, not unexpectedly, came from Justice Scalia, who, evoked the reductio ad absurdum of the “leveling” provision (which reminded me of the old Vonnegut story about equality run amock, Harrison Bergeron): “What if one candidate is more eloquent than the other one? You make him talk with pebbles in his mouth?”

Note: My colleague John Samples and I visited Capitol Hill yesterday to give a public briefing on the law and policy of self-funded campaigns.

[Cross-posted at Cato's blog.]

McCain is Better on Judges

Cato scholars have increasingly been evaluating the respective policies of John McCain, Hillary Clinton, and Barack Obama. The trade shop understandably prefers McCain (see my colleague Sallie James’s new paper), as does, cautiously, our director of health and welfare studies, Michael Tanner. The foreign policy shop, meanwhile, doesn’t like McCain because he is ”wedded to perpetual war” and generally given to neoconservative tendencies.

On judges, I’ll go with the trade and health care folks: While John McCain’s views on the First Amendment are unacceptable to freedom-lovers of any stripe, he has at least promised to nominate Supreme Court justices in the mold of John Roberts and Sam Alito (who have ruled against campaign finance restrictions). Obama and Clinton, meanwhile, are in the John Paul Stevens camp of relying on empathy, international opinion, and “my own experience” as a basis for constitutional interpretation.

Indeed, while defending his vote against Chief Justice Roberts’s confirmation, Obama explained that his standard for a justice must be “one’s deepest values, one’s core concerns, one’s broader perspectives on how the world works, and the depth and breadth of one’s empathy.”
As Jonah Goldberg says in a devastating column, “Now that is a pure expression of the principle of judicial fiat.”

Supreme Court justices take an oath to “administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent on me as a justice of the Supreme Court of the United States under the Constitution and laws of the United States, so help me God.” Any contention that justices must tilt toward any particular type of party — the downtrodden (or privileged), the politically unpopular (or popular), the ethnic minority (or majority) — is an argument for judicial dictatorship instead of the rule of law.

As Roberts said when Senator Richard Durbin (D-IL) asked him whether he would be “for the little guy,” if the law says the little guy wins, then the little guy should win — and if the law says the big guy wins, then it would be a miscarriage of justice to rule for the little guy. And those who don’t like that result should complain to their elected officials and get the law changed.

[Cross-posted at Cato's blog.]

Supreme Court to Nation: Happy Tax Day!

In a fit of either highly coincidental timing or good humor, the Supreme Court today released opinions in two tax cases. In MeadWestvaco Corp. v. Illinois Department of Revenue, the Court limited the power of states to tax the money that a company based in another state earns when it sells off an investment in a division involved in a separate line of business. In U.S. v. Clintwood Elkhorn Mining Co., the Court decided that a taxpayer seeking a refund for an invalid tax under the Constitution’s Export Clause must seek a refund from the government before bringing a lawsuit.

So the taxpayers went 1-1 today, but the cases were both technical and not worth getting into. Perhaps the only interesting thing about them — aside from this whole Tax Day thing — is that they were both unanimous. This technicality and unanimity could be further evidence of Chief Justice Roberts trying to steer the Court to take on less high-profile (typically business) cases, with narrow issues that prevent the fractured 5-4 decision-making that make the Court seem more political than it really is (or should be).

[Cross-posted at Cato's blog.]

Dispatch from the ASIL Conference III

Some wrap-up notes from the ASIL conference that concluded on Saturday:

1. The second panel I attended Thursday covered the very timely “Civil Liberties in Times of Crisis.” Air Force Colonel Morris Davis — who resigned as chief prosecutor at Guantanamo — opened with a criticism of the military tribunals as unworkable; he agreed that terrorism detainees held in Gitmo (let alone Iraq) don’t have constitutional rights, but the politicization of the process has delegitimized what should be an open, transparent, and efficient processing of enemy combatants. Covington & Burling partner David Remes, who has represented many of the detainees, called for simply applying the criminal justice paradigm to international terrorists (as with the blind sheik after the first WTC bombing and with Timothy McVeigh). Hofstra’s Julian Ku continued that line by supporting the extension of constitutional rights to foreigners and applying international law domestically. Human Rights First’s Elisa Massimino called for the U.S. to be a shining city upon a hill (my characterization, certainly not her words) in terms of being an example on human rights — and linked American political power to its respect for international law.

Then came Q & A, which as it happened centered mostly on a very short question that I asked: Is there a difference between national security and law enforcement, and if there is what are the consequences for the handling of detainees suspected of being terrorists? Col. Davis said that national security is the correct paradigm but that the military commissions have been poorly executed by political appointees. David Remes, to his credit, explained that the real difference between national security and criminal justice is one of policy, and it is not up to the courts to make those kinds of decisions.

My view: I agree with Davis that national security courts (along the lines proposed by Jack Goldsmith and Neal Katyal) are the only way to go in this world of post-modern asymmetrical warfare. National security and law enforcement are different governmental functions, and to conflate the two (like John Kerry did in 2004) or to suggest that constitutional rights apply to everyone everywhere (but international law is supreme in the U.S.) is to throw out the most basic understandings of political theory.

2. On Friday I attended a very interesting panel on the Economic Security and the Committee on Foreign Investment in the U.S. (the latest reform of which I wrote about here). On CFIUS, everyone seems satisfied with the latest reform (which increased openness and aims to prevent political blow-ups like Dubai PortsWorld) and is comfortable with handling of Sovereign Wealth Funds, which Dan Ikenson and Jim Dorn have written about recently. [Also, note that last week Canada’s equivalent of CFIUS blocked a foreign acquisition for the first time time ever. The purchasing company was from… the US! The Canadian company is a leading satellite reconnaissance developer (e.g., sees through clouds and ice, apparently finding oil/mineral deposits in the Arctic).

3. I also attended a hugely overcrowded — people spilled out into the hallway, and I ended up sitting on the floor beside the panelists’ table — panel on “Restoring Rule of Law in Post-Conflict and Stabilization Operations.” I’ve written about these issues before in the context of Iraq, and this panel mainly provided anecdotes about Liberia, Sierra Leone, and Bosnia. A young British researcher also proposed international trusteeships as a useful mechanism (a la the old — or not so old, see Kosovo — UN protectorates). A difficult set of issues, not least because of questions over the legitimacy of outside intervention, how to achieve post-conflict justice and social reconciliation, and how to advise a legal system without being seen as imposing foreign values.

4. The final events I attended were a roundtable discussion by various foreign ministries’ legal advisers and an address by Zalmay Khalilzad, the U.S. ambassador to the U.N. Both of these were disappointing in that all these people are learned and experienced but didn’t really have anything new to say. If only John Bolton were up there…

[Cross-posted at Cato's blog.]