Category Archives: Law: Constitutional Law

Peter Shane Explains What Happens If the Money Runs Out

Posted on July 20, 2011 by Michael Froomkin

An obvious question, should Congress not manage to fend off default within the next two weeks, is: What does the President do then? If the President cannot pay off America’s creditors and keep all government programs running, what legal authority does he have to deal with the crisis?

Answers at What May a President Do if He Cannot Pay Our Bills Without Borrowing and Borrowing More Money is Unlawful?.

The bottom line is that the President has a pretty free hand to “defer” any spending he wants — an ironic given decades of Congressional attempts to stamp out claimed executive “impoundment” authority and force Presidents to spend as directed by Congress.

The only thing I’d add to Peter’s story, which is worth a look, is an historical note: the 19th Century budget process also relied on something called the Anti-Deficiency Act (which still exists in somewhat amended form. The basic idea behind the early versions, was that if anyone in Treasury paid any expenditure not authorized by law (which then meant an appropriation), the official risked being personally liable for any overpayment.

Posted in Econ & Money, Law: Constitutional Law | Comments Off on Peter Shane Explains What Happens If the Money Runs Out

In Which I Sort of Defend Rep. Allen West from a Charge of Illegal Flag-Wetting

Posted on June 17, 2011 by Michael Froomkin

The Daily Pulp accused Rep. Allen West of violating the law against letting the US flag get when when he took a flag Scuba diving in order to be photographed planting it on a reef.

It seems Politifact had nothing better to do than to consider this important question, and in the process of exhaustively considering it, they gave me a call. You can see their report at Bloggers say West violated federal law by diving with American flag, in which they rate the claim as “False”.

Which is sort of true. It’s certainly true that there is a zero percent chance that anyone would be prosecuted for taking a flag underwater, as the US Supreme Court has ruled that a statute (18 U.S.C.A. § 700) banning flag burning was unconstitutional. United States v. Eichman, 496 U.S. 310 (1990), and earlier Texas v. Johnson, 491 U.S. 397 (1989). From the flag burning decisions it surely follows that any attempt to prosecute someone for violating 4 USC § 8 by taking a flag under water would fail. [We won’t even discuss the question of submarines’ hulls…]

In any case there appears to be no legal penalty for violating that section (as contrasted to, say, 4 USC § 3, which creates a penalty for using the flag for advertising in the District of Columbia).

Furthermore § 8 is preceded by § 5 which says in part:

The following codification of existing rules and customs pertaining to the display and use of the flag of the United States of America is established for the use of such civilians or civilian groups or organizations as may not be required to conform with regulations promulgated by one or more executive departments of the Government of the United States.

Plus, § 8 (like §§ 5-7) uses the word “should” which also suggests this is not a legally binding rule.

So it’s pretty clear to me that this rule is advisory, or normative, but, not mandatory unless referenced somewhere else in the code, which I don’t believe it is.

This creates the odd (but not unique) circumstance that something can be a violation of a provision in the US Code, yet not a violation of a law that you can actually get arrested or fined for violating. Thus, from an enforcement perspective the rules are, as I told Politifact, an issue of decorum, not law.

Unlike Politifact, though, I’m a bit more sympathetic to the Daily Pulp story, which I’d say was carefully drafted in an attempt to be technically true. The one thing one might question is this sentence: “The Flag Code constitutes federal law, although there is no penalty for breaking this law.” (And I guess the headline too.)

But that just highlight the philosophical question: can you have a “law” that there is no penalty for breaking? If you think that everything in the federal code is “federal law” then the Pulp piece is almost true, subject to the additional complexity that this “law” would be unconstitutional if enforced (it’s not actually unconstitutional only because it is not in fact enforced).

On the other hand, if you don’t buy that — and I think I don’t — then you think the advisory parts are not really “law”. But doesn’t that maybe make the Daily Pulp story maybe “mostly true”. After all, the Daily Pulp article does immediately say the “law” is not an enforceable rule. It’s not as if they falsely suggested Rep. West was facing even a ticket, much less a court date. I’d let them off gently.

On last thought: with coral reefs being endangered, was the flag planting in compliance with environmental law? A quick search suggest it might be so long as the divers didn’t take any coral home with them, nor hit it with a boat.

Posted in Law: Constitutional Law, Politics: US, The Media | 3 Comments

House Republicans Demonstrate Contempt for Constitution

Posted on April 2, 2011 by Michael Froomkin

This headline in the LA Times is wrong: House Republicans pass Government Shutdown Prevention Act.

It should say House Republicans pass unconstitutional budget bill.

The first problem is visible right near the top of the story — although the reporter seems not aware of it.

A portion of the bill sought to ensure that lawmakers and the president have their paychecks cutoff, just like other federal employees, if the two sides failed to reach a budget deal before an April 8 deadline. The provision was similar to one that already passed the Senate.

The rest of the bill was less conventional.

WRONG. It seems our reporter — and the House GOP — has never read the US Constitution. Article I, sect 1, para. 7 states:

The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be increased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them.

So the statute is unconstitutional right there. But it gets worse.

Another section tried to revive a House spending plan that was killed by the Senate last month. Under the resolution passed Friday, the dead bill would come back to life and become law, without the president’s signature, if the Senate does not pass a bill funding the government for the rest of the 2011. The Senate would need to act by Wednesday.

Hello? Bicameralism? Presentment? Chadha anyone?

Every Republican in the House voted for this monstrosity.

Every Republican in the House violated his or her “Oath or Affirmation, to support this Constitution”. As required by Article 6 of the U.S. Constitution. It goes:

“I, (name of Member), do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign or domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter.

Voting for something that is clearly unconstitutional is a violation of this promise. I don’t see what else it can be.

But no one cares. We are now so debased as a Republic that no one bats an eye. What’s left, a Tea Party Senate candidate named Incitatus? (Look it up.)

At least some people knew enough to react with ridicule:

Democrats used the bill as an invitation to mock Republicans’ creative legislative process. Rep. Anthony Weiner (D-N.Y.) brought to the House floor a copy of “House Mouse, Senate Mouse,” a children’s book on how a bill becomes a law that is sold in the House gift shop.

Outrage would be better.

(It doesn’t help that the President committed acts of war on Libya without Congressional permission. While the act was legal under international law as it was authorized by the Security Council, the military action’s conformity to US domestic law rests entirely on the War Powers Act, and only shakily on that. The next Gibbon will have a field day with all this.)

Posted in Law: Constitutional Law, Politics: The Party of Sleaze | 14 Comments

We Write Letters (to the WashPo Ombudsman)

Posted on March 2, 2011 by Michael Froomkin

Just sent this to the Washington Post’s Ombudsman:

Today’s lead editorial on the Al-Kidd v. Ashcroft case blindly repeats a piece of government propaganda that has been decisively falsified in the court proceedings of that very case.

“High Court Should Overturn Kidd v. Ashcroft” begins like this:

ABDULLAH AL-KIDD was arrested at Dulles International Airport in 2003 after purchasing a one-way, first-class ticket to Saudi Arabia.

In fact, testimony and subpoenaed airline records establish that Al-Kidd had a round-trip coach ticket. The government’s false statement — originally made to the court to justify arresting him — misled the court and it is this very pattern of government misrepresentations that played a significant role in the judicial turn against immunity which the Post (in my opinion wrongly) critiques. The Post’s error is no mere detail but serves as means of obfuscating — avoiding — the central facts that undermine the argument the Post wishes to make.

I guess if you use fake facts it’s easier to write editorials in favor of unlimited and un-accountable state power to detain US citizens (AP: “Over the next 16 days he would be strip-searched repeatedly, left naked in a jail cell and shower for more than 90 minutes in view of other men and women, routinely transported in handcuffs and leg irons, and kept with people who had been convicted of violent crimes. On a long trip between jails, a federal marshal refused to unlock al-Kidd’s chains so he could use the bathroom.”).

No mere factual correction can fix this problem since that would fail to make clear that the factual change undercuts the entire logic of the editorial, but I have never yet seen a correction which makes such an admission, and don’t have much hope here.

The question for you, though, is this: how could the Post allow someone to write an editorial on such an important matter who isn’t even aware of one of the better-known facts of the case? And who doesn’t then check the facts. Or read the AP feed on the subject (2/27/11) which in addition to summarizing the vile conditions of confinement in which the government held Al-Kidd states,

But the sworn statement the FBI submitted to justify the warrant had important errors and omissions. The $5,000 one-way, first-class seat that the agents said al-Kidd purchased was, in reality, a coach-class, round-trip ticket. The statement neglected to mention that al-Kidd had been cooperative or that he was a U.S. citizen with a wife and children who also were American.

In other words, the accurate facts were and are no secret: it almost takes work to avoid them.

And one more question for you: even as the Post preaches a doctrine of no-accountability for government officials who lie about and mistreat US citizens, does it practice a similar doctrine of non-accountability for editorialists who get basic, key, facts this badly wrong? Or will there be some internal sanction?

Update:

I got this auto-reply a little while later:

I will be out of the office starting 01/31/2011 and will not return until 12/31/2011.

Thanks for writing. My two year term as ombudsman has ended and a replacement will be named soon. In the meantime, if you have questions or concerns about news coverage, I’d suggest you e-mail or call the appropriate department in the newsroom. Among them:

Local: 202-334-7300 metro@washpost.com
National: 202-334-7410 national@washpost.com
Business: 202-334-7320 business@washpost.com
Sports: 202-334-7350 sports@washpost.com
Foreign: 202-334-7400 foreign@washpost.com
Style: 202-334-7535 style@washpost.com
Obituaries: 202-334-7389 newsobits@washpost.com
Book World: 202-334-7882 bookworld@washpost.com
Food: 202-334-7575 food@washpost.com
Health: 202-334-5031 health-science@washpost.com
Travel: 202-334-7750 travel@washpost.com
Photo/video: 202-334-7380
Graphics: 202-334-7380
Post Main Number: 202-334-6000

A variety of other contact information, including e-mail links to reporters and editors, is provided through this page on The Post’s Web site: http://www.washingtonpost.com/wp-srv/contactus/index.html

Letters to the Editor should be addressed to: letters@washpost.com

For circulation or delivery issues, call the subscriber services department at 202-334-6100, or homedelivery@washpost.com

-Andy Alexander

So it looks as if the Post has been Ombudsless for a month (suggesting that filling the job is not a priority, or perhaps no one good wants to touch the job with a ten foot pole). And also that the Obmudsman role doesn’t extend to editorials. I don’t know that there’s much point in sending this in as a letter to the Editor. They’ll just chop it to bits even if they run it.

Update 2: More on the Post and Ombudspersons at The Washington Post Says It has an Ombudsman.

Posted in Law: Constitutional Law, National Security, The Media | 1 Comment

Is the Florida State Legislature in the Grip of “Nutbags”?

Posted on January 22, 2011 by Michael Froomkin

Gimleteye over at Eye on Miami sounds like he is losing it in Nutbags Running The Florida State Legislature: The Cuckoos Nest:

Is the Florida Legislature an insane asylum run by high functioning mentally ill, or, is it a barely legal, criminal syndicate protected by corporate-run political action committees? Whatever, legislators and lobbyists are baying at the moon– these are the business interests– the Florida Chamber of Commerce, Associated Industries and jack-ass-in-chief Barney Bishop, Big Ag ie. Big Sugar– promoting legislation that says, in fact, Florida has to live in the stinking mess it created; this sea of pollution that rings the state.

What’s driven Gimleteye so berserk is that the legislature is considering HB 239 which reads in part in section 55(1):

The department, water management districts, and all other state, regional, and local governmental entities may not implement or give any effect to the United States Environmental Protection Agency’s nutrient water quality criteria rules for the state’s lakes and flowing waters, finalized on December 6, 2010, and published in Volume 75, No. 233 of the Federal Register, in any program administered by the department, water management district, or governmental entity.

In other words, the author of this bill, and what Eye on Miami tells us are its powerful supporters, seem to be in the grip of willful ignorance of the Supremacy Clause, Article 6, Sec. 2, of the US Constitution. Or they are just ignoring it. Isn’t this in fact either insanity or insurrection (which is also probably insane, especially in order to help polluters)?

No doubt someone will respond that what we have here is symbolic resistance, and not to get too fussed about it. That the legislators thus violate their oath to “support, protect, and defend the Constitution and Government of the United States” is, this view suggests, a fusty 19th-century view of public obligation and civic rectitude.

I disagree. I think that this sort of unprincipled proposal is enough to drive anyone who cares about this country — or this state — ’round the bend.

Note: I am aware that sec. 55(2) of HB 239 purports to restore a degree of regulatory authority to the state regulatory authorities:

Notwithstanding subsection (1), the department may adopt numeric nutrient water quality criteria for a particular surface water or class of surface waters if the department  determines that such criteria are necessary based on historic and projected nutrient loading trends, existing and forthcoming technology-based nutrient reduction measures, and existing and forthcoming water quality restoration and protection programs applicable to the surface water or class of surface waters.

And that it further qualifies it in 55(3):

(b) The site specific numeric nutrient water quality criteria established pursuant to this subsection are:
1. Not effective if the United States Environmental Protection Agency disapproves, approves in part, or conditions its approval of the criteria.

You could, I suppose, read these qualifications as an invitation to the agency to employ a back door to spontaneously come up with its own standards that ‘just happen’ to track what the EPA wants, or can be persuaded to accept, thus avoiding the constitutional problem. And perhaps it will be sold to legislators that way (although I think other readings are possible too). But that sure isn’t how it would be sold to the public.  And frankly, I think this would be an invitation for a Catch-22 legal challenge claiming, likely plausibly, that the agency had secretly and illegitimately considered the very EPA criteria it was forbidden to enact. Thus, even if the agency were to open the back door it would just reap a long court challenge and garner a likely loss at the end — thus, bottom line, no regulation at all.

Gimleteye may be on to something here, at least if this thing passes.

Posted in Florida, Law: Constitutional Law | 1 Comment

Mandatory Gun Insurance?

Posted on January 14, 2011 by Michael Froomkin

The free-market approach to gun control over at Crooks and Liars seems pretty clever: A Modest Proposal: What If We Required Mandatory Gun Insurance?

Combine this with strict liability for misuse of a weapon — liability which resides with the manufacturer and/or distributor if they fail to make sure that the purchaser is insured, on the insurance company if they allow a policy to lapse without evidence that someone else has provided the insurance or the gun has been sold or destroyed, and on the purchaser if the next in chain of title is not insured, and pretty soon we might be getting somewhere.

Posted in Law: Constitutional Law, Law: Criminal Law | 36 Comments