The NSA and Hamdan

Guest Blogger

Cass Sunstein

Marty Lederman, who has not been entirely thrilled with my tentative thoughts on the NSA surveillance, has asked for my views on the relevance of the Hamdan decision to that controversy. I'm grateful to him for asking and to Jack Balkin for providing me with an opportunity to answer. I'll get to the real question shortly, but let me begin with some background.

1. I hope that we can agree, perhaps especially in this area, on the law-politics distinction. The Clinton impeachment was clearly unconstitutional, but very few conservative law professors (or lawyers) were willing to say so, at least in public. Their own political views, and their dislike of President Clinton, led them to silence themselves or instead to support an indefensible view of the law. (Let's not even mention Bush v. Gore.) In this light, law professors who did not vote for President Bush might understand themselves to have a special obligation to try to put their own political views entirely to one side -- and to accuse the President of violating the law, or acting without a good-faith legal argument, only when they are certain that they would say exactly the same thing if their favorite Democrat were president.

2. Before Hamdan, it made sense to analyze the NSA question in the following way.

(a) Suppose that FISA did not exist. If not, the AUMF probably carries with it the authority to monitor conversations involving Al Qaeda, on the theory that such surveillance is a legitimate incident of the use of force. (Hamdi supports this argument, because the plurality found the AUMF to authorize detention, even though it is hardly explicit on that topic.) This argument might not be entirely convincing by itself, but it is strengthened by the fact that several lower courts have said that the President has the inherent power to engage in foreign surveillance. Putting these decisions together with the AUMF, the issue is pretty straightforward if FISA is put to one side. (There's also a Fourth Amendment issue but the President is probably on solid ground here.)

(b) FISA does make the issue much harder for the President. There's a plausible argument that FISA (i) overcomes the AUMF, because it's more specific and (ii) is constitutional, because it doesn't intrude on any authority that the President has under Article II. The contrary argument, which also seems to me plausible, is (i) that the AUMF is in a way more specific than FISA (because it deals with Al Qaeda), (ii) that the AUMF is the later enactment and hence trumps FISA in the event of conflict, and (iii) that the two statutes should be construed together in a way that fits, if fairly possible, with what might be part of the President's power as Commander-in-Chief. (Recall that lower courts have said that foreign surveillance is included within the power of the Chief Executive.) On this view, FISA does not ban the President from engaging in surveillance if he is monitoring conservations that involve Al Qaeda.

The specific intentions of the legislators who voted for the AUMF don't much matter (see Hamdi, refusing to ask about those specific intentions; see also Bradley and Goldsmith in the Harvard Law Review, carefully parsing the meaning of the AUMF without asking about specific intentions). But a powerful objection to this argument in favor of the legality of the NSA surveillance is made by Geoffrey Stone, who points out that FISA has a particular provision governing war. Maybe that provision means that the AUMF has to be fit with FISA -- and that so long as FISA, construed as applicable to foreign surveillance involving Al Qaeda, is constitutional (as I believe it probably is), then the program is unlawful after all. That's a reasonable argument, and in the end it might well be right. But the President has some possible responses here too.

What seems to me clear, on the basis of all this, is that even if the President's argument is unconvincing, it can be offered in good faith. It's far better than some of the ludicrous passages in the 2002 memorandum by OLC on coercive interrogation, and than other over-the-top OLC arguments, in the same general period, about the President's broad power to protect national security. It's probably better than President Truman's argument in the Steel Seizure Case. It's hardly a clear winner, but it's also not an entirely clear loser in the Supreme Court (would anyone be shocked, or faint, if it attracted two, three, or more votes?).

3. After Hamdan, the defense of the NSA foreign surveillance program is much more difficult. Justice Thomas took a route very similar to that sketched by the most plausible arguments for the NSA program -- and his view was squarely rejected by a majority. The Court refused to construe the AUMF as overriding the Uniform Code of Military Justice -- and it would be easy to say that the AUMF has the same relationship to FISA as to the UCMJ (that is, it leaves it 100% intact). The Court gave little attention to the claim that the President has full authority to create military tribunals in the face of congressional restrictions on that power -- and it would be easy to say the same thing for foreign surveillance. (The President does have historical support for his surveillance claim, but he also had such support for creating military tribunals. Maybe the historical support is stronger for surveillance -- but that is not clear.)

Perhaps most important, the Hamdan Court seemed to demand clear congressional support for the presidential action at issue, and the President does not have clear congressional support for foreign surveillance. (In case it's of any interest, I defend a general requirement of clear congressional authorization, at least when constitutionally sensitive rights are at issue, in a paper in the 2004 Supreme Court Review.)

The upshot is that after Hamdan, the NSA surveillance program, while still not entirely indefensible, seems to be on very shaky ground, and it would not be easy to argue on its behalf in light of the analysis in Hamdan. On the other hand, the Court was divided 5-3 (and on the lower court, Chief Justice Roberts voted with the 3). It remains to be seen whether and to what extent the analysis in Hamdan will stand the test of time -- especially if the composition of the Court changes.
Posted 4:22 PM by Guest Blogger [link] (21) comments

Hamdan and the NSA Domestic Surveillance Program: What Next?

Marty Lederman

As most of you probably know, I was from the outset not especially persuaded by the Justice Department's statutory defense of the NSA domestic surveillance program. Be that as it may, however, it seems to me that Jack, David Barron, and "Anonymous Liberal" are all correct that the Hamdan decision fairly decisively undermines whatever slight plausibility that argument might previously have enjoyed. (Orin Kerr intimates likewise.)

As David points out, if (as the Court held) the AUMF does not trump the limitations on military commissions that are only vaguely and implicitly lurking in 10 U.S.C. 821 and 836(b), surely that force authorization cannot supersede FISA's express provision that FISA and title 18 prescribe the "exclusive means" of engaging in electronic surveillance, and FISA's specific wartime surveillance provision, which authorized surveillance outside the FISA framework through December 3, 2001, but no later.

If we're all correct about this -- and I haven't seen any argument to the contrary -- then it raises two interesting questions:

1. What will OLC do when -- presumably within 45 days -- the NSA program must be reapproved? A.L. suggests that responsible lawyers, even those who are charged to push the legal envelope, should call a halt to the program. David recommends that Congress should tee up the question to DOJ. Stay tuned.

2. Will Cass Sunstein finally give up the ghost on his idiosyncratic view that the AUMF can be construed to authorize the NSA program?

I ask this not only because, as far as I know, no legislator has agreed with Sunstein and DOJ that the AUMF provided such authority. (One should be suspicious of any argument about congressional intent that doesn't reflect, well, any legislator's intent. Handy new canon of statutory construction: Interpretations that would come as a shock to all 518 legislators who voted for a bill are disfavored.) Nor even because Hamdan has so severely undermined the theory.

No, the main reason I'm curious about Professor Sunstein's current views is that he has just published an article in which he reads Hamdan to confirm the principle that "[i]f the president is acting in a way that threatens civil liberties, he will be probably lose unless Congress has explicitly authorized him to do that."

The Hamdan decision doesn't actually say that, and is not really about that question: The Court's holding does not depend on the absence of clear statutory authorization -- it turns instead on the fact that the President's commissions violated statutory limitations. But more to the point, even if Sunstein's characterization were apt, and clear stautory authorization is necessary in order for the Executive to infringe on personal freedoms, how can Sunstein adhere to his previous view that the vague and general authorization of the AUMF silently authorized the President to act in a way that would otherwise not only infringe on personal freedoms, but also transgress clear pre-existing statutory limitations?
Posted 9:42 AM by Marty Lederman [link] (24) comments

The Future of Same Sex Marriage

JB

Although supporters of same-sex marriage are no doubt disappointed, the New York Court of Appeals decision refusing to require same-sex marriage is not a significant defeat for the same-sex marriage movement. Rather, it is a setback for the particular strategy of using law suits based on state constitutional law to achieve equality for same-sex couples.

Once a majority of the New York Court of Appeals stated that "our Equal Protection Clause `is no broader in coverage than the federal provision,'" the result was a foregone conclusion. (A foregone conclusion, that is, based on a prediction of what the U.S. Supreme Court and most federal courts would probably do today.) In both Massachusetts and Vermont, courts read their state Equal Protection Clause (or common benefits clause, the Vermont equivalent), in ways significantly different from the federal Equal Protection Clause. That gave these courts room for maneuver, and allowed them to conclude that denial of marriage rights to same sex couples violated basic principles of equality.

However, when the New York Court of Appeals began with the assumption that it must follow federal constitutional doctrine in its current form, the result was disappointing but not at all surprising. Supporters of same-sex marriage are well aware that the last place they want to litigate same-sex marriage claims right now is in the federal courts.

The court-based strategy has been premised on finding states whose courts do not regard their constitutional doctrines as mirror images of the current U.S. Supreme Court's but have a significantly more progressive cast. The idea is that litigators would raise state constitutional challenges in these courts, hoping to get judicial decrees either ordering same-sex marriage outright (as in Massachusetts) or sending the issue back to the state legislature with instructions to come up with an equitable alternative (as in Vermont). Then supporters of same-sex marriage would fight hard to prevent the inevitable backlash effects and hope that the public would get used to the idea, which, in Vermont and Massachusetts it mostly has. After a number of successful state court victories of this type, other states would eventually come around, and, after winning victories in a majority of states, litigators would finally be ready to approach the federal courts.

However, this court-based strategy cannot be the dominant strategy for success for two reasons. First, there are only a limited number of state courts that fit these characteristics. Second, the strategy is far too optimistic about backlash effects. People feel very differently about legislatures creating rights for same sex couples than they do about courts doing the same thing. Winning in the courts is fine, but unless there is already significant public support for what courts do, choosing a litigation strategy often leads to populist reprisals that combine opposition to change on the merits with opposition simply because a court ordered the reforms. Unless supporters of same-sex marriage can quickly mobilize to respond to the backlash, their victories may be short-lived.

The better strategy in many states, perhaps most, is to work for legislative reforms directly, pushing for same-sex marriage but settling for civil unions if that can be achieved. If people win in legislatures, the courts tend to follow; if lots of state legislatures recognize same-sex marriages, civil unions or other marriage equivalents, it will become much more obvious to courts that denying same-sex couples the right to legally sanctioned partnerships treats them unfairly. That is to say, courts tend to change their minds just about when legislatures do: sometimes a little before and sometimes a little after. It is a mistake to think that all or most state courts will be significantly ahead of their legislatures on this issue. The Vermont and Massachusetts courts were ahead of their legislatures, but they are not necessarily a good sample of state supreme courts, as the New York decision suggests.

Proponents of same-sex marriage already are working for legislative reform as well as in the courts. They recognize that the more avenues of reform you pursue, the more likely it is that you will make progress. The problem with a multipronged strategy, of course, is limited resources. But an even more important resource will be patience; this will be a long struggle for equality.

One effect of the loss in New York may be a renewed emphasis on going to legislatures for reform rather than constitutional challenges in the courts, especially, as the number of likely state court venues diminishes. If that leads to a series of legislatures making changes on their own, without being prodded by courts, it will greatly enhance the democratic legitimacy of the movement for same sex marriage. And if that happens, it may turn out that the loss in the New York Court of Appeals was not a serious setback for same-sex marriage at all, but a blessing in disguise.

Posted 8:30 AM by JB [link] (8) comments

Hamdan, Geneva and Interrogations

Marty Lederman

Over on the new Georgetown Law Faculty Blog, some of my colleagues and I posted preliminary thoughts about Hamdan over the weekend:

Randy Barnett

Rosa Brooks

Neal Katyal (transcribed from oral remarks)

David Luban (transcribed from oral remarks)

Mark Tushnet (transcribed from oral remarks)

Carlos Vazquez

My contribution addresses some of the questions that have been raised about Hamdan, Common Article 3, interrogation policy, and a possible congressional move to supersede Common Article 3.

Also, Rebecca Tushnet has posted a link to a webcast of the terrific panel discussion on Hamdan that the GULC Supreme Court Institute convened last week, with Carlos, David, Neal and Mark.
Posted 9:53 AM by Marty Lederman [link] (0) comments

Chalk on the Spikes: What is the Proper Role of Executive Branch Lawyers, Anyway?

Marty Lederman

Well, Sandy's provocative challenge certainly deserves a response. Unfortunately, I don't have time for a full retort right now, because I'm consumed with other projects. Fortunately for me, I've already drafted or signed a couple of things that are a partial response, at least. One is this memo that I drafted along with 18 of my former OLC colleagues, articulating what we think are some of the "best practices" of that office. It is concedely aspirational: Although it describes, I think, the way the office usually operates, at least at its best, obviously it is not hard to find counterexamples, from any and all Administrations.

Also, my very first post to this blog identified some of the process-based ways in which OLC opinion-writing can go astray, with reference to the contrast between the two OLC torture memos.

Finally, last New Year's Eve, Jack published a post raising questions about government lawyering very similar to those that Sandy raises. In response, I drafted the following post that evening. (I'm not big on New Year's Eve celebrations.) Because I didn't have time to work on it, it never got to the point where I was satisfied with it. I'm still not satisfied. But I'm not going to work further on it anytime soon, so I thought it might be worth publishing now, at least as a rough first cut at some of the questions Jack and Sandy raise. And since its subject is, in some sense, constitutional "faith" -- namely, what it means for the President to "faithfully" execute the law -- perhaps it's appropriate to publish it now, in response to my far-too-generous-with-praise friend Sandy. All caveats relating to such a rough draft apply, of course:

Jack's post on lawyering raises some very interesting questions. Surely he's right that lawyers -- really good, respected lawyers -- have always been available to defend the indefensible. (By "indefensible" here, I am not referring, as Jack principally is, only to that which is morally indefensible, such as waterboarding; I'm also referring to conduct that might be perfectly acceptable from a policy perspective but that doesn't have a legal leg to stand on, such as the NSA wiretapping program.)

One minor observation: Although Jack is surely correct that some such lawyers are "rhetorical whores," willing to justify whatever their clients wish, or whatever will support their preferred political or policy objectives, that doesn't describe all that's occurring in these cases. I assume that Cass Sunstein, for instance, truly believes that the AUMF may have superseded FISA. I think that conclusion is egregiously, indefensibly wrong -- but Sunstein is not arguing it because a client has asked him to push the envelope or because he'll reflexively defend whatever the Bush Administration does: He's speaking his mind. Similarly, although many lawyers who tried to defend Bush v. Gore (including the writers of the per curiam) almost certainly did not believe what they were arguing, there are those (Nelson Lund, for example) who are, from all that appears, sincere defenders.

But I'd like to focus here on a more fundamental question that Jack's post raises but doesn't discuss in detail: whether lawyers -- especially government lawyers -- should be so "creative," at least in cases (unlike torture or slavery) where the legal judgments are not in the service of moral evil. "Is" doesn't equal "ought," of course, and so the question arises: Is it acceptable for government lawyers to (in Jack's words) "push the envelope on behalf of their client," where they believe that the policy being supported is morally defenisble? And, if so, to what degree?

The question is much, much harder than most people think -- and it's very different from the same question as applied to lawyers in private practice. If a private client asks a lawyer to push the legal envelope, client and lawyer both understand that there's a risk that the advice will turn out to be wrong in the eyes of the authorities, with possible legal consequences for the client. If the lawyer is any good, the advice will reflect such risks. In other words, the lawyer's job is to tell the client both what the "best" view of the law is, and what is at the outer bounds of legal arguments that might (but probably won't) carry the day.

The Executive, however, is the prosecuting entity. Thus, when an OLC lawyer or the AG advises that a course of conduct is lawful, she is not simply giving the President advice about possible legal exposure; she is, instead, effectively determining what the law will be as a practical matter -- she is sanctioning the conduct, and immunizing it against future prosecution by the Executive, at least insofar as the advice is within the bounds of what the legal culture deems "reasonable." (If the advice is widely viewed as wrong, the Executive may pay a cost in its relations with Congress, or the court of public opinion, or even in international courts or civil cases, where relevant. But it's inconceivable that the Executive would ever prosecute someone who reasonably relied on OLC or AG advice -- in part because of serious due process concerns.)

Given this lawmaking function of DOJ advice, is the DOJ lawyer obliged to provide the best view of the law, or is pushing the envelope, within the outer bounds of the "reasonable," acceptable? I start from the proposition that I hope all will share that it is the role of Executive lawyers -- the AG and OLC lawyers, in particular -- to assist the President in his constitutional obligation to faithfully execute the law. OK, but how broad is the range of faithfulness, or fidelity? And "faithful" to . . . what, exactly?

As a general matter, OLC attempts to give the President the "best" view of what the law allows, where "best" is generally understood to mean the answer to which the governing legal doctrines would most likely point (more or less akin to what a lower court does when it's trying to follow the "rules laid down" by the Supreme Court). If that view means that the President cannot undertake his preferred course of action, then in that case OLC has performed its proper role -- it's really the only entity within the Executive branch that is in place to impose such legal limits -- and OLC ought then to work with the White House to see if there is some other, lawful way to accomplish the President's ends, at least in part.

But let's be honest -- such a typical "neutral expositor" model does not invariably describe the advice that OLC and DOJ give the President, especially in matters related to war and national security. Historically there have been clear cases in which what the AG or OLC has done is to try to come up with a justification for Executive conduct that lies at one extreme of the range of possible "reasonable" legal answers, but that is fairly clearly not the "best" view of the law.

Perhaps the most notorious example was Attorney General Robert Jackson's opinion (prior to the Lend-Lease Act) that existing statutes gave the President the authority to acquire from the British Government rights for the establishment of naval and air bases in exchange for over-age destroyers and obsolescent military material. See 39 Op. A.G. 484 (1940). This opinion was roundly (but not uniformly) criticized as being an extremely tendentious, that is to say, mistaken, reading of the relevant statutes -- but obviously, Jackson was comfortable that it was within the bounds of what the legal culture would allow, even if he did not think that it represented the "best" legal answer to the important question that was posed to him.

Another, more modern example occurred in 1986, when Samuel Alito was one of the Deputy Assistant Attorneys General at OLC. A statute required the Executive to give prior notice of covert intelligence activities to eight members of Congress, and post-conduct notice to the intelligence committees "in a timely fashion." President Reagan did not give prior notice of the Iran-Contra affair to anyone in Congress, and delayed the post-conduct disclosure on a completely discretionary basis. OLC wrote an opinion concluding that this failure to provide notice satisfied the statutory mandate, see 10 Op. O.L.C. 159 -- what Professor Jeff Powell described as "the bizarre outcome . . . that a statute meant to limit the President's discretion places no practical limits on that discretion." The President's Authority Over Foreign Affairs at 13 (2002). As Powell rightly explains, the OLC opinion "is an exercise in statutory construction only in the Pickwickain sense that it assigns meanings to the words Congress enacted. If, as is generally assumed, the purpose of statutory construction has something to do with identifying and applying what presumable was the will of the legislating body--however difficult that may be in practice and even in theory--the opinion is a simple and indeed unembarrassed failure as a reading of section 501." (This is basically my view of DOJ's current reading of FISA and the AUMF -- but obviously others disagree.)

The key word here is "unembarrassed." OLC was more than willing to offer what was very plainly not the best reading of the statute, but a reading that OLC thought was at the far edge of the plausible and that least impinged on what OLC viewed as the President's constitutional prerogatives. (The statutory construction in the 1986 Timely Notification opinion was actually not the most outrageous thing about it -- that honor is reserved for the opinion's understanding of Congress's authority in the fields of foreign affairs and national security. But that's a subject for another day . . . .)

From everything I know, this is the model of legal advice that President Bush has expected of his lawyers, including OLC lawyers, with respect to the war against Al Qaeda. In Dana Priest's remarkable story the other day about the aggressive legal interpretations in this Administration in support of CIA covert action, there's this wonderful quotation from Deputy Director of National Intelligence Michael Hayden about their approach to the law:

"We're going to live on the edge. . . . My spikes will have chalk on them. . . . We're pretty aggressive within the law. As a professional, I'm troubled if I'm not using the full authority allowed by law."

This confirms what I've read in several places and what I've heard from numerous lawyers in the Executive branch: What the White House has asked of them is not to provide the "best," or most objective, view of the law, but instead to read the law as aggressively as humanly possible so as to give the President the broadest possible discretion in preventing another domestic attack: Don't worry so much about exactly where the line is -- it's ok to get chalk on your spikes. Lives are at stake. [UPDATE: Confirmation from Newsweek: "The message to White House lawyers from their commander in chief, recalls one who was deeply involved at the time, was clear enough: find a way to exercise the full panoply of powers granted the president by Congress and the Constitution. If that meant pushing the boundaries of the law, so be it."]

They are completely unapologetic about this. And I don't think it is obviously the wrong perspective to be using (even if it is very troubling if all the lawyers in the Executive Branch are using this standard, and no one is advising the President of what the best view of the law is). Of course, some of their legal advice -- the August 2002 Torture Memo, in particular -- has been far, far outside even the most extreme bounds of what's reasonable: The chalk is but a distant memory there. And I'm not defending that. But I think it is a very hard question whether Executive branch lawyers ought to "push the envelope," within the bounds of what the legal culture views as "reasonable," in order to enhance presidential authority in matters of national security.

I'm curious to hear what others think of this difficult question. But this much, I think, should be clear: If the Executive Branch is going to adopt such extreme legal views, it must do so publicly, in a way that allows for critique and democratic accountability. If it is acting on idiosyncratic, and extreme, readings of the law, it is wrong to hide that fact from the public -- to pretend as if it's business as usual. Justice Jackson's view of the legality of the destroyers deal might have been wrong, but he and the President announced the sale to the Congress and had the courage to provide the legal analysis supporting it -- thus giving Congress and the public the opportunity to apply checks and balances.

The practice in this Administration has been the polar opposite.

It is not acceptable to announce repeatedly to the world that we don't torture, that we abide by all our treaty obligations, and that we treat detainees "humanely" -- only to engage in secret waterboarding and hypothermia, based on equally secret legal determinations that construe the words "torture" and "humane" in an Orwellian fashion, that diminish treaty obligations down to nothing, and that assert a right of the President to ignore all statutory limits.

It's not ok to give the world the impression that we are staying true to our 50-year-old tradition of compliance with the minimum protections of Common Article 3 of the Geneva Conventions, whilst secretly trampling all over those protections.

It's not proper to give the public and the Congress and the FISA Court the impression that the Administration is in perfect compliance with FISA, all the while secretly approving a massive surveillance program that flatly violates FISA -- and that is based on a secret conclusion that Congress unknowingly approved such a program when it authorized the use of force against Al Qaeda.

We can argue about the virtues, the propriety, of unorthodox readings of the law by the Executive -- of going right up to the line and getting chalk all over one's spikes. But even if unorthodox, and pro-Executive, and aggressive, readings of the law are in some cases permissible, what should be beyond the pale is acting in accord with a body of secret law.
Posted 11:28 AM by Marty Lederman [link] (10) comments

"Creativity," candor, and lawyering

Sandy Levinson

I consider Marty Lederman to be the best--and most scrupulous--constitutional lawyer in the country, which means that I take everything he says with the utmost seriousness. In the thread on John Yoo, he suggests (responding to a comment by me) that "creative" lawyers should be candid about their straying from the relatively unimaginative straight and narrow. But I wonder to what degree any lawyers, including such admirable lawyers as those who served with Marty in the in the Office of Legal Counsel that he graced with his service between 1994-2002, are entirely candid with regard to the "creativity" of their arguments. Don't lawyers always claim that their arguments are well-founded in traditional materials, and that any "creativity" actually represents a "deeper understanding," rather than creative transformation, of these materials? I'd be curious to know of any briefs or opinions that openly acknowledge the "creativity" of the arguments being made, at least with regard to constitutional or statutory interpretation. I assume that one can more openly acknowledge "creativity" in common law cases where one decides that the traditional rule has become dysfunctional (e.g., contributory negligence as barring any recovery at all).

Consider the government lawyers during the New Deal, with regard to federal power under the Commerce Clause. In some ways this is at the heart of the debate between Bruce Ackerman and some of his critics, such as Cass Sunstein, with regard to the New Deal. Ackerman, of course, regards the New Deal as a fundamental, and therefore highly "creative," transformation of the American constitutonial system. Sunstein, like most New Dealers (at least in public) offers a more "restorationist" account, in which the Court returns to the correct understanding of federal power set out by John Marshall in Gibbons. Nothing "creative" there! Is there a "fact of the matter" as to which account is correct? And, if we agree with Ackerman, should New Deal lawyers have been expected to admit that they really were inventing bold new ways of conceptualizing congressional power under the Commerce Clause that affected a non-Article V amendment of our operating system (as, Marty and I would both agree, John Yoo is doing with regard to Article II and presidential power)?
Posted 2:53 PM by Sandy Levinson [link] (7) comments

Is Congress autonomous?

Sandy Levinson

As some readers know, I am a big fan of Daryl Levinson's article, "Empire-Building Government in Constitutional Law," 118 Harv. L. Rev. 915 (2005), in which he argues that the Madisonian thesis, expressed in Federalist 51, that members of Congress would be assiduous in protecting the "prerogatives" of their institution, is false, for two quite different reasons. The first, a variant of David Mayhew's well-known argument, is that members of Congress are primarily motivated to seek re-election (or, for the even more cynical, well-paying jobs on K St.), not by a concern to protect institutional prerogatives except inasmuch as they contribute to re-election. The second reason is that the rise of the political party, which the Madison of 1788 thought inimical to democracy, makes members of Congress more loyal to their parties than to their institution, especially when their party controls the presidency. This thesis is further elaborated in an article that Levinson has co-authored with Richard Pildes in the current Harvard Law Review, "Separation of Parties, not Powers."

So consider the consequences re the all-too-likely response to Hamdan. As Mark Graber has ably argued, it is far too early to have any confidence about the importance of the case. (Consider Zhou en-Lai's famous comment about its being too early even to pronounce on the ultimatele impact of the French Revolution.) But it is surely possible that the response will be exactly as Mayhew and Levinson would predict: The Republican Party is desperately eager to run one more election on the "terrorism" issue, and the Washington Post article cited by Mark suggests that they will try to make anyone who supports Hamdan--which, after all, says only, at the end of the day, that Congress has not authorized Bush to ignore the Geneva Conventions and existing laws--by refusing to give Bush a blank check to fight the war as he sees fit is, at best, a wimp and, at worst, a collaborator with terrorists. See, e.g., John Boehner's absolutely disgraceful attack on Nancy ("San Francisco liberal") Pelosi and the idiotic claim that she is supporting "special rights" for terrorists (as against the rights set down in existing law). If Republicans could run on the basis of demonstrated accomplishments, perhaps some would resist playing the "terrorism card," but, of course, they cannot, so basic incentives for re-election suggest that Republicans will try to make Hamdan into an albatross around the Democrats' neck. (Query, how many Democrats, themselves desiring re-election, will stand firmly behind Geneva and the Uniform Code of Military Justice? More or fewer than stood firm against the idiocy of the flag-burning amendmeng? And, of course, here the key number may be 60 instead of 67, if we are talking about the possibility of a filibuster against a blank check for Bush.) In addition to re-election pressures, there is also party loyalty, as Bush will play every card at his disposal to keep any independent-minded Republicans in line. John Warner, who is old enough to be beyond any further ambitions, may stand firm. But will Arlen ("all the backbone of a banana') Specter really do so, even though he is probably dying of Hodkins disease? There is nothing in the record of the past two years to give any encouragement on this point.

In any event, the response to Hamdan in Congress may be an interesting natural experiment with regard to whether anyone on Capitol Hill really cares about defending congressional independence against executive overreaching or whether, on the contrary, they will all, Republicans and Democrats alike, behave in accordance with loyalty to their own electoral intersts and their parties' perceived institutional interests.

One final, perhaps unrelated, point: Although I think that Stevens' opinion was admirable in every way, am I the only person who foundn it quite uneloquent, when all is said and done? That is, it seemed to me a wonderfully "lawyerly" opinion as it carefully eviscerated the Administration's arguments. But, in contrast, say, to Hugo Black's First Amendment opinions of the 1950s, which permanently etchned themselves in my then-undergraduate consciousness, or, for that matter, almost any of Scalia's dissents, where the reader always gets a very strong sense of what Scalia believes is a stake with regard to the country or culture outside the courtroom, there is little in Stevens' opinion that stirs the passions or leads one to want to mobilize politically. And, inasmuch as it is basically a "legal process" opinion, focusing on the lack of congressional authorization, it places the ball in Congress's court to stand firm or capitulate to those like David Addington, the subject of a superb--and extremely scary--profile in this week's New Yorker by Jane Mayer, who are, like John Yoo, certainly not remotely persuaded by the Hamdan majority. So perhaps this point isn't unrelated after all: Wouldn't it be wonderful if the opinion contained more quotable language about how basic American values are at stake with regard to the substance of the issues--i.e.. the rights enjoyed even by the (suspected) worst among us--rather than the focus on how existing law hamstrings the Administration in its desires to protect us against terrorists?
Posted 12:25 PM by Sandy Levinson [link] (14) comments

The Knicks Are No Mickey Mouse Organization

Ian Ayres

In an essay published in today's New York Times, John Donohue and I point out the eerie similarities between the rise and fall of Larry Brown and Michael Ovitz. Both were hired with great fanfare, both were fired after about a year. But there is a big difference. Disney paid Ovitz $140 million, while Knicks are refusing to pay Brown $40 million. The payment led to a huge shareholders suit at Disney:

In essence, shareholders sued Disney for not doing to Mr. Ovitz what the
Knicks did to Mr. Brown.

We argue that the Knicks' action may be a harbinger of things to come:

Corporations have felt that they were caught between a rock and a hard place with failed executives. They either have to stick with a manager who isn't working out, or they have to pay him or her an ungodly severance amount. This was the Hobson's choice that Disney's board encountered when it chose to pay Mr. Ovitz $140 million.

But the Knicks' action shows that corporations have a third option. In the end, it may not apply to Mr. Brown if the accusations of misconduct are contrived. But the examples of the Knicks and Disney suggest that corporations should give serious consideration to invoking the for-cause option before they fork over millions to an executive they think has been misbehaving.

Posted 11:08 AM by Ian Ayres [link] (0) comments

Truer Words Were Never Spoken

Marty Lederman

"'What the court is doing is attempting to suppress creative thinking,'" said Professor Yoo."
Posted 10:56 AM by Marty Lederman [link] (7) comments