-
sponsorship
I'm not inclined to defend Cheney's freelancing in Heller, but I do think David's being a little too facile when he says in this post that "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."
The argument for the executive's tolerating a certain measure of independent action from each of the groups David names is different, and in all of these cases, the argument is totally different from the unique case of the office of the Vice President. We expect a measure of independence from the JAGs in order to protect their ability to represent clients in the context of a justice system that exists within an executive department. We expect government scientists to be insulated from politics because scientific truths are not supposed to change with party control over the executive branch. Civil Rights Division lawyers in the Justice Department, by contrast, are not and should not be independent of their agency's positions; as lawyers representing the United States, they are arms of it. Each of these cases represents a different weighing of the relative benefits of unity versus diversity in viewpoint, the executive's ability to formulate and promulgate its policies versus its interest in preserving such goods as the right to trial or free scientific inquiry. In none of these cases is independent action by lower executive officials built into the constitutional design.
The vice president, by contrast, has a measure of independence for a unique reason: Because the Constitution makes him at once president of the Senate and first in line to the presidency-both a creature of the administration and a sometimes-meaningful part of the legislature. In Cheney's case, the vice president is also perhaps the president's closest aide and the strongest voice within his administration for a unitarian conception of the executive. These facts make his involvement in Heller hypocritical, as David suggests, but they do not alter the reality that he-unlike almost all other executive branch officials-legitimately wears more than one hat. His ability to switch hats is a function of the same constitutional design as the unitary executive he belligerently champions.
-
sponsorship
CNN says the blogosphere is abuzz with news of the Obama passport story, so I feel somehow obliged to make it true. Trouble is, I'd always figured most lawyers should have way more questions than answers at such an early point in such a story. So what could we possibly have to contribute?
For what it's worth, here's what I got. According to the U.S. State Department website, the Passport Services division maintains U.S. passport records for passports issued from 1925 to the present. "These records normally consist of applications for United States passports and supporting evidence of United States citizenship, and are protected by the Privacy Act of 1974. Passport records do not include evidence of travel such as entrance/exit stamps, visas, residence permits, etc., since this information is entered into the passport book after it is issue[d]." On the law, violation of the relevant Privacy Act provisions (like willful disclosure of protected agency records) can subject the violator (provided he/she's an "officer or employee of an agency") to criminal fines up to $5,000, or a civil action by the individual. So assuming contractors count as agency employees within the meaning of the statute (and I wonder whether there's case law here), I could imagine finding statutory violations under these circumstances. And boy does it look bad.
The thing is, while I'm certainly pleased such personal records are protected from disclosure, and am appalled at the thought of politically motivated snooping, I don't get what could be of such great interest in a passport file to warrant the trouble? It seems hard to picture someone successfully using Obama's Social Security number in any kind of identity theft scheme. Does someone seriously think he might be lying about his citizenship? Or does "imprudent [read cat-killing] curiosity" by poorly trained contractors ring true?
Anyone care to buzz back?
-
sponsorship
I hate, once again, to be the guy to bring our blog down from the empyrean of Supreme Court analysis and that whole "Unitary Executive" thing, but can we talk -- just for a minute -- about what went down at Newark Airport on Tuesday when a British memoirist was denied entry to the US because, it seems his book described using lots of drugs and having sex with prostitutes?
Now I get why if you are, say a Governor of New York who has made his reputation by busting callgirl rings, actually being caught on a federal wiretap being all John-y is aproblem, but writing about it in an arch tell-all memoir?
The Times indicates that Sebastian Horsley, whose memoir, "Dandy in the Underworld," was published last week by Harper Perennial, was "detained by United States customs authorities for eight hours and questioned about his former drug addiction, use of prostitutes and activity as a male escort." The results were, of course, that he was denied entry to the US and returned to England (even though he's visited many times before without any trouble).
So here's the question for all of you: What's a poor memoirist to do when confronted at the border with his own tell-all-tome? How does he avoid getting booted for "moral turpitude"? And do you think the book was sufficient evidence of his moral failings, or did the deportation rest on the admissions he made (presumably by confirming facts in the book) in the interview?
Thoughts and schemes welcome.
-
sponsorship
George Will touched a nerve among conservatives today. In his new column, he called for judicial intervention to thwart local regulations limiting dancing at a restaurant, in the name of the Fourteenth Amendment. This embrace of judicial activism certainly didn't please my friends Matt Franck, Ed Whelan, or Steve "Feddie" Dillard.
Steve and Ed seemed a bit surprised by Will's position; I must say, though, that I find it fairly consistent with Will's prior writings. Will's view of the role of the courts is no different from his view of the role of government generally his primary concern is that government should minimize interference with personal liberty (particularly on matters of speech). At the same time, he he opposed judicial disruptions of well-established societal institutions. (Thus, when the Supreme Court ruled in the VMI case, he famously decried "our robed masters.") Can these two priorities come into conflict? Of course. I've not seen Will wrestle with that point.
Even though (or perhaps because) his own instincts are less-than-systematic, Will loves to pick fights with conservatives on questions of the role of the judiciary. He is not a fan of "originalism"; he associates it with the Dred Scott decision and the Alien and Sedition Acts. He seems to go out of his way to accuse conservatives of celebrating a brand of "judicial restraint" that is inconsistent with judicial enforcement of the Takings Clause; he accuses conservatives of preaching "dogmatic majoritarianism."
Quite obviously, I have a few qualms with Will's arguments. That said, I won't go so far as to say that his generally-libertarian views aren't "conservative." They certainly don't constitute the current maintstrean modern American conservative jurisprudence; that mantle belongs, as we all know, to a Scalia/Thomas-style Originalism. Nevertheless, Will's modified libertarianism is a conservative jurisprudence, as are popular constitutionalism, "Lochnerianism" (to butcher a term), and perhaps others.
-
sponsorship
David continued the conversation on the compatibility of Cheney's assertion that the Vice President is not part of the Executive Branch and his support for the theory of the Unitary Executive by posing a couple of questions. Given that I've done my best to show the theoretical consistency of those positions, I'll take a crack at responding.
David, you first suggest that if the Vice President is part of the legislative branch, then his participation in executive branch affairs would seem to run afoul of the Supreme Court's stance against congressional encroachment on executive power. I think you overlook a pretty important distinction:
In the Supreme Court's cases (and in the D.C. Circuit decision you mentioned, FEC v. NRA Political Victory Fund, 6 F.3d 821 (D.C. Cir. 1993)), the courts stood athwart congressional attempts to "aggrandize" power not afforded Congress by the Constitution. In NRA Political Victory Fund, the D.C. Circuit went so far as to state (without offering any on-point citation) that "the mere presence of agents of Congress on an entity with executive powers offends the Constitution."
Even assuming that the D.C. Circuit's statement can be taken as being co-extensive with the Supreme Court's precedents (I think the D.C. Circuit's statement is a bit more aggressive), Vice Presidential participation at the invitation of the President seems to me not to raise the red flags identified in the case law. A Vice President's ad hoc participation in formulation of Administration policy occurs only where the President allows it. Thus, the President's invitation to the Vice President to participate in Administration policymaking involves no threat of congressional "encroachment" on the executive -- the executive remains in full control of the arrangement!
Similarly, where the D.C. Circuit warned (with respect to ex officio congressional members on the FEC) that "their mere presence as agents of Congress conveys a tacit message to the other commissioners," Vice Presidential involvement in Administration policymaking deliberations raise no such concerns. In such cases, the Vice President isn't acting "as [an] agent[] of Congress" -- he's acting as an agent of the President!
Your second question asked how the Vice President, if a member of the Legislative Branch, could refuse to disclose information to Congress (your case in point: the Cheney Energy Task Force). My answer here is similar to my answer to your first question: for purposes of Presidential privilege and confidentiality, the important question is not whether the Vice President enjoys the privilege, but whether the President enjoys the privilege, and whether the vice-presidential communications were undertaken for the purpose of collecting and conveying to the President information for the President's decision-making process. The fact that a member of the legislative branch is a party to confidential policy meetings convened for the purpose of providing advice to the President does not -- so far as I know -- defeat the privilege. (On that point, though, I'm happy to be corrected.)
Finally, a clarification: You and I disagree slightly on the Vice President's constitutional pedigree: You say that his office "is truly a mix of the branches," but my hypothesis has been that his office is just part of the Legislative Branch. Maybe that's why, contrary to your point, I'm a "Unitarian" who feels comfortable with the Vice President's "complex" nature.
-
sponsorship
Musing on the oral argument in Heller, which I just found time to digest (check out the read-along-picture-book-like function at Oyez.org):
Anyone else struck by the oddity of an originalist focus with regard to the existence vel non of an individual right, followed by a 20th century fast-forward with regard to application? On the 1st point, nearly all (though not all) Justices spent the 1st third of the argument plumbing what words in the 2d Amendment used to mean, as far back as 1689. Then, at p. 40, Justice Antonin Scalia: "And yet we've never held that simply because it was pre-existing and that there were some regulations upon it, that we would not use strict scrutiny. We certainly apply it to freedom of speech." Litigants and Justices alike -- with the notable exception of Chief Justice John G. Roberts, Jr. (p. 44) -- seemed to accept that some "level of scrutiny" applied.
No great thoughts here about what the Court ought to do, but was struck by this juxtaposition in 1 case of discourse from 2 eras.
-
sponsorship
Suppose that a number of people form a group in order to obtain some goal, X. They appoint some of their members to be the leaders of the group. These leaders quickly realize that if goal X is actually achieved, the group will disband, and the leaders of the group will be out of a job. At the same time, if they refuse to work toward X, they will be fired. Therefore, the leaders of the group take actions that lead the group progressively toward X but make sure that X is never achieved -- a political version of Zeno's paradox.
Does this story sound plausible? Economists will recognize it as an agency-cost theory: the agent (the leader or leaders) and the principals (the members) have divergent interests. Both want to achieve X but the agent also wants to keep his job. If group members cannot adequately monitor his actions, the agent will take steps that best satisfy both his ends, which means working toward X but not actually achieving it. Because the group cannot distinguish between honestly working toward X and deceitfully taking baby steps, they cannot discipline the leader for his bad behavior.
The story underlies Jack's claim that the leaders of the Republican Party don't really want the Supreme Court to overturn Roe, because once that happens, they will be out of the job. They have been working toward X for 35 years now, but they will make sure never to achieve the goal, apparently by ensuring that people willing to overturn Roe are not appointed to the Supreme Court. David tries to refute this argument by adopting its logic to gun rights. The Republican Party also seeks to secure guns rights. If it succeeds, then it will fall apart. Yet the Supreme Court justices seem inclined to deliver success. This must mean that Jack's logic is faulty, the leaders of the Republican Party actually do want to overturn Roe, and hence Roe will be overturned. Jack responds by denying David's implicit premise that establishing gun rights serves the Republican coalition in the same way that overturning Roe does.
Jack's theory can be attacked more directly. The agency theory assumes an information asymmetry between leaders and members: the members cannot monitor the leaders' behavior. In many settings, such an assumption is reasonable, but here it is not. It is perfectly clear what the Republican Party leadership is, and is not, doing to undermine Roe. That they have not put all their resources into this task is consistent with an innocent explanation: they have to please all members of their coalition and these people care about things other than (or in addition to) overturning Roe. If Bush had put all his political capital (when he had political capital) into appointing clearly anti-Roe jurists to the Supreme Court, he would not have been able to use it to obtain other things that he and other Republicans care about (tax reductions, etc.).
The theory also makes too much of the difference between overturning Roe and chipping away at it. Members of the Republican coalition are not so much concerned about Roe as about reducing the number of abortions. They also care about other things. So as the Roe precedent becomes weaker, it will become easier to restrict abortion, and therefore people opposed to abortion will feel decreasingly concerned about that issue and correspondingly more concerned about the other issues that they care about. If Jack's theory is right, then the leaders of the Republican Party can't merely preserve Roe as a hollowed out shell; they must ensure that, in fact, little progress is made in restricting abortion as a practical matter. In other words, they maintain their leadership by accomplishing very little for their followers, all the while arguing that they are doing their best. Not a plausible recipe for political success.
-
sponsorship
David, as one of the leading purveyors of the claim that the court will chip away at Roe without overruling it, I respectfully suggest that your logic is flawed.
continue reading at Balkinization . . .
-
sponsorship
One theory that has been circulating for some time has been that the conservatives on the court will never overrule Roe/Casey because doing so would be bad for the Republicans. Instead, on this view, the conservative justices will just nibble away at the abortion right without ever really jettisoning it. It's not the most attractive account of how the Supreme Court operates, but it's a theory nonetheless. I've never really bought this view, and now I think the oral argument in Heller points against it. Here's why. Probably the most politically galvanizning outcome from Heller would be a decision that upholds the D.C. gun law—that would get the gun rights folk hopping mad and thus supermobilized, and it would no doubt create a political headache for those on the other side. And yet, from all appearances, it looks like the conservatives on the court are plenty eager to strike down the statute in the course of recognizing the individual's Second Amendment right to keep and bear arms that the NRA has been pressing for years. Doesn't that suggest that, as soon as there are five solid conservative votes in place, Roe/Casey really is likely to be overturned, short-term partisan calculations notwithstanding?
-
sponsorship
[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 nonvoting 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.
-
sponsorship
Though Richard Ford and I sometimes have exciting fights, today I give him props twice in the space of an hour. I agree that Obama’s speech was stunning. As in other contexts where I’ve heard him, he refused to be a demagogue, staving off applause from the audience so he could get his ideas across. And what an idea it was.
What I took home from the speech was that in a pluralistic society, all individuals have an obligation to reflect on what part of their suffering arises from the human condition generally, and what part is specific to a particular demographic characteristic they hold. Speaking for myself, I’m struck as I get older at how many of the things I thought were “gay issues” are much more universal than I thought—the difficulty of relationships, the fear of dying young, and so on. Of course, that doesn’t mean gays do not face real oppression in this country, or that the challenges faced by different groups don't admit of degrees. But to the extent that I don’t distinguish between the human condition and the gay condition, I hurt my ability to ameliorate the latter. This is because potential straight allies will rightly resent that I cast them as obstacles to my human flourishing rather than as individuals who have a stake in that flourishing themselves.
What’s legal about this? Well, over the past few decades, the Court has moved away from traditional group-based equality jurisprudence. I’m thinking here of Cleburne v. Cleburne Living Center (1985) (intimating there will be no more heightened scrutiny groups) or Washington v. Davis (1976) (foreclosing disparate impact claims under the equal protection guarantees) or City of Boerne v. Flores (1997) (restricting Congress’s power to pass civil-rights legislation). At the same time, the Court has looked more favorably on a universal rights approach to civil rights. I’m thinking here of Lawrence v. Texas (2003) (protecting general right to sexual intimacy) or Tennessee v. Lane (2004) (protecting general right to access the courts). The Court's move, though less easy to pinpoint, has a lot in common with Obama’s insight that we need to transcend groups when the interest in question is genuinely common. Heather Gerken and I are going to have a debate about this in the next week or so that will flesh out this jurisprudential shift, for those who are interested.
In the meantime, I’ll be basking in the afterglow of that amazing speech. As a colleague of mine said, Obama’s address made his political colleagues look like “normative midgets.” (I except Hillary Clinton from that characterization, though I'm not sure my colleague does.) I like that characterization because the insight I'm celebrating feels more like normal science than rocket science. But as Ford says, it's not something we hear from our politicians. My colleague's phrase reminded me of a rather ungracious honorary degree recipient who in his acceptance speech paraphrased Newton’s line about having seen further than his peers because he had stood on the shoulders of giants. “If I’ve seen a little further than my peers,” the honoree said, “It’s because I’ve looked over the heads of midgets.” In his commonsensical and fair-minded understanding of race, Obama stands tall.
-
sponsorship
Here’s another thought on Snyder. To start with the big picture, peremptory challenges are called an “arbitrary and capricious right” by Blackstone (the only place I know where he uses that phrase with a positive connotation). Many believe that this means peremptories should be exercised in a completely unrestricted way, and that Batson v. Kentucky (1986) and J.E.B. v. Alabama (1994), which stated that they could not be exercised on race or gender grounds, were incorrectly decided.
Given that Batson is still good law, however, all the Justices are in the position of having to assess whether the litigant’s “arbitrary and capricious” reason is race-based. I think what distinguishes Snyder and the Miller-El v. Dretke (2005) on the one hand from Hernandez v. New York (1990) on the other is that the stated reasons for which the potential jurors were struck in the first two cases were pretty hard to associate with race. But that distinction leads to a perverse result.
In Snyder, the prosecutor said he struck the African-American potential juror because he seemed nervous and because he was worried that jury service would interfere with his work obligations. In Miller, the prosecutor said he struck because the juror allegedly said that he would not give the death penalty if rehabilitation were possible, even though the juror said no such thing. In both instances, it was hard to distinguish these jurors from the white jurors who were not struck. It is probably true that close to 100 percent of African-American jurors consider the impact their jury service will have on their work, but it is also probably true that close to 100 percent of all jurors have this same concern.
Contrast Hernandez, where the Court permitted the prosecutor to strike all Latinos from a jury in a criminal trial of a Latino defendant. The prosecutor stated that he struck the jurors because they spoke Spanish, and therefore were less likely to defer to the court-appointed translator when Spanish-speaking witnesses took the stand. While the case didn’t generate a majority opinion, a majority of the Justices credited this reason and permitted the strikes.
The Court, then, sent the message that if you want to strike a minority juror, you should use a “non-race-based” attribute correlated with their race or national origin (which receives the same treatment as race for these purposes). But this leads to an unappealing result: As Richard Ford has eloquently argued elsewhere, this will have the tendency to reify stereotypes about groups. Latinos are indeed statistically more likely to speak Spanish than whites, so striking on the basis of “non-deference to Spanish speakers” will permit the removal of more Latinos than whites from a jury.
I don’t see the Court getting any subtler about this issue (in Hernandez, for instance, there’s no analysis in the Supreme Court’s various opinions of whether non-Latino Spanish speakers were struck, or whether the prosecutor even asked non-Latino potential jurors if they spoke Spanish). Given this assumption, it seems wiser to abolish peremptory challenges altogether, unless benefits of which I’m unaware so grossly outweigh the bars such strikes can place on the participation of citizens on juries regardless of race. I’m curious to know what our trial lawyers and judge think.
-
sponsorship
continue reading at Balkinization . . .