Wednesday, April 28, 2010

The Supreme Court Term and the Coming Confirmation Process

Rick Pildes

[Cross-posted from The Federalist Society Online Debate Series]

By the end of June, the Supreme Court Term might well look like this: the Court will have held unconstitutional Congress' attempt to limit corporate and union electioneering spending. By the same 5-4 majority, the Court might have held unconstitutional Congress' response to the last financial crisis, the Sarbanes-Oxley Act, enacted in the wake of the Enron, WorldCom, and similar corporate scandals of the late 1990s-early 2000s (Full disclosure: I represent seven former Chairmen of the SEC in this case, who are arguing in favor of the constitutionality of the Act). And the Court might have held unconstitutional the criminal conviction of the man who more than anyone else, is the most visible face of those corporate scandals: Jeffrey Skilling, the former President of Enron. Think about that picture: Congress' effort to legislate in the wake of the last corporate scandal, unconstitutional. The conviction of Enron's head, unconstitutional. Congress' effort to rein in corporate participation in elections, unconstitutional. All this as the country roils with the aftermath of the worst financial crisis since the Great Depression, including angry debates about whether entities like Goldman Sachs committed fraud or engaged in unethical behavior in ways that contributed to the financial meltdown.

At the start of the Court's Term, I suggested that how the Court implicitly responded to the financial crisis would be the defining issue for the Court this year. And if the picture I've sketched is indeed how the Court's Term concludes, that issue is going to come home to the Court with a vengeance. The Court will be swept into a maelstrom of controversy centered on perhaps the largest domestic issue of our times: how much power does or should government have to regulate corporate behavior. To some extent, this reaction to the Court will quickly move beyond what's actually involved in some of these cases. If the Court overturns Skilling's conviction, for example, the Court might do so as part of a series of cases that hold the "honest services" statute unconstitutionally vague; and that statute has been used more to prosecute government officials than corporate executives. But coverage of the Court, from both academics and the media, has become as polarized and unnuanced as everything else in our hyperpolarized political culture. The fury Congress is currently directing to Goldman Sachs will turn to the Court.

There will be a ready stage on which to present this drama: the confirmation process. Not only will the focus shift from the cultural issues that have dominated hearings in recent decades to economic ones, but Congress will have a much more direct stake in the issues. Unlike the cultural issues, where the Court is typically confronting state laws, here the Court would be holding unconstitutional national statutes involving Congress' regulation of the national economy. Will the anticipation of this drama, already foreshadowed in the reaction to the Court's Citizens United decision, influence who gets nominated to the Court? I have thoughts on that, for another post, but I wonder what others might think about the effect on the Court and the confirmation process of this looming drama.

Tuesday, April 27, 2010

More on ACTA


Margot Kaminski follows up her previous posts on the proposed ACTA treaty with this op-ed in the San Francisco Chronicle.

Is Arizona's New Immigration Law Preempted?


I've been meaning to post something on Arizona's new immigration law, but haven't had the time until now. The constitutional challenge to the law will likely be that it is preempted by existing federal immigration law, and therefore violates the Supremacy Clause of Article VI, but the constitutional question is far from clear.

The new Arizona law aims to assist in enforcement of federal laws against illegal immigration. So this is not a statute that only incidentally affects federal immigration policy. Quite the contrary: its stated purpose is to cooperatively assist the federal government in protecting the nation's borders, identifying illegal aliens, apprehending them, and delivering them to federal authorities. The bill was deliberately written to be preemption-proof by tracking federal definitions and placing state law enforcement officials in the service of enforcing federal law.

If so, how can the law be preempted by federal law? The answer is that the federal government might well believe that Arizona's attempt at helping it enforce its immigration laws is counterproductive and therefore actually conflicts with federal enforcement policy. In this case, the fact that Arizona is tracking federal definitions of who is an illegal alien might make things worse for the law's constitutionality, not better. First, Arizona will not be able to justify the law on the grounds that it has only incidental effects on federal immigration policy; Second, it will be more difficult for Arizona to argue that the scope of its new law is not already occupied by the federal scheme and that the law does not interfere with federal law's balancing of the relative costs and benefits of adopting particular enforcement policies.

The leading Supreme Court case on preemption of state immigration law, De Canas v. Bica, is now thirty five years old and predates recent federal immigration reforms, so it is anybody's guess about what the current Supreme Court would think about the issue. De Canas upheld a California law which made it a crime to knowingly hire an illegal aliens; the decision has lots of language that gives states plenty of room to pass immigration regulations consistent with federal law. On the other hand, DeCanas assumed that the law in question did not significantly interfere with federal immigration policy, or at least, there was no evidence in the record that it did.

There is a much stronger argument [than was available in De Canas] that the new Arizona law, while purporting to be helpful, actually sticks a thumb in the eye of the federal government by engaging in draconian measures. The Arizona legislature appears to be saying, in effect: "since you won't police the borders, we will, and if you don't like it, pass some new legislation." If this is the point of the new Arizona law, then the law isn't really an attempt at cooperation but an attempt at provocation and one-upmanship, and the chances that it is preempted increase.

Of course, what a given federal court will do in this situation is difficult to predict, because federal courts can construe the Arizona law and existing federal law to make them seem harmonious if it wants to uphold the legislation, or in serious conflict if the court wants to hold that the new law is preempted. The law of preemption gives courts considerable discretion, and much depends on what the bill seems to symbolize and how it is actually enforced in practice.

Thus, opponents of the new law would be well advised to assemble a factual record demonstrating how enforcement of the new law interferes with federal policy or makes it more difficult, for example, by alienating Latino communities and other local organizations in Arizona, thereby making them more reluctant to provide information or cooperation in ways that assist enforcement. Evidence of overreaching by state law enforcement officials would also tend to show that what purports to be a cooperative measure is not actually cooperative at all.

Saturday, April 24, 2010

The Lanham Act Goes to the Movies

Ian Ayres

Crosspost from Freakonomics:

An occupational hazard of teaching intellectual property for the first time is that IP violations now repeatedly jump to mind. (I’m a bit like the hypochondriac med student who imagines encountering all the illnesses she just studied.)

Last week was no exception. My beloved spouse and I had a date night where we went to see the movie Date Night. (I’m a big fan of both Tina Fey and Steve Carell, but, like many critics, I was underwhelmed by the movie. The extended dancing scene was a particular misstep.) Aside from the movie’s artistic merit, I, as a newbie IP professor, was surprised by the movie’s use of a Kindle, the Amazon book reader.

***Mild Spoiler Alert***

Steve Carell’s character asks a New York cab driver if he has a laptop or some device that can read a flash drive (also referred to in the movie by the less tech-savvy Tina Fey character as a “computer stickie thing”). The driver responds that he has a Kindle, and Carell’s character then proceeds to insert the flash drive into the Kindle and immediately display certain incriminating pictures taken from the drive.

As an initial matter, do cab drivers really have Kindles in their cabs? Here’s a mini-bleg: please add a comment if you’ve seen a cab driver with a Kindle (or if you’re a cab driver and keep one in your car from time to time). I’d be amazed if 10 cab drivers in New York City have Kindles currently in their cabs. I mention the implausibility of finding a Kindle because it makes me think that Amazon probably paid for the “product placement.” (I have ridden in many cabs where the driver has a flash drive-compatible laptop, which would have been the more natural device for the driver in the movie to offer.)

But my larger concern is that Kindles can’t read flash drives. They don’t have USB ports. (Second mini-bleg: is there some snap-on adapter that would allow you to download files from a flash drive? This user board suggests I’m not alone in thinking that the movie attributes to the Kindle a feature that it simply doesn’t have.)
If my two conjectures are correct (i.e., that Amazon paid for the Kindle product placement, and that Kindles can’t read flash drives in the way depicted in the movie), then it seems to me that the movie violates the Lanham Act.

You see, Section 43(a) of the Lanham Act (our nation’s core trademark provision) prohibits false or misleading advertising:

Any person who, on or in connection with any goods or services . . . uses in commerce any word, term, name, symbol, or device . . . which in commercial advertising or promotion, misrepresents the nature, characteristics [or] qualities . . . of his or her or another person’s goods . . . shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act.

If Amazon paid for the product placement, it qualifies as a “commercial advertis[ement] or promotion” that “misrepresents the nature, characteristics [or] qualities” of the Kindle.

I think it would be fine for movies to take some artistic license with the qualities of a product if it is clear to the audience that the qualities are the script writer’s fantasy. For example, if Carell and Fey traveled through time by unlocking a hidden Kindle time-machine function, I don’t think there would be any liability (even if Amazon paid for the placement).

But what is troubling about the Kindle reference in “Date Night” is that it is not depicted as fantasy, but as an actual attribute of the product. There may be actual audience members who go out and buy a Kindle in part because of the movie’s depiction, and then are surprised to learn that the device cannot download files directly from a flash drive.

Any competitor “who believes that he or she is or is likely to be damaged” by this misrepresentation has standing to bring suit. Heads up Apple, Microsoft, and Barnes & Noble: you have a colorable claim. If I were the maker of the Onda VX560, I’d be particularly put out by “the ad” because the VX560 reader has a USB port and can actually download files from a flash drive.

I say this with no animus toward Amazon. Indeed, I love my Kindle. It let me discover something about SuperFreakonomics that I never would have found without it. The Kindle has improved the quality of my reading experience (even if I haven’t figured out how to download files from my flash drive).

But in a world where product placements are on the rise, it is entirely appropriate that our deceptive advertising laws respond. Merely wrapping an ad inside a work of art should not empower advertisers to misrepresent the attributes of their products.

Thursday, April 22, 2010

Replacing Justice Stevens on Security

Deborah Pearlstein

Cross-posted at Scotusblog
[Scotusblog is running a series on the jurisprudence of Justice John Paul Stevens]

Since Justice Stevens announced his intention to retire, discussions about what his departure will mean for the Court have regularly noted his military service in World War II. The justice enlisted the day before the Japanese bombed Pearl Harbor (and has joked about how the enemy responded to the news immediately). There is little doubt that a Court without substantial military experience among its justices will be missing an important perspective on the unique role the U.S. military plays in American policy and society. Judges are ideally made wiser from their range of life experiences; a broader range of experience among the justices seems likely only to enhance the Court’s collective wisdom. In that respect alone, Justice Stevens’ absence from the Court will leave a gap.

But Justice Stevens’ national security jurisprudence reflects a very particular kind of wisdom, drawn not only from his military service, but from a lifetime of attention to the persuasiveness of executive reason. As illustrated in a series of thoughtful histories in recent years (see here, here or here), the young John Stevens was likewise informed by his service immediately after the war as a law clerk at the Court to Justice Wiley Rutledge, who himself had struggled with the questions of executive power, individual rights, and national security that the Court has faced repeatedly in the years since September 11. Over his relatively short tenure on the Court, Rutledge seemed quickly to regret his early deference to a powerful President Roosevelt during World War II. With the majority in Hirabayashi v. United States (upholding a military curfew on Japanese-Americans living in certain “military areas” in California) and Korematsu v. United States (upholding the exclusion of Japanese-Americans from designated zones), Rutledge had reluctantly accepted the military assertion of wartime necessity. But the positions Rutledge took in these cases did not sit easily. As Rutledge later wrote to a colleague, “I have had more anguish over [Hirabayashi] than any I have decided, save possibly one death case” that he had encountered in the court of appeals. Indeed, Rutledge had written separately in concurrence in Hirabayashi, to emphasize that the Court’s acceptance of the military’s necessity justification here did not mean that such reasoning would invariably succeed, or that all such reasoning was beyond the power of the courts to review.

By In re Yamashita (upholding the military commission trial of a Japanese general), issued the year before Justice Stevens took up work at the Court, Rutledge was writing in dissent, rejecting the Government’s position “that there is no law restrictive upon these proceedings other than whatever rules and regulations may be prescribed for their government by the executive authority or the military,” in favor of the view that the U.S. Constitution, statutes and treaties here – as elsewhere – apply. Exigencies could arise, Rutledge understood, but particularly where the Government response imposed a burden on individual rights, it was within the power of the courts to check the reasons for the response, in security matters as anywhere else. The capacity to evaluate reasons was not the Commander-in-Chief’s alone. Thus, when Justice Stevens took up the challenge to the legality of President Bush’s military commission system at Guantanamo Bay sixty years later in Hamdan v. Rumsfeld, it was not surprising that it was Rutledge’s dissent the justice invoked.

It is certainly possible writing from some remove to overstate the impact Rutledge’s evolving views in the 1940s had on Justice Stevens’ thinking some sixty years later. Justice Stevens is, after all, also the author of Chevron v. Natural Resources Defense Council, the watershed administrative law decision typically understood to have cemented the importance of judicial deference to executive branch interpretations of statutory authority – a deference driven by the Court’s view of the Executive’s superior political accountability and expertise. Indeed, at first glance, it seems difficult to reconcile the Justice Stevens of Chevron – embracing judicial deference to the Executive – and the Justice Stevens of Hamdan – rejecting any notion of even modest deference to the Executive in interpreting the statutory Authorization for Use of Military Force and Uniform Code of Military Justice. One might argue the decisions are better read simply as a sign of the evolution of Justice Stevens’ own views during his long tenure on the bench.

This view seems to me to miss the value of what is in fact a rather consistent sensibility on the value of executive views. By the time Chevron came down, the Court had long recognized – as Justice Stevens reiterated in that decision – that executive views could help illuminate statutory meaning when the executive has special expertise in the face of a “regulatory scheme [that] is technical and complex,” when competing policy interests are at stake, and when it is clear the agency’s consideration of the matter had been “detailed and reasoned.” It was precisely the lack of such detail and reason in the President’s justification for pursuing military commissions at Guantanamo that troubled Justice Stevens in Hamdan. “Nothing in the record before us demonstrates that it would be impracticable to apply court-martial rules in this case…. [T]he only reason offered in support of that determination is the danger posed by international terrorism. Without for one moment underestimating that danger, it is not evident to us why it should require, in the case of Hamdan’s trial, any variance from the rules that govern courts-martial.” The Executive had presented no record or even detailed reason why it could not follow standard court-martial procedures. Indeed, as briefing surrounding the case had made evident, the Executive had largely excluded from the design process those lawyers in the military who were actually expert in how one might conduct a military commission trial. Expertise and record evidence could be valuable indeed. Far less valuable was the mere assertion of Executive authority.

Justice Stevens’ familiarity with the military and the important demands of national security perhaps made it possible for him to see what many have not – that there is nothing so extraordinary about the field of foreign relations per se that absolves the Executive of all need to be put to particular reason and compelling proof. It seems unlikely that the justice who takes his place will have Justice Stevens’ breadth of life experience in this regard. We will be fortunate if he or she nonetheless shares his insight.

Wednesday, April 21, 2010

The Anti-Counterfeiting Trade Agreement, Part II

Guest Blogger

Margot Kaminski

Yale Information Society Project

The official text of the Anti-Counterfeiting Trade Agreement was released today.

This post is a follow-up to my earlier post regarding the leaked draft of the Anti-Counterfeiting Trade Agreement (ACTA).

The big picture issues are unchanged: 1) ACTA establishes a new institution outside of existing international law; 2) ACTA pushes the international standard for IP law to an IP-maximalist’s dream; and 3) when you establish the information-sharing and investigative infrastructure, bad things (civil liberty violations) will follow.

I thought it might be most helpful to continue in the vein of my previous post and stay detailed and on-text. Where the released draft differs from the leaked draft, I have noted it with a “*”. I have not repeated all similarities, but tried to touch on the more important ones.

I also try to point out areas that appear most ripe for discussion.
In no particular order:

1) ACTA Creates a New International Institution. Chapter Five establishes the “ACTA Oversight Council”, which shall convene regularly and supervise implementation of the Agreement. The Committee’s resolution or avoidance of disputes must not conflict with the WTO dispute resolution mechanisms, per footnote Article 5.1(2)(c). The Committee is meant to issue best practice guidelines regarding IP adherence, and promote capacity building, something traditionally in the purview of WIPO. The Committee is to be conducted in English (open for debate) and to meet in Geneva (open for debate), perhaps lending it institutional legitimacy by geographic location.

2) ACTA Comes into Force after First Five Members Adopt it. ACTA enters into force after the first five members have “deposited their instruments of ratification, acceptance, approval or accession” Art 6.2(1).

3) Amendments happen through the Committee; new members cannot change the sign-on terms. New states become party to ACTA by signature or deposit of an instrument of accession. Amendments to ACTA happen only through Party-submitted proposals submitted to the Oversight Committee.

*4) The overall privacy provision is up for grabs. The draft notes in Article 1.4 that “A suitable provision needs to be drafted that would ensure nothing in the Agreement detracts from national legislation regarding protection of personal privacy”… and “disclosure of commercial information”.

*5) The scope of what kind of IP rights are affected is up for grabs. Will Article 2 (Section 1: Civil Enforcement) apply to any IP rights (including patents), or only copyrights and related rights and trademarks? Up for debate in Article 2.1. Also applies to Border Measures section.

*6) Injunctions. . Article 2.X mandates that right holders be in the position to apply for injunctions against intermediaries whose services are used by a third party to infringe IP rights. I admit to shallow knowledge in this field- but a cursory examination of US IP law highlights pretty significant limitations on the use of injunctions in IP cases (17 USC 512(j)). See also 2.5x re interlocutory injunctions to prevent imminent infringement. against intermediaries.

7) Statutory damages. It’s up for debate whether statutory damages “shall” or “may” apply. Article 2.2(2).

*8) Statutory damages for non-knowing infringers. Up for debate: Infringers who infringed unknowingly may be subject to statutory damages. But this is “may” and not “shall”, although complete exclusion from the agreement would be preferable. The comparable U.S. provision is 504(c)(2), providing for statutory damages for non-knowing infringers in the amount of “not less than $200”, but also including exceptions-- for nonprofits, educational institutions, and public broadcasting entities-- which are missing from ACTA.

9) Privacy: if subjected to an infringement suit, defendants must share info with plaintiffs. TRIPS allows but does not mandate. Appears potentially targeted at ISPs: mandating disclosure of info “regarding any person or persons involved in any aspect of the infringement and regarding the means of production or distribution channel of such goods or services, including the identification of third persons involved”. Art 2.4. This expands on TRIPS, which as mentioned allows but does not mandate such disclosure, includes proportionality language (“unless this would be out of proportion to the seriousness of the infringement”), and limits disclosure to the ID of “third persons involved in the production and distribution of the infringing goods or services and of their channels of distribution” rather than persons “involved in any aspect of the infringement” as ACTA dictates. See TRIPS Art. 47.

*10) De Minimis for Border Measures: Now consistent with the TRIPS standard. Would be great if they keep “sent in small consignments” to allow packages to go through without search, as well.

*11) Changes the definition of “pirated copyright goods.” It’s small but significant. TRIPs defines “pirated copyright goods” in Art. 51 ftnt 14 as “would have constituted an infringement…. Under the law of the country of importation”. ACTA defines as “under the law of the country in which the procedures set out in this Section are invoked.” So if a rights holder is able to choose a more favorable jurisdiction (say, its home country), it needn’t be stuck to the law of the country of importation. Will encourage forum-shopping by rights holders.

12) Debating whether a rights holder requesting border procedures needs to provide a prima facie case. This should be included, to be consistent with TRIPS.

13) Ex Officio Action by Customs Officials: Negotiating countries are debating whether ex officio action is required (“shall”) or permitted (“may”). As noted in my last post, ACTA changes the standard of the level of proof required from TRIPS. TRIPS permits ex officio action by customs officials when “they have acquired prima facie evidence that an IP right is being infringed” Art. 48. ACTA allows for ex officio action for “suspected” infringing goods.

*14) Privacy: Sharing information between Parties: when shipments are in transit, the originating Party “shall cooperate to provide all available information to the destination Party, upon request of the destination Party, to enable effective enforcement”. Art. 2.X.

*15) Securities are required from rights holders for border investigations. This is a good thing, requiring at least some financial obligation on the part of rights holders.

*16) Privacy: providing information to rights holders. Some improvements, but still problems. Where competent authorities “have seized or, in the alternative, made a determination under Article 2.10 that goods infringe rights covered by the section”, ACTA mandates that countries inform rights holders of identifying information for the consignors, importers, exporters, and manufacturers of the goods. This is a positive change because it allows countries to mandate informing rights holders only after a determination of infringement, which is consistent with TRIPs Art. 57 (“[w]here a positive determination has been made on the merits of a case”). But it still encourages such information sharing after seizure only, and seemingly places the infringement decision in the hands of “competent authorities” rather than judges as implied by the “merits of a case” language in Art. 57.

*17) Indemnifies authorities, and doesn’t include language re: rights holder liability. ACTA clarifies that competent authorities shall not be liable for any damages suffered because of those authorities’ intervention. This is noticeable because ACTA lacks TRIPS’ Art. 56 language, which requires applicants to pay for any injury caused to accused “infringers” through wrongful detention of goods.

*18) Criminal Enforcement. The debated language is as follows:
[(a) significant willful copyright or related rights infringements that have no direct or indirect motivation of financial gain; and
(b) willful copyright or related rights infringements for purposes of commercial advantage or financial gain.37]
Definitional footnote: “For purposes of this Section, financial gain includes the receipt or expectation of receipt of anything of value.”
Again, this pushes the boundaries of TRIPs’ requirement of criminal enforcement of violations on a commercial scale towards the U.S. standard of criminal enforcement for “private financial gain”, aka Internet piracy. Thankfully, this draft does not include “private” before “financial gain”, which would push to a full U.S. standard. The footnote definition of “financial gain”, however, does appear to allow for/encourage the U.S. interpretation of “private financial gain”.

*19) Exporting the Camcorder Act (the Family Entertainment and Copyright Act of 2005). This is U.S. law (18 U.S.C. 2319B) (similar law exists in Japan, evidently), and criminalizes filming movies in a movie theater. NOT a part of international law!

20) Provides for Imprisonment instead of just Fines. As in the leaked draft: TRIPs allowed for criminal penalties of fines alone; ACTA requires imprisonment.

*21) ISPs and OSPs watch out! They’re debating criminal liability for “legal persons”, ie companies and not just individuals (Art. 2.15(1)). Plus they’re debating criminalizing “[i]nciting, aiding and Abetting” infringement. These provisions are both up for debate, and should not be included in the final draft if ISPs don’t want to become subject to criminal investigations. Of particular note is the “up for debate” footnote: “[It is understood that there is no obligation to provide penalties of imprisonment against legal persons for the crimes set forth in Article 2.14.].” The fact that this is up for debate means there’s a chance companies will be specifically on the line for imprisonment for infringement on their networks.

22) Ex Officio Criminal Enforcement. This requires countries to allow law enforcement officials to initiate investigations without rights holder plaintiffs. Regulatory capture: employing government resources for private interests.

23) DMCA: There are three different possible versions of ISP liability, worth reading in greater detail. All at least vaguely resemble the DMCA’s “notice-and-takedown” provisions.

*24) Privacy: Language on ISP monitoring: Up for debate, and should be included: “no Party may condition the limitations in subparagraph (a) on the online service provider’s monitoring its services or affirmatively seeking facts indicating that infringing activity is occurring”.

*25) Privacy: Collaboration between ISPs and rights holders. This language MUST NOT BE INCLUDED. The first proposal requires OSPs to provide the identity of subscribers after “effective notification” from rights holders—not after court proceedings. The second option requires Parties to “promote the development of mutually supportive relationships between online service providers and right holders”.

26) Circumvention of DRM - “Willful” definition. The circumventor need not be willfully pursuing an IP infringement, only have “means actual knowledge or reasonable grounds to know that he or she is pursuing the objective of circumventing any effective technological measure.]” In other words, the willfulness for criminalization of circumvention applies to the hacking, not the copyright infringement. You could conceivably go to prison for deliberately hacking what you believed to be noninfringing material.

*27) Where is Fair Use/Exceptions and Limitations? Despite the otherwise rampant exportation of U.S. law, there is no indication that the U.S. wants to export its conception of fair use to either the agreement as a whole, or the DMCA provisions, where in US code it is scattered throughout. Instead, two debated sections indicate that “each Party may adopt exceptions and limitations” allowed under the Berne Convention, in the limited context of discussing the DMCA provisions. These “exceptions and limitations” provisions must occur prominently at the beginning of the agreement, and apply throughout.

28) Privacy: International criminal investigation cooperation and information-sharing. It is currently up for debate whether cooperation on criminal investigations is mandated cross-Parties. Mandatory information sharing in criminal investigations is highly problematic from a civil liberties standpoint across regimes with different criminal law processes and protections. For information sharing, the two debated provisions are as follows: Parties must “(b) exchang[e] available data with custom authorities of other Parties regarding significant seizures of [counterfeit and pirated] [infringing] goods by customs, wherever possible” VERSUS “(b)when appropriate, exchange data with border authorities of other Parties”. The second is preferable.

29) Another Privacy passage that should be included: up for debate right now:
[4. Nothing in this Chapter and Chapter 4 shall require any Party to disclose confidential information which would be contrary to its laws, regulations, policies, legal practices and applicable international agreements and arrangements, including laws protecting investigative techniques, right of privacy or confidential information for law enforcement, or otherwise be contrary to public interest, or would prejudice the legitimate commercial interests of particular enterprises, public or private.]

Margot Kaminski is a Student Fellow of the Yale Information Society Project. You can reach her at margot.kaminski at

Walter Murphy

Andrew Koppelman

Walter Murphy, the McCormick Professor of Politics Emeritus at Princeton, has died. Walter was a scholar of astonishing accomplishments, producing important work in empirical political science, political philosophy, constitutional theory, and comparative law. He was also a bestselling novelist: his book The Vicar of Christ is a fun read.

But I want to say a bit about the kind of person he was. Losing him is a hard blow for me. Walter gave me my first academic job, as an assistant professor at Princeton, and he went out of his way to welcome me and my family to town. He was as kind and helpful a senior colleague as one could hope for. But he was more than that. He was warm and funny. My wife and I were having dinner at his house, where he had at least four very large and friendly cats. We mentioned that we had three. He said, “three cats! You must not be very intelligent,” and delivered the line with such a studied deadpan that it took a moment to catch the twinkle in his eye. That kind of self-effacing humor was typical of him. His life was hard in many ways. He spent years devotedly caring for his wife, Terry, after her stroke. But I never heard him complain. Walter was a mensch.

Walter told me he was dying of cancer the last time we talked, perhaps a month ago. He wasn’t then expecting it to carry him off so fast, but the doctors had told him he didn’t have more than two years. I said how sorry I was to hear the news. “You’re sorry!”, he said, delivering the line like the punchline of a joke. I could see him smiling on the other end of the phone. I hope, when the time comes for me to make my exit, that I can pull it off with such remarkable good grace.

Tuesday, April 20, 2010

Animal porn and the Constitution

Mark Tushnet

Today's decision in United States v Stevens has already attracted a great deal of comment. I add one snarky observation and two analytic ones. Snark: You rarely get in trouble with the press when you write an opinion invoking the First Amendment to bar the government from doing something. ("Rarely," not "never": see Citizens United.)

Others have made the first analytic point, that Chief Justice Roberts's effort to distinguish the Court's creation of a new exception to First Amendment coverage is transparently circular. See, for example, Michael Dorf.) The test for new exceptions is apparently historical, except when it isn't, in which case the test involves precisely the kind of balancing the Chief Justice says is "startling and dangerous."

The second analytic point is about one line in Justice Alito's dissent. He writes, "The First Amendment protects freedom of speech, but it most certainly does not protect violent criminal conduct, even if engaged in for expressive purposes." What on earth is "violent" doing in that sentence? Does Justice Alito mean to suggest the possibility that the First Amendment does protect non-violent criminal conduct engaged in for expressive purposes? (An easy case: Defacing public property with graffiti? A harder one: Solicitation of others to break into government buildings and destroy government documents [the solicitation is nonviolent, after all]?) Or is this just a slip of the pen?

Why are conservatives so afraid of contraception?

Andrew Koppelman

My recent post, “How the Religious Right Promotes Abortion,” elicited a quick response from Michael New of the Witherspoon Institute, which was just as quickly endorsed by Rick Garnett and Thomas Peters. Prof. New wants us to believe that, even though a very large number of American women receive no instruction about contraception before their first sexual experience, giving them that information would have no effect whatsoever on the rate of unintended pregnancy. Now June Carbone and Naomi Cahn, on whose work I rely in that post, have written a response, which I post below. They answer New’s arguments better than I could.

I add only that it is astoundingly stupid and tragic that this is what we are arguing about. One of the rare areas of common ground between opponents and supporters of abortion rights is that neither side thinks that unintended pregnancy is a good thing. We should be able to come together on measures that would actually reduce the rate of unwanted pregnancy, and thus, inevitably, reduce the abortion rate. That might even help the anti-abortion cause in the long run, because it would reduce the number of American women who have had abortions (a risk that I, a supporter of abortion rights, am willing to take). Yet instead, we are having this silly argument. It is dispiriting.

Here is what Carbone and Cahn write:

There are more than 66 million women of childbearing age in the US, and 90% of them will use birth control at some point in their lives. Contraception is part of the fabric of women's lives from the beginning of sexual activity through menopause. Women use contraception so that they can delay pregnancy, or because they want to space out their children, or because they don’t want any more children.
We argued in our book, Red Families v. Blue Families, that if there is to be an approach to family values that transcends the culture wars it should include a change in emphasis from abortion to contraception. The first is an intrinsically divisive issue; the second should not be. Yet, every time legislators advocate recognition of women’s needs, conservatives work to derail them. When President Obama proposed strengthening family planning efforts in the stimulus package, Republicans blocked the measure. When Senator Barbara Mikulski suggested that health care reform address contraception, conservatives falsely insinuated that the proposal would increase abortions. Most recently, Professor Andrew Koppelman of Northwestern argued that the middle ground in the abortion fight is greater support for contraception, and a prominent conservative blog responded by rejecting the very idea that contraception could possibly have anything to do with reducing abortions.

These assertions are astounding. The most frequently asserted half-truth making its way across the internet is that most women who have abortions did use some form of birth control, therefore “there is relatively little the government can do to increase contraceptive use among sexually active women.” (Michael New, Witherspoon) The veiled message, of course, is that the only way to prevent abortions is prevent sex. We happily married women who do not want ten children each should take note.

More critically, though, the distortions threaten to widen the already huge gulf between rich and poor in control of unwanted childbearing. Here are the facts. Publicly funded family planning services helped prevent almost two million unwanted pregnancies that experts estimate would have resulted in over 800,000 abortions, and improvements in contraceptive access and effectiveness are the single biggest explanation for the drop in abortions in the nineties. It is also true, as conservatives claim, that the majority of women who have abortions were using contraceptives – and that is exactly the point. The government can increase the effectiveness of contraceptive use, preventing even more abortions, and it is time to acknowledge that conservatives stand in the way of doing so.

First, let’s recognize what every sexually active woman knows: contraception is a messy business. Yes, most sexually active women use it and, yes, almost everyone can afford a condom. What pro-life conservatives rarely discuss is that long term injectibles are easier to manage than the pill, women who have had a child find diaphragms less reliable than those who have not, IUDs, which have become substantially safer over the last two decades, require a doctor’s involvement and monitoring, condoms, which women cannot control, are more effective when used together with other methods, and a thousand other details exist that make contraceptive use with consistent medical care much more reliable than contraceptive use without such access. The big story from the nineties is that doctors have finally come up with safer and more effective contraceptives, and more consistent and effective contraception explains 85% of the drop in teen pregnancies and the most substantial part of the drop in abortions.

Second, we should recognize that improvements in the sophistication and effectiveness of contraception have increased the class-based disparities in unintended births. The overall unintended pregnancy rate has stayed about the same, but in the nineties, it dropped 20% for college educated women and increased 29% for poor woman. The simple explanation is that avoiding unwanted pregnancy has become easier – but only for those who have systematic access to medical care.

So why are conservatives so reluctant to come on board? We suspect that it is because doing so requires acknowledging a dirty little secret. The unintended pregnancy rates of college educated women have fallen in large part because of the benefits of taxpayer subsided health insurance. The Republican party has been working overtime to make sure that other women do not have access to the same benefits.

Monday, April 19, 2010

Balkinized Constitutionalism at Princeton and Newport


I'll be talking about the ideas in my forthcoming book on constitutional interpretation on Wednesday the 28th in Princeton. I'll be giving the 2010 Donald S. Bernstein Lecture next Wednesday at 4:30pm in Dodds Auditorium in Robertson Hall. The title of the lecture is "Fidelity and Flux: How We Build Our Constitution."

This Friday, April 23d, I'll be in Newport, Rhode Island, at the New England Political Science Association meeting, responding to critiques of the book by my fellow originalists Steve Calabresi, Gary Lawson, and Keith Whittington. Ken Kersch will moderate the food fight.

My forthcoming book on constitutional interpretation (hopefully due out sometime in 2011) doesn't have a title yet, so I've given it different names wherever I go, trying each one on for size. When I figure out what to call it, I will let you know. I've considered and rejected as titles "War and Peace" and "The Brothers Karamazov," since I have been reliably informed that they have already been used.

Heritage Foundation Argues for Constitutionality of Individual Mandate


In today's Washington Post, Robert Moffit of the Heritage Foundation tries to explain why the new individual mandate is not consistent with the (current) ideas of the Heritage Foundation. (As Moffit notes, the Heritage Foundation originally promoted the concept of an individual mandate, but Moffit argues that both he and the Heritage Foundation have changed their minds. The change apparently came after 2007, when Moffit publicly supported the individual mandate.)

In the process of differentiating his new views from the new health care bill, however, Moffit unwittingly shows why the individual mandate is constitutional.

There are two arguments for the constitutionality of the individual mandate. One is that the mandate is a regulation of interstate commerce; successful reform requires bringing uninsured individuals into the system because of the costs they impose on the system. Individuals who refuse to purchase insurance actually self-insure and therefore cumulatively affect commerce and Congress has the power to reach their conduct in order to make insurance reform work. The second argument is that the mandate is structured as a tax and gives individuals a choice whether to pay taxes or purchase health insurance. Moffit's arguments support both of these constitutional theories.

Moffitt explains that he and the Heritage Foundation recently changed their minds about whether the individual mandate is good public policy, citing to an 2008 article in the Harvard Health Policy Review (the link is currently broken on the Washington Post website, so I have provided the correct link here.).

The article argues that there are better policy alternatives to the individual mandate, which offer greater respect for personal freedom (in this case, negative economic liberty). My purpose is not to dispute this point, but rather to argue that the government can constitutionally choose an alternative that is less protective of economic liberty. If citizens do not like government policy choices in the economic arena, they can vote for candidates who will repeal the laws they do not like. This is exactly what Tea Party activists and other conservative groups are currently arguing for.

In the course of making his claims, Moffit explains that his preferred alternative should allow individuals to self-insure:
[E]very individual should have the freedom to self-insure. Individuals should not be forced to buy a health insurance product if they do not believe that health insurance is the best way for them to finance their personal healthcare. They should be free to make other arrangements or choose other forms of healthcare financing, such as pre-funding through savings accounts or other instruments that may emerge in a rapidly changing healthcare economy. Personal freedom, then, remains a core value in the pursuit of a sound national healthcare policy.
As noted above, the Commerce Clause argument for the constitutionality of the individual mandate argues that when individuals do not buy insurance, they self-insure and that this has a substantial cumulative effect on interstate commerce. Moffit's argument would seem to agree with this premise. As he states earlier in the article:
In the United States, the uninsured, who do not or cannot pay their hospital bills, are the major source of uncompensated care costs. Urban Institute analysts have estimated that the total national costs of the uninsured amounted to approximately $41 billion (in 2004 dollars), with the bulk of that cost being borne directly by the taxpayers through various federal and state government health programs. In the state of Maryland, the additional health insurance premium cost for family coverage attributed to uncompensated care was estimated at $948 annually. . . . Libertarian critics of the individual mandate make a compelling argument that it is a violation of personal liberty. . . . Libertarian critics make a far less compelling assessment that the growing costs of tens of billions of dollars worth of uncompensated care is relatively insignificant in the overall scheme of national healthcare spending.
Second, Moffit argues that his preferred alternative to the individual mandate should impose the equivalent of a tax penalty on uninsured individuals that would give individuals the choice of whether or not to purchase insurance.
Freedom consists in the ability to accept personal responsibility for one’s actions. Personal responsibility is not a product of external coercion, such as a mandate. It is a silly abuse of language to argue that "personal responsibility" somehow requires public officials to enact an individual mandate to make individuals do what they would not otherwise do. An individual mandate is incompatible with the internally directed exercise of the freedom of one’s intellect and will and thus alien to any concept of personal responsibility.

The mandate takes the form of a specific command. There is a world of difference between (a) issuing such a command and (b) making the range of choices and consequences plain and transparent before the choice is exercised. One may do X, and Y consequence will follow (i.e., one will get access to the bounteous benefits of health insurance and reduce one’s dependence on one’s fellow citizens); or one may choose options A, B, or C, and each of these choices, too, will come with a specific consequence that one can and will understand beforehand.
Moffit argues that the best way to serve the policy goals of the individual mandate while preserving economic liberty is to structure the mandate as a tax penalty, i.e., the loss of something of value (a tax break or refundable credit) if the individual decides not to self insure:
Ideally, tax breaks or refundable credits should be structured to enable individuals or families to secure an adequate package of benefits that would at a minimum guarantee them ample protection against catastrophic illness.

Once again, if the insurance and the subsidies are made clearly available, then one’s decision not to take advantage of the insurance and the tax break or subsidy, in writing, affirmatively rejecting both, in effect constitutes its own “penalty.”
If an individual is offered a $2,500 tax credit, for example, to buy insurance and refuses to do so, that person obviously incurs a $2,500 tax penalty. But it is a tax penalty that is self–inflicted, not externally imposed. In either case, under the new tax regime, the law would impose a tax penalty just as it would under an individual mandate.
In fact, the individual mandate in the new health bill is structured as a tax, which presents individuals with a choice, and each choice has consequences knowable in advance. If an individual does not buy health insurance, he or she pays a penalty tax of a fixed amount or a percentage of adjusted gross income, whichever is larger.

In this way the law preserves Moffit's focus on personal responsibility. Individuals can either buy insurance or pay the tax penalty. If Moffit believes that his preferred solution involving a tax penalty is constitutional, he should also support the constitutionality of the current scheme.

The key difference between Moffit's proposal and the current health care law is that Moffit wants to structure the choice in terms of whether or not to lose a tax credit or tax deduction, while the new law structures the choice in terms of a decision whether or not to pay an additional tax.

Perhaps Moffit's view about the constitutionality of the new bill turns on this distinction. But if so, it is hard to see why Moffit characterized the loss of a tax credit or tax deduction as a tax penalty. It is especially hard to see since Moffit also argues that individuals should be enrolled in health care insurance programs unless they specifically opt out. Thus, Moffit imagines the relevant baseline for comparison to be a world in which individuals have health insurance, and people who opt out are penalized for doing so.

I think that Moffit's proposal for a tax credit for individuals who choose to purchase insurance may be a better (and dare I say it) more progressive solution coming from the Heritage Foundation. The constitutional question, however, is whether structuring the choice presented to the individual in terms of the loss of a tax credit or the imposition of an additional tax is a distinction with any constitutional difference. The answer is no. Generally speaking, where no fundamental liberty (like freedom of speech) is involved, government can structure tax incentives either way under the General Welfare Clause.

Moffit may also be arguing that structuring the choice in terms of an additional tax (instead of withholding a tax credit) violates the Constitution because it is a capitation or head tax that must be apportioned among the states by population. But capitation taxes are levied on the general population regardless of what they do, not in consequence of their actions. Both Moffit's preferred solution and the new health care reform bill structure the tax as the consequence of a choice, which subjects the individual to tax consequences. Therefore neither proposal is a capitation or head tax, even if we characterized either or both as tax penalties.

Sunday, April 18, 2010

Judicial confirmations and nuclear disarmament

Sandy Levinson

I noticed with great interest that President Barack Obama signed an important treaty with Russia on nuclear weapons the same week that his nominee to the Ninth Circuit, Professor Goodwin Liu was savaged by Republicans seeking to prevent the President from being able to name anyone unacceptable to the GOP to the federal judiciary. I was remined of an article that David Law (now at Washington in St. Louis School of Law) and I co-authored several years ago an article tellingly titled “Why Nuclear Disarmament May be Easier to Achieve than an End to Partisan Conflict over Judicial Appointments.” We argued both that there were not obvious persons to negotiate with and, even more to the point, no way of making the negotiators comply in the future with whatever they happened to agree to, not least, of course, because they might disappear from the political scene and their particular political parties might become ever more resistant to any kind of "compromise."

It obviously remains to be seen whether the Democrats will have the backbone to stand up to Republicans, including invoking the "nuclear option" of eliminating filibusters. As it happens, I think that the case for filibustering judicial nominations is considerably stronger than the case for filibustering "ordinary legislation," given the importance of lifetime appointments, so I have decidedly mixed feelings about the "nuclear option." But, obviously, one can't tolerate ubiquitous filibustering. Elections should have consequences, including the packing of the federal judiciary with judges sympathetic to the President's broad constitutional vision.

Of one thing I am confident: If Goodwin Liu is successfully blocked, then, then Republicans get back into power, all Democrats will expect their/our champions to be equally ruthless and to prevent any Republican president from picking anyone not "acceptable" to them. The only way to bring this particular "war" to an end--[ADDITION: or, as David Law has suggested, achieve what might be a more stable equilibrium--end is to amend the Constitution and to require a two-thirds vote for confirmation (similar to Germany), which would require inter-party negotiation over any and all nominations unless one of them actually manages to get 67 seats in the Senate.

Goodwin Liu is an essential test for the Obama administration. He is indeed the equivalent of Antonin Scalia, Frank Easterbrook, Richard Posner, and the host of other able conservatives placed on the courts of appeals very early in the Reagan Administration, who provided the "bench" from which Reagan and Bush could draw for the Supreme Court. (To an astonishing degree, Clinton seemed to draw no lessons from the strategy of his Republican predecessors. One of his most distinguished nominees, Guido Calabresi, was clearly too old to be a credible Supreme Court nominee. He did, of course, make some other excellent appointments, including Diane Wood to the Seventh Circuit and Margaret McKeown to the Ninth Circuit, both of whom would make excellent justices.) If Obama and the Democrats in the Senate capitulate on the Liu nomination (the way they shamefully did on Dawn Johnson's nomination to head OLC), then, I submit, Dahlia Lithwick is altogether right to describe the mood among Obama supporters as approaching "despair" with regard to regaining control of the judiciary.

Where are the Liberal Icons on the Short List?

Mark Tushnet

There's been a curious blog-flap involving Dahlia Lithwick's column observing and joining the lament among ACS-types that none of their icons seems to appear on the Great Mentioner's lists for the Supreme Court nomination to fill Justice Stevens's seat, with responses by David Bernstein and Jonathan Adler. We can think sensibly about the question only by placing Supreme Court nominations in a wider political and historical frame.

The starting point is to observe that President Reagan's nominations of "movement conservatives" to the Supreme Court began in 1986, with Justice Scalia and the promotion of Chief Justice Rehnquist, and that the next try, with Judge Bork, met with defeat. Two observations, one simply about the dates: These nominations occurred well into President Reagan's term in office, when he had already begun to achieve some of the regime reconstruction he and his supporters sought; and, by the time of the nominations, the administration had developed its own "farm team," people who had been named to the bench by President Reagan.

President Obama is not in anything like the same position. Even assuming (as I do, but as I know others question) that President Obama seeks to become a reconstructive president, it is still early days of the process, which of course may not succeed anyway. The liberal icons Lithwick mentions have, for all practical purposes, no connection to the Obama Administration; it has no farm team of its own yet. The correct counsel to the liberal law students she describes is, "Patience, patience -- your time will come."

(By the way, what am I, chopped liver? President Obama has been characterized by his opponents as a socialist, about which see my day-after-the-election post "Mandate for Socialism," [scroll down], so why not consider the only [as far as I know] reasonably prominent scholar of constitutional law who has argued, somewhat tongue-in-cheek and for other purposes, that the Constitution should be construed as a charter for democratic socialism?)

Friday, April 16, 2010

A Tale Told by a President

Mark Graber

Just sent off this short essay on the State of the Union. Happy to send the full piece to interested readers.

President Barack Obama’s State of the Union address has been described both as “full of sound and fury” and as “signifying nothing.” Critics have lambasted the President for insulting the justices who were present for his address. Professor Randy Barnett asked, “In the history of the State of the Union has any President ever called out the Supreme Court by name, and egged on the Congress to jeer a Supreme Court decision, while the Justices were seated politely before him surrounded by hundreds [of] Congressmen?” Others have indicated that Obama’s rhetoric was moderate and a normal reaction to judicial rulings the chief executive thought wrong. Linda Greenhouse observed, “The president’s tone was mild compared to the animation in some other parts of the speech.”

Commentators might better appreciate the recent constitutional winter (“of our discontent”?) by remembering the Macbeth speaks of “poor player” who “struts and frets his hour upon the stage” immediately before his famous observation that life is “a tale told by an idiot.” Presidents only have a brief time to remake politics in their image. Time is short both because constitutional rules limit the chief executive to a maximum of two four year terms and because, in American politics, the political window for substantial progressive reform tends to close quickly. President Obama in his first year of office attempted to achieve his goals by rallying a bipartisan consensus in favor of health care and other measures. That effort failed. The State of the Union may demonstrate a new willingness to play “constitutional hardball” with Republicans (see Mark Tushnet's piece in Minnesota). This constitutional hardball was presaged by mere words against the Republican dominated federal judiciary, but was manifested more seriously in the President’s subsequent willingness to circumvent the various veto points, most notably the filibuster, in the national legislative process that had previous enabled Republicans to prevent the passage of health care reform. The majority Democratic Party, Obama’s State of the Union may have declared in retrospect, will no longer permit the minority Republicans Party to rely on preexisting political procedures to prevent or stall progressive legislation.

New Directions In Terrorism Policy

Rick Pildes

David Golove

In the wake of Eric Holder’s recent testimony before Congress, and as the Obama administration continues to wrestle with whether to try Khalid Sheik Mohammed before an ordinary or military court, it’s important to recognize the deep source of the ongoing struggle over terrorism policy and law. The question of whether modern terrorism is more like crime or war is the wrong question. And as the incisive constitutional scholar, Alexander Bickel, once wrote, no answer is what the wrong question begets. Neither the developed legal framework for dealing with crime or war is adequate for responding to terrorism. That is part of why debates remain so polarizing: Insisting that either the war or crime model must be the right one, in an either-or-choice, will inevitably lead to divisive debates in which both sides can do little more than talk past one another. The only sustainable solution is going to require recognizing the need for intermediate approaches that borrow from both the war and crime models, while embracing neither in full. And institutionally, the best way of forging those approaches will be through shared responsibility between Congress and the President, even in these highly polarized times.

Congress and the Supreme Court have recognized already that the crime model is not fully sufficient. In the Authorization for the Use of Military Force, passed shortly after 9/11, Congress authorized the President to employ military force against those responsible. The Supreme Court concluded that this legalized detentions that were consistent with the traditional “laws of war.” While the precise contours of this detention power remain unclear, the judicial and political endorsement of military detention makes clear that modern terrorism has called into play the government’s war powers. Similarly, Congress clearly contemplates the use of military commissions to try at least some enemy combatants; in the fall of 2009, Congress and President Obama crafted new legislation to provide more structure to the rules and processes that will govern these commissions. And while the decision of where to try KSM remains controversial, the decision to try the U.S.S. Cole bombers before military commissions appears much less so. These are all signs of a political consensus that the ordinary processes of criminal law, which undoubtedly have some role to play in counterterrorism law, are nonetheless not fully adequate. To insist that only the crime model should be applied to terrorism is to resist a conclusion that all three branches of government, across two administrations now, have reached.

Yet to conclude the crime model is not fully adequate is not to say that the war model is. Government’s constitutional war powers will surely play a role, as they have. But for at least two reasons, the war model is also not fully up to the task of deciding the legal powers that government has, or should use, in countering terrorism. First, the war model – like the crime model – was not developed to address the unique problems of modern non-state terrorism. Those problems raise many practical difficulties that the traditional laws of war, and the American constitutional tradition of war powers, have never confronted. The most obvious of these is the prospect of indefinite military detention, a prospect made more pressing now that the Obama administration has concluded that around 48 people at Guantanamo are too dangerous to release, but cannot properly be tried for various reasons. Traditionally, countries engaged in exchanges of prisoners of war, both during the war and at its end. Neither American constitutional practice, nor the international laws of war, contain any direct answer as to the rules and procedures that ought to govern detention for wars that quite plausibly may last for decades.

Yet policy concerning ongoing detention is one of the most urgent issues the United States faces. For nearly a decade now, we have stumbled around this issue, unwilling to confront the reality that we are engaging in preventive detention. Any such system, particularly under military custody, provokes many understandable concerns. Even if the initial decision to detain is legally valid, for how long should detention last? Is detention appropriate only as long as the person remains dangerous? If so, what kind of hearings should be held to determine that issue? How often should those hearings have to be held? Before what kind of institutions? Should the courts be involved in overseeing the continuing validity of these detentions? Should the length of detention be related to the nature of the underlying actions for which the person was originally detained? It is of no help in answering those questions to say the country is “at war” and the government therefore possesses all its traditional war powers. For that tradition does not contain any direct answers to these novel questions. The answers to these questions cannot be left open-ended, nor be (or be seen to be) ad hoc responses to the political pressures of the moment. Yet if the government believes it must invoke these more aggressive measures, wise policy is going to recognize the need also to ensure they are employed with enough oversight and accountability to make them sustainable. If Congress and the President do not grasp the nettle on this point, the courts are likely to rush to fill the void.

The war model is also insufficient for a second reason. Pragmatic as it is, the American constitutional tradition accepts that during wartime government has an extraordinary set of war powers it otherwise lacks. At the same time, precisely because of the breadth of those powers, our constitutional tradition has also recognized that deep tension exists between the war powers and the principles of ordinary constitutional government. Much of our constitutional history since has been occupied in efforts to define the proper spheres of these two seemingly incompatible forms of government.

Grappling with this tension in the aftermath of the Civil War, the Supreme Court concluded that the government did not have the power to try an American citizen, captured in the United States for crimes committed here, before a military commission. And from 1867 through today, the United States has not used military commissions to try those captured in the United States, with the exception of a group of Nazi saboteurs brought to our shores by German U-boats and captured shortly after they set foot on our soil. Modern terrorism challenges this idea, of course, by its focus on launching attacks on U.S. soil. Yet to conclude from that ever present possibility that the government’s war powers ought to operate throughout the country is to give too little weight to the side of our constitutional tradition that tries to preserve, even in the face of this reality, as large a role as possible for the mechanisms of ordinary constitutional government.

Prudent White Houses would insist that Congress step up to the plate on these issues and share responsibility. The administration is reportedly now trying to find common ground with some Senators, such as Senator Graham, on a legislative approach. In the meantime, Senators McCain and Lieberman, unhappy that the Christmas day airplane bomber was given Miranda warnings right away, have already introduced legislation to bring greater clarity to the government’s terrorism policies. But their approach is based wholly on the war model; the clarity it provides is purchased at great cost. Their bill would take away any discretion from the President and require that all “enemy belligerents” be tried in military courts – no matter where they are captured, no matter where they committed their war crimes, no matter how high-level an operative or low-level a foot soldier might be involved. As a matter of formal legal power, the bill’s underlying premise might be correct: if the United States has the power to try any enemy belligerent before a military court, it has the power to try all enemy belligerents before such a court (with the exception of American citizens, a context the courts might look at differently). But by treating as irrelevant factors like whether a suspected enemy was captured in the United States, for crimes committed here, this approach gives no weight to the longstanding traditions that seek to keep the government’s extraordinary war powers within boundaries that do as little damage as possible to the commitments of the normal constitutional order.

Morever, while Congress has an essential role to play, it should not command the President to use one court system or the other. Even assuming Congress has the power to command the President in this way, the judgment of which courts to use can implicate military judgments as well as foreign relations concerns – areas that the constitutional tradition has generally left to executive judgment. If a country is willing to extradite a terrorist suspect only on condition that he be provided a civilian trial, for example, the President should have the option of deciding whether that deal serves the interests of the United States. Other legitimate foreign policy considerations are likely to inform the sensitive judgment about how to deal with terrorist suspects in some individual cases. Tying the President’s hands is, at the least, unwise.

The McCain-Lieberman approach seems driven in part by the belief that intelligence or military agencies ought to be able to interrogate captured enemy belligerents for at least a brief period before they are provided Miranda warnings and turned over to law enforcement. But if so, that would amount to the tail wagging the dog. The question of which tribunal should be used to try alleged enemies is separate from the question of whether they should be subject to a brief period of non-coercive military or intelligence interrogation before being turned over to law enforcement and the ordinary criminal process, including Miranda warnings. Should Congress and the White House believe the latter is a desirable option for non-citizens captured here, like the Christmas bomber, Congress can legislate to remove whatever existing statutory barriers, if any, might stand in the way of a two-stage process of this sort. This is exactly the kind of intermediate approach that borrows from both the war and crime models, but that would be on firmest ground if established through legislation.

To the extent constitutional debates would remain about such a system (which might depend on whether incriminating statements from the initial interrogation or their fruits were used at trial), the Supreme Court has always been most accepting of national-security policies the Congress and President have jointly created, rather than ones adopted through unilateral executive action. Thus, the view that alleged enemy combatants should not be given immediate Miranda warnings, as would be the case with the arrest of ordinary criminal suspects, do not justify a congressional prohibition on civilian trials altogether. Instead, they point to an important role that Congress can play. Rather than tying the hands of the President, Congress can act constructively by adopting rules that effectively remove potential fetters on the effective exercise of executive discretion.

In the years since 9/11, it has become clear that neither the war nor crime framework perfectly suits the range of distinct issues modern terrorism raises. That is not surprising: neither framework was constructed with this context in mind. To craft intermediate approaches and institutions on issues like detention, interrogation, and the forum for trials, we need shared legislative and executive responsibility. Frustrating as the American system of separated executive and legislative powers can be, that approach is the one most likely to yield policies with sufficiently broad consensus to be sustainable, in the courts, in the country, and overseas.

Thursday, April 15, 2010

JOTWELL Jurisprudence Section

Brian Tamanaha

The Jurisprudence section of JOTWELL (Journal of Things We Like (Lots)) went live this week. The brainchild of Michael Froomkin, JOTWELL publishes reviews to highlight outstanding recent articles (and sometimes books) in various fields.

Jurisprudence reviews will be written by the co-editors, a remarkable collection of jurisprudence scholars from around the world. Kicking off the journal is my review of Fred Schauer's "A Critical Guide to Vehicles in the Park" (here). Reviews written by Dennis Patterson and Brian Bix will be up in the next two weeks, followed soon thereafter with reviews written by Robin Kar, Ken Himma, and Connie Rosati. We also welcome jurisprudence reviews from others (send to Brian Bix or Brian Tamanaha).

Wednesday, April 14, 2010

What if it were Bush?

Sandy Levinson

Robert Wright has an excellent column (online) in tomorrow's Times, on "The Price of Assassination." In it he links to a post that takes Harold Koh to task for his defense of targeted killings by the US in Pakistan and elsewhere, noting, among other things, that Koh's argument would seemingly extend to killing anyone the United States deems affiliated with Al Qaeda or any other similar group, regardless of geographical location. It is widely known that Obama has ordered more drone strikes in his year in office than George W. Bush did in his entire administration. One can only wonder what the response of the left would be if it were Bush (and, say, John Yoo) engaging in (and defending) the actions that seem central to the Obama Administration's policy in Pakistan (and Yemen and....). The most ominous part of Wright's column is an argument that the policy is very likely to be counterproductive, for a number of reasons he goes into. So there may be a "negative trifecta," i.e., a policy that raises serious moral and legal questions and is counterproductive to boot.

I note that Jack Goldsmith gave an excellent talk at the University of Texas last week making the argument that in almost all fundamental respects the Obama Administration is continuing the "anti- and counter-terrorism" policies of the "second Bush Administration," i.e., the second-term Bush presidency that freed itself, to at least some extent, from the mad-dog unilaterlism identified with Dick Cheney, David Addington, and John Yoo. It is difficult to disagree with Goldsmith's argument, empirically. Whether we should be cheered or dejected is, of course, another matter entirely. (Dejection is the only proper response, for example, to the decision by the Obama Administration to case Dawn Johnson adrift. As the Times suggested in a powerful editorial aptly titled "Politics 1, Rule of Law 0," "the ill treatment of Ms. Johnsen," both by the unscrupulous Republicans who campaigned against her, but, altogether importantly, the Administration as well, which utterly failed to do anything serious to defend her or, of course, to make her a recess appointee, "send[s] a chilling message to lawyers and others who might be willing to do government service: don’t stand on principle and certainly don’t speak out in public."

Tuesday, April 13, 2010

Race, Region, and Vote Choice in the 2008 Election: Implications for the Future of the Voting Rights Act

Nate Persily

The Harvard Law Review has just published my article coauthored with Stephen Ansolabehere and Charles Stewart III, Race, Region and Vote Choice in the 2008 Election: Implications for the Future of the Voting Rights Act. This article grew out of an amicus brief we filed last year in NAMUDNO v. Holder, the case challenging the constitutionality of section 5 of the VRA. The abstract appears below:

The election of an African American as President of the United States has raised questions regarding the continued relevance and even constitutionality of various provisions of the Voting Rights Act (VRA). Barack Obama’s apparent success among white voters in 2008 has caused some commentators to question the background conditions of racially polarized voting that are key to litigation under section 2 of the VRA. His success in certain states, such as Virginia, has also raised doubts about the formula for coverage of jurisdictions under section 5 of the VRA. This Article examines the data from the 2008 primary and general elections to assess the geographic patterns of racial differences in voting behavior. The data suggest that significant differences remain between white and minority voters and among jurisdictions that are covered and not covered by section 5 of the VRA. These differences remain even when controlling for partisanship, ideology, and a host of other politically relevant variables. This Article discusses the implications of President Obama’s election for legal conceptions of racially polarized voting and for decisions concerning which jurisdictions section 5 ought to cover.

Another constitutional challenge has now been filed against section 5. This one arises out of Kinston, North Carolina. The DOJ denied preclearance to a proposed change to nonpartisan elections. There may be serious and interesting standing problems in this case, but if it gets to the Supreme Court, a majority is likely to be very sympathetic given the facts.

A Justice who will Sustain Emancipation and Legal Tender


When Abraham Lincoln explained why he had nominated Salmon P. Chase, one of his political rivals, for Chief Justice in 1864, he explained that "we want a man who will sustain the Legal Tender Act and the Proclamation of Emancipation. We cannot ask a candidate what he would do; and if we did and he should answer, we should only despise him for it."

Lincoln's quote tells you most of what you need to know about what President Obama will do in picking a replacement for Justice Stevens. And it also tells you a little about the unpredictability of appointments years later.

First, President Obama will pick someone who he thinks is likely not to cost him more political capital than necessary. Since the Democrats have a lot on their plates and this is an election year, this means a candidate who will be relatively easy to confirm.

Second, and equally important, President Obama will nominate someone who is likely to sustain the President's policies while he is in office, first, on the issues he cares about most at the time and, secondarily, the issues necessary to keep his political coalition together. In Lincoln's day this was the Emancipation Proclamation and the use of paper money as legal tender, each of which was subject to serious constitutional objections. Indeed, the Supreme Court struck down paper money in the first of the legal tender cases, Hepburn v. Griswold, only to uphold it a year later in the second legal tender case, Knox v. Lee. The constitutionality of the Emancipation Proclamation-- which freed blacks in rebel territory-- was only definitively settled with the Thirteenth Amendment in 1865 (banning slavery) and section 4 of the Fourteenth Amendment in 1868 (banning claims for emancipation).

Ironically, although Lincoln appointed Chase because he believed Chase would vote to uphold the legal tender act (Chase had been Treasury Secretary during the Lincoln Administration), after the war Chase ultimately voted to strike down the law in 1870. It is possible that Chase did so in part because he still thought he could become President in 1872, this time as a hard-money Democrat. It was not to be, however. Ulysses S. Grant nominated two Republicans, William Strong and Joseph Bradley, who voted to reverse Hepburn in Knox v. Lee. With enough appointments, the Republicans finally secured the legality of paper money. Presidents cannot be certain how their appointees will vote years after the fact. However, if they keep getting appointments, they can stock the courts with Justices who mostly view things their way, especially during their Presidency. Franklin Roosevelt wanted Justices who would uphold his New Deal programs. His appointees-- all nine of them-- did. Later they disagreed among themselves about civil rights issues. But that was not why Roosevelt appointed them.

What is the modern equivalent of emancipation and legal tender for President Obama? It would probably be, in no particular order, support for the constitutionality of the recently passed health care bill, preservation of Roe v. Wade (as modified by Casey), and support for robust (but not necessarily unilateral) Presidential power in surveillance, detention, military commission, rendition, and other war on terror issues. With a few notable exceptions, President Obama has adopted most of President Bush's war on terror policies, especially the versions during Bush's second term. At the same time, Congress has ratified many of these policies through legislation, including the FISA Amendments Act of 2008 and the Military Commissions Acts of 2006 and 2009. Obama wants all of these war on terror policies upheld. He doesn't want any trouble from his nominees on these issues. That is to say, he hopes for someone who will not be like Salmon Chase, who double-crossed him on legal tender. And because Supreme Court Justices today rarely have presidential ambitions, Obama is much more likely to get what he wants.

Who would be most likely to satisfy these criteria? One possibility would be someone who had served in the executive branch (and thus is predisposed to Presidential assertions of power) but is a also social liberal who believes in robust federal regulatory power. You do the math.

Thursday, April 08, 2010

Go Tiger

Sandy Levinson

I have, like other contributors to Balkinization, refrained from commenting on the Tiger Woods spectacle, though I confess that I have been ambivalent about whether I continued to wish him well on the golf course. But any ambivalence was removed upon reading a story to appear in the New York Times. It details the "rebuke" directed at Mr. Woods by Billy Payne, the chairman of Augusta National Golf Club. Mr. Payne, with rightous indignation, harrumphed that Mr. Woods "disappointed all of us, and more importantly, our kids and our grandkids” by his rather spectacular fall from monogamy.

This is touching--perhaps Mr. Payne's great-grandfather pleaded with Shoeless Joe Jackson to "say it isn't so"--but I confess to feeling that Mr. Payne's outrage might better be directed at many of his fellow Club members, described by the Times as "chief executives from many of the country’s biggest corporations and investment banks as well as business leaders worldwide." And, of course, every single one of his fellow members is male, since Augusta National is notorious for being a bastion of sexism. But Mr. Payne is apparently shocked and outraged that Mr. Woods, along with being possibly the greatest golfer of all time, was, off the golf course, fucking lots of women other than his wife. But there is, to put it mildly, no similar outrage directed at his fellow Club members, i.e., the heads of "the country's biggest corporations and investment banks," who have, for many years, not only have been totally oblivious to the insult of maintaining Augusta National as an all-male institution, but have also been fucking their employees (metaphorically, of course, though, one suspects, in at least some cases, quite literally)[ADDITION: and, for that matter, their employers, i.e., shareholders who might, if asked, have objected to the obscene salaries that many of these corporate denizens no doubt collected] and, in the case of the investment bankers especially, fucking the entire American (and worldwide) public amd using their ill-gotten gains to pay whatever it costs to maintain one's membership at Augusta National Golf Club.

So my wish for this April season is that Tiger (at least metaphorically) tears Augusta National apart, winning by, say, fifteen or twenty strokes, and then tells Mr. Payne, in no uncertain terms, what he can do with his green championship coat. One of the reasons for ambivalence about Mr. Woods, quite independently of his sexual escapades, is that he has so consistently chosen to serve his corporate masters by distancing himself from any kinds of social or political controversies, including the scandalous sexism of Augusta National. That is, he has been an absolutely terrible role model of "citizenship" (like, to be sure, Michael Jordan, who also preferred to sell shoes rather than to engage in anything that might be called citizenship). Perhaps Mr. Woods will emerge from his treatment not only with a different approach to sex, but also with a backbone that will no longer be submissive to such hypocritical charlatans as Mr. Payne. In any case, forced to choose between Tiger Woods and Mr. Payne, my loyalties are with Tiger, who is by far the lesser threat to Americans children and grandchildren than the members of Augusta National Golf Club for whom Mr. Payne so sanctimoniously speaks.

[UPDATE: My new-found enthusiasm for Tiger is already waning, thanks to an editorial in today's Austin American Statesman that focuses on his expressed wish to once again become "a good investment" for American businesses who have backed off from gazillion dollar contracts for Tiger to flack their wares. He seems altogether willing to sell his soul to the corporations if only they will, once again, give him the chance. As someone suggested in the comments below, Tiger is only slightly more likely to call for a new constitutional convention to address our constitutional deficiencies than to tell Mr. Payne what he can do with his green coat. Go Tom Watson!!

Wednesday, April 07, 2010

Commandeering Federalism

Alison LaCroix

What light can the history of federalism shed on modern-day constitutional debates? Quite a lot – beginning with the important point that the search for the “real” federalism may in fact be a misguided quest. This is not to say that the idea of federalism is simply an empty shell or a rhetorical flourish devoid of content. But an understanding of American federalism’s beginnings does suggest that the Supreme Court’s recent “federalism revolution” has been neither revolutionary nor about federalism in any historically informed sense. Instead, the Court’s federalism doctrine has unthinkingly replicated centuries-old debates, even as some justices claim to have divined the concept’s one true meaning.

As I discussed in a previous post, the central tenet of federal ideology as it emerged in the late eighteenth century was a conviction that multiple levels of government could – indeed, should – exist within a composite polity such as British North America. Federalism has had a core of stable meaning since its first American incarnation as a doctrine of colonial resistance to the power of Parliament, but that meaning has centered on a commitment to governmental multiplicity itself more than a vision of a particular distribution of governmental authority. We might term this the first lesson that the history of federalism offers for modern constitutional doctrine: a reminder that overlap, concurrence, and multiplicity are and have always been the background principles of the American federal republic, not a temporary way station to be visited on the way to a more perfect – static, settled – national structure. The states may be laboratories, but we should not assume that the experiment will be able to produce a magic structural formula.

The American theory of federalism originated in the colonial and Revolutionary periods. Matters became even more complicated as political and legal actors attempted to institutionalize that theory in the 1790s and early 1800s. And here is the second lesson of federalism’s history for modern constitutional doctrine: uncertainty about the “real” meaning of federalism in practice has as long a lineage as federal ideas themselves. Similar debates to the ones that played out in the Court’s classic anticommandeering cases, New York v. U.S. (1992) and Printz v. United States (1997) (and that lurked behind the decision in Medellin v. Texas (2008)), took place in the first few decades of the Republic’s existence.

Beginning at least with the First Congress’s debates over the structure of the lower federal courts, early republican commentators articulated two distinct views of what federalism meant. The first group viewed federalism as requiring a clean division between the power of the general government and that of the states. They therefore opposed concurrent power, regarding it as liable to create confusion among citizens and thus to increase the risk that the general government would be able covertly to expand its brief. As Virginia judge Joseph Jones wrote to James Madison in 1789, “[W]here there is danger of clashing jurisdictions, the limits should be defined as ac[c]urately as may be, and this danger will exist where there are concurrent jurisdictions.”

The second group of commentators argued that the real imperative of federalism was to minimize the institutional footprint of the general government, either because of their normative beliefs about which level of government was more suited to handle a particular task, or because they feared that the creation of any centralized agencies or programs would amount to the thin edge of the nationalizing wedge. In the debates over the lower federal courts, observers such as the Antifederalist Luther Martin argued that requiring state courts to enforce U.S. law was a better means of protecting state sovereignty than insisting that federal law be carried out only through federal instrumentalities. Martin and his fellow watchdogs of state power preferred messily concurrent powers to neatly distinct ones. In modern terms, they chose commandeering over formal federalism. On their view, having county sheriffs performing background checks on gun purchasers at the request of Congress would be less offensive to the federal structure than the establishment of the Transportation Security Administration.

As this analogy suggests, these divisions among early republican commentators find striking echoes in the modern anticommandeering cases. For the majority in New York and Printz, federalism requires the type of structural, subject-matter-specific separation that advocates of a sharp line between federal and state judicial power demanded in the 1790s and 1800s. On this view, the job of a federalist judge is to police the formal boundaries between the states and the general government, rendering that which is federal unto the general government and keeping the rest for the states. Structural commitments to vertical separation of powers, as well as pragmatic considerations about accountability, are held to militate in favor of a clear delineation between levels of power, even if the downstream consequence of such a holding is to encourage the expansion of federal bureaucracies because Congress is not permitted to “commandeer” or “impress” the states into its service.

For the dissenters, meanwhile, the need to maintain a formal division between state and federal authority is less important than the impulse to encourage experimentation and cooperation among levels of government. In addition, these justices resist the majority’s claim to the federalist mantle and argue that their view in fact represents a stronger commitment to the real federalism. This is the “irony” that Justice White identified in his New York dissent: “in its formalistically rigid obeisance to ‘federalism,’ the Court gives Congress fewer incentives to defer to the wishes of state officials in achieving local solutions to local problems.” Like the early republicans who viewed state-court review of federal questions under the Supremacy Clause as both more convenient and normatively preferable to the creation of a system of lower federal courts, the dissenters in the anticommandeering cases seem relatively untroubled by the use of state institutions to carry out federal law.

Of course, the Supremacy Clause’s deputization of state courts to hear federal issues has not been understood as a potential federal commandeering of state institutions, in part because the requirement that state courts uphold federal law is textually based, and because it seems to go to the heart of the compromises reached at the Constitutional Convention.

So: is the real meaning of federalism a structural, almost aesthetic demarcation between the domain of the states and that of the general government, with special emphasis on preserving the states’ formal autonomy? Or is it more of a functional concern that permits some overlap and concurrence, in the name of a commitment to minimizing the expansion of congressional power? The historical record suggests that both accounts have a long pedigree, and that the real meaning of today’s federalism may be the same as that of the old federalism – with its ingrained commitment to apportionment without weighing the portions – after all.

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