Thursday, May 16, 2013
"Declare Victory and Get Out?" The Future of the AUMF
Today the Senate Armed Services Committee is conducting a hearing into the future of the September 2001 AUMF. Over at the informative Lawfare blog, the two options on offer are to replace it with an authorization tailored to the new circumstances of a dispersed war against many different terrorist groups or, in the words of Steve Vladeck and Jennifer Daskal in yesterday's NYT, to "declare peace" and get out. In a world in which we did not have to contend with political parties, I would favor the latter option. What my book Long Wars and the Constitution calls the "9/11 War" against al-Qaeda and the Taliban is overdue for a breathing space in which we can assess it from a distance. Presidents Bush and Obama certainly haven't helped -- try to recall a fundamental policy statement in which either president set forth meaningful criteria for success or failure. It's as if the presidents don't want the war to end. Why might that be? In Long Wars, I reject answers based on eighteenth-century theories about presidential motivation. In other words, it's not because they are power-hungry or want to expand the so-called "imperial presidency."
Wednesday, May 15, 2013
David Ignatius can't connect the dots, either
David Ignatius is simply the latest leading pundit who demonstrates an incapaity to connect the dots relevant to his own analysis. In a column in the May 16 Washington Post, he says many altogether correct things. Writing of the current scandals, he says, "What should frighten the public is not the federal government’s monstrous power but its impotence....." The only thing that Congress can do is engage in highly partisan "investigations" most of which simply can't be taken seriously (such as the sudden emergence by non-libertarian Republicans as stalwart defenders of the press after earlier behaving like mad dogs with regard to "security leaks" and demanding that no stones be left unturned in efforts to catch leakers." No doubt there is some criminal stupidity worth investigating vis-a-vis the IRS, but equally worth investigating, of course, iw the ability of big money to game the IRS system by corrupting our political system and getting tax exemption for doing it. No doubt the response of the cowed IRS will be shutting down any serious investigation of 501(c)4) groups at all, so that the American taxpayer can in effect subsdizaie our own further descent into plutocracy.
Sunday, May 12, 2013
Northwestern Symposium on Martin Redish
Northwestern Law colleague and friend Martin Redish has been hugely influential
in the free speech area. His work has
been cited by the Supreme Court a number of times, and he is probably more
influential than any other scholar in transforming the Court’s approach to
commercial speech and campaign finance.
Friday, May 10, 2013
3D Printers and Guns
Gerard N. Magliocca
The State Department's order (or "request") to takedown software that would let people print guns on a 3D printer raises some fascinating issues. The Government wants to see whether making this software available violates certain arms export statutes, in part because 100% plastic guns would be very hard for airport security to detect.
Thursday, May 09, 2013
The CIA and Drone Strikes
One of the main themes of my forthcoming book Long Wars and the Constitution is that we can gain insight into the unconventional and seemingly novel “war on terror” by looking closely at the history of the cold war. This approach is especially helpful now in assessing the charges being leveled against the CIA because of the ongoing drone war being carried out in multiple countries under the auspices of the September 2001 AUMF. It is doubtful anyone is entirely happy with the results of the drone war and the civilian casualties that are its foreseeable consequences. But the drone war illustrates several things at once about the relationship between the “9/11 War” (my preferred term for the “war on terror”) and the cold war.
Wednesday, May 08, 2013
How “Robust” is Appellate Review of Courts-Martial?
Eugene R. Fidell
Monday, May 06, 2013
John Bingham and Racial Preferences
Gerard N. Magliocca
With the Court's decisions on racial preferences and on the Voting Rights Act looming, I was mulling over something that I found in a letter that John Bingham wrote in 1877. When the briefs were being written in the University of Texas case, I was asked by some attorneys whether Bingham said anything about the subject that they could use. I said no. Upon reflection, though, I suppose he he did say one thing that was interesting.
Friday, May 03, 2013
Announcing Long Wars and the Constitution
Why Everyone Should Read Jack Goldsmith, "The Trust Destroyer"
Another must-read piece, also, like Steve Coll's New Yorker essay, a review of Mark Mazzetti's The Way of the Knife: The CIA, a Secret Army, and a War at the Ends of the Earth, is Jack Goldsmith's "The Trust Destroyer," in the current New Republic. Goldsmith (a friend and sometime colleague at the Harvard Law School) is usually thought of as being on the more conservative side of the spectrum from Coll, but their take on the book, and on the deficiencies of the Obama presidency--again, this is relevant to Mary Dudziak's critique--is remarkably similar. The Administration is obsessed with secrecy and fundamentally unwilling to work with Congress (perhaps understandably, in terms of contemporary partisan politics), and the cost is (justified) erosion of trust in the presidential apparatus, including Obama himself. Should we have a genuinely public debate about what forms new congressional legislation might take with regard to regulation of drones and the use of special forces in countries with which we are not at war, I'm not positive how I'd come out, but I agree with both Goldsmith and Coll that the quality of our democracy is being eroded by the coy nature of such debate as occurs, where an Administration official makes a speech, at Oxford, Harvard, or wherever, or the President says something cryptic at a news conference, or, most notoriously, someone leaks the "White Paper" without, however, publicly addressing what many of us view as its near-bizarre notion of "imminence" with regard to justifying assassination. [UPDATE: A major theme of Steve Griffin's fine new book, which I happily blurbed, is that we have never truly thought through the legal doctrines required to justify what has become basically common practice since Truman's intervention in Korea. Steve emphasizes not only the changing nature of the challenges facing the US and its presidents, but also, crucially, the remarkably enhanced capabilities that presidents have in their capacity as "commanders-in-chief." In addition to weaponry that even Truman, who "dropped the Bomb," could not have envisioned, there is also the creation of "special operating forces" and the parallel airforce now apparently under the control of the CIA.
Erie Railroad v. Tompkins and the New Deal Constitution
Last week Richard Epstein and I were on a panel at AEI on the New Deal Constitution, commemorating the 75th anniversary of the decisions in Erie Railroad v. Tompkins and United States v. Carolene Products. The video is available here. Michael Greve kicks it off with a fifteen minute introduction to the two cases; Richard's talk begins about 14:30, and my talk begins about 24:55. I discussed both Erie and Carolene Products in my talk; in this blog post, I will say a few words about Erie.
Thursday, May 02, 2013
Must We Be Faithful to Original Meaning?
I've posted my latest article, "Must We Be Faithful to Original Meaning?" on SSRN. The essay came out of a May 2012 conference on Living Originalism held at Hebrew University in Jerusalem. It expands on some of the arguments I made in the book for my version of original meaning originalism. The essay closes by discussing a few analogies between different versions of originalism in American legal theory and different theories of Biblical and Talmudic interpretation in Jewish law. Here is the abstract:
The Left's Failure and the Mismatch Effect
Brian Tamanaha's essay, "The Failure of Crits and Leftist Law Professors to Defend Progressive Causes" is characteristically provocative. Here is one especially interesting nugget from Brian's essay:
Wednesday, May 01, 2013
Why everyone should read Steve Coll's review in the New Yorker: A point on Mary's side
Anyone interested in the more ominous side of the Obama presidency, where it is reasonable, as Mary Dudziak has recently suggested, to focus more on the contingency of who is President than on the deep structures established by the Constitution, should read Steve Coll's review in the current (May 6) New Yorker of two recent books on the rise of targetted assassinations (and much else) by Mark Marzetti (The Way of the Knife) and Jeremy Scahill (Dirty Wars). The single most depressing line is a (purported) quote of the President made during a Situation Room meeting in which a member of the Joint Chiefs of Staff questioned the rise of a parallel airforce controlled by the CIA: According to Marzetti, Obama said, "The C.I.A. gets what it wants." (One assumes that this was a performative utterance, expressing Obama's own preferences, rather than a merely descriptive statement made by a man lamenting that he did not have the power, as President of the United States, to prevent the CIA getting "what it wants.") Were this a statement of George W. Bush, I presume that many people would be up in arms (so to speak). Coll suggests that the message of the two books, and much contemporary journalism, is that the Obama Administration, far more than its predecessor Bush Administration, has adopted a policy of cold-blooded assassination without any public disclosure, save for the "White Paper," of even the general criteria, let alone the specifics, that have resulted in de-facto capital punishment for an undisclosed, by obviously non-trivial, number of America's enemies. (At one point, the CIA claimed, preposterously, that there was no collateral damage in the drone attacks, that everyone attacked was in fact an enemy, a position similar to that taken in Vietnam during Operation Phoenix.) The Obama Administration's position is ultimately "Trust Us" (and accept the fact that we're leaving a legacy of remarkably unconstrained powers, at least in conventional terms where we look to courts, Congress, or an informed press to supply some constraints).
The Health Care Case -- The Book!
Oxford Press has just published The Health Care Case: The Supreme Court's Decision and Its Implications, which I edited along with Gillian Metzger and Trevor Morrison. Many Balkinization bloggers have contributed chapters. The Table of Contents appears below:
Defining "the recess"
Gerard N. Magliocca
The Noel Canning case addressing the President's recess appointment power should be the star of the next Supreme Court Term, assuming that certiorari is granted. I want to raise the following question about the panel opinion's interpretation of "the recess" to mean only an intersession recess.
A Reconstruction of Conventional Understandings of Jurisprudence
The Third Pillar of Jurisprudence: Social Legal Theory, available here.
A Leftist Critique of the Left
"The Failure of Crits and Leftist Law Professors to Defend Progressive Causes," available here.
Tuesday, April 30, 2013
Judging the Case Against Same-Sex Marriage
Both Mary and I are right
I appreciate Mary Dudziak's thoughtful post on the legitimate disillusion with aspects of Barack Obama's presidency. I think it is a disgrace, for example, that he so completely capitulated to the well-off complainers about relatively modest delays in air travel while he has remained basically silent about the insane sequester cuts that are affecting those who do not regularly engage in air travel. Far better for the "sequester" to be considered on an "all-or-nothing" basis than allow Republicans and scared Democrats to cherry-pick those relatively few aspects of the sequester that impinge on those at the relative top of the class structure (including, I must confess, well-paid law professors like me who fly a lot). I also think that it is fair to criticize Obama (or, for that matter, to praise him) for certain foreign policy decisions given the relative autonomy that American presidents may have in that domain, or in making certain kinds of military decisions.
Monday, April 29, 2013
It’s time for liberals to stop making excuses for Obama
Mary L. Dudziak
Sandy Levinson took Maureen Dowd to task for her column last week, “No Bully in the Pulpit,” which criticized President Obama for failing to pull the votes together to get the gun control bill through the Senate. “Now it's Maureen Dowd who can't connect the dots,” he said.
Sunday, April 28, 2013
Guantanamo as a "Political Prison"