Life tenure

Sandy Levinson

A brief comment on Mary Dudziak's interesting post: I spent an hour earlier today talking to a group of judges visiting UT about the proposal by Paul Carrington and others to engage in the de facto limitation of life tenure of Supreme Court justices, discussed earlier by Jack. I, of course, heartily support the proposal. I think we pay a high cost, without receiving adequate benefits in return, from the "full-life" (i.e., until death do we necessarily part) tenure enjoyed by members of the Supreme Court.

But doesn't any serious discussion of the crisis facing contemporary (young) academics have to address the fact that the only other group with federal-judge-type life tenure is academics? I am well aware, through having served on some prize selection committees over the past several years, of extraordinarily good books written by young academics at what to most of us would count as very obscure colleges and universities. They are blocked from moving up because few universities have vacancies, and the situation is surely not going to get any better as academics my age (67) look at their 401(k)s and come to the altogether sensible conclusion that retirement at 70 or even 72 no longer looks like such a great idea.

I have no idea what the "solution" to this problem is. Fortunately, the UT Law School is still hiring people, so I don't have to feel, when I look at myself in the mirror, that I'm taking up the slot that could go to someone younger (and cheaper) who is doing perhaps better work. (I hope it's only "perhaps"!). I suspect strongly that I could not take similar satisfaction were my appointment in a regular academic department at UT or anywhere else.

Judges are in the odd position of basically working for free once they meet the "rule of 80" (years of service+actual age), since they could retire at full salary. I presume they remain on the bench because it's by and large interesting work, and Supreme Court justices especially enjoy being fawned over and getting to weigh in on some important issues of public policy. Many academics might choose to keep teaching because they truly enjoy it, but, unlike federal judges, almost all academics also have an increasingly strong financial incentive to hold on to their jobs (and linked medical benefits).

Whatever else one thinks about the efficacy of legal rules, there can be no doubt that the Pepper Amendment, which basically invalidated compulsory retirement laws, has had massive impact on at least some institutions, including the academy.
Posted 6:16 PM by Sandy Levinson [link] (8) comments

Data on filibusters

Sandy Levinson

A fascinating posting by Ben Eidelson, a graduate student at Oxford, presents some illuminating empirical information about the (un)democratic character of filibusters. It turns out that the vagaries of the equal vote rule currently "favor" Republicans inasmuch as Republican filibusters (which, by definition, require 41 senators to vote against cloture for a bill favored by a majority of Democrats (and, perhaps, a Republican ally or two) are possible with senators who are significantly less likely, in toto, to represent a majority of the American public than is the case with Democratic filibusters. Obviously, Democrats represent far more of the larger states than do Republicans, even though, as noted in my earlier posting, Democrats (or sympathetic independents) do control Vermont, North Dakota, and Montana, while the only one-representative state currently controlled by Republicans is Wyoming). At the very least, this suggests a complexity in any argument about whether filibusters are per se "undemocratic," since we also have to confront, as part of any answer, the extent to which the Senate itself is so obviously undemocratic because of the equal-vote rule.

Incidentally, while I'm at it, let me answer the snarky questions from people who believe that every one of my positions is motivated by simple short-run partisanship: As a matter of fact, I was rather eager for the Republicans to invoke the "nuclear option" and break the filibuster with regard to judicial nominations, for two quite different reasons: a) sooner or later there would be a Democratic President, who should have a relatively free hand to name appointees, subject to majority approval by the Senate; and b) I had an altogether justified lack of confidence in the backbone of Senate Democrats re how they would define "so out of the mainstream" with regard to a "legitimate" filibuster. They rolled over and played dead on Roberts and Alito for the Supreme Court and accepted a number of bad nominees to the circuit courts, even if they did force Bush to sacrifice a couple of his nominees.

Furthermore, one of my political memories goes back to 1962, when I was working in DC and was lucky enough to be watching the Senate during a filibuster on a communications bill, which was being led by, among others, Paul Douglas, the liberal senator from Illinois who opposed the filibuster. What he said, I well remember, is that he didn't believe in "unilateral disarmament." Neither do I. This doesn't entail that the whole world wouldn't be better off with bilateral disarmament or with a less minority-protective filibuster (even if I have the satisfaction of knowing, thanks to Eidelson's data, that Democratic filibusters are less exemplary of minority tyranny than are Republican filibusters).

Posted 2:58 PM by Sandy Levinson [link] (24) comments

Grad school and joint programs in a down economy

Mary L. Dudziak

Applications are up at some law schools this year, in spite of law firm layoffs, although flat elsewhere, and many law schools, like other educational institutions, are cutting back. There is anxiety all around about placement for law grads, but there has been little attention to the question of whether structural changes in legal education are necessitated by the new economic climate. What about graduate school?

The always interesting Anthony Grafton has an essay in The Daily Princetonian, Graduate School in a New Ice Age. Hat tip. Grafton sets the current economic crisis in the context of the dark days for humanities departments in the 1970s. Difficult times moderated in the 1990s and after, but, he writes, "conditions remained difficult — and worse than difficult — for many students, but eased for those in the departments that adapted. It seemed that we had found the way to train students for the world they actually faced."
But now,

the floor beneath us has collapsed again....It has taken colleges and universities only a few months to go from prosperity to austerity. In the humanities, 15 to 20 percent of the jobs originally advertised for this year have been cancelled. And as university after university announces budget cuts and staff layoffs, it seems certain that next year will be even worse.

It’s time to think hard about our graduate programs and their relation to these new realities. Should we cut numbers even further? Emphasize professionalization even more? Can we contrive to give students something of the freedom and possibilities for wide-ranging exploration that their predecessors enjoyed before our permanent crisis took shape? Can we be frank about the professional situation that students face without inspiring despair?

These questions have no simple answers. But if we fail to pose and discuss them publicly, we will see another generation’s relationship with the university ruined by our refusal to face and discuss facts.

A prescient Ralph Luker suggested two years ago that some history PhD programs should close to ease a glut of recent PhD's on the job market.

Perhaps for some humanities departments, it will be a productive time to partner with law schools and other professional schools, and also to rethink the role of the MA in history.

It is always important to be careful about JD/PhD programs. Such programs at law schools that are not strong feeders into the law teaching market might attract students interested in law teaching, but who might then fare poorly on the law job market. But this need not be the only function of joint programs. With renewed interest in the MA, some schools might offer focused MAs in legal history or other areas, even for students or established scholars who earned their PhD elsewhere. The new Columbia/London School of Economics joint program in international history is an interesting model. I can imagine an MA in human rights history, for example, that would benefit scholars who need a background in international and human rights law.

Joint programs with professional schools might also be important for programs that build a strong public history emphasis. I would expect that a history PhD with an MBA might be attractive to students who see a possible career track in museum work, for example.

In the law school world, a down economy may ultimately mean a turn toward practicality, which for some may mean a turn away from interdisciplinarity. Forward looking programs, however, will find productive partnerships and new programs that meet emerging needs, and position them well for a future when the economy picks up again.

Cross-posted from the Legal History Blog.
Posted 9:32 AM by Mary L. Dudziak [link]

The Collapse of the "Good Faith" Excuse for Yoo (Bybee, Delahunty)

Brian Tamanaha

Defenders of the Bush Administration who argue against the criminal prosecution of former government officials for their illegal activity—torture, violation of FISA, etc.—uniformly raise a two part “good faith” excuse: 1) those who ordered and engaged in these illegal activities relied in “good faith” on Department of Justice legal opinions that authorized the activities; and 2) the legal opinions were “good faith” interpretations of the applicable law by Office of Legal Counsel lawyers (Yoo, Bybee, Delahunty).

The first part of this “good faith” excuse raises large questions: Can one rely in “good faith” on a memo which purports to authorize obviously illegal activity? Was it “good faith” for officials if their primary reason for seeking a legal opinion was to secure a defense against later criminal prosecution? Is “good faith” reliance a valid defense?

This post sets aside those issues to focus on the second part of the “good faith” excuse, which at first blush appears even murkier. The memos authorizing these illegal activities bear all the trappings of ordinary legal argument. How does one prove that these “legal opinions” were constructed in bad faith? The faulty legal analysis could, after all, have merely been the innocent mistakes of lawyers working on complex legal issues under stressful circumstances (as their defenders suggest).

But the recent release by the OLC of several of the relevant memos removes any doubt: these memos were elaborate exercises in manipulative legal argument. This cannot be explained away as post 9/11 haste and stress. The positions asserted in the memos were reiterated, elaborated, and expanded long thereafter.

OLC lawyers were faced with a big hurdle: the applicable law was directly contrary to what the Administration wanted to do. (That’s the thing about law—it can get in the way.) Rather than concede that the actions were illegal and could not be done, however, the lawyers constructed a covering legal analysis which arrived at the desired ends.

The soundness of their legal argument did not matter. What mattered was that OLC has the power to issue legal opinions that are authoritative for immediate purposes (within the executive branch) and the mere issuance of the opinion supplied the first part of the “good faith” excuse described above (providing a defense to those who directly engaged in the illegal conduct). (As an analogy, think of a tax lawyer knowingly preparing a letter that approves of the legality of an illegal tax shelter, thereby supplying the client with a reliance defense against subsequent IRS enforcement actions.)

I will indicate shortly why their “good faith” excuse has collapsed. But first it is essential to understand the extraordinary claims these OLC lawyers made. Their core argument, repeated time and again in these memos, is that, as head of the executive branch and Commander in Chief of the military, the president has the authority to do whatever he deems necessary, domestically and abroad, to conduct the “war” against terror. Their favorite phrase is that the president has “plenary power” (that is, absolute, unqualified) over these matters. If there was any doubt about this unfettered power (not in their minds), the Congressional resolution authorizing the president “to use all necessary and appropriate force” to combat terrorism (AUMF) supplemented and confirmed his plenary authority.

How far reaching is the president’s power? The president can authorize torture, approve of searches and seizures without warrants, order the domestic use of the military, abrogate treaties on his own authority, and he may “dispose of the liberty” of prisoners as he pleases, to offer a few examples, all without interference from courts and congress. The memos specifically assert that the First Amendment and the Fourth Amendment of the Constitution must give way when the president deems it necessary in defense of the nation. Civil liberties count for something, but ultimately they lose out (every time) when weighed against national security

Pause and let that sink in. It’s all there in the memos. Read them and be chilled.

This is America—land of the free, bastion of the rule of law. Yet lawyers in the OLC (Yoo, Bybee, and Delahunty) claimed that the president is above the law in the various respects identified above—and these were the official positions of the Department of Justice until the belated repudiation by outgoing OLC Deputy Steven Bradbury in his January 15, 2009, memo (although he claims that the memos were not relied upon internally much earlier).

No wonder Bradbury thought it necessary to reiterate in his repudiation memo a proposition that has long been taken for granted in the United States (until the Bush Administration): “The President, like all officers of the Government, is not above the law.” Remarkably, the earlier OLC memos pointedly claimed the opposite in multiple respects.

So why has the “good faith” excuse for these legal memos evaporated? Exhibit A is Bradbury’s repudiation. Remember that Bradbury is a Bush appointee who substantially shares the conservative views of his predecessors in OLC. Bradbury undoubtedly does not want his predecessors to be prosecuted. He has every reason to soft-pedal or explain away their “mistakes.” But in the end he issues a resounding indictment of their work.

The abject emptiness of their legal arguments is reflected in Bradbury’s unequivocal language, retracting point after point: “the assertions excerpted above are not the position of the OLC;” “the sweeping assertions in the opinions…are not sustainable;” “the prior opinion…is incorrect;” “We disagree…;” “This Office has substantial doubts…;” “we have substantial doubts…:” “The survey of early history [in the memo]…does not support the opinion’s assertion…;” the argument “is problematic and questionable…;” “the reasoning supporting these assertions is unconvincing;” “We found the two opinions’ treatment of this history to be unconvincing, their analysis…to be doubtful.”

As Bradbury makes clear, the legal analysis in these memos, time and again, was just plain bad legal argument. Some of the arguments veer into the bizarre. Consider this concluding passage from a Yoo-Delahunty memo arguing that the president can order warrantless searches (case citations deleted):

The courts have observed that even the use of deadly force is reasonable under the Fourth Amendment if used in self-defense or to protect others. Here, for Fourth Amendment purposes, the right to self-defense is not that of an individual, but that of the nation and of its citizens. If the government’s heightened interest in self defense justifies the use of deadly force, then it would certainly also justify warrantless searches.

Huh? The reasoning goes like this:

Individuals can use deadly force to defend against a deadly attack;

The government can use deadly force to defend the nation against an attack;

Therefore: the government can engage in warrantless searches.

As Bradbury asserted (politely), dismissing this analysis: “We believe that this reasoning inappropriately conflates the Fourth Amendment analysis for government searches with that for use of deadly force.” It’s stupefying. (There are a few other whoppers in the memos—like the claim that if the president has authorized actions contrary to the terms of a particular treaty this amounts to a “suspension of the treaty” rather than a violation.)

The OLC memos are replete with selective historical arguments, selective readings of constitutional and legislative history, selective citation to judicial precedents, selective readings of statutes, and selective leaps of logic. Advocacy of this sort is standard stuff for lawyers, but OLC lawyers are in a different position precisely because their opinions have authoritative consequences. There is a difference between what the law is and what the Administration wants the law to be, and the role of OLC lawyers is to advise on what the law is and on how the Administration may achieve its objectives consistent with the law (or to say that the actions cannot be done).

The positions taken in these memos were not “mistakes” in legal analysis by unskilled lawyers working under pressure. They were elaborately crafted by capable lawyers. The legal analysis nonetheless fails time and again because the positions they were determined to justify could not be legally justified. That is precisely why this was not “good faith” legal argument. To the contrary, these legal memos were carefully constructed unsound legal arguments. Short of advising that the actions could not be done consistent with the law, which was the only proper course, any legal argument they constructed would have been unsound because the actions were not legally permissible.

The law wouldn’t bend as far as they wanted. But they wrote the legal memos anyway, placing the president above the law. As a result, the president and those acting on his behalf were above the law—for a time.


Posted 4:46 PM by Brian Tamanaha [link] (106) comments

More on Calhoun

Sandy Levinson

James Read, the author of the new University of Kansas Press book on John Calhoun, Majority Rule versus Consensus, has asked me to post the following comment, which I am happy to do:

I would like to follow up on Sandy Levinson's post, "Does Calhoun still live?" I agree that John C. Calhoun's political thought sheds important, if also ironic, light on supermajority requirements, consensus rules, and the filibuster. The irony is that the better you understand Calhoun's thought, the more unworkable or unfair many of these supermajority requirements appear.

Calhoun argued that every important interest should have veto rights over collective decisions. But he did not intend simply to engineer deadlock. On the contrary, he assumed that collective action was urgently needed. He believed that blocking action was simply step one; this would create a crisis that, he assumed, would force the leaders of all interests and sections to deliberate together, discover the common good, and unanimously act upon it. He also assumed that the costs and risks of *failure* to act were equal for everyone, so that no interest could extort peculiar advantages by blocking action more essential to others. Only on these quite strong, indeed improbable assumptions, was a consensus model preferable to majority rule. If the outcome instead is either deadlock or extortion by powerful minorities, the consensus model results in policies that are more unjust than majority rule, not more just.

It seems to me this places a high burden of proof on advocates of supermajority requirements on matters like budget and spending. Consider for example California's two-thirds requirement to pass a budget. No question this creates a continuing political crisis, like Calhoun said. But can anyone argue that the result of California's budget crisis is a deliberative process better and fairer than we would get with a simple majority passing a budget? Or that the costs and risks of failure to act are equally distributed across all interests?

The same questions should be put to the filibuster in the U.S. Senate. (Calhoun, by the way, helped create the practice of filibuster when, as vice-president, he allowed John Randolph to ramble on forever in his attacks on President John Quincy Adams.) Unlike California's two-thirds budget rule, which is a constitutional provision, the filibuster is a Senate rule, owing its existence originally to majority vote and in principle alterable by majority vote -- the so-called "nuclear option" pioneered by Republican strategists a few years ago. So the filibuster falls short of the kind of constitutionally-guaranteed minority veto Calhoun sought. If there is any justification for keeping the filibuster rule -- and I'm not sure there is -- it would be that the majority rule fallback, the "nuclear option, arguably restrains the minority from excessive obstruction. If instead of a Senate rule, the 60 percent vote were made a constitutional requirement -- as some have advocated -- this in my view would empower an outvoted minority far beyond what is workable or defensible.

James Read


Posted 4:34 PM by Sandy Levinson [link] (23) comments

Does Calhoun still live?

Sandy Levinson

I was originally going to post what follows as a contribution to the discussion of my post below on the filibuster, but I decided to give it more prominence. One of the complaints (offered courteously, I might add) was that I am insufficiently attentive to the fact that we are intended to be a "republic," not a "democracy," and that my animus to the Senate (and then to the filibuster) denies this. I have addressed some of these complaints before, but it may be worthwhile to do so once more.

I agree that bicameralism is easily defensible, especially in large states or countries (like Texas, California, and the US), without this entailing equal representation of all counties or states. Senators can be elected from larger areas and serve longer terms. Moreover, I strongly support Larry Sabato's proposal that we add some "national" senators, either by election or by ex official appointment of, say, former presidents and vice presidents--yes, this would include George W. Bush and Dick Chency--and the like.

I agree, incidentally, that the filibuster is rarely purely small state-large state. And there are certainly some small states, like Vermont, where two Democratic senators counterbalance the two Republicans from Texas. And there is some pull to the argument that 47% of the electorate should not be ignored. The question, though, is whether 41% of the members in one house, who may or may not, depending on sheer contingency, represent anything close to even 47% of the electorate, should be able to veto legislation supported by substantial majorities.

What really has to be debated, in all seriousness, is whether the "Republican Form of Government" that some of you are counterposing to my advocacy of greater "democracy" boils down to some version of John C. Calhoun. There is nothing silly about Calhoun's theory. My friend (and fellow Balkinization contributor) Mark Graber often asserts the attractiveness of the Madisonian version of what political scientist Arend Lipjhart has called "consocialitionalism," i.e., the organization of the polity to make sure that it take more than a simple majority to rule. According to Lipjhart, this promotes a valuable spirit of "consensus" (similar to "bipartisanship"). Calhoun's is certainly the most worked-out version of such arguments in American history, though, interestingly enough, there are overtones of such ideas in some of the writings of Lani Guinier on voting design. Indeed, the University of Kansas Press has recently published a new book by James H. Read, Majority Rule versus Consensus: The Political Thought of John C. Calhoun, which I own but have not yet read. The Press usually publishes excellent books, and I have no reason to think that Read's book is an exception.

But my central point is that a Calhounian reading of "republicanism" (putting to one side that Calhoun originally created his theory to defend the interests of slaveowners) puts the lie to any easy notion that the United States is being honest with the rest of the world in pronouncing itself committed to the "democracy project." Not one in 1000 persons, even political sophisticates and political theorists, will associate 21st century "democracy" with Calhoun.

UPDATE: A reader has reminded me that Vermont does not have two Democratic senators inasmuch as Bernie Sanders, a Democratic Socialist, identifies himself as an "Independent" (like Joe Liberman), though he votes with the Democrats on organizing the Senate and the like. So I suppose I should use North Dakota (Kent Conrad and Brian Dorgnan) and Montana (Max Baucus and John Tester) as my examples of two Democratic-senators-states counterbalancing Texas and, say, Tennessee. (Interestingly enough, there aren't any other large states that currently have two Republican senators. The Republican Party has become basically a regional (i.e., Southern) party. Still, the point is that it is a mistake to view Democrats as necessarily the losers in the egregious over-representation of small states. (And, no doubt, the fact that Democrats have half of the senators in the "wheat-belt" states (Kansas, Nebraska, Iowa, and the Dakotas), a majority if one counts Minnesota, helps to explain why it may be impossible to adopt President Obama's sensible proposals to clip the indefensible subsidies that go to agribusiness.)



Posted 4:13 PM by Sandy Levinson [link] (24) comments

The beginning of the end of DOMA?

Andrew Koppelman

Today, the legal organization GLAD (Gay and Lesbian Advocates and Defenders) filed a lawsuit challenging the federal Defense of Marriage Act (DOMA), which, in pertinent part, denies same-sex married couples every single Federal benefit related to marriage. The suit, brought on behalf of eight married couples and three widowers, is the first concerted, multi-plaintiff to Section 3 of the Act, which denies spousal protections in Social Security, federal income tax, federal employees’ and retirees’ benefits, and the issuance of passports. It is also the first suit in which plaintiffs who were married in their state of residence applied for federal benefits and were denied them.

The plaintiffs’ claim is a powerful one, and it’s hard to imagine how one could write an intellectually honest opinion rejecting it.

The complaint in the suit claims that the statute “is motivated by disapproval of gay men and lesbians and their relationships, an illegitimate state interest.” It’s clear from the language that the attorneys are relying principally on two Supreme Court precedents, Department of Agriculture v. Moreno (1973) and Romer v. Evans (1996). Those cases, together, show that DOMA can’t withstand constitutional scrutiny. (Two Federal Court of Appeals judges have recently arrived at a similar analysis.)


Moreno invalidated a 1971 amendment to the Food Stamp Act that excluded from participation in the food stamp program any member of a household whose members are not all related to each other. Congress, the legislative history showed, was attempting to prevent “hippie communes” from receiving any stamps. The Court held that this purpose was fatal to the statute: “[I]f the constitutional concept of “equal protection of the laws” means anything, it must at the very least mean that a bare . . . desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.” Like DOMA, the law in Moreno sought to keep federal benefits out of the hands of a group Congress didn’t like, and the Court held that those benefits had to be provided.


The Court expressly relied on Moreno in Romer, which involved an amendment to the Colorado constitution (referred to on the ballot as “Amendment 2”), which provided that neither the state nor any of its subdivisions could prohibit discrimination on the basis of “homosexual, lesbian or bisexual orientation, conduct, practices or relationships.” The amendment, Justice Kennedy’s opinion for the Court observed, “has the peculiar property of imposing a broad and undifferentiated disability on a single named group.” This went beyond any of the justifications proffered by the state. The Court thus felt compelled to “conclude that Amendment 2 classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else.” The broad disability imposed on a targeted group “raise[d] the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected.”


DOMA cuts off federal benefits to a targeted, politically unpopular group, just like the law in Moreno, and it does so in a remarkably broad and undifferentiated way, just like the law in Romer. None of the government’s rationales for the law that were stated in the House Committee Report, cited in the brief, seem likely to be particularly persuasive, and some of them – “defending traditional notions of morality,” “advancing the government’s interest in conserving scarce resources” – were presented and rejected in Moreno and Romer.


The case also shows the implicit normative premises of rational basis analysis. Moreno and Romer are both cases where laws were invalidated for lacking a rational basis, but any statute's terms suggest a purpose that the statute rationally serves. See Robert Nagel’s famous student note, "Legislative Purpose, Rationality, and Equal Protection," 82 Yale L. J. 123 (1972). The real issue is whether some goals are impermissible, a question that can't be answered on the basis of "rationality."


Since 1996, when DOMA was passed by overwhelming margins in both houses of Congress, the country’s attitudes toward gay people has evolved rapidly, to the point where this kind of mindless lashing out at gays looks a lot less attractive. In 1996, otherwise reasonable people thought it a pointless waste of taxpayer dollars to look after the basic needs of gay couples and their families. That callousness no longer looks so rational, and increasing numbers are ready to recognize gay relationships. The burden of proof now lies on those who want to defend this discrimination, and it is very hard to articulate a basis for this discrimination that makes sense. That’s the ultimate reason why DOMA is doomed.


Posted 3:26 PM by Andrew Koppelman [link]

Go Big or Go Home

JB

This article from Politico gives several reasons why Obama has decided to drop an enormous agenda in Congress's lap in the form of his budget proposals. As it turns out, the strategy is overdetermined: several factors point in the same direction. The rhetoric of emergency allows Obama to insist that drastic times call for revolutionary measures; his influence is at its height and will only decrease over time; throwing everything at Congress allows him to delegate the details to the political process, so that Congress can take some credit (and blame); and finally, rather than bargaining with himself by offering more modest proposals, Obama increases the chances of significant change: he wins if only a portion of what he proposes makes it through.

Obama might well be accused of asking Congress to do more than is within its capacities-- the current meme from the pundits is "overload"-- but in fact, one of the paradoxes of separated powers between the President and Congress is that the less there is to do, the easier it is for the President's adversaries to slow things down.

When only a modest number of mid-sized to small things are on the agenda, when the time does not seem urgent, when claims of emergency don't seem so plausible, and the fate of the economy doesn't seem to hang in the balance, stalling and obstruction doesn't look quite as petty. Conversely, if the President stakes out a large agenda, goes over the heads of Congress to the people and repeatedly demands that Congress must act quickly, because emergency demands it, he gains a strategic advantage. It's harder to hold up everything when there is so much being held up. The more that Obama throws at Congress, and the more he insists on the "fierce urgency of now," the more legislation they will likely process and the more the president's political opponents-- who in our system ordinarily rely on tactics of holdup and delay-- are disadvantaged.

(Sandy Levinson's post immediately below pointing out the antidemocratic difficulties created by the filibuster might suggest that Obama won't be able to pass anything. In fact, the story is more complicated. When the President is able to convince the public that there is an emergency, the filibuster generally does not stop legislation-- rather, it affects the content of the legislation, watering it down or adding a number of extraneous requirements or expenditures. The filibuster, like other tactics of delay and obstruction, is most powerful in non-emergency situations. When the President effectively controls the agenda through the politics of emergency, the filibuster is less potent, as we can see in the case of the Democrats rolling over when Bush used an immediate threat to national security to justify the Patriot Act; and indeed, Democrats rolled over repeatedly years later when Bush used the threat of dire circumstances to justify the Military Commissions Act, the Protect America Act, and the FISA Amendments Act of 2008. Whatever you can say about Bush, he certainly understood how to milk the politics of emergency for all it was worth.)

Here's another way to look at it: the system of separated powers-- and its multiple veto points-- creates the illusion that Congress's legislation processing capacities are much smaller than they actually are. The fact that people can delay and obstruct doesn't tell you how long it takes to pass legislation when people feel considerable pressure not to delay and obstruct. The recent bailout bill is one example; the Bush tax cuts, the PATRIOT Act, and the AUMF against Al Qaeda and for the the war in Iraq are another; even more remarkable examples are offered by Lyndon Johnson and FDR when they pushed enormous amounts of legislation through Congress in a relatively short space of time.

Most Congressmen and Senators don't actually read the bills they vote on anyway; so it's not as if they can realistically plead that they need more time to digest legislation and think about it. Our national representatives are quite used to voting on-- and ardently defending-- bills, even enormous bills, about which they understand only the broadest outlines. Rather, whether you like it or not, information processing of legislative proposals-- and especially large proposals-- is generally delegated to others. Obama could be straining those capacities, but as previous historical examples suggest, there is more capacity than you would think given the normal amount of obstruction in the system.

You should not confuse this analysis with a claim that the legislation Obama is sending to Congress is a good idea. The legislation that comes out of an accelerated process may turn out not be wise legislation-- that's why our Constitution has multiple veto points in the first place. But we shouldn't confuse that fact either with what makes sense strategically or with Congress's capacity to process legislation.



Posted 2:05 PM by JB [link]

The End of the Yoo Doctrine

JB

The Office of Legal Counsel has just released a series of previously secret opinions from the Bush Administration. Perhaps equally important, it has issued two remarkable opinions, one from October 6th, 2008 and one from January 15th, 2009 which essentially disown the extreme theories of Presidential power offered during the crucial period between 2001 and 2003 when John Yoo was at the OLC.

These two memos were issued in the last days of the Bush Administration and they bear the signature of Steven G. Bradbury, the Acting OLC head from 2005 to 2009 and who wrote memos justifying many of the Bush Administration's detention and interrogation practices after the original torture memos were revealed and disowned. These two memos from October 2008 and January 2009 do not reverse the OLC's views about the legality of specific interrogation, detention and surveillance practices. What they do is to announce that the theories used to justify these practices are no longer taken seriously at the OLC and that executive branch officials should not rely on them.

The October 6, 2008 memo disowns Yoo's secret October 25, 2001 memo which stated that if the government used the military to fight terrorism inside the United States, (1) the Fourth Amendment's ban on unreasonable searches and seizures would not apply to limit domestic military operations, (2) that the First Amendment's guarantees of speech and press might have to be subordinated to military necessity, (3) that the Posse Comitatus Act, which makes it illegal to use of the military for domestic law enforcement purposes, would not apply.

The January 15th memo is even more striking. It disowns statements made in a number of OLC memos (mostly authored by Yoo) made in the wake of the 9/11 attacks. It attempts to excuse these statements on the grounds that the OLC memos were issued under extraordinary circumstances and it notes that, in contrast to usual OLC practice, these memos offer broad hypothetical statements rather than responding to concrete situations. The January 15, 2009 memo insists that the OLC has not relied on these disowned statements of law since 2003.

First, the January 2009 OLC memo disowns the claim, made in several OLC memos, including the infamous torture memos, that the President has the sole power to decide on conditions of detention and interrogation of captured individuals and that any attempt by Congress to to interfere or regulate what the President does with persons he captures or detains (for example, through a ban on torture or an attempt to regulate military commissions) would be unconstitutional.

Second, the January 2009 OLC memo disowns the statement in previous memos that FISA should be interpreted as not restraining the President's ability to engage in warrantless domestic surveillance in order to avoid a potential conflict with the President's powers under Article II. These memos argued in effect that FISA would be unconstitutional to the extent that it prevented the President from disobeying its limitations on domestic surveillance.

These two disowned claims lie at the heart of the Cheney/Addington/Yoo theory of presidential power-- namely, that when the president acts as commander in chief Congress may not restrict in any way his military decisionmaking, including decisions about detention, interrogation, and surveillance. The President, because he is President, may do whatever he thinks is necessary, even in the domestic context, if he acts for military and national security reasons in his capacity as Commander in Chief. This theory of presidential power argues, in essence, that when the President acts in his capacity as Commander-in-Chief, he may make his own rules and cannot be bound by Congressional laws to the contrary. This is a theory of presidential dictatorship.

These views are outrageous and inconsistent with basic principles of the Constitution as well as with two centuries of legal precedents. Yet they were the basic assumptions of key players in the Bush Administration in the days following 9/11.

The January15, 2009 memo offers various reasons why these conclusions are incorrect and why they fail to take into account an abundance of legal materials-- including the text of the Constitution itself, which gives Congress the powers to regulate captures. All this might seem to suggest that the previous OLC memos were badly thought out and badly reasoned. Interestingly, however, the January 15, 2009 memo drops a footnote saying that neither this memo nor the October 6, 2008 memo "is intended to suggest in any way that the attorneys involved in the preparation of the opinions in question did not satisfy all applicable standards of professional responsibility."

The October 2008 and January 2009 memos are the Bush OLC's way of distancing itself from its conduct during the period when John Yoo was at OLC and when the Cheney/Addington/Yoo theory reigned supreme. It is important to recognize that these two memos are largely concerned with disowning particular broad claims of constitutional law, and they do not disown any of the Bush Administration's specific policies regarding surveillance, detention, and interrogation. Indeed, after John Yoo left the OLC the Bush OLC was able to justify many of these policies without the Cheney/Addington/Yoo theory, by arguing for example, that applicable legislation should be read very narrowly or that Congress had authorized what the Bush Administration wanted to do in the September 18, 2001 Authorization for the Use of Military Force. No one should confuse these memos with a reversal of Bush Administration policy-- instead, they are an attempt to disown a particular theory of unlimited Presidential power that was an embarrassment to the professional standards of the OLC. In this sense what is remarkable about these two memos is not that they change any concrete practices but that the OLC felt the need to reverse itself years later and to disavow a particular type of reasoning-- reasoning which sought, in secret, to justify a theory of Presidential dictatorship.


Posted 7:00 AM by JB [link]

Jeff Tulis on presidential constructions of emergency

JB

In response to my previous post comparing how Bush and Obama have both used of (and constructed) emergency as a political strategy, Jeff Tulis (of the University of Texas Government Department) writes:

1. On additional parallels -- both Bush and Obama define the serious crisis as an extrapolation to the future from a less serious current circumstance in the present. Thus, Bush extrapolated from 9/11 a more serious global threat if too little were done quickly and Obama extrapolates a much more serious economic crisis in the future if too little is done quickly. This is interesting because the serious crises in both cases are anticipated, not yet actual, and the actions of each President make it difficult to refute their claims (since the actions affect the future making it difficult to assess the counterfactual regarding what it would have looked like had they not acted).

2. On additional differences -- Obama has not only been more transparent, he has also been more respectful of the legislative role. He has not threatened to institute emergency regulations whether or not Congress authorizes them. He has not claimed he did not need legislative authorization. Indeed, he sought and received not just "authorization" but actual legislation. Had Bush's actions been parallel to this, he would have sought, say, a declaration of war. Or he would, like Truman in the steel seizure, have taken action but indicated at the same time that the Congress was invited to disagree and he would follow Congress's will if they rejected his policy or set a new one. To the extent that Bush did seek Congressional authorization, he presented his partisans with the bill, the wording, almost every detail. Obama, on the other hand, left considerable discretion to the legislature (and has been criticized by his own partisans for not dictating the process).

Posted 1:11 PM by JB [link]

Government of the filibuster and by filibuster: Ever more thoughts on our defective Constitution

Sandy Levinson

Jean Edward Smith has posted an interesting piece on "Filibusters: The Senate's Self-Inflicted Wound," correctly noting "the trivialization of the filibuster in the Senate" and the reality of what can only be called minority tyranny. Smith notes that whatever rationale once justified the filibuster with regard to protecting some identifiable state institutional interests from the ravages of the national government went out the windoow with the 17th Amendment. "But with the direct popular election of senators, all of that changed. Senators no longer represented state governments, they represented the people. The rationale for providing states a veto through the use of the filibuster no longer obtained." Indeed, as I have argued repeatedly, the rationale for equal voting power in the Senate no longer obtains either; it has turned into the nation's most important affirmative action program, where the beneficiaries are the residents of small states with inordinate power to block legislation or to seek self-serving rents (see, e.g., Maine Senators Snowe and Collins). Smith concludes as follows: "In the great legislative reapportionment cases of the 1960s, the Supreme Court defined democratic government as majority rule based on the principle of one person, one vote. It is time to apply that standard to the Senate." But, of course, if we applied that standard to the Senate, far, far, far more than the filibuster would fall.

It's worth noting that the Times has also published an op-ed that calls for Harry Reid to "detrivialize" the filibuster by bringing up everything for a vote and forcing the Republicans to spend their nights in the Senate keeping the floor and to be publicly accountable for obstructing the popularly supported majorities of the House and Senate, instead of capitulating to the ludicrous "phantom filibuster" custom that has arisen over the past twenty years or so.

But I suppose it's just too radical to think of truly democratizing our political system. It's easier to fantasize about building democracy in Iraq and Afghanistan.



Posted 11:47 AM by Sandy Levinson [link] (34) comments