(Spotted via the great Slacktivist’s TMI, barbecue and other people’s sex lives.)
Monthly Archives: January 2013
DINOs — Democrats in Name Only — are a resurgent species in Florida. DownWithTyranny!: The Tarnished Brand (Florida Episode) takes a look at their enablers:
Florida has 27 congressional seats. You might think from Nelson’s 55-52% statewide win or Obama’s 50-49% statewide win that the districts are a little over half Democratic and half Republican. But you’d be wrong. Self-serving local Democrats– the state Senator Debbie Wasserman Schultz being the worst ever– made deals with the Republicans to guarantee their own personal impregnable fiefdoms while guaranteeing the GOP the bulk of the state’s seats. Only 10 of the 27 seats are held by Democrats– obviously Wasserman Schultz being one of them– while Republicans hold 17 seats. Democratic districts have been drawn to produce gigantic Democratic wins– 87.6% for Obama in Frederica Wilson’s district, 82.6% in Alcee Hasting’s district, 71.1% in Corrine Brown’s district, 65.1% in Kathy’s Castor’s and Wasserman Schultz’s and 61.9% in Alan Grayson’s. Republican districts are drawn to be reliable– but not overflowing with votes. Republican victories in red districts are almost all in the 50%-60% range, only 3 getting up into the 60′s. That’s how you institutionalize non-accountability. And the state legislature is far worse.
Since we mentioned Wasserman Schultz, it’s worth mentioning that her insistence that no Democratic support go to anyone who challenges her Republican pal Ileana Ros-Lehtinen saw her friend win again this year– with only token opposition– while Obama won Ros-Lehtinen’s district with 53%. Debbie Wasserman Schultz– the GOP’s best friend in Florida, working as chairman of the DNC… again. She was key to handing lifelong Republican Patrick Murphy the Democratic nomination to take on Allen West and she’s the key figure in forcing Democrats in Florida to accept their old nemesis, lifelong Republican closet case Charlie Crist, as their next gubernatorial nominee.
It would be nice if the party would put up a more serious sacrificial candidate against IRL, but given her personal popularity and the size of her treasury, that would be a tactical move to distract and bleed her, not a very realistic hope; it is a pity the Florida Democratic party hasn’t the sense and the fortitude to do it, but that’s not the worst of its sins. On the other hand, the idea that I would be asked to swallow Chain Gang Charlie as the Democratic nominee for Governor is the sort of depressing prospect that takes all the energy out of the base.
Starting sometimes late Friday, my personal web page at law.tm stopped returning my boring homepage, and instead produced this:
There was also a sound track, produced by embedding this youtube video of “Epic Anonymous Rap song – Hackers” several screens below the main image:
Naturally, I wasn’t pleased, even if I sort of liked the middle part of the rap. Why attack me of all people? I’m for net freedom. Worse, the hack was blocking my main personal email address. Still worse, I was no longer able to access the domain via sFTP or ssh — everything timed out — making debugging somewhat challenging.
Eventually I figured out another way to log into the host machine, and verified that none of the files on the law.tm domain, including the .htaccess file, had been changed. This removed the most likely vector of the attack. That left two possibilities: The first was the very unlikely possibility of some very subtle SQL injection attack plus a level of traffic so hosing the domain that I couldn’t get through to it via ssh; this seemed unlikely because if there really was some DDOS-like event in progress I would have heard about it from my hosting company, Dreamhost, when the machine crashed, plus the redirect of the web page shouldn’t have worked either.
That left option #2 as the main suspect: a hack of the DNS records. The DNS records for this particular domain are manged by a different company than my web host, and their help desk is (a) located in London and (b) only open 9-5 London time Monday-Friday, leaving me high and dry for the weekend (smart hackers?). Perhaps coincidentally, perhaps not, I had just renewed the law.tm domain a few days earlier with the Netnames registrar. So the only thing I could do while I waited for the Netnames help desk to wake up was try to satisfy myself that this really was a DNS hack. That proved harder than I would have liked: the DNS records seemed to show incorrect information, with web requests for the domain being pointed to 184.108.40.206 and mail being sent to 220.127.116.11, neither of which was right. But then again sometimes the nslookup would come up ok with the right data. It could have been a propagation issue but why then were my http requests, even when I cleared DNS cache, never going through to my real page? Maybe, I worried, I didn’t know how to read the DNS records properly.
So I struggled with the problem. On Saturday I felt hamstrung by unusually slow and poor helpdesk support by Dreamhost, who have been much better in most of my past interactions. This time they announced a new-to-me policy that we couldn’t communicate by phone, only email, as they want a written record of anything relating to a security issue. And it took hours to get the first email response. When they did swing into action Dreamhost also refused to confirm I was having a DNS issue, even though that would have gotten them fully off the hook, saying only that the results were “ambiguous” … although in retrospect, that may have been an accurate assessment … so maybe score one for them after all. Unfortunately other than giving me an automated scan that showed possible problems elsewhere in things I manage but not on law.tm or its users. they didn’t say anything helpful about what else the problem might be.
In the end, thankfully, the problem seemed to solve itself this afternoon. The dig and nslookup data changed for the better — no more signs of the 18.104.22.168 or 22.214.171.124 IP numbers. OpenDNS’s cache started reporting the right info in more and more locations. Pretty soon all was back to normal. I even got a few — so far, sadly just a few — of the test messages I’d sent myself. (If you emailed me Friday evening or later, send it again please).
So I’m now pretty sure it was a DNS issue. Whether netnames got hacked (it’s happened before), or whether it’s some particularly ham-handed activity in connection with the domain name renewal, I may never know. Everyone I used to know at Netnames, which has been taken over once or twice since I last looked, seems long gone.
UPDATE 3pm 1/27/13: The problem, which I’ll say more about in my next post, seems to have been resolved. If you sent me any mail between Friday evening and early Sunday afternoon, it’s nearly certain that I didn’t get it, so please resend.
My main email account is down until further notice. If you need to reach me, please send mail to an address formed by taking my surname and adding @law.miami.edu.
Justice Sotomayor will be speaking at UM next Friday as part of her book tour. She’ll be interviewed by President Donna Shalala.
And, on Feb. 11 Justice Anthony Kennedy will be speaking here as part of the Robert B. Cole Distinguished Jurist Lecture Series. I gather our own Patrick Gudridge will be his interlocutor, which should be something to see.
The House duly passed the debt limit waiver bill 285 to 144, with 33 Republicans and 111 Democrats voting no. House GOP leaders duly made statements about what a great achievement ‘no budget no pay’ was, perhaps an attempt to distract from how great a climbdown the main part of the bill was.
Most lawyers I’ve communicated with took the view that most every court, and certainly the Supreme Court, would not choose to declare the debt ceiling waiver unconstitutional — even if both mechanistic and good-faith application of current severability doctrine would suggest that it should. That’s probably correct predictively, which says something about the importance of realpolitik in Constitutional interpretation. Although anyone who ever read Dames & Moore v. Reagan should already know that….
Meanwhile Seth Barrett Tillman has proposed a nice way to avoid the severability question altogether. Since the text of the 27th Amendment says “No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened” the remedy for a bill that violates this provision is an injunction staying the pay terms until the next election. Under this elegant formulation, the pay provision of the bill is not held to be unconstitutional as such, just given no effect until, in this case, it has no remaining effects. Very neat.
The House GOP leadership introduced its 3-month debt limit increase yesterday and plans to vote on it tomorrow. As a sweetener to paper over their turnaround on the debt limit, the GOP attached a “no budget no pay” provision to H.R. 325 that could change the payment of Congressional salaries. While this looks like unconstitutional grandstanding, there is a chance that — intentionally or not — the “no budget no pay” part of the statute could function as a poison pill clause. If so, I am concerned that any challenge to the unconstitutional part could have the effect of restoring the debt ceiling while seeming to put the blame on the courts rather than Congress.
Explaining what I’m worried about is slightly convoluted, involving first the validity of a Constitutional Amendment with a strange ratification history and second the arcane rules about “severability” — what courts should do when they find part of a statue unconstitutional — so bear with me.
As you may know, the House GOP’s fig leaf for its temporary parole of the hostage it had taken (the international economy) was to say that unless the Congress passes a budget this year — instead of the various continuing resolutions and such under which we’ve operated for some time — federal legislators would not get their salaries.
This provision is (almost certainly) blatantly unconstitutional. The US Constitution provides, in the 27th Amendment (proposed 1789, ratified 1992(!)),
No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.
The reason for the “(almost certainly)” is that the 27th Amendment has an unusual history. The provision was one of the two amendments in the original bill of rights that did not get approved by a sufficient number of states. It laid largely dormant for almost two centuries until being revived due to a campaign started by U. Texas undergraduate. (He got a C on the paper proposing the campaign, by the way.)
No court has ruled on the validity of the 27th Amendment, but in light of Coleman v. Miller, 307 U.S. 433 (1939) and the subsequent acceptance of the 27th Amendment by Congress, I think it’s a very good bet that just about every judge in the land would say it was valid.
If so, we turn to figuring out whether H.R.325 violates the 27th Amendment. The structure of the bill “To ensure the complete and timely payment of the obligations of the United States Government until May 19, 2013, and for other purposes” is simple: Two sections. Section One is short, and says the debt ceiling “shall not apply for the period beginning on the date of the enactment of this Act and ending on May 18, 2013.” Section Two is much longer and purports to put congressional salaries in escrow until the end of the session if no budget is passed. I’ve put the full text of it at the end of this post. The key parts that relate to salaries are these:
[2(a)](1) IN GENERAL- If by April 15, 2013, a House of Congress has not agreed to a concurrent resolution on the budget for fiscal year 2014 pursuant to section 301 of the Congressional Budget Act of 1974, during the period described in paragraph (2) the payroll administrator of that House of Congress shall deposit in an escrow account all payments otherwise required to be made during such period for the compensation of Members of Congress who serve in that House of Congress, and shall release such payments to such Members only upon the expiration of such period.
(4) RELEASE OF AMOUNTS AT END OF THE CONGRESS- In order to ensure that this section is carried out in a manner that shall not vary the compensation of Senators or Representatives in violation of the twenty-seventh article of amendment to the Constitution of the United States, the payroll administrator of a House of Congress shall release for payments to Members of that House of Congress any amounts remaining in any escrow account under this section on the last day of the One Hundred Thirteenth Congress.
Does this comply with the 27th Amendment? I don’t think this is even a close question: in my view the escrow provision clearly does not. The prohibition on “varying the compensation” seems pretty clear to me: it means no changes in amount, and no changes in time of payment because there is a time value to money. Anyone who gets a salary would think it a very material change in the terms if the money were escrowed for more than a year and a half instead of being made available to pay the mortgage.
You might, therefore, be forgiven for dismissing the House GOP insistence on this provision as mere grandstanding — one quick lawsuit by a member of Congress wanting his pay, and the pay limit is toast.
But here, finally, is where I have a somewhat scary thought: Is it possible that the pay provision is non-severable from the debt ceiling increase? Could it be the case that if a court strikes down the pay provision — as I think it must do if asked — will the court also be forced to nullify the debt ceiling increase provision of the bill? Is this pay provision not just grandstanding but in fact, and perhaps even intent, a piece of Machiavellian scheming?
Answering those questions requires some background in the law relating to “severability”.
We are long past the point where one unconstitutional clause necessarily infects an entire statute. There is now a substantial body of doctrine about when a court should “sever” the unconstitutional piece and leave the rest. Much of that doctrine concerns statutes with a “severability clause”, an instruction from Congress about what to do if a dubious clause is struck down. As H.R. 325 does not have a severability clause, we can ignore all that and turn straight to the rules for statutes without severability clauses.
The Supreme Court recently addressed this very issue in Free Enterprise Fund v. Public Co. Accounting Oversight Board, 130 S.Ct. 3138, 3161-62 (2010), which involved the fate of the Sarbanes-Oxley Act. I’ve excised the citations in the quote that follows:
“Generally speaking, when confronting a constitutional flaw in a statute, we try to limit the solution to the problem,” severing any “problematic portions while leaving the remainder intact.” Because “[t]he unconstitutionality of a part of an Act does not necessarily defeat or affect the validity of its remaining provisions,” the “normal rule” is “that partial, rather than facial, invalidation is the required course[.]” Putting to one side petitioners’ Appointments Clause challenges (addressed below), the existence of the Board does not violate the separation of powers, but the substantive removal restrictions imposed by §§ 7211(e)(6) and 7217(d)(3) do. Under the traditional default rule, removal is incident to the power of appointment. Concluding that the removal restrictions are invalid leaves the Board removable by the Commission at will, and leaves the President separated from Board members by only a single level of good-cause tenure. The Commission is then fully responsible for the Board’s actions, which are no less subject than the Commission’s own functions to Presidential oversight.
The Sarbanes–Oxley Act remains “ ‘fully operative as a law’ ” with these tenure restrictions excised. We therefore must sustain its remaining provisions “[u]nless it is evident that the Legislature would not have enacted those provisions … independently of that which is [invalid].” Though this inquiry can sometimes be “elusive,” the answer here seems clear: The remaining provisions are not “incapable of functioning independently,” and nothing in the statute’s text or historical context makes it “evident” that Congress, faced with the limitations imposed by the Constitution, would have preferred no Board at all to a Board whose members are removable at will.
So the issue is whether (1) HR 325 remains fully operative as a law, and (2) whether in light of the statutory and historical context “it is evident that the Legislature would not have enacted those provisions … independently of that which is [invalid].”
Even assuming HR 325 passes the first test, does it pass the second? Will it be clear at passage that the bill would have passed without the Republican face-saving section on Congressional pay?
There are powerful reasons to say no, that the two parts of the statute are tightly linked. Just consider what the GOP leadership has been saying. For example, Eric Cantor and John Boehner:
“We will authorize a three-month temporary debt limit increase to give the Senate and House time to pass a budget,” House Majority Leader Eric Cantor, R-Va., said. “Furthermore, if the Senate or House fails to pass a budget in that time, members of Congress will not be paid by the American people for failing to do their job.”
In selling the idea, House Speaker John Boehner called the Senate’s failure to pass a budget over the last four years “shameful.”
Or Darrell Issa, who originally said the no pay idea was unconstitutional, but then backpeddled, said,
“I strongly support the House Republican leadership’s proposal to link the debt ceiling increase to passage of a budget by the Senate, which has gone 1360 days without passing a blueprint for federal spending.
So Congressional leaders are selling the provisions as linked. Does this mean that the two sections of H.R. 325 are too closely linked to be severable? I think the best answer is that we don’t know yet, since the vote hasn’t happened, but it is a real possibility. The answer may turn on the final vote and the debate around it. The more that Members of Congress say the only reason they are going along is the “no budget no pay” clause, the worse it will look. If the vote is close, will a judge be able to say in good conscience that H.R. 325 would have passed without the pay provisions? I’m not sure I could say that if I were a judge. On the other hand, if the vote is very lop-sided, it could be easier to argue, and to persuade oneself, that the provisions were not key to passage, and that even some Republicans voting for it might have swallowed the debt ceiling increase without the pay sop attached.
One could of course argue that all the talk about the value of the “no budget no pay” rule is just legislative camouflage, and should not be taken too seriously. That might well be true politically. But in the face of statements by both key House leaders and perhaps many of the rank and file saying “no budget no pay” matters to their vote, asking a court to in effect hold that members of a co-ordinate branch of government were dissembling might be asking lot.