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.]

Olympic Folly

When we think of the Olympics, we increasingly think of corruption scandals, doping, tacky commercialism and, perhaps even worse, all those sappy human interest stories NBC runs on its telecasts. And now we have the Chinese tarnishing this summer’s Games by cracking down in Tibet, leading protestors to disrupt the torch relay in London, Paris, San Francisco, and elsewhere. If only we could go back to those days when the Olympics brought together the world’s youth to hold hands and sing kumbaya while a few people ran around a track and swam in a pool, right?

Actually, these modern Games (or post-modern, if you consider, as I do, the end of the Cold War as a watershed in geopolitics) are much closer to the ancient Greek model than the festival of shamateurism that a bunch of European aristocrats invented at the end of the 19th century. Since the end of the cold war, the Olympics have thrown off the chains of ideological battle and reverted to the values of the original games, among which were the dominance of the personal over the national, the economic over the political and the athletic over the larger concerns of the state. Thus these new-old Olympics have returned to their entertainment, ritual, and athletic essence, for which we can be grateful.

Which is why — I argue in the National Interest Online – however a particular country wants to express its displeasure with China’s oppressive regime, boycotting the Olympics is not the way to go.

[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.]

Dispatch from the ASIL Conference II

This morning I attended two panels at the ongoing American Society of International Law Conference. The first was “The Politics of War Crimes Tribunals,” which refreshingly did not simply rehash the formation of the International Criminal Court but dealt with the meatier issues of how to decide whom to prosecute, what kind of justice to pursue, etc. The panelists, all academics who had played various roles associated with, for example, the Special Court for Sierra Leone, discussed precisely the issue that most interests me: how to draw the line between law and politics. If you overshoot and try to prosecute thousands of perpetrators of unspeakable crimes, spread across multiple countries, your political support will collapse. If you amnesty everyone, there is no justice. Tough decisions have to be made such that there is some justice, which is better than no justice.

One interesting anecdote from this first panel involved the quixotic attempt by Col. Luke Lea and a motley band of doughboys to capture Kaiser Wilhelm at the end of World War One. The panelist who told this story — which was relevant because the plan was to prosecute the Kaiser as a war criminal – misnamed Col. Lea as having been a Texan, when anyone worth his salt knows that it’s “Luke Lea of Tennessee.”

(Ok, ok, the only reason I knew this factoid was because when I interned for former Senator Bill Frist (R-TN) over a decade ago, I was charged with writing an essay on Lea as part of a project to document the lives of all Tennessee senators. Lea was a one-termer who, upon losing the Democratic nomination after the passage of the Seventeeth Amendment — direct election of senators – volunteered for the Great War.)

[Cross-posted at Cato's blog.]

Dispatch from the ASIL Conference

Yesterday afternoon marked the beginning of the 102nd meeting of the American Society of International Law (ASIL). ASIL is a venerable organization that takes international law seriously, inviting vigorous discussion and rigorous study of a panoply of issues. Which is not to say that its members don’t skew in a particular way on many issues of the day. Generally speaking, cosmopolitans and those who study and promote international law — especially in academia – are toward the left side of the political spectrum. A left-wing bias in this field means a favorable disposition toward universal norms, global jurisdiction by a world court, and otherwise the imposition of elite consensus on domestic courts and polities. Still, the ASIL membership is not nearly as bad in those tendencies as, say, the ABA’s international law practice group — and, as I said, it invites speakers and writers from a variety of perspectives. Moreover, a fair bit of ASIL’s activities relate to private and commercial international law, with which libertarians should have little beef.

In any event, this year’s conference kicked off with the tenth annual Grotius Lecture, given by Jordan’s ambassador to the United States, Prince Zeid Ra’ad Zeid Al-Hussein. Prince Zeid, educated exclusively in the West, has had a truly distinguished career, and seems to be a voice of enlightenment from a dark part of the world. His remarks, however, on the topic “For Love of Country and International Criminal Law,” skewed both technocratic and rhetorical: He implored the world community to overcome legal obstacles to helping the victims of genocide and war crimes while at the same time recognizing that international courts are not welfare agencies. And of course, somehow, yes somehow, we have to reconcile somewhat outmoded notions of sovereignty with a brave new world of globalized crime. I don’t pretend to give his lofty discourse justice, but in the end it was both intellectual and bland.

What was not bland was the commentary of the good prince’s discussant, David Scheffer of Mayer Brown and Northwestern University Law School. Prof. Scheffer, a high-ranking official in the Albright State Department, first drew a round of applause by announcing that the previous speaker was, without doubt “a future Secretary-General of the United Nations.” (Sounds about right.) Then he crescendoed into an excoriation of pretty much every lawyer in the Bush administration for ignoring international law and making the United States into the red-headed stepchild of the community of nations. Again, it would take more time than it’s worth to fisk his entire approach but suffice it to say the learned professor seems to have a hard time distinguishing law from policy and politics. There is much for which to criticize the Bush administration, but violating international law wouldn’t make my top 100 list.

And that is where the rubber hits the rubber on so many of these issues: Much, if not most, if not all, of international law comes down to diplomacy — the willingness of countries to adhere to their obligations and convince others to do so. As described by Jack Goldsmith and Eric Posner in their brilliant book The Limits of International Law, the behavior of nation-states cannot be predicted, and should not be judged, based on whether they sign this piece of paper or that one. For example, states have interests and there is no international mechanism to force states to comply with treaties that at any given time contravene those interests. Period. (It is often in their interest to comply with their international or binational obligations, of course, because few states want to become, literally, pariahs.) There is so much to say on this, and I will certainly be writing about it in future.

And when it comes to the International Criminal Court (ICC) – the chief bone of contention that many of the attendees to this week’s conference have with the American practice of public international law — what’s important is that U.S. troops treat people much better than their Congolese or Indonesian or Venezuelan counterparts, regardless of which countries submit to the jurisdiction of the ICC. That’s some reality-based law for you.

In sum, an eyebrow-raising start to the conference — and a reminder of the strange position of those of us interested and educated in international legal and political issues but skeptical of public international law.

[Cross-posted at Cato's blog.]

McCain the Burkean?

Jonathan Rauch has a fascinating short essay in the May edition of The Atlantic (not yet available online) labeling John McCain as a solid conservative, with his seeming anti-establishmentarian iconoclasm nothing more than another indicia of the G.O.P.’s desertion of its core values.

McCain, you see, is a true follower of Edmund Burke, who was “[t]radition-minded but (contrary to stereotype) far from reactionary,” believing in “in balancing individual rights with social order” and advocating only incremental, thoughtful reform. Modern conservatives (or at least Republicans), on the other hand, disdain “small ball” and want to blow up the government.

It’s a clever analysis, especially the contrast of conservative ideas with conservative temperament (though a candidate whose temper is often said to be an Achilles heel is hardly the best vehicle for making that distinction). Ultimately Rauch is too clever by more than half, however, torturing McCain’s policies until they confess to the writer’s thesis. For example, even if it were true that McCain’s campaign finance work ultimately “produced a reform that was mostly modest in its aims,” the Senator’s attack on free speech is a square peg that cannot be forced into a round Burkean hole. And McCain’s latent support for the extension of the Bush tax cuts can much more easily be attributed to presidential politics than to the notion that after only a few years a policy “becomes well established and woven into everyday life” (and therefore must continue lest societal stability be torn asunder).

“McCain,” Rauch concludes, "is an antirevolutionary, not a counterrevolutionary.” That may be true in some sense — and McCain’s views on many issues are genuinely conservative (just as others are libertarian and yet others herald a trust-busting populism) – but it doesn’t make him Burkean.

[Cross-posted at Cato's blog.]

You've Come a Long Way, Baby

I just finished Steven Teles’s important new book, The Rise of the Conservative Legal Movement. As far as legal nonfiction goes, this is not going to be the bestseller that Jeffrey Toobin’s or Jan Crawford Greenburg’s recent tomes on the Supreme Court have become, let alone Clarence Thomas’s memoirs. In part this is because more people are interested in the intense Kremlinology of the least public branch of government – the nine black-robed margistrates in their marble palace at One First Street — than in the nuts and bolts of the reaction to the left-wing excesses of the legal academy.

But more than that, this worthy study will fly under the radar more than it otherwise should because it is an academic book, written with the research methodology and citation practices of a social scientist investigating a particular phenomenon. It is to Teles’s great credit that he avoided (for the most part) the political science jargon in which such a project could have gotten swallowed, but a journalistic narrative this ain’t. Perhaps to even greater credit, Teles managed to write this book without once resorting to the often confusing and usually superfluous empirical models and regression analyses that are now demanded by practitioners of the “soft” sciences — probably because he already has tenure.

Teles ably takes us through the development of law and economics — the only way to get alternative voices into law schools resistant to anti-New Deal, anti-Warren Court views – and two generations of libertarian/conservative public interest law, as well as cataloguing the wealth of archival materials from what the Clintons considered the heart of the vast right-wing conspiracy, the Federalist Society. Curiously, the only mentions of Cato are in a footnote describing Charles Koch as one of our founders and a brief reference to my boss, Roger Pilon, “fuming in his Washington office when the [Harriet] Miers [Supreme Court] nomination was announced.”

In any event, I do recommend the book to those interested in the succsses, failures, and false starts of a broad movement to save the law — and consequently legal practice and the courts — from the radicalization that beset academia and public interest organizations in the 1960s. Is it better to set up law & econ outposts in hostile institutions (Yale, Harvard) or takeover law schools wholesale (George Mason)? Is it better to have businessmen (Mountain States Legal Foundation) or idealists (Institute for Justice) running a public interest litigation shop? What sorts of cases are best taken up by the likes of IJ so as to have maximum long-term effect on the legal culture? These are the sorts of questions Teles analyzes, providing some interesting answers and leaving, as one expects from an academic tract, room for further research.

[Cross-posted at Cato's blog.]

April Fools for Skilled Workers

My latest oped is up on National Review Online today. I return to a theme I've often written about over the years, the inanities of U.S. immigration system:

Quite appropriately, today exposes another facet of the foolishness that is U.S. immigration policy. April 1st is the day each fiscal year when employers are allowed to begin filing petitions with the U.S. Citizen and Immigration Services (USCIS, formerly the INS) for highly skilled workers to be given what are known as H-1B visas.

H-1Bs allow employers to hire foreign workers in certain professional occupations. They are good for three years and can be renewed for another three. Though an H-1B cannot lead to a green card — so the foreign professional is tied to one employer and has to leave the country after a maximum of six years of being a productive member of society — it’s still a pretty good deal.

The problem is that, even in this apparent economic downturn, there aren’t enough of these visas: Congress limits the number of H-1Bs that can be granted each year, and that magic number has been set at 65,000 for five years now. Before that, and in response to the technology boom of the late ‘90s, Congress temporarily raised the H-1B cap to 195,000. But that expansion expired in 2004, and the cap has been reached earlier and earlier each year since.

As they say, read the whole thing.

Bush Opponents Upset That Bush Lost in the Supreme Court

In an interesting side-note to the Medellin decision, the case’s convoluted procedural history made for some rather strange political bed fellows. The Court’s decision, anchored by the “conservative wing” (Roberts, Scalia, Thomas, Alito) and joined by the “moderate” Kennedy and (writing separately) the “liberal” Stevens effectively clears the last remaining roadblock to Texas’s imposition of the death penalty on the murderer Jose Erenesto Medellin. Consequently, Tuesday’s result disappointed death penalty abolitionists, who join on the losing side those who want international law to have direct applicability in the United States. That’s right, by ruling against President Bush’s executive overreach — which at least three members of the Court’s “liberal” wing implicitly ratified — the Court angered cosmopolitan liberals. Go figure.

[Cross-posted at Cato's blog.]

I Am the Very Model of a Modern Major General

Yesterday, in addition to announcing its decision in the Medellin case (which I blogged about here), the Supreme Court heard argument in two cases relating to the War on Terror.

First, in Munaf v. Geren, two U.S. citizens (also citizens of Jordan and Iraq, respectively) held captive in Iraq by U.S. forces — as part of Multi-National Force-Iraq, which may but should be a key determinant – challenged their detention and potential transfer to Iraqi authorities for what they fear will be torture as part of criminal prosecution in Iraqi courts. This seems to be an easier case than Boumediene, a case argued in December wherein Guantanamo detainees challenge their containment and the military commissions by which they are to be tried. (My Cato colleague Tim Lynch blogged about that case here and here, and also filed an amicus brief.)
Whatever hope the detainees had was probably dashed by the incoherent presentation made by Northwestern Law School Clinical Professor Joseph Margulies on their behalf. As Lyle Denniston of SCOTUSblog put it, “when several Justices of the Supreme Court tell an attorney they do not understand his argument, and they do so because the argument was, indeed, fundamentally confusing, the chances of winning may be significantly reduced.” Ouch. Margulies turned what should be relatively straightforward issues into a convoluted maze, and those of us in the audience were not the only ones shaking our heads.

The second argument, and the one relating to the title of this blog post, involved the prosecution of the guy who was caught smuggling explosives into the U.S. from Canada in an attempt to blow up LAX at the turn of the century. (Is it ok to use that expression for the 1999-2000 period yet?) In United States v. Ressam, Attorney General Mukasey exercised the AG’s historical (but not much used of late) prerogative to argue before the high court, defending the 10-year additional prison term slapped on the Milennial bomber for “carrying an explosive” while “committing a felony” — the felony being lying to the border guard. Having learned from Margulies’s example, Mukasey did a workmanlike job and sat down with 14 minutes remaining in his allotted time. The case will turn on some rather technical statutory analysis which I’ll spare you, but it was refreshing to see an appellate advocate who was clearly not there to hear his own voice.

[Cross-posted at Cato's blog.]

Supreme Court to President Bush: Don't Mess With Texas

Yesterday the Supreme Court slipped the Gordian knot of a case that could have come straight from a law school exam, involving federalism, treaty interpretation, the scope of executive power, criminal procedure, and conflicts between international and domestic law. The issues in Medellin v. Texas boiled down to: 1) Whether a particular decision of the International Court of Justice is automatically binding on Texas courts and, if not, 2) Whether President Bush made it binding by issuing a memorandum to then-Attorney General Alberto Gonzales. The Court answered in the negative on both counts by a 6-3 margin.

The result of this decision is that neither the ICJ (the so-called “World Court”) nor the president acting alone can force states to review criminal cases involving foreign nationals. The underlying treaty at issue – which gives foreign nationals accused of a crime the right to meet with consular officials – is not enforceable in the absence of implementing legislation from Congress. The ICJ ruling is similarly not self-executing, and does not gain legal effect merely because the president tells the states to abide by it.

The Supreme Court has thus protected America’s carefully calibrated system of federalism and checks and balances by preventing an international court from overriding a state’s duly enacted (and constitutionally sound) law. Just as importantly, the Court correctly rejected the argument that the president has the power to enforce against the states a treaty that is, in the absence of congressional action, enforceable only by diplomatic means. Telling state courts how to do their jobs is simply not among the powers of the nation’s chief executive.

[Cross-posted at Cato's blog.]

New Yok Times Gets It Wrong, Story at 11

The New York Times Magazine’s most recent issue (March 16, 2008) simultaneously features a shariah apologetic and an accusation that the Supreme Court is in the pocket of big business.
In the former, Harvard law professor Noah Feldman prescribes the election of Islamist parties and entrenchment of Allah’s law (as interpreted by a council of scholars) as the cure to the Muslim world’s ailments. In the latter, GW law professor Jeffrey Rosen contends that liberal and conservative elites — like NYT readers? — have colluded to do in the common man. There is so much wrong with these analyses, one hardly knows where to begin. (For a point-by-point takedown of the Rosen piece, see Eric Posner’s post on Slate’s new legal blog.)

Feldman, who “had a small role advising the Iraqi [constitutional] drafters,” sees shariah as both a proto-aspirational document somewhat akin to our Declaration of Independence and a source of law more legitimate than duly constituted (secular) legal codes. But both of these things cannot be: Either shariah is the law of God as strictly interpreted (on what authority?) by man or it is a non-binding sentiment, much like American politicians’ references to America’s Judeo-Christian values. Advocates of shariah would be the first to admit that if you’re going in for God’s law, you can’t summarily ignore its anachronisms. Let people live under shariah if they so desire, but be wary of its negative externalities.

Rosen, meanwhile, sees a conspiracy involving anyone who has ever studied the “economic analysis of law” (and uses phrases like “negative externalities”) while holding up as a paragon of judicial virtue a jurist who said he was “ready to bend the law … against the corporations.” At the same time, Rosen posits that the Chamber of Commerce destroyed Ralph Nader’s noble crusade to help the consumer and hoodwinked the Court — even, at times, that model of “liberal judicial restraint,” Justice Ruth Bader Ginsburg — by hiring a bunch of rich lawyers (presumably not the same rich lawyers who reap all the punitive damages from the state tort claims that Rosen lauds). These sentiments distort legal history and misunderstand the proper role of the judiciary; to paraphrase a salient point then-nominee John Roberts made at his confirmation hearings, the little guy should win when the law is on his side, and the big corporation should win when the law is on its side.

In short, those of us who believe in the rule of law rather than men and in a Constitution that circumscribes the powers of government are heartened by both the outcry against Rowan Williams and the Supreme Court’s near-unanimous view that corporations are people too (indeed, they are, but legal persons composed of human directors, officers, employees, and investors). But then perhaps we are all in on the conspiracy.

[Cross-posted at Cato's blog.]

California Attempts to Silence State Contractors

Imagine that you do business in California. Maybe you’re in construction, or health care, or auto repair. Now imagine some or all of your income comes from state contracts; using the above examples, perhaps you build schools, or take care of patients on Medi-Cal, or fix broken-down LAPD squad cars. Now imagine that the state comes in and says, aha, because we pay your bills — again, on contracts relating to construction, health care, auto repair, etc. — and we love unions, you can’t talk to your employees about any negative aspects of unionization. Ridiculous, right? Who is a customer to tell you what to do with money that’s already in your pocket?

Well, that’s precisely what the great state of California is trying to do with a new statute that small businesses are challenging in the case of Chamber of Commerce v. Brown. It’s a little bit more complicated than I outline above because the case implicates highly technical provisions of the National Labor Relations Act (and previous Supreme Court interpretations thereof), but the gist is that California is attempting to silence employers by tying speech restrictions to unrelated state spending. For reasons that the petitioners ably present in their briefs and that I summarize in a podcast and in Cato’s own amicus brief, the Supreme Court should strike down this statute.

In any event, that’s the background to my trip to the Court to hear argument in Chamber v. Brown today. (The plaza in front of the courthouse steps was remarkably free of demonstrators after yesterday’s hoopla surrounding the DC Gun Ban case.) I’ll save you the detailed summary of the argument, but suffice it to say that the outcome will almost certainly go against California. It’s always dicey predicting the scorecard, but based on oral argument it will probably be 7-2, 6-3, or maybe 6-1-2. On one side, Justices Scalia and Alito and Chief Justice Roberts were safely on the side of free speech; Justices Justice Souter surprisingly led the charge against California’s interpretation of labor law; Justice Breyer, though skeptical, will likely write his own opinion agreeing in the Court’s opinion for separate reasons or possibly calling for remand rather than strict reversal; and Justice Thomas was silent but is expected to join the majority. On the other side, Justices Stevens and Ginsberg seem to have no problem with California’s regulation. On his own side as usual, Justice Kennedy’s vote seems to be up for grabs, but – based on his decisions in previous labor and regulatory preemption cases – I would bet on him siding with the majority.
In short, California employers will live to speak another day.

[Cross-posted at Cato's blog.]

Keystone Cops, D.C. Auxiliary

In a new plan to combat crime on the streets of our fair city, Mayor Adrian Fenty and Police Chief Cathy Lanier are encouraging residents to submit to voluntary searches of their homes in exchange for amnesty if the residents have illegal guns (or drugs). (”Excuse me, ma’am, mind if I take a look around… “)

Well, this isn’t illegal — consent is, after all, one of the exceptions to the warrant requirement — but it is head-scratchingly poor public policy. Those who don’t want to give up their contraband won’t consent to searches, those who want to get rid of it will find a way to do that without signaling “check here again next week,” and the police will waste their resources rifling through the homes of people with nothing to hide.

Maybe D.C. should pass a law outlawing gun ownership. Oh wait, they already did that and are fighting to keep it in the face of, um, the Second Amendment. (The Supreme Court hears argument in D.C. v. Heller next Tuesday.)

The bottom line is that voluntary home searches, like outright gun prohibitions, only hurt law-abiding citizens. Those who have already chosen to engage in crime will not be deterred merely because their actions violate gun-related ordinances in addition to the laws against robbery, rape, murder, etc. The only guns swept up in this “amnesty” will be those kept by people trying to protect their families from the criminals the police fail to catch.

[Cross-posted at Cato's blog.]