Wednesday, January 31, 2007

Audio of NSA Oral Argument

Marty Lederman

The U.S. Court of Appeals has made available an audio recording of today's oral argument in the NSA electronic surveillance case, at this link. The file, however, appears to be enormous, and my computer is telling me it will take hours to download. (If anyone has ideas on expediting the process, please let me know.)

[UPDATE: It appears that it is now available as an mp3 file, which should "only" take an hour or so to download.]

[QUASI-SUBSTANTIVE UPDATE: It was not a very active bench. Judge Gibbons is obviously very interested in the standing question, which was the subject of at least half the argument. No very telling clues as to the judges' thoughts on the merits or the state secrets privilege, except that when Greg Garre suggested that the government's statutory argument would not require a finding that the AUMF has implicitly repealed FISA, Judge Gilman indicated that he disagreed. Judge Gilman is correct -- the government's AUMF argument would, indeed, require a finding that the AUMF has implicitly repealed the "exclusive means" provision of FISA. See pages 4-5 of this letter.]

A Slice of Information About Corporate Law Firms and Legal Academia

Brian Tamanaha

The National Law Journal recently (Jan. 15, 2007) listed the ten law schools with the highest percentage of graduates hired by the top 250 firms in 2006:

Columbia Law School (69.6%)
University of Pennsylvania (68.2%)
University of Chicago (65.1%)
Harvard Law School (59.2%)
Duke Law School (58.8%)
NYU Law School (56.6%)
Cornell Law School (56.0%)
Stanford Law School (54.9%)
Univ. of Michigan (54.3%)
Univ. of Virginia (54.1%)

These numbers do not count graduates who work initially in judicial clerkships, so the actual percentage of graduates going to these firms is higher. [Yale was ranked 15th, with 46.8%, but many of its graduates enter clerkships.].

A similar table for non-elite law schools (outside the top 30 or so) would likely show that only 5% to 10% of graduates enter these firms, and for many schools the percentage is much lower.

How much do these new graduates earn, and how many hours do they work?

Several top New York law firms just announced an increase in the base pay for first year associates to $160,000, up from $145,000, and other firms indicated that they would match the increase.

A National Law Journal (Jan. 22, 2007) survey revealed that most top law firms paid year end bonuses in 2006 that ranged from $30,000 to $65,000. Several firms pegged bonuses to hours billed. For example, senior associates at DLA Piper who billed more than 2,500 hours could receive bonuses of up to $95,200. [An associate must work about 3,000 hours to bill 2,500 hours, at least for honest billing. Averaged over a period of 52 weeks, not allowing for vacations or holidays, that comes about 58 hours a week. Although 2,500 hours is extreme, it is not unusual for associates at these firms to bill upwards of 2,200 hours.]

First year associates at many top law firms this year will earn in excess of $175,000 (in base salary and bonus). Supreme Court Justices earn $184,400; Federal Court of Appeals Judges earn $159,100; Federal District Judges earn $150,000. Judges on the highest court in the State of New York earn $155,000.

Despite earning more than top judges, young associates at law firms complain that they are underpaid, citing the inhumane hours they are required to work, and the relatively modest sums they earn compared to the million (plus) dollars taken home by partners. Associates point out that 2006 was an excellent year for corporate law firms (with revenue up by 10% in some firms), and feel they should get more of the expanding pie. Partners don’t want to reduce their take, so firms are increasing the number of new hires--the top 250 firms now average 50 new hires each year--as the most direct way to generate additional revenue.

The result: A pyramidal structure in law firms with a large, wide base of young associates working 70 or so hours a week in offices with a thousand or more lawyers. Almost 80% of associates—4 out of 5—leave their firm within the first five years.

Some have argued that this system produces an irrational allocation of talent, time and money. Let’s assume that graduates from the top law schools (and top graduates from non-elite law schools) are the best and brightest in law. Yet much of the work assigned to associates in these firms, at least in the first few years, is mind-numbing drudgery—work that can be done by anyone who is smart and responsible (as many law graduates are). Firms hire top graduates because, as one partner put it: “Our clients expect us to have the highest quality, and they know it takes a competitive compensation.” A more cynical interpretation of what is going on is that law firms hire and churn through top (arguably overqualified) graduates to do mundane work mainly to justify the exorbitant fees firms charge their clients.

There are two obvious winners in this system: corporate lawyers and law schools.

Partners reap oodles of money (though a few resent that they earn less than bankers and CEOs). Associates are also winners—complaints aside, the money is hard to beat—but they pay a price for every dollar they take home.

Law schools are also winners. Tuition at elite private law schools is approaching $40,000. Add another $15,000 a year in expenses, and the cost of a law degree exceeds $150,000 (not counting opportunity cost). Students who borrow to cover their education pay much more. Despite this expense, getting a law degree still pays off handsomely for anyone in line for a corporate law job. For a $150,000 investment, a graduate can earn $800,000 to $900,000 in the first five years alone, and much more over time. Given this expected rate of return, it seems likely that tuition at elite institutions will continue to increase at a solid clip.

This way of thinking, however, forces graduates to take the corporate law firm route, at least for a few years after graduation, as a means to finance the cost of law school. Indeed, this factor probably already contributes to the high percentage of elite graduates currently going to corporate firms. Many students come into law school with different aspirations, and later decide to go to law firms to pay off their hefty loans. Loan forgiveness programs help alleviate some of this (only selected positions qualify), but the financial pressure is still formidable.

Beyond tuition, law schools benefit because many corporate lawyers donate generously to alma mater. The more they earn, the more they are able and willing to give. Law schools work on the gratitude, school pride, and competitive instincts of partners and associates to implore and induce them to contribute to endowments that, for the top schools, already total hundreds of millions of dollars (over a billion for several).

These are comfortable times for elite law schools and their faculties. Although professor pay is not known for private schools, a fair guess is that senior professors at elite law schools earn in the neighborhood of $250,000 (the figure given by Justice Breyer following an informal poll). A recent NLJ report revealed that a significant number of professors supplement their pay by handling cases or consulting on the side.

A few words can be said about the losers in this system.

Judges are not doing well. They do not work the insane hours of associates, but most work hard nonetheless, under trying circumstances. Many are highly accomplished. They play a central role within the system. When evaluated by just about any measure other than hours billed for corporate clients—merit, knowledge, value, experience—it is bizarre that leading judges earn less money than first year associates at corporate law firms.

Many students at non-elite law schools are not doing well. As indicated earlier, only the top 5% to 10% of graduates from non-elite schools obtain the choice corporate law jobs (with a much lower percentage at many schools). The remaining 95% of graduates will earn substantially less initially (many in the $50,000 to $70,000 range), and over their careers. These lawyers mainly serve individual clients or work in government positions. When adjusted for inflation, their pay has decreased in the last couple of decades (see Heinz, Urban Lawyers 2005), while loan payments have gone up.

Tuition increases at non-elite schools have kept pace with elite schools—lagging by a few thousand—so non-elite graduates pay almost the same amount for a law degree but have significantly lower expected earnings. Law school may still be a sound investment for these graduates, but not necessarily for those who had a solid earning potential before entering law school, and not for older students. There is another nasty twist. Many of the top students at non-elite schools—the ones with a decent chance to land corporate law jobs—get substantial scholarships (which schools use to lure highly credentialed students to boost their rankings), while those lower in the class often pay full price. As a result, the students who are likely to earn far less subsidize the education of the students who will earn a great deal more.

Non-elite law schools are in an uneasy situation. Driven by the rankings, they compete for students with scholarships. They compete to hire promising scholars, but lose out to the higher pay and more luxurious circumstances of the elite schools. Many of their students and graduates are unhappy when they realize that their job prospects are not as rosy as they had assumed coming in. Most of the graduates earn less and donate less to their schools, resulting in smaller endowments and heavy reliance on tuition for revenue. Non-elite law schools must raise tuition to compete in the rankings and keep up with top institutions, but earnings for graduates remain stagnant—an ominous combination of factors. Meanwhile, the gap between elite and non-elite widens as the former accumulate a huge resource advantage.

I don’t pretend to know what it all means for the future of the legal profession or legal academia, but one point is clear. A stark differentiation has developed in the legal profession, separating the corporate bar from everyone else, and this is matched by a correspondingly sharp differentiation of law schools. Think about it in loose sports terms: the top programs feed the major leagues, while everyone else feeds the minor leagues, with a few exceptions and relatively little movement across these two differentiated systems. Given this divide, it seems sensible to ask whether non-elite law schools ought to develop a different model of education that better matches the jobs and careers of their graduates.

An interesting natural experiment in the Senate: The Darryl Levinson thesis revisited

Sandy Levinson

There is an unusually interesting story in today's Washington Post, tellingly titled "For GOP, Discord in Dissent," on the growing tensions in the Senate with regard to expressing disapproval (or support) for Bush's escalation (or whatever you think it is). What I find most interesting are the following paragraphs:

Republican leaders had hoped to divide Senate opinion largely along party lines, to allow Bush to argue that any outright statement opposing his plan was
politically motivated partisanship. ...

Instead, rival measures continue to proliferate.... "Resolutions are flying like snowflakes around here," Specter said.

One group of ruminating Republicans is made up of the 20 GOP
senators who will face voters in 2008.... The Warner measure has attracted at
least three potentially vulnerable Republicans -- Sens. Susan Collins (Maine),
Norm Coleman (Minn.) and Gordon Smith (Ore.). Sen. Lamar Alexander (Tenn.), another Republican whose term will expire in two years, said he was speaking for many of his GOP colleagues in asserting, "I'm not persuaded that sending 21,500 troops into a civil war in Baghdad is a good idea, but I haven't found a resolution I can support."

So what we see is a wonderful natural experiment with regard to the two variables that Darryl (no relation) Levinson emphasizes as key to explaining the behavior of legislators of the president's own party (since it isn't any genuine concern for maintaining the institutional prerogatives of Congress, as Madison wrongly asserted): Their strong desire, on the one hand, to be good members of the party team, coupled with an equally strong desire to be re-elected. One can be certain that almost all of the Republicans (who besides Hagel?) would continue to act like sheep if Bush's numbers were substantially higher. What is interesting, of course, is that most Republicans (at least the ones not facing re-election) continue to rally round their guy. And, as I've indicated in earlier posts, it's equally interesting that Democrats, with the exception of Joe Lieberman, seem more united than ever before, presumably in part because that appears to be a good strategy for 2008. If Bush loses the support of enough members of his part to allow one of the "anti" resolutions (including the one supported by John Warner) to go through, then he will be even more miserable in his 720 remaining days in the White House, since the ultimate message of such a vote would be not only that they have lost faith in his policies (who hasn't?), but also that they no longer view him as possessing enough political capital to make life miserable for those who stray. It will also, I predict, doom the McCain campaign.

Were I advising Chuck Hagel, incidentally, I would be studying how to run for the presidency as an independent and looking for a Democrat who would make a good running mate on a "national unity, plain-speaking" ticket. 2008 could be an extraordinarily interesting political year.

Addendum: I also strongly recommend Fred Barbash's column in today's Post, "Why Would Congress Surrender?" It bewails Congress's "lassitude" with regard to seizures of ever-more-power by the Executive with regard to war. But Levinson provides a perfectly good answer to Barbash: Members of Congress just don't care that much about preserving institutional prerogatives, so it should be no surprise, even if it is a cause for lamentation, when members of the president's party acquiesce in claims of executive power or when they (like the opposition party) concentrate entirely on finding pork for their constituents in order to be re-elected. And, after all, the only resolutions with a chance of passage are "debating society" statements that "we wish to express our disapproval of the policy" rather than in fact to suggest that Congress is willing to take concrete action to stop it. Power goes to those who are willing to exercise it, as Dick Cheney knows so well. Few members of Congress actually are interested in exercising Congress's powers with regard to waging war.

Tuesday, January 30, 2007

Congress's War Powers

Marty Lederman

In several recent posts, I have written about Congress's power to enact legislation to affect the prosecution of the Iraq War. See here, here, here, here and here.

I thought it worth adding that I joined 22 other constitutional law professors in signing this letter to congressional leaders, in which we contend that the Constitution contemplates a robust role for Congress in defining the parameters of armed conflict.

In addition, Balkinization readers may want to take a look at the excellent testimony of two of my co-signatories, Professors David Barron and Walter Dellinger, from today's Senate Judiciary Committee hearing on the question. (Disclosure: I am currently working with David on scholarship on this topic.)

The testimony of the other witnesses, including separation-of-powers expert Lou Fisher of the Library of Congress, Professor Robert Turner, and former Assistant White House Counsel Brad Berenson, can be accessed from this page, which also includes statements of Senators Feingold and Leahy.

The hearing is well worth watching, but I have not yet been able to find the video online, such as at CSPAN.

Government Reply Brief in NSA/FISA Case

Marty Lederman

In the case being argued tomorrow in the U.S. Court of Appeals for the Sixth Circuit, the government has filed this reply memorandum in support of its argument that the court should vacate the district court injunction.

The government's reply provides ample reason, I think, why the government ought to dismiss its own appeal -- principally that it is now complying with the terms of the injunction below -- but I must confess that, for the reasons I've already explained, I still do not understand the government's argument for why the injunction should be vacated. "It would be untenable," the brief argues, "to leave the President subject to an ongoing district court injunction that is not subject to appellate review because of mootness." However, (i) if there is any mootness, it is only because the government itself has agreed to act in compliance with FISA, as the district court injunction required; and (ii) more importantly, if the government is committed to acting in accord with FISA going forward, then there is nothing "untenable" about preserving an injunction that requires no more than that. If, on the other hand, the government wishes to preserve the right to act in violation of FISA once again, then the injunction is serving a very real function, at least unless or until an appellate court reverses the district court on standing or state secrets grounds, or on the merits.

The brief speaks for itself, however, and perhaps I'm missing something important, so I encourage interested readers to read it themselves.

Tightening Control over the Federal Bureaucracy


The New York Times features a story about the President's January 18th, 2007 Executive Order, which gives the White House greater control over the guidance documents that agencies produce. These guidance documents, while not themselves binding law, nevertheless strongly influence the way businesses comply with federal regulations. The new executive order imposes greater restrictions on when and for what purposes the agencies can write these documents; and it requires that they clear these advisory documents with regulatory policy offices staffed by political appointees of the Administration. The purpose is to ensure that the guidance documents are consistent with the Administration's policy views.

The new Executive Order amends a previous order promulgated in 1993 by the Clinton Administration, which also sought to bring the bureaucracy more under the control of the White House. In fact, the Clinton Adminstration introduced a number of changes designed to ensure that federal agencies better reflected the President's policy (and political) agenda. And Clinton's innovations, in turn, built on decisions made in the Reagan Administration.

It is true that the Bush Administration's new rule will give political appointees more say over the guidance documents that are produced by scientists and other experts in the civil service. It will increase the control that the White House and its political concerns have over the bureaucracy. But this development is best understood as the continuation of a trend that goes back through several administrations, both Republican and Democratic.

As the federal bureaucracy has grown larger and its orders and advice more frequent and pervasive, the bureaucracy has also become increasingly independent of the political will of the White House. Presidents, realizing this, have sought to bring the bureaucracy under their control in various ways. The Reagan Administration tried to slow down bureaucratic initiatives it did not like. The Clinton Administration tried to harmonize regulations and require additional justifications. The difference in strategies makes some sense: The Reagan Administration ran against government regulation, and so tried to control it by impeding it. The Clinton Administration, by contrast, tried to impose various good government reforms on regulation, and, perhaps more important, tried to take credit for the work that the bureaucracy was doing, particularly after the Democrats lost Congress following the 1994 elections. Thus, the President would often make public statements and hold press conferences to announce decisions made in the bureaucracy, declaring them to be initiatives (and successes) of his Administration. Where Reagan sought to rain on regulation's parade and slow it down, Clinton sought to run ahead of the parade so that he could lead it. (For those who are interested, Dean Elena Kagan of the Harvard Law School wrote an important study in the Harvard Law Review in 2001 comparing the Reagan and Clinton Administrations' attempts to control the federal bureaucracy, and this post draws on her analysis.)

Interestingly, the Bush Administration has built on the Clinton model more than the Reagan model. Instead of trying to halt regulation, it has sought greater political control over advisory documents and required a greater showing that regulation addresses a genuine market failure. It seeks to use political appointees to act as gatekeepers for the content of advisory documents before they are published.

The reasons why Bush has followed Clinton more than Reagan flow from the rise of Bush's big government conservatism, a conservatism that happily uses all the levers of federal power to benefit his political allies, including most particularly business interests, who remain central to the Republican political coalition. The Bush Administration does not so much seek to stop regulation as to mold it in a decidedly business-friendly way.

It no accident that these revisions occur following the Republican loss of Congress in 2006; both Congress and the President have varying degrees of influence over the bureaucracy; the Administration, faced with a Congress of the opposite party, is trying to ensure that its influence remains stronger. But it is likely that these changes would have occurred even if the Republicans retained Congress, because these changes are part of a longer trend of Presidents finding ever new ways of asserting control over the federal bureaucracy, and, more to the point, they mesh well with Bush's big government conservatism.

Critics may assume that the use of political appointees as gatekeepers is consistent with the Administration's "war on science." There may be something to that, but here is a better way to look at it. Scientific expertise is a source of authority for the bureaucracy; it justifies its independent judgment. Such independent judgment is precisely what Presidents seek to curb in asserting control over the bureaucracy. There is no one way to do this, of course. The Clinton Administration sought to require greater justification for bureaucratic policy initiatives with the idea of ultimately taking credit for the bureaucracy's best ideas. The Bush Administration has built on the Clinton model to some extent, but also tried a different approach, seeking to hew bureaucratic judgment more closely to the White House's political judgment. While both models assert political control over bureaucracy, the Bush strategy treats expertise more like a threat to Presidential authority than the Clinton model did. That should not be surprising. The "permanent campaign" of the Clinton Presidency has morphed and metastasized into the basic operations of governance in the Bush Administration. Critics often charge that the Bush Administration does not care much about policy debate, only about politics. The Bush Administration's distinctive solution to the conflict between the President and the bureaucracy reflects this larger tendency.

Monday, January 29, 2007

Update on the Sixth Circuit Litigation Challenging the NSA's Terrorist Surveillance Program

Marty Lederman

This Wednesday, a panel of the U.S. Court of Appeals for the Sixth Circuit, sitting in Cincinnati, will hear oral argument in ACLU v. NSA, one of the principal cases challenging the legality of the National Security Agency's NSA's "Terrorist Surveillance Program." The panel will consist of Judges Alice Batchelder (appointed 1991), Ronald Gilman (appointed 1997) and Julia Smith Gibbons (appointed 2002). The United States will be represented by Deputy Solicitor General Greg Garre. The ACLU will be represented by Ann Beeson. Garre and Beeson are both superb attorneys and oral advocates. (Lyle Denniston has more on the procedural moves in the case -- including a dispute over the government's refusal to file certain documents with the court -- here. And see Adam Liptak here: "In ordinary civil suits, the parties’ submissions are sent to their adversaries and are available to the public in open court files. But in several cases challenging the eavesdropping, Justice Department lawyers have been submitting legal papers not by filing them in court but by placing them in a room at the department. They have filed papers, in other words, with themselves.")

[Disclosure: I am an amicus in the case, on a brief arguing that the TSP violated FISA and that the President does not have constitutional authority to ignore FISA.]

Of course, two weeks ago, the Administration announced that the President has "determined not to reauthorize the Terrorist Surveillance Program when the current authorization expires," and that the Department of Justice will now submit its surveillance applications to the FISA Court for approval under FISA.

What does this development portend for the current case?

Let's recap where we are.

Last August, Judge Taylor found that the TSP was unlawful, and enjoined its continued implementation. In particular, the NSA was enjoined from engaging in electronic surveillance except as authorized under FISA. That decision was stayed pending the Sixth Circuit appeal.

But now, it appears that the NSA is complying with the injunction. If the Administration's account is to be believed, NSA now is conducting electronic surveillance only in accord with FISA, i.e., only after demonstrating to the satisfaction of the FISA Court that there is probable cause to believe (i) that the target of the interceptions is a foreign power or an agent of a foreign power, and (ii) that each of the facilities or places at which the electronic surveillance is directed is being used, or is about to be used, by a foreign power or an agent of a foreign power.

This development doesn't necessarily moot the appeal, any more than compliance with an injunction ever moots an appeal challenging that injunction. If the government were to prevail on this appeal and in other related cases, then presumably it would no longer be bound by legal orders requiring compliance with FISA. And the government's continuing legal position is that it does not have to comply with FISA; therefore it has some interest in continuing its appeal.

But the government has filed an unusual memorandum with the court of appeals, in essence arguing that the government's recent compliance with FISA eliminates the controversy between the parties.

If that were stictly true -- if the government were now committed to FISA compliance going forward -- it could simply dismiss its appeal, because the underlying injunction does not require anything more than such statutory compliance.

But the government isn't dismissing its appeal, because it does not want to be bound by the injunction -- that is, it wants to retain the option of departing from FISA again if and when the President sees fit to do so. As I wrote above, that's perfectly fine, and not out of the ordinary, even if I disagree with the merits of the government's position.

What is very odd, however, is that the government is now arguing that because of its compliance with FISA, the court of appeals should vacate the district court injunction.

According to the Department of Justice, there is "no longer any live genuine controversy to adjudicate." Well, that would be true, if the government were committed to FISA compliance going forward -- in which case the government could simply live under the injunction, and withdraw its appeal. But the government understandably wishes to preserve its future prerogatives to depart from FISA, which is why it has not withdrawn its appeal.

What, then, is the government's argument for why the injunction should be vacated? After all, parties generally do not have a right to have an injunction against them vacated simply because they begin to abide by it. Whether the "extraordinary" remedy of vacating an injunction should be granted, the Supreme Court has held, is a question principally determined by "whether the party seeking relief from the judgment below caused the mootness by voluntary action." U.S. Bancorp, 513 U.S. at 24. And here, the government inded has, by its own account, voluntarily complied with FISA, i.e., has done what plaintiffs requested and what the injunction demands. "To allow a party who steps off the statutory path to employ the secondary remedy of vacatur as a refined form of collateral attack on the judgment would--quite apart from any considerations of fairness to the parties--disturb the orderly operation of the federal judicial system." U.S. Bancorp, 513 U.S. at 27. (Indeed, even apart from compliance with an injunction, the general rule is that voluntary cessation of challenged conduct in response to a lawsuit challenging such conduct does not even moot a case, unless subsequent events make it "absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur." Friends of the Earth, 528 U.S. at 189. There is no such assurance here, of course, that the government will not resume the disputed conduct if not judicially compelled to refrain from doing so.)

I must confess that I don't quite understand the government's argument to the contrary. It claims on page 10 of its memo that its compliance with FISA was not voluntary but was instead the result of the action of an "independent judicial body," the FISA Court. See also page 13 ("the critical event was the product of an intervening act of a corrdinate branch of government"). But of course the FISA court has simply granted FISA orders sought by the government itself, and pursuant to a request from the government for such orders. (That's the way FISA works -- the government seeks an order, and the FISA court decides whether to grant it. The FISA court does not initiate proceedings on its own.) Moreover, that is precisely the remedy plaintiffs were seeking -- to require the government to seek and obtain orders from the FISA court finding probable cause that FISA's standards are met before engaging in any electronic surveillance. I should add that the FISA court orders in question presumably are only with respect to the particular electronic surveillance requested by the government in a particular case. The government's voluntary representation that it will not engage in such surveillance in the future -- i.e., in all other cases going forward -- except in accordance with FISA is not, of course, a representation made or ordered by the FISA court. It is the Administration's own doing. The letter is signed by the Attorney General, not the FISA Court. (For the ACLU's response to the government's request for vacatur, see pages 12-16 of its recently filed brief.)

The government's memo also appears to argue (page 14) that the injunction should be vacated because the district court's opinion addressed "extraordinarily sensitive questions touching upon issues of statutory construction and constitutional law, separation of powers, and, ultimately, Presidential authority in a time of war." I don't understand why that's a reason to vacate the injunction. The district court opinion has no stare decisis effect -- even other district judges in the Eastern District of Michigan are not bound to follow it. It will either be persuasive to other courts when similar questions are litigated in the future, or it won't be. And to the extent the government wishes to create better, more binding precedent in its favor, it can seek reversal on the merits in the court of appeals.

For these reasons, this non-objective observer predicts that the court of appeals will reach the "merits," at least of the government's state-secrets privilege claim, if not also of the statutory and constitutional questions in the case.

A New Idea from the Bush Administration: Blot out the Sun


The Sydney Morning Herald reports that the United States, long resistant to international attempts to control greehouse gases, has now proposed that instead we could just blot out the sun.
The US response says the idea of interfering with sunlight should be included in the summary for policymakers, the prominent chapter at the front of each panel report. It says: "Modifying solar radiance may be an important strategy if mitigation of emissions fails. Doing the R&D to estimate the consequences of applying such a strategy is important insurance that should be taken out. This is a very important possibility that should be considered."

Scientists have previously estimated that reflecting less than 1 per cent of sunlight back into space could compensate for the warming generated by all greenhouse gases emitted since the industrial revolution. Possible techniques include putting a giant screen into orbit, thousands of tiny, shiny balloons, or microscopic sulfate droplets pumped into the high atmosphere to mimic the cooling effects of a volcanic eruption. The IPCC draft said such ideas were "speculative, uncosted and with potential unknown side-effects".

The US submission complains the draft report is "Kyoto-centric" and it wants to include the work of economists who have reported "the degree to which the Kyoto framework is found wanting". It also complains that overall "the report tends to overstate or focus on the negative effects of climate change". It also wants more emphasis on responsibilities of the developing world.

Come on, what's more important: preserving the profit margins of companies whose products produce emissions that cause global warming, or a little sunlight? The question answers itself. If you want more sunlight, get yourself a oil burning lamp.

The Guardian suggests that U.S. proposal is yet another example of the Bush Administration's fondness for smoke and mirrors, while others might insist that the proposal stems from the Administration's general preference for keeping people in the dark as much as possible.

I happen to think, more charitably, that it flows from the Bush Administration's penchant for biblically friendly science.

There's plenty of biblical precedent for the U.S.'s idea: In fact, it's God approved. God blotted out the sun as one of the ten plagues against the Egyptians (Exodus 10:21-23). There was darkness at noon at Jesus's Crucifixion (Matthew 27:45; riffing off of Joel 2:10). In fact, darkening the sun is a frequently mentioned Divine strategy, just see Amos 8:9, Joel 3:15 and Micah 3:6.

Of course, there is a potential downside with the Administration's plan. Blotting out the sun may bring on Judgment Day, as Acts 2:2 reminds us:

The sun shall be turned into darkness, and the moon into blood, before the great and notable day of the Lord come

(Here again, interestingly, the New Testament borrows from the Prophet Joel, in this case Joel 2:31; see also John's prediction in Revelations that when the sixth seal is opened "the sun became black as sackcloth of hair, and the moon became as blood" (Rev 6:12) See also Rev. 16:10 (riffing off of Exodus 10:21)).

But I think we should go for it, don't you? Sure, there may be some unexpected side effects. But I'm pretty certain the Administration has planned everything out thorougly, as they have with so many of their other policies. And, even if things go a little bit wrong, it can't be any worse than the Administration's plan to invade Iraq.

Sunday, January 28, 2007

High School Sports and Presidential Elections

Mark Graber

Mepham High School selected members of the basketball team on the basis of their performance on the basketball team the year before and their performance in a series of basketball games and drills held during tryouts. The system, used in almost every other high school, was obviously imperfect and left a good deal of room for some favoritism and kids having hot (or cold) spells. Still, I think general agreement existed at Mepham when I was there that the vast majority of kids on the varsity basketball team were among the best basketball players in the school.

Mepham High School selected members of the student government on the basis of competitive elections. Past performance in student government played no role in this selection. If memory serves me correctly, neither the president of the senior class nor the president of the student government during my senior year had played a major role in student government or any other similar institution while in high school. Certainly, no one campaigned for the office on basis of their demonstrated past capacity to govern. Rather, what we heard were promises to do better than the incumbent administration. Similar campaigns, I gather, annually take place in the vast majority of American high schools.

The adult world seems little different from Mepham High School. Professional coaches choose members of their teams on the basis of how well aspirants have played the sport in the past and their performance in a series of games and drills during tryout camps. We select our political leaders, most notably the president, in ways that more resemble high school student government elections. Looking in particular at the Democratic Party frontrunners, past efforts to govern seem irrelevant. Barack Obama may be articulate, but he has done no more in the past four years than any other Senator. Hillary Clinton seems to have spent her first term desperately trying to avoid responsibility for advocating or opposing any major legislation. Russ Feingold of Wisconsin is arguably one of the few young Democrats who has actually attempted to champion and oppose policies. If this were a basketball tryout, he’d make the team. But as we are talking about a presidential election, actual efforts to govern seem the same disqualification they often were in high school. The upside is that because not every Democratic in the Senate is running for president, a few might actually make some effort at serious governance. But we should no more expect Obama and Clinton to play leadership roles in the Senate than we should expect the politically ambitious high school juniors in our communities to exhibit leadership in the student government as a springboard for their campaign this spring for senior class president.

Perhaps this is a reasonable way of selecting political leaders. At least during my senior year, the senior class president and head of the student government did a far better job than did the basketball team. Still, the progressive in me thinks that we might learn more about aspirants for the presidency by watching them on the floor of the Senate than watching them on the campaign trail raising money. Perhaps, mirroring Sandy Levinson, I should begin the following countdown: 723 days until anyone presently in serious contention for the Democratic nomination makes a serious effort to govern.

723 days of Dick Cheney

Sandy Levinson

I have, of course, been counting down the days remaining in the presidency of George W. Bush. But just as serious--and, according to some sober observers, even more serious--is the fact that there are also 723 days remaining in the tenure in office of the most important/disastrous vice-presidency in the history of the United States. There is no one who comes close to Cheney. Maureen Dowd began her column in Saturday's New York Times as follows:

Dick Durbin went to the floor of the Senate on Thursday night to denounce the vice president as “delusional.” It was shocking, and Senator Durbin should be ashamed of himself. Delusional is far too mild a word to describe Dick Cheney. Delusional doesn’t begin to capture the profound, transcendental one-flew-over daftness of the man.

Has anyone in the history of the United States ever been so singularly wrong and misguided about such phenomenally important events and continued to insist he’s right in the face of overwhelming evidence to the contrary?

Dowd sometimes overwrites, but here I think she is spot on. He is a menace to the republic, which means to all of us (and our children and grandchildren). But the Constitution that gives George W. Bush a leasehold to the White House until Jan. 20, 2009, also gives Mr. Cheney a leasehold to the former Observatory (assuming that he spends any time there), and is every bit as bad.

And, of course, it is no small matter that Mr. Cheney remains vice president. As Jack points out in his own most recent posting, Cheney is absolute impeachment insurance, unless the impeachers decide to take on Bush and Cheney together at the same instant and thereby appear to be paving the way for an unconstitutional coup inasmuch as the Democrats would take over the White House without having to win an election, given the current Succession in Office Act and the resolute silence of Nancy Pelosi and Robert Byrd about the wisdom of repealing it on the best of all grouds: It is not only unconstitutional, but it is also dreadful public policy.

I have, for quite a while, been predicting that Karl Rove would engineer Cheney's resignation (for "medical reasons," of course) , in order to try to avert the coming bloodbath within the Republican Party over the succession. But even if that were possible--and the Party may be too torn now to accept an attempt by Rove to crown a successor--it assumes Cheney's cooperation. I suspect that Cheney is every bit as narcissistic as Bill Clinton in this regard: One of the things that accounted for Clinton's riding out his own troubles, beyond the monumental ineptitude of the Republicans, is that every person in the country knew that the only way he would leave the White House would be in a body bag. The idea of serving his country or his party by resigning, which in retrospect would clearly have been the best option once it was clear that he did indeed commit perjury by any common-sense definition, literally never occurred to him, and I suspect that it is equally "unoccurrable" to Dick Cheney, who I suspect respects Bush only little more, if at all, than most of the people on this list. I suspect he sees himself as the indispensable man and will do anything to maintain his office.

In any event, the office of the vice-presidency itself may well be a constitutional stupidity, and the inability even to imagine dismissing someone whose ascent to the Oval Office would be, according to almost any sane abserver, a national and world catstrophe, is just more evidence that we are ill-served by our present Constitution.

Saturday, January 27, 2007

Redesigning the Presidency, Part II


In his Nation piece opposing impeachment, Sandy argues that
this might be the perfect time to hold a serious national conversation about whether we should have an alternative to the cumbersome impeachment process to remove an incompetent President. The reason, paradoxically, is that because of our very political divisions, it is impossible to know who will be President in 2009. The stars are aligned for a truly bipartisan discussion, among serious Democrats and Republicans alike, over the extent to which we are well served by the eighteenth-century Constitution, since members of both parties are behind a "veil of ignorance" as to who would benefit from any changes. Even the most partisan among them have every incentive to think of the national interest, since it is impossible to discern what the party's interest will turn out to be.

Actually, we do not face anything like a veil of ignorance. Rules that would make presidential expulsion easier would be most dangerous for Presidents during a time of divided government, when the other party controls Congress. Given the Democrats' modest majority in the House and the fact that more Republican than Democratic Senate seats will be contested in 2008, there is good reason to believe that the Democrats will retain at least one branch of Congress in 2008 and probably two. Thus, if the Republicans win the presidency in 2008, there is a good chance that they will face an opposition Congress. Hence they would probably have little interest in making it easier for Democratic majorities to oust their next successful presidential candidate.

Put another way, what to do about incompetent presidents does not involve one issue, but three issues. The first, which Sandy identifies in his essay, is the standard of judgment for removing a President. Currently it is high crimes and misdemeanors, but it could be changed to maladministration, or incompetence, or mere political preference. The second issue is the level of support necessary for a successful motion in the branches of Congress. Currently the Constitution requires a majority vote in the House, and a two-thirds vote in Senate. The third issue is the remedy for a successful vote for expulsion. Currently the consequence of a successful vote is removal of the President, with the Vice-President assuming office, or, if there is no Vice-President, the next person in the statutory line of succession.

These three issues greatly complicate the political calculations for possible reform proposals; they suggest that we will rarely, if ever, work under a veil of ignorance, unless, that is, we make the new set of rules operative only a generation from now.

Even under a maladministration standard, it's not clear that Democrats would try to remove Bush from office if the alternative were Dick Cheney. In this case, the next in line is a political ally of the President who would likely continue many of his bad policies. To be sure, sometimes Vice-Presidents are selected from the opposite wing of the Party to balance the ticket, but the last three presidencies (Bush I, Clinton, Bush II) suggest that ideological ticket balancing may be less common.

Removing Cheney as well as Bush would, under current circumstances, lead to a Democratic takeover of the Presidency. That, however, is because (in my opinion) the current succession in office act is probably unconstitutional-- only officers in the executive branch, and not members of Congress, should be in line to succeed the President. So to reform the Presidency, we would also have to reconsider the line of succession, which is partly constitutional and partly statutory.

Instead of the existing remedy, two possibilities would be (1) new popular elections for the President or (2) nomination by the caucus of the President's party in either the Senate or the House, followed by confirmation by both Houses of Congress. My guess is that Congressmen and Senators would prefer (2) over (1) because it would give them more power. Here again we don't have a veil of ignorance, but for a different reason than party affiliation-- Most Congressmen and Senators know that they will be Congressmen and Senators in the near future. Thus, any constitutional proposal coming out of Congress would probably be tilted toward enhancing Congressional control over the President.

The remaining issue is what level of support would be required to expel the President. Here Congress's institutional interest in increasing control over the Presidency would be balanced by the fear that a Presidency of a minority party would always be in danger of being jettisoned by a Congressional majority of the opposite party. Hence Republicans (in today's political configuration) would probably resist reducing the margin for expulsion. That margin is currently a mere majority in the House and two thirds in the Senate. I could imagine it going down to 60 votes in the Senate-- the de facto standard for ordinary legislation. But I would doubt Republicans would want to reduce it to a simple majority. (One might think that a Congressional minority might accept a lower threshold if they were guaranteed the right of nomination of the President's replacement, but this overlooks the fact that there would be considerable pressure by the Congressional majority to choose someone acceptable to the majority in order to win confirmation.).

Friday, January 26, 2007

The Master of Mount Misery

Scott Horton

"No man can put a chain about the ankle of his fellow man without at last finding the other end fastened about his own neck."

- Frederick Douglass, Speech given on Oct. 22, 1883, in Washington, D.C.

American literature of the nineteenth century evolved some distinct genres, and among them was the rags-to-riches tale which seems somehow a hallmark for the American character of this period. In these stories, an individual born to modest means and humble social status achieves wealth and fame through perseverance and strength of character. Apart from this genre, we also have autobiographies which seem to chart a parallel trajectory. In the period of the early republic, one series of autobiographical writings seems to tower above all the others: the life story of Frederick Douglass. It is not a rags-to-riches story in a material sense. It is an account of emancipation – Douglass' flight to freedom in the north, but more importantly, his exorcism of the spirit of slavery and entry into a world of great thoughts and causes. It is the story of a great soul. The period produced very few writings of equal power.

Among the most poignant passages of Douglass' narrative is his account of brutal mistreatment at the hands of Edward Covey. Douglass was owned by a wealthy Maryland family, and he spent his childhood between their town residence in Baltimore and a farm on the Eastern Shore in St Michael's. Early in 1834, Douglass writes that he was sent to Edward Covey, the owner of a near-by property known as Mount Misery. Covey was known in the community as a "slave breaker," a trainer for high-spirited and uncooperative slaves. While on the Covey farm, Douglass performed agricultural labor from dawn to dusk. Throughout this time he and his fellow slaves were spied upon by Covey, who would leap out and begin to beat any slave who took an unpermitted rest break.

Not long after he arrived, Douglass was disciplined for not tending after a team of oxen. Thereafter, he says he was whipped continuously and the cumulative effect of captivity, strenuous labor and beatings indeed began to make him feel "broken." He described how on an intensely hot summer day, he suddenly felt overwhelmed and fell to the ground, unable to continue to work. Covey was on the scene quickly, kicking and beating him – but Douglass refused to rise and resume working. He fled back to his master's farm, seeking shelter, which was denied. He prepared for the worst, but suddenly a different spirit settled upon him. "At that moment - from whence came the spirit I don't know - I resolved to fight," Douglass writes. "I seized Covey hard by the throat, and as I did so, I rose." Covey and Douglass fought for almost two hours until Covey finally gave up, telling Douglass that his beating would have been less severe had he not resisted. "The truth was," said Douglass, "that he had not whipped me at all." In later life, Douglass recounted this incident frequently, and he derived his maxim from it: "Men are whipped oftenist who are whipped easiest."

Douglass dated his resolve to secure his own freedom by whatever course necessary from this point. And indeed, it was clear that Douglass was prepared to risk his life to secure it. Even for raising his hand against Covey, he could have been put to death under Maryland law at the time. It seems likely that he was saved by Covey's arrogance, and his refusal to admit publicly that a slave under his custody had stood up to him.

As Douglass said, Covey thought himself a man of might and importance. He believed that his brutality, his chains and his whips gave him power over his fellow humans and importance in the world. But in the end it was clear that Covey was more enchained than the black men he held captive; morally and spiritually, he was the "broken" man, not Frederick Douglass.

Two summers ago, I found myself visiting a friend on the Eastern Shore of Maryland, in St Michael's. In the course of a discussion, I learned that Mount Misery has found a new master. The successor in title to Edward Covey is named Donald Rumsfeld. The two share more in common than simply being master of Mount Misery; both forged their own chains through lives marked by inhuman treatment of those they held captive.

There are times when I am convinced that the muse of history is playing a game with us. This is one.

Maher Arar, what are you going to do with all that money? Well, I'm not going to Disney World


The Canadian government has given Maher Arar a settlement worth 8.9 million U.S. dollars. Arar, a Canadian software engineer, was detained by American officials on the basis of false statements made by Canadian police. He was deported to Syria where he was repeatedly tortured. A Canadian judicial commission exculpated Arar and recommended compensation. The settlement includes payment of his legal expenses.

One thing Arar won't be able to do with that 8.9 million is travel by plane to the United States. Arar is still on the American government's terrorist watch and no fly list.

And that makes perfect sense: We can't have people who have been wrongfully accused of being terrorists and sent off by American officials to be tortured running around the United States telling their stories. It might undermine people's confidence in the War on Terror. And besides, if he really wants to commit terrorist acts in the United States, he can always rent a car and drive across the border like everybody else.

Thursday, January 25, 2007

Dick Cheney = Baghdad Bob


"Bottom line is that we've had enormous successes, and we will continue to have enormous successes."

-- Dick Cheney, January 24, 2007

"The Americans are not there. They're not in Baghdad. There are no troops there. Never. They're not at all."

-- Muhammad Saeed al-Sahhaf, aka Baghdad Bob, April 7, 2003

Reproductive Rights Blog


Caitlin Borgmann, who teaches at CUNY School of Law, has started the Reproductive Rights Prof. Blog, which covers reproductive rights issues both within the United States and internationally.

A cost of federalism

Sandy Levinson

There is much to be said in favor of federalism--its promotion of diversity and the ability of states to serve as fabled 'little laboratories of experimentation." there is also the attraction of the principle of "subsidiarity," by which decisions should be made at the lowest level possible, not least becasue of the opportunity it will give to people to participate in actual decisionmaking in a way that is functionally impossible in a national government ostensibly representing 300,000,000 people. But, even putting such ominous modes of "diversity" as chattel slavery and subsequent segregation to one side, there is another obvious problem with federalism: States, like individuals, have no particular incentive to take the "national interest" into account when trying to maximize their own interests. This obvious fact is the principal defense of a post-New Deal strong national government, which exists, under this perspective, in substantial part to serve as a co-ordination mechanism designed to overcome the well-known "prisoner's dilemma" problems that come from fragmented decisionmaking by entities with competing interests.

So this is a long (and perhaps long-winded) introduction into a story in today's NYTimes by Adam Nagourney on the havoc being created, with regard to the 2008 presidential campaign, by the decisions of big states to move up their primaries, in order to try to play a greater part in the process of selection. Thus he writes

As many as four big states — California, Florida, Illinois and New Jersey — are likely to move up their 2008 presidential primaries to early next February, further upending an already unsettled nominating process and forcing candidates of both parties to rethink their campaign strategies, party officials said Wednesday.
The changes, which seem all but certain to be enacted by state legislatures, mean that the presidential candidates face the prospect of going immediately from an ordered series of early contests in relatively small states in January to a single-day, coast-to-coast battlefield in February, encompassing some of the most expensive advertising markets in the nation.
The changes would appear to benefit well-financed and already familiar candidates and diminish the prospects of those with less money and name recognition going into such a highly compressed series of contests early next year.

It seems clear beyond doubt that this is not good news for the country at large. We would be far better off if the campaign could procede in some reasonable order, over several months, so that voters could actually learn more about the candidates' strengths and weaknesses, not to mention the problems with limiting the effective race to the extremely monied. But, of course, none of the four states in question has any incentive to be selfless. This is precisely why we need centralized co-ordinating authority.

For once, I don't blame George W. Bush for this most unfortunate development, though I do blame the blind faith in either "the market" or "federalism" and its tendency to overlook weaknesses in its single-minded emphasis on the strengths. In any case, it's unclear that anything can be done. It might even raise constitutional problems if Congress argued that it had power to regulate the primary schedules of ostensibly "private" political parties. And, clearly, the national parties themselves do not have the power to act, which would mean, among other things, cracking down on New Hampshire's obsession with keeping its privileged position regardless of "desert." So, once again, structures are central to outcomes.

In any event, it appears that we will know within thirteen months whether it will indeed be Hillary or Barack (or, my own favorite at this moment, Al), unless, of course, they split the vote and then we can look forward to a six-month hiatus waiting for the Convention.

Wednesday, January 24, 2007

Darry Levinson thesis once more

Sandy Levinson

I note that the vote in the Senate Foreign Relations Committee to express oppostion to the escalation/buildup/expansion/surge was 12-9, with only Chuck Hagel voting with the 11 Democrats in support. So the power of the President over members of his own party continues to dominate over many other considerations. It boggles the mind to believe that 90% of national Republicans support Bush's policy. Similarly, for what it is worth, it's hard to believe that every single Democrat opposes it. (They, of course, have their representative in Joseph Lieberman, but Lieberman appears to be completely isolated, at least among Democrats, in this regard.) It remains to be seen whether the great debate about to take place on the floor of the Senate will be much other than a purely party-based debate.

As an aside, I note that Arlen Specter continues to be a loyal lackey of his Administration, though one wonders how he might be voting if, like Norm Coleman, he were up for re-election in 2008. Coleman was one of the five Republicans who voted to end the filibuster against increasing the minimum wage. I assume this reinforces the Mayhew thesis that a desire to be re-elected takes precedence over everything else for most members of Congress. (And Coleman is one of the co-sponsors of the toned-down resolution of disapproval of the Bush policy.) This is not to suggest, incidentally, that everyone is voting simply according to self-interested calculation. I don't this explains James Webb or Joseph Lieberman, for example.

So Bush continues to get remarkable loyalty from his satraps in Congress. What will be interesting, as I have suggested previously, is whether he will reciprocate that loyalty when they need something from him. The Scotter Libby trial is already suggesting that the Administration is more than happy to throw people over the cliff in order to protect their own interests.

Starbuck as Ahab's Enabler

Sandy Levinson

Yesterday's New York Times included a column by Nicholas Kristof that concludes as follows:

Yet the single best guide to Mr. Bush’s presidency may be “Moby-Dick.” Melville’s book is, of course, about much more than Captain Ahab’s pursuit of the white whale — a “nameless, inscrutable, unearthly” symbol of all that is dark and unknown in the world.

Rather, it is an allegory about the cost of obsession. Ahab has a reasonable goal, capturing a whale, yet he allows this quest to overwhelm him and erode his sense of perspective and balance. Ignoring warnings, refusing to admit error, Ahab abandons all rules and limits in his quest.

Ahab finally throws his pipe overboard; he will enjoy no pleasures until he gets that whale. The fanaticism becomes self-destructive, eventually destroying Ahab and his ship.

To me at least, Melville captures the trajectory of the Bush years. It begins with a president who started out after 9/11 with immense support at home and abroad and a genuine mandate to fight terrorism. But then Mr. Bush became obsessed by his responsibility to prevent another terror attack.

This was an eminently worthy goal, but Mr. Bush abandoned traditional rules and boundaries — like bans on torture and indefinite detentions — and eventually blundered into Iraq. And in a way that Melville could have foretold, the compulsive search for security ended up creating insecurity.

I think, as do several letters-to-the-editor in today's Times, that we should take very seriously the comparison to Ahab--especially as we recall that Mr. Bush still has 727 days remaining in office--but we should recall that Moby Dick is not in fact a one-character (or two, if one counts the whale) novel. A key figure is Starbuck, the first mate. A fine, decent fellow, the characterological opposite of Ahab, he is, nonetheless, fatally flawed (quite literally, as it turns out) by his unwillingness to engage in efficacious action upon his realization that Ahab presented what we might call a "clear and present danger" to the survival of the good ship Pequod. His loyalty to his captain--dare we call him the "Commander-in-Chief"?--takes precedence over everything else, and we know what will happen as a result. But worse, in a way, is that Starbuck himself knew in advance what the consequence of blind loyalty to Ahab would be, and it didn't stop him. The fine and thoughtful New Englander turned out to be the equivalent of a "good German," who surely didn't share the crazed ideology of his captain but, nonetheless, believed, in effect, that "orders must be obeyed."

Perhaps things are not so dire in the US as they were on the Pequod, but, of course, one never knows, especially since Bush continues to hint at a military attack on Iran. So the real question raised by Kristof's fine column is what we (and, more to the point, the various Starucks in Congress and elsewhere) will do in response to the American Ahab. In any event, the point is that if Starbuck had acted in time, even Ahab (in collaboration, of course, with the goaded Moby Dick) could not have destroyed the ship.

Bickelian or Bully?


Partly in response to my earlier post, Eric Posner and Adrian Vermeule make the intriguing argument that the Bush Administration has acted entirely appropriately by avoiding judicial determinations that would rebuke it for its domestic surveillance program and its treatment of Jose Padilla. The Bush Administation, they argue, has only acted according to the "passive virtues" that Yale Law professor Alexander Bickel famously argued were particularly praiseworthy behavior for courts.
On this view, the administration is acting in the best traditions of Bickel, Jackson and the Court itself. By avoiding a final test of its power to detain citizens like Padilla, or to engage in warrantless surveillance, the administration avoids creating precedent when the political winds are blowing against it; that sort of precedent would lie around like a loaded gun to be used against the executive in the future. Mooting the issues leaves the law of executive emergency powers in the state of twilight uncertainty that Jackson praised in Korematsu, and allows the administration to fight another day in better circumstances -- the same plan that the Court followed after Reconstruction and after Brown v. Board. What's sauce for the judicial goose is sauce for the executive gander.

If the Bush Administration had behaved as a Bickelian court, it would be more deserving of praise. The problem with the argument, however, is that it has not.

A Bickelian court estimates the likely public and institutional reaction if it acts in a certain way, and, if the situation looks sufficiently ominous, it does not act in the first place, or, if it acts at all, does so only in a limited way on procedural grounds. It does not state that it will strike something down in litigation involving great public controversy and then, faced with mounting criticism from public opinion and the political branches, suddenly announce that its previous decision was inoperative. To do that would diminish the Court's political capital and squander its credibility.

In 1956, for example, the Court in Naim v. Naim did not boldly announce that laws prohibiting interracial marriage violated Brown v. Board of Education, and then, faced with the threat of outright disobedience by the Virginia Supreme Court, rescind its previous interpretation of the Equal Protection Clause. Rather, it avoided taking a position on the merits, eventually dismissing the case for want of a substantial federal question (which was, technically speaking, not true.). It then waited eleven years to strike down Virginia's law in Loving v. Virginia in 1967, when public sentiment was more favorably disposed.

Bickel's point was that discretion is often the better part of valor for an institution that, unlike the Executive or Congress, has neither the power of the sword nor the purse; hence the Court should sometimes not act at all, or act only through indirection.

If the Bush Administration had acted like a Bickelian court, it would have gathered its legal and political advisors together and asked, "if we engage in domestic surveillance of American citizens in violation of FISA, or if we throw an American citizen in a military prison and deny him basic Bill of Rights protections, will we likely face undesirable consequences that would hamper the Executive's ability to prosecute the War on Terror in the future?" If the answer to that question is yes, then a Bickelian executive would not have violated FISA in the first place and it would have indicted Padilla in the criminal justice system to begin with rather than denying him Bill of Rights protections and abusing him through illegal interrogation methods.

Instead, the Bush Administration ignored FISA and held Padilla as an enemy combatant for several years, making aggressive and unreasonable claims about its own powers, and then, when its bluff was called, it backed away from its prior actions. But in the meantime the Administration illegally invaded the privacy of countless numbers of persons in the United States and Padilla lost three years of his life in military prisons; indeed recent reports suggest that his mental condition has been so impaired by the interrogation methods used on him that he may not be competent to stand trial. This behavior is the very opposite of Bickelian prudence, and it is the sort of behavior most likely to undermine the Executive's credibility as "tak[ing] care that the laws be faithfully executed." A Bickelian court is not a bully, aggressively touting its own power and trampling on people's rights willy-nilly. The Bush Administration has proved time and again that it is.

Tuesday, January 23, 2007

Habeas Corpus and the Tyranny Gap


Several people have asked about Chief Justice Marshall's statement in the 1807 case of Ex Parte Bollman that the right of habeas corpus depends on statute even though it should be interpreted according to the common law: "for the meaning of the term habeas corpus, resort may unquestionably be had to the common law; but the power to award the writ by any of the courts of the United States, must be given by written law." 8 U.S. 75, 94-95. Doesn't this prove that the Constitution secures no right to habeas corpus, and that habeas corpus is purely a creature of statute? If so, wasn't Attorney General Gonzales technically correct that there is no constitutional right to habeas?

The answer is no.

Let me first point out that in the current litigation over the Military Commissions Act of 2006 (MCA) the Bush Administration is not taking Gonzales' position. It is arguing that either the MCA withdraws rights that fall outside of the minimum constitutional requirements of habeas corpus or that the remedy the MCA offers is an adequate substitute for habeas. Let me repeat: even Gonzales's own Justice Department is not making as radical a claim as he apparently made before the Senate Judiciary Committee. The arguments in this case start with the assumption that there is a constitutional core of habeas that Congress may not rescind without falling afoul of the Constitution, even if federal habeas jurisdiction is provided by statute. The dispute in the MCA litigation is the scope of that constitutional core.

How do we know that there is such a constitutional core?

The drafters of the 1787 Constitution chose language that preserved the common law right of habeas corpus rather than specifically fashioning a new constitutional right. As a result, the 1787 Constitution left in place the common law right of habeas and restricted Congress's ability to suspend it. And, as we shall see, there are structural reasons why, when elements of sovereignty were transferred from the states to a new federal union, the principle of non-suspension meant that habeas corpus had to apply to a new series of situations.

To understand Chief Justice Marshall's remark in Ex Parte Bollman, we must remember that the 1787 Constitution does not, on its face, require that there be any federal courts except for the Supreme Court. Congress soon created such courts, and created jurisdictional statutes which, among other things, gave these courts the right to hear writs of habeas corpus.

However, if Congress had not created any lower federal courts, there would still be a common law right of habeas corpus available in state courts. Imagine that the governor of a state imprisoned a political opponent by declaring him an enemy of the state. This, of course, is the paradigm case for why the English common law created habeas-- to limit the King's ability to imprison people outside of the rule of law. In this case, the common law courts would be able to issue writs of habeas corpus to the governor.

Now imagine, after the ratification of the 1787 Constitution, that the President of the United States declares some one an enemy of the state and throws him in jail. Suppose further that there are no federal courts except the Supreme Court. Presumably either the Supreme Court would have the authority to issue a common law writ of habeas under its original jurisdiction (But cf. Marbury v. Madison) or, more likely, state courts could issue such a writ, with appellate review by the U.S. Supreme Court.

But could the state courts do this, you may wonder? How could they have jurisdiction to compel the President to do anything? Recall that people were very concerned that the new federal government would destroy the liberties of the citizenry. It is unthinkable that the ratifiers would have allowed the new President to be free from the writ of habeas corpus when even the King of England, George III, was limited by that writ.

Thus, if there had been no federal courts, the states would retain not only the right to restrain their own officials, but also the officials of the new federal government for violations of law, subject always to review by the Supreme Court of the United States.

As it turned out, Congress created federal courts almost immediately, and gave them the power, by statute, to issue writs of habeas corpus. In this sense Marshall's statement in Ex Parte Bollman is technically correct that the power of *federal* courts to issue writs comes from statute, and not directly from the Constitution. But it does not follow that the power of *state* courts to issue writs of habeas corpus comes only from statute. Moreover, it does not follow that Congress may limit the power of federal courts to issue writs of habeas corpus without running afoul of the Suspension Clause. Here's why:

First, the Supreme Court later held in Tarble's Case, 80 U.S. 397 (1872), that state courts do not generally have the power to issue writs of habeas corpus to federal officials acting under claim of or color of federal authority. Justice Field argued that otherwise, no federal decision or action could be final unless it received the consent of all the courts in all of the states. Given that in 1872, the country was still in the middle of Reconstruction, with federal officials despised in the newly conquered South, Field's reasoning made a lot of sense. If state courts in South Carolina and Georgia could repeatedly haul federal officials into court on writs of habeas, federal enforcement of law in the South would come to a standstill.

Some people think Tarble's case is wrongly decided-- an aberration caused by the features of the Reconstruction period. It also makes sense only if you assume that there had to be lower federal courts; but for the moment, let's assume that it is correct. If Tarble's Case is correct, it would mean that Congress was constitutionally *obligated* to vest habeas jurisdiction in the federal courts to the extent that common law state courts collectively enjoyed in 1789. Why? Because otherwise the Suspension Clause would be completely undermined. The President would be able to do what the King of England could not do: throw people in jail under claim of executive authority without any right of judicial redress. The President could easily become a tyrant-- precisely the thing that the framers and ratifiers of the 1787 Constitution feared. It is simply unthinkable that the people who ratified the 1787 Constitution would have agreed to a President who could do what even George III could not do.

So if Tarble's case is correct, then Congress has a constitutional obligation to create statutory jurisdiction for habeas in the federal courts.

Second, even if Tarble's case is incorrect and state courts can issue habeas orders to federal officials, there might be other reasons why the Constitution required Congress to create federal habeas jurisdiction. In Ex Parte Bollman itself, Marshall noted that

It may be worthy of remark, that this act was passed by the first congress of the United States, sitting under a constitution which had declared 'that the privilege of the writ of habeas corpus should not be suspended, unless when, in cases of rebellion or invasion, the public safety might require it.'

Acting under the immediate influence of this injunction, they must have felt, with peculiar force, the obligation of providing efficient means by which this great constitutional privilege should receive life and activity; for if the means be not in existence, the privilege itself would be lost, although no law for its suspension should be enacted. Under the impression of this obligation, they give, to all the courts, the power of awarding writs of habeas corpus.

Why would Congress feel an obligation to create federal habeas if state courts could issue writs of habeas corpus against federal officials?

Assume that Tarble's case is wrong and that state courts could issue these writs. The 1787 Constitution created a new federal government with new powers superimposed over the old state governments, and claimed some of their powers-- particularly in the areas of foreign affairs, maritime regulation, and the creation and maintenance of federal territories.

These new powers, and the creation of a new government to exercise them, created new classes of cases-- and new possibilities for executive abuse-- where habeas might be needed. For example, the President might have arrested a person in the federal territories (not controlled by any state) or on the high seas; or, as the English Kings sometimes did, dragged their political opponents outside the borders of the country to attempt to escape the jurisdiction of the English courts. Moreover, the Constitution authorized the creation of new federal crimes, including treason against the United States, which was the subject of Ex Parte Bollman itself.

For some or all of these new situations, Congress might want to vest jurisdiction to test the legality of federal actions solely in the federal courts. Moreover, now that these new situations and new powers existed, there was a real question whether state courts could issue writs to restrain these illegal exercises of executive power. For example, states might not have jurisdiction over what happened in the federal territories, including the District of Columbia. If the suspension clause merely preserved the historical scope of habeas jurisdiction *in each state*, then the President would be free to drag people into federal territories (including not only military bases but also the District of Columbia) and keep them in federal prison there forever without charges. Put a different way, the new federal government created the possibility of a "tyranny gap" (to use an expression of my friend Akhil Amar). Once again, the President would have greater powers than the King of England, George III.

To avoid this result, there was an easy and obvious structural argument: The Suspension Clause should be read to hold that preservation of the common law writ of habeas corpus must include the power of federal courts to issue the same sorts of writs against the federal government that states could have issued against their own governors and executive officials before 1789, or that English courts could have issued against the Crown. (If Congress did not choose to create federal courts, the principle would require that Congress vest this jurisdiction in some group of state courts, most likely with a right of appeal to the U.S. Supreme Court. But in 1789 Congress made its choice: it created a federal judiciary and gave it jurisdiction over habeas.)

Now we see why Chief Justice Marshall, even before Tarble's Case, thought that Congress felt an obligation to create federal habeas jurisdiction. Ex Parte Bollman was a prosecution for treason arising in a federal territory, the District of Columbia. It was one of these new cases created by the formation of a new central government superimposed over the states, a situation where state jurisdiction might not be available. As Marshall said,"for if the means be not in existence [to deal with such cases], the privilege itself would be lost, although no law for its suspension should be enacted."

Hence, the basic principle of the suspension clause is: if courts in a pre-ratification state government, or in the United Kingdom, had jurisdiction to bring writs of habeas corpus against their executive officials, either state courts or federal courts (if state courts lack jurisdiction) must have a structurally equivalent power. Congress has an obligation to create federal habeas jurisdiction sufficient to achieve this result. This principle outlines the constitutional core of habeas corpus. It is a matter of constitutional right, and it may not be abridged by Congress except under the conditions outlined in the Suspension Clause.

Call this principle the principle of structurally equivalent sovereignty, or, more to the point, the principle of structurally equivalent tyranny. This principle avoids the tyranny gap that would otherwise have been created by the formation of a new federal government. The principle would have made a great deal of sense at the time of the ratification of the Constitution. At the time of the Revolution, Great Britain was a major empire and maritime power, with colonies and military forces strewn around the known world. There was a great deal of mischief the King of England could do outside the territory of the British Isles, and courts were needed to keep him in line. The new American nation was becoming a lot like its British predecessor. It too, was developing into a maritime power, and it too, was amassing a sizeable quantity of new federal territory, some ceded from the states, others newly acquired. The Northwest Territory, created in 1787 before the 1789 ratification, was larger than any of the existing states. Indeed, after the Louisiana Purchase of 1803, the scope of federal territories was larger than all of the existing states put together. The idea that habeas corpus did not apply to this vast territory-- much less the nation's capitol-- would be unthinkable. The structural principle I've outlined here is the best way to make sense of what the suspension clause did-- and what it required-- for an emerging continental and naval power.

In addition to the constitutional core of habeas, Congress may create additional habeas jurisdiction. This is sometimes confusingly called "statutory habeas," to distinguish it from "constitutional" habeas. As we have seen all federal habeas jurisdiction is statutory, but some is required as part of the constitutional core.

Although Congress must pass statutes to give lower federal courts power to issue writs of habeas corpus, it does not follow, as Attorney General Gonzales seemed to suggest, that individuals have no rights of habeas corpus guaranteed by the Constitution. There is a core of habeas protection drawing on the common law that must exist somewhere in the legal system, and must be enforceable by some courts, whether federal or state. Congress may expand habeas jurisdiction beyond that constitutional core.

The issue at stake in the Guantanamo Bay litigation is whether the constitutional core of habeas applies to aliens who have been accused of being enemies of the state and confined in territory controlled by the United States. If only statutory habeas applies to the Guantanamo Bay detainees, Congress may withdraw habeas jurisdiction.

The Supreme Court has not squarely addressed this issue in Rasul v. Bush. Although the majority opinion suggested that such persons were protected by the common-law habeas right protected under the Constitution, its specific holding was only that-- in the legal context prior to the MCA-- they were at the very least entitled to statutory habeas rights.

If the MCA's alteration of habeas falls within the constitutional core of habeas, Congress and the President must either demonstrate that we are in a period of rebellion or invasion, or that it has offered an adequate substitute for habeas. Not surprisingly, the Bush Administration's major argument before the courts is that the Combatant Status Review Tribunals-- and the limited appeal from the CSRTs to the D.C. Circuit-- offer an adequate substitute for habeas.

I've given my reasons why I think the constitutional core of habeas applies to aliens within the United States and to the Guantanamo Bay detainees here. That is why I think there are serious problems of constitutionality raised by the MCA. We are in a position remarkably similar to that of the British Empire before the American Revolution; just as King George was limited by the British courts in how he could treat aliens in British territories held overseas, so too President George is limited in how he can treat aliens today.

Monday, January 22, 2007

The Political Future of Abortion Rights


Today marks the 34th anniversary of the decision in Roe v. Wade.

For many years many people-- including even some supporters of abortion rights-- have assumed that Roe was a constitutionally illegitimate decision that had no basis in the Constitution's text or the principles of its framers. Recently I have argued that the conventional wisdom is incorrect, and that the right to abortion, if not the actual logic of Roe itself, is faithful to the original meaning of the Fourteenth Amendment and the principles that underlie it. You can read the full argument here.

The fact that the abortion right can be squared with the Constitution's original meaning does not tell us, however, whether the courts will retain it or overrule it. In this essay I want to consider that latter question: Will the constitutional right to abortion survive politically and legally in the long run?

As Mark Graber reminds us, constitutional controversies are usually settled when one side or the other gives up. As of now, it does not look as if one side or the other is going to give up on the constitutional right to abortion. That does not mean, however, that Roe or Casey will soon be overruled. It means rather than the abortion right will be continually reshaped in the next several decades.

For example, most people don't realize that Roe was already partially overruled in the case that purported to affirm it, the 1992 decision in Casey v. Planned Parenthood of Southeastern Pennsylvania. Casey jettisoned Roe's trimester system and adopted an "undue burden" test for regulations on abortion prior to viability.

The reason why Casey overruled Roe partially was fairly simple. The Republicans made five straight Supreme Court appointments after the Republican Party became the pro-life party in 1980. What is surprising is not that Roe was cut back, but that it survived at all. The most likely reason that Roe survived in limited form is that political factors prevented the appointment of enough strongly pro-life judges and because, after the failure of the Bork nomination, it became clear that it was not in the long-term political interests of the Republican Party to overrule Roe completely instead of chipping away at it gradually. Hence the Republican majority on the Supreme Court eventually produced a watered down version of the abortion right in Casey.

In fact, Casey gave stability to what was left of Roe v. Wade and moved constitutional doctrine (in practice) closer to the vector sum of political forces in the U.S. It allowed increased regulation of abortion-- particularly for the poor-- while preserving the effective right to abortion for affluent and middle class women.

This may not be the most just compromise from either a pro-life or a pro-choice standpoint-- in fact it may be morally obtuse for both sides, but that is true of many compromises. Evidence of Casey's success in moving the doctrine toward the political center is that most of abortion politics in the decade after Casey has nibbled around the edges of the key right-- it has concerned things like parental notification and partial-birth abortion, and largely symbolic gestures like the Unborn Victims of Violence Act, passed in 2004. Pro-life forces have been unable to succeed in wiping out the basic abortion right for affluent and middle class women. However, they have been quite successful in making it very difficult for poor women and women in rural areas to obtain abortions, and they have been able to effectively drive abortion providers out of a number of areas of the United States. But both of these results were foreseable if not inevitable consequences of the doctrinal structure created in Casey.

Nevertheless, the single most important factor in reducing the number of abortions in the United States has been increased use of and education about contraception, which some parts of the pro-life movement happily support. Other parts of the pro-life movement regard contraception (and education about contraception) as less desirable than promoting sexual abstinence programs, and still other parts of the pro-life movement actively oppose contraception as being, like abortion itself, immoral.

Given the relationship between Supreme Court jurisprudence and national political forces, it is very likely that the federal courts will not overturn Roe v. Wade any time soon, but they will continue to chip away at it. That is true even if the courts continue to be dominated by conservatives appointed by Republican Administrations. Generally speaking, the Supreme Court tends to stay roughly in sync with the vector sum of political forces in the country; since the Republicans have lost Congress recently, we can expect that it is somewhat less likely than before that Roe will be overturned; but this says nothing about marginal issues like the constitutionality of the 2003 Partial Birth Abortion act. If the Democrats regain the White House in 2008 and continue to control both Houses of Congress, it is very unlikely that Roe will be overturned in the near future.

One policy that might go some ways toward settling the political dispute over abortion would be the passage of a federal Freedom of Choice Act that statutorily codified basic features of Casey. Such an act, of course, would not pass until Democrats control both the Presidency and Congress; the last time this happened, in the Clinton Administration, inter-party squabbling prevented its passage.

There are no guarantees, of course, but Congressional ratification of Roe/Casey might bring a somewhat larger group of Americans to conclude that abortion was an established right and not a mere imposition by federal judges, that abortion rights were here to stay and that people should stop trying to get rid of them. No doubt many people would continue to have strong moral objections to abortion even if Congress passed a Freedom of Choice Act. But the question is not whether such a settlement would make abortion moral for abortion opponents (it would not). The question is whether the passage of a Freedom of Choice Act ratifying Roe/Casey would lead a sizeable number of abortion opponents to conclude that the best way to fight this particular form of immorality was not through seeking criminalization of abortion, but rather through other methods, like moral suasion, promoting adoption, pushing for social policies that eased the financial hardships of poor women who would otherwise choose abortion, and, for some abortion opponents, promoting contraception and family planning.

This possible scenario is not entirely fanciful. Many people who once sought to criminalize same-sex sodomy now view homosexuality as immoral but not an appropriate subject for state criminalization. It is possible that the same thing may someday happen to abortion.

Obviously, the opposite result may also occur: someday most Americans may come to believe that abortion is immoral and that it should be criminalized everywhere. Or Roe may be overturned and we will have abortion legal in some states but not in others. I think these two scenarios are a bit less likely, but I have been wrong before about so many things that neither would entirely surprise me. For the foreseeable, future, however, I think the country will probably stick with the Casey compromise, not because it is particularly good policy from the standpoint of either the pro-life or pro-choice side, but because it protects abortion rights for affluent and middle class women, who, not entirely coincidentally, are also the women who are most likely to vote.

Sunday, January 21, 2007

Good news, bad news, and some disinterested analysis

Sandy Levinson

1. The good news: There are now fewer than two years remaining in the Bush Presidency.

2. The bad news: There remain 730 days of the Bush Presidency.

Disinterested analysis:

In trying to figure out what the last two years of the Bush Administration will be like, espcially with regard to domestic policy issues, I have found myself wondering about what may a limit to the Darryl (no relation) Levinson thesis that I have strongly endorsed over the past year or so. That thesis, of course, is that the congressional members of the President's party roll over and play dead with regard to significant oversight or opposition even to what they believe is misguided policy. I continue to think that that is largely true as a firsti-cut explanation for the 108th and 109th Congresses that were totally controlled by the Republicans.

But things might be considerably more interesting in the 110 Congress, and not only because a bunch of Republicans clearly believe that too-close identification with "their" President might be fatal to their own chances for re-election. (And isn't it interesting that two of the three Republican senators who are running for presidency, Brownback and Hagel, have split with Bush on his conduct of the War?) Rather, I find myself wondering how much Bush really cares all that much about the health of the Republican Party, as against burnishing his own now-dreadful legacy.

A George Bush who might run for re-election might also have relatively little incentive to compromise with Democrats and instead draw firm lines in the domestic sand that could be useful in the coming campaign. But there's not going to be a coming campaign. He's out on Jan. 20, 2009 (oh happy day!), and presumably he wants to leave as something other than the most reviled president in our history. So how might he do that? One answer is by returning to his 'Texas governor" strategy, where he was indeed, relatively speaking, a uniter and not a divider, who in no very strong way pandered to the DeLay wing of the Texas Republican Party. (One of my own confessions is that I left my ballot blank in the 1998 gubernatorial election, since the Democratic candidate attacked Bush from the right (!) because he had commuted the death sentence of a mass murderer simply because the murderer clearly did not commit the particular murder for which he has been sentenced to death. According to Gary Mauro, it didn't matter, because he had confessed to other murders (for which he had not received the death sentence).) In fact, Bush did the right thing, and he hadn't done so much that was clearly wrong that I was willing to swallow hard and vote for Mauro. So I left my ballot blank. When Bush was handed the White House in elected in 2000, I assumed, both because of the "objective situation" and his demonstrated proclivities as Governor, that he would be a center-rightist. We know that didn't happen, in part because of being convinced by Rove and others that a "play to the base" strategy would be most successful. And so it was, for a while....

But playing to the base, when one isn't running for re-election, is a terrible strategy if one is trying actually to accomplish anything and burnish one's reputation, especially, obviously, if Congress is now controlled by the Democrats. So the long and short of my "disinterested analysis" is to ask exactly what incentive Bush has to continue to be Mr. Obdurate with regard to Democratic proposals? Why exactly shouldn't he sell out conservative congressional Republicans, who increasingly have nothing to give Bush beyond the ability to uphold his vetoes? But to leave the White House in 2009 as a combination of "Mr. Iraq disaster" and "Mr. Naysayer to progressive Democratic legislation" (much of which, incidentally, will have the support at least of "blue-state Republicans" panicked about the upcoming election) doesn't seem to all that attractive a possibility.

It is possible, of course, that Bush has deep convictions on domestic policy issues (such as stem cell research). It is also possible that he has deep convictions about sacrificing his own "historical interests" in being other than one of the five-worst presidents of all time (contending with Andrew Johnson, James Buchanan, Warren Harding, and James Madison). But, to put it mildly, Mr. Bush does not seem to be into self-sacrifice.

Bill Kristol made a great deal of political sense, alas, in 1993 when he advised Republicans in Congress to stiff-arm Clinton on medical care reform unless they wanted to hand the presidency to the Democrats for the foreseeable future. Democrats may have their own incentives not to compromise with Bush on the grounds that they want to lay the grounds for a 2008 campaign based on a "sweeping clean" of of the Bush legacy. But, as already suggested, aren't Bush's incentives, at least in the domestic arena, to compromise like mad? Is this why he has suddenly reversed course on FISA (much to the dismay of National Review)? Is this why he is even willing to countenance what is in fact a tax increase, though quite possibly a dumb one, to pay for medical insurance coverage of those who are now without?

Needless to say, I still believe he is the most incompetent President in our history and I continue to dislike the Constitution for not giving us the ability to evict him from the White House. But I don't rule out that he may surprise us in the next two years for the most self-interested (instead of Party-interested) of reasons. So, in summary, if I were a Republican, I would be very, very scared of what the next two years will bring, as distinct from the way that I am scared simply as an American.

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