Balkinization
an unanticipated consequence of
Jack M. Balkin
E-mail:
Jack Balkin: jackbalkin at yahoo.com
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mdudziak at law.usc.edu
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Linda McClain lmcclain at bu.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Charles Fried, who among other things was Solicitor General under Ronald Reagan (as well, of course, as a distinguished professor at the Harvard Law School and a former member of the Massachusetts Supreme Judicial Court) has a terrific piece in the Boston Globe endorsing Barney Frank's suggestion that Obama should give Elizabeth Warren a recess appointment to head the new Consumer Financial Protection Agency. Fried, who is somewhat libertarian in his politics, describes Warren as an "enemy of dishonesty, abuse, and just plain fraud," and he notes that capital (and capitalist) markets can't operate effectively if there is no adequate protection against these ills.
I must say, incidentally, that the stupidest argument in Prof. Warren's favor is that she invented the idea of a Consumer Financial Protection Agency. Talented academics have good ideas all the time, and that's generally not an argument for putting them in charge of complex agencies. What makes the appointment of Elizabeth Warren essential is not only that she had a very good idea several years ago, but, far, far more importantly, she has consistently fought for the idea at the highest level of politics, that she has demonstrated a remarkable, even charismatic, persona with regard to the ability to make complex ideas accessible, and, as Prof. Fried notes, she is passionately committed to making this idea work. By definintion, no one has the relevant prior experience in running this kind of regulatory agency, since it hasn't existed before and the existing regulatory structures, prior to the new bill, were systematically dismantled by recent administrations (including, of course, the Clinton Administration and Robert Rubin). I have no doubt she'll be a superb administrator, but if there are any problems in pushing the paper, she can always hire a deputy. The fact is that much of the job will involve informing the public as to what the Agency will be doing, and why in fact it serves their (rather than the banks') interests, and there is literally no one better in the country (including, I suspect, Barack Obama) in doing that.
One final note: I had a conversation today with a colleague who was reporting on a conversation he had had with a Washingtonian who was bewailing what has happened to the OLC as the result of the Administration's abject cowardice in selecting a head who might have expressed, at one time or another, controversial views about presidential power, etc. It will be shattering if on top of this he punts on Elizabeth Warren. Posted
10:02 PM
by Sandy Levinson [link]
(0) comments
DOMA, Romer, and Rationality
Andrew Koppelman
For anyone out there who’s enough of a glutton for punishment to want to read a sustained defense of the decision in Gill v. Office of Personnel Management, which has been the object of extensivediscussion on this blog, I have a new paper on SSRN (forthcoming in the Drake Law Review) that discusses the case and its antecedents in detail. It also defends the argument that I’ve made often in the past, that discrimination against gay people is a kind of sex discrimination, against some recent criticisms by Martha Nussbaum. Posted
9:01 PM
by Andrew Koppelman [link]
Statistical Forensics Launches a Polling Donnybrook
The digital revolution with its increasing storage of terabytes of data often leaves behind electronic traces of malfeasance. A cell phone thief left behind call records that I used to get my phone back. Justin Wolfers analyzed data sets on college and professional basketball games to uncover residue of point-shaving and racial bias. I once called on the NBA to release more data to “give Freakonomics a chance.” Steve Levitt led the way in this new field of forensic Freakonomics with his famous discoveries of cheating by school teachers and sumo wrestlers.
Now statistical forensics is playing a central role in claims of fraud leveled at the polling firm Research 2000 (“R2K”).
A political consultant, a retired physicist, and a wildlife researcher walked into a bar…no, wait – it only sounds like the beginning of a joke. Actually, in June, they checked the internal consistency of Research 2000’s polling data because “on June 6, 2010, FiveThirtyEight.com rated R2K as among the least accurate pollsters in predicting election results”:
For the past year and a half, Daily Kos has been featuring weekly poll results from the Research 2000 (R2K) organization. These polls were often praised for their “transparency”, since they included detailed cross-tabs on sub-populations and a clear description of the random dialing technique. . . . One of us (MG) wondered if odd patterns he had noticed in R2K’s reports might be connected with R2K’s mediocre track record, prompting our investigation of whether the reports could represent proper random polling. . . .
The three features we will look at are:
A large set of number pairs which should be independent of each other in detail, yet almost always are either both even or both odd.
A set of polls on separate groups which track each other far too closely, given the statistical uncertainties.
The collection of week-to-week changes, in which one particular small change (zero) occurs far too rarely. This test is particularly valuable because the reports exhibit a property known to show up when people try to make up random sequences.
The full post with details of their analysis can be found here.
It appears that Daily Kos has filed a lawsuit against R2K. The president of the polling firm, Del Ali, has responded:
On the data is too clean crap, let me say this and I challenge anyone to then look at comparable data from other firms, not one or two but many others. As I stated, using Gallup one could question the frequency of 46% on Obama’s approval. Regardless though. to you so-called polling experts, each sub grouping, gender, race, party ID, etc must equal the top line number or come pretty darn close. Yes we weight heavily and I will, using the margin of error adjust the top line and when adjusted under my discretion as both a pollster and social scientist, therefore all sub groups must be adjusted as well [sic]. I would have gladly gone over with Kos before his accusation in a vile email on June 9. However, it is clear that no matter what, Kos was going to go the route they have not just to get out of paying their bill but as stated for several other sinister reasons that have come to light. (emphasis added)
I like the fact that Ali is calling for comparable analysis of other polls. But I’m a bit baffled by the bolded section of his response. Other commentators are even less charitable. For example, Mark Blumenthal wrote:
[P]ollsters and social scientists never have the “discretion” to simply “adjust” the substantive results of their surveys, within the margin of error or otherwise. As a pollster friend put it in an email he sent me a few minutes after reading Ali’s statement: “That’s not polling. It’s Jeanne Dixon polling.”
I can imagine some discretion in how one chooses an algorithm to weight top line results. But I don’t understand the need for keeping the algorithm and the data secret.
The blood is in the water and non-statistical analysts at the Baltimore Daily Record are now digging up details on the sparse number of employees and financial difficulties at the firm.
If I were representing the Daily Kos, I would consider adding a promissory fraud count to the complaint. As Greg Klass and I explored in “Insincere Promises,” showing that another person repeatedly promised to do something and then failed to do it is one of the easiest ways to prove promissory fraud. (My favorite real-world example of repetition as proof of no intent to perform is the Tri-State Crematorium in north Georgia, which promised to cremate more than 300 bodies but instead left the bodies to rot in various storage areas on the property; for fans of musical theater, there is the more whimsical example of Professor Harold Hill, who repeatedly promised to create a boy’s band without delivering the goods.)
The answer to the question I proposed earlier today -- how can the Republican proposal for regulatory "reform" be consistent with Chadha -- appears to be this, with thanks to two correspondents: The statute if enacted would repeal all existing authority in all agencies to adopt major rules, and would convert their "rules" into proposals for legislation, which would receive favored status on the legislative dockets in each chamber.
Fair enough. There's obviously no constitutional problem with either step in that (repeal, favored status for proposals of a specified sort). But: This would be the effect of the Republican proposal, but the statutory language sure doesn't look on its face as if that's what's going on. And, in this area, labels may matter. The Court invalidated the Line Item Veto Act in the face of a cogent argument, offered by Justice Scalia, that if you looked at what the statute did rather than what it said (in its title), there was nothing at all unconstitutional about it. (There's also the canon of statutory construction that repeals by implication are disfavored, though that can be countered by the canon that courts should do their best to construe statutes to avoid finding them constitutional when their language can fairly be read to conform to the Constitution. Whether the "this statute repeals all existing authority to adopt major regulations" interpretation can be described as a "construction" of the statutory language seems to me questionable.)
In addition, if there is something like a constitutional truth-in-labeling requirement, which there might be, the Republican proposal seems to me a good candidate for a finding of deceptive (and therefore unconstitutional?) labeling. The truth-in-labeling requirement might be found in the Line Item Veto decision coupled with Hampton v. Mow Sun Wong, as part of what Laurence Tribe calls "structural due process."
[Republican] Regulatory Reform and the Constitution
Mark Tushnet
The Republican leadership has gotten behind a proposal for congressional review of proposed regulations. (It's called the Regulations from the Executive in Need of Scrutiny Act, but I'm not going to give the acronym because I regard the "acronymization" of legislation as a symptom of the degradation of our national legislative processes.) The proposal distinguishes between major and non-major regulations proposed by executive agencies. Non-major regulations become effective unless Congress enacts a joint resolution (subject to the President's signature) of disapproval. This is a standard report-and-wait provision, and raises no constitutional questions.
The provision dealing with major regulations is different. These become effective only if Congress adopts a joint resolution approving them (see Section 802). The proposal would amend the rules of each chamber to ensure that a rule with significant support in each chamber will come to the floor for a vote on a resolution of approval. My question -- and it's a genuine one -- is how this statute can be consistent with Chadha. On the face of it, it's worse than the legislative veto at issue in Chadha from the point of view of the separation-of-powers principles articulated there. In Chadha a regulation would become law unless it was disapproved by majority in one chamber.* Under the Republican proposal a major regulation would not become law unless it is approved by majorities in both chambers (and the resolution approving the regulation is signed by the President, which presumably would be a formality except in situations of presidential transition -- which is probably already sufficiently dealt with by the Corrections Day procedure).
The Republican proposal comes with findings and changes in the rules of each chamber. These might be sufficient to support the proposal's constitutionality under the functional approach adopted by the Chadha dissent, but it's not clear to me how the proposal is consistent with the majority opinion in Chadha. I'm willing to concede that I might be missing something here, but I'd appreciate enlightenment on the argument supporting the proposal's constitutionality.
* In addition, in Chadha the legislative-veto provision was statute-specific, making it possible to argue, though the majority rejected (or more accurately) ignored the argument, that the agency action could not affect legal rights until the time for the exercise of the legislative veto had expired. It's harder to make that argument for a general provision like the Republican proposal, although I suppose it could be regarded as a pro tanto (or nunc pro tunc, if you like that Latin phrase) amendment of all existing delegations of regulatory authority. Posted
7:48 AM
by Mark Tushnet [link]
Tuesday, July 27, 2010
When might filibusters be justified?
Sandy Levinson
I argued in my previous post that Joe Biden should declare that the Senate is not a continuing body and,therefore, that it can modify its rules by a majority vote, without facing a filibuster. Does this necessarily mean that the filibuster should be abolished lock, stock, and barrel? I think this is quite literally debatable, and I see two circumstances where we might want to retain the filibuster, even if, for example, we might want to drop the number of votes required to break a filibuster from, say, 60 to 55. In any event, the two circumstances are:
1) lifetime appointments, which means, obviously the federal judiciary. I, of course, strongly favor eliminating life tenure, especially for Supreme Court justices. If they could serve only 18 years, with no reappointment, then perhaps they should not be subject to filibuster. But until that happy day, I see no principled objection to trying to derail someone whose constitutional views the objector finds genuinely offensive, whether from the right or the left. This is, incidentally, why Lindsay Graham was wrong to say that he was in effect obligated to vote for Elena Kagan because, after all, Barack Obama won the election. I obviously believe that Kagan deserves support and that the Republican opposition to her is spurious to the core, but if one really wants to roll back the New Deal, then it is completely rational to oppose Kagan. Similarly, although Miguel Estrada, whom I met a couple of times, may well be a fine (and most certainly a very bright) person, it is silly for Democrats to express remorse about defeating him in light of Graham's speech. I give him great credit for supporting Kagan, and I have no doubt that she's sincere in saying that he should have been confirmed. But if he had been confirmed, then I strongly suspect that today we'd have Justice Estrada instead of Justice Alito. (Perhaps that proves that we overestimate the signiicance of discrete individuals, for a strong president may usually be able to wear Senate down by nominating persons who are far more alike than different in ideology. That is the topic for another posting.)
Perhaps one should make the same kind of argument for the head of the Fed or the FBI, given that they serve longer terms and have immense power (indeed, as we saw in the winter of 2008, more effective power than the President, who chose to be a bystander as Bernanke and Paulson acted).
2) when, because of the indefensible way that voting is allocated in the Senate, the "majority" in fact represents less than a majority of the American public. As a matter of cold fact, this argument favors the Democrats, inasmuch as Republicans currently tend to benefit from the Senate's allocation of votes. Still, it seems fair to me to argue for a rule that allows debate to be ended only when a majority of senators representing a majority of the population vote to end it. On occasion, that would be 51 (or even 50 + the VP); on other occasions, one might in fact need quite a few more votes. But if the principal mantra behind the "anti-filibuster position" is "democracy" (which is true in my case), then it's difficult to defend a principle that allows a group of senators representing less than the majority to ram controversial legislation down the throats of the presumptive majority.
3) a third argument that is often made is that the filibuster is a useful measure of "intensity," since otherwise the votes of a marginally-supportive and an intensely-opposed senator are treated equally. In theory this is a good argument, but, alas, the principal example of the "intensity" argument is Southern racists who used the filibuster to stop substantial civil rights legislation until 1964. And, of course, in the old days, whether good or bad, intensity was measured by a willingness to stay up all night and make multi-hour speeches; it had not become the basically costless gesture that is now, with attendant problems of "moral hazard" when one in effect gets an important good for free.
Why the House hates the Senate (and the rest of should as well)
Sandy Levinson
The Washington Post has a story on why the House properly hates the Senate. It illustrates a major problem with bicameralism, which is that it promotes a disincentive for members of a given house, whether the House or the Senate, in actually taking the initiative on a controversial issue, for fear that the rug will be pulled under them by the other house, including, of course, ostensible members of the same political party. (Perhaps the Republicans would have been successful in stopping a decent energy bill, but, of course, we'll never know, because the Democrats, bowing to their coal- and oil-industry lackeys, were decidedly unwillingn to push the point.)
A central issue in the uncoming election should be whether Joe Biden will rule that the Senate is not a continuing body and therefore can adopt its rules, including getting rid of the filibuster in its present form, by a straight majority vote. Indeed, it's an especially interesting issue precisely because it's not inconceivable (though I think it's unlikely) that the Republicans will get back the Senate. So Biden could credibly state that he will support that position even if it would give Republicans working control of the Senate, since, in the world we now live in, all that it would mean, otherwise, for Republicans to "capture the Senate" is that they could investigate the Obama Administration to their heart's content, since they certainly couldn't pass their legislative program (assuming, contrary to fact, that they actually have such a program). Posted
10:15 PM
by Sandy Levinson [link]
(41) comments
Sunday, July 25, 2010
Credit Scoring: Faces at the Bottom of the Bell Curve
Frank Pasquale
I agree with Prof. Levinson's recent posts on the importance of a Warren nomination for the CFPB. Just to add some context on the challenges the CFPB will face, I want to talk about the social importance of credit scores, including FICO scores. Joe Nocera recently noted that while a "credit score is derived after an information-gathering process that is anything but rigorous," it "has become the only thing that matters anymore to the banks and other institutions that underwrite mortgages." It turns out that's only the tip of iceberg of problems with credit scoring.
The conventional wisdom has become that Elizabeth Warren would, of course, be a fine appointee to head the new Consumer Protection Agency, but, as Sen. Christopher Dodd has said, she might have trouble being confirmed (which therefore licenses the Obama Administration to be thoroughly cowardly and abandon Prof. Warren). But what, precisely, suggests that she couldn't be confirmed?
Yes, every running-dog lackey of Wall Street would oppose her, but are there in fact 41 senators who would publicly take on such a role? To be sure, one can assume that most of the Republicans would oppose her, but does "most" mean "all"? Consider, e.g., Scott Brown, who, by all accounts, would like to be re-elected in 2012. Is he really going to vote against the charistmatic Harvard Professor selected by the Boston Globe last year as "person of the year"? I don't see voting against her as a good career move for an ambitious incumbent Republican senator in Massachusetts. Indeed, although so far Prof. Warren seems to be rebuffing the pleas of many that she run for the Senate herself in 2012, I wonder if she might actually succumb to these pleas if she is deprived of a chance to serve by a 59-41 vote in which Scott Brown is the executioner. Then there are the two senators from Maine, who also have to worry about their own political futures (and in fact have tried to distance themselves from their mad-dog colleagues). So, assuming she gets all 59 Democratic votes, that gives her a cushion of two votes, which means that the egregious Senators Nelson and Lieberman could vote against her and she'd still be all right. But, frankly, I'd be shocked if Lieberman, who certainly wants to be re-elected in 2012, would dare vote against Professor Warren. I'm also assuming that Blanche Lincoln, who criticized the bill for not being tough enough (on derivatives) would vote to confirm. And, who knows. outgoing Republican Senator George Voinovich, from Ohio, who is quite different in temperatment from his mad-dog colleagues, might actually choose to do the right thing and vote to confirm as his valedictory.
As anyone who follows my postings knows, I basically despise the Senate. But in this case, it is not the arcane and indefensible practices of the Senate that will explain any failure to nominate her. If Obama fails to nominate Prof. Warren, it will have nothing to do with bona fide concerns about confirmation; rather it will be a craven capitulation to running-dog Democratic senators who cannot, of course, afford to oppose her in public, but will tell Obama that she's just too "strident" to take this office. This is truly a defining moment for the Obama presidency (and for Democratic senators themselves). Posted
5:04 PM
by Sandy Levinson [link]
(25) comments
Friday, July 23, 2010
Elizabeth Warren
Sandy Levinson
Like many around the country, I'm transfixed by whether Pres. Obama will (as he most certainly should) appoint Elizabeth Warren to head the new Consumer Protection Agency that is part of the regulatory legislation signed yesterday. First, I should note that Liz is an old friend, going back to the time she graced the University fo Texas Law School faculty. (We lost her first to Penn and then they, in turn, lost her to Harvard.) I simply want to make two points:
1. It is a mistake to fixate on her status as a "Harvard Professor." Yes,she is that, but, unlike most Harvard law professors (and some of my best friends are Harvard law professors.....), she is an authentic populist far more than a technocratic progressive. This may be traceable to her growing up in Oklahoma. She went to the decidedly unfashionable University of Houston for her undergraduate education and then went on to the almost equally unfashionable Rutgers Law School for her J.D. (I am confident that she will remain the one and only graduate of Rutgers who will ever be hired by the Harvard Law School, since their "pool" tends to be drawn from the graduates of a remarkably small number of "elite" law schools.) It is safe to say that Liz got to Harvard entirely and exclusively on her own merits, as one of the leading bankruptcy experts in the United States, period. Along with UT Professor Jay Westbook and then UT Professor Terry Sullivan (who has just bcome president of the University of Virginia), she did the most sophisticated and important empirical examination of the actualities of bankruptcy and, along the way, exploded a lot of myths that privileged people have about those who go bankrupt. Long before the past couple of years, she emphasized in both scholarly and popular writings that an amazing number of families was one serious medical illness away from bankruptcy. Anyone who has seen her on television knows that she has a remarkable ability to communicate the importance of reforming our financial institutions and cracking down on predacious credit-card issuers and the like.
2. The fact that banking interests and the Repubilcan Party (who can truly be described these days as running dog lackeys of the banking interests--as distinguished from most Democrats, who are lackeys of same, but not with the same degree of abject submission) will be apoplectic and try to filibuster her appointment is a plus, not a minus. It's not only that her appointment, unlike that of the other two (by stipulation, thoroughly competent and equally thoroughly unknown to all but DC insiders and a very few others) contenders, would invigorate Obama's base, something badly needed these days, especially after such fiascoes as Shirley Sherrod and Dawn Johnson (and the disintegration of OLC). It's also the case that a filibuster would be a delight to see, especially if former boxer Harry Reid displayed some backbone and forced a "real" filibuster that forced the Republican mad-dog lackeys not only to stay up all night, but also to explain exactly why someone with Warren's impressive personal background and even more impressive intellectual accomplishments--and her ability to communicate so well with the American people, especially those most in need of protection--is unfit to serve the public.
For many of us, this is an acid test as to whether the Obama Adminsitration really does have backbone, except when Rahm Emanuel wants to curse liberals for not being sufficiently "understanding" of the need to capitulate, again and again, to self-proclaimed "realities." Some of the time, of course, Emanuel is absolutely right. But this isn't one of them. Both crass politics and the public interest make Elizabeth Warren the right person at the right time. If she is passed over, then "we" should insist that she be nominated to replace Ruth Bader Ginsburg, not least because it would really be wonderful to have someone on the Court who actually understands bankruptcy law and because, of course, it would be even more wonderful to have Elizabeth Warren construing the meaning of the various provisionsn of the 2300-page statute signed yesterday. It's a great thing for Harvard to have her on its faculty, but her highest and best use is a very high position serving the country at large. Posted
5:21 PM
by Sandy Levinson [link]
(10) comments
Questions for Robert McDowell, Heir to Ted Stevens, on his International Legal Expertise
Marvin Ammori
Today, Republican Federal Communications Commissioner Robert McDowell published an op-ed in the Wall Street Journal that would probably land any law student an F in telecom law class, if not a trip to the school psychologist. McDowell has a long history of factually challenged op-eds on Internet deployment and net neutrality, as well as using Glenn-Beck-style rhetoric comparing everything to the fairness doctrine. He'll just throw anything at a wall and hope it sticks.
Today's op-ed makes some garbled, bizarre claims about the UN betraying a fundamental misunderstanding of law. His op-ed claims that (1) back in the late 1990s, nations in the International Telecommunications Union (a UN agency) decided "not to regulate" the Internet but later the ITU tried to assert jurisdiction over the Internet at two conferences (known as World Summits on the Information Society); that (2) the ITU might assert jurisdiction now as a result of the US FCC pursuing network neutrality (which requires a regulatory reclassification); that (3) the US lacks a "veto" at the ITU, making all this a big problem, and therefore that (4) US net neutrality efforts would undermine Secretary of State Clinton's global Internet Freedom initiatives.
The Individual Mandate and The Original Meaning of Taxation
JB
For some time now, opponents of the individual mandate have focused on showing that the mandate does not fall within Congress's commerce clause powers. But the Justice Department has made clear that it will defend the new health care act both under Congress's power to regulate commerce and its power to tax and provide for the General Welfare. Opponents now realize that they must win on both theories. As a result, there has been renewed interest in showing that the individual mandate is not within the taxing power either. This is fairly difficult to do, because the individual mandate is part of the Internal Revenue Code.
I deeply fear that Barack Obama is replicating one of the worst aspects of Bill Clinton, which was a remarkable lack of loyalty to many of his friends and supporters (not to mention members of his cabinet to whom he lied through his teeth). The White House treatment of Shirley Sherrod was absolutely disgraceful, rushing to judgment and sacrificing Ms. Sherrod, who was publicly branded a racist by the Obama Administration--forget the fact that the ultra-right led the way, the Obama Administration is suppoed to reflect better values, including a commitment to due process before destroying people's careers--on the basis of grotesquely incomplete information. But, then, "disgraceful" also describes the Administration's treatment of Dawn Elizabeth Johnson, who would have been a terrific head of OLC and who was left twisting in the wind, on the basis of the right-wing fears that she was soft on torture (which was, for anyone following the controversy, far more important than the fact that she had worked for NARAL in the early '90s). The Administration never was willing to press for a full-scale Senate vote or, even more to the point, to give her a recess appointment. (Of course it's possible, though I almost hesitate to suggest this,that Rahm Emanuel was as appalled as the Republicans by the suggestions in some of Johnson's writings, that someone should actually be held accountable for the crimes of the Bush Administration. If there's one thing this Administration now seems to stand for, it is that accountability is "so 20th century.") And, of course, OLC still doesn't have an appointed- and confirmed-head. It has been ably lead, in the meantime, by David Barron, with the able assistance of Balkinization's own Marty Lederman, but rumors (I have not communicated with either Barron or Lederman about this) suggest that Lederman is returning to Georgetown and Barron to Harvard. This potential disorder at the OLC is a disgrace, and Barack Obama must bear the responsibility. [UPDATE: According to a 2:15 twitter from Charlie Savage, "It's official: Marty Lederman leaving OLC & returning to Georgetown law. W/ David Barron's return to Harvard = no more academics at OLC." This is good news for Georgetown and Harvard, but it's really terrible news for the rest of us, especially since one wonders if anyone of Johnson's, Lederman's, or Barron's stature will submit themsleves, in this completely poisonous atmosphere, to the circus of a Senate confirmation hearing with the knowledge that the Administration might well to do them (should they ever have expressed an opinion that runs counter to the conventional wisdom at Fox) what it did to Dawn Johnson.] Read more » Posted
10:22 PM
by Sandy Levinson [link]
(44) comments
Naji: The Problem With Involuntary Repatriation
Steve Vladeck
I've written before both here and elsewhere about the problems raised by the D.C. Circuit's recent (i.e., post-Boumediene) jurisprudence concerning whether Guantanamo detainees who have been cleared for release are entitled to notice and a hearing before a neutral magistrate prior to being transferred out of Guantanamo to a country (including their home country) where they credibly fear torture or other forms of persecution. [Hat tip to Lyle Denniston at SCOTUSblog, who has been on top of this issue throughout.] Much of this boiled to the surface last week in the attempt by an Algerian detainee, Farhi Saeed Bin Mohammed, to block his potential repatriation to Algeria. Although he successfully obtained a preliminary injunction in the district court, a divided panel of the D.C. Circuit granted the government's "expedited motion for summary reversal," and dissolved the injunction on the ground that its earlier decision in Kiyemba II controlled Mohammed's entitlement to relief.
Judge Tatel concurred in part and dissented in part, suggesting that at least some of Mohammed's claims (especially those going to his fear of persecution by non-governmental actors) were not covered by Kiyemba II. Mohammed then sought a stay in the Supreme Court, only to lose there, 5-3, with Justice Ginsburg writing (briefly) for herself and Justices Breyer and Sotomayor that Mohammed's case--like most of the Guantanamo transfer cases--raises issues not resolved by the Supreme Court's 2008 decision in Munaf v. Geren. (Reading between the lines, Justice Ginsburg appeared to be taking a pot-shot at Kiyemba II--which held that Munaf governed in all of the Guantanamo cases--even though the Court denied certiorari without dissent in that case earlier this year).
Why does all of this matter? Shortly after denying the stay in Mohammed last Friday, the Court unanimously denied an application for a stay in the case of another Algerian detainee--Abdul Aziz Naji. Naji was quickly repatriated to Algeria on Monday (against his will), where, according to a Reuters report filed late today, he promptly disappeared.
Pear notes that the government is not only arguing that the individual mandate is a constitutional exercise of the Commerce Power; it is also arguing that the individual mandate (which is an amendment to the Internal Revenue Code) is a tax and therefore within Congress's powers under the General Welfare Clause. Because the individual mandate is a tax, the state attorney generals challenging the act in federal court must comply with the Tax Anti-Injunction Act, which prohibits persons from challenging collection of a tax through seeking injunctive relief but requires instead that they sue for a tax refund after the tax has already been collected.
Randy believes that the Justice Department's strategy proves three things. First, the government is running scared. Second, raising a taxing power defense means that the government must now think that its Commerce Clause defense is vulnerable. Third, Randy believes that all this is proof that Randy's argument that the individual mandate is not within Congress' Commerce powers is not frivolous. Read more » Posted
1:48 PM
by JB [link]
Friday, July 16, 2010
New blog devoted to constitutional challenges to the health care bill
"Persuasion" versus "authority" (and "authoritarianism") in the law
Sandy Levinson
Linda Greenhouse has a typically interesting column online in which she argues that the era of the "Kennedy Court" is effectively over, that the Court is now rather firmly in the hands of the conservative majority of which Kennedy is now a fairly consistent part (rather than the "swing justice" who is willing, on a suitable number of occasions, to break ranks). At best, he is the Scott Brown of the conservative bloc, which, for liberals, is far better than his being Mitch McConnell, but still not worth praising to the skies.
What provokes this particular posting, though, is a quote from within the column, from Kennedy's opinion in the Hastings Law School case on the Christian Legal Society: "[S]peech is deemed persuassive," said Kennedy, "based on its substance, not on the identity of the speaker." But, of course, Kennedy, as one of the leading "Supreme Court papalists," i.e., someone who views the Court as literally the last word on the meaning of the Constitution (see, e.g., his opinion in Boerne), is remarkably impatient with anyone who dares to disagree with interpretations of 5-person majorities of the Court. To be sure, he's not relying on "the identity" of a particular justice, but he is surely relying on the altogether contingent fact that five justices happened to adopt a given view, for whatever reason, over what is often altogether persuasive dissents. Constitutional law in the US (and perhaps anywhere) is fundamentally authoritarian inasmuch as it relies on a given institution to be the "ultimate interpreter" of inherently debatable propositions.
I suppose what Kennedy means is that editorial writers and law professors (and even ordinary citizens) are free to disagree with Supreme Court decisions, but, as law professors, we have to teach our students that it really doesn't matter, at the end of the day, whether they are "persuaded" by the majority, since what really counts, as Justice Brennan told all of his clerks immediately after meeting them, what really counts if the "rule of 5," i.e., whether the proposition got five votes.
On another matter, Greenhouse also notes that Kennedy, who is now 74 and has been on the Court a full 22 years, has no apparent intention to retire. "The man obviously still loves his job . . . " she writes, "and he has no reason to leave it." That is, he has "no reason" from his own egoistic perspective, since he is both a key vote for the reigning majority and, when he wishes to be, the swing justice who can toss the liberals a bone or two. And he gets to enjoy the particular kind of fawning that accompanies being a Supreme Court justice (including lots of opportunities for foreign travel and bloviation about how law rests on rational persuasion rather than political power). But, of course, from a public-regarding perspective, he (and every other justice who has served more than 18 years) has every reason to leave, since life tenure really no longer, assuming it ever did, serves the public interest. If Obama is re-elected in 2012 (which I think is an almost overwhelming probability given the disarray in the Republican Party and the current lack of a truly credible challenger to Obama), then I assume that we'll be treated to the spectacle of Scalia and Kennedy trying to hang on until 2017 in order to deprive him of an appointment that might actually have real consequences for the Court. (Needless to say, it is overdetermined that I think that Justice Ginsburg should announce her retirement with some dispatch. By the end of the 2010 term, she will have had her 18 years, and it will be time mfor her to go.)
David Souter (a perfectly fine justice who graced the Court) proved that he was perhaps the least narcissitic justice ever to serve on the Court, by retiring with consummate grace at the end of his 18th year on the Court and making way for someone new. Incidentally, a very fine forthcoming biography of William Brennan by Stephen Wermeil and Seth Stern demonstrates Brennan's own narcissism with regard to his unwillingness to retire, so I certainly don't mean to suggest that conservatives are necessarily less public-regarding than liberals. Ginsburg will be an interesting test case, since there's really no excuse, beyond her personal preference, for remaining on the Court. Justice Breyer is in a somewhat more complex situation. His 18th year will come at the end of the 2011 term, in June 2012. One could easily predict that the Republicans will do whatever it takes to prevent Obama from making an appointment at that time, even it appears likely that he will win re-election. And, of course, if there is any real doubt about that, then that clinches the case for delaying tactics. If Breyer, who is also now in his 70s, wishes to assure a Democratic successor--and one of the problems with life tenure is precisely that it invites such political gaming--then he, too, should consider an earlier resignation. Posted
11:42 AM
by Sandy Levinson [link]
(10) comments
Dan Balz has an interesting story in the Washington Post on attempts by the Democratic and Republican Parties to create a saner process of choosing presidential candidates in 2012. Not surprisingly, issues include trying to limit the exaggerated importance of the early states (especially Iowa and New Hampshire), delegate allocation (an interesting idea some Republcians are floating is that early primaries have to be proportional, whereas later primaries can adopt the traditionally Republican winner-take-all rule). There is no discussion in Balz's article of open- versus closed-primaries, and, of course, I'm assuming that Texas will continue to operate under its unique mix of primary and caucus (that Clinton's operatives didn't figure out, to her detriment). It will, of course, be extremely interesting to see if either (or both) of the parties can actually effectuate any signifciant changes. Presumably, for better and worse, President Obama will exercise undue influence in any decisions of the Democratic Party--at this point, does anyone foresee a serious primary challenge to Obama (I don't)--whereas the Republican contest should make the 2008 season look like a tea party (so to speak). I assume that the Republicans, if they are to act, must act very, very soon, while they can be said to be behind a quasi-Rawlsian veil of ignorance regarding who the actual candidates are and who will be helped or hurt by any particular change.
In any event, it will be interesting to see if either party is actually capable of engaging in serious structural change. (Neither party seems interested in addressing the egregious electoral college, which generates some of the most pathological features of the final campaign and its concentration on the relatively few "battleground states.") Posted
6:57 PM
by Sandy Levinson [link]
(66) comments
Wednesday, July 14, 2010
Andy Koppelman on the DOMA litigation
JB
Followingourpreviousdiscussion, Andy has an op-ed in the LA Times explaining why the Supreme Court might strike down section 2 of DOMA. Here's a taste:
This Supreme Court is unlikely to conclude that same-sex marriage must be allowed in all states. But you can invalidate DOMA without going that far, by focusing on its unprecedented, blunderbuss character.
On the current Supreme Court, this case would probably depend on the swing vote of Justice Anthony M. Kennedy. (If he is still there when it is heard — appeals take years, and he turns 74 later this month.) In a 1996 decision striking down a Colorado law that repealed all antidiscrimination protection for gay people, he noted that it "has the peculiar property of imposing a broad and undifferentiated disability on a single named group." This kind of imposition "is unprecedented in our jurisprudence," and he declared that it "is not within our constitutional tradition to enact laws of this sort." Similarly, in a 2003 decision invalidating a law banning homosexual sex, he observed that such gay-specific laws were very recent, originating in the 1970s. That same logic might well condemn DOMA, but it would be unlikely to invalidate the marriage laws of individual states.
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