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While I don't have thoughts on the substantive merits of Heller [FN1], David's comment on the Cheney brief's implications for the unitary executive raises an issue that's interested me greatly. Simply put, I don't think that the vice president's support of the theory of the unitary executive is at odds with his filing a separate brief in Heller.
1. Cheney May Well Be Right: The Vice President Isn't Part of the Executive Branch: As a preliminary matter, I must say that I tend to agree with the office of the vice president's position that the vice president isn't part of the executive branch. In fact, I think you would have been greeted with outright laughter from Vice Presidents Jefferson, Burr, or Calhoun if you had suggested anything to the contrary. Elected by the people-not appointed by the president-their office exists separate from the presidency. The vice president is not merely another executive branch officer subject to presidential dismissal.
Article II of the Constitution vests in the president "the executive power." It does not identify, however, the affirmative powers of the vice president-his only specifically identified power, other than his role in succession, is Article I's designation of the vice president as the president of the Senate. True, Article II does mention the possibility of vice presidential impeachment, and that may weigh against my point, but discussion of one branch in "another branch's Article" isn't unprecedented: The Senate's advice-and-consent power is found in Article II.
Looking back at the earliest Senate: If I recall correctly, Sen. Maclay's journal (which, I'll admit, I haven't read since law school) depicted John Adams as primarily a legislative official and only marginally part of the executive branch. In fact, the very opening sequences of Maclay's journal offer us Adams's own interpretation of the nature of his office, as he fretted over his role in the Senate during President Washington's imminent visit:
Gentlemen, I feel great difficulty how to act. I am possessed of two separate powers: one in esse and the other in posse. I am Vice-President. In this I am nothing, but I may be everything. But I am president also of the Senate. When the President comes into the Senate, what shall I be?
Sen. Ellsworth, himself no stranger to the framing of the Constitution, responds:
Mr. President, I have looked over the Constitution (pause), and I find, sir, it is evident and clear, sir, that wherever the Senate are to be, there, sir, you must be at the head of it. But further, sir (here he looked aghast, as if some tremendous gulf had yawned before him), I shall not pretend to say.
In short, from this account Adams, Ellsworth, and the others appear to see the vice president's express duties to be almost wholly legislative, with his relationship to the president much less clearly defined.
Adams' view of the vice president as standing apart from the executive branch is all the more manifest in his correspondence, some of which is quoted on the Senate's Web site:
For his own part, Adams professed a narrow interpretation of the vice president's role in the new government. Shortly after taking office, he wrote to his friend and supporter Benjamin Lincoln, "The Constitution has instituted two great offices ... and the nation at large has created two officers: one who is the first of the two ... is placed at the Head of the Executive, the other at the Head of the Legislative." The following year, he informed another correspondent that the office of vice president "is totally detached from the executive authority and confined to the legislative."
Now, I would hesitate before going so far as to say that the vice president is the "Head of the Legislative" branch. I've not researched this issue in terribly great depth and happily defer to the experts. That said, it seems to me plausible that the office of the vice president, created largely to rectify the problem of strategic voting in the presidential election, is simply sui generis.
2. Cheney's Solo Brief Doesn't Contradict His Support of the Unitary Executive: Cheney's decision to act independently of the president in Heller only contradicts the theory of the unitary executive if you presume that the vice president is part of the executive branch.
More broadly, I don't see inconsistency in Cheney's support of the unitary executive while he is not, himself, part of the executive branch. While a member of the legislative branch (as the congressman from Wyoming), Cheney advocated the president's inherent power on the question of foreign affairs (as demonstrated in the Iran-Contra report's "minority views"). Arguing the executive branch's authority at the expense of his own branch's authority made clear enough his commitment to presidential authority. Indeed, that situation was much more paradoxical than is his support of the unitary executive while serving as a vice president with unparalleled access to the President.
3. So Why Did He Sign His Brief "President of the Senate"? If Cheney agreed with all of the above discussion, then he'd have felt comfortable submitting his own amicus brief under his proper title, "The Vice President." Why, then, did he sign it not with that title but, rather, with the title of "President of the Senate"? There, he loses me. Perhaps he did it merely for rhetorical emphasis. It seems to me, however, that he should have just signed it "Vice President."
Again, John Adams considered this issue. Maclay's journal discusses the debate surrounding the way in which Adams was to sign a bill for transmittal to the president. After initially agreeing to sign it as "President of the Senate," he changed his mind:
"I have, since the other day, when the matter of my signing was talked of in the Senate, examined the Constitution. I am placed here by the people. To part with the style given me is a dereliction of my right. It is being false to my trust. Vice-President is my title, and it is a point I will insist upon." He then addressed the Senate again, and with great positiveness told them that he would sign it as Vice President of the United States and President of the Senate.
Adams' approach strikes me as the right one: His office was that of the vice presidency; thus, his title was, at all times, vice president. True, he served as president of the Senate, but those constitute two "offices" no more than the president separately and simultaneously serves as both "president" and "commander in chief."
Cheney should have done likewise: He should have signed his brief as "vice president" or, at the very least, "vice president of the United States and President of the Senate." To do so is not at all inconsistent with the theory of the unitary executive; rather, it reflects the nature of the vice presidency as not being subsumed within the executive branch.
[FN1] Comment on Heller would be particularly inappropriate in light of the fact that one of my bosses authored a brief in that case. On that point, now's as good a time as any to stress that nothing I have said or will say on this blog represents the views of my employer or my employer's clients. Indeed, only an utter moron would think that my firm would send a midlevel associate to be its spokesman on a blog. My thoughts are mine alone, for better or for worse.
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Akhil Amar’s analysis of Heller is unlikely to persuade any justices doctrinally, but it captures the cultural point that will decide this case.
According to Amar, the Second Amendment had to do with militias, so it doesn’t create an individual right. However, he doesn’t think that ends the question. The Ninth Amendment states that “the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” In other words, the Constitution’s list of rights is not exhaustive, which is to say that there are unenumerated rights. Sidebar: I’ve always wondered why progressives don’t make more use of the Ninth Amendment. Yes, it proves too much, but it’s at least a helpful textual reminder that text isn’t everything.
I nonetheless doubt any of the justices will go for Amar’s approach. Justices detect (or invent) unenumerated rights as a last resort. Justice Peckham finds the freedom to contract in Lochner in the due process clause because he can’t find it anywhere else (precedent having gotten in the way of him using the Contracts Clause). Poor Justice Douglas comes up with his penumbra theory in Griswold to escape the charge of Lochner-izing. And yes, Amar's hero Justice Harlan probably deserves our respect for baldly stating that there are unenumerated rights. But we should sympathize with the fact that justices—then or now—are not lightly going to cast aside their best shield against the countermajoritarian difficulty—the text of a supermajoritarian document.
Unlike the word privacy, the word arms does occur in that document. Better still for those with who fear the great silences of the Constitution, contrary interpretations of that text can pass the laugh test. The amendment consists of a prefatory clause, “A well regulated Militia, being necessary to the security of a free State,” followed by an operative clause, “the right of the people to keep and bear Arms, shall not be infringed.” The collectivist argues the prefatory clause limits the scope of the operative one. The individualist says the former provides a sufficient, but necessary, ground for the latter. This is not to say Amar is wrong (always a dangerous thing to do). But he’s not so right that he can stop fish from swimming, birds from flying, or textualists from parsing.
While I doubt a single Justice will be swayed by the Ninth (or 14th) Amendment arguments Amar makes, I think the analysis suggested by Justice Harlan holds the key to this case. Using Harlan’s approach, Amar correctly argues, would direct us to “the actual pattern of lived rights in America—what the people have, in fact, done.” This is a question of constitutional culture. It would have to be, if Harlan’s approach were not to be hopelessly open-ended.
Because the swing justices have enough textual cover to argue in either direction, their decision-making will turn on constitutional culture. Specifically, it will turn on whether we have a national gun culture or not. If we do, the individualists will win; if we don’t, they will lose.
I’m reminded here of the opinion in Dickerson v. United States, in which the court held the Miranda warning had a Constitutional dimension. I was surprised to see Chief Justice Rehnquist penning that opinion until he just broke down and said that the warning had become “part of our national culture.” Then it made sense—there is no way that we could get rid of the warning after so many seasons of Law and Order and shoot-'em-up movies. Even without text to cover their tracks, the court capitulated to the inevitable. This was not Congress as a co-equal constitutional interpreter. It was Hollywood.
Of course, the court doesn’t always use its magic to transform what people think is true about the Constitution into reality. Lots of people think they can assert free speech rights against private actors, like employers, but I’m not expecting a 13th Amendment approach to the First Amendment anytime soon. But I expect Heller to win, with a majority of the court holding that there is an individual right to bear arms with a moderated level of scrutiny.
Maybe that’s because I’ve logged significant time in countries—like Japan and England—with gun control. In Japan, police officers don’t say, “Stop or I’ll shoot!” They say, “Stop or I’ll yell ‘Stop’ again!” (That’s a joke, but it might even work.) As for Britain, here’s the former head of the fire arms intelligence unit at Scotland Yard: “In America, you have a gun culture. You can’t deny it. It’s written into your Constitution. In Britain ... it’s a very small subculture now.”
What’s at issue in this case is whether he’s right.
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Regarding Dahlia's post, Mukasey's comments were unwise but not hard to understand. Death is the supreme punishment for an ordinary criminal, but it is also the supreme test for people who seek to live up to their ideals. We would not remember Nathan Hale today if he had received a prison term ("I regret that I have but 30 years to give to my country"). The confusion here is that Americans see the 9/11 plotters as ordinary criminals, while the plotters see themselves as making a sacrifice for the sake of a higher ideallike soldiers who undertake a suicide mission. The death penalty (for those not opposed to it) vindicates our beliefs and theirs. Life imprisonment would diminish both. No punishment would allow us both to vindicate our ideals and to prevent them from vindicating theirs, possibly enhancing their stature among like-minded believers. No such conflict exists for ordinary crimes. Hence Mukasey's puzzlement.
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[Orin Kerr]
During this morning's Supreme Court oral argument in Rothgery v. Gillespie County, Justice Scalia had an interesting exchange with Rothgery's lawyer, Danielle Spinelli, about the consequences of the exact moment that a right to counsel attaches in a criminal case. Spinelli was arguing that a criminal defendant gets a right to counsel after the preliminary hearing, and Scalia wanted to know if that meant that a lawyer actually had to be appointed at that moment.
Specifically, Justice Scalia wanted to know if the attachment of the right to counsel meant that a lawyer must be appointed, or if it only meant that a lawyer must be appointed if any important proceedings occur. During the exchange, Scalia explained why he thought this mattered: "If I think that counsel has to be appointed right away ... I'm going to give a different answer to the first question [of when the right attaches]. But if I know that counsel doesn't have to be appointed until the prosecution proceeds to some significant phase where an attorney would be-would be really helpful, then-then I can-I can be quite more sympathetic to your-to your argument [that the right to counsel attaches right after the hearing.]"
Kind of a pragmatic argument for a self-described originalist Justice, it seems to me.
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On the David/Emily/Dahlia/Orin chat about how many are minding the unitary executive's store in selling the Heller case to the court, I agree with Orin's speculation that there are certainly some (conservative) base politics at work here in the VP's amicus brief. But the visible inelegance with which this particular operation has been carried out smacks more of a lame-duck executive than a binary (much less unitary) one. Could just be me, but I've had the increasing impression that there's no one in particular minding the executive's store these days. Rove and other first-order appointees have by now left in large numbers, the president is busy tap dancing about the economy (and apparently other matters as well), and it's not yet clear that Judge Mukasey has anyone's attention internally, given the relative silence in response to his announced opposition to the death penalty for the handful of Guantanamo detainees actually accused of involvement in the 9/11 attacks. I hasten to add that my comments here are, in keeping with my worst fears of the blogosphere, without basis in any actual information about any of the relevant internal decision-making. I'd thus gladly defer to Marty, Dawn, Walter, or any of those who've engaged DoJ/SG processes first hand. Setting aside our unusual vice president's office these days, who should be engaged in making such calls?
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What do you all make of Attorney General Michael Mukasey’s reported comments in London last week that the 9/11 plotters the Pentagon will be trying at Guantanamo Bay should not be executed even if they’re convicted? These are the same terrorists who’ve been charged with capital crimes. Our friend Doug Berman is not amused. He finds Mukasey’s rhetoric particularly offensive in that the AG compared the terrorists to masochists and the American prosecutors to sadists.
“Because many of them want to be martyrs, and it's kind of like the conversation … between the sadist and the masochist. ... The masochist says hit me and the sadist says no, so I am kind of hoping they don't get it.”
I am hesitant to read too, too much into Mukasey’s comments as I suspect he was just trying to be clever and perhaps this is what passes for a charm offensive when Bush administration officials visit Europe these days. I know Doug disagrees with me. And it certainly is less than smart for the AG to undermine the capital prosecution at Gitmo in the eyes of the world. Thoughts?
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In her post below on the news of squabbling within the administration over its Heller brief, Dahlia asks, "I’d give a donut to anyone who can offer insight on what end is served by these attacks from within the administration and without. What point in making Solicitor General Paul Clement look like a wild man on the eve of oral argument?"
Here's my guess: I think the goal was to keep the base happy. To draw an imperfect analogy, gun rights are to the right what abortion rights are to the left. Given that, DoJ's middle-ground brief in Heller is the conservative equivalent of a hypothetical brief from a future Obama administration arguing that Roe v. Wade should be watered down a lot but just not completely overruled. In both cases, activists would feel that their "home" administration has basically abandoned them. They would get pretty angry, and in the case of DoJ's Heller brief, they have.
By giving Novak the story of a divide inside the administration, the leakers tell the base that President Bush didn't really abandon them. The middle-ground brief wasn't Bush's fault, the column says: Blame those lefty career lawyers, not GWB. That's my guess, at least.
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continue reading at Balkinization . . .
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David I had a little fun with the exploding unitary executive last week as did Marty and I’d give a donut to anyone who can offer insight on what end is served by these attacks from within the administration and without. What point in making Solicitor General Paul Clement look like a wild man on the eve of oral argument? Why was Bob Novak at pains to explain that Alan Gura – who represents the gun owners tomorrow – does not have the confidence of gun owners or any experience at the high court? I get that it has something to do with managing expectations. But this tactic of blaming the lawyers in advance of the argument can’t look good to the justices can it?
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I am an unlikely blogger. I am a United States District Court judge for the District of Massachusetts. I have been a judge since 1994, and have taught Sentencing at the Yale Law School for the past nine years. (Emily Bazelon, in fact, was in my class!) I have taught discrimination law, and evidence law at Harvard, BU and a number of other school. I have travelled internationally training judges and advocates in human rights law. And I am an intermittent op-ed writer about issues involving punishment, prosecution policy, gender discrimination, etc. Although judges are more limited than other public actors in what they can say about a host of things, like cases pending before me or even cases pending before other judges, we are permitted to speak about the administration of justice and other general legal matters. To me, the issue goes beyond what we are "permitted" to comment about and what we are not "permitted" to comment about. I think judges have a responsibility to participate in the public debate and that's what I hope to do here -- all consistent with, indeed enhancing, my "day" job.
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[Doug Kmiec]
Oh, Second Amendment, we hardly knew ye.
The Second Amendment has two main parts: a preamble and an operative provision. The preamble: "a well regulated militia, being necessary to the security of a free state," is a statement of purpose. The operative provision: "the right of the people to keep and bear arms, shall not be infringed” is a provision that employs a collective "the people," and in this, it would not seem well-suited to convey the idea of an individual right.
This was the interpretation more or less given the Second Amendment by the Supreme Court in United States v. Miller in 1939. The court concluded that the possession or use of a short-barreled shotgun had no reasonable relationship to the preservation or efficiency of well-regulated militia, and therefore, the Second Amendment posed no limitation to its federal restriction.
Fast-forward to 2008—does the Miller opinion and the language of the Second Amendment mean that the District of Columbia can preclude the possession of a handgun even within one's home?
The best—but unlikely—answer: This is the District of Columbia and, unlike a state, Congress has plenary authority over it, and an amendment that is a limitation upon congressional power vis a vis the states is of no relevance. End of case, see ya in Salzburg, Tony.
This is not likely the answer since the justices themselves formulated the question granted cert to directly relate to states. “Does [the D.C. law] violate Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes?” If things are going badly for D.C. tomorrow, maybe it might ask politely why the issue as formulated is not an invitation to advisory opinion.
So, what else might the court do? With a total of 69 briefs on file, the court has received plenty of advice with all kind of novel answers. Some fancy footwork from usually reliable originalists would simply disregard the preamble. It adds nothing to the operative provision, they say. Really? What happened to the interpretative admonition to give meaning to every word?
To see the Second Amendment in this structural way is not to make it an odd duck, but to treat it akin to the establishment clause. The establishment clause as originally understood (and before the invention of judicial incorporation) safeguarded state-established churches. In the case of the Second Amendment, what was safeguarded was the ability of the state to call up its citizens for service in the militia with their own guns at the ready. BYOG—see ya down at the square, Festus.
Since no state today expects individual citizens to bring their own weaponry into militia service, what, exactly, does the Second Amendment safeguard now?
Miller might be said to protect the right of citizens to access the kinds of weapons usable in today’s state guard units that are within the customary control of individuals—e.g., handguns and rifles, but not missile launchers and M-16s. This is possible, but the right should only apply if the particular state actually runs their militia BYOG, and given the deficit budget of California, are you listening, Arnold?
Respected Second Amendment scholar and my former OLC colleague Nelson Lund finds a broader right preventing "Congress from using its Article I authorities, including its authority to regulate the militia, to disarm American citizens." Professor Lund reaches this conclusion by conceding that the concern foremost in the minds of the founding generation—fear of a tyrannical federal government—has subsided, and in any case, an armed citizenry would not likely be able to deter a heavily weaponized federal government. There’s no getting around it—there is today a significant gap between civilian and military small arms, whereas in the 18th century, Americans commonly used the same weapons for civilian and military purposes.
Now, constitutional obsolescence is an unusual thing, but as an original matter, it need not be wrong. We may be used to constitutional rights having expanded application in light of new technology (e.g., the Fourth Amendment implications of electronic wiretapping abandoning the old trespass requirement for an unreasonable search), but there is no reason to believe that modern development might not also mean contracted application. Such may indeed be the second-best case of restraint—the first, escaping through the D.C.-is- not-a-state escape hatch, now looking ever so more attractive.
Since the Second Amendment is no longer needed or perhaps capable of performing its anti-tyranny function, Professor Lund would have the court substitute a new purpose for the Second Amendment, the right of self-defense—which indeed has a long English common law heritage—it’s just not related to the Second Amendment. Lund’s argument is interestingly premised upon natural law principles (which would immediately prompt me to like them), including the Declaration of Independence, and a liberal reading of William Blackstone who saw no distinction between "a public allowance under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression." Notably, Lund says, Blackstone made no distinction between oppression by the government itself and oppression that the government fails to prevent.
Natural law this may be, but it is not restraint. If the Roberts Court finds a self-defense right based on the government’s failure to act, it will in fairness be obligated to awaken Joshua DeShaney from his coma and bring the Gonzales girls back to life, for in both cases, the court adamantly denied (albeit under the due process clause) that the Constitution was “a guarantee of certain minimal levels of safety and security.”
It will indeed be interesting to see if the American Constitution is transformed from a protection of negative to affirmative liberty at the point of a gun.
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Dahlia and Akhil Amar just posted great pieces in Slate about D.C. v. Heller, the guns case to be argued on Tuesday at the Supreme Court. As lots of commentators have already said, this case is irresistible because the court will be writing on a practically blank slate: The relevant precedent is from 1939, and it didn't definitively hold that there's no individual right to bear arms in the Second Amendment, though the court certainly waved in that direction. As Dahlia points out, by staying out of the gun control fray, the court has been practicing a form of judicial restraint for the past 69 years. The big question now is whether it will stick to that path by issuing a decision that recognizes an individual right to bear arms but allows for a lot of gun control regulation, as Solicitor General Paul Clement is urging, or whether it will burn down a whole lot of gun laws in the wake of resurrecting the Second Amendment, as the brief that Vice President Cheney signed, and that David flags for us, would have it. (The court could also cling to the old interpretation of the Second Amendment as speaking only to having a gun for the purpose of serving in a state-run militia, but in light of the recent revisionist scholarship on the subject, I doubt it.) In any case, since this moment is a huge test for judicial restraint and modesty, isn't it also a huge test for Chief Justice John Roberts? Modesty was his mantra during his confirmation hearings. I've argued that he didn't deliver on that promise last term. Is Heller likely to be the big fat data point on this question from 2007-2008? I'm especially intrigued by the question since there's ostensibly a way to duck the looming constitutional question altogether, by treating D.C. as its own oddball scenario since it's not a state. Anyone think that's a likely resolution, or want to weigh in on the Clement v. Cheney face-off?
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Jeffrey Rosen argued that it is, in a Sunday NYT magazine article, but he supplies little evidence:
"Of the 30 business cases last term, 22 were decided unanimously, or with only one or two dissenting voices."
-- But how many of them were decided in favor of businesses? Weirdly, we're not told. What if businesses won only half the time? Or less? Even if businesses won more often than other parties, we wouldn't be able to establish bias without knowing whether their cases were strong or weak.
"Forty percent of the cases the court heard last term involved business interests, up from around 30 percent in recent years."
-- Another meaningless statistic. Suppose that the additional cases involve disputes between businesses and workers and that the workers always win. We can't tell whether bias exists unless we know whether the Court rules in favor or against those business interests. (For one case where the employee wins, go here.)
"While the Rehnquist Court heard less than one antitrust decision a year, on average, between 1988 and 2003, the Roberts Court has heard seven in its first two terms - and all of them were decided in favor of the corporate defendants."
-- These seven cases--Volvo Trucks North America, Inc. v. Reeder-Simco, GMC, Inc. (2006); Texaco, Inc. v. Dagher (2006); Illinois Tool Works v. Independent Ink, Inc. (2006); Weyerhaeuser v. Ross-Simmons Hardwood Lumber Co., Inc. (2007); Bell Atlantic Corp. v. Twombly (2007); Leegin Creative Leather Products, Inc. v. PSKS, Inc. (2007); Credit Suisse First Boston Ltd. v. Billing (2007)--are mostly business versus business cases. Only one case--Twombly--pitted consumers against businesses. Credit Suisse ambiguously pitted investors (including corporate investors) against a business. So in five or six of the seven cases in which a corporate defendant won, a corporate plaintiff lost.
"Exactly how successful has the Chamber of Commerce been at the Supreme Court? Although the court is currently accepting less than 2 percent of the 10,000 petitions it receives each year, the Chamber of Commerce's petitions between 2004 and 2007 were granted at a rate of 26 percent, according to Scotusblog."
-- Those 10,000 petitions include lots of hopeless cases. The Chamber of Commerce will obviously pick and choose on the basis of the quality of the case, and put resources only behind those cases that have a chance of prevailing. Hence its high win rate.
"And persuading the Supreme Court to hear a case is more than half the battle: Richard Lazarus, a law professor at Georgetown who also represents environmental clients before the court, recently ran the numbers and found that the court reverses the lower court in 65 percent of the cases it agrees to hear; and when the petitioner is represented by the elite Supreme Court advocates routinely hired by the chamber, the success rate rises to 75 percent."
-- The overall success rate of petitions does not tell us the success rate of the Chamber of Commerce. The pertinent statistic is that last term the Chamber of Commerce won 13 of 15 cases for which it wrote an amicus brief. But, again, without knowing whether these cases were strong or weak, we have no way of telling whether this win record reflects bias or simply the Chamber's ability to sniff out cases where lower courts erred.
-- I looked at the 23 cases listed on the Court's website for this term. I counted nine business cases: of these, businesses lost in 5 cases, more than half. But this doesn't tell us anything either. If the court has become more pro-business, most parties will settle in line with the changing jurisprudence, and there is no particular reason to think that win/loss data will tell us anything (the "selection effect" problem that dogs empirical research).
Aside from these ambiguous statistics, Rosen cites four decided cases to support his argument. These four cases are less straightforward than they appear at first sight. To see why, consider the question, what does it mean to be pro-business?
1. Pro-Shareholder?
Businesses are owned by shareholders, so one might think that a pro-business Court would hold in favor of shareholders. However, in the Charter Communications case, the Court ruled against investors, who had sued Charter's vendors for conspiring to commit securities fraud.
Alternatively, one might argue that this case is pro-business because Charter Communications' vendors won. But that is just a way of saying that the vendors' shareholders made (or did not lose) money. Is the case anti-business because Charter's shareholders lost or pro-business because the vendors' shareholders won?
2. Pro-Management?
Maybe the claim is that the decision in Charter Communications favored that company's managers in some way. Henceforth, manages will more easily be able to conspire with third parties to violate security laws, at the expense of investors. This is also a puzzling claim. Suppose the Supreme Court held that managers of businesses could loot the treasuries of their businesses without facing any liability at all. Would that be a victory for business or would it mean that business as we know it has become impossible?
3. Anti-Consumer?
Businesses exploit consumers, don't they? In the Philip Morris case, the court threw out punitive damages awarded to a smoker who had been deceived by cigarette advertising. Punitive damages deter firms from wrongdoing but they also raise their costs and hence the price of goods. Whether consumers are benefited from or harmed by punitive damages is unclear.
The antitrust cases Rosen mentions reflect some skepticism with traditional antitrust law notions that disapprove of various cooperative arrangements among business. But the intellectual foundation of this trend reflects a pro-consumer attitude, in contrast with the older antitrust law, which was anti-big business but not anti-business.
4. Anti-State?
In Riegel, the Court held that victims of a faulty medical device cannot bring a state-law products liability claim if that device had been approved by the FDA. This case was a victory for a business, but its real effect is to ensure that FDA regulations of medical devices prevail over state common law regulation. This weakens the power of states relative to the federal government in this area, but does it help or hurt consumers? It depends on whether state common law judges and juries do a better job evaluating medical products than the FDA does. Do they? No one knows. Does it help businesses-shareholders and managers-in general? It depends on whether state judges (often criticized for being in the pocket of business lobbies) are more or less pro-business than the federal government. Some are, no doubt; others are not. There is no reason to think that recent cases that find preemption of state law are pro-business: they are pro-federal government, not pro-business.
5. Anti-Prosecution?
In Arthur Andersen, the Court reversed a conviction against the defunct accounting firm for shredding documents during the Enron investigation, holding that the government had failed to prove that the shredding was anything other than routine-as opposed to an effort to conceal guilt. In what sense can such a decision be considered "pro-business"? Compared to what? Is the idea that the Supreme Court would have affirmed the conviction if the defendant had not been a business? Or is the idea that any ruling that allows businesses to dispose of documents must be pro-business--as if the only "unbiased" view would be that businesses must keep all their records forever?
6. Anti-lawsuit?
The Charterhouse Communications case is the latest of a long line of cases that pull back on much earlier cases that found private rights of action in general regulatory statutes that vested the government with the power to enforce a law. In the past few decades, the Court has increasingly insisted that private rights of action should not be "implied" (that is, invented by courts) but should be recognized only when a statute creates them. Many of these statutes regulate businesses, so finding private rights of action may harm businesses, or some business. But these rights are also taken advantage of by businesses that seek to sue other businesses, so in aggregate, it is not clear whether the trend helps business or hurts it.
7. Pro-Market?
What's really going on is that Rosen is conflating two separate ideas: "pro-business" (really: pro-rich-people; after all businesses are just legal abstractions that bring together investors, managers, employees, consumers, so that any victory for a "business" will help/hurt all sorts of people, rich and poor) and "pro-market." The whole idea of being pro-business is, I suspect, incoherent (read Jack Balkin's post and then ask yourself, what would an "anti-business" Supreme Court jurisprudence look like? Would businesses have to lose every case?). But one can coherently argue about the extent to which the government should, or should not, depart from enforcing ordinary property and contract rights that underlie the free market. Rosen's piece is probably best read as arguing that the Supreme Court has, over the years, become less sympathetic to the view that government intervention in the market serves the public interest, a view that he calls "economic populism." If so, only the antitrust cases are really on point; the Arthur Andersen case, the Charter Communications case, and the preemption cases have little to do with market ideology.
So the Supreme Court is not increasingly pro-business, but maybe it is increasingly pro-market, finally catching up to a change in the public mood that began in the Carter administration. To preserve the idea that its jurisprudence is "biased" in favor of business, rather than just sensible or reasonable or within the range of colorable legal argument or for that matter a long overdue reaction to its previous anti-business "bias," Rosen argues that maybe there are people out there who really are populist; he seems to think that the Supreme Court and elite, bipartisan opinion that (he acknowledges) it reflects are "biased" in favor of business because this populist sentiment no longer plays a role in its opinions. "Unbiased," in this view, is populist. But Rosen does not show that populism is on the rise; the fates of the two most populist presidential candidates, Huckabee and Edwards, suggest otherwise. Even if it were, it would be puzzling to argue that the Supreme Court should hold its finger to the wind and start ruling against businesses--indeed, should have started years ago, when this "pro-business" trend Rosen decries began--and if it doesn't, that must be because of "bias." The article boils down to the claim that the Supreme Court is biased in favor of business (that is, is excessivly pro-market) because it failed to anticipate, and today shows no inclination to heed, marginal populist sentiment that has made no inroad on electoral politics.
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[David Barron]
By noting the Vice President's surprising comfort level with his own independence - as I did in an earlier post on the Binary Executive - I did not mean to argue Cheney was acting illegally by striking out on his own. My point was to highlight the hypocrisy of it all. If even Mr. Unitary Executive is comfortable with asserting his independent authority as a (sometime) member of the executive branch, then shouldn't we question whether a unitary command structure is as imperative as unitarians often claim?
Obviously, the Veep is a complex office. It is truly a mix of the branches. But unitarian doctrine can't handle that kind of complexity.
Consider the puzzles that it raises:
1. How can the Veep play a direct role in making executive war policy? After all, the D.C. Circuit has held that legislative agents can't sit as non-voting ex office members of the Federal Elections Commission. Even that minimal participation, that court has said in a paradigm of Unitarian reasoning, smacks of inappropriate legislative aggrandizement. How much worse, then, for the Senate's President to be telling the CIA what to do!?
2. Why should the Veep get the benefit of the President's constitutional power to make recommendations to Congress, as Cheney argued he should in fine Unitarian fashion in objecting to requests to disclose information concerning his energy task force. After all, as a member of Congress, isn't he supposed to receive recommendations rather than make them?
Suffice it to say, then, that, as Adam says, the Veep is a hybrid and a hybrid that the Constitution tolerates. But isn't that instructive of a more general point about the Constitution?
If our constitutional system can tolerate this kind of complex blending at the very highest levels of the executive branch, then why should we think it seeks to stamp out similar configurations lower down the chain of command. So, the next time a Unitarian tells you the JAGs in the military, civil rights lawyers in Justice, or scientists throughout the government have no right to assert their independence, remember -- they're only following Cheney's lead.
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We already knew that Vice President Cheney was comfortable arguing that his office was not part of the ... well ... the executive branch. In arguing that an executive order covering the executive branch did not apply to the vice president, he seemed to be making an argument that was of a piece with the current chief executive’s penchant for secrecy. But now the veep is at it again, and this time he’s taking his view of independence a bit further. In an amicus brief to the Supreme Court, Vice President Cheney—as president of the Senate—argues for a position in the D.C. gun control case that is at odds with the position taken by the solicitor general on behalf of ... well ... the executive branch. (Suffice it to say, the vice president is somewhat less keen on the constitutionality of gun control measures than is the person representing the United States on behalf of the president). How is it that the man who constantly portrays himself as the keeper of the flame for the unitary executive seems so comfortable with there being a binary one?
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Yes, we can hope that will be readers’ reactions to this great new Slate meta-law-blog. But I’m referring, instead, to Bono’s expletive when he accepted the Golden Globe for best original song five years ago. (Trivia question: What was the song? A. “The Hands That Built America” from Gangs of New York. OK, so it wasn't so brilliant, after all.)
The Golden Globes are, of course, televised (at least in years when the writers are not on strike). NBC broadcast the 2003 award ceremony that contained Bono’s eloquent acceptance speech. And thereby . . . committed a federal felony.
Or so said the Bush administration’s Federal Communications Commission, anyway, which concluded that Bono’s singular remark caused NBC to violate 18 U.S.C. 1464, which makes it unlawful to “utter[] any obscene, indecent, or profane language by means of radio communication.” The FCC explained that, even when it is used as an “intensifier,” the term it delicately calls “the F-word” was indecent because it “inherently has a sexual connotation,” because it “invariably invokes a coarse sexual image,” and because its recitation by Bono lacked any political, scientific or "other independent" value.
The FCC then applied its new “Bono Rule” to . . . Cher and Nicole Richie (good company, Bono!), and to the Fox Network that had broadcast their similar outbursts. (During her acceptance speech for an “Artist Achievement Award” in the 2002 Billboard Music Awards, Cher said: “I’ve . . . had critics for the last 40 years saying that I was on my way out every year. Right. So fuck ‘em. I still have a job and they don’t.” And during the next year’s Billboard Awards, Paris Hilton and Nicole Richie made sport of the Bono/Cher precedents, proving that the new law is not limited to performers with a single name:
Paris: Now Nicole, remember, this is a live show, watch the bad language.
Nicole: Why do they even call it The Simple Life? Have you ever tried to get cow shit out of a Prada purse? It’s not so fucking simple.”)
The FCC held that Fox had violated the law, too, under its new single-expletive doctrine—which is, more or less, that any use of “fuck” or “shit” on network TV before 10 p.m., even of the “adjectival” or "intensifier" variety, is presumptively indecent. (“Presumptively” because their remains a “Saving Private Ryan” exception for the use of “fuck” in big movies by important directors about the ravages of war. The law does not apply between 10 p.m. and 6 a.m., or at any time on cable or on the Net.)
Fox appealed. The U.S. Court of Appeals for the Second Circuit held that the new FCC rule violated the Administrative Procedure Act. It’s obvious from its opinion, however, that the court’s decision was really being driven by the First Amendment.
The FCC petitioned for certiorari, and today the Supreme Court granted the government’s petition.
I would be shocked if the court does not affirm the court of appeals’ invalidation of the FCC rule. Does anyone disagree? Anyone see more than two votes for the FCC? Moreover, isn’t this whole thing just a bit otherworldly—that more than 30 years after the George Carlin “seven dirty words” decision, a federal agency would issue such a ruling and the highest court in the land would have to consider such a question?
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For three decades now the U.S. Department of State each year has issued a report on the human rights practices of other countries throughout the world. It does so to comply with the
Foreign Assistance Act of 1961, §§ 116(d), 502B(b); that is, at the behest of Congress.
Last week State issued its
2007 Country Reports, assessing the promotion of human rights, or the lack thereof. The reports range from A to Z
—Afghanistan to
Zimbabwe, with 194 nation-states in between.
Far from complimentary, the
introduction's account of China's behavior
included mention of interference with religious freedom and the imprisonment of activists, writers, and lawyers. Still, China was not listed among the worst-of-the-worst, but rather immediately after reference to "authoritarian countries that are undergoing economic reform" and "have experienced rapid social change but have not undertaken democratic political reform and continue to deny their citizens basic human rights and fundamental freedoms."
if this decision 'signifiies that the State Department is paying less attention to chronic violations of human rights in China, yes, that is a problem.'
Also a problem: what some might surmise are the reasons for the differential treatment.
The worst-of-the-worst list includes those members of the international community with which the United States has its most tense relations. China has a different status. (See posts
here and
here and
here.) It's a huge trading partner and a potential hegemon in its own region and those as farflung as Africa.
Indeed, unlike the United States or Europe, for that matter, China's policy is
not to tie human-rights-compliance strings to the considerable foreign aid it hands out; what's more,
China lashes out at the United States every year that it's called on America's human-rights-compliance carpet. This year in particular, it's host to the Summer
Olympic Games, an Olympics that U.S. President George W.
Bush has pledged to attend.
A realist understands that U.S. officials might feel a tension between Congress' human rights command and China's unique status. And yet, with yesterday's
post from IntLawGrrl Naomi Norberg, and with headlines like this one in Sunday's
Times of London
—"
Fears of another 
Tienanmen as Tibet explodes in hatred"
—even a realist has cause to question the choice that the United States appears to have made.
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What do Eliot Spitzer, Dickie Scruggs, and Tupac Shakur all have in common?
Ego and hubris, of course. But more specifically, a belief that they operated by different rules than the rest of us mere mortals. Not just that they could avoid being caught, or get out of trouble if caught, but that the law simply didn't apply to them because of their status. Each found this to be untrue in his own way.
In reading Chuck Philips' masterful profile of Shakur in today's Los Angeles Times, I was struck again by the shear volume of criminality in Shakur's life. Some of this was typical Hollywood illicit activity—sex, drugs, alcohol, etc.—and some was marketing or puffery which aimed to connect his music about the "thug life" with real acts of violence. But there's also a staggering amount of criminality that runs throughout many of the scenes in Philips' years of reporting on Shakur and the West Coast/East Coast rap rivalry: omnipresent weaponry; use of beatings to enforce contracts; bribery and extortion; and the list goes on. These are all crimes, but they were standard operating procedures for many of the principals involved because they believed they were above the law.
Similarly, Dickie Scruggs believed he lived on a higher plane than the lawyers around him. A well-timed Wall Street Journal profile paints Scruggs as even more mercurial and Macchiavellian than he appeared when played by Colm Fiore in The Insider—a movie dramatizing Scruggs' fight against tobacco companies. Scruggs won big by raising the stakes and waging scorched-earth litigation in the way that Sherman waged war by cutting a swath through Georgia from Atlanta to Savannah. But he also won by bending and twisting the rules, and shattering the friendships and alliances he built with other lawyers (including his own associates) in order to consolidate his winnings. This certainly wasn't the modus opperandi I learned in law school, nor in private practice, but it worked for Scruggs (for a while) because he was a billion dollar man who could simply buy his way out of tough situations. Until Friday, when he pled guilty to conspiring to bribe a Mississippi state-court judge in a battle with former colleagues over legal fees.
And then there's Eliot Spitzer—who fell into the net of federal law enforcement through means he was intimately familiar with as a former prosecutor who relied on things like "suspicious activity reports" to prosecute members of New York's financial community. Spitzer had to know both that his alleged sexual misconduct was unlawful, and that his financial transactions would raise eyebrows, but he paid no attention to those things. Spitzer spent years prosecuting other titans of Manhattan who felt they were above the law—but apparently the message never got through because he suffered from the same mistaken belief.
Pride goeth before the fall ...