Discourse.net

Is McCain a "Natural Born Citizen"?

Any naturalized citizen can run for any office in the land — except for President and Vice-President. They have to have been citizens at time of birth. That, at least, is how I and almost everyone reasonable reads the relevant Constitutional clause — it’s not about Caesarians.

Everyone agrees that persons born in the USA are natural born citizens. Almost everyone agrees that persons born outside the US who qualify for birth citizenship pursuant to a statute are also “natural born citizens” and eligible to be President. That’s certainly my view. A few people have argued that only persons born here are “natural born” citizens, and that other class of birthright citizens are not sufficiently “natural”, but I think that’s a losing argument, and it hasn’t gained much traction.

John McCain was famously born in the Canal Zone — not in the US. But both his parents were citizens, so that’s no problem, right?

Not so fast.

From Adam Liptak’s latest, A Citizen, but “Natural Born”? McCain’s Eligibility to Be President Is Disputed by Professor, we learn of a serious argument against McCain’s eligibility.

The analysis, by Prof. Gabriel J. Chin, focused on a 1937 law that has been largely overlooked in the debate over Mr. McCain’s eligibility to be president. The law conferred citizenship on children of American parents born in the Canal Zone after 1904, and it made John McCain a citizen just before his first birthday. But the law came too late, Professor Chin argued, to make Mr. McCain a natural-born citizen.

What about citizenship by descent? There was a glitch.

At the time of Mr. McCain’s birth, the relevant law granted citizenship to any child born to an American parent “out of the limits and jurisdiction of the United States.” Professor Chin said the term “limits and jurisdiction” left a crucial gap. The Canal Zone was beyond the limits of the United States but not beyond its jurisdiction, and thus the law did not apply to Mr. McCain.

Which is why the 1937 law was needed in the first place.

The Supreme Court has relied on far less pettifogging distinctions to deny the right to sue to whole classes of workers. Surely a ‘strict constructionist’ court would read the law this way too? (The counter-argument is the sort of purpositive reading of law that conservatives usually claim to eschew, namely that this is a crazy result that Congress couldn’t have meant in the earlier law, and the ‘37 act was just housecleaning.)

Mr. Liptak suggests we’ll never know, as (despite there having been a suit on this issue filed in New Hampshire) there is probably no one with standing to sue, a legal term that approximates the concept of direct, palpable or probable, person injury of a kind not shared equally with all citizens. Prof. Chin suggests that if McCain is elected, the Vice President-elect will have standing, but is unlikely to sue.

I think the standing argument is probably right. Even so, it would be nice to think that the issue could get into court, but not to throw McCain out of the election, which would be a travesty. As Prof. Chin rightly says, “Presidential candidates who obtained their citizenship after birth are no more likely to be disloyal than those born citizens, and the People of the United States should be allowed to elect whomever they choose.” (Insert “shortly” before “after birth” if it makes you feel better.)

No, the reason to wish this would get into court is that it would provide a strong excuse for knocking the stuffing out of the largely pernicious Insular Cases which form the basis for the argument of McCain’s ineligibility. The Insular Cases are the basis for the argument — wrong in my opinion — that most of the Constitution stops at the water’s edge. I believe that the Constitution applies to the officials whose offices exist under it whereever they act. I don’t think non-US citizens abroad have constitutional rights like US citizens at home or abroad do, but I don’t think that government officials lose the shackles of law when they cross the border. Too often — think Guantanamo — our officials act as if they do, and their lawyers try to justify it in court.

Judge Quit FISA Court in Protest Three Years Ago

Via Pogo Was Right, FISA Court Judge Quit Over White House’s Refusal to Legally Obtain Spy Warrants, comes this story which, while it speaks very well for Judge Robertson, carries the troubling implication that the judges with a strong view of the bill of rights may self-select off the FISA court.

FISA Court Judge Quit Over White House’s Refusal to Legally Obtain Spy Warrants

Three years ago, US District Court Judge James Robertson sent a letter to Chief Justice John G. Roberts Jr., notifying him of his resignation from a secret intelligence court set up to monitor the federal government’s domestic surveillance activities.

Robertson’s abrupt departure came on the heels of a December 2005 report in The New York Times that first exposed the White House’s warrantless wiretapping program President Bush had authorized shortly after 9/11. Robertson, who was appointed to the Federal Intelligence Surveillance Court by the late Chief Justice William H. Rehnquist, told colleagues that President Bush’s unilateral decision to spy on Americans suspected of links to terrorists, without first seeking approval from the 11 judges assigned to the FISA court, was legally questionable and his resignation should be interpreted as a sign of protest.

This week the Senate will vote to allow this corrupt administration to wiretap Americans for up to a week without a warrant, and to remove the check of liability on telcos that enable past (and by implication future) illegal wiretaps.

Parlous times.

Republicans For Obama

What makes Republicans into Obama supporters? Unqualified Offerings explains:

It’s all about too much power in the executive branch, which is a conservative principle. Because of the war in Iraq and partisan division, Bush and Cheney convinced Republicans that this is something you should be for. But guys who went to law school know better than that.

So do gals.

Would Telco Immunity Be a Takings Clause Violation?

Prof. Anthony Sebok has a really interesting article up at Findlaw: in Is It Constitutional for the Senate to Retroactively Immunize From Civil Liability the Telecoms That Provided the Government with Information About Customers’ Communications? he argues that the proposal to give retroactive immunity to telecom companies who illegally wiretapped their customers may be an unconstitutional uncompensated taking as regards plaintiffs in currently pending claims.

Without doing some research, I don’t know the law well enough in this area to form an opinion, but it’s intriguing and I’d welcome comments from those who know the area.

NYT Does Encryption and the 5th Amendment

Adam Liptak, who has been on a roll lately, has another great “Sidebar” in today’s NYT entitled, If Your Hard Drive Could Testify …. The article quotes me and Orin Kerr as if we were opposed; oddly, although I think Orin and I do have disagreements about what the law on encryption should be, I suspect Orin and I agree with each other on the points for which we’re actually quoted.

Although the article does a great job of describing some recent cases and issues, the academic in me wishes that every time anyone writes about this stuff they’d have the space and time to provide what I see as some critical context for the debate as to when a person can be forced to hand over the key to a cryptosystem.

There are plenty of technical issues here (what happens if you really have forgotten your password? or if someone has put random gunk on your hard drive, making it look like there’s crypto there?), but even more important fundamental ones. In particular, the current debate over the extent to which the 5th Amendment protects encrypted messages matters so much because our understanding of the 4th Amendment has changed. A hundred years ago, the Supreme Court thought it was obvious that asking a person to turn over his private papers was a constitutional violation. Even 30 years ago the Court thought that the 4th Amendment protected some zone of private papers such as a diary from demands that they be turned over. (Note that there can be an important difference between finding something in a search and demanding that the subject of the search find it for you.) Today, although the Supreme Court has never actually decided the diary issue, it’s pretty clear that no other writing — and probably not the diary either — is protected from such demands.

It’s the evisceration of the 4th that puts such pressure on the 5th. It may be that as a society we really don’t want to allow any zone of privacy beyond what you can keep in your head. But as devices record more of our lives, and as we rely increasingly on what some of us only half-jokingly call our prosthetic memories, I think that it is increasingly unrealistic to exclude at least some bits from the intimate zone of privacy if we wish to remain true to the purposes of the 5th (and 4th) Amendments.

Coral Gables's Mysterious Nativity Scene

This elaborate nativity scene is prominently displayed in downtown Coral Gables near the corner of Ponce De Leon and Alhambra, on a little circle of land that might be public, or might be an amenity belonging to a nearby office building. It has no sign on it saying who erected it or how it got to be there.

Google Maps actually has a good image of it:

View Larger Map

I’ve never taught or litigated an Establishment Clause case, but I was under the impression that if this is public land, there has to be a sign on such a display explaining who paid for it, lest it appear to be a city-purchased religious display. Then again, it might be private land. Indeed, one of my colleagues tells me that there used to be a church where the building next to the circle now stands (the tall thin building in the image above), and speculates that when they sold the land they held on to this piece (or kept an easement) just for this purpose. Could be: but why no sign claiming credit?

Passphrases and the Fifth Amendment

Declan has the scoop, Judge: Man can’t be forced to divulge encryption passphrase:

A federal judge in Vermont has ruled that prosecutors can’t force a criminal defendant accused of having illegal images on his hard drive to divulge his PGP (Pretty Good Privacy) passphrase.

U.S. Magistrate Judge Jerome Niedermeier ruled that a man charged with transporting child pornography on his laptop across the Canadian border has a Fifth Amendment right not to turn over the passphrase to prosecutors. The Fifth Amendment protects the right to avoid self-incrimination.

Niedermeier tossed out a grand jury’s subpoena that directed Sebastien Boucher to provide “any passwords” used with his Alienware laptop. “Compelling Boucher to enter the password forces him to produce evidence that could be used to incriminate him,” the judge wrote in an order dated November 29 that went unnoticed until this week. “Producing the password, as if it were a key to a locked container, forces Boucher to produce the contents of his laptop.”

Full text of the decision in In Re Boucher, 2007 WL 4246473 (D. Vermont, Nov. 29, 2009).

Long ago I wrote a lot about encryption keys, and touched on this issue. You can read the articles at The Metaphor is the Key: Cryptography, the Clipper Chip and the Constitution, 143 U. Penn. L. Rev. 709 (1995) and especially It Came From Planet Clipper, 1996 U. Chi. L. Forum 15.

The heart of the argument is that things in your head are not like objects in your possession: the core value of the Fifth Amendment is that you can’t be made to speak in ways that indicate your guilt. Giving up a passphrase to an encrypted message ties you to the encrypted information; if the info is, say, child porn, it creates a very strong inference that you knew what the data were and that you possessed them (there are exceptions, including email some else sent to you that is decryptable with you private key, but ignore those scenarios for now).

Other people, notably the redoubtable Orin Kerr, who argue that there is no Fifth Amendment issue here tend to focus on the analogy of possession of a physical key to a physical lock. The law is pretty clear that you can’t stop the cops from taking a physical key on the grounds that the stuff inside that safe will tend to incriminate you.

But the law is also clear that the Fifth Amendment protects you from having to make an oral or written disclosure which is “testimonial” – that, is, whose content might tend to tie you to crime. (Note that “content” means “informational content” – you can be forced to give a meaningless writing sample for handwriting comparison purposes.) This is why the cops are not able to force suspects to take them to the dead body.

It seems to me that the pure compelled disclosure case is not that hard, and that this Magistrate Judge got it right. Note, however, that this decision, emanating from the lowest-level official in the federal court system, is not precedential for other courts; and since it is pretty brief its persuasive power may not be all that great either.

Nor do I think that making a defendant decrypt something without divulging the key would in any way solve the problem, as it still ties the defendant to the content.

The hard case for me would be if the police provided limited “use immunity”: they would promise not to make the fact that your key decrypted the info any part of the prosecution. Thus, for example, the indictment would just say the information was on your hard drive, without mentioning that you had the only key to decrypt it. I think, given the current state of doctrine, that courts might well hold this to be consistent with the Fifth Amendment, making the underlying provision little more than a fairly cumbersome technicality. Doctrinally, that is not such a hard result to foresee, but it is not as simple to explain why this would apply to a coded message and not a dead body.

The flip side of the hard case is when the government provides use immunity and the suspect/defendant claims he doesn’t know or has forgotten the passphrase. Then what?

In fact, I do have one ancient PGP key for which I seem to have forgotten the passphrase, so I know it can happen. But in most cases the police are likely to view this sort of memory malfunction as unduly convenient.

Congress Rediscovers the Power of the Purse

Secrecy News, Intelligence Oversight Flexes One New Muscle, is sort of a good-news, bad-news item.

The good news is that the Senate Intelligence Committee has reported out language that makes expenditures conditional on every member of the committee being briefed on a specific intelligence issue.

The bad news is that the committee apparently wasn’t able to figure this out for itself: it had to have the idea explained to it by by former Rep. Lee Hamilton.

If I had any boggle left in my mind this week, that would use it up.

Senators and Representatives Could Have Spoken Out On Waterboarding: the Constitution Protects Their Right to Speak Out Without Fear of Legal Consequences

A number of the best internet commentators are discussing today’s news that a few of the leading Congressional Democrats may have been – probably were – briefed about the administration’s plans to torture (waterboard, and maybe more) suspected terrorists being held in secret CIA facilities abroad. There’s confusion about the facts, with few of the people allegedly briefed confirming the story. Notably, however, it appears that of those briefed, only Rep. Jane Harman objected. (Note that we’re still at an early spin stage here — more facts about who said what to whom are likely to come out.)

The emerging consensus in the blogosphere seems to be that even if they had the presence of mind to object, the Representatives and Senators who were briefed were in a bind: as members of the Intelligence Committees or the leadership, they signed various secrecy pledges which stopped them from going public. To go public, it seems to be agreed, was to “jeopardize their careers and risk jail” as Kevin Drum put it; even so, Matthew Yglesias suggests that this called for civil disobedience, and that the representatives should have dared the administration to arrest them.

All this misses a critical aspect of our constitutional structure. Thanks to the Speech and Debate Clause there was a way for any Senator or Representative who wanted to blow the whistle to do so in a way that involved no risk of jail or fines – at worst they might have lost their security clearances (and even there the law is a little murky).

Article I, section 6 of the Constitution reads as follows,

The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.

No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.

(emphasis added)

The Speech and Debate clause has been interpreted to extend beyond floor speeches, e.g. to committee statements, but it unquestionably applies to floor statements. Thus, it would have been possible for Rep. Harman, or Senator Rockefeller, or the others allegedly briefed to go to the floor, either during the times when members may speak on topics of their choice, or under one of the extraordinary mechanism for privileged statements, and denounce the Bush administration’s determinate to torture helpless captives in secret offshore detention facilities.

I’m not saying this would be easy or politically painless. The political risks are obvious – and recall the Congress was being briefed not all that long after 9/11. But even without the national security angle or the political frenzy angle, there were also counterveilling issues of fundamental personal ethics As Rep. Harman noted,

“When you serve on intelligence committee you sign a second oath — one of secrecy,” she said. “I was briefed, but the information was closely held to just the Gang of Four. I was not free to disclose anything.”

Serious people take oaths like this seriously and are right to do so; but before they took that second oath, they took a first one upon taking office in which they promised to “preserve and defend the Constitution of the United States.” To the extent that the second oath allows the executive to muzzle members of Congress, it is unconstitutional under any theory, including not only the Speech and Debate clause, but also the Incompatibility Clause (which forbids members of congress from serving in the executive branch; a converse conclusion is that this clause forbids the executive branch from turning members of Congress into subordinates).

Although apparently too easily forgotten, the Speech and Debate Clause is, as Justice Harlan said in United States v. Johnson, 383 U.S. 169, 178 (1966),

the culmination of a long struggle for parliamentary supremacy. Behind these simple phrases lies a history of conflict between the Commons and the Tudor and Stuart monarchs during which successive monarchs utilized the criminal and civil law to suppress and intimidate critical legislators. Since the Glorious Revolution in Britain, and throughout United States history, the privilege has been recognized as an important protection of the independence and integrity of the legislature.

The Supreme Court has limited the reach of the Speech and Debate Clause in some relevant respects. In Doe v. McMillan, 412 U.S. 306 (1973), the Court distinguished statements on the floor (or in committee) – which are and remain completely privileged – and their republication elsewhere. In that case a committee print of one of its reports, issued in a routine manner by the Public Printer, contained allegedly defamatory statements about private citizens. They sued for an injunction to prevent further publication, dissemination, and distribution of the report until the objectionable material was deleted, and sought damages. The Court held that the Members of Congress and their staffs could not be sued due to the Speech and Debate Clause, since their actions had all been part of the ordinary legislative process. But the Court also held the Superintendent of Documents and the Public Printer could be sued because they had no broader immunity than Members of Congress would have and their actions in publically disseminating the report outside Congress were not legislative acts, unlike voting, speaking on the floor or in committee, which are protected.

More troubling for third parties, however, is Gravel v. United States, 408 U.S. 606 (1972). Senator Gravel read key parts of the Pentagon Papers at a committee hearing, and then placed the full text of the 47 volumes of it into the public record. That act, the Supreme Court held, was privileged, an argument it called “incontrovertible.” But the Court refused to assume that once the material was in the public record it automatically followed that arrangements to republish them were inevitably legal, nor did at accept that Senator Gravel’s attempts to find a publisher (or his aide’s, which they took to be the same thing for these purposes), fell under the Speech and Debate Clause.

Combine this holding with the administration’s more recent and aggressive re-interpretations of the Espionage Act, which seek to extend it to reach the conduct of parties not holding clearances who share information that they acquire from someone who has one, and you begin to wonder whether newspapers that republished the floor speech might not face some legal attacks from the Justice Department. Although I personally think that the First Amendment must protect a newspaper that republishes a member of Congress’s statements on the floor, it is clear that the current administration has taken positions that would allow it to argue the contrary; more to the point, although I think the newspapers would win such a case, even the main Pentagon Papers case, much less the Gravel case noted above, don’t conclusively foreclose the government from arguing the contrary.

The question of security clearances is the murkiest part of the story. The Bush administration has consistently taken the extreme position that it never has any legal duty to tell Congress anything. It claims the power to ignore subpoenas. It says that the President is the only judge of what he has to do, and any attempt to compel him is unconstitutional. As early as 2001 the administration unilaterally revoked the security clearances of 91 Senators, arguing as GW Bush put it “it’s not in the nation’s interest” that they have access to information they could leak.

I believe that Congress could Constitutionally legislate to preserve the security clearances of members who disclose classified information on the floor. As far as I know (please correct me if I’m wrong), Congress has never passed such a rule, and in its absence, I think it is within the power of the executive to choose to deny clearances to whistle blowing members of Congress. That is a forward-looking loss of privilege rather than a legal disability of the sort that the Speech and Debate Clause protects against. But legally, that’s it. A member of Congress who learned of torture plans and chose to tell the nation about them would face no other legitimate legal risk; (there was, with the Gonzales gang, the not inconsiderable possibility of an improper prosecution, but many of the key events here were when Ashcroft was Attorney General) .

It would have taken great courage, and carried political risk, but our Constitution does provide a channel by which members of Congress can stand up and call the executive to account on its plans to torture someone in a secret CIA prison. At the end of the day it was that courage, not the legal avenue to expose wrongdoing, which was in too short supply in Congress.

(I’ve written the above in something of a hurry and think of it as a very preliminary attempt to explain the role of the Speech and Debate clause. I welcome correction and amplification from those who may know more than I; I would be particularly grateful for any insights regarding the granting and withholding of security clearances for members of Congress, a subject I am sure I have much to learn about.)

Senator Biden Ought to Read the Constitution

My brother’s column today, Is Bush Ready to Talk Pullout?, contains the following pointer:

Adam Leech writes in the Portsmouth (Maine) Herald: “Presidential hopeful Delaware Sen. Joe Biden stated unequivocally that he will move to impeach President Bush if he bombs Iran without Congressional approval.

“Biden spoke in front of a crowd of approximately 100 at a Seacoast Media Group forum Thursday, which focused on the Iraq War and foreign policy. When an audience member expressed fear of another war with Iran, he said he does not typically engage in threats, but had no qualms about issuing a direct warning to the oval office.

“‘The President has no authority to unilaterally attack Iran and if he does, as foreign relations committee chairman, I will move to impeach,’ said Biden, which was followed by a raucous applause.

“Biden said he is in the process of meeting with constitutional law experts to prepare a legal memorandum saying as much, and intends to send it to the President.”

Small problem. The Senate doesn’t initiate impeachments. Those have to come from the House of Representatives; the Senate’s role is then to judge the merits of the impeachment.

Art. I, Sec. 2, Clause 5: The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment.

Art. I, Sec. 3, Clause 6: The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.

Doesn’t Biden — a long-serving Senator, and veteran of impeachment trials — know that by now? Was he misquoted, or is he stupid, or does he think we are?

Blastocytes and Legal Logic

The author at SquareState.net:: Anchor Blastocysts has got a good legal argument that I hadn’t heard before regarding the movement to classify a fetus as a legal person from the moment of conception. The purpose of the rule is of course to make abortion legally murder. But there will be unanticipated consequences.

If the “Blastocysts are people too!” ballot measure passes in Colorado, the moment any undocumented worker gets pregnant, not only is that Blastocyst a person—it’s also an American Citizen!

Aside from the not-so-small point that citizenship is a federal issue and it is not clear from first principles whether the federal rule should or would follow the state rule, there’s obviously something powerful about this logic especially if the Colorado model were ever to be adopted on a national basis.

In that case, if a noncitizen female conceives a child in the US, presumably it would be wrong to deport the blastocyte or fetus. And that means we can’t deport the mother either. At least until the kid is born after which we are, as news reports from all over show, perfectly willing to deport mothers of small citizens if the mothers lack proper documentation.

I should add that, while powerful, this logic is not inevitable. Anglo-American law has in the past been able to make various distinctions about the unborn. Although not persons for most purposes, the inheritance laws, for example, extended to children “en ventre sa mère” (the absence of the “de” is not a typo; this is Law French, not the real thing). So it remains possible that the same people who deport nursing parents, leaving the citizens to fend for themselves, would have little trouble finding a theory to deport the unborn citizens as well. Pointing to the problems of proving domestic conception (the mind boggles) is only a first step….

Guy Fawkes Day Musings

Guy Fawkes Day is a good time to say that people in this country take the rule of law too much for granted.

Police Battle Lawyers in Pakistan: Police armed with tear gas and clubs attacked thousands of protesting lawyers in the city of Lahore today, and rounded up lawyers in other cities as the government of the Pakistani president, Gen. Pervez Musharraf, faced the first signs of concerted resistance to the imposition of emergency rule.

Life is better for everyone when lawyers battle in court.

We have many of the good things we have because people have some basic faith in the system — or, even if they don’t, most figure that the deal they are getting is not-bad enough (or the expected value of the future deal is good enough), that it’s not worth rocking the boat.

The election of 2000 challenged that faith for many. I, for one, have avoided teaching constitutional law in part because I don’t know how to teach Bush v. Gore in a way that wouldn’t produce a dangerous cynicism in my students.

Cynicism about the rule of law is especially dangerous for beginning law students because it too-easily becomes an excuse to avoid learning the close textual work that good lawyering requires. Told that there’s nothing going on but the Realist story, too many will conclude that, if ‘it’s all politics,’ why bother? I do believe that the law retains some substantial autonomy, and thus we have the rule of law — much of the time. If, however, I believed that it was in fact the case that all cases were political, I would accept that I have a duty to tell my students that truth at all relevant times. That isn’t what I believe. But it is politics sometimes, and if that happens too often, we pay for it.

Underpinning much of the elite and popular faith in the rule of law is some belief in democracy. Democratic legitimacy underwrites acceptance of the use of force that is sometimes needed to keep the peace. It is why people pay their taxes. That legitimacy is under stress at present (and, not coincidentally, voluntary tax compliance rates are in decline).

Almost two-thirds of the nation wants the US involvement in Iraq’s civil war to end soon (or at least within a year) and the number keeps climbing. Yet, the narrative in DC is not about the complex mechanics of getting our soldiers out in one piece and taking the Iraqi people who’ve helped us out of danger, but instead about invading Iran, a sure sign that something deep is broken somewhere.

Which explains, even if it doesn’t necessarily justify, signs of rising civil disobedience.

And that takes me to Crane Brinton’s Anatomy of Revolution. My copy is missing, but what I remember most clearly is that among the patterns he distilled from his study of disparate revolutions is first that “revolutions occur during times of rising expectations” and second that a regime tends to fall when its contradictions become intolerable for the intellectuals and functionaries who support it. (If you’re not familiar with this very readable classic, here’s a link to one denatured online summary.)

We’re not exactly in a period of rising expectations — 74% of those polled say the country is ‘headed in the wrong direction’. And the clerks are not as yet treasonous, although even some of the most loyal refuse to go to Iraq.

Indeed, if anything, too many intellectuals are still in the tank, in a manner reminiscent of the original La Trahison des Clercs (1927). Recall Julien Benda’s argument: he critiques a 19th and early 20th century world in which intellectuals become apologists for the crass nationalism and warmongering of militaristic regimes. That, of course, bears no comparison with current circumstances in which our national commentariate and our leading national media figures speak so dispassionately about political and military matters.

Is the Fourth Amendment Precatory?

US Attorney General nominee Michael Mukasey has written a very lawyerly letter to the Senate Judiciary committee. The letter fails to use the word “waterboarding” although the acceptance of a cast-iron prohibition on “torture and cruel, inhuman and degrading treatment” might fairly be seen to cover banning it. The letter might be enough to peel off a few votes on the torture issue.

If you read the letter with any care, however, you will see that it very carefully refuses to say that — even in the face of the FISA legislation occupying the field — the the law can place any limits on a President who decides to wiretap US citizens, in the US, without a warrant, so long as he decides he wants to and is willing to wave the bloody shirt of national security.

This is a strikingly odd position to take in this letter, as the case against those wiretaps is based on both constitutional text and a statute, elements which sufficed to get Mukasey to unbend enough to say that both torture and not-quite-torture are illegal.

If the Senate confirms him after this, they’re complicit in undermining the Constitution. Again.

The letter may, however, represent a fine-grained political judgment that there’s no way for the administration to win on torture (and this is the most graceful way to lose) but that there’s political capital to be had by being seen to be ‘tough’ on ‘terror’ — and that almost no one really cares about the Fourth Amendment anyway.

Under-Standing (In) Yesterday's Patriot Act Case

Orin Kerr has a thoughtful analysis of yesterday’s decision in Mayfield v. United States.

I think Orin has a very strong take on the standing issue — the issue bothered me when I read the decision, and he crystallized what bothered me. I don’t know enough about the criminal justice system to know to what extent if any this case differs from the (IMHO wrongly decided) Los Angeles v. Lyons case, but unless the plaintiff’s lawyers can do a better job explaining why than the judge did, I think the government stands a good chance of winning on this issue at whichever higher court hears the case last.

And that’s a shame. Orin sees the merits as a murky issue given the precedents, especially the Keith case, which is a fair point. Nonetheless, I see this as a pretty clear case given the underlying Constitutional principles. And I have to wonder what set of reasonably likely facts would ever give a plaintiff standing to make these claims in a post-Lyons world.

Being the sort of person who believes that in a constitutional system of government there is no legal right without a remedy (the very idea of ‘right’ being synonymous to me with ‘claim to a remedy’ and being disjoint from any issue of natural right which is an utterly separate issue), I am not at all comfortable — indeed gravely dislike — legal doctrines which shield alleged intrusions on our rights from judicial determination. Even if the court were to rule against my view on the merits, I think that’s better than ducking behind ahistorical and unjustified standing rules.

There’s maybe just enough in the facts here to let a court that wanted to make some new exception to existing standing rules — which are already not that coherent. But I don’t see Justice Kennedy as a likely person to do that.

Judge Rules Two Parts of Patriot Act Violate Fourth Amendment

U.S. District Judge Ann Aiken of Oregon ruled that 50 U.S.C. §§ 1804 and 1823, as amended by the Patriot Act, are unconstitutional because they allow search warrants to be issued without probable cause.

Full 44-page opinion in Mayfield v. United States for those who want their news unfiltered.

(Thanks to JST for the tip.)

Limits on Acting

Further to my musings on constitutional limits on “acting” officials, a self-professed “Very Unimportant Government Lawyer With Nothing Better To Do” draws my attention to 5 USC 3346, which imposes a statutory limit of 210 days or so in which an official can be “acting” in the absence of a nomination to a post.

The statute doesn’t explain who takes over if the 210+ day period lapses — I presume it’s the next in line for the job, (unless the President designates someone else).

(a) Except in the case of a vacancy caused by sickness, the person serving as an acting officer as described under section 3345 may serve in the office -

(1) for no longer than 210 days beginning on the date the vacancy occurs; or (2) subject to subsection (b), once a first or second nomination for the office is submitted to the Senate, from the date of such nomination for the period that the nomination is pending in the Senate.

(b)(1) If the first nomination for the office is rejected by the Senate, withdrawn, or returned to the President by the Senate, the person may continue to serve as the acting officer for no more than 210 days after the date of such rejection, withdrawal, or return.

(2) Notwithstanding paragraph (1), if a second nomination for the office is submitted to the Senate after the rejection, withdrawal, or return of the first nomination, the person serving as the acting officer may continue to serve -

(A) until the second nomination is confirmed; or (B) for no more than 210 days after the second nomination is rejected, withdrawn, or returned.

(c) If a vacancy occurs during an adjournment of the Congress sine die, the 210-day period under subsection (a) shall begin on the date that the Senate first reconvenes.

Hard-core separation of powers dorks will want to take a look at Doolin Security Savings Bank v. Office of Thrift Supervision 139 F.3d 203 & 156 F.3d 190, wherein among other fascinating things, a diverse panel of the DC Circuit agrees unanimously that the head of the Office of Thrift Supervision is an “Officer of the United States” and that the 210 day clock starts when an acting person starts in on his job and not when the vacancy occurs.

(Adlaw mavens may be startled at the discussion of harmless error in a separation of powers case. I was.)

The Constitution and Acting

Someone asks,

Suppose Bush were to decide that a confirmation fight (or even just a hearing) over Gonzales’s successor would be too painful, and a recess appointment too controversial. Does he have to nominate anyone? Or can he go through the rest of his Administration with Solicitor General Clement as an interim AG? Are there any powers that a confirmed Attorney General has that an interim Attorney General doesn’t? Are there any steps that the Senate or anyone else can take in the event of that eventuality?

As far as I know, an acting Attorney General has all the powers of a confirmed Attorney General; the difference is political, not legal.

Although there is no way that Congress can force the President to exercise his appointment power, I suppose it would be possible for Congress to condition the exercise certain powers of the Attorney General on there being a confirmed holder of the office. I don’t think it would be good policy — in fact I think it would be very bad policy to leave the country unable to do things that need doing — but offhand I can’t see a constitutional obstacle to such a statute.

There is also a very weird Constitutional argument that might be brought into play but I think it would —- and should — fail. But here it is anyway:

The Solicitor General is appointed by the President by and with the consent of the Senate, as is the Attorney General. But under Article II, Section 2, paragraph two of the Constitution, there are (at least) two kinds of major Presidential appointees: “Officers of the United States” and “Inferior Officers”. The full “Officers” require Senate confirmation; Congress can waive the confirmation requirement for the “inferior” kind. If Senate confirmation has been waived, then only the President, or courts, or “Heads of Department” (usually understood to mean Officers) can appoint “inferior officers”. Let’s assume that the Attorney General appoints an “inferior officer” who then makes a decision altering the rights, duties, or responsibilities of someone willing to sue (thus solving the standing issue).

The aggrieved person could argue that the Solicitor General is only a mere “inferior officer” himself — one for whom, as it happened, Congress had not waived the confirmation requirement, but for whom it could if it so chose. If this were correct, any “inferior officer” appointed by the acting Attorney General (himself an inferior officer) held that office illegally and his decisions are null and void.

But is this a good argument? I’m somewhat dubious.

First, one would have to argue that even if the Solicitor General were an inferior officer ordinarily, his being the acting Head of Department didn’t give him the necessary appointing power for constitutional purposes by virtue of his acting status. This part of the argument takes us to unchartered waters. Some formalists would argue that a department head is a department head. Other formalists would argue that status comes at the time of appointment. A structuralist would worry that if the President could place non-officers into officer positions in this manner it would undermine the separation of powers. Traditionalists might say that we’ve often let acting officials run things, and we should be mindful of the need to have a working government would likely carry the day. Being a structuralist at heart, I think the argument here isn’t bad — but it all depends on the Solicitor General being “inferior” in the first place.

And this second part of the argument seems much more doubtful. One would also have to convince a court that the Solicitor General wasn’t an “officer of the United States” in his own right. That’s far from obvious.

There is no bright line between the two types of appointees. We do know that Cabinet officers like the Attorney General are unquestionably “Officers” and that the Special Prosecutor under the now-lapsed statute authorizing them was — barely — an “inferior officer”.

The argument that the Solicitor General is only “inferior,” relies on the facts that he reports to the AG, and is actually the number four official in the DoJ pecking order. No court has ever held that reporting to someone rather than directly to the President is a necessary element of “officerness” but then again no court has ever held otherwise, so the argument remains open. Plus, since the Attorney General is only #4, calling him an “officer” would suggest very strongly that there are four “officers” in the DoJ, and several in every other cabinet department as well; that sounds like a lot.

But given the long history and tradition of the office of Solicitor General, I don’t think most courts would find it very difficult to say that the Solicitor General was an “officer”. The Solicitor General has important powers and responsibilities over litigation, including the power to “confess judgment” — throw in the towel on appeal before the Supreme Court for a case the government won below. The office of Solicitor General dates back to 1870, and has a long and generally admirable tradition of independence, so much so that the Solicitor General is sometimes called the “tenth Justice”. I think the Solicitor General is probably an “officer” in his own right, and regardless of what I think, I’m pretty sure most courts and Justices would see it that way.

In short, no, I think there’s no legal reason the Solicitor General can’t be acting Attorney General for a long, long time. Even so, I predict that the he won’t be.

Interesting State Secrets Decision

Secrecy News brings word of a really interesting state secrets decision from the DC Circuit:

In an unusual move that may signal a new, more discriminating judicial view of the state secrets privilege, a federal appeals court has reinstated (pdf) a lawsuit which a lower court had dismissed after the government invoked the state secrets privilege.

The lawsuit was originally filed in 1994 by former Drug Enforcement Administration official Richard Horn who alleged that the State Department and the Central Intelligence Agency had unlawfully eavesdropped on his communications while he was stationed in Rangoon, Burma.

The government asserted the state secrets privilege in 2000 and moved for dismissal of the case. The government motion was granted by the D.C. district court (pdf) in 2004.

But in a June 29, 2007 decision (that was unsealed on July 20), the D.C. Circuit Court of Appeals overturned the dismissal. The Court did not dispute the government’s invocation of the state secrets privilege, but concluded that there was sufficient unprivileged evidence on the record to permit the plaintiff to argue his case.

“In many state secrets cases, a plaintiff has no prospects of evidence to support the assertions in his complaint and this lack of evidence requires dismissal. Here, however, Horn [the plaintiff] is not without evidence,” the Court said.

The Court presented its ruling as a straightforward application of established principles, including fairness to the parties.

But in a sharply dissenting opinion, one conservative member of the Court said that the decision to reinstate the lawsuit could fundamentally alter the use of the state secrets privilege.

“The majority’s reversal of the district court’s decision,” wrote Judge Janice Rogers Brown, “pushes this circuit’s state secrets jurisprudence in a new and troubling direction — one at odds with all other circuits that have considered the issue.”

The case was remanded to the district court level for further deliberation.

See the unsealed Appeals Court ruling “In Re: Sealed Case,” June 29, 2007.

Note that Janice Rogers Brown is on every short list of Republicans whom the Administration might seek to promote if a Supreme Court seats opens up. And that she’s seriously extreme.

A Simple Way to Improve Constitutional Literacy

I have a modest proposal that will go a long way to stopping idiocies like this and this, in which Congresspersons and reporters covering national politics demonstrate a basic ignorance of the Constitution.

Please don’t laugh, because I am serious about this: the full text of the Constitution should be printed in every US passport.

The US Passport was recently re-designed. What had once had a certain classic simplicity was tarted up with moderately kitschy pictures of “American Icons” and embellished with “inspirational quotes”:

The new passport comes with its own name: “American Icon.” It’s hard to think of one that was left out. The inside cover sports an engraving of the battle scene that inspired “The Star Spangled Banner.” A couple of lines of the anthem, starting with, “O say, does that star-spangled banner yet wave,” are scrawled in what the State Department says is Francis Scott Key’s own cursive.

The short, 28-page version of the passport comes with 13 inspirational quotes, including six from United States presidents and one from a Mohawk Thanksgiving speech. The pages, done in a pink-grey-blue palate, are rife with portraits of Americana ranging from a clipper ship to Mount Rushmore to a long-horn cattle drive.

You can see an animation of the whole design at the State Department’s website.

My plan is simple: remove the kitsch, replace it with the Declaration of Independence and the Constitution. (Or, as a fallback, keep the kitsch and at least add the Declaration and the Constitution.)

Travel these days involves a great deal of waiting in line, not least at security and immigration, times when a passport is often in hand and Americans might find themselves studying the Constitution if they have nothing else to read.

In the Constitution they might find all sorts of concealed gems, ranging from the clause providing for the impeachment of all “civil officers,” to the (long) list of Congressional powers and the (much shorter) list of Presidential powers, to that interesting Fourth Amendment — good reading while you are waiting to be frisked at the airport.

More than 74 million Americans have a passport, and the number grows every year. The passport is a great opportunity for a real civics lesson based on the things that make this country great — our real American Icons: the Declaration of Independence and the Constitution of the United States of America.

Bedtime Reading

Secrecy News points us to this important document:

A major new report (pdf) from the Congressional Research Service examines the congressional contempt power.

“Congress’s contempt power is the means by which Congress responds to certain acts that in its view obstruct the legislative process. Contempt may be used either to coerce compliance (inherent contempt), punish the contemnor (criminal contempt), and/or to remove the obstruction (civil contempt).”

“Although arguably any action that directly obstructs the effort of Congress to exercise its constitutional powers may constitute a contempt, in the last seventy years the contempt power (primarily through the criminal contempt process) has generally been employed only in instances of refusals of witnesses to appear before committees, to respond to questions, or to produce documents.”

“This report examines the source of the contempt power, reviews the historical development of the early case law, outlines the statutory and common law basis for Congress’s contempt power, and analyzes the procedures associated with each of the three different types of contempt proceedings. In addition, the report discusses limitations both nonconstitutional and constitutionally based on the power.”

See “Congress’s Contempt Power: Law, History, Practice, and Procedure,” July 24, 2007.

Not a Simple Case of Greed

South of the Suwannee has a comment on what looks like an interesting constitutional issue. Because I think the posting understandably kinda misses a key point, I’m going to take the liberty of quoting the whole thing:

Why Lawyers Have a Bad Image

Sheldon Schlesinger is a 77-year-old Fort Lauderdale attorney who has had a lucrative career in the personal injury field.

That’s fine, someone has to represent the injured.

In fact, his firm’s website proclaims, “Through all of the work we have done, our personal injury lawyers have never lost sight of what is most important — the health of our clients.”

Not many people are going to be sympathetic to him, however, when he froze payments to a paralyzed girl in order to collect more than his $1,000,000+ fee authorized by the State Legislature.

Schlesinger wants another $677,000 (which I doubt will change his lifestyle nor put his law firm in danger of unprofitability) and obviously he thinks he deserves it.

And it seems he’s willing to let the real victim continue to suffer to get his payoff.

I’m sure that is how most people would see this story. But not me — and not because I belong to the lawyers’ mutual protection society either.

Although the linked-to story is a bit thin, what seems to have happened is this:

• Minouche Noel (now 19 years old) suffers terrible injuries as an infant at the hands of a state entity and is paralyzed as a result;
• Noel (client) and Sheldon Schlesinger (lawyer) sign a contingency fee agreement. We don’t know the details, but state law caps contingency fees in these cases at 25% for legal fees and 6% for lobbying fees. One report says his contract provided for 20% of the recovery;
• Lawyer wins $8.5-million award from a jury in 1999 against state of Florida;
• Florida law prohibits payouts over $200,000 for negligence by government officials unless the legislature votes the money;
• Seven years of lobbying, including work by lobbyists hired by lawyer, finally result in legislation funding the payment;
• But the bill caps the lawyer’s own fees at $1,074,667, and the lobbyist’s fee at $85,000. That’s well below the statutory limit, and, lawyer says, less than was agreed.
• Via the Miami Herald, we learn that “Court records show that the Schlesinger law firm earlier this month filed a lien against Noel and her parents, who now live in Brevard County after moving from Fort Lauderdale.” The Noels on July 9 agree to pay $546,000 to the law firm and another $120,000 for lobbying expenses.

Bottom line: Since the lawyer never agreed to the compensation limit in the bill, he filed a lien against the payment. It may be that the July 9 agreement satisfied the lien, in which case the issue is resolved legally. South of the Suwannee says the filing of the lien was horrible and greedy since it threatened to delay (or actually delayed?) the payout to the victim. And from a quick online scan of the press, the newspapers all seem to agree that this is a simple case of lawyerly greed.

Assuming the facts above are correct, however, I think that this instant conventional wisdom is wrong: this isn’t a case of greed, and it isn’t simple.

First, there’s that pesky US Constitution. Article I, sec. 10 states,

Section. 10. No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.

In short, the Constitution bars states (but not Congress) from “impairment of contracts”. I’d say that this Florida legislation stands a good chance of violating of that constitutional prohibition. The modern test states that a state statute which substantially impairs a private contract falls afoul of this prohibition unless the state has “a significant and legitimate purpose behind the regulation, such as the remedying of a broad and general social or economic problem.” See Energy Reserves Group v. Kansas Power & Light 459 U.S. 400 (1983). I am not at all sure that this narrowly targeted bill meets that test. And surely it can’t be wrong to stand on constitutional principle?

Second, and simpler, I think it could fairly be argued that Mr. Schlesinger is not being simply greedy, or that even if he were being greedy then his greed serves a public purpose. It seems to have taken enormous perseverance — almost twenty years — to first win the case and then obtain this payment for his client. If the state legislature is free after the fact to fix payment at whatever it pleases, ignoring its own statutes that set reasonable bounds on what contingency fees can be, this will further reduce the incentive for people to take on the arduous and risky job of suing the state for its negligence. In short, victims will have a lot more trouble finding lawyers who won’t demand money up front. And a system that required a lawyer to lobby for her fee as well as for her client’s payment is a bad system — it creates a built-in conflict of interest between lawyer and client, one that might require hiring yet another lawyer to manage the lobbying process (at further expense to the client).

Having set the ground rules for contingency fees by statute, and running a rigged game in which it is so very, very hard for persons hurt by Florida state entities’ negligence to recover, the state legislature should not also be able to pull the rug out from under the agreements that make those recoveries possible.

I don’t know if there was some means other than the lien by which Mr. Schlesinger could have preserved his rights and the legal position. If there was one that wouldn’t delay payments to the victim, he should have taken it. But even that’s not a simple question: I wonder if declaratory judgment, for example, might have run the risk that a court would have declared the entire bill void, leaving his client with nothing. Which would be an even worse result.

As the Herald article notes, “Bruce Rogow, the lawyer who filed the lien on behalf of Schlesinger, said the law firm was following the letter of the law. Rogow said the wording of the claims bill, HB 593, limited what the attorneys could be paid out of Minouche Noel’s portion, but it did not limit what Jean and Flora Noel could pay the attorneys.”

On 'Outrageous' Government Conduct

I read the news that Judge Lewis A. Kaplan dismissed the criminal tax case against 13 KPMG defendants with a little bit of bemusement.

Judge Kaplan has a reputation as a fine judge, and I have no reason to question his decision…but it does make for an odd juxtaposition with the Padilla case, in which Judge Cooke denied Jose Padilla’s motion to dismiss for outrageous government conduct.

Here’s a snippet on the KPMG decision:

A judge threw out charges Monday against 13 former KPMG employees who were accused of participating in a fraud that helped the wealthy escape $2.5 billion in taxes. The ruling essentially guts what the government once called the largest criminal tax case in U.S. history.

U.S. District Judge Lewis A. Kaplan said he dismissed the charges because prosecutors blocked the defendants from putting on a defense. He said the government coerced KPMG to limit and then cut off its payment of the employees’ legal fees, meaning the defendants were effectively stripped of their constitutional right to legal representation in what was sure to be a long, expensive trial.

The harshly worded decision also amounted to a stinging rebuke of the Justice Department in its prosecution of KPMG, a global tax firm.

“Their deliberate interference with the defendants’ rights was outrageous and shocking in the constitutional sense because it was fundamentally at odds with two of our most basic constitutional values - the right to counsel and the right to fair criminal proceedings,” Kaplan wrote.

Sounds plausible. And not having followed the case with great care, I’m prepared to accept this ruling until someone explains to me what is wrong with it.

But it sure seems odd that denying the lawyer of their choice to bunch of rich professionals is outrageous government conduct sufficient to get a criminal charge dismissed, but the same does not apply to holding a guy in solitary for years under conditions that may amount to torture.

I am sure someone will reply that in the KPMG case the government action directly impacted the trial, while in the Padilla case the judge has ruled that nothing learned during his confinement in a military brig can be introduced at trial. Furthermore, government experts testified that despite the years of isolation and sensory deprivation Padilla is competent to stand trial. But — based only on the news reports of the KPMG decision — that misses the point of comparison. The KPMG defendants had access to lawyers, just not the very most expensive ones they wanted. (And in case you had doubts, there’s some evidence that those public defenders are pretty good…) Padilla may be functional, maybe, but does anyone seriously believe he is unscathed and as able to participate in his defense as he would have been but for the government’s conduct? If so, I have a portfolio of bridges to sell you…tax free…

(I’m always a bit nervous posting about cases based only on news reports. If there’s something in the text of the KPMG decision which explains this disjunction, I will welcome corrections and amplifications.)

Habeas Restoration Bill Hangs By a Vote

According to the reliable folks at Firedoglake, the habeas restoration bill is within a vote or two of passage.

If you are represented by any of the following fence-sitters,

Sen. Joe Lieberman (I-CT)
Sen. Ben Nelson (D-NE)
Sen. Chuck Hagel (R-NE)
Sen. Richard Lugar (R-IN)
Sen. Larry Craig (R-ID)
Sen. Susan Collins (R-ME)
Sen. Olympia Snowe (R-ME)
Sen. Norm Coleman (R-MN)
Sen. George Voinavich (R-OH)
Sen. John Sununu (R-NH)
Sen. Mary Landrieu (D-LA)
Sen. Gordon Smith (R-OR)
Sen. Lamar Alexander (R-TN)

please give them a call and encourage them to remove this blot on the rule of law. (Phone numbers and multiple arguments are here.)

A Very Informative Review of How Congress Enforces the Subpoena Power

TalkLeft, The Congressional Subpoena Power: How It Is Enforced

As the Congress and the Executive Branch move inexorably towards a clash regarding the Executive Branch’s refusal to accede to information requests from the Congress and the resulting subpoenas that have been issued, it is worthwhile to review the powers of the Congress in this regard. Fortunately, in 2003, the Congressional Research Service produced a handy report on the subject:

…

This post is intended to provide some factual background on this subject as there has been much bad information bandied about on this subject. I will be writing a subsequent post on the question of Congressional oversight powers related to its subpoena and information gathering powers.

Desegregation: Don't Panic

Daily Kos not only says the glass is empty, but that we’re entering the desert, SCOTUS: Segregation Now, Segregation Forever?.

But Eric Muller sees an oasis in the desert, In Seattle, Diversity Isn’t A Black-And-White Issue:

It appears that what Seattle was really after was not “diversity,” but ensuring that no school would be excessively non-white. Perhaps there is a case to be made that compelling benefits flow from having adequate numbers of white students in all of a district’s schools (as distinguished from the benefits that flow from true “diversity.”) But I don’t think the school district made that case — and in any event, I’m pretty skeptical of the claim.

And at SCOTUSBlog, Tom Goldstein more or less agrees, Analysis: Justice Kennedy and a Warning Against Overreading the School Cases:

One reading of today’s decision in the race cases is that the Supreme Court has outlawed programs that seek to increase racial diversity in the schools. Justice Kennedy’s concurrence does not adopt that view, however. And because his is the fifth vote, it is controlling. The better view, I think, is that the Court today has come close to extending the Grutter model to the lower school context, holding that school districts may account for race as one factor among many in student placement.

I haven’t had a chance to read the opinion with the necessary care, but this feels correct. The sky has not (yet) fallen.

Democracy and Free Speech 1

Pat Gudridge:

Chief Justice Roberts is not succeeding, so far anyway, in engineering a spirit of unanimity in the Supreme Court — 5-4 Monday is proof of that. No one could have seriously thought, however, that there was some magic charm Roberts might wield capable of transforming his seven srong-willed senior colleagues into cheerful followers. Roberts, though, is plainly trying to develop his own lines of thinking independent, often enough, of the established positions of Justices Scalia, Kennedy, and Thomas — at some point he may persuade one or more of them to follow his lead, maybe even in an important case. At minimum, it’s good practice: Roberts is likely to continue as Chief Justice well into the era after Scalia and Kennedy, at least, have left the Court. He may, someday, overawe their successors.

Wisconsin Right to Life — the campaign finance case — was not, however, Roberts’s most immediately successful effort. Scalia, Thomas, and Kennedy refused to join his attempt to define, as a matter of constitutional law, the difference between candidate advocacy and issue advocacy, and thus treat the enforcement of the federal statutory ban on candidate advocacy 30 days before primary election day as wrong given the facts of the particular case before the Supreme Court, but not wrong in principle. Justice Alito did join Roberts, but evidently rattled by Justice Scalia’s needling (“faux minimalism”), Alito also added a waffling opinion of his own (thereby supplying Scalia with a second target.) Was Roberts wrong? Ironically, he might be thought to have been not minimalist enough. Wisconsin Senator Feingold was running unopposed in the Democractic primary. The WRTL advertisement discussed the then-pertinent filibuster against several of President Bush’s judicial nominees, opposed such delaying tactics, and urged its audience to contact Senator Feingold and also Senator Kohl (for whom the election was irrelevant.) The federal statute keyed its ban to advertisements that referred to candidates. Feingold was a candidate — but he was also a sitting Senator (along with Kohl). Why not read the statute as not covering this case, especially since the primary was — in Feingold’s case — [AMF edit: not] a contested election? Roberts (like Scalia et al. and also the parties to the case) supposes that because Feingold is, among other things, a candidate therefore the statute covers the WRTL advertisement.

Why didn’t Chief Justice Roberts treat the case as a statutory matter rather than a constitutional matter as such? Maybe because the statute — the McCain Feingold Act — seemed to rest on a strong assumption that’s easy to accept: Election campaigning is what’s really important; issue advertising like that undertaken by WRTL in the case at hand really is backdoor candidate attack advertising (or support advertising), whatever its literal message appears to be. It’s easy to understand why Senators and Representatives would think like this (“it’s all about us”) — it’s their job, after all, to judge everything around them as potentially affecting their reelection prospects and to respond appropriately: that’s what, most of the time, democratic representative government entails.

But that’s not the only pertinent perspective. Why would WRTL spend its money, after all, to campaign against Feingold if he was running unopposed? Why would WRTL focus on filibustering as wrong — what does this have to do with protecting the lives of the unborn? To be sure, the judicial nominees who were denied quick votes were, in all likelihood, individuals who as judges would vote in ways that WRTL would support. But why not spend money on direct efforts to build support for the right to life? We know the answers: (1) Maybe WRTL was trying to build a coalition, to add support (sometimes, anyway) of individuals not strongly engaged regarding abortion etc., but strongly committed to straightforward legislative processes. There are such people (maybe quite a few, maybe especially in Wiisconsin, for all we know.) (2) Or maybe WRTL was trying to demonstrate that it has access to resources so rich that it can move beyond its core concerns and therefore needs to be treated, in the real business of legislative bargaining, as a real player. Feingold, on either hypothesis, is a prop, a faux target of the advertisements. Candidates may be secondary concerns even in election seasons.

This is a subversive suggestion, maybe: within our politics, who is elected may not matter as much as what those of us who are not candidates think about “our” own thinking — the views of each other with respect to the issues we all think matters. Election seasons are occasions for “real” politics — voter-to-voter argument, discussion, posturing, etc. Election results are sideshows. This conclusion, we know, is sometimes wrong “big time” (to quote Vice President Cheney)!!!!!! But it’s not always wrong — and, as a constitutional matter, we might want to treat free speech protection as more important insofar as it addresses the speech of those of us who are not running for office — maybe popular sovereignty suggests this bias. If so, whatever officeholders or their would be successors think, maybe statutes should be read, where possible, in ways consistent with this bias.

To be fair: Chief Justice Roberts did emphasize the distinction between candidate advocacy and issue advocacy. Indeed, he wanted to treat the distinction as part of constitutonal law. But he had a hard time explaining why. He thought that free speech protection requires bright lines. That’s a superficially attractive idea. But the enormous mass of Supreme Court free speech opinions yield very few bright lines. The greatest opinions, however, do try to link free speech protection to even more basic premises. See Brandeis in Whitney or Brennan in New York Times or Harlan in NAACP v Alabama etc etc. WRTL was an occasion for thinking about deep premises — and also a chance to articulate constitutional norms not as rules broken or followed, but as guides to interpreting congressional or other government efforts. Roberts had the change to be both maximal and minimal in the same opinion. Great opinions seize that opportunity.

Is That All There Is?

Pat Gudridge:

Davenport v. Washington Education Association, decided on June 14, is another case that the Supreme Court seems to have seen as easy work. In Washington, public sector unions represent not only members but other employees included within a pertinent bargaining unit. Only members pay dues, but as a matter of law unions are authorized to charge nonmembers “agency fees” equivalent to dues to cover expenses incurred in representation. Unions often use funds — generated by both dues and fees — to support candidates for public office who union officials think will act in ways furthering the interests of the individuals that the unions represent (both members and nonmembers). Some individuals who are represented — maybe especially those who are not union members — may disagree with union political judgments. The Supreme Court has held that state laws that authorize unions to collect agency fees operate unconstitutionally if they do not recognize the right of objecting individuals to withhold the fraction of their agency fees used for political action with which they disagree.

Voters in the State of Washington went one step further a few years ago: They approved an initiative measure requiring public sector unions to require affirmative agreement by nonmembers to use of their fees for purposes of political action. (The ordinary practice — usually thought to be constitutionally sufficient — involves unions sending notice to fee-payers of their right to object and the duty of the unions, once objection is made, to then adjust fees accordingly.) The effect of the initiative may well have been substantial: Even if only a few nonmembers had strong views about union political agendas, more might be indifferent, happy to save some money on agency fees, and in any event not prepared to go to the trouble of supplying affirmative authorization. Some individuals might even give up union membership in order to get the benefit of lower cost fees.

So the WEA (the politically powerful teachers union — maybe even the principal target of the initiative in the first place) challenged the constitutionality of the initiative, claiming that it violated the free speech rights of the union itself. The Supreme Court was not persuaded — Justice Scalia writing for the majority (with Justice Breyer — joined by Chief Justice Roberts and Justice Alito concurring, but noting their view that Scalia didn’t really need to write so much.)

Justice Scalia takes free speech quite seriously — as he understands it — and so his opinion warrants careful reading. He argued that “unions have no constitutional entitlement to the fees of nonmember-employees.” The fees were not union property (even if in union possession), but rather funds in union possession because of an “extraordinary state entitlement to acquire and spend other people’s money.” Why shouldn’t the state be free to set conditions on this “extraordinary” authorization? Scalia recognized that even in the absence of some constitutional property right, the union could object to conditions that violated free speech principles. And he acknowledged that the condition at issue split off political action expenditures from other representational expenditures in terms that necessarily turned on the content of the ideas the union was pushing (vote for x vs. pay workers y, for example). But government regulation triggered by communicative content, Scalia thought, was not especially troubling if it was not tied to viewpoint (don’t spend money to support Republicans, for example), and was otherwise an apparently reasonable response to an apparently real worry (election integrity in this instance).

Is any of this interesting?

Everything Justice Scalia writes is right within limits: It’s hard to describe the fees that the union receives as “its” property — the union holds the money in trust, we might say: owes a duty to those who pay the fees to use the money for proper purposes. Spending money to support candidates is not an improper purpose (Scalia does not suggest that it is): It’s one way to advance employee interests, sometimes anyway. Of course, objecting individuals have free speech rights not to have their money spent in ways contrary to their own views. But the union, as an association of individuals, has a free speech right to press its own views. Justice Scalia doesn’t really disagree with that either. He just thinks, in this opinion anyway, that free speech rights begin and end with protection against viewpoint discrimination. The Washington rule provides individual fee payers with plenty of protection against forced support of viewpoints they resist in fact, but puts no limit as such on whatever viewpoints unions want to assert (so long as they sign up fee payers in advance). No problem — if viewpoint regulation is all free speech law should worry about.

But notice what’s missing: The free speech interest of fee payers who object to union viewpoints is already plainly protected by the usual rule — the rule that Washington voters replaced — that requires unions to adjust fees of nonmembers who notify unions of their objections. There is no added free speech protection, we may think, owing to the Washington “advance approval” requirement. But the Washington approach plainly runs the risk of reducing resources for union speech over and above the constitutionally necessary limit set by the need to acknowledge dissenters. So there is likely a real free speech cost. Shouldn’t we try to think about “election integrity” or whatever other reason Washington has — think about how plausible it is, at least on the off chance that the point of the measure might have been precisely to reduce WEA clout vis a vis other interest groups?

In ancient times — in the bad old days of the Warren Court — Supreme Court justices often thought that these latter questions needed to be taken seriously too. What should we make of the fact that not one of “our nine now” thought that this case was in any way hard?

President for a Day

Cute piece of Senate trivia: President for a Day:

Until the 1930s, presidential and congressional terms began at noon on March 4. In 1849, that date fell on a Sunday, causing President Zachary Taylor to delay his inauguration until the next day. For some, this raised the question of who was president from noon of March 4 to noon of March 5. Of course, we now know that Taylor automatically became president on the fourth and could have begun to execute the duties of his office after taking the oath privately, a day before the public inauguration.

In 1849, the Senate president pro tempore immediately followed the vice president in line of presidential succession. That era’s ever-present threat of sudden death made it essential to keep an unbroken order of succession. To ensure that there was a president pro tempore in office during adjournment periods, the vice president customarily left the Senate chamber in an annual session’s final days so that the Senate could elect this constitutional officer. Accordingly, the Senate duly elected Atchison on March 2, 1849. His supporters, to the present day, claim that the expiration of the outgoing president’s and vice president’s terms at noon on March 4 left Atchison with clear title to the job.

Unfortunately for Atchison’s shaky claim, his Senate term also expired at noon on March 4, thereby denying him the chance to become president. When the Senate of the new Congress convened the following day to allow new senators and the vice president to take the oath of office, with no president pro tempore, the secretary of the Senate called members to order.

No one planning to attend Taylor’s March fifth inauguration seems to have realized that there had been a “President Atchison” in charge. Nonetheless, for the rest of his life, Atchison enjoyed polishing this story, describing his “presidency” as “the honestest administration this country ever had.”

[I’m in Italy until late Wednesday, so I queued up a few posts to cover while I’m away. This is one of them.]

The Case for Pyjamas

As of today, the police have a right to make you jump out of bed naked if they have a valid warrant — even if it’s pretty clearly for someone else, and even if the someone else sold you the house you are living in three months earlier.

Meet Los Angeles County v. Rettele:

Deputies of the Los Angeles County Sheriff’s Department obtained a valid warrant to search a house, but they were unaware that the suspects being sought had moved out three months earlier. When the deputies searched the house, they found in a bedroom two residents who were of a different race than the suspects. The deputies ordered these innocent residents, who had been sleeping unclothed, out of bed. The deputies required them to stand for a few minutes before allowing them to dress.

The residents brought suit under Rev. Stat. §1979, 42 U. S. C. §1983, naming the deputies and other parties and accusing them of violating the Fourth Amendment right to be free from unreasonable searches and seizures. The District Court granted summary judgment to all named defendants. The Court of Appeals for the Ninth Circuit reversed, concluding both that the deputies violated the Fourth Amendment and that they were not entitled to qualified immunity because a reasonable deputy would have stopped the search upon discovering that respondents were of a different race than the suspects and because a reasonable deputy would not have ordered respondents from their bed. We grant the petition for certiorari and reverse the judgment of the Court of Appeals by this summary disposition.

Incidentally, Justice Stevens’s concurrence takes a much more sensible position, avoiding the constitutional question, although one that non-lawyers may find a bit technical.

Navy VA Hospital Accused of Pervasive Religious Bias

The Navy Times has an odd and disturbing report, Navy vet: Chaplains tried converting me:

Navy veteran David Miller said that when he checked into the Veterans Affairs Medical Center in Iowa City, he didn’t realize he would get a hard sell for Christian fundamentalism along with treatment for his kidney stones.

Miller, 46, an Orthodox Jew, said he was repeatedly proselytized by hospital chaplains and staff in attempts to convert him to Christianity during three hospitalizations over the past two years.

He said he went hungry each time because the hospital wouldn’t serve him kosher food, and the staff refused to contact his rabbi, who could have brought him something to eat.

…

He described the Iowa City facility as an institution permeated by government sponsorship of fundamentalist Christianity and unconstitutional discrimination against Jews.

There have been a disturbing number of stories during this administration of religious zealotry gone wild in the Army (Lt. Gen. Boykin), Air Force (the the Air Force Academy scandal), and now the Navy version. I can’t recall hearing nearly as much of this in any prior administration.

Antidisestablishmentarianism at the Department of Defense

It seems that the ‘the USA is a Christian nation’ types have been helping the Defense Dept. write textbooks for Junior Reserve Officers Training Corps (JROTC). So at least argues Talk To Action | Reclaiming Citizenship, History, and Faith, The Department of Defense — Bringing Historical Revisionism to a High School Near You.

It sounds convincing, although I haven’t sought to do original research to check it out. [Update: I should add that the part about Jefferson is consistent with what I’ve read elsewhere — it’s the DoD part that I’m taking on faith.]

(And, yes, I know that “antidisestablishmentarianism” originally referred to the reaction against British proposals to disestablish the Church of England, not to the disestablishment of the churches in colonial and post-revolutionary America, but I’m assured it now has a more general meaning also.)

The 'Unitary Executive' Theory of Presidential Royalism Reappears to Justify Warantless Wiretapping (Purely Theoretical of Course)

Buried deep in today’s print edition, nowhere to be found on the front of the web page, is this little jem gem from the New York Times: Administration Pulls Back on Surveillance Agreement:

Senior Bush administration officials told Congress on Tuesday that they could not pledge that the administration would continue to seek warrants from a secret court for a domestic wiretapping program, as it agreed to do in January.

Rather, they argued that the president had the constitutional authority to decide for himself whether to conduct surveillance without warrants.

…

During a hearing Tuesday of the Senate Intelligence Committee, Mr. McConnell was asked by Senator Russ Feingold, Democrat of Wisconsin, whether he could promise that the administration would no longer sidestep the court when seeking warrants.

“Sir, the president’s authority under Article II is in the Constitution,” Mr. McConnell said. “So if the president chose to exercise Article II authority, that would be the president’s call.”

So I guess the previous promise is now inoperative?

It seems to me that when confronted by this kind of aggressive nonsense, a wise Senator would at least extract a promise from the bureaucrat testifying that he’d resign if it ever happened. That should, at minimum, figure in the confirmation hearings of every Justice Department official from now on.

And we may be having a number of those hearings.

Recall that at the heart of all this is the far-far-right claim that the Constitution gives the President the powers of a King. It’s really as extreme as that. I wrote an article about this a long time ago, The Imperial Presidency’s New Vestments, 88 Nw. L. Rev. 1346 (1994), if you want to know more.

Is the Special Counsel Constitutional? Only Probably.

The Office of the Special Counsel that I wrote about in Office of Special Counsel Stirs from its Torpor is an independent agency headed by an official appointed according to 5 USC § 1211(b):

The Special Counsel shall be appointed by the President, by and with the advice and consent of the Senate, for a term of 5 years. The Special Counsel may continue to serve beyond the expiration of the term until a successor is appointed and has qualified, except that the Special Counsel may not continue to serve for more than one year after the date on which the term of the Special Counsel would otherwise expire under this subsection. The Special Counsel shall be an attorney who, by demonstrated ability, background, training, or experience, is especially qualified to carry out the functions of the position. A Special Counsel appointed to fill a vacancy occurring before the end of a term of office of the Special Counsel’s predecessor serves for the remainder of the term. The Special Counsel may be removed by the President only for inefficiency, neglect of duty, or malfeasance in office. The Special Counsel may not hold another office or position in the Government of the United States, except as otherwise provided by law or at the direction of the President.

There’s some question as to whether this statute is constitutional; if it isn’t, then the whole office is unconstitutional and all its acts could be declared void.

In Morrison v. Olson, 487 US 654 (1988), the Supreme Court considered the office of the other special counsel — the special prosecutors we no longer have because the statute sunsetted and was not renewed. That office differed from this one in two important ways.

First, the old special prosecutor was located in the Justice Department, and nominally responsible to the Attorney General. That fact allowed the Supreme Court to classify the Special Prosecutor as an “inferior officer of the United States” (who if Congress so chooses can be appointed by a court, or by the President alone, or by an Officer of the United States), as opposed to a more important official, like a Cabinet Secretary who, being an “Officer of the United States”, can only be appointed by the President, by and with the consent of the Senate. There’s little doubt that the Special Counsel here, the head of a free-standing agency, would count as an “Officer of the United States” — and that since he’s appointed in conformity with the Appointments Clause, that’s not a Morrison problem.

Rather, the potential problem is the second difference: the two removal clauses.

The Special Counsel may be removed by the President only for inefficiency, neglect of duty, or malfeasance in office.

Contrast this to the removal provision approved (for an inferior officer) in Morrison:

An independent counsel appointed under this chapter may be removed from office, other than by impeachment and conviction, only by the personal action of the Attorney General and only for good cause, physical disability, mental incapacity, or any other condition that substantially impairs the performance of such independent counsel’s duties.

(The statute also contemplated possible removal proceedings by the same judicial panel that appointed the Special Prosecutor, but the Supreme Court in Morrison chose to read that power very narrowly — limited to recognizing when others informed it that the job was done — to avoid what the Court thought would otherwise be probable violations of the separation of powers.)

In approving the second removal provision in Morrison, the Supreme Court explained the factors it found relevant:

the real question is whether the removal restrictions are of such a nature that they impede the President’s ability to perform his constitutional duty, and the functions of the officials in question must be analyzed in that light.

Considering for the moment the “good cause” removal provision in isolation from the other parts of the Act at issue in this case, we cannot say that the imposition of a “good cause” standard for removal by itself unduly trammels on executive authority. There is no real dispute that the functions performed by the independent counsel are “executive” in the sense that they are law enforcement functions that typically have been undertaken by officials within the Executive Branch. As we noted above, however, the independent counsel is an inferior officer under the Appointments Clause, with limited jurisdiction and tenure and lacking policymaking or significant administrative authority. Although the counsel exercises no small amount of discretion and judgment in deciding how to carry out his or her duties under the Act, we simply do not see how the President’s need to control the exercise of that discretion is so central to the functioning of the Executive Branch as to require as a matter of constitutional law that the counsel be terminable at will by the President.[FN31]

[FN31. We note by way of comparison that various federal agencies whose officers are covered by “good cause” removal restrictions exercise civil enforcement powers that are analogous to the prosecutorial powers wielded by an independent counsel. See, e.g., 15 U.S.C. § 45(m) (giving the FTC the authority to bring civil actions to recover civil penalties for the violations of rules respecting unfair competition); 15 U.S.C. §§ 2061, 2071, 2076(b)(7)(A) (giving the Consumer Product Safety Commission the authority to obtain injunctions and apply for seizure of hazardous products).]

Nor do we think that the “good cause” removal provision at issue here impermissibly burdens the President’s power to control or supervise the independent counsel, as an executive official, in the execution of his or her duties under the Act. This is not a case in which the power to remove an executive official has been completely stripped from the President, thus providing no means for the President to ensure the “faithful execution” of the laws. Rather, because the independent counsel may be terminated for “good cause,” the Executive, through the Attorney General, retains ample authority to assure that the counsel is competently performing his or her statutory responsibilities in a manner that comports with the provisions of the Act.

In addition to what it called the limited scope, duration, and discretion of the Special Prosecutor, the Court also pointed to two other factors:

…this case does not involve an attempt by Congress to increase its own powers at the expense of the Executive Branch.

…we do not think that the Act works any judicial usurpation of properly executive functions

How does the removal provision for this Special Counsel stack up to the Morrison test?

I’m going to take it as given that this special counsel’s function is no greater an usurpation of the President’s powers than that of the special prosecutor in Morrison (without taking a position on how big an usurpation that is — Justice Scalia’s Morrison dissent argues passionately that it is enormous). The only argument that I can see for the proposition that the current Special Counsel is a greater threat to the President’s powers is that the office is permanent; the Supreme Court noted that the special prosecutor was only temporary. In hindsight, given that Special Prosecutor David Barrett’s investigation of Henry Cisneros consumed $21 million dollars and more than ten years’ investigation but produced only a misdemeanor conviction (later pardoned), the distinction may seem academic at best. Indeed, the Special Counsel only has a five year term, arguably making his tenure more limited…)

On the one hand, since the Special Counsel is an “Officer,” rather than an “inferior officer” like the Special Prosecutor, the stakes are higher, and the requirement for Presidential control might be higher too. It follows that any removal provision that reduces the President’s powers below that which the Attorney General enjoyed in Morrison are very likely to be unconstitutional; indeed even a removal provision as limited as that in Morrison might limit the President’s removal power too severely for the Court unless footnote 31 quoted above is seen as controlling approval in dicta. And of course, given how reluctant the court seemed in Morrison, it is hard to imagine that a much a narrower removal provision would pass muster.

So which of these two statutes gives the removing authority less power:

• removal for “good cause, physical disability, mental incapacity, or any other condition that substantially impairs the performance of such independent counsel’s duties,” or
• removal “for inefficiency, neglect of duty, or malfeasance in office.”

If you think the top statute, Morrison’s, gives more removal power than the second one, then the Special Counsel law is almost certainly unconstitutional. If you think they are about the same, it’s a hard call given the different nature of the jobs, but the Special Counsel might be OK. If you think that the second list more greatly empowers the removing authority (i.e. applies to a broader set of circumstances) than the top, then there’s probably nothing for the Special Counsel to worry about.

My own view is that the difference between “good cause” and “inefficiency, neglect of duty, or malfeasance in office” is not very great. Thus, given the case law to date, this seems like a hard case to me, but one where the Special Counsel might squeak through on the strength of footnote 31’s approving dicta. On the other hand, were the Supreme Court to decide in light of experience that Justice Scalia was right in Morrison — which after Ken Starr and David Barrett is a view now shared by many — this statute (and several others which create independent agencies) might just be for the chop.

Times Update (& More About the Belknap Case)

Well, the NYT has silently corrected the online version of the Stolberg story I complained about this morning in my posting “Times Reporter Forgets That Gonzales is Impeachable”. When I correct stuff here (more than five minutes after posting it), I indicate the changes with strikeout or “update”. The online NYT seems to operate by different rules. Something to keep in mind when citing it.

The old version can (for the moment at least) be viewed at the International Herald Tribune.

Meanwhile, I’ve found an interesting article by John Dean which discusses the (hitherto unknown to me) details of the impeachment of Secretary of War William Belknap,

Impeachment of Secretary of War William Belknap, in the aftermath of the Civil War, is the only precedent for using these proceedings against subordinate executive officers. Belknap was said to be involved in a kickback scheme involving military contracts. Just hours before the House was to vote to impeach him, Belknap resigned. Nonetheless, on March 2, 1876, the House impeached the former cabinet officer, and the five articles of impeachment were presented to the Senate.

The Senate trial lasted five months. (Today, such a trial would likely be handled by a trial committee of twelve senators, with a final debate and vote by the full Senate.) A central issue in the Belknap case was whether his resignation had terminated the jurisdiction of the Congress, and whether impeachment was still appropriate when his removal was no longer at issue. The Chairman of the House Judiciary Committee, Representative J. Proctor Knott, who was trying the case before the Senate, explained the controversy as follows:

“Was the only purpose of this disqualification simply to preserve the Government from the danger to be apprehended from the single convicted criminal?” Knott rhetorically asked. “Very far from it, sir. That in reality constituted but a very small part of the design. The great object, after all, was that his infamy might be rendered conspicuous, historic, eternal, in order to prevent the occurrence of like offenses in the future. The purpose was not simply to harass, to persecute, to wantonly degrade, or take vengeance upon a single individual; but it was that other officials through all time might profit by his punishment, might be warned by his political ostracism, by the ever-lasting stigma fixed upon his name by the most august tribunal on earth, to avoid the dangers upon which he wrecked, and withstand the temptations under which he fell; to teach them that if they should fall under like temptations they will fall, like Lucifer, never to rise again.”

By two votes, Belknap escaped conviction in the Senate. Had he not resigned, however, there is little question he would have