Today the Supreme Court unanimously ruled that the resolution Congress passed in 1993 to apologize for U.S. involvement in the overthrow of the Hawaiian monarchy—a determination that remains controversial among historians—did not affect Hawaii’s sovereign authority to sell or transfer the lands that the United States had granted to the State at the time of its admission to the Union. In an opinion by Justice Alito, the Court correctly explained that the words of the Apology Resolution were conciliatory and hortatory, creating no substantive rights—and indeed the resolution’s operative clauses differ starkly from those which provided compensation to, for example, the Japanese-Americans interned during World War II.
Importantly, the Court also noted that it would “raise grave constitutional concerns” if any act of Congress purported to cloud Hawaii’s title to sovereign lands so long after its admission to the Union. This last point is perhaps most important to the ongoing debate over the “Akaka Bill,” which would create a race-based entity to extract political and economic concessions from the state and federal governments on behalf of ill-defined “native Hawaiians.” It is delicious irony that Hawaii’s attorney general, Mark Bennett, an Akaka Bill supporter, secured this victory.
Just as Hawaii is now allowed to develop state lands for the benefit of all its citizens, hopefully Congress will in future refrain from inflaming racial divisions and instead treat all Hawaiians, regardless of race, with the legal equality to which they are entitled.
Further materials on the above: Here’s Cato's brief in the case, Hawaii v. Office of Hawaiian Affairs. Here are articles I wrote on the case and on the on the Akaka Bill. Here is a write-up of a debate I had at the University of Hawaii last month. Finally, here is a podcast I did for the Grassroot Institute (Hawaii’s free-market think tank) — where, among other things, I correctly predicted the Court’s vote today and the scope of its opinion.
[Cross-posted at Cato's blog.]
Tuesday, March 31, 2009
How Progressive Are You?
I’m two weeks late coming to this, but the “Democratic Wing of the Democratic Party” Obama Administration Farm Team Center for American Progress has developed a quiz aiming to answer the question, “How Progressive Are You?“ The quiz asks you to rank, on a 10-point scale, how much you agree with 40 different statements. Now, I won’t quibble here with the misuse of the word “progressive” — having debased the term “liberal” (which in any other country pretty much means what Cato supports), the Left moves on to its next target — but the quiz highlights the false dichotomy between “progressive” and “conservative.”
The fallacy of this linear political spectrum forces people to wring their hands and call themselves “socially liberal, fiscally conservative” — does anyone call themselves “fiscally liberal” even if they are? — or “moderate” (no firm views on anything, huh?) or anything else that adds no descriptive meaning to a political discussion. Where do you put a Jim Webb? A Reagan Democrat? A Ross Perot voter? A gay Republican? A deficit hawk versus a supply-sider? Let alone Crunchy Cons, Purple Americans, Wal-Mart Republicans, South Park Conservatives, NASCAR dads, soccer moms, and, oh yes, libertarians.
And the statements the quiz asks you to evaluate are just weird. I mean, yes, “Lower taxes are generally a good thing” (I paraphrase) gets you somewhere, but what does “Talking with rogue nations such as Iran or with state-sponsored terrorist groups is naive and only gives them legitimacy” get you? Or “America has taken too large a role in solving the world’s problems and should focus more at home”? What is the “progressive” response to these statements? The “conservative” one? I think I know what the Bush response and the Obama response would be to the first one, but how does either fit into any particular ideology?
The Institute for Humane Studies at least gives you a two-dimensional quiz, so you can see how much government intervention you want in economic and social affairs (the “progressive” view presumably being lots of intervention in the economy, none on social issues). And IHS poses classical debates in political philosophy rather than thinly veiled leading questions relating to current affairs.
In any event, when you finish the quiz, it tells you your score and that the average score for Americans is 209.5. How do they get this number? A selectively biased survey of people who frequent the CAP website would surely scored much higher on the progressive scale. No, it’s based on a “National Study of Values and Beliefs.” Well, ok, but, again, if those are the types of questions you ask people — or, even worse, the quiz designers code the survey responses – I’m not sure how much I care about the result. (Incidentally, the survey reveals that “the potential for true progressive governance is greater than at any point in decades.” Great, that’s either a banal formulation of the fact that Democrats have retaken the political branches or a self-serving conclusion. Or both.)
In case anyone cares, I scored 100 out of 400, which makes me “very conservative.” I suppose that won’t come as a surprise to my “progressive” friends, but then I’m always talking to them about how bad the bailouts/stimuli are for the economy, how we should actually follow the Constitution, etc. All the folks who over the years have called me a libertine or hedonist, however, will not be amused to learn that I’m actually one of them…
[Cross-posted from Cato's blog.]
The fallacy of this linear political spectrum forces people to wring their hands and call themselves “socially liberal, fiscally conservative” — does anyone call themselves “fiscally liberal” even if they are? — or “moderate” (no firm views on anything, huh?) or anything else that adds no descriptive meaning to a political discussion. Where do you put a Jim Webb? A Reagan Democrat? A Ross Perot voter? A gay Republican? A deficit hawk versus a supply-sider? Let alone Crunchy Cons, Purple Americans, Wal-Mart Republicans, South Park Conservatives, NASCAR dads, soccer moms, and, oh yes, libertarians.
And the statements the quiz asks you to evaluate are just weird. I mean, yes, “Lower taxes are generally a good thing” (I paraphrase) gets you somewhere, but what does “Talking with rogue nations such as Iran or with state-sponsored terrorist groups is naive and only gives them legitimacy” get you? Or “America has taken too large a role in solving the world’s problems and should focus more at home”? What is the “progressive” response to these statements? The “conservative” one? I think I know what the Bush response and the Obama response would be to the first one, but how does either fit into any particular ideology?
The Institute for Humane Studies at least gives you a two-dimensional quiz, so you can see how much government intervention you want in economic and social affairs (the “progressive” view presumably being lots of intervention in the economy, none on social issues). And IHS poses classical debates in political philosophy rather than thinly veiled leading questions relating to current affairs.
In any event, when you finish the quiz, it tells you your score and that the average score for Americans is 209.5. How do they get this number? A selectively biased survey of people who frequent the CAP website would surely scored much higher on the progressive scale. No, it’s based on a “National Study of Values and Beliefs.” Well, ok, but, again, if those are the types of questions you ask people — or, even worse, the quiz designers code the survey responses – I’m not sure how much I care about the result. (Incidentally, the survey reveals that “the potential for true progressive governance is greater than at any point in decades.” Great, that’s either a banal formulation of the fact that Democrats have retaken the political branches or a self-serving conclusion. Or both.)
In case anyone cares, I scored 100 out of 400, which makes me “very conservative.” I suppose that won’t come as a surprise to my “progressive” friends, but then I’m always talking to them about how bad the bailouts/stimuli are for the economy, how we should actually follow the Constitution, etc. All the folks who over the years have called me a libertine or hedonist, however, will not be amused to learn that I’m actually one of them…
[Cross-posted from Cato's blog.]
Friday, March 13, 2009
Sanford Rejects Faustian Bargain
On Wednesday, as expected, South Carolina Gov. Mark Sanford became the first governor to reject some of his state’s share of stimulus funds, spurning $700 million (of the about $8 billion headed his way) that he said would harm his state’s residents in the long run. South Carolina’s General Assembly (controlled by Republicans who have long opposed Sanford’s attempts to cut spending, lower taxes, and generally reform government operations), using a provision of the stimulus bill inserted by Rep. James Clyburn (D-SC), nevertheless plans to seek the funds without the governor’s support. They cite section 1607 of the American Recovery and Reinvestment Act of 2009, which provides that, notwithstanding a requirement for gubernatorial certification of a request for funds:
The question arises, setting aside the relative merits of both sides’ positions, whether the governor (or someone else) could challenge this “alternative certification” provision on constitutional grounds. Here are some initial thoughts:
A state executive (and/or citizens of the given state) could bring colorable claims under the Tenth Amendment (powers not delegated to the federal government are reserved to the States and the people) , state separation of powers (legislature exercising executive power), and the non-delegation doctrine (Congress delegating its legislative authority to non-federal actors). Whether such challenges would be successful is a different matter.
The strongest claim would probably be under a combination of the Tenth Amendment and state law (depending on what the state constitution and statutes says about the federal grant process), especially given that much of the federal money is likely to come with strings/mandates attached — or would otherwise pervert state budgeting processes (as Sanford spelled out in a letter to state legislators). That is, depending on the particular program funds in question, it could well be that the federal government is doing an end-run around the state executive in “commandeering” (a term of art taken from the important Supreme Court case of Printz v. United States) state agencies without the full lawful acquiescence of the state government — i.e., without presentment of a bill for the executive to sign in the normal course of legislative action.
Moreover, I’m not sure how federal legislation could lawfully trump a state constitutional/statutory provision requiring that, say, federal monies only be accepted by state agencies subject to executive certification. If it could, then what’s to stop the federal government from putting in a further alternative provision allowing certification by majority vote of a state supreme court, let alone by town councils, agency heads, or any other imaginable alternatives? No, a conclusion to the contrary seems facially contrary to the separation of powers, disrupting state political structures in a way that the federal government cannot do by simple legislation.
As a caveat, the above analysis hinges on the substance of the relevant state constitution and statutes (and I haven’t yet thoroughly studied South Carolina’s, though I suspect they’re favorable to the points I’m making). The point is, it is not at all clear that Section 1607 should be considered safe from legal challenge — though courts will likely go out of their way to avoid constitutional conflicts or deciding what they may characterize to be “political” questions.
[Cross-posted from Cato's blog.]
If funds provided to any State in any division of this Act are not accepted for
use by the Governor, then acceptance by the State legislature, by means of the
adoption of a concurrent resolution, shall be sufficient to provide funding to
such State.
The question arises, setting aside the relative merits of both sides’ positions, whether the governor (or someone else) could challenge this “alternative certification” provision on constitutional grounds. Here are some initial thoughts:
A state executive (and/or citizens of the given state) could bring colorable claims under the Tenth Amendment (powers not delegated to the federal government are reserved to the States and the people) , state separation of powers (legislature exercising executive power), and the non-delegation doctrine (Congress delegating its legislative authority to non-federal actors). Whether such challenges would be successful is a different matter.
The strongest claim would probably be under a combination of the Tenth Amendment and state law (depending on what the state constitution and statutes says about the federal grant process), especially given that much of the federal money is likely to come with strings/mandates attached — or would otherwise pervert state budgeting processes (as Sanford spelled out in a letter to state legislators). That is, depending on the particular program funds in question, it could well be that the federal government is doing an end-run around the state executive in “commandeering” (a term of art taken from the important Supreme Court case of Printz v. United States) state agencies without the full lawful acquiescence of the state government — i.e., without presentment of a bill for the executive to sign in the normal course of legislative action.
Moreover, I’m not sure how federal legislation could lawfully trump a state constitutional/statutory provision requiring that, say, federal monies only be accepted by state agencies subject to executive certification. If it could, then what’s to stop the federal government from putting in a further alternative provision allowing certification by majority vote of a state supreme court, let alone by town councils, agency heads, or any other imaginable alternatives? No, a conclusion to the contrary seems facially contrary to the separation of powers, disrupting state political structures in a way that the federal government cannot do by simple legislation.
As a caveat, the above analysis hinges on the substance of the relevant state constitution and statutes (and I haven’t yet thoroughly studied South Carolina’s, though I suspect they’re favorable to the points I’m making). The point is, it is not at all clear that Section 1607 should be considered safe from legal challenge — though courts will likely go out of their way to avoid constitutional conflicts or deciding what they may characterize to be “political” questions.
[Cross-posted from Cato's blog.]
When the Government Robs Peter to Pay Paul, It Violates the Constitution
The Supreme Court’s 2005 decision that the government could use its eminent domain power to transfer private property to a different private actor — which promised to use it to generate more tax revenue – touched off a firestorm of criticism and created a movement to strengthen property rights. (For the story behind that case, Kelo v. New London, I recommend Little Pink House: A True Story of Defiance and Courage, for which Cato hosted a book forum in January.) Last Friday, Cato filed a brief urging the Supreme Court to review a decision ratifying a similar, even more blatant, government taking of private property for a non-public use.
In Empress Casino v. Giannoulias, the Illinois Supreme Court upheld a statute transferring money from private riverboat casinos — and at that only the certain politically disfavored ones located in and around Chicago — to private horseracing tracks. The state high court found that the Fifth Amendment’s Takings Clause does not apply to exactions of money from private entities, which ruling the casinos are asking the U.S. Supreme Court to review.
Cato’s brief argues that the Court should grant certiorari for yet another reason: The Illinois statute (which coincidentally appeared in the transcript of the Blagojevich sting) is in clear violation of the Takings Clause’s “public use” requirement, impermissibly eroding protections for private property even under Kelo’s (flawed) standard. The statute does nothing more than rob Peter to pay Paul, a result that cannot be squared with the Fifth Amendment, which permits government takings only for public use, and then only if just compensation is paid. This case instead involves a naked transfer of the casinos’ revenues to the racetracks, with no meaningful restriction on how the racetracks use those funds — and does not remotely resemble any public use approved by the Supreme Court.
Permitting such a statute to stand will only encourage federal, state, and local governments to exact funds from one private actor for the exclusive benefit of another, transgressing the very property rights and economic liberties that inspired the Declaration of Independence and Constitution.
[Cross-posted from Cato's blog.]
In Empress Casino v. Giannoulias, the Illinois Supreme Court upheld a statute transferring money from private riverboat casinos — and at that only the certain politically disfavored ones located in and around Chicago — to private horseracing tracks. The state high court found that the Fifth Amendment’s Takings Clause does not apply to exactions of money from private entities, which ruling the casinos are asking the U.S. Supreme Court to review.
Cato’s brief argues that the Court should grant certiorari for yet another reason: The Illinois statute (which coincidentally appeared in the transcript of the Blagojevich sting) is in clear violation of the Takings Clause’s “public use” requirement, impermissibly eroding protections for private property even under Kelo’s (flawed) standard. The statute does nothing more than rob Peter to pay Paul, a result that cannot be squared with the Fifth Amendment, which permits government takings only for public use, and then only if just compensation is paid. This case instead involves a naked transfer of the casinos’ revenues to the racetracks, with no meaningful restriction on how the racetracks use those funds — and does not remotely resemble any public use approved by the Supreme Court.
Permitting such a statute to stand will only encourage federal, state, and local governments to exact funds from one private actor for the exclusive benefit of another, transgressing the very property rights and economic liberties that inspired the Declaration of Independence and Constitution.
[Cross-posted from Cato's blog.]
Thursday, February 26, 2009
"It Is a Sordid Business, This Divvying Us Up by Race"
Yesterday Cato filed a brief in what will be one of the most talked-about cases in the current Supeme Court term, Ricci v. DeStefano.
In Ricci, the City of New Haven, Connecticut developed an exam for firefighters seeking promotion to command positions. The City went out of its way to ensure that the exam was race-neutral and tested only relevant skills and abilities. When the exam results came down, however, white candidates had done better than their African-American and Hispanic peers. Given the few command positions available and the City's rule that the highest scorers on an exam be promoted first, few minority firefighters would thus have been eligible for promotion. After a series of meetings and political machinations, the City refused to certify the results of the exam and promote anyone. Several of the firefighters who would have been eligible for promotion filed a lawsuit, claiming racial discrimination under Title VII.
The district court, affirmed by the court of appeals, granted summary judgment for the defendants, holding that the City's alleged fear of an adverse impact claim (a different type of racial discrimination claim under Title VII) -- based merely on the fact that the exam results yielded a racial disparity -- was a legitimate reason for its decision not to certify the exams.
Cato's brief, joined by Reason Foundation and the Individual Rights Foundation, points out the absurd incentives at play: if the lower court's ruling stands, employers will throw out the results of exams (or other criteria) that produce racial disparity, even if those exams are race-neutral, entirely valid, and extremely important to the employer and (as in this case) the public.
The Case will be argued April 22.
[Cross-posted at Cato's blog.]
In Ricci, the City of New Haven, Connecticut developed an exam for firefighters seeking promotion to command positions. The City went out of its way to ensure that the exam was race-neutral and tested only relevant skills and abilities. When the exam results came down, however, white candidates had done better than their African-American and Hispanic peers. Given the few command positions available and the City's rule that the highest scorers on an exam be promoted first, few minority firefighters would thus have been eligible for promotion. After a series of meetings and political machinations, the City refused to certify the results of the exam and promote anyone. Several of the firefighters who would have been eligible for promotion filed a lawsuit, claiming racial discrimination under Title VII.
The district court, affirmed by the court of appeals, granted summary judgment for the defendants, holding that the City's alleged fear of an adverse impact claim (a different type of racial discrimination claim under Title VII) -- based merely on the fact that the exam results yielded a racial disparity -- was a legitimate reason for its decision not to certify the exams.
Cato's brief, joined by Reason Foundation and the Individual Rights Foundation, points out the absurd incentives at play: if the lower court's ruling stands, employers will throw out the results of exams (or other criteria) that produce racial disparity, even if those exams are race-neutral, entirely valid, and extremely important to the employer and (as in this case) the public.
The Case will be argued April 22.
[Cross-posted at Cato's blog.]
Wednesday, February 25, 2009
No Taxation Without Representation? Ok, I'll Take the No Taxation
The Senate is taking up, and looks ready to pass, legislation granting the District of Columbia full representation in the House of Representatives. And the bill is co-sponsored by Utah's Orrin Hatch, whose state would also get one additional House member -- but only until 2012, when the new census will again reapportion representatives nationwide.
The problem (setting aside the cheap politics of adding one safe seat for each party) is that the DC Voting Rights Act is facially unconstitutional. The plain text of Article I limits representation in Congress to voters residing in "states" -- a species of jurisdiction which the District of Columbia is not. Now, this simple legal fact does not affect the moral argument that the voices of D.C. residents should resound in Congress no less than those of their fellow citizens of the several states. To remedy this historical accident -- the Founders did not conceive that anyone would live permanently in the federal district, because the government was not supposed to grow this large -- we have two constitutional options:
1) A constitutional amendment -- like the 23rd Amendment, which in 1961 (yes, only that recently!) gave D.C. presidential electors, and without which it would be unconstitutional for D.C. residents to cast votes for president; or
2) Retrocession to Maryland -- akin to the part of the original District that was returned to Virginia, all but the land under the Congress, White House, and certain other federal buildings could rejoin Maryland, and the people living there would then be counted toward that state's congressional delegation (and be represented by Maryland's two senators).
Better yet, if the political rallying cry for the D.C. Voting rights movement is "no taxation without representation," then I suggest that we focus on the first part of the equation and cease federal taxation of D.C. residents. Regardless of the optimal solution, however, the course that Congress has chosen simply will not fly if we take the Constitution seriously.
[Cross-posted at Cato's blog.]
The problem (setting aside the cheap politics of adding one safe seat for each party) is that the DC Voting Rights Act is facially unconstitutional. The plain text of Article I limits representation in Congress to voters residing in "states" -- a species of jurisdiction which the District of Columbia is not. Now, this simple legal fact does not affect the moral argument that the voices of D.C. residents should resound in Congress no less than those of their fellow citizens of the several states. To remedy this historical accident -- the Founders did not conceive that anyone would live permanently in the federal district, because the government was not supposed to grow this large -- we have two constitutional options:
1) A constitutional amendment -- like the 23rd Amendment, which in 1961 (yes, only that recently!) gave D.C. presidential electors, and without which it would be unconstitutional for D.C. residents to cast votes for president; or
2) Retrocession to Maryland -- akin to the part of the original District that was returned to Virginia, all but the land under the Congress, White House, and certain other federal buildings could rejoin Maryland, and the people living there would then be counted toward that state's congressional delegation (and be represented by Maryland's two senators).
Better yet, if the political rallying cry for the D.C. Voting rights movement is "no taxation without representation," then I suggest that we focus on the first part of the equation and cease federal taxation of D.C. residents. Regardless of the optimal solution, however, the course that Congress has chosen simply will not fly if we take the Constitution seriously.
[Cross-posted at Cato's blog.]
Tuesday, February 3, 2009
As the Supreme Court takes a winter break and the Obama team gets settled in at the DOJ, I’ll be on the road giving speeches and debating several of the most pertinent legal topics facing the incoming administration. Here’s the schedule for my upcoming trip to California and Hawaii, which starts tomorrow. All events are open to the public (though the non-law school events typically charge admission):
[Cross-posted at Cato's blog.]
- University of San Diego Law School (Warren Hall Rm. 133), February 4 at 12pm — “Judicial Nominations: What’s Gone Wrong and Can It Be Fixed?”
- University of San Francisco Law School (Kendrick Hall Rm. 101), February 5 at 12:30pm – ”What Can We Expect from the Obama Administration on Judicial Appointments?”
- North Coast Federalist Society Lawyers Chapter (904 MacDonald Ave., Santa Rosa), February 5 at 7pm – “Libel Tourism: The Next Front in the War on Terror”
- Princeton Club of N. California (Gordon & Rees, Embarcadero Ctr., SF), February 6 at 12pm — “How I Spent My Summer Vacation: Rule of Law in Iraq”
- Stanford University Law School (Rm. 95), February 9 at 12:45pm — “What Role Should Foreign Law Play in U.S. Constitutional Interpretation?”
- SF Federalist Society Lawyers Chapter (Harrington’s, 245 Front St.), February 9 at 5:45 pm– ”What Role Should Foreign Law Play in U.S. Constitutional Interpretation?”
- Santa Clara University Law School (Bannan Hall), February 10 at 11:45am — “What Can We Expect from the Obama Administration on Judicial Appointments?”
- University of Hawaii Law School (Rm. 1 or 2), February 12, 2009 at 12:45pm – “Race-Based Government in Paradise? Hawaii v. OHA“
[Cross-posted at Cato's blog.]
Thursday, January 29, 2009
"Fair Pay Act" Will Only Further Damage Economy
When President Obama signs the Lilly Ledbetter Fair Pay Act, he will be fulfilling a campaign promise but undermining the American economy. This bill is not about sex discrimination — paying men and women different wages for the same job has been illegal for nearly half a century — but rather about statutes of limitations. How long after an incident of discrimination should someone be allowed to sue? The Supreme Court ruled that an employee has six months after a company’s initial pay decision to file a discrimination claim. While this was a fair reading of existing law, critics legitimately questioned whether the law itself unfairly foreclosed redress for a decision made long before an employee discovered the pay discrimination. They correctly went to Congress to fix the law, instead of demanding that courts rewrite it themselves.
But the solution is not to eliminate statutes of limitations altogether, which is essentially what the Fair Pay Act does when it restarts the litigation clock with every new paycheck. No, the proper solution is simply to codify the common law “discovery rule” for these types of cases, making clear that the statute of limitations begins to run only when the employee discovers the wrong that had been committed against her way back when — a compromise that was proposed by Senator Kay Bailey Hutchison but rejected by the Senate. Instead, the new law introduces major uncertainty into business operations and gives every employee a Sword of Damocles to dangle over her employer’s balance sheet. Companies will all of a sudden be subject to decades-old discrimination claims they have no ability to defend.
At bottom, the Lilly Ledbetter Fair Pay Act takes a bludgeon to an already reeling economy, acting as a stimulus only for the lawyers bringing and defending the coming avalanche of lawsuits.
[Cross-posted from Cato's blog.]
But the solution is not to eliminate statutes of limitations altogether, which is essentially what the Fair Pay Act does when it restarts the litigation clock with every new paycheck. No, the proper solution is simply to codify the common law “discovery rule” for these types of cases, making clear that the statute of limitations begins to run only when the employee discovers the wrong that had been committed against her way back when — a compromise that was proposed by Senator Kay Bailey Hutchison but rejected by the Senate. Instead, the new law introduces major uncertainty into business operations and gives every employee a Sword of Damocles to dangle over her employer’s balance sheet. Companies will all of a sudden be subject to decades-old discrimination claims they have no ability to defend.
At bottom, the Lilly Ledbetter Fair Pay Act takes a bludgeon to an already reeling economy, acting as a stimulus only for the lawyers bringing and defending the coming avalanche of lawsuits.
[Cross-posted from Cato's blog.]
Tuesday, January 27, 2009
Little Hope for Judges Until the Judiciary Stops Legislating
In a recent editorial, the Washington Post issued a “hope for improvements” from the vitriol, partisan rancor, and blocking of qualified candidates that has increasingly dominated nominations to the federal bench. Don’t hold your breath; this is one hope that will not inspire change during the course of the Obama administration.
No, the poisoning of the judicial appointment process won’t end till courts stop acting as policymakers, finding powers in the Constitution that aren’t there and limiting rights that are. Thus the problem with judicial nominations has less to do with cynical politicians and embittered ideologues than it does with a ”living Constitution” that has been stretched over the years beyond any Founder’s recognition. In failing to enforce the constraints on federal powers — and to protect the rights retained by the people under the Ninth Amendment (along with those covered by the Fifth Amendment’s takings clause and the Fourteenth Amendment’s privileges or immunities clause, to name but the most maligned) – what Alexander Hamilton called the “least dangerous branch” has devolved into a disfunctional policymaking body that understandably attracts political passions. While various parties wrestle to direct the government’s expanded powers in their favor, as my boss Roger Pilon wrote in 2002, “everything is politics, nothing is law.”
Until we reset the balances of power among the branches and the government again abides by its constitutional parameters, I’m afraid that the partisanship and politics of personal destruction surrounding judicial nominations will continue unabated – to the detriment of the nominees, the judiciary, and the country. When so much is at stake, it can be no other way. (You might as well ask elections to be less partisan or otherwise heated.)
But the Post’s editorial is on the right track about one thing: the failure of Republicans to define the word “extremist” when speaking of likely Obama judicial nominees. Democrats and their hard Left brethren were so unsuccesful in blocking John Roberts and Samuel Alito in large part because they had cried bigot about practically every previous lower-court nominee. Instead, let’s define what is unacceptable practically and establish an objective standard for judicial nominees from the new administration. Then it will only be a matter of measuring the degree of support or opposition when analyzing each one’s record. I suggest the following: “An extremist judge is someone who puts policy views over the text of the law as written, someone whose record shows a propensity for rewriting statutes or the Constitution.”
If you don’t like the result you get when following the law or the Constitution, change the law or amend the Constitution. As Oliver Wendell Holmes said when asked whether he would be doing justice on the Supreme Court, “This is a court of law, young man, not a court of justice.”
[Cross-posted at Cato's blog.]
No, the poisoning of the judicial appointment process won’t end till courts stop acting as policymakers, finding powers in the Constitution that aren’t there and limiting rights that are. Thus the problem with judicial nominations has less to do with cynical politicians and embittered ideologues than it does with a ”living Constitution” that has been stretched over the years beyond any Founder’s recognition. In failing to enforce the constraints on federal powers — and to protect the rights retained by the people under the Ninth Amendment (along with those covered by the Fifth Amendment’s takings clause and the Fourteenth Amendment’s privileges or immunities clause, to name but the most maligned) – what Alexander Hamilton called the “least dangerous branch” has devolved into a disfunctional policymaking body that understandably attracts political passions. While various parties wrestle to direct the government’s expanded powers in their favor, as my boss Roger Pilon wrote in 2002, “everything is politics, nothing is law.”
Until we reset the balances of power among the branches and the government again abides by its constitutional parameters, I’m afraid that the partisanship and politics of personal destruction surrounding judicial nominations will continue unabated – to the detriment of the nominees, the judiciary, and the country. When so much is at stake, it can be no other way. (You might as well ask elections to be less partisan or otherwise heated.)
But the Post’s editorial is on the right track about one thing: the failure of Republicans to define the word “extremist” when speaking of likely Obama judicial nominees. Democrats and their hard Left brethren were so unsuccesful in blocking John Roberts and Samuel Alito in large part because they had cried bigot about practically every previous lower-court nominee. Instead, let’s define what is unacceptable practically and establish an objective standard for judicial nominees from the new administration. Then it will only be a matter of measuring the degree of support or opposition when analyzing each one’s record. I suggest the following: “An extremist judge is someone who puts policy views over the text of the law as written, someone whose record shows a propensity for rewriting statutes or the Constitution.”
If you don’t like the result you get when following the law or the Constitution, change the law or amend the Constitution. As Oliver Wendell Holmes said when asked whether he would be doing justice on the Supreme Court, “This is a court of law, young man, not a court of justice.”
[Cross-posted at Cato's blog.]
Thursday, January 15, 2009
Our Latest Salvo in the Battle Over Campaign Finance Reform
Yesterday I filed an amicus brief on Cato's behalf in Citizens United v. Federal Election Commission, an election regulation/campaign finance case that will be argued before the Supreme Court in March or April. Testing the bounds of the Court’s landmark decision in Wisconsin Right to Life II (WRTL II), the Federal Election Commission recently sought to apply certain prohibitions and disclosure requirements of the Bipartisan Campaign Reform Act of 2002 to advocacy group Citizens United’s political documentary, Hillary: The Movie, and to the group’s broadcast advertisements for the film. Though the FEC conceded that the ads, at least, are not the functional equivalent of express campaign advocacy, as defined in WRTL II, it nevertheless determined that Citizens United must disclose the identities of its contributors.
Cato’s brief argues that BCRA violates the First Amendment freedom of association belonging to those contributors, which freedom includes the right to associate anonymously and to control the group’s character and message free from government intervention. For groups engaging in political speech, compelled disclosure of contributors’ identities infringes their freedom of private expressive association, a burden often no less severe than direct restraint of the group’s speech. This type of government action must be subject to strict constitutional scrutiny—a level of scrutiny that in practice is almost always fatal. The district court failed to afford sufficient value to associational rights and so failed to scrutinize appropriately BCRA’s unjustified infringement on those rights.
Cato’s brief argues that BCRA violates the First Amendment freedom of association belonging to those contributors, which freedom includes the right to associate anonymously and to control the group’s character and message free from government intervention. For groups engaging in political speech, compelled disclosure of contributors’ identities infringes their freedom of private expressive association, a burden often no less severe than direct restraint of the group’s speech. This type of government action must be subject to strict constitutional scrutiny—a level of scrutiny that in practice is almost always fatal. The district court failed to afford sufficient value to associational rights and so failed to scrutinize appropriately BCRA’s unjustified infringement on those rights.
Monday, January 12, 2009
Supreme Court Makes It a Little Interesting
The common refrain this Supreme Court term is that, after several years of blockbuster cases—race-based school assignment, partial-birth abortion, the rights of Guantánamo detainees, the D.C. gun ban, etc., etc.—this year the Court is giving the front pages a break. Indeed, as we celebrated the advent of 2009, the only cases guaranteed to make it into the Cato Supreme Court Review were a drug regulation case (Wyeth v. Levine) and one involving the detention of a civilian in the United States as an enemy combatant (Al-Marri v. Pucciarelli). Almost all the cases garnering media and scholarly attention would have been after-thoughts in previous years.
On Friday, however, as it rounded out its docket for the term (no more than a handful more will be added to the list of cases to be argued and decided before the Court recesses in June), the Court gave us four fascinating cases to chew on:
Northwest Austin Municipal Utility District Number One (“NAMUDNO”) v. Mukasey
This is a challenge to the requirement of section 5 of the Voting Rights Act that certain state and local governments, mostly but not entirely in the South, obtain “preclearance” before making any changes affecting voting. A small (3,500 residents) utility district in Austin, Texas, argues that it has never been accused of voting discrimination or other irregularities and should not have to seek federal permission to, for example, move the location of a polling place or coordinate voting for its board with other county or state elections. You may recall that the latest extension of the VRA, in 2006, did not pass without some controversy. Indeed, in our federal system, should certain jurisdictions still be under the Justice Department’s thumb over 40 years after the demise of Jim Crow (and to this extent of micromanagement)?
Ricci v. DeStefano
A group of firefighters (19 white, 1 Hispanic) allege that New Haven city officials racially discriminated against them when they refused to certify the results of two race-neutral promotional exams that yielded racially disproportionate results (i.e., a much higher percentage of whites and Hispanics qualified for promotion than did blacks). As offensive as the facts of the case are, the way that the Second Circuit—a panel including oft-mentioned Supreme Court contender Sonia Sotomayor—summarily dismissed the petitioners’ appeal is even more disconcerting. When the full court voted 7-6 not to rehear the case en banc, Judge José Cabranes (a Clinton appointee) excoriated his colleagues, concluding that “[t]his perfunctory disposition rests uneasily with the weighty issues presented by this appeal.” I won’t get into the weeds of legal analysis here, but Ed Whelan has two excellent posts discussing the Second Circuit shenanigans over at NRO and Stuart Taylor last month wrote a typically hard-hitting piece on it for the National Journal. But again, however the Supreme Court decides this one, it has already provided a potent line of attack on Judge Sotomayor when the next vacancy arises on the high court.
Republic of Iraq v. Beaty
This case asks the simple question of whether U.S courts have jurisdiction over claims regarding misdeeds committed by the Saddam Hussein regime—or whether today’s Iraqi government can assert sovereign immunity. This simple question actually involves the interplay of a host of legislative and executive action that the Court will have to wade through. Beaty joins the Eurodif (international trade, about which I wrote here) and Elahi (treaty enforcement) cases as this year’s leading contributions to the Court’s international law jurisprudence.
Horne v. Flores
Taking up a complicated conflict between the No Child Left Behind Act and earlier legislation, this is the term’s leading education case. The main issue is whether a state, in this case Arizona, which complies with NCLB on English language instruction can still be violating the funding requirements for such instruction imposed by the Equal Education Opportunity Act of 1974. The Ninth Circuit declined to modify an eight-year-old injunction requiring Arizona to spend millions on this instruction and imposing millions in fines. It’s a highly technical case but one with significant ramifications for a key part of President Bush’s domestic policy legacy.
Despite these four grants, however, it is still safe to say that Court shied away from many, many cases that should interest readers of this blog—not least the patent/abuse of state sovereign immunity case called BPMC v. California, which I had earlier urged the Court to accept for review. I will be commenting further at least on NAMUDNO and Ricci when the Court hears argument and decides them.
[Cross-posted at Cato's blog.]
On Friday, however, as it rounded out its docket for the term (no more than a handful more will be added to the list of cases to be argued and decided before the Court recesses in June), the Court gave us four fascinating cases to chew on:
Northwest Austin Municipal Utility District Number One (“NAMUDNO”) v. Mukasey
This is a challenge to the requirement of section 5 of the Voting Rights Act that certain state and local governments, mostly but not entirely in the South, obtain “preclearance” before making any changes affecting voting. A small (3,500 residents) utility district in Austin, Texas, argues that it has never been accused of voting discrimination or other irregularities and should not have to seek federal permission to, for example, move the location of a polling place or coordinate voting for its board with other county or state elections. You may recall that the latest extension of the VRA, in 2006, did not pass without some controversy. Indeed, in our federal system, should certain jurisdictions still be under the Justice Department’s thumb over 40 years after the demise of Jim Crow (and to this extent of micromanagement)?
Ricci v. DeStefano
A group of firefighters (19 white, 1 Hispanic) allege that New Haven city officials racially discriminated against them when they refused to certify the results of two race-neutral promotional exams that yielded racially disproportionate results (i.e., a much higher percentage of whites and Hispanics qualified for promotion than did blacks). As offensive as the facts of the case are, the way that the Second Circuit—a panel including oft-mentioned Supreme Court contender Sonia Sotomayor—summarily dismissed the petitioners’ appeal is even more disconcerting. When the full court voted 7-6 not to rehear the case en banc, Judge José Cabranes (a Clinton appointee) excoriated his colleagues, concluding that “[t]his perfunctory disposition rests uneasily with the weighty issues presented by this appeal.” I won’t get into the weeds of legal analysis here, but Ed Whelan has two excellent posts discussing the Second Circuit shenanigans over at NRO and Stuart Taylor last month wrote a typically hard-hitting piece on it for the National Journal. But again, however the Supreme Court decides this one, it has already provided a potent line of attack on Judge Sotomayor when the next vacancy arises on the high court.
Republic of Iraq v. Beaty
This case asks the simple question of whether U.S courts have jurisdiction over claims regarding misdeeds committed by the Saddam Hussein regime—or whether today’s Iraqi government can assert sovereign immunity. This simple question actually involves the interplay of a host of legislative and executive action that the Court will have to wade through. Beaty joins the Eurodif (international trade, about which I wrote here) and Elahi (treaty enforcement) cases as this year’s leading contributions to the Court’s international law jurisprudence.
Horne v. Flores
Taking up a complicated conflict between the No Child Left Behind Act and earlier legislation, this is the term’s leading education case. The main issue is whether a state, in this case Arizona, which complies with NCLB on English language instruction can still be violating the funding requirements for such instruction imposed by the Equal Education Opportunity Act of 1974. The Ninth Circuit declined to modify an eight-year-old injunction requiring Arizona to spend millions on this instruction and imposing millions in fines. It’s a highly technical case but one with significant ramifications for a key part of President Bush’s domestic policy legacy.
Despite these four grants, however, it is still safe to say that Court shied away from many, many cases that should interest readers of this blog—not least the patent/abuse of state sovereign immunity case called BPMC v. California, which I had earlier urged the Court to accept for review. I will be commenting further at least on NAMUDNO and Ricci when the Court hears argument and decides them.
[Cross-posted at Cato's blog.]
Monday, January 5, 2009
No Supreme Court Vacancies, But a New "Tenth Justice"
The selection of Harvard Law School Dean Elana Kagan to be the next solicitor general (and the first woman nominated for a position known as the “Tenth Justice”) is not at all surprising. While President-elect Obama is under great pressure to nominate more women for cabinet and judicial positions, in Kagan and former Stanford Law School Dean Kathleen Sullivan he had two highly credentialed candidates who would have been front-runners regardless of their gender. Two things we know about Kagan is that she is very smart – even before the Supreme Court clerkship and record of scholarship, she won a Sachs Scholarship, sometimes called a “Princeton Rhodes” – and has done a fabulous job as dean (including poaching star professors from law schools across the country). While the White House and Attorney General will, of course, be setting the administration’s legal policy, we can expect Kagan to defend those policy positions ferociously and expertly. Whether those efforts will coincide with a defense of the individual liberty and limited government encapsulated in the Constitution remains to be seen.
[Cross-posted at Cato's blog.]
[Cross-posted at Cato's blog.]
Wednesday, December 17, 2008
Emoluments! Get Yer Red Hot Emoluments Here!
You never know where carrying around a pocket Constitution will take you. A few weeks ago, while attending the Federalist Society's annual lawyers convention, I got to chatting with UCLA law professor (and former member of the Cato Supreme Court Review editorial board) Eugene Volokh about something that a commenter to his well-known Volokh Conspiracy blog had queried: might Hillary Clinton, then just-announced as "on track" to become the next Secretary of State, be constitutionally disqualified from that job? I quickly turned to Article I, section 6, clause 2 of my handy Cato pocket Constitution (I carry one in every suit jacket and can attest that they make great stocking-stuffers) to look at the source of the problem: the Emoluments Clause. Indeed, it seemed that Sen. Clinton's appointment -- or that of any member of Congress whose term coincides with a cabinet pay raise, nothing against her in particular -- would violate the clear constitutional text.
I won't rehash the arguments here, especially because both Eugene and then I myself (and many others, including the venerable Supreme-Court-justice-in-waiting-of-Obama's-first-male-appointment Laurence Tribe) blogged about it. I thought that would be the end of it, but they keep pulling me back in. Today, for example, I have an elaborated version of my earlier blog post in the American Spectator. And tomorrow I'll be appearing at a Judicial Watch forum discussing the issue along with John O'Connor, author of "The Emoluments Clause: An Anti-Federalist Intruder in a Federalist Constitution." (The panel is at the National Press Club, 529 14th St. NW in Washington, runs 1:30 - 3:00pm, and open to the public.)
Interestingly, though Congress last week passed a "Saxbe Fix" for Sen. Clinton, we now have another emoluments problem, with Sen. Ken Salazar (D-CO), whom President-elect Obama has just nominated to be his Interior Secretary. And leaving aside the constitutional issue, that makes four senatorial vacancies (and two gubernatorial vacancies) created by the victory of the Obama-Biden ticket, including, of course, the Rod Blagojevich mess in Illinois. That has to be some sort of record, but I fear it's the only way the incoming administration will reduce the size of government (and only temporarily at that).
[Cross-posted at Cato's blog.]
I won't rehash the arguments here, especially because both Eugene and then I myself (and many others, including the venerable Supreme-Court-justice-in-waiting-of-Obama's-first-male-appointment Laurence Tribe) blogged about it. I thought that would be the end of it, but they keep pulling me back in. Today, for example, I have an elaborated version of my earlier blog post in the American Spectator. And tomorrow I'll be appearing at a Judicial Watch forum discussing the issue along with John O'Connor, author of "The Emoluments Clause: An Anti-Federalist Intruder in a Federalist Constitution." (The panel is at the National Press Club, 529 14th St. NW in Washington, runs 1:30 - 3:00pm, and open to the public.)
Interestingly, though Congress last week passed a "Saxbe Fix" for Sen. Clinton, we now have another emoluments problem, with Sen. Ken Salazar (D-CO), whom President-elect Obama has just nominated to be his Interior Secretary. And leaving aside the constitutional issue, that makes four senatorial vacancies (and two gubernatorial vacancies) created by the victory of the Obama-Biden ticket, including, of course, the Rod Blagojevich mess in Illinois. That has to be some sort of record, but I fear it's the only way the incoming administration will reduce the size of government (and only temporarily at that).
[Cross-posted at Cato's blog.]
Monday, December 15, 2008
Tis Better to Be Regulated by One Gorilla Than by Fifty Monkeys
When Congress lawfully exercises its constitutional powers to regulate a particular aspect of interstate commerce, states cannot also regulate in that area. This anodyne principle, arising from the Constitution’s Supremacy Clause, is known as preemption. Today, in its last public action of 2008 and its first 5-4 decision of the term, the Supreme Court violated that principle in a case involving cigarette labeling, Altria v. Good. The Court erroneously determined that the Federal Cigarette Labeling and Advertising Act does not preempt a suit for fraudulent labeling under state law.
While the Act expressly covers labeling and advertising “with respect to any relationship between smoking and health,” Justice Stevens’s opinion somehow finds that it does not cover smoking- and health-related suits predicated on the general duty not to deceive. (The Court was not asked to address, and did not address, the threshold question of whether the Act infringes on the free speech rights of advertisers.)
As Justice Thomas points out in dissent, the majority has created an unworkable rule that depends on how one frames “the legal duty that is the predicate of the common-law damages action” rather than the text of the federal statute at issue. Thus, not only will cigarette manufacturers who dutifully comply with federal law now face countless suits under countless state laws, but their fates in those suits will hinge on the creativity of counsel and the gullibility of judges. And of course, this type of reasoning can easily be extended to circumvent preemption in other regulatory fields, including this term’s eagerly awaited FDA case, Wyeth v. Levine.
[Cross-posted at Cato's blog.]
While the Act expressly covers labeling and advertising “with respect to any relationship between smoking and health,” Justice Stevens’s opinion somehow finds that it does not cover smoking- and health-related suits predicated on the general duty not to deceive. (The Court was not asked to address, and did not address, the threshold question of whether the Act infringes on the free speech rights of advertisers.)
As Justice Thomas points out in dissent, the majority has created an unworkable rule that depends on how one frames “the legal duty that is the predicate of the common-law damages action” rather than the text of the federal statute at issue. Thus, not only will cigarette manufacturers who dutifully comply with federal law now face countless suits under countless state laws, but their fates in those suits will hinge on the creativity of counsel and the gullibility of judges. And of course, this type of reasoning can easily be extended to circumvent preemption in other regulatory fields, including this term’s eagerly awaited FDA case, Wyeth v. Levine.
[Cross-posted at Cato's blog.]
Friday, December 12, 2008
Race-Based Government in Paradise?
The current Supreme Court term is a bit of a letdown for those of us who track and comment on the machinations of One First Street; a steady diet of technical statutory interpretation questions without many “meaty” constitutional issues. Well, yesterday Cato filed its first amicus brief of the term in a case that itself is fairly sui generis — the issue is whether Hawaii can sell certain state lands without getting approval from a weird racialist commission called the Office of Hawaiian Affairs (OHA). But the case has broader ramifications for the Court’s equal protection jurisprudence. Moreover, as Cato’s resident Hawaii expert (we have a low bar here for that niche), I can say that the case threatens to set a terrible precedent for a state that has otherwise been a model of racial harmony.
In the 2000 case of Rice v. Cayetano, the Supreme Court held that a race-based scheme allowing only statutorily defined “Hawaiians” to vote for the OHA’s trustees was unconstitutional. Despite Rice, and despite Justice John Marshall Harlan’s dissenting statement in Plessy v. Ferguson 112 years ago that “[o]ur Constitution is color-blind, and neither knows nor tolerates classes among citizens,” the OHA continues to view Hawaiian citizens through racial lenses. This practice has spawned numerous lawsuits, including the present legal crisis in which the state’s sovereign authority to manage its land for the good of all of its citizens has been replaced with a court-imposed duty to hold the land for the benefit of one racial class.
Specifically, the Hawaii Supreme Court blocked the sale of certain state lands based on a mistaken (and race-based) interpretation of a joint resolution that Congress passed in 1993 to apologize to Hawaiian people for the overthrow of the Kingdom of Hawaii — which was itself based on a slanted view of history. Cato’s brief, joining with the Pacific Legal Foundation and the Center for Equal Opportunity, argues that race-based government is impermissible under the Fourteenth Amendment’s Equal Protection Clause, that the Constitution’s Indian Commerce Clause does not provide a basis for laws that grant preferences to “Native Hawaiians,” and that the Apology Resolution neither amended nor rescinded the federal laws that gave the State of Hawaii full control over the disputed land.
For other filings in the case, see here. Argument is scheduled for February 25.
[Cross-posted at Cato's blog.]
In the 2000 case of Rice v. Cayetano, the Supreme Court held that a race-based scheme allowing only statutorily defined “Hawaiians” to vote for the OHA’s trustees was unconstitutional. Despite Rice, and despite Justice John Marshall Harlan’s dissenting statement in Plessy v. Ferguson 112 years ago that “[o]ur Constitution is color-blind, and neither knows nor tolerates classes among citizens,” the OHA continues to view Hawaiian citizens through racial lenses. This practice has spawned numerous lawsuits, including the present legal crisis in which the state’s sovereign authority to manage its land for the good of all of its citizens has been replaced with a court-imposed duty to hold the land for the benefit of one racial class.
Specifically, the Hawaii Supreme Court blocked the sale of certain state lands based on a mistaken (and race-based) interpretation of a joint resolution that Congress passed in 1993 to apologize to Hawaiian people for the overthrow of the Kingdom of Hawaii — which was itself based on a slanted view of history. Cato’s brief, joining with the Pacific Legal Foundation and the Center for Equal Opportunity, argues that race-based government is impermissible under the Fourteenth Amendment’s Equal Protection Clause, that the Constitution’s Indian Commerce Clause does not provide a basis for laws that grant preferences to “Native Hawaiians,” and that the Apology Resolution neither amended nor rescinded the federal laws that gave the State of Hawaii full control over the disputed land.
For other filings in the case, see here. Argument is scheduled for February 25.
[Cross-posted at Cato's blog.]
Wednesday, December 3, 2008
Woe Canada!
In these heady days of hope, change, puppies, and rainbows, not too many people are paying attention to the political tableau playing out in our northern neighbor. Those wags who do remember that Canada had its own election in October -- resulting in the reelection of Prime Minister Stephen Harper -- quip that, come January, the United States will have the most liberal government in North America.
Not so fast. It turns out that while Harper's Conservatives did strengthen their minority government -- that is, they won by far the largest plurality in the nation's multi-party parliament, increasing their previous result -- by definition a minority government can be outvoted if other parties gang up on them. Here's the math: Canada's House of Commons has 308 seats (meaning 155 constitutes a majority), of which the Conservatives have 143, the Liberals 77, the Bloc Quebecois (whose sole raison d'etre is that Quebec should be a separate country) 49, New Democratic Party (socialists) 37, and unaffiliated independents 2. And here's the short version of what's gone down to upset the applecart: In a new fiscal program unveiled last week, PM Harper announced, among other things, cuts to public funding of political parties and restrictions on public sector unions' right to strike. The opposition would have none of this and quickly arranged what in other circumstances might be a called a palace coup: Liberal leader Stephane Dion (already a lame duck after leading his party to its worst showing ever), citing the Conservatives' failure to prepare for a recession (nevermind that Canada's economy grew in the third quarter, and by more than it has all year), agreed on a tripartite deal with the NDP and Bloc that would oust the Tory government.
The biggest news here is that, for the first time ever, a separatist party will be a formal part of the government -- the king-makers, no less. The federalism/Quebec "question" is, shall we say, a delicate one in Canada, so this is a pretty big deal.
While the Bloc will not have any ministers (the Liberals and NDP are to divvy up cabinet spots in a 3:1 ratio), it will, per the formal text of the deal, be part of a "permanent consultation mechanism." As blogger and National Post columnist Ezra Levant put it:
Indeed, those demands were many: an immediate $1 billion transfer to Quebec, along with a slew of patronage posts, including Senate seats (the Prime Minister appoints senators, and there are currently 18 vacancies). Apparently, Elizabeth May, leader of the Green Party (which won no seats in parliament but captured 6.8% of the vote) was also offered a Senate seat.
And, as part of a "Policy Accord to Address the Present Economic Crisis," the new coalition proposes such "stimulus" measures as "support for culture, including the cancellation of budget cuts announced by the Conservative government" and "support for Canadian Wheat Board and Supply Management." And then came word of a (further) $30 billion national "bailout," as yet undefined. In other words, a mish-mash of left-wing policy ideas dressed up as emergency measures.
OK, so now what happens? Well, according to parliamentary procedure, Dion, as Leader of Her Majesty's Loyal Opposition, will call for a "vote of non-confidence" in the government. Assuming the Liberal-NDP-Bloc coalition holds together -- Canada's mainstream media, displaying the same bias as America's, calls this the "Liberal-NDP" coalition so average Canadians don't think about the separatists -- the prime minister will have to resign and Governor-General Michaelle Jean (the titular head of state, filling the role the British monarch used to, in this case appointed by the Queen on former Liberal PM Paul Martin's recommendation) can either invite Dion to form a government or call new elections. Harper plans to head off this turn of events by asking Jean to "prorogue" (suspend) the parliament until January, by which point the Conservatives will have plead their case to the people and thereby either win a confidence motion or force new elections.
The bottom line: Canada is having a bit of a constitutional crisis, the most likely result of which is an unstable governing coalition composed of liberals, socialists, and socialist separatists. In the meantime, the Toronto Stock Exchange has tanked. It almost makes card check, the Fairness Doctrine, and the auto bailout look good by comparison.
[Cross-posted at Cato's blog.]
Not so fast. It turns out that while Harper's Conservatives did strengthen their minority government -- that is, they won by far the largest plurality in the nation's multi-party parliament, increasing their previous result -- by definition a minority government can be outvoted if other parties gang up on them. Here's the math: Canada's House of Commons has 308 seats (meaning 155 constitutes a majority), of which the Conservatives have 143, the Liberals 77, the Bloc Quebecois (whose sole raison d'etre is that Quebec should be a separate country) 49, New Democratic Party (socialists) 37, and unaffiliated independents 2. And here's the short version of what's gone down to upset the applecart: In a new fiscal program unveiled last week, PM Harper announced, among other things, cuts to public funding of political parties and restrictions on public sector unions' right to strike. The opposition would have none of this and quickly arranged what in other circumstances might be a called a palace coup: Liberal leader Stephane Dion (already a lame duck after leading his party to its worst showing ever), citing the Conservatives' failure to prepare for a recession (nevermind that Canada's economy grew in the third quarter, and by more than it has all year), agreed on a tripartite deal with the NDP and Bloc that would oust the Tory government.
The biggest news here is that, for the first time ever, a separatist party will be a formal part of the government -- the king-makers, no less. The federalism/Quebec "question" is, shall we say, a delicate one in Canada, so this is a pretty big deal.
While the Bloc will not have any ministers (the Liberals and NDP are to divvy up cabinet spots in a 3:1 ratio), it will, per the formal text of the deal, be part of a "permanent consultation mechanism." As blogger and National Post columnist Ezra Levant put it:
Well, we already have one of those – it’s called Parliament. But Parliament is a
little too public for this coalition – you know, with nosy Canadians watching
how deals are made. This consultation mechanism will be private – a way for the
separatists to make their demands in secret, and for Prime Minister Stephane
Dion to meet those demands in secret.
Indeed, those demands were many: an immediate $1 billion transfer to Quebec, along with a slew of patronage posts, including Senate seats (the Prime Minister appoints senators, and there are currently 18 vacancies). Apparently, Elizabeth May, leader of the Green Party (which won no seats in parliament but captured 6.8% of the vote) was also offered a Senate seat.
And, as part of a "Policy Accord to Address the Present Economic Crisis," the new coalition proposes such "stimulus" measures as "support for culture, including the cancellation of budget cuts announced by the Conservative government" and "support for Canadian Wheat Board and Supply Management." And then came word of a (further) $30 billion national "bailout," as yet undefined. In other words, a mish-mash of left-wing policy ideas dressed up as emergency measures.
OK, so now what happens? Well, according to parliamentary procedure, Dion, as Leader of Her Majesty's Loyal Opposition, will call for a "vote of non-confidence" in the government. Assuming the Liberal-NDP-Bloc coalition holds together -- Canada's mainstream media, displaying the same bias as America's, calls this the "Liberal-NDP" coalition so average Canadians don't think about the separatists -- the prime minister will have to resign and Governor-General Michaelle Jean (the titular head of state, filling the role the British monarch used to, in this case appointed by the Queen on former Liberal PM Paul Martin's recommendation) can either invite Dion to form a government or call new elections. Harper plans to head off this turn of events by asking Jean to "prorogue" (suspend) the parliament until January, by which point the Conservatives will have plead their case to the people and thereby either win a confidence motion or force new elections.
The bottom line: Canada is having a bit of a constitutional crisis, the most likely result of which is an unstable governing coalition composed of liberals, socialists, and socialist separatists. In the meantime, the Toronto Stock Exchange has tanked. It almost makes card check, the Fairness Doctrine, and the auto bailout look good by comparison.
[Cross-posted at Cato's blog.]
Tuesday, November 25, 2008
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:
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.]
No Senator or Representative shall, during the Time for which he was elected, beThat 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.)
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…
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.]
Wednesday, November 19, 2008
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.
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.
Thursday, November 6, 2008
Whither Fusionism?
One of the victims of the Bush presidency, along with limited government and the Republican Party, has been “fusionism,” the idea that conservatives and libertarians ought to come together to oppose the forces of socialism (and The Left generally). Indeed, this Tuesday’s election probably saw the highest-ever percentage of libertarians — depending on how you count them – vote for the Democratic presidential candidate (at least in the modern era, with the possible exception of the Nixon years). This despite that Democratic candidate being commonly seen as the most statist major-party candidate in history.
Cato adjunct scholar Ilya Somin who blogs at the Volokh Conspiracy and in his day job is a law professor at George Mason (currently visiting at Penn) — Ilya being a popular name among libertarian legal community – today puts up a smart post on the state of the erstwhile libertarian-conservative. Here’s a snippet:
Indeed, if conservatives choose some version of the Huckabee-Palin route, fusionism is dead — and so, might I add presumptuously, is the Republican Party. That just ain’t where the majority of the nation is, or where it’s heading (though, as Ilya says, that direction may be politically advantageous in certain parts of the country under certain circumstances).
But this type of discussion may be beside the point; libertarian-conservative (in the sense of socially conservative, economically squishy) fusionism may have run its course, a relic of the Cold War. The new fusionism may well be fiscally conservative and socially tolerant (not necessarily liberal, just not wanting government to do anything about the way people live their private lives), including folks who might call themselves conservative cosmopolitans, crunchy cons, South Park conservatives, or indeed libertarians. Or they might eschew labels altogether but are sick of the rot coming from (or to) Washington. In other words: Purple America,
[Cross-posted at Cato's blog.]
Cato adjunct scholar Ilya Somin who blogs at the Volokh Conspiracy and in his day job is a law professor at George Mason (currently visiting at Penn) — Ilya being a popular name among libertarian legal community – today puts up a smart post on the state of the erstwhile libertarian-conservative. Here’s a snippet:
Obviously, a lot depends on what conservatives decide to do. If they choose the
pro-limited government position advocated by Representative Jeff Flake and some
other younger House Republicans, there will be lots of room for cooperation with
libertarians. I am happy to see that Flake has denounced “the ill-fitting and
unworkable big-government conservatism that defined the Bush administration.”
Conservatives could, however, adopt the combination of economic populism and
social conservatism advocated by Mike Huckabee and others. It is even
possible that the latter path will be more politically advantageous, at least in
the short term.
Indeed, if conservatives choose some version of the Huckabee-Palin route, fusionism is dead — and so, might I add presumptuously, is the Republican Party. That just ain’t where the majority of the nation is, or where it’s heading (though, as Ilya says, that direction may be politically advantageous in certain parts of the country under certain circumstances).
But this type of discussion may be beside the point; libertarian-conservative (in the sense of socially conservative, economically squishy) fusionism may have run its course, a relic of the Cold War. The new fusionism may well be fiscally conservative and socially tolerant (not necessarily liberal, just not wanting government to do anything about the way people live their private lives), including folks who might call themselves conservative cosmopolitans, crunchy cons, South Park conservatives, or indeed libertarians. Or they might eschew labels altogether but are sick of the rot coming from (or to) Washington. In other words: Purple America,
[Cross-posted at Cato's blog.]
Wednesday, November 5, 2008
What's Next for the Third Branch?
The new president will have a chance to significantly reshape the judiciary. President Bush managed to confirm only 321 judges—about 50 fewer than Presidents Reagan or Clinton—so there are plenty of vacancies to fill. Moreover, Congress has not created any new circuit court positions since 1991, while federal appellate filings increased by about 50 percent since that time; only four percent more district judges have been created during the same period, while filings to those courts increased by about 25 percent. We can expect, perhaps even in the “first 100 days,” a new judgeship bill that will add to the vacancies President-elect Obama will have to fill. 56 percent of federal judges are now Republican appointees, and the Ninth Circuit (based in San Francisco and sprawling across nine western states) is the only federal appeals court with a majority of judges appointed by Democratic presidents. Obama will be able to change the former statistic and swing control of all but three circuits (of the thirteen) to Democratic appointees. And then, of course, we have the two or three Supreme Court nominations the new president will probably have in the next four years: Justices Stevens, Ginsburg, and Souter are each likely to be off the Court by 2012. It is not for nothing that pundits consider judges to be one of the most undervalued policy areas in this long, strange campaign.
[Cross-posted at Cato's blog.]
[Cross-posted at Cato's blog.]
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