-
sponsorship
The current Bush administration defense of its Terrorist Surveillance Program, known to some as the illegal domestic spying program, leans heavily for its legal justifiation on the Authorization To Use Military Force, which was passed right after 9/11. The argument is that the AUMF is a later-enacted, more specific measure, and that it therefore supersedes the more general and earlier adopted Foreign Intelligence Surveillance Act. By this means, presto, the AUMF authorized warrantless wiretapping consistent with the terms of that later-enacted statute. Many in Congress are already on record saying that they never intended the AUMF to have that consequence and that evidence of legislative intention has bolstered arguments by many opponents of the program that the administration's statutory claim is risible. But now this recent disclosure reinforces that judgment. It indicates that the Bush administration lawyers who were around when the AUMF was negotiated also did not think the AUMF had that consequence. Their initial theory, the new disclosure indicates, was that, even aside from their broad views about the president's power as commander in chief to override conflicting statutes, FISA itself contained an implied exception for the president to do what needed to be done. The AUMF argument, then, was something that the administration came up only with much later. But if neither the congressional leaders nor the Bush administration lawyers who actually negotiated the AUMF's passage thought that vaguely worded measure sufficed to provide authority for warrantless wiretapping, then what exactly is the reason to think that the best reading of that statute is the one that is now being pushed by the administration? After all, it's one thing to contend that a vague, later-enacted statute supersedes an earlier one that is clear. It's quite another to argue that a later-adopted interpretation of that same statute should supersede the original one.
-
sponsorship
After all, legislation is property itself. Or so suggests the Oregon Senate.
-
sponsorship
Deborah, I too get the sense (from gay service members who have recently left the military) that "don't ask, don't tell" is generally disfavored by a broad segment of the military community. And I would be delighted for the Supreme Court to use this context as an occasion to rethink its stance on military deference if or when the case arrives there. But here is why I remain pessimistic.
I don't think the detainee cases are going to revise the court's stance on military deference in the "don't ask, don't tell" context. First, I think the detainee cases themselves exhibit a not insignificant amount of such deference. Second, like you, I think the DADT cases will cause to the court to look at cases involving the civil rights of service members, not the civil rights of detainees. Third, I think that if the court considers DADT, it will at most apply rational basis "with bite" (either under Lawrence v. Texas, which I take to be a rational-basis-with-bite case in the rights realm, or under Romer v. Evans, which could be read as a rational-basis-with-bite case in the classification realm).
The only Supreme Court equal-protection case I know where the plaintiff prevailed against the military is Frontiero v. Richardson (1973), where Sharron Frontiero successfully challenged a benefits scheme that facially discriminated on the basis of sex. That case is easily distinguished on the ground that it did not concern a core military function. In cases that did involve national security, military readiness, or unit cohesion, the court has been extraordinarily deferential, as I stated in my earlier post. Indeed, Rostker v. Goldberg (1981), which upheld the male-only draft, is also generically cited for the proposition that "judicial deference to ... congressional exercise of authority is at its apogee when legislative action under the congressional authority to raise and support armies and make rules and regulations for their governance is challenged."
It's worth dwelling on the sex discrimination context here. (Race and national origin are not going to be as probative, because the court will be uncomfortable citing Korematsu for military deference and because the racial integration of the armed forces was accomplished by Truman's executive order rather than through a court decision.) In 1981, when Rostker was decided, sex-based classifications already drew intermediate scrutiny under Craig v. Boren (1976). As Cass Sunstein has noted, even before United States v. Virginia (1996), intermediate scrutiny was a lot closer to strict scrutiny than it was to rational basis review. As a purely analytic matter, it seems that if military deference allows congressional legislation to survive intermediate scrutiny, it would a fortiori allow congressional legislation to survive the rational-basis-with-bite the court would apply under Lawrence or Romer.
As for the effect of a possible amicus brief from retired generals, I'm also not sanguine about the weight the court would give to such a brief, even if it came into existence. Some of the most visible retired generals, such as H. Norman Schwartzkopf or Colin Powell, testified in favor of DADT. So, they would have to have George Wallace moments to participate in such a brief. Moreover, even if such a brief were filed, I doubt the military's green brief would be as influential here as its brief allegedly was in Grutter v. Bollinger. In Grutter, the military brief cut for the court's inclination to defer to educational institutions; here, the military brief would cut against the court's inclination to defer to the political branches. More importantly, it would not just be the "civilian executive" (as you posit) defending the DADT policy, but also Congress. One of the awful things about DADT is that, unlike the prior 1981 executive order governing gays in the military, it is a joint creation of congressional legislation and executive regulation. And so one could argue that not only Article II military deference to the executive, but also Article I deference to the Congress, would be due from the court.
Don't get me wrong-I've written at length about the injustice of this policy. But unless the court revisits its military deference doctrine, the solution here is much more likely to be legislative repeal than judicial invalidation. Opponents of the policy should allocate their resources accordingly.
-
sponsorship
Phil, I don't understand your post's statement about how the Court of Appeals for the Armed Forces in United States v. Marcum didn't "cite Bowers v. Hardwick and the illegality of homosexuality per se." This implies that the Marcum court could properly have cited Bowers but decided not to do so. But Marcum could not have properly cited Bowers, as Marcum (2004) occurred after Lawrence v. Texas (2003), which explicitly overruled Bowers. What am I missing?
The dominant note here, though, is one of agreement. United States v. Marcum is indeed a hopeful sign of how Lawrence could be applied. At the risk of stating the obvious, no opponent of "don't ask, don't tell" I've ever encountered disagrees with the importance of unit cohesion in the military. It's just that we, like you, don't think that having service members who engage in private adult consensual homosexual conduct in and of itself is going to destroy unit cohesion, as the experience of other countries (Israel, Canada, etc.) has suggested.
Indeed, one of the most frustrating things the military and Congress has done is to predicate their policy on the empirical claim that openly gay service members destroy unit cohesion without permitting that empirical claim to be tested. As Jennifer Gerarda Brown has argued, even one regiment integrated on the basis of orientation would shed some light on this question, even if the United States military eels itself to be so exceptional that the experience of military organizations in other countries and quasi-military organizations in our own is insufficient.
Equally important here is that Lawrence not be read too broadly to protect sexual conduct that the opinion itself said should not be protected. It would be a tragedy if Lawrence were improperly read to protect nonconsensual sexual activity (like rape or sexual harassment), whether that activity was cross-sex or same-sex in nature, or whether it occurred inside or outside the military context. Marcum's three-part inquiry recognizes this as well:
First, was the conduct that the accused was found guilty of committing of a nature to bring it within the liberty interest identified by the Supreme Court? Second, did the conduct encompass any behavior or factors identified by the Supreme Court as outside the analysis in Lawrence? Third, are there additional factors relevant solely in the military environment that affect the nature and reach of the Lawrence liberty interest?
In some sense, this language just makes explicit what all lower courts must do anyway, which is to apply the Supreme Court's precedent with adjustments for the fact that the precedent was decided outside the military context. But its explicit statement is helpful, especially as it lends credibility to the results in these cases, which, as you say, are not anti-gay.
The final great thing about Marcum is how much the 9th Circuit relied on it. We see Article III court-Article I court convergence here, as the Witt panel heavily relies on Marcum as persuasive authority. So, why am I so pessimistic? For more, see my response to Deborah.
-
sponsorship
Good point, Eric, I had confused the respondents who had said they were "unfavorable" toward a justice with those who were "not sure," and it would be the latter group that would contain most folks who don't know any justices. The former group might contain people who couldn't produce justices on their own but were still willing to opine on them once given their names, but even if so, I see no reason to believe that those people would be less favorable to the justice they were asked to evaluate. I also like Dahlia's point that justices who are more visible as individuals tend to be more disliked. Is the lesson of this that the justices should "hand up" their Delphic pronouncements from a hole in New Hampshire?
-
sponsorship
We have previously noted how the Supreme Court might be deploying the facial/as-applied distinction to reach minimal levels of consensus that would otherwise not be possible because of the ideological differences on the court. One prominent example was the Supreme Court's upholding of the federal partial-birth abortion ban on facial grounds in Gonzales v. Carhart. Consensus on the Supreme Court does not mean the division in the universe disappears, however. It is simply shifted back down the judicial hierarchy to the appellate bench. Thus, in Richmond Medical Center v. Herring, on remand to the 4th Circuit in light of Carhart, a 2-1 panel led by Judge Michael invalidated the Virginia partial-birth infanticide act on its face.
Pursuing a facial challenge in the lower court may seem contrary to the Supreme Court's preference for as-applied challenges, but the two-judge majority reasoned that the high court's preference for as-applied adjudication exists only in the partial-birth abortion context with respect to the need for a health exception and not for any consideration of the definitional scope of a statute. That is debatable, but dicing the jurisprudence in this way, the majority believed the Virginia act overbroad because they asserted it would impose criminal liability on a doctor for accidentally performing a partial-birth procedure when a more typical dissection procedure had been intended. Judge Niemeyer vigorously dissented on this point of statutory construction pointing to a mens rea requirement that was identical to the federal statute and most assuredly preclusive of accidental criminal liability.
Putting aside the statutory interpretation question, it will be interesting to see if and when the litigants pursue a petition for certiorari, assuming an en banc denial, whether the high court will view this as defiance of its judgment in Carhart and wade back into this contentious subject. If the justices pass, the case illustrates how thin the consensus achieved by the facial/as applied distinction. Indeed, some would contend that if the lower courts are permitted to disregard Supreme Court rulings in this fashion, the general public has been misled into thinking that abortion is subject to limitation, when it is not. All the more reason to believe that abortion is none of the government's business, and the sooner the people revoke its delegated authority under the 10th Amendment to say that neither federal nor state governments should address this topic, the better.
In the meantime, even assuming a facial challenge was appropriately considered by the 4th Circuit, it should be noted that the panel was doubly defiant in rejecting the traditional Salerno standard of facial challenge. That standard is a rigorous one, requiring a showing by the challenger of no conceivable constitutional application of the statute. By contrast, the specially crafted abortion facial challenge standard fashioned in Casey, but seemingly frowned upon in Carhart, of requiring a challenger to an abortion statute merely to show that a significant fraction of women would be unduly burdened is a standard so easily met that virtually no abortion restriction is capable of meeting it.