Foreclosures and the Rule of Law

Frank Pasquale

Is the US becoming a third world nation? Arianna Huffington's recent book makes the case, arguing that crumbling infrastructure and vast inequality herald a new era of unaccountable elites. She argues that "our financial system [has] become a bad carnival game where the rich always get the grand prize and the average American walks away empty-handed."

Matt Taibbi directly connects financialization with the decline of common infrastructure in his new book, Griftopia. He describes a litany of roads and bridges "already leased or set to be leased for fifty or seventy-five years or more in exchange for one-off lump sum payments of a few billion bucks at best, usually just to help patch a hole or two in a single budget year." Taibbi says the process is "stripping wealth out of the heart of the country," reminiscent of the extractive industries of Nigeria or Equatorial Guinea. Even the New York Times's moderates are finding the US uncomfortably close to a "banana republic," with Nicholas Kristof concluding that "You no longer need to travel to distant and dangerous countries to observe . . . rapacious inequality. We now have it right here at home."

Attorneys have a difficult time coming to grips with this new political economy. Many wholeheartedly believe that today's chief executives deserve to make four or five hundred times the average worker's wages (rather than the roughly fifty-fold multiple prevalent in 1980 America, and elsewhere in the world today). Perhaps the nation's richest 1 percent in some sense deserves to have captured 80% of the increase in income from 1980 to 2005. These are moral claims that cannot be conclusively proven or disproven.

But we as attorneys can at least insist on a common rule of law for all. And that's what our legal system has grievously failed to provide during the foreclosure crisis. As the indisputably pro-market Jonathan Macey notes, "the banks have created significant legal exposure for themselves 'by committing fraud upon the courts.'" And yet the first thing our Congress could think to do was to endorse legal cover for them, as eagerly as it retroactively immunized warrantless wiretapping.
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Posted 9:05 PM by Frank Pasquale [link]

How to Get Congress to End Don’t Ask, Don’t Tell

Jason Mazzone

President Obama opposes Don’t Ask, Don’t Tell and he has asked Congress to repeal the law. Repeal, however, is now stalled. Despite the continued urgings from the White House, there is little likelihood that Congress will pass a repeal measure before the 112th Congress convenes on January 3, 2011.

The President has a way around the problem, one that can result in the end of DADT with congressional acquiescence.

Here is what the President should tell Congress:
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Posted 3:49 PM by Jason Mazzone [link]

Oh, please beat me hard

Andrew Koppelman

Today’s New York Times reports: “Republicans are standing by their campaign vows to slash spending for domestic programs immediately by at least one-fifth — $100 billion in a single year — even as many mainstream economists say such deep cuts could further strain the economy and should await its full recovery.”

The story highlights the peculiar situation the Republicans now face. From the standpoint of electoral accountability, it is likely that the voters will reward them precisely for further straining the economy and prolonging the recession.
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Posted 2:12 PM by Andrew Koppelman [link]

Constitutional Dictator (and Maximum Leader) Ben Bernanke Issues New Stimulus Plan Without Congressional Approval

JB

So here's what happened. On Tuesday the voters gave the Republicans control of the House of Representatives and several Senate seats because they opposed bank bailouts and Obama's stimulus plan. As a result, Barack Obama understands that he won't be able to pass a new stimulus bill to improve the economy. The newly elected Republicans simply won't stand for it, and many Democrats are just too scared of what the public would say.

Indeed, if President Obama had showed up at the press conference immediately following the elections and announced that regardless of the results of the elections, he was proposing a new 600 billion dollar stimulus plan, and that he expected Congress to pass it immediately, reporters would have thought he was delusional.
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Posted 6:05 AM by JB [link]

Justices Scalia, Alito Square Off on Originalism

David Gans

Supreme Court Justice Antonin Scalia is the nation’s most important conservative originalist, a long time champion of the view that the original intent of the framers binds the Justices, and it often falls to progressives to point out the pitfalls of a version of originalism that seeks to divine what James Madison would have done if faced with today’s unique technical challenges and constitutional questions. So, it’s a pleasure to see Justice Samuel Alito take Justice Scalia to task for his faulty originalism.

The Scalia-Alito debate took place Tuesday during the Court’s oral argument in the case of Schwarzenegger v. Entertainment Merchants Ass’n, a First Amendment challenge to a California law regulating violent video games. Over the course of the argument, Justices Scalia and Alito went toe-to-toe, debating whether the original intent of the 18th Century framers of the First Amendment should dictate the constitutionality of governmental efforts in the 21st Century to limit children’s access to violent video games.

It’s usually conventional wisdom that the Constitution’s text matters most, and the framer’s original intent matters least, in cases involving modern technologies, like wiretaps or the internet, which the framers could never have imagined, a point Justice Scalia himself recognized in a 2001 ruling that the Fourth Amendment limits government use of thermal-imaging devices. But, during Tuesday's argument, Scalia took a different tack, repeatedly arguing that the California law regulating video games was contrary to the original intent of the men who framed and ratified the First Amendment. California’s regulation of violent expression in video games, Scalia urged, was a “prohibition which the American people never . . . ratified when they ratified the First Amendment.” Portrayals of violence, Scalia said, were understood by the framers to be part of the freedom of speech the First Amendment protected. For Scalia, that was the end of the matter.

Mocking Justice Scalia’s approach, Justice Alito shot back, telling California’s Deputy Attorney General that “what Justice Scalia wants to know is what James Madison thought about video games” and if “he enjoyed them.” Alito pointed out that video games are a “new medium that cannot possibly have been envisioned when the First Amendment was ratified” and that it was “entirely artificial” to say that the framers meant to protect violent video games in which children act out violence because the framers would have accepted violent portrayals in books. Justice Scalia had no convincing reply.

Justice Scalia may well be correct that the California’s limit on violent video games is contrary to the best interpretation of the First Amendment’s broad text, but he hardly helps his cause by defending a wooden form of originalism that pretends the framers resolved constitutional questions they could never have imagined. If this is what passes as originalism from the nation’s most prominent originalist, count me out.

David Gans is the Director of the Human Rights, Civil Rights & Citizenship Program at the Constitutional Accountability Center. This post is cross-posted at Text and History.
Posted 3:43 PM by David Gans [link] (48) comments

Political Polarization and the Nationalization of Congressional Elections

Rick Pildes

Cross-posted from Election Law Blog

As demonstrated again in the 2010 elections, the single most significant fact about American politics over the last generation is the emergence of hyperpolarized political parties. The parties are both internally more unified than in prior decades and more sharply differentiated from each other. This is not a transient fact. This polarization has began roughly in the 1980s and has been increasing constantly ever since. Indeed, the 2010 election cycle saw an even further purification of the parties, as a number of more centrist or moderate figures were eliminated during the primary process. As I have written about, this hyperpolarization will have numerous consequences for both elections and governance, one of which was played out yesterday: congressional elections are likely to be more nationalized. They will be much more referenda on the political parties and their leaders than individualized judgments about particular House and Senate candidates. Candidates will rise and fall with the fate of their political parties more than in the past. And the fate of the parties will be heavily determined by public judgments about the party's leaders, particularly, for the party in power, the President. That is the best explanation, I believe, of why we have now experienced three cycles in a row of "wave" elections, with yesterday's being the most dramatic example.

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Posted 7:51 AM by Rick Pildes [link] (9) comments

At Guantánamo, Blackstone Has Left the Building

Guest Blogger

Liza Goitein

An article in last week’s Wall Street Journal notes that Republicans in Congress are questioning the Obama administration’s decision to transfer some Guantánamo detainees to Europe. Fresh off their success in preventing any further transfers to Yemen, these members are now trying to "Yemenize" countries like Spain, Germany, and France, raising the specter that these countries—all of which are targets of Al Qaeda themselves—somehow lack the will or the ability to keep tabs on former detainees. According to the article, "Republicans cite an estimate from the Pentagon that some 20% of the detainees released under President Bush have returned to the fight. They say Mr. Obama should abandon the release policy in light of that figure."

Leave aside, for the moment, the flaws in the reporting of the Defense Department’s numbers (when the DoD’s numbers are read accurately, it appears that a much smaller percentage of released detainees—perhaps only 4%—have returned to terrorism). And leave aside the fact that these same members of Congress never uttered a peep when President Bush released hundreds of detainees from Guantánamo. The real story here is the lawmakers’ comfort with continuing to imprison a group of men indefinitely when prior experience suggests that most of them—historically, 80% or more—would pose no danger if released.

Remember that these detainees are not convicted criminals, whose sentences serve, in part, as punishment and deterrence to others. Under the law of war, the sole justification for holding the Guantánamo detainees is to prevent their return to battle. In traditional wars between nations—as I’ve written previously—such return is a near certainty, as soldiers are bound by the laws of their countries to fight. The low 20% figure reported by DoD should thus cause Republican (and Democratic) lawmakers to question whether the law of war detention framework applies at all to the non-traditional war we’re now fighting—not to seek greater use of that framework.

There’s also the little matter of whether the detainees were ever combatants in the first place. There can no longer be any serious dispute that some of the individuals held at Guantánamo were erroneously detained. Indeed, it would be surprising if that were not the case, given the manner in which many detainees were apprehended: they were sold to allied forces for a bounty after the U.S. air-dropped leaflets over Afghanistan promising thousands of dollars to anyone who turned in a member of the Taliban or al-Qaeda. The courts have now granted more than two thirds of the Guantánamo habeas petitions that have come before them.

But Republican lawmakers are apparently uninterested in this detail. If 20% of released detainees supposedly returned to terrorism, then "Mr. Obama should abandon the release policy," period—regardless of whether that means continuing to detain some people who are not terrorists and never were. It is a stark reversal of the maxim, first penned by English jurist William Blackstone, that has characterized this country’s approach to justice for two and a half centuries: "Better that ten guilty persons escape than that one innocent suffer."

Of course, this principle generally finds expression in the context of the criminal justice system, not wartime detention (and some lawmakers’ commitment to this principle was thin to begin with). But here’s a thought experiment: suppose that Guantánamo’s innocent included American Christians hailing from places like Bismarck or Colorado Springs—victims of mistaken identity or bureaucratic error. (It’s far-fetched but not impossible, given the government’s claim that it can hold U.S. citizens apprehended in the U.S. as enemy combatants.) Would these same Republican lawmakers insist that the innocent be held along with the guilty, in order to protect the rest of us? Or is detaining the innocent an acceptable price to pay only when the innocent are comprised of grim-faced, bearded Muslims hailing from places like Afghanistan, Pakistan, or Yemen?

Liza Goitein is Senior Counsel, Liberty and National Security Project, The Brennan Center for Justice. You can reach her by e-mail at goiteine at exchange.law.nyu.edu
Posted 6:05 AM by Guest Blogger [link]

The Impact of the 2010 Elections on the Impending Redistricting Process

Nate Persily

Much will soon be written about the effect of yesterday's elections on the 2010 redistricting process. Here are just a few random tidbits (of relevance both to law and politics) gleaned from the results.

1. Republicans have more state legislative seats than at any point since 1928.

2. The Alabama House and Senate, Indiana House, Iowa House, Maine House and Senate, Michigan House, Minnesota House and Senate, Montana House, New Hampshire House and Senate, North Carolina House and Senate, Ohio House, the Pennsylvania House, and the Wisconsin Assembly and Senate all have flipped from Democrat to Republican. See results and a map from the National Conference of State legislatures.

3. Although a few House races remain too close to call, it appears that since 2002 about 105 congressional seats (24% of total) have had a Republican and a Democrat representative at some point in the redistricting cycle. I don't know how this compares to previous cycles, but the number of "switches" over the course of the decade gives a sense as to how successful the 2002 gerrymanders were. As far as I can tell, one cannot say that incumbents in states with bipartisan or incumbent-protecting gerrymanders were safer than those in partisan gerrymandered states. I think this is true even accounting for the fact that "in-party" members might have been placed a greater risk than "out party" members in partisan gerrymandered states. In other words, although in some states partisans spread their supporters to thinly and therefore lost seats as a result, that was not uniformly true (compare Pennsylvania with Florida). Nor was it consistently the case that incumbent-protecting gerrymanders were equally successful (compare California with New York).

4. My best guess, however, from the lessons learned this redistricting cycle is that we should expect even greater incumbent protection in the upcoming redistricting as Republicans cement their gains, particularly in the Midwest where they will control the process, rather than seek out new opportunities. (As many have written, bipartisan gerrymanders are sometimes the most rational and successful form of partisan gerrymandering.) New opportunities will come their way, in any event, when the census reveals reapportionment totals that transfer seats from the Northeast and Midwest to the South and Southwest. Texas, for example, may gain four new congressional seats. (Note, however, Florida passed a redistricting initiative that, by its terms, attempts to constrain the use of partisanship or incumbency in the linedrawing process.)

5. Speaking of Texas, it is interesting to note that the Latino-majority district (Texas 23) that was redrawn following the Supreme Court's decision in LULAC v Perry has now switched back into Republican hands. I will be interested to see whether exit polls reveal that Latinos split their vote between Ciro Rodriguez (the incumbent) and Quico Canseco. Also, Solomon Ortiz appears to be losing the 27th Texas congressional district, of which Latinos comprise over 70% of the district's population.


6. William Jefferson's old district in New Orleans has returned to the Democrats, with Joseph Cao losing to Cedric Richmond. After the 2000 Census, this was a 64% African American population district (with 638,000 people in it). According to recent estimates from the 2006-2008 American Community Survey, only 431,000 people remain in the district (post-Katrina) and it is down to 57.6% African American. Without getting too far into the legal issues, Louisiana will prove to be one of the more interesting states when it comes to enforcement of the Voting Rights Act in the upcoming redistricting.

There is a lot more to say about the effect of these elections on redistricting -- for example, how the governors' races in certain states have now made partisan gerrymanders or impasses more likely. For now, the next relevant shoe to drop will be the apportionment estimates the census will deliver in about two months.

UPDATE: In the few minutes since I posted this, I have noticed Justin Levitt's very useful post, which breaks down the data even further.
Posted 10:48 AM by Nate Persily [link]

The Morning After

Gerard N. Magliocca

A young politician from the Midwest bursts on to the national scene with a stemwinder at the Democratic Convention. Despite serving only four years in Congress, he is nominated for President and becomes the leader of a popular movement that seeks to transform the role of government. He is denounced by Republicans as a dangerous socialist, and a backlash against his policies leads to a realignment against the Democrats that lasts for a generation.
Posted 10:12 AM by Gerard N. Magliocca [link]

Political Attitudes of Tea Party Supporters

Nate Persily

In anticipation of the reports tomorrow of the influence of Tea Party supporters on the election, I am placing up on the web results from a survey conducted by Steve Ansolabehere, Jamal Greene, and me over the past year. The survey, which is available here, included two waves, one in June-July 2009 (of about 1600 respondents) and another in June 2010, in which 1000 from the original sample were reinterviewed. The 2010 survey asked if the respondent supported the Tea Party. Given the length of the survey, the results are too difficult to summarize in a blog post. However, the break down of Tea Party supporters and non-supporters is available here. In the back-of-the-envelope regressions I have performed, it seems to me that the defining characteristic of Tea Party supporters is their disapproval of Obama. Although partisanship, fear of "big government", and concern about immigration are statistically significant variables predicting Tea Party support, disapproval of Obama remains a powerful factor even once all such variables (plus other demographic and ideological variables) are added.
Posted 11:32 AM by Nate Persily [link]