Balkinization  

Monday, April 24, 2006

West Wing and the Constitution

Sandy Levinson

Fans of "West Wing" got an interesting lesson last night in one of the manifest inadequacies--some of us would say "stupidities" or "dysfunctionalities"--of the U.S. Constitution. For those of you who missed it, President Bartlett has put thousands of American troops between Russian and Chinese armies somewhere in central Asia. The new President-elect, Matt Santos, is (rightly) dubious of the President's policy (though he, like Bartlett, is a Democrat). It is made absolutely clear to Santos that he is "merely" the President elect and, therefore, has no authority whatsoever until inauguration day, which, of course, occurs a full 10 weeks after the election. It is inaccurate to view Bartlett as a "repudiated" President (unlike, say, Hoover in 1932, Carter in 1980 or Bush in 1992), but the West Wing, not for the first time, did their viewers an important service in pointing to the way that we are disserved by a system that allows a true lame-duck to make very important decisions that can well prove albatrosses around their successors necks. Recall that George H. W. Bush placed American troops in Somalia in December 1992, much to the detriment of the Clinton presidency. No contemporary constitutional designer, I am confident, would advise his/her client to adopt anything close to the American system and its long hiatus between election (and, therefore, the granting of democratic legitimacy) and inauguration (the granting of legal authority).

It used to be worse, of course. Until 1933 (and the 20th Amendment), inauguration day was March 4. This meant that there was, as a practical matter, no genuine government of the United States between November 1932-March 1933 in terms of someone willing and able to make important decisions with regard to combatting the Great Depression. The 20th Amendment did indeed make things better, but it should be obvious that January 20, both metaphorically and literally, is closer to March 4 than to November 8.

It would obviously be a good idea to become like almost all other serious countries in the world and devise an election-inauguration process that limited the length of the hiatus. (In the UK, for example, the newly elected Prime Minister moves into 10 Downing Street literally the day after designation by the Queen as such.) There are, of course, limits in what the US can do because of another terrible feature of our Constitution, the Electoral College and the felt need to take time to hold a meeting of the various electors in December and then, should there be a deadlock, wait until January to select the President.

I am happy to say that the Oxford University Press will be publishing a book of mine in October, Our Undemocratic Constitution: Where the Constitution Goes Wrong (And How We the People Can Correct It) that discusses the "hiatus problem," the electoral college, and much else. In any event, we all owe thanks to a truly marvelous television program for, once again, bringing important constitutional issues to the public's attention in an especially vivid way.

Friday, April 21, 2006

What is Access to Knowledge?

JB

The Yale Information Society Project Access to Knowledge Conference kicked off today. (You can learn more about the conference panels here and here.) I gave a speech on the first panel about framing access to knowledge, using insights from a year-long seminar that Yochai Benkler and I have been teaching on the issues.

Here is the prepared text of my remarks:

On behalf of the Information Society Project I want to express how happy we are to have you all here, and our pleasure at being a part of this wonderful movement that you, in the audience, have helped create. For the last year Yochai Benker and I have been running a research seminar at Yale with some very talented students on the theory and practice of access to knowledge, trying to understand the larger theoretical commitments behind the access to knowledge movement. This conference is the culmination of a long process of thought, study and reflection, which is part of the larger access to knowledge project here at the ISP.

We hope that we can contribute in our own small way to what is already a rich and exciting conversation about the goals of access to knowledge. We are thrilled to be able to host what is truly an international event in an ongoing social movement that is unfolding before our very eyes.

Today I want to make three points about the theory of access to knowledge.

First, Access to Knowledge is a demand of justice.

Second, Access to Knowledge is both an issue of economic development and an issue of individual participation and human liberty.

Third, Access to Knowledge is about intellectual property, but it is also about far more than that.

Access to Knowledge is a demand of Justice

Access to Knowledge is a set of principles that emerge from a loose collection of different social movements. These social movements, in turn, are responding to changes in economy and society produced by new information technologies.

Information and knowledge are embedded in goods like drugs that have value, and in social structures like education and science that produce value. Moreover, information, like capital, is not just a thing in itself but it's also a set of relationships between persons and groups. Some control it, others don't and law helps enforce that division of power and control.

As the global economy develops, control over knowledge and information increasingly determines global wealth and power. Because not all countries participate in the global economy equally, not all of their citizens enjoy its benefits equally. Different societies prepare their members differently to participate in the information economy, and different countries have competitive advantages in producing information and controlling its distribution.

Access to knowledge can be a confusing term because it actually refers to four different things. Here I borrow Yochai Benkler's typology:

  • 1. Human knowledge-- education, know-how, and the creation of human capital through learning new skills.

  • 2. Information-- like news, medical information, data, and weather reports.

  • 3. Knowledge-embedded goods (KEG's)-- goods where the inputs to production involve significant amounts of scientific and technical knowledge, often but not exclusively protected by intellectual property rights. Some key examples are drugs, electronic hardware, and computer software, but in contemporary economic life, information and intellectual property provide an increasingly important share of almost all valuable goods.

  • 4. Tools for the production of KEG's-- examples include scientific and research tools, materials and compounds for experimentation, computer programs and computer hardware.

The goal of access to knowledge is to improve access to all four of these components of the knowledge economy:

  • 1. Access to human knowledge
  • 2. Access to information
  • 3. Access to KEG's
  • 4. Access to tools for producing KEG's


Access to knowledge is a question of distributional justice, both within a society, say rich and poor, men and women, and across different societies, say countries in the North and the South. Given the long term trend in the world economy toward increasing the share of wealth going to these four components of the knowledge economy, what does justice require?

I think we can make two claims:

First, if you can produce the same or greater amounts of these four components and distribute them more widely and equitably both within countries and across national borders, justice demands this.

Second, if you can spur additional innovation and information production in areas that existing market structures currently do not serve-- e.g., drugs for diseases in the third world, educational materials for persons in the poorest countries-- justice also demands this.

Let me put it another way: Access to knowledge means that the right policies for information and knowledge production can increase both the total production of information and knowledge goods, and can distribute them in a more equitable fashion. The goal is first, promoting economic efficiency and development, and second, widespread distribution of those knowledge and informational goods necessary to human flourishing in our particular historical moment– the global networked information economy.

I repeat: It's not just a trade off between equity and efficiency. We are not simply fighting about how to divide up a pie. Access to knowledge is about making a larger pie and distributing it more fairly. Or, at the risk of extending this pie metaphor well beyond its appropriate scope, access to knowledge means giving everyone the skills to make their own pies and share them widely with others.

This brings me to my next point.

Access to Knowledge is both an issue of economic development and an issue of individual participation and human liberty.

From the arguments I've offered so far, which, I should mention, owe a considerable debt to the work of my friend and colleague Yochai Benkler, it sounds as if Access to Knowledge is just about economics and development. It isn't. I put it this way because some of the strongest arguments against A2K have been economic arguments that the current system is better for economic development and efficiency, and we have to sacrifice equality to promote development.

What we've been trying to show in our seminar here at Yale is that this is just plain wrong. The best information policies, the best knowledge policies, the best development policies actually lower barriers to access to knowledge, they produce more information goods and they distribute them more widely. Our seminar has been trying to show how the best economic arguments are on our side. The crazy thing about the push toward global harmonization and IP maximalism is that it doesn't make economic sense. It benefits particular stakeholders, to be sure, and they often claim that making them wealthy makes everyone else better off. But it turns out it's not true. A more balanced set of IP policies actually produces greater wealth and distributes it more widely and fairly.

But access to knowledge is about more than increasing GDP or promoting rapid development. For example, we might promote human development through producing lots of information goods for people and distributing them widely. On the other hand, we might promote human development by promoting decentralized access to information tools and by encouraging participation in the production of information goods by large numbers of people.

Access to knowledge is about the second strategy– participation-- as much as the first. Or in economic terms, its about whether information production will be primarily centralized and proprietary or whether large parts of it should be decentralized and participatory. What we've been trying to show in our seminar here at Yale is that a vast range of information policies, ranging from free and open source software to universal service policies in telecom to networks of farmers sharing agricultural information aren't just about stuffing people's Christmas stockings with more information goods, but rather giving individual people tools to think with, build with, form communities with, and then watch these communities take off, enabling people to make their own knowledge and information goods either individually or through peer production models.

You see, there is always more than one way to promote human flourishing using knowledge and information, and therefore you should usually adopt more than one strategy. You can make drugs cheaper or you can give people information about their health. Why not do both? You can reduce the costs of information embedded goods, or you can free up access to knowledge tools, increase literacy rates, and let people build things together and share their efforts. Again, why not do both?

Is access to knowlege a human rights issue? Sure it is. Health, literacy, education, freedom of speech and participation in the knowledge economy all involve questions of human flourishing and all involve questions of human rights. So there is considerable overlap between the focus on development and the focus on human rights. But relying primarily on the rhetoric of human rights brings its own risks. I'll mention only two.

First, people have started to argue that intellectual property is a universal human right so that people who resist increasing IP protections and making them equally stringent around the world are actually violating universal human rights.

Second, much of good information policy requires governments to invest in information production-- scientific research, weather reports, agricultural information, health information, public libraries, educational materials-- and also to promote telecommunications infrastructures– cheap cell phones, universal access, telecenters and so on.

A lot of good information policy comes from freeing up or encouraging the private sector to innovate, for example through government procurement policies, tax breaks, and IP reforms. Some of these policies and reforms aren't easy to squeeze into the rhetoric of human rights discourse, although, believe me, people have tried. (Is there a human right demanding that government spend more money on scientific research or that it provide network neturality policies in telecommunications? Maybe so, but human rights discourse might not be the best way to express one's goals in these particular situations.) That is why we have committed ourselves to talking about access to knowledge in multiple ways, as an issue of development, an issue of justice and an issue of human freedom and participation. It's a big topic, and there is no one single rhetoric that captures all of it.

That brings me to my third and final point.

Access to Knowledge is about Intellectual Property, but about far more than that.

Much of the focus of access to knowledge, and much of what we are going to be talking about here, has been on intellectual property. There are good reasons for this. As you'll see in our discussions here, the international IP and trade regime has increasingly adopted policies that prevent the efficient and equitable flow of knowledge, information, and knowledge goods. However, if our goal is the promotion of human flourishing, economic development, and human freedom, Access to Knowledge must look beyond international trade and IP policy.

First, no matter how restrictive IP laws may be, they may not be the major cause of human suffering and lack of access to knowledge around the world. Providing basic telecom access and rudimentary health care may be far more important in some countries. Using IP to deny people cultural freedom is bad enough, but broader censorship policies may be even worse.

Second, we should always distinguish between law in the books and law in action. Sometimes the text of legal rules and treaties don't tell you how these laws are actually being enforced. Countries sign lots of treaties– like human rights treaties– that they don't actually enforce or only enforce selectively. Conversely, some treaties give countries opportunities to protect freedom– for example, exceptions and limitations provisions-- that they never use.

Third, in some cases IP enforcement isn't the major stumbling block to economic development and human flourishing. For example, suppose a country wants to promote a local pharmaceutical industry. Its IP policies are important, but more important is their interaction with other policies like the presence or absence of research and development subsidies and tax breaks. Research and Development subsidies may be much more important than IP; and price controls may do as much harm as bad IP policies. A functioning public sphere, a free press, and government transparency– all goals of access to knowledge, by the way-- may be necessary to reduce government corruption and keep government policies from being skewed toward the short term interests of powerful stakeholders.

Let me generalize this point: Universal telecom access and increased cell phone access, giving out free computers, providing public libraries and local telecenters, sharing agricultural information among farmers and educating women about their health and contraceptive options may be some of the most important things that a country can do to promote access to knowledge for a large proportion of its population. My point is that governments promote access to knowledge in many different ways besides IP laws-- through regulation and deregulation, through government procurement policies that encourage private actors to produce knowledge and information goods, and through the government's own provisioning of information, knowledge and education.

That's why this conference contains panels on a wide variety of topics that go beyond current fights over the international IP regime-- panels about telecommunications, educational policy, and health policy. All of these policies serve the larger goals of A2K– the goals of justice, of development, and of participation in the forms and practices of knowledge by everyone on the planet.

Wednesday, April 19, 2006

Rank(ing) thoughts

Mark Graber

As is the case with many academics, I have too morbid an interest in all the various rankings of departments, law schools, and universities that come out. Still, I wonder whether, given the deemphasis on teaching, whether various reputational indexes or citation counts may fool students. After all, should the presence of Professor Bigshot on the faculty be much of a reason to attend Hotshot U. if Professor Bigshot rarely, if ever teaches, and rarely, if ever advises. Moreover, as faculties, law school faculties in particular, begin to have more turnover than most teams in the NFL (or any team run by Isaiah Thomas!) is the presence of Professor Bigshot much an inducement when the odds are good that he/she will be visiting another university during your first year, have a course reduction in your second year, and accept an outside offer during your third year. Of course, the absence of Professor Bigshot may be compensated for by the presence of Professor Famous who visits during your first year and Professor Genius who accepts your university's outside offer during your third year. Still, I suspect free agency may have undesirable teaching influences (Bigshot may share your interests, Genius does not, and both may lack vital experience teaching in your school).

With this in mind, would an interesting means for ranking schools be first, the average citation count for the professors in each course taught at a school in a given year (note the reward for a well-known professor who teaches a full course load) or the average citation count for those professors who have taught at least close to a full course load for at least four of the past five years. Be curious to see whether the standard ratings would be substantially changed if rankings were computed on the basis of who actually teaches courses rather than whose names are on the masthead

Tuesday, April 18, 2006

Administrative Correctness?

Mark Graber

Lost in the debate over so-called "political correctness" is the new trend toward administrative correctness that is sweeping the university. Political correctness, in many forms, is actually intellectually interesting. While at the end of the day, I concluded that the standard restrictions on certain forms of invective would, particularly as applied, be likely to be inconsistent with the university's mission, I think their leading proponents fostered important debates on the meaning of free speech, equality, and intellectual life. The true threats to intellectual life on campus are a new generation of academic administrators, who seem to have little interest in the value of debate, some interest in pacifying constituents, and a great deal of interest in raising money. One example is the obsession with grant-funded research, even in disciplines (English) and fields (political theory) where grants are hard to come by. I stunned a prominent figure at the University of Maryland when I indicated that reputation in law did not correspond to dollars raised in funding. he literally could not conceive of any other objective grounds for merit.

Consider also the increasing use of adjuncts that, at many campuses, does not correspond to decreasing size of faculty (the main currency for rewarding faculty has increasingly become getting courses off). And too often, these adjuncts (for very good reasons) have little commitment to the institution. They do not advise undergraduates, they often cannot present the most recent scholarship because all they know is what their adviser has taught them or because, not being active participants in the scholarly universe, they are not fully aware of what is going on.

For those of you in college or law school being asked to help raise money, find out how much of that money will be put to having professors in your classes. For those of you making college or law school decisions in the near future, do not just look at who is on the faculty roster. Look who actually teaches the courses. Visit the school. See who is actually in their office. There are a great many first rate academics who enjoy teaching and advising students. There are also a great many who are largely names on doors.

Access to Knowledge

JB

The Information Society Project at Yale Law School will hold an international conference on Access to Knowledge from April 21st-23rd at Yale Law School.

This is a landmark A2K event that will bring together leading thinkers and activists on access to knowledge policy from North and South to talk about the theory and practice of the Access to Knowledge movement and to share their research and policy solutions. This is one of the first conferences to synthesize the many different facets of the theory of access to knowledge, drawing together issues involving access to medicines, intellectual property, cultural freedom, software innovation and telecommunications policy. The goal of the A2K Conference is to build a larger intellectual framework that will promote access to knowledge both as a human rights issue and as a method of sustainable development.


Monday, April 17, 2006

Beyond the Segregation/Integration Paradigm

Guest Blogger

Heather Gerken

At first glance, Saturday's New York Time article on Nebraska's decision to divide Omaha's public school into "three racially identifiable" districts looks like a familiar and ugly story. The city's school district absorbed a number of predominantly white schools into the system, with the aim to distribute public school funding more equitably among whites and racial minorities. The mostly white suburban districts "rebelled," says the New York Times, and the legislature "drew up a measure to blunt the district's expansion." The legislature ultimately decided to divide the school system into three racially identifiable districts – one predominantly white, one predominantly black, and one predominantly Latino. Thirty of the 31 lawmakers who voted the districting plan into place were "conservative lawmakers from affluent white suburbs and ranching counties with a visceral dislike of the Omaha school bureaucrats."

What made the story unusual is that the 31st lawmaker to support the plan – and its author – was Ernie Chambers, the only African-American in Nebraska's legislature and a man famous for his devotion to the traditional causes of the civil rights movement. He proposed the plan because he wanted to "allow black educators to control schools in black neighborhoods." The basic question behind the story is whether Senator Chambers knows what he's doing.

Rather than attempting to answer that question – an assessment that would require a good deal more knowledge than I possess about local Omaha politics and sound educational policies more generally — I want to underscore how impoverished a vocabulary we have for discussing it. Such discussions generally turn on the terms "segregation" and "integration. The Times headline, for instance, is "Law to Segregate Omaha Schools Divides Nebraska" – and who wants to be on the wrong side of that fight? And even Jack's typically thoughtful post on the subject could be enriched by moving beyond those terms.

Some critical distinctions get lost when we cast this issue as a debate about integration v. segregation. The first is that these districts may be different from the racial enclaves of Jim Crow. The text of the story suggests that they are predominantly white and black and Latino, but not entirely segregated. We tend to assume that integration ideally means a statistical mirror – if blacks are 25% of the population, they should be 25% of the district – and often term institutions "integrated" even when they contain only a token number of minorities. Yet when racial minorities constitute statistical majorities in a district, we often call those districts as "segregated" and condemn them as such (forget the Times' headline – just think about the Supreme Court's Shaw jurisprudence). Even – or perhaps especially – in a world where significant racial disparities persist, we ought to think carefully before we affix the dreaded label "segregation" to school districts where racial minorities enjoy enough votes to control their own destinies.

Jack's post says that our public education system should not be thought of as a system of "racial spoils." In doing so, he puts his finger on precisely what seems bothersome about Nebraska's plan. And yet one wonders what, precisely, makes this a "racial spoils" system. Jack is not worried that racial minorities rather than whites will exercise political control over two of the three districts (although anyone who has read the Supreme Court's decision in Croson, where it insinuated that an affirmative action plan enacted by a majority-black city council was little more than a system of racial spoils, knows that such a worry can animate similar language). Jack is plainly concerned about the fact that these districts were intentionally designed to give racial minorities control over some subpart of the school system, something that seems inconsistent with our broader normative commitment regarding the role race ought to play in public education.

And yet in at least one part of our democratic system – voting rights – we often deliberately draw districts to ensure that racial minorities have a chance to control outcomes in some part of the system. It may be that the black legislator who proposed the Omaha plan was elected in just such a district. Jack himself notes the parallel, but he reminds us that the Supreme Court has allowed the deliberate creation of majority-minority districts for the sole purpose of creating integrated legislatures. And Jack – like the majority of the commentators quoted in the Times article – sees no possibility of integration here.

Here again, I think terminology can get in the way. If we imagine members of Omaha's black and Latino communities as being represented by the decisions made in their districts – by the successes and failures of a school system where they played a decisive role in shaping its policies – we might see integration, albeit of an unusual sort. If we took a bird's eye view of the entire Nebraska school system, we would see a kaleidoscope, with majority-white and majority-black and majority-Latino communities being "represented" by the school systems they created rather than the legislators they elected. Arguably, representation by institutions of this sort could constitute a richer vision of representation than one where a community elects a single person to speak on its behalf.

The point of this post, then, is not to disagree with Jack's analysis. He has intelligently canvassed the costs associated with Nebraska's plan, and his worries about potential dangers (like funding inequities or the danger that truly homogenous racial enclaves will develop in the long run) are especially well taken. The point is simply that we do not have a sufficiently capacious language, constitutional or otherwise, to describe the benefits that might be associated with Nebraska's plan. We need a language that moves beyond the segregation/integration paradigm, one that recognizes that minority-dominated institutions might be importantly different from homogenous minority enclaves. Without such a vocabulary, any discussion of Nebraska's plan seems likely to be one-sided at best.


Saturday, April 15, 2006

The Return of Separate But Equal

JB

The Nebraska Legislature has adopted a controversial new plan that would divide the state's largest school district (in Omaha) into three districts of about 15,000 students each: one predominantly white, one predominantly black, and one predominantly Latino. These three districts, along with several (mostly white) suburban school districts, would become part of a single "learning community," i.e., a federation of school districts that share a common tax base. The learning community would be governed by a board member from each member school district.

Originally, the Omaha school district had sought to use its powers to incorporate several of the mostly white suburban school districts. Although the district had no plans to engage in busing, parents in the suburban districts were afraid this might happen. They pressured the legislature to stop the Omaha school district's expansion. The legislature responded by creating a learning community that included 11 school districts, including the Omaha district. Later, at the urging of a black legislator, who sought black control of schools in black areas, the legislature divided the Omaha school district into three racially identified districts. The plan requires a study about how best to promote voluntary integration, and requires that school districts work together to achieve this end, but the bill does not require further integration beyond these aspirational goals.

Superficially, at least, there are things in Nebraska's new plan that advocates of black self-determination, like Clarence Thomas on the right and Derrick Bell on the left, might like. The new school districts all share a common revenue base. At the same time the predominantly black school district will likely be run almost exclusively by blacks. In like fashion, Latinos will control the Latino district and whites will control the white district. However, blacks and Latinos will have only one vote each in the larger "learning community" that would set policy for all the districts.

The NAACP's original push for racial integration was premised on the idea that "green follows white:" The NAACP assumed that whites would never fund separate black school districts as much as they did their own. Hence to ensure that black children received education of equal quality with those of white children it was necessary to integrate the schools. However, in this case the black school district shares the same revenue base as the white district; black families will control how money is spent within the district and black representatives will have some voice in the larger "learning community." So, at least in theory, it looks as if one of the major considerations against separate but equal has been eliminated.

It all sounds great in theory, but in practice the issue is a bit more complicated. What prevents the legislature from changing the deal later on, once the racially identified districts are created? For example, the legislature might put each district on its own financial bottom, so to speak. There aren't enough blacks and Latinos in the Nebraska legislature to stop that later modification. This two step process would essentially produce a group of richer white districts and a poor black and a poor Latino district similar to many other parts of the United States. That might make black and Latino parents and children worse off then when they started. The Nebraska plan makes sense only if black parents can be assured both that the amount of financing going to predominantly black schools will in fact be equal to that going to white suburban school districts and that it can't be changed in the future. Indeed, even under the existing plan the black school district only gets one vote in the "learning community" which means that it can't veto rules that, in practice, might favor white suburban school districts in funding and resources.

Putting aside these policy considerations for a moment, consider whether what Nebraska has done is constitutional. For ease of analysis, let's start with the assumption that the Omaha schools and the suburban schools have reached unitary status-- that is, that they no longer have any legal obligation to remedy the effects of past racial discrimination. The new bill changes the status quo and seems to have both a segregative purpose and a segregative effect. In earlier desegregation cases the state was required to remedy the effects of previous segregative purpose; the Court used various presumptions to put the burden on the state to remedy segregative effects of its policies. When school boards failed to adopt policies that reduced segregation, the argument was that they failed in their duty, and sometimes the school boards lost and sometimes they won.

In this case, however, the school board's policy begins with a deliberately segregative purpose (and effect), even if the purpose can be articulated in terms of allowing minority communities govern their "own" schools. The idea that a set of unitary school systems could be deliberately refashioned and lines deliberately redrawn to create racially identified school districts and racially identified schools seems altogether perverse given the original goals of Brown v. Board of Education. It seems to fly directly in the face of a host of precedents that have never been overruled, including Green, Swann, and Keyes. Even Justice Thomas, concurring in Missouri v. Jenkins, argued that racially identifiable schools were permissible only if they were the result of private choices rather than government policies. Thomas did not claim that state policies which had a deliberate purpose of producing racial segregation were constitutional.

Senator Ernie Chambers, the State legislature's only black member argued that the law was not intended to segregate because Omaha's schools are already segregated due to the fact that housing patterns are de facto segregated, students must attend neighborhood schools, and there is no plan to start busing students again. But this misses the point that the purpose and effect of the law is precisely to carve out black and Latino neighborhoods and place them in separate school districts. How the school district lines are drawn affects the future choices that people will make about where to live above and beyond any effects produced by the current demographics of neighborhoods. The demographics of neighborhoods within a larger multiracial Omaha school district can shift over time, particularly since the district as a whole contains many different types of students and parents of different races have a say in its governance and share equally in its future. By contrast, carving out a "black" school district that maps existing black neighborhoods tends to fix its character as "black" and shapes incentives to move in or out of these neighborhoods. By drawing school district lines to match black neighborhoods, Chambers and his allies in the Nebraska Legislature may have exacerbated the mutually reinforcing effects of school segregation and residential segregation.

Many people have criticized the Nebraska plan as racist. I don't think that's entirely fair. Some whites probably voted for it because they thought it would keep their children from attending school with blacks and Latinos, while some blacks and Latinos may have supported it because they thought it would give them control over their "own" schools; some whites may have supported it for the same reason. But the more important issue, it seems to me, is whether the public school system, or parts of it, should be treated as "belonging" to one race. The public school system should be the common property of all; deliberately designing as a racial spoils system is not consistent with this goal. Justice Thomas has argued that black communities which are largely segregated because of housing patterns (and what he terms "private choices") should have local control like everyone else; but Thomas in particular has denounced the idea that the state should divide up public services or public entitlements by race and award them in a spoils system. That is why he has been so bitterly opposed to affirmative action policies.

In fact, it's interesting to compare Nebraska's legislation with affirmative action policies like the ones the Supreme Court has upheld in Grutter v. Bollinger. The purpose of those policies was integrative-- to ensure a "critical mass" of minorities in what would otherwise have been a largely white law school. The goal of Michigan's affirmative action policy was not to create separate black law schools and Latino law schools within the University of Michigan, and the Court would not have deferred to the law school if it has announced that this was its purpose. Similarly, the Court has upheld a limited use of race in drawing voting district lines not simply because it allows minority communities to be represented by minority representatives, because it produces minority representation in larger integrated governing bodies.

As I have said, I don't think we can reject what Nebraska has done as simple racism. Nebraska's law should be applauded if it in fact secures equal funding for black and white school children and gives black parents real voice in the education of their children, the sort of voice that many white parents have long had. But before we can embrace Nebraska's plan to create special black and Latino districts, we first have to decide whether to give up on the integrative ideal behind Brown v. Board of Education-- the idea that the public schools belong to everyone. I don't think we've given up on it quite yet, nor should we.


Friday, April 14, 2006

Will Bush Pardon Rumsfeld?

JB

President Bush quickly rose to Donald Rumsfeld's defense after yet another retired general called for his resignation. Frankly, the really interesting question is not whether Rumsfeld will eventually resign but whether President Bush, as one of his last acts in office, will pardon him for any crimes he has or may have committed while serving as Secretary of Defense.

Recent revelations seem to suggest that Rumsfeld was heavily involved in supervising the interrogation of al-Qaeda detainees, and he may have approved of or permitted interrogation techniques that are illegal under U.S. law as well as international law.

Caspar Weinberger, who served as Defense Secretary for President Reagan, was facing trial on felony charges that he conspired to violate federal law as part of the Iran-Contra scandal. President Bush's father, President George H.W. Bush, pardoned Weinberger and several other Iran-Contra figures as one of his last official acts in office. The President's father, of course, was Vice-President in the Reagan Administration. By pardoning Weinberger and the other Iran-Contra conspirators, he avoided a public trial and ensured that criminal prosecutions and investigations into the Iran-Contra affair would proceed no further.

This President Bush is famous for refusing to do what his father did. However, in this case, I think he might be tempted to make an exception.


Wednesday, April 12, 2006

The basic structure of constitutional interpretation and the limits of interpretive theory

JB

I believe that it's helpful to break the topic of constitutional interpretation into four different questions: fidelity, interpretation, construction, and constraint.

The question of fidelity asks what do you have to be faithful to to be faithful to the constitution? (My view is you have to be faithful to original meaning and underlying principles)

The question of interpretation asks what sources may you or should you look to to (a) figure out what the original meaning of the text and the underlying principles are and (b) flesh out how to apply the Constitution in practice? (My view is that there are a wide range of sources you can look to, including history and traditions leading up to adoption, original expected application, previous precedents, past interpretations and traditions of practice. There are also a number of textual rules you can employ).

The question of construction asks what kinds of doctrinal rules (if you are a judge) or laws or institutions (if you are the political branches) may you or should you create to implement the Constitution and constitutional values? (This is a far more complicated subject than I can do justice to here; I will only note that doctrinal construction and elaboration, over time, often gets out of sync with the requirements of fidelity, and when it does, judges should change doctrine. The basic idea is that doctrine implements text and principle; it serves the requirements of fidelity but does not and should not displace them.).

Finally, the question of constraint asks what features of the system keep judges (or members of the political branches) from imposing arbitrary or extreme interpretations or constructions of the Constitution? Alternatively, what features of the system keep judicial interpretations and constructions (or intepretations and constructions by members of the political branches) within the mainstream of constitutional thought and practice? (Note that these two formulations are somewhat different. The first asks what avoids arbitrariness, the second asks what keeps interpretations and constructions within a bounded range whose center is roughly correlated with mainstream opinion).

My central point is that the issue of what fidelity requires is not the same thing as the question of how the system produces constraint. That is to say, it's possible (in fact it is likely) that the requirements of fidelity permit people to arrive at a wide range of different answers to constitutional questions over time, and that the work of constraining interpretation and construction is achieved by other features of the system. It is often assumed that what constrains judges are a set of rules of interpretation and construction, that, if followed, will produce correct answers that will also constrain judges, or, less ambitiously, keep judges from making arbitrary decisions (and poor decisions) or keep them from moving too far out of the mainstream of constitutional thought.

My view, by contrast, is that theories of constitutional interpretation, even the best theories, offer only part of the constraints necessary for the practice of judicial review, particularly when constitutional issues become most strongly contested. Rather, much of the work of constraint is produced by structural and institutional features of the constitutional system. These features include the following:

(1) All courts must offer legal arguments using generally recognized forms of legal argument. (This is far broader than the requirement that they adhere to a single correct theory of interpretation)
(2) Judges have professional norms that bind them to rule of law values and respect for democratic institutions. Judicial socialization and fidelity to judical roles are instilled not only in the general legal culture but particularly in legal education.
(3) Lower courts must follow the precedents of higher courts until those precedents are changed. Although precedential argument is more flexible than most laypersons think, this requirement instills some degree of constraint on lower courts.
(4) The U.S. Supreme Court is a multimember body whose direction in contested cases is driven by the need to form coalitions that include moderate or swing Justices. As a result, the Court's work tends to hew to the views of these moderate or swing Justices rather than the views of the most extreme members of the winning coalition.
(5) The appointments process keeps the Supreme Court (and to a lesser extent lower federal court judges) roughly in line with the views of the national political coalition, causing the Supreme Court, over time, to moderate its views and keep them roughly in line with the needs of the national political coalition.

These institutional features do not guarantee that judges will reach correct answers to difficult questions of constitutional law. They do not even guarantee that (some) judges will not occasionally overstep their appropriate role. However, they do keep the system of judicial review roughly functional and in sync with the political system.

A related, but different reason to doubt that theories of interpretation can do most of the work of constraint is not premised on the limits of what even the best interpretative theories can do. It is based on the realistic assumption that whatever the best theory is, judges and legal commentators often disagree heatedly about what that theory is and how it should work in practice. Moreover, there is no reason to expect that the work of a multimember body like the Supreme Court, whose decisions are the result of shifting coalitions, will conform to the views of any comprehensive theory of proper interpretation. Therefore, whatever the best interpretive theory is, it does not and cannot, in real life, do most of the work in constraining judicial practice.


Sunday, April 09, 2006

Would Jesus Stay Out of Politics?

JB

Gary Wills tries his very best to keep Jesus from being used by the two major political parties, arguing that "there is no such thing as a `Christian politics'", but at the end of the day he can't quite manage it. The tell-tale sign comes in this passage:
Those who want the state to engage in public worship, or even to have prayer in schools, are defying his injunction: "When you pray, be not like the pretenders, who prefer to pray in the synagogues and in the public square, in the sight of others. In truth I tell you, that is all the profit they will have. But you, when you pray, go into your inner chamber and, locking the door, pray there in hiding to your Father, and your Father who sees you in hiding will reward you" (Matthew 6:5-6). He shocked people by his repeated violation of the external holiness code of his time, emphasizing that his religion was an internal matter of the heart.

But doesn't Jesus say to care for the poor? Repeatedly and insistently, but what he says goes far beyond politics and is of a different order. He declares that only one test will determine who will come into his reign: whether one has treated the poor, the hungry, the homeless and the imprisoned as one would Jesus himself. "Whenever you did these things to the lowliest of my brothers, you were doing it to me" (Matthew 25:40). No government can propose that as its program. Theocracy itself never went so far, nor could it.

The state cannot indulge in self-sacrifice. If it is to treat the poor well, it must do so on grounds of justice, appealing to arguments that will convince people who are not followers of Jesus or of any other religion. The norms of justice will fall short of the demands of love that Jesus imposes. A Christian may adopt just political measures from his or her own motive of love, but that is not the argument that will define justice for state purposes.

To claim that the state's burden of justice, which falls short of the supreme test Jesus imposes, is actually what he wills — that would be to substitute some lesser and false religion for what Jesus brought from the Father. Of course, Christians who do not meet the lower standard of state justice to the poor will, a fortiori, fail to pass the higher test.


It's one thing to say that Jesus is beyond politics, but it's quite another to say that your religious views have no necessary connection to the pressing political issues of the day, many of which directly concern religion (like school prayer) or justice (like the nation's relationship to its poor and infirm). So Wills admits that school prayer is not what Jesus wanted, and support for the "lower standard" of "state justice" toward the poor is necessary but not sufficient to meet the higher standards of Christianity. It sure sounds like Jesus is taking sides to me.

Wills hopes that once people understand that Jesus was a rebel, not of this world, who continually distanced himself from all forms of secular power, they will stop trying to quote him for their favorite political causes. But this is a fool's errand. People want to quote Jesus precisely because we live in a world of profound moral and political disagreement; tying our arguments to widely acknowledged moral symbols or authorities is a good way to persuade others, or, at the very least, to shame them in front of others. And since the United States is, after all, a predominantly Christian country, and since one of the most powerful and successful political movements in the last generation has been Christian conservatives, it seems only natural that both liberals and conservatives would put their rhetoric in the hand of the man from Galilee.

The best way to make the argument that Wills wants to make is not to insist that Jesus is otherworldly and therefore beyond politics; it is, rather, to point out that not everyone in the United States is a Christian, and that, even among Christians, not everyone agrees about what Christianity requires. Therefore, in a world of pervasive moral disagreement and sectarian division, it is probably not a good idea to base public policy-- under which all Americans must live-- on a particular interpretation of Christian scriptures. People are free to argue about what Jesus meant and what religion demands in the public square, and government is free to recognize the important and powerful influence that religion plays in people's lives. But government officials should not make laws that are binding for all Americans on the basis of the religious views of a single religious group, even a dominant one. You don't need to have a particular view of what Jesus meant to believe this principle of politics. You only have to believe that there are good reasons, in a democracy with many different peoples and cultures, to keep the life of politics separate from any one religious orthodoxy.


Friday, April 07, 2006

Reductio Ad Dictatorem

JB

Attorney General Gonzales' admitted on Thursday that President Bush believed that he could legally spy on American citizens' phone calls and e-mails occurring solely within the United States. Previously the Administration had argued that it had authority to intercept and listen to conversations coming from overseas or going overseas without a warrant and without abiding by the Foreign Intelligence Surveillance Act (FISA). It asserted that the President had inherent authority to intercept intelligence coming from the nation's enemies and that the President was also authorized to do so by the September 18th, 2001 Authorization for the Use of Military Force (AUMF) against Al-Qaeda and other organizations which participated in the 9-11 attacks. Thus, the Administration argued, either the AUMF superseded FISA's requirements prohibiting warrantless surveillance of U.S. citizens, or else FISA was unconstitutional to the extent that it conflicted with the President's inherent powers as commander-in-chief.

Gonzales' latest admission-- that the President can also engage in purely domestic spying without a warrant-- might seem like a pretty significant grab of power, far beyond what the President said he could do before. But if you understand the Administration's theory of its own power, Gonzales' statement should not be at all surprising. The distinction between domestic communications and international communications is irrelevant to the theory. The latest revelation shows that the President's theory all along has been radical, unreasonable, and dangerous.

The President's view is that because he is fighting a war against terrorist organizations, any persons that he believes are allied with those organizations against whom country is fighting should be treated according to the rules that apply to war, and not to the rules that apply to the U.S. citizens generally (including but not limited to the protections of the Bill of Rights). According to the President, Congress has authorized intelligence gathering against enemy soldiers, which includes electronic surveillance, and even if Congress did not authorize it, as Commander-in-Chief he has authority to engage in such surveillance as a reasonable incident of prosecuting the war against Al-Qaeda.

Under this theory, the distinction between international calls and calls that are purely domestic is spurious. Our enemies are our enemies wherever they may be located, and their intelligence is enemy intelligence, whether or not they happen to be located overseas or within the United States. Hence if the President has power to wiretap conversations going overseas or coming from overseas, he has the same power to wiretap conversations within the United States.

The problem is not that Administration has suddenly changed its theory of its own power and is now making unreasonable assertions. Rather, the problem is that the President's argument about his own power has always been unreasonable; the latest admissions simply show us where this argument leads.

The central problem with the President's argument is that he (or his subordinates) get to decide whether or not a person is associated with a terrorist organization (or associated with an organization associated with a terrorist organization) without having to justify this decision to anyone else. As a result, he can withdraw an American citizen from the ordinary protections of the Bill of Rights (and statutory protections like those in FISA) merely by his own say so.

The President argues that the AUMF has authorized him to do this, but the AUMF does not say that the President can disregard laws like FISA specifically designed to protect U.S. citizens (and persons living within the U.S.) from executive overreach. FISA is a far more specific statutory scheme than the AUMF, and we should not assume without a far clearer statement that Congress meant to give the President a blank check to elmiminate laws that restrain executive overreaching and protect the civil liberites of Americans. Nor can the AUMF permit the President to violate constitutional guarantees of Due Process or other constitutional protections.

The President's other argument is that even if the AUMF does not give him this authority, he has inherent constitutional authority, and hence FISA is simply unconstitutional to the extent that it conflicts with the President's wishes. This means, in turn, that no law can keep the President from deciding to strip a U.S. citizen of ordinary Bill of Rights and statutory civil rights protections simply by asserting that the person is associated with Al Qaeda or with groups associated with Al Qaeda. To strip citizens of their rights in this fashion, the President does not have to prove his assertion to anyone. He need merely make it and then the person automatically loses his rights under the Constitution and statutory law.

Does this argument sound familiar? It should. It is the same argument that the President previously made to justify his ability to detain two U.S. citizens, Yasser Hamdi and Jose Padilla, in military prisons. Hamdi was captured in Afghanistan, but Padilla was detained in Chicago. Again, the President's argument doesn't distinguish between what he does overseas and what he does within the United States. As far as the President is concerned, if he thinks someone is associated with our enemies (or associated with someone associated with our enemies), he can, without offering any proof of this accusation to a disinterested third party, treat them as an enemy soldier. And, as we know, the laws of war permit enemy soldiers to be captured, detained, and even killed. So, at least in theory, if he could capture Padilla in Chicago, he could also shoot him there.

This theory, taken to its logical conclusions, gives the President the ability to treat anyone living in the United States, including particularly U.S. citizens, as wartime enemies without having to prove their disloyalty to anyone outside the executive branch. In so doing, it offers him what can only be called dictatorial powers-- that is, the power to suspend ordinary civil liberties protections on his say so. The limits on what the President may do under this theory are entirely political-- the question is whether the American people will stand for what the President has done if they discover what he has done in their name. But if the American people don't know what their executive is doing, they can hardly be in a position to object. And so the President has tried to keep secret exactly what he has done under the unreasonable and overreaching theory of Presidential power that his Administration has repeatedly asserted in its legal briefs and public statements.

Attorney General Gonzales' latest admission should hardly surprise us once we understand how much power the President actually thinks he has. Given that we will probably never know what the President has been doing in our name, we can only hope that he has not actually tried to exercise all the power he (wrongfully) thinks he possesses.

Our Honorable President

Brian Tamanaha

From the Washington Post:

President Bush authorized White House official I. Lewis "Scooter" Libby to disclose highly sensitive intelligence information to the news media in an attempt to discredit a CIA adviser whose views undermined the rationale for the invasion of Iraq, according to a federal prosecutor's account of Libby's testimony to a grand jury.

....

Bush has been a major critic of leaks of classified information, and his aides have repeatedly said they want to "get to the bottom" of who leaked the name of Wilson's wife, covert CIA operative Valerie Plame, to the media, which touched off Fitzgerald's investigation . But in the past 33 months the White House has never disclosed Bush's apparent involvement in the deliberate disclosure of information meant to undermine Wilson.

Three months before Fitzgerald began his probe in December 2003, Bush said at a news conference that "I've constantly expressed my displeasure with leaks, particularly leaks of classified information. . . . If there's a leak out of the administration, I want to know who it is. And if a person has violated law, the person will be taken care of."

....

No comment necessary.

Thursday, April 06, 2006

New York Times on the Schumer Bill

Marty Lederman

Today's lead editorial. Couldn't have said it better myself (although Lord knows I've certainly tried).

Editorial
Resolving the Wiretap Debate

Congress seems to lack the backbone to stop President Bush from authorizing wiretaps without court orders, and censuring him would probably not do much to make him follow the law. What could make a real difference would be a Supreme Court ruling that found his domestic surveillance program to be illegal.

A recently introduced bill would provide a good way to resolve the matter: putting the National Security Agency's secret spying program on a fast track to Supreme Court review.

Under the bill, which was introduced by Senator Charles Schumer, the New York Democrat, people who suspect that they are being subjected to warrantless electronic surveillance could challenge the spying in court. The bill would give people, like academics and journalists, who communicate regularly with people in places like Afghanistan, Iraq and Pakistan standing to sue if they are refraining from communicating out of fear that the government is illegally listening.

The challenges would begin in a special three-judge court, then go on the fast track to the Supreme Court. Suits against the program have already been filed, but this would put challenges on a firmer legal footing and let them get to the Supreme Court more quickly. The courts are in a better position than Congress to take on this issue. Under its current leadership, Congress has failed to investigate the domestic spying program seriously or to pass the legislation that is needed to rein it in.

Even if Congress did pass strong legislation, there is a good chance that President Bush, who has a sweeping — and unjustified — view of presidential power, would ignore it. If the Supreme Court told him to stop breaking the law, however, it would be difficult for him to defy its order.

It is hard to say for certain how the Supreme Court would rule, particularly since it has two new members. But it has had a good record recently of interceding when the Bush administration has gone too far in the war on terror, and it showed appropriate skepticism last week in oral arguments in another case in this area.

Getting the courts involved would elevate the domestic spying debate from the level at which it has languished in Congress — where defenders of the program have been quick to charge critics with being politically motivated and unpatriotic. A ruling from the Supreme Court would keep the focus where it should be, on the law and the serious civil liberties issues presented by Mr. Bush's domestic espionage.

ASIL Takes Stand Against Bush Administration (Sort of)

Brian Tamanaha

The American Society of International Law held its 100th Annual Meeting last week, with a remarkable list of speakers, including Supreme Court Justice Anthony Kennedy, former Justice Sandra Day O'Connor, and Secretary of State Condoleezza Rice. This celebration also produced a resolution that reads in its entirety:

The American Society of International Law, at its centennial annual meeting in Washington, D.C. on March 30, 2006, Resolves:

1. Resort to armed force is governed by the Charter of the United Nations and other international law (jus ad bellum).

2. Conduct of armed conflict and occupation is governed by the Geneva Conventions of August 12, 1949 and other international law (jus in bello).

3. Torture and cruel, inhuman, or degrading treatment of any person in the custody or control of a state are prohibited by international law from which no derogations are permitted.

4. Prolonged, secret, incommunicado detention of any person in the custody or control of a state is prohibited by international law.

5. Standards of international law regarding treatment of persons extend to all branches of national governments, to their agents, and to all combatant forces.

6. In some circumstances, commanders (both military and civilian) are personally responsible under international law for the acts of their subordinates.

7. All states should maintain security and liberty in a manner consistent with their international law obligations.

Read in isolation, this resolution is odd. It is a plain restatement of a collection of international rules and principles on the proper conduct of war which can be found in many international law textbooks. Of course this resolution was meant to be more than that. After all, in its entire history the ASIL has issued only a handful (literally) of resolutions, and this centennial meeting was a momentous occasion for the Association.

This resolution was issued against the backdrop of many controversial actions and assertions by the Bush Administration that are evidently contrary to international law, ranging from the propriety of the Iraq War (and the Bush doctrine of pre-emptive self-defense) to its treatment of prisoners.

I guess the members of the ASIL felt that the implications of the resolution are obvious, so there was no need to be explicit.

Wednesday, April 05, 2006

Slavery and the Framers

Mark Graber

Over the weekend, I had the privilege of attending a wonderful conference on DRED SCOTT put on by Sandy Levinson, Jack Balkin, and Paul Finkelman. One of the central issues raised at that conference is the extent to which the constitution was a pro-slavery or anti-slavery document. I've never liked either of the alternatives. Those who claim that the constitution committed Americans to the eventual abolition of slavery treat the antislavery utterances of various framers as central to the constitution (and ignore South Carolina and Georgia). Those who claim the constitution was a proslavery document treat antislavery utterances as exercises in hypocrisy and ignore evidence that most framers did hope slavery would eventually disappear (along with, to be fair, free persons of color).

The better explanation, in my opinion, is that abolition was a tertiary constitutional value. Most framers hoped that slavery would disappear, but that was not the primary purpose of any constitutional provision. Indeed, a few scattered framing comments aside, no one thought that the constitution was likely to have any immediate effect on slavery, one way or the other. They did write a constitution that could be interpreted as committed to antislavery values, but that interpretation was for the future to decide. In many ways, this is rather a nice finding, a finding that the framers did not commit us to their values. The constitution gives as a choice as to what our central values will be, and looking for answers in 1787 simply begs the question, as all they did was create a serious of institutions that they hoped would promote serious debate over slavery and other fundamental matters of justice.

Tuesday, April 04, 2006

Honest Proponents of the Death Penalty (and Judges): Please Read this Book

Brian Tamanaha

Despite the life and death stakes, one gets the impression that our society is suffering from "death penalty fatigue." Polls show that the majority of the public is for the death penalty, and proponents are sick and tired of the obstructionist efforts of opponents.

Set aside the debate between advocates and opponents of the death penalty and consider instead a different proposition: assuming our society approves of the death penalty, it should be fairly administered.

It's hard to imagine that many people, including supporters of the death penalty, would disagree with this proposition. The problem with the public debate is that proponents of the death penalty tend to dismiss questions about fairness as merely another tactic raised by opponents, rather than a legitimate issue that everyone should be concerned about.

Of course it's fair, proponents (and judges) assume, and they point to the various procedural protections and years of appeals as conclusive evidence. They admit that a few mistakes have been made in the past (as DNA evidence has shown), but rarely any more; and a few will even acknowledge that there are persistent racial disparities in the imposition of the death penalty, but deny that this makes the system unfair with respect to any particular individual. And, anyway, they are sick and tired of these issues, which have been raised many times and settled by courts in favor of the death penalty.

But every judge and every fair-minded proponent of the death penalty should read a recent book by Craig Haney, Death by Design (Oxford 2005), which is a detailed exploration based on 25 years of studies of the legal processes that lead to the imposition of the death penalty.

Did you know that many people who vote to impose the death penalty would have voted instead to impose life imprisonment without parole if they had been informed that this was an option (that "life" really means the prisoner won't be let go)?

Did you know that many jurors misunderstand the jury instructions (specifically, the meaning of "mitigation"), and erroneously believe at the sentencing stage that the law in some sense requires the imposition of the death penalty?

These and many other serious issues surrounding the fairness of the imposition of the death penalty are explored in Haney's book. Anyone who claims to be informed about the reality of the death penalty, and any judge who participates in its imposition, has no excuse for not reading it.

This book does not challenge those who are convinced that the death penalty is a legitimate form of punishment. It does, however, point out (with a great deal of convincing empirical support) specific ways in which current procedures surrounding the imposition of the death penalty operate unfairly, and it proposes concrete and simple reforms to ameliorate the problems identified.

This book is not against the death penalty--it just wants the death penalty to be imposed fairly. And who can disagree with that?

Discrimination against the Single

Mark Graber

Students at the University of Maryland Law School are selling tickets to their annual dance at $45 a person and $80 a couple. As a person whom I suspect was voted "Most Likely to be Dateless" from ages 15-25, I've often wondered about the couple discount at school dances, whether or not gay couples are included. At middle school and even high school dances, the incentive system seems perverse, given that I do not think school authorities should encourage pairing up at that age (it will happen regardless). But even in law school, I wonder whether this is a minor form of discriminationthat, while hardly worth a federal case, is worth a paragraph or so in Balkinization (and probably no more). After all, if we worry about stigmatic messages, I think 20sometimes without dates get lots of them and might benefit from one less. Curious what others think.

Friday, March 31, 2006

The Schumer NSA Bill and the Feingold Censure Resolution

Marty Lederman

There's a hearing in the Senate Judiciary Committee today on Senator Feingold's censure resolution, dealing with the NSA's extra-legal electronic surveillance program. As I explain below, I think the legal substance of the Feingold Resolution is unassailable, and the emergence of the censure resolution certainly plays a valuable role in keeping the issue in the public eye. Beyond that, I don't have enough information or political acumen to calculate whether the Feingold Resolution is a politically astute tactic -- but the one thing I'm fairly certain of is that, although it's well-intentioned, it will not lead to cessation of the NSA program, or to any serious and effective assertion of congressional war-powers prerogatives.

Accordingly, I return to the question I asked two months ago: What can Congress do about this conflict, anyway? I continue to think that what I wrote then was correct: The only way for Congress to prevail in this important war-powers stand-off is if the Supreme Court declares the President's conduct unlawful. Assuming that's correct, the only worthwhile thing for Congress to do is to pass a statute such as that proposed by David Barron, establishing statutory standing for parties reasonably chilled by the NSA program, and facilitating expedited Supreme Court review.

Enter Senator Schumer's new bill, S.2468, which would do just that. This is the bill that should be the top legislative priority. The bill is very simple:

Most importantly, it would create a statutory cause of action -- and thus statutory standing -- for certain persons with a "reasonable fear" that their communications are being intercepted, authorizing them to file an action asking a court to enjoin or declare unlawful the NSA program. A reasonable fear would be established by evidence that the plaintiff either has regular wire communications from the U.S. to Afghanistan, Iraq or Pakistan, in the course of paid employment involving research pertaining to terrorism or terrorist groups, or commercial transactions with a bank or financial institution in those countries.

The bill would provide that a three-judge court in the District of Columbia would hear such a suit, and would be required to handle the action with dispatch. Appeal from a final judgment would be directly to the Supreme Court, by way of a jurisdictional statement filed within 30 days after judgment.

As David Barron explains here, this bill would at the very least remove the very formidable statutory obstacles to suit that the current FISA may currently impose, and it might well have a significant effect, as well, on any Article III argument that the government would raise against the plaintiffs' standing. (See more from David here on why it's a good idea to tee up the question for the Court.)

If the bill were, by some miracle, to become law, it would lead to a judicial resolution of this landmark dispute -- the only sort of resolution that will affect the Administration's conduct -- and become a very important doctrinal marker affecting the allocation of powers between Congress and the President, alongside Youngstown, U.S. v. Nixon, the Pentagon papers case, Nixon v. Administrator, and Morrison v. Olson. It would also permit the Congress to consider amendments to FISA on a clean slate, with the current statutory and constitutional framework firmly established. (See, e.g., David Kris's proposal that I discuss here.)

More likely, the Schumer bill would be defeated on roughly a party-line vote. Or, it's possible the Schumer bill might pick up sufficient Republican support for passage -- it's very difficult to publicly articulate a compelling reason for opposing such legislation -- in which case presumably the President would veto it. This would, alas, mean that the bill would not become a law; but in that case, the Administration's constitutional hardball would be clearly seen for what it is -- so dedicated to opposing any checks on untrammeled Executive power either by statute or by the independent judiciary that the President is willing to cast his first veto to prevent any evaluation by the other branches of the lawfulness of his conduct. Such exposure would, I hope, be chastening, and a very important signal to the public of the profound constitutional distinctions between the President and his critics.

OK, so a few quick words on the Feingold Resolution: There has been a great deal of discussion and debate in the blogosphere, including by Jack on this blog, with respect to two questions: the merits of the Feingold resolution and the politics of it. Actually, there's not much serious debate about the merits. Thus, as I've discussed in several posts, there's very little question that the President has authorized systematic violations of FISA. And unless I missed something, no one in Congress has so much as suggested otherwise. (If anyone has examples of any legislator agreeing with the Administration's AUMF argument, please let me know.) Therefore, as far as I can tell, everything in the Feingold Resolution is true. The only question even under serious discussion on the Hill -- obliquely raised by Senator Specter and more unequivocally embraced by Senator Roberts and, more recently, by Senator Hatch -- has been whether FISA (or any other law regulating intelligence-gathering and interrogation) is unconstitutional to the extent it constrains the President's discretion on how best to gather intelligence against the enemy. And even on that question, there hardly seems to be majority support in either the Republican Senate caucus or with the public for the Commander-in-Chief prerogative to circumvent statutory limits.

So the real issue, among those debating the Feingold resolution, has reduced to the politics of the matter--i.e., whether pushing for and voting in favor of the Feingold motion would be good or bad for Democratic electoral prospects. See, for example, numerous posts on Unclaimed Territory, and Kevin Drum here. I don't have much of anything to add to what others have said in this respect: It doesn't seem like a political liability to me . . . but what do I know about such things -- particularly the politics in specific states and districts that will be competitive come November?

What no one appears to be writing about, however, is how the Feingold Resolution might affect the institutional interests of Congress and, more generally, the proper checks and balances of the federal government. Of course, it is a sad fact that few politicians in this town (save perhaps for Bobby Byrd) give even a moment's consideration to such factors. But to the extent one thinks such things matter at all, the recent controversies are a fairly big deal: The President is asserting the power to ignore duly enacted statutes whenever they impinge on his judgment about how to best defeat the enemy. Not only that, but he also asserts the right to do so in secret, without meaningful congressional oversight, and without any public knowledge that the laws are being superseded. Indeed, as the Feingold Resolution points out, the Administration has taken great pains over several years to convince the Congress and the public that it is abiding by FISA (just as it publicly insists -- with fingers crossed behind its back -- that it does not condone torture and complies with all international obligations and statutory restricitons on interrogation). And in response to the President's assertions of Executive power, not only is the Republican-controlled Congress not asserting any institutional prerogatives (which might be expected in an era in which partisan considerations greatly outweigh institutional loyalties), but even the Democrats are acting as if this is merely another in a series of policy disputes, rather than a more fundamental, structural challenge to the balance of powers.

Make no mistake, however: The Vice President and others in the Executive branch are very serious about the long-term strategy of Executive aggrandizement -- and, except in the rare cases in which they are rebuffed by the Supreme Court (e.g., Rasul), they are largely succeeding at changing the baseline of the debate--and with very little pushback, at that. And if Cheney, et al. can so thoroughly prevail in this basic separation-of-powers struggle when the President is at a 33% approval rating -- with the Executive ending up significantly more empowered after Congress has responded than it was before its malfeasance came to light -- one shudders to contemplate the executive-imperialist implications if this President ever approaches Clinton-like approval ratings.

OK, but even assuming I'm correct that this is a serious test of the separation of powers, what would that mean for the Feingold Resolution? Frankly, I don't know. Even if all of the Democratic Senators got on board, Senator Feingold must know that a vote on the resolution would fail -- and that would leave things worse than they are now, because it would be perceived by many (including perhaps even some courts) as an implicit congressional rejection of the idea that the NSA program is unlawful (or, at the very least, an implicit congressional signal that the legal question is a difficult one). And, of course, there won't be uniform Democratic support, which would make the results of a vote even more troubling.

Either way, the Resolution would do nothing to stop the NSA program (or bring it into conformity with the law), or to check the Executive power-grab, and would likely only exacerbate the problem. Indeed, even if, by some miracle, the Resolution were to win a majority in the Senate, it still wouldn't accomplish anything, because Cheney and company would respond: "Thanks very much, but we respectfully disagree and will continue business as usual."

Thus, I'm afraid that from the perspective of the future of the balance of constitutional powers, the Feingold Resolution could not improve things any, and might, if defeated, actually set Congress back even further. On the other hand, the Resolution does keep the issue in the public eye, and, frankly, at some point those who are concerned about the President's aggrandizement must do something to assert constitutional principles. In the absence of any other possible congressional options for dealing with the problem, it might well be worth the practical risks.

So, ultimately, I'm fairly agnostic on the tactical wisdom of the Feingold Resolution. But whether or not that Resolution remains viable, I think the efforts of those concerned about the Executive's power-grab -- e.g., Senators Feingold and Specter, among others -- would do well to put their energies to work in support of the Schumer bill. It's not an either/or choice.

Tuesday, March 28, 2006

The Hamdan Oral Argument

JB

I must begin by saying that, in my opinion, Neal Katyal gave an excellent performance. Paul Clement was very polished too, but he soon found himself buffeted about by some very skeptical Justices. The only person who came to his aid was Justice Scalia, who, if one is to believe his ex parte statements, had already prejudged the case before the oral argument even began.

The two most interesting features of the Hamdan oral argument were, first, that despite the Detainee Treatment Act of 2005, the Justices seemed to downplay the idea that they lacked jurisdiction to decide anything. Justice Souter in particular tried to throw cold water on the idea that Congress had suspended the writ of habeas corpus, even though that seems to be precisely what Congress had in mind in passing the Detainee Treatment Act. It sought to deny the extension of statutory habeas to noncitizens held outside the United States. What was quite unclear is whether the Justices were assuming that Eisentrager was no longer good law, or that to eliminate the statutory right of habeas the Court found in Rasul was tantamount to suspending the writ itself.

Second, aside from comments by Justice Scalia, the Justices who spoke seemed to assume that the President did indeed have to comply with Geneva Conventions. The reason, as I understand it, is that if that Congress has authorized military tribunals because such tribunals are consistent with the laws of war, then the Geneva Conventions are part of the laws of war, or, in the alternative, they are strong evidence of what the laws of war require. Hence, by the end of the oral argument it seemed that the Court was likely to hold (contrary to the D.C. Circuit decision) that the Geneva Conventions did matter, and it was irrelevant whether or not they were self-executing.

If the Geneva Conventions apply as part of the laws of war, and the September 18, 2001 Authorization for the Use of Military Force (AUMF) only permits the President to act according to the laws of war, then this places important limits what the President may do, unless the Court holds that the President has inherent authority that goes beyond the September 18, 2001 AUMF. My guess is that a majority of the Court will try to avoid saying anything about the latter question. Instead, the Justices seem to be doing what they did in Hamdi, namely, construing the scope of Congressional authorization as a limit on what the President can do without reaching the question of unilateral executive authority.

Put another way, in Hamdi (and apparently in this case as well) the Court construes an agreement between the President and Congress, and then defers to the agreement it has constructed. Since the Court interprets the AUMF as allowing the President to do what is consistent with the laws of war, that means that the military tribunals must be consistent with the laws of war and the President may only try individuals in such tribunals for violations of the laws of war.

One might well ask why a Republican-appointed Justice like Kennedy (or in Hamdi, Sandra Day O'Connor and William Rehnquist) would sign on so readily to significant limits on Presidential power. The answer is that maximizing presidential power in the War on Terror was not the reason why Reagan and Bush I chose their nominees. As a result these nominees have split on this issue, with only Thomas making the strongest arguments for presidential power in Hamdi (In this case, he may be joined by Scalia, although it is worth remembering that Scalia's opinion in Hamdi was not at all favorable to claims of executive power.). George W. Bush, by contrast, did hope to use his Supreme Court appointments to maximize executive power. Therefore we can expect that Justice Samuel Alito will support the Administration's position, as one suspects, would Chief Justice Roberts. Ironically, Roberts recused himself from this case precisely because shortly before being nominated, he had demonstrated his pro-executive views by joining the strongly pro-executive decision in the D.C. Circuit below.

The moral of the story is that when Justices are appointed by a previous President, they are often appointed for reasons that may have little to do with the constitutional issues that arise later on. This makes what they do in those later cases far less predictable.

Kris Testimony on NSA Surveillance and Possible Amendments to FISA

Marty Lederman

Several weeks ago, I blogged about a superlative statutory analysis of the NSA surveillance program written by David Kris, who had been the Associate Deputy Attorney General in charge of national security issues from 2000 to 2003. Kris is currently testifying before the Senate Judiciary Committee on the same issues. The first portion of his testimony recapitulates his analysis of the legality of the NSA program. Although I don't necessarily agree with all of the details of Kris’s testimony (in particular, certain aspects of his Article II analysis), his statutory analysis is indispensable. Kris concludes that "I do not believe the statutory law will bear the government's weight. It is very hard to read the AUMF as authorizing 'electronic surveillance' in light of the nearly simultaneous enactment of the Patriot Act. It is essentially impossible to read it as repealing FISA's exclusivity provision. And the AUMF suffers further in light of FISA's express wartime provisions. Even with the benefit of constitutional avoidance doctrine, I do not think that Congress can be said to have authorized the NSA surveillance."

Unfortunately, the Department of Justice did not have the benefit of Kris's analysis while he worked in the Department, because Kris was not "read into" the NSA program, despite the fact that he was one of the highest-ranking, most respected Department attorneys on matters relating to FISA and national security.

The second portion of Kris's testimony is perhaps equally important. It consists of a very elaborate proposal on how FISA might be amended to permit the Administration to intercept communications involving Al Qaeda agents in cases where such interceptions might now be foreclosed under the FISA standards, in a manner that could satisfy Fourth Amendment concerns. Kris's proposed substantive standards are not nearly as open-ended as those in Senator Specter's bill, which would permit indiscriminate surveillance of any U.S. person who has ever communicated with an agent of a foreign power (i.e., virtually everyone). Kris's proposal also improves on the Specter proposal in several other respects, and candidly identifies the possible constitutional obstacles that such legislation would raise, including a serious Article III question about whether a court can pre-approve a surveillance "program" writ large, rather than (as under FISA) evaluating interceptions on a case-by-case individualized basis. I don't have time over the next few days to blog further about Kris's draft proposal. I welcome others' comments on it in the interim.

R.I.P. Lena Tobol

Mark Graber

My Aunt Lee was the last New Dealer. I was always fascinated by her stories of my grandfather, who I never knew, and of life in the New York of the New Deal, which I could only read about. One thing was very clear. At some point in the 1930s or early 1940s, the Democrats did something that made Aunt Lee and numerous other Americans of her generation lifelong loyalists. For the next sixty years, my aunt religiously voted for FDR or whatever Democrat happened to occupy FDR's rightful place on the ballot. Democrats were the source of everything good in the world. Republicans, particularly Ronald Reagan (my exotic aunt lived in California), were the source of all evil. The younger members of her family also vote for Democrats, but with much less passion. In truth, the Democrats have done nothing since the Great Society to merit the passion and loyalty my aunt demonstrated throughout her life. When thinking of a progressive revival, we ought to think about what drove my Aunt Lee, a poor child of immigrants, who despite poverty, illness, and social pressures against women, fought for an education, fought to educate her children, and fought for a decent life for her and her community.

Aunt Lee died last week after a long illness. She was an exceptionally kind and decent person, giving everything she had to her family, liberal causes, and the Jewish community. When 90 years old and suffering from very painful arthritis, she would nevertheless spend every Friday evening driving other senior citizens to temple for religious services and much needed companionship. One can only hope that as her divine reward, she will now spend eternity playing her beloved scrabble with the Roosevelts. Eleanor had better bone up on her two letter words!

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