So What

Mark Graber

The recent prison abuse scandals have the same feel of the recruitment scandals that occasionally rock college sports. Once every year or so, a particularly egregious scandal hits the front page, at least of the sports section. University administrators profess shock. Investigations are promised, heads will roll. Sometimes a coach is fired. Then other stories take over the front page. The investigator’s report barely makes the local college newspaper. Two years later, the "disgraced" coach is hired at some equivalent institution of "higher" learning. The real scandal is that everyone knows that published abuses of the recruitment process are probably routine and in most places, and few people really want to do anything about it. What we want as faculty and administrators is plausible deniability, whatever that means.

Guantanamo Bay is no different. Most Americans probably suspect that our nation now routinely tortures persons and that the President has sanctioned this policy. We sort of know this is wrong, but as long as we can maintain plausible deniability, who really cares. Thus, while we profess outrage when stories hit the front page, the outrage vanishes as soon as the stories disappear. Besides, some victims of torture might give up valuable information. Others are no doubt bad people, who might well torture us in appropriate circumstances. Most are people we do not know, and in America, people we do not know are people Americans need not care about. This is the real scandal, and it is about us. Beneath all the media talk of a politics of morality, George Bush and his cohort are deeply amoral people, and American under George Bush is a deeply amoral place. The real challenge for the left is making people care about torture, even when torture is not on the front page.

Posted 11:45 AM by Mark Graber [link] (36) comments

Bush: Do As I Say, Not As I Do

JB

From the New York Times:

President Bush urged Americans to help the neediest among them by volunteering to care for the sick, the elderly and the poor in a Christmas Day call for compassion.

"Many of our fellow Americans still suffer from the effects of illness or poverty," the president said in his weekly radio address. "Others fight cruel addictions, or cope with division in their families, or grieve the loss of a loved one."

"Christmastime reminds each of us that we have a duty to our fellow citizens, that we are called to love our neighbor just as we would like to be loved ourselves," Mr. Bush added. "By volunteering our time and talents where they are needed most, we help heal the sick, comfort those who suffer and bring hope to those who despair, one heart and one soul at a time."

This as the President plans to cut even further from social spending for the poor, the weak, and the helpless, in order to finance (1) the war in Iraq, (2) his ill-advised tax cuts for the wealthy, and (3) his even more ill-advised privatization of Social Security.

One might argue (and many have) that compassion is better exercised through private charity than through public funding. I find this claim (in the current context) implausible for three reasons.

First, there is no reason why we cannot do both; even if increased government spending discourages some private charitable work at the margins, it encourages other forms of private charity through cooperative programs, and the net benefit to the poor is likely to be much higher. The government can also give incentives to private charities through tax benefits to make up for any marginal discouragement it produces. The key point is that the poor are no less helped if the government assists them.

Second, private charity can only do so much, and in many cases the government can reach much further. Despite the traditional stereotype that government inevitably wastes money, the non-profit sector is hardly a paragon of efficiency itself, and government programs often are able to leverage economies of scale that private charities lack.

Third, arguing that charity should be private rather than public simply gives government officials a convenient excuse to employ government monies to line the pockets of (or otherwise benefit) their wealthiest contributors and most influential constituents. The policies of the current Administration are a case in point. When this President exercises compassion in his deeds (rather than in his pretty words), it seems that the compassion he truly wishes to shower is upon the wealthiest individuals (in his tax breaks), the defense industry and Halliburton (in his Iraq policy), large drug companies (in his Medicare reform package), and Wall Street investment houses (in his proposed privatization of Social Security). Surely all of these folks need some brotherly love during this Holiday season, but, I dare say, the poor, the defenseless, and the millions of children in this country without health insurance need it far more.

(P.S. If you are pro-life and wish to add the unborn to this list of whom the government should protect, please see my previous post on what a pro-life Democratic position should look like.)

Posted 10:03 PM by JB [link] (20) comments

A Turkish Immigrant Makes Good in America

JB

According to the Guardian's history of Santa Claus. And you just knew that Coca-Cola had something to do with it, too:

St Nicholas had not previously been particularly plump, but in America he rapidly put on weight and also, reprehensibly, smoked a pipe, as depicted by the New York cartoonist Thomas Nast in Harper's Weekly from 1863 onwards.

In the 1930s the image was further refined when a Swedish artist named Haddon Sundblom started drawing advertisements for Coca-Cola featuring a fat Santa in a red coat trimmed with fur and secured with a large belt: the image that now we know. Sundblom's Santa carried his bottle of coke to quench "a thirst for all seasons" and turned up in annual festive advertisements for the drink for the next 30 years. As such, this entirely secular figure has now become an inescapable feature of a religious festival, more in keeping with the winter solstice's pagan saturnalia than with an early Christian saint.

Santa Claus-- he's the real thing.

Posted 2:24 PM by JB [link] (14) comments

The Democratic Pro-life Position

JB

It seems that the Democratic Party is going to flirt with a more moderate stance on abortion. If so, it should be true to the larger principles of the party-- sex equality and equal opportunity.

Abortion rights are a matter of sex equality. They are a matter of sex equality because laws against abortion compel women to become mothers against their will, with all the duties and responsibilities that go with parenthood. Given that women will most likely bear most of the responsibility for child care (particularly if the father is absent) laws against abortion put women in a very different position than men; they require them to devote substantial portions of their lives to raising children, forgo opportunities in the public world of work, and undermine their equal citizenship with men.

If, despite this, one feels it important to restrict abortion because of the overwhelming interest in potential human life, one must attempt to remedy the problem of sex inequality in another way. Pro-life Democrats can work to lessen the stigma of surrendering a child for adoption, but that stigma is unlikely to fade soon no matter how earnest the effort. Far more important is support for social programs that help working women with the burdens of child care and with the costs of raising children, including nutrition programs, educational programs, subsidized health insurance for mother and child, and subsidized child care. A child's life does not stop after it leaves the womb; and if one really wants to be a "pro-life" Democrat, one should be pounding the table for protecting born children as well as unborn ones, as well as protecting the equality and equal opportunity of the women who gave birth to them.

Posted 3:49 PM by JB [link] (12) comments

The Passion of Matthew Yglesias

JB

Priceless.


Posted 8:45 PM by JB [link] (10) comments

Are War Crimes Grounds For Impeachment?

JB

Commenting on my earlier post, Thomas asks:

"High crimes and misdemeanors" = "morally unconscionable"?

Why wait for the proof in this case? I mean, can't we impeach for a "morally unconsionable" decision to go to war in Iraq?

How about the "morally unconscionable" tax cuts?

Shouldn't we expect a showing of treason or abuse of office, and shouldn't we insist that mere policy disagreements aren't sufficient to demonstrate those?

All good questions.

One should wait for proof because that should be required for impeachment.

Ordinarily the fact that Congress thinks the President has acted immorally should not, without more, be grounds for impeachment. But the allegations in this case concern much more than that. The charges, if true, suggest a real abuse of power (and abuse of office) and violations of both domestic and international law.

I noted earlier that the Administration's torture memo tried to offer a very narrow standard of torture, and so his lawyers might claim that what was ordered was not technically "torture" under the (unreasonable) interpretation that the OLC torture memo gives to that word. Nevertheless, if the allegations are correct, it would very possibly make the President guilty of war crimes. And it would almost certainly be in violation of the Geneva Conventions. Not all violations of international law should be impeachable offenses, but surely ordering the abuse and torture of prisoners should be.

I hardly think that ordering tax cuts and ordering torture deserve equal degrees of moral opprobrium. Nor do I think that criticizing a presidential decision to order torture evidences a mere "policy disagreement." If we have become so jaundiced as to reach that conclusion, we have surely lost our way as a nation.

Posted 8:27 PM by JB [link] (14) comments

Why is this man nominated to be the nation's chief law enforcement officer?

JB

It's hard to believe it, but the new Attorney General designate is starting to make John Ashcroft look good by comparison. Alberto Gonzales has let his loyalty to the President lead him to do even worse things.

From Newsweek:

The CIA had a question for the top lawyers in the Bush administration: how far could the agency go in interrogating terror suspects—in particular, Abu Zubaydah, the close-mouthed Qaeda lieutenant who was resisting standard methods? So in July of 2002 the president's chief counsel, Alberto Gonzales, convened his colleagues in his cozy, wood-paneled White House office. One by one, the lawyers went over five or six pressure techniques proposed by the CIA. One such technique, a participant recalls, was "waterboarding" (making a suspect think he might drown). Another, mock burial, was nixed as too harsh. A third, the open-handed slapping of suspects, drew much discussion. The idea was "just to shock someone with the physical impact," one lawyer explained, with "little chance of bone damage or tissue damage." Gonzales and the lawyers also discussed in great detail how to legally justify such methods.

Among those at that first White House meeting was Justice Department lawyer John Yoo, who sat on a couch along the wall. And partly out of the discussions in Gonzales's office came the most notorious legal document to emerge from last spring's Abu Ghraib interrogation scandal. This was an Aug. 1, 2002, memo—drafted by Yoo, signed by Assistant Attorney General Jay Bybee and addressed to Gonzales—which provoked outrage among human-rights advocates by narrowly defining torture. The memo concluded, among other things, that only severe pain or permanent damage that was "specifically intended" constituted torture. Mere "cruel, inhuman or degrading" treatment did not qualify.

At the White House meeting, Gonzales was concerned about observing the law, the participant recalls. "We didn't want to go over the line," he says. But Gonzales's worry was: "Are we forward-leaning enough on this?" "That's a phrase I heard Gonzales use many times," recalls this lawyer. "Lean forward" had become a catchphrase for the administration's offensive approach to the war on terror. "And the second part of that statement was always, 'Prevent an attack, save lives.' If Gonzales had any role in this, it was to be the fair arbiter of 'Are we doing enough?'"

Such aggressiveness after 9/11 was typical for Alberto Gonzales, the soft-spoken Harvard Law graduate who has been George W. Bush's lawyer since the latter's days in the Texas governor's mansion. Gonzales's legal and ethical advice will be the focus of confirmation hearings next month on his nomination as Bush's second-term attorney general. In the first months after 9/11, Gonzales helped to craft some of the most momentous and controversial decisions of Bush's presidency. Among them: to create military commissions for the trials of terrorists, to designate U.S. citizens as "enemy combatants" and to disregard the Geneva Conventions in the treatment of prisoners at Guantanamo Bay. But until now he has steered clear of the spotlight. "He's kind of an enigma," says one lawyer who worked with him. "His defining characteristic is loyalty to the president."

Yet memos reviewed by NEWSWEEK and interviews with key principals show that Gonzales's advice to the president reflected the bold views laid out in the Aug. 1 memo and other documents. Sources close to the Senate Judiciary Committee say a chief focus of the hearings will be Gonzales's role in the so-called "torture memo," as well as his legal judgment in urging Bush to sidestep the Geneva Conventions. In a Jan. 25, 2002, memo to Bush, Gonzales said the new war on terror "renders obsolete Geneva's strict limitations on questioning of enemy prisoners." Some State Department lawyers charge that Gonzales misrepresented so many legal considerations and facts (including hard conclusions by State's Southeast Asia bureau about the nature of the Taliban) that one lawyer considers the memo to be "an ethical breach." In response, a senior White House official says Gonzales's memo was only a "draft" and just one part of an extensive decision-making process in which all views were aired.

By several accounts, Gonzales and his team were constantly looking to push legal limits, to widen and maximize Bush's powers. Just two weeks after September 11, an earlier secret memo drafted by Yoo had landed on Gonzales's desk, arguing there were effectively "no limits" on Bush's powers to respond to the attacks. Startlingly, the memo said the president could deploy military force "pre-emptively" against terror groups or entire countries that harbored them, "whether or not they can be linked to the specific terror incidents of Sept. 11." The president's decisions "are for him alone and are unreviewable," the memo said. Never before disclosed, the Sept. 25, 2001, memo was quietly posted on an obscure government Web site late last week. The 15-page memo is the earliest known statement of Bush's doctrine of pre-emptive war.

Last June, Gonzales indicated he no longer held some of the extreme views of the president's "unlimited" powers first laid out in this memo. Amid the furor over the Abu Ghraib Prison photos that depicted Iraqis being abused and humiliated by U.S. soldiers, Gonzales insisted to reporters that the "torture" memo of Aug. 1 and other documents then making headlines were little more than "irrelevant" legal theorizing. It is not surprising why Gonzales was distancing himself: the Justice Department's Office of Professional Responsibility recently launched an investigation into the origins of the Aug. 1 memo. The probe will look into whether the lawyers were irresponsible in pushing beyond the normal boundaries of advocacy. In a tense meeting last June, Jack Goldsmith, then head of the Justice Department's Office of Legal Counsel, told Gonzales he was withdrawing the Aug. 1 memo. Goldsmith then resigned—at least partly due to his discomfort about the memo. It was only then that Gonzales decided to distance himself from it. (Goldsmith declined to comment.)

But there is no evidence that Gonzales ever rejected such reasoning before the Abu Ghraib scandal came to light. On the contrary, sources say, he and his staff relied heavily on John Yoo and his legal theories. Most observers still expect Gonzales to be confirmed by the GOP-majority Senate. Yet it's clear he'll face some tough questioning first.

Posted 8:07 PM by JB [link] (18) comments

It's beginning to look a lot like Christmas an impeachable offense

JB

There is now some but not conclusive evidence that the President himself authorized abuse of prisoners by Executive Order. This from Asia Times:

McClellan also insisted there is "no executive order relating to interrogation techniques. When it comes to military detainees and interrogation methods, those are determinations made by the Department of Defense."

However the ACLU released copies late Monday of a two-page FBI e-mail message dated May 22 that refers repeatedly to an executive order signed by Bush.

The message "states that the president directly authorized interrogation techniques including sleep deprivation, stress positions, the use of military dogs, and 'sensory deprivation through the use of hoods, etc.'," but [it] bars [FBI] agents from employing those techniques, the ACLU said in a statement.

You can find the ACLU memos here. This memo is particularly interesting.

Again, there is no smoking gun, just lots of interesting questions. We should not prejudge what the President did nor did not do until there is further proof. But my view can be stated fairly simply: If the President did authorize inhumane treatment of prisoners, whether or not his lawyers could claim that this was not technically in violation of various international agreements to which the United States made numerous reservations, these acts are morally unconscionable. He has shamed the country and should be removed from office.

Posted 1:50 PM by JB [link] (13) comments

The Coverup Continues To Unravel

JB

From the New York Times:

F.B.I. memorandums portray abuse of prisoners by American military personnel in Iraq that included detainees' being beaten and choked and having lit cigarettes placed in their ears, according to newly released government documents.

The documents, released Monday in connection with a lawsuit accusing the government of being complicit in torture, also include accounts by Federal Bureau of Investigation agents who said they had seen detainees in Guantánamo Bay, Cuba, being chained in uncomfortable positions for up to 24 hours and left to urinate and defecate on themselves. An agent wrote that in one case a detainee who was nearly unconscious had pulled out much of his hair during the night.

One of the memorandums released Monday was addressed to Robert S. Mueller III, the F.B.I. director, and other senior bureau officials, and it provided the account of someone "who observed serious physical abuses of civilian detainees" in Iraq. The memorandum, dated June 24 this year, was an "Urgent Report," meaning that the sender regarded it as a priority. It said the witness "described that such abuses included strangulation, beatings, placement of lit cigarettes into the detainees' ear openings and unauthorized interrogations."

The memorandum did not make clear whether the witness was an agent or an informant, and it said there had also been an effort to cover up the abuses. The writer of the memorandum said Mr. Mueller should be aware of what was occurring because "of potential significant public, media and Congressional interest which may generate calls to the director." The document does not provide further details of the abuse, but suggests that such treatment of prisoners in Iraq was the subject of an investigation conducted by the bureau's Sacramento office.

Beyond providing new details about the nature and extent of abuses, if not the exact times or places, the newly disclosed documents are the latest to show that such activities were known to a wide circle of government officials.

The documents, mostly memorandums written by agents to superiors in Washington over the past year, also include claims that some military interrogators had posed as F.B.I. officials while using harsh tactics on detainees, both in Iraq and at Guantánamo Bay.

In one memorandum, dated Dec. 5, 2003, an agent whose name is blanked out on the document expressed concern about military interrogators' posing as F.B.I. agents at the Guantánamo camp.

The agent wrote that the memorandum was intended as an official record of the interrogators' behavior because, "If this detainee is ever released or his story made public in any way, D.O.D. interrogators will not be held accountable because these torture techniques were done by 'F.B.I.' interrogators. The F.B.I. will be left holding the bag before the public." D.O.D. is an abbreviation for the Department of Defense.

Asked about the possible impersonation of F.B.I. agents by military personnel, Bryan Whitman, the deputy Pentagon spokesman, said Monday that "It is difficult to determine from the secondhand description whether the technique" was permissible.

The Pentagon did not offer any fresh reaction to the descriptions of alleged abuse. But it said in response to other recent disclosures that the Defense Department did not tolerate abusive tactics and that some of the allegations contained in such documents were under investigation.

The documents were in the latest batch of papers to be released by the government in response to a lawsuit brought by the American Civil Liberties Union and other groups to determine the extent, if any, of American participation in the mistreatment of prisoners. The documents are the most recent in a series of disclosures that have increasingly contradicted the military's statements that harsh treatment of prisoners happened only in limited, isolated cases.

Posted 7:44 AM by JB [link] (10) comments

Let's Get The Criticisms Right, Shall We?

JB

This poster from the Center for American Progress tries to raise the public's awareness of the dangers of appointing another justice like Antonin Scalia or Clarence Thomas. The problem is that it tends to confuse whether Scalia or Thomas think a policy is constitutional with whether they support the policy itself. And this is a very bad mistake to make, because it lends credence to the notion that liberals too often confuse what is just with what the Constitution requires.

The irony is that if the CAP simply reported the facts, it would still have a pretty persuasive indictment of the work of these two Justices. Regular readers of this blog know that I am a fan of neither Scalia's nor Thomas's jurisprudence, but I think they deserve to be criticized fairly based on a reasonable assessment of their records.

Here is what the CAP says about Scalia and Thomas, followed by my explanation of what is actually the case.

(1)"Scalia Opposes Efforts to Desegregate Schools." In fact, Scalia opposes the use of (some) federal judicial power to desegregate schools; he does not oppose desegregation per se.

(2)"Thomas favors state-sponsored religion." In fact Thomas believes that there is no constitutional bar for a state to have an established church as long as non-believers are not coerced. He does not say that he thinks that all (or any) states should have established churches.

(3)"Scalia supports sex discrimination." In fact, Scalia believes that separate educational institutions for men and women (or institutions just for men or just for women) are constitutional where there is a long history of sex-segregated practice. He does not say that states should have such institutions.

(4)"Thomas would allow the President to effectively waive due process rights." This one is more or less correct. Thomas argues that the courts should defer to good faith presidential decisions to declare certain persons as unlawful combatants and to detain them indefinitely without access to legal counsel. Thomas believes that the procedures offered by the President are all the process that is due, not that the President has the power to waive due process rights.

(5)"Scalia and Thomas oppose family and medical leave." Scalia and Thomas (and Justice Kennedy, too) believe that States cannot be sued for money damages if they fail to provide family and medical leave to their employees. They do not say that they oppose family and medical leave as a matter of policy.

(6)"Scalia and Thomas support executing the mentally retarded." Scalia and Thomas believe that doing so does not violate the Eighth Amendment's ban on Cruel and Unusual Punishments. They do not say that they favor the practice as a matter of policy.

(7)"Scalia and Thomas support brutality against prisoners." Once again, Scalia and Thomas believe that certain forms of prisoner mistreatment or brutality (which they regard as insignificant or which they do not believe involve "punishment") do not violate the Eighth Amendment's ban on cruel and unusual punishments. They do not say that they approve of these practices by states.

(8)"Scalia and Thomas support criminalizing consensual sex." Scalia and Thomas believe that the Due Process Clause does not prevent states from criminalizing consensual sex. They do not say they support such laws, and indeed, in Thomas's dissent in Lawrence he specifically says that he would not support Texas's law.

(9) "Scalia and Thomas oppose federal environmental regulation of polluters." Scalia and Thomas believe that the EPA should not have authority to prevent certain forms of air pollution even when states improperly fail to act. They do not say that they oppose federal regulation, merely that Congress has not authorized it.

(10) "Scalia and Thomas would allow states to discriminate against the disabled." Somewhat more accurate, but still not quite right. Scalia and Thomas believe that Congress does not have the power to allow suits for money damages against states when they discriminate against the disabled, but they have not said that states do not violate federal law when they do so, and presumably injunctive relief is still available.

Here's what the CAP should have said:

(1)Scalia wants to cripple judicial efforts to desegregate racially segregated public schools.

(2)Thomas would allow states to have established churches, and use tax money to promote a state's favored religion.

(3) Scalia does not believe that sex discrimination violates the Constitution if the practice has a long history.

(4) Thomas would allow the President to declare any citizen an unlawful combatant and imprison him indefinitely without any protections of the Bill of Rights.

(5) Scalia and Thomas would allow states to avoid paying damages for violating federal guarantees of family and medical leave.

(6) Scalia and Thomas would allow states to execute the mentally retarded.

(7) Scalia and Thomas don't think that brutality against prisoners violates the Constitution.

(8) Scalia and Thomas would allow states to criminalize consensual sex between unmarried adults.

(9) Scalia and Thomas would strip the EPA of the ability to protect air quality.

(10)Scalia and Thomas would allow states to avoid paying damages when they discriminate against the disabled.

It seems to me that these claims are troublesome enough-- particularly number 4-- without any additional embellishment. There is no need to misstate things to explain why the public should not support more judicial appointments like this.

Posted 4:14 PM by JB [link] (42) comments

Why Me Worry

Mark Graber

Conservatives eager to take even fuller possession of the federal judiciary may wish to temper their enthusiasm a bit. Some preliminary findings suggest that conservative judicial activism may face similar difficulties as liberal judicial activism. In the most important political science work published this generation, Gerald Rosenberg asserted that such decisions as Brown v. Board of Education, Roe v. Wade, and Miranda v. Arizona did far less to secure desegregated education, access to legal abortion, and civilized police interrogation than was commonly supposed. Although Rosenberg’s thesis has been subject to substantial scrutiny (I have my doubts on several matters), the general principle seems sound. Judicial decisions often prove hollow victories when they must be implemented by hostile elected officials.

Progressives seem as able to frustrate conservative judicial activists. A forthcoming book by Jon Gould presents a strong argument that hostile judicial decisions have not prevented universities from banning hate speech and adopting other speech codes hated by conservative activists. Having been part of a graduate admissions process for a number of years, I can attest that progressives will have no difficulty getting around whatever limits Grutter and Gratz place on affirmative action. Now Martin Sweet, a political scientist who teaches in Florida, is circulating an interesting manuscript detailing how legislatures are merely refining their minority set-aside programs in response to judicial decisions declaring such measures unconstitutional. In short, many of the same forces that inhibited the implementation of Brown and other progressive decisions are inhibiting the implementation of Croson, RAV and other conservative decisions. As is the case with the Rosenberg thesis, criticisms will no doubt arise (and Sweet is aware that conservative judicial activism has had an adverse influence on the programs he studies). Still, one should not presume that Rehnquist Court decisions declaring affirmative action at a constitutional end will place affirmative action at a political end.

These findings, of course, are a poor balm for progressives. They do indicate that a federal judiciary even more conservative than at present will have more difficulty ensuring compliance in recalcitrant liberal jurisdictions. The real problem is that fewer and fewer strong liberal jurisdictions exist. Where there is strong support for affirmative action and related policy, elected officials will usually find some way of maintaining the policy. Where there is not, judicial decisions are likely to give whites in power excuses to end programs they never felt much enthusiasm about in the first place.

Posted 1:41 PM by Mark Graber [link] (2) comments

Why War Can Be Good For Civil Liberties

JB

This op-ed by Nathaniel Frank points out that our shortage of troops in crucial specialized positions in Iraq has been caused in part by the discharge of gay and lesbian soldiers who could have staffed positions as translators and other specialists. He argues that it is time for the Clinton era don't-ask-don't-tell policy to be overturned.

Frank's argument suggests an important point about constitutional change. Although we often think of war as a time when civil liberties are compromised, war can sometimes promote the recognition of new civil liberties. For example, Harry Truman's desegregation of the armed forces was spurred on by the U.S.'s victory against a racist regime in Nazi Germany, and the Supreme Court's decision in Brown v. Board of Education was influenced both by the World War II experience and by imperatives of the Cold War as American discovered that it had to win the hearts and minds of developing nations in the struggle against Communism. The movement for woman suffrage that led to the Nineteenth Amendment was spurred on by American's quest to make the world safe for democracy in World War I. Suffragettes chained themselves to the White House gates and pointedly asked President Wilson why he didn't make America safe for democracy as well. And of course, the most terrible war in our nation's history, the Civil War, brought three constitutional amendments, the end of slavery, and what Lincoln aptly called a New Birth of Freedom.

When Americans go to war, they often attempt to explain and justify their actions in terms of their proudest aspirations toward democracy, liberty and equality. But these very same explanations and justifications open the door to criticism that America is not living up to its own ideals. And often what comes from this criticism, made more salient by the fact of war, is increased protection for civil rights and civil liberties.

There is certainly no guarantee that war will help the cause of civil liberties. The Cold War brought us not only Brown v. Board but also McCarthyism. World War I brought not only woman suffrage but also the Palmer Raids. As Mark Graber has pointed out, much depends on whether political leaders in power are generally hospitable or inhospitable to civil liberties before the war begins. But events have a way of forcing the hands of politicians, and my suspicion is that the War on Terror will not be remembered solely for the Patriot Act and the detention of unlawful combatants. Having to tell the world that we are in this struggle in order to bring democracy and human rights to the world will raise, all the more clearly, our own failings in the promotion of democracy and human rights in our own country. It is possible that this will take some time, for the President has not shown himself to be a great friend of civil liberties on any number of dimensions. But if America commits itself to the course that President Bush has sent us on-- the promotion of democracy and human rights, we will discover an almost irresistible pressure to reform our own institutions. Allowing gays to serve openly in the military would be a good start.

Posted 8:50 AM by JB [link] (37) comments

The Medals Will Be Coming Though, Soon Enough

JB

President Bush has handed out Medals of Freedom to Tommy Franks, who argued for too few troops in Iraq, Paul Bremer, who disbanded the Iraqi Army, and George Tenet, who told Bush that evidence of WMD's was a slam dunk. All three men were central to creating the fiasco in which we are now lodged.

There is no word yet on who will receive the Medal of Freedom after Bush wrecks Social Security.

Posted 7:55 AM by JB [link] (2) comments

Is Belief in Natural Law An "Embarrassment?"

JB

Kevin Drum opines that Justice Thomas is an embarrassment because he believes in a natural law theory of the Constitution. Thomas Kannawitter, by contrast, argues that Thomas is a great Justice because he believes in a natural law underlying the Constitution that comes from God and that does not change.

I don't think that one's position on natural law matters one way or the other about whether one is doing one's job as a judge well or badly. The real question, it seems to me, is what you think natural law ideas mean for Constitutional interpretation as a practical matter.

Kannawitter seems to assume that belief in natural law is the same thing as belief in original understanding which is belief in the conservative opinions that Justice Thomas espouses, and he further assumes that disbelief in natural law (which he equates, mistakenly with legal realism) is equivalent to belief in a living constitution, which is equivalent to belief in lefty positions on constitutional issues.

He is wrong to assume this. It's quite possible to take the view that the best interpretation of the Constitution is one that which comports with natural law, and that the Framers' understandings are defective, because the Framers supported a wide variety of practices that are inconsistent with natural justice. Similarly, it's entirely possible to believe in natural law and in the idea that the application of moral principles must change with changing circumstances, and hence, that the best interpretation of the Constitution must also change accordingly. Finally, it's possible to be a legal realist about the mechanics of judging-- that is, that judicial decision is inevitably influenced by surrounding historical, political, and social conditions, and that judges are sensitive to underlying facts rather to abstract doctrinal formulas-- and still believe that the best interpretation of the Constitution is one which conforms to one's notion of what natural law requires.

So if Clarence Thomas is, indeed, an "embarrassment," or, to the contrary, a great jurist, it's not because he (a) believes or does not believe in natural law; (b) embraces or rejects legal realism; (c) adheres or does not adhere to original understanding as the touchstone of all constitutional interpretation; or (d) believes that the best interpretation of the Constitution changes or doesn't change over time. For all of these positions can be held (and have been held) by constitutional interpreters with very different political views.

Having seen his work over the course of more than a decade, I have no reason to think that Thomas is appreciably better or worse in terms of his lawyerly skills than many other Justices who have sat on the Supreme Court. The positions he takes are often quite striking, almost to the point of being "off-the-wall," but sometimes ideas once thought "off-the-wall" become orthodoxy later on depending on how the political winds blow. If I have an objection to him, it is that his constitutional vision is very different from mine, and so I think he interprets the Constitution in ways that lead to very unjust and uncalled for results. I think his arguments are often wrong and his assumptions misguided, but that does not make him an embarrassment. It makes him a powerful person who is using his power to move the law in what I consider to be the wrong direction. I would oppose appointing more Justices to the Supreme Court who agreed with him not because they believed in natural law, or original understanding, or disagreed with legal realism, but because they would be likely to push the practical meaning of the Constitution in very unjust and inappropriate directions.

Posted 5:01 PM by JB [link] (27) comments

Nuclear Politics

JB

There are more hints (this from the Washington Post) that the Republicans in the Senate will try the "nuclear option" to end filibusters on judicial nominations.

The Republicans hold all the levers of power and now would like to leverage that power to kick away the last major support of minority rights. It's a tricky calculation for Republicans, because, flush with power, they have many different things they want to do all at once, and they will not be able to do them all. Do they want to entrench themselves in the courts for a generation more than they want to pass major legislative reforms like Social Security privatization or tax reform? If they use the nuclear option, the Democrats may prevent any significant legislation from passing in retaliation. On the other hand, if they want Democratic cooperation, the Republicans may have to accede to a more moderate policy on judicial nominations. And it would not have to be that much more moderate, in fact, because in the past four years the Democrats filibustered only about 10 of the President's 229 nominations.

The smart move would be not to stir up this particular hornet's nest. Judicial nominations are most important for cultural and religious conservatives, who have nowhere else to go. But one should never underestimate the temptation, among those who have recently become very powerful, to wield their power recklessly in order to demonstrate that they have it.

Posted 8:44 AM by JB [link] (17) comments

Why Policy Should Pay Attention To First Encounter Sex

Ian Ayres

Thank you Instapundit. The New York Times writer, CHRISTOPHER SHEA, saw my earlier post on Criminalizing Reckless Sex, when Glen Reynolds linked to it. And the Times Sunday Magazine included the idea in today's "The Year in Ideas" issue:

Ayres and Baker say that raising a legal obstacle to first-time sex without a
condom would reap benefits for public health. ''The lion's share of sexually
transmitted infections are caused by first-time sexual encounters,'' they argue
on the legal-affairs Web site Balkinization. Moreover, failure to wear a condom
may amount to prima facie evidence of disdain for women: ''Few men careful
enough to use a condom are reckless enough to rape. The same recklessness that
causes men to overlook the risk of disease and pregnancy can also lead them to
overlook whether the woman has truly consented.''

Lots of people reasonably are concerned about the criminalization of sexual expression. But the core of this idea is that society needs to pay more attention to the dangers of first-encounter sex. 45% of all sexual pairings are one night stands. Getting unmarried people to use condoms the first time they had sex with someone else -- no matter what -- might make substantial progress on the fight to control sexually transmitted diseases.

Posted 3:12 PM by Ian Ayres [link] (13) comments

Asks Iraqis What They Want

Ian Ayres

In many ways, Bush's reelection was a referendum on Iraq. But Americans aren't the only ones who should be voting. Why not ask the Iraqi people in January whether they want us to stay or not?

If a broad majority of Iraqis said that they want the U.S. to stay, we would have a mandate. But if we found out that a broad majority of the Iraqi people don't want us there, that fact should change the calculus for our exit. We would have to think ourselves as unwanted occupiers instead of liberators.

The plebiscite would not have to be binding on the U.S. We still might need to remain to protect minority populations that we have put at risk.

But some arguments would no longer fly. No self-respecting proponent of democracy could accept the paternalistic argument that we know better than the Iraqis what is in their own country's interest.

Even an argument based on U.S. interests becomes strained. It is one thing to mount a preemptive invasion against Sadam Hussein's regime based on his alleged weapons of mass destruction. It is quite another to continue an occupation to preempt the possibility that a democratically elected regime might devolve toward anti-American chaos. If the threat to America would not be sufficient to justify a new invasion, it should not be sufficient to continue an unwanted occupation.

We can predict what the results of this kind of plebiscite would probably be. In June, a Gallop poll found that more than 60% of Iraqis outside of Kurdish areas favored the immediate withdrawal of U.S./British forces. In sharp contrast, only 3% of the Kurds supported withdrawal. This is the rare issue on which Shiites and the Sunni minority agree - the U.S. should leave.

Of course, opinion polling is not sufficient. A formal plebiscite would increase the legitimacy of the election. It would signal the U.S.'s commitment to democracy-to giving Iraqis a direct voice in their destiny. Candidates can be corrupted, but a referendum on U.S. withdrawal is more transparent.

Moreover, tying the plebiscite to the upcoming election would encourage some more moderates and even dissidents to participate in the election process. Sunni nationals are currently on the fence of whether they should boycott the election. But giving people a direct way to express their dissatisfaction might broaden the geographic area (particularly in Sunni regions) in which polling could go foreword with disruption.

A plebiscite would also force political parties to take stands and educate their constituents on what is really best for the country. It is easy for the man or woman on the street to tell the Gallop poll that the U.S. should leave. But the ruling parties must realize that a continued U.S. presence in the short run is necessary to keep order. If people really look into the abyss of a Sunni-Shiite civil war they may decide they prefer having the coalition troops around. Candidates might be forced to speak more honestly to the voters. In fact, the plebiscite and the debate leading up to it might lead to greater support in Iraq for the U.S. forces and reduce the power of the insurgents.

In short, the process of direct democracy produces a variety of benefits not found with representative democracy. But anyone who has ever waded though a California proposition booklet also knows that direct democracy has its own weakness - especially on issues that have low salience or divergent preferences. But these are certainly characteristics of this problem.

In the past, we have been willing to listen to the unintermediated voice of other electorates. In 1867, the U.S. was negotiating the purchase of the Virgin Islands from Denmark. The U.S. reluctantly gave into the Danes' demand for a plebiscite to give the residents a chance to express their opinion about the transfer. When the vote was finally taken, the population of St. Thomas and St. John supported the sale by a wide margin. Indeed, the results of the plebiscite strengthened the US bargaining position and should have been done much earlier in the process.

President Bush is making the same mistake now that his dad made with regard to lifting sanctions on South Africa. In 1990, Bush Senior wrung his hands about whether it was appropriate to lift trade sanctions against the liberalizing apartheid regime. Were the sanctions still helping blacks to win freedom or were they on net crushing their economic opportunities? What he overlooked was the plebiscite alternative. South African President de Klerk was so desperate to have the sanctions lifted that Bush could have demanded a plebiscite: If a majority of South Africans - black and white -- say so, we'll lift the sanctions.

Of course, there are important questions about how a plebiscite question should be framed. Instead of asking "Should the coalition forces immediately withdraw?," we might provide the alternative "or would your prefer to let your elected officials decide." (The latter is reminiscent of Congress giving Bush a blank check to invade.) Or we could ask "Would you like coalition forces to remain or would you prefer them to be replaced with U.N. forces led by Muslim countries?"

The critic will argue that this is a cynical and reckless proposal that is designed to given the U.S. an easy excuse to cut and run. But a plebiscite might actually force us to focus on the most legitimate grounds for remaining - protecting the Kurds. The Kurdish minority overwhelmingly wants us to remain and would be at great risk if we withdraw.

The risk of our current policy is that at some point in future, we will declare peace with honor-pretending that we are leaving a stable government, when in fact we are once again leaving the Kurds insufficiently protected.

It's time to stop debating the wisdom of whether we should have invaded and start focusing on under what conditions it is wise to stay. Even if it only a thought-experiment, the idea of asking what the Iraqis want provides us with an entry point into grappling with this difficult issue.

If asked, we believe that most Americans and most Iraqis would support giving Iraqis this kind of plebiscite. Maybe we've not been asking the right people the right questions.

Ian Ayres and Barry Nalebuff are coauthors of Why Not?

Posted 10:50 AM by Ian Ayres [link] (19) comments

Digital Mix-- Don't Waste Culture, Recycle Art!

JB

Bricoleurs Unite! You have nothing to lose but your chains.

This Friday, December 10, the Information Society Project at Yale Law School will host The Digital Mix. This is a one-of-a kind musical event about digital music and law combining lectures and performances. The cast of characters includes DJ Spooky (aka that Subliminal Kid), Mark Hosler from Negativland, and Mike Godwin from Public Knowledge.

We will be mixing it up in New Haven. Try to make it if you can.

Posted 5:45 PM by JB [link] (16) comments

Public Employees May Be Fired For Selling Porn On E-Bay

Marty Lederman

Professor Balkin has graciously invited me to blog on Balkinization from time to time. Ideally, this might be the beginning of an effort to consolidate -- here and perhaps elsewhere -- some blogging of various folks associated with the American Constitution Society and the Yale Conference on the Constitution in the Year 2020. I plan to continue blogging on SCOTUSblog; but both Professor Balkin and the folks over at Goldstein & Howe thought it might be useful to cross-post on the two sites whenever developments at the Court might be of special interest to Balkinization readers. So here goes -- a post I made today about another in a series of per curiam reversals of the U.S. Court of Appeals for the Ninth Circuit, this time on an important First Amendment question.

Today the Court unanimously reversed the Ninth Circuit's denial of summary judgment to the public employer in No. 03-1669, City of San Diego v. Roe. There are two substantive parts of the per curiam opinion. The first is fairly unremarkable. The second is potentially quite groundbreaking, and might mean significantly less free speech protection for public employees with respect to speech concerning "private" matters outside the workplace that the Court deems to be not of "legitimate news interest."

Penalties imposed upon public employees on the basis of their speech are generally governed by the Pickering/Connick test, pursuant to which a court balances the interests of the employee, as a citizen, in commenting upon matters of public concern, against the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees. As the terms of this test suggest, a threshold inquiry is whether the public employee's speech touches on a matter of "public concern." If it does not, the speech is not protected at all against public-employer sanction.

Previous Court cases had fleshed out the "public concern" test on the sorts of speech that typically trigger disciplinary action: Internal workplace grievances generally are not protected (Connick), while speech concerning the employer's public policies generally is protected (Perry, Mt. Healthy) -- that is, subject to Pickering balancing -- even if is privately conveyed to the employer (Givhan). Expressions of hostility to political figures -- even when such speech occurs in the workplace -- is speech protected by the Pickering test (Rankin), as is speech concerning government policies unrelated to the employee's own responsibilities (NTEU). (As NTEU explains, when what is at issue is an ex ante, across-the-board employer restriction on a certain category of employee speech -- rather than an ex post, individualized case of discipline in reaction to a particular employee's speech -- the Pickering balancing test is insufficiently protective, and the government employer is put to an even higher burden of justification.) And political-party affiliation is protected even more strongly, at least as to non-policymaking employees (Elrod, Branti, Rutan).

What the Court had not previously discussed, however, is another important category of employee speech: speech that does not involve personal or internal workplace grievances, but that also does not involve political or other "newsworthy" matters -- that is to say, speech on matters of "private" concern outside the workplace. The issue has arisen principally in cases where law-enforcement officers are discovered to have engaged in racist or other offensive conduct outside the workplace, such as performing in blackface in a skit, or participating in the "Good Ol' Boys" events that garnered some notoriety a few years ago.

John Roe was a police officer. In his case, the speech for which he was fired was a video that he made of himself masturbating in a police uniform -- a video that he offered for sale on E-bay, without identifying himself as a government employee, and without in any way identifying the San Diego Police Department, in particular. The Ninth Circuit held that this video was speech on a matter of public concern because it was offered to a (presumably interested) public and was not speech concerning internal workplace grievances. In section A of today's opinion, the Court suggests that perhaps the video should be treated as a matter of public concern because it speaks to "the mission of the employer and the professionalism of its officers," but that the government easily prevails under the Pickering/Connick balancing test: "Far from confining his activities to speech unrelated to his employment," the per curiam Court wrote, "Roe took deliberate steps to link his videos and other wares to his police work, all in a way injurious to his employer. The use of the uniform, the law enforcement reference in the Web site, the listing of the speaker as 'in the field of law enforcement,' and the debased parody of an officer performing indecent acts while in the course of official duties brought the mission of the employer and the professionalism of its officers into serious disrepute."

In section B of the opinion, however, the Court goes much further, and holds that the speech was not a matter of public concern and thus is not subject to Pickering balancing at all. The Court fully embraces its earlier suggestion in Connick that "the standard for determining whether expression is of public concern is the same standard used to determine whether a common-law action for invasion of privacy is present. . . . [P]ublic concern is something that is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public at the time of publication." This embrace of "newsworthiness," and matters of public, as opposed to private, interest, as criteria on which First Amendment protection should turn, is consistent with a recent, prominent impulse in several threads of the Court's free speech jurisprudence, such as in Dun & Bradstreet and in Bartnicki v. Vopper (particularly in the Breyer/O'Connor concurrence). For especially valuable treatments of this trend -- written long before the Court's recent reinvigoration of the "newsworthiness" doctrine -- see, e.g., Robert Post, THE CONSTITUTIONAL CONCEPT OF PUBLIC DISCOURSE: OUTRAGEOUS OPINION, DEMOCRATIC DELIBERATION, AND HUSTLER MAGAZINE v. FALWELL, 103 Harv. L. Rev. 601 (1990); and Cynthia Estlund, SPEECH ON MATTERS OF PUBLIC CONCERN: THE PERILS OF AN EMERGING FIRST AMENDMENT CATEGORY, 59 G.W.L. Rev. 1 (1990). What makes this latest case even more interesting, and potentially quite significant, is that the Court is now suggesting that actual public concern, or actual public interest, is not sufficient to endow speech with full constitutional protection -- the speech must also be, in the Court's view, of "legitimate" news interest, and must, in the Court's view, have "value" to the public.

Posted 12:32 PM by Marty Lederman [link] (29) comments

What's the Matter With Populism?

JB

I just finished reading Thomas Frank's "What's The Matter With Kansas?" Frank is an excellent writer, and the book is an entertaining polemic. The book is about Kansas City as much as it is about Kansas. I'm from Kansas City myself, and much of what Frank says rings true to me.

The book traces the rise of conservative populism in Kansas, and its baleful influence on public policy. The newest form of conservative populism has made the rich richer and the poor poorer, driving even greater waves of anger and resentment, and leading to even more self-defeating policies. There is one passage where Frank imagines a group of angry working class cultural conservatives marching on the wealthy suburbs of Mission Hills, denouncing the cultural elitism of the latter, and shouting "We are here to lower your taxes!" Articulating this sort of perversity is where the book really does its best work.

At the same time, Frank does not really give a good account of why this populist perversity arose. As a theorist of ideology, I tend to dislike arguments based on false consciousness. My sense is that the more you know about people's values and their circumstances, the less you will jump to the conclusion that they are necessarily acting against their interests. Rather, they may define their interests differently than you do. One of the things that gets jettisoned with so-called scientific Marxism is the notion that people have an objective interest which is the objective interest of their particular economic class. Life is much more complicated, and interests are made, assumed, and developed rather than simply superimposed on people.

That is not to say that there isn't a very good argument that conservative populism has led to government policies that harm working class people. It has, and Frank offers many examples in his book. But conservative populists are not necessarily dupes. Rather, as Dan Kahan has pointed out to me in conversation, people may believe that it is more important for them to have leaders that they trust and whose values they identify with than leaders who will benefit their economic interests. Indeed, if you think that much of what happens in the domestic economy is out of government's hands, or that government should stay out of it, you are naturally drawn to emphasize character and shared values as the key reason you vote for someone. Conversely, if you do think government has an necessary role in improving people's lives and responding to threats, and if you lack the time or inclination to study the issues in depth, you are likely to trust people whose values seem to be closest to your own as the people most likely to do the right thing.

That is why values matter so much in politics. (Here I am drawing on Dan Kahan's work on cultural formation of political attitudes) People use values as a proxy for knowledge about the causes of social problems and the effects of potential government policies. You might not know what the best solution is or what is causing the problem, but you'd rather trust someone who seems to be your kind of person with your kind of values to figure this out than someone who doesn't seem to share your values. If trust and confidence are the key reasons for supporting one kind of leader rather than another, values politics makes a good deal of sense.

What conservative populism has in common with its earlier radical versions is its resentment of social and economic class. At one point Frank suggests a reason why this resentment is so easily diverted to Hollywood rather than Wall Street, but does not develop it further. However, if I am right that people are looking for proxies that give them reliable information about who to trust and who not to trust, then the most important proxies are those that are most salient. Hollywood is simply much more salient than Wall Street. The culture industry is everywhere and, indeed, spends good money to make sure that it is everywhere. Business organization and the effects of good and bad regulation and deregulation, on the other hand, are far less salient to people's lives, even if their actual economic effects are far greater. The same goes for the mass media. Dan Rather is far more in people's faces than the board of directors of any Fortune 500 corporation. Put somewhat differently, the image of the fat cat and the malefactor of great wealth at the turn of the twentieth century has been drowned out by (and displaced by) the image of the pampered, self-absorbed actor or rock star, or the supercilious network reporter at the turn of the twentieth-first century.

The irony, of course, is that the people who produce mass culture are much more after profits than liberal indoctrination. Michael Moore may be a liberal propagandist, but Moore is an independent filmmaker who usually operates on a shoestring, rather than the chairman of the board of Viacom, or, for that matter, Rupert Murdoch. Things appear on television (including Fox) because people who run these businesses believe that these shows will draw audiences and thus draw advertising revenues. Large audiences, in turn, make money from advertisers, who in turn produce advertising campaigns for businesses. Frank points out that the right is losing the culture wars because a significant part of the Republican coalition-- big business-- is actually on the other side. Businesses are perfectly happy to coarsen public discourse if it will draw audiences, maintain eyeballs, make advertising effective, and thus increase profits.

If I am right that salience matters, rather than Frank's version of false consciousness, Democrats will have to win the trust and confidence of the public before the public will vote for their policies, no matter how much those policies help the average American. That may seem to be a tall order, but Democrats once had that trust and confidence for several generations, and there is no reason why they cannot have it once again.

Posted 10:38 AM by JB [link] (12) comments

Can Congress Regulate Free Medicine?

JB

Larry Solum takes my thought experiment about Raich v. Ashcroft to the next stage:

Of course, there is counter move that could and would be made by the medical cannabis community. Voluntary clinics that did not charge for the prescription would not be economic activity--as such activity is defined by the Ashcroft v. Raich petitioners. (Their definition as articulated by Barnett in oral argument is that for activity to be economic it must be part of a process that includes sale or barter of a good or service.) Hence, an as applied challenge could be brought to the application of the federal statute to the noneconomic activity by the volunteer physicians.

Well, yes and no. I'm not sure that you can raise an as-applied defense if the federal statute in question preempts California law. My hypo assumes that the federal statute regulates the medical profession with respect to this particular form of treatment. Once the California statute is preempted, it's completely preempted, even as to voluntary medical practice.

Why can the federal government reach voluntary (free) medical practice as well as for-profit? Well, you could easily argue that the banning of certain unethical practices by the medical profession (unethical as judged by Congress, that is) must reach both for profit and free medical practice, because doing so is "an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated." (Lopez). Congress might reasonably conclude that allowing doctors to circumvent a restriction on a dangerous or otherwise unethical practice of medicine by not charging for their practice would eventually undermine the ethical practice of for-profit medicine by lowering ethical standards generally. Imagine that doctors learn how to clone humans and do so for profit. The federal government bans all cloning whether for profit or done for free. It argues that cloning is unethical and allowing licensed physicians to engage in human cloning will undermine ethical standards with respect to for profit medicine. This is certainly not a crazy argument. In the same way, Congress might seek to regulate unethical practices by lawyers, even when they occur in pro bono litigation because these practices will undermine the for profit practice of law.

What makes Randy Barnett's argument work in the first place is that the state of California has said that it is a proper practice of medicine for doctors to prescribe medical marijuana to seriously ill patients. But if the federal government has different ethical and professional standards for the practice of medicine, and imposes them nationwide, then California's rule is *totally* preempted and so Randy's argument won't fly. You won't be able to do a carve out for voluntary (but licensed) medical practice because that particular practice is no longer authorized by state law-- that law is preempted.

Posted 1:31 AM by JB [link] (14) comments

A Thought Experiment about Raich v. Ashcroft

JB

As I understand Randy Barnett's argument in Raich, it is that the cultivation and possession of marijuana “solely for the personal medical use of seriously ill individuals, as recommended by their physician and authorized by State law” is beyond the reach of the federal commerce power. For the purposes of this posting, I will accept that Randy's argument is correct, and that you can carve out classes like this for as-applied challenges to Congress's Commerce Clause power. I note that much of the force of the argument seems to turn on the fact that the carve-out of the class is not wholly arbitrary, but rather tracks California state law.

What then, of a statute that regulates the ability of doctors to prescribe Schedule I substances for their patients for medical treatment? Why wouldn't such a law, making it a crime for doctors to prescribe marijuana, be well within Congress's commerce powers? After all, the practice of medicine is a business, and therefore is economic activity. And there is no problem cumulating effects if the activity is economic in nature.

If Congress may make it a crime for doctors to prescribe marijuana for medical use, then it would, in effect, preempt California's law allowing cultivation of marijuana for personal use when recommended by a licensed physician, because no doctor could legally recommend the use of marijuana for a patient.

If that is so, then Raich's as-applied challenge to the commerce power would fall apart.

Thus, if Congress wishes to prevent the use of medical marijuana, it need only pass a law prohibiting doctors from prescribing marijuana. If that is so, the question becomes whether it is a good idea to require Congress to pass a new law each time a very smart lawyer comes up with a way to pose an as-applied challenge to a broad Congressional statute.

On this question, I am agnostic. On the one hand, it does make Congress go through lots of hoops to regulate what is already within its regulatory power. On the other hand, perhaps there is some legal process reason-- like a clear statement rule-- to require Congress to respond to each challenge to its authority, because in the long run, this will lead to less regulation. Of course, the effect of such a clear statement rule might be more federal statutes, regulating more features of everyday life, not fewer. Whether this is a good result I leave up to you to decide.

Posted 1:02 PM by JB [link] (8) comments